Exhibit 10.15
OFFICE SPACE LEASE
for
000 XXXXXXX XXXX, XXXXXXX XXXXXXXXXXXX
by and between
000 XXXXXXX XXXX ASSOCIATES, L.P.
(as Landlord)
and
BROADVIEW NETWORKS, INC.
(as Tenant)
Date: January 31, 2000
THIS LEASE (the "Lease") is made the 31st day of January, 2000
between 000 XXXXXXX XXXX ASSOCIATES, L.P. (herein referred to as "Landlord")
whose address is 0000 Xxxx XxXxxx Xxxx, Xxxxx 000, Xxxxx, Xxxxxxxxxxxx 00000 and
BROADVIEW NETWORKS, INC. (herein referred to as "Tenant"), a New York
corporation, whose address is 00-00 Xxxxx Xxxxxx, Xxxx Xxxxxx Xxxx, XX 00000.
PREAMBLE
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BASIC LEASE PROVISIONS AND DEFINITIONS
In addition to other terms elsewhere defined in this Lease, the
following terms whenever used in this Lease shall have only the meanings set
forth in this section, unless such meanings are expressly modified, limited or
expanded elsewhere herein.
1. ADDITIONAL RENT shall mean all sums in addition to Fixed Basic Rent payable
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by Tenant to Landlord or to third parties pursuant to the provisions of the
Lease.
2. BROKER(S) shall mean Xxxxxx & Associates, Inc. and Equis of New York.
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3. BUILDING shall mean 000 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx as described on
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Exhibit A hereto.
4. BUILDING HOLIDAYS shall be those shown on Exhibit D.
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5. COMMENCEMENT DATE shall mean the date this Lease is fully executed by the
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Landlord and Tenant.
6. DEMISED PREMISES OR PREMISES shall be approximately ten thousand
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(10,000) gross rentable square feet on the first floor of the Building as
designated on Exhibit A-l which includes an allocable share of the Common
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Facilities as defined in Section 2 which measurement shall be subject to final
measurement and agreement by the parties in accordance with 1996 BOMA standards
for multi-tenant office buildings.
7. EXHIBITS shall be the following, attached to this Lease and incorporated
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herein and made a part hereof:
Exhibit A Location of Building
Exhibit A-l Demised Premises
Exhibit B Rules and Regulations
Exhibit C Landlord's Work
Exhibit D Building Holidays
Exhibit E Tenant Estoppel Certificate
Exhibit F Janitorial Specifications
8. EXPENSE STOP shall mean Four Dollars ($4.00)per rentable square foot of the
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Premises.
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9. FIXED BASIC RENT shall be calculated and payable as follows:
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Rate Per
Rentable Rentable Yearly Monthly
Months Sq. Ft. Sq. Foot Rate Installment
l-10 10,000 $ - $ - $ -
11-24 10,000 $17.50 $175,000.00 $14,583.33
25-36 10,000 $18.00 $180,000.00 $15,000.00
37-48 10,000 $18.50 $185,OOO.OO $15,416.67
49-60 10,000 $19.00 $190,000.00 $15,833.33
61-72 10,000 $19.50 $195,000.00 $16,250.OO
73-84 10,000 $20.00 $200,000.00 $16,666.67
85-96 10,000 $20.50 $205,OOO.OO $17,083.33
97-10 10,000 $21.00 $210,000.00 $17,500.00
109-120 10,000 $21.50 $215,OOO.OO $17,916.67
121-130 10,000 $22.00 $220,000.00 $18,333.33
10. OFFICE BUILDING AREA is as set forth on Exhibit A-l
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11. PERMITTED USE shall be general office use and the installation and
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maintenance of equipment and facilities in connection with Tenant's
telecommunications business.
12. PROPORTIONATE SHARE shall mean a fraction, the numerator of which shall be
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the total rentable square feet of the Premises, which figure is the gross
rentable square feet contained within the Premise and the denominator of which
shall be the total rentable square feet of the Building, which figure is 150,000
square feet.
13. SECURITY DEPOSIT shall be none.
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14. TARGET DATE shall be immediately upon full execution of this Lease by the
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parties.
15. TERM shall and mean ten (10)years ten (10)months from the date this Lease
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is fully executed by the Landlord and Tenant plus the number of days which
remain in the calendar month in which such term expires (the "Term")unless
terminated or extended pursuant to any option or provision contained herein.
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TABLE OF CONTENTS
Section Page
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1. Definitions ............................................................ 1
2. Premises ............................................................... 1
3. Completion of Premises ................................................. 1
4. Term ................................................................... 2
5. Use of Premises ........................................................ 2
6. Rent ................................................................... 2
7. Insurance .............................................................. 5
8. Repairs and Maintenance ................................................ 6
9. Utilities and Services ................................................. 7
10. Governmental Regulations ............................................... 8
11. Signs................................................................... 9
12. Alterations, Additions and Fixtures..................................... 9
13. Mechanic's Liens........................................................11
14. Landlord's Right of Entry...............................................12
15. Damage by Fire or Other Casualty........................................12
16. Non-Abatement of Rent...................................................14
17. Indemnification.........................................................14
18. Condemnation............................................................14
19. Quiet Enjoyment.........................................................15
20. Rules and Regulations...................................................16
21. Assignment and Subletting...............................................16
22. Tenant's Expansion/Relocation...........................................19
23. Subordination...........................................................19
24. Curing Tenant's Defaults................................................19
25. Surrender...............................................................20
26. Defaults--Remedies......................................................20
27. Condition of Premises...................................................24
28. Hazardous Substances....................................................24
29. Recording...............................................................25
30. Broker's Commission.....................................................25
31. Notices.................................................................25
32. Irrevocable Offer, No Option............................................26
33. Landlord Inability to Perform...........................................26
34. Survival................................................................26
35. Corporate Tenants............................... ......................26
36. Tenant Representations and Warranties...................................26
37. Waiver of Invalidity of Lease...........................................27
38. Security Deposit........................................................27
39. Estoppel Certificate....................................................27
40. Rights Reserved by Landlord.............................................28
41. Miscellaneous...........................................................29
42. Additional Definitions..................................................31
43. Tenant's Right of First Refusal.........................................32
44. Tenant's Use of the Roof................................................32
For and in consideration of the covenants herein contained, and upon
the terms and conditions herein set forth, Landlord and Tenant, intending to be
legally bound, agree as follows:
1. Definitions. The definitions set forth in the preceding Preamble
shall apply to the same capitalized terms appearing in this Lease Agreement.
Additional definitions are contained in Section 42 and throughout this Lease.
2. Premises. Landlord hereby demises and leases the Premises to
Tenant and Tenant hereby leases and takes the Premises from Landlord for the
Term (as defined in Section 4) and upon the terms, covenants, conditions, and
provisions set forth in this Lease Agreement, including the Preamble (this
"Lease"). The Tenant's interest in the Premises as tenant shall include the
right, in common with Landlord and other occupants of the Building, to use
driveways, sidewalks, loading and parking areas, lobbies, hallways and other
facilities which are located within the Property (defined in Section 6)and which
are designated by Landlord from time to time for the use of all of the tenants
of the Building (the "Common Facilities"). Landlord shall provide Tenant with
four and one-half (4.5) unreserved parking spaces per one thousand rentable
square feet contained within the Premises at no additional cost or rental to
Tenant. In addition to the foregoing, in the event the roof of the Building
cannot support the weight of Tenant's supplemental HVAC units, Tenant shall be
permitted to place such units outside of the Building adjacent to the Premises
in a manner which is reasonably satisfactory to Landlord.
3. Completion of Premises.
a) The Premises shall be delivered to Tenant on the Target Date in
its "As-Is, Where-Is" condition as of the date of this Lease and Landlord shall
not be required to provide any tenant or other improvements thereto except as
otherwise provided herein. Commencing on the Target Date, Tenant shall promptly
construct and install tenant improvements to the Premises in accordance with
plans (the "Plans") prepared by Tenant at Tenant's sole cost and expense and
approved by Landlord in Landlord's reasonable discretion. Landlord shall pay to
Tenant a tenant improvement allowance (the "Allowance") in the amount Twenty
Dollars ($20.00) per rentable square foot of the Premises for use by Tenant in
constructing and installing its tenant improvements therein. Tenant shall
complete the improvements set forth in the Plans and Landlord shall pay the
Allowance to Tenant in two (2) equal installments the first of which shall be
made on or before thirty (30) days after the Target Date and the second of which
shall be made on or before sixty (60) days after the Target Date provided Tenant
is not in default of its obligations hereunder beyond any applicable notice and
cure period and has constructed and installed tenant improvements with a cost in
an amount greater than or equal to the amount of the Allowance being paid to
Tenant at such time, as reasonably determined by Landlord. All improvements and
alterations for the Premises, as specified by the Plans or otherwise, shall be
performed by Tenant in accordance with the terms of this Lease.
b) Landlord shall undertake the work for the Premises as set forth
on
Exhibit C attached hereto ("Landlord's Work") at its sole cost and expense. All
necessary construction shall be commenced promptly following Landlord's
execution and acceptance of this Lease and shall be substantially completed
ready for use and occupancy by Tenant within thirty (30) days of the Target
Date; provided, however, that the time for substantial completion of the
Premises shall be extended for additional periods of time equal to the time lost
by Landlord or Landlord's contractors, subcontractors or suppliers due to
strikes or other labor troubles; delays in Tenant's selection of materials,
plans or specifications; governmental restrictions and limitations;
unavailability or delays in obtaining fuel, labor or materials; war or other
national emergency; accidents; floods; defective materials; fire damage or other
casualties; adverse weather conditions; the inability to obtain building or use
and occupancy permits; or any cause similar or dissimilar to the foregoing which
is beyond the reasonable control of Landlord or Landlord's contractors,
subcontractors or suppliers. In the event Landlord fails to substantially
complete the work necessary to demise the Premises on or before sixty (60) days
from the date this Lease is fully executed, then upon substantial completion of
same, Tenant shall be entitled to two (2) additional days of Rent abatement for
each one (1) day of delay beyond such date until such work is substantially
completed.
c) All construction shall be done in a good and workmanlike manner
and shall comply at the time of completion with all applicable and lawful laws,
ordinances, regulations and orders of the federal, state, county or other
governmental authorities having jurisdiction thereof.
4. Term. [Intentionally Deleted].
5. Use of Premises. Tenant shall occupy the Premises throughout the
Term and shall use the same for, and only for, the Permitted Use specified in
the Preamble. The Building is designed to normal building standards for
floor-loading capacity. Tenant shall not use the Premises in such ways which, in
Landlord's reasonable judgment, exceed such load limits.
6. Rent. Unless otherwise specifically requested by Landlord in
writing at any time, Fixed Basic Rent, Additional Rent and any other rent or
other sums due under this Lease (hereunder collectively referred to as
Rent) shall be paid and delivered to Landlord's property manager, if any, as
agent for Landlord, in the amounts, time and manner more particularly provided
in this Lease.
a. Fixed Basic Rent. Commencing on the Commencement Dates as set
forth in the Preamble, Tenant shall pay, throughout the Term, Fixed Basic Rent
in the amount specified in the Preamble, without notice or demand and without
setoff or deduction, except as otherwise provided herein in equal monthly
installments equal to one-twelfth of the Fixed Basic Rent (specified as Monthly
Installments in the Preamble), in advance, on the first day of each calendar
month during the Term. If the Commencement Date falls on a day other than the
first day of a calendar month, the Fixed Basic Rent shall be apportioned on a
per diem basis for the period between the
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Commencement Date and the first day of the first full calendar month in the Term
and such apportioned sum shall be paid on the applicable Commencement Date.
b. Additional Rent. Commencing on January 1, 200l Tenant shall pay
to Landlord, as Additional Rent, in the manner more particularly set forth
below, Tenant's Proportionate Share of Annual Operating Costs (as defined
below) for the Property to the extent same exceeds the Expense Stop per rentable
square foot of the Premises:
i) Annual Operating Costs. The term "Annual Operating Costs"
shall mean all costs Landlord incurs from owning, operating and maintaining the
Building and the lot or tract of land on which it is situated (the Annual
"Property"). Annual Operating Costs shall include, by way of example rather than
limitation: insurance costs, including premiums; fees; Impositions (defined
below); costs for repairs, maintenance and service contracts; management fees;
landscaping; snow removal; governmental permits fees; costs of compliance with
governmental orders and regulations; administrative and overhead expenses; costs
of furnishing water, sewer, electricity, gas, fuel, and other utility services,
for use in Common Facilities of the Building and Property; and the cost of
janitorial service and trash removal; excluding, however, from Annual Operating
Costs the following: costs which are treated as capital under generally accepted
accounting principles; mortgage debt or ground rents incurred by Landlord as
owner of the Property; income, excess profits, corporate capital stock or
franchise tax imposed or assessed upon Landlord, unless such tax or any similar
tax is levied or assessed, in lieu of all or any part of any currently existing
Imposition or an increase in any currently existing Imposition; but only to the
extent of such substitution and calculated as if the Property was the sole asset
of Landlord, leasing commissions, accountants' consultants or attorneys' fees,
costs and disbursement and other expenses incurred in connection with
negotiations or disputes with tenants or prospective tenants or associated with
the enforcement of any leases or the defense of Landlord's title to or interest
in the Building in connection with any proceedings involving real property taxes
other than disputes regarding tax assessment and reduction of real property
taxes; costs of construction of the Building and related facilities and
correction of defects in construction of the Building (including permit, license
and inspection fees); costs of any items or services sold or provided to tenants
(including Tenant) for which Landlord is entitled to be reimbursed by such
tenants or which are not generally provided to all tenants of the Building; fees
and higher interest charges caused by Landlord's refinancing the Building; all
repairs to the interior of the Building of a structural nature (not made
necessary by unusual use by Tenant); costs incurred due to violation by Landlord
or any tenant of the terms and conditions of any lease; overhead and profit
increment paid to subsidiaries or affiliates of Landlord, or to any party as a
result of a noncompetitive selection process, for management or other services
on or to the Building or for supplies or other materials, to the extent that the
costs of such services, supplies or materials exceed the costs that would have
been paid had the services, supplies or materials been provided by unaffiliated
parties on a competitive basis; general overhead and administrative expenses
except salaries of on-site property manager, management secretary and
maintenance man; any compensation paid to clerks, attendants or other persons in
commercial concessions operated by Landlord, rentals and other related expenses
incurred in leasing air
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conditioning systems, elevators or other equipment ordinarily considered to be
for a capital nature, except equipment which is used in providing janitorial
services and which is not affixed to the Building; all items and services for
which Tenant reimburses Landlord or pays third persons or which Landlord
provides selectively to one or more tenants or occupants of the Building (other
than Tenant) without reimbursement; commissions, advertising, and promotional
expenditures. "Impositions" shall mean all levies, taxes, assessments, charges,
imposts, and burdens, of whatever kind and nature, ordinary and extraordinary,
which are assessed or imposed during the Term by any federal, state or municipal
government or public authority or under any law, ordinance or regulation thereof
or pursuant to any recorded covenants or agreements upon or with respect to the
Property or any part thereof, any improvements thereto, any personal property
necessary to the operation thereof and owned by Landlord or this Lease.
ii) Estimated Payments - Expense Statement and Reconciliation.
