EXHIBIT 10(JJ)
AGREEMENT OF LEASE
BETWEEN
QUAKER PARK ASSOCIATES, L.P.
AS LANDLORD
AND
QUAKER CHEMICAL CORPORATION
AS TENANT
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LEASE
LEASE made this 19th day of December, 2000 by and between QUAKER PARK
ASSOCIATES, L.P., a Pennsylvania limited partnership (hereinafter called
"Landlord"), and QUAKER CHEMICAL CORPORATION, a Pennsylvania corporation
(hereinafter called "Tenant").
FUNDAMENTAL LEASE PROVISIONS
1. "Term": Fifteen (15) years commencing on the Commencement
Date and ending on the date (the "Expiration Date") which is (i) the day
immediately preceding the fifteenth (15th) anniversary of the Commencement Date,
if the Commencement Date is the first day of a calendar month, or (ii) the last
day of the calendar month in which the fifteenth (15th) anniversary of the
Commencement Date occurs, if the Commencement Date is any day other than the
first day of a calendar month. Tenant shall have the right to renew this Lease
for three (3) additional terms of five (5) years, five (5) years and four (4)
years, respectively, on the terms and conditions set forth in Section 38 of the
Lease. In the event that Tenant exercises its renewal option(s) in accordance
with Section 38 of the Lease, then the Expiration Date shall mean the last day
of the applicable Renewal Term (as hereinafter defined).
2. "Demised Premises": approximately 76,672 rentable square
feet ("Tenant's RSF") in the buildings (the "Buildings") known or to be known as
"Quaker Park", located at Elm and ▇▇▇ Streets, Conshohocken, Pennsylvania and
identified on the Site Plan attached hereto as Exhibit "A". The Demised Premises
are shown as the cross-hatched area identified on Exhibit "B" attached hereto
and made a part hereof. The Buildings and the land on which the Buildings are
located are hereinafter referred to as the "Complex". The square footage of the
Demised Premises shall, for all purposes under this Lease, be deemed to be the
square footage set forth above. Within thirty (30) days after completion of the
Office Space Improvements, Landlord shall cause Landlord's architect to measure
the rentable square footage of the Demised Premises in accordance with the BOMA
Measurement Standard (which shall take into account the Building loss factor)
and to certify the same to Landlord and Tenant. In the event that the rentable
square footage of the Demised Premises as certified by Landlord's architect
differs from the square footage set forth above, then Tenant's RSF shall be
deemed to be the rentable square footage certified by Landlord's architect, and
Tenant's Fraction, the Annual Base Rent and all other terms of the Lease
affected by changes in Tenant's RSF shall be adjusted accordingly.
Notwithstanding the foregoing, Tenant shall have the option, exercisable by
written notice to Landlord within forty-five (45) days after completion of the
Office Space Improvements, to verify the rentable floor area of the Demised
Premises by having the Demised Premises remeasured by Tenant's architect in
accordance with the BOMA Measurement Standard (the "Tenant's Remeasurement"). If
the rentable area of the Demised Premises resulting from the Tenant's
Remeasurement is within three percent (3%) of the area of the Demised Premises
as stated above, or as certified by Landlord's architect, as applicable (the
"Stated Area"), the rentable floor area of the Demised Premises shall be equal
to the Stated Area. If the Tenant's Remeasurement is not within three percent
(3%) of the Stated Area, Landlord and Tenant shall negotiate in good faith for
ten (10) days to attempt to reach agreement as to the rentable floor area of the
Demised Premises. If within such ten (10) day period the parties have not
mutually agreed on the rentable floor area of the Demised Premises, then within
five (5) days following such 10-day period Landlord's architect and Tenant's
architect shall jointly appoint a third architect. The third architect shall
independently make his determination of the rentable floor area of the Demised
Premises within ten (10) days after his appointment. The highest and the lowest
measurements among the three (3) architects shall be disregarded and the
remaining determination shall be deemed to be the rentable floor area of the
Demised Premises.
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Each party shall pay for the cost of its architect and one-half of the cost of
the third (3rd) architect. In the event that Landlord's architect and Tenant's
architect do not agree on a third architect within such 10-day period, the
dispute shall be resolved by arbitration in accordance with the then prevailing
Commercial Rules of the American Arbitration Association.
3. "Landlord's RSF": the rentable square footage of the
Buildings, which is currently estimated to be approximately 200,000 rentable
square feet. The rentable square footage of the Buildings will be revised to
reflect the final rentable square footage of the Buildings as certified by
Landlord's architect within thirty days after completion of the Office Space
Improvements
4. "Tenant's Fraction": 38.33%, which is Tenant's RSF divided
by Landlord's RSF, as the same may be adjusted from time to time.
5. "Base Year": Calendar year 2001
6. "Commencement Date": the earlier of (i) the date Tenant
commences occupancy of all or any portion of the Demised Premises, and (ii) the
Delivery Date. "Delivery Date" shall mean the date on which the Office Space
Improvements are "Substantially Completed" or would have been Substantially
Completed had a "Tenant Delay" not occurred as determined in accordance with the
terms of Section 3 below. Upon the request of either party, following the
determination of the Commencement Date, Landlord and Tenant shall enter into a
mutually acceptable Commencement Date Agreement confirming the Commencement
Date.
7. "Estimated Commencement Date:" September 1, 2000
8. "Notice Addresses":
Landlord: c/o Preferred Real Estate Investments, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tenant: Prior to the Commencement Date:
Quaker Chemical Corp.
▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
After the Commencement Date:
At the Demised Premises
9. "Permitted Use": General office use, labs and other lawful
uses ancillary or related thereto.
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10. "Annual Base Rent":
---------------------------------------------------------------------------------------
Lease Year Annual rent Monthly Installment Rent/Sq. Ft.
---------- ----------- ------------------- ------------
---------------------------------------------------------------------------------------
Years 1 through 5 $1,193,783.04 $99,481.92 $15.57
---------------------------------------------------------------------------------------
Years 6 through 10 $1,270,455.04 $105,871.25 $16.57
---------------------------------------------------------------------------------------
Years 11 through 15 $1,347,127.04 $112,260.59 $17.57
---------------------------------------------------------------------------------------
11. "Security Deposit": N/A
12. "Property Manager" / Rent Payment Address:
Equivest Management Company
▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
13. Brokers:
"Landlord's Broker" - Preferred Real Estate Advisors, Inc.
"Tenant's Broker" - None.
List of Exhibits
----------------
Exhibit "A" - Site Plan
Exhibit "B" - Demised Premises
Exhibit "B-1" - Office Space
Exhibit "B-2" - Lab Space
Exhibit "B-3" - Base Building Work
Exhibit "C" - Janitorial Specifications
Exhibit "D" - Rules and Regulations
Exhibit "E" - Form of SNDA
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WITNESSETH, THAT:
1. DEMISED PREMISES / USE. Landlord, for the Term and subject to the
provisions and conditions hereof, leases to Tenant and Tenant accepts from
Landlord, the Demised Premises. The Demised Premises are comprised of an office
portion containing approximately 51,672 rentable square feet as shown on Exhibit
"B-1" attached hereto (the "Office Space") and a laboratory portion containing
approximately 25,000 rentable square feet as shown on Exhibit "B-2" (the "Lab
Space"). Tenant shall not use or occupy, or permit or suffer to be used or
occupied, the Office Space or any part thereof, other than for general office
use and other lawful uses ancillary or related thereto. Tenant shall not use or
occupy, or permit or suffer to be used or occupied, the Lab Space or any part
thereof, other than for laboratory use, ancillary office use and other lawful
uses ancillary or related thereto.
2. TERM / LEASE YEAR. The Term of this Lease shall commence on the
Commencement Date and shall expire on the Expiration Date, unless sooner
terminated as expressly set forth herein. The first lease year of the Term shall
commence on the Commencement Date and shall end on (i) the day immediately
preceding the first anniversary of the Commencement Date, if the Commencement
Date is the first day of the month, or (ii) the last day of the month in which
the first anniversary of the Commencement Date occurs, if the Commencement Date
is any day other than the first day of a calendar month. Each lease year after
the first lease year shall be a consecutive twelve (12) month period commencing
on the first day of the calendar month immediately following the preceding lease
year.
3. BASE BUILDING WORK / TENANT IMPROVEMENTS.
(a) Base Building Work. Landlord shall cause to be
constructed, in a good and workmanlike manner and in conformity with all
applicable laws, certain base building work as described on Exhibit "B-3"
attached hereto ("Base Building Work"). The Base Building Work shall be
performed at Landlord's sole cost and expense. Any work not expressly included
in the Base Building Work shall constitute Office Space Improvements or Lab
Space Improvements (each as hereinafter defined), as the case may be. Tenant
specifically acknowledges that the Base Building Work shall apply only with
respect to Office Space (as hereinafter defined), and Landlord shall not have
any obligation to perform any base building work or other improvements to the
Lab Space (as hereinafter defined) to prepare the same for Tenant's occupancy.
