EXHIBIT 10.1
RADNOR TECHNOLOGY AND RESEARCH CENTER
OFFICE AND CAFETERIA LEASE
THIS OFFICE AND CAFETERIA LEASE (the "Lease") is made this 21st day of
June, 2002 by and between RADNOR PROPERTIES-145 KOP, L.P., a Delaware limited
partnership (hereinafter called "Landlord"), and CENTOCOR, INC., a Pennsylvania
corporation (hereinafter called "Tenant").
1. DEMISED PREMISES; USE.
1.1. LETTING AND DEMISED PREMISES; USE. Landlord, for the term and
subject to the provisions and conditions hereof, leases to Tenant, and Tenant
rents from Landlord, the space (hereinafter referred to as the "Demised
Premises" and more particularly delineated on the floor plan attached hereto as
Exhibit "A" and made a part hereof) being, for purposes of the provisions hereof
21,500 rentable square feet, located on the first (1st) floor of the building
(hereinafter referred to as the "Building") known as the Building I of Radnor
Technology and Research Center, or such other name as Landlord may from time to
time designate, located at ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, a legal description of the land (the "Land") which
is attached hereto as Exhibit "B", to be used by Tenant only (i) to operate a
first class cafeteria for the use of Tenant's employees, invitees and visitors,
and (ii) for general office and associated incidental uses ("Permitted Use") and
for no other purpose without the prior written consent of Landlord. Tenant
shall, at its sole cost and expense, obtain and maintain all approvals, permits,
licenses or authorizations of any nature required in connection with the
operation of Tenant's business specific to the Demised Premises. Landlord makes
no representation that the Demised Premises are consistent with applicable
Governmental Requirements (as defined below) for Tenant's business or are
suitable for Tenant's business. Tenant shall comply with all laws relating to
the Demised Premises and Tenant's use, occupancy and operation thereof,
including, without limitation, (i) health, safety and building codes, and any
permit or license requirements, and (ii) any Governmental Requirements. In
connection with the foregoing, Tenant, at Tenant's own cost, shall be obligated
to secure and obtain all required permits, approvals and licenses for or with
respect to the design, build out and operation of the Demised Premises,
including, but not limited to any approval or permit requirements of the
Pennsylvania Department of Health, Pennsylvania Licenses and Inspections or the
Radnor Zoning Department and Tenant shall be obligated to keep in force and
renew all thereof before the same, or any of them, shall expire. Prior to
commencing business in the Demised Premises, Tenant shall provide copies of all
such permits, approvals and licenses to Landlord.
1.1.1. Tenant shall not use or occupy or permit anything to be done
in or on the Demised Premises or the Center, in whole or in part, in a manner
which would in any way violate any certificate of occupancy affecting the
Demised Premises, make void or voidable any insurance then in force with respect
thereto, or which may make it more costly or impossible to obtain fire or other
insurance thereon, cause structural or other material injury to the Building or
any part thereof, constitute a public or private nuisance, or which may violate
any present or future, ordinary or extraordinary Governmental Requirements.
1.1.2. Tenant shall operate and conduct the Permitted Use at all
times in a first class, professional and businesslike manner consistent with
reputable business, health, industry, and safety standards and practices, and
Tenant shall at all times keep the Demised Premises in a neat, clean and orderly
manner so as to not adversely affect the ordinary operation of the Building or
the Center as first class office and laboratory buildings, or the use or
enjoyment thereof by other tenants and/or occupants of the Building or the
Center. Without limiting the generality of the foregoing, Tenant shall be
responsible to keep the Demised Premises free from insects, vermin, and other
pests and shall be responsible for the removal of insects, vermin, and other
pests in the Demised Premises as well as other parts of the Building and/or
Center resulting from the activities of Tenant. Except as permitted herein,
Tenant shall not place or maintain any permanent or temporary fixture or item or
display any merchandise outside the Demised Premises, and Tenant shall not
obstruct the window areas (other than with seasonable or holiday decorations)
without Landlord's prior written approval, which may be given or withheld in
Landlord's sole discretion. All racks, stands, displays of merchandise, and
other items shall be attractive, tasteful and professional, and all items
visible from the entrance lobby of the Building or the exterior of the Building
shall be subject to Landlord's continuing approval and direction for purposes of
having a first class office lobby, building exterior and restaurant appearance
as determined in Landlord's sole reasonable discretion.
1.1.3. Tenant agrees that no music of any kind or nature, whether
live or recorded, from any source or place, will be played so as to be audible
outside of the Demised Premises. Tenant shall operate the Demised Premises so
that there shall be no odors of any kind or nature emanating from or noticeable
outside the Demised Premises and any such odors inside the Demised Premises
shall be subject to Landlord's continuing approval.
1.1.4. Tenant shall be responsible for cleaning the Demised
Premises, including, without limitation all restrooms within the Demised
Premises, and for cleaning, maintaining and repairing any kitchen hoods, exhaust
fans, and air handling units within the Demised Premises.
1.1.5. Tenant shall replace all broken or damaged plate glass in, on
or about the Demised Premises caused by Tenant, its agents, employees, invitees
or any other person using the Demised Premises with Tenant's consent, express or
implied.
1.1.6. Tenant shall not burn or place garbage, rubbish, trash,
merchandise containers or other incidentals to the business outside the Demised
Premises.
1.1.7. Tenant shall participate in any reasonable window cleaning
and exterminating programs (including, without limitation, using Landlord's
designated exterminator) that may be established by Landlord for the Building.
1.2. RADNOR TECHNOLOGY AND RESEARCH CENTER. Radnor Technology and
Research Center consists of approximately 18.924 acres of ground and certain
buildings and other improvements thereon, all located at or about 145 King of
Prussia Road, in Radnor Township, Delaware County, Pennsylvania (the "Center").
Landlord reserves the right, in its sole discretion, at any time and from time
to time, to expand and/or reduce the amount of ground and/or improvements of
which the Center consists, provided such expansion or reduction shall not
materially affect Tenant's Permitted Use of the Building.
-2-
1.3. COMMON FACILITIES. Tenant and its agents, employees and
invitees, shall have the right to use, in common with all others granted such
rights by Landlord, in a proper and lawful manner, the common sidewalks and
other outdoor areas within the Center, the parking areas surrounding the
Building, the common entranceways and lobbies furnishing access to the Demised
Premises, and (if the Demised Premises includes less than a full floor) the
common lobbies, hallways and toilet rooms on the floor on which the Demised
Premises is located. Such use shall be subject to the terms of this Lease and to
such reasonable rules and regulations as Landlord may from time to time
prescribe with respect thereto, including, without limitation, the reservation
of any particular parking spaces or parking areas for the exclusive use of other
tenants of the Center.
1.4. RENTABLE SQUARE FEET. Tenant understands, acknowledges and
agrees (i) that the amount of rentable square feet set forth in Paragraph 1.1
above is calculated based on certain assumptions, and (ii) that such amount of
rentable square feet is hereby accepted by Tenant for all purposes of this
Lease, including, without limitation, for purposes of determining minimum rent,
Tenant's Proportionate Share of applicable items of Taxes and Operating Expenses
and other items which are based upon the computation of square footage.
1.5. USE OF PARKING FACILITIES. Subject to the other provisions of
this Lease, and excluding those parking spaces designated by Landlord as being
reserved, Tenant shall have free non-exclusive use, in common with all other
tenants, licensees, and invitees of the Center, of the surface parking spaces in
the Center ("Non-Reserved Spaces"), for Tenant, Tenant's employees, Tenant's
business invitees and Tenant's agents, each day of the week; provided, however,
that at no time during any day during the term of this Lease shall the number of
Non-Reserved Spaces actually occupied by Tenant, Tenant's employees, business
invitees and agents exceed forty-three (43) spaces (such figure being a maximum
number of spaces which may be utilized by or for Tenant at any one time, but
Landlord does not represent or guarantee that such number of spaces will in fact
be available at any one time at the Center for Tenant's use). Notwithstanding
the foregoing, ten (10) of the forty-three (43) spaces referenced in the
foregoing sentence shall be designated by Landlord for Tenant's exclusive use,
such designated spaces to be reasonably accessible to the main visitor entrance
of the Demised Premises. Tenant shall not park any trucks or any delivery
vehicles in the parking areas or driveways, except as specifically designated by
Landlord from time to time, and shall confine all truck parking, loading and
unloading to times and locations specifically designated by Landlord from time
to time. Tenant shall require all trucks servicing Tenant to be promptly loaded
or unloaded and removed from the site. Landlord hereby reserves the exclusive
right with respect to the use of parking facilities, roadways, sidewalks,
driveways, islands and walkways for advertising purposes. Tenant covenants and
agrees to enforce the provisions of this Lease against Tenant's employees and
business invitees. Landlord may from time to time circulate parking stickers for
the purpose of identifying motor vehicles of Tenant and Tenant's employees
and/or circulate validation tickets for the purpose of identifying Tenant's
business invitees. Landlord shall have the right, but not the obligation: (a) to
police said parking facilities, (b) to provide parking attendants, (c) to cause
unauthorized and/or unregistered motor vehicles (but only upon 48 hours verbal
or written notice to Tenant for first time offenders) to be towed away at the
sole risk and expense of the owner of such motor vehicles, (d) to designate
certain areas of the parking facilities for the exclusive use of motor vehicles
having handicapped designations on their license plates and/or for the exclusive
use of visitors to the Center, (e) to use any portion of the parking facilities
from time to
-3-
time and/or to deny access to the same temporarily in order to repair, maintain
or restore such facilities or to construct improvements under, over, along,
across and upon the same for the benefit of the site and to grant easements in
the parking facilities to any authorities, (f) to adopt and modify from time to
time rules and regulations for parking and vehicular ingress, egress, speed, no
parking, no standing, and for times and places for move-in, move-out and
deliveries, (g) to designate fire lanes, loading zones and restricted parking
from time to time and to tow violators immediately with no notice and (h) to
designate from time to time specific areas for the parking of Tenant's employees
cars. Landlord shall use commercially reasonable efforts to insure that the
rules and regulations promulgated by Landlord will be enforced in a
non-discriminatory manner.
2. TERM; COMMENCEMENT.
2.1. DURATION. The term of this Lease shall commence (the
"Commencement Date") on the delivery to Tenant of a fully executed Lease on
which date the Demised Premises shall be delivered to Tenant and unless extended
or sooner terminated as herein provided, the initial term of this Lease shall
continue until, and shall expire on March 31, 2007. Notwithstanding anything
contained in this Lease to the contrary, if that certain Radnor Technology and
Research Center Lease, dated March 8, 2002 (the "Research Building Lease"),
whereby Landlord leased to Tenant and Tenant leased from Landlord the space
containing 135,125 rentable square feet located on the court level and third
(3rd) and fourth (4th) floors of the research building (the "Research Building")
which is located within the Center, is terminated, this Lease shall terminate on
the same date as of the date of termination of the Research Building Lease.
2.2. CONDITION OF THE DEMISED PREMISES. Within thirty (30) days
after the Commencement Date, Landlord will construct a Building Standard
demising wall in the location of the Demised Premises identified on the plan
attached hereto as Exhibit "I". Tenant acknowledges that Tenant has had the
opportunity to examine the Demised Premises prior to the execution of this
Lease. Other than Landlord's obligation to construct the aforementioned demising
walls, Tenant agrees to accept the Demised Premises on the Commencement Date in
its then "AS IS WHERE IS" condition without any obligation on the part of
Landlord to perform any work. Tenant shall, at Tenant's expense, install a
Landlord approved sprinkler system in the Demised Premises by the earlier of
Tenant's occupancy or July 1, 2002.
3. MINIMUM RENT; INCREASES IN MINIMUM RENT;SECURITY DEPOSIT.
3.1. AMOUNT AND PAYMENT. Minimum rent for the Demised Premises shall
commence on July 1, 2002 and accrue during the term as follows:
-4-
ANNUAL
MINIMUM
LEASE PERIOD RATE RENT MONTHLY MINIMUM RENT
----------------------------- ------ ----------- --------------------
July 1, 2002 - June 30, 2003 $19.00 $408,500.04 $34,041.67
July 1, 2003 - June 30, 2004 $19.60 $421,400.04 $35,116.67
July 1, 2004 - June 30, 2005 $20.20 $434,300.04 $36,191.67
July 1, 2005 - June 30, 2006 $20.80 $447,200.04 $37,266.67
July 1, 2006 - March 31, 2007 $21.40 $460,100.04 $38,341.67
Minimum rent shall be payable during the term hereof, in advance, in the monthly
installments as set forth above, the first installment to be payable upon the
execution of this Lease and subsequent installments to be payable on the first
day of each successive month of the term hereof following the first month of
such term.
3.2. ADDRESS FOR PAYMENT. All rent and other sums due to Landlord
hereunder shall be payable to Radnor Properties-145 KOP, L.P., ▇.▇. ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or to such other party or at such other
address as Landlord may designate, from time to time, by written notice to
Tenant.
3.3. NON-WAIVER OF RIGHTS. If Landlord, at any time or times, shall
accept rent or any other sum due to it hereunder after the same shall become due
and payable, such acceptance shall not excuse delay upon subsequent occasions,
or constitute, or be construed as, a waiver of any of Landlord's rights
hereunder.
3.4. ADDITIONAL SUMS DUE; NO SET-OFF. All sums payable by Tenant
under this Lease, whether or not stated to be rent, minimum rent or additional
rent, shall be collectible by Landlord as rent, and upon default in payment
thereof Landlord shall have the same rights and remedies as for failure to pay
rent (without prejudice to any other right or remedy available therefor). All
minimum rent, additional rent and other sums payable by Tenant under this Lease
shall be paid, when due, without demand, offset, abatement, diminution or
reduction. Additional rent shall include all sums which may become due by reason
of Tenant's failure to comply with any of the terms, conditions and covenants of
the Lease to be kept and observed by Tenant and any and all damages, costs and
expenses (including without limitation thereto reasonable attorney fees) which
Landlord may suffer or incur by reason of any default of Tenant.
3.5. PERSONAL PROPERTY AND OTHER TAXES. As additional rent, Tenant
shall pay monthly or otherwise when due, whether collected by Landlord or
collected directly by the governmental agency assessing the same, any taxes
imposed or calculated on Tenant's rent or with respect to Tenant's use or
occupancy of the Demised Premises or Tenant's business or right to do business
in the Demised Premises, including, without limitation, a gross receipts tax or
sales tax on rents or a business privilege tax or use or occupancy tax, whether
such tax exists at the date of this Lease or is adopted hereafter during the
term of this Lease or during any renewal or extension thereof; but nothing
herein shall be taken to require Tenant to pay any income, estate, inheritance
or franchise tax imposed upon Landlord. In addition to the foregoing, Tenant
-5-
shall be responsible to pay when due all taxes imposed upon all fixtures or
personal property of Tenant.
4. TAXES AND OPERATING EXPENSES.
4.1. DEFINITIONS. As used in this Paragraph 4, the following terms
shall be defined as hereinafter set forth:
(A) "TAXES" shall mean all real estate taxes and assessments
of whatever kind, general or special, ordinary or extraordinary, foreseen or
unforeseen, imposed upon the Building or with respect to the ownership of the
Building and the Center and the parcel of land on which the Building and the
Center are located, and any existing or future improvements to the Building or
the Center or to the parcel of land on which the Building or the Center is
located, all of the foregoing as allocable and attributable to each given
calendar year which occurs during the term of this Lease (and any renewals and
extensions thereof). If, due to a future change in the method of taxation, any
franchise, income, profit or other tax, however designated, shall be levied or
imposed in addition to or in substitution, in whole or in part, for any tax
which would otherwise be included within the definition of Taxes, such other tax
shall be deemed to be included within Taxes as defined herein. Taxes also shall
include amounts paid to anyone engaged by Landlord to contest the amount or rate
of taxes, provided that the amounts so paid do not exceed the savings procured.
Tenant acknowledges that the exclusive right to protest, contest or appeal Taxes
shall be in Landlord's sole and absolute discretion and Tenant hereby waives any
or all rights now or hereafter conferred upon it by law to independently contest
or appeal any Taxes.
