EXHIBIT 10.12
THIS IS A CONFIDENTIAL DOCUMENT
This Lease (the "Lease"), dated as of the 18th day of March 1997
is made by and between LANDLORD (as hereinafter defined) and TENANT (as
hereinafter defined).
ARTICLE I: DEFINITIONS
1.01 DEFINED TERMS. The following terms shall have the meanings
specified in this Section, unless otherwise specifically provided. Other terms
may be defined in other parts of this Lease. All square foot measures and
Tenant's Share are subject to actual mesure before execution of the lease.
(a) LANDLORD: 0000 Xxxxxx Xxxxxxx Office Associates, L.P.,
a New Mexico limited partnership
(b) LANDLORD'S ADDRESS: 0000 Xxxxxx Xxxxxxx Office Associates, L.P.
000 Xxxxxxxx Xxxxxx Xxxxx 000 Xxxxx Xx, Xxx
Xxxxxx 00000
Attn: Xx. Xxxxxx Xxxxxxxxxx
WITH A COPY TO:
Axiom Real Estate Management, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Vice President, Property Management
(c) TENANT: Bionx Implants, Inc.
a Delaware Corporation having offices at
(d) TENANT'S ADDRESS: 000X Xxxxx Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
(e) BROKER: Xxxxx & Xxxxx, Inc., and C/B Commercial
(f) PROJECT: Sentry Park West, Blue Xxxx, Pennsylvania,
including the land described in Exhibit A
and all buildings and other improvements now
or hereafter located thereon. For purposes
of this Lease, the rentable square footage
of the Project shall be deemed to be two
hundred sixteen thousand (216,000) square
feet of rentable floor area. This
computation of rentable square footage shall
be binding and conclusive on the parties,
and their successors and assigns.
(g) BUILDING: The building known as Gwynedd Hall, Sentry
Park West, Blue Xxxx, Pennsylvania.
(h) PREMISES: The portion of the Building located on the
4th floor thereof as shown by cross-hatching
on the Building floor plan(s) attached
hereto as Exhibit B. For purposes of this
Lease, the rentable square footage of the
Premises shall be deemed to be seven
thousand two hundred seventy two (7,272)
square feet of rentable floor area. This
computation of rentable square footage shall
be binding and conclusive on the parties,
and their successors and assigns.
(i) TERM: Five (5) years, plus (if the
Commencement Date is not the first day of a
calendar month) the period from the
Commencement Date through the last day of
the calendar month in which the Commencement
Date occurs.
(j) ESTIMATED May 17, 1997 or four (4) to six (6) weeks
COMMENCEMENT DATE: after the date of the execution and
delivery of this Lease by Landlord and
Tenant.
(k) COMMENCEMENT DATE: As defined in Section 4.01.
(1) EXPIRATION DATE: The fifth anniversary of (a) if the
Commencement Date is the first day of a
calendar month, the day before the
Commencement Date, or (b) if the
Commencement Date is not the first day of a
calendar month, the last day of the calendar
month in which the Commencement Date occurs.
For example, if the Commencement Date were
July 1, 1996, the Expiration Date would be
the applicable anniversary of June 30, 1996;
if the Commencement Date were July 15, 1996,
the Expiration Date would be the applicable
anniversary of July 31, 1996. If the Term
has been extended or this Lease has been
renewed, the Expiration Date shall be the
last day of the Term as so extended or
renewed.
(m) LEASE YEAR: The period from the Commencement Date
through the day before the one-year
anniversary of the Commencement Date (or if
the Commencement Date is not the first day
of a calendar month, the one-year
anniversary of the last day of the month in
which the Commencement Date occurs), and
each one-year period (or portion thereof if
the Lease is terminated during any such one-
year period) thereafter during the Term.
(n) BASE RENT: As set forth below:
Annual Base Rent Schedule
-------------------------
Portion of Terrn Base Rent Per Annum
---------------- -------------------
Lease Year 1 $119,988.00
Lease Year 2 $119,988.00
Lease Year 3 $123,624.00
Lease Year 4 $127,260.00
Lease Year 5 $130,896.00
(o) TENANT'S SHARE: 3.367%
(p) SECURITY DEPOSIT: $9,999.00
(q) TENANT IMPROVEMENT
ALLOWANCE: N/A
(r) BASE YEAR: The calendar year 1998.
(s) OPERATING EXPENSE Tenant's Share of the Operating Expenses
ALLOWANCE: (as defined in Section 6.02(b)(iii)) for
the Base Year.
(t) TAX ALLOWANCE: Tenant's Share of the Real Property Taxes
(as defined in Section 6.02(b)(i)) for the
Base Year.
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(u) UTILITY ALLOWANCE: Tenant's Share of the Utility Costs (as
defined in Section 6.02(b)(ii)) for the Base
Year.
ARTICLE II: DEMISE AND LEASE
2.01 DEMISE AND LEASE. Landlord hereby leases to Tenant, and Tenant
hereby leases from Landlord, subject to the provisions of this Lease, the
"Premises" specified in Section l.01(h) hereof located within the "Building"
specified in Section 1.01(g) hereof, which Building is a portion of the
"Project" identified in Section 1.01(f) hereof. The land on which the Project is
located is more particularly described in Exhibit A attached hereto and the
Premises are shown by cross-hatching on the Building floor plan(s) attached
hereto as Exhibit B. Tenant acknowledges that the sole purpose of the attached
floor plan(s) is to identify the location of the Premises in the Building.
Landlord makes no representation or warranty in the attached floor plan(s) as to
the usable or rentable square footage of the Premises. All square foot mesures
and Tenant's Share are subject to actual measure before execution.
2.02 REPRESENTATIONS AND WARRANTIES; TAKING OF POSSESSION. Tenant
acknowledges that neither Landlord nor any agent of Landlord has made any
representation or warranty with respect to the Premises, the Building, the
Common Areas (as defined in Section 2.03 below), or the Project or their
suitability for the conduct of Tenant's business. By taking possession of the
Premises, Tenant accepts the Premises, the Tenant Improvements (as defined in
Section 3.01 below) and the Building as completed or substantially completed (as
defined in Section 3.02 below).
2.03 COMMON AREAS. In addition to the Premises, Tenant shall have the
non-exclusive right to use in common with other tenants and/or occupants of the
Building and the Project, subject to the Rules and Regulations referred to in
Section 18.09 hereof and all covenants, conditions and restrictions now or
hereafter affecting or encumbering the Project, the following areas appurtenant
to the Premises: the Building's common entrances, lobbies, rest rooms,
elevators, stairways and accessways, loading and unloading areas, trash areas,
parking areas and facilities, roadways, sidewalks, walkways, parkways, plazas,
driveways and landscaped areas, and similar areas and facilities situated within
the Building and the exterior areas of the Project (collectively, the "Common
Areas"). Tenant acknowledges that Landlord shall have no obligation to construct
or complete any additional buildings or improvements to the Common Areas.
Tenant's right to utilize the Common Areas shall at all times be subject to
Landlord's reserved rights therein as described in Section 18.08 hereof.
ARTICLE III: IMPROVEMENTS
3.01 TENANT IMPROVEMENTS. The Premises are or shall be improved by
Landlord with the tenant improvements (the "Tenant Improvements") more
particularly described in the Work Letter Agreement attached hereto as Exhibit C
(the "Work Letter Agreement"). Landlord shall exercise reasonable efforts to
make the Premises Ready for Occupancy (as defined in Section 3.02 below) not
later than the Estimated Commencement Date set forth in Section 1.01(j) hereof.
If, however, the Premises are not completed on or before the Estimated
Commencement Date, this Lease shall not be void or voidable, nor shall Landlord
be liable to Tenant for any loss or damage resulting therefrom.
3.02 COMPLETION AND DELIVERY. The Premises shall be deemed ready for
occupancy ("Ready for Occupancy") when the Tenant Improvements have been
completed or substantially completed by Landlord and delivered, tendered or made
available to Tenant. The term "substantially completed" as used in this Lease
shall mean the date of issuance of a certificate of occupancy (temporary or
permanent) for the Premises by the municipality in which the Premises are
located, or if no certificate of occupancy is required, the date of substantial
completion of the Tenant Improvements as certified by Landlord's architect,
which certification shall be conclusive and binding upon Landlord and Tenant.
The Tenant Improvements shall be deemed substantially completed notwithstanding
the fact that minor details of construction, mechanical adjustments or
decorations which do not materially interfere with Tenant's use and enjoyment of
the Premises
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(items normally referred to as "punch list" items) remain to be performed. By
taking possession of the Premises, Tenant accepts the Premises, the Tenant
Improvements and the Building as completed or substantially completed, except
that in the latter case, on or about the date of Tenant's taking possession of
the Premises, Landlord and Tenant shall together prepare a list of incomplete
and/or corrective items needed at the Premises (which shall not include any
items requiring repair or correction due to damage caused in connection with
Tenant's taking possession of the Premises or due to the negligence or willful
misconduct of Tenant its agents, employees or contractors). If properly
includable as part of the Tenant Improvements, Landlord shall diligently
complete, as soon as reasonably possible, any items of work and adjustment on
such list as are not completed when the Premises are Ready for Occupancy.
Landlord will give Tenant reasonable advance notice of the date on which
Landlord expects the Premises to be Ready for Occupancy.
ARTICLE IV: TERM
4.01 TERM. The Term shall commence upon the earliest of the following
dates (the "Commencement Date"): (a) the date on which the Premises are Ready
for Occupancy (or, if the date on which the Premises are Ready for Occupancy is
delayed and such delay is caused by Tenant's delays in reviewing or approving
plans and specifications, Tenant's requests for materials, finishes or
installations other than "building standard", Tenant's changes in plans and
specifications, or other acts, omissions or delays of Tenant, the Commencement
Date shall be the date that falls the total number of days of delay attributable
to such causes prior to the date on which the Premises are Ready for Occupancy,
as reasonably determined by Landlord); or (b) the date upon which Tenant takes
possession or beneficial occupancy of the Premises with Landlord's written
consent. The Term shall expire at 11:59 p.m. on the Expiration Date set forth in
Section 1.01(1), unless sooner terminated as hereinafter provided.
4.02 NOTICE OF COMMENCEMENT DATE. Upon ascertaining the Commencement
Date, Landlord shall deliver to Tenant a written confirmation of the
Commencement Date, in the form attached hereto as Exhibit D (the "Notice of
Commencement"). The Notice of Commencement shall be binding upon Tenant unless
Tenant objects thereto in a writing delivered to Landlord within five (5)
business days of Tenant's receipt of the Notice of Commencement. However,
Landlord's failure to send the Notice of Commencement shall not delay the
commencement of or any of Tenant's obligations under this Lease if Tenant takes
possession or beneficial occupancy of the Premises with Landlord's written
consent prior to the Commencement Date set forth in the Notice of Commencement.
4.03 RENEWAL OPTIONS. Provided Tenant is not in default at the time the
option described in this paragraph is exercised and at the time of the
expiration of the original Term, Tenant shall have the right and option to renew
this Lease (the "Renewal Option") for one (1) additional term of five (5) years
(the "Renewal Term") to commence immediately upon expiration of the original
Term of this Lease. Tenant may exercise the Renewal Option only by delivery
written notice to Landlord not later than nine (9) months, nor earlier than
twelve (12) months, prior to the expiration of the original Term of this Lease.
Such notice shall be given to Landlord in accordance with Section 18.01 hereof.
If Tenant timely exercises the Renewal Option and is not in default at the
expiration of the original Term of this Lease (unless such default is waived by
Landlord at Landlord's sole discretion; such default may not be used by Tenant
as a means of negating the effectiveness of an earlier exercise by Tenant of the
Renewal Option), this Lease shall continue during the Renewal Term upon the same
covenant, terms and conditions applicable to the original Term of this Lease,
except for base rent and other provisions which by their nature are applicable
to the original Term of this Lease, except for base rent and other provisions
which by their nature are applicable only to the original Term of this Lease.
Base rent for the renewal term shall be $18.50 for year one of the renewal term
and said base rent shall escalate by $.50 per rentable square foot in subsequent
years 2, 3, 4 and 5 of the renewal term.
4.04 TERMINATION OPTION. Provided Tenant is not in default at the time
the option described in this paragraph is exercised, Tenant shall have the
option to terminate this Lease on the last day of the thirty sixth (36th) month
during the original five (5) year Term of this Lease.
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Such options shall be exercised only by delivering to Landlord (i) before the
expiration of the twenty seventh (27th) month during the original five (5) year
Term of notice of Tenant's exercise of such option ("Tenant's Exercise Notice")
and (ii) on or before the day on which the monthly installment of Base Rent for
the twenty eighth (28th) month during the original five (5) year Term of the
Lease is due, and together with such installment, the Termination Fee (as
hereinafter defined). The Termination Fee (which Termination fee shall be in
addition to, and not in substitution of, any Rent payable by Tenant under this
Lease), shall be sixty three thousand six hundred thirty dollars ($63,630.00).
Provided Tenant time and properly exercises its termination option
described in this Section 4.04 in the manner set forth above, the Term of this
Lease shall expire as of the early termination date set forth above, and such
early termination date shall become the Expiration ate for all purposes of this
Lease.
ARTICLE V: RENT
5.01 BASE RENT. The Base Rent shall be in the amount(s) set forth in
Section 1.01(n) hereof. The Base Rent shall be adjusted at the time and in the
manner set forth in Section 1.01(n) hereof (if any), and one-twelfth (1/12th) of
the annual Base Rent shall be paid in advance on the first day of each and every
month during the Term, without notice, demand or setoff. If the Commencement
Date is not the first day of a calendar month, Base Rent for the fractions of
the month in which the Commencement Date occurs shall be prorated based upon the
actual number of days in such fractional month. Upon executing this Lease,
Tenant shall pay the installment of Base Rent attributable to the first full
calendar month of the Term for which a full monthly installment of Base Rent is
payable hereunder.
5.02 ADDITIONAL RENT. In additional to Base Rent, Tenant shall pay to
Landlord all sums of money or other charges required to be paid by Tenant under
this Lease, including but not limited to charges required to be paid by Tenant
under this Lease for Operating Expenses, Real Property Taxes, Utility Costs (all
as defined in Article VI hereof) and Electricity Charges (as defined in Section
7.02(a) hereof) (all such sums being herein deemed "Additional Rent", which term
excludes Base Rent and the Security Deposit), and whether or not same are
designated "Additional Rent" and whether or not same are payable to Landlord or
any other entity. Any Additional Rent provided for in this Lease shall become
due with each monthly installment of Base Rent unless otherwise provided.
5.03 MANNER OF PAYMENT. Rent, payable under this Lease shall be paid in
lawful money of the United States of America without prior notice or demand
therefor and without any deduction, defense, counterclaim, setoff or abatement
whatsoever. Rent shall be paid to Landlord at Landlord's Address set forth in
Section 1.01(b) hereof or at such other place as Landlord may direct in writing.
The term "Rent" as used in this Lease shall refer collectively to "Base Rent"
and "Additional Rent".
5.04 LATE PAYMENT AND INTEREST. If any payment of Rent or any other
charge payable by Tenant hereunder is not paid promptly when due, Tenant shall
pay to Landlord a late payment charge equal to ten percent (10%) of the amount
of such delinquent payment in addition to the delinquent payment, regardless of
whether or not a notice of default has been given by Landlord. In addition,
Tenant shall pay interest on such late payment and late charge from and after
the expiration of five (5) days following the original due date of the late
payment at an interest rate (the "Interest Rate") equal to the lesser of (a) the
prevailing prime rate as published by Chase Manhattan Bank, N.A., at its New
York office (or a successor bank selected by Landlord upon written notice to
Tenant), plus three (3) percentage points, or (b) the maximum rate permitted by
applicable law, until such amounts are paid. Landlord and Tenant recognize that
the damages which Landlord will suffer as a result of Tenant's failure to timely
pay Rent or other amounts due to Landlord are difficult or impracticable to
ascertain, and agree that said interest and late charge constitute a reasonable
estimate of the damages which Landlord will suffer in the event of Tenant's late
payment. This Section 5.04 shall not relieve Tenant from payment of Rent or
other amounts due to Landlord at the times and in the manners herein specified.
Acceptance by Landlord of any such interest and late charge shall not constitute
a waiver of Tenant's default
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with respect to said overdue amount, nor prevent Landlord from exercising any
other rights or remedies available to Landlord.
5.05 SECURITY DEPOSIT. Tenant has deposited the Security Deposit
specified in Section 1.01(p) hereof as a security deposit with Landlord. The
payment of the Security Deposit is a current and absolute payment by Tenant to
Landlord, and the Security Deposit is and shall remain the sole and absolute
property of Landlord, subject only to Tenant's right to have the Security
Deposit returned to Tenant in accordance with and subject to the terms of this
Section 5.05. The Security Deposit shall secure Tenant's full and faithful
performance of all of Tenant's obligations under this Lease, including, without
limitation, the obligation to pay Rent and other monetary amounts, to maintain
the Premises and repair damages thereto and to surrender the Premises to
Landlord in a clean condition and in good repair upon termination of this Lease
as required pursuant to Section 18.05 below. Landlord shall not be required to
keep the Security Deposit separate from Landlord's general funds, nor shall
Tenant be entitled to interest on the Security Deposit. If Tenant fails to
perform any of Tenant's obligations hereunder, Landlord, without any obligation
to do so, may apply all or any portion of the Security Deposit toward
fulfillment of Tenant's unperformed obligations. If Landlord does so apply any
portion of the Security Deposit, Tenant, upon demand by Landlord, shall
immediately pay Landlord a sufficient amount to restore the Security Deposit to
the full original amount. Tenant's failure to restore the Security Deposit to
its full original amount within five (5) business days after receipt of such
demand shall, without any further notice or demand required, constitute an Event
of Default (as defined in Article XIV hereof). Use by Landlord of the Security
Deposit, or any part thereof, to satisfy any of Tenant's obligations hereunder
shall not constitute a waiver of Tenant's default with respect to such
nonperformance for which amounts are expended, nor prevent Landlord from
exercising any other rights or remedies available to Landlord. Within thirty
(30) days after the termination of this Lease, if Tenant has then performed all
of Tenant's obligations hereunder, Landlord shall return the Security Deposit,
or the remaining balance thereof, to Tenant. If Landlord sells or otherwise
transfers Landlord's rights or interest under this Lease, Landlord shall deliver
the Security Deposit, or the remaining balance thereof, to the transferee,
whereupon Landlord shall be released from any further liability to Tenant with
respect to the Security Deposit.
Tenant covenants that it shall not assign, pledge, hypothecate, mortgage
or otherwise encumber the Security Deposit during the Term of this Lease.
Notwithstanding Tenant's covenant set forth above, violation of which shall be
an Event of Default under this Lease, in the absence of evidence satisfactory to
Landlord of any assignment of the right to receive the Security Deposit, or the
remaining balance thereof, Landlord may return the Security Deposit to the
original Tenant regardless of one or more assignments of Tenant's interest in
such Security Deposit. In such event, upon the return of the Security Deposit,
or the remaining balance thereof, to the original Tenant, Landlord shall be
completely relieved of liability hereunder.
ARTICLE VI: ADDITIONAL RENT AND CHARGES
6.01 TENANT'S OBLIGATION FOR TAXES. In addition to amounts due from
Tenant in accordance with Section 6.02 below, Tenant shall pay or cause to be
paid, prior to delinquency, any and all taxes and assessments levied upon all
trade fixtures, inventories and other personal property placed in and/or upon
the Premises by Tenant. If any such taxes on Tenant's personal property or trade
fixtures are levied against Landlord or Landlord's property or if the assessed
value of the Premises is increased by the inclusion therein of a value placed
upon such personal property or trade fixtures of Tenant, and if Landlord pays
the taxes based upon such increased assessment, Tenant shall, upon demand, repay
to Landlord, as Additional Rent, the taxes so levied or the portion of such
taxes resulting from such increase in the assessment.
6.02. TENANT'S SHARE OF REAL PROPERTY TAXES, UTILITY COSTS, AND
OPERATING EXPENSES.
(a) ESTIMATED EXPENSES. If the parties' representatives cannot
agree on Operating Statement audits, the parties agree to select a third,
independent accountant to resolve
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any dispute, such determination to be binding on the parties. Tenant shall pay
to Landlord, as Additional Rent, the following (the "Escalation Amounts"):
(i) REAL PROPERTY TAXES. The amount by which Tenant's
Share of Real Property Taxes (as defined below) paid by Landlord during each
calendar year or portion thereof during the Term (except for the Base Year)
exceeds the Tax Allowance (as defined in Section 1.01(t)) (or in the event of a
portion of a calendar year, the fraction of the Tax Allowance that is equivalent
to the portion of the calendar year in question);
(ii) UTILITY COSTS. The amount by which Tenant's Share
of Utility Costs (as defined below) paid by Landlord during each calendar year
or portion thereof during the Term (except for the Base Year) exceeds the
Utility Allowance (as defined in Section 1.01(u)) (or in the event of a portion
of a calendar year, the fraction of the Utility Allowance that is equivalent to
the portion of the calendar year in question); and
(iii) OPERATING EXPENSES. The amount by which Tenant's
Share of Operating Expenses (as defined below) paid by Landlord during each
calendar year or portion thereof during the Term (except for the Base Year)
exceeds the Operating Expense Allowance (as defined in Section 1.01(s)) (or in
the event of a portion of a calendar year, the fraction of the Operating Expense
Allowance that is equivalent to the portion of the calendar year in question).
Prior to the commencement of each calendar year of the Term, except for the Base
Year, Landlord shall deliver to Tenant an estimate of the annual Escalation
Amounts payable by Tenant pursuant to this provision, and Tenant shall pay to
Landlord on the first of each month in advance, one-twelfth (1/12th) of
Landlord's estimated amount. At the end of each year there shall be an
adjustment made to account for any difference between the actual and the
estimated Escalation Amounts for such calendar year. If Tenant has overpaid the
Escalation Amounts owing pursuant to this provision, and provided Tenant is not
in default hereunder, Landlord shall refund such overpayment to Tenant;
provided, however, that Landlord shall have the right, in its sole discretion,
to credit such overpayment to unpaid Rent payable by Tenant under this Lease,
whether or not same is then due. Notwithstanding anything to the contrary
contained in this Lease, if Tenant's Share of Real Property Taxes, Utility Costs
or Operating Expenses during any calendar year during the Term of this Lease is
less than the Allowance for such item, such shortfall shall not be applied to
reduce the amounts payable by Tenant for Tenant's Share of such other items. If
Tenant has underpaid the Escalation Amounts owing pursuant to this provision,
Tenant shall pay the total amount of such deficiency to Landlord as Additional
Rent with the next payment of Rent due under this Lease following written notice
of said deficiency from Landlord to Tenant. Any Escalation Amounts attributable
to the Term of this Lease which would not otherwise be due until after the date
of the expiration or earlier termination of this Lease, shall, if the exact
amount is uncertain at the time this Lease expires or terminates, be paid by
Tenant to Landlord upon such expiration or termination in an amount to be
reasonably determined by Landlord, with an adjustment to be made once the exact
amount is known. Such obligation shall survive the expiration or earlier
termination of this Lease.