(b) Office Space.
(i) On or before January 15, 2001, Tenant shall submit to
Landlord, for Landlord's prior approval, proposed plans and specifications,
including complete construction drawings (i.e., with mechanical, electrical and
fire protection drawings) (the "Proposed Office Plans") for Tenant's proposed
improvements to the Office Space, which plans shall be prepared by a registered
architect licensed to do business in Pennsylvania. The Proposed Office Plans
shall include all information and specifications necessary for Landlord to
complete the work described therein and shall conform to all applicable laws and
requirements of public authorities and insurance underwriters' requirements. If
Landlord disapproves the Proposed Office Plans, Landlord shall state
specifically the reasons for such disapproval, and Tenant shall cause its
architects to promptly make any changes in the Proposed Office Plans reasonably
required by Landlord. Landlord and Tenant acknowledge that
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the Estimated Commencement Date is conditioned upon Landlord approving the
Proposed Office Plans on or before January 31, 2000 (the "Target Approval
Date"). The Proposed Office Plans, as finally approved by Landlord are referred
to hereinafter as the "Office Plans." The work described in the Office Plans is
hereinafter referred to as the "Office Space Improvements."
(ii) Landlord shall construct, at Tenant's sole cost and
expense (subject to the Office Space Improvement Allowance), the Office Space
Improvements in accordance with the Office Plans, reserving the right to: (a)
make substitutions of material of equivalent grade and quality when and if any
specified material shall not be readily and reasonably available; and (b) make
changes necessitated by conditions met during the course of construction,
provided that Tenant's approval of any change pursuant to clause (a) or (b) (and
any increase or reduction of cost incident thereto) shall first be obtained,
which approval shall not be unreasonably withheld. All work shall be furnished,
installed and performed by Landlord, utilizing a general contractor selected by
Landlord (which may be an affiliate of a general partner of Landlord), for
"Landlord's Cost." "Landlord's Cost" shall mean all costs and expenses incurred
by Landlord in connection with the completion of the Office Space Improvements,
including, without limitation: (i) Landlord's out-of-pocket contract or purchase
price(s) for materials, components, labor and services plus (ii) Landlord's
architects' and engineers' fees and costs, plus (iii) fees for all required
permits and approvals. All subsequent changes in the Office Plans requested by
Tenant shall be subject to the approval of Landlord. If Landlord approves any
change in the Office Plans, Landlord shall construct the Office Space
Improvements in accordance with such change, and Tenant shall pay any increase
in the cost of constructing the Office Space Improvements resulting from such
change.
(iii) Landlord shall provide Tenant with a construction
allowance of (i) Twenty Dollars ($20.00) per rentable square foot of the Office
Space, plus (ii) Seven Hundred Fifty Thousand Dollars ($750,000) (such sums
being collectively referred to as the "Office Space Improvement Allowance"),
which Office Space Improvement Allowance shall be applied solely against
Landlord's Cost for the Office Space Improvements. In the event that Landlord's
Cost exceeds the amount of the Office Space Improvement Allowance, Tenant shall
reimburse Landlord for such excess from time to time during the progress of the
work within ten (10) days after receipt of Landlord's invoice(s) therefor;
provided, however, that Landlord may require that, before Landlord commences any
work, Tenant shall pay to Landlord fifty percent (50%) of the amount estimated
by Landlord to become due to Landlord therefor, which fifty percent (50%) shall
be applied against the last of the Tenant Improvements to be paid for by Tenant
to Landlord. To the extent that Landlord's Costs are less than the Office Space
Improvement Allowance, Tenant may, at Tenant's option, apply such difference
against the cost of the Lab Space Improvements or, in the alternative, receive a
refund or credit against the rent payable hereunder, but in no event shall such
refund or credit exceed Five Dollars ($5.00) per rentable square foot of the
Office Space. Upon written request by Tenant from time to time during the course
of construction, the total amount of Landlord's Cost shall be subject to
examination by Tenant, and Tenant shall have reasonable access to Landlord's
cost records relative thereto.
(iv) Following Landlord's receipt of bids and/or estimates for
the Office Space Improvements, Landlord agrees to provide Tenant with a pricing
schedule setting forth the estimated Landlord's Cost (the "Pricing Schedule").
In the event that the estimated Landlord's Cost as set forth in the Pricing
Schedule exceeds the Office Space Improvement Allowance, then, within five (5)
days after Tenant's receipt of the Pricing Schedule, Tenant shall have the right
to make modifications to the Tenant's Plans to reduce the estimated Landlord's
Cost; provided, however, to the extent that any delays in completion of the
Office Space Improvements are caused by Tenant's modifications, the same shall
constitute a "Tenant Delay" hereunder. Failure by Tenant
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to object to the Pricing Schedule within said 5-day period shall be deemed an
approval by Tenant of the Pricing Schedule.
(v) Upon completion of the Office Space Improvements, except
for items described in subparagraph (vi) below, Landlord shall notify Tenant,
and Tenant shall inspect the Office Space with Landlord within three (3)
business days after Tenant's receipt of Landlord's notice. Upon completion of
the inspection, it shall be presumed that all work theretofore performed by or
on behalf of Landlord was satisfactorily performed in accordance with, and
meeting the requirements of this Lease. The foregoing presumption shall not
apply, however: (A) to required work not actually completed by Landlord, which
Landlord agrees it shall complete with reasonable speed and diligence and which
is identified at the time of the inspection on a list prepared by the
construction representatives of Landlord and Tenant, or (B) to latent defects in
such work which were not discovered at the time of the inspection; provided
Tenant notifies Landlord of such defects within one (1) year from the date of
the inspection. Landlord will correct any defects or deficiencies of which it is
notified within the required period with reasonable speed and diligence.
(vi) The Office Space shall be deemed to be "Substantially
Completed" when: (A) the work shown on the Office Plans has been completed
except for (1) any improvements or work to be performed by Tenant; and (2) minor
or insubstantial details of construction, mechanical adjustments, or finishing
touches, which items shall not adversely affect Tenant's conduct of its ordinary
business activities in the Office Space; and (B) if required under the
applicable code or ordinance of Whitemarsh Township, the Township has issued a
Certificate of Occupancy for the Office Space. Notwithstanding the foregoing, in
the event that Tenant shall cause a delay in the Substantial Completion of the
Office Space Improvements for any reason, including, without limitation, the
reasons set forth in subparagraphs (a) through (d) below (a "Tenant Delay"),
then Tenant's obligation to pay rent hereunder shall not be affected or deferred
on account of such delay and, for purposes of establishing the Commencement Date
hereunder, the "Delivery Date" shall be deemed to be the date that Substantial
Completion would have occurred but for such Tenant Delay:
(a) failure by Tenant to submit the
Proposed Office Plans to Landlord by
the Plans Submission Date, or the
failure by Tenant to obtain Landlord's
approval of the Proposed Office Plans
by the Target Approval Date or to
otherwise promptly make changes in the
Proposed Office Plans reasonably
required by Landlord in connection
with the approval thereof; or
(b) changes in the Office Plans
requested by Tenant; or
(c) delays, not caused by Landlord, in
furnishing special items which are not
readily available ("Long Lead Items")
or procuring specialized labor
required for installation of Long Lead
Items, provided that Tenant shall be
notified of Landlord's good faith
estimate of the anticipated delay
promptly after discovery thereof by
Landlord, and shall be given an
opportunity to specify alternative
materials or requirements which are
readily available; or
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(d) the performance of any work or
activity in the Demised Premises by
Tenant or any of its employees, agents
or contractors.
(vii) The date determined in accordance with subparagraph (vi)
above is herein called the date of "Substantial Completion". In the event of any
Tenant Delay, Tenant acknowledges that the Commencement Date and Tenant's
obligations to pay rent hereunder may begin before the Office Space Improvements
have been completed.
(b) Lab Space.
(i) Tenant has inspected the Lab Space, is familiar with the
condition thereof, and accepts the Lab Space in it "AS IS" condition, without
any representation or warranty by Landlord, express or implied. Tenant
acknowledges that Landlord shall have no obligation to perform any improvements
to the Lab Space to prepare the Lab Space for Tenant's use and occupancy.
