LEASE
--------------------------
781 THIRD PARTNERSHIP,
Landlord
INTERDIGITAL COMMUNICATIONS CORPORATION,
Tenant
TABLE OF CONTENTS
Article Page
1. USE AND RESTRICTIONS ON USE 6
2. TERM 7
3. RENT 8
4. TAXES 9
5. LETTER OF CREDIT 10
6. ALTERATIONS 11
7. REPAIR 12
8. LIENS 13
9. ASSIGNMENT AND SUBLETTING 14
10. INDEMNIFICATION 16
11. INSURANCE 17
12. WAIVER OF SUBROGATION 18
13. SERVICES AND UTILITIES 18
14. HOLDING OVER 18
15. SUBORDINATION 19
16. REENTRY BY LANDLORD 19
17. DEFAULT 20
18. REMEDIES 21
19. TENANT'S BANKRUPTCY OR INSOLVENCY 26
20. QUIET ENJOYMENT 27
21. DAMAGE BY FIRE, ETC 27
-2-
22. EMINENT DOMAIN 29
23. SALE BY LANDLORD 29
24. ESTOPPEL CERTIFICATES 30
25. SURRENDER OF PREMISES 30
26. NOTICES 31
27. TAXES PAYABLE BY TENANT 31
28. DEFINED TERMS AND HEADINGS 32
29. TENANT'S AUTHORITY 32
30. COMMISSIONS 33
31. TIME AND APPLICABLE LAW 33
32. SUCCESSORS AND ASSIGNS 33
33. ENTIRE AGREEMENT 33
34. EXAMINATION NOT OPTION 33
35. RECORDATION 34
36. LIMITATION OF LANDLORD'S LIABILITY 34
37. SIGNS 34
38. LANDLORD'S REPRESENTATIONS AND CONTINGENCIES 34
39. EXPANSION 35
40. WAIVERS 35
EXHIBIT A - PREMISES
EXHIBIT B - INITIAL ALTERATIONS
EXHIBIT C - LETTER OF CREDIT
-3-
SINGLE TENANT INDUSTRIAL LEASE
REFERENCE PAGE
BUILDING: 781 Third Avenue, King of
Prussia, Pennsylvania
LANDLORD: 781 Third Partnership
LANDLORD'S ADDRESS 1621 Wood Street
Philadelphia PA 19103
LEASE REFERENCE DATE: July 14, 1995
TENANT: Interdigital Communications
Corporation
TENANT'S ADDRESS:
(a) As of beginning of Term: ___________________________
(b) Prior to beginning of Term 2200 Renaissance Blvd.
Suite 105
King of Prussia PA 19406
BUILDING RENTABLE AREA: Approximately 50,600 sq. ft.
USE: See Section 1.1
SCHEDULED COMMENCEMENT DATE: December 1, 1995
TERMINATION DATE: December 30, 2000
TERM OF LEASE: Five (5) years beginning on
Commencement Date and ending
on the Termination Date
(unless sooner terminated
pursuant to the Lease)
INITIAL ANNUAL RENT (Article 3): $375,000.00
INITIAL MONTHLY INSTALLMENT OF
ANNUAL RENT (Article 3): $31,250.00
ASSIGNMENT/SUBLETTING FEE: See Article 9
SECURITY DEPOSIT: See Article 5
-4-
REAL ESTATE BROKER DUE COMMISSION: None.
The Reference Page information is incorporated into and made a part of the
Lease. In the event of any conflict between any Reference Page information
and the Lease, the Lease shall control. This Lease includes Exhibits A
through C, all of which are made apart of this Lease.
LANDLORD: TENANT:
781 THIRD PARTNERSHIP INTERDIGITAL COMMUNICATIONS
By: Wood Street Realty, Inc. CORPORATION
By: /s/ Kevin Flynn By: /s/ James W. Garrison
----------------------- ---------------------------
Title: General Partner Title: Vice President, Chief
Financial Officer
Dated: July 14, 1995 Dated: July 14, 1995
-5-
LEASE
By this Lease Landlord leases to Tenant and Tenant leases from Landlord
the Building as set forth and described on the Reference Page (the
"Premises"). The Reference Page, including all terms defined thereon, is
incorporated as part of this Lease.