(1) Landlord shall submit to Tenant as soon as reasonably
possible after the beginning of each calendar year of the Term, the following:
(a) a statement setting forth (i) the Annual Operating
Costs for the previous calendar year of the Term and (ii) a calculation of
Tenant's Proportionate Share of the increase in the Annual Operating Costs over
the Expense Stop for the previous calendar year (the "Expense Statement"); and
(b) a statement of Landlord's good faith estimate of the
Annual Operating Costs for the current calendar year and a calculation of
Tenant's Proportionate Share of the increase in the Annual Operating Costs over
the Expense Stop for the current calendar year ("Tenant's Estimated Share").
(2) Beginning with the next installment of Fixed Basic Rent due
after the delivery of the aforesaid statements to Tenant, Tenant shall pay to
Landlord, on account of its Proportionate Share of the increase in the Annual
Operating Costs over the Expense Stop, the following:
(a) a sum equal to the product of one-twelfth (l/12)of
Tenant's Estimated Share and the number of calendar months elapsed during the
current calendar year up to and including the month payment is made, plus any
amounts due from Tenant to Landlord on account of Annual Operating Costs for any
prior period(s) of time, less
(b) a sum equal to the amount, if any, by which the sum of
all payments made by Tenant to Landlord on account of Annual Operating Costs for
the previous calendar year exceed those actually specified in the Expense
Statement.
(3) On the first day of each succeeding calendar month until
such time as Tenant receives a new Expense Statement and statement of Tenant's
Estimated Share, Tenant shall pay to Landlord, on account of its Proportionate
Share of Annual
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Operating Costs, one-twelfth (l/12) of the then current Tenant's Estimated
Share. Any payment due from Tenant to Landlord, or any refund due from Landlord
to Tenant, on account of Annual Operating Costs not yet determined as of the
expiration of the Term shall be made within thirty (30) days after submission to
Tenant of the next Expense Statement.
c) Disputes. Unless Tenant, within ninety (90) days after any
statement of Additional Rent is furnished, shall give notice to Landlord that
Tenant disputes said statement, specifying in detail the basis for such dispute,
each statement furnished to Tenant by Landlord under any provision of this
Section shall be conclusively binding upon Tenant as to the particular
Additional Rent due from Tenant for the period represented thereby; provided,
however, that additional amounts due may be required to be paid by any
supplemental statement furnished by Landlord. Tenant shall have the right at
reasonable times to examine the records used in making the aforestated
determinations, upon written notice in advance; provided, however, such disputed
amount shall have been paid by Tenant to Landlord. In the event any such
examination shall reveal an adverse variance in excess of 10% of the total
operating expenses of which Tenant is required to pay their Proportionate Share,
Landlord shall reimburse Tenant for the reasonable cost of such examination
together with the amount of Tenant's overpayment within thirty (30) days after
demand. Tenant shall make all payments of Additional Rent without delay and
regardless of any pending dispute over the amount of Additional Rent that is due
in accordance with the statements furnished by Landlord.
d) Independent Covenant; Survival. Tenant's covenant to pay
Rent is independent of any other covenant, agreement, term or condition of this
Lease. Without limitation of any obligation of Tenant under this Lease which
shall survive the expiration of the Term, the obligation of Tenant to pay Rent
shall survive the expiration of the Term.
7. Insurance.
a) Liability. Tenant, at Tenant's sole cost and expense, shall
maintain and keep insurance in effect throughout the Term against liability for
bodily injury (including death) and property damage in or about the Premises or
the Property under a policy of Commercial general public liability insurance,
with such limits as to each as may be reasonably required by Landlord from time
to time, but not less than $1,000,000 for each person and $2,000,000 in the
aggregate for bodily injury (including death) to more than one (1)person and
$1,000,000 for property damage. The policies of commercial general public
liability insurance shall name Landlord (and if requested, any mortgagee of
Landlord) as an additional party. Each such policy shall provide that it shall
not be cancelable without at least thirty (30) days prior written notice to
Landlord and to any mortgagee named in an endorsement thereto and shall be
issued by an insurer and in a form reasonably satisfactory to Landlord. At least
ten (10) days prior to the Commencement Date, and thereafter upon Landlord's
request, a certificate of insurance shall be delivered to Landlord proving
compliance with the foregoing requirements. If Tenant shall fail, refuse or
neglect to obtain or to maintain any insurance that it is
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required to provide or to furnish Landlord with satisfactory evidence of
coverage on any such policy within 5 days after demand, Landlord shall have the
right to purchase such insurance. All payments made by Landlord for such
insurance shall be recoverable by Landlord from Tenant, together with interest
thereon, as Additional Rent promptly within 10 days after demand.
Notwithstanding anything contained herein to the contrary, Tenant may
self-insure all of its personal property situated within the Premises against
property damage and destruction. Tenant's insurance may be provided under
blanket insurance policies.
b) Waiver of Subrogation. The parties to this Lease each
release the other, to the extent of the releasing party's insurance coverage,
from any and all liability for any loss or damage covered by such insurance
which may be inflicted upon the property of such party even if such loss or
damage shall be brought about by the fault or negligence of the other party, its
agents or employees. If any policy does not permit such a release of liability
and a waiver of subrogation, and if the party to benefit therefrom requests that
such a waiver be obtained, the other party agrees to obtain an endorsement to
its insurance policies permitting such waiver of subrogation if it is available.
If an additional premium is charged for such waiver, the party benefiting
therefrom agrees to pay the amount of such additional premium promptly upon
demand. In the event a party is unable to obtain such a waiver, it shall
immediately notify the other party of its inability. In the absence of such
notifications, each party shall be deemed to have obtained such waiver of
subrogation. Notwithstanding anything to the contrary contained in this Lease,
Landlord shall have no interest in any insurance proceeds Tenant receives for
Tenant's property (not purchased, installed or otherwise paid for using the
Allowance) and Landlord shall sign all documents which are necessary or
appropriate in connection with the settlement of any claim or loss by Tenant.
Tenant's policies shall not be contributing with or in excess of any coverage
which Landlord shall carry on the Building.
c) Increase of Premiums. Tenant will not do anything or fail to
do anything or permit anything to be done which will cause the cost of
Landlord's insurance to increase or which will prevent Landlord from procuring
insurance (including but not limited to public liability insurance) from
companies, and in a form, satisfactory to Landlord. If any breach of this
subsection (c) by Tenant shall cause the rate of fire or other insurance to be
increased, Tenant shall pay the amount of such increase as Additional Rent
promptly upon demand. Notwithstanding anything to the contrary contained in this
Lease, Landlord represents and warrants to Tenant that Tenant's use of the
Premises for the purposes specified herein will not in and of itself violate
Landlord's insurance policies which shall be in effect immediately prior to the
beginning of the Term of this Lease nor increase the premiums therefor.
8. Repairs and Maintenance.
a) Tenant shall, throughout the Term and at Tenant's sole cost
and expense, keep and maintain the Premises in a neat and orderly condition;
and, upon expiration of the Term, Tenant shall leave the Premises in good order
and condition,
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ordinary wear and tear, damage by fire or other casualty alone excepted, and for
that purpose and except as stated, Tenant will make all necessary non-structural
repairs and replacements. Tenant shall not permit any waste, damage or injury to
the Premises. Tenant shall not use or permit the use of any portion of the
Common Facilities for other than their intended use as specified by the Landlord
from time to time.
b) Landlord shall, promptly throughout the Term, make all
necessary repairs to the structural elements of the Premises, the building, and
other improvements located on the Property; provided, however, that Landlord
shall have no responsibility to make any repairs unless and until Landlord
receives written notice of the need for such repair. Landlord shall keep and
maintain all Common Facilities of the Property and any sidewalks, parking areas,
curbs and access ways adjoining the Property in a clean and orderly condition,
free of accumulation of dirt and rubbish and shall keep and maintain all
landscaped areas within the Property in a neat and orderly condition.
Notwithstanding anything to the contrary contained herein, Landlord shall be
responsible for maintaining and repairing the life, fire, and safety systems and
the points of connection thereto to the Premises, and the costs of same shall be
included in Annual Operating Costs.
c) Notwithstanding the foregoing, repairs and replacement to
the Premises and the Property arising out of or caused by Tenant's specific use,
specific manner of use or occupancy of the Premises, by Tenant's installation of
alterations, additions, improvements, trade fixtures or equipment in or upon the
Premises or by any act or omission of Tenant or any employee, agent, contractor
or invitee (while on the Premises) of Tenant shall be made at Tenant's sole cost
and expense and Tenant shall pay Landlord the reasonable cost of any such repair
or replacement, as Additional Rent, within 15 days after demand.
9. Utilities and Services.
a) Landlord shall furnish the Premises with electricity,
heating and air conditioning for the normal use and occupancy of the Premises as
general offices between 8:00 a.m. and 6:00 p.m., Monday through Friday, of
each week during the Term (Building Holidays excepted). Tenant agrees to pay as
Additional Rent all charges for electricity, light, heat or other utility used
by Tenant at the Premises. A separate submeter has been installed and Tenant
shall pay for the consumption of such utilities based upon its metered usage. If
no meter is installed, Tenant shall pay its Proportionate Share of any utility
charges covering the Demised Premises and the remainder of the Building. Tenant
shall pay all bills for separately metered utility usage within ten (10) days
after receipt thereof, and any non-payment or late payment of such utility bills
shall be deemed a default under the terms of this Lease. All charges for repairs
of any meters servicing the Premises shall be payable by Tenant as Additional
Rent and shall be paid when the same shall become due. Notwithstanding anything
to the contrary contained in this Lease, Landlord shall upgrade the electric
service to the Building in order to provide the Premises with 1200 amps which
upgrade shall be done at Landlord's sole cost and expense.
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b) Within the Common Facilities of the Building, Landlord shall
furnish reasonably: (i) adequate electricity, (ii) hot and cold water, (iii)
lavatory supplies, (iv) automatically operated elevator service, (v) normal and
customary cleaning services (on a five-day a week basis) after business hours,
(vi) heat and air conditioning in season, (vii) landscaping, (viii) parking lot
maintenance, (ix) common area maintenance and (x) snow and ice removal. Tenant
shall be responsible for its Proportionate Share of the cost of such services in
accordance with Section 6(b) hereof. Landlord shall provide janitorial service
to the Premises, five days per week, after regular business hours, in accordance
with the janitorial specifications attached hereto as Exhibits F, and the costs
of such service will be passed through to Tenant as set forth in Section 6.
c) Except as otherwise expressly provided herein, Landlord
shall not be liable for any damages to Tenant resulting from the quality,
quantity, failure, unavailability or disruption of any services beyond the
reasonable control of Landlord and the same shall not constitute a termination
of this Lease or an actual or constructive eviction or entitle Tenant to an
abatement of rent. Landlord shall not be responsible for providing any services
not specifically provided for in this Lease. Notwithstanding anything to the
contrary contained herein, in the event there is any failure or defect in
service furnished to the Premises by Landlord's direct control (as opposed to a
public service utility company) or Landlord determines to make any repairs,
additions, alterations, replacements, decorations or improvements in the
Building or the Demised Premises, and Tenant shall be unable for at least
seventy-two (72) hours to operate its business in the Premises in substantially
the same manner as such business was operated prior to such interruption, the
Fixed Basic Rent and Additional Rent shall be reduced on a per diem basis in
their proportion in which the area of the untenantable portion of the Premises
(i.e., the portion of the Premises in which Tenant is unable to operate its
business in substantially the same manner as such business was operated prior to
such interruption) bears to the total area of the Premises, for each day
subsequent to the aforesaid seventy-two (72) hour period that such portion of
the Premises remains unusable. If any such interruption continues for a period
in excess of thirty (30) days, Tenant shall have the right to terminate this
Lease upon notice to Landlord. Tenant, its agents, employees and licensees shall
have access to the premises 24 hours per day, 7 days per week.
10. Governmental Regulations.
a) Landlord and Tenant shall comply with all laws, ordinances,
notices, orders, rules, regulations and requirements of all federal, state and
municipal government or any department, commission, board of officer thereof, or
of the National Board of Fire Underwriters or any other body exercising similar
functions, relating to the Premises or to the use or manner of use of the
Property. Tenant shall not knowingly do or commit, or suffer to be done or
committed anywhere in the Building, any act or thing contrary to any of the
laws, ordinances, regulations and requirements referred to in this Section.
Tenant shall give Landlord prompt written notice of any accident in the Premises
and of any breakage, defect or failure in any of the systems or equipment
servicing the Premises or any portion of the Premises.
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b) Tenant shall pay its Proportionate Share of the cost of
capital improvements which Landlord shall install or construct in compliance
with governmental requirements which take effect after the commencement of the
Term hereof. Tenant's Proportionate Share shall be determined based upon the
estimated life of the capital investment item, determined by Landlord in
accordance with generally accepted accounting principles, and shall include a
cost of capital funds adjustment equal to the rate of Interest on the
unamortized portion of all such costs. Tenant shall only have to pay for the
portion of the useful life of the capital improvement which falls within the
Term. Tenant shall thus make payments in equal annual installments for such
capital improvements until the Term expires or until the cost of the improvement
has been fully paid for, whichever first occurs; such payments shall be computed
by Landlord at the time of installation of the capital improvement in the same
manner as Landlord makes computations of Tenant's share of the Annual Operating
Costs pursuant to Section 6(b)(ii). Landlord represents and warrants that, as of
the Commencement Date, the Premises and all structural parts thereof, including,
without limitation, the foundation, roof, exterior walls, plumbing, electrical
and other mechanical systems (a) will meet and comply with all federal, state
and local laws, ordinances and regulations and all handicapped accessibility
standards, including, without limitation, those promulgated under the Americans
With Disabilities Act ("ADA"), and (b) will be in good, workable and sanitary
order, condition, and repair. Landlord shall correct any latent defects promptly
after Tenant notifies Landlord of any such defect. Notwithstanding anything to
the contrary contained in this Lease, Landlord represents and warrants to the
Tenant that (i) Tenant's Permitted Use shall not in and of itself violate any of
the provisions of this Lease or the provisions of any grant, lease, or mortgage
to which this Lease is subordinate and (ii) Tenant's use of the Premises for the
Permitted Use will not in and of itself violate Landlord's insurance policies
which shall be in effect immediately prior to the commencement of the Term of
this Lease nor increase the premiums therefor.
c) Tenant shall pay all taxes imposed upon Tenant's
furnishings, trade fixtures, equipment or other personal property.
11. Signs. Except for signs which are located wholly within the
interior of the Premises and which are not visible from the exterior of the
Premises, Tenant shall not place, erect, maintain or paint any signs upon the
Premises or the Property unless the design of such signs are approved by
Landlord in writing which approval may be withheld in Landlord's sole
discretion. Tenant shall be entitled to Building standard signage and to have
its name and logo placed on the monument sign located at the Property. Tenant
shall be solely responsible for all costs and expenses associated with the
erection of any signs upon the Premises and shall be obligated to obtain and
provide to Landlord any and all necessary permits prior to the placement or
erection of such signs.
