EXHIBIT 10.44
LEASE AGREEMENT
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THIS LEASE AGREEMENT ("Lease"), dated December 23, 1999, between ELEVEN
COLONIAL PENN PLAZA ASSOCIATES ("Landlord"), and ASHTON TECHNOLOGY GROUP, INC.,
a Delaware corporation ("Tenant").
1. Premises. In consideration of the rents, terms, provisions and
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covenants of this Lease, Landlord hereby leases unto Tenant and Tenant hereby
rents and accepts from Landlord those certain premises containing approximately
11,833 rentable square feet, located on the Fourth Floor (the "Premises"). The
Premises are outlined on the floor plan attached hereto as Exhibit A and
incorporated herein by reference. The Premises are contained in that certain
building known as Eleven Penn Center (or such other name as Landlord may from
time to time designate) and located at the northeast corner of 19th and Market
Streets, Philadelphia, Pennsylvania (the "Building"), which Building contains
approximately Six Hundred Seventy Nine Thousand Six Hundred Eighteen (679,618)
net rentable square feet of office space and approximately Three Thousand Eight
Hundred Fifty-Five (3,855) net rentable square feet of retail space. The land on
which the Building is situated, together with all improvements located thereon
(collectively, the "Property"), is more particularly described on Exhibit B,
attached hereto and incorporated herein by reference.
2. Term.
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(a) Initial Term. Subject to and upon the terms and conditions set
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forth below, the initial term of this Lease shall be for a period of ten (10)
Lease Years (as hereinafter defined), commencing on the Commencement Date (as
hereinafter defined) and ending on last day of the last month of the tenth Lease
Year.
(b) Definitions. For purposes of this Lease, the following terms
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shall have the following meanings:
(i) "Commencement Date" shall mean the date upon which the
Premises are substantially completed (as hereinafter defined). Promptly upon
determination of the Commencement Date, Landlord and Tenant shall execute a
memorandum, setting forth the Commencement Date and the expiration date of this
Lease, in form and substance substantially similar to that attached hereto as
Exhibit C and incorporated by reference.
(ii) "Lease Year" shall mean each twelve (12) month period
commencing on the first day of the first full month after the Commencement Date
and each anniversary thereafter during the Term (as hereinafter defined) of this
Lease; provided, however, that if the Commencement Date is the first day of the
month, the first Lease Year shall commence on the Commencement Date. The first
Lease Year shall commence on the Commencement Date and end on the last day of
the last month of the first Lease Year regardless of whether the first Lease
Year is longer than twelve (12) months.
(iii) "Term" shall mean the initial term of this Lease and any
renewals or extensions thereof.
(iv) "Base Year" shall mean calendar year 1999.
3. Rental.
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(a) Base Rental. Tenant shall pay to Landlord, as base rental (the
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"Base Rental") during the Term of this Lease, as follows: (i) for the first
Lease Year, Two Hundred Thirty Six Thousand Six Hundred Sixty Dollars
($236,660.00) per annum, payable in equal monthly installments of Nineteen
Thousand Seven Hundred Twenty- One and 67/100 Dollars ($19,721.67); (ii) for the
second Lease Year, Two Hundred Forty Two Thousand Five Hundred Seventy-Six and
50/100 Dollars ($242,576.50) per annum, payable in equal monthly installments of
Twenty Thousand Two Hundred Fourteen and 71/100 Dollars ($20,214.71); (iii) for
the third Lease Year, Two
Hundred Forty Eight Thousand Four Hundred Ninety-Three Dollars ($248,493.00) per
annum, payable in equal monthly installments of Twenty Thousand Seven Hundred
Seven and 75/100 Dollars ($20,707.75); (iv) for the fourth Lease Year, Two
Hundred Fifty Four Thousand Four Hundred Nine and 50/100 Dollars ($254,409.50)
per annum, payable in equal monthly installments of Twenty One Thousand Two
Hundred and 79/100 Dollars ($21,200.79); (v) for the fifth Lease Year, Two
Hundred Sixty Thousand Three Hundred Twenty-Six Dollars ($260,326.00) per annum,
payable in equal monthly installments of Twenty One Thousand Six Hundred Ninety-
Three and 83/100 Dollars ($21,693.83); (vi) for the sixth Lease Year, Two
Hundred Sixty Six Thousand Two Hundred Forty-Two and 50/100 Dollars
($266,242.50) per annum, payable in equal monthly installments of Twenty Two
Thousand One Hundred Eighty-Six and 88/100 Dollars ($22,186.88); (vii) for the
seventh Lease Year, Two Hundred Seventy Two Thousand One Hundred Fifty-Nine
Dollars ($272,159.00) per annum, payable in equal monthly installments of Twenty
Two Thousand Six Hundred Seventy-Nine and 92/100 Dollars ($22,679.92); (viii)
for the eighth Lease Year, Two Hundred Seventy Eight Thousand Seventy-Five and
50/100 Dollars ($278,075.50) per annum, payable in equal monthly installments of
Twenty Three Thousand One Hundred Seventy-Two and 96/100 Dollars ($23,172.96);
(ix) for the ninth Lease Year, Two Hundred Eighty Three Thousand Nine Hundred
Ninety-Two Dollars ($283,992.00) per annum, payable in equal monthly
installments of Twenty Three Thousand Six Hundred Sixty-Six Dollars
($23,666.00); (x) for the remainder of the term of this Lease commencing with
the tenth Lease Year, Two Hundred Eighty Nine Thousand Nine Hundred Eight and
50/100 Dollars ($289,908.50) per annum, payable in equal monthly installments of
Twenty Four Thousand One Hundred Fifty-Nine and 04/100 Dollars ($24,159.04).
Each monthly installment of Base Rental shall be due and payable in advance, on
or before the first day of each and every month during the Term, without notice,
demand or set-off; provided, however, that the first month's rent shall be due
and payable upon execution of this Lease.
(b) Definitions. For purposes of this Lease, the following terms shall
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have the following meanings:
(i) "Tenant's Proportionate Share of Operating Expenses" shall mean
a percentage factor, determined by dividing the net rentable square footage
contained in the Premises by the net rentable square footage contained in the
office portion of the Building, or 1.7411 percent (1.7411%).
(ii) "Tenant's Proportionate Share of Real Estate Taxes" shall mean a
percentage factor, determined by dividing the net rentable square footage
contained in the Premises by the net rentable square footage contained in the
office and retail portions of the Building, or 1.7313 percent (1.7313%).
(iii) "Operating Expenses" shall mean those expenses paid or incurred
by or on behalf of Landlord in respect to the management, operation, service and
maintenance of the Property. Operating Expenses shall include, but not be
limited to, (A) premium costs for liability, boiler, extended coverage, casualty
and other insurance covering the Property to be maintained by Landlord and
required by the terms of this Lease; (B) electricity, gas, water and other
utility charges for the Property; (C) repair and maintenance of HVAC systems,
elevators and other mechanical systems; (D) repair and maintenance of the Common
Areas (as hereinafter defined) and the Building structure and roof; (E) trash
removal and snow removal; (F) janitorial service; (G) wages, salaries and fees
of operating, auditing, accounting, maintenance and management personnel in
connection with the Property; (H) all payroll charges for such personnel, such
as unemployment and social security taxes, workers' compensation, health,
accident and group insurance, and other so-called fringe benefits; (I) rental
charges for office space chargeable to the operation and management of the
Property; (J) license permits and inspection fees; (K) supplies and materials
used in the operation and management of the Property; (L) furnishings and
equipment not treated by Landlord as capital expenditures of the Property; (M)
the cost of any labor saving devices that may, from time to time, be placed in
operation as a part of Landlord's maintenance program; (N) personal property
taxes on property used in the operation, maintenance, service and management of
the Property; (O) the cost, as reasonably amortized by Landlord and in
accordance with generally accepted accounting principles, with interest at the
rate of ten percent (10%) per
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annum on the unamortized amount, of any capital improvement made after
completion of initial construction of the Building which reduces Operating
Expenses, but in an amount not to exceed the reduction in Operating Expenses for
the relevant year; (P) the cost, as reasonably amortized by Landlord, with
interest at the rate of ten percent (10%) per annum on the unamortized amount,
of any improvement, capital or otherwise, made after completion of initial
construction of the Building, which directly enhances the safety of the tenants
in the Building generally; (Q) management fees relating to the Property; (R) the
cost of any installation or improvement, capital or otherwise, required by
reason of any law, ordinance or regulation, which requirement did not exist on
the date of the Lease and is generally applicable to similar office buildings;
and (S) all other reasonable expenses necessary for the operation and management
of the Property.
(iv) "Real Estate Taxes" shall mean all taxes and assessments, special
or otherwise, exclusive of penalties or discounts levied upon or with respect to
the Property, including the Premises, imposed by any federal, state or local
governmental agency, including, without limitation, any form of real property
tax or assessment, rapid transit tax or assessment, benefit assessment, business
or license fee or tax, commercial rental tax, assessment for Center City
District services or any use, occupancy, excise, sales or other like taxes
(other than general income taxes on rent or other income from the Building).
Real Estate Taxes also shall include the expense of contesting the amount or
validity of any such taxes, charges or assessments, such expense to be
applicable to the period of the item contested. Real Estate Taxes shall not,
however, include income, franchise, capital stock, estate or inheritance taxes
unless Landlord reasonably determines that such taxes are in lieu of real estate
taxes, assessments, rental, occupancy and other like excise taxes. For purposes
of this Lease, Real Estate Taxes for any calendar year shall be those taxes the
last timely payment date for which occurs within such calendar year. In case of
special taxes or assessments payable in installments, only the amount of the
installment(s) the last timely payment date for which occurs on or after the
first day and on or before the last day of such year shall be included in Real
Estate Taxes for that year.
(c) Additional Rental. For and with respect to each calendar year
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subsequent to the Base Year, Tenant shall pay to Landlord, as "Additional
Rental", (i) Tenant's Proportionate Share of Operating Expenses of the total
dollar increase, if any, in Operating Expenses for such year over Operating
Expenses for the Base Year and (ii) Tenant's Proportionate Share of Real Estate
Taxes of the total dollar increase, if any, in Real Estate Taxes for such year
over Real Estate Taxes for the Base Year (collectively the "Tax and Operating
Expense Adjustment"). Said Additional Rental shall be prorated on a per diem
basis for any partial calendar year included within the Term.
(d) Payment of Tax and Operating Expense Adjustment. To provide for
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current payments of Operating Expenses and Real Estate Taxes, Tenant shall pay
the Tax and Operating Expense Adjustment, as estimated by Landlord from time to
time, in twelve (12) monthly installments, commencing on the first day of the
month following the month in which Landlord notifies Tenant of the amount of its
estimated Tax and Operating Expense Adjustment. It is intended that the
estimated amount of Tenant's Tax and Operating Expense Adjustment shall be made
for each year and Landlord shall then reconcile such estimated expenses in the
following year based on actual Operating Expenses and Real Estate Taxes for such
year paid by Landlord. If Tenant's Tax and Operating Expense Adjustment shall
be greater than or less than the aggregate of all installments so paid on
account to Landlord for such twelve (12) month period, then within ten (10) days
of Tenant's receipt of Landlord's statement of reconciled Real Estate Taxes and
Operating Expenses ("Landlord's Statement"), Tenant shall pay to Landlord the
amount of such underpayment, or Landlord shall credit Tenant for the amount of
such overpayment against the next maturing installment(s) of rent, as the case
may be. If during the last Lease Year, Tenant shall be owed a credit for Tax
and Operating Expense overpayments, Landlord shall refund the amount of such
credit to Tenant within thirty (30) days after Tenant's receipt of Landlord's
Statement. The obligation of Tenant with respect to the payment of Tenant's Tax
and Operating Expenses Adjustment shall survive the termination of this Lease.
Any payment, refund, or credit made pursuant to this subparagraph 3(d) shall be
made without prejudice to any right of Tenant to dispute Landlord's Statement as
hereinafter provided, or of Landlord to correct any item(s) as billed pursuant
to the
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provisions hereof. Landlord's failure to give Landlord's Statement shall
not constitute a waiver by Landlord of its right to recover rent that is due and
payable pursuant to this subparagraph 3(d).
(e) Stabilization. Tenant's Proportionate Share of Operating Expenses is
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a fixed percentage and does not vary with changing occupancy levels of the
Building. Operating Expenses are computed for the Building as a whole.
Accordingly, in order to stabilize the calculation of increases in Operating
Expenses on a rentable square foot basis for the Premises, a further adjustment
is to be made as follows: In determining Operating Expenses for any year
(including the Base Year), if the Building was less than fully occupied during
such entire year, or was not in operation during such entire year, then
Operating Expenses shall be annualized by Landlord (taking into account seasonal
variations) and adjusted to reflect the amount that such expenses would normally
be expected to have been, in the reasonable estimate of Landlord, had the
Building been fully occupied and operational throughout such year, except that
in no event shall such adjustment result in an amount less than the actual
Operating Expenses.
