DATE OF LEASE: MARCH 17 , 1999
LEASE TERM: approximately ten (10) years, subject to Article II
COMMENCEMENT DATE: The date hereof
EXPIRATION DATE: The last day of the Month in which the tenth (10th) anniversary
of the Rent Commencernent Date (hereinafter defined) Occurs
BASE RENT:
Lease Year Monthly Annually Rate/RSF
1 $44,892-75 $538,713.00 $17.00
2 $47,533.50 $570,402.00 $18.00
3 $50,174.25 $602,091.00 $19.00
4 $52,815.00 $633,780.00 $20.00
5 $55,455.75 $665,469.00 $21.00
6 $59,416.87 $713,002.00 $22.50
7 $60,737.25 $728,847.00 $23.00
8 $62,057.62 $744,691.00 $23.50
9 $63,378.00 $760,536.00 $24.00
10 $66,018.75 $792,225.00 $25.00
TAX ALLOWANCE: 1999 Base Year for Taxes
OPERATING EXPENSE ALLOWANCE: 1999 Base Year for Operating Expenses
RENTABLE AREA OF THE BUILDING: 1,856,784 rentable square feet
RENTABLE AREA OF THE PREMISES: 31,689 rentable square feet
SUITE NUMBER OF PREMISES: 3900
TENANT'S SHARE: Taxes: 1.707%; Operating Expenses: 1.91%
TENANT'S USE OF PREMISES: General office use
ENUMERATION OF EXHIBITS:
The exhibits set forth below and attached to (or expressly deemed attached
to) this Lease, and are incorporated in this Lease by this reference:
EXHIBIT A. Plan of Premises
EXHIBIT B. Landlord's Work
EXHIBIT C. Building Specifications
EXHIBIT D. Rules and Regulations
EXHIBIT NDA Non-Disturbance and Attornment Agreement
EXHIBIT E Plans and Specifications for Tenant's Work
EXHIBIT F Offer Space
EXHIBIT JS Janitorial Specifications
1.1. DEFINITIONS
For purposes hereof, the following terms shall have the following meanings:
AFFILIATE: Any corporation or other business entity which is
owned or controlled by, owns or controls, or is under common ownership or control
with Tenant. In addition, a successor to Tenant by way of merger or purchase
of all or substantially all of Tenant's assets, provided that such successor
has a net worth at least equal to the net worth of Tenant as of the Commencement
Date or immediately prior to such merger or purchase, whichever is greater (as
evidenced by financial information submitted and reasonably acceptable to Landlord).
BUILDING: The office building located at 1500 Market Street,
Philadelphia, Pennsylvania 19102.
COMMENCEMENT DATE: The date specified in Article I as the Commencement
Date, unless changed by operation of Article II.
COMMON AREAS: All areas of the Real Property made available
by Landlord from time to time for the general common use or benefit of the tenants
of the Building, and their employees and invitees, or the public, as such areas
currently exist and as they may be changed from time to time.
DECORATION: Any Tenant Alteration which (a) does not require
a building permit, (b) does not involve or affect any of the structural elements
of the Building, or any of the Building's systems, including, without limitation,
its electrical, mechanical, plumbing and security and life/safety systems, (c)
does not cost more than $10,000 individually, and (d) is not part of a larger
project, program, plan or group of Tenant Alterations which costs more than
$10,000 in the aggregate.
DEFAULT RATE: Two percent (2%) above the rate then most recently
announced by First Union National Bank, N.A. as its corporate base lending rate,
from time to time announced, but in no event higher than the maximum rate permitted
by law.
ENVIRONMENTAL LAWS: Any law governing the use, storage, disposal
or generation of any Hazardous Material, including without limitation,
the Comprehensive Environmental Response Compensation and Liability Act of 1980,
as amended and the Resource Conservation and Recovery Act of 1976, as amended.
FORCE MAJEURE: Any accident, casualty, act of God, war or civil
commotion, strike or labor troubles, or any cause whatsoever beyond the reasonable
control of Landlord, including, but not limited to, energy shortages or governmental
preemption in connection with a national emergency, or by reason of government
laws or any law, rule, order or regulation of any department or subdivision
thereof or any governmental agency, or conditions of supply and demand which
have been or are affected by war or other emergency.
HAZARDOUS MATERIAL: Such substances, material and wastes which
are or become regulated under any Environmental Law; or which are classified
as hazardous or toxic under any Environmental Law; and explosives, firearms,
radioactive material, asbestos, and polychlorinated biphenyls.
INDEMNITEES: Collectively, Landlord, any Mortgagee or ground
lessor of the Property, the property manager and the leasing manage for the
Property and their respective partners, directors, officers, agents and employees.
LAND: The parcels of real estate on which the Building is located.
LANDLORD WORK: The construction or installation of improvements
to the Premises, to be furnished by Landlord, if any, specifically described
in Exhibit B, attached hereto.
LAWS: All laws, ordinances, rules, regulations and other requirements
adopted by any governmental body, or agency or department having jurisdiction
over the Property, the Premises or Tenant's activities at the Premises and any
covenants, conditions or restrictions of record which affect the Property.
LEASE: This instrument and all exhibits and riders attached
hereto, as may be amended from time to time.
MONTHLY BASE RENT: The monthly rent specified in Article I.
MORTGAGEE: Any holder of a mortgage, deed of trust or other
security instrument encumbering the Property.
NATIONAL HOLIDAYS: New Year's Day, Memorial Day, Independence
Day, Labor Day, Thanksgiving Day and Christmas Day and other holidays recognized
by Landlord and the janitorial and other unions servicing the Building in accordance
with their contracts.
OPERATING EXPENSES: All costs, expenses and disbursements of
every kind and nature which Landlord shall pay or become obligated to pay in
connection with the ownership, management, operation, maintenance, replacement
and repair of the Property including the amortized portion (together with interest
thereon) of capital improvements installed for the purpose, in Landlord's reasonable
and good faith judgment, of reducing or controlling Operating Expenses, complying
with applicable Laws, or improving the safety of tenants in the Building generally,
whether or not voluntary or required by governmental mandate). Operating Expenses
shall not include, (a) costs of alterations of the premises of tenants of the
Building, (b) costs of capital improvements to the Building, except as set forth
above, (c) depreciation charges, (d) interest and principal payments on loans
(except for loans for capital improvements which Landlord is allowed to include
in Operating Expenses as provided above), (e) ground rental payments, (f) real
estate brokerage and leasing commissions, (g) advertising and marketing expenses,
(h) costs of Landlord reimbursed by insurance proceeds, (i) expenses incurred
in negotiating leases of' other tenants in the Building or enforcing lease obligations
of other tenants in the Building, (j) Landlord's or Landlord's property manager's
corporate general overhead or corporate general administrative expenses, (k)
costs of decorating, redecorating or special cleaning or other services provided
to a particular tenant (but not all tenants) of the Building, (1) any charge
for Landlord's income taxes, excess profit taxes, franchise taxes, or similar
taxes on Landlord's business, (m) all costs for which Tenant or any other tenant
in the Building is separately charged (other than through the Operating Cost
escalation provisions of the lease with such other tenant), (n) the cost of
any electric current furnished to office tenants for noncustomary office machinery
and equipment, (o) the cost of correcting defects in the original construction
of the Building equipment to the extent such cost is covered by warranty, except
that conditions resulting from ordinary wear and tear will not be deem defects
for the purpose of this clause (o), (p) the cost of any repair made by Landlord
because of the total or partial destruction of the Building by fire or other
casualty (except that reasonable deductible amounts may be included in Operating
Expenses) or the condemnation of a portion of the Building, (q) any increase
in Landlord's insurance premiums to the extent that such increase is caused
by or attributable to the particular use, occupancy or act of another tenant,
(r) the cost of removal, treatment or abatement of asbestos or any other
hazardous substance or gas in the Building or on the Premises (other than
those customarily handled or disposed of incident to the normal operation, maintenance
or repair of the Property, such as cleaning materials), (s) any amount paid
to an affiliate of Landlord to the extent of the excess of such amount which
would be paid in the absence of such relationship, (t) the cost of any work
or service performed for or facilities furnished to any tenant of the Building
to a greater extent or in a manner more favorable to such tenant than that performed
for or furnished to Tenant, and (u) the cost of overtime or other expense to
Landlord in curing defaults. If any Operating Expense, though paid in one year,
relates to more than one calendar year, at option of Landlord such expense may
be proportionately allocated among such related calendar years. Further, notwithstanding
anything to the contrary contained herein, in no event shall Tenant be required
to pay Operating Expenses for the calendar year commencing January 1, 1999.
OPERATING EXPENSE ALLOWANCE The amount set forth in Article
I.
OPERATING EXPENSE STATEMENT: A statement in writing
signed by Landlord, setting forth in reasonable detail (a) the Operating Expenses
for the preceding Operating Year, (b) the Operating Expense Allowance, (c) the
Operating Expense Adjustment for such Operating Year, or portion thereof, and
(d) the Operating Expense Estimate for the current Operating Year.
OPERATING YEAR: Each calendar year, or such other period of
twelve (12) months as hereafter may be adopted by Landlord as its fiscal year,
occurring during the Lease Term.
PREMISES: The space located in the Building described in Article
I and depicted on Exhibit A attached hereto.
PROPERTY: The Building, the Land, any other improvements located
on the Land, including, without limitation, any parking structures and the personal
property, fixtures, machinery, equipment, systems and apparatus located in or
used in conjunction with any of the foregoing.
REAL PROPERTY: The Property excluding any personal property.
RENT: Collectively, Monthly Base Rent, Rent Adjustments, and
all other charges, payments, late fees or other amounts required to be paid
by Tenant under this, Lease. Any Taxes as above defined, such substituted taxes or assessments
shall be included in the Taxes.
TENANT ADDITIONS: Collectively, Tenant's Work and Tenant Alterations.
TENANT ALTERATIONS: Any alterations, improvements, additions,
installations or construction in or to. the Premises, excluding Landlord's Work.
TENANT DELAY: Any event or occurrence, other than a Force Majeure
event or occurrence, which delays the completion of the Landlord Work which
is caused by or is described as follows:
-special work, changes, alterations or additions requested
or made by Tenant in the design or finish -in any part of the Premises after
approval of the plans and specifications (as described in Exhibit B);
-Tenant's delay in submitting plans, supplying information,
approving plans, specifications or estimates, giving authorizations or otherwise,
it being understood and agreed that such delay shall not be deemed to have occurred
until 5 days have elapsed since the request was made for such information, approval,
or otherwise;
-Tenant's failure to approve and pay for such Tenant's Work
as Landlord undertakes to complete at Tenant's expense within 30 days of Landlord's
written demand for such payment, accompanied by an invoice, in reasonable detail
describing the costs for such work; or
-the performance or completion by Tenant or any person engaged
by Tenant of any work in or about the Premises.
TENANT'S WORK: All work installed or furnished to the Premises
by Tenant.
TENANT'S SHARE: The percentage specified in Article I which
represents the ratio of the Rentable Area of the Premises to the Rentable Area
of the Building.
TERM: The term of this Lease, commencing on the Commencement
Date and expiring on the Expiration Date, unless sooner terminated as provided
in this Lease.
TERMINATION DATE: The Expiration Date or such earlier date
as this Lease terminates or Tenant's right to possession of the Premises terminates.
ARTICLE II.
PREMISES, TERM AND FAILURE TO GIVE POSSESSION
LEASE OF PREMISES
Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Premises for the Term and upon the conditions provided in this
Lease.
COMMENCEMENT DATE; TERM; LEASE YEARS
If the Rent Commencement Date occurs on other than the first
day of a calendar month, Monthly Base Rent for that month shall be prorated
on the basis of a 360 day calendar year with 12 months containing 30 days each.
The first lease year of the Term shall commence on the Rent
Commencement Date and shall end (a) on the day immediately preceding the first
anniversary of the Rent Commencement Date, if the Rent Commencement Date is
the first day of the month, or (b) the last day of the month in which the first
anniversary of the Rent Commencement Date occurs, if the Rent Commencement Date
is any day other than the first day of a calendar month. Each subsequent lease
year shall be a period of twelve months, commencing on the day immediately following
the expiration of the prior lease year and expiring on the day immediately preceding
the anniversary of the commencement of such lease year.
The amount of Monthly Base Rent set forth in the Article I
is an annualized amount. If the first lease year is more than 365 days, Tenant
shall pay a pro rated amount of the amount for the period which is in excess
of 365 days.
FAILURE TO GIVE POSSESSION
Landlord shall not be subject to any liability for failure
to give possession of the Premises to Tenant on the Commencement Date (a) by
reason of the holding over or retention of possession of any tenant, tenants
or occupants or (b) for any other Reason.
AREA OF PREMISES
Landlord and Tenant agree that for all purposes of this Lease
the Rentable Area of the Premises and the Rentable Area of the Building as set
forth in Article I are controlling, and are not subject to revision after the
date of this Lease.
CONDITION OF PREMISES
It is understood and agreed that Landlord shall have no obligation to do any work in order to ready the Premises for Tenant's use and that Tenant will be responsible for all construction, alterations or installations necessary to make the Premises
ready for its use. It being further understood and agreed that Tenant will accept delivery of the Premises in an "as is" condition or whatever condition the same may be in as of the Commencement Date, and subject to the terms of this Lease. Tenant
acknowledges that it has either undertaken an inspection of the Premises and been satisfied with the results thereof or waived the undertaking of such inspection and that no agreement of Landlord to alter, remodel, decorate, clean or improve the Premises
or the Building and that no representation regarding the condition of the Premises or the Building has been made by or on behalf of Landlord to Tenant. Notwithstanding the foregoing, however, on the Commencement Date the Building systems serving the
Premises and the structural portions thereof shall -be in good working and condition commensurate with first class office buildings in the vicinity of the Building and in the event of any defect or failure with respect to same, upon written notice thereof
from Tenant, Landlord shall promptly proceed to repair same at its sole cost and expense, except of such defect or failure was the result of Tenant's act, in which event Tenant shall bear the cost thereof.
Tenant shall (a) promptly after the Commencement Date, (i)
obtain all necessary municipal or governmental approvals and consents to construct
the Premises in accordance with the plans and specifications which shall be
submitted to Landlord for its prior written approval, and at such time as the
plans and specifications are approved and initialed by Landlord and Tenant for
identification and marked "Final Approved Plans and Specifications/Lincoln National
Management Corporation/Suite 3900 at Centre Square" with the date of such approval
indicated thereon, the same shall be.deemed incorporated herein by reference
whether or not the same are physically attached hereto and which approved plans
and specifications shall be hereinafter referred to as Exhibit E, which shall
be deemed attached hereto and made a part hereof, and which work is hereinafter
referred to as "Tenant's Work", and (ii) enter into a construction contract
for the performance of Tenant's Work with a contractor to be selected by Tenant
in accordance with Article VIII, which construction contract and contractor
are hereinafter respectively referred to as "Construction Contract" and "Contractor",
and (b) promptly after obtaining such approvals and consents and entering into
such contract, cause the Premises to be completed substantially in conformance
with the plans and specifications to be attached hereto as Exhibit E. All subcontractors
shall be similarly selected in accordance with Article VIII, it being further
understood and agreed that Tenant's architect and engineer shall be similarly
subject to Landlord's prior written approval, which approval shall not be unreasonably
withheld or delayed. Landlord agrees to furnish Tenant with a list of up to
six (6) interior finish contractors approved by Landlord.