12. Alterations, Additions and Fixtures.
a) Tenant shall have the right to install in the Premises any
trade fixtures; provided, however, that no such installation and no removal
thereof shall be permitted
9
which affects any structural component of the Building or Premises and that
Tenant shall repair and restore any damage or injury to the Premises or the
Property caused by installation or removal.
b) Subsequent to Tenant's initial alterations, Tenant shall not
make or permit to be made any alterations, improvements or additions to the
Premises or Property without on each occasion first presenting plans and
specifications to Landlord and obtaining Landlord's prior written consent, which
shall not be unreasonably withheld or delayed, but may be conditioned upon
compliance with reasonable requirements of Landlord including, without
limitation, the filing of mechanics' lien waivers by Tenant's contractors and
the submission of written evidence of adequate insurance coverage naming
Landlord as an additional insured thereunder. If Landlord consents to any
proposed alterations, improvements or additions or Tenant's contractor performs
any of the work identified in Section 3 of this Lease Agreement, then Tenant
shall make the proposed alterations, improvements and additions at Tenant's sole
cost and expense provided that: (i) Tenant supplies any necessary permits; (ii)
such alterations and improvements do not, in Landlord's judgment, impair the
structural strength of the Building or any other improvements or reduce the
value of the Property; (iii) Tenant takes or causes to be taken all steps that
are otherwise required by Section 13 of this Lease and that are required or
permitted by law in order to avoid the imposition of any mechanic's, laborer's
or materialman's lien upon the Premises or the Property; (iv) Tenant uses a
contractor reasonably approved by Landlord; (v) the occupants of the Building
and of any adjoining real estate owned by Landlord are not annoyed or disturbed
by such work; (vi) the alterations, improvements or additions shall be installed
in accordance with the approved plans and specifications and completed according
to a construction schedule reasonably approved by Landlord; and (vii) Tenant
provides insurance of the types and coverage amounts required by Landlord. Any
and all alterations, improvements and additions to the Premises which are
constructed, installed or otherwise made by Tenant shall be the property of
Tenant until the expiration or sooner termination of this Lease; at that time
all such alterations and additions shall remain on the Premises and become the
property of Landlord without payment by Landlord unless, upon the termination of
this Lease, Landlord instructs Tenant in writing to remove the same in which
event Tenant will remove such alterations, improvements and additions, and
repair and restore any damage to the Property caused by the installation or
removal. Notwithstanding anything to the contrary contained in this Lease,
Landlord may withhold its approval to any proposed alterations, additions or
improvements to the Premises (subsequent to Tenant's initial alterations)in its
absolute and sole discretion with respect to any such alteration, addition or
improvement which Landlord determines involves any modification to the
Building's exterior or its structural, electrical, mechanical or plumbing
systems, or any components thereof. Notwithstanding anything to the contrary
contained in this Lease, upon the expiration or sooner termination of the Term
of this Lease, Tenant shall not be required to restore the Premises to its
condition prior to the making of any alteration permitted under this Section
12(b), except if and to the extent that subsequent to Tenant's initial
alterations to prepare the Premises for Tenant's initial occupancy, such
restoration is made an express condition of Landlord's consent to such
alteration. Notwithstanding anything to the contrary contained in this Lease,
Tenant shall have the right, and is hereby
10
granted a license for such purpose, to use such portions of the common areas of
the Building which are necessary or desirable to support its intended use of the
Premises, including, without limitation, the right to tie into and/or connect
with the vents, pipes, ducts and conduits of the Building in connection with
Tenant's initial alterations to prepare the Premises for Tenant's opening for
business and the providing of utility service to the Premises provided Tenant
gives Landlord notice of same and does not interfere with any other tenant's use
of the Building or their respective premises.
13. Mechanic's Liens. Tenant shall promptly pay any contractors and
materialmen who supply labor, work or materials to Tenant at the Premises or the
Property so as to minimize the possibility of a lien attaching to the Premises
or the Property. Tenant shall take all steps permitted by law in order to avoid
the imposition of any mechanic's, laborer's or materialman's lien upon the
Premises or the Property. Should any such lien or notice of lien be filed for
work performed for Tenant other than by Landlord, Tenant shall cause such lien
or notice of lien to be discharged of record by payment, deposit, bond or
otherwise within thirty (30) days after the filing thereof or after Tenant's
receipt of notice thereof, whichever is earlier, regardless of the validity of
such lien or claim. If Tenant shall fail to cause such lien or claim to be
discharged and removed from record within such thirty (30) day period, then,
without obligation to investigate the validity thereof and in addition to any
other right or remedy Landlord may have, Landlord may, but shall not be
obligated to, contest the lien or claim or discharge it by payment, deposit,
bond or otherwise; and Landlord shall be entitled to compel the prosecution of
an action for the foreclosure of such lien by the lienor and to pay the amount
of the judgment in favor of the lienor with interest and costs. Any amounts so
paid by Landlord and all costs and expenses including, without limitation,
reasonable attorney's fees incurred by Landlord in connection therewith,
together with Interest from the respective dates of Landlord's making such
payment or incurring such cost or expense, which shall constitute Additional
Rent payable hereunder promptly upon demand therefor. Nothing in this Lease is
intended to authorize Tenant to do or cause any work or labor to be done or any
materials to be supplied for the account of Landlord, all of the same to be
solely for Tenant's account and at Tenant's risk and expense. Further,
notwithstanding anything to the contrary contained in this Lease, nothing
contained in or contemplated by this Lease shall be deemed or construed in any
way to constitute the consent or request by Landlord for the performance of any
work or services or the furnishing of any materials for which any lien could be
filed against the Premises or the Building or the Property or any part of any
thereof, nor as giving Tenant any right, power or authority to contract or
permit the performance of any work or services or the furnishing of any
materials for which any lien could be filed against the Premises, the Building,
the Property or any part of any thereof. Throughout this Lease the term
"mechanic's lien" is used to include any lien, encumbrance or charge levied or
imposed upon the Premises or the Property or any interest therein or income
therefrom on account of any mechanic's, laborer's or materialman's lien or
arising out of any debt or liability to or any claim or demand of any
contractor, mechanic, supplier, materialman or laborer due to work done for or
materials supplied to Tenant (other than Landlord's Work)and shall include
without limitation any mechanic's notice of intention given to Landlord or
Tenant, any stop order given to Landlord or Tenant, any notice of refusal to pay
naming
11
Landlord or Tenant and any injunctive or equitable action brought by any person
entitled to any mechanic's lien.
14. Landlord's Right of Entry.
a) Tenant shall permit Landlord and the authorized
representatives of Landlord and of any mortgagee or any prospective mortgagee to
enter the Premises at all reasonable times, upon at least 24 hours prior notice
(which may be oral) to Tenant, for the purpose of (i) inspecting the Premises or
(ii) making any necessary repairs to the Premises or to the Building and
performing any work therein. During the progress of any work on the Premises or
the Building, Landlord will attempt not to inconvenience Tenant, but shall not
be liable for inconvenience, annoyance, disturbance, loss of business or other
damage to Tenant by reason of making any repair or by bringing or storing
materials, supplies, tools and equipment in the Premises during the performance
of any work, except as otherwise expressly provided herein and the obligations
of Tenant under this Lease shall not be thereby affected in any manner
whatsoever.
b) Landlord shall have the right at all reasonable times to,
with prior notice to Tenant, enter and to exhibit the Premises for the purpose
of inspection or showing the Premises in connection with a sale or mortgage and,
during the last six (6) months of the Term, to enter upon and to exhibit the
Premises to any prospective tenant.
15. Damage by Fire or Other Casualty.
a) If the Premises or Building is damaged or destroyed by fire
or other casualty, Tenant shall promptly notify Landlord whereupon Landlord
shall, subject to the consent of Landlord's present or future mortgagee and to
the conditions set forth in this Section 15, repair, rebuild or replace such
damage and restore the Premises to substantially the same condition as the
Premises were in immediately prior to such damage or destruction; provided,
however, that Landlord shall only be obligated to restore such damage or
destruction to the extent of the proceeds of fire and other extended coverage
insurance policies. Notwithstanding anything to the contrary contained in this
Lease, if the Premises is damaged or destroyed by fire or any casualty which
cannot, despite diligent, good faith efforts be repaired or restored within one
hundred eighty (180) days following the date on which such damage occurs, then
Tenant or Landlord may elect to terminate this Lease effective as of the date of
such damage or destruction. Within thirty (30) days after the date of such
damage, the parties shall determine how long the repair and restoration will
take. After that determination has been made, if the determination is that the
restoration will take more than one hundred eighty (180) days to complete,
Tenant and Landlord shall have a period of thirty (30) days to terminate this
Lease by giving written notice to the other. If neither party elects to
terminate this Lease as provided herein, then Landlord shall, subject to the
provisions of this Section, promptly commence and diligently pursue to
completion the repair of such damage so that the Premises are restored to a
condition of similar quality, character and utility for Tenant's purposes. If
the Premises are not substantially repaired and restored within two hundred and
forty (240) days of the date of the damage, Tenant may cancel this Lease at
12
any time before Landlord substantially completes the repairs and delivers the
restored Premises to Tenant. If Tenant does not so terminate, Landlord shall
continue to restore the Premises. In the event of termination, Landlord shall
return any prepaid Fixed Basic Rent, Additional Rent and any other prepaid
amounts to Tenant within thirty (30) days from the date of termination of this
Lease. If any damage or destruction occurs to the Premises during the last year
of the Term and the cost to repair the damage exceeds Five Hundred Thousand
Dollars ($500,000.00) either Landlord or Tenant may terminate this Lease upon
giving the other party thirty (30) days written notice; provided, however, that
if Landlord notifies Tenant that it wishes to terminate this Lease, then Tenant
may, if it has not already done so, exercise its right to extend the term of the
Lease under Rider A, whereupon Landlord's election to terminate shall be null
and void. If Landlord is required to repair or restore the Premises under any
provision of this Article and Tenant's use of the Premises is affected, then
until Landlord completes such repair or restoration, Fixed Basic Rent,
Additional Rent and all other charges payable by Tenant hereunder shall xxxxx in
their entirety, unless Tenant remains in possession of the Premises, in which
event such rent and other charges shall xxxxx based on the portion of the
Premises which is not being used by Tenant.
b) The repair, rebuilding or replacement work shall be
commenced promptly and completed with due diligence, taking into account the
time required by Landlord to effect a settlement with, and procure insurance
proceeds from, the insurer, and for delays beyond Landlord's reasonable control.
c) The net amount of any insurance proceeds recovered by reason
of the damage or destruction of the Building (meaning the gross insurance
proceeds excluding proceeds received pursuant to a rental coverage endorsement
and the cost of adjusting the insurance claim and collecting the insurance
proceeds) shall be applied towards the cost of restoration. Notwithstanding
anything to the contrary in this Lease Agreement, if in Landlord's reasonable
opinion the net insurance proceeds will not be adequate to complete such
restoration, Landlord shall have the right to terminate this Lease and all the
unaccrued obligations of the parties hereto by sending a written notice of such
termination to Tenant specifying a termination date no less than ten (10) days
after its transmission; provided, that Landlord terminates all other office
Leases in the Building affected by such casualty If the net insurance proceeds
are more than adequate, the amount by which the net insurance proceeds exceed
the cost of restoration will be retained by Landlord or applied to repayment of
any mortgage secured by the Premises.
d) Landlord's obligation or election to restore the Premises
under this Section shall be subject to the terms of any present or future
mortgage affecting the Premises and to the mortgagee's consent if required in
the mortgage and shall not, in any event, include the repair, restoration or
replacement of the fixtures, improvements, alterations, furniture or any other
property owned, installed, made by, or in the possession of Tenant.
e) Landlord shall maintain insurance against loss or damage to
the Building by fire and such other casualties as may be included within fire
and extended
13
coverage insurance or all-risk insurance, together with a rental coverage
endorsement or other comparable form of coverage. If Tenant is dispossessed of
the Premises due to fire or other casualty, Tenant will receive an abatement of
its Fixed Basic Rent during the period Tenant is dispossessed to the extent of
payments received by Landlord from the carrier providing the rental coverage
endorsement.
16. Non-Abatement of Rent. Except as otherwise expressly provided in
this Lease there shall be no abatement or reduction of the Fixed Basic Rent,
Additional Rent or other sums payable hereunder for any cause whatsoever and
this Lease shall not terminate, nor shall Tenant be entitled to surrender the
Premises, in the event of fire, casualty or condemnation or any default by
Landlord under this Lease.
17. Indemnification
a) Unless such loss, costs or damages were caused by negligence
of Landlord, its employees, agents or contractors, Tenant hereby agrees to
indemnify, defend and hold the Landlord and its employees, agents and
contractors harmless from any loss, costs and damages (including reasonable
attorney's fees and costs) suffered by Landlord, its agents, employees or
contractors, as a result of any claim by a third party, its agents, employees or
contractors arising from Tenant's occupancy of the Premises. Tenant shall have
the right to designate counsel acceptable to Landlord, such approval not be
unreasonably withheld, to assume the defense of any such third party claim on
behalf of itself and Landlord. Landlord shall not have the right to settle any
claim without the consent of Tenant. This indemnity shall survive the expiration
or termination of this Lease.
b) Unless such loss, costs or damages were caused by negligence
of Tenant, its employees, agents or contractors, Landlord hereby agrees to
indemnify, defend and hold the Tenant and its employees, agents and contractors
harmless from any loss, costs and damages (including reasonable attorney's fees
and costs) suffered by Tenant, its agents, employees or contractors, as a result
of any claim by a third party, its agents, employees or contractors arising from
Landlord's ownership and operation of the Property. Landlord shall have the
right to designate counsel acceptable to Tenant, such approval not be
unreasonably withheld, to assume the defense of any such third party claim on
behalf of itself and Tenant. Tenant shall not have the right to settle any claim
without the consent of Landlord. This indemnity shall survive the expiration or
termination of this Lease.
c) If Landlord brings any action under this Lease Agreement,
Tenant agrees in each case to pay Landlord's reasonable attorney's fees and
other costs and expenses incurred by Landlord in connection therewith; provided,
however, the Landlord prevails in such action.
