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Exhibit 10.26
OFFICE LEASE
between
HUB PROPERTIES TRUST, Landlord
and
REAL MEDIA, INC., Tenant
for space at
000 XXXXXXXX XXXXX
XXXX XXXXXXXXXX, XXXXXXXXXXXX
Date: January 5, 2000
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TABLE OF CONTENTS
SECTION PAGE
1. Definitions........................................1
2. Premises; Use; Security............................3
3. Term...............................................5
4. Rent...............................................8
5. Real Estate Taxes..................................9
6. Operating Expenses................................13
7. Improvement of the Premises.......................19
8. Services..........................................25
9. Limitation Regarding Services.....................27
10. Care of Premises..................................28
11. Negative Covenants of Tenant......................31
12. Subletting and Assigning..........................36
13. Fire or Other Casualty............................39
14. Release and Indemnity.............................43
15. Insurance.........................................44
16. Eminent Domain....................................47
17. Default and Remedies..............................48
18. Subordination.....................................53
19. Holding Over......................................54
20. Notices...........................................55
21. Certain Rights Reserved to the Landlord...........55
22. [Intentionally omitted.]..........................57
23. Use and Occupancy Tax and Miscellaneous Taxes.....57
24. Excepted from Premises............................58
25. Mechanics' and Other Liens........................58
26. Estoppel Statement................................59
27. Covenant of Quiet Enjoyment.......................60
28. Brokers...........................................60
29. Limitations on Liability..........................60
30. Miscellaneous.....................................62
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AGREEMENT OF LEASE
THIS IS AN AGREEMENT OF LEASE (hereinafter "Lease") made as of the 5th day
of January, 2000, by and between HUB PROPERTIES TRUST, a Maryland real estate
investment trust (herein called "Landlord"), and REAL MEDIA, INC., a corporation
formed under the laws of Delaware (herein called "Tenant").
BACKGROUND
A. Landlord desires to lease to Tenant the premises identified in this
Lease under the terms and conditions herein set forth.
B. Tenant desires to lease and accept from Landlord the premises identified
in this Lease under the terms and conditions herein set forth.
AGREEMENTS
IN CONSIDERATION of the Background, and the mutual covenants and agreements
herein set forth, and other good, valuable and sufficient consideration
received, and intending to be legally bound hereby, the parties hereto agree as
follows:
1. Definitions.
Additional Rent. The term "Additional Rent" or "additional rent" shall
mean all sums payable under this Lease for any purpose, whether or not they are
expressly designated as "Additional Rent" or "additional rent" or would
otherwise be considered rent, other than Minimum Rent.
Affiliate. The term "affiliate" of any entity, corporation, partnership
or limited liability company shall mean any other entity, corporation,
partnership or limited liability company controlling, controlled by, or under
common control with the former.
Base Year. The term "Base Year" shall mean calendar year 2000.
Building. The term "Building" shall mean that certain commercial office
building and related improvements presently known as and located at 000 Xxxxxxxx
Xxxxx in Fort Washington, Pennsylvania.
Business Day. The term "Business Day" or "business day" shall mean
Monday through Friday, except Holidays. All references to a period of days in
this Lease shall be deemed to refer to calendar days unless the term "Business
Day or business day" is used.
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Business Hours. The term "Business Hours" shall mean 8:00 A.M. to 6:00
P.M., Monday through Friday, and 8:00 A.M. to 1:00 P.M. on Saturday, Holidays
excepted.
Construction Allowance. The term "Construction Allowance" shall mean the
sum of $7.00 per Rentable Square Foot of the Premises, to be applied as set
forth in Section 7.8 below.
Holidays. The term "Holidays" shall mean President's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day, Christmas Day, New Year's Day and
all union holidays of workers employed by Landlord at the Building.
Land. The term "Land" shall mean the parcel or parcels of real property
on which the Building is located.
Landlord. The term "Landlord" shall mean that entity named on page 1 of
this Lease and any subsequent owner of such Landlord's interest in the Property,
as well as their respective heirs, personal representatives, successors and
assigns, all subject to the provisions of Section 29 hereof.
Lease Interest Rate. The term "Lease Interest Rate" shall mean the
lesser of (A) the Prime Rate in effect from time to time plus four percent (4%),
or (B) the maximum amount or rate that Landlord may lawfully charge Tenant in
the circumstances if such a maximum exits.
Manager. The term "Manager" shall mean REIT Management & Research, Inc.,
having an address at 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or such
other party or such other address as Landlord may designate, from time to time,
by written notice to Tenant.
Permitted Use. The term "Permitted Use" shall mean use only for
commercial offices (and offices for the clerical and other staff providing
support services necessarily attendant thereto), consistent with the character
of the Building, and for no other purpose.
Prime Rate. The term "Prime Rate" shall mean the reference rate of
interest as reported in the Wall Street Journal or its successor; if such
reference rate is discontinued or no longer quoted, then such comparable rate as
Landlord reasonably designates by notice to Tenant.
Property. The term "Property" shall mean the Land and the Building
together.
Rentable Area. The term "Rentable Area" for any space in the Building
hereunder shall mean the total Rentable Square Feet contained in such space as
calculated by Landlord.
Rentable Square Feet. The terms "Rentable Square Foot", "Rentable Square
Feet" and "Rentable Square Footage" shall refer to the rentable square footage
of any space leased by Tenant hereunder as calculated by Landlord.
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2. Premises; Use; Security.
2.1. Premises. Landlord hereby leases to Tenant, and Tenant hereby
leases and rents from Landlord, on the terms and subject to the conditions
herein set forth, all Rentable Area on the second floor of the Building, agreed
to consist of approximately 16,820 Rentable Square Feet, being generally
illustrated on the floor plan attached hereto as Exhibit "A" (the "Premises").
Solely for ease of reference, portions of the Premises are referred to in this
Lease as, respectively, Phase I and Phase II (the "Phases"; each a "Phase"), as
follows (both Phases are also identified on Exhibit "A" attached hereto):
Phase Area of Phase
I 13,357 Rentable Square Feet
II 3,463 Rentable Square Feet
Notwithstanding the references in this Lease to the Phases, the Premises is
hereby leased to Tenant as an undivided whole (with staggered Rent Commencement
Dates as hereinafter set forth). Accordingly, a breach by Tenant of any of its
obligations under this Lease with respect to either Phase (including, without
limitation, the payment of Rent) shall constitute a breach by Tenant with
respect to the entire Premises.
2.2. Use. Tenant shall not use or occupy, or permit or suffer to be used
or occupied, the Premises or any part thereof, other than for the Permitted Use.
2.2.1. The Permitted Use shall not include, and Tenant shall not
use, or permit the use of, the Premises or any part thereof for: (a) sale of
wine, ale, beer or other alcoholic beverages kept in the Premises; (b) sale at
wholesale or retail of any other products or materials kept in the Premises, by
vending machines (except to Tenant's employees and business guests) or
otherwise, or demonstrations to the public, or as a restaurant or bar, or for
the sale of candy, food cigarettes, cigars, tobacco, newspapers, magazines,
beverages or similar items, or for the preparation, dispensing or consumption of
food or beverages in any manner whatsoever (except to Tenant's employees and
business guests); (c) manufacturing or printing; (d) rendition of medical,
dental or other diagnostic or therapeutic services, except that Tenant shall
have the right to employ a resident nurse for Tenant's employees normally
working at the Premises; (e) conduct or maintenance of any gambling or gaming
activities or any political activities or any club activities, whether private
or public, or a school of any kind or an employment or placement agency; (f) the
offices or business of a governmental or quasi-governmental bureau, department
or agency, foreign or domestic, including an autonomous governmental corporation
or diplomatic or trade mission; (b) a retail banking, trust company, depository,
guarantee or safe deposit business; (h) a retail savings bank, savings and loan
association or loan company; (i) sale of travelers checks, money orders, drafts,
foreign exchange or letters of credit or the receipt of money for transmission;
(j) a stockbroker's or dealer's office or for the underwriting or sale of
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securities; (k) an employment agency, executive search firm or similar
enterprise, labor union, school or vocational training center; (l) a xxxxxx shop
or beauty salon; or (m) a travel agency.
2.2.2. Tenant shall not use, occupy or permit the Premises or any
part thereof to be used in any manner, or permit anything to be brought into or
kept therein, which would (a) violate any laws or the certificate of occupancy
for the Building, (b) make unobtainable from reputable insurance companies
authorized to do business in Pennsylvania at standard rates "all risk" casualty
insurance coverage or liability, elevator, boiler or other insurance, (c)
constitute a public or private nuisance, (d) adversely affect the appearance,
character or reputation of the Building as a first-class office building, or (e)
violate exclusive rights granted to other tenants of the Building under their
leases of which Landlord shall have given Tenant written notice.
2.2.3. If any governmental license or permit, other than a
certificate of occupancy of the entire Building, shall be required for the
proper and lawful conduct of Tenant's business in the Premises and if failure to
secure such license or permit would in any way adversely affect Landlord the
Building, then Tenant, at its expense, shall duly procure and thereafter
maintain such license or permit and submit the same to Landlord for inspection.
Tenant shall at all times comply with the terms and conditions of each such
license and permit, but in no event shall Tenant's failure to procure or
maintain such license or permit relieve Tenant form its obligations hereunder.
2.3. Right of First Offer. Landlord hereby grants to Tenant a right of
first offer to lease from Landlord during the Term of this Lease, as extended,
all (but not less than all) rentable space that becomes available for tenancy in
the Building excluding only rentable space (a) with respect to which the
existing tenant occupying same desires to exercise a renewal option or negotiate
a new lease and (b) with respect to which a then existing tenant of the Building
has an expansion option (which shall not be deemed to include a right of first
refusal or a right of first offer) entitling it to lease such space (such
rentable space being herein referred to as the "Available Space"), on the
following terms and conditions: In the event that all or any portion of the
Available Space becomes available for Lease for a term commencing prior to the
end of the Term of this Lease, Landlord shall offer such space to Tenant on the
same terms and conditions as Landlord would propose to an unrelated third party
for such space, for a lease commencing at or approximately at the time the
Available Space, or portion thereof, will be available for occupancy. Landlord's
offer shall take the form of a written notice to Tenant setting forth the
Rentable Area of the portion of the Available Space proposed to be leased, the
date it is expected to be available, the proposed terms and conditions of lease
and a floor plan of the space in question (an "Offer"). Tenant shall have ten
(10) business days following receipt of an Offer within which to deliver written
notice to Landlord agreeing to lease the Available Space on the terms of the
Offer. If Tenant timely delivers such notice, the parties will execute an
amendment of this Lease containing the terms of the Offer within twenty (20)
days thereafter. If Tenant does not deliver such notice to Landlord within ten
(10) business days as aforesaid, Landlord may thereafter complete the leasing of
the Available Space to any third party, and Tenant's right
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under this Section 2.3 to lease the portion of the Available Space referenced in
the rejected Offer shall irrevocably terminate for the duration of the Term.
Notwithstanding the foregoing, the right of first offer herein contained shall
not be effective during the last twelve (12) calendar months of the Term unless
Tenant shall have exercised any applicable option to renew contained in Section
3, below, which is exercisable during such twelve (12) month period.
2.4. Security. During the period following the Rent Commencement Date
(defined in Section 3.1 hereof) for Phase I that the existing tenant occupying
Phase II on the date of this Lease (the "Phase II Tenant") remains within Phase
II, Landlord agrees to be responsible for maintaining the security of Phase I
against intrusions by the Phase II Tenant or its employees through the two (2)
doors which presently connect Phase I with Phase II.
3. Term.
3.1. Duration. The term of this Lease (the "Term") shall commence on
that date (the "Lease Commencement Date") which is the date Tenant or anyone
claiming under or through Tenant first enters the Premises or any portion
thereof for purposes of occupying same for any reason or performing any work or
services therein. As used herein, the term "Rent Commencement Date", with
respect to Phase I, means the earlier of (a) the third (3rd) business day
following the date of Substantial Completion (as defined in Section 3.2 hereof)
of that Phase, or (b) the date Tenant or anyone claiming under or through Tenant
first occupies or takes possession of that Phase or any portion thereof for
purposes of conducting the Permitted Use therein, and the term "Rent
Commencement Date", with respect to Phase II, means December 1, 2000. The Term
shall continue until that date (the "Termination Date") which is the last day of
the sixth (6th) Lease Year, unless sooner terminated. Landlord shall endeavor to
inform Tenant, at least thirty (30) days prior thereto, of the estimated date of
Substantial Completion of Phase I if different from the estimate set forth in
Section 3.2 hereof. The "First Lease Year" shall be the twelve (12) month period
commencing on the Rent Commencement Date for Phase I, if such Rent Commencement
Date is the first day of a calendar month, or, if the Rent Commencement Date for
Phase I is other than on the first day of a calendar month then the period
commencing on the Rent Commencement Date for Phase I and continuing through the
last day of the twelfth full calendar month thereafter. Each "Lease Year" after
the First Lease Year shall be a consecutive twelve (12) month period commencing
on the first day of the calendar month immediately following the preceding Lease
Year. Tenant covenants that it shall accept possession of each Phase on the Rent
Commencement Date for that Phase and thereafter continuously occupy the
Premises, subject only to any rights of sublease or assignment herein contained,
during the entire Term and any renewals thereof.
3.2. Substantial Completion. The terms "Substantial Completion" or
"Substantially Complete" shall mean, with respect to a particular Phase, that
state of completion of the Tenant Work (hereinafter defined) for that Phase
which will, except for any improvements or work to be performed by Tenant, allow
Tenant to utilize the Phase for its intended purpose without material
interference to the customary business activities of Tenant by reason of the
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completion of any work being performed by Landlord, provided Substantial
Completion cannot occur unless there is available to the Phase: (1) required
utility services in reasonable quantities, (2) reasonable access through a
ground floor entranceway of the Building and that portion of the lobby area of
the Building leading from such entranceway to the elevators servicing the
Premises; and (3) passenger elevator service servicing the Premises during
business hours. Substantial Completion of a Phase shall be deemed to have
occurred notwithstanding that minor or insubstantial details of construction,
decoration or mechanical adjustment remain to be performed. The foregoing minor
or insubstantial details are referred to in this Lease as "Punchlist Items".
Landlord presently estimates that the date of Substantial Completion of Phase I
will be December 15, 1999 . Landlord presently estimates that the date of
Substantial Completion of Phase II will be November 15, 2000. The term
"Substantial Completion Date" for a Phase shall mean the earlier of (i) the date
on which the Tenant Work in that Phase is Substantially Complete or (ii) the
date that such Tenant Work would have been Substantially Complete but for any
Tenant Delay (defined in Subsection 7.4 hereof).
3.3. Effect of Tenant Delay. Anything in Section 3.2 to the contrary
notwithstanding, to the extent that the Rent Commencement Date of a Phase is
delayed by reason of a delay in Substantial Completion of that Phase because of
any Tenant Delay, the Rent Commencement Date of that Phase shall occur, and
Tenant's obligations to pay Rent (including Real Estate Taxes and Operating
Expenses) for that Phase under this Lease shall commence on that day on which,
in Landlord's estimation, Substantial Completion of that Phase would have
occurred but for such Tenant Delay. If Landlord has actual knowledge that Tenant
Delay is occurring, Landlord agrees to give Tenant written notice thereof in a
reasonably timely manner.
3.4. Effect of Other Delays. If Substantial Completion of a Phase shall
occur on a date later than the date set forth in Section 3.2 above, or if
Landlord shall be delayed in the delivery of possession of a Phase to Tenant
because repairs, improvements or decoration of the Premises or Building to be
performed by Landlord are not completed, or for any other reason, whether or not
within Landlord's control, Landlord shall not be subject to any liability to
Tenant. If the delay was not attributable to Tenant Delay, the Rent reserved and
covenanted to be paid herein for that Phase shall not commence and the Rent
Commencement Date for that Phase shall not occur until possession of the Phase
can be given to Tenant in the required state of Substantial Completion. No such
failure to give possession shall in any other respect affect the validity of
this Lease or any obligation of Tenant hereunder.
3.5. Confirmation Memorandum. On or about the Rent Commencement Date for
each Phase, Landlord shall prepare and Landlord and Tenant shall each promptly
execute, acknowledge and deliver to one another a memorandum in form
substantially as set forth in "Exhibit B" hereto, confirming the information set
forth in such form (the "Confirmation Memorandum").
3.6. Renewal Option. Tenant is hereby granted the option to extend the
Term of this Lease, with respect to all of the Premises as then constituted, for
one (1) consecutive
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additional period of five (5) years commencing on the day following the
Termination Date (referred to as a "Renewal Term"), upon the following terms and
conditions:
(i) No Event of Default shall have occurred during the Term of this
Lease, either prior to Tenant's giving of its renewal notice to Landlord
or at or prior to the commencement of the Renewal Term;
(ii) Landlord shall have made a good faith determination that
Tenant remains creditworthy;
(iii) Tenant shall not have previously assigned this Lease or
sublet all or any portion of the Premises;
(iv) Tenant shall have delivered to Landlord written notice of
Tenant's election to exercise this option not less than 270 days prior
to the Termination Date;
(v) all lease terms for the Renewal Term shall be the same as
specified for the initial Term of this Lease, except that (a) there
shall be no further option to renew or extend the Term of this Lease,
(b) Landlord shall provide Tenant with a $50,000.00 refurbishment
allowance at the commencement of the Renewal Term, payable within thirty
(30) days following receipt of written request from Tenant accompanied
by paid invoices or other evidence reasonably acceptable to Landlord of
Tenant's having incurred and paid the sums sought to be reimbursed,
which allowance shall be expended solely in reimbursement of costs and
expenses incurred by Tenant in recarpeting, repainting, refurnishing and
otherwise refurbishing the Premises during the first six (6) months of
the Renewal Term (the "Refurbishment Allowance"), (c) apart from the
Refurbishment Allowance, there shall be no Construction Allowance or
other allowances or inducements payable by Landlord during the Renewal
Term, and (d) Minimum Rent payable during the Renewal Term shall be the
greater of (1) the escalating fair market value rent then being charged
or quoted by Landlord for leases of comparable space in the Building for
comparable terms commencing within one year prior to or after the
commencement of the Renewal Term, or (2) the Minimum Rent payable by
Tenant during the sixth (6th) Lease Year; and
(vi) if Landlord and Tenant fail to agree as to all terms and sign
an amendment to this Lease extending the Term for the Renewal Term as
provided in this Section at least 230 days prior to the Termination
Date, all time periods for Tenant herein being of the essence, then
Tenant's option to extend the Term of this Lease for the Renewal Term
shall lapse and this Section shall be of no further force or effect.
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Tenant's rights under this Section 3.6 are personal to the entity hereinabove
named as "Tenant" and are non-transferable.
4. Rent.
4.1. Minimum Rent. Annual minimum rent for the Premises ("Minimum Rent")
shall be as follows (as used in the following chart, the term "RSF" means
"Rentable Square Foot"):
First Lease Year $20.50 per RSF
Second Lease Year $21.00 per RSF
Third Lease Year $21.50 per RSF
Fourth Lease Year $22.00 per RSF
Fifth Lease Year $22.50 per RSF
Sixth Lease Year, through $23.00 per RSF
Termination Date
Notwithstanding the foregoing, no Minimum Rent shall be payable with
respect to Phase I hereunder during the first full calendar month following the
Rent Commencement Date for Phase I. Minimum Rent for a given Phase shall be
payable in equal monthly installments commencing on the Rent Commencement Date
for that Phase and thereafter due on the first day of each month during the Term
without demand, deduction or set-off, at the office of Manager; provided,
however, that upon Tenant's execution of this Lease Tenant shall prepay to
Landlord the first two (2) months of Minimum Rent owing for Phase I.
4.2. Partial Month. If the Rent Commencement Date for a given Phase
occurs on a day other than the first day of a month, Minimum Rent for that Phase
from such day until the first day of the following month shall be prorated (on
the basis of the number of days during the first month within the term of this
Lease) and shall be payable, in advance, on the Rent Commencement Date for that
Phase.
4.3. Rent Acceptance. If Landlord, at any time or times, shall accept
Minimum Rent or any other sum due to it hereunder after the same shall become
due and payable, such acceptance shall not excuse delay upon subsequent
occasions, or constitute, or be construed as, a waiver of any of Landlord's
rights hereunder.
4.4. Additional Rent. All sums payable by Tenant under this Lease,
whether or not stated to be rent, Minimum Rent or Additional Rent or otherwise
denominated (hereinafter
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collectively referred to as "Rent"), shall be collectible by Landlord as rent
and in the event of a default in payment thereof Landlord shall have the same
rights and remedies as for a failure to pay Minimum Rent (without prejudice to
any other right or remedy available therefor).
4.5. Late Charge. If any payment of Rent (including, without limitation,
all Minimum Rent and all Additional Rent) or any part thereof to be made by
Tenant to Landlord pursuant to the terms of this Lease shall become overdue for
a period in excess of five (5) days, a late charge of Five Cents ($0.05) for
each dollar so overdue shall be paid by Tenant for the purpose of defraying the
expense incident to handling such delinquent payment, together with interest
from the date such payment or part thereof was due, at the Lease Interest Rate.
Notwithstanding the foregoing, Landlord agrees to credit the aforesaid late
charge toward payment of the first interest falling due hereunder with respect
to the same overdue payment of Rent. Nothing herein or in the imposition or
acceptance of a late charge by Landlord shall be construed as a waiver of any
rights of Landlord arising out of any default of Tenant; the right to collect
any late charge or interest is separate and apart from any rights or remedies of
Landlord relating to any default by Tenant.
4.6. Independent Covenant; Survival. Tenant's covenant to pay all Rent
hereunder is independent of any other covenant, agreement, term or condition of
this Lease. Without limiting the other obligations of Tenant which shall survive
the expiration of the term hereof, the obligation of Tenant to pay Rent shall
survive the expiration of the Term hereof.
4.7. Phase II Early Occupancy Rent. Notwithstanding anything to the
contrary elsewhere contained in this Lease, if Tenant shall occupy all or any
portion of Phase II for purposes of conducting the Permitted Use therein prior
to the Rent Commencement Date for Phase II, then commencing on the first day of
such occupancy and ending on the day prior to the Rent Commencement Date for
Phase II, Tenant shall pay to Landlord, in lieu of Minimum Rent (a) Landlord's
charge for consumption of electricity within Phase II, to be determined and
payable in accordance with Section 8.8.1 hereof, and (b) 7.33% of that portion
of Real Estate Taxes and Operating Expenses (as such terms are defined in
Sections 5 and 6 hereof) allocable to such period of occupancy (to be reasonably
prorated by Landlord based on the actual number of days of occupancy),
calculated by Landlord without reference to the Base Year, and payable by Tenant
to Landlord monthly, in arrears, within thirty (30) days following receipt of
Landlord's reasonably itemized xxxx. In the event of such early occupancy,
within a reasonable time following the end of calendar year 2000 Landlord shall
deliver to Tenant a statement reflecting the actual Real Estate Taxes and
Operating Expenses for the Building and Tenant's share thereof for the period of
early occupancy of Phase II, and if such figures differ from the sums actually
paid by Tenant hereunder, Landlord shall provide Tenant a credit against Minimum
Rent for any overpayment or Tenant shall pay to Landlord within thirty (30) days
the amount of any underpayment, as the case may be.
5. Real Estate Taxes.
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5.1. Definitions. As used in this Section 5, the following terms shall
be defined as hereinafter provided:
5.1.1. "Real Estate Taxes" shall mean all taxes, liens, charges,
imposts and assessments of every kind and nature, ordinary or extraordinary,
foreseen or unforeseen, general or special, levied, assessed or imposed by any
governmental authority with respect to the Property, as well as all fees or
assessments payable on account of the Property being located in the Fort
Washington Special Services District, as well as all that portion of the
Business Privilege Tax of the City of Fort Washington which is based upon gross
"receipts" with respect to the Property and not upon "net income" with respect
to the Property, any income or gross receipts tax which is limited to income
from real property, miscellaneous taxes (other than Real Estate Taxes)
applicable to or assessed by reason of the ownership of the Property and any
taxes imposed on personal property in the Building owned by Landlord and used in
connection with the Property. Notwithstanding the foregoing:
5.1.1.1. if at any time during the Term of this Lease the
present system of ad valorem taxation of real property shall be changed or
supplemented so that in lieu of or in addition to the ad valorem tax on real
property there shall be assessed on Landlord or the Property any tax of any
nature which is imposed in whole or in part, in substitution for, addition to,
or in lieu of any tax which would otherwise constitute a Real Estate Tax, such
tax shall be included within the term "Real Estate Taxes," but only to the
extent that the same would be payable if the Property were the only property of
Landlord. Such tax may include, but shall not be limited to, a capital levy or
other tax on the gross rents or gross receipts with respect to the Property, or
a federal, state, county, municipal or other local income, franchise, profit,
excise or similar tax, assessment, levy or charge measured by or based, in whole
or in part, upon any such gross rents or gross receipts;
5.1.1.2. Real Estate Taxes shall also encompass all of
Landlord's expenses, including but not limited to attorney's fees and expenses,
incurred by Landlord in any effort to minimize Real Estate Taxes whether by
contesting proposed increases in assessments, applying for the benefit of any
tax abatement program available for the Property, appealing the denial of any
such tax abatement, or contesting any challenge to the validity of any tax
abatement program or its applicability to the Property or by any other means or
procedures appropriate in the circumstances; provided, however, that under no
circumstances shall Landlord have any obligation to undertake any contest,
appeal or other procedure to minimize Real Estate Taxes or to obtain or maintain
the benefits of any tax abatement program for the Property; and
5.1.1.3. except as otherwise provided in Subsection 5.1.1.1
above, there shall be excluded from Real Estate Taxes all net income, excess
profit, excise, franchise, estate, succession and inheritance taxes, penalties
due to Landlord's lateness or failure to pay taxes when due and transfer taxes
imposed on Landlord.
