EXHIBIT 10.3
Office Space Lease
for
000 XXXXX XXXXX, XXXXXXXXXX, XXXXXXXXXXXX
by and between
EQUIVEST MANAGEMENT CORPORATION,
(as Agent for Landlord)
and
ORAPHARMA, INC.
(as Tenant)
Date: June ___, 1998
TABLE OF CONTENTS
Section Page
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1. Definitions.................................................. 1
2. Premises..................................................... 1
3. Completion of Premises....................................... 1
4. Term......................................................... 3
5. Use of Premises.............................................. 3
6. Rent......................................................... 3
7. Insurance.................................................... 7
8. Repairs and Maintenance...................................... 8
9. Utilities and Services....................................... 9
10. Governmental Regulations..................................... 10
11. Signs........................................................ 10
12. Alterations, Additions and Fixtures.......................... 10
13. Mechanic's Liens............................................. 11
14. Landlord's Right of Entry.................................... 12
15. Damage by Fire or Other Casualty............................. 13
16. Non-Abatement of Rent........................................ 14
17. Indemnification.............................................. 14
18. Condemnation................................................. 15
19. Quiet Enjoyment.............................................. 16
20. Rules and Regulations........................................ 16
21. Assignment and Sublease...................................... 16
22. Tenant's Relocation.......................................... 19
23. Subordination................................................ 19
24. Curing Tenant's Defaults..................................... 20
25. Surrender.................................................... 20
26. Defaults-Remedies............................................ 21
27. Condition of Premises........................................ 23
28. Hazardous Substances......................................... 24
29. Recording.................................................... 25
30. Brokers' Commission.......................................... 25
31. Notices...................................................... 25
32. Irrevocable Offer: No Option................................. 26
33. Inability to Perform......................................... 26
34. Survival..................................................... 26
35. Corporate Tenants............................................ 26
36. Waiver of Invalidity of Lease................................ 26
37. Security Deposit............................................. 26
38. Tenant Estoppel Certificate.................................. 27
39. Rights Reserved by Landlord.................................. 28
40. Miscellaneous................................................ 29
41. Additional Definitions....................................... 31
THIS LEASE (the "Lease") is made the ___ day of June, 1998 between EQUIVEST
MANAGEMENT CORPORATION, AGENT (herein referred to as "Landlord") or the
successors in title to the below described Building whose address is 000 Xxxxx
Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 and ORAPHARMA, INC.
(herein referred to as "Tenant") whose address is 0000 Xxxxx 00 Xxxx, Xxxxx 000,
Xxxxxxxxxxx, Xxx Xxxxxx 00000.
PREAMBLE
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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
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by Tenant to Landlord or to third parties pursuant to the provisions of the
Lease.
2. BASE YEAR shall mean the calendar year ending December 31, 1999.
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3. BROKER(S) shall mean Xxxxxx & Associates, Inc. and The Xxxxx Company.
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4. BUILDING shall mean 000 Xxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx as described
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on Exhibit A hereto.
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5. BUILDING HOLIDAYS [INTENTIONALLY DELETED].
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6. COMMENCEMENT DATE shall be October 1, 1998 subject to Sections 3 and 4 of
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the Lease.
7. DEMISED PREMISES OR PREMISES shall be approximately eleven thousand three
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hundred (11,300) gross rentable square feet which includes an allocable
share of the Common Facilities as defined Section 2 subject to final
measurement and agreement in accordance with 1996 BOMA standards.
8. EXHIBITS shall be the following, attached to this Lease and incorporated
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herein and made a part hereof:
Exhibit A Location of Premises
Exhibit X-0 Xxxxxx Xxxxxxxx Xxxx
Xxxxxxx X Rules and Regulations
Exhibit C Landlord's Work
Exhibit D Tenant Estoppel Certificate
Exhibit E Commencement Date Agreement
9. EXPIRATION DATE shall be the day before the fifth (5/th/) calendar year
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anniversary of the Commencement Date.
10. FIXED BASIC RENT shall be calculated and payable as follows:
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Rate per square foot
Square (net of operating costs Yearly Monthly
Year Footage and utilities) Rate Installment
------ ------- ------------------------ ----------- -----------
1 11,300 $14.50 $163,850.00 $13,654.17
2 11,300 $15.00 $169,500.00 $14,125-00
3 11,300 $15.50 $175,150.00 $14,595-83
4 11,300 $16.00 $180,800.00 $15,066.67
5 11,300 $16.50 $186,450.00 $15,537.50
Total: $875,750.00
11. OFFICE BUILDING AREA is as set forth on Exhibit A-1
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12. PERMITTED USE shall be general office use and research and development
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laboratory, including pilot production of new products.
13. PROPORTIONATE SHARE shall mean twenty two percent (22%).
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14. SECURITY DEPOSIT shall be Twenty Seven Thousand Three Hundred Eight and
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34/100 Dollars ($27,308.34).
15. TERM shall mean five (5) years from the Commencement Date unless terminated
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or extended pursuant to any option or provision contained herein.
1998 40,962.51
1999 165,262.53
2000 170,912.49
2001 176,562.48
2002 182,212.53
2003 139,837.50
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875,750.04
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ii
For and in consideration of the covenants herein contained, and upon the
terms and intending to be legally bound, agree as conditions herein set forth
Landlord and Tenant, intending to be legally bound, agree as follows:
1. Definitions. The definitions set forth in the preceding Preamble
shall apply to the same capitalized terms appearing in this Lease Agreement.
Additional definitions are contained in Section 41 and throughout this Lease.
2. Premises. Landlord hereby demises and leases the Premises to Tenant
and Tenant hereby leases and takes the Premises from Landlord for the Term (as
defined in Section 4) and upon the terms, covenants, conditions, and provisions
set forth in this Lease Agreement, including the Preamble (this "Lease"). The
Tenant's interest in the Premises as tenant shall include the right, in common
with Landlord and other occupants of the Building, to use driveways, sidewalks,
and parking areas, for the use of all of the tenants of the Building (the
"Common Facilities").
3. Completion of Premises.
(a) The Landlord shall, at its sole cost and expense, cause to be
completed on the Premises in accordance with the plans and specifications
attached hereto as Exhibit C (herein called the "Plans"), which Plans shall be
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mutually acceptable by both Landlord and Tenant, certain improvements ("Landlord
Improvements"). All necessary construction shall be commenced promptly
following Landlord's execution and acceptance of this Lease and Tenant's
delivery of the first month's Fixed Basic Rent and the Security Deposit to
Landlord and shall be substantially completed ready for use and occupancy by
Tenant on the Lease Commencement Date set forth in the Preamble; provided,
however, that the time for substantial completion of the Premises shall be
extended for additional periods of time equal to the time lost by Landlord or
Landlord's contractors, subcontractors or suppliers due to strikes or other
labor troubles; delays in Tenant's selection of materials, plans or
specifications; governmental restrictions and limitations; unavailability or
delays in obtaining fuel, labor or materials; war or other national emergency;
accidents; floods; defective materials; fire damage or other casualties; adverse
weather conditions; or any cause similar or dissimilar to the foregoing which is
beyond the reasonable control of Landlord or Landlord's contractors,
subcontractors or suppliers. The Premises shall be deemed substantially
completed when the Landlord Improvements have been substantially completed or
Tenant is in receipt of a Certificate of Occupancy or Temporary Certificate of
Occupancy, (punchlist items excepted), unless the failure to obtain such
Certificate of Occupancy or Temporary Certificate of Occupancy, is due solely to
the failure of Tenant to complete Tenant Work as described in Section 3(b)
below. All construction shall be done in a good and workmanlike manner and
shall comply at the time of completion with all applicable laws, ordinances,
regulations and orders of the federal, state, county or other governmental
authorities having jurisdiction thereof. Tenant and its authorized agents,
employees and contractors shall have the right, at Tenant's own risk, expense
and responsibility, at all reasonable times prior to the Commencement Date as
hereinafter defined, to enter the Premises for the purpose of taking
measurements and installing its furnishings and equipment; provided that Tenant,
in so doing, shall not interfere with or delay the work to be performed
hereunder by Landlord, and Tenant shall use contractors and workmen compatible
with the contractors and workmen engaged in the work to be performed hereunder
by Landlord, and Tenant shall have obtained Landlord's written consent to
installing any furnishings or equipment which consent shall not be unreasonably
withheld or delayed. If Landlord shall fail to deliver possession of the
Premises by the Commencement Date for any reason, whether or not within
Landlord's control, Landlord shall not be subject to any liability to Tenant.
If Landlord fails to deliver the Premises by November 1, 1998, then Tenant may
terminate this Lease upon three (3) days prior written notice to Landlord of
such election and upon such termination Tenant and Landlord shall have no
further obligations hereunder and this Lease shall be null and void.
(b) Tenant Work. Tenant shall cause to be completed upon the
Premises in accordance with applicable laws, ordinances or regulations and
orders of federal, state or other governmental authorities, those improvements,
other than the Landlord Improvements, which are necessary or desirable to Tenant
in order to make the Premises suitable for Tenant's use and occupancy ("Tenant
Work"). Tenant Work shall be subject to the following conditions:
(i) Not later than ten (10) days prior to commencing the
Tenant Work, Tenant shall provide Landlord with plans and specifications of the
Tenant Work, and the identity of the general contractor engaged by Tenant to
perform the Tenant Work.
(ii) Tenant or Tenant's contractor shall, throughout the period
of construction, procure and maintain building's risk insurance coverage in an
amount sufficient to cover the cost of Tenant Work, and naming the Tenant and
Landlord as additional insureds, as their interests may appear.
(iii) Tenant shall promptly pay and discharge all costs,
expenses, damages and other liabilities which may arise in connection with or by
reason of the Tenant Work.
(iv) Tenant shall not permit the filing of any mechanic's lien
and, within thirty (30) days after written notice of its existence thereof from
Landlord shall discharge or bond over any mechanic's lien for material or labor
claimed to have been furnished to the Premises on Tenant's behalf (except for
work contracted for by Landlord). Prior to commencing any of the Tenant Work,
Tenant shall (i) file waivers on behalf of each contractor waiving such
contractor's night to file for or claim a mechanic's lien under Pennsylvania's
Mechanic's Lien Law and (ii) provide to Landlord a time-stamped cover of such
filings.
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(v) The Tenant Work shall be completed in accordance with the
plans and specifications and construction schedule prepared by Tenant and
attached hereto or provided to Landlord, subject to changes as may be approved
by Tenant pursuant to a written change order signed by Tenant.
(vi) The Tenant Work will not weaken or impair the structural
integrity or lessen the value of the Premises or any part thereof
(vii) Not later than two (2) business days prior to commencement
of the Tenant Work, Tenant shall obtain, at Tenant's sold cost and expense, all
permits and approvals necessary for construction of the Tenant Work and shall
provide a copy of same to Landlord promptly upon receipt.
4. Term. The term of this Lease shall commence on the Commencement Date.
Following the Commencement Date, the term of this Lease, unless sooner
terminated as expressly provided in this Lease, shall continue until the date of
expiration of the term specified as the Term of Lease in the Preamble plus the
number of days which remain in the calendar month in which such term expires
(the "Term"). Upon request of Landlord, Tenant shall enter into a memorandum
agreement stipulating the actual Commencement Date of the Term substantially in
the form attached hereto as Exhibit E.
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5. Use of Premises. Tenant shall occupy the Premises throughout the Term
and shall use the same for, and only for, the Permitted Use specified in the
Preamble. The Building is designed to normal building standards for floor-
loading capacity. Tenant shall not use the Premises in such ways which, in
Landlord's judgment, exceed such load limits.
6. Rent. Unless otherwise specifically requested by Landlord at any
time, Fixed Basic Rent, Additional Rent and any other rent or other sums due
under this Lease (hereunder collectively referred to as Rent) shall be paid and
delivered to Landlord's on-site property manager, if any, as agent for Landlord,
in the amounts, time and manner more particularly provided in this Lease.