(ii) Tenant shall perform, at its sole cost and expense, all
work which Tenant deems necessary or desirable to prepare the Lab Space for
Tenant's initial occupancy (collectively, the "Lab Space Improvements"), which
Lab Space Improvements shall be subject to the prior written approval of
Landlord. All work shall be performed in a good and workmanlike manner and in
accordance with all applicable laws. Prior to the commencement of any work
within the Lab Space, Tenant shall submit to Landlord, for Landlord's prior
approval (which approval shall not be unreasonably withheld, conditioned or
delayed), proposed plans and specifications (the "Proposed Lab Plans") for
Tenant's proposed improvements to the Lab Space, which plans shall be prepared
by a registered architect licensed to do business in Pennsylvania. The Proposed
Lab Plans shall include all information and specifications necessary for
Landlord to fully review the work described therein and shall conform to all
applicable laws and requirements of public authorities and insurance
underwriters' requirements. If Landlord disapproves the Proposed Lab Plans,
Landlord shall state specifically the reasons for such disapproval, and Tenant
shall cause its architects to promptly make any changes in the Proposed Lab
Plans reasonably required by Landlord. All contractors utilized by Tenant for
the performance of the Lab Space Improvements shall be subject to the prior
written approval of Landlord.
(iii) Landlord shall provide Tenant with a construction
allowance (the "Lab Space Improvement Allowance") of Twenty Dollars ($20.00) per
rentable square foot of the Lab Space, which shall be applied solely against
Tenant's Costs for the Lab Space Improvements and for no other purpose. The Lab
Space Improvement Allowance shall be payable from time to time during the course
of Tenant's construction of the Lab Space within thirty (30) days after receipt
of invoices evidencing Tenant's Costs therefor. All payments made by Landlord on
account of the Lab Space Improvement Allowance shall be subject to retainage of
ten percent (10%) until completion of the Lab Space Improvements. "Tenant's
Costs" shall mean Tenant's out-of-pocket contract or purchase price(s) for
materials, components, labor and services for the Lab Space Improvements,
including, without limitation, Tenant's costs for space planning, design,
architectural and engineering services, wiring and cabling. Tenant's Costs shall
be subject to examination by Landlord, and Tenant shall provide Landlord with
copies of all invoices and other backup documentation reasonably requested by
Landlord relative thereto. To the extent that Tenant's Costs are less than the
Lab Space Improvement Allowance, Tenant may, at Tenant's option, apply such
difference against the cost of the Office Space Improvements or, in the
alternative, receive a refund or credit against the rent payable hereunder, but
in no event shall such refund or credit exceed Five Dollars ($5.00) per rentable
square foot of the Lab Space. In the event that Tenant's
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Costs exceed the amount of the Lab Space Improvement Allowance, Tenant shall be
solely responsible for such excess costs.
4. DELAY IN POSSESSION. Landlord currently anticipates that the
Commencement Date hereunder will occur on or about the Estimated Commencement
Date. If the Commencement Date has not occurred by the Estimated Commencement
Date because of the holding over or retention of possession of any tenant or
occupant, or if any repairs, improvements or decoration of the Demised Premises
are not completed, or for any other reason, Landlord shall not be subject to any
liability to Tenant. Under such circumstances, the rent reserved and covenanted
to be paid herein shall not commence until the Commencement Date, and no such
failure to deliver possession shall in any other respect affect the validity of
this Lease. Notwithstanding the foregoing, in the event that the Commencement
Date has not occurred by the date which is thirty (30) days after the Estimated
Commencement Date (other than on account of a delay caused in whole or in part
by Tenant), then Tenant shall be entitled to a rent credit of Five Hundred
Dollars ($500.00) per day for each day that the Commencement Date is delayed
beyond such thirtieth (30th) day, which rent credit shall constitute liquidated
damages and not a penalty.
5. RENT.
(a) During the Term of this Lease, Tenant shall pay to Landlord the
Annual Base Rent in the amount set forth in Section 10 of the Fundamental Lease
Provisions. Such Base Rent shall be payable in equal monthly installments in
advance on the first day of each calendar month.
(b) The term "rent" as used in this Lease shall mean the Annual Base
Rent, Operating Expenses (including, without limitation, Taxes) and all other
additional rent or other sums payable by Tenant to Landlord under this Lease,
all of which shall be deemed "rent" for purposes of Landlord's rights and
remedies with respect thereto.
(c) The first installment of rent shall be payable on the
Commencement Date. If the Term begins on a day other than the first day of a
month, rent from such day until the first day of the following month shall be
prorated on a per diem basis for each day of such partial month, and the
installment of rent paid at execution hereof shall be applied to the rent due
for the first full calendar month of the term hereof.
(d) All rent and other sums due to Landlord hereunder shall be
payable to Landlord c/o Landlord's Property Manager at the Rent Payment Address
specified in Section 12 of the Fundamental Lease Provisions, or to such other
party or at such other address as Landlord may designate, from time to time, by
written notice to Tenant, without demand and without deduction, set-off or
counterclaim (except as otherwise expressly provided for herein).
(e) If Landlord, at any time or times, shall accept said rent or any
other sum due to it hereunder after the same shall become due and payable, such
acceptance shall not excuse delay upon subsequent occasions, or constitute or be
construed as, a waiver of any of Landlord's rights hereunder.
6. SECURITY DEPOSIT. Intentionally Omitted.
7. PAYMENT OF OPERATING EXPENSES.
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(a) As used herein, the following terms shall be defined as
hereinafter set forth:
(i) "Taxes" shall mean all real estate taxes and assessments,
general and special, ordinary or extraordinary, foreseen or unforeseen, imposed
upon the Complex or with respect to the ownership thereof. If, due to a future
change in the method of taxation, any franchise, income, profit or other tax,
however designated, shall be levied or imposed in substitution in whole or in
part for (or in lieu of) any tax which would otherwise be included within the
term "Taxes" as defined herein, then the same shall be included in the term
"Taxes."
(ii) "Operating Expenses" shall mean, except as hereinafter
limited, Landlord's actual out-of-pocket expenses in respect of the operation,
maintenance and management of the Complex and shall include, without limitation:
(1) wages and salaries (and taxes imposed upon employers) with respect to those
employed by Landlord for rendering service in the normal operation, cleaning,
maintenance and repair of the Complex (provided, however, that to the extent
that such individuals render services to other buildings owned or operated by
Landlord or an affiliate of Landlord, the wages and salaries of such individuals
shall be equitably allocated among the Complex and such other buildings); (2)
costs for the operation, maintenance, repair and replacement of the Complex,
including payments to contractors; (3) the cost of steam, electricity, water and
sewer and other utilities (except for electricity which is separately charged by
Landlord as herein provided) chargeable to the operation and maintenance of the
Complex; (4) cost of insurance for the Complex including fire and extended
coverage, elevator, boiler, sprinkler leakage, water damage, public liability
and property damage, environmental liability, plate glass, and rent protection,
but excluding any charge for increased premiums due to acts or omissions of
other occupants of the Buildings or because of extra risk which are reimbursed
to Landlord by such other occupants; (5) supplies; (6) legal and accounting
expenses; (7) Taxes; (8) management expense; and (9) all other costs and
expenses incurred by or on behalf of Landlord in connection with the repair,
replacement, operation, maintenance, securing, insuring and policing of the
Complex. The term "Operating Expenses" shall not include: (1) the cost of any
repair or replacement item which, by standard accounting practice, should be
capitalized; (2) any charge for depreciation, interest on encumbrances or ground
rents paid or incurred by Landlord; (3) any charge for Landlord's income tax,
excess profit taxes, franchise taxes or similar taxes on Landlord's business;
(4) commissions; (5) costs actually reimbursed by insurance proceeds; (6) the
costs of any service provided to other tenant(s) of the Complex to the extent
Landlord is entitled to be reimbursed directly (i.e., not as on Operating
Expense pass-through) therefor, and the cost of any service provided to other
tenant(s) of the Complex but not to Tenant; (7) legal fees, accountants' fees
and other expenses incurred in connection with disputes with tenants or other
occupants of the Complex or associated with the enforcement of any leases or
defense of Landlord's title to or interest in the Building or any part thereof;
(8) salaries and employees of Landlord above the level of manager of the
Complex; and (9) penalties and/or interest imposed by reason of the late payment
by Landlord of Taxes or any other charges to be paid by Landlord.
(b) In determining Operating Expenses for any year (including the
Base Year), if less than one hundred percent (100%) of the rentable area of the
Buildings shall have been occupied by tenants at any time during such year,
Operating Expenses shall be deemed for such year to be an amount equal to the
like expenses which Landlord reasonably determines would normally be incurred
had such occupancy been one hundred percent (100%) throughout such year.
(c) For and with respect to each calendar year of the Term
(including any renewals or extensions thereof) after the Base Year, there shall
accrue, as additional rent, a sum ("Tenant's Share") equal to Tenant's Fraction
of the amount by which Operating Expenses for
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such calendar year exceed the Operating Expenses for the Base Year
(appropriately prorated for any partial calendar year included within the
beginning and end of the Term).
