EXHIBIT 10.6
Lease Agreement for
0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx
FIRST AMENDMENT TO LEASE AGREEMENT
This First Amendment is made this 23rd day of December, 2003, by and
between LIBERTY PROPERTY LIMITED PARTNERSHIP, a Pennsylvania limited partnership
(hereinafter "Landlord"), and SYNCHRONOSS TECHNOLOGIES, INC., a Delaware
corporation (hereinafter "Tenant").
WHEREAS, Landlord and Tenant entered into that certain Lease Agreement
dated January 31, 2002 (the "Lease"), relating to premises containing
approximately 22,000 rentable square feet (the "Premises") located in the
building known and identified as 0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxx (the "Building"); and
WHEREAS, Tenant desires to lease additional space in the Building for
a term of one (1) year and Landlord has agreed thereto.
NOW, THEREFORE, the parties hereto agree as follows;
1. All capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to them in the Lease.
2. For the period January 1, 2004 through December 31, 2004 (the
"Additional Premises Term"), the "Premises" under the Lease shall consist of
both the approximately 22,000 rentable square feet currently leased by Tenant
and an additional approximately 2,605 rentable square feet which is illustrated
on Exhibit "A" attached hereto (the "Additional Premises"). The Additional
Premises shall be delivered to Tenant on January 1, 2004 and accepted by Tenant
in its "as is" "where is" condition and Landlord shall have no obligations
whatsoever to improve same for Tenant's use and occupancy.
3. Commencing on January 1, 2004 (the "Effective Date") and continuing
during the Additional Premises Term, Tenant shall pay Minimum Annual Rent for
the Additional Premises, at the times and in the manner provided in the Lease,
in the amount of $39,075.00 in monthly installments of $3,256.25.
4. Commencing on the Effective Date and continuing during the
Additional Premises Term, Tenant shall pay Estimated Annual Operating Expenses
for the Additional Premises, at the times and in the manner provided in the
Lease, in the amount of $21,256.80 in monthly installments of $1,771.40, subject
to adjustment and reconciliation as set forth in the Lease.
5. Tenant's Proportionate Share with respect to the Additional
Premises shall be 3.47%.
6. The Expiration Date for the leasing of the Additional Premises
shall be December 31, 2004. Failure of Tenant to vacate the Additional Premises
on or before December 31, 2004, without Landlord's prior written approval, shall
be subject to the holdover provisions of the Lease.
7. Except as expressly modified hereby, the Lease shall remain in full
force and effect in accordance with its terms. Specifically, without limitation,
in the event of any default by Tenant of any of its obligations under the Lease,
as hereby amended, Landlord may pursue all remedies available under the Lease or
otherwise at law or in equity. Accordingly, Tenant agrees to the following:
(a) When the Lease, as hereby amended, and the Term or any
extension thereof shall have been terminated on account of any default by
Tenant, or when the
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Term or any extension thereof shall have expired, Tenant hereby authorizes any
attorney of any court of record of the Commonwealth of Pennsylvania to appear
for Tenant and for anyone claiming by, through or under Tenant and to confess
judgment against all such parties, and in favor of Landlord, in ejectment and
for the recovery of possession of the Premises, for which the Lease, as hereby
amended, or true and correct copies thereof shall be good and sufficient
warrant. AFTER THE ENTRY OF ANY SUCH JUDGMENT, A WRIT OF POSSESSION MAY BE
ISSUED THEREON WITHOUT FURTHER NOTICE TO TENANT AND WITHOUT A HEARING. If for
any reason after such action shall have been commenced it shall be determined
and possession of the Premises remain in or be restored to Tenant, Landlord
shall have the right for the same default and upon any subsequent default(s) or
upon the termination of the Lease or Tenant's right of possession as herein set
forth, to again confess judgment as herein provided, for which the Lease, as
hereby amended, or true and correct copies thereof shall be good and sufficient
warrant.
(b) If Tenant shall default in the payment of the Rent due under
the Lease, as hereby amended, Tenant hereby authorizes any attorney of any court
of record of the Commonwealth of Pennsylvania to appear for Tenant and to
confess judgment against Tenant, and in favor of Landlord, for all sums due
hereunder plus interest, costs and an attorney's collection commission equal to
the greater of 10% of all such sums or $1,000, for which the Lease, as hereby
amended, or a true and correct copy thereof shall be good and sufficient
warrant. TENANT UNDERSTANDS THAT THE FOREGOING PERMITS LANDLORD TO ENTER A
JUDGMENT AGAINST TENANT WITHOUT PRIOR NOTICE OR HEARING. ONCE SUCH A JUDGMENT
HAS BEEN ENTERED AGAINST TENANT, ONE OR MORE WRITS OF EXECUTION OR WRITS OF
GARNISHMENT MAY BE
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ISSUED THEREON WITHOUT FURTHER NOTICE TO TENANT AND WITHOUT A HEARING, AND,
PURSUANT TO SUCH WRITS, LANDLORD MAY CAUSE THE SHERIFF OF THE COUNTY IN WHICH
ANY PROPERTY OF TENANT IS LOCATED TO SEIZE TENANT'S PROPERTY BY LEVY OR
ATTACHMENT. IF THE JUDGMENT AGAINST TENANT REMAINS UNPAID AFTER SUCH LEVY OR
ATTACHMENT, LANDLORD CAN CAUSE SUCH PROPERTY TO BE SOLD BY THE SHERIFF EXECUTING
THE WRITS, OR, IF SUCH PROPERTY CONSISTS OF A DEBT OWED TO TENANT BY ANOTHER
ENTITY, LANDLORD CAN CAUSE SUCH DEBT TO BE PAID DIRECTLY TO LANDLORD IN AN
AMOUNT UP TO BUT NOT TO EXCEED THE AMOUNT OF THE JUDGMENT OBTAINED BY LANDLORD
AGAINST TENANT, PLUS THE COSTS OF THE EXECUTION. Such authority shall not be
exhausted by one exercise thereof, but judgment may be confessed as aforesaid
from time to time as often as any of said rental and other sums shall fall due
or be in arrears, and such powers may be exercised as well after the expiration
of the initial Term of the Lease, as hereby amended, and during any extended or
renewal Term of the Lease, as hereby amended, and after the expiration of any
extended or renewal Term of the Lease as hereby amended.
(c) The warrants of attorney to confess judgment set forth above
shall continue in full force and effect and be unaffected by amendments of the
Lease or other agreements between Landlord and Tenant even if any such
amendments or other agreements increase Tenant's obligations or expand the size
of the Premises. Tenant waives any procedural errors in connection with the
entry of any such judgment or in the issuance of any one or more writs of
possession or execution or garnishment thereon.
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(d) TENANT KNOWINGLY AND EXPRESSLY WAIVES (I) ANY RIGHT,
INCLUDING, WITHOUT LIMITATION, UNDER ANY APPLICABLE STATUTE, WHICH TENANT MAY
HAVE TO RECEIVE A NOTICE TO QUIT PRIOR TO LANDLORD COMMENCING AN ACTION FOR
REPOSSESSION OF THE PREMISES AND (II) ANY RIGHT WHICH TENANT MAY HAVE TO NOTICE
AND TO HEARING PRIOR TO A LEVY UPON OR ATTACHMENT OF TENANT'S PROPERTY OR
THEREAFTER.
8. Tenant acknowledges and agrees that the Lease is in full force and
effect and Tenant has no claims against Rent due or to become due thereunder.
9. This First Amendment shall be binding upon and inure to the benefit
of the parties and their respective successors and permitted assigns.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this First Amendment to Lease Agreement to be duly signed
the day and year first above written.
LIBERTY PROPERTY LIMITED PARTNERSHIP,
BY ITS SOLE GENERAL PARTNER, LIBERTY
PROPERTY TRUST
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Xxxxxx X. Xxxx
Senior Vice President, Regional
Director
SYNCHRONOSS TECHNOLOGIES, INC.
By: /s/ XXXXXXXX X. XXXXXX
-----------------------------------
Name: XXXXXXXX X. XXXXXX
Title: CFO
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0000 XXXXXX XXXXXX XXXXXXX - 2,605 SF
Xxxxxxxxx, XX 00000
(FLOOR PLAN)
0000 XXXXXX XXXXXX XXXXXXX XXXXX 000 XXXXXXXXX XX 000-000-0000 FAX 000-000-0000
EXHIBIT "A"
LEASE AGREEMENT
(Multi-Tenant Office)
INDEX
SECTION SECTION PAGE
------- ------- ----
1. Summary of Terms and Certain Definitions............................. l
2. Premises............................................................. 2
3. Acceptance of Premises............................................... 2
4. Use; Compliance...................................................... 2
5. Term................................................................. 2
6. Minimum Annual Rent.................................................. 2
7. Operation of Property; Payment of Expenses........................... 3
8. Signs................................................................ 5
9. Alterations and Fixtures............................................. 5
10. Mechanics' Liens..................................................... 5
11. Landlord's Right to Relocate Tenant; Right of Entry.................. 5
12. Damage by Fire or Other Casualty..................................... 6
13. Condemnation......................................................... 6
14. Non-Abatement of Rent................................................ 6
15. Indemnification of Landlord.......................................... 6
16. Waiver of Claims..................................................... 7
17. Quiet Enjoyment...................................................... 7
18. Assignment and Subletting............................................ 7
19. Subordination; Mortgagee's Rights.................................... 7
20. Recording; Tenant's Certificate...................................... 8
21. Surrender; Abandoned Property........................................ 8
22. Curing Tenant's Defaults............................................. 8
23. Defaults - Remedies.................................................. 8
24. Representations of Tenant............................................ 10
25. Liability of Landlord................................................ 10
26. Interpretation; Definitions.......................................... 10
27. Notices.............................................................. 11
28. Security Deposit..................................................... 11
RIDER
SECTION SECTION PAGE
------- ------- ----
29. PA Additional Remedies............................................... X-x
30. Condition of Premises................................................ R-2
31. Additional Provisions Relating to Minimum Annual Rent and
Definition of "Lease Year"........................................... R-2
32. Option to Extend Term................................................ R-3
33. Additional Provisions Relating to Premises........................... R-4
34. Additional Provisions Relating to Operation of Property; Payment
of Expenses.......................................................... R-5
35. Additional Provisions Relating to Signs.............................. R-5
36. Additional Provisions Relating to Landlord's Right to Relocate
Tenant; Right of Entry............................................... R-6
37. Additional Provisions Relating to Assignment and Subletting.......... R-6
38. Additional Provisions Relating to Subordination...................... R-6
39. Additional Provisions Relating to Surrender.......................... R-6
40. Additional Provisions Relating to Defaults - Remedies................ R-6
41. Additional Provisions Relating to Security Deposit................... R-7
42. Additional Provisions Relating to Building Rules..................... R-7
43. Tenant's Special Right of Early Termination.......................... R-8
44. Additional Space..................................................... R-8
THIS LEASE AGREEMENT is made by LIBERTY PROPERTY LIMITED PARTNERSHIP, a
Pennsylvania Limited Partnership ("LANDLORD") with its address at 0000 Xxxxxx
Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxx, XX, 00000 and SYNCHRONOSS TECHNOLOGIES,
INC., a corporation organized under the laws of Delaware ("TENANT") with its
address at 0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxxxxxx, XX 00000 and is dated as of
the date on which this lease has been fully executed by Landlord and Tenant.
1. SUMMARY AND CERTAIN DEFINITIONS.
(A) "PREMISES": Approximate rentable square feet: 22,000
(Section 2)
(B) "BUILDING": Approximate rentable square feet: 75,000
(Section 2) Address: 0000 Xxxxxx Xxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
(HANOVER TOWNSHIP, NORTHAMPTON COUNTY)
(C) "TERM": Ninety-one(91) months (Section 5).
(i) "COMMENCEMENT DATE": February 1, 2002.
(ii) "EXPIRATION DATE": See Section 5.
(D) MINIMUM RENT (Section 6) & OPERATING EXPENSES (Section 7).
(i) "MINIMUM ANNUAL RENT": See Section 31.