(a) Fixed Basic Rent. Tenant shall pay, throughout the Term, Fixed
Basic Rent in the amount specified in the Preamble, without notice or demand and
without setoff or deduction, in equal monthly installments equal to one-twelfth
of the Fixed Basic Rent (specified as Monthly Installments in the Preamble), in
advance, on the first day of each calendar month during the Term. If the
Commencement Date falls on a day other than the first day of a calendar month,
the Fixed Basic Rent shall be apportioned on a per them basis for the period
between the Commencement Date and the first day of the first full calendar month
in the Term and such apportioned sum shall be paid on the Commencement Date.
(b) Additional Rent. Commencing on the Commencement Date, Tenant
shall pay to Landlord, as Additional Rent, in the manner more particularly set
forth
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below, Tenant's Proportionate Share of Annual Operating Costs (as defined below)
for the Property to the extent same exceeds Tenant's Proportionate Share of
Annual Operating Costs for the Base Year:
i) Annual Operating Costs. The term "Annual Operating Costs"
shall mean all costs Landlord incurs from owning, operating and maintaining the
Building and the lot or tract of land on which it is situated (the "Property").
Annual Operating Costs shall include, by way of example rather than limitation:
insurance costs, including premiums; fees; Impositions (defined below); costs
for repairs, maintenance and service contracts; management fees; landscaping;
snow removal; governmental permits fees; costs of compliance with governmental
orders and regulations; administrative and overhead expenses; costs of
furnishing water, sewer, electricity, gas, fuel, and other utility services, for
use in common areas of the Building and Property; and the cost of janitorial
service and trash removal; excluding, however, from Annual Operating Costs the
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following: costs which are treated as capital expenditures (except as provided
in Section 10(b)) under generally accepted accounting principles; mortgage debt
or ground rents incurred by Landlord as owner of the Property; income, excess
profits, corporate capital stock or franchise tax imposed or assessed upon
Landlord, unless such tax or any similar tax is levied or assessed, in lieu of
all or any part of any currently existing Imposition or an increase in any
currently existing Imposition; leasing commissions, accountants', consultants'
or attorneys' fees, costs and disbursement and other expenses incurred in
connection with negotiations or disputes with tenants or prospective tenants or
associated with the enforcement of any leases or the defense of Landlord's title
to or interest in the Building in connection with any proceedings involving real
property taxes other than disputes regarding tax assessment and reduction of
real property taxes; costs of construction of the Building and related
facilities and correction of defects in construction of the Building (including
permit, license and inspection fees); costs of any items or services sold or
provided to tenants (including Tenant) for which Landlord is entitled to be
reimbursed by such tenants or which are not generally provided to all tenants of
the Building; fees and higher interest charges caused by Landlords refinancing
the Building; all repairs to the interior of the Building of a structural nature
(not made necessary by unusual use by Tenant); costs incurred due to violation
by Landlord or any tenant of the terms and conditions of any lease; overhead and
profit increment paid to subsidiaries or affiliates of Landlord, or to any party
as a result of a noncompetitive selection process, for management or other
services on or to the Building or for supplies or other materials, to the extent
that the costs of such services, supplies or materials exceed the costs that
would have been paid had the services, supplies or materials been provided by
unaffiliated parties on a competitive basis; general overhead and administrative
expenses except salaries of on-site property manager, management secretary and
maintenance man; any compensation paid to clerks, attendants or other persons in
commercial concessions operated by Landlord, rentals and other related expenses
incurred in leasing air conditioning systems, elevators or other equipment
ordinarily considered to be for a capital nature, except equipment which is used
in providing janitorial services and which is not affixed to the Building; all
items and services for which Tenant reimburses Landlord or pays third persons or
which
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Landlord provides selectively to one or more tenants or occupants of the
Building (other than Tenant) without reimbursement; commissions, advertising,
and promotional expenditures; costs incurred in managing or operating any
parking facilities; nor any other expense which under generally accepted
accounting principles and practice would not be considered a normal maintenance
or repair expense. "Impositions" shall mean all levies, taxes, assessments,
charges, imposts, and burdens, of whatever kind and nature, ordinary and
extraordinary, which are assessed or imposed during the Term by any federal,
state or municipal government or public authority or under any law, ordinance or
regulation thereof or pursuant to any recorded covenants or agreements upon or
with respect to the Property or any part thereof, any improvements thereto, any
personal property necessary to the operation thereof and owned by Landlord or
this Lease. If under the requirements of any state or local law, a new
Imposition is imposed upon Landlord which Tenant is prohibited by law from
paying, Landlord may, as its election, terminate this Lease by giving written
notice thereof to Tenant.
ii) Annual Operating Costs - Expense Statement and
Reconciliation. For and with respect to each calendar year of the Term (and any
renewals or extensions thereof) there shall accrue, as Additional Rent payable
hereunder, an amount equal to the product of Tenant's Proportionate Share and
the amount of Annual Operating Costs for such year (appropriately pro-rated for
any partial calendar year included within the beginning or end of the Term).
(1) Landlord shall submit to Tenant a statement as soon as
reasonably possible after the beginning of each calendar year of the Term, the
following:
(a) a statement setting forth (i) the Annual Operating
Costs for the previous calendar year of the Term and (ii) a calculation of
Tenant's Proportionate Share of the Annual Operating Costs for the previous
calendar year (the "Expense Statement"); and
(b) a statement of Landlord's good faith estimate of the
Annual Operating Costs for the current calendar year and (2) a calculation of
Tenant's Proportionate Share of the Annual Operating Costs for the current
calendar year ("Tenant's Estimated Share").
(2) Beginning with the next installment of Fixed Basic Rent
due after the delivery of the aforesaid statements to Tenant, Tenant shall pay
to Landlord, on account of its Proportionate Share of the Annual Operating
Costs, the following:
(a) a sum equal to the product of one-twelfth (1/12) of
Tenant's Estimated Share and the number of calendar months elapsed during the
current calendar year up to and including the month payment is made, plus any
amounts due from Tenant to Landlord on account of Annual Operating Costs for any
prior period(s) of time, less
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(b) a sum equal to the amount, if any, by which the sum of
all payments made by Tenant to Landlord on account of Annual Operating Costs for
the previous calendar year exceed those actually specified in the Expense
Statement.
(3) On the first day of each succeeding calendar month until
such time as Tenant receives a new Expense Statement and statement of Tenant's
Estimated Share, Tenant shall pay to Landlord, on account of its Proportionate
Share of Annual Operating Costs, one-twelfth (1/12) of the then current Tenant's
Estimated Share. Any payment due from Tenant to Landlord, or any refund due from
Landlord to Tenant, on account of Annual Operating Costs not yet determined as
of the expiration of the Term shall be made within thirty (30) days after
submission to Tenant of the next Expense Statement.
c) Disputes. Unless Tenant, within (30) days after any
statement of Additional Rent is furnished, shall give notice to Landlord that
Tenant disputes said statement, specifying in detail the basis for such dispute,
each statement furnished to Tenant by Landlord under any provision of this
Section shall be conclusively binding upon Tenant as to the particular
Additional Rent due from Tenant for the period represented thereby; provided,
however, that additional amounts due may be required to be paid by any
supplemental statement furnished by Landlord. Tenant shall have the right at
reasonable times to examine the records used in making the aforestated
determinations, upon written notice in advance; provided however, such
disputed amount shall have been paid by Tenant to Landlord. In the event any
such examination shall reveal an adverse variance in excess of 10% of the total
operating expenses of which Tenant is required to pay their Proportionate Share,
Landlord shall reimburse Tenant for the reasonable cost of such examination
within thirty (30) days after demand. Tenant shall make all payments of
Additional Rent without delay and regardless of any pending dispute over the
amount of Additional Rent that is due in accordance with the statements
furnished by Landlord. Landlord shall have the right to retain Tenant's
security deposit until all Additional Rent payable by Tenant is determined and
paid.
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d) Independent Covenant; Survival. Tenant's covenant to pay
Rent is independent of any other covenant, agreement, term or condition of this
Lease. Without limitation of any obligation of Tenant under this Lease which
shall survive the expiration of the Term, the obligation of Tenant to Pay Rent
shall survive the expiration of the of the Term.
7. Insurance.
a) Liability. Tenant, at Tenant's sole cost and expense, shall
maintain and keep insurance in effect throughout the Term against liability for
bodily injury (including death) and property damage in or about the Premises or
the Property under a policy of comprehensive general public liability insurance,
with such limits as to each as may be reasonably required by Landlord from time
to time, but not less than $2,000,000.00 for each person and $5,000,000.00 in
the aggregate for bodily injury (including death) to more than one (1) person
and $2,000,000.00 for property damage. The policies of comprehensive general
public liability insurance shall name Landlord and Tenant (and if requested, any
mortgagee of Landlord) as the insured parties. Each such policy shall provide
that it shall not be cancelable without at least thirty (30) days prior written
notice to Landlord and to any mortgagee named in an endorsement thereto and
shall be issued by an insurer and in a form satisfactory to Landlord. At least
ten (10) days prior to the Commencement Date, and thereafter upon Landlord's
request, a certificate of insurance shall be delivered to Landlord proving
compliance with the foregoing requirements. If Tenant shall fail, refuse or
neglect to obtain or to maintain any insurance that it is required to provide or
to furnish Landlord with satisfactory evidence of coverage on any such policy
upon demand, Landlord shall have the right to purchase such insurance. All
payments made by Landlord for such insurance shall be recoverable by Landlord
from Tenant, together with interest thereon, as Additional Rent promptly upon
demand. In addition to the foregoing, Landlord shall maintain comprehensive
general public liability insurance with coverage amounts not less than the
amounts of coverage Tenant is required to maintain hereunder. Notwithstanding
anything contained herein to the contrary, Tenant may self-insure all of its
personal situated within the Premises against property damage and destruction.
b) Increase of Premiums. Tenant will not do anything or fail
to do anything or permit anything to be done which will cause the cost of
Landlord's insurance to increase or which will prevent Landlord from procuring
insurance (including but not limited to public liability insurance) from
companies, and in a form, satisfactory to Landlord. If any breach of this
subsection (c) by Tenant shall cause the rate of fire or other insurance to be
increased, Tenant shall pay the amount of such increase as Additional Rent
promptly upon demand. If Tenant does anything or fails to do anything or permits
anything to be done for which insurance cannot be obtained, and upon twenty five
(25) days prior written notice to Tenant, Tenant fails to procure replacement
insurance in a form and from a carrier satisfactory to Landlord, Landlord may
terminate this Lease. Landlord shall provide Tenant with any notice received by
Landlord relating to any increase in the cost of Landlord's insurance or any
notice of cancellation or denial
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of insurance within three (3) days of Landlord's receipt of such notice.
8. Repairs and Maintenance.
a) Tenant shall, throughout the Term and at Tenant's sole cost
and expense, keep and maintain the Premises in a neat and orderly condition;
and, upon expiration of the Term, Tenant shall leave the Premises in good order
and condition, ordinary wear and tear, damage by fire or other casualty (which
fire or other casualty has not occurred through the negligence of Tenant or
those claiming under Tenant or their agents, employees or invitees,
respectively) alone excepted, and for that purpose and except as stated, Tenant
will make all necessary repairs and replacements. Tenant shall not permit any
waste, damage or injury to the Premises. Tenant shall not use or permit the use
of any portion of the common areas for other than their intended use as
specified by the Landlord from time to time.
b) Landlord shall, throughout the Term, make all necessary
repairs to the structural elements of the Premises including the roof, HVAC and
hot water systems servicing the Premises and other improvements located on the
Property; provided, however, that Landlord shall have no responsibility to make
any repairs unless and until Landlord receives written notice of the need for
such repair. Landlord shall undertake all such necessary repairs within three
(3) business days and shall proceed with all due diligence to complete such
repairs in an expeditious manner. Landlord shall keep and maintain all common
areas of the Property and any sidewalks, parking areas, curbs and access ways
adjoining the Property in a clean and orderly condition, free of accumulation of
dirt and rubbish and shall keep and maintain all landscaped areas within the
Property in a neat and orderly condition.
c) Notwithstanding the foregoing, repairs and replacements to
the Premises and the Property an-sing out of or caused by Tenant's use, manner
of use or, occupancy of the Premises, by Tenants installation of alterations,
additions, improvements, trade fixtures or equipment in or upon the Premises or
by any act or omission of Tenant or any employee, agent, contractor or invitee
of Tenant shall be made at Tenant's sole cost and expense and Tenant shall pay
Landlord the cost of any such repair or replacement, as Additional Rent, upon
demand.
