Exhibit 10.40
LEASE
FROM:
CALI AIRPORT REALTY ASSOCIATES, L.P.
LESSOR
TO:
BLUESTONE SOFTWARE, INC.
LESSEE
BUILDING:
AIRPORT BUSINESS CENTER
000 XXXXXXX XXXXX
XXXXXX, XXXXXXXXXXXX
TABLE OF CONTENTS
1. DESCRIPTION 3
2. TERM 3
3. BASIC RENT 4
4. USE AND OCCUPANCY 4
5. CARE AND REPAIR OF PREMISES 4
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS 5
7. ACTIVITIES INCREASING FIRE INSURANCE RATES 7
8. ASSIGNMENT AND SUBLEASE 7
9. COMPLIANCE WITH RULES AND REGULATIONS 10
10. DAMAGES TO BUILDING/WAIVER OF SUBROGATION 10
11. EMINENT DOMAIN 11
12. INSOLVENCY OF LESSEE 11
13. LESSEE'S DEFAULT 11
14. LESSOR'S REMEDIES ON XXXXXXX 00
00. SUBORDINATION OF LEASE 15
16. SECURITY DEPOSIT 15
17. RIGHT TO CURE LESSEE'S BREACH 17
18. MECHANIC'S LIENS 17
19. RIGHT TO INSPECT AND REPAIR 17
20. SERVICES TO BE PROVIDED BY LESSOR/LESSOR'S EXCULPATION 17
21. INTERRUPTION OF SERVICES OR USE 18
22. BUILDING STANDARD OFFICE ELECTRICAL SERVICE 18
23. ADDITIONAL RENT 20
24. LESSEE'S ESTOPPEL 23
25. HOLDOVER TENANCY 23
26. RIGHT TO SHOW PREMISES 23
27. LESSOR'S WORK - LESSEE'S DRAWINGS 23
28. WAIVER OF TRIAL BY JURY 23
29. LATE CHARGE 24
30. LESSEE'S INSURANCE 24
31. NO OTHER REPRESENTATIONS 26
32. QUIET ENJOYMENT 26
33. INDEMNITY 26
34. PARAGRAPH HEADINGS 26
35. APPLICABILITY TO HEIRS AND ASSIGNS 26
36. OUTSIDE PARKING SPACES 26
37. LESSOR'S LIABILITY FOR LOSS OF PROPERTY 26
38. PARTIAL INVALIDITY 27
39. LESSEE'S BROKER 27
40. PERSONAL LIABILITY 27
41. NO OPTION 27
42. DEFINITIONS 27
43. LEASE COMMENCEMENT 28
44. NOTICES 28
45. ACCORD AND SATISFACTION 29
46. EFFECT OF WAIVERS 29
47. LEASE CONDITION 29
48. MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE 29
49. LESSOR'S RESERVED RIGHT 29
50. CORPORATE AUTHORITY 29
51. INTENTIONALLY OMITTED 29
52. LESSEE'S RELOCATION 29
53. BUILDING PERMIT 30
54. INTENTIONALLY OMITTED 30
55. USE AND OCCUPANCY TAX AND MISCELLANEOUS TAXES 30
56. APPRAISAL, FAIR MARKET VALUE 31
57. RIGHT OF FIRST OFFER 31
58. ARBITRATION 32
THIS LEASE is made the 29 day of October, 1999, between CALI AIRPORT
REALTY ASSOCIATES, L.P. ("Lessor") whose address is c/o Xxxx-Xxxx Realty
Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 and BLUESTONE
SOFTWARE, INC. ("Lessee") whose address is 000 Xxxxxx Xxxx, Xx. Xxxxxx, Xxx
Xxxxxx 00000.
PREAMBLE
BASIC LEASE PROVISIONS AND DEFINITIONS
In addition to other terms elsewhere defined in this Lease, the following terms
whenever used in this Lease shall have only the meanings set forth in this
section, unless such meanings are expressly modified, limited or expanded
elsewhere herein.
1. ADDITIONAL RENT shall mean all sums in addition to Fixed Basic Rent
payable by Lessee to Lessor pursuant to the provisions of the Lease.
2. BASE PERIOD COSTS shall mean the following:
A. Base Operating Costs: Those Operating Costs incurred during
Calendar Year 1999.
B. Base Real Estate Taxes: Those Real Estate Taxes incurred during
Calendar Year 1999.
C. Base Utility and Energy Costs: 0. See Section 22.a.
3. BUILDING shall mean 000 Xxxxxxx Xxxxx.
4. BUILDING HOLIDAYS shall be those shown on Exhibit E.
5. BUILDING HOURS shall be Monday through Friday, 8:00 a.m. to 6:00 p.m.,
and on Saturdays from 8:00 a.m. to 1:00 p.m., but excluding those
holidays as set forth on Exhibit E attached hereto and made a part
hereof, except that Common Facilities, lighting in the Building and
Office Building Area shall be maintained for such additional hours as,
in Lessor's sole judgement, is necessary or desirable to insure proper
operating of the Building and Office Building Area.
6. COMMENCEMENT DATE is January 1, 2000, and shall for purposes hereof be
subject to Articles 27 and 43 hereof.
7. CONSTRUCTION ALLOWANCE shall mean Four Hundred Seventy-Nine Thousand
One Hundred Forty Dollars ($479,140) which amount is the product of
Twenty Dollars ($20) multiplied by the gross rentable square feet in
the Premises, which is stipulated by the parties to be 23,957 gross
rentable square feet.
8. DEMISED PREMISES OR PREMISES shall from the Commencement Date through
midnight on May 31, 2000, be deemed to be 15,000 gross rentable square
feet on the 3rd floor of the Building identified and shown as Phase 1
on Exhibit A-1 hereto (such space is sometimes hereinafter referred to
as the "Phase 1 Space"). From 12:01 a.m. on June 1, 2000, through the
end of the Term, "Demised Premises" or "Premises" shall mean the Phase
1 Space plus 8,957 gross rentable square feet on the 3rd floor of the
Building identified and shown as Phase 2 on Exhibit A-1 hereto (such
space is sometimes hereinafter referred to as the "Phase 2 Space"). The
combined gross rentable square feet of the Phase 1 Space and the Phase
2 Space is 23,957, all more fully shown on Exhibit A hereto. The
Demised Premises or Premises includes an allocable share of the Common
Facilities as defined in Article 42(b).
9. EXHIBITS shall be the following, attached to this Lease and
incorporated herein and made a part hereof.
Exhibit A Location of Premises
Exhibit X-0 Xxxxx 0 Space and Phase 2 Space
Exhibit X-0 Xxxxxx Xxxxxxxx Xxxx
Xxxxxxx X Rules and Regulations
Exhibit C Lessor's Work
Exhibit C-1 Air Conditioning &
Heating Design Standards
Exhibit D Cleaning Services
Exhibit E Building Holidays
Exhibit F Tenant Estoppel Certificate
Exhibit G Commencement Date Agreement
Exhibit H Form of Letter of Credit
Schedule 1 Rent Schedule
10. EXPIRATION DATE shall be the last day of the month that is the
ninetieth (90th) month after the month in which the Commencement Date
occurs.
11. FIXED BASIC RENT shall mean: FOUR MILLION FIVE HUNDRED SIXTEEN THOUSAND
ONE HUNDRED SIXTY-THREE DOLLARS AND TWENTY-FIVE CENTS ($4,516,163.25)
for the Term payable as shown on Schedule 1 hereto.
12. LESSEE'S BROKER shall mean Insignia/ESG Xxxxxxx-Xxxxx Company.
13. LESSEE'S PERCENTAGE shall be (i) from the Commencement Date through May
31, 2000, 22.06%; and (ii) from 12:01 on June 1, 2000 through the end
of the Term, 35.23%, subject to adjustment as provided for in Article
42(d).
14. OFFICE BUILDING AREA is as set forth on Exhibit A-2.
15. PARKING SPACES shall mean a total of ninety-eight (98) spaces as
follows:
Assigned: N/A
Unassigned: Ninety-eight (98)
Garage: N/A
16. PERMITTED USE shall be general office use and for no other purpose.
17. SECURITY DEPOSIT shall be as defined in Article 16.
18. TERM shall mean seven (7) years and six (6) months from the
Commencement Date, plus the number of days to have the lease expire on
the last day of a calendar month, unless extended pursuant to any
option contained herein.
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W I T N E S S E T H
For and in consideration of the covenants herein contained, and
upon the terms and conditions herein set forth, Lessor and Lessee agree as
follows:
1. DESCRIPTION: Lessor hereby leases to Lessee, and Lessee hereby hires
from Lessor, the Premises as defined in the Preamble which includes an
allocable share of the Common Facilities, as shown on the plan or
plans, initialed by the parties hereto, marked Exhibit A attached
hereto and made part of this Lease in the Building as defined in the
Preamble, (hereinafter called the "Building") which is situated on that
certain parcel of land (hereinafter called "Office Building Area") as
described on Exhibit A-2 attached hereto and made part of this Lease,
together, with the right to use in common with other lessees of the
Building, their invitees, customers and employees, those public areas
of the Common Facilities as hereinafter defined.
2. TERM:
a. The Phase 1 Space is leased for a term to commence on the
Commencement Date, and to end at 12:00 midnight on the Expiration
Date, all as defined in the Preamble. The Phase 2 Space is leased
for a term to commence on June 1, 2000 (the "Phase 2 Commencement
Date"), and to end at 12:00 midnight on the Expiration Date, all
as defined in the Preamble. Lessee agrees not to occupy the Phase
2 Space until the Phase 2 Commencement Date. On the Phase 2
Commencement Date the Phase 2 Space shall become part of the
Demised Premises and the rights, duties and obligations of the
parties with respect to the Phase 2 Space shall be governed by the
terms of this Lease, without the need for any further instrument
or action by the parties. Lessee acknowledges that it is obligated
by this Lease to take and let from Lessor the Phase 1 Space and
the Phase 2 Space.
b. Provided Lessee is not in default under this Lease (after any
applicable notice and lapse of applicable cure periods) and
provided that Lessee has not subleased more than twenty-five
percent (25%) of the Demised Premises or assigned this Lease, as
of the date of exercise or the commencement of the renewal term
("Renewal Term Commencement Date"), Lessee shall have the option
to renew this Lease ("Renewal Option") for the entire Demised
Premises not previously subleased by Lessee for one period of five
(5) years ("Renewal Term"), exercisable by giving written notice
("Renewal Notice") to Lessor of its exercise of the Renewal Option
at least twelve (12) months prior to the Expiration Date. Upon
receiving the Renewal Notice, Lessor shall determine the Fair
Market Rental Rate (as defined in Article 56) for the Premises as
of the Renewal Term Commencement Date in accordance with Section
2.c and shall notify Lessee of such Fair Market Rental Rate at
least nine (9) months prior to the expiration of the initial Term
of this Lease. The Renewal Option is and shall be limited to those
portions of the Demised Premises physically occupied by Lessee and
shall not cover, extend to or be applicable with respect to any
portion of the Demised Premises subleased by Lessee at either the
date of the Renewal Notice or on the Renewal Term Commencement
Date (the "Excluded Space"). Notwithstanding any exercise of the
Renewal Option by Lessee, the Term of this Lease with respect to
the Excluded Space shall end and terminate on the Expiration Date.
c. The initial annual Fixed Basic Rent payable hereunder for the
Premises during the Renewal Term shall be the Fair Market Rental
Rate (as defined in SECTION 56.A) as of the Renewal Term
Commencement Date. The Fair Market Rental Rate shall be initially
reasonably determined by Lessor in accordance with the standards
set forth in Article 56.
d. The Fixed Basic Rent during the Renewal Term shall be adjusted
annually by fifty cents ($.50) per rentable square feet of space
then comprising the Demised Premises.
e. The Renewal Option set forth in this Article 2 is personal to
Tenant and may not be assigned, transferred or conveyed to any
party without the prior written consent of
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Lessor.
f. Notwithstanding the grant of the Renewal Option set forth in this
Article 2, Lessor shall have the right and option following
receipt of a Renewal Notice to relocate Lessee and change the
location of the Premises in accordance with the provisions of
Article 52 ("Relocation Option"), or, if in Lessor's sole judgment
alternative space within the Airport Business Center is not
available for such relocation, to revoke, rescind and terminate
the Renewal Option and any exercise thereof by Lessee ("Revocation
Option"), exercisable by giving written notice ("Lessor's Notice")
to Lessee of its exercise of the Relocation Option or the
Revocation Option, as the case may be, at least eleven (11) months
prior to the Expiration Date. In the event Lessor exercises its
Relocation Option, Lessee may elect to reject the proposed
Substituted Leased Premises by giving written notice to Lessor of
such rejection within fifteen (15) days after Lessee's receipt of
Lessor's Notice ("Lessee's Rejection Notice"). In the event Lessor
exercises its Revocation Option, or if Lessee timely provides to
Lessor a Lessee's Rejection Notice, then Lessor shall pay to
Lessee, within sixty (60) days after the issuance by Lessor to
Lessee of the Revocation Notice a fee in the amount of One Hundred
Fifty Thousand Dollars ($150,000).
3. BASIC RENT: The Lessee shall pay to the Lessor during the Term, the
Fixed Basic Rent as defined in the Preamble (hereinafter called "Fixed
Basic Rent") payable in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment
of public and private debts. The Fixed Basic Rent shall accrue at the
Yearly Rate as shown on Schedule 1 and shall be payable, in advance, on
the first day of each calendar month during the Term at the Monthly
Installments as shown on Schedule 1, except that a proportionately
lesser sum may be paid for the first and last months of the Term of
this Lease if the Term commences on a day other than the first day of
the month, in accordance with the provisions of this Lease herein set
forth. Lessor acknowledges receipt from Lessee of the first monthly
installment by check, subject to collection, for Fixed Basic Rent for
the first month of the Lease Term. Lessee shall pay Fixed Basic Rent,
and any Additional Rent as hereinafter provided, to Lessor at Lessor's
above stated address, or at such other place as Lessor may designate in
writing, without demand and without counterclaim, deduction or set off.
4. USE AND OCCUPANCY: Lessee shall use and occupy the Premises for the
Permitted Use as defined in the Preamble.
If at any time during the Term of this Lease, Lessee adopts a policy
prohibiting Lessee, its employees, agents or invitees from smoking
within the Premises, Lessee shall establish a designated area with in
the Premises where Lessee shall permit smoking. Lessee shall establish
such designated area at Lessee's sole expense in accordance with
Article 6 of this Lease. Such designated area shall include, among
other things, adequate area, ventilation and fire safety equipment.
Lessee hereby acknowledges that such designated area is necessary and
reasonable to prevent smoking by Lessee, Lessee's employees, agents and
invitees in unauthorized areas of the Building or Common Facilities in
violation of relevant fire and safety laws and regulations and to
prevent fire hazards within the Premises.
5. CARE AND REPAIR OF PREMISES: Lessee shall commit no act of waste and
shall take good care of the Premises and the fixtures and appurtenances
therein, and shall, in the use and occupancy of the Premises, conform
to all laws, orders and regulations of the federal, state and municipal
governments or any of their departments affecting the Premises and with
any and all environmental requirements resulting from the Lessee's use
of the Premises, this covenant to survive the expiration or sooner
termination of the Lease. Lessor shall, subject to the same being
included in Operating Costs, make all necessary repairs to the
Premises, Common Facilities and to the assigned parking areas, if any,
except where the repair has been made necessary by misuse or neglect by
Lessee or Lessee's agents, servants, visitors or licensees, in which
event Lessor shall nevertheless make the repair but Lessee shall pay to
Lessor, as Additional Rent, immediately upon demand, the costs
therefor. All improvements made by Lessee to the Premises, which are so
attached to the Premises, shall become the property of Lessor upon
installation. Not later than the last day of the Term, Lessee shall, at
Lessee's expense, remove all Lessee's personal property and those
improvements made by
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Lessee which have not become the property of Lessor, including trade
fixtures, cabinetwork, movable paneling, partitions and the like;
repair all injury done by or in connection with the installation or
removal of said property and improvements; and surrender the Premises
in as same condition as they were at the beginning of the Term,
reasonable wear and damage by fire, the elements, casualty or other
cause not due to the misuse or neglect by Lessee, Lessee's agents,
servants, visitors or licensees excepted. All other property of Lessee
remaining on the Premises after the last day of the Term of this Lease
shall be conclusively deemed abandoned and may be removed by Lessor,
and Lessee shall reimburse Lessor for the cost of such removal. Lessor
may have any such property stored at Lessee's risk and expense.
Lessee shall not generate, handle, dispose, bring, store or discharge
or permit the generation, handling, disposal, bringing, storage or
discharge of any hazardous substances or wastes (collectively,
"Hazardous Materials") in, upon or about the Premises, the Building or
the Office Building Area in violation of any laws and/or requirements
of public authorities (hereinafter collectively referred to as
"Prohibited Actions"). Lessee shall indemnify and hold Lessor harmless
against any and all loss, cost, damage, liability or expense (including
without limitation, attorney's fees, and disbursements) which Lessor
may sustain or incur as a result of any Prohibited Actions. Lessee
shall have no liability with respect to any Prohibited Action that
occurred, or the presence of any Hazardous Materials in the Premises,
Building or Office Building Area which existed, prior to the
Commencement Date, unless caused by the acts or omissions of Lessee,
its employees, agents or contractors.
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS:
a. Lessee shall not, without first obtaining the written consent of
Lessor, make any alterations, additions or improvements in, to or
about the Premises.
b. Provided that the proposed alteration, addition or improvement
does not in Landlord's judgment involve any modification to the
Building's exterior or its structural, mechanical, HVAC,
electrical, or plumbing systems or components, or require the
issuance of a building permit by Tinicum Township under its
applicable codes, rules and ordinances such approval shall not be
unreasonably withheld or delayed, but may be conditioned upon
compliance with reasonable requirements of Lessor, including
without limitation, the filing of mechanics' lien waivers by
Lessee's contractors and the submission of written evidence of
adequate insurance coverage naming Lessor as an additional insured
thereunder, and the removal of such from, and the restoration of,
the Demised Premises at the end of the Term.
x. Xxxxxx may withhold its approval in its absolute and sole
discretion with respect to each such alteration, addition or
improvement which Lessor determines involved any modification to
the Building's exterior or its structural, electrical, mechanical,
HVAC or plumbing systems or any components thereof.
d. Lessee shall not permit any lien to be filed against the Premises
or the Building, or the Building Area or Lessor's interest therein
or permit any financing statement or statements to be filed with
respect to any of the foregoing alterations, additions or
improvements made by Lessee and all fixtures attached to the
Premises (other than Lessor's trade and business fixtures and
equipment) shall, unless Lessor gives Lessee notice to remove
them, remain at the Premises at the expiration or sooner
termination of this Lease and become the property of Lessor
without payment therefor or, at Lessor's option, after notice to
Lessee, any or all of the foregoing which may be designated by
Lessor in such removal notice shall be removed at the sole cost of
Lessee, before such expiration or sooner termination and in such
event, Lessee shall repair all damage to the Premises caused by
the installation or removal thereof, and shall restore the
Premises to its original improved condition (ordinary wear and
tear excepted), on or before the expiration or termination of this
Lease. Should Lessee fail to remove the same or restore the
Premises, Lessor may cause same to be removed and/or the Premises
to be restored at Lessee's expense, and Lessee hereby agrees to
pay for Lessor the actual cost of such removal and/or restoration,
together with any and all damages which Lessor may suffer and
sustain by reason of the
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failure of Lessee to remove the same and/or restore the Premises
as herein provided.
e. All such alterations, additions or improvements shall be performed
at Lessee's cost by Lessor or one or more contractors reasonably
approved by Lessor and Lessee, and shall be subject to all
applicable requirements of Exhibit C hereof.
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7. ACTIVITIES INCREASING FIRE INSURANCE RATES: Lessee shall not do or
suffer anything to be done on the Premises which will increase the rate
of fire insurance on the Building.
