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STANDARD OFFICE LEASE
1. BASIC LEASE PROVISIONS ("BASIC LEASE PROVISIONS")
1.1 PARTIES: This Lease, dated, for reference purposes only, September 11, 1996
is between K/B FUND II, a Delaware general partnership ("Landlord"), and EPL
TECHNOLOGIES, INC., a Colorado corporation, doing business under the name EPL
TECHNOLOGIES, INC. ("Tenant").
1.2 PREMISES: Suite Number(s) 245, 2nd floor, consisting of approximately six
thousand six hundred and seventy-four (6,674) rentable square feet, more or
less, as shown on Exhibit "A" hereto (the "Premises").
1.3 BUILDING: The building located at Xxxxx Way and Route 291 in the City of
Tinicum, County of Delaware, State of Pennsylvania, as defined in paragraph 2.
1.4 USE: General Office, subject to paragraph 6.
1.5 TERM: Sixty (60) months commencing, subject to paragraph 3.2, October 15,
1996 ("Commencement Date") and ending October 14, 2001, as defined in paragraph
3. Accordingly, if Tender of Possession (as hereinafter defined) is delayed
pursuant to paragraph 3.2, the termination date shall be extended by the number
of days Tender of Possession is delayed beyond October 15, 1996.
1.6 BASE RENT: Ten thousand two hundred sixty-one dollars and twenty-eight cents
($10,261.28) per month, payable on the First (1st) day of each month per
paragraph 4.1.
LEASE PERIOD ANNUAL BASE RENT MONTHLY BASE RENT
------------ ---------------- -----------------
10/15/96 -11/14/96 N/A Free Rent
11/15/96 -10/14/98 $123,135.36 $10,261.28
10/15/98 -10/14/99 $124,803.84 $10,400.32
10/15/99 -10/14/00 $126,472.32 $10,539.36
10/15/00 -10/14/01 $128,140.80 $10,678.40
These dates may be adjusted pursuant to paragraph 3.2. It is understood
that in all cases Tenant shall receive one (1) month's free rent.
1.6(a) ELECTRIC: N/A.
1.7 BASE ALLOWANCE: The annualized dollar amount which results by multiplying
the sum of Base Year 1996 expenses by the rentable square footage of the
Building.
1.8 BASE RENT INCREASE: Intentionally Omitted.
1.9 BASE RENT PAYABLE UPON COMMENCEMENT: Intentionally Omitted
1.10 SECURITY DEPOSIT: $10,261.28.
1.11 TENANT'S SHARE OF OPERATING EXPENSE INCREASE: 2.2% as defined in paragraph
4.2.
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1.12 Intentionally Omitted.
1.13 PARKING: Tenant shall be entitled to parking for twenty-three (23)
automobiles, subject to paragraph 2.2.
1.14 LISTING BROKER: The Xxxxx Company.
1.15 COOPERATING BROKER: Xxxx X. Xxxx Company, Inc. A "cooperating broker" is
defined as any broker other than the Listing Broker entitled to a share of any
commission arising under this Lease.
1.16 ERISA PARTY: Landlord is not an employee benefit plan as that term is
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974
("ERISA"), or a trust formed to hold assets of one or more such plans or an
entity owned by such a plan or trust (each of which is referred to in this Lease
as an "ERISA Party"). Paragraph 48 of this Lease shall apply if Landlord is an
ERISA Party. Paragraph 12.13 of this Lease shall apply if Landlord is an ERISA
Party or if an ERISA Party subsequently becomes Landlord.
1.17 LANDLORD ALTERATIONS, IMPROVEMENTS OR ADDITIONS: Landlord will be making
alterations improvements or additions to the Premises in conjunction with this
Lease and therefore Paragraph 7.5(b) shall apply to this Lease.
2. PREMISES, PARKING AND COMMON AREAS.
2.1 PREMISES: The Premises are a portion of a building identified in paragraph
1.3 of the Basic Lease Provisions (the "Building"). "Building" shall include
adjacent parking structures used in connection therewith. The Premises, the
Building, the Common Areas, as defined in paragraph 2.3, the land upon which the
same are located, along with the other two office buildings and improvements
thereon or thereunder, are herein collectively referred to as the "Office
Building Project". Landlord hereby leases the Premises to Tenant and Tenant
leases the Premises from Landlord for the term, at the rental, and upon all of
the conditions set forth herein, including rights to the Common Areas as herein
specified.
2.1.1 Landlord reserves the right to relocate Tenant once during the term of
this Lease subject to the following conditions:
(a) The rentable area of the new location in the Office
Building Project shall be similar in layout and at least equal to the
Premises (subject to a variation of no more than 3%) provided the
amount of Rent payable pursuant to paragraph 4 of this Lease is not
increased; provided, further, that Rent and Tenant's Share shall be
equitably reduced if such space is smaller;
(b) If the then prevailing Rent for the new location is less
than the amount being paid for the Premises, the Rent shall be reduced
to equal the Rent for the new location;
(c) Landlord shall pay the cost of providing building standard
improvements in the new location comparable to the improvements in the
Premises to the reasonable satisfaction of Tenant, which shall be
completed before Tenant takes possession of the new space;
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(d) Landlord shall pay the expenses reasonably incurred by
Tenant in connection with such substitution of Premises, including but
not limited to costs of moving, door lettering, telephone relocation
and announcements and reasonable quantities of new stationery; and
(e) Landlord shall deliver to Tenant written notice of
Landlord's election to relocate Tenant, specifying the new location and
the amount of Rent payable for it at least ninety (90) days prior to
the date the relocation is to be effective. If the relocation of the
Premises is not acceptable to Tenant, Tenant for a period of ten (10)
days after receipt of Landlord's notice to relocate, shall have the
right (by delivering written notice to Landlord) to terminate this
Lease effective thirty (30) days after delivery of written notice to
Landlord.
2.2 VEHICLE PARKING. Subject to the rules and regulations attached hereto, and
as established by Landlord from time to time pursuant to paragraph 2.4, Tenant
shall be entitled to unreserved parking in the Office Building Project for the
number of automobiles specified in paragraph 1.13 of the Basic Lease Provisions.
Landlord reserves the right to charge for additional parking spaces.
2.2.1 If Tenant violates the parking rules then in effect, then Landlord shall
have the right, without notice, in addition to such other rights and remedies
that it may have, to remove or tow away the vehicle involved and charge the cost
to Tenant, which cost shall be immediately payable upon demand by Landlord.
2.2.2 Monthly parking fees for spaces in excess of 23 shall be payable one month
in advance prior to the first day of each month.
2.3 COMMON AREAS - DEFINITION. The term "Common Areas" is defined as all areas
and facilities outside the Premises and within the exterior boundary line of the
Office Building Project that are provided and designated by the Landlord from
time to time for the general non-exclusive use of Landlord, Tenant and other
lessees of the Office Building Project and their invitees. As used in this
Lease, the term "invitees" means the employees, visitors, suppliers, shippers
and customers of Landlord, Tenant and other lessees of the Office Building
Project. The Common Areas include, but are not limited to, common entrances,
lobbies, corridors, stairways and stairwells, public rest rooms, elevators,
escalators, parking areas and parking spaces to the extent not otherwise
prohibited by this Lease, loading and unloading areas, trash areas, roadways,
sidewalks, parkways, ramps, driveways, landscaped areas, windows, air shafts,
walkways, parking spaces and decorative walls.
2.4 COMMON AREAS - RULES AND REGULATIONS. Tenant agrees to abide by and conform
to the rules and regulations attached hereto as Exhibit B with respect to the
Office Building Project, and to cause its invitees to so abide and conform.
Landlord or such other person (s) as Landlord may appoint shall have the
exclusive control and management of the Common Areas and shall have the right,
from time to time, to modify, amend and enforce said rules and regulations. Such
modifications and amendments shall be in writing, reasonable and not
inconsistent with the terms of this Lease. Landlord shall not be responsible to
Tenant for the noncompliance with said rules and regulations by other lessees of
the Office Building Project or their invitees but will enforce such rules and
regulations consistently.
2.5 COMMON AREAS - CHANGES. Landlord shall have the right, in Landlord's sole
discretion, from time to time:
(a) To make changes to the Building interior and exterior and
the Common Areas, including, without limitation, changes in the
location, size, shape, number, and appearance
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thereof, including but not limited to the lobbies, windows, stairways,
air shafts, elevators, escalators, restrooms, driveways, entrances,
parking spaces, parking areas, loading and unloading areas, ingress,
egress, direction of traffic, decorative walls, landscaped areas and
walkways; provided, however, Landlord shall at all times provide the
parking facilities required by applicable law and this Lease;
(b) To close temporarily any of the Common Areas for
maintenance purposes so long as reasonable access to the Premises
remains available;
(c) To designate other land and improvements outside the
present or future boundaries of the Office Building Project to be a
part of the Common Areas, provided that such other land and
improvements have a reasonable and functional relationship to the
Office Building Project;
(d) To add additional buildings and improvements to the Common
Areas.
(e) To use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Office Building Project or
any portion thereof;
(f) To do and perform such other acts and make such other
changes in, to or with respect to the Common Areas and the other
portions of the Office Building Project as Landlord may, in the
exercise of sound business judgment, deem to be appropriate.
Notwithstanding the foregoing, Tenant's access to the Premises and ability to
use and enjoy the Premises shall not be materially affected by Landlord.
3. TERM.
3.1 TERM. The term and Commencement Date of this Lease shall be as specified in
paragraph 1.5 of the Basic Lease Provisions.
3.2 DELAY IN POSSESSION. Notwithstanding said Commencement Date, if for any
reason Landlord, despite using best efforts, cannot cause Tender of Possession
to occur on or before said date and subject to paragraph 3.2.2, Landlord shall
not be subject to any liability therefor, nor shall such failure affect the
validity of this Lease or the obligations of Tenant hereunder or extend the term
hereof; but, in such case, Tenant shall not be obligated to pay Rent or perform
any other obligation of Tenant under the terms of this Lease, except as may be
otherwise provided in this Lease, until Tender of Possession; provided, however,
that if Landlord shall not have caused Tender of Possession to occur within
sixty (60) days following said Commencement Date, Tenant may, at Tenant's
option, by written notice to Landlord within ten (10) days thereafter, cancel
this Lease, in which event the parties shall be discharged from all obligations
hereunder, except that Landlord shall return any money previously deposited by
Tenant. If Tenant's written notice is not received by Landlord within said ten
(10) day period, Tenant's right to cancel this Lease hereunder shall terminate
and be of no further force or effect. Landlord shall use its best efforts to
cause Tender of Possession to occur on or before October 15, 1996. Tenant shall
receive a credit against Base Rent first coming due in the amount of $342.04 for
every day beyond October 15, 1996 that Tender of Possession has not occurred
because of Landlord's failure to use such best efforts. Before making any change
to the construction described in Exhibit C because of code requirements, or
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existing building conditions, Landlord shall notify Tenant and give Tenant
reasonable input with respect to such change.
3.2.1 POSSESSION TENDERED - DEFINED. Possession of the Premises shall be deemed
tendered to Tenant ("Tender of Possession") when (1) the improvements to be
provided by Landlord under this Lease are substantially completed in a good and
workmanlike manner and in accordance with Exhibit C and all laws, (2) the
Building utilities are ready for use in the Premises, (3) Tenant has reasonable
access to the Premises, (4) state and local certificates of occupancy have been
issued, and (5) ten (10) days shall have expired following advance written
notice to Tenant of the occurrence of the matters described in (1), (2) (3) and
(4), above of this paragraph 3.2.1.
3.2.2 DELAYS CAUSED BY TENANT. There shall be no abatement of Rent, and the
sixty (60) day period following the Commencement Date before which Tenant's
right to cancel this Lease accrues under paragraph 3.2, shall be deemed extended
to the extent of any delays caused by wrongful or negligent acts or omissions of
Tenant, Tenant's agents, employees and contractors.
3.3 EARLY POSSESSION. If Tenant occupies the Premises prior to said Commencement
Date, such occupancy shall be subject to all provisions of this Lease, and such
occupancy shall not change the termination date.
3.4 UNCERTAIN COMMENCEMENT. Because the commencement of the Lease term shall
occur on the date of Tender of Possession, or Tenant's actual occupancy,
whichever occurs first, Tenant and Landlord shall execute an amendment to this
Lease establishing the date of Tender of Possession or the actual taking of
possession by Tenant, whichever first occurs, as the Commencement Date, and
establishing the actual termination date, if the Lease term does not in fact
commence on the scheduled October 15, 1996 commencement date.
3.5 PUNCH LIST. Landlord shall diligently complete punchlist items.
4. RENT.
4.1 BASE RENT. Subject to adjustment as provided in paragraph 4.3 and except as
may be otherwise expressly provided in this Lease, Tenant shall pay Landlord the
Base Rent set forth in paragraph 1.6 of the Basic Lease Provisions, without
offset or deduction. Rent for any period during the term which is for less than
one month shall be prorated based upon the actual number of days of the calendar
month involved. Rent shall be payable in lawful money of the United States to
Landlord at the address stated herein or to such other persons or at such other
places as Landlord may designate in writing.
4.2 OPERATING EXPENSE INCREASE. Tenant shall pay to Landlord during the term of
this Lease Tenant's Share, as defined in paragraph 4.2(a), of all estimated
increases in Operating Expenses, as defined in paragraph 4.2(b), above the Base
Allowance, as defined in paragraph 1.7 of the Basic Lease Provisions. Payments
of Tenant's Share in excess of the Base Allowance are due and payable monthly on
the same date as the Base Rent. Tenant's Share of the increase may be adjusted
by Landlord on a quarterly basis should the actual Operating Expenses exceed the
then current reasonable estimates. Within sixty (60) days after the expiration
of each calendar year, Landlord shall provide Tenant with a reasonably detailed
statement showing the actual increase/decrease in Operating Expenses over the
Base Allowance for the prior year. If payments made by Tenant pursuant to this
paragraph are less than or exceed the amounts shown in any statement then
Tenant's account will be adjusted to reflect the amounts
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due. All deficiencies are payable upon receipt of invoice and all credits will
be applied by Landlord to the next installment of Operating Expense
reimbursement unless this Lease has terminated in which case they shall promptly
be paid to Tenant. Concurrently, with the remittance of the prior year
statement, or as soon thereafter as is reasonably possible, Landlord shall
advise Tenant of the then current year's estimate of Operating Expenses as well
as the monthly payment due thereon. Any deficiencies in the monthly xxxxxxxx
that may have accrued from either the commencement date of the Lease or the
first day of any subsequent calendar year, shall be due and payable upon receipt
by Tenant of an invoice from Landlord.
