EXHIBIT 10.2
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NEW YORK
TRIPLE NET LEASE
BRANDYWINE OPERATING PARTNERSHIP, L.P.,
Landlord
and
▇▇▇▇▇▇ INTERNATIONAL CORP.
Tenant
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
TABLE OF CONTENTS
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Page
1. SUMMARY OF DEFINED TERMS.........................................1
2. PREMISES.........................................................3
3. TERM.............................................................3
4. CONSTRUCTION BY LANDLORD.........................................3
5. FIXED RENT; SECURITY DEPOSIT.....................................3
6. ADDITIONAL RENT..................................................6
7. ELECTRICITY AND GAS CHARGES.....................................9
8. SIGNS; USE OF PREMISES AND COMMON AREAS.........................10
9. ENVIRONMENTAL MATTERS...........................................11
10. TENANT'S ALTERATIONS...........................................12
11. CONSTRUCTION LIENS.............................................13
12. ASSIGNMENT AND SUBLETTING......................................13
13. LANDLORD'S RIGHT OF ENTRY......................................15
14. REPAIRS AND MAINTENANCE........................................16
15. INSURANCE; SUBROGATION RIGHTS..................................17
16. INDEMNIFICATION................................................18
17. QUIET ENJOYMENT................................................19
18. FIRE DAMAGE....................................................19
19. SUBORDINATION; RIGHTS OF MORTGAGEE.............................20
20. CONDEMNATION...................................................21
21. ESTOPPEL CERTIFICATE...........................................21
22. DEFAULT........................................................21
23. TERMINATION ON DEFAULT.........................................23
24. DAMAGES........................................................24
25. CURING DEFAULTS................................................25
26. LANDLORD'S REPRESENTATIONS AND WARRANTIES......................25
27. SURRENDER......................................................26
28. RULES AND REGULATIONS..........................................26
29. GOVERNMENTAL REGULATIONS.......................................26
30. NOTICES........................................................27
31. BROKERS........................................................27
32. INTENTIONALLY DELETED..........................................27
33. LANDLORD'S LIABILITY...........................................27
34. AUTHORITY......................................................28
35. NO OFFER.......................................................28
36. RENEWAL........................................................28
37. MISCELLANEOUS PROVISIONS.......................................29
38. WAIVER OF TRIAL BY JURY........................................31
39. CONSENT TO JURISDICTION........................................31
40. SECURITY CAMERAS...............................................31
EXHIBITS
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EXHIBIT "A" SPACE PLAN
EXHIBIT "B" CONFIRMATION OF LEASE TERM
EXHIBIT "C" BUILDING RULES AND REGULATIONS
EXHIBIT "D" STANDARD CLEANING SPECIFICATIONS - INTENTIONALLY DELETED
EXHIBIT "E" PREMISES HVAC DIAGRAM INCLUDING LIST OF AIR CONDITIONING UNITS
EXHIBIT "F" LANDLORD'S HVAC SERVICE CONTRACT SPECIFICATIONS
EXHIBIT "G" PARKING DIAGRAM
EXHIBIT 99.1 PRESS RELEASE
LEASE
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THIS LEASE ("Lease") entered into as of the 8th day of March, 2001, between
BRANDYWINE OPERATING PARTNERSHIP, L.P., a Delaware limited partnership
("Landlord"), and ▇▇▇▇▇▇ INTERNATIONAL CORP., a Delaware corporation, with its
principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
("Tenant").
WITNESSETH
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In consideration of the mutual covenants herein set forth, and intending to
be legally bound, the parties hereto covenant and agree as follows:
1. SUMMARY OF DEFINED TERMS.
The parties agree that the following defined terms, as used in this
Lease, shall have the meanings and shall be construed as set forth below:
(a) "Building": The Building located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇.
(b) "Project": The Building, the land and all other improvements located
at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇.
(c) "Premises": The parties hereto hereby stipulate and agree is a
24,439 rentable square foot portion of the Building shown on the space plan
attached hereto as Exhibit "A" and made a part hereof.
(d) "Term": From the Commencement Date for a period of one hundred and
twenty (120) months.
(e) "Fixed Rent":
MONTHLY ANNUAL
LEASE YEAR PER R.S.F. INSTALLMENTS FIXED RENT
---------- --------- ------------ ----------
Months 1-12 $14.50 $29,531.00 $354,372.00
Months 13-24 $14.93 $30,406.00 $364,872.00
Months 25-36 $15.38 $31,323.00 $375,876.00
Months 37-48 $15.84 $32,259.00 $387,108.00
Months 49-60 $16.32 $33,237.00 $398,844.00
Month 61-72 $16.81 $34,235.00 $410,820.00
Month 73-84 $17.31 $35,253.00 $423,026.00
Month 85-96 $17.83 $36,312.00 $435,744.00
Month 97-108 $18.37 $37,412.00 $448,944.00
Month 109-120 $18.92 $38,532.00 $462,384.00
(f) "Letter of Credit": $750,000.00.
(g) Intentionally Omitted.
(h) "Tenant's Allocated Share": 48.07%; Tenant's Allocated Share shall
be equal to a fraction (expressed as a percentage), the numerator of which shall
be the rentable square footage of the Premises and the denominator of which
shall be the aggregate rentable square footage at the Project.
(i) "Rentable Area": Premises 24,439 ft.
Building 50,841 ft., or as it may change from time
to time
(j) "Permitted Uses": Tenant's use of the Premises shall be limited to
general office, including a travel agency, and research and development use,
including a showroom and training facility and for storage and light equipment
service ancillary thereto, and for no other purposes. The use of the Premises
for heavy manufacturing purposes shall be strictly prohibited hereunder.
Tenant's rights to use the Premises shall be subject to all applicable laws and
governmental rules and regulations and to all reasonable requirements of the
insurers of the Building.
(k) "Broker": None
(l) "Notice Address/Contact"
Tenant: ▇▇▇▇▇▇ International Corp.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to:
Ruskin, Moscou, ▇▇▇▇▇ & Faltischek, P.C.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Landlord: BRANDYWINE OPERATING PARTNERSHIP, L.P.
c/o Brandywine Realty Trust
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇, Regional Vice President
with a copy to:
Brandywine Realty Trust
▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, General Counsel
and to: Lazer, Aptheker, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
(m) "Tenant's North American Industry Classification Number": 42183.
(n) "Additional Rent": All sums of money or charges required to be paid
by Tenant under this Lease other than Fixed Rent, whether or not such sums or
charges are designated as "Additional Rent".
(o) "Rent": All Annual Fixed Rent, monthly installments of Annual Fixed
Rent, Fixed Rent and Additional Rent payable by Tenant to Landlord under this
Lease.
2. PREMISES. Landlord does hereby lease, demise and let unto Tenant and
Tenant does hereby hire and lease from Landlord the Premises for the Term, upon
the provisions, conditions and limitations set forth herein.
3. TERM.
(a) The Term of this Lease shall commence on the date (the "Commencement
Date") on which Tenant transfers title to the Project to Landlord pursuant to
the terms and conditions of that certain contract of sale dated December 19,
2000 by and between the parties hereto (the "Contract of Sale"). The term of
this Lease shall expire on the date which is one hundred and twenty (120) months
from the Commencement Date (the "Expiration Date"), unless sooner terminated
pursuant to the terms hereof.
(b) Notwithstanding anything contained in subparagraph (a) of this
Paragraph 3 to the contrary, if the Commencement Date is not the first day of
the month, the first lease year shall include the additional period from the
Commencement Date to the end of the then current month. Each succeeding lease
year shall end on the one year anniversary date of the last day of the preceding
lease year. For example, if the Commencement Date is September 1, 2000, the
first lease year would begin on September 1, 2000 and would end on August 31,
2001, and each such succeeding lease year would end on August 31st. If, however,
the Commencement Date is September 2, 2000, the first Lease Year would end on
September 30, 2001, the second Lease Year would commence on October 1, 2001, and
each succeeding Lease Year would end on September 30th.
(c) The Commencement Date shall be confirmed by Landlord and Tenant by
the execution of a Confirmation of Lease Term in the form attached hereto as
Exhibit "B". If Tenant fails to execute or object to the Confirmation of Lease
Term within ten (10) business days of its delivery, Landlord's determination of
such dates shall be deemed accepted.
4. CONSTRUCTION BY LANDLORD.
(a) Tenant hereby acknowledges that it has inspected the Premises,
agrees to take the Premises in its "as is" condition and further agrees that
Landlord shall not be required to perform any work, make any installations or
incur any expense in connection with Tenant's occupancy of the Premises, except
as specifically set forth herein. Notwithstanding the foregoing, Landlord shall
perform the following work in and to the Premises (collectively, "Landlord's
Work"): (a) erect a demising wall between the Premises and the remainder of the
Building; and (b) separate existing utility and other Building systems and
install a direct meter for the Premises. The electric current service to the
Premises shall be no less than 800 amperes.
(b) Tenant shall be solely responsible for moving its furniture and
equipment, its telephone, computer and data systems (including all wiring,
panels, conduits and outlets) and all other property in the Premises (at
Tenant's sole cost and expense) in order to permit Landlord to perform
Landlord's Work. Tenant hereby acknowledges that Landlord's Work shall be
performed while Tenant is occupying the Premises. Tenant hereby acknowledges and
agrees that Landlord shall not be liable for any inconvenience to Tenant or for
interference with Tenant's business or use of the Premises during the
performance of Landlord's Work. Tenant and its employees, invitees, agents and
contractors may use the Premises during the performance of Landlord's Work at
their own risk, and Landlord shall not be responsible for injury or damage to
property or persons occasioned by the performance of Landlord's Work. Landlord
shall use reasonable efforts to minimize interference with the operation of
Tenant's business in the Premises while performing Landlord's Work. Landlord
further agrees that it shall not suspend electric service in the Premises in
connection with its performance of Landlord's Work during Work Hours (as
hereinafter defined). For purposes of this Paragraph, the term "Work Hours"
shall mean the period from 8:00 a.m. to 7:00 p.m. on Monday through Friday,
excluding legal holidays. Landlord shall provide Tenant with not less than
seventy two (72) hours notice prior to suspending the electric services for such
purposes. Landlord shall also provide Tenant with use of a temporary generator
when so suspending electric services to enable Tenant to continue to operate its
computer system in the Premises during such times.
5. FIXED RENT; SECURITY DEPOSIT.
(a) Tenant shall pay to Landlord without notice or demand, and without
set-off, the annual Fixed Rent payable in the monthly installments of Fixed Rent
as set forth in Article 1(e), in advance on the first day of each calendar month
during the Term by wire transfer of immediately available funds to the account
at First Union National Bank, account no. 2030000359075; such transfer to be
confirmed to Brandywine Realty Services Corporation's accounting department
(▇▇▇-▇▇▇-▇▇▇▇ - fax) by written facsimile with ABA routing number ▇▇▇▇▇▇▇▇▇.
Notwithstanding the immediately preceding sentence, the first month's
installment shall be paid and the letter of credit required under subparagraph
(c) of this Article 5 shall be delivered by Tenant to Landlord upon the
execution of this Lease by Tenant.
(b) In the event any Fixed Rent or Additional Rent, charge, fee or other
amount due from Tenant under the terms of this Lease are not paid to Landlord
within five (5) days of the date due, Tenant shall also pay as Additional Rent a
service and handling charge equal to three (3%) percent of the total payment
then due. The aforesaid charge shall begin to accrue on the initial date of a
payment due date, irrespective of any grace period granted hereunder. This
provision shall not prevent Landlord from exercising any other remedy herein
provided or otherwise available at law or in equity in the event of any default
by Tenant. Notwithstanding anything contained herein to the contrary, the
above-referenced service and handling charge shall not apply until the second
late payment of Fixed Rent or Additional Rent due hereunder during any
consecutive twelve (12) month period.
(c) Simultaneously with the execution of this Lease by Tenant and
delivery of same to Landlord for Landlord's execution, Tenant shall deliver to
Landlord an unconditional, irrevocable, standby letter of credit (in accordance
with the requirements set forth below) in the amount of $750,000.00 as security
for the full and faithful performance and observance by Tenant of all of the
terms, conditions, covenants and agreements of this Lease. Provided Tenant has
not defaulted at any time in any of its obligations under this Lease, the amount
under the letter of credit shall reduce in accordance with the following
schedule: (i) to $675,000 as of the first day of the thirteenth month of the
term hereof; (ii) to $600,000 as of the first day of the twenty-fifth month of
the term hereof; (iii) to $525,000 as of the first day of the thirty-seventh
month of the term hereof; (iv) to $450,000 as of the first day of the
forty-ninth month of the term hereof; (v) to $375,000 as of the first day of the
sixty-first month of the term hereof; (vi) to $300,000 as of the first day of
the seventy-third month of the term hereof; (vii) to $225,000 as of the first
day of the eighty-fifth month of the term hereof; (viii) to $150,000 as of the
first day of the ninety-seventh month of the term hereof; and (ix) to $75,000 as
of the first day of the one hundred and ninth month of the term hereof.
In the event Tenant defaults in payment of Rent or other sums due from
Tenant to Landlord under this Lease, or in performance or observance of any
other term, covenant, condition or agreement of this Lease, after the expiration
of applicable notice periods provided herein for the cure thereof, Landlord may
notify the "Issuing Bank" (hereinafter defined) and thereupon draw on the letter
of credit, in whole or part, from time to time, at Landlord's election, and use,
apply or retain the whole or any part of such proceeds to the extent required
for the payment of any sums as to which Tenant is in default (including, without
limitation, any damages or deficiency accrued before or after summary
proceedings or other re-entry by Landlord) or for coverage or reimbursement of
any sums which Landlord may expend or may be required to expend by reason of
such default by Tenant. In the event Landlord so uses, applies or retains all or
any portion of such monies represented by the letter of credit, Tenant shall
forthwith restore the security to the level set forth in Paragraph 5(c) above to
the amount required for the year of restoration upon delivery of written notice
by Landlord detailing such use, application or retention, through delivery of
cash or a certified or bank check payable to Landlord or through delivery of an
amendment or replacement letter of credit to Landlord. In the event Landlord
shall not apply all of the proceeds of such letter of credit to cover Tenant's
default as permitted hereunder, Landlord shall hold the unapplied portion of
such proceeds (and the restoration amount required pursuant to the preceding
sentence) as a security deposit under this Lease, and thereafter apply such
funds as permitted under this subparagraph. In the event that Tenant shall fully
and faithfully comply with all of the terms, provisions, covenants and
conditions of this Lease, the letter of credit or security deposit then being
held by Landlord, whichever may be the case, shall be returned to Tenant within
thirty (30) days after the Expiration Date and after delivery by Tenant of
entire possession of the Premises to Landlord in strict accordance with the
terms of this lease.
The unconditional, irrevocable, standby letter of credit to be delivered
by Tenant pursuant to this Article shall be in form and content satisfactory to
Landlord and shall conform to each the following requirements:
(i) such letter of credit may only be issued by a member of the New
York Clearing House Association (or a commercial bank or trust company
satisfactory to Landlord having a net worth of at least $750,000,000.00) which
has banking offices in New York City or Long Island at which the letter of
credit may be drawn upon (the "Issuing Bank");
(ii) such letter of credit shall indicate the address of the Issuing
Bank in New York City or Long Island where it can be drawn upon;
(iii) such letter of credit shall name Landlord as beneficiary under
the letter of credit with its address c/o Brandywine Realty Trust, ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate
Controller.
(iv) such letter of credit must be payable to Landlord or an
authorized representative of Landlord upon presentation of only the letter of
credit and a sight draft, and shall not contain as a condition to a draw the
requirement of Landlord's certification or other statement as to the existence
of Tenant's default;
(v) Tenant must replace said letter of credit with a new letter of
credit satisfying the requirements of this Article at least thirty (30) days
prior to the termination of the existing letter of credit. Failure by Tenant to
replace the existing letter of credit as required herein shall constitute a
default under this lease and there shall be no notice or opportunity to cure
said default. Thereupon, Landlord shall be permitted to draw upon the existing
letter of credit up to the full amount thereof;
(vi) such letter of credit shall be transferable multiple times by
Landlord without the consent of Tenant; and
(vii) such letter of credit shall be subject to the International
Standby Practices 1998, International Chamber of Commerce Publication No. 590.
Tenant acknowledges and agrees that Landlord shall have no
responsibility or liability on account of any error by the Issuing Bank.