18. Condemnation.
a) Condemnation of Premises. If any portion of the Premises is
taken
14
under the power of eminent domain, or sold by Landlord under the threat of the
exercise of said power (the act of which is herein referred to as
"condemnation"), this Lease shall terminate as to the part so taken as of the
date the condemning authority takes possession of the condemned portion of the
Premises (the "Condemnation Date"). If the entire Premises is condemned, then
the Lease shall automatically terminate as of the Condemnation Date. The party
who receives the condemnor's notice of intention to take (the "Condemnation
Notice") shall immediately give a copy of such notice to the other Party
b) Condemnation of the Property. If as a result of any
condemnation of the Property or any portion thereof (even though the Premises is
not physically affected) or (a) the number of parking spaces on the Property is
reduced by more than fifty (50) spaces and Landlord does not provide alternative
parking which is reasonably accessible, then Tenant may terminate this Lease at
any time after Tenant receives the Condemnation Notice by giving Landlord thirty
(30) days written notice.
c) Condemnation of the Building. If a condemnation of any
portion of the Building (even though the Premises is not physically
affected) renders the Building unsuitable for use as an office Building in the
Landlord's reasonable business judgment, then Landlord may terminate this Lease
by giving the Tenant at least thirty (30) days written notice. Notwithstanding
the foregoing, Landlord may only exercise its right to terminate under this
Section if Landlord terminates the Leases of all other tenants in the Building.
d) Restoration. If this Lease is not terminated as to the whole
Premises, (a) it shall remain in full force and effect as to the portion of the
Premises remaining, provided the Fixed Basic Rent and all other charges payable
hereunder shall be reduced in the same proportion that the area taken bears to
the total area of the Premises prior to the taking, and (b) Landlord shall use
the condemnation award to restore the Premises and the Building as soon as
reasonably possible to a complete unit of the same quality, character and
utility for Tenant's purposes existing prior to the condemnation. If the Lease
is not terminated but the Premises cannot be restored (as reasonably determined
by Landlord and Tenant) to substantially the same condition as existed prior to
the date of the condemnation within one hundred and eighty (180) days, then this
Lease shall terminate upon written notice from either party to the other.
e) Award. In the event of a condemnation affecting Tenant,
Tenant shall have the right to make a claim against the condemnor for removal
expenses and moving expenses, loss of business and any other claims Tenant may
have; provided and to the extent, however, that such claims or payments do not
reduce the sums otherwise payable by the condemnor to Landlord. Except as
aforesaid, Tenant hereby waives all claims against Landlord and against the
condemnor, and Tenant hereby assigns to Landlord all claims against the
condemnor including, without limitation, all claims for leasehold damages and
diminution in value of Tenant's leasehold interest.
19. Quiet Enjoyment. Tenant, upon paying the Fixed Basic Rent,
Additional
15
Rent and other charges herein required and observing and keeping all covenants,
agreements and conditions of this Lease, shall quietly have and enjoy the
Premises during the Term without hindrance or molestation by anyone claiming by
or through Landlord, subject, however, to the exceptions, reservations and
conditions of this Lease.
20. Rules and Regulations. The Landlord hereby reserves the right to
prescribe, from time to time, at its sole discretion, reasonable rules and
regulations (herein called the "Rules and Regulations") attached hereto as
Exhibit B governing the use and enjoyment of the Premises and the remainder of
=========
the Property. The Rules and Regulations shall not materially interfere with the
Tenant's use and enjoyment of the Premises in accordance with the provisions of
this Lease for the Permitted Use and shall not increase or modify Tenant's
obligations under this Lease. In the event of a conflict between the Lease
Agreement and such rules and regulations, the Lease Agreement shall control. The
Tenant shall comply at all times with the Rules and Regulations and shall cause
its agents, employees, invitees, visitors, and guests to do so.
21. Assignment and Sublease.
a) Tenant may assign this Lease or sublet the whole or any
portion of the Premises, subject to the Landlord's prior written consent, which
consent shall not be unreasonably withheld or delayed on the basis of the
following terms and conditions:
i) The Tenant shall provide to the Landlord the name and
address of the assignee or subtenant.
ii) The assignee or subtenant shall assume, by written
instrument, all of the obligations of this Lease, and a copy of such assumption
agreement shall be furnished to the Landlord within ten (10) days of its
execution. Any sublease shall expressly acknowledge that said subtenant's rights
against Landlord shall be no greater than those of Tenant.
iii) The Tenant and each assignee shall be and remain
liable for the observance of all the covenants and provisions of this Lease,
including, but not limited to, the payment of Fixed Basic Rent and Additional
Rent reserved herein, through the entire Term of this Lease, as the same may be
renewed, extended or otherwise modified.
iv) The Tenant and any assignee shall promptly pay to
Landlord one-half of the net profit received from such subleasing or assignment.
Net profit will be calculated after deducting the Tenant's Transfer Expenses (as
hereinafter defined). "Transfer Expenses" shall mean (i) the reasonable out-of-
pocket costs and expenses of Tenant in making such sublease or assignment, as
the case may be, such as market rate brokers' fees, reasonable attorneys' fees
and advertising fees, (ii) any fees paid to Landlord pursuant to the terms of
this Lease, (iii) the cost of improvements or alterations made by Tenant
expressly for the purpose of preparing the Premises for such subtenant or
assignee, and (iv) the unamortized cost of any Tenant's property leased to and
used by such subtenant
16
or assignee. In determining Transfer Expenses, the costs set forth in clauses
(i), (ii) and (iii) shall be amortized on a straight-line basis over the term of
the sublease, or the remainder of the term of this Lease, if an assignment, and
the costs set forth in clause (iv) shall be amortized on a straight-line basis
over the greater of (x) the longest useful life of such improvements,
alterations or property (as permitted pursuant to the Internal Revenue Code of
1986, as amended), or (y) the term of the sublease, or the remainder of the Term
of this Lease, if an assignment.
v) In any event, the acceptance by the Landlord of any
rent from the assignee or from any of the subtenants or the failure of the
Landlord to insist upon a strict performance of any of the terms, conditions and
covenants herein shall not release the Tenant herein, nor any assignee assuming
this Lease, from any and all of the obligations herein during and for the entire
Term of this Lease.
vi) Landlord shall require a Five Hundred Dollars
($500.00) payment to cover its handling charges for each request for consent to
any sublet or assignment prior to its consideration of the same. Tenant
acknowledges that its sole remedy with respect to any assertion that Landlord's
failure to consent to any sublet or assignment is unreasonable shall be the
remedy of specific performance and Tenant shall have no other claim or cause of
action against Landlord as a result of Landlord's actions in refusing to consent
thereto.
b) Notwithstanding anything to the contrary in this Lease,
Tenant may, upon ten (10) days written notice to Landlord but without Landlord's
prior written consent, and without Landlord having any right to terminate this
Lease or share in any consideration or profit therefor, assign or transfer its
entire interest in this Lease and the leasehold estate hereby created, or
sublease the entire demised premises, to a successor corporation of Tenant,
which for the purposes of this Lease shall mean either (a) any corporation or
other business entity which controls, is controlled by, or under common control
with, Tenant (a "related corporation"), or (b) a corporation or other business
entity into which or with which Tenant, its corporate successors or assigns, is
merged or consolidated, in accordance with applicable statutory provisions for
the merger or consolidation of corporations, provided that by operation of law
or by effective provisions contained in the instruments of merger or
consolidation the liabilities of the corporations or other business entities
participating in such merger or consolidation are assumed by the corporation or
other business entity surviving such merger or consolidation, or (c) a
corporation or other business entity acquiring substantially all of Tenant's
assets, or (d) any successor to a successor corporation becoming such by any of
the methods described in subdivisions (a), (b) and (c) above; provided, however,
that Tenant shall have no such right to assign or transfer to a successor
corporation unless Tenant shall not be in default in the performance of any of
its obligations under this Lease beyond the applicable notice and cure period
and provided that in the event of such merger, consolidation or transfer of (i)
the successor to Tenant has a net worth computed in accordance with generally
accepted accounting principles at least equal to the greater of (1) the net
worth of Tenant immediately prior to such merger, consolidation or transfer, or
(2) the net worth of Tenant herein named on the date of this Lease, and (ii)
proof satisfactory to Landlord of such net worth shall have been delivered to
Landlord at least ten
17
(10) days prior to the effective date of any such transaction. For the purposes
hereof "control" shall be deemed to mean ownership of not less than fifty
percent (50%) of all of the voting stock of such corporation, or not less than
fifty percent (50%) of all of the legal and equitable interest in any other
business entity, or he possession of the power, directly or indirectly, to
direct or cause the direction of management and policy of a corporation or other
business entity, whether through the ownership of voting securities, common
directors or officers, the contractual right to manage the business affairs of
such business entity, or otherwise. Notwithstanding anything to the contrary
contained in this Lease and (x) any sale or transfer of Tenant's capital stock
through any public exchange, or redemption or issuance of additional stock of
any class, shall not be deemed an assignment, subletting or any other transfer
of this Lease or the Premises
d) In the event that any or all of Tenant's interest in the
Premises and/or this Lease is transferred by operation of law to any trustee,
receiver, or other representative or agent of Tenant, or to Tenant as a debtor
in possession, and subsequently any or all of Tenant's interest in the Premises
and/or this Lease is offered or to be offered by Tenant or any trustee,
receiver, or other representative or agent of Tenant as to its estate or
property (such person, firm or entity being hereinafter referred to as the
"Grantor", for assignment, conveyance, lease, or other disposition to a person,
firm or entity other than Landlord (each such transaction being hereinafter
referred to as a "Disposition"), it is agreed that Landlord has and shall have a
right of first refusal to purchase, take, or otherwise acquire, the same upon
the same terms and conditions as the Grantor thereof shall accept upon such
Disposition to such other person, firm, or entity; and as to each such
Disposition the Grantor shall give written notice to Landlord in reasonable
detail of all of the terms and conditions of such Disposition within twenty (20)
days next following its determination to accept the same but prior to accepting
the same, and Grantor shall not make the Disposition until and unless Landlord
has failed or refused to accept such right of first refusal as to the
Disposition, as set forth herein. Landlord shall have sixty (60) days next
following its receipt of the written notice as to such Disposition in which to
exercise the option to acquire Tenant's interest by such Disposition, and the
exercise of the option by Landlord shall be effected by notice to that effect
sent to the Grantor; but nothing herein shall require Landlord to accept a
particular Disposition or any Disposition, nor does the rejection of any one
such offer of first refusal constitute a waiver or release of the obligation of
the Grantor to submit other offers hereunder to Landlord. In the event Landlord
accept such offer of first refusal, the transaction shall be consummated
pursuant to the terms and conditions of the Disposition described in the notice
to Landlord. In the event Landlord rejects such offer of first refusal, Grantor
may consummate the Disposition with such other person, firm, or entity; but any
decrease in price of more than two percent (2%) of the price sought from
Landlord or any change in the terms of payment for such Disposition shall
constitute a new transaction requiring a further option of first refusal to be
given to Landlord hereunder.
e) Without limiting any of the provisions of this Section 21,
if pursuant to the Federal Bankruptcy Code (herein referred to as the "Code"),
or any similar law hereafter enacted having the same general purpose, Tenant is
permitted to assign this Lease notwithstanding the restrictions contained in
this Lease, adequate assurance of future performance by an assignee expressly
permitted under such Code shall be deemed to mean
18
the deposit of cash security in an amount equal to the sum of one year's Fixed
Basic Rent plus an amount equal to the Additional Rent for the calendar year
preceding the year in which such assignment is intended to become effective,
which deposit shall be held by Landlord for the balance of the Term, without
interest, as security for the full performance of all of Tenant's obligations
under this Lease, to be held and applied in the manner specified for any
security deposit required hereunder.
f) Except as specifically set forth above, no portion of the
Premises or of Tenant's interest in this Lease may be acquired by any other
person or entity, whether by assignment, mortgage, sublease, transfer, operation
of law or act of the Tenant, nor shall Tenant pledge its interest in this Lease
or in any security deposit required hereunder.
22. Tenant's Relocation. [Intentionally Deleted].
23. Subordination. The estate of this Lease and Tenant's rights
hereunder shall be subject and subordinate at all times in lien and priority to
any first mortgage or other primary encumbrance now or hereafter placed upon or
affecting the Property or the Premises, and to any second mortgage or
encumbrance with the consent of the first mortgagee, and to all renewals,
modifications, consolidations and extensions thereof, without the necessity of
any further instrument or act on the part of the Tenant. Tenant shall execute
and deliver upon demand any further instrument or instruments confirming the
subordination of this Lease to the lien of any such first mortgage or to the
lien of any other mortgage, if requested to do so by Landlord with the consent
of the first mortgagee, and any further instrument or instruments of attorment
that may be desired by any such mortgagee or Landlord, provided, however, that
any holder of such lien or mortgage agrees not to disturb the use and occupancy
of the Premises in accordance with the terms of this Lease Agreement upon any
foreclosure. Notwithstanding the foregoing, any mortgagee may at any time
subordinate its mortgage to this Lease, without Tenant's consent, by giving
notice in writing to Tenant and thereupon this Lease shall be deemed prior to
such mortgage without regard to their respective dates of execution and
delivery. In that event such mortgagee shall have the same rights with respect
to this Lease as though this Lease had been executed prior to the execution and
delivery of the mortgage and had been assigned to such mortgagee. Landlord
agrees that it will use best efforts to obtain and deliver to Tenant a
subordination, non-disturbance and attornment agreement from the holder(s)of any
mortgage or other security interest affecting the Premises of Building.
24. Curing Tenant's Defaults. If Tenant defaults in the performance
of any of its obligations hereunder, beyond any applicable notice and cure
period Landlord may, without any obligation to do so and in addition to any
other rights it may have in law or equity, elect to cure such default on behalf
of Tenant after written notice (except in the case of emergency) to Tenant.
Tenant shall reimburse Landlord upon demand for any reasonable sums paid or
costs incurred by Landlord in curing such default, including interest thereon
from the respective dates of Landlord's making the payments and incurring such
costs, which sums and costs together with interest thereon shall be deemed
Additional Rent payable within ten (10) days of demand.
19
25. Surrender.
a) At the expiration or earlier termination of the Term Tenant
shall promptly yield up the Premises and all improvements, alterations and
additions thereto, and all fixtures and equipment servicing the Premises in a
condition which is clean of garbage and debris and broom clean and in the same
condition, order and repair in which they are required to be kept throughout the
Term, ordinary wear and tear excepted.
b) Tenant, upon three (3) months prior written notice to
Landlord, Tenant may extend the Term, or if applicable, any renewal term, of the
Lease for one (1) additional three (3) month period and during such period, all
the terms and conditions of this Lease shall apply and Tenant shall pay Fixed
Basic Rent at the rate then being paid by Tenant. If Tenant, or any person
claiming through Tenant, continues to occupy the Premises after the expiration
or earlier termination of the Term or any renewal thereof without prior written
consent of Landlord, the tenancy under this Lease shall become, at the option of
Landlord, expressed in a written notice to Tenant and not otherwise, either from
month-to-month, terminable by Landlord on thirty (30) days prior notice, under
the same terms and conditions set forth in this Lease; except, however, that the
Fixed Basic Rent during such continued occupancy shall be 150% of the amount set
forth in subsection 6(a) and Tenant shall indemnify Landlord for any loss or
damage incurred by reason of Tenant's failure to surrender the Premises.
Anything to the contrary notwithstanding, any holding over by Tenant without
Landlord's prior written consent shall constitute a default hereunder and shall
be subject to all the remedies set forth in subsection 26(b) hereof.