(a) "Tenant's Share" is defined as the product derived by
multiplying the percentage set forth in paragraph 1.11 of the Basic
Lease Provisions by the then current year's Operating Expenses less
Landlord's Base Allowance. The percentage set forth in paragraph 1.11
is calculated by dividing the rentable square footage of the Premises
by the total rentable square footage of the Building as defined by
Landlord. It is understood and agreed that the square footage figures
are approximations which Landlord and Tenant agree are reasonable and
shall not be subject to revision except in connection with an actual
change in the size of the Premises or a change in the space available
for lease in the Building. Notwithstanding any provision of this
paragraph to the contrary, if the Building is less than ninety (90%)
percent leased as of the last day of any calendar quarter an adjustment
may be made with respect to expenses that vary with occupancy in
Tenant's Share for such quarter to reflect at least eighty (80%)
percent of the rentable area of the Building as being leased. The
formula for such computation shall be a ratio, the numerator of which
is Tenant's rentable square footage as stated in paragraph 1.2 of the
Basic Lease Provisions and the denominator of which is the amount which
results when the total rentable square footage of the Building is
reduced by twenty (20%) percent.
(b) "Operating Expense(s)" is defined to include all costs
incurred by Landlord in the exercise of its reasonable discretion, for:
(i) The operation, repair, maintenance, and
replacement, in a neat, clean, safe, good order and condition,
of the Office Building Project, including but not limited to,
the following:
(aa) The Common Areas, including their
surfaces, coverings, decorative items, carpets,
drapes and window coverings, and including parking
areas, loading and unloading areas, trash areas,
roadways, sidewalks, walkways, stairways, parkways,
driveways, landscaped areas, striping, bumpers,
irrigation systems, lighting facilities, building
exteriors and roofs, fences and gates;
(bb) All heating, air conditioning,
plumbing, electrical systems, life safety equipment,
telecommunications equipment, elevators and
escalators, lessee directories, fire detection
systems, sprinkler systems and other equipment used
in common by, or for the benefit of, occupants of the
Office Building Project;
(ii) Trash disposal, janitorial and security
services;
(iii) Any other service to be provided by Landlord
that is elsewhere in this Lease stated to be an "Operating
Expense";
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(iv) Premiums for the liability and property
insurance policies (including, but not limited to, earthquake,
flood and boiler and machinery insurance, if carried)
maintained by Landlord;
(v) Real property taxes payable by Landlord under
paragraph 10.1;
(vi) Water, sewer, gas, electricity, and other
publicly mandated services to the Office Building Project;
(vii) Wages, salaries and applicable fringe benefits
and materials, supplies and tools, used in maintaining and
cleaning the Office Building Project;
(viii) Maintaining and auditing accounting records
and a management fee (at market rates) attributable to the
operation of the Office Building Project.
(ix) Replacing and/or adding improvements mandated by
any governmental agency as a result of laws enacted after the
date hereof, and any repairs or removals necessitated thereby
amortized over their useful life as determined in the
reasonable judgment of Landlord's accountant (including
interest on the unamortized balance as reasonably determined
by Landlord's accountant);
(x) Replacing equipment or improvements that have a
useful life for depreciation purposes of five (5) years or
less, as determined in the reasonable judgment of Landlord's
accountant, amortized over such life (including interest on
the unamortized balance as reasonably determined by Landlord's
accountant);
(xi) Replacing and/or adding any equipment, device or
capital improvement to reduce operation or maintenance
expenses with respect to the Office Building Project to the
extent actually reduced in Landlord's reasonable
determination, amortized over its useful life as determined in
the reasonable judgment of Landlord's accountant (including
interest on the unamortized balance as reasonably determined
by Landlord's accountant).
(c) Landlord shall make a reasonable allocation of Operating
Expenses that affect the entire Office Building Project among the three
buildings comprising the same. Tenant's Share of Operating Expense
Increase shall be prorated for any calendar year, part of which falls
within the term of this Lease and part of which does not.
Notwithstanding anything to the contrary, within ninety (90) days after
Tenant's receipt of the statements described in this paragraph 4.2,
Tenant may audit Landlord's books and records with respect to the same.
(d) Notwithstanding anything to the contrary set forth in this
Lease, Operating Expenses shall not include the items set forth in this
subparagraph (d).
(i) Leasing commissions and other expenses incurred
for leasing, renovating or improving space for tenants or
enforcing the terms of any leases.
(ii) Costs incurred in renovating, improving,
decorating, painting or redecorating vacant space or space for
tenants.
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(iii) Landlord's cost of electricity or other
services sold to tenants for which Landlord is to be
reimbursed under the lease with that tenant.
(iv) Replacement of equipment or improvements having
a useful life in excess of five (5) years, as determined by
generally accepted accounting principles, unless they are the
type described in subparagraphs 4.2(b)(ix) or (xi), in which
case it shall be included.
(v) Depreciation or amortization on the Building.
(vi) Interest on debt or amortization payments on
mortgages or any other debt for borrowed money.
(vii) Items Landlord provides selectively to one or
more tenants of the Building other than Tenant.
(viii) Advertising and promotional expenditures, and
costs for services or supplies not obtained at market rates.
(ix) Repairs or other work needed because of fire or
other casualty or causes insured against by Landlord, or to
the extent Landlord's insurance required under this Lease
would have provided insurance, whichever is greater; provided,
that a commercially reasonable deductible may be included as
part of Operating Expenses.
(x) Any costs, fines or penalties incurred because
Landlord violated any governmental law or regulation, or to
repair original construction defects.
(xi) Costs incurred to test, survey, clean up,
contain, xxxxx, remove or otherwise remedy hazardous
substances or asbestos containing materials.
(xii) Any fines or penalties for late payment of
taxes.
(xiii) Federal, state or local income taxes,
franchise, gift, transfer, excise, capital stock, estate,
succession or inheritance taxes.
4.3 BASE RENT INCREASE.
4.3.1 At the times set forth in paragraph 1.6 of the Base Lease Provisions, the
monthly Base Rent payable under paragraph 4.1 of this Lease shall be increased.
4.4 DEFINITION OF RENT. The capitalized term "Rent", as used in this Lease,
shall mean the Base Rent plus Tenant's Share of Operating Expense Increase.
5. SECURITY DEPOSIT. Tenant shall deposit with Landlord upon execution hereof
the security deposit set forth in paragraph 1.10 of the Basic Lease Provisions
as security for Tenant's faithful performance of Tenant's obligations hereunder.
If Tenant fails to pay Rent or other charges due hereunder, or otherwise
defaults with respect to any provision of this Lease, subject to applicable
notice and grace periods, Landlord may use, apply or retain all or any portion
of said deposit for the payment of any Rent
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or other charge in default, for the payment of any other sum to which Landlord
may become obligated by reason of Tenant's default, or to compensate Landlord
for any loss or damage which Landlord may suffer thereby. If Landlord so uses or
applies all or any portion of said deposit, Tenant shall within ten (10) days
after written demand deposit cash with Landlord in an amount sufficient to
restore said deposit to the full amount then required of Tenant. If the Base
Rent shall at anytime, increase during the term of this Lease, Tenant shall, at
the time of such increase, deposit with Landlord additional money as a security
deposit so that the total amount of the security deposit held by Landlord shall
at all times bear the same proportion to the then current Base Rent as the
initial security deposit bears to the initial Base Rent set forth in paragraph
1.6 of the Basic Lease Provisions. Landlord shall not be required to keep said
security deposit separate from its general accounts. If Tenant performs all of
Tenant's obligations hereunder, subject to applicable notice and grace periods,
said deposit, or so much thereof as has not been applied by Landlord as provided
in this paragraph 5, shall be promptly returned, without payment of interest or
other increment for its use, to Tenant (or, at Landlord's option, to the last
assignee, if any, of Tenant's interest hereunder) after the term expires and
Tenant vacates the Premises. No trust relationship is created herein between
Landlord and Tenant with respect to said Security Deposit.
6. USE.
6.1 USE. The Premises shall be used and occupied only for the purpose set forth
in paragraph 1.4 of the Basic Lease Provisions and for no other purpose.
6.2 COMPLIANCE WITH LEGAL AND INSURANCE REQUIREMENTS. Tenant shall, at Tenant's
expense, promptly comply with all applicable statutes, ordinances, rules,
regulations and orders and reasonable and customary requirements of insurance
underwriters or rating bureaus, now in effect or which may hereafter come into
effect, whether or not they reflect a change in policy from that now existing,
during the term or any part of the term hereof, relating to the manner Tenant
uses the Premises. Tenant shall conduct its business in a lawful manner and
shall not use or permit the use of the Premises or the Common Areas in any
manner that will create waste or a nuisance or shall unreasonably disturb other
occupants of the Office Building Project. Notwithstanding the foregoing, in no
case shall this provision be construed as requiring Tenant to make any
structural changes to the Premises or the Building or change or install systems.
Landlord represents and warrants that on the date of Tender of Possession, the
Premises will comply will all applicable laws, ordinances, rules and regulations
("Laws") and that Tenant's use is permitted under all Laws. Landlord further
represents and warrants that all easements, covenants and restrictions of record
permit such use. Landlord shall be responsible for any failure of the Building
to comply with Laws.
6.3 CONDITION OF PREMISES.
(a) Upon delivery of possession to Tenant the Premises shall
be clean and the plumbing, lighting, air conditioning, and heating
system in the Premises shall be in a good operating condition. Tenant
shall promptly notify Landlord in writing of any claimed violation of
the foregoing warranty, setting forth with specificity the nature of
the violation. If there has been a violation, Landlord shall promptly
after receipt of such notice from Tenant, at Landlord's sole cost,
rectify such violation.
(b) Except as otherwise provided in this Lease, Tenant hereby
accepts the Office Building Project in its "as is" condition as of the
date of delivery of possession of the Premises to Tenant, subject to
all applicable municipal, county and state laws, ordinances and
regulations governing and regulating the use of the Office Building,
and any easements, covenants or
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restrictions of record, and accepts this Lease subject thereto and to
all matters disclosed thereby and by any exhibits attached hereto.
Tenant acknowledges that it has satisfied itself by its own independent
investigation that the Premises are suitable for its intended use, and
that neither Landlord nor any agent of Landlord has made any
representation or warranty as to the present or future suitability of
the Premises, Common Areas, or Office Building Project for the conduct
of Tenant's business.
7. MAINTENANCE, REPAIRS, ALTERATIONS AND ADDITIONS.
7.1 MAINTENANCE AND REPAIR - LANDLORD'S OBLIGATIONS. Landlord shall maintain
(and replace, if necessary) the Common Areas of the Office Building Project, the
roof, bearing walls and other structural elements of the Building, and the
plumbing, heating, ventilating, air conditioning, elevator, electrical and other
systems of the Building in good working order and condition. Except as provided
in paragraphs 9.5 and 11.5, there shall be no abatement of Rent or liability of
Landlord on account of any injury or interference with Tenant's business with
respect to any improvements, alterations or repairs made by Landlord to the
Office Building Project or any part thereof if Landlord and its agents,
employees and contractors use reasonable care. Tenant expressly waives the
benefits of any statute now or hereafter in effect which would otherwise afford
Tenant the right to make repairs at Landlord's expense or to terminate this
Lease because of Landlord's failure to keep the Premises in good order,
condition and repair.
7.2 MAINTENANCE AND REPAIR - TENANT'S OBLIGATIONS. During the term of this
Lease, Tenant shall take good care of the Premises and fixtures therein except
structural elements and building systems, and maintain them in good order,
condition and repair equal to the original work, ordinary and reasonable wear
and damage by fire or other casualty or condemnation excepted. During the term
of this Lease, Tenant shall maintain at its own expense any plumbing facilities
located within the Premises serving only the Premises, except the rest rooms
located in the core of the Building, in good order, condition and repair to the
reasonable satisfaction of Landlord. Upon surrender of the Premises to Landlord,
Tenant shall deliver the Premises to Landlord, broom clean, in as good order,
condition and repair as they were upon delivery of possession to Tenant,
ordinary and reasonable wear and tear and damage by fire or other casualty or
condemnation excepted.
7.2(A) Notwithstanding the foregoing, all fit-out work performed by Landlord
pursuant to Exhibit C that would otherwise be the responsibility of Tenant to
repair or replace shall be repaired or replaced by Landlord at its sole expense
to the extent the same is necessary at any time within one (1) year after the
date of Tender of Possession. Landlord shall not be responsible for reasonable
wear and tear to such fit-out work.
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7.3 ALTERATIONS AND ADDITIONS.
(a) Tenant shall not, without Landlord's prior written
consent, not to be unreasonably withheld, delayed or conditioned, make
any alterations, improvements or additions in, on or about the Premises
or the Office Building Project. At the expiration of the term, Landlord
may require the removal of any or all of said alterations, improvements
or additions and the restoration of the Premises and the Office
Building Project to their prior condition, at Tenant's expense. Should
Landlord permit Tenant to make any alterations, improvements or
additions, Tenant shall use only contractors expressly approved by
Landlord. In addition, Landlord may require Tenant to provide Landlord,
at Tenant's sole cost and expense, with a lien and completion bond in
an amount equal to one and one half times the estimated cost of such
improvements, to insure Landlord against any liability for mechanic's
and materialmen's liens and to insure completion of the work. Such
contractors shall carry liability insurance of a type and in such
reasonable amounts as Landlord shall reasonably require, naming
Landlord and Tenant as additional insureds. Before commencing the work,
such contractors shall furnish Landlord with certificates of insurance
evidencing such coverage and with evidence of recording of a fully
executed waiver of mechanics' liens. Tenant shall also maintain a
policy of Builder's Risk for such work. Should Tenant make any
alterations, improvements or additions without the prior approval of
Landlord, or use a contractor not expressly approved by Landlord,
Landlord may, at any time during the term of this Lease, require that
Tenant remove any part or all of such work. Notwithstanding the
foregoing, nonstructural alterations, improvements or additions may be
made without Landlord's consent, but upon at least 10 days notice to
Landlord; provided, that Landlord has obtained any required consents
from the municipal authorities, which consents Landlord shall
diligently pursue upon Tenant's request. The fees for any such consents
or approvals shall be paid for by Tenant.