(f) Dispute of Operating Expenses and Taxes. If Tenant questions in
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writing Landlord's Statement (or a revised Landlord's Statement as described
below), and if the question is not amicably settled between Landlord and Tenant
within thirty (30) days after Landlord's Statement (or revised Landlord's
Statement) has been given, Landlord shall, during the sixty (60) days next
following the expiration of such thirty (30) day period, employ an independent
certified public accountant to audit Landlord's Statement. The determination of
such accountant shall be final, conclusive and binding upon Landlord and Tenant.
Tenant understands that the actual itemization of, and the amount of individual
items constituting Landlord's Statement is confidential; and while Landlord
shall keep and make available to such accountant all records in reasonable
detail, and shall permit such accountant to examine and audit such of Landlord's
records as may reasonably be required to verify Landlord's Statement, at
reasonable times during business hours, Landlord shall not be required to (and
the accountant shall not be permitted to) disclose to any person, firm or
corporation, other than Tenant, any such details (it being the intent of the
parties that such accountant shall merely certify to Landlord and to Tenant the
correct amount of Landlord's Statement for the calendar year). Tenant shall not
disclose to any party any information regarding said details of Landlord's
Statement. Any change in Landlord's Statement required by such accountant's
determination shall be made within thirty (30) days after such determination has
been rendered. The expenses involved in such determination shall be borne by
Tenant and deemed to be Other Charges (as hereinafter defined) under this Lease,
unless the results of such audit determine that the difference between the
Landlord's Statement as determined by the audit and Landlord's Statement as
determined by Landlord is greater than ten percent (10%) of Landlord's Statement
as determined by Landlord, in which case such expenses shall be borne by
Landlord. If Tenant does not, in writing, question the reconciled Landlord's
Statement within thirty (30) days after such statement has been given, Tenant
shall be deemed to have approved and accepted such reconciled Landlord's
Statement.
(g) Adjustments to Operating Expenses and Real Estate Taxes. If any error
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occurs or Landlord or Landlord's accountants discover facts or circumstances,
which error or discovery causes Tenant's Tax and Operating Expense Adjustment
for any period to increase or decrease, upon notice by Landlord to Tenant of the
adjustment to Tenant's Tax and Operating Expense Adjustment for such calendar
year, said adjustment and corresponding deficiency or overpayment shall be paid
by Tenant or taken as a credit by Tenant according to the provisions set forth
above. If during the last Lease Year, Tenant shall be owed a credit for
Operating Expenses or Real Estate Taxes overpayments, Landlord shall refund the
amount of such credit to Tenant, within thirty (30) days after Tenant's receipt
of Landlord's Statement. This provision shall survive the termination of the
Lease.
(h) Real Estate Tax Appeal. Landlord shall retain the sole right to
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participate in any proceedings to establish or contest the amount of Real Estate
Taxes. If a complaint against valuation, protest of tax rates or other action
increases or decreases the Real Estate Taxes for any calendar year, resulting in
an increase or decrease in rent hereunder, the Real Estate Taxes for the
affected calendar year shall be recalculated accordingly and the resulting
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increased rent plus the reasonable expenses incurred in connection with such
contest, or decreased rent, less the expenses incurred in connection with such
contest, shall be paid simultaneously with or applied as a credit against, as
the case may be, the rent next becoming due.
(i) Other Charges. All costs, expenses and other sums that Tenant
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assumes or agrees to pay to Landlord pursuant to this Lease ("Other Charges")
shall be deemed rental and, in the event of nonpayment thereof, Landlord shall
have all the rights and remedies herein provided for in case of nonpayment of
Base Rental. If a monthly installment of rent is not received on or before the
fifth (5th) business day of the month in which it is due, other remedies for
nonpayment of rent notwithstanding, Tenant shall pay to Landlord, after written
notice from Landlord (provided Landlord shall not be required to provide such
notice more than once in any twelve month period) a late charge of five percent
(5%) of such installment as rent for the purpose of defraying Landlord's
administrative expenses incident to the handling of such overdue payment, and
such past due rent shall bear interest at the greater of (i) a rate of interest
equal to ten percent (10%) per annum; or (ii) a rate of interest equal to the
prime rate as announced from time to time by Bank One, Columbus, N.A., plus
three percent (3%) per annum (the "Default Rate"), for each day from the first
day of the month through the date such monthly installment of rent is received
by Landlord. For purposes of this Lease, "rent" shall mean Base Rental,
Additional Rental, and Other Charges.
(j) Place of Payment. Tenant shall pay all rent and other charges
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due under this Lease without demand, deduction or set off to Landlord c/o CB
▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc., ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or at such
other place as Landlord may designate from time to time hereafter by written
notice to Tenant.
4. Construction.
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(a) Improvements to be Constructed. Landlord, at its own cost and
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expense, shall perform the work and make the installations in the Premises in
accordance with the space plan SK5-04 dated October 29, 1999 prepared by Space
Design Incorporated and the related scope of work letter, both of which are
attached hereto as Exhibit D and incorporated herein by reference (the "Plans").
Landlord shall pay for the costs of the preparation of the Plans and the
construction documents in connection therewith and shall reimburse Tenant for
the cost of preparing the preliminary space plans for the Premises. Except as
expressly set forth in Exhibit D, Landlord has made no promise to alter, remodel
or improve the Premises, the Building or the Property.
(b) Work Prior to Commencement Date. All work in accordance with the
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Plans ("Work") in the Premises is estimated to be substantially completed prior
to March 1, 2000 (the "Estimated Completion Date"). Tenant may make changes in
the Plans on or before December 10, 1999; provided, however, that in such event
Landlord shall be given a reasonable extension of time to complete Work after
the Estimated Completion Date. Any extension of time and modifications to the
Plans shall be in writing, dated and signed by both parties. The Estimated
Completion Date shall be postponed in the event of (i) the unavailability of
materials and equipment that have been specified and requested by Tenant or (ii)
delays caused by acts of God, strikes and other events beyond the reasonable
control of Landlord, and neither circumstance shall give rise to liability of
Landlord.
(c) Bidding Process. Landlord has agreed to bid the Work to at
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least three (3) reputable general contractors. Landlord and Tenant shall
cooperate in determining which general contractors are offered the right to bid
on the Work, provided, however, Landlord shall make the final determination.
Landlord and Tenant shall cooperate in evaluating the results of the bidding
process and Landlord, in consultation with Tenant, shall select the general
contractor with the lowest qualified bid to do the Work in accordance with the
provisions of this Section 4(c).
(d) Availability of Premises Prior to Commencement Date. If Landlord,
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at Tenant's request, makes the Premises available to Tenant before the
Commencement Date to decorate, furnish, and equip the Premises, Tenant
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shall not interfere with the completion of Work. Tenant's use of the Premises
for such work shall not create a landlord-tenant relationship between the
parties, or constitute occupancy of the Premises within the meaning of the next
sentence, but the provisions of Paragraphs 12 and 13 of this Lease shall apply.
(e) Substantial Completion. As used herein, Work in the Premises
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shall be "substantially completed" when said work has been completed in
accordance with the Plans (subject to the completion of punch list items), which
will, except for any improvements or work to be performed by Tenant, allow
Tenant to utilize the Premises for its intended purposes without material
interference to the customary business activities of Tenant by reason of the
completion of Work.
(f) Delays. In the event of delays in substantial completion of the
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Premises by reason of any of the following, rent shall commence to accrue as if
the delay had not occurred. Accordingly, on the date the Premises are
substantially completed, Tenant shall pay to Landlord, on account of such
accrued rent, 1/365 of the annual Base Rental multiplied by the aggregate number
of days of such delays:
(i) changes in the work to be performed by Landlord in
preparing the Premises for Tenant's occupancy, which are requested by Tenant
after Landlord's approval of Tenant's plans and specifications; or
(ii) delays, not caused by Landlord, in furnishing materials or
procuring labor required for installations or work in the Premises which are not
customarily provided by Landlord for office tenants in the Building, 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 or to
return to installations or work customarily provided by Landlord for office
tenants, and further provided that, in the event Tenant shall specify such
alternative materials or requirements, any delay incurred prior to Landlord's
notice of the anticipated delay with respect to the work in question shall not
be considered to be a delay chargeable to Tenant under this Section 4(e) (and
shall therefore not be subtracted in determining the Commencement Date); or
(iii) any failure by Tenant, without regard to any grace period
applicable thereto, to furnish any required plan, information, approval or
consent within a required period of time.
(g) Condition of Premises. Except as otherwise agreed to in writing,
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Tenant's taking possession of the Premises shall be conclusive evidence against
Tenant that the Premises were in good order and satisfactory condition when
Tenant took possession. Landlord has made no representation respecting the
condition of the Premises, the Building or the Property, except as is expressly
set forth in Exhibit D. At the termination of this Lease, by lapse of time or
otherwise, Tenant shall remove all Tenant's property, including but not limited
to, trade fixtures, from the Premises, and shall return the Premises broom-clean
and in as good a condition as when Tenant took possession or as same may
thereafter have been put by Landlord, except for ordinary wear and tear, loss by
fire or other casualty, and repairs that Landlord is required to make under this
Lease. If Tenant fails to remove any or all of its property upon termination
of this Lease, such property shall be deemed to be abandoned and shall become
the property of Landlord.
(h) Effect of Delays. Landlord presently estimates that the date of
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substantial completion of the Premises will be March 1, 2000. If substantial
completion of the Premises shall occur at a later date, or if Landlord shall be
delayed in the delivery of possession of the Premises to Tenant, or if repairs
or improvements of the Premises to be performed by Landlord are not completed,
or for any other reason, whether or not within Landlord's control, Landlord
shall not be subject to any liability to Tenant. Under such circumstances, but
subject to the provisions of Section 4(e) concerning delays attributable to
Tenant, the rent reserved and covenanted to be paid herein shall not
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commence until possession of the Premises can be given to Tenant in the required
state, and no such failure to give possession shall in any other respect affect
the validity of this Lease or any obligation of the Tenant hereunder.
(i) Overload. To coordinate orderly move-ins and move-outs, no
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furniture, freight or equipment of any kind exceeding three hundred (300) pounds
shall be brought into the Building without prior notice to Landlord and Landlord
shall designate the time and manner of moving of the same. Landlord shall have
the right to prescribe the weight, size and position of all safes and other
heavy equipment brought into the Building and also the times and manner of
moving the same in and out of the Building. Safes or other heavy objects shall,
if considered necessary by Landlord, stand on supports of such thickness as is
necessary to properly distribute the weight. Landlord will not be responsible
for loss of or damage to any such safe or property from any cause, and all
damage done to the Building by moving or maintaining any such safe or other
property shall be repaired at Tenant's expense.
5. Use of the Premises.
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(a) Use. Tenant shall use the Premises for the conduct of general
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office use and computing facilities and broker/dealer operations and for no
other purpose whatsoever. Tenant shall not, without the prior written consent of
Landlord, exhibit, sell or offer for sale on the Premises or in the Building any
article or thing, except those articles and things essentially connected with
Tenant's stated use of the Premises.
(b) Advertisement. Tenant shall not advertise the business,
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profession or activities of Tenant conducted in the Building in any manner which
violates the letter or spirit of any code of ethics adopted by any recognized
association or organization pertaining to such business of Tenant, and shall
never use any picture or likeness of the Building in any circulars, notices,
advertisements or correspondence without Landlord's prior written consent.
(c) Solicitation. Tenant shall not disturb, solicit, or canvass any
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occupant of the Building and shall cooperate with Landlord to prevent same.
(d) Care. Tenant shall use and occupy the Premises so that no other
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occupant of any adjoining premises will be unreasonably disturbed and shall
create no nuisance in, upon or about the Premises. Subject to the provisions of
Paragraph 8(b), Tenant shall take good care of the Premises, the fixtures and
appurtenances thereto, and all alterations, additions and improvements thereto.
Tenant will not make or permit to be made any use of the Premises or any part
thereof, and will not bring into or keep anything in the Premises or any part
thereof, that (i) violates any of the covenants, agreements, terms, provisions
and conditions of this Lease; (ii) directly or indirectly is forbidden by public
law, ordinance or regulation of any governmental or public authority (including
zoning ordinances); (iii) is dangerous to life, limb or property; (iv) increases
the risk to Landlord or any other tenant or invalidate or increase the premium
cost of any policy of insurance carried on the Building or covering its
operation; or (v) in the sole judgment of Landlord, in any way impairs or tends
to impair the character, reputation or appearance of the Property as a first-
class office building, or impairs or interferes with any of the services
performed by Landlord for the Property.
(e) Noise; Odors. Tenant shall not use, keep or permit to be used
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or kept any foul or noxious gas or substance in the Premises; permit or suffer
the Premises to be occupied or used in a manner offensive or objectionable to
Landlord or other occupants of the Building by reason of noise, odors and/or
vibrations; interfere in any way with other tenants or those having business
therein; or bring in or keep any animals or birds in the Premises. Tenant shall
not use the Premises for housing accommodations or lodging or sleeping purposes,
or do any cooking therein, or use any illumination other than electric light.
