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TEACHERS INSURANCE AND ANNUITY ASSOCIATION
EXECUTIVE TERRACE OFFICE FACILITY,
KING OF PRUSSIA, PENNSYLVANIA
LEASE
between
TEACHERS INSURANCE AND ANNUITY ASSOCIATION,
Landlord
and
SEDONA CORPORATION,
Tenant
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TABLE OF CONTENTS
PAGE
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ARTICLE I: DEFINITIONS.....................................................1
Section 1.01 Defined Terms ..................................................1
ARTICLE II: DEMISE AND LEASE................................................3
Section 2.01 Demise and Lease................................................3
Section 2.02 Representations and Warranties; Taking of Possession............4
Section 2.03 Common Areas....................................................4
ARTICLE III: IMPROVEMENTS....................................................4
Section 3.01 Tenant Improvements.............................................4
Section 3.02 Completion and Delivery.........................................4
ARTICLE IV: TERM 5
Section 4.01 Term............................................................5
Section 4.02 Notice of Commencement Date.....................................5
Section 4.03 Renewal Option..................................................5
ARTICLE V: RENT............................................................7
Section 5.01 Base Rent.......................................................7
Section 5.02 Additional Rent.................................................7
Section 5.03 Manner of Payment...............................................7
Section 5.04 Late Payment and Interest.......................................7
Section 5.05 Security Deposit................................................8
ARTICLE VI: ADDITIONAL RENT AND CHARGES.......................................10
Section 6.01 Tenant's Obligation for Taxes..................................10
Section 6.02 Tenant's Share of Real Property Taxes, Utility Costs,
and Operating Expenses.........................................10
ARTICLE VII: SERVICES AND UTILITIES.........................................14
Section 7.01 Landlord's Services............................................14
Section 7.02 Electricity....................................................16
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ARTICLE VIII: INSURANCE......................................................17
Section 8.01 Landlord's Insurance...........................................17
Section 8.02 Public Liability...............................................17
Section 8.03 Tenant's Property and Other Insurance..........................18
Section 8.04 Additional Insurance...........................................18
Section 8.05 Form of Insurance/Certificates.................................18
Section 8.06 Tenant's Failure...............................................18
Section 8.07 Waiver of Subrogation..........................................19
Section 8.08 Tenant's Property and Fixtures.................................19
Section 8.09 Indemnification of Landlord....................................19
Section 8.10 Notification from Tenant.......................................20
ARTICLE IX: REPAIRS AND MAINTENANCE...........................................20
Section 9.01 Tenant Repairs and Maintenance.................................20
Section 9.02 Landlord Repairs and Maintenance...............................20
Section 9.03 Non-Liability of Landlord......................................20
Section 9.04 Inspection of Premises.........................................21
ARTICLE X: FIXTURES, PERSONAL PROPERTY AND ALTERATIONS....................21
Section 10.01 Fixtures and Personal Property.................................21
Section 10.02 Alterations....................................................21
Section 10.03 Liens..........................................................23
ARTICLE XI: USE AND COMPLIANCE WITH LAWS......................................23
Section 11.01 Signs..........................................................23
Section 11.02 Use............................................................23
Section 11.03 Compliance with Laws and Insurance Requirements................24
Section 11.04 Landlord's Inspection and Testing..............................24
Section 11.05 Hazardous Materials............................................25
Section 11.06 Environmental Liens............................................25
Section 11.07 Indemnification................................................25
Section 11.08 Landlord's Right to Cure.......................................26
Section 11.09 Survival.......................................................26
ARTICLE XII: DAMAGE AND DESTRUCTION.........................................26
Section 12.01 Reconstruction.................................................26
Section 12.02 Rent Abatement.................................................26
Section 12.03 Excessive Damage or Destruction................................27
Section 12.04 Uninsured Casualty.............................................27
Section 12.05 Waiver.........................................................27
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Section 12.06 Mortgagee's Right..............................................28
Section 12.07 Damage Near End of Term........................................28
ARTICLE XIII: EMINENT DOMAIN.................................................28
Section 13.01 Eminent Domain.................................................28
Section 13.02 Disposition of Awards..........................................28
Section 13.03 Mortgagee's Right..............................................29
ARTICLE XIV: DEFAULT .......................................................29
Section 14.01 Events of Default..............................................29
Section 14.02 Remedies.......................................................29
ARTICLE XV: ASSIGNMENT AND SUBLETTING......................................32
Section 15.01 Prohibition....................................................32
Section 15.02 Excess Rental..................................................33
Section 15.03 Scope..........................................................34
Section 15.04 Effect of Assignment...........................................34
Section 15.05 Waiver.........................................................34
Section 15.06 Change in Control..............................................34
ARTICLE XVI: OFFSET STATEMENT, ATTORNMENT
AND SUBORDINATION..............................................34
Section 16.01 Offset Statement...............................................34
Section 16.02 Attornment.....................................................35
Section 16.03 Subordination..................................................35
Section 16.04 Mortgagee's Rights.............................................35
Section 16.05 Recording......................................................36
Section 16.06 Release of Landlord............................................36
ARTICLE XVII: INDEMNIFICATION AND LIABILITY..................................36
Section 17.01 Indemnification................................................36
Section 17.02 Waiver and Release.............................................37
Section 17.03 Liability of Landlord..........................................37
ARTICLE XVIII: MISCELLANEOUS..................................................38
Section 18.01 Notices........................................................38
Section 18.02 Successors Bound...............................................38
Section 18.03 Guarantor of Tenant............................................38
Section 18.04 Waiver.........................................................39
Section 18.05 Surrender of Premises and Holding Over.........................39
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Section 18.06 Landlord's Right to Perform....................................39
Section 18.07 Subdivision and Easements......................................40
Section 18.08 Landlord's Reserved Rights in Common Areas.....................40
Section 18.09 Rules and Regulations..........................................40
Section 18.10 Parking........................................................40
Section 18.11 No Nuisance....................................................41
Section 18.12 Relocation.....................................................41
Section 18.13 Financial Statements...........................................41
Section 18.14 Corporate Authority............................................41
Section 18.15 Quiet Enjoyment................................................41
Section 18.16 Waiver of Jury Trial...........................................41
Section 18.17 Broker.........................................................42
Section 18.18 Accord and Satisfaction........................................42
Section 18.19 Captions and Article Numbers...................................42
Section 18.20 Severability...................................................42
Section 18.21 Applicable Law.................................................42
Section 18.22 Submission of Lease............................................42
Section 18.23 Time...........................................................43
Section 18.24 Entire Agreement...............................................43
Section 18.25 Landlord's Management and Income Tax Provisions................43
Section 18.26 Exhibits.......................................................44
Exhibit A - Description of Project
Exhibit B - Depiction of Premises
Exhibit C - Work Letter Agreement
Exhibit D - Notice of Commencement of Lease
Exhibit E - Building Janitorial Specifications
Exhibit F - Offset Statement and Estoppel Certificate
Exhibit G - Rules and Regulations
Exhibit H - Sublet Space
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THIS IS A CONFIDENTIAL DOCUMENT
This Lease (the "Lease"), dated as of the 8th day of August, 2000, is
made by and between LANDLORD (as hereinafter defined) and TENANT (as hereinafter
defined).
ARTICLE I: DEFINITIONS
1.01 Defined Terms. The following terms shall have the meanings
specified in this Section, unless otherwise specifically provided. Other terms
may be defined in other parts of this Lease.
(a) Landlord: Teachers Insurance and Annuity Association,
a New York corporation
(b) Landlord's Address: Teachers Insurance and Annuity Association
730 Third Avenue
New York, New York 10017
Attn: Director, Real Estate
With a copy to:
Grubb & Ellis Management Services, Inc.
1600 Market Street, Suite 1900
Philadelphia, Pennsylvania 19103
Attn: Vice President, Property Management
(c) Tenant: Sedona Corporation,
a Pennsylvania corporation
(d) Tenant's Address: Before Commencement Date:
Sedona Corporation
649 North Lewis Road
Limerick, Pennsylvania 19468
Attn: President
After Commencement Date:
Sedona Corporation
455 South Gulf Road
King of Prussia, Pennsylvania 19406
Attn: President
(e) Broker: Grubb & Ellis, Inc., and Geiss Realty Group, Inc.
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(f) Project: Executive Terrace Office Facility, King of
Prussia, Pennsylvania, including the land
described in Exhibit A and all buildings and
other improvements now or hereafter located
thereon.
(g) Building: The building located at 455 South Gulph Road,
King of Prussia, Pennsylvania. For purposes of
this Lease, the Building shall be conclusively
deemed to contain 129,916 rentable square feet.
(h) Premises: The portion of the Building located on the third
(3rd) floor thereof as shown by cross-hatching
on the Building floor plan(s) attached hereto as
Exhibit B. For purposes of this Lease, the
Premises shall be conclusively deemed to contain
16,510 rentable square feet.
(i) Term: Seven (7) years, plus (if the Commencement Date
is not the first day of a calendar month) the
period from the Commencement Date through the
last day of the calendar month in which the
Commencement Date occurs.
(j) Estimated Commencement
Date: October 15, 2000.
(k) Commencement Date: As defined in Section 4.01.
(l) Expiration Date: The seventh (7th) anniversary of (a) if the
Commencement Date is the first day of a calendar
month, the day before the Commencement Date, or
(b) if the Commencement Date is not the first day
of a calendar month, the last day of the calendar
month in which the Commencement Date occurs. For
example, if the Commencement Date were July 1,
2000, the Expiration Date would be the applicable
anniversary of June 30, 2000; if the Commencement
Date were July 15, 2000, the Expiration Date
would be the applicable anniversary of July 31,
2000. If the Term has been extended or this Lease
has been renewed, the Expiration Date shall be
the last day of the Term as so extended or
renewed.
(m) Lease Year: The period from the Commencement Date through the
day before the one-year anniversary of the
Commencement Date (or if the Commencement Date is
not the first day of a calendar month, the
one-year anniversary of the last day of the month
in which the Commencement Date occurs), and each
one-year period (or portion thereof if the Lease
is terminated during any such one-year period)
thereafter during the Term.
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(n) Base Rent: As set forth below (subject to adjustment as
provided in Section 5.01):
Annual Base Rent Schedule
-------------------------
Portion of Term Base Rent Per Annum
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Lease Year 1 $495,751.56
Lease Year 2 $504,006.48
Lease Year 3 $512,261.52
Lease Year 4 $520,516.56
Lease Year 5 $528,771.48
Lease Year 6 $537,026.52
Lease Year 7 $545,281.56
(o) Tenant's Share: 12.7082%.
(p) Security Deposit: As described in Section 5.05.
(q) Tenant Improvement
Allowance: As described in Exhibit C attached to and
made a part of this Lease.
(r) Base Year: The calendar year 2000.
(s) Operating Expense Tenant's Share of the Operating Expenses (as
Allowance: defined in Section 6.02(b)(iii)) for the Base
Year.
(t) Tax Allowance: Tenant's Share of the Real Property Taxes (as
defined in Section 6.02(b)(i)) for the Base Year.
(u) Utility Allowance: Tenant's Share of the Utility Costs (as defined
in Section 6.02(b)(ii)) for the Base Year.
(v) Electricity Cost Estimate: As defined in Section 7.02(a). Landlord has
initially set the Electricity Cost Estimate at
$37,642.80.
(w) Parking Spaces: Sixty-six (66) unreserved parking spaces in the
parking lot(s) and facilities serving the
Building.
ARTICLE II: DEMISE AND LEASE
2.01 Demise and Lease. Landlord hereby leases to Tenant, and Tenant
hereby leases from Landlord, subject to the provisions of this Lease, the
"Premises" specified in Section 1.01(h) hereof located within the "Building"
specified in Section 1.01(g) hereof, which Building is a portion of the
"Project" identified in Section 1.01(f) hereof. The land on which the Project is
located is more particularly described in Exhibit A attached hereto and the
Premises are shown by cross-hatching on the Building floor plan(s) attached
hereto as Exhibit B. Tenant acknowledges that the sole purpose of the attached
floor plan(s) is to identify the location of the Premises in the Building.
Landlord makes no representation or warranty in the attached floor plan(s) as to
the usable or rentable square footage of the Premises.
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2.02 Representations and Warranties; Taking of Possession. Except as
otherwise expressly set forth in this Lease, Tenant acknowledges that neither
Landlord nor any agent of Landlord has made any representation or warranty with
respect to the Premises, the Building, the Common Areas (as defined in Section
2.03 below), or the Project or their suitability for the conduct of Tenant's
business. By taking possession of the Premises, Tenant accepts the Premises, the
Tenant Improvements (as hereinafter defined) and the Building as completed or
substantially completed (as defined in Section 3.02 below). Landlord will
enforce or assign to Tenant (for the Term of this Lease) Landlord's rights under
any warranties or guaranties Landlord obtains from any contractor(s)
constructing the Tenant Improvements.
2.03 Common Areas. In addition to the Premises, Tenant shall have the
non-exclusive right to use in common with other tenants and/or occupants of the
Building and the Project, subject to the Rules and Regulations referred to in
Section 18.09 hereof and all covenants, conditions and restrictions now or
hereafter affecting or encumbering the Project, the following areas appurtenant
to the Premises: the Building's common entrances, lobbies, rest rooms,
elevators, stairways and access ways, loading and unloading areas, trash areas,
parking areas and facilities, roadways, sidewalks, walkways, parkways, plazas,
driveways and landscaped areas, and similar areas and facilities situated within
the Building and the exterior areas of the Project (collectively, the "Common
Areas"). Tenant acknowledges that Landlord shall have no obligation to construct
or complete any additional buildings or improvements to the Common Areas.
Tenant's right to utilize the Common Areas shall at all times be subject to
Landlord's reserved rights therein as described in Section 18.08 hereof.
ARTICLE III: IMPROVEMENTS
3.01 Tenant Improvements. The Premises are or shall be improved by
Tenant with the tenant improvements (the "Tenant Improvements") as more
particularly described in the Work Letter Agreement attached hereto as Exhibit C
(the "Work Letter Agreement"). Landlord shall exercise reasonable efforts to
make the Premises Ready for Occupancy (as defined in Section 3.02 below) not
later than the Estimated Commencement Date set forth in Section 1.01(j) hereof.
If, however, the Premises are not completed on or before the Estimated
Commencement Date, this Lease shall not be void or voidable, nor shall Landlord
be liable to Tenant for any loss or damage resulting therefrom.
3.02 Completion of Tenant Improvements. The Premises shall be deemed
ready for occupancy ("Ready for Occupancy") when the Tenant Improvements have
been completed or substantially completed by Landlord and delivered, tendered or
made available to Tenant. The term "substantially completed" as used in this
Lease shall mean the date of issuance of a certificate of occupancy (temporary
or permanent) for the Premises by the municipality in which the Premises are
located, or if no certificate of occupancy is required, the date of substantial
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completion of the Tenant Improvements as certified by Landlord's architect,
which certification shall be conclusive and binding upon Landlord and Tenant.
The Tenant Improvements shall be deemed substantially completed notwithstanding
the fact that minor details of construction, mechanical adjustments or
decorations which do not materially interfere with Tenant's use and enjoyment of
the Premises (items normally referred to as "punch list" items) remain to be
performed. By taking possession of the Premises, Tenant accepts the Premises,
the Tenant Improvements and the Building as completed or substantially
completed, except that in the latter case, on or about the date of Tenant's
taking possession of the Premises, Landlord and Tenant shall together prepare a
list of incomplete and/or corrective items needed at the Premises (which shall
not include any items requiring repair or correction due to damage caused in
connection with Tenant's taking possession of the Premises or due to the
negligence or willful misconduct of Tenant, its agents, employees or
contractors). If properly includable as part of the Tenant Improvements,
Landlord shall diligently complete, as soon as reasonably possible, any items of
work and adjustment on such list as are not completed when the Premises are
Ready for Occupancy. Landlord will give Tenant reasonable advance notice of the
date on which Landlord expects the Premises to be Ready for Occupancy.
ARTICLE IV: TERM
4.01 Term. The Term shall commence upon the earliest of the following
dates (the "Commencement Date"): (a) the date on which the Premises are Ready
for Occupancy (or, if the date on which the Premises are Ready for Occupancy is
delayed and such delay is caused by Tenant's delays in reviewing or approving
plans and specifications, Tenant's requests for materials, finishes or
installations other than "building standard", Tenant's changes in plans and
specifications, or other acts, omissions or delays of Tenant, the Commencement
Date shall be the date that falls the total number of days of delay attributable
to such causes prior to the date on which the Premises are Ready for Occupancy,
as reasonably determined by Landlord); or (b) the date upon which Tenant takes
possession or beneficial occupancy of the Premises with Landlord's written
consent. The Term shall expire at 11:59 P.M. on the Expiration Date set forth in
Section 1.01(l), unless sooner terminated as hereinafter provided.
4.02 Notice of Commencement Date. Upon ascertaining the Commencement
Date, Landlord shall deliver to Tenant a written confirmation of the
Commencement Date, in the form attached hereto as Exhibit D (the "Notice of
Commencement"). The Notice of Commencement shall be binding upon Tenant unless
Tenant objects thereto in a writing delivered to Landlord within five (5)
business days of Tenant's receipt of the Notice of Commencement. However,
Landlord's failure to send the Notice of Commencement shall not delay the
commencement of or any of Tenant's obligations under this Lease if Tenant takes
possession or beneficial occupancy of the Premises with Landlord's written
consent prior to the Commencement Date set forth in the Notice of Commencement.
4.03 Renewal Option. Provided Tenant is not in default, beyond the
expiration of any applicable notice or grace period, at the time the option
described in this Section 4.03 is exercised, Tenant shall have the right and
option to renew this Lease (the "Renewal Option") for one (1) additional term of
five (5) years (the "Renewal Term") to commence immediately upon expiration of
the original Term of this Lease. Tenant may exercise the Renewal Option only by
delivering written notice to Landlord not later than nine (9) months, nor
earlier than twelve (12) months, prior to the expiration of the original Term of
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this Lease. Such notice shall be given to Landlord in accordance with Section
18.01 hereof. If Tenant timely exercises the Renewal Option and is not in
default, beyond the expiration of any applicable notice or grace period, at the
expiration of the original Term of this Lease (unless such default is waived by
Landlord at Landlord's sole discretion; such default may not be used by Tenant
as a means of negating the effectiveness of an earlier exercise by Tenant of the
Renewal Option), this Lease shall continue during the Renewal Term upon the same
covenants, terms and conditions applicable to the original Term of this Lease,
except for provisions which (i) relate to the construction or payment for
construction of improvements in the Premises at the commencement of this Lease,
(ii) grant to Tenant any credit or concession in the payment of Rent, or (iii)
otherwise by their nature are applicable only to the original Term of this
Lease. Notwithstanding the foregoing, however, upon the commencement of the
Renewal Term, the Base Year, for purposes of the Renewal Term, shall mean the
calendar year in which the Renewal Term commences.
Notwithstanding the foregoing, (i) annual Base Rent payable
during the Renewal Term shall equal the annual fair market rental value of the
Premises for the Renewal Term, as determined in accordance with this paragraph
(to be based upon renewal rentals for comparable space in comparable first-class
office buildings in the greater suburban Philadelphia office market, taking into
account the resetting of the Base Year as set forth herein, and assuming such
space is being leased in its then-current "as is" condition for a five (5) year
term, with no concessions or contributions toward improvements by the landlord),
but not less than the sum of (A) $32.00 times the number of rentable square feet
of floor area in the Premises (as determined by Landlord), plus (B) total
Escalation Amounts payable by Tenant per square foot of the Premises with
respect to the twelve (12) calendar months immediately preceding the last date
on which Tenant shall have been entitled to exercise the Renewal Option times
the number of rentable square feet of floor area in the Premises (such sum of
(A) plus (B) being hereinafter referred to as the "Minimum Renewal Base Rent"),
and (ii) the Base Year for the Renewal Term shall be the calendar year in which
the Renewal Term commences. Provided Tenant shall have properly and timely
exercised the Renewal Option, Landlord shall notify Tenant of Landlord's
determination of annual Base Rent for the Renewal Term ("Landlord's
Determination") no later than thirty (30) days following Landlord's receipt of
Tenant's notice. No later than thirty (30) days following Tenant's receipt of
Landlord's Determination, Tenant shall notify Landlord that Tenant: (a) rescinds
its exercise of the Renewal Option, (b) accepts Landlord's Determination, or (c)
is not satisfied with Landlord's Determination and desires to have Base Rent for
the Renewal Term determined in the manner set forth below (Tenant's failure to
so deliver such written notice within such thirty (30) day period shall
constitute Tenant's recission of its exercise of the Renewal Option). If Tenant
has so notified Landlord that Tenant is not satisfied with Landlord's
Determination, Tenant shall promptly engage an MAI appraiser ("Tenant's
Appraiser") with experience appraising first-class office space in the greater
suburban Philadelphia office market to determine the annual fair market rental
value of the Premises for the Renewal Term in accordance with this paragraph
("Tenant's Determination", and together with Landlord's Determination, the
"Determinations"), which Tenant's Determination shall be delivered to Landlord
no later than five (5) months prior to the expiration of the original Term of
this Lease. Tenant shall pay the cost of Tenant's Appraiser. In the event the
greater of the Determinations is not more than 110% times the lesser of the
Determinations, then the annual Base Rent for the Renewal Term shall be the
greater of (i) the average of the Determinations or (ii) the Minimum Renewal
Base Rent. In the event the greater of the Determinations (I) is more than 110%
times the lesser of the Determinations and (II) is more than the Minimum Renewal
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Base Rent, then Landlord and Tenant's Appraiser together shall select a second
(2nd) MAI appraiser (the "Final Appraiser") with experience appraising
first-class office space in the greater suburban Philadelphia office market. The
Final Appraiser shall select which of the Determinations is closest to what the
Final Appraiser would have itself determined to be the annual fair market rental
value of the Premises for the Renewal Term in accordance with this paragraph. If
the Final Appraiser so selects Landlord's Determination, then the annual Base
Rent for the Renewal Term shall be the greater of (i) the amount set forth in
Landlord's Determination or (ii) the Minimum Renewal Base Rent, and if the Final
Appraiser so selects Tenant's Determination, then the annual Base Rent for the
Renewal Term shall be the greater of (I) the amount set forth in Tenant's
Determination or (II) the Minimum Renewal Base Rent. The Final Appraiser's
selection shall be binding upon Landlord and Tenant. Landlord and Tenant each
shall pay one-half (1/2) of the cost of the Final Appraiser. Each determination
of the annual fair market rental value of the Premises for the Renewal Term to
be made under this paragraph shall determine a fixed amount of annual Base Rent
for the entire Renewal Term.