In the event of a sale or lease of all or a portion of the Building by
Landlord, Landlord shall have the right to transfer its rights under the letter
of credit (or security deposit, as applicable) to the vendee or lessee and
Landlord shall thereupon be released by Tenant from all liability in connection
with such letter of credit (or security deposit, as applicable) from and after
the date of such transfer; Tenant agrees to look solely to the new landlord with
respect to the return of, or any dispute arising in connection with, such letter
of credit (or security deposit) from and after the date of such transfer; and
the provisions hereof shall apply to every transfer or assignment made of such
rights to a new landlord. Landlord shall pay , all costs and fees charged by the
Issuing Bank in connection with the letter of credit that arise due to (i)
Landlord's transfer of its rights under the letter of credit in connection with
the sale or lease of all or a portion of the Building, or (ii) the addition,
deletion or modification of any beneficiary under the letter of credit.
Tenant shall not assign or encumber or attempt to assign or encumber the
letter of credit (or security deposit). Any such assignment, encumbrance,
attempted assignment or attempted encumbrance by Tenant shall be deemed void and
of no force or effect, nor shall same be binding upon Landlord or its successors
or assigns.
Tenant shall cooperate, at its expense, with Landlord to promptly
execute and deliver to Landlord any and all modifications, amendments, and
replacements of the letter of credit to carry out the intent, terms and
conditions of this Article. Any other requests by Landlord for modifications,
amendments and replacements of the letter of credit shall be at Landlord's
expense.
The acceptance of the letter of credit or the exercise of any remedies
under this Article by Landlord shall not be a limitation on Landlord's damages,
remedies or other rights under this Lease, or construed as a payment of
liquidated damages or an advance payment of Rent or any Additional Rent.
6. ADDITIONAL RENT.
(a) Commencing as of the Commencement Date, and in each calendar year
thereafter during the Term (as same may be extended), Tenant shall pay to
Landlord, as additional rent, within thirty (30) days after Landlord certifies
to Tenant the amount thereof, the following charges ("Recognized Expenses"),
without deduction or set off, such charges to be based upon Tenant's Allocated
Share of such charges, as stated in Article 1(h) herein.
(1) Intentionally Deleted.
(2) Operating Expenses. All costs and expenses related to the
Project incurred and paid by Landlord during the Term, including, but not
limited to:
(a) All of the following costs and expenses related to the
operation of the Building and Project: lighting (including site lighting),
cleaning the Building exterior and common areas of the Building interior, trash
removal and recycling (to the extent Tenant does not directly contract with and
directly pay the carting company providing such services), repairs and
maintenance of the roof and storm water management system, fire suppression and
alarm systems, utilities benefitting the common areas, removing snow, ice and
debris and maintaining all landscape areas, (including replacing and replanting
flowers, shrubbery and trees), maintaining and repairing all other exterior
improvements on the Project, all repairs and compliance costs necessitated by
laws enacted or which become effective after the date hereof (including, without
limitation, any additional regulations or requirements enacted after the date
hereof regarding the Americans With Disabilities Act (as such applies to the
Project or common areas but not to any individual tenant's space), if
applicable) required of Landlord under applicable laws, rules and regulations
and policing and regulating traffic to and from the Project (except that, in the
case of such compliance costs, such costs shall be amortized on a straight line
basis over their useful lives as determined in accordance with the Internal
Revenue Code of 1986, as amended, and the regulations applicable thereto, and
the annualized installment, from the date of installation through the date of
repayment of said installment, shall be included in each year as an Operating
Expense). Landlord's obligation to provide snow removal services shall be
limited to the parking areas and the sidewalk entrances. Landlord hereby agrees
that the contracts its enters into for such snow removal services shall require
that such services be provided if there is at least two (2) inches of snow
accumulation.
(b) All costs and expenses incurred by Landlord for ordinary
compliance type environmental testing, sampling or monitoring required by
statute, regulation or order of governmental authority, necessary except any
costs or expenses incurred in conjunction with the spilling or depositing of any
hazardous substance for which any person or other tenant is legally liable.
(c) Any other expense or charge which would typically be
considered an expense of maintaining, operating or repairing the Project under
generally accepted accounting principles.
(d) Management fee not to exceed three (3%) percent of Fixed
Rent which is applicable to the overall operation of the Project. It is
expressly understood that legal fees incurred in an action against an individual
tenant shall not be deemed includable as an operating expense pursuant to this
provision.
(e) All premiums paid or payable by Landlord for the following
insurance with respect to the Project:
(i) Fire and extended coverage insurance (including
demolition and debris removal);
(ii) Insurance against Landlord's rental loss or
abatement (but not including business interruption
coverage on behalf of Tenant), from damage or
destruction from fire or other casualty;
(iii) Landlord's comprehensive liability insurance
(including bodily injury and property damage) and
boiler insurance; and
(iv) Such other insurance as Landlord or any reputable
mortgage lending institution holding a mortgage on
the Premises may require.
If any such insurance is provided by blanket coverage, the part of the
premium allocated to the Project shall be equitably determined by Landlord but
shall not exceed the amount of premium due if insurance was provided by a policy
only insuring the Project. Should Tenant's occupancy or use of the Premises at
any time change and thereby cause an increase in such insurance premiums on the
Premises, Building and/or Project, Tenant shall pay to Landlord the entire
amount of such increase. It is further agreed that should any other tenant's
occupancy at the Building at any time change and thereby cause an increase in
such insurance premiums on the Premises, Building and/or Project, such other
tenant shall pay to Landlord the entire amount of such increase and the same
shall not be deemed a Recognized Expense hereunder. If the coverage period of
any such insurance obtained by Landlord commences before or extends beyond the
Term, the premium therefore shall be prorated to the Term.
Notwithstanding the foregoing, the term "Recognized Expenses" shall not
include any of the following:
(a) Repairs or other work occasioned by fire, windstorm or
other insured casualty plus and "deductibles" or by the exercise of the right of
eminent domain;
(b) Leasing commissions, accountants', consultants', auditors
or attorneys' fees, costs and disbursements and other expenses incurred in
connection with negotiations or disputes with other tenants or prospective
tenants or other occupants, or associated with the enforcement of any other
leases or the defense of Landlord's title to or interest in the real property or
any part thereof;
(c) Costs (including permit, licenses and inspection fees)
incurred in renovating or otherwise improving or decorating, painting, or
redecorating the Building or space for other tenants or other occupants or
vacant space;
(d) Costs of any items or services sold or provided to tenants
(including Tenant) for which Landlord is reimbursed by such tenants;
(e) Depreciation and amortization;
(f) Costs incurred due to a breach by Landlord or any other
tenant of the terms and conditions of any lease;
(g) Overhead and profit increment paid to subsidiaries or
affiliates of Landlord for management or other services on or to the Building or
for supplies, utilities or other materials, to the extent that the costs of such
services, supplies, utilities or materials exceed the reasonable costs that
would have been paid had the services, supplies or materials been provided by
unaffiliated parties on a reasonable basis without taking into effect volume
discounts or rebates offered to Landlord as a portfolio purchaser;
(h) Interest on debt or amortization payments on any mortgage
or deeds of trust or any other borrowings and any ground rent;
(i) Ground rents or rentals payable by Landlord pursuant to
any over-lease;
(j) Any compensation paid to clerks, attendants, employees or
other persons in commercial concessions operated by Landlord at the Project;
(k) All items and services for which Tenant reimburses
Landlord or which Landlord provides selectively to one or more tenants or
occupants of the building (other than Tenant) without reimbursement;
(l) Costs incurred in managing or operating any "pay for"
parking facilities within the Project;
(m) Any capital expense relating only to the repair and/or
replacement of the roof and the repair and/or replacement of those items noted
in Article 14(b) of this Lease.
(n) Any fines or fees for Landlord's failure to comply with
governmental, quasi-governmental, or regulatory agencies' rules and regulations;
(o) Legal, accounting and other expenses related to Landlord's
financing, re-financing, mortgaging or selling the Building or the Project;
(p) Any advertising expense associated with rental or
marketing of the Project; and
(q) Repairs or other work occasioned by the negligence of
Landlord or its agents.
(3) Taxes. Taxes shall be defined as all taxes, assessments and
other governmental charges ("Taxes"), including special assessments for public
improvements or traffic districts which are levied or assessed against the
Project during the Term or, if levied or assessed prior to the Term, which
properly are allocable to the Term, and real estate tax appeal expenditures
incurred by Landlord to the extent of any reduction resulting thereby.
Nothing herein contained shall be construed to include as Taxes:
(A) any inheritance, estate, succession, transfer, gift, franchise, corporation,
net income or profit tax or capital levy that is or may be imposed upon
Landlord; or (B) any Taxes resulting from a transfer of the Building or the
Project; or (C) penalties or interest accrued due to Landlord's failure to pay
the Taxes on the due date (provided such failure does not occur as a result of
Tenant's failure to timely pay Taxes as and in the manner required hereunder);
provided, however, that if at any time during the Term the method of taxation
prevailing at the commencement of the Term shall be altered so that in lieu of
or as a substitute for the whole or any part of the taxes now levied, assessed
or imposed on real estate as such there shall be levied, assessed or imposed (i)
a tax on the rents received from such real estate, or (ii) a license fee
measured by the rents receivable by Landlord from the Premises or any portion
thereof, or (iii) a tax or license fee imposed upon Premises or any portion
thereof, then the same shall be included in the computation of Taxes hereunder.
If Landlord shall receive a refund of Taxes for any Tax Year of the
Term, Landlord shall pay to Tenant, Tenant's Allocated Share of any refund (to
the extent Tenant has actually paid Taxes for such Tax Year), net of any costs
and expenses associated with obtaining the refund, to the extent that such costs
or expenses were not included in the Taxes for such Tax Year. This provision
shall survive the termination of the lease for a period of four (4) years
(provided such termination is not a result of Tenant's default hereunder).
(4) Commencing as of the Commencement Date, Tenant shall pay, in
monthly installments in advance, on account of Tenant's Allocated Share of
Recognized Expenses and Taxes, the estimated amount of such Recognized Expenses
and Taxes for such year as determined by Landlord in its reasonable discretion
and as set forth in a notice, such notice to include the basis for such
calculation, to be provided to Tenant prior to such date. Prior to the end of
that year and thereafter for each successive calendar year (each, a "Lease
Year"), or part thereof, Landlord shall send to Tenant a statement of projected
Recognized Expenses and Taxes and shall indicate what Tenant's projected share
of Recognized Expenses and Taxes shall be. Said amount shall be paid in equal
monthly installments in advance by Tenant as Additional Rent commencing January
1 of the applicable Lease Year.
(5) If during the course of any Lease Year, Landlord shall have
reason to believe that the Recognized Expenses and Taxes shall be different than
that upon which the aforesaid projections were originally based, then Landlord
shall adjust the amount by reallocating the remaining payments for such year,
for the months of the Lease Year which remain for the revised projections, and
to advise Tenant of an adjustment in future monthly amounts to the end result
that the Recognized Expenses and Taxes shall be collected on a reasonably
current basis each Lease Year.
(6) Within four (4) months following the end of each Lease Year or
as soon thereafter as administratively available, Landlord shall send to Tenant
a statement of actual expenses incurred for Recognized Expenses and Taxes for
the prior Lease Year showing the Allocated Share due from Tenant. Landlord shall
use its reasonable efforts to provide Tenant with the aforesaid statements on or
before April 30 of each Lease Year; provided, however, if Landlord is unable to
provide such statements by April 30, Landlord shall not have been deemed to
waive its right to collect any such amounts as Additional Rent. If Landlord is
unable to provide final statements on or before April 30 of each Lease Year,
Landlord shall provide Tenant with its unaudited internal estimates of such
costs by April 30, with the caveat that the final statements may deviate from
the estimate provided. In the event the amount prepaid by Tenant exceeds the
amount that was actually due then Landlord shall issue a credit to Tenant in an
amount equal to the over charge, which credit Tenant may apply to future
payments on account of Recognized Expenses and Taxes until Tenant has been fully
credited with the over charge. If the credit due to Tenant is more than the
aggregate total of future rental payments, Landlord shall pay to Tenant the
difference between the credit in such aggregate total. In the event Landlord has
undercharged Tenant then Landlord shall send Tenant an invoice with the
additional amount due, which amount shall be paid in full by Tenant within
twenty (20) days of receipt.
(7) Each of the Recognized Expense and Tax amounts, whether
requiring lump sum payment or constituting projected monthly amounts added to
the Fixed Rent, shall for all purposes be treated and considered as Additional
Rent and the failure of Tenant to pay the same as and when due in advance and
without demand shall have the same effect as failure to pay any installment of
the Fixed Rent and shall afford Landlord all the remedies in the Lease therefor
as well as at law or in equity.
(8) If any Recognized Expenses cover a period which commences
before or extends beyond the Term, the payment therefore shall be prorated for
the Term. If this Lease terminates other than at the end of a calendar year,
Landlord's annual estimate of Recognized Expenses and Taxes shall be accepted by
the parties as the actual Recognized Expenses and Taxes for the year the Lease
ends until Landlord provides Tenant with actual statements in accordance with
subsection 6(e) above. The obligation of Landlord to provide Tenant with such
actual statements shall survive the expiration of this Lease.
(9) Tenant shall have the right, at its sole cost and expense, to
audit or have its appointed accountant audit Landlord's records related to
Recognized Expenses provided that any such audit may not occur more frequently
than once each calendar year nor apply to any year prior to the then current
calendar year. In the event Tenant's audit discloses any discrepancy, Landlord
and Tenant shall use their best efforts to resolve the dispute and make an
appropriate adjustment, failing which, they shall submit any such dispute to
arbitration pursuant to the rules and under the jurisdiction of the American
Arbitration Association in New York. The decision rendered in such arbitration
shall be final, binding and non-appealable. The expenses of arbitration, other
than individual legal and accounting expenses which shall be the respective
parties' responsibility, shall be divided equally between the parties. Tenant
agrees not to utilize a contingent fee auditor.
7. ELECTRICITY AND GAS CHARGES.
(a) Landlord shall provide Tenant with a direct electric and gas meter
and account to the public utilities servicing the Premises for electric and gas
service, and Tenant shall pay all charges directly to such utility. Tenant shall
also pay Landlord, as Additional Rent, within fifteen (15) days of receipt of
Landlord's billing statement therefor, Tenant's Allocated Share of all charges
incurred by Landlord, or its agent, for electricity provided to the common areas
of the Project. Tenant may select alternate electric and gas providers, with
Landlord's prior written consent (not to be unreasonably withheld), provided the
use of such alternate providers does not affect other tenants at the Project and
the services then being provided to the Project. Landlord shall cooperate with
Tenant, at no charge, to enable Tenant to obtain such utility services as
requested by Tenant.
(b) It is understood and agreed that the installation of such direct
meters for the Premises shall not occur until after the Commencement Date. If is
therefore agreed by the parties that, prior to the earlier to occur of (i) the
installation of the direct meters, or (ii) a tenant taking occupancy of the
portion of the Building not being leased by Tenant, Tenant shall pay to
Landlord, as Additional Rent, within fifteen (15) days of receipt of Landlord's
billing statement therefor, seventy-five (75%) percent of all charges incurred
by Landlord for all electricity and gas services provided at the Building.
8. SIGNS; USE OF PREMISES AND COMMON AREAS.
(a) Landlord shall provide Tenant with standard identification signage
on all Building directories and at the entrance to the Premises. No other signs
shall be placed, erected or maintained by Tenant at any place upon the Premises,
Building or Project, without Landlord's prior written approval. It is further
understood and agreed that: (i) Tenant's right to place, erect or maintain any
other signs at the Project shall be subject and subordinate to Landlord's right
to place, erect or maintain the same at the Project; (ii) all such signage shall
conform to all legal requirements; (iii) Tenant shall be solely responsible for
any and all costs and expenses of manufacturing, erecting and removing any such
sign or signs; and (iv) Landlord shall be permitted to provide other tenants at
the Project with space on any monument sign (including the currently existing
monument sign) and on any Building signage (including any currently existing
Building signage) at the Project and that each tenant (including Tenant) shall
each be entitled to their allocated share of space on such monument sign and any
such Building signage. It is agreed that Tenant shall have no less signage than
as currently exists at the Project, subject to the provisions of subparagraph
(iv) hereof, and that Tenant shall be provided with the top space on any
monument sign which it shares with any other tenants at the Project.
(b) Tenant may use and occupy the Premises only for the express and
limited purposes stated in Article 1(j) above; and the Premises shall not be
used or occupied, in whole or in part, for any other purpose without the prior
written consent of Landlord; provided that Tenant's right to so use and occupy
the Premises shall remain expressly subject to the provisions of "Governmental
Regulations", Article 29 herein. No machinery or equipment shall be permitted
that shall cause vibration, noise or disturbance beyond the Premises. Tenant,
without Landlord's consent or direction, shall not, at any time prior to the
fourth year of the Term, "vacate" the Premises nor permit the Premises to remain
unoccupied. "Vacate" shall be defined as the removal of substantially all of the
firm's client files or all of its furniture and equipment and personal property
from the Premises.