(b) Tenant shall present any alteration, improvement or
addition in or about the Premises or the Office Building Project that
Tenant desires to make to Landlord in written form, with proposed
detailed plans. If Landlord consents to such alteration, improvement or
addition, the consent shall be deemed conditioned upon Tenant acquiring
a permit to do so from the applicable government agencies, furnishing a
copy thereof to Landlord prior to the commencement of the work, and
compliance by Tenant with all conditions of said permit in a prompt and
expeditious manner.
(c) Tenant shall pay, when due, all claims for labor or
materials furnished or alleged to have been furnished to or for Tenant
at or for use in the Premises, which claims are or may be secured by
any mechanic's or materialmen's lien against the Premises, the Building
or the Office Building Project, or any interest therein.
(d) Tenant shall give Landlord not less than ten (10) days'
notice prior to the commencement of any work in the Premises by Tenant.
Landlord shall have the right to post notices of non-responsibility in
or on the Premises or the Building. If Tenant, in good faith, contests
the validity of any lien, claim or demand regarding the work, then
Tenant shall, at its sole expense, defend itself and Landlord and
Landlord's agents against the same and shall pay and satisfy any
adverse judgment that may be rendered thereon before the enforcement
thereof against Landlord or Landlord's agents or the Premises or the
Building or the Office Building Project, upon the condition that if
Landlord shall require, Tenant shall furnish to Landlord a surety bond
satisfactory to Landlord in an amount equal to such contested lien
claim or demand
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indemnifying Landlord and Landlord's agents against liability for the
same and holding the Premises, the Building and the Office Building
Project free from the effect of such lien or claim. In addition,
Landlord may require Tenant to pay Landlord's reasonable attorneys'
fees and costs in participating in such action if Landlord decides it
is in Landlord's best interest to participate.
(e) All alterations, improvements and additions made by Tenant
shall be done in a good, workmanlike, manner with good quality
materials and shall become upon installation the property of Landlord
and remain upon and be surrendered with the Premises at the expiration
of the Lease term, unless Landlord requires their removal pursuant to
paragraph 7.3(a). Any trade fixtures installed and paid for by Tenant
may, in the event Tenant is not in default beyond applicable notice and
grace periods under this Lease, be removed by Tenant during the term of
this Lease and shall upon demand by Landlord be removed upon expiration
of the term. Tenant shall in all events promptly repair any damage
caused by removal of trade fixtures.
(f) Tenant shall provide Landlord with as-built plans and
specifications for any alterations, improvements or additions.
7.4 UTILITY ADDITIONS. Landlord reserves the right to install new or additional
utility facilities throughout the Office Building Project for the benefit of
Landlord or Tenant, or any other lessee of the Office Building Project,
including, but not by way of limitation, such utilities as plumbing, electrical
systems, communication systems, and fire protection and detection systems, so
long as such installations do not unreasonably interfere with Tenant's use of
the Premises.
7.5 AMERICANS WITH DISABILITIES ACT.
(a) The provisions of the paragraph 7.5(a) will apply only if
Landlord will not be making alterations improvements or additions to
the Premises in conjunction with this Lease.
Tenant acknowledges that Landlord will not be making any alterations,
improvements or additions to the Premises under this Lease. In establishing the
Rent under this Lease the Landlord has relied on the agreement between Tenant
and Landlord that Landlord will not be required to make any alterations,
improvements or additions to the Premises. Landlord has made no representation
to Tenant that the Premises comply with or will comply with the Americans with
Disabilities Act (the "Act"). Tenant agrees to and shall be responsible for all
cost and expense incurred in connection with any alterations, improvements and
changes necessary to ensure compliance with the Act. It is the intent of this
paragraph that any alterations, improvements or additions required by the Act
with regard to the Premises, whether resulting from amendments to the Act or
otherwise shall be the sole responsibility of Tenant. Tenant covenants and
agrees to and does hereby indemnify, defend and hold Landlord harmless from and
against all liability (including, without limitation, attorneys' fees and court
costs) that Landlord may actually sustain by reason of Tenant's breach of its
obligations under this paragraph. In the event that Tenant fails to comply with
its obligations under this paragraph for a period of ten (10) days after written
notice from Landlord to Tenant specifying the action required to be taken,
Landlord shall have the right, but not the obligation, to enter into the
Premises and perform such action on behalf of Tenant. In such event, Landlord
shall not be liable for and Tenant hereby waives any and all claims against
Landlord arising out of any damage or injury to the Premises or any property
situated therein and Landlord shall have no liability to Tenant for any
interruption of Tenant's operations conducted in or about the Premises. Any and
all costs and expenses incurred by Landlord in performing such action on behalf
of Tenant shall be reimbursed by Tenant to Landlord upon demand and the failure
to do so shall, at the option of Landlord, constitute an event of default under
this Lease.
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(b) The provisions of the paragraph 7.5(b) will apply only if
Landlord will be making alterations improvements or additions to the
Premises in conjunction with this Lease.
Landlord covenants and agrees that all alterations, improvements and additions
to the Premises constructed by Landlord pursuant to the terms and provisions of
this Lease shall be constructed in accordance with the Americans with
Disabilities Act (the "Act"), such that all such alterations, improvements and
additions to the Premises constructed by Landlord will be in compliance with the
Act as of the date on which Tenant takes possession of the Premises. Tenant
covenants and agrees that all alterations, improvements and additions to the
Premises constructed by Tenant, whether prior to or after the date Tenant takes
possession of the Premises, shall be constructed in accordance with the Act. In
the event that, subsequent to the date Tenant takes possession of the Premises,
Tenant requests Landlord to perform any alterations, improvements and additions
to the Premises, whether by virtue of expansion, extension or otherwise, Tenant
agrees to and shall be responsible for all cost and expense incurred in
connection with any alterations, improvements and additions necessary to ensure
compliance with the Act. It is the intent of this paragraph that any additional
alterations, improvements or additions made by Tenant to the Premises after the
date Tenant takes possession of the Premises, whether resulting from amendments
to the Act or otherwise, shall be the sole responsibility of Tenant with respect
to compliance with the Act. Tenant covenants and agrees to and does hereby
indemnify, defend and hold Landlord harmless from and against all liability
(including, without limitation, reasonable attorneys' fees and court costs) that
Landlord may actually sustain by reason of Tenant's breach of its obligations
under this paragraph. In the event that Tenant fails to comply or commence
complying with its obligations under this paragraph for a period of ten (10)
days after written notice from Landlord to Tenant specifying the action required
to be taken, Landlord shall have the right, but not the obligation, to enter
into the Premises and perform such action on behalf of Tenant. In such event,
Landlord shall not be liable for and Tenant hereby waives any and all claims
against Landlord arising out of any damage or injury to the Premises or any
property situated therein and Landlord shall have no liability to Tenant for any
interruption of Tenant's operations conducted in or about the Premises. Any and
all reasonable costs and expenses incurred by Landlord in performing such action
on behalf of Tenant shall be reimbursed by Tenant to Landlord promptly and the
failure to do so shall, at the option of Landlord, constitute an event of
default under this Lease.
8. INSURANCE; INDEMNITY.
8.1 LIABILITY INSURANCE-TENANT. Tenant shall, at Tenant's expense, obtain and
keep in force during the term of this Lease a policy of Commercial General
Liability Insurance with Broad Form General Liability Endorsement, or
equivalent, in an amount of not less than $1,000,000 per occurrence of bodily
injury and property damage combined or in a greater amount as reasonably
determined by Landlord and shall insure Tenant with Landlord and Landlord's
asset manager and property manager as additional insureds against liability
arising out of the use, occupancy or maintenance of the Premises. Compliance
with the above requirement shall not, however, limit the liability of Tenant
hereunder.
8.2 LIABILITY INSURANCE - LANDLORD. Landlord shall obtain and keep in force
during the term of this Lease a policy of Commercial General Liability
Insurance, plus coverage against such other risks as Landlord deems advisable
from time to time, in such amounts as Landlord deems advisable from time to
time, insuring Landlord, but not Tenant, against liability arising out of the
ownership, use, occupancy or maintenance of the Office Building Project.
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8.3 PROPERTY INSURANCE - TENANT. Tenant shall, at Tenant's expense, obtain and
keep in force during the term of this Lease for the benefit of Tenant, fire and
extended coverage insurance, with vandalism and malicious mischief, sprinkler
leakage and earthquake sprinkler leakage endorsements, in an amount sufficient
to cover the full replacement cost, as the same may exist from time to time, of
all of Tenant's personal property, fixtures, equipment and tenant improvements,
except for items constructed or installed by Landlord pursuant to Exhibit C.
8.4 PROPERTY INSURANCE - LANDLORD. Landlord shall obtain and keep in force
during the term of this Lease a policy or policies of insurance covering loss or
damage to the Office Building Project improvements, but not Tenant's personal
property, fixtures, equipment or tenant improvements (except for items
constructed or installed by Landlord pursuant to Exhibit C), in an amount equal
to the full replacement value of the Office Building Project providing
protection against all perils included within the classification of fire,
extended coverage, vandalism, malicious mischief, plate glass, and such other
perils as Landlord deems advisable from time to time or may be required by a
lender having a lien on the Office Building. Such insurance may include
earthquake, flood and boiler and machinery insurance. In addition, Landlord may
obtain and keep in force, during the term of this Lease, rental value insurance,
with loss payable to Landlord, which insurance may also cover Operating
Expenses. Tenant will not be named in any such policies carried by Landlord and
shall have no right to any proceeds therefrom. The policies required by
paragraphs 8.2 and 8.4 shall contain such deductibles as Landlord or the
aforesaid lender may determine. In the event that the Premises shall suffer an
Insured Loss as defined in paragraph 9.1(e), the deductible amounts under the
applicable insurance policies shall be deemed an Operating Expense. Tenant shall
not do or permit to be done anything which shall invalidate the insurance
policies carried by Landlord, provided, that in all cases Tenant shall be
permitted to continue the use specified in paragraph 1.4. Tenant shall pay the
entirety of any increase in the property insurance premium for the Office
Building Project over what it was immediately prior to the commencement of the
term of this Lease if the increase is specified by Landlord's insurance carrier
as being caused by the nature of Tenant's occupancy or any act or omission of
Tenant, but only if Tenant's use has changed from the use permitted in Paragraph
1.4.
8.5 INSURANCE POLICIES. Tenant shall deliver to Landlord copies of the insurance
policies required under paragraphs 8.1 and 8.3 or, if permitted by Landlord,
certificates evidencing the existence and amounts of such insurance within seven
(7) days after the Commencement Date of this Lease. The policies or certificates
must include a copy of the endorsement naming the additional insureds required
under Section 8.1. Tenant shall, at least thirty (30) days prior to the
expiration of each policy, furnish Landlord with a copy of the policy or a
certificate evidencing the renewal thereof. If Tenant provides a certificate
Landlord may at any time thereafter require Tenant to provide Landlord with a
copy of the policy. The policies shall be issued by insurers having a rating of
A 10 or better in Best's Key Rating Guide, who are admitted carriers in the
state where the Office Building Project is located. No such policy shall be
cancelable or subject to reduction of coverage or other modification except
after thirty (30) days prior written notice to Landlord.
8.6 WAIVER OF SUBROGATION. Tenant and Landlord each hereby release and relieve
the other (and Landlord's asset manager and property manager) and waive their
entire right of recovery against the other (and Landlord's asset manager and
property manager), for direct or consequential loss or damage arising out of or
incident to the perils covered by property insurance carried by such party, or
that was required under the terms of this Lease to be carried, whether due to
the negligence of Landlord or Tenant or their agents, employees, contractors or
invitees. If necessary, all property insurance policies required under this
Lease shall be endorsed to so provide. Solely for the purposes of this waiver,
the deductible under any insurance policy carried by Landlord or Tenant shall be
deemed to be zero.
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8.7 INDEMNITY. Subject to paragraph 8.6, Tenant shall indemnify and hold
harmless Landlord and its agents, master or ground lessor, partners,
shareholders, directors and lenders, if any, from and against any and all claims
for damage to the person or property of anyone or any entity arising from
Tenant's use of the Office Building Project, or from the conduct of Tenant's
business or from any activity, work or things done, permitted or consented to by
Tenant in or about the Premises or elsewhere and shall further indemnify and
hold harmless Landlord from and against any and all claims, costs and expenses
arising from any default (beyond applicable notice and grace periods) in the
performance of any obligation on Tenant's part to be performed under the terms
of this Lease, or arising from any act or omission of Tenant, or any of Tenant's
agents, contractors, employees or invitees, and from and against all costs,
reasonable attorneys' fees, expenses and liabilities incurred by Landlord as the
result of any such use, conduct, activity, work, things done, permitted or
consented to, default or negligence, and in dealing reasonably therewith,
including but not limited to the defense or pursuit of any claim or any action
or proceeding involved therein; and in case any action or proceedings be brought
against Landlord by reason of any such matter, Tenant upon notice from Landlord
shall defend the same at Tenant's expense by counsel reasonably satisfactory to
Landlord and Landlord shall cooperate with Tenant in such defense. Landlord need
not have first paid any such claim in order to be so indemnified. Tenant, as a
material part of the consideration to Landlord, hereby assumes all risk of
damage to property of Tenant in, upon or about the Office Building Project
arising from any cause except the gross negligence or willful misconduct of
Landlord or any of its contractors, agents or employees, and Tenant hereby
waives all claims in respect thereof against Landlord. Notwithstanding anything
to the contrary contained in this Lease, in no case shall Tenant be required to
indemnify a party against its own negligence. The provisions of this paragraph
8.7 shall survive the expiration or termination of this Lease.
