5.3 Rental Adjustment for Operating Costs
(a) Estimated Operating Costs. On the first day of each month through the end of the Term, Subtenant shall pay to the Sublandlord as additional Rent in accordance with the terms of Article 5.l(b) hereof, monthly installments equal to
one-twelfth (1/12th) of "Subtenant’s Pro Rata Share of Operating Costs" (defined as the product of (i) the total amount of Operating Costs multiplied by (ii) a fraction ("Subtenant’s Pro Rata Share"), the numerator of which is the number of
square feet of Rentable Area in the Subleased Premises and the denominator of which is the total number of square feet of Rentable Area of office space in the Building), which will be calculated and invoiced on a per rentable square foot basis.
Subtenant’s Pro Rata Share is initially 12.665% based on the initial Subleased Premises, but is subject to adjustment for any additional space subsequently subleased by Subtenant or any reduction in the space subleased by Subtenant. Subtenant shall
pay the monthly installments of Subtenant’s Pro Rata Share of Operating Costs based upon Prime Landlord’s estimate of the amount of Operating Costs for the forthcoming calendar year (the "Estimated Operating Costs"). Commencing for calendar year 2000, within ten (10) days after Sublandlord’s receipt of same from Prime Landlord, Sublandlord shall provide Subtenant with a copy of the written statement (the "
Estimated Operating Cost Statement") prepared by Prime Landlord for each calendar year setting forth the Estimated Operating Costs that Prime Landlord anticipates incurring during the forthcoming calendar year; provided, however, that the failure of Prime Landlord or Sublandlord
to provide any Estimated Operating Cost Statement shall not relieve Subtenant from its obligation to pay such monthly installments on account of Subtenant’s Pro Rata Share of Operating Costs at the rate then currently paid by Subtenant. So long as
the Prime Lease remains in effect, the Operating Costs per square foot of Rentable Area of the Building, as determined under the Prime Lease for each calendar year, shall be the Operating Costs per square foot of Rentable Area for purposes of this
sublease for each such calendar year.
(b) Final Adjustments. Within 150 days following the end of calendar year 2000 and each succeeding calendar year thereafter, Sublandlord shall, within ten (10) days after receipt thereof from Prime Landlord, furnish to Subtenant a
copy of Prime Landlord’s actual Operating Costs incurred during the prior calendar year, and a calculation of the final amount of Subtenant’s Pro Rata Share of the Operating Costs for such prior year ("Operating Cost Statement"). Within thirty (30) days following the receipt of each Operating Cost Statement, Subtenant shall pay to Sublandlord (or Sublandlord shall credit to Subtenant) any deficiency (or excess) between the installments paid
on account of Subtenant’s Pro Rata Share of Operating Costs based on the preceding year’s Estimated Operating Costs and the actual amount of Subtenant’s Pro Rata Share of Operating Costs for such calendar year. For any portion of the Term
as to any of the Subleased Premises that is less than a full calendar year, the actual amount of Subtenant’s Pro Rata Share of Operating Costs with respect to such portion of the Subleased Premises will be pro-rated on a per them basis based on the
number of days of the Term in the relevant calendar year.
(c) Audit Procedure. Sublandlord shall cause Prime Landlord to permit Subtenant, at its expense, at all reasonable times to audit Prime Landlord’s books and records relating to items affecting Operating Costs for any period for
which Rent payments become due; provided that Subtenant’s right to audit shall expire one (1) year after Prime Landlord has furnished to Sublandlord an audited statement of Operating Costs for the applicable year during the Term of this Sublease
(which Sublandlord shall forward to Subtenant) if Subtenant has not then notified Prime Landlord in writing of Subtenant’s election to conduct an audit. All audits shall be performed by an independent firm of certified public accountants compensated
at a cost not to exceed the cost that would be charged on an hourly basis by a "Big 5" accounting firm unrelated to Subtenant (but in no event on a contingent basis).
(1) If Subtenant has timely exercised its option to conduct an audit, Subtenant shall have a period of ninety (90) days in which to complete the audit, which ninety (90) day period shall commence after Prime Landlord has afforded Subtenant full
access to such documents regarding Subleased Premises as are in Prime Landlord’s possession or control and which are necessary to conduct the audit including, without limitation (to the extent within Prime Landlord’s possession or control), work
papers prepared by Prime Landlord’s certified public accountants, canceled checks, invoices, and such other documents as may be reasonably required. Subtenant shall have the right to receive the documentation described above for any year during the
Term of the Sublease including the year preceding the Rent Commencement Date in order to have a basis for comparison of Operating Costs.
(2) In the event that it is ultimately determined that (1) the Operating Costs billed by Prime Landlord exceeded the actual Operating Costs by at least three percent (3%) of the actual Operating Costs for such year and (ii) Subtenant has not
previously conducted an audit two (2) years preceding the year for which the audit is being conducted, Subtenant shall have the right to audit Operating Costs for such two (2) years to determine whether refunds are due for such two (2) prior years, and,
in addition thereto, Prime Landlord shall reimburse Subtenant for its reasonable costs of such audit; provided, however, that (1) if the Operating Costs billed by Prime Landlord do not exceed the actual Operating Costs for such year by three percent (3%)
or more, then Subtenant shall reimburse Prime Landlord for its reasonable costs of such audit; and (2) Subtenant shall not be entitled to recover any of its costs of such audit if Sublandlord performed or was performing its own audit of the Operating
Costs for the same time period and if Sublandlord’s auditor determined that the Operating Costs billed by Prime Landlord exceeded the actual Operating Costs by at least three percent (3% )of the actual Operating Costs for such year.
(3) Sublandlord shall cooperate, and shall cause Prime Landlord to cooperate with Subtenant to facilitate the performance of Subtenant’s audit. Subtenant may review such documentation during normal business hours at the Manager’s office
at the Property. Subtenant agrees to conduct the audit in a manner which will cause minimum disruption to the operation of the Prime Landlord and the management office of the Building.
(4) Subtenant agrees, for the benefit of Prime Landlord and Sublandlord, to keep and maintain all information gained from its inspection of Prime Landlord’s records confidential and Subtenant agrees that Subtenant and its auditors, employees or
agents shall not disclose it to any other party, except as required by law and except to Subtenant’s attorneys, accountants and advisors involved in such review who agree to maintain the confidentiality of such information, or except as necessary in
any action or arbitration proceeding involving the accuracy of the Operating Costs. If requested by Prime Landlord, Subtenant shall require its employees, attorneys, accountants or agents inspecting Prime Landlord’s records to sign a confidentiality
agreement (in form and substance reasonably acceptable to Subtenant) in favor of Prime Landlord as a condition of making the general ledger available to them.
(5) Subtenant’s exercise of its inspection and audit rights hereunder does not relieve Subtenant of its obligation to pay all Rent, including all disputed amounts, and Subtenant’s inspection and audit right under this Article may only be
exercised by Subtenant if Subtenant is not in an Event of Default under this Lease during the period that Subtenant is exercising its rights hereunder.
(6) Except as herein above specifically provided otherwise, if Subtenant fails timely to exercise its rights hereunder, such failure shall be conclusively deemed to constitute Subtenant’s approval of Prime Landlord’s Operating Cost
Statement for the year in question. This Article shall not be construed to allow any inspection or audit of Prime Landlord’s records by any subtenant of Subtenant unless Prime Landlord agrees otherwise, in its sole discretion, in any recognition
agreement entered into between Prime Landlord and such subtenant. This Article shall be the sole and exclusive method to be used by Subtenant to dispute the amount of Operating Costs and Subtenant hereby waives any other right at law or in equity
relating thereto.
(7) In the event that it is ultimately determined (by agreement of the parties or by a final court determination) that the actual Operating Costs for any year, as defined and chargeable to Subtenant under this Sublease, is less than the amount set
forth in the Operating Cost Statement submitted by Prime Landlord for such year, then Sublandlord shall credit such excess payments against Subtenant’s next monthly payment due in accordance with the terms of this Sublease, once received from Prime
Landlord, or, if this Sublease has expired, Prime Landlord shall promptly refund such excess payment to Sublandlord and Sublandlord shall refund such amount to Subtenant.
(8) Subtenant’s audit and reimbursement rights shall survive the expiration or earlier termination of this Sublease for a period of six (6) months after delivery of the Operating Cost Statement for the final calendar year during the Term.
(9) Notwithstanding anything else herein contained, Subtenant may not audit Prime Landlord’s records with respect to any period audited or made the subject of arbitration by Sublandlord. Sublandlord will not audit or arbitrate regarding Prime
Landlord’s records for any period without first obtaining Subtenant’s prior consent which will not to be unreasonably withheld, conditioned or delayed (with respect to the Subleased Premises only). The parties intend by this paragraph to
confirm that Prime Landlord shall be subject only to one audit with respect to the Subleased Premises for each calendar year.
6. Abatement for Failure of Building Systems
If the Subleased Premises or any portion thereof are rendered untenantable and are not used by Subtenant for a period of five (5) consecutive, or twelve (12) or more, business days in any twelve (12) month period (the "Eligibility Period
") as a result of failure of any Building System not caused by the negligent or willful acts or omissions of Subtenant or by a Force Majeure Event, Subtenant’s Rent shall be reduced and abated to the extent and in the same manner as provided in
Article 9.3(a) of the Prime Lease. Notwithstanding the foregoing, during any Rent abatement period under this Sublease, Subtenant shall pay Sublandlord as rent all normal charges for services and utilities (if any) provided to and used by Subtenant
during the period of the Rent abatement.
7. Subtenant Improvements; Allowance
7.1 Subtenant Improvements
Subtenant shall be entitled to make Subtenant Improvements to the Subleased Premises prior to the Rent Commencement Dates, in accordance with, and subject to (a) the terms and conditions of the Subtenant Improvement Letter attached hereto as Exhibit
"E," and hereby made a part hereof, and (b) the terms of the Consent.
7.2 Allowance
Subject to the terms and provisions of Exhibit "E," Sublandlord shall make available to Subtenant an amount not to exceed the product of (a) $25.00 (except for space on floors Pl and 2, as to which Sublandlord will make available $10.00) and
(b) the Rentable Area acquired by Subtenant at each respective Sublease Commencement Date in accordance with the Rentable Square Footage of each floor as set forth in Article 3 or Article 33 hereof (the "Allowance").
If the Allowance is insufficient to defray the entire cost of the Subtenant Improvements, the balance shall be paid entirely by Subtenant. Sublandlord has no obligation to advance more than the amount of the Allowance for such items under any
circumstances. Prime Landlord has no obligation to advance any money for Subtenant Improvements.
8. Utilities and Services
8.1 Sublandlord Obligations
Sublandlord shall cause Prime Landlord to furnish the following services and utilities to the Subleased Premises, the cost of which shall be included in Operating Expenses except as specifically provided otherwise herein, during Normal Working
Hours, subject to reasonable rules and regulations, from time to time:
(a) HVAC. Heating, ventilation and air conditioning ("HVAC") in accordance with the specifications attached hereto as Exhibit "F" and made a part hereof. Subtenant shall not use any equipment or lighting or
occupy the Subleased Premises with personnel so that heat generated by such use or occupancy affects the ambient temperature otherwise maintained in the Subleased Premises by the HVAC system in normal operation. In the event such use or occupancy affects
the ambient temperature, Sublandlord or Prime Landlord shall have the right to install any machinery or equipment which Prime Landlord reasonably deems necessary to restore temperature balance, including, without limitation, modifications to the standard
air conditioning equipment, and the cost thereof including the cost of installation and any additional cost of operation and maintenance incurred thereby, shall be paid by Subtenant to Prime Landlord upon demand by Prime Landlord. Sublandlord makes no
representation with respect to the adequacy or fitness of the HVAC equipment in the Building to maintain temperatures which may be required for, or because of, any special equipment of Subtenant, and neither Sublandlord nor Prime Landlord shall have any
liability for loss or damage in connection therewith.