6. Alterations.
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(a) Prohibition. Tenant shall not make any alterations, additions or
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improvements (collectively, the "Alterations") in or to the Premises, or in or
to the Building without the express prior written consent of Landlord; provided,
however, that Landlord shall not be unreasonable in withholding consent to
nonstructural Alterations. Before commencing any work in connection with the
Alterations, Tenant shall furnish to Landlord for its approval the following:
(i) detailed plans and specifications therefor, (ii) names and addresses of each
of the contractors and subcontractors, (iii) copies of all contracts,
subcontracts and necessary permits, (iv) a payment and performance bond, or
other indemnification, in form and amount satisfactory to Landlord, protecting
Landlord against any and all claims, costs, damages, liabilities and expenses
that may arise in connection with the Alterations, (v) sworn contractor's
statements and mechanic lien waivers covering all work to be performed and such
other documentation as is necessary to comply fully with the mechanics' lien law
of the state in which the Premises is located, and (vi) certificates of
insurance, in form and amount satisfactory to Landlord, from all contractors and
subcontractors who will perform labor or furnish materials, insuring Landlord
against any and all liability for personal injury, including workers'
compensation claims and for property damage that may arise out of or be in any
manner connected with the Alterations.
(b) Indemnification. In addition to the indemnity set forth in Paragraph
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12 of this Lease, Tenant hereby specifically agrees to indemnify and hold
harmless Landlord from and against any and all liabilities, costs and expenses
of every kind and description, including reasonable attorneys' fees, that may
arise out of or in any manner be connected with any Alterations made by Tenant,
unless the liabilities, costs or expenses are due to the willful misconduct of
the Landlord, its agents, servants, contractors or employees. Tenant shall pay
the cost of all such Alterations and all costs associated with decorating the
Premises that may be occasioned thereby. Upon completion of any such
Alterations, Tenant shall furnish Landlord with (i) receipted bills covering all
labor and materials used, together with such documentation as is necessary to
comply fully with the mechanics' lien law of the state in which the Premises are
located; (ii) a true and correct copy of the certificate of occupancy, if one is
issued; and (iii) a certificate of Tenant's architect or engineer stating that
such Alterations were made in accordance with the plans and specifications.
Notice is hereby given that Landlord shall not be liable for any labor or
materials furnished or to be furnished to Tenant upon credit, and that no
mechanic's or other lien for such labor or material shall attach to or affect
the reversion or other estate or interest of Landlord in and to the Premises.
(c) Compliance and Supervision of Alterations. All Alterations made by
-----------------------------------------
Tenant hereunder shall be installed in a good and workmanlike manner, using only
materials of the same or higher quality as those installed in the Building. All
Alterations shall comply with all requirements of Landlord's insurance carriers
and with all laws, rules, ordinances and regulations of any lawful authority.
Tenant shall permit Landlord to supervise construction operations in connection
with any such Alterations, if Landlord requests the right to do so (but Landlord
shall have no obligation to make such requests, or having done so, to supervise
construction). Landlord's supervision of construction shall be done solely for
the benefit of Landlord and shall not alter Tenant's liability and
responsibility under this Paragraph 6.
(d) Landlord's Property. All Alterations, whether temporary or permanent,
-------------------
including hardware, non-trade fixtures and wall and floor coverings, whether
placed in or upon the Premises by Landlord or Tenant, shall become Landlord's
property and shall remain with the Premises at the termination of this Lease,
whether by lapse of time or otherwise, without compensation, allowance or credit
to Tenant; provided, however, that notwithstanding the foregoing, Landlord may
request that any or all of said Alterations in or upon the Premises made by
Tenant be removed by Tenant at the termination of this Lease. If Landlord
requests such removal or if Tenant removes its trade fixtures, Tenant shall
remove the same prior to the end of the Term and shall repair all damage to the
Premises, the Building or the Property caused by such removal. Tenant shall
not, however, be required to remove pipes and wires concealed in floors, walls
or ceilings, provided that Tenant properly cuts and caps the same, and seals
them off in a safe, lawful and workmanlike manner, in accordance with Landlord's
reasonable requirements and all applicable building codes. If Tenant does not
remove any Alterations when requested by
8
Landlord to do so, Landlord may remove the same and repair all damage caused
thereby, and Tenant shall pay to Landlord the cost of such removal and repair
immediately upon demand therefor by Landlord, plus fifteen percent (15%) of the
cost of such removal to reimburse Landlord for its administrative expense.
Notwithstanding the foregoing provision, Landlord may not require Tenant to
remove any Alterations for which Tenant shall have requested in writing an
advance determination regarding removal if Landlord shall not have then reserved
the right to do so. If Tenant desires an advance determination regarding removal
of any particular Alteration, Tenant shall request such an advance determination
in writing at the same time that Tenant shall seek consent from Landlord for
such Alteration, or, if Landlord's consent shall not be required, prior to
performing such Alterations. Such request, to be effective, must state that the
failure of Landlord to reserve Landlord's right to require removal shall be
deemed a waiver of such right. Tenant's obligation to observe or perform the
covenants under this Paragraph shall survive the expiration or termination of
this Lease.
(e) Wiring. Landlord will direct electricians as to where and how
------
telephone and computer wires are to be introduced. No boring or cutting for
wires will be allowed without Landlord's written consent, which consent shall
not be unreasonably withheld or delayed. The location of telephones, call boxes
and other office equipment affixed to the Premises shall be subject to
Landlord's approval.
7. Mechanics' Liens.
----------------
(a) Tenant's Discharging of Liens. If, because of any act or
-----------------------------
omission of Tenant, any mechanic's lien or other lien, charge or order for the
payment of money shall be filed against any portion of the Property, Tenant, at
its own cost and expense, shall cause the same to be discharged of record or
bonded against within ten (10) days of the filing thereof unless Tenant shall
contest the validity of such lien by appropriate legal proceedings diligently
conducted in good faith and without expense to Landlord; and Tenant shall
indemnify and save harmless Landlord against and from all costs, liabilities,
suits, penalties, claims and demands, including attorneys' fees, on account
thereof.
(b) Landlord's Discharging of Liens. If Tenant shall fail to cause
-------------------------------
such liens to be discharged of record or bonded against within the aforesaid ten
(10) day period, or if contested by Tenant shall fail to satisfy such liens
within ten (10) days after any judgment in favor of such lien-holders from which
no further appeal might be taken, then, in addition to all other rights or
remedies of Landlord, Landlord shall have the right to cause the same to be
discharged. All amounts paid by Landlord to cause such liens to be discharged,
plus interest on such amounts at the Default Rate shall constitute Other Charges
payable by Tenant to Landlord.
8. Maintenance and Repair.
----------------------
(a) Tenant's Maintenance. Tenant, at its sole cost and expense, shall
--------------------
maintain and repair during the Term of this Lease the Premises and every part
thereof and any and all appurtenances thereto, including but not limited to, the
doors and interior walls of the Premises; special light fixtures; kitchen
fixtures; auxiliary heating, ventilation, or air-conditioning equipment; private
bathroom fixtures and any other type of special equipment, together with related
plumbing or electrical services; and rugs, carpeting, wall coverings, and drapes
within the Premises, whether installed by Tenant or by Landlord on behalf of
Tenant, and whether or not such items will become Landlord's property upon
expiration or termination of this Lease. Notwithstanding the provisions hereof,
in the event that repairs required to be made by Tenant become immediately
necessary to avoid possible injury or damage to persons or property, Landlord
may, but shall not be obligated to, make repairs to such items at Tenant's
expense, which shall constitute Other Charges payable by Tenant to Landlord.
Within ten (10) days after Tenant's receipt of Landlord's ▇▇▇▇ for the cost of
said repairs, Tenant shall reimburse Landlord. Landlord's ▇▇▇▇ shall be deemed
to have been
9
received by Tenant one (1) day after Landlord deposits such ▇▇▇▇ with a hand
delivery or overnight carrier, or two (2) days after deposit in the United
States mail if sent by certified mail.
(b) Landlord's Maintenance. Subject to Paragraph 8(a) above, Landlord
----------------------
shall keep, repair and maintain the Building (including the roof and structural
members, the Common Areas, mechanical and electrical equipment, the exterior and
architectural finish, and all items except those excepted elsewhere in this
Lease) of which the Premises are a part, and the lawn, shrubs and other
landscaping on the Property, all in good and tenantable condition during the
Term of this Lease. Landlord shall, in addition, supply reasonable snow removal
for the walkways of the Property during Normal Business Hours (as hereinafter
defined). Tenant shall notify Landlord immediately when any repair to be made
by Landlord is necessary. If any portion of the Building or the Premises is
damaged through the fault or negligence of Tenant, its agents, employees,
invitees or customers, then Tenant shall promptly and properly repair the same
at no cost to Landlord; provided, however, that Landlord may, at its option,
make such repairs and Tenant shall, on demand, pay the cost thereof, together
with interest at the Default Rate to Landlord as Other Charges. Tenant shall
immediately give Landlord written notice of any defect or need for repairs,
after which notice Landlord shall have reasonable opportunity to repair same or
cure such defect. For the purposes of making any repairs or performing any
maintenance, Landlord may block, close or change any entrances, doors,
corridors, elevators, or other facilities in the Building or in the Premises,
and may close, block or change sidewalks, driveways or parking areas of the
Property. Landlord shall not be liable to Tenant, except as expressly provided
in this Lease, for any damage or inconvenience and Tenant shall not be entitled
to any abatement of rent by reason of any repairs, alterations or additions made
by Landlord under this Lease.
(c) Inspection. Tenant shall permit Landlord, its agents, employees
----------
and contractors, at any time in the event of an emergency, and otherwise at
reasonable times and upon reasonable prior notice by Landlord, to take any and
all measures, including inspections, repairs, alterations, additions and
improvements to the Premises or to the Building, as may be necessary or
desirable to safeguard, protect or preserve the Premises, the Building or
Landlord's interests; to operate or improve the Building; to comply on behalf of
Tenant with all laws, orders and requirements of governmental or other authority
(if Tenant fails to do so); to examine the Premises to verify Tenant's
compliance with all of the terms, covenants, obligations and conditions of this
Lease; or to exercise any rights with respect to the Premises that Landlord may
exercise in the event of default by Tenant.
9. Common Areas.
------------
(a) Grant. During the Term of this Lease, Landlord grants to Tenant,
-----
its employees, customers and invitees, a nonexclusive license to use, in common
with all others to whom Landlord has granted or may hereafter grant a license to
use, the common areas of the Property, including but not limited to, the
sidewalks, lobbies, halls, passages, exits, entrances, elevators, stairways,
restrooms, parking areas (except as provided for in subparagraph (b) below),
driveways and landscaped areas (collectively, the "Common Areas") subject to
reasonable rules and regulations respecting the Common Areas as Landlord may
from time to time promulgate. The Common Areas shall not be obstructed by Tenant
or used for any purpose other than for ingress to and egress from the Premises.
The Common Areas are not for the use of the general public and Landlord shall in
all cases retain the right to control and prevent access thereto by all persons
whose presence, in the judgment of Landlord, shall be prejudicial to the safety,
character, reputation and interests of the Building and its tenants, provided
that nothing herein contained shall be construed to prevent such access to
persons with whom Tenant normally deals in the ordinary course of Tenant's
business unless such persons are engaged in illegal activities. Neither Tenant
nor its employees, customers or invitees shall go upon the roof or mechanical
floors or into mechanical areas of the Building.
(b) Right to Change Common Areas. Landlord may do and perform such
----------------------------
acts in and to the Common Areas as, Landlord, in its good business judgment,
shall determine to be advisable. Landlord hereby reserves the right
10
to make alterations, additions, deletions or changes to the Common Areas,
including, but not limited to, changes in its size and configuration.
10. Building Services.
-----------------
(a) Electric. Landlord shall provide electric power to the Premises.
--------
Electric power furnished by Landlord is intended to be that consumed in normal
office use during Normal Business Hours for lighting, heating, ventilating, air
conditioning and operating all office equipment, and shall replace light bulbs
and tubes when required, if requested by Tenant (the cost of such replacement
light bulbs and tubes, plus the labor cost of such replacement, to be chargeable
to Tenant). Landlord reserves the right, if Tenant's consumption of electricity
exceeds that required for normal office use during Normal Business Hours or for
use after Normal Business Hours, to include a charge for such electricity as
rent. Such charge shall be based upon the average cost per unit of electricity
for the Building applied to the excess use as determined by an independent
engineer selected by Landlord. Landlord shall also have the option, at
Landlord's discretion, to install at Tenant's cost, such installation cost to be
agreed to by Landlord and Tenant, a submeter for the Premises and Tenant shall
pay the expense of such excess electrical usage. If Tenant refuses to pay upon
demand of Landlord such excess charge, or refuses to pay when billed the charges
measured by the submeter, such refusal shall constitute a breach of the
obligation to pay rent under this Lease and shall entitle Landlord to the rights
granted in this Lease for such breach. Tenant shall use strict care and caution
to ensure that all electricity is carefully shut off to prevent waste or damage.
