<PAGE>
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ONE LOGAN SQUARE OFFICE LEASE
Between
OLS OFFICE PARTNERS, L.P.
(a Delaware limited partnership)
as Landlord
-and-
I-TRAX.COM
(a Delaware corporation)
as Tenant
================================
Dated: April 10, 2000
Premises:
4,659 Rentable Square Feet
26th Floor - Suite 2615
One Logan Square
18th and Cherry Streets
Philadelphia, Pennsylvania 19103
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<PAGE>
ONE LOGAN SQUARE OFFICE LEASE
TABLE OF CONTENTS
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Paragraph Page
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1. Demised Premises; Use....................................................................................1
1.1. Letting and Demised Premises; Use...............................................................1
1.2. Common Facilities...............................................................................1
1.3. Rentable Square Feet............................................................................1
2. Term; Commencement.......................................................................................2
2.1. Duration........................................................................................2
2.2. Substantial Completion..........................................................................2
2.3. Confirmation....................................................................................2
2.4. Acceptance of Work..............................................................................2
3. Minimum Rent; Increases in Minimum Rent; Security Deposit................................................3
3.1. Amount and Payment..............................................................................3
3.2. Partial Month...................................................................................3
3.3. Address For Payment.............................................................................3
3.4. Non-Waiver of Rights............................................................................3
3.5. Additional Sums Due; No Set-Off.................................................................4
3.6. Personal Property and Other Taxes...............................................................4
3.7. Security Deposit................................................................................4
4. Increases in Taxes, Operating Costs......................................................................5
4.1. Definitions.....................................................................................5
4.2. Determination of Tenant's Share of Taxes.......................................................11
4.3. Determination of Tenant's Share of Operating Expenses..........................................12
4.4. Disputes.......................................................................................13
4.5. Right to Audit.................................................................................13
4.6. Survival.......................................................................................15
5. Services................................................................................................15
5.1 HVAC, Steam and Electricity....................................................................15
5.2. Water and Sewer................................................................................18
5.3. Elevator; Access...............................................................................19
5.4. Janitorial.....................................................................................19
5.5. Security.......................................................................................19
5.6. Repairs........................................................................................20
5.7. Directory......................................................................................20
5.8. Overhead Fee...................................................................................20
5.9. Limitation Regarding Services..................................................................20
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<TABLE>
<CAPTION>
<S> <C> <C>
6. Care of Demised Premises................................................................................20
6.1. Insurance and Governmental Requirements........................................................21
6.2. Access.........................................................................................21
6.3. Condition......................................................................................21
6.4. Surrender......................................................................................22
6.5. Signs..........................................................................................22
6.6. Care; Insurance................................................................................22
6.7. System Changes.................................................................................22
6.8. Alterations; Additions.........................................................................23
6.9. Mechanics' Liens...............................................................................23
6.10. Vending Machines...............................................................................23
6.11. Rules and Regulations..........................................................................23
6.12. Environmental Compliance.......................................................................24
7. Subletting and Assigning................................................................................26
7.1. General Restrictions...........................................................................26
7.2. Definitions....................................................................................26
7.3. Procedure for Approval of Transfer.............................................................27
7.4. Recapture......................................................................................28
7.5. Conditions.....................................................................................28
7.6. Special Conditions for Transfers to Affiliates of Tenant.......................................28
7.7. No Release.....................................................................................29
8. Fire or Other Casualty..................................................................................29
9. Regarding Insurance and Liability.......................................................................29
9.1. Damage in General..............................................................................29
9.2. Indemnity......................................................................................30
9.3. Tenant's Insurance.............................................................................30
9.4. Landlord's Insurance...........................................................................31
9.5. Waiver of Subrogation..........................................................................31
9.6. Limitation on Personal Liability...............................................................31
9.7. Successors in Interest to Landlord, Mortgagees.................................................32
9.8. Survival.......................................................................................32
10. Eminent Domain..........................................................................................32
11. Insolvency..............................................................................................33
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<TABLE>
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<S> <C> <C>
12. Default.................................................................................................33
12.1. Events of Default..............................................................................33
12.2. Accelerated Rent Component.....................................................................34
12.3. Re-entry.......................................................................................34
12.4. Continuing Liability...........................................................................34
12.5. Credit.........................................................................................35
12.6. Limited Duty Mitigate..........................................................................35
12.7. Confession of Judgment.........................................................................36
12.8. Bankruptcy.....................................................................................37
12.9. Waiver of Defects..............................................................................37
12.10. Non-Waiver by Landlord.........................................................................37
12.11 Partial Payment................................................................................37
12.12. Overdue Payments...............................................................................37
12.13. Cumulative Remedies............................................................................37
13. Subordination...........................................................................................38
13.1. General........................................................................................38
13.2. Rights of Mortgagee or Ground Lessor...........................................................38
13.3. Modifications..................................................................................38
14. Notices.................................................................................................39
14.1. If to Landlord.................................................................................39
14.2. If to Tenant...................................................................................39
15. Holding Over............................................................................................40
16. Reservations in Favor of Landlord.......................................................................40
17. Completion of Improvements; Delay in Possession.........................................................40
17.1. Landlord Improvements..........................................................................40
17.2. Intentionally Omitted..........................................................................40
17.3. Performance of Landlord and Tenant Improvements................................................40
17.4. Acceptance.....................................................................................40
17.5. Delay in Possession............................................................................41
18. Communication and Computer Lines........................................................................41
18.1. Landlord Reservation...........................................................................42
18.2. Removal of Lines...............................................................................42
18.3. Communication Contractors......................................................................43
19. Landlord's Reliance.....................................................................................44
20. Prior Agreements; Amendments............................................................................44
21. Captions................................................................................................44
22. Landlord's Right to Cure................................................................................45
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<TABLE>
<CAPTION>
<S> <C> <C>
23. Estoppel Statement......................................................................................45
24. Relocation of Tenant....................................................................................45
25. Broker..................................................................................................46
26. Miscellaneous...........................................................................................46
26.1. Certain Interpretations........................................................................46
26.2. Partial Invalidity.............................................................................46
26.3. Governing Law..................................................................................46
26.4. Light and Air..................................................................................46
26.5. Recording......................................................................................46
27. Quiet Enjoyment.........................................................................................46
28. Confidentiality.........................................................................................47
</TABLE>
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SCHEDULE OF EXHIBITS
Exhibit Title (Reference)
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A FLOOR PLAN OF THE DEMISED
PREMISES (1.1)
B LEGAL DESCRIPTION (1.1)
C CONFIRMATION OF LEASE TERM (2.3)
D JANITORIAL SERVICES (5.4)
E RULES AND REGULATIONS (6.11)
F RESPECTING IMPROVEMENTS TO THE
DEMISED PREMISES (2.2, 6.8, 17)
Annex: Building Standard Construction Items
G ESTOPPEL CERTIFICATE
<PAGE>
ONE LOGAN SQUARE
OFFICE LEASE
THIS OFFICE LEASE (the "Lease") is made this 10th day of April, 2000,
by and between OLS OFFICE PARTNERS, L.P., a Delaware limited partnership
(hereinafter called "Landlord"), and I-TRAX.COM, a Delaware corporation
(hereinafter called "Tenant").
1. Demised Premises; Use.
1.1. Letting and Demised Premises; Use. Landlord, for the
term and subject to the provisions and conditions hereof, leases to Tenant, and
Tenant rents from Landlord, the space (hereinafter referred to as the "Demised
Premises" and more particularly delineated on the floor plan attached hereto as
Exhibit "A" and made a part hereof) being, for purposes of the provisions hereof
4,659 rentable square feet located on the 26th floor of the office building
(hereinafter referred to as the "Building") known as One Logan Square, or such
other name as Landlord may from time to time designate, located at 18th and
Cherry Streets, City and County of Philadelphia, Pennsylvania 19103, a legal
description of which is shown on Exhibit "B" attached hereto, and such Demised
Premises shall be used by Tenant only for general office purposes and associated
incidental uses and for no other purpose without the prior written consent of
Landlord.
1.2. Common Facilities. Tenant and its agents, employees
and invitees, shall have the right to use, in common with all others granted
such rights by Landlord, in a proper and lawful manner, the common sidewalks and
outdoor areas on the land underlying the Building (the "Land"), the common
entranceways, lobbies and elevators furnishing access to the Demised Premises,
and (if the Demised Premises includes less than a full floor) the common
lobbies, hallways and toilet rooms on the floor on which the Demised Premises is
located. Such use shall be subject to the terms of this Lease and to such
reasonable rules, regulations, limitations and requirements as Landlord may from
time to time prescribe with respect thereto.
1.3. Rentable Square Feet. Tenant understands, acknowledges
and agrees (i) that the amount of rentable square feet set forth in Paragraph
1.1 above and 4.1 (iii) and 4.1 (ix) below is calculated based on certain
assumptions, and (ii) that such amount of rentable square feet is hereby
accepted by Tenant for all purposes of this Lease, including, without
limitation, for purposes of determining minimum rent, Tenant's Share of
applicable items of Taxes and Operating Expenses, Tenant's construction
allowance, if any, and other items which are based upon the computation of
square footage.
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2. Term; Commencement.
2.1. Duration. The term of this Lease shall commence (the
"Commencement Date") on April 15, 2000; or, if Landlord is responsible as
hereinafter provided for the completion of work in the Demised Premises and for
the completion of Tenant's fit-out work and other leasehold improvements
therein, then the Commencement Date shall be the earlier of the following: (i)
the later of (x) April 15, 2000, or (y) the date of "Substantial Completion", as
defined below, of the Demised Premises, or (ii) the date on which Tenant shall
take possession of the Demised Premises or any part thereof, or (iii) the date
on which Tenant could have taken possession of the Demised Premises had Tenant
not delayed in its obligations to furnish Landlord plans and other drawings
pursuant to the requirements of Exhibit "F" attached hereto or otherwise caused
a delay in the Substantial Completion of the Demised Premises. Unless extended
or sooner terminated as herein provided, the term shall continue until, and
shall expire on June 29, 2005.
2.2. Substantial Completion. The term "Substantial Completion"
shall mean that state of completion of the Demised Premises which will, except
for any improvements or work to be performed by Tenant, allow Tenant to utilize
the Demised Premises for their intended purposes (including the availability of
required utility services) without material interference to the customary
business activities of Tenant by reason of the completion of Landlord's work,
all as more fully described in Paragraph 17 below and Exhibit "F" attached
hereto. The Demised Premises shall be deemed substantially complete even though
minor or insubstantial details of construction, mechanical adjustment or
decoration remain to be performed, the noncompletion of which does not
materially interfere with Tenant's use of the Demised Premises or the conduct of
its business therein.
2.3. Confirmation. When the Commencement Date of the term of
this Lease is established, Landlord and Tenant shall promptly execute and
acknowledge a Confirmation of Lease Term, in the form set forth in Exhibit "C"
hereto, containing the information set forth in Exhibit "C" and acknowledging
the Commencement Date and expiration date of the term hereof.
2.4. Acceptance of Work. On the Commencement Date of the term
of this Lease, it shall be presumed that all work theretofore performed by or on
behalf of Landlord was satisfactorily performed in accordance with, and meeting
the requirements of, this Lease. The foregoing presumption shall not apply,
however, (i) to required work not actually completed by Landlord and identified
and described in a written punch-list to be jointly prepared and initialed by
Landlord and Tenant at or about the date on which Tenant shall occupy the
Demised Premises; or (ii) to deficiencies or inadequacies in the work which
Tenant brings to Landlord's attention in writing, with specificity, on or before
the Commencement Date or within ten (10) business days thereafter (and all of
the work so identified and described on the punch-list or as timely brought to
Landlord's attention as aforesaid which is Landlord's responsibility shall be
completed by Landlord with reasonable speed and diligence).
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3. Minimum Rent; Increases in Minimum Rent; Security Deposit.
3.1. Amount and Payment. Minimum rent for the Demised Premises
shall accrue during the term as follows:
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<CAPTION>
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Lease Period Annual Rent per Annual Minimum Monthly Minimum
Rentable Square Foot Rent Rent
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<S> <C> <C> <C>
5/15/00 - 4/30/01 $26.50 $123,463.50 $10,288.63
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5/1/01 - 4/30/02 $27.00 $125,793.00 $10,482.75
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5/1/02 - 4/30/03 $27.50 $128,122.56 $10,676.88
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5/1/03 - 4/30/04 $28.00 $130,452.00 $10,871.00
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5/1/04 - 6/29/05 $28.50 $132,781.56 $11,065.13
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</TABLE>
Minimum rent shall be payable during the term hereof, in advance, in the monthly
installments as set forth above, the first installment to be payable upon the
execution of this Lease and subsequent installments to be payable on the first
day of each successive month of the term hereof following the first month of
such term.
3.2. Partial Month. If the term of this Lease begins on a
day other than the first day of a month, rent from such day until the first day
of the following month shall be prorated (at the rate of one-thirtieth (1/30) of
the fixed monthly rental for each day) and shall be payable, in arrears, on the
first day of the first full calendar month of the term hereof (and, in such
event, the installment of rent paid at execution hereof shall be applied to the
rent due for the first full calendar month of the term hereof).
3.3. Address For Payment. All rent and other sums due to
Landlord hereunder shall be payable to OLS Office Partners, L.P., c/o The
Rubenstein Company, 4100 One Commerce Square, 2005 Market Street, Philadelphia,
Pennsylvania 19103, or to such other party or at such other address as Landlord
may designate, from time to time, by written notice to Tenant.
3.4. Non-Waiver of Rights. If Landlord, at any time or
times, shall accept rent or any other sum due to it hereunder after the same
shall become due and payable, such acceptance shall not excuse delay upon
subsequent occasions, or constitute, or be construed as, a waiver of any of
Landlord's rights hereunder.
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3.5. Additional Sums Due; No Set-Off. All sums payable by
Tenant under this Lease, whether or not stated to be rent, minimum rent or
additional rent, shall be collectible by Landlord as rent, and upon default in
payment thereof Landlord shall have the same rights and remedies as for failure
to pay rent (without prejudice to any other right or remedy available therefor).
All minimum rent, additional rent and other sums payable by Tenant under this
Lease shall be paid, when due, without demand, offset, abatement, diminution or
reduction. Additional rent shall include all sums which may become due by reason
of Tenant's failure to comply with any of the terms, conditions and covenants of
the Lease to be kept and observed by Tenant and any and all damages, costs and
expenses (including without limitation thereto reasonable attorney fees) which
Landlord may suffer or incur by reason of any default of Tenant.
3.6. Personal Property and Other Taxes. As additional rent
and to the extent not included in Taxes, Tenant shall pay monthly or otherwise
when due, whether collected by Landlord or collected directly by the
governmental agency assessing the same, any taxes imposed or calculated on
Tenant's rent or with respect to Tenant's use or occupancy of the Demised
Premises or Tenant's business or right to do business in the Demised Premises,
including, without limitation, a gross receipts tax or sales tax on rents or a
business privilege tax or use or occupancy tax, whether such tax exists at the
date of this Lease or is adopted hereafter during the term of this Lease or
during any renewal or extension thereof; but nothing herein shall require Tenant
to pay any income, estate, inheritance or franchise tax imposed upon Landlord.
Without limiting the foregoing, Tenant will pay promptly when due and in any
event not later than fifteen (15) days after receipt of a bill (whether such
bill be submitted by Landlord, the City of Philadelphia or otherwise) all City
of Philadelphia or Philadelphia School District Use and Occupancy Tax imposed
upon the use and occupancy of the Demised Premises. In addition to the
foregoing, Tenant shall be responsible to pay when due all taxes imposed upon
all personal property of Tenant.
3.7. Security Deposit. As additional security for the full
and prompt performance by Tenant of the terms and covenants of this Lease,
Tenant shall deliver to Landlord, together with Tenant's execution of this
Lease, an irrevocable negotiable letter of credit (an "LC"), issued by and drawn
on a bank, trust company or nationally recognized brokerage house reasonably
approved by Landlord, in form and content reasonably acceptable to Landlord, for
the benefit of Landlord, in the sum of Eighty Thousand and 00/100 Dollars
($80,000.00) (the "Security Deposit"). Such LC shall be for one (1) year and
renewed by Tenant each year of the term of the Lease (or, to the extent Tenant
is able to acquire an LC with a multiple year term and a reducing face amount,
Tenant may satisfy its obligation hereunder with an LC having a multiple year
term) (a renewed or subsequent multiple year LC is hereinafter defined as a
"Substitute LC"). Provided that no Event of Default (or event which, with the
passage of time, the giving of notice or both would constitute an Event of
Default) exists, each Substitute LC offered in replacement of the prior year's
LC shall have a reduced face amount of : (i) Forty Thousand Dollars ($40,000) on
the earlier to occur of the following: (x) Tenant submits to Landlord proper
documentation (in form and substance satisfactory to Landlord) that Tenant has
raised an additional Ten Million Dollars ($10,000,000) in capital or (y) the
first (1st) anniversary of the Commencement Date; and (ii) Twenty Thousand
Dollars ($20,000) on the second (2nd) anniversary of the Commencement Date.