(ii) ESTIMATED "ANNUAL OPERATING EXPENSES": $153,120.00 (One Hundred
Fifty-Three Thousand One Hundred Twenty and 00/100 Dollars), payable in monthly
installments of $12,760.00 (Twelve Thousand Seven Hundred Sixty and 00/100
Dollars), subject to adjustment [Section 7(a)].
(E) "PROPORTIONATE SHARE" [Section 7(a)]: 29.33% (ratio of approximate
rentable square feet in
the Premises to
approximate rentable
square feet in the
Building).
(F) "USE" (Section 4): General business office use.
(G) "SECURITY DEPOSIT" (Section 28): $96,249.99 (Ninety-Six Thousand Two
Hundred Forty-Nine and 99/100 Dollars). See Section 41.
(H) CONTENTS: This lease consists of the Index, pages 1 through 11
containing Sections 1 through 28 and the following, all of
which are attached hereto and made a part of this lease:
Rider with Sections 29 through 44.
Exhibits: "A" - Plan showing Premises
"B" - Commencement Certificate Form
"C" - Building Rules
"D" - Cleaning Schedule
"E" - Tenant Estoppel Certificate
2. PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Premises as shown on attached Exhibit "A" within the Building (the
Building and the lot on which it is located, the "PROPERTY"), together with the
non-exclusive right with Landlord and other occupants of the Building to use all
areas and facilities provided by Landlord for the use of all tenants in the
Property including any lobbies, hallways, driveways, sidewalks and parking,
loading and landscaped areas (the "COMMON AREAS").
3. ACCEPTANCE OF PREMISES. Tenant has examined and knows the condition of the
Property, the zoning, streets, sidewalks, parking areas, curbs and access ways
adjoining it, visible easements, any surface conditions and the present uses,
and Tenant accepts them in the condition in which they now are, without relying
on any representation, covenant or warranty by Landlord. Tenant and its agents
shall have she right, at Tenant's own risk, expense and responsibility, at all
reasonable times prior to the Commencement Date, to enter the Premises for the
purpose of taking measurements and installing its furnishings and equipment;
provided that the Premises are vacant and Tenant obtains Landlord's prior
written consent.
4. USE; COMPLIANCE.
(A) PERMITTED USE. Tenant shall occupy and use the Premises for and only
for the Use specified in Section 1(f) above and in such a manner as is lawful,
reputable and will not create any nuisance or otherwise interfere with any other
tenant's normal operations or the management of the Building. Without limiting
the foregoing, such Use shall exclude any use that would cause the Premises or
the Property to be deemed a "place of public accommodation" under the Americans
with Disabilities Art (the "ADA") as further described in the Building Rules
(defined below). All Common Areas shall be subject to Landlord's exclusive
control and management at all times. Tenant shall not use or permit the use of
any portion of the Common Areas for other than their intended use.
(B) COMPLIANCE. From and after the Commencement Date, Tenant shall comply
promptly, at its sole expense, (including making any alterations or
improvements) with all laws (including the ADA), ordinances, notices, orders,
rules, regulations and requirements regulating the Property during the Term
which impose any duty upon Landlord or Tenant with respect to Tenant's use,
occupancy or alteration of, or Tenant's installations in or upon, the Property
including the Premises, (as the same may be amended, the "LAWS AND
REQUIREMENTS") and the building rules attached as Exhibit "C", as amended by
Landlord from time to time, (the "BUILDING RULES"). Provided, however, that
Tenant shall not be required to comply with the Laws and Requirements with
respect to the footings, foundations, structural steel columns and girders
forming a part of the Property unless the need for such compliance arises out of
Tenant's use, occupancy or alteration of the Property, or by any act or omission
of Tenant or any employees, agents, contractors, licensees or invitees
("AGENTS") of Tenant. With respect to Tenant's obligations as to the Property,
other than the Premises, at Landlord's option and at Tenants expense, Landlord
may comply with any repair, replacement or other construction requirements of
the Laws and Requirements and Tenant shall pay to Landlord all costs thereof as
additional rent.
(C) ENVIRONMENTAL. Tenant shall comply, at its sole expense, with all Laws
and Requirements as set forth above, all manufacturers' instructions and all
requirements of insurers relating to the treatment production, storage,
handling, transfer, processing, transporting, use, disposal and release of
hazardous substances, hazardous mixtures, chemicals, pollutants, petroleum
products, toxic or radioactive matter (the "RESTRICTED ACTIVITIES"). Tenant
shall deliver to Landlord copies of all Material Safety Data Sheets or other
written information prepared by manufacturers, importers or suppliers of any
chemical and all notices, filings, permits and any other written communications
from or to Tenant and any entity regulating any Restricted Activities.
(D) NOTICE. If at any time during or after the Term, Tenant becomes aware
of any inquiry, investigation or proceeding regarding the Restricted Activities
or becomes aware of any claims, actions or investigations regarding the ADA,
Tenant shall give Landlord written notice, within 5 days after first learning
thereof, providing all available information and copies of any notices.
5. TERM. The Term of this lease shall commence on the Commencement Data and
shall end at 11:59 p.m. on the last day of the Term (the "EXPIRATION DATE"),
without the necessity for notice from either party, unless sooner terminated in
accordance with the terms hereof. At Landlord's request, Tenant shall confirm
the Commencement Date and Expiration Date by executing a lease commencement
certificate in the form attached as Exhibit "B".
6. MINIMUM ANNUAL RENT. Tenant agrees to pay to Landlord the Minimum Annual Rent
in equal monthly installments is the amount set forth in Section 1(d) (as
increased at the beginning of each lease year as set forth in Section l(d)), in
advance, on the first day of each calendar month during the Term, without
notice, demand or setoff, at Landlord's address designated at the beginning of
this lease unless Landlord designates otherwise; provided that rent for the
first full month shall be paid at the signing of this lease. If the Commencement
Date falls on a day other than the first day of a calendar month, the rent shall
be apportioned pro rata on a per diem basis for the period from the Commencement
Date until the first day of the following calendar month and shall be paid on or
before the Commencement Date. As used in this lease, the term "LEASE YEAR" means
the period from the Commencement Date
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through the succeeding 12 full calendar months (including for the first lease
year any partial month from the Commencement Date until the first day of the
first full calendar month) and each successive 12 month period thereafter during
the Term.
7. OPERATION OF PROPERTY; PAYMENT OF EXPENSES.
(A) PAYMENT OF OPERATING EXPENSES. Tenant shall pay to Landlord the Annual
Operating Expenses in equal monthly installments in the amount set forth in
Section 1(d) (prorated for any partial month), from the Commencement Date and
continuing throughout the Term on the first day of each calendar month during
the Term, as additional rent, without notice, demand or setoff; provided that
the monthly installment for the first full month shall be paid at the signing of
this lease. Landlord shall apply such payments to the annual operating costs to
Landlord of operating and maintaining the Property during each calendar year of
the Term, which costs may include by way of example rather than limitation:
insurance premiums, fees, impositions, costs for repairs, maintenance, service
contracts, management and administrative fees, governmental permits, overhead
expenses, costs of furnishing water, sewer, gas, fuel, electricity, other
utility services, janitorial service, trash removal, security services,
landscaping and grounds maintenance, and the costs of any other items
attributable to operating or maintaining any or all of the Property excluding
any costs which under generally accepted accounting principles are capital
expenditures; provided, however, that annual operating costs also shall include
the annual amortization (over an assumed useful life of ten years) of the costs
(including financing charges) of building improvements made by Landlord to the
Property that are required by any governmental authority or for the purpose of
reducing operating expenses or directly enhancing the safety of tenants in the
Building generally. The amount of the Annual Operating Expenses set forth in
Section l(d) represents Landlord's estimate of Tenant's share of the estimated
operating costs during the first calendar year of the Term on an annualized
basis; from time to time Landlord may adjust such estimated amount if the
estimated operating costs increase. Tenant's obligation to pay the Annual
Operating Expenses pursuant to this Section 7 shall survive the expiration or
termination of this lease.
(i) COMPUTATION OF TENANT'S SHARE OF ANNUAL OPERATING COSTS. After the
end of each calendar year of the Term. Landlord shall compute Tenant's share of
the annual operating costs described above incurred during such calendar year by
(A) calculating an appropriate adjustment, using generally accepted accounting
principles, to avoid allocating to Tenant or to any other tenant (as the case
may be) those specific costs which Tenant or any other tenant has agreed to pay
(B) calculating an appropriate adjustment, using generally accepted accounting
principles, to avoid allocating to any vacant space those specific costs which
were not incurred for such space; and (C) multiplying the adjusted annual
operating costs by Tenant's Proportionate Share.
(ii) RECONCILIATION. By April 30th of each year (and as soon as
practical after the expiration or termination of this lease or at any time in
the event of a sale of the Property) Landlord shall provide Tenant with a
statement of the actual amount of such annual operating costs for the preceding
calendar year or part thereof. Landlord or Tenant shall pay to the other the
amount of any deficiency or overpayment then due from one to the other or, at
Landlord's option, Landlord may credit Tenant's account for any overpayment.
Tenant shall have the right to inspect the books and records used by Landlord in
calculating the annual operating costs within 60 days of receipt of the
statement during regular business hours after having given Landlord at least 48
hours prior written notice; provided, however, that Tenant shall make all
payments of additional rent without delay, and that Tenant's obligation to pay
such additional rent shall not be contingent on any such right.
(B) IMPOSITIONS. As used in this lease the term "impositions" refers to all
levies, taxes (including sales taxes and gross receipt taxes) and assessments,
which are applicable to the Term, and which are imposed by any authority or
under any law, ordinance or regulation thereof, or pursuant to any recorded
covenants or agreements, and the reasonable cost of contesting any of the
foregoing, upon or with respect to the Property or any part thereof, or any
improvement thereto. Tenant shall pay to Landlord with the monthly payment of
Minimum Annual Rent any imposition imposed directly upon this lease or the
Rent (defined in Section 7(g)) or amounts payable by any subtenants or other
occupants of the Premises, or against Landlord because of Landlord's estate or
interest herein.
(i) Nothing herein contained shall be interpreted as requiring Tenant
to pay any income, excess profits or corporate capital stock tax imposed or
assessed upon Landlord, unless such tax or any similar tax is levied or assessed
in lieu of all or any part of any imposition or an increase in any imposition.
(ii) If it shall not be lawful for Tenant to reimburse Landlord for
any of the impositions, the Minimum Annual Rent shall be increased by the amount
of the portion of such imposition allocable to Tenant, unless prohibited by law.
(C) INSURANCE.
(i) PROPERTY. Landlord shall keep in effect insurance against loss or
damage to the Building or the Property by fire and such other casualties as may
be included within fire, extended coverage and special form insurance covering
the full replacement
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cost of the Building (but excluding coverage of Tenant's personal property in,
and any alterations by Tenant to, the Premises), and such other insurance as
Landlord may reasonably deem appropriate or as may be required from time-to-time
by any mortgagee.
(ii) LIABILITY. Tenant, at its own expense, shall keep in effect
comprehensive general public liability insurance with respect to the Premises
and the Property, including contractual liability insurance, with such limits of
liability for bodily injury (including death) and property damage as reasonably
may be required by Landlord from time-to-time, but not less than a combined
single limit of $1,000,000 per occurrence and a general aggregate limit of not
less than $2,000,000 (which aggregate limit shall apply separately to each of
Tenant's locations if more than the Premises); however, such limits shall not
limit the liability of Tenant hereunder. The policy of comprehensive general
public liability insurance also shall name Landlord and Landlord's agent as
insured parties with respect to the Premises, shall be written on an
"occurrence" basis and not on a "claims made" basis, shall provide that it is
primary with respect to any policies carried by Landlord and that any coverage
carried by Landlord shall be excess insurance, shall provide that it shall not
be cancelable or reduced without at least 30 days prior written notice to
Landlord and shall be issued in form satisfactory to Landlord. The insurer shall
be a responsible insurance carrier which is authorized to issue such insurance
and licensed to do business in the state in which the Property is located and
which has at all times during the Term a rating of no less than A VII in the
most current edition of Best's Insurance Reports. Tenant shall deliver to
Landlord on or before the Commencement Date, and subsequently renewals of, a
certificate of insurance evidencing such coverage and the waiver of subrogation
described below.
