Exhibit 10.4
SUBLEASE
BY AND BETWEEN
MDS PHARMA SERVICES CLINICAL RESEARCH INC.
("SUBLANDLORD")
AND
PROTARGA, INC.
("SUBTENANT")
FEBRUARY 26TH, 2001
TABLE OF CONTENTS
SUBLEASE
Section Page
------- ----
1. Subleased Premises.............................................................................1
2. Sublandlord's Representations..................................................................1
3. Terms of Prime Lease...........................................................................2
4. Sublease Term..................................................................................4
5. Rent...........................................................................................4
6. Operating Expenses; Utilities..................................................................5
7. Use............................................................................................6
8. Condition of Subleased Premises; Initial Improvements..........................................6
9. Alterations; Surrender.........................................................................7
10. Insurance; Casualty Damage; Condemnation.......................................................7
11. Assignment and Subletting......................................................................8
12. Notices........................................................................................8
13. Sublandlord's Rights...........................................................................9
14. Sublandlord's Lease............................................................................9
15. Default........................................................................................9
16. Sublandlord's Remedies........................................................................10
17. Consent of the Prime Landlord Subsequent to Approval of Sublease..............................10
18. Modifications.................................................................................10
19. Termination of the Prime Lease................................................................10
20. Brokers.......................................................................................11
21. Miscellaneous.................................................................................11
22. Authority.....................................................................................12
23. Execution in Counterparts.....................................................................12
SUBLEASE
THIS
SUBLEASE is made and entered into as of the 26TH day of February,
2001 by and between MDS PHARMA SERVICES CLINICAL RESEARCH INC. (hereinafter
"Sublandlord") and PROTARGA, INC. (hereinafter "Subtenant").
RECITALS
A Pursuant to that certain Agreement of Lease dated April 30,
2000 (the "Original Lease") as amended by that certain First Amendment to
Agreement of Lease dated February 26TH, 2001 (the "Amendment") (the Original
Lease, as so amended, being herein referred to as the "Prime Lease"), Triad
Realty Acquisition, L.P. (hereinafter "Prime Landlord"), as landlord, leased to
Phoenix International Life Sciences (IBRD) Inc. ("Phoenix") certain premises
consisting of approximately Forty Seven Thousand One Hundred Twenty (47,120)
square feet of space (the "Demised Premises") in the building located at 0000
Xxxxxxxxxxx Xxxxxxxxx (the "Building"), as more particularly described in the
Prime Lease, at the rental and upon the terms and conditions set forth in the
Prime Lease.
B By Certificate of Amendment of Certificate of Incorporation of
Phoenix filed with the State of Delaware Secretary of State on November 9, 2000,
Phoenix changed its name to MDS Pharma Services Clinical Research Inc.
("Sublandlord").
C A copy of the Prime Lease is attached hereto as EXHIBIT A.
D Sublandlord desires to
sublease to Subtenant a portion of the
Demised Premises, and Subtenant desires to sublet a portion of the Demised
Premises from Sublandlord, on the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the rents hereinafter reserved and
to be paid, and of the covenants, promises, and agreements hereinafter set
forth, and for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, Sublandlord and Subtenant agree as
follows:
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SUBLEASED PREMISES. Sublandlord hereby subleases to Subtenant,
and Subtenant hereby subleases from Sublandlord, approximately fifteen thousand
nine hundred and forty five (15,945) rentable square feet of floor area (the
"Subleased Premises") constituting a portion of the Demised Premises under the
Prime Lease, as such space is designated and more particularly described on
EXHIBIT B attached hereto. During the Sublease Term (as defined in Section 3
below), but under and subject to the terms, covenants and conditions of the
Prime Lease, Subtenant shall have all the rights of Sublandlord appurtenant to
the Demised Premises under the Prime Lease, but only to the extent that the same
pertain to the Subleased Premises.
2 SUBLANDLORD'S REPRESENTATIONS. Sublandlord represents to
Subtenant that: (a) EXHIBIT A constitutes a true, correct and complete copy of
the Prime Lease, and
comprises the entire understanding and agreement of Prime Landlord and
Sublandlord with respect to the Demised Premises, (b) the Prime Lease is in full
force and effect in accordance with its terms, (c) neither Sublandlord nor, to
Sublandlord's knowledge, Prime Landlord is in default under the Prime Lease, and
there exists no state of facts and no event has occurred which, with the passage
of time or the giving of notice, or both, would constitute a default by either
Prime Landlord or Sublandlord under the Prime Lease.
3 TERMS OF PRIME LEASE.
(a) SUBTENANT'S OBLIGATIONS UNDER PRIME LEASE. The terms,
provisions, covenants and conditions of the Prime Lease, are hereby incorporated
herein by reference and made a part hereof and are and shall be superior to this
Sublease to the extent they impose duties or obligations on Sublandlord, as
tenant. During the Sublease Term and to the extent applicable to the Subleased
Premises only, as between Subtenant and Sublandlord, Subtenant hereby assumes
and agrees to perform and be bound by all of the provisions of the Prime Lease
which are incorporated herein as if Subtenant were the "Tenant" under the Prime
Lease, Sublandlord were the "Landlord" thereunder and the Subleased Premises
were the "Demised Premises" thereunder (except that Subtenant shall also afford
Prime Landlord any rights granted to Landlord in such provisions including any
approval rights). Sublandlord shall have all of the rights and remedies of Prime
Landlord under the Prime Lease as against Subtenant. However, subject to Section
2(b) below, Subtenant shall have none of the privileges, benefits or rights
granted to Sublandlord, as tenant, under the Prime Lease unless expressly
granted to Subtenant herein (including, without limitation, any renewal options
or rights of first offer).
(b) CONFLICTING TERMS. Any other provision of the Prime
Lease or this Sublease to the contrary notwithstanding, Subtenant shall not be
responsible for (i) the obligation to pay to Prime Landlord the Adjusted Minimum
Rent, the Minimum Rent or any other charges reserved and covenanted to be paid
by "Tenant" as "rent" or "additional rent" under the Prime Lease, (ii) any
obligations of "Tenant" wherever expressed in the Prime Lease to the extent
relating to any space other than the Subleased Premises or arising prior to the
Expansion Premises Commencement Date or arising after the expiration of the
Sublease Term, (iii) any obligations of "Tenant" wherever expressed in the Prime
Lease to the extent that they relate to the removal of improvements, alterations
and additions to the Subleased Premises constructed and installed by Prime
Landlord or Sublandlord prior to the Expansion Premises Commencement Date other
than for use by Subtenant, (iv) any obligations of "Tenant" wherever expressed
in the Prime Lease to the extent that they relate to the repair, replacement or
maintenance of a condition of the Subleased Premises existing prior to the
Expansion Premises Commencement Date, (v) any obligations of "Tenant" wherever
expressed in the Prime Lease relating to the indemnification of Prime Landlord
with respect to any loss, damage, liability, obligation, cost or expense arising
as a result of a negligent act or omission of Sublandlord, its agents,
employees, contractors or invitees, (vi) any obligations of "Tenant" wherever
expressed in the Prime Lease relating to the condition of the Subleased Premises
at the expiration of the Sublease Term to the extent that the required
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repair, maintenance or removal relates to a condition existing prior to the
Expansion Premises Commencement Date (all of which obligations expressed in
clauses (i) through (vi) above shall be and remain the responsibility of
Sublandlord).
(c) SUBTENANT'S RIGHTS TO SERVICES UNDER PRIME LEASE. It
is the intention of the parties that Subtenant be entitled to receive the full
benefit of any services, utilities (including water and heating), repairs,
maintenance, facilities and other ongoing services from Prime Landlord that
Sublandlord, as tenant, receives with respect to the Demised Premises under the
Prime Lease as and to the extent the foregoing are applicable to the Subleased
Premises and all common areas and facilities, subject in all cases to the terms
of the Prime Lease. In connection with the foregoing, Subtenant acknowledges and
agrees that the foregoing described services can only be provided by Prime
Landlord and that Sublandlord has no right or ability to control the same.
Notwithstanding the foregoing, to the extent Prime Landlord has agreed in the
Prime Lease to provide utilities, repairs, facilities and other services to
Sublandlord, as tenant, including the services under Articles 24 through 27 of
the Prime Lease, and provided such services are applicable to the Subleased
Premises, Sublandlord agrees, on behalf of Subtenant, to use best efforts to
obtain the performance of Prime Landlord's duties and obligations in favor of
Subtenant. Additionally, if Prime Landlord shall default in any of its
obligations to Sublandlord with respect to the Subleased Premises, Subtenant
shall be entitled to participate with Sublandlord in the enforcement of
Sublandlord's rights against Prime Landlord. If, after written request from
Subtenant, Sublandlord shall fail or refuse to take appropriate action for the
enforcement of Sublandlord's rights against Prime Landlord with respect to the
Subleased Premises as may be available to Sublandlord pursuant to the terms of
the Sublease or at law within a reasonable period of time considering the nature
of Prime Landlord's default, Subtenant shall have the right to take such action
in its own name, all as Subtenant shall determine, and for that purpose and only
to such extent, all of the rights of Sublandlord under the Prime Lease hereby
are conferred upon and assigned to Subtenant to the extent such rights are
assignable and Subtenant hereby is subrogated to such rights to the extent that
the same shall apply to the Subleased Premises, provided, however, Subtenant
shall not be permitted nor shall Sublandlord be required to take any action
which would constitute a default by Sublandlord under the Prime Lease.
Sublandlord hereby grants Subtenant the right to deal directly with Prime
Landlord with respect to any rights of Sublandlord as "Tenant" under the Prime
Lease which are exercisable with respect to the Subleased Premises, the conduct
or manner of conduct of Subtenant's or Prime Landlord's activities therein or
services to be rendered therein or thereto by Prime Landlord; it being the
intent of the parties hereto that Subtenant may exercise such rights as are in
Subtenant's judgment reasonably necessary or desirable to permit Subtenant to
use and occupy the Subleased Premises for the normal conduct of its business,
all as contemplated in this Sublease, and not otherwise. Provided Sublandlord
complies with its obligations to Subtenant hereunder, Subtenant hereby releases
and holds Sublandlord harmless from and currently waives any claims arising in
the future relating to any damages, interference, costs and expenses incurred or
suffered by Subtenant as a result of (i) the failure of Prime Landlord to
properly maintain, repair or operate the Demised Premises or the Subleased
Premises and base building systems, and (ii) the failure of Prime Landlord to
supply any utility and
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other services to be provided to Sublandlord, as "Tenant" under the Prime Lease.
The payment of Base Rent and Additional Rent to Sublandlord is an absolute and
independent covenant and shall not be affected in any way by the failure of
Prime Landlord to so maintain, repair or operate or to supply any such utility
or services except if and to the extent Sublandlord's rental obligations to
Prime Landlord under the Prime Lease are abated, reduced, suspended or offset
with respect to the Subleased Premises as a result of the foregoing.
(d) SUBLANDLORD'S CONSENT. Except as otherwise expressly
provided in this Sublease to the contrary, in any circumstance under which
Subtenant is obligated to obtain Sublandlord's prior consent or approval, such
consent or approval shall not be unreasonably withheld, delayed or conditioned
by Sublandlord. However, in those circumstances in which Prime Landlord's
consent is required and in which Sublandlord has agreed not to unreasonably
withhold its consent, Subtenant acknowledges that Sublandlord and Prime Landlord
may have different interests in such circumstances; therefore, Subtenant agrees
that Sublandlord shall not be bound by any approval or consent provided by Prime
Landlord, and that Sublandlord shall not be liable or responsible for any
denial, delay or condition of approval or consent by Prime Landlord.
(e) CONTROLLING PROVISIONS. Except as otherwise
expressly provided in this Sublease, in the event of a conflict between the
terms of the Prime Lease and the provisions of this Sublease, the terms of the
Prime Lease shall control, except that the monetary provisions of this Sublease
shall control with respect to Subtenant's obligation to pay rent and any other
monetary obligations. Any capitalized terms used in this Sublease and not
otherwise defined herein, shall have the meanings prescribed for such terms in
the Prime Lease.
4 SUBLEASE TERM. The term of this Sublease (the "Sublease Term")
shall commence on the Expansion Premises Commencement Date and shall terminate
on the last day of the month which is sixty (60) consecutive calendar months
thereafter, unless terminated sooner pursuant to any other provision of this
Sublease. As of the Expansion Premises Commencement Date, Sublandlord shall
deliver possession of the Subleased Premises to Subtenant and Subtenant shall
perform all of its obligations under this Sublease. Notwithstanding the
foregoing, Sublandlord may terminate this Sublease and the Sublease Term at any
time after the third (3rd) anniversary of the Expansion Premises Commencement
Date, upon not less than twelve (12) months prior written notice to Subtenant.
5 RENT.
(a) BASE RENT. Commencing on the Expansion Premises
Commencement Date, Subtenant shall pay to Sublandlord Base Rent under this
Sublease on the first day of each calendar month, in advance, without any
notice, demand, deduction, offset, or counterclaim of any kind or for any reason
whatsoever in the following amounts and manner:
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Months Premises Rate Per Yearly Rate Monthly Installment
Rentable Foot
Expansion Commencement 15,945 $ 25.35 $ 404,205.75 $ 33,683.81
Date - 8/31/01
9/1/01-2/28/03 15,945 $ 25.35 $ 404,205.75 $ 33,683.81
3/1/03-8/31/03 15,945 $ 27.35 $ 436,095.75 $ 36,341.31
9/1/03-8/31/05 15,945 $ 27.00 $ 430,515.00 $ 35,876.25
9/1/05-Expiration 15,945 $ 29.00 $ 462,405.00 $ 38,533.75
In the event that Base Rent is due for other than an entire calendar month, the
Base Rent due and payable for the partial month shall be determined on a pro
rata basis based on the number of days in such month.
(b) ADDITIONAL RENT. Commencing on the Expansion
Premises Commencement Date, Subtenant shall pay to Sublandlord Additional Rent,
all of which shall be payable on or before the date when such payment is first
due without any deduction, offset or counterclaim of any kind or for any reason
whatsoever, except as set forth herein, and without prior notice or demand
therefor. Additional Rent shall consist of all amounts, other than Base Rent,
which become due from Subtenant to Sublandlord under this Sublease.
(c) PAYMENT. Subtenant shall pay all amounts due as Base
Rent and Additional Rent to Sublandlord at the address set forth in Section 11
below, or at such other address and/or to such other person or entity as
Sublandlord designates by notice to Subtenant.
(d) DEFAULT INTEREST; LATE CHARGES. In the event that
Subtenant fails to pay any amount of Base Rent or Additional Rent when the same
shall be due, after receipt of any applicable written notice and the expiration
of any applicable grace period as set forth in Section 15 herein, Subtenant
shall pay to Sublandlord, as Additional Rent, interest on the amount due at a
rate equal to one (1) percent per annum above the rate of Interest as defined in
the Prime Lease from the date due until the date actually paid. In addition to
the foregoing, Subtenant shall pay to Sublandlord an amount equal to four
percent (4%) of the amount overdue to cover administrative expenses.
(e) SECURITY DEPOSIT. As additional security for the full
and prompt performance by Subtenant of the terms and covenants of this Sublease,
Subtenant shall deposit with Sublandlord the sum of Thirty Three Thousand Six
Hundred Eighty Three and 81/100 Dollars ($33,683.81) (the "Security Deposit").
The Security Deposit shall not constitute rent for any month (unless so applied
by Sublandlord on account of Subtenant's default hereunder occurring after
receipt by Subtenant of written notice and the expiration of any applicable cure
periods). Subtenant shall within fifteen (15) days after written demand restore
any portion of the Security Deposit which may have been applied by Sublandlord
to cure any default by Subtenant as provided herein. To the extent that
Sublandlord has not applied the Security Deposit or any portion thereof on
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account of a default occurring after Subtenant's receipt of written notice and
the expiration of any applicable cure periods, the Security Deposit, or such
remaining portion of the Security Deposit, shall be returned to Subtenant,
without interest, within two (2) business days following the termination of this
Sublease.
6 OPERATING EXPENSES; UTILITIES.
(a) OPERATING EXPENSES. Beginning on the Expansion
Premises Commencement Date and continuing throughout the Sublease Term,
Subtenant shall pay to Sublandlord, as Additional Rent, Subtenant's
Proportionate Share (as defined below) of Tenant's Share of Taxes and Operating
Costs on account of the Subleased Premises all as calculated and determined in
accordance with the Prime Lease. In all instances where Sublandlord is required
to pay a share of any expense or cost pursuant to the Prime Lease based upon
Tenant's Occupancy Percentage, including Tenant's Share of Taxes and Tenant's
Share of Operating Costs, and to the extent such expense or costs relate to the
Subleased Premises or Subtenant's use of the Subleased Premises, Subtenant shall
pay Subtenant's Proportionate Share of such expenses or costs. Subtenant's
Proportionate Share for purposes of this Sublease shall be 33.84%.
(b) UTILITIES. Notwithstanding the foregoing, commencing
on the Expansion Space Commencement Date Subtenant shall pay Subtenant's
Proportionate Share of all charges for electricity and other utilities
allocated, rendered or used on or about the Demised Premises during the Sublease
Term as well as any other utilities the costs of which are billed to Sublandlord
as additional rent pursuant to Article 25 of the Prime Lease.
7 USE. Subtenant shall use the Subleased Premises only for
general offices and any other uses permitted under the Prime Lease. In addition,
Subtenant shall abide by all provisions of the Prime Lease and any rules and
regulations promulgated by Prime Landlord governing the use of the Demised
Premises. Sublandlord shall assign to Subtenant sixty (60) of Subtenant's
Allotted Parking spaces and three (3) of Subtenant's Designated Spaces under the
Prime Lease, in accordance with the provisions of Article 10 thereof.
8 CONDITION OF SUBLEASED PREMISES; INITIAL IMPROVEMENTS. The
Tenant Drawings for Landlord's Expansion Premises Work to be performed in the
Subleased Premises by Prime Landlord pursuant to the terms of the Prime Lease
which work is set forth on Exhibit B to the Amendment have been prepared by
Subtenant and approved by the Sublandlord. All costs incurred in connection with
such Tenant Drawings shall be the sole obligation of the Subtenant and shall be
payable within twenty (20) days following invoicing. In the event the cost of
the Landlord's Expansion Premises Work, if approved in advance by Subtenant,
exceeds the Construction Credit for the Landlord's Expansion Premises Work, such
costs shall be the sole responsibility of the Subtenant and shall be paid to
Sublandlord in such timely manner as to enable Sublandlord to pay such costs to
the Prime Landlord in accordance with the terms of the Prime Lease. If in
connection with Prime Landlord's approval of the Tenant Drawings for the
Landlord's Expansion
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Premises Work, Prime Landlord designates all or any portion thereof as being
required to be removed at the expiration of the Term of the Prime Lease, then in
such event, such obligation shall be the sole responsibility of the Subtenant,
which obligation shall survive the termination of the Prime Lease and this
Sublease. Except for the Landlord's Expansion Premises Work, Subtenant accepts
the Subleased Premises in its "AS IS" condition, it being agreed by Subtenant
that neither Sublandlord nor any party acting on Sublandlord's behalf, has made
any representation or warranty with respect to the condition of the Subleased
Premises, nor with respect to its fitness or suitability for any particular
purpose.
9 ALTERATIONS; SURRENDER.
(a) ALTERATIONS. Subtenant shall not make any alterations
or additions to the Subleased Premises without Sublandlord's prior written
consent in each instance, which consent shall not be unreasonably withheld,
conditioned or delayed but which may be conditioned upon compliance with the
terms of the Prime Lease including Prime Landlord's prior consent to the extent
required under the Prime Lease. Prior to (i) the commencement of any work by
Subtenant in the Subleased Premises or (ii) making any such alterations or
additions to the Subleased Premises, Subtenant shall submit to Sublandlord for
its approval, plans and specifications respecting such work in reasonable
specificity. Sublandlord agrees that it will notify Subtenant whether it
approves or objects to such proposed plans (stating the reasons for its
objections) within 10 days after Sublandlord's receipt of the same or within 10
days after Sublandlord has received all clarifying language it has reasonably
requested. The requirements of this paragraph shall not be construed as a waiver
of any rights granted to the Prime Landlord pursuant to Article 13 of the Prime
Lease nor relieve Subtenant from its obligation to comply with all of the other
requirements set forth in Article 13 of the Prime Lease. However,
notwithstanding the foregoing, Subtenant acknowledges that in certain
circumstances Sublandlord's interest in the Subleased Premises and the Prime
Landlord's interest in the Subleased Premises may differ; therefore, Subtenant
acknowledges and agrees that Sublandlord shall not be bound by any approval or
consent provided by Prime Landlord, and that Sublandlord shall not be liable or
responsible for any denial, delay or condition of approval or consent by Prime
Landlord.
(b) SURRENDER. Upon the expiration or sooner termination
of this Sublease for any reason whatsoever, Subtenant shall promptly and
peaceably surrender the Subleased Premises to Sublandlord broom-clean, in good
order and repair, except for reasonable wear and tear and in all cases in the
manner and condition required by the Prime Lease. Subtenant shall promptly
repair all damage caused by the removal of Subtenant's personal property,
fixtures and equipment from the Subleased Premises. Notwithstanding the
foregoing, Subtenant shall not be responsible for the removal of any personal
property, fixtures or equipment which were not placed in or on the Subleased
Premises by or on behalf of the Subtenant.
10 INSURANCE; CASUALTY DAMAGE; CONDEMNATION.
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(a) INSURANCE. Subtenant shall maintain comprehensive
general liability insurance covering the Subleased Premises and Subtenant's
occupation and use thereof, and such other insurances of the types required to
be maintained pursuant to Article 30 of the Prime Lease, and in addition to the
requirements contained therein (i) Subtenant shall name Prime Landlord and
Sublandlord as an additional insured parties thereunder (ii) there shall be
delivered to Prime Landlord and Sublandlord customary insurance certification
evidencing such paid-up insurance, (iii) at least thirty (30) days prior to the
expiration of any policy of insurance, Subtenant shall deliver to Prime Landlord
and Sublandlord evidence of a renewal or new policy to take the place of the
policy expiring and (iv) such insurance shall contain a clause that the insurer
will not change, cancel, or allow such insurance coverage to lapse without first
giving Prime Landlord and Sublandlord thirty (30) days prior written notice.
Subtenant shall deliver to Sublandlord on or before the Expansion Premises
Commencement Date original or duplicate policies or certificates of insurers
evidencing all the insurance required to be maintained by Subtenant.
(b) NO ABATEMENT OF RENT. Provided that any casualty
damage to the Subleased Premises is not caused by Sublandlord or its agents,
employees or contractors, in the event of any casualty damage to or a
condemnation of the Subleased Premises, there shall be no abatement of the Base
Rent or the Additional Rent or any other charges payable by Subtenant under this
Sublease, except to the extent that any rent and other charges payable by
Sublandlord, as tenant under the Prime Lease, are subject to abatement under the
Prime Lease; PROVIDED THAT Sublandlord agrees that Subtenant shall be entitled
with respect to this Sublease and the Subleased Premises to exercise any rent
abatement and any termination rights granted to Sublandlord under Articles 31
and 33 of the Prime Lease.
(c) NOTICES TO SUBTENANT. Sublandlord agrees that it
will provide Subtenant with any notice it provides to Prime Landlord regarding
its election to terminate the Prime Lease pursuant to Articles 31 or 33 of the
Prime Lease. Subtenant acknowledges and agrees that Sublandlord has no
obligation to consider Subtenant's interest in making its determination to
terminate the Prime Lease pursuant to Articles 31 or 33 thereof. Notwithstanding
anything contained herein to the contrary, if any damage or destruction to the
Subleased Premises is caused by or as a result of any act of negligence of
Subtenant, its employees, Agents or Visitors, then to the extent Sublandlord is
not relieved of its obligation to pay rent under the Prime Lease, Subtenant
shall not be relieved of Subtenant's obligation to pay Base Rent and Additional
Rent under this Sublease and Sublandlord shall retain all rights and remedies
available at law to collect damages including loss of rentals.
11 ASSIGNMENT AND SUBLETTING. Subtenant shall not pledge,
mortgage, hypothecate, assign or in any way encumber this Sublease without the
prior written consent of Sublandlord and Prime Landlord in each instance, which
consent shall be subject to each party's sole discretion. Subtenant shall not
assign this Sublease or sublet all or any portion of the Subleased Premises
without Prime Landlord's prior written consent which may be withheld in Prime
Landlord's sole and absolute discretion and
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without Sublandlord's prior consent which may be withheld in Sublandlord's sole
discretion. Anything set forth in this Section 11 to the contrary
notwithstanding: (i) Sublandlord hereby expressly consents to any assignment or
other transfer of this Sublease or sublease of any or all of the Subleased
Premises by Subtenant (i) by reason of or in connection with a corporate
reorganization of Subtenant, (ii) as an assignment for security in connection
with any debt financing obtained by Subtenant, (iii) to any person or entity
which has the power to control Subtenant's management and operation, or any
entity whose management and operation is controlled by Subtenant; (iv) to any
entity, a majority of whose voting stock or managing interests is owned by
Subtenant; (v) to any parent, subsidiary or affiliate of Subtenant; (vi) to any
corporation into which or with which Subtenant, its successors or assigns, is
merged or consolidated; and (vii) to any person or entity acquiring all or
substantially all of the stock, assets or managing interests of Subtenant; and
(viii) the transfer of all or any portion of Subtenant's stock, or the stock of
its successors or assigns, on a national exchange shall not constitute an
assignment of this Sublease if or when Subtenant, or its successor or assign (as
applicable), is a publicly traded company.
12 NOTICES. All notices required or permitted to be given
hereunder must be in writing and given in the manner provided by Article 47 of
the Prime Lease as follows:
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To Sublandlord:
The Triad
0000 Xxxxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxx xx Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx, Ph.D.
President, Global Clinical Research
With copy to:
Xxxxxxx X. Xxxxx, Esquire
Xxxxxx Xxxxxxxx LLP
3000 Two Xxxxx Square
Eighteenth and Xxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
If to Subtenant:
Protarga, Inc.
Attn: Chief Financial Officer
With copy to:
Xxxx X. Xxxxx, Esquire
Xxxxxx, Xxxxx & Bockius, LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
13 SUBLANDLORD'S RIGHTS. Subtenant recognizes, acknowledges and
agrees, that a copy of the Prime Lease is attached hereto as Exhibit A and that
Subtenant is bound by the terms thereof. Subtenant's rights under this Sublease
shall at all times be subject and subordinate to all the terms and conditions of
the Prime Lease. Subtenant further recognizes, acknowledges and agrees that the
promises, terms, conditions and agreements set forth in this Sublease are in no
way in derogation or reduce Sublandlord's rights pursuant to the Prime Lease.
14 SUBLANDLORD'S LEASE. Subtenant will comply with all of the
obligations of this Sublease and, except as expressly provided in this Sublease,
will be bound by and will comply with all of the non-monetary and
indemnification obligations of the Prime Lease incorporated herein by reference,
as if it were the tenant under the Prime Lease to the extent such provisions of
the Prime Lease relate to the Subleased Premises and are not inconsistent with
or in derogation of the terms hereof.
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15 DEFAULT. As used in the provisions of this Sublease, each of
the following events shall constitute, and is hereinafter referred to as, an
"Event of Default":
(a) if the Subtenant fails to (a) pay any Base Rent or
Additional Rent or any other sum which it is obligated to pay under this
Sublease, when due and payable hereunder, and such failure is not cured within
three (3) business days after receipt of written notice thereof, or (b) perform
any of its other obligations under the provisions of this Sublease, and such
failure is not cured within twenty (20) days after receipt of written notice
thereof or, if such cure cannot be completed within twenty (20) days, to
commence such cure and diligently pursue the same to completion within no more
than ten (10) days; or
(b) if the Subtenant (i) applies for or consents to the
appointment of a receiver, trustee or liquidator of the Subtenant or of all or a
substantial part of its assets, (ii) files a voluntary petition in bankruptcy or
admits in writing its inability to pay its debts as they come due, (iii) makes
an assignment for the benefit of its creditors, (iv) files a petition or an
answer seeking a reorganization or an arrangement with creditors, or seeks to
take advantage of any insolvency law, or (v) files an answer admitting the
material allegations of a petition filed against the Subtenant in any
bankruptcy, reorganization or insolvency proceeding; or
(c) if an order, judgment or decree is entered by any
court of competent jurisdiction adjudicating the Subtenant a bankrupt or an
insolvent approving a petition seeking such a reorganization, or appointing a
receiver, trustee or liquidator of the Subtenant or of all or a substantial part
of its assets; or
(d) if the Subtenant fails to pay any sum or perform any
obligation owed to the Sublandlord under the provisions of any other agreement
between the Subtenant and the Sublandlord, and such failure is not cured within
the period of time permitted under such agreement to cure the same after written
notice thereof.