ARTICLE V: RENT
5.01 Base Rent. The Base Rent shall be in the amount(s) set forth in
Section 1.01(n) hereof, unless adjusted as hereinafter provided. The Base Rent
shall be adjusted at the times and in the manner set forth in Section 1.01(n)
hereof (if any), and one-twelfth (1/12th) of the annual Base Rent shall be paid
in advance on the first day of each and every month during the Term, without
notice, demand or setoff. If the Commencement Date is not the first day of a
calendar month, Base Rent for the fraction of the month in which the
Commencement Date occurs shall be prorated based upon the actual number of days
in such fractional month.
5.02 Additional Rent. In addition to Base Rent, Tenant shall pay to
Landlord all sums of money or other charges required to be paid by Tenant under
this Lease, including but not limited to charges required to be paid by Tenant
under this Lease for Operating Expenses, Real Property Taxes, Utility Costs (all
as defined in Article VI hereof) and Electricity Charges (as defined in Section
7.02(a) hereof) (all such sums being herein deemed "Additional Rent", which term
excludes Base Rent and the Security Deposit), and whether or not same are
designated "Additional Rent" and whether or not same are payable to Landlord or
any other entity. Any Additional Rent provided for in this Lease shall become
due with each monthly installment of Base Rent unless otherwise provided.
5.03 Manner of Payment. Rent payable under this Lease shall be paid in
lawful money of the United States of America, by check (subject to collection)
or wire transfer (at no cost to Landlord), without prior notice or demand
therefor and without any deduction, defense, counterclaim, setoff or abatement
whatsoever. Rent shall be paid to Landlord at Landlord's Address set forth in
Section 1.01(b) hereof or at such other place as Landlord may direct in writing.
The term "Rent" as used in this Lease shall refer collectively to "Base Rent"
and "Additional Rent".
5.04 Late Payment and Interest. If any payment of Rent or any other
charge payable by Tenant hereunder is not paid promptly when due (and, unless
Landlord shall have given the hereinafter described notice on one (1) occasion
during the immediately preceding twelve (12) month period, such payment is not
paid within three (3) days after Tenant's receipt of written notice of such
nonpayment), Tenant shall pay to Landlord a late payment charge equal to ten
percent (10%) of the amount of such delinquent payment in addition to the
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delinquent payment, regardless of whether or not a notice of default (except as
provided above in this sentence) has been given by Landlord. In addition, Tenant
shall pay interest on such late payment and late charge from and after the
expiration of ten (10) days following the original due date of the late payment
at an interest rate (the "Interest Rate") equal to the lesser of (a) the
prevailing prime rate as published by Chase Manhattan Bank, N.A., at its New
York office (or a successor bank selected by Landlord upon written notice to
Tenant), plus three (3) percentage points, or (b) the maximum rate permitted by
applicable law, until such amounts are paid. Landlord and Tenant recognize that
the damages which Landlord will suffer as a result of Tenant's failure to timely
pay Rent or other amounts due to Landlord are difficult or impracticable to
ascertain, and agree that said interest and late charge constitute a reasonable
estimate of the damages which Landlord will suffer in the event of Tenant's late
payment. This Section 5.04 shall not relieve Tenant from payment of Rent or
other amounts due to Landlord at the times and in the manners herein specified.
Acceptance by Landlord of any such interest and late charge shall not constitute
a waiver of Tenant's default with respect to said overdue amount, nor prevent
Landlord from exercising any other rights or remedies available to Landlord.
5.05 Security Deposit. Tenant has deposited with Landlord either funds
or a letter of credit (and if a letter of credit, hereinafter referred to as the
"Letter of Credit") in the amount of $487,790.00, to be governed by this Section
5.05. The "Security Deposit" shall mean the Letter of Credit, any letter of
credit furnished in replacement or renewal of the Letter of Credit, or any cash
deposited either initially as the Security Deposit under this Lease or in
replacement of the Letter of Credit or any renewal thereof. The term "Letter of
Credit" shall mean the original Letter of Credit delivered to Landlord and each
replacement thereof delivered to Landlord during the Term of this Lease. The
Letter of Credit (i) shall be unconditional and irrevocable, and in such form as
shall be required by Landlord, (ii) shall name Landlord and any
successor-in-interest to Landlord as beneficiary, and (iii) either (A) shall be
issued by a reputable banking institution having an office in Pennsylvania and
shall be presentable for payment at an office of such institution located in
Pennsylvania, or shall be issued by Bank of America, or (B) if issued by a
reputable banking institution other than Bank of America not having an office in
Pennsylvania, the Letter of Credit shall designate a reputable banking
institution having an office in Pennsylvania as the paying agent (the
"Pennsylvania Paying Agent") for such Letter of Credit and the Letter of Credit
shall be presentable for payment at an office of the Pennsylvania Paying Agent
located in Pennsylvania, and the Letter of Credit shall be accompanied by
written documentation satisfactory to Landlord from the Pennsylvania Paying
Agent confirming that the Pennsylvania Paying Agent will be bound by and will
release funds upon presentment of the Letter of Credit at its Pennsylvania
office in accordance with the terms of the Letter of Credit. Tenant shall
deliver to Landlord at least sixty (60) days prior to the expiration of Letter
of Credit a replacement Letter of Credit issued by the same financial
institution as issued the Letter of Credit (or such other reputable banking
institution as is reasonably acceptable to Landlord), in the same form as the
Letter of Credit (or in such other form as is acceptable to Landlord). If Tenant
fails to timely deliver any such replacement Letter of Credit, Landlord may,
upon two (2) business days prior notice to Tenant, present the Letter of Credit
for payment and Landlord may hold such payment as Security Deposit. The payment
of the Security Deposit is a current and absolute payment by Tenant to Landlord,
and the Security Deposit is and shall remain the sole and absolute property of
Landlord, subject only to Tenant's right to have the Security Deposit returned
to Tenant in accordance with and subject to the terms of this Section 5.05. The
Security Deposit shall secure Tenant's full and faithful performance of all of
Tenant's obligations under this Lease, including, without limitation, the
obligation to pay Rent and other monetary amounts, to maintain the Premises and
repair damages thereto and to surrender the Premises to Landlord in a clean
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condition and in good repair upon termination of this Lease as required pursuant
to Section 18.05 below. Landlord shall not be required to keep the Security
Deposit separate from Landlord's general funds, nor shall Tenant be entitled to
interest on the Security Deposit. If Tenant fails, beyond the expiration of any
applicable grace or cure period, to perform any of Tenant's obligations
hereunder, Landlord, without any obligation to do so, may apply all or any
portion of the Security Deposit toward fulfillment of Tenant's unperformed
obligations. If Landlord does so apply any portion of the Security Deposit,
Tenant, upon demand by Landlord, shall immediately pay Landlord a sufficient
amount to restore the Security Deposit to the full original amount. Tenant's
failure to restore the Security Deposit to its full original amount within five
(5) business days after receipt of such demand shall, without any further notice
or demand required, constitute an Event of Default (as defined in Article XIV
hereof). Use by Landlord of the Security Deposit, or any part thereof, to
satisfy any of Tenant's obligations hereunder shall not constitute a waiver of
Tenant's default with respect to such nonperformance for which amounts are
expended, nor prevent Landlord from exercising any other rights or remedies
available to Landlord. Within thirty (30) days after the termination of this
Lease, if Tenant has then performed all of Tenant's obligations hereunder,
Landlord shall return the Security Deposit, or the remaining balance thereof, to
Tenant. If Landlord sells or otherwise transfers Landlord's rights or interest
under this Lease, Landlord shall deliver the Security Deposit, or the remaining
balance thereof, to the transferee, whereupon Landlord shall be released from
any further liability to Tenant with respect to the Security Deposit. If the
Security Deposit is a Letter of Credit, Tenant shall pay the cost of any
transfer of such Letter of Credit to such transferee.
Tenant covenants that it shall not assign, pledge, hypothecate,
mortgage or otherwise encumber the Security Deposit during the Term of this
Lease (except in connection with an assignment of this Lease permitted pursuant
to Article XV hereof). Notwithstanding Tenant's covenant set forth above,
violation of which shall be an Event of Default under this Lease, in the absence
of evidence satisfactory to Landlord of any assignment of the right to receive
the Security Deposit, or the remaining balance thereof, Landlord may return the
Security Deposit to the original Tenant regardless of one or more assignments of
Tenant's interest in such Security Deposit. In such event, upon the return of
the Security Deposit, or the remaining balance thereof, to the original Tenant,
Landlord shall be completely relieved of liability hereunder.
Provided Tenant is not, on each applicable Reduction Date (as
hereinafter defined) as hereinafter provided, then in default under this Lease
beyond the expiration of any applicable grace, notice or cure period, and
further provided that Landlord has not theretofore used any of the Security
Deposit with respect to a default by Tenant as permitted under this Section
5.05, the Security Deposit shall be reduced on each of the first (1st), second
(2nd), third (3rd), fourth (4th) and fifth (5th) anniversary of the Commencement
Date (each, a "Reduction Date") (provided, if the Security Deposit is a Letter
of Credit, that Tenant provides to Landlord a replacement Letter of Credit or
cash in the applicable reduced amount prior to any such reduction), as follows:
Amount to which
Reduction Date Security Deposit Reduced
-------------- ------------------------
1st anniversary $383,032.00
2nd anniversary $287,274.00
3rd anniversary $191,516.00
4th anniversary $95,758.00
5th anniversary One twelfth (1/12) of annual Base Rent in
effect during fifth (5th) Lease Year
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ARTICLE VI: ADDITIONAL RENT AND CHARGES
6.01 Tenant's Obligation for Taxes. In addition to amounts due from
Tenant in accordance with Section 6.02 below, Tenant shall pay or cause to be
paid, prior to delinquency, any and all taxes and assessments levied upon all
trade fixtures, inventories and other personal property placed in and/or upon
the Premises by Tenant. If any such taxes on Tenant's personal property or trade
fixtures are levied against Landlord or Landlord's property or if the assessed
value of the Premises is increased by the inclusion therein of a value placed
upon such personal property or trade fixtures of Tenant, and if Landlord pays
the taxes based upon such increased assessment, Tenant shall, upon demand, repay
to Landlord the taxes so levied or the portion of such taxes resulting from such
increase in the assessment. If the Tenant Improvements in the Premises are
assessed for real property tax purposes at a valuation higher than the valuation
which tenant improvements conforming to Landlord's "building standard" for other
space in the Building are assessed, then the real property taxes and assessments
levied against the Building by reason of such excessive assessed valuation shall
be deemed to be taxes levied against personal property of Tenant and shall be
governed by the provisions of this Section. The records of the county or, if
applicable, municipal assessor, if available and sufficiently detailed for such
purpose, shall be binding on both Landlord and Tenant as a basis for determining
whether the Tenant Improvements are assessed at a higher valuation than
Landlord's "building standard" tenant improvements.
6.02 Tenant's Share of Real Property Taxes, Utility Costs, and
Operating Expenses.
(a) Estimated Expenses. Tenant shall pay to Landlord, as
Additional Rent, the following (the "Escalation Amounts"):
(i) Real Property Taxes. The amount by which Tenant's
Share of Real Property Taxes (as defined below) paid by
Landlord during each calendar year or portion thereof during
the Term (except for the Base Year) exceeds the Tax Allowance
(as defined in Section 1.01(t)) (or in the event of a portion
of a calendar year, the fraction of the Tax Allowance that is
equivalent to the portion of the calendar year in question);
(ii) Utility Costs. The amount by which Tenant's Share of
Utility Costs (as defined below) paid by Landlord during each
calendar year or portion thereof during the Term (except for
the Base Year) exceeds the Utility Allowance (as defined in
Section 1.01(u)) (or in the event of a portion of a calendar
year, the fraction of the Utility Allowance that is equivalent
to the portion of the calendar year in question); and
(iii) Operating Expenses. The amount by which Tenant's
Share of Operating Expenses (as defined below) paid by
Landlord during each calendar year or portion thereof during
the Term (except for the Base Year) exceeds the Operating
Expense Allowance (as defined in Section 1.01(s)) (or in the
event of a portion of a calendar year, the fraction of the
Operating Expense Allowance that is equivalent to the portion
of the calendar year in question).
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Prior to the commencement of each calendar year of the Term, except for
the Base Year, Landlord shall deliver to Tenant an estimate of the annual
Escalation Amounts payable by Tenant pursuant to this provision, and Tenant
shall pay to Landlord on the first of each month in advance, one-twelfth
(1/12th) of Landlord's estimated amount. At the end of each year there shall be
an adjustment made to account for any difference between the actual and the
estimated Escalation Amounts for such calendar year. If Tenant has overpaid the
Escalation Amounts owing pursuant to this provision, and provided Tenant is not
in default hereunder, Landlord shall refund such overpayment to Tenant;
provided, however, that Landlord shall have the right, in its sole discretion,
to credit such overpayment to unpaid Rent payable by Tenant under this Lease,
whether or not same is then due. Notwithstanding anything to the contrary
contained in this Lease, if Tenant's Share of Real Property Taxes, Utility Costs
or Operating Expenses during any calendar year during the Term of this Lease is
less than the Allowance for such item, such shortfall shall not be applied to
reduce the amounts payable by Tenant for Tenant's Share of such other items. If
Tenant has underpaid the Escalation Amounts owing pursuant to this provision,
Tenant shall pay the total amount of such deficiency to Landlord as Additional
Rent with the next payment of Rent due under this Lease following written notice
of said deficiency from Landlord to Tenant. Any Escalation Amounts attributable
to the Term of this Lease which would not otherwise be due until after the date
of the expiration or earlier termination of this Lease, shall, if the exact
amount is uncertain at the time this Lease expires or terminates, be paid by
Tenant to Landlord upon such expiration or termination in an amount to be
reasonably determined by Landlord, with an adjustment to be made once the exact
amount is known. Such obligation shall survive the expiration or earlier
termination of this Lease.
Tenant shall be provided, following the end of each calendar year
during the Term of this Lease, with a statement showing in reasonable detail the
separate charges for Real Property Taxes, Utility Costs, and Operating Expenses
for the such calendar year for which such charges were due (the "Operating
Statement"). If Tenant disputes the amount or characterization of any item
contained in the Operating Statement, Tenant shall have the right to designate
an independent certified public accountant that is not being compensated by
Tenant on a contingency fee basis to audit Landlord's records upon which such
Operating Statement is based, provided Tenant first pays all sums due as shown
on the Operating Statement. Such audit shall be conducted and completed no later
than sixty (60) days following Tenant's receipt of the Operating Statement in
question, provided that Landlord makes all its relevant books and records
available to Tenant's accountant in a reasonably timely fashion. The fee for any
audit conducted on Tenant's behalf shall be borne solely by Tenant. All
information obtained through Tenant's audit, as well as all information with
respect to any compromise, settlement, or adjustment reached between Landlord
and Tenant in connection with such audit, shall be held in strict confidence by
Tenant and its officers, agents, and employees; and Tenant shall, as a condition
to Tenant's right to conduct any such audit, cause Tenant's auditor to execute
an agreement binding such auditor and such auditor's officers, agents, and
employees to such obligation of confidentiality. Landlord shall have the right,
at its sole expense, to have Tenant's audit reviewed by a "Big Five" certified
public accounting firm selected by Landlord or by another mutually agreed upon
certified public accountant, whose determination shall be conclusive and binding
on both Landlord and Tenant. Any adjustment required between Landlord and Tenant
following such audit shall be made in accordance with the procedure set forth in
the immediately preceding paragraph. Any audit and subsequent adjustment in
payment shall be deemed to be conclusive settlement of the dispute. If Tenant
does not notify Landlord of a dispute within sixty (60) days of receipt of such
Operating Statement, Tenant shall be deemed to have accepted Landlord's
calculations as conclusive.
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(b) Defined Terms.
(i) Real Property Taxes. For purposes of this Lease,
"Real Property Taxes" shall consist of all transit charges, housing fund
assessments, real estate taxes, and all other taxes relating to the Premises or
the Building, all other taxes which may be levied in lieu of real estate taxes,
all assessments, assessment bonds, levies, fees and other governmental charges
including but not limited to, charges for traffic facilities and improvements,
water service studies, and improvements or amounts necessary to be expended
because of governmental orders, whether general or special, ordinary or
extraordinary, unforeseen as well as foreseen, of any kind and nature for public
improvements, services, benefits, or any other purpose, which are assessed,
levied, confirmed, imposed or become a lien upon the Premises or the Building or
become payable during the Term (or which become payable after the expiration or
earlier termination of this Lease and are attributable in whole or in part to
any period during the Term), together with all costs and expenses incurred by
Landlord in good faith in contesting, resisting, or appealing any such taxes,
rates, duties, levies or assessments, including, without limitation, legal fees.
"Real Property Taxes" shall exclude any franchise, estate, inheritance or
succession transfer tax of Landlord, or any federal or state income, profits or
revenue tax or charge upon the net income of Landlord from all sources
promulgated and effective after the Commencement Date; provided, however, that
if at any time during the Term there is levied or assessed against Landlord a
federal, state or local tax or excise tax on rent, or any other tax however
described on account of rent or gross receipts or any portion thereof, Tenant
shall pay as Additional Rent one hundred percent (100%) of any said tax or
excise applicable to Rent collected from Tenant. If the Real Property Taxes
payable for the Base Year are reduced by final determination of legal
proceedings, settlement, or otherwise, such reduced amount as finally determined
shall become the amount of Real Property Taxes payable for the Base Year for
purposes of this Lease and such reduced amount shall be used to determine
Tenant's Share of Real Property Taxes payable by Tenant during the Term of this
Lease, and all payments of Tenant's Share of Real Property Taxes theretofore
paid or payable under this Lease shall be recomputed on the basis of such
reduction, and Tenant shall pay to Landlord as Additional Rent within ten (10)
days after being billed therefor any deficiency between the amount of such
payments computed prior to the reduction and the amount thereof due as a result
of such recomputation.
(ii) Utility Costs. For purposes of this Lease,
"Utility Costs" shall consist of all costs incurred for gas, water, sewer,
power, heating, lighting, air conditioning and ventilation consumed by the
Building and the servicing thereof (including costs mandated by laws or
regulations of governmental entities) and not otherwise separately metered and
paid for by or allocable to premises leased to individual tenants of the
Building. Charges for electricity shall not be included in Utility Costs, but
shall be paid in accordance with Section 7.02 of this Lease.
(iii) Operating Expenses. For purposes of this Lease,
"Operating Expenses" shall consist of the total (without duplication) of all
expenses and costs of ownership, administration, operation, management,
maintenance and repair of the Building (other than Real Property Taxes and
Utility Costs), including, without limitation (the following list is for
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definitional purposes only and shall not impose any obligations upon Landlord to
incur the expenses or provide the services listed): (1) premiums and other
insurance costs for insurance maintained by Landlord pursuant to this Lease or
otherwise for the benefit of the Building; (2) wages, salaries and related
expenses of all on-site and off-site employees engaged in operation, management,
maintenance and security, including without limitation, payroll taxes and
similar government charges with respect thereto, insurance, retirement, fringe
benefits and uniform allowances payable to employees; (3) all supplies,
materials and equipment (including rentals) used in such operation, management,
maintenance and repair; (4) all maintenance, security and service costs; (5) all
janitorial costs, including refuse removal and window cleaning; (6) costs
incurred in the management of the Building (including supplies), together with a
reasonable fee for the management of the Building and the rental cost of an
on-site management office; (7) consultant, legal and accounting expenses,
including the cost of audits by certified public accountants (excluding costs
associated with the negotiation of tenant leases or resulting from tenant
defaults); (8) costs of operating and maintaining elevator(s) (if any); (9) all
maintenance, repair and replacement costs relating to the Building, including
sidewalks, landscaping, snow removal, signs (other than tenant signs), service
areas, mechanical rooms, parking and plaza areas, Building exterior, driveways,
including any assessments against the Building pursuant to any covenants,
conditions or restrictions, reciprocal easement agreements, tenancy in common
agreements or similar restrictions or agreements; (10) painting, decorating and
furbishing of the Common Areas of the Building and repairing, restriping and
resurfacing the parking facilities and parking areas of the Building; (11) roof
system maintenance and repairs; (12) amortization of capital improvements to the
extent such capital improvements are installed or used to reduce the costs of
other items included in Operating Costs to the extent of actual savings or to
the extent such improvements are required by governmental laws, rules,
ordinances or regulations enacted following the commencement of the Term; (13)
any personal property taxes levied on or attributable to personal property used
in connection with the operation, management, maintenance and/or repair of the
Building; (14) the cost of permits, certificates and licenses required in
connection with the Building or any portion thereof or any areas used in
connection therewith (except building permits and other development permits),
and any other costs levied, assessed or imposed by or at the direction of, or
resulting from statutes or regulations or interpretations thereof promulgated by
any federal or governmental authority in connection with the use or occupancy of
the Building; (15) all costs, charges and expenses incurred by Landlord in
connection with any change of any company providing electric supply or service,
including, without limitation, maintenance, repair, installation and service
costs associated therewith; and (16) any other expenses of any kind whatsoever
reasonably incurred in managing, operating, maintaining and repairing the
Building.
