LEASE AGREEMENT L/S THREE CRESCENT DRIVE, LP Landlord AND TASTY BAKING COMPANY Tenant AT Three Crescent Drive Philadelphia Navy Yard Corporate Center Philadelphia, PA 19112
Exhibit
10 (c)
L/S
THREE CRESCENT DRIVE, LP
Landlord
AND
TASTY
BAKING COMPANY
Tenant
AT
Three
Crescent Drive
Philadelphia
Navy ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇,
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TABLE
OF CONTENTS
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Page
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1.
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Basic
Lease Terms and Definitions
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1
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2.
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Premises
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3
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3.
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Use
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4
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4.
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Term;
Possession; Extension Options
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4
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5.
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Rent
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5
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6.
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Operating
Expenses.
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5
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7.
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Services
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6
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8.
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Insurance;
Waivers; Indemnification
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7
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9.
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Maintenance
and Repairs
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8
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10.
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Compliance
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9
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11.
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Signs
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10
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12.
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Alterations
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10
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13.
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Mechanics'
Liens
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11
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14.
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Landlord's
Right to Relocate Tenant; Right of Entry
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11
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15.
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Damage
by Fire or Other Casualty
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12
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16.
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Condemnation
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13
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17.
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Quiet
Enjoyment
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13
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18.
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Assignment
and Subletting
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13
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19.
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Subordination;
Mortgagee's Rights
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14
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20.
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Tenant's
Certificate; Financial Information
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15
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21.
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Surrender
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15
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22.
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Defaults
- Remedies
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16
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-i-
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23.
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Tenant's
Authority
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19
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24.
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Liability
of Landlord
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19
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25.
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Miscellaneous
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20
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26.
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Notices
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21
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27.
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Security
Deposit
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21
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28.
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Parking
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22
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29.
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Tenant
Improvement Work.
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22
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30.
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Brokers
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25
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31.
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First
Floor Coffee Shop.
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26
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32.
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Additional
Space
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27
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33.
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Keystone
Opportunity Zone Provisions
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28
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-ii-
THIS
LEASE
AGREEMENT is made by and between L/S THREE CRESCENT DRIVE, LP, a Pennsylvania
limited partnership ("Landlord") and TASTY BAKING COMPANY, a corporation
organized under the laws of Pennsylvania ("Tenant"), and is dated as of the
date
on which this Lease has been fully executed by Landlord and Tenant (the
"Effective Date").
1. Basic
Lease Terms and Definitions
(a) Premises: Portions
of the second, and all of the third, floors of the Building, as shown on
Exhibit "A", consisting of not less than 35,000 rentable square
feet.
(b) Building: Approximately
94,920 rentable square feet
Address: Three
Crescent Drive, Navy Yard Corporate Center, Philadelphia, PA 19112.
(c) Term: The
period commencing on the Commencement Date of this Lease and expiring on the
Expiration Date, plus (if the Commencement Date is not the first day of a
calendar month) any partial month from the Commencement Date to the first day
of
the next full calendar month of the Term. Notwithstanding the
foregoing, if the Plant Lease is terminated due to the failure of a contingency
set forth in Section 30 thereof, then Tenant shall have the right, exercisable
by delivering written notice to Landlord within ten (10) Business Days after
the
termination of the Plant Lease, to terminate this Lease, whereupon Tenant shall
reimburse Landlord for Landlord's out-of-pocket expenses reimbursed or paid
directly by Landlord with respect to this Lease and the Premises (including,
without limitation, reasonably attorney fees incurred to negotiation this Lease,
fees to architects and other professionals in connection with the design of
the
Premises for Tenant, and Broker commissions) and thereafter neither party shall
have any further rights or obligations hereunder other than those that expressly
survive the termination of this Lease.
(d) Anticipated
Commencement Date: April 1, 2009.
(e) Outside
Delivery Date: August 1, 2009. If Landlord does not
deliver the Premises to Tenant with the base building and the Tenant's
Improvement Work substantially complete by the Outside Delivery Date, then
Tenant shall have the right to terminate this Lease by delivering written notice
to Landlord thereof within 10 days after the Outside Delivery Date, whereupon
neither party shall have any further rights or obligations hereunder except
for
those that expressly survive the termination of this Lease. The
Outside Delivery Date shall be deemed extended one day for each day of Excusable
Delay.
(f) Commencement
Date: The Date that is the later of (i) the earlier of (A) the date
on which Tenant commences operations in the Premises, or (B) April 1, 2009,
or
(ii) the date on which Landlord delivers the Premises to Tenant with Tenant’s
Improvement Work substantially complete.
(g) Expiration
Date: The Expiration Date for the initial term of the Plant
Lease. Within thirty (30) days after the Commencement Date of the
Plant Lease, Landlord and Tenant shall enter into a letter agreement in the
form
of Exhibit "G" setting forth (i) the precise Expiration Date of this
Lease, and (ii) the Minimum Annual Rent and Tenant's Share (based on the actual
square footage of the Premises), which letter agreement shall be deemed to
amend
this Lease.
(h) Minimum
Annual Rent: $23.80 per square foot, increased by 2.5% per annum
commencing on the first anniversary of the Commencement Date and on each
subsequent anniversary of the Commencement Date.
(i) Rent
Abatement: Minimum Annual Rent shall ▇▇▇▇▇ for a period of six (6)
months beginning on the Commencement Date. During the six-month
abatement period, Tenant shall pay all applicable monthly installments of Annual
Operating Expenses with respect to the Premises, subject to reconciliation
as
provided in this Lease.
(j) Annual
Operating Expenses: Assuming a Premises square footage of 35,000
square feet, approximately $277,550.00 (calculated as $7.93/square foot),
payable in monthly installments of $23,129.17, subject to adjustment as provided
in this Lease.
(k) Tenant's
Share: Assuming Premises Rentable Square Footage of 35,000 square feet,
approximately 36.87% (also see Definitions)
(l) Use: General
office.
(m) Security
Deposit: $137,000.00
(n) Addresses
For Notices:
Landlord: Liberty
Property/Synterra Limited Partnership
c/o
Liberty Property Trust
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▇▇▇▇▇▇▇▇▇▇▇▇,
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Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Vice President
with
a
copy to:
Liberty
Property Trust
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▇▇▇▇▇▇▇,
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Attention: Legal
Department
with
a
copy to:
Wolf,
Block, ▇▇▇▇▇▇ and ▇▇▇▇▇-▇▇▇▇▇ LLP
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Attention: ▇▇▇▇▇▇
▇. ▇▇▇▇, Esquire
Tenant: Before
the Commencement Date:
Tasty
Baking Company
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▇▇▇▇▇▇▇▇▇▇▇▇,
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Attention:
President and CEO
-2-
With
a
copy to:
Tasty
Baking Company
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▇▇▇▇▇▇▇▇▇▇▇▇,
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Attention:
General Counsel
With
a
copy to:
▇▇▇▇▇▇▇▇
Ronon ▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇,
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Attn:
Chair of Business Department
On
or
after the Commencement Date: Premises
(o) Guarantor: N/A
(p) Broker: The
Binswanger Companies.
(q) Additional
Defined Terms: See Rider 1 for the definitions of other capitalized
terms.
(r) Contents: The
following are attached to and made a part of this Lease:
Rider
1 – Additional
Definitions
Exhibits: "A" -
Plan showing Premises
"B" -
Building
Rules
"C" -
Estoppel
Certificate Form
"D" -
Cleaning
Schedule
"E-1"
- Base Building
Specification
"E-2"
- Tenant Fit-Out
Criteria
"F" -
Environmental Reports
"G" -
Form of
Letter Agreement
"H" -
Signage
Criteria
"I" -
Operational Expense Estimate
2. Premises
Landlord
leases to Tenant and Tenant leases from Landlord the Premises, together with
the
right in common with others to use the Common Areas. Subject to the
substantial completion of the base building in accordance with Exhibit
"E-1" and the Tenant's Improvement Work in accordance with Section
29 and Exhibit "E-2", Tenant accepts the Premises, Building and
Common Areas "as is," without relying on any representation, covenant or
warranty by Landlord other than as expressly set forth in this Lease. Landlord
and Tenant acknowledge that all square foot measurements are
approximate. The final measurement of rentable square footage of the
Premises will be made by Landlord using the Standard Method of Floor Measurement
for Office Buildings developed by the Building Owners and Managers Association
(BOMA). Minimum Annual Rent and Tenant's Share shall be adjusted
accordingly. Tenant shall have access to the Premises 24 hours a day,
7 days a week, subject to such reasonable security measures as Landlord may
designate from time to time.
-3-
3. Use
Tenant
shall occupy and use the Premises only for the Use specified in Section 1(l)
above. Tenant shall not permit any conduct or condition which may
endanger, disturb or otherwise interfere with any other Building occupant's
normal operations or with the management of the Building. Tenant may
use all Common Areas only for their intended purposes. Landlord shall
have exclusive control of all Common Areas at all times.
4. Term;
Possession; Extension Options
(a) The
Term of this Lease shall commence on the Commencement Date of this Lease and
shall end on the Expiration Date, unless sooner terminated in accordance with
this Lease. Landlord shall not be liable for any loss or damage to
Tenant resulting from any delay in delivering possession due to any Excusable
Delay.
(b) Provided
that (A) Landlord has not given Tenant notice of default more than two (2)
times
during the twelve (12) month period preceding Tenant’s exercise of this option
to extend, (B) there then exists no Event of Default by Tenant under this Lease,
and (C) no Event of Default occurs between Tenant’s exercise of this option to
extend the Term and the Expiration Date of the then-current Term, Tenant shall
have the right and option (each an "Extension Option") to extend the Term
for two (2) additional periods of ten (10) years each (each an "Extension
Period"), exercisable by giving Landlord prior written notice, at least
eighteen (18) months in advance of the Expiration Date of the then-current
Term,
of Tenant’s election to extend the Term; it being agreed that time is of the
essence and that this Extension Option is personal to Tenant and is
non-transferable to any assignee or sublessee (regardless of whether any such
assignment or sublease was made with or without Landlord’s consent) or other
party, other than an assignment to an Affiliate of Tenant in accordance with
this Lease. Such Extension Period shall be under the same terms and
conditions as provided in this Lease except as follows:
(i) Section
29 of this Lease shall be void;
(ii) the
Extension Period shall begin on the Expiration Date, as such date may have
been
extended, and thereafter the Expiration Date shall be deemed to be the tenth
(10th)
anniversary thereof;
(iii) all
references to the Term in this Lease shall be deemed to mean the Term as
extended pursuant to this Section;
(iv) Tenant’s
right and option to extend the Term for two (2) additional periods as described
above shall decrease by one (1) additional period for each such additional
period that Tenant extends the Term; and
-4-
(v) the
Minimum Annual Rent payable by Tenant for each Lease Year of each exercised
Extension Period shall the fair market rental of the Premises for such
period.
(c) If
any realty transfer or similar tax is payable as a result of the parties’
execution of this Lease or the exercise of any Extension Period, the Extension
Option and any exercised Extension Period shall be null and void and of no
further force or effect without the need for any further action by the parties;
provided, however, that (i) if the termination of the Extension Option and
any
exercised Extension Period provided in this Section 4(c) does not result in
the avoidance of the transfer or similar tax, or (ii) if Tenant elects to pay
such transfer of similar tax, notwithstanding the avoidance thereof by reason
of
the termination of the Extension Option and any exercised Extension Period,
then
in either event Tenant shall have the right to reinstate the Extension Option
and any exercised Extension Period (subject to the other provisions of this
Section 4) by delivering written notice thereof and paying such tax before
it
becomes delinquent. Tenant's failure to reinstate the Extension
Option or exercised Extension Period within the time periods specified above
shall be deemed a waiver by Tenant of such right to
reinstate. Notwithstanding anything in this Lease to the contrary,
any transfer or similar tax payable as a result of this Lease shall be paid
by
Tenant.