16. SUBLANDLORD'S REMEDIES. Upon the occurrence of an Event of
Default, Sublandlord shall be entitled to exercise the same rights and remedies
(i) available under Article 35 of the Prime Lease as if it were the Prime
Landlord and Subtenant were the Tenant under the Prime Lease and (ii) as are
otherwise available pursuant to applicable law. All rights and remedies of
Sublandlord under this Sublease shall be cumulative and shall not be exclusive
of any other rights and remedies provided to Sublandlord now or hereafter under
any applicable law. In addition to the foregoing:
(a) CONFESSION OF JUDGMENT FOR POSSESSION. UPON THE OCCURRENCE OF AN EVENT
OF DEFAULT OR UPON THE EXPIRATION OF THE TERM OF THIS SUBLEASE, FOR THE PURPOSE
OF OBTAINING POSSESSION OF THE SUBLEASED PREMISES, SUBTENANT HEREBY AUTHORIZES
AND EMPOWERS THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF RECORD IN THE
COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE, AS ATTORNEY FOR SUBTENANT AND ALL
PERSONS CLAIMING UNDER OR THROUGH SUBTENANT, TO APPEAR FOR AND
11
CONFESS JUDGMENT AGAINST SUBTENANT FOR POSSESSION OF THE SUBLEASED PREMISES, AND
AGAINST ALL PERSONS CLAIMING UNDER OR THROUGH SUBTENANT, IN FAVOR OF
SUBLANDLORD, FOR RECOVERY BY SUBLANDLORD OF POSSESSION THEREOF, FOR WHICH THIS
AGREEMENT OR A COPY HEREOF VERIFIED BY AFFIDAVIT, SHALL BE A SUFFICIENT WARRANT;
AND THEREUPON A WRIT OF POSSESSION MAY IMMEDIATELY ISSUE FOR POSSESSION OF THE
SUBLEASED PREMISES, WITHOUT ANY PRIOR WRIT OR PROCEEDING WHATSOEVER AND WITHOUT
ANY STAY OF EXECUTION. IF FOR ANY REASON AFTER SUCH ACTION HAS BEEN COMMENCED
THE SAME SHALL BE TERMINATED AND THE POSSESSION OF THE SUBLEASED PREMISES
REMAINS IN OR IS RESTORED TO SUBTENANT, SUBLANDLORD SHALL HAVE THE RIGHT UPON
THE OCCURRENCE OF ANY SUBSEQUENT EVENT OF DEFAULT TO CONFESS JUDGMENT IN ONE OR
MORE FURTHER ACTIONS IN THE MANNER AND FORM SET FORTH ABOVE TO RECOVER
POSSESSION OF SAID SUBLEASED PREMISES FOR SUCH SUBSEQUENT DEFAULT. SUBTENANT
WAIVES ALL ERRORS IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT. NO SUCH
TERMINATION OF THIS LEASE, NOR TAKING, NOR RECOVERING POSSESSION OF THE
SUBLEASED PREMISES SHALL DEPRIVE SUBLANDLORD OF ANY REMEDIES OR ACTION AGAINST
SUBTENANT FOR BASE RENT, ADDITIONAL RENT OR FOR OTHER SUMS DUE HEREUNDER OR FOR
DAMAGES DUE OR TO BECOME DUE FOR THE BREACH OF ANY CONDITION OR COVENANT HEREIN
CONTAINED, NOR SHALL THE BRINGING OF ANY SUCH ACTION FOR RENT AND/OR OTHER SUMS
DUE HEREUNDER, OR BREACH OF COVENANT OR CONDITION NOR THE RESORT TO ANY OTHER
REMEDY HEREIN PROVIDED FOR THE RECOVERY OF RENT AND/OR OTHER SUMS DUE HEREUNDER
OR DAMAGES FOR SUCH BREACH BE CONSTRUED AS A WAIVER OF THE RIGHT TO INSIST UPON
THE FORFEITURE AND TO OBTAIN POSSESSION IN THE MANNER HEREIN PROVIDED.
(b) CONFESSION OF JUDGMENT FOR SUMS DUE HEREUNDER. AFTER
AN EVENT OF DEFAULT, SUBTENANT, HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS THE
PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR SUBTENANT IN
ANY SUCH COURT AT ANY TIME THEREAFTER TO WAIVE THE ISSUANCE AND SERVICE OF
PROCESS AND TO CONFESS AND ENTER JUDGMENT AGAINST SUBTENANT AND IN FAVOR OF
SUBLANDLORD FOR SUCH AGGREGATE AMOUNT OF BASE RENT, ADDITIONAL RENT AND OTHER
SUMS DUE TO SUBLANDLORD AS IS UNPAID UNDER THIS SUBLEASE (INCLUDING THE
ACCELERATED RENT COMPONENT) TOGETHER WITH COSTS AND ATTORNEYS FEES EQUAL TO THE
LESSER OF FIVE THOUSAND DOLLARS ($5,000) OR FIVE PERCENT (5%) OF SUCH UNPAID
AMOUNTS. SUBTENANT HEREBY RATIFIES AND CONFIRMS ALL THAT THE ATTORNEY MAY DO BY
VIRTUE HEREOF AND WAIVES AND RELEASES ALL ERRORS WHICH MAY INTERVENE IN SUCH
PROCEEDINGS. IF A COPY OF THIS SUBLEASE SHALL BE PRODUCED IN ANY PROCEEDINGS
BROUGHT UPON
12
THE WARRANT OF ATTORNEY CONTAINED IN THIS SECTION, SUCH COPY SHALL BE CONCLUSIVE
EVIDENCE OF SUCH PROTHONOTARY'S AND/OR ATTORNEY'S AUTHORITY TO TAKE THE ACTION
SPECIFIED HEREIN AND IT SHALL NOT BE NECESSARY TO PRODUCE THE ORIGINAL
INSTRUMENT. THE AUTHORITY GRANTED HEREIN TO CONFESS JUDGMENT AGAINST SUBTENANT
SHALL NOT BE EXHAUSTED BY ANY EXERCISE THEREOF, BUT MAY BE EXERCISED FROM TIME
TO TIME AS OFTEN AS THERE IS OCCASION THEREFOR UNTIL PAYMENT IN FULL OF ALL
AMOUNTS DUE UNDER THIS SUBLEASE.
17. CONSENT OF THE PRIME LANDLORD SUBSEQUENT TO APPROVAL OF
SUBLEASE. Except as expressly provided otherwise in this Sublease, to the extent
that Subtenant desires to engage in activities (by way of example, but not
limitation, making alterations) which require the consent or approval of the
Prime Landlord as provided in the Prime Lease, Subtenant shall submit all such
requests for approval or consent to Sublandlord and Sublandlord will promptly
upon receipt submit such requests or materials to the Prime Landlord for its
consideration. Sublandlord and Subtenant recognize and agree that with respect
to such circumstances when the Prime Landlord's consent or approval is required,
Sublandlord shall have no obligation other than to act as a conduit timely
submitting information or requests, as provided to it in writing, by Subtenant
to the Prime Landlord and to use reasonable efforts to diligently and timely
following up with Prime Landlord to assure timely response.
18. MODIFICATIONS. Sublandlord shall not enter into any agreement
with the Prime Landlord which (i) adversely alters or changes any of the terms
of this Sublease, (ii) increases any of Subtenant's duties and/or obligations
under this Sublease, or (iii) diminishes any of Subtenant's rights and
privileges under the Sublease, without in each instance obtaining Subtenant's
prior written consent, which consent Subtenant may withhold in its sole and
absolute discretion.
19. TERMINATION OF THE PRIME LEASE. Except as expressly set forth
above, Sublandlord represents that it shall neither do nor permit anything to be
done which would cause the Prime Lease to be terminated or forfeited by reason
of any right of termination or forfeiture vested in Prime Landlord under the
Prime Lease. During the Sublease Term, Sublandlord further represents that it
will not agree to a termination of the Prime Lease, except in connection with
Prime Landlord's exercise of its remedies following a default by Sublandlord
under the Prime Lease, unless, in connection therewith, Prime Landlord accepts
this Sublease as a direct lease between Prime Landlord and Subtenant. In the
event of a termination of the Prime Lease, Subtenant shall have no right to use,
occupy, or possess the Subleased Premises or any portion thereof and shall
immediately return possession thereof to Sublandlord or such other party as is
appropriate or at Prime Landlord's sole discretion, Subtenant shall attorn to
Prime Landlord for the balance of the Sublease Term.
20. BROKERS. Sublandlord and Subtenant each represent and warrant
to the other that neither of them has employed any broker in carrying on any
negotiations relating to this Sublease, except for Xxxxx Xxxx & Company. Prime
Landlord shall be
13
obligated to pay any and all real estate commissions due to Xxxxx Xxxx & Company
pursuant to a separate agreement between Prime Landlord and Xxxxx Xxxx &
Company. Sublandlord and Subtenant shall each indemnify and hold harmless the
other from any claims for brokerage or other commission arising from or out of
the representations and warranties set forth in this Section.
21. SUBLANDLORD'S DEFAULT. In the event of Sublandlord's default
pursuant to the terms of the Prime Lease, Prime Landlord shall have the right to
collect the rent to be paid by Subtenant to Sublandlord pursuant to the terms
hereof directly from Subtenant as provided in Section 16.17 of the Prime Lease.
22. MISCELLANEOUS.
(a) BENEFIT AND BURDEN. Except as otherwise expressly set
forth herein, the provisions of this Sublease shall be binding upon, and shall
inure to the benefit of, the parties hereto and each of their respective heirs,
personal representatives, successors and assigns.
(b) GOVERNING LAW. This Sublease shall be construed and
enforced in accordance with the laws of the jurisdiction in which the Subleased
Premises is located, without giving effect to the choice of law rules thereof.
(c) NO PARTNERSHIP. Nothing contained in this Sublease
shall be deemed or construed to create a partnership or joint venture of or
between Sublandlord and Subtenant, or to create any other relationship between
the parties other than that of Sublandlord and Subtenant.
(d) NO REPRESENTATION BY SUBLANDLORD. Neither Sublandlord
nor any agent of Sublandlord has made any representations or promises with
respect to the Subleased Premises except as herein expressly set forth, and no
rights, privileges, easements or licenses are granted to Subtenant except as
herein expressly set forth.
(e) PRONOUNS. Feminine or neutered pronouns shall be
substituted for those of the masculine form, and the plural shall be substituted
for the singular number in any place or places in this Sublease in which the
context may require such substitution of substitutions. For convenience,
Sublandlord and Subtenant have each been referred to in neuter form in this
Sublease.
(f) CAPTIONS AND DEFINED TERMS. The captions used herein
are for convenience of reference only and are not part of this Sublease, and
shall in no way be deemed to define, limit, describe or modify the meaning of
any provision of this Sublease. All terms not defined herein shall have the
meaning ascribed to such terms in the Prime Lease.
(g) INVALIDITY OF PARTICULAR PROVISIONS. If any term or
provisions of this Sublease or application thereof to any person or
circumstances shall, to any extent, be
14
invalid or unenforceable, the remaining terms and provisions of this Sublease,
or the application of such term or provision to persons or circumstances other
than those as to which it is held invalid or unenforceable, shall not be
affected thereby, and each term and provision of this Sublease shall be valid
and enforced to the fullest extent permitted by law.
(h) ENTIRE AGREEMENT. This Sublease, together with the
terms of the Prime Lease incorporated herein and any Exhibits hereto, contain
and embody the entire agreement of the parties hereto, and no representations,
inducements, or agreements, oral or otherwise, between the parties not contained
in this Sublease or in the Exhibits hereto shall be of any force or effect. This
Sublease may not be modified, changed or terminated in whole or in part in any
manner other than by agreement in writing duly signed by the party to be charged
therewith.
(i) WAIVER OF JURY TRIAL. SUBLANDLORD AND SUBTENANT EACH
HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN ANY CLAIM, ACTION. PROCEEDING OR
COUNTERCLAIM BY EITHER PARTY AGAINST THE OTHER ON ANY MATTERS ARISING OUT OF OR
IN ANY WAY CONNECTED WITH THIS SUBLEASE, THE RELATIONSHIP OF SUBLANDLORD AND
SUBTENANT AND/OR SUBTENANT'S USE OR OCCUPANCY OF THE SUBLEASED PREMISES.
(j) TIME OF THE ESSENCE. Time is of the essence with
respect to each and every provision of this Agreement.
23. AUTHORITY. Sublandlord and Subtenant each respectively
represent and warrant to the other that the signatories hereto are fully
authorized to execute this Sublease on their respective behalves and to bind
them to the terms, conditions, and provisions set forth herein. Sublandlord
further represents that it has not made any assignment or transfer
(conditionally or otherwise) of any of Sublandlord's interest in the Prime Lease
that would adversely affect any of Subtenant's rights hereunder.
24. EXECUTION IN COUNTERPARTS. This Sublease may be executed in
any number of counterparts, and by facsimile signature, each of which shall be
deemed to be an original as against any party whose signature appears thereon,
and all of such counterparts shall together constitute one and the same
instrument. This Sublease shall become binding when one or more counterparts
hereof, individually or taken together, shall bear the signatures of all of the
parties reflected hereon as the signatories.
15
IN WITNESS WHEREOF Sublandlord and Subtenant have executed this
Sublease as of the day and year first above written.
SUBLANDLORD:
MDS PHARMA SERVICES CLINICAL RESEARCH INC.
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------
Xxxxx Xxxxxxxx, Ph.D.
President, Global Clinical Research
SUBTENANT:
PROTARGA, INC.
By: /s/ Xxxxxx Xxxxxx Iv
-------------------------------
Name: Xxxxxx Xxxxxx IV
Title: Chief Financial Officer
16
EXHIBIT A
PRIME LEASE
AGREEMENT OF LEASE
BETWEEN
TRIAD REALTY ACQUISITIONS, LP,
AS LANDLORD
AND
PHOENIX INTERNATIONAL LIFE SCIENCES (IBRD) INC.,
AS TENANT
THE TRIAD
Wings A & B
Fourth Floor
2200 Renaissance Boulevard
King of Prussia, Pennsylvania
2
1. SUMMARY OF BASIC LEASE PROVISIONS, DEFINITIONS, AND TABLE OF CONTENTS.
1.1 BASIC DEFINITIONS. The following are the basic definitions
and provisions of this Lease and are subject to all the terms and provisions of
this Lease or any amendments or exhibits hereto:
(a) DATE OF LEASE: April 30, 2000
(b) LANDLORD: TRIAD REALTY ACQUISITION, LP
LANDLORD'S c/o PW/MS Management Co., Inc.
ADDRESS: Xxxx & Wentworth, LLC
Park Avenue at Xxxxxx County
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxx, Xxx Xxxxxx 00000-0000
(c) TENANT: PHOENIX INTERNATIONAL, LIFE SCIENCES
(IBRD) INC., a Delaware Corporation
TENANT'S
ADDRESS: 0000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
(d) GUARANTOR: PHOENIX INTERNATIONAL LIFE SCIENCES,
INC., a Canadian corporation
GUARANTOR'S
ADDRESS: 0000 Xxxxx Xxxxxx
Xx. Xxxxxxx (Xxxxxxxx), XX X0X0X0
(e) Building: THE TRIAD
0000 Xxxxxxxxxxx Xxxxxxxxx
Xxxx xx Xxxxxxx, Xxxxxxxxxxxx
(f) DEMISED PREMISES: A portion of the fourth (4th) floor in the
Building (Wings A & B), as shown on Exhibit A, attached and made a part hereof.
(g) RENTABLE SIZE OF BUILDING: Deemed as one hundred
seventy-two thousand (172,000) square feet.
(h) RENTABLE SIZE OF DEMISED PREMISES: Deemed as
thirty-one thousand one hundred seventy-five (31,175) square feet.
(i) TENANT'S OCCUPANCY PERCENTAGE: Deemed as eighteen
and 13/100 percent (18.13%).
(j) BASE TAXES: The amount determined by multiplying (a)
the real estate tax rate in effect on the Date of Lease and (b) the assessed
valuation of the Real Estate for the calendar year ending December 31, 2000, as
such assessed valuation is or may be ultimately determined by final
administrative or judicial proceeding, or by abatement by an appropriate taxing
authority.
(k) BASE OPERATING YEAR AND BASE TAX YEAR: Year ending
December 31, 2000.
(l) TERM OF LEASE: Seven (7) years.
(m) ESTIMATED COMMENCEMENT DATE: July 1, 2000.
3
(n) MINIMUM RENT:
-------------------------- ----------------------- ------------------------ --------------------
Lease Months Annual Monthly Per Square
Foot
========================== ======================= ======================== ====================
1 to 12 $662,468.75 $55,205.73 $21.25
-------------------------- ----------------------- ------------------------ --------------------
13 to 36 $755,993.75 $62,999.48 $24.25
-------------------------- ----------------------- ------------------------ --------------------
37 to 60 $787,168.75 $65,597.40 $25.25
-------------------------- ----------------------- ------------------------ --------------------
61 to 84 $872,900.00 $72,741.67 $28.00
-------------------------- ----------------------- ------------------------ --------------------
(o) PREPAYMENT OF RENT: Fifty-Five Thousand Two Hundred Five
and 73/100 Dollars ($55,205.73).
(p) SECURITY: Sixty-Two Thousand Nine Hundred Ninety-Nine and
48/100 Dollars ($62,999.48) in the form of cash.
(q) PERMITTED USE: General office use.
(r) ALLOTTED PARKING: One hundred seventeen (117) unreserved
spaces plus five (5) spaces which shall be Designated Spaces and shall be
located in the garage.
(s) BROKER(S): Outside Broker: Xxxxx Xxxx & Company
Landlord's Agent: Xxxx & Wentworth Realty
Advisors LLC
(t) RENTAL CREDIT: The Minimum Rent will be reduced bytwenty
cents ($.20) per rentable square foot for each Thirty-One Thousand One Hundred
Seventy-Five Dollars ($31,175.00) of unused Construction Credit. The maximum
Rental Credit available will be One Dollar ($1.00) per square foot.
(u) RENEWAL OPTIONS: One (1) five (5) year option.
(v) TENANT DRAWING DATE: May 2, 2000.
(w) CONSTRUCTION CREDIT: Four Hundred Ninety-Four Thousand
Sixty-Six Dollars ($494,066.00).
1.2 ADDITIONAL DEFINITIONS. For the purposes of this Lease, the
following terms shall have the meanings set forth below:
(a) ACCELERATED RENT shall have the meaning given to it in
Section 3 5. 1 (c).
(b) ADDITIONAL SPACE shall have the meaning given to it in
Section 52. 1 (b).
(c) ADJUSTED MINIMUM RENT shall mean the Minimum Rent as increased
in accordance with this Lease, including Tenant's Share of Operating Costs and
Tenant's Share of Taxes.
(d) AFFILIATED PROPERTY shall have the meaning given to it in
Section 16.5.
(e) AGENT shall mean any agent, consultant, contractor or
subcontractor hired by or reporting to Tenant or its employee, and any employee
of any such entity.
(f) APPRAISER shall have the meaning given to it in Section
51.3(c).
(g) ARTICLE shall refer the major subdividions of this Lease
listed in Section 1.3.
(h) ASSIGNEE or ASSIGNEE shall have the meaning given to it in
Section 16.9.
4
(i) ASSIGNMENT or ASSIGNMENT shall have the meaning given to it
in Section 16.9.
(j) ASSIGNOR or ASSIGNOR shall have the meaning given to it in
Section 16.9.
(k) BANKRUPTCY CODE shall have the meaning given to it in
Section 39. 1.
(l) BUILDING LESSOR shall have the meaning given it in Section
8.3.
(m) CLEANING SERVICE RIDER shall mean EXHIBIT B and all
amendments thereto.
(n) COMMENCEMENT DATE shall have the meaning given to it in
Section 3. 1.
(o) COMMENCEMENT DATE NOTICE shall have the meaning given to it
in Section 3.4.
(p) CONTROLLING INTEREST shall have the meaning given to it in
Section 16.9(d).
(q) CURE PERIOD shall have the meaning given to it in Section
34.2.
(r) DEFAULT shall have the meaning given to it in Section 34.1.
(s) ENVIRONMENTAL shall mean anything affecting the physical
health, safety or condition of human beings, wildlife, or natural resources.
(t) ENVIRONMENTAL AUTHORITY shall have the meaning given to it
in Section 15.2.
(u) ESTIMATED MINIMUM RENT shall have the meaning given to it
in Section 5 1.3 (d).
(v) EVENT OF DEFAULT shall have the meaning given to it in
Section 34.2.
(w) EXPIRATION DATE shall have the meaning given to it in
Section 3.4.
(x) FINAL OCCUPANCY DATE shall have the meaning given it in
Section 3.3.
(y) FOURTH FLOOR SPACE shall have the meaning given to it in
Section 52. 1.
(z) GUARANTOR shall mean Phoenix International Life Sciences,
Inc., a Canadian corporation.
(aa) GOVERNMENTAL AUTHORITY shall mean any governmental or quasi
governmental legislative, executive, judicial, regulative or independent body,
department, office, agency, bureau or similar entity or any agent, officer or
representative thereof.
(bb) HVAC shall mean heating, ventilation or air conditioning.
(cc) IMPROVEMENTS shall mean the Building and other improvements
on the Land.
(dd) INITIAL TERM shall have the meaning given to it in Section
3.4.
(ee) INTEREST shall have the meaning given to it in Section
34.3.
(FF) LAND shall mean the land on which the Demised Premises is
located.
(gg) LAND LESSOR shall have the meaning given to it in Section
29.3.
(hh) LANDLORD shall have the meaning given to it in Section
29.2.
(ii) LANDLORD'S AVAILABILITY NOTICE shall have the meaning given
to it in Section 52.1(a).
5
(jj) LANDLORD'S DETERMINATION shall have the meaning given to it
in Section 6.3(c).
(kk) LANDLORD'S DETERMINATION NOTICE shall have the meaning
given to it in Section 51.3(a).
(ll) LANDLORD'S RECAPTURE NOTICE shall have the meaning given to
it in Section 16.4.
(mm) LANDLORD'S RECAPTURE RIGHT shall have the meaning given to
it in Section 16.4.
(nn) LANDLORD'S WORK shall have the meaning given to it in
Section 23. 1.
(oo) LANDLORD'S WORK LETTER shall refer to EXHIBIT E, if any.
(pp) LAW shall mean any statute, ordinance, order, code, rule or
regulation of a Governmental Authority now or hereafter in effect as applicable
under the circumstances.
(qq) LEGAL HOLIDAY shall have the meaning given to it in EXHIBIT
C.
(rr) LICENSE shall have the meaning given to it in Section 10.2.
(ss) MANAGING AGENT shall mean the managing agent named on the
signature page of this Lease, or such other person or entity as Landlord may
designate by written notice from Landlord to Tenant, subject to Article 45.
(tt) MARKET RENT shall have the meaning given to it in Section
51.4(b).
(uu) OFFERED SPACE shall have the meaning given to it in Section
52. 1 (a).
(vv) OPERATING COSTS shall have the meaning given to it in
Section 6.2(b).
(ww) OPERATING STATEMENT shall have the meaning given to it in
Section 6.2(a).
(xx) OPERATING YEAR shall mean any calendar year or portion
thereof during the Term of Lease after the Base Operating Year.
(yy) PARKING AREA shall have the meaning given to it in Section
10.2.
(zz) PARTNER shall have the meaning given it in Section 42. 1.
(aaa) PARTNERSHIP TENANT shall have the meaning given to it in
Section 42. 1.
(bbb) PENN shall mean the University of Pennsylvania Health
System.
(ccc) PENN LEASE shall mean the lease for the Demised Premises
between Penn and the Landlord dated August 1, 1995, as the same may have been
amended.
(ddd) REAL ESTATE shall mean, collectively, the Land and the
Building and other improvements theron.
(eee) RENEWAL OPTION shall have the meaning given to it in
Section 51.1.
(fff) RENEWAL TERM shall have the meaning given to it in Section
51.1.
(ggg) RENT COMMENCEMENT DATE shall have the meaning given to it in
Section 3.5.
(hhh) RULES AND REGULATIONS shall mean the rules and regulations
set forth in EXHIBIT D, as same may be amended from time to time as provided
herein.
6
(iii) SECTION shall refer to subdivisions of each Article,
(jjj) SERVICE CHARGE shall have the meaning given to it in Section
34.3.
(kkk) STATE shall mean the state of the United States in which the
Land is located.
(lll) SUBLEASE shall have the meanings given to it in Sections
16.2 and 16.3.
(mmm) SUBLEASING shall have the meaning given to it in Section
16.3.
(nnn) SUBLESSEE shall have the meaning given to it in Section
16.2.
(ooo) SUBSTANTIAL COMPLETION shall have the meaning given to it in
Section 3.2.
(ppp) SUBSTITUTE PREMISES shall have the meaning given to it in
Section 4.1.
(qqq) TAX STATEMENT shall have the meaning given to it in Section
6.1 (a).
(rrr) TAX YEAR shall mean any calendar year or portion thereof
during the Term of Lease after the Base Tax Year.
(sss) TAXES shall have the meaning given to it in Section 6.1 (b).
(ttt) TENANT'S NOTICE OF DISAGREEMENT shall have the meaning given
to it in Section 51.3(a).
(uuu) TENANT'S RENEWAL NOTICE shall have the meaning given to it
in Section 51.2 (a).
(vvv) TENANT'S SHARE OF OPERATING COSTS shall have the meaning
given to it in Section 6.2(a).
(www) TENANT'S SHARE OF TAXES shall have the meaning given to it
in Section 6.1(a).
(xxx) TENANT'S TRANSFER NOTICE shall have the meaning given to it
in Section 16.3.
(yyy) TENANT'S WORK shall have the meaning given to it in Section
13.1 (b).
(zzz) VACATED SPACE shall have the meaning given to it in Section
56.1.
(aaaa)VISITOR shall mean any visitor, guest, licensee or invitee
of Tenant or any Sublessee, including any Agent, while on the Real Estate.
7
1.3 Table of Contents.
1. SUMMARY OF BASIC LEASE PROVISIONS, DEFINITIONS, AND TABLE OF
CONTENTS.................................................................................................1
2. LEASE OF DEMISED PREMISES................................................................................8
3. COMMENCEMENT OF TERM; EXPIRATION DATE....................................................................8
4. RELOCATION.............................................................................................. 9
5. RENT.................................................................................................... 9
6. TAXES; OPERATING COSTS; REIMBURSEMENTS...................................................................9
7. TENANT'S PERSONAL TAXES.................................................................................12
8. SECURITY............................................................................................... 12
9. USE AND OCCUPANCY ......................................................................................13
10. ACCESS; COMMON AREAS; PARKING...........................................................................13
11. RESTRICTIVE COVENANT - FOOD SERVICE.....................................................................14
12. TENANT'S CARE AND REPAIR OF DEMISED PREMISES............................................................14
13. TENANT'S WORK AND INSTALLATIONS.........................................................................15
14. COMPLIANCE WITH LAWS....................................................................................17
15. ENVIRONMENTAL COMPLIANCE................................................................................17
16. ASSIGNMENT; SUBLEASING..................................................................................18
17. NOTIFICATION BY TENANT..................................................................................22
18. RULES AND REGULATIONS...................................................................................22
19. PEACEABLE ENJOYMENT.....................................................................................22
20. SURRENDER...............................................................................................22
21. HOLDING OVER............................................................................................23
22. INDEMNITY...............................................................................................23
23. LANDLORD'S WORK.........................................................................................24
24. SERVICES TO BE PROVIDED BY LANDLORD.....................................................................24
25. ELECTRICITY.............................................................................................25
26. HEATING, VENTILATION AND AIR CONDITIONING...............................................................26
27. CLEANING SERVICES.......................................................................................26
28. LANDLORD'S ACCESS TO DEMISED PREMISES AND ALTERATIONS...................................................26
29. LIMITATION OF LIABILITY.................................................................................27
30. PROPERTY LOSS; DAMAGE; TENANT'S INSURANCE...............................................................28
31. DAMAGES BY FIRE OR OTHER CASUALTY.......................................................................29
8
32. WAIVER OF SUBROGATION...................................................................................30
33. EMINENT DOMAIN..........................................................................................30
34. DEFAULTS; EVENTS OF DEFAULT.............................................................................31
35. REMEDIES FOR EVENTS OF DEFAULT..........................................................................32
36. LANDLORD'S PERFORMANCE; EXPENDITURE.....................................................................34
37. ACCORD AND SATISFACTION.................................................................................35
38. EFFECT OF WAIVERS.......................................................................................35
39. BANKRUPTCY; INSOLVENCY..................................................................................35
40. STATUTORY WAIVER; WAIVER OF TRIAL BY JURY...............................................................36
41. SUBORDINATION OF LEASE; ESTOPPEL CERTIFICATES...........................................................36
42. PARTNERSHIP TENANT......................................................................................37
43. PARTNERSHIP/ PROFESSIONAL CORPORATION TENANT............................................................38
44. CORPORATE/PARTNERSHIP AUTHORITY.........................................................................38
45. MANAGING AGENT..........................................................................................38
46. BROKER..................................................................................................38
47. NOTICES.................................................................................................39
48. INTERPRETATION..........................................................................................40
49. NO OFFER, AGREEMENT OR REPRESENTATIONS..................................................................41
50. APPLICABILITY TO HEIRS AND ASSIGNS......................................................................41
51. RENEWAL OPTION..........................................................................................41
52. RIGHT OF FIRST OFFER....................................................................................43
53. LEASE CONTINGENCY.......................................................................................44
54. SIGNAGE.................................................................................................45
55. GUARANTY................................................................................................45
56. VACATED SPACE...........................................................................................45
EXHIBITS
A. RENTAL PLAN
B. CLEANING SERVICE RIDER
C. LEGAL HOLIDAYS
D. RULES AND REGULATIONS
E. LANDLORD'S WORK LETTER
F. FORM SUBORDINATION AND NON-DISTURBANCE AGREEMENT
GUARANTY AGREEMENT
9
2. LEASE OF DEMISED PREMISES.
2.1 Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, upon the terms and conditions herein set forth, the Demised Premises
in the Building which is situated on the Land.
3. COMMENCEMENT OF TERM; EXPIRATION DATE.
3.1 The parties intend that the Term of Lease shall commence on or
about the Estimated Commencement Date. The actual commencement of the Term of
Lease (the "COMMENCEMENT DATE") shall be the earlier of (1) the date upon which
Landlord's Work, if any, shall be substantially completed; or (2) the date on
which Tenant shall have taken possession or control of or moved furniture or
other personal property into all or any portion of the Demised Promises other
than for the installation of the wiring and cabling for the computer or
communication systems, but in no event prior to July 1, 2000. Provided, however,
if the Commencement Date is delayed because of the failure of Tenant to submit
its final plans on or before the Tenant Drawing Date, the Commencement Date
shall be adjusted to an earlier date which shall reflect the number of days by
which Tenant failed to timely submit its complete plans, approve the Landlord's
plans or otherwise delay the Commencement Date.
3.2 For purposes hereof, Landlord's Work, if any, shall be deemed
to be substantially completed for all purposes hereunder ("SUBSTANTIAL
COMPLETION") on the date upon which Landlord has procured a temporary or
permanent certificate of occupancy permitting occupancy of the Demised Premises
by Tenant.