(c) Tenant shall not overload any floor or part thereof in the Premises
or the Building, including any public corridors or elevators therein, bringing
in, placing, storing, installing or removing any large or heavy articles, . At
Tenant's sole cost and expense, supplementary supports of such material and
dimensions as Landlord may deem necessary to properly distribute the weight of
safes and heavy articles or machinery may be required.
(d) Tenant shall not install in or for the Premises, without Landlord's
prior written approval, any equipment which requires more electric current than
Landlord is required to provide under this Lease.
(e) Tenant shall not commit or suffer any waste upon the Premises,
Building or Project or any nuisance, or any other act or thing which may disturb
the quiet enjoyment of any other tenant in the Building or Project.
(f) Tenant shall have the right, non-exclusive and in common with
others, to use the exterior paved driveways and walkways of the Building for
vehicular and pedestrian access to the Building. Tenant shall also have the
right, in common with other tenants of the Building and Landlord, to use the
designated parking areas of the Project for the parking of automobiles of Tenant
and its employees and business visitors, incident to Tenant's permitted use of
the Premises; provided that Landlord shall have the right to restrict or limit
Tenant's utilization of the parking areas in the event the same become
overburdened and in such case to equitably allocate on proportionate basis or
assign parking spaces among Tenant and the other tenants of the Building.
Landlord shall have the right to establish reasonable regulations, applicable to
all tenants, governing the use of or access to any interior or exterior common
areas; and such regulations, when communicated by written notification from
Landlord to Tenant, shall be deemed incorporated by reference hereinafter and
part of this Lease. Notwithstanding anything to the contrary contained herein,
Landlord shall provide Tenant with the exclusive right to use one hundred and
twenty (120) parking spaces at the Project as shown on Exhibit "D" annexed
hereto. Sixteen (16 ) of the parking spaces shall be marked "reserved" for
Tenant's exclusive use and shall also be shown on said Exhibit "D". At Tenant's
request, Landlord shall designate additional reserved parking spaces or parking
areas at the Project for Tenant's exclusive use.
9. ENVIRONMENTAL MATTERS.
(a) Hazardous Substances.
(i) Tenant shall not, except as provided in subparagraph (ii) below,
bring or otherwise cause to be brought or permit any of its agents, employees,
contractors or invitees to bring in, on or about any part of the Premises,
Building or Project, any hazardous substance or hazardous waste in violation of
law, as such terms are or may be defined in (x) the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. 9601 et seq., as the same
may from time to time be amended, and the regulations promulgated pursuant
thereto ("CERCLA"); the United States Department of Transportation Hazardous
Materials Table (49 CFR 172.102); by the Environmental Protection Agency as
hazardous substances (40 CFR Part 302); the Clean Air Act; and the Clean Water
Act, and all amendments, modifications or supplements thereto; and/or (y) any
other rule, regulation, ordinance, statute or requirements of any governmental
or administrative agency regarding the environment (collectively, (x) and (y)
shall be referred to as an "Applicable Environmental Law").
(ii) Tenant may bring to and use at the Premises, hazardous
substances, supplies or other items, incidental to its normal business
operations under the NAI Code referenced in paragraph 1(m) above in de minimis
quantities in accordance with all laws. Tenant shall store and handle such
substances in strict accordance with all environmental laws.
(iii) Landlord covenants that it shall require all other tenants of
the Project to comply with substantially the same terms as set forth in Articles
9(a)(i) and 9(a)(ii) above. Any lease entered into between Landlord and other
tenants of the Project shall contain substantially the same paragraphs
enumerated above.
(b) NAI Numbers.
(i) Tenant represents and warrants that Tenant's NAI (North American
Industry Classification) number as designated in the Standard Classification
Manual prepared by the Office of Management and Budget, and as set forth in
Article 1(m) hereof, is correct. Tenant represents that the specific activities
intended to be carried on in the Premises are in accordance with Article 1(j).
(ii) Tenant shall not engage in operations at the Premises which
involve the generation, manufacture, refining, transportation, treatment,
storage, handling or disposal of "hazardous substances" or "hazardous waste" as
such terms are defined under any Applicable Environmental Law. Tenant further
covenants that it will not cause or permit to exist any "discharge" (as such
term is defined under Applicable Environmental Laws) on or about the Premises.
(iii) Tenant shall, at its expense, comply with all requirements of
Applicable Environmental Laws pertaining thereto.
(iv) In addition, upon written request of Landlord, Tenant shall
cooperate with Landlord in obtaining Applicable Environmental Laws approval of
any transfer of the Building of which the Premises form a part. Specifically in
that regard, Tenant agrees that it shall (1) execute and deliver all affidavits,
reports, responses to questions, applications or other filings required by
Landlord and related to Tenant's activities at the Premises, (2) allow
inspections and testing of the Premises, and (3) as respects the Premises
occupied by Tenant, perform any requirement reasonably requested by Landlord
necessary for the receipt of Applicable Environmental Laws approval, provided
the foregoing shall be at no out-of-pocket cost or expense to Tenant except for
clean-up and remediation costs arising from Tenant's activities at the Premises.
(c) Additional Terms.
(i) In the event of Tenant's failure to comply in full with this
Article, Landlord may, after written notice to Tenant and Tenant's failure to
cure within thirty (30) days of its receipt of such notice, at Landlord's
option, perform any and all of Tenant's obligations as aforesaid and all costs
and expenses incurred by Landlord in the exercise of this right shall be deemed
to be Additional Rent payable on demand and with interest at the Default Rate
until payment at the rate provided in this Lease.
(ii) The parties acknowledge and agree that Tenant shall be
responsible for any environmental issue at the Premises caused by an action or
omission of Tenant or its agents, employees, consultants or invitees subsequent
to the Commencement Date, it being understood and agreed that with respect to
any environmental issues that occurred prior to the Commencement Date, the
provisions of Paragraphs 21(c) and 43(b) of the Contract of Sale shall apply.
(iii) This Article 9 shall survive the expiration or sooner
termination of this Lease.
10. TENANT'S ALTERATIONS. Tenant will not cut or drill into or secure any
fixture, apparatus or equipment or make alterations, improvements or physical
additions (collectively, "Alterations") of any kind to any part of the Premises
without first obtaining the written consent of Landlord, such consent not to be
unreasonably withheld, or unduly delayed. Landlord's consent shall not be
required for the installation of any office equipment or fixtures including
internal partitions which do not require disturbance of any structural elements
or systems (other than attachment thereto) within the Building. Landlord's
consent shall also not be required for any Minor Alterations (as hereinafter
defined). For purposes of this lease, the term "Minor Alterations" shall mean
any Alteration which: (i) is non-structural in nature; (ii) shall not affect the
usage or proper functioning of any of the Building systems (including, without
limitation, the heating, ventilation, air conditioning, plumbing, electrical,
health safety, sprinkler or security systems; and (iii) shall have a cost of
completion which is less than $50,000.00. Tenant shall otherwise comply with all
other provisions of this Article 10 with respect to all Minor Alterations. If
Landlord approves Tenant's Alterations and agrees to permit Tenant's contractors
to do the work, Tenant, prior to the commencement of labor or supply of any
materials (including those relating to Minor Alterations), must furnish to
Landlord (i) a duplicate or original policy or certificates of insurance
evidencing (a) general public liability insurance for personal injury and
property damage in the minimum amount of $1,000,000.00 combined single limit,
(b) statutory ▇▇▇▇▇▇▇'▇ compensation insurance, and (c) employer's liability
insurance from each contractor to be employed (all such policies shall be
non-cancelable without thirty (30) days prior written notice to Landlord and
shall be in amounts and with companies satisfactory to Landlord); (ii)
construction documents prepared and sealed by a registered New York architect if
such alteration is in excess of $50,000.00; and (iii) all applicable building
permits required by law. Any consent by Landlord permitting Tenant to do any or
cause any work to be done in or about the Premises shall be and hereby is
conditioned upon Tenant's work being performed by workmen and mechanics working
in harmony and not interfering with labor employed by Landlord, Landlord's
mechanics or their contractors or by any other tenant or their contractors. If
at any time any of the workmen or mechanics performing any of Tenant's work
shall be unable to work in harmony or shall interfere with any labor employed by
Landlord, other tenants or their respective mechanics and contractors, then the
permission granted by Landlord to Tenant permitting Tenant to do or cause any
work to be done in or about the Premises, may be withdrawn by Landlord upon
forty-eight (48) hours written notice to Tenant.
All Alterations (whether temporary or permanent in character) made in or
upon the Premises (other than Landlord's Work which will remain on the
Premises), either by Landlord or Tenant, shall be Landlord's property upon
installation and shall remain on the Premises without compensation to Tenant.
All furniture, movable trade fixtures and equipment and any Minor Alterations
installed by Tenant may be removed by Tenant at the termination of this Lease,
or if not so removed shall, at the option of Landlord, become the property of
Landlord. All such installations, removals and restoration shall be accomplished
in a good and workmanlike manner so as not to damage the Premises or Building
and in such manner so as not to disturb other tenants in the Building. If Tenant
fails to remove any items required to be removed pursuant to this Article,
Landlord may do so and the costs and expenses thereof shall be deemed Additional
Rent hereunder and shall be reimbursed by Tenant to Landlord within fifteen (15)
business days of Tenant's receipt of an invoice therefor from Landlord. Tenant
shall not be responsible for reimbursing Landlord for the cost Landlord incurs
in removing any Minor Alterations which remain at the Premises at the end of the
term hereof.
11. CONSTRUCTION LIENS.
(a) Tenant will not voluntarily suffer or permit any mechanic's,
contractor's, subcontractor's or supplier's lien (a "Construction Lien") to be
filed against the Premises or any part thereof by reason of work, labor services
or materials supplied or claimed to have been supplied to Tenant; and if any
Construction Lien shall at any time be filed against the Premises or any part
thereof, Tenant, within thirty (30) days after notice of the filing thereof,
shall cause it to be discharged of record by payment, deposit, bond, order of a
court of competent jurisdiction or otherwise. If Tenant shall fail to cause such
Construction Lien to be discharged within the period aforesaid, then in addition
to any other right or remedy, Landlord may, but shall not be obligated to,
discharge it either by paying the amount claimed to be due or by procuring the
discharge of such lien by deposit or by bonding proceedings. Any amount so paid
by Landlord, plus all of Landlord's costs and expenses associated therewith
(including, without limitation, reasonable legal fees), shall constitute
Additional Rent payable by Tenant under this Lease and shall be paid by Tenant
to Landlord on demand with interest from the date of advance by Landlord at the
Default Rate.
(b) Nothing in this Lease, or in any consent to the making of
alterations or improvements shall be deemed or construed in any way as
constituting authorization by Landlord for the making of any alterations or
additions by Tenant, or constituting a request by Landlord, express or implied,
to any contractor, subcontractor or supplier for the performance of any labor or
the furnishing of any materials for the use or benefit of Landlord.
12. ASSIGNMENT AND SUBLETTING.
(a) Subject to the remaining subsections of Article 12, except as
expressly permitted pursuant to this section, Tenant shall not, without the
prior written consent of Landlord, such consent shall not be unreasonably
withheld or unduly delayed, assign or hypothecate this Lease or any interest
herein or sublet the Premises or any part thereof. Any of the foregoing acts
without such consent shall be void. Except as otherwise specifically set forth
herein, this Lease shall not, nor shall any interest herein, be assignable as to
the interest of Tenant by operation of law or by merger, consolidation or asset
sale, without the written consent of Landlord, which shall not be unreasonably
withheld or unduly delayed. Notwithstanding anything contained herein, Tenant
may permit any corporation or other business entity which controls, is
controlled by or is under common control with Tenant ("Affiliate") to sublet all
or any part of the Premises, and may assign this Lease, in whole or in part, to
an Affiliate (in either case, an "Affiliate Assignment or Sublease"), upon prior
written notice to Landlord. Tenant is a publicly traded corporation, and no
transfer of shares of Tenant shall require consent of Landlord nor be deemed a
violation of this Lease.
(b) If at any time or from time to time during the term of this Lease
Tenant desires to assign this Lease or sublet all or any part of the Premises
for which Landlord's consent is required hereunder, Tenant shall give notice to
Landlord of such desire, including the name, address and contact party for the
proposed assignee or subtenant, a description of such party's business history,
the effective date of the proposed assignment or sublease (including the
proposed occupancy date by the proposed assignee or sublessee), and in the
instance of a proposed sublease, the square footage to be subleased, a floor
plan professionally drawn to scale, depicting the proposed sublease area, and a
statement of the duration of the proposed sublease (which shall in any and all
events expire by its terms prior to the scheduled expiration of this Lease, and
immediately upon the sooner termination hereof). Landlord may, at its option,
and in its sole and absolute discretion, exercisable by notice given to Tenant
within sixty (60) days next following Landlord's receipt of Tenant's notice
(which notice from Tenant shall, as a condition of its effectiveness, include
all of the above-enumerated information), elect to recapture the Premises or
such portion as is proposed by Tenant to be sublet (and in each case, the
designated and non-designated parking spaces included in this demise, or a
pro-rata portion thereof in the instance of the recapture of less than all of
the Premises), and terminate this Lease in the instance of a proposed
assignment, or recapture that portion of the Premises proposed to be sublet (and
a pro-rata portion of designated and non-designated parking spaces, as
aforesaid) and terminate the Lease with respect thereto, in the instance of a
proposed sublease. It is further agreed that the foregoing recapture right shall
only apply in connection with an assignment of this Lease and any Major Sublease
(as hereinafter defined) and shall not apply in the case of any Affiliate
Assignment or Sublease. The term "Major Sublease", as used herein, shall mean
any proposed sublease which, when considered together with all other subleases
that will be in effect on the commencement of such proposed sublease : (i)
covers more than seventy five percent (75%) of the rentable area of the Premises
and extends for any part of the Term of this Lease or (ii) covers more than
fifty percent (50%) of the rentable area of the Premises and extends for more
than fifty percent (50%) of the then remaining term of this Lease.
(c) If Landlord elects to recapture the Premises or a portion thereof
as aforesaid, then from and after the effective date thereof as approved by
Landlord, after Tenant shall have fully performed such obligations as are
enumerated herein to be performed by Tenant in connection with such recapture,
and except as to obligations and liabilities accrued and unperformed (and any
other obligations expressly stated in this Lease to survive the expiration or
sooner termination of this Lease), Tenant shall be released of and from all
lease obligations thereafter otherwise accruing with respect to the Premises (or
such lesser portion as shall have been recaptured by Landlord). The Premises, or
such portion thereof as Landlord shall have elected to recapture, shall be
delivered by Tenant to Landlord free and clear of all furniture, furnishings,
personal property and trade fixtures, with Tenant repairing and restoring any
and all damage to the Premises resulting from the installation, handling or
removal thereof, and otherwise in the same condition as Tenant is, by the terms
of this Lease, required to redeliver the Premises to Landlord upon the
expiration or sooner termination of this Lease. Upon the completion of any
recapture and termination as provided herein, Tenant's remaining Fixed Rent,
Recognized Expense and remaining monetary obligations of Tenant, including the
amount of the letter of credit held by Landlord under Article 5(c) hereof, shall
be reduced pro-rated based upon the reduced rentable square footage then
comprising the Premises.
(d) If Landlord provides written notification to Tenant electing not to
recapture the Premises (or so much thereof as Tenant had proposed to sublease),
then Tenant may proceed to market the designated space and may complete such
transaction and execute an assignment of this Lease or a sublease agreement (in
each case in form reasonably acceptable to Landlord) within a period of nine (9)
months next following Landlord's notice to Tenant that it declines to recapture
such space, provided that Tenant shall have first obtained in any such case the
prior written consent of Landlord to such transaction, which consent shall not
be unreasonably withheld. If, however, Tenant shall not have assigned this Lease
or sublet the Premises with Landlord's prior written consent as aforesaid within
nine (9) months next following Landlord's notice to Tenant that Landlord
declines to recapture the Premises (or such portion thereof as Tenant initially
sought to sublease), then in such event, Tenant shall again be required to
request Landlord's consent to the proposed transaction, whereupon Landlord's
right to recapture the Premises (or such portion as Tenant shall desire to
sublease) shall be renewed upon the same terms and as otherwise provided in
subsection (b) above.