9. Utilities and Services.
a) Landlord shall furnish the Premises with 3 phase 480 volt
electricity, an adequate heating and air conditioning system and an adequate hot
water system for the normal use and occupancy of the Premises. A separate meter
will be installed at Landlord's expense and Tenant shall pay for the consumption
of such utilities based upon its metered usage. Tenant shall pay all bills for
separately metered utility usage directly to the service provider and any non-
payment or late payment of such utility bills shall be deemed a default under
the terms of this Lease.
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b) Within the common areas of the Building, Landlord shall
furnish reasonable: (i) landscaping, (ii) parking lot maintenance, (iii) common
area maintenance and (iv) snow removal. Tenant shall be responsible for its
Proportionate Share of such services in accordance with Section 6(b) hereof.
Notwithstanding the foregoing, Tenant shall provide janitorial service to the
Premises, provided, however, Landlord shall be permitted to undertake such
janitorial services upon written notice to Tenant in the event Landlord
determines in its reasonable discretion that Tenant is not providing adequate
services to the Premises. In such event, Tenant shall pay for such services as
Additional Rent.
c) Landlord shall not be liable for any damages to Tenant
resulting from the quality, quantity, failure, unavailability or disruption of
any services beyond the reasonable control of Landlord and the same shall not
constitute a termination of this Lease or an actual or constructive eviction or
entitle Tenant to an abatement of rent. Landlord shall not be responsible for
providing any services not specifically provided for in this Lease.
10. Governmental Regulations.
a) Landlord and Tenant shall comply with all laws, ordinances,
notices, orders, rules, regulations and requirements of all federal, state and
municipal government or any department, commission, board of officer thereof, or
of the National Board of Fire Underwriters or any other body exercising similar
functions, relating to the Premises or to the use or manner of use of the
Property. Tenant shall not knowingly do or commit, or suffer to be done or
committed anywhere in the Building, any act or thing contrary to any of the
laws, ordinances, regulations and requirements referred to in this Section.
Tenant shall give Landlord prompt written notice of any accident in the Premises
arid of any breakage, defect or failure in any of the systems or equipment
servicing the Premises or any portion of the Premises.
b) Tenant shall pay its Proportionate Share of the cost of
capital improvements which Landlord shall install or construct in compliance
with governmental requirements which take effect after the commencement of the
Term hereof. Tenant's Proportionate Share shall be determined based upon the
estimated life of the capital investment item, determined by Landlord in
accordance with generally accepted accounting principles, and shall include a
cost of capital funds adjustment equal to nine percent (9%) per year on the
unamortized portion of all such costs. Tenant shall only have to pay for the
portion of the useful life of the capital improvement which falls within the
Term. Tenant shall thus make payments in equal annual installments for such
capital improvements until the Term expires or until the cost of the improvement
has been fully paid for, whichever first occurs; such payments shall be computed
by Landlord at the time of installation of the capital improvement in the same
manner as Landlord makes computations of Tenant's share of the annual operating
costs pursuant to Section 6(b)(ii).
c) Tenant shall pay all taxes imposed upon Tenant's
furnishings, trade
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fixtures, equipment or other personal property.
11. Signs. Except for signs which are located wholly within the interior
of the Premises and which are not visible from the exterior of the Premises,
Tenant shall not place, erect, maintain or paint any signs upon the Premises or
the Property unless the design of such sums are approved by Landlord in writing
which approval shall not be unreasonably withheld or delayed and comply with all
applicable governmental rules, regulating ordinances or other statutes. Tenant
shall be solely responsible for all costs and expenses associated with the
erection of any signs upon the Premises and shall be obligated to obtain and
provide to Landlord any and all necessary permits prior to the placement or
erection of such signs.
12. Alterations, Additions and Fixtures.
a) Tenant shall have the right to install in the Premises any
trade fixtures; provided, however, that no such installation and no removal
thereof shall be permitted which affects any structural component of the
Building or Premises and that Tenant shall repair and restore any damage or
injury to the Premises or the Property caused by installation or removal.
b) Tenant shall not make or permit to be made any alterations,
improvements or additions to the Premises or Property without on each occasion
first presenting plans and specifications to Landlord and obtaining Landlord's
prior written consent, which shall not be unreasonably withheld or delayed, but
may be conditioned upon compliance with reasonable requirements of Landlord
including, without limitation, the filing of mechanics' lien waivers by Tenant's
contractors and the submission of written evidence of adequate insurance
coverage naming Landlord as an additional insured thereunder. If Landlord
consents to any proposed alterations, improvements or additions or Tenant's
contractor performs any of the work identified in Section 3 of this Lease
Agreement, then Tenant shall make the proposed alterations, improvements and
additions at Tenants sole cost and expense provided that: (i) Tenant supplies
any necessary permits; (ii) such alterations and improvements do not, in
Landlord's judgment, impair the structural strength of the Building or any other
improvements or reduce the value of the Property; (iii) Tenant takes or causes
to be taken all steps that are otherwise required by Section 13 of this Lease
and that are required or permitted by law in order to avoid the imposition of
any mechanic's, laborers or materialman's lien upon the Premises or the
Property; (iv) Tenant uses a contractor approved by Landlord; (v) the occupants
of the Building and of any adjoining real estate owned by Landlord are not
annoyed or disturbed by such work; (vi) the alterations, improvements or
additions shall be installed in accordance with the approved plans and
specifications and completed according to a construction schedule approved by
Landlord; and (vii) Tenant provides insurance of the types and coverage amounts
required by Landlord. Any and all alterations, improvements and additions to the
Premises which are constructed, installed or otherwise made by Tenant shall be
the property of Tenant until the expiration or sooner termination of this Lease;
at that time all such alterations and additions shall remain on the Premises
10
and become the property of Landlord without payment by Landlord unless, upon the
termination of this Lease, Landlord instructs Tenant in writing to remove the
same in which event Tenant will remove such alterations, improvements and
additions, and repair and restore any damage to the Property caused by the
installation or removal. Notwithstanding anything to the contrary contained in
this Lease, Landlord may withhold its approval to any proposed alterations,
additions or improvements to the Premises in its absolute and sole discretion
with respect to any such alteration, addition or improvement which Landlord
determines involves any modification to the Building's exterior or its
structural, electrical, mechanical or plumbing systems, or any components
thereof.
13. Mechanic's Liens. Tenant shall promptly pay any contractors and
materialmen who supply labor, work or materials to Tenant at the Premises or the
Property so as to minimize the possibility of a lien attaching to the Premises
or the Property. Tenant shall take all steps permitted by law in order to avoid
the imposition of any mechanic's, laborer's or materialman's lien upon the
Premises or the Property. Should any such lien or notice of lien be filed for
work performed for Tenant other than by Landlord, Tenant shall cause such lien
or notice of lien to be discharged of record by payment, deposit, bond or
otherwise within fifteen (I 5) days after the filing thereof or after Tenant's
receipt of notice thereof, whichever is earlier, regardless of the validity of
such lien or claim. If Tenant shall fail to cause such lien or claim to be
discharged and removed from record within such fifteen (I 5) day period, then,
without obligation to investigate the validity thereof and in addition to any
other right or remedy Landlord may have, Landlord may, but shall not be
obligated to, contest the lien or claim or discharge it by payment, deposit,
bond or otherwise; and Landlord shall be entitled to compel the prosecution of
an action for the foreclosure of such lien by the lienor and to pay the amount
of the judgment in favor of the lienor with interest and costs. Any amounts so
paid by Landlord and all costs and expenses including, without limitation,
attorneys' fees incurred by Landlord in connection therewith, together with
interest at a rate of nine percent (9%) per annum from the respective dates of
Landlord's making such payment or incurring such cost or expense, which shall
constitute Additional Rent payable hereunder promptly upon demand therefor.
Nothing in this Lease is intended to authorize Tenant to do or cause any work or
labor to be done or any materials to be supplied for the account of Landlord,
all of the same to be solely for Tenant's account and at Tenant's risk and
expense. Further, notwithstanding anything to the contrary contained in this
Lease, nothing contained in or contemplated by this Lease shall be deemed or
construed in any way to constitute the consent or request by Landlord for the
performance of any work or services or the furnishing of any materials for which
any lien could be filed against the Premises or the Building or the Property or
any part of any thereof, nor as giving Tenant any right, power or authority to
contract or permit the performance of any work or services or the furnishing of
any materials for which any lien could be filed against the Premises, the
Building, the Property or any part of any thereof. Throughout this Lease the
term "mechanic's lien" is used to include any lien, encumbrance or charge levied
or imposed upon the Premises or the Property or any interest therein or income
therefrom on account of any mechanic's, laborer's or materialman's lien or
arising out of any debt or liability to or any claim or demand of any
contractor, mechanic, supplier, materialman or
11
laborer and shall include without limitation any mechanic's notice of intention
given to Landlord or Tenant, any stop order given to Landlord or Tenant, any
notice of refusal to pay naming Landlord or Tenant and any injunctive or
equitable action brought by any person entitled to any mechanic's lien.
14. Landlord's Right of Entry.
a) Tenant shall permit Landlord and the authorized
representatives of Landlord and of any mortgagee or any prospective mortgagee to
enter tile Premises at all reasonable times, upon twenty four (24) hour notice
to Tenant (except in the case of an emergency), for the purpose of (i)
inspecting the Premises or (ii) making any necessary repairs to the Premises or
to the Building and performing any work therein. During the progress of any work
on the Premises or the Building, Landlord will attempt not to inconvenience
Tenant, but shall not be liable for inconvenience, annoyance, disturbance, loss
of business or other damage to Tenant by reason of making any repair or by
bringing or storing materials, supplies, tools and equipment in the Premises
during the performance of any work, and the obligations of Tenant under this
Lease shall not be thereby affected in any manner whatsoever.
b) Landlord shall have the right at all reasonable times to,
with twenty four (24) hour prior notice to Tenant, enter and to exhibit the
Premises for the purpose of inspection or showing the Premises in connection
with a sale or mortgage and, during the last twelve (12) months of the Term, to
enter upon and to exhibit the Premises to any prospective tenant.