8.8 EXEMPTION OF LANDLORD FROM LIABILITY. Subject to paragraph 11.5 and the
requirement that Landlord and its contractors, agents and employees use
reasonable care when maintaining, operating and repairing the Office Building
Project and when within the Premises pursuant to paragraph 32, Tenant hereby
agrees that Landlord shall not be liable for injury to Tenant's business or any
loss of income therefrom or for loss of or damage to the goods, wares,
merchandise or other property of Tenant, Tenant's employees, invitees,
customers, or any other person in or about the Premises or the Office Building
Project, nor shall Landlord be liable for injury to the person of Tenant,
Tenant's employees, agents or contractors, whether such damage or injury is
caused by or results from theft, fire, steam, electricity, gas, water or rain,
or from the breakage, leakage, obstruction or other defects of pipes,
sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures,
or from any other cause, whether said damage or injury results from conditions
arising upon the Premises or upon other portions of the Office Building Project,
or from other source or place, or from new construction or the repair,
alteration or improvement of any part of the Office Building Project, or of the
equipment, fixtures or appurtenances applicable thereto, and regardless of
whether the cause of such damage or injury or the means of repairing the same is
inaccessible. Landlord shall not be liable for any damages arising from any act
or neglect of any other tenant, occupant or user of the Office Building Project,
nor from the failure of Landlord to enforce the provisions of any other lease of
any other tenant of the Office Building Project.
8.9 NO REPRESENTATION OF ADEQUATE COVERAGE. Landlord makes no representation
that the limits or forms of coverage of insurance specified in this paragraph 8
are adequate to cover Tenant's property or obligations under this Lease.
9. DAMAGE OR DESTRUCTION.
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9.1 DEFINITIONS.
(a) "Premises Damage" shall mean damage or destruction of the
Premises to any extent.
(b) "Premises Building Partial Damage" shall mean damage or
destruction of the Building of which the Premises are a part to the
extent that the cost to repair is less than fifty percent (50%) of the
then Replacement Cost of the Building.
(c) "Premises Building Total Destruction" shall mean damage or
destruction of the Building of which the Premises are a part to the
extent that the cost to repair is fifty percent (50%) or more of the
then Replacement Cost of the Building.
(d) "Office Building Project Total Destruction" shall mean
damage or destruction of the buildings in the Office Building Project
to the extent that the cost of repair is fifty percent (50%) or more of
the then Replacement Cost of all of the buildings in the Office
Building Project.
(e) "Insured Loss" shall mean damage or destruction caused by
an event required to be covered by the insurance described in paragraph
8. The fact that an Insured Loss has a deductible amount shall not make
the loss an uninsured loss.
(f) "Replacement Cost" shall mean the amount of money
necessary to be spent to repair or rebuild the damaged area to the
condition that existed immediately prior to the damage occurring,
excluding all improvements made by tenants of the Office Building
Project.
9.2 PREMISES DAMAGE; PREMISES BUILDING PARTIAL DAMAGE.
(a) Insured Loss: Subject to the provisions of paragraphs 9.4
and 9.5, if at any time during the term of this Lease there is an
Insured Loss and that falls into the classification of either Premises
Damage or Premises Building Partial Damage and that does not fall into
the classification of Premises Building Total Destruction or Office
Building Project Total Destruction, then Landlord shall, as soon as
reasonably possible and to the extent the required materials and labor
are readily available through usual commercial channels, at Landlord's
expense, repair such damage, including, without limitation, the items
constructed or installed by Landlord pursuant to Exhibit C (but not
Tenant's fixtures, equipment or tenant improvements originally paid for
by Tenant), to its condition existing at the time of the damage, and
this Lease shall continue in full force and effect.
(b) Uninsured Loss: Subject to the provisions of paragraphs
9.4 and 9.5, if at any time during the term of this Lease there is
damage that is not an Insured Loss and that falls into the
classification of Premises Damage or Premises Building Partial Damage,
and that does not fall into the classification of Premises Building
Total Destruction or Office Building Project Total Destruction, unless
caused by the negligence or willful misconduct of Tenant (in which
event Tenant shall make the repairs at Tenant's expense), which damage
materially impairs Tenants' use of the Premises, Landlord may at
Landlord's option either (i) repair such damage as soon as reasonably
possible at Landlord's expense, in which event this Lease shall
continue in full force and effect, or (ii) give written notice to
Tenant within thirty (30) days after the date of the occurrence of such
damage of Landlord's intention to cancel and terminate this Lease as of
the
17
date of the occurrence of such damage, in which event this Lease
shall terminate as of the date of the occurrence of such damage.
9.3 PREMISES BUILDING TOTAL DESTRUCTION; OFFICE BUILDING PROJECT TOTAL
DESTRUCTION. Subject to the provisions of paragraphs 9.4 and 9.5, if at any time
during the term of this Lease there is damage, whether or not it is an Insured
Loss, that falls into the classification of either (i) Premises Building Total
Destruction, or (ii) Office Building Project Total Destruction, then Landlord
may at Landlord's option either (i) repair such damage or destruction as soon as
reasonably possible at Landlord's expense (to the extent the required materials
are readily available through usual commercial channels) to its condition
existing at the time of the damage, including, without limitation, the items
constructed or installed by Landlord pursuant to Exhibit C, but not Tenant's
fixtures, equipment or tenant improvements originally paid for by Tenant, and
this Lease shall continue in full force and effect, or (ii) give written notice
to Tenant within thirty (30) days after the date of occurrence of such damage of
Landlord's intention to cancel and terminate this Lease, in which case this
Lease shall terminate as of the date of the occurrence of such damage.
9.4 DAMAGE NEAR END OF TERM.
(a) Subject to paragraph 9.4(b), if at any time during the
last twelve (12) months of the term of this Lease there is material
Premises Damage, either party may cancel and terminate this Lease as of
the date of occurrence of such damage by giving written notice to the
other within 30 days after the date of occurrence of such damage.
(b) In the event that Tenant has an option to extend or renew
this Lease that has not expired, Tenant shall exercise such option, if
it is to be exercised at all, no later than twenty (20) days after the
occurrence during the last twelve (12) months of the term of an Insured
Loss that falls into the classification of material Premises Damage. If
Tenant duly exercises such option during said twenty (20) day period,
the provisions of paragraph 9.4(a) shall not apply. If Tenant fails to
exercise such option during said twenty (20) day period, then Landlord
may at Landlord's option terminate and cancel this Lease as of the
expiration of said twenty (20) day period, notwithstanding any term or
provision in the grant of option to the contrary.
9.5 ABATEMENT OF RENT; Tenant's Remedies.
(a) In the event Landlord repairs or restores the Building or
Premises pursuant to the provisions of this paragraph 9, or is
obligated to do so, and any part of the Premises are not usable
(including loss of use due to loss of access or essential services),
the Rent payable hereunder (including Tenant's Share of Operating
Expense Increase) for the period during which such damage, repair or
restoration continues shall be equitably abated; provided such
abatement shall only be to the extent the operation and profitability
of Tenant's use of the Premises is adversely affected. Notwithstanding
the preceding sentence, such abatement shall not apply if (i) the
damage was not an Insured Loss, and (ii) the damage was the result of
the negligence or willful misconduct of Tenant. Except for said
abatement of Rent, if any, Tenant shall have no claim against Landlord
for any damage suffered by reason of any such damage, destruction,
repair or restoration.
(b) If Landlord shall be obligated to repair or restore the
Premises or the Building or agrees to do so under the provisions of
this paragraph 9 and shall not commence such repair or restoration
within ninety (90) days after such occurrence, or if Landlord shall not
complete
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the restoration and repair within six (6) months after such
occurrence, Tenant may at Tenant's option cancel and terminate this
Lease by giving Landlord written notice of Tenant's election to do so
at any time prior to the commencement or completion, respectively, of
such repair or restoration. In such event this Lease shall terminate as
of the date of such notice.
(c) Tenant agrees to cooperate with Landlord in connection
with any such restoration and repair, including but not limited to the
approval or execution of plans and specifications if required.
9.6 TERMINATION - ADVANCE PAYMENTS. Upon termination of this Lease pursuant to
this paragraph 9, an equitable adjustment shall be made concerning advance Rent
and any advance payments made by Tenant to Landlord. Landlord shall, in
addition, return to Tenant so much of Tenant's security deposit as has not
theretofore been applied by Landlord.
9.7 WAIVER. Landlord and Tenant waive the provisions of any statute relating to
termination of leases when leased property is destroyed and agree that such
event shall be governed by the terms of this Lease.
10. REAL PROPERTY TAXES.
10.1 PAYMENT OF TAXES. Landlord shall pay the real property tax, as defined in
paragraph 10.3, applicable to the Office Building Project subject to
reimbursement by Tenant of Tenant's Share of such taxes in accordance with the
provisions of paragraph 4.2, except as otherwise provided in paragraph 10.2.
10.2 ADDITIONAL IMPROVEMENTS. Tenant shall not be responsible for paying any
increase in real property tax specified in the tax assessor's records and work
sheets as being caused by additional improvements placed upon the Office
Building Project by other lessees or by Landlord for the exclusive enjoyment of
any other lessee. Tenant shall, however, pay to Landlord at the time that
Operating Expenses are payable under paragraph 4.2 the entirety of any increase
in real property tax if assessed solely by reason of additional improvements
placed upon the Premises by Tenant or at Tenant's request.
10.3 DEFINITION OF "REAL PROPERTY TAX." As used herein, the term "real property
tax" shall include any form of real estate tax or assessment, general, special,
ordinary or extraordinary, and any license fee, commercial rental tax,
improvement bond or bonds, levy or tax (other than inheritance, personal income
or estate taxes) imposed on the Office Building Project or any portion thereof
by any authority having the direct or indirect power to tax, including any city,
county, state or federal government, or any school, agricultural, sanitary,
fire, street, drainage or other improvement district thereof, as against any
legal or equitable interest of Landlord in the Office Building Project or in any
portion thereof, as against Landlord's right to rent or other income therefrom,
and as against Landlord's business of leasing the Office Building Project. The
term "real property tax" shall also include any increase in the real property
tax that occurs after a sale of the Office Building Project and any tax, fee,
levy, assessment or charge (i) in substitution of, partially or totally, or as a
supplement to any tax, fee, levy, assessment or charge included within the
definition of "real property tax," and (ii) which is imposed by reason of this
transaction, any modifications or changes hereto, or any transfers hereof.
10.4 JOINT ASSESSMENT. If the improvements or property, the taxes for which are
to be paid separately by Tenant under paragraph 10.2 or 10.5 are not separately
assessed, Tenant's portion of that tax shall be equitably determined by Landlord
from the respective valuations assigned in the assessor's work sheets
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or such other information (which may include the cost of construction) as may be
reasonably available. Landlord's reasonable determination thereof, in good
faith, shall be conclusive.
10.5 PERSONAL PROPERTY TAXES.
(a) Tenant shall pay prior to delinquency all taxes assessed
against and levied upon trade fixtures, furnishings, equipment and all
other personal property of Tenant contained in the Premises or
elsewhere.
(b) If any of Tenant's said personal property shall be
assessed with Landlord's real property, Tenant shall pay to Landlord
the taxes attributable to Tenant within ten (10) days after receipt of
a written statement setting forth the taxes applicable to Tenant's
property.
11. UTILITIES.
11.1 SERVICES PROVIDED BY LANDLORD. Landlord shall provide passenger and freight
elevator service, security, 24 hour access, pest control, heating, ventilation,
air conditioning, and janitorial service as reasonably required, reasonable
amounts of electricity for normal lighting and office machines, hot and cold
water for reasonable and normal drinking and lavatory use, replacement light
bulbs and/or fluorescent tubes and ballasts for standard overhead fixtures. HVAC
shall be provided in such amounts as to maintain temperatures for comfortable
use and occupancy in light of Tenant's space plan. Landlord shall also provide
maintenance of all Common Areas in a manner comparable to other similar office
buildings in the Philadelphia area, including, without limitation, snow removal
and deicing. Security and janitorial service shall be provided in substantial
accordance with the specifications therefor previously delivered to Tenant.
11.2 SERVICES EXCLUSIVE TO TENANT. Tenant shall pay for all water, gas, heat,
light, power, telephone and other utilities and services specially or
exclusively supplied or metered exclusively to the Premises or to Tenant,
together with any taxes thereon. If any such services are not separately metered
to the Premises, Tenant shall pay a reasonable proportion reasonably determined
by Landlord of all charges jointly metered with other areas in the Office
Building Project.
11.3 HOURS OF SERVICE. Except for 24-hour access, said services and utilities
shall be provided from 8:00 a.m. to 6 p.m., Monday through Friday and 8:00 a.m.
to noon, Saturday, exclusive of legal holidays. Utilities and services required
at other times shall be subject to advance request and reimbursement by Tenant
to Landlord of the cost thereof.
11.4 EXCESS USAGE BY TENANT. Tenant shall not make connection to the utilities
except by or through existing outlets and shall not install or use machinery or
equipment in or about the Premises that uses excess water, lighting or power, or
suffer or permit any act that causes extra burden upon the utilities or
services, including but not limited to security services, over standard office
usage for the Office Building Project. In no event shall Tenant permit
electrical consumption within the Premises to exceed five (5) kilowatt hours per
square foot per hour. Tenant shall reimburse Landlord for any excess expenses or
costs that may arise out of a breach of this paragraph 11.4 by Tenant. Landlord
may, in its reasonable discretion, install at Tenant's expense supplemental
equipment and/or separate metering applicable to Tenant's excess usage or
loading.
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11.5 INTERRUPTIONS. Landlord does not warrant that any services that Landlord
supplies will not be interrupted. Services may be interrupted because of
accidents, repairs, alterations, improvements or any other reason beyond the
reasonable control of Landlord. Notwithstanding the foregoing, if any essential
services (such as HVAC, elevators, electricity or water) supplied by Landlord
are interrupted, and the interruption does not result from the negligence or
misconduct of Tenant, Tenant shall be entitled to an abatement of Rent. The
abatement shall begin on the fourth consecutive business day of the interruption
and shall end when the services are restored.
12. ASSIGNMENT AND SUBLETTING.
12.1 LANDLORD'S CONSENT REQUIRED. Tenant shall not sell, assign, mortgage,
pledge, hypothecate, encumber or otherwise transfer this Lease or any interest
therein (each of which actions is hereafter referred to as a "transfer"), and
shall not sublet the Premises or any part thereof, without the prior written
consent of Landlord in each instance, not to be unreasonably withheld, delayed
or conditioned, and any attempt to do so without such consent shall be voidable
at Landlord's election. It is understood that employees of Tenant's subsidiaries
and affiliates may work at the Premises.