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<PAGE>
Accordingly, during the entire term of the Lease there shall be an LC
in place for the hereinabove agreed amounts and, thirty (30) days after the
expiration of the term of the Lease or in the event of a holdover, the
expiration of the holdover period, the Security Deposit and LC requirement shall
expire. Except as set forth above with respect to the reduction in the face
amount of the LC, each Substitute LC shall satisfy the requirements for the
initial LC and shall be delivered to Landlord thirty (30) days before the
expiration of the current LC. Tenant's failure to present the Substitute LC as
required by and on or before the date required in the immediately preceding
sentence shall constitute an Event of Default (as hereinafter defined) under
this Lease and Landlord shall be entitled, without further notice, to present
the existing LC for payment. In the event the LC is presented for payment, which
is permissible only upon the occurrence of an Event of Default hereunder,
Landlord shall hold the amount of money received upon presentment as security
for this Lease in a separate escrow account which shall not constitute rent for
any month (unless so applied by Landlord on account of Tenant's default). If the
LC has been converted into a cash Security Deposit, Tenant shall, upon demand,
restore any portion of the Security Deposit which may be applied by Landlord to
the cure of any default by Tenant under this Lease. Notwithstanding the
foregoing provisions of this paragraph, to the extent that Landlord has not
applied any portion of the Security Deposit on account of a default under this
Lease, the remaining Security Deposit (after Tenant has made all payments to
Landlord pursuant to the provisions of this Lease) shall be returned (without
interest) to Tenant promptly after the expiration of this Lease and the full
performance of Tenant hereunder. Until returned to Tenant after the expiration
of the Lease and the full performance of Tenant hereunder (including, without
limitation, any payment due by Tenant as a result of a reconciliation of
Tenant's additional rent obligations), the Security Deposit shall remain the
property of Landlord. Furthermore, Tenant's failure to provide a Substitute LC
from an Issuer satisfactory to Landlord within fifteen (15) business days after
an Insolvency Event (as defined below) involving the Issuer of the then-current
LC shall constitute an Event of Default and Landlord shall be entitled, without
notice, to present the existing LC for payment. For purposes hereof, the term
"Insolvency Event" shall mean: (i) the insolvency, under either the bankruptcy
or equity definition, of an Issuer; or (ii) the commencement of any liquidation,
dissolution or similar proceeding by or against an Issuer or the commencement of
any case by or against an Issuer under any insolvency, bankruptcy, creditor
adjustment, debtor rehabilitation or similar laws, state or federal, or the
determination by an Issuer to request relief under any insolvency, bankruptcy,
creditor adjustment, debtor rehabilitation or similar proceeding, state or
federal, including, without limitation, the consent by Issuer to the appointment
of or taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequester or similar official for it or for any of its property or assets.
4. Increases in Taxes, Operating Costs.
4.1. Definitions. As used in this Paragraph 4, the following
terms shall be defined as hereinafter set forth:
-5-
<PAGE>
(i) "Taxes" shall mean all Federal, state, county,
local or municipal taxes, fees, assessments, or other impositions of whatever
kind, general or special, ordinary or extraordinary, foreseen or unforeseen,
imposed upon the Building or the Land or with respect to the ownership of the
Building or the Land or to any existing or future improvements thereto or
thereon, all of the foregoing as allocable and attributable to each given
calendar year which occurs during the term of this Lease (and any renewals and
extensions thereof). Taxes shall include, without limitation, real estate taxes,
any assessment imposed by any public or private entity by reason of the Building
being located in a special services district or similar designation or any other
tax based upon the receipt of rent, including gross receipts or sales taxes
applicable to the receipt of rent. Notwithstanding the foregoing, there shall be
excluded from Taxes all excess profit taxes, franchise taxes, gift taxes,
capital stock taxes, inheritance and succession taxes, estate taxes, federal and
state income taxes, and other taxes to the extent applicable to Landlord's
general or net income (as opposed to rents, receipts or income attributable to
operations at the Building). If, due to a future change in the method of
taxation, any franchise, income, profit or other tax, however designated, shall
be levied or imposed in addition to or in substitution, in whole or in part, for
any tax which would otherwise be included within the definition of Taxes, such
other tax shall be deemed to be included within Taxes as defined herein. Taxes
also shall include amounts paid to anyone engaged by Landlord to contest the
amount or rate of taxes, provided that the amount so paid does not exceed the
savings procured. Tenant acknowledges that the exclusive right to protest,
contest or appeal Taxes shall be in Landlord's sole and absolute discretion and
Tenant hereby waives any or all rights now or hereafter conferred upon it by law
to independently contest or appeal any Taxes. In no event shall Taxes for any
year be deemed to be less than the Base Taxes for purposes of calculating
Tenant's Share of Taxes.
(ii) "Base Taxes" shall mean the Taxes (as defined
above) allocable and attributable to calendar year 2000. The Base Taxes shall be
adjusted for the calendar year above stated to exclude extraordinary items of
Taxes and costs incurred in such calendar year.
(iii) "Tenant's Tax Percentage" shall be 8,038\10,000
percent (0.8038%). This is equal to the ratio of the rentable area of the
Demised Premises, as set forth above, to the total rentable area of office space
plus the total rentable area of retail/commercial space in the Building (not
including, however, basement or storage areas on non-office floors) which is
579,594 rentable square feet. Tenant acknowledges that the "rentable area of the
Demised Premises" under the Lease includes the usable area, without deduction
for columns or projections, multiplied by a load or conversion factor, to
reflect a share of certain areas, which may include lobbies, corridors,
mechanical, utility, janitorial, boiler and service rooms and closets, restrooms
and other public common and service areas. Except as provided expressly to the
contrary herein, the "rentable area of the Building" shall include all rentable
area of space leased or available for lease at the Building, which Landlord
shall have the right to redetermine from time to time to reflect
reconfigurations, additions or modifications to the Building.
(iv) "Tenant's Share of Taxes" shall mean with
respect to any calendar year, the product of (A) Tenant's Tax Percentage,
multiplied by (B) the amount, if any, by which the total Taxes for such calendar
year exceeds the Base Taxes.
(v) "Tenant's Estimated Share of Taxes" shall mean
with respect to any calendar year, the product of (A) Tenant's Tax Percentage,
multiplied by (B) the amount, if any, by which Landlord's good faith estimate of
Taxes for such calendar year exceed the Base Taxes.
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<PAGE>
(vi) (1) "Operating Expenses" shall mean Landlord's
actual out-of-pocket expenses, adjusted as set forth herein and as allocable and
attributable to each given calendar year which occurs during the term of this
Lease (and any renewals and extensions thereof), in respect of the security,
operation, maintenance, cleaning, repair, replacement (of component parts) and
management of the Building and Land (after deducting any reimbursement,
discount, credit, reduction or other allowance received by Landlord) and shall
include, without limitation: (A) wages and salaries (and taxes and insurance
imposed upon employers with respect to such wages and salaries) and fringe
benefits paid to persons employed by Landlord to render services in the normal
ownership, security, operation, maintenance, cleaning, repair, replacement (of
component parts) and management of the Building and any security personnel for
the Building, excluding any overtime wages or salaries paid for providing extra
services for any specific tenants; (B) costs of independent contractors hired
for, and other costs in connection with the ownership, security, operation,
maintenance, cleaning, repair, replacement (of component parts) and management
of the Building and related facilities and amenities; (C) costs of materials,
supplies and equipment used in connection with the ownership, security,
operation, maintenance, cleaning, repair, replacement (of component parts) and
management of the Building and related facilities and amenities; (D) costs of
electricity, steam, water, sewer, fuel and other utilities used at the Building,
together with the cost of providing the services specified in Paragraph 5
hereof, to the extent such utilities and/or services are not separately
chargeable to an occupant of the Building; (E) cost of insurance for public and
general liability insurance and insurance relating to the Building, including
fire and extended coverage or "All-Risk" coverage, if available, and coverage
for elevator, boiler, sprinkler leakage, water damage, and property damage,
plate glass, personal property owned by Landlord, fixtures, and rent protection
(all with such coverages and in such amounts as Landlord may elect or be
required to carry), but excluding any charge for increased premiums due to acts
or omissions of other occupants of the Building because of extra risk which are
reimbursed to Landlord by such other occupants; (F) costs of tools, supplies and
services; (G) costs of "Essential Capital Improvements", as defined in and to
the extent permitted pursuant to Paragraph 4.1(vi)(3) below; (H) costs of
alterations and improvements to the Building or the Land made pursuant to any
Governmental Requirements (as defined in Paragraph 4.1(vii) below) which are not
capital in nature (except to the extent permitted by Paragraph 4.1(vi)(3)
below), and which are not the obligation of Tenant or any other occupant of the
Building; (I) legal and accounting fees and disbursements necessarily incurred
in connection with the ownership, security, operation, maintenance, cleaning,
repair, replacement (of component parts) and management of the Building and the
Land, and the preparation, determination and certification of bills for Taxes
and Operating Expenses pursuant to this and other leases at the Building; (J)
sales, use or excise taxes on supplies and services and on any of the other
items included in Operating Expenses; (K) costs of redecorating, repainting,
maintaining, repairing and replacing the common areas of the Building (including
seasonal decorations); (L) management fees payable to the managing agent for the
Building (provided, however, that if management fees are paid to any affiliate
of Landlord, then the amount thereof to be included in Operating Expenses shall
not exceed such amount as is customarily being charged for similar services
rendered by other owner/managers to comparable first-class Philadelphia office
buildings of similar size) plus and in addition to such management fee the fair
market rental value of the management office and any storage space utilized by
Landlord; (M) the cost of telephone service, postage, office supplies,
maintenance and repair of office equipment and similar costs related to the
ownership, security, operation, maintenance, cleaning, repair, replacement (of
component parts) and management of the Building's management and
superintendent's offices; (N) the cost of licenses, permits and similar fees and
charges related to operation, maintenance, repair and replacement (of component
parts) of the Building, other than any of the foregoing relating to tenant
improvements; and (O) without limiting any of the foregoing, any other expenses
or charges which, in accordance with sound accounting and management principles
generally accepted with respect to a first-class Philadelphia office building,
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would be construed as an operating expense, including, without limitation, any
and all sums for landscaping, ground and sidewalk maintenance, sanitation
control, extermination, cleaning, lighting, snow removal, fire protection, fire
safety, policing, and security systems. The term "Operating Expenses" shall not
include: (a) the cost of redecorating or special cleaning or similar services to
individual tenant spaces, not provided on a regular basis to other tenants of
the Building; (b) wages or salaries paid to executive personnel of Landlord not
providing full-time service at the Building; (c) the cost of any new item (not
replacement or upgrading of an existing item) which, by standard accounting
principles, should be capitalized (except as provided above or in Paragraph
4.1(vi)(3) below); (d) any charge for depreciation or interest paid or incurred
by Landlord; (e) leasing commissions, finders fees and all other leasing
expenses incurred in procuring tenants in the Building; (f) Taxes; (g) any costs
incurred in the ownership of the Building, as opposed to the operation and
maintenance of the Building, including Landlord's income taxes, excess profit
taxes, franchise taxes or similar taxes on Landlord's business; preparation of
income tax returns; corporation, partnership or other business form
organizational expenses; franchise taxes; filing fees; or other such expenses;
or any costs incurred in cleaning up any environment hazard or condition in
violation of any environmental law (except to the extent caused by Tenant); (h)
legal fees for the negotiation or enforcement of leases; (i) expenses in
connection with services or other benefits of a type which are not Building
standard but which are provided to another tenant or occupant; (j) any items to
the extent such items are required to be reimbursed to Landlord by Tenant (other
than through Tenant's additional rent), or by other tenants or occupants of the
Building or by third parties; (k) depreciation or amortization, except in the
form of a "sinking fund" for periodic replacement of carpeting and for periodic
repainting (both in common areas only); or interest paid on any mortgage, or
ground rents paid under land leases, except for payment of any triple-net
expenses required by such leases; (l) the cost of constructing tenant
improvements or installations for any tenant in the Building, including any
relocation costs; (m) brokerage commissions, origination fees, points, mortgage
recording taxes, title charges and other costs or fees incurred in connection
with any financing or refinancing of the Building; (n) attorneys' fees and
disbursements, incurred in connection with the leasing of space in the Building
(including without limitation the enforcement of any lease or the surrender,
termination or modification of any lease of space in the Building); (o)
advertising and promotional expenses, brochures with respect to the Building;
(p) cost of repairs or replacements occasioned by fire, windstorm or other
casualty, the costs of which are covered by insurance or reimbursed by
governmental authorities in eminent domain; (q) overhead and profit increment
paid to subsidiaries or affiliates of Landlord for services on or to the
Property, to the extent that the costs of such services exceed market-based
costs for such services rendered by unaffiliated persons or entities of similar
skill, competence and experience; (r) penalties, fines, legal expenses, or late
payment interest incurred by Landlord due to violation by Landlord, or
Landlord's agents, contractors or employees, of either the payment terms and
conditions of any lease or service contract covering space in the Building or
Landlord's obligations as owner of the Building (such as late payment penalties
and interest on real estate taxes, late payment of utility bills); (s) any
compensation paid to clerks, attendants or other persons in any commercial
concession operated by Landlord in the Building from which Landlord receives any
form of income whatsoever, whether or not Landlord actually makes a profit from
such concession; or (t) costs incurred in connection with correcting latent
defects in the Building, or in repairing or replacing Building equipment, where
such repair or replacement results from original defects in design, manufacture
or installation rather than from ordinary wear and tear or use. If Landlord is
not furnishing any particular work or service (the cost of which, if performed
by Landlord, would constitute an Operating Expense) to a tenant who has
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undertaken to perform such work or service in lieu of performance by Landlord,
Operating Expenses shall nevertheless be deemed to include the amount Landlord
would reasonably have incurred if Landlord had in fact performed the work or
service at its expense. The costs of electric consumption and water, sewer and
other utility services provided to the Demised Premises (including, without
limitation, for HVAC usage), to the extent not included as Operating Expenses of
the Building, shall be paid for by Tenant separately in accordance with
Paragraph 5 of this Lease.
(2) In determining Operating Expenses for any
year, if the Building was less than fully occupied at any time during such year,
Operating Expenses shall be deemed for such year to be an amount equal to the
like expenses which Landlord reasonably determines would normally be incurred
had the Building been fully occupied throughout such year. In no event shall
Operating Expenses for any year be deemed to be less than the Base Operating
Expenses for purposes of calculating Tenant's Share of Operating Expenses.
(3) In the event Landlord shall make a capital
expenditure for an "Essential Capital Improvement", as hereinafter defined in
this subsection (3), during any year, the annual amortization of such
expenditure (determined by dividing the amount of the expenditure by the useful
life of the improvement, but in no event longer than five years), plus any
reasonable interest or financing charges thereon (or, if such improvements are
funded from reserves, a reasonable sum imputed in lieu of such financing
charges), shall be deemed an Operating Expense for each year of such period. As
used herein, an "Essential Capital Improvement" means any of the following: (A)
a labor saving device, energy saving device or other installation, improvement,
upgrading or replacement which reduces Operating Expenses as referred to above,
whether or not voluntary or a Governmental Requirement; or (B) an installation,
improvement, alteration or removal of any improvements, including architectural
or communication barriers, which are made to the Building by reason of any
Governmental Requirement, whether or not such improvements are structural in
nature and whether or not such Governmental Requirement either existed or was
required of the Landlord on the date of execution of this Lease; or (C) an
installation or improvement which directly enhances the safety of occupants in
the Building generally, whether or not voluntary or a Governmental Requirement
(as, for example, but without limitation, for general safety, fire safety or
security).
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(vii) "Governmental Requirements" shall mean all
requirements under any federal, state or local statutes, rules, regulations,
ordinances, or other requirements of any duly constituted public authority
having jurisdiction over the Building (including, without limitation, the
Demised Premises) including, but not limited to, requirements under Title 14 of
The Philadelphia Code (building and zoning codes); Title 5 of The Philadelphia
Code (fire code); 42 U.S.C. Section 12101 et seq. (the "Americans with
Disabilities Act of 1990"); and the provisions of, and regulations promulgated
pursuant to, Pennsylvania Act 1988-166 governing accessibility by persons with
physical disabilities.
(viii) "Base Operating Expenses" shall mean the
Operating Expenses (as defined above) allocable and attributable to calendar
year 2000. The Base Operating Expenses shall be calculated as if the Building
was fully occupied throughout such year in accordance with Paragraph 4.1(vi)(2)
hereof, and such shall be adjusted for the calendar year above stated to reflect
average and reasonable allowances for on-going repairs and maintenance and to
exclude from the Base Operating Expenses extraordinary items of Operating
Expenses incurred in such calendar year, including but not limited to items
incurred pursuant to Paragraph 4.1(vi)(3) below.
(ix) "Tenant's Operating Expense Percentage"
shall be 8,173\10,000 percent (0.8173%). This is equal to the ratio of the
rentable area of the Demised Premises, as set forth above, to the total rentable
area of office space in the Building which is 570,037 rentable square feet and
which Landlord shall have the right to redetermine from time to time to reflect
reconfigurations, additions or modifications to the Building.
(x) "Tenant's Share of Operating Expenses" shall mean
with respect to any calendar year, the product of (A) Tenant's Operating Expense
Percentage, multiplied by (B) the amount, if any, by which the Operating
Expenses for such calendar year exceeds the Base Operating Expenses.
(xi) "Tenant's Estimated Share of Operating Expenses"
shall mean with respect to any calendar year, the product of (A) Tenant's
Operating Expense Percentage, multiplied by (B) the amount, if any, by which
Landlord's good faith estimate of Operating Expenses for such calendar year
exceed the Base Operating Expenses.
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4.2. Determination of Tenant's Share of Taxes.
(i) For and with respect to each calendar year which
occurs during the term of this Lease (and any renewals or extensions thereof)
there shall accrue and Tenant shall pay, as additional rent, Tenant's Share of
Taxes, appropriately prorated for any such partial calendar year occurring
within the term.
(ii) Payment of Tenant's Share of Taxes.
