Exhibit 10.3
AGREEMENT OF
LEASE
BETWEEN
GLENVIEW CORPORATE CENTER LIMITED PARTNERSHIP,
Landlord
AND
WORLDGAGE COMMUNICATIONS,
Tenant
TABLE OF CONTENTS
LEASE
Section Page
------- ----
1. REFERENCE DATA ......................................................... 1
2. DEMISE ................................................................. 3
3. TERM ................................................................... 3
4. HOLDING OVER ........................................................... 3
5. RENT ................................................................... 3
6. ESCALATION ............................................................. 4
7. COMPLETION OF IMPROVEMENTS; AS IS ...................................... 9
8. [INTENTIONALLY DELETED] ................................................ 9
9. ALTERATIONS OR IMPROVEMENTS BY TENANT .................................. 9
10. PERMITTED USES ......................................................... 10
11. BUILDING OPERATION AND SERVICES ........................................ 10
12. INTERRUPTION OF SERVICES ............................................... 11
13. REPAIRS ................................................................ 11
14. [INTENTIONALLY DELETED] ................................................ 12
15. QUIET ENJOYMENT ........................................................ 12
16. LANDLORD'S RIGHT OF ENTRY .............................................. 12
17. SURRENDER OF PREMISES .................................................. 12
18. MISCELLANEOUS COVENANTS ................................................ 13
19. RULES AND REGULATIONS .................................................. 13
20. PERFORMANCE OF TENANT'S COVENANTS ...................................... 14
21. EMINENT DOMAIN ......................................................... 14
22. CASUALTY DAMAGE ........................................................ 15
23. HOLD HARMLESS; PUBLIC LIABILITY INSURANCE; WAIVER OF SUBROGATION ....... 16
24. MORTGAGEE AND OTHER AGREEMENTS ......................................... 17
25. SUBORDINATION AND ATTORNMENT ........................................... 18
26. ASSIGNMENT AND SUBLETTING .............................................. 18
27. DEFAULT ................................................................ 19
28. LANDLORD'S REMEDIES .................................................... 20
29. LANDLORD'S COSTS AND EXPENSES .......................................... 24
30. LATE CHARGE ............................................................ 24
31. SUCCESSORS AND ASSIGNS ................................................. 24
32. WAIVERS ................................................................ 25
33. WAIVER OF TRIAL BY JURY ................................................ 25
34. SEVERABILITY ........................................................... 25
35. NOTICES ................................................................ 25
36. AMENDMENT AND MODIFICATIONS ............................................ 26
37. [INTENTIONALLY OMITTED] ................................................ 26
38. ENVIRONMENTAL MATTERS .................................................. 26
39. HEADINGS AND TERMS ..................................................... 27
40. GOVERNING LAW .......................................................... 27
41. TENANT'S TERMINATION RIGHTS ............................................ 00
XXXXXXXX XXXXXXXXX XXXXXX
Xxxxxxxx, Xxxxxxxxxxxx Lease Dated: November 26, 1997
1. REFERENCE DATA
Any reference in this Lease to the following subjects shall incorporate
therein the data stated for the subject(s) in this Section:
LANDLORD: Glenview Corporate Center Limited Partnership, a Delaware Limited
Partnership
LANDLORD'S ADDRESS: c/o Pitcairn Properties Incorporated
One Pitcairn Place
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
LANDLORD'S CONSTRUCTION REPRESENTATIVE: Xxxxxxxx Xxxxxxxxx
TENANT: Worldgate Communications
TENANT'S ADDRESS: 0000 Xxxxxxx Xxxxx, Xxxxxxxx, XX
TENANT'S CONSTRUCTION REPRESENTATIVE: N/A
LEASED PREMISES: A portion of 0000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxxx
RENTABLE AREA OF LEASED PREMISES: 6,066 Rentable Square Feet
LEASE TERM: Two (2) years, Three (3) months
SCHEDULED COMMENCEMENT DATE: December 1, 1997
COMMENCEMENT DATE: December 1, 1997
ANNUAL FIXED RENT: $97,056.00
OPERATING EXPENSE ALLOWANCE: 6.00 Per Rentable Square Foot
TENANT'S PROPORTIONATE SHARE: 6,066/29,157 20.80%
PERMITTED USES: General Office
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SECURITY DEPOSIT: -0-
CONSTRUCTION ALLOWANCE: N/A
GLENVIEW CORPORATE CENTER LIMITED
PARTNERSHIP
By: BPPI-I, L.P., its general partner
By: Bergen of Philadelphia, Inc.
general partner
By: /s/ Xxxxxxxxx X. Xxxxx
--------------------------------------------
By: Pitcairn Properties Incorporated, general partner
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------------------
TENANT:
WORLDGATE COMMUNICATIONS
By: /s/ [illegible]
--------------------------------------------------
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2. DEMISE. Landlord hereby demises and lets to Tenant and Tenant takes
and hires from Landlord that certain space (the "Leased Premises") delineated
in Exhibit "A", attached hereto and made part hereof, in the one (1) story
office building (the "Building") erected upon a parcel of ground located at
0000 Xxxxxxx Xxxxx, Xxxxxxxx Xxxxxxxx, Xxxxxxxxxxxx (the "Lot") TOGETHER
WITH, appurtenant to the Leased Premises, the right to use in common with
Landlord and other tenants, occupants and visitors to the Building, the
common walkways, sidewalks and parking lots of the Lot.
3. TERM. The Lease Term shall commence on the Commencement Date which
shall be the earlier of (A) the date on which Tenant shall take possession of
the Leased Premises, or (B) December 1, 1997 and shall continue for the period
of years set forth in Section 1 hereof, unless extended or sooner terminated
as provided herein.
When the Commencement Date and, consequently, the Lease Term have
been so determined, Landlord and Tenant shall confirm the Commencement Date
accordingly by an amendment to Section 1.
4. HOLDING OVER. If Tenant retains possession of the Leased Premises
or any part thereof after the termination of this Lease by expiration of the
Lease Term or otherwise, Tenant shall pay Landlord (A) as agreed liquidated
damages for such holding over alone, an amount, calculated on a per diem
basis for each day of such unlawful retention, equal to the greater of (i)
twice the Annual Fixed Rent, or (ii) the established market rental for the
Leased Premises, for the time Tenant thus remains in possession, plus, in
each case, all Additional Rent and other sums payable hereunder, and (B) all
other damages, costs and expenses sustained by Landlord by reason of Tenant's
holding over. Without limiting any rights and remedies of Landlord resulting
by reason of the wrongful holding over by Tenant, or creating any right in
Tenant to continue in possession of the Leased Premises, all Tenant's
obligations with respect to the use, occupancy and maintenance of the Leased
Premises shall continue during such period of unlawful retention.
5. RENT. Rent is payable by Tenant beginning on the Commencement Date
in monthly installments of one-twelfth (1/12th) of the Annual Fixed Rent,
without prior notice or demand, and without any set-off or deduction
whatsoever, in advance, on the first day of each month at Landlord's office
in Bensalem, Pennsylvania or at such other place as Landlord may direct,
except that the rent for the first full month of the Lease Term will be paid
on the date of the execution of this Lease.
In addition, if the Lease Term commences on a day other than the
first day of a calendar month, Tenant shall pay to Landlord, on or before the
Commencement Date of the Lease Term, a pro rata portion of the monthly
installment of rent (including Fixed Rent and any Additional Rent as herein
provided), such pro rata portion to be based on the number of days remaining
in such partial month after the Commencement Date of the Lease Term.
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Tenant hereby covenants and agrees to pay the Annual Fixed Rent,
Additional Rent and other sums payable to Landlord hereunder when due, and to
pay interest to landlord at the Overdue Interest Rate (A) on all overdue
installments of Fixed Rent from the due date thereof to the date of payment
and (B) on all payments of Additional Rent or other sums payable to Landlord
hereunder from the date of demand for payment until the date of payment. Upon
default by Tenant in the payment of such Additional Rent or other sums
payable hereunder, Landlord shall be entitled to all rights and remedies to
which it would be entitled in default of the payment of Fixed Rent. As used
herein, the term "Overdue Interest Rate" shall mean and equal three
percent (3%) per annum over the prime interest rate announced from time to
time by the largest commercial bank whose principal office is located on
Philadelphia or Xxxxxxxxxx County, Pennsylvania as being its prime interest
rate charged to its most credit-worth commercial customers on ninety (90)
days unsecured loans.