3.3
(a) Substantial Completion shall be deemed to have occurred
even though (1) minor details of Landlord's Work remain to be done, provided
such details do not unreasonably interfere with the Tenant's occupancy of the
Demised Premises; or (2) any work or installation other than Landlord's Work
being performed by Tenant itself or its own Agent(s) has not been completed.
(b) Notwithstanding anything to the contrary contained in this
Article, if for any reason the Demised Premises are not ready for occupancy on
the Estimated Commencement Date solely due to factors beyond the reasonable
control of Landlord, other than delays caused by Tenant or its Agent such as any
of the delays set forth in Section 23.3, this Lease shall nevertheless continue
in full force and effect; the Commencement Date shall be postponed until
Substantial Completion has occurred; and the Expiration Date shall be adjusted
to provide for the full Term of Lease. If the Demised Premises are not ready for
occupancy on or before November 1, 2000 (the "FINAL OCCUPANCY DATE"), then
Tenant shall thereafter have the right to terminate this Lease by delivering
fifteen (15) days prior written notice to Landlord, provided, however, that if
the Commencement Date shall occur within fifteen (15) days of the receipt of the
Tenant's termination notice, then Tenant's termination notice shall be null and
void and this Lease shall remain in full force and effect. if Landlord shall
determine that the Demised Premises may not be ready for occupancy by the Final
Occupancy Date, Landlord may, at its sole option, deliver to Tenant a notice
which shall provide a revised Final Occupancy Date and Tenant shall have the
option, to be exercised in writing and delivered to Landlord within five (5)
days of receipt of said notice, to either agree to the revised Final Occupancy
Date or terminate this Lease, provided, however, if Tenant fails to exercise its
option within the five (5) day period, then Tenant shall be deemed to have
agreed to the revised Final Occupancy Date. If this Lease is terminated as
provided herein, neither party shall have any obligations to nor rights against
the other whatsoever, including damages as a result of the inability to give
possession by the Estimated Commencement Date, except the Landlord shall be
obligated to return the Security to Tenant within twenty (20) days of the date
of termination. The Final Occupancy Date shall be extended on a day-for-day
basis for each day that a delay is occasioned as a result of the actions or
inactions of the tenant, the Penn Lease and the tenancy thereunder or as a
result of events outside of the control of the Landlord.
(c) Notwithstanding anything to the contrary contained in
this Article, should the Demised Premises not be ready for Tenant's occupancy on
the Estimated Commencement Date and said delay is due to the modification by
Tenant or its Agent of any plans for Landlord's Work in the Demised Premises
after the Tenant Drawing Date, or due to other delays caused by Tenant or its
Agent or the employees of either, then the Commencement Date shall be adjusted
to an earlier date which shall reflect the number of days by which Tenant
delayed the Commencement Date.
3.4 On or about the Commencement Date, Landlord or Managing Agent
shall deliver to Tenant a notice (the "COMMENCEMENT DATE NOTICE") reasonably and
equitably fixing the Commencement Date and the expiration date ("EXPIRATION
DATE"), which shall be the last day of the month which reflects the Term of
Lease (the "INITIAL TERM"), as well as the payee and address for all rental
payments. Tenant shall acknowledge receipt of the Commencement Date Notice by
signing a copy of same and returning it to Landlord within five (5) business
days of the receipt thereof. Tenant's failure to sign the Commencement Date
Notice and return same to Landlord as provided in this Section shall be
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deemed to be Tenant's acceptance of the Commencement Date and Expiration Date as
stated in the Commencement Date Notice.
3.5 The date upon which Tenant is obligated to commence payment of
Minimum Rent hereunder ("RENT COMMENCEMENT DATE") shall be the Commencement
Date. Notwithstanding the foregoing, Tenant shall pay Landlord upon the
execution of this Lease (a) the Prepayment of Rent, which shall be applied to
Minimum Rent due beginning the first full month that Tenant is obligated to pay
Minimum Rent; and (b) the Security. Should Tenant be entitled to any Rental
Credit, so long as no Event of Default has occurred under this Lease, such
Rental Credit shall be applied to the Minimum Rent as it becomes due, commencing
with the Commencement Date, but subject to Section 35.1(b). If the Commencement
Date occurs on a day other than the first (1st) day of a calendar month, then,
the Minimum Rent for such partial calendar month shall be prorated at a per diem
rate of one-thirtieth (1/30) of the first full monthly installment of Minimum
Rent.
3.6 Landlord shall obtain a certificate of occupancy for the
Demised Premises, the cost of which shall be part of the Construction Credit.
3.7 If, prior to the Commencement Date, Tenant shall enter the
Demised Premises to make any installations of its equipment, fixtures or
furnishings, Landlord shall have no liability for any personal injury or
property damage suffered by Tenant, its employees or Agents, except to the
extent caused directly by Landlord's gross negligence or misconduct.
4. RELOCATION. Intentionally deleted.
5. RENT.
5.1 Tenant covenants to pay to Landlord the Minimum Rent, payable
in equal monthly installments in advance, so that such payments are received by
Landlord no later than the first day of each month during the term of this
Lease, subject to Section 3.5 hereof.
5.2 Tenant covenants to pay Adjusted Minimum Rent in a timely
manner as provided in Article 6 hereof.
5.3 The Minimum Rent or Adjusted Minimum Rent payable hereunder by
Tenant shall be paid without notice or demand and without set-off, counterclaim,
abatement, reduction or defense, in currency or immediately-available funds
which at the time of payment is legal tender for public and private debts in The
United States of America, at the address of Landlord set forth above or at such
other place as Landlord or its Managing Agent may from time to time designate by
written notice to Tenant.
6. TAXES; OPERATING COSTS; REIMBURSEMENTS.
6.1
(a) Tenant hereby covenants that for any Tax Year during
the term of this Lease for which the Taxes shall exceed the Taxes for the Base
Tax Year, Tenant shall pay to Landlord in the manner provided hereinbelow, as
additional rent, an amount equal to Tenant's Occupancy Percentage times such
excess ("TENANT'S SHARE OF TAXES") in accordance with Landlord's statement
thereof (the "TAX STATEMENT"). The Tax Statement shall indicate (1) Tenant's
Share of Taxes; (2) an initial lump-sum amount, if any, of Tenant's Share of
Taxes required to be paid by Tenant within thirty (30) days of its receipt of
the Tax Statement; (3) a monthly amount, if any, to be added to the Adjusted
Minimum Rent due to the increase in Tenant's Share of Taxes; and (4) the
computation of such amounts. After Landlord issues its Tax Statement, Tenant
shall include the monthly amounts specified in the Tax Statement in the Adjusted
Minimum Rent until the next Tax Statement is issued.
(b) "TAXES" shall mean all real estate taxes, charges and
assessments imposed upon the Demised Premises or the Real Estate or any part
thereof by any Governmental Authority. Landlord, while acting in a commercially
reasonable manner, shall have the exclusive right, but not the obligation, to
contest or appeal any Taxes or assessments levied on the Real Estate or any
portion thereof and any expense incurred by Landlord in connection with such
contest or appeal, including, but not limited to, fees payable to attorneys,
appraisers and consultants, shall be deemed "Taxes".
11
(c) Notwithstanding anything to the contrary contained
herein, should the Demised Premises or any other portion of the Building be
separately assessed for tax purposes, then Landlord shall have the option of
declaring Tenant's Share of Taxes to be (1) the actual Taxes allocated to the
Demised Premises, or (2) that amount which is the result of multiplying (i) the
Taxes for that portion or portions of the Building containing the Demised
Premises times (ii) a ratio, which shall be the square footage of the Demised
Premises divided by the total square footage of the portion of the Building to
which the Taxes in question apply.
6.2
(a) Tenant hereby covenants that for each Operating Year
after the Base Operating Year during the term of this Lease for which the
Operating Costs shall exceed the Operating Costs for the Base Operating Year,
Tenant shall pay to Landlord in the manner provided hereinbelow, as additional
rent, an amount equal to Tenant's Occupancy Percentage times such excess
("TENANT'S SHARE OF OPERATING COSTS") in accordance with Landlord's statement
thereof (the "OPERATING STATEMENT"). The Operating Statement shall indicate (1)
Tenant's Share of Operating Costs; (2) an initial lump-sum amount, if any, of
Tenant's Share of Operating Costs required to be paid by Tenant within thirty
(30) days of its receipt of the Operating Statement; (3) a monthly amount, if
any, to be added to the Adjusted Minimum Rent due to the increase in Tenant's
Share of Operating Costs; and (4) the computation of such amounts. Landlord
shall present its Operating Statement within ninety (90) days after the
commencement of each Operating Year. After Landlord issues its Operating
Statement, Tenant shall include the monthly amounts specified in the Operating
Statement in the Adjusted Minimum Rent until the next Operating Statement is
issued.
(b) "OPERATING COSTS" shall include each and every
expense incurred in connection with the ownership, administration, management,
operation, repair, replacement, renewal, and maintenance of the Real Estate,
including but not limited to, wages, salaries and fees paid to persons either
employed by Landlord or engaged as contractors in the operation of the Real
Estate, and such other typical items of expense as are indicated below. All such
costs and the values allocated to services rendered and supplies delivered shall
be reflected on the Operating Statement and shall be exhibited to the Tenant
upon request pursuant to Section 6.3(a).
(c) Some of the typical items of expense which comprise
or may comprise the Operating Costs which are to be included in the Operating
Statement are or may be, without limiting the generality of the term Operating
Costs: (1) general repairs, maintenance, and renewal to the exterior and common
areas of the Improvements; (2) except as otherwise set forth herein, utility
costs, including but not limited to, costs of energy to power Landlord's
standard HVAC units serving the Building (both tenant and common areas), and
costs of electricity to light the common areas; (3) cleaning costs, including
but not limited to, window cleaning, general interior office cleaning, and
cleaning of common areas; (4) service and/or maintenance contracts, including
but not limited to, HVAC, rubbish removal, carting, janitorial, security
watchmen, exterminating and snow removal to the extent such services and/or
maintenance are contracted for by Landlord or Managing Agent; (5) costs of
landscaping and maintenance of the Building grounds; (6) costs of insurance and
any commercially reasonable deductible thereunder; (7) salaries, benefits and
work uniforms of superintendents, engineers, mechanics, and custodians; (8)
towel service for common lavatories; (9) sales and use taxes; (10) cost of the
regularly replacing fluorescent tubes and ballasts in tenant spaces, unless due
to the carelessness of such individual tenant; (11) costs, if any, of
landscaping or snow plowing public roadways in or adjacent to the development of
which the Real Estate is a part; and (12) such other costs and expenses
generally incurred in the operation, maintenance and repair of first-class real
property of the nature and in the area of the Real Estate.
(d) Operating Expenses shall specifically exclude (1) the cost of
correcting material defects in the construction of the Building; (2)
salaries of officers and executives of Landlord above the level of Property
Manager; (3) improvements made to another tenant's demised premises solely
for the sole benefit of that tenant; (4) interest or principal payments
made on any mortgage loan or any ground lease or other underlying lease;
(5) real estate brokerage commissions or other costs (including advertising
costs) directly incurred in procuring tenants; (6) any amounts paid to a
service provider affiliated with Landlord in excess of the amount that
would be paid to an unaffiliated provider of such service; (7) legal,
accounting and consulting fees other than those related to the normal
maintenance and operation of the Real Estate; (8) taxes imposed upon the
income of the Landlord; (9) the cost of work or service performed for any
facilities other than the Real Estate; (10) costs incurred by Landlord that
are reimbursed by insurance or by a tenant; (11) management fees in excess
of fees that would be charged by an independent manager of similar type
Real Estate in the vicinity of the Real Estate, provided, however, that in
no event shall the management fee be less than three percent (3%).
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6.3
(a) The expenditures referred to in this Article shall be
determined in accordance with generally acceptable accounting principles
consistently applied. So long as there is no Default under any provisions of
this Lease, Tenant or its representative shall have the right, at its own
expense, upon reasonable notice and during reasonable hours, to inspect the
books of Landlord for the purpose of verifying the information contained in any
Tax Statement or Operating Statement, provided (1) prior written request for
such inspection shall be made by Tenant; (2) such request is made within ninety
(90) days of receipt of the Tax Statement or Operating Statement to be verified;
(3) Tenant shall have paid the Tax Statement or Operating Statement in full; and
(4) such inspection is conducted by only an independent accounting firm that is
being compensated by Tenant but not being compensated on a contingency fee
basis. Any Tax Statement or Operating Statement not verified within said ninety
(90) day period shall be deemed to be correct.
(b) If Tenant inspects the books of Landlord in
accordance with Section 6.3(a), and determines an error in the Tax Statement or
the Operating Statement, Tenant shall immediately notify Landlord who shall
correct the Tax Statement or the Operating Statement, correct the then current
Adjusted Minimum Rent and provide the necessary credit to Tenant and the other
tenants in the Building by payment within thirty (30) days. If, however,
Landlord disagrees with Tenant's determination, then Landlord shall select an
independent accountant reasonably acceptable to Tenant who shall review Tenant's
determination, the original Tax Statement or Operating Statement and inspect the
books of Landlord for the purpose of making a final determination, the outcome
of which shall be unappealable by Landlord or Tenant. If the independent
accountant selected by Landlord determines that Tenant's determination was
correct and the calculations set forth in the Tax Statement or the Operating
Statement were in error by more than five percent (5%) Landlord shall pay the
cost of the independent account. If, however, the independent accountant
selected by Landlord determines that the calculations as originally stated in
the Tax Statement or the Operating Statement were correct or in error within
five percent (5%) of the correct amount, the cost of the independent account
shall be borne by Tenant. Landlord shall in either event, if necessary, correct
the Tax Statement or the Operating Statement, correct the then current Adjusted
Minimum Rent, and provide the necessary credit to Tenant and the other tenants
in the Building by payment within thirty (30) days.
(c) Notwithstanding anything to the contrary contained in
this Article, if the average occupancy of the Building is less than one hundred
percent (100%) during the Base Operating Year or any subsequent Operating Year,
then Landlord shall make a reasonable determination ("LANDLORD'S DETERMINATION")
of what the Operating Costs for such year would have been if during the entire
year the average tenant occupancy of the Building were one hundred percent
(100%). Landlord's Determination shall be binding and conclusive upon Tenant and
shall for all purposes of this Lease be deemed to be the Operating Costs for
such Operating Year.
6.4 If, due to an error in the preparation of any Tax Statement or
Operating Statement, there shall be an additional amount payable or a refund due
with respect to Taxes and/or Operating Costs for the period covered by such
statement(s), such amount shall be calculated by Landlord or Managing Agent and
sent to Tenant in a revised Tax Statement or Operating Statement, and any amount
payable by the Tenant to the Landlord shall be paid within thirty (30) days, as
additional rent or the amount due to the Tenant shall either be credited against
amounts due or to become due to Landlord or promptly refunded to Tenant
hereunder. However, it is agreed by the parties that any credit shall not in any
way operate to reduce the Minimum Rent payable by Tenant. If such calculation
takes place and/or any payment in connection herewith becomes payable after the
expiration or earlier termination of this Lease, this section shall be deemed to
have survived such expiration or termination.
6.5 Any increase in additional rent under this Article shall be
prorated for the final Tax Year or Operating Year if such Tax Year or Operating
Year covers a period of less than twelve (12) full months, Tenant's obligation
to pay additional rent occurring hereunder prior to the Expiration Date shall
survive the expiration or sooner termination of this Lease.
6.6 If any tenant in the Building for any reason shall not be
provided all services generally provided by Landlord to other TENANTS OF the
Building, then for purposes of determining Operating Costs, Landlord shall
reasonably estimate what Operating Costs would have been had such service been
provided to all tenants. If any appliances or electrical or mechanical equipment
are installed in the Demised Premises or elsewhere on the Real Estate solely for
the use of Tenant or the Demised Premises other than the present HVAC system
serving the entire Demised Premises, such appliances or electrical or mechanical
equipment shall be maintained in good operating condition by Tenant at its sole
cost and expense.
13
6.7 Tenant shall pay to Landlord, within thirty (30) days of
rendition of an invoice therefor, any sales, use, excise or similar tax or
assessment imposed upon this Lease or upon all or any portion of the Minimum
Rent or Adjusted Minimum Rent payable hereunder.
6.8 Tenant shall reimburse Landlord for all reasonable expenses in
connection with the review by Landlord's architect, engineer, planner,
construction advisor or attorney of any alteration, assignment, sublease,
financing, waiver or similar proposed activity or document of or on behalf of
Tenant or any Sublessee within thirty (30) days of rendition of an invoice
therefor.
7. TENANT'S PERSONAL TAXES.
7.1 Tenant agrees to pay all taxes, assessments and fees imposed
upon Tenant or on the personal property or operations of Tenant in connection
with its use and occupancy of the Demised Premises including, but not limited
to, personal property, income, withholding and unemployment compensation taxes,
and to hold Landlord harmless from collection of any such taxes out of monies
due and owing Landlord or property in which Landlord may have an interest. This
provision shall survive the expiration or sooner termination of this Lease.
8. SECURITY.
8.1 Tenant shall deposit the Security with Landlord on the date
hereof as security for the faithful performance and observance by Tenant of the
terms provisions, covenants and conditions of this Lease. It is agreed that if
an Event of Default occurs, Landlord may use, apply or retain the whole or any
part of the Security to the extent required for the payment of any Adjusted
Minimum Rent or additional rent, or any other sum as to which Tenant is in
Default, or for any sum which Landlord may expend or may be required to expend
by reason of such Event of Default, including but not limited to, any damages or
deficiency in the re-letting of the Demised Premises, whether such damages or
deficiency accrued before, after or in the absence of summary proceedings or
other re-entry by Landlord.
8.2 If Tenant shall fully and faithfully comply with all of the
terms, provisions, covenants and conditions of this Lease, the Security shall be
returned to Tenant within forty five (45) days after the Expiration Date, after
delivery of possession of the entire Demised Premises to Landlord as required
hereunder, and less any amounts either due and owing Landlord hereunder or
reasonably required to return the Demised Premises to the condition required
herein.
8.3 In the event of a sale of the Building (with or without the
Land) or a leasing of the Building in its entirety to a third party subject to
the space leases therein (a "BUILDING LESSOR"), Landlord shall have the right to
transfer the Security to the grantee or lessee, and Landlord shall thereupon be
released by Tenant from all liability for the return of such Security; and
Tenant agrees to look solely to the new owner or Building Lessor, as the case
may be, for the return of said Security. It is agreed that the provisions hereof
shall apply to every transfer or assignment made of the Security to a new
Building owner or Building Lessor. The aforementioned provisions shall be
self-operative without any further act by Landlord or Tenant necessary to
effectuate the same. Tenant further covenants that it will not assign or
encumber or attempt to assign or encumber the Security, and that Landlord shall
not be bound by any such assignment, encumbrance, attempted assignment or
attempted encumbrance.
8.4 If Landlord applies or retains all or any portion of the
Security as may be permitted herein, Tenant shall restore within fifteen (15)
business days of receipt of Landlord's notice the amount so applied or retained
so that at all times during the term hereof the amount deposited with Landlord
shall be not less than the amount indicated in Article 1, subject to adjustment
pursuant to Articles 16 and 34.
8.5 Tenant shall not designate any portion of the Security as
Minimum Rent or Adjusted Minimum Rent due hereunder.
9. USE AND OCCUPANCY.
9.1 Tenant covenants to use and occupy the Demised Premises for
the Permitted Use and for no other purpose whatsoever, and in compliance with
the other provisions of this Lease. Tenant represents that there shall be no
walk-in or transient business transactions in or about the Demised Premises.
9.2 Tenant shall not do or permit any act or thing to be done in or to the
Demised Premises which is contrary to Law, or which will invalidate, be in
conflict with, or increase the rates of any public liability, fire or other
policies of insurance at any time carried by or for the benefit of Landlord with
respect to the Demised Premises or the Building, or which shall or might subject
Landlord to any liability or responsibility to any person or for property or
Environmental damage. Tenant shall not keep anything in the Demised Promises
which is contrary to Law except as now or hereafter permitted by any Fire
Department, Board of Fire Underwriters, Fire Insurance Rating Organization or
other similar authority having jurisdiction over the Real Estate, nor shall
Tenant use the Demised Premises or any other portion
14
of the Real Estate in a manner which would otherwise present an unreasonable
risk to the Building or the occupants thereof.
10. ACCESS; COMMON AREAS; PARKING.
10.1 Subject to the other provisions of this Lease, including
Section 10.2 and the Rules and Regulations, Tenant shall have the right of
nonexclusive use, in common with others, of (a) automobile parking spaces not
designated for use by others, (b) driveways, (c) footways, (d) lobbies,
corridors and elevators for access to the Demised Premises; and (e) such other
facilities as may be constructed from time to time on the Real Estate and
designated by Landlord for Tenant's use.
10.2 The number of parking spaces in the parking area or areas
serving the Building (the "PARKING AREA") is limited and must be allocated
reasonably among all tenants of the Building. Provided no Event of Default has
occurred Tenant shall have a nonexclusive, revocable license (the "LICENSE") to
park up to the number of cars indicated under Allotted Parking in Section 1.1 by
Tenant and any Sublessee, or the employees or Visitors of either, in the Parking
Area. Landlord shall not be responsible to Tenant for enforcing the License or
for violation of the License by other tenants of the Building or by third
parties. Landlord agrees to xxxx, no later than the Commencement Date, at
Tenant's sole cost and expense, the number of parking spaces indicated under
Designated Spaces in Section 1.1 for exclusive use of Tenant. Said Designated
Spaces shall not increase the Allotted Parking defined in Section 1.1.
10.3 Any of the following actions shall be deemed a material
Default under this Lease; (a) the use of any more than the Allotted Parking by
Tenant, any Sublessee or their employees or Visitors; (b) the parking in spaces
designated for the exclusive use of any other tenant in the Building by Tenant,
any Sublessee or their employees or Visitors; (c) the parking other than in
marked parking spaces by Tenant, Sublessee or their employees or Visitors; or
(d) the maintenance, repair or cleaning of any vehicle in the Parking Area by
Tenant, any Sublessee or their employees or Visitors. In any such events,
Landlord may suspend or revoke the License should such practice continue after
written notice from Landlord or Managing Agent; and/or Landlord may exercise
such other remedies as are provided in this Lease. Landlord shall not be
responsible to Tenant for policing Tenant's Designated Spaces nor for the use
thereof by other tenants of the Building or by other third parties.
10.4 If the number of parking spaces in the Parking Area is reduced
by circumstances beyond the reasonable control of Landlord, the Allotted Parking
and Designated Spaces shall be reduced proportionately.
10.5 Nothing contained in this Lease shall be deemed to create
liability upon Landlord for any damage to motor vehicles in the Parking Area or
for any loss of property from within those motor vehicles, or for any injury in
the Parking Area to Tenant or any Sublessee or any of their employees or
Visitors except to the extent determined to be caused by the gross negligence or
willful misconduct of Landlord. Tenant shall acquaint its and any Sublessee's
employees with any parking rules and regulations promulgated by Landlord or
Managing Agent and Tenant assumes responsibility for compliance by said
employees with such parking provisions, and shall be liable to Landlord for all
unpaid parking charges, if any, incurred by said employees.
10.6 If Tenant or any Sublessee or the employees or Visitors of
either park illegally or in areas designated for use by others, or in driveways,
fire lanes or areas not striped for general parking, then Landlord may charge
Tenant, as additional rent, Fifty and 00/100 Dollars ($50.00) per day for each
instance each motor vehicle is so parked. In addition, Tenant authorizes
Landlord and Managing Agent to tow away from the Parking Area, at Tenant's sole
cost and expense, vehicles used by Tenant, any Sublessee or any employees or
Visitors of either and/or to attach violation stickers or notices to any motor
vehicles used by Tenant or any Sublessee or their employees or Visitors parked
illegally or in violation of this Article or any parking rules and regulations
promulgated by Landlord or Managing Agent. Any amount due from Tenant pursuant
to this Article shall be deemed additional rent.
10.7 Tenant shall not conduct, nor permit any Sublessee or the
employees or Visitors of either to conduct, any soliciting or picketing in or on
any of the common areas of the Real Estate.
10.8 Tenant shall not permit its or any Sublessee's employees or
Visitors to smoke or carry lighted tobacco products in the common areas of the
Building, including but not limited to lobbies, elevators, hallways, stairwells,
and restrooms. Landlord shall post such areas as nonsmoking areas in accordance
with Law.
11. RESTRICTIVE COVENANT - FOOD SERVICE.
11.1 Tenant hereby covenants and agrees that it shall not permit
the use of the Demised Premises or any portion thereof, for the service of food
to anyone other than Tenant's employees or their guests ; nor shall Tenant
maintain any facilities for the sale or consumption of food to and by anyone
15
other than Tenant's employees or their guests, including vending machines,
without, in each case, obtaining the prior written consent of the Landlord,
which consent may be withheld in Landlord's sole discretion.
11.2 Landlord or the owner of the office park in which the Building
is located may, at the discretion of either, enter into agreements with third
parties for the operation of a restaurant, cafeteria, coffee-cart or similar
food service as an amenity for the Building and/or other buildings in said
office park. In order to enhance the viability of any such food service, Tenant
shall not prepare contract for, serve or otherwise make available a food service
facility in competition with such third parties.
11.3 Tenant shall not suffer or permit the sale of consumption of
food or drink in the common areas of the Building or in the driveways or Parking
Area of the Real Estate by the employees or Visitors of Tenant or any Sublessee;
provided, however, that Tenant's and any Sublessee's employees may utilize any
picnic tables or similar areas on the Real Estate which may be designed by
Landlord or Managing Agent for the use of the tenants in the Building.
12. TENANT'S CARE AND REPAIR OF DEMISED PREMISES.
12.1 Tenant shall, throughout the term of this Lease, take good
care of the Demised Premises and maintain, replace or repair the fixtures and
appurtenances therein. Tenant shall give Landlord or Managing Agent prompt
notice of any maintenance or repairs needed to the Demised Premises or the
fixtures therein, including but not limited to lighting fixtures. Tenant shall
also be responsible for all damage or injury to the Demised Premises or any
other part of the Real Estate and the systems and equipment thereof, whether
requiring structural or nonstructural repairs: (a) caused by or resulting from
the carelessness, omission, neglect or improper conduct of Tenant, any Sublessee
or the employees or Visitors of either; or (b) which arises out of any work,
labor, service or equipment done for or supplied to Tenant or any Sublessee; or
(c) which arises out of the installation, use or operation of the property or
equipment of Tenant or any Sublessee. Tenant shall also promptly repair all
damage to the Building and the Demised Premises caused by the moving of
fixtures, furniture and equipment of Tenant or any Sublessee.
12.2 Tenant shall promptly make, at Tenant's expense, all repairs
in and to the Demised Promises for which Tenant is responsible, using only
contractors for the trade or trades in question approved by Landlord or Managing
Agent, which approval shall not be unreasonably withheld. Any other repairs in
or to the Building or the facilities and systems thereof for which Tenant is
responsible shall be performed by Landlord at Tenant's expense, which shall not
exceed the fair market expense for such repair.
12.3 Tenant shall not clean nor require, permit, suffer or allow
any window in the Demised Premises to be cleaned from the outside. Such cleaning
shall be governed by the Cleaning Service Rider.
13. TENANT'S WORK AND INSTALLATIONS.
13.1
(a) Without Landlord's prior written consent, which Landlord
may withhold in its sole discretion, Tenant shall not make or permit any
structural changes in or to the Demised Premises or the Building of any nature,
nor any changes to any of the electrical, plumbing or HVAC systems in the
Building.
(b) Subject to the prior written consent of Landlord, which
consent shall not be unreasonably withheld conditioned or delayed, and to the
provisions of this Article, Tenant or any permitted Sublessee at its expense,
may make alterations, decorations, installations (including but not limited to
the installations of the wiring and cabling for the computer and/or
communications systems prior to or after the Commencement Date), renovations or
improvements in or to the interior of the Demised Premises ("TENANT'S Work")
which are non-structural and which do not adversely affect or place unusual
loads upon any utility services, or plumbing and electrical lines, or electrical
or HVAC systems, by using mechanics or other contractors previously approved by
Landlord and properly licensed to do such work in the community where the Real
Estate is located. Tenant covenants that Tenant's Work, whether prior, on or
subsequent to the Commencement Date, shall be in harmony with any other work in
the Real Estate and shall not result in work stoppages or picketing at the Real
Estate; and Tenant, at its own expense, shall immediately take whatever steps
are necessary to avoid any such work stoppage or picketing. Landlord's consent
shall not be required: (a) if Tenant's Work is limited to only cosmetic or
decorating work, such as painting and carpeting; or (b) if the cost of Tenant's
Work does not exceed Fifteen Thousand Dollars ($15,000) in the aggregate,
provided that Tenant provides plans and specifications of such Tenant Work to
Landlord prior to the commencement of same.
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13.2 Tenant shall not place a load upon any floor of the Demised
Premises exceeding either the floor load per square foot area which it was
designed to carry or the amount prescribed by Law. Landlord reserves the right
to prescribe the weight and position in the Demised Premises of all safes, file
cabinets, bookshelves, business machines (other than desk-top machines),
mechanical equipment and other heavy personal property. Such installations shall
be placed and maintained by Tenant, at Tenant's sole cost and expense, in
settings sufficient, in Landlord's judgment, to absorb and prevent vibration,
noise and unreasonable annoyance to any occupant of the Building or adjacent
properties.
13.3. Tenant shall, before undertaking any Tenant's Work, at its
cost and expense, obtain all permits, approvals and certificates required by any
Governmental Authority and (upon completion) certificates of final approval
thereof, and shall promptly deliver originals or duplicates or clear copies of
all such permits, approvals and certificates to Landlord or Managing Agent.
Tenant agrees to carry and will cause Tenant's Agents to carry during any
activities under this Article such xxxxxxx'x compensation, general liability,
personal and property damage insurance as Landlord may reasonably require,
naming Landlord as an additional insured as its interest may appear. Tenant
agrees (a) to pay or cause to be paid promptly, when due, the entire cost of any
work done by or for Tenant or any Sublessee upon the Demised Premises so that
the Demised Premises shall be at all times free of claims or liens for labor or
materials; and (b) to defend, indemnify and hold Landlord harmless from and
against any and all injury, loss, demands, claims or damages to any person or
property occasioned by or in connection with Tenant's Work, to the extent not
paid to Landlord by the carrier of any insurance, and except to the extent
directly due to the gross negligence or willful misconduct of Landlord.