For purposes of this Section 12(d), the parties agree that it shall
not be unreasonable for Landlord to withhold its consent to such assignment or
sublease, as the case may be, if: (i) the proposed assignee shall have a net
worth less than the net worth of Tenant at the time Tenant executes this Lease,
or which is otherwise not acceptable to Landlord in Landlord's reasonable
discretion; (ii) the proposed assignee or sublessee shall have no reliable
credit history or an unfavorable credit history, or other reasonable evidence
exists that the proposed assignee or sublessee will experience difficulty in
satisfying its financial or other obligations under this Lease; (iii) the
proposed assignee of sublessee, in Landlord's reasonable opinion, is not
reputable and of good character; (iv) Tenant is proposing a sublease at a rental
or subrental rate which is less than the then fair market rental rate for the
portion of the Premises being subleased or assigned to an existing tenant of the
Building or another prospect with whom Landlord is negotiating with for space at
the Building ; (v) the proposed assignee or sublessee will cause Landlord's
existing parking facilities to be reasonably inadequate, or in violation of code
requirements, or require Landlord to increase the parking area or the number of
parking spaces in excess of those furnished to Tenant pursuant to this Lease, or
(vi) the nature of such party's proposed business operation would or might
reasonably permit or require the use of the Premises in a manner inconsistent
with the "Permitted Use " specified herein, would or might reasonably otherwise
be in conflict with express provisions of this Lease.
(e) Any sums or other economic consideration received by Tenant as a
result of any subletting, assignment or license (except rental or other payments
received which are attributable to the amortization of the cost of (i) the
initial leasehold improvements made at the commencement of the term hereof to
the sublet or assigned portion of the Premises by or on behalf of Tenant and
(ii) the leasehold improvements made to the sublet or assigned portion of the
Premises by Tenant for subtenant or assignee, and other reasonable expenses
incident to the subletting or assignment, including standard leasing
commissions) whether denominated rentals under the sublease or otherwise, which
exceed, in the aggregate, the total sums which Tenant is obligated to pay
Landlord under this Lease (prorated to reflect obligations allocable to that
portion of the premises subject to such sublease or assignment) shall be divided
evenly between Landlord and Tenant, with Landlord's portion being payable to
Landlord as Additional Rent under this Lease without affecting or reducing any
other obligation of Tenant hereunder.
(f) Regardless of Landlord's consent, no subletting or assignment shall
release Tenant of Tenant's obligation or alter the primary liability of Tenant
to pay the Rent and to perform all other obligations to be performed by Tenant
hereunder. The acceptance of rental by Landlord from any other person shall not
be deemed to be a waiver by Landlord of any provision hereof. Consent to one
assignment or subletting shall not be deemed consent to any subsequent
assignment or subletting. In the event of default by any assignee of Tenant or
any successor of Tenant in the performance of any of the terms hereof, Landlord
may proceed directly against Tenant without the necessity of exhausting remedies
against such assignee or successor.
(g) In the event that (i) the Premises or any part thereof are sublet
and Tenant is in default under this Lease, or (ii) this Lease is assigned by
Tenant, then, Landlord may collect Rent from the assignee or subtenant and apply
the net amount collected to the rent herein reserved; but no such collection
shall be deemed a waiver of the provisions of this Article 12 with respect to
assignment and subletting, or the acceptance of such assignee or subtenant as
Tenant hereunder, or a release of Tenant from further performance of the
covenants herein contained.
(h) In connection with each proposed assignment or subletting of the
Premises by Tenant, Tenant shall pay to Landlord (i) an administrative fee of
$250 per request in order to defer Landlord's administrative expenses arising
from such request, plus (ii) Landlord's reasonable attorneys' fees not to exceed
$1,000.00.
(i) Notwithstanding anything to the contrary contained herein,
regardless of whether Landlord shall consent thereto (or whether such
transaction shall otherwise be permitted hereunder upon notice to, but without
the consent of Landlord), no assignment of this Lease and no subletting of the
Premises or any portion thereof shall release Tenant of Tenant's obligations
hereunder, or alter the primary liability of Tenant to pay the Rent and to
perform any and all other obligations to be performed by the holder of the
tenant interest hereunder, and it shall be an express condition of any
assignment or sublease that a fully-executed, original counterpart of the
assignment or sublease agreement, in form specified by or otherwise acceptable
to Landlord, shall be furnished to Landlord prior to the effective date thereof.
Any assignment document shall, among its terms, contain an express agreement by
the assignee to assume and be bound by all of the obligations to be performed
and discharged by the holder of the tenant interest hereunder, and shall include
an affirmation by the assignor of its continuing primary liability hereunder
notwithstanding such assignment. Any sublease document shall, among its terms,
be expressly subject and subordinate in all respects to this Lease, and the
shall contain an affirmation by the sublessor of its continuing primary
liability hereunder notwithstanding such sublease. The acceptance of rental by
Landlord from any other person shall not be deemed to be a waiver by Landlord of
any provision hereof. Consent to one assignment or subletting shall not be
deemed consent to any subsequent assignment or subletting. In the event of
default by any assignee of Tenant or any successor of Tenant in the performance
of any of the terms hereof, Landlord may proceed directly against Tenant without
the necessity of exhausting remedies against such assignee or successor.
(j) Anything in this Article 12 to the contrary notwithstanding
(including, without limitation, any provisions herein regarding permitted
assignments or subleases) no assignment or sublease shall be permitted under
this Lease if, at the time Tenant seeks approval therefor, or at any time
thereafter until such assignment or sublease becomes effective and shall be
implemented, Tenant is in default of any of its obligations under this Lease
beyond the expiration of applicable notice and grace periods provided for herein
for the cure thereof.
13. LANDLORD'S RIGHT OF ENTRY. Landlord and persons authorized by Landlord
may enter the Premises at all reasonable times upon twenty-four (24) hours
notice (except in the case of an emergency in which case no prior notice is
necessary) for the purpose of inspections, repairs, alterations to adjoining
space, appraisals, or other reasonable purposes; including enforcement of
Landlord's rights under this Lease. Landlord shall not enter Tenant's computer
room unless in the case of an emergency. Should Landlord need to gain access to
the computer room in an emergency situation, Landlord shall reasonably notify
Tenant in advance. Should Landlord be unable to provide advance notice of entry
to these areas, Landlord shall provide prompt notice following entry into the
computer room identifying the reason for entry. Landlord shall not be liable for
inconvenience to or disturbance of Tenant by reason of any such entry; provided,
however, that in the case of repairs or work, such shall be done, so far as
practicable, so as to not unreasonably interfere with Tenant's use of the
Premises. Provided, however, that such efforts shall not require Landlord to use
overtime labor unless Tenant shall pay for the increased costs to be incurred by
Landlord for such overtime labor. Landlord also shall have the right to enter
the Premises at all reasonable times after giving prior oral notice to Tenant,
to exhibit the Premises to any prospective purchaser, or mortgagee at all times,
and to a prospective tenant only during the last twelve (12) months of the Term.
Landlord shall not erect any "for rent" signs for the Premises earlier than
twelve (12) months prior to the expiration of the Term.
14. REPAIRS AND MAINTENANCE.
(a) (i) Except as specifically otherwise provided in subparagraphs (b)
and (c) of this Article, Tenant, at its sole cost and expense and throughout the
Term of this Lease, shall keep and maintain the Premises in good order and
condition, free of accumulation of dirt and rubbish, and shall promptly make all
non-structural repairs necessary to keep and maintain such good order and
condition. Tenant shall also be responsible for regularly-scheduled cleaning and
maintenance of the interior of the Premises. Tenant shall clean and maintain the
interior of the Premises in a manner and with frequency acceptable to Landlord,
in Landlord's reasonable discretion. Tenant shall have the option of replacing
lights, ballasts, tubes, ceiling tiles, outlets and similar equipment itself or
it shall have the ability to advise Landlord of Tenant's desire to have Landlord
make such repairs. If requested by Tenant, Landlord shall make such repairs to
the Premises within a reasonable time of notice to Landlord and shall charge
Tenant for such services at Landlord's standard rate (such rate to be
competitive with the market rate for such services). Tenant shall not use or
permit the use of any portion of the Premises for outdoor storage. When used in
this Article 14, the term "repairs" shall include replacements and renewals when
necessary. All repairs made by Tenant shall utilize materials and equipment
which are at least equal in quality and usefulness to those originally used in
constructing the Building and the Premises.
(ii)(A) Tenant shall maintain and repair, throughout the term and
any Renewal Term hereof, the HVAC Units servicing the Premises as shown and
designated on Exhibit "E" annexed hereto and made a part hereof (the "Premises
HVAC Units"). Tenant shall, at its own cost and expense, obtain service
contracts for the Premises HVAC Units, which contracts shall provide for the
routine inspection, maintenance and repair of the Premises HVAC Units and for
the scheduled replacement of consumable parts of the Premises HVAC Units, such
as filters, hoses, recharges and belts. Such contracts shall also be subject to
the approval of Landlord, such approval not to be unreasonably withheld or
unduly delayed. Landlord shall have the right to require that Tenant's
contractor perform periodic services with respect to the Premises HVAC Units in
accordance with Landlord's HVAC service specifications annexed hereto as Exhibit
"F". Landlord shall also have the right to require that Tenant use Landlord's
contractors to perform such services, provided the rates charged by Landlord's
contractors for such services are competitive with the rates then being charged
by other HVAC service contractors in Nassau and Suffolk County.
(B) Tenant shall also be responsible for all costs and
expenses (capital and otherwise) relating to the repair and/or replacement of
all of the Premises HVAC Units for a period of three (3) years from the
Commencement Date. In the event Tenant replaces any of the Premises HVAC Units
and/or its major components, as described below, during said first three (3)
year period, it is agreed that Landlord shall, subsequent to such replacement,
solely assume the future obligations for the replacement of such Premises HVAC
Unit and/or its major components (provided that Tenant shall otherwise remain
responsible for the routine inspection, maintenance and repair of same as
provided above) and same shall not be included in Tenant's HVAC Cost Share (as
hereinafter defined). At the expiration of said three (3) year period, Tenant
shall be responsible for the sum of (i) the first $350/ton (such tonage for each
Premises HVAC Unit is as indicated on Exhibit "E") of the cost of each capital
repair and/or replacement of an entire Premises HVAC Unit and/or its major
components such as compressors, bearings, motors, heat exchangers, condensors
and evaporator coils (in each case, a "Replaced Component or Unit"), plus (ii)
Tenant's HVAC Cost Share (as hereinafter defined) of the costs of repairing
and/or replacing each such Replaced Component or Unit which exceed said $350/ton
amount. For purposes of this subparagraph, the term "Tenant's HVAC Cost Share"
shall be determined using the following formula: the numerator shall be equal to
the number of months remaining in the term or any Renewal Term at the time a
Replaced Component or Unit is so repaired or replaced and the denominator shall
be one hundred and twenty (120) months. It is further agreed that, in the event
Tenant exercises its option(s) to extend the term of this Lease under Article 36
below subsequent to a determination of Tenant's HVAC Cost Share under this
subparagraph, Tenant's HVAC Cost Share shall be recalculated using the formula
set forth above, except that the numerator component shall be modified to
reflect the number of months of the applicable Renewal Term. By way of example,
if at the end of the eighth year of the initial term, a Premises HVAC Unit
requires replacement (and assuming that the first $350/ton for the particular
Premises HVAC Unit is equal to $5,000.00, but the cost of replacing such
Premises HVAC Unit exceeds $5,000), Tenant shall pay for $5,000.00 plus 24/120
or 2/10ths of the remaining cost of same in excess of $5,000.00 and Landlord
shall be responsible for the remaining 8/10ths of the cost of same in excess of
$5,000.00. In the event Tenant subsequently exercises its option(s) to renew the
term under Article 36 of this Lease, Tenant shall also be responsible for an
additional 5/10ths of the remaining cost of same in excess of $5,000 for the
first Renewal Term and additional 3/10ths of the remaining cost of same in
excess of $5,000 for the second Renewal Term, if applicable. Any amounts that
are due from Tenant hereunder shall be paid by Tenant upon the repair and/or
replacement of each Replaced Component or Unit, as the case may be, and at the
commencement of each Renewal Term, if applicable.
(b) Landlord, throughout the Term of this Lease and at Landlord's sole
cost and expense, shall make all necessary repairs and replacements to the
footings and foundations and the structural steel columns and girders forming a
part of the Premises.
(c) Landlord, throughout the Term of this Lease, shall make all
necessary repairs and replacements to the Building outside of the Premises and
the common areas, including the roof, walls, exterior portions of the Premises
and the Building, utility lines, equipment and other utility facilities in the
Building, which serve more than one tenant of the Building, and to any
driveways, sidewalks, curbs, loading, parking and landscaped areas, and other
exterior improvements for the Building; provided, however, that Landlord shall
have no responsibility to make any repairs unless and until Landlord receives
written notice of the need for such repair. Tenant shall pay Tenant's Allocated
Share of the cost of all repairs to be performed by Landlord pursuant to this
Paragraph 14(c) as Additional Rent as provided, and as limited by with respect
to specific capital items, in Article 6(m) hereof. It is specifically understood
and agreed that Landlord shall have an easement for full and unrestricted access
to and to use, maintain and repair all lines, equipment and other facilities in
the telephone room located in the Premises.
(d) Landlord shall keep and maintain all common areas appurtenant to
the Building and any sidewalks, parking areas, curbs and access ways adjoining
the Property in a clean and orderly condition, free of accumulation of dirt,
rubbish, snow and ice, and shall keep and maintain all landscaped areas in a
neat and orderly condition. Tenant shall pay Tenant's Allocated Share of the
cost of all work to be performed by Landlord pursuant to this Paragraph (d) as
Additional Rent as provided in Article 6 hereof.
(e) Notwithstanding anything herein to the contrary (but subject,
nevertheless, to the provisions of Article 15(c) hereof), repairs to the
Premises, Building or Project and its appurtenant common areas made necessary by
a negligent or willful act or omission of Tenant or any employee, agent,
contractor, or invitee of Tenant shall be made at the sole cost and expense of
Tenant.
15. INSURANCE; SUBROGATION RIGHTS.
(a) Tenant shall obtain and keep in force at all times during the term
hereof, at its own expense, comprehensive general liability insurance including
contractual liability and personal injury liability and all similar coverage,
with combined single limits of $3,000,000.00 on account of bodily injury to or
death of one or more persons as the result of any one accident or disaster and
on account of damage to property, or in such other amounts as Landlord may from
time to time require. The policy limits set forth herein shall be subject to
periodic review, and Landlord reserves the right to require that Tenant increase
the liability coverage limits if, in the reasonable opinion of Landlord, the
coverage becomes inadequate and is less than commonly maintained by tenants of
similar buildings in the area making similar uses.
(b) Intentionally Deleted.
(c) All insurance required hereunder shall not be subject to
cancellation without at least thirty (30) days prior notice to all insureds, and
shall name Landlord, Brandywine Realty Trust, Landlord's Agent and Tenant as
insureds, as their interests may appear, and, if requested by Landlord, any
liability policy held by Tenant for the Premises shall also name as an
additional insured as their interests may appear any mortgagee or holder of any
mortgage which may be or become a lien upon any part of the Premises. Prior to
the commencement of the Term, Tenant shall provide Landlord with certificates
and copies of the policy or policies of insurance above referred to, with
evidence that the coverages required have been obtained and that premiums have
been paid in full for the policy periods. Tenant shall also furnish to Landlord
throughout the term hereof replacement certificates or copies of renewal
polices, together with evidence of like paid premiums at least thirty (30) days
prior to the expiration dates of the then current policy or policies. All the
insurance required under this Lease shall be issued by insurance companies
authorized to do business in the State of New York with a financial rating of at
least an A-X as rated in the most recent edition of Best's Insurance Reports and
in business for the past five years. Except as otherwise provided herein, the
limit of any such insurance shall not limit the liability of Tenant hereunder.
If Tenant fails to procure and maintain such insurance, Landlord may, but shall
not be required to, procure and maintain the same, at Tenant's expense to be
reimbursed by Tenant as Additional Rent within ten (10) days of written demand.
Any deductible under such insurance policy or self-insured retention under such
insurance policy in excess of Ten Thousand ($10,000) must be approved by
Landlord in writing prior to issuance of such policy. Tenant shall not
self-insure without Landlord's prior written consent. The policy limits set
forth herein shall be subject to periodic review, and Landlord reserves the
right to require that Tenant increase the liability coverage limits if, in the
reasonable opinion of Landlord, the coverage becomes inadequate and is less than
commonly maintained by tenants of similar buildings in the area making similar
uses.
(d) Landlord shall obtain and maintain the following insurance during
the Term of this Lease: (i) replacement cost insurance including all risk perils
on the Building and on the Project, (ii) builder's risk insurance for the
Landlord Work to be constructed by Landlord in the Project, and (iii)
comprehensive liability insurance (including bodily injury and property damage)
covering Landlord's operations at the Project in amounts reasonably required by
the Landlord's lender or Landlord.