(B) "OPERATING EXPENSES" shall mean Landlord's actual
out-of-pocket expenses, adjusted as set forth herein and as allocable and
attributable to each given calendar year which occurs during the term of this
Lease (and any renewals and extensions thereof), in respect of the operation,
maintenance, repair, replacement and management of the Building and the Center
(after deducting any reimbursement, discount, credit, reduction or other
allowance received by Landlord) and shall include, without limitation: (A) wages
and salaries (and taxes and insurance imposed upon employers with respect to
such wages and salaries) and fringe benefits paid to persons employed by
Landlord to render services in the normal operation, maintenance, cleaning,
repair and replacement of the Building and the Center and any security personnel
for the Building and the Center, excluding any overtime wages or salaries paid
for providing extra services exclusively for any specific tenants; (B) costs of
independent contractors hired for, and other costs in connection with, the
operation, security, maintenance, cleaning, repair and replacement of the
Building and related facilities and amenities in the Center; (C) costs of
materials, supplies and equipment (including trucks) used in connection with the
operation, security, maintenance, cleaning, repair and replacement of the
Building and related facilities and amenities in the Center; (D) costs of
electricity, steam, water, sewer, fuel (including, without limitation, diesel
and heating fuel), compressed air, and other gases and other utilities used at
the Building or the Center, together with the cost of providing the services
specified in Paragraph 5 hereof, to the extent such utilities and/or services
are not separately chargeable to an occupant of the Building or an occupant
elsewhere in the Center; (E) cost of insurance for public and general liability
insurance and insurance relating to the Building and the Center, including fire
and extended coverage or "All-Risk" coverage, if available, and coverage
-6-
for elevator, boiler, sprinkler leakage, water damage, and property damage,
plate glass, personal property owned by Landlord, fixtures, and rent protection
(all with such coverages and in such amounts as Landlord may elect or be
required to carry), but excluding any charge for increased premiums due to acts
or omissions of other occupants of the Building or elsewhere in the Center
because of extra risk which are reimbursed to Landlord by such other occupants;
(F) costs of tools, supplies and services; (G) costs of capital improvements to
the Building and Center, but excluding (i) improvements of a purely cosmetic
nature, (ii) improvements which do not provide any benefit to Tenant, and (iii)
improvements which substantially increase the facilities available to Tenant
unless Landlord obtains Tenant's prior written approval (by way of example and
without limitation: new structured parking garage or a new lobby in Other Center
Buildings); (H) costs of alterations and improvements to the Building or the
common areas of the Center made pursuant to any Governmental Requirements, but
excluding costs of alterations and improvements which are required pursuant to
any Governmental Requirement existing, and as interpreted, as of the date of
Landlord's execution of this Lease; (I) legal and accounting fees and
disbursements necessarily incurred in connection with the ownership, maintenance
and operation of the Building and the Center, and the preparation, determination
and certification of bills for Taxes and Operating Expenses pursuant to this and
other leases at the Building and the Center; (J) sales, use or excise taxes on
supplies and services and on any of the other items included in Operating
Expenses; (K) costs of redecorating, repainting, maintaining, repairing and
replacing the common areas of the Building and the Center (including seasonal
decorations); (L) management fees payable to the managing agent for the Building
and the Center (provided, however, that if management fees are paid to any
affiliate of Landlord, then the amount thereof to be included in Operating
Expenses shall not exceed such amount as is customarily being charged for
similar services rendered to comparable buildings in the geographical sub market
within which the Center is located, but in no event less than three percent (3%)
or greater than four (4%) percent, provided, however, such management fees shall
not exceed three percent (3%) for the first three years of the lease term); (M)
the cost of telephone service, postage, office supplies, maintenance and repair
of office equipment and similar costs related to operation of the Building's and
the Center's management and superintendent's offices whether or not located at
the Center; (N) the cost of licenses, permits and similar fees and charges
related to operation, maintenance, repair and replacement of the Building and
the Center, other than any of the foregoing relating to tenant improvements; and
(O) without limiting any of the foregoing, any other expenses or charges which,
in accordance with sound accounting and management principles generally accepted
with respect to a first-class suburban laboratory building, would be construed
as an operating expense. Operating Expenses (including such as are stated above
which relate or are applicable to the Center) shall include, without limitation,
any and all sums for landscaping, ground and sidewalk maintenance, sanitation
control, extermination, cleaning, lighting, snow removal, parking area and
driveway striping and repairing, fire protection, fire safety, policing,
security systems, public liability and property damage insurance, and expenses
for the upkeep, maintenance, repair, replacement and operation of the Center,
all as payable in respect of or allocable to the Building by virtue of the
ownership thereof and/or under and pursuant to the Declaration (as hereinafter
defined). The term "Operating Expenses" shall not include: (a) the cost of
redecorating or special cleaning or similar services to individual tenant
spaces, not provided on a regular basis to other tenants of the Building; (b)
wages or salaries paid to executive personnel of Landlord not providing
full-time service at the Center; (c) any charge for depreciation or interest
paid or incurred by Landlord; (d) leasing commissions, finders fees
-7-
and all other leasing expenses incurred in procuring tenants in the Building;
(e) Taxes; (f) any costs incurred in the ownership of the Building, as opposed
to the operation and maintenance of the Building, including Landlord's income
taxes, excess profit taxes, franchise taxes or similar taxes on Landlord's
business; preparation of income tax returns; corporation, partnership or other
business form organizational expenses; franchise taxes; filing fees; or other
such expenses; or any costs incurred in cleaning up any environment hazard or
condition in violation of any environmental law (except to the extent caused by
Tenant); (g) legal fees for the negotiation or enforcement of leases; (h)
expenses in connection with services or other benefits of a type which are not
Building standard but which are provided to another tenant or occupant; (i) any
items to the extent such items are required to be reimbursed to Landlord by
Tenant (other than through Tenant's additional rent), or by other tenants or
occupants of the Building or by third parties; (j) depreciation, except in the
form of a "sinking fund" for periodic replacement of carpeting and for periodic
repainting (both in common areas only); or interest paid on any mortgage, or
ground rents paid under land leases, except for payment of any triple-net
expenses required by such leases; (k) the cost of constructing tenant
improvements or installations for any tenant in the Building, including any
relocation costs; (l) brokerage commissions, origination fees, points, mortgage
recording taxes, title charges and other costs or fees incurred in connection
with any financing or refinancing of the Building; (m) attorneys' fees and
disbursements, incurred in connection with the leasing of space in the Building
(including without limitation the enforcement of any lease or the surrender,
termination or modification of any lease of space in the Building); (n)
advertising and promotional expenses, brochures with respect to the Building;
(o) cost of repairs or replacements occasioned by fire, windstorm or other
casualty, the costs of which are covered by insurance or reimbursed by
governmental authorities in eminent domain; (p) overhead and profit increment
paid to subsidiaries or affiliates of Landlord for services on or to the
Property, to the extent that the costs of such services exceed market-based
costs for such services rendered by unaffiliated persons or entities of similar
skill, competence and experience; (q) penalties, fines, legal expenses, or late
payment interest incurred by Landlord due to violation by Landlord, or
Landlord's agents, contractors or employees, of either the payment terms and
conditions of any lease or service contract covering space in the Building or
Landlord's obligations as owner of the Building (such as late payment penalties
and interest on real estate taxes, late payment of utility bills); (r) any
compensation paid to clerks, attendants or other persons in any commercial
concession operated by Landlord in the Building from which Landlord receives any
form of income whatsoever, whether or not Landlord actually makes a profit from
such concession; or (s) costs of maintenance provided to other tenants' space to
the extent that such services are not provided to Tenant. If Landlord is not
furnishing any particular work or service (the cost of which, if performed by
Landlord, would constitute an Operating Expense) to a tenant who has undertaken
to perform such work or service in lieu of performance by Landlord, Operating
Expenses shall nevertheless be deemed to include the amount Landlord would
reasonably have incurred if Landlord had in fact performed the work or service
at its expense with the understanding that if such work is not provided to
Tenant by Landlord, then such expense shall not be deemed an Operating Expense.
The costs of electric consumption and water, sewer, gas, diesel, heating oil and
other utility services to the Demised Premises (including, without limitation,
for HVAC usage) are not included as Operating Expenses of the Building and shall
be paid for by Tenant separately in accordance with Paragraph 5 of this Lease.
(1) In determining Operating Expenses for any year, if
less than 100% of the rentable square feet of the Building shall have been
occupied by tenants at any
-8-
time during such year, Operating Expenses shall be deemed for such year to be an
amount equal to the like expenses which Landlord reasonably determines would
normally be incurred had such occupancy been 100% throughout such year.
(2) In the event Landlord shall make a capital
expenditure as described in Paragraph 4.1(B)(G) during any year, the annual
amortization of such expenditure (determined on a straight line method over the
useful life of the improvement, but in no event to exceed twelve (12) years),
plus any reasonable interest or financing charges thereon (or, if such
improvements are funded from reserves, a reasonable sum imputed in lieu of such
financing charges), shall be deemed an Operating Expense for each year of such
period.
(C) "GOVERNMENTAL REQUIREMENTS" shall mean all requirements
under any federal, state or local statutes, rules, regulations, ordinances, or
other requirements of any duly constituted public authority having jurisdiction
over the Building (including, without limitation, the Demised Premises)
including, but not limited to, requirements under applicable Radnor Township
building, zoning and fire codes and federal, state and local requirements and
regulations governing accessibility by persons with physical disabilities, all
present and future federal, state, and local statutes, rules, and regulations
respecting the environment, including, but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C., Section 9601, et seq. (CERCLA); the Resource Conservation and Recovery
Act, as amended, 42 U.S.C., Section 6901, et seq. (RCRA); the Pennsylvania
Hazardous Sites Cleanup Act, 35 P.S. Section 6020.101 et seq.; the Pennsylvania
Solid Waste Management Law, 35 P.S. Section 6018.101 et seq.; and the
Pennsylvania Clean Streams Law, 35 P.S. 691.1 et seq.; Federal Water Pollution
Control Act, 33 U.S.C. Section 4321; the Clean Air Act, 42 U.S.C. Section 7401;
the National Environmental Control Policy Act, 42 U.S.C. Section 4321; the
Refuse Act, 33 U.S.C. Section 1801-1812; the Toxic Substance Control Act, 15
U.S.C. Section 2601; the Federal Insecticide, Fungicide and Rodenticide Act, 7
U.S.C. Section 136; and the Safe Drinking Water Act, 42 U.S.C. Section 300F; The
Pennsylvania Infectious and ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇ P.S. Section
7330.101 - 7330.906 and the Pennsylvania Low Level Radioactive Waste Disposal
Act and 35 P.S. 6019.1-6019.6; the Pennsylvania Land Recycling and Environmental
Standards Act, 35 P.S. 6026-101-6026-909; the Atomic Energy Act of 1954 42
U.S.C. Section 2210 et. seq. and all regulations promulgated by the Nuclear
Regulatory Commission, including and not limited to 10 C.F.R. Parts 20, 20, 40,
50, 51, 70 and 72; The DELCORA Standards, Rules, and Regulations of 1991 as
amended and codified and any administrative or court order applicable to the
Demised Premises relating to Waste.
(D) "TENANT'S PROPORTIONATE SHARE" shall be Twenty Seven and
3,763/10,000 percent (27.3763%). This is equal to the ratio of the rentable
square feet of the Demised Premises, as set forth above, to the total rentable
square feet of space in the Building, which is 78,535 rentable square feet. The
ratio of the rentable square feet of the Demised Premises to the total rentable
square feet of space in (i) the Building, (ii) Building 2 located in the Center
(65,603 rentable square feet), (iii) Building 3 located in the Center (43,942
rentable square feet), (iv) the storage building located in the Center (1,344
rentable square feet) and (v) the maintenance building located in the Center
(8,798 rentable square feet) (collectively, the "Other Center Buildings") (which
is 198,222 rentable square feet) shall be Ten and 8,464/10,000 percent
(10.8464%).
-9-
(E) "TENANT'S SHARE OF TAXES AND OPERATING EXPENSES" shall
mean, with respect to any calendar year, the product of (A) Tenant's
Proportionate Share, multiplied by, (B) the amount of the total of Taxes and
Operating Expenses for such calendar year. Notwithstanding anything contained
herein to the contrary, total Taxes for the Center shall be allocated sixty
percent (60%) to the Research Building and forty percent (40%) to the Other
Center Buildings.
(F) "TENANT'S ESTIMATED SHARE" shall mean, with respect to any
calendar year, the product of (A) Tenant's Proportionate Share, multiplied by
(B) the amount of Landlord's good faith estimate of the total of Taxes and
Operating Expenses for such calendar year.
(G) "DECLARATION" shall mean any future declarations,
covenants, restrictions and easements, together with all existing or future
amendments, addenda and supplements thereto, executed by Landlord (or Landlord's
predecessor in title to the Center) and placed of record, submitting the Center
or portion thereof to a system of reciprocal easements, restrictions, benefits
and burdens for the use and maintenance thereof by owners and tenants, and to
which all such owners and tenants shall be subject.
4.2. GENERAL ALLOCATION PROCEDURES. Landlord and Tenant acknowledge
the following:
(A) To the extent practicable and known exactly, all Operating
Expenses will be accounted for and attributed separately for the Building, the
Research Building or for the Other Center Buildings. To the extent allocations
of an item of Operating Expenses in accordance with the foregoing sentence is
not practicable and known exactly, allocations will be made between and among
the Research Building and the Other Center Buildings proportionately among all
thereof (based upon the respective square footage of each), or equally among all
thereof, or based on usage and hours of operation or in such other proportions
as may reasonably be determined by Landlord in the exercise of prudent
management practices.
(B) Notwithstanding the foregoing, and to the extent deemed
reasonable by Landlord, all common area and other charges under and as permitted
by the Declaration will be charged and allocated among the Research Building,
the Other Center Buildings, and any other building, facility or property subject
to the Declaration, all in accordance with the terms and provisions of the
Declaration.
4.3. TENANT'S SHARE OF TAXES AND OPERATING EXPENSES.
(A) For and with respect to each calendar year which occurs
during the term of this Lease (and any renewals or extensions thereof) there
shall accrue, as additional rent, Tenant's Share of Taxes and Operating
Expenses, appropriately prorated for any partial calendar year occurring within
the term.
(B) Landlord shall furnish to Tenant, on or before December 31
of each calendar year during the term hereof, a statement for the next
succeeding calendar year setting forth Tenant's Estimated Share and the
information on which such estimate is based. On the first day of the new
calendar year, Tenant shall pay to Landlord, on account of Tenant's Estimated
-10-
Share, an amount equal to one-twelfth (1/12) of Tenant's Estimated Share, and on
the first day of each succeeding month up to and including the time that Tenant
shall receive a new statement of Tenant's Estimated Share, Tenant shall pay to
Landlord, on account of Tenant's Estimated Share, an amount equal to one-twelfth
(1/12) of the then applicable Tenant's Estimated Share.
(C) Landlord shall furnish to Tenant, on or before May 31 of
each calendar year during the term hereof, a statement (the "Expense Statement")
prepared by Landlord or its agent or accountants setting forth for the previous
calendar year: (A) the actual amount of Taxes and Operating Expenses for the
previous calendar year; (B) the Tenant's Proportionate Share; (C) the Tenant's
Share of Taxes and Operating Expenses; (D) the Tenant's Estimated Share; and (E)
a statement of the amount due to Landlord, or to be credited to Tenant, as a
final adjustment in respect of Tenant's Share of Taxes and Operating Expenses
for the previous calendar year (the "Final Adjustment Amount"). The Final
Adjustment Amount shall be calculated by subtracting the Tenant's Estimated
Share from the Tenant's Share of Taxes and Operating Expenses. On the first day
of the first calendar month (but in no event sooner than thirty [30] days)
following delivery of the Expense Statement to Tenant, Tenant shall pay to
Landlord the Final Adjustment Amount calculated as set forth in the Expense
Statement. If the Final Adjustment Amount is a negative quantity, then Landlord
shall credit Tenant with the amount thereof against the next payment of minimum
rent due by Tenant hereunder, except that with respect to the last year of the
Lease, if an Event of Default has not occurred, Landlord shall refund Tenant the
amount of such payment in respect of the Final Expense Adjustment within thirty
(30) days after Landlord provides the Expense Statement for such final year of
the Lease. In no event, however, shall Tenant be entitled to receive a credit
greater than the payments made by Tenant as payments of Tenant's Estimated Share
for the calendar year to which the Final Adjustment Amount relates.