13.4 Notwithstanding the foregoing, if any mechanic's or other lien
is filed against the Demised Premises or the Building for work claimed to have
been done for or materials or services furnished to Tenant or any Sublessee,
whether or not done pursuant to this Article, the same shall be discharged by
Tenant within fifteen (15) days after notice thereof from Landlord or Managing
Agent, at Tenant's expense, by posting a bond or taking such other steps as may
be required by Law. If Tenant fails to discharge such lien within such ten-day
period, Landlord may do so on Tenant's behalf at Tenant's sole cost and expense.
13.5 All fixtures and all paneling, partitions (other than modular
systems), railings, flooring, electrical conduits and cabling and like
improvements installed in the Demised Premises at any time, either by Tenant or
any Sublessee or by Landlord on Tenant's behalf, shall, upon installation,
become the property of Landlord and shall remain upon and be surrendered with
the Demised Premises, unless Landlord, by notice to Tenant no fewer than twenty
(20) days prior to the expiration or sooner termination of this Lease, elects to
relinquish Landlord's right thereto and to have same removed by Tenant, in which
event the same shall be removed from the Demised Premises by Tenant prior to the
expiration of the Lease, at Tenant's sole cost and expense. Provided, however,
if Tenant's Work is submitted to Landlord for Landlord's approval, at the time
of Landlord's approval Landlord shall designate the portion of Tenant's Work, if
any, which may have to be removed, at Landlord's option, at the expiration or
sooner termination of this Lease. If Tenant's Work is not performed in
accordance with the terms of this Section or is performed in accordance with the
terms of this Section and such Tenant Work does not require Landlord's approval,
and Tenant does not seek Landlord's approval, Landlord may elect in accordance
with this Section, to have such Tenant Work or any portion thereof removed at
the expiration or sooner termination of this Lease.
13.6 Nothing in this Article shall be construed to give Landlord
title to or to prevent Tenant's removal of Tenant's or any Sublessee's moveable
trade fixtures, office furniture and equipment, but upon removal of any such
property from the Demised Premises or upon removal of other improvements as may
be required by Landlord pursuant to the terms of this Lease, Tenant shall
immediately and at its expense, repair and restore the Demised Premises to the
condition existing prior to installation and shall repair any damage to the
Demised Premises or the Building due to such removal.
13.7 All monies due Landlord or Landlord's agent or contractor by
Tenant for work performed pursuant to Article 12 or this Article shall be paid
within thirty (30) days of Tenant's receipt of an invoice therefor. All such
monies which are not timely received by Landlord or Landlord's contractor shall
accrue interest from the due date at the rate of Interest, or such higher rate
as may normally be charged to Landlord by its contractor.
13.8 Tenant shall promptly remove or correct any Tenant's Work not
performed in accordance with this Article and, in the case of removal, restore
the Demised Premises to its preexisting condition.
13.9 Tenant, at its cost and expense, shall remove from the Demised
Premises and the Building all boxes and other packaging resulting from Tenant's
or any Sublessee's installations, alteration, renovations and decorations.
13.10 Upon Landlord's demand, Tenant shall pay Landlord as
additional rent a fee established by Landlord for any supervisory,
administrative and/or coordination services that Landlord may (but shall
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not be obligated to) perform in connection with Tenant's Work. Landlord's
performance of all or any of such services (i) shall be without liability to or
recourse against Landlord, (ii) shall not release Tenant from its obligation to
strictly comply with each and every provision of this Lease relating to Tenant's
Work and (iii) shall not constitute any warranty by Landlord regarding adequacy
of design, workmanship or quality of materials.
14. COMPLIANCE WITH LAWS.
14.1 Tenant, at Tenant's sole cost and expense, shall promptly
comply with (a) all present and future Laws of all Governmental Authorities and
all changes therein applicable to Tenant or to the Demised Premises or, to the
extent incumbent upon Tenant, to any other portion of the Real Estate; (b) any
direction of any public officer pursuant to Law; and (c) all Laws which shall
impose any violation, order or duty upon Landlord or Tenant with respect to the
Demised Premises or, to the extent incumbent upon Tenant, any other portion of
the Real Estate, whether or not arising out of Tenant's occupancy, use or manner
of use thereof (including Tenant's Permitted Use). Nothing herein shall require
Tenant to make structural repairs or alterations which are structural in nature
unless Tenant's use of the Demised Premises or method of operation therein shall
be in violation of any such Law or shall result in the Demised Premises or the
Building being in violation of such Law.
14.2 Tenant may, at its expense (and if necessary, in the name of
but without expense to Landlord) contest by appropriate proceedings, prosecuted
diligently and in good faith, the validity or applicability to the Demised
Promises of any such Law, and Landlord, at Tenant's expense, shall cooperate
with Tenant in such proceedings; provided that (a) Tenant shall defend,
indemnify and hold Landlord harmless against all liability, loss or damage which
Landlord shall suffer by reason of such non-compliance or contest, including,
but not limited to, reasonable attorney's fees and other expenses reasonably
incurred by Landlord; (b) such non-compliance or contest shall not constitute or
result in any violation of any superior lease or superior mortgage, or if such
superior lease and/or superior mortgage shall permit such non-compliance or
contest on condition of the taking of action or furnishing of security by
Landlord, such action shall be taken and such security shall be furnished at the
sole cost and expense of Tenant; (c) such non-compliance or contest shall not
subject Landlord to prosecution for a criminal offense; (d) such action shall
not cause the Demised Premises or any part thereof or of the Real Estate to
become subject to a lien or to be condemned or vacated; and (e) Tenant shall
keep Landlord advised as to the status of such proceedings.
15. ENVIRONMENTAL COMPLIANCE.
15.1 Landlord hereby represents, without performing any due
diligence, inquiry or independent investigation, that, to the best of its
knowledge, it has complied with and shall use its best efforts to comply with
any and all Environmental Laws affecting the Real Estate and any and all
amendments thereto and regulations and orders promulgated thereunder.
15.2 Tenant shall, at Tenant's own cost and expense, comply with
any and all Environmental Laws affecting the Demised Premises or the Real Estate
and any and all amendments thereto and regulations and orders promulgated
thereunder, to the extent related to or arising out of the use or occupancy of
the Demised Premises by Tenant or any Sublessee.
15.3 Tenant shall, at Tenant's own cost and expense, make all
submissions to, provide all information to, and comply with all requirements of,
the Pennsylvania Department of Environmental Protection, or the U.S.
Environmental Protection Agency or any other Governmental Authority having
Environmental jurisdiction over the Real Estate or any portion thereof or the
occupants thereof (collectively, an "ENVIRONMENTAL AUTHORITY") which are related
to or arise out of the use and occupancy of the Demised Premises.
15.4 Should any Environmental Authority determine that a cleanup or
similar plan be prepared or that a cleanup be undertaken because of any spills
or discharges of hazardous substances or wastes in or about the Real Estate
caused by Tenant, any Sublessee or the employees or Visitors of either, then
Tenant shall, at Tenant's own expense, promptly and diligently prepare and
submit the required plans and financial assurances, and carry out the approved
plans to the satisfaction of such Environmental Authority.
15.5 At no expense to Landlord, Tenant shall promptly provide all
information reasonably requested by Landlord or Managing Agent or by any
Environmental Authority for preparation of affidavits and documents for
submission to an Environmental Authority, and shall promptly sign such
affidavits when requested by Landlord or Managing Agent.
16. ASSIGNMENT; SUBLEASING.
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16.1 Tenant, for itself, its legal representatives, creditors,
heirs, distributees, administrators, trustees, successors and assigns, expressly
covenants that it shall not assign, mortgage, pledge or otherwise encumber this
Lease; nor, except as specifically set forth below, underlain or suffer or
permit the Demised Premises or any part thereof to be used by anyone other than
the Tenant named in Section 1.1.
16.2 For purposes of this Article, any occupancy arrangement
(including, without limitation, verbal agreements, management agreements,
concessions, licenses and space-sharing agreements or arrangements) affecting
all or any part of the Demised Premises, other than a direct lease with Landlord
or an assignment of this Lease permitted hereunder, shall be referred to as a
"SUBLEASE"; and any user or occupant of all or part of the Demised Premises,
other than the Tenant or an assignee permitted under this Article shall be
referred to as a "SUBLESSEE".
16.3 If Tenant shall desire to assign this Lease, or to permit a
Sublessee to use or occupy all or any portion of the Demised Premises I
("SUBLEASE" or a " SUBLEASING"), Tenant shall first submit in writing to
Landlord or Managing Agent a notice ("TENANT'S TRANSFER NOTICE") setting forth
in reasonable detail:
(a) the identity and address of the proposed assignee or
Sublessee;
(b) the terms and conditions of the assignment or
Subleasing;
(c) the nature and character of the business of the
proposed assignee or Sublessee and its proposed use of the Demised Premises;
(d) evidence that the proposed assignee or Sublessee is a
United States citizen or a partnership, limited liability company or corporation
qualified to do business in the Commonwealth of Pennsylvania and organized and
in good standing under the laws of one of the States of the United States;
(e) banking, financial and other credit information
relating to the proposed assignee or Sublessee reasonably sufficient to enable
Landlord to determine the proposed assignee's or Sublessee's financial
responsibility; and
(f) in the case of a Subleasing of only a portion of the
Demised Premises, plans and specifications for Tenant's layout, partitioning,
and electrical installations for the portion of the Demised Premises to be
subleased.
16.4
(a) If the nature and character of the business of the
proposed assignee or Sublessee, and the proposed use and occupancy of the
Demised Premises, or any portion thereof, by the proposed assignee or Sublessee,
is in keeping and compatible with the Permitted Use and the dignity and
character of the Building all as reasonably determined by Landlord, then,
subject to consent to any such proposed assignment or Subleasing; provided,
however, that Tenant shall, in Tenant's Transfer Notice, advise Landlord of
Tenant's intention to assign this Lease or to permit a Subleasing of all or any
part of the Demised Premises, from, on and after a stated date (which date shall
not be less than sixty (60) days after sending of Tenant's Transfer Notice), in
which event Landlord shall have the right ("LANDLORD'S RECAPTURE RIGHT"), to be
exercised by giving written notice to tenant ("LANDLORD'S RECAPTURE NOTICE") to
recapture the space described in Tenant's Transfer Notice. Landlord Recapture
Notice shall, if given, cancel and terminate this Lease with respect to the
space therein described as of the date which shall be the later of (1) the date
set forth in Tenant's Transfer Notice as the commencement of the proposed
assignment or Sublease, or (2) the date that Landlord receives a temporary or
permanent certificate of occupancy permitting the assignee's or Sublessee's
occupancy of the relevant portion of the Demised Premises. Landlord hereby
agrees that notwithstanding Landlord's Recapture Right stated hereinabove,
Tenant may, at any time during the Term of this Lease with the exception of the
last two (2) lease years of the Term or the Renewal Term, if applicable,
sublease or assign no more than five thousand (5000) square feet of the Demised
Premises free of Landlord's Right of Recapture, provided such sublease or
assignment in each instance is to a single assignee or sublessee and is
otherwise in conformance with the terms of this Article.
(b) If less than all of the Demised Premises are recaptured by
Landlord, Landlord shall construct and erect such partitioning and modify
Building systems as may be required to separate the space retained by Tenant
from the space recaptured. The cost of such alterations shall be borne fully and
exclusively by Tenant, shall constitute additional rent hereunder and shall be
payable to Landlord within twenty (20) days following a statement to Tenant from
Landlord or Managing Agent for the amount thereof. The Minimum Rent and/or the
Adjusted Minimum Rent, Tenant's Occupancy Percentage, and Tenant's Allotted
Parking shall be adjusted pursuant to a written amendment to this Lease on the
basis of the number of square feet retained by Tenant in proportion to the
number of square feet demised under
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this Lease immediately prior to such recapture; and this Lease, as so amended,
shall continue thereafter in full force and effect as to the portion of the
Demised Premises retained by Tenant.
16.5 In addition to the foregoing requirements, (a) no Sublease
shall violate any Law or result in the occupancy of the Demised Premises by more
than two sole proprietors, firms, partnerships or corporations, including the
Tenant hereunder; (b) no Sublease shall be for a term of less than two years,
unless the unexpired term of this Lease shall be less than two years at the
commencement of the Sublease; (c) no assignee or Sublessee shall be an existing
tenant of, or any party then negotiating for space in, the Building, or any
other land or building in the office park in which the Building is located which
is (1) owned by Landlord, any affiliate of Landlord or any partnership in which
Landlord or an affiliate of Landlord is a partner, or (2) managed by Landlord or
an affiliate of Landlord (any such property referred to under subsection
16.5(c)(1) or (2) being hereinafter referred to as an "AFFILIATED PROPERTY");
(d) no Sublease shall result in the occupancy of less than 1,000 square feet of
space; (e) there shall be no Default under any of the terms and conditions of
this Lease at the time of Tenant's Transfer Notice or at the effective date of
such assignment or Subleasing; (f) no Subleasing shall be for a rental rate less
than that currently being charged for comparable space in the Building or any
Affiliated Property; and (g) Tenant shall pay when due all brokerage or similar
commissions arising from any assignment or Sublease.
16.6 Anything to the contrary in this Article notwithstanding,
Landlord shall not consent to any assignment or Sublease unless Tenant agrees at
the time of the proposed assignment or Sublease and in Tenant's Transfer Notice
to pay over to Landlord seventy-five (75%) percent of (a) all consideration (of
whatever nature) that would be payable by the prospective assignee or Sublessee
to Tenant, whether in one or more payments or transfers and whether pursuant to
such assignment or Sublease or any other agreement related thereto, which
exceeds (b) the pro rata share of the Adjusted Minimum Rent, or the relevant
portion thereof, payable by Tenant hereunder.
16.7 Any Sublease must specifically provide that (a) it shall be
subject and subordinate to all of the terms and conditions of this Lease; (b)
the use of the Demised Promises thereunder shall be restricted exclusively to
the Permitted Use; (c) the term thereof shall not extend beyond the Expiration
Date; (d) no Sublessee or its heirs, distributees, executors, administrators,
legal representatives, trustees, successors or assigns, without the prior
consent of Landlord in each instance, which consent Landlord may withhold in its
absolute discretion, shall (1) assign, whether by merger, consolidation or
otherwise, mortgage or encumber its interest in any Sublease, in whole or in
part, (2) Sublease or permit the Subleasing of, that part of the Demised
Premises affected by such Subleasing or any portion thereof, or (3) permit such
part of the Demised Premises affected by such Subleasing or any part thereof to
be occupied or used, by any person other than such Sublessee; and (e) in the
event of cancellation or termination of this Lease for any reason whatsoever or
of the surrender of this Lease, whether voluntary, involuntary or by operation
of Law, prior to the expiration date of such Sublease, including any extensions
and renewals granted thereunder, the Sublessee, at Landlord's option and in its
sole discretion, shall either vacate the demised Premises or shall make full and
complete attornment to Landlord for the balance of the term of the Sublease,
which attornment shall be evidenced by an agreement in form and substance
reasonably satisfactory to Landlord which the Sublessee shall execute and
deliver within five (5) business days after request by Landlord. The Sublessee
shall waive the provisions of any Law now or hereafter in effect which may give
the Sublessee any right of election to terminate the Sublease or to surrender
possession of the Demised Premises in the event any proceeding is brought by
Landlord to terminate or assume this Lease,
16.8 No assignee or Sublessee shall receive any credit whatsoever
from Landlord for security deposits, rent or any other monies paid to Tenant
unless same shall have been actually received and receipted by Landlord.
16.9 Each of the following events shall be deemed to constitute an
"ASSIGNMENT" of this Lease and shall require the prior written consent of
Landlord in each instance as provided in this Article; any person or entity
making an assignment shall be referred to herein as an "ASSIGNOR", and any
person or entity to whom an assignment is made shall be referred to herein as an
"ASSIGNEE":
(a) Any assignment or other transfer of this Lease by
operation of Law;
(b) Any hypothecation, pledge or collateral assignment of
this Lease;
(c) Any assignment or other transfer of this Lease in
connection with bankruptcy or creditor's rights;
(d) Any transfer or acquisition, whether in a single
transaction or cumulatively, of (1) the majority of the issued and outstanding
stock or voting interests of a corporate Tenant, except as may occur through
public trades on any recognized security exchange or over-the-counter market;
(2) a majority of the equitable or voting interests of a Partnership Tenant; or
(3) any general partnership interest of a Partnership Tenant (each of the
foregoing being referred to as a "CONTROLLING INTEREST"); or
20
(e) Any issuance (other than in a public offering) of an
interest or interests in Tenant (whether stock or partnership interests or
otherwise) to any person, entity or group of related persons or affiliated
entities, whether in a single transaction or in a series of related or unrelated
transactions, such that following such issuance, such person, entity or group
shall hold a Controlling Interest in Tenant.
16.10 Tenant, its Sublessees, and their respective legal
representatives, heirs, distributees, executors, administrators, trustees,
creditors, successors and assigns acknowledge and agree that the restriction
that Landlord's consent under certain circumstances to a proposed assignment of
this Lease or to a Subleasing shall not be unreasonably withheld shall not be
intended or construed as an agreement or covenant on the part of Landlord, but
rather as a qualification on Tenant's covenant not to assign this Lease or enter
into or permit any Sublease; and it is further agreed that Landlord shall not be
liable in damages or subject to liability of any kind or nature whatever by
reason of Landlord's failure or refusal to grant its consent to any proposed
assignment of this Lease or Subleasing of the Demised Premises, the sole and
exclusive recourse being a declaratory judgment on the question of Landlord's
reasonableness.
16.11 It is a condition to the effectiveness of any assignment or
Sublease otherwise complying with this Article that (a) Tenant shall increase on
Landlord's demand the amount of Security deposited with Landlord by a sum to be
reasonably determined by Landlord and (b) the assignee shall execute,
acknowledge and deliver to Landlord an agreement in form and substance
satisfactory to Landlord whereby the assignee assumes all obligations of Tenant
under this Lease, and agrees that the provisions of this Article shall continue
to be binding upon it in respect of all future assignments of this Lease. No
assignment of this Lease shall release the assignor or any guarantor or obligor
hereof from its continuing obligations to Landlord under this Lease or any
renewals extension or modifications thereof, except as expressly herein
provided; and Tenant, its guarantors and obligors, and any subsequent assignor
shall continue to remain jointly and severally liable (as primary obligor) for
all Tenant's obligations hereunder.
16.12 Tenant, at its expense, covenants to obtain all permits,
approvals and certificates of occupancy required by any Governmental Authority
for any work or in connection with any assignments of this Lease or any Sublease
and any alterations to the Demised Premises in connection therewith, and Tenant
shall deliver copies of the same to Landlord prior to the commencement of work,
if work is to be done, and prior to the occupancy of any or all of the Demised
Premises by the assignee or Sublessee. All such alterations shall be in strict
compliance with Article 13 hereof. Tenant shall submit a duplicate original
counterpart of the assignment or Sublease to Landlord within five (5) business
days of the date of execution.
16.13 If Landlord withholds its consent to any proposed assignment
or Sublease as permitted in this Article, or if Landlord exercises Landlord's
Recapture Right under Section 16.4, Tenant shall indemnify, defend and hold
harmless Landlord against and from all loss, liability, damage, cost and expense
(including attorneys' fees and disbursements) resulting from any claims that may
be made against Landlord by the proposed assignee or Sublessee or by any brokers
or other persons claiming a commission or similar compensation in connection
with the proposed assignment or Sublease.
16.14 If Landlord consents to any proposed assignment or Sublease
and Tenant fails to consummate the assignment or Sublease to which Landlord
consented within sixty (60) days after the giving of such consent, Tenant shall
be required again to comply with all of the provisions and conditions of this
Article before assigning this Lease or Subleasing all or part of the Demised
Premises.
16.15 The joint and several liability of the named Tenant and any
immediate or remote successor in interest of the named Tenant for the due
performance and observance of all covenants and conditions to be performed and
observed by Tenant hereunder shall not be impaired by any agreement of Landlord
or Managing Agent extending the time for such performance or observance or by
Landlord or Managing Agent's waiving or failing to enforce any provision of this
Lease.
16.16 The listing of any name other than that of Tenant or any
permitted assignee or Sublessee on any door of the Demised Premises or on any
directory or in any elevator in the Building or otherwise shall be at Landlord's
sole discretion, and shall not operate to vest in the person so named any right
or interest in this Lease or in the Demised Premises or the Building, or be
deemed to constitute, or serve as a substitute for, any prior consent required
under this Article, and it is UNDERSTOOD THAT any such listing shall constitute
a license extended by Landlord which shall be revocable at Landlord's will by
written notice to Tenant.
16.17 If this Lease is assigned, or if the Demised Premises or any
part thereof is subleased, Landlord may, after a Default, collect rent directly
from the assignee or Sublessee and apply the net amount collected to the rent
herein reserved; but no such assignment, Subleasing or collection shall be
deemed a waiver of this covenant or the acceptance of the assignee or Sublessee
as a tenant, or a release of Tenant from the further performance by Tenant of
any of the covenants on the part of Tenant contained
21
herein; and no such collection of rent by Landlord shall be characterized as a
termination, cancellation or modification of this Lease, unless Landlord so
notifies Tenant in writing.
16.18 Any provisions of this Article to the contrary
notwithstanding, but subject to the other terms, conditions and provisions
contained in said Article, including but not limited to Section 16.3:
(a) Any corporate Tenant shall have the right, without
the consent of Landlord and free of Landlord's Recapture Right, but after
Landlord's receipt of Tenant's Transfer Notice, to assign this Lease or sublease
all or any part of the Demised Premises to any corporation organized and in good
standing under the laws of one of the States of the United States controlling,
controlled by or under common control with Tenant; provided that no such
assignee shall further assign this Lease or sublease any or all of theDemised
Premises and no such Subleassee shall assign or encumber its Sublease or
futhersublease all or any part of the Demised Premises; and provided, further,
that any event resulting in such assignee or Sublessee ceasing to be a
corporation controlling, controlled by or under common control with Tenant shall
be deemed to be an assignemtn or Sublease requiring the prior consent of
Landlord pursuant to the provisions of this Article and Tenant shall thereupon
comply with all provisions of this Article applicable thereto. For purposes
hereof, "CONTROL" means ownership of at least eighty percent (80%) of the issues
and outstanding voting stock of such corporation.
(b) Any corporate Tenant shall also have the right,
without the consent of Landlord and free of Landlord's Recapture Right, but
after Landlord's receipt of Tenant's Transfer Notice, to assign this Lease to
any corporation organized and in good standing under the laws of one of the
States of the United States succeeding to Tenant by merger or consolidation in
accordance with applicable statutory provisions for merger or consolidation of
corporations or by purchase of all or substantially all of Tenant's assets;
provided that subsequent to such merger, consolidation or purchase, the
shareholder's equity (capital stock, additional paid-in capital and retained
earnings) of the successor corporation or the purchasing corporation, as the
case may be, shall be at least equal to the shareholder's equity of Tenant
immediately prior to such merger, consolidation or purchase and this fact shall
be so certified by the chief financial officer of the assignor and the assignee.
(c) It is Landlord's intent to permit assignment and
Subleasing pursuant to this Section exclusively as an accommodation to the BONA
FIDE and legitimate business organizational needs of Tenant, and notwithstanding
the provisions hereof, no assignment of this Lease or Subleasing of all or any
part of the Demised Premises without Landlord's consent hereunder shall be
permitted where the sole or primary purpose of such assignment or Subleasing is
to permit occupancy of all or any part of the Demised Premises by a third party
in avoidance of Landlord's consent, or in the case of a corporation's purchasing
all or substantially all of Tenant's assets, where this Lease constitutes all or
a substantial portion of such assets.
(d) Tenant shall promptly give Landlord prior written
notice of any assignment of this Lease or Subleasing as required under this
Section accompanied by all documentation required by Landlord to establish
compliance with the requirements of subsections (a) and (b) above, and Tenant
shall also promptly provide, Landlord with a copy of any executed instrument of
merger, consolidation or assignment or the executed Sublease, as the case may
be.
17. NOTIFICATION BY TENANT.
17.1 Tenant shall inform Landlord or its Managing Agent immediately
in case of fire or accident within the Demised Premises or elsewhere upon the
Real Estate if involving Tenant, any Sublessee, or the employees or Visitors of
either, or if Tenant has actual knowledge of such fire or accident.
18. RULES AND REGULATIONS.
18.1 Tenant, for itself and for any Sublessee and their employees
arid Visitors, covenants to comply with the Rules and Regulations. Landlord and
Managing Agent shall have the right to make reasonable additions and amendments
to the Rules and Regulations from time to time, and Tenant, on behalf of itself,
any Sublessee and their employees and Visitors, agrees to
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comply with such additions and amendments after deliveries of copies thereof to
Tenant or the posting of copies thereof in a prominent place in the Building.
19. PEACEABLE ENJOYMENT.
19.1 Subject to the terms and provisions of this Lease and to all
mortgages and ground leases of record to which this Lease may be or may become
subordinate, Tenant, upon t mely payment of all Minimum Rent, Adjusted Minimum
Rent, additional rent, and other monies due and payable by Tenant hereunder and
upon Tenant's observing, keeping and performing all of the other terms arid
provisions of this Lease, shall lawfully, peaceably and quietly have, hold,
occupy and enjoy the Demised Premises during the term hereof.
20. SURRENDER
20.1 Upon the last day of the term of this Lease, or the sooner
termination thereof, Tenant shall quit and surrender the Demised Premises to
Landlord in good order, condition and repair, except for ordinary wear and tear;
and the Demised Premises and the remainder of the Real Estate shall be free of
any and all hazardous substances, wastes or conditions and shall be in
compliance with all applicable Laws of any Environmental Authority with respect
to any hazardous subs, slices or wastes for which Tenant is responsible
hereunder or pursuant to any Law.
20.2 Prior to or upon the expiration or sooner termination of this
Lease, Tenant, at its own cost and expense shall remove from the Demised
Premises all trade fixtures, partitions, equipment, personal property, or other
improvements required to be removed from the Demised Premises pursuant to
Article 13 and/or Article 23 without injury to the Demised Premises. All such
property that is not removed from the Demised Premises prior to the expiration
or sooner termination of this Lease shall be, at the election of Landlord and
with absolutely no liability whatsoever to Tenant or any Sublessee, either (a)
retained or disposed of by Landlord as its own property without any obligation
whatsoever to Tenant or any Sublessee or (b) removed from the Demised Premises
and disposed of by any means whatsoever by Landlord, at Tenant's sole cost and
expense.
20.3 Tenant's obligation to observe the covenants contained in this
Article shall survive the expiration or sooner termination of this Lease.
21. HOLDING OVER.
21.1 Tenant hereby specifically agrees that it shall pay Landlord
one hundred seventy five percent (175%) of the fair market rental value of the
Demised Premises, as reasonably determined by Landlord (but in no event less
than double the Adjusted Minimum Rent then applicable under the Lease) for each
month or partial month during which Tenant or any Sublessee retains possession
of the Demised Premises, or any part thereof, after the expiration or earlier
termination of this Lease.
21.2 Nothing contained in this Lease, nor the paying by Tenant and
acceptance by Landlord or Managing Agent of holdover rent, nor any verbal
consent by anyone nor any detrimental reliance by Tenant or any Sublessee, shall
be construed as a consent by Landlord to the occupancy or possession by Tenant
or such Sublessee of the Demised Premises or any portion thereof beyond the
Expiration Date or sooner termination of the term hereof, unless consented to in
writing by Landlord in its sole and absolute discretion. Tenant specifically
agrees that Landlord, upon the Expiration Date or sooner termination of the term
hereof, shall also be entitled to consequential damages, foreseen or unforseen
for Tenant's failure to timely quit the Demised Premises, and to the benefit of
all other available legal remedies for summary possession of the Demised
Premises.
22. INDEMNITY.
22.1 Tenant shall be strictly liable for the acts and omissions of
Tenant, its Sublessee(s) and any Visitors with respect to the Real Estate. In
accordance therewith, Tenant shall defend, indemnify and hold harmless Landlord,
its directors, officers, partners, employees, shareholders and agents and their
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predecessors in interest and successors and assigns against and from (a) any and
all claims (1) arising from the conduct of Tenant or any Sublessee, or the
employees or Visitors of either, or of any business or any work or thing
whatsoever done to the Demised Premises, or any condition created in or about
the Demised Premises during the term of this Lease, except to the extent due to
the gross negligence or willful misconduct of Landlord, or (2) arising from any
negligent or otherwise wrongful act or omission of Tenant or any Sublessee, or
the employees or Visitors of either; (b) any failure by Tenant or any Sublessee
to comply with the provisions of this Lease; (c) all costs, expenses and
liabilities incurred by Landlord in connection with each such claim or action or
proceeding brought thereon, including but not limited to all legal fees and
expenses; and (d) any damages of any nature, including consequential damages,
foreseen or unforseen, suffered by Landlord due to the holding over in the
Demised Premises by Tenant or any Sublessee beyond the expiration or sooner
termination of this Lease.
22.2 In case any action or proceeding shall be brought against
Landlord or any of the foregoing indemnitees by reason of any such claim,
Tenant, upon notice from Landlord, shall resist and defend such action or
proceeding with counsel previously and reasonably approved by Landlord.
22.3 Landlord shall be strictly liable for the acts and omissions
of Landlord and its agents with respect to the Real Estate. In accordance
therewith, Landlord shall defend, indemnify and hold harmless Tenant, its
directors, officers, partners, employees, shareholders and agents and their
predecessors in interest and successors and assigns against and from (a) any and
all claims (1) arising from the conduct of Landlord or its agents, or of any
business or any work or thing whatsoever done to the Demised Premises, or any
condition created in or about the Demised Premises during the term of this
Lease, except to the extent due to the negligence or willful misconduct of
Tenant, or (2) arising from any negligent or otherwise wrongful act or omission
of Landlord or its agents; (b) any failure by Landlord or its agents to comply
with the material provisions of this Lease; (c) all costs, expenses and
liabilities incurred by tenant in connection with each such claim or action or
proceeding brought thereon, including but not limited to all legal fees and
expenses.