(e) Each party hereto, and anyone claiming through or under them by way
of subrogation, waives and releases any cause of action it might have against
the other party and Brandywine Realty Trust and their respective employees,
officers, members, partners, trustees and agents, on account of any loss or
damage that is insured against under any insurance policy required to be
obtained hereunder that covers the Project, Building or Premises, Landlord's or
Tenant's fixtures, personal property, leasehold improvements or business and
which names Landlord and Brandywine Realty Trust or Tenant, as the case may be,
as an additional insured as their interest may appear. Each party hereto agrees
that it will cause its insurance carrier to endorse all applicable policies
waiving the carrier's right of recovery under subrogation or otherwise against
the other party. Each party shall look solely to the proceeds of such policies
for compensation for loss, to the extent such proceeds are paid under such
policies.
16. INDEMNIFICATION. (a) Tenant shall defend, indemnify and hold harmless
Landlord, Brandywine Realty Services Corp. and Brandywine Realty Trust and their
respective employees and agents from and against any and all third-party claims,
actions, damages, liability and expense (including reasonable attorney's fees,
and expenses incurred in defense of any such claim or any action or proceeding
brought thereon) arising from (i) Tenant's improper use of the Premises, (ii)
the improper conduct of Tenant's business, (iii) any activity, work or things
done, permitted or suffered by Tenant in or about the Premises or elsewhere
contrary to the requirements of the Lease, (iv) any breach or default in the
performance of any obligation of Tenant's part to be performed under the terms
of this Lease, and (v) any negligence or willful act of Tenant or any of
Tenant's agents, contractors or employees and/or negligence or other tortious
acts of third-parties, and in case Landlord, Brandywine Realty Services Corp. or
Brandywine Realty Trust shall be made a party to any litigation commenced by or
against Tenant, its agents, subtenants, licensees, concessionaires, contractors,
customers or employees, then Tenant shall defend, indemnify and hold harmless
Landlord, Brandywine Realty Services Corp. and Brandywine Realty Trust and shall
pay all costs, expenses and reasonable attorney's fees incurred or paid by
Landlord, Brandywine Realty Services Corp. and Brandywine Realty Trust in
connection with such litigation, after notice to Tenant and Tenant's refusal to
defend such litigation, and upon notice from Landlord shall defend the same at
Tenant's expense by counsel satisfactory to Landlord. Tenant shall further
indemnify and hold harmless Landlord, Brandywine Realty Services Corp. and
Brandywine Realty Trust from and against any and all third-party claims,
actions, damages, liability and expense (including, without limitation,
reasonable attorney's fees and disbursements) which may be imposed upon or
incurred by or asserted against Landlord by reason of (a) loss of life, personal
injury and/or damage to property occurring in or about, or arising out of, the
Premises, adjacent sidewalks and loading platforms or areas and common areas
appurtenant to the Building occasioned by reason of any act or omission of
Tenant, its agents, subtenants, licensees, concessionaires, contractors,
customers, employees and/or third parties and (b) any failure on the part of
Tenant to keep, observe and perform any of the terms, covenants, agreements,
conditions, limitations or Rules and Regulations contained in this Lease on
Tenant's part to be kept, observed and performed.
(b) Landlord shall defend, indemnify and hold harmless Tenant and its
employees and agents from and against any and all third-party claims, actions,
damages, liability and expense (including reasonable attorney's fees, and
expenses incurred in defense of any such claim or any action or proceeding
brought thereon) arising from (i) any breach or default in the performance of
any obligation of Landlord's part to be performed under the terms of this Lease,
and (ii) any negligence or willful act of Landlord or any of Landlord's agents,
contractors and/or employees and in case Tenant shall be made a party to any
litigation commenced by or against Landlord, then Landlord shall defend,
indemnify and hold harmless Tenant and shall pay all costs, expenses and
reasonable attorney's fees incurred or paid by Tenant in connection with such
litigation, after notice to Landlord and Landlord's refusal to defend such
litigation, and upon notice from Tenant shall defend the same at Landlord's
expense by counsel satisfactory to Landlord.
17. QUIET ENJOYMENT. Provided Tenant has performed all of the terms and
conditions of this Lease, including the payment of Fixed Rent and Additional
Rent, to be performed by Tenant, Tenant shall peaceably and quietly hold and
enjoy the Premises for the Term, without hindrance from Landlord, or anyone
claiming by through or under Landlord under and subject to the terms and
conditions of this lease and of any mortgages now or hereafter affecting all of
or any portion of the Premises.
18. FIRE DAMAGE.
(a) Except as provided below, in case of damage to the Premises by fire
or other insured casualty, Landlord shall repair the damage. Such repair work
shall be commenced promptly following notice of the damage and completed with
due diligence, taking into account the time required for Landlord to effect a
settlement with and procure insurance proceeds from the insurer, except for
delays due to governmental regulation, scarcity of or inability to obtain labor
or materials, intervening acts of God or other causes beyond Landlord's
reasonable control.
(b) Notwithstanding the foregoing, if (i) the damage is of a nature or
extent that, in Landlord's reasonable judgment (to be communicated to Tenant
within sixty (60) days from the date of the casualty), the repair and
restoration work would require more than one hundred eighty (180) consecutive
days to complete after the casualty and, assuming normal work crews not engaged
in overtime, or (ii) if more than thirty (30%) percent of the total area of the
Building is extensively damaged, Landlord shall have the right to terminate this
Lease and all the unaccrued obligations of the parties hereto, by sending
written notice of such termination to the other within ten (10) days of Tenant's
receipt of the notice from Landlord described above. Such notice is to specify a
termination date no less than fifteen (15) days after its transmission;
provided, however, that in addition to the foregoing, in the event Tenant shall
have also vacated the Premises because the nature or extent of the damage
rendered the Premises untenantable, Tenant may by notice in writing to Landlord
within five (5) days of receipt of Landlord's written notice elect to make the
termination of the Lease retroactive to the date of such vacation of the
Premises by Tenant. Should fire damage occur to the Premises within the last
year of the Term of this Lease or should Landlord (in its reasonable judgement)
estimate the repair and restoration work would require more than two hundred ten
(210) days to complete after the casualty, Tenant, at its sole option, may
cancel the remaining Term of the Lease with no further liability. Should the
fire damage occur prior to the last year of the Lease Term, the Term of this
Lease shall be suspended during the restoration period following the fire so
that Tenant shall have the right to occupy the Premises for the full term of one
hundred twenty (120) months, in the aggregate.
(c) If the insurance proceeds received by Landlord as dictated by the
terms and conditions of any financing then existing on the Building, (excluding
any rent insurance proceeds) would not be sufficient to pay for repairing the
damage or are required to be applied on account of any mortgage which encumbers
any part of the Premises or Building, or if the nature of loss is not covered by
Landlord's fire insurance coverage, Landlord may elect either to (i) repair the
damage as above provided notwithstanding such fact or (ii) terminate this Lease
by giving Tenant notice of Landlord's election within thirty (30) days after
Landlord's knowledge of the damage and of the unavailability or insufficiency of
insurance proceeds. If the election is to terminate, Landlord shall give Tenant
at least fifteen (15) days prior notice specifying the termination date.
(d) In the event Landlord has not completed restoration of the Premises
within one hundred eighty (180) days from the date of casualty (subject to delay
due to weather conditions, shortages of labor or materials or other reasons
beyond Landlord's control which delay in any event will not exceed an additional
thirty (30) business days), Tenant may terminate this Lease by written notice to
Landlord within thirty (30) business days following the expiration of such one
hundred eighty (180) day period (as extended for reasons beyond Landlord's
control as provided above) unless, within thirty (30) business days following
receipt of such notice, Landlord has substantially completed such restoration
and delivered the Premises to Tenant for occupancy.
(e) In the event of damage or destruction to the Premises or any part
thereof, Tenant's obligation to pay Fixed Rent and Additional Rent shall be
equitably adjusted or abated, as provided below . If fire or other casualty
damages, destroys or renders the Premises, or any portion thereof, untenantable
or deprives Tenant of access to the Premises, or any portion thereof, then the
Rent attributable to the Premises or such portion shall be equitably abated for
the period beginning on the date of the damage or destruction and ending on the
date that Landlord's restoration of the Building has been sufficiently completed
so that Tenant can reasonably access and use the Premises for its regular
business operations. Landlord's restoration work shall be of substantially the
same character and at least of substantially the same quality as existed prior
to the occurrence of the fire or other casualty.
19. SUBORDINATION; RIGHTS OF MORTGAGEE.
(a) Subject to the provisions of subparagraph (c) of this Paragraph 19,
this Lease shall be subject and subordinate at all times to the lien of any
mortgages now or hereafter placed upon the Premises, Building and/or Project and
land of which they are a part without the necessity of any further instrument or
act on the part of Tenant to effectuate such subordination. Tenant further
agrees to execute and deliver upon demand such further instrument or instruments
evidencing such subordination of this Lease to the lien of any such mortgage and
such further instrument or instruments of attornment as shall be desired by any
mortgagee or proposed mortgagee or by any other person. Notwithstanding the
foregoing, any mortgagee may at any time subordinate its mortgage to this Lease,
without Tenant's consent, by notice in writing to Tenant, and thereupon this
Lease shall be deemed prior to such mortgage without regard to their respective
dates of execution and delivery and in that event such mortgagee shall have the
same rights with respect to this Lease as though it had been executed prior to
the execution and delivery of the mortgage.
(b) In the event Landlord shall be or is alleged to be in default of
any of its obligations owing to Tenant under this Lease, Tenant agrees to give
to the holder of any mortgage (collectively the "Mortgagee") now or hereafter
placed upon the Premises, Building and/or Project, notice by registered mail of
any such default which Tenant shall have served upon Landlord, provided that
prior thereto Tenant has been notified in writing (by way of Notice of
Assignment of Rents and/or Leases or otherwise in writing to Tenant) of the name
and addresses of any such Mortgagee. Tenant shall not be entitled to exercise
any right or remedy as there may be because of any default by Landlord without
having given such notice to the Mortgagee; and Tenant further agrees that if
Landlord shall fail to cure such default the Mortgagee shall have any additional
time periods (measured from the later of the date on which the default should
have been cured by Landlord or the Mortgagee's receipt of such notice from
Tenant), within which to cure such default, provided that if such default be
such that the same could not be cured within such period and Mortgagee is
diligently pursuing the remedies necessary to effectuate the cure (including but
not limited to foreclosure proceedings if necessary to effectuate the cure);
then Tenant shall not exercise any right or remedy as there may be arising
because of Landlord's default, including but not limited to, termination of this
Lease as may be expressly provided for herein or available to Tenant as a matter
of law, if the Mortgagee either has cured the default within such time periods,
or as the case may be, has initiated the cure of same within such period and is
diligently pursuing the cure of same as aforesaid.
(c) Landlord shall use reasonable efforts to deliver a subordination,
attornment and nondisturbance agreement ("Nondisturbance Agreement") from each
future Landlord's Mortgagee, on each such mortgagee's standard form, which shall
provide, inter alia, that the leasehold estate granted to Tenant under this
Lease will not be terminated or disturbed by reason of the foreclosure of the
mortgage held by Landlord's Mortgagee, so long as Tenant shall not be in default
under this Lease beyond the expiration of applicable notice and grace periods
provided for herein for the cure thereof and shall pay all sums due under this
Lease and in the event a future Mortgagee or its respective successor or assigns
shall enter into and lawfully become possessed of the Premises covered by this
Lease and shall succeed to the rights of Landlord hereunder, Tenant will attorn
to the successor as its landlord under this Lease and, upon the request of such
successor landlord, Tenant will execute and deliver an attornment agreement in
favor of the successor landlord. In the event a future Mortgagee shall be
unwilling to enter into a Nondisturbance Agreement as aforesaid, this Lease
shall remain in full force and effect and the obligations of Tenant shall not in
any manner be affected except that, anything to the contrary contained in this
Lease notwithstanding, this Lease shall not be subject and subordinate to such
future Mortgage.
20. CONDEMNATION.
(a) If more than twenty (20%) percent of the floor area of the Premises
is taken or condemned for a public or quasi-public use (a sale in lieu of
condemnation to be deemed a taking or condemnation for purposes of this Lease),
this Lease shall, at either party's option, terminate as of the date title to
the condemned real estate vests in the condemnor, and the Fixed Rent and
Additional Rent herein reserved shall be apportioned and paid in full by Tenant
to Landlord to that date and all rent prepaid for period beyond that date shall
forthwith be repaid by Landlord to Tenant and neither party shall thereafter
have any liability hereunder.
(b) If less than twenty (20%) percent of the floor area of the Premises
is taken or if neither Landlord nor Tenant have elected to terminate this Lease
pursuant to the preceding sentence, Landlord shall do such work as may be
reasonably necessary to restore the portion of the Premises not taken to
tenantable condition for Tenant's uses, but shall not be required to expend more
than the net award Landlord reasonably expects to be available for restoration
of the Premises. If Landlord determines that the damages available for
restoration of the Building and/or Project will not be sufficient to pay the
cost of restoration, or if the condemnation damage award is required to be
applied on account of any mortgage which encumbers any part of the Premises,
Building and/or Project, Landlord may terminate this Lease by giving Tenant
thirty (30) days prior notice specifying the termination date.
(c) If this Lease is not terminated after any such taking or
condemnation, the Fixed Rent and the Additional Rent shall be equitably reduced
in proportion to the area of the Premises which has been taken for the balance
of the Term.
(d) If a part or all of the Premises shall be taken or condemned, all
compensation awarded upon such condemnation or taking shall go to Landlord and
Tenant shall have no claim thereto other than Tenant's damages associated with
moving, storage and relocation; and Tenant hereby expressly waives, relinquishes
and releases to Landlord any claim for damages or other compensation to which
Tenant might otherwise be entitled because of any such taking or limitation of
the leasehold estate hereby created, and irrevocably assigns and transfers to
Landlord any right to compensation of all or a part of the Premises or the
leasehold estate. Notwithstanding anything to the contrary contained herein,
nothing shall preclude Tenant from intervening in any such condemnation
proceeding to claim or receive from the condemning authority any compensation
which Tenant may otherwise lawfully be entitled in such case for the expenses of
moving to a new location, reimbursement for the loss of Tenant's property,
including the initial improvements by Tenant, and trade fixtures, or for any
other benefits available to Tenant in such circumstances (provided same does not
reduce the amount of Landlord's award hereunder).
21. ESTOPPEL CERTIFICATE. Each party agrees at any time and from time to
time, within ten (10) days after the other party's written request, to execute,
acknowledge and deliver to the other party a written instrument in recordable
form certifying that this Lease is unmodified and in full force and effect (or
if there have been modifications, that it is in full force and effect as
modified and stating the modifications), and the dates to which Rent, Additional
Rent, and other charges have been paid in advance, if any, and stating whether
or not to the best knowledge of the party signing such certificate, the
requesting party is in default in the performance of any covenant, agreement or
condition contained in this Lease and, if so, specifying each such default of
which the signer may have knowledge. It is intended that any such certification
and statement delivered pursuant to this Article may be relied upon by any
prospective purchaser of the Project or any mortgagee thereof or any assignee of
Landlord's interest in this Lease or of any mortgage upon the fee of the
Premises or any part thereof.
22. DEFAULT.
If:
(i) Tenant fails to pay any installment of Fixed Rent or any amount of
Additional Rent within three (3) days after written notice from Landlord that
the same remains unpaid (provided Landlord shall only be obligated to give
Tenant such notice once per lease year).
(ii) Tenant "vacates" the Premises (other than in the case of a
permitted subletting or assignment) or permits the same to be unoccupied, in
either case, prior to the fourth year of the term hereof,
(iii) Tenant fails to observe or perform any of Tenant's other
agreements or obligations herein contained within thirty (30) days after written
notice specifying the default, or the expiration of such additional time period
as is reasonably necessary to cure such default, provided Tenant immediately
commences and thereafter proceeds with all due diligence and in good faith to
cure such default,
(iv) Tenant makes any assignment for the benefit of creditors,
(v) Tenant commits an act of federal or state bankruptcy or files a
petition or commences any proceeding under any bankruptcy or insolvency law,
(vi) a petition is filed or any proceeding is commenced against Tenant
under any federal or state bankruptcy or insolvency law and such petition or
proceeding is not dismissed within thirty (30) days,
(vii) Tenant is adjudicated a bankrupt,
(viii) Tenant by any act indicates its consent to, approval of or
acquiescence in, or a court approves, a petition filed or proceeding commenced
against Tenant under any federal or state bankruptcy or insolvency law,
(ix) a receiver or other official is appointed for Tenant or for a
substantial part of Tenant's assets or for Tenant's interests in this Lease,
(x) any attachment or execution against a substantial part of Tenant's
assets or of Tenant's interests in this Lease remains unstayed or undismissed
for a period of more than ten (10) days, or
(xi) a substantial part of Tenant's assets or of Tenant's interest in
this Lease is taken by legal process in any action against Tenant,then, in any
such event, an Event of Default shall be deemed to exist and Tenant shall be in
default hereunder.