(d) Landlord shall furnish to Tenant as soon as reasonably possible
after the beginning of each calendar year of the Term:
(i) A statement (the "Expense Statement") setting forth (1)
Operating Expenses for the previous calendar year, and (2) Tenant's Share of
Operating Expenses for the previous calendar year; and
(ii) A statement of Landlord's good faith estimate of Operating
Expenses, and the amount of Tenant's Share thereof (the "Estimated Share"), for
the current calendar year.
(e) Within fifteen (15) days after Tenant receives the Expense
Statement, Tenant shall pay to Landlord the difference, if positive, between the
Tenant's Share of Operating Expenses for such previous year and the actual
payments made by Tenant during such calendar year, or if the actual payments
exceed Tenant's Share of Operating Expenses for such previous year, Tenant shall
receive a credit against the next payment(s) of Operating Expenses falling due
or, if the Lease shall have expired, a refund of such overpayment.
(f) Unless Tenant, within sixty (60) days after any Expense
Statement is furnished, shall give notice to Landlord that Tenant disputes said
statement, specifying in detail the basis for such dispute, each Expense
Statement furnished to Tenant by Landlord under this Section shall be
conclusively binding upon Tenant as to the Operating Expenses due from Tenant
for the period represented thereby. Pending resolution of any dispute, Tenant
shall pay the additional rent in accordance with the Expense Statement furnished
by Landlord.
(g) Beginning with the next installment of Base Rent due after
delivery of the statement of Tenant's Estimated Share, Tenant shall pay to
Landlord, on account of its share of Operating Expenses, one-twelfth (1/12) of
the Estimated Share multiplied by the number of full or partial calendar months
elapsed during the current calendar year up to and including the month payment
is made (less any amounts previously paid by Tenant on account of Operating
Expenses for such period).
(h) On the first day of each succeeding month up to the time Tenant
shall receive a new statement of Tenant's Estimated Share, Tenant shall pay to
Landlord, on account of its share of Operating Expenses, one-twelfth of the then
current Estimated Share. Any payment due from Tenant to Landlord on account of
Operating Expenses not yet determined as of the expiration of the Term shall be
made within twenty (20) days after submission to Tenant of the next Expense
Statement and any payments due from Landlord to Tenant for any overpayment of
Operating Expenses shall be paid at the time Landlord delivers its next Expense
Statement, which obligations shall survive the expiration or earlier termination
of this Lease.
8. UTILITIES SEPARATELY CHARGED TO DEMISED PREMISES. Tenant shall be
responsible for all utilities (including gas and electric) which are consumed
within the Demised Premises. Landlord shall, at Landlord's sole cost and
expense, have submeters installed to measure the consumption by Tenant of
electricity within the Demised Premises. Tenant shall pay for the consumption of
electricity and any utilities which are separately metered based on its metered
usage. With respect to any other utilities which are not separately metered,
Tenant shall pay a pro-rata share of any utility charges covering the Demised
Premises and other areas of the Complex serviced by such utility, which pro-rata
share shall be based on the percentage which the
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Tenant's RSF bears to the square footage of the areas of the Complex serviced by
such utility. Tenant shall pay all utility bills within ten (10) days after
receipt by Tenant. Landlord shall have the right, to be exercised by written
notice to Tenant, to direct Tenant to contract directly with the utility
provider supplying electricity to the Buildings, in which event Tenant shall pay
all charges therefor directly to the utility provider. Landlord shall at all
times have the exclusive right to select the provider or providers of utility
service to the Demised Premises and the Complex. Landlord shall maintain all
utility facilities (including submeters) located in the Demised Premises, the
cost of which shall be included as an Operating Expense hereunder. Landlord
shall have the right of access to the Demised Premises from time to time to
install or remove utility facilities provide that Landlord does not materially
interfere with Tenant's use of the Demised Premises.
9. SERVICES. Landlord agrees that it shall:
(a) Provide water for drinking, lavatory and toilet purposes drawn
through fixtures installed by Landlord;
(b) Furnish heat, ventilation and air-conditioning to the Demised
Premises;
(c) Furnish electricity and natural gas to the Demised Premises; and
(d) Provide janitorial services in accordance with Landlord's
building standard janitorial specifications which are attached hereto as Exhibit
"C". Any and all additional or specialized janitorial service desired by Tenant
shall be contracted for by Tenant directly and the cost and payment thereof
shall be the sole responsibility of Tenant.
The cost of the foregoing services shall be included in Operating
Expenses except for those utilities which are separately metered, as provided in
Section 8 above. It is understood that Landlord does not warrant that any of the
services referred to in this Section will be free from interruption from causes
beyond the reasonable control of Landlord. No interruption of service shall ever
be deemed an eviction or disturbance of Tenant's use and possession of the
Demised Premises or any part thereof or render Landlord liable to Tenant for
damages, permit Tenant to ▇▇▇▇▇ rent or otherwise relieve Tenant from
performance of Tenant's obligations under this Lease. Notwithstanding the
foregoing, if any interruption of services caused by the negligence or willful
misconduct of Landlord renders the Demised Premises untenantable for a period of
five (5) or more consecutive business days and Tenant ceases to use the Demised
Premises (or the affected portion thereof) on account of such interruption,
then, in such event, Tenant shall be entitled to a proportionate abatement of
rent (based on the extent to which the Demised Premises is rendered untenantable
and Tenant ceases to use the same) until such time as the Demised Premises (or
the affected portion thereof) are restored to a tenantable condition.
10. CARE OF DEMISED PREMISES. Tenant agrees, on behalf of itself, its
employees and agents that it shall:
(a) Comply at all times with any and all federal, state and local
statutes, regulations, ordinances, and other requirements of any of the
constituted public authorities relating to its specific use and occupancy of the
Demised Premises (as opposed to any federal, state, and local statutes,
regulations, ordinances and other requirements of any of the constituted public
authorities which relate to office buildings in general, compliance with which
shall be the sole responsibility of Landlord).
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(b) Give Landlord access to the Demised Premises at all reasonable
times and upon not less than twenty-four hours' notice (except in the event of
emergency), without charge or diminution of rent, to enable Landlord (i) to
examine the same and to make such repairs, additions and alterations as Landlord
may be permitted to make hereunder or as Landlord may deem advisable for the
preservation of the integrity, safety and good order of the Buildings or any
part thereof; and (ii) to show the Demised Premises to prospective mortgagees
and purchasers and, during the six (6) months prior to expiration of the Term,
to prospective tenants;
(c) Maintain, repair and replace the interior, non-structural
portions of the Demised Premises in good order and repair as and when needed,
and replace all glass broken by Tenant, its agents, employees or invitees with
glass of the same quality as that broken, except for glass broken by fire and
extended coverage-type risks, and commit no waste in the Demised Premises;
(d) Upon the expiration or earlier termination of this Lease, remove
Tenant's goods and effects and those of any other person claiming under Tenant,
and quit and deliver up the Demised Premises to Landlord peaceably and quietly
in as good order and condition as existed at the inception of the Term, wear and
tear, damage from fire and casualty excepted. Goods and effects not removed by
Tenant at the termination of this Lease, however terminated, shall be considered
abandoned and Landlord may dispose of and/or store the same as it deems
expedient, the cost thereof to be charged to Tenant; provided, however, that in
no event shall Tenant be required to remove any fixtures, improvements or
alterations installed by Tenant or Landlord, including, without limitation, the
Office Space Improvements or the Lab Space Improvements;
(e) Not overload, damage or deface the Demised Premises or do any
act which might make void or voidable any insurance on the Demised Premises or
the Buildings or which may render an increased or extra premium payable for
insurance (and without prejudice to any right or remedy of Landlord regarding
this subparagraph, Landlord shall have the right to collect from Tenant, upon
demand, any such increase or extra premium). Tenant shall maintain at its own
sole cost adequate insurance coverage for the full replacement value of all of
its equipment, furniture, supplies and fixtures and provide Landlord with
certificates evidencing such coverage;
(f) Not make any alteration of or addition to the Demised Premises
without the prior written approval of Landlord, except for interior,
nonstructural alterations, which may be made without Landlord's prior approval;
(g) Not install any equipment of any kind whatsoever which might
necessitate any changes, replacements or additions to any of the heating,
ventilating, air-conditioning, electric, sanitary, elevator or other systems
serving the Demised Premises or any other portion of the Building, or to any of
the services required of Landlord under this Lease, without the prior written
approval of Landlord, which approval shall not be unreasonably withheld,
conditioned or delayed, and in the event such consent is granted, such
replacements, changes or additions shall be paid for by Tenant at Tenant's sole
cost and expense. At the expiration or earlier termination of this Lease, Tenant
shall pay Landlord's cost of restoring such systems to their condition prior to
such replacements, changes or additions provided that, at the time Landlord
consented to such improvements, Landlord advised Tenant that such systems would
need to be restored; and
(h) Observe the rules and regulations annexed hereto as Exhibit "D,"
as Landlord may from time to time amend the same, for the general safety,
comfort and convenience of Landlord, occupants and tenants of the Buildings.