5. Rent
Tenant
agrees to pay to Landlord, without demand, deduction or offset, Minimum Annual
Rent and Annual Operating Expenses for the Term in accordance with Sections
1(h) and 1(i) of this Lease. Tenant shall pay the Monthly Rent,
in advance, on the first day of each calendar month during the Term, at
Landlord's address designated in Section 1 above unless Landlord designates
otherwise. If the Commencement Date is not the first day of the
month, the Monthly Rent for that partial month shall be apportioned on a per
diem basis and shall be paid on or before the Commencement Date. Rent
shall be apportioned on a per diem basis for any partial Lease
Year. Tenant shall pay Landlord a service and handling charge equal
to 5% of any Rent not paid within 5 days after the date due. In
addition, any Rent, including such charge, not paid within 5 days after the
due
date will bear interest at the Interest Rate from the date due to the date
paid.
6. Operating
Expenses.
(a) The
amount of the Annual Operating Expenses set forth in Section 1(j) above
represents Tenant's Share of the estimated Operating Expenses for the calendar
year in which the Term commences, and is based on the Operational Expense
Estimate attached hereto as Exhibit "I". Landlord may adjust
such amount from time to time if the estimated Annual Operating Expenses
increase or decrease; Landlord may also invoice Tenant separately from time
to
time for Tenant's Share of any extraordinary or unanticipated Operating
Expenses. By April 30th of each year (and as soon as practical after
the expiration or termination of this Lease or, at Landlord's option, after
a
sale of the Property), Landlord shall provide Tenant with a statement of
Operating Expenses for the preceding calendar year or part
thereof. Within 60 days after delivery of the statement to Tenant,
Landlord or Tenant shall pay to the other the amount of any overpayment or
deficiency then due from one to the other or, at Landlord's option, Landlord
may
credit Tenant's account for any overpayment. If Tenant does not give
Landlord notice within 60 days after receiving Landlord's statement that Tenant
disagrees with the statement and specifying the items and amounts in dispute,
Tenant shall be deemed to have waived the right to contest the
statement. Landlord's and Tenant's obligation to pay any overpayment
or deficiency due the other pursuant to this Section shall survive the
expiration or termination of this Lease. Notwithstanding any other
provision of this Lease to the contrary, Landlord may, in its reasonable
discretion, determine from time to time the method of computing and allocating
Operating Expenses, including the method of allocating Operating Expenses to
various types of space within the Building to reflect any disparate levels
of
services provided to different types of space. If the Building is not
fully occupied during any period, Landlord may make a reasonable adjustment,
as
is customary for first class office buildings in the Navy Yard, based on
occupancy in computing the Operating Expenses for such period so that Operating
Expenses are computed as though the Building had been fully
occupied.
-5-
(b) At
Tenant's request, Landlord shall provide Tenant with supporting documentation
for any element of Operating Expenses or any other charges passed through to
Tenant under this Lease. Landlord agrees that Tenant or its
representative shall have the right, at Tenant’s expense, once on an annual
basis within 60 days after Tenant's receipt of the statement of Operating
Expenses, to examine and audit (using an independent certified public accountant
selected by Tenant and reasonably acceptable to Landlord) Landlord's books
and
records relating to Operating Expenses for either or both of the two (2)
calendar years immediately preceding such notice, during normal business hours
at the main office of Landlord. If as a result of an audit, it is
determined (by written agreement of Landlord and Tenant or by final appealable
judgment or final unappealable dispute resolution) that (i) Tenant is entitled
to a refund, Landlord shall refund all over payments made by Tenant during
such
period within thirty (30) days following such determination, or (ii) Landlord
is
entitled to receive an additional sum for Operating Expenses from Tenant, Tenant
shall remit such additional payment to Landlord within thirty (30) days
following such determination. If it is determined (by written
agreement of Landlord and Tenant or by final appealable judgment or final
unappealable dispute resolution) that Landlord has overstated the actual amount
of the Operating Expenses for the applicable year by more than five percent
(5%), Landlord shall be obligated to reimburse Tenant for its actual and
reasonable out-of-pocket costs of conducting such audit. Except as
set forth above, Tenant shall bear the total cost of any such
audit. The provisions of this Section 6(b) shall survive
termination or expiration of this Lease. Tenant shall give Landlord
at least twenty (20) Business Days prior notice of its desire to conduct such
examination or audit and will not unreasonably interfere with Landlord's or
its
property manager's normal business activities.
7. Services
Tenant
shall pay to Landlord monthly, as additional Rent, Tenant's pro-rata share
of
the cost of utilities for all tenants in the Building, excluding therefrom
such
costs of tenants with separately submetered premises, representing Tenant's
charges for all water, sewer, HVAC and electricity consumed on the Premises,
which shall be billed by Landlord to Tenant at the same "pass-through" rate
that
Landlord receives from the utility provider. Tenant shall have the
right, at Tenant's expense as part of the Tenant Improvement Work, to have
water
and/or electricity separately submetered to the Premises, whereupon Tenant's
share of such utilities shall be based on the submetered readings. If
Tenant requires that natural gas be provided to the Premises, such service
shall
be separately metered and the cost of installing such meter shall be borne
by
Tenant. Landlord shall not be responsible or liable for any
interruption in such services except to the extent caused by Landlord's
negligence or willful misconduct, nor shall such interruption affect the
continuation or validity of this Lease. Landlord will furnish for the
normal use and occupancy of the Premises for general office purposes (i) trash
removal and janitorial services pursuant to the cleaning schedule attached
as
Exhibit "D", and (ii) such other services Landlord reasonably determines
are appropriate or necessary and which are consistent with first-class office
buildings in the Navy Yard. Landlord shall have the exclusive right
to select, and to change, the companies providing such services to the Building
or Premises, provided such companies provide such services at competitive market
rates. Any wiring, cabling or other equipment necessary to connect
Tenant's telecommunications equipment shall be Tenant's responsibility, and
shall be installed in a manner approved by Landlord.
-6-
8. Insurance;
Waivers; Indemnification
(a) Landlord
shall maintain insurance against loss or damage to the Building or the Property
with coverage for perils as set forth under the "Causes of Loss-Special Form"
or
equivalent property insurance policy in an amount equal to the full insurable
replacement cost of the Building (including coverage of the Tenant's Improvement
Work but excluding coverage of Tenant's personal property and any Alterations
by
Tenant), and such other insurance, including rent loss coverage, as Landlord
may
reasonably deem appropriate or as any Mortgagee may require, with insurance
companies rated at least A VII in the most current edition of Best's Insurance
Reports.
(b) Tenant,
at its expense, shall keep in effect commercial general liability insurance,
including blanket contractual liability insurance, covering Tenant's use of
the
Property, with such coverages and limits of liability as Landlord may reasonably
require, but not less than a $1,000,000 combined single limit with a $3,000,000
general aggregate limit (which general aggregate limit may be satisfied by
an
umbrella liability policy) for bodily injury or property damage; however, such
limits shall not limit Tenant's liability hereunder. The policy shall
name Landlord and, if requested by Landlord, Liberty Property Trust and any
other associated or affiliated entity as their interests may appear and at
Landlord's request, any Mortgagee(s), as additional insureds, shall be written
on an "occurrence" basis and not on a "claims made" basis and shall be endorsed
to provide that it is primary to and not contributory to any policies carried
by
Landlord and to provide that it shall not be cancelable or reduced without
at
least 30 days prior notice to Landlord. The insurer shall be
authorized to issue such insurance, licensed to do business and admitted in
the
state in which the Property is located and rated at least A VII in the most
current edition of Best's Insurance Reports. Tenant shall deliver to
Landlord on or before the Commencement Date or any earlier date on which Tenant
accesses the Premises, and at least 10 days prior to the date of each policy
renewal, a certificate of insurance evidencing such coverage.
(c) Landlord
and Tenant each waive, and release each other from and against, all claims
for
recovery against the other for any loss or damage to the property of such party
arising out of fire or other casualty coverable by a standard "Causes of
Loss-Special Form" property insurance policy with, in the case of Tenant, such
endorsements and additional coverages as are considered good business practice
in Tenant's business, even if such loss or damage shall be brought about by
the
fault or negligence of the other party or its Agents; provided, however, such
waiver by Landlord and Tenant shall not be effective to the extent of each
such
parties' commercially reasonable deductible. This waiver and release
is effective regardless of whether the releasing party actually maintains the
insurance described above in this subsection and is not limited to the amount
of
insurance actually carried, or to the actual proceeds received after a
loss. Each party shall have its insurance company that issues its
property coverage waive any rights of subrogation, and shall have the insurance
company include an endorsement acknowledging this waiver, if
necessary. Except in the case of Landlord's gross negligence or
willful misconduct, Tenant assumes all risk of damage to Tenant's property
within the Property, including any loss or damage caused by water leakage,
fire,
windstorm, explosion, theft, act of any other tenant, or other
cause.
-7-
(d) Subject
to subsection 8(c) above, and except to the extent caused by the
negligence or willful misconduct of Landlord or its Agents, Tenant will
indemnify, defend, and hold harmless Landlord and its Agents from and against
any and all claims, actions, damages, liability and expense (including
reasonable fees of attorneys, investigators and experts) which may be asserted
against, imposed upon, or incurred by Landlord or its Agents and arising out
of
or in connection with loss of life, personal injury or damage to property in
or
about the Premises or arising out of the occupancy or use of the Property by
Tenant or its Agents or occasioned wholly or in part by any act or omission
of
Tenant or its Agents, whether prior to, during or after the
Term. Tenant's obligations pursuant to this subsection shall survive
the expiration or termination of this Lease.
(e) Subject
to Section 8(c) above, and except to the extent such loss, injury or
damage was caused by the gross negligence or willful misconduct of Tenant or
its
Agents, Landlord will indemnify, defend and hold harmless Tenant and its Agents
from and against any and all claims, actions, damages, liability and expense
(including reasonable fees of attorneys, investigators and experts) which may
be
asserted against, imposed upon, or incurred by Tenant or its Agents and arising
out of or in connection with loss of life, personal injury or damage to property
caused to any person in or about the Premises occasioned wholly or in part
by
the act or omission of Landlord or its Agents. In case any action or
proceeding is brought against Tenant and/or its Agents by reason of the
foregoing, Landlord, at its expense, shall resist and defend such action or
proceeding, or cause the same to be resisted and defended by counsel (reasonably
acceptable to Tenant and its Agents) designated by the insurer whose policy
covers such occurrence or by counsel designated by Landlord and approved by
Tenant and its Agents. Landlord's obligations pursuant to this
Section shall survive the expiration or termination of this Lease.
9. Maintenance
and Repairs
(a) Landlord
shall Maintain the Building, including the Premises, the Common Areas, the
Building Systems and any other improvements owned by Landlord located on the
Property, in a manner consistent with a first class office building in the
Navy
Yard. If Tenant becomes aware of any condition that is Landlord's
responsibility to repair, Tenant shall promptly notify Landlord of the
condition.
(b) Tenant
at its sole expense shall keep the Premises in a neat and orderly condition
consistent with a first class office building in the Navy
Yard. Alterations, repairs and replacements to the Property,
including the Premises, made necessary because of Tenant's Alterations or
installations, any use or circumstances special or particular to Tenant, or
any
act or omission of Tenant or its Agents shall be made at the sole expense of
Tenant to the extent not covered by any applicable insurance proceeds paid
to
Landlord.