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15. Damage by Fire or Other Casualty.
a) If the Premises or Building is damaged or destroyed by fire
or other casualty, Tenant shall promptly notify Landlord whereupon Landlord
shall, subject to the consent of Landlord's present or future mortgagee and to
the conditions set forth in this Section 15, repair, rebuild or replace such
damage and restore the Premises to substantially the same condition as the
Premises were in immediately prior to such damage or destruction (except for
the Tenant Work). Notwithstanding the foregoing, if the Premises is destroyed or
damaged to the extent that in Landlord's reasonable judgment the Premises cannot
be repaired or restored within one hundred twenty (120) days after such
casualty, Landlord or Tenant may, subject to the rights of Landlord's mortgagee,
terminate this Lease by written notice to the other within thirty (30) days
after the date of such casualty. In the event Tenant disagrees with Landlord's
determination that the Premises can be restored or repaired within the aforesaid
one hundred and twenty (120) day period, then Tenant may, at its sole cost and
expense, employ its own professional engineer or other qualified person to
review such determination. If such person determines that it is unlikely that
the restoration can be completed within such period and the Landlord, Tenant and
Tenant's professional engineer cannot agree as to whether such restoration work
can be completed within such period, then the parties shall employ a mutually
agreeable third party professional engineer or other qualified person to make
such determination which determination shall be binding upon the parties. In the
event the third party professional engineer or other qualified person determines
that the restoration work is unlikely to be completed within such one hundred
twenty (120) day period, then either Landlord or Tenant shall be entitled to
terminate this Lease upon written notice to the other party.
b) The repair, rebuilding or replacement work shall be
commenced promptly and completed with due diligence, taking into account the
time required by Landlord to effect a settlement with, and procure insurance
proceeds from, the insurer, and for delays beyond Landlord's reasonable control.
c) The net amount of any insurance proceeds recovered by reason
of the damage or destruction of the Building (meaning the gross insurance
proceeds excluding proceeds received pursuant to a rental coverage endorsement
and the cost of adjusting the insurance claim and collecting the insurance
proceeds) shall be applied towards the cost of restoration and that Landlord
shall only be obligated to restore such damage or destruction to the extent of
the proceeds of fire and other extended coverage insurance policies. In the
event such proceeds will not be sufficient to cover the cost of restoration or
will not be made available to permit Landlord to timely complete the restoration
work, then Landlord shall notify Tenant that it will not be able to complete
such restoration work within such one hundred and twenty (120) day period and
upon such notice either party may elect to terminate this Lease upon written
notice to the other.
d) Landlord's obligation or election to restore the Premises
under this Section shall be subject to the terms of any present or future
mortgage affecting the
13
Premises and to the mortgagee's consent if required in the mortgage and shall
not, in any event, include the repair, restoration or replacement of the
fixtures, improvements, alterations, furniture or any other property owned,
installed, made by, or in the possession of Tenant.
e) Landlord shall at all times maintain insurance against loss
or damage to the Building by fire and such other casualties as may be included
within fire and extended coverage insurance or all-risk insurance in an amount
not less than the replacement cost of the Building, together with a rental
coverage endorsement or other comparable form of coverage. If Tenant is
dispossessed of the Premises due to fire or other casualty, Tenant will receive
an abatement of its Fixed Basic Rent and Additional Rent during the period
Tenant is dispossessed.
16. Non-Abatement of Rent. Except as otherwise expressly provided in
subsection 15(e) and as to condemnation in subsections 18(a) and (b) there shall
be no abatement or reduction of the Fixed Basic Rent, Additional Rent or other
sums payable hereunder for any cause whatsoever and this Lease shall not
terminate, nor shall Tenant be entitled to surrender the Premises, in the event
of fire, casualty or condemnation or any default by Landlord under this Lease.
17. Indemnification
a) Unless such loss, costs or damages were caused by negligence
or willful misconduct of Landlord, its employees, agents or contractors, Tenant
hereby agrees to indemnify, defend and hold the Landlord and its employees,
agents and contractors harmless from any loss, costs and damages (including
reasonable attorney's fees and costs) suffered by Landlord, its agents,
employees or contractors, as a result of any claim by a third party, its agents,
employees or contractors arising from Tenant's occupancy of the Premises. Tenant
shall have the right to designate counsel acceptable to Landlord, such approval
not to be unreasonably withheld, to assume the. defense of any such third party
claim on behalf of itself and Landlord. Landlord shall not have the right to
settle any claim without the consent of Tenant. This indemnity shall survive the
expiration or termination of this Lease.
b) If Landlord brings any action under this Lease Agreement,
Tenant agrees in each case to pay Landlord's reasonable attorney's fees and
other costs and expenses incurred by Landlord in connection therewith; provided,
however, the Landlord prevails in such action.
14
18. Condemnation.
a) Termination. If (i) all of the Premises covered by a
condemnation; or (ii) any of the Premises is covered by a condemnation and the
remaining part is insufficient in Tenant's sole judgment for the reasonable
operation therein of Tenant's business; or (iii) subject to the provisions of
subsection 18(b)(1) hereof, any of the Property is covered by a condemnation
and, in Landlord's sole opinion, it would be impractical or the condemnation
proceeds are insufficient to restore the remainder of the Property; then, in any
such event, this Lease shall terminate and all obligations hereunder shall cease
as of the date upon which possession is taken by the condemnor. Landlord shall
give Tenant written notice of any notice of condemnation that it receives within
ten (10) days of the date of receipt of such notice by Landlord. Upon such
termination the Fixed Basic Rent and all Additional Rent herein reserved shall
be apportioned and paid in full Tenant to Landlord to that date and all such
rent prepaid for periods beyond that date shall forthwith be repaid by Landlord
to Tenant.
b) Partial Condemnation.
i) If there is a partial condemnation and Landlord decides
to terminate pursuant to subsection 18(a)(iii) or if Tenant elects to terminate
pursuant to Section 18(a)(ii) hereof then Tenant may require Landlord, except
during the last two (2) years of the Tenn, to withdraw its notice of termination
by: [A] giving Landlord written notice thereof within ten (10) days from
transmission of Landlord's notice to Tenant of Landlord's intention to
terminate, [B] agreeing to pay the cost of restoration in excess of the
condemnation proceeds reduced by those sums expended by Landlord in collecting
the condemnation proceeds, and [C] giving Landlord adequate security for such
payment within such ten (10) day period.
ii) If there is a partial condemnation and this Lease has
not been terminated pursuant to subsection (a) hereof, Landlord shall restore
the Building and the improvements which are part of the Premises to a condition
and size as nearly comparable as reasonably possible to the condition and size
thereof immediately prior to the date upon which possession shall have been
taken by the condemnor; provided, however, that Landlord shall only be obligated
to restore such damage from condemnation to the extent possible with the award
damage. If the condemnation proceeds are more than adequate to cover the cost of
restoration and the Landlord's expenses in collecting the condemnation proceeds,
any excess proceeds shall be retained by Landlord or applied to repayment of any
mortgage secured by the Premises.
iii) If there is a partial condemnation and this Lease has
not been terminated by the date upon which the condemnor obtains possession, the
obligations of Landlord and Tenant under this Lease shall be unaffected by such
condemnation except that there shall be an equitable abatement for the balance
of the Term of the Fixed Basic Rent according to the value of the Premises
before and after the date upon which the condemnor takes possession. In the
event that the parties are unable to agree upon the
15
amount of such abatement, either party may submit the issue to arbitration.
c) Award. In the event of a condemnation affecting Tenant,
Tenant shall have the right to make a claim against the condemnor for removal
expenses and moving expenses, loss of business and any other claims Tenant may
have; provided and to the extent, however, that such claims or payments do not
reduce the sums otherwise payable by the condemnor to Landlord. Except as
aforesaid, Tenant hereby waives all claims against Landlord and against the
condemnor, and Tenant hereby assigns to Landlord all claims against the
condemnor including, without rotation, all claims for leasehold damages and
diminution in value of Tenants leasehold interest.
d) Temporary Taking. If the condemnor should take only the
right to possession for a fixed period of time or for the duration of an
emergency or other temporary condition not exceeding thirty (30) consecutive
days or sixty (60) days in any successive twelve (12) month period then,
notwithstanding anything hereinabove provided, this Lease shall continue in full
force and effect without any abatement of rent, but the amounts payable by the
condemnor with respect to any period of time prior to the expiration or sooner
termination of this Lease shall be paid by the condemnor to Landlord and the
condemnor shall be considered a subtenant of Tenant. Landlord shall apply the
amount received from the condemnor applicable to the rent due hereunder, net of
costs, to Landlord for the collection thereof, or as much thereof as may be
necessary for the purpose, toward the amount due from Tenant as rent for that
period; and, Tenant shall pay to Landlord any deficiency between the amount thus
paid by the condemnor and the amount of the rent, or Landlord shall pay to
Tenant any excess of the amount of the award over the amount of the rent.
19. Quiet Enjoyment. Tenant, upon paying the Fixed Basic Rent, Additional
Rent and other charges herein required and observing and keeping all covenants,
agreements and conditions of this Lease, shall quietly have and enjoy the
Premises during the Term without hindrance or molestation by anyone claiming by
or through Landlord, subject, however, to the exceptions, reservations and
conditions of this Lease.
20. Rules and Regulations. The Landlord hereby reserves the right to
prescribe, from time to time, at its sole discretion, reasonable rules and
regulations (herein called the "Rules and Regulations") attached hereto as
Exhibit B governing the use and enjoyment of the Premises and the remainder of
---------
the Property. The Rules and Regulations shall not materially interfere with the
Tenants use and enjoyment of the Premises in accordance with the provisions of
this Lease for the Permitted Use and shall not increase or modify Tenant's
obligations under this Lease. In the event of a conflict between the Lease
Agreement and such rules and regulations, the Lease Agreement shall control.
The Tenant shall comply at all times with the Rules and Regulations and shall
cause its agents, employees, invitees, visitors, and guests to do so.
21. Assignment and Sublease. Tenant may assign or sublease the within
Lease to any party subject to the following:
16
a) In the event Tenant desires to assign this Lease or sublease
all of the Premises to any other party, Tenant shall provide written notice of
the terms and conditions of such assignment or sublease to Landlord prior to the
effective date of any such sublease or assignment, and, prior to such effective
date, the Landlord shall have the option, exercisable by written notice to
Tenant within ten (10) business days of Landlord's receipt of written notice
from Tenant, to: (i) sublease such space from Tenant 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 all of the Premises ("Recapture Space") so that such
prospective subtenant or assignee shall then become the sole Tenant of Landlord
hereunder, or (iii) recapture the Recapture Space for Landlord's own use,
whereupon Tenant shall be fully released from any and all obligations hereunder
with respect to the Recapture Space.
b) In the event that the Landlord elects not to recapture the
Lease as hereinabove provided, the Tenant may nevertheless assign this Lease or
sublet the whole or any portion of the Premises, subject to the Landlord's prior
written consent, on the basis of the following terms and conditions:
i) The Tenant shall provide to the Landlord the name and
address of the assignee or subtenant.
ii) The assignee or subtenant shall assume, by written
instrument, all of the obligations of this Lease, and a copy of such assumption
agreement shall be furnished to the Landlord within ten (10) days of its
execution. Any sublease shall expressly acknowledge that said subtenant's
rights against Landlord shall be no greater than those of Tenant.
iii) The Tenant 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.
iv) In the event of a sublease of less than all of the
Premises, and the provisions of written notice thereof as set forth in Section
21 above, the Tenant shall be entitled to retain any net profit received from
such subleasing.
v) In any event, the acceptance by the Landlord of any
rent from the assignee or from any of the subtenants or the failure of the
Landlord to insist upon a strict performance of any of the terms, conditions and
covenants herein shall not release the Tenant herein, nor any assignee assuming
this Lease, from any and all of the obligations herein during and for the entire
Term of this Lease.
vi) Landlord shall require a Five Hundred Dollars ($500.00)
payment to cover its handling charges for each request for consent to any sublet
or
17
assignment prior to its consideration of the same. Tenant acknowledges that its
sole remedy with respect to any assertion that Landlord's failure to consent to
any sublet or assignment is unreasonable shall be the remedy of specific
performance and Tenant shall have no other claim or cause of action against
Landlord as a result of Landlord's actions in refusing to consent thereto.