Tenant shall be provided, following the end of each calendar year during
the Term of this Lease, with a statement showing in reasonable detail the
separate charges for Real Property Taxes, Utility Costs, and Operating Expenses
for the such calendar year for which such charges were due (the "Operating
Statement"). If Tenant disputes the amount or characterization of any item
contained in the Operating Statement, Tenant shall have the right to designate
an independent certified public accountant that is not being compensated by
Tenant on a contingency fee basis to audit Landlord's records upon which such
Operating Statement is based, provided (i) Tenant first pays all sums due as
shown on the Operating Statement and (ii) Tenant first provides to Landlord the
written agreement of such accountant that such accountant (a) shall keep the
results of such audit confidential and will not disclose the results thereof or
any information obtained in connection therewith to any party other than
Landlord and Tenant and (b) shall not solicit any other tenant of the Project to
conduct a similar audit on such tenant's behalf. Such audit shall be conducted
and completed no later than sixty (60) days following Tenant's receipt of the
Operating Statement in question. The fee for any audit conducted on Tenant's
behalf shall be borne solely by Tenant. All information obtained through
Tenant's audit, as well as all information with respect to any compromise,
settlement, or adjustment reached
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between Landlord and Tenant in connection with such audit, shall be held in
strict confidence by Tenant and its officers, agents, and employees; and Tenant
shall, as a condition to Tenant's right to conduct any such audit, cause
Tenant's auditor to execute an agreement binding such auditor and such auditor's
officers, agents, and employees to such obligation of confidentiality. Tenant
shall not disclose the results of such audit or any information obtained in
connection therewith to any party other than Landlord. Landlord shall have the
right, at its sole expense, to have Tenant's audit reviewed by another certified
public accounting firm selected by Landlord, whose determination shall be
conclusive and binding on both Landlord and Tenant. Any adjustment required
between Landlord and Tenant following such review shall be made in accordance
with the procedure set forth in the immediately preceding paragraph. Any audit
and subsequent adjustment in payment shall be deemed to be conclusive settlement
of the dispute. If Tenant does not notify Landlord of a dispute within sixty
(60) days of receipt of such Operating Statement, Tenant shall be deemed to have
accepted Landlord's calculations as conclusive.
(b) DEFINED TERMS.
(i) REAL PROPERTY TAXES. For purposes of this
Lease, "Real Property Taxes" shall mean any and all federal, state and local
governmental taxes, assessments and charges of any kind or nature, whether
general, special, ordinary or extraordinary, which Landlord shall pay or become
obligated to pay because of or in connection with the ownership, leasing,
renting, management, control or operation of the Project or of the personal
property, fixtures, machinery, equipment, systems and apparatus located therein
or used in connection therewith. Real Property Taxes shall include, without
limitation, real estate taxes, personal property taxes, sewer rents, water
rents, assessments (special or otherwise), transit taxes, and ad valorem taxes.
Real Property Taxes shall also include all tees, costs and expenses (including,
without limitation, reasonable legal fees and court costs) paid by Landlord in
connection with protesting or contesting, or seeking a refund or reduction of,
any of the aforesaid Real Property Taxes, regardless of whether the Landlord is
ultimately successful. If at any time during the Term hereof, a tax or excise on
rents or income or other tax however described (herein called "Rent Tax") is
levied or any political subdivision thereof, on account of the Rent hereunder or
the interest of Landlord under this Lease, such Rent Tax shall constitute and be
included in Real Property Taxes, provided, however, that in no event shall
Tenant be obligated (a) to pay for any year any greater amount as a result of
such Rent Tax than would have been payable by Tenant had the rentals paid to
Landlord under all Project leases (being the rentals upon which such taxes are
imposed) been the sole taxable income of Landlord for the year in question or
(b) to pay or to reimburse Landlord for any tax of any kind assessed against
Landlord on account of any such Rent Tax having been reimbursed to Landlord by
Tenant or any third party.
For the purposes of determining Real Property Taxes for any given
calendar year, the amount to be included for such calendar year (a) from special
taxes or assessments payable in installments, shall be the amount of the
installments (and any interest) due and payable during such calendar year, (b)
from all other Real Property Taxes, shall be the amount of the payments thereof
due and payable during such calendar year, and (c) from any adjustments
(including, without limitation, a refund) to any Real Property Taxes by the
taxing authority, when such adjustment has resulted in a corresponding
adjustment payment by or to Landlord, shall constitute an adjustment to Real
Property Taxes for the calendar year to which such adjustment is applicable,
regardless of when such adjustment is made or received by Landlord, as the case
may be. Landlord shall refund to Tenant Tenant's Share of any net refund (after
deducting therefrom all reasonable expenses incurred in obtaining such refund)
received by Landlord of any Real Property Taxes paid by Tenant pursuant to the
terms of this Lease, up to the amount paid by Tenant on account of such refunded
Real Property Taxes.
Real Property Taxes shall not include any net income (except Rent Tax as
hereinabove provided), capital, stock, succession, transfer, franchise, gift,
estate or inheritance taxes, unless the same shall be imposed in lieu of all or
any portion of Real Property Taxes.
(ii) UTILITY COSTS. For purposes of this Lease,
"Utility Costs" shall consist of all costs incurred for gas, water, sewer,
power, heating, lighting, air conditioning and ventilation consumed by the
Project and the servicing thereof (including costs mandated by laws
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or regulations of governmental entities) and not otherwise separately metered
and paid for by individual tenants of the Project.
(iii) OPERATING EXPENSES. For purposes of this Lease,
"Operating Expenses" shall mean any expenses, costs and disbursements (other
than Real Property Taxes and Utility Costs) of every kind and nature, paid or
incurred by Landlord in connection with the ownership, leasing, management,
maintenance, operation and repair or all or any part of the Project (adjusted
for vacancy as hereafter provided), and/or in connection with the personal
property, fixtures, machinery, equipment, systems and apparatus located at the
Project or used in connection therewith, including, without limitation (the
following list is for definitional purposes only and shall not impose any
obligations upon Landlord to incur the expenses or provide the services listed):
(1) premiums and other insurance costs for insurance maintained by Landlord
pursuant to this Lease or otherwise for the benefit of the Project; (2) wages,
salaries and related expenses of all on-site employees engaged in operation,
management, maintenance and security, including without limitation, payroll
taxes and similar government charges with respect thereto, insurance,
retirement, fringe benefits and uniform allowances payable to employees; (3) all
supplies, materials and equipment (including rentals) used in such operation,
management, maintenance and repair; (4) all maintenance, security and service
costs; (5) all janitorial costs, including refuse removal and window cleaning;
(6) costs incurred in the management of the Building (including supplies),
together with a fee for the management of the Project and the rental cost of an
on-site management office; (7) consultant, legal and accounting expenses, but
not including the cost of audits by certified public accountants; (8) costs of
operating and maintaining elevator(s) (if any); (9) all maintenance, repair and
replacement costs relating to the Project, including sidewalks, landscaping,
snow removal, signs (other than tenant signs), service areas, mechanical rooms,
parking and plaza areas, building exteriors, driveways, including any
assessments against the Project pursuant to any covenants, conditions or
restrictions, reciprocal easement agreements, tenancy in common agreements or
similar restrictions or agreements; (10) painting, decorating and furbishing of
the Project and repairing, restriping and resurfacing the parking facilities and
parking areas of the Project; (11) roof system maintenance and repairs; (12)
amortization of capital improvements to the extent such capital improvements are
installed or used to reduce the costs of other items included in Operating Costs
(whether or not such costs in respect of the same are in fact reduced) or to the
extent such improvements are required by laws, rules, ordinances or regulations
enacted following the commencement of the Term; (13) any personal property taxes
levied on or attributable to personal property used in connection with the
operation, management, maintenance and/or repair of the Project; (14) the cost
of permits, certificates and licenses required in connection with the Project or
any portion thereof or any areas used in connection therewith (except building
permits and other development permits), and any other costs levied, assessed or
imposed by or at the direction of, or resulting from statutes or regulations or
interpretations thereof promulgated by any federal or governmental authority in
connection with the use or occupancy of the Project; and (15) any other expenses
of any kind whatsoever reasonably incurred in managing, operating, maintaining
and repairing the Project.
Operating Expenses shall be reduced by: to the extent actually received
by Landlord, the net proceeds (after deduction of all costs of recovery thereof,
including legal fees) of insurance and damages paid by third parties; specific
costs incurred for the account of, separately billed to, and paid by specific
tenants; repairs or replacements to the extent that the cost of the same is
recovered by Landlord pursuant to original construction warranties; interest on
debt or capital retirement of debt; costs of capital improvements except as
expressly provided in the immediately preceding paragraph; and Landlord's cost
of tenant leasehold improvements, leasing commissions and legal fees arising
from lease disputes.
(iv) TENANT'S SHARE. For purposes of this Lease
"Tenant's Share" means the percentage set forth in Section 1.01(o). Tenant's
Share is not meant, nor shall Tenant's Share be construed, to be a
representation by Landlord as to the rentable or usable square footage of the
Premises.
(c) ADJUSTMENT FOR OCCUPANCY. Notwithstanding any provision
herein to the contrary, in the event the Project is less than ninety-five
percent (95%) occupied during all or any portion of any calendar year of the
Term, an adjustment shall be made in computing variable
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Operating Expenses and Utility Costs for such year so that the same shall be
computed for such year as though the Project had been ninety-five percent (95%)
occupied during such year.
ARTICLE VII: SERVICES AND UTILITIES
7.01 LANDLORD'S SERVICES.
(a) BASIC SERVICES. Landlord shall furnish the following services
without charge (except for Tenant's Share of the costs of such services included
in Operating Expenses, or except as otherwise specifically provided in this
Lease): (i) heat and air conditioning required for the occupancy of the
Premises, between 8 A.M. and 6 P.M. Monday through Friday ("Business Hours"),
excluding Saturdays, Sundays and holidays (current Building holidays are listed
on Exhibit E annexed hereto, subject to change from time to time upon reasonable
advance written notice by Landlord), and the electricity to power same; (ii)
access and elevator service, including at least one weekend elevator; (iii) rest
room supplies and hot and cold water to restrooms and kitchens having sinks;
(iv) cleaning services as set forth in the Project Janitorial Specifications,
annexed hereto as Exhibit F. on weekdays, excluding holidays and weekends; (v)
snow removal; and (vi) such other services as Landlord may elect to provide from
time to time. Landlord shall have the right to modify the terms and/or frequency
of the services provided, so long as Landlord gives at least five (5) days
notice of any changes, and such changes do not materially diminish the services
described herein. The terms of Landlord's provision of certain of the services
listed above shall be additionally governed by the following provisions:
(i) HEAT. Landlord shall furnish heat to provide a
temperature and humidity condition required, in Landlord's reasonable judgment,
for comfortable occupancy of the Premises under normal business operations in
the absence of machines or equipment which may affect the temperature or
humidity otherwise maintained in the Premises. Such heat shall be provided daily
during Business Hours (Saturdays, Sundays and holidays excepted). Tenant agrees
to keep and cause to be kept closed all windows in the Premises and at all times
to cooperate fully with the Landlord in the operation of the heating system and
to abide by all reasonable regulations and requirements which Landlord may
prescribe to permit the proper functioning and protection of the heating system.
Landlord reserves the right to stop the heating system when necessary by reason
of accident or emergency or for repairs, alterations, replacements or
improvements, which in the judgment of the Landlord are desirable or necessary,
until said repairs, alterations, replacements or improvements shall have been
completed.
(ii) AIR CONDITIONING. Landlord shall furnish air
conditioning to provide a temperature and humidity condition required, in
Landlord's reasonable judgment, for comfortable occupancy of the Premises under
normal business operations in the absence of machines or equipment which may
affect the temperature or humidity otherwise maintained in the Premises. Such
air conditioning shall be provided daily during Business Hours (Saturdays,
Sundays and holidays excepted). Tenant agrees to keep and cause to be kept
closed all windows in the Premises and at all times to cooperate fully with the
Landlord in the operation of said system and to abide by all reasonable
regulations and requirements which Landlord may prescribe to permit the proper
functioning and protection of the air conditioning system. Landlord reserves the
right to stop the air conditioning system when necessary by reason of accident
or emergency or for repairs, alterations, regular maintenance, replacements or
improvements, which in the judgment of the Landlord are desirable or necessary,
until said repairs, alterations, regular maintenance, replacements or
improvements shall have been completed.
Whenever heavy concentration of personnel, motor, machines
or equipment, including telephone equipment, used in the Premises adversely
affects the temperature or humidity otherwise maintained by the air conditioning
system, Landlord reserves the right to install supplementary air conditioning
units in the Premises and the cost thereof, including all. of the costs relating
to the installation and the cost of operation and maintenance thereof, shall be
Additional Rent hereunder and shall be paid by Tenant to Landlord upon demand.
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(iii) ELEVATORS. Landlord shall provide passenger
elevator service in common with Landlord and the other tenants of the Building
24 hours per day every day (subject, however, to temporary shut downs for
repairs and maintenance). Freight elevator service shall at all times be subject
to scheduling by Landlord. Landlord shall provide limited passenger elevator
service at all times (except in the case of an emergency) during which normal
passenger elevator service is not furnished.
(iv) WATER. Landlord shall furnish cold water from
public municipal water mains from regular Building outlets for drinking,
lavatory and toilet purposes, drawn through fixtures installed by Landlord or by
Tenant with Landlord's prior written consent, and hot water for public lavatory
purposes from the regular supply of the Building. Tenant shall pay Landlord at
reasonable rates fixed by Landlord for water furnished for any other purpose as
Additional Rent hereunder, which rates shall equal Landlord's cost therefor.
Tenant shall not waste or permit the waste of water.
(v) JANITORIAL SERVICE. Tenant shall not provide
janitor services in the Premises without the prior written consent of Landlord
and then only at Tenant's sole responsibility, cost and expense, by contractors
or employees at all times satisfactory to Landlord in its sole discretion.
(b) NON-BUSINESS HOURS. Tenant shall have the right to use the
Premises beyond Business Hours and on weekends and holidays upon the express
condition that Tenant shall be responsible, at its sole cost and expense, for
any and all building services required and attributable to such excess use,
charged at the rates reasonably determined by Landlord from time to time.
Payment for excess use of services shall be deemed Additional Rent and shall be
paid to Landlord monthly, together with Base Rent.
(c) INTERRUPTION, ETC., OF SERVICES. Landlord shall not be in
default hereunder or be liable for any damages directly or indirectly resulting
from, nor shall the Rent be abated or suspended by reason of, (i) the
interruption or curtailment of the use of the Premises as a result of the
installation of any equipment in connection with the Premises or the Building;
(ii) any failure to furnish or delay in furnishing any services required to be
provided by Landlord, unless such failure or delay is caused solely by any
condition created by Landlord's negligence or willful misconduct or by
Landlord's failure to respond within a reasonable period of time to any written
request for service or repair for which Landlord is obligated under this Lease;
(iii) the limitation, curtailment, rationing or restriction of the use of water
or electricity, gas or any other form of energy or any other service or utility
whatsoever serving the Premises, the Building or the Project; (iv) any defects
to, or damage from, heating, ventilating or air conditioning systems, or
components of the foregoing, which are installed, repaired or modified by Tenant
in or serving the Premises; or (v) damage caused by water leakage, sewage,
steam, gas, odors or plumbing overflows. Landlord shall use reasonable efforts
to remedy any interruption in the furnishing of such services so as to minimize
any interference with the use of the Building by the tenants thereof (including
Tenant).
(d) HVAC. If the Tenant Improvements contemplated by Article III,
or any part thereof, are performed by Tenant and include the heating,
ventilating and air conditioning system for the Premises, Landlord shall not be
responsible for the quality of such system, but only for the supply of cooled or
warmed air from the Building's central system to the distribution system in the
Premises. Tenant shall maintain in good working condition and repair any
supplemental heating, ventilating and air conditioning unit or system installed
in the Premises by or on behalf of Tenant (including maintenance mandated by any
law or regulation, including without limitation applicable requirements of the
Occupational Safety and Health Administration), and shall maintain, at Tenant's
sole cost and expense, a maintenance contract on any such unit or system. In
addition, Tenant shall be solely responsible for compliance with all present and
future laws or regulations (including without limitation requirements of the
Occupational Safety and Health Administration that relate to the Premises)
regarding the indoor air quality of the Premises to the extent related to such
supplemental unit or system. Any such supplemental unit or system shall, unless
otherwise determined by Landlord, remain at the Premises at the expiration or
earlier termination of the Term of this Lease, and, together with the
maintenance contract maintained thereon, shall be the property of Landlord.
Tenant shall furnish
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to Landlord copies of all such maintenance contracts, as well as evidence of the
renewal thereof at least thirty (30) days prior to the expiration thereof. If,
in connection with the Tenant Improvements contemplated by Article III or any
other alterations or improvements to the Premises performed by or on behalf of
Tenant, any heating, ventilating and air conditioning equipment or units are
installed upon the roof of the Building, Tenant shall be solely responsible for
the cost of the maintenance thereof (including maintenance mandated by any law
or regulation, including without limitation applicable requirements of the
Occupational Safety and Health Administration), at Landlord's option the removal
thereof upon the expiration or earlier termination of this Lease, and shall also
be solely responsible for the cost of the repair of any damage caused to the
roof of the Building by the installation, maintenance, operation or removal of
such equipment or units.
(e) LIGHT BULBS AND ELECTRICAL FIXTURES. Tenant covenants and
agrees that it shall make no alterations or additions to the electric equipment
and/or appliances in the Premises without the prior written consent of Landlord
in each instance. Landlord shall maintain the light fixtures in the Premises and
install any lamps, bulbs, ballasts or starters to be used by Tenant in the
Premises, all as an Operating Expense except that any light fixtures, ballasts,
starters and bulbs which are not Building standard items shall be repaired or
replaced by Landlord at Tenant's expense. Landlord reserves the right to stop
the electrical system when necessary by reason of accident or emergency or for
repairs, alterations, regular maintenance, replacements or improvements, which
in the judgment of Landlord are desirable or necessary, until said repairs,
alterations, regular maintenance, replacements or improvements shall have been
completed. Landlord shall use commercially reasonable efforts to complete its
work and return the electrical system to normal working order in a reasonably
timely fashion. Landlord shall endeavor to notify Tenant if and when the
electrical system will be stopped due to repairs.. Bulbs for lighting fixtures
shall be initially installed as part of the Tenant Improvements. Replacement
bulbs shall be provided and installed by Landlord at Tenant's expense.
7.02 ELECTRICITY.
(a) Landlord shall furnish the electricity which Tenant shall
require in the Premises for normal lighting and other normal and customary
office uses during Business Hours. Tenant shall pay as Additional Rent the
monthly charge for its electrical usage based on an electric submeter measuring
the electricity actually consumed at the Premises at the tariff applicable to
Landlord.
ARTICLE VIII: INSURANCE
8.01 LANDLORD'S INSURANCE. During the Term, Landlord shall procure and
maintain in full force and effect with respect to the Building a policy or
policies of all-risk insurance (including sprinkler, vandalism and malicious
mischief coverage, and any other endorsements required by the holder of any fee
or leasehold mortgage) in an amount equal to one hundred percent (100%) of the
full insurance replacement value (replacement cost new, including debris
removal, and demolition) thereof. Tenant shall not permit any use of the
Premises which would jeopardize or conflict with the insurance coverage
maintained by Landlord or cause the premium charged to Landlord to increase
higher than such premium otherwise would be for a general office building of
comparable use and size. If the annual premiums charged Landlord for such
casualty insurance exceed the standard premium rates because the nature of
Tenant's operations results in increased exposure, then Tenant shall, upon
receipt of premium invoices from Landlord, reimburse Landlord for such increased
amount as Additional Rent. Landlord shall have the right, at its option, to keep
and maintain in full force and effect during the Term such other insurance in
such amounts and on such terms as Landlord and/or any mortgagee or beneficiary
of any trust deed against the Building and/or the Project may reasonably require
from time to time, in form, in amounts and for insurance risks against which a
prudent Landlord would protect itself, including but not limited to rental
abatement, public liability and property, elevator, worker's compensation,
boiler and machinery, earthquake and flood insurance.
8.02 PUBLIC LIABILITY. Tenant shall, at its own cost and expense, keep
and maintain in full force during the Term and any other period of occupancy of
the Premises by Tenant a policy
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or policies of comprehensive public liability insurance insuring Tenant's
activities with respect to the Premises, the Building, the Common Areas and the
Project, against loss, damage, or liability for personal injury or death of any
person, or loss or damage to property occurring in, upon or about the Premises
in an amount of not less than One Million Dollars ($1,000,000) combined single
limit (with inflation endorsement) or such larger amounts as may hereafter be
reasonably requested by Landlord. The policy shall (a) insure the hazards of the
Premises and Tenant's operations thereon, (b)include independent contractor and
contractual liability coverage (covering the indemnity contained in Section 8.09
hereof), (c) name Landlord, Landlord's property management firm for the Project
and any mortgagees designated by Landlord as an additional insured; (d) contain
a cross-liability provision; and (e) contain a provision that the insurance
provided Landlord hereunder shall be primary and non-contributing. In addition,
Tenant shall, at its sole cost and expense, keep and maintain in full force and
effect during the Term a Two Million Dollar ($2,000,000.00) umbrella policy on
terms reasonably acceptable to Landlord.
8.03 TENANT'S PROPERTY AND OTHER INSURANCE. Tenant shall, at its own
cost and expense, keep and maintain in full force during the Term and any other
period of occupancy of the Premises by Tenant, a policy or policies of standard
form property insurance insuring against the perils of fire, extended coverage,
vandalism, malicious mischief, special extended coverage ("all-risk") and
sprinkler leakage. This insurance policy shall be upon all property owned by
Tenant, for which Tenant is legally liable or that was installed at Tenant's
expense, and which is located in the Building, including, without limitation,
furniture, fittings, installations, fixtures (other than the Tenant Improvements
installed by Landlord), and any other personal property, in an amount not less
than one hundred percent (100%) of the full replacement cost thereof. This
insurance policy shall also insure direct or indirect loss of Tenant's earnings
attributable to Tenant's inability to use fully or obtain access to the Premises
or the Building, together with workers' compensation coverage as required by
state law.
8.04 ADDITIONAL INSURANCE. Tenant shall carry such insurance against
such other hazards and in such amounts as may be customarily carried by tenants
of similar properties as Landlord may reasonably require for its protection from
time to time.
8.05 FORM OF INSURANCE/CERTIFICATES. All policies required to be carried
by Tenant hereunder shall be written in form and content satisfactory to
Landlord and shall be issued by insurance companies approved by Landlord which
are licensed in the state in which the Building is located and holding a general
policy holder's rating of "A" and a financial rating of "X" or better, as set
forth in the most current issue of Best's Insurance Guide, and shall provide
that the policy is not subject to invalidation as to Landlord's interest by
reason of any act or omission of Tenant, its officers, agents, employees,
invitees, licensees, servants, subtenants, concessionaires or contractors
("Tenant's Agents"). Tenant shall furnish to Landlord, prior to Tenant's entry
on the Premises and thereafter within thirty (30) days prior to the expiration
of each such policy, a certificate of insurance (or renewal thereof) issued by
the insurance carrier of each policy of insurance carried by Tenant pursuant
hereto. Said certificates shall expressly provide that such policies shall not
be cancelable or subject to reduction of coverage or otherwise be subject to
modification except after thirty (30) days prior written notice to Landlord and
any designated mortgagee. Tenant may carry the insurance required hereunder
under a blanket policy, provided such blanket policy allocates to the Premises
coverage in amounts satisfactory to Landlord, and further provided that all
other requirements for insurance set forth in this Article VIII are met by such
blanket policy.
8.06 TENANT'S FAILURE. If Tenant fails to maintain any insurance
required in this Lease, Tenant shall be liable for any loss or cost resulting
from said failure. This Section shall not be deemed to be a waiver of any of
Landlord's rights and remedies under any other section of this Lease. If
Landlord obtains any insurance which it is the responsibility of Tenant to
obtain under this Article VIII, Landlord shall deliver to Tenant a written
statement setting forth the cost of any such insurance, and Tenant shall
promptly reimburse said amount to Landlord upon demand, together with interest
thereon at the Interest Rate from the date of demand until payment in full.
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8.07 WAIVER OF SUBROGATION. Landlord and Tenant each hereby release the
other, its officers, directors, employees and agents, from liability or
responsibility (to the other or anyone claiming through or under them by way of
subrogation or otherwise) for any loss or damage to property covered by valid
and collectible fire insurance with standard extended coverage endorsement, even
if such loss or damage shall have been caused by the fault or negligence of the
other party, or anyone for whom such party may be responsible. However, this
release shall apply only if the releasor's insurance policy contains a clause or
endorsement providing that any such release shall not adversely affect or impair
such policy or prejudice the right of the releaser to recover thereunder.