8. ASSIGNMENT AND SUBLEASE: Provided Lessee is not in default of any
provisions of this Lease, Lessee may assign or sublease the within
Lease to any party subject to the following:
a. In the event Lessee desires to assign this Lease or sublease all
or part of the Premises to any other party, the terms and
conditions of such assignment or sublease shall be communicated to
the Lessor in writing prior to the effective date of any such
sublease or assignment, and, prior to such effective date, the
Lessor shall have the option, exercisable in writing to the
Lessee, to: (i) sublease such space from Lessee at the lower rate
of (a) the rental rate per rentable square foot of Fixed Basic
Rent and Additional Rent then payable pursuant to this Lease or
(b) the terms set forth in the proposed sublease, (ii) recapture
in the case of subletting, that portion of the Premises to be
sublet or all of the Premises in the case of an assignment
("Recapture Space") so that such prospective sublessee or assignee
shall then become the sole lessee of Lessor hereunder, or (iii)
recapture the Recapture Space for Lessor's own use and the within
Lessee shall be fully released from any and all obligations
hereunder with respect to the Recapture Space.
b. In the event that the Lessor elects not to recapture the Lease as
hereinabove provided, the Lessee may nevertheless assign this
Lease or sublet the whole or any portion of the Premises, subject
to the Lessor's prior written consent, which consent shall not be
unreasonably withheld, on the basis of the following terms and
conditions:
i. The Lessee shall provide to the Lessor the name and
address of the assignee or sublessee.
ii. The assignee or sublessee shall assume, by written
instrument, all of the obligations of this Lease, and a
copy of such assumption agreement shall be furnished to
the Lessor within ten (10) days of its execution. Any
sublease shall expressly acknowledge that said
sublessee's rights against Lessor shall be no greater
than those of Lessee. Lessee further agrees that
notwithstanding any such subletting, no other and
further subletting of the Premises by Lessee or any
person claiming through or under Lessee shall or will be
made except upon compliance with and subject to the
provisions of this Article 8.
iii. Each sublease shall provide that it is subject and
subordinate to this Lease and to the matters to which
this Lease is or shall be subordinate, and that in the
event of default by Lessee under this Lease, Lessor may,
at its option, take over all of the right, title and
interest of Lessee, as sublessor, under such sublease,
and such sublessee shall, at Lessor's option, attorn to
Lessor pursuant to the then executory provisions of such
sublease, except that Lessor shall not (i) be liable for
any previous act or omission of Lessee under such
sublease or, (ii) be subject to any offset not expressly
provided in such sublease which theretofore accrued to
such sublease to which Lessor has not specifically
consented in writing or by any previous prepayment of
more than one month's rent.
iv. The Lessee and each assignee shall be and remain liable
for the observance of all the covenants and provisions
of this Lease, including, but not limited to, the
payment of Fixed Basic Rent and Additional Rent reserved
herein, through the entire Term of this Lease, as the
same may be renewed, extended or otherwise modified.
v. The Lessee and any assignee shall promptly pay to Lessor
any consideration received for any assignment and/or all
of the rent, as and when received, in excess of the Rent
required to be paid by Lessee for the area sublet
computed on the basis of an average square foot rent for
the gross square footage Lessee has leased.
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vi. In any event, the acceptance by the Lessor of any rent
from the assignee or from any of the subtenants or the
failure of the Lessor to insist upon a strict
performance of any of the terms, conditions and
covenants herein shall not release the Lessee herein,
nor any assignee assuming this Lease, from any and all
of the obligations herein during and for the entire Term
of this Lease.
vii. Lessor shall require a FIVE HUNDRED AND 00/100 DOLLAR
($500.00) payment to cover its handling charges for each
request for consent to any sublet or assignment prior to
its consideration of the same. Lessee acknowledges that
its sole remedy with respect to any assertion that
Lessor's failure to consent to any sublet or assignment
is unreasonable shall be the remedy of specific
performance and Lessee shall have no other claim or
cause of action against Lessor as a result of Lessor's
actions in refusing to consent thereto.
c. If Lessee is a corporation other than a corporation whose stock is
listed and traded on a nationally recognized stock exchange, the
provisions of Subsection 8a. shall apply to a transfer (however
accomplished, whether in a single transaction or in a series of
related or unrelated transactions) of stock (or any other
mechanism such as, by way of example, the issuance of additional
stock, a stock voting agreement or change in class(es) of stock)
which results in a change of control of Lessee as if such transfer
of stock (or other mechanism) which results in a change of control
of Lessee were an assignment of this Lease, and if Lessee is a
partnership or joint venture, said provisions shall apply with
respect to a transfer (by one or more transfers) of an interest in
the distributions of profits and losses of such partnership or
joint venture (or other mechanism, such as, by way of example, the
creation of additional general partnership or limited partnership
interests) which results in a change of control of such a
partnership or joint venture, as if such transfer of an interest
in the distributions of profits and losses of such partnership or
joint venture which results in a change of control of such
partnership or joint venture were an assignment of this Lease; but
said provisions shall not apply to transactions with a corporation
into or with which Lessee is merged or consolidated or to which
all or substantially all of Lessee's assets are transferred or to
any corporation which controls or is controlled by Lessee or is
under common control with Lessee, provided that in the event of
such merger, consolidation or transfer of all or substantially all
of Lessee's assets (i) the successor to Lessee has a net worth
computed in accordance with generally accepted accounting
principles at least equal to the greater of (1) the net worth of
Lessee immediately prior to such merger, consolidation or
transfer, or (2) the net worth of Lessee herein named on the date
of this Lease, and (ii) proof satisfactory to Lessor of such net
worth shall have been delivered to Lessor at least 10 days prior
to the effective date of any such transaction.
d. In the event that any or all of Lessee's interest in the Premises
and/or this Lease is transferred by operation of law to any
trustee, receiver, or other representative or agent of Lessee, or
to Lessee as a debtor in possession, and subsequently any or all
of Lessee's interest in the Premises and/or this Lease is offered
or to be offered by Lessee or any trustee, receiver, or other
representative or agent of Lessee as to its estate or property
(such person, firm or entity being hereinafter referred to as the
"Grantor", for assignment, conveyance, lease, or other disposition
to a person, firm or entity other than Lessor (each such
transaction being hereinafter referred to as a "Disposition"), it
is agreed that Lessor has and shall have a right of first refusal
to purchase, take, or otherwise acquire, the same upon the same
terms and conditions as the Grantor thereof shall accept upon such
Disposition to such other person, firm, or entity; and as to each
such Disposition the Grantor shall give written notice to Lessor
in reasonable detail of all of the terms and conditions of such
Disposition within twenty (20) days next following its
determination to accept the same but prior to accepting the same,
and Grantor shall not make the Disposition until and unless Lessor
has failed or refused to accept such right of first refusal as to
the Disposition, as set forth herein.
Lessor shall have sixty (60) days next following its receipt of
the written notice as to such Disposition in which to exercise the
option to acquire Lessee's interest by
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such Disposition, and the exercise of the option by Lessor shall
be effected by notice to that effect sent to the Grantor; but
nothing herein shall require Lessor to accept a particular
Disposition or any Disposition, nor does the rejection of any one
such offer of first refusal constitute a waiver or release of the
obligation of the Grantor to submit other offers hereunder to
Lessor. In the event Lessor accept such offer of first refusal,
the transaction shall be consummated pursuant to the terms and
conditions of the Disposition described in the notice to Lessor.
In the event Lessor rejects such offer of first refusal, Grantor
may consummate the Disposition with such other person, firm, or
entity; but any decrease in price of more than two percent (2%) of
the price sought from Lessor or any change in the terms of payment
for such Disposition shall constitute a new transaction requiring
a further option of first refusal to be given to Lessor hereunder.
e. Without limiting any of the provisions of Articles 12 and 13, if
pursuant to the Federal Bankruptcy Code (herein referred to as the
"Code"), or any similar law hereafter enacted having the same
general purpose, Lessee is permitted to assign this Lease
notwithstanding the restrictions contained in this Lease, adequate
assurance of future performance by an assignee expressly permitted
under such Code shall be deemed to mean the deposit of cash
security in an amount equal to the sum of one year's Fixed Basic
Rent plus an amount equal to the Additional Rent for the calendar
year preceding the year in which such assignment is intended to
become effective, which deposit shall be held by Lessor for the
balance of the Term, without interest, as security for the full
performance of all of Lessee's obligations under this Lease, to be
held and applied in the manner specified for security in Article
16.
f. Except as specifically set forth above, no portion of the Premises
or of Lessee's interest in this Lease may be acquired by any other
person or entity, whether by assignment, mortgage, sublease,
transfer, operation of law or act of the Lessee, nor shall Lessee
pledge its interest in this Lease or in any security deposit
required hereunder.
9. COMPLIANCE WITH RULES AND REGULATIONS: Lessee shall observe and comply
with the rules and regulations hereinafter set forth in Exhibit B
attached hereto and made a part hereof and with such further reasonable
rules and regulations of general applicability to all tenants in the
Building as Lessor may prescribe, on written notice to the Lessee, for
the safety, care and cleanliness of the Building and the comfort, quiet
and convenience of other occupants of the Building. Lessee shall not
place a load upon any floor of the Premises exceeding the floor load
per square foot area which it was designed to carry and which is
allowed by law. Lessor reserves the right to prescribe the weight and
position of all safes, business machines and mechanical equipment. Such
installations shall be placed and maintained by Lessee, at Lessee's
expense, in settings sufficient, in Lessor's judgement, to absorb and
prevent vibration, noise and annoyance.
10. DAMAGES TO BUILDING: If the Building is damaged by fire or any other
cause to such extent the cost of restoration, as reasonably estimated
by Lessor, will equal or exceed thirty- five percent (35%) of the
replacement value of the Building (exclusive of foundations) just prior
to the occurrence of the damage, then Lessor may, no later than the
sixtieth (60th) day following the date of damage, give Lessee a notice
of election to terminate this Lease, or if the cost of restoration will
equal or exceed fifty percent (50%) of such replacement value and if
the Premises shall not be reasonably usable for the purpose for which
they are leased hereunder, then Lessee may, no later than the sixtieth
(60th) day following the date of damage, give Lessor a notice of
election to terminate this Lease. In either said event of election,
this Lease shall be deemed to terminate on the thirtieth (30th) day
after the giving of said notice, and Lessee shall surrender possession
of the Premises within a reasonable time thereafter, and the Fixed
Basic Rent, and any Additional Rent, shall be apportioned as of the
date of said damage and any Fixed Basic Rent or Additional Rent paid
for any period beyond said date shall be repaid to Lessee. If the cost
of restoration shall not entitle Lessor to terminate this Lease, or if,
despite the cost, Lessor does not elect to terminate this Lease, Lessor
shall restore the Building and the Premises with reasonable promptness,
subject to Force Majeure, and Lessee shall have no right to terminate
this Lease. Lessor need not restore fixtures and improvements owned or
installed by Lessee.
10
In any case in which use of the Premises is affected by any damage to
the Building, there shall be either an abatement or an equitable
reduction in Fixed Basic Rent, depending on the period for which and
the extent to which the Premises are not reasonably usable for the
purpose for which they are leased hereunder. The words "restoration"
and "restore" as used in this Article 10 shall include repairs. If the
damage results from the fault of the Lessee, Lessee's agents, servants,
visitors or licensees, Lessee shall not be entitled to any abatement
or reduction in Fixed Basic Rent, except to the extent of any rent
insurance received by Lessor.
11. EMINENT DOMAIN: If Lessee's use of the Premises is materially affected
due to the taking by eminent domain of (a) the Premises or any part
thereof or any estate therein; or (b) any other part of the Building;
then, in either event, this Lease shall terminate on the date when
title vests pursuant to such taking. The Fixed Basic Rent, and any
Additional Rent, shall be apportioned as of said termination date and
any Fixed Basic Rent or Additional Rent paid for any period beyond said
date, shall be repaid to Lessee. Lessee shall not be entitled to any
part of the award for such taking or any payment in lieu thereof, and
Lessee hereby assigns to Lessor any and all right, title and interest
of Lessee now or hereafter arising in or to any such award or any part
thereof and hereby waives all rights against Lessor and the condemning
authority, but Lessee may file a separate claim for any taking of
fixtures and improvements owned by Lessee which have not become the
Lessor's property, and for moving expenses, provided the same shall, in
no way, affect or diminish Lessor's award. In the event of a partial
taking which does not effect a termination of this Lease but does
deprive Lessee of the use of a portion of the Premises, there shall
either be an abatement or an equitable reduction of the Fixed Basic
Rent, and an equitable adjustment reducing the Base Period Costs as
hereinafter defined depending on the period for which and the extent to
which the Premises so taken are not reasonably usable for the purpose
for which they are leased hereunder.
12. INSOLVENCY OF LESSEE: Either (a) the appointment of a receiver to take
possession of all or substantially all of the assets of Lessee, or, (b)
a general assignment by Lessee for the benefit of creditors, or, (c)
any action taken or suffered by Lessee under any insolvency or
bankruptcy act, shall constitute a default of this Lease by Lessee, and
Lessor may terminate this Lease forthwith and upon notice of such
termination Lessee's right to possession of the Premises shall cease,
and Lessee shall then quit and surrender the Premises to Lessor but
Lessee shall remain liable as hereinafter provided in Article 14
hereof.
13. LESSEE'S DEFAULT: A breach of this Lease shall have occurred if Lessee
defaults in the payment of Fixed Basic Rent, or any Additional Rent, or
defaults in the performance of any of the other duties, obligations,
covenants and conditions hereof or permits the Premises to become
deserted, abandoned or vacated, if Lessee does not cure any Fixed Basic
Rent or Additional Rent default or a default under any of Articles 18
or 30 within five (5) business days after receiving notice from Lessor
of such default or, if Lessee does not cure any other default within
thirty (30) days after receiving notice from Lessor of such default (or
if such other default is of such nature that it cannot be completely
cured within such period, if Lessee does not commence such curing
within such fifteen (15) days and thereafter proceed with reasonable
diligence and in good faith to cure such default) (each, an "Event of
Default").
14. LESSOR'S REMEDIES
a. Upon the occurrence of any Event of Default, Lessor, at its
option, and without notice or other act, may exercise any and all
rights and remedies at law and/or in equity under the Lease
including, without limitation, all or any one or more of the
following actions:
1. Lessor may cure for the account of Lessee any such
Event of Default of Lessee and immediately recover as
Additional Rent any reasonable expenditures made and the
amount of any obligations incurred in connection
therewith, plus interest from the date of any such
expenditure equal to the lesser of (A) the greater of
(i) twelve percent (12%) per annum, or (ii) the prime
rate published in the Wall Street Journal (the "Prime
Rate") on the date of such expenditure plus four hundred
(400) basis points, or (B) the
11
maximum amount or rate that Lessor may lawfully charge
Lessee in the circumstances if such a maximum exists; or
2. Lessor shall be entitled to terminate this Lease and
recover as a calculation of its lost profits, all Fixed
Basic Rent, Additional Rent, and other rent which has
accrued prior to the date of said Event of Default and
which is due for the balance of the Term and declare the
same to be immediately due and payable. It is agreed
that in determining the amount of any future payments
due Lessor of Lessee's Percentage of Operating Costs
Escalation, Utility and Energy Costs Escalation and Tax
Escalation Costs, Lessor may make such determination
based upon the sum thereof for the full Lease Year
immediately prior to the Event of Default. The sum set
forth above as aforesaid shall be discounted to present
value at the lower of (a) the Prime Rate in effect on
the date of such termination; or (b) six percent (6%)
(the "Lost Profit Sum"). Contemporaneously with the
demand for such Lost Profit Sum, this Lease shall be
deemed terminated and Lessee shall immediately quit and
surrender to Lessor the Premises in accordance with (4)
below. Lessee's liability for the payment of the Lost
Profit Sum shall survive the termination of the Lease;
or
3. Accelerate the whole or any part of the rent for the
entire unexpired balance of the Term (or such part
thereof as Lessor determines), as well as all other
charges, payments, costs and expenses herein agreed to
be paid by Lessee, and any rent or other charges,
payments, costs and expenses if so accelerated shall, in
addition to any and all installments of rent already due
and payable and in arrears, and any other charge or
payment herein reserved, included or agreed to be
treated or collected as rent and any other charge,
expense or cost herein agreed to be paid by Lessee which
may be due and payable and in arrears, be deemed due and
payable as if, by the terms and provisions of this
Lease, such accelerated rent and other charges,
payments, costs and expenses were on that date payable
in advance. Such sum is hereinafter referred to as the
"Accelerated Rent". For such purposes, all items of the
Additional Rent component of the Accelerated Rent,
Lessor may make a determination based upon such sums for
the full Lease Year immediately prior to the event of
default, or otherwise in Lessor's reasonable judgment;
or
4. Lessor, at its option, may serve notice upon Lessee
that this Lease and the then unexpired Term hereof shall
cease and expire and become absolutely void on the date
specified in such notice, to be no less than ten (10)
days after the receipt thereof by Lessee, without any
right on the part of the Lessee thereafter to save the
forfeiture by payment of any sum due or by the
performance of any term, provision, covenant, agreement
or condition broken; and, thereupon and at the
expiration of the time limit in such notice, this Lease
and the Term hereof granted, as well as the right, title
and interest of the Lessee hereunder, shall wholly cease
and expire and become void in the same manner and with
the same force and effect (except as to Lessee's
liability) as if the date fixed in such notice were the
date herein stated for expiration of the Term.
Thereupon, Lessee shall immediately quit and surrender
to Lessor the Premises by summary proceedings, detainer,
ejectment or otherwise and remove itself and all other
occupants thereof and, at Lessor's option, any property
thereon without being liable to indictment, prosecution
or damages therefor. No such expiration or termination
of this Lease shall relieve Lessee of the liabilities
and obligations under this Lease, whether or not the
Premises shall be relet, all of which shall survive such
expiration or termination; or
5. Lessor may, at any time after the occurrence of any
Event of Default, whether or not the Lease has been
terminated as aforesaid, re-enter and repossess the
Premises and any part thereof with or without process of
law, provided no undue force shall be used, and shall
have the option, but not the obligation either in its
own name, as agent for Lessee if this Lease has not
12
been terminated or for its own behalf if this Lease has
been terminated, to relet all or any part of the
Premises; provided that Lessor shall not be required to
accept any tenant proposed by Lessee or observe any
instruction given by Lessee about such reletting. The
failure of Lessor to relet the Premises or any part or
parts thereof shall not release or affect Lessee's
liability hereunder, nor shall Lessor be liable for
failure to relet, or in the event of reletting, for
failure to collect the rent thereof, and in no event
shall Lessee be entitled to receive any excess of net
rents collected over sums payable by Lessee to Lessor
hereunder. No such re-entry or taking possession of the
Premises shall be construed as an election on the
Lessor's part to terminate this Lease unless a written
notice of such election by Lessor is given to Lessee.