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5.1.2. "Tenant's Tax Share" shall be that percentage of Real
Estate Taxes which is equal to the ratio of the Rentable Area of the Premises
(as the same may change from time to time) to the total Rentable Area contained
in the Building. As of the date of this Lease, Tenant's Tax Share for the entire
Premises is 35.60%, and Tenant's Tax Share for Phase I is 28.27%.
5.1.3. "Tax Year" shall mean each calendar year, or such other
period of twelve (12) months as now or hereafter may be duly adopted as the
fiscal year for real estate tax purposes of the governmental unit in which the
Property is located, occurring during the term of this Lease.
5.1.4. "Tax Statement" shall mean a statement provided by
Landlord, setting forth: (a) the Real Estate Taxes for any Tax Year, (b)
Tenant's Tax Payment (defined in Section 5.2) owing on account thereof, prorated
if only a part of the Tax Year falls within the Term of this Lease; and (c) the
amount by which the Tenant's Tax Payment exceeds (or is less than) payments made
by Tenant pursuant to Sections 5.2.2 and 5.2.3 below for the specified Tax Year
or portions thereof.
5.2. Payment of Tenant's Tax Payment. During each Tax Year subsequent to
the Base Year, Tenant shall pay to Landlord, as additional rent hereunder, an
amount equal to Tenant's Tax Share of the total dollar increase, if any, in Real
Estate Taxes for such year over Real Estate Taxes for the Base Year (taking into
account any abatement of Real Estate Taxes which benefited the Property during
the Base Year or such subsequent year), prorated for any partial Tax Year within
the Term ("Tenant's Tax Payment"). Tenant's Tax Payment for each year shall be
paid as follows:
5.2.1. After receipt of a Real Estate Tax xxxx, Landlord shall
furnish Tenant a Tax Statement as hereinabove defined. Within thirty (30) days
following the receipt of such Tax Statement, Tenant shall pay to Landlord the
amount, if any, by which the Tenant's Tax Payment for such Tax Year exceeds the
total amount, if any, of payments made pursuant to Subsection 5.2.3 below on
account of the Tenant's Tax Payment as shown on the Tax Statement.
5.2.2. Notwithstanding the foregoing Section 5.2.1, if at any time
after execution of this Lease Landlord receives a Real Estate Tax xxxx for taxes
in excess of the Real Estate Taxes for the preceding Tax Year or a notice of any
governmental action which could effect an increase in Real Estate Taxes over the
Real Estate Taxes for the preceding Tax Year including, but not limited to,
notice of any increase in assessment or of a forthcoming increase in the real
estate tax rate, or notice, providing that the Property is not entitled to the
benefit of any tax abatement program pursuant to which Landlord has previously
determined the Tenant's Tax Payment, or that the validity of any tax abatement
program applicable to the Property has been challenged by appropriate legal
proceedings, Landlord may notify Tenant that Landlord elects to increase the
installments presently being paid by Tenant pursuant to Subsection 5.2.3 below.
Landlord's notice shall be in writing and shall specify the amount due, or
estimated to become
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due, and the amount of each installment or increased installment to be paid by
Tenant. Payments in the amount of the installment (or increase in installment)
set forth in Landlord's notice shall be due monthly as Additional Rent
concurrently with payments of Minimum Rent beginning with such first payment due
after the date of Landlord's notice, and shall continue on the first day of each
month until and including the month in which Tenant makes payment in full of
Tenant's Tax Payment.
5.2.3. Tenant shall pay one twelfth (1/12) of the Tenant's Tax
Payment on account of the Real Estate Taxes for the preceding Tax Year monthly,
together with payments of Minimum Rent, as an estimate and on account of the
Tenant's Tax Payment for the current Tax Year, which payments shall be subject
to increase upon receipt by Tenant of a notice from Landlord pursuant to
Subsection 5.2.2 above increasing the amount of monthly estimated payments.
5.2.4. Real Estate Taxes with respect to a Tax Year which is the
subject of an appeal filed by or on behalf of Landlord shall be paid on the
basis of the amount reflected in the tax xxxx and shall not be adjusted until
the final determination of the appeal. Upon such determination of any appeal,
Landlord will notify Tenant in writing of the actual amount of Tenant's Tax
Payment owing for the year or years which were the subject of the appeal and the
amount, if any, remaining due by Tenant in excess of Tenant's estimated
payments. Tenant shall pay such entire amount so due on the due date for the
next installment of Minimum Rent, or if this Lease has terminated, Tenant shall
pay the amount due within thirty (30) days after receipt of Landlord's notice.
If the final determination of the appeal results in a reduction of the Real
Estate Taxes at issue and Landlord receives a cash refund from the taxing
authority on account of overpayment of Real Estate Taxes for such year, Tenant
shall receive a credit against the installment of Minimum Rent next coming due
in the amount by which Tenant's payments on account of Tenant's Tax Payment
exceeded the payments actually due for the applicable year, or if the Term of
the Lease has expired, Landlord shall refund to Tenant the amount of any such
overpayment promptly following Landlord's determination of the amount due to
Tenant.
5.2.5. If Tenant shall pay any Tenant's Tax Payment for any periods
which were calculated on the basis of the qualification of the Property for a
tax abatement program, and subsequently it is determined that for such periods
or any portion thereof the Property was not entitled to the benefit of such
program or that such program was invalid and a retroactive assessment is made,
then Tenant's Tax Payment for such periods shall be recomputed on the basis of
the actual amount of Real Estate Taxes required to be paid in the absence of
abatement. Landlord will notify Tenant in writing both of any additional amounts
due (the "Deficiencies") by Tenant by reason of such recalculations of Tenant's
Tax Payment for such periods in excess of Tenant's previous payments of Tenant's
Tax Payment and of the amount of any increase in installments payable by Tenant
pursuant to Subsection 5.2.3 above for the balance of the current Tax Year.
Tenant shall pay the entire amount of the Deficiencies by the due date of the
next installment of Minimum Rent due Landlord.
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5.2.6. Any Tax Statement or other notice from Landlord pursuant to
this Section 5 shall be deemed approved by Tenant as correct unless within sixty
(60) days after the furnishing thereof, Tenant shall notify Landlord in writing
that it disputes the correctness of the Tax Statement or other notice,
specifying in detail the basis for such assertion. Pending the resolution of
such dispute, however, Tenant shall make payments in accordance with said Tax
Statement or other notice.
6. Operating Expenses.
6.1. Definitions.
As used in this Section 6 the following terms shall be defined as
hereinafter provided:
6.1.1. "Operating Year" shall mean each calendar year, or such
other period of twelve (12) months as hereafter may be adopted by Landlord as
its fiscal year, occurring either in whole or in part during the Term of this
Lease.
6.1.2. "Tenant's Expense Share" shall be that percentage of
Operating Expenses derived by dividing the Rentable Area contained within the
Premises (as the same may from time to time increase or decrease) by the
Rentable Area contained in the Building. As of the date of this Lease, Tenant's
Expense Share for the entire Premises is 35.60%, and Tenant's Expense Share for
Phase I is 28.27%.
6.1.3. "Operating Expenses" shall mean the expenses incurred by
Landlord in connection with the operation, repair, maintenance, protection and
management of the Property, including by way of example rather than of
limitation, the following:
6.1.3.1. Wages, salaries, fees and other compensation and
payments, payroll taxes, contributions to any social security, unemployment
insurance, welfare, pension or similar fund and payments for other fringe
benefits made to or on behalf of any and all employees of Landlord performing
services rendered in connection with the operation, repair, maintenance,
protection and management of the Property, including, without limitation:
elevator operators; elevator starters; window cleaners; porters; janitors;
maids; miscellaneous handymen; watchmen; persons engaged in patrolling and
protecting the Property; carpenters; engineers; firemen; mechanics;
electricians; plumbers; landscapers; insurance risk managers; building
superintendent and assistants; building or general manager; and clerical,
accounting and administrative personnel. Landlord may contract for any of the
foregoing to be performed by independent contractors, in which event all sums
paid to such independent contractors shall be included within Operating Expenses
pursuant to Subsection 6.1.4.20 below.
6.1.3.2. The cost of employee uniforms, and the cleaning,
pressing and repair thereof.
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6.1.3.3. Cleaning costs for the Property, including the
facade, windows and sidewalks, all costs for snow and rubbish removal and the
costs of all labor, supplies, equipment and materials incidental to such
cleaning.
6.1.3.4. Premiums and other charges incurred by Landlord
with respect to all insurance relating to the Property and the operation and
maintenance thereof, including without limitation: all risk of physical damage
or fire and extended coverage insurance; public liability insurance; elevator
insurance; workmen's compensation insurance; boiler and machinery insurance;
sprinkler leakage insurance; rent insurance; and health, accident and group life
insurance for employees.
6.1.3.5. The cost of heat, water, sewer and all other
utility services, servicing the Building generally, as well as the cost of
electricity consumed during Business Hours by HVAC equipment serving more than a
single floor of the Building (such as, but not limited to, the condensor water
system pumps, cooling tower fan and fresh air fans located within the Building
core) (the cost of electricity for HVAC equipment serving only a given floor
being billed directly to the tenant or tenants of such floor pursuant to Section
8.8, or the equivalent, of their respective leases).
6.1.3.6. Costs (other than utilities costs, which are
provided for in Subsection 6.1.3.5 above) incurred for operation, service,
maintenance, inspection, repairs and alterations of the Property, including the
heating, air-conditioning, ventilating, plumbing, outdoor underground heating
coils, electrical and elevator systems of the Building and the costs of labor,
materials, supplies and equipment used in connection with all of the aforesaid
items.
6.1.3.7. Sales and excise taxes and the like upon any of the
expenses enumerated herein.
6.1.3.8. Management fees of the managing agent for the
Building, if any.
6.1.3.9. The cost of tools, equipment, and supplies and any
replacement thereof.
6.1.3.10. The cost of repainting or otherwise redecorating
any part of the Building other than premises demised to tenants in the Building.
6.1.3.11. Displays or decorations for the lobby, balconies
and other public portions of the Property.
6.1.3.12. Dues paid to associations representing landlords,
such as BOMA.
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6.1.3.13. The cost of telephone, telecopier and courier
services, postage and delivery charges, office supplies, maintenance and repair
of office equipment, and similar costs.
6.1.3.14. The cost of licenses, permits and similar fees and
charges.
6.1.3.15. Auditing and accounting fees including accounting
fees incurred in connection with the preparation and certification of the Tax
Statements and the Operating Expense Statements specified in Sections 5 and 6 of
this Lease.
6.1.3.16. All costs incurred by Landlord to comply with
governmental requirements, whether federal, state or municipal; and all repairs,
replacements and improvements which are appropriate for the continued operation
of the Building, including without limitation capital expenditures which under
generally applied real estate accounting practice are expensed or are regarded
as deferred expenses.
6.1.3.17. All costs and expenses associated with the
acquisition and installation of any energy or cost saving devices.
6.1.3.18. Fair market rental and other costs with respect to
the management office for the Building.
6.1.3.19. Intentionally Omitted.
6.1.3.20. Cost of independent contractors performing
services, including, but not limited to, cleaning, janitorial, window-washing,
rubbish removal, security, landscaping, snow and ice removal services,
electrical, painting, plumbing, elevator, heating, ventilation and air
conditioning maintenance and repair and all fees due such independent
contractors.
6.1.3.21. Legal fees with respect to the Property other than
those incurred in the negotiation of tenant leases.
6.1.3.22. Capital expenditures necessitated by casualties to
the extent of the deductible under Landlord's policy of casualty insurance.
6.1.3.23. Any and all other expenditures of Landlord which
are properly expenses in accordance with generally accepted accounting
principles consistently applied with respect to the operation, repair,
maintenance, protection and management of first-class office buildings in the
City of Fort Washington, Pennsylvania.
6.1.3.24. If Landlord shall purchase any item of capital
equipment or make any capital expenditure as described in Subsections 6.1.3.16,
6.1.3.17, or 6.1.3.22 above
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(a "Capital Expenditure"), the total cost of which is not included in Operating
Expenses for the Operating Year in which it was made, Landlord may include in
Operating Expenses for the Operating Year in which such Capital Expenditure was
made, and in Operating Expenses for each succeeding Operating Year, an annual
charge-off of such Capital Expenditure. Annual charge-offs shall be determined
by dividing the original Capital Expenditure plus an interest factor, reasonably
determined by Landlord as being the interest rate then being charged for
long-term mortgages by institutional lenders on like properties within the
locality in which the Building is located, by the number of years of useful life
of the improvement, repair, alteration or replacement made with the Capital
Expenditure; and the useful life shall be determined reasonably by Landlord in
accordance with then prevailing customs and practices of the real estate
industry in the greater Fort Washington area, consistently applied. If Landlord
shall lease such items of capital equipment, then the lease shall be included in
Operating Expenses for each Operating Year in which they are incurred.
Notwithstanding the foregoing, if Landlord shall effectuate savings in labor or
energy-related costs as a result of the installation of new devices or
equipment, then Landlord may, in lieu of the above, elect to include up to the
full amount of any such savings in each Operating Year (beginning with the
Operating Year in which the equipment is placed in service) as an Operating
Expense until Landlord has recovered thereby the cost of installation of said
devices or equipment and interest thereon as above provided, even if the result
of such application will result in the amortization of such costs over a period
shorter than the useful life of such installation. Landlord shall notify Tenant
in writing if Landlord elects to apply such savings to the cost of such
equipment and shall include a statement of the amount of such savings in the
Operating Expense Statement for each applicable Operating Year. Operating
Expenses shall thereafter be reduced by the amount of any previous capital
expenditures included therein expensed pursuant to this Subsection 6.1.3.24 when
such amortization has been completed.
6.1.3.25. Notwithstanding the provisions of this Subsection
6.1.3, Landlord shall reasonably calculate and allocate Operating Expenses among
the Office Space, Retail Space, Garage Space and Storage Space, and Tenant's
Share shall be applied only against that portion of the Operating Expenses which
are allocated to the Office Space and not to those portions allocated to the
Retail Space, Garage Space and Storage Space.
6.1.4. Operating Expenses shall be "net" and, for that purpose,
shall be reduced by the amounts of any reimbursement or credit received by
Landlord with respect to an item of cost that is included within Operating
Expenses (other than reimbursements to Landlord by tenants of the Building
pursuant either to operating expense provisions of any lease or separate
contractual arrangements).
6.1.5. In determining Operating Expenses for any Operating Year
during which less than ninety five percent (95%) of the Rentable Area of the
Building shall have been occupied by tenants for more than thirty (30) days
during such year, the actual Operating Expenses for such year shall be increased
to the amount which normally would have been incurred for such Operating Year
had such occupancy of the Building been one hundred percent
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(100%) throughout such Operating Year, as reasonably determined by Landlord. The
operation of this Section 6.1.5 shall not result in Tenant paying any item of
Operating Expenses more than once.
6.1.6. Notwithstanding the provisions of Section 6.1.4, "Operating
Expenses" shall not include expenditures for any of the following:
6.1.6.1. Any capital expenditure (determined in accordance
with generally accepted real estate accounting principles), except as set forth
in Subsections 6.1.3.16, 6.1.3.17 or 6.1.3.22 above.
6.1.6.2. Repairs or other work occasioned by fire, windstorm
or other insured casualty or hazard, in an amount greater than the deductible
under Landlord's policy of casualty insurance.
6.1.6.3. Leasing commissions and advertising expenses
incurred in leasing or procuring new tenants.
6.1.6.4. Repairs or rebuilding necessitated by condemnation
to the extent that Landlord has received condemnation proceeds for such repairs
or rebuilding.
6.1.6.5. Depreciation and amortization of the Building,
other than as permitted pursuant to Subsection 6.1.3.24.
6.1.6.6. Real Estate Taxes.
6.1.6.7. The salaries and benefits of executive officers of
Landlord, if any.
6.1.6.8. Debt service payments on any indebtedness
applicable to the Property, including any mortgage debt, or ground rents payable
under any ground lease for the Property.
6.1.7. "Monthly Operating Expense Estimate" shall have the meaning
specified in Subsection 6.2.1.1 hereof.
6.1.8. "Operating Expense Statement" shall mean a statement
provided by Landlord, setting forth in reasonable detail: (a) the Operating
Expenses for the Operating Year (or portion thereof if less than a full
Operating Year) immediately preceding the Operating Year in which the statement
is issued, reasonably detailed by major categories, (b) the Tenant's Expense
Payment (defined in Section 6.2) for such preceding Operating Year, prorated if
only a part of the Operating Year falls within the term of this Lease, (c) the
amount of payments made by Tenant on account of the Tenant's Expense Payment
during such preceding Operating Year, (d) the amount of payments of the Monthly
Operating Expense Estimate made by Tenant in the
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Operating Year in which the Expense Statement is issued, and (e) the Monthly
Operating Expense Estimate for the Operating Year in which the Operating Expense
Statement is issued.
6.2. Tenant's Expense Payment. During each Operating Year subsequent to
the Base Year, Tenant shall pay to Landlord as Additional Rent hereunder an
amount equal to Tenant's Expense Share of the total dollar increase, if any, in
Operating Expenses for such Expense Year over Operating Expenses for the Base
Year ("Tenant's Expense Payment"). For any portion of an Operating Year less
than a full twelve (12) month period occurring within the Term of this Lease,
Tenant's Expense Payment shall be prorated on a per diem basis.
6.2.1. Such Additional Rent shall be paid (or credited) in the
following manner:
6.2.1.1. Beginning with the Lease Commencement Date and
continuing thereafter on the first day of each month until receipt of the
Operating Expense Statement with respect to the Operating Year during which
Lease Commencement Date occurs, Tenant will pay Landlord an amount set by
Landlord sufficient to pay Landlord's estimate (reasonably based on the actual
Operating Expenses for the preceding Operating Year and Landlord's projections
of any anticipated increases or decreases thereof) of Tenant's Expense Payment
for the current Operating Year (or remaining portion thereof) (the "Monthly
Operating Expense Estimate"). The Monthly Operating Expense Estimate for a
period less than a full calendar month shall be duly prorated.
6.2.1.2. Following the end of each Operating Year, Landlord
shall furnish Tenant an Operating Expense Statement setting forth the
information described in Subsection 6.1.8 above. Within thirty (30) days
following the receipt of such Operating Expense Statement (the "Expense Share
Date") Tenant shall pay to Landlord: (i) the amount by which the Tenant's
Expense Payment for the Operating Year (or portion thereof) covered by the
Operating Expense Statement exceeds the aggregate of Monthly Operating Expense
Estimates paid by Tenant with respect to such Operating Year (or portion
thereof); and (ii) the amount by which the Monthly Operating Expense Estimate
for the current Operating Year as shown on the Operating Expense Statement
multiplied by the number of months elapsed in the current Operating Year
(including the month in which payment is made) exceeds the aggregate amount of
payments of the Monthly Operating Expense Estimate theretofore made in the
Operating Year in which the Operating Expense Statement is issued. Landlord
shall diligently endeavor to furnish Tenant an Operating Expense Statement not
later than one hundred and twenty (120) days following the end of each Operating
Year.
6.2.1.3. On the first day of the first month following
receipt by Tenant of any annual Operating Expense Statement and continuing
thereafter on the first day of each succeeding month until the issuance of the
next ensuing Operating Expense Statement, Tenant shall pay Landlord the amount
of the Monthly Operating Expense Estimate shown on the Operating Expense
Statement.
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6.2.1.4. If on any Expense Share Date Tenant's payments of
the installments of the Monthly Operating Expense Estimate for the preceding or
current year's Operating Expenses are greater than the actual Operating Expenses
for such preceding Operating Year or Monthly Operating Expense Estimate for the
current year, Landlord shall credit Tenant with any excess, which credit may be
offset by Tenant against next due installments of Rent. If the term of the Lease
has expired prior to the Expense Share Date for the applicable Operating Year
and if Tenant's payments of Monthly Operating Expense Estimate either exceed or
are less than Tenant's Expense Payment, Landlord shall send the Operating
Expense Statement to Tenant, and an appropriate payment from Tenant to Landlord
or refund from Landlord to Tenant shall be made on the Expense Share Date. The
provisions of this Subsection 6.2.1.4 shall remain in effect notwithstanding any
termination of this Lease; provided however, that if upon termination of this
Lease Tenant owes Landlord any sums under this Lease (for Rent or otherwise),
Landlord shall have the right to reduce the amount of any refund due Tenant
under this Section 6.2.1.4 against such sums owed by Tenant to Landlord.
6.2.2. Any Operating Expense Statement or other notice from
Landlord pursuant to this Section 6 shall be deemed approved by Tenant as
correct unless, within sixty (60) days after the furnishing thereof, Tenant
shall notify Landlord in writing that it disputes the correctness of the
Operating Expense Statement or other notice, specifying in detail the bases for
such assertion. Notwithstanding any dispute concerning any Operating Expense
Statement or other notice, Tenant shall continue to make payments in accordance
with said Operating Expense Statement or other notice pending the resolution of
such dispute.
7. Improvement of the Premises.
7.1. Construction Documents. Landlord and Tenant hereby approve the four
pages consisting of plans, specifications and certain letters from Xxxxxxx
Interior Systems, Inc. and American Building Contractors, Inc. attached hereto
as Exhibit "G" and hereby made a part hereof (collectively, the "Construction
Documents"), which detail the initial improvements to be constructed within the
Premises by Landlord as hereinafter set forth. Neither Landlord's approval of
the Construction Documents, nor Landlord's performance, supervision or
monitoring of the construction of the Tenant Work (defined in Section 7.5
hereof) shall constitute a warranty by Landlord to Tenant of the accuracy of the
design for Tenant's intended use of the Premises.
7.2. Tenant's Construction Representative. Prior to the commencement of
any design documentation, the Tenant, by notice to Landlord in writing, shall
designate a single individual as the "Tenant's Construction Representative," who
Tenant agrees shall be available to meet and consult with Landlord on a
continuing basis at the Premises as Tenant's representative concerning the
matters which are the subject of this Section 7 and who, as between Landlord and
Tenant, shall have the power legally to bind Tenant in giving direction to
Landlord respecting the Construction Documents and the Tenant Work, in giving
approvals of design documents and work, and in making requests and approval for
changes.
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7.3. [Intentionally omitted.]
7.4. Tenant Delays. Each of the following shall constitute a "Tenant
Delay":
7.4.1. [Intentionally omitted.]
7.4.2. Any failure by Tenant to furnish any required notice, plan,
drawing, information, approval or consent within any respective required time
period as set forth in this Section 7 or elsewhere in this Lease or in a written
notice from Landlord at the time requested.
7.4.3. [Intentionally omitted.]
7.4.4. [Intentionally omitted.]
7.4.5. Any changes to the Construction Documents which changes are
made or requested by Tenant, or any changes to the Tenant Work itself, provided
that if Tenant's request for a change to the Tenant Work is specifically
conditioned upon its approval of Landlord's estimate of such delay, Landlord
shall promptly notify Tenant of Landlord's good-faith estimate of the
anticipated delay, and the change shall not be placed into effect until Tenant
shall have approved such estimated delay.
7.4.6. Delays in furnishing materials, services, supplies, labor or
components required by the Tenant.
7.4.7. Delays caused by the performance of or failure to perform
any work or by any activity in the Premises by Tenant or any of its employees,
agents, or contractors.
7.4.8. Delays caused by any fault of Tenant or its agents,
employees or contractors, including its architect and other designers and
consultants.