(b) Electricity. Electric current for HVAC and an average of five (5) watts of electric current (connected load) per square foot of Rentable Area for power and lighting. Subtenant shall not install or operate any machinery,
appliances or equipment in the Subleased Premises which will in any way increase the amount of electricity usually furnished or supplied for use of the Subleased Premises as general office space; nor connect any apparatus, device, machinery, appliances or
equipment (except through existing electrical outlets in the Subleased Premises), for the purpose of using electric current. Sublandlord shall cause Prime Landlord to use commercially reasonable efforts to obtain the best electrical rate from competing
suppliers selected by Prime Landlord.
(c) Elevators. (i) Passenger elevator service to the Subleased Premises during Normal Working Hours and freight elevator service to the Subleased Premises during Normal Working Hours, excluding Saturdays, and (ii) during all other
hours, passenger elevator cab service in any elevator bank serving the Subleased Premises on an as needed basis, and, by prior arrangement with the Manager (and at Subtenant’s sole cost), freight elevator service.
(d) Water. Cold and heated water, for normal lavatory and drinking purposes, from the public lavatory in the core of the floors on which the Subleased Premises are located, 24 hours per day, seven days a week.
(e) Janitorial. Janitorial service in accordance with the specifications attached hereto as Exhibit "G" and made a part hereof. Sublandlord shall not be required to cause Prime Landlord to provide more than Building
standard janitorial services for portions of the Subleased Premises used for storage, mail room, kitchen or other non-office purposes, nor shall Sublandlord be required to cause Prime Landlord to provide janitorial services to areas obstructed or locked
by Subtenant, or used as a lavatory, other than the lavatory rooms shown on the Subtenant’s Plans of the Subleased Premises as provided for in Exhibit "E" attached hereto and made a part hereof.
(f) Access. Access to the Subleased Premises and the Garage on a seven-day per week, 24-hour per day basis, subject to compliance with such reasonable security measures and reasonable rules and regulations as shall from time-to-time
be in effect for the Building and/or the Property.
8.2 Extraordinary Services
Subtenant understands that the Manager, acting for Sublandlord and/or Prime Landlord, may impose a reasonable direct charge and establish reasonable rules and regulations for any of the following: (a) the use of any electric current required by
Subtenant, at its request, for operation of common areas by Subtenant at any time other than during Normal Working Hours; (b) the use of any HVAC by Subtenant at any time other than during Normal Working hours; (c) additional or unusual janitorial
services requested by Subtenant or required because of any non-building standard improvements in the Subleased Premises, the carelessness of Subtenant, the nature of Subtenant’s business (including the operation of Subtenant’s business other
than during Normal Working Hours); (d) the removal of any refuse and rubbish from the Subleased Premises except for discarded material placed in wastepaper baskets and left for emptying as an incident to normal cleaning of the Subleased Premises; and (e)
any other services provided to Subtenant at any time other than during Normal Working Hours. Failure to make any such payment to Prime Landlord when due shall give Prime Landlord the right to refuse to provide further services to the Subleased Premises,
in addition to the right to litigate with Subtenant directly to recover such unpaid amounts.
8.3 Telephone
Subtenant shall make its own arrangements for telephone and/or communication services, and Sublandlord shall have no liability or obligation in connection therewith other than to cause Prime Landlord to provide reasonable access to the Building
telephone closets. Sublandlord shall retain the right to use and access the existing telephone riser closets and telephone risers on the floors of the Subleased Premises during the balance of the Term of the Prime Lease and Sublandlord and Subtenant
shall share such telephone riser closets during such period, subject to reasonable mutually acceptable access and security arrangements. Subtenant shall be released from any liability to Sublandlord for cutting any voice or data lines within the risers
or telephone closets or above the ceilings in the Subleased Premises that are not marked by Sublandlord as being active lines.
8.4 Interruption in Utility Service
Neither Sublandlord nor Prime Landlord shall be liable for damages or otherwise for failure, stoppage or interruption of any services or utilities or unavailability of access to the Property, nor shall the same be construed either as an eviction of
Subtenant, or result in an abatement of Rent when such failure is caused by acts of God, accidents, breakage, repairs, strikes, lockouts, other labor disputes, other Force Majeure Events, or by the making of repairs, alterations or improvements to the
Subleased Premises or the Building, or the limitation, curtailment, rationing or restriction in supply of fuel, steam, water, electricity, labor or other supplies or for any other condition beyond Sublandlord’s and Prime Landlord’s reasonable
control, including, without limitation, any governmental energy conservation program or legal requirement. If any governmental entity imposes mandatory or voluntary controls or guidelines on Sublandlord or Prime Landlord or the Property or any part
thereof, relating to the services provided by Sublandlord to Subtenant or the reduction of emissions, Prime Landlord may make such alterations to the Building or any other part of the Property related thereto and take such other steps as are necessary to
comply with such controls and guidelines, the cost of such compliance and alterations shall be included in Operating Expenses and neither Sublandlord nor Prime Landlord shall be liable therefor, for damages or otherwise, nor shall the same be construed as
an eviction of Subtenant or result in an abatement of Rent. Nothing contained in this Article shall be construed to limit Subtenant’s rights under Article 6.
9. Alterations
9.1 Alterations Requiring Consent
Except for any Subtenant Improvements specifically permitted by this Sublease, Subtenant shall make no alteration, repair, addition or improvement in, to or about the Subleased Premises (collectively, "Alterations"), without the prior
written consent of Sublandlord or Prime Landlord, which consent shall not be unreasonably withheld, delayed, or conditioned. The prior written consent of Sublandlord or Prime Landlord shall be granted if (i) all such Alterations are consistent with the
character of a Class A high-rise office building and are consistent with the permitted use set forth in Article 4 hereof, and (ii) such Alterations would be permitted or consented to by Prime Landlord under the Prime Lease. However, without the prior
consent of Sublandlord or Prime Landlord, Subtenant shall have the right to install (i) Alterations that are purely decorative (i.e., paint, carpet, non-built-in shelving, filing systems, work stations, and similar trade fixtures and furniture) and (ii)
non-structural Alterations which do not cost in excess of $100,000 in the aggregate and which do not adversely affect the function or integrity of Building Systems in the Building or Subleased Premises, provided, in each instance Subtenant shall give
prior notice of its intention to make such Alterations to Prime Landlord and Sublandlord, such notice to include the scope and proposed schedule of work. Subtenant shall not be required to remove the foregoing permitted Alterations upon the expiration of
Subtenant’s right to possession of the Subleased Premises.
9.2 Removal of Alterations
All Alterations and all Subtenant Improvements, which are attached to, or built into, the Subleased Premises, shall become the property of Prime Landlord when Subtenant’s right to possession of the Subleased Premises expires. Subject to paragraph
9.1 above, Subtenant may be required to remove specific Alterations or Subtenant Improvements, if, but only if (i) Sublandlord or Prime Landlord has specified in writing at the time of approval of the relevant plans and/or specifications that such
Alterations or Subtenant Improvements must be removed at the expiration of Subtenant’s right to possession of the Subleased Premises or (ii) as to any Alterations for which no plans or specifications were submitted to Sublandlord or Prime Landlord
for approval, the items in question are not generally found in a first-class office building. Subtenant will repair of any damage to the Subleased Premises, the Building and any other part of the Property caused by such removal, all at Subtenant’s
sole expense and to the reasonable satisfaction of Prime Landlord.
9.3 Trade Fixtures
Without the prior consent of Sublandlord or Prime Landlord, Subtenant shall have the right to install trade fixtures, machinery and equipment required by Subtenant or used by it in its business, provided that same do not exceed applicable safe floor
loads or otherwise impair the structural strength of the Building and further provided that such trade fixtures, machinery and equipment shall be limited to items customary to the permitted use of the Subleased Premises as set forth in Article 4 hereof.
Except to the extent (if any) paid for by Sublandlord, in cash or by way of any credit or allowance provided hereunder, such trade fixtures, machinery and equipment shall be and remain Subtenant’s personal property and shall be removed by Subtenant
upon expiration of its right to possession of the Subleased Premises. Subtenant shall repair and restore any damage to the Subleased Premises and Building caused by such installation or removal.
10. Maintenance and Repairs
10.1 Subtenant’s Obligations
Subtenant shall, at Subtenant’s sole expense, keep the Subleased Premises and every part thereof clean and in good condition and repair, except for ordinary wear and tear, damage caused by Casualty and Sublandlord’s and/or Prime Landlord’
s obligations specifically set forth in this Sublease.
10.2 Sublandlord’s Obligations
Subject to Article 12, Sublandlord shall cause Prime Landlord to repair and maintain with reasonable diligence after notice thereof from Subtenant, defects in, and damage to, the Building structure and the Building Systems installed by Prime Landlord
and Sublandlord and serving or located on the Subleased Premises. If such maintenance and repair is required by the act, neglect, misuse, fault or omission of any duty of Subtenant, its agents, employees, contractors, licensees or invitees, Subtenant
shall pay the out of pocket cost of such maintenance and repairs.
11. Insurance; Waiver of Subrogation
11.1 Types of Insurance
Subtenant shall at all times during the Term (and prior to the Term with respect to any activity of Subtenant in the Building) and at its own cost and expense procure and continue in force insurance as follows:
(a) Liability Insurance. Workers’ compensation insurance, employer’s liability insurance and commercial general liability insurance and, if necessary, commercial umbrella or excess liability insurance adequate to protect
Subtenant, Sublandlord, and Prime Landlord against liability for injury to or death of any person or damage to property in connection with the use, operation or condition of the Subleased Premises. The limits of liability under the workers’
compensation policy shall be at least equal to the statutory requirements therefor, and the limits of liability under the employer’s liability policy shall be at least $2,000,000.00. The commercial general liability policy shall be in an amount not
less than $3,000,000.00 per occurrence and $5,000,000.00 in the aggregate. Not more frequently than once each three years, if, in the opinion of Prime Landlord’s mortgagee or of the independent insurance broker retained by Prime Landlord, the amount
of employer’s liability or commercial general liability coverage in place at that time is not adequate, Subtenant shall increase the insurance coverage as reasonably required by Sublandlord or Prime Landlord, provided, however, such increases shall
not exceed commercially reasonable insurance coverages carried by tenants leasing similar Center City Philadelphia class A high-rise office space.
(b) Property Insurance. Insurance covering all leasehold improvements (including, but not limited to, all Subtenant Improvements and Alterations) trade fixtures, merchandise and other personal property from time to time in, on or upon
the Subleased Premises, in an amount not less than 100% of their full replacement cost from time to time during the Term, providing protection against any peril included within the classification "All Risks Coverage," together with insurance
against sprinkler water damage, vandalism and malicious mischief. The proceeds of such insurance shall be used for the repair or replacement of the property so insured. Upon termination of this Sublease due to any Casualty, the proceeds of such
insurance shall be paid to Prime Landlord, Sublandlord and Subtenant, as their interests appear in the insured property. The full replacement value of the items to be insured under this paragraph shall be determined by Subtenant and acknowledged by the
company issuing the insurance policy by the issuance of an agreed amount endorsement at the time the policy is initially obtained, and shall be increased from time to time if and to the extent necessary to maintain full replacement value coverage.
(c) Business Interruption Insurance. Loss of income or business interruption insurance in such amounts as will reimburse Subtenant for direct and indirect loss of earnings attributable to all perils commonly insured against by prudent
tenants or attributable to prevention of access to the Subleased Premises or to the Building as a result of such perils.