26. Defaults-Remedies.
a) Defaults. It shall be an event of default under this Lease
if any one or more of the following events occur:
i) Tenant fails to pay in full, within five (5) days
after when due and without demand, any and all installments of Fixed Basic Rent
or Additional Rent or any other charges or payments due and payable under this
Lease whether or not herein included as rent.
ii) Tenant violates or fails to perform or otherwise
breaches any agreement, term, covenant or condition contained in this Lease and
fails to cure same within 20 days after notice.
iii) Tenant abandons or vacates the Premises without
notice without having first paid to Landlord in full all Fixed Basic Rent,
Additional Rent and other charges that have become due as well as all which will
become due thereafter through the end of the Term.
iv) Tenant becomes insolvent or bankrupt in any sense or
makes
20
an assignment for the benefit of creditors or if a petition in bankruptcy or for
reorganization or for an arrangement with creditors under any federal or state
law is filed by or against Tenant, or a xxxx in equity or other proceeding for
the appointment of a receiver or similar official for any of Tenant's assets is
commenced, or if any of the real or personal property of Tenant shall be levied
upon by any sheriff, marshal or constable; provided, however, that any
proceeding brought by anyone other than the parties to this Lease under any
bankruptcy, reorganization arrangement, insolvency, readjustment, receivership
or similar law shall not constitute an event of default until such proceeding,
decree, judgment or order has continued unstayed for more than sixty
(60) consecutive days.
b) Remedies. Upon the occurrence of an event of default under
this Lease, Landlord shall have all of the following rights:
i) Landlord may charge a late payment charge of five
(5%) percent of any amount owed to Landlord pursuant to this Lease which is not
paid within five (5) days of the due date which is set forth in the Lease or, if
a due date is not specified in this Lease, within thirty (30) days of the
mailing of a xxxx therefor by Landlord. If Landlord incurs a late charge in
connection with any payment which Tenant has failed to make within the times
required in this Lease, Tenant shall pay Landlord, in addition to such payment
due, the full amount of such late charge incurred by Landlord. Nothing in this
Lease shall be construed as waiving any rights of Landlord arising out of any
default of Tenant, by reason of Landlord's imposing or accepting any such late
charge(s) and/or interest; the right to collect such late charge(s) and/or
interest is separate and apart from any rights relating to remedies of Landlord
after default by Tenant including, without limitation, the rights and remedies
of Landlord provided herein. For the first time in any calendar year that Tenant
has failed to pay any such monthly installment of Fixed Basic Rent or Additional
Rent, such interest and late charge shall not apply unless Tenant has failed to
make such payments within five (5) days of receipt of Landlord's written notice
of such delinquency. Landlord shall not be required to give Tenant such notice
more than once in any calendar year prior to assessing such interest and late
charge.
ii) Landlord may accelerate the whole or any part of the
Fixed Basic Rent and all Additional Rent for the entire unexpired balance of the
Term of this Lease, as well as all other charges, payments, costs and expenses
herein agreed to be paid by Tenant, and any Fixed Basic Rent or other charges,
payments, costs and expenses so accelerated shall, in addition to any and all
installments of rent already due and payable and in arrears and any other charge
or payment herein reserved, included or agreed to be treated or collected as
rent and any other charge, expense or cost herein agreed to be paid by Tenant
which may be due and payable and in arrears, be deemed due and payable as if, by
the terms and provisions of this Lease, such accelerated rent and other charges,
payments, costs and expenses were on that date payable in advance but in the
event that the Premises are relet, Tenant shall be entitled to a credit in an
amount equal to the net sum of rents actually received by Landlord in reletting
after deduction of all reasonable expenses.
21
iii) Landlord may re-enter the Premises and, at the
option of Landlord, remove all persons and all or any property therefrom, either
by summary dispossess proceedings or by any suitable action or proceeding at law
without being liable for prosecution or damages therefor, and Landlord may
repossess and enjoy the Premises. Upon recovering possession of the Premises by
reason of or based upon or arising out of a default on the part of Tenant,
Landlord may, at Landlord's option, either terminate this Lease or make such
alterations and repairs as may be necessary in order to relet the Premises and
may relet the Premises or any part or parts thereof, either in Landlord's name
or otherwise, for a term or terms which may, at Landlord's option, be less than
or exceed the period which would otherwise have constituted the balance of the
Term of this Lease and at such rent or rents and upon such other terms and
conditions as in Landlord's reasonable discretion may seem advisable and to such
person or persons as may in Landlord's discretion seem best; upon each such
reletting all rents received by Landlord from such reletting shall be applied as
follows: first, to the payment of any reasonable costs and expenses of such
reletting, including all costs of alterations and repairs; second, to the
payment of any indebtedness other than Fixed Basic Rent, Additional Rent or
other charges due hereunder from Tenant to Landlord; third, to the payment of
Fixed Basic Rent, Additional Rent and other charges due and unpaid hereunder;
and the residue, if any, shall be held by Landlord and applied in payment of
future rent as it may become due and payable hereunder. If rentals received from
reletting during any month are less than that to be paid during that month by
Tenant, Tenant shall pay any such deficiency to Landlord. Such deficiency shall
be calculated and paid monthly. No such re-entry or taking possession of the
Premises or the making of alterations or improvements thereto or the reletting
thereof shall be construed as an election on the part of Landlord to terminate
this Lease unless written notice of termination is given to Tenant. Landlord
shall in no event be liable in any way whatsoever for failure to relet the
Premises or, in the event that the Premises or any part or parts thereof are
relet, for failure to collect the rent thereof under such reletting.
Notwithstanding any such reletting without termination, Landlord may at any time
thereafter elect to terminate this Lease for such previous breach.
iv) Landlord may terminate this Lease and the Term
without any right on the part of Tenant to waive the forfeiture by payment of
any sum due or by other performance of any condition, term or covenant broken.
Upon such termination, Landlord shall be entitled to recover, in addition to any
and all sums and damages for violation of Tenant's obligations hereunder in
existence at the time of such termination, damages for Tenant's default in an
amount equal to the amount of the Fixed Basic Rent and Additional Rent reserved
for the balance of the Term, as well as all other charges, payments, costs and
expenses herein agreed to be paid by Tenant all of which amount shall be
immediately due and payable from Tenant to Landlord upon demand therefor.
v) WHEN THIS LEASE AND THE TERM OR ANY EXTENSION OR
RENEWAL THEREOF SHALL HAVE BEEN TERMINATED ON ACCOUNT OF ANY DEFAULT BY TENANT,
OR WHEN THE TERM HAS EXPIRED, IT SHALL BE LAWFUL FOR ANY ATTORNEY OF ANY COURT
OF RECORD TO APPEAR AS ATTORNEY FOR TENANT AS WELL AS FOR ALL
22
PERSONS CLAIMING BY, THROUGH OR UNDER TENANT, AND TO FILE AN AGREEMENT FOR
ENTERING IN ANY COMPETENT COURT AN ACTION FOR JUDGMENT IN EJECTMENT AGAINST
TENANT AND ALL PERSONS CLAIMING BY, THROUGH OR UNDER TENANT FOR THE RECOVERY BY
LANDLORD OF POSSESSION OF THE PREMISES, FOR WHICH THIS LEASE SHALL BE A
SUFFICIENT WARRANT; WHEREUPON, IF LANDLORD SO DESIRES, AN APPROPRIATE WRIT OF
POSSESSION MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR WRIT OR PROCEEDING WHATSOEVER,
AND PROVIDED THAT IS FOR ANY REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED
IT SHALL BE DETERMINED AND POSSESSION OF THE PREMISES REMAIN IN OR BE RESTORED
TO TENANT, LANDLORD SHALL HAVE THE RIGHT FOR THE SAME DEFAULT AND UPON ANY
SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON THE TERMINATION OF THIS LEASE OR
TENANT'S RIGHT OF POSSESSION AS HEREINBEFORE SET FORTH, TO BRING ONE OR MORE
FURTHER ACTIONS IN EJECTMENT AS HEREINBEFORE SET FORTH TO CONFESS JUDGMENT FOR
THE RECOVERY OF POSSESSION OF THE PREMISES.
c) Waiver of Jury Trial. IT IS MUTUALLY AGREED BY AND BETWEEN
LANDLORD AND TENANT THAT (A)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 OF OCCUPANCY OF THE
PREMISES OR CLAIM OF INJURY OR DAMAGE, AND (B) IN ANY ACTION BY LANDLORD AGAINST
TENANT, THE LEGAL FEES OF THE PREVAILING PARTY WILL BE PAID BY THE OTHER PARTY
TO THE ACTION.
d) Non-Waiver. No waiver by Landlord of any breach by Tenant of
any of Tenant's obligations, agreements or covenants herein shall be a waiver of
any subsequent breach or of any other obligation, agreement or covenant, nor
shall any forbearance by Landlord to seek a remedy for any event of default by
Tenant be a waiver by Landlord of any rights and remedies with respect to such
or any subsequent event of default.
e) Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to Landlord is intended to be exclusive of any other
right or remedy provided herein or by law, but each shall be cumulative and in
addition to every other right or remedy given herein or now or hereafter
existing at law or in equity or by statute.
f) Duty to Mitigate. Notwithstanding any other provisions of
this Lease, Landlord shall use all commercially reasonable efforts to mitigate
its damages and relet the Premises. Landlord's duty to mitigate damages shall be
deemed satisfied if Landlord lists the Premises for lease with a reputable
commercial real estate broker who reasonably markets the Premises and Landlord
subsequently deals with any tenant prospects, in a
23
commercially reasonable manner.
27. Condition of Premises. Tenant represents that the Property and
the Premises, the have been examined by Tenant and Tenant accepts them in the
condition or state in which they now are, or any of them now is, without relying
on any representation, covenant or warranty, express or implied, in fact or in
law, by Landlord and without recourse to Landlord, the nature, condition or
usability thereof or the use or uses to which the Premises and the Property or
any part thereof may be put under present zoning ordinances or otherwise, except
as to work to be performed by Landlord pursuant to Section 3 and except as to
latent defects in such work.
28. Hazardous Substances.
a) Landlord and Tenant shall not cause or allow the generation,
treatment, storage or disposal of Hazardous Substances on or near the Premises
or Property. "Hazardous Substances" shall mean (i) any hazardous substance as
that term is defined in the Comprehensive Environmental Response, Compensation
and Liability Act ("CERCLA"), 42 U.S.C. 9601 et seq., as amended, (ii) any
------
hazardous waste or hazardous substance as those terms are defined in any local,
state or Federal law, regulation or ordinance not inapplicable to the Premises
and Property, or (iii) petroleum including crude oil or any fraction thereof. In
the event Landlord or Tenant uses any Hazardous Substances, Landlord or Tenant
shall dispose of such substances in accordance with all applicable Federal,
state and local laws, regulations and ordinances.
b) Landlord and Tenant agree to indemnify, defend and hold
harmless the other, its employees, agents, successors, and assigns, from and
against any and all damage, claim, liability, or loss, including reasonable
attorneys' and other fees, arising out of or in any way connected to the
generation, treatment, storage or disposal of Hazardous Substances by Landlord
or Tenant, its employees, agents, contractors, or invitees, on or near the
Premises or Property. Such duty of indemnification shall include, but not be
limited to damage, liability, or loss pursuant to all Federal, state and local
environmental laws, rules and ordinances, strict liability and common law.
c) Landlord and Tenant agree to notify each other immediately
of any disposal of Hazardous Substances in the Premises or Property, of any
discovery of Hazardous Substances in the Premises, or of any notice by a
governmental authority or private party alleging or suggesting that a disposal
of Hazardous Substances on or near the Premises or Property may have occurred.
Furthermore, Landlord and Tenant agree to provide the other with full and
complete access to any documents or information in its possession or control
relevant to the question of the generation, treatment, storage, or disposal of
Hazardous Substances on or near the Premises.
d) Landlord represents and warrants that, to the best of its
knowledge, there are no Hazardous Substances in, under or about the Building.
Landlord shall be responsible, at its sole cost and expense, for compliance with
any governmental law, order, regulation, or requirement relating to the removal,
encapsulation, or other
24
treatment of any asbestos containing materials or other Hazardous Substances
located within or about the Premises as of the date of this Lease, and for the
removal of any asbestos or asbestos containing materials or other Hazardous
Substances within or about the Premises, unless the presence of any such
asbestos or other Hazardous Substances was caused by Tenant, or its employees,
agents or invitees.
29. Recording. Neither this Lease nor a memorandum of this Lease
shall be recorded in any public records without the written consent of Landlord.
30. Brokers' Commission. Tenant and Landlord represent and warrant to
each other that the Brokers (as defined in the Preamble) are the sole brokers
with whom each has negotiated in bringing about this Lease and Tenant and
Landlord agree to indemnify and hold each other and Landlord's mortgagee(s)
harmless from any and all claims of other brokers and expenses in connection
therewith arising out of a representations made herein. In no event shall
Landlord's mortgagee(s) have any obligation to any broker involved in this
transaction. Landlord shall pay the Brokers' commissions pursuant to a separate
agreement.
31. Notices. All notices, demands, requests, consents, certificates,
and waivers required or permitted hereunder from either party to the other shall
be in writing and sent by United States certified mail, return receipt
requested, postage prepaid, or by recognized overnight courier, addressed as
follows:
If to Tenant:
Broadview Networks, Inc.
00-x0 Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxx Xxxx, XX 00000
Atten: Xxxxx Xxxxxxx, Vice President
with a copy to:
Xxxxxxx Krooks Xxxx and Ball P.C.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
If to Landlord:
000 Xxxxxxx Xxxx Associates, L.P.
c/o X'Xxxxx Properties Group, L.P.
0000 Xxxx XxXxxx Xxxx, Xxxxx 000
Xxxxx, XX 00000
Attn: President
25
with a copy to:
Xxxxx X. Xxxxx, Esquire
Xxxxxxx Xxxxxx Gold and Xxxxx
0000 Xxxx XxXxxx Xxxx, Xxxxx 000
Xxxxx, XX 00000
Either party may at any time, in the manner set forth for giving notices to the
other, specify a different address to which notices to it shall thereafter be
sent.
32. Irrevocable Offer: No Option. Although Tenant's execution of this
Lease shall be deemed an offer irrevocable by Tenant, the submission of this
Lease by Landlord to Tenant for examination shall not constitute a reservation
of or option for the Premises. This Lease shall become effective only upon
execution thereof by an authorized officer of the general partner of the
Landlord and by an authorized officer of Tenant.
33. Inability to Perform. In the event either party shall be delayed
or hindered in or prevented from the performance of any covenant, agreement,
work, service, or other act required under this Lease to performed by such party
(other than Tenant's obligation to pay Rent) and such delay or hindrance is due
to strikes, lockouts, failure of power or other utilities, injunction or other
court or administrative order, governmental law or regulations which prevent or
substantially interfere with the required performance, condemnations, riots,
insurrections, martial law, civil commotion, war, fire, flood, earthquake, or
other casualty, acts of God, or other causes not within the reasonable control
of such party, the performance of any covenant, agreement, work, service, or
other act shall be excused for the period of delay and the period for the
performance of the same extended by the period.
34. Survival. Notwithstanding anything to the contrary contained in
this Lease, the expiration of the Term of this Lease, whether by lapse of time
or otherwise, shall not relieve Tenant from its obligations accruing prior to
the expiration of the Term.