12.2 TENANT'S APPLICATION. If Tenant desires at any time to transfer this Lease
(which transfer shall in no event be for less than its entire interest in this
Lease) or to sublet the Premises or any portion thereof, Tenant shall submit to
Landlord at least thirty (30) days prior to the proposed effective date of the
transfer or sublease ("Proposed Effective Date"), in writing:
(a) A notice of intent to transfer or sublease, setting forth
the Proposed Effective Date, which shall be no less than thirty (30)
days nor more than ninety (90) days after the sending of such notice;
(b) The name of the proposed transferee or subtenant;
(c) The nature of the proposed transferee's or subtenant's
business to be carried on in the Premises;
(d) The terms and provisions of the proposed transfer or
sublease;
(e) Such information as Landlord may request concerning the
proposed transferee or subtenant, including recent financial statements
and bank references; and
(f) Evidence satisfactory to Landlord that the proposed
transferee (if the transfer involves a transfer of possession) or
subtenant will immediately occupy and thereafter use the affected
portion of the Premises for the entire term of the transfer or sublease
agreement.
12.3 LANDLORD'S OPTIONS. Landlord shall have the right, to be exercised by
giving notice to Tenant within thirty (30) days after receipt of Tenant's
above-described notice and such further financial information as may be
requested by Landlord together with the fees required under paragraph 12.7, (i)
to terminate this Lease and recapture the portion of the Premises described in
Tenant's notice; provided, that this recapture right shall only apply to a
request by Tenant to sublease to another party the entire Premises, or a portion
of the Premises for the balance of the term of this Lease, (ii) approve the
transfer or sublease application, or (iii) reject the application for transfer
or sublease. If notice of termination is given by Landlord, it shall serve to
cancel and terminate this Lease with respect to such portion of the Premises;
provided, however, that such termination shall be subject to the written consent
of any
21
mortgagee of Landlord. The effective date of such cancellation shall be
as specified in Landlord's notice of termination, but shall be no earlier than
ninety (90) days after the date of receipt of Tenant's notice and no later than
one hundred twenty (120) days after such date. If this Lease is canceled
pursuant to the foregoing with respect to only a portion of the Premises, the
Rent required under this Lease, and including Tenant's Share, shall be adjusted
proportionately based on the square footage retained by Tenant and the square
footage leased by Tenant hereunder immediately prior to such recapture and
cancellation, and Landlord and Tenant shall thereupon execute an amendment of
this Lease in accordance therewith. If Landlord so recaptures a portion of the
Premises, it shall construct and erect at its sole cost such partitions as may
be required to sever the space retained by Tenant from the space recaptured by
Landlord. Landlord may, without limitation, lease the recaptured portion of the
Premises to the proposed subtenant without liability to Tenant.
12.4 APPROVAL PROCEDURE. If Landlord approves a transfer or sublease, Tenant
shall, prior to the Proposed Effective Date, submit to Landlord (for prompt
execution) an executed original of the transfer or sublease agreement for
execution by Landlord on the signature page after the words "the foregoing is
hereby consented to." No purported transfer or sublease shall be deemed
effective as against Landlord and no proposed transferee or subtenant shall take
occupancy unless such document is so executed by Landlord.
12.5 REQUIRED PROVISIONS. Any and all transfer or sublease agreements shall:
(a) Contain such terms as are described in Tenant's notice
under Paragraph 12.2 or as otherwise agreed by Landlord;
(b) Prohibit further transfers or subleases without Landlord's
consent under this paragraph 12;
(c) Impose the same obligations and conditions on the
transferee or subtenant as are imposed on Tenant by this Lease (except
as to Rent and term or as otherwise agreed by Landlord);
(d) Be expressly subject and subordinate to each and every
provision of this Lease;
(e) Have a term that expires on or before the expiration of
the term of this Lease;
(f) Provide that the Tenant and/or transferee or subtenant
shall pay Landlord the amount of any additional costs or expenses
incurred by Landlord for repairs, maintenance or otherwise as a result
of any change in the nature of occupancy caused by the transfer or
sublease; and
(g) Contain Tenant's acknowledgment that Tenant remains liable
under this lease notwithstanding the transfer or sublease.
12.6 TRANSFER OF SUBLEASE PROFIT. Any sums or other economic consideration
received by Tenant directly or indirectly in connection with any transfer or
sublease (except to the extent of commissions paid by Tenant to a licensed real
estate broker at prevailing rates and leasehold improvement costs incurred by
Tenant) which exceed in the aggregate the sums which Tenant is obligated to pay
Landlord hereunder (prorated to reflect obligations allocable to the portion of
the Premises transferred or sublet) shall be payable to Landlord as additional
Rent under this Lease. Within fifteen (15) days after written request
22
by Landlord, Tenant shall at any time, and from time to time, certify to
Landlord the amount of all such sums or other economic consideration received.
THE PROVISIONS OF THIS PARAGRAPH 12.6 SHALL NOT APPLY DURING ANY PERIOD THAT THE
LANDLORD IS TAX EXEMPT UNDER SECTION 501(A) OF THE INTERNAL REVENUE CODE OR ANY
SUCCESSOR STATUTE.
12.7 FEES FOR REVIEW. Tenant shall pay to Landlord or Landlord's designee,
together with the notice described in Paragraph 12.2, a non refundable fee as
reimbursement for expenses incurred by Landlord in connection with reviewing
each such transaction, in the amount of Three Hundred Dollars ($300.00). In
addition to such reimbursement, if Landlord retains the services of an attorney
to review the transaction, Tenant shall pay to Landlord all reasonable
attorneys' fees incurred by Landlord in connection therewith. Tenant shall pay
such attorneys' fees to Landlord within thirty (30) days after written request.
12.8 NO RELEASE OF TENANT. No consent by Landlord to any transfer or subletting
by Tenant shall relieve Tenant of any obligation to be performed by Tenant under
this Lease, whether occurring before or after such consent, transfer or
subletting. Landlord's consent to any transfer or subletting shall not relieve
Tenant from the obligation to obtain Landlord's express prior written consent to
any other transfer or subletting. The acceptance by Landlord of payment from any
other person shall not be deemed to be a waiver by Landlord of any provision of
this Lease or to be a consent to any subsequent transfer or sublease, or be a
release of Tenant from any obligation under this Lease.
12.9 ASSUMPTION OF OBLIGATIONS. Each transferee of this Lease shall assume all
obligations of Tenant under this Lease and shall be and remain liable jointly
and severally with Tenant for the payment of the Rent and the performance of all
the terms, covenants, conditions and agreements herein contained on Tenant's
part to be performed for the term of this Lease. No transfer shall be binding on
Landlord unless the transferee or Tenant delivers to Landlord a counterpart of
the instrument of transfer which contains a covenant of assumption by the
transferee reasonably satisfactory in substance and form to Landlord, consistent
with the above requirements. The failure or refusal of the transferee to execute
such instrument of assumption shall not release or discharge the transferee from
its liability to Landlord hereunder. Landlord shall have no obligation
whatsoever to perform any duty to or respond to any request from any subtenant,
it being the obligation of Tenant to administer the terms of its sublease.
12.10 DEEMED TRANSFERS. If the Tenant is a nonpublicly traded corporation, or is
an unincorporated association or partnership, the transfer, sale, exchange,
assignment or hypothecation of any stock or interest in such corporation,
association or partnership in the aggregate in excess of fifty percent (50%)
shall be deemed to be a transfer of this Lease and shall be subject to the
provisions of this paragraph 12.
12.11 ASSIGNMENT BY OPERATION OF LAW. No interest of Tenant in this Lease shall
be assignable by operation of law.
12.12 ASSIGNMENT OF SUBLEASE RENTS. Tenant immediately and irrevocably assigns
to Landlord, as security for Tenant's obligations under this Lease, all rent
from any subletting of all or any part of the Premises, and Landlord, as
assignee and as attorney-in-fact for Tenant for purposes hereof, or a receiver
for Tenant appointed on Landlord's application, may collect such rents and apply
same toward Tenant's obligations under this Lease, except that, until the
occurrence of an act of default (beyond applicable notice and grace periods) by
Tenant, Tenant shall have the right and license to collect such rents.
12.13 PROHIBITION OF ASSIGNMENT TO PARTY IN INTEREST OF ERISA PARTY. If Landlord
is an ERISA Party (see paragraph 1.16) or an ERISA Party subsequently becomes
Landlord hereunder and Tenant is
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notified of such event, Tenant shall inquire of any prospective transferee or
subtenant whether it is a "party in interest," as that term is defined in
Section 3 (14) of ERISA, as to Landlord. Tenant shall not transfer this Lease or
sublet any part of the Premises to a person or entity that Tenant knows or
reasonably should know is a "party in interest," as that term is defined in
Section 3(14) of ERISA, as to Landlord.
13. DEFAULT; REMEDIES.
13.1 DEFAULT. The occurrence of any one or more of the following events shall
constitute a material default of this Lease by Tenant:
(a) The failure by Tenant to pay Rent or make any other
payment required to be made by Tenant hereunder, as and when due, where
such failure shall continue for a period of 5 days after written
notice. In the event that Landlord serves Tenant with a notice
regarding such nonpayment pursuant to any applicable summary eviction
statute, such notice shall also constitute the notice required by this
subparagraph. Landlord need not give such notice more than two (2)
times in any 12-month period, and during any 12-month period in which
two (2) such notices have been given, the grace period shall be reduced
to three (3) days after the Rent or other payment was due.
(b) The failure by Tenant to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or
performed by Tenant other than those referenced in subparagraphs 13.1
(a) and 13.1(f) where such failure shall continue for a period of
thirty (30) days after written notice thereof from Landlord to Tenant,
provided, however, that if the nature of Tenant's noncompliance is such
that more than thirty (30) days are reasonably required for its cure,
then Tenant shall not be deemed to be in default if Tenant commences
such cure within said thirty (30) days and thereafter diligently
pursues such cure to completion. To the extent permitted by law, such
thirty (30) day notice shall constitute the sole notice required to be
given to Tenant under any applicable summary eviction statute. It is
understood that failure of Tenant to cure defaults under paragraphs
7.3, 12.1 and 30.2 after the expiration of the notice and grace periods
set forth in this paragraph 13.1(b) is a material default.
(c) (i) The making by Tenant of any arrangement or assignment
for the benefit of creditors; (ii) Tenant becoming a "debtor" as
defined in the Bankruptcy Code or any successor statute, (unless, in
the case of a petition filed against Tenant, the same is dismissed or
stayed within sixty (60) days); (iii) the appointment of a trustee or
receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, where
possession is not restored to Tenant within sixty (60) days; or (iv)
the attachment, execution or other judicial seizure of substantially
all of Tenant's assets located at the Premises or of Tenant's interest
in this Lease, where such seizure is not discharged within sixty (60)
days, all of which are hereby deemed to be non-curable defaults without
the necessity of any notice by Landlord to Tenant thereof.
(d) The existence of materially false information in any
financial statement given to Landlord by Tenant, or its successor in
interest or by any guarantor of any of Tenant's obligations hereunder,
all of which are hereby deemed to be non-curable defaults without the
necessity of any notice by Landlord to Tenant thereof.
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(e) The default by Tenant or any guarantor of Tenant under
this Lease under any other lease with Landlord.
(f) The breach by Tenant of paragraphs 25 or 33. It is
understood that no notice need be given by Landlord to Tenant of a
default under paragraphs 25 or 33.
13.2 REMEDIES. In the event of any material default of this Lease by Tenant,
Landlord may at any time thereafter, with or without notice or demand and
without limiting Landlord in the exercise of any right or remedy which Landlord
may have by reason of such default:
(a) Terminate this Lease and Tenant's right to possession of
the Premises by any lawful means, in which case Tenant shall
immediately surrender possession of the Premises to Landlord. In such
event, Landlord shall be entitled to recover from Tenant all damages
incurred by Landlord by reason of Tenant's default including, but not
limited to, the cost of recovering possession of the Premises; expenses
of reletting, including necessary renovation and alteration of the
Premises, reasonable attorney's fees, and any real estate commission
actually paid; the worth at the time of award by the court having
jurisdiction thereof of the amount by which the unpaid Rent for the
balance of the term after the time of such award exceeds the amount of
Rent loss for the same period that Tenant proves could be reasonably
avoided; that portion of the leasing commission paid by Landlord
pursuant to paragraph 15, applicable to the unexpired term of the
Lease. No payment by Tenant after termination of this Lease following
default by Tenant shall reinstate the Lease. Neither shall the receipt
and retention of any such payment by Landlord reinstate the Lease.
(b) Without terminating this Lease, re-enter and take
possession of the Premises or any part thereof and expel Tenant and
those claiming through or under Tenant, and remove the effects of both
or either, and relet the Premises, or any part thereof, in Landlord's
or Tenant's name, but for the account of Tenant. In such event, Tenant
shall in no manner be relieved from liability for payment of Rent
covering the balance of the term of this Lease, and Landlord's retaking
shall not be considered an acceptance of the Premises nor a
manifestation of an intent to terminate this Lease. Amounts collected
from new tenants shall be applied to amounts due from Tenant.
(c) Maintain Tenant's right to possession, in which case this
Lease shall continue in effect whether or not Tenant shall have vacated
or abandoned the Premises. In such event, Landlord shall be entitled to
enforce all of Landlord's rights and remedies under this Lease,
including the right to recover the Rent as it becomes due hereunder.
(d) Whenever not prohibited by the law of the state in which
the Premises is located, when this Lease and the term or any extension
or renewal thereof shall have been terminated on account of default by
Tenant, or when the term hereby created or any extension or renewal
thereof shall have expired, it shall be lawful for an attorney for any
court of record to appear as attorney for Tenant as well as for all
persons claiming by, through or under Tenant, and to sign an agreement
for entering in any competent court action in ejectment and judgment
against Tenant and all persons claiming by, through or under Tenant and
therein confess judgment for the recovery by Landlord of possession of
the Premises, for which this Lease shall be sufficient warrant;
thereupon if Landlord so desires, an appropriate writ of possession may
issue forthwith, without any prior writ or proceeding whatsoever, and
provided that if for any reason after such action shall have been
commenced, it shall be determined and possession of the Premises remain
25
in or be restored to Tenant, Landlord shall have the right, for the
same default and upon any subsequent default or defaults, or upon the
termination of this Lease or Tenant's right of possession as
hereinbefore set forth, to bring one or more further action or actions
are hereinbefore set forth to recover possession of the Premises and
confess judgment as hereinbefore provided.