Taxes with respect to the Building are due
within the first few months of the beginning of each calendar year. Therefore,
Landlord shall collect Tenant's Share of Taxes (in the manner set forth below)
with respect to a particular calendar year, on a monthly basis, during the prior
calendar year. During each calendar year throughout the term of this Lease,
Landlord shall determine Tenant's Share of Estimated Taxes for the succeeding
calendar year based on the last received bill from the appropriate governmental
authority stating the amount of Taxes for the present calendar year (a "Tax
Bill"). For purposes of determining Tenant's Estimated Share of Taxes,
Landlord's good faith estimate of the Taxes for such succeeding calendar year
shall be the same as the actual Taxes for the prior calendar year as reflected
on such Tax Bill. As soon as reasonably practical after the receipt by Landlord
of a Tax Bill, Landlord shall furnish to Tenant a statement setting forth the
amount of Tenant's Estimated Share of Taxes in respect of the next succeeding
calendar year. Thereafter, on the first day of each month commencing with the
month next succeeding receipt by Tenant of Landlord's statement containing the
Estimated Share of Taxes and continuing thereafter (up to and including the
month in which Tenant shall commence to pay a different amount in respect of a
revised Estimated Share of Taxes for the succeeding year, based upon receipt by
Landlord of a new Tax Bill) Tenant shall pay to Landlord, on account of Tenant's
Share of Taxes, an amount equal to one-twelfth (1/12th) of Tenant's Estimated
Share of Taxes.
In addition, after receipt by Landlord of a
Tax Bill with respect to a particular calendar year, Landlord shall provide
Tenant with a statement ("Statement of Taxes") of the amount due to Landlord, or
to be credited to Tenant, as a final adjustment in respect of Tenant's Share of
Taxes for the period with respect to which the Taxes are then due (the "Final
Tax Adjustment") and which have been paid by Tenant during the prior twelve
month period. Such Statement of Taxes shall include: (A) the actual amount of
Taxes for the calendar year as reflected on the Tax Bill; (B) the Base Taxes;
(C) the Tenant's Tax Percentage; (D) Tenant's Share of Taxes; (E) Tenant's
Estimated Share of Taxes, as paid by Tenant during the immediately preceding
twelve month period; and (F) the Final Tax Adjustment, as set forth above.
Tenant shall pay Landlord, within thirty (30) days after receipt from Landlord
of the Statement of Taxes, the amount due from Tenant on account of the Final
Tax Adjustment. If the Final Tax Adjustment establishes that Tenant's Estimated
Share of Taxes exceed Tenant's Share of Taxes, then Landlord shall credit Tenant
with the amount thereof against the next payment of minimum rent due by Tenant
hereunder, except that if the Final Tax Adjustment occurs after the expiration
of this Lease and if an Event of Default has not occurred, Landlord shall refund
Tenant the amount of such payment in respect of the Final Tax Adjustment within
thirty (30) days after Landlord provides the Tax Statement for the final year of
the Lease.
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Notwithstanding the foregoing, for the
period of time from the Commencement Date to the end of the initial calendar
year occurring during the term of this Lease, Tenant shall pay each month an
amount equal to the pro rata share of Tenant's Estimated Share of Taxes for such
calendar year as if Tenant had been in occupancy for the full calendar year. For
example, if the Commencement Date is June 1, 20XX, Tenant shall pay each month
for the remaining six (6) months of 20XX, the full amount of Tenant's Estimated
Share of Taxes as if Tenant was in occupancy for the full year of 20XX.
Therefore, if Tenant's Estimated Share of Taxes for the entire 20XX calendar
year would have been $120, then Tenant shall pay $20 per month for the remaining
six (6) months of the 20XX calendar year. In addition, Tenant shall not be
required to pay any amount in respect of Taxes for the last calendar year of the
term of the Lease (except in connection with the reconciliation of actual Taxes
for the immediately preceding year against estimated payments made for such
year). The foregoing sentence respecting Tenant's Taxes for the final calendar
year of the term of this Lease shall be deferred if Tenant exercises any renewal
or extension options contained herein, or otherwise extends or renews the term
by written agreement with Landlord, in which case, such provision shall apply to
the final calendar year of the Lease as so extended by any such renewal or
extension.
(iii) Final Determinations. For purposes of this
Paragraph 4.2, any assessment or Taxes upon which Tenant's Share of Taxes is
based shall be deemed to be the amount initially assessed or billed, as the case
may be, until such time as an abatement, refund, rebate or increase, if any
(retroactive or otherwise), shall be finally determined to be due, and upon
receipt of any final bill or rebate (or other crediting) of the amount of such
final determination, Landlord shall promptly notify Tenant of the amount, if
any, due to Tenant or Landlord, as the case may be, as a result of the
adjustment, and appropriate payment to Landlord or Tenant, as the case may be,
shall thereafter promptly be made. Landlord shall have no obligation to Tenant
to contest, appeal or otherwise challenge any Taxes or assessment. In the event
of any reduction in Taxes by reason of legal or other action taken by Landlord
in contest thereof, there shall be added to and deemed a part of the Taxes in
question the amount of Landlord's legal and other costs and expenses in
obtaining such reduction (but not an amount in excess of the tax savings).
4.3. Determination of Tenant's Share of Operating Expenses.
(i) For and with respect to each calendar year during
the term of this Lease (and any renewals or extensions thereof) there shall
accrue and be paid, as additional rent, Tenant's Share of Operating Expenses,
appropriately prorated for any partial calendar year occurring within the term.
(ii) Payment of Tenant's Estimated Share of Operating
Expenses. Landlord shall furnish to Tenant, on or before December 31 of each
calendar year during the term hereof, a statement for the next succeeding
calendar year setting forth Tenant's Estimated Share of Operating Expenses. On
the first day of the new calendar year, Tenant shall pay to Landlord, on account
of Tenant's Share of Operating Expenses, an amount equal to one-twelfth (1/12)
of Tenant's Estimated Share of Operating Expenses; and on the first day of each
succeeding month, up to and including the time that Tenant shall receive a new
statement of Tenant's Estimated Share of Operating Expenses, Tenant shall pay to
Landlord, on account of Tenant's Estimated Share of Operating Expenses, an
amount equal to one-twelfth (1/12) of the then applicable Tenant's Estimated
Share of Operating Expenses.
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(iii) Expense Statement. Landlord shall furnish to
Tenant, on or before April 30 of each calendar year during the term hereof, a
statement (the "Expense Statement") prepared by Landlord or its agent or
accountants setting forth for the previous calendar year: (A) the Operating
Expenses as adjusted by paragraph 4.1 (vi) (2); (B) the Base Operating Expenses;
(C) Tenant's Percentage of Operating Expenses; (D) Tenant's Share of Operating
Expenses; (E) Tenant's Estimated Share of Operating Expenses which has been
paid, if any; and (E) a statement of the amount due to Landlord, or to be
credited to Tenant, as a final adjustment in respect of Tenant's Share of
Operating Expenses for the previous calendar year (the "Final Expense
Adjustment"). The Final Expense Adjustment shall be calculated by subtracting
Tenant's Estimated Share of Operating Expenses from the Tenant's Share of
Operating Expenses. On the first day of the first calendar month following
delivery of the Expense Statement to Tenant, Tenant shall pay to Landlord the
Final Expense Adjustment calculated as set forth in the Expense Statement. If
the Final Expense Adjustment establishes that Tenant's Estimated Share of
Operating Expenses exceed Tenant's Share of Operating Expenses, then Landlord
shall credit Tenant with the amount thereof against the next payment of minimum
rent due by Tenant hereunder, except that with respect to the last year of the
Lease, if an Event of Default has not occurred, Landlord shall refund Tenant the
amount of such payment in respect of the Final Expense Adjustment within thirty
(30) days after Landlord provides the Expense Statement for such final year of
the Lease. In no event, however, shall Tenant be entitled to receive a credit
greater than the payments made by Tenant as payments of the Estimated Share of
Operating Expenses for the calendar year to which the Final Expense Adjustment
relates.
4.4. Disputes. The information set forth on all statements
furnished to Tenant pursuant to this Paragraph 4, including each Statement of
Taxes, Expense Statement, and all documents relating to Estimated Share of
Operating Expenses, Final Expense Adjustment, Estimated Share of Taxes, Final
Tax Adjustment, and all supportive documentation and calculations, shall be
deemed approved by Tenant unless, within thirty (30) days after submission to
Tenant, Tenant shall notify Landlord in writing that it disputes the correctness
thereof, specifying in detail the basis for such assertion. Pending the
resolution of any dispute, however, Tenant shall continue to make payments in
accordance with the statement or information as furnished.
4.5. Right to Audit.
(i) The information set forth on all statements
furnished to Tenant pursuant to this Section 4, including each Expense Statement
and each Statement of Taxes, and all documents relating to Tenant's Share of
Taxes, Tenant's Share of Operating Expenses, and all supportive documentation
and calculations, shall be deemed approved by Tenant unless, within ninety (90)
days after submission to Tenant, Tenant shall notify Landlord in writing that
Tenant has decided to exercise Tenant's right to audit and contest Landlord's
Expense Statement or Statement of Taxes. Provided Tenant has continued to make
timely payments in accordance with all statements furnished to Tenant pursuant
to this Section 4, after such notice, and one (1) time per year only, Tenant
shall have the right to audit and contest Landlord's Expense Statement or
Statement of Taxes and to inspect those portions of Landlord's records with
respect to Building Operating Expenses and Taxes in the office of Landlord where
such records are kept, during normal business hours, upon ten (10) day's advance
written notice to Landlord.
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(ii) Promptly upon completion of any such audit by
Tenant's professionally qualified auditor ("Tenant's Consultant"), Tenant shall
deliver a copy of the audit to Landlord. If Tenant shall allege that the audit
reveals an overstatement in Landlord's determination of the amount of Operating
Expenses or Taxes for the calendar year in question, Tenant also shall deliver a
letter to Landlord setting forth Tenant's position ("Discrepancy Letter").
Pending the resolution of any dispute, Tenant shall continue to make payments in
accordance with the information contained in the applicable statement provided
to Tenant.
(iii) If Landlord does not agree with Tenant's
identification of a discrepancy, or if Landlord and Tenant cannot resolve the
discrepancy in Landlord's determination of the amount of the increase in
Operating Expenses or Taxes for the calendar year in question, then Tenant shall
notify Landlord within sixty (60) days after the audit is completed (but not
more than one hundred eighty (180) days after the statement was initially
furnished to Tenant) that Tenant has elected to resolve the discrepancy by the
dispute resolution procedure as hereinafter described. For purposes hereof, the
"dispute resolution procedure" shall be as follows: within ten (10) days after
Tenant has notified Landlord of its election to resolve the discrepancy by the
dispute resolution procedure, Landlord shall select a certified public
accountant or such other financial advisor as Landlord deems appropriate
("Landlord's Consultant") to review and evaluate the Discrepancy Letter. If
Landlord's Consultant agrees with the Discrepancy Letter, then Tenant shall
receive a refund which is to be taken by Tenant as a credit against the next
payment of minimum rent and additional rent due until such credit is exhausted
(or if the Lease expires prior to full reimbursement, Landlord shall reimburse
Tenant promptly thereafter). If Landlord's Consultant disagrees with the
Discrepancy Letter, then Landlord shall forward to Tenant a letter summarizing
the disagreement (the "Response Letter"). Upon receipt of the Response Letter,
Tenant shall have five (5) business days within which to either (A) accept the
contents of Response Letter, in which case, the determination of Landlord's
Consultant shall establish the deficiency, if any, or (B) not accept the
contents of the Response Letter, and request that the dispute be determined by
three (3) consultants, comprised of Tenant's Consultant, Landlord's Consultant,
and a third consultant (the "Independent Consultant") chosen by Tenant's
Consultant and Landlord's Consultant, who shall be a reputable certified public
accountant appropriately licensed and qualified to practice, who is experienced
in the valuation and management of commercial real estate in the area in which
the Building is located, and who has no significant business relationship with
either Landlord or Tenant. The panel of consultants shall set forth their
determination within thirty (30) days after appointment of the Independent
Consultant. If it is determined by the consultants named above that, with
respect to Operating Expenses or Taxes, a discrepancy exists such that Operating
Expenses or Taxes as stated on the applicable statement exceeds the
determination of the panel by an excess of seven percent (7%), then Landlord
shall bear the cost of the services of the panel of consultants, and if it is
determined by the consultants named above that a discrepancy exists which is
less than or equal to seven percent (7%), then Tenant shall bear the cost of the
services of the panel of consultants. Furthermore, if it is determined that
neither Operating Expenses nor Taxes, as stated on the applicable statement,
exceeds the determination of the panel by more than two percent (2%), then
Tenant shall, in addition to paying the cost of the consultants, pay all of
Landlord's other costs incurred or paid in connection with or arising out of
such audit. The determination and written report of the panel of consultants
shall be final and binding upon Landlord and Tenant.
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(iv) If (A) it is determined that there exists a
discrepancy, and (B) either (1) Landlord agrees that there exists a discrepancy,
or (2) it is determined by the consultants named above that a discrepancy
exists, then the applicable statement and any other relevant operating
statements shall be adjusted, and (a) in a case in which Landlord agrees that
there exists a discrepancy, or Operating Expenses or Taxes as stated on the
applicable statement exceeds the determination of the panel, then Tenant shall
receive a refund which is to be taken by Tenant as a credit against the next
payment of minimum rent and additional rent due until such credit is exhausted
(or if the Lease expires prior to full reimbursement, Landlord shall reimburse
Tenant promptly thereafter); or (b) in a case in which the determination of the
panel exceeds Operating Expenses or Taxes as stated on the applicable statement,
then Tenant shall immediately (and no later than ten (10) days after the date
the determination of the panel is received by Tenant) pay the deficiency to
Landlord.
4.6. Survival. Notwithstanding anything herein contained
to the contrary, Tenant understands and agrees that additional rent resulting
from increases of Operating Expenses described in this Paragraph 4 are
attributable to and owing for a specific twelve (12) month period, and are
generally determined in arrears. Accordingly, Tenant agrees that, at any time
following the expiration of the term of this Lease, or after default by Tenant
with respect to this Lease, Landlord may bill Tenant for (a) the entire amount
of accrued and uncollected additional rent attributable to increases in
Operating Expenses under Paragraph 4, and (b) any unpaid charges for usage,
services or other amounts with respect to any period during the term of this
Lease, and the amount of such bill shall be due and payable to Landlord within
ten (10) business days after rendering thereof.
5. Services. Landlord shall provide the following services (the
cost of which shall be included in Operating Expenses, except as provided
below):
5.1. HVAC, Steam and Electricity.
(i) Standard Central HVAC Services. Landlord shall
provide heat, ventilation and air-conditioning ("HVAC") for Building Standard
Consumption in the Demised Premises during Business Hours. "Building Standard
Consumption" shall mean a temperature required, in Landlord's reasonable
opinion, for comfortable office use of the Demised Premises when occupied by the
density of people for which the building standard system was designed with
occupants using Standard Office Equipment. "Standard Office Equipment" shall
mean all office equipment normally found in an office facility but shall
exclude, without limitation, "main frame" computer and communication systems,
telephone switches and conference or training rooms (or other items, uses or
requirements) which generate excess heat (due to energy consumption,
configuration, concentration, location or otherwise), or which require
Additional Electric Equipment, as hereinafter defined in Paragraph 5.1(vi)
below, or additional air conditioning service or systems. "Business Hours" shall
mean Monday through Friday from 8:00 a.m. to 6:00 p.m. and on Saturday from 8:00
a.m. to 1:00 p.m., except Holidays. "Holidays" shall mean New Year's Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving, Christmas, or any day
set aside to celebrate such holidays, or any other day observed as a holiday by
any union involved in providing HVAC services to the Building.
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(ii) After-Hours Central HVAC Services. Tenant shall
pay the cost of supplying the Demised Premises with heat, ventilation and air
conditioning during hours other than Business Hours at such rates as Landlord
shall specify from time to time to cover all of Landlord's estimated costs and
expenses in connection with supplying such service, including without limitation
the costs of labor, maintenance, equipment, electricity and other utilities, and
applicable sales or use taxes thereon, such amounts to be paid by Tenant within
twenty (20) days after submission by Landlord of a statement to Tenant setting
forth the amount due. An authorized representative (but in no event more than
two per Tenant) of Tenant shall provide written notice to, and obtain a dated
countersignature from, Landlord (or an on-site general or operations manager for
the Building) by 12:00 noon on the day such after-hours use is desired, except
if such use is desired for a weekend or Holiday, in which event Tenant shall
notify Landlord and obtain such countersignature no later than 12:00 noon on the
Friday or other non-Holiday day immediately preceding such weekend or Holiday.
(iii) Supplemental HVAC Equipment. If Tenant requires
air conditioning in addition to the Building Standard Consumption that is
provided by Landlord as set forth above (e.g., due to above-standard densities
of personnel or heat generating equipment, including, but not limited to,
computer, communications, or telephone switching equipment, whether due to
energy consumption, configuration, concentration, location or otherwise, or for
conference or training facilities, or for other similar or dissimilar items,
uses or requirements of Tenant), Tenant may, or upon Landlord's written request
shall, arrange for the installation of a separate air conditioning unit, subject
to Landlord's prior written approval and satisfaction of the other provisions
regarding Tenant improvements or alterations set forth in this Lease. Tenant
shall be responsible for the cost and installation of such unit for its intended
purpose, and for the maintenance, repair, replacement, operation and utilities
(including electricity, and, as applicable, gas, steam, water and sewer) of the
same and for any additional sub-meter needed to account for the electricity and
any other utilities utilized to operate such unit. If Landlord, in its sole
discretion, permits Tenant to attach a separate air-conditioning unit to the
cooling tower, Tenant shall pay for the condenser water made available to such
unit from the cooling tower (whether or not actually used) in connection with
any such supplemental air conditioning, at such rates as Landlord shall
establish from time to time, such amounts to be paid by Tenant within twenty
(20) days after submission by Landlord of a statement to Tenant setting forth
the amount due. The cost of supplying electricity for supplemental heat,
ventilation and air conditioning equipment for the Demised Premises may be
reflected in Tenant's electric bill as described in Paragraph 5.1(v) below.