Landlord and Tenant each agree that any fire and extended coverage insurance
policies carried by each of them respectively and covering the Premises or their
contents will include such clauses or endorsements as long as the same shall be
obtainable without extra cost, or, if extra cost shall be charged therefor, so
long as the other party pays such extra cost upon advice to the other of the
amount of the extra cost.
8.08 TENANT'S PROPERTY AND FUTURES. Tenant assumes the risk of damage to
any furniture, equipment, machinery, goods, supplies or fixtures which are or
remain the property of Tenant or as to which Tenant retains the right of removal
from the Premises.
8.09 INDEMNIFICATION OF LANDLORD. In amplification of Article XVII and
not in limitation thereof, Tenant shall indemnify, defend and hold harmless
Landlord, Landlord's agents, contractors and employees, the Premises, the
Building and the Project from and against (i) any and all liability, penalties,
losses, damages, costs and expenses, demands, causes of action, claims or
judgments arising from any injury to any person or persons (including death) or
any damage to any property as a result of the use, maintenance, occupation or
operation of the Premises, the Building or the Project by Tenant or Tenant's
Agents or resulting from any breach or default in the performance of any
obligation to be performed by Tenant under the terms of this Lease, or arising
from any act, neglect, fault or omission of Tenant or any of Tenant's Agents,
and (ii) all legal fees, expert fees or other professional fees and court
charges incurred in connection with any of such matters and the defense of any
action arising out of the same or in discharging the Premises, the Building or
the Project, or any part thereof, from any and all liens, charges or judgments
which may accrue or be placed thereon by reason of any act or omission of Tenant
or any of Tenant's Agents; provided, however, that Tenant shall not be required
to indemnify Landlord for any damage or injury of any kind arising as a result
of the sole negligence or willful misconduct of Landlord and/or its agents,
contractors or employees. In no event shall Landlord nor any partner, director,
officer, agent or employee of Landlord be liable for any personal injury or
death or property damage caused by other lessees or persons in or about the
Premises, the Building or the Project, or caused by public or quasi-public work,
or for consequential damages arising out of any loss of the use of the Premises
or any equipment or facilities therein by Tenant or any persons claiming through
or under Tenant; nor shall Landlord or any partner, director, officer, employee
or agent of Landlord be liable for (i) any damage to property entrusted to
employees or security officers of the Building or the Project, (ii) loss or
damage to any property by theft, (iii) any injury or damage to persons or
property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water or rain which may leak from any part of the Building, the
Common Areas or the Project or from the pipes, appliances or plumbing work
therein or from the roof, street or subsurface or from any other place or
resulting from dampness or any other cause, or (iv) any interference with light
or other incorporeal hereditaments.
8.10 NOTIFICATION FROM TENANT. Tenant shall give prompt notice to
Landlord in case Tenant is or becomes aware of fire or accidents in the
Premises, the Building, the Common Areas or any other portion of the Project or
of any defects therein.
ARTICLE IX: REPAIR AND MAINTENANCE
9.01 TENANT REPAIRS AND MAINTENANCE. Except as otherwise set forth in
Section 9.02 below, Tenant shall, at Tenant's sole cost and expense, keep and
maintain the entire Premises, including without limitation, all interior walls,
doors, ceilings, fixtures, drapes, lights (including emergency lighting fixtures
in the Premises), ballasts, subfloors and floor coverings thereof, in good
repair and in a clean and safe condition. Tenant shall also be responsible for
maintenance of
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certain heating, ventilating and air conditioning equipment and/or units as set
forth in Section 7.01(d). Tenant shall also comply with and observe the
requirements of all laws and regulations of any applicable public authority and
the requirements of all insurance policies relating to the Premises. Except for
ordinary wear and as otherwise provided in this Lease, Tenant shall, at all
times during the Term hereof, at its sole expense, keep all Tenant's movable and
removable fixtures located in or appurtenant to the Premises in good order,
repair and condition.
9.02 LANDLORD REPAIRS AND MAINTENANCE. Subject to reimbursement pursuant
to Section 6.02 hereof, Landlord shall, except as otherwise set forth in this
Lease, maintain in good condition and repair the Common Areas and the structural
and exterior portions of the Building, and the plumbing, heating, ventilating,
air conditioning, elevator and electrical systems installed or furnished by
Landlord. Landlord shall not be liable for any failure to make any repairs or to
perform any maintenance unless such failure shall persist for an unreasonable
time after written notice of the need for such repairs or maintenance is given
to Landlord by Tenant. Except as set forth in Article XII hereof, there shall be
no abatement of Rent due to, and Landlord shall have no liability by reason of
any injury to or interference with Tenant's business arising from, the making of
any repairs, alterations or improvements in or to any portion of the Building,
the Project or the Premises or in or to fixtures, appurtenances and equipment
therein. Except as may otherwise be expressly set forth herein, Tenant affirms
that (a) neither Landlord nor any agent, employee or officer of Landlord has
made any representation regarding the condition of the Premises, the Building,
the Common Areas or the Project and (b) Landlord shall not be obligated to
undertake any remodeling, improvement, painting or decorating at any time during
the Term or any renewal or extension thereof.
9.03 NON-LIABILITY OF LANDLORD. Notwithstanding anything to the contrary
contained in Section 9.02 above or elsewhere in this Lease, Landlord shall not
be in default hereunder nor be liable for any damages directly or indirectly
resulting from, nor shall the Rent be abated or suspended by reason of, (a) the
interruption or curtailment of the use of the Premises as a result of the
performance of Landlord's obligations under this Article or the installation of
any equipment in connection with the Premises, the Project or the Building or
(b) any other condition described in Section 7.01(c) which may occur during the
performance of Landlord's obligations hereunder. Landlord shall use reasonable
efforts to perform its required obligations under this Lease so as to minimize
any interference with the use of the Building by the tenants thereof (including
Tenant).
9.04 INSPECTION OF PREMISES. Upon reasonable prior notice (except in an
emergency) Landlord may enter the Premises to complete construction undertaken
by Landlord on the Premises or the Building, to inspect, clean, improve or
repair the same, to inspect the performance by Tenant of the terms and
conditions hereof, to show the Premises to prospective purchasers, tenants and
lenders, and for all other purposes as Landlord shall reasonably deem necessary
or appropriate. Tenant hereby waives any claim for damages or any injury or
inconvenience to or interference with Tenant's business, any loss of occupancy
or quiet enjoyment of the Premises, and any other loss in, upon or about the
Premises, except as otherwise provided in Article XII hereof.
ARTICLE X: FIXTURES, PERSONAL PROPERTY AND ALTERATIONS
10.01 FIXTURES AND PERSONAL PROPERTY. Tenant, at Tenant's expense, may
install any necessary trade fixtures, equipment and furniture in the Premises,
provided that such items are installed and are removable without damage to the
structure of or systems and/or equipment serving the Building. Notwithstanding
the foregoing, Tenant shall not install any vending machines, ice machines,
safes or fireproof file cabinets in the Premises without Landlord's prior
written consent. Said trade fixtures, equipment and furniture shall remain
Tenant's property and shall be removed by Tenant upon the expiration or earlier
termination of this Lease. Landlord reserves the right to approve or disapprove
installation of curtains, draperies, shades, paint or other interior
improvements on wholly aesthetic grounds; same must be approved in writing by
Landlord prior to installation, or Landlord may remove or replace such items at
Tenant's sole expense. As a covenant which shall survive the expiration or
earlier termination of this Lease, Tenant shall repair, at Tenant's sole
expense, all damage caused by the installation or removal of
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said trade fixtures, equipment, furniture or aesthetic improvements and shall
restore the affected areas to a condition reasonably compatible with the
remainder of the Premises as determined by Landlord. If Tenant fails to remove
the foregoing items prior to or upon the expiration or earlier termination of
this Lease, Landlord, at its option and without any liability whatsoever to
Tenant for loss thereof or damage thereto, may keep and use same or remove any
or all of them and cause them to be stored or sold in accordance with applicable
law, and Tenant shall, upon demand of Landlord, pay to Landlord as Additional
Rent hereunder all costs and expenses incurred by Landlord in so storing and/or
selling said items.
10.02 ALTERATIONS. Tenant shall not make any improvements or alterations
in or additions, changes or installations to the Premises (collectively,
"Alterations") without submitting plans and specifications therefor to Landlord,
and obtaining Landlord's prior written consent in each instance, which Landlord
shall not unreasonably withhold or delay. Notwithstanding the foregoing,
however, no Alterations shall be permitted to the outside dimensions of the
Premises or the Building, existing bearing walls and columns, exterior walls,
roof, structural ceiling or foundations, nor shall Tenant install any electrical
equipment that would overload the lines in the Premises or interfere with the
electrical usage of other tenants, or install any Alterations visible from the
exterior of the Building, unless approved in writing by Landlord in Landlord's
sole discretion. All Work shall be performed (a) at the sole cost and expense of
Tenant by employees of contractors employed by Landlord, or with Landlord's
written consent given prior to letting of the contract, by contractors employed
by Tenant under a written contract previously approved in writing by Landlord,
and (b) on such terms and under such conditions as Landlord, in its reasonable
discretion, shall determine as will protect the Premises and the Building from
improper contractors' work and against the imposition of any lien resulting from
Alterations; without limiting the foregoing, if Landlord consents to any
Alterations, such Alterations shall be performed subject to the following
requirements:
(1) If the Alterations are to be done by Tenant's contractors, Tenant
shall furnish to Landlord, prior to commencement thereof, building permits and
certificates of appropriate insurance and bonds satisfactory in all respects to
Landlord. Tenant shall also furnish to Landlord, if Landlord so requests,
security for the payment of all costs to be incurred in connection with the
Alterations.
(2) If required by Landlord, Tenant shall secure at Tenant's own cost
and expense a completion and lien indemnity bond satisfactory to Landlord for
any Alterations. Upon completion of any Alterations, Tenant shall furnish
Landlord with contractors' affidavits and full and final waivers of lien, each
conforming to the applicable Pennsylvania statutory requirements, as-built plans
of any Alterations and receipted bills covering all labor and materials expended
and used. Insofar as applicable to the work or material for which payment is
requested or notice or lien claim is made, Landlord in its sole discretion shall
make available for partial or final payment or release thereof such funds as may
have been deposited with it by Tenant for the estimated cost of such work.
(3) Any Alterations permitted to be undertaken by Tenant's contractors
shall be performed in such a fashion and by such means as necessary to maintain
peace and harmony among the other contractors serving the Project and the other
tenants and so as not to cause interference with the continuance of work to be
performed and services to be rendered to the Project or the other tenants.
(4) All Alterations shall comply with all insurance requirements and
with all applicable laws, ordinances and regulations. All Alterations shall be
constructed in a good and workmanlike manner, and only good grades of material
shall be used with a quality equal to or better than that used in the Building.
(5) Tenant shall permit Landlord to supervise all Alterations within the
Premises. Landlord shall charge a supervisory fee not to exceed (a) fifteen
percent (15%) of the total cost of the Alterations, including, without
limitation, all labor and material costs, if Landlord's employees or contractors
perform the Alterations, and (b) ten percent (10~o) of the total cost of the
Alterations, including, without limitation, all labor and material costs, if
Tenant's employees or contractors perform the Alterations.
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(6) By approving any request for Alterations submitted by Tenant,
Landlord does not (i) expressly or implicitly covenant or warrant that any plans
or specifications are accurate, safe or sufficient or that the same comply with
any applicable laws, ordinances, building codes, or the like, or (ii) consent to
the imposition of any lien on the Premises or the Building for any work
performed or materials delivered in connection with any such Alterations. Tenant
shall be solely responsible for compliance with applicable laws, ordinances,
building codes, and/or the like, and for obtaining all necessary permits and
governmental approvals and for construction of said improvements in compliance
with same. Further, Tenant shall indemnify, defend and hold harmless Landlord
and the Premises from any loss, cost or expense, including reasonable legal
fees, incurred by Landlord as a result of any defects in design, materials or
workmanship resulting from such Alterations.
(7) All Alterations shall become the property of Landlord, unless
Landlord directs that such Alterations be removed by Tenant at the expiration or
earlier termination of this Lease (which direction, as to Alterations for which
Tenant has obtained Landlord's consent as provided herein, shall be made by
Landlord, if at all, at the time Landlord grants such consent). In such case,
Tenant, at Tenant's sole expense, shall remove the Alterations and repair all
damage resulting from such removal and shall restore the affected areas to a
condition reasonably compatible with the remainder of the Premises as reasonably
determined by Landlord, or, at Landlord's option, shall pay to Landlord all
costs arising from such removal and restoration.
If Tenant desires telegraphic, telephonic, burglar alarm, computer
installations or signal service beyond that which is to be provided, if any, as
part of the Tenant Improvements (all of which shall be at Tenant's sole cost and
expense), Landlord shall, upon request, direct where and how all connections and
wiring for such service shall be introduced and run. In the absence of any such
directions, Tenant shall make no borings, cutting or install any wires or cable
in or about the Premises.
10.03 LIENS. Any mechanic's lien filed against the Premises or the
Building or any notice which is received by either Landlord or Tenant or filed
for work or materials furnished or claimed to be furnished and deriving from
Alterations or for materials or work claimed to have been furnished to Tenant or
the Premises shall be released and discharged of record by Tenant, in either
case, within fifteen (15) business days after such filing or receipt, whichever
is applicable, at Tenant's expense. If Tenant chooses to contest such claim or
notice or lien, Tenant may do so in place of causing the release and discharge
thereof, provided that within said fifteen (l5) business day period, (i) Tenant
provides Landlord with a title indemnity or bond or other adequate security
covering any possible lien or claim that may arise from the failure to release
and discharge such claim, notice or lien; (ii) Tenant contests such claim,
notice or lien in good faith by appropriate proceedings that operate to stay
enforcement thereof; and (iii) Tenant promptly pays and discharges any final
adverse judgment entered in any such proceeding. If Tenant has not caused the
release or discharge or begun appropriate proceedings to contest such claim,
notice or lien, within said fifteen (15) business days, Landlord may, but shall
not be obligated to, pay the amount necessary to remove the same without being
responsible for making an investigation as to the validity or accuracy thereof,
and the amount so paid, together with all costs and expenses (including, without
limitation, reasonable attorneys' fees) incurred by Landlord in connection
therewith, shall be deemed Additional Rent hereunder payable upon demand. Tenant
has no power or authority to cause or permit any lien or encumbrance of any kind
whatsoever, whether created by act of Tenant, operation of law or otherwise, to
attach to or be placed upon Landlord's title or interest in the Premises, the
Building or the Project, and any and all liens and encumbrances created by
Tenant shall attach to Tenant's interest only.
ARTICLE XI: USE AND COMPLIANCE WITH LAWS
11.01 SIGNS. Tenant shall not paint, display, inscribe, place or affix
any sign, picture, advertisement, notice, lettering, or direction on any part of
the outside of the Premises, the Building or the Project or visible from the
outside of the Premises, the Building or the Project or in any lobby corridor,
hallway, entrance or other public part of the Building or the Project; however,
Landlord shall prescribe a uniform pattern for tenant identification signs to be
placed
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on the outside of the main door leading into the Premises. If a sign is required
by Tenant, then at Tenant's expense (including, without limitation, all expenses
incurred by Landlord to obtain any necessary permit or approval but Landlord
shall have no obligation to obtain a variance for any such sign), Landlord shall
cause such sign to be placed in position. Tenant shall be entitled to
representation in any interior building directory or similar listing of all of
the tenants in the Building. Landlord shall have the right at any time and from
time to time to remove any sign in order to paint or make repairs, alterations
or improvements to the Premises, the Building or the Common Areas, and to charge
Tenant for the cost incurred by Landlord to remove Tenant's sign at the
termination or earlier expiration of this Lease.
11.02 USE. Tenant shall only use the Premises for general office
purposes and for no other use without the prior written consent of Landlord.
Tenant, in Tenant's use and occupancy of the Premises, shall not subject or
permit the Premises, the Building and/or the Project to be used in any manner
which would tend to damage any portion thereof, or which would increase the cost
of any insurance paid by Landlord with respect thereto. Tenant shall not do or
permit anything to be done in or about the Premises, the Building, the Common
Areas and/or the Project which will in any way obstruct or interfere with the
rights of other tenants or occupants of the Building, the Common Areas and/or
Project, or use or allow the Premises or any portion of the Project to be used
for any improper, immoral, unlawful or objectionable purpose, nor shall Tenant
cause, maintain or permit a nuisance in, on or about the Premises, the Building,
the Common Areas and/or the Project. Tenant shall comply with all restrictive
covenants and obligations created by private contracts which affect the use and
operation of the Premises, the Building, the Common Areas and/or the Project.
Landlord reserves the right to prescribe the weight and position of all files,
safes and heavy equipment which Tenant desires to place in the Premises so as to
properly distribute the weight thereof. Further, Tenant's business machines and
mechanical equipment which cause vibration or noise that may be transmitted to
the Building structure or to any other space in the Building shall be so
installed, maintained and used by Tenant so as to eliminate such vibration or
noise. Tenant shall be responsible for all structural engineering, fees and
costs required to determine structural load.
11.03 COMPLIANCE WITH LAWS AND INSURANCE REQUIREMENTS. Tenant shall, at
Tenant's sole cost and expense, (a) comply with all "Legal Requirements" and
"Insurance Requirements," (as such terms are hereinafter defined) applicable to
the Premises and the use thereof, (b) maintain and comply with all permits,
licenses and other authorizations required by any government authority or agency
or quasi-government authority or agency for Tenant's use of the Premises and for
the proper operation, maintenance and repair of the Premises, and (c) promptly
and accurately respond in writing to all reasonable inquiries (including without
limitation requests for documents) of Landlord pertaining to Legal Requirements,
Insurance Requirements or related matters. For purposes herein, "Insurance
Requirements" means all terms of any insurance policy maintained by Landlord or
Tenant with respect to the Premises and all requirements of the National Board
of Fire Underwriters (or any other body exerting similar functions) applicable
to or affecting all or any part of the Premises. "Legal Requirements" means all
statutes, codes, ordinances, orders, regulations or directives of any government
authority or agency or quasi-government authority or agency, which now or at any
time hereafter may be applicable to Tenant or to the Premises, or any part
thereof, or any means of access thereto, including, without limitation any laws
pertaining to the regulation of the environment and Hazardous Materials (as
hereafter defined).
11.04 LANDLORD'S INSPECTION AND TESTING.
(a) TENANT'S NONCOMPLIANCE. Landlord and any employee,
representative, agent or contractor of Landlord may enter the Premises at any
time and from time to time during normal business hours for purposes of
inspecting same, and conducting tests thereupon, as Landlord reasonably deems
necessary to determine whether Tenant is in compliance with all applicable Legal
Requirements and Insurance Requirements (as such terms are defined above), but
Landlord shall not be obligated to do so. In the event Landlord has determined
that Tenant is in noncompliance, Landlord shall notify Tenant of such fact,
setting forth in such notice the basis for Landlord's determination, and Tenant
shall promptly remedy the noncompliance. If Tenant fails to promptly remedy the
noncompliance, Landlord shall have the right, but not the obligation, to take
such actions as it deems advisable to remedy the noncompliance and all costs
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and expenses incurred thereby, including without limitation legal fees and
consultant fees, shall be deemed to be Additional Rent payable by Tenant upon
demand, together with interest thereon at the Interest Rate from the date of
demand until paid in full.
(b) NOTICE TO TENANT; COSTS. Unless an emergency exists, as
determined by Landlord in its reasonable discretion, Landlord agrees to notify
Tenant at least one (1) business day prior to the date Landlord desires to
conduct such investigation and testing at the Premises, and agrees to conduct
same in a commercially reasonable manner so as to minimize the disruption to
Tenant's operations. The costs of such investigation and tests shall be included
as an Operating Expense; provided, however, that if it is determined that Tenant
is not in compliance with this Lease, said costs and expenses shall be deemed
Additional Rent payable by Tenant upon demand, together with interest thereon at
the Interest Rate from the date of demand until paid in full.
11.05 HAZARDOUS MATERIALS. In amplification of Tenant's obligations
under Section 11.03 above and not in limitation thereof, Tenant further agrees
to conduct its business operations at the Premises in compliance with all
applicable environmental laws, orders, regulations and ordinances now existing
or hereafter enacted, and to perform any act or obligation, at Tenant's sole
cost and expense, arising from or in connection with such compliance, to the
extent such compliance is required due to the nature of Tenant's business or due
to Tenant's specific use and/or occupancy of, or any act or omission of Tenant
in or about, the Premises. Tenant shall not cause or permit any Hazardous
Materials (as defined hereinbelow) to be generated, disposed of, or brought
upon, kept or used in or about the Premises, the Building and/or the Project by
Tenant, its agents, employees, contractors, licensees or invitees, except such
incidental quantities of Hazardous Materials as are commonly used in offices
(such as copier fluid, typewriter correction fluids and ordinary cleaning
solvents), provided that such incidental quantities are at all times used, kept
and stored in a manner that complies with all Legal Requirements now or
hereafter pertaining to any such Hazardous Materials. As used herein, "Hazardous
Materials" means any toxic or hazardous waste, pollutant or substance,
including, without limitation, asbestos, PCBs, petroleum products and
by-products, substances defined or listed as hazardous substances or toxic
substances or similarly defined in or pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. 69601,
et seq.; the Resource Conservation Xxxxxxxx Xxx, 00 X.X.X. 00000, et seq.; the
Clean Xxxxx Xxx, 00 X.X.X. 00000, et seq.; and the Clean Xxx Xxx, 00 X.X.X.
00000, et seq.; together with all regulations to the foregoing, and any
hazardous or toxic substance or pollutant now or hereafter regulated under any
federal, state or local environmental law, regulation or ordinance, including
those yet to be enacted, as all of such laws and regulations may be amended from
time to time.
11.06 ENVIRONMENTAL LIENS. Tenant shall promptly notify Landlord of any
liens of which Tenant becomes aware, threatened or attached against the
Premises, the Building or the Project pursuant to any environmental law, rule,
regulation or ordinance. Tenant further agrees, at its sole cost and expense, to
promptly discharge and remove any such lien arising from the violation by Tenant
of any environmental law, rule, regulation or ordinance, within thirty (30) days
from the date Tenant first receives notice of such lien or in such shorter
period of time in the event that the holder of such lien has commenced steps to
cause the Premises, the Building or the Project to be sold pursuant to such
lien, in which event Tenant shall also immediately pay the claim and remove the
lien from the Premises, the Building and/or the Project. If Tenant fails to do
so within said period, Landlord shall be entitled to exercise all of its
available rights and remedies.
11.07 INDEMNIFICATION. If Tenant breaches the covenants and obligations
set forth in this Article XI, or, if the presence of Hazardous Materials on, in
or about the Premises, the Building or the Project caused by Tenant, its agents,
employees, contractors, licensees or invitees results in contamination of all or
any portion of the Project or any other property, whether or not adjacent
thereto, or if contamination by Hazardous Materials otherwise occurs for which
Tenant is legally liable for damage resulting therefrom, then Tenant shall
indemnify, defend and hold free and harmless Landlord from and against any and
all claims, judgments, damages, penalties, fines, costs, liabilities and losses
(including, without limitation, sums paid in private rights of action or in
settlement of claims, legal fees, consultant fees and expert fees) which arise
during or
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after the Term as a result of such contamination. This indemnification by Tenant
of Landlord shall include, without limitation, any and all costs incurred with
respect to any investigation of site conditions and any cleanup, remedial,
removal or restoration work required by any federal, state or local governmental
agency or political subdivision because of the presence of such Hazardous
Materials in, on or about the Premises, the Building, the Project, or the soil
or groundwater on or under the Project.