Within thirty (30) days after Tenant completes all Tenant's
Work and furnishes Landlord with (i) satisfactory evidence of the approval of
the municipal or governmental bodies necessary in order to permit the use and
occupancy of the Premises for the use set forth in Article I, (ii) copies of
all required approvals, permits, inspections and sign-offs required by state,
federal and municipal authorities along with copies of stamped (by Tenant's
architect) drawings approved by Landlord and the municipal body having jurisdiction,
(iii) copies of all bill incurred by Tenant in completing Tenant's Work together
with evidence satisfactory to Landlord (by lien waivers and "paid" receipts)
that said bills have been paid in full, Landlord shall pay to Tenant for Tenant's
Work the lesser of the (a) the cost of Tenant's Work as evidenced by receipted
bills therefor and (b) the sum of $1,204,182.00, (said amount hereinafter referred
to as the "Construction Allowance. The Construction Allowance shall represent
Landlord's sole and total contribution to Tenant's Work. Notwithstanding, expressly
provided Tenant is not in default beyond any applicable grace period under the
terms of this Lease and submits to Landlord copies of bills incurred by Tenant
in completing various portions of Tenant's Work along with evidence satisfactory
to Landlord that said bills have been paid in full by lien waivers and "paid"
receipts and a statement of Tenant's architect (in form and content satisfactory
to Landlord) that the work for which said bills have been paid has been satisfactorily
completed pursuant to the terms of this Lease, Landlord shall, not more than
once every thirty (30) days, within thirty (30) days after the submissions hereabove
required, pay Tenant, in increments of not less than $100,000.00 each that portion
of the Construction Allowance for which said bills have been submitted except
that Landlord shall retain and hold back (the "Retainage") the sum of $120,418.00
until all conditions of this Article II have been satisfied further provided
that in the event Tenant has not delivered to Landlord the required submissions
to draw the Retainage on or before the Rent Commencement Date, such failure
shall be deemed a default hereunder and Landlord, at its sole option, subject
to ten (10) days prior written notice to Tenant, shall have the right to take
such steps as are necessary to permit the use and occupancy of the Premises
for the use set forth in Article I Tenant acknowledges Landlord's right to apply
the Retainage towards the reimbursement of Landlord's reasonable costs in connection
with the foregoing further provided Tenant also agrees to remit to Landlord,
within fifteen (15) days of Landlord's written demand, a reimbursement of Landlord's
reasonable costs incurred above and beyond the Retainage. In connection with
Tenant's Work, Tenant shall pay Landlord, within fifteen (15) business days
of demand, a construction fee equal to 3% of the Construction Allowance, as
well as all elevator, rubbish removal and hoisting charges at the rates determined
by Landlord and in effect at the time. Further in connection with Tenant's Work
(pursuant to plans and specifications approved in writing by Landlord), if Tenant
encounters any asbestos or Hazardous Materials within the Premises in the course
thereof not placed there as a result of Tenant's act (or one acting for Tenant),
Landlord will cause same to be removed at its sole cost and expense.
ARTICLE III.
RENT
Tenant agrees to pay to Landlord at the office specified in
Article I, or to such other persons, or at such other places designated by Landlord,
without any prior demand therefor in immediately available funds and without
any deduction or setoff whatsoever, Rent, including, without limitation, Monthly
Base Rent and Rent Adjustments in accordance with Article IV, during the Term.
Monthly Base Rent shall be paid monthly in advance on the first day of each
month of the Term, except that the first installment of Monthly Base Rent shall
be paid by Tenant to Landlord on the Rent Commencement Date. Unpaid Rent shall
bear interest at the Default Rate from the date due until paid. Tenant's covenant
to pay Rent shall be independent of every other covenant in this Lease.
ARTICLE IV.
RENT ADJUSTMENTS AND PAYMENTS
TAX ADJUSTMENT
If Taxes for any Tax Year shall be greater than the Tax Allowance,
Tenant shall pay to Landlord an amount equal to Tenant's Share of such difference.
(The amount of Tenant's Share of such difference is hereinafter referred to
as the "Tax Adjustment.") If the Rent Commencement Date is any date other than
the first day of a Tax Year or if the Expiration Date is any date other than
the last day of a Tax Year, the Tax Adjustment shall be allocated proportionately
to the amount of time in such Tax Year that the Term is in effect. Within 120
days after Landlord's determination of Taxes for the applicable period during
the Term, Landlord shall furnish Tenant with a Tax Statement and Tenant shall
pay the Tax Adjustment within ten (10) business days following delivery of the
Tax Statement to Tenant. Further, upon Landlord's receipt of the actual annual
bills for Taxes for each Tax Year, which Tenant acknowledges may be subsequent
to the delivery of the Tax Statement and Tenant's obligation to make the Tax
Adjustment, Landlord will provide Tenant with copies of such annual bills.
OPERATING EXPENSE ADJUSTMENT
If the Operating Expenses for any Operating Year shall be greater
than the Operating Expense Allowance, Tenant shall pay to Landlord an amount
equal to Tenant's Share of the difference. (The amount of Tenant's Share of
such difference is hereinafter referred to as the "Operating Expense Adjustment".)
If the Rent Commencement Date is any date other than the first day of an Operating
Year or if the Expiration Date is any date other than the last day of an Operating
Year, the Operating Expense Adjustment will be allocated proportionately to
the amount of time in such Operating Year that the Term is in effect.
From and after the Rent Commencement Date, Tenant shall pay
to Landlord, on account of the Operating Expense Adjustment for the current
Operating Year, monthly installments in advance equal to one-twelfth (1/12th)
of the estimated Operating Expense Adjustment for such Operating Year (the "Operating
Expense Estimate"). Such installments shall be payable on or prior to the 10th
business day of each month throughout the Lease Term, except that, if the Commencement
Date occurs on a day other than the first day of a month, the first Operating
Expense Adjustment Deposit shall be paid on the Commencement Date and apportioned
based on the number of days in such month occurring from and after the Commencement
Date. Within 120 days following the end of each Operating Year, Landlord shall
furnish to Tenant an Operating Expense Statement. Within ten (10) days following
the receipt of the Operating Expense Statement, Tenant shall pay to Landlord
(or Landlord shall credit to Tenant) the sum of (a) any deficiency (or excess)
between the installments paid on account of the preceding Operating Year's Operating
Expense Adjustment and the actual Operating Expense Adjustment for such Operating
Year, and (b) any deficiency (or excess) between (i) the total of the installments
paid on account of the Operating Expense Adjustment for the current Operating
Year in which the Operating Expense Statement is issued, and (ii) the product
of one-twelfth (1/12) of the Operating Expense Estimate as shown on the Operating
Expense Statement for the current Operating Year and the number of months which
have elapsed during such Operating Year. Until the Operating Expense Estimate
for the current Operating Year is furnished by Landlord, Tenant shall continue
to pay monthly installments on account of the current Operating Year's Operating
Expense Adjustment based upon the preceding Operating Year's Operating Expense
Estimate. No interest or penalties shall accrue on any amounts which Landlord
is obligated to credit to Tenant by reason of this Article.
GENERAL
Notwithstanding anything to the contrary contained herein,
it is understood and agreed that Landlord's failure to deliver the Operating
Expense Statement or Tax Statement or in computing the amount of the Rent Adjustments
shall not constitute a waiver by Landlord of its right to deliver such items
or constitute a release of Tenant's obligations to pay such amounts. Tenant's
obligation to pay Rent Adjustments survives the expiration or termination of
the Lease.
Each such Operating Expense Statement given by Landlord pursuant
to this Article 4 shall be conclusive and binding upon Tenant unless within
ninety (90) days after the receipt of such Operating Expense Statement, time
being of the essence, Tenant shall notify Landlord in writing that it disputes
the correctness of the Operating Expense Statement, specifying the particular
respects in which the Operating Expense Statement is claimed to be incorrect,
and if such dispute shall not have been settled by agreement between Landlord
and Tenant (who shall promptly proceed, in good faith, to attempt reach such
settlement, expeditiously) within sixty (60) days thereafter, either party may
submit the dispute for third party resolution (the "Dispute Mechanism") as follows:
Landlord and Tenant shall each, at their respective sole cost and expense, promptly
retain a "qualified" (to wit: one who is familiar and experienced with operating
expense escalation clauses in leases for office space in first class office
buildings in downtown Philadelphia) certified public accountant, licensed to
practice in the Commonwealth of Pennsylvania and the two public accountants
will promptly select a third similarly qualified public accountant (with the
costs of the third public accountant to be shared equally by Landlord and Tenant)
and the three (3) public accountants will then promptly and expeditiously review
the Operating Expense Statement (and permitted backup) timely disputed and make
a determination accordingly which will become effective and binding on Landlord
and Tenant as of the date of their determination. Notwithstanding the foregoing,
pending the determination of such dispute, by agreement between Landlord and
Tenant or the Dispute Mechanism, Tenant shall within ten (10) business days
after the receipt of such Operating Expense Statement pay additional rent in
accordance with such Operating Expense Statement, without prejudice to Tenant's
position. If the dispute shall be determined in Tenant's favor, Landlord
shall forthwith pay to Tenant the amount of Tenant's overpayment of rents resulting
from compliance with the Landlord's Operating Expense Statement.
Anything contained herein to the contrary notwithstanding,
Tenant, only by its internal auditors or an independent certified public accountant
licensed to practice in the Commonwealth of Pennsylvania, shall have the right,
upon written notice to Landlord, within sixty (60) days after the receipt of
such Operating Expense Statement, time being of the essence, to, in confidence
(and, at Landlord's option, subject to a written confidentiality agreement as
Landlord may reasonably require), during regular business hours, at Landlord's
office where such records are maintained, examine Landlord's books and records
solely with respect to such Operating Expense Statement. Tenant shall additionally
have the right, at its cost and expense, to make copies at Landlord's office
of the pertinent portions thereof only.
PARTIAL OCCUPANCY; OTHER ADJUSTMENTS
For purposes of determining the Operating Expense Adjustment,
if the Building is not fully rented during all or a portion of an Operating
Year, Landlord may make appropriate adjustments to the Operating Expenses for
such Operating Year employing sound accounting and management principles consistently
applied, to determine the amount of Operating Expenses that would have been
paid or incurred by Landlord had the Building been one hundred percent (100%)
occupied, and the amount so determined shall be deemed to have been the amount
of Operating Expenses for such Operating Year. In the event any other tenant
in the Building provides itself with a service which Landlord would supply under
the Lease without an additional or separate , charge to Tenant, then Operating
Expenses shall be deemed to include the cost Landlord would have incurred had
Landlord provided such service to such other tenant.
ARTICLE V.
SERVICES
LANDLORDS GENERAL SERVICES
So long as the Lease is in full force and effect and Tenant
has paid all Rent then due, Landlord shall furnish the following services:
.1 heat and air-conditioning in the Premises, Monday through
Friday from 8:00 A.M. to 6:00 P.M., Saturday, from 8:00 A.M. to 1:00 P.M., excluding
National Holidays, as necessary in Landlord's reasonable judgment for the comfortable
occupancy of the Premises under normal business operations, subject to compliance
with all applicable voluntary and mandatory regulations and laws;
.2 tempered and cold water for use in lavatories in common
with other tenants from the regular supply of the Building;
.3 pursuant to Exhibit JS, attached hereto and made a part
hereof, customary cleaning and janitorial services in the Premises Monday through
Friday, excluding National Holidays;
.4 automatic passenger elevator service in common with other
tenants of the Building and freight elevator service subject to reasonable scheduling
by Landlord and payment of Landlord's standard charges;
Whenever Tenant's use or occupancy of the Premises, including
lighting, personnel, heat generating machines or equipment, individually or
collectively, causes the design loads for the Building's HVAC system to be exceeded
or to affect the temperature otherwise maintained by the HVAC system in the
Premises or the Building, Landlord reserves the right to install or to require
Tenant to install supplementary air-conditioning units in the Premises. Tenant
shall bear all costs and expenses related to the installation, maintenance and
operation of such units.
Without limiting the generality of this Article V, Tenant shall
pay Landlord at rates fixed by Landlord charges for all water furnished to the
Premises for purposes other than set forth in Section .2, including the expenses
of installation of a water line, meter and fixtures.
ELECTRICAL SERVICES
Landlord shall provide five (5) watts of electrical energy
per square foot of rentable area, connected load, at 85% demand for 236 hours
per month. If, in Landlord's reasonable judgment, Tenant's use of electricity
exceeds the foregoing amount, Landlord may install meters (including, at Landlord's
election, both usage and demand meters) measuring the cost of such electricity
used in the Premises. Tenant shall pay to Landlord the cost of the meters and
installation and necessary appurtenances thereto, and Tenant shall also pay
to Landlord the cost of such excess electricity at rates equal to 125% of the
applicable high tension rates (plus all applicable demand costs, surcharges,
taxes and other amounts). All charges for excess electricity shall be due and
payable within ten (10) days after Tenant is billed therefor.
Tenant's use of electric energy in the Premises shall not at
any time exceed the capacity of any of the electric conductors and equipment
in or otherwise serving the Premises. In order to insure that such capacity
is not exceeded and to avert possible adverse effect upon the Building electric
service, Tenant shall not, without Landlord's prior written consent in each
instance, connect to the Building electric distribution system any fixtures,
appliances or equipment other than lamps, personal computers and similar small
office machines or make any alterations or additions to the electric system
of the Premises. Should Landlord grant such consent, all additional risers or
other equipment required therefor shall be provided by Landlord and the cost
thereof shall be paid by Tenant upon Landlord's demand.
Landlord shall furnish and install at Tenant's expense all
replacement lighting tubes, lamps, bulbs and ballasts required in the Premises.
ADDITIONAL AND AFTER-HOUR SERVICES
If Tenant shall require heating, ventilating, or air-conditioning
(collectively, sometimes herein, "HVAC") outside the hours and days specified
in Section .1 above, Landlord shall furnish such HVAC for the area or areas
specified on written request of Tenant delivered to Landlord before 2:00 P.M.
of the business day preceding the extra usage period, further provided that
Landlord shall use commercially reasonable efforts to provide such after hours
service on a shorter period of written notice from Tenant for same.
If Tenant requires any services in addition to those set forth
in hereabove in this Article, Landlord shall furnish such additional services
if Landlord can reasonably do so, upon reasonable prior notice from Tenant.
Further, for such services requested by Tenant and furnished by Landlord, Tenant
shall pay Landlord at the rates established by Landlord from time to time for
such services, which, with respect to after hours HVAC is, as of the date hereof,
$405.00 per hour. If Tenant shall fail to make any such payment, Landlord may,
upon notice to Tenant and in addition to Landlord's other remedies under this
Lease, discontinue any or all of the additional services.
SUPPLEMENTAL HVAC
Anything in this Lease to -the contrary notwithstanding, and
without limiting Landlord's obligation to provide HVAC, Tenant shall have the
right, subject to Landlord's right to approve plans, specifications and location
of same, to install, maintain and operate, at Tenant's sole cost and expense,
to serve the Premises, a supplementary HVAC system for after hours or additional
cooling. The supplemental system for the 39" floor will consist of one 50 ton
air cooled water chiller with two water recirculation pumps located on the roof
of the Building, which pumps will supply a chilled water loop to the 39th floor
of the Building serving two air handlers at 10,000 cfms and one air handler
of 1,500 cfms. The two 10,000 cfm units will provide supplementary cooling to
the perimeter office spaces within the Premises and the existing Building system,
converted to VAV, will serve the interior spaces. No heat pumps will be used
and, accordingly, the Building condenser water system will not be tapped.
PHONE SERVICES
All telegraph, telephone, and electric connections which Tenant
may desire shall be first approved by Landlord in writing, before the same are
installed, and the location of all wires and the work in connection therewith
shall be performed by contractors approved by Landlord and shall be subject
to the direction of Landlord. Landlord reserves the right to designate and control
the entity or entities providing telephone or other communication cable installation,
repair and maintenance in the Building and to restrict and control access to
telephone cabinets, provided, however, Landlord's consent to any nationally
recognized provider shall not be unreasonably withheld or delayed.. In the event
Landlord designates a particular vendor or vendors to provide such cable installation,
repair and maintenance for the Building, Tenant agrees to abide by and participate
in such program.
Tenant shall be responsible for and shall pay all costs incurred
in connection with the installation of telephone cables and related wiring in
the Premises, including, without limitation, any hook-up, access and maintenance
fees related to the installation of such wires and cables in the Premises and
the commencement of service therein, and the maintenance thereafter of such
wire and cables; and there shall be included in Operating Expenses for the Building
all installation, hook-up or maintenance costs incurred by Landlord in connection
with telephone cables and related wiring in the Building which are not allocable
to any individual users of such service but are allocable to the Building generally.