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11. MECHANIC'S LIEN. Tenant shall, within thirty (30) days after notice
from Landlord, discharge any mechanic's lien for materials or labor claimed to
have been furnished to the Demised Premises on Tenant's behalf (except for work
contracted for by Landlord) and shall indemnify and hold harmless Landlord from
any loss incurred in connection therewith.
12. REPAIRS AND MAINTENANCE. Landlord shall maintain, repair and
replace all portions of the Complex which are not expressly the responsibility
of Tenant hereunder, including, without limitation, keeping and maintaining the
public areas of the Complex clean and in good working order. Landlord shall
further make, or cause to be made, all necessary repairs to the structure and
exterior of the Buildings, as well as to the mechanical, HVAC, electrical and
plumbing systems servicing the Buildings, provided that Landlord shall have no
obligation to make any repairs until Landlord shall have received notice of the
need for such repair. The cost of the foregoing maintenance and repairs shall be
included in Operating Expenses. Notwithstanding the foregoing, all repairs made
necessary by Tenant's specific use, occupancy or alteration of the Complex, or
by the negligent acts of Tenant, its agents, employees or invitees, shall be
made at the sole cost and expense of Tenant.
13. SUBLETTING AND ASSIGNING.
(a) Tenant shall have the right to assign this Lease or sublet all
or any portion of the Demised Premises, whether voluntarily or by operation of
law, without requiring Landlord's prior written consent thereto. In addition,
Tenant shall not mortgage, pledge or hypothecate this Lease.
(b) A transfer or sale by Tenant of a majority of the voting shares,
partnership interests or other controlling interests in Tenant shall not be
deemed an assignment of this Lease by Tenant.
(c) Notwithstanding the foregoing, any subletting or assignment by
Tenant (with or without Landlord's consent) shall not in any way relieve or
release Tenant from liability for the performance of all terms, covenants and
conditions of this Lease.
(d) Tenant shall pay to Landlord, as additional rent hereunder, 50%
of all subrents or other sums or economic consideration received by Tenant
(after deducting Tenant's reasonable costs of reletting, including, without
limitation, the amortization of any fit-out costs incurred by Tenant to improve
any space for a subtenant's occupancy), whether denominated as rentals or
otherwise, in excess of the monthly sums which Tenant is required to pay under
this Lease.
14. FIRE OR CASUALTY. In the event that the whole or a substantial part
of the Buildings or the Demised Premises is damaged or destroyed by fire or
other casualty, then, within thirty (30) days after the date that Landlord
receives notice of such fire or other casualty, Landlord shall provide written
notice to Tenant as to whether Landlord intends to repair or rebuild and the
estimated time period for the completion thereof. In the event that Landlord's
notice provides that the repairs to the Demised Premises shall require more than
one hundred eighty (180) days from the date of such fire or casualty to
complete, or if Landlord fails to provide such notice within said thirty (30)
days, then Tenant shall have the right to terminate this Lease by providing
written notice thereof to Landlord within thirty days (30) after receipt of
Landlord's notice, in which event this Lease shall be deemed terminated as of
the date of such fire or casualty. In the event that Landlord elects to repair
or rebuild (and Tenant does not have the right to, or has elected not to,
terminate this Lease in accordance with the foregoing sentence), Landlord shall
thereupon cause the damage (excepting, however, Tenant's furniture, fixtures,
equipment and improvements, which
14
shall be Tenant's responsibility to restore) to be repaired with reasonable
speed. If Landlord fails to complete such repairs within said one hundred eighty
(180) days, Tenant may terminate this Lease by providing written notice to
Landlord, in which event this Lease shall be deemed terminated as of the date of
such fire or casualty. In the event the damage shall be so extensive that
Landlord shall decide not to repair or rebuild, or if any mortgagee, having the
right to do so, shall direct that the insurance proceeds are to be applied to
reduce the mortgage debt rather than to the repair of such damage, this Lease
shall be terminated effective as of the date of casualty. To the extent and for
the time that the Demised Premises are rendered untenantable or inaccessible on
account of fire or other casualty, the rent shall proportionately ▇▇▇▇▇.
15. EMINENT DOMAIN. If the whole or a substantial part of the Demised
Premises, the Buildings or the Complex is taken or condemned for a public or
quasi-public use under any statute or by right of eminent domain by any
competent authority or sold in lieu of such taking or condemnation, such that in
the opinion of an architect (who shall be selected by both Tenant and Landlord),
the Demised Premises, the Buildings and/or the Complex are not economically
operable as before without substantial alteration or reconstruction, this Lease
shall automatically terminate on the date that the right to possession shall
vest in the condemning authority (the "Taking Date"), with rent being adjusted
to said Taking Date, and Tenant shall have no claim against Landlord for the
value of any unexpired term of this Lease. Tenant shall have no claim against
Landlord and no claim or right to any portion of any amount that may be awarded
as damages or paid as a result of any taking, condemnation or purchase in lieu
thereof; except that Tenant shall have the right to recover a separate award for
moviing expenses or any other award which woould not reduce the award payable to
Landlord. If any part of the Demised Premises is so taken or condemned, but this
Lease is not automatically terminated as aforesaid this Lease shall
automatically terminate as to the portion of the Demised Premises so taken or
condemned, as of the Taking Date, and this Lease shall continue in full force as
to the remainder of the Demised Premises, with rent abating only to the extent
of the Demised Premises so taken or condemned; provided, however, that if the
remaining portion of the Demised Premises is no longer suitable for the
Permitted Use, then Tenant shall have the right to terminate this Lease by
providing written notice thereof to Landlord within thirty (30) days after the
Taking Date.
16. INSOLVENCY. (a) The appointment of a receiver or trustee to take
possession of all or a portion of the assets of Tenant, or (b) an assignment by
Tenant for the benefit of creditors, or (c) the institution by or against Tenant
of any proceedings for bankruptcy or reorganization under any state or federal
law (unless in the case of involuntary proceedings, the same shall be dismissed
within forty-five (45) days after institution), or (d) any execution issued
against Tenant which is not stayed or discharged within fifteen (15) days after
issuance of any execution sale of the assets of Tenant, shall constitute a
breach of this Lease by Tenant. Landlord in the event of such a breach, shall
have, without need of further notice, the rights enumerated in Section 17
herein.
17. DEFAULT.
(a) If Tenant shall fail to pay rent or any other sum payable to
Landlord hereunder when due and such failure continues for more than five (5)
days after written notice thereof from Landlord to Tenant), or if Tenant shall
fail to perform or observe any of the other covenants, terms or conditions
contained in this Lease and such failure continues for thirty (30) days after
written notice thereof from Landlord (or such longer period as is reasonably
required to correct any such default, provided Tenant promptly commences and
diligently continues to effectuate a cure), or if any of the events specified in
Section 16 occur, or if Tenant vacates or abandons the Demised Premises during
the term hereof or removes any of Tenant's goods or property therefrom other
than in the ordinary and usual course of Tenant's business, then and in any of
said cases (notwithstanding any former breach of covenant or waiver thereof in a
former
15
instance), Landlord, in addition to all other rights and remedies available to
it by law or equity or by any other provisions hereof, may at any time
thereafter:
(i) upon three (3) days notice to Tenant, declare to be
immediately due and payable, a sum equal to the Accelerated Rent Component (as
hereinafter defined), and Tenant shall remain liable to Landlord as hereinafter
provided; and/or
(ii) terminate this Lease on at least five (5) days notice to
Tenant and, on the date specified in said notice, this Lease and the term hereby
demised and all rights of Tenant hereunder shall expire and terminate and Tenant
shall thereupon quit and surrender possession of the Demised Premises to
Landlord in the condition elsewhere herein required and Tenant shall remain
liable to Landlord as hereinafter provided.
(b) For purposes herein, the Accelerated Rent Component shall mean
the aggregate of:
(i) all rent and other charges, payments, costs and expenses due
from Tenant to Landlord and in arrears at the time of the election of Landlord
to recover the Accelerated Rent Component; and
(ii) the Annual Base Rent reserved for the then entire unexpired
balance of the Term (taken without regard to any early termination of the term
by virtue of any default, and without regard for any unexercised Renewal Terms,
plus all other charges, payments, costs and expenses herein agreed to be paid by
Tenant up to the end of the Term which shall be capable of precise determination
at the time of Landlord's election to recover the Accelerated Rent Component.