11.08 LANDLORD'S RIGHT TO CURE. In the event Tenant fails to comply with
any provision of this Article XI, Landlord may, at its option but without
obligation, and without notice to Tenant, perform any and all of Tenant's
required obligations and otherwise cure such default as it deems appropriate in
its sole and absolute discretion. All costs and fees incurred by Landlord in the
exercise of such right, including without limitation consultant fees and legal
fees, shall be deemed Additional Rent payable by Tenant upon demand, together
with interest thereon at the Interest Rate from the date of demand until paid in
full.
11.09 SURVIVAL. The provisions of Sections 11.05, 11.06, 11.07, and
11.08, and this Section 11.09 (the "Surviving Sections") shall survive the
termination or earlier expiration of this Lease. Without limiting the foregoing,
the indemnities, environmental representations and covenants, and the
obligations imposed by the Surviving Sections on Tenant shall survive the
scheduled expiration or earlier termination of this Lease. The parties hereto
expressly acknowledge and agree that Landlord would not enter into this Lease
but for the provisions of the Surviving Sections and the survival thereof.
ARTICLE XII: DAMAGE AND DESTRUCTION
12.01 RECONSTRUCTION. If the Premises are damaged or destroyed during
the Term, Landlord shall, except as hereinafter provided, diligently repair or
rebuild them to substantially the condition in which they existed immediately
prior to such damage or destruction as determined by Landlord. If Landlord is
obligated or elects to repair or restore as herein provided, Landlord shall be
obligated to make repair or restoration of only those portions of the Building
and the Premises which were initially provided at Landlord's expense, and the
repair and/or restoration of items within the Premises not provided at
Landlord's expense shall be the obligation of Tenant. If any damage or
destruction is caused by Tenant or Tenant's Agents, then Tenant shall be
responsible for the cost of all necessary repair and reconstruction.
12.02 RENT ABATEMENT. Rent due and payable hereunder shall be abated
proportionately during any period in which, by reason of any damage or
destruction, there is substantial interference with the operation of Tenant's
business in the Premises, as reasonably determined by Landlord having regard to
the extent to which Tenant may be required to curtail and/or cease operating its
business in the Premises. Such abatement shall continue for the period
commencing with such damage or destruction and ending with a substantial
completion by Landlord of the work of repair or reconstruction which Landlord is
obligated or undertakes to perform. If Landlord determines that continuation of
Tenant's business is not practical pending reconstruction, and if Landlord does
not elect to or is unable to provide alternative temporary space for
continuation of such business, then Rent due and payable hereunder shall xxxxx
until reconstruction is substantially completed or until business is totally or
partially resumed, whichever is the earlier. Notwithstanding anything to the
contrary contained in this Section 12.02, however, there shall be no abatement
of Rent to the extent any of such damage is a result of the negligence or
intentional wrongdoing of Tenant or Tenant's Agents. In no case shall Tenant be
entitled to any compensation or damages for loss in the use in the whole or any
part of the Premises and/or any inconvenience or annoyance occasioned by such
damage, repair, reconstruction or restoration. For purposes herein, the term
"substantially completed," or any variation thereof, shall have the same meaning
as set forth in Section 3.02 hereof.
12.03 EXCESSIVE DAMAGE OR DESTRUCTION. If the Building is or the
Premises are damaged or destroyed to the extent that Landlord determines that
such damage or destruction cannot, with reasonable diligence, be fully repaired
or restored by Landlord by the earlier of (i) one hundred eighty (180) days
after the date of the damage or destruction or (ii) the expiration of the Term
hereof (either, as applicable, the "Repair Date"), Landlord may terminate this
Lease.
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Notwithstanding the fact that the Premises have been damaged or destroyed,
Landlord shall determine whether the Building can be fully repaired or restored
by the Repair Date, and Landlord's determination shall be binding upon Tenant.
Landlord shall notify Tenant of its determination, in writing, within forty-five
(45) days after the date of the damage or destruction. If Landlord determines
that the Building can be fully repaired or restored by the Repair Date, or if it
is determined that such repair or restoration cannot be made by the Repair Date
but Landlord does not elect to terminate, then this Lease shall remain in full
force and effect and Landlord shall diligently repair and restore the damage as
soon as reasonably possible. If Landlord is delayed from repairing and/or
restoring the damage to the Premises within twelve (12) months after the
occurrence of such damage or destruction (subject to extension for Force
Majeure, as described in Section 18.23 below, which shall for the purposes of
this Section 12.03 include but not be limited to delays caused by the insurance
adjustment process), Landlord or Tenant may at any time thereafter (but prior to
the substantial completion of said repair and/or restoration by Landlord)
terminate this Lease by ten (10) days prior written notice to the other,
whereupon Landlord and Tenant shall (except as otherwise expressly provided in
this Lease) be released from any further obligations under this Lease.
12.04 UNINSURED CASUALTY. Notwithstanding anything contained in this
Lease to the contrary, in the event of damage to or destruction of all or any
portion of the Premises or the Building for which Landlord is responsible, which
damage or destruction is not fully covered by the insurance proceeds received by
Landlord under the insurance policies required under Article VIII hereinabove,
Landlord may terminate this Lease by written notice to Tenant given within
forty-five (45) days after the date of notice to Landlord that said damage or
destruction is not so covered. If Landlord does not elect to terminate this
Lease (and does not terminate this Lease pursuant to any other Section of this
Article XII), the Lease shall remain in full force and effect and the Premises
and/or the Building shall be repaired and rebuilt in accordance with the
provisions for repair set forth in this Article XII.
12.05 WAIVER. With respect to any destruction which Landlord is
obligated to repair or may elect to repair under the terms of this Article XII,
Tenant hereby waives all rights to terminate this Lease pursuant to rights
otherwise presently or hereafter accorded by law to tenants, except as expressly
provided herein.
12.06 MORTGAGEE'S RIGHT. Notwithstanding anything herein to the
contrary, if the holder of any indebtedness secured by a mortgage or deed of
trust covering the Building and/or the Project requires that the insurance
proceeds be applied to such indebtedness, then Landlord shall have the right to
terminate this Lease by delivering written notice of termination to Tenant
within fifteen (15) days after such requirement is made upon Landlord. Upon any
termination of this Lease under the provisions hereof, the parties shall be
released without further obligation to the other from the date possession of the
Premises is surrendered to Landlord, except for items which are theretofore
accrued and are then unpaid and for obligations which survive termination of
this Lease.
12.07 DAMAGE NEAR END OF TERM. Notwithstanding anything to the contrary
CONTAINED in this Article XII, Landlord shall not have any obligation whatsoever
to repair, reconstruct or restore the Premises when the damage resulting from
any casualty covered under this Article XII occurs during the last two (2) years
of the Term of this Lease or any extension thereof, and in such event Landlord
shall have the option to terminate this Lease in the manner set forth in Section
12.03 above.
ARTICLE XIII: EMINENT DOMAIN
13.01 EMINENT DOMAIN. In case the whole of the Premises, or such part
thereof as, in the reasonable determination of Landlord, shall substantially
interfere with Tenant's use and occupation thereof, or such portion of the
Building or Project as, in the reasonable determination of Landlord, shall
substantially interfere with Landlord's ability to perform its obligations under
this Lease, shall be taken for any public or quasi-public purpose by any lawful
power or authority by exercise of the right of appropriation, condemnation or
eminent domain, or be sold in lieu of or to prevent such taking, either party
shall have the right to terminate this Lease effective as of
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the date possession is required to be surrendered to said authority. In the case
of a taking of a portion of the Premises, in the event the amount of property or
the type of estate taken shall not, in the reasonable determination of Landlord,
substantially interfere with the conduct of Tenant's business, Landlord shall
promptly proceed to restore the Premises to substantially their same condition
prior to such partial taking (less the portion thereof lost in such
condemnation), and the Base Rent and Tenant's Share shall be proportionately
reduced by the portion of the Premises which Tenant shall have been deprived of
on account of said taking, effective as of the date possession is required to be
surrendered to the condemning authority. In the event, however, that such taking
is for temporary use only, this Lease shall continue in full force and effect,
and Tenant shall continue to comply with all of the provisions hereof, except as
such compliance shall be rendered impossible or impracticable by reason of such
temporary taking. Rent shall xxxxx during the course of a temporary taking of
the Premises or a portion thereof to the extent and for the period of time that
the Premises or portion thereof so taken shall have been rendered untenantable.
13.02 DISPOSITION OF AWARDS. All awards to be paid in connection with
any exercise of eminent domain shall belong to Landlord without any
participation by Tenant. Tenant hereby assigns to Landlord any share of any
award which may be granted to Tenant. Notwithstanding the foregoing, Tenant may
apply separately to the condemning authority for any compensation which may be
separately awarded to Tenant by law, such as moving expenses, provided that such
compensation does not form any part of or diminish Landlord's award.
13.03 MORTGAGEE'S RIGHT. Notwithstanding anything herein to the
contrary, if the holder of any indebtedness secured by a mortgage or deed of
trust covering the Building and/or the Project requires that the condemnation
proceeds be applied to such indebtedness, then Landlord shall have the right to
terminate this Lease by delivering written notice of termination to Tenant
within fifteen (15) days after such requirement is made upon Landlord. Upon any
termination of this Lease under the provisions hereof, the parties shall be
released without further obligation to the other from the date possession of the
Premises is surrendered to Landlord, except for items which are theretofore
accrued and are then unpaid and for obligations which survive termination of
this Lease.
ARTICLE XIV: DEFAULT
14.01 EVENTS OF DEFAULT. In addition to Events of Defaults specified in
other sections of this Lease, the occurrence of any of the following events
shall constitute an "Event of Default" on the part of the Tenant with or without
notice from Landlord: (a) Tenant shall fail to pay Rent on its due date or fail
to make any other payment when required pursuant to this Lease; (b) Tenant shall
abandon or vacate any substantial portion of the Premises, whether or not Tenant
is in default of the Rent payments due under this Lease; (c) Tenant shall file a
petition or be adjudged a debtor or bankrupt or insolvent under the United
States Bankruptcy Code, as amended, or any similar law or statute of the United
States or any State, or if a petition under any of such laws shall be filed
involuntarily against Tenant and such petition is not dismissed within thirty
(30) days after Tenant receives notice of same; (d) a receiver or trustee shall
be appointed for all or substantially all of the assets of Tenant; (e) Tenant
shall make a transfer in fraud of creditors or shall make an assignment for the
benefit of creditors; (f) except as otherwise provided in subsections (a)
through (e) above or otherwise expressly provided in other Sections of this
Lease, Tenant shall fail to comply with any term, provision or covenant of this
Lease and such failure is not cured within fifteen (15) days after written
notice thereof to Tenant (said notice being in lieu of, and not in addition to,
any notice required as a prerequisite to an unlawful detainer or similar action
or claim); or (g) Tenant does any act, or any other circumstance occurs, which
this Lease expressly provides is an Event of Default hereunder.
14.02 REMEDIES.
(a) ACCELERATION AND DAMAGES. Upon the occurrence of any Event of
Default set forth in this Lease, and in addition to any other remedies available
to Landlord at law or in equity, Landlord shall have the immediate option to
terminate this Lease and all rights of Tenant hereunder. In the event that
Landlord shall elect to terminate this Lease, then Landlord
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may recover from Tenant: (i) any unpaid Rent which had accrued at the time of
such termination, plus (ii) unpaid Rent for the unexpired balance of the Term
and any exercised renewal option, plus (iii) any other amount necessary to
compensate Landlord for all the damage proximately caused by Tenant's failure to
perform Tenants obligations under this Lease or which in the ordinary course of
events would be likely to result therefrom, less (iv) the net proceeds of any
reletting after deducting all costs incurred by Landlord in connection with such
reletting attributable to the unexpired balance of the Term, including without
limitation costs of cleaning, altering or refitting the Premises, advertising,
broker fees, and legal fees for preparation and negotiation of replacement
leases ("Relet Charges"). Rent which accrued through the date of termination
shall include interest thereon at the Interest Rate, and Rent which would have
accrued for all periods after the date of termination shall be discounted to its
present value using the discount rate of ten percent (10%). The total Rent
thereby due shall accrue interest at the Interest Rate until paid in full.
(b) SUMMARY DISPOSSESS. Landlord may regain possession of the
Premises (but Landlord shall have no obligation to do so) through summary
dispossess proceedings or through any other lawful means.
(c) REMOVAL OF CONTENTS BY LANDLORD. Upon the occurrence of
any Event of Default, Landlord also shall have the right, with or without
terminating this Lease, to re-enter the Premises and remove all persons and
property from the Premises; such property may be removed and stored in a public
warehouse or elsewhere at the cost of and for the account of Tenant, without
service of notice or resort to legal process (all of which Tenant expressly
waives), and Landlord shall have no liability whatsoever to Tenant therefor,
including without limitation liability for trespass or conversion. No re-entry
or taking possession of the Premises by Landlord pursuant to this Section
14.02(c) shall be construed as an acceptance of a surrender of the Premises or
an election to terminate this Lease unless a written notice of such intention is
given to Tenant or unless the termination thereof is decreed by a court of
competent jurisdiction, and Tenant's liability under this Lease shall continue
until the date the Term and any exercised renewal option would have expired had
such termination not occurred.
(d) OPTION TO RELET. In the event of the vacation or
abandonment of the Premises by Tenant or in the event that Landlord shall elect
to re-enter as provided above or shall take possession of the Premises pursuant
to legal proceedings or pursuant to any notice provided by law, then, if
Landlord does not elect to terminate this Lease, Landlord may from time to time,
without terminating this Lease, either recover all Rent as it becomes due or
relet the Premises or any part thereof on such terms and conditions as Landlord
as its sole discretion may deem advisable, with the right to make alterations
and repairs to the Premises. In the event Landlord re-lets the Premises, Tenant
shall remain responsible for the difference in Rent received by Landlord on
account of such reletting and the Rent which would have been paid by Tenant
hereunder during the Term of this Lease and any exercised renewal option plus
all Relet Charges incurred by Landlord. Landlord shall be entitled to all
surplus earned on such reletting without accounting to Tenant therefor.
In the event that Landlord shall elect to so relet, then rents received
by Landlord from such reletting shall be applied: first, to the payment of any
Relet Charges; second, to the payment of any indebtedness other than Rent due
hereunder from Tenant to Landlord; third, to the payment of Rent due and unpaid
hereunder, and the residual, if any, shall be held by Landlord and applied to
payment of future Rent as the same shall become due and payable hereunder.
Should that portion of such rents received from such reletting during the month
which is applied to the payment of Rent be less than the Rent payable during
that month by Tenant hereunder, then Tenant shall pay any such deficiency to
Landlord immediately upon demand therefor by Landlord and such amount shall
accrue interest at the Interest Rate from the date of demand until paid in full.
Landlord shall have the right to bring suit for collection of Rent on a monthly
basis without prejudice to Landlord's right to enforce collection of Rent for
any subsequent month.
Notwithstanding any provision hereof to the contrary, Landlord shall
have no obligation or duty to relet or attempt to relet the Premises if other
unoccupied space exists at the Building.
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(e) WAIVER OF REDEMPTION. Tenant hereby waives, to the extent
legally permissible, for itself and all persons claiming by, through or under
it, any right of redemption or for restoration of this Lease under any present
or future law in the event Tenant shall be dispossessed for any cause or in case
Landlord shall obtain possession of the Premises as herein provided.
(f) LIEN ON TENANT'S PROPERTY. To the extent permitted by law,
Tenant hereby grants to Landlord a lien and security interest to secure payment
of all Rent and all other amounts due to Landlord hereunder from Tenant and to
secure payment of any damages or loss which Landlord may suffer by reason of the
breach by Tenant of this Lease. Such security interest shall encumber all goods,
wares, equipment, fixtures, furniture, improvements and other personal property
of Tenant presently or which may hereafter be situated on the Premises, and all
proceeds therefrom (together, the "Collateral"), and such property shall not be
removed without the consent of Landlord until all arrearages in Rent as well as
any and all other sums of money then due to Landlord shall have been paid in
full and all of Tenant's obligations under this Lease shall have been fully
performed by Tenant. Upon the occurrence of an Event of Default, then, in
addition to all other rights and remedies available to Landlord, Landlord may
peaceably enter upon the Premises and take possession of the Collateral, without
liability for trespass or conversion or damage to or loss of the Collateral, and
sell same at public or private sale, with or without having such property at
sale, after giving Tenant reasonable notice of the time and place of any public
or private sale. At any such sale, Landlord or its assigns may purchase unless
otherwise prohibited by law. Unless otherwise provided by law, and without
intending to exclude any other manner of giving notice, Landlord shall give
notice of any such sale to Tenant in the manner prescribed in this Lease at
least five (5) days before the time of sale. The proceeds from any such
disposition, less any and all expenses connected with the taking of possession,
holding and selling of the Collateral (including legal fees), first shall be
paid from the proceeds realized on such sale and the balance applied to amounts
due to Landlord hereunder. Any surplus shall be paid to Tenant or as otherwise
required by law and Tenant shall remain responsible for any deficiencies.
Upon request by Landlord, Tenant agrees to execute and deliver to
Landlord a financing statement, and continuation statements as needed, in form
sufficient to perfect the security interest of Landlord in the Collateral under
the provisions of the Uniform Commercial Code in force in the State where the
Premises are located. Tenant hereby irrevocably appoints Landlord as its agent
and attorney-in-fact with full power and authority to execute and deliver any
such financing statement or continuation statement on behalf of Tenant.
(g) CUMULATIVE REMEDIES. All rights, options and remedies of
Landlord contained in this Lease shall be construed and held to be cumulative,
and no one of them shall be exclusive of the other, and Landlord shall have the
right to pursue any one or all of such remedies or any other remedy or relief
which may be provided by law or equity, whether or not stated in this Lease.
Landlord shall be entitled to injunctive relief in case of the violation or
attempted or threatened violation of any covenant or provision of this Lease or
to a decree compelling performance of any covenant or provision of this Lease.
(h) NO WAIVER. No waiver of any default of Tenant hereunder shall
be implied from any acceptance by Landlord of any Rent or other payments due
hereunder or any omission by Landlord to take any action on account of such
default or if such default persists or is repeated unless such waiver is in
writing and signed by Landlord, and no written waiver shall affect defaults
other than as specified in said waiver. The consent or approval of Landlord to
or of any act by Tenant requiring Landlord's consent or approval shall not be
deemed to waive or render unnecessary Landlord's consent or approval to or of
any subsequent similar acts by Tenant. Tenant shall be responsible for all legal
fees and other costs and expenses incurred by Landlord in enforcing its rights
hereunder.
(i) CONFESSION OF JUDGMENT. IF RENT OR ANY OTHER AMOUNT DUE TO
LANDLORD HEREUNDER SHALL BE UNPAID AFTER THE DATE ON WHICH SAME WAS DUE, TENANT
HEREBY EMPOWERS ANY PROTHONOTARY, CLERK OF COURT, OR ATTORNEY OF ANY COURT OF
RECORD (AN "AUTHORIZED PARTY"), TO APPEAR FOR TENANT IN ANY AND ALL ACTIONS
WHICH MAY BE BROUGHT FOR RENT AND ANY SUCH OTHER AMOUNTS DUE TO LANDLORD
HEREUNDER, AND/OR TO SIGN FOR
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TENANT AN AGREEMENT FOR ENTERING IN ANY COURT OF COMPETENT JURISDICTION AN
AMICABLE ACTION OR ACTIONS FOR RECOVERY OF RENT AND ANY SUCH OTHER AMOUNTS DUE
TO LANDLORD HEREUNDER, AND IN SAID SUITS OR AMICABLE ACTIONS TO CONFESS JUDGMENT
AGAINST TENANT FOR ALL OR ANY PART OF RENT OR OTHER AMOUNTS DUE TO LANDLORD
HEREUNDER WHICH SHALL THEN BE UNPAID, INCLUDING WITHOUT LIMITATION AMOUNTS
PERMITTED BY SECTION 14.02(a) HEREOF, TOGETHER WITH INTEREST AT THE INTEREST
RATE HEREIN SPECIFIED, AND COSTS INCLUDING LEGAL FEES AND AN ATTORNEY COMMISSION
OF FIVE PERCENT (5%), FOR WHICH AUTHORIZATION TO CONFESS JUDGMENT THIS LEASE, OR
A TRUE AND CORRECT COPY THEREOF, SHALL BE SUFFICIENT WARRANT. SUCH AUTHORITY
SHALL NOT BE EXHAUSTED BY ONE EXERCISE THEREOF, BUT JUDGMENT MAY BE CONFESSED AS
AFORESAID FROM TIME TO TIME AS OFTEN AS ANY RENT OR OTHER AMOUNTS DUE TO
LANDLORD HEREUNDER SHALL FALL DUE OR BE IN ARREARS, AND SUCH POWERS MAY BE
EXERCISED AFTER THE EXPIRATION OF THE TERM OF THIS LEASE AND ANY RENEWAL
THEREOF.
IF THIS LEASE SHALL BE TERMINATED, WHETHER FOLLOWING AN EVENT OF DEFAULT
BY TENANT OR OTHERWISE, TENANT HEREBY EMPOWERS ANY AUTHORIZED PARTY TO APPEAR
FOR TENANT IN ANY AND ALL ACTIONS WHICH MAY BE BROUGHT FOR RECOVERY OF
POSSESSION OF THE PREMISES BY LANDLORD, AND/OR TO SIGN FOR TENANT AN AGREEMENT
FOR ENTERING IN ANY COURT OF COMPETENT JURISDICTION AN AMICABLE ACTION FOR
RECOVERY OF POSSESSION OF THE PREMISES BY LANDLORD, AND IN SAID SUITS OR
AMICABLE ACTIONS TO CONFESS JUDGMENT AGAINST TENANT IN EJECTMENT FOR POSSESSION
OF THE PREMISES, AND LANDLORD MAY COMMENCE AN ACTION FOR THE ENTRY OF AN ORDER
IN EJECTMENT FOR POSSESSION OF THE PREMISES, AND A WRIT OF POSSESSION MAY ISSUE
FORTHWITH, FOR WHICH AUTHORIZATION TO CONFESS JUDGMENT AND FOR THE ISSUANCE OF
WRITS OF POSSESSION PURSUANT THERETO THIS LEASE, OR A TRUE AND CORRECT COPY
THEREOF, SHALL BE SUFFICIENT WARRANT. IF FOR ANY REASON AFTER SAID ACTION SHALL
HAVE COMMENCED THE ACTION SHALL BE TERMINATED AND POSSESSION OF THE PREMISES
SHALL REMAIN IN OR BE RESTORED TO TENANT, LANDLORD SHALL HAVE THE RIGHT
FOLLOWING ANY SUBSEQUENT EVENT OF DEFAULT, OR UPON THE TERMINATION OF THIS
LEASE, TO COMMENCE SUCCESSIVE ACTIONS FOR POSSESSION OF REAL PROPERTY AND TO
CAUSE THE ENTRY OF SUCCESSIVE JUDGMENTS BY CONFESSION IN EJECTMENT FOR
POSSESSION OF THE PREMISES.
TENANT EXPRESSLY AGREES THAT ANY JUDGMENT, ORDER OR DECREE ENTERED
AGAINST TENANT BY OR IN ANY COURT OR MAGISTRATE BY VIRTUE OF THE FOREGOING
POWERS OR OTHERWISE SHALL BE FINAL, AND TENANT WILL NOT TAKE AN APPEAL,
CERTIORARI, WRIT OF ERROR, EXCEPTION OR OBJECTION TO SAME, OR FILE A MOTION OR
RULE TO STRIKE OR OPEN OR TO STAY EXECUTION OF SAME. TENANT RELEASES LANDLORD,
AND ANY AND ALL ATTORNEYS WHO MAY APPEAR FOR LANDLORD, FROM ALL ERRORS IN SAID
PROCEEDINGS AND ALL LIABILITIES THEREFOR.
