VIRGINIA
VIRGINIA
TRIPLE NET
DEED OF LEASE
BRANDYWINE GRANDE C, L.P.,
Landlord
and
PPD DEVELOPMENT, LLC,
Tenant
for
The ▇▇▇▇▇▇ A-1 Building
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The ▇▇▇▇▇▇ A-2 Building
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and
Suites A-K of
The ▇▇▇▇▇▇ VII Building
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
TABLE OF CONTENTS
Page
----
1. SUMMARY OF DEFINED TERMS .................................... 1
2. PREMISES .................................................... 3
3. TERM ........................................................ 4
4. CONSTRUCTION BY LANDLORD .................................... 5
5. FIXED RENT; SECURITY DEPOSIT ................................ 5
6. ADDITIONAL RENT ............................................. 6
7. UTILITIES ................................................... 9
8. SIGNS; USE OF PREMISES AND COMMON AREAS ..................... 9
9. ENVIRONMENTAL MATTERS ....................................... 10
10. TENANT'S ALTERATIONS ........................................ 12
11. CONSTRUCTION LIENS .......................................... 13
12. ASSIGNMENT AND SUBLETTING ................................... 13
13. LANDLORD'S RIGHT OF ENTRY ................................... 16
14. REPAIRS AND MAINTENANCE ..................................... 16
15. INSURANCE; SUBROGATION RIGHTS ............................... 17
16. INDEMNIFICATION ............................................. 18
17. QUIET ENJOYMENT ............................................. 19
18. FIRE DAMAGE ................................................. 19
19. SUBORDINATION; RIGHTS OF MORTGAGEE .......................... 19
20. CONDEMNATION ................................................ 20
21. ESTOPPEL CERTIFICATE ........................................ 21
22. DEFAULT ..................................................... 21
23. INTENTIONALLY DELETED ....................................... 24
24. LANDLORD'S REPRESENTATIONS AND WARRANTIES ................... 24
25. SURRENDER ................................................... 24
26. RULES AND REGULATIONS ....................................... 25
27. GOVERNMENTAL REGULATIONS ............................................. 25
28. NOTICES .............................................................. 25
29. BROKERS .............................................................. 26
30. CHANGE OF BUILDING/PROJECT NAMES ..................................... 26
31. LANDLORD'S LIABILITY ................................................. 26
32. AUTHORITY ............................................................ 26
33. NO OFFER ............................................................. 26
34. RIGHT OF EXPANSION ................................................... 26
35. INTENTIONALLY DELETED ................................................ 27
36. MISCELLANEOUS PROVISIONS ............................................. 27
37. WAIVER OF TRIAL BY JURY .............................................. 29
38. CONSENT TO JURISDICTION .............................................. 29
EXHIBITS
EXHIBIT "A" - LOCATION PLAN OF THE PREMISES
EXHIBIT "B" - CONFIRMATION OF LEASE TERM
EXHIBIT "C" - RULES AND REGULATIONS
ii
LEASE
THIS LEASE ("Lease") entered into as of the 1st day of July, 2001,
between BRANDYWINE GRANDE C, L.P., a Delaware limited partnership ("Landlord"),
and PPD DEVELOPMENT, LLC, a Texas limited liability company with its principal
place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Tenant").
WITNESSETH
In consideration of the mutual covenants herein set forth, and intending
to be legally bound, the parties hereto covenant and agree as follows:
1. SUMMARY OF DEFINED TERMS.
The following defined terms, as used in this Lease, shall have the
meanings and shall be construed as set forth below:
(a) "Buildings": The ▇▇▇▇▇▇ A-1 Building located at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "▇▇▇▇▇▇ A-1 Building"), the ▇▇▇▇▇▇ A-2
Building located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "▇▇▇▇▇▇ A-2
Building") and the Dabney VII Building located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "▇▇▇▇▇▇ VII Building").
(b) "Project": The Buildings, the land and all other improvements
located at ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
(c) "Premises": The ▇▇▇▇▇▇ A-1 Building, the ▇▇▇▇▇▇ A-2 Building,
the crosswalk connecting the ▇▇▇▇▇▇ A-1 Building and the ▇▇▇▇▇▇ A-2 Building,
the crosswalk connecting the ▇▇▇▇▇▇ A-2 Building and the ▇▇▇▇▇▇ VII Building and
Suite Nos. A-K of the ▇▇▇▇▇▇ VII Building, which the parties stipulate and agree
contains 75,133 rentable square feet of area, all as shown on the location plans
attached hereto as Exhibit "A" and made a part hereof.
(d) "Term": From July 1, 2001 through August 31, 2014; provided,
however, the Term shall not commence with respect to (i) Suite C of the ▇▇▇▇▇▇
VII Building ("Suite C") until the Suite C Commencement Date as provided in
Article 4 and (ii) Suites G and H of the ▇▇▇▇▇▇ VII Building ("Suites G&H")
until the Suite G&H Commencement Date as provided in Article 4.
(e) "Fixed Rent":
Applicable to all portions of the Premises except Suite C and Suites
G&H (68,012 square feet): Note: See Article 5(a) regarding a
potential reduction of Fixed Rent for the month of July, 2001.
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LEASE YEAR RENT PER MONTHLY ANNUAL FIXED
---------- -------- ------- ------------
R.S.F INSTALLMENTS RENT
----- ------------ ----
-----------------------------------------------------------------------------------------
July 1, 2001 through June 30, 2002 $7.71 $43,697.71 $524,372.52
-----------------------------------------------------------------------------------------
July 1, 2002 through June 30, 2003 $7.90 $44,774.57 $537,294.80
-----------------------------------------------------------------------------------------
July 1, 2003 through June 30, 2004 $8.10 $45,908.10 $550,897.20
-----------------------------------------------------------------------------------------
July 1, 2004 through June 30, 2005 $8.30 $47,041.63 $564,499.60
-----------------------------------------------------------------------------------------
July 1, 2005 through June 30, 2006 $8.51 $48,231.84 $578,782.12
-----------------------------------------------------------------------------------------
July 1, 2006 through June 30, 2007 $8.72 $49,422.05 $593,064.64
-----------------------------------------------------------------------------------------
July 1, 2007 through June 30, 2008 $8.94 $50,668.94 $608,027.28
-----------------------------------------------------------------------------------------
July 1, 2008 through June 30, 2009 $9.17 $51,972.50 $623,670.04
-----------------------------------------------------------------------------------------
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July 1, 2009 through June 30, 2010 $ 9.39 $53,219.39 $638,632.68
---------------------------------------------------------------------------------------------------
July 1, 2010 through June 30, 2011 $ 9.63 $54,579.63 $654,955.56
---------------------------------------------------------------------------------------------------
July 1, 2011 through June 30, 2012 $ 9.87 $55,939.87 $671,278.44
---------------------------------------------------------------------------------------------------
July 1, 2012 through June 30, 2013 $10.12 $57,356.79 $688,281.44
---------------------------------------------------------------------------------------------------
July 1, 2013 through June 30, 2014 $10.37 $58,773.70 $705,284.44
---------------------------------------------------------------------------------------------------
July 1, 2014 through August 31, 2014 $10.63 $60,247.30 $722,967.56
---------------------------------------------------------------------------------------------------
Applicable to Suite C beginning on the Suite C Commencement Date (2,365
square feet):
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LEASE YEAR RENT PER MONTHLY ANNUAL FIXED
---------- -------- ------- ------------
R.S.F INSTALLMENTS RENT
----- ------------ ----
---------------------------------------------------------------------------------------------------
July 1, 2001 through June 30, 2002 $ 7.71 $1,519.51 $18,234.15
---------------------------------------------------------------------------------------------------
July 1, 2002 through June 30, 2003 $ 7.90 $1,556.96 $18,683.50
---------------------------------------------------------------------------------------------------
July 1, 2003 through June 30, 2004 $ 8.10 $1,596.38 $19,156.50
---------------------------------------------------------------------------------------------------
July 1, 2004 through June 30, 2005 $ 8.30 $1,635.79 $19,629.50
---------------------------------------------------------------------------------------------------
July 1, 2005 through June 30, 2006 $ 8.51 $1,677.18 $20,126.15
---------------------------------------------------------------------------------------------------
July 1, 2006 through June 30, 2007 $ 8.72 $1,718.57 $20,622.80
---------------------------------------------------------------------------------------------------
July 1, 2007 through June 30, 2008 $ 8.94 $1,761.93 $21,142.10
---------------------------------------------------------------------------------------------------
July 1, 2008 through June 30, 2009 $ 9.17 $1,807.25 $21,687.05
---------------------------------------------------------------------------------------------------
July 1, 2009 through June 30, 2010 $ 9.39 $1,850.61 $22,207.35
---------------------------------------------------------------------------------------------------
July 1, 2010 through June 30, 2011 $ 9.63 $1,897.91 $22,774.95
---------------------------------------------------------------------------------------------------
July 1, 2011 through June 30, 2012 $ 9.87 $1,945.21 $23,342.55
---------------------------------------------------------------------------------------------------
July 1, 2012 through June 30, 2013 $10.12 $1,994.48 $23,933.80
---------------------------------------------------------------------------------------------------
July 1, 2013 through June 30, 2014 $10.37 $2,043.75 $24,525.05
---------------------------------------------------------------------------------------------------
July 1, 2014 through August 31, 2014 $10.63 $2,095.00 $25,139.95
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Applicable to Suites G&H beginning on the Suites G&H Rent Commencement
Date (4,756 square feet):
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LEASE YEAR RENT PER MONTHLY ANNUAL FIXED
---------- -------- ------- ------------
R.S.F INSTALLMENTS RENT
----- ------------ ----
---------------------------------------------------------------------------------------------------
October 1, 2001 through June 30, 2002 $ 7.71 $3,055.73 $36,668.76
---------------------------------------------------------------------------------------------------
July 1, 2002 through June 30, 2003 $ 7.90 $3,131.03 $37,572.40
---------------------------------------------------------------------------------------------------
July 1, 2003 through June 30, 2004 $ 8.10 $3,210.30 $38,523.60
---------------------------------------------------------------------------------------------------
July 1, 2004 through June 30, 2005 $ 8.30 $3,289.57 $39,474.80
---------------------------------------------------------------------------------------------------
July 1, 2005 through June 30, 2006 $ 8.51 $3,372.80 $40,473.56
---------------------------------------------------------------------------------------------------
July 1, 2006 through June 30, 2007 $ 8.72 $3,456.03 $41,472.32
---------------------------------------------------------------------------------------------------
July 1, 2007 through June 30, 2008 $ 8.94 $3,543.22 $42,518.64
---------------------------------------------------------------------------------------------------
July 1, 2008 through June 30, 2009 $ 9.17 $3,634.38 $43,612.52
---------------------------------------------------------------------------------------------------
July 1, 2009 through June 30, 2010 $ 9.39 $3,721.57 $44,658.84
---------------------------------------------------------------------------------------------------
July 1, 2010 through June 30, 2011 $ 9.63 $3,816.69 $45,800.28
---------------------------------------------------------------------------------------------------
July 1, 2011 through June 30, 2012 $ 9.87 $3,911.81 $46,941.72
---------------------------------------------------------------------------------------------------
July 1, 2012 through June 30, 2013 $10.11 $4,006.93 $48,083.16
---------------------------------------------------------------------------------------------------
July 1, 2013 through June 30, 2014 $10.37 $4,109.98 $49,319.72
---------------------------------------------------------------------------------------------------
July 1, 2014 through August 31, 2014 $10.63 $4,213.02 $50,556.28
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(f) "Security Deposit": $7,583.00.
2
(g) "Tenant's Allocated Share": ▇▇▇▇▇▇ A-1 Building: 100%
▇▇▇▇▇▇ A-2 Building: 100%
▇▇▇▇▇▇ VII Building: 77%;
(h) "Rentable Area": Premises 75,133 sq. ft.
Project 81,710 sq. ft.
(i) "Permitted Uses": Tenant's use of the Premises shall be limited
to warehouse, laboratory and general office use and storage incidental thereto.
Tenant's rights to use the Premises shall be subject to all applicable laws and
governmental rules and regulations and to all reasonable requirements of the
insurers of the Buildings.
(j) "Broker": ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Co.
(k) "Notice Address/Contact"
Tenant:
PPD Development, LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Facilities Administrator
with a copy to:
PPD Development, LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Landlord:
Brandywine Grande C, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
with a copy to:
Brandywine Realty Trust
▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, General Counsel
(l) "Tenant's North American Industry Number": 541710
(m) "Additional Rent": All sums of money or charges required to be
paid by Tenant under this Lease other than Fixed Rent, whether or not such sums
or charges are designated as "Additional Rent".
(n) "Rent": All Annual Fixed Rent, monthly installments of Annual
Fixed Rent, Fixed Rent and Additional Rent payable by Tenant to Landlord under
this Lease.
2. PREMISES. Landlord does hereby lease, demise and let unto Tenant and
Tenant does hereby hire and lease from Landlord the Premises for the Term, upon
the provisions, conditions and limitations set forth herein
3
including the provisions of Article 3 regarding the Suite C Commencement Date
and the Suites G&H Commencement Date.
3. TERM.
(a) The Term of this Lease shall commence (the "Commencement Date")
on July 1, 2001 except with respect to Suite C, Suites G&H and the 2,400
rentable square feet of space designated as Suite F of the ▇▇▇▇▇▇ VII Building
("Suite F") and shall expire on August 31, 2014.
(b) The Term of this Lease shall commence with respect to Suite C on
the date which Landlord is able to deliver possession of Suite C to Tenant (the
"Suite C Commencement Date"). Tenant acknowledges that Suite C is subject to an
existing lease with Texel Corporation which does not expire until July 7, 2003
(the "Texel Lease") and that Landlord is attempting to arrange an early
termination of the Texel Lease to allow occupancy of Suite C by Tenant. Tenant
agrees to pay all costs and expenses incurred by Landlord in connection with the
early termination of the Texel Lease including but not limited to (i) the cost
of relocating Texel from Suite C into other space owned by Landlord or its
affiliates (the "Substitute Texel Space"), (ii) the cost of improving the
Substitute Texel Space to a condition required to obtain the agreement of Texel
to vacate Suite C, (iii) the difference between the market rent for the
Substitute Texel Space and the rent to be paid by Texel for such space (which
Tenant acknowledges will be based on the rent under the Texel Lease without
regard to differences in size and quality) and (iv) any termination payment
required by Texel (the "Suite C Termination Costs"); provided, however, Landlord
agrees the Suite C Termination Costs shall not exceed a total of $48,000.00
without the prior approval of Tenant. Landlord agrees to allow ▇▇▇▇▇▇'s
contractors to submit bids to provide construction and relocation services in
connection with the relocation of Texel to the Substitute Texel Space, provided
Landlord shall have the right to determine in its reasonable discretion whether
to accept any such bid.