4.4. DISPUTES. The information set forth on all statements furnished
to Tenant pursuant to this Paragraph 4, including each Expense Statement, and
all documents relating to Tenant's Estimated Share, Tenant's Share of Taxes and
Operating Expenses, the Final Adjustment Amount, and all supportive
documentation and calculations, shall be deemed approved by Tenant unless,
within thirty (30) days after submission to Tenant, Tenant shall notify Landlord
in writing that it disputes the correctness thereof, specifying the basis for
such assertion. Pending the resolution of any dispute, however, Tenant shall
continue to make payments in accordance with the statement or information as
furnished.
4.5. SURVIVAL. Notwithstanding anything herein contained to the
contrary, Tenant understands and agrees that additional rent for increases of
Taxes and Operating Expenses described in this Paragraph 4 are attributable to
and owing for a specific twelve (12) month period, and are generally determined
in arrears. Accordingly, Tenant agrees that, at any time following the
expiration of the term of this Lease, or after default by Tenant with respect to
this Lease, Landlord may ▇▇▇▇ Tenant for (i) the entire amount of accrued and
uncollected additional rent attributable to increases in Taxes and Operating
Expenses under this Paragraph 4, and (ii) any unpaid charges for usage, services
or other amounts with respect to any period during the term of this Lease; and
the amount of such ▇▇▇▇ shall be due and payable to Landlord within thirty (30)
days after rendering thereof.
5. SERVICES. Landlord agrees that during the term of the Lease, Landlord
shall provide services as set forth in this Paragraph 5.
-11-
(A) HVAC AND ELECTRICITY. Landlord shall furnish (a) heat,
ventilation and air conditioning (including the labor, maintenance and equipment
necessary to provide the same), (b) electricity and other utilities needed to
operate such systems, (c) electricity, not to exceed 6 ▇▇▇▇▇ per rentable square
feet, for lighting and general power for office use and for the cafeteria and
kitchen areas as presently configured, each of the foregoing to be paid for by
Tenant as follows:
(1) STANDARD USAGE; BUSINESS HOURS. Tenant shall pay its
pro rata share (based upon Tenant's Proportionate Share, but subject to the last
sentence of this subparagraph) of the cost to the Building (including applicable
sales or use taxes) for the foregoing services during "Business Hours" (as
hereinafter defined) and for "Building Standard Consumption" (as hereinafter
defined). Such payment shall be made by Tenant within thirty (30) days after
submission by Landlord of a statement to Tenant setting forth the amount due.
"Business Hours" shall mean Monday through Friday from 8:00 a.m. to 6:00 p.m.
and on Saturday from 8:00 a.m. to 1:00 p.m., Holidays (defined below) excepted.
New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving,
Christmas, or any day set aside to celebrate such holidays are "Holidays" under
this Lease. "Building Standard Consumption" shall mean the consumption
necessary, in Landlord's reasonable judgment, for use and comfortable occupancy
of the Demised Premises when occupied by the density of people for which the
building standard system was designed with occupants using Standard Office
Equipment and with respect to the kitchen area, existing kitchen equipment and
equipment found in a similar employee cafeteria. "Standard Office Equipment"
shall mean all office equipment normally found in an office facility but shall
not include "main frame" computer and communication systems, telephone switches
and conference or training rooms (or items similar thereto) which require
Additional Electric Equipment, as hereinafter defined, or additional air
conditioning service or systems. In determining Tenant's pro rata share for the
foregoing services for any period, the cost for the foregoing services shall be
deemed for such period to be an amount equal to the like expenses which Landlord
reasonably determines would normally be incurred had the Building been fully
occupied throughout such period.
(2) NON-STANDARD USAGE; AFTER-HOURS. Tenant shall pay
the cost of supplying the Demised Premises with the foregoing services at times
outside of Business Hours or in amounts in excess of Building Standard
Consumption, at such rates as Landlord shall specify from time to time to cover
all of the estimated costs and expenses incurred by Landlord in connection with
supplying the Demised Premises with such service, including without limitation
the costs of labor and utilities associated with such service and including
applicable sales or use taxes thereon, such amounts to be paid by Tenant within
thirty (30) days after submission by Landlord of a statement to Tenant setting
forth the amount due. With respect to heat, ventilation and air conditioning
required by Tenant outside of Business Hours, Tenant shall notify Landlord by
12:00 noon on the day such after-hours use is desired, except if such use is
desired for a weekend, in which event Tenant shall notify Landlord no later than
12:00 noon on the Friday immediately preceding such weekend.
(3) SUPPLEMENTAL HVAC EQUIPMENT. If Tenant requires air
conditioning in addition to the Building Standard Consumption that is provided
by Landlord as set forth above (e.g., due to above-standard densities of
personnel or heat generating equipment, including, but not limited to, computer,
communications, or telephone switching equipment,
-12-
whether due to energy consumption, configuration, concentration, location or
otherwise, or for conference or training facilities, or for other similar or
dissimilar items, uses or requirements of Tenant), Tenant may, or upon
Landlord's written request shall, arrange for the installation of a separate air
conditioning unit, subject to Landlord's prior written approval and satisfaction
of the other provisions regarding Tenant improvements or alterations set forth
in this Lease. Tenant shall be responsible for the cost and installation of such
unit for its intended purpose, and for the maintenance, repair, replacement,
operation and utilities (including electricity, and, as applicable, gas, steam,
water and sewer) of the same and for any additional sub-meter needed to account
for the electricity and any other utilities utilized to operate such unit. If
Landlord, in its sole discretion, permits Tenant to attach a separate
air-conditioning unit to the cooling tower, Tenant shall pay for the condenser
water made available to such unit from the cooling tower (whether or not
actually used) in connection with any such supplemental air conditioning, at
such rates as Landlord shall establish from time to time, such amounts to be
paid by Tenant within thirty (30) days after submission by Landlord of a
statement to Tenant setting forth the amount due. The cost of supplying
electricity for supplemental heat, ventilation and air conditioning equipment
for the Demised Premises may be reflected in Tenant's electric ▇▇▇▇ as described
in Paragraph 5(C) below.
(B) HVAC SYSTEM INADEQUACY. Landlord shall not be responsible
for any failure or inadequacy of the Building's HVAC system if such failure or
inadequacy results from the occupancy of the Demised Premises by persons in
excess of the density anticipated or for which the system was designed, or if
Tenant uses the Demised Premises in a manner for which it was not designed, or
if Tenant installs or operates machines, appliances or equipment (whether due to
energy consumption, configuration, concentration, location or otherwise), which
exceed the maximum wattage per square foot contemplated by, or generate more
heat than anticipated in, the design of the Building's HVAC system.
(C) Tenant shall pay for all electricity consumed in the
Demised Premises (including electricity for outlets, general lighting, any
supplemental HVAC equipment as described below, any Additional Electric
Equipment as described in Paragraph 5(E), and any special lighting equipment
serving the Demised Premises), as follows:
(1) Tenant shall pay such rates as Landlord is charged
by the electric provider(s).
(2) For areas of the Demised Premises now or hereafter
separately-metered, Tenant shall pay for amounts of electricity based on such
meters, and any meter-reading charges incurred by Landlord, or which Landlord
may reasonably establish from time to time. For areas of the Demised Premises
not separately metered, Tenant shall pay for amounts of electricity based on the
reasonable estimates of Landlord's engineer, or at either party's request,
Landlord shall install (at the cost of the requesting party) separate meters,
and Tenant shall thereafter pay based on such meters. In the alternative, for
areas of the Demised Premises not separately metered, but metered together with
other space in the Building, Landlord may from time to time elect to allocate
the electricity charges between the Demised Premises and such other space based
on the ratio of the rentable area of the Demised Premises and the rentable area
of such other space; provided, if such other space is not fully occupied during
any billing period, Landlord may make an adjustment in the foregoing computation
such that only the
-13-
average rentable square footage of such other space actually occupied during
such billing period is used.
(3) All such charges shall be payable as additional Rent
within thirty (30) days after such billing. Landlord may reasonably estimate
Tenant's electricity charges in advance, on a monthly basis, and ▇▇▇▇ and
reconcile such amounts periodically (with Landlord to provide any necessary
credit or refund and Tenant to pay any additional amount due).
(4) HOT WATER. Landlord shall provide (i) hot water to
reheat coils and perimeter units in the Demised Premises and (ii) hot water and
steam for kitchen use at rates and temperatures as Tenant reasonably requires,
but in no event to exceed design conditions.
(5) Tenant acknowledges that the Center has one central
plant (the "Central Plant") which provides chilled water to service the Research
Building and the Other Center Buildings. All costs to operate the Central Plant
will be allocated among the Research Building and Other Center Buildings on the
basis of actual usage of chilled water as metered by Landlord.
(D) STEAM CENTRAL PLANT. Landlord's costs for gas and fuel oil
used in the generation of steam and hot water in the Central Plant will be
allocated to the Research Building and to the Other Center Buildings on the
basis of actual usage of steam as metered by Landlord.
(E) ADDITIONAL ELECTRICAL EQUIPMENT. Tenant will not install
or use electrically-operated equipment in excess of the design capacity of the
Demised Premises (as established by Landlord if not so set forth) and Tenant
will not install or operate in the Demised Premises any electrically-operated
equipment or machinery other than that commonly used in a normal operation
without first obtaining the prior written consent of the Landlord. Landlord may
reasonably condition any consent required under this Paragraph 5 (E) upon the
installation of separate meters (and transformers or electrical panels) for such
equipment or machinery at Tenant's expense and the payment by Tenant of
additional rent as compensation for the additional consumption of electricity
occasioned by the operation of such additional equipment or machinery, at the
rates and in the manner set forth in Paragraph 5(C) above. Tenant shall replace,
at its sole cost, all light bulbs and tubes, and ballasts within the Demised
Premises.
(F) REGULATORY COMPLIANCE. The furnishing of the foregoing
heating, ventilation, air conditioning and electricity services shall be subject
to any statute, ordinance, rule, regulation, resolution or recommendation for
energy conservation which may be promulgated by any governmental agency or
organization which Landlord shall be required to comply with or which Landlord
determines in good faith to comply with.
5.2. WATER AND SEWER. Landlord shall furnish the Building with water
(i) for drinking, lavatory, toilet and sanitary sewer purposes drawn through
fixtures installed by Landlord, (ii) necessary for the operation of the
Building's fire safety devices, (iii) by the Building's HVAC system, necessary
for the operation of such system and (iv) for kitchen
-14-
purposes. The cost of usage of such services attributable to the Demised
Premises shall be paid for by Tenant pursuant to a statement furnished by
Landlord to Tenant setting forth the amount due as a result of such usage
reasonably attributable to the Demised Premises, and the total amount set forth
in such statement shall be due and payable by Tenant within thirty (30) days
after submission thereto by Landlord of such statement. Landlord agrees to
conduct a water conservation study when the Building is substantially occupied
and to use the findings of the study as a basis of allocating costs of water and
sewer until such time as a follow up study is reasonably warranted.
5.3. PAYMENT FOR SERVICES. Landlord and Tenant acknowledge to the
extent practicable and known exactly, all the services will be accounted for and
attributed between the Research Building and for the Other Center Buildings. To
the extent allocations of a service in accordance with the foregoing sentence is
not practicable and known exactly, allocations will be made between and among
the Research Building and the Other Center Buildings proportionately among all
thereof based upon the (i) respective square footage of each, or (ii) equally
among all thereof, (iii) or based on usage and hours of operation, (iv) or in
such other proportions as may reasonably be determined by Landlord in the
exercise of prudent management practices that would result in a more accurate
allocation. In the event a cost was inadvertently excluded such cost shall be
allocated in the manner set forth above within a reasonable time from discovery.
5.4. ACCESS. Tenant and its employees and agents shall have access
to the Demised Premises at all times, subject to compliance with such security
measures as shall be in effect for the Building.
-15-
5.5. JANITORIAL. Landlord shall provide janitorial service to the
common areas of the Building as specified on Exhibit "D" annexed hereto, subject
to change. Tenant shall participate and comply with any recycling or similar
program which may be promulgated by any authorities with which Landlord shall be
required to comply or with which Landlord determines in good faith to comply.
Tenant shall arrange for and provide janitorial services for the Demised
Premises, subject to the following conditions: (i) Tenant's janitorial services
provider ("Tenant's Janitor") shall be subject to Landlord's reasonable prior
approval, (ii) the level and quality of such janitorial services shall be equal
to or greater than the level and quality of janitorial services provided by
Landlord to other tenant spaces in the Building or to such level as Landlord
would have provided, (iii) Tenant provides such other information as may be
reasonably requested by Landlord in order for Landlord to determine whether to
approve Tenant's Janitor, (iv) Tenants' Janitor shall be subject to the terms
and conditions imposed on Tenant's contractors under Exhibit "F" attached
hereto, and shall agree in writing to be bound by the rules and regulations of
the Building, and (v) Tenant shall comply with all Governmental Requirements in
removing and disposing of all trash and waste generated in the Demised Premises.
Landlord shall have no obligation to provide janitorial services within the
Demised Premises. In the event that Tenant fails to provide janitorial services
to the Demised Premises at the aforementioned level and quality, as determined
by Landlord, and such failure continues for more than thirty (30) days after
written notice from Landlord (provided however, that Landlord shall not be
required to give any such notice more than once during any twelve (12) month
period) then Landlord may resume providing janitorial services to the Demised
Premises, and in which event Landlord shall furnish to Tenant a statement
setting forth the amount due for the janitorial services, and the total amount
set forth in such statement shall be due and payable by Tenant monthly, in
arrears.
5.6. SECURITY. Landlord provides a security card or code type access
system at the main entrance to the Building for Tenant's convenience. Tenant and
Tenant's employees, as well as other tenants of the Building, will have access
to the Building using such access system. Tenant, its employees and invitees
shall close and secure the entrances to the Building upon entering and exiting
the Building. Landlord makes no representation that the access system or any
future system employed at the Building to monitor access to the Building will
prevent unauthorized access to the Building or the Demised Premises, and Tenant
acknowledges that no security guards are provided by Landlord. Accordingly,
Tenant agrees that Tenant shall be responsible for security of the Demised
Premises and the security and safety of Tenant's employees, invitees, officers,
directors, contractors, subcontractors and agents. In furtherance of the
foregoing, Landlord assumes no liability or responsibility for Tenant's personal
property whether such are located in the Demised Premises or elsewhere in the
Building or the Center. Tenant further acknowledges that Landlord may (but shall
have no obligation to) alter current security measures in the Building, and
Tenant agrees that it shall cooperate fully, and shall cause its employees and
invitees to cooperate fully, with any requests of Landlord in connection with
the implementation of any new security procedures or other arrangements. Subject
to Landlord's approval of the system, Tenant may (at its sole cost and expense)
install a security/access system ("Security System") in the Demised Premises.
Tenant shall provide Landlord with the card keys to the Security System to allow
Landlord access to the Demised Premises. Landlord may require that Tenant remove
the Security System prior to expiration or termination of the Lease and restore
the Demised Premises to the condition existing on the Commencement Date of this
Lease, all at Tenant's sole cost and expense. The Security System shall not
interfere with or otherwise affect the electrical, mechanical, structural, life
safety or other building systems of the
-16-
Building and/or the ordinary operation of the Building. The provisions of this
Paragraph shall survive the expiration or termination of this Lease.
5.7. REPAIRS. Landlord shall make (i) all structural repairs to the
Building and (ii) all repairs to the exterior windows and glass and all repairs
to the common areas of the Building. In the event that any repair is required by
reason of the negligence or abuse of Tenant or its agents, employees, invitees
or of any other person using the Demised Premises with Tenant's consent, express
or implied, Landlord may make such repair and add the cost thereof to the first
installment of rent which will thereafter become due, unless Landlord shall have
actually recovered such cost through insurance proceeds. Landlord shall not
otherwise be responsible to make any repairs to the Demised Premises.