TENANT UNDERSTANDS AND CONFIRMS THAT IN AGREEING TO THE PROVISIONS OF
THIS SECTION 14.02(i) TENANT IS KNOWINGLY WAIVING IMPORTANT DUE PROCESS RIGHTS
TO PREJUDGMENT NOTICE AND HEARING.
ARTICLE XV: ASSIGNMENT AND SUBLETTING
15.01 PROHIBITION. Tenant shall not assign, mortgage, pledge or
otherwise transfer or encumber this Lease, in whole or in part, nor sublet,
assign or permit occupancy of all or any part of the Premises by any party other
than Tenant, without the prior written consent of Landlord in each instance.
Tenant shall, at the time Tenant requests the consent of Landlord, deliver to
Landlord such information in writing as Landlord may reasonably require
respecting the proposed assignee or subtenant including, without limitation, the
name, address, nature of business, ownership, financial responsibility and
standing of such proposed assignee or subtenant; and Landlord shall have not
less than twenty (20) business days after receipt of all required information to
elect one of the following: (a) consent to such proposed assignment, encumbrance
or sublease; (b) refuse such consent, which refusal shall be in Landlord's sole
discretion; or (c) elect to terminate this Lease or, in the case of a partial
sublease, terminate this Lease as to the portion of the Premises proposed to be
sublet. As a condition for Landlord's consent to any assignment, encumbrance or
release, Landlord may require that the assignee or subtenant remit directly to
Landlord on a monthly basis all monies due to Tenant by said assignee or
subtenant. In addition, a condition to Landlord's consent to any assignment,
sublease
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or encumbrance of this Lease shall be the delivery to Landlord of a true copy of
the fully executed instrument of assignment, transfer or encumbrance and an
agreement executed by the assignee, subtenant or other transferee, in form and
substance satisfactory to Landlord and expressly enforceable by Landlord,
whereby the assignee, subtenant or transferee assumes and agrees to be bound by
the terms and provisions of this Lease and perform all the obligations of Tenant
hereunder, including, without limitation, the environmental warranties and
covenants set forth in Article XI. If Landlord does not elect to terminate this
Lease with respect to a proposed assignment or subletting, then Landlord shall
not unreasonably withhold its consent to a proposed assignment or subletting
provided that, in addition to all other requirements of this Article XV being
satisfied:
(i) The proposed subtenant or assignee is not already a
tenant in the Project;
(ii) The proposed subtenant or assignee is not a
governmental or quasigovernrnental entity or agency;
(iii) The stated or advertised rent that Tenant proposes
to charge the proposed subtenant or assignee is not less than Tenant's Base Rent
(but Tenant shall be permitted to effectively reduce such rent by the use of
concessions);
(iv) The subtenant or assignee is not a party with whom
Landlord has had discussions within nine (9) months prior to the date of the
proposed sublease or assignment concerning the possibility of such party leasing
space in the Project;
(v) The proposed subtenant or assignee is a reputable
party whose financial net worth, credit and financial responsibility is,
considering the responsibilities involved, reasonably satisfactory to Landlord;
(vi) The nature and character of the proposed subtenant
or assignee, its business or activities and intended use of the Premises is, in
Landlord's reasonable judgment, in keeping with the standards of the Project;
and
(vii) All costs incurred with respect to providing
reasonably appropriate means of ingress and egress from the sublet space or to
separate the sublet space from the remainder of the Premises shall be borne by
Tenant.
No assignment or subletting by Tenant (even if such assignment or
subletting is consented to by Landlord) shall relieve Tenant of any obligation
under this Lease. Any purported assignment or subletting contrary to the
provisions hereof without Landlord's consent shall be void. The consent by
Landlord to any assignment or subletting shall not constitute a waiver of the
necessity for such consent to any subsequent assignment or subletting. Tenant
shall reimburse Landlord for legal and other expenses and administrative costs
incurred by Landlord in connection with any request by Tenant for consent to
assignment or subletting upon demand with interest thereon at the Interest Rate
from the date of demand until paid in full.
15.02 EXCESS RENTAL. If, in connection with any assignment or sublease,
Tenant receives rent or other consideration, either initially or over the term
of the assignment or sublease, in excess of the Rent called for hereunder, or in
case of the sublease of a portion of the Premises, in excess of such Rent fairly
allocable to such portion, Tenant shall pay to Landlord, as Additional Rent
hereunder, one hundred percent (100%) of the excess of each such payment of rent
or other consideration received by Tenant promptly after its receipt.
15.03 SCOPE. The prohibition against assigning or subletting contained
in this Article XV shall be construed to include a prohibition against any
assignment or subletting by operation of law. If this Lease be assigned, or if
the underlying beneficial interest of Tenant is transferred, or if the Premises
or any part thereof be sublet or occupied by anybody other than Tenant, Landlord
shall have the right to immediately terminate this Lease or Landlord may elect
to collect Rent from the assignee, subtenant or occupant and apply the net
amount collected to the Rent herein reserved and retain any excess Rent so
collected in accordance with the terms of
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Section 15.02, but no such assignment, subletting, occupancy or collection shall
be deemed a waiver of this covenant, or the acceptance of the assignee,
subtenant or occupant as Tenant, or a release of Tenant from the further
performance by Tenant of covenants on the part of Tenant herein contained. No
assignment or subletting, regardless of whether consented to by Landlord, shall
affect in any way the continuing primary liability of Tenant (which, following
any assignment or subletting, shall be joint and several with the assignee or
subtenant), and Tenant shall not be released from performing any of the terms,
covenants and conditions of this Lease.
15.04 EFFECT OF ASSIGNMENT. Unless otherwise agreed to in writing by
Landlord, any renewal option or expansion option or similar right granted to
Tenant in this Lease shall be personal to the original Tenant named in Section
l.01(c) hereof and void upon any assignment or subletting or, with respect to a
partial subletting, void as to the portion of the Premises sublet.
15.05 WAIVER. Notwithstanding any assignment or sublease, or any
indulgences, waivers or extensions of time granted by Landlord to any assignee
or subtenant or failure of Landlord to take action against any assignee or
subtenant, Tenant hereby waives notice of any default of any assignee or
subtenant and agrees that Landlord may, at its option, proceed against Tenant
without having taken action against or joined such assignee or subtenant, except
that Tenant shall have the benefit of any indulgences, waivers and extensions of
time granted to any such assignee or subtenant.
15.06 CHANGE IN CONTROL. If Tenant is a non-reporting or closely held
company, a change in the control of such company shall be deemed for the
purposes hereof to be an assignment of this Lease. If Tenant is a partnership, a
withdrawal or change, in one or more transfers, of partners owning more than a
fifty percent (50%) interest in the partnership, shall constitute an assignment.
Any such assignments shall be subject to the provisions of this Article XV.
Notwithstanding the foregoing, Tenant shall not be required to obtain the
consent of Landlord as described in Section 15.01 hereof (but all other
provisions of Section 15.01 not specifically relating to the obtaining of
Landlord's consent shall apply) to an assignment or subletting to a "Related
Party." A "Related Party" shall be a legal entity which controls Tenant, which
Tenant controls, or which is controlled by the same entity which controls
Tenant. "Control" shall mean the ownership of at least a fifty-one percent (51%)
equity interest. Tenant shall, however, notify Landlord in writing of an
assignment or subletting to a "Related Party" at least thirty (30) days prior to
the effective date of such assignment or subletting.
ARTICLE XVI: OFFSET STATEMENT, ATTORNMENT AND SUBORDINATION
16.01 OFFSET STATEMENT. Within ten (l0) days after request therefor by
Landlord, or if, in connection with any sale, assignment or hypothecation by
Landlord of Landlord's interest in the Premises, the Building and/or the
Project, or any part thereof, an offset statement or estoppel certificate shall
be required from Tenant, Tenant shall complete, execute and deliver a
certificate in the form attached hereto as Exhibit G or in such other form as
requested by Landlord to any proposed mortgagee or purchaser, and to Landlord,
certifying (if such be the case) (i) that this Lease is in full force and effect
without modification; (ii) the date of Tenant's most recent payment of Rent,
(iii) the amount of the Security Deposit; (iv) that Tenant has no defenses or
offsets outstanding, or stating those claimed by Tenant; and (v) any other
information contained in such Exhibit G or reasonably requested by Landlord or
such proposed mortgagee or purchaser. Tenant's failure to deliver said statement
within said period shall, at Landlord's option, be an Event of Default hereunder
and shall in any event be conclusive upon Tenant that: (i) this Lease is in full
force and effect, without modification except as may be represented by Landlord;
(ii) there are no uncured defaults in Landlord's performance and Tenant has no
right to offset, counterclaim or deduction against Rent hereunder; (iii) no more
than one month's Base Rent has been paid in advance; and (iv) the Security
Deposit is as stated in the Lease.
16.02 ATTORNMENT. Tenant shall, in the event any proceedings are brought
for the foreclosure of, or in the event of exercise of the power of sale under,
any mortgage or deed of trust encumbering the Premises, the Building or the
Project, or any part thereof, made by Landlord, its successors or assigns, or in
the event of termination of a ground lease, if any, and if so requested, attorn
to the purchaser upon such foreclosure or sale or upon any grant of a deed in
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lieu of foreclosure or to the lessor of such terminated ground lease and
recognize such purchaser or ground lease lessor as landlord under this Lease.
16.03 SUBORDINATION. The rights of Tenant hereunder are and shall be, at
the election of Landlord or any mortgagee or the beneficiary of a deed of trust
encumbering the Premises, the Building or the Project, subject and subordinate
to the lien of such mortgage or deed of trust, or the lien resulting from any
other method of financing or refinancing, now or hereafter in force against the
Premises, the Building or the Project, and to all advances made or hereafter to
be made upon the security thereof. At the election of Landlord or any such
mortgagee or beneficiary, this clause shall be self-operative and no further
instrument shall be required. Notwithstanding such subordination, so long as
Tenant is not in default under any of the terms, covenants and conditions of
this Lease, if requested by Tenant, Landlord shall make a reasonable attempt to
obtain from any mortgagee or beneficiary of a deed of trust a nondisturbance
agreement in favor of the Tenant (using such mortgagee's or beneficiary's
then-standard form of such agreement) for so long as the Tenant is not in
default under this Lease, and provided Tenant agrees in said nondisturbance
agreement to attorn to the said mortgagee or beneficiary in the event it comes
into possession of the Premises. Landlord need not incur any expense or
undertake any additional liability in attempting to obtain such a nondisturbance
agreement. If requested, Tenant agrees to execute whatever documentation may be
required to further effect the provisions of this Article XVI.
16.04 MORTGAGEE'S RIGHTS. If Landlord shall notify Tenant that the
Premises, the Building or the Project are encumbered by a mortgage or deed of
trust, and in such notice set forth the name and address of the mortgagee or
beneficiary/trustee under such deed of trust, then, notwithstanding anything in
this Lease to the contrary, no notice intended for Landlord shall be deemed
properly given unless a copy thereof is simultaneously sent to such designee in
the manner provided in Section 18.01 hereof. If any mortgagee or
trustee/beneficiary shall perform any obligation that Landlord is required to
perform hereunder, such performance, insofar as Tenant is concerned, shall be
deemed performance on behalf of Landlord and shall be accepted by Tenant as if
performed by Landlord. Tenant further agrees that it shall not exercise any
right against Landlord without affording such mortgagee or trustee/beneficiary a
reasonable opportunity to cure any default of Landlord but that such mortgagee
or trustee/beneficiary shall not be obligated to undertake any action on
Landlord's behalf.
16.05 RECORDING. Tenant covenants and agrees with Landlord that Tenant
shall not record this Lease. Notwithstanding the provisions of Section 16.03, in
the event that Landlord or its lender requires this Lease to be recorded in
priority to any mortgage, deed of trust or other encumbrance which may now or at
any time hereafter affect in whole or in part the Premises, the Building, or the
Project, and whether or not any such mortgage, deed of trust or other
encumbrance shall affect only the Premises, Building, or the Project, or shall
be a blanket mortgage, deed of trust or encumbrance affecting other premises as
well, Tenant covenants and agrees with Landlord that Tenant shall execute
promptly upon request from Landlord any certificate, priority agreement or other
instrument which may from time to time be requested to give effect thereto; and
Tenant hereby irrevocably appoints Landlord as its agent and attorney-in-fact
with full power and authority to execute and deliver such instruments for and in
the name of Tenant.
16.06 RELEASE OF LANDLORD. Whenever Landlord conveys its interest in the
Premises, the Building or the Project to a purchaser thereof or successor in
title, the party so conveying its interest shall be automatically released from
the further performance of covenants on the part of Landlord herein contained,
and from any and all further liability, obligations, costs and expenses,
demands, causes of action, claims or judgments arising out of this Lease from
and after the effective date of said conveyance, it being the intent of the
parties hereto that the term "Landlord" as used in this Lease shall mean only
the then-current owner of the Premises. This Section 16.06 shall be applicable
to each owner from time to time, and shall not be limited to the first owner of
the Premises, the Building or the Project. If requested, Tenant shall execute a
form of release and such other documentation as may be required to further
effect the provisions of this Section. Failure to comply with such request
shall, at Landlord's option, constitute an Event of Default hereunder.
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ARTICLE XVII: INDEMNIFICATION AND LIABILITY
17.01 INDEMNIFICATION.
(a) INDEMNIFIED CLAIMS. In addition to Tenant's promises of
indemnification provided elsewhere in this Lease, Tenant hereby indemnifies and
agrees to defend and hold harmless Landlord, its officers, employees and agents,
and any mortgagee or beneficiary/trustee under a deed of trust, from and against
any and all claims, suits, proceedings, actions, causes of action,
responsibility, liabilities, payments, demands and expenses (including legal
fees, expert fees, and other professional fees) in connection with or arising
from: (i) Tenant's possession, use, occupation, management, repair, maintenance
or control of the Premises, the Building or the Project, or any portion thereof;
(ii) any act, omission, negligence or willful misconduct of Tenant and/or
Tenant's Agents; (iii) any default, breach, violation or nonperformance of this
Lease or any provision therein by Tenant; and (iv) injury or damages person(s)
or property or loss of life sustained in the Premises. Tenant shall defend any
actions, suits and proceedings which may be brought against Landlord, its
officers, employees or agents, or any mortgagee or beneficiary/trustee under a
deed of trust, with respect to the foregoing or in which they may be impleaded,
using legal counsel acceptable to Landlord, and shall pay, satisfy and discharge
any judgments, orders and decrees which may be recovered against same. However,
this indemnification shall not apply to any liability caused by or resulting
from the negligence or willful misconduct of Landlord, its officers, agents or
employees.
(b) NOTICE OF CLAIMS. Landlord shall promptly notify Tenant of
any claims for which Landlord seeks indemnification pursuant to this Section
17.01.
(c) PARTIES COVERED. Any indemnification of Landlord under this
Lease shall be deemed to extend to the entity named as Landlord in Section
1.01(a) hereof, and, in case Landlord shall be a joint venture, partnership,
tenancy-in-common, association, or other form of joint ownership, to the members
of any such joint venture, partnership, tenancy-in-common, association or other
form of joint ownership, and to all officers, directors, employees and agents,
and to all who succeed to Landlord's interest.
17.02 WAIVER AND RELEASE.
(a) CLAIMS AGAINST LANDLORD. Tenant hereby waives and releases
all claims against Landlord with respect to all matters for which Landlord has
disclaimed liability pursuant to the provisions of this Lease.
(b) LANDLORD'S CONSENT OR APPROVAL. Tenant will not be entitled
to make any claim, nor will Tenant make any claim, and Tenant waives any claim,
for money damages (nor will Tenant claim any money damages by way of setoff,
counterclaim or defense) based upon any claim or assertion by Tenant that
Landlord has unreasonably withheld or unreasonably delayed its consent or
approval with respect to any provision of this Lease providing for such consent
or approval. Tenant's sole remedy will be an action or proceeding to enforce any
such provision, or for specific performance, injunction or declaratory judgment.
However, unless otherwise expressly provided in this Lease, Landlord's consent
may be given or withheld in Landlord's sole discretion.
17.03 LIABILITY OF LANDLORD.
(a) NO PERSONAL LIABILITY. It is expressly understood and agreed
by and between the parties hereto, anything herein to the contrary
notwithstanding, that each and all of the representations, warranties,
covenants, undertakings and agreements herein made on the part of any Landlord
while in form purporting to be the representations, warranties, covenants,
undertakings and agreements of such Landlord are nevertheless each and every one
of them made and intended, not as personal representations, warranties,
covenants, undertakings and agreements by such Landlord, or for the purpose or
with the intention of binding such Landlord personally, but are made and
intended for the purpose only of subjecting such Landlord's interest in the
Premises and the Building to the terms of this Lease and for no other purpose
whatsoever,
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and in case of default hereunder by such Landlord (or default through, under or
by any of the agents, servants, employees or representatives of such Landlord),
Tenant shall look solely to the interests of such Landlord in the Premises and
the Building; that no Landlord shall have any personal liability to pay any
indebtedness accruing hereunder or to perform any covenant, either express or
implied, herein contained; that no personal liability or personal responsibility
of any sort is assumed by, nor shall at any time be asserted or enforceable
against, any Landlord on account of this Lease or on account of any
representation, warranty, covenant, undertaking or agreement of Landlord in this
Lease contained, either express or implied, all such personal liability, if any,
being expressly waived and released by Tenant and by all persons claiming by,
through or under Tenant; and that as to any partnership which is a Landlord a
deficit capital account of any partner of such partnership shall not be deemed
to be an asset or property of such partnership; but provided, however, that if
Landlord owes Tenant a judgment or other monetary obligation and a casualty or
condemnation related to the Premises, the Building or the Project occurs,
Tenant's judgment or monetary obligation may attach to the condemnation award or
insurance proceeds received on account of Landlord's interest in the Premises,
the Building or the Project. Such exculpation of liability shall be absolute and
without any exception whatsoever.
(b) TENANT'S PROPERTY. All property (whether real, personal or
mixed) at any time located in or upon the Premises shall be at the risk of
Tenant only, and Landlord shall not become liable for any damage to said
property or to Tenant, or to any other person or property therefor, or which may
be caused by water leakage, steam, sewerage, gas or odors or for any damage
whatsoever done or occasioned by or from any boiler, plumbing, gas, water, steam
or other pipes, or any fixtures or equipment or appurtenances whatsoever, or for
any damage arising from any act or neglect or arising by reason of the use of,
or any defect in the Premises or any of the fixtures, equipment or appurtenances
therein contained, or by the act or neglect of any other person or caused in any
other manner whatsoever, or occasioned by theft, Act of God, riot, strike or
other labor difficulty.
(c) DELAYS. Except as otherwise expressly provided herein, this
Lease and the obligations of Tenant hereunder shall be in no way affected,
impaired or excused because Landlord is unable to fulfill, or is delayed in
fulfilling, any of its obligations under this Lease.
ARTICLE XVIII: MISCELLANEOUS
18.01 NOTICES. All notices required to be given hereunder shall be in
writing and delivered to the other party by (i) certified registered mail,
return receipt requested and postage prepaid, (ii) personal delivery against
signed receipt therefor by such carrier, or (iii) by overnight delivery by
recognized carrier, postage prepaid, against signed receipt therefor by such
carrier, to the appropriate address indicated in Section 1.01 hereof or at such
other place or places as either Landlord or Tenant may, from time to time,
respectively, designate in a written notice given to the other in accordance
with this Section. Notices shall be deemed sufficiently served upon the earlier
of actual receipt or the expiration of three (3) days after the date of mailing
thereof and one (1) business day after posting with a recognized overnight
carrier.
18.02 SUCCESSORS BOUND. This Lease and each of its covenants and
conditions shall be binding upon and shall inure to the benefit of the parties
hereto and their respective assignees, subject to the provisions hereof. Any
successor or assignee of the Tenant who accepts an assignment or the benefit of
this Lease and enters into possession or enjoyment hereunder shall thereby
assume and agree to perform and be bound by the covenants and conditions
thereof. Nothing herein contained shall be deemed in any manner to give a right
of assignment to Tenant without the prior written consent of Landlord and other
than in compliance with Article XV hereof.
18.03 GUARANTOR OF TENANT. Any restriction on or requirement imposed
upon Tenant hereunder shall be deemed to extend to any guarantor of Tenant, and
to Tenant's subtenants, concessionaires and licensees, and it shall be Tenant's
obligation to cause the foregoing persons to comply with such restriction or
requirement.
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18.04 WAIVER. No waiver of any default or breach of any covenant by
either party hereunder shall be implied from any omission by either party to
take action on account of such default if such default persists or is repeated,
and no express waiver shall affect any default other than the default specified
in the waiver, and said waiver shall be operative only for the time and to the
extent therein stated. Waivers of any covenant, term or condition contained
herein by either party shall not be construed as a waiver of any subsequent
breach of the same covenant, term or condition. The consent or approval by
either party to or of any act by either party requiring further consent or
approval shall not be deemed to waive or render unnecessary their consent or
approval to or of any subsequent similar acts.
18.05 SURRENDER OF PREMISES AND HOLDING OVER. Upon expiration or other
termination of this Lease, Tenant shall immediately surrender possession of the
Premises to Landlord in substantially the same condition existing as on the
Commencement Date, reasonable wear and tear, damage by fire or other insured
casualty excepted (provided that all insurance proceeds are assigned to
Landlord), shall surrender to Landlord all keys for the Premises and shall
inform Landlord of all combinations on locks, safes and vaults, if any, in the
Premises. Should Tenant, or any of its successors in interest, hold over the
Premises or any part thereof after the expiration or earlier termination of this
Lease without Landlord's prior written consent, such holding over shall
constitute and be construed as tenancy at sufferance only, at a monthly rent
equal to two (2) times the Base Rent owed during the final, full calendar month
of the Term of this Lease and otherwise upon the terms and conditions in this
Lease, so far as applicable. Should Tenant, or any of its successors in
interest, hold over the Premises or any part thereof after the expiration or
earlier termination of this Lease with Landlord's prior written consent, such
holding over shall constitute and be construed as a tenancy from month to month
only, at a monthly rent equal to two (2) times the Base Rent owed during the
final month of the Term of this Lease and otherwise upon the terms and
conditions of this Lease, so far as applicable. The acceptance by Landlord of
Rent after such expiration or early termination shall not result in a renewal or
extension of this Lease or be deemed Landlord's consent to any holding over. The
foregoing provisions of this Section are in addition to and do not affect
Landlord's right of re-entry or any other rights of Landlord hereunder or as
otherwise provided by law. If Tenant fails to surrender the Premises on the
expiration of this Lease, Tenant shall indemnify, defend and hold harmless
Landlord from and against all loss and liability, including without limitation,
any damages suffered by Landlord due to Landlord's inability to make the
Premises available for occupancy by another party or any claim made by any
succeeding tenant, resulting from such failure to surrender by Tenant and any
legal fees and costs incurred by Landlord with respect to any such claim.
18.06 LANDLORD'S RIGHT TO PERFORM. Upon Tenant's failure to perform any
obligation of Tenant hereunder, including without limitation payment of Tenant's
insurance premiums, or charges to contractors who have supplied materials or
labor to the Premises, Landlord shall have the right to perform such obligation
of Tenant on behalf of Tenant and/or to make payment on behalf of Tenant to such
parties but shall have no obligation to do so. Tenant shall reimburse Landlord,
as Additional Rent, the cost of Landlord's performing any such obligation on
Tenant's behalf, including reimbursement of any amounts that may by expended by
Landlord for legal fees and consulting fees, together with interest at the
Interest Rate from the date reimbursement is demanded until payment is received
in full.
18.07 SUBDIVISION AND EASEMENTS. Landlord reserves the right to (i)
subdivide the Project or the land on which it is located, (ii) alter the
boundaries of the Project or the land on which it is located, and (iii) grant
easements on the Project or the land on which it is located, and dedicate for
public use portions thereof; provided, however, that no such grant or dedication
shall materially interfere with Tenant's use of the Premises or materially
reduce the type or quality of services provided by Landlord under this Lease.