If Tenant fails to maintain all telephone cables and related wiring in the Premises
and such failure affects or interferes with the operation or maintenance of
any other telephone cables or related wiring in the Building, Landlord or any
vendor hired by Landlord may enter into and upon the Premises forthwith and
perform such repairs, restorations or alterations as Landlord deems necessary
in order to eliminate any such interference (and Landlord may recover from Tenant
all of Landlord's costs in connection therewith).
Tenant agrees that neither Landlord nor any of its agents or
employees shall be liable to Tenant, or any of Tenant's employees, agents, customers
or invitees or anyone claiming through, by or under Tenant, for any damages,
injuries, losses, expenses, claims or causes of action because of any interruption,
diminution, delay or discontinuance at any time for any reason in the furnishing
of any telephone service to the Premises or the Building.
DELAYS IN FURNISHING SERVICES
Tenant agrees that Landlord shall not be liable to Tenant for
damages or otherwise, for any failure to furnish, or a delay in furnishing,
any service when such failure or delay is occasioned, in whole or in part, by
repairs, improvements or mechanical breakdowns by the act or default of Tenant
or other parties or by an event of Force Majeure. No such failure or delay shall
be deemed to be an eviction or disturbance of Tenant's use and possession of
the Premises, or relieve Tenant from paying Rent or from performing any other
obligations of Tenant under this Lease. Notwithstanding the foregoing, and except
in the instance of an untenantability resulting from fire or other casualty,
if as a result of Landlord's act, a failure results in Landlord's ability to
deliver any service or utility (including electricity) as expressly required
by the terms of this Lease, the Premises or a material portion thereof become
untenantable so that Tenant's ability to conduct business from the Premises
is materially adversely affected and provided Tenant ceases to use the affected
area to conduct its business (as contemplated by this Lease), commencing the
5" business day following written notice of such condition to Landlord, until
such condition is corrected and the service restored, Tenant's Base Rent and
additional rent for Operating Expenses and Taxes shall abate in proportion to
such untenantable portion of the Premises.
ARTICLE VI.
POSSESSION, USE AND CONDITION OF PREMISES
POSSESSION AND USE OF PREMISES
Tenant shall be entitled to possession of the Premises on the
Commencement Date. Tenant shall occupy and use the Premises only for the uses
specified in Article I to conduct Tenant's business. Tenant shall not occupy
or use the Premises (or permit the use or occupancy of the Premises) for any
purpose or in any manner which: (a) is unlawful or in violation of any Law or
Environmental Law; (b) may be dangerous to persons or property or which may
increase the cost of, or invalidate, any policy of insurance carried on the
Building or covering its operations; (c) is contrary to or prohibited by the
terms and conditions of this Lease or the rules of the Building set forth in
Article XVIII; or (d) would tend to create or continue a nuisance. Further,
subject to the express limitations of this Article VI, Landlord agrees that
it shall comply with all applicable federal, state and local laws relating to
the operation of the Building as an office building of which the failure to
comply would materially adversely affect Tenant's use and enjoyment of the Premises
Tenant and Landlord shall each comply with all Environmental
Laws concerning the proper storage, handling and disposal of any Hazardous Material
with respect to the Property. Tenant shall not generate, store, handle or dispose
of any Hazardous Material in, on, or about the Property without the prior written
consent of Landlord. In the event that Tenant is notified of any investigation
or violation of any Environmental Law arising from Tenant's activities at the
Premises, Tenant shall immediately deliver to Landlord a copy of such notice.
In such event or in the event Landlord reasonably believes that a violation
of Environmental Law exists, Landlord may conduct such tests and studies relating
to compliance by Tenant with Environmental Laws or the alleged presence of Hazardous
Materials upon the Premises as Landlord deems desirable, all of which shall
be completed at Tenant's expense. Landlord's inspection and testing rights are
for Landlord's own protection only, and Landlord has not, and shall not be deemed
to have assumed any responsibility to Tenant or any other party for compliance
with Environmental Laws, as a result of the exercise, or non-exercise of such
rights. Tenant shall indemnify, defend, protect and hold harmless the Indemnitees
from any and all loss, claim, expense, liability and cost (including attorneys'
fees) arising out of or in any way related to the presence of any Hazardous
Material introduced to the Premises during the Lease Term by any party other
than Landlord and its agents or representatives. If any Hazardous Material is
released, discharged or disposed of on or about the Property and such release,
discharge or disposal is not caused by Tenant or other occupants of the Premises,
or their employees, agents or contractors, such release, discharge or disposal
shall be deemed casualty damage under Article XIV to the extent that the Premises
are affected thereby; in such case, Landlord and Tenant shall have the obligations
and rights respecting such casualty damage provided under such Article.
Landlord and Tenant acknowledge that the Americans With Disabilities
Act of 1990 (42 U.S.C §12101 et seq.) and regulations and guidelines
promulgated thereunder, as all of the same may be amended and supplemented from
time to time (collectively referred to herein as the "ADA") establish requirements
for business operations, accessibility and barrier removal, and that such requirements
may or may not apply to the Premises and the Building depending on, among other
things: (a) whether Tenant's business is deemed a "public accommodation" or
"commercial facility"; (b) whether such requirements are "readily achievable";
and (c) whether a given alteration affects a "primary function area" or triggers
"path of travel" requirements. The parties hereby agree that:
.1 Landlord shall be responsible for ADA Title III compliance
in the Common Areas, except as provided below;
.2 Tenant shall be responsible for ADA Title III compliance
in the Premises, including any leasehold improvements or other work to be performed
in the Premises under or in connection with this Lease;
.3 Landlord may perform, or require that Tenant perform, and
Tenant shall be responsible for the cost of, ADA Title III "path of travel"
requirements triggered by alterations in the Premises;
Landlord may do any of the foregoing, or undertake any of the
inspection or work described in the preceding paragraphs without such action
constituting an actual or constructive eviction of Tenant, in whole or in part,
or giving rise to an abatement of Rent by reason of loss or interruption of
business of Tenant, or otherwise.
QUIET ENJOYMENT
Landlord covenants that so long as Tenant is in compliance
with the covenants and conditions set forth in this Lease, Tenant shall have
the right to quiet enjoyment of the Premises without hindrance or interference
from Landlord or those claiming through Landlord, and subject to the rights
of any Mortgagee or ground lessor.
ARTICLE VII.
MAINTENANCE
LANDLORD'S MAINTENANCE
Subject to the provisions of Article XIV, Landlord, in a Building
standard first class manner, shall maintain and make necessary repairs to the
foundations, roofs, exterior walls, elevators, common area floor and wall coverings,
common area broken glass, and the structural elements of the Building, the base
building electrical, plumbing, heating, ventilation, sprinkler and air-conditioning
systems of the Building and the public corridors, washrooms and lobby of the
Building, except that: (a) Landlord shall not be responsible for the maintenance
or repair of any floor or wall coverings in the Premises; and (b) the cost of
performing any of said maintenance or repairs whether to the Premises or to
the Building caused by the negligence of Tenant, its employees, agents, servants,
licensees, subtenants, contractors or invitees, shall be paid by Tenant. Landlord
shall not be liable to Tenant for any expense, injury, loss or damage resulting
from work done in or upon, or the use of, any adjacent or nearby building, land,
street, or alley.
TENANT'S MAINTENANCE
Subject to the provisions of Article XIV, Tenant, at its expense,
shall keep and maintain the Premises and all Tenant Additions in good order,
condition and repair and in accordance with all Laws and Environmental Laws.
Such obligation shall include, without limitation, all electrical, plumbing
and mechanical systems serving the Premises from the point such systems connect
to the base building systems on each floor. Tenant shall not permit waste and
shall promptly and adequately repair all damages to the Premises and replace
or repair all damaged or broken glass in the interior of the Premises, fixtures
or appurtenances. Any repairs or maintenance shall be made (a) with materials
of similar quality to the original materials, (b) under the supervision of Landlord,
(c) only by contractors or mechanics approved by Landlord, which approval shall
not be unreasonably withheld, and whose work will not cause or threaten to cause
disharmony or interference with Landlord or other tenants in the Building and
their respective agents and contractors performing work in or about the Building.
If Tenant fails to perform any of its obligations set forth in this Article,
Landlord may, in its sole discretion and upon 24 hours prior written notice
to Tenant (except in the case when Landlord determines, in good faith, that
an emergency exists, in which case no notice shall be required), perform the
same, and Tenant shall pay to Landlord any costs or expenses incurred by Landlord
upon demand.
ARTICLE VIII.
ALTERATIONS AND IMPROVEMENTS
TENANT'S ADDITIONS
The following provisions shall apply to the completion of any
Tenant Additions, including, without limitation, Tenant's Work.
Tenant shall not, except as provided herein, without the prior
written consent of Landlord, which consent shall not be unreasonably withheld,
make or cause to be made any Tenant Additions. Tenant may undertake Decoration
work without Landlord's prior written consent, provided, however, (a) Tenant
shall advise Landlord of its intention to undertake Decoration work prior to
commencing the same, and (b) Tenant shall comply with all of the other provisions
of this Article VIll in connection with any Decoration work.
Tenant shall furnish Landlord with the names and addresses
of all contractors and subcontractors and copies of all contracts. All Tenant
Additions shall be completed at such time and in such manner as Landlord may
from time to time designate, and only by contractors, subcontractors or mechanics
approved by Landlord, which approval shall not be unreasonably withheld, and
whose work will not cause or threaten to cause disharmony or interference with Landlord or other tenants in
the Building and their respective agents and contractors performing work in
or about the Building. Prior to the commencement of any work or delivery of
materials to the Premises related to the Tenant Additions, Tenant shall furnish
to Landlord for its approval such of the following as specified by Landlord:
architectural plans and specifications; opinions from engineers reasonably acceptable
to Landlord stating that the Tenant Additions will not in any way adversely
affect the Building's systems, including, without limitation, the mechanical,
heating, plumbing, security, ventilating, air-conditioning, electrical, and
the fire and life safety systems in the Building; necessary permits and licenses;
waivers of mechanics liens; contractor payment and performance bonds; certificates
of insurance; and such other documents in such form reasonably requested by
Landlord. Landlord may, in the exercise of reasonable judgment, request that Tenant provide
Landlord with appropriate evidence of Tenant's ability to complete and pay for
the completion of the Tenant Additions such as a performance bond or letter
of credit. Upon completion of the Tenant Additions, Tenant shall deliver to
Landlord an as-built mylar and digitized (if available) set of plans and specifications
for the Tenant Additions.
Tenant shall pay the cost of all Tenant Additions and any work
to the Building occasioned thereby. In connection with completion of any Tenant
Additions, Tenant shall pay Landlord all elevator, rubbish removal and hoisting
charges at the rates determined by Landlord from time to time. Upon completion
of the Tenant Additions, Tenant shall furnish Landlord with contractors' affidavits
and full and final releases of lien and receipted bills covering all
labor and materials expended and used in connection therewith and such other
documentation reasonably requested by Landlord or Mortgagee. Further, notwithstanding
anything to the contrary contained herein, in the event Landlord retains a third
party consultant to review Tenant's plans for a proposed Tenant Addition that
is unique or nonstandard in nature for an office installation, Tenant shall,
on demand, reimburse Landlord for the reasonable charges of such consultant.
Tenant agrees to complete all Tenant Additions (a) in a good
and workmanlike manner, (b) with only good grades of materials, and (c), in
accordance with W all Laws, including all Environmental Laws, (ii) all requirements
of applicable insurance companies, (iii) any architectural plans submitted to
and approved by Landlord, and (iv) the policies and procedures established by
Landlord from time to time for construction of alterations, additions and improvements
by tenants in the Building. Tenant shall notify Landlord immediately if Tenant
receives any notice of violation of any Law in connection with completion of
any Tenant Additions and shall immediately take such steps as are necessary
to remedy such violation. In no event shall any supervision of construction
by Landlord or right of supervision by Landlord or any approvals given by Landlord
under this Lease constitute any warranty by Landlord to Tenant of the adequacy
of the design, workmanship or quality of such work or materials for Tenant's
intended use or of compliance with the requirements of the first sentence of
this Paragraph or impose any liability upon Landlord in connection with the
performance of such work.
All Tenant Additions whether installed by Landlord or Tenant,
shall without compensation or credit to Tenant, become part of the Premises
and the property of Landlord at the time of their installation and shall remain
in the Premises, unless pursuant to the express provisions of this Lease, Tenant
may remove them or is required to remove them at Landlord's request, provided,
however, Tenant shall have the right to remove any millwork it attaches to the
Premises (in accordance with the terms of this Lease) provided not less than
(010 business days prior written notice is given to Landlord, (ii) the contractor
and manner of removal is reasonably satisfactory to Landlord, and (iii) such
removal shall not, in Landlord's sole but reasonable judgment, cause damage
to the Building.
LIENS
Tenant shall not permit any lien or claim for lien of any mechanic,
laborer or supplier or any other lien to be filed against the Building, the
Land, the Premises, or any part thereof arising out of work performed, or alleged
to have been performed by, or at the direction of, or on behalf of Tenant. If
any such lien or claim for lien is filed, Tenant shall within ten (10) days
of receiving notice of such lien or claim (a) have such lien or claim for lien
discharged of record or (b) deliver to Landlord a bond in form, content, amount,
and issued by surety, satisfactory to Landlord, indemnifying, protecting, defending
and holding harmless the Indemnitees against all costs and liabilities resulting
from such lien or claim for lien and the foreclosure or attempted foreclosure
thereof. If Tenant fails to take any of the above actions, Landlord, without
investigating the validity of such lien or claim for lien, may pay or discharge
the same and Tenant shall, as payment of additional Rent hereunder, reimburse
Landlord upon demand for the amount so paid by Landlord, including Landlord's
expenses and reasonable attorneys' fees.
ARTICLE IX.
ASSIGNMENT AND SUBLETTING
ASSIGNMENT AND SUBLETTING
Without the prior written consent of Landlord, Tenant may not
(a) sublease all or any part of the Premises; (b) assign, mortgage, pledge,
hypothecate or otherwise transfer or permit the transfer of this Lease or the
encumbering of Tenant's interest therein in whole or in part, by operation of
law or otherwise; or (c) permit the use or occupancy of the Premises, or any
part thereof, by anyone other than Tenant.
If Tenant desires to enter into any sublease of the Premises
or assignment of this Lease, Tenant shall deliver written notice thereof to
Landlord ("Tenant's Notice") at least sixty (60) days prior to the commencement
date of the term of the proposed sublease or assignment. The Tenant's Notice
shall contain the following information: (a) in the case of a sublease, the
space which Tenant proposes to sublease; (b) the name and address of the proposed
subtenant or assignee; (c) a description of the business of the proposed subtenant
or assignee; and (d) a description of all material terms of the proposed assignment
or sublease. The Tenant's Notice shall be accompanied by the most recent financial
statement of the proposed subtenant or assignee and other evidence of financial
responsibility. Landlord shall notify Tenant in writing of its approval or disapproval
of the proposed sublease or assignment or its decision to exercise its rights
hereunder within thirty (30) days after receipt of Tenant's Notice (and all
required information). Tenant shall submit for Landlord's approval (which approval
shall not be unreasonably withheld) any advertising which Tenant or its agents
intend to use with respect to the space proposed to be sublet.
If Landlord chooses not to recapture the space proposed to
be subleased or assigned as provided herein, Landlord shall not unreasonably
withhold its consent to a subletting or assignment under this Paragraph.