(b) Water. Landlord shall provide water for drinking, lavatory and
-----
toilet purposes from the regular Building supply (at the prevailing temperature)
through fixtures installed by Landlord (or by Tenant with Landlord's prior
written consent); provided that Tenant shall reimburse Landlord, at rates fixed
by Landlord, for water used by Tenant for supplementary air-conditioning or
refrigerating installed by or for Tenant and for any other water used by Tenant
(except for public drinking water and public lavatory use).
(c) Air-Conditioning and Heat. Landlord shall provide air
-------------------------
conditioning and heat to the Premises for comfortable occupancy during Normal
Business Hours, subject at all times, however, to restrictions placed upon
Landlord by any duly constituted governmental agency and/or by any utility
supplier. Tenant shall cooperate fully with Landlord to assure the effective
operation of the Building's air-conditioning and heating systems, including the
closing of venetian blinds and drapes, and if windows are operable, to keep them
closed when the air-conditioning or heating system is in use. Tenant shall not
use any apparatus or device in, upon or about the Premises that in any way may
increase the amount of such services usually furnished or supplied to tenants in
the Building, and Tenant shall not connect any apparatus or device with the
conduits or pipes, or other means by which such services are supplied for the
purpose of using additional or unusual amounts of such services, without the
prior written consent of Landlord, which consent shall not be unreasonably
withheld or delayed. If Tenant uses such services under this provision to
excess, Landlord reserves the right to charge Tenant for such services, as rent.
If Tenant refuses to make payment upon demand of Landlord, such excess charge
shall constitute a breach of the obligation to pay rent under this Lease and
shall entitle Landlord to the rights granted in this Lease for such breach.
Tenant shall have the right to supplemental air conditioning at the Building at
any time at a current cost to Tenant of five cents ($0.05) per ton per hour for
condenser water, plus any additional electrical costs of air conditioning
appliances. As depicted on the Plans, Landlord shall, at its own cost and
expense, install a separately metered air conditioning unit for such purposes.
(d) Janitor Service. Landlord shall provide janitor service in and
---------------
about the Premises and the Building at the end of each Monday, Tuesday,
Wednesday, Thursday and Friday, except for Holidays (as hereinafter defined).
Tenant shall not provide any janitor service without Landlord's prior written
consent, which consent shall not be unreasonably withheld or delayed. If
Landlord consents to janitor service provided by Tenant, the same shall be
11
subject to Landlord's rules and regulations and to Landlord's supervision, but
at Tenant's sole cost and expense (without reduction in Base Rental or
Additional Rental). Landlord shall further provide carpet cleaning in the Common
Areas and window cleaning at such times as Landlord, in its sole opinion,
considers that such cleaning is necessary. Each Tenant shall cooperate with any
janitor service in keeping the Premises neat and clean. Landlord shall be in no
way responsible to Tenant, its agents, employees or invitees, for any loss of
property from the Premises or for any damage to property thereon, from any
cause.
(e) Elevator Service. Landlord shall provide passenger elevator
----------------
during Normal Business Hours.
(f) Interruption of Services. Tenant hereby acknowledges that any
------------------------
one or more of the utilities or building services specified in this Paragraph 10
may be interrupted or diminished temporarily by Landlord or other person until
certain repairs, alterations or other improvements to the Premises or other
parts of the Property can be made or by any event or cause which is beyond
Landlord's reasonable control, including, without limitation, any ration or
curtailment of utility services; that Landlord does not represent, warrant or
guarantee to Tenant the continuous availability of such utilities or building
services; and that any such interruption shall not be deemed or construed to be
an interference with Tenant's right of possession, occupancy and use of the
Premises, shall not render Landlord liable to Tenant for damages or entitle
Tenant to any reduction of Base Rental, and shall not relieve Tenant from its
obligation to pay Base Rental and to perform its other obligations under this
Lease, unless the interruption of utilities or building services is due to the
willful misconduct of the Landlord, its agents, servants, contractors or
employees.
(g) Energy Curtailment. Landlord and Tenant specifically acknowledge that
------------------
energy shortages in the region in which the Property is located may from time to
time necessitate reduced or curtailed energy consumption on the Property.
Tenant shall comply with all such rules and regulations as may be promulgated
from time to time by any governmental authority with respect to energy
consumption, and during such period of time as such governmental authority may
so require, Tenant shall reduce or curtail operations in the Premises as shall
be directed by Landlord or such governmental authority. Compliance with such
rules and regulations and/or such reduction or curtailment of operation shall
not constitute a breach of Landlord's covenant of quiet enjoyment or otherwise
invalidate or affect this Lease, and Tenant shall not be entitled to any
diminution or abatement in Base Rental during the periods of reduction or
curtailment of operations.
(h) Normal Business Hours. For purposes of this Lease, "Normal
---------------------
Business Hours" shall mean 8:00 a.m. to 6:00 p.m., Monday through Friday, and
8:00 a.m. to 1:00 p.m. on Saturday and not including Sundays and Holidays.
(i) Holidays. For purposes of this Lease, Holidays shall mean New
--------
Year's Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving and Christmas.
(j) Directory. Landlord shall maintain a directory of office tenants
---------
in the lobby area of the Building, on which shall be listed the name of Tenant
and its organizational divisions.
11. Estoppel Certificates. Within ten (10) days after Tenant's receipt
---------------------
of a written request by Landlord, Tenant shall execute, acknowledge and deliver
to Landlord or to Landlord's mortgagee, prospective mortgagee, land lessor or
prospective purchaser of the Property or any part thereof, an estoppel
certificate, in form and substance substantially similar to that attached as
Exhibit E and incorporated herein by reference. Tenant shall make such
modifications to such estoppel certificate as may be necessary to make such
certificate true and accurate, it being intended that any such statement
delivered pursuant to this Paragraph 11 may be relied upon by any such
mortgagee, prospective mortgagee, prospective purchaser, or land lessor of the
Property. If Tenant fails to provide such estoppel
12
certificate with ten (10) days after Landlord's request, Tenant shall be deemed
to have approved the contents of any such certificate submitted to Tenant by
Landlord and Landlord is hereby authorized to so certify. Landlord's written
request under this Paragraph shall be deemed to have been received by Tenant one
(1) day after Landlord deposits such request with a hand delivery or overnight
carrier, or two (2) days after deposit in the United States mail if sent by
certified mail.
12. Indemnification; Waiver of Claims.
---------------------------------
(a) Tenant shall protect, indemnify, defend, and hold harmless
Landlord, its agents, servants, employees, officers, directors and partners
forever against and from (i) any penalty, damages, charges or costs imposed or
resulting from any violation of any law, order or ordinance of any governmental
agency, or by the use and occupancy of the Premises by Tenant, whether
occasioned by the neglect of Tenant or those holding under Tenant; (ii) all
claims, losses, costs, damages and expenses, including reasonable attorneys'
fees, arising out of or from any accident or other occurrence on or about the
Premises or the Property causing injury to any person or property, except caused
by the sole active negligence or intentional act or omission of Landlord or its
servants, contractors, agents or employees; (iii) all claims, losses, costs,
damages and expenses, including reasonable attorneys' fees, arising out of any
failure of Tenant in any respect to comply with or perform all the requirements
and provisions of this Lease or arising out of any use of the Premises or the
Property by Tenant or any one claiming by, through or under Tenant.
(b) Landlord shall not be liable for, and Tenant hereby waives all
claims against Landlord, (i) for any and all damage or loss to fixtures,
equipment or other property of Tenant and its servants, agents, employees,
contractors, suppliers, invitees, patrons and guests, in, upon or about the
Premises or the Property, or (ii) for injury or death to any person, occurring
in, upon or about the Premises or the Property, resulting from any cause
whatever (except caused by the sole active negligence or intentional act or
omission of Landlord or its servants, agents or employees), including, but not
limited to, water, snow, frost, ice, explosion, falling plaster, fire or gas,
smoke or other fumes, nor by reason of the leaking, breaking, backing up or
other malfunction of any lines, wires, pipes, tanks, boilers, lifts or any other
appurtenances, regardless by whom installed or maintained (Tenant hereby
expressly assuming all responsibility for the safety and security of the person
and property of Tenant, and its servants, agents, employees, contractors,
suppliers, invitees, patrons and guests, while in, upon or about the Premises).
The occurrence of any event described in this Paragraph 12 shall not constitute
a breach of Landlord's covenant of quiet enjoyment set forth in Paragraph 17.
13. Insurance.
---------
(a) Tenant's Insurance. Tenant, at its sole cost and expense, shall
------------------
carry during the entire Term of this Lease, the following types of insurance:
(i) Commercial general liability insurance against injuries to
persons occurring in, upon or about the Premises, with minimum coverage of Two
Million Dollars ($2,000,000.00) per occurrence and Three Million Dollars
($3,000,000.00) aggregate coverage per one (1) accident or disaster, and One
Million Dollars ($1,000,000.00) for property damage;
(ii) Fire, extended coverage, vandalism and malicious mischief,
and sprinkler damage and all-risk insurance coverage on all personal property,
trade fixtures, floor coverings, wall coverings, furnishings, furniture, and
contents for their full insurable value on a replacement cost basis;
13
(iii) Business interruption insurance, against loss or damage
resulting from the same risks as are covered by the insurance mentioned in
subparagraph (i) above in an amount equal to the aggregate of one (1) year's
requirement of (A) Base Rental, (B) the amounts payable by Tenant for Additional
Rental as provided in subparagraph 3(b), and (C) insurance premiums necessary to
comply with this Paragraph 13; and
(iv) Workers' Compensation or similar insurance, if and to the
extent required by law and in form and amounts required by law.
(b) Landlord as Additional Insured. All such insurance required to
------------------------------
be maintained by Tenant shall name Landlord as an additional insured and shall
be written with a company or companies reasonably satisfactory to Landlord,
having a policyholder rating of at least "A" and be assigned a financial size
category of at least "Class XIV" as rated in the most recent edition of "Best's
Key Rating Guide" for insurance companies, and authorized to engage in the
business of insurance in the state in which the Premises are located. Tenant
shall deliver to Landlord copies of such policies and customary insurance
certificates evidencing such paid-up insurance. Such insurance shall further
provide that the same may not be canceled, terminated or modified unless the
insurer gives Landlord and Landlord's mortgagee(s) at least sixty (60) days'
prior written notice thereof.
(c) Landlord's Insurance. Landlord shall maintain in force, at all
--------------------
times during the Term of this Lease, a policy or policies of fire insurance to
the extent of at least eighty percent (80%) of the insurable value of the
Building.
(d) Increase in Premiums. If insurance premiums payable by Landlord
--------------------
or any other tenant are increased as a result of any breach of Tenant's
obligations under this Lease or as a result of Tenant's use and occupancy of the
Premises, Tenant shall pay to Landlord an amount equal to any increase in such
insurance premiums.
14. Waiver of Subrogation. Neither Landlord nor Tenant shall be liable to
---------------------
the other for any business interruption or any loss or damage to property or in
any manner growing out of or connected with Tenant's use and occupation of the
Premises, the Building or the Property or the condition thereof, or of the
adjoining property, whether or not caused by the negligence or other fault of
Landlord or Tenant or of their respective agents, employees, subtenants,
licensees or assignees; provided, however, that this release shall apply only to
the extent that such business interruption or loss or damage is covered by
insurance, regardless of whether such insurance is payable to or protects
Landlord or Tenant or both. Nothing in this Paragraph 14 shall be construed to
impose any other or greater liability upon either Landlord or Tenant than would
have existed in the absence hereof. Because this Paragraph 14 will preclude the
assignment of any claim mentioned in it by way of subrogation (or otherwise) to
an insurance company (or any other person), each party to this Lease agrees
immediately to give to each insurance company that has issued to it policies of
fire and extended coverage insurance, written notice of the terms of the mutual
waivers contained in this paragraph, and to have the insurance policies properly
endorsed, if necessary, to prevent the invalidation of the insurance coverages
because of the mutual waivers contained in this Paragraph 14.
15. Holding Over. If Tenant retains possession of the Premises or any
------------
part thereof after the termination of this Lease, such tenancy shall (without
limitation on any one of Landlord's rights or remedies therefor) be one at
sufferance from month to month and Tenant shall pay Landlord rent at one hundred
fifty percent (150%) of the monthly rate in effect immediately prior to the
termination of this Lease for the time the Tenant remains in possession. No
acceptance of rent by, or other act or statement whatsoever on the part of
Landlord or its agent or employee, in the absence of a writing signed by
Landlord, shall be construed as an extension of or as a consent for further
occupancy. Tenant shall indemnify Landlord for all damages, consequential as
well as direct, sustained by reason of Tenant's retention of possession. The
provisions of this Paragraph 15 do not exclude pursuit of Landlord's right of
re-entry or any other right hereunder.