6. ESCALATION.
OPERATING EXPENSE. If Landlord's Operating Expense for any
Operating Year shall be greater than the Operating Expense Allowance, Tenant
shall pay to Landlord as Additional Rent an amount equal to Tenant's
Proportionate Share (as defined below) of the difference (the amount of
Tenant's Proportionate Share of such difference is hereinafter referred to as
the "Operating Expense Adjustment"). If Tenant occupies the Leased Premises or
portion thereof for less than full Operating Year, the Operating Expense
Adjustment will be allocated proportionally to the amount of time in such
Operating Year that Tenant so occupies such space.
Such additional Rent shall be paid in the following manner: within
one hundred twenty (120) days following the end of each Operating Year,
Landlord shall furnish Tenant an Operating Expense Statement setting forth
(i) the Operating Expense for the preceding Operating Year, (ii) the
Operating Expense Allowance and (iii) the Tenant's Operating Expense
Adjustment for such Operating Year. Within fifteen (15) days following the
receipt of such Operating Expense Statement (the "Expense Adjustment Date")
Tenant shall pay to Landlord as Additional Rent the Operating Expense
Adjustment for such Operating Year. Commencing with the first month of the
Lease Term, Tenant shall pay to Landlord, on account of the Operating Expense
Adjustment for such Operating Year, monthly installments in advance equal to
one-twelfth (1/12th) o the estimated Operating Expense Adjustment for such
Operating Year. ON the next succeeding Expense Adjustment Date, Tenant shall
pay to Landlord (or Landlord shall credit to Tenant) any deficiency (or
excess) between the installments paid on account of the preceding year's
Operating Expense Adjustment and the actual Operating Expense Adjustment for
such Operating Year.
As used in this Section 6 and Section 1 where applicable, the
following words and terms shall be defined as hereinafter set forth:
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(i) "OPERATING YEAR" shall mean each calendar year, or such other
period of twelve (12) months as hereafter may be adopted by Landlord as its
fiscal year, occurring during the Lease Term.
(ii) "OPERATING EXPENSE ALLOWANCE" shall mean and equal the amount
set forth in Section 1 of this Lease multiplied by the rentable area of the
Building.
(iii) "OPERATING EXPENSE STATEMENT" shall mean a statement in
writing signed by Landlord, setting forth in reasonable detail (a) the
Operating Expense for the preceding Operating Year, (b) the Operating Expense
Allowance and (c) the Tenant's Operating Expense Adjustment for such
Operating Year, or portion thereof. The Operating Expense for each Operating
Year shall be audited and certified by Landlord's independent certified
public accountant whose report thereon shall be available for inspection by
Tenant at Landlord's office during normal business hours. The Operating
Expense Statement shall constitute a final determination as between Landlord
and Tenant of the Operating Expense and the Operating Expense Adjustment for
any Operating Year.
(iv) "OPERATING EXPENSE" shall mean the following expenses
incurred by Landlord in connection with the operation, repair and maintenance
of the Building and the Lot:
(a) Wages, salaries, fees and other compensation and payments
and payroll taxes and contributions to any social security, unemployment
insurance, welfare, pension or similar fund and payments for other fringe
benefits required by law or by union agreement (or, if the employees or any
of them are non-union, then payments for benefits comparable to those
generally required by union agreement in first class office buildings in the
Philadelphia suburban area, which are unionized) made to or on behalf of all
employees of Landlord performing services rendered in connection with the
operation and maintenance of the Building and the Lot, including, without
limitation: window cleaners; janitors; miscellaneous handymen; watchmen;
persons engaged in patrolling and protecting the Building and the Lot;
carpenters; engineers; mechanics; electricians; plumbers; persons engaged in
the operation and maintenance of the Building and the Lot; building
superintendent and assistants; building manager; an clerical and
administrative personnel.
(b) The uniforms of all employees, and the cleaning, pressing
and repair thereof.
(c) Cleaning costs for the Building and the Lot, including
the windows and sidewalks, all snow and rubbish removal (including separate
contracts therefor) and the costs of all labor, supplies, equipment, and
materials incidental thereto.
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(d) Premiums and other charges incurred by Landlord with
respect to all insurance relating to the Building and the Lot and the
operation and maintenance thereof, including, without limitation: fire and
extended coverage insurance, including windstorm, hail, explosion, riot,
rioting attending a strike, civil commotion, aircraft, vehicle and smoke
insurance; public liability; elevator; workmens' compensation; boiler and
machinery; rent; use and occupancy; and health, accident and group life
insurance of all employes.
(e) All taxes, liens, charges, imposts and burdens and
special assessments of every kind and nature imposed by any governmental
authority on and/or with respect to the Lot or Building which Landlord shall
become obligated to pay because of or in connection with the ownership,
leasing or operation of the Lot or the Building.
(f) The cost of electricity used for site lighting and the
cost of water and sewer and any and all other utility services used in
connection with the operation and maintenance of the Building and the Lot.
(g) Costs incurred for operation, service, maintenance,
inspection, repairs and alterations of the Building, the Lot and the heating,
air-conditioning, ventilating, plumbing and electrical systems of the
Building (including any separate contract therefor) and the costs of labor,
materials, supplies and equipment used in connection with all of the
aforesaid items.
(h) Gross receipts taxes, sales taxes and excise taxes and
the like upon any of the expenses enumerated herein.
(i) Management fees of the managing agent for the Building.
(j) The cost of replacements for tools and equipment used in
the operation and maintenance of the building and the Lot.
(k)
(l) The cost of telephone service, postage, office supplies,
maintenance and repair of office equipment and similar costs related to
operation of the Building Superintendent's office.
(m) The cost of licenses, permits and similar fees and
charges related to operation, repair and maintenance of the Building.
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(n) Auditing fees necessarily incurred in connection with the
maintenance and operation of the Building, and accounting fees incurred in
connection with the preparation and certification of a real estate tax
escalation and the operating expense escalation statements pursuant to this
Section 6.
(o) All costs incurred by Landlord to retrofit any portion or
all of the Building to comply with a change in existing legislation or
introduction of new legislation, whether Federal, State or Municipal;
repairs, replacements and improvements which are appropriate for the
continued operation of the Building as a first class building.
(p) All expenses associated with the installation of any
energy or cost saving devices.
(q) All assessments against Landlord's pro rata share of the
costs of Glenview Corporate Center as provided in the Declaration of
Protective Covenants for Glenview Corporate Center.
(r) Any and all other expenditures of Landlord in connection
with the operation, repair or maintenance of the Lot or the Building which
are properly expensed in accordance with generally accepted accounting
principles consistently applied with respect to the operation, repair and
maintenance of first-class office buildings in the Philadelphia suburbs.
If Landlord shall purchase any item of capital equipment or make any
capital expenditure as described in subsections (o) and (p) above, then the
costs for the same shall be included in Operating Expenses in the year of
installation and in subsequent years amortized on a straight line basis, over
an appropriate period, but not more than ten (10) years, with an interest
factor equal to the prime interest rate, as defined in Section 5 hereof. If
Landlord shall lease such item of capital equipment, then the rentals or
other operating costs paid pursuant to such leasing shall be included in
Operating Expenses for each year in which they are incurred.
Notwithstanding the foregoing, "Operating Expense" shall not include
expenditures for any of the following:
(a) The cost of any capital addition made to the Building
(other than that specified as part of Operating Expense as provided above),
including the cost to prepare space for occupancy by a new tenant.
(b) Repairs or other work occasioned by fire, windstorm or
other insured casualty or hazard, to the extent that Landlord shall receive
proceeds of such insurance.
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(c) Leasing commissions, advertising expenses and other costs
incurred in leasing or procuring new tenants.
(d) Repairs or rebuilding necessitated by condemnation.
(e) Depreciation and amortization of the Building, other than
(I) capital expenditures which under generally applied
real estate practice are expensed or regarded as deferred expenses;
(II) capital expenditures appropriate to a first class
office building or required by law as described in subsection (o) above; and
(III) capital expenditures designed to result in savings
or reductions in Operating Expenses as described in subsection (p) above.
(f) The salaries and benefits of executive officers of
Landlord, if any.