A. If an Event of Default shall occur, the following provisions shall apply
and Landlord shall have, in addition to all other rights and remedies available
at law or in equity, the rights and remedies set forth therein, which rights and
remedies may be exercised upon or at any time following the occurrence of an
Event of Default unless, prior to such exercise, the Event(s) of Default has
been cured by Tenant in all respects, then, upon the occurrence, at any time
prior to or during the Term, of any one or more of such Events of Default,
Landlord, at any time thereafter, at Landlord's option, may give to Tenant a
five (5) days' notice of termination of this Lease and, in the event such notice
is given, this Lease and the Term shall come to an end and expire upon the
expiration of said five (5) days with the same effect as if the date of
expiration of said five (5) days were the expiration date, but Tenant shall
remain liable for damages as provided in Article 24.
(i) Interest on Damage Amounts. Any sums payable by Tenant hereunder,
which are not paid after the same shall be due, shall bear interest from that
day until paid at the rate of four (4%) percent over the then Prime Rate as
published daily under the heading "Money Rates" in The Wall Street Journal,
unless such rate be usurious as applied to Tenant, in which case the highest
permitted legal rate shall apply (the "Default Rate").
(ii) Statutory Rights. Landlord and Tenant shall have all rights and
remedies now or hereafter existing at law or in equity with respect to the
enforcement of either party's obligations hereunder and the recovery of the
Premises. No right or remedy herein conferred upon or reserved to Landlord and
Tenant shall be exclusive of any other right or remedy, but shall be cumulative
and in addition to all other rights and remedies given hereunder or now or
hereafter existing at law. Landlord and Tenant shall be entitled to injunctive
relief in case of the violation, or attempted or threatened violation, of any
covenant, agreement, condition or provision of this Lease, or to a decree
compelling performance of any covenant, agreement, condition or provision of
this Lease.
(iii) Remedies Not Limited. Nothing herein contained shall limit or
prejudice the right of Landlord or Tenant to exercise any or all rights and
remedies available to Landlord or Tenant by reason of default or to prove for
and obtain in proceedings under any bankruptcy or insolvency laws, an amount
equal to the maximum allowed by any law in effect at the time when, and
governing the proceedings in which, the damages are to be proved, whether or not
the amount be greater, equal to, or less than the amount of the loss or damage
referred to above.
(iv) No Waiver by Landlord. No delay or forbearance by Landlord in
exercising any right or remedy hereunder, or Landlord's undertaking or
performing any act or matter which is not expressly required to be undertaken by
Landlord shall be construed, respectively, to be a waiver of Landlord's rights
or to represent any agreement by Landlord to undertake or perform such act or
matter thereafter. Waiver by Landlord of any breach by Tenant of any covenant or
condition herein contained (which waiver shall be effective only if so expressed
in writing by Landlord) or failure by Landlord to exercise any right or remedy
in respect of any such breach shall not constitute a waiver or relinquishment
for the future of Landlord's right to have any such covenant or condition duly
performed or observed by Tenant, or of Landlord's rights arising because of any
subsequent breach of any such covenant or condition nor bar any right or remedy
of Landlord in respect of such breach or any subsequent breach. Landlord's
receipt and acceptance of any payment from Tenant which is tendered not in
conformity with the provisions of this Lease or following an Event of Default
(regardless of any endorsement or notation on any check or any statement in any
letter accompanying any payment) shall not operate as an accord and satisfaction
or a waiver of the right of Landlord to recover any payments then owing by
Tenant which are not paid in full, or act as a bar to the termination of this
Lease and the recovery of the Premises because of Tenant's previous default.
Tenant hereby expressly waives any and all rights of redemption granted
by or under any present or future laws in the event of Tenant being evicted or
dispossessed for any cause, or in the event of Landlord's obtaining possession
of the Premises, by reason of the violation by Tenant of any of the covenants
and conditions of this Lease or otherwise.
(v) No Waiver by Tenant. No delay or forbearance by Tenant in
exercising any right or remedy hereunder, or Tenant's undertaking or performing
any act or matter which is not expressly required to be undertaken by Tenant
shall be construed, respectively, to be a waiver of Tenant's rights or to
represent any agreement by Tenant to undertake or perform such other or matter
thereafter. Waiver by Tenant of any breach by Landlord of any covenant or
condition herein contained or failure by Tenant to exercise any right or remedy
in respect of any such breach shall not constitute a waiver or relinquishment
for the future of Tenant's right to have any such covenant or condition duly
performed or observed by Landlord or Tenant's rights arising because of any
subsequent breach of any such covenant or condition nor bar any right or remedy
of Tenant in respect of such breach or any subsequent breach.
B. If, at any time (i) Tenant shall be comprised of two (2) or more
persons, or (ii) Tenant's obligations under this Lease shall have been
guaranteed by any person other than Tenant, or (iii) Tenant's interest in this
Lease shall have been assigned, the word "Tenant", as used in subsection (iii)
and (iv) of Section 22, shall be deemed to mean any one or more of the persons
primarily or secondarily liable for Tenant's obligations under this Lease. Any
monies received by Landlord from or on behalf of Tenant during the pendency of
any proceeding of the types referred to in said subsections (iii) and (iv) shall
be deemed paid as compensation for the use and occupation of the Premises and
the acceptance of such compensation by Landlord shall not be deemed an
acceptance of Fixed Rent or a waiver on the part of Landlord of any rights under
this Section 22.
23. TERMINATION ON DEFAULT.
(A) If Tenant shall default in the payment when due of any installation
of Fixed Rent or in the payment when due of any Additional Rent and such default
shall continue for a period of five (5) days after notice by Landlord to Tenant
of such default, or if this Lease and the Term shall expire and come to an end
as provided in Article 22:
(i) Landlord and its agents and servants may immediately, or at any
time after such default or after the date upon which this Lease and the Term
shall expire and come to an end, re-enter the Premises or any part thereof,
without notice, either by summary proceedings or by any other applicable action
or proceeding, or by force or other means provided such force or other means are
lawful (without being liable to indictment, prosecution or damages therefor),
and may repossess the Premises and dispossess Tenant and any other persons from
the Premises and remove any and all of their property and effects from the
Premises; and
(ii) Landlord, at Landlord's option, my relet the whole or any part
or parts of the Premises from time to time, either in the name of Landlord or
otherwise, to such tenant or tenants, for such term or terms ending before, on
or after the expiration date, at such rental or rentals and upon such other
conditions, which may include concessions and free rent periods, as Landlord, in
its sole discretion, may determine. landlord shall have no obligation to relet
the Premises or any part thereof and shall in no event be liable for refusal or
failure to relet the Premises or any part thereof, or, in the event of any such
reletting, for refusal or failure to collect any Fixed Rent due upon any such
reletting, and no such refusal or failure shall operate to relieve Tenant of any
liability under this Lese or otherwise to affect any such liability; Landlord,
at Landlord's option, may make such repairs, replacements, alterations,
additions, improvements, decorations and other physical changes in and to the
Premises as Landlord, in its sole discretion, considers advisable or necessary
in connection with any such reletting or proposed reletting, without relieving
Tenant of any liability under this Lease or otherwise affecting any such
liability.
(B) Tenant, on its own behalf and on behalf of all persons claiming
through or under Tenant, including all creditors, does hereby waive any and all
rights which Tenant and all such person might otherwise have under any present
or future law to redeem the Premises, or to re-enter or repossess the Premises,
or to restore the operation of this Lease, after (i) Tenant shall have been
dispossessed by a judgment or by warrant of any court or judge, or (ii) any
re-entry by Landlord, or (iii) any expiration or termination of this Lease and
the Term, whether such dispossession, re-entry, expiration or termination shall
be by operation of law or pursuant to the provisions of this Lease. In the event
of a breach or threatened breach by Tenant or any persons claiming through or
under Tenant, of any term, covenant or condition of this Lease on Tenant's part
to be observed or performed, Landlord shall have the right to enjoin such breach
and the right to invoke any other remedy allowed by law or in equity as if
re-entry, summary proceeding and other special remedies were not provided in
this Lease for such breach. The rights to invoke the remedies hereinbefore set
forth are cumulative and shall not preclude Landlord from invoking any other
remedy allowed at law or in equity.
24. DAMAGES.
(A) If this Lease and the Term shall expire and come to an end as
provided in Article 22 or by or under any summary proceeding or any other action
or proceeding, or if Landlord shall re-enter the Premises as provided in Article
23 or by or under any summary proceedings or any other action or proceeding,
then, in any of said events:
(i) Tenant shall pay to Landlord all Fixed Rent, Additional Rent
and other charges payable under this Lease by Tenant to Landlord to the date
upon which this Lease and the Term shall have expired and come to an end or to
the date of re-entry upon the Premises by Landlord, as the case may be; and
(ii) Tenant shall also be liable for and shall pay to Landlord, as
damages, any deficiency (referred to as "Deficiency") between the Fixed Rent and
Additional Rent reserved in this Lease for the period which otherwise would have
constituted the unexpired portion of the Term and the net amount, if any, of
rents collected under any reletting effected pursuant to the provisions of
Section 23(A) for any part of such period (first deducting from the rents
collected under any such reletting all of Landlord's expenses in connection with
the termination of this Lease or Landlord's re-entry upon the Premises and with
such reletting including, but not limited to, all repossession costs, brokerage
commissions, legal expenses, attorneys' fees, alteration costs and other
expenses of preparing the Premises for such reletting). Any such Deficiency
shall be paid in monthly installments by Tenant on the days specified in this
Lease for payment of installments of Fixed Rent. Landlord shall be entitled to
recover from Tenant each monthly Deficiency as the same shall arise, and no suit
to collect the amount of the Deficiency for any month shall prejudice Landlord's
rights to collect the Deficiency for any subsequent month by a similar
proceeding; and
(iii) At any time after the Term shall have expired and come to an
end or Landlord shall have re-entered upon the Premises, as the case may be,
whether or not Landlord shall have collected any monthly Deficiencies as
aforesaid, Landlord shall be entitled to recover from Tenant, and Tenant shall
pay to Landlord, on demand, as and for liquidated and agreed final damages, a
sum equal to the amount by which the Fixed Rent and Additional Rent reserved in
this Lease for the period which otherwise would have constituted the unexpired
portion of the Term exceeds the then fair and reasonable rental value of the
Premises for the same period, both discounted to present worth at the rate of
six (6%) percent per annum. If, before presentation of proof of such liquidated
damages to any court, commission, or tribunal, the Premises, or any part
thereof, shall have been relet by Landlord for the period which otherwise would
have constituted the unexpired portion of the Term, or any part thereof, the
amount of Fixed Rent reserved upon such reletting shall be deemed, prima facie,
to be the fair and reasonable rental value for the part or the whole of the
Premises so relet during the term of the reletting.
(B) If the Premises, or any part thereof, shall be relet together with
other space in the Building, the rents collected or reserved under any such
reletting and the expenses of any such reletting shall be equitably apportioned
for the purposes of this Article 24. Tenant shall in no event be entitled to any
rents collected or payable under any reletting, whether or not such rents shall
exceed the rent reserved in this Lease. Solely for the purposes of this Article,
the term "Fixed Rent" as used in Section 24(A) shall mean the rent in effect
immediately prior to the date upon which this Lease and the Term shall have
expired and come to an end, or the date of re-entry upon the Premises by
Landlord, as the case may be, plus any Additional Rent payable pursuant to the
provisions of Article 6 for the year immediately preceding such event. Nothing
contained in Articles 22 and 23 of this Lease shall be deemed to limit or
preclude the recovery by Landlord from Tenant of the maximum amount allowed to
be obtained as damages by any statute or rule of law, or of any sums or damages
to which Landlord may be entitled in addition to the damages set forth in
Section 24(A).
25. CURING DEFAULTS.
(a) If Tenant shall default in the performance of any of its
non-monetary obligations hereunder, Landlord without prejudice and in addition
to any other rights it may have at law or in equity, after giving Tenant written
notice of such default and after failure by Tenant within thirty (30) days of
the receipt of such notice to correct or to undertake and diligently pursue
correction of said default(s) in which event the thirty day period shall be
extended for a reasonable time (which notice and/or opportunity to cure shall
not be required in case Landlord shall determine that an emergency exists
requiring prompt action), may cure such defaults(s) on behalf of Tenant. The
reasonable time granted to Tenant hereunder shall continue as long as the
default and/or the delay in curing same has been caused by causes beyond
Tenant's reasonable control, and cannot, with due diligence, be cured within
such thirty (30) day period). Tenant shall reimburse Landlord on demand for all
costs incurred by Landlord in that regard plus interest thereon from the date(s)
of expenditure at the Default Rate, which shall be deemed Additional Rent
payable hereunder.
(b) If Landlord shall default in the performance of any of its
obligations hereunder, Tenant , after giving Landlord written notice of such
default and after failure by Landlord within thirty (30) days of the receipt of
such notice to correct or to undertake and diligently pursue correction of said
default(s), in which event the thirty day period shall be extended for a
reasonable time, may cure such defaults(s) on behalf of Landlord. The reasonable
time granted to Landlord hereunder shall continue as long as the default and/or
the delay in curing same has been caused by causes beyond Landlord's reasonable
control, and cannot, with due diligence, be cured within such thirty (30) day
period). Landlord shall reimburse Tenant, within thirty (30) days of demand
therefor, for all actual costs incurred by Tenant in that regard.
26. LANDLORD'S REPRESENTATIONS AND WARRANTIES. Landlord represents and
warrants to Tenant as follows:
(a) Landlord is the fee owner of the Building and the Project; and
(b) Landlord has the authority to enter into this Lease.
27. SURRENDER. Tenant shall, at the expiration of the Term, promptly quit
and surrender the Premises in good order and condition and in conformity with
the applicable provisions of this Lease, excepting only reasonable wear and tear
and damage by fire or other insured casualty. Tenant shall have no right to hold
over beyond the expiration of the Term and in the event Tenant shall fail to
deliver possession of the Premises as herein provided, such occupancy shall not
be construed to effect or constitute other than a tenancy at sufferance. During
any period of occupancy beyond the expiration of the Term the amount of rent
owed to Landlord by Tenant shall automatically become one hundred fifty percent
(150%) of the sum of the Rent during the last month of the Term or the Renewal
Term, as the case may be, for the first month of such holdover period, one
hundred seventy five percent (175%) of the sum of the Rent during the last month
of the Term or the Renewal Term, as the case may be, for the second month and
thereafter two hundred percent (200%) of the sum of the Rent during the last
month of the Term or the Renewal Term, as the case may be. The acceptance of
rent by Landlord or the failure or delay of Landlord in notifying or evicting
Tenant following the expiration or sooner termination of the Term shall not
create any tenancy rights in Tenant and any such payments by Tenant shall be
deemed liquidated damages to Landlord and not a penalty (it being understood
that the same shall not prohibit Landlord from recovering damages from Tenant as
provided below in this Article 27). It is further agreed that in the event
Tenant continues to holdover for three (3) months after the expiration or
termination of this Lease, Tenant shall also be liable to Landlord for any
damages suffered by Landlord as result of Tenant's failure to surrender the
Premises. Landlord agrees to treat Tenant as a tenant at sufferance.
Notwithstanding anything in this Article contained to the contrary, the
acceptance of any Fixed Rent paid by Tenant pursuant to this Paragraph 27, shall
not preclude Landlord from commencing and prosecuting a holdover or eviction
action or proceeding or any action or proceeding in the nature thereof. The
preceding sentence shall be deemed to be an "agreement expressly providing
otherwise" within the meaning of Section 232-c of the Real Property Law of the
State of New York and any successor law of like import.
28. RULES AND REGULATIONS. Tenant agrees that at all times during the terms
of this Lease (as same may be extended) it, its employees, agents, invitees and
licenses shall comply with all rules and regulations specified on Exhibit "C"
attached hereto and made a part hereof, together with all reasonable Rules and
Regulations as Landlord may from time to time promulgate provided they do not
increase the financial burdens of Tenant or unreasonably restrict Tenant's
rights under this Lease. Tenant's right to dispute the reasonableness of any
changes in or additions to the Rules and Regulations shall be deemed waived
unless asserted to Landlord within ten (10) business days after Landlord shall
have given Tenant written notice of any such adoption or change. In case of any
conflict or inconsistency between the provisions of this Lease and any Rules and
Regulations, the provisions of this Lease shall control. Landlord shall have no
duty or obligation to enforce any Rule and Regulation, or any term, covenant or
condition of any other lease, against any other tenant, and Landlord's failure
or refusal to enforce any Rule or Regulation or any term, covenant of condition
of any other lease against any other tenant shall be without liability of
Landlord to Tenant. However, if Landlord does enforce Rules or Regulations,
Landlord shall endeavor to enforce same equally in a non-discriminatory manner.