11.2 Policy Requirements
(a) All insurance required to be carried by Subtenant hereunder shall be issued by responsible insurance companies, qualified to do business in the Commonwealth of Pennsylvania and reasonably acceptable to Sublandlord and Prime Landlord. Insurance
companies rated A VII or better by Best’s Insurance Reports shall be deemed acceptable.
(b) Each policy shall be written on an "occurrence" basis and shall have a deductible or deductibles, if any, which do not exceed the lesser of (i) $250,000.00 or (ii) the deductible amount(s) generally maintained by similarly situated
tenants in class A, high-rise office buildings in the Central Business District of Center City Philadelphia. Each policy, except workers’ compensation, shall name Sublandlord, Prime Landlord, Manager, and Prime Landlord’s lender and their
respective members, managers, partners, officers, directors, agents and employees as additional insureds, as their interests may appear. Certificates and additional insured endorsements evidencing the existence and amounts of such insurance shall be
delivered to Sublandlord and Prime Landlord by Subtenant at least thirty (30) days prior to Subtenant’s occupancy of any portion of the Subleased Premises, and in any event, prior to any activity of Subtenant in the Building. In addition, Subtenant,
upon reasonable written request from Prime Landlord or Sublandlord, will make reasonable efforts to furnish copies of original policies to Prime Landlord or Sublandlord, as the use may be. No such policy shall be cancelable except after thirty (30)
days’ written notice to Sublandlord and Prime Landlord. Subtenant shall provide Sublandlord with originals of the endorsements to Subtenant’s commercial general liability insurance and all risk property insurance policies which include the
following exact wording:
It is agreed that New York Central Lines LLC, Philadelphia Plaza-Phase II, Thomas Properties Group, LLC, Thomas Development Partners L.P., Bank of America, N.T. and S.A., Trustee, and their respective members, managers, partners, officers, directors,
affiliates, agents and employees are additional insureds. The coverage under this policy is primary insurance with respect to liability arising out of the ownership, maintenance or use of the premises leased to Subtenant.
Such endorsements shall be separate from certificates of insurance. It is not acceptable to have the above-referenced language typed or written on the certificate of insurance in lieu of providing Sublandlord and Prime Landlord with the required
endorsements. Each certificate of insurance and endorsements required hereunder shall have an original signature. Subtenant shall, prior to the expiration of any such policy, furnish Sublandlord with renewal certificates and endorsements thereof.
Should Subtenant at any time neglect or refuse to provide the insurance required by this Sublease, or should such insurance be canceled, Sublandlord shall have the right, but not the duty, to procure the same and Subtenant shall pay the cost thereof as
rent promptly upon Sublandlord’s demand. Subtenant will deliver certificates with respect to its policies and endorsements to Sublandlord and/or Prime Landlord within twenty (20) days after Sublandlord’s written request therefor.
(c) With respect to the Subleased Premises, the policies of insurance required to be carried by Subtenant pursuant to this Sublease shall be primary and non-contributing with, and not in excess of any other insurance available to Sublandlord. The
cost of defending any claims made against any of the policies required to be carried by Subtenant shall not be included in any of the limits of liability for such policies. Subtenant shall immediately report to Sublandlord, and promptly thereafter
confirm in writing, the occurrence of any injury, loss or damage incurred by Subtenant, or Subtenant’s receipt of notice or knowledge of any claim by a third party or any occurrence that might give rise to such claims. It shall be the responsibility
of Subtenant not to violate nor knowingly permit to be violated any condition of the policies required by this Sublease.
(d) If any of the liability insurance policies required to be maintained by Subtenant pursuant to this Article contains aggregate limits which apply to operations of Subtenant other than those operations which are the subject of this Sublease, and
such limits are diminished by more than $200,000.00 after any one or more incidents, occurrences, claims, settlements, or judgments against such insurance, Subtenant shall take immediate steps to restore aggregate limits or shall maintain other insurance
protection for such aggregate limits. Any policy of property insurance required hereunder may be in "blanket coverage" form, provided any such "blanket coverage" policy (i) specifically provides that the amount of insurance coverage
required hereunder shall in no way be prejudiced by other losses covered by the policy or (ii) is in an amount not less than the sum of 100% of the actual replacement costs of all of the properties covered under such "blanket coverage" insurance
policy. Neither the issuance of any such property insurance policy nor the minimum limits specified in this Article shall be deemed to limit or restrict in any way Subtenant’s liability arising under or out of this Sublease.
11.3 Prime Landlord’s Insurance
During the term of this Sublease and to the extent Prime Landlord is required to do so in the Prime Lease, Subtenant shall cause Prime Landlord:
(a) to maintain in force insurance of the type commonly referred to as an "all risk of physical loss" policy, equivalent to the Insurance Service Office "causes of loss — special form," in an amount equal to the full
replacement cost of the Building (with a deductible not exceeding $100,000 for any loss); commercial general liability insurance in an amount not less than $5,000,000 per occurrence and $10,000,000 in the aggregate (with a deductible not exceeding
$100,000) insuring the Building and the Property against all risks and hazards as are customarily insured against, in Prime Landlord’s reasonable judgment, by others similarly situated and operating like properties; and rental loss insurance in an
amount not less than twelve (12) months’ rent for the Building. Without limitation of the foregoing, Prime Landlord, by consenting to this Sublease, agrees to maintain in force such insurance as may be required by the holder of the Mortgage. The
premiums and deductible amounts on the insurance policies referred to in this paragraph will be part of Operating Expenses.
(b) to carry workers’ compensation and employers’ liability insurance on those employees who may at any time enter the Subleased Premises.
(c) to carry all such insurance by responsible insurance companies, qualified to do business in the Commonwealth of Pennsylvania. Insurance companies complying with the requirements of any holder of a mortgage on the Building shall be deemed
acceptable.
(d) to provide Subtenant with appropriate evidence of the insurance required under this Section 11.3 once a year, upon the written request from Subtenant.
11.4 Waiver of Subrogation
Sublandlord shall, during the Term hereof, require the Prime Landlord to, and Subtenant shall, obtain waivers of subrogation from their respective insurance carriers in accordance with Section 17.5 of the Prime Lease.
12. Fire or Casualty
12.1 Damage and Restoration
If the Subleased Premises or any Building Systems or common areas of the Building serving or providing access to the Subleased Premises shall be damaged by fire or other casualty (such fire or casualty herein referred to as the "Casualty
"), and the Prime Lease shall remain in effect, Sublandlord shall enforce its rights under the Prime Lease to cause the Prime Landlord to repair and restore the Casualty, to the extent the Prime Lease permits Sublandlord to do so. If Prime Landlord
is obligated to, or elects to repair and restore the damage from and under the foregoing provisions, then such restoration shall be to substantially the condition that existed prior to the Casualty, except for modifications required by zoning and building
codes and other laws, or by a lender(s) holding a Mortgage(s), and any other modifications to the common areas deemed desirable by Prime Landlord (provided access to the Subleased Premises is not materially impaired). Neither Sublandlord nor Prime
Landlord shall be required to repair or replace any of Subtenant’s furniture, furnishing, fixtures or equipment, or any Alterations or Subtenant Improvements not originally installed or constructed by Sublandlord or Prime Landlord at its expense.
Sublandlord shall not be liable for any inconvenience or annoyance to Subtenant or its visitors, or injury to Subtenant’s business resulting in any way from such damage or the repair thereof, except that Sublandlord shall allow Subtenant a
proportionate abatement of Rent during the time and to the extent the Subleased Premises are unfit for occupancy by Subtenant as a result thereof; provided, if the Subleased Premises or any other portion of the Building is damaged by a Casualty caused in
whole or in part by Subtenant or any of Subtenant’s agents, contractors, employees, or visitors, Rent shall not be so abated.
12.2 Termination
Notwithstanding the foregoing, if the Building is damaged by a Casualty that prevents or materially impairs access to or use of the Subleased Premises (or if a material portion of the Subleased Premises are damaged by a Casualty) to such an extent that
restoration thereof cannot reasonably be completed within eighteen (18) months after the Casualty shall have occurred, without the payment of overtime or other premiums, as reasonably determined by Prime Landlord, then either Subtenant or Sublandlord
(provided that Sublandlord may act only with the written consent of Prime Landlord) may elect to terminate this Sublease by written notice to the other and to Prime Landlord given within forty-five (45) days after the occurrence of the Casualty, and Rent
shall be apportioned accordingly. If the parties fail to give such a notice of termination within said 45 day period, then both parties shall be deemed to have waived the right to terminate this Sublease as a result of such Casualty, and this Sublease
shall remain in full force and effect, subject to the abatement of Rent under Section 12.1 of this Sublease.
Notwithstanding anything herein to the contrary, if any such damage rendering all or a substantial part of the Subleased Premises or the Building untenantable occurs during the last eighteen (18) months of the Term (as defined in this Sublease or, if
Subtenant has exercised its Option under the Consent, as described under the Consent), and it cannot be repaired within the earlier of thirty (30) days after the Casualty or the date which is sixty (60) days prior to the end of the Term, then either party
shall have the option to terminate this Sublease by written notice to the other (and Prime Landlord) within thirty (30) days after the damage has occurred, and if such option is exercised, this Sublease shall terminate as of the date of such damage.
13. Eminent Domain
13.1 Taking
In case the Building or the Subleased Premises, or such part thereof as shall substantially interfere with Subtenant’s use and occupancy thereof, shall be taken by any lawful power or authority by exercise of the right of eminent domain, or sold
to prevent such taking, either Subtenant or Sublandlord may terminate this Sublease effective as of the date possession is required to be surrendered to said authority, by notice given within twenty (20) business days after receipt of notice of the
taking. Except as provided herein, Subtenant shall not assert any claim against any taking party because of such taking. Nothing contained in this Article shall be deemed to give Sublandlord any interest in, or prevent Subtenant from seeking any award
against the taking authority for, the taking of the Subtenant Improvements and other personal property and fixtures belonging to Subtenant or for relocation or business interruption expenses which Subtenant may be entitled to recover from the taking
authority.
13.2 Temporary Taking
If all or any portion of the Subleased Premises are temporarily condemned or otherwise taken for public or quasi-public use, this Sublease shall remain in full force and effect and Subtenant shall continue to perform all of the terms, conditions and
covenants of this Sublease, including, without limitation, the payment of Rent and all other amounts required hereunder. Subtenant shall be entitled to receive the entire award made in connection with any temporary condemnation or other taking
attributable to any period within the Term. Sublandlord (or Prime Landlord, as the case may be) shall be entitled to the entire award for any such temporary condemnation or other taking which relates to a period after the expiration of the Term or which
is allocable to the cost of restoration of the Subleased Premises. If any such temporary condemnation or other taking terminates prior to the expiration of the Term, Subtenant shall restore the Subleased Premises as nearly as possible to the condition
prior to the condemnation or other taking at Subtenant’s sole cost and expense; provided Subtenant shall receive the portion of the award attributable to such restoration.
14. Assignment and Subletting
14.1 Limitation
(a) Subtenant shall not directly or indirectly, voluntarily or involuntarily (i) assign, mortgage or otherwise encumber (collectively, "Assignment") all or any portion of its leasehold estate or (ii) permit the Subleased Premises to
be occupied by anyone other than Subtenant or Subtenant’s employees or sublet the Subleased Premises or any portion thereof without obtaining the prior written consent of Sublandlord and Prime Landlord, which consents shall be granted or denied as
determined within the sole discretion of the Sublandlord and Prime Landlord, subject, however, to subparagraphs (b) and (c) below. Any attempted Assignment or Sub-Sublease (collectively, a "Transfer") without such consent shall be null and void and of no effect.