(c) In any case in which this Lease shall have been terminated, or
in any case in which Landlord shall have elected to recover the Accelerated Rent
Component and any portion of such sum shall remain unpaid, Landlord may without
further notice, enter upon and repossess the Demised Premises, by summary
proceedings, ejectment or otherwise, and may dispossess Tenant and remove Tenant
and all other persons and property from the Demised Premises and may have, hold
and enjoy the Demised Premises and the rents and profits therefrom. Landlord
may, in its own name, as agent for Tenant, if this Lease has not been
terminated, or in its own behalf, if this Lease has been terminated, relet the
Demised Premises or any part thereof for such term or terms (which may be
greater or less than the period which would otherwise have constituted the
balance of the Term) and on such terms (which may include concessions of free
rent) as Landlord in its sole discretion may determine. Landlord may, in
connection with any such reletting, cause the Demised Premises to be decorated,
altered, divided, consolidated with other space or otherwise changed or prepared
for reletting. No reletting shall be deemed a surrender and acceptance of the
Demised Premises.
(d) In the event Landlord shall, after default or breach by Tenant,
recover the Accelerated Rent Component from Tenant and it shall be determined at
the expiration of the Term of this Lease (taken without regard to early
termination for default) that a credit is due Tenant because the net proceeds of
reletting, as aforesaid, plus amounts paid to Landlord by Tenant exceed the
aggregate of rent and other charges accrued in favor of Landlord to the end of
the Term of this Lease, Landlord shall refund such excess to Tenant, without
interest, promptly after such determination.
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(e) Landlord shall in no event be responsible or liable for any
failure to relet the Demised Premises or any part thereof, or for any failure to
collect any rent due upon a reletting.
(f) Tenant shall pay upon demand all Landlord's costs, charges and
expenses, including the fees and out-of-pocket expenses of counsel, agents and
others retained by Landlord, incurred in enforcing Tenant's obligations
hereunder.
(g) Intentionally Omitted.
(h) If rent or any other sum due from Tenant to Landlord shall be
overdue for more than thirty (30) days after notice from Landlord, it shall
thereafter bear interest at the rate of twenty percent (20%) per annum (or, if
lower, the highest legal rate) until paid.
(i) All remedies available to Landlord hereunder and at law and in
equity shall be cumulative and concurrent. No termination of this Lease nor
taking or recovering possession of the Demised Premises shall deprive Landlord
of any remedies or actions against Tenant for rent, for charges or for damages
for the breach of any covenant, agreement or condition herein contained, nor
shall the bringing of any such action for rent, charges or breach of covenant,
agreement or condition, nor the resort to any other remedy or right for the
recovery of rent, charges or damages for such breach be construed as a waiver or
release of the right to insist upon the forfeiture and to obtain possession. No
reentering or taking possession of the Demised Premises, or making of repairs,
alterations or improvements thereto, or reletting thereof, shall be construed as
an election on the part of Landlord to terminate this Lease unless written
notice of such election be given by Landlord to Tenant.
(j) No waiver of any provision of this Lease shall be implied by any
failure of Landlord to enforce any remedy allowed for the violation of such
provision, even if such violation is continued or repeated, and no express
waiver shall affect any provision other than the one(s) specified in such waiver
and only for the time and in the manner specifically stated. No receipt of
monies by Landlord from Tenant after the termination of this Lease shall in any
way alter the length of the Term or of Tenant's right of possession hereunder or
after the giving of any notice shall reinstate, continue or extend the Term or
affect any notice given to Tenant prior to the receipt of such moneys, it being
agreed that after the service of notice or the commencement of a suit or after
final judgment for possession of the Demised Premises, Landlord may receive and
collect any rent due, and the payment of said rent shall not waive or affect
said notice, suit or judgment.
18. LANDLORD'S RIGHT TO CURE. Landlord may (but shall not be
obligated), on fifteen (15) days notice to Tenant (except that no notice need be
given in case of emergency) cure on behalf of Tenant any default hereunder by
Tenant, and the cost of such cure (including any attorney's fees incurred) shall
be deemed additional rent payable upon demand.
19. INSURANCE.
(a) Tenant shall at all times during the Term, including any
renewal or extension thereof, maintain in full force and effect with respect to
the Demised Premises and Tenant's use thereof, (i) comprehensive public
liability insurance, covering injury to person and property in amounts at least
equal to Two Million Dollars ($2,000,000) per occurrence and annual aggregate
limit for bodily injury and One Million Dollars ($1,000,000) per occurrence and
annual aggregate limit for property damage, with increases in such limits as
Landlord may from time to time reasonably request, and (ii) all-risk or fire and
extended coverage insurance upon Tenant's personal property and leasehold
improvements in the Demised Premises for the full replacement value of such
personal property and leasehold improvements. Notwithstanding the foregoing, so
17
long as the original named Tenant is the holder of the Tenant's interest in this
Lease, Tenant shall have the right, at its option, to self-insure up to One
Million Dollars ($1,000,000) against the risks that would be covered under the
insurance policies required by Tenant pursuant clause (i) above pursuant to a
self-insurance program administered by Tenant. If and to the extent Tenant
implements any self-insurance program, then Tenant acknowledges that Tenant
shall be responsible for the amounts that would, but for such self-insurance by
Tenant, be payable in accordance with the terms and conditions of the policies
required to fulfill the minimum requirements of this Section 19. All liability
insurance policies (excepting any workers compensation policy carried by Tenant)
shall name Landlord and at Landlord's request any mortgagee of all or any
portion of the Complex as additional insureds. Tenant shall lodge with Landlord
duplicate originals or certificates of such insurance at or prior to the
Commencement Date, together with evidence of paid-up premiums, and shall lodge
with Landlord renewals thereof at least fifteen (15) days prior to expiration.
All such policies or certificates shall provide that such insurance coverage may
not be cancelled or materially amended unless Landlord and any mortgagee
designated by Landlord as aforesaid are given at least thirty (30) days prior
written notice of the same.
(b) Landlord shall at all times during the Term, including any
renewal or extension thereof, maintain in full force and effect with respect to
the Complex and the Buildings, (i) comprehensive public liability insurance,
covering injury to person and property in amounts at least equal to Two Million
Dollars ($2,000,000) per occurrence and annual aggregate limit for bodily injury
and One Million Dollars ($1,000,000) per occurrence and annual aggregate limit
for property damage and (ii) property insurance in an amount equal to at least
90% of the full replacement cost of the Buildings in the Complex. Landlord's
insurance obligation may be satisfied under so-called "blanket" insurance
policies covering other properties in addition to the Complex, and the coverage
limits may be satisfied by "umbrella" coverage.
20. WAIVER OF SUBROGATION. Each party hereto hereby waives any and
every claim which arises or which may arise in its favor against the other party
hereto during the Term, including any extension or renewal thereof, for any and
all loss of, or damage to, any of its property located within or upon or
constituting a part of the Building, to the extent that such loss or damage is
covered under an insurance policy or policies and to the extent such policy or
policies contain provisions permitting such waivers of claims. Each party agrees
to request its insurers to issue policies containing such provisions and if any
extra premium is payable therefor, the party which would benefit from the
provision shall have the option to pay such additional premium in order to
obtain such benefit.
21. LIABILITY. Tenant agrees that Landlord, the Property Manager and
their respective officers, employees and agents shall not be liable to Tenant,
and Tenant hereby releases said parties, for any personal injury or damage to or
loss of personal property in the Demised Premises from any cause whatsoever
unless such damage, loss or injury is the result of the negligence or willful
misconduct of Landlord, its agents or employees. Landlord shall not be liable to
Tenant for any such damage or loss whether or not the result of the negligence
or willful misconduct of Landlord, its agents or employees to the extent Tenant
would be covered by insurance that Tenant is required to carry hereunder. Tenant
shall and does hereby indemnify and hold Landlord harmless of and from all loss
or liability incurred by Landlord (including, without limitation, reasonable
attorney's fees) in connection with any failure of Tenant to fully perform its
obligations under this Lease and in connection with any personal injury or
damage of any type or nature occurring in, or resulting out of Tenant's use of,
the Demised Premises, unless due to the negligence or willful misconduct of
Landlord, its agents or employees.
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22. ENVIRONMENTAL MATTERS.
(a) Tenant shall conduct, and cause to be conducted, all operations
and activity at the Demised Premises in compliance with, and shall in all other
respects applicable to the Demised Premises comply with, all applicable present
and future federal, state, municipal and other governmental statutes,
ordinances, regulations, orders, directives and other requirements, and all
present and future requirements of common law, concerning the environment
(hereinafter collectively called "Environmental Statutes") including, without
limitation, (i) those relating to the generation, use, handling, treatment,
storage, transportation, release, emission, disposal, remediation or presence of
any material, substance, liquid, effluent or product, including, without
limitation, hazardous substances, hazardous waste or hazardous materials, (ii)
those concerning conditions at, below or above the surface of the ground and
(iii) those concerning conditions in, at or outside the Building.