22.4 In case any action or proceeding shall be brought against
Tenant or any of the foregoing indemnitees by reason of any such claim,
Landlord, upon notice from Tenant, shall resist and defend such action or
proceeding with counsel previously and reasonably approved by Tenant.
23. LANDLORD'S WORK.
23.1 Landlord shall be required to undertake the work set forth in
Landlord's Work Letter, attached hereto as EXHIBIT E ("LANDLORD'S WORK").
23.2 Tenant agrees that on or before the Tenant Drawing Date it
shall provide to Landlord for approval and acceptance, such construction
drawings and specifications reasonably required by Landlord for Tenant's layout,
partitioning, ceiling, electrical, floor covering, painting and other
installations/finishes in the Demised Premises in sufficient detail such that
the Landlord can timely obtain the necessary building permits ("TENANT
DRAWINGS"). Prior to the commencement of Landlord's Work, Landlord shall deliver
to Tenant a copy of the contractor's bid for the work required by the approved
Tenant Drawings, which bid shall include a breakdown of the costs of
construction by line item customary in such bid breakdown. Tenant shall have the
one-time option, to be exercised by delivering written notice to Landlord within
five (5) days after the delivery of the bid, to: (i) add items to the drawings,
(ii) remove items from the drawings, or (iii) upgrade items of the drawings;
such option to be exercised with Landlord's consent which may not be
unreasonably withheld. Landlord at its cost and expense shall furnish and
install in accordance with such drawings only so much of the work required by
Tenant by the above drawings as is allowed by a credit to Tenant equal to the
Construction Credit. The Construction Credit may Only be applied towards
Landlord's Work in accordance with approved drawings. If any portion of the
Construction Credit is not so used by Tenant on or prior to the Commencement
Date, except as defined as the "Rental Credit", any excess shall be forfeited
and shall not be used as a credit against Minimum Rent or any other sums due
Landlord hereunder. To the extent Tenant's drawings require work, the cost of
which is not contemplated by Landlord's Work Letter and exceeds the Construction
Credit, such work shall be reduced to an "extra" or "change order" to be
executed by both Landlord or Managing Agent and Tenant, which shall indicate the
work required, the cost thereof to be paid by Tenant, and the additional time
required, if any, for completion. The cost of Landlord's Work performed,
including extras or change orders, under this Article 23 shall be subject to
Landlord's standard xxxx-up, overhead, profit and general conditions.
23.3 Tenant shall be responsible for any delays on the part of
itself or any of its employees or Agents in completing the Demised Premises by
reason of (a) failure of any of them to cooperate with Landlord; (b) delays in
submitting any drawings or specifications, or in supplying information, or in
approving drawings, specifications or estimates or supplying such information in
insufficient detail; (c) delays in Tenant's giving authorizations; (d) any extra
or change order desired by Tenant; (e) any changes by any of them in any plans
or designations subsequent to the Tenant Drawing Date; (f) any similar act or
omission of any of them; or (g) any other similar causes or factors beyond
Landlord's reasonable control.
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23.4 No less than sixty (60) days prior to the expiration or sooner
termination of this Lease, Landlord, in its sole and absolute discretion, shall
have the right to designate all or any portion of Landlord's Work dealing with
the fire suppression system and the raised flooring in the computer room to be
removed by Tenant, at Tenant's sole cost and expense, upon the expiration or
sooner termination of this Lease.
24. SERVICES TO BE PROVIDED BY LANDLORD.
24.1 Subject to the other provisions hereof, Landlord shall
maintain in good working order and repair and in first class condition the
exterior and the structural portions of the Building, including the windows and
roof and other structural portions of the Demised Premises, the common portions
of the Building interior and the Building plumbing, electrical, HVAC systems,
including those Building systems serving the Demised Premises. Such services
shall be included in Operating Costs. Tenant agrees to give prompt notice to
Landlord or Managing Agent of any condition in the Demised Premises in need of
repair.
24.2 So long as no Event of Default has Occurred, Landlord shall
provide the following services to Tenant, the cost of which services shall be
included in Operating Costs:
(a) Public elevator service on business days from 8 a.m. to 6
p.m. and one elevator subject to call at all other times.
(b) Subject to Article 26, HVAC to the Demised Premises and
the Building.
(c) Water for ordinary lavatory and office purposes; provided,
however, if Tenant uses or consumes water for any other purposes or, in
Landlord's reasonable opinion, in quantities per square foot of Demised Premises
which are in excess of the Building average, Landlord may install a water meter
at Tenant's cost and expense to register such water consumption; Tenant shall
thereafter maintain the water meter in good working order and repair and shall
be obligated to pay Landlord as additional rent for water consumed as shown on
said meter and not included in Operating Costs.
(d) Subject to the Cleaning Service Rider and Article 27,
cleaning service for the Demised Premises and for the common areas of the
Building.
(e) The listing of Tenant's name on the Building lobby
directory, if any; provided that any changes to Tenant's listing on said
directory or any other directory in the Building or on the remainder of the Real
Estate shall be (1) in conformity with Landlord's Building standard design, (2)
prepared by Landlord and at Tenant's expense, if subsequent to the Commencement
Date; and (3) for the Tenant named in Article 1 or such Sublessee or assignee
permitted in strict compliance with Article 16. Landlord shall have no
obligation to list more than two names on the Building lobby directory.
24.3 Landlord, with notice in advance if possible, reserves the
right to stop any of the services to be provided hereunder when reasonably
necessary by reason of accident or emergency, or for repairs, alterations,
replacements or improvements which Landlord, in its reasonable discretion, may
deem necessary or desirable, without same affecting Tenant's obligations
hereunder.
25. ELECTRICITY.
25.1 Landlord's obligation to supply electric current shall be
limited to the current required to power the Building standard HVAC systems,
elevators, and the lighting of common areas of the Building and the Real Estate.
25.2 Tenant shall be obligated to pay as additional rent within
thirty (30) days after receipt of a xxxx therefor: (i) the entire cost of
supplying all electricity consumed within the Demised Premises; (ii) Tenant's
allocable share of electricity costs attributable to the HVAC system serving the
fourth floor of the Building, which shall be apportioned based upon a percentage
which the area of the Demised Premises bears to the total rentable area of the
fourth floor of the Building; and (iii) Tenant's Occupancy Percentage of the
cost of supplying electricity to the common areas of the Building.
25.3 Landlord may install a meter and furnish the electric current
to the entire floor of which the Demised Premises forms a part of the Building,
in which case Tenant shall pay as additional rent Tenant's share of Landlord's
cost therefor. Tenant's share of costs under this Article shall be based upon a
percentage which the area of the Demised Premises bears to the total rentable
area of the floor or Building which is served by said meter.
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25.4 Landlord may install a meter and furnish the electric current
to the Demised Premises only and no other part of the Building, in which case
Tenant shall pay as additional rent all of Landlord's cost therefor.
25.5 Tenant shall not bypass or otherwise adversely affect the
proper operation of any electrical or other utility meter.
26. HEATING, VENTILATION AND AIR CONDITIONING.
26.1 Landlord shall provide and furnish Building HVAC to the
Demised Premises and tile Building between the hours of 8:00 a.m. to 6:00 p.m.,
Monday through Friday, other than Legal Holidays. Any special HVAC requirements
of Tenant shall be at Tenant's sole cost and expense.
26.2 At all other times not otherwise provided for in Section 26.1
above, Landlord agrees that it shall provide after-hours HVAC upon written or
telephone request from Tenant at least five (5) business hours in advance of
such extra hours of operation on a weekday and before noon on Friday for weekend
use, stating the hours of operation desired, for which Tenant shall pay to
Landlord as additional rent hereunder, a sum equal to Twenty Dollars ($20.00)
per hour per floor or portion thereof plus the metered utility costs for
providing after-hours HVAC (irrespective of whether any other tenants in the
Building are furnished with HVAC at the same time), that charge being intended
to cover Landlord's cost for providing same. If during the term of this Lease,
or any renewal hereof, Landlord's cost for providing after-hours HVAC shall
increase by virtue of wage increases, the above-specified hourly charge shall be
adjusted from time to time to reflect said increases. In addition to the
foregoing, should there be any charges incurred by Landlord for attendant
engineers or for similar additional requirements as may be imposed from time to
time by any Governmental Authority, collective bargaining agreement or the like,
Tenant agrees to reimburse Landlord for its out-of-pocket expenses incurred in
connection therewith, related to the after-hours service requested by Tenant.
27. CLEANING SERVICES.
27.1 Landlord shall maintain the grounds, common areas arid Parking
Areas, and, so long as no Event of Default has occurred and is continuing
hereunder, such other cleaning services within the Demised Premises as are set
forth on the Cleaning Service Rider.
27.2 Tenant acknowledges that Landlord's obligation to cause the
office areas of the Demised Premises to be cleaned excludes any portions of the
Demised Premises not used as office areas (e.g., closets, storage rooms,
exclusive computer areas, private lavatories and areas used for the storage,
preparation, service or consumption of food or beverages). Tenant shall pay
directly to Landlord the cost of removal from the Demised Premises of any of
Tenant's refuse or rubbish, including large cartons or other containers or
refuse, in excess of that generated from the day-to-day operation of an
executive and administrative office of Tenant's size; and Tenant, at Tenant's
expense, shall cause all portions of the Demised Premises not used as office
areas to be cleaned daily in a manner and by a person or entity reasonably
satisfactory to Landlord. Tenant, at Tenant's expense, also shall cause any
portions of the Demised Premises used for the storage, preparation, service or
consumption of food or beverages to be exterminated against infestation by
vermin, rodents, bugs and insects both on a regular basis and whenever there
shall be evidence of any infestation.
27.3 Tenant shall contract directly with Landlord or, at Landlord's
option, directly with Landlord's contractors, for the removal of garbage, excess
refuse and rubbish, for cleaning services in excess of those furnished by
Landlord, and for the extermination services required hereunder.
28. LANDLORD'S ACCESS TO DEMISED PREMISES AND ALTERATIONS.
28.1
(a) Landlord or Landlord's employees OR AGENTS, on twenty four
(24) hours notice except in the case of an emergency, shall have the right to
enter and/or pass through the Demised Premises or any part thereof, at
reasonable times during reasonable hours (or in the event of an emergency, at
any time) (1) to examine the Demised Premises and to show them to the holders of
mortgages or prospective purchasers, mortgagees or lessees of the Building; (2)
for the purpose of making such repairs or changes in or to the Demised Premises
or its facilities, as may be provided for by this Lease or as may be mutually
agreed upon by the parties or as Landlord may be required to make by Law or in
order to repair, maintain or improve the Demised Premises or any other portion
of the Building or its fixtures or facilities; and (3) during the last twelve
(12) months of the term of the Lease, for the purposes of showing the Demised
Promises to prospective tenants. Tenant shall permit Landlord to use, maintain,
replace and improve pipes, conduits and supports in and through the Demised
Premises and to erect new pipes and conduits and structural members therein or
therethrough, provided such new installations are concealed within walls,
floors, or ceilings. Landlord may, during the progress of any work in or about
the
26
Demised Premises, take all necessary materials and equipment therein or
therethrough without the same constituting an eviction. Landlord shall use its
reasonable efforts not to unreasonably interfere with Tenant's use and occupancy
of the Demised Premises.
(b) If Tenant is not present to open and permit an entry into
the Demised Premises, Landlord or Landlord's employees or agents may enter the
same whenever such entry may be necessary or permissible by master key or
forcibly and, provided reasonable care is exercised to safeguard Tenant's
property, such entry shall not render Landlord or its employees or agents liable
therefor, nor in any event shall the obligations of Tenant hereunder be
affected.
28.2 Landlord, its agents and employees shall have the right at any
time, without the same constituting an eviction and without incurring liability
to Tenant therefor (a) to change the arrangement and/or location of public
entrances, passageways, doors, doorways, corridors, elevators, stairs, toilets
or any other public parts of the Building; (b) to make repairs, alterations or
improvements to any portion of the Building; (c) to perform any work that may be
necessary to comply with any Laws of any Governmental Authority having
jurisdiction over the Demised Premises or the Building or to prevent waste or
deterioration of the Demised Premises or the Building; (d) to change the name,
number or designation by which the Building may be known upon reasonable advance
notice; or (e) to change any lawns, sidewalks, driveways, Parking Areas or
streets adjacent to or around the Building which will not unreasonably interfere
with Tenant's use of the Demised Premises.
28.3 Landlord shall use reasonable efforts to minimize its
disturbance of Tenant in undertaking the activities described in this Article in
or adjacent to the Demised Premises, and Landlord shall not be liable to Tenant
by reason of any inconvenience, annoyance or injury to business arising from any
of the aforementioned alterations, additions, and improvements.
29. LIMITATION OF LIABILITY.
29.1 Notwithstanding anything to the contrary contained herein,
each and every term, covenant, condition and provision of this Lease, is hereby
made specifically subject to the provisions of this Article.
29.2 The term "LANDLORD" as used in this Lease means only the
current Landlord or Building Lessor, so that in the event of any conveyance of
such interest and the transfer to the transferee of any funds then being held
under this Lease by Landlord, such Landlord shall be and hereby is entirely
freed and relieved of any and all obligations of Landlord hereunder thereafter
accruing, and the transferee shall be and hereby is deemed to have assumed all
of the obligations of Landlord hereunder. The foregoing provision shall be
self-operative and shall be deemed to occur automatically without further
agreement between Landlord and Tenant.
29.3 It is further specifically understood and agreed that
notwithstanding anything to the contrary contained herein or otherwise provided
at Law or in equity, there shall be absolutely (a) no liability whatsoever to
Landlord or any lessor of the Land (A "LAND LESSOR") in excess of either's
interest in the Real Estate, (whether any of the foregoing be an individual,
proprietorship, corporation, joint venture, tenancy in common, firm, partnership
or other entity); (b) no personal liability whatsoever on the part of the
members of any firm, proprietorship, partnership, joint venture or other
unincorporated Landlord or Land Lessor with respect to any of the terms,
covenants and/or conditions of this Lease; and (c) no personal liability on the
part of any director, officer, or employee of any Landlord or Land Lessor. In
the event of a breach or default by Landlord of any of its obligations under
this Lease or any claim or suit in respect of this Lease or the Demised Premises
or the Real Estate or any portion thereof, Tenant shall look solely to the then
Landlord for the satisfaction of each and every remedy of Tenant, and no
judgment shall be entered against any individual, director, officer, employee,
partner, proprietor or joint venturer of Landlord or Land Lessor or any of their
predecessors in interest or successors in interest, such exculpation of personal
and additional liability which is in excess of such person's or partnership's
interest in the Real Estate to be absolute and without any exception whatsoever.
29.4 If at any time any windows of the Demised Premises are,
temporarily closed, darkened, blocked or bricked up (or permanently closed,
darkened, blocked or bricked up, if required by Law or if reasonably necessary
in connection with any improvements to the Real Estate) for any reason
whatsoever including, but not limited to Landlord's own acts, Landlord shall not
be liable for any damage Tenant may sustain thereby; and Tenant shall not be
entitled to any compensation therefor nor abatement or diminution of rent; nor
shall the same release Tenant from its obligations hereunder nor constitute an
eviction or partial eviction.
29.5 Landlord shall not be liable for failure to furnish any
services or take any other action required to be provided by it hereunder by
reason of conditions beyond Landlord's reasonable contro1, nor for consequential
damages arising therefrom. There shall be no allowance to Tenant for diminution
of rental value whatsoever, right of offset or termination, and no other or
additional liability on the part of
27
Landlord or its employees or agents by reason of inconvenience, annoyance or
injury to business arising from Landlord or others making repairs, alterations,
additions, improvements or installations in or to any portion of the Building or
the Demised Premises or in and to the fixtures, appurtenances or equipment
thereof. Tenant agrees that, except as set forth hereinbelow Tenant's sole
remedy shall be at law in such instance by way of an action for damages for
breach of contract, except for actions which Tenant may bring in equity for
specific performance to compel Landlord to furnish a service that Landlord is
obligated to perform under this Lease or an action to enjoin Landlord from
making repairs, alterations, additions, improvements or installations as set
forth hereinabove. Tenant agrees that its right to bring an action in equity is
specifically limited as aforesaid and that it will not and may not bring an
action in equity to terminate or suspend any of its obligations hereunder,
including its obligation to pay Rent, nor may it seek to offset or xxxxx Rent or
other sums due hereunder nor may it seek to terminate or otherwise suspend its
tenancy under this Lease. The provisions of this Article shall not apply in the
case of fire or other casualty which are not the responsibility of Tenant and
which shall be governed by Article 31 hereof
30. PROPERTY LOSS; DAMAGE, TENANT'S INSURANCE.
30.1 Tenant and any Sublessee, at their sole cost and expense,
shall procure, provide and maintain in force during the term of this Lease "All
Risk" insurance, to be written by a good and solvent insurance company qualified
to write insurance in the Commonwealth of Pennsylvania, reasonably satisfactory
to Landlord or Managing Agent, and having a policyholders' rating of no less
than A+ XV as determined by the AM Best Company, or any successor thereto, which
shall cover Tenant's (or Sublessee's) personal property, equipment and
improvements in the Demised Premises or elsewhere on the Real Estate against
loss or damage by theft, vandalism, fire and ally other hazards or casualties in
an amount sufficient to provide for the actual replacement cost thereof. Neither
Landlord nor its employees or agents shall be obligated to make any repair or
reimburse Tenant for any act or loss to be covered by the insurance required
hereunder.
30.2 Landlord or its contractors or agents shall not be liable for
any loss of or damage to any property of Tenant or of others whatsoever, whether
by reason of theft, burglary or otherwise, nor for any injury or damage to
persons or property resulting from any cause of whatsoever nature, except to the
extent determined to be due to the gross negligence or willful misconduct of
Landlord. Landlord and its employees and agents shall not be liable for any such
damage caused by other tenants or persons in, upon or about the Real Estate or
caused by construction or operations of any private, public or quasi-public
work.
30.3 Should Tenant or any Sublessee be self-insured for all or any
portion of any loss or damage to its property, or should Tenant's or any
Sublessee's insurer be unwilling or unable to compensate Tenant or such
Sublessee in full for such damage, Tenant and all such Sublessees shall be
deemed to have released and waived all right of recovery for such damage
against Landlord by Tenant or anyone claiming through or under Tenant by
way of subrogation or otherwise.
30.4 Landlord shall endeavor to have its cleaning contractors lock
all exterior doors to the Demised Premises and activate simple alarm systems, if
any; however, Tenant covenants to insure against all loss or damage arising out
of Landlord's or its cleaning contractor's failure to lock doors or activate
alarms, and notwithstanding anything to the contrary contained herein neither
Landlord nor its cleaning contractors nor any of their employees or agents shall
be field liable for any loss or damages arising therefrom.
30.5 Tenant and any Sublessee at its sole cost and expense, shall
also procure, provide and maintain in force during the term of this Lease
comprehensive general liability insurance, which (a) shall be written by good
and solvent insurance companies qualified to write insurance in the Commonwealth
of Pennsylvania, reasonably satisfactory to Landlord, and having a
policyholders' rating of no less than A+ XV as determined by the AM Best
Company, or any successor thereto; (b) shall include coverage for personal
liability, contractual liability, Tenant's (or Sublessee's) legal liability,
bodily injury, death and property damage, all on an occurrence basis with
respect to the business carried on, in or from the Demised Premises and Tenant's
(or Sublessee's) use and occupancy of the Demised Premises; (c) shall provide
coverage for any one occurrence or claim of not less than $2,000,000; and shall
insure against such other perils and in such amounts as Landlord or Managing
Agent may from time to time reasonably require upon not less than ninety (90)
days' prior written notice.
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30.6 Each of the insurance policies required in this Article shall
include Landlord, Managing Agent, and any Land Lessor as additional insureds and
shall protect Landlord in respect of claims by Tenant as if Landlord were
separately insured, and contain air undertaking by the insurer that no material
change adverse to Landlord, any Land Lessor or Tenant (or Sublessee) will be
made and such policy will not lapse or be canceled, except after not less than
thirty (30) days' prior written notice to Landlord of the intended change, lapse
or cancellation. Any such notice shall not relieve Tenant of any of its
obligations hereunder. On or before the Commencement Date and thereafter, at
least thirty (30) days prior to the expiration date of any policy, Tenant agrees
to deliver to Landlord a duplicate original of the aforesaid policies or a
certificate thereof reasonably satisfactory to Landlord; and Tenant (and any
Sublessee) shall further modify such policies and certificates within ten (10)
business days of being notified to reflect any change in Landlord, Land Lessor,
or Managing Agent.
31. DAMAGES BY FIRE OR OTHER CASUALTY.
31.1 If the Building or the Demised Premises or any part thereof
shall be damaged by fire or other casualty, Tenant shall immediately inform
Landlord or Managing Agent thereof, and this Lease shall continue in full force
and effect, except as hereinafter set forth.
31.2 Except as specifically provided in this Article, Tenant agrees
that it shall not be relieved of the obligations to pay Minimum Rent, Adjusted
Minimum Rent or any additional rent in case of damage to or destruction of the
Building or any portion thereof.
31.3 If all or a material portion of the Demised Premises are
damaged or rendered unusable by fire or other casualty but the Building is not
substantially damaged, and the damages to the Demised Premises can, in
Landlord's reasonable judgment, be reasonably repaired within one hundred eighty
(180) days of the occurrence of such damage, the damages, to the extent
affecting the tenant installation provided by Landlord, shall be repaired by and
at the expense of Landlord and the rent, until such repair shall be
substantially completed, shall xxxxx in proportion to the area of the Demised
Premises which was damaged or unusable by Tenant for so long as the Demised
Premises, or each such portion thereof, is damaged or unusable, it being the
intent that such abatement shall not affect or reduce Landlord's rent insurance
coverage. Notwithstanding anything to the contrary herein, Landlord shall not be
obligated to repair or restore any personal property of Tenant or any fixtures
or Tenant installation not installed by and paid for by Landlord.
31.4 If Landlord repairs and restores the Demised Premises in
accordance with Section 31.3, such repairs and restorations shall be made with
all reasonable expedition. After any such fire or other casualty, Tenant shall
cooperate with Landlord's restoration by removing from the Demised Premises as
promptly as reasonably possible and to the extent reasonably necessary, all of
Tenant's and any Sublessee's salvageable inventory and movable equipment,
furniture, and other property. Tenant's liability for rent shall resume five (5)
business days after written notice from Landlord of Substantial Completion of
repairs to the Demised Premises.
31.5 If all or substantially all of the Demised Premises are
damaged or rendered unusable by fire or other casualty, or (whether or not the
Demised Premises are damaged in whole or in part) if the Building shall be
substantially damaged so that Landlord in its reasonable opinion, cannot rebuild
both the Demised Premises and the Building to their pre-existing condition
within one hundred eighty (180) days, then, in either of such events, either
Landlord or Tenant may elect to terminate this Lease by written notice to the
other, specifying a date for the expiration of the Lease, which date shall not
be more than one hundred eighty (180) days after such fire or other casualty,
and upon the date specified in such notice the term of this Lease shall expire
as fully and completely as if such date were the Expiration Date and Tenant
shall forthwith quit, surrender and vacate the Demised Premises without
prejudice however, to Landlord's rights and remedies against Tenant under the
Lease provisions in effect prior to such termination; and any rent owing shall
be paid up to such date and any payments of rent made by Tenant which were on
account of any period subsequent to such date shall be credited against amounts
owed by Tenant to Landlord or refunded to Tenant.
31.6 Notwithstanding anything to the contrary contained in this
Article or any Law, should the Demised Premises or the Building be damaged by
fire or other casualty as a result of the negligence of Tenant or any Sublessee
or any employee, Agent or Visitor of either, Tenant shall have no right to
terminate this Lease and there shall be no abatement of rent under this Article,
and Tenant shall be liable to Landlord for such damage, subject to the other
provisions hereof.
32. WAIVER OF SUBROGATION.
32.1 Notwithstanding any other provision herein, Landlord and
Tenant shall look first to any insurance in its favor before making any claim
against the other party for recovery for loss or damage resulting from fire or
other casualty, and to the extent that such insurance is in force and
collectible and to
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the extent permitted by Law, Landlord and Tenant each hereby releases and waives
all right of recovery against the other or any one claiming through or under
each of them by way of subrogation or otherwise. The foregoing release and
waiver shall be in force only if both Landlord and Tenant obtain their insurance
required hereunder and only if both of their insurance policies contain a clause
providing that such a release or waiver shall not invalidate the insurance. If,
and to the extent, that such waiver can be obtained only by the payment of
additional premiums, then the party benefitting from the waiver shall pay such
premium within ten (10) business days after written demand from the other party
or shall be deemed to have agreed that the party obtaining insurance coverage
shall be free of any further obligation under the provisions hereof with respect
to waiver of subrogation.
33. EMINENT DOMAIN.
33.1 If all or substantially all of the Demised Premises or the
Building or a substantial portion of the Land should be acquired or condemned by
eminent domain by any Governmental Authority, then Landlord or Tenant may
terminate this Lease as of the date when title vests pursuant to such taking. In
such event, the rent shall be apportioned as of said expiration date and any
rent paid for any period beyond said date and in excess of amounts owing by
Tenant to Landlord shall be repaid to Tenant.
33.2 In the event of a taking of less than all or substantially all
of the Demised Premises, Landlord shall have the right to equitably reduce the
Demised Premises, Tenant's Occupancy Percentage, the Minimum Rent and the
Allotted Parking, and this Lease shall continue in full force and effect.
Notwithstanding the foregoing, Tenant shall have the right to terminate this
Lease if the area of the Demised Premises shall not be reasonably sufficient for
Tenant to continue feasible operation of its business.
33.3 Landlord or Tenant may exercise its respective right(s) to
terminate this Lease under Section 33.1 or 33.2 by giving written notice to the
other within thirty (30) days after the date of the vesting of title in such
proceeding, specifying a date not more than fifteen (15) days after the giving
of such notice as the date for such termination.
33.4 Neither Tenant nor any Sublessee shall-have any claim in any
condemnation or eminent domain proceeding for the value of any unexpired term of
the Lease with respect to the Demised Premises or any portion thereof, and
Tenant hereby assigns to Landlord Tenant's entire interest in any such award.
Although Tenant shall not be entitled to any part of the award for such taking
or any payment in lieu thereof, Tenant (or any Sublessee) may file a separate
claim for any taking of fixtures and improvements owned by Tenant (or such
Sublessee) which have not become Landlord's property, and for moving expenses,
provided the same shall in no way affect or diminish Landlord's award.
34. DEFAULTS; EVENTS OF DEFAULT.
34.1 Tenant shall be in default under this Lease upon the
occurrence of any one or more of the following events (collectively, "DEFAULTS",
and individually, a "DEFAULT"):
(a) If the Tenant or any Sublessee or Assignee fails to timely
vacate the Demised Premises on the Expiration Date or earlier termination of the
Term hereof;
(b) If the Tenant is delinquent in the due and punctual
payment of all or any portion of Minimum Rent, Adjusted Minimum Rent, additional
rent or any other monies payable by Tenant hereunder more than twice in any
twelve-month period;
(c) If any execution, attachment or other action shall be
taken against Tenant or any of Tenant's property whereupon the Demised Premises
shall be taken, occupied or used by someone other than Tenant or any assignee or
Sublessee permitted in strict accordance with Article 16, including the storage
of any of Tenant's property on behalf of another person or entity; or
(d) If Tenant is delinquent in the performance of or
compliance with any of the other covenants, agreements or conditions contained
in this Lease, any other lease demising space in the Building to Tenant, or any
other written agreement between Landlord and Tenant pertaining to the Demised
Premises, the Building and/or the Real Estate.
34.2 Upon the occurrence of a Default, Landlord, at any time
thereafter, may give written notice to Tenant specifying the nature of such
Default. Tenant shall have five (5) business days from the receipt of said
notice (the "CURE PERIOD") to comply with or remedy any such Default, except in
the case of any Default presenting a clear arid present danger to life or
property, which Tenant shall cure immediately upon request of Landlord or
Managing Agent, written or otherwise. If such Default is not of
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an emergency nature, is other than due to the nonpayment of money, and shall be
of a nature that the same cannot be substantially cured or remedied within. said
Cure Period, Tenant shall promptly give Landlord written notice of such fact,
and Tenant shall diligently and in good faith proceed to remedy or cure such
Default within a reasonable time, but in no event in excess of thirty (30) days.
Neither the cost to Tenant of curing any Default nor Tenant's financial or other
inability to Cure any Default (for whatever reason) shall operate to extend any
Cure Period. Tenant's failure to remedy such Default within the applicable time
set forth in this Section shall be an "EVENT OF DEFAULT".
34.3 Tenant acknowledges that Landlord is obligated to make timely
payments on obligations arising out of its ownership, operation, arid financing
of the Real Estate. In the event that the payment of any sum required to be paid
by Tenant to Landlord under this Lease (including, without limiting the
generality of the foregoing, Minimum Rent, Adjusted Minimum Rent, additional
rent, payment made by Landlord under any provision of this Lease for which
Landlord is entitled to reimbursement by Tenant, or for construction or other
work performed by Landlord or its contractor specifically for Tenant) is not
received by Landlord in good funds within five (5) business days after the date
on which it is due and payable or should any check from Tenant be returned to
Landlord as uncollectible, then, notwithstanding any notice provision or Cure
Period, a delinquency service charge equal to four percent (4%) of the amount
overdue (the "SERVICE CHARGE") shall become immediately due and payable to
Landlord as liquidated damages for Tenant's failure to make prompt payment to
Landlord; Landlord and Tenant hereby agreeing that the actual damages' to
Landlord due to such late or non-payment exceed the interest cost of money but
are difficult to estimate. Such Service Charge shall become payable as
additional rent within five (5) business days after Tenant's receiving an
invoice therefor. Tenant shall also pay Landlord as additional RENT INTEREST
("INTEREST") at an annual rate equal to 4% in excess of the prime rate announced
from time-to-time by Citibank, NA or such other major commercial bank in the
United States designated by Landlord (but subject to any maximum interest
permitted by Law) on any amounts not received by Landlord from the date an which
they became due and payable. In the event of nonpayment of any Service Charge
and/or Interest provided for above, Landlord shall have, in addition to all
other rights and remedies, all the rights and remedies provided for herein and
by Law in the case of nonpayment of rent. Failure by Landlord or Managing Agent
to insist upon the strict performance by Tenant of Tenant's obligations to pay
any Service Charge or Interest shall not constitute a waiver by Landlord of its
rights to enforce the provisions of this Section in any instance thereafter
occurring. Neither the provisions of this Section nor Tenant's payment of any
Service Charge or Interest shall be construed in any way to extend any time
period provided for in this Lease or to limit Landlord's other remedies
hereunder. Tenant's obligation to pay any Service Charge or Interest as provided
in this Section shall continue beyond the expiration or sooner termination of
this Lease.