c) If Tenant is a corporation other than a corporation whose
stock is listed and traded on a nationally recognized stock exchange, the
provisions of subsection a hereof shall apply to a transfer (however
accomplished, whether in a single transaction or in a series of related or
unrelated actions) 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 Tenant as if such
transfer of stock (or other mechanism) which results in a change of control of
Tenant were an assignment of this Lease, and if Tenant 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
Tenant is merged or consolidated or to which all or substantially all of
Tenant's assets are transferred or to any corporation which controls or is
controlled by Tenant or is under common control with Tenant, provided that in
the event of such merger, consolidation or transfer of all or substantially all
of Tenant's assets (1) the successor to Tenant has a net worth computed in
accordance with generally accepted accounting principles at least equal to the
greater of (1) the net worth of Tenant immediately prior to such merger,
consolidation or transfer, or (2) the net worth of Tenant herein named on the
date of this Lease, and (ii) proof satisfactory to Landlord of such net worth
shall have been delivered to Landlord at least ten (10) days prior to the
effective date of any such transaction.
d) In the event that any or all of Tenant'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 Tenant, or to Tenant as a debtor
in possession, and subsequently any or all of Tenant's interest in the Premises
and/or this Lease is offered or to be offered by Tenant or any trustee,
receiver, or other representative or agent of Tenant 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 Landlord (each such transaction being hereinafter
referred to as a "Disposition"), it is agreed that Landlord 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 Landlord in reasonable
detail of all of the terms and conditions of such Disposition within twenty (20)
days next following its determination to accept the
18
same but prior to accepting the same, and Grantor shall not make the Disposition
until and unless Landlord has failed or refused to accept such right (60) days
next following its receipt of the written notice as to Disposition, as set forth
herein. Landlord 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
Tenant's interest by such Disposition, and the exercise of the option by
Landlord shall be effected by notice to that effect sent to the Grantor, but
nothing herein shall require Landlord 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 Landlord. In the event Landlord 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 Landlord 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 Landlord hereunder.
e) Without limiting any of the provisions of this Section 21,
if pursuant to the Federal Bankruptcy Code (herein referred to as the "Code"),
or any similar law hereafter enacted having the same general purpose, Tenant 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
Landlord for the balance of the Term, together with simple interest calculated
at the rate of five percent (5%) per annum, as security for the full performance
of all of Tenant's obligations under this Lease, to be held and applied in the
manner specified for any security deposit required hereunder.
f) Except as specifically set forth above, no portion of the
Premises or of Tenant'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 Tenant, nor shall Tenant pledge its interest in this Lease
or in any security deposit required hereunder.
22. Tenant's Relocation. [Intentionally Omitted].
23. Subordination. This Lease and Tenant's rights hereunder shall be
subject and subordinate at all times in lien and priority to any first mortgage
or other primary encumbrance now or hereafter placed upon or affecting the
Property or the Premises, and to any second mortgage or encumbrance with the
consent of the first mortgagee, and to all renewals, modifications,
consolidations and extensions thereof, without the necessity of any further
instrument or act on the part of Tenant. Tenant shall execute and deliver upon
demand any further instrument or instruments confirming the subordination of
this Lease to the lien of any such other mortgage or to the lien of any such
first mortgage, if requested to do so by Landlord with the consent of the first
mortgagee, any other mortgagee, and any further
19
instrument or instruments of attornment that may be desired by any such
mortgagee or Landlord, provided, however, that any holder of such lien or
mortgage agrees not to disturb the use and occupancy of the Premises in
accordance with the terms of this Lease Agreement upon any foreclosure.
Notwithstanding the foregoing, any mortgagee may at any time subordinate its
mortgage to this Lease, without Tenant's consent, by giving notice in writing to
Tenant and thereupon this Lease shall be deemed prior to such mortgage without
regard to their respective dates of execution and delivery. In that event such
mortgagee shall have the same rights with respect to this Lease as though this
Lease had been executed prior to the execution and delivery of the mortgage and
had been assigned to such mortgagee. Landlord agrees that it will use best
efforts to obtain and deliver to Tenant a subordination, non-disturbance and
attornment agreement from the holder(s) of any mortgage or other security
interest affecting the Premises of Building. As of the date of this Lease, there
is no mortgage encumbering the Property.
24. Curing Tenant's Defaults. If Tenant defaults in the performance of any
its obligations hereunder, Landlord may, without any obligation to do so and in
addition to any other rights it may have in law or equity, elect to cure such
default on behalf of Tenant on or after the earlier of: (i) ten (10) days after
receipt of written notice (except in the case of emergency) by Tenant or (ii)
the due date for payment so as to avoid the assessment of any late charge or
penalty. Tenant shall reimburse Landlord upon demand for any sums paid or costs
incurred by Landlord in curing such default, including interest thereon from the
respective dates of Landlord's making the payments and incurring such costs,
which sums and costs together with interest thereon shall be deemed Additional
Rent payable with ten (10) days of demand.
25. Surrender.
a) At the expiration or earlier termination of the Term Tenant
shall promptly yield up the Premises and all improvements, alterations and
additions thereto, and all fixtures and equipment servicing the Premises in a
condition which is clean of garbage and debris and broom clean and in the same
condition, order and repair in which they are required to be kept throughout the
Term, ordinary wear and tear excepted provided however, Tenant shall be
permitted to remove all of its personalty located within the Premises.
b) If Tenant, or any person claiming through Tenant, continues
to occupy the Premises after the expiration or earlier termination of the Term
or any renewal thereof without prior written consent of Landlord, the tenancy
under this Lease shall become, at the option of Landlord, expressed in a written
notice to Tenant and not otherwise, either from month-to-month or for a period
of one (1) year, terminable by Landlord on thirty (30) days prior notice, under
the same terms and conditions set forth in this Lease; except, however, that the
Fixed Basic Rent during such continued occupancy shall be 150% of the amount set
forth in subsection 6(a) and Tenant shall indemnify Landlord for any loss or
damage incurred by reason of Tenant's failure to surrender the Premises.
Anything to the contrary notwithstanding, any holding over by Tenant without
Landlord's prior
20
written consent shall constitute a default hereunder and shall be subject to all
the remedies set forth in subsection 26(b) hereof.
26. Defaults-Remedies.
a) Defaults. It shall be an event of default under this Lease
if any one or more of the following events occurs:
i) Tenant fails to pay in full, when due and without demand,
any and all installments of Fixed Basic Rent or Additional Rent or any other
charges or payments due and payable under this Lease whether or not herein
included as rent.
ii) Tenant violates or fails to perform or otherwise breaches
any agreement, term, covenant or condition contained in this Lease.
iii) Tenant becomes insolvent or bankrupt in any sense or makes
an assignment for the benefit of creditors or if a petition in bankruptcy or for
reorganization or for an arrangement with creditors under any federal or state
law is filed by or against Tenant, or a xxxx in equity or other proceeding for
the appointment of a receiver or similar official for any of Tenant's assets is
commenced, or if any of the real or personal property of Tenant shall be levied
upon by any sheriff, marshal or constable; provided, however, that any
proceeding brought by anyone other than the parties to this Lease under any
bankruptcy, reorganization arrangement, insolvency, readjustment, receivership
or similar law shall not constitute an event of default until such proceeding,
decree, judgment or order has continued unstayed for more than sixty (60)
consecutive days.
iv) Any of the events enumerated in subsections (a)(i) through
(a)(iv) of this Section happen to any guarantor of this Lease.
b) Remedies. Upon the occurrence of an event of default under this
Lease, Landlord shall have all of the following rights:
i) Landlord may charge a late payment charge of five (5%)
percent of any amount owed to Landlord pursuant to this Lease which is not paid
within five (5) days of the due date which is set forth in the Lease or, if a
due date is not specified in this Lease, within thirty (30) days of the mailing
therefor by Landlord. If Landlord incurs a late charge in connection with any
payment which Tenant has failed to make within the times required in this Lease,
Tenant shall pay Landlord, in addition to such payment due, the full amount of
such late charge incurred by Landlord. Nothing in this Lease shall be construed
as waiving any rights of Landlord arising out of any default of Tenant, by
reason of Landlord's imposing or accepting any such late charge(s) and/or
interest; the right to collect such late charge(s) and/or interest is separate
and apart from any rights relating to remedies of Landlord after default by
Tenant including, without limitation, the rights and remedies of Landlord
provided herein.
21
ii) Landlord may accelerate the whole or any part of the Fixed
Basic Rent and all Additional Rent for the entire unexpired balance of the Term
of this Lease, as well as all other charges, payments, costs and expenses herein
agreed to be, paid by Tenant, and any Fixed Basic Rent or other charges,
payments, costs and expenses 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 Tenant
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.
iii) Landlord may re-enter the Premises and, at the option of
Landlord, remove all persons and all or any property therefrom, either by
summary dispossess proceedings or by any suitable action or proceeding at law,
without being. liable for prosecution or damages therefor, and Landlord may
repossess and enjoy the Premises. Upon recovering possession of the Premises by
reason of or based upon or arising out of a default on the part of Tenant,
Landlord may, at Landlord's option, either terminate this Lease or make such
alterations and repairs as may be necessary in order to relet the Premises and
may relet the Premises or any part or parts thereof, either in Landlord's name
or otherwise, for a term or terms which may, at Landlord's option, be less than
or exceed the period which would otherwise have constituted the balance of the
Term of this Lease and at such rent or rents and upon such other terms and
conditions as in Landlord's sole discretion may seem advisable and to such
person or persons as may in Landlord's discretion seem best; upon each such
reletting all rents received by Landlord from such reletting shall be applied as
follows: first, to the payment of any costs and expenses of such reletting,
including all costs of alterations and repairs; second, to the payment of any
indebtedness other than Fixed Basic Rent, Additional Rent or other charges due
hereunder from Tenant to Landlord; third, to the payment of Fixed Basic Rent,
Additional Rent and other charges due and unpaid hereunder; and the residue, if
any, shall be held by Landlord and applied in payment of future rent as it may
become due and payable hereunder. If rentals received from reletting during any
month are less than that to be paid during that month by Tenant, Tenant shall
pay any such deficiency to Landlord. Such deficiency shall be calculated and
paid monthly. No such re-entry or taking possession of the Premises or the
making of alterations or improvements thereto or the reletting thereof shall be
construed as an election on the part of Landlord to terminate this Lease unless
written notice of termination is given to Tenant. Landlord shall in no event be
liable in any way whatsoever for failure to relet the Premises or, in the event
that the Premises or any part or parts thereof are relet, for failure to collect
the rent thereof under such reletting. Notwithstanding any such reletting
without termination, Landlord may at any time thereafter elect to terminate this
Lease for such previous breach.
iv) Landlord may terminate this Lease and the Term without any
right on the part of Tenant to waive the forfeiture by payment of any sum due or
by other performance of any condition, term or covenant broken. Upon such
termination,
22
Landlord shall be entitled to recover, in addition to any and all sums and
damages for violation of Tenant's obligations hereunder in existence at the time
of such termination, damages for Tenant's default in an amount equal to the
amount of the Fixed Basic Rent and Additional Rent reserved for the balance of
the Term, as well as all other charges, payments, costs and expenses herein
agreed to be paid by Tenant all of which amount shall be immediately due and
payable from Tenant to Landlord upon demand therefor.
v) WHEN THIS LEASE AND THE TERM OR ANY EXTENSION OR RENEWAL
THEREOF SHALL HAVE BEEN TERMINATED ON ACCOUNT OF ANY DEFAULT BY TENANT, OR WHEN
THE TERM HAS EXPIRED, IT SHALL BE LAWFUL FOR ANY ATTORNEY OF ANY COURT OF RECORD
TO APPEAR AS ATTORNEY FOR TENANT AS WELL AS FOR ALL PERSONS CLAIMING BY, THROUGH
OR UNDER TENANT, AND TO FILE AN AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN
AMICABLE ACTION FOR JUDGMENT IN EJECTMENT AGAINST TENANT AND ALL PERSONS
CLAIMING BY, THROUGH OR UNDER TENANT FOR THE RECOVERY BY LANDLORD OF POSSESSION
OF THE PREMISES, FOR WHICH THIS LEASE SHALL BE A SUFFICIENT WARRANT; WHEREUPON,
IF LANDLORD SO DESIRES, AN APPROPRIATE WRIT OF POSSESSION MAY ISSUE FORTHWITH,
WITHOUT ANY PRIOR WRIT OR PROCEEDING WHATSOEVER, AND PROVIDED THAT IS FOR ANY
REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED IT SHALL BE DETERMINED AND
POSSESSION OF THE PREMISES REMAIN IN OR BE RESTORED TO TENANT, LANDLORD SHALL
HAVE THE RIGHT FOR THE SAME DEFAULT AND UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS,
OR UPON THE TERMINATION OF THIS LEASE OR TENANT'S RIGHT OF POSSESSION AS
HEREINBEFORE SET FORTH, TO BRING ONE OR MORE FURTHER ACTIONS IN EJECTMENT AS
HEREINBEFORE SET FORTH TO CONFESS JUDGMENT FOR THE RECOVERY OF POSSESSION OF THE
PREMISES.
c) Non-Waiver. No waiver by Landlord of any breach by Tenant of any
of Tenant's obligations, agreements or covenants herein shall be a waiver of any
subsequent breach or of any other obligation, agreement or covenant, nor shall
any forbearance by Landlord to seek a remedy for any event of default by Tenant
be a waiver by Landlord of any rights and remedies with respect to such or any
subsequent event of default.
d) Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to Landlord is intended to be exclusive of any other
right or remedy provided herein or by law, but each shall be cumulative and in
addition to every other right or remedy given herein or now or hereafter exist-
ing at law or in equity or by statute.