5.8. SYSTEM CHANGES. Tenant shall not install any equipment of any
kind or nature whatsoever which would or might necessitate any changes,
replacement or additions to the water, plumbing, heating, air conditioning or
the electrical systems servicing the Demised Premises or any other portion of
the Building; nor install any plumbing fixtures in the Demised Premises; nor use
in excess of normal use any of the utilities, the common areas of the Building,
the janitorial or trash removal services, or any other services or portions of
the Building without the prior written consent of the Landlord, and in the event
such consent is granted, the cost of any such installation, replacements,
changes, additions or excessive use shall be paid for by Tenant within thirty
(30) day upon being billed therefor in the case of charges in excessive use.
5.9. DIRECTORY. Landlord shall install and maintain a directory of
tenants in the lobby area of the Building, on which shall be listed the name of
Tenant.
5.10. OVERHEAD FEE. Notwithstanding anything to the contrary
contained in this ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ reserves the right to impose a
reasonable administrative overhead charge whenever Landlord provides or
arranges, upon Tenant's request, for additional or above standard services, not
to exceed fifteen percent (15%) of such charge(s).
5.11. LIMITATION REGARDING SERVICES. It is understood that Landlord
does not warrant that any of the services referred to in this Paragraph 5 will
be free from interruption from causes beyond the control of Landlord. Landlord
reserves the right, without any liability to Tenant, and without being in breach
of any covenant of this Lease, to interrupt or suspend service of any of the
heating, ventilating, air-conditioning, electric, sanitary, elevator or other
Building systems serving the Demised Premises, or the providing of any of the
other services required of Landlord under this Lease, whenever and for so long
as may be necessary by reason of accidents, emergencies, strikes or the making
of repairs or changes which Landlord is required by this Lease or by law to make
or in Landlord's commercially reasonable judgment deems advisable, or by reason
of difficulty in securing proper supplies of fuel, steam, water, electricity,
gas, labor or supplies, or by reason of any other cause beyond Landlord's
reasonable control, including without limitation, mechanical failure and
governmental restrictions on the use of materials or the use of any of the
Building systems. In each instance, however, Landlord shall exercise
commercially reasonable diligence to eliminate the cause of interruption and to
effect restoration of service, and shall give Tenant reasonable notice, when
practicable, of the commencement and anticipated duration of such interruption.
Tenant shall not be entitled to any diminution or abatement of rent or other
compensation nor shall this Lease or any of the
-17-
obligations of the Tenant be affected or reduced by reason of the interruption,
stoppage or suspension of any of the Building systems or services arising out of
the causes set forth in this Paragraph.
5.12. Intentionally Omitted.
6. CARE OF DEMISED PREMISES. Tenant agrees, on behalf of itself, its
employees and agents, that during the term of this Lease, Tenant shall comply
with the covenants and conditions set forth in this Paragraph 6.
6.1. INSURANCE AND GOVERNMENTAL REQUIREMENTS. At all times during
the term of this Lease and any extension or renewal hereof, Tenant, at its cost,
shall comply with, and shall promptly correct any violations of, (i) all
requirements of any insurance underwriters, or (ii) any Governmental
Requirements relating to Tenant's use and occupancy of the Demised Premises.
Tenant shall indemnify, defend and hold Landlord harmless from and against any
and all loss, damages, claims of third parties, cost of correction, expenses
(including reasonable attorney's fees and cost of suit or administrative
proceedings) or fines arising out of or in connection with Tenant's failure to
comply with Governmental Requirements. The provisions of this Paragraph 6.1
shall survive the expiration or termination of this Lease.
6.2. ACCESS. Tenant shall give Landlord, its agents and employees,
access to the Demised Premises at all reasonable times, and at any time in the
case of an emergency, without charge or diminution of rent, to enable Landlord
(i) to examine the same and to make such repairs, additions and alterations as
Landlord may be permitted to make hereunder or as Landlord may deem advisable
for the preservation of the integrity, safety and good order of the Building or
any part thereof; and (ii) upon reasonable notice, to show the Demised Premises
to prospective mortgagees and purchasers and to prospective tenants. If
representatives of Tenant shall not be present on the Demised Premises to permit
entry upon the Demised Premises by Landlord or its agents or employees, at any
time when such entry by Landlord is necessary or permitted hereunder, Landlord
may enter the Demised Premises by means of a master key (or, in the event of any
emergency, forcibly) without any liability whatsoever to Tenant and without such
entry constituting an eviction of Tenant or a termination of this Lease.
Landlord shall not be liable by reason of any injury to or interference with
Tenant or Tenant's business arising from the making of any repairs, alterations,
additions or improvements in or to the Demised Premises or the Building or to
any appurtenance or any equipment therein.
6.3. CONDITION AND REPAIRS. Tenant shall keep the Demised Premises
and all improvements, installations and systems therein in good order and
condition and repair all damage to the Demised Premises and replace all interior
glass broken by Tenant, its agents, employees or invitees, with glass of the
same quality as that broken, except for glass broken by fire and extended
coverage type risks. Tenant shall make all repairs to the Demised Premises
including, but not limited to, the mechanical, electrical, plumbing systems,
using Landlord approved contractors. If the Tenant refuses or neglects to make
such repairs, or fails to diligently prosecute the same to completion, after
written notice from Landlord of the need therefor, Landlord may make such
repairs at the expense of Tenant and such expense shall be collectible as
additional rent. Any such repairs and any labor performed or materials furnished
in, on or about the Demised Premises shall be performed and furnished by Tenant
in strict compliance
-18-
with all applicable laws, regulations, ordinances and requirements of all duly
constituted authorities or governmental bodies having jurisdiction over the
Building, and any reasonable regulations imposed by Landlord pertaining thereto.
Without limitation of the foregoing, Landlord shall have the right to designate
any and all contractors and suppliers to furnish materials and labor for such
repairs. Any contractors performing services for Tenant on or about the Demised
Premises or Building shall be subject to the requirements governing work by
Tenant's contractors as set forth in Exhibit "F" attached hereto and made a part
hereof.
6.4. SURRENDER. Upon the termination of this Lease in any manner
whatsoever, Tenant shall remove Tenant's goods and effects and those of any
other person claiming under Tenant, and quit and deliver up the Demised Premises
to Landlord peaceably and quietly in as good order and condition as at the
inception of the term of this Lease or as the same hereafter may be improved by
Landlord or Tenant, reasonable use and wear thereof, damage from fire and other
insured casualty and repairs which are Landlord's obligation excepted. Goods and
effects not removed by Tenant at the termination of this Lease, however
terminated, shall be considered abandoned and Landlord may dispose of and/or
store the same as it deems expedient, the cost thereof to be charged to Tenant.
6.5. SIGNS. Tenant shall not place signs on or about any part of the
Building, or on the outside of the Demised Premises or on the exterior doors,
windows or walls of the Demised Premises, except on doors and then only of a
type and with lettering and text approved by Landlord.
6.6. CARE; INSURANCE. Tenant shall not overload, damage or deface
the Demised Premises or do any act which might make void or voidable any
insurance on the Demised Premises or the Building or which may render an
increased or extra premium payable for insurance (and without prejudice to any
right or remedy of Landlord regarding this subparagraph, Landlord shall have the
right to collect from Tenant, upon demand, any such increase or extra premium).
6.7. ALTERATIONS; ADDITIONS. Except for "Minor Improvements" (as
defined below), Tenant shall not make any alteration of or addition to the
Demised Premises without the prior written approval of Landlord. Such approval
shall not be unreasonably withheld or delayed for nonstructural interior
alteration, provided that (i) no Building systems, structure, or areas outside
of the Demised Premises are affected by such proposed alteration, and (ii)
reasonably detailed plans and specifications for construction of the work,
including but not limited to any and all alterations having any impact on or
affecting any electrical systems, plumbing, HVAC, sprinkler system and interior
walls and partitions, are furnished to Landlord in advance of commencement of
any work. All such alterations and additions, as well as all fixtures,
equipment, improvements and appurtenances installed in and affixed to the
Demised Premises at the inception of this Lease (but excluding Tenant's trade
fixtures and modular furniture systems) shall, upon installation, become and
remain the property of Landlord and shall only be required to be removed by
Tenant, at Tenant's sole cost, upon termination or expiration of the Lease if
Landlord indicates in writing such requirement at the time of Landlord's
approval. All such alterations and additions shall be maintained by Tenant in
the same manner and order as Tenant is required to maintain the Demised Premises
generally and, at Landlord's option, upon termination of the term hereof, shall
be removed at Tenant's cost without damage to the Demised
-19-
Premises upon surrender. All alterations and additions by Tenant shall be
performed in accordance with the plans and specifications therefor submitted to
and approved by Landlord, in a good and workerlike manner and in conformity with
all Governmental Requirements. In addition, all such alterations and additions
shall be performed in strict compliance with the requirements governing work by
Tenant's contractors as set forth in Exhibit "F" hereto. The term "Minor
Improvements" as used herein shall mean cosmetic and non-structural alterations
or additions to the Demised Premises, which (i) do not affect any Building
systems, structure, or areas outside of the Demised Premises, and (ii) the cost
of which, in the aggregate does not exceed $25,000.00. Tenant shall supply
Landlord with a copy of plans and specifications for any Minor Improvements
prior to installation and Landlord shall notify Tenant within thirty (30) days
of receipt whether Tenant will be required to remove such Minor Improvements and
restore the Demised Premises to the condition existing prior to the installation
of any such Minor Improvements, and repair any damage caused by such removal at
the expiration or sooner termination of the Lease.
6.8. MECHANICS' LIENS. Tenant, within ten (10) days after notice
from Landlord, (i) shall discharge (by bonding or otherwise) any mechanics' lien
for material or labor claimed to have been furnished to the Demised Premises on
Tenant's behalf (except for work contracted for by Landlord), (ii) shall deliver
to Landlord satisfactory evidence thereof, and (iii) shall indemnify and hold
harmless Landlord from any loss incurred in connection therewith.
6.9. Intentionally Omitted.
6.10. RULES AND REGULATIONS. Tenant shall observe the rules and
regulations annexed hereto as Exhibit "E", as the same may from time to time be
amended by Landlord for the general safety, comfort and convenience of Landlord,
occupants and tenants of the Building.
6.11. ENVIRONMENTAL COMPLIANCE. Tenant shall not transport, use,
store, maintain, generate, manufacture, handle, dispose, release or discharge
any "Waste" (as defined below) upon or about the Building or Center, or permit
Tenant's employees, agents, contractors, and other occupants of the Demised
Premises to engage in such activities upon or about the Center, Building or the
Demised Premises. However, the foregoing provisions shall not prohibit the
transportation to and from, and use, storage, maintenance and handling within,
the Demised Premises of substances customarily used in similar cafeterias
provided: (a) such substances shall be used and maintained only in such
quantities as are reasonably necessary for such permitted use of the Demised
Premises, strictly in accordance with applicable Governmental Requirements and
the manufacturers' instructions therefor, (b) such substances shall not be
disposed of, released or discharged in the Center or Building, and shall be
transported to and from the Demised Premises in compliance with all applicable
Governmental Requirements, and as Landlord shall reasonably require, (c) Tenant
shall make arrangements at Tenant's expense for disposal of any substances
required (by Governmental Requirements or Landlord's trash removal contractor)
to be disposed of separately from ordinary trash directly with a qualified and
licensed disposal company at a lawful disposal site (subject to scheduling and
approval by Landlord), and shall ensure that disposal occurs frequently enough
to prevent unnecessary storage of such substances in the Demised Premises, and
(d) any remaining such substances shall be completely, properly and lawfully
removed from the Building upon expiration or earlier termination of this Lease.
-20-
(A) Tenant shall promptly notify Landlord of: (a) any
enforcement, cleanup or other regulatory action taken or threatened by any
governmental or regulatory authority with respect to the presence of any Waste
on the Demised Premises or the migration thereof from or to the Building or
Center, (b) any demands or claims made or threatened by any party against Tenant
or the Demised Premises relating to any loss or injury resulting from any Waste,
(c) any release, discharge or nonroutine, improper or unlawful disposal or
transportation of any Waste on or from the Demised Premises, and (d) any matters
where Tenant is required by any Governmental Requirement to give a notice to any
governmental or regulatory authority respecting any Waste on the Demised
Premises. Landlord shall have the right (but not the obligation) to join and
participate as a party in any legal proceedings or actions affecting the Demised
Premises initiated in connection with any environmental, health or safety
Governmental Requirement. At such times as Landlord may reasonably request,
Tenant shall provide Landlord with a written list identifying any Waste then
used, stored, or maintained upon the Demised Premises and the use and
approximate quantity of each such material. Tenant shall also furnish Landlord
with a copy of any material safety data sheet ("MSDS") issued by the
manufacturer as well as any written information concerning the removal,
transportation and disposal of the same, and such other information as Landlord
may reasonably require or as may be required by Governmental Requirement. The
term "Waste" for purposes hereof shall mean any hazardous or radioactive
material, polychlorinated biphenyls, friable asbestos or other hazardous or
medical waste substances as defined by the CERCLA, as amended, or by any other
federal, state or local law, statute, rule, regulation or order (including any
Governmental Requirements) concerning environmental matters, or any matter which
would trigger any employee or community "right-to-know" requirements adopted by
any such body, or for which any such body has adopted any requirements for the
preparation or distribution of a MSDS.
(B) If any Waste is released, discharged or disposed of by
Tenant or any other occupant of the Demised Premises, or their employees, agents
or contractors, in or about the Building or Center in violation of the foregoing
provisions, Tenant shall immediately, properly and in compliance with applicable
Governmental Requirements clean up and remove the Waste from the Building or
Center and clean or replace any affected property at the Building or Center
(whether or not owned by Landlord), at Tenant's expense. Such clean up and
removal work shall be subject to Landlord's prior written approval (except in
emergencies), and shall include, without limitation, any testing, investigation,
and the preparation and implementation of any remedial action plan required by
any governmental body having jurisdiction or reasonably required by Landlord. If
Tenant shall fail to comply with the provisions of this Paragraph within five
(5) days after written notice by Landlord, or such shorter time as may be
required by any Governmental Requirement or in order to minimize any hazard to
any person or property, Landlord may (but shall not be obligated to) arrange for
such compliance directly or as Tenant's agent through contractors or other
parties selected by Landlord, at Tenant's expense (without limiting Landlord's
other remedies under this Lease or applicable Governmental Requirement). If any
Waste is released, discharged or disposed of on or about the Building or Center
and such release, discharge, or disposal is not caused by Tenant or other
occupants of the Demised Premises, or their employees, agents or contractors,
such release, discharge or disposal shall be deemed casualty damage under
Paragraph 8 to the extent that the Demised Premises or common areas serving the
Demised Premises are affected thereby; in such case, Landlord and Tenant shall
have the obligations and rights respecting such casualty damage provided under
Paragraph 8. In
-21-
accordance with Paragraph 9.7, the provisions of this Paragraph 6 shall inure to
the benefit of the successors and assigns of Landlord.