In making its determination of whether to consent to any proposed sublease or
assignment, Landlord may take into consideration the business reputation and
creditworthiness of the proposed subtenant or assignee; the intended use of
the Premises by the proposed subtenant or assignee; the nature of the business
conducted by such subtenant or assignee and whether such business would be deleterious
to the reputation of the Building or Landlord or would violate the provisions
of any other leases of tenants of the Building; the estimated pedestrian and
vehicular traffic in the Premises and to the Building which would be generated
by the proposed subtenant or assignee; whether the proposed assignee or subtenant
is a department, representative or agency of any governmental body, foreign
or domestic; and any other factors which Landlord shall deem relevant. In no
event shall Landlord be obligated to consider any request for approval of a
proposed sublease or assignment, nor shall Tenant have the right to enter into
any sublease or assignment: (a) if a Default then exists under this Lease, or
a fact or condition exists, which but for the giving of notice or the passage
of time would constitute a Default; (b) if the proposed subtenant or assignee
is another tenant of the Building or an Affiliate of another tenant of the Building;
or (c) if either the space which Tenant proposes to sublease or the space retained
by Tenant is not a marketable unit as reasonably determined by Landlord or is
not in compliance with all Laws. If Landlord grants consent to such sublease
or assignment, Tenant shall pay all reasonable attorneys' fees and expenses
incurred by Landlord with respect to such assignment or sublease. In the event
Landlord wrongfully withholds its consent to any proposed sublease of the Premises
or assignment of the Lease, Tenant's sole and exclusive remedy therefor shall
be to seek specific performance of Landlord's obligations to consent to such
sublease or assignment.
Any approved sublease or assignment shall be expressly subject
to the terms and conditions of this Lease. Tenant shall deliver to Landlord
a copy of all agreements executed by Tenant and the proposed subtenant and assignee
with respect to the Premises. Landlord's approval of a sublease or assignment
shall not constitute a waiver of Landlord's right to consent to further assignments
or subleases.
If Tenant has any options to extend the term of this Lease
or to add other space to the Premises, such options shall not be available to
any subtenant or assignee, directly or indirectly without Landlord's express
written consent.
For purposes of this Article, any transfer or change in control
of Tenant by operation of law or otherwise, shall be deemed an assignment hereunder,
including, without limitation, any merger, consolidation, dissolution or any
change in the ownership of the controlling equity interests in Tenant, whether
in a single transaction or a series of related transactions.
Notwithstanding anything to the contrary contained in this
Article, Tenant shall have the right, without the prior written consent of Landlord,
to sublease the Premises to an Affiliate or to assign this Lease to an Affiliate.
Tenant shall comply with all of the requirements, terms and conditions of this
Article in connection with an assignment or sublease to an Affiliate.
RECAPTURE
Except in the case of an assignment or sublease to an Affiliate,
solely with respect to the portion of the Premises proposed to be sublet, Landlord
shall have the option to require Tenant (a) if the request is for consent to
a proposed sublease, to execute a sublease to Landlord or its designee for the
term and of the space covered by the proposed sublease, but at the Rent per
square foot and otherwise upon the same terms and conditions as are contained
in this Lease (not including the restrictions on subleasing set forth in this
Paragraph), together with an assignment of Tenant's interest as sublessor in
the proposed sublease, or (b) if the request is for consent to a proposed assignment,
to terminate this Lease effective as of the date preceding the date upon which
the assignment is to become effective.
EXCESS RENT
If Landlord shall give its consent to any assignment of this
Lease or to any sublease, Tenant shall in consideration therefor pay to Landlord,
as Additional Rent, an amount equal to 50% of the Sublease Profit. The term
"Sublease Profit" means the sum of the following amounts less the Sublease Expenses
(which shall be amortized on a straight line basis over the term of the sublease
or the remaining term of the assignment, as the case may be): in the case of
an assignment, an amount equal to all sums and other consideration due from
the assignee for or by reason of such assignment; and in the case of a sublease,
any rents, additional rents and other consideration payable under the sublease
to Tenant by the subtenant which are in excess of the Rent payable under this
Lease in respect of the subleased space (at the rate per square foot payable
by Tenant hereunder) for the sublease term.
The sums payable as set forth above shall be paid to Landlord
as additional Rent as and when due and payable from the assignee or subtenant
to Tenant. The term "Sublease Expenses" means reasonable legal fees, reasonable
advertising costs, reasonable architectural and engineering costs, standard
brokerage commissions paid by Tenant to procure the subtenant or assignee and
costs of alterations paid for by Tenant for the subtenant or assignee.
TENANT LIABILITY
In the event of any sublease or assignment, Tenant shall not
be released or discharged from any liability, whether past, present or future,
under this Lease, including any liability arising from the exercise of any renewal
or expansion option by any subtenant or assignee. The foregoing shall not be
construed to affect anything to the contrary contained herein.
ASSUMPTION AND ATTORNMENT
If Tenant shall assign this Lease as permitted herein, the
assignee shall expressly assume all of the obligations of Tenant hereunder in
a written instrument satisfactory to Landlord and furnished to Landlord
not later than fifteen (15) days prior to the effective date of the assignment.
If Tenant shall sublease the Premises as permitted herein, Tenant shall, at
Landlord's option, within fifteen (15) days following any request by Landlord, obtain and furnish to Landlord the written agreement
of such subtenant to the effect that upon notice from Landlord, which may be
given at any time following a Default by Tenant the subtenant will attorn to
Landlord and will pay all subrent directly to Landlord.
ARTICLE X.
DEFAULT AND REMEDIES
DEFAULTS
The occurrence or existence of any one or more of the following
shall constitute a "Default" by Tenant under this Lease:
Tenant fails to pay any installment or other payment of Rent
including without limitation Rent Adjustments within 10 days after the date
when due, subject to written notice of such Default from Landlord provided however,
such overdue payment shall be subject to the Default Rate from and after the
1 11h day subsequent to the due date for such particular payment, notwithstanding
the nonreceipt of Landlord's written notice of such Default;
Tenant fails to observe or perform any of the other covenants,
conditions or provisions of this Lease and fails to cure such default within
fifteen (15) days after written notice thereof to Tenant (unless the default
involves a hazardous condition, which shall be cured forthwith);
the interest of Tenant in this Lease is levied upon under execution
or other legal process;
a petition is filed by or against Tenant to declare Tenant
bankrupt or seeking a plan of reorganization or arrangement under any Chapter
of the Federal Bankruptcy Code, or any amendment, replacement or substitution
therefor, or to delay payment of, reduce or modify Tenant's debts, which in
the case of an involuntary action is not discharged within thirty (30) days;
Tenant is declared insolvent by law or any assignment of Tenant's
property is made forl the benefit of creditors;
a receiver is appointed for Tenant or Tenant's property, which
appointment is not. discharged within thirty (30) days;
any action is taken by or against Tenant to reorganize or modify
Tenant's capital structure in a materially adverse way which in the case of
an involuntary action is not discharged within thirty (30) days;
the dissolution of Tenant; or
the third time within any Lease Year that Tenant fails to pay
Rent when due or has breached a particular covenant of this Lease (whether or
not such failure or breach is thereafter cured within any stated cure or grace
period or statutory period).
LANDLORD'S REMEDIES
Upon the occurrence of any Default, Landlord at any time thereafter
may at its option exercise any one or more of the following remedies:
Termination of Lease. Landlord may terminate this Lease,
by written notice to Tenant, without any right by Tenant to reinstate its rights
by payment of Rent due or other performance of the terms and conditions hereof.
Upon such termination Tenant shall immediately surrender possession of the Premises
to Landlord, and Landlord shall immediately become entitled to receive from
Tenant an amount equal to the difference between the aggregate of all Rent reserved
under this Lease for the balance of the Lease Term (including both Monthly Base
Rent and Rent Adjustments (the amount of the Rent Adjustments to be based on
historical amounts and Landlord's estimates for future amounts)), and the fair
rental value of the Premises for that period, determined as of the date of such
termination.
Reletting. With or without terminating this Lease, as
Landlord may elect, Landlord may re-enter and repossess the Premises, or any
part thereof, and lease them to any other person upon such terms as Landlord
shall deem reasonable, for a term within or beyond the Lease Term; provided,
that any such reletting prior to termination shall be for the account of Tenant,
and Tenant shall remain liable for (a) all Monthly Base Rent, Rent Adjustments
and other sums which would be payable under this Lease by Tenant in the absence
of such expiration, termination or repossession, less (b) the net proceeds,
if any, of any reletting effected for the account of Tenant determined by deducting
from the gross proceeds of any such reletting all of Landlord's expenses, attorneys'
fees and expenses, employees' expenses, reasonable alteration costs, expenses
of preparation for such reletting and all costs and expenses, direct or indirect,
incurred as a result of Tenant's breach of the Lease. Landlord and Tenant agree
that Landlord shall have no obligation to mitigate Landlord's damages under
this Lease. If the Premises are at the time of any Default sublet or leased
by Tenant to others, Landlord may, as Tenant's agent, collect rents due from
any subtenant or other tenant and apply such rents to the rent and other amounts
due hereunder without in any way affecting Tenant’s obligation to Landlord
hereunder. Such agency, being given for security, is hereby declared to be irrevocable.
Acceleration of Rent. Landlord may declare all Monthly
Base Rent and All Rent Adjustments (the amounts thereof to be based on historical
amounts and Landlord’s estimates for future amounts) for the entire balance
of the Term immediately due and payable, together with all other charges, payments,
costs, and expenses payable by Tenant as though such amounts were payable in
advance on the date the Default occurred.
Removal of Contents by Landlord. Landlord may remove
all persons and property from the Premises, and store such property in a public
warehouse or elsewhere at the cost of and for the account of Tenant, without
service of notice or resort to legal process (all of which Tenant expressly
waives) and without being deemed guilty of trespass or becoming liable for any
loss or damage which may be occasioned thereby.
Right of Distress and Lien. In addition to all other
rights and remedies of Landlord, if a Default shall occur, Landlord shall, to
the extent permitted by law, have a right of distress for rent and lien on all
of Tenant’s furniture, fixtures, merchandise and equipment in the Premises,
as security for rent and all other charges payable hereunder.
PROCEEDINGS
If proceedings shall be commenced by Landlord to recover possession
under the Acts of Assembly and Rules of Civil Procedure, either at the end of
the Term or upon the earlier termination of this Lease, or for non-payment of
Rent or any other reason, Tenant specifically waives the right to the notices
required by the Landlord and Tenant Act of 1951, as the same may be amended,
and agrees that five (5) days’ notice shall be sufficient in all cases.
SURVIVAL OF TENANT’S OBLIGATIONS
No expiration or termination of this Lease Term pursuant to
express terms above or by operation of law or otherwise (except as expressly
provided herein), and no repossession of the Premises or any part thereof shall
relieve Tenant of its liabilities and obligations hereunder, all of which shall
survive such expiration, termination or repossession, and Landlord may, at its
option, sue for and collect all Rent and other charges due hereunder at any
time as and when such charges accrue.
INJUNCTION
In the event of breach or threatened breach by Tenant of any
provision of this Lease, Landlord shall have the right of injunction and the
right to invoke any remedy allowed at law or in equity in addition to other
remedies provided for herein.
WAIVER OF REDEMPTION
Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future law in the event this Lease is terminated,
or in the event of Landlord obtaining possession of the Premises, or in the
event Tenant is evicted or dispossessed for any cause, by reason of violation
by Tenant of any of the provisions of this Lease.
NOT EXCLUSIVE RIGHT
No right or remedy herein conferred upon or reserved to Landlord
is intended to be exclusive of any other right or remedy herein or by law provided,
but each shall be cumulative and in addition to every other right or remedy
given herein or now or hereafter existing at law or in equity or by statute.
ATTORNEYS' FEES
In the event that Landlord commences suit for the repossession
of the Premises, for the recovery of Rent or any other amount due under the
provisions of this Lease, or because of the breach of any other covenant herein
contained on the part of Tenant to be kept or performed, Tenant shall pay to
Landlord all costs and expenses incurred in connection therewith, including
reasonable attorneys' fees. In addition, Tenant shall pay upon demand, all costs and expenses, including reasonable attorneys'
fees, incurred by Landlord in any litigation, negotiation or transaction in
which Tenant causes Landlord, without Landlord's fault, to become involved or
concerned.
BANKRUPTCY
The following provisions shall apply in the event of the bankruptcy
or insolvency of Tenant:
In connection with any proceeding under Chapter 7 of the Federal
Bankruptcy Code where the trustee of Tenant elects to assume this Lease for
the purposes of assigning it, such election or assignment, may only be made
upon compliance with the provisions of this Article which conditions Landlord
and Tenant acknowledge to be commercially reasonable. In the event the trustee
elects to reject this Lease then Landlord shall immediately be entitled to possession
of the Premises without further obligation to Tenant or the trustee.
Any election to assume this Lease under Chapter 11 or 13 of
the Federal Bankruptcy Code by Tenant as debtor-in-possession or by Tenant's
trustee (the "Electing Party") must provide for the Electing Party to cure or
provide to Landlord adequate assurance that it will cure all monetary defaults
under this Lease within fifteen (15) days from the date of assumption and it
will cure all nonmonetary defaults under this Lease within thirty (30) days
from the date of assumption. Landlord and Tenant acknowledge such condition
to be commercially reasonable.
If the Electing Party has assumed this Lease or elects to assign
Tenant's interest under this Lease to any other person, such interest may be
assigned only if the intended assignee has provided adequate assurance of future
performance (as herein defined), of all of the obligations imposed on Tenant
under this Lease. For the purposes hereof, "adequate assurance of future performance"
means that Landlord has ascertained that each of the following conditions has
been satisfied: (a) the assignee has submitted a current financial statement,
certified by its chief financial officer, which shows a net worth and working
capital in amounts sufficient to assure the future performance by the assignee
of Tenant's obligations under this Lease and (b) Landlord has obtained consents
or waivers from any third parties which may be required under a lease, mortgage,
financing arrangement, or other agreement by which Landlord is bound, to enable
Landlord to permit such assignment.
Landlord's acceptance of Rent or any other payment from any
trustee, receiver, assignee, person, or other entity will not be deemed to have
waived, or waive, the requirement of Landlord's consent, Landlord's right to
terminate this Lease for any transfer of Tenant's interest under this Lease
without such consent, or Landlord's claim for any amount of Rent due from Tenant.
ARTICLE XI.
SURRENDER OF PREMISES
IN GENERAL
Upon the Termination Date, Tenant shall surrender and vacate
the Premises immediately and deliver possession thereof to Landlord in a clean,
good and tenantable condition, ordinary wear and tear, and damage caused by
Landlord excepted. Tenant shall deliver to Landlord all keys to the Premises.
Tenant shall be entitled to remove from the Premises all movable personal property
of Tenant, Tenant's trade fixtures and such Tenant Additions which at the time
of their installation Landlord and Tenant agreed may be -removed by Tenant.
Tenant shall also remove such other Tenant Additions as required by Landlord,
including, but not limited to, any Tenant Additions containing Hazardous Materials
or those that would be costly and expensive for Landlord to remove, such as
safes or raised flooring. Tenant immediately shall repair all damage resulting
from removal of any of Tenant's property, furnishings or Tenant Additions, shall
close all floor, ceiling and roof openings and shall restore the Premises to
a tenantable condition as reasonably determined by Landlord. If any of the Tenant
Additions which were installed by Tenant involved the lowering of ceilings,
raising of floors or the installation of specialized wall or floor coverings
or lights, then Tenant shall also be obligated to return such surfaces to their
condition prior to the commencement of this Lease. Tenant shall also be required
to close any staircases or other openings between floors. In the event possession
of the Premises is not delivered to Landlord when required hereunder, or if
Tenant shall fail to remove those items described above, Landlord may, at Tenant's
expense, remove any of such property therefrom without any liability to Landlord
and undertake, at Tenant's expense, such restoration work as Landlord deems
necessary or advisable.
LANDLORD'S RIGHTS
All property which may be removed from the Premises by Landlord
shall be conclusively presumed to have been abandoned by Tenant and Landlord
may deal with such property as provided herein. Tenant shall also reimburse
Landlord for all costs and expenses incurred by Landlord in removing any of
Tenant Additions and in restoring the Premises to the condition required by
this Lease at the Termination Date.
ARTICLE XII.
HOLDING OVER
Tenant shall pay Landlord the greater of (a) double the Monthly
Base Rent payable for the month immediately preceding the holding over or, (b)
150% the fair market rental value of the Premises as reasonably determined by
Landlord, for each month or portion thereof that Tenant retains possession of
the Premises, or any portion thereof, after the Termination Date (without reduction
for any partial month that Tenant retains possession), plus in each case all
Rent Adjustments and other amounts otherwise due. Tenant shall also pay all
damages sustained by Landlord by reason of such retention of possession. The
provisions of this Article shall not constitute a waiver by Landlord of any
re-entry rights of Landlord and Tenant's continued occupancy of the Premises
shall be as a tenancy in sufferance.