35. Corporate Tenants. If Tenant is a corporation, the person(s)
executing this Lease on behalf of Tenant hereby covenant(s) and warrant(s) that:
Tenant is a duly formed corporation qualified to do business in the state in
which the Property is located; Tenant will remain qualified to do business in
said state throughout the Term and any renewals thereof; and such persons are
duly authorized by such corporation to execute and deliver this Lease on behalf
of the corporation.
36. Tenant Representations and Warranties. Tenant hereby represents
and warrants to Landlord (i) that Tenant's most recent financial statements
delivered to Landlord in connection with the execution of this Lease are true in
all material respects and no material adverse changes have occurred with respect
thereto, (ii) that upon Landlord's request in connection with Landlord's efforts
to refinance the Property or to sell the Property, or at the request of
Landlord's mortgagee, Tenant will deliver to Landlord current financial
statements which shall be prepared in accordance with
26
generally accepted accounting principles consistently applied, and (iii) during
the Term of the Lease, no material adverse change shall occur with respect to
Tenant's financial condition.
37. Waiver of Invalidity of Lease. Each party agrees that it will not
raise or assert as a defense to any obligation under the Lease or make any claim
that the Lease is invalid or unenforceable due to any failure of this document
to comply with ministerial requirements including, without limitation,
requirements for corporate seals, attestations, witnesses, notarizations or
other similar requirements and each party hereby waives the right to assert any
such defenses or make any claim of invalidity or unenforceability due to any of
the foregoing.
38. Security Deposit. [Intentionally Deleted].
39. Estoppel Certificate.
a) Tenant shall from time to time, within five (5) days after
Landlord's request or that of any mortgagee of Landlord, execute, acknowledge
and deliver to Landlord a written instrument in recordable form, substantially
in the form attached hereto as Exhibit E (a "Tenant Estoppel Certificate"),
certifying (i) that this Lease is in full force and effect and has not been
modified, supplemented or amended (or, if there have been modifications,
supplements or amendments, that it is in full force and effect as modified,
supplemented or amended, and stating such modifications, supplements and
amendments); (ii) the dates to which Fixed Basic Rent and Additional Rent and
any other charges arising hereunder have been paid; (iii) the amount of any
prepaid rents or credits due Tenant, if any; (iv) if applicable, that Tenant has
accepted possession and has entered into occupancy of the Premises, and
certifying the Commencement Date and the Termination Date; (v) whether or not,
to the best of the Tenant's knowledge, all conditions under the Lease to be
performed by Landlord prior thereto have been satisfied and whether or not
Landlord is then in default in the performance of any covenant, agreement or
condition contained in this Lease and specifying each, if any, unsatisfied
condition and each, if any, default of which Tenant may have knowledge; and
(vi) any other fact or condition related to the Lease or the Tenant reasonably
requested. Any certification delivered pursuant to the provisions of this
Article shall be intended to be relied upon by Landlord and any mortgagee or
prospective mortgagee or purchaser of the Property or of any interest therein.
b) The failure of Tenant to execute, acknowledge and deliver to
Landlord a written Tenant Estoppel Certificate in accordance with the provisions
of this Section 39 within said five (5) day period shall constitute an
acknowledgment by Tenant, which may be relied upon by any mortgagee or
prospective mortgagee or any purchaser of the Property or of any interest
therein, that this Lease has not been modified, supplemented or amended except
as set forth in landlord's request, and is in full force and effect (or in full
force and effect as so modified, supplemented or amended), that the Base Rent,
Additional Rent and any other charges arising hereunder have not been paid
beyond the respective due dates immediately preceding the date of such request,
that Tenant has no
27
right of set-off or other defense to this Lease and of the truth of such other
facts and conditions as shall have been requested to be certified, and shall
constitute, as to any person entitled to rely as aforesaid, a waiver of any
defaults which may exist prior to the date of such request. Notwithstanding the
foregoing, Tenant's failure to furnish a Tenant Estoppel Certificate within said
five (5)day period shall constitute a default under this Lease.
c) Landlord, at any time, and from time to time, on the written
request of Tenant, will execute, acknowledge and delivery to Tenant a
certificate certifying the then current status of the Lease and providing any
other information reasonably requested by Tenant, all substantially in
accordance with Tenant's similar obligations as set forth in this Section 39.
40. Rights Reserved by Landlord. Landlord waives no rights, except
those that may be specifically waived herein, and explicitly retains all other
rights including, without limitation, the following rights, each of which
Landlord may exercise without notice to Tenant and without liability to Tenant
for damage or injury to property, person or business on account of the exercise
thereof, and the exercise of any such rights shall not be deemed to constitute
an eviction or disturbance of Tenant's use or possession of the Premises and
shall not give rise to any claim for set-off or abatement of Rent or any other
claim except as otherwise expressly provided herein: Notwithstanding anything to
the contrary contained in this Lease, any changes, additions or alterations by
Landlord shall not (i) impair access to, visibility of, or frontage of, the
Demised Premises or (ii) materially affect the conduct of Tenant's customary
business therein.
a) Upon sixty (60) days prior notice to change the name or
street address of the Building.
b) To install, affix and maintain any and all signs on the
exterior and on the interior of the Building.
c) Upon prior reasonable notice to decorate or to make repairs,
alterations, additions, or improvements, whether structural or otherwise, in and
about the Building, or any part thereof, and for such purposes to enter upon the
Premises and during the continuance of any of such work, to temporarily close
doors, entry ways, public space and corridors in the Building and to interrupt
or temporarily suspend services or use of facilities, all without affecting any
of Tenant's obligations hereunder except as otherwise expressly provided herein,
so long as the Premises are reasonably accessible and usable.
d) To furnish door keys for the entry door(s)in the Premises on
the Commencement Date and to retain at all times, and to use in appropriate
instances, keys to all doors within and into the Premises. Tenant agrees to
purchase only from Landlord additional duplicate keys as required, to change no
locks, and not to affix locks on doors without the prior written consent of the
Landlord which consent shall not be unreasonably withheld or delayed Upon the
expiration of the Term or Tenant's right to possession, Tenant shall return all
keys to Landlord and shall disclose to Landlord the combination of
28
any safes, cabinets or vaults left in the Premises.
e) To designate and approve all window coverings used in the
Building.
f) To approve the weight, size and location of heavy equipment
and articles in and about the Premises and the Building so as not to exceed the
legal load per square foot designated by the structural engineers for the
Building, and to require all such items and furniture and similar items to be
moved into or out of the Building and Premises only at such reasonable times and
in such reasonable 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 the Permitted Use, of the Premises without the prior written consent
of Landlord which consent shall not be unreasonably withheld or delayed. The
movement of Tenant's property into or out of the Building or the Premises and
within the Building are entirely at the risk and responsibility of Tenant, and
Landlord reserves the right to require written authorization from Tenant, in
form and content reasonably satisfactory to Landlord, before allowing any
property to be moved into or out of the Building or Premises.
g) To regulate delivery of supplies and the usage of the
loading docks, receiving areas and freight elevators.
h) To enter the Premises in accordance with Section 14, and, if
vacated or abandoned, to show the Premises at any time and to prepare the
Premises for reoccupancy.
i) To erect, use and maintain pipes, ducts, wiring and
conduits, and appurtenances thereto, in and through the Premises.
j) To grant to any person or to reserve unto itself the
exclusive right to conduct any business or render any service in the Building
other than a competitor of Tenant. If Landlord elects to make available to
tenants in the Building any services or supplies, or arranges a master contract
therefor, Tenant agrees to obtain its requirements, if any, therefor from
Landlord or under any such contract, provided that the charges therefor are
reasonably consistent with market rates.
k) To alter the layout, design and/or use of the Building in
such manner as Landlord, in its sole discretion, deems appropriate, so long as
the character of the Building as a first class office building is maintained.
41. Miscellaneous.
a) Entire Agreement. This Lease represents the entire agreement
between the parties hereto and there are no collateral or oral agreements or
understandings between Landlord and Tenant with respect to the Premises or the
Property. No rights, easements or licenses are acquired in the Property or any
land adjacent to the Property by Tenant by implication or otherwise except as
expressly set
29
forth in the provisions of this Lease.
b) Modification. This Lease shall not be modified in any manner
except by an instrument in writing executed by the parties. In addition, Tenant
agrees to make such changes to this Lease as are required by any mortgagee,
provided such changes do not substantially affect Tenant's rights and obligation
hereunder.
c) Interpretation. The masculine (or neuter) pronoun, singular
number, shall include the masculine, feminine and neuter genders and the
singular and plural number.
d) Exhibits. Each writing or plan referred to herein as being
attached as an Exhibit or otherwise designated herein as an Exhibit hereto is
hereby made a part hereof.
e) Captions and Headings. The captions and headings of
sections, subsections and the table of contents herein are for convenience only
and are not intended to indicate all of the subject matter in the text and they
shall not be deemed to limit, construe, affect or alter the meaning of any
provisions of this Lease and are not to be used in interpreting this Lease or
for any other purpose in the event of any controversy.
f) Interest. Wherever interest is required to be paid
hereunder, such interest shall be at the highest rate permitted under law but
not in excess of the prime rate (as set forth in the Wall Street Journal plus
two percentage points per annum).
g) Severability. If any term or provision of this Lease, or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be valid and be enforced to the fullest
extent permitted by law.
h) Joint and Several Liability. If two or more individuals,
corporations, partnerships or other persons (or any combination of two or more
thereof) shall sign this Lease as Tenant, the liability of each such individual,
corporation, partnership or other persons to pay the Rent and perform all other
obligations hereunder shall be deemed to be joint and several, and all notices,
payments and agreements given or made by, with or to any one of such
individuals, corporations, partnerships or other persons shall be deemed to have
been given or made by, with or to all of them. In like manner, if Tenant shall
be a partnership or other legal entity, the members of which are, by virtue of
any applicable law or regulation, subject to personal liability, the liability
of each such member shall be joint and several.
i) No Representations by Landlord. Landlord and Landlord's
agents have made no representations, agreements, conditions, warranties,
understandings or promises, either oral or written, other than as expressly set
forth herein, with respect to
30
this Lease, the Premises and/or the Building.
j) Relationship of Parties. This Lease shall not create any
relationship between the parties other than that of Landlord and Tenant.
k) Choice of Law. The terms of this Lease shall be construed
under the laws of the Commonwealth of Pennsylvania, and that exclusive
jurisdiction and venue shall be in the Court of Common Pleas of the County in
which the Property is located.
42. Additional Definitions.
a) "Date of this Lease" or "date of this Lease" shall mean the
date of acceptance of this Lease by the Landlord, following execution and
delivery thereof to Landlord by Tenant and that date shall be inserted in the
space provided in the Preamble.
b) "Landlord" as used herein includes the Landlord named above
as well as its successors and assigns, each of whom shall have the same rights,
remedies, powers, authorities and privileges as it would have had it originally
signed this lease as Landlord. Any such person, whether or not named herein,
shall have no liability hereunder after ceasing to hold title to the Premises.
Neither Landlord nor any principal of Landlord nor any owner of the Building or
the Lot, whether disclosed or undisclosed, shall have any personal liability
with respect to any of the provisions of this Lease or the Premises, and if
Landlord is in breach or default with respect to Landlord's obligations under
this Lease or otherwise, Tenant shall look solely to the equity of Landlord in
the Premises for the satisfaction of Tenant's remedies.
c) "Tenant" as used herein includes the Tenant named above as
well as its heirs, successors and assigns, each of which shall be under the same
obligations, liabilities and disabilities and each of which shall have the same
rights, privileges and powers as it would have possessed had it originally
signed this Lease as Tenant. Each and every person named above as Tenant shall
be bound formally and severally by the terms, covenants and agreements contained
herein. However, no such rights, privileges or powers shall inure to the benefit
of any assignee of Tenant, immediate or remote, unless the assignment to such
assignee is permitted or has been approved in writing by Landlord. Any notice
required or permitted by the terms of this Lease may be given by or to any one
of the persons named above as Tenant, and shall have the same force and effect
as if given by or to all of them.
d) "Mortgage" and "Mortgagee" as used herein includes any lien
or encumbrance on the Premises or the Property or on any part of or interest in
or appurtenance to any of the foregoing, including without limitation any ground
rent or ground lease if Landlord's interest is or becomes a leasehold estate.
The word "mortgagee" is used herein to include the holder of any mortgage,
including any ground Landlord if Landlord's interest is or becomes a leasehold
estate. Wherever any right is given to a mortgagee, that right may be exercised
on behalf of such mortgagee by any representative or servicing agent of such
mortgagee.
31
e) "Person" as used herein includes a natural person, a
partnership, a corporation, an association, and any other form of business
association or entity.
f) "Property" as used herein shall mean the Building and the
lot, tract or parcel of land on which the Building is situated.
g) "Rent" or "rent" as used herein shall mean all Fixed Basic
Rent and Additional Rent reserved under this Lease.
43. Tenant's Right of First Refusal.
a) Subject to the rights of tenants of the Building as of the
date of this Lease, Tenant shall have a right of first refusal ("Right of
Refusal") to lease any additional space which becomes available in the Building
contiguous to the Premises during the Term ("Additional Space"). If Landlord
has Additional Space available and receives a bona fide offer (the "Offer")to
lease the Additional Space from a third party ("Offeror") which Landlord is
willing to accept, Landlord shall send written notice to Tenant, which notice
shall set forth the terms of the third party offer. Within ten (10) days after
receipt of Landlord's notice, Tenant shall reply by written notice either
accepting the Additional Space on the same terms and conditions of the third
party offer, or rejecting the same. Failure to respond within the ten (10) day
period shall constitute a rejection of the Additional Space. If Tenant accepts
the Additional Space, the Additional Space shall be added to the Premises by
amendment to this Lease, which shall include an adjustment of Tenant's
Proportionate Share and such other changes as may be appropriate. In the event
Tenant rejects the Offer, then Landlord may proceed to enter into a lease for
such Additional Space with the Offeror provided such lease is executed by the
Landlord and the Offeror within six (6) months from the date of the Offer. In
the event a new offer is tendered or received by Landlord, Landlord must again
submit such new offer to Tenant in accordance with this Section 43.
b) All of the terms and conditions of this Lease will apply to
any Offer Space leased by Tenant, except as otherwise provided in Landlord's
Notification. The term of this Lease with respect to the Offer Space shall be
coterminous with the Term of this Lease with respect to the original Premises.
Landlord will have no liability to Tenant if any tenant of the Offer Space
wrongfully holds over. In the event such tenant wrongfully holds over, Landlord
will attempt in good faith to cause such tenant to vacate the Offer Space.
44. Tenant's Use of the Roof. Tenant shall also have the right
without charge to install and use and operate satellite and/or antennae and
communications equipment necessary or reasonably desirable to Tenant
(collectively, the "Equipment"), including the right to interconnect the
Equipment with Tenant's other equipment located in the Premises, in a mutually
agreeable location on the roof of the Premises which installation may penetrate
the roof membrane provided Tenant complies with the terms of Landlord's roof
warranty, a copy of which will be delivered to Tenant upon request.