Operating Expenses shall be reduced by: to the extent actually received
by Landlord, the net proceeds (after deduction of all costs of recovery thereof,
including legal fees) of insurance and damages paid by third parties and which
are not applied to reconstruction or required to be paid to Landlord's
mortgagee; specific costs incurred for the account of, separately billed to, and
paid by specific tenants; repairs or replacements to the extent that the cost of
the same is recovered by Landlord pursuant to original construction warranties;
interest on debt or capital retirement of debt; costs of capital improvements
except as expressly provided in the immediately preceding paragraph; and
Landlord's cost of tenant leasehold improvements, leasing commissions and legal
fees arising from lease disputes.
Notwithstanding the foregoing to the contrary, Operating Expenses shall
not include: depreciation on the Building or equipment; interest on mortgage
encumbrances; ground rents; income taxes; salaries of executive officers of
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Landlord; the cost of installing, operating, and maintaining any specialty
service such as a restaurant or athletic club; the cost of any items to the
extent that Landlord is reimbursed by insurance; any repairs alterations,
additions or other items which are made for another tenant's premises or in
order to prepare a tenant space for occupancy; leasing expenses, including
commissions payable to brokers and legal or professional service fees relating
to obtaining a new tenant; advertising or promotional expenses; the cost of
removing asbestos from the Building, the cost of complying with government
rules, regulations, and statutes promulgated and effective prior to the
Commencement Date; the cost of any work or service performed jointly for the
Building and any other building or property to the extent such cost is not
reasonably allocable to the Building; any costs paid to an affiliate of Landlord
to the extent such costs exceed the amount which would have been paid in the
absence of such relationship; and the cost of any repair made as a result of
casualty or condemnation.
(iv) Tenant's Share. For purposes of this Lease "Tenant's
Share" means the percentage set forth in Section 1.01(o). Tenant's Share is not
meant, nor shall Tenant's Share be construed, to be a representation by Landlord
as to the rentable or usable square footage of the Premises.
(c) Adjustment for Occupancy. Notwithstanding any provision
herein to the contrary, in the event the Building is less than ninety-five
percent (95%) occupied during all or any portion of any calendar year of the
Term, including, without limitation, the Base Year, an adjustment shall be made
in computing variable Operating Expenses and Utility Costs for such year so that
the same shall be computed for such year as though the Building had been
ninety-five percent (95%) occupied during all of such year.
ARTICLE VII: SERVICES AND UTILITIES
7.01 Landlord's Services.
(a) Basic Services. Landlord shall furnish: (i) heat and air
conditioning required for the occupancy of the Premises, between 8 A.M. and 6
P.M. Monday through Friday ("Business Hours"), excluding Saturdays, Sundays and
holidays, and the electricity to power same; (ii) access and elevator service,
including at least one weekend elevator; (iii) rest room supplies; (iv) cleaning
services as set forth in the Building Janitorial Specifications, annexed hereto
as Exhibit E, on weekdays, excluding holidays and weekends; (v) snow removal;
and (vi) such other services as Landlord may elect to provide from time to time.
Landlord shall have the right to modify the terms and/or frequency of the
services provided, so long as Landlord gives at least five (5) days notice of
any changes, and such changes do not materially diminish the services described
herein.
(b) Non-Business Hours. Upon request to Landlord, Tenant shall
have the right to use the Premises beyond Business Hours and on weekends and
holidays upon the express condition that Tenant shall be responsible, at its
sole cost and expense, for any and all building services required and
attributable to such excess use, charged at the rates reasonably determined by
Landlord from time to time. Payment for excess use of services shall be deemed
Additional Rent and shall be paid to Landlord monthly, together with Base Rent.
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(c) Interruption, Etc., of Services. Landlord shall not be in
default hereunder or be liable for any damages directly or indirectly resulting
from, nor shall the Rent be abated or suspended by reason of, (i) the
interruption or curtailment of the use of the Premises as a result of the
installation of any equipment in connection with the Premises or the Building;
(ii) any failure to furnish or delay in furnishing any services required to be
provided by Landlord, unless such failure or delay is caused by any condition
created by Landlord's sole, active negligence or by Landlord's failure to
respond within a reasonable period of time to any written request for service or
repair for which Landlord is obligated under this Lease; (iii) the limitation,
curtailment, rationing or restriction of the use of water or electricity, gas or
any other form of energy or any other service or utility whatsoever serving the
Premises, the Building or the Project; (iv) any defects to, or damage from,
heating, ventilating or air conditioning systems, or components of the
foregoing, which are installed, repaired or modified by Tenant in or serving the
Premises; or (v) damage caused by water leakage, sewage, steam, gas, odors or
plumbing overflows. Landlord shall use reasonable efforts to remedy any
interruption in the furnishing of such services so as to minimize any
interference with the use of the Building by the tenants thereof (including
Tenant). Notwithstanding the foregoing, if (a) there is an interruption or
stoppage of any Building system or Building service and the cause or cure of
such interruption is within Landlord's reasonable control (a "Landlord
Controlled Interruption"), and such interruption is not due to any negligence or
willful misconduct by Tenant, (b) such Landlord Controlled Interruption
materially, adversely interferes with Tenant's use of the Premises (or a portion
thereof) during Business Hours for more than five (5) consecutive business days
after Tenant delivers written notice thereof to Landlord, and (c) Tenant
actually does not use all or the affected portion, if applicable, of the
Premises for the operation of Tenant's business therein, then during the period
of time such condition continues beyond such fifth (5th) consecutive business
day, Tenant shall be entitled to an equitable abatement of Rent for all or the
affected portion of the Premises, as applicable. Such Rent abatement shall cease
immediately upon the earlier to occur of (i) the cessation of such Landlord
Controlled Interruption or (ii) Tenant's re-commencement of use of all or the
affected portion of the Premises, as applicable, for the operation of Tenant's
business therein.
(d) HVAC. If the Tenant Improvements contemplated by Article
III, or any part thereof, are performed by Tenant and include the heating,
ventilating and air conditioning system for the Premises, Landlord shall not be
responsible for the quality of such system, but only for the supply of cooled or
warmed air from the Building's central system to the distribution system in the
Premises. Tenant shall maintain in good working condition and repair any
supplemental heating, ventilating and air conditioning unit or system installed
in the Premises by or on behalf of Tenant (including maintenance mandated by any
law or regulation, including without limitation applicable requirements of the
Occupational Safety and Health Administration), and shall maintain, at Tenant's
sole cost and expense, a maintenance contract on any such unit or system. In
addition, Tenant shall be solely responsible for compliance with all present and
future laws or regulations (including without limitation requirements of the
Occupational Safety and Health Administration that relate to the Premises)
regarding the indoor air quality of the Premises to the extent related to such
supplemental unit or system. Any such supplemental unit or system shall, unless
otherwise determined by Landlord, remain at the Premises at the expiration or
earlier termination of the Term of this Lease, and, together with the
maintenance contract maintained thereon, shall be the property of Landlord.
Tenant shall furnish to Landlord copies of all such maintenance contracts, as
well as evidence of the renewal thereof at least thirty (30) days prior to the
expiration thereof. If, in connection with the Tenant Improvements contemplated
by Article III or any other alterations or improvements to the Premises
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performed by or on behalf of Tenant, any heating, ventilating and air
conditioning equipment or units are installed upon the roof of the Building,
Tenant shall be solely responsible for the cost of the maintenance thereof
(including maintenance mandated by any law or regulation, including without
limitation applicable requirements of the Occupational Safety and Health
Administration), and shall also be solely responsible for the cost of the repair
of any damage caused to the roof of the Building by the installation,
maintenance, operation or removal of such equipment or units.
(e) Light Bulbs. Bulbs for lighting fixtures shall be
initially installed as part of the Tenant Improvements. Any replacement bulbs
provided and installed by Landlord shall be at Tenant's expense.
7.02 Electricity.
(a) Electricity Furnished and Tenant's Payment of Charges.
Landlord shall furnish the electricity which Tenant shall require in the
Premises for normal lighting and other normal and customary office uses during
Business Hours. If Tenant requires electricity beyond Business Hours, Tenant
shall pay to Landlord on demand Landlord's then-applicable charge for
electricity furnished beyond Business Hours. During the Term of the Lease,
Tenant shall pay to Landlord, as Additional Rent, Tenant's Share of the charges
(the "Electricity Charges") incurred by Landlord for all electricity consumed at
the Project during the Term of the Lease. From time to time during the Term of
the Lease, Landlord will notify Tenant of Landlord's estimate of the annual
amount of Tenant's Share of the Electricity Charges (the "Electricity Cost
Estimate"), and Tenant shall pay to Landlord, together with Tenant's monthly
installment of Base Rent, one twelfth (1/12) of the Electricity Cost Estimate.
Landlord has initially set the Electricity Cost Estimate at the amount set forth
in Section 1.01(v). Promptly following the end of each calendar year during the
Term of the Lease, Landlord will notify Tenant of the actual Electric Charges
for the Project during such calendar year and Tenant's Share thereof. If Tenant
has overpaid the Electric Charges for such prior calendar year owing pursuant to
this provision, and provided Tenant is not in default hereunder, Landlord shall
refund such overpayment to Tenant; provided, however, that Landlord shall have
the right, in its sole discretion, to credit such overpayment to unpaid Rent
payable by Tenant under this Lease, whether or not same is then due. If Tenant
has underpaid the Electric Charges for such prior calendar year owing pursuant
to this provision, Tenant shall pay the total amount of such deficiency to
Landlord as Additional Rent with the next payment of Rent due under this Lease
following written notice of said deficiency from Landlord to Tenant. Any
Electric Charges attributable to the Term of this Lease which would not
otherwise be due until after the date of the expiration or earlier termination
of this Lease, shall, if the exact amount is uncertain at the time this Lease
expires or terminates, be paid by Tenant to Landlord upon such expiration or
termination in an amount to be reasonably determined by Landlord, with an
adjustment to be made once the exact amount is known. Such obligation shall
survive the expiration or earlier termination of this Lease.
(b) Electric Submeter. Notwithstanding the provisions of
Section 7.02(a), if Landlord so elects, Landlord shall install, at Tenant's
expense (including, without limitation, any permit or application fees), an
electric meter to measure the electricity actually consumed at the Premises,
provided the local electric utility company so permits. In such case, Tenant
shall pay as Additional Rent the monthly charge for its electrical usage based
on such metering at the tariff applicable to Landlord, or, at Landlord's option,
Tenant may be billed directly by the utility provider. In the event such a
submeter is installed, Tenant shall continue to pay, as Additional Rent in the
manner set forth in Section 7.02(a), Tenant's Share of the charges incurred by
Landlord during the Term of the Lease for all electricity consumed at the
Project by Common Areas and for operation of the Building HVAC system(s).
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(c) Service Provider. If permitted by applicable law, Landlord
shall have the right at any time and from time to time during the Term to either
contract for electric service and/or supply from a different utility company or
companies (each, an "Alternate Service Provider") or continue to contract from
the existing electric service and/or supply provider(s). Tenant shall cooperate
with Landlord, any then-existing electric service and/or supply provider and any
Alternate Service Provider at all times and, as reasonably necessary, shall
allow Landlord, such provider and any Alternate Service Provider reasonable
access to the Building's electric lines, feeders, risers, wiring and other
electrical equipment, if any, located within the Premises.
ARTICLE VIII: INSURANCE
8.01 Landlord's Insurance. During the Term, Landlord shall procure and
maintain in full force and effect with respect to the Building a policy or
policies of all-risk insurance (including sprinkler, vandalism and malicious
mischief coverage, and any other endorsements required by the holder of any fee
or leasehold mortgage) in an amount equal to one hundred percent (100%) of the
full insurance replacement value (replacement cost new, including debris
removal, and demolition) thereof. Tenant shall not permit any use of the
Premises which would jeopardize or conflict with the insurance coverage
maintained by Landlord or cause the premium charged to Landlord to increase
higher than such premium otherwise would be for a general office building of
comparable use and size. If the annual premiums charged Landlord for such
casualty insurance exceed the standard premium rates because the nature of
Tenant's operations results in increased exposure, then Landlord shall advise
Tenant of such and Tenant shall either (i) immediately cease such operations
which caused the increased premiums or (ii) upon receipt of premium invoices
from Landlord, reimburse Landlord for such increased amount as Additional Rent.
Landlord shall have the right, at its option, to keep and maintain in full force
and effect during the Term such other insurance in such amounts and on such
terms as Landlord and/or any mortgagee or beneficiary of any trust deed against
the Building and/or the Project may reasonably require from time to time, in
form, in amounts and for insurance risks against which a prudent Landlord would
protect itself, including but not limited to rental abatement, public liability
and property, elevator, worker's compensation, boiler and machinery, earthquake
and flood insurance.
8.02 Public Liability. Tenant shall, at its own cost and expense, keep
and maintain in full force during the Term and any other period of occupancy of
the Premises by Tenant a policy or policies of commercial general liability
insurance insuring Tenant's activities with respect to the Premises, the
Building, the Common Areas and the Project, against loss, damage, or liability
for personal injury or death of any person, or loss or damage to property
occurring in, upon or about the Premises in an amount of not less than One
Million Dollars ($1,000,000) combined single limit or such larger amounts as may
hereafter be reasonably requested by Landlord. The policy shall (a) insure the
hazards of the Premises and Tenant's operations thereon, (b) include independent
contractor and contractual liability coverage (covering the indemnity contained
in Section 8.09 hereof), (c) name Landlord, Landlord's property management firm
for the Project and any mortgagees designated by Landlord as an additional
insured; (d) contain a cross-liability provision; and (e) contain a provision
that the insurance provided Landlord hereunder shall be primary and
non-contributing. In addition, Tenant shall, at its sole cost and expense, keep
and maintain in full force and effect during the Term a Two Million Dollar
($2,000,000.00) umbrella policy on terms reasonably acceptable to Landlord.
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8.03 Tenant's Property and Other Insurance. Tenant shall, at its own
cost and expense, keep and maintain in full force during the Term and any other
period of occupancy of the Premises by Tenant, a policy or policies of standard
form property insurance insuring against the perils of fire, extended coverage,
vandalism, malicious mischief, special extended coverage ("all-risk") and
sprinkler leakage. This insurance policy shall be upon all property owned by
Tenant, for which Tenant is legally liable or that was installed at Tenant's
expense, and which is located in the Building, including, without limitation,
furniture, fittings, installations, fixtures (other than the Tenant
Improvements), and any other personal property, in an amount not less than one
hundred percent (100%) of the full replacement cost thereof. This insurance
policy shall also insure direct or indirect loss of Tenant's earnings
attributable to Tenant's inability to use fully or obtain access to the Premises
or the Building, together with workers' compensation coverage as required by
state law.
8.04 Additional Insurance. Tenant shall carry such insurance against
such other hazards and in such amounts as may be customarily carried by tenants
of similar properties as Landlord may reasonably require for its protection from
time to time.
8.05 Form of Insurance/Certificates. All policies required to be
carried by Tenant hereunder shall be written in form and content satisfactory to
Landlord and shall be issued by insurance companies approved by Landlord which
are licensed in the state in which the Building is located and holding a general
policy holder's rating of "A" and a financial rating of "X" or better, as set
forth in the most current issue of Best's Insurance Guide, and shall provide
that the policy is not subject to invalidation as to Landlord's interest by
reason of any act or omission of Tenant, its officers, agents, employees,
invitees, licensees, servants, subtenants, concessionaires or contractors
("Agents"). The deductibles of any insurance required to be maintained by Tenant
shall be in amounts reasonably satisfactory to Landlord. Tenant shall furnish to
Landlord, prior to Tenant's entry on the Premises and thereafter within thirty
(30) days prior to the expiration of each such policy, a certificate of
insurance (or renewal thereof) issued by the insurance carrier of each policy of
insurance carried by Tenant pursuant hereto. Said certificates shall expressly
provide that such policies shall not be cancelable or subject to reduction of
coverage or otherwise be subject to material modification except after thirty
(30) days prior written notice to Landlord and any designated mortgagee. Tenant
may carry the insurance required hereunder under a blanket policy, provided such
blanket policy allocates to the Premises coverage in amounts satisfactory to
Landlord, and further provided that all other requirements for insurance set
forth in this Article VIII are met by such blanket policy.
8.06 Tenant's Failure. If Tenant fails to maintain any insurance
required in this Lease, Tenant shall be liable for any loss or cost resulting
from said failure. This Section shall not be deemed to be a waiver of any of
Landlord's rights and remedies under any other section of this Lease. If
Landlord obtains any insurance which it is the responsibility of Tenant to
obtain under this Article VIII, Landlord shall deliver to Tenant a written
statement setting forth the cost of any such insurance, and Tenant shall
promptly reimburse said amount to Landlord upon demand, together with interest
thereon at the Interest Rate from the date of demand until payment in full.
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8.07 Waiver of Subrogation. Landlord and Tenant each hereby release the
other, its officers, directors, employees, contractors and Agents, from
liability or responsibility (to the other or anyone claiming through or under
them by way of subrogation or otherwise) for any loss or damage to property
covered (or required under this Lease to be covered) by valid and collectible
insurance, even if such loss or damage shall have been caused by the fault or
negligence of the other party, or anyone for whom such party may be responsible.
Landlord and Tenant each agree that all such insurance policies carried by each
of them respectively and covering the Building or the Premises or their contents
will include a waiver of the insurer's right of subrogation against the other
party and its Agents.
8.08 Tenant's Property and Fixtures. Tenant assumes the risk of damage
to any furniture, equipment, machinery, goods, supplies or fixtures which are or
remain the property of Tenant or as to which Tenant retains the right of removal
from the Premises.
8.09 Indemnification of Landlord. In amplification of Article XVII and
not in limitation thereof, Tenant shall indemnify, defend and hold harmless
Landlord, Landlord's agents, contractors and employees, the Premises, the
Building and the Project from and against (i) any and all liability, penalties,
losses, damages, costs and expenses, demands, causes of action, claims or
judgments arising from any injury to any person or persons (including death) or
any damage to any property as a result of the use, maintenance, occupation or
operation of the Premises, the Building or the Project by Tenant or Tenant's
Agents or resulting from any breach or default in the performance of any
obligation to be performed by Tenant under the terms of this Lease, or arising
from any act, neglect, fault or omission of Tenant or any of Tenant's Agents,
and (ii) all legal fees, expert fees or other professional fees and court
charges incurred in connection with any of such matters and the defense of any
action arising out of the same or in discharging the Premises, the Building or
the Project, or any part thereof, from any and all liens, charges or judgments
which may accrue or be placed thereon by reason of any act or omission of Tenant
or any of Tenant's Agents; provided, however, that Tenant shall not be required
to indemnify Landlord for any damage or injury of any kind to the extent arising
as a result of the negligence or willful misconduct of Landlord and/or its
agents, contractors or employees or resulting from any breach or default in the
performance of any obligation to be performed by Landlord under the terms of
this Lease. In no event shall Landlord nor any partner, director, officer, agent
or employee of Landlord be liable to Tenant for any personal injury or death or
property damage caused by other lessees or persons in or about the Premises, the
Building or the Project, or caused by public or quasi-public work, or for
consequential damages arising out of any loss of the use of the Premises or any
equipment or facilities therein by Tenant or any persons claiming through or
under Tenant; nor shall Landlord or any partner, director, officer, employee or
agent of Landlord be liable for (i) any damage to property entrusted to
employees or security officers of the Building or the Project, (ii) loss or
damage to any property by theft, (iii) any injury or damage to persons or
property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water or rain which may leak from any part of the Building, the
Common Areas or the Project or from the pipes, appliances or plumbing work
therein or from the roof, street or subsurface or from any other place or
resulting from dampness or any other cause, or (iv) any interference with light
or other incorporeal hereditaments.
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8.10 Notification from Tenant. Tenant shall give prompt notice to
Landlord in case Tenant is or becomes aware of fire or accidents in the
Premises, the Building, the Common Areas or any other portion of the Project or
of any defects therein.
ARTICLE IX: REPAIRS AND MAINTENANCE
9.01 Tenant Repairs and Maintenance. Except as otherwise set forth in
Section 9.02 below, Tenant shall, at Tenant's sole cost and expense, keep and
maintain the entire Premises, including without limitation, all interior walls,
doors, ceilings, fixtures, drapes, lights (including emergency lighting fixtures
in the Premises), ballasts, subfloors and floor coverings thereof, in good
repair and in a clean and safe condition, normal wear and tear excepted. Tenant
shall also be responsible for maintenance of certain heating, ventilating and
air conditioning equipment and/or units as set forth in Section 7.01(d). Tenant
shall also comply with and observe the requirements of all laws and regulations
of any applicable public authority and the requirements of all insurance
policies relating to the Premises.
9.02 Landlord Repairs and Maintenance. Subject to reimbursement
pursuant to Section 6.02 hereof, Landlord shall, except as otherwise set forth
in this Lease, maintain in good condition and repair the Common Areas and the
structural and exterior portions of the Building, and the plumbing, heating,
ventilating, air conditioning, elevator and electrical systems installed or
furnished by Landlord. In the event any of such maintenance and repairs are (i)
needed to any Tenant Improvements installed in the Premises which are above
"building standard", or (ii) necessitated by or to the extent attributable to
the act, neglect or omission of Tenant, or Tenant's Agents, or (iii) required to
any equipment that might be considered a part of the Building plumbing, heating,
ventilating, air conditioning, elevator and/or electrical systems, but which was
installed by or on behalf or at the request of Tenant (with or without
Landlord's consent thereto), then in any of said foregoing events Tenant shall
pay to Landlord, as Additional Rent, the cost of such maintenance and repairs.