ARTICLE XIII.
DAMAGE BY FIRE OR OTHER CASUALTY
SUBSTANTIAL UNTENANTABILITY
If any fire or other casualty (whether insured or uninsured)
renders all or a substantial portion of the Premises or the Building untenantable,
Landlord shall, with reasonable promptness after the occurrence of such damage,
estimate the length of time that will be required to substantially complete
the repair and restoration and shall by notice advise Tenant of such estimate
("Landlord's Notice"). If Landlord estimates that the amount of time required
to substantially complete such repair and restoration will exceed 180 days from
the date such damage occurred, then Landlord, or Tenant if all or a substantial
portion of the Premises is rendered untenantable, shall have the right to terminate
this Lease as of the date of such damage upon giving written notice to the other
at any time within 20 days after delivery of Landlord's Notice, provided that
if Landlord so chooses, Landlord's Notice may also constitute such notice of
termination. As used herein, "substantial untenantability" with respect to the
Premises shall mean that Tenant can not and does not conduct business in the
Premises, as contemplated by this Lease and at least 50% percent of the Premises
has been damaged and is unaccessible. "Substantial untenatability" with respect
to the Building shall mean that at least 50% of the Building has been damaged
or destroyed, including the common areas used by Tenant to access the Premises.
Unless this Lease is terminated as provided in the preceding
subparagraph, Landlord shall proceed with reasonable promptness to repair and
restore the Premises to its condition as existed prior to such casualty, subject
to reasonable delays for insurance adjustments and Force Majeure delays, and
also subject to zoning laws and building codes then in effect. Landlord shall
have no liability to Tenant, and Tenant shall not be entitled to terminate this
Lease if such repairs and restoration are not in fact completed within the time
period estimated by Landlord so long as Landlord shall proceed with reasonable
diligence to complete such repairs and restoration.
Tenant acknowledges that Landlord shall be entitled to the
full proceeds of any insurance coverage, whether carried by Landlord or Tenant,
for damages to the Premises, except for those proceeds of Tenant's insurance
of its own personal property and equipment which would be removable by Tenant
at the Termination Date. All such insurance proceeds shall be payable to Landlord
whether or not the Premises are to be repaired and restored.
Notwithstanding anything to the contrary herein set forth:
(a) Landlord shall have no duty pursuant to this Paragraph to repair or restore
any portion of any3enant Additions or to expend for any repair or restoration
of the Premises or Building amounts in excess of insurance proceeds paid to
Landlord and available for repair or restoration; and (b) Tenant shall not have
the right to terminate this Lease pursuant to this Paragraph if any damage or
destruction was caused by the act or neglect of Tenant, its agent or employees.
Any repair or restoration of the Premises performed by Tenant
shall be in accordance with the provisions of Article IX hereof.
INSUBSTANTIAL UNTENANTABILITY
If the Premises or the Building is damaged by a casualty but
neither is rendered substantially untenantable, then Landlord shall proceed
to repair and restore the Building or the Premises other than Tenant Additions,
with reasonable promptness, unless such damage is to the Premises and occurs
during the last six (6) months of the Term, in which event either Tenant or
Landlord shall have the right to terminate this Lease as of the date of such
casualty by giving written notice thereof to the other within twenty (20) days
after the date of such casualty.
RENT ABATEMENT
Except in the case of fire or other casualty caused by the
negligence or willful act of Tenant or its agents, employees, contractors or
invitees, if all or any part of the Premises are rendered untenantable by fire
or other casualty and this Lease is not terminated, Monthly Base Rent and Rent
Adjustments shall abate for that part of the Premises which is untenantable
on a per them basis from the date of the casualty until Landlord has substantially
completed the repair and restoration work in the Premises which it is required
to perform, provided, that as a result of such casualty, Tenant does not occupy
the portion of the Premises which is untenantable during such period.
ARTICLE XIV.
EMINENT DOMAIN
TAKING OF WHOLE OR SUBSTANTIAL PART
In the event the whole or any substantial part of the Building
or of the Premises is taken or condemned by any competent authority for any
public use or purpose (including a deed given in lieu of condemnation) and is
thereby rendered untenantable, this Lease shall terminate as of the date title
vests in such authority, and Monthly Base Rent and Rent Adjustments shall be
apportioned as of the Termination Date. Notwithstanding anything to the contrary
herein set forth, in the event the taking is temporary (for less than a majority
portion of the remaining term of the Lease), Landlord may elect either (a) to
terminate this Lease or (b) permit Tenant to receive the entire award in which
case Tenant shall continue to pay Rent and this Lease shall not terminate.
TAKING OF PART
Subject to the express terms of Tenant's right to terminate
this Lease, in the paragraph next following, in the event a part of the Building
or the Premises is taken or condemned by any competent authority (or a deed
is delivered in lieu of condemnation) and this Lease is not terminated, the
Lease shall be amended to reduce or increase, as the case may be, the Monthly
Base Rent and Tenant's Proportionate Share to reflect the Rentable Area of the
Premises or Building, as the case may be, remaining after any such taking or
condemnation. Landlord, upon receipt and to the extent of the award in condemnation
(or proceeds of sale) shall make necessary repairs and restorations to the Premises
(exclusive of Tenant Additions) and to the Building to the extent necessary
to constitute the portion of the Building not so taken or condemned as a complete
architectural and economically efficient unit. Notwithstanding the foregoing,
if as a result of any taking, or a governmental order that the grade of any
street or alley adjacent to the Building is to be changed and such taking
or change of grade makes it necessary or desirable to substantially remodel
or restore the Building or prevents the economical operation of the Building,
Landlord shall have the right to terminate this Lease upon ninety (90) days
prior written notice to Tenant.
TENANT OPTION TO TERMINATE
Notwithstanding anything to the contrary contained herein,
in the event of a permanent partial taking of the Building or the Premises and
as a result of such there is a material adverse interference with Tenant's ability
to conduct business from the Premises as contemplated by this Lease, Tenant
shall have the right to terminate this Lease upon not less than 30 days written
notice to Landlord following the vesting of title in condemning authority, time
being of the essence.
COMPENSATION
Landlord shall be entitled to receive the entire award (or
proceeds) from any taking, condemnation or deed in lieu thereof without any
payment to Tenant, and Tenant hereby assigns to Landlord Tenant's interest,
if any, in such award; provided, however, that Tenant may make a separate claim
against the condemning authority for any moving, removal and business dislocation
damages or expenses payable to tenants under the Pennsylvania Eminent Domain
Code of 1964, as amended, but in no event shall Tenant make any claim against
Landlord, or the condemning authority or any party having an interest in the
Property which would result in the diminution or reduction in the award for
the Property payable to Landlord or to any other party having an interest in
the Property.
ARTICLE XV.
INSURANCE
TENANT'S INSURANCE
Tenant, at Tenant's expense, agrees to maintain in force, with
a company or companies acceptable to Landlord, during the Term:
Commercial General Liability Insurance on a primary basis and
without any right of contribution from any insurance carried by Landlord covering
the Premises on an occurrence basis against all claims for personal injury,
bodily injury, death and property damage, including contractual liability covering
the indemnification provisions in this Lease. Such insurance shall be for such
limits that are reasonably required by Landlord from time to time but not less
than a combined single limit of Five Million and No/100 Dollars ($5,000,000.00);
Workers' Compensation and Employers' Liability Insurance for
an amount of not less than One Million and No/100 Dollars ($1,000,000.00), both
in accordance with the laws of the Commonwealth of Pennsylvania;
"All Risks" property insurance in an amount adequate to cover
the full replacement cost of all equipment, installations, fixtures and contents
of the Premises in the event of loss and any such policy shall contain a provision
pursuant to which the insurance carriers waive their rights of subrogation against
Landlord;
Business interruption insurance in an amount sufficient to
reimburse Tenant for loss of earnings attributable to prevention of access to
the Building or Premises for a period of at least one year.
In the event a motor vehicle is to be used by Tenant in connection
with its business operation from the Premises, Comprehensive Automobile Liability
Insurance coverage with limits of not less than Three Million and No/100 Dollars
($3,000,000.00) combined single limit coverage against bodily injury liability
and property damage liability arising out of the use by or on behalf of Tenant,
its agents and employees in connection with this Lease, of any owned, non-owned or hired motor vehicles;
and
Such other insurance or coverages as Landlord reasonably requires.
FORM OF POLICIES
Each policy referred to in 16.1 shall (a) name Landlord and
the Indemnitees as additional insureds, (b) be issued by one or more responsible
insurance companies licensed to do business in Pennsylvania reasonably satisfactory
to Landlord, (c) where applicable, provide for deductible amounts satisfactory
to Landlord and not permit co-insurance, (d) provide that such insurance may
not be canceled or amended without thirty (30) days' prior written notice to
the Landlord, and (e) provide that the policy shall not be invalidated should
the insured waive in writing prior to a loss, any or all rights of recovery
against any other party for losses covered by such policies. Tenant shall deliver
to Landlord certificates of insurance not less than ten (10) days prior to the
Commencement Date and not less than ten (10) days prior to the expiration date
of each policy. Further, at Landlord's request, Tenant shall allow Landlord
or its authorized representative the right to examine, at the Premises, the
actual policies and renewals thereof to be maintained by Tenant hereunder,
LANDLORD'S INSURANCE
Landlord agrees to purchase and keep in full force and effect
during the Term hereof, including any extensions or renewals thereof, insurance
under policies issued by insurers of recognized responsibility, qualified to
do business in Pennsylvania on the Building in amounts not less than the greater
of eighty (80%) percent of the then full replacement cost (without depreciation)
of the Building (above foundations) or an amount sufficient to prevent Landlord
from becoming a co-insurer under the terms of the applicable policies, against
fire and such other risks as may be included in standard forms of all risk coverage
insurance reasonably available from time to time. Landlord agrees to maintain
in force during the Term, Commercial General Liability Insurance covering the
Building on an occurrence basis against all claims for personal injury, bodily
injury, death and property damage. Such insurance shall be for a combined single
limit of Five Million and No/100 Dollars ($5,000,000.00). Neither Landlord's
obligation to carry such insurance nor the carrying of such insurance shall
be deemed to be an indemnity by Landlord with respect to any claim, liability,
loss, cost or expense due, in whole or in part, to Tenant's negligent acts or
omissions or willful misconduct.
WAIVER OF SUBROGATION
Landlord agrees that, if obtainable at no, or minimal, additional
cost, it will include in its "All Risks" policies appropriate clauses pursuant
to which the insurance companies (a) waive all right of subrogation against
Tenant with respect to losses payable under such policies and/or. (b) agree
that such policies shall not be invalidated should the insured waive in writing
prior to a loss any or all right of recovery against any party for losses covered
by such policies.
Tenant agrees to include, if obtainable at no, or minimal,
additional cost, in its "All Risks" insurance policy or policies on its furniture,
furnishings, fixtures and other property removable by Tenant under the provisions
of its lease of space in the Building appropriate clauses pursuant to which
the insurance company or companies (a) waive the right of subrogation against
Landlord and any tenant of space in the Building with respect to losses payable
under such policy or policies and/or (b) agree that such policy or policies
shall not be invalidated should the insured waive in writing prior to a loss
any or all right of recovery against any party for losses covered by such policy
or policies. If Tenant is unable to obtain in such policy or policies either
of the clauses described in the preceding sentence, Tenant shall, if legally
possible and without necessitating a change in insurance carriers, have
Landlord named in such policy or policies as an additional insured. If Landlord
shall be named as an additional insured in accordance with the foregoing, Landlord
agrees to endorse promptly to the order of Tenant, without recourse, any check,
draft, or order for the payment of money representing the proceeds of any such
policy or representing any other payment growing out of or connected with said
policies, and Landlord does hereby irrevocably waive any and all rights in and
to such proceeds and payments.
Provided that Landlord's right of full recovery under its policy
or policies aforesaid is not adversely affected or prejudiced thereby, Landlord
hereby waives any and all right of recovery which it might otherwise have against
Tenant, its servants, agents and employees, for loss or damage occurring to
the Building and the fixtures, appurtenances and equipment therein, to the extent
the same is covered by Landlord's insurance, notwithstanding that such loss
or damage may result from the negligence or fault of Tenant, its agents or employees.
Provided that Tenant's right of full recovery under its aforesaid policy or
policies is not adversely affected or prejudiced thereby, Tenant hereby waives
any and all right of recovery which it might otherwise have against Landlord,
its agents and employees and against every other tenant in the Building who
shall have executed a similar waiver as set forth in this Paragraph for loss
or damage to Tenant's furniture, furnishings, fixtures and other property removable
by Tenant under the provisions hereof to the extent that same is covered by
Tenant's insurance, notwithstanding that such loss or damage may result from
the negligence or fault of Landlord, its agents or employees, or such other
tenant and the agents or employees thereof.
Landlord and Tenant hereby agree to advise the other promptly
if the clauses to be included in their respective insurance policies pursuant
to this Article cannot be obtained on the terms hereinbefore provided and thereafter
to furnish the other with a certificate of insurance or copy of such policies
showing the naming of the other as an additional insured, as aforesaid. Landlord
and Tenant hereby also agree to notify the other promptly of any cancellation
or change of the terms of any such policy which would affect such clauses or
naming. All such policies which name both Landlord and Tenant as. additional
insureds shall, to the extent obtainable, contain agreements by the insurers
to the effect that no act or omission of any additional insured will invalidate
the policy as to the other additional insureds.
NOTICE OF CASUALTY
Tenant shall give Landlord notice in case of a fire or accident
in the Premises promptly after Tenant is aware of such event.
SELF INSURANCE
Notwithstanding anything to the contrary in this Article XV,
Landlord agrees that, provided (i) Tenant maintains a regular program of self-insurance
covering Tenant with regard to the insurance required under this Article XV,
which program includes adequate cash reserves to cover all loss contingencies
in accordance with generally accepted actuarial principles and (ii) Tenant maintains
at all times when self-insurance is in full force and effect a minimum net worth
of not less than One Hundred Million Dollars ($100,000,000.00) and (iii) upon
the reasonable request by Landlord, Tenant evidences to Landlord's reasonable
satisfaction Tenant's compliance with these net worth requirements, subject
to the further terms and conditions of this paragraph, Tenant shall be permitted
to self-insure through such program of self-insurance and, in such event, such
self-insurance shall be deemed to be the equivalent of commercially procured
insurance for all purposes of the Lease (including, without limitation, the
waiver of subrogation provisions). In the event Tenant cannot meet all the requirements
of this paragraph at any time, Tenant agrees that it will obtain from third
party insurance carriers (meeting the criteria set forth above in this Article
XV) the insurance required under this Article XV. Tenant agrees to indemnify
and hold Landlord harmless from and against any claim, damage, loss, liability
or expense (including, without limitation, reasonable attorney's fees) which
is sustained or incurred by Landlord as a result of (i) Tenant's election to
self-insure pursuant to this paragraph in lieu of obtaining third party insurance
and 60 any violation by Tenant of the requirements of this paragraph.
BLANKET POLICY
Expressly provided that, at all times, the minimum limits and
other requirements of this Article XV are complied with and maintained with respect
to the Building and the Premises, as required by the Lease, Landlord agrees that
Tenant may effect the insurance required hereunder with a so-called - "blanket" policy
of insurance whereby multiple locations and additional named insureds are
named and part of a single policy.
ARTICLE XVI.
WAIVER OF CLAIMS AND INDEMNITY
WAIVER OF CLAIMS
To the extent permitted by law, Tenant releases the Indemnitees
from, and waives all claims for, damage to person or property sustained by Tenant
or any occupant of the Building or Premises resulting directly or indirectly
from any existing or future condition, defect, matter or thing in and about
the Property or the Premises or any part of either or any equipment or appurtenance
therein, or resulting from any accident in or about the Property, or resulting
directly or indirectly from any act or neglect of any tenant or occupant of
the Building or of any other person, including Landlord, its agents and employees-
except where resulting from the willful and wrongful act of any of the Indemnitees.