32
Tenant shall be solely responsible for the costs of installation, operation, and
maintenance of the Equipment. Tenant will install and operate the Equipment in
accordance with all federal, state and local regulations. If Tenant decides to
install a microwave satellite dish and/or antennae, Landlord hereby permits
Tenant to install wires, conduits and appurtenant facilities upon the Premises
or Common Facilities, at Tenant's sole cost and expense. In addition, Tenant
shall be responsible for obtaining any permits and licenses required to install
and operate the Equipment, and Landlord agrees to cooperate with Tenant to
accomplish the same.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
33
SECTION 26(b) HEREOF SETS FORTH A WARRANT OR AUTHORITY FOR AS
ATTORNEY TO CONFESS JUDGMENT AGAINST TENANT. IN GRANTING THIS WARRANT OF
ATTORNEY TO CONFESS JUDGMENT AGAINST TENANT, TENANT HEREBY KNOWINGLY,
INTENTIONALLY AND VOLUNTARILY, AND (ON THE ADVICE OF THE SEPARATE COUNSEL OF
TENANT, IF TENANT HAS USED COUNSEL IN REGARD TO ENTERING INTO THIS
LEASE) UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS TENANT HAS OR MAY HAVE TO PRIOR
NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE CONSTITUTIONS AND LAWS OF THE
UNITED STATES AND THE COMMONWEALTH OF PENNSYLVANIA.
IN WITNESS WHEREOF, and in consideration of the mutual entry
into this Lease and for other good and valuable consideration, and intending to
be legally bound, each party hereto has caused this agreement to be duly
executed under seal.
Landlord:
--------
Date Signed: 000 XXXXXXX XXXX
----------- ASSOCIATES, L.P.
By: 000 XXXXXXX XXXX
ASSOCIATES ACQUISITION
CORP.
By: /s/
------------------------
Name:
-------------------
Title:
------------------
Attest:
--------------------
Tenant:
------
Date Signed: 1/31/00 BROADVIEW NETWORKS, INC.
-----------
By: /s/ Xxxxx Xxxxxxx
------------------------
Name: Xxxxx Xxxxxxx
-------------------
Title: VP-ADMIN
------------------
Attest: /s/ [*ILLEGIBLE]
--------------------
[*ILLEGIBLE]
34
RIDER A
RENEWAL OPTION: Tenant is hereby granted two (2) options to renew this Lease
--------------
upon the following terms and conditions:
At the time of the exercise of each option to renew and at the time of the said
renewals, the Tenant shall not be in default in accordance with the terms and
provisions of this Lease beyond any applicable notice and surge period, and
shall be in possession of the Premises pursuant to this Lease.
Notice of the exercise of each option shall be sent to the Landlord in writing
at least six (6) months but not more than twelve (12) months before the
expiration of the term of this Lease in the case of the first renewal term, or
before the expiration of the first renewal term in the case of the second
renewal term.
Each renewal term shall be for a period of five (5) years, to commence at the
expiration of the Term of this Lease in the case of the first renewal term or
the first renewal term in the case of the second renewal term and all of the
terms and conditions of this Lease, other than the Fixed Basic Rent, shall apply
during any such renewal term.
The annual fixed basic rent to be paid during each renewal term shall not be
less than that paid for the Premises during the last year of the original term
of the Lease, or the first renewal term in the case of the second renewal term.
However, if ninety five percent (95%) of the fair rental value per square foot
at the commencement of the renewal term shall exceed the rent as established in
the preceding sentence, the Tenant shall pay ninety five percent (95%) of the
fair rental value. In determining the fair rental value, the Landlord shall
notify Tenant of the fair rental value as established by the respective parties
if Landlord and Tenant cannot reach a mutual agreement with respect to such fair
market value, Landlord and Tenant shall jointly employ the services of an
independent appraiser familiar with office buildings located within the
metropolitan Philadelphia, Pennsylvania area comparable to the Building, who
shall be a member of MAI and who shall render an appraisal. The fee of such
appraiser shall be borne equally by Landlord and Tenant. If the Landlord and the
Tenant cannot agree on the fair rental value, or in such case, on an independent
appraiser acceptable to both, either party may request the American Arbitration
Association to appoint such independent appraiser who shall be a member of MAI
familiar with office buildings in the area of the Building who shall render an
appraisal, and in such event the judgment of the appraiser shall be final and
binding upon the parties. Pending resolution of the issue of fair rental value,
the Tenant shall pay the Landlord as of commencement of the renewal term, the
Fixed Basic Rent as established by Landlord, subject to retroactive adjustment
upon final determination of this issue. Each party shall pay its own counsel
fees and expenses, if any, in connection with any arbitration under this
Article. It is expressly understood that in connection with any determination of
the fair and reasonable annual market rental value of the demised premises
pursuant to this Article, the following criteria shall be considered, among
other things, in the determination:
(A) the fact that the Expense Stop provided herein shall not change
for the purpose of calculating the Additional Rent payable pursuant to this
Lease;
(B) the fact that Tenant shall have no further right to renew this
Lease except as set forth herein;
(c) the fact that Landlord shall not be obligated to perform any work
in the Demised Premises to prepare the same for Tenant's occupancy;
(D) the fact that Tenant shall not be entitled to any free rent or
other similar credit against the Fixed Basic Rent; and
(E) whether or not Landlord is or is not obligated to pay a brokerage
commission with respect to the applicable Renewal Term.
36
EXHIBIT A
---------
LOCATION OF BUILDING
ALL THOSE TWO CERTAIN tracts or parcels of land with the buildings and
improvements thereon erected, Situate in the Township of Horsham, County of
Xxxxxxxxxx and Commonwealth of Pennsylvania, bounded and described according to
subdivision plan of Forge Industrial Tract, made by, Xxxxxxx & Xxxxx, Inc.,
dated 11/6/1983 as follows, to wit:
THE FIRST THEREOF:
BEGINNING at the point of intersection of the centerlines of Horsham Road, Rte.
463 and Norristown Road, as shown on said plan; thence from said point of
beginning extending along the said centerline of Horsham Road North 47 degrees
06 minutes West, 653.53 feet to a point, a corner; in the same; thence extending
North 42 degrees 54 minutes East, crossing the Northeasterly side of said
Horsham Road and along Parcel A-l on said Plan, 497.00 feet to a point, a corner
thence continuing along said Parcel A-l, South 47 degrees 06 minutes East 165.00
feet to a point, an angle; thence continuing along the same and along Parcel B-3
North 68 degrees 25 minutes East, 532.43 feet to a point, a corner in line of
Parcel X-x on said plan; thence extending along the same and Parcel B-2 and
crossing a 60 feet wide easement for ingress, egress, regress for Parcels A-l
and X-0, Xxxxx 00 degrees 35 minutes East, 596.16 feet to a point, an angle;
thence continuing along said Parcel B-2, South 47 degrees 06 minutes East,
94.64 feet to a point in line of lands of Willow Grove Construction Co.; thence
extending along the same South 42 degrees 29 minutes West, 342.50 feet to a
point in the centerline of Norristown Road, aforesaid; thence extending along
the same North 89 degrees 35 minutes West 510.12 feet to the first mentioned
point and place of beginning.
BEING PARCELS A-2 and B-4 on said plan, Containing 15.5 acres clear of
right-of-way.
BEING Parcel Numbers 36-00-04015-00-8 and 36-00-05334-12-9.
AS TO PART BEING the same premises which Xxxxxxx, Incorporated (Pa. Corp.)by
Deed dated 10/14/1981 and recorded in Xxxxxxxxxx County in Deed Book 4663 page
800 conveyed unto Xxxxxxxxxx County Industrial Development Authority, in fee.
AS TO TEE REMAINING PART BEING the same premises which Xxxxxxx, Incorporated
(Pa. Corp.) by Deed dated 12/21/1983 and recorded in Xxxxxxxxxx County in Deed
Book 4728 page 816 conveyed unto Xxxxxxxxxx Industrial Development Authority, in
fee.
EXHIBIT A-l
-----------
DEMISED PREMISES
000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx
[GRAPHIC OF FLOOR PLAN]
EXHIBIT A-1 - APPROX - 10,000 RSF
CROSS HATCHED
EXHIBIT B
---------
RULES AND REGULATIONS
1. OBSTRUCTION OF PASSAGEWAYS: The sidewalks, entrance, passages, courts,
--------------------------
elevators, vestibules, stairways, corridors and public parts of the Building
shall not be obstructed or encumbered by Tenant or used by Tenant for any
purpose other than ingress and egress. If the Premises are situated on the
ground floor with direct access to the street, then Landlord shall, at
Landlord's expense, keep the sidewalks and curbs directly in front of the
Premises clean and free from ice, snow and refuse.
2. WINDOWS: Windows in the Premises shall not be covered or obstructed by
-------
Tenant. No bottles, parcels or other articles shall be placed on the window
xxxxx, in the halls, or in any other part of the Building other than the
Premises. No article shall be thrown out of the doors or windows of the
Premises.
3. PROJECTIONS FROM BUILDING: No awnings, air-conditioning units, or other
-------------------------
fixtures shall be attached to the outside walls or the window xxxxx of the
Building or otherwise affixed so as to project from the Building, without prior
written consent of Landlord.
4. SIGNS: No sign or lettering shall be affixed by Tenant to any part of the
-----
outside of the Premises, or any part of the inside of the Premises so as to be
clearly visible from the outside of the Premises, without the prior written
consent of Landlord. However, Tenant shall have the right to place its name on
any door leading into the Premises the size, color and style thereof to be
subject to the Landlord's approval. Tenant shall not have the right to have
additional names placed on the Building directory without Landlord's prior
written consent.
5. FLOOR COVERING: Tenant shall not lay linoleum or other similar floor covering
--------------
so that the same shall come in direct contact with the floor of the Premises. If
linoleum or other similar floor covering is desired to be used, an interlining
of builder's deadening felt shall first be fixed to the floor by a paste or
other material that may easily be removed with water, the use of cement or other
similar adhesive material being expressly prohibited.
6. INTERFERENCE WITH OCCUPANTS OF BUILDING: Tenant shall not make, or permit to
---------------------------------------
be made, any unseemly or disturbing noises or odors and shall not interfere with
other tenants or those having business with them. Tenant will keep all
mechanical apparatus in the Premises free of vibration and noise which may be
transmitted beyond the limits of the Premises.
7. LOCK KEYS: No additional locks or bolts of any kind shall be placed on any of
---------
the doors or windows by Tenant. Tenant shall, on the termination of Tenant's
tenancy, deliver to Landlord all keys to any space within the Building either
furnished to or otherwise procured by Tenant, and in the event of the loss of
any keys furnished, Tenant shall pay to
Landlord the cost thereof. Tenant, before closing and leaving the Premises,
shall ensure that all windows are closed and entrance doors locked. Nothing in
this Paragraph 7 shall be deemed to prohibit Tenant from installing a burglar
alarm within the Premises, provided: (1) Tenant obtains Landlord's consent which
will not be unreasonably delayed; withheld or
8. CONTRACTORS: No contract of any kind with any supplier of towels, water,
-----------
toilet articles, waxing, rug shampooing, venetian blind washing, furniture
polishing, lamp servicing, cleaning of electrical fixtures, removal of waste
paper, rubbish, garbage, or other like service shall be entered into by Tenant,
nor shall any machine of any kind be installed in the Building or the Office
Building Area without the prior written consent of the Landlord. Tenant shall
not employ any persons other than Landlord's janitors for the purpose of
cleaning the Premises without prior written consent of Landlord. Landlord shall
not be responsible to Tenant for any loss of property from the Premises however
occurring, or for any damage to the effects of Tenant by such janitors or any of
its employees, or by any other person or any other cause.
9. PROHIBITED ON PREMISES: Tenant shall not conduct, or permit any other person
----------------------
to conduct, any auction upon the Premises, manufacture or store goods, wares or
merchandise upon the Premises without the prior written approval of Landlord,
except the storage of usual supplies and inventory to be used by Tenant in the
conduct of its business, permit the Premises to be used for gambling, make any
unusual noises in the Building, permit to be played musical instrument on the
Premises, permit any radio to be played, or television, recorded or wired music
in such loud manner as to disturb or annoy other tenants, or permit any unusual
odors to be produced on the Premises. Tenant shall not permit any portion of the
Premises to be occupied as an office for a public stenographer or typewriter, or
for the storage, manufacture, or sale of intoxicating beverages, narcotics,
tobacco in any form or as a xxxxxx or manicure shop. Canvassing, soliciting and
peddling in the Building and the Office Building Area are prohibited and Tenant
shall cooperate to prevent the same. No bicycles, vehicles or animals of any
kind shall be brought into or kept in or about the Premises.
10. PLUMBING, ELECTRIC AND TELEPHONE WORK: Plumbing facilities shall not be used
-------------------------------------
for any purpose other than those for which they were constructed; and no
sweepings, rubbish, ashes, newspaper or other substances of any kind shall be
thrown into them. Waste and excessive or unusual amounts of electricity or water
is prohibited. When electric wiring of any kind is introduced, it must be
connected as directed by Landlord, and no stringing or cutting of wires will be
allowed, except by prior written consent of Landlord, and shall be done by
contractors approved by Landlord. The number and locations of telephones,
telegraph instruments, electrical appliances, call boxes, etc. shall be subject
to Landlord's approval.
11. MOVEMENT OF FURNITURE, FREIGHT OR BULKY MATTER: The carrying in or out of
----------------------------------------------
freight, furniture or bulky matter of any description must take place
2
during such hours as Landlord may from time to time reasonably determine and
only after advance notice to the superintendent of the Building. The persons
employed by Tenant for such work must be reasonably acceptable to the Landlord.
Tenant may, subject to these provisions, move freight, furniture, bulky matter,
and other material into or out of the Premises on Saturdays between the hours of
9: 00 a. m. and 1: OO p. m., provided Tenant pays additional costs, if any,
incurred by Landlord for elevator operators or security guards, and for any
other expenses occasioned by such activity of Tenant. If, at least three (3)days
prior to such activity, Landlord requests that Tenant deposit with Landlord, as
security of Tenant's obligations to pay such additional costs, a sum of which
Landlord reasonably estimates to be the amount of such additional cost, the
Tenant shall deposit such sum with Landlord as security of such cost. There
shall not be used in the Building or Premises, either by Tenant or by others in
the delivery or receipt of merchandise, any hand trucks except those equipped
with rubber tires and side guards, and no hand trucks will be allowed in the
elevators without the consent of the superintendent of the Building.
12. SAFES AND OTHER HEAVY EQUIPMENT: Landlord reserves the right to prescribe
-------------------------------
the weight and position of all safes and other heavy equipment so as to
distribute properly the weight thereof and to prevent any unsafe condition from
arising.
13. ADVERTISING: Landlord shall have the right to prohibit any advertising by
-----------
Tenant which in Landlord's reasonable opinion tends to impair the reputation of
the Building or its desirability as a building for offices, and upon written
notice from Landlord, Tenant shall refrain from or discontinue such advertising.