Landlord shall not be liable for any failure to make any repairs or to perform
any maintenance unless such failure shall persist for an unreasonable time after
written notice of the need for such repairs or maintenance is given to Landlord
by Tenant. Except as set forth in Article XII hereof, there shall be no
abatement of Rent due to, and Landlord shall have no liability by reason of any
injury to or interference with Tenant's business arising from, the making of any
repairs, alterations or improvements in or to any portion of the Building or the
Premises or in or to fixtures, appurtenances and equipment therein. Except as
may otherwise be expressly set forth herein, Tenant affirms that (a) neither
Landlord nor any agent, employee or officer of Landlord has made any
representation regarding the condition of the Premises, the Building, the Common
Areas or the Project and (b) Landlord shall not be obligated to undertake any
remodeling, improvement, painting or decorating at any time during the Term or
any renewal or extension thereof. Tenant waives the right to make repairs at
Landlord's expense under any law, statute or ordinance now or hereafter in
effect.
9.03 Non-Liability of Landlord. Notwithstanding anything to the
contrary contained in Section 9.02 above, and except as expressly set forth
elsewhere in this Lease, Landlord shall not be in default hereunder nor be
liable for any damages directly or indirectly resulting from, nor shall the Rent
be abated or suspended by reason of, (a) the interruption or curtailment of the
use of the Premises as a result of the performance of Landlord's obligations
under this Article or the installation of any equipment in connection with the
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Premises or the Building or (b) any other condition described in Section 7.01(c)
which may occur during the performance of Landlord's obligations hereunder.
Landlord shall use reasonable efforts to perform its required obligations under
this Lease so as to minimize any interference with the use of the Building by
the tenants thereof (including Tenant).
9.04 Inspection of Premises. Landlord may enter the Premises to
complete construction undertaken by Landlord on the Premises or the Building, to
inspect, clean, improve or repair the same, to inspect the performance by Tenant
of the terms and conditions hereof, to show the Premises to prospective
purchasers and lenders, and for all other purposes as Landlord shall reasonably
deem necessary or appropriate, after reasonable prior notice, except in the case
of an emergency. Tenant hereby waives any claim for damages or any injury or
inconvenience to or interference with Tenant's business, any loss of occupancy
or quiet enjoyment of the Premises, and any other loss in, upon or about the
Premises, resulting from any such entry, except as otherwise provided in this
Lease. Landlord may enter the Premises during the last nine (9) months of the
Term to show the Premises to prospective tenants.
ARTICLE X: FIXTURES, PERSONAL PROPERTY AND ALTERATIONS
10.01 Fixtures and Personal Property. Tenant, at Tenant's expense, may
install any necessary trade fixtures, equipment and furniture in the Premises,
provided that such items are installed and are removable without damage to the
structure of or systems and/or equipment serving the Building. Notwithstanding
the foregoing, Tenant shall not install any vending machines or ice machines in
the Premises without Landlord's prior written consent, which consent shall not
be unreasonably withheld, delayed or conditioned so long as such installation is
solely for on-site use by Tenant's personnel at the Premises. Said trade
fixtures, equipment and furniture shall remain Tenant's property and shall be
removed by Tenant upon the expiration or earlier termination of this Lease.
Landlord reserves the right to approve or disapprove installation of curtains,
draperies, shades or other interior improvements visible from outside the
Premises on wholly aesthetic grounds; same must be approved in writing by
Landlord prior to installation, or Landlord may remove or replace such items at
Tenant's sole expense. As a covenant which shall survive the expiration or
earlier termination of this Lease, Tenant shall repair, at Tenant's sole
expense, all damage caused by the installation or removal of said trade
fixtures, equipment, furniture or aesthetic improvements and shall restore the
affected areas to a condition reasonably compatible with the remainder of the
Premises as determined by Landlord. If Tenant fails to remove the foregoing
items prior to or upon the expiration or earlier termination of this Lease,
Landlord, at its option and without any liability whatsoever to Tenant for loss
thereof or damage thereto, may keep and use same or remove any or all of them
and cause them to be stored or sold in accordance with applicable law, and
Tenant shall, upon demand of Landlord, pay to Landlord as Additional Rent
hereunder all costs and expenses incurred by Landlord in so storing and/or
selling said items.
10.02 Alterations. Tenant shall not make or allow to be made any
alterations, additions or improvements to the Premises ("Alterations"), either
at the inception of this Lease or subsequently during the Term, without
obtaining the prior written consent of Landlord, which consent shall not be
unreasonably withheld, delayed or conditioned. No Alterations shall be permitted
to the outside dimensions of the Premises or the Building, existing bearing
walls and columns, exterior walls, roof, structural ceiling or foundations, nor
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shall Tenant install any electrical equipment that would overload the lines in
the Premises or interfere with the electrical usage of other tenants, unless
approved in writing by Landlord. Tenant shall deliver to Landlord full and
complete plans and specifications of all requested Alterations (which plans
shall conform to specifications attached hereto and made a part hereof as
Schedule III), and any subsequent modifications or additions to such plans and
specifications, prior to undertaking same, and as-built plans when completed,
and no proposed work shall be commenced or continued by Tenant until Landlord
has given its written approval thereof. By approving any request for Alterations
submitted by Tenant, Landlord does not (i) expressly or implicitly covenant or
warrant that any plans or specifications are accurate, safe or sufficient or
that the same comply with any applicable laws, ordinances, building codes, or
the like, or (ii) consent to the imposition of any lien on the Premises or the
Building for any work performed or materials delivered in connection with any
such Alterations. Tenant shall be solely responsible for compliance with
applicable laws, ordinances, building codes, and/or the like, and for obtaining
all necessary permits and governmental approvals and for construction of said
improvements in compliance with same. Further, Tenant shall indemnify, defend
and hold harmless Landlord and the Premises from any loss, cost or expense,
including legal fees, incurred by Landlord as a result of any defects in design,
materials or workmanship resulting from such Alterations. Tenant shall pay to
Landlord's designated Building management firm a fee of three percent (3%) of
the cost of any Alterations as compensation for coordination and oversight of
such Alterations by such Building management firm.
All Alterations shall become the property of Landlord, unless Landlord
directs at the time of its approval of Alterations that such Alterations be
removed by Tenant at the expiration or earlier termination of this Lease. In
such case, Tenant, at Tenant's sole expense, shall remove the Alterations and
repair all damage resulting from such removal and shall restore the affected
areas to a condition reasonably compatible with the remainder of the Premises as
reasonably determined by Landlord, or, at Landlord's option, shall pay to
Landlord all costs arising from such removal and restoration.
All Alterations, and all removal of same, shall be done in a good and
workmanlike manner in compliance with all applicable laws, ordinances, building
codes, regulations and orders of any federal, state, county, municipal or other
public authority and of the insurers of the Building. If required by Landlord,
Tenant shall secure at Tenant's own cost and expense a completion and lien
indemnity bond satisfactory to Landlord for said work. Landlord shall be
entitled to approve the contractors/subcontractors to be used to construct
Alterations. Tenant shall indemnify, defend and hold harmless Landlord and
Landlord's agents, contractors and employees from and against any liability or
damages, and will take all measures necessary to eliminate any negative impact
on the operation of the Building, resulting from any non-union contractor or
subcontractor being used for the Alterations. Tenant shall require that any
contractors used by Tenant carry a comprehensive liability insurance policy
naming Landlord and any mortgagee designated by Landlord as additional insureds,
covering bodily injury in such amounts as may be customary and appropriate for
the improvements undertaken, as reasonably determined by Landlord. Tenant shall
provide proof of such insurance prior to commencement of any work on the
Premises.
10.03 Liens. Tenant shall promptly pay and discharge all claims for
work or labor done, supplies furnished or services rendered at the request of
Tenant or at request of Landlord on behalf of Tenant, and shall keep the
Premises, the Building and the Project free and clear of all mechanic's and
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materialman's liens in connection therewith. Landlord shall have the right, and
shall be given ten (10) business days written notice by Tenant prior to
commencement of the work, to post or keep posted on the Premises, or in the
immediate vicinity thereof, any notices of non-responsibility for any
construction, alteration, or repair of the Premises by Tenant. If any such lien
is filed, Tenant shall cause same to be discharged of record (by bond or
otherwise) within ten (10) days. If said lien is not timely discharged Landlord
may, but shall not be required to, take such action or pay such amount as may be
necessary to remove such lien and Tenant shall pay to Landlord on demand any
such amounts expended by Landlord, together with interest thereon at the
Interest Rate from the date of demand until paid in full.
ARTICLE XI: USE AND COMPLIANCE WITH LAWS
11.01 Signs. Tenant shall not paint, display, inscribe, place or affix
any sign, picture, advertisement, notice, lettering, or direction on any part of
the outside of the Premises, the Building or the Project or visible from the
outside of the Premises, the Building or the Project or in any lobby corridor,
hallway, entrance or other public part of the Building or the Project; however,
Landlord shall prescribe a uniform pattern for tenant identification signs to be
placed on the wall adjacent to the outside of the main door leading into the
Premises. If a sign is required by Tenant (including a sign for a subtenant of
the Sublet Space (as hereinafter defined), then at Tenant's expense (including,
without limitation, all expenses incurred by Landlord to obtain any necessary
permit or approval but Landlord shall have no obligation to obtain a variance
for any such sign), Landlord shall cause such sign to be placed in position.
Tenant (and a subtenant of the Sublet Space) shall be entitled to representation
in any interior building directory or similar listing of all of the tenants in
the Building. Tenant shall be entitled to have its name identified (at Tenant's
sole cost and expense, including, without limitation, all expenses incurred by
Landlord to obtain any necessary permit or approval but Landlord shall have no
obligation to obtain a variance for any such identification) on any exterior
monument sign located at the Project that is made available by Landlord
generally to tenants of the Building, in common with any other tenants to whom
Landlord grants such right; Landlord shall have the right to approve the size
and design of such identification. Landlord shall have the right at any time and
from time to time to remove any sign in order to paint or make repairs,
alterations or improvements to the Premises, the Building or the Common Areas,
and to charge Tenant for the cost incurred by Landlord to remove Tenant's sign
at the termination or earlier expiration of this Lease.
11.02 Use. Tenant shall only use the Premises for general office
purposes and for no other use without the prior written consent of Landlord.
Tenant, in Tenant's use and occupancy of the Premises, shall not subject or
permit the Premises, the Building and/or the Project to be used in any manner
which would tend to damage any portion thereof, or which would increase the cost
of any insurance paid by Landlord with respect thereto. Tenant shall not do or
permit anything to be done in or about the Premises, the Building, the Common
Areas and/or the Project which will in any way obstruct or interfere with the
rights of other tenants or occupants of the Building, the Common Areas and/or
Project, or use or allow the Premises or any portion of the Project to be used
for any improper, immoral, unlawful or objectionable purpose, nor shall Tenant
cause, maintain or permit a nuisance in, on or about the Premises, the Building,
the Common Areas and/or the Project. Tenant shall comply with all restrictive
covenants and obligations created by private contracts which affect the use and
operation of the Premises, the Building, the Common Areas and/or the Project.
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Landlord reserves the right to prescribe the weight and position of all files,
safes and heavy equipment which Tenant desires to place in the Premises so as to
properly distribute the weight thereof. Further, Tenant's business machines and
mechanical equipment which cause vibration or noise that may be transmitted to
the Building structure or to any other space in the Building shall be so
installed, maintained and used by Tenant so as to eliminate such vibration or
noise. Tenant shall be responsible for all structural engineering, fees and
costs required to determine structural load.
11.03 Compliance with Laws and Insurance Requirements. Tenant shall, at
Tenant's sole costs and expense, (a) comply with all "Legal Requirements" and
"Insurance Requirements," (as such terms are hereinafter defined) applicable to
the Premises and the use thereof, (b) maintain and comply with all permits,
licenses and other authorizations required by any government authority or agency
or quasi-government authority or agency for Tenant's use of the Premises and for
the proper operation, maintenance and repair of the Premises, and (c) promptly
and accurately respond in writing to all reasonable inquiries (including without
limitation requests for documents) of Landlord pertaining to Legal Requirements,
Insurance Requirements or related matters. For purposes herein, "Insurance
Requirements" means all terms of any insurance policy maintained by Landlord or
Tenant with respect to the Premises and all requirements of the National Board
of Fire Underwriters (or any other body exerting similar functions) applicable
to or affecting all or any part of the Premises. "Legal Requirements" means all
statutes, codes, ordinances, orders, regulations or directives of any government
authority or agency or quasi-government authority or agency, which now or at any
time hereafter may be applicable to Tenant or to the Premises, or any part
thereof, or any means of access thereto, including, without limitation any laws
pertaining to the regulation of the environment and Hazardous Materials (as
hereafter defined).
11.04 Landlord's Inspection and Testing.
(a) Tenant's Noncompliance. Landlord and any employee,
representative, agent or contractor of Landlord may enter the Premises at any
time and from time to time during normal business hours for purposes of
inspecting same, and conducting tests thereupon, as Landlord deems reasonably
necessary to determine whether Tenant is in compliance with all applicable Legal
Requirements and Insurance Requirements (as such terms are defined above), but
Landlord shall not be obligated to do so. In the event Landlord has determined
that Tenant is in noncompliance, Landlord shall notify Tenant of such fact,
setting forth in such notice the basis for Landlord's determination, and Tenant
shall promptly remedy the noncompliance. If Tenant fails to promptly remedy the
noncompliance, Landlord shall have the right, but not the obligation, to take
such actions as it deems advisable to remedy the noncompliance and all costs and
expenses incurred thereby, including without limitation legal fees and
consultant fees, shall be deemed to be Additional Rent payable by Tenant upon
demand, together with interest thereon at the Interest Rate from the date of
demand until paid in full.
(b) Notice to Tenant; Costs. Unless an emergency exists, as
determined by Landlord in its reasonable discretion, Landlord agrees to notify
Tenant at least one (1) business day prior to the date Landlord desires to
conduct such investigation and testing at the Premises, and agrees to conduct
same in a commercially reasonable manner so as to minimize the disruption to
Tenant's operations. The costs of such investigation and tests shall be included
as an Operating Expense; provided, however, that if it is determined that Tenant
is not in compliance with this Lease, said costs and expenses shall be deemed
Additional Rent payable by Tenant upon demand, together with interest thereon at
the Interest Rate from the date of demand until paid in full.
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11.05 Hazardous Materials. In amplification of Tenant's obligations
under Section 11.03 above and not in limitation thereof, Tenant further agrees
to conduct its business operations at the Premises in compliance with all
applicable environmental laws, orders, regulations and ordinances now existing
or hereafter enacted, and to perform any act or obligation, at Tenant's sole
cost and expense, arising from or in connection with such compliance, to the
extent such compliance is required due to the nature of Tenant's business or due
to Tenant's specific use and/or occupancy of, or any act or omission of Tenant
in or about, the Premises. Tenant shall not cause or permit any Hazardous
Materials (as defined hereinbelow) to be generated, disposed of, or brought
upon, kept or used in or about the Premises, the Building and/or the Project by
Tenant, its agents, employees, contractors, licensees or invitees, except such
incidental quantities of Hazardous Materials as are commonly used in offices
(such as copier fluid, typewriter correction fluids and ordinary cleaning
solvents), provided that such incidental quantities are at all times used, kept
and stored in a manner that complies with all Legal Requirements now or
hereafter pertaining to any such Hazardous Materials. As used herein, "Hazardous
Materials" means any toxic or hazardous waste, pollutant or substance,
including, without limitation, asbestos, PCBs, petroleum products and
by-products, substances defined or listed as hazardous substances or toxic
substances or similarly defined in or pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
ss.9601, et seq.; the Resource Conservation Recovery Act, 42 U.S.C. ss.6901, et
seq.; the Clean Water Act, 33 U.S.C. ss.1251, et seq.; and the Clean Air Act, 42
U.S.C. ss.7401, et seq.; together with all regulations to the foregoing, and any
hazardous or toxic substance or pollutant now or hereafter regulated under any
federal, state or local environmental law, regulation or ordinance, including
those yet to be enacted, as all of such laws and regulations may be amended from
time to time.
11.06 Environmental Liens. Tenant shall promptly notify Landlord of any
liens of which Tenant becomes aware, threatened or attached against the
Premises, the Building or the Project pursuant to any environmental law, rule,
regulation or ordinance. Tenant further agrees, at its sole cost and expense, to
promptly discharge and remove any such lien arising from the violation by Tenant
of any environmental law, rule, regulation or ordinance, within thirty (30) days
from the date Tenant first receives notice of such lien or in such shorter
period of time in the event that the holder of such lien has commenced steps to
cause the Premises, the Building or the Project to be sold pursuant to such
lien, in which event Tenant shall also immediately pay the claim and remove the
lien from the Premises, the Building and/or the Project. If Tenant fails to do
so within said period, Landlord shall be entitled to exercise all of its
available rights and remedies.
11.07 Indemnification. If Tenant breaches the covenants and obligations
set forth in this Article XI, or, if the presence of Hazardous Materials on, in
or about the Premises, the Building or the Project caused by Tenant, its agents,
employees, contractors, licensees or invitees results in contamination of all or
any portion of the Project or any other property, whether or not adjacent
thereto, or if contamination by Hazardous Materials otherwise occurs for which
Tenant is legally liable for damage resulting therefrom, then Tenant shall
indemnify, defend and hold free and harmless Landlord from and against any and
all claims, judgments, damages, penalties, fines, costs, liabilities and losses
(including, without limitation, sums paid in private rights of action or in
settlement of claims, legal fees, consultant fees and expert fees) which arise
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during or after the Term as a result of such contamination. This indemnification
by Tenant of Landlord shall include, without limitation, any and all costs
incurred with respect to any investigation of site conditions and any cleanup,
remedial, removal or restoration work required by any federal, state or local
governmental agency or political subdivision because of the presence of such
Hazardous Materials in, on or about the Premises, the Building, the Project, or
the soil or groundwater on or under the Project.
11.08 Landlord's Right to Cure. In the event Tenant fails to comply
with any provision of this Article XI, Landlord may, at its option but without
obligation, and upon at least two (2) Business Days prior without notice to
Tenant (except in the case of an emergency), perform any and all of Tenant's
required obligations and otherwise cure such default as it deems appropriate in
its sole and absolute discretion. All reasonable costs and fees incurred by
Landlord in the exercise of such right, including without limitation consultant
fees and legal fees, shall be deemed Additional Rent payable by Tenant upon
demand, together with interest thereon at the Interest Rate from the date of
demand until paid in full.
11.09 Survival. The provisions of Sections 11.05, 11.06, 11.07, and
11.08, and this Section 11.09 (the "Surviving Sections") shall survive the
termination or earlier expiration of this Lease. Without limiting the foregoing,
the indemnities, environmental representations and covenants, and the
obligations imposed by the Surviving Sections on Tenant shall survive the
scheduled expiration or earlier termination of this Lease, and, in addition to
performance of the obligations required hereby, Tenant shall continue to pay
Rent, even though this Lease has terminated, until Tenant has completed the
performance of all of its obligations under the Surviving Sections, at the
holdover rate described in Section 18.05 below. The parties hereto expressly
acknowledge and agree that Landlord would not enter into this Lease but for the
provisions of the Surviving Sections and the survival thereof.
ARTICLE XII: DAMAGE AND DESTRUCTION
12.01 Reconstruction. If the Premises are damaged or destroyed during
the Term, Landlord shall, except as hereinafter provided, diligently repair or
rebuild them to substantially the condition in which they existed immediately
prior to such damage or destruction as reasonably determined by Landlord. If
Landlord is obligated or elects to repair or restore as herein provided,
Landlord shall be obligated to make repair or restoration of only those portions
of the Building and the Premises which were initially provided at Landlord's
expense, and the repair and/or restoration of items within the Premises not
provided at Landlord's expense shall be the obligation of Tenant.
12.02 Rent Abatement. If the Premises and/or the Building shall be
damaged or destroyed by fire or other casualty so as to render the Premises
completely or partially untenantable, then the Rent shall be abated in the
proportion that the untenantable area of the Premises bears to the total area of
the Premises for the period from the date of the damage or destruction to the
date that the repair or restoration shall be substantially completed; provided,
however, that (i) if in Landlord's reasonable judgment the repair or restoration
would have been substantially completed at an earlier date but for Tenant's
having failed to reasonably cooperate with Landlord in effecting the same, then
the repair or restoration shall be deemed to have been substantially completed
on such earlier date and, accordingly, any abatement shall cease, and (ii) if
Tenant or any of its subtenants shall reoccupy a portion of the Premises prior
to the substantial completion of the repair or restoration, then the Rent
allocable to such reoccupied portion (on a pro-rata rentable square foot basis),
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shall be payable by Tenant from the date of such occupancy. In no case shall
Tenant be entitled to any compensation or damages for loss in the use in the
whole or any part of the Premises and/or any inconvenience or annoyance
occasioned by such damage, repair, reconstruction or restoration. For purposes
herein, the term "substantially completed," or any variation thereof, shall have
the same meaning as set forth in Section 3.02 hereof.
12.03 Excessive Damage or Destruction. If the Building is or the
Premises are damaged or destroyed to the extent that Landlord determines that
such damage or destruction cannot, with reasonable diligence, be fully repaired
or restored by Landlord by the earlier of (i) one hundred eighty (180) days
after the date of the damage or destruction or (ii) the expiration of the Term
hereof (either, as applicable, the "Repair Date"), Landlord may terminate this
Lease as of the date such damage or destruction occurred, whereupon Landlord and
Tenant (except as otherwise expressly provided in this Lease) be released from
any further obligations under this Lease. Notwithstanding the fact that the
Premises have been damaged or destroyed, Landlord shall determine whether the
Building can be fully repaired or restored by the Repair Date, and Landlord's
determination shall be binding upon Tenant. Landlord shall notify Tenant of its
determination, in writing, within forty-five (45) days after the date of the
damage or destruction. If Landlord determines that the Building can be fully
repaired or restored by the Repair Date, or if it is determined that such repair
or restoration cannot be made by the Repair Date but Landlord does not elect to
terminate, then this Lease shall remain in full force and effect and Landlord
shall diligently repair and restore the damage as soon as reasonably possible.