Notwithstanding any such reletting without termination,
Lessor may at any time thereafter elect to terminate
this Lease for any previous breach and default. For the
purpose of such reletting, Lessor may decorate or make
repairs, changes, alterations or additions in or to the
Premises to the extent deemed by Lessor desirable or
convenient, and the cost of such decoration, repairs,
changes, alterations or additions shall be charged to
and payable by Lessee as Additional Rent hereunder, as
well as any reasonable brokerage and legal fees expended
by Lessor; and any sums collected by Lessor from any new
tenant obtained on account of the Lessee shall be
credited against the balance of the rent due hereunder
as aforesaid. Lessee shall pay to Lessor monthly, on the
days when the rent would have been payable under this
Lease, the amount due hereunder less the amount obtained
by Lessor from such new tenant, if any; or
6. Lessor may commence one or more actions to recover
all unpaid rent including, without limitation, the
accelerated rent and/or to recover possession of the
Premises; or
7. Lessor may apply all or part of the Security Deposit.
b. Intentionally Omitted.
x. Xxxxxx shall have the right of injunction (including, without
limitation, specific performance) in the Event of Default, to
restrain the same, and the right to invoke any remedy allowed by
law or in equity, whether or not other remedies, indemnity or
reimbursements are herein provided. The rights and remedies given
to Lessor in this Lease or at law or in equity are distinct,
separate and cumulative remedies, and no one of them, whether or
not exercised by Lessor, shall be deemed to be in exclusion of any
other.
d. Lessee expressly waives the benefits of all laws, now or hereafter
in force, exempting any of Lessee's property on the Premises or
elsewhere from distraint, levy or sale in any legal proceedings
taken by Lessor to enforce any rights under this Lease. Lessee
further waives the right of inquisition on any real estate that
may be levied upon to collect any amount which may become due
under the terms and conditions of this Lease, and does hereby
voluntarily condemn the same and authorize the prothonotary to
enter a Writ of Execution or other process upon Lessee's voluntary
condemnation, and further agrees that said real estate may be sold
on a Writ of Execution or other process. If proceedings shall be
commenced by Lessor to recover possession under the Acts of
Assembly, either at the end of the Term or any extension thereof
or on sooner termination thereof, or for non-payment of rent or
any other reason, Lessee specifically waives the right to the
three (3) months notice and/or the fifteen (15) or thirty (30)
days notice required by the Act of April 5, 1957, No. 20, and
agrees that ten (10) days notice shall be sufficient in either or
any such case. The right to enter judgment against Lessee and to
enforce all of the other provisions of this Lease hereinabove
provided for may be exercised by any assignee of Lessor's right,
title and interest in this Lease, in such assignee's own name,
notwithstanding the fact that any or all assignments of said
right, title and interest may not be executed and/or witnessed in
accordance with the Acts of Assembly and any and all laws
regulating the manner and/or form in which such assignments shall
be executed and witnessed.
13
e. INTENTIONALLY OMITTED.
f. CONFESSION OF JUDGMENT - POSSESSION. Lessee covenants and agrees
that if there is an Event of Default or this Lease is terminated
or the Term or any extensions or renewals thereof is terminated or
expires, then, and in addition to the rights and remedies set
forth in this Article 14, Lessor may, without limitation, cause
judgments in ejectment for possession of the Premises to be
entered against Lessee and, for those purposes, Lessee hereby
grants the following warrant of attorney: (i) Lessee hereby
irrevocably authorizes and empowers any prothonotary, clerk of
court, attorney of any court of record and/or Lessor (as well as
some one acting for Lessor) in any and all actions commenced for
recovery of possession of the Premises to appear for Lessee and
confess or otherwise enter judgment in ejectment for possession of
the Premises against Lessee and all persons claiming directly or
indirectly by, through or under Lessee, and thereupon writ or
writs of possession and other process may forthwith issue and be
served, without any prior notice, writ or proceeding whatsoever;
(ii) if, for any reason after the foregoing action or actions
shall have been commenced, it shall be determined that possession
of the Premises should remain in or be restored to Lessee, Lessor
shall have the right to commence with respect to any continuing or
subsequent Event of Default one or more further actions as
hereinbefore set forth to recover possession of the Premises
including, without limitation, appearing for Lessee and confessing
or otherwise entering judgment for possession of the Premises as
hereinbefore set forth.
g. When this Lease or the Term or any extension or renewal thereof
shall have terminated on account of an Event of Default or
otherwise and also when the Term hereby created or any extension
or renewal thereof shall have expired, it shall be lawful for, and
Lessee hereby irrevocably authorizes and empowers, any
prothonotary, clerk or attorney of any court of record to appear
as attorney for Lessee, and in any action or actions in ejectment
against Lessee and all persons claiming directly or indirectly by,
through or under Lessee therein enter and otherwise confess
judgment for the recovery by Lessor of possession the Premises,
for which this Lease shall be sufficient warrant; thereupon, if
Lessor so desires, an appropriate writ of possession may issue
forthwith, without any prior writ or proceeding whatsoever. Lessor
may commence one or more further action or actions as hereinbefore
set forth to recover possession of the Premises, appear for Lessee
enter and otherwise confess judgment for the recovery by Lessor of
possession of the Premises as hereinbefore provided as often as
Lessor elects. The warrant of attorney herein shall not be
exhausted by any one or more exercises thereof.
THE PRIOR TWO PARAGRAPHS SET FORTH WARRANTS OF AUTHORITY FOR AN
ATTORNEY TO CONFESS JUDGMENTS AGAINST LESSEE FOR POSSESSION OF THE
PREMISES. IN GRANTING THESE WARRANTS OF ATTORNEY TO CONFESS
JUDGMENTS AGAINST LESSEE, LESSEE HEREBY KNOWINGLY, INTENTIONALLY
AND VOLUNTARILY, AND, ON THE ADVICE OF THE SEPARATE COUNSEL OF
LESSEE, UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS LESSEE HAS OR
MAY HAVE WITH RESPECT TO PRIOR NOTICE (EXCEPT AS TO ANY NOTICE
REQUIRED UNDER ARTICLE 13 HEREOF) AND AN OPPORTUNITY FOR HEARING
UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES
AND THE COMMONWEALTH OF PENNSYLVANIA.
h. In any action or proceeding described in Subsection 14.f. and/or
Subsection 14.g., or in connection therewith, if a copy of this
Lease is therein verified by Lessor or someone acting for Lessor
to be a true and correct copy of this Lease (and such copy shall
be conclusively presumed to be true and correct by virtue of such
verification), then it shall not be necessary to file the original
of this Lease, any statute, rule of court of law, custom or
practice to the contrary notwithstanding. Lessee hereby releases
to Lessor, anyone acting for Lessor and all attorneys who may
appear for Lessee all errors in procedure regarding the entry of
judgment or judgments by confession or
14
otherwise by virtue of the warrants of attorney contained in this
Lease, and all liability therefor. The right to enter judgment or
judgments by confession or otherwise by virtue of the warrants of
attorney contained in this Lease and to enforce all of the other
provisions of this Lease may be exercised by any assignee of
Lessor's right, title and interest in this Lease in such
assignee's own name, any statute, rule of court or law, custom or
practice to the contrary notwithstanding.
i. Lessee, for itself and on behalf of any and all persons claiming
through or under it (including creditors of all kinds), does
hereby waive and surrender all right and privilege which they or
any of them might have under or by reason of any present or future
law, to redeem the Premises or to have a continuance of this Lease
for the Term, as it may have been extended, after having been
dispossessed or ejected therefrom by process of law or under the
terms of this Lease or after the termination of this Lease as
herein provided.
j. The failure or delay on the part of Lessor to enforce or exercise
at any time any of the provisions, rights or remedies in the Lease
shall in no way be construed to be a waiver thereof, nor in any
way to affect the validity of this Lease or any act hereof, or the
right of the Lessor to thereafter enforce each and every such
provisions, right or remedy. No waiver of any breach or default of
this Lease shall be held to be a waiver of any other or subsequent
breach or default. The receipt by Lessor of rent at a time when
the rent is in default under this Lease shall not be construed as
a waiver of such default. No act or thing done by Lessor or
Lessor's agents or employees during the Term and any extension
thereof shall be deemed an acceptance of a surrender of the
Premises, and no agreement to accept such a surrender shall be
valid unless in writing and signed by Lessor.
k. In the event that Lessor institutes or takes any action permitted
above following an Event of Default by Lessee, it is specifically
agreed that Lessor shall recover from, or be paid by Lessee, in
addition to all items which Lessor may be entitled to recover in
law or in equity, whether or not Lessor does recover such items,
attorney's fees, and the costs and disbursements of said
proceeding or otherwise. Said payments shall be due as Additional
Rent, and Lessor's petition and/or pleadings may make demand for
payment of attorney's fees as an amount currently due and owing to
Lessor as of the date of the petition and/or pleadings, without
the necessity of any prior or further demand therefor or invoice
for the same.
15. SUBORDINATION OF LEASE: This Lease shall, at Lessor's option, or at the
option of any holder of any underlying lease or holder of any mortgages
or trust deed, be subject and subordinate to any such underlying leases
and to any such mortgages or trust deed which may now or hereafter
affect the real property of which the Premises form a part, and also to
all renewals, modifications, consolidations and replacements of said
underlying leases and said mortgages or trust deed. Although no
instrument or act on the part of Lessee shall be necessary to
effectuate such subordination, Lessee will, nevertheless, execute and
deliver such further instruments confirming such subordination of this
Lease as may be desired by the holders of said mortgages or trust deed
or by any of the lessor's under such underlying leases. Lessee hereby
appoints Lessor attorney-in-fact, irrevocably, to execute and deliver
any such instrument for Lessee. If any underlying lease to which this
Lease is subject terminates, Lessee shall, on timely request, attorn to
the owner of the reversion.
16. SECURITY DEPOSIT:
a. Lessee shall deliver to Lessor on the signing of this Lease, an
irrevocable, unconditional letter of credit issued or confirmed by
a financial institution, having a banking office in Philadelphia,
Pennsylvania, reasonably acceptable to Lessor in the amount of Six
Hundred Thousand Dollars ($600,000), substantially in the form of
Exhibit H attached hereto, with only such modifications as are
acceptable to Lessor in form and substance, naming Lessor, its
successors and assigns, as beneficiary (the "Letter of Credit")
for the full and faithful performance of Lessee's obligations
under this Lease, including without limitation, the surrender of
possession of the Premises to Lessor as herein provided. The
Letter of Credit shall be issued or renewed (as the case may be)
for consecutive periods of one year each. Each renewal or
replacement Letter or Credit shall be in substantially the same
form as that of the letter of credit attached hereto as Exhibit H.
In the event the Letter of
15
Credit is not renewed or reissued at least ten (10) business days
prior to the expiration of the then existing Letter of Credit,
Lessor shall be entitled to draw-down on the Letter of Credit in
the full amount thereof, or in any lesser amount in Lessor's
discretion. The amount of any such draw-down shall be deposited in
a money market account (the "Account"), and no amount thereof
shall be finally released to Lessor until and unless Lessee
defaults with respect to its obligations under the terms of this
Lease. Upon the reissue or renewal of the Letter of Credit as
required hereunder, any amount remaining in the Account. For
purposes of this Lease the term "Security Deposit" shall be deemed
to mean the Letter of Credit or the funds in the Account, as the
case may be.
b. Provided that no default by Lessee with respect to the payment of
Fixed Basic Rent, of any Additional Rent, or any other monetary
obligation (each a "Monetary Obligation") has occurred and is
continuing (or if not continuing has been cured by payment by
Lessee without Lessor having to draw-down funds from the Letter of
Credit) then each annually renewed or re-issued Letter of Credit
may be for an amount that is twenty percent (20%) less than the
amount of the immediately preceeding Letter of Credit; provided,
however, that in no event shall the amount of the Letter of Credit
be less than Seventy-Five Thousand Dollars ($75,000). Likewise, in
the event that the Account is funded, provided that no default by
Lessee with respect to a Monetary Obligation has occurred and is
continuing (or if not continuing has been cured by payment by
Lessee without Lessor having to draw-down funds from the Account)
then within thirty (30) days after each anniversary of the
Commencement Date, Lessor shall reduce the amount of money in the
Account by twenty percent (20%) and deliver such money to Lessee;
provided however, that in no event shall the amount of money in
the Account be less than Seventy Five Thousand Dollars ($75,000).
c. Upon a default by Lessee in the performance of any of its
obligations herein, including but not limited to the obligation to
pay Rent, Lessor may, but shall not be required to, draw-down on
the Letter of Credit or upon the Account, if applicable, (a) for
the payment of Rent or any other sum in default, (b) for the
payment of any other amount which Lessor may spend or become
obligated to spend by reason of Lessee's default, or (c) to
compensate Lessor for any other loss or damage which Lessor may
suffer by reason of Lessee's default, including without
limitation, costs and attorneys' fees incurred by Lessor to
recover possession of the Premises upon a default by Lessee
hereunder. Any draw-down by Lessor due to Lessee's default shall
not constitute the cure of any default by Lessee, the waiver of
such default, or any election by Lessor and Lessor may therefore
exercise all remedies granted Lessor hereunder. If any portion of
the Letter of Credit or the Account is drawn-down, Lessee shall
restore the amount of the Letter of Credit or Account, as the case
may be, to the sum required by this Article 16 and Lessee's
failure to do so shall constitute a separate default hereunder by
Lessee.
d. Lessee acknowledges that damages would be an inadequate remedy for
breach of Lessee's obligation to procure and maintain the Letter
of Credit, and that in the event Lessee defaults with respect to
such obligation, Lessor shall be entitled to obtain an order
specifically enforcing such obligation from any court of competent
jurisdiction.
e. If Lessor applies any part of said Security Deposit to cure any
default of Lessee, Lessee shall, on demand, deposit with Lessor
the amount so applied so that Lessor shall have the full Security
Deposit on hand at all times during the Term of this Lease. In the
event a bona fide sale, subject to this Lease, Lessor shall have
the right to transfer the Security Deposit to the vendee, and
Lessor shall be considered released by Lessee from all liability
for the return of the Security Deposit; and Lessee agrees to look
solely to the new lessor for the return of the Security Deposit,
and it is agreed that this shall apply to every transfer or
assignment made of the Security Deposit to the new lessor.
Provided this Lease is not in default, the Security Deposit (less
any portions thereof used, applied or retained by Lessor in
accordance with the provisions of this Article 16), shall be
returned to Lessee after the expiration or sooner termination of
this Lease and after delivery of the entire Premises to Lessor in
accordance with the provisions of this Lease. Lessee covenants
that it will not
16
assign or encumber or attempt to assign or encumber the Security
Deposit and Lessor shall not be bound by any such assignment,
encumbrance or attempt thereof.
f. In the event of the insolvency of Lessee, or in the event of the
entry of a judgement in any court against Lessee which is not
discharged within sixty (60) days after entry, or in the event a
petition is filed by or against Lessee under any chapter of the
bankruptcy laws of the Commonwealth of Pennsylvania or the United
States of America, then in such event, Lessor may require the
Lessee to deposit additional security in an amount which in
Lessor's sole judgement would be sufficient to adequately assure
Lessee's performance of all of its obligations under this Lease
including all payments subsequently accruing. Failure of Lessee to
deposit the security required by this Article 16 within ten (10)
days after Lessor's written demand shall constitute a material
breach of this Lease by Lessee.
17. RIGHT TO CURE LESSEE'S BREACH: If Lessee breaches any covenant or
condition of this Lease, Lessor may, on reasonable notice to Lessee
(except that no notice need be given in case of emergency), cure such
breach at the expense of Lessee and the reasonable amount of all
expenses, including reasonable attorney's fees, incurred by Lessor in
so doing (whether paid by Lessor or not) shall be deemed Additional
Rent payable on demand.
18. MECHANIC'S LIENS: Prior to Lessee or anyone on behalf of Lessee
performing any construction or other work to, on or about the Premises
for which a lien or claim could be filed against Lessor, the Premises,
the Building, the Office Building Area, or Lessor's interest therein,
Lessee shall have its general contractor execute a Waiver of Mechanic's
Liens in recordable form and otherwise in form satisfactory to Lessor
and provide Lessor with the original of the same for recording. In
addition, Lessee shall cause all contracts for construction and other
services to contain a general waiver of mechanics' liens.
Notwithstanding the foregoing, if any mechanics' or other lien or claim
shall be filed against Lessor, the Premises, the Building, the Office
Building Area, or Lessor's interest therein purporting to be for labor
or material furnished or to be furnished at the request of Lessee, then
Lessee shall, at its sole cost and expense cause same to be discharged
by payment, bond or otherwise within ten (10) days after the filing
thereof. If Lessee shall fail to cause same to be discharged of record
within such ten (10) day period, Lessor may cause same to be discharged
by payment, bond or otherwise, without investigation as to the validity
thereof or as to any counterclaims, offsets or defenses thereto, all at
the sole cost and expense of Lessee. Lessee shall defend, indemnify and
hold Lessor harmless against any and all claims, costs, damages,
liabilities and expenses (including reasonable attorneys' fees) which
may be brought or imposed against or incurred by Lessor by reason of
any such lien or claim or the discharge thereof.
19. RIGHT TO INSPECT AND REPAIR: Lessor may enter the Premises but shall
not be obligated to do so (except as required by any specific provision
of this Lease) at any reasonable time on reasonable notice to Lessee
(except that no notice need be given in case of emergency) for the
purpose of inspection or the making of such repairs, replacement or
additions in, to, on and about the Premises or the Building, as Lessor
deems necessary or desirable. Lessee shall have no claims or cause of
action against Lessor by reason thereof.
20. SERVICES TO BE PROVIDED BY LESSOR/LESSOR'S EXCULPATION: Subject to
intervening laws, ordinances, regulations and executive orders, while
Lessee is not in default under any of the provisions of this Lease,
Lessor agrees to furnish, except on holidays, as set forth on Exhibit E
attached hereto and made a part hereof:
a. The cleaning services, as set forth on Exhibit D attached hereto
and made a part hereof, and subject to the conditions therein
stated. Except as set forth on Exhibit D, Lessee shall pay the
cost of all other cleaning services required by Lessee.
b. Heating, ventilating and air conditioning (herein "HVAC") as
appropriate for the season (the electric energy cost to be paid by
Lessee as provided in Article 22), and as set forth on Exhibit
C-1, attached hereto and made a part hereof, together with Common
Facilities lighting and electric energy all during "Building
Hours", as hereinafter defined.
17
c. Cold and hot water for drinking and lavatory purposes.
d. Elevator service during Building Hours (if the Building contains
an elevator or elevators for the use of the occupants thereof).
e. Restroom supplies and exterior window cleaning when reasonably
required.
f. Notwithstanding the requirements of Exhibit C-1 (as to HVAC) or D
or any other provision of this Lease, Lessor shall not be liable
for failure to furnish any of the aforesaid services when such
failure is due to Force Majeure, as hereinafter defined. Lessor
shall not be liable, under any circumstances, including, but not
limited to, that arising from the negligence of Lessor, its
agents, servants or invitees, or from defects, errors or omissions
in the construction or design of the Premises and/or the Building,
including the structural and non-structural portions thereof, for
loss of or injury to Lessee or to property, however occurring,
through or in connection with or incidental to the furnishings of,
or failure to furnish, any of the aforesaid services or for any
interruption to Lessee's business, however occurring, except as to
the possible abatement of Rent as set forth in Article 21.
21. INTERRUPTION OF SERVICES OR USE: Interruption or curtailment of any
service maintained in the Building or at the Office Building Area, if
caused by Force Majeure, as hereinafter defined, shall not entitle
Lessee to any claim against Lessor or to any abatement in rent, and
shall not constitute a constructive or partial eviction, unless Lessor
fails to take measures as may be reasonable under the circumstances to
restore the service without undue delay. If the Premises are rendered
untenantable in whole or in part, for a period of ten (10) consecutive
business days, by the making of repairs, replacements or additions,
other than those made with Lessee's consent or caused by misuse or
neglect by Lessee, or Lessee's agents, servants, visitors or licensees,
there shall be a proportionate abatement of Rent from and after said
tenth (10th) consecutive business day and continuing for the period of
such untenantability. In no event, shall Lessee be entitled to claim a
constructive eviction from the Premises unless Lessee shall first have
notified Lessor in writing of the condition or conditions giving rise
thereto, and if the complaints be justified, unless Lessor shall have
failed, within a reasonable time after receipt of such notice, to
remedy, or commence and proceed with due diligence to remedy such
condition or conditions, all subject to Force Majeure as hereinafter
defined.
22. BUILDING STANDARD OFFICE ELECTRICAL SERVICE:
a. The cost of electric current which is supplied by the Lessor for
use by the Lessee in the Premises, including for heating or air
conditioning purposes, shall be reimbursed to the Lessor as
Additional Rent at terms, classification and rates normally
charged by the public utilities corporation serving that part of
the municipality where the subject Premises are located. Lessor
shall furnish (a) heat, ventilation and air conditioning
(including the labor, maintenance and equipment necessary to
provide the same), (b) electricity and other utilities needed to
operate such systems and (c) electricity for lighting and general
power for office use. Each of the foregoing to be paid for by
Lessee, to the extent that such utilities and/or services are not
separately chargeable to another occupant of the Building; and to
the extent that such utilities and/or services have not been
deemed by Lessor to be Operating Expenses, as follows:
1. Standard Usage; Business Hours. Lessee shall pay, as
Additional Rent its pro rata share (based upon Lessee's Pro
Rata Share, but subject to the last sentence of this
subparagraph) of the cost to the respective Building
(including applicable sales or use taxes) for the foregoing
services during "Business Hours" (as hereinafter defined) and
for "Building Standard Consumption" (as hereinafter defined).