(b) Tenant shall not cause or suffer or permit to occur in, on or
under the Demised Premises any generation, use, manufacturing, refining,
transportation, emission, release, treatment, storage, disposal, presence or
handling of hazardous substances, hazardous wastes or hazardous materials (as
such terms are now or hereafter defined under any Environmental Statute) or any
other material, substance, liquid, effluent or product now or hereafter
regulated by any Environmental Statute (all of the foregoing herein collectively
called "Hazardous Substances"), in violation of any Environmental Statutes or
any other applicable governmental requirements. Should Tenant, its agents,
employees or invitees cause any release of Hazardous Substances at the Demised
Premises, Tenant shall immediately contain, remove and dispose of, such
Hazardous Substances and any material that was contaminated by the release and
to remedy and mitigate all threats to human health or the environment relating
to such release. When conducting any such measures the Tenant shall comply with
all Environmental Statutes.
(c) Tenant hereby agrees to indemnify and to hold harmless Landlord
of, from and against any and all expense, loss or liability suffered by Landlord
by reason of Tenant's breach of any of the provisions of this Section,
including, but not limited to, (i) any and all expenses that Landlord may incur
in complying with any Environmental Statutes, (ii) any and all costs that
Landlord may incur in studying, assessing, containing, removing, remedying,
mitigating, or otherwise responding to, the release of any Hazardous Substance
or waste at or from the Demised Premises, (iii) any and all costs for which
Landlord may be liable to any governmental agency for studying, assessing,
containing, removing, remedying, mitigating, or otherwise responding to, the
release of a Hazardous Substance or waste at or from the Demised Premises, (iv)
any and all fines or penalties assessed, or threatened to be assessed, upon
Landlord by reason of a failure of Tenant to comply with any obligations,
covenants or conditions set forth in this Article, and (v) any and all legal
fees and costs incurred by Landlord in connection with any of the foregoing.
(d) Tenant's covenants, obligations and liabilities under this
Section shall survive the expiration or earlier termination of this Lease.
23. SUBORDINATION. This Lease shall not be subject or subordinate to
the terms and conditions of any underlying mortgages which may now or hereafter
encumber the Buildings and/or the Complex, or to any renewals, modifications,
consolidations, replacements or extensions thereof, unless and until the holder
of any such mortgage has delivered to Tenant a subordination and non-disturbance
agreement ("SNDA"), in form and substance reasonably satisfactory to Tenant,
which provides that, inter alia, so long as Tenant is not in default hereunder,
Tenant's occupancy will not be disturbed, and this Lease shall remain in full
force and effect in the event of a foreclosure of such mortgage. Tenant hereby
acknowledges and agrees that the form of SNDA
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attached hereto as Exhibit "E" is acceptable to Tenant. If Landlord subsequently
delivers to Tenant a form of SNDA required by any mortgagee of the Property that
meets the foregoing requirements, Tenant agrees to execute and return the same
to Landlord within seven (7) days after receipt thereof by Tenant.
24. ESTOPPEL STATEMENT. Each of Landlord and Tenant shall from time to
time, within seven (7) days after request by the other party, execute,
acknowledge and deliver to Landlord a statement certifying that this Lease is
unmodified and in full force and effect (or that the same is in full force and
effect as modified, listing any instruments or modifications), the dates to
which rent and other charges have been paid, and whether or not, to the best of
the knowledge of the party making such statement, the other party is in default
or whether the party making such statement has any claims or demands against the
other party (and, if so, the default, claim and/or demand shall be specified),
and such other information reasonably requested by the other party.
25. RELOCATION. Intentionally Omitted.
26. HOLDING-OVER. Should Tenant continue to occupy the Demised Premises
after the expiration of the Term, including any renewal or renewals thereof, or
after a forfeiture incurred, such tenancy shall (without limitation of any of
Landlord's rights or remedies therefor) be one at sufferance at a minimum
monthly rental equal to one hundred fifty percent (150%) of the rent payable for
the last month of the Term.
27. FINANCIAL STATEMENTS. Upon the request of any mortgagee,
prospective mortgagee or prospective purchaser of the Complex, Tenant shall
provide to Landlord complete copies of Tenant's latest publicly available,
annual financial statements and such other publicly available financial
information as may be reasonably requested by such mortgagee and/or purchaser.
28. RENT TAX. If, during the Term, including any renewal or extension
thereof, any tax is imposed upon the privilege of renting or occupying the
Demised Premises or upon the amount of rentals collected therefor, Tenant will
pay each month, as additional rent, a sum equal to such tax or charge that is
imposed for such month, but nothing herein shall be taken to require Tenant to
pay any income, estate, inheritance or franchise tax imposed upon Landlord.
29. QUIET ENJOYMENT. Tenant, upon paying the rent, and observing and
keeping all covenants, agreements and conditions of this Lease on its part to be
kept, shall quietly have and enjoy the Demised Premises during the term of this
Lease without hindrance or molestation by anyone claiming by or through
Landlord, subject, however, to the exceptions, reservations and conditions of
this Lease.
30. NOTICES. All notices required to be given by Landlord to Tenant
shall be sufficiently given by leaving the same upon the Demised Premises, by
overnight express delivery service or by courier service delivery against
written receipt or signed proof of delivery, or mailing the same by registered
or certified mail, return receipt requested, to Tenant's Address until the
Commencement Date and to the Demised Premises thereafter. Notices given by
Tenant to Landlord must be given by registered or certified mail, return receipt
requested, overnight express delivery service or by courier service delivery
against written receipt or signed proof of delivery, to Landlord at Landlord's
Address, with a copy to the Property Manager, and to such other person and
address as Landlord may from time to time designate in writing
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31. MISCELLANEOUS.
(a) Each of the parties hereto represents and it has dealt with no
broker, agent or other intermediary in connection with this Lease other than
Landlord's Broker, and that insofar as each knows, no other broker, agent or
other intermediary negotiated this Lease or introduced Tenant to Landlord. Each
of Landlord and Tenant agrees to indemnify, defend and hold the
other and its partners, employees, agents, their officers and partners, harmless
from and against any claims made by any broker, agent or other intermediary
other than Landlord's Broker with respect to a claim through such party for
broker's commission or fee or similar compensation brought by any person in
connection with this Lease, Landlord agrees to pay all commissions payable to
Landlord's Broker pursuant to a separate agreement between Landlord and
Landlord's Broker.
(b) The word "Tenant" as used in this Lease shall be construed to
mean tenants in all cases where there is more than one tenant, and the necessary
grammatical changes required to make the provisions hereof apply to
corporations, partnerships or individuals, men or women, shall in all cases be
assumed as though in each case fully expressed. This Lease shall not inure to
the benefit of any assignee, heir, legal representative, transferee or successor
of Tenant except in accordance with the provisions of Section13 of this Lease.
Subject to the foregoing limitation, each provision hereof shall extend to and
shall, as the case may require, bind and inure to the benefit of Tenant and its
heirs, legal representatives, successors and assigns.
(c) The term "Landlord" as used in this Lease means the fee owner
of the Complex or, if different, the party holding and exercising the right, as
against all others (except space tenants of the Complex) to possession of the
entire Complex. In the event of the voluntary transfer of such ownership or
right to a successor-in-interest of Landlord, Landlord shall be freed and
relieved of all liability and obligation hereunder which shall thereafter accrue
(and, as to any unapplied portion of Tenant's security deposit, Landlord shall
be relieved of all liability therefor upon transfer of such portion to its
successor in interest) and Tenant shall look solely to such successor in
interest for the performance of the covenants and obligations of the Landlord
hereunder accruing after such transfer (either in terms of ownership or
possessory rights). Subject to the foregoing, the provisions hereof shall be
binding upon and inure to the benefit of the successors and assigns of Landlord.
(d) Notwithstanding anything to the contrary contained in this
Lease, it is expressly understood and agreed by Tenant that none of Landlord's
covenants, undertakings or agreements are made or intended as personal
covenants, undertakings or agreements by Landlord or its partners, shareholders
or trustees, or any of their respective partners, shareholders or trustees, and
any liability for damage or breach or nonperformance by Landlord, or for
Landlord's negligence, shall be collectible only out of Landlord's interest in
the Building and no personal liability is assumed by, nor at any time may be
asserted against, Landlord or its partners, shareholders or trustees or any of
its or their partners, shareholders, trustees, officers, agents, employees,
legal representatives, successors or assigns, if any; all such liability, if
any, being expressly waived and released by Tenant. Notwithstanding anything to
the contrary contained in this Lease, in no event shall Landlord be liable to
Tenant for any consequential damages, lost profits, loss of business or other
similar damages, regardless of whether the same arises out of the negligence of
Landlord, its agents or employees.
(e) Landlord and Landlord's agents have made no representation,
agreements, conditions, warranties, understandings, or promises, either oral or
written, other than as herein set forth, with respect to this Lease, the
Buildings, the Complex, the Demised Premises, or otherwise.