34.4 In addition to the provisions of Section 34.3, should Adjusted
Minimum Rent. be received by Landlord or Managing Agent later than the first day
of the month on which it is due twice or more in any twelve-month period,
Landlord may, in addition to all other nights and remedies provided herein and
by Law, require that Tenant increase the amount of the Security by an additional
amount equal to three (3) month's of the then applicable Adjusted Minimum Rent.
35. REMEDIES FOR EVENTS OF DEFAULT.
35.1 Upon the occurrence of any Event of Default hereunder,
Landlord may, in addition to all other rights and remedies provided herein or at
Law or in equity, exercise any or all of the following remedies:
(a) Landlord may give a written notice of termination upon
Tenant setting forth a date, no fewer than five (5) business days from the date
of the giving of such notice, terminating this Lease and/or Tenant's right to
use and occupy the Demised Premises. Upon the expiration of such period, this
Lease and the term hereof, or the right of Tenant or any Sublessee to use and
occupy the Demised Premises, as the case may be, shall terminate and expire as
fully and completely as if the day on which said notice of cancellation is to be
effective were the Expiration Date, and Tenant shall then peaceably quit and
surrender the Demised Premises to Landlord, but Tenant shall remain liable as
herein provided. Landlord may also, without further notice, re-enter the Demised
Premises and repossess same by summary proceedings or ejectment or otherwise
and/or may dispossess the Tenant and remove the Tenant and all other persons and
property from the Demised Premises and may have, hold, use and enjoy the Demised
Premises and the right to receive all rental income therefrom.
(b) Landlord may (1) declare all Adjusted Minimum Rent and all
other sums due and payable hereunder immediately due and payable; (2) re-let or
sublet the Demised Premises or any part or parts thereof, in the name of Tenant,
Landlord or otherwise, for a term or terms, which may at Landlord's option be
less than, equal to, or exceed the period which would otherwise have constituted
the balance of the term of this Lease, mid Landlord may grant concessions or
free rent, change the Base Tax Year and/or the Base Operating Year or charge
such higher or lower rental as may be reasonable under the circumstances; (3)
recover from Tenant any commission paid by Landlord to Broker on account of this
Lease for the current term; (4) collect rental payments directly from any
Sublessee, upon written notice to
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such Sublessee directing it to make such payment strictly to Landlord; (5)
cancel any option to renew, extend or cancel this Lease or expand or contract
the Demised Premises which Tenant may have; and/or (6) cancel any right of first
refusal or first offer held by Tenant; and/or (7) if such Event of Default
occurs during the Initial Term, cancel any unused Rental Credit and recover any
Construction Credit and/or any Rental Credit previously applied to rent payable
hereunder.
(c) Landlord may require Tenant or the legal representative(s)
of Tenant immediately to pay to Landlord a sum (the "ACCELERATED RENT") which,
at the time of the Event of Default, equals the aggregate Adjusted Minimum Rent
payable hereunder which would have become payable by Tenant hereunder through
the day previously set as the Expiration Date (conclusively presuming that
Adjusted Minimum Rent on account of increases in Taxes and Operating Costs
subsequent to the Event of Default and through the Expiration Date shall
increase at the average of -the rates of increase thereof previously experienced
by Landlord since the Commencement Date). Such Accelerated Rent shall be held by
Landlord and applied by Landlord on a monthly basis to any deficiency between
the rent or any other monies hereby-reserved and/or covenanted to be paid by
Tenant and the net amount (as determined below), if any, of the rents collected
on account of any re-letting or subletting of the Demised Premises for each
month of the period which would otherwise have constituted the balance of the
term of this Lease. The failure of Landlord to re-let or sublet the Demised
Premises or any part or parts thereof shall not release or affect Tenant's
obligations or liability hereunder. In. computing any such deficiencies, there
shall be added thereto such expenses as Landlord may reasonably incur in
connection with re-letting or subletting or attempting to relet or sublet the
Demised Premises, including but not limited to, legal expenses, attorney's fees,
brokerage fees, advertising expenses and expenses incurred in connection with
the marketing, showing, fix-up, cleaning, repair or maintenance of the Demised
Premises including those for preparation of the Demised Premises for re-letting
or subletting and the removal of Tenant's property, fixtures or other
improvements therefrom In connection with Landlord's preparation of the Demised
Premises for re-letting or subletting, Landlord may, at its option, make such
alterations, repairs, replacements, and/or decorations in the Demised Premises
as Landlord, in Landlord's reasonable discretion, considers advisable and
necessary for the purpose of re-letting or subletting the Demised Premises, and
the making of such alterations, repairs, replacements, and/or decorations shall
not operate or be construed to release Tenant from liability hereunder. Landlord
shall in no event be liable in anyway whatsoever for failure to re-let or sublet
the Demised Premises, or in the event that the Demised Premises are re-let or
sublet, for failure to collect the rent under such re-letting or subletting, and
in no event shall Tenant be entitled to receive any excess, if any, of such net
rents collected over the sums payable by Tenant to Landlord hereunder. If the
Demised Premises or any part thereof should be re-let or sublet in combination
with the other space, then proper apportionment on a square-foot basis shall be
made of the rent received from such re-letting and of the expenses of
re-letting.
35.2 As a material part of this Lease, Tenant hereby appoints
Landlord as Tenant's attorney-in-fact, which appointment shall be a special
appointment coupled with an interest and shall be irrevocable, so long as any
Event of Default has occurred (a) to enter into Subleases with any entity
whatsoever, including Landlord itself, upon any terms and conditions, including
at whatever rent Landlord may determine in its sole discretion, but which rent
shall be credited against amounts owed by Tenant to Landlord hereunder; or (b)
to utilize or occupy the Demised Premises or permit others to do so with or
without payment of rent, without the same constituting an eviction or partial
eviction or affecting Tenant's obligation to pay the Minimum Rent, Adjusted
Minimum Rent, additional rent or any other sums payable by Tenant to Landlord
hereunder.
35.3 In the event of a breach or threatened breach by Tenant of any
of the covenants or provisions hereof, Landlord shall have the right of
injunction and the right to invoke any remedy allowed at Law or in equity as if
re-entry, summary proceedings and other remedies were not provided for herein
35.4 Any suit or suits for the recovery of monies due Landlord
hereunder may be brought by Landlord from time to time at its election, and
nothing contained herein shall be deemed to require Landlord to postpone suit
until the date when the term of this Lease other-wise would have expired.
Mention in this Lease of any particular remedy shall not preclude Landlord from
any other remedy, at Law or in equity. Nothing herein contained shall be
construed to limit or preclude recovery by Landlord against Tenant for any sums
or damages to which, in addition to the sums particularly provided above,
Landlord may lawfully be entitled by reason of any Default hereunder on the part
of Tenant.
35.5 Tenant, for Tenant, and on behalf of any and all persons
claiming through or under Tenant, including but not limited to Sublessees,
creditors, trustees, security holders and representatives of all kinds, does
hereby waive and surrender all right and privilege which they or any of them
might have under or by reason of any present or future Law, to redeem the
Demised Premises or to have a continuance of this Lease for the term hereby
demised after being dispossessed or ejected therefrom by process of law or under
the terms of this Lease or after the termination of this Lease as herein
provided.
35.6 CONFESSION OF JUDGMENT FOR POSSESSION. UPON THE OCCURRENCE OF
AN EVENT OF DEFAULT OR UPON THE EXPIRATION OF THE TERM OF THIS LEASE,
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FOR THE PURPOSE OF OBTAINING POSSESSION OF THE DEMISED PREMISES, TENANT HEREBY
AUTHORIZES AND EMPOWERS THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF RECORD
IN THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE, AS ATTORNEY FOR TENANT AND ALL
PERSONS CLAIMING UNDER OR THROUGH TENANT, TO APPEAR FOR AND CONFESS JUDGMENT
AGAINST TENANT FOR POSSESSION OF THE DEMISED PREMISES, AND AGAINST ALL PERSONS
CLAIMING UNDER OR THROUGH TENANT, IN FAVOR OF LANDLORD, FOR RE COVERY BY
LANDLORD OF POSSESSION THERE OF, FOR WHICH THIS AGREE EMENT OR A COPY HERE, OF
VERIFIED BY AFFIDAVIT, SHALL BE A SUFFICIENT WARRANT; AND THERE, UPON A WRIT OF
POSSESSION MAY IMMEDIATELY ISSUE FOR POSSESSION OF THE DEMISED PREMISES, WITHOUT
ANY PRIOR WRIT OR PROCEEDING WHATSOEVER AND WITHOUT ANY STAY OF EXECUTION, IF
FOR ANY REASON AFTER SUCH ACTION HAS BEEN COMMENCED THE SAME SHALL BE TERMINATED
AND THE POSSESSION OF THE DEMISED PREMISES REMAINS IN OR IS RESTORED TO TENANT,
LANDLORD SHALL HAVE THE RIGHT UPON THE OCCURRENCE OF ANY SUBSEQUENT EVENT OF
DEFAULT TO CONFESS JUDGMENT IN ONE OR MORE FURTHER ACTIONS IN THE MANNER AND
FORM SET FORTH ABOVE TO RECOVER POSSESSION OF SAID DEMISED PREMISES FOR SUCH
SUBSEQUENT DEFAULT. TENANT WAIVES ALL ERRORS IN CONNECTION WITH ANY SUCH
CONFESSION OF JUDGMENT. NO SUCH TERMINATION OF THIS LEASE, NOR TAKING, NOR
RECOVERING POSSESSION OF THE DEMISED PREMISES SHALL DEPRIVE LANDLORD OF ANY
REMEDIES OR ACTION AGAINST TENANT FOR MINIMUM RENT, ADDITIONAL RENT OR FOR OTHER
SUMS DUE HERE UNDER OR FOR DAMAGES DUE OR TO BECOME DUE FOR THE BREACH OF ANY
CONDITION OR COVENANT HEREIN CONTAINED, NOR SHALL THE BRINGING OF ANY SUCH
ACTION FOR RENT AND/OR OTHER SUMS DUE HERE, UNDER, OR BREACH OF COVENANT OR
CONDITION NOR THE RESORT TO ANY OTHER REMEDY HERE IN PROVIDED FOR THE RECOVERY
OF RENT AND/OR OTHER SUMS DUE HEREUNDER OR DAMAGES FOR SUCH BREACH BE, CONSTRUED
AS A WAIVER OF THE RIGHT TO INSIST UPON THE FORFEITURE AND TO OBTAIN POSSESSION
IN THE MANNER HERE IN PROVIDED.
35.7 CONFESSION OF JUDGMENT FOR SUMS DUE HEREUNDER. AFTER AN EVENT
OF DEFAULT, TENANT, HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS THE PROTHONOTARY
OR ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR TENANT IN ANY SUCH COURT AT
ANY TIME THEREAFTER TO WAIVE THE ISSUANCE AND SERVICE OF PROCESS AND TO CONFESS
AND ENTER JUDGMENT AGAINST TENANT AND IN FAVOR OF LANDLORD FOR SUCH AGGREGATE
AMOUNT OF MINIMUM RENT, ADDITIONAL RENT AND OTHER SUMS DUE TO LANDLORD AS IS
UNPAID UNDER THIS LEASE (INCLUDING THE ACCELERATED RENT COMPONENT) TOGETHER WITH
COSTS AND ATTORNEYS FEES EQUAL TO THE LESSER OF FIVE THOUSAND DOLLARS ($5,000)
OR FIVE PERCENT (5%) OF SUCH UNPAID AMOUNTS. TENANT HEREBY RATIFIES AND CONFIRMS
ALL THAT THE ATTORNEY MAY DO BY VIRTUE HEREOF AND WAIVES AND RELEASES ALL ERRORS
WHICH MAY INTERVENE IN SUCH PROCEEDINGS. IF A COPY OF THIS LEASE SHALL BE
PRODUCED IN ANY PROCEEDINGS BROUGHT UPON THE WARRANT OF ATTORNEY CONTAINED IN
THIS SECTION, SUCH COPY SHALL BE CONCLUSIVE EVIDENCE OF SUCH PROTHONOTARY'S
AND/OR ATTORNEY'S AUTHORITY TO TAKE THE ACTION SPECIFIED HERE IN AND IT SHALL
NOT BE NECESSARY TO PRODUCE THE ORIGINAL INSTRUMENT. THE AUTHORITY GRANTED
HEREIN TO CONFESS JUDGMENT AGAINST TENANT SHALL NOT BE EXHAUSTED BY ANY EXERCISE
THEREOF, BUT MAY BE EXERCISED FROM TIME TO TIME AS OFTEN AS THERE IS OCCASION
THEREFOR UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS LEASE.
36. LANDLORD'S PERFORMANCE EXPENDITURES.
36.1 If an Event of Default shall occur under this Lease, Landlord,
without thereby waiving such Event of Default, may (but shall not be obligated
to) immediately or at any time thereafter, without further notice, perform the
same for the account and at the expense of Tenant.
36.2 Tenant shall also promptly reimburse Landlord for all costs,
expenses and disbursements of every kind and nature whatsoever, including, but
not limited to, attorney's fees, involved in (a) instituting, prosecuting or
defending any action or proceeding against Tenant in which Tenant fails to
prevail; (b) collecting or endeavoring to collect the Minimum Rent, Adjusted
Minimum Rent or additional rent or any part thereof or any other money payable.
by Tenant hereunder; or (c) enforcing or endeavoring to enforce any rights of
Landlord against Tenant, under or in connection with this Lease or pursuant to
Law, including any such cost, expense and disbursement involved in instituting
and prosecuting summary proceedings. Any bills for any property, material, labor
or services provided, furnished, or rendered by Landlord pursuant to this
Article shall be obligations of Tenant.
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36.3 The foregoing expenses incurred by Landlord shall be deemed to
be additional rent hereunder and shall be paid by Tenant to Landlord within
fifteen (15) business days of rendition of any xxxx or statement to Tenant
therefor. The obligations of Tenant to pay such sums to Landlord shall survive
the expiration or sooner termination of this Lease, and such sums shall be
thereafter recoverable by Landlord or its agent or representative.
37 ACCORD AND SATISFACTION.
37.1 No payment by Tenant or receipt by Landlord or its employee or
agent of a lesser amount than the rent and additional charges payable hereunder
shall be deemed to be other than a payment on account to be credited against
monies owed Landlord hereunder, in such order as Landlord may reasonably
determine, nor shall any restrictive endorsement, statement or name on any check
or any letter accompanying any check or payment delivered to Landlord or its
employee or agent be deemed, declared or interpreted an accord and satisfaction;
and Landlord or its agent may accept and deposit such check or payment without
notice to Tenant, without same operating as a satisfaction or an acceptance of
satisfaction by Landlord or its employee or agent, and without prejudice to
Landlord's right to recover the balance of any monies due hereunder, or to
pursue any other remedy provided herein or by Law.
38. EFFECT OF WAIVERS.
38.1 No failure by Landlord to insist upon the strict performance
of any covenant, agreement, term or condition of this Lease, or to exercise any
right or remedy permitted hereunder, and no acceptance of full or partial rent
during the continuance of any such Default, shall constitute a waiver of any
such Default or of such covenant, agreement, term or condition. No consent or
waiver, express or implied, by Landlord or its employee or agent to or of any
Default and no reliance by Tenant thereon, shall be construed as a consent or
waiver to or of any other Default of the same or any other covenant, condition
or duty, unless in writing signed by Landlord.
39. BANKRUPTCY; INSOLVENCY.
39.1 Notwithstanding anything herein to the contrary, this Lease
may be canceled by Landlord by the sending of a written five (5) day notice of
cancellation to Tenant within a reasonable time after the happening of any one
or more of the following events: (1) the appointment of a trustee, custodian,
liquidator, receiver or other similar official to take possession of all or
substantially all of the assets of Tenant or of the Demised Premises; (2) the
making by Tenant of an assignment or any other arrangement for the benefit of
creditors pursuant to any Law; (3) the filing by Tenant or the public
announcement of the intent to file, of a voluntary petition pursuant to 11
U.S.C. 101 et seq. and the Rules and Official Forms thereunder or any such
successor or substitute legislation or rule thereto, or any similar federal or
state law collectively (the "BANKRUPTCY CODE") seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief thereunder; (4) the adjudication of Tenant as a bankrupt or insolvent;
(5) the failure of Tenant or any guarantor of the Tenant's obligations hereunder
to pay debts generally as they become due. Landlord's statutory liens for rent
shall be honored by Tenant and any trustee, representative or creditor of
Tenant.
39.2 If Landlord shall have no right to terminate this Lease by
reason of the applicable provisions of the Bankruptcy Code, Tenant or its
trustee or other representative shall promptly provide adequate protection to
Landlord pursuant to the provisions of the Bankruptcy Code.
(a) TENANT OR ITS TRUSTEE SHALL PROMPTLY ACCEPTOR REJECT
THIS LEASE. ANY LEASE NOT ASSUMED OR REJECTED WITHIN SIXTY (60) DAYS AFTER AN
ORDER FOR RELIEF IS ENTERED SHALL BE DEEMED REJECTED, AND THE TRUSTEE SHALL
IMMEDIATELY SURRENDER THE DEMISED PREMISES TO LANDLORD.
(b) If Tenant shall not be in liquidation, Tenant or its
trustee shall assume or reject the Lease as soon as such decision can reasonably
be made, and shall compensate Landlord for the use and occupancy of the Demised
Premises monthly in advance until such decision is made.
(c) This Lease may not be assumed, unless at the time of
such assumption, the trustee or assignee shall promptly (1) cure or provide
adequate assurance that it will promptly cure any Default(s) under this Lease;
(2) compensate or provide adequate assurance that it shall compensate Landlord
for any actual or pecuniary loss to Landlord resulting from such Default(s); (3)
provide adequate assurance reasonably satisfactory to Landlord of future
performance under this Lease; and (4) compensate Landlord for all post-filing
use and occupancy of the Demised Premises, and shall timely perform all of
Tenant's other obligations hereunder.
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39.3 If this Lease is assigned to any person or entity pursuant to
the provisions of the Bankruptcy Code, Tenant or its legal representative shall
give prompt written notice thereof to Landlord along with adequate assurance of
future performance by the assignee. Any and all monies or other consideration to
be delivered in connection with the assignment shall be delivered to Landlord,
and shall be and remain the exclusive property of Landlord to be applied to
post-filing use and occupancy payments to Landlord or other monies owed by
Tenant to Landlord and shall not constitute property of Tenant or of the estate
of Tenant. Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code shall be deemed to have assumed all of the
obligations arising under this Lease on and after the date of such assignment,
and shall upon demand execute and deliver to Landlord an instrument confirming
that assumption.
40. STATUTORY WAIVER; WAIVER OF TRIAL BY JURY.
40.1 Tenant acknowledges that its possession, use and peaceful
enjoyment of the Demised Promises is conditioned upon Tenant's timely performing
all of its obligations hereunder, including but not limited to the payment of
all Minimum Rent, as set forth in Section 5.3, in consideration thereof, Tenant
hereby waives any right to remove any action for non-payment of Minimum Rent
brought by Landlord or its Managing Agent to another court. Any other matter
mentioned in any such action brought by Landlord under any statute shall not
waive Landlord's or Tenant's right to bring a separate action in the proper
court for monies due and owing either party hereunder; nor shall Landlord be
prohibited from instituting a dispossess action for nonpayment of monies other
than Minimum Rent.
40.2 To the extent such waiver is permitted by Law, the parties
hereto waive trial by jury in any action or proceeding brought in connection
with this Lease or the Real Estate or any portion thereof.
41. SUBORDINATION OF LEASE; ESTOPPEL CERTIFICATES.
41.1 This Lease is subject and subordinate to all ground or
underlying leases and to all deeds of trust or mortgages which may now or
hereafter affect the Real Estate, including all renewals, modifications,
consolidations, replacements and extensions of any such underlying leases, deeds
of trust and mortgages. This clause shall be self-operative and no further
instrument of subordination shall be required by any Land Lessor or by any
mortgagee in order to effectuate such subordination. Notwithstanding the
foregoing, Tenant shall execute and promptly deliver to Landlord or its agent
within fifteen (15) business days any instrument that Landlord or its agent, as
the case may be, may reasonably request confirming the subordination of this
Lease.
41.2 If any lender shall request reasonable modifications of this
Lease as a condition of Landlord's obtaining any financing or refinancing of the
Building, the Real Estate and/or any interest of Landlord in either, Tenant
covenants not to unreasonably withhold or delay its agreement to such
modification provided that such modification does not adversely affect the
obligations or rights of Tenant under this Lease.
41.3 Tenant agrees to give any mortgagee, deed of trust holder, or
Land Lessor by certified mail, a copy of any notice and a right to cure any
default of Landlord, provided that, prior to such notice, Tenant has been
notified in writing (by way of notice of assignment of rents and leases, or
otherwise) of the address of such mortgagee, deed of trust holder, or Land
Lessor. Tenant further agrees that so long as any mortgagee, deed of trust
holder or Land Lessor has commenced and is diligently pursuing the
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remedies necessary to cure such default (including but not limited to
commencement of foreclosure proceedings, if necessary to effect such cure),
Tenant shall not seek to terminate this Lease.
41.4 Tenant agrees at any time and from time to time, upon not less
than fifteen (15) days' prior written request from Landlord or Managing Agent,
that Tenant shall execute, acknowledge and deliver to Landlord, or its designee,
a statement in writing certifying, to the extent it is true, (a) that this Lease
is unmodified and is in full force and effect (or if there have been
modifications, the specifics thereof and that the Lease is in full force and
effect as modified); (b) the dates to which the Minimum Rent (or Adjusted
Minimum Rent) and additional rent have been paid; the amount of all rents paid
in advance, if any; and any other information that Landlord or Managing Agent
shall reasonably request. Tenant further agrees to furnish Landlord or Managing
Agent upon written request at any time such information and assurances as
Landlord or Managing Agent, as the case may be, may reasonably request that
Tenant has not breached any of the provisions of this Lease. It is intended
hereby that any such statement delivered pursuant to this Article may be relied
upon by a prospective purchaser or mortgagee of Landlord's interest, or any
assignee of any mortgage upon Landlord's interests in the Real Estate. The
foregoing obligation shall be deemed a material obligation of Tenant. Tenant's
failure to timely deliver such statement shall be conclusive evidence (x) that
this Lease is in full force and effect, without modification except as may be
represented by Landlord; (y) that there are no uncured defaults in Landlord's
performance and Tenant has no right of offset, counterclaim, defenses or
deduction against the Minimum Rent, Adjusted Minimum Rent, additional rent or
against Landlord; and (z) that no more than one month's installment of Minimum
Rent or Adjusted Minimum Rent has been paid in advance.
41.5 Tenant agrees at any time and from time to time, upon not less
than ten (10) days' prior written request, that Tenant shall demonstrate to
Landlord Tenant's financial status and the name, relationship to Tenant, and
financial status of any Sublessee by promptly submitting to Landlord or Managing
Agent all information that Landlord or Managing Agent may reasonably request in
connection with a request of a lender or purchaser of the Real Estate,
including, but not limited to, a current balance sheet and statements of income
or profit and loss, all prepared in accordance with generally accepted
accounting principles, consistently applied. The foregoing obligation shall be
deemed a material obligation of Tenant.
41.6 Landlord shall use its reasonable efforts to request from the
holder of the existing mortgage and any future mortgage covering the Real
Estate, a subordination and non-disturbance agreement providing in essence that
Tenant's possession of and rights in the Demised Premises and under this Lease
shall remain undisturbed, so long as an Event of Default has not occurred under
this Lease and provided that Tenant agrees in said instrument to attorn to such
mortgagee as its landlord under this Lease. A copy of the form subordination and
non-disturbance agreement of the holder of the existing mortgage is attached
hereto as EXHIBIT F. Notwithstanding the foregoing, Landlord shall have no
responsibility to Tenant if a fully executed and acknowledged original of such
nondisturbance and attornment agreement is not delivered to Tenant, and this
Lease is and shall at all times remain subject and subordinate to such mortgage.
All costs associated with obtaining a subordination and non-disturbance
agreement, including fees and costs of the mortgagee, service and fees and costs
of the Landlord, including in-house and outside counsel of both the mortgagee
and Landlord, if any, and any other costs associated with this Section shall be
borne solely by the Tenant and shall be paid in advance if so requested.
42. PARTNERSHIP TENANT.
42.1 If Tenant is a partnership, joint venture, proprietorship or
unincorporated association (or is comprised of two (2) or more persons,
individually and as co-partners, co-proprietors or joint venturers) or if
Tenant's interest in this Lease shall be assigned to a partnership, joint
venture, proprietorship or unincorporated association (or to two (2) or more
persons, individually and as co-partners, co-proprietors or joint venturers)
pursuant to Article 16 hereof or otherwise (any such partnership joint venture,
proprietorship or unincorporated association being referred to herein as a
"PARTNERSHIP TENANT", and any partner, joint venturer or other member thereof
being referred herein to as a "PARTNER"), the following provisions of this
Section shall apply to such Partnership Tenant: (a) the liability of each of the
Partners shall be joint and several, individually and as a Partner; and (b) each
of the Partners, whether or not such person shall be one of the persons
comprising Tenant at the time in question, hereby consents in advance to, and
agrees to be bound by, any written instrument which may hereafter be executed by
the Partnership Tenant or by any of the Partners, changing, modifying or
discharging this Lease, in whole or in part, or surrendering all or any part of
the Demised Premises to Landlord, and by any notices, demands, requests or other
communications which may hereafter be given, by the Partnership Tenant or by any
of the Partners; (c) any bills, statements, notices, demands, requests or other
communications given or rendered to the Partnership Tenant or to any of the
Partners shall be deemed given or rendered to the Partnership Tenant and to all
such Partners and shall be binding upon the Partnership Tenant and all Partners;
(d) if the Partnership Tenant shall admit new Partners all of such new Partners
shall, by their admission to the Partnership Tenant, be deemed to have assumed
performance of all of the terms, covenants and conditions of this Lease on
Tenant's part to be observed and performed, and shall be liable for such
performance,
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together with all other Partners, jointly or severally, individually and as a
Partner; and (e) the Partnership Tenant shall give prompt notice to Landlord of
the admission of any such new Partners, and upon demand of Landlord, shall cause
each such new Partner to execute and deliver to Landlord an agreement in form
satisfactory to Landlord, wherein each such new Partner or joint venturer shall
so assume performance of all of the terms, covenants and conditions of this
Lease on Tenant's part to be observed and performed (but neither Landlord's
failure to request any such agreement nor the failure of any such new Partner to
execute or deliver any such agreement to Landlord shall vitiate the provisions
of subsection (d) of this Section).
43. PARTNERSHIP/PROFESSIONAL CORPORATION TENANT.
43.1 If Tenant is a partnership or a professional corporation, it
represents and warrants that the list names and addresses of the partners and/or
stockholders which was produced to Landlord is complete and accurate. This Lease
shall inure to the benefit of, and be binding upon the Tenant as now constituted
or as it may be constituted hereafter by changes in its equity ownership (but
subject to Article 16) whether or not Tenant is known by its current name or any
other name.
43.2 If Tenant is a partnership or a professional corporation,
Tenant shall give Landlord or its Managing Agent prompt written notice of any
change in the partners and/or stockholders of Tenant.
43.3 Throughout the term of this Lease, Tenant shall maintain its
good standing in its organizational jurisdiction and in the Commonwealth of
Pennsylvania.
44. CORPORATE/PARTNERSHIP AUTHORITY.
44.1 Each of the undersigned represents that the person executing
and delivering this Lease has been duly authorized to enter into this Lease and
that the execution and delivery of this Lease does not and shall not violate any
provision of any by-law, agreement, order, judgment, governmental regulation or
any other obligation to which that party is subject.
44.2 Upon the request of Landlord or Managing Agent, Tenant shall
promptly deliver an affidavit or certification by its secretary, assistant
secretary or other appropriate person to the above effect.
45. MANAGING AGENT.
45.1 Landlord reserves the right at any time to delete all
references in this Lease to "Managing Agent" or to change the person or entity
acting as Managing Agent by giving notice of the exercise of such right to
Tenant and to Managing Agent. Such notice shall become effective five (5)
business days after sending as provided in Article 47, or such later time as may
be stated in such notice.
45.2 Managing Agent reserves the right at any time to delete all
references in this Lease to "Managing Agent" by giving notice of the exercise of
such right to Tenant and to Landlord. Such notice shall become effective five
(5) business days after sending as provided in Article 47, or such later time as
may be stated in such notice.
45.3 Nothing contained in this Article nor any notices pursuant to
this Article shall in any way modify or amend any other written agreement to
which Landlord and Managing Agent are parties.
46. BROKER.
46.1 Tenant represents that no real estate broker other than the
Broker(s) (if any) listed under Section 1.1(r) is responsible for bringing
about, or negotiating, this Lease; and Tenant has not dealt with any other
broker, agent, salesperson, leasing consultant, or similar person in connection
with the Demised Promises.
46.2 In accordance with the foregoing representation, Tenant agrees
to defend, indemnify and hold harmless the Landlord, its affiliates and/or
subsidiaries, partners and officers from any legal action, expense or liability
(including attorney's fees) arising out of any claim for commission by any
person other than the Broker claiming or alleging to have acted on behalf of or
to have dealt with Tenant.