Tenant hereby waives any consequential damages, compensation or claims for inconvenience
or loss of business, rents, or profits as a result of such injury or
damage. If any such damage, whether to the Premises or to any part of the Property
or any part thereof, or whether to Landlord or to other tenants in the Building,
results from any act or neglect of Tenant, its employees, agents, contractors,
invitees and customers, Tenant shall be liable therefor and Landlord may, at
Landlord's option, repair such damage and Tenant shall, upon demand by Landlord,
as payment of additional Rent hereunder, reimburse Landlord within ten (10)
days of demand for the total cost of such repairs, in excess of amounts, if
any, paid to Landlord under insurance covering such damages. Tenant shall not
be liable for any damage caused by its acts or neglect if Landlord or a tenant
has recovered the full amount of the damage from proceeds of insurance policies
and the insurance company has waived its right of subrogation against Tenant.
INDEMNITY BY TENANT
To the extent permitted by law, Tenant agrees to indemnify,
protect, defend and hold the Indemnitees harmless against any and all actions,
claims, demands, damages, judgments, suits, liabilities, losses, costs and expenses,
including reasonable attorneys' fees and expenses for the defense thereof, arising
from Tenant's occupancy of the Premises, from the undertaking of any Tenant
Additions or repairs to the Premises, from the conduct of Tenant's business
on the Premises, from any breach or default on the part of Tenant in the performance
of any covenant or agreement on the part of Tenant to be performed pursuant
to the terms of this Lease, or from any willful or negligent act of Tenant,
its agents, contractors, employees, customers or invitees, in or about the Premises,
but only to the extent of Landlord's liability, if any, in excess of amounts,
if any, paid to Landlord under insurance covering such claims or liabilities.
In case of any action or proceeding brought against the Indemnitees by reason
of any such claim, upon notice from Landlord, Tenant covenants to defend such
action or proceeding by counsel reasonably satisfactory to Landlord.
ARTICLE XVII.
RULES AND REGULATIONS
RULES
Tenant agrees for itself and for its subtenants, employees,
agents, invitees and contractors to comply with the rules and regulations listed
on Exhibit D attached hereto and with all reasonable modifications and additions
thereto which Landlord may make from time to time, provided, however, in the
event of a conflict with the rules and regulations and the express terms and
conditions of this Lease, the express terms and conditions of the Lease shall
control. Tenant shall pay to Landlord all damages caused by the failure of Tenant,
its subtenants, employees, agents, invitees and contractors, to comply with
the provisions of this Paragraph and shall also pay to Landlord as' additional
Rent an amount equal to any increase in insurance premiums caused by such failure
to comply.
ENFORCEMENT
Nothing in this Lease shall be construed to impose upon Landlord
any duty or obligation to enforce the rules and regulations as set forth on
Exhibit D or as hereafter adopted, or the terms, covenants or conditions of
any other lease as against any other tenant, and Landlord shall not be liable
to Tenant for violation of the same by any other tenant, its servants, employees,
agents, visitors or licensees.
ARTICLE XVIII.
LANDLORD'S RESERVED RIGHTS
Landlord shall have the following rights exercisable without
notice to Tenant and without liability to Tenant for damage or injury to persons,
property or business and without being deemed an eviction or disturbance of
Tenant's use or possession of the Premises or giving rise to any claim for setoff
or abatement of Rent: (a) to change the Building's name or street address; (b)
to install, affix and maintain all signs on the exterior and/or interior of
the Building; (c) to designate and/or approve prior to installation, all types
of signs, window shades, blinds, drapes, awnings or other similar items, and
all internal lighting that may be visible from the exterior of the Premises;
(d) upon reasonable notice to Tenant, to display the Premises to prospective
tenants at reasonable hours during the last twelve (12) months of the Term;
(e) to grant to any party the exclusive right to conduct any business or render
any service in or to the Building, provided such exclusive right shall not operate
to prohibit Tenant from using the Premises for the purpose permitted hereunder;
(f) to change the arrangement and/or location of entrances or passageways, doors
and doorways, corridors, elevators, stairs, washrooms or public portions of
the Building, and to close entrances, doors, corridors, elevators or other facilities,
provided that such action shall not materially and adversely interfere with
Tenant's access to the Premises or the Building; (g) to have access for Landlord
and other tenants of the Building to any mail chutes and boxes located in or
on the Premises as required by any applicable rules of the United States Post
Office; and (h) to close the Building after normal business hours, except that
Tenant and its employees and invitees shall be entitled to admission at all
times, under such regulations as Landlord prescribes for security purposes.
ARTICLE XIX.
ESTOPPEL CERTIFICATE
IN GENERAL
Within fifteen (15) days after written request therefor by
Landlord, Mortgagee or any prospective mortgagee or owner, Tenant agrees as
directed in such request to execute an Estoppel Certificate in recordable form,
binding upon Tenant, certifying (a) that this Lease is unmodified and in full
force and effect (or if there have been modifications, a description of such
modifications and that this Lease as modified is in full force and effect; (b)
the dates to which Rent has been paid; (c) that Tenant is in the possession
of the Premises if that is the case; (d) that Landlord is not in default under
this Lease, or, if Tenant believes Landlord is in default, the nature thereof
in detail; (e) that Tenant has no off-sets or defenses to the performance of
its obligations under this Lease (or if Tenant believes there are any off-sets
or defenses, a full and complete explanation thereof); (f) that the Premises
have been completed in accordance with the terms and provisions hereof and that
Tenant has accepted the Premises and the condition thereof and of all improvements
thereto and has no claims against Landlord or any other party with respect thereto;
(g) that if an assignment of rents or leases has been served upon the Tenant
by a Mortgagee, Tenant will acknowledge receipt thereof and agree to be bound
by the provisions thereof; (h) that Tenant will give to the Mortgagee copies
of all notices required or permitted to be given by Tenant to Landlord; and
(i) to any other information reasonably requested.
ENFORCEMENT
In the event that Tenant fails to deliver an Estoppel Certificate,
then such failure shall be a Default for which there shall be no cure or grace
period. In addition to any other remedy available to Landlord, in the event
Tenant fails to deliver an Estoppel Certificate and Tenant shall be deemed to
have irrevocably appointed Landlord as Tenant's attorney-in-fact to execute
and deliver such Estoppel Certificate.
ARTICLE XX.
[Intentionally Omitted]
ARTICLE XXI.
REAL ESTATE BROKERS
Tenant represents that, except for LaSalle Partners, Insignia/ESG,
Inc. and Cushman & Wakefield, Inc. (collectively, the "Brokers"), Tenant
has not dealt with any real estate broker, sales person, or finder in connection
with this Lease, and no such person initiated or participated in the negotiation
of this Lease, or showed the Premise s to Tenant. Tenant hereby agrees to indemnify,
protect, defend and hold Landlord and the Indemnitees, harmless from and against
any and all liabilities and claims for commissions and fees arising out of a
breach of the foregoing representation. Landlord shall be responsible for the
payment of all commissions to the Brokers further provided that neither Landlord
nor Tenant shall be responsible for the commission, if any, due Insignia/ESG,
Inc.
ARTICLE XXII.
MORTGAGEE PROTECTION
SUBORDINATION AND ATTORNMENT
This Lease is and shall be expressly subject and subordinate
at all times to (a) any ground or underlying lease of the Real Property, now
or hereafter existing, and all amendments, renewals and modifications to any
such lease, and (b) the lien of any first mortgage or trust deed now or hereafter
encumbering fee title to the Real Property and/or the leasehold estate under
any such lease, unless such ground lease or ground lessor, or mortgage or Mortgagee,
expressly provides or elects that the Lease shall be superior to such lease
or mortgage. This subordination shall be self-operative and no further certificate
or instrument of subordination need be required by any such Mortgagee or ground
lessor. In confirmation of such subordination, however, Tenant shall execute
promptly any reasonable certificate or instrument that Landlord, Mortgagee or
ground lessor may request.
If any such mortgage or trust deed is foreclosed, or if any
such lease is terminated, upon request of the Mortgagee or ground lessor, as
the case may be, Tenant will attorn to the purchaser. at the foreclosure sale
or to the ground lessor under such lease, as the case may be, provided, however,
that such purchaser or ground lessor shall not be (a) bound by any payment of
Rent for more than one month -in advance; (b) subject to any offset, defense
or damages arising out of a default of any obligations of any preceding Landlord;
(c) bound by any amendment or modification of this Lease made without the written
consent of the Mortgagee or ground lessor; or (d) liable for any security deposits
not actually received by such purchaser or ground lessor. Upon request by such
successor in interest, Tenant shall execute and deliver reasonable instruments
confirming the attornment provided for herein.
Anything contained herein to the contrary notwithstanding,
Landlord agrees to use its "best efforts", as that term is herebelow defined,
to obtain in writing an agreement from the holder of any future mortgage or
ground lessor under any ground lease not to disturb Tenant's possession
of the Premises so long as Tenant is not in default under this Lease beyond
applicable grace and cure periods, which agreement would be in form and content
substantially similar to Exhibit NDA, attached hereto and made a part hereof.
It is understood that the "use of best efforts" shall mean that Landlord will
use commercially reasonable efforts to obtain such agreement but shall (i) not
require or be construed to require Landlord to incur any charges or expenses
in an effort to obtain such non-disturbance agreement and (ii) only require
Landlord to request the non-disturbance agreement and that if the holder of
any such mortgage or the ground lessor, as the case may be, refuses to
grant non-disturbance, Landlord's sole obligation hereunder shall be to advise
Tenant of the rejection and to furnish Tenant with the name and address of the
Mortgagee or ground lessor, or the representative or officer with whom Tenant
shall, at its option, be free to communicate with to request such non-disturbance
agreement. Notwithstanding anything to the contrary contained herein or otherwise,
in the event the holder of any such mortgage or any such ground lessor is unwilling
to enter into a non-disturbance agreement comparable to Exhibit NDA with Tenant
for a reason other than Tenant's default (beyond applicable notice and cure
periods) under this Lease, this Lease shall not be subordinate to such mortgage
or ground lease.
MORTGAGEE PROTECTION
Tenant agrees to give any Mortgagee or ground lessor, by registered
or certified mail, a copy of any notice of default served upon the Landlord
by Tenant, provided that prior to such notice Tenant has received notice (by
way of service on Tenant of a copy of an assignment of rents and leases, or
otherwise) of the address of such Mortgagee or ground lessor. Tenant further
agrees that if Landlord shall have failed to cure such default within the time
provided for in this Lease, then the Mortgagee or ground lessor shall have the
right to cure such default within thirty (30) days after receipt of notice from
Tenant of Landlord's failure to cure the default within the required time period.
If such default cannot be cured by Mortgagee within that time, then the Mortgagee
or ground lessor shall have such additional time after notice of Landlord's
failure to cure as may be necessary, if, within such thirty (30) days, any Mortgagee
or ground lessor has commenced and is diligently pursuing the remedies necessary
to cure such default (including but not limited to commencement of foreclosure
proceedings or other proceedings to acquire possession of the Real Property,
if necessary to effect such cure). Such period of time shall be extended by
any period within which such Mortgagee or ground lessor is prevented from commencing
or pursuing such foreclosure proceedings or other proceedings to acquire possession
of the Real Property by reason of Landlord's bankruptcy. Until the time allowed
as aforesaid for Mortgagee or ground lessor to cure such defaults has expired
without cure, Tenant shall have no right to, and shall not, exercise any remedy
on account of default by Landlord under this Lease.
This Lease may not be modified or amended so as to reduce the
Rent or shorten the Term, or so as to adversely affect in any other respect
to any material extent the rights of the Landlord, nor shall this Lease be canceled
or surrendered, without the- prior written consent, in each instance, of the
ground lessor or the Mortgagee.
If any Mortgagee requires a modification of this Lease which
shall not result in any increased cost or expense to Tenant or in any other
substantial and adverse change in the rights and obligations of Tenant hereunder,
then Tenant agrees that the Lease may be so modified and agrees to execute whatever
documents are required therefor.
ARTICLE XXIII
NOTICES IN GENERAL
All notices, demands or requests provided for or permitted
to be given pursuant to this Lease must be in writing and shall be personally
delivered, sent by Federal Express or other overnight courier service, or mailed
by first class, registered or certified mail, return receipt requested, postage
prepaid.
ADDRESSES
All notices, demands or requests to be sent pursuant to this
Lease shall be deemed to have been properly given or served by delivering or
sending the same in accordance with this Section, addressed to the parties hereto
at their respective addresses listed below:
Notices to Landlord shall be addressed:
Centre Square
c/o Cushman & Wakefield, Inc.
Centre Square, Lower Mezzanine
1500 Market Street
Philadelphia, PA 19102
with a copy to the following:
Metropolitan Life Insurance Company
Real Estate Investment Management
8300 Boone Boulevard, Suite 750
Vienna, VA 22182
Attention: Regional Manager
Notices to Tenant shall be addressed:
Lincoln National Corporation
1500 Market Street
Suite 3900
Philadelphia, Pennsylvania 19102
Attention: Jon A. Boscia, Chief Executive Officer and
President
with a copy to the following:
Lincoln Investment Management, Inc.
200 East Berry Street
Investment Law, 2R13
Fort Wayne, Indiana 46802
Attention: Senior Counsel
EFFECTIVE DATE
Notices, demands or requests given by registered or certified
mail shall be effective upon being deposited in the United States mail. However,
the time period in which a response to any such notice, demand or request must
be given shall commence to run from the date of receipt on the return receipt
of the notice, demand or request by the addressee thereof. Notices, demands
or requests given by personal service, Federal Express or other nationally recognized
overnight courier shall be effective upon receipt by an employee, officer, director
or partner of Landlord or Tenant. Rejection or other refusal to accept or the
inability to deliver because of changed address of which no notice was given
shall be deemed to be receipt of the notice, demand or request sent.
CHANGE OF ADDRESS
By giving to the other party at least thirty (30) days written
notice thereof, either party shall have the right from time to time during the
term of this Lease to change their respective addresses for notices, demands
and requests, provided such new address shall be within the United States of
America.
ARTICLE XXIV
SATELLITE DISH
Expressly provided Tenant is not in default beyond any applicable
notice and grace period, Tenant may install and maintain, at its own cost and
expense, a satellite or microwave dish on the roof of the Building and use available
riser space to connect such dish with the Premises further expressly provided
W Tenant remits to Landlord with its installment of Monthly Base Rent a fee
equal to $1,000.00 per month for each foot in diameter of the dish or if a vertical
antenna, $1,000.00 per month of each foot in height of the antenna; (ii) Landlord
approves, which approval shall not be unreasonably withheld or delayed,
(a) Tenant's satellite dish, (b) its method and means of installation, (c) its
location on the roof, and (d) the structural reinforcement required; (iii) a
location to install said dish is available; and (iv) Tenant pays any and all
costs of removal of said dish and roof restoration in connection therewith.
ARTICLE XXV
SIGNAGE
Landlord agrees, at its expense, to provide identifying Building
standard signage for Tenant in the directory in the lobby area of the Building
as well as the west bank elevator lobby on the 39th floor. In addition, Landlord
agrees, at Tenant's expense, to provide identifying Building standard signage
for Tenant in the lobby area on the main floor of the Building adjacent to the
west bank elevator serving the Premises, which signage, Tenant acknowledges,
may be subject to the approval of the First Union National Bank.