27. Condition of Premises. Tenant represents that the Property and the
Premises, the zoning thereof, the street or streets, sidewalks, parking areas,
curbs and
23
access ways adjoining them, any surface conditions thereof, and the present uses
and non-uses thereof, have been examined by Tenant and Tenant accepts them in
the condition or state in which they now are, or any of them now is, without
relying on any representation, covenant or warranty, express or implied, in fact
or in law, by Landlord and without recourse to Landlord, the nature, condition
or usability thereof or the use or uses to which the Premises and the Property
or any part thereof may be put under present zoning ordinances or otherwise,
except as to work to be performed by Landlord pursuant to Section 3 and except
as to latent defects in such work. Tenant's occupancy of the Premises shall
constitute acceptance of the Work performed by Landlord pursuant to Section 3.
28. Hazardous Substances.
a) Landlord and Tenant shall not cause or allow the generation,
treatment, storage or disposal of Hazardous Substances on or near the Premises
or Property. "Hazardous Substances" shall mean (i) any hazardous substance as
that term is defined in the Comprehensive Environmental Response, Compensation
and Liability Act ("CERCLA"), 42 U.S.C. 9601 et seq., as amended, (ii) any
-- ---
hazardous waste or hazardous substance as those terms are defined in any local,
state or Federal law, regulation or ordinance not inapplicable to the Premises
and Property, or (iii) petroleum including crude oil or any fraction thereof
except that Tenant will be allowed to use Hazardous Substances in connection
with its business operations. Tenant shall use, store, handle and dispose of
such Hazardous Substances in furtherance of its business in accordance with all
applicable Federal, state and local laws, regulations and ordinances.
b) Landlord and Tenant agree to indemnify, defend and hold harmless
the other, its employees, agents, successors, and assigns, from and against any
and all damage, claim, liability, or loss, including reasonable attorneys' and
other fees,. arising out of or in any way connected to the generation,
treatment, storage or disposal of Hazardous Substances by Landlord or Tenant,
its employees, agents, contractors, or invitees, on or near the Premises or
Property. Such duty of indemnification shall include, but not be limited to
damage, liability, or loss pursuant to all Federal, state and local
environmental laws, rules and ordinances, strict liability and common law.
c) Landlord and Tenant agree to notify each other immediately of any
disposal of Hazardous Substances in the Premises or Property (other than those
used by Tenant as set forth and in accordance with Section 28(a) above), of any
discovery of Hazardous Substances in the Premises, or of any notice by a
governmental authority or private party alleging or suggesting that a disposal
of Hazardous Substances on or near the Premises or Property may have occurred.
Furthermore, Landlord and Tenant agree to provide the other with full and
complete access to any documents or information in its possession or control
relevant to the question of the generation, treatment, storage, or disposal of
Hazardous Substances on or near the Premises.
d) Landlord represents and warrants that, to the best of its
knowledge,
24
there are no Hazardous Substances in, under or about the Building.
29. Recording. Neither this Lease nor a memorandum of this Lease shall be
recorded in any public records without the written consent of Landlord.
30. Brokers' Commission. Landlord and Tenant represent and warrant to the
other that the Brokers (as defined in the Preamble) are the sole brokers with
whom Landlord and Tenant have negotiated in bringing about this Lease and
Landlord and Tenant agree to indemnify and hold harmless the other 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
Landlord and Tenant. In the event the transaction contemplated by this Lease
successfully closes, the Landlord shall Pay Brokers any and commissions due to
the Brokers in accordance with separate agreements between Landlord and Broker.
In no event shall Landlord's mortgagee(s) have any obligation to any broker
involved in this transaction.
31. Notices. All notices, demands, requests, consents, certificates, and
waivers required or permitted hereunder from either Party to the other shall be
in writing and sent by United States certified mail, return receipt requested,
postage prepaid, or by recognized overnight courier, or by facsimile
transmission addressed as follows:
If to Tenant:
Xx. Xxxxx Xxxxxxx
Chief Financial Officer
Orapharrna, Inc.
0000 Xxxxx 00 Xxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
with a copy to:
Xxxxx Xxxxxxxx, Esquire
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
If to Landlord:
Equivest Management Corporation, Agent
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
25
with a copy to:
Xxxxxxx X. Xxxxx, Esquire
Xxxxxxx Xxxxxx Gold and Xxxxx
Suite 0000, Xxx Xxxx Xxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
Either party may at any time, in the manner set forth for giving notices to the
other, specify a different address to which notices to it shall thereafter be
sent.
32. Irrevocable Offer: No Option. Although Tenant's execution of this
Lease shall be deemed an offer irrevocable by Tenant, the submission of this
Lease by Landlord to Tenant for examination shall not constitute a reservation
of or option for the Premises. This Lease shall become effective only upon
execution thereof by both parties and delivery thereof to Tenant.
33. Inability to Perform. If Landlord is delayed or prevented from
performing any of its obligations under this Lease by reason of strike, labor
troubles, or any cause whatsoever beyond Landlord's control, the period of such
delay or such prevention shall be deemed added to the time herein provided for
the performance of any such obligation by Landlord.
34. Survival. Notwithstanding anything to the contrary contained in this
Lease, the expiration of the Term of this Lease, whether by lapse of time or
otherwise, shall not relieve Tenant from its obligations accruing prior to the
expiration of the Term.
35. Corporate Tenants. If Tenant is a corporation, the person(s)
executing this Lease on behalf of Tenant hereby covenant(s) and Warrant(s) that:
Tenant is a duly formed corporation qualified to do business in the state in
which the Property is located; Tenant will remain qualified to do business in
said state throughout the Term and any renewals thereof; and such persons are
duly authorized by such corporation to execute and deliver this Lease on behalf
of the corporation.
36. Waiver of Invalidity of Lease. Each party agrees that it will not
raise or assert as a defense to any obligation under the Lease or this or make
any claim that the Lease is invalid or unenforceable due to any failure of this
document to comply with ministerial requirements including, without limitation,
requirements for corporate seals, attestations, witnesses, notarizations or
other similar requirements and each party hereby waives the right to assert any
such defenses or make any claim of invalidity or unenforceability due to any of
the foregoing.
37. Security Deposit. As additional security for the full and prompt
performance by Tenant of the terms and covenants of this Lease, Tenant has
deposited with Landlord the Security Deposit, as set forth in the Preamble. The
Security Deposit shall not
26
constitute rent for any month (unless so applied by Landlord on account of
Tenant's default hereunder). Tenant shall, upon demand, restore any portion of
the Security Deposit which may be applied by Landlord to cure any default by
Tenant hereunder. To the extent that Landlord has not applied the Security
Deposit or any portion thereof on account of a default, the Security Deposit, or
such remaining portion of the Security Deposit shall be returned to Tenant,
together with simple interest calculated at the rate of five percent (5%) per
annum, promptly following the termination of this Lease.
38. Tenant Estoppel Certificate.
a) Tenant shall from time to time, within ten (10) days after
Landlord's request or that of any mortgagee of Landlord, execute, acknowledge
and deliver to Landlord a written instrument in recordable form, substantially
in the form attached hereto as Exhibit E (a "Tenant Estoppel Certificate"),
---------
certifying (i) that this Lease is in full force and effect and has not been
modified, supplemented or amended (or, if there have been modifications,
supplements or amendments, that it is in full force and effect as modified,
supplemented or amended, and stating such modifications, supplements and
amendments); (ii) the dates to which Fixed Basic Rent and Additional Rent and
any other charges arising hereunder have been paid; (iii) the amount of any
prepaid rents or credits due Tenant, if any; (lv) if applicable, that Tenant has
accepted possession and has entered into occupancy of the Premises, and
certifying the Commencement Date and the Termination Date; (v) whether or not to
the best of the Tenant's knowledge, all conditions under the Lease to be
performed by Landlord prior thereto have been satisfied and whether or not
Landlord is then in default in the performance of any covenant, agreement or
condition contained in this Lease and specifying each, if any, unsatisfied
condition and each, if any, default of which Tenant may have knowledge; and (vi)
any other fact or condition reasonably requested. Any certification delivered
pursuant to the provisions of this Article shall be intended to be relied upon
by Landlord and any mortgagee or prospective mortgagee or purchaser of the
Property of any interest therein.
b) The failure of Tenant to execute, acknowledge and deliver to
Landlord a written Tenant Estoppel Certificate in accordance with the provisions
of this Section 38 within said ten (10) day period shall constitute an
acknowledgment by Tenant, which may be relied upon by any mortgagee or
prospective mortgagee or any purchaser of the Property or of any interest
therein, that this Lease has not been modified, supplemented or amended except
as set forth in landlord's request, and is in full force and effect (or in full
force and effect as so modified, supplemented or amended), that the Base Rent,
Additional Rent and any other charges arising hereunder have not been paid
beyond the respective due dates immediately preceding the date of such request,
that Tenant has no right of set-off or other defense to this Lease and of the
truth of such other facts and conditions as shall have been requested to be
certified, and shall constitute, as to any person entitled to rely as aforesaid,
a waiver of any defaults which may exist prior to the date of such request.
Notwithstanding the foregoing, Tenant's failure to furnish a Tenant Estoppel
Certificate within said ten (10) day period shall constitute a default under
this
27
Lease.