Operating Expense shall be "net" and, for that purpose, shall be
reduced by the amounts of any reimbursement or credit received or receivable
by Landlord with respect to an item of cost that is included in Operating
Expense (other than reimbursements to Landlord by tenants of the Building
pursuant to Operating Expense escalation provisions).
To the extent that any item of Operating Expense is incurred in
common with another building or lot in the Glenview Corporate Center, such
item of expense shall be apportioned equitably among the properties incurring
such expenses.
If Landlord shall eliminate the payment of any wages or other labor
costs or otherwise reduce Operating Expense as a result of the installation
of new devices or equipment, or by any other means, then in computing the
Operating Expense the corresponding items shall be deducted from the
Operating Expense Allowance and Operating Years.
The Operating Expense for any Operating Year or portion thereof
during which less than one hundred percent (100%) of the Rentable Area of the
Building is leased to tenants shall be increased to include an imputed cost
for unoccupied portions of the Building in an amount with respect to each
such area equal to the product of (a) the Landlord's estimate of the marginal
Operating Expense saving resulting from such vacancy, times (b) a fraction,
the numerator of which is the number of days during such Operating Year such
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portion of the Building was unoccupied and the denominator of which is three
hundred sixty-five (365), times (c) the Rentable Area of such unoccupied
space. In the time that more than one such portion of Rentable Area shall be
unoccupied on separate dates within a relevant Operating Year, then a
separate computation shall be made with respect to each unoccupied portion,
and the products of such computations shall be added together, and the total
thereof shall be the amount of Operating Expense imputed to such unoccupied
portions for such Operating Year.
(v) "TENANT'S PROPORTIONATE SHARE" shall mean a fraction, the
numerator of which shall be the Rentable Area of Leased Premises, and the
denominator of which is 29,157 rentable square feet (subject to adjustment
only by reason of any substantial addition to the Building made after the
date of the initial completion of construction of the Building), and shall
equal, with respect to the Leased Premises, the percentage set forth in
Section 1 of this Lease.
7. COMPLETION OF IMPROVEMENTS; AS IS. Tenant agrees to accept the
Leased Premises in its "As-Is" condition. Landlord shall have no obligation
to complete any work in connection with Tenant's occupancy of the Leased
Premises with the exception of (i) building standard painting of the Leased
Premises, (ii) replacement of tiles in bathroom, where necessary, and (iii)
shampoo carpets, when necessary, which work shall be completed prior to the
Commencement Date. Any other work completed by Tenant shall be at Tenant's
sole cost and expense and otherwise in accordance with the terms of the Lease.
8. [INTENTIONALLY DELETED].
9. ALTERATIONS OR IMPROVEMENTS BY TENANT. Tenant shall not make during
the Lease Term any alterations or additions to the Leased Premises which
(affect the Building's structure or mechanical, electrical, plumbing or HVAC
systems without the prior written approval of Landlord and then only in
accordance with plans and specifications previously approved by Landlord
which approval shall not be unreasonably withheld). Any such alterations or
additions which may be approved by Landlord and made by Tenant shall be
deemed part of the Building and shall not thereafter be removed by Tenant
unless Landlord shall require removal of same, either in conjunction with its
approval or by notice to Tenant given prior to the termination of this Lease,
in which case Tenant shall remove any such alterations or additions and
repair any damage to the Building or the Leased Premises occasioned by their
installation or removal (including, without limitation, repairing and pathing
holes, replacing ceiling, wall and floor surfaces and repainting), and
restore the Leased Premises to substantially the same condition as existed
prior to the time which any such alterations or additions were made.
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All alterations and additions by Tenant and installation of
furnishings following occupancy shall be coordinated with any work being
performed by Landlord and performed in such manner and by such union
contractor(s) as to assure harmonious labor relations and so as to not damage
the Building or interfere with its operation or with the activities of other
tenants and, except for installation of furnishings only, by contractors or
workmen first approved by Landlord.
As further conditions to Landlord's approval of any proposed
alterations or additions by Tenant which are to be made after the beginning
of the Lease Term, Tenant shall: secure all necessary licenses and permits;
deliver to Landlord a waiver, executed by all persons or firms who will be
furnishing labor or materials waiving the right to file any mechanic's lien
against the Building, the Lot or the estate or interest of Landlord or Tenant
therein; cause the contractor(s) and subcontractor(s) to carry Workmen's
Compensation insurance in statutory amounts and also comprehensive public
liability insurance with limits as approved by Landlord, and deliver to
Landlord certificates of all such insurance.
Failure to comply with any of the provisions of this Section 9
(including, without limitation, any of the terms or conditions of any consent
granted hereunder) shall constitute a default under this Lease and upon such
default Landlord may pursue any or all of the remedies provided for in
Section 28 hereof, or any other remedy available to Landlord in law or in
equity.
Tenant shall promptly pay when due the cost of all such alterations
and additions as referred to in this Section 9 and shall cause any mechanics'
liens which may be filed with respect thereto to be immediately discharged,
and shall indemnify Landlord against any loss, cost or expense occasioned,
directly or indirectly as a result of such alterations and additions.
10. PERMITTED USES. Tenant covenants and agrees to use and occupy the
Leased Premises only in conformity with law and for the uses specified in
Section 1 hereof and not to use or permit any use of the Leased Premises
which creates any safety hazard, which would be dangerous to the Leased
Premises, the Building or the occupants of the same, which would be
disturbing to other tenants or occupants of the Building, or which would
cause any increased in premium for any insurance which landlord may then have
in effect with respect to the Building generally.
11. BUILDING OPERATION AND SERVICES. Landlord shall furnish, through
Landlord's employees or independent contractors, such services, facilities
and supplies equal in scope, quality and frequency to those being customarily
provided by landlords in one story office buildings in the Philadelphia
suburbs.
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During the construction of the Leased Premises, Landlord shall install
and provide thereafter for the duration of the Term a heat pump or other HVAC
system to provide heating, ventilating and air conditioning to the Leased
Premises. Such system shall service only the Leased Premises and Tenant shall
have the right to control the hours of operation thereof. Electricity for the
operation shall be routed through Tenant's electric meter.
Maintenance and cleaning shall be provided Monday through Friday
(excluding holidays), after business hours, as follows: janitor service,
consisting of the removal of customary office trash, dusting of furniture,
desks and pictures, and vacuuming; maintenance and service of the toilet
rooms in the Leased Premises.
Hot and cold water for normal lavatory purposes shall be provided. If
Tenant requires water for additional purposes, Tenant shall pay the cost
thereof as shown on a meter to be installed and maintained at Tenant's
expense to measure such additional consumption.
During the construction of the Leased Premises, Landlord shall connect
the electrical service in the Leased Premises to the electric public utility
serving the Building and Tenant shall be responsible to pay for such
electricity directly to such electric public utility.
Landlord shall furnish and install at Tenant's expense all replacement
lighting tubes, lamps, bulbs, and ballasts required in the Leased Premises.
12. INTERRUPTION OF SERVICES. In case Landlord is prevented or delayed in
furnishing any service as set forth in Section 11 herein or otherwise by
reason of any cause beyond Landlord's reasonable control, Landlord shall not
be liable to Tenant therefor nor shall Tenant be entitled to any abatement or
reduction in rent by reason thereof, nor shall the same give rise to a claim
in Tenant's favor that such absence of building services constitutes actual
or constructive, total or partial eviction or renders the Leased Premises
untenantable.
Landlord reserves the right to stop any service or utility system, when
necessary by reason of accident or emergency, or until necessary repairs have
been completed, provided, however, that in each instance of stoppage,
Landlord shall exercise reasonable diligence to eliminate the cause thereof.
Except in cash of emergency repairs, Landlord will give Tenant reasonable
advance notice of any contemplated stoppage and will use reasonable efforts
to avoid unnecessary inconvenience to Tenant by reason thereof.
13. REPAIRS. Landlord shall make, as an Operating Expense of the
Building, all repairs necessary to maintain the plumbing, heating,
ventilating, air conditioning, electric systems, external windows and floors
(excluding carpeting and floor coverings), provided, however, that Landlord
shall not be obligated to make any such repairs until the expiration of a
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reasonable period of time after receipt of written notice from Tenant that
such repair is needed. In no event shall Landlord be obligated under this
Section 13 to repair any damage caused by any act, omission or negligence of
Tenant or its employees, agents, invitees, licensees, subtenants, or
contractors. If Tenant requires maintenance, servicing, repair or replacement
of any special plumbing, heating or air conditioning systems installed for
Tenant's benefit in the Leased Premises, such maintenance, servicing, repair
or replacement shall be made at the sole expense of Tenant, unless the need
for such repairs is caused solely by the negligence or wilful misconduct of
Landlord, its agents or employees.