Such payment shall be made by Lessee within thirty (30) days
after submission by Lessor of a statement to Lessee setting
forth the amount due. "Business Hours" shall mean Monday
through Friday from 8:30 a.m. to 6:00 p.m., Holidays (defined
below) excepted. New Year's Day, Memorial Day, Independence
Day, Labor Day, Thanksgiving, Christmas, or any day set aside
to celebrate such holidays are
18
"Holidays" under this Lease. "Building Standard Consumption"
shall mean the consumption necessary, in Lessor's reasonable
judgment, for use and comfortable occupancy of the Demised
Premises when occupied by the density of people for which the
building standard system was designed with occupants using
Standard Office Equipment. "Standard Office Equipment" shall
mean all office equipment normally found in an office
facility but shall not include computer and communication
systems (other than personal computers and fax machines in
numbers typical of standard office use), telephone switches
and conference or training rooms (or items similar thereto)
which require Additional Electric Equipment, as hereinafter
defined in Paragraph 22(e) below, or additional air
conditioning service or systems. In determining Lessee's pro
rata share for the foregoing services for any period, the
cost for the foregoing services shall be deemed for such
period to be an amount equal to the like expenses which
Lessor reasonably determines would normally be incurred had
the Building been fully occupied throughout such period.
2. Non-Standard Usage; After-Hours. Lessee shall pay, as
Additional Rent, the cost of supplying the Demised Premises
with the foregoing services at times outside of Business
Hours or in amounts in excess of Building Standard
Consumption, at such rates as Lessor shall specify from time
to time to cover all of the estimated costs and expenses
incurred by Lessor in connection with supplying the Demised
Premises with such service, including without limitation the
costs of labor and utilities associated with such service and
including applicable sales or use taxes thereon, such amounts
to be paid by Lessee within thirty (30) days after submission
by Lessor of a statement to Lessee setting forth the amount
due. With respect to heat, ventilation and air conditioning
required by Lessee outside of Business Hours, Lessee shall
notify Lessor at least 24 hours in advance when such
after-hours use is desired, except if such use is desired for
a weekend, in which event Lessee shall notify Lessor no later
than 10:00 a.m. on the Friday immediately preceding such
weekend.
3. Separate Metering; Survey. Lessor reserves the right, at
Lessee's sole cost, to determine Lessee's charge for
electrical usage by separate meter or electrical engineering
survey. If Lessor elects to install a submeter to measure
Lessee's electric service use and if such installation is not
required due to Lessee's excess consumption, as reasonably
determined by Lessor, then the cost of such submeter shall be
borne by Lessor. At any time after the installation of
separate metering for the Demised Premises (or any part
thereof), or the completion of such survey, Lessor shall
furnish to Lessee a statement setting forth the amount due
for Lessee's electric usage (or the part thereof that is so
metered or subject to such survey), and the total amount set
forth in such statement shall be due and payable by Lessee
within ten (10) days after submission to Lessee by Lessor of
such statement. In such case, Lessee shall pay for such
consumption based upon the average KWH rate paid by Lessor.
4. System Failure. Lessor shall not be responsible for any
failure or inadequacy of the air conditioning system if such
failure or inadequacy results from the occupancy of the
Demised Premises by persons in excess of the density
anticipated or for which the system was designed, or if
Lessee uses the Demised Premises in a manner for which it was
not designed, or if Lessee installs or operates machines,
appliances or equipment which exceed the maximum wattage per
square foot contemplated by, or generate more heat than
anticipated in, the design of the Demised Premises (as such
design standards may be established by Lessor).
5. Additional Electrical Equipment. Lessee will not install or
use electrically-operated equipment in excess of the design
capacity of the Demised Premises (as such design standards
may be established by Lessor) and Lessee will not install or
operate in the Demised Premises any
19
electrically-operated equipment or machinery other than that
commonly used in a normal office operation without first
obtaining the prior written consent of the Lessor. Lessor may
condition any consent required under this Paragraph 22(e)
upon the installation of separate meters (and transformers or
electrical panels) for such equipment or machinery at
Lessee's expense and the payment by Lessee of additional rent
as compensation for the additional consumption of electricity
occasioned by the operation of such additional equipment or
machinery, at the rates and in the manner set forth in
Paragraph 22(a) or (b) above.
6. Regulatory Compliance. The furnishing of the foregoing
heating, ventilation, air conditioning and electricity
services shall be subject to any statute, ordinance, rule,
regulation, resolution or recommendation for energy
conservation which may be promulgated by any governmental
agency or organization which Lessor shall be required to
comply with or which Lessor determines in good faith to
comply with.
b. In the event that there shall be an increase or decrease in the
rate schedule (including surcharges or demand adjustments), of the
public utility for the supply of Building Standard Office
Electrical Service, or the imposition of any tax with respect to
such service or increase in any such tax following the Lease
Term's commencement, the Additional Rent payable hereunder shall
be adjusted equitably to reflect the increase or decrease in rate
or imposition or increase in the aforesaid tax. All computations
shall be made on the basis of Lessee's surveyed usage as if a
meter exclusively measuring such usage to the Premises was in
place.
c. Lessee covenants that it shall notify Lessor immediately upon the
introduction of any office equipment or lighting different from
that on the Premises as of Lessor's electrical survey or in
addition to the aforesaid equipment or lighting on the Premises as
of said survey. The introduction of any new or different equipment
or lighting shall be cause for, at Lessor's election, a
resurveying of the Premises at Lessee's expense. Lessor reserves
the right to inspect the Premises to insure compliance with this
provision.
x. Xxxxxx shall not be liable in any way to Lessee for any loss,
damage or expense which Lessee may sustain or incur as a result of
any failure, defect or change in the quantity or character of
electrical energy available for redistribution to the Premises
pursuant to this Article 22 nor for any interruption in the
supply, and Lessee agrees that such supply may be interrupted for
inspection, repairs and replacement and in emergencies. In any
event, the full measure of Lessor's liability for any interruption
in the supply due to Lessor's acts or omissions shall be an
abatement of Fixed Basic Rent and Additional Rent, unless Lessor
fails to take such measures as may be reasonable under the
circumstances to restore such service without undue delay. In no
event shall Lessor be liable for any business interruption
suffered by Lessee.
x. Xxxxxx, at Lessee's expense, shall furnish and install all
replacement lighting tubes, lamps, ballasts and bulbs required in
the Premises. Lessee, however, shall have the right to furnish
and/or install any or all of the items mentioned in this Article
22(e).
f. Lessee's use of electrical service as contemplated herein shall be
during Building Hours, and any use in excess of said Building
Hours shall result in an adjustment as set forth in Article 22(a)
hereof to reflect such additional consumption.
23. ADDITIONAL RENT: It is expressly agreed that Lessee will pay in
addition to the Fixed Basic Rent provided in Article 3 hereof, an
Additional Rent to cover Lessee's Percentage as defined in the
Preamble, of the increased cost to Lessor, for each of the categories
enumerated herein, over the "Base Period Costs", as defined in the
Preamble for said categories.
a. OPERATING COST ESCALATION -- If the Operating Costs incurred for
the Building in which the Premises are located and Office Building
Area for any Lease Year or Partial Lease Year during the Lease
Term shall be greater than the Base Operating
20
Costs (adjusted proportionately for periods less than a Lease
Year), then Lessee shall pay to Lessor, as Additional Rent,
Lessee's Percentage of all such excess Operating Costs. Operating
Costs shall include, by way of illustration and not of limitation:
personal property taxes; management fees; labor, including all
wages and salaries; social security taxes, and other taxes which
may be levied against Lessor upon such wages and salaries;
supplies; repairs and maintenance; maintenance and service
contracts; painting; wall and window washing; laundry and towel
service; tools and equipment (which are not required to be
capitalized for federal income tax purposes); fire and other
insurance; trash removal; lawn care; snow removal and all other
items properly constituting direct operating costs according to
standard accounting practices relating to the Building or the
Office Building Area or both (hereinafter collectively referred to
as the "Operating Costs"), but not including depreciation of
Building or equipment; interest; income or excess profits taxes;
costs of maintaining the Lessor's corporate existence; franchise
taxes; any expenditures required to be capitalized for federal
income tax purposes, unless said expenditures are for the purpose
of reducing Operating Costs within the Building and Office
Building Area, or those which under generally applied real estate
practice are expensed or regarded as deferred expenses or are
required under any governmental or quasi-governmental law,
statute, ordinance, rule, order, requirements or regulation, in
which event the costs thereof shall be included. The Base
Operating Costs shall as be as defined in the Preamble.
b. COMMON AREA FUEL, UTILITIES AND ELECTRIC COST ESCALATION
(hereinafter referred to as "Utility and Energy Costs") -- If the
Utility and Energy Costs, including any fuel surcharges or
adjustments with respect thereto, incurred for water, sewer, gas,
electric, other utilities and heating, ventilating and air
conditioning for the Building, to include all leased and leasable
areas (not separately billed or metered within the Building) and
Common Facilities electric, lighting, water, sewer and other
utilities for the Building and Office Building Area, for any Lease
Year or Partial Lease Year, during the Term, shall be greater than
the Base Utility and Energy Costs (adjusted proportionately for
periods less than a Lease Year), then Lessee shall pay to Lessor
as Additional Rent, Lessee's Percentage as hereinafter defined, of
all such excess Utility and Energy Costs. As used in this Article
23, the Base Utility and Energy Costs shall be as defined in the
Preamble.
c. TAX ESCALATION -- If the Real Estate Taxes for the Building and
Office Building Area at which the Premises are located for any
Lease Year or Partial Lease Year, during the Lease Term, shall be
greater than the Base Real Estate Taxes (adjusted proportionately
for periods less than a Lease Year), then Lessee shall pay to
Lessor as Additional Rent, Lessee's Percentage as hereinafter
defined, of all such excess Real Estate Taxes.
As used in this Article 23(c), the words and terms which follow
mean and include the following:
i. "Base Real Estate Taxes" shall be as defined in the
Preamble.
ii. "Real Estate Taxes" shall mean the property taxes and
assessments imposed upon the Building and Office
Building Area, or upon the rent, as such, payable to the
Lessor, including, but not limited to, real estate,
city, county, village, school and transit taxes, or
taxes, assessments, or charges levied, imposed or
assessed against the Building and Office Building Area
by any other taxing authority, whether general or
specific, ordinary or extraordinary, foreseen or
unforeseen. If due to a future change in the method of
taxation, any franchise, income or profit tax shall be
levied against Lessor in substitution for, or in lieu
of, or in addition to, any tax which would otherwise
constitute a Real Estate Tax, such franchise, income or
profit tax shall be deemed to be a Real Estate Tax for
the purposes hereof; conversely, any additional real
estate tax hereafter imposed in substitution for, or in
lieu of, any franchise, income or profit tax (which is
not in substitution for, or in lieu of, or in addition
to, a Real Estate Tax as hereinbefore provided) shall
not be deemed a Real Estate Tax for the purposes hereof.
21
d. LEASE YEAR -- As used in this Article 23, Lease Year shall mean a
calendar year. Any portion of the Term which is less than a Lease
Year as hereinbefore defined, that is, from the Commencement Date
through the following December 31, and from the last January 1,
falling within the Term to the end of the Term, shall be deemed a
"Partial Lease Year". Any reference in this Lease to a Lease Year
shall, unless the context clearly indicates otherwise, be deemed
to be a reference to a Partial Lease Year if the period in
question involves a Partial Lease Year.
e. PAYMENT -- At any time, and from time to time, after the
establishment of the Base Period Costs for each of the categories
referred to above, Lessor shall advise Lessee in writing of
Lessee's Percentage share with respect to each of the categories
as estimated for the next twelve (12) month period (or
proportionate part thereof if the last period prior to the Lease's
expiration is less than twelve (12) months) as then known to the
Lessor, and thereafter, the Lessee shall pay as Additional Rent,
Lessee's Percentage share of these costs for the then current
period affected by such advice (as the same may be periodically
revised by Lessor as additional costs are incurred) in equal
monthly installments, such new rates being applied to any months,
for which the Fixed Basic Rent shall have already been paid which
are affected by the Operating Cost Escalation and/or Utility and
Energy Cost Escalation and/or Tax Escalation Costs above referred
to, as well as the unexpired months of the current period, the
adjustment for the then expired months to be made at the payment
of the next succeeding monthly rental, all subject to final
adjustment at the expiration of each Lease Year as defined in
Article 23(d) hereof (or Partial Lease Year if the last period
prior to the Lease's termination is less than twelve (12) months).
However, Lessor shall be reimbursed by Lessee monthly during the
first year of the Term for additional Utility and Energy Cost
Escalations resulting from an increase in the monthly rate over
the Base Utility Rate.
In the event the last period prior to the Lease's termination is
less than twelve (12) months, the Base Period Costs during said
period shall be proportionately reduced to correspond to the
duration of said final period.
f. BOOKS AND REPORTS -- For the protection of Lessee, Lessor shall
maintain books of account which shall be open to Lessee and its
representatives at all reasonable times so that Lessee can
determine that such Operating, Utility and Energy and Real Estate
Tax Costs have, in fact, been paid or incurred. Lessee's
representatives shall mean only (i) Lessee's employees and
attorneys or (ii) a Certified Public Accounting firm. At Lessor's
request, Lessee shall execute a confidentiality agreement
reasonably acceptable to Lessor prior to any examination of
Lessor's books and records. In the event Lessee disputes any one
or more of said charges, Lessee shall attempt to resolve such
dispute with Lessor, provided that if such dispute shall not be
satisfactorily settled between Lessor and Lessee, the dispute
shall be referred by either party to an independent certified
public accountant to be mutually agreed upon, and if such an
accountant cannot be agreed upon, The American Arbitration
Association may be asked by either party to select an arbitrator,
whose decision on the dispute will be final and binding upon both
parties, who shall jointly share any cost of such arbitration.
Pending resolution of said dispute the Lessee shall pay to Lessor
the sum so billed by Lessor subject to its ultimate resolution as
aforesaid.
g. RIGHT OF REVIEW -- Once Lessor shall have finally determined said
Operating, Utility and Energy or Real Estate Tax Costs at the
expiration of a Lease Year, then as to the item so established,
Lessee shall only be entitled to dispute said charge as finally
established for a period of six (6) months after such charge is
finally established, and Lessee specifically waives any right to
dispute any such charge at the expiration of said six (6) month
period.
h. OCCUPANCY ADJUSTMENT -- If, with respect to Operating Cost
Escalation, as established in Article 23(a) hereof, and Utility
and Energy Cost Escalation, as established in Article 23(b)
hereof, the Building is less than ninety percent (90%) occupied
during the establishment of the respective Base Periods, then the
Base Costs incurred with respect to said Operating Cost or Utility
and Energy Cost shall be adjusted during any such period within
the Base Period so as to reflect ninety
22
percent (90%) occupancy. Similarly, if during any Lease Year or
Partial Lease Year, subsequent to the Base Period the Building is
less than ninety percent (90%) occupied, then the actual costs
incurred for Operating Cost and Utility and Energy Cost shall be
increased during any such period to reflect ninety percent (90%)
occupancy so that at all times after the Base Period the Operating
Cost or Utility and Energy Cost shall be actual costs, but in the
event less than ninety percent (90%) of the Building is occupied
during all or part of the Lease Year involved, the Operating Cost
or Utility and Energy Cost shall not be less than that which would
have been incurred had ninety percent (90%) of the Building been
occupied. The aforesaid adjustment shall only be made with respect
to those items that are in fact affected by variations in
occupancy levels.
24. LESSEE'S ESTOPPEL: Lessee shall, from time to time, on not less that
ten (10) days prior written request by Lessor, execute, acknowledge and
deliver to Lessor a written statement certifying that the Lease is
unmodified and in full force and effect, or that the Lease is in full
force and effect as modified and listing the instruments of
modification; the dates to which the rents and charges have been paid;
and, to the best of Lessee's knowledge, whether or not Lessor is in
default hereunder, and if so, specifying the nature of the default. It
is intended that any such statement delivered pursuant to this Article
24 may be relied on by a prospective purchaser of Lessor's interest or
mortgagee of Lessor's interest or assignee of any mortgage of Lessor's
interest. Lessee shall also execute and deliver the form "Lessee
Estoppel Certificate" attached hereto as Exhibit F.
25. HOLDOVER TENANCY: Should Lessee continue to occupy the Demised Premises
after expiration of the Term of this Lease or any renewal or renewals
thereof, or after a forfeiture or other termination thereof, such
tenancy shall (without limitation on any of Lessor's rights or remedies
therefor) be one at sufferance from month to month at a minimum monthly
rent for the first month equal to one and one-half times and thereafter
equal to two times the Fixed Basic Rent and Additional Rent payable for
the last month of the term of this Lease for each month of such
occupancy. Lessee shall also pay all damages suffered or incurred by
Lessor as a result of or arising from such holdover tenancy.
26. RIGHT TO SHOW PREMISES: Lessor may show the Premises to prospective
purchasers and mortgagees; and to prospective tenants, during Building
Hours on reasonable notice to Lessee.
27. LESSOR'S WORK - LESSEE'S DRAWINGS:
a. Lessor agrees that, prior to the commencement of the Term of this
Lease, it will do substantially all of the work in the Premises in
accordance with Exhibit C attached hereto and made a part hereof.
Lessor will provide the Construction Allowance to complete The
Work (as defined in Exhibit C) pursuant to the terms and
conditions set forth in Exhibit C.
b. Lessee will supply such drawings and information, including
without limitation Construction Documents, to Lessor as set forth
in Exhibit C. Any delay occasioned by Lessee's failure to timely
supply such drawings and information shall not delay the
Commencement Date of the Term and Lessee's obligations hereunder,
and the same shall commence on the date the Premises would have
been delivered to Lessee pursuant to Article 2, but for Lessee's
delay.
c. Lease commencement shall occur and the Commencement Date is
defined as that date when Lessor has done substantially all of the
work to be done by Lessor in accordance with Exhibit C and, if
required by Tinicum Township, has obtained a certificate of
occupancy with respect to the Premises, unless Lessor has been
precluded from completing said work or obtaining such certificate
as a result of Lessee's acts or omissions or unless Lessee has
taken occupancy of the Premises. Occupancy by Lessee or the
delivery of a Certificate of Occupancy by Lessor (if required
pursuant to local law) shall be prima facie evidence that Lessor
has done substantially all of the work.
28. WAIVER OF TRIAL BY JURY: To the extent such waiver is permitted by law,
the parties
23
waive trial by jury in any action or proceeding brought in connection
with this Lease or the Premises.
29. LATE CHARGE: Anything in this Lease to the contrary notwithstanding, at
Lessor's option, Lessee shall pay a "Late Charge" of eight percent (8%)
of any installment of Fixed Basic Rent or Additional Rent paid more
than five (5) days after the due date thereof, to cover the extra
expense involved in handling delinquent payments, said Late Charge to
be considered Additional Rent. The amount of the Late Charge to be paid
by Lessee shall be reassessed and added to Lessee's obligations for
each successive monthly period until paid.
30. LESSEE'S INSURANCE:
a. Lessee covenants to provide at Lessee's cost and expense on or
before the earlier of (i) the Commencement Date, or (ii) Lessee's
taking actual possession for the purpose of completing any
improvement work, and to keep in full force and effect during the
entire Term and so long thereafter as Lessee, or anyone claiming
by, through or under Lessee, shall occupy the Premises, insurance
coverage as follows:
i. Commercial General Liability insurance with contractual
liability endorsements with respect to the Premises and
the business of Lessee in which Lessee shall be
adequately covered under limits of liability of not less
than FIVE MILLION AND 00/100 DOLLARS ($5,000,000)
combined single limit per occurrence for bodily or
personal injury (including death) and property damage.