(iii) WAIVER OF SUBROGATION. Landlord and Tenant shall have included
in their respective property insurance policies waivers of their respective
insurers' right of subrogation against the other party. If such a waiver should
be unobtainable or unenforceable, then such policies of insurance shall state
expressly that such policies shall not be invalidated if, before a casualty, the
insured waives the right of recovery against any party responsible for a
casualty covered by the policy.
(iv) INCREASE OF PREMIUMS. Tenant agrees not to do anything or fail to
do anything which will increase the cost of Landlord's insurance or which will
prevent Landlord from procuring policies (including public liability) from
companies and in a form satisfactory to Landlord. If any breach of the preceding
sentence by Tenant causes the rate of fire or other insurance to be increased,
Tenant shall pay the amount of such increase as additional rent promptly upon
being billed.
(D) REPAIRS AND MAINTENANCE; COMMON AREAS; BUILDING MANAGEMENT.
(i) Tenant at its sole expense shall maintain the Premises in a neat
and orderly condition.
(ii) Landlord, shall make all necessary repairs to the Premises, the
Common Areas and any other improvements located on the Property, provided that
Landlord shall have no responsibility to make any repair until Landlord receives
written notice of the need for such repair. Landlord shall operate and manage
the Property and shall maintain all Common Areas and any paved areas appurtenant
to the Property in a clean and orderly condition. Landlord reserves the right to
make alterations to the Common Areas from time to time.
(iii) Notwithstanding, anything herein to the contrary, repairs and
replacements to the Property including the Premises made necessary by Tenant's
use, occupancy or alteration of, or Tenant's installation in or upon the
Property or by any act or omission of Tenant or its Agents shall be made at the
sole expense of Tenant to the extent not covered by any applicable insurance
proceeds paid to Landlord. Tenant shall not bear the expense of any repairs or
replacements to the Property arising out of or caused by any other tenant's use,
occupancy or alteration of, or any other tenant's installation in or upon,
the Property or by any act or omission of any other tenant or any other
tenant's Agents.
(E) UTILITIES.
(i) Landlord will furnish the Premises with electricity, heating and
air conditioning for the normal use and occupancy of the Premises as general
offices between 8:00 am. and 6;00 p.m., Monday through Friday (legal holidays
excepted). If Tenant shall require electricity or install electrical equipment
including but not limited to electrical heating, refrigeration equipment,
electronic data processing machines, or machines or equipment using current in
excess of 110 volts, which will in any way increase the amount of electricity
usually furnished for use as general office space, or if Tenant shall attempt to
use the Premises in such a manner that the services to be furnished by Landlord
would be required during periods other than or in addition to business hours
referred to above, Tenant will obtain Landlord's prior written approval and will
pay for the resulting additional direct expense, including the expense resulting
from the installation of such equipment and meters, as additional rent promptly
upon being billed. Landlord shall not be responsible or liable for any
interruption in utility service, nor shall such interruption affect the
continuation or validity of this lease.
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(ii) If at any time utility services supplied to the Premises are
separately metered, the cost of installing Tenant's meter and the cost of such
separately metered utility service shall be paid by Tenant promptly upon being
billed.
(F) JANITORIAL SERVICES. Landlord will provide Tenant with trash removal
and janitorial services pursuant to a cleaning schedule attached as Exhibit "D".
(G) "RENT." The term "RENT" as used in this lease means the Minimum Annual
Rent, Annual Operating Expenses and any other additional rent or sums payable by
Tenant to Landlord pursuant to this lease, all of which shall be deemed rent for
purposes of Landlord's rights and remedies with respect thereto. Tenant shall
pay all Rent to Landlord within 30 days after Tenant is billed, unless otherwise
provided in this lease, and interest shall accrue on all sums due but unpaid.
8. SIGNS. Landlord, at Landlord's expense, will place Tenant's name and suite
number on the Building standard sign and on or beside the entrance door to the
Premises. Except for signs which are located wholly within the interior of the
Premises and not visible from the exterior of the Premises, no signs shall be
placed on the Property without the prior written consent of Landlord. All signs
installed by Tenant shall be maintained by Tenant in good condition and Tenant
shall remove ail such signs at the termination of this lease and shall repair
any damage caused by such installation, existence or removal.
9. ALTERATIONS AND FIXTURES.
(A) Subject to Section 10, Tenant shall have the right to install its trade
fixtures in the Premises, provided that no such installation or removal thereof
shall affect any structural portion of the Property nor any utility lines,
communications lines, equipment or facilities in the Building serving any tenant
other than Tenant. At the expiration or termination of this lease and at the
option of Landlord or Tenant, Tenant shall remove such installations and, in
the event of such removal, Tenant shall repair any damage caused by such
installation or removal; if Tenant, with Landlord's written consent, elects not
to remove such installation(s) at the expiration or termination of this lease,
all such installations shall remain on the Property and become the property of
Landlord without payment by Landlord.
(B) Except for non-structural changes which do not exceed $5000 in the
aggregate, Tenant shall not make or permit to be made any alterations to the
Premises without Landlord's prior written consent. Tenant shall pay the costs of
any required architectural/engineering reviews. In making any alterations, (i)
Tenant shall deliver to Landlord the plans, specifications and necessary
permits, together with certificates evidencing that Tenant's contractors and
subcontractors have adequate insurance coverage naming Landlord and Landlord's
agent as additional insureds, at least 10 days prior to commencement thereof,
(ii) such alterations shall not impair the structural strength of the Building
or any other improvements or reduce the value of the Property or affect any
utility lines, communications lines, equipment or facilities in the Building
serving any tenant other than Tenant, (iii) Tenant shall comply with Section 10
and (iv) the occupants of the Building and of any adjoining property shall not
be disturbed thereby. All alterations to the Premises by Tenant shall be the
property of Tenant until the expiration or termination of this, lease; at that
time all such alterations shall remain on the Property and become the property
of Landlord without payment by Landlord unless Landlord gives written notice to
Tenant to remove the same, in which event Tenant will remove such alterations
and repair any resulting damage. At Tenant's request prior to Tenant making any
alterations, Landlord shall notify Tenant in writing, whether Tenant is required
to remove such alterations at the expiration or termination of this lease.
10. MECHANICS' LIENS. Tenant shall pay promptly any contractors and materialmen
who supply labor, work or materials to Tenant at the Property and shall take all
steps permitted by law in order to avoid the imposition of any mechanic's lien
upon all or any portion of the Property. Should any such lien or notice of lien
be filed for work performed for Tenant other than by Landlord, Tenant shall bond
against or discharge the same within 5 days after Tenant has notice that the
lien or claim is filed regardless of the validity of such lien or claim. Nothing
in this lease is intended to authorize Tenant to do or cause any work to be done
or materials to be supplied for the account of Landlord, all of the same to be
solely for Tenant's account and at Tenant's risk and expense. Throughout this
lease the term "MECHANIC'S LIEN" is used to include any lien, encumbrance or
charge levied or imposed upon all or any portion of, interest in or income from
the Property on account of any mechanic's, laborer's, materialman's or
construction lien or arising out of any debt or liability to or any claim of any
contractor, mechanic, supplier, materialman or laborer and shall include any
mechanic's notice of intention to file a lien given to Landlord or Tenant, any
stop order given to Landlord or Tenant, any notice of refusal to pay naming
Landlord or Tenant and any injunctive or equitable action brought by any person
claiming to be entitled to any mechanic's xxxx,
00. LANDLORD'S RIGHT TO RELOCATE TENANT; RIGHT OF ENTRY.
(A) Landlord may cause Tenant to relocate from the Premises to a comparable
space ("RELOCATION SPACE") within the Building by giving written notice to
Tenant at least 60 days in advance, provided that Landlord shall pay for all
reasonable costs of
5
such relocation. Such a relocation shall not terminate, modify or otherwise
affect this lease except that "Premises" shall refer to the Relocation Space
rather than the old location identified in Section I(a).
(B) Tenant shall permit Landlord and its Agents to enter the Premises at
all reasonable times following reasonable notice (except in the event of an
emergency), for the purpose of inspection, maintenance or making repairs,
alterations or additions as well as to exhibit the Premises for the purpose of
sale or mortgage and, during the last 12 months of the Term, to exhibit the
Premises to any prospective tenant. Landlord will make reasonable efforts not to
inconvenience Tenant in exercising the foregoing rights, but shall not be liable
for any loss of occupation or quiet enjoyment thereby occasioned.
12. DAMAGE BY FIRE OR OTHER CASUALTY.
(A) If the Premises or Building shall be damaged or destroyed by fire or
other casualty, Tenant promptly shall notify Landlord and Landlord, subject to
the conditions set forth in this Section 12, shall repair such damage and
restore the Premises to substantially the same condition in which they were
immediately prior to such damage or destruction, but not including the repair,
restoration or replacement of the fixtures or alterations installed by Tenant
Landlord shall notify Tenant in writing, within 30 days after the date of the
casualty, if Landlord anticipates that the restoration will take more than 180
days from the data of the casualty to complete; in such event, either Landlord
or Tenant may terminate this lease effective as of the date of casualty by
giving written notice to the other within 10 days after Landlord's notice.
Further, if a casualty occurs during the last 12 months of the Term or any
extension thereof Landlord may cancel this lease unless Tenant has the right to
extend the Term for at least 3 more years and does so within 30 days after the
date of the casualty.
(B) Landlord shall maintain a 12 month rental coverage endorsement or other
comparable form of coverage as part of its fire, extended coverage and special
form insurance. Tenant will receive an abatement of its Minimum Annual Rent and
Annual Operating Expenses So the extent the Premises are rendered untenantable
as determined by the carrier providing the rental coverage endorsement.
13. CONDEMNATION.
(A) TERMINATION. If (i) all of the Premises are taken by a condemnation or
otherwise for any public or quasi-public use, (ii) any part of the Premises is
so taken and the remainder thereof is insufficient for the reasonable operation
of Tenant's business or (iii) any of the Property is so taken, and, in
Landlord's opinion, it would be impractical or the condemnation proceeds are
insufficient to restore the remainder of the Property, then this lease shall
terminate and all unaccrued obligations hereunder shall cease as of the day
before possession is taken by the condemnor.
(B) PARTIAL TAKING. If there is a condemnation and this lease has not been
terminated pursuant to this Section, (i) Landlord shall restore the Building and
the improvements which are a part of the Premises to a condition and size as
nearly comparable as reasonably possible to the condition and size thereof
immediately prior to the date upon which, the condemnor took possession and (ii)
the obligations of Landlord and Tenant shall be unaffected by such condemnation
except that there shall be an equitable abatement of the Minimum Annual Rent
according to the rental value of the Premises before and after the date upon
which the condemnor took possession and/or the date Landlord completes such
restoration.
(C) AWARD. In the event of a condemnation affecting Tenant, Tenant shall
have the right to make a claim against the condemnor for moving expenses and
business dislocation damages to the extent that such claim does not reduce the
sums otherwise, payable by the condemnor to Landlord. Except as aforesaid
and except as set forth in (d) below, Tenant hereby assigns all claims against
the condemnor to Landlord.
(D) TEMPORARY TAKING. No temporary taking of the Premises shall terminate
this lease or give Tenant any right to any rental abatement. Such a temporary
taking will be treated as if Tenant had sublet the Premises to the condemnor and
had assigned the proceeds of the subletting to Landlord to be applied on account
of Tenant's obligations hereunder. Any award for such a temporary taking during
the Term shall be applied first, to Landlord's costs of collection and, second,
on account of sums owing by Tenant hereunder, and if such amounts applied on
account of sums owing by Tenant hereunder should exceed the entire amount owing
by Tenant for the remainder of the Term, the excess will be paid to Tenant
14. NON-ABATEMENT OF RENT. Except as otherwise expressly provided as to damage
by fire or other casualty in Section 12(b) and is to condemnation in Section
13(b), there shall be no abatement or reduction of the Rent for any cause
whatsoever, and this lease shall not terminate, and Tenant shall not be entitled
to surrender the Premises.