6.12. INTENTIONALLY OMITTED.
7. SUBLETTING AND ASSIGNING.
7.1. GENERAL RESTRICTIONS. Tenant shall not assign this Lease or
sublet all or any portion of the Demised Premises (either a sublease or an
assignment hereinafter referred to as a "Transfer") without first obtaining
Landlord's prior written consent thereto, which shall not be unreasonably
withheld, conditioned or delayed. By way of example and without limitation, the
parties agree it shall be reasonable for Landlord to withhold consent: (1) if
the financial condition of the proposed transferee is not comparable, in
Landlord's reasonable determination, to the financial condition Landlord would
require of any prospective tenant leasing comparable space; (2) if the proposed
use within the Demised Premises conflicts with the use provision set forth
herein or is incompatible, inconsistent, or unacceptable with the character, use
and image of the Building or the tenancy at the Building in Landlord's
reasonable opinion, or conflicts with exclusive use rights granted to another
tenant of the Building or Center; (3) if the business reputation and experience
of the proposed transferee is not sufficient, in Landlord's reasonable opinion,
for it to operate a business of the type and quality consistent with other
tenants in the Center; (4) if the document creating the Transfer is not
reasonably acceptable to Landlord; (5) the nature of the fixtures and
improvements to be performed or installed are not consistent with general use
and the terms of this Lease; (6) if the proposed transferee is an existing
tenant of Landlord (except if Landlord has no other available space) or is
currently negotiating or has negotiated within the prior twelve (12) months with
Landlord for other space in the Center (or any other building owned by an
affiliate of Landlord); (7) if the proposed user is a governmental or
quasi-governmental agency; (8) if the proposed transferee will be using or if
Landlord has reasonable cause to believe that it is likely to use Waste at the
Demised Premises other than those types of Waste normally used in general
cafeteria operations in compliance with applicable Governmental Requirements; or
(9) if Landlord has reasonable cause to believe that the proposed transferee's
assets, business or inventory would be subject to seizure or forfeiture under
any laws related to criminal or illegal activity. If Landlord consents to a
Transfer, such consent, if given, will not release Tenant from its obligations
hereunder and will not be deemed a consent to any further Transfer. Tenant shall
furnish to Landlord, in connection with any request for such consent, reasonably
detailed information as to the identity and business history of the proposed
assignee or subtenant, as well as the proposed effective date of the Transfer
and, prior to the execution thereof, a complete set of the final documentation
governing such Transfer, all of which shall be satisfactory to Landlord in form
and substance. If Landlord consents to any such Transfer, the effectiveness
thereof shall nevertheless be conditioned on the following: (i) receipt by
Landlord of a fully executed copy of the full documentation governing the
Transfer, in the form and substance approved by Landlord, (ii) any sublessee
shall acknowledge that its rights arise through and are limited by the Lease,
and shall agree to comply with the Lease (with such exceptions as may be
consented to by Landlord), and (iii) any assignee shall assume in writing all
obligations of Tenant hereunder from and after the effective date of such
Transfer. Tenant shall not advertise or otherwise disseminate any information
regarding the Building or the Demised Premises (including, without limitation,
rental rates or other terms upon which Tenant intends to Transfer) to potential
assignees and/or subtenants without in each instance obtaining
-22-
Landlord's prior written approval and consent as to the specific form and
content of any such advertisement, statement, offering or other information
(including, without limitation, approval of rental rates and terms). Landlord's
acceptance of any name for listing on the Building Directory will not be deemed,
nor will it substitute for, Landlord's consent, as required by this Lease, to
any Transfer, or other occupancy of the Demised Premises. Tenant shall not
mortgage or encumber this Lease.
7.2. Intentionally Omitted.
7.3. PROCEDURE FOR APPROVAL OF TRANSFER. If Tenant wishes to request
Landlord's consent to a Transfer, Tenant shall submit such request to Landlord,
in writing, together with reasonably detailed financial information and
information as to the identity and business information and business history of
the proposed transferee, as well as the proposed effective date of the Transfer
and the area or portion of the Demised Premises which Tenant wishes to Transfer
(the "Transfer Space"). If Landlord fails to respond or request additional
information from Tenant within sixty (60) days after receipt of Tenant's proper
request for approval, Tenant shall submit an additional request to Landlord,
setting forth the same information and further notifying Landlord on such
request, on a covering letter in all capital letters and bold-face type, that
Landlord's failure to respond or request additional information from Tenant
within an additional ten (10) business days shall be deemed an approval (such
notice is hereinafter referred to as an "Automatic Approval Notice"). If
Landlord fails to respond or request additional information from Tenant within
such additional ten (10) business days, such failure to so respond shall be
deemed a consent to the Transfer. If Landlord requests additional information,
Landlord shall respond within the later of (i) ten (10) business days after
receipt of all requested information, or (ii) the expiration of the sixty (60)
day period set forth above; and Landlord's failure to do so shall be deemed a
consent to the Transfer so long as such additional information shall include (on
a covering letter in all capital letters and in bold-face type) an Automatic
Approval Notice. If Landlord consents to any such Transfer, such consent shall
be given on Landlord's form of consent (which consent shall include, among other
things, an acknowledgment by the transferee that its rights arise through and
are limited by the Lease, that the transferee agrees to comply with the Lease
(with such exceptions as may be consented to by Landlord), and a written
acknowledgment by Tenant evidencing that Tenant is not released from its
obligations under this Lease), which consent document shall be executed by
Tenant and the transferee of Tenant. It shall nevertheless be a condition to the
deemed effectiveness thereof that Landlord be furnished with a fully executed
copy of the full documentation governing the Transfer, in the form and substance
approved by Landlord, and that Tenant shall pay Landlord's expenses in
connection with the proposed Transfer. It shall not be unreasonable for Landlord
to object to Transfer document provisions which, inter alia, attempt to make
Landlord a party to the Transfer document or impose any obligation on Landlord
to the subtenant.
7.4. RECAPTURE. Upon receipt of Tenant's request for consent to a
proposed Transfer, Landlord may elect to recapture the Transfer Space.
Landlord's election to recapture must be in writing and delivered to Tenant
within thirty (30) days of Landlord's receipt of Tenant's request for permission
to transfer all or a portion of the Demised Premises. Landlord's recapture shall
be effective (the "Effective Date") on a date selected by Landlord, which date
shall be (i) on or before the date which is thirty (30) days after the proposed
effective date of the Transfer, as specifically set forth in Tenant's written
request to Landlord for consent to a
-23-
proposed Transfer, or (ii) if Tenant's written request to Landlord for consent
to a proposed Transfer does not contain a proposed effective date, then on or
before the date which is thirty (30) days after Landlord's election to recapture
the Transfer Space; and with respect to the Transfer Space, this Lease shall be
terminated and Tenant shall be released under this Lease, subject to any
continuing liabilities or obligations of Tenant which remain delinquent or
uncured with respect to the period prior to the Effective Date.
7.5. CONDITIONS. In the event Landlord consents to a Transfer of all
or any portion of the Demised Premises, Landlord may condition its consent,
inter alia, on agreement by Tenant and its assignee and/or sublessee, as the
case may be, that fifty (50%) percent of any rental payable under such Transfer
arrangement which exceeds the amount of rental payable hereunder be payable to
Landlord (after deduction by Tenant for the reasonable and necessary costs
associated with such Transfer amortized over the remaining term of the Lease) as
consideration of the granting of such consent. Nothing herein shall, however, be
deemed to be a consent by Landlord of any Transfer or a waiver of Landlord's
right not to consent to any Transfer. Any purported Transfer not in accordance
with the terms hereof shall at Landlord's option, to be exercised at any time
after Landlord becomes aware of any such purported Transfer, be void, and may at
Landlord's option be treated as an event of default hereunder.
7.6. SPECIAL CONDITIONS FOR TRANSFERS TO AFFILIATES OF TENANT.
Notwithstanding anything to the contrary set forth above, Tenant shall be
permitted without Landlord's prior written consent, and subject to the terms of
this subparagraph 7.6, to transfer all or a portion of the Demised Premises to
an "Affiliate" of Tenant. For purposes of this subparagraph, Affiliate shall
mean; (i) a corporation which owns fifty percent (50%) of the outstanding common
stock of Tenant, or (ii) a corporation which has fifty percent (50%) of its
common stock owned by Tenant, or (iii) a partnership which owns fifty percent
(50%) of the common stock of Tenant, or (iv) a partnership which has fifty
percent (50%) or more of its interest in partnership profits owned by Tenant, or
(v) an entity which is the surviving entity in a merger pursuant to state
corporation or partnership law with the Tenant, or (vi) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ or any
of its affiliates or subsidiaries. The effectiveness of such Transfer to an
Affiliate of Tenant shall nevertheless be conditioned on the following: (a)
Landlord receiving a fully executed copy of the full documentation governing the
Transfer, in the form and substance approved by Landlord, and (b) such sublessee
shall acknowledge that its rights arise through and are limited by the Lease,
and shall agree to comply with the Lease (with such exceptions as may be
consented to by Landlord), and (c) a written acknowledgment by Tenant evidencing
that Tenant is not released from its obligations under this Lease.
7.7. NO RELEASE. Notwithstanding any assignment of this Lease or
subletting of all or part of the Demised Premises, whether or not Landlord's
consent is required and/or obtained, the tenant specifically named in the
introductory paragraph of this Lease shall remain fully liable under all of the
terms and provisions of this Lease.
8. FIRE OR OTHER CASUALTY. In case of damage to the Demised Premises or
those portions of the Building providing access or essential services thereto,
by fire or other casualty, Landlord shall, at its expense, cause the damage to
be repaired to a condition as nearly as practicable to that existing prior to
the damage, with reasonable speed and diligence, subject to delays which may
arise by reason of adjustment of loss under insurance policies, Governmental
-24-
Regulations, and for delays beyond the control of Landlord, including a "force
majeure" event (as defined below). Landlord shall not, however, be obligated to
repair, restore, or rebuild any of Tenant's property or any alterations or
additions made by or on behalf of Tenant. Landlord shall not be liable for any
inconvenience or annoyance to Tenant, or Tenant's visitors, or injury to
Tenant's business resulting in any way from such damage or the repair thereof
except, to the extent and for the time that the Demised Premises are thereby
rendered untenantable, the rent shall proportionately ▇▇▇▇▇. In the event the
damage shall involve the Building generally and shall be so extensive that
Landlord shall decide, at its sole discretion, not to repair or rebuild the
Building, or if the casualty shall not be of a type insured against under
standard fire policies with extended type coverage, or if the holder of any
mortgage, deed of trust or similar security interest covering the Building shall
not permit the application of adequate insurance proceeds for repair or
restoration, this Lease shall, at the sole option of Landlord, exercisable by
written notice to Tenant given within sixty (60) days after Landlord is notified
of the casualty and to the extent thereof, be terminated as of a date specified
in such notice (which shall not be more than ninety [90] days thereafter), and
the rent (taking into account any abatement as aforesaid) shall be adjusted to
the termination date and Tenant shall thereupon promptly vacate the Demised
Premises. Furthermore, in the case of any such casualty, Landlord shall promptly
furnish to Tenant an estimate of the time necessary to repair and restore the
Building so as to permit the use of the Demised Premises for the use permitted
hereunder. If such estimated period for completion of the repair and restoration
of the Building exceeds three hundred (300) days from the date of casualty,
Tenant may, but only within twenty (20) days after Tenant's receipt of the
estimate, terminate this Lease by written notice to Landlord. If Tenant does not
so terminate, this Lease (subject to the provisions set forth herein), shall
remain in effect regardless of whether the actual restoration time differs from
the estimate; provided, however, in the event the actual restoration time
exceeds three hundred thirty (330) days from the date of the casualty, Tenant
shall have the further right to terminate this Lease by written notice to
Landlord, but only within twenty (20) days after the expiration of such three
hundred thirty (330) day period.
9. REGARDING INSURANCE AND LIABILITY.
9.1. DAMAGE IN GENERAL. Tenant agrees that Landlord (and its
successors and/or assigns) and its Building manager and their respective
partners, officers, employees and agents and any mortgagees shall not be liable
to Tenant, and Tenant hereby releases such parties, for any personal injury or
damage to or loss of personal property in the Demised Premises from any cause
whatsoever unless such damage, loss or injury is the result of the negligence or
willful misconduct of Landlord (or its successors and/or assigns), its Building
manager, or their partners, officers, employees or agents or any mortgagees, and
Landlord (and its successors and/or assigns) and its Building manager and their
partners, officers, employees or agents or any mortgagees shall not be liable to
Tenant for any such damage or loss whether or not the result of their negligence
or willful misconduct to the extent Tenant is compensated therefor by Tenant's
insurance or would have been compensated therefor under commonly available
commercial policies, and Landlord shall in no event be liable to Tenant for any
consequential damages.
9.2. INDEMNITY.
(A) Tenant shall defend, indemnify and save harmless Landlord
(and its successors and/or assigns) and its agents and employees against and
from all liabilities,
-25-
obligations, damages, penalties, claims, costs, charges and expenses, including
reasonable attorneys' fees, which may be imposed upon or incurred by or asserted
against Landlord and/or its agents or employees by reason of any of the
following which shall occur during the term of this Lease, or during any period
of time prior to the Commencement Date hereof or after the expiration date
hereof when Tenant may have been given access to or possession of all or any
part of the Demised Premises:
(1) any work or act done in, on or about the Demised
Premises or any part thereof at the direction of Tenant, its agents,
contractors, subcontractors, servants, employees, licensees or invitees, except
if such work or act is done or performed by Landlord or its agents or employees;
(2) any negligence or other wrongful act or omission on
the part of Tenant or any of its agents, contractors, subcontractors, servants,
employees, subtenants, licensees or invitees;
(3) any accident, injury or damage to any person or
property occurring in, on or about the Demised Premises or any part thereof,
unless caused by the negligence or willful misconduct of Landlord, its employees
or agents; and
(4) any failure on the part of Tenant to perform or
comply with any of the covenants, agreements, terms, provisions, conditions or
limitations contained in this Lease on its part to be performed or complied
with.
(B) Landlord shall defend, indemnify and save harmless Tenant
and its agents and employees against and from all liabilities, obligations,
damages, penalties, claims, costs, charges and expenses, including reasonable
attorneys' fees, which may be imposed upon or incurred by or asserted against
Tenant and/or its agents or employees by reason of any of the following which
shall occur during the term of this Lease:
(1) any negligence or other intentional wrongful act on
the part of Landlord or any of its agents, contractors, subcontractors,
servants, employees, subtenants, licensees or invitees; and
(2) any accident, injury or damage to any person or
property occurring in an area in the Building under the exclusive custody and
control of Landlord, unless caused by the negligence or willful misconduct of
Tenant, its employees or agents;
provided, however, that Landlord shall not be liable for and shall not indemnify
and protect Tenant with respect to any losses associated with Tenant's lost
business opportunities, lost profits, business losses or any consequential
damages. The foregoing indemnity by Landlord shall only apply to liabilities,
obligations, damages, penalties, claims, costs, charges and expenses, including
reasonable attorneys' fees, to the extent the same are not covered by the
insurance Tenant is required to carry hereunder (and, if Tenant fails in any
respect to secure and maintain the insurance required hereunder, only to the
extent the same would not have been covered if Tenant had secured and maintained
the insurance required hereunder).
-26-
9.3. TENANT'S INSURANCE. At all times during the term hereof, Tenant
shall maintain in full force and effect with respect to the Demised Premises and
Tenant's use thereof, commercial general liability insurance, naming Landlord,
Landlord's agent and any mortgagees (and such other parties as Landlord may
request) as additional insureds, covering injury to persons in amounts at least
equal to $10,000,000.00 per occurrence and $10,000,000.00 general aggregate.
Each such policy shall provide that it shall not be cancelable without at least
thirty (30) days prior written notice to Landlord and to any mortgagee named in
an endorsement thereto and shall be issued by an insurer and in a form Accord 27
(or equivalent) to Landlord. Tenant shall lodge with Landlord duplicate
originals or certificates of such insurance, in a form acceptable to Landlord,
at or prior to the Commencement Date of the term hereof, together with evidence
of paid-up premiums, and shall lodge with Landlord renewals thereof at least
fifteen (15) days prior to expiration. In addition to the foregoing, Tenant
shall also be responsible, at Tenant's own cost, to keep and maintain (i)
insurance in respect of and covering Tenant's own furniture, furnishings,
equipment and other personal property, and all improvements made by or on behalf
of Tenant, all insured for the replacement cost thereof, against all risks and
hazards, including but not limited to sprinkler and leakage damage, and theft,
and (ii) workers' compensation insurance with respect to and covering all
employees of Tenant. Tenant shall also carry, at Tenant's own cost and expense,
such other insurance, in amounts and for coverages and on such other terms as
Landlord may from time to time deem commercially reasonable and appropriate.
Tenant assumes all risk of loss of any or all of its personal property.