7.5. Tenant Work Defined. Landlord shall, in a good and workmanlike
manner, cause each Phase of the Premises to be improved and completed at
Tenant's expense (subject to the Construction Allowance as hereinafter provided)
and in accordance with the Construction Documents, which work (including
materials, supplies, components, labor and services therefor) is herein referred
to as the "Tenant Work". Landlord reserves the right, however, (a) to make
substitutions of material or components of equivalent grade and quality when and
if any specified material or component shall not be readily or reasonably
available, and (b) to make changes to the work necessitated by conditions met in
the course of construction, provided that if Landlord believes any change is
material and substantial in nature, then Tenant's approval of such change shall
first be obtained (which approval shall not be unreasonably withheld so long as
there shall be general conformity with Tenant's Construction Documents and shall
be deemed given unless withheld in writing within five (5) days following
Landlord's request therefor).
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7.6. Landlord's Contractor. The Tenant Work is to be performed by
Landlord's contractor, which shall be either Xxxxxx Construction, Inc. or
Xxxxxxx Construction, Inc., as selected by Landlord.
7.7. Tenant's Construction Representative's Access, Inspection, and
Approval.
7.7.1. Landlord, upon reasonable notice, shall afford Tenant and
Tenant's Construction Representative or agent(s) access to the Premises, at
reasonable times during the course of construction and at Tenant's sole risk and
expense, for the purposes of inspecting and verifying the performance of any
work completed or in progress, and of taking field measurements. Tenant's
Construction Representative shall visit the Premises at intervals appropriate to
the stage of construction of work, so as to become familiar with the progress,
quantity and quality of such work, and shall inspect and verify the performance
of all work done by Landlord on a continuing basis so that Tenant's Construction
Representative is able to certify the full extent of the work completed.
7.7.2. Tenant's Construction Representative, upon receiving from
Landlord a voucher or such other request for payment by Landlord's contractor
("Application for Payment"), shall visit the Premises to determine that the
progress, quantity and quality of work done by Landlord or on behalf of Landlord
is consistent with the Tenant Construction Documents, and that the amount
invoiced is correct and acceptable.
7.7.3. Tenant's Construction Representative shall approve, sign and
return to Landlord the Application for Payment within five (5) business days of
receipt thereof or advise Landlord within the same five (5) business day period
of any portion of the invoice which is not approved. Tenant's Construction
Representative shall advise Landlord verbally and in writing of any objection to
the performance of such work. Landlord shall promptly undertake and diligently
prosecute the correction of any defective work performed by Landlord of which it
is notified in writing as aforesaid, unless such work is a result of defective
design or incomplete or uncoordinated Tenant Construction Documents. When
Tenant's Construction Representative provides to Landlord the signed Application
for Payment or a modified and signed version thereof, Tenant has agreed that all
work so certified is in conformance with the Tenant's Construction Documents.
7.7.4. As to all Tenant Work within a Phase, performed by or on
behalf of Landlord and not objected to by Tenant in accordance with this Section
7, it shall be conclusively deemed on the Substantial Completion Date for that
Phase that such work was satisfactorily performed in accordance with and meets
the requirements of this Lease; provided, however, that, except as to any item
of work performed by or for Tenant and work performed by or on behalf of
Landlord in accordance with the Tenant's Construction Documents to the extent
such work was defectively designed by Tenant's architect's or engineers (as to
which Landlord shall have no liability in any event), the foregoing presumption
shall not apply: (i) to latent defects in such work which could not reasonably
have been discovered by the Substantial
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Completion Date, provided Tenant notifies Landlord thereof within ninety (90)
days after the Substantial Completion Date, or (ii) to defects discoverable by a
visual inspection or by ordinary use of the Premises for the purpose for which
it is leased herein, provided Tenant notifies Landlord thereof within thirty
(30) days after the Substantial Completion Date. As to any item of Tenant Work
within a Phase remaining to be completed hereunder after the Substantial
Completion Date for that Phase, Landlord shall complete such item within thirty
(30) days after Tenant's notice thereof (except for items which cannot
reasonably be completed within such thirty (30) day period, which items shall be
completed as promptly as practicable using diligent efforts thereafter).
7.8. Payment of Tenant's Share of Landlord's Cost.
7.8.1. As used herein, the term "Landlord's Cost" shall mean the
sum of (i) Landlord's out-of-pocket contract or purchase price(s) for materials,
components, labor, change orders, services, insurance requirements, "general
conditions", permits, and all other costs necessary to complete the Tenant Work,
plus (ii) Landlord's professional, designer, architectural and engineering fees
(if applicable) and costs, including, without limitation, the cost of review,
preparation and revisions to drawings and other plans relating to the Tenant
Work, plus (iii) legal fees incurred in connection with preparation and/or
negotiating any construction contracts therefor, plus (iv) an amount equal to
five percent (5%) of the aggregate of the foregoing costs as compensation to
Landlord for administration and supervision.
7.8.2. Landlord shall allocate the Construction Allowance to each
Phase, in an amount equal to $7.00 per Rentable Square Foot of that Phase, such
allocation to be set forth in the Confirmation Memorandum. Only that portion of
the Construction Allowance so allocated to a given Phase shall be expended by
Landlord for the payment of Landlord's Cost for that Phase and for reimbursement
of Tenant's costs of producing construction documentation as permitted under
Section 7.3.5, above. After such time as the Construction Allowance for a given
Phase shall be exhausted, Tenant shall pay Landlord for Landlord's Cost
respecting that Phase from time to time during the progress of the work, within
ten (10) business days after receipt of each of Landlord's invoices therefor, in
amounts representing (A) Landlord's Cost in excess of the Construction Allowance
for the Tenant Work theretofore performed (including without limitation, for
this purpose, materials or components delivered to the Property to the date of
the invoice), less (B) except as otherwise provided in Section 7.8.4 below (and
excluding the amounts deposited by Tenant under Section 7.8.4 below) the amounts
theretofore paid by Tenant on account of such excess.
7.8.3. Each such payment by Tenant (set forth in Paragraph 7.8.2)
shall be accompanied by a certificate duly executed and sworn to by Tenant's
architect or Tenant's Construction Representative stating that: based on site
inspections and the data comprising the invoice requested for payment by
Landlord, the Tenant Work has progressed to the point indicated and the quality
and condition of the Tenant Work theretofore completed, or in the process of
completion as of the date of such certificate, is in accordance with the
Construction
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Documents and with all construction and other contracts pertaining thereto; and
that Landlord's contractor is entitled to the amount so certified.
7.8.4. Landlord may require that, before Landlord commences any
Tenant Work in a given Phase, Tenant shall pay to Landlord one hundred percent
(100%) of the amount by which Landlord's Cost for that Phase is estimated by
Landlord to exceed the Construction Allowance for that Phase, which amount shall
be applied by Landlord against the cost of the last of the Tenant Work in that
Phase to be paid for by Tenant.
7.8.5. Following payment by Landlord to Landlord's contractor of
the final invoice for all Tenant Work, (i) Landlord shall promptly examine its
records to confirm Landlord's Cost and the amounts therefore paid by Tenant to
Landlord for Tenant Work, and (ii) Landlord shall, following reasonable prior
written request from Tenant, permit Tenant or Tenant's representatives access to
such records for purposes of auditing the Landlord's Costs.
7.8.6. In the event that, upon completion of the Tenant Work within
a given Phase, any portion of the Construction Allowance for that Phase shall
remain unexpended by Landlord, Tenant shall have the right to draw upon such
excess as herein provided. Tenant shall submit to Landlord paid invoices,
canceled checks or other evidence of Tenant's having incurred and paid costs and
expenses relating to Tenant's move into the Phase in question or Tenant's
purchase and installation of furniture, fixtures and equipment (including
related wiring) within such Phase and, until such excess Construction Allowance
is exhausted, Landlord shall reimburse such sums to Tenant therefrom, in each
case within thirty (30) days following Landlord's receipt and approval of
Tenant's request.
7.9. Additional Work.
7.9.1. During construction of the Tenant Work for a given Phase,
upon Tenant's request and submission by Tenant (at Tenant's sole cost and
expense) of the necessary information and/or plans and specifications for work
within that Phase other than the Tenant Work described in the approved
Construction Documents for that Phase ("Additional Work") and the approval by
Landlord of such Additional Work, which approval Landlord agrees shall not be
unreasonably withheld, Landlord shall perform such Additional Work, at Tenant's
sole cost and expense, subject, however, to the following provisions of this
Section 7.9. Prior to commencing any Additional Work requested by Tenant,
Landlord shall submit to Tenant a written statement of the cost of such
Additional Work, and an additional charge payable to Landlord in the amount of
5% of the total Cost of the Work as compensation for Landlord's general
conditions (such fee and additional charge being hereinafter referred to
collectively as "Landlord's Additional Compensation") and, concurrently with
such statement of cost, Landlord shall also submit to Tenant a proposed tenant
extra order (the "TEO") for the Additional Work in the standard form then in use
by Landlord. Tenant shall execute and deliver to Landlord such TEO and shall pay
to Landlord the entire cost of the Additional Work, including Landlord's
Additional Compensation (as reflected in Landlord's statement of such cost),
within five (5) days
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after Landlord's submission of such statement and TEO to Tenant. If Tenant fails
to execute or deliver such TEO or pay the entire cost of such Additional Work
within such 5-day period, then Landlord shall not be obligated to do any of the
Additional Work and may proceed to do only the Tenant Work, as specified in the
approved Construction Documents.
7.9.2. Without limiting the generality of the foregoing, Tenant
acknowledges that Landlord may disapprove Additional Work requested by Tenant
under this Section 7.9 because the work requested: (a) is likely to adversely
affect Building systems, the structure of the Building or the safety of the
Building and/or its occupants; (b) might impair Landlord's ability to furnish
services to Tenant or other tenants in the Building; (c) would increase the cost
of operating the Building; (d) would violate any governmental laws, rules or
ordinances (or interpretations thereof); (e) contains or uses hazardous or toxic
materials or substances; (f) would adversely affect the appearance of the
Building; (g) might adversely affect another tenant's premises; (h) is
prohibited by any ground lease affecting the Building or any mortgage, trust
deed or other instrument encumbering the Building; or (i) is likely to be
substantially delayed because of unavailability or shortage of labor or
materials necessary to perform such work or the difficulties or unusual nature
of such work. The foregoing reasons, however, shall not be the only reasons for
which Landlord may withhold its approval, whether or not such other reasons are
similar or dissimilar to the foregoing. Neither the approval by Landlord of the
Additional Work or any plans, drawings, specifications or other items associated
with the Additional Work, nor Landlord's performance, supervision or monitoring
of the Additional Work, shall constitute any warranty by Landlord to Tenant of
the adequacy of the design for Tenant's intended use of the Premises.
7.10. Tenant's Contractors. During the Term of this Lease, whenever
Tenant makes any alterations and improvements or performs any other work of any
kind within the Premises through the services of any contractor or contractors,
the following conditions shall be fulfilled, and Tenant, by undertaking to have
such work performed by its contractor or contractors, shall be deemed to have
agreed to cause such conditions to be fulfilled:
7.10.1. Prior to commencing any such work, Tenant shall (a) furnish
Landlord with a written description of the proposed work and reasonably detailed
plans and specifications therefor and (b) obtain the approval of Landlord, in
writing, for the specific work it proposes to perform and all such plans and
specifications.
7.10.2. The work shall be performed at Tenant's expense by
responsible contractors and subcontractors approved in advance by Landlord, who
shall not in Landlord's sole opinion, and who in fact do not, prejudice
Landlord's relationship with Landlord's contractors or subcontractors or the
relationship between such contractors and their subcontractors or employees, or
disturb harmonious labor relations. Tenant's contractors and subcontractors
shall comply with all insurance requirements and undertakings set forth in
Exhibit "E" attached hereto, as the same may be changed by written notice from
Landlord to Tenant from time to time during the Term.
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7.10.3. Such contractors shall, prior to the commencement of their
work and not later than ten (10) days after the execution of their respective
contracts, file waivers of mechanic's liens in the appropriate public office,
which waivers shall be effective to preclude the filing of any mechanic's liens
on account of the work to be performed by any of Tenant's contractors,
subcontractors or materialmen.
7.10.4. No such work shall be performed in such manner or at such
times as to interfere with any work being done by any of Landlord's contractors
or subcontractors in the Premises or in or about the Property generally.
Landlord shall, however, endeavor to allow Tenant access for such work at the
earliest time after the Substantial Completion Date, consistent with the
restrictions of this Section 7.10. Tenant's contractors and subcontractors shall
be subject to the decisions of Landlord's contractor as to such matters and as
to avoidance of interference with other tenants of the Building or the work of
other tenants' contractors and subcontractors, but Landlord's contractor shall
not be responsible for any aspect of the work performed by Tenant's contractors
or subcontractors or for the coordination of the work of Landlord's contractors
or others with Tenant's contractors.
7.10.5. Except as otherwise set forth in this Section 7.10, all
such work shall be subject to the requirements and provisions of Sections 10.6,
10.7 and 25 of this Lease.
7.10.6. Tenant and its contractors and subcontractors shall be
solely responsible for the transportation, safekeeping and storage of materials
and equipment used in the performance of their work, for the removal of waste
and debris resulting therefrom, and for any damage caused by them to any
installations or work performed by Landlord's, or any other tenant's,
contractors and subcontractors.
8. Services.
Landlord agrees that in consideration of Tenant's performance of its
obligations under this Lease and so long as Tenant is not in default under this
Lease, Landlord shall provide services after the Rent Commencement Date as
follows:
8.1. HVAC. Heat or air-conditioning to the Premises (depending on the
season) and ventilation (collectively, "HVAC") when required for comfortable
occupancy and use of the Premises, the cost of electricity for which shall be
included in electricity billed to Tenant per Section 8.8.1. The furnishing of
the foregoing heating, air-conditioning and ventilation services in accordance
with the standards hereinabove set forth shall be subject to any statute,
ordinance, rule, regulation, resolution or recommendation for energy
conservation which may be promulgated by any governmental agency or organization
which Landlord shall be required to abide by or in good faith may elect to
observe.
8.2. Elevators. Landlord shall provide self-service passenger elevator
service to the Premises, with one elevator subject to call at all times.
Landlord shall also provide freight
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elevator service, subject to such reasonable rules and regulations as to
availability and use as Landlord may hereafter promulgate from time to time.
8.3. Access. Tenant and its employees shall have access to the Premises
subject to compliance with such security measures as shall from time to time be
in effect for the Building.
8.4. Janitorial. Landlord shall provide janitorial services to the
Premises consistent with those set forth in the Cleaning Specifications attached
hereto as Exhibit D. Any and all additional or specialized janitorial services
desired by Tenant shall be contracted for by Tenant directly with Landlord's
independent janitorial contractor and the cost and payment thereof shall be the
sole responsibility of Tenant.
8.5. Landlord Repairs. Landlord shall make all necessary structural
repairs to the Building, all repairs which Landlord shall determine may be
needed to the mechanical, HVAC, electrical and plumbing systems in and servicing
the Premises and all repairs to exterior windows. In the event that any such
repair is required by reason of the negligence or abuse of Tenant or its agents,
employees, invitees or of any other person using the Premises with Tenant's
consent, express or implied, Landlord may make the repair and charge Tenant for
the costs thereof plus interest thereon at the Lease Interest Rate (as herein
defined) computed from the date such costs are incurred by Landlord until paid,
which costs and interest shall be due and payable following completion of the
repairs with the next installment of Minimum Rent thereafter due. Any repairs to
any non-building standard fixtures or other improvements installed or made by or
at the request of Tenant requiring maintenance or repairs of a type or nature
not customarily provided by Landlord to office tenants of the Building, and
necessary replacements of non-building standard fixtures or improvements, shall
be made by Landlord at Tenant's expense or, at Landlord's election, by
contractors engaged by Tenant and approved by Landlord, at Tenant's expense.
8.6. Water. Landlord shall provide water in reasonable quantities
consistent in Landlord's judgment with customary office usage for drinking,
lavatory and toilet purposes to be drawn from the bathrooms or other approved
fixtures within the Premises.
8.7. Public Areas. Landlord shall keep and maintain the public areas and
facilities of the Building reasonably clean and in good working order, and the
sidewalks adjoining the Building in reasonably good repair and, during Business
Hours, free from accumulations of snow and ice.
8.8. Electricity.
8.8.1. Landlord shall furnish, at Tenant's cost and expense, the
Premises with electric current for lighting and normal office use, and shall
replace light bulbs and tubes when required. The cost of replacement light
bulbs, tubes, lamps, and ballasts, plus the labor
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cost for such replacement, shall be paid by Tenant as Additional Rent. Tenant's
use of electric energy in the Premises shall not at any time exceed the safe
capacity of any of the electric conductors and equipment in or otherwise serving
the Premises. Tenant shall not, without Landlord's prior written consent in each
instance, connect to the Building's electric distribution system any fixtures,
appliances, equipment or machinery other than lamps, typewriters, desktop
computers, xerox machines, and similar small office machines nor make any
alterations or additions to the electric system of the Premises. Should Landlord
grant such consent, all additional lines, risers or other equipment required
therefor shall be provided by Landlord at Tenant's cost and expense. Landlord
may condition such consent upon the payment by Tenant of additional rent as
compensation for the additional consumption of electricity occasioned by the
operation of said equipment or machinery. Tenant agrees that its consumption of
electric energy in the Premises may at Landlord's election be submetered by
Landlord at Tenant's expense or, if no submeter shall be installed, then
Landlord shall reasonably calculate Tenant's consumption of electricity and
charge Tenant therefor. Tenant shall pay to Landlord the cost of all electrical
consumption billed by Landlord to Tenant hereunder (computed on the basis of the
average rate paid by Landlord to the utility company, including all surcharges,
taxes, fuel adjustments, transfer charges or similar charges paid by Landlord to
such utility) within ten (10) days after receipt of Landlord's xxxx, as
additional rent. Tenant agrees that if, in the future, it is required by the
Pennsylvania Public Utility Commission or by a Federal or state law or by
applicable tariff as a necessary condition to the supply of electric energy to
the Premises or any part thereof, to become the direct customer of the
applicable utility, Tenant will do so.
8.8.2. Landlord has advised Tenant that Philadelphia Electric
Company (the "Current Service Provider") is the utility company selected by
Landlord to provide electric service for the Building. Notwithstanding the
foregoing, if permitted bylaw, the Landlord shall have the right at any time
from time to time during the Term to either contract for service from a
different company or companies providing electricity service (each an "Alternate
Service Provider") or continue to contract for service from the Current Service
Provider. Tenant shall cooperate with Landlord, the Current Service Provider and
any Alternate Service Provider reasonable access to the Building's electric
lines, feeders, risers, wiring and any other machinery within the Premises.
8.9. Directory. Landlord shall maintain an electronic directory of
office tenants in the lobby area of the Building, on which shall be listed the
name of Tenant. Landlord will not impose a charge for preparing and installing
Tenant's initial listings on the lobby directory.
9. Limitation Regarding Services.
Landlord reserves the right, without any liability to Tenant and without
being in breach of any covenant of this Lease, to interrupt or suspend service
of any of the heating, ventilating, air-conditioning, electric, sanitary,
elevator or other Building systems serving the Premises, or the rendering of any
of the other services required of Landlord under this Lease,
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whenever and for so long as may be necessary by reason of accidents,
emergencies, strikes or the making of repairs or changes which Landlord is
required by this Lease, by law, or in good xxxxx xxxxx advisable to make or by
reason of difficulty in securing proper supplies of fuel, steam, water,
electricity, labor or supplies, or by reason of any cause beyond Landlord's
reasonable control, including, without limitation, (i) mechanical failure, (ii)
governmental restrictions on the use of materials or the use of any of the
Building's systems and (iii) any change, failure, interference, disruption or
defect in the supply or character of the electric energy furnished to the
Premises by the Current Service Provider or any alternate Service Provider. In
each instance, however, Landlord shall exercise reasonable diligence to
eliminate the cause of the interruption and to effect restoration of service.
Tenant shall not be entitled to any diminution or abatement of rent or other
compensation, or to assert that a constructive eviction has occurred, and this
Lease and all of the obligations of Tenant hereunder shall not be affected or
reduced nor shall Landlord be liable to Tenant in any way, by reason of the
interruption, stoppage or suspension of any of the Building's systems or
services arising out of any of the causes set forth in this Section.
Notwithstanding anything to the contrary hereinabove set forth, if any failure
to provide any service or utility required of Landlord under this Lease shall
continue for more than five (5) consecutive Business Days, and provided (i) such
failure was not caused by the negligence or willful misconduct of Tenant or
Tenant's employees, subtenants or contractors, and (ii) such failure renders all
or any material portion of the Premises untenantable (as evidenced by Tenant's
inability to conduct its business therein), then as Tenant's sole and exclusive
remedy for such failure, payments of Minimum Rent and payments on account of
Tenant's Tax Share of Real Estate Taxes and Tenant's Expense Share of Operating
Expenses shall be abated on a per diem basis, in proportion to the portion of
the Premises (if less than all) so rendered untenantable, commencing on the
sixth (6th) business day of such interruption and continuing thereafter for the
duration of such untenantability.
10. Care of Premises.
Tenant agrees that it shall comply with the following requirements:
10.1. Notice of Damage or Accident. Tenant shall give Landlord prompt
written notice of any accident in the Premises and of any breakage, defect or
failure in any of the systems or equipment serving the Premises.
10.2. Access to Landlord. Tenant shall give Landlord access to the
Premises at all reasonable times, without charge or diminution of rent and upon
reasonable prior notice (except that no prior notice shall be required in an
emergency), to enable Landlord:
10.2.1. to examine the same and to take any and all measures
(including inspections, repairs, additions and alterations and improvements to
the Premises or the Property as Landlord may deem necessary or advisable for the
preservation of the integrity, safety and good order of the Property or any part
thereof, or of Landlord's interests, or as may be necessary
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or desirable in the operation or improvement of the Property or in order to
comply with laws, orders and requirements of governmental or other authorities;
and
10.2.2. to show the Premises to prospective mortgagees, assignees
and purchasers and to others having a legitimate interest therein (and to
prospective tenants of the Premises as well during the one (1) year period prior
to expiration of the Term hereof).
10.3. Condition. Tenant at its sole cost and expense shall maintain the
Premises and all fixtures and appurtenances thereto including, but not limited
to, ceilings, partitions, doors, lighting fixtures, switches, floor coverings,
and tenant improvements in good order, condition and repair during the term of
this Lease, except that the Landlord, at Landlord's expense (unless caused by
the fault or negligence of Tenant, its contractors, agents or employees, in
which event at Tenant's expense) shall keep in repair those items specified in
Section 8.5 hereof. All repairs, replacements and alterations made by Tenant
shall be at least sufficient to maintain the Premises in as good condition and
repair as was the Premises at the beginning of the term, reasonable wear and
tear excepted, subject only to Landlord's obligations under Section 8.5. Tenant
shall not overload the Premises or any of its systems, or damage or deface the
Premises nor commit any waste thereon. In addition, Tenant shall also at all
times (subject to Section 8.4 hereof) remove all dirt, rubbish, waste, and
refuse from the Premises.
10.4. Surrender. Upon the termination of this Lease for any cause
whatsoever, Tenant shall remove Tenant's goods and effects and those of any
other person claiming under Tenant, and quit and deliver up the Premises to
Landlord peaceably and quietly in as good order and condition as at the
inception of the term of this Lease (or in such condition as the same hereafter
may be improved by Landlord or Tenant), reasonable wear and tear, damage by fire
or other casualty and repairs which are Landlord's obligation excepted. Goods
and effects not removed by Tenant at the termination of this Lease shall be
considered abandoned and Landlord may, upon five (5) days notice to Tenant,
dispose of and/or store the same as it deems expedient, the cost thereof to be
charged to Tenant and payable upon demand. This Subsection 10.4 shall survive
termination of this Lease.
10.5. Rules and Regulations. Tenant shall observe the rules and
regulations attached hereto as "Exhibit C" and all additions thereto and
modifications thereof as may be promulgated by Landlord from time to time by
written notice to Tenant and which, in Landlord's reasonable judgment, are
desirable for the general safety, comfort and convenience of occupants and
tenants of the Building. All rules and regulations shall be deemed a part of
this Lease, as conditions, with the same effect as though written herein, and
Tenant covenants that they shall be faithfully observed by Tenant, Tenant's
employees, and all those visiting the Premises or claiming under Tenant.
Landlord shall not be responsible for the failure of any other tenant or
occupant of the Building to observe any of said rules and regulations.