(iv) HVAC System Inadequacy. Landlord shall not be
responsible for any failure or inadequacy of the Building's HVAC system if such
failure or inadequacy results from the occupancy of the Demised Premises by
persons in excess of the density anticipated or for which the system was
designed, or if Tenant uses the Demised Premises in a manner for which it was
not designed, or if Tenant installs or operates machines, appliances or
equipment (whether due to energy consumption, configuration, concentration,
location or otherwise), which exceed the maximum wattage per square foot
contemplated by, or generate more heat than anticipated in, the design of the
Building's HVAC system.
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(v) Electricity. Landlord shall provide electricity
(subject to payments by Tenant as described below) for building-standard
overhead fluorescent office lighting fixtures, and equipment and accessories
customary for offices which are plugged into standard outlets, where: (a) such
electricity does not exceed 4.0 watts per usable square foot of the Demised
Premises, (b) the systems and equipment are suitable, and the safe and lawful
capacity thereof is not exceeded, and (c) sufficient capacity remains at all
times for other existing and future tenants, as determined in Landlord's
reasonable discretion. Tenant shall pay for (i) all electricity consumed in the
Demised Premises (including electricity for outlets, general lighting, any
supplemental HVAC equipment as described in Paragraph 5.1(iii), any Additional
Electric Equipment as described in Paragraph 5.1(vi), any special lighting
equipment serving the Demised Premises), (ii) all electricity consumed by the
perimeter fan coil unit(s) serving the Demised Premises, and (iii) Tenant's
proportionate share of all electricity consumed in connection with the lighting
of any common area corridors, the elevator lobby and restrooms, on the floor(s)
of the Building on which the Demised Premises is located (as such proportionate
share is determined by Landlord in the exercise of prudent management practices
based upon the tenants on such floor(s)), as follows:
(A) Tenant shall pay such rates as Landlord
may establish from time to time, which shall not be less than the average rate
per KWH that Landlord pays, and which shall not be in excess of any applicable
rates chargeable by Law, or in excess of the general service rate or other such
rate that would apply to Tenant's consumption if charged by the utility or
municipality serving the Building or general area in which the Building is
located.
(B) For areas of the Demised Premises now or
hereafter separately-metered, Tenant shall pay for amounts of electricity based
on such meters, and any meter-reading charges incurred by Landlord, or which
Landlord may reasonably establish from time to time. For areas of the Demised
Premises not separately metered, Tenant shall pay for amounts of electricity
based on the reasonable estimates of Landlord's engineer, or at Landlord's
election, shall pay Landlord's cost for installing separate meters, and shall
thereafter pay based on such meters. In the alternative, for areas of the
Demised Premises not separately metered, but metered together with other space
in the Building, Landlord may from time to time elect to allocate the
electricity charges between the Demised Premises and such other space based on
the ratio of the rentable area of the Demised Premises and the rentable area of
such other space; provided, if such other space is not fully occupied during any
billing period, Landlord may make an adjustment in the foregoing computation
such that only the average rentable square footage of such other space actually
occupied during such billing period is used.
(C) All such charges shall be payable as
additional Rent within twenty (20) days after such billing. Landlord may
reasonably estimate Tenant's electricity charges in advance, on a monthly,
quarterly or other reasonable basis, and bill and reconcile such amounts
periodically (with Landlord to provide any necessary credit or refund and Tenant
to pay any additional amount due).
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(vi) Additional Electrical Equipment. Tenant will not
install or use electrically-operated equipment in excess of the design capacity
of the Demised Premises, and Tenant shall not install or operate in the Demised
Premises any electrically-operated equipment or machinery other than that
commonly used in a normal office operation without first obtaining the prior
written consent of the Landlord. Landlord may condition any consent required
under this Paragraph 5.1(vi) upon the installation of separate meters (and
transformers or electrical panels, and wiring) for such equipment or machinery
at Tenant's expense and the payment by Tenant of additional rent as compensation
for the additional consumption of electricity occasioned by the operation of
such additional equipment or machinery, at the rates and in the manner set forth
in Paragraph 5.1(v) above.
(vii) Bulbs, Tubes and Ballasts. Landlord shall
replace, within a reasonable time after requested by Tenant, light bulbs, tubes
and ballasts within the Demised Premises which are Building standard (the cost
of which replacement items, plus the actual or estimated labor cost for such
replacement, shall be paid by Tenant). At Landlord's option from time to time,
such undertaking of Landlord may include bulbs, tubes or ballasts for
non-Building standard lighting, high hats, or other specialty lighting of
Tenant, but Landlord shall in all events retain the option to require that
Tenant be solely responsible therefor.
(viii) Regulatory Compliance. The furnishing of the
foregoing HVAC and electricity services shall be subject to any statute,
ordinance, rule, regulation, resolution or recommendation for energy
conservation which may be promulgated by any governmental agency or organization
which Landlord shall be required to comply with or which Landlord determines in
good faith to comply with. Notwithstanding the foregoing to the contrary,
however, Landlord reserves the right in Landlord's sole discretion to designate
one (1) provider of electric and/or other utility services for the Building;
Tenant shall have no right to contract separately for electric or other utility
service, regardless of whether any laws or regulations, now existing or
hereafter adopted, may otherwise contemplate the same.
5.2. Water and Sewer. Furnish the Building with water for
drinking, lavatory, toilet and sanitary sewer purposes drawn through fixtures
installed by Landlord. In the event that water is supplied to the Demised
Premises, Landlord reserves the right by either estimates, submetering or other
measurement to determine whether Tenant uses excess water or sewer and, in such
case, the cost of usage of such excess services attributable to the Demised
Premises shall be paid for by Tenant pursuant to a statement furnished by
Landlord to Tenant setting forth the amount due as a result of such excess usage
attributable to the Demised Premises, and the total amount set forth in such
statement shall be due and payable by Tenant within twenty (20) days after
submission thereto by Landlord of such statement.
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5.3. Elevator; Access. Provide passenger elevator service
to the Demised Premises during all working days (Saturday, Sunday and Holidays
excepted) from 8:00 a.m. to 6:00 p.m., with one elevator in each elevator bank
subject to call at all other times. Tenant and its employees and agents shall
have access to the Demised Premises at all times, subject to compliance with
such security measures as shall be in effect for the Building. Elevator services
for freight shall be supplied in common with service to other tenants and for
other Building requirements at reasonable times during Business Hours for
routine deliveries in the ordinary course of Tenant's business. Unusual or
unusually large deliveries requiring use of the freight elevators shall be
scheduled in advance with Landlord so as not to interfere with the operations of
the Building or other tenants. Freight elevator service outside of Business
Hours shall be provided to Tenant upon reasonable written advance notice, at
charges equal to Landlord's estimated cost for providing such service from time
to time, which shall be payable by Tenant to Landlord not later than twenty (20)
days after Landlord's bill therefor.
5.4. Janitorial. Provide janitorial service to the Demised
Premises as specified on Exhibits "D" and "D-1" annexed hereto, subject to
change so long as janitorial service is consistent with prevailing standards for
comparable office buildings in the central business district of Philadelphia.
Upon notice to Landlord, any and all additional or specialized janitorial or
trash removal service desired by Tenant (i) shall be contracted for by Tenant
directly with Landlord's janitorial agent and the cost and payment thereof shall
be and remain the sole responsibility of Tenant, or (ii) at the option of
Landlord, shall be contracted for by Landlord and paid for by Tenant to Landlord
within twenty (20) days after the submission by Landlord of a statement to
Tenant setting forth the amount due. If Landlord shall from time to time
reasonably determine that the use of any cleaning service in the Demised
Premises, including without limitation, removal of refuse and rubbish from the
Demised Premises, is in an amount greater than usually attendant upon the use of
such Demised Premises as offices, the reasonable cost of such additional
cleaning services shall be paid by Tenant to Landlord as additional rent, on
demand. Tenant shall comply with any reasonable recycling plans or programs
established by Landlord from time to time.
5.5. Security. Tenant and Tenant's employees, as well as
other tenants of the Building, currently have access to the Building outside of
standard business hours by a security card monitoring system maintained in the
main lobby of the Building. Landlord makes no representation that the present or
any future system employed at the Building to monitor access to the Building
outside of standard business hours will prevent unauthorized access to the
Building or the Demised Premises, and Tenant acknowledges that any lobby
attendants provided by Landlord are present as a convenience for the tenants of
the Building, but cannot be responsible for preventing unauthorized or improper
behavior or access to the Building or to the Demised Premises. Accordingly,
Tenant agrees that Tenant shall be responsible for security of the Demised
Premises and the security and safety of Tenant's employees, invitees, officers,
directors, contractors, subcontractors and agents. In furtherance of the
foregoing, Landlord assumes no liability or responsibility for Tenant's personal
property whether such are located in the Demised Premises or elsewhere in the
Building. Tenant further acknowledges that Landlord may (but shall have no
obligation to) alter current security measures in the Building, and Tenant
agrees that it shall cooperate fully, and shall cause its employees and invitees
to cooperate fully, with any requests of Landlord in connection with the
implementation of any new security procedures or other arrangements. Tenant
agrees to cooperate in any reasonable safety or security program developed by
Landlord or required by Governmental Requirements.
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5.6. Repairs. Make (i) all structural repairs to the Building,
(ii) all repairs to exterior windows and glass and all repairs to the lobby and
other common areas of the Building, and (iii) all repairs which may be needed to
the mechanical, electrical and plumbing systems in the Demised Premises,
excluding repairs to (or replacement of) any non-building standard fixtures or
other improvements in the Demised Premises installed by Tenant or made by or at
the request of Tenant and requiring unusual or special maintenance. In the event
that any repair is required by reason of the negligence or abuse of Tenant or
its agents, employees, invitees or of any other person using the Demised
Premises with Tenant's consent, express or implied, Landlord may make such
repair and add the cost thereof to the first installment of rent which will
thereafter become due, unless Landlord shall have actually recovered such cost
through insurance proceeds.
5.7. Directory. Landlord shall maintain a backlit directory
(or other type of directory) of office tenants in the lobby area of the
Building, on which shall be listed the name of Tenant. In the event Landlord
permits Tenant to add more names to such directory (which Landlord may grant or
deny in its sole discretion), Tenant shall pay the actual cost of lobby
directory signage over an allowance of one (1) directory space per Tenant.
5.8. Overhead Fee. Notwithstanding anything to the contrary
contained in this Paragraph 5, Landlord reserves the right to impose a
reasonable administrative overhead charge whenever Landlord provides or
arranges, at Tenant's request, for additional or above standard services.
5.9. Limitation Regarding Services. It is understood that
Landlord does not warrant that any of the services referred to in this Paragraph
5 will be free from interruption from causes beyond the control of Landlord.
Landlord reserves the right, without any liability to Tenant, and without being
in breach of any covenant of this Lease, to interrupt or suspend service of any
of the heating, ventilating, air-conditioning, electric, sanitary, elevator or
other Building systems serving the Demised Premises, or the providing of any of
the other services required of Landlord under this Lease, whenever and for so
long as may be necessary by reason of accidents, emergencies, strikes or the
making of repairs or changes which Landlord is required by this Lease or by law
to make or in good faith deems advisable, or by reason of difficulty in securing
proper supplies of fuel, steam, water, electricity, labor or supplies, or by
reason of any other cause beyond Landlord's reasonable control, including
without limitation, mechanical failure and governmental restrictions on the use
of materials or the use of any of the Building systems. In each instance,
however, Landlord shall exercise commercially reasonable diligence to eliminate
the cause of interruption and to effect restoration of service, and shall give
Tenant reasonable notice, when practicable, of the commencement and anticipated
duration of such interruption. Tenant shall not be entitled to any diminution or
abatement of rent or other compensation nor shall this Lease or any of the
obligations of the Tenant be affected or reduced by reason of the interruption,
stoppage or suspension of any of the Building systems or services arising out of
the causes set forth in this Paragraph.
6. Care of Demised Premises. Tenant agrees, on behalf of itself, its
employees and agents, that during the term of this Lease, Tenant shall comply
with the covenants and conditions set forth in this Paragraph 6.
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6.1. Insurance and Governmental Requirements. At all times
during the term of this Lease and any extension or renewal hereof, Tenant, at
its cost, shall comply with, and shall promptly correct any violations of, (i)
all requirements of any insurance underwriters, or (ii) any Governmental
Requirements relating to Tenant's use and occupancy of the Demised Premises.
Tenant shall indemnify, defend and hold Landlord harmless from and against any
and all loss, damages, claims of third parties, cost of correction, expenses
(including attorney's fees and cost of suit or administrative proceedings) or
fines arising out of or in connection with Tenant's failure to comply with
Governmental Requirements. The provisions of this Paragraph 6.1 shall survive
the expiration or termination of this Lease.
6.2. Access. Tenant shall give Landlord, its agents and
employees, access to the Demised Premises at all reasonable times upon at least
twenty-four (24) hours written or oral notice, unless Tenant agrees otherwise,
and at any time in the case of an emergency, without charge or diminution of
rent, to enable Landlord (i) to examine the same and to make such repairs,
additions and alterations as Landlord may be permitted to make hereunder or as
Landlord may deem advisable for the preservation of the integrity, safety and
good order of the Building or any part thereof; and (ii) upon reasonable notice,
to show the Demised Premises to prospective mortgagees and purchasers and to
prospective tenants. If representatives of Tenant shall not be present on the
Demised Premises to permit entry upon the Demised Premises by Landlord or its
agents or employees, at any time when such entry by Landlord is necessary or
permitted hereunder, Landlord may enter the Demised Premises by means of a
master key (or, in the event of any emergency, forcibly) without any liability
whatsoever to Tenant and without such entry constituting an eviction of Tenant
or a termination of this Lease. Landlord shall not be liable by reason of any
injury to or interference with Tenant or Tenant's business arising from the
making of any repairs, alterations, additions or improvements in or to the
Demised Premises or the Building or to any appurtenance or any equipment
therein.
6.3. Condition. Tenant shall keep the Demised Premises and
all improvements, installations and systems therein in good order and condition
and repair all damage to the Demised Premises and replace all interior glass
broken by Tenant, its agents, employees or invitees, with glass of the same
quality as that broken, except for glass broken by fire and extended coverage
type risks, and Tenant shall commit no waste in the Demised Premises. If the
Tenant refuses or neglects to make such repairs, or fails to diligently
prosecute the same to completion, after written notice from Landlord of the need
therefor, Landlord may make such repairs at the expense of Tenant and such
expense shall be collectible as additional rent. Any such repairs and any labor
performed or materials furnished in, on or about the Demised Premises shall be
performed and furnished by Tenant in strict compliance with all applicable laws,
regulations, ordinances and requirements of all duly constituted authorities or
governmental bodies having jurisdiction over the Building, and any reasonable
regulations imposed by Landlord pertaining thereto. Without limitation of the
foregoing, Landlord shall have the right to designate any and all contractors
and suppliers to furnish materials and labor for such repairs.
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6.4. Surrender. Upon the termination of this Lease in any
manner whatsoever, Tenant shall remove Tenant's goods and effects and those of
any other person claiming under Tenant, and quit and deliver up the Demised
Premises to Landlord peaceably and quietly in as good order and condition as at
the inception of the term of this Lease or as the same hereafter may be improved
by Landlord or Tenant, reasonable use and wear thereof, damage from fire and
other insured casualty and repairs which are Landlord's obligation excepted.
Goods and effects not removed by Tenant at the termination of this Lease,
however terminated, shall be considered abandoned and at Landlord's option, be
conclusively deemed to have been conveyed by Tenant to Landlord as if by Bill of
Sale without payment by Landlord. Landlord may dispose of and/or store such
goods and effects not removed by Tenant, in Landlord's sole and absolute
discretion, the cost thereof to be charged to Tenant. Landlord shall not be
responsible for the value, preservation or safe keeping of any property which it
handles, stores or removes pursuant to this subparagraph. Upon the termination
of this Lease in any manner whatsoever, Tenant shall return to Landlord any and
all keys and security access cards affecting the Demised Premises and issued to
Tenant and Tenant shall provide Landlord with any combinations or safe keys with
respect to any secured areas within the Demised Premises.
6.5. Signs. Tenant shall not place signs on or about any
part of the Building, or on the outside of the Demised Premises or on the
windows or walls of the Demised Premises, except that Tenant may place a sign on
the exterior doors of the Demised Premises provided Landlord approves (which
approval shall not be unreasonably withheld) the type, lettering and text of
such sign.
6.6. Care; Insurance. Tenant shall not overload, damage or
deface the Demised Premises or do any act which might make void or voidable any
insurance on the Demised Premises or the Building or which may render an
increased or extra premium payable for insurance (and without prejudice to any
right or remedy of Landlord regarding this subparagraph, Landlord shall have the
right to collect from Tenant, upon demand, any such increase or extra premium).
6.7. System Changes. Tenant shall not install any
equipment of any kind or nature whatsoever which would or might necessitate any
changes, replacement or additions to the water, plumbing, heating, air
conditioning or the electrical systems servicing the Demised Premises or any
other portion of the Building; nor install any plumbing fixtures in the Demised
Premises; nor use in excess of normal office use any of the utilities, the
janitorial or trash removal services, or any other services or portions of the
Building without the prior written consent of the Landlord and, in the event
such consent is granted, the cost of any such installation, replacements,
changes, additions or excessive use shall be paid for by Tenant, in advance in
the case of any installations, replacements and additions, and promptly upon
being billed therefor in the case of charges for excessive use.