Such insurance may be carried (x) under a blanket policy
covering the Premises and other locations of Lessee, if
any, provided that each such policy shall in all
respects comply with this Article and shall specify that
the portion of the total coverage of such policy that is
allocated to the Premises is in the amounts required
pursuant to this Article 30 and (y) under a primary
liability policy of not less than ONE MILLION AND 00/100
DOLLARS ($1,000,000) and the balance under an umbrella
policy. Notwithstanding anything to the contrary
contained in this Lease, the carrying of insurance by
Lessee in compliance with this Article 30 shall not
modify, reduce, limit or impair Lessee's obligations and
liability under Article 33 hereof.
ii. Fire and Extended Coverage, Vandalism, Malicious
Mischief, Sprinkler Leakage and Special Extended
Coverage Insurance in an amount adequate to cover the
cost of replacement of all personal property,
decoration, trade fixtures, furnishings, equipment in
the Premises and all contents therein. Lessor shall not
be liable for any damage to such property of Lessee by
fire or other peril includable in the coverage afforded
by the standard form of fire insurance policy with
extended coverage endorsement attached (whether or not
such coverage is in effect), no matter how caused, it
being understood that the Lessee will look solely to its
insurer for reimbursement.
iii. Workers' Compensation and Employer's Liability insurance
affording statutory coverage and containing statutory
limits with the Employer's Liability portion thereof to
have minimum limits of $1,000,000.00.
iv. Said limits shall be subject to periodic review and
Lessor reserves the right to increase said coverage
limits if, in the reasonable opinion of Lessor, said
coverage becomes inadequate and is less than that
commonly maintained by tenants in similar buildings in
the area by tenants making similar uses. On or before
the Commencement Date, and thereafter at Lessor's
request, Lessee shall provide Lessor evidence of the
insurance coverage required herein in the form of a
duplicate original insurance policy, an insurance binder
(countersigned by the insurer), or Evidence of Insurance
(in form XXXXX 27) for each of the insurance policies
Lessee is required to carry in compliance with its
obligations under this Lease which shall be delivered to
Lessor at least fifteen (15) days prior to the time such
insurance is first required to be carried by Lessee.
24
b. All of the aforesaid insurance shall (i) name Lessor as an
additional insured; (ii) be written by one or more responsible
insurance companies licensed in the Commonwealth of Pennsylvania
satisfactory to Lessor and in form satisfactory to Lessor; (iii)
contain endorsements substantially as follows: "It is understood
and agreed that the insurer will give to Lessor, or any successor
lessor, c/o Xxxx-Xxxx Realty Corporation, 00 Xxxxxxxx Xxxxx,
Xxxxxxxx, Xxx Xxxxxx, thirty (30) days prior written notice of any
material change in or cancellation of this policy."; (iv) shall be
written on an "occurrence" basis and not on a "claims made" basis.
c. Lessee shall be solely responsible for payment of premium and
Lessor (or its designee) shall not be required to pay any premium
for such insurance. Lessee shall deliver to Lessor at least
fifteen (15) days prior to the expiration of such policy, either a
duplicate original or a certificate it being the intention of the
parties hereto that the insurance required under the terms hereof
shall be continuous during the entire Term of this Lease and any
other period of time during which pursuant to the Term hereof,
said insurance is required. Any insurance carried by Lessee shall
be in excess of and will not contribute with the insurance carried
by Lessor for injuries or damage arising out of the Premises.
d. Lessee agrees, at its own cost and expense, to comply with all
rules and regulations of the National Fire Protection Association
(NFPA) National Fire Code. If, or from time to time, as a result
of or in connection with any failure by Lessee to comply with the
foregoing sentence or any act or omission or commission by Lessee,
its employees, agents, contractors or licensees, or a result of or
in connection with the use to which the Premises are put
(notwithstanding that such use may be for the purposes
hereinbefore permitted or that such use may have been consented to
by Lessor), the fire insurance rate(s) applicable to the Premises
shall be higher than that which would be applicable for a business
office legally permitted therein, Lessee agrees that it will pay
to Lessor as Additional Rent, such portion of the premiums for all
Lessor's fire insurance policies in force with respect to the
building and the contents of any occupant thereof as shall be
attributable to such higher rate(s).
x. Xxxxxx makes no representation that the limits of liability
specified to be carried by Lessee or Lessor under the terms of
this Lease are adequate to protect Lessee against Lessee's
undertaking under this Article 30, and in the event Lessee
believes that any such insurance coverage called for under this
Lease is insufficient, Lessee shall provide, at is own expense,
such additional insurance as Lessee deems adequate.
f. In the event the Premises or its contents are damaged or destroyed
by fire or other insured casualty, (i) Lessor, to the extent of
the coverage of Lessor's policies of fire insurance, hereby waives
its rights, if any, against Lessee with respect to such damage or
destruction, even if said fire or other casualty shall have been
caused, in whole or in part, by the negligence of Lessee, and (ii)
Lessee, to the extent of the coverage of Lessee's policies of fire
insurance with extended coverage, hereby waives its rights, if
any, against Lessor with respect to such damage, or destruction,
even if said fire or other casualty shall have been caused, in
whole or in part, by the negligence of Lessor; provided, however,
such waivers of subrogation shall only be effective with respect
to loss or damage occurring during such time as Lessor's or
Lessee's policies of fire insurance (as the case may be) shall
contain a clause or endorsement providing in substance that the
aforesaid waiver of subrogation shall not prejudice the type and
amount of coverage under such policies or the right of Lessor or
Lessee (as the case may be) to recover thereunder. If, at any
time, Lessor's or Lessee's insurance carrier refuses to write
insurance which contains a consent to the foregoing waiver of
subrogation, Lessor or Lessee, as the case may be, shall notify
the party thereof in writing, and upon the giving of such notice,
the provisions of this Section shall be null and void as to any
casualty which occurs after such notice. If Lessor's or Lessee's
insurance carrier shall make a charge for the incorporation of the
aforesaid waiver of subrogation in its policies, then the party
requesting the waiver shall promptly pay such charge to the other
party upon demand. In the event the party requesting their waiver
fails to pay such charge upon demand, the other party shall be
released of its obligation to supply such waiver.
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g. Should Lessee fail to maintain the insurance coverage as set forth
in this Article 30, then Lessee shall be in default hereunder and
shall be deemed to have breached its covenants as set forth
herein.
31. NO OTHER REPRESENTATIONS: No representations or promises shall be
binding on the parties hereto except those representations and promises
contained herein or in some future writing signed by the party making
such representation(s) or promise(s).
32. QUIET ENJOYMENT: Lessor covenants that if, and so long as, Lessee pays
Fixed Basic Rent, and any Additional Rent as herein provided, and
performs Lessee's covenants hereof, Lessor shall do nothing to affect
Lessee's right to peaceably and quietly have, hold and enjoy the
Premises for the Term herein mentioned, subject to the provisions of
this Lease.
33. INDEMNITY: Lessee shall defend, indemnify and save harmless Lessor and
its agents against and from; (a) any and all claims (i) arising from
(x) the conduct or management by Lessee, its subtenants, licensees, its
or their employees, agents, contractors or invitees on the Premises or
of any business therein, or (y) any work or thing whatsoever done, or
any condition created (other than by Lessor for Lessor's or Lessee's
account) in or about the Premises during the Term of this Lease, or
during the period of time, if any, prior to the Commencement Date that
Lessee may have been given access to the Premises, (z) any default by
Lessee under the terms, covenants and conditions of this Lease or (ii)
arising from any negligent or otherwise wrongful act or omission of
Lessee or any of its subtenants or licensees or its or their employees,
agents, contractors or invitees, and (b) all costs, expenses and
liabilities including reasonable attorneys fees and disbursements
incurred in or in connection with each such claim, action or proceeding
brought thereon. In case any action or proceeding be brought against
Lessor by reason of any such claim, Lessee, upon notice from Lessor,
shall resist and defend such action or proceeding.
34. ARTICLE HEADINGS: The article headings in this Lease and position of
its provisions are intended for convenience only and shall not be taken
into consideration in any construction or interpretation of this Lease
or any of its provisions. The Exhibits and Schedule referred to herein
and attached hereto are made a part of this Lease.
35. APPLICABILITY TO HEIRS AND ASSIGNS: The provisions of this Lease shall
apply to, bind and inure to the benefit of Lessor and Lessee, and their
respective heirs, successors, legal representatives and assigns. It is
understood that the term "Lessor" as used in this Lease means only the
owner, a mortgagee in possession or a term lessee of the Building, so
that in the event of any sale of the Building or of any lease thereof,
or if a mortgagee shall take possession of the Premises, the Lessor
herein shall be and hereby is entirely freed and relieved of all
covenants and obligations of Lessor hereunder accruing thereafter, and
it shall be deemed without further agreement that the purchaser, the
term lessee of the Building, or the mortgagee in possession has assumed
and agreed to carry out any and all covenants and obligations of Lessor
hereunder.
36. OUTSIDE PARKING SPACES: Lessee's occupancy of the Premises shall
include the use of the number of outside parking spaces as set forth in
the Preamble, all of which will be unassigned. Lessor shall not be
responsible for any damage or theft of any vehicle in the parking area
and shall not be required to keep parking spaces clear of unauthorized
vehicles or to otherwise supervise the use of the parking area. Lessee
shall, upon request, promptly furnish to Lessor the license numbers of
the cars operated by Lessee and its subtenants, licensees, invitees,
concessionaires, officers and employees. If any vehicle of the Lessee,
or of any subtenant, licensee, concessionaire, or of their respective
officers, agents or employees, is parked in any part of the Common
Facilities other than the employee parking area(s) designated therefor
by Lessor, Lessee shall pay to Lessor such penalty as may be fixed by
Lessor from time to time. All amounts due under the provisions of this
Article 36 shall be deemed to be Additional Rent.
37. LESSOR'S LIABILITY FOR LOSS OF PROPERTY: Lessor shall not be liable for
any loss of property from any cause whatsoever, including but not
limited to theft or burglary from the Premises, and any such loss
arising from the negligence of Lessor, its agents, servants or
invitees, or from defects, errors or omissions in the construction or
design of the Premises and/or the Building, including the structural
and non-structural portions thereof,
26
and Lessee covenants and agrees to make no claim for any such loss at
any time.
38. PARTIAL INVALIDITY: If any of the provisions of this Lease, or the
application thereof to any person or circumstances, shall to any
extent, be invalid or unenforceable, the remainder of this Lease, or
the application of such provision or provisions to persons or
circumstances other than those as to whom or which it is held invalid
or unenforceable, shall not be affected thereby, and every provision of
this Lease shall be valid and enforceable to the fullest extent
permitted by law.
39. LESSEE'S BROKER: Lessee represents and warrants to Lessor that the
Broker, as defined in the Preamble is the sole broker with whom Lessee
has negotiated in bringing about this Lease and Lessee agrees to
indemnify and hold Lessor and its mortgagee(s) harmless from any and
all claims of other brokers and expenses in connection therewith
arising out of or in connection with the negotiation of or the entering
into this Lease by Lessor and Lessee. Lessor shall be responsible for
any commission due to said Broker pursuant to a separate agreement
between Lessor and Broker. In no event shall Lessor's mortgagee(s) have
any obligation to any broker involved in this transaction. In the event
that no broker was involved as aforesaid, then Lessee represents and
warrants to the Lessor that no broker brought about this transaction,
and Lessee agrees to indemnify and hold Lessor harmless from any and
all claims of any broker arising out of or in connection with the
negotiations of, or entering into of, this Lease by Lessee and Lessor.
40. PERSONAL LIABILITY: Notwithstanding anything to the contrary provided
in this Lease, it is specifically understood and agreed, such agreement
being a primary consideration for the execution of this Lease by
Lessor, that there shall be absolutely no personal liability on the
part of Lessor, its constituent members (to include but not be limited
to, officers, directors, partners and trustees) their respective
successors, assigns or any mortgagee in possession (for the purposes of
this Article, collectively referred to as "Lessor"), with respect to
any of the terms, covenants and conditions of this Lease, and that
Lessee shall look solely to the equity of Lessor in the Building for
the satisfaction of each and every remedy of Lessee in the event of any
breach by Lessor of any of the terms, covenants and conditions of this
Lease to be performed by Lessor, such exculpation of liability to be
absolute and without any exceptions whatsoever.
41. NO OPTION: The submission of this Lease Agreement for examination does
not constitute a reservation of, or option for, the Premises, and this
Lease Agreement becomes effective as a Lease Agreement only upon
execution and delivery thereof by Lessor and Lessee.
42. DEFINITIONS:
a. AFFILIATE -- Affiliate shall mean any corporation related to
Lessee as a parent, subsidiary or brother-sister corporation so
that such corporation and such party and other corporations
constitute a controlled group as determined under Section 1563 of
the Internal Revenue Code of 1986, as amended and as elaborated by
the Treasury Regulations promulgated thereunder or any business
entity in which Lessee has more than a fifty percent (50%)
interest.
b. COMMON FACILITIES -- Common Facilities shall mean the non-assigned
parking areas; lobby; elevator(s); fire stairs; public hallways;
public lavatories; all other general Building facilities that
service all Building tenants; air conditioning rooms; fan rooms;
janitors' closets; electrical closets; telephone closets; elevator
shafts and machine rooms; flues; stacks; pipe shafts and vertical
ducts with their enclosing walls. Lessor may at any time close
temporarily any Common Facilities to make repairs or changes
therein or to effect construction, repairs or changes within the
Building, or to discourage non-tenant parking, and may do such
other acts in and to the Common Facilities as in its judgement may
be desirable to improve the convenience thereof, but shall always
in connection therewith, endeavor to minimize any inconvenience to
Lessee.
c. FORCE MAJEURE -- Force Majeure shall mean and include those
situations beyond Lessor's reasonable control, including by way of
example and not by way of limitation, acts of God; accidents;
repairs; strikes; shortages of labor, supplies or
27
materials; inclement weather; or, where applicable, the passage of
time while waiting for an adjustment or insurance proceeds. Any
time limits required to be met by either party hereunder, whether
specifically made subject to Force Majeure or not, except those
related to the payment of Fixed Basic Rent or Additional Rent,
shall, unless specifically stated to the contrary elsewhere in
this Lease, be automatically extended by the number of days by
which any performance called for is delayed due to Force Majeure.
d. LESSEE'S PERCENTAGE -- The parties agree that Lessee's Percentage,
as defined in the Preamble, reflects and will be continually
adjusted to reflect the ratio of the gross square feet of the area
rented to Lessee (including an allocable share of all Common
Facilities) [the numerator] as compared with the total number of
gross square feet of the entire Building (or additional buildings
that may be constructed within the Office Building Area) [the
denominator] measured outside wall to outside wall, but excluding
therefrom any storage areas. Lessor shall have the right to make
changes or revisions in the Common Facilities of the Building so
as to provide additional leasing area. Lessor shall also have the
right to construct additional buildings in the Office Building
Area for such purposes as Lessor may deem appropriate, and
subdivide the lands for that purpose if necessary, and upon so
doing, the Office Building Area shall become the subdivided lot on
which the Building in which the Premises is located. However, if
any service provided for in Article 23(a) or any utility provided
for in Article 23(b) is separately billed or separately metered
within the Building, then the square footage so billed or metered
shall be subtracted from the denominator and the Lessee's
proportionate share for such service and/or utility shall be
separately computed, and the Base Costs for such item shall not
include any charges attributable to said square footage. Lessee
understands that as a result of changes in the layout of the
Common Facilities from time to time occurring due to, by way of
example and not by way of limitation, the rearrangement of
corridors, the aggregate of all Building tenant proportionate
shares may be equal to, less than or greater than one hundred
percent (100%).
43. LEASE COMMENCEMENT: Notwithstanding anything contained herein to the
contrary, if Lessor, for any reason whatsoever, including Lessor's
negligence except as provided for in Article 27(b), cannot deliver
possession of the Premises, as provided for in Article 27(a), to Lessee
at the commencement of the agreed Term as set forth in Article 2, this
Lease shall not be void or voidable, nor shall Lessor be liable to
Lessee for any loss or damage resulting therefrom, but in that event,
the Term shall be for the full term as specified above to commence from
and after the date Lessor shall have delivered possession of the
Premises to Lessee or from the date Lessor would have delivered
possession of the Premises to Lessee but for Lessee's failure to timely
supply to Lessor such drawings and/or information required by Exhibit C
or for any other reason attributable to Lessee (herein the
"Commencement Date") and to expire midnight of the last day of the
month that is ninety (90) months after the month in which the
Commencement Date occurs, and if requested by Lessor, Lessor and Lessee
shall, ratify and confirm said Commencement and Expiration Dates by
completing and signing Exhibit G attached hereto and made a part
hereof.
44. NOTICES: Any notice by either party to the other shall be in writing
and shall be deemed to have been duly given only if (i) delivered
personally or (ii) sent by registered mail or certified mail return
receipt requested in a postage paid envelope addressed or (iii) sent by
nationally recognized overnight delivery service, if to Lessee, at the
above described Building; if to Lessor, at Lessor's address as set
forth above; or, to either at such other address as Lessee or Lessor,
respectively, may designate in writing. Notice shall be deemed to have
been duly given, if delivered personally, on delivery thereof, if
mailed, upon the tenth (10th) day after the mailing thereof or if sent
by overnight delivery service, the next business day.
28
45. ACCORD AND SATISFACTION: No payment by Lessee or receipt by Lessor of a
lesser amount than the rent and additional charges payable hereunder
shall be deemed to be other than a payment on account of the earliest
stipulated Fixed Basic Rent and Additional Rent, nor shall any
endorsement or statement on any check or any letter accompanying any
check or payment for Fixed Basic Rent or Additional Rent be deemed an
accord and satisfaction, and Lessor may accept such check or payment
without prejudice to Lessor's right to recover the balance of such
Fixed Basic Rent and Additional Rent or pursue any other remedy
provided herein or by law.
46. EFFECT OF WAIVERS: No failure by Lessor to insist upon the strict
performance of any covenant, agreement, term or condition of this
Lease, or to exercise any right or remedy consequent upon a breach
thereof, and no acceptance of full or partial rent during the
continuance of any such breach, shall constitute a waiver of any such
breach or of such covenant, agreement, term or condition. No consent,
or waiver, express or implied, by Lessor to or of any breach of any
covenant, condition or duty of Lessee shall be construed as a consent
or waiver to or of any other breach of the same or any other covenant,
condition or duty, unless in writing signed by Lessor.
47. LEASE CONDITION: This Lease is expressly conditioned upon Lessor
receiving the consent and approval of Lessor's mortgagee to its term
and provisions not later than thirty (30) days after its execution by
Lessee, and delivery to Lessor. Should said consent not be received
within the aforesaid time period, Lessor may, at Lessor's sole option,
cancel this Lease and return the first month's Fixed Basic Rent and
Security Deposit to Lessee, which Lessee has deposited with Lessor upon
execution of this Lease, and thereafter the parties shall have no
further obligations to each other with respect to this Lease.
48. MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE: Lessee agrees to give any
mortgagees and/or trust deed holders, by registered mail, a copy of any
notice of default served upon Lessor, provided that, prior to such
notice, Lessee has been notified in writing (by way of notice of
assignment of rents and leases or otherwise) of the address of such
mortgagees and/or trust deed holders. Lessee further agrees that, if
Lessor shall have failed to cure such default within the time provided
for in this Lease, then the mortgagees and/or trust deed holders shall
have an additional thirty (30) days within which to cure such default,
or if such default cannot be cured within that time, then such
additional time as may be necessary, if within such thirty (30) days,
any mortgagee and/or trust deed holder has commenced and is diligently
pursuing the remedies necessary to cure such default (including but not
limited to commencement of foreclosure proceedings if necessary to
effect such cure), in which event this Lease shall not be terminated
while such remedies are being so diligently pursued.
49. LESSOR'S RESERVED RIGHT: Lessor and Lessee acknowledge that the
Premises are in a Building which is not open to the general public.