39. Rights Reserved by Landlord. Landlord waives no rights, except those
that may be specifically waived herein, and explicitly retains all other rights
including, without limitation, the following rights, each of which Landlord may
exercise without notice to Tenant and without liability to Tenant for damage or
injury to property, person or business on account of the exercise thereof, and
the exercise of any such rights shall not be deemed to constitute an eviction or
disturbance of Tenant's use or possession of the Premises and shall not give
rise to any claim for set-off or abatement of Rent or any other claim:
a) To change the name or street address of the Building.
b) To install, affix and maintain any and all signs on the
exterior and on the interior of the Building.
c) To decorate or to make repairs, alterations, additions, or
improvements, whether structural or otherwise, in and about the Building, or any
part thereof, and for such purposes to enter upon the Premises and during the
continuance of any of such work, to temporarily close doors, entry ways, public
space and corridors in the Building and to interrupt or temporarily suspend
services or use of facilities, all without affecting any of Tenant's obligations
hereunder, so long as the Premises are reasonably accessible and usable.
d) To furnish door keys for the entry door(s) in the Premises
on the Commencement Date and to retain at all times, and to use in appropriate
instances, keys to all doors within and into the Premises. Tenant agrees to
change no locks, and not to affix locks on doors without the prior written
consent of the Landlord. Upon the expiration of the Tenn or Tenant's right to
possession, Tenant shall return all keys to Landlord and shall disclose to
Landlord the combination of any safes, cabinets or vaults left in the Premises.
e) To designate and approve all window coverings used in the
Building such approval not to be unreasonably withheld or delayed.
f) To approve the weight, size and location of safes, vaults
and other heavy equipment and articles in and about the Premises and the
Building so as not to exceed the legal load per square foot designated by the
structural engineers for the Building such approval not to be unreasonably
withheld or delayed To require all such items and furniture and similar items to
be moved into or out of the Building and Premises only at such times and in such
manner as Landlord shall direct in writing. Tenant shall not install or operate
machinery or any mechanical devices of a nature not directly related to Tenant's
ordinary use, as limited by the Permitted Use, of the Premises without the prior
written consent of Landlord. The movement of Tenant's property into or out of
the Building or the Premises and within the Building are entirely at the risk
and
28
responsibility of Tenant.
g) To enter the Premises in accordance with Section 14, and in
the last year of the Term, to show the Premises to prospective tenants at
reasonable times and, if vacated or abandoned, to show the Premises at any time
and to prepare the Premises for re-occupancy.
h) To erect, use and maintain pipes, ducts, wiring and
conduits, and appurtenances thereto, in and through the Premises.
i) To enter the Premises at any reasonable time to inspect the
Premises and to make repairs or alterations as Landlord deems necessary, with
due diligence and minimum disturbance.
j) To alter the layout, design and/or use of the Building (but
not the Premises) in such manner as Landlord, in its sole discretion, deems
appropriate, so long as the character of the Building as a first class office
building is maintained.
40. Miscellaneous.
a) Captions. The captions in this Lease are for convenience
only and are not a part of this Lease and do not in any way define, limit,
describe or amplify the terms and provisions of this Lease or the scope or
intent thereof.
b) Entire Agreement. This Lease represents the entire agreement
between the parties hereto and there are no collateral or oral agreements or
understandings between Landlord and Tenant with respect to the Premises or the
Property. No rights, easements or licenses are acquired in the Property or any
land adjacent to the Property by Tenant by implication or otherwise except as
expressly set forth in the provisions of this Lease.
c) Modification. This Lease shall not be modified in any manner
except by an instrument in writing executed by the parties. Notwithstanding the
foregoing, Landlord shall have the right at anytime, and form time to time,
during the Term, to unilaterally amend the provisions of this Lease if Landlord
is advised by its counsel that all or any portion of the monies paid by Tenant
to Landlord hereunder are, or may be deemed to be, unrelated business income
within the meaning of the United States Internal Revenue Code or regulations
issued thereunder; and Tenant agrees that it will execute all documents or
instruments necessary to effect such amendment or amendments, provided that no
such amendment shall result in Tenant having to pay in the aggregate a larger
sum of money on account of its occupancy of the Premises under the terms of this
Lease as so amended, and provided further that no such amendment or amendments
shall result in Tenant receiving under this Lease less services than it is
entitled to receive, nor services of a less quality. In addition, Tenant agrees
to make such changes to this Lease as are required by any mortgagee, provided
such changes do not substantially affect Tenant's
29
rights and obligation hereunder.
d) Interpretation. The masculine (or neuter) pronoun, singular
number, shall include the masculine, feminine and neuter genders and the
singular and plural number.
e) Exhibits. Each writing or plan referred to herein as being
attached as an Exhibit or otherwise designated herein as an Exhibit hereto is
hereby made a part hereof.
f) Captions and Headings. The captions and headings of
sections, subsections and the table of contents herein are for convenience only
and are not intended to indicate all of the subject matter in the text and they
shall not be deemed to limit, construe, affect or alter the meaning of any
provisions of this Lease and are hot to be used in interpreting this Lease or
for any other purpose in the event of any controversy.
g) Interest. Wherever interest is required to be paid
hereunder, such interest shall be at the highest rate permitted under law but
not in excess of nine percent (9%).
h) Severability. If any term or provision of this Lease, or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be valid and be enforced to the fullest
extent permitted by law.
i) Joint and Several Liability. If two or more individuals,
corporations, partnerships or other persons (or any combination of two or more
thereof) shall sign this Lease as Tenant, the liability of each such individual,
corporation, partnership or other persons to pay the Rent and perform all other
obligations hereunder shall be deemed to be joint and several, and all notices,
payments and agreements given or made by, with or to any one of such
individuals, corporations, partnerships or other persons shall be deemed to have
been given or made by, with or to all of them. In like manner, if Tenant shall
be a partnership or other legal entity, the members of which are, by virtue of
any applicable law or regulation, subject to personal liability, the liability
of each such member shall be joint and several.
j) No Representations by Landlord. Landlord and Landlord's
agents have made no representations, agreements, conditions, warranties,
understandings or promises, either oral or written, other than as expressly set
forth herein, with respect to this Lease, the Premises and/or the Building.
k) Relationship of Parties. This Lease shall not create any
relationship between the parties other than that of Landlord and Tenant.
30
l) Choice of Law. The terms of this Lease shall be construed
under the laws of the Commonwealth of Pennsylvania, and that exclusive
jurisdiction and venue shall be in the Court of Common Pleas of the County in
which the Property is located.
41. Additional Definitions.
a) "Date of this Lease" or "date of this Lease" shall me, the
date of acceptance of this Lease by the Landlord, following execution and
delivery thereof to Landlord by Tenant and that date shall be inserted in the
space provided in the Preamble.
b) "Landlord" as used herein includes the Landlord named above
as well as its successors and assigns, each of whom shall have the same rights,
remedies, powers, authorities and privileges as he would have had he originally
signed this lease as Landlord. Any such person, whether or not named herein,
shall have no liability hereunder after ceasing to hold title to the Premises.
Neither Landlord nor any principal of Landlord nor any owner of the Building or
the Lot, whether disclosed or undisclosed, shall have any personal liability
with respect to any of the provisions of this Lease or the Premises, and if
Landlord is in breach or default with respect to Landlord's obligations under
this Lease or otherwise, Tenant shall look solely to the equity of Landlord in
the Premises for the satisfaction of Tenant's remedies.
c) "Tenant" as used herein includes the Tenant named above as
well as its heirs, successors and assigns, each of which shall be under the same
obligations, liabilities and disabilities and each of which have the same
rights, privileges and powers as it would have possessed had it originally
signed this Lease as Tenant. Each and every person named above as Tenant shall
be bound formally and severally by the terms, covenants and agreements contained
herein. However, no such rights, privileges or powers shall inure to the benefit
of any assignee of Tenant, immediate or remote, unless the assignment to such
assignee is permitted or has bee approved in writing by Landlord such approval
not to be unreasonably withheld or delayed. Any notice required or permitted by
the terms of this Lease may be given by or to any one of the persons named above
as Tenant, and shall have the same force and effect as if given by or to all of
them.
d) "Mortgage" and "Mortgagee" as used herein includes any lien
or encumbrance on the Premises or the Property or on any part of or interest in
or appurtenance to any of the foregoing, including without any ground rent or
ground lease if Landlord's interest is or becomes a leasehold estate. The word
"mortgagee" is used herein to include the holder of any mortgage, including any
ground Landlord if Landlord's interest is or becomes a leasehold estate.
Wherever any right is given to a mortgagee, that right may be exercised on
behalf of such mortgagee by any representative or servicing agent of such
mortgagee.
e) "Person" as used herein includes a natural person, a
partnership, a
31
corporation, an association, and any other form of business association or
entity.
f) "Property" as used herein shall mean the Building and the
lot, tract or parcel of land on which the Building is situated.
g) "Rent" or "rent" as used herein shall mean all Fixed Basic
Rent and Additional Rent reserved under this Lease.
IN WITNESS WHEREOF, and in consideration of the mutual entry into this
Lease and for other good and valuable consideration, and intending to be legally
bound, each party hereto has caused this agreement to be duly executed under
seal.
Landlord: EQUIVEST MANAGEMENT
--------
CORPORATION, Agent
Date Signed: 7/31/98 By: /s/ [ILLEGIBLE]
--------- --------------------------------
Name: [ILLEGIBLE]
---------------------------
Title: [ILLEGIBLE]
--------------------------
Attest:____________________________
Tenant:
------
Date Signed: 7-13-98 ORAPHARMA, INC.
---------
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
--------------------------
Title: President & CEO
-------------------------
Attest: /s/ [ILLEGIBLE] - CFO
----------------------------
32
RIDER A
RENEWAL OPTION: Provided that this Lease has not been sooner terminated or
--------------
expired Tenant is hereby granted an option to renew this Lease for two (2)
separate terms of five (5) years each upon the following terms and conditions:
At the time of the exercise of the option to renew and at the time of the said
renewal, the Tenant shall not be in default in accordance with the terms and
provisions of this Lease, and shall be in possession of the Premises pursuant to
this Lease.
Nine (9) months and two (2) weeks before the Lease Termination Date (or the last
day of the renewal term, as applicable), Landlord shall notify Tenant of
Landlord's determination of the fair rental value for the Premises for the
forthcoming renewal term.
Notice of the exercise of the option shall be sent to the Landlord in writing at
least six (6) months but not more than nine (9) months before the expiration of
the Term (or, if exercised by Tenant, the expiration of the prior renewal Term
of this Lease.
Each renewal term shall be for a period of five (5) years, to commence at the
expiration of the Term of this Lease, and all of the terms and conditions of
this Lease, other than the Fixed Basic Rent, shall apply during any such renewal
term.
The annual fixed basic rent to be paid during the renewal term shall not be less
than that paid for the Premises during the last year of the original term of the
Lease or the last year of the prior renewal term, if exercised. However, if the
fair rental value per square foot at the commencement of the renewal term shall
exceed the rent as established in the preceding sentence, the Tenant shall pay
such fair rental value. In determining the fair rental value, the Landlord
shall notify Tenant of the fair rental value as established by Landlord. Should
Tenant dispute Landlord's determination, then the Tenant shall be free to, at
the Tenant's sole cost and expense, employ the services of an appraiser familiar
with office buildings located within the Warminster and Ivyland Township,
Pennsylvania area comparable to the Building, who shall be a member of MAI and
who shall render an appraisal. If the Landlord and the Tenant's appraiser
cannot agree on the fair rental value, or in such case, on an independent
appraiser acceptable to both, either party may request the American Arbitration
Association to appoint such independent appraiser who shall be a member of MAI
familiar with office buildings in the area of the Building who shall render an
appraisal, and in such event the judgment of a majority of the three appraisers
shall be final and binding upon the parties. The parties shall share equally in
the cost of any such independent appraiser. Pending resolution of the issue of
fair rental value, the Tenant shall pay the Landlord as of commencement of the
renewal term, the Fixed Basic Rent as established by Landlord, subject to
retroactive adjustment upon final determination of this issue.
EXHIBIT A
---------
LOCATION OF PREMISES
EXHIBIT A-1
-----------
OFFICE BUILDING AREA
EXHIBIT B
---------
RULES AND REGULATIONS
1. OBSTRUCTION OF PASSAGEWAYS: The sidewalks, parking lots or entrance, of
--------------------------
the Building shall not be obstructed or encumbered by Tenant or used by Tenant
for any purpose other than ingress and egress. Because the Premises are situated
on the ground floor with direct access to the street, then Landlord shall, at
Landlords expense, keep the sidewalks and curbs directly in front of the
Premises clean and free from ice, snow and refuse.