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46.3 In accordance with the foregoing representation, Landlord
agrees to defend, indemnify and hold harmless the Tenant, its affiliates and/or
subsidiaries, partners and officers from any legal action, expense or liability
(including attorney's fees) arising out of any claim for commission by any
person other than the Broker claiming or alleging to have acted on behalf of or
to have dealt with Landlord.
47. NOTICES.
47.1 All notices, which may or are required to be given by either
party hereunder to the other, shall be in writing.
47.2 All notices by Landlord to Tenant shall be deemed properly
given only if sent by Landlord or its Managing Agent and mailed by registered or
certified mail, return receipt requested, postage prepaid, or by reliable,
independent courier, with guaranteed next-business-day delivery, addressed to
Tenant at the address set forth in Article 1 prior to the Commencement Date, and
at the Demised Promises subsequent to the Commencement Date, or to such other
address as Tenant may from time to time designate by written notice to Landlord.
47.3 All notices by Tenant to Landlord shall be deemed properly
given only if sent by registered or certified mail, return receipt requested,
postage prepaid, or by reliable, independent courier with guaranteed
next-business-day delivery, addressed to Landlord at the address set forth in
Article 1 hereof, with a copy to:
Xxxx Xxxxxxx Xxxx, Esq.
General Counsel
Xxxx & Xxxxxxxxx, LLC
Park Avenue at Xxxxxx County
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxx, Xxx Xxxxxx 00000-0000
AND, AT THE PRIOR WRITTEN REQUEST OF LANDLORD OR MANAGING AGENT TO SUCH OTHER
PERSONS AND/OR ADDRESSES AS LANDLORD OR ITS MANAGING AGENT MAY FRORN TIME TO
TIME DESIGNATE BY WRITTEN NOTICE TO TENANT.
47.4 All notices by Landlord to Tenant shall be deemed properly
given only if sent by registered or certified mail, return receipt requested,
postage prepaid, or by reliable, independent courier with guaranteed
next-business-day delivery, addressed to Tenant at the address set forth in
Article 1 hereof, with a copy to:
Xxxxxx Xxxxx, Esq.,
Xxxxxxx Xxxxxx Gold & Xxxxxx
0000 Xxxx XxXxxx Xxxx
Xxxxx, XX 00000
AND, AT THE PRIOR WRITTEN REQUEST OF TENANT SUCH OTHER PERSONS AND/OR ADDRESSES
AS TENANT MAY FROM TIME TO TIME DESIGNATE BY WRITTEN NOTICE TO LANDLORD.
47.4 NOTWITHSTANDING THE OTHER PROVISIONS OF THIS ARTICLE, ANY
WRITTEN NOTICE UNDER THIS LEASE MAY BE PERSONALLY SERVED UPON AN OFFICER OR
PARTNER OF LANDLORD OR TENANT, IN WHICH CASE SUCH NOTICE SHALL BE DEEMED GIVEN
WHEN DELIVERED AND RECEIPTED.
48. INTERPRETATION.
48.1 If any of the terms or provisions of this Lease, or the
application thereof to any party or circumstance, shall to any extent be invalid
or unenforceable, the remainder of this
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Lease, or the application of such term or provision to parties or circumstances
other than to those as to whom or to which it is held invalid or unenforceable,
shall not be affected thereby. If any time period stated herein shall be in
contravention of any Law, such time period shall be modified to be that time
period permitted by such Law which is nearest to the time period stated herein.
Each term and provision of this Lease shall be interpreted so that it is valid
and enforceable to the fullest extent permitted by Law, in order to reflect the
agreement of tile parties as expressed herein.
48.2 The term "this Lease" shall include all the exhibits and
written amendments hereto or thereto. The terms "herein", "hereunder", "hereof',
"herewith", and "hereto" shall refer to this Lease.
48.3 Time is of the essence with respect to the observance and
performance of every provision hereof to be observed and performed by Tenant.
48.4 As a material inducement to Landlord to enter into this Lease,
Tenant agrees that this Lease shall be governed by and construed in accordance
with the Laws of and enforced only in the courts of the Commonwealth of
Pennsylvania. Except as otherwise specifically provided herein, Tenant
irrevocably appoints the Secretary of State of Pennsylvania as Tenant's agent
for service of process related to this Lease, should Tenant no longer be in
occupancy of the Demised Premises; and neither Tenant's failure to qualify to do
business in the Commonwealth of Pennsylvania nor Tenant's failure to maintain
such qualification shall affect the foregoing appointment. The foregoing
appointment shall be a special power coupled with an interest and shall be
irrevocable. Tenant hereby irrevocably submits itself to the jurisdiction of the
courts of the Commonwealth of Pennsylvania and to the jurisdiction of the United
States District Court for the Eastern District of Pennsylvania for the purposes
of any suit, action or other proceeding brought by Landlord arising out of or
based upon this Lease. Tenant hereby waives and agrees not to assert as a
defense or otherwise in any such suit, action or proceeding any claim: (a) that
Tenant is not subject personally to the jurisdiction of the above-named courts;
(b) that its property is exempt or inullune from attachment or execution; (c)
that the suit, action or proceeding is brought in an inconvenient forum; (d)
that the venue of the suit, action or proceeding is improper; or (e), subject to
the subject matter jurisdiction of such court, that this Lease may not be
enforced in or by such court.
48.5 Tenant acknowledges that this Lease represents a written
mernorial of the terms negotiated by Landlord and Tenant, and Landlord and
Tenant agree that this Lease shall be given a fair and reasonable construction
in accordance with the parties' intent as expressed herein, without regard to
any presumption or other rule requiring construction against the party electing
to cause this Lease to be drafted or prepared, Text deleted from a prior draft
of this Lease shall not be admissible in an action or proceeding relating to the
Lease for the purpose of altering or limiting the meaning or effect of the
Lease.
48.6 The Article titles or content organization of this Lease exist
only as a matter of reference or convenience and in no way define, limit, extend
or describe the scope of this Lease or the intent of any of the provisions
hereof.
48.7 Tenant acknowledges and agrees that it has had the assistance
of independent counsel in the review, negotiation and execution of this Lease
and has received specific legal advice with respect to the rights it has granted
Landlord under the Confessions of Judgment set forth in Sections 35.7 and 35.8
hereof.
48.8 Neither this Lease nor any memorandum hereof shall be recorded
by Tenant. Any violation of this provision shall be deemed an Event of Default
hereunder.
48.9 Any claim, demand, right or defense by Tenant that arises out
of this Lease, or the negotiations that preceded this Lease, shall be barred
unless Tenant commences an action thereon, or interposes a defense by reason
thereof, within one (1) year after the date of the inaction, omission, event or
action that gave rise to such claim, demand, right or defense. Tenant
acknowledges and understands, after having consulted with its legal counsel,
that the purpose of this Section is to shorten the period within which Tenant
would otherwise have to raise such claims, demands, rights or defenses under
applicable Laws.
48.10 Upon the occurrence of an Event of Default hereunder, Tenant
hereby unconditionally appoints Landlord as Tenant's duly authorized agent and
attorney-in-fact and delegates to Landlord the unqualified power of attorney to
execute such instruments in the name of Tenant and undertake such measures on
behalf of Tenant as Landlord may reasonably determine. The foregoing appointment
shall be a special power of attorney coupled with an interest and shall be
irrevocable.
48.11 In any and all cases where Landlord's consent or approval is
required under this Lease, Tenant shall upon Landlord's demand reimburse
Landlord, as additional rent, for all costs and expenses,
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including but not limited to, architectural, engineering and legal fees, which
Landlord incurs in determining whether to grant its consent or approval.
48.12 Tenant shall pay all legal fees and expenses incurred by
Landlord (i) in interpreting, enforcing or modifying the terms of the Lease,
(ii) in commencing and prosecuting a suit for the recovery of the Demised
Premises, damages or any amounts owed to Landlord, (iii) in commencing and
prosecuting a declaratory action, (iv) in defending an action or counterclaim
brought by Tenant and (v) in preparing for or appearing in an arbitration,
mediation or other nonjudicial proceeding.
49. NO OFFER, AGREEMENT OR REPRESENTATIONS.
49.1 No broker or agent nor any salesperson or employee of either
has authority to make or agree to make a lease on behalf of the Landlord named
herein or any other agreement or undertaking in connection herewith, including,
but not limited to the modification, amendment of or cancellation of a lease.
49.2 TENANT SPECIFICALLY ACKNOWLEDGES THAT: THE MAILING OR DELIVERY
OF THIS DOCUMENT OR ANY DRAFT OF THIS DOCUMENT BY LANDLORD OR ITS AGENT TO
TENANT, ITS AGENT OR ATTORNEY SHALL NOT BE DEEMED AN OFFER BY THE LANDLORD TO
LEASE THE DEMISED PREMISES ON THE TERMS SET FORTH IN SUCH DRAFT, THAT SUCH
DOCUMENT OR DRAFT MAY BE WITHDRAWN OR MODIFIED BY LANDLORD OR ITS AGENT AT ANY
TIME AND FOR ANY REASON, AND THAT THIS DOCUMENT SHALL NOT BE EFFECTIVE, NOR
SHALL TENANT HAVE ANY RIGHTS WITH RESPECT HERETO WHATSOEVER, UNLESS AND UNTIL
LANDLORD SHALL EXECUTE AND ACCEPT THIS DOCUMENT.
49.3 All prior undertakings and agreements between Landlord and
Tenant are merged in this Lease and it completely expresses their agreement with
respect to the subject matter hereof, This Lease has been entered into after
full investigation, neither party relying upon any statement or assumption not
completely set forth herein. No representations or promises shall be binding on
the parties hereto except those representations and promises contained in a
fully-executed copy of this document or in some future writing signed by
Landlord and Tenant.
50. APPLICABILITY TO HEIRS AND ASSIGNS.
50.1 The provisions of this Lease shall apply to, bind and inure to
the benefit of Landlord and Tenant, and their respective heirs, legal
representatives, trustees, successors and assigns, subject to the constraints on
alienation and limits on liability contained herein.
51. RENEWAL OPTION.
51.1 Subject to the provisions of Section 5l.2 below, Tenant shall
have the option to renew this Lease for one Renewal Term as set forth in Section
1.1(t) (the "RENEWAL OPTION"), which Renewal Term shall commence upon the
expiration of the Initial Term. Subject to the determination of Minimum Rent for
the Renewal Term, as defined and as set forth below, the terms, covenants and
conditions during the Initial Term, including but not limited to the definitions
of the Base Tax Year and Base Operating Year as set forth in Article 1 hereof,
shall be projected and carried over into each subsequent renewal term (a
"RENEWAL TERM"), except as specifically set forth hereinafter to the contrary.
51.2 Tenant's Renewal Option, as provided in Sections 1.1 and 51.1
above, shall be strictly conditioned upon and subject to the following, each of
which shall be considered material hereto:
(a) Tenant shall notify Landlord in writing ("TENANT'S
RENEWAL NOTICE") of Tenant's exercise of its option to renew this Lease at least
twelve (12) months but not more than fifteen (15) months prior to the expiration
of the Initial Term;
(b) At the time Landlord receives Tenant's Renewal Notice
as provided in Section 51.2 (a) above, and at the expiration of the Initial
Term, there shall not be existing an occurrence of an Event of Default under the
terms or provisions of this Lease, and the Tenant named in Section 1.1 hereof
shall be in occupancy of the entire Demised Premises. The conditions contained
in this Section 51.2(b)
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may be waived by Landlord at its sole discretion and may not be used by Tenant
as a means to negate the effectiveness of Tenant's exercise of this option to
renew;
(c) Tenant shall have no further renewal option other
than the option to extend for the Renewal Term as set forth in Section 1.1t);
(d) The Renewal Option shall be deemed personal to the
Tenant named on the first page of this Lease and may not be assigned or assumed
except only by a corporation to whom this Lease is assigned pursuant to Section
16.18 of this Lease;
(e) Landlord shall have no obligation to do any work or
perform any special services for any Renewal Term with respect to the Demised
Premises or the remainder of the Real Estate, which Tenant agrees to accept in
their then "as is" condition;
(f) At the request of either party, Landlord and Tenant
shall promptly execute and return to the other party a written amendment to this
Lease memorializing the commencement, Minimum Rent payable, and Expiration Date
of the Renewal Term; and
(g) No later than thirty (30) days prior to the
commencement of the Renewal Term, Tenant shall deposit with Landlord such
additional sums as may be required to increase any Security then held by
Landlord proportionate to the increase in the Minimum Rent during that Renewal
Term.
51.3
(a) Landlord shall notify Tenant ("LANDLORD'S DETERMINATION
NOTICE") of Landlord's determination of the Market Rent (as hereinafter defined)
within thirty (30) days after Landlord's receipt of Tenant's Renewal Notice. If
Tenant disagrees with Landlord's determination of Market Rent, Tenant shall
notify Landlord ("TENANT'S NOTICE OF DISAGREEMENT") within fifteen (15) days of
receipt of Landlord's Determination Notice. Time shall be of the essence with
respect to Tenant's Notice of Disagreement, and the failure of Tenant to give
such notice specifically as provided below within the time period set forth
above shall conclusively be deemed an acceptance by Tenant of the Market Rent as
determined by Landlord and a waiver by Tenant of any right to dispute such
Market Rent.
(b) Tenant's Notice of Disagreement, shall contain either
(1) a cancellation of Tenant's exercise of its Renewal Option (which
cancellation shall operate as a cancellation of all subsequent Renewal Options,
if any), or (2) a request to submit the determination of Market Rent to
arbitration as provided below.
(c) Landlord and Tenant shall, within thirty (30) days of
the date on which Tenant's Notice of Disagreement under Subsection 51.3(b)(2) is
given, each appoint an Appraiser (hereinafter defined) for the purpose of
determining the Market Rent. An "APPRAISER" shall mean a duly qualified
impartial real estate appraiser having at least ten (10) years' experience in
the area in which the Demised Premises are located. In the event that the two
(2) Appraisers so appointed fail to agree as to the Market Rent within a period
of thirty (30) days after the appointment of the second Appraiser, such two (2)
Appraisers shall forthwith appoint a third Appraiser who alone shall make a
determination of Market Rent within thirty (30) days thereafter. If such two
Appraisers fail to agree upon such third Appraiser within ten (10) days
following the last thirty (30) day period, such third Appraiser shall be
appointed by the presiding Judge of the Court of Common Pleas of the
Commonwealth of Pennsylvania for the County in which the Real Estate is located.
Such two Appraisers or third Appraiser, as the case may be, shall proceed with
all reasonable dispatch to determine the Market Rent. The decision of such two
Appraisers or third Appraiser shall be final and shall be unappealable, absent
any showing of fraud by such Appraiser(s); such decision shall be in writing and
a copy shall be delivered simultaneously to Landlord and to Tenant.
(d) If such two Appraisers or third Appraiser, as the
case may be, shall fail to deliver a decision as set forth above prior to the
commencement of the Renewal Term, Tenant shall pay to Landlord thereafter on the
first day of each month until the decision of the Appraiser(s) is rendered
"Estimated Minimum Rent", which shall be the average of (i) Minimum Rent payable
under this Lease as of the last day of the term preceding the Renewal Term and
(ii) the rent set forth in Landlord's Determination Notice, plus any amounts
payable by Tenant pursuant to Article 6, until such decision is so delivered. If
the Minimum Rent for the Renewal Term is more than the Estimated Minimum Rent
actually paid by Tenant to Landlord during such interim, then, Tenant, within
fifteen (15) business days of demand by Landlord, shall pay to Landlord the
difference between the Minimum Rent from the commencement of the Renewal Term
and the Estimated Minimum Rent actually paid by Tenant to Landlord. If the
Minimum Rent for the Renewal Term is less than the Estimated Minimum Rent
actually paid by Tenant to Landlord during such interim, then, Landlord shall
apply such excess against amounts due Landlord from Tenant hereunder as such
amounts become due.
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(e) Landlord and Tenant shall be responsible for and
shall pay the fee of the Appraiser appointed by each of them respectively, and
Landlord and Tenant shall share equally the fee of the third Appraiser, if any.
(f) Promptly upon determination of the Market Rent for
the respective Renewal Term, Tenant shall execute and deliver to Landlord or
Managing Agent an amendment to this Lease prepared by Landlord setting forth the
terms of the respective Renewal Term.
51.4
(a) The Minimum Rent during the Renewal Term shall be the
greater of: (1) ninety-five percent (95%) of the Market Rent (as defined in
clause (b) below), or (2) the Adjusted Minimum Rent as of the last day of the
Initial Term.
(b) For purposes of this Article, "MARKET RENT" shall
mean the projected fair market rent for office space containing the Rentable
Size of the Demised Premises (during the Renewal Term), as of the commencement
date of the Renewal Term, based upon the rents generally in effect for first
class office space in the area in which the Real Estate is located. Market Rent
shall be determined on what is commonly known as a "gross" basis; that is, in
computing Market Rent, it shall be assumed that all real estate taxes and
operating expenditures for customary services are included in such Market Rent
and are not passed through to the Tenant as separate additional charges. Market
Rent shall not take into consideration any tenant improvement allowances or
construction credits that may be available for tenants at comparable office
spaces.
(c) The Base Operating Year for the Renewal Term shall be
the last full calendar year of the Term.
(d) The Minimum Rent for each Renewal Term shall be
increased from time to time thereafter as provided in this Lease, including as
provided in Article 6 hereof.
Tenant waives any claims or action against Landlord or its successor in
title in the event that the renewal provided for in this Lease is made
impossible because of the taking of the Demised Premises in whole or in part for
public use by condemnation. Tenant further agrees to waive any demand or claim
for any award or allowance or any part thereof granted to Landlord as
compensation for such condemnation.
52. RIGHT OF FIRST OFFER.
52.1 Provided that Tenant is not then in default under the terms of
the Lease, Tenant shall have tile right of first offer to lease the remaining
space on the fourth (4th) floor of the Building ("FOURTH FLOOR SPACE"), upon the
following terms and conditions:
(a) In each event during the Term that Landlord is
prepared to give a bonafide offer to a prospective tenant to lease all or any
portion of the Fourth Floor Space ("OFFERED SPACE"), Landlord shall first give
Tenant an opportunity to lease the Offered Space by written notice of such
offer, setting forth the material terms and conditions (including, without
limitation, the Rent and the duration of the proposed term) upon which Landlord
would be willing to lease the Offered Space which terms and conditions shall be
in Landlord's sole determination ("LANDLORD'S AVAILABILITY NOTICE"). Within
seven (7) days after Tenant's receipt of Landlord's Availability Notice, Tenant
must give Landlord written notice pursuant to which Tenant shall elect either
(i) to lease the entire Offered Space on the terms and conditions set forth in
Landlord's Availability Notice, or (ii) to decline to lease the Offered Space.
If Tenant fails to elect to so lease the Offered Space within such seven (7) day
period, then Tenant shall be deemed to have declined to lease the Offered Space.
In the event that Tenant declines (or is deemed to have declined) to lease the
Offered Space, then Landlord shall be free to Lease the Offered Space to any
other party(ies) on the same or similar terms and conditions as set forth in the
Availability Notice for a period of six (6) months without any further
obligation to Tenant hereunder, provided, however that Tenant shall retain its
first offer rights hereunder with respect to any part of the Fourth Floor Space
not covered by that Landlord's Availability Notice, and to the Offered Space
only if it is not so leased to any other party within the six (6) month period.
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(b) If Tenant elects to lease the Offered Space in
accordance with, subparagraph (a) above (upon such election, the "ADDITIONAL
SPACE"), then Landlord and Tenant shall execute an amendment to the Lease to
provide for the inclusion of the Additional Space under the terms and conditions
set forth in Landlord's Availability Notice. Except as provided in Landlord's
Availability Notice, all other terms and conditions of the Lease shall apply to
the Additional Space except that (i) Tenant's Share of Taxes and Operating Costs
shall be increased to take into account the square footage of the Additional
Space and all other terms of the Lease affected by the addition of such square
footage shall be adjusted accordingly, (ii) Landlord shall not be required to
perform any improvements to the Additional Space unless specifically provided
for in Landlord's Availability Notice, (iii) Tenant shall not be entitled to any
allowances, credits, options or other concessions with respect to the Additional
Space unless specifically provided for in Landlord's Availability Notice and
(iv) the Security under this Lease may be increased in accordance with the
Availability Notice.
(c) The effective date of the addition of the Additional
Space to tile Demised Promises shall be the later of (i) the thirty-first (31st)
day after Tenant's acceptance of Landlord's Availability Notice, or (ii) the
date that Landlord delivers possession of the Additional Space to Tenant in
accordance with the terms of Landlord's Availability Notice.
(d) Except as otherwise provided in Landlord's
Availability Notice, Tenant agrees to accept the Additional Space in its "AS IS"
condition, in the then current physical state and condition thereof, without any
representation or warranty by Landlord.
53. LEASE CONTINGENCY
53.1 TENANT ACKNOWLEDGES THAT IT HAS SPECIFICALLY BEEN INFORMED BY
LANDLORD THAT THE DEMISED PREMISES IS CURRENTLY UNDER LEASE TO THE UNIVERSITY OF
PENNSYLVANIA HEALTH SYSTEM ("PENN") PURSUANT TO A LEASE AGREEMENT DATED AUGUST
1, 1995, AS THE SAME MAY HAVE BEEN AMENDED (THE "PENN LEASE"). TENANT EXPRESSLY
ACKNOWLEDGES THE EXISTENCE OF THE PENN LEASE AND THAT THE RIGHTS GRANTED TO PENN
THEREUNDER TO OCCUPY THE DEMISED PREMISES FOR THE BALANCE OF THE TERM OF THE
PENN LEASE WILL NOT EXPIRE UNTIL AFTER THE COMMENCEMENT DATE OF THIS LEASE.
TENANT FURTHER SPECIFICALLY ACKNOWLEDGES THAT THE RIGHTS, LIABILITIES AND
OBLIGATIONS OF LANDLORD AND TENANT HEREUNDER ARE EXPRESSLY CONTINGENT UPON THE
EARLY TERMINATION OF THE PENN LEASE, WHICH MAY OR MAY NOT OCCUR. TENANT FURTHER
AGREES THAT IF FOR ANY REASON WHATSOEVER LANDLORD AND PENN DO NOT AGREE IN
WRITING BY APRIL 28, 2000 TO AN EARLY TERMINATION OF THE PENN LEASE WHICH IS
SATISFACTORY TO LANDLORD, IN ITS SOLE DISCRETION, SUCH THAT IT WILL, INTER ALIA,
PERMIT THE TENANT TO TIMELY OCCUPY THE DEMISED PREMISES, THIS LEASE SHALL BE
NULL AND VOID AS OF THAT DATE AND NEITHER PARTY SHALL HAVE ANY RIGHTS AGAINST OR
OBLIGATIONS OR LIABILITIES TO THE OTHER, AND NEITHER PARTY SHALL HAVE ANY
RIGHTS, LIABILITIES OR OBLIGATIONS HEREUNDER.
54. SIGNAGE.
54.1 As provided in and in accordance with Section 24.1(e),
Landlord shall provide a listing of Tenant's name on the Building lobby
directory, the cost of which service shall be included in the Operating Costs.
Additionally, Tenant shall have the right, at its sole cost and expense, to
place identification signage at or near the entrance to the Demised Premises.
54.2 Tenant shall have the right, at its sole cost and expense, to
place its signage on the ground monument sign currently bearing the Penn
identification in a size not proportionately less than comparatively sized
tenants in the Building. The location, style, and contents of said sign shall be
determined by Landlord in its sole and reasonable discretion.
54.3 Within ninety (90) days of the execution of this Lease,
Landlord shall remove the Penn identification on the sign which is currently
located on the exterior of the Building.
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54.4 The location, size, style, and contents of all interior mid
exterior signage, if any, must be approved by Landlord in writing and shall
conform to Building standards, and shall comply with all applicable governmental
statutes, codes, rules and regulations.
55. GUARANTY.
55.1 This Lease is expressly Contingent upon the execution of the
Guaranty Agreement executed contemporaneously herewith by the Guarantor attached
hereto as EXHIBIT G. Should the Guarantor under the Guaranty Agreement cease to
exist, it shall be considered an Event of Default under this Lease and Landlord
shall immediately be entitled to all remedies provided for in Section 35
hereinabove, including the right to terminate this Lease.
56. VACATED SPACE.
56.1 If, at any time during the Term or the Renewal Term, if
applicable, Tenant vacates or abandons the entire Demised Premises for a period
of sixty (60) days or more, Landlord shall have the right to recapture the
entire Demised Premises, or any part thereof, by providing at least five (5)
days prior written notice, which notice shall, if given, cancel and terminate
this Lease with respect to the space therein described as of the date set forth
in the notice. If, at any time during the Term or the Renewal Term, if
applicable, Tenant vacates or abandons less than the entire Demised Premises
("VACATED SPACE") for a period of one hundred eighty (180) days or more,
Landlord shall have the right to recapture the Vacated Space, or any part
thereof, by providing at least five (5) days prior written notice, which notice
shall, if given, cancel and terminate this Lease with respect to the space
therein described as of the date set forth in the notice.
SIGNATURES APPEAR ON THE FOLLOWING PAGE.
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IN WITNESS WHEREOF, the parties hereto have entered into this Lease as
of the day first set forth above.
ATTESTED OR
WITNESSED BY: LANDLORD:
TRIAD REALTY ACQUISITION, LP
By: Xxxx & Xxxxxxxxx, Inc.
/s/ Xxxx Xxxxxxx Xxxx, Esq. By: /s/ Xxxxxx X. Xxxxxx
------------------------------------ -----------------------
Xxxx Xxxxxxx Xxxx, Esq. Xxxxxx X. Xxxxxx,
Authorized Representative
MANAGING AGENT :
XXXX & XXXXXXXXX, INC.
/s/ Xxxx Xxxxxxx Xxxx, Esq. By: /s/ Xxxxxx X. Xxxxxx
------------------------------------ -----------------------
Xxxx Xxxxxxx Xxxx, Esq. Xxxxxx X. Xxxxxx,
Senior Vice President
TENANT :
PHEONIX INTERNATIONAL LIFE
SCIENCES (IBRD) INC.
/s/ Xxxxxxx X. Xxxxx, Esq. By:/s/ Xxxxx Xxxxxxxx
--------------------------- -----------------------
Xxxxx Xxxxxxxx, Ph.D.
Name:Xxxxxxx X. Xxxxx, Esq. President & C.O.O. Global
------------------------------- Clinical Services
(please print)
Title:
-------------------
(please print)
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EXHIBIT A
RENTAL PLAN
46
THE TRIAD EXHIBIT A
DEMISED PREMISES
PAGE 1 OF 2
King of Prussia, Pennsylvania FOURTH FLOOR
[FLOOR PLAN IMAGE]
EXHIBIT A
DEMISED PREMISES
PAGE 2 OF 2
[FLOOR PLAN IMAGE]
EXHIBIT B
CLEANING SERVICE RIDER
The following summarizes basic cleaning services to be provided oil
business days (excluding weekends and Legal Holidays) and to be included in
Operating Costs.
GENERAL CLEANING OF OFFICE AREA
Cleaning Services provided five (5) business days per week.
Cleaning hours Monday through Friday, after 5:30 p.m. and before 8:00 a.m. of
the following business day.
On the last day of the week the work will be done after 5:30 p.m. Friday, but
before 8:00 a.m. Monday.
Furniture will be dusted and desk tops will be wiped clean. However, desks with
loose papers or other matter on the top will not be cleaned.
Window xxxxx and baseboards to be dusted and washed as reasonably necessary.
Office wastepaper baskets will be emptied, provided garbage, trash and other
refuse is separated as required pursuant to any Law or Rule and Regulation.
Cartons or refuse in excess of that which can be placed in wastepaper baskets
will not be removed. Tenants are required to place such unusual refuse in trash
cans or a spot designated by the Landlord.
Cleaner will not remove nor clean tea or coffee cups or similar containers;
also, if such liquids are spilled in wastebaskets, the wastebaskets will be
emptied but not otherwise cleaned. Wastepaper baskets shall be lined with vinyl
or plastic bags.
Exposed sheets of vinyl composition tile floors will be swept daily.
Exposed sheets of carpets will be vacuumed daily.
Seat cushions on chairs, sofas, etc., will be vacuumed weekly, unless cluttered
with paper or other matter.
LAVATORIES
All lavatory floors to be swept and washed with disinfectant nightly.
Tile walls and dividing partitions to be washed and disinfected weekly.
Basins, bowls, urinals to be washed and disinfected daily.
Mirrors, shelves, plumbing work, bright work, and enamel surfaces cleaned
nightly.
Waste receptacles and wash dispensaries to be filled with appropriate tissues,
towels and soap supplied by the Landlord.
MAIN LOBBY, ELEVATORS, CORRIDORS AND BUILDING EXTERIOR
Wipe and wash all floors in main lobby nightly.
Wipe and/or vacuum elevator floor nightly,
Polish floors weekly in elevator.
Elevator cab to be wiped clean daily and thoroughly cleaned and polished weekly.
Lobby walls, and glass, to be wiped clean daily and thoroughly cleaned and
polished weekly.
Lobby entrance doors, and windows to be washed weekly.
Windows will be cleaned when necessary, but not less than once each year, inside
and outside.
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MISCELLANEOUS SERVICES
Sweep sidewalk in front of Building entrances daily.
Remove snow and ice from sidewalks and Parking Areas as soon as reasonably
possible (but not between the hours of 6:00 p.m. and 8:00 a.m.) when
accumulation reaches 3" or more, to the extent necessary to make such sidewalks
and parking areas reasonably safe and usable.
Keep stairways clean.
Keep Custodian's Rooms and Mechanical Rooms clean and in orderly condition at
all times.
WORK EXCLUDED
Cleaning services do not include the washing, polishing, or waxing of furniture,
file cabinets, wastebaskets or other personal property of Tenant. When such work
is necessary, Tenant may make necessary arrangements for same directly with
Landlord's cleaning employees or contractors.