15. INDEMNIFICATION OF LANDLORD. Subject to Sections 7(c)(iii) and 16, Tenant
will protect, indemnify and hold harmless Landlord and its Agents from and
against any and all claims, actions, damages, liability and expense (including
fees of attorneys, investigators
6
and experts) in connection with loss of life, personal injury or damage to
property in or about the Premises or arising out of the occupancy or use of the
Premises by Tenant or its Agents or occasioned wholly or in part by any act or
omission of Tenant or its Agents, whether prior to, during or after the Term,
except to the extent such loss, injury or damage was caused by the negligence of
Landlord or its Agents. In case any action or proceeding is brought against
Landlord and/or its Agents by reason of the foregoing. Tenant, at its expense,
shall resist and defend such action or proceeding, or cause the same to be
resisted and defended by counsel (reasonably acceptable to Landlord and its
Agents) designated by the insurer whose policy covers such occurrence or by
counsel designated by Tenant and approved by Landlord and its Agents. Tenant's
obligations pursuant to this Section 15 shall survive the expiration or
termination of this lease.
16. WAIVER OF CLAIMS. Landlord and Tenant each hereby waives all claims for
recovery against the other for any loss or damage which may be inflicted upon
the property of such party even if such loss or damage shall be brought about by
the fault or negligence of the other party or its Agents; provided, however,
that such waiver by Landlord shall not be effective with respect to any
liability of Tenant described in Sections 4(c) and 7(d)(iii).
17. QUIET ENJOYMENT. Landlord covenants that Tenant, upon performing all of its
covenants, agreements and conditions of this lease, shall have quiet and
peaceful possession of the Premises as against anyone claiming by or through
Landlord, subject, however, to the exceptions, reservations and conditions of
this lease.
18. ASSIGNMENT AND SUBLETTING.
(A) LIMITATION. Tenant shall not transfer this lease, voluntarily or by
operation of law, without the prior written consent of Landlord which shall not
be withheld unreasonably. However, Landlord's consent shall not be required in
the event of any transfer by Tenant to an affiliate of Tenant which is at least
as creditworthy as Tenant as of the date of this lease and provided. Tenant
delivers to Landlord the instrument described in Section (c)(iii) below,
together with a certification of such creditworthiness by Tenant and such
affiliate. Any transfer not in conformity with this Section 18 shall be void at
the option of Landlord, and Landlord may exercise any or all of its rights under
Section 23. A consent to one transfer shall not be deemed to be a consent to any
subsequent transfer. "Transfer" shall include any sublease, assignment, license
or concession agreement, change in ownership or control of Tenant, mortgage or
hypothecation of this lease or Tenant's interest therein or in all or a portion
of the Premises.
(B) OFFER TO LANDLORD. Tenant acknowledges that the terms of this lease,
including the Minimum Annual Rent, have been based on the understanding that
Tenant physically shall occupy the Premises for the entire Term. Therefore, upon
Tenant's request to transfer all or a portion of the Premises, at the option of
Landlord, Tenant and Landlord shall execute an amendment to this lease removing
such space from the Premises, Tenant shall be relieved of any liability with
respect to such space and Landlord shall have the right to lease such space to
any party, including Tenant's proposed transferee.
(C) CONDITIONS. Notwithstanding the above, the following shall apply to any
transfer, with or without Landlord's consent:
(i) As of the date of any transfer, Tenant shall not be in default
under this lease nor shall any act or omission have occurred which would
constitute a default with the giving of notice and/or the passage of time.
(ii) No transfer shall relieve Tenant of its obligation to pay the
Rent and to perform all its other obligations hereunder. The acceptance of Rent
by Landlord from any person shall not be deemed to be a waiver by Landlord of
any provision of this lease or to be a consent to any transfer.
(iii) Each transfer shall be by a written instrument in form and
substance satisfactory to Landlord which shall (A) include an assumption of
liability by any transferee of all Tenant's obligations and the transferee's
ratification of and agreement to be bound by all the provisions of this lease,
(B) afford Landlord the right of direct action against the transferee pursuant
to the same remedies as are available to Landlord against Tenant and (C) be
executed by Tenant and the transferee.
(iv) Tenant shall pay, within 10 days of receipt of as invoice which
shall be no less than $250, Landlord's reasonable attorneys' fees and costs in
connection with the review, processing and documentation of any transfer for
which Landlord's consent is requested.
19. SUBORDINATION; MORTGAGEE'S RIGHTS.
(A) This lease shall be subordinate to any first mortgage or other primary
encumbrance now or hereafter affecting the Premises. Although the subordination
is self-operative, within 10 days after written request, Tenant shall execute
and deliver any further instruments confirming such subordination of this lease
and any further instruments of attornment that may be desired by any such
mortgagee or Landlord. However, any mortgagee may at any time subordinate its
mortgage to this lease, without Tenant's consent,
7
by giving written notice to Tenant, and thereupon this lease shall be deemed
prior to such mortgage without regard to their respective dates of execution and
delivery; provided, however, that such subordination shall not affect any
mortgagee's right to condemnation awards, casualty issuance proceeds,
intervening liens or any right which shall arise between the recording of such
mortgage and the execution of this lease.
(B) It is understood and agreed that any mortgagee shall not be liable to
Tenant for any funds paid by Tenant to Landlord unless such funds actually have
been transferred to such mortgagee by Landlord.
(C) Notwithstanding the provisions of Sections 12 and 13 above, Landlord's
obligation to restore the Premises after a casualty or condemnation shall be
subject to the consent and prior rights of Landlord's first mortgagee.
20. RECORDING; TENANT'S CERTIFICATE. Tenant shall not record this lease or a
memorandum thereof without Landlord's prior written consent. Within 10 days
after Landlord's written request from time to time:
(A) Tenant shall execute, acknowledge and deliver to Landlord a written
statement certifying the Commencement Date and Expiration Date of this lease,
that this lease is in full force and effect and has not been modified and
otherwise as set forth in the form of estoppel certificate attached as Exhibit
"E" or with such modifications as may be necessary to reflect accurately the
stated facts and/or such other certifications as may be requested by a mortgagee
or purchaser. Tenant understands that its failure to execute such documents may
cause Landlord serious financial damage by causing the failure of a financing or
sale transaction.
(B) Tenant shall furnish to Landlord, Landlord's mortgagee, prospective
mortgagee or purchaser reasonably requested financial information.
21. SURRENDER; ABANDONED PROPERTY.
(A) Subject to the terms of Sections 9(b), 12(a) and 13(b), at the
expiration or termination of this lease, Tenant promptly shall yield up in the
same condition, order and repair in which they are required to be kept
throughout the Term, the Premises and all improvements thereto, and all fixtures
and equipment servicing the Building, ordinary wear and tear excepted.
(B) Upon or prior to the expiration or termination of this lease, Tenant
shall remove any personal property from the Property. Any personal property
remaining thereafter shall be deemed conclusively to have been abandoned, and
Landlord, at Tenant's expense, may remove, store, sell or otherwise dispose of
such property in such manner as Landlord may see fit and/or Landlord may retain
such property as its property. If any part thereof shall be sold, then Landlord
may receive and retain the proceeds of such sale and apply the same, at its
option, against the expenses of the sale, the cost of moving and storage and any
Rent due under this lease.
(C) If Tenant, or any person claiming through Tenant, shall continue to
occupy the Premises after the expiration or termination of this lease or any
renewal thereof, such occupancy shall be deemed to be under a month-to-month
tenancy under the same terms and conditions set forth in this lease, except that
the monthly installment of the Minimum Annual Rent during such continued
occupancy shall be double the amount applicable to the last month of the Term.
Anything to the contrary notwithstanding, any holding over by Tenant without
Landlord's prior written consent shall constitute a default hereunder and shall
be subject to all the remedies available to Landlord.
22. CURING TENANT'S DEFAULTS. If Tenant shall be in default in the performance
of any of its obligations hereunder, Landlord, without any obligation to do so,
in addition to any other rights it may have in law or equity may elect to cure
such default on behalf of Tenant after written notice (except in the case of
emergency) to Tenant. Tenant shall reimburse Landlord upon demand for any sums
paid or costs incurred by Landlord in curing such default, including interest
thereon from the respective dates of Landlord's incurring such costs, which sums
and costs together with interest shall be deemed additional rent.
23. DEFAULTS - REMEDIES.
(A) DEFAULTS. It shall be an event of default.
(i) If Tenant does not pay in full when due any and all Rent;
(ii) If Tenant fails to observe and perform or otherwise breaches any
other provision of this lease;
8
(iii) If Tenant abandons the Premises, which shall be conclusively
presumed if the Premises remain unoccupied for more than 10 consecutive days, or
removes or attempts to remove Tenant's goods or property other than in the
ordinary course of business; or
(iv) If Tenant becomes insolvent or bankrupt in any sense or makes a
general assignment for the benefit of creditors or offers a settlement to
creditors, or if a petition in bankruptcy or for reorganization or for an
arrangement with creditors under any federal or state law is filed by or against
Tenant, or a xxxx in equity or other proceeding for the appointment of a
receiver for any of Tenant's assets is commenced, or if any of the real or
personal property of Tenant shall be levied upon; provided, however, that any
proceeding brought by anyone other than Landlord or Tenant under any bankruptcy,
insolvency, receivership or similar law shall not constitute a default until
such proceeding has continued unstayed for more than 60 consecutive days.
(B) REMEDIES. Then, and in any such event. Landlord shall have the
following rights:
(i) To charge a late payment fee equal to the greater of $100 or 5% of
any amount owed to Landlord pursuant to this lease which is not paid within 5
days after the due date.
(ii) To enter and repossess the Premises, by breaking open locked
doors if necessary, and remove all persons and all or any property therefrom, by
action at law or otherwise, without being liable for prosecution or damages
therefor, and Landlord may, at Landlord's option, make alterations and repairs
in order to relet the Premises and relet all or any part(s) of the Premises for
Tenant's account. Tenant agrees to pay to Landlord on demand any deficiency that
may arise by reason of such reletting. In the event of reletting without
termination of this lease, Landlord may at any time thereafter elect to
terminate this lease for such previous breach.
(iii) To accelerate the whole or any part of the Rent for the balance
of the Term, and declare the same to be immediately due and payable.
(iv) To terminate this lease and the Term without any right on the
part of Tenant to save the forfeiture by payment of any sum due or by other
performance of any condition, term or covenant broken.
(C) GRACE PERIOD. Notwithstanding anything hereinabove stated, neither
party will exercise any available right because of any default of the other,
except those remedies contained in subsection (b)(i) of this Section, unless
such party shall have first given 10 days written notice thereof to the
defaulting party, and the defaulting party shall have failed to cure the default
within such period; provided, however, that:
(i) No such notice shall be required if Tenant fails to comply with
the provisions of Sections 10 or 20(a), in the case of emergency as set forth,
in Section 22 or in the event of any default enumerated in subsections (a)(iii)
and (iv) of this Section.
(ii) Landlord shall not be required to give such 10 days notice more
than 2 times during any 12 month period.
(iii) If the default consists of something other than the failure to
pay money which cannot reasonably be cured within 10 days, neither party will
exercise any right if the defaulting party begins to cure the default within the
10 days and continues actively and diligently in good faith to completely cure
said default.
(iv) Tenant agrees that any notice given by Landlord pursuant to this
Section which is served in compliance with Section 27 shall be adequate notice
for the purpose of Landlord's exercise of any available remedies.
(D) NON-WAIVER; NON-EXCLUSIVE. No waiver by Landlord of any breach by
Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by
Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of
any rights and remedies with respect to such or any subsequent breach. Efforts
by Landlord to mitigate the damages caused by Tenant's default shall not
constitute a waiver of Landlord's right to recover damages hereunder. No right
or remedy herein conferred upon or reserved to Landlord is intended to be
exclusive of any other right or remedy provided herein or by law, but each shall
be cumulative and in addition to every other right or remedy given herein or now
or hereafter existing at law or in equity. No payment by Tenant or receipt or
acceptance by Landlord of a lesser amount than the total amount due Landlord
under this lease shall be deemed to be other than on account, nor shall any
endorsement or statement on any check or payment be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of Rent due, or Landlord's right to
pursue any other available remedy.