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6.8. Alterations; Additions. Tenant shall not make any
alteration of or addition to the Demised Premises without the prior written
approval of Landlord (except for work of a decorative nature). Such approval
shall not be unreasonably withheld for nonstructural interior alteration,
provided that (i) no Building systems, structure, or areas outside of the
Demised Premises are affected by such proposed alteration, and (ii) reasonably
detailed plans and specifications for construction of the work, including but
not limited to any and all alterations having any impact on or affecting any
electrical systems, plumbing, HVAC, sprinkler system and interior walls and
partitions, are furnished to Landlord in advance of commencement of any work.
All such alterations and additions, as well as all fixtures, equipment,
improvements and appurtenances installed in and affixed to the Demised Premises
on or after the inception of this Lease term (but excluding Tenant's trade
fixtures and modular furniture systems) shall, upon installation, become and
remain the property of Landlord. All such alterations and additions shall be
maintained by Tenant in the same manner and order as Tenant is required to
maintain the Demised Premises generally and, at Landlord's option, upon
termination of the term hereof (and as long as Landlord has so notified Tenant
at the time the approval for such alterations is given by Landlord), shall be
removed at Tenant's cost without damage to the Demised Premises upon surrender.
All alterations and additions by Tenant shall be performed in accordance with
the plans and specifications therefor submitted to and approved by Landlord, in
a good and workerlike manner and in conformity with all Governmental
Requirements. In addition, all such alterations and additions shall be performed
in strict compliance with the requirements governing work by Tenant's
contractors as set forth in Exhibit "F" hereto.
6.9. Mechanics' Liens. Tenant, within ten (10) days after
notice from Landlord, (i) shall discharge (by bonding or otherwise) any
mechanics' lien for material or labor claimed to have been furnished to the
Demised Premises on Tenant's behalf (except for work contracted for by
Landlord), (ii) shall deliver to Landlord satisfactory evidence thereof, and
(iii) shall indemnify and hold harmless Landlord from any loss incurred in
connection therewith.
6.10. Vending Machines. Tenant shall not install or
authorize the installation of any coin-operated vending machines within the
Demised Premises, except machines for the purpose of dispensing coffee, snack
foods and similar items to the employees and business visitors of Tenant for
consumption upon the Demised Premises, the installation and continued
maintenance and repair of which shall be at the sole cost and expense of Tenant.
6.11. Rules and Regulations. Tenant shall observe the rules
and regulations annexed hereto as Exhibit "E", as the same may from time to time
be amended by Landlord for the general safety, comfort and convenience of
Landlord, occupants and tenants of the Building.
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6.12. Environmental Compliance. Tenant shall not transport,
use, store, maintain, generate, manufacture, handle, dispose, release or
discharge any "Waste" (as defined below) upon or about the Building, or permit
Tenant's employees, agents, contractors, and other occupants of the Demised
Premises (during the term of the Lease) to engage in such activities upon or
about the Building or the Demised Premises. However, the foregoing provisions
shall not prohibit the transportation to and from, and use, storage, maintenance
and handling within, the Demised Premises of substances customarily used in
offices (or such other business or activity expressly permitted to be undertaken
in the Demised Premises pursuant to the terms of this Lease), provided: (a) such
substance shall be used and maintained only in such quantities as are reasonably
necessary for such permitted use of the Demised Premises, strictly in accordance
with applicable Governmental Requirements and the manufacturers' instructions
therefor, (b) such substances shall not be disposed of, released or discharged
in the Building, and shall be transported to and from the Demised Premises in
compliance with all applicable Governmental Requirements, and as Landlord shall
reasonably require, (c) if any applicable Governmental Requirement or Landlord's
trash removal contractor requires that any such substances be disposed of
separately from ordinary trash, Tenant shall make arrangements at Tenant's
expense for such disposal directly with a qualified and licensed disposal
company at a lawful disposal site (subject to scheduling and approval by
Landlord), and shall ensure that disposal occurs frequently enough to prevent
unnecessary storage of such substances in the Demised Premises, and (d) any
remaining such substances shall be completely, properly and lawfully removed
from the Building upon expiration or earlier termination of this Lease.
(i) Tenant shall promptly notify Landlord of: (a) any
enforcement, cleanup or other regulatory action taken or threatened by any
governmental or regulatory authority with respect to the presence of any Waste
on the Demised Premises or the migration thereof from or to the Building, (b)
any demands or claims made or threatened by any party against Tenant or the
Demised Premises relating to any loss or injury resulting from any Waste, (c)
any release, discharge or nonroutine, improper or unlawful disposal or
transportation of any Waste on or from the Demised Premises, and (d) any matters
where Tenant is required by any Governmental Requirement to give a notice to any
governmental or regulatory authority respecting any Waste on the Demised
Premises. Landlord shall have the right (but not the obligation) to join and
participate as a party in any legal proceedings or actions affecting the Demised
Premises initiated in connection with any environmental, health or safety
Governmental Requirement. At such times as Landlord may reasonably request,
Tenant shall provide Landlord with a written list identifying any Waste then
used, stored, or maintained upon the Demised Premises and the use and
approximate quantity of each such material. Tenant shall also furnish Landlord
with a copy of any material safety data sheet ("MSDS") issued by the
manufacturer therefor as well as any written information concerning the removal,
transportation and disposal of the same, and such other information as Landlord
may reasonably require or as may be required by Governmental Requirement. The
term "Waste" for purposes hereof shall mean any hazardous or radioactive
material, polychlorinated biphenyls, friable asbestos or other hazardous or
medical waste substances as defined by the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, or by any other federal, state or
local law, statute, rule, regulation or order (including any Governmental
Requirements) concerning environmental matters, or any matter which would
trigger any employee or community right-to-know requirements adopted by any such
body, or for which any such body has adopted any requirements for the
preparation or distribution of a MSDS.
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(ii) If any Waste is released, discharged or disposed
of by Tenant or any other occupant of the Demised Premises, or their employees,
agents or contractors, in or about the Building in violation of the foregoing
provisions, Tenant shall immediately, properly and in compliance with applicable
Governmental Requirements clean up and remove the Waste from the Building and
clean or replace any affected property at the Building (whether or not owned by
Landlord), at Tenant's expense. Such clean up and removal work shall be subject
to Landlord's prior written approval (except in emergencies), and shall include,
without limitation, any testing, investigation, and the preparation and
implementation of any remedial action plan required by any governmental body
having jurisdiction or reasonably required by Landlord. If Tenant shall fail to
comply with the provisions of this Paragraph within five (5) days after written
notice by Landlord, or such shorter time as may be required by any Governmental
Requirement or in order to minimize any hazard to any person or property,
Landlord may (but shall not be obligated to) arrange for such compliance
directly or as Tenant's agent through contractors or other parties selected by
Landlord, at Tenant's expense (without limiting Landlord's other remedies under
this Lease or applicable Governmental Requirement). If any Waste is released,
discharged or disposed of on or about the Building and such release, discharge,
or disposal is not caused by Tenant or other occupants of the Demised Premises
(during the term of the Lease), or their employees, agents or contractors, such
release, discharge or disposal shall be deemed casualty damage under Paragraph 8
to the extent that the Demised Premises or common areas serving the Demised
Premises are affected thereby; in such case, Landlord and Tenant shall have the
obligations and rights respecting such casualty damage provided under Paragraph
8.
(iii) In connection with the foregoing, Landlord
represents to Tenant that, to Landlord's knowledge, the Building and the Demised
Premises are in compliance with all applicable environmental laws existing, and
as interpreted, as of the date of Landlord's execution of this Lease.
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7. Subletting and Assigning.
7.1. General Restrictions. Tenant shall not assign this Lease
or sublet all or any portion of the Demised Premises (either a sublease or an
assignment hereinafter referred to as a "Transfer") without first obtaining
Landlord's prior written consent thereto, which shall not be unreasonably
withheld, conditioned or delayed. By way of example and without limitation, the
parties agree it shall be reasonable for Landlord to withhold consent: (1) if
the financial condition of the proposed transferee is not at least equal, in
Landlord's reasonable determination, to the financial condition (as of the date
of this Lease) of the Tenant named herein; (2) if the proposed use within the
Demised Premises conflicts with the use provision set forth herein or is
incompatible, inconsistent, or unacceptable with the character, use and image of
the Building or the tenancy at the Building in Landlord's reasonable opinion, or
conflicts with exclusive use rights granted to another tenant of the Building;
(3) if the business reputation and experience of the proposed transferee is not
sufficient, in Landlord's reasonable opinion, for it to operate a business of
the type and quality permitted under this Lease; (4) if the document creating
the Transfer is not reasonably acceptable to Landlord; (5) the nature of the
fixtures and improvements to be performed or installed are not consistent with
general office use and the terms of this Lease; (6) if the proposed transferee
is an existing tenant of Landlord (except if Landlord has no other available
space) or is currently negotiating or has negotiated within the prior twelve
(12) months with Landlord for other space in the Building; (7) if the proposed
user is a governmental or quasi-governmental agency; (8) if the proposed
transferee will be using or if Landlord has reasonable cause to believe that it
is likely to use Waste at the Demised Premises other than those types of Waste
normally used in general office operations in compliance with applicable
Governmental Requirements; (9) if Landlord has reasonable cause to believe that
the proposed transferee's assets, business or inventory would be subject to
seizure or forfeiture under any laws related to criminal or illegal activity; or
(10) if a proposed sublet involves more than twenty percent (20%) of the Demised
Premises (or, if such proposed sublet would result in more than twenty percent
(20%) of the Demised Premises, in the aggregate, being subject to one or more
subleases). If Landlord consents to a Transfer, such consent, if given, will not
release Tenant from its obligations hereunder and will not be deemed a consent
to any further Transfer. Tenant shall furnish to Landlord, in connection with
any request for such consent, reasonably detailed information as to the identity
and business history of the proposed assignee or subtenant, as well as the
proposed effective date of the Transfer and, prior to the execution thereof, a
complete set of the final documentation governing such Transfer, all of which
shall be satisfactory to Landlord in form and substance. If Landlord consents to
any such Transfer, the effectiveness thereof shall nevertheless be conditioned
on the following: (i) receipt by Landlord of a fully executed copy of the full
documentation governing the Transfer, in the form and substance approved by
Landlord, (ii) any sublessee shall acknowledge that its rights arise through and
are limited by the Lease, and shall agree to comply with the Lease (with such
exceptions as may be consented to by Landlord), and (iii) any assignee shall
assume in writing all obligations of Tenant hereunder from and after the
effective date of such Transfer. Tenant shall not advertise or otherwise
disseminate any information regarding the Building or the Demised Premises
(including, without limitation, rental rates or other terms upon which Tenant
intends to Transfer) to potential assignees and/or subtenants without in each
instance obtaining Landlord's prior written approval and consent to the specific
form and content of any such advertisement, statement, offering or other
information (including, without limitation, approval of rental rates and terms).
Landlord's acceptance of any name for listing on the Building Directory will not
be deemed, nor will it substitute for, Landlord's consent, as required by this
Lease, to any Transfer, or other occupancy of the Demised Premises. Tenant shall
not mortgage or encumber this Lease.
7.2. Definitions. For purposes hereof, a Transfer shall
include any direct or indirect transfer, in any single or related series of
transactions, of (i) fifty percent (50%) or more of the voting stock of a
corporate Tenant; (ii) fifty percent (50%) or more of the interests in profits
of a partnership or limited liability company Tenant; or (iii) effective voting
or managerial control of Tenant; provided, however, that the foregoing shall not
apply to a tenant a majority of whose ownership interests are publicly-traded on
a nationally-recognized exchange.
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7.3. Procedure for Approval of Transfer. If Tenant wishes to
request Landlord's consent to a Transfer, Tenant shall submit such request to
Landlord, in writing, together with reasonably detailed financial information
and information as to the identity and business information and business history
of the proposed transferee, as well as the proposed effective date of the
Transfer and the area or portion of the Demised Premises which Tenant wishes to
Transfer (the "Transfer Space"). If Landlord fails to respond or request
additional information from Tenant within thirty (30) days after receipt of
Tenant's proper request for approval, Tenant shall submit an additional request
to Landlord, setting forth the same information and further notifying Landlord
on such request, on a covering letter in all capital letters and bold-face type,
that Landlord's failure to respond or request additional information from Tenant
within an additional ten (10) business days shall be deemed an approval (such
notice is hereinafter referred to as an "Automatic Approval Notice"). If
Landlord fails to respond or request additional information from Tenant within
such additional ten (10) business days, such failure to so respond shall be
deemed a consent to the Transfer. If Landlord requests additional information,
Landlord shall respond within the later of (i) ten (10) business days after
receipt of all requested information, or (ii) the expiration of the thirty (30)
day period set forth above; and Landlord's failure to do so shall be deemed a
consent to the Transfer so long as such additional information shall include (on
a covering letter in all capital letters and in bold-face type) an Automatic
Approval Notice. If Landlord consents to any such Transfer, such consent shall
be given on Landlord's form of consent (which consent shall include, among other
things, an acknowledgment by the transferee that its rights arise through and
are limited by the Lease, that the transferee agrees to comply with the Lease
(with such exceptions as may be consented to by Landlord), and a written
acknowledgment by Tenant evidencing that Tenant is not released from its
obligations under this Lease), which consent document shall be executed by
Tenant and the transferee of Tenant. It shall nevertheless be a condition to the
deemed effectiveness thereof that Landlord be furnished with a fully executed
copy of the full documentation governing the Transfer, in the form and substance
approved by Landlord, and that Tenant shall pay Landlord's expenses in
connection with the proposed Transfer. It shall not be unreasonable for Landlord
to object to Transfer document provisions which, inter alia, attempt to make
Landlord a party to the Transfer document or impose any obligation on Landlord
to the subtenant.
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7.4. Recapture. Upon receipt of Tenant's request for consent
to a proposed Transfer, Landlord may elect to recapture the Transfer Space.
Landlord's election to recapture must be in writing and delivered to Tenant
within thirty (30) days of Landlord's receipt of Tenant's request for permission
to Transfer all or a portion of the Demised Premises. Landlord's recapture shall
be effective (the "Effective Date") on a date selected by Landlord, which date
shall be (i) on or before the date which is thirty (30) days after the proposed
effective date of the Transfer, as specifically set forth in Tenant's written
request to Landlord for consent to a proposed Transfer, or (ii) if Tenant's
written request to Landlord for consent to a proposed Transfer does not contain
a proposed effective date, then on or before the date which is thirty (30) days
after Landlord's election to recapture the Transfer Space; and with respect to
the Transfer Space, this Lease shall be terminated and Tenant shall be released
under this Lease, subject to any continuing liabilities or obligations of Tenant
which remain delinquent or uncured with respect to the period prior to the
Effective Date.
7.5. Conditions. In the event Landlord consents to a Transfer
of all or any portion of the Demised Premises, Landlord may condition its
consent, inter alia, on agreement by Tenant and its assignee and/or sublessee,
as the case may be, that fifty (50%) percent of any rental payable under such
Transfer arrangement which exceeds the amount of rental payable hereunder be
payable to Landlord (after deduction by Tenant for the reasonable and necessary
costs associated with such Transfer amortized over the remaining term of the
Lease) as consideration of the granting of such consent. Nothing herein shall,
however, be deemed to be a consent by Landlord of any Transfer or a waiver of
Landlord's right not to consent to any Transfer. Any purported Transfer not in
accordance with the terms hereof shall at Landlord's option, to be exercised at
any time after Landlord becomes aware of any such purported Transfer, be void,
and may at Landlord's option be treated as an event of default hereunder.
7.6. Special Conditions for Transfers to Affiliates of Tenant.
Notwithstanding anything to the contrary set forth above, Tenant shall be
permitted without Landlord's prior written consent, and subject to the terms of
this subparagraph 7.6, to Transfer all or a portion of the Demised Premises to
an "Affiliate" of Tenant. For purposes of this subparagraph, Affiliate shall
mean; (i) a corporation which owns fifty percent (50%) of the outstanding common
stock of Tenant, or (ii) a corporation which has fifty percent (50%) of its
common stock owned by Tenant, or (iii) a partnership which owns fifty percent
(50%) of the common stock of Tenant, or (iv) a partnership which has fifty
percent (50%) or more of its interest in partnership profits owned by Tenant, or
(v) an entity which is the surviving entity in a merger pursuant to state
corporation or partnership law with the Tenant. The effectiveness of such
Transfer to an Affiliate of Tenant shall nevertheless be conditioned on the
following: (a) Landlord receiving a fully executed copy of the full
documentation governing the Transfer, in the form and substance approved by
Landlord, and (b) such sublessee shall acknowledge that its rights arise through
and are limited by the Lease, and shall agree to comply with the Lease (with
such exceptions as may be consented to by Landlord), and (c) a written
acknowledgment by Tenant evidencing that Tenant is not released from its
obligations under this Lease.
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7.7. No Release. Notwithstanding any assignment of this Lease
or subletting of all or part of the Demised Premises, whether or not Landlord's
consent is required and/or obtained, the tenant specifically named in the
introductory paragraph of this Lease shall remain fully liable under all of the
terms and provisions of this Lease.