-8-
10. Compliance
(a) Subject
to Landlord's obligation to construct the base building in accordance with
Exhibit "E-1" and to perform the Tenant's Improvement Work in accordance
with Exhibit "E-2" and Section 29 hereof and to make structural
alterations to the Building required by law (unless arising by reason of
Tenant's specific use or design requirements), Tenant will, at its expense,
promptly comply with all Laws now or subsequently pertaining to the Premises
or
Tenant's use or occupancy. Tenant will pay any taxes or other charges
by any authority on Tenant's property or trade fixtures or relating to Tenant's
use of the Premises. Neither Tenant nor its Agents shall use the
Premises in any manner that under any Law would require Landlord to make any
Alteration to or in the Building or Common Areas (without limiting the
foregoing, Tenant shall not use the Premises in any manner that would cause
the
Premises or the Property to be deemed a "place of public accommodation" under
the ADA if such use would require any such Alteration). Tenant shall
be responsible for compliance with the ADA, and any other Laws regarding
accessibility, solely with respect to any of Tenant's Alterations, equipment,
trade fixtures or its manner of use of the Premises.
(b) Tenant
will comply, and will cause its Agents to comply, with the Building Rules,
which
shall be applied uniformly to all tenants of the Building.
(c) Tenant
agrees not to do anything or fail to do anything which will increase the cost
of
Landlord's insurance or which will prevent Landlord from procuring policies
(including public liability) from companies and in a form satisfactory to
Landlord. If any breach of the preceding sentence by Tenant causes
the rate of fire or other insurance to be increased, Tenant shall pay the amount
of such increase as additional Rent within 30 days after being
billed.
(d) Tenant
agrees that (i) no activity will be conducted on the Premises that will use
or
produce any Hazardous Materials, except for activities which are part of the
ordinary course of Tenant's business and are conducted in accordance with all
Environmental Laws ("Permitted Activities"); (ii) the Premises will not be
used
for storage of any Hazardous Materials, except for materials used in the
Permitted Activities which are properly stored in a manner and location
complying with all Environmental Laws; (iii) no portion of the Premises or
Property will be used by Tenant or Tenant's Agents for disposal of Hazardous
Materials; (iv) Tenant will deliver to Landlord copies of all Material Safety
Data Sheets and other written information prepared by manufacturers, importers
or suppliers of any chemical; and (v) Tenant will immediately notify Landlord
of
any violation by Tenant or Tenant's Agents of any Environmental Laws or the
release or suspected release of Hazardous Materials in, under or about the
Premises, and Tenant shall immediately deliver to Landlord a copy of any notice,
filing or permit sent or received by Tenant with respect to the
foregoing. If at any time during or after the Term, any portion of
the Property is found to be contaminated by Tenant or Tenant's Agents or subject
to conditions prohibited in this Lease caused by Tenant or Tenant's Agents,
Tenant will indemnify, defend and hold Landlord harmless from all claims,
demands, actions, liabilities, costs, expenses, attorneys' fees, damages and
obligations of any nature arising from or as a result thereof, and Landlord
shall have the right to direct remediation activities, all of which shall be
performed at Tenant's cost. Tenant's obligations pursuant to this
subsection shall survive the expiration or termination of this
Lease.
-9-
(e) The
parties hereby confirm that, on or before the execution of this Lease, Landlord
has delivered to Tenant copies of the environmental report listed on Exhibit
"F" (the "Environmental Report"). Landlord hereby
represents and warrants to Tenant that, as of the Effective Date, Landlord
has
no actual knowledge of any violation of Environmental Laws at the Property,
except as disclosed by the Environmental Report (including any instruments
identified within the Environmental Report). As used in this Section
10(e), Landlord’s "actual knowledge" shall mean the actual knowledge on the
Effective Date, without investigation, of any of the following officers of
Landlord: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Vice President, ▇▇▇▇▇ ▇▇▇▇▇, Director of
Navy
Yard Development and Marketing, or ▇▇▇▇▇ ▇▇▇▇▇▇, Project
Director. Landlord agrees to use commercially reasonable efforts to
pursue available legal and equitable remedies against known third parties that
cause a release of Hazardous Materials onto the Property in violation of
Environmental Laws.
11. Signs
Landlord
will furnish Tenant building standard identification signage on the interior
Building directory, if applicable. Any additional signage will be at
the sole cost and expense of Tenant. Tenant shall not place any signs
on the Property without the prior consent of Landlord, other than suite signage
meeting Landlord's signage criteria and signs that are located wholly within
the
interior of the Premises and not visible from the exterior of the
Premises. Tenant shall maintain all signs installed by Tenant in good
condition. Tenant shall remove its signs at the termination of this Lease,
shall
repair any resulting damage, and shall restore the Property to its condition
existing prior to the installation of Tenant's signs. Notwithstanding
the foregoing, subject to the approval of the Navy Yard Design Review Committee
and the Philadelphia Industrial Development Corporation, Tenant shall be
entitled to install, at Tenant's expense, building signage in accordance with
the Signage Criteria attached hereto as Exhibit "H". Landlord
shall also make available space for Tenant's signage on the monument sign
serving the Building, and no other party shall have monument signage more
prominent than that provided to Tenant or any signage on the
Building. The immediately preceding sentence shall not be deemed to
prevent Landlord from allowing retail tenants of the Building from installing
customary interior and/or exterior retail signage on or around the Building
in
accordance with the Signage Criteria for the Building.
12. Alterations
Except
for
non-structural Alterations that (i) do not exceed $25,000.00 in the aggregate,
(ii) are not visible from the exterior of the Premises, (iii) do not affect
any
Building System or the structural strength of the Building, (iv) do not require
penetrations into the floor, ceiling or walls (other than piercing
non-structural walls with customary fasteners for the purpose of hanging
pictures, shelving and the like), and (v) do not require work within the walls,
below the floor or above the ceiling, Tenant shall not make or permit any
Alterations in or to the Premises without first obtaining Landlord's written
consent, which consent shall not be unreasonably withheld, conditioned or
delayed. Tenant shall request Landlord's consent by delivering a
written request therefor, together with such plans, specifications and other
information as Landlord may reasonably request. Landlord's consent
shall be deemed given unless Landlord notifies Tenant otherwise within ten
(10)
Business Days after the delivery of such written notice and other materials
to
Landlord. With respect to any Alterations made by or on behalf of
Tenant (whether or not the Alteration requires Landlord's consent): (i) not
less
than 10 days prior to commencing any Alteration, Tenant shall deliver to
Landlord the plans, specifications and necessary permits for the Alteration,
together with certificates evidencing that Tenant's contractors and
subcontractors have adequate insurance coverage naming Landlord and, if
requested by Landlord, Liberty Property Trust and any other Affiliate of
Landlord reasonably requested by Landlord, as their interests may appear as
additional insureds, (ii) Tenant shall obtain Landlord's prior written approval
of any contractor or subcontractor, such approval not to be unreasonably
withheld, conditioned or delayed, (iii) the Alteration shall be constructed
with
new materials, in a good and workmanlike manner, and in compliance with all
Laws
and the plans and specifications delivered to, and, if required above, approved
by Landlord, (iv) Tenant shall pay Landlord all reasonable out of pocket costs
and expenses incurred by Landlord in connection with Landlord's review of
Tenant's plans and specifications, and of any supervision or inspection of
the
construction Landlord deems necessary (provided that if Landlord does not
undertake the construction of the Alterations on Tenant's behalf, Tenant's
obligation to reimburse Landlord for its costs and expenses shall be limited
to
those reasonable out-of-pocket costs and expenses incurred by Landlord to review
Tenant's plans and specifications), and (v) upon Landlord's request Tenant
shall, prior to commencing any Alteration, provide Landlord reasonable evidence
of Tenant's ability to pay for the Alterations. If Landlord does not
respond to any written request made by Tenant to Landlord in accordance with
this Section 12 within ten (10) Business Days after such request is
received by Landlord, Landlord shall be deemed to have approved the
request. Any Alteration by Tenant shall be the property of Tenant
until the expiration or termination of this Lease; at that time without payment
by Landlord the Alteration shall remain on the Property and become the property
of Landlord unless Landlord gives notice to Tenant to remove it, in which event
Tenant will remove it, will repair any resulting damage and will restore the
Premises to the condition existing prior to Tenant's Alteration, excepting
only
normal wear and tear, casualty damage, or other conditions that Tenant is not
required to remedy under this Lease. At Tenant's request prior to
Tenant making any Alterations, Landlord will notify Tenant whether Tenant is
required to remove the Alterations at the expiration or termination of this
Lease. Notwithstanding the foregoing, Tenant shall not be required to
remove improvements to the Premises constructed as part of the Tenant's
Improvement Work. Tenant may install its trade fixtures, furniture
and equipment in the Premises, provided that the installation and removal of
them will not affect any structural portion of the Property, any Building System
or any other equipment or facilities serving the Building or any
occupant.
-10-
13. Mechanics'
Liens
Tenant
promptly shall pay for any labor, services, materials, supplies or equipment
furnished to Tenant in or about the Premises. Tenant shall keep the
Premises and the Property free from any liens arising out of any labor,
services, materials, supplies or equipment furnished or alleged to have been
furnished to Tenant. Tenant shall take all steps permitted by law in
order to avoid the imposition of any such lien. Should any such lien
or notice of such lien be filed against the Premises or the Property, Tenant
shall discharge the same by bonding or otherwise within 15 days after Tenant
has
notice that the lien or claim is filed regardless of the validity of such lien
or claim.
14. Landlord's
Right to Relocate Tenant; Right of Entry
(a) Prior
to the Commencement Date, Landlord may relocate Tenant from the portion of
the
Premises that is not a complete floor to comparable space on the 4th floor
of
the Building that is contiguous with the remainder of Tenant's Premises and
is
on the same side of the Building as the portion of the Premises being
relocated. Landlord will give Tenant at least 60 days advance notice
of relocation and will pay for all reasonable costs of such
relocation. Such a relocation shall not terminate, modify or
otherwise affect this lease except that "Premises" shall refer to the relocation
space rather than the old location identified in Section 1(a).
-11-
(b) Tenant
shall permit Landlord and its Agents to enter the Premises at all reasonable
times following 24 hours notice (except in an emergency, in which case Landlord
shall provide such notice as is reasonable under the circumstances) to inspect
or Maintain, the Premises or Property, to make Alterations to the Premises
(to
the extent required by law, code or ordinance, or that are otherwise approved
by
Tenant), to exhibit the Premises for the purpose of sale or financing, and,
during the last 12 months of the Term, to exhibit the Premises to any
prospective tenant. Landlord will make reasonable efforts not to
inconvenience Tenant in exercising such rights, but Landlord shall not be liable
for any interference with Tenant's occupancy resulting from Landlord's entry
unless caused by the gross negligence or willful misconduct of
Landlord.
15. Damage
by Fire or Other Casualty
(a) If
the Premises or Common Areas shall be damaged or destroyed by fire or other
casualty, Tenant shall promptly notify Landlord, and Landlord, subject to the
conditions set forth in this Section, shall repair such damage and restore
the
Premises or Common Areas to substantially the same condition in which they
were
immediately prior to such damage or destruction, but not including the repair,
restoration or replacement of the fixtures, equipment, or Alterations installed
by or on behalf of Tenant. Landlord shall notify Tenant, within 30
days after the date of the casualty, if Landlord anticipates that the
restoration will take more than 240 days from the date of the casualty to
complete; in such event, either Landlord or Tenant (unless the damage was caused
by Tenant) may terminate this Lease effective as of the date of casualty by
giving notice to the other within 30 days after Landlord's notice. If
Landlord terminates this Lease pursuant to the immediately preceding sentence,
and Landlord Commences to Reconstruct the Building within 240 days after the
casualty, then provided that (i) no Event of Default existed at the time of
the
casualty, (ii) Tenant has provided Landlord with Tenant's then-current notice
address in writing, and (iii) Tenant has not sublet or assigned all or any
part
of the Premises other than to an Affiliate of Tenant in accordance with this
Lease, then Landlord shall promptly notify Tenant of the Commencement of
Reconstruction of the Building in writing, and Tenant may, at Tenant's election,
thereafter reinstate this Lease by delivering written notice thereof to Landlord
within fifteen (15) days after Tenant's receipt of the aforementioned notice
from Landlord. Tenant shall be permitted to retake possession of the
Premises, and the abatement of Rent shall cease, upon the substantial completion
of the Premises (including access thereto and parking therefor) to substantially
the condition that existed prior to the casualty, including Tenant's fixtures,
equipment and Alterations, provided Tenant uses diligent efforts to complete
the
installation and construction of such fixtures, equipment and
Alterations. If Tenant fails to deliver notice of its desire to
reinstate the Lease to Landlord within the time period specified, Tenant shall
be deemed to have waived the right to reinstate the Lease set forth in this
Section 15(a). As used in this Section 15(a), the phrase "Commences
to Reconstruct the Building", and words of similar import, shall mean that
Landlord has mobilized personnel and materials on the Property and has commenced
construction activities on the Property intended to repair, restore or
reconstruct the Building to substantially the condition that existed prior
to
the casualty, tenant fixtures, equipment and Alterations excepted.