(b) Notwithstanding the foregoing paragraph 14.1(a), Subtenant shall have the right, after notice thereof to Sublandlord and Prime Landlord, to effect a Transfer without the approval of Sublandlord or Prime Landlord, and without sharing any
resulting Profit with Sublandlord, to (i) any entity resulting from a merger or consolidation with Subtenant; (ii) any entity succeeding to the business and assets of Subtenant by merger, consolidation, or otherwise; or (iii) any entity which is a
subsidiary or Affiliate of Subtenant, provided in each case the net worth of the transferee, calculated in accordance with generally accepted accounting principles, is at least $100,000,000. For purposes of this Sublease, an "Affiliate" shall mean an entity controlled by Subtenant, or which controls Subtenant, or which is under common control with Subtenant. For purposes of this definition, the word "control," as used above means with respect to a
corporation or other separate legal entity, the right to exercise, directly or indirectly, more than fifty (50%) percent of the voting rights attributable to the shares of the controlled corporation or other interests in the other entity, as the case may
be, and directly or indirectly, of the power to direct or cause the direction of the management or policies of the controlled entity.
(c) In addition to the Transfers permitted by subparagraph (b) above, Subtenant shall have the right, after written notice to Sublandlord and Prime Landlord, to sublet up to 30,000 square feet of Rentable Area to an unrelated entity or entities,
without any approval from Sublandlord or Prime Landlord, and without sharing any resulting Profit with Sublandlord, provided (i) any resulting sub-sublease shall be subject to all the terms and conditions of this Sublease; and (ii) Subtenant shall not
have sublet any space to an unaffiliated entity without its landlord’s consent pursuant to its lease in the building known as One Commerce Square ("One Commerce") adjacent to the Building which, when taken in combination with the sublet space within the Subleased Premises exceeds, in the aggregate, 30,000 square feet of Rentable Area. No such sub-subtenant shall be permitted to further
sublet, assign, or otherwise permit any other party to occupy its space. Notwithstanding the foregoing, Subtenant will not enter into a sublease pursuant to this paragraph with any party as to whom Sublandlord or Prime Landlord may have a right to object
pursuant to Article 14.3(a)(i).
(d) No Transfer shall relieve Subtenant of its obligation to pay the Rent and to perform all of the other obligations to be performed by Subtenant hereunder. The acceptance of Rent by Sublandlord from any other person shall not be deemed to be a
waiver by Sublandlord of any provision of this Sublease or to a consent to any Transfer. Consent to one Transfer shall not be deemed to constitute consent to any subsequent Transfer.
14.2 Notice of Intent to Assign or Sublet
Except as otherwise provided in subparagraphs 14.l(b) and (c) above, if Subtenant desires at any time to Transfer the Subleased Premises or any portion thereof, it shall first give Sublandlord and Prime Landlord notice (the "Transfer Notice
") specifying (a) the size and location of the space Subtenant proposes to transfer (the "Transfer Space"); (b) the terms and provisions of the proposed Transfer; (c) the date on which Subtenant proposes that the Transfer be effective, which shall not be less than forty-five (45) days after the Transfer Notice; (d) the name of the
proposed assignee, subtenant, transferee or occupant ("Transferee"); (e) the nature of the proposed Transferee’s business to be carried on in the Transfer Space; and (f) such financial information as Sublandlord may reasonably request concerning the proposed Transferee.
14.3 Right of Recapture; Sublandlord’s and Prime Landlord’s Consent
Except for Transfers pursuant to subparagraphs 14.1(b) and (c) above, Sublandlord and Prime Landlord shall have the right of recapture as set forth in this paragraph 14.3. At any time within fifteen (15) days after Sublandlord’s receipt of the
Transfer Notice information set forth in Section 14.2 of this Sublease, Sublandlord may by written notice to Subtenant and Prime Landlord, elect to recapture the Transfer Space (the "Sublandlord Period"). In the event Sublandlord does not elect to recapture the Transfer Space within the Sublandlord Period, at any time within fifteen (15) days after the expiration of the Sublandlord Period, Prime Landlord may by written
notice to Subtenant elect to recapture the Transfer Space (collectively, the "Recapture"). Upon such Recapture, Sublandlord or Prime Landlord, as the case may be, may terminate this Sublease with respect thereto, unless the Transfer involves a sub-sublease for a term which expires at least one year prior to expiration
of the Term of this Sublease and, provided, that in no event shall such Recapture terminate or otherwise adversely impact Subtenant’s option to lease the Subleased Premises under the Consent. If Sublandlord and Prime Landlord do not elect to
Recapture the Transfer Space, or are not entitled to do so, Subtenant may transfer the Transfer Space to the Transferee on the terms set forth in the Transfer Notice subject to the following conditions:
(a) Sublandlord and Prime Landlord shall have consented to such Transfer, which consent shall not be unreasonably withheld, conditioned or delayed beyond thirty (30) days following Sublandlord’s and Prime Landlord’s receipt of the Transfer
Notice, provided, however, that Sublandlord’s or Prime Landlord’s refusal to consent to any Transfer shall be deemed reasonable if:
(i) The Transferee is of a character or reputation or engaged in a business which is not consistent with the quality of the Building or the Property;
(ii) The Transferee intends to use the Transfer Space for purposes which are not permitted under this Lease;
(iii) The Transferee is a current tenant or subtenant of the Property or has been involved in bona fide negotiations with Sublandlord or Prime Landlord, as evidenced by a specific written proposal to such Transferee, for space in the Property within
the preceding six (6) months;
(iv) The Transfer Space is not suitable for normal renting purposes in conformity with all applicable building and safety codes;
(v) The Transferee is a governmental body (or subdivision or agency thereof);
(vi) The Transferee is, in the reasonable judgment of Sublandlord, insolvent or does not have the financial capacity to perform the obligations to be assumed for the term of the Transfer.
(b) If the Transfer is not completed within ninety (90) days of Sublandlord’s and Prime Landlord’s consent thereto, Subtenant shall once again comply with all of the provisions of this Article 14, including, without limitation, the
obligation to give Sublandlord and Prime Landlord the Transfer Notice and Sublandlord and Prime Landlord shall again have the right of recapturing the Transfer Space and terminating the Lease with respect thereto.
(c) Any Sub-sublease shall provide that it is subject and subordinate to this Sublease and to all underlying Mortgages; that Sublandlord may enforce the provisions of the Sublease, including collection of Rent; that the cost of any modification to
the Subleased Premises, Building and/or Project arising from or as a result of the Sub-sublease shall be the sole responsibility of Subtenant; that in the event of termination of this Sublease for any reason, including without limitation a voluntary
surrender by Subtenant, or in the event of any reentry or repossession of the Subleased Premises by Sublandlord, Sublandlord may, at its option, either (i) terminate the Sub-sublease or (ii) take over all of the right, title, and interest of Subtenant, as
Sublandlord, under such Sub-Sublease, in which case the Transferee shall attorn to Sublandlord, but that nevertheless Sublandlord shall not (1) be liable for any previous act or omission of Subtenant under such Sub-Sublease, (2) be subject to any defense
or offset previously accrued in favor of the Transferee against Subtenant, or (3) be bound by any previous modification of any Sub-Sublease made without Sublandlord’s written consent, or by any previous prepayment by the Transferee of more than one
month’s Rent. Subtenant waives any right it may have at law or in equity to terminate this Sublease as a result of Sublandlord’s failure to consent to a Transfer in a manner consistent with this Article 14.
(d) Each Transferee by assignment shall assume all obligations of Subtenant under this Sublease and shall be and remain liable jointly and severally with Subtenant for the payment of the Rent, and for the performance of all of the terms, covenants,
conditions and agreements herein contained on Subtenant’s part to be performed for the term of this Sublease; provided, however, that the Transferee shall be liable to Sublandlord for Rent only in the amount set forth in the Transfer. No Assignment
shall be binding on Sublandlord unless the Transferee or Subtenant shall deliver to Sublandlord a counterpart of an assignment and an instrument in recordable form which contains a covenant of assumption by the Transferee satisfactory in substance and
form to Sublandlord consistent with the requirements of this paragraph 14.3(d), but the failure or refusal of the Transferee to execute such instrument of assumption shall not release or discharge the Transferee from its liability as set forth above.
(e) If there are any Profits from any Transfer, except for Transfers under subparagraphs 14.1(b) or (c) of this Sublease, Subtenant shall pay fifty percent (50%) of such Profits to Sublandlord as Rent. Sublandlord’s share of Profits shall be
paid to Sublandlord within three (3) days after receipt thereof by Subtenant. The payment of Profits to Sublandlord shall be made on a monthly basis as Rent with respect to each Transfer separately subject to an annual reconciliation on each anniversary
date of the Transfer. If the payments to Sublandlord under this Subparagraph during the twelve (12) months preceding each annual reconciliation exceed the amount of Profits determined on an annual basis, then Sublandlord shall promptly refund to
Subtenant the amount of such overpayment or credit the overpayment against Subtenant’s future obligations under this Subparagraph, at Subtenant’s option. If Subtenant has underpaid its obligations hereunder during the preceding twelve (12)
months, Subtenant shall immediately pay to Sublandlord the amount owing after the annual reconciliation.
For purposes of this Article 14, "Profits" are defined as all cash or cash equivalent amounts and sums which Subtenant (including any Affiliate or Successor of Subtenant or other entity related to Subtenant) receives on a monthly basis
from any Transferee, directly or indirectly, attributable to the Subleased Premises or any portion hereof, less the sum of (1) the amount amortized over the term of the Transfer for (i) any additional Subtenant improvement costs paid to Subtenant’s
Transferee by Subtenant; (ii) reasonable leasing commissions paid by Subtenant in connection with the Transfer; (iii) other economic concessions (planning allowance, lease takeover payments, moving expenses, etc.) paid by Subtenant to or on behalf of the
Transferee in connection with the Transfer; (iv) reasonable costs incurred by Subtenant in advertising the Transfer Space; and (v) Subtenant’s reasonable attorneys’ fees paid by Subtenant in connection with the Transfer (such amounts to be
amortized over the term of the Transfer), and (2) the Rent and additional rent pursuant to Article 5 of this Sublease paid during each such annual period by Subtenant attributable pro rata based on Rentable Area to the Transfer space. Any lump sum
payment received by Subtenant from a Transferee shall be treated like any other amount so received by Subtenant for the applicable annual period and shall be utilized in computing Profits in accordance with the foregoing. All Profits and the components
thereof shall be subject to audit by Sublandlord or its representatives at reasonable times. Subtenant shall deliver to Sublandlord, upon request, any information reasonably required by Sublandlord to calculate and/or substantiate the amount of Profits
hereunder.
14.4 Costs
Subtenant agrees to reimburse Sublandlord and Prime Landlord for their reasonable out-of-pocket costs and attorneys’ fees incurred in connection with the processing and documentation of any requested Transfer whether or not Sublandlord or
Prime Landlord consents to the Transfer or the same is finally consummated.
14.5 Rights Personal to Subtenant
Rights of Transfer set forth in this Article 14 are personal to Subtenant and may not be conveyed or assigned.
14.6 No Event of Default
Subtenants’ rights of Transfer are specifically contingent upon there being no Event of Default at the time of any proposed transfer.
15. Sublandlord’s Reserved Rights
15.1 Sublandlord’s Right to Transfer
Sublandlord may transfer its interest in the Subleased Premises without the consent of Subtenant provided any such transferee assumes all of Sublandlord’s obligations hereunder from and after the date hereof, and such transfer or subsequent
transfer shall not be deemed a violation on Sublandlord’s part of any term or condition of this Sublease. Upon such transfer, Sublandlord shall automatically be relieved of any and all obligations on its part accruing from and after the date of said
transfer.