Access to the Building is restricted to Lessor, Lessee, their agents,
employees and contractors and to their invited visitors. In the event
of a labor dispute including a strike, picketing, informational or
associational activities directed at Lessee or any other tenant, Lessor
reserves the right unilaterally to alter Lessee's ingress and egress to
the Building or make any change in operating conditions to restrict
pedestrian, vehicular or delivery ingress and egress to a particular
location.
50. CORPORATE AUTHORITY: If Lessee is a corporation, Lessee represents and
warrants that this Lease has been duly authorized and approved by the
corporation's Board of Direc tors. The undersigned officers and
representatives of the corporation represent and warrant that they are
officers of the corporation with authority to execute this Lease on
behalf of the corporation, and within fifteen (15) days of execution
hereof, Lessee will provide Lessor with a corporate resolution
confirming the aforesaid.
51. INTENTIONALLY DELETED.
52. LESSEE'S RELOCATION: The Lessor, in its sole discretion, shall have the
right following receipt of a Renewal Notice to change the location of
the Premises to other space (the "Substituted Leased Premises") within
the Airport Business Center, subject Lessee's right to reject such
relocation as provided in Section 2.f. above and to the terms and
conditions set forth below.
29
a. The Substituted Leased Premises shall contain a minimum floor area
of approximately the same number of square feet as are contained
in the Premises; and the square footage of any Common Facilities
attributable to the Substituted Leased Premises shall be
approximately the same as that of the Common Facilities
attributable to the Premises.
b. If the total square footage comprised by the Substituted Leased
Premises and its attributable Common Facilities exceed the total
of the Premises and its attributable Common Facilities, the Lessee
shall not be required to pay any increase in the Fixed Basic Rent
and Lessee's Percentage shall not be increased. If, however, such
total square footage shall be less, Lessee's Fixed Basic Rent and
Lessee's Percentage shall be decreased proportionately.
c. Lessee agrees that it shall relocate to the Substituted Leased
Premises no later than the date designated by Lessor in Lessor's
Notice, which date shall not be sooner than forty-five (45) days
after the date of Lessor's Notice.
d. The Lessor shall bear and pay for the cost and expense of any such
relocation; provided, however, that the Lessee shall not be
entitled to any compensation for damages for any interference with
or interruption of its business during or resulting from such
relocation. The Lessor shall make reasonable efforts to minimize
such interference.
e. In connection with any such relocation, the Lessor shall, at its
own cost and expense, furnish and install in (or, if practicable,
relocate to) the Substituted Leased Premises all walls,
partitions, floors, floor coverings, ceilings, fixtures, wiring
and plumbing, if any, (as distinguished from trade fixtures,
equipment, furniture, furnishings and other personal property
belonging to Lessee) required for the Lessee's proper use and
occupancy thereof, all of which items shall be comparable in
quality to those situated in the Premises.
f. The payments of new monthly minimum rent shall commence on the
earlier of ten (10) days after Lessor has completed the physical
relocation and installation of permanent improvements in the
Substituted Leased Premises or the date that Lessee first opens
for business in the Substituted Leased Premises.
x. Xxxxxx and Lessee shall promptly execute an amendment to this
Lease reciting the relocation of the Premises and any changes in
the monthly minimum rent payable hereunder.
53. BUILDING PERMIT: This Lease is expressly conditioned upon Lessor
obtaining a building permit from the appropriate government official
for Lessee's Premises. Lessor hereby agrees to make application to said
government official within five (5) days following the execution of the
construction drawings for the Premises. As used herein, construction
drawings shall mean the final plans and specifications required
pursuant to Article 27(b).
54. INTENTIONALLY OMITTED.
55. USE AND OCCUPANCY TAX AND MISCELLANEOUS TAXES: Lessee shall pay
prior to delinquency all taxes (or its equivalent) assessed against or
levied or imposed upon its use and occupancy of the Premises or upon
the fixtures, furnishings, equipment and all other personal property of
Lessee located in the Premises and when possible Lessee shall cause
said fixtures, furnishings, equipment and all other personal property
to be assessed and billed separately from the property of Lessor. In
the event any or all of Lessee's fixtures, furnishings, equipment and
all other personal property or its occupancy of the Premises shall be
assessed and taxed with the property of Lessor, Lessee shall pay to
Lessor its share of such taxes within twenty (20) days after delivery
to Lessee by Lessor of a statement in writing setting forth the amount
of such taxes applicable to Lessee's fixtures, furnishings, equipment,
personal property or occupancy. If, during the Term of this Lease or
any renewal or extension thereof, any tax is imposed upon the privilege
of renting or occupying the Premises or upon the amount of rentals
collected therefor, Lessee will pay each month, as Additional Rent, a
sum equal to such tax or charge that is imposed for such month, but
nothing herein shall be taken to require Lessee to pay any income,
estate, inheritance or franchise tax imposed upon Lessor except to the
extent required by Article 23 hereof. In
30
addition, Lessee will pay as additional rent, all school district
business use and occupancy tax applicable to Lessee and the Premises
(if any) within the time set forth in any xxxx rendered by the taxing
authority having such authority, or Lessor for said tax. Lessor shall
have the same rights and remedies for the non-payment of such use and
occupancy tax, or any other item hereunder, that it has upon Lessee's
failure to pay rent hereunder.
56. APPRAISAL, FAIR MARKET VALUE.
a. If Lessee, in good faith, determines that a Fair Market Rental
Rate (as defined in Section 56.b below as determined by Lessor as
otherwise provided in this Lease is not acceptable to Lessee,
Lessee may invoke an appraisal procedure by written notice to
Lessor within ten (10) days after Lessee's receipt of Lessor's
determination of the Fair Market Rental Rate. If no such written
notice is given by Lessee within such time, Lessee shall have no
further right to appraisal and shall be obligated to pay the rate
as determined by Lessor. Lessor and Lessee, within ten (10)
business days after the appraisal procedure is invoked, shall each
simultaneously submit to the other its good faith estimate of the
Fair Market Rental Rate. If the higher of said estimate is not
more than one hundred five percent (105%) of the lower of such
estimates, the Fair Market Rental Rate in question shall be deemed
to be the average of the submitted rates. If otherwise, then the
dispute shall be settled by arbitration to be held in
Philadelphia, Pennsylvania in accordance with the Real Estate
Valuation Arbitration Rules of the American Arbitration
Association, except that the arbitration shall be on the basis
that the arbitrators will pick one of the two rates submitted,
being the rate which is closer to the Fair Market Rental Rate as
determined by the arbitrators using the definitions set forth in
Section 56.b. The parties agree to be bound by the decision of the
arbitrators and shall share equally the costs of arbitration, and
judgment upon the award rendered by the arbitrators may be entered
in any court having jurisdiction thereof.
b. The phrase "Fair Market Rental Rate" as used herein shall mean the
fair market value annual rental rate for which Lessor, at or about
the time that such fair market value rent rate is to be first set
by Lessor, has entered into a lease or leases with other
comparable tenants (excluding existing tenants with options to
expand or renew at predetermined or fixed rental rates or pursuant
to a definition of fair market value rental rate which is not
comparable or equivalent to the definition of Fair Market Rental
Rate set forth herein and also excluding existing tenants who take
additional space without the benefit of an expansion option, but
including new tenants without such options who, by subsequent
agreement with Landlord, expand or renew their premises at a rent
determined pursuant to a definition of fair market value rental
rate which is comparable space in the Building or in the Airport
Business Center (the "Project"), as the case may be, at the time
that such Fair Market Value rental rate is first set by Lessor
under the applicable provisions of this Lease, or would obtain
from any prospective tenant for any general office use of such
space, as such space is then improved. The Fair Market Rental Rate
shall take into account the value of any rent or equivalent
economic concessions (the "Concessions") then offered in
connection with the leasing of such comparable space in the
Building or the Project. The Fair Market Rental Rate shall also
take into account that (i) a lessee may lease the Premises on an
"as-is" basis without Lessor granting Concessions such as lessee
improvement allowances; (ii) the Premises, in their then existing
condition, may be partially suitable to a lessee, without the
necessity of additional improvements or the granting of any
concession such as lessee improvement allowances; (iii) the
Premises, in their then existing condition, may exceed the quality
of available space in the marketplace for the operation of
Lessee's business, and (iv) the improvements in the Premises, in
their then existing condition, may need to be demolished and
rebuilt to be suitable for use by Lessee. For purposes of this
Section 56.b on a renewal of the Term hereof, all of the Premise
shall be deemed to be satisfactory to Lessee and suitable for the
conduct of Lessee's business, except to the extent such space may
need to be refurbished.
57. RIGHT OF FIRST OFFER.
a. Upon any space on the second floor of the Building becoming
available ("Available Space"), Lessor shall provide to Lessee
notice thereof ("Availability Notice"). Space shall be "available"
only to the extent it is not subject to expansion, extension,
first
31
offer, first refusal and any other rights of other tenants in the
Building or Project. Lessee acknowledges that, among others,
Keystone Mercy Health Plan has a right of first offer for any
available space on the second floor of the Building. Provided that
at least three (3) years remain on the initial Term of this Lease,
and provided that Lessee is not in default with respect to this
Lease, Lessee shall have a one-time first right to lease the
Available Space (in its entirety), on the terms and conditions
described in this Article 57 and otherwise consistent with this
Lease, which is exercisable by written notice to Lessor within ten
(10) business days after Lessee's receipt of the Availability
Notice. Any such Available Space shall be leased to Lessee on an
"as is" basis, for a term coterminous with the balance of the Term
remaining on the Premises (or such shorter term as may be
necessary to prevent any conflict with any other lessees' rights
to such space) and at a rental rate equal to the Fair Market
Rental Rate provided, however, Lessee's exercise of the first
right described in this Article 57 shall be final with respect to
the lease by Lessee of such Available Space, and Lessee hereby
agrees that any dispute between Lessor and Lessee concerning the
determination by Lessor of the rental rate for such Available
Space shall be submitted to arbitration pursuant to Section 56.1.
b. In the event Lessee does not timely elect to lease the Available
Space then Lessor may lease the Available Space and any further
available space in the Building to any third party and Lessee
shall have no right of first offer with respect thereto. Likewise,
if Lessee timely elects to lease the Available Space, Lessee shall
have no right of first offer to lease any subsequent available
space in the Building.
c. As of the date that Lessor delivers actual possession to Lessee of
the Available Space leased by Lessee, such Available Space shall
become part of the Premises and, except as otherwise provided in
this Article 57, shall be leased upon the same terms and
conditions (other than as to Fixed Basic Rent, which will be
governed by subsection (a) above and Section 56) and Additional
Rent which shall increase in accordance with the increase in
Lessee's Percentage.
d. The first right to lease the Available Space set forth in this
Article 57 is personal to Lessee and may not be assigned,
transferred or conveyed to any party, unless the Lease is assigned
in its entirety in accordance with the terms hereof.
58. ARBITRATION.
a. Whenever in this lease it is provided that a dispute shall be
resolved by arbitration, the arbitration shall be conducted in
Philadelphia, Pennsylvania, as provide din this Article 58. The
party desiring such arbitration shall give written notice thereof
to the other specifying the dispute to the arbitrated. Within
twenty (20) days after the date on which the arbitration procedure
is invoked as provided in this Lease, each party shall appoint an
experienced arbitrator and notify the other party of the
arbitrator's name and address. For purposes of this Article 58, an
"experienced arbitrator" shall be an individual unrelated to any
party hereto who possesses at least ten (10) years experience in
the development, management or leasing of first class office space
in complex real estate transactions in the Philadelphia
metropolitan area, and who has at no time ever represented or
acted on behalf of any of the parties. The party who selects the
experienced arbitrator may not consult with such experienced
arbitrator, directly or indirectly, to determine such experienced
arbitrator's position on the issue which is the subject of the
dispute. If the party fails to so appoint an experienced
arbitrator and notify the other party of such arbitrator's name
and address, an arbitrator shall be appointed pursuant to the same
procedure that is followed when agreement cannot be reached as to
the third arbitrator. Within ten (10) days after the appointment
of the second experienced arbitrator and notice to the other part
of such arbitrator's name and address, the two arbitrators so
appointed shall notify both parties of the third arbitrator's name
and address. If the three arbitrators to be so appointed are not
appointed within thirty (30) days after the date the arbitration
procedure is invoked as provided in this Lease, then the
arbitrator or arbitrators, if any, who have been selected shall
proceed to carry out the arbitration. The arbitrator or
arbitrators so selected shall furnished Lessor and Lessee with a
written decision within thirty (30) days after the date of
selection of the last of the arbitrators to be so selected. Any
decision so submitted shall be signed by a majority of the
arbitrators,
32
if more than two have been selected. If only two arbitrators have
been selected and they are unable to agree, then either Lessor or
Lessee shall be entitled to apply to the President Judge of the
Court of Common Pleas of Delaware County, Pennsylvania for the
selection of a third arbitration who shall be selected from a list
of names of experienced arbitrators submitted by Lessor or from a
list of names submitted by Lessee, as the case may be, unless both
Lessor and Lessee submits lists of names, in which case the Court,
in its sole discretion, shall select the third arbitrator from the
lists. In the event of any subsequent vacancies or inabilities to
perform among the arbitrators appointed, the arbitrator or
arbitrators involved shall be replaced in accordance with the
provisions of this Article 58 as if such replacement was an
initial appointment to be made under this Article 58 within the
time constraints set forth in this Article 58, measured from the
date of notice of such vacancy or inability to the person or
persons required to make such appointment, with all the attendant
consequences of failure to act timely if such appointment person
is the party hereto. In designating arbitrators and in deciding
the dispute, the arbitrators shall utilize their utmost skill and
act diligently in accordance with the Commercial Rules of
Arbitration then in force of the American Arbitration Association,
subject, however, to such limitations as may be placed upon them
by the provisions of this lease.
b. The arbitrators appointed pursuant to this Article 58 shall (i)
determine the Fair Market Rental Rate as provided in the Lease,
and (ii) fix and establish any and all rules as it shall consider
appropriate in their sole and absolute discretion to govern the
proceedings before it, including any and all rules of discovery,
procedure and/or evidence.
c. The decision of the arbitrators shall be final and bindings, may
be confirmed and entered by any court of competent jurisdiction at
the request of any party and may not be appealed to any court of
competent jurisdiction or otherwise except upon a claim of fraud
on the part of the arbitrators, or on the basis of a mistake as to
the applicable law.
d. The obligations of Lessor and Lessee to submit a dispute to
arbitration is limited to disputes arising under those articles of
this Lease which specifically provide for arbitration. Neither
party shall be in default hereunder with respect to any provision
hereof during the time period commencing as of the initial notice
of desire to arbitrate and ending on the date of resolution by the
arbitrators; provided, however, that during said period each party
shall continue to make all payments of money required by this
Lease and shall otherwise perform all duties and obligations
required to be performed by such party under this Lease and, with
respect to the issue under arbitration, shall maintain the status
quo.
EACH PARTY AGREES that it will not raise or assert as a defense to any
obligation under the Lease or this Agreement or make any claim that the Lease or
this Agreement is invalid or unenforceable due to any failure of this document
to comply with ministerial requirements including, but not limited to,
requirements for corporate seals, attestations, witnesses, notarizations, or
other similar requirements, and each party hereby waives the right to assert any
such defense or make any claim of invalidity or unenforceability due to any of
the foregoing.
THE UNDERSIGNED LESSEE ACKNOWLEDGES THAT IT FULLY UNDERSTANDS THE
CONFESSIONS OF JUDGMENT CONTAINED IN ARTICLE 14 HEREOF AND THAT THE
LESSOR-LESSEE RELATIONSHIP CREATED HEREBY IS COMMERCIAL IN NATURE AND THAT THE
UNDERSIGNED WAIVES ANY RIGHT TO A HEARING WHICH WOULD OTHERWISE BE A CONDITION
TO LESSOR'S OBTAINING THE JUDGMENTS AUTHORIZED BY ARTICLE 14.
THE UNDERSIGNED LESSEE FURTHER ACKNOWLEDGES AND UNDERSTANDS THAT LESSEE
HAS WAIVED ITS RIGHT TO A TRIAL BY JURY.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals the day and year first above written.
LESSOR: LESSEE:
33
CALI AIRPORT REALTY BLUESTONE SOFTWARE, INC.
ASSOCIATES, L.P.
By: Xxxx-Xxxx Sub XVIII, Inc.,
General Managing Partner
By: /s/ Xxxx Xxx Xxxxxxxx By: /s/ Xxxxx Xxxx
-------------------------------------- -----------------------
Xxxx Xxx Xxxxxxxx Xxxxx Xxxx
Vice President, Leasing - NJ/PA Region Chief Financial Officer
34
EXHIBIT A
LOCATION OF PREMISES
[Graphic, two pages; A not to scale aerial view of the premises]
35
EXHIBIT X-0
XXXXXX XXXXXXXX XXXX
PREMISES "3"
ALL THAT CERTAIN lot or piece of ground with the buildings and improvements
thereon erected, Situate in the Township of Tinicum, County of Delaware, State
of Pennsylvania, as shown on an ALTA/ACSM Land Title Survey Plan for Airport
Business Center (Lot 3 Parcel 2), prepared by Brandywine Valley Engineers, Inc.,
Consulting Engineers and Land Surveyors, dated November 18, 1996, last revised
December 16, 1996, and being bounded and described as follows:
BEGINNING at a point in the Northwesterly side of Governor Xxxxxx Boulevard
(westbound - L.R. 762) (S.R. 0291) (various widths) said point being measured
along same the following eight (8) courses and distances from a point of
intersection of said side of Governor Xxxxxx Boulevard (60 feet wide) with the
Northeasterly side of Fourth Avenue (60 feet wide): (1) along said side of
Xxxxxxxx Xxxxxx Xxxxxxxxx Xxxxx 00 degrees 19 minutes 37 seconds East 685.12
feet to a point; (2) North 26 degrees 40 minutes 23 seconds West 25.00 feet to a
point; (3) North 63 degrees 19 minutes 37 seconds East 124.98 feet to a point of
curvature; (4) along the arc of a circle curving to the right in a
Northeastwardly direction having a radius of 5784.58 feet an arc distance of
544.20 feet (chord North 66 degrees 01 minute 20 seconds East 544.00 feet) to a
point; (5) South 21 degrees 16 minutes 58 seconds East 5.00 feet to a point; (6)
along the arc of a circle curving to the right in a Northeastwardly direction
having a radius of 5779.58 feet an arc distance of 275.02 feet (chord North 70
degrees 04 minutes 50 seconds East 275.00 feet) to a point; (7) North 27 degrees
36 minutes 51 seconds West 25.26 feet to a point; (8) North 52 degrees 14
minutes 28 seconds East 81.37 feet to the point of beginning; thence from said
beginning point and along the Northeasterly side of Xxxxxxx Drive the following
two (2) courses and distances: (1) North 32 degrees 16 minutes 00 seconds West
41.25 feet to a point of curvature and (2) along the arc of a circle curving to
the left in a Northwestwardly direction having a radius of 175.00 feet an arc
distance of 198.53 feet (chord North 64 degrees 46 minutes 00 seconds West
188.05 feet) to a point of tangency; thence leaving the same North 22 degrees 44
minutes 00 seconds East 457.57 feet to a point in the southeasterly right of way
line for limited access for Interstate 95 (S.R. 0095); thence along said limited
access right of way the following three (3) courses and distances: (1) South 70
degrees 45 minutes 32 seconds East 481.67 feet to a point; (2) South 03 degrees
38 minutes 14 seconds West 40.01 feet to a point; (3) South 52 degrees 14
minutes 28 seconds West 552.65 feet to the first mentioned point and place of
beginning.
BEING Lot #3 on said Plan and containing an area of 4.0022 acres more or less.
BEING Folio No. 45-00-00504-03.
BEING commonly known as 000 Xxxxxxx Xxxxx.
36
EXHIBIT B
RULES AND REGULATIONS
1. OBSTRUCTION OF PASSAGEWAYS: The sidewalks, entrance, passages, courts,
elevators, vestibules, stairways, corridors and public parts of the
Building shall not be obstructed or encumbered by Lessee or used by
Lessee for any purpose other than ingress and egress. If the Premises
are situated on the ground floor with direct access to the street, then
Lessor shall, at Lessor's expense, keep the sidewalks and curbs
directly in front of the Premises clean and free from ice, snow and
refuse.