-12-
(b) If
a casualty occurs during the last 12 months of the Term, Landlord may terminate
this Lease unless Tenant has the right to extend the Term for at least 3 more
years and does so within 30 days after the date of the
casualty. Moreover, Landlord may terminate this Lease if the loss is
not covered by the insurance required to be maintained by Landlord under this
Lease. Tenant will receive an abatement of Minimum Annual Rent and
Annual Operating Expenses to the extent the Premises are rendered untenantable
as a result of the casualty.
16. Condemnation
If
(i) all
of the Premises are Taken, (ii) any part of the Premises is Taken and the
remainder is insufficient in Landlord's opinion for the reasonable operation
of
Tenant's business, or (iii) any of the Property is Taken, and, in Landlord's
opinion, it would be impractical or the condemnation proceeds are insufficient
to restore the remainder, then this Lease shall terminate as of the date the
condemning authority takes possession. If this Lease is not
terminated, Landlord shall restore the Building to a condition as near as
reasonably possible to the condition prior to the Taking, the Minimum Annual
Rent shall be abated for the period of time all or a part of the Premises is
untenantable in proportion to the square foot area untenantable, and this Lease
shall be amended appropriately. The compensation awarded for a Taking
shall belong to Landlord. Except for any relocation benefits to which
Tenant may be entitled, Tenant hereby assigns all claims against the condemning
authority to Landlord, including, but not limited to, any claim relating to
Tenant's leasehold estate.
17. Quiet
Enjoyment
Landlord
covenants that Tenant, upon performing all of its covenants, agreements and
conditions of this Lease, shall have quiet and peaceful possession of the
Premises as against anyone claiming by or through Landlord, subject, however,
to
the terms of this Lease.
18. Assignment
and Subletting
(a) Except
as provided in Section 18(b) below, Tenant shall not enter into nor permit
any Transfer voluntarily or by operation of law, without the prior consent
of
Landlord, which consent shall not be unreasonably withheld. Without
limitation, Tenant agrees that Landlord's consent shall not be considered
unreasonably withheld if (i) the proposed transferee is an existing tenant
of
Landlord or an affiliate of Landlord, (ii) the business, business reputation,
or
creditworthiness of the proposed transferee is unacceptable to Landlord, (iii)
except with respect to a proposed transferee that Tenant presents to Landlord
and with whom Landlord has had no prior dealings with respect to property in
the
Mid-Atlantic region and to whom Tenant is offering its space for not less than
the lesser of (A) the then-current Rent, or (B) the rent for other office space
marketed by Landlord or its Affiliate in the Mid-Atlantic region, Landlord
or an
Affiliate of Landlord has comparable space available for lease by the proposed
transferee, or (iv) Tenant is in default under this Lease or any act or omission
has occurred which would constitute a default with the giving of notice and/or
the passage of time. A consent to one Transfer shall not be deemed to
be a consent to any subsequent Transfer. In no event shall any
Transfer relieve Tenant from any obligation under this
Lease. Landlord's acceptance of Rent from any person shall not be
deemed to be a waiver by Landlord of any provision of this Lease or to be a
consent to any Transfer. Any Transfer not in conformity with this
Section 18 shall be void at the option of Landlord.
-13-
(b) Landlord's
consent shall not be required in the event of any Transfer by Tenant to an
Affiliate provided that (i) the Affiliate has shareholder equity (or its
equivalent) at least equal to that of Tenant as of the date immediately
preceding the Transfer, (ii) Tenant provides Landlord notice of the Transfer
at
least 15 days prior to the effective date, together with current financial
statements of the Affiliate certified by an executive officer of the Affiliate,
and (iii) in the case of an assignment or sublease, Tenant delivers to Landlord
an assumption agreement reasonably acceptable to Landlord executed by Tenant
and
the Affiliate, together with a certificate of insurance evidencing the
Affiliate's compliance with the insurance requirements of Tenant under this
Lease.
(c) The
provisions of Section 18(a) above notwithstanding, if Tenant proposes to
Transfer all of the Premises (other than to an Affiliate), Landlord may
terminate this Lease, either conditioned on execution of a new lease between
Landlord and the proposed transferee or without that condition. If
Tenant proposes to enter into a Transfer of less than all of the Premises (other
than to an Affiliate), Landlord may amend this Lease to remove the portion
of
the Premises to be transferred, either conditioned on execution of a new lease
between Landlord and the proposed transferee or without that
condition. If this Lease is not so terminated or amended, Tenant
shall pay to Landlord, immediately upon receipt, fifty percent (50%) of the
excess of (i) the net profit received by Tenant for the Transfer (after
deduction of brokerage commissions, legal fees, tenant improvement costs, rent
concessions and other reasonable and customary costs related to the Transfer),
over (ii) the Rent allocable to the Premises transferred.
(d) If
Tenant requests Landlord's consent to a Transfer, Tenant shall provide Landlord,
at least 15 days prior to the proposed Transfer, current financial statements
of
the transferee certified by an executive officer of the transferee, a complete
copy of the proposed Transfer documents, and any other information Landlord
reasonably requests. Immediately following any approved assignment or
sublease, Tenant shall deliver to Landlord an assumption agreement reasonably
acceptable to Landlord executed by Tenant and the transferee, together with
a
certificate of insurance evidencing the transferee's compliance with the
insurance requirements of Tenant under this Lease. Tenant agrees to
reimburse Landlord for reasonable out-of-pocket administrative and attorneys'
fees in connection with the processing and documentation of any Transfer for
which Landlord's consent is requested.
(e) Landlord
shall not convey its interest in this Lease or the Property, other than to
an
Affiliate of Landlord or to a lender providing mortgage financing for the
Property, until the Tenant Improvement Work is substantially complete (including
the completion of all punchlist items with respect thereto).
19. Subordination;
Mortgagee's Rights
(a) Tenant
accepts this Lease subject and subordinate to any Mortgage now or in the future
affecting the Premises, provided that Tenant's right of possession of the
Premises shall not be disturbed by the Mortgagee so long as Tenant is not in
default under this Lease. This clause shall be self-operative, but
within 10 days after request, Tenant shall execute and deliver any further
instruments confirming the subordination of this Lease and any further
instruments of attornment that the Mortgagee may reasonably request, in form
reasonably acceptable to Landlord, Tenant and the Mortgagee. However,
any Mortgagee may at any time subordinate its Mortgage to this Lease, without
Tenant's consent, by giving notice to Tenant, and this Lease shall then be
deemed prior to such Mortgage without regard to their respective dates of
execution and delivery; provided that such subordination shall not affect any
Mortgagee's rights with respect to condemnation awards, casualty insurance
proceeds, intervening liens or any right which shall arise between the recording
of such Mortgage and the execution of this Lease.
-14-
(b) Unless
otherwise approved by Landlord, Tenant and the Mortgagee, no Mortgagee shall
be
(i) liable for any act or omission of a prior landlord, (ii) subject to any
rental offsets or defenses against a prior landlord, (iii) bound by any
amendment of this Lease made without its written consent, or (iv) bound by
payment of Monthly Rent more than one month in advance or liable for any other
funds paid by Tenant to Landlord unless such funds actually have been
transferred to the Mortgagee by Landlord.
20. Tenant's
Certificate; Financial Information
Within
10
Business Days after Landlord's request from time to time in connection with
a
sale, financing or other transaction involving the Premises, (i) Tenant shall
execute, acknowledge and deliver to Landlord, for the benefit of Landlord,
Mortgagee, any prospective Mortgagee, and any prospective purchaser of
Landlord's interest in the Property, an estoppel certificate in the form of
attached Exhibit "C" (or other form requested by Landlord), modified as
necessary to accurately state the facts represented, and (ii) Tenant shall
furnish to Landlord, Landlord's Mortgagee, prospective Mortgagee and/or
prospective purchaser reasonably requested financial information (provided
that
so long as Tenant is a publicly traded company, publicly available financial
information shall be deemed to satisfy this requirement).
21. Surrender
(a) On
the date on which this Lease expires or terminates, Tenant shall return
possession of the Premises to Landlord in good condition, except for ordinary
wear and tear, and except for casualty damage or other conditions that Tenant
is
not required to remedy under this Lease. Prior to the expiration or
termination of this Lease, Tenant shall remove from the Property all furniture,
trade fixtures, equipment, wiring and cabling other than wiring and cabling
installed as part of the Tenant's Improvement Work (unless Landlord advises
Tenant otherwise), and all other personal property installed by Tenant or its
assignees or subtenants. Tenant shall repair any damage resulting
from such removal and shall restore the Property to good order and condition,
excepting only ordinary wear and tear, casualty damage or other conditions
that
Tenant is not required to remedy under this Lease. Any of Tenant's
personal property not removed as required shall be deemed abandoned, and
Landlord, at Tenant's expense, may remove, store, sell or otherwise dispose
of
such property in such manner as Landlord may see fit and/or Landlord may retain
such property or sale proceeds as its property. If Tenant does not
return possession of the Premises to Landlord in the condition required under
this Lease, Tenant shall pay Landlord all resulting damages Landlord may
suffer.
(b) If
Tenant remains in possession of the Premises after the expiration or termination
of this Lease, Tenant's occupancy of the Premises shall be that of a tenancy
at
will. Tenant's occupancy during any holdover period shall otherwise
be subject to the provisions of this Lease (unless clearly inapplicable), except
that (i) if Tenant give Landlord written notice of its intention to hold over
at
least ninety (90) days prior to the Expiration Date, then for the first ninety
(90) days of the holdover the Monthly Rent shall be one hundred fifty percent
(150%) of the Monthly Rent payable for the last full month immediately preceding
the holdover, and thereafter the Monthly Rent shall be double the Monthly Rent
for the last full month immediately preceding the holdover, or (ii) if Tenant
does not give Landlord written notice of its intention to hold over at least
ninety (90) days prior to the Expiration Date, then the Monthly Rent shall
be
double the Monthly Rent for the last full month immediately preceding the
holdover. No holdover or payment by Tenant after the expiration or
termination of this Lease shall operate to extend the Term or prevent Landlord
from immediate recovery of possession of the Premises by summary proceedings
or
otherwise. Any provision in this Lease to the contrary
notwithstanding, any holdover by Tenant shall constitute a default on the part
of Tenant under this Lease entitling Landlord to exercise, without obligation
to
provide Tenant any notice or cure period, all of the remedies available to
Landlord in the event of a Tenant default, and Tenant shall be liable for all
damages, including consequential damages, that Landlord suffers as a result
of
the holdover.