15.2 Right of Entry
Sublandlord and Prime Landlord and their respective agents and representatives shall have the right, at all reasonable times, but in such manner as to cause as little disturbance to Subtenant as reasonably practicable, to enter the Subleased
Premises for the following purposes: (a) inspecting the physical condition of the Subleased Premises; (b) performing all obligations of Sublandlord under this Sublease or Applicable Laws; (c) showing the Subleased Premises to prospective purchasers,
mortgagees and (during the last twelve months of the Term) prospective tenants; (d) maintaining, replacing, extending or otherwise modifying the Building Systems; and (e) access to telephone closets, electrical panels, and similar installations which may
serve areas of the Building other than (or in addition to) the Subleased Premises. Except for (i) emergencies and (ii) entry to furnish janitorial or other services, Sublandlord (or Prime Landlord, as the case may be) will give Subtenant reasonable
notice (which may be oral) prior to any entry, and Subtenant shall have the right to have one of its employees accompany the persons entering the Subleased Premises. No such entry shall be construed under any circumstances as a forcible or unlawful entry
into the Subleased Premises, or an eviction of Subtenant. Subtenant hereby waives any claim against Sublandlord and Prime Landlord and their respective agents or representatives for damages for any injury or inconvenience to or interference with,
Subtenant’s business or quiet enjoyment of the Subleased Premises.
15.3 Building and Common Areas
Without limitation of the preceding paragraph, and provided they do not unreasonably interfere with Subtenant’s use, Sublandlord and Prime Landlord may: (a) install, repair, replace or relocate pipes, ducts, conduits, wires and appurtenant meters
and equipment for service to other parts of the Building above the ceiling surfaces, below the floor surfaces, within the walls and in the central core areas of the Subleased Premises or the rest of the Building (b) repair, renovate, alter, expand or
improve the Building; (c) make changes to the common areas, including, without limitation, changes in the location, size, shape and number of street entrances, driveways, ramps, entrances, exits, parking spaces, parking areas, loading and unloading areas,
halls, passages, stairways and other means of ingress and egress, direction of traffic, landscaped areas and walkways; (d) close temporarily any of the common areas for maintenance purposes as long as reasonable access to the Subleased Premises remains
available; (e) use the common areas while engaged in making additional improvements, repairs or alterations to the Building, or any portion thereof; and (f) do and perform such other acts and make such other changes in, to or with respect to the common
areas and Building and other portions of the Property as Sublandlord or Prime Landlord may deem appropriate. At Subtenant’s request, Sublandlord will cause Prime Landlord to perform the foregoing work (to the extent it adversely affects
Subtenant’s use of the Subleased Premises) after Normal Working Hours if (a) labor is available at such times and (b) Subtenant pays any extra costs involved, which will be invoiced to Subtenant pursuant to Article 5.1(d).
16. Indemnification and Waiver
16.1 Indemnity by Subtenant
Subtenant shall indemnify, protect, defend and hold harmless, Sublandlord, Prime Landlord and Manager and their respective officers, directors, members, shareholders, partners, agents, attorneys and employees (collectively, "Sublandlord
Indemnified Parties"), from and against any and all claims, suits, demands, liability, damages and expenses, including attorneys’ fees and costs (collectively, "Indemnified Claims"), arising from or in connection with Subtenant’s use or
alteration of the Subleased Premises or the conduct of its business or from any activity performed or permitted by Subtenant in or about the Subleased Premises, the Building or any part of the Property, or arising from any breach or default in the
performance of any obligation on Subtenant’s part to be performed under the terms of this Sublease, or arising from Subtenant’s use of the Building Systems in excess of their capacity or arising from any other act, neglect, fault or omission of
Subtenant or any of its officers, agents, directors, contractors, employees, subtenants, assignees, licensees or invitees. If any action or proceeding is brought against any of the Sublandlord Indemnified Parties in connection with any Indemnified
Claims, Subtenant, upon notice from Sublandlord, shall defend the same at Subtenant’s expense with counsel approved by Sublandlord, which approval shall not be unreasonably withheld. Subtenant’s obligations under this paragraph 16.1 shall
survive the expiration or earlier termination of this Sublease. This indemnification by Subtenant shall extend to and be applicable, and the Sublandlord Indemnified Parties shall be Indemnified regardless of whether or not such Indemnified Claim is made
by or on behalf of an employee of Subtenant.
16.2 Waiver
As a material part of the consideration to the Sublandlord for entering into this Sublease, Subtenant hereby assumes all risk of and releases, discharges and holds harmless Sublandlord, Prime Landlord and Manager from and against any and all liability
to Subtenant for damage to property or injury to persons in, upon or about the Subleased Premises from any cause whatsoever except that which is caused by the negligence or willful misconduct of Sublandlord, Manager or Prime Landlord, respectively. In no
event shall Sublandlord, Manager or Prime Landlord be liable to Subtenant for any injury to any person in or about the Subleased Premises or damage to the Subleased Premises or for any loss, damage or injury to any property of Subtenant therein by any
malfunction of any utility or other equipment, installation or system, or by the rupture, leakage or overflow of any plumbing or other pipes, including without limitation, water, steam and refrigeration lines, sprinklers, tanks, drains, drinking fountains
or similar cause in, about or upon the Subleased Premises, the Building or any other portion of the Property unless such loss, damage or injury, is caused by the negligence or willful misconduct of Sublandlord, Manager or Prime Landlord, respectively.
16.3 Indemnity by Sublandlord
Sublandlord shall indemnify, protect, defend and hold harmless, Subtenant and its officers, directors, members, shareholders, partners, agents, attorneys and employees (collectively, "Subtenant Indemnified Parties"), from and against
any and all claims, suits, demands, liability, damages and expenses, including reasonable and actual attorneys’ fees and costs (collectively, "Subtenant Indemnified Claims"), arising from or in connection with Sublandlord’s conduct of its business or from any activity performed by Sublandlord or Sublandord’s agents in or about the Subleased Premises, the Building or any
part of the Property, or arising from any breach or default in the performance of any obligation on Sublandlord’s part to be performed under the terms of this Sublease or the Prime Lease. If any action or proceeding is brought against any of the
Subtenant Indemnified Parties in connection with any Subtenant Indemnified Claims, Sublandlord, upon notice from Subtenant, shall defend the same at Sublandlord’s reasonable and actual expense with counsel approved by Subtenant, which approval shall
not be unreasonably withheld. Subtenant’s obligations under this Article 16.3 shall survive the expiration or earlier termination of this Sublease. This indemnification by Sublandlord shall extend to and be applicable, and the Subtenant Indemnified
Parties shall be indemnified regardless of whether or not such Indemnified Claim is made by or on behalf of an employee of Sublandlord.
17. Surrender of Subleased Premises and Removal of Property
17.1 Surrender of Subleased Premises
Upon the expiration of the Term, or upon any earlier termination hereof, Subtenant shall quit and surrender possession of the Subleased Premises to Sublandlord or Prime Landlord, as the case may be, in as good order and condition as the Subleased
Premises are as of the Commencement Date or hereafter may be improved by Sublandlord or Subtenant, reasonable wear and tear, damage by Casualty and repairs which are Sublandlord’s obligation excepted, and shall, without expense to Sublandlord, remove
or cause to be removed from the Subleased Premises, all debris and rubbish, all furniture, equipment, business and trade fixtures, freestanding cabinet work, movable partitioning and other articles of personal property owned by Subtenant or installed or
placed by Subtenant at its expense in the Subleased Premises, and all similar articles of any other persons claiming under Subtenant, and Subtenant shall repair all damage to the Subleased Premises and the Property resulting from such removal. If
Subtenant, with the prior written approval of Sublandlord and Prime Landlord, elects not to remove the foregoing items, or some or any of them, at the expiration of the Term, all such items shall become the property of Prime Landlord without any payment
by Prime Landlord.
17.2 Disposal of Property
In the event of the expiration of this Sublease or other re-entry of the Subleased Premises by Sublandlord as provided in this Sublease, any property of Subtenant not removed by Subtenant upon the expiration of the Term of this Sublease, or within
forty-eight (48) hours after a termination by reason of Subtenant’s default or upon such other earlier termination of this Sublease, unless left with consent pursuant to the last sentence of Article 17.1, shall be considered abandoned and Sublandlord
may remove any or all of such property and dispose of the same in any manner or store the same in a public warehouse or elsewhere for the account of, and at the expense and risk of, Subtenant. If Subtenant shall fail to pay the costs of storing any such
property after it has been stored for a period of thirty (30) days or more, Sublandlord may sell any or all of such property at public or private sale, in such manner and at such places as Sublandlord, in its sole discretion, may deem proper, without
notice to or demand upon Subtenant. In the event of such sale, Sublandlord shall apply the proceeds thereof first, to the cost and expense of sale, including attorneys’ fees; second, to the payment of the cost of removal and storage; third, to the
payment of any other sums which may then or thereafter be due to Sublandlord from Subtenant under any of the terms of this Sublease; and fourth, the balance, if any, to Subtenant.
18. Holding Over
In the event Subtenant holds over after the expiration of the Term, with the express or implied consent of Sublandlord and Prime Landlord, such tenancy shall be a tenancy at will only and not a renewal or an extension for any further term, and such
tenancy at will shall be subject to each and every term, covenant and agreement contained herein; provided, however, that Subtenant shall pay as monthly rent during any holding over period, an amount equal to 125% of the monthly Rent payable immediately
prior to expiration of the Term. In the event Subtenant holds over more than ninety (90) days Subtenant shall thereafter pay as monthly Rent an amount equal to the greater of (a) 150% of the monthly Rent payable immediately prior to expiration of the
Term or (b) the Fair Market Rent for the Subleased Premises. Nothing in this Article shall be construed as a consent by Sublandlord to any holding over by Subtenant and Sublandlord expressly reserves the right to require Subtenant to surrender possession
of the Subleased Premises upon the expiration of the Term or upon the earlier termination hereof and to assert any remedy in law or equity to evict Subtenant and/or collect damages in connection with such holding over.
19. Defaults and Remedies
19.1 Defaults by Subtenant
The occurrence of any of the following shall constitute a material default and breach of this Sublease by Subtenant (each, an "Event of Default"):
(a) If Subtenant fails to pay the Rent or make any other payment required to be made by Subtenant under this Sublease as and when due;
(b) If Subtenant (i) abandons the Subleased Premises or (ii) enters into any Assignment or Sub-Sublease transaction in violation of the terms of this Sublease;
(c) If Subtenant fails to observe or perform the provisions of Articles 4 (Use of Subleased Premises) and/or 9 (Alterations) and/or 11 (Insurance) and such failure continues for forty-eight (48) hours after notice thereof from Sublandlord to Subtenant
;
(d) If Subtenant fails to provide estoppel certificates, or other certificates as herein provided, and such failure continues for three (3) business days after notice to Subtenant following expiration of the ten (10) day period provided herein for
the delivery of such certificates;
(e) If Subtenant fails to observe or perform any other provision of this Sublease, including the exhibits hereto, to be observed or performed by Subtenant, and such failure continues for fifteen (15) days after notice thereof from Sublandlord to
Subtenant; provided, however, that if the nature of such failure is such that it cannot reasonably be cured within such fifteen (15) day period, Subtenant shall not be deemed to be in default if Subtenant shall within such period commence such cure and
thereafter diligently prosecute the same to completion;
(f) If, upon Subtenant’s receipt of notice thereof, any action is taken by or against Subtenant pursuant to any statute pertaining to bankruptcy or insolvency or the reorganization of Subtenant (unless, in the case of a petition filed against
Subtenant, the same is dismissed within ninety (90) days); Subtenant makes any general assignment for the benefit of creditors; a trustee or receiver is appointed to take possession of all or any portion of Subtenant’s assets located at the Subleased
Premises or of Subtenant’s interest in this Sublease, and possession is not restored to Subtenant within ninety (90) days; or all or any portion of Subtenant’s assets located at the Subleased Premises or of Subtenant’s interest in this
Sublease is attached, executed upon, or otherwise judicially seized and such seizure is not discharged within ninety (90) days;
(g) If Subtenant fails to vacate and surrender the Subleased Premises as required by this Sublease upon the expiration of the Term (subject to Subtenant’s right to continue in occupancy pursuant to the Consent) or sooner termination of this
Sublease; and/or
(h) If Subtenant submits to Sublandlord any materially false information on any document required to be given by Subtenant to Sublandlord.