Tenant shall maintain the Leased Premises and the fixtures and
appurtenances therein in good repair at all times. Except to the extent
released by Landlord pursuant to the waiver of subrogation provision in
Section 23 hereof, Tenant shall reimburse Landlord for all costs and expenses
of repairing and replacing all damage or injury to the Leased Premises and
the Building and to fixtures and equipment caused by Tenant or its employees,
agents, invitees, licensees, subtenants, or contractors, or as the result of
all or any of them moving in or out of the Building or by installation or
removal of furniture, fixtures or other property. Such costs and expenses
shall be collectible as Additional Rent and paid by Tenant within fifteen
(15) days after rendition of a xxxx therefor.
Landlord shall not be liable by reason of any injury to or interference
with Tenant's business arising from the making of any repairs, alterations,
additions or improvements in or to the Leased Premises or the Building or to
any appurtenances or equipment therein. There shall be no abatement of rent
because of such repairs, alterations, additions or improvements or because of
any delay by Landlord in making the same.
Tenant shall give to Landlord prompt written notice of any accidents to,
or defects in plumbing, electrical, heating and air conditioning systems and
apparatus located in the Leased Premises.
14. [INTENTIONALLY DELETED].
15. QUIET ENJOYMENT. Tenant, upon paying the Annual Fixed Rent, all
Additional Rent and all other sums and charges herein provided for and, upon
observing, keeping and performing all covenants, agreements and conditions of
this Lease on Tenant's part to be observed, kept and performed, shall quietly
have and enjoy the Leased Premises throughout the Lease Term without
hindrance or molestation by Landlord or by anyone claiming by, through or
under Landlord, subject, however, to the exceptions, reservations and
conditions of this Lease.
16. LANDLORD'S RIGHT OF ENTRY. Landlord, any ground lessor, mortgagee or
any agent thereof, shall have the right to enter the Leased Premises at
reasonable times: to perform Landlord's covenants as set forth in this Lease,
for purposes of inspection and to insure Tenant's
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compliance with the provisions of this Lease, to make any repairs,
replacements or alterations to the Building or do any work which Landlord may
deem necessary, or to show the Leased Premises to prospective purchasers of
the Building, and also, during the last six (6) months of the Lease Term, to
show the Leased Premises to prospective tenants.
17. SURRENDER OF PREMISES. Any alterations, improvements or additions
to the Leased Premises made by or at the request of Tenant shall remain upon
the Leased Premises at the expiration or earlier termination of this Lease
and shall become the property of Landlord unless Landlord shall, prior to the
expiration or earlier termination of this Lease, give written notice to
Tenant to remove such alterations, improvements and additions. Tenant shall
repair any damage caused by the installation and/or removal (including,
without limitation, repairing and patching holes, replacing ceiling, floor
and wall surfaces and repainting), and restore the Leased Premises to
substantially the same condition in which it existed prior to the time that
any such alterations, improvements or additions were made. Should Tenant fail
to remove any such alterations, improvements or additions or to repair such
damage when required or requested by Landlord so to do pursuant to this
Section 17, Landlord may do so, and the cost and expense thereof shall be
paid by Tenant to Landlord as Additional Rent.
Any personal property which shall remain in the Leased Premises or any
part thereof after the expiration or earlier termination of this Lease shall
be deemed to have been abandoned and either may be retained by the Landlord
as Landlord's property or may be disposed of in such manner as Landlord may
see fit, provided that notwithstanding the foregoing Tenant shall, upon
request of Landlord made no later then ten (10) days after the expiration or
earlier termination of this Lease, promptly remove from the Building any such
personal property at Tenant's own cost and expense. Should Tenant fail so to
do, Landlord may do so, and the cost and expense thereof shall be paid by
Tenant to Landlord as Additional Rent. If such personal property or any part
thereof shall be sold by Landlord, Landlord may receive and retain the
proceeds of such sale(s) as Landlord's property. The covenants contained in
this Section 17 shall survive the expiration or earlier termination of this
Lease.
18. MISCELLANEOUS COVENANTS. Tenant shall faithfully perform all of
the covenants and conditions to be performed and observed by Tenant hereunder
and in addition to those covenants and conditions which are set forth
elsewhere herein, Tenant agrees:
A. To secure and maintain in effect any governmental approvals,
licenses and permits as may be required for Tenant's use and occupancy of the
Leased Premises.
B. To comply with all applicable laws, codes and regulations of
governmental authorities applicable to Tenan's use and occupancy of the
Leased Premises and all rules and regulations of insurers of the Leased
Premises and the National Board of Fire Underwriters as they apply to
Tenant's use and occupancy of the Leased Premises.
13
C. Not to use or place any curtains, blinds, drapes, coverings or
signs over any exterior windows or upon the window surfaces as would be
visible from the outside of the Building without the prior written approval
of Landlord.
19. RULES AND REGULATIONS. Tenant covenants and agrees that Tenant,
its servants, employees, agents, invitees, licensees and other visitors shall
observe faithfully, and comply strictly with, the Rules and Regulations
contained in Exhibit "B", attached hereto and made a part hereof, and such
other and further reasonable Rules and Regulations as Landlord or Landlord's
against may, after written notice to Tenant, from time to time adopt. Nothing
in this Lease contained shall be construed to impose upon Landlord any duty or
obligation to enforce the Rules and Regulations or terms, covenants or
conditions in any other lease as against any other Tenant, and Landlord shall
not be liable to Tenant for violation of the same by any other tenant, its
servants, employees, agents, invitees, licensees or other visitors.
20. PERFORMANCE OF TENANT'S COVENANTS. If Tenant fails to perform any
covenant or observe any condition to be performed or observed by Tenant
hereunder or acts in violation of any covenant or condition hereof, Landlord
may, but shall not be required to on behalf of Tenant, perform such covenant
and/or take such steps, including entering upon the Leased Premises, as may
be necessary or appropriate to meet the requirements of any such covenant or
condition, provided that the Landlord shall have given Tenant at least three
(3) days prior written notice of Landlord's intention to do so, unless an
emergency situation exists, in which case Landlord shall have the right to
proceed immediately; and all costs and expenses incurred by Landlord in so
doing, including reasonable legal fees, shall be paid by Tenant to Landlord
upon demand, plus interest at the Overdue Interest Rate from the date of
expenditure(s) by Landlord, as Additional Rent. Landlord's proceeding under
the rights reserved to Landlord under this Section shall not in any way
prejudice or waive any rights as Landlord might otherwise have against Tenant
by reason of Tenant's default.
21. EMINENT DOMAIN. In the event of the exercise of the power of
eminent domain whereby (A) such portion of the Building is taken that access
to the Leased Premises is permanently impaired thereby and reasonable
alternate access is not provided by Landlord within a time period which is
reasonable under the circumstances, (B) all or substantially all of the
Leased Premises or the Building is taken, (C) if less than substantially all
of the Building is taken but Landlord, acting in good faith, determines that
it is economically unfeasible to continue to operate the uncondemned portion
as a first-class office building, or (D) if less than substantially all of the
Leased Premises is taken, but Tenant, acting in good faith, determines that
because of such taking it is economically unfeasible to continue to conduct
its business in the uncondemned portion of the Leased Premises, then in the
case of (A) or (B), either party, and in the case of (C), Landlord, and in
the case of (D), Tenant, shall have the right to terminate this Lease as of
the date when possession of that part which was taken is required to be
delivered or surrendered to the condemning authority; and in such case all
rent and other charges shall be adjusted to the date of termination. The
foregoing right of termination shall
14
be applicable to the taking of any estate or interest whatsoever which, as a
matter of law, would deprive Landlord or Tenant of any right to possession
(in common with others, as to common areas of the Building) for any period in
excess of sixty (60) consecutive days from the date of taking, whether or not
the taking be in fee, for a term of years or of any other estate or interest;
and a taking shall include the transfer of title or of any interest in the
Building by deed or other instrument in settlement of or in lieu of transfer
by operation of law incident to condemnation proceedings.