-15-
22. Defaults
- Remedies
(a) It
shall be an Event of Default:
(i) If
Tenant does not pay in full when due any and all Rent and, except as provided
in
Section 22(d) below, Tenant fails to cure such default on or before the
date that is five (5) Business Days after Landlord gives Tenant notice of
default;
(ii) If
Tenant enters into or permits any Transfer in violation of Section 18
above;
(iii) If
Tenant fails to observe and perform or otherwise breaches any other provision
of
this Lease, and, except as provided in Section 22(d) below, Tenant fails to
cure the default on or before the date that is ten (10) Business Days after
Landlord gives Tenant notice of default; provided, however, if the default
cannot reasonably be cured within ten (10) Business Days following Landlord's
giving of notice, Tenant shall be afforded additional reasonable time (not
to
exceed ninety (90) days following Landlord's notice) to cure the default if
Tenant begins to cure the default within ten (10) Business Days following
Landlord's notice and continues diligently in good faith to completely cure
the
default; or
(iv) If
Tenant becomes insolvent or makes a general assignment for the benefit of
creditors or offers a settlement to creditors, or if a petition in bankruptcy
or
for reorganization or for an arrangement with creditors under any federal or
state law is filed by or against Tenant, or a ▇▇▇▇ in equity or other proceeding
for the appointment of a receiver for any of Tenant's assets is commenced,
or if
any of the real or personal property of Tenant shall be levied upon; provided
that any proceeding brought by anyone other than Landlord or Tenant under any
bankruptcy, insolvency, receivership or similar law shall not constitute an
Event of Default until such proceeding has continued unstayed for more than
sixty (60) consecutive days.
(b) If
an Event of Default occurs, Landlord shall have the following rights and
remedies:
(i) Landlord,
without any obligation to do so, may elect to cure the default on behalf of
Tenant, in which event Tenant shall reimburse Landlord upon demand for any
sums
paid or costs incurred by Landlord (together with an administrative fee of
15%
thereof) in curing the default, plus interest at the Interest Rate from the
respective dates of Landlord's incurring such costs, which sums and costs
together with interest at the Interest Rate shall be deemed additional
Rent;
-16-
(ii) To
enter and repossess the Premises, by breaking open locked doors if necessary,
and remove all persons and all or any property, by action at law or otherwise,
without being liable for prosecution or damages. Landlord may, at
Landlord's option, make Alterations and repairs in order to relet the Premises
and relet all or any part(s) of the Premises for Tenant's
account. Tenant agrees to pay to Landlord on demand any deficiency
(taking into account all costs incurred by Landlord) that may arise by reason
of
such reletting. In the event of reletting without termination of this
Lease, Landlord may at any time thereafter elect to terminate this Lease for
such previous breach;
(iii) To
accelerate the whole or any part of the Rent for the balance of the Term, and
declare the same to be immediately due and payable; and
(iv) To
terminate this Lease and the Term without any right on the part of Tenant to
save the forfeiture by payment of any sum due or by other performance of any
condition, term or covenant broken.
(c) In
addition to the rights and remedies provided in Section 22(b) above, if an
Event of Default occurs relating to Tenant's non-payment of the Rent due
hereunder, Tenant hereby authorizes any attorney of any court of record of
the
Commonwealth of Pennsylvania to appear for Tenant and to confess judgment
against Tenant, and in favor of Landlord, for all Rent due hereunder plus costs
and an attorney's collection commission equal to the greater of 10% of all
Rent
or $1,000, for which this Lease or a true and correct copy hereof shall be
good
and sufficient warrant. TENANT UNDERSTANDS THAT THE FOREGOING
PERMITS LANDLORD TO ENTER A JUDGMENT AGAINST TENANT WITHOUT PRIOR NOTICE OR
HEARING. ONCE SUCH A JUDGMENT HAS BEEN ENTERED AGAINST TENANT, ONE OR
MORE WRITS OF EXECUTION OR WRITS OF GARNISHMENT MAY BE ISSUED THEREON WITHOUT
FURTHER NOTICE TO TENANT AND WITHOUT A HEARING, AND, PURSUANT TO SUCH WRITS,
LANDLORD MAY CAUSE THE SHERIFF OF THE COUNTY IN WHICH ANY PROPERTY OF TENANT
IS
LOCATED TO SEIZE TENANT'S PROPERTY BY LEVY OR ATTACHMENT. IF THE
JUDGMENT AGAINST TENANT REMAINS UNPAID AFTER SUCH LEVY OR ATTACHMENT, LANDLORD
CAN CAUSE SUCH PROPERTY TO BE SOLD BY THE SHERIFF EXECUTING THE WRITS, OR,
IF
SUCH PROPERTY CONSISTS OF A DEBT OWED TO TENANT BY ANOTHER ENTITY, LANDLORD
CAN
CAUSE SUCH DEBT TO BE PAID DIRECTLY TO LANDLORD IN AN AMOUNT UP TO BUT NOT
TO
EXCEED THE AMOUNT OF THE JUDGMENT OBTAINED BY LANDLORD AGAINST TENANT, PLUS
THE
COSTS OF THE EXECUTION. Such authority shall not be
exhausted by one exercise thereof, but judgment may be confessed as aforesaid
from time to time as often as any of the Rent and other sums shall fall due
or
be in arrears, and such powers may be exercised as well after the expiration
of
the initial term of this Lease and during any extended or renewal term of this
Lease and after the expiration of any extended or renewal term of this
Lease.
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Initials
on behalf of Tenant:_____
(d) Any
provision to the contrary in this Section 22 notwithstanding (other than
the last sentence of this Section 22(d)), (i) Landlord shall not be required
to
give Tenant the notice and opportunity to cure provided in Section
22(a) above more than twice in any consecutive 12-month period, and
thereafter Landlord may declare an Event of Default without affording Tenant
any
of the notice and cure rights provided under this Lease, and (ii) Landlord
shall
not be required to give such notice prior to exercising its rights if Tenant
fails to comply with the provisions of Sections 13, 18, 20 or 27 or in an
emergency. Notwithstanding the foregoing, Landlord shall provide
Tenant with additional written notice at least thirty (30) days prior to
exercising any confession of judgment against Tenant pursuant to Section
22(c) or Section 22(h); provided, however, that if Landlord elects to
confess judgment for Rent and attorney fees pursuant to Section
22(c) without first accelerating the Rent, thereby requiring multiple
confessions of judgment as Rent accrues, a single notice of such election
delivered to Tenant at least thirty (30) days prior to the first such exercise
of the confession of judgment shall suffice, and no further notices shall be
required for subsequent confessions of judgment for Rent and attorney
fees.
(e) No
waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent
breach, nor shall any forbearance by Landlord to seek a remedy for any breach
by
Tenant be a waiver by Landlord of any rights and remedies with respect to such
or any subsequent breach. Efforts by Landlord to mitigate the damages
caused by Tenant's default shall not constitute a waiver of Landlord's right
to
recover damages hereunder. No right or remedy herein conferred upon
or reserved to Landlord is intended to be exclusive of any other right or remedy
provided herein or by law, 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. No payment by Tenant or receipt or acceptance by Landlord of
a lesser amount than the total amount due Landlord under this Lease shall be
deemed to be other than on account, nor shall any endorsement or statement
on
any check or payment be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the balance of Rent due, or Landlord's right to pursue any other available
remedy.
(f) If
either party commences an action against the other party arising out of or
in
connection with this Lease, the prevailing party shall be entitled to have
and
recover from the other party reasonable attorneys' fees, costs of suit,
investigation expenses and discovery costs, including costs of
appeal.
(g) Landlord
and Tenant waive the right to a trial by jury in any action or proceeding based
upon or related to, the subject matter of this Lease.
(h) When
this Lease and the Term or any extension thereof shall have been terminated
on
account of any default by Tenant, or when the Term or any extension thereof
shall have expired, Tenant hereby authorizes any attorney of any court of record
of the Commonwealth of Pennsylvania to appear for Tenant and for anyone claiming
by, through or under Tenant and to confess judgment against all such parties,
and in favor of Landlord, in ejectment and for the recovery of possession of
the
Premises, for which this Lease or a true and correct copy hereof shall be good
and sufficient warrant. AFTER THE ENTRY OF ANY SUCH JUDGMENT
A WRIT OF POSSESSION MAY BE ISSUED THEREON WITHOUT FURTHER NOTICE TO TENANT
AND
WITHOUT A HEARING. If for any reason after such action shall
have been commenced it shall be determined and possession of the Premises remain
in or be restored to Tenant, Landlord shall have the right for the same default
and upon any subsequent default(s) or upon the termination of this Lease or
Tenant's right of possession as herein set forth, to again confess judgment
as
herein provided, for which this Lease or a true and correct copy hereof shall
be
good and sufficient warrant.
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Initials
on behalf of Tenant:_____
(i) The
warrants to confess judgment set forth above shall continue in full force and
effect and be unaffected by amendments to this Lease or other agreements between
Landlord and Tenant even if any such amendments or other agreements increase
Tenant's obligations or expand the size of the Premises.
(j) TENANT
EXPRESSLY AND ABSOLUTELY KNOWINGLY AND EXPRESSLY WAIVES AND RELEASES (i) ANY
RIGHT, INCLUDING, WITHOUT LIMITATION, UNDER ANY APPLICABLE STATUTE, WHICH TENANT
MAY HAVE TO RECEIVE A NOTICE TO QUIT PRIOR TO LANDLORD COMMENCING AN ACTION
FOR
REPOSSESSION OF THE PREMISES, AND (ii) ANY RIGHT WHICH TENANT MAY HAVE TO NOTICE
AND TO HEARING PRIOR TO A LEVY UPON OR ATTACHMENT OF TENANT'S PROPERTY OR
THEREAFTER.
Initials
on behalf of
Tenant:______
23. Tenant's
Authority
Tenant
represents and warrants to Landlord that: (i) Tenant is duly formed,
validly existing and in good standing under the laws of the state under which
Tenant is organized, and qualified to do business in the state in which the
Property is located, and (ii) the person(s) signing this Lease are duly
authorized to execute and deliver this Lease on behalf of Tenant.
24. Liability
of Landlord
The
word
"Landlord" in this Lease includes the Landlord executing this Lease as well
as
its successors and assigns, each of which shall have the same rights, remedies,
powers, authorities and privileges as it would have had it originally signed
this Lease as Landlord. Any such person or entity, whether or not
named in this Lease, shall have no liability under this Lease after it ceases
to
hold title to the Premises except for obligations already accrued (and, as
to
any unapplied portion of Tenant's Security Deposit, Landlord shall be relieved
of all liability upon transfer of such portion to its successor in
interest). Tenant shall look solely to Landlord's successor in
interest for the performance of the covenants and obligations of the Landlord
hereunder which subsequently accrue. Landlord shall not be deemed to
be in default under this Lease unless Tenant gives Landlord written notice
specifying the nature of the default and Landlord fails to cure the default
within thirty (30) days following receipt of Tenant's written notice, provided,
however, if the default cannot reasonably be cured within thirty (30) days
following Tenant's notice, Landlord shall be afforded additional reasonable
time
to cure the default but only if Landlord begins to cure the default within
thirty (30) days following Tenant's notice and continues diligently in good
faith to completely cure the default as promptly as reasonably
practicable. If Landlord does not cure a default within the
prescribed period, Tenant shall be entitled to cure the default on Landlord’s
behalf, and Landlord shall thereafter reimburse Tenant for Tenant’s reasonable
out of pocket costs incurred in curing such default. Such
reimbursement shall be paid by Landlord to Tenant within thirty (30) days
following Tenant’s delivery to Landlord of a written request therefor
accompanied by invoices and other documentation reasonably required by Landlord
evidencing such out of pocket costs. Tenant shall not be entitled to
set off any amounts owed by Landlord against Rent due hereunder. In
no event shall Landlord be liable to Tenant for any loss of business or profits
of Tenant or for consequential, punitive or special damages of any
kind. Neither Landlord nor any principal of Landlord nor any owner of
the Property, whether disclosed or undisclosed, shall have any personal
liability with respect to any of the provisions of this Lease or the Premises;
Tenant shall look solely to the equity of Landlord in the Property (and the
profits and proceeds resulting from any sale of the Premises or any insurance
proceeds or condemnation awards or payments in lieu thereof resulting from
casualty or condemnation of the Property) for the satisfaction of any claim
by
Tenant against Landlord.