(c) The Term of this Lease shall commence with respect to Suites G&H
on the date which ▇▇▇▇▇▇▇▇ is able to deliver possession of Suites G&H to Tenant
(the "Suites G&H Commencement Date") which Landlord estimates will be no earlier
than September 1, 2001 or later than November 1, 2001. Tenant acknowledges that
Suites G&H are subject to an existing lease with Suitable for Framing which does
not expire until August 31, 2001 and that Landlord will relocate Suitable for
Framing to other space owned by Landlord or its affiliates which will require a
holdover estimated at approximately thirty (30) days beyond the expiration date
of August 31, 2001. ▇▇▇▇▇▇▇▇ agrees to use commercially reasonable efforts to
deliver possession of Suites G&H to Tenant not later than November 1, 2001 and
Landlord agrees that Tenant's obligation for payment of Fixed Rent applicable to
Suites G&H shall not commence until the thirty-first (31st) day following the
Suites G&H Commencement Date.
(d) The Term of this Lease shall commence with respect to Suite F on
the date which Landlord is able to deliver possession of Suite F to Tenant (the
"Suite F Commencement Date") which Landlord estimates will be no earlier than
July 1, 2001 or later than August 1, 2001. Tenant acknowledges that Suite F is
presently occupied under a license agreement which will terminate no later than
July 31, 2001. ▇▇▇▇▇▇▇▇ agrees to use commercially reasonable efforts to deliver
possession of Suite F to Tenant not later than August 1, 2001 and ▇▇▇▇▇▇▇▇
agrees that ▇▇▇▇▇▇'s obligation for payment of Fixed Rent applicable to Suite F
shall not commence until the Suite F Commencement Date as provided in Article
5(a).
(e) Each of the Commencement Date, the Suite C Commencement Date, the
Suites G&H Commitment Date and the Suite F Commencement Date shall be confirmed
by Landlord and Tenant by the execution of a Confirmation of Lease Term
substantially in the form attached hereto as Exhibit "B". If Tenant fails to
execute or object to the Confirmation of Lease Term within ten (10) business
days of its delivery, Landlord's determination of such dates shall be deemed
accepted.
(f) For good and valuable consideration, Landlord and Tenant
acknowledge and agree that (i) they are parties to three (3) existing leases of
portions of the Premises, one dated September 3, 1993, as amended, one dated
June 3, 1997, as amended, and one dated May 4, 1999 (the "Prior Leases"), (ii)
they have independently determined to enter into this Lease to establish a new
landlord/tenant relationship rather than to extend or renew the
4
Prior Leases and (iii) the Prior Leases shall terminate as of the Commencement
Date and shall thereafter be of no further force or effect.
4. CONSTRUCTION BY LANDLORD. ▇▇▇▇▇▇ agrees to accept the Premises in
"AS-IS" condition and Landlord shall have no responsibility for improvements to
the Premises other than to fund the construction allowance as provided in
Article 10 of this Lease
5. FIXED RENT; SECURITY DEPOSIT.
(a) Tenant shall pay to Landlord without notice or demand, and
without set-off, the annual Fixed Rent payable in the monthly installments of
Fixed Rent as set forth in Article 1(e), in advance on the first day of each
calendar month during the Term either (i) by wire transfer of immediately
available funds to the account at PNC Bank, account no. 8610818762, with ABA
routing number ▇▇▇▇▇▇▇▇▇; such transfer to be confirmed to Brandywine Realty
Services Corporation's accounting department (▇▇▇-▇▇▇-▇▇▇▇ - fax) by written
facsimile or (ii) by check mailed to Landlord c/o Brandywine Realty Services,
Post Office Box 828117, Philadelphia, PA 19182-8117. ▇▇▇▇▇▇▇▇ agrees that,
notwithstanding anything to the contrary contained in this Lease, until the
Suite F Commencement Date, the Fixed Rent due and payable as provided in Article
1(e) shall be reduced at the rate of $1,542.00 per month due to the
unavailability of Suite F prior to the Suite F Commencement Date.
(b) In the event any Fixed Rent or Additional Rent, charge, fee or
other amount due from Tenant under the terms of this Lease are not paid to
Landlord when due, Tenant shall also pay as Additional Rent a service and
handling charge equal to ten (10%) percent of the total payment then due. The
aforesaid late fee shall begin to accrue on the initial date of a payment due
date, irrespective of any grace period granted hereunder. This provision shall
not prevent Landlord from exercising any other remedy herein provided or
otherwise available at law or in equity in the event of any default by Tenant.
(c) Tenant shall be required to pay a Security Deposit of $7,583.00
under this Lease (the "Collateral"), as security for the prompt, full and
faithful performance by Tenant of each and every provision of this Lease and of
all obligations of Tenant hereunder, which shall be paid by ▇▇▇▇▇▇▇▇'s retention
of the security deposits under the Prior Leases. No interest shall be paid to
Tenant on the Collateral, and Landlord shall have the right to commingle the
Collateral with other Security Deposits held by Landlord. If Tenant fails to
perform any of its obligations hereunder, Landlord may use, apply or retain the
whole or any part of the Collateral for the payment of (i) any rent or other
sums of money which Tenant may not have paid when due, (ii) any sum expended by
Landlord on Tenant's behalf in accordance with the provisions of this Lease,
and/or (iii) any sum which Landlord may expend or be required to expend by
reason of Tenant's default, including, without limitation, any damage or
deficiency in or from the reletting of the Premises as provided in this Lease.
The use, application or retention of the Collateral, or any portion thereof, by
Landlord shall not prevent Landlord from exercising any other right or remedy
provided by this Lease or by law (it being intended that Landlord shall not
first be required to proceed against the Collateral) and shall not operate as
either liquidated damages or as a limitation on any recovery to which Landlord
may otherwise be entitled. If any portion of the Collateral is used, applied or
retained by Landlord for the purposes set forth above, ▇▇▇▇▇▇ agrees, within ten
(10) days after the written demand therefor is made by Landlord, to deposit cash
with the Landlord in an amount sufficient to restore the Collateral to its
original amount. In addition to the foregoing, if Tenant defaults in its
performance under this Lease, irrespective of whether such default is cured,
more than once during the Term, Landlord may require Tenant to increase the
Collateral to the greater of twice the (i) Basic Rent paid monthly, and (ii) the
initial amount of the Collateral.
If Tenant shall fully and faithfully comply with all of the provisions
of this Lease, the Collateral, or any balance thereof, shall be returned to
Tenant without interest after the expiration of the Term or upon any later date
after which ▇▇▇▇▇▇ has vacated the Premises. In the absence of evidence
satisfactory to Landlord of any permitted assignment of the right to receive the
Collateral, Landlord may return the same to the original Tenant, regardless of
one or more assignments of Tenant's interest in this Lease or the Collateral.
Upon the return of the Collateral, or the remaining balance thereof to the
original Tenant or any successor to the original Tenant, Landlord shall be
completely relieved of liability with respect to the Collateral.
5
In the event of a transfer of the Project, Landlord shall have
the right to transfer the Collateral to the vendee or lessee and Landlord shall
thereupon be released by Tenant from all liability for the return of such
Collateral. Upon the assumption of such Collateral by the transferee, ▇▇▇▇▇▇
agrees to look solely to the new landlord for the return of said Collateral, and
the provisions hereof apply to every transfer or assignment made of the
Collateral to a new landlord. Tenant further covenants that it will not assign
or encumber or attempt to assign or encumber the Collateral and that neither
Landlord nor its successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment or attempted encumbrance.
The Collateral shall not be mortgaged, assigned or encumbered
in any manner whatsoever by Tenant without the prior written consent of
Landlord.
6. ADDITIONAL RENT.
(a) Commencing on the Commencement Date, and in each
calendar year thereafter during the Term (as same may be extended), Tenant shall
pay to Landlord, as additional rent, within thirty (30) days after Landlord
certifies to Tenant the amount thereof, the following charges ("Recognized
Expenses"), without deduction or set off, such charges to be based upon ▇▇▇▇▇▇'s
Allocated Share of such charges, as stated in Article 1(h) herein.
(1) Insurance Premiums. All premiums paid or
payable by Landlord for insurance with respect to the Project as follows: (a)
fire and extended coverage insurance (including demolition and debris removal);
(b) insurance against Landlord's rental loss or abatement (but not including
business interruption coverage on behalf of Tenant), from damage or destruction
from fire or other casualty; (c) Landlord's comprehensive liability insurance
(including bodily injury and property damage) and boiler insurance; and (d) such
other insurance as Landlord or any reputable mortgage lending institution
holding a mortgage on the Premises may require.
If the coverage period of any of such insurance obtained by Landlord commences
before or extends beyond the Term, the premium therefore shall be prorated to
the Term. If any such insurance is provided by blanket coverage, the part of the
premium allocated to the Project shall be equitably determined by Landlord but
shall not exceed the amount of premium due if insurance was provided by a policy
only insuring the Project. Should Tenant's occupancy or use of the Premises at
any time change and thereby cause an increase in such insurance premiums on the
Premises, any of the Buildings or the Project, Tenant shall pay to Landlord the
entire amount of such increase.
(2) Operating Expenses. All costs and expenses
related to the Project incurred and paid by Landlord during the Term, including,
but not limited to:
(a) All costs and expenses related to the
operation of the Buildings, the Project and the common areas for the Buildings
and the Project, including, but not limited to, common area lighting, cleaning
the Building exteriors and common areas of the Buildings and Project, trash
removal and recycling, pest control, repairs and maintenance of the roof and
storm water management system, fire suppression and alarm systems, utilities
benefiting the common areas, removing snow, ice and debris and maintaining all
landscape areas, (including replacing and replanting flowers, shrubbery and
trees), maintaining and repairing all other exterior improvements on the
Project, all repairs and compliance costs necessitated by laws enacted or which
become effective after the date hereof (including, without limitation, any
additional regulations or requirements enacted after the date hereof regarding
the Americans With Disabilities Act (as such applies to the Project or common
areas but not to any individual tenant's space), if applicable) required of
Landlord under applicable laws, rules and regulations and policing and
regulating traffic to and from the Project. Landlord's obligation to provide
snow removal services shall be limited to the parking areas and the sidewalk
entrances.
(b) All costs and expenses incurred by
Landlord for ordinary compliance type environmental testing, sampling or
monitoring required by statute, regulation or order of governmental authority,
necessary except any costs or expenses incurred in conjunction with the spilling
or depositing of any hazardous substance for which any person or other tenant is
legally liable.
6
(c) Any other expense or charge which would typically be
considered an expense of maintaining, operating or repairing the Project under
generally accepted accounting principles.
(d) Management fee not to exceed five (5%) percent of Fixed
Rent which is applicable to the overall operation of the Project. It is
expressly understood that legal fees incurred in an action against an individual
tenant shall not be deemed includable as an operating expense pursuant to this
provision.
Notwithstanding the foregoing, the term "Recognized Expenses"
shall not include any of the following:
(a) Repairs or other work occasioned by fire, windstorm or
other insured casualty plus any "deductibles" or by the exercise of the right of
eminent domain;
(b) Leasing commissions, accountants', consultants', auditors
or attorneys' fees, costs and disbursements and other expenses incurred in
connection with negotiations or disputes with other tenants or prospective
tenants or other occupants, or associated with the enforcement of any other
leases or the defense of Landlord's title to or interest in the real property or
any part thereof;
(c) Costs incurred by Landlord in connection with construction
of the Buildings and related facilities, the correction of latent defects in
construction of the Buildings or the discharge of Landlord's Work;
(d) Costs (including permit, licenses and inspection fees)
incurred in renovating or otherwise improving or decorating, painting, or
redecorating space for other tenants or other occupants or vacant space;
(e) Costs of any items or services sold or provided to tenants
(including Tenant) for which Landlord is reimbursed by such tenants;
(f) Depreciation and amortization;
(g) Costs incurred due to a breach by Landlord or any other
tenant of the terms and conditions of any lease;
(h) Overhead and profit increment paid to subsidiaries or
affiliates of Landlord for management or other services on or to the Buildings
or for supplies, utilities or other materials, to the extent that the costs of
such services, supplies, utilities or materials exceed the reasonable costs that
would have been paid had the services, supplies or materials been provided by
unaffiliated parties on a reasonable basis without taking into effect volume
discounts or rebates offered to Landlord as a portfolio purchaser;
(i) Interest on debt or amortization payments on any mortgage
or deeds of trust or any other borrowings and any ground rent;
(j) Ground rents or rentals payable by Landlord pursuant to
any over-lease;
(k) Any compensation paid to clerks, attendants or other
persons in commercial concessions operated by Landlord;
(l) All items and services for which Tenant reimburses
Landlord or which Landlord provides selectively to one or more tenants or
occupants of the Buildings (other than Tenant) without reimbursement;
7
(m) Costs incurred in managing or operating any "pay for"
parking facilities within the Project;
(n) Any fines or fees for Landlord's failure to comply with
governmental, quasi- governmental, or regulatory agencies' rules and
regulations; and
(o) Legal, accounting and other expenses related to Landlord's
financing, re-financing, mortgaging or selling the Buildings or the Project.