ARTICLE XXVI
RENEWAL OPTION
FIRST RENEWAL TERM
By written notice delivered to Landlord on or before the date
which is eighteen (18) months prior to the expiration of the term of this Lease
(the "Exercise Date"), time being of the essence, expressly provided
that Tenant is not in default in any respect under the terms of the Lease beyond
any applicable notice and grace period on (i) the Exercise Date and (ii) the
Expiration Date, Tenant shall have the option to extend the term of the Lease
for five (5) years commencing on the first day following the Expiration Date
and ending on the date which is five (5) years thereafter (hereinafter called
the "first renewal term") upon the same terms and conditions hereof except that
the Base Rent to be paid by Tenant for the first renewal term shall be the annual
fair market rental value for the Premises, as determined as hereinafter set
forth, and to be effective on the first day of the first renewal term. In this
regard, no earlier than one hundred eighty (180) days and no later than one
hundred twenty (120) days prior to the Expiration Date, which sixty (60)
day period is hereinafter referred to as the "Exchange Period", Landlord shall
submit to Tenant a statement of Landlord's determination of the annual fair
market rental value for the clemised premises for the first renewal term, which
statement shall show the basis upon which such determination was made. Landlord's
determination of the annual fair market rental value shall give due consideration
to the rents charged by Landlord for all leases of comparably sized space (excluding
exercise of renewal rights where the tenant had a right of renewal under the
terms of its lease) entered into by Landlord for the twelve (12) month period
preceding the first day of the Exchange Period, except that if there were no
such leases or such leases were so peculiar to a particular situation that no
true comparables would be derived, Landlord may expand the basis of its determination
to include the rents being charged by other owners of first class office buildings
of a quality and character similar to the Building and located within the vicinity
of the Building in downtown Philadelphia. Within ten (10) business days after
receipt of Landlord's determination, Tenant may either (i) rescind the exercise
of its option, (ii) accept Landlord's determination of the annual fair market
rental value or (iii) provide Landlord with its own determination of the annual
fair market rental value, including the basis upon which such determination
was made. If Tenant elects option (iii), then Landlord and Tenant shall, for
a period of thirty (30) days after Landlord's receipt of Tenant's determination,
negotiate in good faith to determine the annual fair market rental value and
if Landlord and Tenant are unsuccessful in reaching agreement within such thirty
(30) days, either Landlord or Tenant may cause the issue to be arbitrated as
hereinafter in this Article XXVI set forth. Except for the Base Rent and Construction
Allowance, the first renewal term shall be upon all of the terms, covenants
and conditions contained in this Lease provided, however, Landlord, at its sole
cost and expense, and for the first renewal term only, shall provide Tenant
with an allowance to paint and carpet the Premises, with Building standard materials.
FAIR MARKET VALUE DETERMINATION
In the event either Landlord or Tenant elect to arbitrate the
issue of annual fair market rental value, such issue shall be determined by
arbitration as hereinafter provided. Landlord and Tenant shall each appoint
a fit and impartial person as an arbitrator who shall have at least ten (10)
years' experience in the commercial real estate industry in the City of Philadelphia
(a "Qualified Arbitrator"). Such appointment shall be indicated in writing by
each party to the other. The arbitrators so appointed shall appoint a third
Qualified Arbitrator within ten (10) business days after the appointment of
the second arbitrator. In case either party shall fail to appoint a Qualified
Arbitrator within a period of ten (10) business days after written notice from
the other party to make such appointment, the American Arbitration Association,
or its successor (the "AAA") shall appoint such Qualified Arbitrator(s). The
two (2) arbitrators so appointed shall appoint the third (3rd) arbitrator within
ten (10) business days after the appointment of the second (2nd) arbitrator,
otherwise the AAA shall similarly make such appointment. The arbitrators shall
proceed with all reasonable dispatch to determine the annual fair market rental
value and under all circumstances shall be bound by the terms of this Lease
and shall not add to, subtract from, or otherwise modify such provisions. The
arbitrators sole discretion in determining the question submitted shall be limited
to selecting one of the annual fair market rental values submitted by Landlord
or Tenant. The decision of the arbitrators shall, in any event, be rendered
within thirty (30) days after their appointment and such decision shall be in
writing and in duplicate with one counterpart delivered to each Landlord and
Tenant. The arbitration shall be conducted in accordance with the rules of the
AAA and applicable Pennsylvania law, and a decision of a majority of the arbitrators
shall be binding, final and conclusive upon Landlord and Tenant. The fees of
the arbitrators and the expenses incident to the proceedings shall be
shared equally between Landlord and Tenant.
In the event the determination of the Base Rent rate is not
finalized until after the first day of the first renewal term, Tenant shall
continue paying the Base Rent and additional rent for Taxes and Operating Expenses
payable for the last year of the term of this Lease, and additional rent as
provided in item 00 of the last sentence of Section A hereof. At such time as
the Base Rent is determined, the Base Rent shall be retroactively adjusted to
the first day of the first renewal term, and Tenant shall [within ten (10) business
days of Landlord's written demand] pay to Landlord the increased Base Rent for
the period between the first day of the first renewal term and the last day
of the month in which Landlord's demand for such payment was made, and commencing
on the first day of the month following the month in which such demand for the
lump sum payment was made by Landlord, Tenant shall start making monthly installments
of basic annual rent in the amount as finally determined.
ADDITIONAL RENEWAL OPTIONS
By written notice delivered to Landlord not later than eighteen
(18) months prior to the end of the first renewal term, time being of
the essence, expressly provided that Tenant is not in default in any respect
under the terms of the Lease subject to applicable notice and cure periods on
(i) the date of delivery of said notice or (ii) the last day of the first renewal
term, Tenant shall have the option to again extend the term of the Lease for
an additional five (5) years (the "second renewal term") upon the same terms
and conditions hereof except that there will be no Construction Allowance for
paint and carpet for the second renewal term and the Base Rent shall be the
fair market value for the Premises, as determined in the same manner as herein
set forth in this Article XXVI for the renewal term, to be effective on the
first day of the second renewal term.
By written notice delivered to Landlord not later than eighteen
(18) months prior to the end of the second renewal term, time being of the essence,
expressly provided that Tenant is not in default in any respect under the terms
of the Lease subject to applicable notice and cure periods on (i) the date of
delivery of said notice or (ii) the last day of the second renewal term, Tenant
shall, again, have the option to again extend the term of the Lease for an additional
five (5) years (the "third renewal term") upon the same terms and conditions
hereof except that there will be no Construction Allowance for paint and carpet
for the third renewal term and the Base Rent shall be the fair market value
for the Premises, as determined in the same manner as herein set forth in this
Article XXVI for the renewal term, to be effective on the first day of the third
renewal term.
ARTICLE XXVII
EXPANSION OPTION
RIGHT OF SECOND OFFER
In the event that during the term of this Lease, the 8,942
rentable square foot portion of the 27" floor of the West Tower of the Building,
as shown hatched on Exhibit F, attached hereto and made a part hereof, the "Offer
Space" "becomes available", as such term is hereinafter- defined, and provided
(i)Tenant is not then in default hereunder at such time (subject to applicable
notice and cure periods), and provided Landlord, in its sole and absolute discretion,
has not renewed the existing tenant or occupants (or anyone claiming by, under
or through any of said parties, or any of their successors, assigns and subtenants)
or the existing tenant or occupants (or anyone claiming by, under or through
any of said parties, or any of their successors, assigns and subtenants) of
the Offer Space has not "heldover", and provided (iii) the tenant with a superior
right to Tenant has not exercised its (superior) right of first offer to lease
the Offer Space, Landlord shall offer such space for lease to Tenant in writing
and Tenant shall have 20 days to respond to Landlord, time being of the essence,
to accept or reject such offer, it being understood that a failure to respond
shall be deemed a rejection of the offer. In the event Tenant effectively elects
to lease the Offer Space, Landlord and Tenant shall enter into a modification
of this Lease incorporating such space in this Lease with such changes as shall
be necessary to modify the terms of this Lease relative to such space. The terms
shall be the same as those for the Premises with the Offer Space to be thereafter
deemed part of the Premises, except that (a) the annual rent shall be at the
then escalated rent for the Premises and (b) the lease term for the Offer
Space shall terminate on the same date the within Lease terminates and (c)
Tenant's proportionate share for Taxes and Operating Expenses, as set forth
in Article I of this Lease, shall be appropriately adjusted to include the Offer
Space and (d) a prorated (with respect to the balance of the term remaining)
Construction Allowance shall be provided. If Tenant does not exercise its option
to lease the Offer Space, Landlord may, at any time thereafter, offer the space
for lease to any other person or entity on the same or on different terms and
conditions than those stated herein, it being understood and agreed that time
is of the essence with respect to the exercise by Tenant pursuant to this Article
and that if Tenant does not act within the time limitation set forth above,
any writing purporting to so exercise by Tenant to Landlord shall be void and
of no force or effect. Further, Tenant understands and acknowledges that once
a particular portion of space has been offered Tenant and declined, Landlord
has no further obligation to Tenant with respect to such portion. The term "becomes
available" shall mean that Landlord, subsequent to the Commencement Date, has
(a) acquired, or (b) a reasonable expectation of acquiring possession of the
Offer Space in accordance with, the provisions of this Article.
ARTICLE XXVIII
MISCELLANEOUS
USE AND OCCUPANCY TAXES
Tenant. shall pay to Landlord any use and occupancy tax (or
its equivalent) imposed upon the Premises by any governmental authority. Landlord
shall remit amounts paid to it by Tenant to the appropriate governmental authority.
LATE CHARGES
All payments required hereunder (other than the Monthly Base
Rent and Rent Adjustments which shall be due as hereinbefore provided) to Landlord
shall be paid within ten (10) days after Landlord's demand therefor.
All amounts (including, without limitation Monthly Base Rent and Rent Adjustments)
not paid when due shall bear interest from the date due until the date paid
at the Default Rate in effect on the date such payment was due.
NO WAIVER
Notwithstanding anything to the contrary contained in this
Lease, it is understood and agreed that no provision of this Lease shall be
deemed waived by Landlord or Tenant unless such waiver is signed by the applicable
party waiving its rights.
ARBITRATION
Anything to the contrary contained herein notwithstanding,
if there is an unresolved dispute between Landlord and Tenant as to the timeliness
of Landlord's consent or the reasonableness of Landlord's refusal to consent
to any subletting or assignment, or in connection with an "Operating Expense
Adjustment", Landlord and Tenant agree to diligently proceed in good faith to
have such dispute resolved by arbitration in the City of Philadelphia in accordance
with the rules of The American Arbitration Association (or its successor) by
a panel of three arbitrators using, to the extent possible, short expedited
time frames. Each arbitrator shall be an attorney with at least 10 years office
leasing experience for first class office buildings in downtown Philadelphia.
Landlord and Tenant shall each, within ten (10) business days of the written
notice of one party to the other to arbitrate, designate an arbitrator meeting
the foregoing requirements and the two arbitrators so designated shall, within
five (5) business days thereafter, select a third arbitrator and, if they do
not do so, the third arbitrator shall be selected by The American Arbitration
Association (or its successor). The arbitration shall commence within five (5)
business days of the selection of the third arbitrator. The costs and expenses
of arbitration shall be shared equally by Landlord and Tenant, but each party
shall be responsible for its own costs and expenses and the fees and expenses
of its own witnesses and counsel and the arbitrator designated by it. In rendering
their decisiont the arbitrators. shall have no power to vary, modify or amend
any provision of this Lease. A determination made by arbitration pursuant to
this Section shall be final and binding upon the parties and unless reasonably
impractical, such determination shall be made within five (5) business days
following the presentation by Landlord and Tenant.
DEFAULT UNDER OTHER LEASE
It shall be a Default under this Lease if Tgenant- or any Affiliate
under any other lease with Landlord for premises in the Building defaults under
such lease and as a result thereof such lease is terminated or terminable.
OPTION
The submission of this instrument to Tenant for review, examination
and execution does not constitute a reservation of or option for the Premises
or an agreement to enter into a Lease, and this Lease shall become effective
only if and when Landlord signs and delivers the same to Tenant; provided, however,
the signing and delivery by Tenant of this Lease to Landlord or its property
manager or leasing agent shall constitute an irrevocable offer by Tenant
to lease the Premises on the terms and conditions in this Lease, which offer
may not be withdrawn or revoked for fifteen (15) days after such signing and
delivery.
TENANT AUTHORITY
Tenant represents and warrants to Landlord that it has full
authority and power to enter into and perform its obligations under this Lease,
that this lease is a binding obligation of Tenant enforceable in accordance
with its terms, and that no consent or authorization is necessary from any third
party. If Tenant is a corporation, Landlord may require that concurrently with
the delivery of a signed Lease to Landlord, Tenant deliver certified resolutions
of Tenant's board of directors, authorizing the execution and delivery of this
Lease. Each individual executing this Lease on behalf of Tenant represents and
warrants that he or she is duly authorized to execute and deliver this Lease
on behalf of Tenant.
ENTIRE AGREEMENT
This Lease, the Exhibits attached hereto contain the entire
agreement between Landlord and Tenant concerning the Premises and there are
no other agreements, either oral or written. This Lease shall not be modified
except by a writing executed by Landlord and Tenant.
EXCULPATION
Tenant agrees, on its behalf and on behalf of its successors
and assigns, that any liability or obligation of Landlord under this Lease shall
only be enforced against landlord's equity interest in the Property and in no
event against any other assets of the Landlord, or Landlord's officers, directors
or partners.
ACCORD AND SATISFACTION
No payment by Tenant or receipt by Landlord of a lesser amount
than any installment or payment of Rent due shall be deemed to be other than
on account of the amount due, and no endorsement or statement on any check or
any letter accompanying any check or payment of Rent shall be deemed an accord
and satisfaction, and Landlord may accept such check or payment without prejudice
to Landlord's right to recover the balance of such installment or payment of
Rent or pursue any other remedies available to Landlord. No receipt of money
by Landlord from Tenant after the termination of this Lease or Tenant's right
of possession of the Premises shall reinstate, continue or extend the Term.
LANDLORD'S OBLIGATIONS ON SALE OF BUILDING
In the event of any sale or other transfer of the Building,
Landlord shall be entirely freed and relieved of all agreements and obligations
of Landlord hereunder accruing or to be performed after the date of such sale
or transfer, provided that all of Landlord's obligations hereunder are specifically
assumed by the buyer or transferee.
BINDING EFFECT
This Lease shall be binding upon and inure to the benefit of
Landlord and Tenant and their respective heirs, legal representatives, successors
and permitted assigns.
CAPTIONS
The Article and Paragraph captions in this Lease are inserted
only as a matter of convenience and in no way define, limit, construe, or describe
the scope or intent of such Articles and Sections.
APPLICABLE LAW
This Lease shall be construed in accordance with the laws of
the Commonwealth of Pennsylvania. If any term, covenant or condition of this
Lease or the application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this Lease, or the application
of such term, covenant or condition to persons or circumstances other than those
as to which it is held invalid or unenforceable, shall not be affected thereby
and each item, covenant or condition of this Lease shall be valid and be enforced
to the fullest extent permitted by law.
ABANDONMENT
In the event Tenant abandons the Premises but is otherwise
in compliance with all the terms, covenants and conditions of this Lease, Landlord
shall (a) have the right to enter into the Premises in order to show the space
to prospective tenants, (b) have the right to reduce the services provided to
Tenant pursuant to the terms of this Lease to such levels as Landlord reasonably
determines to be adequate services for an unoccupied premises and (c) during
the last six (6) months of the Term, have the right to prepare the Premises
for occupancy by another tenant upon the end of the Term.
LANDLORD'S RIGHT TO PERFORM TENANT'S DUTIES
If Tenant fails timely to perform any of its duties under this
Lease, Landlord shall have the right (but not the obligation), to perform such
duty on behalf and at the expense of Tenant without prior notice to Tenant,
and all sums expended or expenses incurred by Landlord in performing such duty
shall be deemed to be additional Rent under this Lease and shall be due and
payable upon demand by Landlord.
RIDERS
All Riders attached hereto and executed both by Landlord and
Tenant shall be deemed to be a part hereof and hereby incorporated herein.
IN WITNESS WHEREOF, this Lease has been executed as of the
Commencement Date.
LANDLORD: TENANT:
CENTRE SQUARE LINCOLN NATIONAL MANAGEMENT CORPORATION
By: Metropolitan Life Insurance Company
By:_____________________________
general partner
Its_____________________________
_________________________________
By: Christine Madigan,
Assitant Vice-President
EXHIBIT A
PLAN OF PREMISES
EXHIBIT B
LANDLORD’S WORK
None.
EXHIBIT C
[Intentionally Omitted As Not Applicable]
EXHIBIT D
RULES AND REGULATIONS
(1) No sign, lettering, picture, notice or advertisement shall
be placed on any outside window or in a position to be visible from outside
the Premises and if visible from the outside or public corridors within the
Building shall be installed in such manner and be of such character and style
as Landlord shall approve in writing.