If Landlord is delayed from repairing and/or restoring the damage to the
Premises within two hundred seventy (270) days after the occurrence of such
damage or destruction (subject to extension for Force Majeure, as described in
Section 18.23 below), Landlord or Tenant may at any time thereafter (but prior
to the substantial completion of said repair and/or restoration by Landlord)
terminate this Lease by ten (10) days prior written notice to the other,
whereupon Landlord and Tenant shall (except as otherwise expressly provided in
this Lease) be released from any further obligations under this Lease.
12.04 Uninsured Casualty. Notwithstanding anything contained in this
Lease to the contrary, in the event of damage to or destruction of all or any
portion of the Premises or the Building for which Landlord is responsible, which
damage or destruction is not fully covered by the insurance proceeds received by
Landlord under the insurance policies required under Article VIII hereinabove,
Landlord may terminate this Lease by written notice to Tenant given within
forty-five (45) days after the date of notice to Landlord that said damage or
destruction is not so covered. If Landlord does not elect to terminate this
Lease (and does not terminate this Lease pursuant to any other Section of this
Article XII), the Lease shall remain in full force and effect and the Premises
and/or the Building shall be repaired and rebuilt in accordance with the
provisions for repair set forth in this Article XII.
12.05 Waiver. With respect to any destruction which Landlord is
obligated to repair or may elect to repair under the terms of this Article XII,
Tenant hereby waives all rights to terminate this Lease pursuant to rights
otherwise presently or hereafter accorded by law to tenants, except as expressly
provided herein.
12.06 Mortgagee's Right. Notwithstanding anything herein to the
contrary, if the holder of any indebtedness secured by a mortgage or deed of
trust covering the Building and/or the Project requires that the insurance
proceeds be applied to such indebtedness, then Landlord shall have the right to
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terminate this Lease by delivering written notice of termination to Tenant
within fifteen (15) days after such requirement is made upon Landlord. Upon any
termination of this Lease under the provisions hereof, the parties shall be
released without further obligation to the other from the date possession of the
Premises is surrendered to Landlord, except for items which are theretofore
accrued and are then unpaid and for obligations which survive termination of
this Lease.
12.07 Damage Near End of Term. Notwithstanding anything to the contrary
contained in this Article XII, Landlord shall not have any obligation whatsoever
to repair, reconstruct or restore the Premises when the damage resulting from
any casualty covered under this Article XII occurs during the last two (2) years
of the Term of this Lease or any extension thereof, and in such event Landlord
shall have the option to terminate this Lease in the manner set forth in Section
12.03 above.
ARTICLE XIII: EMINENT DOMAIN
13.01 Eminent Domain. In case the whole of the Premises, or such part
thereof as, in the reasonable determination of Landlord, shall substantially
interfere with Tenant's use and occupation thereof, or such portion of the
Building or Project as, in the reasonable determination of Landlord, shall
substantially interfere with Landlord's ability to perform its obligations under
this Lease, shall be taken for any public or quasi-public purpose by any lawful
power or authority by exercise of the right of appropriation, condemnation or
eminent domain, or be sold in lieu of or to prevent such taking, either party
shall have the right to terminate this Lease effective as of the date possession
is required to be surrendered to said authority. In the case of a taking of a
portion of the Premises, in the event the amount of property or the type of
estate taken shall not, in the reasonable determination of Landlord,
substantially interfere with the conduct of Tenant's business, Landlord shall
promptly proceed to restore the Premises to substantially their same condition
prior to such partial taking (less the portion thereof lost in such
condemnation), and the Base Rent and Tenant's Share shall be proportionately
reduced by the portion of the Premises which Tenant shall have been deprived of
on account of said taking, effective as of the date possession is required to be
surrendered to the condemning authority. In the event, however, that such taking
is for temporary use only for a period of less than ninety (90) days, this Lease
shall continue in full force and effect, and Tenant shall continue to comply
with all of the provisions hereof, except as such compliance shall be rendered
impossible or impracticable by reason of such temporary taking. Rent shall abate
during the course of a temporary taking of the Premises or a portion thereof to
the extent and for the period of time that the Premises or portion thereof so
taken shall have been rendered untenantable.
13.02 Disposition of Awards. All awards to be paid in connection with
any exercise of eminent domain shall belong to Landlord without any
participation by Tenant. Tenant hereby assigns to Landlord any share of any
award which may be granted to Tenant. Notwithstanding the foregoing, Tenant may
apply separately to the condemning authority for any compensation which may be
separately awarded to Tenant by law, such as moving expenses, provided that such
compensation does not form any part of or diminish Landlord's award.
13.03 Mortgagee's Right. Notwithstanding anything herein to the
contrary, if the holder of any indebtedness secured by a mortgage or deed of
trust covering the Building and/or the Project requires that the condemnation
proceeds be applied to such indebtedness, then Landlord shall have the right to
terminate this Lease by delivering written notice of termination to Tenant
within fifteen (15) days after such requirement is made upon Landlord. Upon any
termination of this Lease under the provisions hereof, the parties shall be
released without further obligation to the other from the date possession of the
Premises is surrendered to Landlord, except for items which are theretofore
accrued and are then unpaid and for obligations which survive termination of
this Lease.
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ARTICLE XIV: DEFAULT
14.01 Events of Default. In addition to Events of Defaults specified in
other sections of this Lease, the occurrence of any of the following events
shall constitute an "Event of Default" on the part of the Tenant with or without
notice from Landlord: (a) Tenant shall fail to pay Rent on its due date or fail
to make any other payment when required pursuant to this Lease (and, unless
Landlord shall have given the hereinafter described notice on one (1) occasion
during the immediately preceding twelve (12) month period, such failure shall
continue for five (5) days after Tenant's receipt of written notice of such
failure); (b) INTENTIONALLY DELETED; (c) Tenant shall file a petition or be
adjudged a debtor or bankrupt or insolvent under the United States Bankruptcy
Code, as amended, or any similar law or statute of the United States or any
State, or if a petition under any of such laws shall be filed involuntarily
against Tenant and such petition is not dismissed within thirty (30) days after
Tenant receives notice of same; (d) a receiver or trustee shall be appointed for
all or substantially all of the assets of Tenant; (e) Tenant shall make a
transfer in fraud of creditors or shall make an assignment for the benefit of
creditors; or (f) except as otherwise provided in subsections (a) through (e)
above or otherwise expressly provided in other Sections of this Lease, Tenant
shall fail to comply with any term, provision or covenant of this Lease and such
failure is not cured within thirty (30) days after written notice thereof to
Tenant (said notice being in lieu of, and not in addition to, any notice
required as a prerequisite to an unlawful detainer or similar action or claim),
or if said default shall require longer than thirty (30) days to cure, if Tenant
shall fail to commence to cure said default within thirty (30) days after the
receipt of written notice thereof and to prosecute the curing of the same to
completion with due diligence.
14.02 Remedies.
(a) Acceleration and Damages. Upon the occurrence of any Event
of Default set forth in this Lease, and in addition to any other remedies
available to Landlord at law or in equity, Landlord shall have the immediate
option to terminate this Lease and all rights of Tenant hereunder. In the event
that Landlord shall elect to terminate this Lease, then Landlord may recover
from Tenant: (i) any unpaid Rent which had accrued at the time of such
termination, plus (ii) unpaid Rent for the unexpired balance of the Term and any
exercised renewal option, plus (iii) any other amount necessary to compensate
Landlord for all the damage proximately caused by Tenant's failure to perform
Tenant's obligations under this Lease or which in the ordinary course of events
would be likely to result therefrom, less (iv) the net proceeds of any reletting
after deducting all reasonable costs incurred by Landlord in connection with
such reletting including without limitation costs of cleaning, altering or
refitting the Premises, advertising, broker fees, and legal fees for preparation
and negotiation of replacement leases ("Relet Charges"). Rent which accrued
through the date of termination shall include interest thereon at the Interest
Rate, and Rent which would have accrued for all periods after the date of
termination shall be discounted to its present value using the discount rate of
the Federal Reserve Bank of New York at the time of termination plus one percent
(1%). The total Rent thereby due shall accrue interest at the Interest Rate
until paid in full.
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(b) Summary Dispossess. Landlord may regain possession of the
Premises (but Landlord shall have no obligation to do so) through summary
dispossess proceedings or through any other lawful means.
(c) Removal of Contents by Landlord. Upon the occurrence of
any Event of Default, Landlord also shall have the right, with or without
terminating this Lease, to re-enter the Premises and remove all persons and
property from the Premises; such property may be removed and stored in a public
warehouse or elsewhere at the cost of and for the account of Tenant, without
service of notice or resort to legal process (all of which Tenant expressly
waives), and Landlord shall have no liability whatsoever to Tenant therefor,
including without limitation liability for trespass or conversion. No re-entry
or taking possession of the Premises by Landlord pursuant to this Section
14.02(c) shall be construed as an acceptance of a surrender of the Premises or
an election to terminate this Lease unless a written notice of such intention is
given to Tenant or unless the termination thereof is decreed by a court of
competent jurisdiction, and Tenant's liability under this Lease shall continue
until the date the Term and any exercised renewal option would have expired had
such termination not occurred.
(d) Option to Relet. In the event that Landlord shall elect to
re-enter as provided above or shall take possession of the Premises pursuant to
legal proceedings or pursuant to any notice provided by law, then, if Landlord
does not elect to terminate this Lease, Landlord may from time to time, without
terminating this Lease, either recover all Rent as it becomes due or relet the
Premises or any part thereof on such terms and conditions as Landlord as its
sole discretion may deem advisable, with the right to make alterations and
repairs to the Premises. In the event Landlord re-lets the Premises, Tenant
shall remain responsible for the difference in Rent received by Landlord on
account of such reletting and the Rent which would have been paid by Tenant
hereunder during the Term of this Lease and any exercised renewal option plus
all Relet Charges incurred by Landlord. Landlord shall be entitled to all
surplus earned on such reletting without accounting to Tenant therefor.
In the event that Landlord shall elect to so relet, then rents received
by Landlord from such reletting shall be applied: first, to the payment of any
Relet Charges; second, to the payment of any indebtedness other than Rent due
hereunder from Tenant to Landlord; third, to the payment of Rent due and unpaid
hereunder, and the residual, if any, shall be held by Landlord and applied to
payment of future Rent as the same shall become due and payable hereunder.
Should that portion of such rents received from such reletting during the month
which is applied to the payment of Rent be less than the Rent payable during
that month by Tenant hereunder, then Tenant shall pay any such deficiency to
Landlord immediately upon demand therefor by Landlord and such amount shall
accrue interest at the Interest Rate from the date of demand until paid in full.
Landlord shall have the right to bring suit for collection of Rent on a monthly
basis without prejudice to Landlord's right to enforce collection of Rent for
any subsequent month.
Notwithstanding any provision hereof to the contrary, Landlord shall
have no obligation or duty to relet or attempt to relet the Premises if other
unoccupied space exists at the Building.
(e) Waiver of Redemption. Tenant hereby waives, to the extent
legally permissible, for itself and all persons claiming by, through or under
it, any right of redemption or for restoration of this Lease under any present
or future law in the event Tenant shall be dispossessed for any cause or in case
Landlord shall obtain possession of the Premises as herein provided.
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(f) Lien on Tenant's Property. To the extent permitted by law,
Tenant hereby grants to Landlord a lien and security interest to secure payment
of all Rent and all other amounts due to Landlord hereunder from Tenant and to
secure payment of any damages or loss which Landlord may suffer by reason of the
breach by Tenant of this Lease. Such security interest shall encumber all goods,
wares, equipment, fixtures, furniture, improvements and other personal property
of Tenant presently or which may hereafter be situated on the Premises, and all
proceeds therefrom (together, the "Collateral"), and such property shall not be
removed without the consent of Landlord until all arrearages in Rent as well as
any and all other sums of money then due to Landlord shall have been paid in
full and all of Tenant's obligations under this Lease shall have been fully
performed by Tenant. Upon the occurrence of an Event of Default, then, in
addition to all other rights and remedies available to Landlord, Landlord may
peaceably enter upon the Premises and take possession of the Collateral, without
liability for trespass or conversion or damage to or loss of the Collateral, and
sell same at public or private sale, with or without having such property at
sale, after giving Tenant reasonable notice of the time and place of any public
or private sale. At any such sale, Landlord or its assigns may purchase unless
otherwise prohibited by law. Unless otherwise provided by law, and without
intending to exclude any other manner of giving notice, Landlord shall give
notice of any such sale to Tenant in the manner prescribed in this Lease at
least five (5) days before the time of sale. The proceeds from any such
disposition, less any and all expenses connected with the taking of possession,
holding and selling of the Collateral (including legal fees), first shall be
paid from the proceeds realized on such sale and the balance applied to amounts
due to Landlord hereunder. Any surplus shall be paid to Tenant or as otherwise
required by law and Tenant shall remain responsible for any deficiencies.
Upon request by Landlord, Tenant agrees to execute and deliver to
Landlord a financing statement, and continuation statements as needed, in form
sufficient to perfect the security interest of Landlord in the Collateral under
the provisions of the Uniform Commercial Code in force in the State where the
Premises are located. Tenant hereby irrevocably appoints Landlord as its agent
and attorney-in-fact with full power and authority to execute and deliver any
such financing statement or continuation statement on behalf of Tenant.
Upon request by Tenant, Landlord shall provide a Landlord's Waiver,
using Landlord's commercially reasonable form therefor, to any commercial lender
or equipment lessor of Tenant.
(g) Cumulative Remedies. All rights, options and remedies of
Landlord contained in this Lease shall be construed and held to be cumulative,
and no one of them shall be exclusive of the other, and Landlord shall have the
right to pursue any one or all of such remedies or any other remedy or relief
which may be provided by law or equity, whether or not stated in this Lease.
Landlord shall be entitled to injunctive relief in case of the violation or
attempted or threatened violation of any covenant or provision of this Lease or
to a decree compelling performance of any covenant or provision of this Lease.
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(h) No Waiver. No waiver of any default of Tenant hereunder
shall be implied from any acceptance by Landlord of any Rent or other payments
due hereunder or any omission by Landlord to take any action on account of such
default or if such default persists or is repeated unless such waiver is in
writing and signed by Landlord, and no written waiver shall affect defaults
other than as specified in said waiver. The consent or approval of Landlord to
or of any act by Tenant requiring Landlord's consent or approval shall not be
deemed to waive or render unnecessary Landlord's consent or approval to or of
any subsequent similar acts by Tenant. Tenant shall be responsible for all legal
fees incurred by Landlord in enforcing its rights hereunder.
(i) Confession of Judgment. INTENTIONALLY DELETED.
ARTICLE XV: ASSIGNMENT AND SUBLETTING
15.01 Prohibition. Tenant shall not assign, mortgage, pledge or
otherwise transfer or encumber this Lease, in whole or in part, nor sublet,
assign or permit occupancy of all or any part of the Premises by any party other
than Tenant, without the prior written consent of Landlord in each instance.
Tenant shall, at the time Tenant requests the consent of Landlord, deliver to
Landlord such information in writing as Landlord may reasonably require
respecting the proposed assignee or subtenant including, without limitation, the
name, address, nature of business, ownership, financial responsibility and
standing of such proposed assignee or subtenant; and Landlord shall have not
less than twenty (20) business days after receipt of all required information to
elect one of the following: (a) consent to such proposed assignment, encumbrance
or sublease; (b) refuse such consent, provided that, unless Landlord elects to
terminate this Lease as hereinafter provided, Landlord shall not unreasonably
withhold such consent so long as conditions (i) through (vi) below are
satisfied; or (c) elect to terminate this Lease or, in the case of a partial
sublease (except in the case of the first (1st) sublease of all or any part of
the Sublet Space (as hereinafter defined)), terminate this Lease as to the
portion of the Premises proposed to be sublet. As a condition for Landlord's
consent to any assignment, encumbrance or release, Landlord may require that the
assignee or subtenant remit directly to Landlord on a monthly basis all monies
due to Tenant by said assignee or subtenant. In addition, a condition to
Landlord's consent to any assignment, sublease or encumbrance of this Lease
shall be the delivery to Landlord of a true copy of the fully executed
instrument of assignment, transfer or encumbrance and an agreement executed by
the assignee, subtenant or other transferee, in form and substance satisfactory
to Landlord and expressly enforceable by Landlord, whereby the assignee,
subtenant or transferee assumes and agrees to be bound by the terms and
provisions of this Lease and perform all the obligations of Tenant hereunder,
including, without limitation, the environmental warranties and covenants set
forth in Article XI. In the event that Landlord shall elect to exercise its
right to terminate this Lease upon a proposed assignment, subletting or other
encumbrance of this Lease by Tenant, Tenant shall have the right, within ten
(10) days following receipt of written notice of Landlord's election to
terminate, to elect to withdraw its request for Landlord's consent to such
proposed assignment, subletting or other encumbrance, in which event Landlord's
termination notice shall be null and void and this Lease shall remain in full
force and effect. If Landlord does not elect to so terminate this Lease with
respect to a proposed assignment or subletting, then Landlord shall not
unreasonably withhold its consent to a proposed assignment or subletting
provided that, in addition to all other requirements of this Article XV being
satisfied:
(i) The proposed subtenant or assignee is not already a tenant
in the Building, or if the proposed subtenant or assignee is
already a tenant in the Building, Landlord does not have space
reasonably comparable in size to that covered by the proposed
sublease or assignment available for lease, or scheduled to
become available within three (3) months thereafter, in the
Building;
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(ii) The stated or advertised rent that Tenant proposes to
charge the proposed subtenant or assignee is not less than
Tenant's Base Rent (but Tenant shall be permitted to
effectively reduce such rent by the use of concessions);
(iii) The subtenant or assignee is not a party with whom
Landlord has had discussions within nine (9) months prior to
the date of the proposed sublease or assignment concerning the
possibility of such party leasing space in the Building;
(iv) The proposed subtenant or assignee is a reputable party
whose financial net worth, credit and financial responsibility
is, considering the responsibilities involved, reasonably
satisfactory to Landlord;
(v) The nature and character of the proposed subtenant or
assignee, its business or activities and intended use of the
Premises is, in Landlord's reasonable judgment, in keeping
with the standards of the Building; and
(vi) All costs incurred with respect to providing reasonably
appropriate means of ingress and egress from the sublet space
or to separate the sublet space from the remainder of the
Premises shall be borne by Tenant.
No assignment or subletting by Tenant (even if such assignment or
subletting is consented to by Landlord) shall relieve Tenant of any obligation
under this Lease. Any purported assignment or subletting contrary to the
provisions hereof without Landlord's consent shall be void. The consent by
Landlord to any assignment or subletting shall not constitute a waiver of the
necessity for such consent to any subsequent assignment or subletting. Tenant
shall reimburse Landlord for reasonable legal and other expenses and
administrative costs incurred by Landlord in connection with any request by
Tenant for consent to assignment or subletting upon demand with interest thereon
at the Interest Rate from the date of demand until paid in full. Landlord
acknowledges that Tenant intends to attempt to sublease, promptly after the
Commencement Date, the portion of the Premises shown on Exhibit H (the "Sublet
Space"); any such sublease shall be subject to the terms and conditions of this
Article XV.
15.02 Excess Rental. If, in connection with any assignment or sublease,
Tenant receives rent or other consideration, either initially or over the term
of the assignment or sublease, in excess of the Rent called for hereunder, or in
case of the sublease of a portion of the Premises, in excess of such Rent fairly
allocable to such portion, Tenant shall pay to Landlord, as Additional Rent
hereunder, fifty percent (50%) of the excess of each such payment of rent or
other consideration received by Tenant promptly after its receipt.
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15.03 Scope. The prohibition against assigning or subletting contained
in this Article XV shall be construed to include a prohibition against any
assignment or subletting by operation of law. If this Lease be assigned, or if
the underlying beneficial interest of Tenant is transferred, or if the Premises
or any part thereof be sublet or occupied by anybody other than Tenant, Landlord
shall have the right to immediately terminate this Lease or Landlord may elect
to collect Rent from the assignee, subtenant or occupant and apply the net
amount collected to the Rent herein reserved and retain any excess Rent so
collected in accordance with the terms of Section 15.02, but no such assignment,
subletting, occupancy or collection shall be deemed a waiver of this covenant,
or the acceptance of the assignee, subtenant or occupant as Tenant, or a release
of Tenant from the further performance by Tenant of covenants on the part of
Tenant herein contained. No assignment or subletting, regardless of whether
consented to by Landlord, shall affect in any way the continuing primary
liability of Tenant (which, following any assignment or subletting, shall be
joint and several with the assignee or subtenant), and Tenant shall not be
released from performing any of the terms, covenants and conditions of this
Lease.
15.04 Effect of Assignment. Unless otherwise agreed to in writing by
Landlord, any renewal option or expansion option or similar right granted to
Tenant in this Lease shall be personal to the original Tenant named in Section
1.01(c) hereof and void upon any assignment or subletting or, with respect to a
partial subletting, void if such sublease is in effect as of the date of
exercise of such option or right or as of the date the term with respect to such
option or right commences.