8. Fire or Other Casualty. In case of damage to the Demised Premises or
those portions of the Building providing access or essential services thereto,
by fire or other casualty, Landlord shall, at its expense, cause the damage to
be repaired to a condition as nearly as practicable to that existing prior to
the damage, with reasonable speed and diligence, subject to delays which may
arise by reason of adjustment of loss under insurance policies, Governmental
Regulations, and for delays beyond the control of Landlord, including a "force
majeure" (as defined below). Landlord shall not, however, be obligated to
repair, restore, or rebuild any of Tenant's property or any alterations or
additions made by Tenant. Landlord shall not be liable for any inconvenience or
annoyance to Tenant, or Tenant's visitors, or injury to Tenant's business
resulting in any way from such damage or the repair thereof except, to the
extent and for the time that the Demised Premises are thereby rendered
untenantable, the rent shall proportionately abate. In the event the damage
shall involve the Building generally and shall be so extensive that Landlord
shall decide, at its sole discretion, not to repair or rebuild the Building, or
if the casualty shall not be of a type insured against under standard fire
policies with extended type coverage, or if the holder of any mortgage, deed of
trust or similar security interest covering the Building shall not permit the
application of adequate insurance proceeds for repair or restoration, this Lease
shall, at the sole option of Landlord, exercisable by written notice to Tenant
given within sixty (60) days after Landlord is notified of the casualty and to
the extent thereof, be terminated as of a date specified in such notice (which
shall not be more than ninety [90] days thereafter), and the rent (taking into
account any abatement as aforesaid) shall be adjusted to the termination date
and Tenant shall thereupon promptly vacate the Demised Premises.
9. Regarding Insurance and Liability.
9.1. Damage in General. Tenant agrees that Landlord and
its Building manager and their respective partners, officers, employees and
agents shall not be liable to Tenant, and Tenant hereby releases such parties,
for any personal injury or damage to or loss of personal property in the Demised
Premises from any cause whatsoever unless such damage, loss or injury is the
result of the gross negligence or willful misconduct of Landlord, its Building
manager, or their partners, officers, employees or agents, and Landlord and its
Building manager and their partners, officers or employees shall not be liable
to Tenant for any such damage or loss whether or not the result of their gross
negligence or willful misconduct to the extent Tenant is compensated therefor by
Tenant's insurance or would have been compensated therefor under commonly
available commercial policies, and Landlord shall in no event be liable to
Tenant for any consequential damages.
9.2. Indemnity.
(a) Tenant shall defend, indemnify and save harmless
Landlord and its agents and employees against and from all liabilities,
obligations, damages, penalties, claims, costs, charges and expenses, including
reasonable attorneys' fees, which may be imposed upon or incurred by or asserted
against Landlord and/or its agents or employees by reason of any of the
following which shall occur during the term of this Lease, or during any period
of time prior to the Commencement Date hereof or after the expiration date
hereof when Tenant may have been given access to or possession of all or any
part of the Demised Premises:
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(i) any work or act done in, on or about the Demised
Premises or any part thereof at the direction of Tenant, its agents,
contractors, subcontractors, servants, employees, licensees or invitees, except
if such work or act is done or performed by Landlord or its agents or employees;
(ii) any negligence or other wrongful act or omission
on the part of Tenant or any of its agents, contractors, subcontractors,
servants, employees, subtenants, licensees or invitees; and
(iii) any accident, injury or damage to any person or
property occurring in, on or about the Demised Premises or any part thereof,
unless caused by the gross negligence or willful misconduct of Landlord, its
employees or agents;
(b) Landlord shall defend, indemnify and save harmless Tenant
and its agents and employees against and from all liabilities, obligations,
damages, penalties, claims, costs, charges and expenses, including reasonable
attorneys' fees, which may be imposed upon or incurred by or asserted against
Tenant and/or its agents or employees by reason of any of the following which
shall occur during the term of this Lease:
(i) any negligence or other intentional wrongful act
on the part of Landlord or any of its agents, contractors, subcontractors,
servants, employees, subtenants, licensees or invitees; and
(ii) any accident, injury or damage to any person or
property occurring in an area in the Building under the exclusive custody and
control of Landlord, unless caused by the gross negligence or willful misconduct
of Tenant, its employees or agents;
provided, however, that Landlord shall not be liable for and shall not indemnify
and protect Tenant with respect to any losses associated with Tenant's lost
business opportunities, lost profits, business losses or any consequential
damages. The foregoing indemnity by Landlord shall only apply to liabilities,
obligations, damages, penalties, claims, costs, charges and expenses, including
reasonable attorneys' fees, to the extent the same are not covered by the
insurance Tenant is required to carry hereunder (and, if Tenant fails in any
respect to secure and maintain the insurance required hereunder, only to the
extent the same would not have been covered if Tenant had secured and maintained
the insurance required hereunder).
9.3. Tenant's Insurance. At all times during the term
hereof, Tenant shall maintain in full force and effect with respect to the
Demised Premises and Tenant's use thereof, comprehensive public liability
insurance, naming Landlord and Landlord's agent (and such other parties as
Landlord may request) as additional insureds, covering injury to persons in
amounts at least equal to $2,000,000.00 per occurrence and $2,000,000.00 general
aggregate. 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 satisfactory to Landlord. Tenant shall lodge with Landlord duplicate
originals or certificates of such insurance, in a form acceptable to Landlord,
at or prior to the commencement date of the term hereof, together with evidence
of paid-up premiums, and shall lodge with Landlord renewals thereof at least
fifteen (15) days prior to expiration. In addition to the foregoing, Tenant
shall also be responsible, at Tenant's own cost, to keep and maintain (i)
insurance in respect of and covering Tenant's own furniture, furnishings,
equipment and other personal property, all insured for the replacement cost
thereof, against all risks and hazards, including but not limited to sprinkler
and leakage damage, and theft, and (ii) workers' compensation insurance at the
appropriate statutory limits, with respect to and covering all employees of
Tenant. Tenant shall also carry, at Tenant's own cost and expense, such other
insurance, in amounts and for coverages and on such other terms as Landlord may
from time to time deem commercially reasonable and appropriate. Tenant assumes
all risk of loss of any or all of its personal property.
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9.4. Landlord's Insurance. Throughout the term of this Lease,
Landlord will insure the Building (excluding any property with respect to which
Tenant is obligated to insure pursuant to Paragraph 9.3 above) with, what is
referred to as, "All Risk" Insurance covering against damage by fire and
standard extended coverage perils and public liability insurance, and shall
carry rent insurance, and boiler and machinery insurance coverage; provided,
however, that the foregoing insurances shall only be required hereunder to the
extent such insurance is available at reasonable rates. All insurance coverage
required by Landlord shall be in such reasonable amounts and with such
reasonable deductibles as are required by any mortgagee or ground lessor (if
any), or if none, as are determined by Landlord in its good-faith discretion,
taking into consideration the insurance and deductibles as would be carried by a
prudent owner of a similar building in the area of the Building. Landlord may,
but shall not be obligated or required to, carry any excess or other forms of
insurance relating to the Building as it or the mortgagee or ground lessor (if
any) of Landlord may require or reasonably determine are available. All
insurance carried by Landlord relating to the Building or common areas
(including, without limitation, insurance in excess of that required hereunder)
shall be included as an Operating Expense pursuant to Paragraph 4.1 of this
Lease. Notwithstanding its inclusion as an Operating Expense or any contribution
by Tenant to the cost of insurance premiums by Tenant as provided herein, Tenant
acknowledges that it has no right to receive any proceeds from any such
insurance policies carried by Landlord. Tenant further acknowledges that the
exculpatory provisions of this Lease as set forth in Paragraph 9 and the
provision regarding Tenant's insurance are designed to insure adequate coverage
as to Tenant's property and business without regard to fault and to avoid
Landlord's obtaining similar coverage for said loss for its negligence or that
of its agents, servants or employees which could result in additional costs
includable as part of Operating Expenses which are payable by Tenant. Landlord
will not be required to carry insurance of any kind on Tenant's personal
property, furniture or improvements of Tenant under this Lease and it shall be
Tenant's responsibility (at Tenant's sole cost and expense) to repair any damage
thereto, including such items as were purchased or constructed from the
Construction Allowance. Landlord's insurance may be maintained through blanket
policies of insurance with Landlord and Landlord's affiliates and through
self-insurance programs of Landlord.
9.5. Waiver of Subrogation. Each party hereto hereby waives
any and every claim which arises or which may arise in its favor and against the
other party hereto during the term of this Lease or any extension or renewal
thereof for any and all loss of, or damage to, any of its property located
within or upon or constituting a part of the Building, to the extent that such
loss or damage is recovered under an insurance policy or policies and to the
extent such policy or policies contain provisions permitting such waiver of
claims. Each party shall cause its insurers to issue policies containing such
provisions.
9.6. Limitation on Personal Liability. Anything in this Lease,
either expressed or implied, to the contrary notwithstanding, Tenant
acknowledges and agrees that each of the covenants, undertakings and agreements
herein made on the part of Landlord, while in form purporting to be covenants,
undertakings and agreements of Landlord, are, nevertheless, made and intended
not as personal covenants, undertakings and agreements of Landlord, or for the
purpose of binding Landlord personally or the assets of Landlord, except
Landlord's interest in the Building; and that no personal liability or personal
responsibility is assumed by, nor shall at any time be asserted or enforceable
against Landlord, any partner of Landlord, any parent or subsidiary of Landlord,
or any of their respective heirs, personal representatives, successors and
assigns, or officers or employees on account of this Lease or on account of any
covenant, undertaking or agreement of Landlord in this Lease contained, all such
personal liability and personal responsibility, if any, being expressly waived
and released by Tenant.
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9.7. Successors in Interest to Landlord, Mortgagees. The term
"Landlord" as used in this Lease means the fee owner of the Building, or, if
different, the party holding and exercising the right, as against all others
(except space tenants of the Building) to possession of the entire Building.
Landlord as above-named represents that it is the holder of such rights as of
the date hereof. In the event of the voluntary or involuntary transfer of such
ownership or right to a successor-in-interest of Landlord, Landlord shall be
freed and relieved of all liability and obligation hereunder which shall
thereafter accrue and Tenant shall look solely to such successor-in-interest for
the performance of the covenants and obligations of the Landlord hereunder which
shall thereafter accrue. The liability of any such successor in interest to
Landlord under or with respect to this Lease shall be strictly limited to and
enforceable only out of its or their interest in the Building and Land, and
shall not be enforceable out of any other assets. No mortgagee or ground lessor
which shall succeed to the interest of Landlord hereunder (either in terms of
ownership or possessory rights) shall: (i) be liable for any previous act or
omission of a prior Landlord, (ii) be subject to any rental offsets or defenses
against a prior Landlord, (iii) be bound by any amendment of this Lease made
without its written consent, (iv) be bound by payment by Tenant of rent in
advance in excess of one (1) month's rent, (v) be liable for any construction of
the improvements to be made to the Demised Premises, or for any allowance or
credit to Tenant for rent, construction costs or other expenses, or (vi) be
liable for any security deposit not actually received by it. Subject to the
foregoing, the provisions hereof shall be binding upon and inure to the benefit
of the successors and assigns of Landlord.
9.8. Survival. The provisions of this Paragraph 9 shall
survive termination of this Lease.
10. Eminent Domain. If the whole or a substantial part of the Building
shall be taken or condemned for public or quasi-public use under any statute or
by right of eminent domain or private purchase in lieu thereof by any competent
authority, Tenant shall have no claim against Landlord and shall not have any
claim or right to any portion of the amount that may be awarded as damages or
paid as a result of any such condemnation or purchase; and all right of the
Tenant to damages therefor are hereby assigned by Tenant to Landlord. The
foregoing shall not, however, deprive Tenant of any separate award for moving
expenses, business dislocation damages or for any other award which would not
reduce the award payable to Landlord. Upon the date the right to possession
shall vest in the condemning authority, this Lease shall, at the option of
Landlord or (only in the case of condemnation or taking of the entire Building
or such partial taking as results in the untenantability of the Demised
Premises) at the option of Tenant, cease and terminate with rent adjusted to
such date and Tenant shall have no claim against Landlord for the value of any
unexpired term of this Lease.
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11. Insolvency. Each of the following shall constitute an event of
default by Tenant under this Lease, upon the occurrence of any such event of
default Landlord shall have, without need of any notice, the rights and remedies
enunciated in Paragraph 12 of this Lease for events of default hereunder: (i)
the commencement of levy, execution or attachment proceedings against Tenant,
any principal (which shall be defined as any individual or entity having a
direct or indirect ownership interest in Tenant of more than 25%) thereof or any
partner therein or any surety or guarantor thereof (hereinafter a "Surety") or
any of the assets of Tenant, or the application for or appointment of a
liquidator, receiver, custodian, sequester, conservator, trustee, or other
similar judicial officer; or (ii) the insolvency, under either the bankruptcy or
equity definition, of Tenant or any principal thereof or partner therein or any
Surety; or (iii) the assignment for the benefit of creditors, or the admission
in writing of an inability to pay debts generally as they become due, or the
ordering of the winding-up or liquidation of the affairs of Tenant or any
principal thereof or partner therein or any Surety; or (iv) the commencement of
a case by or against Tenant or any principal thereof or partner therein or any
Surety under any insolvency, bankruptcy, creditor adjustment, debtor
rehabilitation or similar laws, state or federal, or the determination by any of
them to request relief under any insolvency, bankruptcy, creditor adjustment,
debtor rehabilitation or similar proceeding, state or federal, including,
without limitation, the consent by any of them to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian, sequester or
similar official for it or for any of its respective property or assets (unless,
in the case of involuntary proceedings, the same shall be dismissed within
thirty [30] days after institution).
12. Default.
12.1. Events of Default. If Tenant shall fail to take
possession of the Demised Premises within ten (10) days after the Commencement
Date, or if Tenant fails to pay rent or any other sums payable to Landlord
hereunder when due and such default shall continue for ten (10) days after it is
due, or if Tenant shall fail to perform or observe any of the other covenants,
terms or conditions contained in this Lease within twenty (20) days (or such
longer period as is reasonably required to correct any such default, provided
Tenant promptly commences and diligently continues to effectuate a cure [but in
any event within thirty (30) days]) after written notice thereof by Landlord;
provided, however, that Landlord shall not be required to give any such notice
more than once within any twelve (12) month period, and provided that the events
hereinafter enumerated shall be deemed events of default under this Lease
without any notice, grace or cure period: (a) if any of the events specified in
Paragraph 11 occur, or (b) if Tenant fails to take actual bona-fide occupancy of
the Demised Premises or manifests an intention not to take actual, bona-fide
occupancy of the Demised Premises, or if Tenant is a retail tenant or if Tenant
occupies space on the same floor as the main lobby of the Building or space
facing onto the main lobby of the Building and Tenant vacates or abandons the
Demised Premises during the term hereof or removes or manifests an intention to
remove any of Tenant's goods or property therefrom other than in the ordinary
and usual course of Tenant's business, or (c) if any corporate surety or
guarantor of this Lease merges with another entity, or liquidates or dissolves
or changes control or if any surety or guarantor of this Lease fails to comply
with all of the provisions of its suretyship or guaranty agreement, then, and in
any of such cases (notwithstanding any former breach of covenant or waiver
thereof in a former instance)(each of the foregoing an "Event of Default"),
Landlord, in addition to all other rights and remedies available to it by law or
equity or by any other provisions hereof, may at any time thereafter:
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(i) upon three (3) days' notice to Tenant, declare to
be immediately due and payable, on account of the rent and other charges herein
reserved for the balance of the term of this Lease (taken without regard to any
early termination of such term on account of an Event of Default), a sum equal
to the Accelerated Rent Component (as hereinafter defined), in which event
Tenant shall remain liable to Landlord as hereinafter provided; and/or
(ii) whether or not Landlord has elected to recover
the Accelerated Rent Component, terminate this Lease on at least five (5) days'
notice to Tenant and, on the date specified in such notice, this Lease and the
term hereby demised and all rights of Tenant hereunder shall expire and
terminate and Tenant shall thereupon quit and surrender possession of the
Demised Premises to Landlord in the condition elsewhere herein required in which
event Tenant shall remain liable to Landlord as herein provided.
12.2. Accelerated Rent Component. For purposes hereof, the
"Accelerated Rent Component" shall mean the aggregate of:
(i) all rent and other charges, payments, costs and
expenses due from Tenant to Landlord and in arrears at the time of the election
of Landlord to recover the Accelerated Rent Component;
(ii) the minimum rent reserved for the then entire
unexpired balance of the term of this Lease (taken without regard to any early
termination of the term by virtue of an Event of Default), plus all other
charges, payments, costs and expenses herein agreed to be paid by Tenant up to
the end of such term which shall be capable of precise determination at the time
of Landlord's election to recover the Accelerated Rent Component; and
(iii) Landlord's good faith estimate of all charges,
payments, costs and expenses herein agreed to be paid by Tenant up to the end of
such term which shall not be capable of precise determination as aforesaid (and
for such purposes no estimate of any component of additional rent to accrue
pursuant to the provisions of Paragraph 4 hereof shall be less than the amount
which would be due if each such component continued at the highest monthly rate
or amount in effect during the twelve [12] months immediately preceding the
Event of Default).
12.3. Re-entry. In any case in which this Lease shall have
been terminated, or in any case in which Landlord shall have elected to recover
the Accelerated Rent Component and any portion of such sum shall remain unpaid,
Landlord may, without further notice, enter upon and repossess the Demised
Premises, by force, summary proceedings, ejectment or otherwise, and may
dispossess Tenant and remove Tenant and all other persons and property from the
Demised Premises and may have, hold and enjoy the Demised Premises and the rents
and profits therefrom. Landlord may, in its own name, as agent for Tenant, if
this Lease has not been terminated, or in its own behalf, if this Lease has been
terminated, relet the Demised Premises or any part thereof for such term or
terms (which may be greater or less than the period which would otherwise have
constituted the balance of the term of this Lease) and on such terms, conditions
and provisions (which may include concessions or free rent) as Landlord in its
sole discretion may determine. Landlord may, in connection with any such
reletting, cause the Demised Premises to be redecorated, altered, divided,
consolidated with other space or otherwise changed or prepared for reletting. At
Landlord's option, such reletting shall or shall not be deemed a surrender and
acceptance of the Demised Premises.