(e) To require Tenant to pay immediately the rent reserved for
the entire unexpired portion of the term of this Lease, discounted at a
rate of five percent (5%) per annum, as if such rent were payable in
advance.
(f) Pursue any other remedy now or hereafter available to
Landlord under the laws or judicial decisions of the state wherein the
Premises are located.
13.3 DEFAULT BY LANDLORD. Landlord shall not be in default unless Landlord fails
to perform obligations required of Landlord within a reasonable time, but in no
event later than thirty (30) days after written notice by Tenant to Landlord and
to the holder of any first mortgage or deed of trust covering the Premises whose
name and address shall have theretofore been furnished to Tenant in writing,
specifying wherein Landlord has failed to perform such obligation; provided
however, that if the nature of Landlord's obligation is such that more than
thirty (30) days are required for performance, then Landlord shall not be in
default if Landlord commences performance within such thirty (30) day period and
thereafter diligently pursues the same to completion.
13.4 LATE CHARGES. Tenant hereby acknowledges that late payment by Tenant to
Landlord of Base Rent, Tenant's Share of Operating Expense Increase or other
sums due hereunder will cause Landlord to incur costs not contemplated by this
Lease, the exact amount of which will be extremely difficult to ascertain. Such
costs include, but are not limited to, processing and accounting charges, and
late charges which may be imposed on Landlord by the terms of any mortgage or
trust deed covering the Office Building Project. Accordingly, if any installment
of Base Rent, Operating Expense Increase, or any other sum due from Tenant shall
not be received by Landlord or Landlord's designee within ten (10) days after
such amount shall be due, then, upon notice to Tenant, Tenant shall pay to
Landlord a late charge equal to six percent (6%) of such overdue amount, but not
to exceed the maximum late charge permitted by law in the jurisdiction where the
Office Building Project is located. The parties hereby agree that such late
charge represents a fair and reasonable estimate of the costs Landlord will
incur by reason of late payment by Tenant. Acceptance of such late charge by
Landlord shall in no event constitute a waiver of Tenant's default with respect
to such overdue amount, nor prevent Landlord from exercising any of the other
rights and remedies granted hereunder. This late charge shall not apply to
accelerated rent under Paragraph 13.2.
13.5 INTEREST ON PAST-DUE OBLIGATIONS. Any amount not paid by Tenant to Landlord
when due shall bear interest from the date due at the Prime Rate of PNC Bank
plus 2%, except that interest shall not be payable on any late charge and
interest on any amount upon which a late charge is payable shall not commence to
accrue until thirty (30) days after the date due. Payment of interest shall not
excuse or cure any default by Tenant.
14. CONDEMNATION. If the Premises or any portion thereof or the Office Building
Project are taken under the power of eminent domain, or sold under the threat of
the exercise of said power (all of which are herein called "condemnation"), this
Lease shall terminate as to the part so taken as of the date the condemning
authority takes title or possession, whichever first occurs; provided that if so
much of the
26
Premises or the Office Building Project is taken by such condemnation as would
materially adversely affect Tenant's use of the Premises, Tenant shall have the
option, to be exercised only in writing within thirty (30) days after the
condemning authority shall have taken possession, to terminate this Lease as of
the date the condemning authority takes such possession. If Tenant does not
terminate this Lease in accordance with the foregoing, this Lease shall remain
in full force and effect as to the portion of the Premises remaining, except
that the Rent and Tenant's Share of Operating Expense Increase shall be
equitably reduced in proportion to the adverse effect on Tenant's use of the
Premises. Common Areas taken shall be excluded from the Common Areas usable by
Tenant and no reduction of Rent shall occur with respect thereto or by reason
thereof. Landlord shall have the option in its sole discretion to terminate this
Lease as of the taking of possession of a material portion of the Office
Building Project by the condemning authority, by giving written notice to Tenant
of such election within thirty (30) days after receipt of notice of a taking by
condemnation of such part of the Office Building Project; provided, that it also
terminates the leases of similarly affected tenants. Any award for the taking of
all or any part of the Premises or the Office Building Project under the power
of eminent domain or any payment made under threat of the exercise of such power
shall be the property of Landlord, whether such award shall be made as
compensation for diminution in value of the leasehold or for the taking of the
fee, or as severance damages; provided, however, that Tenant shall be entitled
to pursue and obtain any separate award for moving expenses, relocation costs,
loss of or damage to Tenant's trade fixtures, removable personal property and
unamortized tenant improvements that have been paid for by Tenant. For that
purpose, the cost of such improvements shall be amortized over the original term
of the lease excluding any options. In the event that this Lease is not
terminated by reason of such condemnation, Landlord shall, to the extent of
damages received by Landlord in connection with such condemnation, repair any
damage to the Premises caused by such condemnation except to the extent that
Tenant has been reimbursed therefor by the condemning authority.
15. BROKER'S FEE.
(a) Subject to the execution of this Lease by both parties,
Landlord shall pay to the Listing Broker and the Cooperating Broker, if
any, designated in paragraphs 1.14 and 1.15 of this Lease jointly, or
in such separate shares as they may mutually designate in writing, a
fee as set forth in a separate agreement between Landlord and the
Listing Broker.
(b) Tenant and Landlord each represent and warrant to the
other that neither has had any dealing with any person, firm, broker or
finder (other than the person(s), if any, whose names are set forth in
paragraphs 1.14 and 1.15) in connection with the negotiation of this
Lease or the consummation of the transaction contemplated hereby, and
no other broker or other person, firm or entity is entitled to any
commission or finder's fee in connection with said transaction and
Tenant and Landlord do each hereby indemnify and hold the other
harmless from and against any costs, expenses, reasonable attorneys'
fees or liability for compensation or charges which may be claimed by
any such unnamed broker, finder or other similar party by reason of any
dealings or actions of the indemnifying party.
16. ESTOPPEL CERTIFICATES.
(a) Each party ("responding party") shall at any time upon not
less than ten (10) business days prior written notice from the other
party ("requesting party") execute, acknowledge and deliver to the
requesting party a statement in writing (i) certifying that this Lease
is
27
unmodified and in full force and effect (or, if modified, stating the
nature of such modification and certifying that this Lease, as so
modified, is in full force and effect) and the date to which the rent
and other charges are paid in advance, if any, and (ii) acknowledging
that there are not, to the responding party's knowledge, any uncured
defaults on the part of the requesting party, or specifying such
defaults if any are claimed. Any such statement may be conclusively
relied upon by any prospective purchaser or encumbrancer of the Office
Building Project or of the business of Tenant.
(b) At the requesting party's option, the responding party's
failure to deliver such statement within such time shall be a material
default of this Lease, without any further notice to such party, or it
shall be conclusive upon such party that (i) this Lease is in full
force and effect, without modification except as may be represented by
the requesting party, (ii) there are no uncured defaults in the
requesting party's performance, and (iii) if Landlord is the requesting
party, not more than one month's rent has been paid in advance.
(c) If Landlord desires to finance, refinance or sell the
Office Building Project, or any part thereof, Tenant hereby agrees to
deliver to any lender or purchaser designated by Landlord such Form
10-Q and Form 10-K reports of Tenant as may be reasonably required by
such lender or purchaser. All financial statements and information
shall be received by Landlord and such lender or purchaser in
confidence and shall be used only for the purposes herein set forth.
17. LANDLORD'S LIABILITY. The term "Landlord" as used herein shall mean only the
owner or owners, at the time in question, of the fee title or the leasehold
interest under a ground lease of the Office Building Project. In the event of
any transfer of such title or interest, Landlord herein named (and in case of
any subsequent transfers then the grantor) shall be relieved from and after the
date of such transfer of all liability as respects Landlord's obligations
thereafter accruing, provided that any funds in the hands of Landlord or the
then grantor at the time of such transfer, in which Tenant has an interest,
shall be delivered to the grantee. The obligations contained in this Lease to be
performed by Landlord shall be binding on Landlord's successors and assigns,
only during their respective periods of ownership.
18. SEVERABILITY. The invalidity of any provision of this Lease as determined by
a court of competent jurisdiction shall in no way affect the validity of any
other provision hereof.
19. FORCE MAJEURE. Any obligation of a party which is delayed or not performed
due to an act of God, strike, riot, shortage of labor or materials, war (whether
declared or undeclared), laws, governmental regulations or restrictions or any
other governmental action or inaction, or any other cause of any kind whatsoever
which is beyond such party's reasonable control, shall not constitute a default
hereunder and shall be performed within a reasonable time after the end of the
cause for delay or non-performance. Notwithstanding the foregoing, this
provision shall not be deemed to extend the period of time within which Tenant
may pay Rent, or the time limits set forth in paragraphs 3.2, 9 or 11.5.
20. TIME IS OF ESSENCE. Time is of the essence with respect to the obligations
to be performed under this Lease.
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21. ADDITIONAL RENT. All monetary obligations of Tenant to Landlord under the
terms of this Lease, including but not limited to any expenses payable by Tenant
hereunder, shall be deemed to be rent.
22. INCORPORATION OF PRIOR AGREEMENT; AMENDMENTS. This Lease contains all
agreements of the parties with respect to any matter mentioned herein. No prior
or contemporaneous agreement or understanding pertaining to any such matter
shall be effective. This Lease may be modified in writing only, signed by the
parties in interest at the time of the modification. Except as otherwise stated
in this Lease, Tenant hereby acknowledges that neither the Listing Broker nor
the Cooperating Broker, if any, designated in paragraphs 1.14 and 1.15 nor the
Landlord or any employee or agent of any of said persons has made any oral or
written warranties or representations to Tenant relative to the condition or use
by Tenant of the Premises or the Office Building Project and Tenant acknowledges
that Tenant assumes all responsibility regarding the Occupational Safety Health
Act, the Americans with Disabilities Act (subject to the provisions of paragraph
1.17 and paragraph 7.5(a) or (b), and 7.2 A, as the case may be), the legal use
and adaptability of the Premises and the compliance thereof with all applicable
laws and regulations in effect during the term of this Lease.
23. NOTICES. Any notice required or permitted to be given hereunder shall be in
writing and may be given by personal delivery or by certified or registered mail
(provided that notice of exercise of any Option, as defined in paragraph 39,
must in all events be given by certified or registered mail) addressed to a
party at the address beneath such party's signature on this Lease or such other
address for notice purposes as may be later specified by notice to the other
party, except that upon Tenant's taking possession of the Premises, the Premises
shall constitute Tenant's address for notice purposes. Mailed notices shall be
deemed given upon actual receipt at the address required, or forty-eight hours
following deposit in the mail, postage prepaid, whichever first occurs. A copy
of all notices required or permitted to be given to Landlord hereunder shall be
concurrently transmitted to such other party or parties at such addresses as
Landlord may from time to time hereafter designate by notice to Tenant.
24. WAIVERS. No waiver by a party of any provision hereof shall be deemed a
waiver of any other provision or of any subsequent breach by the other of the
same or any other provision. Landlord's consent to, or approval of, any act
shall not be deemed to render unnecessary the obtaining of Landlord's consent to
or approval of any subsequent act by Tenant. The acceptance of rent by Landlord
shall not be a waiver of any preceding breach of this Lease by Tenant, other
than Tenant's failure to pay the particular rent so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
rent.
25. VACATION OR ABANDONMENT OF PREMISES. Tenant shall not vacate or abandon the
Premises. Abandonment of the Premises shall include the failure to occupy the
Premises for a continuous period of sixty (60) days or more, whether or not the
Rent is paid.
26. HOLDING OVER. If Tenant, with Landlord's consent, remains in possession of
all or any part of the Premises after the expiration of the term of this Lease,
such occupancy shall be a tenancy from month-to-month upon all of the provisions
of this Lease pertaining to the obligations of Tenant, except that the Base Rent
payable shall be one hundred fifty percent (150%) of the Base Rent payable
immediately preceding the expiration of the term.
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27. CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
28. COVENANTS AND CONDITIONS. Each provision of this Lease to be performed by
Tenant shall be deemed both a covenant and a condition.
29. BINDING EFFECT; CHOICE OF LAW. Subject to any provisions hereof restricting
assignment or subletting by Tenant and subject to the provisions of paragraph
17, this Lease shall bind the parties, their personal representatives,
successors and assigns. This Lease shall be governed by the laws of the State
where the Office Building Project is located and any litigation concerning this
Lease between the parties hereto shall be initiated in the county in which the
Office Building Project is located.
30. SUBORDINATION.
30.1 This Lease, including but not limited to any Option, as defined in
paragraph 39, shall, at Landlord's option, be subordinate to any ground lease,
mortgage, trust deed, or any other security interest now or hereafter affecting
the Office Building Project and to any and all advances made on the security
thereof and to all renewals, modifications, consolidations, replacements and
extensions thereof. Notwithstanding such subordination, Tenant's right to quiet
possession of the Premises pursuant to the terms of this Lease shall not be
disturbed if Tenant is not in default and so long as Tenant shall pay the Rent
and observe and perform all of the provisions of this Lease (subject to
applicable notice and grace periods), unless this Lease is otherwise terminated
pursuant to its terms. If any ground lessor or the holder of any mortgage ,
trust deed or other security interest shall elect to have this Lease prior to
its ground lease, mortgage, trust deed or other security interest, and shall
give written notice thereof to Tenant, this Lease shall be deemed prior to such
ground lease, mortgage, trust deed or other security interest, whether this
Lease is dated prior or subsequent to the date of said ground lease, mortgage,
trust deed or other security interest or the date of recording thereof. Upon
termination of any ground lease or foreclosure of any mortgage, deed of trust or
other security interest, Tenant shall attorn to the ground lessor or any
purchaser upon foreclosure. Landlord represents and warrants that as of the date
of Tender of Possession no ground lease, mortgage, trust deed or other security
interest affects the Office Building.