2. WINDOWS: Windows in the Premises shall not be covered or obstructed by
Lessee. No bottles, parcels or other articles shall be placed on the
windowsills, in the halls, or in any other part of the Building other
than the Premises. No article shall be thrown out of the doors or
windows of the Premises.
3. PROJECTIONS FROM BUILDING: No awnings, air-conditioning units, or other
fixtures shall be attached to the outside walls or the window xxxxx of
the Building or otherwise affixed so as to project from the Building,
without prior written consent of Lessor.
4. SIGNS: No sign or lettering shall be affixed by Lessee to any part of
the outside of the Premises, or any part of the inside of the Premises
so as to be clearly visible from the outside of the Premises, without
the prior written consent of Lessor. However, Lessee shall have the
right to place its name on any door leading into the Premises the size,
color and style thereof to be subject to the Lessor's approval. Lessee
shall not have the right to have additional names placed on the
Building directory without Lessor's prior written consent.
5. FLOOR COVERING: Lessee shall not lay linoleum or other similar floor
covering so that the same shall come in direct contact with the floor
of the Premises. If linoleum or other similar floor covering is desired
to be used, an interlining of builder's deadening felt shall first be
fixed to the floor by a paste or other material that may easily be
removed with water, the use of cement or other similar adhesive
material being expressly prohibited.
6. INTERFERENCE WITH OCCUPANTS OF BUILDING: Lessee shall not make, or
permit to be made, any unseemly or disturbing noises or odors and shall
not interfere with other tenants or those having business with them.
Lessee will keep all mechanical apparatus in the Premises free of
vibration and noise which may be transmitted beyond the limits of the
Premises.
7. LOCK KEYS: No additional locks or bolts of any kind shall be placed on
any of the doors or windows by Lessee. Lessee shall, on the termination
of Lessee's tenancy, deliver to Lessor all keys to any space within the
Building either furnished to or otherwise procured by Lessee, and in
the event of the loss of any keys furnished, Lessee shall pay to Lessor
the cost thereof. Lessee, before closing and leaving the Premises,
shall ensure that all windows are closed and entrance doors locked.
Nothing in this Paragraph 7 shall be deemed to prohibit Lessee from
installing a burglar alarm within the Premises, provided: (1) Lessee
obtains Lessor's consent which will not be unreasonably withheld or
delayed; (2) Lessee supplies Lessor with copies of the plans and
specifications of the system; (3) such installation shall not damage
the Building; and (4) all costs of installation shall be borne solely
by Lessee.
8. CONTRACTORS: No contract of any kind with any supplier of towels,
water, toilet articles, waxing, rug shampooing, venetian blind washing,
furniture polishing, lamp servicing, cleaning of electrical fixtures,
removal of waste paper, rubbish, garbage, or other like service shall
be entered into by Lessee, nor shall any machine of any kind be
installed in the Building or the Office Building Area without the prior
written consent of the Lessor. Lessee shall not employ any persons
other than Lessor's janitors for the purpose of cleaning the Premises
without prior written consent of Lessor. Lessor shall not be
responsible to
37
Lessee for any loss of property from the Premises however occurring, or
for any damage to the effects of Lessee by such janitors or any of its
employees, or by any other person or any other cause.
9. PROHIBITED ON PREMISES: Lessee shall not conduct, or permit any other
person to conduct, any auction upon the Premises, manufacture or store
goods, wares or merchandise upon the Premises without the prior written
approval of Lessor, except the storage of usual supplies and inventory
to be used by Lessee in the conduct of his business, permit the
Premises to be used for gambling, make any unusual noises in the
Building, permit any musical instrument to be played on the Premises,
permit any radio to be played, or television, recorded or wired music
in such loud manner as to disturb or annoy other tenants, or permit any
unusual odors to be produced on the Premises. Lessee shall not permit
any portion of the Premises to be occupied as an office for a public
stenographer or typewriter, or for the storage, manufacture, or sale of
intoxicating beverages, narcotics, tobacco in any form or as a xxxxxx
or manicure shop. Canvassing, soliciting and peddling in the Building
and the Office Building Area are prohibited and Lessee shall cooperate
to prevent the same. No bicycles, vehicles or animals (except personal
assistance dogs) of any kind shall be brought into or kept in or about
the Premises.
10. PLUMBING, ELECTRIC AND TELEPHONE WORK: Plumbing facilities shall not be
used for any purpose other than those for which they were constructed;
and no sweepings, rubbish, ashes, newspaper or other substances of any
kind shall be thrown into them. Waste and excessive or unusual amounts
of electricity or water is prohibited. When electric wiring of any kind
is introduced, it must be connected as directed by Lessor, and no
stringing or cutting of wires will be allowed, except by prior written
consent of Lessor, and shall be done by contractors approved by Lessor.
The number and locations of telephones, telegraph instruments,
electrical appliances, call boxes, etc. shall be subject to Lessor's
approval.
11. MOVEMENT OF FURNITURE, FREIGHT OR BULKY MATTER: The carrying in or out
of freight, furniture or bulky matter of any description must take
place during such hours as Lessor may from time to time reasonably
determine and only after advance notice to the superintendent of the
Building. The persons employed by Lessee for such work must be
reasonably acceptable to the Lessor. Lessee may, subject to these
provisions, move freight, furniture, bulky matter, and other material
into or out of the Premises on Saturdays between the hours of 9:00 a.m.
and 1:00 p.m., provided Lessee pays additional costs, if any, incurred
by Lessor for elevator operators or security guards, and for any other
expenses occasioned by such activity of Lessee. If, at least three (3)
days prior to such activity, Lessor requests that Lessee deposit with
Lessor, as security of Lessee's obligations to pay such additional
costs, a sum of which Lessor reasonably estimates to be the amount of
such additional cost, the Lessee shall deposit such sum with Lessor as
security of such cost. There shall not be used in the Building or
Premises, either by Lessee or by others in the delivery or receipt of
merchandise, any hand trucks except those equipped with rubber tires
and side guards, and no hand trucks will be allowed in the elevators
without the consent of the superintendent of the Building.
12. SAFES AND OTHER HEAVY EQUIPMENT: Lessor reserves the right to prescribe
the weight and position of all safes and other heavy equipment so as to
distribute properly the weight thereof and to prevent any unsafe
condition from arising.
13. ADVERTISING: Lessor shall have the right to prohibit any advertising by
Lessee which in Lessor's reasonable opinion tends to impair the
reputation of the Building or its desirability as a building for
offices, and upon written notice from Lessor, Lessee shall refrain from
or discontinue such advertising.
14. NON-OBSERVANCE OR VIOLATION OF RULES BY OTHER TENANTS: Lessor shall not
be responsible to Lessee for non-observance or violation of any of
these rules and regulations by any other tenant.
38
15. AFTER HOURS USE: Lessor reserves the right to exclude from the Building
between the hours of 6:00 p.m. and 8:00 a.m. and at all hours on
Saturdays, Sundays and Building Holidays, all persons who do not
present a pass to the Building signed by the Lessee. Each Lessee shall
be responsible for all persons for whom such a pass is issued and shall
be liable to the Lessor for the acts of such persons.
16. PARKING: Lessee and its employees shall park their cars only in those
portions of the parking area designated by Lessor.
17. RESERVATIONS: Lessor hereby reserves to itself any and all rights not
granted to Lessee hereunder, including, but not limited to, the
following rights which are reserved to Lessor for its purposes in
operating the Building:
a) the exclusive right to the use of the name of the Building for all
purposes, except that Lessee may use the name as its business
address and for no other purposes; and
b) the right to change the name or address of the Building, without
incurring any liability to Lessee for doing so; and
c) the right to install and maintain a sign on the exterior of the
Building; and
d) the exclusive right to use or dispose of the use of the roof of
the Building; and
e) the right to limit the space on the directory of the Building to
be allotted to Lessee; and
f) the right to grant to anyone the right to conduct any particular
business or undertaking in the Building.
18. HEALTH: The Lessee shall be responsible for initiating, maintaining and
supervising all health and safety precautions and/or programs required
by Law in connection with the Lessee's use and occupancy of the
Premises.
19. HAZARDOUS MATERIALS: The Lessee shall not store, introduce or otherwise
permit any material known to be hazardous within the Premises. Any
material within the Premises which is determined to be hazardous shall
be removed and properly disposed of by the Lessee at the Lessee's sole
expense.
39
EXHIBIT C
LESSOR'S WORK
Workletter Agreement for office space on the 3rd floor, at 000 Xxxxxxx Xxxxx,
Xxxxxx, Xxxxxxxxxxxx between Cali Airport Realty Associates, L.P., as Lessor,
and Bluestone Software, Inc., as Lessee.
Dated: October 29, 1999
---------------------------------------------------------------------
DIVISION GLS DESCRIPTION BUDGET
---------------------------------------------------------------------
1.0 5510 General Requirements $ 23,694.74
---------------------------------------------------------------------
2.0 5524 Miscellaneous 24,972.00
---------------------------------------------------------------------
6.0 5561 Cabinets & Millwork 13,630.00
---------------------------------------------------------------------
8.1 5540 Doors & Hardware 42,600.00
---------------------------------------------------------------------
8.4 5570 Aluminum, Glass & Glazing 19,360.00
---------------------------------------------------------------------
9.3 5530 Partitions 58,250.00
---------------------------------------------------------------------
9.5 5542 Acoustical Ceilings 11,575.00
---------------------------------------------------------------------
9.7 5565 Painting and Vinyl Wall Covering 30,325.00
---------------------------------------------------------------------
9.9 5564 Flooring & Carpet 56,167.50
---------------------------------------------------------------------
15.3 5574 Fire Suppression 22,500.00
---------------------------------------------------------------------
15.4 5532 Plumbing 15,605.00
---------------------------------------------------------------------
15.5 5535 HVAC 59,989.25
---------------------------------------------------------------------
16.0 5533 Electrical 79,855.00
---------------------------------------------------------------------
SUBTOTAL $458,523.49
10% OVERHEAD 45,852.35
---------------------------------------------------------------------
SUBTOTAL $504,375.84
5% GENERAL CONDITIONS 25,218.79
---------------------------------------------------------------------
TOTAL $529,594.63
---------------------------------------------------------------------
Rentable Area = 23,957 S.F.
Preliminary pricing & assumptions based on Test-Fit-1 Dated 8/17/99
and ADA letter dated 9/29/99
---------------------------------------------------------------------
TOTAL COST $529,594.63
---------------------------------------------------------------------
5799 LESS: LESSOR'S ALLOWANCE $479,140.00
$20.00 per rt. sq. ft.
$0.00 lot allowance
---------------------------------------------------------------------
NET COST TO BE PAID BY $ 50,454.63
LESSEE PRIOR TO OCCUPANCY
---------------------------------------------------------------------
AGREED AND ACCEPTED:
LESSEE:
BLUESTONE SOFTWARE, INC.
By: /s/ Xxxxx Xxxx
----------------------
XXXXX XXXX
Chief Financial Officer
40
EXHIBIT C
NOTES
RE: Workletter Agreement for office space on the 3rd floor at 000 Xxxxxxx
Xxxxx, Xxxxxx, Xxxxxxxxxxxx between Cali Airport Realty Associates,
L.P. as Lessor and Bluestone Software, Inc., as Lessee.
You ("Lessee") and we ("Lessor") are executing simultaneously with this
Workletter Agreement a written lease ("Lease"), covering the space referred to
above, as more particularly described in the Lease ("Premises").
To induce Lessee to enter into the Lease (which is hereby incorporated by
reference) and in consideration of the covenants hereinafter contained, Lessor
and Lessee mutually agree as follows:
1a. Lessor has heretofore delivered to Lessee for use by Lessee and/or its
architect or engineer, such structural, electrical and mechanical
drawings, specifications, and other information with respect to the
Building ("Base Building Plans") reflecting Lessor's construction of
the core and shell of the Building (the "Core and Shell"). Lessee
acknowledges that the Core and Shell were constructed to construction
industry standard tolerances permitting limited deviations from the
requirements of the Base Building Plans. Lessee has or will cause its
architect or engineer to conduct a field survey of the Premises to
verify critical dimensions and ascertain any deviation from the Base
Building Plans.
1b. Lessee shall consult with its architect, engineer, designer and such
other consultants (collectively, "Lessee's Architect") as it shall deem
necessary for the development and timely completion of Construction
Documents, as hereinafter defined, which shall conform to the Base
Building Plans.
1c. Subject to the procedural requirements set forth below in Subsection
1.f., Lessee shall cause Lessee's Architect to prepare and design
development documents consisting of architectural, mechanical,
electrical, plumbing (if permitted) and structural drawing and other
documents to fix and describe the interior size and character of the
Premises (the "Construction Documents"). Lessee shall cause Lessee's
Architect to prepare and deliver to Lessor prior to the execution of
the lease one (1) complete reproducible set and a CAD disk(s)
containing the Construction Documents.
1d. Lessee's Construction Documents shall be signed and sealed by a
reputable architect or professional engineer (where applicable)
licensed and registered in the Commonwealth of Pennsylvania. In
addition to conforming to Lessor's Base Building Plans, Lessee's
Construction Documents shall also conform to all applicable laws,
ordinances, building codes and requirements of public authorities and
insurance underwriters. Lessee's Construction Documents shall contain,
at a minimum, floor plans, reflected ceiling plans, power and telephone
plans, mechanical plans, electrical plans, fire protection plans and
all other details and schedules which designate the locations and
specifications for all mechanical, electrical, fire protection and life
safety equipment to be installed in the Premises, and all partitions,
doors, lighting fixtures, electric receptacles and switches, telephone
outlets, special air-conditioning, and other improvements to be
installed within the Premises.
1e. Lessee's Construction Documents, as approved by Lessor and as modified
by Lessee to take account of any changes reasonably requested by
Lessor, are hereinafter considered to be "Issued for Construction".
1f. Lessee shall submit for Lessor's approval all Construction Documents.
The approval by Lessor of Lessee's Construction Documents shall be
subject to the following procedural requirements:
41
(1) Lessor shall review, within five (5) business days
after submission, the applicable documents or any additional requested
information, and either approve the same or return the same to Lessee with
requested modifications.
(2) If Lessor shall return the documents to Lessee with
requested modifications, Lessor shall specify a reasonable period of time, not
to exceed five (5) business days, within which such modifications shall be made
and within which such modified plans shall be resubmitted to Lessor by Lessee,
until the modified documents are finally approved by Lessor.
(3) To the extent the Tenant's Construction Documents,
in Lessor's sole judgment, involve any modification of, or impact upon, the
Building's structural, mechanical, electrical or plumbing systems or components,
then such approval may be withheld by Lessor in its absolute and sole
discretion.
2. Following Lessor's receipt of Construction Documents Issued for
Construction, upon Lessor's receipt from Lessee of an invoice
evidencing the actual cost of Lessee's preparation of its Construction
Documents, Lessor shall pay to Lessee's Architect the amount of such
cost as reimbursement therefor provided, that the aggregate amount to
be reimbursed by Lessor to Lessee for Lessee's cost to prepare such
documents shall not exceed $13,176.35, and the Construction Allowance
shall be reduced by every such reimbursement to Lessee.
3. Lessor agrees to do the work in the Premises as preliminarily described
on the "Description of Materials" schedule attached hereto and as shown
on the plans dated August 17, 1999 and ADA letter dated September 29,
1999, which shall hereinafter be referred to as "The Work". "Building
Standard" shall mean the type and grade of material, equipment and/or
device designated by Lessor as standard for the Building. All items are
Building Standard unless otherwise noted. The provisions of Article 5
of the Lease shall apply to any alterations made to the Premises after
the initial work to be performed herein.
4. Lessor has estimated the cost of The Work based upon the sketch plans
and specifications submitted to Lessor by Lessee to be $529,689.27
(23,957 RSF @ 22.11). This amount is an estimate only. Against such
estimated cost, Lessor shall credit an allowance of $479,140 (23,957
RSF @ $20 per RSF) (the "Construction Allowance") and the remaining
balance, if any, shall be paid by Lessee prior to occupancy. The
Construction Allowance may be used to pay the cost of The Work,
preparing Construction Documents (as provided above), obtaining
construction and occupancy permits, oversight and inspection fees of
Lessor, Lessor's construction representative and governmental
authorities, and fees of the general contractor. No part of the
Construction Allowance may be used for any other purpose and may not be
used to fund, pay for or offset any miscellaneous tenant expense or as
a rent credit. Lessor shall obtain, and provide to Lessee, at least two
bids from general contractors for The Work. Lessor agrees to request a
bid for The Work from Interior Construction Plus, provided that
Interior Construction Plus provides evidence to Lessor that it
maintains insurance coverages and amounts in keeping with Lessor's
standards.
5. All low partitioning, work station modules, bankscreen partitions and
prefabricated partition systems shall be furnished and installed by
Lessee.
6. The installation or wiring of telephone and computer (data) outlets is
not part of The Work. Lessee shall bear the responsibility to provide
its own telephone and data systems at Lessee's sole cost and expense.
Upon expiration or sooner termination of the Lease, Lessee shall remove
all telephone and data equipment and wiring from the Premises and the
Building risers prior to vacation of same.
7. Changes in The Work, if necessary or requested by the Lessee, shall be
accomplished after the execution of the Lease and this Workletter
Agreement, and without invalidating any part of the Lease or Workletter
Agreement, by written agreement between Lessor and Lessee hereinafter
referred to as a Change Order. Each Change Order shall be prepared by
Lessor and signed by both Lessee and Lessor stating their agreement
upon all of the following:
42
a. The scope of the change in The Work; and
b. The cost of the change; and
c. Manner in which the cost will be paid or credited; and
d. The estimated extent of any adjustment to the Commencement Date as
a result of the change in The Work.
Each and every Change Order shall be signed by Lessor's and Lessee's
respective construction representatives. In no event shall any Change
Order(s) be permitted without such authorizations. A 10% supervision
plus 5% overhead charge will be added to the cost of any Change Order
executed thirty (30) days or more after the date of the Lease. If
Lessee shall fail to approve any such Change Order within one (1) week,
the same shall be deemed disapproved in all respects by Lessee and
Lessor shall not be authorized to proceed thereon. Any increase in the
cost of The Work or the change in The Work stated in a Change Order
which results from Lessee's failure to timely approve and return said
Change Order shall be paid by the Lessee. Lessee agrees to pay to
Lessor the cost of any Change Order promptly upon receipt of an invoice
for same.
8. If Lessee elects to use the architect suggested by Lessor, this
architect becomes the Lessee's agent solely with respect to the plans,
specifications and The Work. If any change is made prior to completion
of schematic drawings and final construction documents which result in
a Change Order and additional costs, such costs shall be the
responsibility of the Lessee. Similarly, any cost savings resulting
from such Change Order(s) shall be credited to the Lessee.
9. Prior to Lessee's occupancy of the Premises, Lessee shall identify and
list any portion of The Work which does not conform to this Workletter
Agreement ("Punch List"). The Lessor shall review with the Lessee all
of the items so listed and correct or complete any portion of The Work
which fails to conform to the requirements of this Workletter
Agreement.
10. The terms contained in the Lease (which include all exhibits attached
thereto) constitute Lessor's agreement with Lessee with respect to the
work to be performed by Lessor on Lessee's behalf. If the architectural
drawings are in conflict with the terms of the Lease, then the Lease
shall be deemed the controlling document.
11. All materials and installations constructed for the Lessee within the
Premises shall become the property of the Lessor upon installation. No
refund, credit or removal of said items is to be permitted at the
termination of the Lease. Items installed that are not integrated in
any such way with other common building materials do not fall under
this provision (e.g. shelving, furniture, etc.).