(3) Taxes. Taxes shall be defined as all taxes, assessments and
other governmental charges ("Taxes"), including special assessments for public
improvements or traffic districts which are levied or assessed against the
Project during the Term or, if levied or assessed prior to the Term, which
properly are allocable to the Term, and real estate tax appeal expenditures
incurred by Landlord to the extent of any reduction resulting thereby. Nothing
herein contained shall be construed to include as Taxes: (A) any inheritance,
estate, succession, transfer, gift, franchise, corporation, net income or profit
tax or capital levy that is or may be imposed upon Landlord or (B) any transfer
tax or recording charge resulting from a transfer of the Buildings or the
Project; provided, however, that if at any time during the Term the method of
taxation prevailing at the commencement of the Term shall be altered so that in
lieu of or as a substitute for the whole or any part of the taxes now levied,
assessed or imposed on real estate as such there shall be levied, assessed or
imposed (i) a tax on the rents received from such real estate, or (ii) a license
fee measured by the rents receivable by Landlord from the Premises or any
portion thereof, or (iii) a tax or license fee imposed upon Premises or any
portion thereof, then the same shall be included in the computation of Taxes
hereunder.
(b) Commencing on the first day of the month following the Commencement
Date, Tenant shall pay, in monthly installments in advance, on account of
Tenant's Allocated Share of Recognized Expenses and Taxes, the estimated amount
of such Recognized Expenses and Taxes for such year as determined by Landlord in
its reasonable discretion and as set forth in a notice to Tenant, such notice to
include the basis for such calculation. Prior to the end of the calendar year in
which the Lease commences and thereafter for each successive calendar year
(each, a "Lease Year"), or part thereof, Landlord shall send to Tenant a
statement of projected increases in Recognized Expenses and Taxes and shall
indicate what Tenant's projected share of Recognized Expenses and Taxes shall
be. Said amount shall be paid in equal monthly installments in advance by Tenant
as Additional Rent commencing January 1 of the applicable Lease Year.
(c) If during the course of any Lease Year, Landlord shall have reason to
believe that the Recognized Expenses and Taxes shall be different than that upon
which the aforesaid projections were originally based, then Landlord shall be
entitled to adjust the amount by reallocating the remaining payments for such
year, for the months of the Lease Year which remain for the revised projections,
and to advise Tenant of an adjustment in future monthly amounts to the end
result that the Recognized Expenses and Taxes shall be collected on a reasonably
current basis each Lease Year.
(d) In calculating the Recognized Expenses as hereinbefore described, if
for thirty (30) or more days during the preceding Lease Year less than
ninety-five (95%) percent of the rentable area of the Buildings shall have been
occupied by tenants, then the Recognized Expenses attributable to the Property
shall be deemed for such Lease Year to be amounts equal to the Recognized
Expenses which would normally be expected to be incurred had such occupancy of
the Buildings been at least ninety-five (95%) percent throughout such year, as
reasonably determined by Landlord (i.e., taking into account that certain
expenses depend on occupancy and certain expenses do not (e.g., landscaping)).
Furthermore, if Landlord shall not furnish any item or items of Recognized
Expenses to any portions of the Buildings because such portions are not occupied
or because such item is not required by the tenant of such portion of the
Buildings, for the purposes of computing Recognized Expenses, an equitable
adjustment shall be made so that the item of Operating Expense in question shall
be shared only by tenants actually receiving the benefits thereof.
(e) By April 30 of each Lease Year or as soon thereafter as
administratively available, Landlord shall send to Tenant a statement of actual
expenses incurred for Recognized Expenses and Taxes for the
8
prior Lease Year showing the Allocated Share due from Tenant. Landlord shall use
its reasonable efforts to provide Tenant with the aforesaid statements on or
before April 30 of each Lease Year; provided, however, if Landlord is unable to
provide such statements by April 30, Landlord shall not have been deemed to
waive its right to collect any such amounts as Additional Rent. In the event the
amount prepaid by ▇▇▇▇▇▇ exceeds the amount that was actually due then Landlord
shall issue a credit to Tenant in an amount equal to the over charge, which
credit Tenant may apply to future payments on account of Recognized Expenses and
Taxes until ▇▇▇▇▇▇ has been fully credited with the over charge. If the credit
due to Tenant is more than the aggregate total of future rental payments,
Landlord shall pay to Tenant the difference between the credit in such aggregate
total. In the event Landlord has undercharged Tenant then Landlord shall send
Tenant an invoice with the additional amount due, which amount shall be paid in
full by Tenant within thirty (30) days of receipt.
(f) Each of the Recognized Expense and Tax amounts, whether
requiring lump sum payment or constituting projected monthly amounts added to
the Fixed Rent, shall for all purposes be treated and considered as Additional
Rent and the failure of Tenant to pay the same as and when due in advance and
without demand shall have the same effect as failure to pay any installment of
the Fixed Rent and shall afford Landlord all the remedies in the Lease therefor
as well as at law or in equity.
(g) If this Lease terminates other than at the end of a
calendar year, Landlord's annual estimate of Recognized Expenses and Taxes shall
be accepted by the parties as the actual Recognized Expenses and Taxes for the
year the Lease ends unless Landlord provides Tenant with actual statements in
accordance with subsection 6(e) above.
7. UTILITIES. From and after the Commencement Date, Tenant shall
make arrangements with each utility company and public body to provide, in
Tenant's name, gas, electricity, water, sewer, telephone, heat, and air
conditioning necessary for Tenant's use of the Premises, and Tenant shall cause
all such utilities to be separately metered, to the extent possible. Tenant
shall pay directly to the companies furnishing utility service the cost of all
service connection fees and the cost of all utilities consumed throughout the
Term. If the water service is not separately metered, Landlord shall pay water
bills for the Buildings, and Tenant shall pay to Landlord prior to the time when
each bill becomes due an amount determined by Landlord based on past bills. In
the event that ▇▇▇▇▇▇ fails to pay in a timely manner any sum required under
this Section, Landlord shall have the right, but not the obligation, to pay any
such sum. Any sum so paid by Landlord shall be deemed to be owing by Tenant to
Landlord and due and payable as Additional Rent within five (5) days after
demand therefor. In addition, if the water service is not separately metered and
Tenant's water usage exceeds an average of $0.15 per square foot of rentable
area of the Premises per year, as reasonably determined by Landlord, Landlord
shall have the option to install a sub-meter, at Tenant's cost and expense, and
to charge Tenant for water and sewer service based on the sub-meter readings.
Landlord shall not be liable for any interruption or delay in electric or any
other utility service for any reason unless caused by the gross negligence or
willful misconduct of Landlord or its agents. Landlord shall have the right to
change the electric and any other utility provider to the Project or to any of
the Buildings at any time. Tenant's obligations for the payment of the costs
incurred for utilities that serve the Premises prior to the termination of this
Lease shall survive termination hereof.
8. SIGNS; USE OF PREMISES AND COMMON AREAS.
(a) Tenant shall continue to enjoy the same identification
signage as was provided pursuant to the Prior Leases. Tenant may at its option
and at its expense, relocate the existing signage in connection with any
relocation of its business offices within the Premises. No other signs shall be
placed, erected or maintained by Tenant at any place upon the Premises,
Buildings or Project.
(b) Tenant may use and occupy the Premises only for the
express and limited purposes stated in Article 1(j) above; and the Premises
shall not be used or occupied, in whole or in part, for any other purpose
without the prior written consent of Landlord; provided that ▇▇▇▇▇▇'s right to
so use and occupy the Premises shall remain expressly subject to the provisions
of "Governmental Regulations", Article 27 herein. No machinery or equipment
shall be permitted that shall cause vibration, noise or disturbance beyond the
Premises.
9
(c) Tenant shall not overload any floor or part thereof in the
Premises or the Buildings, including any public corridors or elevators therein,
bringing in, placing, storing, installing or removing any large or heavy
articles, and Landlord may prohibit, or may direct and control the location and
size of, safes and all other heavy articles, and may require, at Tenant's sole
cost and expense, supplementary supports of such material and dimensions as
Landlord may deem necessary to properly distribute the weight.
(d) Tenant shall not install in or for the Premises, without
Landlord's prior written approval, any equipment which requires more electric
current than Landlord is required to provide under this Lease, and Tenant shall
ascertain from Landlord the maximum amount of load or demand for or use of
electrical current which can safely be permitted in and for the Premises, taking
into account the capacity of electric wiring in the Buildings and the Premises
and the needs of common areas (interior and exterior) and the requirements of
other tenants of the Buildings, and Tenant shall not in any event connect a
greater load than such safe capacity.
(e) Tenant shall not commit or suffer any waste upon the
Premises, Buildings or Project or any nuisance, or any other act or thing which
may disturb the quiet enjoyment of any other tenant in the Buildings or Project.
(f) Tenant shall have the right, non-exclusive and in common
with others, to use the exterior paved driveways and walkways of the Buildings
for vehicular and pedestrian access to the Buildings. Tenant shall also have the
right, in common with other tenants of the Buildings and Landlord, to use the
designated parking areas of the Project for the parking of automobiles of Tenant
and its employees and business visitors, incident to Tenant's permitted use of
the Premises; provided that Landlord shall have the right to restrict or limit
Tenant's utilization of the parking areas in the event the same become
overburdened and in such case to equitably allocate on proportionate basis or
assign parking spaces among Tenant and the other tenants of the Buildings.
Landlord agrees to maintain non-exclusive parking areas serving the Project with
an average of 2.7 spaces per 1,000 square feet of building area within the
Project. Landlord shall have the right to establish reasonable regulations,
applicable to all tenants, governing the use of or access to any interior or
exterior common areas; and such regulations, when communicated by written
notification from Landlord to Tenant, shall be deemed incorporated by reference
hereinafter and part of this Lease.
9. ENVIRONMENTAL MATTERS.
(a) Hazardous Substances.
(i) Tenant shall not, except as provided in
subparagraph (ii) below, bring or otherwise cause to be brought or permit any of
its agents, employees, contractors or invitees to bring in, on or about any part
of the Premises, Buildings or Project, any hazardous substance or hazardous
waste, as such terms are or may be defined in (x) the Comprehensive
Environmental Response, Compensation and Liability Act, as amended by the
Superfund Amendments and Reauthorization Act, 42 U.S.C. 9601-11050, as the same
may from time to time be amended, and the regulations promulgated pursuant
thereto ("CERCLA"); the United States Department of Transportation Hazardous
Materials Table (49 CFR 172.102); by the Environmental Protection Agency as
hazardous substances (40 CFR Part 302); the Clean Air Act; and the Clean Water
Act, and all amendments, modifications or supplements thereto; and/or (y) any
other rule, regulation, ordinance, statute or requirements of any governmental
or administrative agency regarding the environment (collectively, (x) and (y)
shall be referred to as an "Applicable Environmental Laws").
(ii) Tenant may bring to and use at the Premises
hazardous substances incidental to its normal business operations under the NAI
Code referenced in article 1(m) above in the quantities reasonably required for
Tenant's normal business consistent with its occupancy pursuant to the Prior
Leases and in accordance with Applicable Environmental Laws. Tenant shall store
and handle such substances in strict accordance with Applicable Environmental
Laws. From time to time promptly following a request by Landlord, which shall
not be made more frequently than quarterly, Tenant shall provide Landlord with
documents identifying the hazardous substances stored or used by Tenant on the
Premises and describing the chemical properties of such substances and such
other information reasonably requested by Landlord or Tenant. Prior to the
expiration or sooner termination of
10
this Lease, Tenant shall remove all hazardous substances from the Premises and
shall provide Landlord with an inspection report from an independent
environmental engineer certifying that the Premises and the land surrounding the
Premises are free of contamination from hazardous substances and hazardous
wastes. The provisions of this paragraph shall be personal to Tenant and, in the
event Tenant ceases to occupy the Premises, Landlord's approval to store and use
hazardous substances shall automatically terminate.
(iii) Tenant shall defend, indemnify and hold harmless
Landlord, Brandywine Realty Services Corp. and Brandywine Realty Trust and their
respective employees and agents from and against any and all third-party claims,
actions, damages, liability and expense (including all attorney's, consultant's
and expert's fees, expenses and liabilities incurred in defense of any such
claim or any action or proceeding brought thereon) arising from Tenant's storage
and use of hazardous substances on the Premises including, without limitation,
any and all costs incurred by Landlord because of any investigation of the
Project or any cleanup, removal or restoration of the Project to remove or
remediate hazardous substances or hazardous wastes deposited by Tenant. Without
limitation of the foregoing, if Tenant, its officers, employees, agents,
contractors, licensees or invitees, cause contamination of the Premises by any
hazardous substances, Tenant shall promptly at its sole expense, take any and
all necessary actions to return the Premises to the condition existing prior to
such contamination, or in the alternative take such other remedial steps as may
be required by law.
(b) NAI Numbers.
(i) Tenant represents and warrants that Tenant's NAI number
as designated in the North American Industry Classification System Manual
prepared by the Office of Management and Budget, and as set forth in Article
1(m) hereof, is correct. Tenant represents that the specific activities intended
to be carried on in the Premises are in accordance with Article 1(j).
(ii) Except as provided in Article 9(a)(ii), Tenant shall not
engage in operations at the Premises which involve the generation, manufacture,
refining, transportation, treatment, storage, handling or disposal of "hazardous
substances" or "hazardous waste" as such terms are defined under any Applicable
Environmental Law. Tenant further covenants that it will not cause or permit to
exist any "release" or "discharge" (as such term is defined under Applicable
Environmental Laws) on or about the Premises.
(iii) Tenant shall, at its expense, comply with all
requirements of Applicable Environmental Laws pertaining thereto.
(iv) In addition, upon written request of Landlord, Tenant
shall cooperate with Landlord in obtaining Applicable Environmental Laws
approval of any transfer of the Buildings. Specifically in that regard, ▇▇▇▇▇▇
agrees that it shall (1) execute and deliver all affidavits, reports, responses
to questions, applications or other filings required by Landlord and related to
Tenant's activities at the Premises, (2) allow inspections and testing of the
Premises during normal business hours, and (3) as respects the Premises, perform
any requirement reasonably requested by Landlord necessary for the receipt of
approvals under Applicable Environmental Laws, provided the foregoing shall be
at no out-of-pocket cost or expense to Tenant except for clean-up and
remediation costs arising from Tenant's violation of this Article 9.
(c) Additional Terms.
(i) In the event of ▇▇▇▇▇▇'s failure to comply in full with
this Article, Landlord may, after written notice to Tenant and ▇▇▇▇▇▇'s failure
to cure within thirty (30) days of its receipt of such notice, at Landlord's
option, perform any and all of Tenant's obligations as aforesaid and all costs
and expenses incurred by Landlord in the exercise of this right shall be deemed
to be Additional Rent payable on demand and with interest at the Default Rate.