1. USE AND RESTRICTIONS ON USE.
1.1 The Premises are to be used solely for purposes permitted under
the Upper Merion Township Zoning Code. Tenant shall not do or permit anything
to be done in or about the Premises which will in any way be unlawful. Tenant
shall not do, permit or suffer in, on, or about the Premises the sale of any
alcoholic liquor without the written consent of Landlord first obtained.
Tenant shall comply with all governmental laws, ordinances and regulations
applicable to Tenant's specific use of the Premises and its occupancy and
shall promptly comply with all governmental orders and directions regarding
such use and occupancy for the correction, prevention and abatement of any
violations in or upon, or in connection with, the Premises, all at Tenant's
sole expense. Pursuant to Section 2.1, Landlord shall construct the Premises,
and shall otherwise fulfill Landlord's obligations under this Lease, in
compliance with all applicable laws, ordinances and regulations in effect as
of the Commencement Date. All changes thereafter required by changes in
governmental laws, ordinances and regulations shall be completed by Landlord
and charged to and paid by Tenant in monthly installments on an amortized
basis over the useful life of the change or improvement so required (which
shall be stipulated as ten (10) years) together with each month's installment
of Annual Rent, and Tenant shall only be liable for the period of time
Tenant's lease is in effect. Tenant shall not be liable for the cost of any
repair or remediation of Hazardous Materials (as defined below) on the
Premises except as set forth in Section 1.3 below. Tenant shall not do or
permit anything to be done on or about the Premises or bring or keep anything
into the Premises which will in any way invalidate or prevent the procuring of
any insurance protecting against loss or damage to the Building or any of its
contents by fire or other casualty or against liability for damage to property
or injury to persons in or about the Building or any part thereof. Landlord
acknowledges that the use of the Premises for the purposes permitted hereunder
will not invalidate or prevent the procuring of such insurance.
1.2 Tenant shall not, and shall not direct, suffer or permit any of
its agents, contractors, employees, licensees or invitees to at any time
handle, use, manufacture, store or dispose of in or about the Premises or the
Building any (collectively "Hazardous Materials") flammables, explosives,
radioactive materials, hazardous wastes or materials, toxic wastes or
materials, or other similar substances, petroleum products or derivatives or
any substance subject to regulation by or under any federal, state and local
laws and ordinances relating to the protection of the environment or the
-6-
keeping, use or disposition of environmentally hazardous materials,
substances, or wastes, presently in effector hereafter adopted, all amendments
to any of them, and all rules and regulations issued pursuant to any of such
laws or ordinances (collectively "Environmental Laws"), nor shall Tenant
suffer or permit any Hazardous Materials to be used in any manner not fully in
compliance with all Environmental Laws, in the Premises or the Building and
appurtenant land or allow the environment to become contaminated with any
Hazardous Materials. Notwithstanding the foregoing, and subject to Landlord's
prior consent, Tenant may handle, store, use or dispose of products containing
small quantities of Hazardous Materials (such as aerosol cans containing
insecticides, toner for copiers, paints, paint remover and the like) to the
extent customary and necessary for the use of the Premises for the uses
permitted hereunder; provided that Tenant shall always handle, store, use, and
dispose of any such Hazardous Materials in a safe and lawful manner and never
allow such Hazardous Materials to contaminate the Premises, Building and
appurtenant land or the environment.
1.3 Tenant shall protect, defend, indemnify and hold each and all of
the Landlord Entities (as defined in Article 28) harmless from and against any
and all loss, claims, liability or costs (including court costs and reasonable
attorney's fees) incurred by reason of any actual or asserted failure of
Tenant to fully comply with all applicable Environmental Laws, or by reason of
the handling, use or disposition in or from the Premises of any Hazardous
Materials by Tenant or Tenant's agents, employees, contractors or invitees
(even though permissible under all applicable Environmental Laws or the
provisions of this Lease), or by reason of any actual or asserted failure of
Tenant to keep, observe, or perform any provision of this Section 1.3.