Tenant shall have no right to participate or share in any
condemnation claim, damage award or settlement in lieu thereof with respect
to any taking of any nature; provided, however, that Tenant shall not be
precluded from claiming or receiving payment for Tenant's relocation and
moving expenses as may be permitted under applicable law so long as the
amount of the same is not subtracted from the award which Landlord is
entitled to receive.
22. CASUALTY DAMAGE. In the event of damage to or destruction of the
Leased Premises caused by fire or other casualty, or of the entrances and
other common facilities necessary to provide normal access to the Leased
Premises, or to other portions of the Building or its equipment which
portions and equipment are necessary to provide services to the Leased
Premises in accordance herewith, Landlord shall undertake to make repairs and
restorations as hereafter provided, unless this Lease be terminated by
Landlord or Tenant or unless any mortgagee which is entitled to receive
casualty insurance proceeds fails to make available to Landlord a sufficient
amount of such proceeds to cover the cost of such repairs and restoration.
If (A) the damage is of such nature or extent, in Landlord's sole
judgment, that more than one hundred and eighty (180) consecutive days, after
commencement of the work, would be required (with normal work crews and
hours) to repay and restore the part of the Leased Premises or the Building
which has been damaged, or (B) a substantial portion of the Leased Premises
or the Building is so damaged that, in Landlord's sole judgment, it is
uneconomic to restore or repair the Leased Premises or the Building, as
the case may be, or (C) less than two (2) years remain on the Lease Term,
Landlord shall so advise Tenant promptly, and either party, in the case
described in clause (A) above, or Landlord, in the case described in clauses
(B) or (C) above, for a period of ten (10) days thereafter, shall have the
right to terminate this Lease by written notice to the other, as of the date
specified in such notice, which termination date shall be no later than
thirty (30) days after the date of such notice. In the event of such fire or
other casualty, if this Lease is not terminated pursuant to the terms of this
Section 22, if sufficient casualty insurance proceeds are available for use
for such restoration or repair, and if this Lease is then in full force and
effect, Landlord shall proceed diligently to restore the Leased Premises to
substantially its condition prior to the occurrence of the damage, provided
that Landlord shall not be obligated to repair or restore any alterations,
additions or fixtures which Tenant may have installed (whether or not Tenant
has the right or the obligation to remove the same or is required to
15
leave the same on the Leased Premises as of the expiration or earlier
termination of this Lease) unless Tenant, in a manner satisfactory to
Landlord, assures payment in full of all cost as may be incurred by Landlord
in connection therewith. Landlord shall not insure any improvements or
alterations to the Leased Premises in excess of Building Standard tenant
improvements, or any fixtures, equipment or other property of Tenant. Tenant
shall have the right, at its sole expense, to insure the value of its
leasehold improvements, fixtures, equipment or other property located in the
Leased Premises, for the purpose of providing funds to Landlord to repair and
restore the Leased Premises to substantially its condition prior to the
occurrence of the damage. If there be any such alteration, fixtures or
additions and Tenant does not assure or agree to assure payment of the cost
of restoration or repair as aforesaid, Landlord shall have the right to
determine the manner in which the Leased Premises shall be restored so as to
be substantially as the Leased Premises existed prior to the damage
occurring, as if such alterations, additions or fixtures had not then been
made or installed. The validity and effect of this Lease shall not be
impaired in any way by the failure of Landlord to complete repairs and
restoration of the Leased Premises or of the Building within one hundred
eighty (180) consecutive days after commencement of work, even if Landlord
had in good faith notified Tenant that the repair and restoration could be
completed within such period, provided that Landlord proceeds diligently with
such repair and restoration.
In the case of damage to the Leased Premises not caused by the
negligence or other tortious acts of Tenant which is of a nature or extent
that Tenant's continued occupancy is substantially impaired, the Annual Fixed
Rent otherwise payable by Tenant hereunder shall be equitably abated or
adjusted for the duration of such impairment. Anything to the contrary in
this Lease notwithstanding, expressed or implied, Landlord shall have no
liability to Tenant for and shall have no duty to repair, replace or restore
any damage whatsoever, occurring as a result of leakage or seepage of water
or any other liquid from any source whatsoever, or breakage of any pipes,
mains or other plumbing located in or about the Building, or snow, frost,
steam, excessive heat or cold, falling plaster, sewage, gas, odors, noise, or
by air conditioning or heating apparatus. Provided, however, Landlord shall
repair, replace and restore as an Operating Expense of the Building, all
damage to the Building structure, systems and fixtures. Tenant shall be
responsible to insure and/or repair all of Tenant's leasehold improvements
and all equipment, fixtures and personal property located in the Leased
Premises.
23. HOLD HARMLESS; PUBLIC LIABILITY INSURANCE; WAIVE OF SUBROGATION.
Tenant covenants and agrees to exonerate, indemnify, defend, protect and save
Landlord, owner of the Lot and Landlord's managing agent, if any, harmless
from and against any and all claims, demands, expenses, losses, suits and
damages as may be occasioned by reason of (A) any accident or matter
occurring on the Leased Premises, causing injury to persons or damage to
property (including, without limitation, the Leased Premises), unless such
accident or other matter resulted from the negligence or otherwise tortious
act of Landlord or Landlord's agents or employees, (B) the failure of Tenant
to fully and faithfully perform the
16
obligations and observe the conditions of this Lease, or (C) the negligence
or otherwise tortious act of Tenant or anyone in or about the Building on
behalf or at the invitation or right of Tenant.
Tenant shall keep in force at its own expense comprehensive general
liability insurance (including a contractual liability insurance endorsement)
in companies acceptable to Landlord sufficient to cover such indemnification
and naming as insured Landlord, owner of the Lot, Landlord's managing agent,
if any, and Tenant against claims for personal injury" including bodily
injury, death or property damage in amounts not less than $1,000,000 (or such
higher limits as may be determined by Landlord), and Tenant will further
deposit the policy or policies of such insurance, or certificates thereof,
with Landlord. Said policy or policies of insurance or certificates thereof
shall have attached thereto endorsement that such policy shall not be
cancelled without at least ten (10) days prior written notice to Landlord and
Landlord's managing agent, if any, and that no act or omission of Tenant
shall invalidate the interest of Landlord under said insurance.
Landlord and Tenant hereby release the other from any and all
liability or responsibility to the other or anyone claiming through or under
them by way of subrogation or otherwise for any loss or damage to property
covered by any insurance then in force, even if such fire or other casualty
shall have been caused by the fault or negligence of the other party, or
anyone for whom such party may be responsible, provided, however, that this
release shall be applicable and in force and effect only to the extent of and
with respect to any loss or damage occurring during such time as the policy
or policies of insurance covering said loss shall contain a clause or
endorsement to the effect that this release shall not adversely affect or
impair said insurance or prejudice the right of the insured to recover
thereunder.
24. MORTGAGEE AND OTHER AGREEMENTS. In the event any person, firm,
corporation or other entity who is a party to any instrument to which this
Lease is subject or subordinate (including, without limitation, any mortgage
now or hereafter placed upon the Building or Lot or on any interest created
therein) or their successor(s), succeeds thereunder to the interest of
Landlord hereunder in the Building or the Lot, or acquires the right to
possession of the Building or the Lot, such person, firm, corporation or
other entity shall not be (A) liable for any act or omission of the party
named above as Landlord under this Lease; (B) liable for the performance of
Landlord's covenants hereunder which arise and accrue prior to such person,
firm, corporation or other entity succeeding to the interest of Landlord
hereunder or acquiring such right to possession; (C) subject to any offsets
or defenses which Tenant may have at any time against Landlord; (D) bound by
any rent which tenant may have paid previously for more than one (1) month in
advance; and (E) shall not be bound by any amendment or modification hereof
relating to the reduction of rent, shortening of term, or effecting a
cancellation or surrender hereof and made without the consent of such person,
firm, corporation nor other entity.