(ii) The parties acknowledge and agree that Tenant shall not
be held responsible for any environmental issue at the Premises unless such
issue was caused by an action or omission of Tenant or its agents, employees,
consultants or invitees.
11
(iii) This Article 9 shall survive the expiration or sooner
termination of this Lease.
10. TENANT'S ALTERATIONS.
(a) Tenant will not cut or drill into or secure any fixture,
apparatus or equipment or make alterations, improvements or physical additions
(collectively, "Alterations") of any kind to any part of the Premises without
first obtaining the written consent of Landlord, such consent not to be
unreasonably withheld. Alterations shall, at ▇▇▇▇▇▇▇▇'s option, be done by
Landlord at Tenant's sole cost and expense. ▇▇▇▇▇▇▇▇'s consent shall not be
required for the installation of any office equipment or fixtures including
internal partitions which do not require disturbance of any structural elements
or systems (other than attachment thereto) within the Buildings. If Landlord
approves Tenant's Alterations and agrees to permit ▇▇▇▇▇▇'s contractors to do
the work, Tenant, prior to the commencement of labor or supply of any materials,
must furnish to Landlord (i) a duplicate or original policy or certificates of
insurance evidencing (a) general public liability insurance for personal injury
and property damage in the minimum amount of $1,000,000.00 combined single
limit, (b) statutory ▇▇▇▇▇▇▇'▇ compensation insurance, and (c) employer's
liability insurance from each contractor to be employed (all such policies shall
be non-cancelable without thirty (30) days prior written notice to Landlord and
shall be in amounts and with companies satisfactory to Landlord); (ii)
construction documents prepared and sealed by a registered Virginia architect if
such alteration is in excess of $25,000; (iii) all applicable building permits
required by law; and (iv) an executed, effective Waiver of Mechanics Liens from
such contractors and all sub-contractors. Any consent by Landlord permitting
Tenant to do any or cause any work to be done in or about the Premises shall be
and hereby is conditioned upon ▇▇▇▇▇▇'s work being performed by workmen and
mechanics without interference with labor employed by Landlord, ▇▇▇▇▇▇▇▇'s
mechanics or their contractors or by any other tenant or their contractors. If
at any time any of the workmen or mechanics performing any of Tenant's work
shall interfere with any labor employed by Landlord, other tenants or their
respective mechanics and contractors, then the permission granted by Landlord to
Tenant permitting Tenant to do or cause any work to be done in or about the
Premises, may be withdrawn by Landlord upon forty-eight (48) hours written
notice to Tenant. Landlord shall be entitled to charge Tenant a reasonable
Construction Management Fee of three percent (3.0%) of the cost of all
Alterations supervised by Landlord,
(b) All Alterations (whether temporary or permanent in
character) made in or upon the Premises (other than the Landlord Work which will
remain on the Premises), either by Landlord or Tenant, shall be Landlord's
property upon installation and shall remain on the Premises without compensation
to Tenant unless Landlord provides written notice to Tenant to remove same at
the expiration of the Lease, in which event Tenant shall promptly remove such
Alterations and restore the Premises to good order and condition. All furniture,
movable trade fixtures and equipment (including telephone and communication
equipment system wiring and cabling) installed by Tenant, its assignees and
sublessees) shall be removed by Tenant at the termination of this Lease. All
such installations, removals and restoration shall be accomplished in a good and
workmanlike manner so as not to damage the Premises or Buildings and in such
manner so as not to disturb other tenants in the Buildings. If Tenant fails to
remove any items required to be removed pursuant to this Article, Landlord may
do so and the costs and expenses thereof shall be deemed Additional Rent
hereunder and shall be reimbursed by Tenant to Landlord within fifteen (15)
business days of Tenant's receipt of an invoice therefor from Landlord.
(c) Tenant acknowledges that modifications have been made to
the ▇▇▇▇▇▇ A-1 Building and the ▇▇▇▇▇▇ A-2 Building in connection with Tenant's
occupancy of such portion of the Premises pursuant to the Prior Leases,
including installation of modified HVAC systems in the ▇▇▇▇▇▇ A-1 Building and
the ▇▇▇▇▇▇ A-2 Building, material penetrations of the roofs of the ▇▇▇▇▇▇ A-1
Building and the ▇▇▇▇▇▇ A-2 Building to accommodate Tenant's facilities and, in
the ▇▇▇▇▇▇ A-1 Building, construction of laboratory facilities. Tenant agrees
that, upon the expiration or sooner termination of this Lease, Tenant shall (i)
remove all excess HVAC facilities within the ▇▇▇▇▇▇ A-1 Building and the ▇▇▇▇▇▇
A-2 Building which Landlord determines will not be beneficial to subsequent
tenants, (ii) put all remaining HVAC units in the ▇▇▇▇▇▇ A-1 Building and the
▇▇▇▇▇▇ A-2 Building in good working order and condition or, as necessary,
replace such units, (iii) repair the roofs on the ▇▇▇▇▇▇ A-1 Building and the
▇▇▇▇▇▇ A-2 Building in accordance with the recommendations of an independent
roof consultant selected by Landlord and reasonably acceptable to Tenant, which
Landlord and Tenant agree shall include replacement of all panels of the metal
roof on the ▇▇▇▇▇▇ A-2 Building which have been penetrated;
12
provided, however, if either or both of the roofs cannot be so repaired, Tenant
shall replace the roof or roofs which cannot be repaired and (iv) otherwise
restore the ▇▇▇▇▇▇ A-1 Building to the condition which existed prior to Tenant's
occupancy of the ▇▇▇▇▇▇ A-1 Building. The work to be performed by Tenant
pursuant to this Article 10(c) shall be in addition to the repairs and
restorations required pursuant to other provisions of this Lease including,
without limitation Article 10(b), Article 14 and Article 25.
(d) Landlord shall provide Tenant an allowance of up to
Forty Seven Thousand Six Hundred Ninety Four Dollars ($47,694.00) (the "Tenant's
Improvement Allowance") to be applied against Tenant's costs in performing
Alterations to the Premises which are made within twelve (12) months from the
Commencement Date (collectively, the "Reimbursable Costs"). Tenant shall notify
Landlord upon the completion of the Alterations and shall provide Landlord with
any back up information reasonably requested by Landlord. The Reimbursable Costs
shall be disbursed by Landlord to Tenant upon completion of the applicable
Alterations and upon Landlord's satisfactory inspection of the work and
confirmation of the amount expended by ▇▇▇▇▇▇. All out-of-pocket costs actually
incurred by Landlord in connection with the review of plans and specifications
for the applicable Alterations and Landlord's Construction Management Fee shall
be deducted from Tenant's Improvement Allowance.
(e) Tenant acknowledges that there is no demising wall
dividing Suites K and L of the ▇▇▇▇▇▇ VII Building and that Tenant shall be
responsible to construct a demising wall between Suites K and L pursuant to
plans to be approved by Landlord. Tenant covenants to complete the design,
approval and construction of such wall within thirty (30) days after the
Commencement Date.
11. CONSTRUCTION LIENS.
(a) Tenant will not suffer or permit any contractor's,
subcontractor's or supplier's lien (a "Construction Lien") to be filed against
the Premises or any part thereof by reason of work, labor services or materials
supplied or claimed to have been supplied to Tenant; and if any Construction
Lien shall at any time be filed against the Premises or any part thereof,
Tenant, within thirty (30) days after notice of the filing thereof, shall cause
it to be discharged of record by payment, deposit, bond, order of a court of
competent jurisdiction or otherwise. If Tenant shall fail to cause such
Construction Lien to be discharged within the period aforesaid, then in addition
to any other right or remedy, Landlord may, but shall not be obligated to,
discharge it either by paying the amount claimed to be due or by procuring the
discharge of such lien by deposit or by bonding proceedings. Any amount so paid
by ▇▇▇▇▇▇▇▇, plus all of Landlord's costs and expenses associated therewith
(including, without limitation, reasonable legal fees), shall constitute
Additional Rent payable by Tenant under this Lease and shall be paid by Tenant
to Landlord on demand with interest from the date of advance by Landlord at the
Default Rate.
(b) Nothing in this Lease, or in any consent to the making
of alterations or improvements shall be deemed or construed in any way as
constituting authorization by Landlord for the making of any alterations or
additions by Tenant within the meaning of Section 43-3 of the Code of Virginia
or any amendment thereof, or constituting a request by Landlord, express or
implied, to any contractor, subcontractor or supplier for the performance of any
labor or the furnishing of any materials for the use or benefit of Landlord.
12. ASSIGNMENT AND SUBLETTING.
(a) Subject to the remaining subsections of Article 12,
except as expressly permitted pursuant to this section, Tenant shall not,
without the prior written consent of Landlord, such consent not to be
unreasonably withheld, assign, transfer or hypothecate this Lease or any
interest herein or sublet the Premises or any part thereof. Any of the foregoing
acts without such consent shall be void and shall, at the option of Landlord,
terminate this Lease. Subject to subparagraph 12(i) below, this Lease shall not,
nor shall any interest herein, be assignable as to the interest of Tenant by
operation of law or by merger, consolidation or asset sale, without the written
consent of Landlord.
(b) If at any time or from time to time during the term of
this Lease Tenant desires to assign this Lease or sublet all or any part of the
Premises, Tenant shall give notice to Landlord of such desire, including the
13
name, address and contact party for the proposed assignee or subtenant, a
description of such party's business history, the effective date of the proposed
assignment or sublease (including the proposed occupancy date by the proposed
assignee or sublessee), and in the instance of a proposed sublease, the square
footage to be subleased, a floor plan professionally drawn to scale, depicting
the proposed sublease area, and a statement of the duration of the proposed
sublease (which shall in any and all events expire by its terms prior to the
scheduled expiration of this Lease, and immediately upon the sooner termination
hereof). Landlord may, at its option, and in its sole and absolute discretion,
exercisable by notice given to Tenant within sixty (60) days next following
Landlord's receipt of Tenant's notice (which notice from Tenant shall, as a
condition of its effectiveness, include all of the above-enumerated
information), elect to recapture the Premises or such portion as is proposed by
Tenant to be sublet (and in each case, the designated and non-designated parking
spaces included in this demise, or a pro-rata portion thereof in the instance of
the recapture of less than all of the Premises), and terminate this Lease with
respect to the space being recaptured.
(c) If Landlord elects to recapture the Premises or a portion
thereof as aforesaid, then from and after the effective date thereof as approved
by Landlord, after Tenant shall have fully performed such obligations as are
enumerated herein to be performed by Tenant in connection with such recapture,
and except as to obligations and liabilities accrued and unperformed (and any
other obligations expressly stated in this Lease to survive the expiration or
sooner termination of this Lease), Tenant shall be released of and from all
lease obligations thereafter otherwise accruing with respect to the Premises (or
such lesser portion as shall have been recaptured by Landlord). The Premises, or
such portion thereof as Landlord shall have elected to recapture, shall be
delivered by Tenant to Landlord free and clear of all furniture, furnishings,
personal property and removable fixtures, with Tenant repairing and restoring
any and all damage to the Premises resulting from the installation, handling or
removal thereof, and otherwise in the same condition as Tenant is, by the terms
of this Lease, required to redeliver the Premises to Landlord upon the
expiration or sooner termination of this Lease. In the event of a sublease of
less than all the Premises, the cost of erecting any required demising walls,
entrances and entrance corridors, and any other or further improvements required
in connection therewith, including without limitation, modifications to HVAC,
electrical, plumbing, fire, life safety and security systems (if any), painting,
wallpapering and other finish items as may be acceptable to or specified by
Landlord, all of which improvements shall be made in accordance with applicable
legal requirements and Landlord's then-standard base building specifications,
shall be performed by ▇▇▇▇▇▇▇▇'s contractors, and shall be split 50% to Landlord
and 50% to Tenant. Upon the completion of any recapture and termination as
provided herein, ▇▇▇▇▇▇'s Fixed Rent, Recognized Expenses, Taxes, and any other
monetary obligations hereunder shall be adjusted pro-rated based upon the
reduced rentable square footage then comprising the Premises.
(d) If Landlord provides written notification to Tenant
electing not to recapture the Premises (or so much thereof as Tenant had
proposed to sublease), then Tenant may proceed to market the designated space
and may complete such transaction and execute an assignment of this Lease or a
sublease agreement (in each case in form acceptable to Landlord) within a period
of five (5) months next following Landlord's notice to Tenant that it declines
to recapture such space, provided that Tenant shall have first obtained in any
such case the prior written consent of Landlord to such transaction, which
consent shall not be unreasonably withheld. If, however, Tenant shall not have
assigned this Lease or sublet the Premises with Landlord's prior written consent
as aforesaid within five (5) months next following Landlord's notice to Tenant
that Landlord declines to recapture the Premises (or such portion thereof as
Tenant initially sought to sublease), then in such event, Tenant shall again be
required to request Landlord's consent to the proposed transaction, whereupon
Landlord's right to recapture the Premises (or such portion as Tenant shall
desire to sublease) shall be renewed upon the same terms and as otherwise
provided in subsection (b) above.
For purposes of this Section 12(d), and without limiting
the basis upon which Landlord may withhold its consent to any proposed
assignment or sublease, the parties agree that it shall not be unreasonable for
Landlord to withhold its consent to such assignment or sublease if: (i) the
proposed assignee or sublessee shall have a net worth which is not acceptable to
Landlord in Landlord's reasonable discretion; (ii) the proposed assignee or
sublessee shall have no reliable credit history or an unfavorable credit
history, or other reasonable evidence exists that the proposed assignee or
sublessee will experience difficulty in satisfying its financial or other
obligations under this Lease; (iii) the proposed assignee of sublessee, in
Landlord's reasonable opinion, is not reputable and of
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good character; (iv) the portion of the Premises requested to be subleased
renders the balance of the Premises unleasable as a separate area; (v) Tenant is
proposing a sublease at a rental or subrental rate which is less than the then
fair market rental rate for the portion of the Premises being subleased or
assigned, or Tenant is proposing to assign or sublease to an existing tenant of
the Buildings or another property owned by Landlord or by its partners, or to
another prospect with whom Landlord or its partners, or their affiliates are
then negotiating; (vi) the proposed assignee or sublessee will cause Landlord's
existing parking facilities to be reasonably inadequate, or in violation of code
requirements, or require Landlord to increase the parking area or the number of
parking spaces to meet code requirements, or the nature of such party's business
shall reasonably require more than the then existing ratio of parking spaces per
1,000 rentable square feet of floor space for the Buildings, or (vii) the nature
of such party's proposed business operation would or might reasonably permit or
require the use of the Premises in a manner inconsistent with the "Permitted Use
" specified herein, would or might reasonably otherwise be in conflict with
express provisions of this Lease, would or might reasonably violate the terms of
any other lease for the Buildings, or would, in Landlord's reasonable judgement,
otherwise be incompatible with other tenancies in the Buildings.