16. Assignment and Sublease.
-----------------------
14
(a) Prohibition. Tenant shall not assign, convey, mortgage, pledge,
-----------
encumber or otherwise transfer this Lease or any interest therein, sublet the
Premises or any part thereof, or permit the use or occupancy of the Premises or
any part thereof by anyone other than Tenant, without receiving Landlord's prior
written consent, which consent shall not be unreasonably withheld or delayed. A
transfer by operation of law, merger or consolidation, or a change of any
partnership interest in Tenant or in the ownership of the voting stock of Tenant
or any direct or indirect parent of Tenant shall be deemed an assignment for
purposes of this Paragraph 16. Any purported transfer, encumbrance, pledge,
mortgage, assignment or subletting not in compliance herewith shall be void and
of no force or effect. In the event of any assignment, subletting, transfer or
occupancy by someone other than Tenant, whether or not expressly or impliedly
approved by Landlord, Tenant shall, nevertheless, at all times, remain fully
responsible and jointly and severally liable for the payment of the rent and for
compliance with all other obligations imposed upon Tenant under the terms,
provisions and covenants of this Lease. Any assignment or sublease shall
contain a provision whereby the assignee or subtenant agrees to comply with and
be bound by all of the terms, covenants, conditions, provisions and agreements
of this Lease to the extent applicable, and Tenant shall deliver to Landlord,
promptly after execution, an executed copy of each assignment or sublease and an
agreement of compliance by each assignee or subtenant. Any sublease shall also
contain a provision that in the event of default by Tenant hereunder and a
termination of this Lease by Landlord, such subtenant shall, at Landlord's
option, attorn to Landlord as if Landlord were the lessor under the sublease.
(b) Assignment to Affiliates. Landlord shall not withhold its consent to
------------------------
an assignment or subletting to an affiliate or subsidiary of Tenant, Tenant's
parent company and the parent company's wholly-owned subsidiaries or to any
party resulting from a merger or consolidation with Tenant or any of its
divisions, subsidiaries or affiliates or to any party that purchases
substantially all of Tenant's assets and assumes substantially all of Tenant's
liabilities.
(c) Option to Cancel. Upon receipt of Tenant's written request for
----------------
Landlord's consent to subletting, assignment, transfer or occupancy by someone
other than Tenant, Landlord shall have the option to cancel this Lease as of the
date the requested subletting, assignment, transfer or occupancy by someone
other than Tenant is to be effective. Landlord shall exercise its option to
cancel this Lease by written notice to Tenant within thirty (30) days after
Landlord receives Tenant's request for Landlord's consent.
(d) Right to Collect Rents Directly. Upon the occurrence of an "event of
-------------------------------
default" as set forth in Paragraph 21 hereof, if all or any part of the Premises
is then assigned, sublet, transferred or occupied by someone other than Tenant,
then, in addition to any other remedies provided in this Lease or provided by
law, Landlord, at its option, may collect directly from the assignee, subtenant,
transferee or occupant all rent becoming due to Tenant by reason of the
assignment, sublease, transfer or occupancy. Any collection directly by
Landlord from the assignee or subtenant shall not be construed to constitute a
novation or a release of Tenant from the further performance of its obligations
under this Lease.
(e) Excess Rent. If Tenant assigns this Lease or sublets all or a portion
-----------
of the Premises for an amount in excess of the Base Rental (or the pro rata
share of Base Rental in the case of a sublease of a portion of the Premises),
then Tenant shall pay to Landlord, as rent, twenty-five percent (25%) of such
excess received by Tenant.
(f) Landlord's Costs. If Tenant shall assign this Lease or shall sublet
----------------
all or any part of the Premises or shall request the consent of Landlord to any
assignment, subletting or other act, Tenant shall pay to Landlord as additional
rent Landlord's costs related thereto, including Landlord's reasonable
attorneys' fees, the sum of which shall not exceed Three Thousand Dollars
($3,000.00).
15
17. Quiet Enjoyment. If Tenant shall pay the rents and other sums due to be
---------------
paid by Tenant hereunder as and when the same become due and payable, and if
Tenant shall keep, observe and perform all of the other terms, covenants and
agreements of this Lease on Tenant's part to be kept, observed and performed,
Tenant shall, at all times during the Term herein granted, peacefully and
quietly have and enjoy possession of the Premises without any encumbrance or
hindrance by, from or through Landlord, except for regulations imposed by any
governmental or quasi-governmental agency on the occupancy of Tenant or the
conduct of Tenant's business operations.
18. Compliance with Laws and with Rules and Regulations.
---------------------------------------------------
(a) Laws. Tenant, at its sole cost and expense, shall procure any
----
permits and licenses required for the transaction of Tenant's business in the
Premises. Tenant, at its sole cost and expense, shall promptly observe and
comply with all present and future laws, ordinances, requirements, orders,
directives, rules and regulations of all state, federal, municipal and other
agencies or bodies having jurisdiction relating to the use, condition and
occupancy of the Premises, the Building and the Property ("Governmental
Requirements") at any time in force, applicable to the Premises or to Tenant's
use thereof, except that Tenant shall not be under any obligation to comply with
any law, ordinance, rule or regulation requiring any structural alteration of
the Premises, unless such alteration is required because of a condition that has
been created by, or at the instance of, Tenant, or is required by reason of a
breach of any of Tenant's covenants and agreements under this Lease. Landlord
shall not be required to repair any injury or damage by fire or other cause, or
to make any repairs or replacements of any panels, decoration, office fixtures,
railing, ceiling, floor covering, partitions, or any other property installed in
the Premises by Tenant, unless such injury or damage is due to the willful
misconduct of the Landlord, its agents, servants, contractors or employees.
Tenant, shall also, during the Term and any extension or renewals hereunder,
comply with at its own cost and expense, and shall promptly correct any
violation of all requirements of any insurance underwriters ("Insurance
Requirements"). Tenant shall indemnify, defend and hold Landlord harmless from
and against any and all losses, damages, claims of third parties and cost of
correcting expenses (including reasonable attorneys fees and costs of suit or
administrative proceedings) or fines arising out of Tenant's failure to comply
with Governmental Requirements or Insurance Requirements. The provisions of this
Paragraph 18(a) shall survive the expiration or termination of this Lease.
(b) Rules and Regulations. Tenant shall comply with all rules and
---------------------
regulations for the Building, which current rules and regulations are attached
hereto as Exhibit F and with such reasonable modifications thereof and additions
thereto as Landlord may make hereafter, from time to time. Notwithstanding
anything contained in this Lease, Landlord shall not be responsible nor liable
to Tenant, its agents, representatives, employees, invitees or licensees, for
the nonobservance by any other tenant of any rules and regulations. Any
addition, deletion or modification to the Rules and Regulations shall apply
equitably to all similarly situated tenants in the Building.
19. Fire and Casualty.
-----------------
(a) Termination. If the Premises or the Building or any substantial
-----------
part of either is damaged or destroyed by fire or other casualty, cause or
condition whatsoever, and such damage or destruction cannot be repaired within
one hundred twenty days (120) days, Landlord may terminate this Lease, by
written notice to Tenant given within thirty (30) days after such damage. If the
Premises are damaged or destroyed or access thereto or use thereof is affected
by the damage, then Landlord's termination shall be effective as of the date of
such damage; otherwise said termination shall be effective thirty (30) days
after such notice. If any substantial part of the Premises is damaged or
destroyed by fire or other casualty, cause or condition whatsoever, and Tenant
is unable to reasonably conduct its normal business functions in the Premises,
Tenant shall have the right to terminate this Lease subsequent to one hundred
eighty days (180) days after the occurrence of such damage or destruction by
giving Landlord written notice within thirty (30) days of such 180 day period;
provided, however, that Tenant may not terminate this Lease as provided herein
if by the 180/th/ day following the damage or destruction Landlord has commenced
the
16
rebuilding/restoration of the Premises and such rebuilding/restoration may be
substantially completed, as determined by Landlord, by the two hundred
seventieth (270/th/) day after the occurrence of such damage or destruction.
(b) Restoration. Unless this Lease is terminated as herein above
-----------
provided, Landlord shall proceed with due diligence to restore, repair and
replace the Premises and the Building to the same condition as they were in as
of the Commencement Date. Provided such damage or destruction was not caused or
contributed to by an intentional act or negligence of Tenant, its agents,
employees, invitees or those for whom Tenant is responsible, from and after the
date of such damage to date of completion of said repairs, replacements and
restorations, a just proportion of the rent shall ▇▇▇▇▇ according to the extent
the full use and enjoyment of the Premises are rendered impossible by reason of
such damage. Landlord shall be under no duty to restore any alterations,
improvements or additions made by Tenant. In all cases, due allowance shall be
given to Landlord for any reasonable delays caused by adjustment of insurance
loss, strikes, labor difficulties or any cause beyond Landlord's reasonable
control.
20. Eminent Domain.
--------------
(a) Taking. If all the Premises or a substantial part thereof shall
------
be taken for any public or quasi-public use under any statute or by rights of
eminent domain or by private purchase in lieu thereof, this Lease shall
terminate as of the date of vesting of title. Landlord shall be entitled to
receive the entire award paid for such taking or condemnation, Tenant hereby
assigning to Landlord all Tenant's right, title and interest therein, if any.
Nothing contained herein shall be deemed to give Landlord any interest in or to
require Tenant to assign to Landlord any award made to Tenant for the taking of
personal property or fixtures belonging to Tenant, for the interruption of or
damage to Tenant's business or for Tenant's moving expenses but only if such
award shall be in addition to the award for the Property and the Building (or
portion thereof) containing the Premises.
(b) Termination. If fifty percent (50%) or more of the Building other
-----------
than the Premises shall be condemned, taken or purchased in lieu thereof, then
Landlord may terminate this Lease by notifying Tenant of such termination within
sixty (60) days after the date of vesting of title. This Lease shall expire on
the date specified in such notice of termination, which date shall be not less
than sixty (60) days after the giving of such notice. The rent hereunder shall
be apportioned as of such termination date.
(c) No Reduction in Rent. Any such taking, condemnation or temporary
--------------------
requisition which does not result in a termination of this Lease, as
hereinbefore provided in this Paragraph 20, shall not be cause for any reduction
or diminution of the rental payment hereunder.
21. Default.
-------
(a) Defaults. If (i) Tenant fails to pay when due any rent, or any
--------
other sums required to be paid hereunder by Tenant; or (ii) Tenant defaults in
the performance or observance of any other agreement or condition on its part to
be performed or observed, and Tenant shall fail to cure said default within
twenty (20) days (or such longer period as is reasonably required to correct any
such default, provided Tenant promptly commences and diligently continues to
effectuate a cure) after receipt of written notice thereof by Landlord; or (iii)
Tenant files a voluntary petition in bankruptcy or is adjudicated a bankrupt or
insolvent, or files any petition or answer seeking any arrangement, composition,
liquidation or dissolution under any present or future federal, state or other
statute, law or regulation relating to bankruptcy, insolvency or other relief
for debtors or seeks or consents to or acquiesces in the appointment of any
trustee, receiver or liquidator of Tenant or of all or any substantial part of
its properties, or of the Premises, or makes any general assignment for the
benefit of creditors, or admits in writing its inability to pay its debts
generally as they become due; or (iv) a court enters an order, judgment or
decree approving a petition filed
17
against Tenant seeking any arrangement, composition, liquidation, dissolution or
similar relief under any present or future federal, state or other statute, law
or regulation relating to bankruptcy, insolvency or other relief for debtors,
and such order, judgment or decree shall remain unvacated or unstayed for an
aggregate of sixty (60) days (whether or not consecutive); or (v) Landlord
believes in its reasonable judgment that the prospect of payment or performance
of any of the terms, conditions and covenants of this Lease to be paid or
performed by Tenant are about to be impaired; or (vi) Tenant fails to operate or
closes its business upon the Premises, for reasons other than fire or other
casualty or condemnation, for a period of thirty (30) consecutive days; or (vii)
Tenant abandons or vacates the Premises; then in any such event and at any time
thereafter, Landlord may, without further notice to Tenant, and in addition to
and not in lieu of any other rights or remedies available to Landlord at law or
in equity, exercise any one or more of the following rights: (i) Upon five (5)
days notice to Tenant, declare to be immediately due and payable, on account of
rent and other charges herein reserved for the balance of the Term (taken
without regard to any early termination of the Term on account of default), a
sum equal to the Accelerated Rent Component (as hereinafter defined), and Tenant
shall remain liable to Landlord as hereinafter provided; and/or (ii) Whether or
not Landlord has elected to recover the Accelerated Rent Component, terminate
this Lease on at least five (5) days notice to Tenant and, on the date specified
in 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 Premises to Landlord in the condition elsewhere
herein required and Tenant shall remain liable to Landlord as hereinafter
provided.