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25. Miscellaneous
(a) The
captions in this Lease are for convenience only, are not a part of this Lease
and do not in any way define, limit, describe or amplify the terms of this
Lease.
(b) This
Lease represents the entire agreement between the parties hereto and there
are
no collateral or oral agreements or understandings between Landlord and Tenant
with respect to the Premises or the Property. No rights, easements or
licenses are acquired in the Property or any land adjacent to the Property
by
Tenant by implication or otherwise except as expressly set forth in this
Lease. This Lease shall not be modified in any manner except by an
instrument in writing executed by the parties. The masculine (or
neuter) pronoun and the singular number shall include the masculine, feminine
and neuter genders and the singular and plural number. The word
"including" followed by any specific item(s) is deemed to refer to examples
rather than to be words of limitation. The word "person" includes a
natural person, a partnership, a corporation, a limited liability company,
an
association and any other form of business association or
entity. Both parties having participated fully and equally in the
negotiation and preparation of this Lease, this Lease shall not be more strictly
construed, nor any ambiguities in this Lease resolved, against either Landlord
or Tenant.
(c) Each
covenant, agreement, obligation, term, condition or other provision contained
in
this Lease shall be deemed and construed as a separate and independent covenant
of the party bound by, undertaking or making the same, not dependent on any
other provision of this Lease unless otherwise expressly
provided. All of the terms and conditions set forth in this Lease
shall apply throughout the Term unless otherwise expressly set forth
herein.
(d) If
any provisions of this Lease shall be declared unenforceable in any respect,
such unenforceability shall not affect any other provision of this Lease, and
each such provision shall be deemed to be modified, if possible, in such a
manner as to render it enforceable and to preserve to the extent possible the
intent of the parties as set forth herein. This Lease shall be
construed and enforced in accordance with the laws of the state in which the
Property is located.
-20-
(e) This
Lease shall be binding upon and inure to the benefit of Landlord and Tenant
and
their respective heirs, personal representatives and permitted successors and
assigns.
(f) Tenant
shall not record this Lease or any memorandum without Landlord's prior
consent.
(g) This
Lease may be executed in any number of counterparts each of which, taken
together, shall constitute one and the same instrument. Faxed or
electronically delivered signatures shall be enforceable as original signatures
against the party delivering such signature.
26. Notices
Any
notice, consent or other communication under this Lease shall be in writing
and
addressed to Landlord or Tenant at their respective addresses specified in
Section 1 above (or to such other address as either
may designate by notice to the other) with a copy to any Mortgagee or other
party designated by Landlord. Each notice or other communication
shall be deemed given if sent by prepaid overnight delivery service or by
certified mail, return receipt requested, postage prepaid, with delivery in
any
case evidenced by a receipt, and shall be deemed to have been given on the
day
of actual delivery to the intended recipient or on the business day delivery
is
refused. The giving of notice by Landlord's attorneys,
representatives and agents under this Section shall be deemed to be the acts
of
Landlord.
27. Security
Deposit
(a) As
additional security for the full and prompt performance by Tenant of the terms
and covenants of this Lease, Tenant shall, on or before July 30, 2007, deliver
to Landlord an irrevocable negotiable letter of credit (and
“LC”), issued by a bank acceptable to Landlord, having a
banking office in Philadelphia, Pennsylvania, in form and content reasonably
acceptable to Landlord, for the benefit of Landlord, in the sum of One Hundred
Eighty Three Thousand Dollars ($137,000.00) (the “Security
Deposit”). Such LC shall have a term covering the entire
Term of the Lease and shall expire not less than sixty (60) days after the
expiration of the Term of the Lease.
(b) Tenant
shall not be entitled to reduce the face amount of the LC without Landlord’s
prior consent in each instance. Tenant's failure to keep the LC in
place for the hereinabove agreed amount during the entire Term of this Lease,
and for at least sixty (60) days after the expiration of the Term of this Lease,
shall constitute an Event of Default under this Lease and Landlord shall be
entitled, without notice, to present the LC for payment. Furthermore,
Landlord shall be entitled, without notice, to present the LC for payment (i)
upon the occurrence and during the continuance of an Event of Default under
this
Lease (including any holdover), or (ii) if the term of the LC is to expire
prior
to the period specified above and Tenant does not cause the term to be extended,
or a new LC issued (from an acceptable bank and in a form as specified above),
at least thirty (30) days prior to such expiration. In the event the
LC is presented for payment, Landlord may apply the proceeds on account of
the
Event of Default to the cure of any Event of Default by Tenant under this Lease
or to compensate Landlord for any loss or damage it may suffer by reason of
Tenant's default under this Lease. If the LC has been converted into
a cash Security Deposit, Tenant shall, upon demand, restore any portion of
the
Security Deposit which may be applied by Landlord in accordance with this
Lease. Notwithstanding the foregoing provisions of this Paragraph, to
the extent that Landlord has not applied any portion of the Security Deposit
on
account of a default under this Lease, the remaining Security Deposit (after
Tenant has made all payments to Landlord pursuant to the provisions of this
Lease) shall be returned to Tenant promptly after the expiration of this Lease
and the full performance of Tenant hereunder. Until returned to
Tenant after the expiration of the Lease and the full performance of Tenant
hereunder (including, without limitation, any payment due by Tenant as a result
of a reconciliation of Tenant's Additional Rent obligations), the Security
Deposit shall remain the property of Landlord.
-21-
28. Parking
Landlord
agrees that during the Term of this lease Tenant shall have the non-exclusive
right, in common with other occupants of the Building, to use the parking spaces
available to the Property, which shall be four (4.0) parking spaces for each
one
thousand (1,000) rentable square feet of the Building. The parking
spaces will be comprised of 3.5 parking spaces for each one thousand (1,000)
rentable square feet of the Premises located on-site with the balance consisting
of "on-street" parking.
29. Tenant
Improvement Work.
(a) Preliminary
Plans.
(i) Promptly
after the Effective Date, Tenant shall engage an architect reasonably acceptable
to Landlord to prepare preliminary plans for the design of the Premises (the
"Preliminary Plans"). Within 120 days after the Effective
Date, Tenant’s architect shall provide Landlord with a floor plan of the
Premises (that need not be in the form of the complete Preliminary Plans) that
identifies, subject to Landlord's reasonable approval, the demising wall of
that
portion of the Premises located on the second floor of the
Building. Thereafter, the location of the demising wall on the second
floor of the Building shall not be moved without Landlord's prior consent,
which
consent shall not be unreasonably withheld, conditioned or delayed if there
is
no other tenant that (A) has leased the remaining portion of the second floor,
or (B) with whom Landlord is in discussions respecting such a
lease. The complete Preliminary Plans shall be submitted to Landlord
for Landlord’s review not later than June 1, 2008. Within ten (10)
Business Days after the Landlord’s receipt of the Preliminary Plans, the
Landlord shall either (A) approve the Preliminary Plans, or (B) notify the
Tenant in writing of any modifications to the Preliminary Plans that the
Landlord desires (the "Preliminary Plans Modification
Notice"). If Landlord fails to deliver a Preliminary Plans
Modification Notice to the Tenant within the time period specified, Landlord
shall be deemed to have approved the Preliminary Plans.
(ii) To
the extent that Landlord's proposed modifications to the Preliminary Plans
are
required to conform the Preliminary Plans to (A) the Base Building Specification
attached hereto as Exhibit "E-1", (B) the Tenant Fit-Out Criteria
attached hereto as Exhibit "E-2", or (C) standards consistent with a
first class office building in the Navy Yard, Tenant shall proceed to revise
the
Preliminary Plans in accordance with Landlord's Preliminary Plans Modification
Notice and shall deliver revised Preliminary Plans to Landlord within ten (10)
Business Days after Tenant's receipt of such notice. Within ten (10)
Business Days after Landlord's receipt of the revised Preliminary Plans,
Landlord shall either (Y) approve the revised Preliminary Plans, or (Z) notify
Tenant in writing of any remaining modifications required to conform the
Preliminary Plans to the modifications required in Landlord's Preliminary Plans
Modification Notice (subject to the limitations set forth in clauses (A), (B)
and (C) above), whereupon Tenant shall, within ten (10) Business Days
thereafter, revise the Preliminary Plans accordingly and re-submit same to
Landlord for Landlord's final approval.
-22-
(iii) The
Preliminary Plans, as approved in accordance with this Section , are referred
to
herein as the "Approved Preliminary Plans". Following such
approval, Landlord and Tenant shall continue to work together collaboratively
to
refine and develop the Approved Preliminary Plans and, subject to the
limitations set forth in clauses (A), (B) and (C) of Section
29(a)(ii) above, and provided that Tenant shall not be permitted to modify
or relocate any demising wall of the Premises.
(b) Construction
Documents. On or before August 1, 2008, Tenant shall deliver to
Landlord all architectural and engineering documents reasonably required to
obtain reliable budget pricing from a qualified contractor for the Tenant's
Improvement Work (defined below) (collectively, the "Preliminary Construction
Documents"). The Preliminary Construction Documents shall be
based on the Approved Preliminary Plans (as modified in accordance with Section
29(a)(iii) above). Within ten (10) Business Days after
Landlord’s receipt of the Preliminary Construction Documents, Landlord shall
either (i) approve the Preliminary Construction Documents, or (ii) notify Tenant
in writing of any modifications to the Preliminary Construction Documents that
Landlord requires (the "Construction Documents Modification
Notice"). If Landlord fails to deliver a Construction Documents
Modification Notice to Tenant within the time period specified, Landlord shall
be deemed to have approved the Preliminary Construction Documents. To
the extent that Landlord's proposed modifications to the Preliminary
Construction Documents are required to conform the Preliminary Construction
Documents to (A) the Base Building Specification attached hereto as Exhibit
"E-1", (B) the Tenant Fit-Out Criteria attached hereto as Exhibit
"E-2", or (C) standards consistent with a first class office building in the
Navy Yard, Tenant shall proceed to revise the Preliminary Construction Documents
in accordance with Landlord's Construction Documents Modification Notice and
shall deliver revised Preliminary Construction Documents to Landlord within
ten
(10) Business Days after Tenant's receipt of such notice. Within ten
(10) Business Days after Landlord's receipt of the revised Preliminary
Construction Documents, Landlord shall either (Y) approve the revised
Preliminary Construction Documents, or (Z) notify Tenant in writing of any
remaining modifications required to conform the Preliminary Construction
Documents to the modifications required in Landlord’s Construction Documents
Modification Notice (subject to the limitations set forth in clauses (A), (B),
and (C) above), whereupon Tenant shall, within ten (10) Business Days
thereafter, revise the Preliminary Construction Documents accordingly and
re-submit same to Landlord for Landlord’s final approval. The
Preliminary Construction Documents, as approved in accordance with this Section
29(b), are referred to herein as the "Construction
Documents".
(c) Selection
of the General Contractor. Promptly following Landlord's final
approval of the Construction Documents, Landlord shall submit the Construction
Documents to at least two (2) general contractors that are reasonably acceptable
to Landlord and Tenant for competitive bidding of the work. Unless
otherwise directed or approved by Tenant, Landlord shall engage the general
contractor with the lowest comparable bid to perform the work.
(d) Permits and
Approvals. Promptly following the approval of the Construction
Documents and the selection of the general contractor, Landlord shall cause
its
general contractor to commence submissions to authorities having jurisdiction
to
obtain all requisite applications and all other applications and drawings
required to obtain all building, plumbing, electrical and other permits and
approvals required by governmental authorities having jurisdiction for the
construction of the Tenant Improvement Work depicted on the Construction
Documents (collectively, the "Permits"), at Tenant's cost and expense;
and Landlord shall thereafter diligently and in good faith prosecute or cause
its general contractor to prosecute such applications to
conclusion. Tenant and Landlord agree to join in the aforesaid
applications whenever such joinder shall be reasonably necessary and to
cooperate with the other party in the processing of the aforesaid applications
for approvals.