12.4. Continuing Liability. Tenant shall, with respect to
all periods of time up to and including the expiration of the term of this Lease
(or what would have been the expiration date in the absence of default or
breach) remain liable to Landlord as follows:
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(i) In the event of termination of this Lease on
account of an Event of Default, Tenant shall remain liable to Landlord for
damages equal to the rent and other charges payable under this Lease by Tenant
as if this Lease were still in effect, less the net proceeds of any reletting
after deducting all costs incident thereto (including without limitation all
repossession costs, brokerage and management commission, operating and legal
expenses and fees, alteration costs and expenses of preparation for reletting,
and interest relating thereto) and to the extent such damages shall not have
been recovered by Landlord by virtue of payment by Tenant of the Accelerated
Rent Component (but without prejudice to the right of Landlord to demand and
receive the Accelerated Rent Component), such damages shall be payable to
Landlord monthly upon presentation to Tenant of a bill for the amount due.
(ii) In the event and so long as this Lease shall not
have been terminated after an Event of Default, the rent and all other charges
payable under this Lease shall be reduced by the net proceeds of any reletting
by Landlord (after deducting all costs incident thereto as above set forth) and
by any portion of the Accelerated Rent Component paid by Tenant to Landlord, and
any amount due to Landlord shall be payable monthly upon presentation to Tenant
of a bill for the amount due.
12.5. Credit. In the event Landlord, after an Event of
Default, shall recover the Accelerated Rent Component from Tenant and it shall
be determined at the expiration of the term of this Lease (taken without regard
to early termination for an event of Default) that a credit is due Tenant
because the net proceeds of reletting, as aforesaid, plus the amounts paid to
Landlord by Tenant exceed the aggregate of rent and other charges accrued in
favor of Landlord to the end of such term, Landlord shall retain such excess.
12.6. Limited Duty to Mitigate. After an Event of Default
and a termination of the Lease by Landlord, Landlord shall exercise commercially
reasonable efforts to mitigate its damages; provided, however, that Landlord
shall in no event be responsible or liable for any failure to relet the Demised
Premises or any part thereof, or for any failure to collect any rent due upon a
reletting, except to the extent of Landlord's obligations under law. Without
limiting the foregoing general statement of Landlord's rights and obligations in
such regard, Landlord shall have no obligation to relet all or any portion of
the Demised Premises in preference or priority to any other space Landlord may
have available for rent or lease elsewhere in the Building or otherwise and
Landlord shall not be deemed to have failed to mitigate its damages if Landlord
or Landlord's agents lease any other space in the Building (or any other
building owned by Landlord or an affiliate of Landlord), before reletting the
Demised Premises. Furthermore, Tenant recognizes that the value of the Building
depends upon rental rates, terms of leases, and quality of tenants, and
acknowledges that Landlord's rejection of a prospective replacement tenant
(which, in Landlord's sole judgment, is financially unacceptable, is
incompatible, inconsistent, or unacceptable with the character, use and/or image
of the Building or the tenancy at the Building, or would otherwise fail to
satisfy any of the minimum criteria for a prospective transferee as set forth in
Section 7.1 above) or of lease terms which are less favorable to Landlord than
those contained herein, or of an offer to lease for a rental below Landlord's
published rates for new leases of comparable space in the Building, shall not
give rise to any claim that Landlord has failed to adequately mitigate
Landlord's damages. In addition, in the event of any default hereunder by
Landlord, Tenant shall, subject to the terms of this Lease, exercise
commercially reasonable efforts to mitigate any damages incurred by Tenant as a
result of such default.
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12.7. Confession of Judgment. LANDLORD SHALL HAVE THE
FOLLOWING RIGHTS TO CONFESS JUDGMENT AGAINST TENANT AND ALL PERSONS CLAIMING
THROUGH TENANT, FOR POSSESSION OF THE DEMISED PREMISES UPON AN EVENT OF DEFAULT:
(i) WHEN THIS LEASE SHALL BE TERMINATED BY REASON OF
A DEFAULT BY TENANT, EITHER DURING THE ORIGINAL TERM OF THIS LEASE OR ANY
RENEWAL OR EXTENSION THEREOF, AND ALSO WHEN THE TERM HEREBY CREATED OR ANY
EXTENSION THEREOF SHALL HAVE EXPIRED, IT SHALL BE LAWFUL FOR ANY ATTORNEY TO
APPEAR FOR TENANT IN ANY AND ALL SUITS OR ACTIONS WHICH MAY BE BROUGHT FOR
POSSESSION AND/OR EJECTMENT; AND AS ATTORNEY FOR TENANT TO CONFESS JUDGMENT IN
EJECTMENT AGAINST TENANT AND ALL PERSONS CLAIMING UNDER TENANT FOR THE RECOVERY
BY LANDLORD OF POSSESSION OF THE DEMISED PREMISES, FOR WHICH THIS LEASE SHALL BE
LANDLORD'S SUFFICIENT WARRANT. UPON SUCH CONFESSION OF JUDGMENT FOR POSSESSION,
IF LANDLORD SO DESIRES, A WRIT OF EXECUTION OR OF POSSESSION MAY ISSUE
FORTHWITH, WITHOUT ANY PRIOR WRIT OR PROCEEDINGS WHATSOEVER. IF FOR ANY REASON
AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED, THE SAME SHALL BE DETERMINED AND
THE POSSESSION OF THE DEMISED PREMISES SHALL REMAIN IN OR BE RESTORED TO TENANT,
THEN LANDLORD SHALL HAVE THE RIGHT UPON ANY SUBSEQUENT OR CONTINUING DEFAULT OR
DEFAULTS, OR AFTER EXPIRATION OF THE LEASE, OR UPON THE TERMINATION OF THIS
LEASE AS HEREINBEFORE SET FORTH, TO BRING ONE OR MORE FURTHER ACTIONS AS
HEREINBEFORE SET FORTH TO RECOVER POSSESSION OF THE DEMISED PREMISES.
(ii) In any action of ejectment, Landlord shall cause
to be filed in such action an affidavit made by Landlord or someone acting for
Landlord setting forth the facts necessary to authorize the entry of judgment,
of which facts such affidavit shall be conclusive evidence. If a true copy of
this Lease shall be filed in such action (and the truth of the copy as asserted
in the affidavit of Landlord shall be sufficient evidence of same), it shall not
be necessary to file the original Lease as a warrant of attorney, any rule of
court, custom or practice to the contrary notwithstanding.
(iii) The right to enter judgment against Tenant and
to enforce all of the other provisions of this Lease herein provided for, at the
option of any assignee of this Lease, may be exercised by any assignee of
Landlord's right, title and interest in this Lease in Tenant's own name,
notwithstanding the fact that any or all assignments of such right, title and
interest may not be executed and/or witnessed in accordance with the Act of
Assembly of May 28, 1715, 1 Sm. L. 94, and all supplements and amendments
thereto that have been or may hereafter be passed. Tenant hereby expressly
waives the requirements of such Act of Assembly and any and all laws regulating
the manner and/or form in which such assignments shall be executed and
witnessed.
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(iv) Tenant acknowledges that it has been represented
by counsel in connection with the negotiation of this Lease, that it has read
and discussed with such counsel the provisions herein relating to confession of
judgment, and that it understands the nature and consequences of such
provisions.
12.8. Bankruptcy. Nothing contained in this Lease shall limit
or prejudice the right of Landlord to prove for and obtain as damages incident
to a termination of this Lease, in any bankruptcy, reorganization or other court
proceedings, the maximum amount allowed by any statute or rule of law in effect
when such damages are to be proved.
12.9. Waiver of Defects. Tenant hereby waives all errors and
defects of a non-material procedural nature in any proceedings brought against
it by Landlord under this Lease. Tenant further waives the right to trial by
jury and any notices to quit as may be specified in the Landlord and Tenant Act
of Pennsylvania, Act of April 6, 1951 (68 P.S.C.A. Section 250.101 et seq.), as
the same may have been or may hereafter be amended, and agrees that the notices
provided in this Lease shall be sufficient in any case where a longer period may
be statutorily specified.
12.10. Non-Waiver by Landlord. The failure of Landlord to
insist in any one or more instances upon the strict performance of any one or
more of the agreements, terms, covenants, conditions or obligations of this
Lease, or to exercise any right, remedy or election herein contained, shall not
be construed as a waiver or relinquishment in the future of such performance or
exercise, but the same shall continue and remain in full force and effect with
respect to any subsequent breach, act or omission.
12.11. Partial Payment. No payment by Tenant or receipt by
Landlord of a lesser amount than the correct Minimum Rent or additional rent due
hereunder shall be deemed to be other than a payment on account, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment be deemed to effect or evidence an accord and satisfaction, and Landlord
may accept such check or payment without prejudice to Landlord's right to
recover the balance or pursue any other remedy in this Lease or at law provided.
12.12. Overdue Payments. If rent or any other sum due from
Tenant to Landlord shall be overdue for more than ten (10) days, it shall from
the original due date, until paid, bear interest at the higher of (i) five
percent (5%) above the prime rate published in the Wall Street Journal, if
available (and, if not available, then such comparable substitute rate as may be
selected by Landlord), from time to time, and (ii) the rate of eighteen percent
(18%) per annum (or, if lower, the highest legal rate).
12.13. Cumulative Remedies. No right or remedy herein
conferred upon or reserved to Landlord is intended to be exclusive of any other
right or remedy herein or by law provided, 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.
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13. Subordination.
13.1. General. This Lease is and shall be subject and
subordinate to all ground or underlying leases of the Building and to all
mortgages, deeds of trust and similar security documents which may now or
hereafter be secured upon the Building, and to all renewals, modifications,
consolidations, replacements and extensions thereof. This clause shall be
self-operative and no further instrument of subordination shall be required by
any lessor or mortgagee, but in confirmation of such subordination, Tenant shall
execute, within ten (10) days after request, any certificate that Landlord may
reasonably require acknowledging such subordination. Notwithstanding the
foregoing, the party holding the instrument to which this Lease is subordinate
shall have the right to recognize and preserve this Lease in the event of any
foreclosure sale or possessory action, and in such case, this Lease shall
continue in full force and effect at the option of the party holding the
superior lien and Tenant shall attorn to such party and shall execute,
acknowledge and deliver any instrument that has for its purpose and effect the
confirmation of such attornment. If Landlord shall so request, Tenant shall send
to any mortgagee or ground lessor of the Building designated by Landlord, a copy
of any notice or future notice given by Tenant to Landlord alleging (i) material
breach by Landlord in its obligations under this Lease (ii) exercising an option
to renew, expand or terminate the lease and (iii) any other material
communications.
13.2. Rights of Mortgagee or Ground Lessor. In the event of
any act or omission of Landlord which would give Tenant the right, immediately
or after lapse of a period of time, to cancel or terminate this Lease, or to
claim a partial or total eviction, Tenant shall not exercise such right (i)
until it has given written notice of such act or omission to the holder of each
such mortgage and ground lease whose name and address shall previously have been
furnished to Tenant in writing, and (ii) until a reasonable period for remedying
such act or omission by the holder of each such mortgage and ground lease shall
have elapsed following the giving of such notice (which reasonable period shall
in no event be less than the period to which Landlord would be entitled, under
this Lease or otherwise, after similar notice, to effect such remedy plus an
additional period of time of thirty (30) days for a monetary default, or the
number of days reasonably required for the holder of each such mortgage and
ground lease to obtain possession of the Building and to cure such default (but
in no event less than an additional 30 days period) for any other default).
13.3. Modifications. If, in connection with obtaining,
continuing or renewing financing for which the Building, Land or the Demised
Premises or any interest therein represents collateral in whole or in part, a
banking, insurance or other lender shall request reasonable modifications of
this Lease as a condition of such financing, Tenant will not unreasonably
withhold, delay, condition or defer its consent thereto, provided that such
modifications do not increase the monetary obligations of Tenant hereunder,
change the business terms of this Lease or adversely affect to a material degree
Tenant's leasehold interest hereby created.
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14. Notices. All notices and other communications hereunder, to be
effective, must be in writing (whether or not a writing is expressly required
hereby), and must be either (i) hand delivered, or (ii) sent by a recognized
national overnight courier service, fees prepaid, or (iii) sent by United States
registered or certified mail, return receipt requested, postage prepaid, or (iv)
sent by facsimile transmission (with a confirmation copy immediately to follow
by any of the methods of delivery set forth above); in all of the foregoing
cases to the following respective addresses:
14.1. If to Landlord:
OLS Office Partners, L.P.
c/o The Rubenstein Company, L.P.
4100 One Commerce Square
2005 Market Street
Philadelphia, Pennsylvania 19103
Attention: David B. Rubenstein
R. Bruce Balderson, Jr., Esq.
FAX: (215) 563-4110
14.2. If to Tenant:
Prior to the Commencement Date:
I-Trax.com
c/o Eduneering Incorporated
One Summit Square, Suite 303
Route 413 and Doublewoods Road
Langhorne, PA 19047
Attention: Mr. Gary Reiss, COO
FAX: 267-757-0880
Following the Commencement Date:
I-Trax.com
One Logan Square - Suite 2615
18th and Cherry Streets
Philadelphia, Pennsylvania 19103
Attention: Mr. Gary Reiss, COO
FAX: ________________________
or at such other address or to the attention of such other person as either
party may hereafter give the other for such purpose. Notices will be deemed to
have been given (a) when so delivered (by hand delivery, courier service or
facsimile transmission as aforesaid), or (b) three days after being so mailed
(by registered or certified mail as aforesaid).
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15. Holding Over. Should Tenant continue to occupy the Demised Premises
after expiration of the Term of this Lease or any renewal or renewals thereof,
or after a forfeiture or other termination thereof, such tenancy shall (without
limitation on any of Landlord's rights or remedies therefor) be one at
sufferance from month to month at a minimum monthly rent equal to twice the
greater of (i) the sum of minimum rent and additional rent payable for the last
month of the term of this Lease or, (ii) the fair market rental value at the
time of such holdover, and, in addition to either of the foregoing, all other
charges payable with respect to such last month of this Lease and all damages
suffered or incurred by Landlord as a result of or arising from such holdover
tenancy. Nothing contained herein shall grant Tenant the right to holdover after
the term of this Lease has expired.
16. Reservations in Favor of Landlord. (i) All walls, windows and doors
bounding the Demised Premises (including exterior Building walls, core corridor
walls and doors and any core corridor entrance), except the inside surfaces
thereof, (ii) any terraces or roofs adjacent to the Demised Premises, and (iii)
any space in or adjacent to the Demised Premises used for shafts, pipes,
conduits, fan rooms, ducts, electric or other utilities, sinks or other Building
facilities, and the use thereof, as well as reasonable access thereto through
the Demised Premises for the purposes of operation, maintenance, decoration and
repair, are reserved to Landlord.
17. Completion of Improvements; Delay in Possession.
17.1. Landlord Improvements. Landlord, at Landlord's own cost,
shall furnish, install and otherwise provide and be responsible for all
"Landlord Improvements" identified on Exhibit "F", and Landlord shall perform,
observe and complete its obligations with respect to Landlord Improvements, all
within the time periods therefor and all as more completely set forth herein and
in Exhibit "F".
17.2. Intentionally Omitted.
17.3. Performance of Landlord and Tenant Improvements. The
responsibility for costs, preparation of preliminary and final plans, working
drawings and specifications, bidding process, contracting, payment arrangements,
and all other undertakings with respect to the design and performance of
Landlord Improvements and Tenant Improvements, and the timing and mechanics
thereof and therefor, including Landlord's and Tenant's respective consent and
approval rights related thereto, and also including matters relating to the
consequences of delays and the meaning and definition of "Substantial
Completion," are all as set forth herein and in Exhibit "F".
17.4. Acceptance. Tenant represents that the Building, Land,
and the Demised Premises, the street or streets, sidewalks, parking areas, curbs
and access ways adjoining them, and the present uses and non-uses thereof, 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, by Landlord, except as
may be expressly contained herein with respect to Landlord Improvements to be
constructed in the Demised Premises. Tenant's occupancy of the Demised Premises
shall constitute acceptance of the Landlord Improvements, as set forth in this
Paragraph, subject to paragraph 2.4 hereof. The provisions of this Paragraph
shall survive the termination of this Lease.
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17.5. Delay in Possession. If Landlord shall be unable to
deliver possession of the Demised Premises to Tenant on the date specified for
commencement of the term hereof (i) because a certificate of occupancy has not
been procured, or (ii) because of the holding over or retention of possession of
any tenant or occupant, or (iii) if repairs, improvements or decoration of the
Demised Premises, or of the Building, are not completed, or (iv) because of the
operation of a "force majeure" (which shall mean any delay in performance
hereunder caused by any event beyond the control of Landlord including without
limitation, labor disputes, civil commotion, war, war-like operations, invasion,
rebellion, hostilities, military power, sabotage, governmental regulations or
controls, fire or other casualty, inability to obtain material or services or
acts of God), or (v) for any reason identified in Exhibit "F" attached hereto,
or for any other reason, then in any such case Landlord shall not be subject to
any liability to Tenant. Under such circumstances, except as set forth in
Exhibit "F" to this Lease relating to delays resulting from actions or omissions
by Tenant, the rent reserved and covenanted to be paid herein and the term of
this Lease shall not commence until possession of the Demised Premises is given
or the Demised Premises are available for occupancy by Tenant, and no such
failure to give possession shall in any other respect affect the validity of
this Lease or any obligation of the Tenant hereunder (except as to the date of
commencement of accrual of rent).