10.6. Compliance with Law. Tenant agrees at all times to comply promptly
and fully at Tenant's sole cost and expense with all laws, ordinances,
regulations and other
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requirements whatsoever, including without limitation environmental laws, of any
and all Federal, Commonwealth or local authorities or of the Board of Fire
Underwriters or any insurance organizations, associations or companies, which
impose obligations upon Tenant or Landlord with respect to the Premises or
Tenant's use or occupancy thereof (collectively the "Laws"), solely to the
extent that compliance is necessitated due to (i) Tenant's specific use,
occupancy or alteration of the Premises or any portion thereof, or (ii) any act
or omission of Tenant or any employees, agents, contractors, licensees or
invitees of Tenant. Notwithstanding the foregoing, to the extent that Tenant's
compliance with Laws pursuant to the preceding sentence will entail construction
of any addition to or any material modification of any Building systems, or
will, in Landlord's reasonable estimation, materially impact Building structural
elements, Landlord may undertake such compliance on Tenant's behalf, in which
event Tenant shall reimburse to Landlord all of Landlord's out-of-pocket costs
and expenses so incurred within fifteen (15) days after billing as additional
rent. Tenant also agrees that it shall not knowingly do or commit, or suffer to
be done or committed anywhere in or on the Property, any act or thing contrary
to any of the Laws. Without limiting the foregoing, Tenant agrees that the Laws
include the federal Americans with Disabilities Act ("ADA") and that Tenant's
responsibilities hereunder include the duty to ensure that the Premises, and all
facilities and improvements therein, (a) will not constitute a "place of public
accommodation" as defined under the ADA and related regulations, and (b) comply
with the requirements of the ADA and, (c) only if the Premises comprise any full
floor of the Building, that all facilities on such floor of the Building,
whether or not technically within the Premises (such as, but not limited to,
restrooms and elevator lobbies) comply with the ADA. Tenant agrees to indemnify
Landlord and hold Landlord and Landlord's agents, officers, partners, directors
and employees harmless of and from all costs and expenses incurred by Landlord
or any of them as a consequence of any and all claims made against Landlord or
any of them resulting from or arising out of any default by Tenant in the
performance of the obligations contained in this Subsection 10.6.
10.7. Alterations; Additions.
10.7.1. For each and every alteration, addition or improvement
Tenant wishes to make, Tenant shall first (i) submit to Landlord a detailed
description thereof, and (ii) obtain Landlord's written approval thereof.
10.7.2. Provided that the proposed alteration, addition or
improvement does not in Landlord's judgment involve any material modification to
the Property's exterior or its external appearance, or its structural,
mechanical, HVAC, electrical, or plumbing systems or components, such approval
shall not be unreasonably withheld or delayed, but may be conditioned upon
compliance with reasonable requirements of Landlord.
10.7.3. Landlord may withhold its approval in its absolute and
sole discretion with respect to each such alteration, addition or improvement
which Landlord determines involves any modification to the Property's exterior
or its external appearance, or its structural, electrical, mechanical, HVAC or
plumbing systems or any components thereof.
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10.7.4. Tenant shall not permit any financing statement or
statements to be filed with respect to any of the Tenant Work or any
alterations, additions or improvements made by Tenant. All fixtures attached to
the Premises (other than Tenant's trade and business fixtures and equipment)
shall, unless Landlord gives Tenant notice to remove them, remain at the
Premises at the expiration or sooner termination of this Lease and become the
property of Landlord without payment therefor or, at Landlord's option, after
notice to Tenant, any or all of the foregoing which may be designated by
Landlord in such removal notice shall be removed at the sole cost of Tenant
before such expiration or sooner termination and in such event, Tenant shall
repair all damage to the Premises caused by the installation or removal thereof,
and shall restore the Premises to its original improved condition (ordinary wear
and tear excepted), on or before the expiration or termination of this Lease.
Should Tenant fail to remove the same or restore the Premises, Landlord may
cause same to be removed and/or the Premises to be restored at Tenant's expense,
and Tenant hereby agrees to pay Landlord the actual cost of such removal and/or
restoration, together with any and all damages which Landlord may suffer and
sustain by reason of the failure of Tenant to remove the same and/or restore the
Premises as herein provided.
10.7.5. All such alterations, additions or improvements shall be
performed at Tenant's cost (including, without limitation, the costs of permits
therefor) by Landlord or one or more contractors reasonably approved by Landlord
and Tenant, and shall be subject to all applicable requirements of Section 7
hereof.
10.7.6. Tenant shall not place, or cause or allow to be placed,
any sign, advertising matter, lettering, stand, booth, showcase or other article
or matter in or upon the Premises and/or the Property, without the prior written
consent of Landlord which may be withheld in its sole discretion, excepting only
such signs and the like which are located exclusively within the Premises and
are not visible in or extend into any common area or elevator lobby of the
Building.
11. Negative Covenants of Tenant.
11.1. System Changes. Supplementing the provisions of Sections 7 and 8.1
above, Tenant shall not install any equipment of any kind or nature whatsoever
which would or could, in Landlord's judgment, necessitate any change,
replacement or addition to (or which might cause damage to) the plumbing,
heating, air-conditioning or electrical systems serving the Premises or any
other portion of the Building without the prior written consent of Landlord. In
the event such consent is granted, all costs in connection with such changes,
replacements or additions shall be paid for by Tenant in advance.
11.2. Sales. Without the prior written consent of Landlord, Tenant shall
not exhibit, sell or offer for sale (or permit the exhibition, sale or offering
for sale) in the Premises, or at the Property, any article or thing except those
articles and things connected with the Permitted Use of the Premises by Tenant.
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11.3. Prohibited Uses. Tenant will not make or permit to be made any use
of the Premises or any part thereof which would violate any of the covenants,
agreements, terms, provisions and conditions of this Lease or which directly or
indirectly is forbidden by public law, ordinance or governmental regulation or
which may be dangerous to life, limb or property or which may invalidate or
increase the premium cost of any policy of insurance carried on the Property or
covering its operation or which will suffer or permit the Premises or any part
thereof to be used in any manner or which would permit anything to be brought
into or kept therein which, in the judgment of Landlord, would in any way impair
or tend to impair the character, reputation or appearance of the Building as a
high quality office building or which would impair or interfere with or tend to
impair or interfere with any of the services performed by Landlord for the
Building or which could threaten the safety of the Building or any of its
occupants.
11.4. Signs. Tenant shall not display, inscribe, print, paint, maintain
or affix on any place in or about the Premises or the Property any sign, notice,
legend, direction, figure or advertisement, except on the doors of the Premises
and on the directory board of the Building and then only such name(s) and
matter, and in such color, size, style, place and materials, as shall first have
been approved in writing by Landlord. The listing by Landlord of any name other
than that of Tenant, whether on the doors of the Premises, on the directory
board of the Building or otherwise, shall not operate to vest any right or
interest in this Lease or in the Premises or be deemed to be the written consent
of Landlord mentioned in Section 12 hereof, it being expressly understood that
any such listing is a privilege extended by Landlord and revocable at will by
written notice to Tenant.
11.5. Advertising. Without Landlord's prior written consent in each
instance, Tenant shall not: (1) advertise the business, profession or activities
of Tenant conducted at the Premises in any manner which violates the letter or
spirit of any code of ethics adopted by any recognized association or
organization pertaining to such business, profession or activities; or (2) use
the name of the Building for any purpose other than that of the business address
of Tenant; or (3) use any picture or likeness of the Building in any circulars,
notices, advertisements or correspondence.
11.6. Locks. Locks or similar devices may only be attached to or removed
from any door or window in the Premises with Landlord's prior written consent
and in compliance with the terms of Section 21.4 below.
11.7. Compatible Labor. Tenant shall not contract for any work or
service which might involve the employment of labor incompatible with the
employees of the Building or with employees of contractors doing work or
performing services by or on behalf of the Landlord.
11.8. Hazardous Substances.
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11.8.1. Tenant's Warranty. Tenant represents, warrants and
covenants that (1) the Premises will not be used for any dangerous, noxious or
offensive trade or business and that it will not cause or maintain a nuisance
there, (2) it will not bring, generate, treat, store or dispose of Hazardous
Substances (as hereinafter defined) at the Premises, (3) it shall at all times
comply with all Environmental Laws (as hereinafter defined) and shall cause the
Premises to comply, and (4) Tenant will keep the Premises free of any lien
imposed pursuant to any Environmental Laws by reason of Tenant's breach of any
of the foregoing warranties and covenants. "Premises" for purposes of this
Section shall include the Building and the Property including parking areas.
11.8.2. Reporting Requirements. Tenant warrants that it will
promptly deliver to the Landlord, (i) copies of any documents received from the
United States Environmental Protection Agency and/or any state, county or
municipal environmental or health agency concerning the Tenant's operations upon
the Premises, (ii) copies of any documents submitted by the Tenant to the United
States Environmental Protection Agency and/or any state, county or municipal
environmental or health agency concerning its operations on the Premises,
including but not limited to copies of permits, licenses, annual filings and
registration forms, and (iii) upon the request of Landlord, Tenant shall provide
Landlord with evidence of compliance with Environmental Laws.
11.8.3. Termination, Cancellation, Surrender. At the expiration or
earlier termination of this Lease, Tenant shall surrender the Premises to
Landlord free of any and all Environmental Defaults (defined below).
11.8.4. Environmental Defaults. In the event of (1) a violation by
Tenant or its employees, agents or contractors of an Environmental Law, (2) a
release, spill or discharge of a Hazardous Substance on or from the Premises by
Tenant or its employees, agents or contractors, or (3) the discovery of an
environmental condition requiring response which violation, release, or
condition is attributable to the acts or omissions of Tenant, its agents,
employees, representatives, invitees, licensees, subtenants, customers, or
contractors, (4) an emergency environmental condition caused by or attributable
to Tenant or its employees, agents or contractors, or (5) any breach by Tenant
of its representation and warranty contained in Section 11.8.1 above (together
"Environmental Defaults"), Landlord shall have the right, but not the
obligation, to immediately enter the Premises, to supervise and approve any
actions taken by Tenant to address the violation, release, or environmental
condition, or if the Landlord deems it necessary, then Landlord may perform, at
Tenant's expense, any lawful actions necessary to address the violation,
release, or environmental condition.
11.8.5. Tenant's Indemnification. Tenant shall indemnify, defend
(with counsel approved by Landlord) and hold Landlord and Landlord's affiliates,
shareholders, directors, officers, employees and agents harmless from and
against any and all claims, judgments, damages (including consequential
damages), penalties, fines, liabilities, losses, suits, administrative
proceedings, costs and expense of any kind or nature, known or unknown,
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contingent or otherwise, which arise at any time during or after the Term
(including, but not limited to, attorneys', consultant, laboratory and expert
fees and including without limitation, diminution in the value of the Building
or Property, damages for the loss or restriction on use of rentable space or of
any amenity of the Building or Project and damages arising from any adverse
impact on marketing of space in the Building), arising from or related to the
occurrence of one or more Environmental Defaults during the Term.
11.8.6. Indemnification.
Tenant shall indemnify, defend (with counsel approved by Landlord)
and hold Landlord and Landlord's affiliates, shareholders, directors, officers,
employees and agents harmless from and against any and all claims, judgments,
damages (including consequential damages), penalties, fines, liabilities,
losses, suits, administrative proceedings, costs and expenses of any kind or
nature, known or unknown, contingent or otherwise, whether incurred during or
after the Term of this Lease (including, but not limited to, attorneys',
consultant, laboratory and expert fees and including without limitation,
diminution in the value of the Building or Property, damages for the loss or
restriction on use of rentable or usable space or of any amenity of the Building
and damages arising from any adverse impact on marketing of space in the
Building), which arise out of or are in any way related to the occurrence of any
Environmental Default.
11.8.7. Definitions.
(a) "Hazardous Substances" means, (i) asbestos and any
asbestos containing material and any substance that is then defined or listed
in, or otherwise classified pursuant to, any Environmental Laws or any
applicable laws or regulations as a "hazardous substance", "Hazardous Material",
"hazardous waste," "infectious waste", "toxic substance", "toxic pollutant" or
any other formulation intended to define, list, or classify substances by reason
of deleterious properties such as ignitability, corrosivity, reactivity,
carcinogenicity, toxicity, reproductive toxicity, or Toxicity Characteristic
Leaching Procedure (TCLP) toxicity, (ii) any petroleum and drilling fluids,
produced waters, and other wastes associated with the exploration, development
or production of crude oil, natural gas, or geothermal resources and (iii)
petroleum products, polychlorinated biphenyls, urea formaldehyde, radon gas,
radioactive material (including any source, special nuclear, or by-product
material), and medical waste.
(b) "Environmental Laws" collectively means and includes
all present and future laws and any amendments thereto (whether common law,
statute, rule, order, regulation or otherwise), permits, and other requirements
or guidelines of governmental authorities applicable to the Premises and
relating to the environment and environmental conditions or to any Hazardous
Substance (including, without limitation, CERCLA, 42 U.S.C Section 601, et seq,
the Resource Conservation and Recovery Act of 1976, 42 U.S.C Section 901, et
seq, the Hazardous Materials Transportation Act, 49 U.S.C. Section 801, et seq,
the Federal Water Pollution
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Control Act, 33 U.S.C. Section 51, et seq, the Clean Air Act, 33 U.S.C. Section
401, et seq, the Clean Air Act, 42 U.S.C. Section 41, et seq, the Toxic
Substances Control Act, 15 U.S.C. Section 601-2629, the Safe Drinking Water Act,
42 U.S.C. Section 00f-300j, the Emergency Planning and Community Right-to-Know
Act, 42 U.S.C. Section 101, et seq, and any so-called "Super Fund" or "Super
Lien" law, any law requiring the filing of reports and notices relating to
hazardous substances, environmental laws administered by the Environmental
Protection Agency, and any similar state and local laws and regulations, all
amendments thereto and all regulations, orders, decisions, and decrees now or
hereafter promulgated thereunder concerning the environment, industrial hygiene
or public health or safety).
11.8.8. Landlord's Warranty. Landlord represents and warrants to
Tenant that during the Term Landlord will not bring, generate, treat, store or
dispose of Hazardous Substances at the Property in quantities or concentrations
requiring remediation under applicable Environmental Laws, and shall at all
times comply in all material respects with all applicable Environmental Laws.
Notwithstanding the foregoing, Tenant acknowledges that Landlord will, from time
to time, keep upon the Property certain products and materials used in the
normal operation of the Property which would technically constitute a violation
of the foregoing representation and warranty, and Tenant agrees that, with
regard to such products and materials, Landlord shall not be deemed to have
breached the foregoing representation or warranty so long as such products and
materials are (a) used at all times for the purpose for which and in the manner
in which they are intended to be used by their respective manufacturers, (b) not
kept upon the Property in any greater quantities than reasonably necessary for
the normal operation of the Property and (c) used and disposed of by Landlord
and Landlord's employees, contractors and agents in a lawful manner.
11.8.9. Landlord's Indemnification. Landlord shall indemnify,
defend (with counsel approved by Tenant) and hold Tenant and Tenant's
affiliates, constituent partners, employees and agents harmless of, from and
against any and all claims, judgments, damages, penalties, fines, liabilities,
lawsuits, administrative proceedings, costs and expenses of any kind or nature,
known or unknown, contingent or otherwise (including, but not limited to,
attorneys', consultants', laboratory and expert fees and including without
limitation damages for the loss or restriction on use of any portion of the
Premises or of any amenity of the Building), arising from or related to any
breach by Landlord of its representations, warranties and obligations contained
in Section 11.8.8, above.
11.8.10. Survival. The provisions of this Section 11.8 shall
survive any termination of this Lease or the Term.
11.9.Floor Load. Tenant shall not place or permit to be placed upon any
floor of the Premises any item of any nature the weight of which shall exceed
such floor's rated floor load limit of sixty (60) pounds per square foot live
load (including partitions) unless additional floor loads are approved in
writing by Landlord in advance.
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12. Subletting and Assigning.
12.1. General Restriction.
12.1.1. Tenant shall not assign this Lease or sublet all or any
portion or portions of the Premises without first obtaining Landlord's prior
written consent thereto. Such consent, if given, will not release Tenant from
its obligations hereunder and will not be deemed a consent to any further
subletting or assignment. Tenant shall not convey, pledge, mortgage, encumber or
otherwise transfer (collectively "Pledge") (whether voluntarily or otherwise)
this Lease or any interest in or under it. For purposes of this Section, an
assignment shall include any direct or indirect transfer of a controlling
interest in Tenant. Any attempt by Tenant to assign or Pledge this Lease or
sublet the Premises in contravention of the terms of this Lease shall constitute
an Event of Default hereunder.
12.1.2. Notwithstanding the foregoing:
(i) no prior approval of the Landlord shall be required
for the subletting of all or a portion of the Premises or assignment of this
Lease to any corporation or other entity which is a parent or wholly-owned
subsidiary of, or under common control with, the Tenant (a "Related Party"),
except that (a) no subletting or assignment to a Related Party shall be made
unless the Tenant shall have provided to the Landlord such information as the
Landlord shall reasonably require such as, but not limited to, satisfactory
evidence as to the relationship as parent, affiliate or subsidiary of the
proposed subtenant or assignee, and evidence as to its legal existence and
corporate (or other) authority to enter into the sublease or assignment and (b)
if a Related Party to which all or a portion of the Premises has been sublet or
to which this Lease has been assigned without Landlord's prior approval shall
thereafter cease to be a Related Party, Tenant shall immediately give Landlord
written notice of such fact, and Landlord shall have the right and option in its
sole discretion to declare the sublease or assignment pursuant to which such
former Related Party occupies the Premises or any portion thereof to be null and
void and to require such entity to vacate the Premises within thirty (30) days
following written notice from Landlord; and
(ii) the foregoing prohibition shall not apply to any
assignment of the Lease which would occur as a result of a merger, consolidation
or reorganization of the Tenant's corporate structure, provided the Tenant shall
have first provided to the Landlord such information as the Landlord may
reasonably require relating to the merger, consolidation or reorganization, such
as, but not limited to, satisfactory evidence of the relationship as a result of
any merger, consolidation or reorganization of the proposed assignee, evidence
as to its legal existence and its corporate authority to enter into the
assignment.
12.2. Landlord's Costs; Forms. Tenant shall reimburse Landlord for
Landlord's reasonable expenses, including attorneys' fees, in reviewing and
approving (or disapproving) any documents relating to any proposed Pledge,
sublease or assignment. All forms of consents and
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agreements relating to or effecting any sublease or assignment shall be supplied
or approved (as Landlord shall elect) by counsel to Landlord.
12.3. Rent Collection. If this Lease is assigned or if the Premises or
any part thereof is sublet or occupied by a person or entity other than Tenant,
Landlord may, after default by Tenant, collect Rent from the assignee, subtenant
or occupant and apply the net amount collected to the Rent herein reserved, but
no such assignment, subletting, occupancy or collection shall be deemed a waiver
of any of Tenant's covenants contained in this Lease or the acceptance by
Landlord of the assignee, subtenant or occupant as Tenant, or a release of
Tenant from further performance by Tenant of the covenants of Tenant herein
contained.
12.4. Sublet Notice. Notwithstanding anything contained in this Lease to
the contrary, if at any time during the term of this Lease Tenant desires to
sublet or assign all or part of the Premises, Tenant shall advise Landlord in
writing (such notice being hereinafter referred to as a "Sublet Notice") of the
identity of the proposed assignee or subtenant and its business and of the terms
of the proposed subletting or assignment and the area proposed to be sublet.
Tenant shall also transmit therewith the most recent financial statement or
other evidence of financial responsibility of such assignee or subtenant and a
certification executed by Tenant stating whether or not any premium or other
consideration is being paid for the proposed sublease or assignment.
12.5. Receipt of Sublet Notice. Upon receipt of a Sublet Notice Landlord
shall have the right to: (1) approve or withhold approval of the proposed
sublease or assignment in its sole discretion; or (2) sublet from Tenant such
space (hereinafter referred to as the "Sublet Space") as Tenant proposed to
lease to the proposed subtenant; or (3) terminate this Lease with respect to the
Sublet Space on the date set forth in Landlord's notice as set forth in Section
12.6 below.
12.6. Option to Approve or Reject Sublease. The option to approve or
reject any proposed sublease or assignment as specified in Section 12.5 above
shall be exercisable by Landlord sending Tenant a written notice specifying the
exercise of any such right within thirty (30) business days after receipt of a
Sublet Notice from Tenant.
12.6.1. If Landlord exercises its option to sublease the Sublet
Space, the term of the subletting from Tenant to Landlord for the Sublet Space
shall be the term set forth in the Sublet Notice and Landlord shall pay the same
Minimum Rent and Additional Rent as Tenant is required to pay to Landlord under
this Lease for the same space and shall be upon such other terms and conditions
as are contained in this Lease to the extent applicable. If the Sublet Space
does not constitute the entire Premises, the Minimum Rent for the Sublet Space
and sublessee's share of Operating Expenses and Real Estate Taxes under the
sublease shall equal the product derived by multiplying the Minimum Rent and
Tenant's Expense Share and Tenant's Tax Share (calculated as provided in this
Lease) by the fraction, the numerator of which is the Rentable Area of the
Sublet Space and the denominator of which is the Rentable Area of the
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Premises. Landlord and Tenant shall enter into a sublease of the Sublet Space on
such terms. The cost of any construction required to permit the operation of the
Sublet Space as a premises separate from the balance of the Premises shall be
paid by Tenant to Landlord upon demand as Additional Rent.
12.6.2. If the Sublet Space does not constitute the entire Premises
and Landlord exercises its option to terminate this Lease with respect to the
Sublet Space, then as to that portion of the Premises which is not part of the
Sublet Space, this Lease shall remain in full force and effect except that the
Minimum Rent, Tenant's Tax Share and Tenant's Expense Share shall be reduced by
the amount each bears to the fraction, the numerator of which shall be the
Rentable Area of the Sublet Space and the denominator of which shall be the
Rentable Area of the Premises.
12.6.3. If Landlord elects to terminate this Lease, the Lease shall
terminate on a date set forth in Landlord's notice to Tenant described above in
this Section 12.6, provided such date shall not be less than thirty (30) days
after the date Landlord delivers such notice to Tenant.
12.6.4. If Landlord withholds approval to the proposed subletting
or assignment, this Lease shall remain in full force and effect.
12.6.5. In the event Landlord does not exercise any of its rights
specified in this Section 12.6, Landlord shall be deemed to have withheld
approval of the sublease or assignment. Upon Landlord's failure to exercise any
of its rights in writing, Tenant may again request Landlord's approval which
approval shall be deemed given unless Landlord responds to the contrary within
ten (10) days of Tenant's second request. If Tenant completes a sublease or
assignment with a third party following Landlord's disapproval or deemed
disapproval thereof, such sublease or assignment shall be null and void.
12.7. Premium for Sublease. As a condition to Landlord's consent to any
subletting, assignment or other transfer referred to in this Section 12, if the
sublease, assignment or other transfer provides that the subtenant, assignee or
other transferee thereunder is to pay any amount in excess of the sum of the
Rent and other charges due under this Lease, plus Tenant's expenses on account
of such assignment or sublease (which shall be limited to reasonable advertising
costs, brokerage commissions, allowances or free rent provided to the assignee
or subtenant, and legal fees, and which expenses, for purposes of hereof, shall
be amortized on a straight-line basis, without interest, over the term of the
subletting, assignment or other transfer) (such excess being herein referred to
as "Profit"), whether such Profit be in the form of an increased monthly or
annual rental, a lump sum payment, or any other form (and if sublet space does
not constitute the entire Premises, the existence of such Profit shall be
determined on a pro rata basis), one half ( 1/2) of the Profit shall be payable
to Landlord immediately upon Tenant's receipt thereof as Additional Rent, and
Tenant shall retain the other half.
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12.8. Liability of Assignee. Each assignee hereunder shall assume and be
deemed to have assumed this Lease and shall be and remain liable jointly and
severally with Tenant for all payments and for the due performance of all terms,
covenants, conditions and provisions herein contained on Tenant's part to be
observed and performed. No assignment shall be binding upon Landlord unless the
assignee shall deliver to Landlord an instrument in recordable form containing a
covenant of assumption by the assignee. The failure or refusal of assignee to
execute the same shall not release an assignee from its liability as set forth
herein.
12.9. Rental Basis. All the foregoing notwithstanding, Tenant shall not
enter into any lease, sublease, license, concession or other agreement for the
use, occupancy or utilization of the Premises or any portion thereof which
provides for a rental or other payment for such use, occupancy or utilization
based in whole or in part on the income or profits derived by any person from
the property leased, used, occupied or utilized (other than an amount based on a
fixed percentage or percentages of receipts or sales). Any such purported lease,
sublease, license, concession or other agreement shall be absolutely void and
ineffective as a conveyance of any right or interest in the possession, use or
occupancy of any part of the Premises.