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(f) Time is of the essence of this Lease and all of its provisions
(g) If Landlord is delayed or prevented from performing any of its
obligations under this Lease by reason of causes beyond Landlord's control, the
period of such delay or prevention shall be deemed added to the time herein
provided for the performance of any such obligation by Landlord.
(h) Tenant shall have the right to record a short form memorandum
of this Lease in form and substance reasonably satisfactory to Landlord, and
Landlord shall execute any such memorandum within five (5) business days after a
request to do so is received by Landlord from Tenant.
(i) Any rule of construction to the effect that any ambiguities are
to be resolved against the drafting party shall not apply to the interpretation
of this Lease or any amendments or exhibits hereto.
32. PRIOR AGREEMENT, AMENDMENTS. This Lease, the exhibits, and any
riders attached hereto and forming a part hereof set forth all of the promises,
agreements, conditions, warranties, representations and understandings between
Landlord and Tenant relative to the Premises and this leasehold. No alteration,
amendment, modification, waiver, understanding or addition to this Lease shall
be binding upon Landlord or Tenant unless reduced to writing and signed by
Landlord and Tenant.
33. CAPTIONS. The captions of the paragraphs in this Lease are inserted
and included solely for convenience and shall not be considered or given any
effect in construing the provisions hereof.
34. SEVERABILITY If any provision contained in this Lease shall, to any
extent, be invalid or unenforceable, the remainder of this Lease (and the
application of such provision to the persons or circumstances, if any, other
than those as to which it is invalid or unenforceable) shall not be affected
thereby, and each and every provision of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
35. GOVERNING LAW. This Lease shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
36. INTERIM OCCUPANCY. From and after the execution of this Lease
through the Commencement Date (the "Interim Occupancy Period"), Landlord hereby
grants Tenant a license to continue to occupy that portion of the Complex
currently occupied by Tenant and consisting of approximately 80,000 square feet
(the "Existing Premises") at a monthly rental rate of $56,854.00. Upon the
Commencement Date, Tenant shall vacate and surrender the Existing Premises in
good condition, removing therefrom all of Tenant's furniture, trade fixtures and
equipment, and relocate to the Demised Premises.
37. DELIVERY FOR EXAMINATION. DELIVERY OF THE LEASE TO TENANT SHALL NOT
BIND LANDLORD IN ANY MANNER, AND NO LEASE OR OBLIGATIONS OF LANDLORD SHALL ARISE
UNTIL THIS INSTRUMENT IS SIGNED BY BOTH LANDLORD AND TENANT.
38. RENEWAL OPTION. Tenant shall have the option to extend the Term for
three (3) separate, consecutive renewal periods (each, a "Renewal Option"),
under and subject to the following terms and conditions:
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(a) The first renewal term (the "First Renewal Term") shall be for
a five (5) year period commencing on the day immediately following the
expiration date of the original Term of this Lease and expiring at midnight on
the day immediately preceding the fifth (5th) anniversary thereof. The second
renewal term (the "Second Renewal Term") shall be for a five (5) year period
commencing on the day immediately following the expiration date of the First
Renewal Term and expiring at midnight on the day immediately preceding the fifth
(5th) anniversary thereof. The third renewal term (the "Third Renewal Term")
shall be for a four (4) year period commencing on the day immediately following
the expiration date of the Second Renewal Term and expiring at midnight on the
day immediately preceding the fourth (4th) anniversary thereof. If Tenant fails
to exercise any Renewal Option, all subsequent Renewal Options shall be null and
void and of no further force and effect.
(b) Tenant must exercise each Renewal Option, if at all, upon at
least 180 days' written notice to Landlord prior to the expiration date of the
then current Term of this Lease, time being of the essence.
(c) At the time Tenant delivers its notice of election to exercise
the applicable Renewal Option to Landlord, this Lease shall be in full force and
effect, Tenant shall not have assigned this Lease or sublet the Demised
Premises, and Tenant shall not be in default in the performance of any of its
obligation hereunder.
(d) Each Renewal Term shall be on the same terms and conditions
contained in this Lease, except that (i) subject to the last two sentences of
this subparagraph (d), the Annual Base Rent shall be ninety-five percent (95%)
of the then current "Fair Market Rental Rate" for the Demised Premises, but in
no event more than one hundred fifteen percent (115%) of the Annual Base Rent
payable during the final year of the then current Term, and (ii) Tenant shall
not be entitled to any allowances or other concessions with respect to the
Renewal Terms. Notwithstanding the foregoing, in the event that Tenant shall
have assigned this Lease or sublet all or any portion of the Demised Premises,
then the Annual Base Rent for the applicable Renewal Term (and each Renewal Term
thereafter) shall be the greater of (i) ninety-five (95%) of the then current
"Fair Market Rental Rate", and (ii) the Annual Base Rent payable during the
final year of the then current Term. If Tenant shall assign this Lease or sublet
all or any portion of the Demised Premises during any Renewal Term, then the
Annual Base Rent shall automatically increase to the greater of (i) ninety-five
(95%) of the then current "Fair Market Rental Rate", and (ii) the Annual Base
Rent payable during the final year of the immediately preceding Term, which
adjustment shall be made as of the effective date of the assignment or sublease.
(e) As used herein, the term "Fair Market Rental Rate" shall mean
the average of the annual rental rates then being charged by Landlord for office
space in the Complex for leases commencing on or about the commencement of the
Renewal Term (or, if there are not at least two (2) leases for tenants in the
Complex that commence on or about the commencement of the Renewal Term, then the
annual rental rates then being charged for Class "A" office space in the
Conshohocken, Pennsylvania market), taking into consideration the use, location
and floor level of the applicable building, leasehold improvements or allowances
provided, rental concessions, the term of the lease under consideration, the
extent of services provided thereunder, the creditworthiness of Tenant, annual
escalations and other adjustments to the base rental and any other relevant term
or condition in making such evaluation. Landlord shall determine the Fair Market
Rental Rate using its good faith judgment and shall provide written notice of
such rate within fifteen (15) days after Tenant's exercise notice pursuant to
this Section. Tenant shall thereupon have the following options: (i) to accept
such proposed "Fair Market Rental Rate", (ii) to rescind its
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exercise of the renewal option, or (iii) to notify Landlord in writing that
Tenant objects to the proposed rental rate. Tenant must provide Landlord with
written notification of its election within fifteen (15) days after Tenant's
receipt of Landlord's notice, otherwise Tenant shall be deemed to have elected
clause (i) above and to have accepted Landlord's proposed "Fair Market Rental
Rate." If Tenant objects to Landlord's proposed "Fair Market Rental Rate" in
accordance with clause (iii) above, Landlord and Tenant shall attempt to
negotiate a mutually acceptable rental rate within fifteen (15) days following
notification by Tenant, and if such negotiations have not been concluded within
such fifteen (15) day period, either party may require determination of the Fair
Market Rental Rate for the Renewal Term by giving written notice to the other no
later than ten (10) days after the expiration of such fifteen (15) day period,
which notice shall designate a MAI real estate appraiser or real estate broker
with at least five (5) years experience in office leasing in the suburban
Philadelphia market. Within ten (10) days after receipt of such notice, the
other party to this Lease shall select a real estate appraiser/broker meeting
the aforesaid requirements and give written notice of such selection to the
initiating party. If the two (2) real estate appraisers/brokers fail to agree
upon the Fair Market Rental Rate within ten (10) days after selection of the
second appraiser/broker, the two (2) appraisers/brokers shall select a third
(3rd) real estate appraiser/broker meeting the foregoing requirements to
determine the Fair Market Rental Rate within ten (10) days after the appointment
of the third (3rd) appraiser/broker. The Fair Market Rental Rate applicable to
the applicable Renewal Term shall equal the arithmetic average of such three (3)
determinations; provided, however, that if one (1) appraiser's/broker's
determination deviates more than five percent (5%) from the median of the three
(3) determinations, the Fair Market Rental Rate shall be an amount equal to the
average of the other two (2) determinations. The determination of Fair Market
Rental Rate shall be final, binding and conclusive on Landlord and Tenant
(f) Except for the specific Renewal Options set forth above, there
shall be no further privilege of renewal.
[signatures on next page]
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IN WITNESS WHEREOF, the parties hereto have executed this Lease or
caused this Lease to be executed by their duly authorized representatives the
day and year first above written.
LANDLORD:
QUAKER PARK ASSOCIATES, L.P.,
a limited partnership
By: QUAKER PARK, INC.,
Attest: its authorized general partner
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------- ----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: President
Attest: By: QUAKER QP, INC.,
its authorized general partner
_______________________________ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
TENANT:
Attest: QUAKER CHEMICAL CORPORATION
____________________________ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and
Chief Operating Officer
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