18. Communication and Computer Lines. Tenant may install, maintain,
replace, remove or use any communications or computer wires, cables and related
devices (collectively the "Lines") at the Building in or serving the Demised
Premises, provided: (a) Tenant shall obtain Landlord's prior written consent
(which consent shall not be unreasonably withheld or delayed so long as the
existing systems and infrastructure in the Building are adequate therefor and
compatible therewith and which consent may be subject to such reasonable
requirements or restrictions as Landlord may impose), use an experienced and
qualified contractor approved in writing by Landlord, and comply with all of the
other provisions of Paragraph 6.7, (b) any such installation, maintenance,
replacement, removal or use shall comply with all Governmental Requirements
applicable thereto and good work practices including, but not limited to, the
national electrical codes and all requirements of the National Fire Protection
Agency and shall not interfere with the use of any then existing Lines at the
Building, (c) an acceptable number of spare Lines and space for additional Lines
shall be maintained for existing and future occupants of the Building, as
determined in Landlord's reasonable opinion, (d) if Tenant at any time uses any
equipment that may create an electromagnetic field exceeding the normal
insulation ratings of ordinary twisted pair riser cable or cause radiation
higher than normal background radiation, the Lines therefor (including riser
cables) shall be appropriately insulated to prevent such excessive
electromagnetic fields or radiation, (e) as a condition to permitting the
installation of new Lines, Landlord may require that Tenant remove existing
Lines located in or serving the Demised Premises, (f) Tenant's rights shall be
subject to the rights of any regulated telephone company, and (g) Tenant shall
pay all costs in connection therewith, and Landlord reserves the right to
require that Tenant remove any Lines located in or serving the Demised Premises
which are installed in violation of these provisions, or which are at any time
in violation of any Governmental Requirements or represent a dangerous or
potentially dangerous condition (whether such Lines were installed by Tenant or
any other party), within three (3) days after written notice.
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18.1. Landlord Reservation. Landlord may (but shall not have
the obligation to): (i) install new Lines at the Building (ii) create additional
space for Lines at the Building, and (iii) reasonably direct, monitor and/or
supervise the installation, maintenance, replacement and removal of, the
allocation and periodic re-allocation of available space (if any) for, and the
allocation of excess capacity (if any) on, any Lines now or hereafter installed
at the Building by Landlord, Tenant or any other party (but Landlord shall have
no right to monitor or control the information transmitted through such Lines).
Such rights shall not be in limitation of other rights that may be available to
Landlord by Governmental Requirements or otherwise. If Landlord exercises any
such rights, Landlord may charge Tenant for the costs attributable to Tenant, or
may include those costs and all other costs in Operating Expenses (including
without limitation, costs for acquiring and installing Lines and risers to
accommodate new Lines and spare Lines, any associated computerized system and
software for maintaining records of Line connections, and the fees of any
consulting engineers and other experts); provided, any capital expenditures
included in Operating Expenses hereunder shall be amortized (together with
reasonable finance charges) over the useful life of such item (but in no event
longer than five years).
18.2. Removal of Lines. Notwithstanding anything to the
contrary contained in Paragraph 6.4, Landlord reserves the right to require that
Tenant remove any or all Lines installed by or for Tenant within or serving the
Demised Premises upon termination of this Lease, provided Landlord notifies
Tenant prior to or within thirty (30) days following such termination. Any Lines
not required to be removed pursuant to this Paragraph shall, at Landlord's
option, become the Property of Landlord (without payment by Landlord). If Tenant
fails to remove such Lines as required by Landlord, or violates any other
provision of this Paragraph, Landlord may, after twenty (20) days written notice
to Tenant, remove such Lines or remedy such other violation, at Tenant's expense
(without limiting Landlord's other remedies available under this Lease or
applicable Governmental Requirements). Tenant shall not, without the prior
written consent of Landlord in each instance, grant to any third party a
security interest or lien in or on the Lines, and any such security interest or
lien granted without Landlord's written consent shall be null and void. Except
to the extent arising from the intentional or negligent acts of Landlord or
Landlord's agents or employees, Landlord shall have no liability for damages
arising from, and Landlord does not warrant that the Tenant's use of any Lines
will be free from the following (collectively called "Line Problems"): (x) any
eavesdropping or wire-tapping by unauthorized parties, (y) any failure of any
Lines to satisfy Tenant's requirements, or (z) any shortages, failures,
variations, interruptions, disconnections, loss or damage caused by the
installation, maintenance, replacement, use or removal of Lines by or for other
tenants or occupants at the Building, by any failure of the environmental
conditions or the power supply for the Building to conform to any requirements
for the Lines or any associated equipment, or any other problems associated with
any Lines by any other cause. Under no circumstances shall any Line Problems be
deemed an actual or constructive eviction of Tenant, render Landlord liable to
Tenant for abatement of Rent, or relieve Tenant from performance of Tenant's
obligations under this Lease. Landlord in no event shall be liable for damages
by reason of loss of profits, business interruption or other consequential
damage arising from any Line Problems.
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18.3. Communication Contractors. Landlord has informed Tenant
that certain office and communication services may be offered to tenants of the
Building by an entity which may or may not be related to or under contract with
Landlord ("Supplier"). Tenant shall be permitted to contract with Supplier for
the provision of any or all of such services on such terms and conditions as
Tenant and Supplier may agree. Tenant shall also be permitted to obtain office
and communication services from any other reputable person or entity in the
business of providing the same (hereinafter referred to as "Separate Supplier"),
provided that Landlord shall not be required thereby to make any alterations in
or to any part of the Building or the use of any facilities or equipment of the
Building, and provided further that no such services provided by a Separate
Supplier, or any equipment or facilities used or to be used in connection
therewith, shall be incompatible in any respect with, or shall interfere with or
otherwise impair or adversely affect the operation, reliability or quality of
any Building systems or any services, equipment or facilities used or operated
by Supplier or any tenant in the Building. Tenant acknowledges and agrees that:
(a) Landlord has made no warranty or representation to Tenant with respect to
the availability of any such services, whether provided by Supplier or any
Separate Supplier, or the quality, reliability or suitability thereof; (b)
neither Supplier nor any Separate Supplier is acting as the agent or
representative of Landlord in the provision of such services, and Landlord shall
have no liability or responsibility for any failure or inadequacy of such
services, or any equipment or facilities used in the furnishing thereof, or any
act or omission of Supplier or any Separate Supplier or their agents, employees,
representatives, officers or contractors; (c) if Tenant so contracts for such
services with Supplier or Separate Supplier, Landlord shall have no
responsibility or liability for the installation, alteration, repair,
maintenance, furnishing, operation, adjustment or removal of any such services,
equipment, or facilities; and (d) any contract or other agreement between Tenant
and Supplier or any Separate Supplier shall be independent of this Lease, the
obligations of Tenant hereunder, and the rights of Landlord hereunder, and,
without limiting the foregoing, no default or failure of Supplier or any
Separate Supplier with respect to any such contract or agreement relating
thereto, shall have any effect on this Lease or give to Tenant any offset or
defense to the full and timely performance of is obligations hereunder, entitle
Tenant to any abatement of rent or any other payment required to be made by
Tenant hereunder or constitute any actual or constructive eviction of Tenant or
otherwise give rise to any other claim of any nature against Landlord. If Tenant
does not contract for such office and communication services with a Supplier or
Separate Supplier, this subparagraph shall be deemed of no force or effect under
this Lease.
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19. Landlord's Reliance. Landlord has executed the Lease in reliance
upon certain financial information which has been submitted by Tenant to
Landlord prior to the execution of the Lease (the "Financial Information"). From
time to time, upon twenty (20) days written request by Landlord, Tenant will
submit to Landlord current financial information, in detail reasonably
satisfactory to Landlord, in order for Landlord to determine properly Tenant's
then financial condition. As a material inducement to Landlord to enter into
this Lease, Tenant (and each party executing this Lease on behalf of Tenant
individually) represents and warrants to Landlord that: (i) the Financial
Information is complete, true and correct and a presents a fair representation
of Tenant's financial condition at the time of signing of this Lease; (ii)
Tenant and the party executing on behalf of Tenant are fully and properly
authorized to execute and enter into this Lease on behalf of Tenant and to
deliver the same to Landlord; (iii) the execution, delivery and full performance
of this Lease by Tenant do not and shall not constitute a violation of any
contract, agreement, undertaking, judgement, law, decree, governmental or court
order or other restriction of any kind to which Tenant is a party or by which
Tenant may be bound; (iv) Tenant has executed this Lease free from fraud, undue
influence, duress, coercion or other defenses to the execution of this Lease;
(v) this Lease constitutes a valid and binding obligation of Tenant, enforceable
against Tenant in accordance with its terms; (vi) each individual executing this
Lease on behalf of Tenant is legally competent, has attained the age of majority
and has full capacity to enter into this Lease; and (vii) if Tenant is a
corporation, a partnership or a limited liability company: (a) Tenant is duly
organized, validly existing and in good standing under the laws of the state of
its organization and has full power and authority to enter into this Lease, to
perform its obligations under this Lease in accordance with its terms, and to
transact business in Pennsylvania; (b) the execution of this Lease by the
individual or individuals executing it on behalf of Tenant, and the performance
by Tenant of its obligations under this Lease, have been duly authorized and
approved by all necessary corporate, partnership or limited liability company
action, as the case may be; and (c) the execution, delivery and performance of
this Lease by Tenant is not in conflict with Tenant's bylaws or articles of
incorporation, agreement of partnership, limited liability company operating
agreement or certificate of formation or other organization documents or
charters, agreements, rules or regulations governing Tenant's business as any of
the foregoing may have been supplemented, modified, amended, or altered in any
manner.
20. Prior Agreements; Amendments. This Lease constitutes the entire
agreement between the parties relating to the subject matter contained herein.
Neither party hereto has made any representations or promises except as
contained herein or in some further writing signed by the party making such
representation or promise, which, by its express terms, is intended to
supplement the terms hereof. Without limiting the foregoing, this Lease
supersedes all prior negotiations, agreements, informational brochures, letters,
promotional information, proposals, and other statements and materials made or
furnished by Landlord or its agents. No agreement hereinafter made shall be
effective to change, modify, discharge, waive obligations under, or effect an
abandonment of this Lease, in whole or in part, unless such agreement is in
writing and signed by the party against whom enforcement of the change,
modification, discharge, waiver or abandonment is sought. Notwithstanding the
foregoing, no warranty, representation, covenant, writing, document, instrument,
amendment, modification, agreement or like instrument shall be binding upon or
enforceable against Landlord unless executed by Landlord.
21. Captions. The captions of the paragraphs and subparagraphs in this
Lease are inserted and included solely for convenience and shall not be
considered or given any effect in construing the provisions hereof.
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22. Landlord's Right to Cure. Landlord may (but shall not be obligated
to), on five (5) days' notice to Tenant (except that no notice or opportunity to
cure need be given in case of emergency or on account of a default by Tenant
which adversely affects the operation of the Building or the use and enjoyment
thereof by any other tenant(s) of the Building), cure on behalf of Tenant any
Event of Default hereunder by Tenant, which has not been cured within any
applicable cure period provided under Paragraph 12.1 hereof, and the cost of
such cure (including any attorney's fees incurred) shall be deemed additional
rent payable upon demand.
23. Estoppel Statement. Tenant shall from time to time, within ten (10)
days after request by Landlord, execute, acknowledge and deliver to Landlord, or
to any third party designated by Landlord, a statement certifying that this
Lease is unmodified and in full force and effect (or that the same is in full
force and effect as modified, listing any instruments of modification),
confirming the rents and other charges under this Lease and the dates to which
rent and other charges have been paid, and certifying whether or not, to the
best of Tenant's knowledge, Landlord is in default hereunder or whether Tenant
has any claims or demands against Landlord (and, if so, the default, claim
and/or demand shall be specified) and such other reasonable information as
Landlord shall require, in the form set forth in Exhibit "G" hereto or such
similar form as may be required by any subsequent mortgagee or third party. To
the extent such estoppel statement is not received from Tenant in a timely
manner in accordance with this Paragraph, Landlord shall be entitled to furnish
to any third party to whom such estoppel statement would have been delivered
Landlord's good faith statement to the effect requested from Tenant, and Tenant
shall be bound by, and deemed to have delivered, such Landlord's estoppel
statement with respect to this Lease. Any such estoppel statement may be relied
upon by Landlord, any mortgagees, auditors, insurance carriers and prospective
purchasers.
24. Relocation of Tenant. Landlord, at its sole expense, upon not less
than sixty (60) days prior written notice to Tenant (the "Relocation Notice"),
may require Tenant to relocate from the Demised Premises to other premises of
comparable size within the Building in order to permit Landlord to consolidate
the Demised Premises with other adjoining space leased or to be leased to
another tenant in or coming into the Building; provided, however, that in the
event of delivery of any such Relocation Notice, Tenant, by written notice to
Landlord given not later than thirty (30) days following Tenant's receipt of the
Relocation Notice, may elect not to relocate to such other premises, and in lieu
thereof, may terminate this Lease and Tenant shall thereafter vacate the Demised
Premises no later than sixty (60) days after the expiration of such thirty (30)
day period; provided, however, that if Tenant elects to so terminate this Lease,
Landlord may, but shall not be required to, within ten (10) days after
Landlord's receipt of Tenant's election to terminate, withdraw the Relocation
Notice, in which event Tenant's termination of this Lease shall automatically be
rendered null and void and this Lease shall continue in full force and effect.
In the event of any such relocation, Landlord shall: (i) pay all the expenses of
preparing and decorating the new premises so that such premises will be
substantially similar to the Demised Premises; (ii) pay the expense of moving
Tenant's furniture, furnishings, equipment, files and other personal property to
the new premises; and (iii) pay the reasonable costs of replacing existing
stocks of Tenant's letterhead, envelopes, billing statements and other
stationery having Tenant's address thereon. Use and occupancy by Tenant of the
new premises shall be under and pursuant to the same terms, conditions and
provisions of this Lease and Tenant shall execute any and all amendments to this
Lease as Landlord shall deem necessary to effectuate the provisions of this
Paragraph.
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25. Broker. Tenant represents and warrants that it has not dealt with
any broker or agent in the negotiation for or the obtaining of this Lease, other
than The Rubenstein Brokerage Group, Inc. and Cushman & Wakefield ("Brokers"),
and agrees to indemnify, defend and hold Landlord harmless from any and all cost
or liability for compensation claimed by any such broker or agent, other than
Brokers, employed or engaged by it or claiming to have been employed or engaged
by it. Each of the Brokers is entitled to a leasing commission in connection
with the making of this Lease, and Landlord shall pay such commission to each of
the Brokers pursuant to a separate agreement between Landlord and each of the
respective Brokers.
26. Miscellaneous.
26.1. Certain Interpretations. The word "Tenant" as used in
this Lease shall be construed to mean tenants in all cases whether there is more
than one tenant (and in such case the liability of such tenants shall be joint
and several), and the necessary grammatical changes required to make the
provisions hereof apply to corporations, partnerships or individuals, men or
women, shall in all cases be assumed as though in each case fully expressed.
Each provision hereof shall extend to and shall, as the case may require, bind
and inure to the benefit of Tenant and its successors and assigns, provided that
this Lease shall not inure to the benefit of any assignee or successor of Tenant
except upon the express written consent of Landlord as herein provided.
26.2. Partial Invalidity. If any of the provisions of this
Lease, or the application thereof to any person or circumstances, shall, to any
extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such provision or provisions to persons or circumstances other
than those as to whom or to which it is held invalid or unenforceable, shall not
be affected thereby, and every provision of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
26.3. Governing Law. This Lease shall be governed in all
respects by the laws of the Commonwealth of Pennsylvania.
26.4. Light and Air. This Lease does not grant any legal
rights to "light and/or air" outside the Demised Premises nor any particular
view or cityscape visible from the Demised Premises.
26.5. Recording. Neither this Lease nor any memorandum of
lease or short form lease shall be recorded by Tenant and Tenant shall remove
immediately upon request by Landlord any improperly recorded copy of this Lease
or memorandum of Lease.
27. Quiet Enjoyment. Upon payment by Tenant of the rent and other sums
provided herein and Tenant's observance and performance of the covenants, terms
and conditions of this Lease to be observed and performed by Tenant, Tenant
shall peaceably hold and quietly enjoy the Demised Premises for the term of this
Lease without hindrance or obstruction by Landlord or any other person claiming
by, through or under Landlord, subject to the terms and conditions of this
Lease, and to any mortgage or ground lease which is superior to this Lease.
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28. Confidentiality. TENANT ACKNOWLEDGES AND AGREES THAT THE TERMS OF
THIS LEASE AND THE NEGOTIATIONS WHICH LED TO THE EXECUTION OF THIS LEASE ARE
CONFIDENTIAL IN NATURE. TENANT COVENANTS THAT, EXCEPT AS MAY BE REQUIRED BY LAW
OR BY ANY LENDER IN CONNECTION WITH A CURRENT OR PROPOSED FINANCING FOR TENANT,
TENANT SHALL NOT COMMUNICATE THE TERMS OR ANY OTHER ASPECT OF THIS TRANSACTION
WITH, AND WILL NOT DELIVER ALL OR ANY PORTION OF THIS LEASE TO, ANY PERSON OR
ENTITY OTHER THAN LANDLORD.
IN WITNESS WHEREOF, intending to be legally bound hereby, the
parties hereto have caused this Lease to be executed by their duly authorized
representatives the day and year first above written.
WITNESS: LANDLORD:
OLS OFFICE PARTNERS, L.P.
By: TRC One Logan, L.L.C., its General Partner
By: The Rubenstein Company, L.P., its sole
member
illegible By: illegible
--------------------- -------------------------
Authorized Signature
WITNESS: TENANT:
I-TRAX.COM
/s/Michael Green By: /s/Gary Reiss
----------------- ------------------------------
Name: Gary Reiss
-------------------------
Title: Chief Operating Officer
-----------------------
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