Tenant hereby consents to such subdivision, boundary revision, and/or grant or
dedication of easements and agrees from time to time, at Landlord's request, to
execute, acknowledge and deliver to Landlord, in accordance with Landlord's
instructions, any and all documents, instruments, maps or plats necessary to
effectuate Tenant's consent thereto.
18.08 LANDLORD'S RESERVED RIGHTS. Landlord reserves the following
rights, exercisable without notice to Tenant except as otherwise expressly
provided herein, and without liability to
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Tenant for damage or injury to property, person or business (all such claims
being hereby released, except to the extent that they are caused by Landlord's
negligence), and without effecting an eviction or disturbance of Tenant's use or
possession or giving rise to any claim for offsets or abatements of Rent or
affecting any of Tenant's obligations under this Lease. Specification of the
rights reserved to Landlord herein shall not exclude any right accruing to
Landlord by operation of law or reserved specifically or by interference from
any provision contained in this Lease:
(a) NAME: To change the Project's or the Building's name or
street address.
(b) SIGNS: To install, affix and maintain any and all signs on
the exterior and interior of the Building and the Project, except that
installing signage on the walls of the interior of the Premises shall require
Tenant's consent. Except as otherwise provided in this Lease, Tenant shall not
install any signage that is visible from the exterior of the Building or from
within its lobbies or common corridors without Landlord's approval of the sign
and the location thereof, which may be withheld in Landlord's reasonable
discretion. Landlord reserves the right to remove at Tenant's expense any such
sign not so approved by Landlord.
(c) WINDOWS: To designate and approve, prior to installation, all
types of window shades, blinds, drapes, awnings, window ventilators and other
similar equipment and to control all the internal lighting that may be visible
from the exterior of any building in the Project.
(d) SERVICE CONTRACTS: To designate all sources furnishing sign
painting and lettering, ice and drinking water, towels, toilet supplies,
beverages, food service, shoe shining or other services in the Building, the
Project or on the Premises (as the case may be), provided that the rates for
such services as are designated by Landlord (if Landlord provides or allows such
services) are reasonably comparable with rates charges therefor in other
comparable office buildings in the vicinity of the Project. The listing of such
services in this paragraph (d) shall not be deemed an agreement or
representation by Landlord to provide or allow the provision of any such
services in the Project or on the Premises.
(e) KEYS: To retain at all times and to use passkeys to the
Premises and keys to all locks within and into the Premises. No locks or bolts
shall be altered, changed or added without the prior written consent of
Landlord.
(f) ACCESS FOR REPAIRS, ETC.: To have access to the Premises to
perform its duties and obligations under this Lease and to inspect the Premises,
make repairs, alterations, additions or improvements, whether structural or
otherwise, in and about the Premises, the Project, the Building or any part
thereof as set forth in various Sections of this Lease. Except for the case of
an emergency, Landlord shall give Tenant reasonable advance notice of its entry
into the Premises for such purposes.
(g) OCCUPANCY: To decorate, remodel, repair, alter or otherwise
prepare the Premises for reoccupancy at any time after an Event of Default has
occurred and Landlord has taken possession of the Premises through operation of
law. Such acts of Landlord shall not relieve Tenant from its obligations under
this Lease.
(h) RIGHTS TO CONDUCT BUSINESSES: To grant to anyone the
exclusive right to conduct any business or render any service in the Building or
the Project provided such exclusive right shall not operate to exclude Tenant
from or materially interfere with the use permitted by this Lease.
(i) HEAVY EQUIPMENT: To approved the weight, size or location of
safes and other heavy equipment and articles in and about the Premises, the
Project and the Building and to require all such items and furniture to be moved
into and out of the Building or anywhere else in the Project and the Premises
only at such times and in such manner as Landlord shall reasonably direct in
writing. Any furniture, equipment, curtains and similar articles desired to be
removed from the Premises or the Building shall be listed in a written notice
from Tenant to Landlord and a removal permit therefor shall be obtained from
Landlord prior to removal thereof.
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(j) SHOW PREMISES: To show the Premises to prospective
purchasers, tenants or brokers at all reasonable times, provided reasonable
prior notice is given to Tenant in each case.
(k) CLOSE BUILDING: To close or restrict access to the Building
or the Project during such hours as Landlord shall from time to time reasonably
determine, and on holidays subject, however, to Tenant's right to admittance at
all times under such regulations as Landlord may prescribe from time to time
which may include, by way of example but not of limitation, that persons
entering or leaving the Building or the Project identify themselves to a
security guard by registration or otherwise and that said persons establish
their right to enter or leave the Building or the Project.
(m) REPAIRS AND ALTERATIONS: At any time Landlord may decorate,
make alterations, additions or improvements, structural or otherwise, in or to
the Building, the Project, or any part thereof, including the Premises, and
perform any acts required or permitted hereunder or related to the safety,
protection, preservation or improvement of the Building or the Project or the
Premises, and during such operations Landlord shall have the right to take into
and through the Premises or any part of the Building all material and equipment
required and to close and temporarily suspend operation of entrances, doors,
corridors, elevators and other facilities, and to have access to and open all
ceilings, without liability to Tenant by reason of interference, inconvenience,
annoyance or loss of business. Landlord may do or permit any work to be done
upon or along, and any use of, any adjacent or nearby building, land, street,
alley or way.
(n) COMMON AREA MODIFICATIONS: To (i) make changes to the Common
Areas and/or the parking facilities located thereon, including, without
limitation, change in the location, size, shape and number of driveways,
entrances, parking spaces, parking areas, loading and unloading areas, ingress,
egress, direction of traffic, landscaped areas and walkways; (b) close
temporarily all or any portion of the Common Areas and/or the Building or the
Project in order to perform any of the items described in this Section 18.08 or
any of Landlord's obligations under this Lease, so long as reasonable access to
the Premises remains available during normal Business Hours; and (c) alter,
relocate or expand and/or to add additional structure and improvements to, or
remove same from, all or any portion of the Common Areas.
(o) OTHER RIGHTS: All other rights reserved by Landlord
pursuant to the provisions of this Lease.
18.09 RULES AND REGULATIONS. At all times during the Term, Tenant shall
comply with Rules and Regulations for the Building and the Project, as set forth
in Exhibit H attached hereto, together with such amendments and supplements
thereto as Landlord may from time to time reasonably adopt and enforce in a
non-discriminatory fashion. If any Rules and Regulations are contrary to the
terms of the Lease, the terms of this Lease shall prevail. The material
violation of any material Rules and Regulations shall be an Event of Default
under this Lease allowing Landlord all remedies for an Event of Default provided
in this Lease.
18.10 PARKING. Except as otherwise designated by Landlord, parking
spaces shall be available for the common use of the tenants, subtenants and
invitees of the Project on a nonexclusive basis, subject to any reasonable
restrictions from time to time imposed by Landlord. Tenant shall not use or
permit its officers, employees or invitees to use any spaces which have been
specifically reserved by Landlord to other tenants or for such other uses as
have been designated by appropriate governmental entities as being restricted to
certain uses. Tenant shall at all times comply and cause its officers, employees
and invitees to comply with any parking Rules and Regulations as Landlord may
from time to time reasonably adopt.
18.11 NO NUISANCE. Tenant shall conduct its business and control its
agents, employees, invitees and visitors in such a manner as not to create any
nuisance, or interfere with, annoy or disturb any other tenant or Landlord in
its operation of the Building or Project.
18.12 RELOCATION. At any time and from time to time after Tenant's
execution of this Lease, Landlord shall have the right, upon providing Tenant
thirty (30) days notice in writing, to
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provide Tenant with reasonably similar space elsewhere in the Building or the
Project of approximately the same size as the Premises and to move Tenant to
said space. In the event that Landlord shall exercise such right subsequent to
the actual occupancy of the Premises by Tenant, Landlord shall arrange for
moving Tenant and shall pay the costs of moving Tenant to such new space and all
other reasonable expenses related to such relocation. Following any such
relocation, this Lease, and each and all of the terms and covenants and
conditions hereof, shall remain in full force and effect and thereupon be deemed
applicable to such new space except that a revised floor plan shall become part
of this Lease and shall reflect the location of the new space. Tenant's Share
and Base Rent shall be adjusted to reflect the size of the new premises, but
such adjustment shall not increase the Base Rent by more than five percent
(5.0%), regardless of the size of the substituted premises. Should Tenant refuse
to move to such new space at the end of said thirty (30) day period, Landlord
shall have the right, in addition to exercising any other remedies provided in
this Lease, to terminate this Lease by notice given to Tenant in writing within
ten (10) days following the end of said thirty (30) day period, which
termination shall be effective sixty (60) days after the date of the original
notice of relocation by Landlord. Tenant shall continue to pay Rent and perform
all of its obligations hereunder until termination of this Lease.
18.13 FINANCIAL STATEMENTS. Tenant agrees, at the request of Landlord,
to furnish its current annual financial statements certified by its certified
public accountants, and, if applicable, such annual or quarterly reports as
Tenant may file with the Securities and Exchange Commission or any other
government agency.
18.14 CORPORATE AUTHORITY. Tenant represents that the undersigned
officer(s) or partner(s) have been duly authorized to enter into this Lease and
that the execution and consummation of this Lease by Tenant does not and shall
not violate any provision of any bylaws, certificate of incorporation,
partnership or agreement, or other agreement, order, judgment, governmental
regulation or any other obligations to which Tenant is a party or is subject.
18.15 QUIET ENJOYMENT. Subject to the provisions of this Lease and
conditioned upon the performance of all of the provisions to be performed by
Tenant hereunder, Landlord shall not during the Term hereof disturb the quiet
and peaceful possession of the Premises and all rights and privileges
appertaining thereto by Tenant hereunder.
18.16 WAIVER OF JURY TRIAL. Landlord and Tenant each agree to and they
hereby waive trial by jury in any action, proceeding or counterclaim brought by
either of the parties hereto against the other on any matter whatsoever arising
out of or in any way connected with the Lease, the relationship of Landlord and
Tenant, or Tenant's use or occupancy of the Premises, and any claim or injury or
damage and/or any statutory remedy.
18.17 BROKER. Tenant warrants that it has had no discussions,
negotiations and/or other dealings with any real estate broker or agent other
than the broker(s) listed in Section 1.01(e) hereof ("Broker") in connection
with the negotiation of this Lease, and that it knows of no other real estate
broker or agent who is or may be entitled to any commission or finder's fee in
connection with this Lease. Tenant agrees to indemnify, defend and hold harmless
Landlord from and against any and all claims, demands, losses, liabilities,
lawsuits, judgments, costs and expenses (including without limitation,
attorneys' fees and costs) with respect to any leasing commission or equivalent
compensation alleged to be owing on account of Tenant's discussion, negotiations
and/or dealings with any real estate broker or agent other than Broker. This
Section 18.17 is not intended to benefit any third parties and shall not be
deemed to give any rights to brokers or finders. Landlord shall pay any
commission(s) owing to Broker with respect to this Lease pursuant to a separate
agreement or agreements.
18.18 ACCORD AND SATISFACTION. No payment by Tenant or receipt by
Landlord of a lesser amount than the Rent herein stipulated shall be deemed to
be other than on account of the Rent, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment as Rent be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such Rent or pursue any
other remedy provided in this Lease.
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18.19 CAPTIONS AND ARTICLE NUMBERS. The captions, article and section
numbers and table of contents appearing in this Lease are inserted only as a
matter of convenience and in no way define, limit, construe or describe the
scope or intent or such sections or articles of this Lease nor in any way affect
this Lease.
18.20 SEVERABILITY. If any term, covenant, condition or provision of
this Lease, or the application thereof to any person or circumstance, shall to
any extent be held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, covenants, conditions or provisions
of this Lease, or the application thereof to any person or circumstance, shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated.
18.21 APPLICABLE LAW. This Lease, and the rights and obligations of
the parties hereto, shall be construed and enforced in accordance with the laws
of the state in which the Premises are located.
18.22 SUBMISSION OF LEASE. The submission of this document for
examination and negotiation does not constitute an offer to lease, or a
reservation of or option for leasing the Premises. This document shall become
effective and binding only upon execution and delivery hereof by Landlord and
Tenant. No act or omission of any officer, employee or agent of Landlord or
Tenant shall alter, change, or modify any of the provisions hereof.
18.23 TIME. Time is of the essence of every provision hereto.
Notwithstanding the foregoing, this Lease and the obligation of Tenant to pay
Rent hereunder and perform all of Tenant's covenants and agreements hereunder
shall not be impaired nor shall Landlord be in default hereunder because
Landlord is unable to fulfill any of Landlord's obligations under this Lease, if
Landlord is prevented or delayed from so doing by any of the following (which
shall be referred to herein as a "Force Majeure"): any accident, breakage,
repairs, alterations, improvements, strike or labor troubles, or any other cause
whatsoever beyond the reasonable control of Landlord, including, but not limited
to, energy shortages or governmental preemption in connection with a national
emergency, or by reason of government laws or any rule, order or regulation of
any department or subdivision thereof of any governmental agency, or by reason
of the conditions of supply and demand which have been or are affected by war or
other emergency. This provision shall be mutually applicable to Landlord and
Tenant's performance of the Lease Documents.
18.24 ENTIRE AGREEMENT. This Lease sets forth all covenants, promises,
agreements, conditions and understandings between Landlord and Tenant concerning
the Premises, the Building and the Project, and there are no covenants,
promises, agreements, conditions or understandings, either oral or written,
between Landlord and Tenant other than as are herein set forth. No subsequent
alteration, amendment, change or addition to the Lease shall be binding upon
Landlord or Tenant unless reduced to writing and signed by Landlord and Tenant.
18.25 LANDLORD'S MANAGEMENT PROVISIONS. Any services which Landlord is
required to furnish pursuant to the provisions of this Lease may, at Landlord's
option, be furnished from time to time, in whole or in part, by employees of
Landlord or by Landlord's designated property management firm for the Project or
by one or more third parties, and Landlord further reserves the right to require
Tenant to enter into reasonable agreements with any such parties in form and
content approved by Landlord for the furnishing of such services.
18.26 SPRINKLERS. If the sprinkler system (if any) installed at the
Building or the Project or any of its appliances shall be damaged or injured or
not in proper working order by reason of any act or omission of Tenant, Tenant's
agents, servants, employees, licensees or invitees (to the extent repair thereof
would not be covered by casualty insurance customarily carried on buildings
comparable to the Building), Tenant shall forthwith restore the same to good
working condition at its own expense. If the Board of Fire Underwriters or Fire
Insurance Exchange or any bureau, department or official of the state or city
government, requires or recommends that any changes, modifications, alterations
or additional sprinkler heads or other equipment be made or supplied by reason
of Tenant's business or acts or the location of partitions, trade fixtures, or
other
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contents of the Premises, Tenant shall, at Tenant's expense, promptly make
and supply such changes, modifications, alterations, additional sprinkler heads
or other equipment.
18.27 DATE PAYMENTS ARE DUE. All amounts owed to Landlord hereunder, for
which the date of payment is not expressly fixed herein, shall be paid within
thirty (30) days from the date Landlord renders statements of account therefor.
18.28 MEANING OF "RE-ENTRY". The words "re-enter" and "re-entry" as used
in this Lease are not restricted to their technical legal meaning.
18.29 LEASE MODIFICATION. Should any subsequent Mortgagee require a
modification of this Lease, which modification will not bring about any
increased cost or expense to Tenant or in any other way change the rights and
obligations of Tenant hereunder (including the modification of the Premises),
Tenant agrees that this Lease may be so modified.
18.30 LITIGATION, MEDIATION AND ARBITRATION COSTS. In the event of any
litigation, mediation or arbitration between the parties hereto with respect to
the enforcement or interpretation of this Lease, the nonprevailing party shall
pay the reasonable attorney's fees, court costs and other costs of the
prevailing party, provided that Tenant shall notify Landlord of any alleged
breach of Landlord's obligations under this Lease and shall take no action with
respect to such breach as long as Landlord promptly commences to cure and
diligently proceeds to complete the cure of said breach within a reasonable time
period, which shall in no event extend beyond ninety (90) days after Landlord
receives written notice of such default. Each party hereto shall pay the
reasonable attorney's fees, court costs (if any) and other costs incurred by the
other party in any litigation, negotiation or transaction in which such party
causes the other party, without the other party's fault, to become involved or
concerned (including, without limitation, any request for Landlord's consent to
a sublet or assignment).
18.31 REMEDIES AND RIGHTS MAY BE EXERCISED BY PARTY IN ITS OWN NAME;
AUTHORITY TO EXECUTE LEASE. All rights and remedies of either party under this
Lease, or that may be provided by law, may be exercised by such party in its own
name individually, or in its name by any agent thereof, and all legal
proceedings for the enforcement of any such rights or remedies may be commenced
and prosecuted to final judgment and executed by such party in its own name
individually or in its name by any agent thereof.
18.32 PAYMENTS TO AFFILIATES. Nothing in this Lease shall be construed
to prevent Landlord from paying for services rendered or materials delivered
with respect to the Building, the Project or the Premises (including, without
limitation, management services and contracting out capital improvements or
other capital repairs or construction items) by affiliates of Landlord provided
that the fees or costs of such services and materials are at market rates in the
vicinity of the Project. All such fees or costs paid by Landlord to such
affiliates shall be deemed to constitute Operating Expenses on the same terms
and conditions as if such fees and costs were paid to non-affiliates of
Landlord.
18.33 LANDLORD'S TITLE. Landlord's title is and always shall be
paramount to the interest of Tenant, and nothing herein contained shall empower
Tenant to do any act which can, shall or may encumber Landlord's title.
18.34 LIGHT AND AIR RIGHTS. This Lease does not grant any rights to
light or air over or about the Building or the Project, except as otherwise
provided herein. Landlord specifically excepts and reserves to itself the use of
any roofs, antennae, the exterior portions of the Premises, all rights to and
the land and improvements below the improved floor level of the Premises, the
improvements and air rights above the Premises and the improvements and rights
located outside the demising walls of the Premises, and such areas within the
Premises as are required for installation of utility lines and other
installations required to serve any occupants of the Building and the right to
maintain and repair the same, and no rights with respect thereto are conferred
upon Tenant unless otherwise specifically provided herein.
18.35 RENT NOT BASED ON INCOME. It is agreed by Landlord and Tenant that
no rental or other payment for the use, occupancy or utilization of the Premises
demised hereunder shall be,
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or is, based in whole or in part on the net income or profits derived by any
person from the Building, the Project or the Premises so leased, used, occupied,
or utilized, and Tenant further agrees that it will not enter into any sublease,
license, concession or other agreements for any use, occupancy or utilization of
the Premises which provides for a rental or other payment for such use,
occupancy or utilization based in whole or in part on the net income or profits
derived by any person from the Premises so leased, used, occupied or utilized.
18.36 NON-EXCLUSIVITY. Tenant is not granted by this Lease and shall not
be entitled to have any exclusive rights in the Building or the Project other
than the rights of its occupancy. If, however, Landlord hereafter creates a
reserved parking program for all of the tenants of the Building or the Project,
Tenant shall be allocated a portion of any such reserved parking spaces in
accordance with Tenant's Share.
18.37 EXHIBITS. The following Exhibits are attached to this Lease after
the signatures and by reference hereto are incorporated herein:
Exhibit A - Description of Project
Exhibit B - Depiction of Premises
Exhibit C - Work Letter Agreement
Exhibit D - Notice of Commencement
Exhibit E - Project Holidays
Exhibit F - Project Janitorial Specifications
Exhibit G - Offset Statement and Estoppel Certificate
Exhibit H - Rules and Regulations
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
first above-written.
WITNESSED BY: "LANDLORD"
0000 XXXXXX XXXXXXX OFFICE ASSOCIATES, L.P.,
a New Mexico limited partnership
BY: BGK EQUITIES, INC., a New Mexico corporation
BY:
------------------------ -----------------------------------------
Xxxxxx Xxxxxxxxxx, Senior Vice President
"TENANT"
BIONX IMPLANTS, INC.
------------------------- BY: /s/ Xxxxx X. Xxxxxxxx
------------------------------------------
ITS: President
-----------------------------------------
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ADDENDUM TO LEASE
DATED MARCH 31, 1997,
BETWEEN BIONX IMPLANTS, INC., AS TENANT,
AND 0000 XXXXXX XXXXXXX OFFICE ASSOCIATES, L.P., AS LANDLORD
-------------------------------------
References to "Premises" shall mean the premises leased by Tenant;
references to "Building" shall mean the building of which the Premises form a
part; references to "Real Property" shall mean the entire tax lot and all the
improvements thereon of which the Building and Premises form a part; references
to "Lease" shall mean the lease to which this addendum is attached; references
to "Lease Documents" shall mean the Lease, this addendum, any Rules and
Regulations issued by Landlord and any other applicable documents, exhibits, or
schedules which may be part of the Lease; reference to "Lease Term" shall mean
the duration of the initial term and all renewal or extension periods provided
for in the Lease; and reference to "Business Day" shall mean all days other than
Saturdays, Sundays, and legal holidays.
Any term or provision contained in the Lease to the contrary notwithstanding:
1. In the event of any inconsistency among the Lease Documents, the terms and
conditions of this addendum shall prevail over the Lease, including any
exhibits or schedules, and the terms and conditions of the Lease,
including any exhibits or schedules, shall prevail over the Rules and
Regulations.
2. The use of the Premises by Tenant shall be for general office and
warehouse use, or any other purposes permitted by law and not specifically
prohibited in the Lease Documents. It is expressly acknowledged that the
Tenant may store in the Premises, on a limited basis, small boxes of its
resorbable implant products and instruments used for inserting the
product.
3. Landlord represents that Tenant's proposed use of the Premises (a) will
not be in violation of any certificate of occupancy and (b) does not
violate any applicable statues, ordinances, rule or regulation or other
restriction.
4. Landlord represents that it will maintain and operate the Building as a
first class office building during the Lease Term.
5. The target occupancy date is May 17, 1997. If the Premises are not ready
for occupancy by August 1, 1997, subject to extensions for delays caused
by Tenant, Tenant shall have the right to terminate the Lease by written
notice to Landlord, whereupon the Lease shall be null and void and all
moneys paid by Tenant shall be refunded by Landlord. Substantial
completion means that a temporary certificate of occupancy has been
obtained and the Premises are ready for occupancy with the exception of
punch list items. Landlord shall perform its work in a first class,
workmanlike manner. If there are any latent defects or "punch list" items,
Landlord agrees to correct them within thirty (30) days following notice
from Tenant after Tenant occupies the Premises.
6. Tenant should be permitted to perform and will not be deemed in occupancy
by virtue of its performance of tenant fit-up and other preparations for
occupancy.
7. No approvals of consents required to be obtained by Tenant from Landlord
as provided in the Lease Documents shall be unreasonably withheld by
Landlord.
8. Any transfer of the Lease by Tenant resulting from a change in management,
merger, consolidation or a purchase of substantially all of Tenant's
assets shall not be deemed a sublease or assignment of the Lease or an
event giving Landlord the right to terminate the Lease or recapture the
Premises, but in the event of any such transfer, Tenant shall notify
Landlord in writing.
-38-
9. Landlord shall be responsible for all structural repairs to the Building,
including repairs of the roof, exterior walls and windows, plumbing,
heating, electrical, air conditioning and other systems contained therein.
10. Any right of entry into the Premises granted to Landlord for repairs,
alterations or other purposes shall be exercised with reasonable verbal or
written prior notice to Tenant (except in cases of emergency) and in a
reasonable manner.
11. Any right of Landlord to make alterations of improvements to the Premises
or the Real Property shall be exercisable only if the making of such
alterations or improvements will not materially adversely affect Tenant's
use and occupancy of the Premises.