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EXHIBIT C
LEGAL HOLIDAYS
(a) The day(s) officially celebrated by the Commonwealth of Pennsylvania for the
following holidays:
New Year's Day
Xxxxxx Xxxxxx Xxxx'x Birthday
President's Day
Memorial Day
Independence Day
Labor Day
Thanksgiving
Christmas Day
(b) Such other holidays observed from time to time by the governments of the
United States of America and/or the Commonwealth of Pennsylvania, as designated
by Landlord to Tenant in writing.
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EXHIBIT D
RULES AND REGULATIONS
1. The sidewalks, entrances, driveways, passageways, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by Tenant or used for storage or for any other purpose other than for ingress to
or egress from the Demised Premises and for delivery of merchandise and
equipment to or from the Demised Premises in a prompt and efficient manner,
using elevators and passageways designated for such delivery by Landlord. There
shall not be used in any space, or in the public hall of the Building, either by
Tenant or by jobbers or others in the delivery or receipt of merchandise, any
hand trucks, except those equipped with rubber tires and sideguards. Tenant
shall provide protection of all floor surfaces during the moving of furniture or
heavy equipment as may be reasonably required by Landlord or its Managing Agent.
2. Freight, furniture, business equipment, merchandise and bulky matter of
any description shall be delivered to and removed from the Demised Premises only
on the freight elevators and through the service entrances and corridors, and
only during hours and in a manner approved by Landlord. Landlord reserves the
right to inspect all freight to be brought into the Building and to exclude from
the Building all freight which violates any of these Rules and Regulations or
this Lease.
3. The water and wash closets and plumbing fixtures shall not be used for
any purposes other than those for which they were designed or constructed and no
sweepings, rubbish, rags, sanitary napkins, acids or other substances shall be
deposited therein, and the expense of any breakage, stoppage, or damage
resulting from the violation of this rule by Tenant shall be borne by Tenant.
4. No carpet, rug or other article shall be hung or shaken out of any
window of the Building; and Tenant shall not sweep or throw or permit to be
swept or thrown from the Demised Premises any dirt or other substances into any
of the corridors or halls, elevators, or out of the doors or windows or
stairways of the Building and Tenant shall not use, keep or permit to be used or
kept any foul or noxious gas or substance in the Demised Premises, or permit or
suffer the Demised Premises to be occupied or used in a manner offensive or
objectionable to Landlord or other occupants of the Building by reason of noise,
odors, and/or vibrations, or interfere in any way with other tenants or those
having business therein, nor shall any animals or birds be kept in or about the
Building. Smoking or carrying lighted cigars or cigarettes in the elevators or
other common areas of the Building is prohibited.
5. Except as provided in the Lease, no awnings, signs or other projections
shall be attached to the outside walls of the Building without the prior written
consent of Landlord, which may be withheld at Landlord's sole discretion.
6. Except as provided in the Lease, no sign, advertisement, notice or
other lettering shall be exhibited, inscribed, painted or affixed by Tenant on
any part of the outside of the Demised Premises or the Building or on the inside
of the Demised Premises if the same is visible from the outside of the Demised
Premises without the prior written consent of Landlord, except that the name of
Tenant may appear on the entrance door of the Demised Premises in lettering
approved by Landlord. In the event of the violation of the foregoing by Tenant,
Landlord may remove and dispose of same without any liability, and may charge
the expense incurred by such removal to Tenant. Any interior listings and
directories shall be inscribed, painted or affixed for Tenant only by Landlord
or Managing Agent at the expense of such Tenant, and shall be of a size, color
and style acceptable to Landlord or Managing Agent.
7. Except as provided in the Lease, Tenant shall not xxxx, paint, drill
into, or in any way deface any part of the Demised Premises or the Building. No
boring, cutting or stringing of wires shall be permitted, except with the prior
written consent of Landlord, and as Landlord may direct, Tenant shall not lay
linoleum, or other similar floor covering, so that the same shall come in direct
contact with the floor of the Demised Premises, and, if linoleum or other
similar floor covering is desired to be used, an interlining of builder's
deadening felt shall be first affixed to the floor, by a paste or other
material, soluble in water, pursuant to Landlord's direction, the use of cement
or other similar adhesive material being expressly prohibited.
8. No additional locks, bolts or alarms of any kind shall be placed upon
any of the doors or windows by Tenant, nor shall any changes be made in existing
locks or mechanisms thereof. Tenant shall give Landlord or Managing Agent a
duplicate or master key or access card or code for each and every door in the
Demised Premises. Tcnant must, upon the termination of its tenancy, restore to
Landlord all keys or access cards to the Demised Premises, the Building, and any
doors therein, either furnished to, or otherwise procured by, Tenant, and in the
event of the loss of any keys or access cards, so furnished, Tenant shall pay to
Landlord the cost thereof. Tenant, at its expense, shall be responsible for
repair to all doors and locks which are in violation of this Rule, and shall pay
any alarm fee resulting from Landlord or Managing Agent's entrance into the
Demised Premises as permitted under this Lease.
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9. Canvassing, soliciting, pamphletting and peddling in the Building and
about the sidewalks, driveways and parking areas adjacent thereto are prohibited
and Tenant shall cooperate to prevent the same. Tenant shall report all
peddlers, solicitors and beggars to tile Managing Agent or as Landlord otherwise
requests.
10. Landlord shall have the right to prohibit any advertising by Tenant
which in Landlord's opinion, tends to impair the reputation of the Building or
its desirability as a Building for first-class offices, and upon written notice
from Landlord, Tenant shall refrain from or discontinue such advertising. No
distress sale, fire sale, bankruptcy sale, liquidation, relocation sale, closing
safe, going-out-of-business sale, auction, sheriff s sale, receiver's sale, or
any other sale that, in Landlord's opinion, adversely affects the reputation of
the Building or suggests that the business operations are to be discontinued in
the Demised Premises shall be conducted or advertised in or about the Demised
Premises.
11. Tenant shall not bring or permit to be brought or kept in or on the
Demised Premises, any inflammable, combustible or explosive fluid, material,
chemical or substance, or any hazardous substance in violation of Law or of this
Lease, or cause or permit any odors of cooking or other processes, or any
unusual or other objectionable odors to permeate in or emanate from the Demised
Premises.
12. If the Building contains central air conditioning and ventilation,
Tenant agrees to keep all windows and exterior doors closed at all times and to
abide by all rules and regulations issued by the Landlord with respect to such
services.
13. Tenant shall not move any safe, heavy machinery, heavy equipment, bulky
matter, or fixtures into or out of the Building without Landlord's prior written
consent. If such safe, machinery, equipment, bulky matter or fixtures requires
special handling, all work in connection therewith shall comply with all Laws
applicable thereto and shall be done during such hours as Landlord may
designate.
14. To the extent required by applicable Laws or Governmental Authorities,
Tenant shall separate its rubbish into any required categories including, but
not limited to, food products, paper, solid wastes, metals and glass. Any excess
trash or garbage which Tenant generates in excess of that generated by a normal
office user, and all garbage from Tenant's food service operation, if any, shall
be removed by the Landlord upon notice from Tenant, at Tenant's sole cost and
expense. Tenant shall not dispose of any hazardous substance or waste in
wastebaskets, boxes, or in Landlord's dumpster or trash compactor.
15. Tenant shall take reasonable action to ensure that its visitors do not
(a) utilize any parking spaces designated for the use of others, nor (b) park in
any driveways, fire lanes or other areas not striped for vehicular parking.
16. No portion of the driveways or parking areas serving the Building shall
be used for washing, maintaining, oil changing, repairing, or installing or
replacing parts in any vehicle, except to the extent that repairs are reasonably
necessary to fix a flat tire or start an engine enabling the vehicle to be
driven from the Real Estate. No vehicle shall be towed from the Real Estate by
Tenant, or its visitors, except after Tenant informs Landlord or the Managing
Agent of such removal. Any vehicle parked on the Real Estate without proper
registration and inspection or for longer than seven (7) continuous days may be
removed by Landlord, which removal shall be at Tenant's expense if the property
owned or used by Tenant or its visitors or invitees and is not removed within
five (5) business days after notice to Tenant to do so.
17. Tenant shall be solely liable for, and shall promptly pay, all costs,
charges and expenses directly or indirectly related in anyway to work,
alterations, decorations, installations, renovations or improvements performed
by Tenant or its Agent in or about the Demised Premises, including, but not
limited to, permit or inspection fees, costs for electricity, HVAC, temporary or
portable toilets and hot and cold water, freight elevator charges, costs for
trash removal and disposal, freight dock expenses, additional security charges,
insurance premiums and cleaning costs.
53
EXHIBIT E
LANDLORD'S WORK LETTER
Landlord will deliver the Premises substantially in accord with the "Space
Plans" (SP-2A and SP-2B) dated April 17, 2000 prepared by Xxxxx Associates, Inc.
as further detailed below. Except as specifically indicated on the Space Plans
or herein, Landlord will maintain the existing conditions. In the event of a
contradiction between the drawings and the scope delineated herein, the
specifications of the following scope will apply:
1. PERMITS: Landlord will secure all necessary building permits for the
Work.
2. DEMOLITION: In accordance with the Space Plans or as deemed necessary
by Landlord.
3. PARTITIONS: 3 - 5/8" metal partitions with 5/8" drywall on each side in
the locations and quantities delineated on the plan. Partitions will be
constructed from the slab to the underside of the ceiling grid, or as
noted on Plan.
4. DEMISING WALLS: 3 - 518" metal partitions with 5/8" drywall on each
side in the locations and quantities delineated on the plan. Demising
walls to be constructed from the floor to the underside of structure
above, with insulation blankets between studs.
5. MILLWORK: All existing millwork to remain. No new millwork is required.
6. CARPET: Building standard or equivalent glue down installation; a
$20.00 per usable square yard allowance will be provided. (Note: Carpet
in the boardroom, waiting/reception, library/training and adjacent
hallways will not be replaced.)
7. VINYL COMPOSITION TILE: Xxxxxxxxx Excelon or equivalent to be installed
in the following rooms:
a) Data Storage;
b) Regulatory Storage;
c) Medical Affairs Storage;
d) Project Management Storage.
ALL OTHER AREAS RECEIVING VINYL COMPOSITION TILE ARE TO BE CONSIDERED
AS EXISTING TO REMAIN.
8. CEILING: Maintain existing acoustical standard ceiling grid. Ceiling
tiles and grid in areas affected by demolition or new construction work
will be replaced with matching ceiling tile and grid.
9. PAINT: MAB building standard flat or equivalent, with a maximum of 2
colors throughout. Two coats will be applied to all non-wallcovered
wall surfaces.
10. DOORS: Existing doors and metal frames will be salvaged and maintained
or relocated to meet the requirements of the Space Plan. The existing
entrance doors will be maintained.
11. DOOR HARDWARE: All hardware shall be reused.
54
12. WALLCOVERING: All existing wall covering will remain and be patched as
needed. In addition, vinyl wall covering will be provided in the
President executive office (Wing B). An allowance of $ 1.00 per square
foot will be provided for such installation.
13. WINDOW TREATMENTS: Existing window treatments will be cleaned for
tenant's use.
14. HVAC: Landlord will make necessary adjustments to adapt the existing
system to the revised layout, including the relocation of air diffusers
and the installation of new digital VAV thermostat controls. Landlord's
required adjustments to the system assume general office use and
occupancy not to exceed 4 individuals per thousand usf and installation
of standard office equipment and lighting.
15. COMPUTER ROOM:
a) Provide raised flooring;
b) Provide supplemental HVAC (24 hours per day/7 days per week);
c) Provide separate electrical panel to service the Computer
Room. The actual additional power to be supplied is subject to
review by Landlord's electrical engineer and is subject to
building availability, as determined solely by Landlord.
d) Room to be lockable with card key access by Tenant;
e) Specialized fire protection to be defined by Tenant, and is
subject to Landlord's approval.
16. PLUMBING: All plumbing to remain as is.
17. SPRINKLERS: Sprinkler heads will be relocated and/or added as needed to
meet applicable codes.
18. FIRE ALARM: As required by code.
19. ARCHITECTURAL: Tenant will provide architectural plans necessary to
obtain building permits for the work, and the cost will be applied as a
reduction to the "Construction Credit". In addition, the cost of any
additional plans needed by Landlord for purposes of obtaining building
permits for the work will be applied as a reduction to the
"Construction Credit".
20. ELECTRICAL:
a) Existing receptacles to remain with an additional two (2)
installed per new office;
b) Light fixtures to be relocated as required by the Space Plans;
c) Landlord to provide check meter for tenant's electric;
d) Landlord's Work assumes that the existing power supply to the
Premises is sufficient and tenant does not require any
additional power service;
e) Provide twenty (20) system furniture flexible power supplies
as required per Space Plan;
f) Pull strings for thirty-nine (39) voice/data locations will be
provided;
g) An allowance for installation of ten (10) dedicated electrical
outlets will be provided.
21. ADDITIONAL ASSUMPTIONS:
a) ALL WORK STATIONS AND TENANT FURNITURE INDICATED IN PLAN WILL
BE PROVIDED AND INSTALLED BY TENANT.
b) Landlord's Work will include provision for an 8% fee to
Landlord's contractor(s).
c) Landlord's Work makes no provision for new floor cores.
Landlord's contractor will retrofit existing floor cores as
required to meet Tenant's layout.
d) Tenant will be responsible for all costs associated with the
installation of its telephone, data, security and cable TV
systems (as applicable).
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EXHIBIT F
FORM SUBORDINATION & NON-DISTURBANCE AGREEMENT
56
RECORDING REQUESTED BY,
AND WHEN RECORDED RETURN TO:
XXXXX FARGO BANK, N. A.
Commercial Mortgage Servicing
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Ref: Loan No. ___________________
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (the
"Agreement") is made as of the _____ day ________________, 2000 by and between
LaSalle Bank National Association, formerly known as LaSalle National Bank, as
Successor Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates Series 1998-WF2, having an address at c/o Wells Fargo
Bank, N.A., Commercial Mortgage Servicing, 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxxxxxxx, XX 00000 ("Lender") and _____________________________________ having
an address at ________________________________ ("Tenant").
RECITALS:
A. Tenant is the holder of a leasehold estate in a portion of the
property described on Exhibit A (the "Property") under and pursuant to the
provisions of a certain lease dated ____________________, between
__________________________________, as landlord ("Landlord") and Tenant, as
tenant (the "Lease");
B. The Property is encumbered by a deed of trust recorded on
________________, in the Official Records of _________________ County,
_________________, as Instrument # _________, the beneficial interest under
which has been assigned to Lender, and an assignment of rents recorded on
___________________ as Instrument #________________ in the Official Records of
_______________ County (collectively, the "Security Instrument"); and
C. Tenant has agreed to subordinate the Lease to the Security
Instrument and to the lien thereof and Lender has agreed to grant
non-disturbance to Tenant under the Lease on the terms and conditions
hereinafter set forth.
AGREEMENT:
NOW, THEREFORE, the parties hereto mutually agree as follows:
1. SUBORDINATION. The Lease shall be subject and subordinate in
all respects to the lien and terms of the Security Instrument, to any and all
advances to be made thereunder and to all renewals, modifications,
consolidations, replacements and extensions therof.
2. NONDISTURBANCE. So long as Tenant pays all rents and other
charges as specified in the Lease and is not otherwise in default (beyond
applicable notice and cure periods) of any of its obligations and covenants
pursuant to the Lease, Lender agrees for itself and its successors in interest
and for any purchaser or transferee of the Property upon a foreclosure of the
Security Instrument, that Tenant's possession of the premises as described in
the Lease will not be disturbed during the term of the Lease, as said term maybe
extended pursuant to the terms of the Lease or as said premises may be expanded
as specified in the Lease, by reason of a foreclosure. For purposes of this
agreement, a "foreclosure" shall include (but not be limited to) a sheriffs or
trustee's sale under the power of sale contained in the Security Instrument, the
termination of any superior lease of the Property and any other transfer of the
Landlord's interest in the Property under peril of foreclosure, including,
without limitation to the generality of the foregoing, an assignment or sale in
lieu of foreclosure.
3. ATTORNMENT. Tenant agrees to attorn to, accept and recognize
any person or entity which acquires the Property through a foreclosure (an
"Acquiring Party") as the landlord under the Lease for the then remaining
balance of the term of the Lease, and any extensions thereof as made pursuant to
the
1
Lease. The foregoing provision shall be self-operative and shall not require the
execution of any further instrument or agreement by Tenant as a condition to its
effectiveness. Tenant agrees, however, to execute and deliver, at any time and
from time to time, upon the request of the Lender or any Acquiring Party any
reasonable instrument which may be necessary or appropriate to evidence such
attornment.
4. NO LIABILITY. Notwithstanding anything to the contrary
contained herein or in the Lease, it is specfically understood and agreed that
neither the Lender, any receiver or any Acquiring Party shall be:
(a) liable for any act, omission, negligence or default
of any prior landlord (other than to cure defaults of a continuing nature with
respect to the maintenance or repair of the demised premises or the Property);
provided, however, that any acquiring Party shall be liable and responsible for
the performance of all covenants and obligations of landlord under the Lease
accruing from and after the date that it takes title to the Property; or
(b) except as set forth in (a), above, liable for any
failure of any prior landlord to construct any improvements;
(c) Subject to any offsets, credits, claims or defenses
which Tenant might have against any prior landlord; or
(d) bound by any rent or additional rent which is payable
on a monthly basis and which Tenant might have paid for more than one (1) month
in advance to any prior landlord; or
(e) bound by any surrender, amendment or modification of
the Lease or release of liability thereunder not expressly consented to in
writing by Lender or otherwise permitted by the Security Instrument in each
instance; or
(f) be liable to Tenant hereunder or under the terms of
the Lease beyond its interest in the Property.
Notwithstanding the foregoing, Tenant reserves its
rights to any and all claims or causes of action against such prior landlord for
prior losses or damages.
5. RENT. Tenant has notice that the Lease and the rents and all
other sums due thereunder have been assigned to Lender as security for the loan
secured by the Security Instrument. In the event Lender notifies Tenant of the
occurrence of a default under the Security Instrument and demands that Tenant
pay its rents and all other sums due or to become due under the Lease directly
to Lender, Tenant shall honor such demand and pay its rent and all other sums
due under the Lease directly to Lender or as otherwise authorized in writing by
Lender. Landlord hereby irrevocably authorizes Tenant to make the foregoing
payments to Lender upon such notice and demand.
6. LENDER TO RECEIVE NOTICES. Tenant shall notify Lender of any
default by Landlord under the Lease which would entitle Tenant to terminate the
Lease, and agrees that, notwithstanding any provisions of the Lease to the
contrary, no notice of termination thereof resulting from a default shall be
effective unless Lender shall have received notice of default giving rise to
such termination and shall have failed within sixty (60) days after receipt of
such notice to cure such default (but in no event less than fifteen (15) days
from and after the expiration of the period provided in the Lease for cure
thereof by Landlord), or if such default cannot be cured within sixty (60) days,
shall have failed within sixty (60) days (but in no event less than fifteen (15)
days from and after the expiration of the period provided in the Lease for cure
thereof by Landlord) after receipt of such notice to commence and thereafter
diligently pursue any action necessary to cure such default.
2
7. INSURANCE AND CONDEMNATION PROCEEDS. In the event of any
conflict between the provisions of the Security Instruments relating to the
application of insurance and condemnation proceeds and Paragraphs 15 and 16 of
the Lease, the provisions of the Security Instruments shall controll.
8. NOTICES. All notices or other written communications hereunder
shall be deemed to have been properly given (i) upon delivery, if delivered in
person with receipt acknowledged by the recipient thereof, (ii) one (1) Business
Day (hereinafter defined) after having been deposited for overnight delivery
with any reputable overnight courier service, or (iii) three (3) Business Days
after having been deposited in any post office or mail depository regularly
maintained by the U.S. Postal Service and sent by registered or certified mail,
postage prepaid, return receipt requested, addressed to the receiving party at
its address set forth above, and:
if to Tenant, to
----------------------------------------
the attention of:
----------------------------------------
Attention: ; and
----------------------------
if to Lender: LaSalle Bank National Association, Trustee
c/o Wells Fargo Bank, N.A.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Reference; WFB Loan #
or addressed as such party may from time to time designate by written notice to
the other parties. For purposes of this Paragraph 7, the term "Business Day"
shall mean any day other than Saturday, Sunday or any other day on which banks
are required or authorized to close in California.
Either party by notice to the other may designate additional or
different addresses for subsequent notices or communications,
9. SUCCESSORS. The obligations and rights of the parties pursuant
to this Agreement shall bind and inure to the benefit of the successors,
assigns, heirs and legal representatives of the respective parties.
10. DUPLICATE ORIGINALS; COUNTERPARTS. This Agreement may be
executed in any number of duplicate originals and each duplicate original shall
be deemed to be an original. This Agreement may be executed in several
counterparts, each of which counterparts shall be deemed an original instrument
and all of which together shall constitute a single Agreement. The failure of
any party herein to execute this Agreement, or any counterpart hereof, shall not
relieve the other signatories from their obligations hereunder.
11. TRANSFER OF LOAN/SERVICING. Leader may sell, transfer and
deliver the Note and assign the Security Instrument, this Agreement and the
other documents executed in connection therewith to one or more investors (as
defined in the Security Instrument) in the secondary mortgage market or
otherwise. Lender may also retain or assign responsibility for servicing the
loan evidenced by the Note, or may delegate some or all of such responsibility
and/or obligations to a servicer including, but not limited to, any subservicer
or master servicer, on behalf of the Investors. All references to Lender herein
shall refer to and include any such servicer to the extent applicable. Lender
may disclose the terms of this Agreement, the identity of Tenant or any
principal of Tenant, or any financial information regarding Tenant or any
principal of Tenant, to any Investor or potential Investor,
[SIGNATURES FOLLOW ON NEXT PAGE.]
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IN WITNESS WHEREOF, Lender and Tenant have duly executed this Agreement
as of the date first above written
LENDER:
LASALLE BANK NATIONAL ASSOCIATION, formerly
known as LASALLE NATIONAL BANK, as Successor
Trustee for Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through
Certificates Series 1998-WF2
By: XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Master Servicer
under the Pooling and Servicing
Agreement, dated June 1, 1998, by
and between Xxxxxx Xxxxxxx Capitol I
Inc., Xxxxx Fargo Bank, National
Association, Criimi Mae Services
Limited Partnership and Norwest Bank
Minnesota, National Association
BY:
-----------------------------
Its:
-----------------------------
TENANT:
By:
--------------------------------------
Its:
By:
--------------------------------------
Its:
5
STATE OF )
--------------------------
) ss.
County of )
--------------------------
On this ______________ of _____________________, 2000, before me a
notary public, personally appeared _________________________________ and
______________________________, personally known to me or proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacities, and that by
his/her/their signature(s) on the instrument the person(s) or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS MY HAND AND OFFICIAL SEAL.
---------------------------------
Notary Public
My Commission Expires:
---------------------------
6
EXHIBIT "A"
(Legal Description)
7
EXHIBIT G
GUARANTY AGREEMENT
8
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT ("GUARANTY") is given as of the _______ day of
April, 2000, by PHOENIX INTERNATIONAL LIFE SCIENCES, INC., a Canadian
Corporation ("GUARANTOR"), to and for the benefit of TRIAD REALTY ACQUISITION,
LP, and its successors and assigns (collectively, "LANDLORD").
WHEREAS, Landlord and PHOENIX INTERNATIONAL LIFE SCIENCES (IBRD), INC.
("TENANT") are parties to a certain lease ("LEASE") dated concurrently herewith;
and
WHEREAS, as a condition to entering into the Lease, Landlord is
requiring Guarantor to guaranty and become surety for the payment and
performance of all of the covenants, representations, obligations and
liabilities of Tenant under the Lease.
NOW,THEREFORE, for and in consideration of the entering into the Lease
by Landlord in accordance with the terms thereof, and the covenants of Guarantor
herein contained, and intending to be legally bound hereby, Guarantor hereby
covenants as follows:
1. Guarantor hereby irrevocably and unconditionally guarantees
and becomes surety for the prompt and faithful payment and performance of all of
the covenants, obligations and liabilities of Tenant, its successors and
assigns, under the Lease, including, but not limited to, the payments of all
installments of Adjusted Minimum Rent (as defined in the Lease), all damages in
the event of any Event of Default (as defined in the Lease), and other sums due
Landlord thereunder, and also for all representations of Tenant under the Lease.
All of such obligations are incorporated herein.
2. Guarantor expressly consents to any extension of time,
leniency, amendment, modification, waiver, forbearance, or any changes which may
be made in any terms and conditions of the Lease, and no such change,
modification, extension, waiver or forbearance shall release Guarantor from any
liability or obligation hereby incurred or assumed. Guarantor further expressly
waives any notice of default in or under any of the terms of the Lease, as
amended, and waives all setoffs and counterclaims; PROVIDED, HOWEVER, that
Guarantor shall be entitled to receive copies of any notices of default sent by
Landlord to Tenant, if but only if the named Tenant shall have assigned its
interest in the Lease to a person or entity not affiliated with Guarantor, and
shall be given the same right concurrently to cure any default as that afforded
Tenant under the Lease (excluding any defaults which, by their nature, are not
susceptible of cure by Guarantor).
3. It is specifically understood and agreed that if an Event of
Default by Tenant occurs under the Lease, Landlord shall be entitled to commence
any action or proceeding against Guarantor, or otherwise exercise any available
remedies at law or in equity to enforce the provisions of this Guaranty without
first commencing any action or otherwise proceeding against the Tenant or any
other party, or otherwise exhausting all of its available remedies against the
Tenant.
4. In the event that any action is commenced by Landlord to
enforce the provisions of this Guaranty, Landlord shall, if it prevails in such
action, be entitled to recover from Guarantor the reasonable costs of such
action including reasonable attorneys' fees.
5. No payment by Guarantor to Landlord during the term of this
Guaranty shall entitle Guarantor, by subrogation or otherwise, to any payment
from Tenant under or out of the property of Tenant, except after payment in full
to Landlord of all amounts due and payable by Tenant to Landlord pursuant to the
Lease.
6. The liability of the Guarantor shall not be deemed to be
waived, released, discharged, impaired or affected by reason of the release or
discharge of Tenant or any assignee
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in any condition, receivership, bankruptcy (including Chapter VII or Chapter XI
bankruptcy proceedings or other reorganization proceedings under the Bankruptcy
Code) or other insolvency proceeding, or the rejection or disaffirmation of the
Tenant or any assignee in any such insolvency proceeding, and shall continue
with respect to all obligations which would have accrued under the Lease absent
such rejection or disaffirmation of the Lease.
7. Guarantor acknowledges that it is financially interested in
the Tenant.
8. Following the termination of this Guaranty, Landlord will, at
the request of Guarantor, execute such documents as Guarantor may reasonably
request to acknowledge that this Guaranty is terminated and the Guarantor has no
further liability or obligation hereunder.
9. GUARANTOR HEREBY AUTHORIZES, IRREVOCABLY, THE PROTHONOTARY,
THE CLERK OF COURT, OR ANY ATTORNEY IN ANY FEDERAL OR STATE COURT IN THE
COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE, TO APPEAR FOR AND TO CONFESS JUDGMENT
AGAINST GUARANTOR IN FAVOR OF LANDLORD, AS OF ANY TERM, PAST, PRESENT OR FUTURE,
WITH THE FILING OF AN AVERMENT OF DEFAULT, WITH COSTS OF SUIT, RELEASE OF
ERRORS, WITHOUT STAY OF EXECUTION, AND FOR SUCH AMOUNT AS MAY APPEAR TO BE
UNPAID UNDER THIS GUARANTY, TOGETHER WITH ALL COSTS AND OTHER EXPENSES AND
ATTORNEYS' FEES IN AN AMOUNT EQUAL TO FIVE PERCENT (5%) OF ALL AMOUNTS PAYABLE
HEREUNDER BUT IN NO EVENT LESS THAN FIVE THOUSAND DOLLARS ($5,000.00), TOGETHER
WITH ALL COSTS AND EXPENSES INCURRED BY LANDLORD'S ATTORNEYS. GUARANTOR HEREBY
WAIVES THE RIGHT OF ANY INQUISITION ON ANY REAL ESTATE THAT MAY BE LEVIED UPON
AND HEREBY VOLUNTARILY CONDEMNS THE SAME, AUTHORIZES THE PROTHONOTARY TO ENTER
UNDER THE WRIT OF EXECUTION ITS SAID VOLUNTARY CONDEMNATION, AGREES THAT SAID
REAL ESTATE MAY BE SOLD ON A WRIT OF EXECUTION, AND HEREBY WAIVES AND RELEASES
ALL RELIEF FROM ANY AND ALL APPRAISEMENT, STAY OR EXEMPTION LAWS OF ANY STATE
NOW IN FORCE OR HEREAFTER TO BE PASSED.
10. This Guaranty shall inure to the benefit of Landlord, its
heirs, personal representatives, successors and assigns and shall be binding
upon the heirs, personal representatives, successors and assigns of the
Guarantor.
11. This Guaranty shall be enforced in accordance with the laws of
the Commonwealth of Pennsylvania without giving effect to the principles of
conflict of laws.
12. This Guaranty shall be irrevocable and shall continue
notwithstanding any assignment, sublease or other transfer of the Lease or the
Demised Premises (as defined in the Lease) or any interest therein.
13. Guarantor is a Canadian Corporation doing business in the
United States and as such is qualified to do business in the Common wealth of
Pennsylvania.
IN WITNESS WHEREOF, Guarantor has, duly executed this Guaranty as of
the day and year first above written.
PHOENIX INTERNATIONAL LIFE
SCIENCES, INC.
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Attest: By:
--------------------------------- -------------------------
Address:
----------------------
----------------------
----------------------
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COMMONWEALTH OF PENNSYLVANIA :
: ss
COUNTY OF :
ON THIS, the ____ day of
_______________, 1998, before me, a Notary Public in and for the State and
County aforesaid, the undersigned officer, personally appeared
_____________________, who acknowledged to me that he executed the foregoing
instrument for the purposes therein contained by signing his name.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
---------------------------
Notary Public
(NOTARIAL SEAL)
MY COMMISSION EXPIRES:
12