2. WINDOWS: 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 Landlord.
4. SIGNS: No sign or lettering shall be affixed by Tenant 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 Landlord. However, Tenant shall have the night to place its name on
any door leading into the Premises the size, color and style thereof to be
subject to the Landlord's approval.
5. FLOOR COVERING: If linoleum or other similar floor covering is used Tenant
--------------
shall, at its sole cost and expense, remove such floor covering upon termination
of this Lease and restore same to its condition as of the Commencement Date.
6. INTERFERENCE WITH OCCUPANTS OF BUILDING: Tenant 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. Tenant 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 Tenant without giving keys to Landlord. Tenant shall,
on the termination of Tenant's tenancy, deliver to Landlord all keys to any
space within the Building either furnished to or otherwise procured by Tenant,
and in the event of the loss of any keys furnished, Tenant shall pay to Landlord
the cost thereof Tenant, 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 Tenant from installing a burglar alarm within the
Premises, provided: (1) Tenant obtains Landlord's consent which will not be
unreasonably withheld or delayed; (2) Tenant supplies Landlord 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
Tenant.
8. PROHIBITED ON PREMISES: Tenant 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
Landlord, except the storage of usual supplies and inventory to be used by
Tenant in the conduct of his business, permit the Premises to be used for
gambling, make any unusual noises in the Building, permit to be played musical
instrument 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. Tenant
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 Tenant shall cooperate to prevent the
same. No bicycles, vehicles or animals of any kind shall be brought into or kept
in or about the Premises.
9. 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. When metered electric wiring of any kind is introduced, it
must be connected as directed by Landlord, and no stringing or cutting of wires
will be allowed, except by prior written consent of Landlord, and shall be done
by contractors approved by Landlord. The number and locations of telephones,
telegraph instruments, electrical appliances, call boxes, etc. shall be subject
to Landlord's approval.
10. MOVEMENT OF FURNITURE, FREIGHT OR BULKY MATTER:
----------------------------------------------
[INTENTIONALLY DELETED]
11. SAFES AND OTHER HEAVY EQUIPMENT: Landlord 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.
12. ADVERTISING: Landlord shall have the right to prohibit any advertising by
-----------
Tenant which in Landlord's reasonable opinion tends to impair the reputation of
the Building or its desirability as a building for offices, and upon written
notice from Landlord, Tenant shall refrain from or discontinue such advertising.
13. NON-OBSERVANCE OR VIOLATION OF RULES BY OTHER TENANTS: Landlord shall not
-----------------------------------------------------
be responsible to Tenant for non-observance or violation of any of these rules
and regulations by any other tenant, provided that Landlord shall notify other
tenants of the Building of any complaint Landlord receives from Tenant
concerning violations of these Rules and Regulations by such other tenants.
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14. PARKING: Tenant and its employees shall park their cars only in those
-------
portions of the parking area designated by Landlord.
15 RESERVATION OF RIGHTS: Landlord hereby reserves to itself any and all
---------------------
rights not granted to Tenant hereunder, including, but not limited to, the
following rights which are reserved to Landlord 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 Tenant 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 Tenant 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 except that portion of the roof over the Premises; and
e. the right to limit the space on the directory of the Building to be
allotted to Tenant; and
f. the right to grant to anyone the right to conduct any particular
business or undertaking in the Building.
16. HEALTH AND SAFETY: The Tenant shall be responsible for initiating,
-----------------
maintaining and supervising all health and safety precautions and/or programs
required by law in connection with the Tenant's use and occupancy of the
Premises.
--END--
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EXHIBIT C
---------
LANDLORD'S WORK
EXHIBIT D
---------
TENANT ESTOPPEL CERTIFICATE
TO: ____________ ("_____________") pursuant to that certain _____________
Agreement (the "Agreement") dated ____________, 199_, by and between
_____________________ and ________________________________ ("Lessor").
1. The undersigned ("Lessee") is the lessee under that certain Lease
dated ______________, 19__, by and between
_______________________________________, as lessor, and
___________________________, as lessee (the "Lease"), covering a portion of
those certain premises commonly known and designated as
__________________________________, Pennsylvania, consisting of approximately
____ square feet (the "Premises"). A true, complete and correct copy of the
Lease is attached hereto as Exhibit "A".
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 the Premises. If
none, state "none".
_____________________________________________________________________________
_____________________________________________________________________________
3. The undersigned has made no agreements with Lessor or its agents or
employees, which are not described in the Lease concerning free rent, partial
rent, rebate of rental payments or any other type of rental concession with
respect to the Lease (except as indicated following this sentence). If none,
state "none".
______________________________________________________________________________
______________________________________________________________________________
4. The undersigned accepted possession of the Premises on ____________,
19__, currently occupies the Premises and has been open for business since
____________, 19__. The current term of the Lease began on ___________, 19__.
The current term of the Lease will expire on ____________, 19__, and Lessee has
no present right to cancel or terminate the Lease under the terms thereof, or
otherwise. No rent payable pursuant to the Lease has been prepaid for more than
two (2) months, and no monies otherwise payable to Lessor under the Lease have
been paid in advance of the due date therefor as set forth in the Lease. The
fixed minimum rent currently being paid under the Lease is $_________ per month.
Future changes to the fixed minimum rental are as set forth in the Lease. The
undersigned also pays amounts for percentage rent, insurance and property tax
escalations based upon the square footage of the Premises subject to the Lease,
as set forth in the Lease, which amounts have been paid to and including
____________________, 199_.
5. The Lease is fully valid and enforceable and is currently in full
force and effect. Neither Lessor or Lessee is in default thereunder, and all
conditions and
obligations on the part of Lessor to be fulfilled under the terms of the Lease
have been satisfied or fully performed including, without limitation, all
required tenant improvements, allowances, alterations, installations and
construction, and payment therefor has been made in full. Lessee has no offset,
claim, defense or counterclaim against any rent or other sum payable by Lessee
under the Lease or against any other obligation of Lessee under the Lease. No
condition exists which with the giving of notice or the passage of time, or
both, would constitute a default under the Lease.
6. Lessee has not suffered any assignment of the Lease or sublet the
Premises or any portion thereof, and no person or entity, other than Lessee, has
any possessory interest in the Premises or right to occupy the Premises or any
portion thereof, except as permitted under the Lease.
7. Lessee claims no night, title or interest in or to the Premises or
right to possession of the Premises, except as lessee under the terms of the
Lease. The Lease does not contain and the undersigned does not have any
outstanding options or rights of first refusal to purchase the Premises or any
portion thereof or the real property of which the Premises are a part, except as
otherwise set forth below. If none, state "none".
______________________________________________________________________________
______________________________________________________________________________
8. No actions, whether voluntary or otherwise, are pending against the
undersigned under the bankruptcy, laws of the United States or any state
thereof, and. Lessee knows of no fact or pending or threatened claim or
litigation that might result in the insolvency or bankruptcy of Lessee.
9. Lessee is a [corporation][limited partnership][general partnership]
duly organized and validly existing, and in good standing under the laws of the
State of ______________ [and qualified to do business in the State where the
Premises is located]. [________, a ____________, owns and holds all of the
issued and outstanding stock in and of Lessee, and is a separate and distinct
entity from Lessee].
10. Lessee's occupancy of the Premises complies fully with all local,
state and federal laws, ordinances, codes, rules, regulations and orders
including, without limitation, those concerning hazardous wastes, hazardous
materials, asbestos, oil and underground storage tanks. In addition, no such
hazardous wastes, hazardous materials, asbestos, oil or underground storage
tanks have been or are incorporated in, stored on or under, released from,
treated on, transported to or from or disposed of, on or from the Premises or
any portion thereof.
11. All inspections, licenses, permits, consents, permissions, approvals
and certificates required, whether by law, regulation or insurance standards, to
be made or issued with respect to the conduct of Lessee's business, the Premises
and the use and occupancy of the Premises by Lessee have been made by or issued
by all necessary private parties, the appropriate governmental or quasi-
governmental or other
2
authorities having jurisdiction over the Premises and/or Lessee's business, are
in full force and effect, and Lessee has not received notification from any such
authority that Lessee or the Premises is in material noncompliance with such
laws, regulations or standards, that the Premises is being used, operated or
occupied unlawfully or that Lessee has failed to obtain such inspections,
permits, consents, permissions, approvals, licenses or certificates, as the case
may be. Lessee has not received notice of any violation or failure to conform
with any such law, ordinance, regulation, standard, license, permit, consent,
permission, approval or certificate.
12. All insurance policies required to be maintained by Lessee under the
Lease have been maintained, are in full force and effect and all premiums with
respect thereto have been paid in full.
13. Upon receipt of notice of the closing of the Purchase and sale of the
Premises as set forth in the Agreement, Lessee shall recognize _____ as lessor
under the Lease, and all payments of rent and other sums due to Lessor under the
Lease and all communications permitted or required under the Lease shall be
directed to _________________ c/o _____________________________________________
____________________________, and all communications permitted or required under
the Lease shall be directed to Lessee at the address for Lessee set forth in the
Lease (except as otherwise indicated following this sentence), unless and until
otherwise specified in written notice by the party to whom notice is to be given
at such address. If none, state "none".
____________________________________________________________________________
____________________________________________________________________________
14. This certification is made to induce _______________________ [to enter
into the Agreement] [to provide financing to Lessor] knowing that
_____________________ is relying upon the truth of this Tenant Estoppel
Certificate in [entering into the Agreement,] [providing such financing] and
that [the acquisition of the Premises by _____________________ pursuant to the
Agreement] [the financing provided to Lessor] shall be deemed good and valuable
consideration to Lessee for the foregoing representations made by Lessee.
Dated this ___ day of ___________, 199_.
LESSEE:
______________________________,
a_____________________________
BY:___________________________
Name:_____________________
Title: ___________________
3
EXHIBIT E
---------
COMMENCEMENT DATE AGREEMENT
THIS AGREEMENT made the ________ day of ________________, 199__ is by and
between (hereafter "Landlord") whose address is ________________________________
and _________________________________________ (hereinafter "Tenant") whose
address is:_____________________________________________.
STATEMENT OF FACTS
------------------
A. Landlord and Tenant entered into a Lease dated ________________, 199__
(hereinafter "Lease") setting forth the terms of occupancy by Tenant of
approximately ______ rentable square feet on the ___(___) floor (hereinafter
"Premises") at ___________________ (hereinafter "Building"); and
B. The Term of the Lease is for ___________ (__) months with the
Commencement Date of the initial Term being defined in the Preamble to the Lease
as being subject to change under Section 4 thereof; and
C. It has been determined in accordance with the provisions of Section 4
of the Lease that ___________, 199__ is the Commencement Date of the Term of
the Lease.
STATEMENT OF TERMS
------------------
NOW, THEREFORE, in consideration of the Premises and the covenants
hereinafter set forth, it is agreed:
1. The Commencement Date of the Term of the Lease is ____________, 199__
and the Expiration Date thereof is ______________, 199__, and the Lease Preamble
Articles 6 and 9 shall be deemed modified accordingly.
2. Article 10 of the Preamble shall be deemed modified as follows:
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.
3. Except as modified herein, the Lease covering the Premises shall
remain in full force and effect as if the same were set forth in full herein and
Landlord and Tenant hereby ratify and confirm all the terms and conditions
thereof.
4. This Agreement shall be binding upon and inure to the benefit of the
parties
hereto and their respective legal representatives, successors and permitted
assigns.
5. 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 valid 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 night to assert any such defense
or make any claim of invalidity or unenforceability due to any of the foregoing.
IN WITNESS THEREOF, Landlord and Tenant 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.
LANDLORD:
_________________________________
BY:______________________________
Name:_________________________
Title: _______________________
Attest:__________________________
TENANT:
_________________________________
BY:______________________________
Name:_________________________
Title: _______________________
Attest:__________________________
2