9
(E) COSTS AND ATTORNEYS' FEES. If either party commences an action against
the other party arising out of or in connection with this lease, the prevailing
party shall be entitled to have and recover from the losing party attorneys'
fees, costs of suit, investigation expenses and discovery costs, including costs
of appeal.
24. REPRESENTATIONS OF TENANT. Tenant represents to Landlord and agrees that:
(A) The word "TENANT" as used herein includes the Tenant named above as
well as its successors and assigns, each of which shall be under the same
obligations and liabilities and each of which shall have the same rights,
privileges and powers as it would have possessed had it originally signed this
lease as Tenant. Each and every of the persons named above as Tenant shall be
bound jointly and severally by the terms, covenants and agreements contained
herein. However, no such rights, privileges or powers shall inure to the benefit
of any assignee of Tenant immediate or remote, unless Tenant has complied with
the terms of Section 18 and the assignment to such assignee is permitted or has
been approved in writing by Landlord. Any notice required or permitted by the
terms of this lease may be given by or to any one of the persons named above as
Tenant, and shall have the same force and affect as if given by or to all
thereof.
(B) If Tenant is a corporation, partnership or any other form of business
association or entity, Tenant is duly formed and in good standing, and has full
corporate or partnership power and authority, as the case may be, to enter into
this lease and has taken all corporate or partnership action, as the case may
be, necessary to carry out the transaction contemplated herein, so that when
executed, this lease constitutes a valid and binding obligation enforceable in
accordance with its terms. Tenant shall provide Landlord with corporate
resolutions or other proof in a form acceptable to Landlord, authorizing the
execution of this lease at the time of such execution.
25. LIABILITY OF LANDLORD. The word "LANDLORD" as used herein includes the
Landlord named above as well as its successors and assigns, each of which shall
have the same rights, remedies, powers, authorities and privileges as it would
have had it originally signed this lease as Landlord. Any such person or entity,
whether or not named herein, shall have no liability hereunder after it ceases
to hold title to the Premises except for obligations already accrued (and, as to
any unapplied portion of Tenant's Security Deposit, Landlord shall be relieved
of all liability therefor upon transfer of such portion to its successor in
interest) and Tenant shall look solely to Landlord's successor in interest for
the performance of the covenants and obligations of the Landlord hereunder which
thereafter shall accrue. Neither Landlord nor any principal of Landlord nor any
owner of the Property, whether disclosed or undisclosed, shall have any personal
liability with respect to any of the provisions of this lease or the Premises,
and if Landlord is in breach or default with respect to Landlord's obligations
under this lease or otherwise, Tenant shall look solely to the equity of
Landlord in the Property for the satisfaction of Tenant's claims.
Notwithstanding the foregoing, no mortgagee or ground lessor succeeding to the
interest of Landlord hereunder (either in terms of ownership or possessory
rights) shall be (a) liable for any previous act or omission of a prior
landlord, (b) subject to any rental offsets or defenses against a prior landlord
or (c) bound by any amendment of this lease made without its written consent, or
by payment by Tenant of Minimum Annual Rent in advance in excess of one monthly
installment.
26. INTERPRETATION; DEFINITIONS.
(A) CAPTIONS. The captions in this lease are for convenience only and are
not a part of this lease and do not in any way define, limit, describe or
amplify the terms and provisions of this lease or the scope or intent thereof.
(B) ENTIRE AGREEMENT. This lease represents the entire agreement between
the parties hereto and there are no collateral or oral agreements or
understandings between Landlord and Tenant with respect to the Premises or the
Property. No rights, easements or licenses are acquired in the Property or any
land adjacent to the Property by Tenant by implication or otherwise except as
expressly set forth in the provisions of this lease. This lease shall not be
modified in any manner except by an instrument in writing executed by the
parties. The masculine (or neuter) pronoun and the singular number shall include
the masculine, feminine and neuter genders and the singular and plural number.
The word "INCLUDING" followed by any specific item(s) is deemed to refer to
examples rather than to be words of limitation. Both parties having participated
fully and equally in the negotiation and preparation of this lease, this lease
shall not be more strictly construed, nor any ambiguities in this lease
resolved, against either Landlord or Tenant.
(C) COVENANTS. Each covenant, agreement, obligation, term, condition or
other provision herein contained shall be deemed and construed as a separate and
independent covenant of the party bound by, undertaking or making the same, not
dependent on any other provision of this lease unless otherwise expressly
provided. All of the terms and conditions set forth in this lease shall apply
throughout the Term unless otherwise expressly set forth herein.
(D) INTEREST. Wherever interest is required to be paid hereunder, such
interest shall be at the highest rate permitted under law but not in excess of
15% per annum.
10
(E) SEVERABIIITY; GOVERNING LAW. If any provisions of this lease shall be
declared unenforceable in any respect, such unenforceability shall not affect
any other provision of this lease, and each such provision shall be deemed to be
modified, if possible, in such a manner as to render it enforceable and to
preserve to the extent possible the intent of the parties as set forth herein.
This lease shall be construed and enforced in accordance with the laws of the
state in which the Property is located.
(F) "MORTGAGE" AND "MORTGAGEE." The word "MORTGAGE" as used herein includes
any lien or encumbrance on the Premises or the Property or on any part of or
interest in or appurtenance to any of the foregoing, including without
limitation any ground rent or ground lease if Landlord's interest is or becomes
a leasehold estate. The word "MORTGAGEE" as used herein includes the holder of
any mortgage, including any ground lessor if Landlord's interest is or becomes a
leasehold estate. Wherever any right is given to a mortgagee, that right may be
exercised on behalf of such mortgagee by any representative or servicing agent
of such mortgagee.
(G) "PERSON." The word "person" is used herein to include a natural person,
a partnership, a corporation, an association and any other form of business
association or entity.
27. NOTICES. Any notice or other communication under this lease shall be in
writing and addressed to Landlord or Tenant at their respective addresses
specified at the beginning of this lease, except that after the Commencement
Date Tenant's address shall be at the Premises, (or to such other address as
either may designate by notice to the other) with a copy to any mortgagee or
other party designated by Landlord. Each notice or other communication shall be
deemed given if sent by prepaid overnight delivery service or by certified mail,
return receipt requested, postage prepaid or in any other manner, with delivery
in any case evidenced by a receipt, and shall be deemed received on the day of
actual receipt by the intended recipient or on the business day delivery is
refused. The giving of notice by Landlords attorneys, representatives and agents
under this Section shall be deemed to be the acts of Landlord; however, the
foregoing provisions governing the date on which a notice is deemed to have been
received shall mean and refer to the date on which a party to this lease, and
not its counsel or other recipient to which a copy of the notice may be sent, is
deemed to have received the notice.
28. SECURITY DEPOSIT: At the time of signing this lease, Tenant shall deposit
with Landlord the Security Deposit to be retained by Landlord as cash security
for the faithful performance and observance by Tenant of the provisions of this
lease. Tenant shall not be entitled to any interest whatever on the Security
Deposit. Landlord shall have the right to commingle the Security Deposit with
its other funds. Landlord may use the whole or any part of the Security Deposit
for the payment of any amount as to which Tenant is in default hereunder or to
compensate Landlord for any loss or damage it may suffer by reason of Tenant's
default under this lease. If Landlord uses all or any portion of the Security
Deposit as herein provided, within 10 days after written demand therefor, Tenant
shall pay Landlord cash in amount equal to that portion of the Security Deposit
used by Landlord. If Tenant shall comply fully and faithfully with all of the
provisions of this lease, the Security Deposit shall be returned to Tenant after
the Expiration Date and surrender of the Premises to Landlord.
IN WITNESS WHEREOF, and in consideration of the mutual entry into this
lease and for other good and valuable consideration, and intending to be legally
bound, Landlord and Tenant have executed this lease.
Date signed: LANDLORD:
2/14/02
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: Liberty Property Trust Sole General
Partner
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Title: Senior Vice President, Regional
Director
Date signed: TENANT:
January 31, 2002
SYNCHRONOSS TECHNOLOGIES, INC.
Attest: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------- ------------------------------------
Name: Xxxxx X. Xxxxxxx Name: Xxxxxxxx X. Xxxxxx
Title: Executive Assistant Title: CFO
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29. PENNSYLVANIA ADDITIONAL REMEDIES
a. When this Lease and the Term or any extension thereof shall have
been terminated on account of any default by Tenant, or when the Term or any
extension thereof shall have expired, Tenant hereby authorizes any attorney of
any court of record of the Commonwealth of Pennsylvania to appear for Tenant and
for anyone claiming by, through, or under Tenant and to confess judgment against
all such parties, and in favor of Landlord, in ejectment and for the recovery of
possession of the Premises, for which this Lease or a true and correct copy
hereof shall be good and sufficient warrant. AFTER THE ENTRY OF ANY SUCH
JUDGMENT, A WRIT OF POSSESSION MAY BE ISSUED THEREON WITHOUT FURTHER NOTICE TO
TENANT AND WITHOUT A HEARING. If for any reason after such action shall have
been commenced, it shall be determined and possession of the Premises remain in
or be restored to Tenant, Landlord shall have the right for the same default and
upon any subsequent defaults) or upon the termination of this Lease or Tenant's
right of possession as herein set forth, to again confess judgment as herein
provided, for which this Lease or a true and correct copy hereof shall be good
and sufficient warrant.
b. If Tenant shall default in the payment of the Rent due hereunder,
Tenant hereby authorizes any attorney of any court of record of the Commonwealth
of Pennsylvania to appear for Tenant and to confess judgment against Tenant, and
in favor of Landlord, for all sums due hereunder plus interest, costs, and an
attorney's collection commission equal to the greater of ten percent (10%) of
all such sums or $1,000.00, for which this Lease or a true and correct copy
hereof shall be good and sufficient warrant. TENANT UNDERSTANDS THAT THE
FOREGOING PERMITS LANDLORD TO ENTER A JUDGMENT AGAINST TENANT WITHOUT PRIOR
NOTICE OR HEARING. ONCE SUCH A JUDGMENT HAS BEEN ENTERED AGAINST TENANT, ONE OR
MORE WRITS OF EXECUTION OR WRITS OF GARNISHMENT MAY BE ISSUED THEREON WITHOUT
FURTHER NOTICE TO TENANT AND WITHOUT A HEARING, AND, PURSUANT TO SUCH WRITS,
LANDLORD MAY CAUSE THE SHERIFF OF THE COUNTY IN WHICH ANY PROPERTY OF TENANT IS
LOCATED TO SEIZE TENANT'S PROPERTY BY LEVY OR ATTACHMENT. IF THE JUDGMENT
AGAINST TENANT REMAINS UNPAID AFTER SUCH LEVY OR ATTACHMENT, LANDLORD CAN CAUSE
SUCH PROPERTY TO BE SOLD BY THE SHERIFF EXECUTING THE WRITS, OR, IF SUCH
PROPERTY CONSISTS OF A DEBT OWED TO TENANT BY ANOTHER ENTITY, LANDLORD CAN CAUSE
SUCH DEBT TO BE PAID DIRECTLY TO LANDLORD IN AN AMOUNT UP TO BUT NOT TO EXCEED
THE AMOUNT OF THE JUDGMENT OBTAINED BY LANDLORD AGAINST TENANT, PLUS THE COSTS
OF THE EXECUTION. Such authority shall not be exhausted by one exercise thereof,
but judgment may be confessed as aforesaid from time-to-time as often as any of
said rental and other sums shall fall due or be in arrears, and such powers may
be exercised as well after the expiration of the initial Term of this Lease and
during any extended or renewal Term of this Lease and after the expiration of
any extended or renewal Term of this Lease.
c. The warrants of attorney to confess judgment set forth above shall
continue in full force and effect and be unaffected by amendments of this Lease
or other agreements between Landlord and Tenant even if any such amendments or
other agreements increase Tenant's obligations or expand the size of the
Premises. Tenant waives any procedural errors in connection with the entry of
any such judgment or in the issuance of any one or more writs of possession or
execution or garnishment thereon.