15.05 Waiver. Notwithstanding any assignment or sublease, or any
indulgences, waivers or extensions of time granted by Landlord to any assignee
or subtenant or failure of Landlord to take action against any assignee or
subtenant, Tenant hereby waives notice of any default of any assignee or
subtenant and agrees that Landlord may, at its option, proceed against Tenant
without having taken action against or joined such assignee or subtenant, except
that Tenant shall have the benefit of any indulgences, waivers and extensions of
time granted to any such assignee or subtenant.
15.06 Change in Control. If Tenant is a non-reporting or closely held
company, a change in the control of such company shall be deemed for the
purposes hereof to be an assignment of this Lease. If Tenant is a partnership, a
withdrawal or change, in one or more transfers, of partners owning more than a
fifty percent (50%) interest in the partnership, shall constitute an assignment.
Any such assignments shall be subject to the provisions of this Article XV.
Notwithstanding the foregoing, Tenant shall not be required to obtain the
consent of Landlord as described in Section 15.01 hereof (but all other
provisions of Section 15.01 not specifically relating to the obtaining of
Landlord's consent shall apply) to an assignment or subletting to a "Related
Party." A "Related Party" shall be a legal entity which controls Tenant, which
Tenant controls, or which is controlled by the same entity which controls
Tenant. "Control" shall mean the ownership of at least a fifty-one percent (51%)
equity interest. Tenant shall, however, notify Landlord in writing of an
assignment or subletting to a "Related Party" at least thirty (30) days prior to
the effective date of such assignment or subletting.
ARTICLE XVI: OFFSET STATEMENT, ATTORNMENT AND SUBORDINATION
16.01 Offset Statement. Within ten (10) days after request therefor by
Landlord, or if, in connection with any sale, assignment or hypothecation by
Landlord of Landlord's interest in the Premises, the Building and/or the
Project, or any part thereof, an offset statement or estoppel certificate shall
be required from Tenant, Tenant shall complete, execute and deliver a
certificate in the form attached hereto as Exhibit F or in such other form as
requested by Landlord to any proposed mortgagee or purchaser, and to Landlord,
certifying (if such be the case) (i) that this Lease is in full force and effect
without modification; (ii) the date of Tenant's most recent payment of Rent,
(iii) the amount of the Security Deposit; (iv) that Tenant has no defenses or
offsets outstanding, or stating those claimed by Tenant; and (v) any other
information contained in such Exhibit F or reasonably requested by Landlord or
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such proposed mortgagee or purchaser. Tenant's failure to deliver said statement
within said period shall, at Landlord's option, be an Event of Default hereunder
and shall in any event be conclusive upon Tenant that: (i) this Lease is in full
force and effect, without modification except as may be represented by Landlord;
(ii) there are no uncured defaults in Landlord's performance and Tenant has no
right to offset, counterclaim or deduction against Rent hereunder; (iii) no more
than one month's Base Rent has been paid in advance; and (iv) the Security
Deposit is as stated in the Lease.
16.02 Attornment. Tenant shall, in the event any proceedings are
brought for the foreclosure of, or in the event of exercise of the power of sale
under, any mortgage or deed of trust encumbering the Premises, the Building or
the Project, or any part thereof, made by Landlord, its successors or assigns,
or in the event of termination of a ground lease, if any, and if so requested,
attorn to the purchaser upon such foreclosure or sale or upon any grant of a
deed in lieu of foreclosure or to the lessor of such terminated ground lease and
recognize such purchaser or ground lease lessor as landlord under this Lease.
16.03 Subordination. The rights of Tenant hereunder are and shall be,
at the election of Landlord or any mortgagee or the beneficiary of a deed of
trust encumbering the Premises, the Building or the Project, subject and
subordinate to the lien of such mortgage or deed of trust, or the lien resulting
from any other method of financing or refinancing, now or hereafter in force
against the Premises, the Building or the Project, and to all advances made or
hereafter to be made upon the security thereof. At the election of Landlord or
any such mortgagee or beneficiary, this clause shall be self-operative and no
further instrument shall be required. Notwithstanding such subordination, so
long as Tenant is not in default under any of the terms, covenants and
conditions of this Lease, if requested by Tenant, Landlord shall make a
reasonable attempt to obtain from any mortgagee or beneficiary of a deed of
trust a nondisturbance agreement in favor of the Tenant for so long as the
Tenant is not in default under this Lease, and provided Tenant agrees in said
nondisturbance agreement to attorn to the said mortgagee or beneficiary in the
event it comes into possession of the Premises. Landlord need not incur any
expense or undertake any additional liability in attempting to obtain such a
nondisturbance agreement. If requested, Tenant agrees to execute whatever
documentation may be required to further effect the provisions of this Article
XVI.
16.04 Mortgagee's Rights. If Landlord shall notify Tenant that the
Premises, the Building or the Project are encumbered by a mortgage or deed of
trust, and in such notice set forth the name and address of the mortgagee or
beneficiary/trustee under such deed of trust, then, notwithstanding anything in
this Lease to the contrary, no notice intended for Landlord shall be deemed
properly given unless a copy thereof is simultaneously sent to such designee in
the manner provided in Section 18.01 hereof. If any mortgagee or
trustee/beneficiary shall perform any obligation that Landlord is required to
perform hereunder, such performance, insofar as Tenant is concerned, shall be
deemed performance on behalf of Landlord and shall be accepted by Tenant as if
performed by Landlord. Tenant further agrees that it shall not exercise any
right against Landlord without affording such mortgagee or trustee/beneficiary a
reasonable opportunity to cure any default of Landlord but that such mortgagee
or trustee/beneficiary is not obligated to undertake any action on Landlord's
behalf.
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16.05 Recording. Tenant covenants and agrees with Landlord that Tenant
shall not record this Lease. Notwithstanding the provisions of Section 16.03, in
the event that Landlord or its lender requires this Lease to be recorded in
priority to any mortgage, deed of trust or other encumbrance which may now or at
any time hereafter affect in whole or in part the Premises, the Building, or the
Project, and whether or not any such mortgage, deed of trust or other
encumbrance shall affect only the Premises, Building, or the Project, or shall
be a blanket mortgage, deed of trust or encumbrance affecting other premises as
well, Tenant covenants and agrees with Landlord that Tenant shall execute
promptly upon request from Landlord any certificate, priority agreement or other
instrument which may from time to time be requested to give effect thereto; and
Tenant hereby irrevocably appoints Landlord as its agent and attorney-in-fact
with full power and authority to execute and deliver such instruments for and in
the name of Tenant.
16.06 Release of Landlord. Whenever Landlord conveys its interest in
the Premises, the Building or the Project to a purchaser thereof or successor in
title, the party so conveying its interest shall be automatically released from
covenants thereafter to be performed on the part of Landlord herein contained,
and from any and all further liability, obligations, costs and expenses,
demands, causes of action, claims or judgments arising out of this Lease and
accruing from and after the effective date of said conveyance, it being the
intent of the parties hereto that the term "Landlord" as used in this Lease
shall mean only the then-current owner of the Premises. This Section 16.06 shall
be applicable to each owner from time to time, and shall not be limited to the
first owner of the Premises, the Building or the Project. If requested, Tenant
shall execute a form of release and such other documentation as may be required
to further effect the provisions of this Section. Failure to comply with such
request shall, at Landlord's option, constitute an Event of Default hereunder.
ARTICLE XVII: INDEMNIFICATION AND LIABILITY
17.01 Indemnification.
(a) Indemnified Claims. In addition to Tenant's promises of
indemnification provided elsewhere in this Lease, Tenant hereby indemnifies and
agrees to defend and hold harmless Landlord, its officers, employees and agents,
and any mortgagee or beneficiary/trustee under a deed of trust, from and against
any and all claims, suits, proceedings, actions, causes of action,
responsibility, liabilities, payments, demands and expenses (including legal
fees, expert fees, and other professional fees) in connection with or arising
from: (i) Tenant's possession, use, occupation, management, repair, maintenance
or control of the Premises, the Building or the Project, or any portion thereof;
(ii) any act, omission, negligence or willful misconduct of Tenant and/or
Tenant's Agents; (iii) any default, breach, violation or nonperformance of this
Lease or any provision therein by Tenant; and (iv) injury or damages to
person(s) or property or loss of life sustained in or about the Premises. Tenant
shall defend any actions, suits and proceedings which may be brought against
Landlord, its officers, employees or agents, or any mortgagee or
beneficiary/trustee under a deed of trust, with respect to the foregoing or in
which they may be impleaded, using legal counsel acceptable to Landlord, and
shall pay, satisfy and discharge any judgments, orders and decrees which may be
recovered against same. However, this indemnification shall not apply to any
liability to the extent caused by or resulting from the act, omission,
negligence or willful misconduct of Landlord, its officers, agents or employees
or any default, breach, violation or nonperformance of this Lease or any
provision therein by Landlord.
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(b) Notice of Claims. Landlord shall promptly notify Tenant of
any claims for which Landlord seeks indemnification pursuant to this Section
17.01.
(c) Parties Covered. Any indemnification of Landlord under
this Lease shall be deemed to extend to the entity named as Landlord in Section
1.01(a) hereof, and, in case Landlord shall be a joint venture, partnership,
tenancy-in-common, association, or other form of joint ownership, to the members
of any such joint venture, partnership, tenancy-in-common, association or other
form of joint ownership, and to all officers, directors, employees and agents,
and to all who succeed to Landlord's interest.
17.02 Waiver and Release.
(a) Claims Against Landlord. Tenant hereby waives and releases
all claims against Landlord with respect to all matters for which Landlord has
disclaimed liability pursuant to the provisions of this Lease.
(b) Landlord's Consent or Approval. Tenant will not be
entitled to make any claim, nor will Tenant make any claim, and Tenant waives
any claim, for money damages (nor will Tenant claim any money damages by way of
setoff, counterclaim or defense) based upon any claim or assertion by Tenant
that Landlord has unreasonably withheld or unreasonably delayed its consent or
approval with respect to any provision of this Lease providing for such consent
or approval. Tenant's sole remedy will be an action or proceeding to enforce any
such provision, or for specific performance, injunction or declaratory judgment.
However, unless otherwise expressly provided in this Lease, Landlord's consent
may be given or withheld in Landlord's sole discretion.
17.03 Liability of Landlord.
(a) Liability to Tenant. Neither Landlord nor any officer,
agent or employee of Landlord nor any mortgagee or beneficiary/trustee under a
deed of trust shall be liable to Tenant for (i) any injury or damage to Tenant
or to any other person, or (ii) any damage to, or loss (by theft or otherwise)
of, any property of Tenant or any other person, irrespective of the cause of
such injury, damage, or loss, unless caused by or due to the sole negligence or
willful misconduct of Landlord, its officers, agents or employees without
contributory negligence on the part of Tenant.
(b) No Personal Liability. Landlord (and, in case Landlord
shall be a joint venture, partnership, tenancy-in-common, association or other
form of joint ownership, the members of any such joint venture, partnership,
tenancy-in-common, association or other form of joint ownership) shall have
absolutely no personal liability with respect to any provision of this Lease, or
any obligation or liability arising therefrom or in connection therewith. Tenant
shall look solely to the equity of Landlord in the Project or to any insurance
which Landlord carries or which Landlord is obligated to provide under the terms
of this Lease for the satisfaction of any remedies of Tenant in the event of a
breach by Landlord of any of its obligations hereunder. Such limitation of
liability shall be absolute and without any exception whatsoever.
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(c) Tenant's Property. All property (whether real, personal or
mixed) at any time located in or upon the Premises shall be at the risk of
Tenant only, and Landlord shall not become liable for any damage to said
property or to Tenant, or to any other person or property therefor, or which may
be caused by water leakage, steam, sewerage, gas or odors or for any damage
whatsoever done or occasioned by or from any boiler, plumbing, gas, water, steam
or other pipes, or any fixtures or equipment or appurtenances whatsoever, or for
any damage arising from any act or neglect or arising by reason of the use of,
or any defect in the Premises or any of the fixtures, equipment or appurtenances
therein contained, or by the act or neglect of any other person or caused in any
other manner whatsoever, or occasioned by theft, Act of God, riot, strike or
other labor difficulty.
(d) Delays. Except as otherwise expressly provided herein,
this Lease and the obligations of Tenant hereunder shall be in no way affected,
impaired or excused because Landlord is unable to fulfill, or is delayed in
fulfilling, any of its obligations under this Lease.
ARTICLE XVIII: MISCELLANEOUS
18.01 Notices. All notices required to be given hereunder shall be in
writing and delivered to the other party by (i) certified or registered mail,
return receipt requested and postage prepaid, (ii) personal delivery against
signed receipt therefor by such carrier, or (iii) by overnight delivery by
recognized carrier, postage prepaid, against signed receipt therefor by such
carrier, to the appropriate address indicated in Section 1.01 hereof or at such
other place or places as either Landlord or Tenant may, from time to time,
respectively, designate in a written notice given to the other in accordance
with this Section. Notices shall be deemed sufficiently served upon the earlier
of actual receipt or the expiration of three (3) days after the date of mailing
thereof and one (1) day after posting with a recognized overnight carrier.
18.02 Successors Bound. This Lease and each of its covenants and
conditions shall be binding upon and shall inure to the benefit of the parties
hereto and their respective assignees, subject to the provisions hereof. Any
successor or assignee of the Tenant who accepts an assignment or the benefit of
this Lease and enters into possession or enjoyment hereunder shall thereby
assume and agree to perform and be bound by the covenants and conditions
thereof. Nothing herein contained shall be deemed in any manner to give a right
of assignment to Tenant without the prior written consent of Landlord and other
than in compliance with Article XV hereof.
18.03 Guarantor of Tenant. Any restriction on or requirement imposed
upon Tenant hereunder shall be deemed to extend to any guarantor of Tenant, and
to Tenant's subtenants, concessionaires and licensees, and it shall be Tenant's
obligation to cause the foregoing persons to comply with such restriction or
requirement.
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18.04 Waiver. No waiver of any default or breach of any covenant by
either party hereunder shall be implied from any omission by either party to
take action on account of such default if such default persists or is repeated,
and no express waiver shall affect any default other than the default specified
in the waiver, and said waiver shall be operative only for the time and to the
extent therein stated. Waivers of any covenant, term or condition contained
herein by either party shall not be construed as a waiver of any subsequent
breach of the same covenant, term or condition. The consent or approval by
either party to or of any act by either party requiring further consent or
approval shall not be deemed to waive or render unnecessary their consent or
approval to or of any subsequent similar acts.
18.05 Surrender of Premises and Holding Over. Upon expiration or other
termination of this Lease, Tenant shall immediately surrender possession of the
Premises to Landlord in substantially the same condition existing as on the
Commencement Date, reasonable wear and tear, damage by fire or other insured
casualty excepted (provided that all insurance proceeds are assigned to
Landlord), shall surrender to Landlord all keys for the Premises and shall
inform Landlord of all combinations on locks, safes and vaults, if any, in the
Premises. Should Tenant, or any of its successors in interest, hold over the
Premises or any part thereof after the expiration or earlier termination of this
Lease without Landlord's prior written consent, such holding over shall
constitute and be construed as tenancy at sufferance only, at a monthly rent
equal to one and one half (1.5) times the Base Rent owed during the final, full
calendar month of the Term of this Lease and otherwise upon the terms and
conditions in this Lease, so far as applicable. Should Tenant, or any of its
successors in interest, hold over the Premises or any part thereof after the
expiration or earlier termination of this Lease with Landlord's prior written
consent, such holding over shall constitute and be construed as a tenancy from
month to month only, at a monthly rent equal to one and one half (1.5) times the
Base Rent owed during the final month of the Term of this Lease and otherwise
upon the terms and conditions of this Lease, so far as applicable. The
acceptance by Landlord of Rent after such expiration or early termination shall
not result in a renewal or extension of this Lease or be deemed Landlord's
consent to any holding over. The foregoing provisions of this Section are in
addition to and do not affect Landlord's right of re-entry or any other rights
of Landlord hereunder or as otherwise provided by law. If Tenant fails to
surrender the Premises on the expiration of this Lease, Tenant shall indemnify,
defend and hold harmless Landlord from and against all loss and liability,
including without limitation, any damages suffered by Landlord due to Landlord's
inability to make the Premises available for occupancy by another party or any
claim made by any succeeding tenant, resulting from such failure to surrender by
Tenant and any legal fees and costs incurred by Landlord with respect to any
such claim.
18.06 Landlord's Right to Perform. Upon Tenant's failure to perform any
obligation of Tenant hereunder, including without limitation payment of Tenant's
insurance premiums, or charges to contractors who have supplied materials or
labor to the Premises, Landlord shall have the right, upon at least two (2)
Business Days prior notice to Tenant (except in the case of any emergency), to
perform such obligation of Tenant on behalf of Tenant and/or to make payment on
behalf of Tenant to such parties but shall have no obligation to do so. Tenant
shall reimburse Landlord the cost of Landlord's performing any such obligation
on Tenant's behalf, including reimbursement of any reasonable amounts that may
by expended by Landlord for legal fees and consulting fees, together with
interest at the Interest Rate from the date reimbursement is demanded until
payment is received in full.
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18.07 Subdivision and Easements. Landlord reserves the right to (i)
subdivide the Project or the land on which it is located, (ii) alter the
boundaries of the Project or the land on which it is located, and (iii) grant
easements on the Project or the land on which it is located, and dedicate for
public use portions thereof; provided, however, that no such grant or dedication
shall materially interfere with Tenant's use of the Premises or materially
reduce the type or quality of services provided by Landlord under this Lease.
Tenant hereby consents to such subdivision, boundary revision, and/or grant or
dedication of easements and agrees from time to time, at Landlord's request, to
execute, acknowledge and deliver to Landlord, in accordance with Landlord's
instructions, any and all documents, instruments, maps or plats necessary to
effectuate Tenant's consent thereto.
18.08 Landlord's Reserved Rights in Common Areas. Landlord reserves the
right from time to time, provided that Tenant's use and enjoyment of the
Premises or the type or quality of services provided by Landlord under this
Lease is not substantially and adversely affected thereby, to: (a) install, use,
maintain, repair and replace pipes, ducts, conduits, wires and appurtenant
meters and equipment for service to other parts of the Building above the
ceiling surfaces, below the floor surfaces, within the walls and in the central
core areas, and to relocate any pipes, ducts, conduit, wires and appurtenant
meters in the Premises which are so located or located elsewhere outside the
Premises; (b) make changes to the Common Areas and/or the parking facilities
located thereon, including, without limitation, change in the location, size,
shape and number of driveways, entrances, parking spaces, parking areas, loading
and unloading areas, ingress, egress, direction of traffic, landscaped areas and
walkways; (c) close temporarily all or any portion of the Common Areas and/or
the Building in order to perform any of the foregoing or any of Landlord's
obligations under this Lease, so long as reasonable access to the Premises
remains available during normal business hours; and (d) alter, relocate or
expand and/or to add additional structure and improvements to, or remove same
from, all or any portion of the Common Areas.
18.09 Rules and Regulations. At all times during the Term, Tenant shall
comply with Rules and Regulations for the Building and the Project, as set forth
in Exhibit G attached hereto, together with such amendments and supplements
thereto as Landlord may from time to time reasonably adopt and enforce in a
non-discriminatory fashion.
18.10 Parking. Tenant shall be entitled to the number of unreserved
vehicle parking spaces as set forth in Section 1.01(w) hereof; provided that a
portion of such spaces may be designated by Landlord as visitor parking for the
tenants of the Building and/or the Project. Except as otherwise designated by
Landlord, parking spaces shall be available for the common use of the tenants,
subtenants and invitees of the Project on a non-exclusive basis, subject to any
reasonable restrictions from time to time imposed by Landlord. Tenant shall not
use or permit its officers, employees or invitees to use any spaces which have
been specifically reserved by Landlord to other tenants or for such other uses
as have been designated by appropriate governmental entities as being restricted
to certain uses. Tenant shall at all times comply and cause its officers,
employees and invitees to comply with any parking Rules and Regulations as
Landlord may from time to time reasonably adopt.
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18.11 No Nuisance. Tenant shall conduct its business and control its
agents, employees, invitees and visitors in such a manner as not to create any
nuisance, or interfere with, annoy or disturb any other tenant or Landlord in
its operation of the Building or Project.
18.12 Relocation. At any time and from time to time after Tenant's
execution of this Lease, Landlord shall have the right, upon providing Tenant
thirty (30) days notice in writing, to provide Tenant with reasonably similar
space elsewhere in the Building of approximately the same size as the Premises
and to move Tenant to said space. In the event that Landlord shall exercise such
right subsequent to the actual occupancy of the Premises by Tenant, Landlord
shall arrange for moving Tenant and shall pay the costs of moving Tenant to such
new space and all other reasonable expenses related to such relocation.
Following any such relocation, this Lease, and each and all of the terms and
covenants and conditions hereof, shall remain in full force and effect and
thereupon be deemed applicable to such new space except that a revised floor
plan shall become part of this Lease and shall reflect the location of the new
space. Tenant's Share and Base Rent shall be adjusted to reflect the size of the
new premises, but such adjustment shall not increase the Base Rent by more than
five percent (5.0%), regardless of the size of the substituted premises. Should
Tenant refuse to move to such new space at the end of said thirty (30) day
period, Landlord shall have the right, in addition to exercising any other
remedies provided in this Lease, to terminate this Lease by notice given to
Tenant in writing within ten (10) days following the end of said thirty (30) day
period, which termination shall be effective sixty (60) days after the date of
the original notice of relocation by Landlord. Tenant shall continue to pay Rent
and perform all of its obligations hereunder until termination of this Lease.
18.13 Financial Statements. Tenant agrees, at the request of Landlord,
to furnish its current annual financial statements certified by its certified
public accountants, and, if applicable, such annual or quarterly reports as
Tenant may file with the Securities and Exchange Commission or any other
government agency.