-23-
(e) Performance
of Tenant Improvement Work. Landlord shall perform
the work required to be performed pursuant to the Construction Documents and
the
Tenant Fit-Out Criteria attached hereto as Exhibit "E-2" (all such work,
together with Tenant's designing the Premises) being referred to collectively
herein as "Tenant's Improvement Work"). Upon reasonable prior
notice to Landlord, Tenant and its architects and engineers shall have the
right, at any reasonable time during the course of construction of Tenant's
Improvement Work, to inspect the work being done to ensure that the same is
being constructed in accordance with the approved plans therefor and in
compliance with the requirements of this Lease, provided Tenant shall not
interfere with Tenant's Improvement Work nor the occupancy of any other tenant
at the Building. Notwithstanding any approval by Landlord pursuant to
this Section 29(e), to the extent there is any conflict between the Approved
Preliminary Plans and/or the Construction Documents, on the one hand, and the
Tenant Fit-Out Criteria, on the other hand, the Tenant Fit-Out Criteria shall
control and be the prevailing standard to which the Tenant's Improvement Work
must conform.
(f) Tenant
Improvement Allowance. Landlord shall provide Tenant with a one-time
allowance (the "Tenant Improvement Allowance") equal to Sixty Dollars
($60.00) per rentable square foot of the Premises. The Tenant
Improvement Allowance shall be applied by Landlord exclusively against the
out
of pocket costs incurred by Landlord for (i) the Hard Costs to construct the
Tenant Improvement Work, (ii) costs incurred by Landlord on Tenant’s behalf yet
defined as Tenant responsibility under the Tenant Fit-Out Criteria in Exhibit
"E-2", (iii) the preparation of required space planning, architectural
and/or engineering documents respecting the Tenant Improvement Work, including
costs incurred to design the Premises and to prepare and revise (A) the
Preliminary Plans and the Approved Preliminary Plans, and (B) the Preliminary
Construction Documents and the Construction Documents, (iv) the fabrication
and
installation of Tenant’s signage, and (v) obtaining required state and local
permits and approvals respecting the Tenant Improvement Work. The
Tenant Improvement Allowance shall not be applied against the cost of Tenant's
furniture, equipment, moving expenses or consultant fees, and Tenant shall
have
no right to credit the Tenant Improvement Allowance against
Rent. Tenant shall reimburse Landlord for all costs incurred by
Landlord with respect to the Tenant's Improvement Work in excess of the Tenant
Improvement Allowance within ten (10) days after receiving Landlord's invoice
therefor. In the event this lease terminates prior to the natural
expiration of the Term, Tenant shall immediately repay to Landlord the
unamortized portion of the Tenant Improvement Allowance. Any excess
Tenant Improvement Allowance remaining after substantial completion of the
Tenant Improvement Work and the payment of all applicable sums pursuant to
this
Section 29 may, at Tenant's election, be applied against the next due
installments of Rent.
-24-
(g) Project
Management Fee. As consideration for Landlord
performing the Tenant's Improvement Work, Tenant shall pay to Landlord a fee
(the “Project Management Fee”) equal to 2.5% of all Hard Costs incurred
in connection with the Tenant Improvement Work. The Project
Management Fee shall be paid by Tenant to Landlord monthly, pro rata, as Hard
Costs are incurred for the Tenant Improvement Work.
(h) Construction
Warranty. Landlord covenants that it shall repair or replace at its
expense and without including such costs in Operating Expenses (i) all defective
materials or workmanship in the construction of the base building or the
Tenant's Improvement Work including, without limitation, the parking facilities,
sidewalks and landscaping, brought to its attention within one (1) year
following substantial completion of the work in question, or within such longer
period as may be provided by any warranty obtained by Landlord from its
contractor or supplier, (ii) any defects in any of the building systems that
were installed by or on behalf of Landlord including, without limitation, the
exterior Building shell and site lighting system, the utility systems, the
fire
sprinkler tamper and flow-alarm system and the fire suppression system, for
a
period of one (1) year following substantial completion of the work in question,
or within such longer period as may be provided by any warranty obtained by
Landlord from its contractor or supplier with respect to such building
system. The foregoing shall be the sole and exclusive warranty
relating to construction, and Tenant expressly WAIVES AND DISCLAIMS ALL OTHER
WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF HABITABILITY,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TENANT FURTHER
WAIVES ANY OTHER REMEDIES ARISING FROM ANY BREACH OF WARRANTIES RELATING TO
CONSTRUCTION OF THE PREMISES, INCLUDING WITHOUT LIMITATION ANY CLAIMS FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES.
(i) The
parties acknowledge that the Base Building Specification are subject to the
approval of the Navy Yard Design Review Committee and the Philadelphia
Industrial Development Corporation.
30. Brokers
Tenant
represents and warrants to Landlord that Broker is the only broker or finder
that Tenant had any dealings, negotiations or consultations with relating to
the
Premises or this Lease and that no other broker or finder called the Premises
to
Tenant's attention for Lease or took any part in any dealings, negotiations
or
consultations relating to the Premises or this Lease. Absent an
express written agreement to the contrary with Landlord, neither Broker nor
any
other agent or broker retained by Tenant, whether retained at or before the
Effective Date or at any time thereafter, shall be entitled to any commission
upon any renewal or extension of this Lease or any expansion of the
Premises. Tenant agrees to indemnify, defend and hold harmless
Landlord from and against all costs, fees (including, without limitation,
reasonable attorney's fees), expenses, liabilities and claims incurred or
suffered by Landlord arising from any breach by Tenant of Tenant's
representation and warranty in this Section 30. Landlord represents
and warrants that it has not engaged or dealt with any broker in connection
with
this Lease other than the Broker and Landlord agrees to indemnify, defend and
hold Tenant harmless from and against all costs, fees (including, without
limitation, reasonable attorney's fees), expenses, liabilities and claims
incurred or suffered by Tenant arising from any breach by Landlord of Landlord’s
representation and warranty in this Section 30. Landlord shall be
responsible for any and all commissions owing to the Broker in connection with
this Lease, which arrangement shall be set forth in a separate written agreement
between Landlord and Broker.
-25-
31. First
Floor Coffee Shop.
(a) Option. Commencing
on the Effective Date and continuing until the date that is four (4) months
after the Commencement Date (the "Option Period"), and provided no Event
of Default has occurred under this Lease, Tenant shall have the option (the
"Option") to lease not less than 3000 square feet on the first floor of
the Building, in a location reasonably acceptable to Landlord and Tenant, for
the purpose of operating a first class retail coffee shop and bakery serving
beverages, pastries and related item for "eat-in" and "take-out" service (the
"Coffee Shop"). If Tenant desires to exercise the Option,
Tenant shall notify Landlord thereof in writing no later than the last day of
the Option Period. If Tenant fails to exercise the Option within the
time period specified, Tenant shall been deemed to have waived the Option and
this Section 31(a) shall be void and of no further force or
effect. If Tenant exercises the Option within the time period
specified, Landlord and Tenant shall promptly proceed to negotiate in good
faith
a lease for the Coffee Shop (the "Coffee Shop Lease") which shall be on
substantially identical terms to this Lease, except as follows: (i)
the use of the premises shall be solely for a first class retail coffee shop
and
bakery serving beverages, pastries and related items for "eat-in" and "take-out"
service, (ii) services provided by Landlord, and the corresponding operating
expenses to be paid by Tenant, shall be adjusted as required for a retail food
service operation (including, without limitation, reflecting that Tenant shall
provide its own janitorial services for the Coffee Shop premises), and (iii)
the
parties shall make such other modifications as may be reasonably necessary
to
reflect the retail nature of the Coffee Shop Lease. If Landlord and
Tenant do not enter into a mutually acceptable Coffee Shop Lease by the date
that is the earlier of (A) twenty (20) Business Days after Tenant's exercise
of
its Option under this Section 31(a), or (B) one hundred thirty-five (135) days
after the Effective Date, then the Option, as well as the Right of First Offer
set forth in Section 31(b) below, shall be void and of no further force or
effect and Landlord shall be free to lease the space in question, or any other
space, to any other party at any time on any terms and conditions acceptable
to
Landlord.
(b) Right
of First Offer. Provided no Event of Default has occurred under this
Lease, if a party unaffiliated with Landlord or Tenant requests that Landlord
provide such third party with a proposal for the use of available retail space
on the first floor of the Building as a retail coffee shop or bakery that does
not serve lunch or dinner, Landlord shall notify Tenant thereof in writing
("Landlord's Notice"), which notice shall set forth the material business
terms (including without limitation, the rent, term, permitted use, tenant
allowance (if any) and other material business terms) upon which Landlord would
be willing to lease such space for such use. Within five (5) Business
Days after its receipt of Landlord's Notice, Tenant shall have the right (the
"Right of First Offer") notify Landlord in writing whether Tenant desires
to enter into a lease to operate a Coffee Shop on the terms set forth in
Landlord's Notice. If Tenant fails to deliver such notice to Landlord
within the time period specified, Tenant shall be deemed to have elected not
to
exercise the Right of First Offer. If Tenant elects, or is deemed to
have elected, not to exercise the Right of First Offer, Tenant shall have no
further rights hereunder with respect to such space and Landlord shall be free
to lease the space in question to any third party at any time on any terms
and
conditions acceptable to Landlord; provided, however, that Landlord shall not
lease the space in question to any third party for use as a coffee shop or
bakery that does not serve lunch or dinner for a rental rate that is less than
95% of the rent set forth in Landlord's Notice, or on business terms that are
materially more favorable to the tenant than those set forth in Landlord's
Notice, without again offering the space to Tenant on such more favorable terms,
whereupon the procedure set forth above in this Section 31(b) shall begin
again. If Tenant notifies Landlord of its desire to lease the space
in question on the terms set forth in Landlord's Notice, Landlord and Tenant
shall promptly proceed to negotiate in good faith a Coffee Shop Lease
substantially identical to this Lease, except as follows: (i) the terms of
the
Coffee Shop Lease shall conform to the terms set forth in the Landlord's Notice,
(ii) the use of the premises shall be solely for a first class retail coffee
shop and bakery serving beverages, pastries and related items for "eat-in"
and
"take-out" service, (iii) services provided by Landlord, and the corresponding
operating expenses to be paid by Tenant, shall be adjusted as required for
a
retail food service operation (including, without limitation, reflecting that
Tenant shall provide its own janitorial services for the Coffee Shop premises),
and (iv) the parties shall make such other modifications as may be reasonably
necessary to reflect the retail nature of the Coffee Shop Lease. If
Landlord and Tenant do not enter into a mutually acceptable Coffee Shop Lease
within ten (10) Business Days after Tenant's exercise of its Right of First
Offer as set forth above, then this Section 31(b), as well as the option set
forth in Section 31(a) above, shall be void and of no further force or
effect and Landlord shall be free to lease the space in question, or any other
space, to any other party at any time on any terms and conditions acceptable
to
Landlord. Notwithstanding anything herein to the contrary, the Right
of Fist Offer shall be void and of no further force or effect upon Landlord
executing a valid lease for a coffee shop, bakery or similar use within the
Building with a third party tenant, subject to the terms of this Section
31(b). If Landlord delivers a Landlord Notice pursuant to this
Section 31(b) during the Option Period described in Section 31(a), the
terms of Section 31(a) shall control.
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(c) The
provisions of this Section 31 are personal to the Tenant named in the preamble
to this Lease, and is non-transferable to any assignee, sublessee or other
party, other than an Affiliate of Tenant, regardless of whether any such
assignment or sublease was made with or without Landlord's consent.