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d. TENANT KNOWINGLY AND EXPRESSLY WAIVES (I) ANY RIGHT, INCLUDING,
WITHOUT LIMITATION, UNDER ANY APPLICABLE STATUTE, WHICH TENANT MAY HAVE TO
RECEIVE A NOTICE TO QUIT PRIOR TO LANDLORD COMMENCING AN ACTION FOR REPOSSESSION
OF THE PREMISES AND (II) ANY RIGHT WHICH TENANT MAY HAVE TO NOTICE AND TO
HEARING PRIOR TO A LEVY UPON OR ATTACHMENT OF TENANT'S PROPERTY OR THEREAFTER.
SYNCHRONOSS TECHNOLOGIES, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: CFO
30. CONDITION OF PREMISES
Tenant understands and agrees that it is leasing the Premises from Landlord
in its "AS-IS" condition, and that Landlord is required to perform no work with
regard to the Premises. Tenant acknowledges that it is well aware of the
condition of the Premises, in that is has occupied portions of the Premises for
many months pursuant to an arrangement between Tenant and the prior tenant of
the Premises.
31. ADDITIONAL PROVISIONS RELATING TO MINIMUM ANNUAL RENT AND DEFINITION OF
"LEASE YEAR"
a. Notwithstanding any provision of this Lease to the contrary, the
time period commencing on February 1, 2002, and ending on August 31, 2002, shall
be deemed the first lease year. Each subsequent period of twelve (12) full
calendar months, thereafter, shall constitute each subsequent lease year.
b. Tenant's Minimum Annual Rent obligation during the Term shall be as
set forth in the following schedule:
MINIMUM ANNUAL MONTHLY
RENT PER RENTABLE MINIMUM INSTALLMENT
SQUARE FOOT PER ANNUAL OF MINIMUM
TIME PERIOD YEAR RENT ANNUAL RENT
----------- ----------------- ----------- -----------
First Lease Year $13.80 $303,600.00 $25,300.00
Second Lease Year $14.20 $312,400.00 $26,033.33
Third Lease Year $14.60 $321,200.00 $26,766.67
Fourth Lease Year $15.50 $341,000.00 $28,416.67
Fifth Lease Year $16.00 $352,000.00 $29,333.33
Sixth Lease Year $16.50 $363,000.00 $30,250.00
Seventh Lease Year $17.00 $374,000.00 $31,166.67
Eighth Lease Year $17.50 $385,000.00 $32,083.33
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32. OPTION TO EXTEND TERM
Provided that Landlord has not given tenant notice of default more than two
(2) times preceding the Expiration Date, that there then exists no event of
default by tenant under this lease or any event that with the giving of notice
and/or the passage of time would constitute a default, and that Tenant is the
sole occupant of the Premises, Tenant shall have the right and option to extend
the Term for one (1) additional period of sixty (60) months, exercisable by
giving Landlord prior written notice, at least nine (9) months in advance of the
Expiration Date, of Tenant's election to extend the Term; it being agreed that
time is of the essence and that this option is personal to Tenant and is
non-transferable to any assignee or sublessee (regardless of whether any such
assignment or sublease was made with or without Landlord's consent) or other
party. Such extension shall be under the same terms and conditions as provided
in this Lease except as follows:
a. The additional period shall begin on the Expiration Date and
thereafter the Expiration Date shall be deemed to be the fifth anniversary of
the previous Expiration Date;
b. There shall be no further options to extend; and
c. Tenant's Minimum Annual rent obligation on account of the first
twelve (12) months of the additional period (the "First Extension Year") shall
be the greater of Tenant's Minimum Annual Rent obligation on account of the last
twelve (12) months of the initial Term (the "Previous Rent") or the fair market
rent as determined in accordance with the provisions of this subsection. Within
thirty (30) days after Landlord receives notice of Tenant's exercise of its
option to extend the Term, but in no event prior to nine (9) months prior to the
Expiration Date, Landlord will give notice to Tenant stating either that the
Minimum Annual Rent for the First Extension Year shall be the Previous Rent or
stating Landlord's good faith determination of the fair market rent then
applicable to the Premises (the "Rent Notice"). If the Rent Notice states that
the Previous Rent shall apply, the Previous Rent shall be the Minimum Annual
Rent for the First Extension year. If the Rent Notice states a fair market rent
and, if, within twenty (20) days after receiving the Rent Notice, Tenant gives
notice to landlord that Tenant accepts the rent as set forth in the Rent Notice
or Tenant fails to notify Landlord of an objection to such rent, the Minimum
Annual Rent as stated in the Rent Notice shall be Tenant's Minimum Annual rent
obligation applicable to the First Extension year. If, within the aforesaid
twenty (20) day period Tenant gives notice to Landlord ("Tenant's Reply") of
Tenant's objection to the rent as stated in the Rent Notice, stating in such
notice of objection Tenant's opinion of the fair market rent applicable to the
Premises, Landlord and Tenant will both act reasonably and in good faith to
arrive at a mutually acceptable fair market rent. If, on or before thirty (30)
days after Landlord's receipt of Tenant's reply, Landlord and Tenant have not
come to an agreement as to fair market rent, Tenant's exercise of this option to
extend the Term shall be deemed null and void, and Tenant shall have no further
options to extend the Term. If Landlord and tenant, within such thirty (30) day
period, agree to a fair market rent, such agreement shall be confirmed in a
letter agreement which shall constitute an amendment to this Lease. For the
second and each subsequent twelve (12) month period of the additional period,
tenant's Minimum Annual rent obligation shall increase by three percent (3%) of
Tenant's Minimum Annual Rent obligation applicable to the immediately preceding
twelve (12) month period - i.e., Tenant's Minimum Annual Rent obligation for the
second year of the additional period shall be one hundred three percent (103%)
of Tenant's Minimum, Annual Rent obligation for the First Extension Year;
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Tenant's Minimum Annual Rent obligation for the third year of the additional
period shall be one hundred three percent (103%) of Tenant's Minimum Annual rent
obligation for the second year of the additional period; and so on throughout
the additional period.
33. ADDITIONAL PROVISIONS RELATING TO PREMISES
a. Landlord agrees that one hundred fifty (150) paved parking spaces
will be available for the use of Tenant's employees and guests on the Property.
Landlord shall have no obligation to designate specific parking spaces, to xxxx
specific parking spaces, or to police the use of parking spaces.
b. Tenant shall be permitted to install a fuel operated back-up
generator on the Property outside of the Premises, in accordance with the
following terms, conditions, and limitations:
i. The generator shall be installed on a concrete pad to be
constructed by Tenant in the vicinity of the trash dumpster enclosure, with the
precise location to be approved by Landlord.
ii. The generator and the appurtenant equipment shall be enclosed
and screened from view in accordance with the standards of Lehigh Valley
Corporation Center.
iii. All conduits and cables connecting the generator with the
Building shall be run in areas that are planted, shall not cross areas of
paving or curbs, and shall be subject to Landlord's approval.
iv. All work shall be performed at Tenant's sole expense
utilizing contractors approved by Landlord, in compliance with all applicable
Laws and Requirements. All planted areas disturbed by the installation or
removal of the generator and appurtenant facilities shall be restored to the
condition existing prior to disturbance by Landlord's landscaping contractor, at
Tenant's expense.
v. Tenant shall be obligated to comply with the Pennsylvania One
Call System before digging any holes or trenches on the Property.
vi. All penetrations of the Building made in connection with
conduits or cables connecting the generator to the Premises shall be made in
locations and utilizing methods approved by Landlord, and shall be properly
sealed.
vii. At the expiration or sooner termination of the Term, Tenant
shall have the right to remove the generator. If Tenant exercises such right,
Tenant shall also remove the equipment associated with the generator, but shall
leave in place the concrete pad, the conduits and cables, and the screening and
enclosure.
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34. ADDITIONAL PROVISIONS RELATING TO OPERATION OF PROPERTY; PAYMENT OF
EXPENSES
a. Notwithstanding the provisions of subsection 7(a) to the contrary,
it is agreed that Annual Operating Expenses will not include costs incurred in
Landlord performing construction for a specific tenant, marketing costs, or
leasing commissions.
b. The first sentence of subsection 7(e)(i) is hereby modified to read
in its entirety as follows:
Landlord will furnish the Premises with electricity, heating,
and air conditioning for the normal use and occupancy of the
Premises as general offices between 8:00 A.M. and 6:00 P.M.,
Monday through Friday (legal holidays excepted) and between 8:00
A.M. and 1:00 P.M. Saturday (legal holidays excepted) ("Normal
Hours").
c. Landlord agrees to provide Tenant with heating and air conditioning
to the Premises outside of Normal Hours, provided that Tenant requests such
additional hours of operation at least one (1) business day in advance. During
the first five (5) lease years of the Term, Landlord agrees that the charges for
additional hours of HVAC operation will be as follows:
i. $35.00 per hour if the additional HVAC requirement is
scheduled to be supplied for an uninterrupted period of one (1) week or longer;
and
ii. $45.00 per hour if the additional HVAC requirement is
scheduled for a time period of less than one (1) full uninterrupted week.
d. Notwithstanding the provisions of subsection 7(e)(ii) to the
contrary, Landlord has installed an electric submeter for the Premises at
Landlord's sole expense prior to the Commencement Date. Tenant shall be
obligated to pay to Landlord the cost of all electricity supplied to the
Premises as measured by such meter, as well as Tenant's Proportionate Share of
all utilities supplied to the Common Areas.
35. ADDITIONAL PROVISIONS RELATING TO SIGNS
There is an existing monument sign located on the Property. Tenant, at
Tenant's expense may install its name and logo on such sign, provided that
Tenant restricts the uses of such sign to one (1) line thereof, and further
provided that anything placed on such sign by Tenant must comply with the
standards of Lehigh Valley Corporation Center.
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36. ADDITIONAL PROVISIONS RELATING TO LANDLORD'S RIGHT TO RELOCATE TENANT;
RIGHT OF ENTRY
a. Subsection 11(a) is hereby deleted in its entirety.
b. In subsection 1l(b) in the third line thereof, the time period of
"12 months" is hereby changed to "9 months."
37. ADDITIONAL PROVISIONS RELATING TO ASSIGNMENT AND SUBLETTING
In the event that Tenant submits to Landlord for its consent a proposed
assignment or subletting transaction, together with all information reasonably
necessary for Landlord to grant or withhold its consent, but Landlord does not
respond to Tenant within thirty (30) days of such completed submission, the
proposed assignment or subletting transaction shall be deemed approved by
Landlord as required by subsection 18(a). Notwithstanding such approval,
subsections 18(b) and 18(c) shall apply to any such assignment or subletting
transaction, as applicable.
38. ADDITIONAL PROVISIONS RELATING TO SUBORDINATION
Landlord represents to Tenant that the Property is not presently covered by
the lien of a mortgage. In the event that Landlord encumbers the Property with
the lien of a mortgage, Landlord will request and will use reasonable efforts to
obtain form the mortgagee an agreement that such mortgagee will not disturb
Tenant's possession under this Lease as long as Tenant is not in default of any
of its obligations hereunder. Such agreement may be in the form of such
mortgagee's standard Subordination, Nondisturbance and Attornment Agreement.
39. ADDITIONAL PROVISIONS RELATING TO SURRENDER
In subsection 21(c), in the fourth line thereof, the word "double" is
hereby replaced with the phrase "one and one-half (l 1/2) times."