29. GOVERNMENTAL REGULATIONS.
(a) Tenant shall, in the use and occupancy of the Premises and the
conduct of Tenant's business or profession therein, at all times comply with all
applicable laws, ordinances, orders, notices, rules and regulations of the
federal, state and municipal governments, or any of their departments and the
regulations of the insurers of the Premises. Notwithstanding anything contained
herein to the contrary, with respect to the Building and/or Project, Tenant
shall not be required to make any structural changes, repairs or improvements
that are not necessitated by Tenant's specific manner of use for the Premises as
distinguished from general office use. Landlord shall be responsible for
compliance with all applicable laws, ordinances, notices, rules and regulations
of the federal, state and municipal governments, or of any of their departments
and the regulations of the insureds of the Building or Project which are of
general applicability. Tenant may contest and appeal any applicable laws,
ordinances, orders, notice, rules and regulations of the federal, state and
municipal governments so long as Tenant shall be diligently contesting the
validity or applicability thereof to the Premises and provided same shall not
subject Landlord to fines or penalties or to prosecution for criminal, civil or
administrative violations or orders.
(b) Without limiting the generality of the foregoing, Tenant shall (i)
obtain, at Tenant's expense, before engaging in Tenant's business or profession
within the Premises, all necessary licenses and permits including (but not
limited to) state and local business licenses or permits, and (ii) remain in
compliance with and keep in full force and effect at all times all licenses,
consents and permits necessary for the lawful conduct of Tenant's business or
profession at the Premises. Tenant shall pay all personal property taxes, income
taxes and other taxes, assessments, duties, impositions and similar charges
which are or may be assessed, levied or imposed upon Tenant and which, if not
paid, could be liened against the Premises or against Tenant's property therein
or against Tenant's leasehold estate.
(c) Landlord shall be responsible for compliance with Title III of the
Americans with Disabilities Act of l990, 42 U.S.C. Section 12181 et seq. and its
regulations, (collectively, the "ADA") as to the design and construction of
exterior common areas (e.g. sidewalks and parking areas). Except as set forth
above in the initial sentence hereto, Tenant shall be responsible for compliance
with the ADA in all other respects concerning the use and occupancy of the
Premises, which compliance shall include, without limitation (i) provision for
full and equal enjoyment of the goods, services, facilities, privileges,
advantages or accommodations of the Premises as contemplated by and to the
extent required by the ADA, (ii) compliance relating to requirements under the
ADA or amendments thereto arising after the date of this Lease and (iii)
compliance relating to the design, layout, renovation, redecorating,
refurbishment, alteration, or improvement to the Premises made or requested by
Tenant at any time following completion of the Landlord's Work.
(d) Tenant shall indemnify, protect, defend and save Landlord harmless
with regard to any non-compliance or alleged non-compliance by Tenant with any
law, order, ordinance, regulation, permit, license or other governmental matter
in any way relating to the conduct of Tenant's business or profession in the
Premises. If Landlord is named as defendant or a responsible party with respect
to any alleged violation or non-compliance by Tenant as aforesaid, Landlord also
may require, by notice to Tenant, that the matters or conduct giving rise
thereto be discontinued by Tenant unless and until the alleged violation or
non-compliance is resolved in Tenant's favor.
30. NOTICES. Wherever in this Lease it shall be required or permitted that
notice or demand be given or served by either party to this Lease to or on the
other party, such notice or demand shall be deemed to have been duly given or
served if in writing and either: (i) personally served; (ii) delivered by
pre-paid nationally recognized overnight courier service (e.g. Federal Express)
with evidence of receipt required for delivery; or (iii) forwarded by Registered
or Certified mail, return receipt requested, postage prepaid; in all such cases
addressed to the parties at the addresses set forth in Article 1(l) hereof. Each
such notice shall be deemed to have been given to or served upon the party to
which addressed on the date the same is delivered or delivery is refused. Either
party hereto may change its address to which said notice shall be delivered or
mailed by giving written notice of such change to the other party hereto, as
herein provided.
31. BROKERS. Tenant represents and warrants to Landlord that Tenant has had
no dealings, negotiations or consultations with respect to the Premises or this
transaction with any broker or finder and that otherwise no broker or finder
called the Premises to Tenant's attention for lease or took any part in any
dealings, negotiations or consultations with respect to the Premises or this
Lease. Tenant agrees to indemnify and hold Landlord harmless from and against
all liability, cost and expense, including attorney's fees and court costs,
arising out of any misrepresentation or breach of warranty under this Article.
32. INTENTIONALLY DELETED.
33. LANDLORD'S LIABILITY. Landlord's obligations hereunder shall be binding
upon Landlord only for the period of time that Landlord is in ownership of the
Building; and, upon termination of that ownership, Tenant, except as to any
obligations which are then due and owing, shall look solely to Landlord's
successor in interest in the Building for the satisfaction of each and every
obligation of Landlord hereunder. Landlord shall have no personal liability
under any of the terms, conditions or covenants of this Lease and Tenant shall
look solely to the equity of Landlord in the Building of which the Premises form
a part for the satisfaction of any claim, remedy or cause of action accruing to
Tenant as a result of the breach of any section of this Lease by Landlord. In
addition to the foregoing, no recourse shall be had for an obligation of
Landlord hereunder, or for any claim based thereon or otherwise in respect
thereof, against any past, present or future trustee, member, partner,
shareholder, officer, director, partner, agent or employee of Landlord, whether
by virtue of any statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise, all such other liability being expressly waived and
released by Tenant with respect to the above-named individuals and entities.
34. AUTHORITY. Tenant represents and warrants that (a) Tenant is duly
organized, validly existing and legally authorized to do business in the State
of New York, and (b) the persons executing this Lease are duly authorized to
execute and deliver this Lease on behalf of Tenant.
35. NO OFFER. The submission of the Lease by Landlord to Tenant for
examination does not constitute a reservation of or option for the Premises or
of any other space within the Building or in other buildings owned or managed by
Landlord or its affiliates. This Lease shall become effective as a Lease only
upon the execution and legal delivery thereof by both parties hereto.
36. RENEWAL. (a) Provided Tenant is not in default of any obligations under
this Lease, either at the time of exercise of this option, or at the
commencement of each Renewal Term and Tenant is fully occupying the Premises and
the Lease is in full force and effect, Tenant shall have the right to renew this
Lease for two term(s) of five years each beyond the end of the initial Term
(each, a "Renewal Term"). Tenant shall furnish written notice of its intent to
renew one (1) year prior to the expiration of the applicable Term, failing
which, such renewal right shall be deemed waived; time being of the essence. The
terms and conditions of this Lease during each Renewal Term shall remain
unchanged except that: (i) the Annual Fixed Rent for the first Renewal Term
shall be the greater of (A) the Annual Fixed Rent for the last year of the
initial term, plus 3%, with increases of 3% for each additional year of the
first Renewal Term; and (B) the Annual Fixed Rent, as adjusted in the manner set
forth below, based upon the Consumer Price Index (as hereinafter defined) plus
3.5% for each year of the first Renewal Term; and (ii) the Annual Fixed Rent for
the second Renewal Term shall be the greater of (A) the Annual Fixed Rent for
the last year of the first Renewal Term, plus 3%, with increases of 3% for each
additional year of the second Renewal Term and (B) the Annual Fixed Rent, as
adjusted in the manner set forth below, based upon the Consumer Price Index plus
3.5% for each year of the second Renewal Term. In the event Tenant leases the
Premises for the first Renewal Term, Tenant shall be entitled to new carpeting
($18.00/yard allowance, increased by the cumulative increase in the Consumer
Price Index from the date of this Lease to the commencement of the Renewal Term)
and paint throughout the Premises using paint equal to the quality of paint
presently existing in the Premises. Anything herein contained to the contrary
notwithstanding, Tenant shall have no right to renew the term hereof other than
or beyond the two (2) consecutive five (5) year terms hereinabove described. It
shall be a condition of each such Renewal Term that Landlord and Tenant shall
have executed, not less than nine (9) months prior to the expiration of the then
expiring term hereof, an appropriate amendment to this Lease, in form and
content satisfactory to each of them, memorializing the extension of the term
hereof for the next ensuing Renewal Term.
(b) Definitions: For the purposes of this Article, the following
definitions shall apply:
(i) The term "Base Month" shall mean the first full calendar month
during which the term of this Lease commences. The term "Base Renewal Month"
shall mean the first full calendar month of the first Renewal Term.
(ii) The term "Price Index" shall mean the "Consumer Price Index"
published by the Bureau of Labor Statistics of the U.S. Department of Labor, All
Items, New York, New York-Northeastern, New Jersey, for urban wage earners and
clerical workers or a successor or substitute index appropriately adjusted.
(c) Subject to the provisions of subparagraph (a) of this Paragraph 36,
effective as of the first Renewal Term and the second Renewal Term, there shall
be made a cost of living adjustment of the Annual Fixed Rate payable hereunder.
The adjustment for the first Renewal Term shall be based on the percentage
difference between the Price Index for the last full calendar month of the
initial term and the Price Index for the Base Month. The adjustment for the
second Renewal Term shall be based on the percentage difference between the
Price Index for the last full calendar month of the first Renewal Term and the
Price Index for the Base Renewal Month.
(i) In the event the Price Index for the last full calendar month
of the initial term reflects an increase over the Price Index for the Base
Month, then the Annual Fixed Rent to be paid as of the commencement of the first
Renewal Term shall be multiplied by the percentage difference between the Price
Index for the last full calendar month of the initial term and the Price Index
for the Base Month, and the resulting sum (plus 3.5%) shall be added to the
Annual Fixed Rate effective as of the commencement of the first Renewal Term
(the "First Renewal Term Annual Fixed Rent"). The First Renewal Term Annual
Fixed Rent shall be increased by 3.5% annually for each subsequent year of the
first Renewal Term. In the event the Price Index for the last full calendar
month of the first Renewal Term reflects an increase over the Price Index for
the Base Renewal Month, then the Annual Fixed Rent to be paid as of the
commencement of the second Renewal Term shall be multiplied by the percentage
difference between the Price Index for the last full calendar month of the first
Renewal Term and the Price Index for the Base Renewal Month, and the resulting
sum (plus 3.5%) shall be added to the Annual Fixed Rate effective as of the
commencement of the second Renewal Term (the "Second Renewal Term Annual Fixed
Rent"). The Second Renewal Term Annual Fixed Rent shall be increased by 3.5%
annually for each subsequent year of the second Renewal Term.
(ii) The following illustrates the intentions of the parties
hereto as to the computation of the aforementioned cost of living adjustment in
the Annual Fixed Rent payable hereunder:
Assuming that the Annual Fixed Rent for the initial term is
$10.00 per square feet, that the Price Index for the Base
Month was 102.0 and that the Price Index for the last full
month of the initial term was 137.0, then the percentage
increase thus reflected, i.e., 35 would be multiplied by 10.00
and the Annual Fixed Rent for the first year of the first
Renewal Term would be $13.50 (plus 3.5%) per square feet.
In the event such Price Index (or a successor or substitute index) is not
available, a reliable governmental or other non-partisan publication evaluating
the information theretofore used in determining the Price Index shall be used.
(d) A statement of the cost of living adjustment to be furnished by
Landlord as provided in subdivision (b) above shall consist of data prepared for
Landlord by a firm of Certified Public Accountants (who may be the firm now or
then currently employed by Landlord for the audit of its accounts). The
statements thus furnished to Tenant shall constitute a final determination as
between Landlord and Tenant of the cost of living adjustment for the periods
represented thereby.
(e) In no event shall the Annual Fixed Rent originally provided to be
paid under this Lease be reduced.
(f) Any delay or failure of Landlord, in computing or billing for the
rent adjustments hereinabove provided, shall not constitute a waiver of or in
any way impair the continuing obligation of Tenant to pay such rent adjustments
hereunder.
37. MISCELLANEOUS PROVISIONS.
A. Successors. The respective rights and obligations provided in this
Lease shall bind and inure to the benefit of the parties hereto, their
successors and assigns; provided, however, that no rights shall inure to the
benefit of any successors of Tenant unless Landlord's written consent for the
transfer to such successor and/or assignee has first been obtained as provided
in Article 12 hereof.
B. Governing Law. This Lease shall be construed, governed and enforced
in accordance with the laws of the State of New York, without regard to
principles relating to conflicts of law.
C. Severability. If any provisions of this Lease shall be held to be
invalid, void or unenforceable, the remaining provisions hereof shall in no way
be affected or impaired and such remaining provisions shall remain in full force
and effect.
D. Captions. Marginal captions, titles or exhibits and riders and the
table of contents in this Lease are for convenience and reference only, and are
in no way to be construed as defining, limiting or modifying the scope or intent
of the various provisions of this Lease.
E. Gender. As used in this Lease, the word "person" shall mean and
include, where appropriate, an individual, corporation, partnership or other
entity; the plural shall be substituted for the singular, and the singular for
the plural, where appropriate; and the words of any gender shall mean to include
any other gender.
F. Entire Agreement. This Lease, including the Exhibits and any Riders
hereto (which are hereby incorporated by this reference, except that in the
event of any conflict between the printed portions of this Lease and any
Exhibits or Riders, the term of such Exhibits or Riders shall control),
supersedes any prior discussions, proposals, negotiations and discussions
between the parties and the Lease contains all the agreements, conditions,
understandings, representations and warranties made between the parties hereto
with respect to the subject matter hereof, and may not be modified orally or in
any manner other than by an agreement in writing signed by both parties hereto
or their respective successors in interest. Without in any way limiting the
generality of the foregoing, this Lease can only be extended pursuant to the
terms hereof, and in Tenant's case, with the terms hereof, and in Tenant's case,
with the due exercise of an option (if any) contained herein or a formal
agreement signed by both Landlord and Tenant specifically extending the term. No
negotiations, correspondence by Landlord or offers to extend the term shall be
deemed an extension of the termination date for any period whatsoever.
G. Counterparts. This Lease may be executed in any number of
counterparts, each of which when taken together shall be deemed to be one and
the same instrument.
H. Telefax Signatures. The parties acknowledge and agree that
notwithstanding any law or presumption to the contrary a telefaxed signature of
either party whether upon this Lease or any related document shall be deemed
valid and binding and admissible by either party against the other as if same
were an original ink signature.
I. Calculation of Time. In computing any period of time prescribed or
allowed by any provision of this Lease, the day of the act, event or default
from which the designated period of time begins to run shall not be included.
The last day of the period so computed shall be included, unless it is a
Saturday, Sunday or a legal holiday, in which event the period runs until the
end of the next day which is not a Saturday, Sunday, or legal holiday. Unless
otherwise provided herein, all Notices and other periods expire as of 5:00 p.m.
(local time in Newtown Square, Pennsylvania) on the last day of the Notice or
other period.
J. No Merger. There shall be no merger of this Lease or of the
leasehold estate hereby created with the fee estate in the Premises or any part
thereof by reason of the fact that the same person, firm, corporation, or other
legal entity may acquire or hold, directly or indirectly, this Lease of the
leasehold estate and the fee estate in the Premises or any interest in such fee
estate, without the prior written consent of Landlord's mortgagee.
K. Time of the Essence. TIME IS OF THE ESSENCE IN ALL PROVISIONS OF
THIS LEASE, INCLUDING ALL NOTICE PROVISIONS TO BE PERFORMED BY OR ON BEHALF OF
LANDLORD AND TENANT.
L. Recordation of Lease. Tenant shall not record this Lease or a
memorandum thereof.
M. Accord and Satisfaction. No payment by Tenant or receipt by Landlord
of a lesser amount than any payment of Fixed Rent or Additional Rent herein
stipulated shall be deemed to be other than on account of the earliest
stipulated Fixed Rent or Additional Rent due and payable hereunder, nor shall
any endorsement or statement or any check or any letter accompanying any check
or payment as Rent be deemed an accord and satisfaction. Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such Rent or pursue any other right or remedy provided for in this
Lease, at law or in equity. No payment by Landlord of a lesser amount than any
payment due to Tenant by Landlord shall be deemed to be other than on account of
the earliest stipulated payment due hereunder, nor shall any endorsement or
statement or any check or any letter accompanying any check or payment be deemed
an accord and satisfaction. Tenant may accept such check or payment without
prejudice to Tenant's right to recover the balance of any such payment or pursue
any other right or remedy provided in this Lease, at law or in equity.
N. No Partnership. Landlord does not, in any way or for any purpose,
become a partner of Tenant in the conduct of its business, or otherwise, or
joint venturer or a member of a joint enterprise with Tenant. This Lease
establishes a relationship solely of that of a landlord and tenant.