12.10. Future Compliance. Any consent by Landlord hereunder shall not
constitute a waiver of strict future compliance by Tenant of the provisions of
this Section 12 or a release of Tenant from the full performance by Tenant of
any of the terms, covenants, provisions, or conditions in this Lease contained.
13. Fire or Other Casualty.
13.1. Subject to the rights of termination set forth below, in the event
of damage to the Premises by fire or other casualty not caused by the gross
negligence or willful misconduct of Tenant, Landlord shall at its expense cause
the damage to the Premises, exclusive of the Tenant Work and other improvements
made by or for Tenant or any prior tenant, to be repaired to a condition as
nearly as practicable to that which existed immediately prior to the casualty,
with reasonable promptness and diligence. Notwithstanding the foregoing,
Landlord's obligation to repair casualty damage shall be limited to Landlord's
expenditure of (a) the amount of the deductible under Landlord's policy of all
risk property insurance, plus (b) the net proceeds of insurance recovered for
the casualty damage, and shall be subject to zoning and building laws or
ordinances then in existence. For purposes hereof, the term "net proceeds of
insurance recovered" refers to the gross amount of insurance proceeds actually
made available to Landlord (and not retained by any ground lessor or mortgagee
of the Property) less the reasonable expenses of Landlord incurred in connection
with the collection of such proceeds, including, without limitation, fees and
expenses for legal and appraisal services. Landlord shall not, however, be
obligated to repair, restore or rebuild any of Tenant's personal property
(including all furniture, trade fixtures and equipment), the Tenant Work, or any
other alterations or additions within the Premises made by or for Tenant or any
prior tenant (collectively, "Tenant's Property"). In the event of a casualty,
Landlord shall deliver to Tenant any plans and
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specifications then in Landlord's possession respecting the Tenant Work or other
alterations or additions within the Premises which Tenant is obligated hereunder
to repair, restore or rebuild.
13.2. In the event of casualty damage to the Premises, as part of
Landlord's repair obligation Landlord shall first remove all debris from the
Premises and dispose thereof. As used herein, "debris" means all material of
every kind and nature contained within the Premises which has been damaged or
destroyed by the casualty to such an extent that it retains little or no salvage
value and is intended to be disposed of. Prior to commencement of debris
removal, Landlord shall afford Tenant an opportunity, upon ten (10) days advance
notice from Landlord, for Tenant's designated representative to tour the
Premises with Landlord's representative in order to designate any of Tenant's
Property which Tenant desires to salvage. If Tenant's representative fails to
participate in such tour following such advance notice from Landlord, Tenant
shall be deemed to have waived all right to salvage any of Tenant's Property in
the Premises and Landlord may freely dispose of same as debris. If Tenant's
representative tours the Premises, then (i) Landlord may freely dispose of all
Tenant's Property not designated for salvage as debris, and (ii) Tenant shall
cause all of Tenant's Property designated for salvage to be removed from the
Building promptly and diligently, in accordance with the terms and conditions
set forth in Section 13.3 below, at Tenant's expense. In the event that any
portions of the Tenant Work, or other tenant improvements within the Premises
not constituting personalty, are not damaged and are desired by Tenant to be
retained in place rather than removed as aforesaid, Landlord shall nonetheless
be entitled to require Tenant to elect either to remove same for salvage or to
declare same to be debris (and Tenant's failure to elect to remove same for
salvage shall constitute Tenant's election to declare same to be debris), if
Landlord determines that such elements must be removed in order for Landlord to
efficiently prosecute Landlord's repair of the Premises or the Building.
Landlord may make such determination at any time during or after the tour of the
Premises with Tenant's representative and, if after, Landlord shall give Tenant
written notice of such determination and Tenant shall have seven (7) days within
which to make such election (failure of Tenant to timely respond being deemed an
election to declare such elements to be debris). All costs incurred by Landlord
in removing and disposing of Tenant's Property designated or deemed to be debris
pursuant to the terms of this Section 13.2 shall be reimbursed to Landlord by
Tenant within thirty (30) days following Tenant's receipt of a xxxx therefor, as
additional Rent (nothing contained herein shall preclude Tenant from seeking
reimbursement of such costs from Tenant's property insurer which provides
coverage of the Premises and Tenant's Property). The obligation of Tenant to
reimburse Landlord for the costs of debris removal in accordance with this
Section 13.2 shall survive any termination of this Lease as a result of a
casualty, notwithstanding any other provision of this Article.
13.3. Any of Tenant's Property elected to be salvaged by Tenant pursuant
to the terms of 13.2 above shall be removed from the Premises in accordance with
the following terms and conditions:
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(i) Tenant shall comply with all applicable laws and regulations
in performing such removal, and shall obtain any and all permits and
governmental consents respecting same;
(ii) all provisions of this Lease, including without limitation
the release, indemnity and insurance provisions hereof, shall be fully
applicable to Tenant's entry upon the Building and the Premises, regardless of
whether this Lease has been terminated pursuant to any termination right
contained in this Article;
(iii) Tenant's employees and contractors shall be subject to
Landlord's supervision and scheduling so as not to interfere with or delay
Landlord's performance of its repair and restoration work in the Premises and
the Building (but such supervision and scheduling shall not be construed to
impose liability upon Landlord for any acts or omissions of Tenant's employees
or contractors in performing such work, all of which shall be solely Tenant's
responsibility);
(iv) Tenant shall employ only contractors approved in advance by
Landlord, which approval shall not be unreasonably withheld so long as Landlord
determines that a proposed contractor (x) will maintain all types and coverages
of insurance, including without limitation coverage amounts and parties named as
additional insureds, reasonably deemed appropriate by Landlord under the
circumstances, and (y) will not disturb harmonious labor relations in or about
the Building;
(v) Tenant and its employees and contractors shall obey all
reasonable rules and regulations promulgated by Landlord respecting entry into
the Building and removal of Tenant's Property therefrom; and
(vi) if Landlord determines that there is present in the Building,
in the Premises, or upon the articles of Tenant's Property which Tenant desires
to salvage, any substances generated or dispersed as a result of the casualty,
regardless of the source thereof, which are generally recognized to be hazardous
to persons or to the environment, including without limitation any toxic
substances regulated by law and any microbial contamination deemed hazardous to
health ("Contaminants"), Landlord may condition Tenant's entry into the Building
and the removal of Tenant's Property upon Tenant's prior execution and delivery
to Landlord of an agreement releasing Landlord from and indemnifying Landlord
against any and all liability resulting from or arising out of the exposure of
Tenant's employees, agents or contractors to Contaminants while within the
Building, or the exposure of any individual to Contaminants by virtue of
exposure to the salvaged items of Tenant's Property following the removal
thereof from the Building, or the improper release or disposal of Contaminants
in the course of Tenant's cleaning or disposal of the salvaged Tenant's Property
following removal, which release and indemnity agreement shall be in form
acceptable to Landlord in every respect.
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13.4. Following completion of Landlord's repairs and restoration within
the Premises pursuant to Section 13.1 above, Tenant shall promptly thereafter,
at its own cost and with due diligence, repair and restore the Tenant Work and
any other improvements to the Premises made by or for Tenant or any prior tenant
at least to the extent of the value and as nearly as possible to the character
of the property involved as it was immediately before the loss. To the extent
the Premises are rendered untenantable by a casualty not caused by the willful
misconduct of Tenant, the monthly payments owing under this Lease on account of
Minimum Rent, Real Estate Taxes and Operating Expenses shall proportionately
xxxxx from the date of the casualty until the first to occur of (a) thirty (30)
days after Landlord has tendered to Tenant the damaged portion of the Premises,
restored by Landlord to the extent required hereunder, or (b) Tenant's resumed
occupancy of the Premises.
13.5. In the event the casualty damage shall involve the Building
generally and shall be so extensive that Landlord decides not to repair or
rebuild the Building, or if available insurance proceeds for the Building are
insufficient to repair or rebuild the damage, or if any mortgagee shall not
permit the application of adequate insurance proceeds for repair or restoration,
or if the casualty to the Building shall not be of a type insured against under
standard fire policies with extended type coverage, this Lease shall, at the
option of Landlord, exercisable by written notice to Tenant given within ninety
(90) days after Landlord is notified of the extent of the casualty and the
amount of insurance proceeds available for restoration, be terminated as of a
date specified in such notice (which shall not be more than sixty (60) days
thereafter) and the Minimum Rent and Additional Rent (taking into account any
abatement as aforesaid) shall be adjusted proportionately as of the date of the
termination and Tenant shall thereupon promptly vacate the Premises.
Furthermore, if the damage to the Premises by fire or other casualty not caused
by the gross negligence or willful misconduct of Tenant renders more than fifty
percent (50%) of the Premises untenantable and the completion of the repairs to
the Premises which Landlord is required to perform hereunder will require a
period of in excess of three hundred (300) days following the commencement of
construction (as reasonably estimated by Landlord or its experts, of which
Tenant shall receive notice within ninety (90) days after Landlord is notified
of the extent of the casualty and the amount of insurance proceeds available for
restoration), then either Landlord or Tenant may terminate this Lease by written
notice given to Landlord within thirty (30) days after Landlord's notice to
Tenant thereof (such termination to occur as of a date specified in such notice
which shall not be more than ninety (90) days thereafter), and Minimum Rent and
Additional Rent (taking into account any abatement as aforesaid) shall be
adjusted proportionately from the date of the termination.
13.6. Promptly following the occurrence of any casualty damage to the
Premises, and within five (5) days following Landlord's written request, Tenant
shall tender to Landlord true, correct and complete copies of all policies of
casualty and liability insurance which Tenant is obligated to maintain under the
terms of this Lease. In connection with Landlord's removal of debris from the
Premises, Landlord shall be entitled to coordinate with Tenant's casualty
insurer to obtain coverage for such removal to the extent the debris constitutes
improvements or personal property which are required to be insured by Tenant
under this Lease,
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but such coordination shall not be deemed or construed to excuse Tenant from its
obligation to reimburse Landlord for debris removal pursuant to Section 13.2
above.
13.7. Tenant agrees that Landlord's obligation to restore, and the
rental abatement provided in this Article, shall be Tenant's sole recourse
against Landlord in the event of casualty damage to the Premises, and Tenant
waives any other rights Tenant may have under any applicable law to terminate
this Lease or seek damages against Landlord by reason of casualty damage to the
Premises or the Building. This Article represents the entire agreement between
the parties respecting casualty damage to the Premises or the Building.
14. Release and Indemnity.
14.1. Release. Tenant agrees that Landlord, Manager and their respective
agents, employees, officers, directors, shareholders and partners shall not be
liable to Tenant and Tenant hereby releases said parties from any liability, for
any personal injury, loss of income or damage to or loss of persons or property,
or loss of use of any property, in or about the Premises or Property from any
cause whatsoever unless such damage, loss or injury results from the negligence
of Landlord, its officers, employees or agents. Landlord, Manager and their
respective agents, employees, officers, directors and partners shall not be
liable to Tenant for any such damage or loss, whether or not such damage or loss
so results from such negligence, to the extent Tenant is compensated therefor by
Tenant's insurance. The release contained in this Section 14.1 shall apply, by
way of example and not limitation, to damage, loss or injury resulting directly
or indirectly from any existing or future condition, matter or thing in the
Premises, the Building or any part thereof, or from equipment or appurtenances
becoming out of repair, or from accident, or from the flooding of basements or
other subsurface areas or from refrigerators, sprinkling devices,
air-conditioning apparatus, water, snow, frost, steam, excessive heat or cold,
falling plaster, broken glass, sewage, gas, odors, or noise, or the bursting or
leaking of pipes or plumbing fixtures, and shall apply equally whether any such
damage, loss or injury results from the act or omission of other tenants or
occupants in the Building or any other persons, and whether such damage be
caused by or result from any thing or circumstance, whether of a like or wholly
different nature.
14.2. Indemnity. Subject to the release contained in Section 15.10
below, Tenant shall defend, indemnify, save and hold harmless ("Indemnify")
Landlord, Manager and their respective agents, employees, officers, directors,
shareholders, and partners from and against all liabilities, obligations,
damages, penalties, claims, causes of action, costs, charges and expenses,
including reasonable attorneys' fees, court costs, administrative costs, and
costs of appeals which may be imposed upon or incurred by or asserted by reason
of any of the following which shall occur during the Term of this Lease, or
during any period of time prior to the Lease Commencement Date when Tenant may
have been given access to or possession of all or any portion of the Premises:
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(1) any work or act done in, on or about the Premises or the
Building or any part thereof at the direction of or caused by Tenant, its
agents, contractors, subcontractors, servants, employees, licensees or invitees
(exclusive of the Tenant Work performed by Landlord and Landlord's contractor
pursuant to Section 7 hereof):
(2) any negligence or other wrongful act or omission on the part
of Tenant or any of its agents, contractors, subcontractors, servants,
employees, subtenants, licensees or invitees;
(3) any accident, injury or damage to any persons or property
occurring in, on or about the Premises or any part thereof, unless caused by the
negligence of Landlord, its employees or agents; and
(4) any failure on the part of Tenant to perform or comply with
any of the covenants, agreements, terms, provisions, conditions or limitations
contained in this Lease on its part to be performed or complied with.
The obligation of Tenant to Indemnify contained in this Section
14.2 shall not be limited by any limitation on the amount or type of damages,
compensation or benefits payable by or for Tenant, its agents or contractors
under workers' or xxxxxxx'x compensation acts, disability benefit acts or other
employee benefits acts, or under any other insurance coverage Tenant may obtain.
14.3. Landlord's Indemnity. Subject to the release contained in Section
15.10 below, Landlord shall defend, indemnify, save and hold harmless
("Indemnify") Tenant and Tenant's employees, officers, directors and
shareholders from and against all liabilities, obligations, damages, penalties,
claims, causes of action, costs, charges and expenses, including reasonable
attorneys' fees, court costs, administrative costs and costs of appeals which
may be imposed upon or incurred by or asserted against any of them by reason of
any negligence or willful misconduct on the part of Landlord or any of its
agents, contractors, subcontractors, servants, or employees which occurs during
the Term. The obligation of Landlord to Indemnify contained in this Section 14.3
shall not be limited by any limitation on the amount or type of damages,
compensation or benefits payable by or for Landlord, its agents or contractors
under workers' or xxxxxxx'x compensation acts, disability benefit acts or other
employee benefits acts or under any other insurance coverage Landlord may
obtain, but shall be expressly limited by the terms of Section 29.3, below.
15. Insurance.
15.1. Insurance Coverage. Tenant, at its expense, shall maintain during
the Term comprehensive general liability insurance, and property damage
insurance under policies issued by insurers of recognized responsibility having
a combined single limit for any one (1) occurrence of not less than Three
Million Dollars ($3,000,000.00) for personal injury, bodily
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injury, death, disease and damage or injury to or destruction of property
(including the loss of use thereof) occurring upon, in, or about the Premises
and for: products liability; liability relating to the sale or distribution of
food and/or alcoholic beverages in the Premises; and contractual liability
assumed under this Lease. To satisfy the liability insurance requirements of
this Section 15.1 under a policy of commercial general liability insurance
rather than comprehensive general liability insurance, the Tenant must obtain an
endorsement which applies the aggregate limits separately to the Premises (ISO
Endorsement CG-25-05-11-85, Amendment-Aggregate Limits of Insurance [Per
Location] or an equivalent endorsement satisfactory to Landlord). The
certificate of insurance evidencing such policy must evidence that the limits of
the Tenant's liability insurance required hereunder apply solely to the Premises
and not to other locations. Tenant shall also maintain such other insurance in
form and amount as Landlord may reasonably require.
15.2. Improvements Coverage. Tenant agrees to carry all risk property
insurance on a repair and replacement basis and in form and amount satisfactory
to Landlord on all improvements to the Premise, including all Tenant Work or
other improvements then under constructions (including without limitation
Builder's Risk coverage during construction of the Tenant Work or any other
permitted alterations). Tenant also agrees to carry such all risk insurance in
form and amount satisfactory to Landlord on Tenant's fixtures, furnishings, wall
coverings, carpeting, drapes, equipment and all other items of personal property
of tenant located on or within the Premises. Tenant agrees that both Landlord
and Landlord's secured lenders shall be named as additional insured under all
such policies.
15.3. Worker's Compensation and Employer's Liability Insurance. Tenant
shall carry worker's compensation insurance containing statutory limits covering
Tenant's employees and business operations in the Premises, as well as
employer's liability insurance providing coverage of not less than one million
dollars ($1,000,000). Tenant shall submit to Landlord evidence of such coverage
satisfactory to Landlord.
15.4. Business Interruption Insurance. Tenant shall, during the Term
hereof, keep in full force and effect business interruption insurance providing
limits in an amount not less than eighty percent (80%) of that amount which is
the then estimated annual gross business income of Tenant.
15.5. Form of Insurance. All insurance policies obtained by Tenant
pursuant to this Section 15 shall be issued by companies with a rating of not
less than "A" and of not less than "Class XIII" in financial size as rated in
the most current available "Best's" Insurance Reports and which are qualified to
do business in the Commonwealth of Pennsylvania. Such policies (exclusive of the
worker's compensation policy) shall name Landlord, Manager and such other
parties as Landlord shall specify as additional insured and shall further
specify that Landlord shall receive thirty (30) days prior written notice of any
proposed cancellation, non-renewal of or material change in any such policy.
Originals, certified policy copies or
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certificates, as Landlord shall elect, of all policies of insurance obtained by
Tenant shall be provided to Landlord.
15.6. Insurance Violations. Tenant will not do, fail to do, suffer to be
done, or keep or suffer to be kept anything in, upon or about the Premises which
will violate the provisions of Landlord's policies insuring against loss or
damage by fire or other hazards (including, but not limited to, public
liability) or which would adversely affect Landlord's fire or liability
insurance premium rating or which would increase premiums being paid by Landlord
for any such coverage, or which would prevent Landlord from procuring such
policies from companies acceptable to Landlord. If anything is done, omitted to
be done or suffered to be done by Tenant, or kept or suffered to be kept in,
upon or about the Premises which shall, by itself or in combination with other
circumstances existing at the Property, cause the premium rate of fire or other
insurance on the Premises or other property in the Building, with companies
acceptable to Landlord, to be increased beyond the established rate fixed by the
appropriate underwriters from time to time applicable to the Premises for use
for the purpose permitted under this Lease, Tenant shall pay the amount of such
increase. Tenant's payment of the amount of such increase shall not preclude or
limit Landlord's ability to exercise its remedies under this Lease for a
violation of Tenant's obligations set forth in the first sentence of this
Section 15.6.
15.7. "Claims Made" Policies. Tenant shall not obtain any insurance
through policies written on a "claims made" basis without Landlord's prior
express written consent, which consent may be conditioned upon any requirements
which Landlord may impose. In all events, should Landlord consent to such a
policy, then the policy shall satisfy all of the following requirements:
(1) the policy retroactive date shall coincide with or precede the
Tenant's occupancy or use of any portion of the Property; and
(2) the Tenant shall maintain such policy for at least three (3)
years following the termination or expiration of the Lease (whichever is later);
and
(3) if such insurance is terminated for any reason, Tenant shall
purchase an extended reporting provision of at least three (3) years duration to
report claims arising from the Lease or Tenant's occupancy; and
(4) the policy shall allow for the report of circumstances or
incidents which might give rise to future claims.
15.8. Flammable Material. No flammable or combustible material shall be
kept by Tenant in or upon the Premises and no explosive material, high pressure
steam generating equipment or similarly hazardous material or equipment shall be
kept at the Premises.
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15.9. Landlord Purchase. At Landlord's option, Landlord may elect to
obtain for itself any or all of the forms of insurance required to be obtained
by Tenant pursuant to this Section if Tenant fails to procure same and such
failure is not cured within three (3) business days following Tenant's receipt
of written notice thereof from Landlord. In the event Landlord shall so elect,
Tenant shall reimburse Landlord upon demand for the cost of all insurance so
obtained by Landlord.
15.10. Waiver of Subrogation. Landlord and Tenant hereby release each
other from any and all liability or responsibility to each other or anyone
claiming through or under them by way of subrogation or otherwise for any loss
or damage to property covered by any fire and extended coverage insurance then
in force, even if such fire or other casualty shall have been caused by the
fault or negligence of the other party, or anyone for whom such party may be
responsible. Landlord and Tenant shall each cause their respective insurers to
include such a provision in their respective policies. During any period while
the foregoing waivers of right of recovery are in effect, the party hereto as to
whom such waivers are in effect shall look solely to the proceeds of such
policies to compensate itself for any loss occasioned by fire or other casualty
which the party suffering such loss is required to insure against pursuant to
the terms of this Lease.
16. Eminent Domain.
16.1. Total or Partial Taking. In the event of exercise of the power of
eminent domain whereby:
(1) such portion of the Property is taken that access to the
Premises is permanently impaired thereby and reasonable alternate access is not
provided by Landlord within a time period which is reasonable under the
circumstances; or
(2) all or substantially all of the Premises or the Property is
taken; or
(3) less than substantially all of the Property is taken but
Landlord, acting in good faith, determines that it is economically unfeasible to
continue to operate the uncondemned portion of the Building as a first-class
office building; or
(4) less than substantially all of the Premises is taken, but
Tenant, acting in good faith, determines that because of such taking it is
economically unfeasible to continue to conduct its business in the uncondemned
portion of the Premises, then in the case of (1) or (2), either party, and in
the case of (3), Landlord, and in the case of (4), Tenant, shall have the right
to terminate this Lease as of the date when possession of that part which was
taken is required to be delivered or surrendered to the condemning authority;
and in such case all Minimum Rent and other charges shall be adjusted to the
date of termination. A "taking" as such term, is used in this Section 16 shall
include a transfer of title or of any interest in the Property
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by deed or other instrument in settlement of or in lieu of transfer by operation
of law incident to condemnation proceedings.
16.2. Temporary Taking. Notwithstanding anything hereinabove provided,
in the event of a taking of only the right to or for possession of the Premises
for a fixed period of time or for the duration of an emergency or other
temporary condition, then this Lease shall continue in full force and effect
without any abatement of Minimum Rent or Additional Rent, but the amounts
payable by the condemnor with respect to any period of time prior to the
expiration or sooner termination of this Lease shall be paid by the condemnor to
Landlord and the condemnor shall be considered a subtenant of Tenant. If the
amounts payable hereunder by the condemnor are paid in monthly installments,
Landlord shall apply the amount of such installments, or as much thereof as may
be necessary for the purpose, toward the amount of Minimum Rent and/or
Additional Rent due from Tenant for the period, and Tenant shall pay to Landlord
any deficiency between the monthly amount thus paid by the condemnor and the
amount due from Tenant. The above notwithstanding, if any such temporary taking
shall continue for a period in excess of 180 days, Tenant shall have the right
to terminate this Lease upon 10 days written notice to Landlord.
16.3. Tenant's Waiver. Regardless of whether this Lease shall terminate,
Tenant shall have no right to participate or share in any condemnation claim,
damage award or settlement in lieu thereof with respect to any taking of any
nature; provided, however, that Tenant shall not be precluded from
independently, in an action separate from any which Landlord may bring, claiming
or receiving payment for Tenant's relocation and moving expenses as may be
permitted under applicable law, so long as the amount of same does not reduce
the award which Landlord is entitled to receive.
17. Default and Remedies.
17.1. Defaults. The occurrence of any one or more of the following shall
constitute an "Event of Default" under this Lease:
17.1.1. Tenant does not pay in full when due any installment of
Rent or any other charge or payment whether or not herein included as Rent, and
such failure to pay is not cured within five (5) days following Tenant's receipt
of notice from Landlord thereof; provided, however, that Landlord shall only be
obligated to give Tenant notice of failure to pay Rent two (2) times during any
period of twelve (12) consecutive calendar months. Thereafter, for the duration
of such twelve (12) calendar month period, Tenant shall be in default
immediately upon Tenant's failure to pay in full, when due, any installment or
payment of Rent, without benefit of such notice and grace period.
17.1.2. Tenant violates or fails to perform or otherwise breaks
any covenant, agreement or condition contained in this Lease, other than those
specifically addressed elsewhere in this Section 17.1, or any other obligation
of Tenant to Landlord, and such violation
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or failure continues uncured for thirty (30) days after receipt of notice
thereof from Landlord, provided that if such violation or failure is not
susceptible of being cured or corrected within the aforesaid thirty (30) day
period, then if Tenant shall have commenced such cure within the aforesaid
thirty (30) day period and diligently and continuously prosecutes same to
completion, Tenant shall have such additional time (not to exceed sixty (60)
days in the aggregate) as Tenant may reasonably require to complete such cure,
unless Landlord reasonably determines that such additional time would materially
jeopardize the Premises, the Property or any tenants of the Building, in which
event Landlord may require Tenant to complete such cure within the aforesaid
thirty (30) day period.