(e) Any sums or other economic consideration received by
Tenant as a result of any subletting, assignment or license (except rental or
other payments received which are attributable to the amortization of the cost
of leasehold improvements made to the sublet or assigned portion of the premises
by Tenant for subtenant or assignee, and other reasonable expenses incident to
the subletting or assignment, including standard leasing commissions) whether
denominated rentals under the sublease or otherwise, which exceed, in the
aggregate, the total sums which Tenant is obligated to pay Landlord under this
Lease (prorated to reflect obligations allocable to that portion of the premises
subject to such sublease or assignment) shall be divided evenly between Landlord
and Tenant, with ▇▇▇▇▇▇▇▇'s portion being payable to Landlord as Additional Rent
under this Lease, without affecting or reducing any other obligation of Tenant
hereunder.
(f) Regardless of ▇▇▇▇▇▇▇▇'s consent, no subletting or
assignment shall release Tenant of Tenant's obligation or alter the primary
liability of Tenant to pay the Rent and to perform all other obligations to be
performed by Tenant hereunder. The acceptance of rental by Landlord from any
other person shall not be deemed to be a waiver by Landlord of any provision
hereof. Consent to one assignment or subletting shall not be deemed consent to
any subsequent assignment or subletting. In the event of default by any assignee
of Tenant or any successor of ▇▇▇▇▇▇ in the performance of any of the terms
hereof, Landlord may proceed directly against Tenant without the necessity of
exhausting remedies against such assignee or successor.
(g) In the event that (i) the Premises or any part thereof are
sublet and Tenant is in default under this Lease, or (ii) this Lease is assigned
by Tenant, then, Landlord may collect Rent from the assignee or subtenant and
apply the net amount collected to the rent herein reserved; but no such
collection shall be deemed a waiver of the provisions of this Article 12 with
respect to assignment and subletting, or the acceptance of such assignee or
subtenant as Tenant hereunder, or a release of Tenant from further performance
of the covenants herein contained.
(h) In connection with each proposed assignment or subletting
of the Premises by ▇▇▇▇▇▇, Tenant shall pay to Landlord (i) an administrative
fee of $250 per request (including requests for Landlord Waivers) in order to
defer Landlord's administrative expenses arising from such request, plus (ii)
Landlord's reasonable attorneys' fees.
(i) Tenant may, after notice to but without the consent of
Landlord, assign this Lease to an affiliated (i.e., a corporation 50% or more of
whose capital stock is owned by the same stockholders owning 50% or more of
Tenant's capital stock), parent or subsidiary corporation of Tenant or to a
corporation to which it sells or assigns all or substantially all of its assets
or stock or with which it may be consolidated or merged, provided such
purchasing, consolidated, merged, affiliated or subsidiary corporation shall, in
writing, assume and agree to perform all of the obligations of Tenant under this
Lease, shall have a net worth at least equal to the net worth of Tenant as of
the date of this Lease, and it shall deliver such assumption with a copy of such
assignment to Landlord within ten (10) days thereafter, and provided further
that Tenant shall not be released or discharged from any liability under this
Lease by reason of such assignment.
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(j) Anything in this Article 12 to the contrary notwithstanding, no
assignment or sublease shall be permitted under this Lease if, Tenant is in
default of or has previously defaulted (even if such breach has been cured) in
connection with any of its monetary obligations under this Lease.
13. LANDLORD'S RIGHT OF ENTRY. Landlord and persons authorized by Landlord
may enter the Premises at all reasonable times upon reasonable advance notice
(except in the case of an emergency in which case no prior notice is necessary)
for the purpose of inspections, repairs, alterations to adjoining space,
appraisals, or other reasonable purposes; including enforcement of Landlord's
rights under this Lease. Landlord shall not be liable for inconvenience to or
disturbance of Tenant by reason of any such entry; provided, however, that in
the case of repairs or work, such shall be done, so far as practicable, so as to
not unreasonably interfere with ▇▇▇▇▇▇'s use of the Premises. Provided, however,
that such efforts shall not require Landlord to use overtime labor unless Tenant
shall pay for the increased costs to be incurred by Landlord for such overtime
labor. Landlord also shall have the right to enter the Premises at all
reasonable times after giving prior verbal notice to Tenant, to exhibit the
Premises to any prospective purchaser, tenant and/or mortgagee.
14. REPAIRS AND MAINTENANCE.
(a) Except as specifically otherwise provided in this Article, Tenant,
at its sole cost and expense and throughout the Term of this Lease, shall keep
and maintain the Premises in good order and condition, free of accumulation of
dirt and rubbish, and shall promptly make all non-structural repairs or
replacements necessary to keep and maintain such good order and condition, which
shall include, but not be limited to the following: interior windows, glass and
plate glass, doors, interior walls and finish work, floors and floor coverings,
lighting and electrical systems, dock boards, dock area, truck doors, dock
bumpers, dock area stairways, HVAC and mechanical systems (including fixtures
and equipment), plumbing work and fixtures, termite and pest prevention and
extermination and regular trash removal. Tenant shall have the option of
replacing lights, ballast, tubes, ceiling tiles, outlets and similar equipment
itself or it shall have the ability to advise Landlord of Tenant's desire to
have Landlord make such repairs. If requested by ▇▇▇▇▇▇, Landlord shall make
such repairs to the Premises within a reasonable time of notice to Landlord and
shall charge Tenant for such services at Landlord's standard rate (such rate to
be competitive with the market rate for such services). Tenant shall not use or
permit the use of any portion of the Premises for outdoor storage except as
approved in advance by Landlord. When used in this Article 14, the term
"repairs" shall include replacements and renewals when necessary. All repairs
made by Tenant shall utilize materials and equipment which are at least equal in
quality and usefulness to those originally used in constructing the Buildings
and the Premises.
(b) Landlord, throughout the Term of this Lease and at Landlord's sole
cost and expenses, shall make all necessary repairs to the footings and
foundations and the structural steel columns and girders forming a part of the
Premises.
(c) Tenant shall, at its expense, enter into a contract with a
certified pest control company to provide termite and pest prevention and
extermination services to the Premises and shall provide Landlord with a copy of
the fully executed contract within thirty (30) days after the Commencement Date.
Tenant shall retain copies of all prevention and extermination services provided
pursuant to such contract or otherwise and shall provide copies of all such
records to Landlord upon request.
(d) Landlord, throughout the Term of this Lease, shall make all
necessary repairs to the Buildings outside of the Premises and the common areas,
including the roof, walls, exterior portions of the Premises and the Buildings,
utility lines, equipment and other utility facilities in the Buildings, which
serve more than one tenant of the Buildings, and to any driveways, sidewalks,
curbs, parking and landscaped areas, and other exterior improvements for the
Buildings; provided, however, that Landlord shall have no responsibility to make
any repairs unless and until ▇▇▇▇▇▇▇▇ receives written notice of the need for
such repair or Landlord has actual knowledge of the need to make such repair.
Tenant shall pay (i) one hundred percent (100%) of the cost of all repairs to
the roofs of the Buildings to be performed by Landlord pursuant to this Article
14(d) and (ii) Tenant's Allocated Share of the cost of all other repairs to be
performed by Landlord pursuant to this Article 14(d) as Additional Rent as
provided in Article 6 hereof.
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(e) Landlord shall keep and maintain all common areas appurtenant to
the Buildings and any sidewalks, parking areas, curbs and access ways adjoining
the Property in a clean and orderly condition, free of accumulation of dirt,
rubbish, snow and ice, and shall keep and maintain all landscaped areas in a
neat and orderly condition. Tenant shall pay its Allocated Share of the cost of
all work to be performed by Landlord pursuant to this Article 14(e) as
Additional Rent as provided in Article 6 hereof.
(f) Notwithstanding anything herein to the contrary, repairs to the
Premises, Buildings or Project and its appurtenant common areas made necessary
by a negligent or willful act or omission of Tenant or any employee, agent,
contractor, or invitee of Tenant shall be made at the sole cost and expense of
Tenant, except to the extent of Landlord's insurance proceeds received by
Landlord therefor.
(g) If, within ten (10) business days following written notice to
Tenant, Tenant fails to (i) pay any amount to be paid by Tenant pursuant to this
Article 14 or (ii) commence any maintenance, repair or replacement to be
performed by Tenant pursuant to this Article 14 and to diligently pursue timely
completion of such maintenance, repair or replacement, Landlord may, at its
option, make such payments or cause such maintenance, repair or replacement to
be performed and, in any such event, Tenant shall reimburse Landlord upon demand
for any sums paid or costs incurred by Landlord, including reasonable attorneys'
fees and other legal expenses, together with interest at the rate of 10% per
annum from the dates of Landlord's incurring of costs or expenses.
15. INSURANCE; SUBROGATION RIGHTS.
(a) Tenant shall obtain and keep in force at all times during the term
hereof, at its own expense, comprehensive general liability insurance including
contractual liability and personal injury liability and all similar coverage,
with combined single limits of $3,000,000.00 on account of bodily injury to or
death of one or more persons as the result of any one accident or disaster and
on account of damage to property, or in such other amounts as Landlord may from
time to time require. Tenant shall also require its movers to procure and
deliver to Landlord a certificate of insurance naming landlord as an additional
insured.
(b) Tenant shall, at its sole cost and expense, maintain in full force
and effect on all Tenant's trade fixtures, equipment and personal property on
the Premises, a policy of all risk property insurance covering the full
replacement value of such property. Tenant shall also provide and keep in force,
business interruption insurance in an amount equivalent to twelve (12) months'
Rent and Additional Rent which shall not contain a deductible greater than
seventy-two (72) hours.
(c) All insurance required hereunder shall not be subject to
cancellation without at least thirty (30) days prior notice to all insureds, and
shall name Landlord, Brandywine Realty Trust, ▇▇▇▇▇▇▇▇'s Agent and Tenant as
insureds, as their interests may appear, and, if requested by Landlord, shall
also name as an additional insured any mortgagee or holder of any mortgage which
may be or become a lien upon any part of the Premises. Prior to the commencement
of the Term, Tenant shall provide Landlord with certificates which evidences
that the coverage required have been obtained and that premiums have been paid
in full for the policy periods. Tenant shall also furnish to Landlord throughout
the term hereof replacement certificates, together with evidence of like paid
premiums at least thirty (30) days prior to the expiration dates of the then
current policy or policies. All the insurance required under this Lease shall be
issued by insurance companies authorized to do business in the Commonwealth of
Virginia with a financial rating of at least an A-X as rated in the most recent
edition of Best's Insurance Reports and in business for the past five years. The
limit of any such insurance shall not limit the liability of Tenant hereunder.
If Tenant fails to procure and maintain such insurance, Landlord may, but shall
not be required to, procure and maintain the same, at ▇▇▇▇▇▇'s expense to be
reimbursed by ▇▇▇▇▇▇ as Additional Rent within ten (10) days of written demand.
Any deductible under such insurance policy or self-insured retention under such
insurance policy in excess of Twenty Thousand ($20,000) must be approved by
Landlord in writing prior to issuance of such policy. Tenant shall not
self-insure without Landlord's prior written consent. The policy limits set
forth herein shall be subject to periodic review, and Landlord reserves the
right to require that Tenant increase the
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liability coverage limits if, in the reasonable opinion of Landlord, the
coverage becomes inadequate and is less than commonly maintained by tenants of
similar buildings in the area making similar uses.
(d) Landlord shall obtain and maintain the following insurance during
the Term of this Lease: (i) replacement cost insurance including all risk perils
on the Buildings and on the Project, (ii) builder's risk insurance for the
Landlord Work to be constructed by Landlord in the Project, and (iii)
comprehensive liability insurance (including bodily injury and property damage)
covering Landlord's operations at the Project in amounts reasonably required by
the Landlord's lender or Landlord.
(e) Each party hereto, and anyone claiming through or under them by
way of subrogation, waives and releases any cause of action it might have
against the other party and Brandywine Realty Trust and their respective
employees, officers, members, partners, trustees and agents, on account of any
loss or damage that is insured against under any insurance policy required to be
obtained hereunder (to the extent that such loss or damage is recoverable under
such insurance policy) that covers the Project, Buildings or Premises,
Landlord's or Tenant's fixtures, personal property, leasehold improvements or
business and which names Landlord and Brandywine Realty Trust or Tenant, as the
case may be, as a party insured. Each party hereto agrees that it will cause its
insurance carrier to endorse all applicable policies waiving the carrier's right
of recovery under subrogation or otherwise against the other party. During any
period while such waiver of right of recovery is in effect, each party shall
look solely to the proceeds of such policies for compensation for loss, to the
extent such proceeds are paid under such policies.
16. INDEMNIFICATION.
(a) Tenant shall defend, indemnify and hold harmless Landlord,
Brandywine Realty Services Corp. and Brandywine Realty Trust and their
respective employees and agents from and against any and all third-party claims,
actions, damages, liability and expense (including all attorney's fees, expenses
and liabilities incurred in defense of any such claim or any action or
proceeding brought thereon) arising from (i) Tenant's improper use of the
Premises, (ii) the improper conduct of Tenant's business, (iii) any activity,
work or things done, permitted or suffered by Tenant or its agent, licensees or
invitees in or about the Premises or elsewhere contrary to the requirements of
the Lease, (iv) any breach or default in the performance of any obligation on
Tenant's part to be performed under the terms of this Lease, and (v) any
negligence or willful act of Tenant or any of Tenant's agents, contractors,
employees or invitees and, without limiting the generality of the foregoing,
Tenant's obligations shall include any case in which Landlord, Brandywine Realty
Services Corp. or Brandywine Realty Trust shall be made a party to any
litigation commenced by or against Tenant, its agents, subtenants, licensees,
concessionaires, contractors, customers or employees, and Tenant shall defend,
indemnify and hold harmless Landlord, Brandywine Realty Services Corp. and
Brandywine Realty Trust and shall pay all costs, expenses and reasonable
attorney's fees incurred or paid by Landlord, Brandywine Realty Services Corp.
and Brandywine Realty Trust in connection with such litigation, after notice to
Tenant and ▇▇▇▇▇▇'s refusal to defend such litigation, and upon notice from
Landlord shall defend the same at Tenant's expense by counsel satisfactory to
Landlord.