32. Additional
Space
Provided
that no Event of Default has occurred within the immediately preceding twelve
(12) months, that Tenant is not then in default of this Lease and that there
then exists no event that with the giving of notice and/or the passage of time
would constitute a default, and that Tenant is the sole occupant of the
Premises, Tenant shall have the right of first offer to lease additional
available space within the Building that is within Landlord's control and not
subject to any other right of first offer or right of first refusal (the
"Additional Space"), subject to the following:
(a) If
Tenant desires to lease Additional Space within the Building, Tenant shall
notify Landlord of such desire in writing. Thereafter, for a period
of twelve (12) months after Landlord's receipt of such notice, Landlord shall
notify Tenant if and when Additional Space becomes available for rental by
any
party other than the tenant then in occupancy of the Additional
Space. Landlord shall have no obligation to notify Tenant of the
availability of any Additional Space after the expiration of the aforementioned
twelve (12) month period unless Tenant again notifies Landlord in writing of
its
desire to lease Additional Space, in which case the provision of the immediately
preceding sentence shall begin again. Tenant shall have ten (10)
Business Days following receipt of Landlord's notice within which to notify
Landlord in writing that Tenant is interested in negotiating terms for leasing
such Additional Space and to have its offer considered by Landlord prior to
the
leasing by Landlord of the Additional Space to a third
party. If Tenant notifies Landlord within such time period
that Tenant is so interested, then Landlord and Tenant shall have 30 days
following Landlord’s receipt of such notice from Tenant within which to
negotiate in good faith mutually satisfactory terms for the leasing of the
Additional Space by Tenant and to execute an amendment to this Lease
incorporating such terms or a new lease for the Additional Space.
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(b) If
Tenant does not notify Landlord within such ten (10) Business Days of its
interest in leasing the Additional Space or if Tenant does not execute such
amendment or lease within such 30 days, if applicable, then this right of first
offer to lease the Additional Space in question will lapse and be of no further
force or effect and Landlord shall have the right to lease all or part of such
Additional Space to any other party at any time on any terms and conditions
acceptable to Landlord.
(c) This
right of first offer to lease the Additional Space is personal to the tenant
named in the Preamble to this Lease and is non-transferable to any assignee,
sublessee or other party, other than an Affiliate of Tenant, regardless of
whether any such assignment or sublease was made with or without Landlord’s
consent.
33. Keystone
Opportunity Zone Provisions
The
parties acknowledge that the Premises is located within a Keystone Opportunity
Improvement Zone, and Tenant hereby covenants to comply with the requirements
governing the use and occupancy of property located within a Keystone
Opportunity Improvement Zone under applicable provisions of Pennsylvania law
during the entire Term of this Lease and agrees that such compliance shall
be
the sole responsibility of Tenant and that Landlord shall have no responsibility
or liability therefor. To the extent that certain filings with
applicable authorities in connection with the Keystone Opportunity Improvement
Zone are required by law to be made by Landlord and not Tenant, Landlord agrees
to timely make such filings.
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IN
WITNESS WHEREOF, Landlord and Tenant have executed this Lease on the
respective date(s) set forth below.
Landlord:
L/S
THREE CRESCENT DRIVE, LP
By: L/S
Three Crescent Drive, LLC,
its
General Partner
By: Liberty
Property/Synterra Limited
Partnership,
its sole member
By: Liberty
Property Philadelphia Navy Yard
Limited
Partnership, its General Partner
By: Liberty
Property Philadelphia Navy Yard
Corporation,
its
General Partner
| Date signed: |
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By:
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| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||
| Title: Senior Vice President | ||||
| Date signed: |
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|
By:
|
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| Name: | ||||
| Title: | ||||
| Tenant: | ||||
| TASTY BAKING COMPANY | ||||
| Date signed: |
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By:
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| Name: | ||||
| Title: | ||||
Rider
1 to Lease Agreement
(Multi-Tenant
Office)
ADDITIONAL
DEFINITIONS
"ADA"
means the Americans With Disabilities Act of 1990 (42 U.S.C. § 1201 et seq.), as
amended and supplemented from time to time.
"Affiliate"
means (i) any entity controlling, controlled by, or under common control with,
Tenant, (ii) any successor to Tenant by merger, consolidation or reorganization,
and (iii) any purchaser of all or substantially all of the assets of Tenant
as a
going concern.
"Agents"
of a party means such party's employees, agents, representatives, contractors,
licensees or invitees.
"Alteration"
means any addition, alteration or improvement to the Premises or Property,
as
the case may be, other than those constructed as part of the Tenant Improvement
Work.
"Building
Rules" means the rules and regulations attached to this Lease as Exhibit
"B" as they may be amended from time to time.
"Building
Systems" means any electrical, mechanical, structural, plumbing, heating,
ventilating, air conditioning, sprinkler, life safety or security systems
serving the Building.
"Business
Day" means any day that is not a Saturday, Sunday or Holiday.
"Common
Areas" means all areas and facilities as provided by Landlord from time to
time
for the use or enjoyment of all tenants in the Building or Property, including,
if applicable, lobbies, hallways, restrooms, elevators, driveways, sidewalks,
parking, loading and landscaped areas.
"Environmental
Laws" means all present or future federal, state or local laws, ordinances,
rules or regulations (including the rules and regulations of the federal
Environmental Protection Agency and comparable state agency) relating to the
protection of human health or the environment.
"Event
of
Default" means a default described in Section 22(a) of this
Lease.
"Excusable
Delay" means strikes; governmental restrictions, limitations and approvals
which
could not have been reasonably anticipated by Landlord; unavailability or delays
in obtaining materials not caused by the negligence of Landlord; war or other
national emergency; acts of terrorism; accidents; floods; delays caused by
Tenant or Tenant's agents or contractors; fire damage or other casualties not
caused by the negligence of Landlord; soil conditions which could not have
been
reasonably anticipated by Landlord; extraordinary weather conditions; or any
cause similar or dissimilar to the foregoing beyond the reasonable control
of
Landlord or Landlord's contractors, subcontractors or suppliers, and not
avoidable by the application of due diligence.
"Hard
Costs" means all out-of-pocket costs incurred for the physical construction
of
the work in question, including (without limitation), the cost of demolition,
debris removal, clearing, grading, curbing, fill, labor, materials, equipment
and supplies.
"Hazardous
Materials" means pollutants, contaminants, toxic or hazardous wastes or other
materials the removal of which is required or the use of which is regulated,
restricted, or prohibited by any Environmental Law.
"Holidays"
means the days observed as holidays by the United States government, the
Commonwealth of Pennsylvania or the City of Philadelphia, as well as days
declared as holidays in any union contract affecting the operation of the
Building.
"Interest
Rate" means interest at the rate of 1 ½% per month.
"Land"
means the lot or plot of land on which the Building is situated or the portion
thereof allocated by Landlord to the Building.
"Laws"
means all laws, ordinances, rules, orders, regulations, guidelines and other
requirements of federal, state or local governmental authorities or of any
private association or contained in any restrictive covenants or other
declarations or agreements, now or subsequently pertaining to the Property
or
the use and occupation of the Property.
"Lease
Year" means the period from the Commencement Date through the succeeding 12
full
calendar months (including for the first Lease Year any partial month from
the
Commencement Date until the first day of the first full calendar month) and
each
successive 12-month period thereafter during the Term.
"Maintain"
means to provide such maintenance, repair and, to the extent necessary and
appropriate, replacement, as may be needed to keep the subject property in
good
condition and repair.
"Monthly
Rent" means the monthly installment of Minimum Annual Rent plus the monthly
installment of estimated Annual Operating Expenses payable by Tenant under
this
Lease.
"Mortgage"
means any mortgage, deed of trust or other lien or encumbrance on Landlord's
interest in the Property or any portion thereof, including without limitation
any ground or master lease if Landlord's interest is or becomes a leasehold
estate.
"Mortgagee"
means the holder of any Mortgage, including any ground or master lessor if
Landlord's interest is or becomes a leasehold estate.
"Navy
Yard" means the land in
Philadelphia, Pennsylvania, that previously comprised the Philadelphia Naval
Shipyard and thereafter was conveyed by the U.S. Department of the Navy to
the
Philadelphia Authority for Industrial Development.
"Normal
Business Hours" means 8:00 a.m. to 6:00 p.m., Monday through Friday, legal
holidays excepted.
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"Operating
Expenses" means all costs, charges and expenses incurred or charged by Landlord
in connection with the ownership, operation, maintenance and repair of, and
services provided to, the Property, including, but not limited to, (i) the
charges at standard retail rates for any services provided by Landlord pursuant
to Section 7 of this Lease, (ii) the cost of insurance carried by Landlord
pursuant to Section 8 of this Lease together with the cost of any deductible
paid by Landlord in connection with an insured loss, (iii) Landlord's cost
to
Maintain the Property pursuant to Section 9 of this Lease, (iv) the cost of
trash collection, (v) all levies, taxes (including real estate taxes, sales
taxes and gross receipt taxes), assessments, liens, license and permit fees,
together with the reasonable cost of contesting any of the foregoing, which
are
applicable to the Term, and which are imposed by any authority or under any
Law,
or pursuant to any recorded covenants or agreements, upon or with respect to
the
Property, or any improvements thereto, or directly upon this Lease or the Rent
or upon amounts payable by any subtenants or other occupants of the Premises,
or
against Landlord because of Landlord's estate or interest in the Property,
(vi)
the annual amortization (over their estimated economic useful life or payback
period, whichever is shorter) of the costs (including reasonable financing
charges) of capital improvements or replacements (a) required by any Laws,
(b)
made for the purpose of reducing Operating Expenses, or (c) made for the purpose
of directly enhancing the safety of tenants in the Building, (vii) a management
and administrative fee, and (viii) a tenant service charge. The
foregoing notwithstanding, Operating Expenses will not include: (a)
depreciation on the Building, (b) financing and refinancing costs (except as
provided above), interest on debt or amortization payments on any mortgage,
or
rental under any ground or underlying lease, (c) leasing commissions,
advertising expenses, tenant improvements or other costs directly related to
the
leasing of the Property, (d) income, excess profits or corporate capital stock
tax imposed or assessed upon Landlord, unless such tax or any similar tax is
levied or assessed in lieu of all or any part of any taxes includable in
Operating Expenses above, (e) any costs incurred in the removal, cleaning,
abatement or remediation of any Hazardous Materials present on the Property
in
violation of Environmental Laws and resulting from the negligence or willful
misconduct of Landlord or any Affiliate of Landlord, (f) attorney’s fees and
disbursements incurred in connection with the leasing of the Building or the
securing or defense of Landlord’s title to the Land or Building, or (g) costs of
repairs or replacements occasioned by fire or other casualty, the costs of
which
are covered by insurance required to be maintained by Landlord under this Lease
or reimbursed by governmental authorities in eminent domain or reimbursed by
third parties. If Landlord elects to prepay real estate taxes during
any discount period, Landlord shall be entitled to the benefit of any such
prepayment. Landlord shall have the right to directly perform (by
itself or through an affiliate) any services provided under this Lease provided
that the Landlord's charges included in Operating Expenses for any such services
shall not exceed competitive market rates for comparable services.
"Plant
Lease" means that certain Industrial Lease Agreement between Liberty
Property/Synterra Limited Partnership, as landlord, and Tenant, as tenant,
dated
May 8, 2007, respecting Tenant's industrial baking facility located in the
▇▇▇▇▇▇ Point portion of the Navy Yard, as more particularly described in the
Plant Lease.
"Property"
means the Land, the Building, the Common Areas, and all appurtenances to
them.
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"Rent"
means the Minimum Annual Rent, Annual Operating Expenses and any other amounts
payable by Tenant to Landlord under this Lease.
"Taken"
or
"Taking" means acquisition by a public authority having the power of eminent
domain by condemnation or conveyance in lieu of condemnation.
"Tenant's
Share" means the percentage obtained by dividing the rentable square feet of
the
Premises by the rentable square feet of the Building, as set forth in Section
1 of this Lease.
"Transfer"
means (i) any assignment, transfer, pledge or other encumbrance of all or a
portion of Tenant's interest in this Lease, (ii) any sublease, license or
concession of all or a portion of Tenant's interest in the Premises, or (iii)
any transfer of a controlling interest in Tenant.
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