12. Landlord shall permit Tenant to keep and use in the Premises, without any
further consent of Landlord, normal office computers in a local area
network and other telephone and office equipment required by Tenant.
Tenant may locate such equipment where it desires in tine' Premises and
Landlord shall provide sufficient electricity for their operation at no
additional cost to Tenant. Tenant shall have the right to install its
telephonic, communication, and network writing and other installations
during and in coordination with Landlord's work, provided that Tenant
warrants this installation and will not impede Landlord's ability to
complete Landlord's work.
13. Landlord agrees to maintain temperatures in the Premises during building
operating hours in conformity with standards of first class office
buildings in the Philadelphia metropolitan area.
14. If due to Landlord's gross negligence, Landlord shall fail to provide any
essential service required in the Lease Documents to be provided by
Landlord, including without limitation heat, air conditioning,
ventilation, electricity, water and elevator service, which failure
results in Tenant's use of the Premises being materially impaired for five
(5) consecutive business days, Tenant shall have the right to take any one
or more of the following actions: to make the essential repairs itself and
xxxx Landlord therefor; or to seek an equitable abatement of rent.
15. Landlord represents and warrants that the "Operating Expenses" and the
"Real Property Taxes" (as such terms or similar terms are used in the
Lease) incurred by Landlord during the Base Year were based upon the
Building being at least 95 % occupied and the Real Property being fully
assessed and taxed without special arrangements, preferences, abatements
or similar treatment. Upon Tenant's request, Landlord agrees promptly to
provide such reasonable substantiation of any payments beyond the fixed
monthly rent claimed to be due from Tenant resulting from claimed
increases in operating expenses, real estate taxes or otherwise. In no
event shall Tenant be responsible for payments beyond the fixed monthly
rent resulting from an assessment for improvements on the Real Property
which are not of general benefit to the tenants in the Building. (For
example, if Landlord installs improvements for the exclusive use of one or
more tenants, Tenant shall not be obligated to share in any resulting
increases in Real Property Taxes or Operating Expenses.)
16. "Operating Expenses" as referred to in the Lease shall not include the
following: (a) the cost of construction of any improvements on the Real
Property, including any addition, alteration or refurbishing of space
leased to other tenants, except that capital expenses for improvements
which result in savings of labor or other costs in connection with the
operation of the Real Property shall be included at the cost of such
improvements amortized over the useful life thereof; (b) expenses for
repairs or other work occasioned by fire, windstorm or other insurance
policy to the extent such expenses are actually reduced by Landlord's
insurance proceeds; (c) expenses incurred in leasing or procuring new
tenants for the Real Property (e.g. commissions, advertising, renovation
and legal); (d) legal expenses in dealing with particular tenants or in
enforcing the terms of any lease; (e) interest or principal amortization
payments on any mortgage or other loan; (f) any real estate taxes, as
referenced to in the Lease, corporate franchise or net worth taxes, net or
gross income taxes (state and federal), personal property taxes, excess
profit taxes, license,
-39-
inspection and permit fees; (g) any expenses incurred for which Landlord
has a right of reimbursement from a tenant in the Real Property or other
person or entity; (h) claims paid by Landlord in satisfaction or
settlement of liability in tort; (i) any payments to a superior lessor;
(j) depreciation of the Real Property or other improvements located on the
Real Property; (k) any expense relating to Me a pre-existing environmental
condition of the Real Property; and (l) wages or salaries of persons above
the grade of building manager. All expenses of employees who are not
working full time with respect to the Project shall be equitably
apportioned. All expenses paid by Landlord to persons or business entities
which are affiliated in any way with Landlord must be reasonable and
comparable to similar expenses paid by Landlords generally in arms-length
transactions in order to be includable in Operating Expenses.
17. Landlord represents and warrants that all tenants pay for their own
electricity used within their premises based upon sub-meters.
18. All fixed and additional rent payments shall be due on or before the 1st
day of each month. There shall be a five (5) day grace period before late
charges are assessed. The term "default" or "event of default" as used in
the Lease Documents shall refer either (a) to Tenant's wrongful failure to
pay rent when due or (b) any material failure of Tenant to perform its
obligations or cure a condition deemed to be an event of default under the
Lease Documents. Landlord shall have the right to exercise the remedies
provided in the Lease only if (i) any default by Tenant in the payment of
rent shall not be cured within 5 days of written notice thereof by
Landlord to Tenant, or (ii) a default by Tenant in the performance of any
other obligation under the Lease, or the existence of a condition
considered to be an event of default by Tenant under the Lease, which
shall not be cured within IS days of written notice thereof by Landlord to
Tenant, provided, however, that for defaults or conditions which
reasonably require more than 15 days to cure, Tenant shall be required to
commence and reasonably proceed with curing same and Landlord may not
exercise such remedies if Tenant commences and proceeds to cure such
defaults or conditions. No late charge or interest shall be charged unless
payments are not made within the aforesaid grace periods. The late charge
shall be 5 % of any base rent payment not made when due (not 10% as stated
in the Lease).
19. Notwithstanding anything contained herein to the contrary, in the event of
Lessee's default, Lessor shall mitigate its damages. Lessor's obligation
to mitigate damages shall be satisfied in full if Lessor complies with the
following criteria: (a) Lessor must first obtain undisputed possession of
the Leased Premises, (b) Lessor is not obligated to offer the Leased
Premises to a prospective tenant when other suitable premises in the
building are available, (c) Lessor is not obligated to lease the Premises
for less than the then current fair market rental, or for less than other
space in the building is being offered by Lessor, (d) Lessor is not
obligated to lease to any tenant who would disrupt the tenant mix, violate
any restrictions or covenants, or adversely affect the reputation of the
building and (e) Lessor is not obligated to rent to a tenant who is not
financially responsible or who does not have the necessary operating
experience.
20. Any right of Landlord to incur any expense or obligation for which it may
charge Tenant (or to exercise any right to or sell Tenant's personal
property) may be exercised only upon 30 days' advance written notice to
Tenant, such notice giving Tenant the opportunity to undertake the work or
otherwise take such actions as will eliminate the necessity for Landlord
to incur such expense or obligation or exercise such right.
21. Upon termination of the Lease, Tenant shall be entitled to remove all of
its personal property and trade fixtures, provided that it restores the
Premises to its condition at the commencement date, reasonable wear and
tear and subsequent alterations approved by Landlord excepted. In no event
shall Tenant be required to repair or restore cosmetic damage to wall and
floor finishes.
22. Any payment required by the Lease to be made by Tenant to Landlord for
legal expenses, attorney's fees or similar purposes shall only be required
if Landlord brings an action or
-40-
proceeding against Tenant to enforce Landlord's rights under the Lease and
then only as follows:
If either party should bring suit or similar proceeding against the other
because of the breach of any provision of the Lease or for any other
relief against the other, then all costs and expenses, including
reasonable attorneys' fees, incurred by the prevailing party therein shall
be paid by the other party.
23. Landlord covenants and agrees that Tenant may peaceably and quietly enjoy
the Premises during the Lease Term provided that Tenant is not in default
under the Lease.
24. In the event of a taking by public authority or otherwise which
permanently and substantially reduces the area of the Premises so that it
is rendered unfit, in Tenant's reasonable opinion, for Tenant's purposes,
Tenant shall have the right to terminate the Lease.
25. In the event of the destruction of or any damage to the Premises, if
within 125 days from the date of such damage or destruction, Landlord
fails to restore the Premises so that Tenant's use thereof is not
materially impaired. Tenant shall have the right to terminate the Lease.
26. Tenant shall not be liable to Landlord with respect to any damages
suffered by Landlord which are covered by insurance customarily carried by
Landlords. The parties agree that each hereby waives any claim it might
have against the other for loss, damage or destruction with respect to its
property, by fire or other casualty that is generally insured against
under the terms of standard fire and extended coverage insurance policies.
The parties agree to obtain waiver of subrogation clauses in their
respective insurance policies, such clauses extending to the other party
and its employees and agents.
27. HOLD HARMLESS. (A) Tenant shall indemnify, defend and hold harmless
Landlord and its officers, directors, partners, employees, attorneys and
agents (collectively, the "Tenant Indemnitees") from and against any and
all liability, claims, demands, causes of action, judgments, costs,
expenses, and all losses and damages arising from any activity in the
Premises even if resulting from the negligent act or omission of any of
the Tenant Indemnities, and from all costs, attorney fees and
disbursements, and liabilities incurred in the defense of any such claim.
Upon notice from Landlord, Tenant shall defend any such claim, demand,
cause of action or suit at Tenant's expense by counsel satisfactory to
Landlord in its reasonable discretion. The provisions of this subsection
(A) shall survive the expiration or earlier termination of this Lease.
(B) Landlord shall indemnify, defend and hold harmless Tenant and its
officers, directors, partners, employees, attorneys and agent
(collectively, the "Landlord Indemnities") for, and against any and all
liability, claims, demands, causes of action, judgments, costs, expenses,
and all losses and damages for bodily injury, death and properly damage
arising from any activity in or about the Building (other than the
Premises) even if resulting from the negligent act or omission of any of
Landlord Indemnities, and from all costs, attorney fees and disbursements,
and liabilities incurred in the defense of any such claim. Upon notice
from Tenant, Landlord shall defend any such claim, demand, cause of action
or suit at Landlord's expense by counsel satisfactory to Tenant in its
reasonable discretion. The provisions of this subsection (B) shall survive
the expiration or earlier termination of this Lease.
28. Any subordination provision contained in the Lease, relating either to
ground leases or mortgages, is subject to the express condition that so
long as Tenant is not in material default under the Lease Documents (a)
Tenant will not be made a party in any action or proceeding brought by any
person having rights superior to Tenant to recover possession of the
Premises or to foreclose any mortgage or for any other relief sought, and
(b) Tenant's possession hereunder shall not be disturbed. Upon its
request, Landlord will use its best reasonable mortgagees and ground
lessors, recognizing Tenant's right hereunder. Landlord agrees to
indemnify and save harmless Tenant from any and all damages which Tenant
may
-41-
sustain as a result of (i) any action to foreclose any mortgages of the
Real Property or Building and (ii) any terminations of the ground lease
resulting from Landlord's default thereunder.
29. Tenant shall be entitled (a) to place a sign on the door to the Premises
indicating Tenant's name, and (b) to have its name included in any
directory or registry to tenants which may be located inside or outside
the Building.
30. Tenant's use of a coffee making machine, microwave oven and kitchenette in
the Premises is expressly permitted.
31. Tenant shall comply with all Rules and Regulations of uniform
applicability and application.
32. Any notices to Tenant shall be mailed, postage prepaid, by certified mail,
return receipt requested, addressed to Tenant as follows: Bionx
Corporation, 000X, Xxxxx Xxxxxx Xxxxxxx, Xxxxxxx, XX 00000 (ATTN: Xxxxxxx
X. X'Xxxxx, C.F.O.), with a copy to Tenant at the Premises or to such
other addresses as Tenant informs Landlord in writing.
33. Tenant shall be permitted to utilize "hazardous materials" in de minimus
amounts as commonly utilized in office space provided that Tenant complies
with all laws in connection therewith. (For example, cleaning fluids,
printing toner, and other materials commonly used in normal office
applications.)
34. The following provisions are deleted from the Lease: 14.02 (f) and (i);
18.12; and 18.13.
-42-
EXHIBIT A
DESCRIPTION OF PROJECT
ALL THAT CERTAIN parcel or tract of land with the buildings and improvements
constructed thereon, situate in Whitpain Township, Xxxxxxxxxx County,
Pennsylvania, bounded and described in accordance with a plan of Sentry Parkway
West prepared by Xxxx Engineers, Lansdale, PA., for BGK Equities, dated August
6, 1996, last revised August 20, 1996, as follows, to wit:
BEGINNING at a point of curvature on the Westerly right of way line of Xxxxxx
Road 80.00 feet wide, that is to say 40.00 feet to the Northwest and 40.00 feet
to the Southeast of the center line of the original 50.00 foot road; thence from
the point of beginning by a curved line bearing to the right in a Southwest to
Northwest direction with a radius of 165.00 feet, the arc distance of 228.80
feet, to a point of tangency on the Northeasterly right of way line of Township
Line Road, 56.50 feet wide, that is to say 16.50 feet to the Southwest and 40.00
feet to the Northeast of the center line of the original 33.00 foot road, being
the township line separating Plymouth Township and Whitpain Township; thence by
the same, North 46 degrees 21 minutes West, passing over a storm culvert that
discharges to Plymouth Township, 660.67 feet to a point, a corner of land, now
or formerly of Xxxxxx Xxxxxx; thence by the same, North 43 degrees 39 minutes
East 195.00 feet to a point a corner in line of land, now or formerly, of Blue
Xxxx Office Campus, Section No. 3, of which this was formerly a part; thence by
the same the two following courses and distances, to wit: (1) South 46 degrees
21 minutes East, passing over a storm sewer, 44.62 feet to a point a corner at
or near the edge of a macadam driveway, (2) crossing various utilities from
Section No. 3 to the existing utilities in this parcel, North 43 degrees 39
minutes East 1,003.98 feet to a point in line of land, now or formerly of
Xxxxxxxxx Xxxx; thence by the same, South 47 degrees 55 minutes East 293.67 feet
to a concrete monument, a corner; thence still partly by land of Xxxxxxxxx Xxxx
and by land, now or formerly of Blue Xxxx Office Campus, Section No. 2, Lot B.
passing over several utility lines that service Section No. 2, and passing
partially through a detention pond, South 42 degrees 05 minutes West 603.89 feet
to a point, a corner; thence still by Section No. 2, Lot B. the three following
courses and distances, to wit: (1) passing over several storm drain lines
connecting detention ponds in Section No. 2 into the detention pond in this
parcel, South 47 degrees 55 minutes East 328.38 feet to a point, a corner, (2)
still crossing over storm drain lines and partially through the corner of a
detention pond, North 54 degrees 12 minutes East 112.82 feet to a point, a
corner, (3) crossing over utility lines serving Section No. 2, through this
parcel South 35 degrees 48 minutes East 225.00 feet to a corner in line of
aforementioned Northwesterly right of way line of Xxxxxx Road, 80.00 feet wide;
thence by the same, South 54 degrees 12 minutes West 556.66 feet to a point and
place of beginning.
CONTAINING in area 16.0347 acres of land, be the same more or less.
BEING Lot A, as shown on the Subdivision Plan of Blue Xxxx Office Campus One,
prepared by Xxxxxxx X. Xxxx, Inc. Recorded in Plan Book A-48 page 405 on July
21, 1987.
TOGETHER WITH all rights and privileges appurtenant to the above described land
contained in that Declaration of Covenants, Easements and Restrictions as in
Deed Book 4848, page 66, as amended by a First Amendment to Declaration of
Covenants, Easements and Restrictions dated November 13, 1987, recorded in Deed
Book 4858, page 1245.
AND ALSO TOGETHER WITH all rights and privileges appurtenant to the above
described land contained in that certain Declaration of Easement as in Deed Book
4848, page 50.
BEING ASSESSMENT PARCEL NUMBER 66-00-08158-00-2.
-1-
EXHIBIT B
DEPICTION OF PREMISES
-B-1-
EXHIBIT C
WORK LETTER AGREEMENT
THIS WORK LETTER AGREEMENT (this "Agreement") is entered into as of this 18th
day of March, 1997, by and between 0000 XXXXXX XXXXXXX OFFICE ASSOCIATES, L.P.
("Landlord"), and Bionx Implants, Inc. ("Tenant").
RECITALS:
A. Concurrently with the execution of this Agreement, Landlord and
Tenant have entered into a lease (the "Lease") covering certain premises (the
"Premises") more particularly described in Exhibit B attached to the Lease.
B. In order to induce Tenant to enter into the Lease, Landlord has
agreed to make certain improvements to the Premises in accordance with the terms
and upon the conditions set forth in this Agreement. The Lease is hereby
incorporated into this Agreement by reference to the extent applicable and
capitalized terms not otherwise defined herein shall have the same meaning given
to them in the Lease.
NOW, THEREFORE, in consideration of the Lease and the mutual covenants
hereinafter contained, Landlord and Tenant hereby agree as follows:
1. TENANT IMPROVEMENTS. Reference herein to "Tenant Improvements" shall
-------------------
include all work to be done in the Premises pursuant to the Tenant Improvement
Plans (defined in Paragraph 2 below), including (to the extent set forth in the
Tenant Improvement Plans) but not limited to: partitioning, doors, ceilings,
floor coverings, wall finished (including paint and wall covering), electrical
(including lighting, switching, telephones, outlets, etc.), plumbing, heating,
ventilating and air conditioning, fire protection, cabinets and other millwork.
2. TENANT IMPROVEMENT PLANS. Landlord's architect and/or space planner
------------------------
Xxxxx Xxxxxxxx Architects, has prepared preliminary design drawings for the
Premises dated March 14, 1997, which have been reviewed by and approved by
Tenant (the "Space Plan"). Landlord's architect shall prepare working drawings
and specifications for the Tenant Improvements based upon the Space Plans. Such
working drawings and specifications are referred to herein as the "Tenant
Improvement Plans" attached hereto as Schedule I and Schedule II. The Tenant
Improvement Plans shall be consistent with Landlord's standard specifications
(the "Standards") for tenant improvements for the Building attached hereto as
Schedule III. The Tenant Improvement Plans shall be submitted to Tenant for
approval, which shall not be unreasonably withheld or delayed, and upon approval
by both Landlord and Tenant shall serve as the plans for completing the Tenant
Improvements. If the Tenant Improvement Plans are not approved by Tenant within
two (2) business days after delivery to Tenant for review, then Landlord shall
have the option to terminate the Lease and all of its obligations thereunder.
3. NON-STANDARD TENANT IMPROVEMENTS. Prior to final approval of the
--------------------------------
Tenant Improvement Plans, Landlord shall permit Tenant to deviate from the
Standards for the Tenant Improvements and shall authorize the inclusion of such
deviations in the Tenant Improvement Plans provided that (a) the deviations
shall not be of a lesser quality than the Standards; (b) the average electric
load for lighting and power in the Premises shall not exceed 5 xxxxx per
rentable square foot; (c) the deviations conform to applicable governmental
regulations and necessary governmental permits and approvals, if any, required
for such deviations have been secured by Tenant, at Tenant's sole expense; (d)
the deviations do not require building service beyond the level normally
provided to other tenants in the Building and do not overload the floors; (e)
Landlord has determined in its sole discretion that the deviations are of a
nature and quality that are consistent with the overall objectives of Landlord
for the Building; and (f) the deviations shall not, in Landlord's determination,
cause a delay in the construction of the Tenant Improvements. Landlord may
condition its approval of any such non-standard improvements upon Tenant's
agreement, at Tenant's sole expense, to remove all or any portion of such
improvements and to restore the Premises to a condition compatible with the
remainder of
-C-1-
the Premises, as determined by Landlord in its reasonable judgment, upon the
expiration or earlier termination of the Lease.
4. CONSTRUCTION OF TENANT IMPROVEMENTS. The Tenant Improvement Plans
-----------------------------------
agreed upon by Landlord and Tenant shall be submitted by Landlord to the
appropriate governmental body for plan checking and the issuance of a building
permit. Landlord, with Tenant'scooperation, shall cause to be made to the Tenant
Improvement Plans any changes necessary to obtain the building permit. After
final approval of the Tenant Improvement Plans by applicable governmental
authorities, no further changes may be made thereto without the prior written
approval of both Landlord and Tenant, and then only after agreement by Tenant to
pay any excess costs resulting from the design and/or construction of such
changes. After a building permit for the Tenant Improvements has been issued,
Landlord shall cause its contractor to begin installation of the Tenant
Improvements in accordance with the Tenant Improvement Plans. Landlord shall
supervise the completion of such work and shall diligently pursue substantial
completion of the work. Landlord shall have the right to substitute comparable
materials or finishes in the event such items are unavailable, but, to the
extent practicable, shall obtain Tenant's prior consent thereto, which consent
shall not be unreasonably withheld or delayed. Landlord shall in no event be
liable for any direct or indirect damages as a result of delays in construction
due to Force Majeure, or due to delays or other acts or omissions by Tenant (or
its architect or anyone performing services on behalf of Tenant).
5. PAYMENT FOR THE TENANT IMPROVEMENTS. The cost for construction of the
-----------------------------------
Tenant Improvements shall be included in the Base Rent.
6. AMERICANS WITH DISABILITIES ACT. In installing the Tenant
-------------------------------
Improvements, Landlord shall comply with the Americans with Disabilities Act of
1990 (the "ADA"), to the extent such compliance is required as of the date of
completion of the Tenant Improvements. Notwithstanding the foregoing, however,
with respect to any alterations or improvements that Tenant makes to the
interior of the Premises (or which are made on Tenant's behalf) other than the
Tenant Improvements, regardless of whether Tenant has obtained Landlord's
consent to such alterations or improvements, Tenant shall be fully responsible
for complying with and paying any costs associated with any and all requirements
of the ADA. In addition, if any alterations are required to be made to the
Premises due to changes in or regulations under the ADA or judicial
interpretations of the requirements of the ADA coming into existence following
completion of the Tenant Improvements, or due to changes in Tenant's use of the
Premises or in the nature of Tenant's conduct of its business in the Premises
(including but not limited to any changes in use or business conduct arising out
of a sublease or assignment, or resulting in the Premises being deemed a "place
of public accommodation" under the ADA), Tenant shall be fully responsible for
complying with and paying any costs associated with any and all requirements of
the ADA arising in connection therewith.
7. TENANT'S RESPONSIBILITY FOR CHARGES. In the event Landlord terminates
-----------------------------------
the Lease because of Tenant's failure to cooperate or timely respond as set
forth in this Agreement, then, in addition to all rights and remedies available
to Landlord in the Lease, Landlord shall have the right to require Tenant to
reimburse Landlord for all of its expenses incurred in preparation of the Space
Plans and the Tenant Improvement Plans, and in obtaining governmental approval
of same, and in installing any of the Tenant Improvements, which amount shall
accrue interest at the Interest Rate from the date of termination of the Lease
until paid in full, together with all legal fees incurred in enforcement of
Landlord's rights hereunder.
8. COMPLETE AGREEMENT. This Agreement and the applicable provisions of
------------------
the Lease are the complete and entire agreement of Landlord and Tenant with
respect to the Tenant Improvements and construction thereof at the Premises.
This Agreement may not be amended except by written agreement signed by Landlord
and Tenant. Oral modifications to the Agreement shall not be effective.
-C-2-
SCHEDULE II
-----------
TENANT IMPROVEMENT PLANS
1. DEMOLITION: Demolish existing partitions per plans and
specifications.
2. PARAGONS: Provide materials & labor required by plans
and specifications. Miscellaneous speckling.
3. DOORS: Provide & install the following as required
by plans & specifications:
1) 6' x 8' new building standard c-label
door/frame hardware
4. ACOUSTICAL CEILING: Replace damaged/stained tiles
5. FLOORING: Provide and install the following as
required by plans & specifications:
Carpet: Aladdin
Vinyl Cove Base
VCT
6. ELECTRICAL: Relocate outlet/lights as required by plans
and specifications.
7. PAINTING/WALL COVERING: Paint all wall and trim surfaces per plans
and specifications.
8. MISCELLANEOUS: Construction clean-up.
-C-4-
SCHEDULE III
------------
SENTRY PARKWAY WEST
BUILDING STANDARD SPECIFICATIONS
1. CEILINGS: 2' x 4' non-fissured acoustical lay-in tile
with suspended, exposed "T" framing system.
2. CARPET: Fourteen dollars ($14.00) per square yard
installed allowance with selection from
owner samples. Installation by direct glue
down method with four-inch (4") vinyl base.
3. PAINT: Paint all partition surfaces with two (2)
coats latex paint; door frames and trim with
two (2) coats oil finish.
4. TENANT ENTRANCE DOORS: Entrance doors shall be 3' x 8' solid core
stain grade furnished with two (2) pair of
butts, exposed closer and Schlage lever
handle lockset (two keys) in brushed
aluminum.