(b) Landlord shall defend, indemnify and hold harmless Tenant and its
respective employees and agents from and against any and all third-party claims,
actions, damages, liability and expense (including all attorney's fees, expenses
and liabilities incurred in defense of any such claim or any action or
proceeding brought thereon) arising from (i) Landlord's improper use of the
Premises, (ii) the improper conduct of Landlord's business, (iii) any activity,
work or things done, permitted or suffered by Landlord in or about the Premises
or elsewhere contrary to the requirements of the Lease, (iv) any breach or
default in the performance of any obligation of Landlord's part to be performed
under the terms of this Lease, and (v) any negligence or willful act of Landlord
or any of Landlord's agents, contractors, employees or invitees without limiting
the generality of the foregoing, Landlord's obligations shall include any case
in which Tenant shall be made a party to any litigation commenced by or against
Landlord, its agents, subtenants, licensees, concessionaires, contractors,
customers or employees, then Landlord shall defend, indemnify and hold harmless
Tenant and shall pay all costs, expenses and reasonable attorney's fees incurred
or paid by Tenant in connection with such litigation, after notice to Landlord
and Landlord's refusal to defend such litigation, and upon notice from Tenant
shall defend the same at Landlord's expense by counsel satisfactory to Tenant.
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17. QUIET ENJOYMENT. Provided Tenant has performed all of the terms and
conditions of this Lease, including the payment of Fixed Rent and Additional
Rent, to be performed by Tenant, Tenant shall peaceably and quietly hold and
enjoy the Premises for the Term, without hindrance from Landlord, or anyone
claiming by through or under Landlord under and subject to the terms and
conditions of this Lease and of any mortgages now or hereafter affecting all of
or any portion of the Premises.
18. FIRE DAMAGE.
(a) Except as provided below, in case of damage to the Premises by
fire or other insured casualty, Landlord shall repair the damage. Such repair
work shall be commenced promptly following notice of the damage and completed
with due diligence, taking into account the time required for Landlord to effect
a settlement with and procure insurance proceeds from the insurer, except for
delays due to governmental regulation, scarcity of or inability to obtain labor
or materials, intervening acts of God or other causes beyond Landlord's
reasonable control.
(b) Notwithstanding the foregoing, if (i) the damage is of a nature or
extent that, in Landlord's reasonable judgment (to be communicated to Tenant
within sixty (60) days from the date of the casualty), the repair and
restoration work would require more than one hundred eighty (180) consecutive
days to complete after the casualty and, assuming normal work crews not engaged
in overtime, or (ii) if more than thirty (30%) percent of the total area of the
Buildings is extensively damaged, either party shall have the right to terminate
this Lease and all the unaccrued obligations of the parties hereto, by sending
written notice of such termination to the other within ten (10) days of Tenant's
receipt of the notice from Landlord described above. Such notice is to specify a
termination date no less than fifteen (15) days after its transmission.
(c) If the insurance proceeds received by Landlord as dictated by the
terms and conditions of any financing then existing on the Buildings, (excluding
any rent insurance proceeds) would not be sufficient to pay for repairing the
damage or are required to be applied on account of any mortgage which encumbers
any part of the Premises or Buildings, or if the nature of loss is not covered
by Landlord's fire insurance coverage, Landlord may elect either to (i) repair
the damage as above provided notwithstanding such fact or (ii) terminate this
Lease by giving Tenant notice of ▇▇▇▇▇▇▇▇'s election as aforesaid.
(d) In the event Landlord has not completed restoration of the
Premises within one hundred eighty (180) days from the date of casualty (subject
to delay due to weather conditions, shortages of labor or materials or other
reasons beyond Landlord's control which delay in any event will not exceed an
additional thirty (30) business days), Tenant may terminate this Lease by
written notice to Landlord within thirty (30) business days following the
expiration of such 210 day period (as extended for reasons beyond Landlord's
control as provided above) unless, within thirty (30) business days following
receipt of such notice, Landlord has substantially completed such restoration
and delivered the Premises to Tenant for occupancy. Notwithstanding the
foregoing, in the event Tenant is responsible for the aforesaid casualty, Tenant
shall not have the right to terminate this Lease if Landlord is willing to
rebuild and restore the Premises.
(e) In the event of damage or destruction to the Premises or any part
thereof, ▇▇▇▇▇▇'s obligation to pay Fixed Rent and Additional Rent shall be
equitably adjusted or abated.
19. SUBORDINATION; RIGHTS OF MORTGAGEE.
(a) This Lease shall be subject and subordinate at all times to the
lien of any mortgages now or hereafter placed upon the Premises, Buildings
and/or Project and land of which they are a part without the necessity of any
further instrument or act on the part of Tenant to effectuate such
subordination. ▇▇▇▇▇▇ further agrees to execute and deliver upon demand such
further instrument or instruments evidencing such subordination of this Lease to
the lien of any such mortgage and such further instrument or instruments of
attornment as shall be desired by any mortgagee or proposed mortgagee or by any
other person. Notwithstanding the foregoing, any mortgagee may at any time
subordinate its mortgage to this Lease, without ▇▇▇▇▇▇'s consent, by notice in
writing to
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Tenant, and thereupon this Lease shall be deemed prior to such mortgage without
regard to their respective dates of execution and delivery and in that event
such mortgagee shall have the same rights with respect to this Lease as though
it had been executed prior to the execution and delivery of the mortgage.
(b) In the event Landlord shall be or is alleged to be in default of
any of its obligations owing to Tenant under this Lease, ▇▇▇▇▇▇ agrees to give
to the holder of any mortgage (collectively the "Mortgagee") now or hereafter
placed upon the Premises, Buildings and/or Project, notice by registered mail of
any such default which Tenant shall have served upon Landlord, provided that
prior thereto Tenant has been notified in writing (by way of Notice of
Assignment of Rents and/or Leases or otherwise in writing to Tenant) of the name
and addresses of any such Mortgagee. Tenant shall not be entitled to exercise
any right or remedy as there may be because of any default by Landlord without
having given such notice to the Mortgagee; and Tenant further agrees that if
Landlord shall fail to cure such default the Mortgagee shall have thirty (30)
additional days (measured from the later of the date on which the default should
have been cured by Landlord or the Mortgagee's receipt of such notice from
Tenant), within which to cure such default, provided that if such default be
such that the same could not be cured within such period and Mortgagee is
diligently pursuing the remedies necessary to effectuate the cure (including but
not limited to foreclosure proceedings if necessary to effectuate the cure);
then Tenant shall not exercise any right or remedy as there may be arising
because of Landlord's default, including but not limited to, termination of this
Lease as may be expressly provided for herein or available to Tenant as a matter
of law, if the Mortgagee either has cured the default within such time periods,
or as the case may be, has initiated the cure of same within such period and is
diligently pursuing the cure of same as aforesaid.
Landlord shall use its reasonable efforts to deliver a subordination,
attornment and non-disturbance agreement ("Non-disturbance Agreement") from each
future Landlord's Mortgagee, on each such mortgagee's standard form, which shall
provide, inter alia, that the leasehold estate granted to Tenant under this
Lease will not be terminated or disturbed by reason of the foreclosure of the
mortgage held by Landlord's Mortgagee, so long as Tenant shall not be in default
under this Lease and shall pay all sums due under this Lease without offsets or
defenses thereto and shall fully perform and comply with all of the terms,
covenants and conditions of this Lease on the part of Tenant to be performed
and/or complied with, and in the event a future mortgagee or its respective
successor or assigns shall enter into and lawfully become possessed of the
Premises covered by this Lease and shall succeed to the rights of Landlord
hereunder, ▇▇▇▇▇▇ will attorn to the successor as its landlord under this ▇▇▇▇▇
and, upon the request of such successor landlord, ▇▇▇▇▇▇ will execute and
deliver an attornment agreement in favor of the successor landlord. In the event
a future mortgagee shall be unwilling to enter into a Non-disturbance Agreement
as aforesaid, this Lease shall remain in full force and effect and the
obligations of Tenant shall not in any manner be affected except that, anything
to the contrary contained in this Lease notwithstanding, this Lease shall not be
subject and subordinate to such future mortgage.
20. CONDEMNATION.
(a) If more than twenty (20%) percent of the floor area of the
Premises is taken or condemned for a public or quasi-public use (a sale in lieu
of condemnation to be deemed a taking or condemnation for purposes of this
Lease), this Lease shall, at either party's option, terminate as of the date
title to the condemned real estate vests in the condemnor, and the Fixed Rent
and Additional Rent herein reserved shall be apportioned and paid in full by
Tenant to Landlord to that date and all rent prepaid for period beyond that date
shall forthwith be repaid by Landlord to Tenant and neither party shall
thereafter have any liability hereunder.
(b) If less than twenty (20%) percent of the floor area of the
Premises is taken or if neither Landlord nor Tenant have elected to terminate
this Lease pursuant to the preceding sentence, Landlord shall do such work as
may be reasonably necessary to restore the portion of the Premises not taken to
tenantable condition for Tenant's uses, but shall not be required to expend more
than the net award Landlord reasonably expects to be available for restoration
of the Premises. If Landlord determines that the damages available for
restoration of the Buildings and/or Project will not be sufficient to pay the
cost of restoration, or if the condemnation damage award is required to be
applied on account of any mortgage which encumbers any part of the Premises,
Buildings and/or Project, Landlord may terminate this Lease by giving Tenant
thirty (30) days prior notice specifying the termination date.
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(c) If this Lease is not terminated after any such taking or
condemnation, the Fixed Rent and the Additional Rent shall be equitably reduced
in proportion to the area of the Premises which has been taken for the balance
of the Term.
(d) If a part or all of the Premises shall be taken or
condemned, all compensation awarded upon such condemnation or taking shall go to
Landlord and Tenant shall have no claim thereto other than Tenant's damages
associated with moving, storage and relocation; and Tenant hereby expressly
waives, relinquishes and releases to Landlord any claim for damages or other
compensation to which Tenant might otherwise be entitled because of any such
taking or limitation of the leasehold estate hereby created, and irrevocably
assigns and transfers to Landlord any right to compensation of all or a part of
the Premises or the leasehold estate.
21. ESTOPPEL CERTIFICATE. Each party agrees at any time and from
time to time, within ten (10) business days after the other party's written
request, to execute, acknowledge and deliver to the other party a written
instrument in recordable form certifying that this Lease is unmodified and in
full force and effect (or if there have been modifications, that it is in full
force and effect as modified and stating the modifications), and the dates to
which Rent, Additional Rent, and other charges have been paid in advance, if
any, and stating whether or not to the best knowledge of the party signing such
certificate, the requesting party is in default in the performance of any
covenant, agreement or condition contained in this Lease and, if so, specifying
each such default of which the signer may have knowledge. It is intended that
any such certification and statement delivered pursuant to this Article may be
relied upon by any prospective purchaser of the Project or any mortgagee thereof
or any assignee of Landlord's interest in this Lease or of any mortgage upon the
fee of the Premises or any part thereof.
22. DEFAULT.
If:
(i) Tenant fails to pay any installment of Fixed Rent or any
amount of Additional Rent when due; provided, however, Landlord shall provide
written notice of the failure to pay such Rent and Tenant shall have a five (5)
business day grace period from its receipt of such ▇▇▇▇▇▇▇▇'s notice (facsimile
receipt being deemed to be notice hereunder) within which to pay such Rent
without creating a default hereunder. The late fee set forth in Article 5 hereof
shall be due on the first day after such payment is due irrespective of the
foregoing notice and grace period. No additional notice shall be required
thereafter and Landlord shall be entitled to immediately exercise its remedies
hereunder if payment is not received during the grace period,
(ii) Intentionally Deleted,
(iii) Tenant fails to observe or perform any of Tenant's other
non-monetary agreements or obligations herein contained within thirty (30) days
after written notice specifying the default, or the expiration of such
additional time period as is reasonably necessary to cure such default, provided
Tenant immediately commences and thereafter proceeds with all due diligence and
in good faith to cure such default,
(iv) ▇▇▇▇▇▇ makes any assignment for the benefit of
creditors,
(v) a petition is filed or any proceeding is commenced
against Tenant or by Tenant under any federal or state bankruptcy or insolvency
law and such petition or proceeding is not dismissed within thirty (30) days,
(vi) a receiver or other official is appointed for Tenant or
for a substantial part of Tenant's assets or for Tenant's interests in this
Lease,
(vii) any attachment or execution against a substantial part
of Tenant's assets or of Tenant's interests in this Lease remains unstayed or
undismissed for a period of more than ten (10) days, or
21
(viii) a substantial part of Tenant's assets or of Tenant's
interest in this Lease is taken by legal process in any action against Tenant,
then, in any such event, an Event of Default shall be deemed to exist and Tenant
shall be in default hereunder.
If an Event of Default shall occur, the following provisions shall
apply and Landlord shall have, in addition to all other rights and remedies
available at law or in equity, the rights and remedies set forth therein, which
rights and remedies may be exercised upon or at any time following the
occurrence of an Event of Default unless, prior to such exercise, Landlord shall
agree in writing with Tenant that the Event(s) of Default has been cured by
Tenant in all respects.