40. ADDITIONAL PROVISIONS RELATING TO DEFAULTS - REMEDIES
a. The following phrase is hereby inserted at the beginning of
subsection 23(b)(ii): "Utilizing lawful process,..."
b. If Landlord accelerates Tenant's obligations under this Lease
pursuant to the provisions of subsection 23(b)(iii), payment from Tenant to
Landlord of the accelerated obligations which would not have been due at the
time of payment, but for Tenant's default and the resulting acceleration, shall
be discounted to present value as of the date of such payment using the prime
rate of interest as published in The Wall Street Journal (or any successor
publication thereto) on the day before the date that payment is made, or, if
The Xxxx Xxxxxx
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Journal (or any successor publication thereto) continues to be regularly
published but is not published on the last mentioned date, using the prime rate
of interest as published in the immediately preceding edition of The Wall Street
Journal (or any successor publication thereto). If, at the relevant time,
neither The Wall Street Journal nor any successor publication thereto continues
to be regularly published, Landlord may substitute the prime rate of interest as
published in a similar nationally recognized financial publication. Payments by
Tenant shall first be applied to Landlord's costs; next to late charges; next to
interest accrued; next to Tenant's obligations that would have been due from
Tenant as of the date of payment had acceleration not occurred; and last to
Tenant's obligations which would not have been due at the date of payment, but
for the acceleration.
41. ADDITIONAL PROVISIONS RELATING TO SECURITY DEPOSIT
Provided that Landlord has not given Tenant notice of default more than two
(2) times preceding such date, and that there then exists no event of default by
Tenant under this Lease nor any event that with the giving of notice and/or the
passage of time would constitute a default, on or before thirty (30) days after
Tenant gives notice to Landlord that Tenant has realized positive net income for
the three (3) immediately preceding consecutive fiscal quarters, Landlord will
reduce the amount of the required security deposit to $32,083.33, and will
return to Tenant all portions of the security deposit then held by Landlord in
excess of such amount. In order to be effective, such notice form Tenant to
Landlord must include the following:
a. A statement by Tenant's chief financial officer certifying that
Tenant has realized positive net income for the most recent three (3)
consecutive fiscal quarters of Tenant.
b. Financial reports which provide reasonable backup for and
explanation of such statement.
c. A request for the reduction of the security deposit and for the
refund of the excess security deposit being held by Landlord.
42. ADDITIONAL PROVISIONS RELATING TO BUILDING RULES
Notwithstanding the provisions of Building Rule No. 7 to the contrary, it
is agreed that Tenant may change locks or place additional locks on doors,
provided Tenant complies with the following terms and conditions:
a. At all times, Landlord must have the ability to access all portions
of the Premises. Therefore, Tenant shall immediately furnish to Landlord such
keys, combinations, codes, or other means of access that may be necessary for
Landlord to have access to all portions of the Premises.
b. In installing or changing any locks or similar security devices,
Tenant shall not make any alterations to any doors, door jambs, door frames, or
other components of the Premises without Landlord's prior written approval.
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43. TENANT'S SPECIAL RIGHT OF EARLY TERMINATION
Provided that there then exists no event of default by Tenant under this
Lease nor any event that with the giving of notice and/or the passage of time
would constitute a default, if Tenant gives a notice to Landlord (a "Termination
Notice") on or before August 31, 2006, the Term of this Lease shall end
effective at 11:59 P.M., local time, on August 31, 2007; and, in such event, the
last mentioned date shall become the "Expiration Date" of the Term. In order for
the Termination Notice to be effective, it must comply with the following
conditions and requirements:
a. It must be given by the required date, time being of the essence;
and
b. It must be accompanied by the payment of a lease termination fee to
Landlord in the amount of $62,333.34, which is intended by the parties to be a
liquidated sum which is fair and reasonable as partial compensation to Landlord
for the loss of rental income for the balance of the Term as a result of such
permissible early termination.
44. ADDITIONAL SPACE
If and when any of the spaces located in the Building which are not part of
the Premises (each of which shall be an "Additional Space") first becomes
available for rental during the term of this lease and provided that Landlord
has not given Tenant notice of default more than two (2) times during the
immediately preceding twelve (12) months, that there then exists no event of
default by Tenant under this lease nor any event that with the giving of notice
and/or the passage of time would constitute a default, and that Tenant is the
sole occupant of the Premises, Tenant shall have the right of first offer to
lease all of the Additional Space, subject to the following:
a. Landlord shall notify Tenant when the Additional Space first
becomes available for rental by any party other than the tenant then in
occupancy of the Additional Space and Tenant shall have seven (7) days following
receipt of such notice within which to notify Landlord in writing that Tenant is
interested in negotiating terms for leasing such Additional Space and to have
its offer considered by Landlord prior to the leasing by Landlord of the
Additional Space to a third party. If Tenant notifies Landlord within such time
period that Tenant is so interested, then Landlord and Tenant shall have 30 days
following Landlord's receipt of such notice from Tenant within which to
negotiate mutually satisfactory terms for the leasing of the Additional Space by
Tenant and to execute an amendment to this lease incorporating such terms.
b. If Tenant does not notify Landlord within such seven (7) days of
its interest in leasing the Additional Space or if Tenant does not execute such
amendment or lease within such 30 days, if applicable, then this right of first
offer to lease the Additional Space will lapse and be of no further force or
effect, and Landlord shall have the right to lease all or part of the Additional
Space to any other party at any time on any terms and conditions acceptable to
Landlord.
c. This right of first offer to lease the Additional Space is a
one-time right if and when each Additional Space first becomes available, is
personal to Tenant and is non-transferable to any assignee or sublessee
(regardless of whether any such assignment or sublease was made with or without
Landlord's consent) or other party.
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d. This right of first offer on behalf of Tenant shall be not be
exercisable by Tenant if Tenant has exercised its special right of early
termination pursuant to Section 43 above. Furthermore, unless Tenant has first
waived its right of early termination pursuant to Section 43 above, in a written
notice to Landlord, Tenant shall have no right to receive notice that an
Additional Space will be coming available or to lease such Additional Space
after August 31, 2004.
e. Tenant's rights under this Section shall be subject subordinate to
any rights previously given to another tenant of the Building with regard to the
leasing of additional areas of the Building. Furthermore, Landlord shall have
the right to enter into an agreement with any tenant of space in the Building to
extend such tenant's term of occupancy, whether or not such tenant has the
right and option to extend the term of its lease, and, any such agreement
between Landlord and a tenant of the Building shall not be considered a
violation of Tenant's rights under this Section.
LANDLORD'S APPROVAL: /s/ Xxxxxx X. Xxxx
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SENIOR VICE PRESIDENT, REGIONAL DIRECTOR
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EXHIBIT "B"
LEASE COMMENCEMENT CERTIFICATE
The undersigned, as duly authorized officers and/or representatives of
LIBERTY PROPERTY LIMITED PARTNERSHIP ("Landlord") and ________________________
("Tenant"), hereby agree as follows with respect to the Lease Agreement (the
"Lease") between them for premises located at _________________________
__________________________ (the "Premises"):
1. DATE OF LEASE: ________________, 20___
2. COMMENCEMENT DATE: ________________, 20___
3. EXPIRATION DATE: ________________, 20___
4. Rent and operating expanses due on or before the Commencement Date for
the period from the Commencement Date until the first day of the next
calendar month (Not applicable if the Commencement Date is the first
day of the calendar month):
APPORTIONED MINIMUM RENT: $_______________
APPORTIONED OPERATING EXPENSES: $_______________
TOTAL: $_______________
Thereafter regular monthly payments due in the following amounts until
adjusted in accordance with the Lease:
MONTHLY RENT INSTALLMENT: $_______________
MONTHLY OPERATING PAYMENT: $_______________
TOTAL MONTHLY PAYMENT: $_______________
5. Tenant certifies that, as of the date hereof, (a) the Lease is in full
force and effect and has not been amended, (b) Tenant has no offsets
or defenses against any provision of the Lease and (c) Landlord has
substantially completed any improvements to be performed by Landlord
in accordance with the Lease, excepting the Punch List items set forth
on the Schedule attached hereto and initialed by Landlord and Tenant,
if any.
IN WITNESS WHEREOF, Landlord and Tenant, intending to be legally bound,
have executed this Certificate as of _____________, 20___
LANDLORD:
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: Liberty Property Trust,
Sole General Partner
By:
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Name: Xxxxxx X. Xxxx
Title: Senior Vice President,
Regional Director
TENANT:
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Witness/Attest:
----------------------------
By:
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Name:
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Title:
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EXHIBIT "C"
BUILDING RULES
1. As stated in the lease, Tenant shall not use the Premises as a "place of
public accommodation" as defined in the Americans with Disabilities Act of 1990,
which identifies the following categories into one or more of which a business
must fail to be a "place of public accommodation":
a. Places of lodging (examples: hotel, motel)
b. Establishments serving food or drink (examples: bar, restaurant)
c. Places of exhibition or entertainment (examples: motion picture
house, theater, stadium, concert hall)
d. Places of public gathering (examples: auditorium, convention
center, lecture hall)
e. Sales or rental establishments (examples: bakery, grocery store,
hardware store, shopping center)
f. Service establishments (examples: bank, laundromat, xxxxxx shop,
funeral parlor, hospital, gas station, business offices such as
lawyer, accountant, healthcare provider or insurance office)
g. Stations used for specified public transportation (examples: bus
terminal, depot)
h. Places of public display or collection (examples: museum,
library, gallery)
i. Places of recreation (examples: park, zoo, amusement park)
j. Places of education (examples: nursery, elementary, secondary,
private or other undergraduate or postgraduate school)
k. Social service center establishments (examples: day-care center,
senior citizen center, homeless shelter, food bank, adoption
agency)
l. Places of exercise or recreation (examples: gym, health spa,
bowling alley, golf course)
2. Any sidewalks, lobbies, passages, elevators and stairways shall not be
obstructed or used by Tenant for any purpose other than ingress and egress from
and to the Premises. Landlord shall in all cases retain the right to control or
prevent access by all persons whose presence, in the judgment of Landlord, shall
be prejudicial to the safety, peace or character of the Property.
3. The toilet rooms, toilets, urinals, sinks, faucets, plumbing or other
service apparatus of any kind shall not be used for any purposes other than
those for which they were installed, and no sweepings, rubbish, rags, ashes,
chemicals or other refuse or injurious substances shall be placed therein or
used in connection therewith or left in any lobbies, passages, elevators or
stairways.
4. Tenant shall comply with all safely, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
No person shall go on the roof without Landlord's permission.
5. Skylights, windows, doors and transoms shall not be covered or
obstructed by Tenant, and Tenant shall not install any window covering which
would affect the exterior appearance of the Building, except as approved in
writing by Landlord. Tenant shall not remove, without Landlord's prior written
consent, any shades, blinds or curtains in the Premises.
6. Without Landlord's prior written consent, Tenant shall not hang,
install, mount, suspend or attach anything from or to any sprinkler, plumbing,
utility or other lines. If Tenant hangs, installs, mounts, suspends or attaches
anything from or to any doors, windows, walls, floors or ceilings, Tenant shall
sand and spackle all holes and repair any damage caused thereby or by the
removal thereof at or prior to the expiration or termination of the lease.
Without Landlord's prior written consent, no walls or partitions shall be
painted, papered or otherwise covered or moved in any way or marked or broken;
nor shall any connection be made to electric wires for running fans or motors or
other apparatus, devices or equipment; nor shall machinery of any kind other
than customary small business machines be allowed in the Premises; nor shall
Tenant use any other method of heating, air conditioning or air cooling than
that provided by Landlord; nor shall any mechanics be allowed to work in or
about the Building other than those employed by Landlord.
7. Tenant shall not change any locks nor place additional locks upon any
doors and shall surrender all keys and passes at the end of the Term.
8. Tenant shall not use nor keep in the Building any matter having an
offensive odor, nor explosive or highly flammable material, nor shall any
animals other than seeing eye dogs in the company of their masters be brought
into or kept in or about the Premises.
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9. If Tenant desires to introduce electrical, signaling, telegraphic,
telephonic, protective alarm or other wires, apparatus or devices, Landlord
shall direct where and how the same are to be placed, and except as so directed,
no installation boring or cutting shall be permitted. Landlord shall have the
right to prevent and to cut off the transmission of excessive or dangerous
current of electricity or annoyances into or through the Building or the
Premises and to require the changing of wiring connections or layout at Tenant's
expense, to the extent that Landlord may deem necessary, and further to require
compliance with such reasonable rules as Landlord may establish relating
thereto, and in the event of non-compliance with the requirements or rules.