14. NON-OBSERVANCE OR VIOLATION OF RULES BY OTHER TENANTS: Landlord shall not be
-----------------------------------------------------
responsible to Tenant for non-observance or violation of any of these rules and
regulations by any other tenant.
15. AFTER HOURS USE: Landlord reserves the right to exclude from the Building
---------------
between the hours of 6: 00 p. m. and 8: 00 a. m. and at all hours on Saturdays,
Sundays and Building Holidays, all persons who do not present a pass to the
Building signed by the Tenant. Each Tenant shall be responsible for all persons
for whom such a pass is issued and shall be liable to the Landlord for the acts
of such persons.
16. PARKING: Tenant and its employees shall park their cars only in those
-------
portions of the parking area designated by Landlord.
17. RESERVATION OF RIGHTS: Landlord hereby reserves to itself any and all rights
---------------------
not granted to Tenant hereunder, including, but not limited to, the following
rights which are reserved to Landlord for its purposes in operating the
Building:
a. the exclusive right to the use of the name of the Building
for all purposes, except that Tenant may use the name as its business address
and for no other purposes; and
b. the right to change the name or address of the Building,
without incurring any liability to Tenant for doing so; and
3
c. the right to install and maintain a sign on the exterior of
the Building; and
d. the exclusive right to use or dispose of the use of the roof
of the Building; and
e. the right to limit the space on the directory of the
Building to be allotted to Tenant; and
f. the right to grant to anyone the right to conduct any
particular business or undertaking in the Building.
18. HEALTH AND SAFETY: The Tenant shall be responsible for initiating,
maintaining and supervising all health and safety precautions and/or programs
required by Law in connection with the Tenant's use and occupancy of the
Premises.
19. HAZARDOUS MATERIALS: The Tenant shall not store, introduce or otherwise
permit any material known to be hazardous within the Premises. Any material
within the Premises which is determined to be hazardous shall be removed and
properly disposed of by the Tenant at the Tenant's sole expense.
-- END --
4
EXHIBIT C
Landlord's Work
---------------
Landlord at Landlord's expense shall:
. Deliver the Premises demised and secure in broom clean condition and ready
for tenant construction.
. Remove HVAC vents and replace and waterproof .sections of roof, if necessary
. Provide/Certify a minimum of 125 lbs. per square foot floor loading to the
demised
. Comply with ADA and local building life safety codes throughout the Lease
term
. Provide main sprinkler loop to the premises. Tenant, at Tenant's expense,
will provide a pre-action valve system.
. Scrape, patch and level the floor (if necessary)
. Provide tie-ins to Building life and fire safety system(s)
. Provide 1200 amp service to Tenant Premises.
. Provide any electrical and utility metering equipment
. Provide right for either an interior or exterior pad space (10 X 10)for
tenant's gas emergency generator and day tank and access to same from
designated platform.
. Provide access way for an electrical conduit from generator to Tenant's ATS
switch located at the Tenants service breaker as designated by the Landlord.
. Provide the right and access to install horizontal & vertical conduit for
fiber optics, subject to Landlord's approval, which shall not be unreasonably
withheld.
. Black pipe gas lines running through Premises to be removed, and if needed,
rerouted.
EXHIBIT D
---------
BUILDING HOLIDAYS
BUILDING CLOSED ON:
*NEW YEAR'S DAY*
*MEMORIAL DAY*
*INDEPENDENCE DAY*
*LABOR DAY*
*THANKSGIVING DAY*
*CHRISTMAS DAY*
EXHIBIT E
TENANT ESTOPPEL CERTIFICATE
TO: ___________________________("___________") pursuant to that certain________
Agreement (the "Agreement") dated ___________, 199_, by and between _________and
________________________________ (" Lessor").
1. The undersigned (" Lessee") is the lessee under that certain Lease dated
_________, 19_, by and between __________________________________________, as
lessor, and _______________________________________, as lessee (the "Lease"),
covering a portion of those certain premises commonly known and designated as
_______________________________________________, Pennsylvania, consisting of
approximately _______________ square feet (the "Premises"). A true, complete
and correct copy of the Lease is attached hereto as Exhibit "A".
2. The Lease has not been modified, changed, altered or amended in any
respect (except as indicated following this sentence) and is the only lease or
agreement between the undersigned and the Lessor affecting the Premises. If
none, state "none".
_______________________________________________________________________________
_______________________________________________________________________________
3. The undersigned has made no agreements with Lessor or its agents or
employees, which are not described in the Lease concerning free rent, partial
rent, rebate of rental payments or any other type of rental concession with
respect to the Lease (except as indicated following this sentence). If none,
state "none".
_______________________________________________________________________________
_______________________________________________________________________________
4. The undersigned accepted possession of the Premises on _________,19__,
currently occupies the Premises and has been open for business since _________,
19__. The current term of the Lease began on _________,19__. The current term
of the Lease will expire on _________, 19__, and Lessee has no present right to
cancel or terminate the Lease under the terms thereof, or otherwise. No rent
payable pursuant to the Lease has been prepaid for more than two (2) months, and
no monies otherwise payable to Lessor under the Lease have been paid in advance
of the due date therefor as set forth in the Lease. The fixed minimum rent
currently being paid under the Lease is $__________ per month. Future changes
to the fixed minimum rental are as set forth in the Lease. The undersigned also
pays amounts for percentage rent, insurance and property tax escalations based
upon the square footage of the Premises subject to the Lease, as set forth in
the Lease, which amounts have been paid to and including _______________,
199__.
5. The Lease is fully valid and enforceable and is currently in full force
and effect. Neither Lessor or Lessee is in default thereunder, and all
conditions and obligations on the part of Lessor to be fulfilled under the terms
of the Lease have been
satisfied or fully performed including, without limitation, all required tenant
improvements, allowances, alterations, installations and construction, and
payment therefor has been made in full. Lessee has no offset, claim, defense or
counterclaim against any rent or other sum payable by Lessee under the Lease or
against any other obligation of Lessee under the Lease. No condition exists
which with the giving of notice or the passage of time, or both, would
constitute a default under the Lease.
6. Lessee has not suffered any assignment of the Lease or sublet the
Premises or any portion thereof, and no person or entity, other than Lessee, has
any possessory interest in the Premises or right to occupy the Premises or any
portion thereof, except as permitted under the Lease.
7. Lessee claims no right, title or interest in or to the Premises or right
to possession of the Premises, except as lessee under the terms of the Lease.
The Lease does not contain and the undersigned does not have any outstanding
options or rights of first refusal to purchase the Premises or any portion
thereof or the real property of which the Premises are a part, except as
otherwise set forth below. If none, state "none".
_______________________________________________________________________________
_______________________________________________________________________________
8. No actions, whether voluntary or otherwise, are pending against the
undersigned under the bankruptcy laws of the United States or any state thereof,
and Lessee knows of no fact or pending or threatened claim or litigation that
might result in the insolvency or bankruptcy of Lessee.
9. Lessee is a [corporation][limited partnership][general partnership]duly
organized and validly existing and in good standing under the laws of the State
of _____________ [and qualified to do business in the State where the Premises
is located]. [________, a ________, owns and holds all of the issued and
outstanding stock in and of Lessee, and is a separate and distinct entity from
Lessee].
10. Lessee's occupancy of the Premises complies fully with all local, state
and federal laws, ordinances, codes, rules, regulations and orders including,
without limitation, those concerning hazardous wastes, hazardous materials,
asbestos, oil and underground storage tanks. In addition, no such hazardous
wastes, hazardous materials, asbestos, oil or underground storage tanks have
been or are incorporated in, stored on or under, released from, treated on,
transported to or from or disposed of, on or from the Premises or any portion
thereof.
11. All inspections, licenses, permits, consents, permissions, approvals
and certificates required, whether by law, regulation or insurance standards, to
be made or issued with respect to the conduct of Lessee's business, the Premises
and the use and occupancy of the Premises by Lessee have been made by or issued
by all necessary private parties, the appropriate governmental or
quasi-governmental authorities or other authorities having jurisdiction over the
Premises and/or Lessee's business, are in full force and effect, and Lessee has
not received notification from any such authority that
2
Lessee or the Premises is in material noncompliance with such laws, regulations
or standards, that the Premises is being used, operated or occupied unlawfully
or that Lessee has failed to obtain such inspections, permits, consents,
permissions, approvals, licenses or certificates, as the case may be. Lessee has
not received notice of any violation or failure to conform with any such law,
ordinance, regulation, standard, license, permit, consent, permission, approval
or certificate.
12. All insurance' policies required to be maintained by Lessee under the
Lease have been maintained, are in full force and effect and all premiums with
respect thereto have been paid in full.
13. Upon receipt of notice of the closing of the purchase and sale of the
Premises as set forth in the Agreement, Lessee shall _____ recognize as lessor
under the Lease, and all payments of rent and other sums due to Lessor under the
Lease and all communications permitted or required under the Lease shall be
directed to _____ c/o_______________________________________, and all
communications permitted or required under the Lease shall be directed to Lessee
at the address for Lessee set forth in the Lease (except as otherwise indicated
following this sentence), unless and until otherwise specified in written notice
by the party to whom notice is to be given at such address. If none, state
"none".
14. This certification is made to induce __________ [to enter into the
Agreement][to provide financing to Lessor]knowing that ____________ is relying
upon the truth of this Tenant Estoppel Certificate in [entering into the
Agreement,]providing such financing]and that [the acquisition of the Premises by
____________ pursuant to the Agreement][the financing provided to Lessor]shall
be deemed good and valuable consideration to Lessee for the foregoing
representations made by Lessee.
Dated this _____ day of __________, 199_.
LESSEE:
_________________________________,
a________________________________
BY:______________________________
Name:_________________________
Title:________________________
3
EXHIBIT F
CLEANING SPECIFICATIONS
LOBBY AND ENTRANCE AREAS
------------------------
Daily Cleaning Services
----------------------
1. Dust and damp mop all lobby and entrance foyers to insure dust
free floors with specific attention to hard-to-reach areas.
2. All ashtrays will be emptied, washed and dried.
3. All waste and trash cans will be empties. All waste and trash
cans will be washed as needed.
4. All telephones will be sanitized.
5. Vacuum all carpeted areas.
6. Dust and wipe clean all desks and chairs.
7. Wipe, clean and polish all stainless steel and other metal work.
8. Clean all entrance doors.
9. All floors to be swept with chemically treated cloths, spot
mopped and spray buffed.
10. Dust and/or wash clean all directory boards and display glass.
11. All lights will be turned off, and specified doors locked at the
completion of cleaning.
Weekly Cleaning Services
-----------------------
1. Dust and clean all paneling, door trim and other architectural
louvres, ornamental work, grills, picture frames, thermostats,
boards, entire doors and woodwork.
2. Vacuum all upholstered furniture and wall surfaces.
3. Complete high dusting of pictures, frames, etc.
4. Spot clean all carpeted areas.
5. Spot clean wall surfaces.
Quarterly Cleaning Service
--------------------------
1. Scrub and refinish floor areas.
Yearly Cleaning Services
------------------------
1. Strip and refinish all floor areas.
GENERAL OFFICE AREAS
--------------------
Daily Cleaning Services
-----------------------
1. All ashtrays will be empties, washed and dried.
2. All waste and trash cans will be emptied. All waste and trash
cans will be washed as needed.
3. All telephones will be cleaned and sanitized.
4. All water fountains to be sanitized and polished.
5. Dust desk tops.
6. Spot clean all wall surfaces and columns.
7. Vacuum all carpeted areas; moving light furniture other than
desks, file cabinets, etc.
8. Dust and spot mop all resilient tile floor areas. All floor edges
will be damp mopped.
9. All glass partitions will be spot cleaned.
Weekly Cleaning Services
------------------------
1. Dust and clean all paneling, door time, ornamental work, grills,
picture frames, ventilating louvres, baseboards and entire doors.
2. Dust and wipe clean all furniture, fixtures, shelving, cabinets,
window xxxxx, picture frames, bases of all chairs and desk tops
with clean cloths.
3. Wipe clean metal door knobs, light switch plates, mirrors, kick
plates, door saddles and directional signs.
Monthly Cleaning Services
-------------------------
1. Complete all high dusting.
2. Dust and wipe clean all diffusers and ventilators.
3. Damp mop and spray buff all resilient floor areas.
Bi-Yearly Cleaning Services
---------------------------
1. Dust blinds.
Yearly Cleaning Services
------------------------
1. Strip and refinish all resilient tile floor areas.
RESTROOMS
---------
Daily Cleaning Services
-----------------------
1. All toilets and urinals will be sanitized and wiped clean.
2. All sinks and fixtures will be cleaned with a non-abrasive
cleaner, sanitized and polished.
3. All paper towel and toilet tissue dispensers will be wiped clean.
4. All waste baskets and sanitary disposal units will be emptied.
5. Clean all mirrors with glass cleaner and chrome with chrome
cleaner.
6. All hand soap dispensers will be refilled.
7. All restroom floors will be damp mopped nightly using
disinfectant.
Weekly Cleaning Services
------------------------
1. All partitions, tiled walls and vertical surfaces will be wiped
clean.
Monthly Cleaning Services
-------------------------
1. All walls, vertical and horizontal surfaces will be wiped clean
and sanitized.3
3
Quarterly Cleaning Services
---------------------------
1. All restroom floors will be machine scrubbed.
CORRIDORS AND COMMON AREAS
--------------------------
Daily Cleaning Services
-----------------------
1. All ashtrays will be empties, washed and dried.
2. All drinking fountains will be sanitized and polished.
3. All waste trash cans will be emptied.
4. Wipe clean all metal door knobs, light switch plats, kick plates,
mirrors, door saddles and directional signs.
5. Sweep with chemically treated mops; damp mop to remove spill off.
Weekly Cleaning Services
------------------------
1. Spray buff all resilient tile floor areas.
2. All fire extinguishers will be dusted.
3. Spot clean all wall surfaces and columns; including stainless
steel work.
4. Dust and wipe clean all furniture, fixtures, shelving, cabinets,
window xxxxx and picture frames with clean clothes.
Monthly Cleaning Services
-------------------------
1. Complete all high dusting.
2. Dust and wipe clean all paneling, door trim, ornamental work,
grills, picture frames, ventilating louvres, baseboards and
entire doors.
Quarterly Cleaning Services
---------------------------
1. Scrub and refinish all resilient tile floor areas.
2. Dust and wipe clean all air diffusers and ventilators.
Yearly Cleaning Services
------------------------
4
1. Strip and refinish all resilient tile floor areas.
ELEVATORS
---------
Daily Cleaning Services
-----------------------
1. All elevators will be cleaned maintaining all metal work
throughout.
2. All resilient tile floor areas will be swept with a chemically
treated dust mop and spot mopped.
Weekly Cleaning Services
------------------------
1. All resilient tile floors will be mopped and spray buffed.
2. All walls will be wiped clean.
3. Vacuum elevator door tracks and saddles.
STAIRWELLS AND MISCELLANEOUS
----------------------------
Weekly Cleaning Services
------------------------
1. All stairs will be swept and mopped.
2. All metal and framework will be dusted and wiped clean.
3. All janitorial closets will be kept clean and orderly.
5