12. It is agreed that notwithstanding the date provided in the Lease for
the Commencement Date, the term shall not commence until Lessor has
"substantially completed" all work to be performed by Lessor as
hereinbefore set forth in Paragraph 3 above and as set forth in the
Lease; provided, however, that if Lessor shall be delayed in
substantially completing said work as a result of:
a. Lessee's failure to provide Construction Documents in accordance
with Paragraph 1 hereof; or
b. Lessee's failure to furnish interior finish specifications, i.e.,
paint colors, carpet selection, etc., to Lessor by the fifth (5th)
working day after Lessor has approved the Construction Documents
submitted by Lessee referred to in Paragraph 1 hereof; or
c. Lessee's request for materials, finishes or installations other
than Lessor's Building
43
Standard; or
d. Lessee's changes in The Work; or
e. The performance of a person, firm, partnership or corporation
employed by Lessee and the completion of the said work by said
person, firm, partnership or corporation;
then the Commencement Date of the term of said Lease shall be
accelerated by the number of days of such delay and Lessee's obligation
to pay Fixed Basic Rent and Additional Rent shall commence as of such
earlier date.
13. Lessor shall permit Lessee and its agents to enter the Premises prior
to the Commencement Date in order that Lessee may perform through its
own union contractors such other work and decorations as Lessee may
desire at the same time Lessor's contractors are working in the
Premises. The foregoing license to enter prior to the Commencement
Date, however, is conditioned upon:
a. Lessee's workmen and mechanics working in harmony and not
interfering with the labor employed by Lessor, Lessor's mechanics
or contractors or by any other Lessee or its mechanics or
contractors; and
b. Lessee providing Lessor with evidence of Lessee's contractors and
subcontractors carrying such worker's compensation, general
liability, personal and property insurance as required by law and
in amounts no less than the amounts set forth in Article 30 of the
Lease. If at any time such entry shall cause disharmony or
interference therewith, this license may be withdrawn by Lessor
upon forty-eight (48) hours written notice to Lessee. Such entry
shall be deemed controlled by all of the terms, covenants,
provisions and conditions of said Lease, except as to the covenant
to pay Fixed Basic Rent and Additional Rent. Lessor shall not be
liable in any way for any injury, loss or damage which may occur
to any of Lessee's decorations or installations so made prior to
the Commencement Date, the same being solely at Lessee's risk.
a. Lessee providing to Lessor for filing, an original Waiver of
Mechanics' Liens fully executed by Lessee's general contractor in
recordable form and otherwise in form satisfactory to Lessor.
d. Lessee providing to Lessor a copy of the written agreement between
Lessee and its contractor containing a general waiver of liens by
such contractor for itself and all subcontractors.
14. No part of the Premises shall be deemed unavailable for occupancy by
the Lessee, or shall any work which the Lessor is obligated to perform
in such part of the Premises be deemed incomplete for the purpose of
any adjustment of Fixed Basic Rent payable hereunder, solely due to the
non-completion of details of construction, decoration or mechanical
adjustments which are minor in character and the non-completion of
which does not materially interfere with the Lessee's use of such part
of the Premises.
15. Lessee is responsible for all costs related to the repairs and
maintenance of any additional or supplemental HVAC systems, appliances
and equipment installed to meet Lessee's specific requirements. Lessee
shall purchase a service contract for this equipment so that the
equipment is covered by such service contract each year of the term of
the Lease.
16. If construction is to occur in a space occupied by Lessee's employees,
Lessee shall be liable for all costs associated with a delay if Lessee
shall fail to comply with a submitted construction schedule to relocate
personnel, furniture, or equipment. These costs shall include, but not
be limited to the following:
a. cost of construction workers time wasted; and
b. cost of any overtime work necessary to meet schedule deadlines;
and
c. any other costs associated with delays in final completion.
17. This workletter is based on the quantities and specifications listed
herein. Any change to
44
these specifications shall require the recalculation of the
construction costs. Such recalculation shall not negate any other
section of this Lease.
18. With respect to the construction work being conducted in or about the
Premises, each party agrees to be bound by the approval and actions of
their respective construction representatives. Unless changed by
written notification, the parties hereby designate the following
individuals as their respective construction representatives:
FOR LESSOR: FOR LESSEE:
c/o Xx. Xxxx XxXxxx Xx. Xxxx Xxxxx
Xxxx-Xxxx Realty Corporation 000 Xxxxxx Xxxx
00 Xxxxxxxx Xxxxx Xx. Xxxxxx, Xxx Xxxxxx 00000
Xxxxxxxx, Xxx Xxxxxx 00000
If the foregoing correctly sets forth our understanding, kindly sign this letter
agreement where indicated.
CALI AIRPORT REALTY BLUESTONE SOFTWARE, INC.,
ASSOCIATES, L.P., LESSOR LESSEE
By: Xxxx-Xxxx Sub XVIII, Inc.
Managing General Partner
By: /s/ Xxxx Xxx Xxxxxxxx By: /s/ Xxxxx Xxxx
-------------------------------------- -----------------------
Xxxx Xxx Xxxxxxxx Xxxxx Xxxx
Vice President, Leasing - NJ/PA Region Chief Financial Officer
45
EXHIBIT C - 1
AIR CONDITIONING & HEATING DESIGN STANDARDS
The following are design standards for the building air-conditioning system for
cooling and heating in the air in the subject building:
1. During the normal heating season to maintain an average indoor dry bulb
temperature of not less than 70 degrees F (21 degrees C) or more than
76 degrees (24.4 degrees C) when the outdoor dry bulb temperature is
lower than 65 degrees F (18 degrees C) but not lower than 0 degrees F
(-13 degrees C).
2. To maintain comfort cooling for an average indoor dry bulb temperature
of not more than 78 degrees F when the outside dry bulb temperature is
95 degrees F (24 degrees C).
3. During the intermediate seasons, when the outside dry bulb temperature
is below 55 degrees (13 degrees C), cooling will be provided by outside
air usage in conjunction with operating of return air, outside air and
exhaust air dampers.
4. To furnish not less than .10 cubic foot of fresh air per minute per
square foot of rentable area, and between .20 and 1.0 cubic feet of
total air per minute, per square foot of rentable occupied space.
5. Lessor will not be responsible for the failure of the air-conditioning
system if such failure results from (i) the occupancy of the Premises
with more than an average of one (1) person for each one hundred (100)
usable square feet of floor area (ii) the installation or operation by
Lessee of machines and appliances, the installed electrical load of
which when combined with the load of all lighting fixtures exceeds five
(5) xxxxx per square foot of floor area and in any manner exceeding the
aforementioned occupancy and electrical load criteria, or (iii)
rearrangement of partitioning after the initial preparation of the
Premises. If interference with normal operation of the air-conditioning
system in the Premises results, necessitating changes in the air
conditioning system servicing the Premises, such changes shall be made
by Lessor upon written notice to Lessee at Lessees sole cost and
expense. Lessee agrees to lower and close window coverings when
necessary because of the suns position whenever the air conditioning
system is in operation, and Lessee agrees at all times to cooperate
fully with Lessor and to abide by all the Rules and Regulations
attached hereto as well as reasonable rules and regulations which
Lessor may hereafter prescribe involving the air-conditioning system.
50
EXHIBIT D
CLEANING SERVICES
(Five Nights Per Week)
LESSEE'S PREMISES
1. Vacuum clean all carpeted areas.
2. Sweep and dust mop all non-carpeted areas. Wet mop whenever necessary.
3. All office furniture such as desks, chairs, files, filing cabinets,
etc. shall be dusted with a clean treated dust cloth whenever necessary
and only if such surfaces are clear of Lessee's personal property
including but not limited to plants.
4. Empty and wash ashtrays.
5. Empty wastepaper baskets and remove waste to the designated areas.
6. All vertical surfaces within arms reach shall be spot cleaned to remove
finger marks and smudges. Baseboard and window xxxxx are to be spot
cleaned whenever necessary.
7. All cleaning of cafeterias, vending areas, kitchen facilities are
excluded. Lessee may make necessary arrangements for same directly with
Lessor's cleaning maintenance company.
8. Cleaning hours shall be Monday through Friday between 5:30 p.m. and
11:00 p.m.
9. No cleaning service is provided on Saturday, Sunday and Building
Holidays.
10. Cartons or refuse in excess which can not be placed in wastebaskets
will not be removed. Lessee is responsible to place such unusual refuse
in trash dumpster.
11. Cleaning maintenance company will not remove nor clean tea, office cups
or similar containers. If such liquids are spilled in waste baskets,
the waste baskets will be emptied but not otherwise cleaned. Lessor
will not be responsible for any stained carpet caused from liquids
leaking or spilling from Lessee's wastepaper receptacles.
12. Upon completion of cleaning, all lights will be turned off and doors
locked leaving the Premises in an orderly condition.
13. Glass entrance doors will be cleaned nightly. Interior glass doors or
glass partitions are excluded. Lessee may make arrangements for same
with Lessor's cleaning maintenance company.
COMMON AREAS
1. Vacuum all carpeting in entrance lobbies, outdoor mats and all
corridors.
2. Wash glass doors in entrance lobby with a clean damp cloth and dry
towel.
3. Clean cigarette urns. Sweep and/or wet mop all resilient tile flooring.
Hard surface floors such as quarry tile, etc., shall be cleaned
nightly.
4. Wash, clean and disinfect water fountains.
5. Clean all elevators and stairwells.
6. Lavatories -- Men and Women.
a. Floors in all lavatories shall be wet mopped each evening with a
germicidal detergent to ensure a clean and germ free surface.
b. Wash and polish all mirrors, shelves, bright work including any
piping and toilet seats. c. Wash and disinfect wash basins and
sinks using a germicidal detergent.
d. Wash and disinfect toilet bowls and urinals.
51
e. Keep lavatory partitions, tiled walls, dispensers and receptacles
in a clean condition using a germicidal detergent when necessary.
f. Empty and sanitize sanitary disposal receptacles.
g. Fill toilet tissue holders, towel dispensers and soap dispensers.
Refills to be supplied by Lessor.
7. Clean all air ventilation grill work in ceilings.
52
EXHIBIT E
BUILDING HOLIDAYS
BUILDING CLOSED
* NEW YEAR'S DAY *
* MEMORIAL DAY *
* INDEPENDENCE DAY *
* LABOR DAY *
* THANKSGIVING DAY *
* CHRISTMAS DAY *
53
EXHIBIT F
TENANT ESTOPPEL CERTIFICATE
TO: MORTGAGEE and/or its affiliates and/or whom else it may concern:
1. The undersigned is the Lessee (Tenant) under that certain Lease dated
by and between CALI AIRPORT REALTY ASSOCIATES, L.P. as Lessor
(Landlord) and BLUESTONE SOFTWARE, INC., as Lessee, covering those
certain premises commonly known and designated as 23,957 r.s.f. on the
third (3) floor of 000 Xxxxxxx Xxxxx, Xxxxxx, XX.
2. The Lease has not been modified, changed, altered or amended in any
respect (except as indicated following this sentence) and is the only
Lease or agreement between the undersigned and the Lessor affecting
said premises. If none, state "none".
3. The undersigned has made no agreements with Lessor or its agents or
employees concerning free rent, partial rent, rebate of rental payments
or any other type of rental concession (except as indicated following
this sentence). If none, state "none".
4. The undersigned has accepted and now occupies the premises, and is and
has been open for business since , l99_. The Lease term began , 199_,
and the rent for said premises has been paid to and including , 199_ in
conformity with this Lease agreement. No rent has been prepaid for more
than two (2) months. The fixed minimum rent being paid as above is $
__________ per month. If Lessee is not in full possession, whether
Lessee has assigned the Lease, sublet all or any portion of the
Premises, or otherwise transferred any interest in the Lease or the
Premises, Lessee agrees to provide a copy of such assignment, sublease,
or transfer upon request.
5. The Lease is not in default and is in full force and effect. As of the
date hereof, the undersigned is entitled to no credit, no free rent and
no offset or deduction in rent.
6. All alterations, improvements, additions, build-outs, or construction
required to be performed under the Lease have been completed in
accordance with the terms of the Workletter attached to Lease as
Exhibit C.
7. The Lease does not contain and the undersigned doesn't have any
outstanding options or rights of first refusal to purchase the premises
or any part thereof or the real property of which the premises are a
part.
8. No actions, whether voluntary or otherwise, are pending against the
undersigned under the bankruptcy laws of the United States or any State
thereof.
9. There are currently no valid defenses, counterclaims, off-sets,
credits, deductions in rent, or claims against the enforcement of any
of the agreements, terms, or conditions of the Lease.
10. The undersigned acknowledges that all the interest of Lessor in and to
the above-mentioned Lease is being duly assigned to MORTGAGEE or one of
its affiliates hereunder and that pursuant to the terms thereof (i) all
rental payments under said Lease shall continue to be paid to Lessor in
accordance with the terms of the Lease unless and until you are
otherwise notified in writing by MORTGAGEE, or its successor or assigns
and (ii) no modification, revision, or cancellation of the Lease or
amendments thereto shall be effective unless a written consent thereto
of such mortgagee is first obtained.
11. The undersigned is authorized to execute this Tenant Estoppel
Certificate on behalf of the Lessee.
Dated this ________ day of __________________ , 199__
BLUESTONE SOFTWARE, INC.,
LESSEE
-----------------------------
Name:
Title:
54
EXHIBIT G
COMMENCEMENT DATE AGREEMENT
1. PARTIES
1.1 THIS AGREEMENT made the _________day of ________, 199__ is by and
between CALI AIRPORT REALTY ASSOCIATES, L.P. ("Lessor") whose
address is c/o Xxxx-Xxxx Realty Corporation, 00 Xxxxxxxx Xxxxx,
Xxxxxxxx, Xxx Xxxxxx 00000 and BLUESTONE SOFTWARE, INC. ("Lessee")
whose address is 000 Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxx.
2. STATEMENT OF FACTS
2.1 Lessor and Lessee entered into a Lease dated October __, 1999
("Lease") setting forth the terms of occupancy by Lessee of
approximately 23,957 gross rentable square feet on the third (3rd)
floor ("Premises") at 000 Xxxxxxx Xxxxx, Xxxxxx, XX ("Building");
and
2.2 The Term of the Lease is for seven years and six months with the
Commencement Date of the initial Term being defined in the
Preamble to the Lease as being subject to change under Articles 27
and 43 thereof; and
2.3 It has been determined in accordance with the provisions of
Articles 27 and 43 of the Lease that ___________, 1999 is the
Commencement Date of the Term of the Lease.
3. AGREEMENT
NOW, THEREFORE, in consideration of the Premises and the covenants
hereinafter set forth, Lessor and Lessee agree as follows:
3.1 The Commencement Date of the Term of the Lease is ___________ ,
1999 and the Expiration Date thereof is _____________ , 2000 and
Articles 6 and 9 of the Preamble to the Lease shall be deemed
amended accordingly.
3.2 Article 10 of the Preamble to the Lease shall be deemed amended as
follows:
3.3 This Agreement is executed by the parties hereto for the purpose
of providing a record of the Commencement and Expiration Dates of
the Lease, adjust the Term of the Lease and Fixed Basic Rent
amount accordingly.
EXCEPT AS EXPRESSLY AMENDED HEREIN, the Lease covering the Premises
shall remain in full force and effect as if the same were set forth in full
herein and Lessor and Lessee hereby ratify and confirm all the terms and
conditions thereof.
THIS AGREEMENT shall be binding upon and inure to the benefit of the
parties hereto and their respective legal representatives, successors and
permitted assigns.
EACH PARTY AGREES that it will not raise or assert as a defense to any
obligation under the Lease or this Agreement or make any claim that the Lease or
this Agreement is invalid or unenforceable due to any failure of this document
to comply with ministerial requirements including, but not limited to,
requirements for corporate seals, attestations, witnesses, notarizations, or
other similar requirements, and each party hereby waives the right to assert any
such defense or make any claim of invalidity or unenforceability due to any of
the foregoing.
55
IN WITNESS THEREOF, Lessor and Lessee have hereunto set their hands and
seals the date and year first above written and acknowledge one to the other
they possess the requisite authority to enter into this transaction and to sign
this Agreement.
CALI AIRPORT REALTY BLUESTONE SOFTWARE, INC.,
ASSOCIATES, L.P., LESSOR LESSEE
By: Xxxx-Xxxx Sub XVIII, Inc.,
Managing General Partner
By: By:
------------------------------------- ------------------------
Xxxx X. Xxxxxxxx, Name:
Vice President-Leasing, PA/NJ Region Title:
56
EXHIBIT H
LETTER OF CREDIT FORM
Bank:
-------------------
Date:
-------------------
c/o Xxxx-Xxxx Realty Corporation
00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
RE: Irrevocable, Clean Letter of Credit No.
------------------------------------
Gentlemen:
At the request of ____________________________ (herein the "Company") we, as
drawee, hereby establish our Irrevocable Letter of Credit No.
_______________________ in your favor and authorize you to draw on us up to an
aggregate sum of ___________________________, available by your drafts at sight
as of ___________________.
All drafts must be presented at our office at our close of business not later
than ___________________, together with a statement signed by a duly authorized
representative of ___________________, (or duly authorized designee of any
subsequent holder of this credit) (herein the "Beneficiary") certifying that the
Beneficiary is entitled to draw such draft pursuant to a Lease Agreement between
it and the Company dated ________________________. Reference in this credit to a
Lease Agreement dated __________________ is for identification purposes only,
and the terms and conditions of same are not incorporated in nor made part of
this credit. We hereby engage with you (and any subsequent holder of this
credit) that we shall accept said statement as binding, correct and conclusive
without verification or investigation as to the accuracy, veracity, correctness,
genuineness or validity of the same.
If this credit is not renewed on or before the last date for presentation of
drafts for an additional period not less than twelve (12) months on an ongoing
basis throughout the term of the Lease Agreement, the amount of this credit
shall be paid to the Beneficiary upon demand, notwithstanding that such demand
may be made up to thirty (30) days after the last date for presentation of
drafts.
Should the Beneficiary not make demand for payment within the specified period,
then the Letter of Credit shall be automatically renewed for an additional
twelve (12) month period for each succeeding year until
___________________________ or thirty (30) days after the expiration or sooner
termination of the aforesaid Lease Agreement, whichever occurs later.
No charges are payable by the Beneficiary. All charges are for the account of
the Company.
We hereby engage with the drawers, endorsers and bona fide holders of all drafts
drawn under and in compliance with the terms of this Letter of Credit that such
drafts will be duly honored upon presentation to the drawee.
This Letter of Credit is subject to the "Uniform Customs and Practice for
Documentary Credits" _________________________. International Chamber of
Commerce Brochure, No.___________________.
Address all drafts, documents and correspondence regarding this Letter of Credit
to ___________________ at the above address, mentioning specifically our Letter
of Credit No.__________________.
Very truly yours,
57
SCHEDULE 1
FIXED BASIC RENT PAYMENTS
--------------------------------------------------------------------------------
TERM YEAR YEARLY RATE MONTHLY RATE
--------------------------------------------------------------------------------
1/1/2000 through 12/31/2000 $485,398.00 For January 1
through May 31,
2000 - $30,000
for June 1 through
December 31,
2000 - $47,914
--------------------------------------------------------------------------------
1/1/2001 through 12/31/2001 $586,946.50 $48,912.21
--------------------------------------------------------------------------------
1/1/2002 through 12/31/2002 $598,925.00 $49,910.42
--------------------------------------------------------------------------------
1/1/2003 through 12/31/2003 $610,903.50 $50,908.63
--------------------------------------------------------------------------------
1/1/2004 through 12/31/2004 $622,882.00 $51,906.83
--------------------------------------------------------------------------------
1/1/2005 through 12/31/2005 $634,860.50 $52,905.04
--------------------------------------------------------------------------------
1/1/2006 through 12/31/2006 $646,839.00 $53,903.25
--------------------------------------------------------------------------------
1/1/2007 through 6/30/2007 $329,408.75 (6 months) $54,901.46
--------------------------------------------------------------------------------
Total: $4,516,163.25
--------------------------------------------------------------------------------
CALI AIRPORT REALTY BLUESTONE SOFTWARE, INC.
ASSOCIATES, L.P.
By: Xxxx-Xxxx Sub XVIII, Inc.,
Managing General Partner
By: By:
-------------------------------- -------------------------
Xxxxx X. Xxxxxx Xxxxx Xxxx
Senior Vice President - Leasing Chief Financial Officer
58