(a) Acceleration of Rent. By notice to Tenant, Landlord
shall have the right to accelerate all Fixed Rent and all expense installments
due hereunder and otherwise payable in installments over the remainder of the
Term, and, at Landlord's option, any other Additional Rent to the extent that
such Additional Rent can be determined and calculated to a fixed sum; and the
amount of accelerated rent to the termination date, without further notice or
demand for payment, shall be due and payable by Tenant within five (5) days
after Landlord has so notified Tenant, such amount collected from Tenant shall
be discounted to present value using an interest rate of six percent (6%) per
annum. Additional Rent which has not been included, in whole or in part, in
accelerated rent, shall be due and payable by Tenant during the remainder of the
Term, in the amounts and at the times otherwise provided for in this Lease.
Notwithstanding the foregoing or the application of any rule
of law based on election of remedies or otherwise, if Tenant fails to pay the
accelerated rent in full when due, Landlord thereafter shall have the right by
notice to Tenant, (i) to terminate Tenant's further right to possession of the
Premises and (ii) to terminate this Lease under subparagraph (b) below; and if
Tenant shall have paid part but not all of the accelerated rent, the portion
thereof attributable to the period equivalent to the part of the Term remaining
after Landlord's termination of possession or termination of this Lease shall be
applied by Landlord against Tenant's obligations owing to Landlord, as
determined by the applicable provisions of subparagraphs (c) and (d) below.
(b) Termination of Lease. By notice to Tenant, Landlord
shall have the right to terminate this Lease as of a date specified in the
notice of termination and in such case, Tenant's rights, including any based on
any option to renew, to the possession and use of the Premises shall end
absolutely as of the termination date; and this Lease shall also terminate in
all respects except for the provisions hereof regarding Landlord's damages and
▇▇▇▇▇▇'s liabilities arising prior to, out of and following the Event of Default
and the ensuing termination.
Following such termination and the notice of same provided
above (as well as upon any other termination of this Lease by expiration of the
Term or otherwise) Landlord immediately shall have the right to recover
possession of the Premises; and to that end, Landlord may enter the Premises and
take possession, without the necessity of giving Tenant any notice to quit or
any other further notice, with or without legal process or proceedings, and in
so doing Landlord may remove Tenant's property (including any improvements or
additions to the Premises which ▇▇▇▇▇▇ made, unless made with ▇▇▇▇▇▇▇▇'s consent
which expressly permitted Tenant to not remove the same upon expiration of the
Term), as well as the property of others as may be in the Premises, and make
disposition thereof in such manner as Landlord may deem to be commercially
reasonable and necessary under the circumstances.
(c) ▇▇▇▇▇▇'s Continuing Obligations/Landlord's Duty to
Mitigate.
(1) Unless and until Landlord shall have terminated
this Lease under subparagraph (b) above, Tenant shall remain fully liable and
responsible to perform all of the covenants and to observe all the conditions of
this Lease throughout the remainder of the Term to the early termination date;
and, in addition, Tenant shall pay to Landlord, upon demand and as Additional
Rent, the total sum of all costs, losses, damages and expenses, including
reasonable attorneys' fees, as Landlord incurs, directly or indirectly, because
of any Event of Default having occurred.
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(2) If Landlord either terminates Tenant's right to
possession without terminating this Lease or terminates this Lease and Tenant's
leasehold estate as above provided, then, subject to the provisions below,
Landlord shall have the duty to mitigate its damages by using commercially
reasonable efforts to relet the Premises or any part(s) thereof to such
tenant(s) on such provisions and for such period(s) as are commercially
reasonable under the particular circumstances. Landlord shall not be liable to
Tenant for its inability to mitigate damages if it shall endeavor to relet the
Premises in like manner as it offers other comparable vacant space or property
available for leasing to others in the Project of which the Buildings are a
part. If Landlord relets the Premises after such a default, the costs recovered
from Tenant shall be reallocated to take into consideration any additional rent
which Landlord receives from the new tenant which is in excess to that which was
owed by ▇▇▇▇▇▇.
(d) Landlord's Damages.
(1) The damages which Landlord shall be entitled to
recover from Tenant shall be the sum of:
(A) all Fixed Rent and Additional Rent
accrued and unpaid as of the termination date; and
(B) (i) all costs and expenses incurred by
Landlord in recovering possession of the Premises, including removal and storage
of Tenant's property, (ii) the costs and expenses of restoring the Premises to
the condition in which the same were to have been surrendered by ▇▇▇▇▇▇ as of
the expiration of the Term, and (iii) the costs of reletting commissions; and
(C) all Fixed Rent and Additional Rent (to
the extent that the amount(s) of Additional Rent has been then determined)
otherwise payable by Tenant over the remainder of the Term as reduced to present
value.
Provided Landlord shall deduct from the total determined under subparagraphs
(A), (B) and (C) all Rent and all other Additional Rent to the extent
determinable as aforesaid, (to the extent that like charges would have been
payable by Tenant) which ▇▇▇▇▇▇▇▇ receives from other tenant(s) by reason of the
leasing of the Premises or part during or attributable to any period falling
within the otherwise remainder of the Term.
(2) The damage sums payable by Tenant under the
preceding provisions of this paragraph (d) shall be payable on demand from time
to time as the amounts are determined; and if from Landlord's subsequent receipt
of rent as aforesaid from reletting, there be any excess payment(s) by Tenant by
reason of the crediting of such rent thereafter received, the excess payment(s)
shall be refunded by Landlord to Tenant, without interest.
(3) Landlord may distrain for rent, and enforce the
provisions of this Lease and may enforce and protect the rights of Landlord
hereunder by a suit or suits in equity or at law for the specific performance of
any covenant or agreement contained herein, and for the enforcement of any other
appropriate legal or equitable remedy, including, without limitation, injunctive
relief, and for recovery of all moneys due or to become due from Tenant under
any of the provisions of this Lease.
(e) Landlord's Right to Cure. Without limiting the
generality of the foregoing, if Tenant shall be in default in the performance of
any of its obligations hereunder, Landlord, without being required to give
Tenant any notice or opportunity to cure, may (but shall not be obligated to do
so), in addition to any other rights it may have in law or in equity, cure such
default on behalf of Tenant, and Tenant shall reimburse Landlord upon demand for
any sums paid or costs incurred by Landlord in curing such default, including
reasonable attorneys' fees and other legal expenses, together with interest at
10% per annum Rate from the dates of Landlord's incurring of costs or expenses.
Tenant further waives the right to any notices to quit as may
be specified by law, and agrees that five (5) days notice shall be sufficient in
any case where a longer period may be statutorily specified.
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(f) Interest on Damage Amounts. Any sums payable by Tenant
hereunder, which are not paid after the same shall be due, shall bear interest
from that day until paid at the rate of four (4%) percent over the then Prime
Rate as published daily under the heading "Money Rates" in The Wall Street
Journal, unless such rate be usurious as applied to Tenant, in which case the
highest permitted legal rate shall apply (the "Default Rate").
(g) Landlord's Statutory Rights. Landlord shall have all
rights and remedies now or hereafter existing at law or in equity with respect
to the enforcement of Tenant's obligations hereunder and the recovery of the
Premises. No right or remedy herein conferred upon or reserved to Landlord shall
be exclusive of any other right or remedy, but shall be cumulative and in
addition to all other rights and remedies given hereunder or now or hereafter
existing at law. Landlord shall be entitled to injunctive relief in case of the
violation, or attempted or threatened violation, of any covenant, agreement,
condition or provision of this Lease, or to a decree compelling performance of
any covenant, agreement, condition or provision of this Lease.
(h) Remedies Not Limited. Nothing herein contained shall limit
or prejudice the right of Landlord to exercise any or all rights and remedies
available to Landlord by reason of default or to prove for and obtain in
proceedings under any bankruptcy or insolvency laws, an amount equal to the
maximum allowed by any law in effect at the time when, and governing the
proceedings in which, the damages are to be proved, whether or not the amount be
greater, equal to, or less than the amount of the loss or damage referred to
above.
(i) No Waiver by Landlord. No delay or forbearance by Landlord
in exercising any right or remedy hereunder, or ▇▇▇▇▇▇▇▇'s undertaking or
performing any act or matter which is not expressly required to be undertaken by
Landlord shall be construed, respectively, to be a waiver of Landlord's rights
or to represent any agreement by Landlord to undertake or perform such act or
matter thereafter. Waiver by Landlord of any breach by Tenant of any covenant or
condition herein contained (which waiver shall be effective only if so expressed
in writing by Landlord) or failure by Landlord to exercise any right or remedy
in respect of any such breach shall not constitute a waiver or relinquishment
for the future of Landlord's right to have any such covenant or condition duly
performed or observed by ▇▇▇▇▇▇, or of Landlord's rights arising because of any
subsequent breach of any such covenant or condition nor bar any right or remedy
of Landlord in respect of such breach or any subsequent breach. ▇▇▇▇▇▇▇▇'s
receipt and acceptance of any payment from Tenant which is tendered not in
conformity with the provisions of this Lease or following an Event of Default
(regardless of any endorsement or notation on any check or any statement in any
letter accompanying any payment) shall not operate as an accord and satisfaction
or a waiver of the right of Landlord to recover any payments then owing by
Tenant which are not paid in full, or act as a bar to the termination of this
Lease and the recovery of the Premises because of Tenant's previous default.
23. INTENTIONALLY DELETED
24. LANDLORD'S REPRESENTATIONS AND WARRANTIES. Landlord represents
and warrants to Tenant that: (a) Landlord is the fee owner of the Buildings and
the Project; and (b) Landlord has the authority to enter into this Lease.
25. SURRENDER. Tenant shall, at the expiration of the Term,
promptly quit and surrender the Premises in good order and condition and in
conformity with the applicable provisions of this Lease including, without
limitation the provisions of Article 10 regarding restoration of the Premises,
excepting only reasonable wear and tear and damage by fire or other insured
casualty. Tenant shall have no right to hold over beyond the expiration of the
Term and in the event Tenant shall fail to deliver possession of the Premises as
herein provided, such occupancy shall not be construed to effect or constitute
other than a tenancy at sufferance. During any period of occupancy beyond the
expiration of the Term the amount of rent owed to Landlord by Tenant shall
automatically become one hundred fifty percent (150%) the sum of the Rent as
those sums are at that time calculated under the provisions of the Lease. If
▇▇▇▇▇▇ fails to surrender the space within thirty (30) days of the termination
date, Landlord may elect to automatically extend the Term for an additional
month or additional year, at Landlord's option, with a Rent of one hundred fifty
percent (150%) the sum of the Rent as those sums are at that time calculated
under the provisions of the Lease. The acceptance of rent by Landlord or the
failure or delay of Landlord in notifying or evicting Tenant following the
expiration or sooner termination of the Term shall not create any tenancy
24
rights in Tenant and any such payments by Tenant may be applied by Landlord
against its costs and expenses, including attorney's fees incurred by Landlord
as a result of such holdover.
26. RULES AND REGULATIONS. Tenant agrees that at all times during the
terms of this Lease (as same may be extended) it, its employees, agents,
invitees and licenses shall comply with all rules and regulations specified on
Exhibit "C" attached hereto and made a part hereof, together with all reasonable
Rules and Regulations as Landlord may from time to time promulgate provided they
do not increase the financial burdens of Tenant or unreasonably restrict
Tenant's rights under this Lease. Tenant's right to dispute the reasonableness
of any changes in or additions to the Rules and Regulations shall be deemed
waived unless asserted to Landlord within ten (10) business days after Landlord
shall have given Tenant written notice of any such adoption or change. In case
of any conflict or inconsistency between the provisions of this Lease and any
Rules and Regulations, the provisions of this Lease shall control. Landlord
shall have no duty or obligation to enforce any Rule and Regulation, or any
term, covenant or condition of any other lease, against any other tenant, and
Landlord's failure or refusal to enforce any Rule or Regulation or any term,
covenant of condition of any other lease against any other tenant shall be
without liability of Landlord to Tenant. However, if Landlord does enforce Rules
or Regulations, Landlord shall endeavor to enforce same equally in a
non-discriminatory manner.
27. GOVERNMENTAL REGULATIONS.
(a) Tenant shall, in the use and occupancy of the Premises and the
conduct of Tenant's business or profession therein, at all times comply with
all applicable laws, ordinances, orders, notices, rules and regulations of the
federal, state and municipal governments, or any of their departments and the
regulations of the insurers of the Premises, Buildings and/or Project.
(b) Without limiting the generality of the foregoing, Tenant shall
(i) obtain, at Tenant's expense, before engaging in Tenant's business or
profession within the Premises, all necessary licenses and permits including
(but not limited to) state and local business licenses or permits, and (ii)
remain in compliance with and keep in full force and effect at all times all
licenses, consents and permits necessary for the lawful conduct of Tenant's
business or profession at the Premises. Tenant shall pay all personal property
taxes, income taxes and other taxes, assessments, duties, impositions and
similar charges which are or may be assessed, levied or imposed upon Tenant and
which, if not paid, could be liened against the Premises or against ▇▇▇▇▇▇'s
property therein or against ▇▇▇▇▇▇'s leasehold estate.
(c) Landlord shall be responsible for compliance with Title III of
the Americans with Disabilities Act of l990, 42 U.S.C. (S)12181 et seq. and its
regulations, (collectively, the "ADA") (i) as to the design and construction of
exterior common areas (e.g. sidewalks and parking areas) and (ii) with respect
to the initial design and construction by Landlord of Landlord's Work (as
defined in Article 4 hereof). Except as set forth above in the initial sentence
hereto, Tenant shall be responsible for compliance with the ADA in all other
respects concerning the use and occupancy of the Premises, which compliance
shall include, without limitation (i) provision for full and equal enjoyment of
the goods, services, facilities, privileges, advantages or accommodations of the
Premises as contemplated by and to the extent required by the ADA, (ii)
compliance relating to requirements under the ADA or amendments thereto arising
after the date of this Lease and (iii) compliance relating to the design,
layout, renovation, redecorating, refurbishment, alteration, or improvement to
the Premises made or requested by Tenant at any time following completion of the
Landlord's Work.
28. NOTICES. Wherever in this Lease it shall be required or permitted
that notice or demand be given or served by either party to this Lease to or on
the other party, such notice or demand shall be deemed to have been duly given
or served if in writing and either: (i) personally served; (ii) delivered by
pre-paid nationally recognized overnight courier service (e.g. Federal Express)
with evidence of receipt required for delivery; or (iii) forwarded by Registered
or Certified mail, return receipt requested, postage prepaid; in all such cases
addressed to the parties at the addresses set forth in Article 1(l) hereof. Each
such notice shall be deemed to have been given to or served upon the party to
which addressed on the date the same is delivered or delivery is refused. Either
party hereto may change its address to which said notice shall be delivered or
mailed by giving written notice of such change to the other party hereto, as
herein provided.