(b) Accelerated Rent Component. For purposes hereof, the Accelerated
--------------------------
Rent Component shall mean the aggregate of:
(i) all Base Rental, Additional Rental and Other Charges due
from Tenant to Landlord and in arrears at the time of the election of Landlord
to recover the Accelerated Rent Component;
(ii) the Base Rental 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), 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, discounted to present value at the rate of five
percent (5%) per annum; and
(iii) Landlord's good faith estimate of the Additional Rental and
Other Charges herein agreed to be paid by Tenant up to the end of the Term which
shall not be capable of precise determination as aforesaid (and for such
purposes no estimate of any component of Additional Rental or Other Charges to
accrue pursuant to the provisions of this Lease shall be less than the amount
which would be due if each such component continued at the highest monthly rate
or amount in effect during the twelve (12) months immediately preceding the
default), discounted to present value at the rate of five percent (5%) per
annum.
(c) Re-entry. In any case in which this Lease shall have been
--------
terminated, or in any case in which Landlord shall have elected to recover the
Accelerated Rent Component and any portion of such sum shall remain unpaid,
Landlord may without further notice, enter upon and repossess the Premises, by
summary proceedings, ejectment or otherwise, and may dispossess Tenant and
remove Tenant and all other persons and property from the Premises and may have,
hold and enjoy the Premises and the rents and profits therefrom. Landlord may,
in its own name, as agent for Tenant, if this Lease has not been terminated,
relet the 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 conditions and provisions (which may include
concessions or free rent) as Landlord in its sole discretion may determine.
Landlord may, in connection with any such reletting, cause the Premises to be
redecorated, altered, divided, consolidated with other space or otherwise
changed or prepared for reletting. No reletting shall be deemed a surrender and
acceptance of the Premises.
18
(d) Continuing Liability. Tenant shall, with respect to all periods
--------------------
of time up to and including the expiration of the Term (or what would have been
the expiration date in the absence of default or breach) remain liable to
Landlord as follows:
(i) In the event of termination of this Lease on account of
Tenant's default or breach, Tenant shall remain liable to Landlord for damages
equal to the rent payable under this Lease by Tenant as if this Lease were still
in effect, less the net proceeds of any reletting after deducting all costs
incident thereto (including without limitation all repossession costs, brokerage
and management commissions, reasonable operating and legal expenses and fees,
alteration costs and expenses of preparation for reletting) and to the extent
such damages shall not have been recovered by Landlord by virtue of payment by
Tenant of the Accelerated Rent Component (but without prejudice to the right of
Landlord to demand and receive the Accelerated Rent Component), such damages
shall be payable to Landlord, at Landlord's option, monthly upon presentation to
Tenant of a ▇▇▇▇ for the amount due, or at such other intervals or times as
Landlord shall determine.
(ii) In the event and so long as this Lease shall not have been
terminated after default or breach by Tenant, the rent payable under this Lease
shall be reduced by the net proceeds of any reletting by Landlord (after
deducting all costs incident thereto as above set forth) and by any portion of
the Accelerated Rent Component paid by Tenant to Landlord (but without prejudice
to the right of Landlord to demand and receive the Accelerated Rent Component),
and any amount due to Landlord shall be payable monthly, at Landlord's option,
upon presentation to Tenant of a ▇▇▇▇ for the amount due, or at such other
intervals or times as Landlord shall determine.
(e) No Duty to Relet. Landlord shall in no event be responsible or
----------------
liable for any failure to relet the Premises or any part thereof, or for any
failure to collect any rent due upon a reletting.
(f) Additional Rights. As a cumulative and alternative remedy of
-----------------
Landlord in the event of termination of this Lease by Landlord following any
breach or default by Tenant, Landlord, at its option, shall be entitled to
recover damages for such breach in an amount equal to the Accelerated Rent
Component (determined from and after the date of Landlord's election under this
Section 21(f)) less the fair rental value of the Premises (determined with an
equivalent discount to present value) for the remainder of the Term (taken
without regard to the early termination), and such damages shall be payable by
Tenant upon demand.
(g) Bankruptcy. Nothing contained in this Lease shall limit or
----------
prejudice the right of Landlord to prove for and obtain as damages incident to a
termination of this Lease, in any bankruptcy, reorganization or other court
proceedings, the maximum amount allowed by any statute or rule of law in effect
when such damages are to be proved.
(h) Overdue Payments. If rent due from Tenant to Landlord shall be
----------------
overdue for more than fifteen (15) days after notice from Landlord, it shall
thereafter bear interest at the Default Rate, including without limitation from
and after judgment, execution sale, filing of a bankruptcy petition and the
like.
(i) Waiver of Defects. No waiver by Landlord of any breach by Tenant
-----------------
or any of Tenant's obligations, agreements or covenants herein shall be a waiver
of any subsequent breach or of any obligation, agreement or covenant, nor shall
any forbearance by Landlord to seek a remedy for any breach by Tenant be a
waiver by Landlord of any rights and remedies with respect to such or any
subsequent breach.
(j) Right or Remedy. No right or remedy herein conferred upon or
---------------
reserved to Landlord is intended to be exclusive of any other right or remedy
provided herein or by law, including without limitation consequential
19
damages, but each shall be cumulative and in addition to every other right or
remedy given herein or now or hereafter existing at law or in equity or by
statute.
(k) Confession of Judgment. LANDLORD SHALL HAVE THE FOLLOWING RIGHTS
----------------------
TO CONFESS JUDGMENT AGAINST TENANT AND ALL PERSONS CLAIMING THROUGH TENANT, FOR
POSSESSION OF THE PREMISES AND/OR FOR MONIES OWED TO LANDLORD:
(i) If rent or any charges hereby reserved as rent, or damages
by reason thereof, or any other sum due and payable in connection with this
Lease, including without limitation any late fees or interest accrued or
accruing thereon, and any reimbursement for attorney fees owed by Tenant
(collectively, the "Amounts Due"), shall remain unpaid on any day when the same
is due beyond any applicable grace period (if any), whether prior to or after
the termination or expiration of this Lease, Tenant hereby empowers any
Prothonotary, Clerk of Court or attorney of any court of record to appear for
Tenant in any and all actions which may be brought for the Amounts Due, or any
portions thereof, or for amounts agreed to be paid by Tenant, and to confess
judgment against Tenant in any competent court for the recovery of rent or other
charges, payments, costs and expenses. In such suits or actions, Tenant empowers
such Prothonotary, Clerk of Court or attorney to confess judgment against Tenant
for all or any part of the rent specified in this Lease and then unpaid or any
other Amount Due, including without limitation, at Landlord's option, the
Accelerated Rent Component or the rent for the entire unexpired balance of the
Term, and for interest and costs, together with an attorney's commission equal
to the greater of $2,000.00 or 5% of the amount so confessed. Such authority
shall not be exhausted by one exercise thereof, but judgment may be confessed as
aforesaid from time to time as often as any rent or any other Amount Due shall
fall due or be in arrears, including without limitation for the same Amounts Due
as previously confessed if and to the extent that a previous confession of
judgment shall be stricken or otherwise invalidated without a final decision on
the merits of the claim. Such powers may be exercised as well after the
expiration of the Term, during any extension or renewal, and/or after the
termination of this Lease.
(ii) When this Lease shall be terminated by reason of a default
by Tenant or any other reason whatsoever, either during the Term or any renewal
or extension thereof, and also when the Term or any extension thereof shall have
expired, it shall be lawful for any attorney as attorney for Tenant to confess
judgment in ejectment in any competent court against Tenant and all persons
claiming under Tenant for the recovery by Landlord of possession of the
Premises, for which this Lease shall be Landlord's sufficient warrant. Upon such
confession of judgment for possession, if Landlord so desires, a writ of
execution or of possession may issue forthwith, without any prior writ or
proceedings whatsoever. If for any reason after such action shall have been
commenced, the same shall be determined and the possession of the Premises shall
remain in or be restored to Tenant, then Landlord shall have the right upon any
subsequent or continuing default or defaults, or after expiration of the Lease,
or upon the termination of this Lease as hereinbefore set forth, to confess
judgment in ejectment against Tenant as hereinbefore set forth to recover
possession of the Premises.
(iii) In any action of ejectment and/or for rent in arrears or
other Amount Due, Landlord shall cause to be filed in such action an affidavit
made by Landlord or someone acting for Landlord setting forth the facts
necessary to authorize the entry of judgment, of which facts such affidavit
shall be conclusive evidence. If a true copy of this Lease shall be filed in
such action (and of the truth of the copy such affidavit shall be sufficient
evidence), it shall not be necessary to file the original Lease as a warrant of
attorney, any rule of court, custom or practice to the contrary notwithstanding.
(iv) Tenant expressly agrees, to the extent not prohibited by
law, that any judgment, order or decree entered against it by or in any court or
magistrate by virtue of the powers of attorney contained in this Lease shall be
final, and that Tenant will not take an appeal, certiorari, writ of error,
exception or objection to the same, or file
20
a motion or rule to strike off or open or to stay execution of the same, and
releases to Landlord and to any and all attorneys who may appear for Tenant all
errors in the said proceedings and all liability therefor.
(v) The right to enter judgment against Tenant and to enforce
all of the other provisions of this Lease herein provided for, at the option of
any assignee of this Lease, may be exercised by any assignee of Landlord's
right, title and interest in this Lease in Tenant's own name, notwithstanding
the fact that any or all assignments of said right, title and interest may not
be executed and/or witnessed in accordance with the Act of Assembly of May 28,
1715, 1 Sm. L. 94, and all supplements and amendments thereto that have been or
may hereafter be passed. Tenant hereby expressly waives the requirements of said
Act of Assembly and any and all laws regulating the manner and/or form in which
such assignments shall be executed and witnessed.
22. Waiver of Default or Remedy. No waiver of any covenant or condition or
---------------------------
of the breach of any covenant or condition of this Lease shall be taken to
constitute a waiver of any subsequent breach of such covenant or condition nor
to justify or authorize the nonobservance on any other occasion of the same or
of any other covenant or condition hereof, nor shall the acceptance of rent by
Landlord at any time when Tenant is in default under any covenant or condition
hereof be construed as a waiver of such default or of Landlord's right to
terminate this Lease on account of such default, nor shall any waiver or
indulgence granted by Landlord to Tenant be taken as an estoppel against
Landlord, it being expressly understood that if at any time Tenant shall be in
default in any of its covenants or conditions hereunder an acceptance by
Landlord of rental during the continuance of such default or the failure on the
part of Landlord promptly to avail itself of such rights or remedies as Landlord
may have, shall not be construed as a waiver of such default, but Landlord may
at any time thereafter, if such default continues, terminate this Lease or
assert any other rights or remedies available to it on account of such default
in the manner hereinbefore provided.
23. Landlord's Lien. As security for Tenant's payment of rent, damages and
---------------
all other payments required to be made by Tenant pursuant to this Lease, Tenant
hereby grants to Landlord a lien upon all property of Tenant now or subsequently
located upon the Premises. If Tenant abandons or vacates any substantial
portion of the Premises or is in default in the payment of any rental, damage or
other payments required to be made pursuant to this Lease, Landlord may enter
upon the Premises, by force if necessary, and take possession of all or any part
of the personal property, and may sell all or part of the personal property at a
public or private sale, in one or successive sales, with or without notice, to
the highest bidder for cash, and, on behalf of Tenant, sell and convey all or
part of the personal property delivering to the highest bidder all of Tenant's
title and interest in the personal property sold. The proceeds of the sale of
the personal property shall be applied by Landlord toward the cost of the sale
and then toward the payment of all sums then due by Tenant to Landlord pursuant
to the terms of this Lease. This lien shall not apply to any equipment or
furnishings leased to Tenant by a third party.
24. Uniform Commercial Code. To the extent, if any, this Lease grants
-----------------------
Landlord any lien or lien rights greater than provided by the laws pertaining to
"Landlord's Liens", this Lease is intended as and constitutes a security
agreement within the meaning of the Uniform Commercial Code of the state in
which the Premises are located. In addition to the rights prescribed in this
Lease, Landlord shall have all of the rights, titles, liens and interests in and
to Tenant's property now or hereafter located upon the Premises that are granted
a secured party, as that term is defined under the Uniform Commercial Code of
the state in which the Premises are located, to secure payment to Landlord of
the various amounts required to be paid by Landlord pursuant to the terms of
this Lease. Tenant will on request execute and deliver to Landlord a financing
statement for the purpose of perfecting Landlord's security interest under this
Lease or Landlord may file this Lease or a memorandum of lease as a financing
statement.
25. Force Majeure. If Landlord or Tenant shall be delayed, hindered in or
-------------
prevented from the performance of any act required hereunder (other than the
payment of rent and other charges payable by Tenant) by reason of strikes,
lockouts, labor troubles, inability to procure materials, failure of power,
riots, insurrection, the act, failure to act or default of the other party, war
or any other reason beyond the reasonable control of the party who is
21
seeking additional time for the performance of such act, then performance of
such act shall be excused for the period of the delay and the period for the
performance of any such act shall be extended for a reasonable period, in no
event to exceed a period equivalent to the period of such delay. No such
interruption of any service to be provided by Landlord shall ever be deemed to
be an eviction, actual or constructive, or disturbance of Tenant's use and
possession of the Premises, the Building or the Property.