(2) Tenant shall not use the name of the Building for any purpose
other than Tenant's business address; Tenant shall not use the name of the Building
for. Tenant's business address after Tenant vacates the Premises; nor shall
Tenant use any picture or likeness of the Building in any circulars, notices,
advertisements or correspondence.
(3) No article which is explosive or inherently dangerous is
allowed in the Building.
(4) Tenant shall not represent itself as being associated with
any company or corporation by which the Building may be known or names.
(5) Sidewalks, entrances, passages, courts, corridors, halls,
elevators and stairways in and about the Premises shall not be obstructed.
(6) No animals (except for dogs in the company of a blind person),
pets, bicycles or other vehicles shall be brought or permitted to be in the
Building or the Premises.
(7) Room-to-room canvasses to solicit business from other tenants
of the Building are not permitted; Tenant shall not advertise the business,
profession or activities of Tenant conducted in the Building in any manner which
violates any code of ethics by any recognized association or organization pertaining
to such business, profession or activities.
(8) Tenant shall not waste electricity, water or air-conditioning
and shall cooperate fully with Landlord to assure the most effective and efficient
operation of the Building's heating and air-conditioning systems.
(9) No locks or similar devices shall be attached to any door
except by Landlord and Landlord shall have the right to retain a key to all
such locks. Tenant may not install any locks without Landlord's prior approval.
(10) Tenant assumes full responsibility of protecting the Premises
from theft, robbery and pilferage; the Indemnitees shall not be liable for damage
thereto or theft or misappropriation thereof. Except during Tenant's normal
business hours, Tenant shall keep all doors to the Premises locked and other
means of entry to the Premises closed and secured. All corridor doors shall
remain closed at all times. If Tenant desires telegraphic, telephones, burglar
alarms or other electronic mechanical devices, the Landlord will, upon request
direct where and how connections and all wiring for such services shall be installed
and no boring, cutting or installing of wires or cables is permitted without
Landlord's approval.
(11) Except with the prior approval of Landlord, all cleaning,
repairing, janitorial, decorating, painting or other services and work in and
about the Premises shall be done only by authorized Building -personnel.
(12) The weight, size and location of safes, furniture, equipment,
machines and other large or bulky articles shall be subject to Landlord's approval
and shall be brought to the Building and into and out of the Premises at such
times and in such manner as the Landlord shall direct and at Tenant's sole risk
and cost. Prior to Tenant's removal of any of such articles from the Building,
Tenant shall obtain written authorization of the Office of the Building and
shall present such authorization to a designated employee of Landlord.
(13) Tenant shall not overload-the safe capacity of the electrical
writing of the Building and the Premises or exceed the capacity of the feeders
to the Building or risers.
(14) To the extent permitted by law, Tenant shall not cause
or permit picketing or other activity which would interfere with the business
of Landlord or any other tenant or occupant of the Building, or distribution
of written materials involving its employees in' or about the Building, except
in those locations and subject to time and other limitations as to which Landlord
may give prior written consent.
(15) Tenant shall not cook, otherwise prepare or sell any food
or beverages in or from the Premises or use the Premises for housing accommodations
or lodging or sleeping purposes except that Tenant may install and maintain
vending machines, coffee/beverage stations and food warming equipment and eating
facilities for the benefit of its employees or guests, provide the same are
maintained in compliance with applicable laws and regulations and do not disturb
other tenants in the Building with odor, refuse or pests.
(16) Tenant shall not permit the use of any apparatus for sound
production or transmission in such manner that the sound so transmitted or produced
shall be audible or vibrations therefrom shall be detectable beyond the Premises;
nor permit objectionable odors or vapors to emanate from the Premises.
(17) No floor covering shall be affixed to any floor in the
Premises by means of glue or other adhesive without Landlord's prior written
consent.
(18) [Intentionally omitted]
(19) Tenant shall only use the freight elevator for mail carts,
dollies and other similar devices for delivering material between floors that
Tenant may occupy.
(20) No smoking, eating, drinking, loitering or laying is permitted
in the Common Area except in designated areas.
(21) Landlord may require that all persons who enter or leave
the Building identify themselves to security guards, by registration or otherwise.
-Landlord, however, shall have no responsibility or liability for any theft,
robbery or other crime in the Building. Tenant shall assume full responsibility
for protecting the Premises, including keeping all doors to the Premises locked
after the close of business.
(22) Tenant shall comply with all safety, fire protection and
evacuation procedures and regulations established by Landlord or any governmental
agency and shall cooperate and participate in all reasonable security and safety
programs affecting the Building.
EXHIBIT NDA
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
NON-DISTURBANCE, SUBORDINATION AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
(this "Agreement") made and entered into as of the _____ day of _________, _____________
by and among CENTRE SQUARE, a Pennsylvania general partnership having an office
c/o Metropolitan Life Insurance Company at 8300 Boone Boulevard, Suite 750,
Vienna Virginia 22182 ("Owner"), ________________________, having an office
at ("Mortgagee"), and LINCOLN NATIONAL MANAGEMENT CORPORATION, an Indiana corporation
having an office at 1500 Market Street, Philadelphia, Pennsylvania 19102 ("Tenant").
WITNESSETH:
WHEREAS, Owner owns the improved real property described in
Schedule A annexed hereto (the "Premises");
WHEREAS, Mortgagee is the owner and holder of the mortgage
encumbering . the Premises described in Schedule B annexed hereto (the "Mortgage");
WHEREAS, pursuant to a lease dated as of ________________,
199_ (the "Lease"), Tenant has leased from Owner, as landlord, a portion of
the Premises (the "Leased Premises") more particularly described therein; and
WHEREAS, Mortgagee has agreed to recognize the status of Tenant
in the event Mortgagee shall acquire the title to the Premises by foreclosure,
by the acceptance of a deed in lieu thereof, or by any other means and Tenant
has agreed to attorn to Mortgagee in any such event.
NOW THEREFORE, in consideration of the foregoing, the mutual
covenants hereinafter mentioned and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Mortgagee hereby consents to the Lease.
2. Tenant hereby agrees that the Lease is and shall be under,
subject and subordinate at all times to the lien, right, title and terms of
the Mortgage.
3. So long as Tenant (a) is not in default under the Lease
beyond the expiration of any applicable grace or cure periods and (b) has not
canceled or terminated the Lease, nor surrendered or abandoned the Leased Premises,
in the event that Mortgagee shall commence an action to foreclose the Mortgage
or to otherwise acquire title to, and possession of, the Premises, Tenant shall
not be joined as a party defendant in any such action or proceeding (unless,
as a condition precedent to commencing or proceeding with any such action to
foreclose the Mortgage or to otherwise acquire title to, and possession of,
the Premises, Mortgagee is required by statute, judicial decision or the court
in which such action or proceeding has been commenced or is pending so to name
Tenant as a party defendant) and Tenant shall not be disturbed in its possession
of the Leased Premises nor shall the Lease be terminated.
4. If (a) Mortgagee shall acquire title to, and possession
of, the Premises upon foreclosure in an action in which Mortgagee shall have
been required to name Tenant as a party defendant, and (b) Tenant is not in
default under the Lease beyond any applicable cure or grace periods, has not
canceled or terminated the Lease nor surrendered or abandoned the Leased Premises
at the time Mortgagee shall so acquire title to, and possession of, the Premises,
then, in such event, Mortgagee shall enter into a new lease with Tenant upon
the same terms and conditions as were contained in the Lease, except that (x)
the obligations and liabilities of Mortgagee under any such new lease shall
be subject to the terms and conditions of this Agreement (including, without
limitation, the provisions of Paragraphs 5, 6 and 7 hereof), (y) without limiting
the generality of clause (x) above, Mortgagee shall, in no event, have any obligations
or liabilities to Tenant under any such new lease beyond those of Owner (or
its predecessors-in-interest) as were contained in the Lease (to the extent
assumed by Mortgagee under this Agreement), and (z) the expiration date of such
new lease shall coincide with the original expiration date of the Lease. Tenant
shall execute any such new lease and shall attorn to Mortgagee or its nominee,
successors or assigns or any purchaser (as the case may be) as to establish
direct privity between Mortgagee and Tenant.
5. If (a) Mortgagee shall acquire title to, and possession
of, the Premises upon foreclosure in an action in which Tenant has not been
named as a party defendant, or by deed in lieu of foreclosure, or by any other
means and (b) Tenant is not in default under the Lease beyond any applicable
cure or grace periods and Tenant has not surrendered or abandoned the Leased
Premises at the time Mortgagee shall so acquire title to and possession of the
Premises:
(i) Tenant shall be deemed to have made a full and complete attornment to Mortgagee
so as to establish direct privity between Mortgagee and Tenant;
(ii) all obligations of Tenant under the Lease shall continue in full force
and effect and be enforceable against Tenant by Mortgagee, with the same force
and effect as if the Lease had originally been made and entered into directly
by and between Mortgagee, as landlord thereunder, and Tenant; and
(iii) Mortgagee shall recognize and accept the rights of Tenant under the Lease
and, subject to the provisions of Paragraphs 6 and 7 hereof, shall thereafter
assume the obligations of Owner under the Lease in respect of Owner's obligations
under the Lease thereafter failing due subject, in all events, to (A) the provisions
of Paragraph 6 and 7 below and (B) Tenant's waiver, as against Mortgagee, of
any defaults of Owner (whether or not curable) which occurred prior to Mortgagee
acquiring title to, and possession of, the Premises which shall not then
be continuing.
6. Nothing herein contained shall impose any obligation upon
Mortgagee to perform any of the obligations of Owner under the Lease, unless
and until Mortgagee shall take possession of the Premises, and, in any event,
Mortgagee shall have no liability with respect. to any acts or omissions of
Owner occurring prior to the date on which Mortgagee shall take possession of
the Premises which shall not continue after the date on which Mortgagee shall
take possession of the Premises.
7. Tenant hereby agrees that notwithstanding anything to the
contrary in this Agreement or the Lease:
(a) no material amendment, modification, termination, assignment
or sublease of the Lease shall be effective against Mortgagee, unless consented
to in writing by Mortgagee, which consent shall not be unreasonably withheld
or delayed;
(b) Mortgagee shall not be bound by any advance payment of
rent or additional rent to Owner (or its predecessors-in-interest) in excess
of one month's prepayment thereof, in the case of rent, or in excess of one
periodic payment in advance, in the case of additional rent, except as specifically
provided in the Lease or expressly approved in writing by Mortgagee;
(c) Mortgagee shall not be liable for any act or omission of
Owner (or, its predecessor-in-interest) which shall not then be continuing;
and
(d) Mortgagee shall not be subject to any offsets or defenses
which Tenant might have against Owner unless and to the extent specifically
set forth in the Lease.
8. Tenant hereby agrees to provide Mortgagee with prompt notice
of any asserted default by Owner of its obligations under the Lease. In the
event any such asserted default constitutes a legal basis for the cancellation
of the Lease by Tenant, Tenant hereby agrees that the Lease shall not
be canceled or terminated until Mortgagee shall have a reasonable period of
time within which to (a) obtain possession of the Leased Premises, and (b) cure
such default.
9. Tenant and Owner hereby agree that, in the event that Mortgagee
delivers to Tenant a notice W stating that an Event of Default (as defined in
the Mortgage) has occurred under the Mortgage and (ii) requesting that all rent
and additional rent due under the Lease be thereafter paid to Mortgagee, Tenant
shall pay, and is hereby authorized and directed by Owner to pay, such rent
and additional rent directly to Mortgagee. Delivery to Tenant of the aforedescribed
notice from Mortgagee shall be conclusive evidence of the right of Mortgagee
to receive such rents and payment of the rents by Tenant to Mortgagee pursuant
to such notice shall constitute performance in full of Tenant's obligation under
the Lease to pay such rents to Owner. If and to the extent that the Lease or
any provision of law shall entitle Tenant to notice of any mortgage, Tenant
acknowledges and agrees that this Agreement shall constitute such notice to
Tenant of the existence of the Mortgage. Tenant acknowledges that it has notice
that the Lease and the rent and all other sums due thereunder have been assigned
to Mortgagee as part of the security for the Loan Documents.
10. Except as otherwise indicated at the end of this Agreement,
each of Owner and Tenant represents and warrants to Mortgagee that, as of the
date hereof, there are no agreements other than the Lease in existence or contemplated
between Owner and Tenant, relating to the Premises or the Leased Premises or
with respect to any other matter related to Tenant's occupancy of the Leased
Premises.
11. Owner, by its execution of this Agreement, agrees to be
bound by and to act in accordance with the terms and conditions hereinabove
contained.
12. This Agreement (i) shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, (6) contains the
entire agreement among the parties with respect to the subject matter hereof
and (iii) may not be modified, nor may any provision hereof be waived, orally
or in any manner other than by an agreement in writing signed by the parties
hereto or their respective successors, administrators and assigns.
13. All notices to be given hereunder shall be in writing and
shall be deemed sufficiently given if (a) hand delivered, (b) delivered by reputable
overnight courier or (c) mailed by certified mail, return receipt requested,
in each case to the address of each party as set forth above. Each such notice
shall be deemed to be effective, in the case of mail deliveries, on the second
business day after mailing, and otherwise, upon receipted delivery or refusal.
Any party may change its address for notice by notifying the other parties hereunder
in accordance with the provisions of this Paragraph 13.
14. All rights of Mortgagee hereunder shall accrue to, and
all obligations of Mortgagee shall be binding upon, Mortgagee, its successors,
assigns and nominees, including, without limitation, the grantee under a deed
in lieu of foreclosure and/or the purchaser of the Premises at a foreclosure
sale or at any sale of the Premises following the granting of a deed in lieu
of foreclosure or following foreclosure; provided, however, that following any
sale or other transfer of its interest in the Premises, Mortgagee, any such
grantee or purchaser (as the case may be) shall be fully released and discharged
of and from any and all obligations and liabilities of any kind hereunder or
under the Lease and/or under any such new lease thereafter arising._ Without
limiting the generality of the foregoing, this Agreement shall be binding upon
and inure to the benefit of the successors, administrators and permitted assigns
of Owner and Tenant hereto.
IN WITNESS WHEREOF, this Agreement has been executed as of
the day and year first above set forth.
Owner- CENTRE SQUARE
By Metropolitan Life Insurance Company,
Its general partner
By:
Title:
Date
Mortgagee:
By:
Title:
Date:
Tenant: LINCOLN NATIONAL MANAGEMENT CORPORATION
By:
Title:
Date:
State of ________________)
______________________)ss:
County of _______________)
On this _____ day of _______________, 19 , before me personally
came _______________, to me known, who being duly sworn, did depose and say
that (s)he is a ______________________ of METROPOLITAN LIFE INSURANCE COMPANY,
a New York corporation, the general partner of the partnership described in,
and which executed, the foregoing instrument; and the (s)he signed (her)his
name thereto by authority of the board of directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand this _____
day of _______________, 1996.
___________________________
Notary Public
My Commission Expires: ________________________
State of ________________)
______________________)ss:
County of _______________)
On this _____ day of _______________, 19 , before me personally
came _______________, to me known, who being duly sworn, did depose and say
that (s)he is a ______________________ of___________________________, a _______________
corporation, the corporation described in, and which executed, the foregoing
instrument; and the (s)he signed (her)his name thereto by authority of the board
of directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand this _____
day of _______________, 1996.
___________________________
Notary Public
My Commission Expires: ________________________
State of ________________)
______________________)ss:
County of _______________)
On this _____ day of _______________, 19 , before me personally
came _______________, to me known, who being duly sworn, did depose and say
that (s)he is a ______________________ ofLincoln National Management Corporation,
an Indiana corporation, the corporation described in, and which executed, the
foregoing instrument; and the (s)he signed (her)his name thereto by authority
of the board of directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand this _____
day of _______________, 1996.
___________________________
Notary Public
My Commission Expires: ________________________
SCHEDULE A
Description of Premises
SCHEDULE B
Description of Mortgage