5. TENANT INTERIOR DOORS: Interior doors shall be 3' x 7' solid core
stain grade furnished with two (2) pair of
butts, and wall stop in a quantity not to
exceed one 91) door per 400 square feet of
usable area. Each door to receive Schlage
lever handle passage set.
6. ELECTRICAL: a) LIGHTS: Building standard lighting
-------
fixtures shall be 2' x 4' lay on
four tube fluorescent fixtures with
electronic ballasts, T-8 bulbs, at
an allowance of one fixture per 150
square feet of usable area. Fixtures
will be outfitted with prismatic
lenses.
b) DUPLEX OUTLETS: Outlets mounted at
---------------
building standard height for wall
application shall be provided at an
allowance of one outlet per 100
square feet.
c) Dedicated receptacles and any
special equipment receptacles shall
be provided at tenant's expense.
d) Exit lights and emergency lighting
will be provided as required by
code.
7. TELEPHONE: Each tenant must arrange for and pay for its
own telephone requirements directly. Phone
outlet locations can be indicated on
construction documents at tenant's request.
-C-5-
EXHIBIT D
NOTICE OF COMMENCEMENT OF LEASE
This Notice of Commencement of Lease is given this, 19_, by 0000 XXXXXX
XXXXXXX OFFICE ASSOCIATES, L.P. ("Landlord"), to ("Tenant"), both of whom who
agree as follows:
1. Landlord and Tenant have entered into a lease :dated , 19 (the
"Lease"), in which Landlord leased to Tenant and Tenant lease from Landlord the
premises described therein (the "Premises"). All capitalized terms used herein
and not otherwise defined herein shall have the same meaning given to them in
the Lease.
2. Pursuant to the Lease, Landlord and Tenant agreed to, and do
hereby confirm, the following matters as of the commencement of the Term:
(a) ________________________, 19__ , is the Commencement Date
of the Term of the Lease; and
(b) ________________________, 19_, is the Expiration Date of
the Term of the Lease.
3. Tenant confirms that:
(a) It has accepted possession of the Premises;
(b) The Tenant Improvements required to be furnished by Landlord
under the Lease have been completed (subject to any corrective work or
punch-list items of which Tenant has notified Landlord in accordance with the
Lease);
(c) Landlord has fulfilled all of its duties of an inducement
nature;
(d) No modifications have been made to the Lease after it was
signed by Landlord and Tenant; and
(e) There are no setoffs or credits against Rent, and no Rent
(other than the first monthly installment of Base Rent) has been prepaid.
4. This Notice of Commencement of Lease is intended only to confirm
the matters herein set forth and does not otherwise modify or supplement the
Lease.
5. Unless written objection to the provisions hereof is received by
Landlord within five (5) business days from the date hereof, the provisions of
this Notice of Commencement of Lease shall be binding upon Tenant, its
successors and assigns (subject to the restrictions on assignment and subleasing
contained in the Lease), and inure to the benefit of Landlord, and its
successors and assigns.
"LANDLORD"
0000 XXXXXX XXXXXXX OFFICE ASSOCIATES, L.P.
BY:_________________________________________
ITS:________________________________________
-D-1-
EXHIBIT E
PROJECT HOLIDAYS
New Year's Day; President's Day; Xxxxxx Xxxxxx Xxxx Day; Memorial Day; July 4th;
Labor Day; Thanksgiving Day; Day After Thanksgiving Day; Christmas Day.
-E-1-
EXHIBIT F
BUILDING JANITORIAL SPECIFICATIONS
General cleaning shall be performed five (5) nights per week, Monday through
Friday, the exact hours to be determined by Landlord.
A. DAILY CLEANING SPECIFICATIONS
-----------------------------
1. Empty all trash containers and waste baskets.
2. Replace all trash liners where applicable.
3. Dust all open areas of desk and credenza tops, file cabinets,
counters, xxxxx and ledges.
4. Telephones will be damp wiped.
5. Dust mop all hard surfaces flooring and remove debris or dust
build-up from corners. Damp mop any areas where spillage may have
occurred. Special attention given to areas under desks and
furniture.
6. Vacuum clean and/or sweep entrance mats and runners.
7. Vacuum all carpeted areas. Remove gum, tar, etc. adhering to
floor.
8. Vacuum clean or dust all upholstered furniture as necessary.
9. Remove finger marks and smudges from all doors, frames, walls,
partitions, switchplates and glass.
10. Place furniture back in its proper place.
11. Wash and squeegee clean all entrance door glass on both sides.
12. Damp wipe framework and ledges at all entrance ways.
13. Special attention is to be paid to all lobby areas, reception
areas, executive and conference areas to maintain quality of
appearance.
14. Spot clean all common area carpet.
15. Areas provided for storage of maintenance supplies and equipment
are to be kept orderly and clean at all times.
16. Trash and debris is to be removed to areas so designated at the
site.
17. Clean and polish all drinking fountains and water coolers.
18. Cleaning and disinfecting lavatories:
A. Empty all waste containers.
B. Sweep and mop floors.
C. Fill and maintain all toilet tissue, soap and towel
dispensers and sanitary product dispensers.
D. Disinfect all fixtures and disposals.
E. Thoroughly clean all sinks, bowls and urinals.
F. Clean all counter tops and cosmetic shelves.
G. Clean and polish all mirrors and bright work.
H. Partitions and louvres wiped down and spot cleaned.
-F-1-
19. Thoroughly clean elevator cabs, including all tracks.
20. Sweep all steps and fire stairways in building.
21. Clean coffee stations, vending areas, and cafeteria, including
tables, chairs and counters.
22. The exterior entrance foyer areas will be swept nightly and
debris removed.
B. ONCE PER WEEK:
-------------
1. Damp mop stairwells, landing, treads and foyer.
2. Vacuum all carpet areas. Remove gum, tar, etc. adhering to
floors.
3. Damp mop all vinyl flooring and spray buff as needed at least
weekly.
4. Spot clean carpeting where possible.
C. ONE TIME PER MONTH:
-------------------
1. Damp wipe all baseboards to maintain a clean appearance.
High dust all areas including light diffusers, shelving,
baseboards, Venetian blinds and wall hangings.
2. Machine scrub all bathroom floors with germicidal solution.
3. Vacuum and/or damp wipe all ceiling and wall air supply and
exhaust diffusers or grills.
D. QUARTERLY:
---------
1. Strip and refinish all vinyl tile flooring on a quarterly basis.
2. Clean all interior glass partitions and doors.
3. Polish all door plates and kick plates.
E. SEMI-ANNUALLY:
--------------
F. ANNUAL:
------
1. High dust all horizontal and vertical surfaces not reached daily.
2. Damp wash diffusers, vents, grills, including surrounding wall or
ceiling areas that were not soiled.
-F-2-
EXHIBIT G
OFFSET STATEMENT AND ESTOPPEL CERTIFICATE
_______________________________
_______________________________
_______________________________
Re: Lease dated ("Lease") by and between 0000 XXXXXX XXXXXXX OFFICE
ASSOCIATES, L.P. ("Landlord"), and ____________________________________________
("Tenant")
Sir/Madam:
Reference is made to the above-described Lease in which the undersigned
is Tenant. We understand that you are accepting an assignment of Landlord's
rights under the Lease as __________________________________________________,
and we hereby, as a material inducement for you to consummate the transaction,
represent that:
1. A true and correct copy of the Lease is attached hereto as Schedule
"A" and incorporated herein by reference thereto. There are no modifications,
amendments, supplements, arrangements, side letters or understandings, oral or
written, of any sort, modifying, amending, altering, supplementing or changing
the terms of the Lease, except for those attached hereto as part of Schedule
"A".
2. The Lease is for a term of commencing on _________________, 19_ and
ending as of 11:59 P.M. on __________________________, and the Lease covers the
real property (the "Premises") described in Exhibit A attached to the Lease, the
Premises being part of certain real property (the "Property") located in
____________________, County of ____________, State of ___________________, and
more particularly described in Exhibit B attached to the Lease.
3. The Lease is in full force and effect, and the Lease has been duly
executed and delivered by, and is a binding obligation of, Tenant as set forth
therein.
4. The undersigned acknowledges (a) that rent on the Lease has been paid
up to and including ________________ , 19__, (b) that monthly Base Rent (as
defined in the Lease) during the remaining term of the Lease is
$__________________, and (c) that rent has not been paid for any period after
_______________, 19__, and shall not, except for any prepaid rent as specified
in the Lease, be paid for a period in excess of one (1) month in advance.
5. To the best knowledge of the undersigned, the improvements on the
Premises are free from defects in design, materials and workmanship; and the
improvements meet all governmental requirements, including, but not limited to,
zoning and environmental requirements.
6. To the best knowledge of the undersigned, the Lease is not in
default, and Landlord has performed the obligations required to be performed by
Landlord under the terms thereof through the date hereof.
7. The Lease shall be subordinate to a deed of trust or mortgage on the
Premises and an assignment of Landlord's interest in the Lease given by Landlord
to __________________; and in the event of a merger of Landlord and Tenant in
any manner, the interest of Tenant and Landlord shall not merge.
8. Tenant agrees not to modify, amend, terminate or otherwise change the
Lease without ten (10) days prior written notice to you.
-G-1-
9. In the event of a default by Landlord under any of the terms or
provisions of the Lease, Tenant shall give you adequate notice and reasonable
time to cure such default before Tenant shall exercise any right or remedy
available to it.
Dated __________________________, 19__.
Very truly yours,
"Tenant"
By:_________________________________
Its:________________________________
-G-2-
EXHIBIT H
RULES AND REGULATIONS
The following rules and regulations shall apply, where applicable, to the
Premises, the Building, the parking garage associated therewith (if any), the
Project and the appurtenances thereto:
1. Sidewalks, doorways, vestibules, halls, stairways and other similar
areas shall not be obstructed by Tenant or used by Tenant for any purpose other
than ingress and egress to and from the Premises. No rubbish, litter, trash, or
material of any nature shall be placed, emptied or thrown in those areas. At no
time shall Tenant permit Tenant's employees to loiter in Common Areas or
elsewhere in or about the Building or Project.
2. Plumbing fixtures and appliances shall be used only for the purposes
for which designed, and no sweepings, rubbish, garbage or other unsuitable
material shall be thrown or placed therein. Damage resulting to any such
fixtures or appliances from misuse by Tenant or its agents, employees or
invitees, shall be paid for by Tenant, and Landlord shall not in any case be
responsible therefor.
3. No signs, advertisements or notices shall be painted or affixed on or
to any windows, doors or other parts of the Building or the Project, except
those of such color, size, style and in such places as shall be first approved
in writing by Landlord. No nails, hooks or screws shall be driven or inserted
into any part of the Premises or any building in the Project except by the
Project maintenance personnel, nor shall any part of the Project be defaced by
Tenant.
4. Landlord may provide and maintain in the first floor (main lobby) of
the Building an alphabetical directory board listing all tenants of the
Building, and no other directory shall be permitted unless previously consented
to by Landlord in writing.
5. Tenant shall not place any additional lock or locks on any door in
the Premises or the Building without Landlord's prior written consent. A
reasonable number of keys to the locks on the doors in the Premises shall be
furnished by Landlord to Tenant at the cost of Tenant, and Tenant shall not have
any duplicate keys made. All keys shall be returned to Landlord at the
expiration or earlier termination of this Lease.
6. Tenant will refer to Landlord for Landlord's supervision, approval,
and control all contractors, contractor's representatives, and installation
technicians rendering any service to Tenant, before performance of any
contractual service. Such supervisory action by Landlord shall not render
Landlord responsible for any work performed for Tenant. This provision shall
apply to all work performed in the Building or the Project, including but not
limited to the installation of telephones, computer wiring, cabling, equipment,
electrical devices, attachments and installations of any nature. Tenant shall be
solely responsible for complying with all applicable laws, codes and ordinances
pursuant to which said work shall be performed.
7. Movement in or out of the Building of furniture or office equipment,
or dispatch or receipt by Tenant of any merchandise or materials which require
the use of elevators, stairways, lobby areas, or loading dock areas, shall be
restricted to hours designated by Landlord. Tenant must seek Landlord's prior
approval by providing in writing a detailed listing of any such activity. If
approved by Landlord, such activity shall be under the supervision of Landlord
and performed in the manner stated by Landlord. Landlord may prohibit any
article, equipment or any other item form being brought in the Building or the
Project. Tenant is to assume all risk for damage to articles moved and injury to
any persons resulting from such activity. If any equipment, property, and/or
personnel of Landlord or any of any other tenant is damaged or injured as a
result of or in connection with such activity, Tenant shall be solely liable for
any and all damage or loss resulting therefrom.
8. Landlord shall have the power to prescribe the weight and position of
safes and other heavy equipment or items, which in all cases shall not in the
opinion of Landlord exceed
-H-1-
acceptable floor loading and weight distribution requirements. All damage done
to the Building or the Project by the installation or removal of any property of
Tenant, or done by Tenant's property while in the Building or the Project, shall
be repaired at the expense of Tenant.
9. Corridor doors, when not in use, shall be kept closed.
10. Tenant shall not: (i) make or permit any improper, objectionable or
unpleasant noises or odors in the Building or the Project, or otherwise
interfere in any way with other tenants or persons having business with them;
(ii) solicit business or distribute, or cause to be distributed, in any portion
of the Building or the Project, any handbills, promotional materials or other
advertising; or (iii) conduct or permit any other activities in the Building or
the Project that might constitute a nuisance.
11. No animals, except seeing eye dogs, shall be brought into or kept
in, on or about the Premises.
12. No inflammable, explosive or dangerous fluid or substance shall be
used or kept by Tenant in the Premises, the Building or the Project.
13. Tenant shall not use or occupy the Premises in any manner or for any
purpose which would injure the reputation or impair the present or future value
of the Premises, the Project or the Building; without limiting the foregoing,
Tenant shall not use or permit the Premises or any portion thereof to be used
for lodging, sleeping or for any illegal purpose.
14. Tenant shall not take any action which would violate Landlord's
labor contracts affecting the Building or the Project or which would cause any
work stoppage, picketing, labor disruption or dispute, or any interference with
the business of Landlord or any other tenant or occupant of the Building or the
Project or with the rights and privileges of any person lawfully in the Building
or the Project. Tenant shall take any actions necessary to resolve any such work
stoppage, picketing, labor disruption, dispute or interference and shall have
pickets removed and, at the request of Landlord, immediately terminate at any
time any construction work being performed in the Premises giving rise to such
labor problems, until such time as Landlord shall have given its written consent
for the resumption of such work. Tenant shall have no claim for damages of any
nature against Landlord or any of Landlord's agents, employees, contractors or
officers connection therewith, nor shall the date of the commencement of the
Term be extended as a result thereof.
15. Tenant shall utilize the termite and pest extermination service
designated by Landlord to control termites and pests in the Premises. Tenant
shall bear the cost and expense of such extermination services, provided that
Tenant shall not be obligated to pay more for its participation in such termite
and pest extermination services than the prevailing competitive rates charged by
reputable independent termite and pest control exterminators for the same
service on a direct and individual basis.
16. Tenant shall not install, operate or maintain in the Premises or in
any other area of the Building, any electrical equipment which does not bear the
U/L (Underwriters Laboratories) seal of approval, or which would overload the
electrical system or any part thereof beyond its capacity for proper, efficient
and safe operation as determined by Landlord, taking into consideration the
overall electrical system and the present and future requirements therefor in
the Building.
17. Tenant shall not operate or permit to be operated on the Premises
any coin or token operated vending machine or similar device (including, without
limitation, telephones, lockers, toilets, scales, amusement devices and machines
for sale of beverages, foods, candy, cigarettes or other goods), except for
those vending machines or similar devices which are for the sole and exclusive
use of Tenant's employees, and then only if such operation does not violate the
lease of any other tenant of the Project.
-H-2-
18. Bicycles and other vehicles are not permitted inside or on the
walkways outside the Building or in the Project, except in those areas
specifically designated by Landlord for such purposes.
19. Landlord may from time to time adopt appropriate systems and
procedures for the security or safety of the Project, its occupants, entry and
use, or its contents. Tenant, Tenant's agents, employees, contractors, guests
and invitees shall comply with Landlord's reasonable requirements relative
thereto.
20. Landlord shall have the right to prohibit the use of the name of the
Building, the Project or any other publicity by Tenant that in Landlord's
opinion may tend to impair the reputation of the Building or the Project or the
desirability of the Building or the Project for Landlord or other tenants. Upon
written notice from Landlord, Tenant will refrain from and/or discontinue such
publicity immediately.
21. Tenant shall carry out Tenant's permitted repair, maintenance,
alterations, and improvements in the Premises only during times agreed to in
advance by Landlord and in a manner which will not interfere with the rights of
other tenants in the Project.
22. Canvassing, soliciting, and peddling in or about the Building or the
Project is prohibited. Tenant shall cooperate and use its best efforts to
prevent the same.
23. At no time shall Tenant permit or shall Tenant's agents, employees,
contractors, guests, or invitees smoke in any Common Area of the Building or the
Project, unless such Common Area has been declared a designated smoking area by
Landlord.
24. Tenant shall observe Landlord's rules with respect to maintaining
standard window coverings at all windows in the Premises so that the Building
presents a uniform exterior appearance. Tenant shall ensure that to the extent
reasonably practicable, window coverings are closed on all windows in the
Premises while they are exposed to the direct rays of the sun.
25. All deliveries to or from the Premises shall be made only at such
times, in the areas and through the entrances and exits designated for such
purposes by Landlord. Tenant shall not permit the process of receiving
deliveries to or from the Premise outside of said areas or in a manner which may
interfere with the use by any other tenant of its premises or any common areas,
any pedestrian use of such area, or any xxx which is inconsistent with good
business practice.
-H-3-
MASTER LEASE FORM
0000 XXXXXX XXXXXXX OFFICE ASSOCIATES, L.P.
SENTRY PARK WEST,
BLUE XXXX, PENNSYLVANIA
LEASE
BETWEEN
0000 XXXXXX XXXXXXX OFFICE ASSOCIATES, L.P.,
a New Mexico limited partnership,
LANDLORD
AND
BIONX IMPLANTS, INC.
TENANT
TABLE OF CONTENTS
ARTICLE I: DEFINITIONS
Section 1.01 Defined Terms
ARTICLE II: DEMISE AND LEASE
Section 2.01 Demise and Lease
Section 2.02 Representations and Warranties; Taking of
Possession
Section 2.03 Common Areas
ARTICLE III: IMPROVEMENTS
Section 3.01 Tenant Improvements
Section 3.02 Completion and Delivery
ARTICLE IV: TERM
Section 4.01 Term
Section 4.02 Notice of Commencement Date
Section 4.03 Renewal Options
Section 4.04 Termination Option
ARTICLE V: RENT
Section 5.01 Base Rent
Section 5.02 Additional Rent
Section 5.03 Manner of Payment
Section 5.04 Late Payment and Interest
Section 5.05 Security Deposit
ARTICLE VI: ADDITIONAL RENT AND CHARGES
Section 6.01 Tenant's Obligation for Taxes
Section 6.02 Tenant's Share of Real Property Taxes, Utility
Costs, and Operating Expenses
ARTICLE VII: SERVICES AND UTILITIES
Section 7.01 Landlord's Services
Section 7.02 Electricity
ARTICLE VIII: INSURANCE
Section 8.01 Landlord's Insurance
Section 8.02 Public Liability
Section 8.03 Tenant's Property and Other Insurance
Section 8.04 Additional Insurance
Section 8.05 Form of Insurance/Certificates
Section 8.06 Tenant's Failure
Section 8.07 Waiver of Subrogation
Section 8.08 Tenant's Property and Fixtures
Section 8.09 Indemnification of Landlord
Section 8.10 Notification from Tenant
ARTICLE IX: REPAIRS AND MAINTENANCE
Section 9.01 Tenant Repairs and Maintenance
Section 9.02 Landlord Repairs and Maintenance
Section 9.03 Non-Liability of Landlord
Section 9.04 Inspection of Premises
ARTICLE X: FIXTURES, PERSONAL PROPERTY AND ALTERATIONS
Section 10.01 Fixtures and Personal Property
Section 10.02 Alterations
Section 10.03 Liens
ARTICLE XI: USE AND COMPLIANCE WITH LAWS
Section 11.01 Signs
Section 11.02 Use
Section 11.03 Compliance with Laws and Insurance Requirements
Section 11.04 Landlord's Inspection and Testing
Section 11.05 Hazardous Materials
Section 11.06 Environmental Liens
Section 11.07 Indemnification
Section 11.08 Landlord's Right to Cure
Section 11.09 Survival
ARTICLE XII: DAMAGE AND DESTRUCTION
Section 12.01 Reconstruction
Section 12.02 Rent Abatement
Section 12.03 Excessive Damage or Destruction
Section 12.04 Uninsured Casualty
Section 12.05 Waiver
Section 12.06 Mortgagee's Right
Section 12.07 Damage Near End of Term
ARTICLE XIII: EMINENT DOMAIN
Section 13.01 Eminent Domain
Section 13.02 Disposition of Awards
Section 13.03 Mortgagee's Right
ARTICLE XIV: DEFAULT
Section 14.01 Events of Default
Section 14.02 Remedies
ARTICLE XV: ASSIGNMENT AND SUBLETTING
Section 15.01 Prohibition
Section 15.02 Excess Rental
Section 15.03 Scope
Section 15.04 Effect of Assignment
Section 15.05 Waiver
Section 15.06 Change in Control
ARTICLE XVI: OFFSET STATEMENT, ATTORNMENT
AND SUBORDINATION
Section 16.01 Offset Statement
Section 16.02 Attornment
Section 16.03 Subordination
Section 16.04 Mortgagee's Rights
Section 16.05 Recording
Section 16.06 Release of Landlord
ARTICLE XVII: INDEMNIFICATION AND LIABILITY
Section 17.01 Indemnification
Section 17.02 Waiver and Release
Section 17.03 Liability of Landlord
ARTICLE XVIII: MISCELLANEOUS
Section 18.01 Notices
Section 18.02 Successors Bound
Section 18.03 Guarantor of Tenant
Section 18.04 Waiver
Section 18.05 Surrender of Premises and Holding Over
Section 18.06 Landlord's Right to Perform
Section 18.07 Subdivision and Easements
Section 18.08 Landlord's Reserved Rights
Section 18.09 Rules and Regulations
Section 18.10 Parking
Section 18.11 No Nuisance
Section 18.12 Relocation
Section 18.13 Financial Statements
Section 18.14 Corporate Authority
Section 18.15 Quiet Enjoyment
Section 18.16 Waiver of Jury Trial
Section 18.17 Broker
Section 18.18 Accord and Satisfaction
Section 18.19 Captions and Article Numbers
Section 18.20 Severability
Section 18.21 Applicable Law
Section 18.22 Submission of Lease
Section 18.23 Time
Section 18.24 Entire Agreement
Section 18.25 Landlord's Management Provisions
Section 18.26 Sprinklers
Section 18.27 Date Payments Are Due
Section 18.28 Meaning of "Re-entry"
Section 18.29 Lease Modification
Section 18.30 Litigation, Mediation and Arbitration Costs
Section 18.31 Remedies and Rights May be Exercised by Party in
its Own Name; Authority to Execute Lease
Section 18.32 Payments to Affiliates
Section 18.33 Landlord's Title
Section 18.34 Light and Air Rights
Section 18.35 Rent not Based on Income
Section 18.36 Non-Exclusivity
Section 18.37 Exhibits
Section 18.38 Rooftop Rights
Exhibit A - Description of Project
Exhibit B - Depiction of Premises
Exhibit C - Work Letter Agreement
Exhibit D - Notice of Commencement of Lease
Exhibit E - Project Holidays
Exhibit F - Project Janitorial Specifications
Exhibit G - Offset Statement and Estoppel Certificate
Exhibit H - Rules and Regulations