19.2 Sublandlord’s Remedies
If there shall occur an Event of Default, Sublandlord shall have and may exercise all remedies available to Sublandlord at law or in equity or under any statute or ordinance. Without limitation of the foregoing, Sublandlord may at its option take all
or any of the following actions:
(a) Acceleration of Rent. Declare due and payable and sue for and recover, all unpaid Rent for the unexpired period of the Term as if by the terms of this Sublease the same were payable in advance, or sue for Rent monthly as it accrues;
(b) Termination. Terminate this Sublease by giving written notice thereof and, upon the giving of such notice, this Sublease and the estate hereby granted shall expire and terminate with the same force and effect as though the date of
such notice were the date fixed for the expiration of the Term, and all rights of Subtenant hereunder shall expire and terminate, but Subtenant shall remain liable as hereinafter provided;
(c) Recovery of Possession; Reletting. Whether not this Sublease has been terminated as herein provided, re-enter and repossess the Subleased Premises or any part thereof by summary proceedings, ejectment or otherwise, and Sublandlord
shall have the right to remove all persons and property therefrom. Sublandlord shall be under no liability for or by reason of any such entry, repossession or removal, and no such re-entry or taking of possession of the Subleased Premises by Sublandlord
shall be construed as an election on Sublandlord’s part to terminate this sublease or to accept a surrender thereof unless a written notice of such intention be given to Subtenant or unless the termination of this Sublease be decreed by a court of
competent jurisdiction. Sublandlord shall have no obligation to mitigate damages; however, after repossessing the Subleased Premises or any part thereof whether or not the Term shall have been terminated, Sublandlord may at its option make commercially
reasonable efforts to relet all or any part of the Subleased Premises for the account of Subtenant for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the Term) and on such conditions
(which may include concessions or free rent) and or such uses as Sublandlord, in its sole discretion, may determine, and Sublandlord may collect any rents payable by reason of such reletting and apply the same on account of Rent due and to become due
hereunder. Sublandlord shall not be required to accept any tenant offered by Subtenant or observe any instruction given by Subtenant about such reletting, or do any act or exercise any care or diligence with respect to such reletting. For the purpose of
such reletting, Sublandlord may decorate or make repairs, changes, alterations or additions in or to the Subleased Premises or any part thereof to the extent deemed by Sublandlord desirable or convenient, and the cost of such decoration, repairs, changes,
alterations or additions shall be charged to and be payable by Subtenant as Rent hereunder, as well as any reasonable advertising costs and brokerage and legal fees expended by Sublandlord. Sublandlord reserves the right to terminate this Sublease at any
time after taking possession of the Subleased Premises. Neither termination nor repossession and reletting shall relieve Subtenant of its obligations hereunder, all of which shall survive such termination, repossession or reletting. Sublandlord may file
suit to recover any sums falling due from time to time and no suit or recovery of any sum due Sublandlord hereunder shall be any defense to any subsequent action brought for any amount not theretofore reduced to judgment in favor of Sublandlord; or
(d) Liquidated Damages. Terminate this Sublease and recover from Subtenant upon demand therefor, unless Subtenant has paid the whole of accelerated Rent pursuant to subparagraph (a) above, as liquidated and agreed upon final damages
for Subtenant’s default, an amount equal to the difference, if any, between (a) Rent and other sums which would be payable under this Sublease for the remainder of the Term, discounted to present worth at the rate of five (5%) percent per annum, and
(b) the then Fair Market Rent of the Subleased Premises, calculated as set forth in Article 3, discounted to present worth at a like rate.
19.3 Calculation of Rent
Notwithstanding anything else herein contained, in calculating future Rent for purposes of subparagraphs 19.2(a), 19.2(c) and 19.2(d) above, Sublandlord’s reasonable and good faith estimate of future Operating Expenses and future Real Property
Taxes shall be conclusive and binding on the parties. In addition, Sublandlord may include as an item of Rent its reasonable attorney’s fees and costs in enforcing its rights hereunder.
19.4 Waivers by Subtenant
In the event of a termination of this Sublease as a result of an Event of Default, Subtenant hereby waives all right to recover or regain possession of the Subleased Premises, to save forfeiture by payment of Rent due or by other performance of the
conditions, terms or provisions hereof. If such termination occurred by reason of a failure in performance hereof, and without limitation of or by the foregoing, Subtenant waives all right to reinstate or redeem this Sublease notwithstanding any
provisions of any statute, law or decision now or hereafter in force or effect, and Subtenant waives all right to any second or further trial in summary proceedings, ejectment or in any other action provided by any statute or decision now or hereafter in
force or effect. Subtenant hereby waives all notices required by the Landlord and Tenant Act of 1951, as amended, and as the same may hereafter be amended, and/or any other provision of Pennsylvania law.
19.5 Right of Sublandlord to Injunction; Remedies Cumulative
Upon any actual or threatened Event of Default, Sublandlord shall have the right of injunction to restrain the same. The rights and remedies given to Sublandlord in this Sublease are distinct, separate and cumulative remedies, and no one of them,
whether or not exercised by Sublandlord, shall be deemed to be in exclusion of any of the others.
19.6 Waiver of Jury Trial
Sublandlord and Subtenant (and Prime Landlord to the extent the provisions of this Sublease are applicable to it) hereby waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other on any
matters whatsoever arising out of or in any way connected with this Sublease, the relationship of Sublandlord and Subtenant, Subtenant’s use or occupancy of the Subleased Premises, and/or any claim of injury or damage, or for the enforcement of any
remedy under any statute, emergency or otherwise.
19.7 Definition of Subtenant
The term "Subtenant" shall be deemed to include all persons or entities named as Subtenant under this Sublease, or each and every one of them. If any of the obligations of Subtenant hereunder is guaranteed by another person or entity,
the term "Subtenant" shall be deemed to include all of the guarantors. If this Sublease has been assigned, the term "Subtenant" shall be deemed to include both the assignee and the assignor.
20. Covenant Against Liens
Subtenant has no authority or power to cause or permit any lien or encumbrance of any kind whatsoever, whether created by act of Subtenant, operation of law or otherwise, to attach to or be placed upon the Building or the Subleased Premises, or on
Subtenant’s leasehold hereunder, Subtenant further agrees not to suffer or permit any lien of mechanics or materialmen or others to be placed against the Property, the Building or the Subleased Premises, or any portion thereof, with respect to work
or services performed for or materials furnished to Subtenant or the Subleased Premises (including, without limitation, in connection with the Subtenant Improvements and any Alterations). Subtenant agrees to cause any such lien to be immediately released
and removed of record, at Subtenant’s expense. Subtenant affirms that the Subtenant Improvements are solely for the use and benefit of Subtenant, and not in any way for the immediate benefit of Sublandlord or Prime Landlord.
21. Interest on Subtenant’s Obligations; Late Charges
21.1 Interest
Any amount due from Subtenant to Sublandlord which is not paid within five days after it is due shall bear interest at ten (10%) percent per annum, from the date such payment is due until paid, but the payment of such interest shall not excuse or cure
any default or Event of Default by Subtenant under this Sublease.
21.2 Late Charge
In the event Subtenant is more than five days late in paying any amount of Rent due under this Sublease, Subtenant shall pay Sublandlord a late charge equal to two percent (2%) of each delinquent amount of Rent and any subsequent delinquent amount of
Rent. The parties agree that the amount of such late charge represents a reasonable estimate of the cost and expense that would be incurred by Sublandlord in processing each delinquent payment of Rent by Subtenant and that such late charge shall be paid
to Sublandlord as liquidated damages for each delinquent payment, but the payment of such late charge shall not excuse or cure any default or Event of Default by Subtenant under this Sublease. The parties further agree that the payment of late charges
and the payment of interest provided for in the preceding paragraph are distinct and separate from one another in that the payment of interest is to compensate Sublandlord for the use of Sublandlord’s money by Subtenant, while the payment of a late
charge is to compensate Sublandlord for the additional administrative expense incurred by Sublandlord in handling and processing delinquent payments, but excluding attorneys' fees and costs incurred with respect to such delinquent payments.
22. Lease Fees
Subtenant represents and warrants to Sublandlord that it has not had any contact or dealings with any real estate broker, agent, representative or other intermediary other than Thomas Realty Partners LP and Grubb & Ellis Company and Greenville
Partners L.L.C. (collectively, the "Representatives") which would give rise to the payment of any fee in connection with this Sublease or the Consent. Subtenant shall indemnify Sublandlord and the Prime Landlord from and against any loss, liability or damage (including
attorneys’ fees and costs) with respect to any fee (except to the persons named above) arising out of any breach or alleged breach of the foregoing representation and warranty. In consideration therefor, Sublandlord (and Prime Landlord by its
Consent to this Sublease) agrees to pay fees due the persons named above in connection with this Sublease in accordance with separate fee agreements between Sublandlord, Prime Landlord and the persons named above.
23. Rules and Regulations
The "Rules and Regulations" attached hereto as Exhibit "H" are hereby incorporated herein and made a part of this Sublease. Subtenant agrees to abide by and comply with each and every one of said Rules and Regulations and
any amendments, modifications and/or additions thereto as may hereafter be adopted by Sublandlord or Prime Landlord for the safety, care, security, good order and cleanliness of the Subleased Premises, the Building, the Garage or any other portion of the
Property, provided that such Rules and Regulations are applied uniformly to all tenants of the Building. Prime Landlord shall have the right to amend, modify or add to the Rules and Regulations in its sole discretion. Subtenant shall not be obligated to
comply with any future Rules and Regulations or amendments thereto until Subtenant has received a written copy of such Rules and Regulations.
24. Directory Board and Signs
24.1 Directory Board
During the Term, Subtenant shall have the right to designate one (1) name (a department or individual) per thousand square feet of Rentable Area in the Subleased Premises occupied by Subtenant for placement on the directory board in the lobby of the
Building. Prime Landlord shall have the option to maintain, in place of the directory board in the lobby of the Building, a computerized directory with display screen which has the capacity to accommodate Subtenant’s designation of names as set
forth above.
24.2 Interior Signs
Subtenant shall be permitted to install, at its own expense, appropriate signage containing the name of Subtenant or its Affiliates at the entrance to the Subleased Premises, and, so long as Subtenant leases all of the Rentable Area on individual
floors of the Subleased Premises, on the walls of the elevator lobbies on each floor of the Subleased Premises leased solely by Subtenant. Any such signage will be designed and constructed in a manner compatible with Building standard signage and
graphics criteria and shall be subject to Sublandlord’s and Prime Landlord’s prior written approval which approval shall not be unreasonably withheld or delayed. Upon expiration of the Term, Subtenant shall promptly remove all its signs and
repair and restore the surfaces on which, such signs were attached to their prior condition, at Subtenant’s expense.
25. Deliberately Omitted
26. General Provisions
26.1 No Waiver
The waiver by Sublandlord of any breach of any provision contained in this Sublease, or the failure of Sublandlord to insist on the strict performance by Subtenant, shall not be deemed to be a waiver of such provision as to any subsequent breach
thereof or of any other provision contained in this Sublease. The acceptance of Rent hereunder by Sublandlord shall not be deemed to be a waiver of any breach or default by Subtenant regardless of Sublandlord’s knowledge of such breach or default at
the time of acceptance of Rent.