30.2 Tenant agrees to execute any documents reasonably required to effectuate a
subordination or attornment, or to make this Lease prior to any ground lease,
mortgage, trust deed or other security interest, if requested by the ground
lessor or holder of the mortgage, trust deed or other security interest, subject
to the nondisturbance provisions set forth above. Tenant's failure to execute
such documents within ten (10) business days after written demand shall
constitute a material default by Tenant hereunder without further notice to
Tenant or, at Landlord's option, Landlord may execute such documents on behalf
of Tenant as Tenant's attorney-in-fact. Tenant does hereby make, constitute and
irrevocably appoint Landlord as Tenant's attorney-in-fact and in Tenant's name,
place and stead, to execute such documents.
31. ATTORNEYS' FEES. If either party brings any lawsuit to enforce or declare
rights under this Lease, the prevailing party in the action, including any
appeal, shall be entitled to reasonable attorneys' fees paid by the losing party
as fixed by the court in the same or a separate proceeding, whether or not such
action is pursued to decision or judgment. The attorneys' fee award shall not be
computed in accordance with
30
any court fee schedule, but shall be such as to fully reimburse all attorneys'
fees reasonably incurred in good faith. Landlord shall be entitled to reasonable
attorneys' fees and all other costs and expenses reasonably incurred in the
preparation and service of notice of default beyond the expiration of applicable
notice and grace periods and consultations in connection therewith, whether or
not a legal action is subsequently commenced.
32. LANDLORD'S ACCESS.
32.1 Landlord and Landlord's agents shall have the right to enter the Premises
at reasonable times, upon prior notice except in the case of emergency, for the
purpose of inspecting the same, performing any services required of Landlord,
showing the same to prospective purchasers, lenders, or lessees, taking such
measures, erecting such scaffolding or other necessary structures, making such
alterations, repairs, improvements or additions to the Premises or to the Office
Building Project as Landlord may reasonably deem necessary or desirable and the
erecting, using and maintaining of utilities, services, pipes and conduits
through the Premises and/or other premises as long as there is no material
adverse effect on Tenant's use of the Premises. Landlord may at any time place
on or about the Premises, the Building or the Office Building Project "For Sale"
signs and Landlord may at any time during the last 120 days of the term place on
or about the Premises "For Lease" signs.
32.2 Subject to paragraph 11.5, all activities of Landlord pursuant to paragraph
32 shall be without abatement of Rent and Landlord shall not have any liability
to Tenant for the same; provided Landlord has used reasonable care.
32.3 Landlord shall have the right to retain keys to the Premises and to unlock
all doors in or upon the Premises other than files, vaults and safes, and in the
case of emergency to enter the Premises by any reasonably appropriate means, and
any such entry shall not be deemed a forcible or unlawful entry or detainer of
the Premises or an eviction. Tenant waives any charges for damages or injuries
or interference with Tenant's property or business in connection therewith;
provided Landlord has used reasonable care.
33. AUCTIONS, OTHER SALES AND CESSATION OF BUSINESS. Tenant shall not conduct,
nor permit to be conducted, either voluntarily or involuntarily, any auction
upon the Premises or the Common Areas without Landlord's prior written consent.
Notwithstanding anything to the contrary in this Lease, Landlord shall not be
obligated to exercise any standard of reasonableness in determining whether to
grant such consent. Tenant shall not make a bulk sale of its goods or move, or
attempt to or threaten to move its goods and equipment out of the Premises
(other than in the ordinary course of business) or cease to conduct business
from the Premises.
34. SIGNS. Tenant shall not place any sign upon the Premises or the Office
Building Project without Landlord's prior written consent. Under no
circumstances shall Tenant place a sign on any roof of the Office Building
Project. Landlord shall provide a listing for Tenant in the building directory.
35. MERGER. The voluntary or other surrender or mutual cancellation or
termination by Landlord of this Lease shall not work a merger, but shall, at the
option of Landlord, terminate all or any subtenancies or may, at the option of
Landlord, operate as an assignment to Landlord of any or all subtenancies.
31
36. CONSENTS. Except for paragraphs 33 (Auctions, Other Sales and Cessation of
Business), 34 (Signs), and 49 (Hazardous Material) as it relates to causing or
permitting any Hazardous Material to be brought upon, kept or used in or about
the Premises, wherever in this Lease the consent of one party is required to an
act of the other party such consent shall not be unreasonably withheld or
delayed.
37. GUARANTOR. In the event that there is a guarantor of this Lease, the
guarantor shall have the same obligations as Tenant under this Lease.
38. QUIET POSSESSION. Upon Tenant paying the rent for the Premises and observing
and performing all of the covenants, conditions and provisions on Tenant's part
to be observed and performed hereunder (subject to applicable notice and grace
periods) , Tenant shall have quiet possession of the Premises for the entire
term subject to all of the provisions of this Lease.
39. OPTIONS.
39.1 Provided that Tenant is not in default of this Lease beyond applicable
notice and grace periods, Tenant shall have the option to renew this Lease, upon
the same terms and conditions, except for the amount of Base Rent, for two (2)
additional periods of three (3) years each at the then current fair market rent.
In order to exercise said option to renew, Tenant shall give Landlord six (6)
months written notice before the expiration of the initial Term, or the first
option Term, if applicable, of the intent to renew, failing which, Tenant's
option to renew shall be null and void and of no further effect.
39.2 Options Personal. The term "Option" as used in this Lease refers to any
option to extend, renew or expand and to any right of first refusal or first
offer granted to Tenant. Each Option is personal to the original Tenant and any
successor thereto by merger or consolidation or purchase and may be exercised
only by such party while occupying the Premises without the intent of thereafter
assigning this Lease or subletting the Premises or any portion thereof, and may
not be, voluntarily or involuntarily, exercised by or assigned to any other
person or entity. Options shall not be assignable separate and apart from this
Lease, and may not be separated from this Lease in any manner, by reservation or
otherwise.
39.3 MULTIPLE OPTIONS. If Tenant has multiple options to extend or renew this
Lease, a later option cannot be exercised unless the prior option to extend or
renew has been exercised.
39.4 EFFECT OF DEFAULT ON OPTIONS.
(a) Tenant shall have no right to exercise any Option,
notwithstanding any provision in the grant of the Option to the
contrary, from the date Landlord gives Tenant notice of a default until
the default is cured; provided, that this cure right shall not apply to
any bankruptcy declared by Tenant. The period of time within which an
Option may be exercised shall not be extended by reason of Tenant's
inability to exercise an option because of the provisions of this
paragraph.
(b) All rights of Tenant under the provisions of any Option
shall terminate and be of no further force or effect, notwithstanding
Tenant's due and timely exercise of the Option, if after such exercise
Tenant fails to cure a default when required after notice given
pursuant to paragraph 13.1.
32
40. SECURITY MEASURES-LANDLORD'S RESERVATIONS.
40.1 Except as otherwise provided in this Lease, Tenant hereby acknowledges that
Landlord shall have no obligation whatsoever to provide guard service or other
security measures for the benefit of the Premises or the Office Building
Project, and Tenant assumes all responsibility for the protection of Tenant and
its agents and invitees and the property of Tenant and its agents and invitees
from acts of third parties. Nothing herein contained shall prevent Landlord, at
Landlord's sole option, from providing security protection for the Office
Building Project or any part thereof, in which event the cost thereof shall be
included within the definition of Operating Expenses, as set forth in paragraph
4.2(b).
40.2 LANDLORD SHALL HAVE THE FOLLOWING RIGHTS:
(a) To change the name, address or title of the Office
Building Project or the Building upon not less than 90 days prior
written notice;
(b) To grant to any lessee of the Office Building Project the
exclusive right to conduct any business as long as such exclusive right
does not conflict with any rights expressly given herein;
(c) To place such signs, notices or displays as Landlord
reasonably deems necessary or advisable upon the roof and exterior of
the Office Building Project or on pole signs in the Common Areas.
(d) To provide and install Building standard graphics on the
door of the Premises and such portion of the Common Areas as Landlord
shall reasonably deem appropriate.
40.3 TENANT SHALL NOT:
(a) Use a representation (photographic or otherwise) of the
Building or the Office Building Project or their name(s) in connection
with Tenant's business;
(b) Consent to or permit anyone, except in emergency, to go
upon the roof of the Building.
41. EASEMENTS.
41.1 Landlord reserves the right, from time to time, to grant easements and
rights, make dedications, agree to restrictions and record maps affecting the
Office Building Project as Landlord may deem necessary or desirable, so long as
such easements, rights, dedications, restrictions and maps do not unreasonably
interfere with the use of the Premises by Tenant, or otherwise impose any
obligations on Tenant. Tenant shall sign any of the aforementioned documents
within ten (10) business days after request by Landlord, and failure to do so
shall constitute a material default of this Lease by Tenant without the need for
further notice to Tenant.
41.2 The obstruction of Tenant's view, air, or light by any structure erected in
the vicinity of the Building, whether by Landlord or third parties, shall in no
way affect this Lease or impose any liability upon Landlord.
33
42. PERFORMANCE. If at any time a dispute shall arise as to any amount or sum of
money to be paid by one party to the other under the provisions hereof, the
party against whom the obligation to pay the money is asserted shall have the
right to make payment "under protest" and such payment shall not be regarded as
a voluntary payment, and there shall survive the right on the part of said party
to institute suit for recovery of such sum. If it shall be adjudged that there
was no legal obligation on the part of said party to pay such sum or any part
thereof, said party shall be entitled to recover such sum or so much thereof as
it was not legally required to pay under the provisions of this Lease.
43. AUTHORITY. If Tenant is a corporation, trust, limited liability company or
general or limited partnership, Tenant, and each individual executing this Lease
on behalf of such entity represent and warrant that such individual is duly
authorized to execute and deliver this Lease on behalf of said entity and shall,
within thirty (30) days after execution of this Lease, deliver to Landlord
evidence of such authority reasonably satisfactory to Landlord.
44. CONFLICT. Any conflict between the printed provisions, Exhibits or Addenda
of this Lease and the typewritten or handwritten provisions, if any, shall be
controlled by the typewritten or handwritten provisions.
45. NO OFFER. Preparation of this Lease by Landlord or Landlord's agent and
submission of same to Tenant shall not be deemed an offer to Tenant to lease.
This Lease shall become binding upon Landlord and Tenant only when fully
executed by both parties.
46. LENDER MODIFICATION. Tenant agrees to make such reasonable modifications to
this Lease as may be reasonably required by an institutional lender in
connection with the obtaining of normal financing or refinancing of the Office
Building Project.; provided, that none of the same shall increase Tenant's
obligations or decrease its rights under the Lease.
47. MULTIPLE PARTIES. If more than one person or entity is named as either
Landlord or Tenant herein, except as otherwise expressly provided herein, the
obligations of the Landlord or Tenant herein shall be the joint and several
responsibility of all persons or entities named herein as such Landlord or
Tenant, respectively.
48. (Deleted)
49. HAZARDOUS MATERIAL. Tenant shall not cause or permit any Hazardous Material
(as hereinafter defined) to be brought upon, kept or used in or about the
Premises by Tenant, its agents, employees, contractors or invitees, without the
prior written consent of Landlord, which consent may be granted or withheld in
Landlord's sole discretion. For the purpose of this Lease, "Hazardous Material"
shall include oil, flammable explosives, asbestos, urea formaldehyde,
radioactive materials or waste, or other hazardous, toxic, contaminated or
polluting materials, substances or wastes, including, without limitation, any
"hazardous substances," "hazardous wastes," "hazardous materials" or "toxic
substances"
34
as such terms are defined in the Resource Conservation and Recovery Act and the
Comprehensive Environmental Response, Compensation and Liability Act, and in any
other law, ordinance, rule, regulation or order promulgated by the federal or
state government, or any other governmental entity having jurisdiction over the
Office Building Project or the parties to this Lease. If Tenant breaches the
obligations set forth in this paragraph, or if the presence of Hazardous
Material in the Premises or at the Office Building Project caused or permitted
by Tenant (whether or not Landlord has given its consent to the presence of such
Hazardous Material in the Premises) results in contamination of the Premises or
any other part of the Office Building Project, or if contamination of the Office
Building Project by Hazardous Material otherwise occurs for which Tenant is
legally liable, then Tenant shall indemnify, defend and hold Landlord harmless
from any and all claims, judgments, damages, penalties, fines, assessments,
costs, liabilities or losses, including, without limitation, diminution in value
of the Office Building Project, damages for the loss or restriction on use of
rentable or useable space or floor area in or of any amenity of the Office
Building Project, damages arising from any adverse impact on leasing space in
the Office Building Project, sums paid in settlement of claims, and any
reasonable attorneys' fees, consultant fees and expert fees which arise during
or after the term of this Lease as a result of such contamination. This
indemnification of Landlord by Tenant shall survive expiration or termination of
this Lease and includes, without limitation, costs incurred in connection with
any investigation of site conditions or any cleanup, remedial, removal or
restoration work required by any federal, state or local governmental agency or
political subdivision because of Hazardous Material present in, on or under the
Premises. Without limiting the foregoing, if the presence of any Hazardous
Material caused or permitted by Tenant or its agents, employees, contractors or
invitees, results in any contamination of the Office Building Project, Tenant
shall promptly take all actions, at its sole expense, as are necessary to return
the Office Building Project to the condition existing prior to the introduction
of any such Hazardous Material; provided that Landlord's approval, and that of
any ground lessor or mortgagee of Landlord, of such actions shall first be
obtained, which approval shall not be unreasonably withheld or delayed so long
as such actions would not potentially have any material adverse long-term or
short-term effects on the Office Building Project. Tenant shall promptly notify
Landlord of any such contamination. Notwithstanding the foregoing, Tenant may
use normal cleaning and office supplies and equipment on the Premises if it does
so in accordance with all applicable law.
50. ATTACHMENTS. Attached hereto are the following documents which constitute a
part of this Lease.
EXHIBIT A: Floor Plan.
EXHIBIT B: Rules And Regulations.
EXHIBIT C. Work Letter.
EXHIBIT D. Disclosure and Waiver Relating to Confession of Judgement
and Execution Proceedings.
51. LIABILITY OF LANDLORD. The liability of Landlord and all officers,
directors, shareholders, partners, members and employees of Landlord to Tenant
for any default by Landlord under the terms of this Lease shall be limited to
the interest of Landlord in the Office Building Project, and Landlord or any
officer, director, shareholder, partner, member or employee of Landlord shall
not be personally liable for any deficiency. The foregoing limitation shall not
apply to misapplication of any security deposit, or any casualty or condemnation
proceeds.