25
29. BROKERS. Tenant represents and warrants to Landlord that ▇▇▇▇▇▇ has
had no dealings, negotiations or consultations with respect to the Premises or
this transaction with any broker or finder other than the Broker identified in
Article 1(k); and that otherwise no broker or finder called the Premises to
Tenant's attention for lease or took any part in any dealings, negotiations or
consultations with respect to the Premises or this Lease. Tenant shall be
responsible for all commissions or other compensation due to the Broker
identified in Article 1(k) in connection with this Lease. ▇▇▇▇▇▇ agrees to
indemnify and hold Landlord harmless from and against all liability, cost and
expense, including attorney's fees and court costs, arising out of any
misrepresentation or breach of warranty or covenant under this Article.
30. CHANGE OF BUILDING/PROJECT NAMES. Landlord reserves the right at
any time and from time to time to change the name by which the Buildings and/or
Project are designated. ▇▇▇▇▇▇▇▇ agrees to pay for the reasonably documented
costs of stationery charges (including letterhead and cards) necessitated by any
such name change, such cost not to exceed $2,500.
31. LANDLORD'S LIABILITY. Landlord's obligations hereunder shall be
binding upon Landlord only for the period of time that Landlord is in ownership
of the Buildings; and, upon termination of that ownership, Tenant, except as to
any obligations which are then due and owing, shall look solely to Landlord's
successor in interest in the Buildings for the satisfaction of each and every
obligation of Landlord hereunder. Landlord shall have no personal liability
under any of the terms, conditions or covenants of this Lease and Tenant shall
look solely to the equity of Landlord in the Buildings of which the Premises
form a part for the satisfaction of any claim, remedy or cause of action
accruing to Tenant as a result of the breach of any section of this Lease by
Landlord. In addition to the foregoing, no recourse shall be had for an
obligation of Landlord hereunder, or for any claim based thereon or otherwise in
respect thereof, against any past, present or future trustee, member, partner,
shareholder, officer, director, partner, agent or employee of Landlord, whether
by virtue of any statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise, all such other liability being expressly waived and
released by Tenant with respect to the above-named individuals and entities.
32. AUTHORITY. Tenant represents and warrants that (a) Tenant is duly
organized, validly existing and legally authorized to do business in the
Commonwealth of Virginia, and (b) the persons executing this Lease are duly
authorized to execute and deliver this Lease on behalf of Tenant.
33. NO OFFER. The submission of the Lease by Landlord to Tenant for
examination does not constitute a reservation of or option for the Premises or
of any other space within the Buildings or in other buildings owned or managed
by Landlord or its affiliates. This Lease shall become effective as a Lease only
upon the execution and legal delivery thereof by both parties hereto.
34. RIGHT OF EXPANSION. Landlord shall notify Tenant from time to time
of changes in the availability of Suites L, M and N of the ▇▇▇▇▇▇ VII Building
and, subject to (a) Tenant not being in default now nor Tenant ever having been
in default under this Lease; and (b) the rights of other tenants within the
▇▇▇▇▇▇ VII Building from time to time, and subject to such limitations as are
imposed by other tenant leases, if requested by ▇▇▇▇▇▇, Landlord shall propose
to Tenant the basic economic terms upon which Landlord would be prepared to
entertain the negotiation of a new lease for such space (on all of the same
terms and conditions as are set forth in this Lease, except as otherwise
specified by Landlord) or an amendment to this Lease with which the parties
would add such space to the description of the "Premises" in either case for a
term which would be coterminous with this Lease unless otherwise specified by
Landlord. The economic terms of any such proposal shall include the estimated
date that the space shall be available for delivery, the Base Rent and the
tenant allowance (if any) to be furnished to Tenant, whereupon Tenant shall have
thirty (30) days next following Landlord's delivery of such notice within which
to accept such terms, time being of the essence. Should Tenant accept such terms
as are specified by Landlord, the parties shall negotiate the terms of a new
lease, or an amendment to this Lease, to memorialize their agreement. In the
absence of any further agreement by the parties, such additional space shall be
delivered in "AS -IS" condition, and Rent for such additional space shall
commence on that date which is the earlier of: (x) Tenant's occupancy thereof,
and (y) five (5) days after Landlord delivers such additional space to Tenant
free of other tenants and occupants. If Tenant shall not accept Landlord's terms
within such thirty (30) day period, or if the parties shall
26
not have executed and delivered a mutually satisfactory new lease or lease
amendment within forty-five (45) days next following Landlord's original notice
under this Article 36, then ▇▇▇▇▇▇'s rights to lease such space shall lapse and
terminate, and Landlord may, at its discretion, lease such space on such terms
and conditions as Landlord shall determine. Tenant's rights hereunder shall not
include the right to lease less than all of the space identified in Landlord's
notice.
Anything herein contained to the contrary notwithstanding, Landlord may
at any time modify or extend any existing or future tenant lease, or choose to
use any space that is or about to become vacant within the ▇▇▇▇▇▇ VII Building
for marketing or property management purposes, without in any such case
notifying or offering such space to Tenant, or giving rise to any right of
Tenant hereunder. Nothing contained in this Article 36 is intended nor may
anything herein be relied upon by ▇▇▇▇▇▇ as a representation by Landlord as to
the availability of expansion space within the ▇▇▇▇▇▇ VII Building at any time.
Tenant's rights hereunder shall continue throughout the term hereof provided and
for so long as Tenant shall be free from default hereunder, and provided,
further, that the Tenant first-above named (or its assignee under Article 12 (e)
or (f ) above) shall continuously remain in occupancy of not less than seventy
five (75%) of the Premises originally demised hereunder.
35. INTENTIONALLY DELETED.
36. MISCELLANEOUS PROVISIONS.
A. Successors. The respective rights and obligations provided
in this Lease shall bind and inure to the benefit of the parties hereto, their
successors and assigns; provided, however, that no rights shall inure to the
benefit of any successors of Tenant unless ▇▇▇▇▇▇▇▇'s written consent for the
transfer to such successor and/or assignee has first been obtained as provided
in Article 12 hereof.
B. Governing Law. This Lease shall be construed, governed and
enforced in accordance with the laws of the Commonwealth of Virginia, without
regard to principles relating to conflicts of law.
C. Severability. If any provisions of this Lease shall be held
to be invalid, void or unenforceable, the remaining provisions hereof shall in
no way be affected or impaired and such remaining provisions shall remain in
full force and effect.
D. Captions. Marginal captions, titles or exhibits and riders
and the table of contents in this Lease are for convenience and reference only,
and are in no way to be construed as defining, limiting or modifying the scope
or intent of the various provisions of this Lease.
E. Gender. As used in this Lease, the word "person" shall mean
and include, where appropriate, an individual, corporation, partnership or other
entity; the plural shall be substituted for the singular, and the singular for
the plural, where appropriate; and the words of any gender shall mean to include
any other gender.
F. Entire Agreement. This Lease, including the Exhibits and
any Riders hereto (which are hereby incorporated by this reference, except that
in the event of any conflict between the printed portions of this Lease and any
Exhibits or Riders, the term of such Exhibits or Riders shall control),
supersedes any prior discussions, proposals, negotiations and discussions
between the parties and the Lease contains all the agreements, conditions,
understandings, representations and warranties made between the parties hereto
with respect to the subject matter hereof, and may not be modified orally or in
any manner other than by an agreement in writing signed by both parties hereto
or their respective successors in interest. Without in any way limiting the
generality of the foregoing, this Lease can only be extended pursuant to the
terms hereof, and in Tenant's case, with the terms hereof, and in Tenant's case,
with the due exercise of an option (if any) contained herein or a formal
agreement signed by both Landlord and Tenant specifically extending the term. No
negotiations, correspondence by ▇▇▇▇▇▇▇▇ or offers to extend the term shall be
deemed an extension of the termination date for any period whatsoever.
27
G. Counterparts. This Lease may be executed in any number of
counterparts, each of which when taken together shall be deemed to be one and
the same instrument.
H. Telefax Signatures. The parties acknowledge and agree that
notwithstanding any law or presumption to the contrary a telefaxed signature of
either party whether upon this Lease or any related document shall be deemed
valid and binding and admissible by either party against the other as if same
were an original ink signature.
I. Calculation of Time. In computing any period of time
prescribed or allowed by any provision of this Lease, the day of the act, event
or default from which the designated period of time begins to run shall not be
included. The last day of the period so computed shall be included, unless it is
a Saturday, Sunday or a legal holiday, in which event the period runs until the
end of the next day which is not a Saturday, Sunday, or legal holiday. Unless
otherwise provided herein, all Notices and other periods expire as of 5:00 p.m.
(local time in Newtown Square, Pennsylvania) on the last day of the Notice or
other period.
J. No Merger. There shall be no merger of this Lease or of the
leasehold estate hereby created with the fee estate in the Premises or any part
thereof by reason of the fact that the same person, firm, corporation, or other
legal entity may acquire or hold, directly or indirectly, this Lease of the
leasehold estate and the fee estate in the Premises or any interest in such fee
estate, without the prior written consent of Landlord's mortgagee.
K. Time of the Essence. TIME IS OF THE ESSENCE IN ALL
PROVISIONS OF THIS LEASE, INCLUDING ALL NOTICE PROVISIONS TO BE PERFORMED BY OR
ON BEHALF OF TENANT.
L. Recordation of Lease. At the request of either Landlord or
Tenant, Landlord and Tenant shall execute and record a short form memorandum
pursuant to Section 55-57.1 of the Code of Virginia in form sufficient for
recordation in the public land records to give notice of the rights of Landlord
and Tenant under this Lease (the "Memorandum of Lease"). The cost of
preparation, review and recording of the Memorandum of Lease shall be paid by
the requesting party, including reasonable attorney's fees. In connection with
the execution of the Memorandum of Lease, Landlord and Tenant shall
simultaneously execute a release of the Memorandum of Lease which shall be held
in escrow by Landlord and which Landlord shall be authorized to record upon the
expiration or termination of this Lease.
M. Accord and Satisfaction. No payment by Tenant or receipt by
Landlord of a lesser amount than any payment of Fixed Rent or Additional Rent
herein stipulated shall be deemed to be other than on account of the earliest
stipulated Fixed Rent or Additional Rent due and payable hereunder, nor shall
any endorsement or statement or any check or any letter accompanying any check
or payment as Rent be deemed an accord and satisfaction. Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such Rent or pursue any other right or remedy provided for in this
Lease, at law or in equity.
N. No Partnership. Landlord does not, in any way or for any
purpose, become a partner of Tenant in the conduct of its business, or
otherwise, or joint venturer or a member of a joint enterprise with Tenant. This
Lease establishes a relationship solely of that of a landlord and tenant.
O. Intentionally Deleted.
P. No Presumption Against Drafter. Landlord and Tenant
understand, agree, and acknowledge that: (i) this Lease has been freely
negotiated by both parties; and (ii) that, in the event of any controversy,
dispute, or contest over the meaning, interpretation, validity, or
enforceability of this Lease, or any of its terms or conditions, there shall be
no inference, presumption, or conclusion drawn whatsoever against either party
by virtue of that party having drafted this Lease or any portion thereof.
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Q. Force Majeure. If by reason of strikes or other labor
disputes, fire or other casualty (or reasonable delays in adjustment of
insurance), accidents, orders or regulations of any Federal, State, County or
Municipal authority, or any other cause beyond Landlord's reasonable control,
Landlord is unable to furnish or is delayed in furnishing any utility or service
required to be furnished by Landlord under the provisions of this Lease or is
unable to perform or make or is delayed in performing or making any
installations, decorations, repairs, alterations, additions or improvements, or
is unable to fulfill or is delayed in fulfilling any of Landlord's other
obligations under this Lease, no such inability or delay shall constitute an
actual or constructive eviction, in whole or in part, or entitle Tenant to any
abatement or diminution of Fixed Rent, or relieve Tenant from any of its
obligations under this Lease, or impose any liability upon Landlord or its
agents, by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's business, or otherwise.
R. Agreement to Execute Separate Leases. If Landlord
determines that it is necessary or desirable for the lease of the Premises
located in any of the ▇▇▇▇▇▇ A-1 Building or the ▇▇▇▇▇▇ A-2 Building or the
▇▇▇▇▇▇ VII Building to be addressed in separate lease agreements, Tenant agrees
to amend and restate this Lease in one or more separate lease agreements
provided that such amended and restated lease agreements do not modify the
substantive provisions of this Lease.
37. WAIVER OF TRIAL BY JURY. LANDLORD AND TENANT WAIVE THE RIGHT
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THE
SUBJECT MATTER OF THIS LEASE. THIS WAIVER IS KNOWINGLY, INTENTIONALLY, AND
VOLUNTARILY MADE BY TENANT AND TENANT ACKNOWLEDGES THAT NEITHER LANDLORD NOR ANY
PERSON ACTING ON BEHALF OF LANDLORD HAS MADE ANY REPRESENTATIONS OF FACT TO
INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS
EFFECT. TENANT FURTHER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED (OR HAS HAD THE
OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS LEASE AND IN THE MAKING OF
THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN FREE WILL, AND
THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. TENANT
FURTHER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THE MEANING AND
RAMIFICATIONS OF THIS WAIVER PROVISION AND AS EVIDENCE OF SAME HAS EXECUTED THIS
LEASE.
38. CONSENT TO JURISDICTION. Tenant hereby consents to the
exclusive jurisdiction of the state courts located in the jurisdiction where the
Premises are located and to the federal courts located in the Eastern District
of Virginia.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Lease under
seal the day and year first above written.
WITNESS: LANDLORD:
BRANDYWINE GRANDE C, L.P.
By: Brandywine Grande C Corp.,
its general partner
/s/ ▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------- ----------------------
Name: ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------
Title: Vice President
---------------
WITNESS: TENANT:
PPD DEVELOPMENT, LLC
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------- --------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------
Title: President and CEO
-----------------
30