17.1.3. Tenant fails to maintain in full force and effect
throughout the Term all insurance which Tenant is required to maintain under
Section 15 of this Lease, in the form required under Section 15.
17.1.4. Tenant does not occupy the Premises within thirty (30)
days after the Lease Commencement Date.
17.1.5. Tenant removes or attempts to remove Tenant's property
from the Premises other than in the ordinary course of business or upon
termination of this Lease, without having first paid to Landlord in full all
Rent and any other charges that may have become due; provided however, that so
long as Tenant is current in its obligations to pay Rent and other charges that
may be due, such removal or attempt to remove shall not constitute an Event of
Default.
17.1.6. Tenant fails to deliver a requested estoppel statement
within the time period required pursuant to Section 26 below.
17.1.7. Tenant makes an assignment of its rights under this Lease
or enters into any sublease (or purports to do so) in violation of the terms of
Section 12, above.
17.1.8. Tenant or any guarantor of Tenant hereunder becomes the
subject of commencement of an involuntary case under the federal bankruptcy law
as now or hereafter constituted, or there is filed a petition against Tenant or
any guarantor of Tenant hereunder seeking reorganization, arrangement,
adjustment or composition of or in respect of Tenant or any guarantor of Tenant
hereunder under the federal bankruptcy law as now or hereafter constituted, or
under any other applicable federal or state bankruptcy, insolvency,
reorganization or other similar law, or seeking the appointment of a receiver,
liquidator or assignee, custodian, trustee, sequestrator (or similar official)
of Tenant or any guarantor of Tenant hereunder or any substantial part of the
property of either Tenant or any guarantor of Tenant hereunder, or seeking the
winding-up or liquidation of its affairs and such involuntary case or petition
is not stayed or dismissed within sixty (60) days after the filing thereof, or
if Tenant or any guarantor of Tenant hereunder commences a voluntary case or
institutes proceedings to be adjudicated a bankrupt or insolvent, or consents to
the institution of bankruptcy or insolvency proceedings against it, under
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the federal bankruptcy laws as now or hereafter constituted, or any other
applicable federal or state bankruptcy, reorganization or insolvency or other
similar law, or consents to the appointment of or taking possession by a
receiver or liquidator or assignee, trustee, custodian, sequestrator (or other
similar official) of Tenant or any guarantor of Tenant hereunder or of any
substantial part of its property, or makes any assignment for the benefit of
creditors, or admits in writing its inability to pay its debts generally as they
become due, or fails to generally pay its debts as they become due, or if Tenant
or any guarantor of Tenant hereundertakes any action in contemplation of any of
the foregoing.
17.1.9. Any material misrepresentation by Tenant in this Lease, or
material misrepresentation or omission in any financial statements or other
materials provided by Tenant or any guarantor in connection with negotiating or
entering this Lease or in connection with any sublease, assignment or Pledge
under Section 12.
17.1.10. Cancellation of any guaranty of this Lease by a
guarantor.
17.1.11. Failure by Tenant to cure within any applicable times
permitted thereunder any default under any other lease of space at the Building
or at any other buildings owned or managed by Landlord or its affiliates, now or
hereafter entered by Tenant (and any Event of Default hereunder not cured within
the times permitted for cure herein shall, at Landlord's election, constitute a
default under any such other lease or leases).
17.1.12. Failure by Tenant to comply with the same term or
condition of this Lease on three occasions during any twelve month period shall
cause any failure to comply with such term or condition during the succeeding
twelve month period, at Landlord's option, to constitute an incurable Event of
Default, if Landlord has given Tenant notice of each such prior failure within
thirty (30) days after each such failure occurred. The notice and cure periods
provided herein are in lieu of, and not in addition to, any notice and cure
periods provided by law.
17.2. Landlord's Remedies. Upon the occurrence of an Event of Default,
and at the sole option of Landlord, in addition to all remedies Landlord may
have at law or in equity,
17.2.1. Tenant shall be and remain liable to Landlord for damages
computed in accordance with Section 17.3, below, and/or
17.2.2. the term of this Lease shall terminate and become
absolutely void, without notice and without any right on the part of Tenant to
save the forfeiture by payment of any sum due or by other performance of any
condition, term, agreement or covenant broken, and/or
17.2.3. any prothonotary or attorney of any court of record is
hereby irrevocably authorized and empowered to appear for Tenant in any action
to confess judgment against Tenant, and may sign for Tenant an agreement, for
which this Lease shall be his
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sufficient warrant, for entering in any competent court an action or actions in
ejectment, and in any suits or in said actions to confess judgment against
Tenant as well as all persons claiming by, through or under Tenant for the
recovery by Landlord of possession of the Premises. Such authority shall not be
exhausted by any one or more exercises thereof, but judgment may be confessed
from time to time as often as any event set forth in Subsection 17.1 hereof
shall have occurred or be continuing. Such powers may be exercised during as
well as after the expiration or termination of the original Term and during and
at any time after any extension or renewal of the Term, and/or
17.2.4. [Intentionally omitted.]
17.2.5. in any confession of judgment against Tenant hereunder,
Landlord shall cause to be filed in such action an affidavit setting forth the
facts necessary to authorize the entry of judgment and if a true copy of this
Lease (and of the truth of the copy, such affidavit shall be sufficient proof)
be filed in such action, it shall not be necessary to file the original as a
warrant of attorney, notwithstanding any law, rule of court, custom or practice
to the contrary. Tenant releases to Landlord, and to any and all attorneys who
may appear for Tenant, all procedural errors in any proceedings taken by
Landlord, whether by virtue of the powers of attorney contained in this Lease or
not, and all liability therefor. Tenant expressly waives the benefits of all
laws, now or hereafter in force, exempting any property within the Premises or
elsewhere from distraint, levy or sale. Tenant further waives the right to any
notice to remove as may be specified in the Pennsylvania Landlord and Tenant Act
of April 6, 1951, as amended, or any similar or successor provision of law, and
agrees that five (5) days notice shall be sufficient in any case where a longer
period may be statutorily specified, and/or
17.2.6. after re-entry or retaking or recovering of the Premises,
whether by way of termination of this Lease or not, Landlord may, in Landlord's
sole discretion, lease the Premises or any part or parts thereof to such person
or persons and upon such terms as may in Landlord's discretion seem best for a
term within or beyond the term of this Lease, and Tenant shall be liable for any
loss of Rent for the balance of the term and any renewal or extension for which
Tenant has become bound plus the costs and expenses of reletting and of making
repairs and alterations to the Premises. Further, Tenant, for itself and its
successors and assigns, hereby irrevocably constitutes and appoints Landlord as
Tenant's agent to collect the rents due and to become due from all subleases and
apply the same to the Rent due hereunder without in any way affecting Tenant's
obligation to pay any unpaid balance of Rent due or to become due hereunder,
and/or
17.2.7. Landlord may (but shall not be obligated to do so), in
addition to any other rights it may have in law or equity, cure such default on
behalf of Tenant, and Tenant shall reimburse Landlord upon demand for all costs
incurred by Landlord in curing such default, including, without limitation,
reasonable attorneys' fees and other legal expenses, together with interest
thereon at the Lease Interest Rate, which costs and interest thereon shall be
deemed Additional Rent hereunder.
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17.3. Damages.
17.3.1. Without Termination. If Landlord shall not elect to
terminate this Lease pursuant to Section 17.2.2 above, notwithstanding reentry
upon the Premises by Landlord and in addition to and without limiting Landlord's
right to other damages, upon the occurrence of an Event of Default Tenant shall
be and remain liable to Landlord in an amount computed as follows: (a) an amount
equal to the sum of all Rent then in arrears plus the aggregate of all Rent
which is payable under this Lease for the balance of the Term, computed as if no
Event of Default had occurred and any reentry had not been made (including,
without limitation, Tenant's Tax Share of Real Estate Taxes and Tenant's Expense
Share of Operating Expenses which would be owing for the remainder of the Term,
as reasonably estimated by Landlord); plus (b) all costs and expenses incurred
by Landlord in connection with the Event of Default and any reletting of the
Premises, including, without limitation, (i) costs of reentry, repair and
renovation, (ii) the value of all inducements granted or paid to new tenants of
the Premises in connection with reletting including, without limitation,
construction allowances and the value of rent-free periods, (iii) brokers'
commissions and advertising expenses, (iv) watchman's wages and any sheriff's,
marshall's, constable's or other officials' commissions, whether chargeable to
Landlord or Tenant, and (v) attorneys' fees, costs and expenses; plus (c)
interest accrued on the aggregate of the aforesaid sums from the date each was
payable (or, with respect to sums owing under clause (b) from the date each was
incurred by Landlord) until paid by Tenant (whether before or after judgment) at
the Lease Interest Rate; which sum shall be credited with (d) all rentals
actually received by Landlord during the remainder of the Term from any
replacement Tenant to which the Premises are relet.
17.3.2. Liquidated Damages Upon Termination. In the event Landlord
elects to terminate this Lease pursuant to Section 17.2.2 above, Tenant shall
pay to Landlord all Rent accrued and in arrears through the date of termination,
plus liquidated damages equal to the aggregate of (a) the unamortized portion of
any Construction Allowance paid by Landlord under Section 7, above, as of the
date of termination, assuming that the Construction Allowance were amortized on
a straight line basis over the entire Term at a fixed interest rate of twelve
percent (12%) per annum, and (b) twenty-five percent (25%) of the balance of the
Minimum Rent and monthly payments owing with respect to Tenant's Tax Share of
Real Estate Taxes and Tenant's Expense Share of Operating Expenses from the date
of said termination to the end of the Term of this Lease (if the same had not
been terminated), to be computed as follows: (i) Minimum Rent for the remainder
of the Term shall be based on the rate or rates of Minimum Rent set forth in
this Lease for the remainder of the Term at the time of said termination; and
(ii) Tenant's Tax Share of Real Estate Taxes and Tenant's Operating Share of
Operating Expenses for the unexpired portion of the Term shall be computed as
equal to the Tenant's Tax Share of Real Estate Taxes and Tenant's Expense Share
of Operating Expenses charged to Tenant for the last full calendar year
immediately preceding the Event of Default; and the aggregate of the sums
computed under clauses (i) and (ii) of this Section 17.3.2 shall be reduced to
present value as of the date of termination of this Lease utilizing a per annum
interest rate which is two percent (2%) below the Prime Rate in effect as of the
date of termination. In the event any judgment has been
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entered against Tenant for any amount in excess of the total amount required to
be paid by Tenant to Landlord hereunder, then the damages assessed under said
judgment shall be reassessed and a credit granted to the extent of such excess.
Landlord and Tenant have agreed to the liquidated damages herein set forth in
order to avoid extended litigation following an Event of Default by Tenant and
termination of this Lease, recognizing that Landlord's actual damages in such
event are not susceptible of precise calculation and acknowledging that the
liquidated damages herein set forth constitute fair and equitable compensation
to Landlord in such event.
17.4. Remedies Cumulative. All remedies available to Landlord hereunder
and at law and in equity shall be cumulative and concurrent. No termination of
this Lease nor taking or recovering possession of the Premises shall deprive
Landlord of any remedies or actions against Tenant for Rent, for charges or for
damages for the breach of any covenant, agreement or condition herein contained,
nor shall the bringing of any such action for Rent, charges or breach of
covenant, agreement or condition, nor the resort to any other remedy or right
for the recovery of Rent, charges or damages for such breach be construed as a
waiver or release of the right to insist upon the forfeiture and to obtain
possession. No re-entering or taking possession of the Premises, or making of
repairs, alterations or improvements thereto, or reletting thereof, shall be
construed as an election on the part of Landlord to terminate this Lease unless
written notice of such election be given by Landlord to Tenant. The failure of
Landlord to insist upon strict and/or prompt performance of the terms,
agreements, covenants and conditions of this Lease or any of them, and/or the
acceptance of such performance thereafter shall not constitute or be construed
as a waiver of Landlord's right to thereafter enforce the same strictly
according to the terms thereof in the event of a continuing or subsequent
default.
17.5. Expenses of Enforcement. In the event of any litigation between
Landlord and Tenant, the prevailing party shall be entitled to receive from the
other the amount of its reasonable out-of-pocket legal fees and out-of-pocket
expenses of counsel incurred in connection therewith.
17.6. Nonwaiver. Any failure of Landlord to enforce any remedy allowed
for the violation of any provision of this Lease shall not imply the waiver of
any such provision, even if such violation is continued or repeated, and no
express waiver shall affect any provision other than the one(s) specified in
such waiver and only for the time and in the manner specifically stated. No
receipt of monies by Landlord from Tenant after the termination of this Lease
shall in any way (i) alter the length of the Term or of Tenant's right of
possession hereunder, or (ii) after the giving of any notice, reinstate,
continue or extend the Term or affect any notice given to Tenant prior to the
receipt of such moneys, it being agreed that after the service of notice or the
commencement of a suit or after final judgment for possession of the Premises,
Landlord may receive and collect any Rent due, and the payment of said Rent
shall not waive or affect said notice, suit or judgment.
18. Subordination.
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18.1. Generally. This Lease is and shall be subject and subordinate to
all ground or underlying leases of the Property and to all mortgages which may
now or hereafter be secured upon such leases or the Property and to any and all
renewals, modifications, consolidations, replacements and extensions thereof.
This Section shall be self-operative and no further instrument of subordination
shall be required by any lessor or mortgagee, but in confirmation of such
subordination, Tenant shall execute, within fifteen (15) days after being so
requested, any certificate that Landlord may reasonably require acknowledging
such subordination. Notwithstanding the foregoing, a party holding a lien, right
or estate to which this Lease is subordinate shall have the right to recognize
and preserve this Lease in the event of any foreclosure sale or possessory
action and in such case this Lease shall continue in full force and effect and
Tenant shall attorn to such party and shall execute, acknowledge and deliver any
instrument that has for its purpose and effect the confirmation of such
attornment. If Landlord shall so request, Tenant shall send to any mortgagee or
ground lessor of the Property designated by Landlord, a copy of any notice
thereafter given by Tenant to Landlord alleging a material breach by Landlord of
its obligations under this Lease.
18.2. Rights of Mortgagee. In the event of any act or omission of
Landlord which would give Tenant the right, immediately or after lapse of a
period of time, to cancel or terminate this Lease, or to claim a partial or
total eviction, Tenant shall not exercise such right:
(1) until it has given written notice of such act or omission to
the holder of each such mortgage or ground lease whose name and address shall
previously have been furnished to Tenant in writing; and
(2) until a reasonable period for remedying such act or omission
shall have elapsed following the giving of such notice (which reasonable period
shall in no event be less than the period to which Landlord would be entitled
under this Lease or otherwise, after similar notice, to effect such remedy).
19. Holding Over.
Should Tenant continue to occupy the Premises after expiration of the
term of this Lease or any renewal or renewals thereof, or after a forfeiture
incurred, such tenancy shall (without limiting any of Landlord's rights or
remedies concerning an Event of Default) be one at sufferance from month to
month at a minimum monthly rent equal to twice the total of the Rent payable for
the last month of the term of this Lease prior to the holdover and, in addition
thereto, Tenant shall pay to Landlord an amount equal to all damages,
consequential as well as direct, sustained by reason of Tenant's retention of
possession. Neither Landlord's demand nor Landlord's receipt of the aforesaid
compensation for use and occupancy shall be deemed to provide Tenant with any
right to any use, occupancy, or possession of the Premises either for the period
for which such compensation has been demanded or paid, or for any time before or
after such period. The provisions of this Section 19 shall not be deemed to
limit or constitute a waiver of any other rights or remedies of Landlord
provided herein or at law or in equity.
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20. Notices.
All bills, statements, notices or other communications given hereunder
shall be deemed sufficiently given or rendered only if in writing and sent to
Tenant or Landlord by certified or registered mail, return receipt requested,
postage prepaid, as follows:
If to Tenant:
Real Media, Inc.
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
If to Landlord:
Hub PROPERTIES TRUST
c/o REIT Management & Research, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Property Management
With a copy to:
REIT Management & Research, Inc.
Management Office
Concourse Level, Mellon Bank Center
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: General Manager
or such other person or place as either party hereto may designate by notice
given as aforesaid. Notice shall be deemed received as of the date set forth on
the return receipt.
21. Certain Rights Reserved to the Landlord.
Landlord waives no rights except those that may be specifically waived
in this Lease, and explicitly retains all other rights including, without
limitation, the following rights, the exercise of which shall not be deemed to
constitute an eviction or disturbance of Tenant's use or possession of the
Premises and shall not give rise to any claim for set-off or abatement of Rent
or any other claim (provided, however, Landlord shall exercise reasonable
efforts under the circumstances to exercise such rights in a manner which will
not unreasonably impair Tenant's ability to conduct the Permitted Use within the
Premises):
21.1. Building Name. To change the name of the Building, presently 000
Xxxxxxxx Xxxxx, and to change the street address of the Building, presently 000
Xxxxxxxx Xxxxx.
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21.2. Exterior Signs. To install and maintain a sign or signs on the
exterior of the Building.
21.3. Decoration. To decorate or to make repairs, alterations, additions
or improvements, whether structural or otherwise, in or about the Property, or
any part thereof, and for such purposes to temporarily close doors, entry ways,
public space and corridors in and about the Property and to interrupt or
temporarily suspend services or use of facilities, all without affecting any of
Tenant's obligations hereunder, so long as the Premises are reasonably
accessible and usable.
21.4. Keys. To furnish door keys, pass cards and the like for the entry
door(s) in the Premises at the commencement of the Lease and to retain at all
times, and to use in appropriate instances, keys and pass cards to all doors
within and into the Premises. Tenant agrees to (i) purchase, only from Landlord,
additional duplicate keys or pass cards as required, (ii) change no locks or
other security devices and (iii) not to affix locks on doors without the prior
written consent of the Landlord. Upon the expiration of the Term or Tenant's
right to possession, Tenant shall return all keys and pass cards to Landlord and
shall disclose to Landlord the combination of any safes, cabinets or vaults left
in the Premises.
21.5. Window Coverings. To designate and approve all window coverings
used on the Property or any part thereof.
21.6. Placement of Loads. To approve the weight, size and location of
safes, vaults and other heavy equipment and articles in and about the Premises
and the Property so as not to exceed the legal load per square foot designated
by the structural engineers for the Property, and to require all such items and
furniture and similar items to be moved into or out of the Property and Premises
only at such times and in such manner as Landlord shall direct in writing.
Tenant shall not install or operate machinery or any mechanical devices of a
nature not directly related to Tenant's ordinary use, as limited by the
Permitted Use, of the Premises without the prior written consent of Landlord.
Movements of Tenant's property into or out of the Property or Premises are
entirely at the risk and responsibility of Tenant.
21.7. Deliveries. To regulate delivery of supplies and the usage of the
loading docks, receiving areas and freight elevators.
21.8. Entry to Premises. To enter the Premises in accordance with
Section 17, and in the last year of the Term of this Lease, to show the Premises
to prospective tenants at reasonable times and, if vacated or abandoned, to view
the Premises at any time and to prepare the Premises for re-occupancy.
21.9. Pipes, Conduits, and Wiring. To erect, use and maintain pipes,
ducts, wiring and conduits, and appurtenances thereto, in and through the
Premises at reasonable locations.
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21.10. Inspection and Repair. To enter the Premises at any reasonable
time to inspect the Premises and to make repairs or alterations as Landlord
deems necessary, with due diligence and minimum disturbance.
21.11. Conduct of Other Business on the Property. To grant to any person
or to reserve unto itself the exclusive right to conduct any business or render
any service in or on the Property.
21.12. Alterations to Property. To alter the layout, design and/or use
of the Property in such manner as Landlord, in its sole discretion, deems
appropriate, so long as the character of the Property as a first-class office
property is maintained. While it is presently intended that the Property shall
include the development of a retail shopping arcade, Tenant acknowledges that
Landlord has made no promise, agreement, warranty or representation that any
such development will be undertaken or effected or as to any particular of such
development as shall be undertaken or effected, nor is such development (or any
particular thereof) in any way a condition of this Lease.
21.13. Redecoration of Premises. During the last six (6) months of the
term of this Lease, if during or prior to that time Tenant has vacated the
Premises, to decorate, remodel, repair, alter or otherwise prepare the Premises
for reoccupancy, without affecting Tenant's obligation to pay Rent for the
Premises.
21.14. Adjoining Areas. The use of and reasonable access thereto through
the Premises, for the purposes of operation, maintenance, decoration and repair,
of (a) all walls, windows and doors bounding the Premises (including exterior
walls of the Building, core corridor walls and doors and any core corridor
entrance) except the surfaces thereof within the Premises , (b) any terraces or
roofs adjacent to the Premises and (c) any space in or adjacent to the Premises
used for shafts, pipes, conduits, fan rooms, ducts, electric or other utilities,
sinks or other facilities.
22. [Intentionally omitted.]
23. Use and Occupancy Tax and Miscellaneous Taxes.
Tenant shall pay prior to delinquency all taxes assessed against or
levied upon its occupancy of the Premises or upon the fixtures, furnishings,
equipment and all other personal property of Tenant located in the Premises and
when possible Tenant shall cause said fixtures, furnishings, equipment and other
personal property to be assessed and billed separately from the property of
Landlord. In the event any or all of Tenant's fixtures, furnishings, equipment
or other personal property or its occupancy of the Premises shall be assessed
and taxed with the property of Landlord, Tenant shall pay to Landlord its share
of such taxes within twenty (20) days after delivery to Tenant by Landlord of a
statement in writing setting forth the amount of such taxes applicable to
Tenant's fixtures, furnishings, equipment, personal property or
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occupancy. If, during the Term of this Lease or any renewal or extension
thereof, any tax is imposed upon the privilege of renting or occupying the
Premises or upon the amount of rentals collected therefor, Tenant will pay each
month, as Additional Rent, a sum equal to such tax or charge that is imposed for
such month, but nothing herein shall be taken to require Tenant to pay any
income, estate, inheritance or franchise tax imposed upon Landlord except to the
extent required by Section 5 hereof. In addition, Tenant will pay as additional
rent all Fort Washington School District Business Use and Occupancy Tax
applicable to Tenant and the Premises (if any) within the time set forth in any
xxxx rendered by the City of Fort Washington or Landlord for said tax.
24. Excepted from Premises.
Any hallways, passageways, stairways, elevators, or other means of
access to and from the Premises or the upper or lower portions of the Property,
or the space occupied by the said hallways, passageways, stairways, elevators
and other means of access, although such may be within the Premises as described
hereinabove, shall be taken to be excepted therefrom, without being deemed to
reduce the Rentable Area thereof, and reserved to Landlord or to the tenants of
the Property in common and the same shall not be considered an exclusive portion
of the Premises. All ducts, pipes, wires or other equipment used in the
operation of the Property, or any part thereof, and any space occupied thereby,
whether or not within the Premises description, shall also be excepted and
reserved from the Premises, without being deemed to reduce the Rentable Area
thereof, and Tenant shall not remove or tamper with or use the same and will
permit Landlord to enter the Premises to service, replace, remove or repair the
same.
25. Mechanics' and Other Liens.
25.1. Tenant covenants that it shall not (and has no authority to)
create or allow any encumbrance against the Premises, the Property, or any part
of any thereof or of Landlord's interest therein.
25.2. Tenant covenants that it shall not suffer or permit to be created,
or to remain, any lien or claim thereof (arising out of any work done or
services, material, equipment or supplies furnished for or at the request of
Tenant or by or for any contractor or subcontractor of Tenant, other than such
furnished by Landlord) which is or may become a lien upon the Premises, the
Property, or any part of any thereof or the income therefrom or any fixture,
equipment or similar property therein.
25.3. If any lien or claim shall be filed, Tenant shall within ten (10)
days after the filing thereof, cause the same to be discharged of record by
payment, deposit, bond or otherwise. If Tenant shall fail to cause such lien or
claim to be discharged and removed from record within that period, then, without
obligation to investigate the validity thereof and in addition to any other
right or remedy Landlord may have, Landlord may, but shall not be obligated to,
contest the lien or claim or discharge it by payment, deposit, bond or
otherwise; and
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Landlord shall be entitled, if Landlord so decides, to compel the prosecution of
an action for the foreclosure of such lien by the lienor and to pay the amount
of the judgment in favor of the lienor with interest and costs. Any amounts so
paid by Landlord and all costs and expenses, including attorneys' fees, incurred
by Landlord in connection therewith, together with interest at the Lease
Interest Rate from the respective dates of Landlord's making of the payment or
incurring of the cost or expense, shall constitute Additional Rent payable by
Tenant under this Lease and shall be paid by Tenant to Landlord promptly on
demand.