18.14 Corporate Authority. Tenant represents that the undersigned
officer(s) or partner(s) have been duly authorized to enter into this Lease and
that the execution and consummation of this Lease by Tenant does not and shall
not violate any provision of any bylaws, certificate of incorporation,
partnership or agreement, or other agreement, order, judgment, governmental
regulation or any other obligations to which Tenant is a party or is subject.
18.15 Quiet Enjoyment. Subject to the provisions of this Lease and
conditioned upon the performance of all of the provisions to be performed by
Tenant hereunder, Landlord shall not during the Term hereof disturb the quiet
and peaceful possession of the Premises and all rights and privileges
appertaining thereto by Tenant hereunder.
18.16 Waiver of Jury Trial. Landlord and Tenant each agree to and they
hereby waive trial by jury in any action, proceeding or counterclaim brought by
either of the parties hereto against the other on any matter whatsoever arising
out of or in any way connected with the Lease, the relationship of Landlord and
Tenant, or Tenant's use or occupancy of the Premises, and any claim or injury or
damage and/or any statutory remedy.
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18.17 Broker. Tenant warrants that it has had no discussions,
negotiations and/or other dealings with any real estate broker or agent other
than the broker(s) listed in Section 1.01(e) hereof ("Broker") in connection
with the negotiation of this Lease, and that it knows of no other real estate
broker or agent who is or may be entitled to any commission or finder's fee in
connection with this Lease. Tenant agrees to indemnify, defend and hold harmless
Landlord from and against any and all claims, demands, losses, liabilities,
lawsuits, judgments, costs and expenses (including without limitation,
attorneys' fees and costs) with respect to any leasing commission or equivalent
compensation alleged to be owing on account of Tenant's discussion, negotiations
and/or dealings with any real estate broker or agent other than Broker. This
Section 18.17 is not intended to benefit any third parties and shall not be
deemed to give any rights to brokers or finders. Landlord shall pay any
commission(s) owing to Broker with respect to this Lease pursuant to a separate
agreement or agreements.
18.18 Accord and Satisfaction. No payment by Tenant or receipt by
Landlord of a lesser amount than the Rent herein stipulated shall be deemed to
be other than on account of the Rent, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment as Rent be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such Rent or pursue any
other remedy provided in this Lease.
18.19 Captions and Article Numbers. The captions, article and section
numbers and table of contents appearing in this Lease are inserted only as a
matter of convenience and in no way define, limit, construe or describe the
scope or intent or such sections or articles of this Lease nor in any way affect
this Lease.
18.20 Severability. If any term, covenant, condition or provision of
this Lease, or the application thereof to any person or circumstance, shall to
any extent be held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, covenants, conditions or provisions
of this Lease, or the application thereof to any person or circumstance, shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated.
18.21 Applicable Law. This Lease, and the rights and obligations of the
parties hereto, shall be construed and enforced in accordance with the laws of
the state in which the Premises are located.
18.22 Submission of Lease. The submission of this document for
examination and negotiation does not constitute an offer to lease, or a
reservation of or option for leasing the Premises. This document shall become
effective and binding only upon execution and delivery hereof by Landlord and
Tenant. No act or omission of any officer, employee or agent of Landlord or
Tenant shall alter, change, or modify any of the provisions hereof.
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18.23 Time. Time is of the essence of every provision hereto.
Notwithstanding the foregoing, Landlord shall not be liable for any delays
caused by events beyond Landlord's reasonable control ("Force Majeure"), and any
time limit provided herein for an action on Landlord's part shall be
automatically extended for the amount of any delay attributable to Force
Majeure. Force Majeure shall include all events beyond Landlord's reasonable
control, including without limitation: acts of God; strikes, lock-outs, riot or
civil commotion; act of war; fire or other casualty; requirements of governing
authorities or inability to obtain necessary governmental permits and approvals.
18.24 Entire Agreement. This Lease sets forth all covenants, promises,
agreements, conditions and understandings between Landlord and Tenant concerning
the Premises, the Building and the Project, and there are no covenants,
promises, agreements, conditions or understandings, either oral or written,
between Landlord and Tenant other than as are herein set forth. No subsequent
alteration, amendment, change or addition to the Lease shall be binding upon
Landlord or Tenant unless reduced to writing and signed by Landlord and Tenant.
18.25 Landlord's Management and Income Tax Provisions.
(a) Services Furnished. Any services which Landlord is
required to furnish pursuant to the provisions of this Lease may, at Landlord's
option, be furnished from time to time, in whole or in part, by employees of
Landlord or by Landlord's designated property management firm for the Project or
by one or more third parties, and Landlord further reserves the right to require
Tenant to enter into reasonable agreements with any such parties in form and
content approved by Landlord for the furnishing of such services.
(b) Income Tax Issues. Landlord shall have the right, at any
time and from time to time, to unilaterally amend the provisions of this Lease
if Landlord is advised by its legal counsel that all or any portion of the
monies paid by Tenant to Landlord under this Lease are, or may be deemed to be,
unrelated business income within the meaning of the United States Internal
Revenue Code, or regulations issued thereunder, and Tenant agrees to execute all
documents or instruments necessary to effect any such amendment, provided that
no such amendment shall result in Tenant being required to pay in the aggregate
more money on account of Tenant's occupancy of the Premises under the terms of
this Lease as so amended than Tenant's would otherwise have been required to pay
under this Lease if not so amended, and provided further that no such amendment
shall result in Tenant having less rights under this Lease as so amended than
Tenant would otherwise have had under this Lease if not so amended or receiving
less services or services of a lesser quality under this Lease as so amended
than Tenant would otherwise have received under this Lease if not so amended,
and provided further that no such amendment will cause an increase to Tenant's
tax liability.
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18.26 Exhibits. The following Exhibits are attached to this Lease after
the signatures and by reference hereto are incorporated herein:
Exhibit A - Description of Project
Exhibit B - Depiction of Premises
Exhibit C - Work Letter Agreement
Exhibit D - Notice of Commencement
Exhibit E - Building Janitorial Specifications
Exhibit F - Offset Statement and Estoppel Certificate
Exhibit G - Rules and Regulations
Exhibit H - Sublet Space
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
first above-written.
WITNESSED/ATTESTED BY: "LANDLORD"
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION
/s/ Carmen M. Pagan BY: /s/ Arend W. Taal
--------------------------- -------------------------------
Carmen M. Pagan Arend W. Taal
ITS: Associate Director
-------------------------------
"TENANT"
SEDONA CORPORATION
7/27/00 BY: /s/ William K. Williams
--------------------------- ------------------------------
William K. Williams
ITS: V.P. & CFO
-------------------------------
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EXHIBIT A
DESCRIPTION OF PROJECT
ALL THAT CERTAIN tract of land, situate in Upper Merion Township,
Montgomery County, Pennsylvania, bounded and described in accordance with Land
Title Survey, plan made for Rouse & Associates, South Gulph Road, Upper Merion
Township, Montgomery County, Pennsylvania, dated October 22, 1982, revised
January 24, 1983, prepared by Yerkes Associates, Inc., as Order #5593, as
follows:
Beginning at a point on the centerline of Gulph Road (LR 201, 60 feet
wide) marking a corner of this and a corner of land of Montgomery
County Industrial Development Authority, said point being at the
distance of 645.75 feet measured North 65 degrees 57 minutes West along
the centerline of Gulph Road from a point marking its intersection with
the physical centerline of Valley View Road; thence from said beginning
point extending along the centerline of Gulph Road, South 65 degrees 57
minutes East 892.94 feet to point; thence leaving Gulph Road by land of
Robert and Anton Lankford, passing 0.19 feet West of a concrete
monument set at the distance of 29.82 feet, South 18 degrees 18 minutes
West 230.14 feet to a point, said point being 0.07 feet Westerly from
and 0.26 feet Southerly from a concrete monument; thence still by land
of Lankford, South 65 degrees 57 minutes East 100.52 feet to a point,
said point being 0.16 feet Westerly from and 0.31 feet Southerly from a
concrete monument; thence by land of Brotherhood Temple Brith Achim,
South 18 degrees 18 minutes West 352.85 feet to a point on the
Northerly right-of-way line of the Schuylkill Expressway (LR 679, 120
feet wide), last mentioned point being 3.41 feet Southerly from and
0.36 feet Westerly from a concrete monument; thence along the Northerly
right-of-way line of the Schuylkill Expressway, along a line curving to
the right with a radius of 8534.42 feet, the arc distance of 978.79
feet to a concrete monument at highway station 64+27.31, the chord of
said arc being measured North 74 degrees 59 minutes 28 seconds West
978.26 feet; thence leaving the Schuylkill Expressway by land of South
Gulph Road Associates and land of Montgomery County Industrial
Development Authority crossing a concrete monument at the distance of
712.28 feet, from the beginning of this line, North 17 degrees 23
minutes East 738.78 feet to the first mentioned point and place of
beginning.
CONTAINING Fourteen and Five Hundred Eighty-Five One Hundredths part of
an acre (14.585 acres), be the same more or less.
Being Assessment Parcel number 58-00-1732y-00-1.
-A1-
<PAGE>
EXHIBIT B
DEPICTION OF PREMISES
(Attach Floor Plan)
-B1-
<PAGE>
EXHIBIT C
WORK LETTER AGREEMENT
THIS WORK LETTER AGREEMENT (this "Agreement") is entered into as of
this ________day of ________________________, 2000, by and between TEACHERS
INSURANCE AND ANNUITY ASSOCIATION ("Landlord") and SEDONA CORPORATION
("Tenant").
RECITALS:
A. Concurrently with the execution of this Agreement, Landlord and
Tenant have entered into a lease (the "Lease") covering certain premises (the
"Premises") more particularly described in Exhibit B attached to the Lease. The
Lease provides for the construction by Landlord of Tenant Improvements (as
defined in the Lease) to the Premises.
B. In order to induce Tenant to enter into the Lease, Landlord has
agreed to make certain improvements to the Premises in accordance with the terms
and upon the conditions set forth in this Agreement. The Lease is hereby
incorporated into this Agreement by reference to the extent applicable and
capitalized terms not otherwise defined herein shall have the same meaning given
to them in the Lease.
NOW, THEREFORE, in consideration of the Lease and the mutual covenants
hereinafter contained, Landlord and Tenant hereby agree as follows:
1. TENANT IMPROVEMENTS. Reference herein to "Tenant Improvements" shall
include all work to be done in the Premises pursuant to the Tenant Improvement
Plans (defined in Paragraph 2 below), other than the Common Corridor Work (as
hereinafter defined) and Sprinkler Head Replacement Work (as hereinafter
defined), including (to the extent set forth in the Tenant Improvement Plans)
but not limited to: partitioning, doors, ceilings, floor coverings, wall
finished (including paint and wall covering), electrical (including lighting,
switching, telephones, outlets, etc.), plumbing, heating, ventilating and air
conditioning, fire protection, cabinets and other millwork.
2. TENANT IMPROVEMENT PLANS. Landlord and Tenant have approved a
preliminary plan for the Premises, a copy of which is attached hereto as
Schedule I (the "Space Plan"). Upon Tenant's submission to Landlord of an
invoice from Tenant's architect for the preparation of the Space Plan, plus
proof reasonably acceptable to Landlord of the payment thereof by Tenant,
Landlord shall reimburse Tenant for the cost of the Space Plan, up to a maximum
reimbursement of $1,320.80. In addition, Landlord and Tenant have approved the
working drawings and specifications for the Tenant Improvements described on
Schedule II attached hereto and made a part hereof (the "Tenant Improvement
Plans"), which Tenant Improvement Plans have been prepared by Tenant's
architect. Upon Tenant's submission to Landlord of an invoice from Tenant's
architect for the preparation of the Tenant Improvement Plans, plus proof
reasonably acceptable to Landlord of the payment thereof by Tenant, Landlord
shall reimburse Tenant, up to a maximum reimbursement of $12,382.50, for the
cost of the Tenant Improvement Plans, other than the cost of engineering of the
Tenant Improvement Plans for mechanical, electrical and plumbing systems serving
the Premises, and for the circulation of heat and air conditioning throughout
the Premises, prepared by a licensed engineer or engineers approved by Landlord
(the "Engineering Cost").
-C1-
<PAGE>
3. CONSTRUCTION OF TENANT IMPROVEMENTS. The Tenant Improvement Plans
shall be submitted by Landlord to the appropriate governmental body for plan
checking and the issuance of a building permit. Tenant shall cause to be made to
the Tenant Improvement Plans any changes necessary to obtain the building
permit. After final approval of the Tenant Improvement Plans by applicable
governmental authorities, no further changes may be made thereto without the
prior written approval of both Landlord and Tenant, and then only after
agreement by Tenant to pay any excess costs resulting from the design and/or
construction of such changes. Landlord shall solicit competitive bids from at
least three (3) general contractors designated by Landlord (subject to Tenant's
approval, which shall not be unreasonably withheld or delayed) for the Initial
Tenant Work, and the contract for the Initial Tenant Work shall, unless
otherwise instructed by Tenant, be awarded to the general contractor submitting
the lowest bid in accordance with the bid documents. After a building permit for
the Tenant Improvements has been issued, Landlord shall cause such general
contractor to begin installation of the Tenant Improvements in accordance with
the Tenant Improvement Plans. Landlord shall supervise the completion of such
work and shall diligently pursue substantial completion of the work. Landlord
shall have the right to substitute comparable materials or finishes in the event
such items are unavailable, but, to the extent practicable, shall obtain
Tenant's prior consent thereto, which consent shall not be unreasonably withheld
or delayed. Landlord shall in no event be liable for any direct or indirect
damages as a result of delays in construction due to Force Majeure, or due to
delays or other acts or omissions by Tenant (or its architect or anyone
performing services on behalf of Tenant).
4. PAYMENT FOR THE TENANT IMPROVEMENTS. The cost for
construction of the Tenant Improvements shall be paid as follows:
(a) Landlord hereby grants to Tenant an allowance for
construction of the Tenant Improvements (the "Tenant Improvement Allowance") of
$379,730.00. The Tenant Improvement Allowance shall only be used for:
(i) Payment of the Engineering Cost.
(ii) The payment of plan checking by government
authorities and for permits and license fees relating to construction of the
Tenant Improvements.
(iii) Demolition of existing improvements in the
Premises required in connection with construction of the Tenant Improvements.
(iv) Construction of the Tenant Improvements,
including, without limitation, the following:
(aa) Demolition of existing improvements in
the Premises and removal of debris resulting from such demolition;
(bb) Installation within the Premises of all
partitioning, doors, floor coverings, ceilings, wall coverings and painting,
millwork and similar items;
(cc) All electrical wiring, lighting
fixtures, outlets and switches, and other electrical work to be installed within
the Premises;
-C2-
<PAGE>
(dd) The furnishing and installation of all
duct work, terminal boxes, diffusers and accessories required for the completion
of the heating, ventilation and air conditioning systems within the Premises,
including the cost of meter and key control for after-hour air conditioning;
(ee) Any additional Tenant requirements
including, but not limited to, odor control, special heating, ventilation and
air conditioning, noise or vibration control or other special systems;
(ff) All fire and life safety control
systems such as fire walls, sprinklers, halon, fire alarms, including piping,
wiring and accessories, installed within the Premises;
(gg) All plumbing, fixtures, pipes and
accessories to be installed within the Premises;
(hh) Testing and inspection costs;
(ii) Contractor's fees, including but not
limited to any fees based on general conditions; and
(jj) Telephone and data cabling.
(v) All other costs incurred by Landlord in the
construction of the Tenant Improvements, including those costs incurred by
Landlord for construction of elements of the Tenant Improvements in the
Premises, which construction was performed by Landlord prior to the execution of
the Lease by Landlord and Tenant and which construction is for the benefit of
tenants and is customarily performed by Landlord prior to the execution of
leases for space in the Building for reasons of economics; examples of such
construction would include but not be limited to the extension of mechanical
(including heating, ventilating and air conditioning systems) and electrical
distribution systems outside of the core of the Building, wall construction,
column enclosures and painting outside of the core of the Building, ceiling
hanger wires and window treatment.
(vi) Costs arising from changes attributable to
Tenant pursuant to subparagraph (c) below.
(vii) The fee described in subparagraph (e) below.
(b) The cost of each item referenced in Paragraph 4(a) above
shall be charged against the Tenant Improvement Allowance. In the event that the
actual cost of installing the Tenant Improvements shall exceed the Tenant
Improvement Allowance, or if any of the Tenant Improvements are not to be paid
out of the Tenant Improvement Allowance as provided in Paragraph 4(a) above, the
excess shall be paid by Tenant to Landlord upon Landlord's demand therefor. If
Tenant shall fail to pay such excess amount(s) within five (5) business days of
demand from Landlord therefor, such failure shall be an Event of Default under
the Lease and Landlord may, at its option, terminate the Lease and all of its
obligations thereunder and/or pursue any other remedy provided in the Lease.
-C3-
<PAGE>
(c) If, after the Tenant Improvement Plans have been agreed
upon, Tenant shall require any changes or substitutions to the Tenant
Improvement Plans, and Landlord consents to make such changes, then any
additional design and/or construction costs related to approved changes shall
(to the extent in excess of the unused Tenant Improvement Allowance) be paid by
Tenant to Landlord upon Landlord's demand therefor. Landlord shall have the
right to decline Tenant's request for a change to the Tenant Improvement Plans
if the change would, in Landlord's opinion, unreasonably delay construction of
the Tenant Improvements.
(d) Any unused portion of the Tenant Improvement Allowance
upon completion of the Tenant Improvements shall not be refunded to Tenant or
available to Tenant as a credit against any obligations of Tenant under the
Lease.
(e) Tenant shall pay to Landlord's designated Building
management firm a fee of three percent (3%) of the Finish Costs as compensation
for coordination and oversight of the Work by such Building management firm.
5. COMMON CORRIDOR WORK AND SPRINKLER HEAD REPLACEMENT. Landlord, at
Landlord's sole expense (and not payable out of the Tenant Improvement
Allowance), shall, contemporaneously with the performance of the Tenant
Improvements, construct the common multi-tenant corridor providing access to the
Premises at the Location shown on the Tenant Improvement Plans (the "Common
Corridor Work"), and replace all sprinkler heads of the sprinkler system located
in the Premises currently existing as of the date hereof, which sprinkler heads
are not being removed or relocated in connection with the Tenant Improvements
(the "Sprinkler Head Replacement"). The Common Corridor Work shall include the
following:
(a) construction of metal studs (the "Corridor Stud Work");
(b) installation of one (1) Building standard door to the
Premises;
(c) construction of sheetrock and finish walls on the corridor
side of the Corridor Stud Work (it being specifically understood and agreed that
installation of sheetrock and finish walls on the Premises side of the Corridor
Stud Work shall be part of the Tenant Improvements); and
(d) Installation of Building standard ceiling and floor
finishes in the corridor.
6. TENANT'S ACCESS DURING TENANT IMPROVEMENT WORK. Tenant shall be
permitted access to the Premises, upon reasonable prior notice to Landlord and
subject to Landlord's scheduling requirements to avoid interruption of or
interference with the Tenant Improvements, prior to the Commencement Date solely
for the purpose of allowing Tenant to install voice and data cabling. Such early
access shall be at Tenant's sole risk. Such early access shall be granted upon
the condition that Tenant's employees, agents or servants shall not interfere
with performance of the Tenant Improvements. Such early access shall be subject
to all of the terms, covenants, provisions and conditions of this Lease (except
for the obligation to pay Rent). Landlord shall not be liable in any way for any
injury, loss or damage occurring as a result of Tenant's early access to the
Premises. Landlord shall have the right to impose such additional reasonable
conditions on Tenant's early access to the Premises as Landlord, in its sole
discretion, deems appropriate. Landlord shall cause the general contractor to
coordinate with the contractor engaged by Tenant to install such cabling so as
to facilitate the installation of such cabling.
-C4-
<PAGE>
7. AMERICANS WITH DISABILITIES ACT. In installing the Tenant
Improvements, Landlord shall comply with the Americans with Disabilities Act of
1990 (the "ADA"). With respect to any alterations or improvements that Tenant
makes to the interior of the Premises (or which are made on Tenant's behalf),
other than the Tenant Improvements, regardless of whether Tenant has obtained
Landlord's consent to such alterations or improvements, Tenant shall be fully
responsible for complying with and paying any costs associated with any and all
requirements of the ADA. In addition, if any alterations are required to be made
to the Premises due to changes in or regulations under the ADA or judicial
interpretations of the requirements of the ADA coming into existence following
completion of the Tenant Improvements, or due to changes in Tenant's use of the
Premises or in the nature of Tenant's conduct of its business in the Premises
(including but not limited to any changes in use or business conduct arising out
of a sublease or assignment, or resulting in the Premises being deemed a "place
of public accommodation" under the ADA), Tenant shall be fully responsible for
complying with and paying any costs associated with any and all requirements of
the ADA arising in connection therewith.
8. TENANT'S RESPONSIBILITY FOR CHARGES. In the event Landlord
terminates the Lease because of Tenant's failure to cooperate or timely respond
as set forth in this Agreement, then, in addition to all rights and remedies
available to Landlord in the Lease, Landlord shall have the right to require
Tenant to reimburse Landlord for all of its expenses incurred in preparation of
the Space Plans and the Tenant Improvement Plans, and in obtaining governmental
approval of same, and in installing any of the Tenant Improvements, and in
performing the Common Corridor Work, which amount shall accrue interest at the
Interest Rate from the date of termination of the Lease until paid in full,
together with all legal fees incurred in enforcement of Landlord's rights
hereunder.
9. COMPLETE AGREEMENT. This Agreement and the applicable provisions of
the Lease are the complete and entire agreement of Landlord and Tenant with
respect to the Tenant Improvements and construction thereof at the Premises.
This Agreement may not be amended except by written agreement signed by Landlord
and Tenant. Oral modifications to the Agreement shall not be effective.