26.2 Sublandlord’s Right to Perform
If Subtenant shall fail to perform any act required to be performed by Subtenant, Sublandlord may, after giving any notice and allowing any grace period required by Article 19 ("Defaults and Remedies") without obligation, and without
waiving or releasing Subtenant from any default or obligations of Subtenant, make any such payment or perform any other act which Subtenant should have performed. All sums so paid by Sublandlord and all costs incurred by Sublandlord in making such
payment or performing such other act or obligation and/or in enforcing this Sublease, including attorneys’ fees, together with interest thereon at ten (10%) percent per annum, shall be payable to Sublandlord on demand and Subtenant agrees to pay any
such sums, and Sublandlord shall have (in addition to any other right or remedy hereunder) the same rights and remedies in the event of the non-payment thereof by Subtenant as in the case of default by Subtenant in the payment of Rent. If Prime Landlord
defaults in the performance of its obligations under the Consent or the Prime Lease and such default results in a breach of this Sublease by Sublandlord, Subtenant shall not seek any remedy for such alleged breach by Sublandlord unless and until Subtenant
gives a notice of such breach to Sublandlord, specifying the basis therefor, and Sublandlord is given a period of at least thirty (30) days after receipt of such notice in which to cause Prime Landlord to perform its obligations under the Prime Lease or
Landlord Consent or to perform the Prime Landlord’s obligations on its behalf; provided that such thirty (30) day period shall be extended to such longer period as is commercially reasonably required for Prime Landlord to perform, or for Sublandlord
to perform on its behalf, so long as Sublandlord promptly commences and diligently pursues such performance.
26.3 Terms; Headings
The words "Sublandlord" and "Subtenant" as used herein shall include the plural, as well as the singular. The words used in neuter gender include the masculine and feminine and words in the masculine or feminine gender include the
neuter. If there is more than one Subtenant, the obligations hereunder imposed upon Subtenant shall be joint and several. The headings or titles of this Sublease shall have no effect upon the construction or interpretation of any part hereof.
26.4 Entire Agreement
This instrument along with any exhibits and attachments or other documents attached hereto constitutes the entire and exclusive agreement between Sublandlord and Subtenant with respect to the Subleased Premises. This instrument and said exhibits and
attachments and other documents may be altered, amended, modified or revoked only by an instrument in writing signed by both Sublandlord and Subtenant. Sublandlord and Subtenant hereby agree that all prior or contemporaneous oral and written
understandings, agreements or negotiations relative to the leasing of the Subleased Premises are merged into and superseded by this instrument.
26.5 Successors and Assigns
Subject to the provisions of Article 14 relating to Assignment and Sublease, this Sublease is intended to and does bind the successors and assigns of any and all of the parties hereto.
26.6 Notices
All notices, consents, approvals, requests, demands and other communications (collectively "notices") which Sublandlord or Subtenant is required or desires to serve upon, or deliver to, the other shall be in writing and shall be sent
by certified or registered mail, return receipt requested, or by personal delivery, or by a reputable commercial overnight courier service (such as, but not limited to, Federal Express), or by facsimile transmission, to the appropriate address indicated
below, or at such other place or places as either Sublandlord or Subtenant may, from time to time, designate in a written notice given to the other. If the term "Subtenant" in this Sublease refers to more than one person or entity, Sublandlord
shall be required to make service or delivery, as aforesaid, to any one of said persons or entities only. Notices shall be deemed sufficiently served or given at the time of receipt. Notices shall be addressed as follows:
to Subtenant:
Delaware Management Holdings, Inc.
c/o Delaware Investments
One Commerce Square, 34th Floor
2005 Market Street
Philadelphia, Pennsylvania 19103
Attention: General Counsel
Fax: 215-255-2822
Delaware Management Holdings, Inc.
c/o Delaware Investments
One Commerce Square
2005 Market Street
Philadelphia, Pennsylvania 19103
Attention: Vice President, Facilities Management
with a copy to:
Stradley, Ronon, Stevens & Young, LLP
2600 One Commerce Square
2005 Market Street
Philadelphia, Pennsylvania 19103
Attention: Linda Ann Galante, Esquire
Fax: 215-564-8120
and if the notice is pursuant to Article 11 of this Sublease, to:
Lincoln National Corporation
Centre Square West Tower
1500 Market Street, Suite 3900
Philadelphia, Pennsylvania 19102-2112
Attention: Bruce R. Boehmke (9833)
Director, Corporate Risk Management
and if it is an invoice under this Sublease, to:
Delaware Management Holdings, Inc
c/o Delaware Investments
One Commerce Square
2005 Market Street
Philadelphia, Pennsylvania 19103
Attention: Vice President, Facilities Management
to Sublandlord:
New York Central Lines LLC
2001 Market Street
Philadelphia, Pennsylvania 19103
Attention: Asst. Vice President, Real Estate
with a copy to:
CSX Real Property, Inc.
301 West Bay, Suite 800
Jacksonville, Florida 32202
Attention: Stephen A. Crosby,
Vice President, Real Property
Fax: 904-633-4531
with a copy to:
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Attention: Chris M. Smith, Esquire
Fax: 212-848-7300
to Prime Landlord:
Philadelphia Plaza-Phase II
c/o Thomas Properties Group, LLC
Attention: Vice President, Property Management
One Commerce Square
2005 Market Street - Suite 2300
Philadelphia, Pennsylvania 19103
Fax: 215-851-6021
Notices shall be effective upon receipt. In the case of rejection or other refusal to accept a notice, or inability to deliver because of a changed address of which no notice was given, the notice shall be deemed to be received on the date delivery
was first attempted.
26.7 Severability
If any provision of this Sublease, the deletion of which would not adversely affect the receipt of any material benefit by either party hereunder, shall be held invalid or unenforceable to any extent, the remaining provisions of this Sublease shall not
be affected thereby and each of said provisions shall be valid and enforceable to the fullest extent permitted by law.
26.8 Time of Essence
Time is of the essence of this Sublease and each provision hereof in which time of performance is established.
26.9 Governing Law
This Lease shall be governed by, interpreted and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to any conflict of laws principles thereof.
26.10 Attorneys’ Fees
In the event of any litigation between the parties, the prevailing party shall be entitled to obtain, as part of the judgement, all reasonable attorneys’ fees, costs and expenses incurred in connection with such litigation, except as may be
limited by applicable law.
26.11 Light and Air
Any diminution or shutting off of light, air or view by any structure which may be erected on lands adjacent to the Building or any other portion of the Property shall in no manner affect this Sublease or impose any liability whatsoever on Sublandlord.
26.12 Bankruptcy Prior to Commencement
If, at any time prior to the Commencement Date, any action is taken by or against Subtenant in any court pursuant to any statute pertaining to bankruptcy or insolvency or the reorganization of Subtenant, Subtenant makes any general assignment for the
benefit of creditors, a trustee or receiver is appointed to take possession of substantially all of Subtenant’s assets or of Subtenant’s interest in this Sublease, or there is an attachment, execution or other judicial seizure of substantially
all of Subtenant’s assets or of Subtenant’s interest in this Sublease, then this Sublease shall ipso facto be canceled and terminated and of no further force or effect. In such event, neither Subtenant nor any person claiming through or under
Subtenant or by virtue of any statute or of any order of any court shall be entitled to possession of the Subleased Premises or any interest in this Sublease and Sublandlord shall, in addition to any other rights and remedies under this Sublease, be
entitled to retain any Rent, security deposit or other monies received by Sublandlord from Subtenant as liquidated damages.
26.13 Force Majeure
Neither party shall be liable for any failure to comply or delay in complying with its obligations hereunder (other than the obligation to pay sums of money) if such failure or delay is due to Force Majeure Events. Sublandlord shall not be obliged to
settle any strike to avoid a Force Majeure Event from continuing.
26.14 Applicable Laws
At its sole cost and expense, Subtenant shall promptly comply with all requirements of Applicable Laws, other than making structural changes, relating to or arising out of the use, occupancy, repair or alteration of the Subleased Premises. Sublandlord
shall cause Prime Landlord to comply with all Applicable Laws governing operation of the Building except to the extent any failure to comply is caused by Subtenant or its agents, employees or representatives.
26.15 Estoppel Certificates
(a) Either party shall, without charge, at any time and from time to time hereafter, within ten (10) days after written request of the other, certify by written instrument duly executed and acknowledged to any mortgagee or purchaser, or proposed
mortgagee or proposed purchaser, or any other person, firm or corporation specified in such request: (a) as to whether this Sublease has been supplemented or amended, and, if so, the substance and manner of such supplement or amendment; (b) as to the
validity and force and effect of this Sublease, in accordance with its tenor as then constituted; (c) as to the existence of any default or Event of Default thereunder; (d) as to the existence of any offsets, counterclaims or defenses thereto on the part
of such other party; (e) as to the commencement and expiration dates of the term of this Sublease and the date to which Rent has been paid; and (f) as to any other matters as may reasonably be so requested. Any such certificate may be relied upon by the
party requesting it and any other person, firm or corporation to whom the same may be exhibited or delivered and the contents of such certificate shall be binding on the party executing same.
26.16 Examination of Sublease
The submission of this instrument for examination or signature by Subtenant, Subtenant’s agents or attorneys, does not constitute a reservation of, or an option to lease, and this instrument shall not be effective or binding as a lease or
otherwise until (a) its execution and delivery by both Sublandlord and Subtenant; and (b) execution and delivery of the Consent in form and substance satisfactory to Subtenant and Prime Landlord.
26.17 Sublandlord Liability
Notwithstanding anything in this Sublease or any law to the contrary, the liability of Sublandlord (including Prime Landlord and any other successor landlord hereunder) under this Sublease and any recourse by Subtenant against Sublandlord shall be
limited solely to the interest of Sublandlord in the Property, and neither Sublandlord, nor any of its constituent members, nor any of their respective affiliates, partners, directors, officers, employees, agents or shareholders shall have any personal
liability therefor, and Subtenant, for itself and all persons claiming by, through or under Subtenant, expressly waives and releases Sublandlord and such related persons and entities from any and all personal liability.
26.18 Confidentiality
This Sublease is intended to be confidential, and Sublandlord and Subtenant each agrees not to disclose any of the financial terms or provisions hereof to any other party (other than Prime Landlord) except (a) to its officers, directors, partners,
members, managers, agents, representatives, attorneys, accountants, and other independent experts or advisors, (b) in connection with any regulatory filing or financial disclosure requirements, or (c) in connection with its enforcement of this Sublease.
27. Roof; Telecommunications Equipment
(a) Provided and to the extent there is no adverse affect on the Building structure and Building Systems, and provided that Subtenant enters into a mutually satisfactory rooftop antenna and equipment license agreement with Prime Landlord (or, at
Prime Landlord’s election, with Prime Landlord’s rooftop equipment management firm), Subtenant may utilize the roof of the Building to the extent practicable and reasonable, for the installation and use of at least one (1) satellite dish of up
to 3 feet in diameter and related telecommunications equipment (including data link, fibre optic cabling and/or other equipment) to service the Subleased Premises (collectively, the "Equipment") within the area of the roof not used for safety areas, and except for areas reasonably reserved by Landlord for Building operations and in an area mutually acceptable to Prime Landlord and Subtenant. Subtenant’s installation
of such Equipment shall be subject to Subtenant obtaining all required governmental approvals and permits, including any conditional use permits required, shall be subject to Prime Landlord’s reasonable approval of all aspects of the installation,
including the height and weight of the Equipment, shall also be subject to Subtenant’s installation of such Equipment in accordance with all applicable building codes, and shall be at Subtenant’s sole cost and expense. Under no circumstances
shall the installation of such Equipment, or the cables and lines in connection therewith, interfere in any way with the maintenance, operation of efficiency of any of the Building Systems or Prime Landlord’s right to install antennae for the
Building, or for other Subtenants and third party licensees. Subtenant shall protect, defend, indemnify and hold Prime Landlord harmless from and against any and all liabilities to any third party, any and all liens imposed upon the Building, and any and
all costs or damages incurred by Prime Landlord as a result of Subtenant’s use and installation of said Equipment. Prime Landlord shall have the right to require Subtenant at its sole cost and expense to remove any such Equipment and all related
cables and lines, upon the termination of this Sublease and to require Subtenant to repair all damage and restore the Building to the condition it was in prior to the installation of such Equipment, ordinary and wear and tear excepted. Subtenant shall
pay any expenses of Prime Landlord or Sublandlord (equal to any actual cost of providing same) in connection with Subtenant’s installation and use of such Equipment in accordance with this Article 27. Subtenant shall also pay a license fee to Prime
Landlord for its use and installation of the Equipment on the rooftop at the prevailing rate for the Building.