25.4. Notwithstanding anything to the contrary in this Lease or in any
other writing signed by Landlord, neither this Lease nor any other writing
signed by Landlord shall be construed as evidencing, indicating, or causing an
appearance that any erection, construction, alteration or repair to be done, or
caused to be done, by Tenant is or was in fact for the immediate use and benefit
of Landlord. Further, notwithstanding anything contained herein to the contrary,
nothing contained in or contemplated by this Lease shall be deemed or construed
in any way to constitute the consent or request on the part of Landlord for the
performance of any work or services or the furnishing of any materials for which
any lien could be filed against the Premises or the Property or any part of any
thereof, nor as giving Tenant any right, power, or authority to contract for or
permit the performance of any work or services or the furnishing of any
materials for which any lien could be filed against the Premises, the Property
or any part of any thereof.
26. Estoppel Statement.
26.1. Tenant from time to time, within ten (10) days after request by
Landlord, shall execute, acknowledge and deliver to Landlord a statement, which
may be relied upon by Landlord or any proposed assignee of Landlord's interest
in this Lease or any existing or proposed mortgagee or ground lessor or
purchaser of the Property or any interest therein, certifying (i) that this
Lease is unmodified and in full force and effect (or that the same is in full
force and effect as modified and listing the instruments of modification); (ii)
the dates to which Minimum Rent and all other charges have been paid; (iii)
whether or not Landlord is in default hereunder or whether Tenant has any claims
or demands against Landlord (and, if so, the default, claim and/or demand shall
be specified); (iv) if applicable, that Tenant has accepted possession and has
entered into occupancy of the Premises; (v) the Lease Commencement Date and the
Termination Date, and certifying as to such other matters as Landlord may
reasonably request. Tenant acknowledges that any such statements so delivered by
Tenant may be relied upon by Landlord, any landlord under any ground or
underlying lease, or by any prospective partner, purchaser, mortgagee, lender,
or any assignee of any mortgage.
26.2. The failure of Tenant to execute, acknowledge and deliver to
Landlord a written instrument in accordance with the provisions of this Section
26 within the ten (10) day period above provided shall constitute an
acknowledgment by Tenant, which may be relied upon by Landlord, any landlord
under any ground or underlying lease, or by any prospective purchaser,
mortgagee, lender, or any assignee or any mortgage that this Lease has not been
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modified, supplemented or amended except as set forth in Landlord's request, and
is in full force and effect (or in full force and effect as so modified,
supplemented or amended), that the Minimum Rent, Additional Rent and any other
charges arising hereunder have not been paid beyond the respective due dates
immediately preceding the date of such request, that Tenant has no right of
set-off or other defense to this Lease and of the truth of such other facts and
conditions as shall have been requested to be certified, and shall constitute,
as to any person entitled to rely as aforesaid, a waiver of any defaults which
may exist prior to the date of such request.
27. Covenant of Quiet Enjoyment.
Landlord covenants that Tenant, on paying the Rent and all other charges
or payments herein reserved or payable and on keeping, observing and performing
all the other terms, covenants, conditions, provisions and agreements herein
contained on the part of Tenant to be kept, observed and performed, shall,
during the Term, peaceably and quietly have, hold and enjoy the Premises subject
to the terms, covenants, conditions, provisions and agreements hereof.
28. Brokers.
Tenant represents and warrants to Landlord that it has not dealt with
any broker, agent, finder or other person in the negotiation for or the
obtaining of this Lease other than Xxxxxx & Associates, Inc. and Preferred Real
Estate Advisors, Inc. ("Brokers"), and agrees to indemnify and hold Landlord
harmless from any and all costs (including attorney's fees) and liability for
commissions or other compensation claimed by any such broker, agent, finder or
other person other than Brokers, employed by it or claiming to have been engaged
by it in connection with this Lease. Landlord agrees to pay a fee or commission
owing Brokers on account of this Lease, pursuant to separate written agreements.
29. Limitations on Liability.
29.1. The liabilities of the parties described below shall be qualified
in accordance with this Section 29.
29.2. Tenant Liability. The word "Tenant" as used in this Lease shall be
construed in the plural in all cases where there is more than one tenant (and in
such cases the liability of such tenants shall be joint and several) and the
necessary grammatical changes required to make the provisions hereof apply to
corporations, partnerships, or individuals, men or women, shall in all cases be
assumed to have been made. Each provision hereof shall extend to and as the case
may require, shall bind and inure to the benefit of Tenant and its successors
and assigns, provided that this Lease shall not inure to the benefit of any
assignee or successor of Tenant except upon the express written consent of
Landlord pursuant to Section 12 hereof (unless not required pursuant to
Subsection 12.1 above).
29.3. Landlord Liability.
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29.3.1. It is expressly understood and agreed by Tenant that none
of Landlord's covenants, undertakings or agreements are made or intended as
personal covenants, undertakings or agreements by Landlord or its partners, and
any liability for damage or breach or nonperformance by Landlord shall be
collectible only out of Landlord's interest in the Property and no personal
liability is assumed by, nor at any time may be asserted against, Landlord or
its partners or any of its or their officers, agents, employees, legal
representatives, successors or assigns, if any, all such liability, if any,
being expressly waived and released by Tenant, and in any proceeding or in the
case of any judgment against Landlord, Tenant shall request that the judgment
index be noted to reflect the exclusion from liability herein set forth. In
addition to all other limitations contained in this Lease, Landlord hereby
notifies Tenant that the Declaration of Trust of Hub Properties Trust provides,
and Tenant agrees, that no trustee, officer, director, general or limited
partner, member, shareholder, beneficiary, employee or agent (including any
person or entity from time to time engaged to supervise and/or manage the
operation of Landlord) of Landlord shall be held to any liability, jointly or
severally, for any debt, claim, demand, judgment, decree, liability or
obligation of any kind (in tort, contract or otherwise) of, against or with
respect to Landlord or arising out of any action taken or omitted for or on
behalf of Landlord. In addition to all other limitations contained in this
Lease, Landlord hereby notifies Tenant that the Declaration of Trust of Hub
Properties Trust provides, and Tenant agrees, that no trustee, officer,
director, general or limited partner, member, shareholder, beneficiary, employee
or agent (including any person or entity from time to time engaged to supervise
and/or manage the operation of Landlord) of Landlord shall be held to any
liability, jointly or severally, for any debt, claim, demand, judgment, decree,
liability or obligation of any kind (in tort, contract or otherwise) of, against
or with respect to Landlord or arising out of any action taken or omitted for or
on behalf of Landlord.
29.3.2. The Landlord named on page 1 of this Lease and any
subsequent owners of such Landlord's interest in the Property, as well as their
respective heirs, personal representatives, successors and assigns shall each
have the same rights, remedies, powers, authorities and privileges as it would
have had it originally signed this Lease as Landlord, including the right to
proceed in its own name to enter judgment by confession or otherwise, but any
such person, whether or not named herein, shall have no liability hereunder
after it ceases to hold such interest.
29.3.3. In the event of any sale or other conveyance or transfer
of Landlord's interest in the Property, the transferor shall be and hereby is
entirely free and relieved of all covenants and obligations of Landlord
hereunder, and it shall be deemed and construed without further agreement
between the parties or their successors in interest, or between the parties and
the transferee at any such sale or conveyance or transfer that (subject to the
limitation of Landlord's liability in this Section 29) the transferee has
assumed and agreed to carry out any and all covenants and obligations of
Landlord hereunder, including, without limitation, obligations for all defaults
and claims (if any) arising prior to the date of such transfer.
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29.4. Mortgagee Liability. No mortgagee or ground lessor which shall
succeed to the interest of Landlord hereunder (either in terms of ownership or
possessory rights) shall be: (1) liable for any previous act or omission of any
prior Landlord; (2) subject to any rental offsets or defenses hereunder because
of any act or omission of any prior Landlord; (3) bound by any amendment of this
Lease made without its written consent or by payment by Tenant of Rent in
advance in excess of one (1) month's rent; (4) liable for any security not
actually received by it; or (5) liable for the construction of any of the
improvements to the Premises not constructed by it. Subject to the foregoing,
the provisions hereof shall be binding upon and inure to the benefit of the
successors and assigns of Landlord.
30. Miscellaneous.
30.1. Irrevocable Offer and Required Approval. The submission of this
Lease for examination does not constitute an offer to lease, or a reservation of
or option for the Premises, and this Lease becomes effective only upon execution
and delivery thereof by both Landlord and Tenant. In consideration of Landlord's
administrative expense in considering this Lease and the term of Tenant's
proposed tenancy hereunder, Landlord's reservation of the leased Premises
pending such consideration and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Tenant's submission to
Landlord of this Lease, duly executed by Tenant, shall constitute Tenant's
irrevocable offer to continue for fifteen (15) days from and after receipt by
Landlord of the said Lease duly executed by Tenant or until Landlord shall
deliver to Tenant written notice of rejection of Tenant's offer, whichever shall
first occur. If within said fifteen (15) day period Landlord shall neither
return the Lease duly executed by Landlord nor so advise Tenant of Landlord's
rejection of Tenant's offer, then after said fifteen (15)) day period Tenant
shall be free to revoke its offer.
30.2. Non Waiver. The failure of either party hereto in any one or more
instances to insist upon the strict performance of any one or more of the
agreements, terms, covenants, conditions or obligations of this Lease, or to
exercise any right, remedy or election herein contained, shall not be construed
as a waiver or relinquishment of the right to insist upon such performance or
exercise in the future, and such right shall continue and remain in full force
and effect with respect to any subsequent breach, act or omission.
30.3. Partial Payment. No payment by Tenant or receipt by Landlord of a
lesser amount than the correct Minimum Rent or Additional Rent due hereunder
shall be deemed to be other than a payment on account, nor shall any endorsement
or statement on any check or any letter accompanying any check or payment be
deemed to effect or evidence an accord and satisfaction and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance or pursue any other remedy in this Lease or at law provided.
30.4. Prior Agreements and Amendments. This Lease constitutes the entire
agreement between the parties relating to the subject matter contained herein.
Neither party hereto has made any representations or promises to the other
except as expressly contained
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herein. This Lease supersedes all prior negotiations, agreements, informational
brochures, letters, promotional information and other statements and materials
made or furnished by Landlord or its agents. The submission of this Lease by
Landlord, its attorneys or agents, for examination or execution by Tenant, does
not constitute a reservation of (or option for) the Premises in favor of Tenant
and Tenant shall have no right or interest in the Premises and Landlord shall
have no liability hereunder, unless and until this Lease is executed and
delivered by Landlord. No rights, easements or licenses are acquired in the
Property or in any land adjacent thereto, by Tenant by implication or otherwise,
except as expressly set forth in this Lease. No agreement hereinafter made shall
be effective to change, modify, discharge or effect an abandonment of this
Lease, in whole or in part, unless such agreement is in writing and signed by
the party against whom enforcement of the change, modification, discharge or
abandonment is sought.
30.5. Mortgagee Approval. If any mortgagee shall have the right of
approval of this Lease and such mortgagee shall, subsequent to the execution
hereof by all parties hereto, require a change or changes in this Lease as a
condition of its approval thereof and if within thirty (30) days after notice
from Landlord, Tenant fails or refuses to execute the amendment(s) to this Lease
accomplishing the change or changes which are stated by Landlord as being needed
in connection with the approval of this Lease by the mortgagee, Landlord shall
have the right to cancel this Lease. It is understood and agreed that any such
change or changes required by such mortgagee shall not materially affect or
alter: (1) the Minimum Rent; (2) the size of the Premises; or (3) any Tenant
Work agreed to be performed in the Premises by Landlord.
30.6. Partial Invalidity. If any of the provisions of this Lease, or the
application thereof to any person or circumstances, shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such provision or provisions to persons or circumstances other than those as to
whom or which it is held invalid or unenforceable, shall not be affected
thereby, and every provision of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
30.7. Common Facilities. Tenant and its agents, employees and invitees,
shall have the right to use, in common with all others granted such rights by
Landlord, in a proper and lawful manner, the common walkways and sidewalks on
the Property, the common entranceways, lobbies and elevators furnishing access
to the Premises, and (if the Premises includes less than a full floor) the
common lobbies, hallways and toilet rooms on the floor on which the Premises is
located. Such use shall be subject to such reasonable rules, regulations and
requirements as Landlord may from time to time prescribe with respect thereto.
30.8. Choice of Law. This Lease has been executed and delivered in the
Commonwealth of Pennsylvania and shall be construed in accordance with the laws
of the Commonwealth of Pennsylvania. Any action brought to enforce or interpret
this Lease shall be brought in the court of appropriate jurisdiction in the
county in which the Building is located. Should any provision of this Lease
require judicial interpretation, it is agreed that the court
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interpreting or considering same shall not apply the presumption that the terms
hereof shall be more strictly construed against a party by reason of the rule or
conclusion that a document should be construed more strictly against the party
who itself or through its agent prepared the same. It is agreed and stipulated
that all parties hereto have participated equally in the preparation of this
Lease and that legal counsel was consulted by each responsible party before the
execution of this Lease.
30.9. No Recordation. This Lease shall not be recorded in whole or in
memorandum form by either party hereto without the prior written consent of the
other.
30.10. Receipt of Money. No receipt of money by Landlord from Tenant
after the termination of this Lease or after the service of any notice or after
the commencement of any suit, or after final judgment for the possession of the
Premises, shall reinstate, continue or extend the term of this Lease or affect
any such notice, demand or suit or imply consent for any action for which
Landlord's consent is required.
30.11. No Joint Venture. This Lease shall create only the relationship
of Landlord and Tenant between Landlord and Tenant and no estate shall pass out
of Landlord. Nothing herein is intended to be construed as creating a joint
venture or partnership relationship between the parties hereto.
30.12. No Third Party Beneficiaries. Notwithstanding anything to the
contrary contained herein, no provision of this Lease is intended to benefit any
party other than the signatories hereto and their permitted heirs, personal
representatives, successors and assigns, and no provision of this Lease shall be
enforceable by any other party.
30.13. Exhibits. All exhibits referred to in this Lease are attached
hereto and shall be deemed an integral part hereof.
30.14. Captions. The captions included in this Lease, whether for
sections, subsections, paragraphs, Table of Contents, Exhibits, or otherwise,
are inserted and included solely for convenience and shall not be considered or
given any effect in construing the provisions hereof, and are not to be used in
interpreting this Lease or for any other purpose in the event of any
controversy.
30.15. Representations. Landlord and Manager have made no
representation, agreement, condition, warranty, understanding, or promise,
either oral or written, other than as set forth herein, with respect to the
Lease, the Property, the Premises, or otherwise.
30.16. Gender; Plural Terms; Persons. The masculine, feminine, or neuter
pronoun shall each include the masculine, feminine, and neuter genders. A
reference to person shall mean a natural person, a trustee, a corporation, a
partnership and any other form of legal entity. All references (including
pronouns) in the singular or plural number shall be deemed to
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have been made, respectively, in the plural or singular number as well, as the
context may require.
30.17. Time. Time is of the essence of this Lease with respect to the
performance by Landlord and Tenant of all of their obligations hereunder.
30.18. Waiver of Jury Trial. It is mutually agreed by and between
Landlord and Tenant that they hereby waive trial by jury in any action
proceeding or counter-claim brought by either of the parties hereto against the
other on any matter whatsoever arising out of or in any way connected with this
Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy of the
Premises or claim of injury or damage.
30.19. [Intentionally omitted.]
30.20. Letter of Credit; Security Deposit
30.20.1. Within ten (10) days following Tenant's execution of
this Lease, Tenant shall deposit with Landlord an irrevocable, unconditional
sight draft letter of credit in the amount of $306,965.00, in the form attached
hereto as Exhibit "F" and issued by a banking institution reasonably acceptable
to Landlord (the "Letter of Credit"). Landlord shall hold the Letter of Credit
as security for the full performance by Tenant of all terms, covenants and
conditions of this Lease. Upon the occurrence of an Event of Default, Landlord
may draw upon the Letter of Credit in an amount or amounts sufficient in
Landlord's reasonable judgment to cure said Event of Default. It is understood
that the proceeds of the Letter of Credit are not to be considered as the last
rental due under this Lease. If at any time during the Term of this Lease
Landlord draws against the Letter of Credit in whole or in part in order to cure
an Event of Default, Tenant shall within ten (10) days after demand by Landlord
tender to Landlord a replacement Letter of Credit in the full amount required
hereunder (Tenant's failure to timely do so shall be deemed a failure by Tenant
to pay Rent for purposes of Section 17.1, above). Each Letter of Credit
delivered hereunder shall be subject to the same provisions of this Lease as
apply to a cash security deposit. The Letter of Credit shall have an expiration
date which is not less than one year from its delivery date. If the Term is then
continuing, Tenant shall annually deliver to Landlord a replacement Letter of
Credit at least twenty (20) business days prior to the expiration of the Letter
of Credit then being held by Landlord hereunder. If Tenant shall fail to timely
deliver a replacement Letter of Credit, then Landlord shall be entitled to draw
immediately under the Letter of Credit in Landlord's possession, without being
required to give notice or provide a grace period to Tenant, and shall hold the
funds so drawn as a cash security deposit.
30.20.2. Notwithstanding the provisions of Subsection 30.20.1,
Landlord agrees that the face amount of replacement Letters of Credit provided
under the terms of Subsection 30.20.1 during the Term may be reduced to the
following respective amounts during
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the following respective Lease Years, provided that no Event of Default shall
have occurred during the Term:
Second Lease Year $236,180.50
Third Lease Year $165,397.00
Fourth Lease Year $ 94,612.50
Fifth Lease Year $ 63,075.00
Sixth Lease Year $ 31,537.50
If an Event of Default shall occur, no further reductions in the face amount of
the Letter of Credit shall be permitted thereafter under the terms of this
Subsection 30.20.2.
30.20.3. Notwithstanding the foregoing provisions of this Section
30.20, in the event that at any time during the Term Tenant delivers to Landlord
current audited financial statements of Tenant prepared by an independent
certified public accounting firm reasonably satisfactory to Landlord and
establishing that Tenant has a tangible net worth of at least $5,000,000.00, and
provided that no Event of Default shall have theretofore occurred during the
Term, then Tenant may elect to deposit with Landlord prior to the date of
expiration of the Letter of Credit then in Landlord's possession the sum which
is equal to two (2) months of Minimum Rent at the rate then payable by Tenant
(to be increased as such rate of Minimum Rent increases under this Lease) as
security for the faithful performance by Tenant of all terms, covenants and
condition of this Lease, whereupon Landlord shall return to Tenant the Letter of
Credit then held by Landlord and no further Letter of Credit shall be required
hereunder; provided, however, that upon Landlord's request from time to time
(not more often than annually), Tenant shall deliver to Landlord current audited
financial statements, and if Tenant's tangible net worth is thereby revealed to
be less than $5,000.000.00 Landlord reserves the right to require that Tenant
again post a Letter of Credit in the sum which would then be required hereunder,
which Tenant shall deliver to Landlord within fifteen (15) days following
Landlord's written request. Furthermore, notwithstanding the foregoing
provisions of this Section 30.20, provided that no Event of Default shall have
occurred during the Term, if Tenant timely exercises the renewal option
contained in Section 3.6 hereof, during the Renewal Term no Letter of Credit
shall be required hereunder. Rather, on or before the first day of the Renewal
Term, Tenant will deposit with Landlord the sum which is equal to two (2) months
of Minimum Rent at the rate payable by Tenant during the Renewal Term as
security for the faithful performance by Tenant of all terms, covenants and
conditions of this Lease. If Tenant defaults under this Lease at any time,
Landlord may use, apply or retain the whole or any part of the security
deposited to the extent necessary to cure said default. It is understood that
the deposit is not to be considered as the last rental due under this Lease. If
at any time during the term of this Lease, Landlord applies all or a portion of
this deposit to cure Tenant's default, Tenant shall repay to Landlord within
five (5) days after demand by Landlord any amount necessary to restore the
security deposited to the full sum set forth above.
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30.21. Light and Air. No diminution or shutting off of any light,
air or view by any structure now or hereafter erected shall in any manner affect
this Lease or the obligations of Tenant hereunder, or increase any of the
obligations of Landlord hereunder.
30.22. Monument Sign. During the first Lease Year, Landlord agrees
to construct a monument sign at or about the entrance to the Property on
Virginia Drive, on which names of the tenants of the Building shall be posted.
Tenant shall have the right to post its name on such monument sign at Tenant's
expense and in accordance with Landlord's uniform rules and regulations
respecting the style, size and type of lettering permitted on such sign and
Landlord's prior approval of signage specifications respecting same.
Notwithstanding the foregoing, Landlord's obligation to construct the monument
sign contemplated hereunder shall be contingent upon Landlord obtaining all
necessary governmental permits and approvals, absent which Landlord shall have
no obligation hereunder.
SECTION 17.2 PROVIDES FOR THE CONFESSION OF JUDGMENT AGAINST
TENANT AND FOR EJECTMENT. IN CONNECTION THEREWITH, TENANT, KNOWINGLY,
VOLUNTARILY, INTENTIONALLY AND UPON ADVICE OF SEPARATE COUNSEL, UNCONDITIONALLY
WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR
HEARING UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES AND THE
COMMONWEALTH OF PENNSYLVANIA. WITHOUT LIMITATION OF THE FOREGOING, TENANT HEREBY
SPECIFICALLY WAIVES ALL RIGHTS TENANT HAS OR MAY HAVE TO NOTICE AND OPPORTUNITY
FOR A HEARING PRIOR TO EXECUTION UPON ANY JUDGMENT CONFESSED AGAINST TENANT BY
LANDLORD HEREUNDER.
TENANT (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
LANDLORD HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LANDLORD WILL NOT SEEK TO
EXERCISE OR ENFORCE ITS RIGHTS TO CONFESS JUDGMENT HEREUNDER, AND (II)
ACKNOWLEDGES THAT THE EXECUTION OF THIS LEASE BY LANDLORD HAS BEEN MATERIALLY
INDUCED BY, AMONG OTHER THINGS, THE INCLUSION IN THIS LEASE OF SAID RIGHTS TO
CONFESS JUDGMENT AGAINST TENANT. TENANT FURTHER ACKNOWLEDGES THAT IT HAS HAD THE
OPPORTUNITY TO DISCUSS SAID PROVISIONS WITH TENANT'S INDEPENDENT LEGAL COUNSEL
AND THAT THE MEANING AND EFFECT OF SUCH PROVISIONS HAVE BEEN FULLY EXPLAINED TO
TENANT BY SUCH COUNSEL, AND AS EVIDENCE OF SUCH FACT AN AUTHORIZED OFFICER OF
TENANT SIGNS HIS OR HER INITIALS IN THE SPACE PROVIDED BELOW.
-------------------------
(INITIALS)
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IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties hereto have caused this Lease to be executed by their duly authorized
representatives as of the day and year first above written.
LANDLORD
HUB PROPERTIES TRUST,
a Maryland real estate investment trust
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------------------
Name:
Title: Senior Vice President
TENANT
Attest: REAL MEDIA, INC.
----------------------------- By: /s/ Xxxxxx X. Xxxxxxx
[Corporate Seal] ---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: CFO
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EXHIBIT A
To
000 Xxxxxxxx Xxxxx Lease
PREMISES FLOOR PLAN
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EXHIBIT B
To
000 Xxxxxxxx Xxxxx Lease
CONFIRMATION OF LEASE TERM
THIS IS AN AGREEMENT dated as of the _____ day of ______________ ,
19__ by and between HUB PROPERTIES TRUST ("Landlord") and REAL MEDIA, INC.
("Tenant").
W I T N E S S E T H:
WHEREAS, by a lease dated as of ____________ , 199_, between the
parties hereto (the "Lease") Landlord leased to Tenant and Tenant leased and
took from Landlord, certain premises at 000 Xxxxxxxx Xxxxx, Xxxx Xxxxxxxxxx,
Xxxxxxxxxxxx for the term and upon the terms and conditions more specifically
set forth therein (the "Premises");
WHEREAS, the Lease provides that the parties shall execute a
confirmation of certain terms of the Lease when the Rent Commencement Date (as
defined in the Lease) has occurred;
NOW THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
A. The Lease has not been amended except as follows:
B. The Tenant is now in possession of the Premises.
C. The Tenant acknowledges that the Lease is in full force and
effect.
D. The Lease Commencement Date of the Lease, the Rent Commencement
Date for Phase I] and the Termination Date of the Term of the Lease are as
follows:
E. Tenant's obligation to pay Minimum Rent for Phase I commences on
the Rent Commencement Date for Phase I.