17
Tenant agrees, from time to time as may be requested by Landlord, to
execute, acknowledge and deliver to Landlord all or any of the following: an
estoppel letter certifying to such party as Landlord reasonably may
designate, including any mortgagee, that this Lease is in full force and
effect and has not been amended, modified or superseded, that Landlord has
satisfactorily completed all construction work required by this Lease
(subject to completion of punch-list items), that Tenant has accepted the
Leased Premises and is not in possession thereof, that Tenant has no defense,
offsets or counterclaims hereunder or otherwise against Landlord with respect
to this Lease or the Leased Premises and Landlord is not in default hereunder
(or if any of the foregoing not be the case, specifying in reasonable detail
the extent and nature thereof), that Tenant has no knowledge of any pledge or
assignment of this Lease or rentals hereunder, that rent is accruing under
this Lease but has not been paid more than one (1) month in advance and the
date to which rent has been paid; and any other instrument as may be
reasonably requested to be executed by Tenant by any mortgagee of the Lot or
the Building or any interest therein, so long as the rights of Tenant as
provided for by this Lease are not materially affected by any such other
instrument. Tenant's estoppel letter shall be in the form of Exhibit "D"
attached hereto and made a part hereof, or in such other form as Landlord or
its mortgagee shall hereafter proscribe.
25. SUBORDINATION AND ATTORNMENT. This Lease and the estate, interest and
rights hereby created are subordinate to any mortgage now or hereafter placed
upon the Lot, the Building or any estate or interest therein, including,
without limitation, any mortgage on any leasehold estate, and to all
renewals, modifications, consolidations, replacements and extensions of the
same as well as any substitutions therefor. Tenant agrees that in the event
any person, firm, corporation or other entity acquires the right to
possession of the Lot and the Building including any mortgagee or holder of
any estate or interest having priority over this Lease, Tenant shall, if
requested by such person, firm, corporation or other entity, attorn to and
become the tenant of such person, firm, corporation or other entity, upon the
same terms and conditions as are set forth herein for the balance of the
Lease Term. 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.
Tenant, if requested by Landlord, shall execute any such instruments in
recordable form as may be reasonably required by Landlord in order to confirm
or effect the subordination of this Lease and the attornment of Tenant to
future landlords in accordance with the terms of this Section.
26. ASSIGNMENT AND SUBLETTING. Tenant shall not assign, pledge, mortgage
or otherwise transfer or encumber this Lease, nor sublet all or any part of
the Leased Premises or permit the same to be occupied or used by anyone other
than Tenant or its employees
18
without Landlord's prior written consent, which consent shall not be
unreasonably withheld or delayed. It will not be unreasonable for Landlord to
withhold its consent if the reputation, financial responsibility, or business
of a proposed assignee or subtenant is unsatisfactory to Landlord, or if
Landlord deems such business to not be consonant with that of other tenants
in the Building, or if the intended use by the proposed assignee or subtenant
conflicts with any commitment made by Landlord to any other tenant in the
Building, or if the proposed rental rate is lower than the then current rate
at which similar space in the Building is being offered by Landlord, or if
the proposed subletting is to a prospective subtenant for less than fifty
percent (50%) of the Leased Premises. Notwithstanding the foregoing, Tenant
may assign or sublet the Leased Premises without Landlord's consent to a
corporation which is a parent or subsidiary of Tenant or is affiliated with
Tenant in a common group of corporations provided no such assignment or
subletting shall relieve Tenant of its obligations and liabilities hereunder.
Tenant's request for consent shall be in writing and contain the name,
address, and description of the business of the proposed assignee or
subtenant, its most recent financial statement and the other evidence of
financial responsibility, its intended use of the Leased Premises, and the
terms and conditions of the proposed assignment or subletting.
Within thirty (30) days from receipt of such request, Landlord shall
either: (A) grant or refuse consent; or (B) elect to require tenant
(i) to execute an assignment of lease or sublease of Tenant's interest
hereunder to Landlord or its designee upon the same terms and conditions as
are contained herein, together with an assignment of Tenant's interest as
sublessor in any such proposed sublease, or (ii) if the request is for
consent to a proposed assignment of this Lease, to terminate this Lease and
the term hereof effective as of the last day of the third month following the
month in which the request was received.
Each assignee hereunder shall assume and be deemed to have assumed this
Lease and shall be and remain liable jointly and severally with Tenant for
all payments and for the due performance of all terms, covenants, conditions
and provisions herein contained on Tenant's part to be observed and
performed. No assignment shall be binding upon Landlord unless the assignee
shall deliver to Landlord an instrument in recordable form containing a
covenant of assumption by the assignee, but the failure or refusal of
assignee to execute the same shall not release assignee from its liability as
set forth herein.
All the foregoing notwithstanding, Tenant shall not enter into any
lease, sublease, license, concession or other agreement for the use,
occupancy or utilization of the Leased Premises or any portion thereof, which
provides for a rental or other payment for such use, occupancy or utilization
based in whole or in part on the income or profits derived by any person from
the property leased, used, occupied or utilized (other than an amount based
on a fixed percentage or percentages of receipts or sales). Any such
purported lease, sublease,
19
license, concession or other agreement shall be absolutely void and
ineffective as a conveyance or any right or interest in the possession, use
or occupancy of any part of the Leased Premises.
Any consent by Landlord hereunder shall not constitute a waiver of
strict future compliance by Tenant of the provisions of this Section 26 or a
release of Tenant from the full performance by Tenant of any of the terms,
covenants, provisions, or conditions in this Lease contained.
27. DEFAULT. Any other provisions in the Lease notwithstanding, it
shall be an Event of Default under this Lease if (A) Tenant fails to pay any
installment of Fixed Rent, Additional Rent or other sum payable by Tenant
hereunder when due and such failure continues for a period of ten (10) days
after written notice given by or on behalf of Landlord to Tenant, provided,
however, Landlord need not give any such written notice, and Tenant shall not
be entitled to any such period of grace, more than twice in any twelve (12)
month period, (B) Tenant vacates the Leased Premises or uses or occupies the
Leased Premises otherwise than as permitted by Sections 1 and 10 hereof, or
assigns or sublets, or purports to assign to sublet, the Leased Premises or
any part thereof otherwise than in the manner and upon the conditions set
forth in Section 26 hereof, (C) Tenant fails to observe or perform any other
covenant or agreement of Tenant herein contained and such failure continues
after written notice given by or on behalf of Landlord to Tenant for more
than fifteen (15) days and such additional time, if any, as is reasonably
necessary to cure such failure, provided Tenant commences to cure such
failure within such fifteen (15) day period and diligently thereafter
prosecutes such cure to completion, (D) without Landlord's prior written
consent, Tenant removes or attempts to remove or manifests an intention to
remove any or all of Tenant's property from the Leased Premises otherwise
than in the ordinary and usual course of business, (E) Tenant makes any
assignment for the benefit of creditors; Tenant commits an act of bankruptcy
or files a petition or commences any proceeding under any bankruptcy or
insolvency law; a petition is filed or any proceeding is commenced against
Tenant under any bankruptcy or insolvency law and such petition or proceeding
is not dismissed within thirty (30) days; Tenant is adjudicated a bankrupt;
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 bankruptcy or insolvency law; 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; any attachment or execution against a
substantial part of Tenant's assets or of Tenant's interest in this Lease
remains unstayed or undismissed for a period of more than ten (10) days; 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, or (F) any of the
foregoing occur as to any guarantor or surety of Tenant's performance under
this Lease, or such guarantor or surety defaults on any provision under its
guaranty or suretyship agreement.
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28. LANDLORD'S REMEDIES.
A. If an Event of Default hereunder shall have happened and be
continuing, Landlord may, at its option:
(i) declare due and payable and xxx for and recover, all unpaid
Fixed Rent for the unexpired period of the Lease Term (and also all
Additional Rent as the amount(s) of same can be determined or reasonably
estimated) as if by the terms of this Lease the same were payable in
advance, together will all legal fees and other expenses incurred by
Landlord in connection with the enforcement of any of Landlord's rights and
remedies hereunder, and/or
(ii) distrain, collect or bring action for such Fixed Rent and
Additional Rent as being rent in arrears, or may enter judgment therefor in
an amicable action as herein elsewhere provided for in case of rent in
arrears, or may file a Proof of Claim in any bankruptcy or insolvency
proceeding for such Fixed Rent and Additional Rent, or institute any other
proceedings, whether similar or dissimilar to the foregoing, to enforce
payment thereof, and/or
(iii) terminate the Lease Term by giving written notice thereof
to Tenant and, upon the giving of such notice, the Lease Term and the estate
hereby granted shall expire and terminate with the same force and effect as
though the date of such notice was the date hereinbefore fixed for the
expiration of the Lease Term, and all rights of Tenant hereunder shall expire
and terminate, but Tenant shall remain liable as hereinafter provided, and/or
(iv) exercise any other rights and remedies available to
Landlord at law or in equity.