35
LANDLORD AND TENANT HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH
PROVISION IN IT AND BY EXECUTING IT, SHOW THEIR INFORMED AND VOLUNTARY CONSENT.
THE PARTIES AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, ITS TERMS ARE
COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LANDLORD AND
TENANT WITH RESPECT TO THE PREMISES.
This Lease has been prepared for submission to your attorney for approval; no
representation or recommendation is made as to the legal sufficiency, legal
effect, or tax consequences of this Lease or the transaction relating thereto;
the parties shall rely solely upon the advice of their own legal counsel as to
the legal and tax consequences of this issue.
LANDLORD: K/B Fund II, a Delaware general partnership
By: K/B Opportunity Fund II, L.P. a
Delaware limited partnership, its general
partner
By: KB Opportunity Investors, a California
general partnership
By: Xxxx Investment Management, Inc. d/b/a/
K/B Realty Advisors, a California
corporation
WITNESSES: Its: Authorized Agent
By: /s/ Xxxx Xxxxxx
-------------------- -----------------------------
Xxxx Xxxxxx
-------------------- Its: Vice President
0000 00xx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
TENANT: EPL Technologies, Inc., a Colorado
corporation
WITNESSES:
By: Xxxx Xxxxxx
-------------------- -----------------------------
Title: CEO
-------------------- ----------------------------
36
EXHIBIT A
Exhibit 10.10
[FLOORPLAN DIAGRAM]
37
EXHIBIT A
EPL TECHNOLOGIES, INC. is situated on the second floor of a six story building.
The total area of the suite is 6,674 rentable square feet. The suite contains
the following rooms: 6 private offices at 13' x 10'; an executive office at 23'
x 19'; a large conference room at 29' x 15'; a small conference room at 12' x
15'; a phone/storage room at 8' x 15'; a file room at 13' x 19'; a lunch room
with sink at 13' x 10'; a shower room at 13' x 5'; a bullpen area at 25' x 20'
and a large bullpen area at 31' x 55'.
The basis finish is as follows: 2' x 5' acoustic tile and grid at 9' 6" above
finished floor; 2' x 4' florescent lighting; walls are painted and drywalled
except for the executive office and large conference room which has vinyl wall
covering. Doors are solid core flush and hollow metal painted frames; 26 oz.
Level loop direct glue carpet and 4" vinyl case; the building has a 100% wet
sprinkler system; the center bullpen areas have built-in cubicles and plastic
laminate work counters; the suite has a battery back-up exit and energy
lighting.
38
EXHIBIT B
RULES AND REGULATIONS FOR
STANDARD OFFICE LEASE
(ALL RULES AND REGULATIONS ARE SUBJECT TO THE PROVISIONS OF THE LEASE)
Dated:
By and Between: K/B Fund II and EPL Technologies, Inc.
GENERAL RULES
1. Tenant shall not suffer or permit the obstruction of any Common Areas,
including driveways, walkways and stairways.
2. Landlord reserves the right to refuse access to any persons Landlord in
good faith judges to be a threat to the safety, reputation, or property
of the Office Building Project and its occupants.
3. Tenant shall not make or permit any noise or odors that unreasonably
annoy or interfere with other lessees or persons having business within
the Office Building Project.
4. Tenant shall not keep animals or birds within the Office Building
Project, and shall not bring bicycles, motorcycles or other vehicles
into areas not designated as authorized for same.
5. Tenant shall not make, suffer or permit litter except in appropriate
receptacles for that purpose.
6. Tenant shall not alter any lock or install new or additional locks or
bolts.
7. Tenant shall be responsible for the inappropriate use of any toilet
rooms, plumbing or other utilities. No foreign substances of any kind
are to be inserted therein.
8. Tenant shall not deface the walls, partitions or other surfaces of the
premises or Office Building Project.
9. Tenant shall not suffer or permit any thing in or around the Premises
or Building that causes excessive vibration or floor loading in any
part of the Office Building Project.
10. Furniture, significant freight and equipment shall be moved into or out
of the building only with the Landlord's knowledge and consent, and
subject to such reasonable limitations, techniques and timing, as may
be designated by Landlord. Tenant shall be responsible for any damage
to the Office Building Project arising from any such activity.
11. Tenant shall not employ any service or contractor for services or work
to be performed in the Building, except as approved by Landlord.
39
12. Tenant shall return all keys at the termination of its tenancy and
shall be responsible for the cost of replacing any keys that are lost.
13. No window coverings, shades or awnings shall be installed or used by
Tenant.
14. Neither Tenant or any employee or invitee of Tenant shall go upon the
roof of the Building.
15. Tenant shall not suffer or permit smoking or carrying of lighted cigar
or cigarettes in areas reasonably designated by Landlord or by
applicable governmental agencies as non-smoking areas.
16. Tenant shall not use any method of heating or air conditioning other
than as provided by Landlord.
17. Tenant shall not install, maintain or operate any vending machines upon
the Premises without Landlord's written consent.
18. The Premises shall not be used for lodging or manufacturing, cooking or
food preparation.
19. Tenant shall comply with all safety, fire protection and evacuation
regulations established by Landlord or any applicable governmental
agency.
20. Landlord reserves the right to waive any one of these rules or
regulations, and/or as to any particular lessee, and any such waiver
shall not constitute a waiver of any other rule or regulation or any
subsequent application thereof to such Tenant.
21. Tenant assumes all risks from theft or vandalism and agrees to keep its
Premises locked as may be required.
22. Landlord reserves the right to make such other reasonable rules and
regulations as it may from time to time deem necessary for the
appropriate operation and safety of the Office Building Project and its
occupants. Tenant agrees to abide by such rules and regulations as well
as these rules and regulations.
40
PARKING RULES
1. Parking areas shall be used only for parking vehicles no longer than
full size passenger automobiles herein called "Permitted Size
Vehicles." Vehicles other than Permitted Size Vehicles are herein
referred to as "Oversized Vehicles."
2. Tenant shall not permit or allow any vehicles that belong to or are
controlled by Tenant or Tenant's employees, suppliers, shippers,
customers, or invitees to be loaded, unloaded, or parked in areas other
than those designated by Landlord for such activities.
3. Parking stickers or identification devices shall be the property of
Landlord and be returned to Landlord by the holder thereof upon
termination of the holder's parking privileges. Tenant will pay such
replacement charge as is reasonably established by Landlord for the
loss of such devices.
4. Landlord reserves the right to refuse the sale of monthly
identification devices to any person or entity that willfully refuses
to comply with the applicable rules, regulations, laws and/or
agreements.
5. Landlord reserves the right to relocate all or a part of parking spaces
from floor to floor within one floor, and/or to reasonably adjacent
offsite location(s), and to reasonably allocate them between compact
and standard size spaces, as long as the same complies with applicable
laws, ordinances and regulations.
6. Users of the parking area will obey all posted signs and park only in
the areas designated for vehicle parking.
7. Unless otherwise instructed, every person using the parking area is
required to park and lock his own vehicle. Landlord will not be
responsible for any damage to vehicles, injury to persons or loss of
property, all of which risks are assumed by the party using the parking
area.
8. Validation, if established, will be permissible only by such method or
methods as Landlord and/or its licensee may establish at rates
generally applicable to visitor parking.
9. The maintenance, washing, waxing or cleaning of vehicles in the parking
structure or Common Areas is prohibited.
10. Tenant shall be responsible for seeing that all its employees, agents
and invitees comply with the applicable parking rules, regulations,
laws and agreements.
11. Landlord reserves the right to modify these rules and/or adopt such
other reasonable and non-discriminatory rules and regulations as it may
deem necessary for the proper operation of the parking area.
12. Such parking use as is herein provided is intended merely as a license
only and no bailment is intended or shall be created hereby.
41
EXHIBIT C
SCOPE OF WORK
EPL Technologies, Inc.
Plaza II - 2nd Floor
Job #A-1438-96
June 17, 1996
Revised August 22, 1996
The following information is based on Plan IP 96-00-25, dated 6/11/96, with
final revision on 8/20/96. The final and exact layout of the proposed space
shall be reviewed and verified by an architect of our choosing. Any changes or
alternatives required by code, or due to existing building conditions, shall be
incorporated into the plan.
1.00 Sprinkler
1.01 Supply and install ordinary hazard wet system. System to be compatible
with building "core" system that will be installed at a later date.
1.02 Supply and install two (2) portable fire extinguishers.
2.00 Plumbing
2.01 Supply and install one (1) 25" wide x 22" deep stainless steel sink in
Room 217.
2.02 Supply and install all associated supply and drain lines.
2.03 Supply and install one (1) 30" x 30" fiberglass stall shower.
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Scope Of Work - EPL Technologies, Inc.
Page 2
August 22, 1996
3.00 HVAC
3.01 Supply and install appropriately sized fire damper at demising wall for
return air plenum.
4.00 Carpentry
4.01 Build new one-hour rated tenant-to-tenant demising wall, as per plan.
4.02 Build new steel stud and 1/2" GWB partitions from slab to underside of
acoustical ceiling grid.
4.03 Supply and install "C" rated entrance doors, as per plan.
4.04 Replace damaged acoustical tile, as required.
4.05 Prepare all new and existing GWB to receive wall finish.
4.06 Supply and install blocking for cabinetry.
4.07 Supply and install labor to install millwork at kitchen and cubes.
4.08 Relocate building stock door jambs.
4.09 Remove and discard existing partitions, as per plan.
4.10 Supply and install low height partition, with wood cap, as per plan.
5.00 Millwork
5.01 Supply plastic laminate base and wall cabinet.
5.02 Supply plastic laminate counter at kitchen and cubes.
6.00 Wall Finish
6.01 Paint to cover all new and existing exposed GWB surfaces. (Paint to be
flat latex, one (1) color; choice by Tenant.)
6.02 Paint to cover kitchen utilizing latex semi-gloss, one (1) color;
choice by Tenant.
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Scope Of Work - EPL Technologies, Inc.
Page 3
August 22, 1996
6.00 Wall Finish (cont.)
6.03 Paint/finish doors and frames (frame color choice by Tenant). Apply
urethane at previously urethane door surface.
6.04 Supply and install vinyl wall covering, as per plan, at Rooms 205 and
212.
6.05 Supply and install stain and finish at wood cap.
6.06 "Spray" ceiling grid and tile.
7.00 Overhead Doors & Docks - N/A
8.00 Finish Floor
8.01 Remove and discard existing carpet, base and V.C.T.
8.02 Supply and install carpet, as per plan. Base carpet 26 oz. level loop,
as per plan (color choice by Tenant).
8.03 Supply and install upgrade carpet, as per plan, at Rooms 212 and 205.
8.04 Supply and install V.C.T., as per plan (color choice by Tenant).
8.05 Supply and install vinyl base at all G.W.B. partitions, one (1) color
choice by Tenant.
8.06 Prepare floor as necessary to receive carpet.
9.00 Electric
9.01 Supply and install up to forty (40) wall mounted outlets.
9.02 Supply and install up to twenty (20) wall mounted wall switches (to
control existing light fixtures.)
9.03 Re-tube and re-zone all existing florescent light fixtures. (Re-zone as
per new partition layout.)
9.04 Supply and install battery back-up exit and emergency light fixtures.
(Re-zone as per new partition layout.)
9.05 Perform miscellaneous demolition as required.
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Scope Of Work - EPL Technologies, Inc.
Page 4
August 22, 1996
9.06 Supply and install high hat fixtures, as per plan, at Rooms 212
and 205.
10.00 Exterior & Interior Glazing - N/A
11.00 Caulking & Seal Coating - N/A
12.00 Concrete & Masonry - N/A
13.00 Asphalt Paving - N/A
14.00 Insulation - N/A
15.00 Roofing - N/A
16.00 Site Work - N/A
17.00 Structural Steel - N/A
18.00 Architecturals & Permits
18.01 Provide architectural drawing suitable for submission to Pennsylvania L
& I for State permit.
18.02 Apply for State and local permit.
19.00 General Conditions
19.01 Provide ongoing general clean up and final clean up of work area.
19.02 Provide for trash removal as needed.
45
EXHIBIT D
DISCLOSURE AND WAIVER RELATING TO
CONFESSION OF JUDGMENT AND EXECUTION PROCEEDINGS
Tenant: EPL Technologies, Inc., a Colorado corporation
Landlord: K/B Fund II, a Delaware general partnership
Premises: 6,674 square feet known as Suite 000
Xxxxx Xxx, Xxxxxxx Xxxxxxxx
Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx
Lease: Lease dated 9-11-96 between Landlord and Tenant for the Premises
Tenant is executing the above referenced Lease on the date set forth below.
A. TENANT ACKNOWLEDGES AND UNDERSTANDS THAT THE LEASE CONTAINS PROVISIONS UNDER
WHICH LANDLORD MAY ENTER JUDGMENT BY CONFESSION IN EJECTMENT AGAINST THE TENANT.
BEING FULLY AWARE OF TENANT'S RIGHT TO PRIOR NOTICE AND A HEARING IN CONNECTION
WITH THE JUDGMENT OR OTHER CLAIMS THAT MY BE ASSERTED AGAINST THE TENANT BY
LANDLORD THEREUNDER BEFORE JUDGMENT IS ENTERED, THE TENANT HEREBY VOLUNTARILY,
KNOWINGLY AND INTELLIGENTLY WAIVES ALL SUCH RIGHTS AND EXPRESSLY AGREES AND
CONSENTS TO LANDLORD'S ENTERING JUDGMENT AGAINST IT BY CONFESSION PURSUANT TO
THE TERMS THEREOF.
B. THE TENANT HEREBY REPRESENTS, WARRANTS AND CERTIFIED TO LANDLORD THAT: (1)
TENANT IS REPRESENTED BY COUNSEL OR HAD THE ABILITY TO HAVE COUNSEL PRESENT AND
AGREES TO AND UNDERSTANDS THE ABOVE TERMS EXPLICITLY; (2) TENANT'S ANNUAL INCOME
EXCEEDS $10,000; AND (3) TENANT HAS RECEIVED A COPY OF THIS DISCLOSURE AND
WAIVER AT THE TIME OF EXECUTION.
TENANT: EPL Technologies, Inc., a
Colorado corporation
By: /s/ Xxxx X. Xxxxxx
------------------------------
Date of Execution:
9-3, 1996
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