9.4. LANDLORD'S INSURANCE. Throughout the term of this Lease,
Landlord will insure the Building (excluding any property with respect to which
Tenant is obligated to insure pursuant to Paragraph 9.3 above) with, what is
referred to as, "All Risk" Insurance covering the Building against damage by
fire and standard extended coverage perils and public liability insurance, and
shall carry rent insurance, and boiler and machinery insurance coverage;
provided, however, that the foregoing insurances shall only be required
hereunder to the extent such insurance is available at reasonable rates. All
insurance coverage required by Landlord shall be in such reasonable amounts and
with such reasonable deductibles as are required by any mortgagee or ground
lessor (if any), or if none, as are determined by Landlord in its good-faith
discretion, taking into consideration the insurance and deductibles as would be
carried by a prudent owner of a similar buildings in the general area of the
Building. Landlord may, but shall not be obligated or required to, carry any
excess or other forms of insurance relating to the Building as it or the
mortgagee or ground lessor (if any) of Landlord may require or reasonably
determine are available. All insurance carried by Landlord relating to the
Building or common areas (including, without limitation, insurance in excess of
that required hereunder) shall be included as an Operating Expense pursuant to
Paragraph 4.1 of this Lease. Notwithstanding its inclusion as an Operating
Expense or any contribution by Tenant to the cost of insurance premiums by
Tenant as provided herein, Tenant acknowledges that it has no right to receive
any proceeds from any such insurance policies carried by Landlord. Tenant
further acknowledges that the exculpatory provisions of this Lease as set forth
in Paragraph 9 and the provision regarding Tenant's insurance are designed to
insure adequate coverage as to Tenant's property and business without regard to
fault and to avoid Landlord's obtaining similar coverage for said loss for its
negligence or that of its agents, servants or employees which could result in
additional costs includable as part of Operating Expenses which are payable by
Tenant. Landlord will not be required to carry insurance of any kind on Tenant's
personal property, equipment furniture or improvements of Tenant under this
Lease and it shall be Tenant's responsibility (at Tenant's sole
-27-
cost and expense) to repair any damage thereto. Landlord's insurance may be
maintained through blanket policies of insurance with Landlord and Landlord's
affiliates and through self-insurance programs of Landlord.
9.5. WAIVER OF SUBROGATION. Each party hereto hereby waives any and
every claim which arises or which may arise in its favor and against the other
party hereto during the term of this Lease or any extension or renewal thereof
for any and all loss of, or damage to, any of its property located within or
upon or constituting a part of the Building, to the extent that such loss or
damage is covered under an insurance policy or policies and to the extent such
policy or policies contain provisions permitting such waiver of claims. Each
party shall cause its insurers to issue policies containing such provisions.
9.6. LIMITATION ON PERSONAL LIABILITY. Anything in this Lease,
either expressed or implied, to the contrary notwithstanding, Tenant
acknowledges and agrees that each of the covenants, undertakings and agreements
herein made on the part of Landlord, while in form purporting to be covenants,
undertakings and agreements of Landlord, are, nevertheless, made and intended
not as personal covenants, undertakings and agreements of Landlord, or for the
purpose of binding Landlord personally or the assets of Landlord, except
Landlord's interest in the Building and the Center and if applicable, any
insurance proceeds; and that no personal liability or personal responsibility is
assumed by, nor shall at any time be asserted or enforceable against Landlord,
any partner of Landlord, any parent or subsidiary of Landlord or any parent,
subsidiary or partner of any partner of Landlord, or any of their respective
heirs, personal representatives, successors and assigns, or officers or
employees on account of this Lease or on account of any covenant, undertaking or
agreement of Landlord in this Lease contained, all such personal liability and
personal responsibility, if any, being expressly waived and released by Tenant.
9.7. SUCCESSORS IN INTEREST TO LANDLORD, MORTGAGEES. The term
"Landlord" as used in this Lease means the fee owner of the Building, or, if
different, the party holding and exercising the right, as against all others
(except space tenants of the Building) to possession of the entire Building.
Landlord as above-named represents that it is the holder of such rights as of
the date hereof. In the event of the voluntary or involuntary transfer of such
ownership or right to a successor-in-interest of Landlord, Landlord shall be
freed and relieved of all liability and obligation hereunder which shall
thereafter accrue and Tenant shall look solely to such successor-in-interest for
the performance of the covenants and obligations of the Landlord hereunder which
shall thereafter accrue. The liability of any such successor in interest to
Landlord under or with respect to this Lease shall be strictly limited to and
enforceable only out of its or their interest in the Building and Center, and
shall not be enforceable out of any other assets. No mortgagee or ground lessor
which shall succeed to the interest of Landlord hereunder (either in terms of
ownership or possessory rights) shall: (i) be liable for any previous act or
omission of a prior Landlord, (ii) be subject to any rental offsets or defenses
against a prior Landlord, (iii) be bound by any amendment of this Lease made
without its written consent, (iv) be bound by payment by Tenant of rent in
advance in excess of one (1) month's rent, (v) be liable for any construction of
the improvements to be made to the Demised Premises, or for any allowance or
credit to Tenant for rent, construction costs or other expenses, or (vi) be
liable for any security deposit not actually received by it. Subject to the
foregoing, the provisions hereof shall be binding upon and inure to the benefit
of the successors and assigns of Landlord.
-28-
9.8. SURVIVAL. The provisions of this Paragraph 9 shall survive
termination of this Lease.
10. EMINENT DOMAIN. If the whole or a substantial part of the Building
shall be taken or condemned for public or quasi-public use under any statute or
by right of eminent domain or private purchase in lieu thereof by any competent
authority, Tenant shall have no claim against Landlord and shall not have any
claim or right to any portion of the amount that may be awarded as damages or
paid as a result of any such condemnation or purchase; and all right of the
Tenant to damages therefor are hereby assigned by Tenant to Landlord. Landlord
shall, upon receiving written notification from the condemning authority
relating to a taking or condemnation of the Building, notify Tenant of the same
within ten (10) business days of Landlord's receipt of such notice. The
foregoing shall not, however, deprive Tenant of any separate award for moving
expenses, business dislocation damages or for any other award which would not
reduce the award payable to Landlord. Upon the date the right to possession
shall vest in the condemning authority, this Lease shall, at the option of
Landlord or (only in the case of condemnation or taking of the entire Building
or such partial taking as results in the untenantability of the Demised
Premises) at the option of Tenant, cease and terminate with rent adjusted to
such date and Tenant shall have no claim against Landlord for the value of any
unexpired term of this Lease.
11. INSOLVENCY. Each of the following shall constitute an event of default
by Tenant under this Lease, upon the occurrence of any such event of default
Landlord shall have, without need of any notice, the rights and remedies
enunciated in Paragraph 12 of this Lease for events of default hereunder: (i)
the commencement of levy, execution or attachment proceedings against Tenant,
any principal (which shall be defined as any individual or entity having a
direct or indirect ownership interest in Tenant of more than 25%) thereof or any
partner therein or any surety or guarantor thereof (hereinafter a "Surety") or
any of the assets of Tenant, or the application for or appointment of a
liquidator, receiver, custodian, sequester, conservator, trustee, or other
similar judicial officer; or (ii) the insolvency, under either the bankruptcy or
equity definition, of Tenant or any principal thereof or partner therein or any
Surety; or (iii) the assignment for the benefit of creditors, or the admission
in writing of an inability to pay debts generally as they become due, or the
ordering of the winding-up or liquidation of the affairs of Tenant or any
principal thereof or partner therein or any Surety; or (iv) the commencement of
a case by or against Tenant or any principal thereof or partner therein or any
Surety under any insolvency, bankruptcy, creditor adjustment, debtor
rehabilitation or similar laws, state or federal, or the determination by any of
them to request relief under any insolvency, bankruptcy, creditor adjustment,
debtor rehabilitation or similar proceeding, state or federal, including,
without limitation, the consent by any of them to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian, sequester or
similar official for it or for any of its respective property or assets (unless,
in the case of involuntary proceedings, the same shall be dismissed within
thirty [30] days after institution).
12. DEFAULT.
12.1. EVENTS OF DEFAULT. If Tenant fails to pay rent or any other
sums payable to Landlord hereunder when due and such default shall continue for
five (5) days after it is due, or if Tenant shall fail to perform or observe any
of the other covenants, terms or conditions
-29-
contained in this Lease within twenty (20) days (or such longer period as is
reasonably required to correct any such default, provided Tenant promptly
commences and diligently continues to effectuate a cure [but in any event within
thirty (30) days]) after written notice thereof by Landlord; provided, however,
that Landlord shall not be required to give any such notice more than once
within any twelve (12) month period, and provided that the events hereinafter
enumerated shall be deemed events of default under this Lease without any
notice, grace or cure period: (a) if any of the events specified in Paragraph 11
occur, or (b) if Tenant fails to take actual bona-fide occupancy of the Demised
Premises within two hundred seventy (270) days after the Commencement Date, or
Tenant vacates or abandons the Demised Premises during the term hereof without
(with respect to either events) properly maintaining the Demised Premises in
accordance with the Lease and properly operating the building systems and
equipment within the Demised Premises on a regular basis, or (c) if any
corporate surety or guarantor of this Lease merges with another entity, or
liquidates or dissolves or changes control or if any surety or guarantor of this
Lease fails to comply with all of the provisions of its surety ship or guaranty
agreement, then, and in any of such cases (notwithstanding any former breach of
covenant or waiver thereof in a former instance) (each of the foregoing an
"Event of Default"), Landlord, in addition to all other rights and remedies
available to it by law or equity or by any other provisions hereof, may at any
time thereafter:
(A) upon three (3) days' notice to Tenant, declare to be
immediately due and payable, on account of the rent and other charges herein
reserved for the balance of the term of this Lease (taken without regard to any
early termination of such term on account of an Event of Default), a sum equal
to the Accelerated Rent Component (as hereinafter defined), in which event
Tenant shall remain liable to Landlord as hereinafter provided; and/or
(B) whether or not Landlord has elected to recover the
Accelerated Rent Component, terminate this Lease on at least five (5) days'
notice to Tenant and, on the date specified in such notice, this Lease and the
term hereby demised and all rights of Tenant hereunder shall expire and
terminate and Tenant shall thereupon quit and surrender possession of the
Demised Premises to Landlord in the condition elsewhere herein required in which
event Tenant shall remain liable to Landlord as herein provided.
12.2. ACCELERATED RENT COMPONENT. For purposes hereof, the
"Accelerated Rent Component" shall mean the aggregate of:
(A) all rent and other charges, payments, costs and expenses
due from Tenant to Landlord and in arrears at the time of the election of
Landlord to recover the Accelerated Rent Component;
(B) the minimum rent reserved for the then entire unexpired
balance of the term of this Lease (taken without regard to any early termination
of the term by virtue of an Event of Default), plus all other charges, payments,
costs and expenses herein agreed to be paid by Tenant up to the end of such term
which shall be capable of precise determination at the time of Landlord's
election to recover the Accelerated Rent Component; and
(C) Landlord's good faith estimate of all charges, payments,
costs and expenses herein agreed to be paid by Tenant up to the end of such term
which shall not be
-30-
capable of precise determination as aforesaid (and for such purposes no estimate
of any component of additional rent to accrue pursuant to the provisions of
Paragraph 4 hereof shall be less than the amount which would be due if each such
component continued at the highest monthly rate or amount in effect during the
twelve [12] months immediately preceding the Event of Default).
12.3. RE-ENTRY. In any case in which this Lease shall have been
terminated, or in any case in which Landlord shall have elected to recover the
Accelerated Rent Component and any portion of such sum shall remain unpaid,
Landlord may, without further notice, enter upon and repossess the Demised
Premises, by force, summary proceedings, ejectment or otherwise, and may
dispossess Tenant and remove Tenant and all other persons and property from the
Demised Premises and may have, hold and enjoy the Demised Premises and the rents
and profits there from. Landlord may, in its own name, as agent for Tenant, if
this Lease has not been terminated, or in its own behalf, if this Lease has been
terminated, relet the Demised Premises or any part thereof for such term or
terms (which may be greater or less than the period which would otherwise have
constituted the balance of the term of this Lease) and on such terms, conditions
and provisions (which may include concessions or free rent) as Landlord in its
sole discretion may determine. Landlord may, in connection with any such
reletting, cause the Demised Premises to be redecorated, altered, divided,
consolidated with other space or otherwise changed or prepared for reletting. At
Landlord's option, such reletting shall or shall not be deemed a surrender and
acceptance of the Demised Premises.
12.4. CONTINUING LIABILITY. Tenant shall, with respect to all
periods of time up to and including the expiration of the term of this Lease (or
what would have been the expiration date in the absence of default or breach)
remain liable to Landlord as follows:
(A) In the event of termination of this Lease on account of an
Event of Default, Tenant shall remain liable to Landlord for damages equal to
the rent and other charges payable under this Lease by Tenant as if this Lease
were still in effect, less the net proceeds of any reletting after deducting all
costs incident thereto (including without limitation all repossession costs,
brokerage and management commission, operating and legal expenses and fees,
alteration costs and expenses of preparation for reletting, and interest
relating thereto) and to the extent such damages shall not have been recovered
by Landlord by virtue of payment by Tenant of the Accelerated Rent Component
(but without prejudice to the right of Landlord to demand and receive the
Accelerated Rent Component), such damages shall be payable to Landlord monthly
upon presentation to Tenant of a ▇▇▇▇ for the amount due.
(B) In the event and so long as this Lease shall not have been
terminated after an Event of Default, the rent and all other charges payable
under this Lease shall be reduced by the net proceeds of any reletting by
Landlord (after deducting all costs incident thereto as above set forth) and by
any portion of the Accelerated Rent Component paid by Tenant to Landlord, and
any amount due to Landlord shall be payable monthly upon presentation to Tenant
of a ▇▇▇▇ for the amount due.
12.5. CREDIT. In the event Landlord, after an Event of Default,
shall recover the Accelerated Rent Component from Tenant and it shall be
determined at the expiration of the term of this Lease (taken without regard to
early termination for an Event of Default) that a
-31-
credit is due Tenant because the net proceeds of reletting, as aforesaid, plus
the amounts paid to Landlord by Tenant exceed the aggregate of rent and other
charges accrued in favor of Landlord to the end of such term, Landlord shall
retain such excess.
12.6. NO DUTY TO RELET. Landlord shall in no event be responsible or
liable for any failure to relet the Demised Premises or any part thereof, or for
any failure to collect any rent due upon a reletting, except to the extent of
Landlord's obligations under law. Without limiting the foregoing general
statement of Landlord's rights in such regard, Landlord shall have no obligation
to relet all or any portion of the Demised Premises in preference or priority to
any other space Landlord may have available for rent or lease elsewhere in the
Center or otherwise.
12.7. CONFESSION OF JUDGMENT. UPON FIVE (5) BUSINESS DAYS NOTICE,
LANDLORD SHALL HAVE THE FOLLOWING RIGHTS TO CONFESS JUDGMENT AGAINST TENANT AND
ALL PERSONS CLAIMING THROUGH TENANT, FOR POSSESSION OF THE DEMISED PREMISES:
(A) WHEN THIS LEASE SHALL BE TERMINATED BY REASON OF AN EVENT
OF DEFAULT BY TENANT AFTER ANY APPLICABLE NOTICE AND CURE PERIOD AND ANY AGREED
UPON EXTENSIONS, EITHER DURING THE ORIGINAL TERM OF THIS LEASE OR ANY RENEWAL OR
EXTENSION THEREOF, AND ALSO WHEN THE TERM HEREBY CREATED OR ANY EXTENSION
THEREOF SHALL HAVE EXPIRED, IT SHALL BE LAWFUL FOR ANY ATTORNEY TO APPEAR FOR
TENANT IN ANY AND ALL SUITS OR ACTIONS WHICH MAY BE BROUGHT FOR POSSESSION
AND/OR EJECTMENT; AND AS ATTORNEY FOR TENANT TO CONFESS JUDGMENT IN EJECTMENT
AGAINST TENANT AND ALL PERSONS CLAIMING UNDER TENANT FOR THE RECOVERY BY
LANDLORD OF POSSESSION OF THE DEMISED PREMISES, FOR WHICH THIS LEASE SHALL BE
LANDLORD'S SUFFICIENT WARRANT. UPON SUCH CONFESSION OF JUDGMENT FOR POSSESSION,
IF LANDLORD SO DESIRES, A WRIT OF EXECUTION OR OF POSSESSION MAY ISSUE
FORTHWITH, WITHOUT ANY PRIOR WRIT OR PROCEEDINGS WHATSOEVER. IF FOR ANY REASON
AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED, THE SAME SHALL BE DETERMINED AND
THE POSSESSION OF THE DEMISED PREMISES SHALL REMAIN IN OR BE RESTORED TO TENANT,
THEN LANDLORD SHALL HAVE THE RIGHT UPON ANY SUBSEQUENT OR CONTINUING EVENT OF
DEFAULT, OR AFTER EXPIRATION OF THE LEASE, OR UPON THE TERMINATION OF THIS LEASE
AS HEREINBEFORE SET FORTH, TO BRING ONE OR MORE FURTHER ACTIONS AS HEREINBEFORE
SET FORTH TO RECOVER POSSESSION OF THE DEMISED PREMISES.