(b) Subtenant shall be solely responsible for its Equipment, including fiber optic cabling, lines and connections from the point of origin to the Subleased Premises. Neither Sublandlord nor Prime Landlord shall have any liability to Subtenant for
the failure or defects in such Equipment or the related cables and lines and connections. Subtenant shall provide, at is expense, for the repair and maintenance of, and security for, its Equipment and any cables, lines and connections located outside of
the Subleased Premises. Sublandlord shall cooperate, and shall cause Prime Landlord to cooperate reasonably with Subtenant’s necessary access to the Building’s main telephone switch room and riser space for the installation of Subtenant’s
Equipment, subject to all of the rules and regulations of the Building governing such access by tenants or vendors.
28. Representations
28.1 Subtenant Representations
Subtenant hereby represents and warrants to Sublandlord (which may be relied upon by Prime Landlord and its lender(s) from time to time) as follows:
(a) Subtenant is a corporation existing under the laws of the State of Delaware;
(b) Subtenant’s audited net worth as of December 31, 1998 is not less than $100,000,000;
(c) Subtenant is duly formed, validly existing and in good standing under the laws of its state of formation, has the power and authority to operate and conduct each of its businesses, and is qualified to conduct its businesses in the Commonwealth
of Pennsylvania;
(d) Subtenant has the power and authority to execute and deliver, and perform the obligations under, this Sublease, and all necessary corporate, limited liability or partnership actions necessary to authorize the execution and delivery hereof have
been duly taken; and
(e) The individual or individuals executing this Sublease on behalf of Subtenant have the necessary authority to bind Subtenant and act on its behalf in the execution and delivery hereof.
28.2 Sublandlord Representations
Sublandlord hereby represents and warrants to Subtenant as follows:
(a) Sublandlord is a limited liability company that is the assignee from Consolidated Rail Corporation of the tenant’s right, title and interest in and to the Prime Lease for the Building;
(b) Sublandlord is duly formed, validly existing and in good standing under the laws of its state of formation, has the power and authority to operate and conduct each of its businesses, and is qualified to conduct its businesses in the Commonwealth
of Pennsylvania;
(c) Sublandlord has the power and authority to execute and deliver, and perform the obligations under, this Sublease, and all necessary corporate, limited liability or partnership actions necessary to authorize the execution and delivery hereof have
been duly taken; and
(d) The individual or individuals executing this Sublease on behalf of Sublandlord have the necessary authority to bind Sublandlord and act on its behalf in the execution and delivery hereof.
29. Incorporation of Prime Lease
(a) This is a Sublease and as such is subject to all of the terms of the Prime Lease applicable to the Subleased Premises with the same force and effect as if fully set forth herein at length excepting only as otherwise specifically provided herein.
All of the terms with which Sublandlord is bound to comply under the Prime Lease shall to the extent only that they apply to the Subleased Premises and except as otherwise provided herein, be kept, observed and performed by Subtenant. All of the
obligations of the Prime Landlord set forth in the Prime Lease shall, to the extent that they apply to the Subleased Premises, inure to Subtenant’s benefit, except as otherwise provided herein. It is the intention of the parties that, except as
otherwise provided in this Sublease, the relationship between Sublandlord and Subtenant shall be governed by the language of the various articles of the Prime Lease as if they were typed out in this Sublease in full. Subtenant hereby acknowledges receipt
of a redacted copy of the Prime Lease and agrees to be bound as aforesaid.
(b) Without limitation of subparagraph (a) above, the parties agree that the following provisions of the Prime Lease are inapplicable to the Subleased Premises:
Section 1.1 ("Description of Premises"), except for certain Definitions;
Section 1.2 ("Hold Space Option");
Article 2 ("Purpose of Lease");
Article 3 ("Term");
Article 4 ("Basic Rent")
Section 5.2
Section 5.3
Section 5.4
Section 5.6
Section 5.7 (part of "Operating Expenses and Taxes");
Article 7 ("Construction of Tenant Improvements");
Article 8 ("Parking Facilities");
Section 9.1 ("Landlord Obligations");
Section 9.2 ("Direct Charge for Extraordinary Services");
Section 9.7 ("Arbitration of Disputes");
Section 10.4 ("Dining Room and Kitchen Facility");
Section 12.1 ("Alterations");
Section 12.2 ("Surrender or Removal of Improvements");
Section 12.4 ("Arbitration of Disputes");
Section 14.4 ("Arbitration of Disputes");
Section 15.3 ("Name; Address");
Article 16 ("Indemnification and Limitation on Liability");
Article 17 ("Insurance; Waiver of Subrogation"), except for Section 17.4 ("Landlord’s Requirements"), Section 17.5 ("Waiver of Subrogation") and Section 17.6 ("Right to Self Insure")
Article 18 ("Damage or Destruction") except Sections 18.1(a) and 18.6
Article 19 ("Eminent Domain");
Article 20 ("Assignment and Subletting");
Article 22 ("Defaults and Remedies");
Article 23 ("Subordination");
Article 24 ("Estoppel Certificate");
Section 25.4 ("Fixtures and Improvements")
Article 26 ("Holding Over");
Article 27 ("Landlord’s Right to Perform);
Section 27.3 ("Interest");
Section 27.4 ("Late Charges");
Article 29 ("Construction of Building and Project");
Article 30 ("Tenant’s Approval Rights");
Article 32 ("Examination of Lease");
Article 33 ("Broker");
Article 34 ("Rules and Regulations");
Article 35 ("Arbitration and Appraisal Procedure);
Article 36 ("Directory Board and Building Identification");
Article 37 ("Other Tenants");
Article 38 ("Right to Cancel");
Article 39 ("Option to Lease Additional Premises");
Article 40 ("Antenna");
Article 41 ("Stairwells; Telephones, Fiber Optic Cable");
Article 42 ("General Provisions");
Exhibit "A";
Exhibit "B";
Exhibit "C";
Exhibit "D";
Exhibit "E";
Exhibit "G";
Exhibit "H";
Exhibit "J"; and
Exhibit "K"
First, Second and Third Amendments
Letter Agreements dated June 3, 1993 and September 9, 1994
Notice of Capital Contribution, Assignment and Assumption dated June 1, 1999 and Consent by Prime Landlord
30. Quiet Enjoyment; SNDA; Fourth Amendment to Prime Lease
(a) Sublandlord covenants and agrees with Subtenant that upon Subtenant paying the Rent reserved in this Sublease and observing and performing all of the other obligations, terms, covenants and conditions of this Sublease on Subtenant’s part to
be observed and performed, Subtenant may peaceably and quietly enjoy the Subleased Premises during the Term; provided, however, that this Sublease shall automatically terminate upon any termination of the Prime Lease prior to the expiration of the Term,
subject to the provisions of the Consent, and Subtenant shall have no claim against Sublandlord unless such termination was caused by the default of Sublandlord in the performance of any obligation under the Prime Lease which has not been assumed by
Subtenant hereunder.
(b) Sublandlord shall use commercially reasonable efforts to obtain for Subtenant a subordination, non-disturbance and attornment agreement ("SNDA") from Bank of America, the current holder of the Mortgage on the Building, in form
and substance mutually acceptable to Subtenant and Bank of America. If Sublandlord and/or Prime Landlord is unable to obtain such an agreement within sixty (60) days after the date on which Sublandlord signs this Sublease, or if Subtenant is unable to
obtain a similar agreement with the mortgagee pursuant to that certain lease between Subtenant, as tenant, and Commerce Square Partners — Philadelphia Plaza, L.P., as landlord, for the One Commerce Square Building, Philadelphia, Pennsylvania, (the
"One Commerce Lease"), within the aforesaid 60-day period, then, in either of such events, Sublandlord shall so notify Subtenant in writing and Subtenant shall have ten (10) days after receipt of such notice within which it may, at its option,
elect to cancel this Sublease by notice in writing to Sublandlord and Prime Landlord and, if Subtenant elects to give such notice, this Sublease shall be entirely null and void, provided; however, if such notice shall not be delivered by Subtenant within
the time period for such notice or specified herein, time being of the essence, this Sublease shall be deemed in full force and effect. With respect to any future Mortgages, Subtenant agrees that it will subordinate its interests hereunder only upon the
execution and delivery of a commercially reasonable SNDA with any new lender(s).
(c) Subtenant covenants and agrees that Subtenant shall not do or suffer or permit anything to be done which would constitute a default under the Prime Lease or would cause the Prime Lease to be canceled, terminated or forfeited by virtue of any
rights of cancellation, termination, or forfeiture reserved or vested in Prime Landlord under the Prime Lease, and that Subtenant will indemnify and hold harmless Sublandlord from and defend Sublandlord against all claims, liabilities, losses and damages
of any kind whatsoever (excepting indirect, special and consequential damages) that Sublandlord may incur by reason of, resulting from or arising out of any such cancellation, termination) or forfeiture.
(d) Sublandlord and Prime Landlord shall use commercially reasonable efforts to negotiate and execute a Fourth Amendment to Prime Lease approving this Sublease and, among other things, setting the deemed termination date of the Subleased Premises
and agreeing to the Consent (the "Fourth Amendment"). If Sublandlord and Prime Landlord are unable to enter into the Fourth Amendment within sixty (60) days after the date on which Sublandlord signs this Sublease, Sublandlord shall so notify Subtenant in writing and Subtenant
shall have ten (10) days after receipt of such notice within which it may elect to cancel this Sublease by notice in writing to the Sublandlord and Prime Landlord and, if Subtenant elects to give such notice, this Sublease shall be entirely null and void.
31. One Commerce Square
Subtenant shall have the right to terminate and cancel this Sublease if it does not enter into a Lease Agreement, on terms and conditions acceptable to Subtenant, for certain premises existing in the One Commerce Square Building within sixty (60) days
after the date on which Sublandlord signs this Sublease. Subtenant shall exercise this right to terminate by giving Sublandlord notice within sixty (60) days after the date on which Sublandlord signs this Sublease, in which case this Sublease shall be
entirely null and void, provided, however, if such notice shall not be delivered by Subtenant within the time period for such notice specified herein (time being of the essence), this Sublease shall be deemed to be in full force and effect.
32. Release of Renewal Rights by Sublandlord
In order to enable Subtenant and Prime Landlord (pursuant to the Consent) to enter into a direct lease for the Subleased Premises upon expiration of the Term of this, Sublease, Sublandlord hereby waives and relinquishes any rights it may have under the
Prime Lease to renew the Prime Lease with respect to the Subleased Premises. This waiver shall apply only to the Subleased Premises and the fifth, sixth and eighth floors (and not to any other part of the Building, or any other renewal rights Sublandlord
may now have).
33. Fifth, Sixth and Eighth Floors (the "Option Space")
Subtenant shall have the following options to lease additional space in the Building, subject to the terms and conditions set forth in this Article 33:
