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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q/A
[X] QUARTERLY REPORT UNDER SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE ACT
OF 1934
For the Quarter Ended March 31, 2000
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ____________ to ______________
Commission File number 000-26287
RAVISENT Technologies Inc.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 23-2763854
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(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
One Great Valley Parkway
Malvern, Pennsylvania 19355
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(Address of Principal Executive Offices)
Registrant's Telephone Number, Including Area Code: (800) 700-0362
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes No X
- -------------------------------------------------------
On May 5, 2000, 16,191,022 shares of the Registrant's Common Stock, $.001 par
value, were outstanding.
Purpose of Amendment:
RAVISENT Technologies Inc. files this Amendment No. 1 to the Quarterly Report,
Form 10-Q, in order to include the Exhibit 10.31, Commercial Lease, omitted
inadvertently in the original filing of the Quarterly Report, Form 10-Q on May
15, 2000.
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
May 16, 2000 RAVISENT TECHNOLOGIES INC.
/s/ Jason C. Liu
--------------------------
Jason C. Liu
Chief Financial Officer
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AGREEMENT OF LEASE
between
ROUSE & ASSOCIATES-205 GREAT VALLEY PARKWAY
("LANDLORD")
and
RAVISENT TECHNOLOGIES
("TENANT")
for
205 Great Valley Parkway
Malvern, Pennsylvania 19355
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Lease Agreement
(Multi-Tenant Industrial)
INDEX
- -----
SECTION PAGE
------- ----
1. Summary of Terms and Certain Definitions................................. 1
2. Premises ................................................................ 2
3. Acceptance of Premises .................................................. 2
4. Use; Compliance.......................................................... 2
5. Term..................................................................... 2
6. Minimum Annual Rent...................................................... 3
7. Operation of Property; Payment of Expenses............................... 3
8. Signs.................................................................... 4
9. Alterations and Fixtures ................................................ 5
10. Mechanics' Liens ........................................................ 5
11. Landlord's Right of Entry ............................................... 5
12. Damage by Fire or Other Casualty ........................................ 5
13. Condemnation ............................................................ 6
14. Non-Abatement of Rent ................................................... 6
15. Indemnification of Landlord ............................................. 6
16. Waiver of Claims ........................................................ 6
17. Quiet Enjoyment ......................................................... 6
18. Assignment and Subletting ............................................... 6
19. Subordination; Mortgagee's Rights ....................................... 7
20. Recording; Tenant's Certificate ......................................... 7
21. Surrender; Abandoned Property ........................................... 8
22. Curing Tenant's Defaults ................................................ 8
23. Defaults - Remedies ..................................................... 8
24. Representations of Tenant ............................................... 9
25. Liability of Landlord.................................................... 9
26. Interpretation; Definitions .............................................10
27. Notices..................................................................10
28. Security Deposit.........................................................11
29. PA Additional Remedies...................................................R-1
30. Tenant Improvements......................................................R-2
31. Amendment to Article 3 Entitled "Acceptance of Premises".................R-3
32. Amendment to Article 4 Entitled "Use; Compliance"........................R-3
33. Amendment to Article 7 Entitled "Operation of Property;
Payment of Expenses......................................................R-4
34. Amendment to Article 8 Entitled "Signs"..................................R-6
35. Amendment to Article 9 Entitled "Alterations and Fixtures"...............R-6
36. Amendment to Article 10 Entitled "Mechanics Liens".......................R-7
37. Amendment to Article 12 Entitled "Damage by Fire or Other Casualty"......R-7
38. Amendment to Article 13 Entitled "Condemnation"..........................R-7
39. Amendment to Article 15 Entitled "Indemnification of Landlord"...........R-7
40. Amendment to Article 18 Entitled "Assignment and Subletting".............R-7
41. Amendment to Article 9 Entitled "Subordination; Mortgagee's Rights"......R-8
42. Amendment to Article 20 Entitled "Tenant Certificate"....................R-8
43. Amendment to Article 23 Entitled "Defaults - Remedies"...................R-8
44. Amendment to Article 23 (f)..............................................R-8
45. Amendment to Article 25 Entitled "Liability of Landlord".................R-8
46. Landlord's Indemnification of Tenant.....................................R-9
47. Reimbursement Allowance..................................................R-9
48. Right of First Offer.....................................................R-9
49. Landlord's Default......................................................R-10
<PAGE>
THIS LEASE AGREEMENT is made by and between ROUSE & ASSOCIATES - 205
GREAT VALLEY PARKWAY, a Pennsylvania limited partnership ("LANDLORD") with its
address at 65 Valley Stream Parkway, Suite 100, Malvern, Pennsylvania 19355 and
RAVISENT TECHNOLOGIES a corporation organized under the laws of Pennsylvania
("TENANT") with its address at 205 Great Valley Parkway, Malvern, Pennsylvania
19355, and is dated as of the date on which this lease has been fully executed
by Landlord and Tenant.
1. SUMMARY OF TERMS AND CERTAIN DEFINITIONS.
----------------------------------------
(a) "PREMISES": Rentable square feet: 47,027
(Section 2) Suite: 205
(b) "BUILDING": Rentable square feet: 184,500
(ss.2) Address: 205 Great Valley Parkway
Malvern, PA 19355
(c) "TERM": Eighty-four (84) months.
(ss.5)
(i) "COMMENCEMENT DATE": The earlier of substantial completion
of Tenant improvements or June 1, 2000
(ii) "EXPIRATION DATE": See Section 5
(d) Minimum Rent (ss.6) & Operating Expenses (ss.7)
(i) "MINIMUM ANNUAL RENT"
Year Annual Monthly
- ----- ------ -------
1 658,378.00 54,864.83
2 678,129.34 56,510.78
3 698,350.95 58,195.91
4 719,513.10 59,959.43
5 741,145.52 61,762.13
6 763,248.21 63,604.02
7 786,291.44 65,524.29
(ii) Estimated "ANNUAL OPERATING EXPENSES: $362,578.17 (Three
Hundred Sixty Two Thousand Five Hundred Seventy Eight and
17/100 Dollars) Payable in a monthly installment of $30,214.85
(Thirty Thousand Two Hundred Fourteen and 85/100 Dollars),
subject to adjustment (ss. 7(a)). The operating expenses
include budgeted electric, trash removal, janitorial and
maintenance and repairs.
(e) "PROPORTIONATE SHARE" 25.49%
(ss.7(a)):
(f) "USE" (ss.4): General office purposes
(g) "SECURITY DEPOSIT" (ss.28): None required. Tenant currently has
$11,800.00 on account with Landlord,
which will be transferred from 1 Great
Valley Parkway.
(h) CONTENTS: This lease consists of the Index, pages 1 through 11
containing Sections 1 through 28 and the following, all of
which are attached hereto and made a part of this lease:
Rider with Section 29-49.
Exhibits: "A" - Plan showing Premises "C" - Building
Rules
"B" - Commencement Certificate "D" - Estoppel
Form Certificate
Form
"E" - Cleaning Schedule
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2. PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from
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Landlord the Premises as shown on attached Exhibit "A" within the Building (the
Building and the lot on which it is located, the "PROPERTY"), together with the
non-exclusive right with Landlord and other occupants of the Building to use all
areas and facilities provided by Landlord for the use of all tenants in the
Property including any driveways, sidewalks and parking, loading and landscaped
areas (the "COMMON AREAS ").
3. ACCEPTANCE OF PREMISES. Tenant has examined and knows the condition of the
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Property, the zoning, streets, sidewalks, parking areas, curbs and access ways
adjoining it, visible easements, any surface conditions and the present uses,
and Tenant accepts them in the condition in which they now are, without relying
on any representation, covenant or warranty by Landlord. Tenant and its agents
shall have the right, at Tenant's own risk, expense and responsibility, at all
reasonable times prior to the Commencement Date, to enter the Premises for the
purpose of taking measurements and installing its furnishings and equipment;
provided that the Premises are vacant and Tenant obtains Landlord's prior
written consent.
4. USE; COMPLIANCE.
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(a) Permitted Use. Tenant shall occupy and use the Premises for and only
for the Use specified in Section 1(f) above and in such a manner as is lawful,
reputable and will not create any nuisance or otherwise interfere with any other
tenant's normal operations or the management of the Building. Without limiting
the foregoing, such Use shall exclude any use that would cause the Premises or
the Property to be deemed a "place of public accommodation" under the Americans
with Disabilities Act (the "ADA") as further described in the Building Rules
(defined below). All Common Areas shall be subject to Landlord's exclusive
control and management at all times. Tenant shall not use or permit the use of
any portion of the Property for outdoor storage or installations outside of the
Premises nor for any use that would interfere with any other person's use of any
portion of the Property outside of the Premises.
(b) Compliance. Landlord represents that, as of the date of this lease,
there is no action required with respect to the Premises or Common Areas under
any laws (including Title III of the ADA), ordinances, notices, orders, rules,
regulations and requirements applicable to the Premises or to the Common Areas.
From and after the Commencement Date, Tenant shall comply promptly, at its sole
expense, (including making any alterations or improvements) with all laws
(including the ADA), ordinances, notices, orders, rules, regulations and
requirements regulating the Property during the Term which impose any duty upon
Landlord or Tenant with respect to Tenant's use, occupancy or alteration of, or
Tenant's installations in or upon, the Property including the Premises, (as the
same may be amended, the "LAWS AND REQUIREMENTS") and the building rules
attached as Exhibit "C", as amended by Landlord from time to time (the "BUILDING
RULES"). Provided, however, that Tenant shall not be required to comply with the
Laws and Requirements with respect to the footings, foundations, structural
steel columns and girders forming a part of the Property unless the need for
such compliance arises out of Tenant's use, occupancy or alteration of the
Property, or by any act or omission of Tenant or any employees, agents,
contractors, licensees or invitees ("AGENTS") of Tenant. With respect to
Tenant's obligations as to the Property, other than the Premises, at Landlord's
option and at Tenant's expense, Landlord may comply with any repair, replacement
or other construction requirements of the Laws and Requirements and Tenant shall
pay to Landlord all costs thereof as additional rent.
(c) Environmental. Tenant shall comply, at its sole expense, with all Laws
and Requirements as set forth above, all manufacturers' instructions and all
requirements of insurers relating to the treatment, production, storage,
handling, transfer, processing, transporting, use, disposal and release of
hazardous substances, hazardous mixtures, chemicals, pollutants, petroleum
products, toxic or radioactive matter (the "RESTRICTED ACTIVITIES"). Tenant
shall deliver to Landlord copies of all Material Safety Data Sheets or other
written information prepared by manufacturers, importers or suppliers of any
chemical and all notices, filings, permits and any other written communications
from or to Tenant and any entity regulating any Restricted Activities.
(d) Notice. If at any time during or after the Term, Tenant becomes aware
of any inquiry, investigation or proceeding regarding the Restricted Activities
or becomes aware of any claims, actions or investigations regarding the ADA,
Tenant shall give Landlord written notice, within 5 days after first learning
thereof, providing all available information and copies of any notices.
5. TERM. The Term of this lease shall commence on the Commencement Date and
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shall end at 11:59 p.m. on the last day of the Term (the "EXPIRATION DATE"),
without the necessity for notice from either party, unless sooner terminated in
accordance with the terms hereof. At Landlord's request, Tenant shall confirm
the Commencement Date and Expiration Date by executing a lease commencement
certificate in the form attached as Exhibit "E".
6. MINIMUM ANNUAL RENT. Tenant agrees to pay to Landlord the Minimum Annual Rent
-------------------
in equal monthly installments in the amount set forth in Section 1(d) (as
increased at the beginning of each lease year as set forth in Section 1(d)), in
advance, on the first day of each calendar month during the Term, without
notice, demand or setoff at Landlord's address designated at the beginning of
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this lease unless Landlord designates otherwise; provided that rent for the
first full month shall be paid at the signing of this lease. If the Commencement
Date falls on a day other than the first day of a calendar month, the rent shall
be apportioned pro rata on a per diem basis for the period from the Commencement
Date until the first day of the following calendar month and shall be paid on or
before the Commencement Date. As used in this lease, the term "lease year" means
the period from the Commencement Date through the succeeding 12 full calendar
months (including for the first lease year any partial month from the
Commencement Date until the first day of the first full calendar month) and each
successive 12 month period thereafter during the Term.
7. Operation of Property; Payment of Expenses.
------------------------------------------
(a) Payment of Operating Expenses. Tenant shall pay to Landlord the Annual
Operating Expenses in equal monthly installments in the amount set forth in
Section 1(d) (prorated for any partial month), from the Commencement Date and
continuing throughout the Term on the first day of each calendar month during
the Term, as additional rent, without notice, demand or setoff, provided that
the monthly installment for the first full month shall be paid at the signing of
this lease. Landlord shall apply such payments to the operating expenses owed to
Landlord by Tenant pursuant to the following Sections 7(b)-(f). The amount of
the Annual Operating Expenses set forth in Section 1(d) represents Tenant's
Proportionate Share of the estimated operating expenses during the first
calendar year of the Term on an annualized basis; from time to time Landlord may
adjust such estimated amount if the estimated operating expenses increase. By
April 30th of each year (and as soon as practical after the expiration or
termination of this lease or at any time in the event of a sale of the
Property), Landlord shall provide Tenant with a statement of the actual amount
of such expenses for the preceding calendar year or part thereof. Landlord or
Tenant shall pay to the other the amount of any deficiency or overpayment then
due from one to the other or, at Landlord's option, Landlord may credit Tenant's
account for any overpayment. Tenant's obligation to pay the Annual Operating
Expenses pursuant to this Section 7 shall survive the expiration or termination
of this lease.
(b) Taxes and Other Impositions. Tenant shall pay prior to delinquency all
levies, taxes (including sales taxes and gross receipt taxes), assessments,
liens, license and permit fees, which are applicable to the Term, and which are
imposed by any authority or under any law, ordinance or regulation thereof, or
pursuant to any recorded covenants or agreements, and the reasonable cost of
contesting any of the foregoing (the "IMPOSITIONS") upon or with respect to the
Premises, or any improvements thereto, or directly upon this lease or the Rent
(defined in Section 7(f)) or amounts payable by any subtenants or other
occupants of the Premises, or against Landlord because of Landlord's estate or
interest herein. Additionally, Tenant shall pay as aforesaid its Proportionate
Share of any Imposition which is not imposed upon the Premises as a separate
entity but which is imposed upon all or part of the Property or upon the leases
or rents relating to the Property.
(i) Nothing herein contained shall be interpreted as requiring Tenant
to pay any income, excess profits or corporate capital stock 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 Imposition or an increase in any Imposition.
(ii) If it shall not be lawful for Tenant to reimburse Landlord for
any of the Impositions, the Minimum Annual Rent shall be increased by the amount
of the portion of such Imposition allocable to Tenant, unless prohibited by law.
(c) Insurance.
(i) Property. Landlord shall keep in effect, and Tenant shall pay to
Landlord its Proportionate Share of the cost of, insurance against loss or
damage to the Building or the Property by fire and such other casualties as may
be included within fire, extended coverage and special form insurance covering
the full replacement cost of the Building (but excluding coverage of Tenant's
personal property in, and any alterations by Tenant to, the Premises), and such
other insurance as Landlord may reasonably deem appropriate or as may be
required from time-to-time by any mortgagee.
(ii) Liability. Tenant, at its own expense, shall keep in effect
comprehensive general public liability insurance with respect to the Premises
and the Property, including contractual liability insurance, with such limits of
liability for bodily injury (including death) and property damage as reasonably
may be required by Landlord from time-to-time, but not less than a combined
single limit of $1,000,000 per occurrence and a general aggregate limit of not
less than $3,000,000 (which aggregate limit shall apply separately to each of
Tenant's locations if more than the Premises); however, such limits shall not
limit the liability of Tenant hereunder. The policy of comprehensive general
public liability insurance also shall name Landlord and Landlord's agent as
insured parties with respect to the Premises, shall be written on an
"occurrence" basis and not on a "claims made" basis, shall provide that it is
primary with respect to any policies carried by Landlord and that any coverage
carried by Landlord shall be excess insurance, shall provide that it shall not
be cancelable or reduced without at least 30 days prior written notice to
Landlord and shall be issued in form satisfactory to Landlord. The insurer shall
be a responsible insurance carrier which is authorized to issue such insurance
and licensed to do business in the state in which the Property is located and
which has at all times during the Term a rating of no less than A VII in the
most current edition of Best's Insurance Reports. Tenant shall deliver to
Landlord on or before the
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Commencement Date, and subsequently renewals of, a certificate of insurance
evidencing such coverage and the waiver of subrogation described below.
(iii) Waiver of Subrogation. Landlord and Tenant shall have included
in their respective property insurance policies waivers of their respective
insurers' right of subrogation against the other party. If such a waiver should
be unobtainable or unenforceable, then such policies of insurance shall state
expressly that such policies shall not be invalidated if, before a casualty, the
insured waives the right of recovery against any party responsible for a
casualty covered by the policy.
(iv) Increase of Premiums. Tenant agrees not to do anything or fail
to do anything which will increase the cost of Landlord's insurance or which
will prevent Landlord from procuring policies (including public liability) from
companies and in a form satisfactory to Landlord. If any breach of the preceding
sentence by Tenant causes the rate of fire or other insurance to be increased,
Tenant shall pay the amount of such increase as additional rent promptly upon
being billed.
(d) Repairs and Maintenance; Common Areas; Building Management. Except as
specifically otherwise provided in this Section (d). Tenant at its sole expense
shall maintain the Premises in good order and condition, promptly make all
repairs necessary to maintain such condition, and repair any damage to the
Premises caused by Tenant or its Agents. All repairs made by Tenant shall
utilize materials and equipment which are comparable to those originally used in
constructing the Building and Premises. When used in this Section (d), the term
"repairs" shall include replacements and renewals when necessary.
(i) Landlord, at its sole expense, shall make all necessary repairs
to the footings, foundations, structural steel columns and girders forming a
part of the Premises, provided that Landlord shall have no responsibility to
make any repair until Landlord receives written notice of the need for such
repair.
(ii) Landlord, at Tenant's sole expense, shall maintain and repair
the HVAC systems appurtenant to the Premises.
(iii) Landlord shall make all necessary repairs to the roof, exterior
portions of the Premises and the Building, utility and communications lines,
equipment and facilities in the Building, which serve more than one tenant, and
to the Common Areas, the cost of which shall be an operating expense of which
Tenant shall pay its Proportionate Share, provided that Landlord shall have no
responsibility to make any repair until Landlord receives written notice of the
need for such repair. Landlord shall operate and manage the Property and shall
maintain all Common Areas and any paved areas appurtenant to the Property in a
clean and orderly condition. Landlord reserves the right to make alterations to
the Common Areas from time to time. Operating expenses also shall include (A)
all sums expended by Landlord for the supervision, maintenance, repair,
replacement and operation of the Common Areas (including the costs of utility
services), (B) any costs of building improvements made by Landlord to the
Property that are required by any governmental authority or for the purpose of
reducing operating expenses and (C) a management and administrative fee
applicable to the overall operation of the Property.
(iv) Notwithstanding anything herein to the contrary, repairs and
replacements to the Property including the Premises made necessary by Tenant's
use, occupancy or alteration of, or Tenant's installation in or upon the
Property or by any act or omission of Tenant or its Agents shall be made at the
sole expense of Tenant to the extent not covered by any applicable insurance
proceeds paid to Landlord. Tenant shall not bear the expense of any repairs or
replacements to the Property arising out of or caused by any other tenant's use,
occupancy or alteration of, or any other tenant's installation in or upon, the
Property or by any act or omission of any other tenant or any other tenant's
Agents.
(e) Utility Charges. Tenant shall pay for water, sewer, gas, electricity,
heat, power, telephone and other communication services and any other utilities
supplied to or consumed in or on the Premises. Landlord shall not be responsible
or liable for any interruption in utility service, nor shall such interruption
affect the continuation or validity of this lease.
(f) Net lease. Except for the obligations of Landlord expressly set forth
herein, this lease is a "triple net lease" and Landlord shall receive the
Minimum Annual Rent as net income from the Premises, not diminished by any
expenses other than payments under any mortgages, and Landlord is not and shall
not be required to render any services of any kind to Tenant. The term "RENT" as
used in this lease means the Minimum Annual Rent, Annual Operating Expenses and
any other additional rent or sums payable by Tenant to Landlord pursuant to this
lease, all of which shall be deemed rent for purposes of Landlord's rights and
remedies with respect thereto. Tenant shall pay all Rent to Landlord within 30
days after Tenant is billed, unless otherwise provided in this lease, and
interest shall accrue on all sums due but unpaid
8. Signs. Except for signs which are located wholly within the interior of
the Premises and not visible from the exterior of the Premises, no signs
shall be placed on the Property without the prior written consent of
Landlord. All signs installed by Tenant shall
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be maintained by Tenant in good condition and Tenant shall remove all such signs
at the termination of this lease and shall repair any damage caused by such
installation, existence or removal.
9. ALTERATIONS AND FIXTURES.
------------------------
(a) Subject to Section 10, Tenant shall have the right to install its
trade fixtures in the Premises, provided that no such installation or removal
thereof shall affect any structural portion of the Property nor any utility
lines, communications lines, equipment or facilities in the Building serving any
tenant other than Tenant. At the expiration or termination of this lease and at
the option of Landlord or Tenant, Tenant shall remove such installation(s) and,
in the event of such removal, Tenant shall repair any damage caused by such
installation or removal; if Tenant, with Landlord's written consent, elects not
to remove such installation(s) at the expiration or termination of this lease,
all such installations shall remain on the Property and become the property of
Landlord without payment by Landlord.
(b) Except for non-structural changes which do not exceed $5,000 in the
aggregate, Tenant shall not make or permit to be made any alterations to the
Premises without Landlord's prior written consent. Tenant shall pay the costs of
any required architectural/engineering reviews. In making any alterations, (i)
Tenant shall deliver to Landlord the plans, specifications and necessary
permits, together with certificates evidencing that Tenant's contractors and
subcontractors have adequate insurance coverage naming Landlord and Landlord's
agent as additional insureds, at least 10 days prior to commencement thereof,
(ii) such alterations shall not impair the structural strength of the Building
or any other improvements or reduce the value of the Property or affect any
utility lines, communications lines, equipment or facilities in the Building
serving any tenant other than Tenant, (iii) Tenant shall comply with Section 10
and (iv) the occupants of the Building and of any adjoining property shall not
be disturbed thereby. All alterations to the Premises by Tenant shall be the
property of Tenant until the expiration or termination of this lease; at that
time all such alterations shall remain on the Property and become the property
of Landlord without payment by Landlord unless Landlord gives written notice to
Tenant to remove the same, in which event Tenant will remove such alterations
and repair any resulting damage. At Tenant's request prior to Tenant making any
alterations, Landlord shall notify Tenant in writing, whether Tenant is required
to remove such alterations at the expiration or termination of this lease.
10. MECHANICS' LIENS. Tenant shall pay promptly any contractors and materialmen
----------------
who supply labor, work or materials to Tenant at the Property and shall take all
steps permitted by law in order to avoid the imposition of any mechanic's lien
upon all or any portion of the Property. Should any such lien or notice of lien
be filed for work performed for Tenant other than by Landlord, Tenant shall bond
against or discharge the same within 5 days after Tenant has notice that the
lien or claim is filed regardless of the validity of such lien or claim. Nothing
in this lease is intended to authorize Tenant to do or cause any work to be done
or 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. Throughout this
lease the term "mechanic's lien" is used to include any lien, encumbrance or
charge levied or imposed upon all or any portion of, interest in or income from
the Property on account of any mechanic's, laborer's, materialman's or
construction lien or arising out of any debt or liability to or any claim of any
contractor, mechanic, supplier, materialman or laborer and shall include any
mechanic's notice of intention to file a lien given to Landlord or Tenant, any
stop order given to Landlord or Tenant, any notice of refusal to pay naming
Landlord or Tenant and any injunctive or equitable action brought by any person
claiming to be entitled to any mechanic's lien.
11. LANDLORD'S RIGHT OF ENTRY. Tenant shall permit Landlord and its Agents to
-------------------------
enter the Premises at all reasonable times following reasonable notice (except
in the event of an emergency), for the purpose of inspection, maintenance or
making repairs, alterations or additions as well as to exhibit the Premises for
the purpose of sale or mortgage and, during the last 12 months of the Term, to
exhibit the Premises to any prospective tenant. Landlord will make reasonable
efforts not to inconvenience Tenant in exercising the foregoing rights, but
shall not be liable for any loss of occupation or quiet enjoyment thereby
occasioned.
12. DAMAGE BY FIRE OR OTHER CASUALTY.
--------------------------------
(a) If the Premises or Building shall be damaged or destroyed by fire or
other casualty, Tenant promptly shall notify Landlord and Landlord, subject to
the conditions set forth in this Section 12, shall repair such damage and
restore the Premises to substantially the same condition in which they were
immediately prior to such damage or destruction, but not including the repair,
restoration or replacement of the fixtures or alterations installed by Tenant.
Landlord shall notify Tenant in writing, within 30 days after the date of the
casualty, if Landlord anticipates that the restoration will take more than 180
days from the date of the casualty to complete; in such event, either Landlord
or Tenant may terminate this lease effective as of the date of casualty by
giving written notice to the other within 10 days after Landlord's notice.
Further, if a casualty occurs during the last 12 months of the Term or any
extension thereof, Landlord may cancel this lease unless Tenant has the right to
extend the Term for at least 3 more years and does so within 30 days after the
date of the casualty.
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(b) Landlord shall maintain a 12 month rental coverage endorsement or
other comparable form of coverage as part of its fire, extended coverage and
special form insurance. Tenant will receive an abatement of its Minimum Annual
Rent and Annual Operating Expenses to the extent the Premises are rendered
untenantable as determined by the carrier providing the rental coverage
endorsement.
13. CONDEMNATION.
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(a) Termination. If (i) all of the Premises are taken by a condemnation or
otherwise for any public or quasi-public use, (ii) any part of the Premises is
so taken and the remainder thereof is insufficient for the reasonable operation
of Tenant's business or (iii) any of the Property is so taken, and, in
Landlord's opinion, it would be impractical or the condemnation proceeds are
insufficient to restore the remainder of the Property, then this lease shall
terminate and all unaccrued obligations hereunder shall cease as of the day
before possession is taken by the condemnor.
(b) Partial Taking. If there is a condemnation and this lease has not been
terminated pursuant to this Section, (i) Landlord shall restore the Building and
the improvements which are a part of the Premises to a condition and size as
nearly comparable as reasonably possible to the condition and size thereof
immediately prior to the date upon which the condemnor took possession and (ii)
the obligations of Landlord and Tenant shall be unaffected by such condemnation
except that there shall be an equitable abatement of the Minimum Annual Rent
according to the rental value of the Premises before and after the date upon
which the condemnor took possession and/or the date Landlord completes such
restoration.
(c) Award. In the event of a condemnation affecting Tenant, Tenant shall
have the right to make a claim against the condemnor for moving expenses and
business dislocation damages to the extent that such claim does not reduce the
sums otherwise payable by the condemnor to Landlord. Except as aforesaid and
except as set forth in (d) below, Tenant hereby assigns all claims against the
condemnor to Landlord
(d) Temporary Taking. No temporary taking of the Premises shall terminate
this lease or give Tenant any right to any rental abatement. Such a temporary
taking will be treated as if Tenant had sublet the Premises to the condemnor and
had assigned the proceeds of the subletting to Landlord to be applied on account
of Tenant's obligations hereunder. Any award for such a temporary taking during
the Term shall be applied first, to Landlord's costs of collection and, second,
on account of sums owing by Tenant hereunder, and if such amounts applied on
account of sums owing by Tenant hereunder should exceed the entire amount owing
by Tenant for the remainder of the Term, the excess will be paid to Tenant.
14. NON-ABATEMENT OF RENT. Except as otherwise expressly provided as to damage
---------------------
by fire or other casualty in Section 12(b) and as to condemnation in Section
13(b), there shall be no abatement or reduction of the Rent for any cause
whatsoever, and this lease shall not terminate, and Tenant shall not be entitled
to surrender the Premises.
15. INDEMNIFICATION OF LANDLORD. Subject to Sections 7(c)(iii) and 16, Tenant
---------------------------
will protect, indemnify and hold harmless Landlord and its Agents from and
against any and all claims, actions, damages, liability and expense (including
fees of attorneys, investigators and experts) in connection with loss of life,
personal injury or damage to property in or about the Premises or arising out of
the occupancy or use of the Premises by Tenant or its Agents or occasioned
wholly or in part by any act or omission of Tenant or its Agents, whether prior
to, during or after the Term, except to the extent such loss, injury or damage
was caused by the negligence of Landlord or its Agents. In case any action or
proceeding is brought against Landlord and/or its Agents by reason of the
foregoing, Tenant, at its expense, shall resist and defend such action or
proceeding, or cause the same to be resisted and defended by counsel (reasonably
acceptable to Landlord and its Agents) designated by the insurer whose policy
covers such occurrence or by counsel designated by Tenant and approved by
Landlord and its Agents. Tenant's obligations pursuant to this Section 15 shall
survive the expiration or termination of this lease.
16. WAIVER OF CLAIMS. Landlord and Tenant each hereby waives all claims for
----------------
recovery against the other for any loss or damage 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 or its Agents; provided, however,
that such waiver by Landlord shall not be effective with respect to any
liability of Tenant described in Sections 4(c) and 7(d)(iv).
17. QUIET ENJOYMENT. Landlord covenants that Tenant, upon performing all of its
---------------
covenants, agreements and conditions of this lease, shall have quiet and
peaceful possession of the Premises as against anyone claiming by or through
Landlord, subject, however, to the exceptions, reservations and conditions of
this lease.
6
<PAGE>
18. ASSIGNMENT AND SUBLETTING.
-------------------------
(a) Limitation. Tenant shall not transfer this lease, voluntarily or by
operation of law, without the prior written consent of Landlord which shall not
be withheld unreasonably. However, Landlord's consent shall not be required in
the event of any transfer by Tenant to an affiliate of Tenant which is at least
as creditworthy as Tenant as of the date of this lease and provided Tenant
delivers to Landlord the instrument described in Section (c)(iii) below,
together with a certification of such creditworthiness by Tenant and such
affiliate. Any transfer not in conformity with this Section 18 shall be void at
the option of Landlord, and Landlord may exercise any or all of its rights under
Section 23. A consent to one transfer shall not be deemed to be a consent to any
subsequent transfer. "Transfer" shall include any sublease, assignment, license
or concession agreement, change in ownership or control of Tenant, mortgage or
hypothecation of this lease or Tenant's interest therein or in all or a portion
of the Premises.
(b) Offer to Landlord. Tenant acknowledges that the terms of this lease,
including the Minimum Annual Rent, have been based on the understanding that
Tenant physically shall occupy the Premises for the entire Term. Therefore, upon
Tenant's request to transfer all or a portion of the Premises, at the option of
Landlord, Tenant and Landlord shall execute an amendment to this lease removing
such space from the Premises, Tenant shall be relieved of any liability with
respect to such space and Landlord shall have the right to lease such space to
any party, including Tenant's proposed transferee.
(c) Conditions. Notwithstanding the above, the following shall apply to
any transfer, with or without Landlord's consent:
(i) As of the date of any transfer, Tenant shall not be in default
under this lease nor shall any act or omission have occurred which would
constitute a default with the giving of notice and/or the passage of time.
(ii) No transfer shall relieve Tenant of its obligation to pay the
Rent and to perform all its other obligations hereunder. The acceptance of Rent
by Landlord from any person shall not be deemed to be a waiver by Landlord of
any provision of this lease or to be a consent to any transfer.
(iii) Each transfer shall be by a written instrument in form and
substance satisfactory to Landlord which shall (A) include an assumption of
liability by any transferee of all Tenant's obligations and the transferee's
ratification of and agreement to be bound by all the provisions of this lease,
(B) afford Landlord the right of direct action against the transferee pursuant
to the same remedies as are available to Landlord against Tenant and (C) be
executed by Tenant and the transferee.
(iv) Tenant shall pay, within 10 days of receipt of an invoice which
shall be no less than $250, Landlord's reasonable attorneys' fees and costs in
connection with the review, processing and documentation of any transfer for
which Landlord's consent is requested
19. SUBORDINATION; MORTGAGEE'S RIGHTS.
---------------------------------
(a) This lease shall be subordinate to any first mortgage or other primary
encumbrance now or hereafter affecting the Premises. Although the subordination
is self-operative, within 10 days after written request, Tenant shall execute
and deliver any further instruments confirming such subordination of this lease
and any further instruments of attornment that may be desired by any such
mortgagee or Landlord. However, any mortgagee may at any time subordinate its
mortgage to this lease, without Tenant's consent, by giving written notice to
Tenant, and thereupon this lease shall be deemed prior to such mortgage without
regard to their respective dates of execution and delivery, provided, however,
that such subordination shall not affect any mortgagee's right to condemnation
awards, casualty insurance proceeds, intervening liens or any right which shall
arise between the recording of such mortgage and the execution of this lease.
(b) It is understood and agreed that any mortgagee shall not be liable to
Tenant for any funds paid by Tenant to Landlord unless such funds actually have
been transferred to such mortgagee by Landlord
(c) Notwithstanding the provisions of Sections 12 and 13 above, Landlord's
obligation to restore the Premises after a casualty or condemnation shall be
subject to the consent and prior rights of Landlord's first mortgagee.
20. RECORDING; TENANT'S CERTIFICATE. Tenant shall not record this lease
---------------------------------
or a memorandum thereof without Landlord's prior written consent. Within 10
days after Landlord's written request from time to time:
(a) Tenant shall execute, acknowledge and deliver to Landlord a written
statement certifying the Commencement Date and Expiration Date of this lease,
that this lease is in full force and effect and has not been modified and
otherwise as set forth in the
7
<PAGE>
form of estoppel certificate attaches as Exhibit "D" or with such modifications
as may be necessary to reflect accurately the stated facts and/or such other
certifications as may be requested by a mortgagee or purchaser. Tenant
understands that its failure to execute such documents may cause Landlord
serious financial damage by causing the failure of a financing or sale
transaction.
(b) Tenant shall furnish to Landlord, Landlord's mortgagee, prospective
mortgagee or purchaser reasonably requested financial information.
21. SURRENDER; ABANDONED PROPERTY.
-----------------------------
(a) Subject to the terms of Sections 9(b),12(a) and 13(b), at the
expiration or termination of this lease, Tenant promptly shall yield up in the
same condition, order and repair in which they are required to be kept
throughout the Term, the Premises and all improvements thereto, and all fixtures
and equipment servicing the Building, ordinary wear and tear excepted.
(b) Upon or prior to the expiration or termination of this lease, Tenant
shall remove any personal property from the Property. Any personal property
remaining thereafter shall be deemed conclusively to have been abandoned, and
Landlord, at Tenant's expense, may remove, store, sell or otherwise dispose of
such property in such manner as Landlord may see fit and/or Landlord may retain
such property as its property. If any part thereof shall be sold, then Landlord
may receive and retain the proceeds of such sale and apply the same, at its
option, against the expenses of the sale, the cost of moving and storage and any
Rent due under this lease.
(c) If Tenant, or any person claiming through Tenant, shall continue to
occupy the Premises after the expiration or termination of this lease or any
renewal thereof, such occupancy shall be deemed to be under a month-to-month
tenancy under the same terms and conditions set forth in this lease, except that
the monthly installment of the Minimum Annual Rent during such continued
occupancy shall be double the amount applicable to the last month of the Term.
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 available to Landlord.
22. CURING TENANT'S DEFAULTS. If Tenant shall be in default in the performance
------------------------
of any of its obligations hereunder, Landlord, without any obligation to do so,
in addition to any other rights it may have in law or equity, may 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 sums
paid or costs incurred by Landlord in curing such default, including interest
thereon from the respective dates of Landlord's incurring such costs, which sums
and costs together with interest shall be deemed additional rent.
23. DEFAULTS - REMEDIES.
-------------------
(a) Defaults. It shall be an event of default:
(i) If Tenant does not pay in full when due any and all Rent;
(ii) If Tenant fails to observe and perform or otherwise breaches any
other provision of this lease;
(iii) If Tenant abandons the Premises, which shall be conclusively
presumed if the Premises remain unoccupied for more than 10 consecutive days, or
removes or attempts to remove Tenant's goods or property other than in the
ordinary course of business; or
(iv) If Tenant becomes insolvent or bankrupt in any sense or makes a
general assignment for the benefit of creditors or offers a settlement to
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 bill in equity or other proceeding for the appointment of a
receiver for any of Tenant's assets is commenced, or if any of the real or
personal property of Tenant shall be levied upon; provided, however, that any
proceeding brought by anyone other than Landlord or Tenant under any bankruptcy,
insolvency, receivership or similar law shall not constitute a default until
such proceeding has continued unstayed for more than 60 consecutive days.
(b) Remedies. Then, and in any such event, Landlord shall have the
following rights:
(i) To charge a late payment fee equal to the greater of $ 100 or 5% of
any amount owed to Landlord pursuant to this lease which is not paid within 5
days after the due date.
(ii) To enter and repossess the Premises, by breaking open locked doors
if necessary, and remove all persons and all or any property therefrom, by
action at law or otherwise, without being liable for prosecution or damages
therefor, and Landlord may,
8
<PAGE>
at Landlord's option, make alterations and repairs in order to relet the
Premises and relet all or any part(s) of the Premises for Tenant's account.
Tenant agrees to pay to Landlord on demand any deficiency that may arise by
reason of such reletting. In the event of reletting without termination of this
lease, Landlord may at any time thereafter elect to terminate this lease for
such previous breach.
(iii) To accelerate the whole or any part of the Rent for the balance of
the Term, and declare the same to be immediately due and payable.
(iv) To terminate this lease and the Term without any right on the part
of Tenant to save the forfeiture by payment of any sum due or by other
performance of any condition, term or covenant broken.
(c) Grace Period. Notwithstanding anything hereinabove stated, neither
party will exercise any available right because of any default of the other,
except those remedies contained in subsection (b)(i) of this Section, unless
such party shall have first given 10 days written notice thereof to the
defaulting party, and the defaulting party shall have failed to cure the default
within such period; provided, however, that:
(i) No such notice shall be required if Tenant fails to comply with
the provisions of Sections 10 or 20(a), in the case of emergency as set forth in
Section 22 or in the event of any default enumerated in subsections (a)(iii) and
(iv) of this Section.
(ii) Landlord shall not be required to give such 10 days notice more
than 2 times during any 12 month period
(iii) If the default consists of something other than the failure to
pay money which cannot reasonably be cured within 10 days, neither party will
exercise any right if the defaulting party begins to cure the default within the
10 days and continues actively and diligently in good faith to completely cure
said default.
(iv) Tenant agrees that any notice given by Landlord pursuant to this
Section which is served in compliance with Section 27 shall be adequate notice
for the purpose of Landlords exercise of any available remedies.
(d) Non-Waiver; Non-Exclusive. No waiver by Landlord of any breach by
Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by
Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of
any rights and remedies with respect to such or any subsequent breach. Efforts
by Landlord to mitigate the damages caused by Tenant's default shall not
constitute a waiver of Landlords right to recover damages hereunder. 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. No payment by Tenant or receipt or
acceptance by Landlord of a lesser amount than the total amount due Landlord
under this lease shall be deemed to be other than on account, nor shall any
endorsement or statement on any check or payment be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of Rent due, or Landlord's right to
pursue any other available remedy.
(e) Costs and Attorneys' Fees. If either party commences an action against
the other party arising out of or in connection with this lease, the prevailing
party shall be entitled to have and recover from the losing party attorneys'
fees, costs of suit, investigation expenses and discovery costs, including costs
of appeal.
24. REPRESENTATIONS OF TENANT. Tenant represents to Landlord and agrees that:
-------------------------
(a) The word "Tenant" as used herein includes the Tenant named above as
well as its successors and assigns, each of which shall be under the same
obligations and liabilities 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 of the persons named above as Tenant shall be
bound jointly 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 Tenant has complied with
the terms of Section 18 and the assignment to such assignee is permitted or has
been teed 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
thereof.
(b) If Tenant is a corporation, partnership or any other form of business
association or entity, Tenant is duly formed and in good standing, and has full
corporation or partnership power and authority, as the case may be, to enter
into this lease and has taken all corporate or partnership action, as the case
may be, necessary to carry out the transaction contemplated herein, so that when
executed, this lease constitutes a valid and binding obligation enforceable in
accordance with its terms. Tenant shall provide
9
<PAGE>
Landlord with corporate resolutions or other proof in a form acceptable to
Landlord, authorizing the execution of this lease at the time of such execution.
25. LIABILITY OF LANDLORD. The word "Landlord" as used herein includes the
---------------------
Landlord named above as well as its successors and assigns, each of which 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 or entity,
whether or not named herein, shall have no liability hereunder after it ceases
to hold title to the Premises except for obligations already accrued (and, as to
any unapplied portion of Tenant's Security Deposit, Landlord shall be relieved
of all liability therefor upon transfer of such portion to its successor in
interest) and Tenant shall look solely to Landlords successor in interest for
the performance of the covenants and obligations of the Landlord hereunder which
thereafter shall accrue. Neither Landlord nor any principal of Landlord nor any
owner of the Property, 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 Landlords obligations
under this lease or otherwise, Tenant shall look solely to the equity of
Landlord in the Property for the satisfaction of Tenant's claims.
Notwithstanding the foregoing, no mortgagee or ground lessor succeeding to the
interest of Landlord hereunder (either in terms of ownership or possessory
rights) shall be (a) liable for any previous act or omission of a prior
landlord, (b) subject to any rental offsets or defenses against a prior landlord
or (c) bound by any amendment of this lease made without its written consent, or
by payment by Tenant of Minimum Annual Rent in advance in excess of one monthly
installment.
26. INTERPRETATION; DEFINITIONS.
---------------------------
(a) Captions. The captions in this lease are for convenience only and are
not a part of this lease and do not in any way define, limit, describe or
amplify the terms and provisions of this lease or the scope or intent thereof.
(b) Entire Agreement. This lease represents the entire agreement between
the parties hereto and there are no collateral or oral agreements or
understandings between Landlord and Tenant with respect to the Premises or the
Property. No rights, easements or licenses are acquired in the Property or any
land adjacent to the Property by Tenant by implication or otherwise except as
expressly set forth in the provisions of this lease. This lease shall not be
modified in any manner except by an instrument in writing executed by the
parties. The masculine (or neuter) pronoun and the singular number shall include
the masculine, feminine and neuter genders and the singular and plural number.
The word "including" followed by any specific item(s) is deemed to refer to
examples rather than to be words of limitation. Both parties having participated
fully and equally in the negotiation and preparation of this lease, this lease
shall not be more strictly construed, nor any ambiguities in this lease
resolved, against either Landlord or Tenant.
(c) Covenants. Each covenant, agreement, obligation, term, condition or
other provision herein contained shall be deemed and construed as a separate and
independent covenant of the party bound by, undertaking or making the same, not
dependent on any other provision of this lease unless otherwise expressly
provided. All of the terms and conditions set forth in this lease shall apply
throughout the Term unless otherwise expressly set forth herein.
(d) 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
15% per annum.
(e) Severability; Governing Law. If any provisions of this lease shall be
declared unenforceable in any respect, such unenforceability shall not affect
any other provision of this lease, and each such provision shall be deemed to be
modified, if possible, in such a manner as to render it enforceable and to
preserve to the extent possible the intent of the parties as set forth herein.
This lease shall be construed and enforced in accordance with the laws of the
state in which the Property is located.
(f) "Mortgage" and "Mortgagee." The word "mortgage" as used herein
includes any lien or encumbrance on the Premises or the Property or on any part
of or interest to 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" as used herein includes the holder of
any mortgage, including any ground lessor 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 mortgage by any representative or servicing agent of
such mortgagee.
(g) "Person." The word "person" is used herein to include a natural
person, a partnership, a corporation, an association and any other form of
business association or entity.
(h) Proportionate Share. At any time or times, upon request of Landlord or
of any tenant of the Building, the method for allocating Tenant's Proportionate
Share of any Impositions, cost, charge, rent, expense or payment then or
thereafter payable shall be redetermined by an independent qualified expert. The
cost of such redetermination shall be borne by the tenants of the Building in
10
<PAGE>
the same proportion as that determined by such expert for reallocation of said
relevant sum; except that if such redetermination is requested by a tenant, the
cost thereof shall be borne entirely by such tenant if the proportionate share
of said relevant sum allocable to such tenant as the result of such
redetermination shall not vary by at least 5% from the amount which would have
been allocable to such tenant in accordance with the percentage based on square
foot area.
27. NOTICES. Any notice or other communications under this lease shall be in
-------
writing and addressed to Landlord or Tenant at their respective addresses
specified at the beginning of this lease, except that after the Commencement
Date Tenant's address shall be at the Premises, (or to such other address as
either may designate by notice to the other) with a copy to any mortgagee or
other party designated by Landlord. Each notice or other communication shall be
deemed given if sent by prepaid overnight delivery service or by certified mail,
return receipt requested, postage prepaid or in any other manner, with delivery
in any case evidenced by a receipt, and shall be deemed received on the day of
actual receipt by the intended recipient or on the business day delivery is
refused. The giving of notice by Landlord's attorneys, representatives and
agents under this Section shall be deemed to be the acts of Landlord; however,
the foregoing provisions governing the date on which a notice deemed to have
been received shall mean and refer to the date on which a party to this lease,
and not its counsel or other recipient to which a copy of the notice may be
sent, is deemed to have received the notice.
28. SECURITY DEPOSIT. At the time of signing this lease, Tenant shall deposit
----------------
with Landlord the Security Deposit to be retained by Landlord as cash security
for the faithful performance and observance by Tenant of the provisions of this
lease. Tenant shall not be entitled to any interest whatever on the Security
Deposit. Landlord shall have the right to commingle the Security Deposit with
its other funds. Landlord may use the whole or any part of the Security Deposit
for the payment of any amount as to which Tenant is in default hereunder or to
compensate Landlord for any loss or damage it may suffer by reason of Tenant's
default under this lease. If Landlord uses all or any portion of the Security
Deposit as herein provided, within 10 days after written demand therefor, Tenant
shall pay Landlord cash in amount equal to that portion of the Security Deposit
used by Landlord. If Tenant shall comply fully and faithfully with all the
provisions of this lease, the Security Deposit shall be returned to Tenant after
the Expiration Date and surrender of the Premises to Landlord.
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, Landlord and Tenant have executed this lease.
Landlord:
ROUSE & ASSOCIATES-205 GREAT VALLEY
PARKWAY
Date Signed: 3/8/00 By: Liberty Property Limited
Partnership,
Sole General Partner
By: Liberty Property Trust, Sole
General Partner
/s/ Leslie R. Price
----------------------------
Leslie R. Price, Senior Vice
President
Date Signed: 3/7/00 Tenant:
RAVISENT TECHNOLOGIES
By: /s/ Frank Wilde
---------------------------
Name: Frank Wilde
Title: Chief Executive Officer
Attest: /s/ Lisa Coleman
------------------------------
Name: Lisa K. Coleman
Title: Associate General Counsel
11
<PAGE>
RIDER
-----
29. PA ADDITIONAL REMEDIES.
----------------------
(a) When this lease and the Term or any extension thereof shall have
been terminated on account of any default by Tenant, or when the Term or any
extension thereof shall have expired, Tenant hereby authorizes any attorney of
any court of record of the Commonwealth of Pennsylvania to appear for Tenant and
for anyone claiming by, through or under Tenant and to confess judgment against
all such parties, and in favor of Landlord, in ejectment and for the recovery of
possession of the Premises, for which this lease or a true and correct copy
hereof shall be good and sufficient warrant. AFTER THE ENTRY OF ANY SUCH
JUDGMENT A WRIT OF POSSESSION MAY BE ISSUED THEREON WITHOUT FURTHER NOTICE TO
TENANT AND WITHOUT A HEARING. If 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(s) or upon the termination of this lease or Tenant's
right of possession as herein set forth, to again confess judgment as herein
provided, for which this lease or a true and correct copy hereof shall be good
and sufficient warrant.
(b) If Tenant shall default in the payment of the Rent due hereunder,
Tenant hereby authorizes any attorney of any court of record of the Commonwealth
of Pennsylvania to appear for Tenant and to confess judgment against Tenant, and
in favor of Landlord, for all sums due hereunder plus interest, costs and an
attorney's collection commission equal to the greater of 10% of all such sums or
$1,000, for which this lease or a true and correct copy hereof shall be good and
sufficient warrant. TENANT UNDERSTANDS THAT THE FOREGOING PERMITS LANDLORD TO
ENTER A JUDGMENT AGAINST TENANT WITHOUT PRIOR NOTICE OR HEARING. ONCE SUCH A
JUDGMENT HAS BEEN ENTERED AGAINST TENANT, ONE OR MORE WRITS OF EXECUTION OR
WRITS OF GARNISHMENT MAY BE ISSUED THEREON WITHOUT FURTHER NOTICE TO TENANT AND
WITHOUT A HEARING, AND, PURSUANT TO SUCH WRITS, LANDLORD MAY CAUSE THE SHERIFF
OF THE COUNTY IN WHICH ANY PROPERTY OF TENANT IS LOCATED TO SEIZE TENANT'S
PROPERTY BY LEVY OR ATTACHMENT. IF THE JUDGMENT AGAINST TENANT REMAINS UNPAID
AFTER SUCH LEVY OR ATTACHMENT, LANDLORD CAN CAUSE SUCH PROPERTY TO BE SOLD BY
THE SHERIFF EXECUTING THE WRITS, OR, IF SUCH PROPERTY CONSISTS OF A DEBT OWED TO
TENANT BY ANOTHER ENTITY, LANDLORD CAN CAUSE SUCH DEBT TO BE PAID DIRECTLY TO
LANDLORD IN AN AMOUNT UP TO BUT NOT TO EXCEED THE AMOUNT OF THE JUDGMENT
OBTAINED BY LANDLORD AGAINST TENANT, PLUS THE COSTS OF THE EXECUTION. Such
authority shall not be exhausted by one exercise thereof, but judgment may be
confessed as aforesaid from time to time as often as any of said rental and
other sums shall fall due or be in arrears, and such powers may be exercised as
well after the expiration of the initial term of this lease and during any
extended or renewal term of this lease and after the expiration of any extended
or renewal term of this lease.
(c) The warrants to confess judgment set forth above shall continue in
full force and effect and be unaffected by amendments to this lease or other
agreements between Landlord and Tenant even if any such amendments or other
agreements increase Tenant's obligations or expand the size of the Premises.
Tenant waives any procedural errors in connection with the entry of any such
judgment or in the issuance of any one or more writs of possession or execution
or garnishment thereon.
(d) TENANT KNOWINGLY AND EXPRESSLY waives (i) ANY RIGHT, INCLUDING,
WITHOUT LIMITATION, UNDER ANY APPLICABLE STATUE, WHICH TENANT MAY HAVE TO
RECEIVE A NOTICE TO QUIT PRIOR TO LANDLORD COMMENCING AN ACTION FOR REPOSSESSION
OF THE PREMISES AND (ii) ANY RIGHT WHICH TENANT MAY HAVE TO NOTICE AND TO
HEARING PRIOR TO A LEVY UPON OR ATTACHMENT OF TENANT'S PROPERTY OR THEREAFTER.
Initials on behalf
of Tenant: /s/ FW
R-1
<PAGE>
30. TENANT IMPROVEMENTS.
-------------------
(a) Completion by Tenant. The Premises shall be completed by Tenant and
its contractor(s), at Tenant's sole expense, in accordance with plans to be
submitted to Landlord for approval, whose approval shall not be unreasonably
withheld, no later than fifteen days (15) prior to the commencement of any
Tenant construction. Upon approval of said plans, Landlord shall consent to the
alterations Tenant intends to make to the Premises in accordance with the Plans
provided that Tenant complies with Sections 13 and 14 of this lease and the
following conditions:
(b) Conditions to Access: At least ten (10) days prior to commencement
of construction, Tenant shall cause to be delivered to Landlord a certificate of
insurance for each of Tenant's contractors evidencing adequate insurance
coverage naming Landlord and Landlord's agent as additional insured. Without
limiting any provision of this lease, prior to commencement of construction,
Tenant shall cause to be delivered to Landlord a copy of a waiver of liens as
duly executed by Tenant and all of Tenant's contractors and as filed in the
Office of the Prothonotary for the county in which the Premises is located.
(c) Completion Walk Through by Landlord: In addition to the right of
Landlord and its Agents to inspect the Premises set forth in Section 11 of this
lease, Landlord and its Agents shall have the right to conduct a walk-through
inspection of the Premises as completed by Tenant.
(d) Warranties: The warranties from Tenant's contractor(s) shall be for
the benefit of Landlord as well as Tenant and Tenant shall deliver such
warranties to Landlord upon receipt.
(e) Workmanship: All construction shall be done in a good and
workmanlike manner and shall comply at the time of completion with all Laws and
Requirements. Tenant shall deliver to Landlord copies of all certificates of
occupancy, permits and licenses required to be issued by any authority in
connection with Tenant's construction.
3. Tenant Allowance.
(a) Allowance Amount: Landlord agrees to credit Tenant with an
allowance of Two Hundred Sixty Thousand Dollars ($260,000.00) (the
"Tenant Allowance") towards improvements to the premises as outlined on
the plans dated January 13, 2000 as prepared by Today's Systems
Corporation, attached as Exhibit "A" , and specifications as prepared
by the RC Company, attached as Exhibit "A-1" to include painting and
carpeting entire premises. Landlord shall sprinkler entire premises and
separate electric.
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(b) Method of Reimbursement: Landlord agrees to reimburse
Tenant, within thirty (30) days of being billed therefor, the Tenant Allowance;
provided however that Tenant shall submit with its request for payment an
itemized statement showing the general category of expenses for which it is
seeking reimbursement, copies of receipts for all materials and supplies, and a
calculation showing requests for payment made prior to that date, payments made
on such requests.
(c) Acceptance of Premises: Tenant has examined and knows the condition
of the Property, the zoning, streets, sidewalks, parking areas, curbs and access
ways adjoining it, visible easements, any surface conditions and the present
uses, and Tenant accepts them in the condition in which they now are, without
relying on any representation, covenant or warranty by Landlord, except as to
the work to be performed by Landlord pursuant to subsection (a) above. Tenant's
occupancy of the Premises shall constitute acceptance of such work by Landlord.
31. AMENDMENT TO ARTICLE 3 ENTITLED "ACCEPTANCE OF PREMISES".
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Article 3 is hereby amended by deleting the word "zoning" in the first
line thereof, and inserting, in the second line, after the phrase "present uses"
the following:
", except as hereinafter provided,".
Article 3 is further amended by adding at the end of the last sentence,
the following clause:
", which consent shall not be unreasonably withheld,
conditioned or delayed. Landlord represents and warrants that it has received no
notice that the Premises may not be lawfully used for the Use specified in
Article 1(f) above."
32. AMENDMENT TO ARTICLE 4 ENTITLED "USE; COMPLIANCE".
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Article 4 (b) is hereby amended by adding the following at the end of
the subsection:
"Except as provided above, Landlord shall comply at its sole expense
(including making any alterations or improvements) with all Laws and
Requirements regulating the Property, including but not limited to, those Laws
and Requirements relating to or requiring the alteration or improvement of, the
footings, foundations, structural steel columns and girders forming part of the
Property (unless the need for such compliance arises out of Tenant's use,
occupancy or alteration of the Property, or by any act or omission of Tenant or
its agents, or by reason of a change in the Laws and Requirements subsequent to
the date of this Lease). "
Article 4 (c) is hereby amended by adding the following at the end of
such subsection:
"Landlord represents and warrants that, to the best of its knowledge,
there are not any hazardous substances, hazardous wastes or other materials
regulated under any local, state or
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federal rules, laws, ordinances, statutes or regulations ("environmental laws")
on or under the Property, except such as under the environmental laws do not
need to be remediated, that the Property, including the Premises is not in
violation of any environmental laws and that there are not any underground
storage tanks located on the Property."
Article 4 (d) is hereby amended by adding the following in the second
line after the phrase "Restricted Activities"
", which Restricted Activities affect or are reasonably likely to
affect the Premises or Property".
33.AMENDMENT TO ARTICLE 7 ENTITLED "OPERATION OF PROPERTY; PAYMENT OF EXPENSES".
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Article 7 (a) is hereby amended by inserting in the seventh line,
after the word "Landlord" , the phrase "in Landlord's reasonable judgment".
Article 7 (b) is hereby modified by adding the following at the end of
the first paragraph thereof: "Notwithstanding the foregoing, if Landlord
receives a refund for Impositions with respect to which Tenant has contributed
its proportionate share, Landlord shall remit to Tenant its proportionate share
of such refund. "
Article 7 (d) is hereby amended by inserting on the second line,
before the word "use" and on the same line before the word "act" the phrase
"negligent or improper".
Article 7 (h) is hereby added to Article 7 to provide as follows
"(h) ITEMS EXCLUDED FROM ANNUAL OPERATING EXPENSES
Notwithstanding anything contained in this lease to the contrary,
Annual Operating Expenses shall not include:
(i) Sums expended for obligations or liabilities incurred in
connection with the initial or additional construction or reconstruction of the
Building or other construction costs or matters which are covered by proceeds of
insurance;
(ii) Condemnation costs or uninsured legal claims against the
Landlord;
(iii) The cost of any repair, replacement, or other item which is
capitalized (except for "Included Capital Items" as hereinafter defined);
(iv) Any charge for depreciation, debt service, interest, or rents
paid or incurred by Landlord (other than related to Included Capital Items);
(v) Wages, fees, or other benefits paid to executive or supervisory
personnel (but not maintenance personnel);
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(vi) Leasing commissions and other expenses associated with leasing
space in the Building or enforcing the leases of other tenants;
(vii) Costs and expenses associated with the clean-up of any condition
hazardous to the health or environment (provided, however, that Tenant shall not
be relieved of its responsibilities pursuant to Section 4(c) of this lease);
(viii) Costs reimbursed or reimbursable through insurance proceeds to
repair or replace damage by fire or other insured casualty;
(ix) Any costs reimbursable under contractor warranties;
(x) Legal fees relating to preparation of tenant leases, financing
of the Building, and violations by the Landlord or any tenant under tenant
leases;
(xi) Fees and charges paid to any party affiliated with Landlord to
the extent such fees or charges exceed the fees or charges that would have been
incurred to an independent entity in an arm's length transaction;
(xii) Cost of original art work;
(xiii) Rent for space occupied by a management office or other Building
facilities. (provided, however, Tenant shall be obligated to pay its
Proportionate Share of charges applicable to the Building for space occupied by
personnel maintaining the Building, whether such space is located in the
Building or in another building in the project);
(xiv) Cost of furnishing any additional or special service to any
tenant, if such service is not also available to Tenant;
(xv) The cost of any personnel, materials, or services shared by the
Building and any other buildings owned and operated by Landlord, to the extent
allocable to such other buildings;
(xvi) Costs of upgrading the common areas of the Building; and
(xvii) The cost of any fine for Landlord's failure to comply with any
applicable laws, unless caused by Tenant.
The term "Included Capital Items" shall mean Tenant's pro rata share of
capital improvements which Landlord shall install or construct in compliance
with governmental requirements enacted after the date of this lease or as
energy-saving devices which are intended to reduce other items of operating
expenses. Such pro rata share of capital items shall be determined as if such
capital improvement had a useful life of ten years and Tenant shall only be
required to pay for the portion of the useful life of the capital improvement
which falls within the term or any extended term of this lease. Tenant shall
thus make payments in equal annual installments for such capital improvements,
each annual payment to be equal to
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Tenant's share of one-tenth of the cost of the capital improvement,
including any interest or finance charges thereon until the term or any renewal
thereof shall expire or until the cost of the improvement has been fully
amortized pursuant to this provision, whichever shall first occur; such payment
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 annual operating expenses pursuant to Paragraph 7 (a) above. "
Article 7(i) is hereby added to Article 7 to provide as follows:
"(i) Tenant's Right to Audit Operating Expenses.
In addition, Tenant shall have the right, within ninety (90) days after
receipt of a bill from Landlord for additional operating expenses for any
calendar year period, to obtain an audit by an independent certified public
accountant (selected by Tenant with Landlord's written consent, which shall not
be withheld unreasonably) to determine the accuracy of Landlord's certification
of the amount of operating expenses charged Tenant. If it is determined that
Tenant's liability for operating expenses for such calendar year is less that
ninety-five percent (95%) of that amount which Landlord previously certified to
Tenant for such calendar year, Landlord shall pay to Tenant the cost of such
audit, and regardless of such percentage shall refund promptly to Tenant the
amount of the additional rent paid by Tenant for such calendar year which
exceeds the amount for which Tenant actually is liable, as determined following
such audit and interest at the rate of ten (10%) percent per annum from the
date of any overpayment by Tenant. Except as set forth above, Tenant shall bear
the total cost of any such audit."