(B) In any action of ejectment, Landlord shall cause to be
filed in such action an affidavit made by Landlord or someone acting for
Landlord setting forth the facts necessary to authorize the entry of judgment,
of which facts such affidavit shall be conclusive evidence. If a true copy of
this Lease shall be filed in such action (and the truth of the copy as asserted
in the affidavit of Landlord shall be sufficient evidence of same), it shall not
be necessary to file the original Lease as a warrant of attorney, any rule of
court, custom or practice to the contrary notwithstanding.
(C) Intentionally Omitted.
-32-
(D) The right to enter judgment against Tenant and to enforce
all of the other provisions of this Lease herein provided for, at the option of
any assignee of this Lease, may be exercised by any assignee of Landlord's
right, title and interest in this Lease in Tenant's own name, notwithstanding
the fact that any or all assignments of such right, title and interest may not
be executed and/or witnessed in accordance with the Act of Assembly of May 28,
1715, 1 Sm. L. 94, and all supplements and amendments thereto that have been or
may hereafter be passed. Tenant hereby expressly waives the requirements of such
Act of Assembly and any and all laws regulating the manner and/or form in which
such assignments shall be executed and witnessed.
(E) Tenant acknowledges that it has been represented by
counsel in connection with the negotiation of this Lease, that it has read and
discussed with such counsel the provisions herein relating to confession of
judgment, and that it understands the nature and consequences of such
provisions.
12.8. BANKRUPTCY. Nothing contained in this Lease shall limit or
prejudice the right of Landlord to prove for and obtain as damages incident to a
termination of this Lease, in any bankruptcy, reorganization or other court
proceedings, the maximum amount allowed by any statute or rule of law in effect
when such damages are to be proved.
12.9. WAIVER OF DEFECTS. Tenant waives the right to trial by jury
and any notices to quit as may be specified in the Landlord and Tenant Act of
Pennsylvania, Act of April 6, 1951 (68 P.S.C.A. Section 250.101 et seq.), as the
same may have been or may hereafter be amended, and agrees that the notices
provided in this Lease shall be sufficient in any case where a longer period may
be statutorily specified. The acceptance by Landlord of any partial payment(s)
by or for Tenant hereunder shall not constitute Landlord's acceptance of such
payment(s) as a satisfaction of Tenant's payment obligation (notwithstanding any
statement to the contrary on any correspondence accompanying such payment(s)
and/or note(s) written on any check).
12.10. NON-WAIVER BY LANDLORD. The failure of Landlord to insist in
any one or more instances upon the strict performance of any one or more of the
agreements, terms, covenants, conditions or obligations of this Lease, or to
exercise any right, remedy or election herein contained, shall not be construed
as a waiver or relinquishment in the future of such performance or exercise, but
the same shall continue and remain in full force and effect with respect to any
subsequent breach, act or omission.
12.11. PARTIAL PAYMENT. No payment by Tenant or receipt by Landlord
of a lesser amount than the correct minimum rent or additional rent due
hereunder shall be deemed to be other than a payment on account, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment be deemed to effect or evidence an accord and satisfaction, and Landlord
may accept such check or payment without prejudice to Landlord's right to
recover the balance or pursue any other remedy in this Lease or at law provided.
12.12. OVERDUE PAYMENTS. If any payment required to be made by
Tenant to Landlord under this Lease shall not have been received by Landlord by
5:00 pm local time on the fifth (5th) day after the date such payment is due,
then (i) in addition to such payment, and in
-33-
order to partially compensate Landlord for the extra expense incurred in the
handling of overdue payments, Tenant shall pay Landlord a late fee equal to the
greater of (a) five percent (5%) of such overdue payment, or (b) two hundred
fifty dollars ($250); and (ii) such overdue payment shall bear interest, from
the date such overdue payment was due until it is paid, at the higher of (a)
five percent (5%) above the highest prime rate published in the Wall Street
Journal, if available (and, if not available, then such comparable substitute
rate as may be selected by Landlord), from time to time, and (b) the rate of
eighteen percent (18%) per annum (or, if lower, the highest legal rate);
provided, however, that if on two (2) occasions in any calendar year a payment
required to be made by Tenant to Landlord shall not have been received by
Landlord by 5:00 pm local time on the date such payment is due, then, and for
the remainder of the Lease term, Tenant shall not be entitled to the five (5)
day grace period set forth above in this Section, and the late fee shall be
charged, and interest shall commence to accrue, if a payment is not received by
Landlord by 5:00 pm local time on the date such payment is due. The late fee and
interest set forth in this Section shall not affect any other right or remedy
available to Landlord as a result of a failure by Tenant to make any payment as
required under this Lease.
12.13. CUMULATIVE REMEDIES. No right or remedy herein conferred upon
or reserved to Landlord is intended to be exclusive of any other right or remedy
herein or by law provided, but each shall be cumulative and in addition to every
other right or remedy given herein or now or hereafter existing at law or in
equity or by statute.
13. SUBORDINATION.
13.1. GENERAL. This Lease is and shall be subject and subordinate to
all ground or underlying leases of the entire Building (or of the entire Center)
and to all mortgages, deeds of trust and similar security documents which may
now or hereafter be secured upon the Building (or upon the Center), and to all
renewals, modifications, consolidations, replacements and extensions thereof.
This clause shall be self-operative and no further instrument of subordination
shall be required by any lessor or mortgagee, but in confirmation of such
subordination, Tenant shall execute, within ten (10) days after request, any
certificate that Landlord may reasonably require acknowledging such
subordination. Notwithstanding the foregoing, the party holding the instrument
to which this Lease is subordinate shall have the right to recognize and
preserve this Lease in the event of any foreclosure sale or possessory action,
and in such case, this Lease shall continue in full force and effect at the
option of the party holding the superior lien and Tenant shall attorn to such
party and shall execute, acknowledge and deliver any instrument that has for its
purpose and effect the confirmation of such attornment. Tenant shall send to any
mortgagee or ground lessor of the Building designated by Landlord a copy of any
notice given by Tenant to Landlord alleging a material breach by Landlord in its
obligations under this Lease.
13.2. RIGHTS OF MORTGAGEE. In the event of any act or omission of
Landlord which would give Tenant the right, immediately or after lapse of a
period of time, to cancel or terminate this Lease, or to claim a partial or
total eviction, Tenant shall not exercise such right (i) until it has given
written notice of such act or omission to the holder of each such mortgage and
ground lease whose name and address shall previously have been furnished to
Tenant in writing, and (ii) until a reasonable period for remedying such act or
omission by the holder of each such mortgage and ground lease shall have elapsed
following the giving of such notice (which reasonable period shall in no event
be less than the period to which Landlord would be entitled,
-34-
under this Lease or otherwise, after similar notice, to effect such remedy plus
an additional period of time of thirty (30) days for a monetary default, or the
number of days reasonably required for the holder of each such mortgage and
ground lease to obtain possession of the Building and to cure such default (but
in no event less than an additional 45 days period) for any other default).
Nothing herein shall obligate any such mortgagee to remedy any alleged default
of Landlord.
13.3. MODIFICATIONS. If, in connection with obtaining, continuing or
renewing financing for which the Building, Center or the Demised Premises or any
interest therein represents collateral in whole or in part, a banking, insurance
or other lender shall request reasonable modifications of this Lease as a
condition of such financing, Tenant will not unreasonably withhold, delay,
condition or defer its consent thereto, provided that such modifications do not
increase the monetary obligations of Tenant hereunder, change the business terms
of this Lease or adversely affect to a material degree Tenant's leasehold
interest hereby created.
13.4. SNDA For the benefit of Tenant (and upon Tenant's request
therefor), Landlord shall use commercially reasonable efforts to obtain from its
future mortgagee, if any, a Subordination, Non-Disturbance and Attornment
Agreement (a "SNDA"), to be entered into between Landlord, Tenant and Landlord's
future mortgagee, under which, among other things, this Lease and the rights of
Tenant hereunder shall not be adversely affected or modified by foreclosure or
the exercise of any other right or remedy by the mortgagee so long as Tenant
shall not be in default under any of the provisions of this Lease beyond any
applicable period of grace, and under which Tenant shall attorn to and recognize
the mortgagee or any purchaser at foreclosure sale or other
successor-in-interest to Landlord as Tenant's landlord hereunder. Landlord also
agrees to use commercially reasonable efforts to obtain a SNDA from each
additional mortgagee. Each SNDA shall be in the form required by the lender.
Tenant's obligations under this Lease shall not be affected by Landlord's
failure to obtain a SNDA from its current or any future mortgagee. Tenant
covenants and agrees to execute and deliver to Landlord or to the lender a SNDA
within ten (10) days after a written request therefor.
14. NOTICES. All notices and other communications hereunder, to be
effective, must be in writing (whether or not a writing is expressly required
hereby), and must be either (i) hand delivered, or (ii) sent by a recognized
national overnight courier service, fees prepaid, or (iii) sent by United States
registered or certified mail, return receipt requested, postage prepaid, or (iv)
sent by facsimile transmission (with a confirmation copy immediately to follow
by any of the methods of delivery set forth above); in all of the foregoing
cases to the following respective addresses:
14.1. IF TO LANDLORD:
Radnor Properties-145 KOP, L.P.
c/o The ▇▇▇▇▇▇▇▇▇▇ Company, L.P.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-▇▇-
▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇.
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
MMBC Equity Holdings II, LP
c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and Company Incorporated
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Boston Capital Institutional Advisors, LLC
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Managing Director
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ Procter LLP
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, P.C.
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
14.2. IF TO TENANT:
Centocor, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, P.E.
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Office of General Counsel
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address or to the attention of such other person as either
party may hereafter give the other for such purpose. Notices will be deemed to
have been given (a) when so delivered (by hand delivery or courier service), or
(b) three days after being so mailed (by registered or certified mail as
aforesaid).
15. HOLDING OVER. Should Tenant continue to occupy the Demised Premises
after expiration of the Term of this Lease or any renewal or renewals thereof,
or after a forfeiture or
-36-
other termination thereof, such tenancy shall (without limitation on any of
Landlord's rights or remedies therefor) be one at sufferance from month to month
at a minimum monthly rent equal to one hundred twenty five percent (125%) for
the first ninety days and one hundred fifty percent (150%) thereafter of the
greater of (i) the sum of minimum rent and additional rent payable for the last
month of the term of this Lease or, (ii) the fair market rental value at the
time of such holdover, and, in addition to either of the foregoing, all other
charges payable with respect to such last month of this Lease and all damages
suffered or incurred by Landlord as a result of or arising from such holdover
tenancy. Nothing contained herein shall grant Tenant the right to holdover after
the term of this Lease has expired.
16. RESERVATIONS IN FAVOR OF LANDLORD. (i) All walls, windows and doors
bounding the Demised Premises (including exterior Building walls, core corridor
walls and doors and any core corridor entrance), except the inside surfaces
thereof, (ii) any terraces or roofs adjacent to the Demised Premises, and (iii)
any space in or adjacent to the Demised Premises used for shafts, pipes,
conduits, fan rooms, ducts, electric or other utilities, sinks or other Building
facilities, and the use thereof, as well as reasonable access thereto through
the Demised Premises for the purposes of construction, operation, maintenance,
decoration and repair, are reserved to Landlord.
17. COMPLETION OF IMPROVEMENTS; DELAY IN POSSESSION.
17.1. Intentionally Omitted.
17.2. TENANT IMPROVEMENTS. Tenant, at Tenant's own cost, shall
furnish, install and otherwise provide and be responsible for all "Tenant
Improvements" identified on Exhibit "F", and Tenant shall perform, observe and
complete its obligations with respect to Tenant Improvements, all within the
time periods therefor and all as more completely set forth herein and in Exhibit
"F".
17.3. ACCEPTANCE. Tenant represents that the Building, Land, and the
Demised Premises, the street or streets, sidewalks, parking areas, curbs and
access ways adjoining them, and the present uses and non-uses thereof, have been
examined by Tenant, and Tenant accepts them in the condition or state in which
they now are, or any of them now is, without relying on any representation,
covenant or warranty, express or implied, by Landlord. Tenant specifically
agrees to accept the Demised Premises in "AS-IS", "WHERE-IS" condition, without
any obligation on the part of Landlord to perform any alterations, improvements,
redecorating or other work therein except as specifically provided in this
Lease. Tenant further acknowledges that it has had the opportunity to examine
any and all equipment and fixtures in the Demised Premises and accepts such
equipment and fixtures in their "AS IS - WHERE IS" condition, with all faults
and under and subject to the rights of other parties, including without
limitation any and all liens thereon, as of the Commencement Date without any
obligation on the part of Landlord to maintain, repair or replace any of the
equipment. Landlord has made and makes no representations or warranties of any
nature whatsoever, directly or indirectly, express or implied, oral or written,
as to the ownership, suitability, durability, fitness for use, merchantability,
condition or quality of the equipment. The provisions of this Paragraph shall
survive the termination of this Lease.
-37-
17.4. Intentionally Omitted.
18. COMMUNICATION AND COMPUTER LINES. Tenant may install, maintain,
replace, remove or use any communications or computer wires, cables and related
devices (collectively the "Lines") at the Building in or serving the Demised
Premises, provided: (a) Tenant shall obtain Landlord's prior written consent,
use an experienced and qualified contractor approved in writing by Landlord, and
comply with all of the other provisions of Paragraph 6.7, (b) any such
installation, maintenance, replacement, removal or use shall comply with all
Governmental Requirements applicable thereto and good work practices including,
but not limited to, the national electrical codes and all requirements of the
National Fire Protection Agency and shall not interfere with the use of any then
existing Lines at the Building, (c) an acceptable number of spare Lines and
space for additional Lines shall be maintained for existing and future occupants
of the Building, as determined in Landlord's reasonable opinion, (d) if Tenant
at any time uses any equipment that may create an electromagnetic field
exceeding the normal insulation ratings of ordinary twisted pair riser cable or
cause radiation higher than normal background radiation, the Lines therefor
(including riser cables) shall be appropriately insulated to prevent such
excessive electromagnetic fields or radiation, (e) as a condition to permitting
the installation of new Lines, Landlord may require that Tenant remove existing
Lines located in or serving the Demised Premises, (f) Tenant's rights shall be
subject to the rights of any regulated telephone company, and (g) Tenant shall
pay all costs in connection therewith, and Landlord reserves the right to
require that Tenant remove any Lines located in or serving the Demised Premises
which are installed in violation of these provisions, or which are at any time
in violation of any Governmental Requirements or represent a dangerous or
potentially dangerous condition (whether such Lines were installed by Tenant or
any other party), within three (3) days after written notice.
18.1. LANDLORD RESERVATION. Landlord may (but shall not have the
obligation to): (i) install new Lines at the Building (ii) create additional
space for Lines at the Building, and (iii) reasonably direct, monitor and/or
supervise the installation, maintenance, replacement and removal of, the
allocation and periodic re-allocation of available space (if any) for, and the
allocation of excess capacity (if any) on, any Lines now or hereafter installed
at the Building by Landlord, Tenant or any other party (but Landlord shall have
no right to monitor or control the information transmitted through such Lines).
Such rights shall not be in limitation of other rights that may be available to
Landlord by Governmental Requirements or otherwise. If Landlord exercises any
such rights, Landlord may charge Tenant for the costs attributable to Tenant, or
may include those costs and all other costs in Operating Expenses (including
without limitation, costs for acquiring and installing Lines and risers to
accommodate new Lines and spare Lines, any associated computerized system and
software for maintaining records of Line connections, and the fees of any
consulting engineers and other experts); provided, any capital expenditures
included in Operating Expenses hereunder shall be amortized (together with
reasonable finance charges) over the useful life of such item (but in no event
longer than five years).