-C5-
<PAGE>
SCHEDULE I
----------
Space Plan
"Space Plan" prepared by Polek Schwartz Architects, Project No. 20.700.30,
Drawing P-2, dated June 24, 2000, revised June 27, 2000.
-C6-
<PAGE>
SCHEDULE II
-----------
Tenant Improvement Plans
"Architectural Floor Plan" prepared by Polek Schwartz Architects, Project No.
20.700.36, Drawing A-1, dated July 11, 2000.
"Reflected Ceiling Plan" prepared by Polek Schwartz Architects, Project No.
20.700.36, Drawing A-2, dated July 11, 2000.
"Electrical/Finish Plan" prepared by Polek Schwartz Architects, Project No.
20.700.36, Drawing A-3, dated July 11, 2000.
-C7-
<PAGE>
EXHIBIT D
NOTICE OF COMMENCEMENT OF LEASE
This Notice of Commencement of Lease is given this _______________,
20__, by TEACHERS INSURANCE AND ANNUITY ASSOCIATION ("Landlord") to ("Tenant"),
both of whom who agree as follows:
1. Landlord and Tenant have entered into a lease dated _______________,
20__, (the "Lease"), in which Landlord leased to Tenant and Tenant lease from
Landlord the premises described therein (the "Premises"). All capitalized terms
used herein and not otherwise defined herein shall have the same meaning given
to them in the Lease.
2. Pursuant to the Lease, Landlord and Tenant agreed to, and do hereby
confirm, the following matters as of the commencement of the Term:
(a) ___________________, 20__, is the Commencement Date of the
Term of the Lease; and
(b) ___________________, 20__, is the Expiration Date of the
Term of the Lease.
3. Tenant confirms that:
(a) It has accepted possession of the Premises;
(b) The Tenant Improvements required to be furnished by
Landlord under the Lease have been completed (subject to any corrective work or
punch-list items of which Tenant has notified Landlord in accordance with the
Lease);
(c) Landlord has fulfilled all of its duties of an inducement
nature;
(d) No modifications have been made to the Lease after it was
signed by Landlord and Tenant; and
(e) There are no setoffs or credits against Rent, and no Rent
(other than the first monthly installment of Base Rent) has been prepaid.
4. This Notice of Commencement of Lease is intended only to confirm the
matters herein set forth and does not otherwise modify or supplement the Lease.
-D1-
<PAGE>
5. Unless written objection to the provisions hereof is received by
Landlord within five (5) business days from the date hereof, the provisions of
this Notice of Commencement of Lease shall be binding upon Tenant, its
successors and assigns (subject to the restrictions on assignment and subleasing
contained in the Lease), and inure to the benefit of Landlord, and its
successors and assigns.
"LANDLORD"
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION
BY:__________________________________________
ITS:_________________________________________
-D2-
<PAGE>
EXHIBIT E
---------
BUILDING JANITORIAL SPECIFICATIONS
DAILY
-----
1. Empty and clean all waste receptacles. Remove waste from premises. Wash
interior of waste cans when necessary. Liners furnished by Landlord and
replaced as needed.
2. Dust and polish office furniture with treated cloths. Wipe down table
tops and counters. (Exposed surfaces only)
3. Spot clean woodwork and partitions; including any glass partitions.
4. Dry mop resilient floors with treated mops.
5. Water fountains are to be wiped down.
6. Telephones to be wiped down.
7. Damp mop all hard composition floors.
8. Vacuum carpeted areas, spot cleaned as needed.
9. Sweep and damp mop stairwells.
10. Clean common area washrooms:
a. Sweep, then wet mop floors with solution which incorporates a
disinfectant and a deodorizer.
b. Wash and sanitize all fixtures in washrooms with antiseptic
solution and scouring powder where necessary, to remove
stains.
c. Clean all urinals and commodes with disinfectant.
d. Wash both sides of commode seats with disinfectant solution.
e. Polish flushmaster, piping, commode hinges and other bright
work including mirrors.
f. Wash down stalls from trim to floor with solution and treat
with liquid finish as needed.
g. Fill and maintain mechanical operation of all towel, tissue
and soap dispensers.
h. All bathroom mirrors are to be cleaned daily.
-E1-
<PAGE>
MONTHLY
-------
1. Very high spots (i.e. paintings, bookshelves, etc.) are to be dusted.
2. Window sills are to be cleaned.
3. Vacuum clean all vents and air diffusers.
4. Dust all surfaces not normally reached in nightly cleaning.
5. All bathroom floors will be stripped and cleaned.
SEMI-ANNUALLY
-------------
1. Wash windows in and out.
2. Strip and wax tile floors.
3. Dust blinds.
-E2-
<PAGE>
EXHIBIT F
---------
OFFSET STATEMENT AND ESTOPPEL CERTIFICATE
------------------------
------------------------
------------------------
------------------------
Re: Lease dated _____________________________ ("Lease") by and between
TEACHERS INSURANCE AND ANNUITY ASSOCIATION ("Landlord") and
________________________ ("Tenant")
Sir/Madam:
Reference is made to the above-described Lease in which the undersigned
is Tenant. We understand that you are accepting an assignment of Landlord's
rights under the Lease as _________________________________ , and we hereby, as
a material inducement for you to consummate the transaction, represent that:
1. A true and correct copy of the Lease is attached hereto as Schedule
"A" and incorporated herein by reference thereto. There are no modifications,
amendments, supplements, arrangements, side letters or understandings, oral or
written, of any sort, modifying, amending, altering, supplementing or changing
the terms of the Lease, except for those attached hereto as part of Schedule
"A".
2. The Lease is for a term of _________________________ commencing on
______________, 20__, and ending as of 11:59 P.M. on __________________________,
and the Lease covers the real property (the "Premises") described in Exhibit A
attached to the Lease, the Premises being part of certain real property (the
"Property") located in ______________________, County of _____________________,
State of ______________, and more particularly described in Exhibit B attached
to the Lease.
3. The Lease is in full force and effect, and the Lease has been duly
executed and delivered by, and is a binding obligation of, Tenant as set forth
therein.
4. The undersigned acknowledges (a) that rent on the Lease has been
paid up to and including _____________________________, 20__, (b) that monthly
Base Rent (as defined in the Lease) during the remaining term of the Lease is
$__________________ , and (c) that rent has not been paid for any period after
__________________, 20__, and shall not, except for any prepaid rent as
specified in the Lease, be paid for a period in excess of one (1) month in
advance.
5. To the best knowledge of the undersigned, the improvements on the
Premises are free from defects in design, materials and workmanship; and the
improvements meet all governmental requirements, including, but not limited to,
zoning and environmental requirements.
6. To the best knowledge of the undersigned, the Lease is not in
default, and Landlord has performed the obligations required to be performed by
Landlord under the terms thereof through the date hereof.
-F1-
<PAGE>
7. The Lease shall be subordinate to a deed of trust or mortgage on the
Premises and an assignment of Landlord's interest in the Lease given by Landlord
to _______________________; and in the event of a merger of Landlord and Tenant
in any manner, the interest of Tenant and Landlord shall not merge.
8. Tenant agrees not to modify, amend, terminate or otherwise change
the Lease without ten (10) days prior written notice to you.
9. In the event of a default by Landlord under any of the terms or
provisions of the Lease, Tenant shall give you adequate notice and reasonable
time to cure such default before Tenant shall exercise any right or remedy
available to it.
Dated ____________________ __ , 20__.
Very truly yours,
"Tenant"
BY:__________________________________________
ITS:_________________________________________
-F2-
<PAGE>
EXHIBIT G
---------
RULES AND REGULATIONS
1. The streets, sidewalks, entrances, lobbies, elevators, stairways,
public corridors and other Common Areas provided by Landlord shall be used only
as means of ingress and egress and shall remain unobstructed at all times. The
entrance and exit doors of all suites are to be kept closed at all times except
as required for orderly passage to and from a suite. At the close of business
each day, Tenant shall turn off all lights and office equipment in the Premises
and lock all entrance and exit doors of the Premises. Loitering in any part of
the Building or obstruction of any means of ingress or egress shall not be
permitted. No smoking or eating shall be permitted in the Common Areas. Tenant
shall not cover or obstruct any window, skylight, door or transom that admits
light. Tenant shall not place door mats in any public corridors.
2. Plumbing fixtures, toilet rooms, water closets and other water
apparatus shall not be used for any purposes other than those for which they
were constructed, and no rubbish, food products, newspapers, trash or other
substances of any kind shall be thrown into them. No cleaning of coffee pots,
dishes, utensils, etc., shall be permitted in common lavatory sinks. Walls,
floors, ceilings, elevators, lavatories, windows and/or doors shall not be
defaced in any way and no one shall be permitted to mark, drive nails or screws,
or drill into, paint, or in any way mar any Building surface, except that
pictures, certificates, licenses and similar items normally used in Tenant's
business may be carefully attached to the interior walls of the Premises by
Tenant in a manner to be prescribed by Landlord. Upon removal of such items by
Tenant any damage to the walls or other surfaces, except minor nail holes, shall
be repaired by Tenant at Tenant's sole cost.
3. No awning, shade, sign, advertisement or notice shall be inscribed,
painted, displayed or affixed on, in or to any window, door or any other part of
the outside or inside of the Building or the Premises, including without
limitation any roof setbacks, window ledges and other projections. No window
displays or other public displays shall be permitted without the prior written
consent of Landlord. All tenant identification on public corridor doors will be
installed by Landlord with the size and type of letters to be prescribed by
Landlord. The directory of the Building will be provided exclusively for the
names and locations of tenants only and Landlord reserves the right to exclude
all other names therefrom. All requests for listing on the Building directory
shall be submitted to the office of Landlord in writing. Landlord reserves the
right to approve all listing requests. Any change requested by Tenant of
Landlord of the name or names posted in the directory, after initial posting,
will be charged to Tenant.
4. The cost of any special electrical circuits for items such as
copying machines, computers, microwaves, etc., shall be borne by Tenant. Prior
to installation of any equipment requiring special electrical circuits or
extraordinary utility usage Tenant must receive written approval from Landlord.
5. The weight, size and position of all safes and other unusually heavy
objects used or placed in the Building shall be prescribed by Landlord and
shall, in all cases, stand on metal plates of such size as shall be prescribed
by Landlord. The repair of any damage done to the Building or property therein
by putting in or taking out or maintaining such safes or other unusually heavy
objects shall be paid for by Tenant.
-G1-
<PAGE>
6. All freight, furniture, fixtures and other personal property shall
be moved into, within and out of the Building at times designated by and under
the supervision of Landlord and in accordance with such regulations as may be
prescribed by Landlord. In no event will Landlord be responsible for any loss or
damage to such freight, furniture, fixtures or personal property from any cause.
7. No improper noises, vibrations or odors will be permitted in the
Building, nor shall any person be permitted to interfere in any way with tenants
or those having business with them or otherwise to do anything that might tend
to injure the reputation of the Building. No singing or playing or operating of
any musical instrument, radio or television in the Building shall be permitted
without the consent of Landlord. No person will be permitted to bring or keep
within the Building any animal, bird or bicycle. No person shall throw trash,
refuse, cigarettes or other substances of any kind any place within or out of
the Building except in the refuse containers provided therefor. Landlord
reserves the right to exclude or expel from the Building any person who, in the
judgment of Landlord, is intoxicated or under the influence of liquor or drugs
or who shall in any manner do any act in violation of the rules and regulations
of the Building. No portion of the Building or the Premises shall be used for
living or sleeping quarters. Tenant shall not manufacture in the Premises any
commodity, or prepare or dispense any foods or beverages, tobacco, drugs,
flowers or other commodities or articles without the prior written consent of
Landlord.
8. All re-keying of office doors, after occupancy, will be at the
expense of Tenant. Tenant shall not re-key any doors or install additional
locks, bolts or security systems therein without making prior arrangements with
Landlord. Tenant shall not secure duplicate keys for the Building or the
Premises, except from Landlord.
9. Tenant will not install or use any window coverings except those
provided or approved by Landlord, nor shall Tenant use the balconies or any
portion of the Common Areas, if any, for storage, barbecues, drying of laundry
or any other activity which would detract from the appearance of the Building or
interfere in any way with the use of the Building by other tenants.
10. Any tenant using the Building after normal business hours or on
non-business days shall lock any entrance doors to the Building used by Tenant
immediately after entering or leaving the Building. Normal business hours for
the Building shall be Monday through Friday 8:00 a.m. to 6:00 p.m. Landlord
reserves the right to exclude the general public from the Building upon such
days and at such hours as in Landlord's judgment will be for the best interest
of the Building and its tenants. Persons entering the Building after 6:00 p.m.
on business days and at all times on weekends and holidays must sign the
register, if any, maintained for that purpose.
11. Tenant shall be deemed to have read these Rules and Regulations and
to have agreed to abide by them as a condition to Tenant's occupancy of the
Premises.
12. Tenant and Tenant's employees, agents, invitees, etc., shall not
use more than the number of Parking Spaces set forth in the Lease for use by
Tenant (after allowance is made by Landlord, from time to time, for visitor
parking).
13. Tenant and Tenant's employees, agents, invitees, etc., shall not
hang or display any items from the Building's balconies, if any, or permit any
furniture or other items to be place or stored thereon, without the prior
written consent of Landlord.
-G2-
<PAGE>
14. If Tenant requires telegraphic, telephonic, burglar alarm or
similar services, it shall first obtain, and comply with, Landlord's instruction
in their installation.
15. The Building freight elevator(s), if any, shall be available for
use by all tenants in the Building, subject to such reasonable scheduling as
Landlord, in its discretion, shall deem appropriate. No equipment, materials,
furniture, packages, supplies, merchandise or other property will be received in
the Building or carried in the elevators except between such hours and in such
elevators as may be designated by Landlord. Tenant's initial move in and
subsequent deliveries of bulky items, such as furniture, safes and similar items
shall, unless otherwise agreed by Landlord, be made during the hours of 6 p.m.
and 6 a.m. or on Saturday or Sunday, and on at least 24 hours prior written
notice to Landlord. Deliveries during normal hours shall be limited to normal
office supplies and other small items. No deliveries shall be made which impede
or interfere with other tenants or the operation of the Building.
16. Except as may be otherwise approved by Landlord in writing, Tenant
shall not use any method of heating or air conditioning other than that supplied
by Landlord.
17. Tenant shall not waste electricity, water or air conditioning and
agrees to cooperate fully with Landlord to assure the most effective and
cost-effective and cost-efficient operation of the Building's heating and air
conditioning and to comply with any governmental energy-saving rules, laws or
regulations of which Tenant has actual notice, and shall refrain from attempting
to adjust controls in an unauthorized manner. Tenant shall keep corridor doors
closed, and shall close window coverings at the end of each business day.
18. Tenant shall not obtain for use on the Premises ice, drinking
water, food, beverages, towel or other similar services or accept barbering or
bootblacking service upon the Premises, except at such hours and under such
regulations as may be fixed by Landlord, if any.
19. Tenant shall store all its trash and garbage within the Premises or
in other facilities provided by Landlord. Tenant shall not place in any trash
box or receptacle any material which cannot be disposed of in the ordinary and
customary manner of trash and garbage disposal. All garbage and refuse disposal
shall be made in accordance with directions issued from time to time by
Landlord.
20. Canvassing, soliciting and distribution of handbills or any other
written material and peddling in the Building are prohibited, and Tenant shall
cooperate to prevent such activities. Tenant shall not use the name of the
Building in any way in connection with its business except for Tenant's address.
Landlord shall also have the right to prohibit any advertising by Tenant, which,
in Landlord's opinion, tends to impair the reputation of the Building or its
desirability as a building for offices; and upon written notice from Landlord,
Tenant shall refrain from or discontinue such advertising.
21. Tenant assumes any and all responsibility for protecting the
Premises from theft, robbery and pilferage, which includes keeping doors locked
and other means of entry to the Premises closed.
22. Except with the written consent of the Landlord, no person or
persons other than those approved by Landlord shall be permitted to enter the
Building or the Premises for the purpose of cleaning the same and such person or
persons shall, while in the Building and outside the Premises, comply with all
instructions issued by the Building superintendent and/or Building engineer. No
tenant shall cause any unnecessary labor by reason of such tenant's carelessness
or indifference in the preservation of good order and cleanliness. Landlord
shall not be responsible to Tenant for any loss of property on the Premises,
however occurring, or for any damage done to the effects of Tenant by the
janitor or any other employee or any other person.
-G3-
<PAGE>
23. Tenant shall be responsible for the observance of all of the
foregoing rules by Tenant's employees, agents, clients, customers, invitees and
guests, and shall be liable to Landlord for all acts of such persons committed
in the Building.
24. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the agreements,
covenants, conditions and provisions of the Lease.
25. Landlord shall have the right to make such other and further
reasonable Rules and Regulations as in the judgment of Landlord may from time to
time be needful for the safety, appearance, care and cleanliness of the Building
and for the preservation of good order therein. Landlord shall not be
responsible to Tenant for any violation of Rules and Regulations by other
tenants. Such other and further Rules and Regulations shall become effective
thirty (30) days after prior written notice thereof from Landlord to Tenant.
-G4-
<PAGE>
EXHIBIT H
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Sublet Space
------------
-H1-
<PAGE>
SCHEDULE III
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EXECUTIVE TERRACE
BUILDING STANDARD SPECIFICATIONS
1. Design Services: Landlord's architect or Landlord will determine
substantial completion.
2. Ceilings: 2' x 2' regular edge fissured white (mineral
fiber) acoustical lay-in panel; suspended, exposed
"T" framing system; non-directional design, finish
height in Tenant area +/- 8'4". There are duct
work restrictions at a limited area thru-out the
building that will restrict ceiling height to
8'0".
3. Carpet: Tenant can select from available colors of
building standard 28 oz. face weight, level loop
carpets, installed by direct glue down method and
4" high vinyl base molding in standard colors.
4. Partitions: a) Interior partitions shall be 3 5/8" metal stud
25 gauge partitions with 5/8" drywall each
side, slab to underside of finished ceiling
with Raco top reveal and cove base shall be
installed on each side, in a quantity not to
exceed 75 lineal feet of partitions per 1,000
square feet of usable area.
b) Corridor and demising partitions shall be
3 5/8" metal stud partitions with 5/8" drywall
on each side, from finished floor to slab
above; sound attenuation blankets shall be
placed between studs.
c) Sound insulates partition will consist of
3 1/2" thermal batts in standard partition up
to the underside of finishes ceiling with
batts laid over ceiling at wall injunction
with 2'0" of batts is laying on each side of
partition.
5. Paint: Paint all building standard allowance partition
surfaces with (2) coats latex paint (egg shell
finish) door frames and trim with two (2) coats of
oil base paint. One base color and not more than 2
accent colors to be provided.
6. Tenant
Entrance Doors: Entrance doors shall be 3'0" x 8'0" solid core
mahogany wood doors, hollow meter frames. All
doors will be furnished with two (2) pairs of
butts, exposed closer and Schlage lever handle
(Athens Series) lockset.
SCH-1
<PAGE>
7. Tenant
Interior Doors: Interior doors shall be 3'0" x 8'0" solid core
mahogany veneer wood doors with hollow metal
frame. Hardware will be Schlage lever handle
passage sets (Athens Series) with two (2) pair of
butts, and floor stop in a quantity not to exceed
one (1) door per 300 square feet of usable area.
8. Electrical: a) Distribution System: 277/480 volt power is
provided to the main electrical closet on each
floor. Heating units are powered by 480 volts,
fluorescent lighting operates at 277 volts and
receptacle outlets at 120 volts. No additional
service will be provided for tenant equipment
unless specifically agreed upon and indicated
on lease construction plans. The Landlord
reserves the right to separately meter heavy
electrical use such as computer rooms. This
does not include heating consumption.
b) Lights: building standard lighting fixtures
shall be 2 x 4 lay-on four tube fluorescent
fixtures with electrical ballast, T-8 bulbs,
at an allowance of one fixture per 100 square
feet of usable area. (Simkar 244-432-B11)
c) Switching: Standard toggle-type wall switches
mounted at building standard height shall be
provided at an average density of one (1)
switch per 300 square feet of usable area.
d) Duplex Outlets: Duplex outlets mounted at
building standard height for wall application
shall be provided at an allowance of one
outlet per 150 square feet of usable area.
e) Dedicated receptacles and any special
equipment receptacles shall be provided at
tenant's expense.
f) Exist and emergency lights will be provided as
required by code.
9. Heating
Ventilating & Air
Conditioning: Interior office areas shall be conditioned by the
building's roof mounted, air conditioning and
heating system.
Exterior office areas shall also be conditioned by
the buildings roof mounted air conditioning and
heating system however, with the roof mounted unit
providing only morning warm up, electric baseboard
heat shall be provided in all exterior offices and
areas.
Air distribution from the rooftop units shall be
distributed thru the use of linear diffusers
utilizing internal thermostats.
SCH-2
<PAGE>
The following conditions shall be maintained:
Outside Conditions Inside Conditions
------------------ -----------------
Summer 95/75 75F at 50% RH
Winter OFDB 0 70F at 20% RH
10. Plumbing: All toilet facilities are provided on each floor.
Tenant plumbing requirements other than building
facilities shall be at tenant's expense.
11. Window
Treatment: Building standard slim line aluminum (Bali) blinds
will be provided at all exterior windows.
12. Sprinklers: The building is equipped with an automatic
sprinkler system installed in a quantity of one
(1) sprinkler head per 225 square feet of usable
area. Any relocation of previously installed
sprinklers will be at Tenant's expense.
13. Telephone: Each tenant must arrange for his telephone
requirements directly with Bell of Pennsylvania or
their own installer. Telephone installation shall
be scheduled and coordinated by Tenant with
Landlord at time of construction. Phone outlet
locations can be indicated on construction
documents at the request of Tenant.
SCH-3