F. Tenant's obligation to pay Minimum Rent for Phase II commences on
the Rent Commencement Date for Phase II.
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IN WITNESS WHEREOF, the parties hereto have caused these presents to
be executed by their duly authorized representatives the day and year first
above written.
LANDLORD
HUB PROPERTIES TRUST
By:
-----------------------------------
Name:
Title:
TENANT
REAL MEDIA, INC.
By:
-----------------------------------
Name:
Title:
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EXHIBIT C
To
000 Xxxxxxxx Xxxxx Lease
000 XXXXXXXX XXXXX
RULES AND REGULATIONS
1. The entrances, sidewalks, halls, passages, concourses, plaza,
elevators, lobbies, stairways, and driveways shall not be obstructed by Tenant
or used for any purpose other than for ingress to and egress from the Premises.
The halls, passages, entrances, elevators, stairways, balconies and roof are not
for the use of the general public, and Landlord shall in all cases retain the
right to control and prevent access thereto of all persons whose presence in the
judgment of Landlord shall be prejudicial to the safety, character, reputation,
or interest of the Building or its tenants, provided that nothing herein
contained shall be construed to prevent such access to persons with whom Tenant
normally deals in the ordinary course of its business unless such persons are
engaged in illegal activities.
2. Tenant, its employees, contractors, agents, servants, visitors, and
licensees shall not go upon the roof or mechanical floors of the Building
without the written consent of Landlord.
3. The exterior windows and doors that reflect or admit light or air into
the Premises or the halls, passageways or other public places in the Building or
the Property, shall not be covered or obstructed by Tenant. No showcase or other
articles shall be put in front or affixed to any part of the exterior of the
Building or the Property, nor placed in the halls, corridors or vestibules, nor
shall any article obstruct any air-conditioning supply or exhaust.
4. No awnings, air conditioning units, fans, aerials, antennas, or other
projections or similar devices shall be attached to the Building, regardless of
whether inside the Building or on its facade or its roof, without the prior
written consent of Landlord. No curtains, blinds, shades or screens shall be
attached to or hung in, or used in connection with, any window, transom or door
of the Premises or the Building without the prior written consent of Landlord.
All curtains, blinds, shades, screens, and other fixtures must be of a quality,
type, design and color, and attached in the manner approved by Landlord. All
electrical fixtures shall be fluorescent, of a quality, type, design, and color
approved by Landlord unless the prior consent of Landlord has been obtained for
any other lighting or xxxxxxx.
5. No Tenant or employees, contractors, agents, servants, visitors, or
licensees of Tenant shall sweep or throw or permit to be placed, left or
discarded from the Premises any rubbish, paper, articles, objects or other
substances into any of the corridors or halls, elevators, or out of the doors or
stairways of the Building.
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6. Tenant shall at all times keep the Premises neat and orderly.
7. Tenant shall not xxxx, paint, drill into, or in any way deface any part
of the Premises, Building or Property. The ceiling shall not be used for the
suspension of any item or fixture, including, without limitation, plants and
decorative items. No boring, drilling of nails or screws, 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 floor tile or other similar
floor covering in the Premises, except with the prior approval of Landlord.
Floor covering shall be affixed to the floor in a manner which permits easy
removal and shall be subject to approval by Landlord prior to installation.
8. No freight, furniture of bulky matter of any description shall be
received into the Building or carried into the passenger or service elevators
except during hours and in a manner approved by Landlord. Any hand trucks,
carryalls, or similar appliances used for delivery or receipt of merchandise or
equipment shall be equipped with rubber tires, side guards and such other
safeguards as Landlord shall require.
9. Tenant shall not permit any work to be done in the Premises including
moving of goods into or out of the Premises except by contractors approved by
Landlord.
10. Any Tenant deciding to move any equipment or office furniture into,
out of, or within the Building must notify Landlord at least one (1) week in
advance of intended move. Such notification shall include: (i) the date of the
move, (ii) the time of move (which shall not be during normal working hours
without Landlord's consent), (iii) the number of elevators and operators
required for the move, and (iv) an agreement by the Tenant to pay the then
prevailing charge for the use of the elevators and operators. Upon receipt of
the above information, Landlord, or its agent, will issue a letter of
authorization to the Tenant to arrange for elevator operators.
11. The service elevator shall not be used by Tenant without Landlord's
prior approval.
12. Tenant shall not alter any lock or install a new or additional lock or
any bolt or other security device on any door of the Premises without prior
written consent of Landlord. If Landlord shall give its consent, Tenant shall in
each case furnish Landlord with two keys for each such lock and security device.
13. No signs, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any Tenant on any part of the outside of the
Premises, Building, or Property, or on the inside of the Premises without the
prior written consent of Landlord. In the event of violation of the foregoing by
Tenant, Landlord may remove same without any liability, and may charge the
expense incurred by such removal to the tenant or tenants violating this rule.
Interior signs on door and directory tablet shall be inscribed, painted or
affixed for each tenant by
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Landlord at the expense of such tenant, and shall be of a size, color and style
acceptable to Landlord.
14. Landlord shall have the right to prohibit any advertising by Tenant
which, in Landlord's opinion, tends to impair the reputation of the Property or
its desirability as a building for offices, and upon written notices from
Landlord, Tenant shall refrain from or discontinue such advertising. In no event
shall Tenant, without the prior written consent of Landlord, use the name of the
Building or use pictures or illustrations of the Property in any advertising
other than in indicating Tenant's address.
15. Dock facilities are to be used only for loading and unloading
procedures. No parking or storage privileges are extended.
16. No dumpsters are to be placed at the loading dock without prior
notification and approval by Landlord.
17. If Tenant desires telecommunications signaling, telephonic, protective
alarm, connections, or other such wires, apparatus, or devices, Landlord will
direct electricians as to where and how the wires are to be introduced. No
boring or cutting for wires or otherwise shall be made without directions and
approval from Landlord. All wires must be clearly tagged at the distributing
boards and junction boxes, and elsewhere as required by Landlord, with the
number of the office to which said wires lead, the purpose of the wires, and the
name of the concern, if any, operating or servicing the same.
18. The electrical, mechanical, and telephone closets, water and wash
closets, drinking fountains and other plumbing, electrical and mechanical
fixtures shall not be used for any purposes other than those for which they were
constructed, and no sweepings, rubbish, rags, coffee grounds, acids or other
substances shall be deposited therein. No access to the electrical, mechanical
and telephone closets will be permitted without the prior consent of Landlord.
All damages resulting from any misuse of the fixtures shall be borne by the
Tenant who, or whose servants, employees, agents, visitors or licensees, shall
have caused the same. No person shall waste water by interfering or tampering
with the faucets or otherwise.
19. Tenant shall not keep upon or attach to the Premises any goods or
chattels which are the subject of a security agreement of other secured
transactions, and all goods, property and chattels to be used or kept or to be
attached upon the Premises shall be owned by Tenant or leased by Tenant,
provided however, that no such leased goods, property or chattels shall be
leased with the understanding that they shall be exempt from levy for rent and
other charges herein reserved as rent.
20. Tenant shall not create, execute, or deliver any financing or security
agreement of any kind that may be considered or give rise to any lien upon the
Premises, the Building, or the Property.
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21. Tenant, any of Tenant's servants, employees, contractors, agents,
visitors, or licensees, shall not at any time use, bring or keep upon the
Premises, the Building, or the Property any flammable, combustible, caustic,
poisonous or explosive fluid, chemical or substance, or any chemical except such
as are components of commercial products not regulated by law in their use or
disposal and as are normally used by occupants of office buildings for ordinary
cleaning and office related supplies in reasonable quantities.
22. No portion of the Premises, Building, or Property shall be used or
occupied at any time for manufacturing, for the storage of merchandise, for the
sale of merchandise, goods or property of any kind at auction or otherwise, or
as sleeping or lodging quarters.
23. In the design, layout, construction, renovation, and/or installation of
Tenant's demising walls, partitions, furniture, fixtures, equipment, and all
other improvements and betterments of or in the Premises, the live load of
seventy (70) pounds per square foot shall not be exceeded at any time.
24. Tenant shall not engage or pay any employees on the Premises, except
those actually working for such Tenant on said Premises.
25. Tenant shall not contract for any work or service which involves the
employment of labor incompatible with the employees of the Building or with
employees of contractors doing work or performing services by or on behalf of
Landlord, or which would disturb harmonious labor relations.
26. No bicycles, vehicles, animals, or birds of any kind (other than a
seeing-eye dog for a blind person), shall be brought into or kept by Tenant in
or about the Premises, the Building, or the Property.
27. Tenant shall not do or commit, or suffer to be done or committed, any
act or thing whereby, or in consequence whereof, the rights of other tenants
will be obstructed or interfered with, or other tenants will in any other way be
injured or annoyed, or whereby the Building will be damaged, nor shall Tenant
cause or suffer to be caused any noise, vibrations, obnoxious odors, or
electronic interference which disturbs other tenants, the operation of their
equipment or the operation of any equipment in the Building (including, without
limitation, radio, television reception). Tenant shall not suffer nor permit the
Premises or any part thereof to be used in any manner or anything to be done
therein nor suffer nor permit anything to be brought into or kept in the
Premises which, in the judgment of Landlord, shall in any way impair or tend to
materially impair the character, reputation, or appearance of the Building.
28. Tenant shall not serve, nor permit the serving of alcoholic beverages
in the Premises unless Tenant shall have procured Host Liquor Liability
Insurance, issued by companies and in amounts reasonably satisfactory to
Landlord, naming Landlord as an additional party insured.
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29. Except as otherwise explicitly permitted in its lease, Tenant shall not
allow any open flames, cooking, the operation or conduct of any restaurant,
luncheonette or cafeteria for the sale or service of food or beverages to its
employees or to others, install or permit the installation or use of any food,
beverage, cigarette, cigar or stamp dispensing machine or permit the delivery of
any food or beverage to the Premises, except by such persons delivering the same
as shall be approved by Landlord.
30. Any person in the Building will be subject to identification by
employees and agents of Landlord. All persons in or entering Building shall be
required to comply with the security policies of the Building. Tenant shall keep
doors to unattended areas locked, and shall otherwise exercise reasonable
precautions to protect property from theft, loss or damage. Landlord shall not
be responsible for the theft, loss or damage of any property.
31. In case of invasion, mob, riot, public excitement, or other commotion,
Landlord reserves the right to prevent access to the Building during the
continuance of the same by closing the doors or otherwise for the safety of
Tenants or Landlord and protection of property in the Building.
32. Landlord shall, in no case, be responsible for the admission or
exclusion of any person to or from the Building for access or for invasion,
hostile attack, insurrection, mob violence, riot, public excitement or other
commotion, explosion, fire or any casualty.
33. Tenant shall immediately notify Landlord of any injury to a person or
damage to property regardless of cause within the Premises and all public areas
within the Building.
34. Canvassing, soliciting, and peddling in the Building is prohibited and
Tenant shall cooperate in preventing the same, and report all such activity to
Landlord.
35. Tenant, upon the termination of the tenancy, shall deliver to Landlord
all of the keys, combinations to all locks, of offices, rooms and toilet rooms
which shall have been furnished Tenant or which Tenant shall have made, and in
the event of loss of any keys so furnished, Tenant shall pay Landlord the cost
therefor.
36. No smoking is permitted within the Premises or elsewhere in the
Building by Tenant or any of its employees, agents, contractors or invitees.
Without limiting the generality of the foregoing, no smoking is permitted upon
the Property outside the Building within a distance of thirty (30) feet of any
Building entrance.
37. These Rules and Regulations shall be read in conjunction with the Lease
and the Exhibits thereto. To the extent these Rules and Regulations are
inconsistent with the remainder of the Lease and Exhibits, the Lease and other
Exhibits shall control.
38. Landlord may, by written notice to Tenant, promulgate additional rules
and regulations, and/or modifications of the rules and regulations which are, in
Landlord's judgment,
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desirable for the general safety, comfort and convenience of occupants and
tenants in the Building. All such rules and regulations shall be deemed a part
of this Lease, with the same effect as though written herein.
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EXHIBIT "D"
TO
000 XXXXXXXX XXXXX LEASE
CLEANING SPECIFICATIONS
IT IS THE INTENT OF THIS EXHIBIT THAT THE BUILDING BE KEPT NEAT AND CLEAN AT ALL
TIMES. THE SPECIFICATIONS OUTLINED BELOW SHOULD, THEREFORE, BE REFERRED TO AS A
MINIMUM STANDARD.
--------------------------------------------------------------------------------
General Cleaning five (5) nights per week, Sunday through Thursday nights,
unless excluded by Union contract, and further, excluding Union Holidays.
NIGHTLY
1. Empty and damp wipe all ash trays.
2. Empty and dust wipe all waste receptacles.
3. Place waste in bags and leave in designated area
off Tenant's premises.
4. Empty, clean and refill smoking urns as needed.
5. Dust all areas within hand high reach; this includes
window xxxxx, wall ledges, chairs, desks, tables,
baseboards, file cabinets, radiators, pictures and all
manner of office furniture.
6. Damp wipe all glass top desks and tables.
7. Damp wipe spillage on furniture in lounges and
lunch room areas.
8. Sweep with treated cloths all composition tile
flooring.
9. Vacuum all carpeted areas and remove spots. Spot
vacuum one night, full vacuum every other night.
10. Sweep and wash rubber mats as necessary.
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GENERAL OFFICE AREAS
Quarterly
Strip, scrub and wash all composition tile flooring.
HIGH DUSTING
Monthly
1. High dust all walls, ledges, pictures, anemostats and
registers of public areas not reached in normal nightly
cleaning.
2. High dust all walls, ledges, pictures, files,
anemostats and registers of office areas not reached in
normal nightly cleaning.
LIGHTS
Quarterly
Dust all lighting fixtures in public areas.
Yearly
1. Wash all lighting fixtures in public areas. (*)
2. Wash all lighting fixtures in office areas. (*)
(*) We would expect lighting fixtures to be
dusted on tube replacement.
STAIRWAYS
Weekly
Sweep and dust stairways.
Monthly
1. Wash all stairways other than fire tower.
2. Sweep and dust fire tower stairways.
Semi-Annually
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Wash fire tower stairways.
ELEVATOR & ESCALATORS
Weekly
1. Clean Passenger elevator saddles.
2. Clean Freight elevator saddles.
MISCELLANEOUS
Yearly
Wash marble walls.
AS NECESSARY
Snow removal.
DAY XXXXXX SERVICE
1. Police all public areas and men's toilets in
Tenant's Premises twice daily.
2. Refill toilet room dispensers in Tenant's
Premises as needed twice daily.
3. Sweep sidewalks.
4. Remove fingermarks from entrance doors.
5. Set out foul whether mats when necessary.
DAY MATRON SERVICES (Twice during daily working hours)
1. Police ladies' restrooms in Tenant's Premises.
2. Refill all toilet room dispensers in Tenant's
Premises, including sanitary napkins.
WINDOW CLEANING SERVICES (Weather and access permitting)
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Daily
1. Clean entrance doors.
2. Clean glass in directors.
Every Three Months
1. Clean all exterior surfaces of exterior windows.
2. Clean clear interior partition glass. (*)
Every Six Months
Clean frosted interior partition glass. (*)
(*) Spot clean all glass, if needed, by night
cleaning crew.
Annually
Clean all interior surfaces of exterior windows.
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EXHIBIT E
To
000 Xxxxxxxx Xxxxx Lease
TENANT'S CONTRACTORS' INSURANCE
Each of Tenant's contractors and subcontractors (herein collectively
"Contractor") shall comply with the terms set forth in this Exhibit E, and any
contract between Owner and Contractor and contain and/or comply with the
following provisions:
I. Insurance/Indemnification Provisions for Construction Contracts.
A. INDEMNITY
Contractor hereby agrees, to the extent permitted by law, to assume the
entire responsibility and liability for and defense of and to pay and indemnify
Landlord(s) and Manager against any loss, expense or liability and will hold
them harmless from and pay any loss, damage, cost or expense (including, without
limitation, judgments, attorney's fees, court costs and the cost of appellate
proceedings), which Landlord(s) and Manager incur(s) because of injury to or
death of any person or on account of damage to property, including loss of use
thereof, or any other claim arising out of, in connection with or as a
consequence of the performance of the Work, and/or any act or omission of the
Contractor or any one for whose acts Contractor may be liable as it relates to
the scope of this Contract. This indemnity shall not be limited by a limitation
on amount or type of damages, compensation or benefits payable by or for a
Contractor or Subcontractor under workers' or workmen's compensation acts,
disability benefit acts or other employee benefit acts. Contractor will purchase
and maintain, or cause to be purchased and maintained, such insurance as will
protect it from any costs and expenses relating to the foregoing, including,
without limitation, contractual coverage covering the foregoing indemnity, and
shall provide Landlord(s) and Manager with certificates evidencing same as set
forth in the Insurance Schedule below.
Contractor will purchase maintain such insurance as will protect it for
this contractual indemnity.
B. INSURANCE TO BE PROVIDED BY CONTRACTOR
Contractor shall before the commencement of any provision of this
contract file, or cause to have filed, certificates with the Landlord(s)
Manager, as outlined in the Insurance Schedule below showing existence of such
insurance which insurance shall be subject to the Landlord's approval as to the
adequacy of protection and compliance with this Contract and the satisfactory
character of the Insurer. In the event that any of the required insurances are
provided on claims-made forms, a copy of each policy, including Declarations
Page showing the
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Retroactive Date, shall be provided to the Landlord. Such
insurance shall be placed with reputable insurance companies licensed to do
business in the Commonwealth of Pennsylvania.
Contractor shall maintain Worker's Compensation and Employer's Liability
Insurance, Comprehensive General Liability, Comprehensive Automobile Liability
and Umbrella Insurance in the amounts set forth in the Insurance Schedule below.
Should the Contractor engage a Subcontractor(s), the same conditions
applicable to the Contractor under this Contract apply to each Subcontractor,
including, but not limited to the indemnity and insurance clauses.
INSURANCE SCHEDULE
Prior to the commencement of any work Contractor shall obtain and
maintain (or cause to be obtained and maintained) the following insurance, at
its own expense, in amounts not less than those specified below:
1. Worker's Compensation insurance in
accordance with the laws of the Commonwealth
of Pennsylvania.
2. Employer's Liability insurance in an amount
not less than $1,000,000.
3. Comprehensive General Liability insurance on an
occurrence form for: (a) bodily injury, and (b)
property damage liability, with limits of
$1,000,000 combined single limit, each
occurrence. Such insurance policy shall include,
but shall not be limited to: Comprehensive Form,
Premises - Operation, Explosion, Collapse,
Underground Hazard, Products/Completed Operations
Hazard (two (2) years extension beyond completion
of Project), Blanket Contractual Coverage
(including coverage for the Indemnity Clauses
provided under this Contract), Broad Form
Property Damage, Independent Contractors,
Personal Injury (employee exclusion deleted).
4. Comprehensive Automobile Liability covering
owned, hired, and non-owned vehicles with
limits of $1,000,000 combined single limit
each occurrence.
5. Excess Liability (Umbrella) insurance with limits
of $4,000,000. NOTE: SHOULD THE CONTRACTOR
PROVIDE COMMERCIAL GENERAL AND/OR EXCESS
LIABILITY INSURANCE, CONTRACTOR MUST ALSO PROVIDE
ISO ENDORSEMENT GS-25-03-11-85, AMENDMENT OF
LIMITS OF INSURANCE, (DESIGNATED PROJECT OR
PREMISES) OR ITS EQUIVALENT.
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The above insurances (#3 through #5) shall, without liability on the
part of Landlord(s) and Manager for premiums thereof include the following:
A. Endorsement as Additional Named Insureds of:
a. Landlord(s) and Manager and their partners,
directors, officers, employees, agents and representatives; and
b. All other Indemnitees named in the Contract.
B. Thirty (30) day prior notice of cancellation to each named insured.
The above insurances shall each contain the following wording verbatim:
Hub Properties Trust (Landlord(s)) and Manager, as Landlord's agent, are
interested in the maintenance of these insurances and it is agreed that these
insurances will not be canceled, materially changed or not renewed without at
least a thirty (30) day advance written notice to the Landlord c/o REIT
Management & Research, Inc., 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
The Contractor shall secure, pay for, and maintain Property Insurance
necessary for protection against loss of owned, borrowed, or rented capital
equipment and tools, including any tools owned by employees, and any tools,
equipment, stagings, towers, and forms owned, borrowed or rented by the
Contractor. The requirement to secure and maintain such insurance is solely for
the benefit of the Contractor. Failure of the Contractor to secure such
insurance or to maintain adequate levels of coverage shall not obligate the
Landlord or his agents and employees for any losses, and the Landlord and his
agents and employees shall have no such liability. The insurance policy for such
Contractor's insurance shall include a waiver of subrogation as follows:
"It is agreed that, in no event, shall this insurance company have any
right of recovery against the Landlord."
6. "All Risk" Builder's Risk Insurance: Waiver of
Subrogation
Tenant agrees that its contract with the Contractor
shall expressly provide that the Contractor and its
subcontractors waive all rights against the Landlord
(the Landlord under this Lease) and all other
Contractors and Subcontractors for damages caused by
perils covered by the Builder's Risk insurance, to be
obtained by Tenant as required by the Lease. The
Contractor and their Subcontractors shall also waive
all rights against the Landlord and all other
contractors and subcontractors for loss or damage to
any equipment used in connection with the Project and
covered by any property insurance. If the policies of
insurance refereed to in this Schedule require an
endorsement to provide for continued
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87
coverage where there is a waiver of subrogation, the
owners of such policies will cause them to be so
endorsed at their expense and provide evidence of such
endorsement to the other parties.
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88
EXHIBIT F
To
000 Xxxxxxxx Xxxxx Lease
LETTER OF CREDIT
To [LANDLORD]
Re: Our Irrevocable Letter of Credit
No.____________________________
We hereby establish our Irrevocable Letter of Credit No.____________
in your favor for the account of_______________________________________ up to an
aggregate amount of $________________________________ which is available by your
draft(s) at sight drawn on ______________________________Bank and accompanied by
the following:
1. The original Letter of Credit and all amendments,
if any.
2. Beneficiary's signed and notarized statement in
the form of Annex "1" attached hereto which forms an integral part of this
Letter of Credit.
This Letter of Credit sets forth in the full the terms of our
undertaking, and such undertaking shall not in any way be modified, amended or
amplified by reference to any document, instrument or agreement referred to
herein or in which this Letter of Credit is referenced to or to which this
Letter of Credit relates, and any such reference any such document, instrument
or agreement.
Drafts drawn under this Letter of Credit must be marked:
"Drawn Under _______________________ Bank Letter of Credit No.__________________
dated ________________________."
Partial draws under this Letter of Credit are permitted.
This Letter of Credit may be assigned by the Beneficiary, without
our prior consent, to any successor in interest of Beneficiary including,
without limitation, successors by purchase, merger, and foreclosure.
We hereby engage with you that draft(s) drawn under and in
compliance with the terms of this Letter of Credit will be duly honored upon
delivery of documents as specified above if presented to us on or before
____________________, when this Letter of Credit will expire. Drafts and
documents to be [delivered/mailed] to [_______________________] Bank, [address].
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89
Unless otherwise expressly stated herein, this Letter of Credit is
subject to the Uniform Customs and Practice for Documentary Credits (1993
Revision, International Chamber of Commerce Paris France, Publication No. 500)
and engages us in accordance with the terms thereof.
Very truly yours,
[BANK]
By:
---------------------------------------------
Authorized Officer
Name:
-------------------------------------------
Title:
------------------------------------------
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90
ANNEX "1"
to
LETTER OF CREDIT
COMMONWEALTH OF PENNSYLVANIA :
:
COUNTY OF___________________ :
On this, the________ day of_______________ , 199___, before me, the
subscriber, a notary public in and for the Commonwealth and County aforesaid,
personally appeared ________________________, who being duly sworn according to
law, represents, deposes and says:
1. He is a representative of [Landlord], a [__________
corporation], and is duly authorized to make the declaration contained herein.
2. [Landlord] is entitled to draw upon this Letter
of Credit in the amount of $____________________ either (i) because this Letter
of Credit will expire within twenty (20) business days or (ii) pursuant to the
provisions of that certain Agreement of Lease, dated as of______________ , as
amended, between_______________________, as Tenant and [_____________________ ],
as Landlord.
Witness my hand and seal this day and year aforesaid.
------------------------- ------------------------------------------------
Notary Public Signature of representative of [Landlord]
My Commission expires:
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91
EXHIBIT G
To
000 Xxxxxxxx Xxxxx Lease
CONSTRUCTION DOCUMENTS
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