Landlord shall have the right immediately to cut wiring or to do what it
considers necessary to remove the danger, annoyance or electrical interference
with apparatus in any part of the Building. All wires installed by Tenant must
be clearly tagged at the distributing boards and junction boxes and elsewhere
where required by Landlord, with the number of the office to which said wires
lead, and the purpose for which the wires respectively are used, together with
the name of the concern, if any, operating same.
10. Tenant shall not place weights anywhere beyond the safe carrying
capacity of the Building which is designed to normal office building standards
for floor loading capacity. Landlord shall have the right to exclude from the
Building heavy furniture, safes and other articles which may be hazardous or to
require them to be located at designated places in the Premises. Tenant shall
obtain Landlord's written consent prior to the installation of any vending
machines in the Premises.
11. The use of rooms as sleeping quarters is strictly prohibited at all
times.
12. Tenant shall have the right, at Tenant's sole risk and responsibility,
to use its proportional share of the parking spaces at the Property as
reasonably determined by Landlord. Tenant shall comply with all parking
regulations promulgated by Landlord from time to time for the orderly use of the
vehicle parking areas, including without limitation the following: Parking shall
be limited to automobiles, passenger or equivalent vans, motorcycles, light four
wheel pickup trucks and (in designated areas) bicycles. No vehicles shall be
left in the parking lot overnight. Parked vehicles shall not be used for vending
or any other business or other activity while parked in the parking areas.
Vehicles shall be parked only in striped parking spaces, except for loading and
unloading, which shall occur solely in zones marked for such purpose, and be so
conducted as to not unreasonably interfere with traffic flow within the Property
or with loading and unloading areas of other tenants. Employee and tenant
vehicles shall not be parked in spaces marked for visitor parking or other
specific use. All vehicles entering or parking in the parking areas shall do so
at owner's sole risk, and Landlord assumes no responsibility for any damage,
destruction, vandalism or theft. Tenant shall cooperate with Landlord in any
measures implemented by Landlord to control abuse of the parking areas,
including without limitation access control programs, tenant and guest vehicle
identification programs, and validated parking programs, provided that no such
validated parking program shall result in Tenant being charged for spaces to
which it has a right to free use under its lease. Each vehicle owner shall
promptly respond to any sounding vehicle alarm or horn, and failure to do so may
result in temporary or permanent exclusion of such vehicle from the parking
areas. Any vehicle which violates the parking regulations may be cited, towed at
the expense of the owner, temporarily or permanently excluded from the parking
areas, or subject to other lawful consequence.
13. Tenant shall not smoke in the Building which Landlord has designated as
a non-smoking building.
14. Canvassing, soliciting and distribution of handbills or any other
written material, and peddling in the Building are prohibited, and Tenant shall
cooperate to prevent same.
15. Tenant shall provide Landlord with a written identification of any
vendors engaged by Tenant to perform services for Tenant at the Premises
(examples: security guards/monitors, telecommunications installers/maintenance).
Tenant shall permit Landlord's employees and contractors and no one else to
clean the Premises unless Landlord consents in writing. Tenant assumes all
responsibility for protecting its Premises from theft and vandalism and Tenant
shall see each day before leaving the Premises that all lights are turned out
and that the windows and the doors are closed and securely locked.
16. Landlord shall provide Tenant with the move-in and move-out policies
for the Building with which Tenant shall comply. Throughout the Term, no
furniture, packages, equipment, supplies or merchandise of Tenant will be
received in the Building, or carried up or down in the elevators or stairways,
except during such hours as shall be designated by Landlord, and Landlord in all
cases shall also have the exclusive right to prescribe the method and manner in
which the same shall be brought in or taken out of the Building. At the end of
the Term, Tenant's obligations regarding surrender of the Premises shall include
Tenant's obligation to shampoo all carpet, strip and re-wax all vinyl composite
tile and replace any damaged ceiling tiles, the cost of which obligations shall
be deducted from the Security Deposit if not completed by Tenant prior to the
Expiration Date.
C-2
17. Tenant shall not place oversized cartons, crates or boxes in any area
for trash pickup without Landlord's prior approval. Landlord shall be
responsible for trash pickup of normal office refuse placed in ordinary office
trash receptacles only. Excessive amounts of trash or other out-of-the-ordinary
refuse loads will be removed by Landlord upon request at Tenant's expense.
18. Tenant shall cause all of Tenant's Agents to comply with these Building
Rules.
19. Landlord reserves the right to rescind, suspend or modify any rules or
regulations and to make such other rules and regulations as, in Landlord's
reasonable judgment, may from time to time be needed for the safety, care,
maintenance, operation and cleanliness of the Property. Notice of any action by
Landlord referred to in this paragraph, given to Tenant, shall have the same
force and effect as if originally made a part of the foregoing lease. New rules
or regulations will not, however, be unreasonably inconsistent with the proper
and rightful enjoyment of the Premises by Tenant under the lease.
20. These Building Rules are not intended to give Tenant any rights or
claims in the event that Landlord does not enforce any of them against any other
tenants or if Landlord does not have the right to enforce them against any other
tenants and such non-enforcement will not constitute a waiver as to Tenant.
21. Tenant shall be deemed to have read these Building Rules and to have
agreed to abide by them as a condition to Tenant's occupancy of the Premises.
C-3
EXHIBIT "D"
CLEANING SERVICES
Prepared For: LIBERTY PROPERTY TRUST
Areas to be serviced: 0000 Xxxxxx Xxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
COMMON AREAS, VESTIBULE, LOBBY, STAIRWELLS & CORRIDOR, RESTROOMS, ELEVATORS
DAILY WEEKLY
----- ---------
GENERAL HOUSEKEEPING
Empty waste receptacles X
Sanitize and replace liners in waste receptacles as needed X
Wipe down wall near waste receptacles X
Wipe down trash containers as needed X
Empty paper recycle receptacles X
Remove boxes marked "trash" X
Remove all trash to designated area X
Clean and sanitize drinking fountains X
Dust horizontal surfaces to hand height X
Dust horizontal surfaces above hand height with proper tools AS NEEDED
Remove dust and cobwebs from ceiling areas with proper tools AS NEEDED
Spot clean reception lobby door glass entrances X
Clean entire lobby glass doors X
Clean exterior ash urns X
Clean and sanitize drinking fountains X
TILE FLOORS
Dry mop X
Damp mop (general purpose cleaner) X
CARPET
Vacuum traffic lanes X
Wall to wall detailed vacuum X
RESTROOMS
Clean and sanitize all fixtures X
Clean glass and mirrors X
D-1
Spot clean wall, dispensers and partitions X
Empty waste receptacles X
Sanitize and replace liners in waste receptacles as needed X
Wipe down trash containers as needed X
Refill all dispensers (hand soap, paper products and sanitary napkins) X
Dust horizontal surfaces to hand height X
Dust horizontal surfaces above hand height X
Dry mop X
Damp mop (with an approved disinfectant) X
LOUNGE AREAS
STAIRWELLS (Dust, high and low. Dry and wet mop) X
MISCELLANEOUS SERVICES
D-2
CLEANING SERVICES
Areas to be serviced:
OFFICES
DAILY WEEKLY
----- ---------
GENERAL HOUSEKEEPING
Empty waste receptacles X
Replace liners in waste receptacles as needed X
Wipe down wall near waste receptacles X
Empty paper recycle receptacles X
Remove any boxes marked "trash" X
Remove all trash to designated area (protect floors from leakage) X
Clean and sanitize telephone handsets X
Clean and sanitize drinking fountains X
Dust areas of furniture, desks, chairs, and tables X
Dust areas of filing cabinets, bookcases and shelves X
Dust horizontal surfaces to hand height X
Dust horizontal surfaces above hand height X
Remove dust and cobwebs from ceiling areas X
Spot clean visible areas of desk tops (do not disturb any paper, etc.) X
Spot clean reception lobby glass including front door X
Spot clean glass in partitions and doors through office space AS NEEDED
TILE
Dry mop X
Spot (damp) mop X
Damp mop X
CARPET
Vacuum traffic lanes X
Wall to wall detailed vacuum X
RESTROOMS
DATE LAST REVISED: 11/20/00
FILE NAME: CLEANING SERVICES
D-3
EXHIBIT "E"
TENANT ESTOPPEL CERTIFICATE
Please refer to the documents described in Schedule 1 hereto, (the "Lease
Documents") including the "Lease" therein described; all defined terms in this
Certificate shall have the same meanings as set forth in the Lease unless
otherwise expressly set forth herein. The undersigned Tenant hereby certifies
that it is the tenant under the Lease. Tenant hereby further acknowledges that
it has been advised that the Lease may be collaterally assigned in connection
with a proposed financing secured by the Property and/or may be assigned in
connection with a sale of the Property and certifies both to Landlord and to any
and all prospective mortgagees and purchasers of the Property, including any
trustee on behalf of any holders of notes or other similar instruments, any
holders from time to time of such notes or other instruments, and their
respective successors and assigns (the "Mortgagees") that as of the date hereof.
1. The information set forth in attached Schedule 1 is true and correct.
2. Tenant is in occupancy of the Premises and the Lease is in full force
and effect, and, except by such writings as are identified on Schedule 1, has
not been modified, assigned, supplemented or amended since its original
execution, nor are there any other agreements between Landlord and Tenant
concerning the Premises, whether oral or written.
3. All conditions and agreements under the Lease to be satisfied or
performed by Landlord have been satisfied and performed.
4. Tenant is not in default under the Lease Documents, Tenant has not
received any notice of default under the Lease Documents, and, to Tenant's
knowledge, there are no events which have occurred that, with the giving of
notice and/or the passage of time, would result in a default by Tenant under the
Lease Documents.
5. Tenant has not paid any Rent due under the Lease more than 30 days in
advance of the date due under the Lease and Tenant has no rights of setoff,
counterclaim, concession or other rights of diminution of any Rent due and
payable under the Lease except as set forth in Schedule 1.
6. To Tenant's knowledge, there are no uncured defaults on the part of
Landlord under the Lease Documents, Tenant has not sent any notice of default
under the Lease Documents to Landlord, and there are no events which have
occurred that, with the giving of notice and/or the passage of time, would
result in a default by Landlord thereunder, and that at the present time Tenant
has no claim against Landlord under the Lease Documents.
7. Except as expressly set forth in Part G of Schedule 1, there are no
provisions for any, and Tenant has no, options with respect to the Premises or
all or any portion of the Property.
8. Except as set forth on Part M of Schedule 1, no action, voluntary or
involuntary, is pending against Tenant under federal or state bankruptcy or
insolvency law.
9. The undersigned has the authority to execute and deliver this
Certificate on behalf of Tenant and acknowledges that all Mortgagees will rely
upon this Certificate in purchasing the Property or extending credit to Landlord
or its successors in interest.
10. This Certificate shall be binding upon the successors, assigns and
representatives of Tenant and any party claiming through or under Tenant and
shall inure to the benefit of all Mortgagees.
IN WITNESS WHEREOF, Tenant has executed this Certificate this ___ day
of ___________, 19___.
----------------------------------------
Name of Tenant
By: /s/ XXXXXXXX X. XXXXXX
------------------------------------
Title:
---------------------------------
E-1
SCHEDULE 1 TO TENANT ESTOPPEL CERTIFICATE
Lease Documents, Lease Terms and Current Status
A. Date of Lease:
B. Parties:
1. Landlord:
2. Tenant d/b/a:
C. Premises known as:
D. Modifications, Assignments, Supplements or Amendments to Lease:
E. Commencement Date:
F. Expiration of Current Term:
G. Options:
H. Security Deposit Paid to Landlord: $__________
I. Current Fixed Minimum Rent (Annualized): $__________
J. Current Additional Rent (and if applicable, Percentage Rent) (Annualized):
$__________
K. Current Total Rent: $__________
L. Square Feet Demised:
M. Tenant's Bankruptcy or other Insolvency Actions:
E-2