O. No Presumption Against Drafter. Landlord and Tenant understand,
agree, and acknowledge that: (i) this Lease has been freely negotiated by both
parties; and (ii) that, in the event of any controversy, dispute, or contest
over the meaning, interpretation, validity, or enforceability of this Lease, or
any of its terms or conditions, there shall be no inference, presumption, or
conclusion drawn whatsoever against either party by virtue of that party having
drafted this Lease or any portion thereof.
P. Additional Parking. If Landlord constructs any additional parking at
the Project, the same shall have the same level of illumination as exists in the
parking areas presently servicing the Project.
38. WAIVER OF TRIAL BY JURY. LANDLORD AND TENANT WAIVE THE RIGHT TO A TRIAL
BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT
MATTER OF THIS LEASE. THIS WAIVER IS KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY
MADE BY TENANT AND TENANT ACKNOWLEDGES THAT NEITHER LANDLORD NOR ANY PERSON
ACTING ON BEHALF OF LANDLORD HAS MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS
WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. TENANT
FURTHER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED (OR HAS HAD THE OPPORTUNITY TO
BE REPRESENTED) IN THE SIGNING OF THIS LEASE AND IN THE MAKING OF THIS WAIVER BY
INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD
THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. TENANT FURTHER ACKNOWLEDGES
THAT IT HAS READ AND UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS WAIVER
PROVISION AND AS EVIDENCE OF SAME HAS EXECUTED THIS LEASE.
39. CONSENT TO JURISDICTION. Tenant hereby consents to the exclusive
jurisdiction of the state courts located in Nassau and Suffolk County, New York
and to the federal courts located in the in the Southern District of New York.
40. SECURITY CAMERAS. Tenant shall have the right to install and maintain
security cameras and infrared lighting on the exterior of the Building at the
locations shown on Exhibit "D" annexed hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Lease under seal
the day and year first above written.
WITNESS: LANDLORD:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ BRANDYWINE OPERATING PARTNERSHIP, L.P.
By: Brandywine Realty Trust, its
general partner
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------- -----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
WITNESS: TENANT:
▇▇▇▇▇▇ Agrippina ▇▇▇▇▇▇ INTERNATIONAL CORP.
/s/ ▇▇▇▇▇▇ Agrippina By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------- -----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
and Chief Financial Officer
EXHIBIT "A"
----------
SPACE PLAN
----------
EXHIBIT "B"
----------
CONFIRMATION OF LEASE TERM
--------------------------
THIS MEMORANDUM made as of the 8th day of March, 2001, between BRANDYWINE
OPERATING PARTNERSHIP, L.P., a Delaware limited partnership, with an office at
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Landlord")
and ▇▇▇▇▇▇ INTERNATIONAL CORP., with its principal place of business at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Tenant"), who entered into a
lease dated for reference purposes as of March 8, 2001, covering certain
premises located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. All
capitalized terms, if not defined herein, shall be defined as they are defined
in the Lease.
1. The Parties to this Memorandum hereby agree that the date of March 8,
2001 is the "Commencement Date" of the Term, that the date March 8, 2001 is the
Rent Commencement Date and the date March 31, 2011 is the expiration date of
this Lease.
2. Tenant hereby confirms the following:
(a) That it has accepted possession of the Premises pursuant to the
terms of the Lease;
(b) That the improvements required to be furnished according to the
Lease by Landlord have been Substantially Completed;
(c) That Landlord has fulfilled all of its duties of an inducement
nature or are otherwise set forth in the Lease;
(d) That there are no offsets or credits against rentals, nor has any
security deposit been paid except as provided by the Lease Terms;
(e) That the Lease is in full force and effect.
3. Landlord hereby confirms the following:
(a) That the improvements required to be furnished according to the
Lease by Tenant have been substantially completed;
(b) That Tenant has fulfilled all of its duties as set forth in the
lease;
(c) That all Rent and Additional Rent are paid to date;
(d) That there is no default by Tenant;
(e) That the Lease is in full force and effect.
4. This Memorandum, each and all of the provisions hereof, shall inure to
the benefit, or bind, as the case may require, the parties hereto, and their
respective successors and assigns, subject to the restrictions upon assignment
and subletting contained in the Lease.
WITNESS: LANDLORD:
BRANDYWINE OPERATING PARTNERSHIP, L.P.
By: Brandywine Realty Trust,
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------- -----------------------------------
[SEAL] ▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
WITNESS: TENANT:
▇▇▇▇▇▇ INTERNATIONAL
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------ -----------------------------------
[SEAL] ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice
President-Finance and
Administration and Chief Financial
Officer
EXHIBIT "C"
----------
BUILDING RULES AND REGULATIONS
LAST REVISION: OCTOBER 1, 1998
------------------------------
Landlord reserves the right to rescind any of these rules and make such other
and further rules and regulations as in the judgment of Landlord shall from time
to time be needed for the safety, protection, care and cleanliness of the
Project, the operations thereof, the preservation of good order therein and the
protection and comfort of its tenants, their agents, employees and invitees,
which rules when made and notice thereof given to Tenant shall be binding upon
him in a like manner as if originally prescribed. Landlord will notify Tenant in
writing of any changes to the Building Rules and Regulations.
1. Sidewalks, entrances, passages, elevators, vestibules, stairways,
corridors, halls, lobby and any other part of the Building shall not be
obstructed or encumbered by any Tenant or used for any purpose other than
ingress or egress to and from each tenant's premises. Landlord shall have
the right to control and operate the common portions of the Building and
exterior facilities furnished for common use of the tenants (such as the
eating, smoking, and parking areas) in such a manner as Landlord deems
best.
2. No awnings or other projections shall be attached to the outside walls of
the Building without the prior written consent of Landlord. All drapes, or
window blinds, must be of a quality, type and design, color and attached
in a manner approved by Landlord.
3. No showcases or other articles shall be put in front of or affixed to any
part of the exterior of the Building, or placed in hallways or vestibules
without prior written consent of Landlord.
4. Rest rooms and other plumbing fixtures shall not be used for any purposes
other than those for which they were constructed and no debris, rubbish,
rags or other substances shall be thrown therein. Only standard toilet
tissue may be flushed in commodes. All damage resulting from any misuse of
these fixtures shall be the responsibility of the Tenant who, or whose
employees, agents, visitors, clients, or licensees shall have caused same.
5. Tenants shall not construct or maintain, use or operate in any part of the
project any electrical device, wiring or other apparatus in connection
with a loud speaker system or other sound/communication system which may
be heard outside the Premises. Any such communication system to be
installed within the Premises shall require prior written approval of
Landlord.
6. No tenant shall cause or permit any unusual or objectionable odors to be
produced upon or permeate from its premises.
7. No space in the Building shall be used for the manufacture of goods for
sale in the ordinary course of business, or for sale at auction of
merchandise, goods or property of any kind.
8. No tenant, or employees of Tenant, shall make any unseemly or disturbing
noises or disturb or interfere with the occupants of this or neighboring
buildings or residences by voice, musical instrument, radio, talking
machines, whistling, singing, or in any way. All passage through the
Building's hallways, elevators, and main lobby shall be conducted in a
quiet, business-like manner.
9. No tenant shall throw anything out of the doors, windows, or down
corridors or stairs of the Building.
10. No smoking is permitted in the rest rooms, hallways, elevators, stairs,
lobby, exit and entrances vestibules, sidewalks, parking lot area except
for the designated exterior smoking area. All cigarette ashes and butts
are to be deposited in the containers provided for same, and not disposed
of on sidewalks, parking lot areas, or toilets within the Building rest
rooms.
11. All doors to hallways and corridors shall be kept closed during business
hours except as they may be used for ingress or egress.
12. Tenants must be responsible for all Security Access cards issued to them,
and to secure the return of same from any employee terminating employment
with them. No person/company other than Building Tenants and/or their
employees may have Security Access cards unless Landlord grants prior
written approval.
13. Landlord reserves the right to inspect all freight to be brought into the
Building, and to exclude from the Building all freight or other material
which violates any of these rules and regulations.
14. Landlord reserves the right to exclude from the Building at all times any
person who is not known or does not properly identify himself to
Landlord's management or security personnel.
15. No space within the Building, or in the common areas such as the parking
lot, may be used at any time for the purpose of lodging, sleeping, or for
any immoral or illegal purposes.
16. No employees or invitees of Tenant shall use the hallways, stairs, lobby,
or other common areas of the Building as lounging areas during "breaks" or
during lunch periods.
17. Each tenant, before closing and leaving their premises, should lower the
blinds within their spaces.
18. No canvassing, soliciting or peddling is permitted in the Building or its
common areas by tenants, their employees, or other persons. Each tenant
shall cooperate to prevent same and shall report any such incident to
Landlord's management.
19. No mats, trash, or other objects shall be placed in the public corridors,
hallways, stairs, or other common areas of the Building.
20. Tenant must place all recyclable items of cans, bottles, plastic and
office recyclable paper in appropriate containers provided by Landlord in
each tenant's space. Removal of these recyclable items will be by
Landlord's janitorial personnel.
21. No pictures, signage, advertising, decals, banners, etc. are permitted to
be placed in or on windows in such a manner as they are visible from the
exterior, without the prior written consent of Landlord.
22. Tenant or Tenant's employees are prohibited at any time from eating or
drinking in hallways, elevators, rest rooms, lobby or lobby vestibules.
23. No tenant shall permit the visit to its Premises of persons in such
numbers or under such conditions as to interfere with the use and
enjoyment of the entrances, hallways, elevators, lobby or other public
portions or facilities of the Building and exterior common areas by other
tenants.
24. Landlord's employees shall not perform any work or do anything outside of
their regular duties unless under special instructions from Landlord.
Requests for such requirements must be submitted in writing to Landlord.
25. Tenant agrees that neither Tenant nor its agents, employees, licensees or
invitees will interfere in any manner with the installation and/or
maintenance of the heating, air conditioning and ventilation facilities
and equipment.
26. Landlord will not be responsible for lost or stolen personal property,
equipment, money or jewelry from Tenant's area or common areas of the
Project regardless of whether such loss occurs when area is locked against
entry or not.
27. Landlord will not permit entrance to Tenant's Premises by use of pass key
controlled by Landlord, to any person at any time without written
permission of Tenant, except employees, contractors or service personnel
supervised or employed by Landlord.
28. Tenant and its agents, employees and invitees shall observe and comply
with the driving and parking signs and markers on the Building grounds and
surrounding areas.
29. Tenant and its employees, invitees, agents, etc. shall not enter other
separate tenants' hallways, restrooms or premises unless they have
received prior approval from Landlord's management.
EXHIBIT "D"
----------
STANDARD CLEANING SPECIFICATIONS
--------------------------------
INTENTIONALLY DELETED
---------------------
EXHIBIT "E"
-----------
PREMISES HVAC DIAGRAM INCLUDING LIST OF AIR CONDITIONING UNITS
--------------------------------------------------------------
EXHIBIT "E1"
------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
List of Air Conditioning Equipment Low Roof:
1. Trane Model #SFHB 2004LJ10F22
Ser #J86F8132 (1986)
Voltage 460/3/60
Tonage 20 tons
2. Trane Model #SFHB2504LJ10F32DG4T
Ser #▇▇▇▇▇▇▇▇▇ (1986)
Voltage 460/3/60
Tonage 25 tons
3. Trane Model #BTC012F40C
Ser #▇▇▇▇▇▇▇▇▇ (1986)
Voltage 460/3/60
Tonage 10 tons
14. Luxaire Model #DAYAFD24N045
Ser #NDEM045994 (4/96)
Voltage 208/1/60
Tonage 2 tons
15. Luxaire Model #DAYAFO24NO45
Ser #NCFM02549 (3/97)
Voltage 201/1/60
Tonage 2 tons
Air Conditioning Equipment High Roof:
4. Luxaire Model #DGUCW048N125 (1997)
Ser #NKEM025949
Voltage 460/3/60
Tonage 4 tons
5. Trane BYC060E4MOAA
Ser #Y34143876D (1986)
Voltage 460/3/60
Tonage 5 tons
6. Trane Model #SFHB 2004CJ10F22DG4T
Ser # 586F81379 (A86)
Voltage 460/3/60
Tonage 20 tons
7. Trane Model #BYE10064LOB
Ser # 804144113D (1986)
Voltage 460/3/60
Tonage 10 tons
8. Trane Model #SFHB2504LJ10F32DG4T
Ser #586F81377 (1986)
Voltage 460/3/60
Tonage 25 tons
9. Trane Model #SFHB2004LJ10F22DG4T
Ser #J86F81381 (1986)
Voltage 460/3/60
Tonage 20 tons
10. Trane Model #BYC200G4LOBB
Ser #S04143106D (1986)
Voltage 460/3/60
Tonage 20 tons
11. Trane Model #SFHB2004LJ10F22DG4T
Ser #J86F81380 (1986)
Voltage 460/3/60
Tonage 5 tons
12. Trane Model #BYC060E9MOAA
Ser #Y24143873D (1985)
Voltage 460/3/60
Tonage 5 tons
13. Trane BYC060F4LOAA
Ser# Y24143887D (1985)
Voltage 460/3/60
Tonage 5 tons
EXHIBIT "F"
-----------
HVAC SERVICE CONTRACT SPECIFICATIONS
------------------------------------
The following scope of work and specifications shall apply to all equipment
identified on the attached sheet marked Equipment List. If service contract is
executed by the tenant a copy must be sent to Brandywine Realty Trust's
Management Office.
Contractor shall provide the following:
1) Inspections shall be scheduled in advance by notifying the designated
Brandywine Realty Services Corporation (BRSC) Management Office (48) hours
prior to the inspection date.
2) A minimum of (4) schedules inspections per year shall occur as described
below.
a) Inspections for cooling units only shall occur based on the
following schedule:
- First inspection on or before March 15th.
- Second inspection on or before May 15th.
- Third inspection on or before July 15th.
- Fourth inspection on or after September 15th.
b) Inspections for cooling and heating units shall occur based on the
following schedule:
- First inspection on or before January 15th.
- Second inspection on or before April 15th.
- Third inspection on or before July 15th.
- Fourth inspection on or after October 15th.
3) Provide a written detailed description of services performed for each
inspection. A copy of this service report shall be provided to the
designated BRSC Management Office within (2) working days of when the
service was provided.
4) Provide and install pleated type air filters with an efficiency rating of
not less than equipment manufacture recommendations and as approved by
ASHRA standards based on the following schedule:
a) Units that operate (12) months per year shall receive (4) complete
changes based on the schedule outlined above in section 2)
sub-paragraph b).
b) Units that operate for cooling only shall receive (2) complete
changes on or before March 15th and on or before July 15th.
5) Provide and install drive belt(s) once per year. Inspections shall include
proper adjustments.
6) Condenser coils shall be cleaned once per year.
a) Air cooled condensers shall be cleaned of all debris by approved
method.
b) Water cooled condensers shall be cleaned by removing heads and brush
clean tubes.
c) Cooling towers shall be cleaned of all debris from within and flush;
clean strainer(s); inspect overflow, bleed and drain; inspect and
clean float/water level fill valve.
7) Condensate pans and drain lines shall be cleaned and flushed out once per
year.
8) Lubricate bearings for motors, fans and pumps in accordance with
manufacture recommendations but not less than twice per year.
9) Clean and lubricate all moving parts that would include dampers and
modulating devices once per year.
10) Comply with the requirements as set forth by any agency in the handling of
refrigerant that shall include but not be limited to the documentation,
recovery, recycling and disposal. Contractor shall provide the necessary
tools, equipment and transportation in complying with these requirements.
11) Seasonal start-up and shut-down for cooling and heating systems shall be
completed and the following services shall include but not be limited to:
a) Inspect all electrical connections, contractors, relays and
operating controls.
b) Inspect compressor oil level; test oil; megger motor; test
cranckcase heater; record all conditions.
c) Inspect for refrigerant leaks; record operating pressures and
conditions.
d) Inspect, clean and lubricate burner and combustion controls; check
burner sequence of operation and combustion equipment.
e) Appropriate freeze protection for all systems affected by weather.
12) All operating and safety controls shall be inspected and tested at least
once per year.
13) Recommend service, repair and or upgrades to appropriate BRSC Management
Office in writing with budget pricing.
14) Unscheduled service calls or repairs outside the scope of these
specifications shall require prior authorization from BRSC.
15) Emergency service calls shall have a response time of not more than (2)
hours.
16) All work shall be performed in accordance with all applicable codes,
regulations and laws.
17) Contractors employees or designates shall comply with building rules and
regulations.
18) Certificate of Insurance required on file with Brandywine Realty Trust's
Management Office.
EXHIBIT "G"
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PARKING DIAGRAM
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