18.2. REMOVAL OF LINES. Notwithstanding anything to the contrary
contained in Paragraph 6.4, Landlord reserves the right to require that Tenant
remove any or all Lines installed by or for Tenant, except if Tenant removes
substantially all of the existing (as of the date of this Lease) Lines installed
within or serving the Demised Premises, then Tenant shall not be required to
remove Tenant installed Lines upon termination of this Lease. Any Lines not
-38-
required to be removed pursuant to this Paragraph shall, at Landlord's option,
become the Property of Landlord (without payment by Landlord). If Tenant fails
to remove such Lines as required by Landlord, or violates any other provision of
this Paragraph, Landlord may, after twenty (20) days written notice to Tenant,
remove such Lines or remedy such other violation, at Tenant's expense (without
limiting Landlord's other remedies available under this Lease or applicable
Governmental Requirements). Tenant shall not, without the prior written consent
of Landlord in each instance, grant to any third party a security interest or
lien in or on the Lines, and any such security interest or lien granted without
Landlord's written consent shall be null and void. Except to the extent arising
from the intentional or negligent acts of Landlord or Landlord's agents or
employees, Landlord shall have no liability for damages arising from, and
Landlord does not warrant that the Tenant's use of any Lines will be free from
the following (collectively called "Line Problems"): (x) any eavesdropping or
wire-tapping by unauthorized parties, (y) any failure of any Lines to satisfy
Tenant's requirements, or (z) any shortages, failures, variations,
interruptions, disconnections, loss or damage caused by the installation,
maintenance, replacement, use or removal of Lines by or for other tenants or
occupants at the Building, by any failure of the environmental conditions or the
power supply for the Building to conform to any requirements for the Lines or
any associated equipment, or any other problems associated with any Lines by any
other cause. Under no circumstances shall any Line Problems be deemed an actual
or constructive eviction of Tenant, render Landlord liable to Tenant for
abatement of Rent, or relieve Tenant from performance of Tenant's obligations
under this Lease. Landlord in no event shall be liable for damages by reason of
loss of profits, business interruption or other consequential damage arising
from any Line Problems.
18.3. COMMUNICATION CONTRACTORS. Landlord has informed Tenant that
certain communication services may be offered to tenants of the Building by an
entity which may or may not be related to or under contract with Landlord
("Supplier"). Tenant shall be permitted to contract with Supplier for the
provision of any or all of such services on such terms and conditions as Tenant
and Supplier may agree. Tenant shall also be permitted to obtain communication
services from any other reputable person or entity in the business of providing
the same (hereinafter referred to as "Separate Supplier"), provided that
Landlord shall not be required thereby to make any alterations in or to any part
of the Building or the use of any facilities or equipment of the Building, and
provided further that no such services provided by a Separate Supplier, or any
equipment or facilities used or to be used in connection therewith, shall be
incompatible in any respect with, or shall interfere with or otherwise impair or
adversely affect the operation, reliability or quality of any Building Systems
or any services, equipment or facilities used or operated by Supplier or any
tenant in the Building. Tenant acknowledges and agrees that: (a) Landlord has
made no warranty or representation to Tenant with respect to the availability of
any such services, whether provided by Supplier or any Separate Supplier, or the
quality, reliability or suitability thereof; (b) neither Supplier nor any
Separate Supplier is acting as the agent or representative of Landlord in the
provision of such services, and Landlord shall have no liability or
responsibility for any failure or inadequacy of such services, or any equipment
or facilities used in the furnishing thereof, or any act or omission of Supplier
or any Separate Supplier or their agents, employees, representatives, officers
or contractors; (c) if Tenant so contracts for such services with Supplier or
Separate Supplier, Landlord shall have no responsibility or liability for the
installation, alteration, repair, maintenance, furnishing, operation, adjustment
or removal of any such services, equipment, or facilities; and (d) any contract
or other agreement between Tenant and Supplier or any Separate Supplier shall be
-39-
independent of this Lease, the obligations of Tenant hereunder, and the rights
of Landlord hereunder, and, without limiting the foregoing, no default or
failure of Supplier or any Separate Supplier with respect to any such contract
or agreement relating thereto, shall have any effect on this Lease or give to
Tenant any offset or defense to the full and timely performance of its
obligations hereunder, entitle Tenant to any abatement of rent or any other
payment required to be made by Tenant hereunder or constitute any actual or
constructive eviction of Tenant or otherwise give rise to any other claim of any
nature against Landlord. If Tenant does not contract for such communication
services with a Supplier or Separate Supplier, this subparagraph shall be deemed
of no force or effect under this Lease.
19. LANDLORD'S RELIANCE. Within five (5) business days of a monetary Event
of Default, Tenant will submit to Landlord current non-confidential financial
information, in detail reasonably satisfactory to Landlord, in order for
Landlord to determine properly Tenant's then financial condition. In the event
of a sale or refinancing of the Building, Tenant shall cooperate with Landlord
in providing a potential lender or buyer with non-confidential information as to
the financial condition of Tenant. As a material inducement to Landlord to enter
into this Lease, Tenant (and each party executing this Lease on behalf of Tenant
individually) represents and warrants to Landlord that: (i) Tenant and the party
executing on behalf of Tenant are fully and properly authorized to execute and
enter into this Lease on behalf of Tenant and to deliver the same to Landlord;
(ii) the execution, delivery and full performance of this Lease by Tenant do not
and shall not constitute a violation of any contract, agreement, undertaking,
judgment, law, decree, governmental or court order or other restriction of any
kind to which Tenant is a party or by which Tenant may be bound; (iii) Tenant
has executed this Lease free from fraud, undue influence, duress, coercion or
other defenses to the execution of this Lease; (iv) this Lease constitutes a
valid and binding obligation of Tenant, enforceable against Tenant in accordance
with its terms; (v) each individual executing this Lease on behalf of Tenant is
legally competent, has attained the age of majority and has full capacity to
enter into this Lease; and (vi) if Tenant is a corporation, a partnership or a
limited liability company: (a) Tenant is duly organized, validly existing and in
good standing under the laws of the state of its organization and has full power
and authority to enter into this Lease, to perform its obligations under this
Lease in accordance with its terms, and to transact business in Pennsylvania;
(b) the execution of this Lease by the individual or individuals executing it on
behalf of Tenant, and the performance by Tenant of its obligations under this
Lease, have been duly authorized and approved by all necessary corporate,
partnership or limited liability company action, as the case may be; and (c) the
execution, delivery and performance of this Lease by Tenant is not in conflict
with Tenant's bylaws or articles of incorporation, agreement of partnership,
limited liability company operating agreement or certificate of formation or
other organization documents or charters, agreements, rules or regulations
governing Tenant's business as any of the foregoing may have been supplemented,
modified, amended, or altered in any manner.
20. PRIOR AGREEMENTS; AMENDMENTS. This Lease constitutes the entire
agreement between the parties relating to the subject matter contained herein.
Neither party hereto has made any representations or promises except as
contained herein or in some further writing signed by the party making such
representation or promise, which, by its express terms, is intended to
supplement the terms hereof. Without limiting the foregoing, this Lease
supersedes all prior negotiations, agreements, informational brochures, letters,
promotional information, proposals, and other statements and materials made or
furnished by Landlord or its agents. No
-40-
agreement hereinafter made shall be effective to change, modify, discharge,
waive obligations under, or effect an abandonment of this Lease, in whole or in
part, unless such agreement is in writing and signed by the party against whom
enforcement of the change, modification, discharge, waiver or abandonment is
sought. Notwithstanding the foregoing, no warranty, representation, covenant,
writing, document, instrument, amendment, modification, agreement or like
instrument shall be binding upon or enforceable against Landlord unless executed
by Landlord.
21. CAPTIONS. The captions of the paragraphs and subparagraphs in this
Lease are inserted and included solely for convenience and shall not be
considered or given any effect in construing the provisions hereof.
22. LANDLORD'S RIGHT TO CURE. Landlord may (but shall not be obligated
to), on five (5) business days' notice to Tenant (except that no notice or
opportunity to cure need be given in case of emergency or on account of a
default by Tenant which adversely affects the operation of the Building or the
use and enjoyment thereof by any other tenant(s) of the Building), cure on
behalf of Tenant any Event of Default hereunder by Tenant, which has not been
cured within any applicable cure period provided under Paragraph 12.1 hereof,
and the cost of such cure (including any attorney's fees incurred) shall be
deemed additional rent payable upon demand.
23. ESTOPPEL STATEMENT. Tenant shall from time to time, within fifteen
(15) days after request by Landlord or any mortgagee, execute, acknowledge and
deliver to Landlord, or to any third party designated by Landlord, a statement
certifying that this Lease is unmodified and in full force and effect (or that
the same is in full force and effect as modified, listing any instruments of
modification), confirming the rents and other charges under this Lease and the
dates to which rent and other charges have been paid, and certifying whether or
not, to the best of Tenant's knowledge, Landlord is in default hereunder or
whether Tenant has any claims or demands against Landlord (and, if so, the
default, claim and/or demand shall be specified) and such other reasonable
information as Landlord shall require, in the form set forth in Exhibit "G"
hereto or such similar form as may be required by any subsequent mortgagee or
third party. To the extent such estoppel statement is not received from Tenant
in a timely manner in accordance with this Paragraph, Landlord shall be entitled
to furnish to any third party to whom such estoppel statement would have been
delivered Landlord's good faith statement to the effect requested from Tenant,
and Tenant shall be bound by, and deemed to have delivered, such Landlord's
estoppel statement with respect to this Lease. Any such estoppel statement may
be relied upon by Landlord, any mortgagees, auditors, insurance carriers and
prospective purchasers.
24. BROKER. Tenant represents and warrants that it has not dealt with any
broker or agent in the negotiation for or the obtaining of this Lease, other
than The ▇▇▇▇▇▇▇▇▇▇ Brokerage Group, Inc. and Brite Realty Services, Inc.
("Brokers"), and agrees to indemnify, defend and hold Landlord harmless from any
and all cost or liability for compensation claimed by any such broker or agent,
other than Brokers, employed or engaged by it or claiming to have been employed
or engaged by it. Each of the Brokers is entitled to a leasing commission in
connection with the making of this Lease, and Landlord shall pay such commission
to each of the Brokers pursuant to a separate agreement between Landlord and
each of the respective Brokers.
-41-
25. MISCELLANEOUS.
25.1. CERTAIN INTERPRETATIONS. The word "Tenant" as used in this
Lease shall be construed to mean tenants in all cases whether there is more than
one tenant (and in such case the liability of such tenants shall be joint and
several), and the necessary grammatical changes required to make the provisions
hereof apply to corporations, partnerships or individuals, men or women, shall
in all cases be assumed as though in each case fully expressed. Each provision
hereof shall extend to and shall, as the case may require, bind and inure to the
benefit of Tenant and its successors and assigns, provided that this Lease shall
not inure to the benefit of any assignee or successor of Tenant except upon the
express written consent of Landlord as herein provided.
25.2. PARTIAL INVALIDITY. If any of the provisions of this Lease, or
the application thereof to any person or circumstances, shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such provision or provisions to persons or circumstances other than those as to
whom or to which it is held invalid or unenforceable, shall not be affected
thereby, and every provision of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
25.3. GOVERNING LAW. This Lease shall be governed in all respects by
the laws of the Commonwealth of Pennsylvania.
25.4. FORCE MAJEURE If Landlord shall be delayed in the performance
or unable to perform any of Landlord's obligations under this Lease because of a
"force majeure" event (which shall mean any event beyond the reasonable control
of Landlord including, without limitation, labor disputes, civil commotion, war,
war-like operations, invasion, rebellion, hostilities, military power, sabotage,
governmental regulations or controls, fire or other casualty, inability to
obtain material or services, inclement weather or other act of God), then, in
any such case, Landlord shall not be subject to any liability to Tenant.
Landlord's delay in performance or failure to perform under this Lease as a
result of any force majeure event shall not affect the validity of this Lease or
any obligation of Tenant hereunder.
25.5. LIGHT AND AIR. This Lease does not grant any legal rights to
"light and/or air" outside the Demised Premises nor any particular view or
cityscape visible from the Demised Premises.
25.6. RECORDING. Neither this Lease nor any memorandum of lease or
short form lease shall be recorded by Tenant and Tenant shall remove immediately
upon request by Landlord any improperly recorded copy of this Lease or
memorandum of Lease.
26. QUIET ENJOYMENT. Upon payment by Tenant of the rent and other sums
provided herein and Tenant's observance and performance of the covenants, terms
and conditions of this Lease to be observed and performed by Tenant, Tenant
shall peaceably hold and quietly enjoy the Demised Premises for the term of this
Lease without hindrance or obstruction by Landlord or any other person claiming
by, through or under Landlord, subject to the terms and conditions of this
Lease, and to any mortgage or ground lease which is superior to this Lease.
-42-
27. CONFIDENTIALITY. TENANT AND LANDLORD ACKNOWLEDGE AND AGREE THAT THE
TERMS OF THIS LEASE AND THE NEGOTIATIONS WHICH LED TO THE EXECUTION OF THIS
LEASE ARE CONFIDENTIAL IN NATURE. TENANT AND LANDLORD COVENANT THAT, EXCEPT AS
MAY BE REQUIRED BY LAW OR AS REQUIRED TO CONDUCT THEIR BUSINESS OR AS REQUIRED
BY ANY LENDER IN CONNECTION WITH ANY CURRENT OR PROPOSED FINANCING FOR TENANT OR
LANDLORD, NEITHER TENANT NOR LANDLORD SHALL COMMUNICATE THE TERMS OR ANY OTHER
ASPECT OF THIS TRANSACTION WITH, AND WILL NOT DELIVER ALL OR ANY PORTION OF THIS
LEASE TO, ANY PERSON OR ENTITY OTHER THAN TO THE OTHER PARTY.
28. MONUMENT SIGN. Provided Landlord obtains, all necessary governmental
approval(s), Landlord shall install one (1) multi-tenant monument sign (the
"Monument Sign") at the Office Building Entry Sign as shown on Exhibit "H"
attached hereto. Landlord shall be solely responsible and shall pay for all
costs and expenses of the initial design, construction and installation of the
Monument Sign. Tenant shall pay Tenant's pro-rata share of the initial design,
construction and installation and ongoing maintenance charges of the Monument
Sign. At the request of Tenant, Landlord shall install, at Landlord's sole cost
and expense, one (1) Building Standard sign on the Monument Sign (the "Sign")
provided: Landlord approves the design, location and size of the Sign. At the
option of Landlord and upon the earlier to occur of either (i) the expiration or
sooner termination of the Lease, or (ii) the date that Tenant occupies less than
80,000 RSF at the Center (whether due to a Transfer, recapture or otherwise),
Tenant shall, at Tenant's sole cost and expense, remove the Sign and shall
repair all damage caused by such removal.
29. Intentionally Omitted.
30. RENEWAL. If Tenant exercises its option to extend the term of the
Research Building Lease pursuant to Paragraphs 29 and/or 30 therein, Tenant
shall have the option to extend the term of this Lease beyond March 31, 2007,
and in the event Tenant elects such option to extend the term of this Lease,
such extension shall be on the same terms and conditions that are set forth in
such Paragraphs 29 and/or 30, as applicable.
31. LANDLORD'S DEFAULT. Landlord shall not be deemed to be in default
under this Lease unless Landlord shall fail to comply with any term, provision
or covenant in this Lease on the part of Landlord to be performed within thirty
(30) days after Landlord's receipt of Tenant's written notice thereof; provided,
however, that if the failure cannot reasonably be cured within such thirty (30)
day period, Landlord shall not be in default if Landlord commences to cure the
failure within such thirty (30) day period and thereafter diligently and in good
faith proceeds to cure the failure until completion.
32. CROSS DEFAULT. A monetary Event of Default by Tenant under this Lease
shall, at the option of Landlord, constitute an Event of Default by Tenant under
the leases between Tenant and Landlord and/or Landlord's affiliates and an Event
of Default under Tenant's other leases shall be an Event of Default under this
Lease.
-43-
IN WITNESS WHEREOF, intending to be legally bound hereby, the
parties hereto have caused this Radnor Technology and Research Center Office and
Cafeteria Lease to be executed by their duly authorized representatives the day
and year first above written.
LANDLORD:
WITNESS: RADNOR PROPERTIES-145 KOP, L.P.
By: Radnor GP-145 KOP, L.L.C.,
General Partner
/s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
--------------------------- --------------------------------
Authorized Signatory
TENANT:
WITNESS: CENTOCOR, INC.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------- ----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: V.P. Finance
-44-