26. Subordination of Lease.
----------------------
(a) General. Landlord reserves the right and privilege to subject and
-------
subordinate this Lease to any and all mortgages, deeds of trust or land leases
now existing upon or that may be hereafter placed upon the Premises and the
Property and to all advances made or to be made thereon and all renewals,
modifications, consolidations, replacements or extensions thereof and if such
right is exercised, the lien of any such mortgages, deeds of trust or land
leases shall be superior to all rights hereby or hereunder vested in Tenant, to
the full extent of all sums secured thereby. In confirmation of such
subordination, Tenant shall, on request of Landlord or the holder of any such
mortgages, deed(s) of trust and land leases, execute and deliver to Landlord
within ten (10) days any instrument that Landlord or such holder may reasonably
request.
(b) Rights of Purchaser. If the interest of Landlord under this Lease
-------------------
shall be transferred by reason of foreclosure, deed in lieu of foreclosure, or
other proceedings for enforcement of any first mortgage or deed of trust on the
Premises, Tenant shall be bound to the transferee (the "Purchaser") under the
terms, covenants and conditions of this Lease for the balance of the Term
remaining, and any extensions or renewals, with the same force and effect as if
the Purchaser were the landlord under this Lease, and at the option of
Purchaser, Tenant shall attorn to the Purchaser (including the mortgagee under
any such mortgage, if it be the Purchaser), as its landlord, the attornment to
be effective and self-operative without the execution of any further instruments
upon the Purchaser succeeding to the interest of Landlord under this Lease. The
respective rights and obligations of Tenant and the Purchaser upon the
attornment, to the extent of the then remaining balance of the Term of this
Lease, and any extensions and renewals, shall be and are the same as those set
forth in this Lease, provided, however, the Purchaser shall (i) not be liable
for any act or omission of Landlord or its predecessors, if any, prior to the
date of such Purchaser's succession to Landlord's interest under this Lease;
(ii) not be subject to any offsets or defenses which Tenant might have been able
to assert against Landlord or its predecessors, if any, prior to the date of
such Purchaser's succession to Landlord's interest under this Lease; and (iii)
not be liable for the return of any security deposit under the Lease unless the
same shall have actually been deposited with such Purchaser.
(c) Rights of Mortgagee. In the event of any act or omission of
-------------------
Landlord which would give Tenant the right, immediately or after lapse of a
period of time, to cancel or terminate this Lease, or to claim a partial or
total eviction, Tenant shall not exercise such right (i) until it has given
written notice of such act or omission to the holder of each such mortgage and
ground lease whose name and address shall previously have been furnished to
Tenant in writing, and (ii) until a reasonable period for such holder to remedy
such act or omission shall have elapsed following the giving of such notice
(which reasonable period shall in no event be less than the period to which
Landlord would be entitled, under this Lease or otherwise, after similar notice,
to effect such remedy).
27. Notices and Consents. All notices, demands, requests, consents and
--------------------
approvals that may or are required to be given by either party to the other
shall be in writing and shall be deemed given when sent by United States
certified or registered mail, postage prepaid, or by overnight courier (a) if
for Tenant, addressed to Tenant at the Building, or at such other place as
Tenant may from time to time designate by notice to Landlord, or (b) if for
Landlord, addressed to Eleven Colonial Penn Plaza Associates, c/o STRS of Ohio,
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Director Real Estate
Assets, with a copy to CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc., Eleven Penn Center, Suite 2705,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as
Landlord may from time to time designate by notice to Tenant. All consents and
approvals provided for herein must be in writing to be valid.
22
Notice shall be deemed to have been given if addressed and mailed as above
provided on the date two (2) days after deposit in the United States mail or one
(1) day after deposit with an overnight courier.
28. Security Deposit.
----------------
(a) Letter of Credit. Upon execution of this Lease, Tenant shall
----------------
deposit with Landlord the sum of Five Hundred Thousand Dollars ($500,000.00) in
the form of an irrevocable, unconditional letter of credit, in the above stated
amount, in form and substance substantially as attached hereto as Exhibit G and
issued by a banking institution acceptable by Landlord, in its sole discretion,
as security for the full and faithful performance of every provision of this
Lease to be performed by Tenant. Commencing on the first anniversary of the
Commencement Date, and on each anniversary thereafter, Tenant shall be entitled
to reduce the amount of the Letter of Credit by Fifty Thousand Dollars
($50,000.00) per annum, or if Landlord is holding the security, Landlord shall
reimburse to Tenant Fifty Thousand Dollars ($50,000.00) per annum, provided
Tenant is not then in default of this Lease beyond any applicable grace period.
Each letter of credit shall have an expiration date which is not longer than one
year from its delivery date and shall be issued by a banking institution
acceptable by Landlord in its sole discretion. From time to time, Tenant shall
deliver a replacement letter of credit no later than thirty (30) days prior to
the expiration of the then outstanding letter of credit. Alternatively, each
letter of credit shall have an expiration date which is not longer than one (1)
year from its delivery date, but may be renewed automatically, provided the
Landlord does not within ninety (90) days of the expiration date object to the
banking institution issuing the extended letter of credit, which objection may
be made in Landlord's sole discretion. In the event Landlord so objects to such
banking institution, Tenant shall deliver a replacement letter of credit issued
by a banking institution acceptable to Landlord, in its sole discretion, no
later than thirty (30) days prior to the expiration of the then outstanding
letter of credit. If Tenant shall fail to do so, then Landlord shall be entitled
to draw immediately under the letter of credit, without being required to give
notice or provide a grace period to Tenant, and to hold the funds so drawn as a
cash security deposit in accordance with the provisions of this Lease.
(b) Security. If Tenant defaults beyond any applicable grace period
--------
with respect to any provision of this Lease, including, but not limited to, the
provisions relating to the payment of rent, Landlord may use, apply or retain
all or any part of the security deposit for the payment of any rent or any other
sum in default or for the payment of any other amount that Landlord may spend or
become obligated to spend by reason of Tenant's default, or to compensate
Landlord for any other loss, cost or damage that Landlord may suffer by reason
of Tenant's default. If any portion of said deposit is so used or applied,
Tenant shall, within five (5) days after written demand therefor, deposit cash
with Landlord in an amount sufficient to restore the security deposit to its
original amount and Tenant's failure to do so shall be a default under this
Lease. Notwithstanding anything to the contrary contained in any law or statute
now existing or hereinafter passed, Landlord shall have the right to commingle
any security deposit required hereunder with Landlord's general funds, and
Tenant shall not be entitled to any interest on said security deposit, and
Landlord shall not be obligated to hold said security in trust or in a separate
account. If Tenant shall fully and faithfully perform every provision of this
Lease to be performed by it, the security deposit or any balance thereof shall
be returned to Tenant (or, at Landlord's option, to the last transferee of
Tenant's interest hereunder) at the expiration of the Term and upon Tenant's
vacation of the Premises. In the event of bankruptcy or other debtor-creditor
proceedings against Tenant, such security deposit shall be deemed to be applied
first to the payment of rent and other charges due Landlord for all periods
prior to filing of such proceedings.
(c) Successor. Landlord may deliver the security deposit to the
---------
purchaser of Landlord's interest in the Premises in the event that such interest
be sold and thereupon Landlord shall be discharged from any further liability
with respect to such deposit, and this provision shall also apply to any
subsequent transferees of Landlord.
23
29. Miscellaneous Taxes; Use and Occupancy Tax.
------------------------------------------
(a) Other Taxes. Tenant shall pay, prior to delinquency, all taxes
-----------
assessed against or levied upon its occupancy of the Premises, or upon the
fixtures, furnishings, equipment and all other personal property of Tenant
located in the Premises, if nonpayment thereof shall give rise to a lien on the
Premises, and when possible Tenant shall cause said fixtures, furnishings,
equipment and other personal property to be assessed and billed separately from
the property of Landlord. In the event any or all of Tenant's fixtures,
furnishing, equipment and other personal property, or upon Tenant's occupancy of
the Premises, shall be assessed and taxed with the property of Landlord, Tenant
shall pay to Landlord its share of such taxes within ten (10) days after
delivery to Tenant by Landlord of a statement in writing setting forth the
amount of such taxes applicable to Tenant's fixtures, furnishings, equipment or
personal property.
(b) Use and Occupancy Tax. Without limiting the foregoing, Tenant
---------------------
will pay promptly when due and in any event not later than fifteen (15) days
after receipt of a ▇▇▇▇ (whether said ▇▇▇▇ be submitted by Landlord, the City of
Philadelphia or otherwise), all City of Philadelphia School District Use and
Occupancy Tax imposed upon the use and occupancy of the Premises.
30. Substitute Premises. Landlord shall have the right, at its option upon
-------------------
not less than sixty (60) days prior written notice to Tenant, to relocate Tenant
and to substitute for the Premises described above other space in the Building
containing at least as much rentable area as the Premises. If Tenant is already
in occupancy of the Premises, then Landlord shall also reimburse Tenant for
Tenant's reasonable moving and telephone relocation expenses, including
reasonable expenses for computer cabling, alarm systems and the stock market
feed system, and up to Two Thousand Dollars ($2,000.00) for new stationery and
marketing materials containing Tenant=s address upon submission to Landlord of
receipts for such expenditures incurred by Tenant.
31. Brokerage Commission. Landlord and Tenant represent and warrant that
--------------------
they have not dealt with any broker or agent in the negotiation for or the
obtaining of this Lease, other than CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc. and Alliance Group
International, Inc./Corridor Commercial Real Estate Group, Inc./CRESA XBaltimore
("Agents") and agree to indemnify and hold each other harmless from any and all
cost or liability for compensation claimed by any such broker or agent, other
than Agents, employed by Landlord or Tenant or claiming to have been engaged by
Landlord or Tenant in connection with this Lease. The parties acknowledge that
Agents have acted only as agent with respect to the procurement and negotiation
of this Lease, and agree that Agents shall not be responsible or liable for any
term, provision or condition of this Lease. Agents are entitled to a leasing
commission in connection with the making of this Lease, which shall be paid by
Landlord pursuant to a separate agreement. The provisions of this Paragraph 31
shall survive the termination of this Lease.
32. Hazardous Devices and Contaminants.
----------------------------------
(a) Prohibition. Except with the prior written consent of Landlord,
-----------
which consent shall not be unreasonably withheld or delayed, Tenant shall not
install or operate any steam or internal combustion engine, boiler, machinery,
refrigerating or heating device or air-conditioning apparatus in or about the
Premises, or carry on any mechanical business therein. Except for Contaminants
(as hereinafter defined) used in the ordinary course of business and in
compliance with Requirements of Law (as hereinafter defined), Tenant and its
agents, employees, contractors and invitees shall not use, store, release,
generate or depose of or permit to be used, stored, released, generated or
disposed of any Contaminants on or in the Premises.
24
(b) Indemnification. Tenant shall indemnify and hold harmless
---------------
Landlord, its agents, servants, employees, officers and directors forever from
and against any and all liability, claims, demands and causes of action,
including, but not limited to, any and all liability, claims, demands and causes
of action by any governmental authority, property owner or any other third
person and any and all expenses, including reasonable attorneys' fees
(including, but not limited to, attorneys' fees to enforce Tenant's obligation
of indemnification under this Paragraph 32(b)), relating to any environmental
liability resulting from (i) any Release (as hereinafter defined) of any
Contaminant at the Premises or emanating from the Premises to adjacent
properties or the surrounding environment during the Term of this Lease; (ii)
during the Term of this Lease, any generation, transport, storage, disposal,
treatment or other handling of any Contaminant at the Premises, including, but
not limited to, any and all off-site transport, storage, disposal, treatment or
other handling of any Contaminant generated, produced, used and/or originating
in whole or in part from the Premises; and (iii) any activities at the Premises
during the Term of this Lease that in any way might be alleged to fail to comply
with any Requirements of Law, unless the Contaminant at the Premises is caused
by the willful misconduct of the Landlord, its agents, servants, contractors or
employees.
(c) Definitions.
-----------
(i) "Contaminant" shall mean any substance or waste containing
hazardous substances, pollutants, and contaminants as those terms are defined in
the federal Comprehensive Environmental Response Compensation and Liability Act,
42 U.S.C. Section 9601 et seq. and any substance similarly defined or identified
in any other federal, provincial or state laws, rules or regulations governing
the manufacture, import, use, handling, storage, processing, release or disposal
of substances or wastes deemed hazardous, toxic, dangerous or injurious to
public health or to the environment. This definition includes friable asbestos
and petroleum or petroleum-based products.
(ii) "Requirements of Law" shall mean any federal, state or
local law, rule, regulation, permit, agreement, order or other binding
determination of any governmental authority relating to the environment, health
or safety.