34. AMENDMENT TO ARTICLE 8 ENTITLED "SIGNS".
---------------------------------------
Article 8 is amended by adding the following sentence:
"Landlord agrees to display Tenant's name on the exterior door in vinyl
lettering".
35. AMENDMENT TO ARTICLE 9 ENTITLED "ALTERATIONS AND FIXTURES".
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Article 9 (b) is hereby amended to insert in the second line after the
word "consent" the following:
", which consent shall not be unreasonably withheld or delayed".
In addition, in the same line, before the word "costs" the word
"reasonable" is inserted.
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36. AMENDMENT TO ARTICLE 10 ENTITLED "MECHANICS LIENS".
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Article 10 is hereby amended by deleting the fourth line thereof, and
substituting the following:
"Tenant shall within five (S) days bond against the same, or proceed
with due diligence to discharge the same within one hundred twenty (120) days,
each such time period being measured from the date when Tenant has notice that
the lien or claim is filed regardless of the"
37. AMENDMENT TO ARTICLE 12 ENTITLED "DAMAGE BY FIRE OR OTHER CASUALTY".
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Article 12 (a) is hereby amended by deleting the word " if" in the
fifth line and inserting in its place the phrase "as to whether" and by changing
180 days to 270 days.
The second sentence beginning on the fourth line of Article 12 (a) is
further amended by ending the sentence after the word "complete" on the fifth
line, and deleting the rest of the sentence up through the word "notice" on the
seventh line.
The following is inserted as the third sentence in Article 12 (a):
"If Landlord's notice provides that Landlord anticipates that the
restoration will take more than 270 days to complete, or if such restoration has
not been completed within 270 days, then either Landlord or Tenant may terminate
this lease effective as of the date of the casualty by giving written notice to
the other within ten days after Landlord's notice, or the expiration of the 270
day period as the case may be.
38. AMENDMENT TO ARTICLE 13 ENTITLED "CONDEMNATION".
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Article 13 (b) is hereby amended by inserting the phrase "and annual
operating expenses" after the phrase "minimum annual rent" in the fifth line.
39. AMENDMENT TO ARTICLE 15 ENTITLED "INDEMNIFICATION OF LANDLORD".
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Insert the word "negligence" in line 4, before the word "act" .
40. AMENDMENT TO ARTICLE 18 ENTITLED "ASSIGNMENT AND SUBLETTING".
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Article 18 (a) is hereby amended by inserting in the third and fifth
lines after the word "affiliate" the phrase "or corporate successor".
Article 18 (c) (iii) is amended by inserting the word "reasonably" in
the first line after the word " substance".
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41. AMENDMENT TO ARTICLE 19 ENTITLED "SUBORDINATION; MORTGAGEE'S RIGHTS".
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Article 19 (a) is amended by changing (10) days in the second line to
(15) days.
A new third sentence is inserted in Article 19 (a) to provide as
follows:
"Landlord agrees to request a non-disturbance agreement from any such
mortgagee in form and substance reasonably satisfactory to Tenant".
42. AMENDMENT TO ARTICLE 20 ENTITLED "TENANT CERTIFICATE".
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In the second line, after the word, "Landlord's" the word " or
Tenant's" is hereby inserted. At the beginning of clause (a), the words
"Landlord or" are inserted and the phrase "delivered to Landlord" is amended to
state "deliver to the requested party" .
43. AMENDMENT TO ARTICLE 23 ENTITLED "DEFAULTS - REMEDIES".
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In Article 23 (d), in the second line, after the phrase "losing party",
the word "reasonable" is inserted.
44. AMENDMENT TO ARTICLE 23 (F).
---------------------------
Article 23 (f) is hereby amended to provide as follows:
"(f) LANDLORD'S DUTY TO MITIGATE DAMAGES
In the event that Tenant defaults under any of its obligations under
this lease resulting in Tenant no longer occupying the Premises, Landlord shall
use reasonable efforts to relet the Premises. However, Landlord shall have no
obligation to relet the Premises in preference to other space which may then be
available for rental in the Building or in other buildings owned by Landlord or
its affiliates. If Landlord is successful in reletting the Premises, Tenant
shall be entitled to a credit in mitigation of Landlord's damages in the amount
of all income received by Landlord pursuant to such reletting and attributable
to the term of this lease, after Landlord has first recovered from such income
the costs of such reletting (e.g., real estate brokerage commissions and the
cost of altering the Premises for the substitute tenant).
45. AMENDMENT TO ARTICLE 25 ENTITLED "LIABILITY OF LANDLORD".
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In the fourth line, after the word "obligations" the phrase "or
causes of action" is inserted.
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46. LANDLORD'S INDEMNIFICATION OF TENANT.
------------------------------------
Subject to Sections 7 (c)(iii) and 16, Landlord will protect, indemnify
and hold harmless Tenant and its Agents from and against any and all claims,
actions, damages, liability and expense (including fees of attorneys,
investigators and experts) in connection with loss of life, personal injury or
damage to property caused to any person in or about the Premises occasioned
wholly or in part by the negligence of Landlord or it Agents, except to the
extent such loss, injury or damage was caused by the negligence of Tenant or its
Agents. In case any action or proceeding is brought against Tenant and/or its
Agents by reason of the foregoing, Landlord, at its expense, shall resist and
defend such action or proceeding, or cause the same to be resisted and defended
by counsel (reasonably acceptable to Tenant and its Agents) designated by the
insurer whose policy covers such occurrence or by counsel designated by Landlord
and approved by Tenant and its Agents. Landlord's obligations pursuant to this
Section shall survive the expiration or termination of this Lease.
47. REIMBURSEMENT ALLOWANCE.
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Landlord shall reimburse Tenant the amount of $330,000.00 to compensate
for moving and construction costs associated with Great Valley Parkway, which
Landlord shall pay to Tenant within one (1) week after Tenant vacates the entire
premises at 1 Great Valley Parkway.
48. RIGHT OF FIRST OFFER.
--------------------
Additional Contiguous Space. When the 39,889 square foot contiguous
space to the Premises, shown as "Additional Space" on Exhibit "F" (the
"Additional Space"), becomes vacant, and provided that Landlord has not given
Tenant notice of default more than two (2) times during the immediately
preceding twelve (12) months, that there then exists no event of default by
Tenant under this lease nor any event that with the giving of notice and/or the
passage of time would constitute a default, and that Tenant is the sole occupant
of the Premises, Tenant shall have the right of first offer to lease all of the
Additional Space, subject to the following:
(a) Landlord shall notify Tenant when the Additional Space becomes
vacant and Tenant shall have seven (7) days following receipt of such notice
within which to notify Landlord in writing that Tenant is interested in
negotiating terms for leasing such Additional Space and to have its offer
considered by Landlord prior to the leasing by Landlord of the Additional Space
to a third party. If Tenant notifies Landlord within such time period that
Tenant is so interested, then Landlord and Tenant shall have 30 days following
Landlord's receipt of such notice from Tenant within which to negotiate mutually
satisfactory terms for the leasing of the Additional Space by Tenant and to
execute an amendment to this lease incorporating such terms or a new lease for
the Additional Space.
(b) If Tenant does not notify Landlord within such 7 days of its
interest in leasing the Additional Space or if Tenant does not execute such
amendment or lease within such 30 days, if applicable, then this right of first
offer to lease the Additional Space will lapse and be of no further
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force or effect and Landlord shall have the right to lease all or part of the
Additional Space to any other party at any time on any terms and conditions
acceptable to Landlord.
(c) This right of first offer to lease the Additional Space is a
one-time right if and when the Additional Space first becomes available, is
personal to Tenant and is non-transferable to any assignee or sublessee
(regardless of whether any such assignment or sublease was made with or without
Landlord's consent) or other party.
49. LANDLORD'S DEFAULT.
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If Landlord shall be in default in the performance of any of its obligations
hereunder, which remains uncured past the applicable cure period given herein,
then Tenant, without any obligation to do so, may elect to cure such default on
behalf of Landlord after giving at least thirty days prior written notice
(except in the case of emergency) to Landlord. If the default is of a nature
that may take longer than 30 days to cure, then provided Landlord undertakes the
cure within the thirty day period, and continues in good faith to diligently
prosecute such cure, then the cure period shall be extended for such time as may
be reasonably necessary to cure such default. Landlord shall reimburse Tenant
upon demand for any sums paid or costs incurred by Tenant in curing such
default, including interest thereon from the respective dates of Tenant's
incurring such costs. However, under no circumstances is Tenant permitted to set
off any such amounts against the rent and other lease charges coming due under
this Lease, or to withhold rent or any other lease charges.
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