B. If any Event of Default shall have happened and be continuing,
Landlord may, whether or not the Lease Term has been terminated as herein
provided, re-enter and repossess the Leased Premises or any part thereof by
force, summary proceedings, ejectment or otherwise and Landlord shall have
the right to remove all persons and property therefrom. Landlord shall be
under no liability for or by reason of any such entry, repossession or
removal; and no such re-entry or taking of possession of the Leased Premises
by Landlord shall be construed as an election on Landlord's part to terminate
the Lease Term unless a written notice of such intention be given to Tenant
pursuant to Section 28(A)(iii) or unless the termination of this Lease be
decreed by a court of competent jurisdiction.
C. At any time or from time to time after the repossession of the
Leased Premises or any part thereof pursuant to Section 28(B), whether or not
the Lease Term shall have been terminated pursuant to Section 28(A)(iii),
Landlord may (but shall be under no
21
obligation to) relet all or any part of the Leased Premises for the account
of Tenant for such term or terms (which may be greater or less than the
period which would otherwise have constituted the balance of the Lease Term)
and on such conditions (which may include concessions or free rent) and for
such uses as Landlord, in its absolute discretion, may determine, and
Landlord may collect and receive any rents payable by reason of such
reletting. Landlord shall not be required to accept any tenant offered by
Tenant or observe any instruction given by Tenant about such reletting, or do
any act or exercise any care or diligence with respect to such reletting or
to the mitigation of damages. For the purpose of such reletting, Landlord may
decorate or make repairs, changes, alterations or additions in or to the
Leased Premises or any part thereof to the extent deemed by Landlord
desirable or convenient, and the cost of such decoration, repairs, changes,
alterations or additions shall be charged to and be payable by Tenant as
Additional Rent hereunder, as well as any reasonable brokerage and legal fees
expended by Landlord.
D. No expiration or termination of the Lease Term pursuant to
Section 28(A)(iii), by operation of law or otherwise, and no repossession of
the Leased Premises or any part thereof pursuant to Section 28(B), or
otherwise, and no reletting of the Leased Premises or any part thereof
pursuant to Section 28(C) shall relieve Tenant of its liabilities and
obligations hereunder, all of which shall survive such expiration,
termination, repossession or reletting.
E. In the event of any expiration or termination of this Lease or
repossession of the Leased Premises or any part thereof by reason of an
occurrence of an Event of Default, and Landlord has not elected to accelerate
rent pursuant to Section 28(A)(i), Tenant shall pay to Landlord the Fixed
Rent, Additional Rent and other sums required to be paid by Tenant to and
including the date of such expiration, termination or repossession; and,
thereafter, Tenant shall, until the end of what would have been the
expiration of the Lease Term in the absence of such expiration, termination
or repossession, and whether or not the Leased Premises or any part thereof
shall have been relet, be liable to Landlord for, and shall pay to Landlord,
as liquidated and agreed current damages, the Fixed Rent, Additional Rent and
other sums which would be payable under this Lease by Tenant in the absence
of such expiration, termination or repossesssion, less the net proceeds, if
any, of any reletting effected for the account of Tenant pursuant to Section
28(C), after deducting from such proceeds all of Landlord's reasonable
expenses in connection with such reletting (including, without limitation,
all related repossession costs, brokerage commissions, legal expenses,
attorneys' fees, employees' expenses, alteration costs and expenses of
preparation for such reletting). Tenant shall pay such current damages on the
days on which the Fixed Rent would have been payable under this Lease in the
absence of such expiration, termination or repossession, and Landlord shall
be entitled to recover the same from Tenant on each such day.
F. At any time after such expiration or termination of this Lease or
repossession of the Leased Premises or any part thereof by reason of the
occurrence of an
22
Event of Default, whether or not Landlord shall have collected any current
damages pursuant to Section 28(E), Landlord shall be entitled to recover from
Tenant, and Tenant shall pay to Landlord on demand, unless Tenant has paid
the whole of accelerated rent pursuant to Section 28(A)(i), as and for
liquidated and agreed final damages for Tenant's default and in lieu of all
current damages beyond the date of such demand (it being agreed that it would
be impracticable or extremely difficult to fix the actual damages), an amount
equal to the excess, if any, of (i) Fixed Rent, Additional Rent and other
sums which would be payable under this Lease for the remainder of the Lease
Term from the date of such demand (or, if it be earlier, the date to which
Tenant shall have satisfied in full its obligations under Section 28(E) to
pay current damages) for what would have been the then unexpired term of this
Lease in the absence of such expiration, termination or repossession,
discounted at the rate of six percent (6%) per annum, over (ii) the then
fair rental value of the Leased Premises for the same period, discounted at a
like rate. If any statute or rule of law shall validly limit the amount of
such liquidated final damages to less than the amount above agreed upon,
Landlord shall be entitled to the maximum amount allowable under such
statute or rule of law.
G. Tenant, in consideration for the execution of this lease by
landlord and for the covenants and agreements on the part of landlord herein
contained, and fully comprehending the relinquishment of certain rights
including rights of pre-judgment notice and hearing, hereby expressly
authorizes any attorney of any court of record to accept service of process
for, to appear for, and to confess judgment against tenant (i) in any and all
actions brought hereunder by landlord against tenant to recover possession
from time to time of the leased premises (and tenant agrees that upon the
entry of each judgment for said possession a writ of possession or other
appropriate process may issue forthwith), and/or (ii) to enforce payment from
time to time of the sums or any part thereof owing hereunder by tenant.
H. Tenant further hereby expressly authorizes and empowers (which
power is coupled with an interest) landlord, upon the occurrence of an event
of default and so long as the same is continuing, to enter upon the leased
premises, distrain upon and remove therefrom all inventory, equipment,
machinery, trade fixtures, and personal property of whatsoever kind or
nature, whether owned by tenant or others, and to proceed, without judicial
decree, writ of execution or assistance of constables, to conduct a private
sale, by auction or sealed bid, of such personal property, at which sale
landlord may bid without restriction. Tenant hereby waives the benefit of all
laws, whether now in force or hereafter enacted, exempting any personal
property on the leased premises from sale or levy, whether execution thereon
is had by order of any court or through private sale as herein authorized.
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I. In any action for ejectment, for rent in arrears or for
distraint, landlord shall first cause to be filed in such action an
affidavit made by it or someone acting for it setting forth the facts
necessary to authorize the entry of judgment, of which facts such affidavit
shall be conclusive evidence, and if a true copy of this lease be filed in
such action, it shall not be necessary to file the original as a warrant of
attorney, any rule of court, custom or practice to the contrary
notwithstanding. The authority to confess judgment against tenant hereunder
shall not be exhausted by one (1) exercise thereof, but judgment may be
confessed as provided herein from time to time as often as any event of
default occurs under this lease, and such authority may be exercised as well
after the expiration of the lease term and/or during or after the expiration
of any extended or renewal term.
J. No right or remedy herein conferred upon or reserved to Landlord
is intended to be exclusive of any other right or remedy herein by law provided,
but each shall be cumulative and in addition to every right or remedy given
herein or now or hereafter existing at law or in equity or by statute.
K. No waiver by Landlord of any breach by Tenant of any of Tenant's
obligations, agreements or covenants herein shall be a waiver of any
subsequent breach or of any obligation, agreement or covenant, nor shall any
forbearance by Landlord to seek a remedy for any breach by Tenant be a
waiver by Landlord or any rights and remedies with respect to such or any
subsequent breach.
L. In the event of a breach or threatened breach by Tenant of any
of the covenants or provisions hereof, Landlord shall have the right of
injunction and right to invoke any remedy allowed at law or in equity as if
re-entry summary proceedings and other remedies were not herein provided for.
M. 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 obtaining
possession of the Leased Premises, by reason of the violation by Tenant of
any of the covenants and conditions of this Lease, or otherwise.
29. LEGAL FEES AND OTHER COSTS. The prevailing party in any
enforcement proceeding shall be entitled to reimbursement of all reasonable
legal fees and expenses by the non-prevailing party.