(iii) "Release" shall have the same meaning as in the federal
Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C.
Section 9601, et seq.
(d) Landlord's Representation. To Landlord's actual knowledge, no
-------------------------
Contaminants have been handled, placed or disposed of in or about the Premises
by the Landlord except in compliance with all requirements of law, and Landlord
has not received any notice of violation, notices of claims or request for
information concerning the handling, placing or disposing of Contaminants at the
Premises. For purposes of this Section, the term "Landlord's actual knowledge"
shall mean the actual knowledge of Landlord=s building manager.
33. Exculpation. This Lease is executed by certain employees of The State
-----------
Teachers Retirement System of Ohio, not individually, but solely on behalf of
Landlord, the authorized nominee and agent for The State Teachers Retirement
Board of Ohio ("▇▇▇▇▇"). In consideration for entering into this Lease, Tenant
hereby waives any rights to bring a cause of action against the individuals
executing this Lease on behalf of Landlord (except for any cause of action based
upon lack of authority or fraud), and all persons dealing with Landlord must
look solely to Landlord's assets for the enforcement of any claim against
Landlord, and the obligations hereunder are not binding upon, nor shall resort
be had to the private property of any of, the trustees, officers, directors,
employees or agents of ▇▇▇▇▇..
34. Signs. Tenant shall not display, inscribe, print, paint, maintain or
-----
affix on any place in or about the Building any sign, notice, legend, direction,
figure or advertisement, except on the doors of the Premises, and then only such
name(s) and matter, and in such color, size, place and materials, as shall first
have been approved by Landlord in
25
writing. Landlord reserves the right to install and maintain a sign or signs on
the exterior or interior of the Building. If Tenant desires, Landlord shall list
Tenant on the Building directory board, at Tenant's sole cost and expense.
35. Locks. No additional locks or similar devices shall be attached to any
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door or window without Landlord's prior written consent, which consent shall not
be unreasonably withheld or delayed. Except for those keys provided by
Landlord, no keys for any door shall be made. If more than two keys for one
lock are desired, Landlord will provide the same upon payment by Tenant. All
keys must be returned to Landlord at the expiration or Termination of this
Lease. Tenant shall see that the doors and windows, if operable, of the
Premises are closed and securely locked before leaving the Building.
36. Employment. Tenant shall not contract for any work or service that might
----------
involve the employment of labor incompatible with the Building employees or
employees of contractors doing work or performing services by or on behalf of
Landlord.
37. Plumbing. Tenant must observe strict care and caution that all water
--------
faucets and water apparatus are shut off before Tenant or its employees leave
the Building to prevent waste or damage. Plumbing fixtures and appliances shall
be used only for purposes for which constructed, and no sweepings, rubbish, rags
or other unsuitable material shall be thrown or placed therein. Damage
resulting to any such fixtures or appliances from misuse by Tenant shall be paid
by Tenant and Landlord shall not in any case be responsible therefor.
38. Certain Rights Reserved to Landlord. Landlord reserves the following
-----------------------------------
rights:
(a) To name the Building and to change the name or street address of
the Building;
(b) To designate all sources furnishing sign painting and lettering,
ice, drinking water, towels, toilet supplies, shoe shining, vending machines,
mobile vending service, catering, and like services used on the Premises or in
the Building;
(c) On reasonable prior notice to Tenant, to exhibit the Premises to
prospective tenants during the last twelve (12) months of the Term, and to
exhibit the Premises to any prospective purchaser, mortgagee, or assignee of any
mortgage on the Property and to others having a legitimate interest at any time
during the Term; and
(d) To install vending machines of all kinds in the Property,
including, without limitation, the Premises, and to provide mobile vending
service therefor, and to receive all of the revenue derived therefrom; provided,
however, that no vending machines shall be installed by Landlord in the Premises
nor shall any mobile vending service be provided therefor, unless Tenant so
requests.
39. Miscellaneous.
-------------
(a) No receipt of money by Landlord from Tenant after the termination
of this Lease or after the service of any notice or after the commencement of
any suit, or after final judgment for possession of the Premises shall
reinstate, continue or extend the Term of this Lease or affect any such notice,
demand or suit or imply consent for any action for which Landlord's consent is
required.
(b) The term "Landlord" as used in this Lease, so far as covenants or
agreements on the part of Landlord are concerned, shall be limited to mean and
include only the owner (or ground lessor, as the case may be) for the time being
of the Premises. If the Premises or the underlying lease, if any, be sold or
transferred, the seller thereof shall be automatically and entirely released of
all covenants and obligations under this Lease from and after the date of
conveyance or transfer, provided the purchaser on such sale has assumed and
agreed to carry out all covenants and
26
obligations contained in this Lease to be performed on the part of Landlord
hereunder and which arise thereafter, it being hereby agreed that the covenants
and obligations contained in this Lease to be performed on the part of Landlord
shall be binding against Landlord, its successors and assigns, only during their
respective successive period of ownership. The liability of Landlord and its
successors in interest, under or with respect to this Lease, shall be strictly
limited to and enforceable only out of its or their interest in the Building and
Land, and shall not be enforceable out of any other assets. No mortgagee or
ground lessor which shall succeed to the interest of Landlord hereunder (either
in terms of ownership or possessory rights) shall: (i) be liable for any
previous act or omission of a prior landlord, (ii) be subject to any rental
offsets or defenses against a prior Landlord, (iii) be bound by any amendment of
this Lease made without its written consent, or by payment by Tenant of rent in
advance in excess of one (1) month's rent, (iv) be liable for any security not
actually received by it, or (v) be liable for any initial construction of the
improvements to be made to the Premises or for any allowance or credit to Tenant
for rent, construction costs or other expenses. Subject to the foregoing, the
provisions hereof shall be binding upon and inure to the benefit of the
successors and assigns of Landlord.
(c) It is understood that Landlord may occupy portions of the
Building in the conduct of Landlord's business. In such event, all references
herein to other tenants of the Building shall be deemed to include Landlord as
occupant.
(d) All of the covenants of Tenant hereunder shall be deemed and
construed to be "conditions" as well as "covenants" as though the words
specifically expressing or implying covenants and conditions were used in each
separate instance.
(e) In the event of variation or discrepancy among counterparts,
Landlord's original copy of this Lease shall control.
(f) This Lease shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns, provided that
this provision shall in no manner enlarge Tenant's rights of assignment, which
right of assignment has been restricted under the foregoing provisions of this
Lease.
40. Relationship of Parties. Any intention to create a joint venture,
-----------------------
partnership or principal and agent relationship between the parties hereto is
hereby expressly disclaimed. This Lease shall create the relationship of
landlord and tenant between Landlord and Tenant.
41. Gender and Number. Whenever words are used herein in any gender, they
-----------------
shall be construed as though they were used in the gender appropriate to the
context and the circumstances, and whenever words are used herein in the
singular or plural form, they shall be construed as though they were used in the
form appropriate to the context and the circumstances.
42. Topic Headings. Headings and captions in this Lease are inserted for
--------------
convenience and reference only and in no way define, limit or describe the scope
or intent of this Lease nor constitute any part of this Lease and are not to be
considered in the construction of this Lease.
43. Counterparts. Several copies of this Lease may be executed by all of the
------------
parties. All executed copies constitute one and the same Lease, binding upon
all parties.
44. Entire Agreement. This Lease contains the entire understanding between
----------------
the parties and supersedes any prior understanding or agreements between them
respecting the subject matter. No representations, arrangement, or
understandings except those fully expressed herein, are or shall be binding upon
the parties. No changes,
27
alterations, modifications, additions or qualifications to the terms of this
Lease shall be made or be binding unless made in writing and signed by each of
the parties.
45. Recording. The parties agree that this Lease shall not be recorded.
---------
46. Governing Law; Invalidity of any Provisions. This Lease shall be
-------------------------------------------
subject to and governed by the laws of the Commonwealth of Pennsylvania. If any
term or provision of this Lease or the application thereof to any person or
circumstance shall to any extent be invalid or unenforceable, the other terms of
this Lease, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Lease shall
be valid and be enforced to the fullest extent permitted by law.
47. Parking. As of the date of the execution of this Lease, the current
-------
monthly rate for parking in the garage attached to the Building is Two Hundred
Fifty Dollars ($250.00) per month per space for valet parking service and Two
Hundred Seventy-Five Dollars ($275.00) per month per space for reserved parking.
Landlord shall provide Tenant with up to three (3) valet parking spaces in said
garage, provided Tenant notifies Landlord in writing of the number of parking
spaces (not to exceed three 3) that Tenant decides to lease, which notice shall
be given within thirty (30) days of the Commencement Date. In the event Tenant
fails to provide such notice or fails to lease all three (3) spaces, Tenant
waives its right to lease such spaces as provided hereunder, unless or until
such unused parking spaces, if any, shall again be available.
48. Twelfth Floor Temporary Space. Provided Landlord and Tenant fully
-----------------------------
execute this Lease on or before December 5, 1999, Tenant shall be permitted to
occupy approximately 3523 rentable square feet of space on the twelfth floor of
the Building (the "Twelfth Floor Space"), which space is outlined on Exhibit I
attached hereto and made a part hereof, under the following terms and
conditions: (i) Tenant accepts the Twelfth Floor Space in its existing "AS-IS"
condition; (ii) Tenant shall occupy the Twelfth Floor Space, commencing on the
date of commencement of Work, until the Commencement Date but in no event later
than April 15, 2000; and (iii) all of the terms and conditions with respect to
the Premises shall apply to the Twelfth Floor Space (including, but not limited
to, Tenant's insurance and indemnity obligations) except that Tenant shall have
no obligation to pay any Base Rental or additional rent on account of Operating
Expenses or Real Estate Taxes for the Twelfth Floor Space. Once the Premises
shall have been substantially completed, Tenant shall vacate the Twelfth Floor
Space and return the Twelfth Floor Space to Landlord, broom-clean, in the same
condition Tenant received such space, normal wear and tear and damage by
casualty accepted. Notwithstanding the foregoing, Tenant will pay promptly when
due and in any event not later than fifteen (15) days after receipt of a ▇▇▇▇
(whether said ▇▇▇▇ be submitted by Landlord, the City of Philadelphia or
otherwise), all City of Philadelphia School District Use and Occupancy Tax
imposed upon the use and occupancy of the Twelfth Floor Space.
49. Option to Renew.
---------------
(a) Conditions. Tenant is granted the right and option to extend the
----------
term of this Lease with respect to the Premises for one (1) additional period of
five (5) years, such renewal term to commence upon the expiration of the initial
term of the Lease, provided that:
(i) Such option must be exercised, if at all, by written notice
to Landlord given at least nine (9) months prior to the expiration of the
initial term; and
(ii) At the time of the exercise of such option, the Lease shall
be in full force and effect and there shall exist no default by Tenant beyond
any applicable period of grace.
28
(b) Renewal Terms. In the event the foregoing option is effectively
-------------
exercised, all the terms and conditions contained in the Lease shall continue to
apply during the renewal term except that:
(i) There shall be no construction allowance or other tenant
incentives or concessions, and no further right of renewal; and
(ii) For and during the renewal term, the annual Base Rental
shall be adjusted to the "Fair Market Rental" (defined in Paragraph 48(c) below)
of the Premises.
(c) Fair Market Rental. As used herein, the term "Fair Market
------------------
Rental" shall mean the prevailing rental rate including any increases to such
rate during the renewal term (taking into account all concessions furnished over
the lease term, but without deduction for tenant improvements or architectural-
related costs or allowances) being obtained by Landlord, on or about the 90th
day preceding the applicable commencement date for the renewal period, for
tenancies of space in the Building of similar size, term and location (adjusted
on a square foot basis in accordance with the size of the premises), or if no
such tenancies are then being obtained by Landlord, the prevailing market rental
for such space as determined by Landlord, in its good faith judgment, based upon
previous rental rates obtained for the Building and/or comparable buildings in
comparable areas; provided that if the manner of charging operating costs or
other items of escalation to tenants in the Building (or for any comparable
buildings utilized by Landlord) is different from that set forth in this Lease,
Landlord shall make a further adjustment to take such difference into account.
(d) Notice. Promptly after the determination by Landlord of the Fair
------
Market Rental, as set forth above, Landlord shall send written notice to Tenant
thereof and shall advise Tenant of the adjustment to Base Rental resulting
therefrom.
29
IN WITNESS WHEREOF, the parties have executed this Lease as of the day and
year first above written.
LANDLORD:
ELEVEN COLONIAL PENN PLAZA
ASSOCIATES, a Pennsylvania limited partnership
By: THE STATE TEACHERS RETIREMENT
SYSTEM OF OHIO, its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Director, Eastern Region - Real Estate
TENANT:
ASHTON TECHNOLOGY GROUP, INC., a
Delaware Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
EXHIBITS
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A Floor Plan
B Legal Description
C Commencement Date Agreement
D Tenant Improvements
E Tenant Estoppel Certificate
F Rules and Regulations
G Letter of Credit