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30. LATE CHARGE. If any installment of Fixed Rent, Additional Rent or
other sums payable by Tenant to Landlord under this Lease shall not be paid
on the due date thereof, Tenant shall pay to Landlord a "late charge" of 5%
of the amount so due for the purpose of defraying the expense incident to
handling such delinquent payment.
31. SUCCESSORS AND ASSIGNS. The obligations of this Lease shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that Landlord and each successive
owner of the Building and/or the Lot shall be liable only for obligations
accruing during the period of its ownership or interest in the Building or
the Lot; and from and after the transfer by Landlord or such successive owner
of its ownership or other interest in the Building or the Lot, Tenant shall
look solely to the successors in title for the performance of Landlord's
obligations hereunder. The liability of Landlord or any successive owner of
the Building and/or the Lot hereunder and all of its officers, employees,
shareholders or joint venturers or partners, if any, whether general or
limited, shall be limited to Landlord's estate or other title or interest in
the Building and/or the Lot.
32. WAIVERS. No delay or forbearance by Landlord in exercising any
right or remedy hereunder or in 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.
33. WAIVER OF TRIAL BY JURY. It is mutually agreed by and between
Landlord and Tenant that the respective parties hereto shall and they hereby
do waive trial by jury in any action, proceeding or counterclaim brought by
either of the parties hereto against the other on any matter whatsoever
arising out of or in any way connected with this Lease, the relationship of
Landlord and Tenant, Tenant's use of or occupancy of the Leased Premises
and/or any claim of injury or damage and any emergency statutory or any other
statutory remedy. It is further mutually agreed that in the event Landlord
commences any summary proceeding for non-payment of rent, Tenant will not
interpose any counterclaim of whatever nature or description in any such
proceeding.
34. SEVERABILITY. Each covenant and agreement in this Lease shall for
all purposes by construed to be a separate and independent covenant or
agreement. If any provision in this Lease or the application thereof shall to
any extent be invalid, illegal or otherwise unenforceable, the remainder of
this Lease, and the application of such provision other than as invalid,
illegal or unenforceable, shall not be affected thereby; and such provisions
in this lease shall be valid and enforceable to the fullest extent permitted
by law.
35. NOTICES. All notices or other communications required or permitted
hereby shall be effective only if the same are in writing and are signed by
the party giving the
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notice or by an agent or other person authorized in writing to so act on
behalf of such party. Notices to Tenant may be given by the leaving of the
same at the Leased Premises during business hours or by registered or
certified mail, return receipt requested, addressed to Tenant at the address
set forth in Section 1 hereto; and notices to Landlord shall be given by
registered or certified mail, return receipt requested to the address set
forth in Section 1 hereof. All notices shall be deemed given unless otherwise
specified herein, on the date when same are delivered, if delivered, or on
the date when the same are deposited in the mail.
36. AMENDMENT AND MODIFICATIONS. This Lease contains the entire
agreement between the parties hereto, and shall not be amended, modified or
supplemented unless by agreement in writing signed by both Landlord and
Tenant and the same shall not be valid unless approved in writing by all
mortgagees and holders of any estate or interest in the Building or the Lot
by virtue of leases or other instruments expressly referred to herein or
which are then of record.
37. [INTENTIONALLY OMITTED].
38. ENVIRONMENTAL MATTERS.
A. Tenant shall promptly deliver to Landlord copies of any of the
following documents that Tenant receives or prepares:
(i) applications or other materials regarding the Lot,
Building, or Leased Premises submitted to any governmental agency in
compliance with Environmental Statutes;
(ii) any notifications regarding the Lot, Building, or Leased
Premises submitted to any person pursuant to Environmental Statutes;
(iii) any permit, license, approval, amendment or modification
thereto granted regarding the Lot, Building, or Leased Premises pursuant to
Environmental Statutes;
(iv) any record or manifest required to be maintained
regarding the Lot, Building, or Leased Premises pursuant to Environmental
Statutes; and
(v) any correspondence, notice of violation, summons, order,
complaint or other document received by Tenant or its lessees, sublessees or
assigns (if permitted), pertaining to the Lot, Building, or Leased Premises
and to compliance with any Environmental Statutes.
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"Environmental Statutes" shall mean all statutes, ordinances,
regulations, orders and requirements of common law regulating environmental
matters concerning (a) activities at the Lot, Building or Leased Premises,
(b) repairs or construction of any improvements located on the Lot, (c)
handling of any materials, (d) discharges to the air, soil, surface water or
ground water, and (e) storage, treatment or disposal of any waste at or
connected with any activity at the Lot, Building or Leased Premises.
B. In the event that Landlord or Landlord's mortgagee performs or
causes to perform an investigation of the Lot or Building of any of the below
described matters, Tenant shall cooperate with Landlord or Landlord's
mortgagee with respect to such investigation.
(i) compliance at the Lot, Building, or Leased Premises with
Environmental Statutes;
(ii) the presence of hazardous substances or contamination at
the Lot, Building, or Leased Premises;
(iii) the presence at the Lot, Building, or Leased Premises of
polychlorinated biphenyls, substances containing polychlorinated biphenyls,
asbestos, materials containing asbestos, or unreaformaldehyde foam insulation;
(iv) the presence at the Lot of (a) a wetland or other "water
of the United States" for the purposes of Section 404 of the federal Clean
Water Act, 33 U.S.C. Section 1344, or any similar area regulated under any
state law, (b) a flood plain or other flood hazard area as defined pursuant
to the Pennsylvania Flood Plain Management Act, Pa. Stat. tit. 32, Sections
679.101 to .601 (Xxxxxx Sup. 1989), (c) a portion of the coastal zone for
purposes of the federal Coastal Zone Management Act, 16 U.S.C. Sections
1451-1464, or (d) any other area development of which is specifically
restricted under applicable law by reason of its physical characteristics or
prior use;
(v) the presence at the Lot, Building, or Leased Premises of
radon-products; or
(vi) the presence at the Lot, Building, or Leased Premises of
tanks presently or formerly used for the storage of any liquid or gas above
or below ground.
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39. HEADINGS AND TERMS. The title, headings and table of contents of
this Lease are for convenience of reference only and shall not in any way be
utilized to construe or interpret the agreement of the parties as otherwise
set forth herein. The term "Landlord" and the terms "Tenant" as used herein
shall means, where appropriate, all persons acting by or on behalf of the
respective parties, except as to any required approvals, consents or
amendments, modifications or supplements hereunder when such terms shall only
mean the parties originally named on the first page of this Lease as Landlord
and Tenant, respectively, and their agents so authorized in writing.
40. GOVERNING LAW. This Lease shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
41. TENANT'S TERMINATION RIGHTS. Tenant shall have the right and
option to terminate this Lease on February 28, 1999 (the "Termination Date")
by giving Landlord not less than six (6) months prior written notice thereof
and paying to Landlord at the time of the giving of such notice a termination
fee equal to the unamortized portion of the cost of tenant improvements and
brokerage fees (the "Termination Fee"). If Tenant gives notice of its
election to terminate this Lease under this Section 41, but fails to pay the
Termination Fee or fails to vacate the Leased Premises on or before the
Termination Date, Landlord shall have the option of treating such failure as
either (a) an Event of Default hereunder, (b) a rescission of Tenant's notice
of termination, or (c) a holdover under Section 4 hereof. In any event,
Tenant shall pay Landlord, as Additional REnt hereunder, all damages, losses,
costs and expenses (including reasonable legal fees and expenses) Landlord
may have incurred by reason of Tenant's failure to vacate, including, without
limitation, any costs or lost profits from any reletting or proposed
reletting of the Leased Premises and Landlord's efforts to regain possession
of the Leased Premises.
42. PARKING. At no additional rent to Tenant, Landlord shall provide
on the Lot on which the Building is located parking for all tenants
(including Tenant), their guests and customers at an overall rate of at least
five (5) parking spaces per 1,000 square feet of office space in the Building.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the date first mentioned.
LANDLORD:
GLENVIEW CORPORATE CENTER LIMITED
PARTNERSHIP
By: BPPI-I, L.P., its general partner
By: Bergen of Philadelphia, Inc.,
general partner
By: /s/ Xxxxxxxxx X. Xxxxx
--------------------------------
By: Pitcairn Properties Incorporated,
general partner
By: /s/ [Illegible]
--------------------------------
TENANT:
WORLDGATE COMMUNICATIONS
By: /s/ [Illegible]
------------------------------------
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