Landlord shall protect, defend, indemnify and hold each and all of the Tenant
Entities (as defined in Article 28) harmless from and against any and all
loss, claims, liability or costs (including court costs and reasonable
attorney's fees) incurred by reason of the actual or asserted presence of
Hazardous Materials on, in or under the property on which the Premises is
situated ("Property") on the date hereof, or any violation of Environmental
Laws arising from the condition of the Property on the date hereof, or by
reason of any actual or asserted failure of Landlord to fully comply with all
applicable Environmental Laws, or the presence of any Hazardous Materials
resulting from any condition identified in the Phase I Environmental Site
Assessment dated June 1995 and prepared by Keating Environmental Management,
Inc., or the presence, handling, use or disposition in or from the Premises of
any Hazardous Materials by Landlord or Landlord's agents, employees,
contractors or invitees (even though permissible under all applicable
Environmental Laws or the provisions of this Lease), or by reason of any
actual or asserted failure of Landlord to keep, observe, or perform any
provision of this Section 1.2.
1.4 Tenant shall have the right, at Tenant's request, to have the Premises
tested for radon, lead paint, water quality, air quality, asbestos and PCBs. All
such tests shall be completed within 14 days after the date hereof, and if the
results of any such tests are unsatisfactory to Tenant in its reasonable
judgment, Tenant shall so advise Landlord in writing
-7-
prior to the expiration of such 14-day period.* Failure by Tenant to notify
Landlord of the objectionable test results within the 14-day period shall
constitute a waiver by Tenant of any right to terminate under this Section
1.4. Landlord shall advise Tenant in writing within ten (10) days after
receipt of Tenant's notice whether Landlord intends to remediate such
condition or to terminate this Lease; if Landlord fails to respond within such
10-day period, this Lease shall be deemed terminated. If Landlord terminates
this Lease by notice to Tenant or by failing to respond in writing within the
10-day period, Tenant shall have the right, by written notice to Landlord
within two (2) business days after receipt of Landlord's termination notice or
expiration of the 10-day period without response from Landlord, as the case
may be, to reinstate this Lease, and shall thereupon be responsible, at
Tenant's expense, for remediating such conditions as may have been
unsatisfactory to Tenant, if Tenant so chooses, Landlord having no liability
to Tenant to remediate such conditions.
* In such event tenant shall have a right to terminate this lease. In the event
the tenant shall exercise its right to terminate, tenant shall reimburse
landlord for its reasonable architechtural and design cost after July 14, 1995.
2. TERM.
2.1 The Term of this Lease shall begin on the date ("Commencement
Date") which shall be the later of the Scheduled Commencement Date as shown on
the Reference Page and the date that Landlord shall tender possession of the
Premises to Tenant. Landlord shall tender possession of the Premises with all
the work, if any, to be performed by Landlord pursuant to Exhibit B to this
Lease substantially completed, and shall give Tenant at least 45 days' advance
notice prior to completion of the work described on Exhibit B. Tenant shall
deliver a punch list of items not completed within 30 days after Landlord
tenders possession of the Premises and Landlord agrees to proceed with due
diligence to perform its obligations regarding such items. Landlord and
Tenant shall execute a memorandum setting forth the actual Commencement Date
and Termination Date. If the cost of completion of the work required to be
performed by Landlord pursuant to Exhibit B is less than $960,000.00, Tenant
shall receive as a credit against the first payment(s) of Annual Rent an
amount equal to ninety percent (90%) of such savings, and Landlord shall be
entitled to retain the other ten percent (10%). Any additional work requested
by Tenant may be added to the work described on Exhibit B provided that Tenant
pays directly for such additional work. All work done by Landlord hereunder
shall be good and workmanlike. Tenant shall have the right to approve any
changes in the plans or specifications, and Tenant's representative may
monitor construction of the Leased Premises at Tenant's expense and advise
Landlord of construction problems observed by such representative.
2.2 Landlord shall use all commercially reasonable efforts to deliver
possession of the premises on or before December 1, 1995. In the event of the
inability of Landlord to deliver possession of the Premises on or before
February 1, 1996 for reasons other than force majeure or events beyond
Landlord's reasonable control, Landlord shall be liable for Tenant's actual out
of pocket costs arising from such delay, to the extent that such costs exceed
the Annual Rent that would have been due from Tenant during the delay period if
the Premises had been delivered by the Scheduled Commencement Date. Tenant shall
not be liable for any rent until the time when Landlord can, after notice to
Tenant, deliver possession of the Premises to Tenant. No such failure to give
possession on the Scheduled Commencement
-8-
Date shall affect the other obligations of Tenant under this Lease. If
Landlord is unable to deliver possession of the Premises by March 1, 1996 (other
than as a result of strikes, shortages of materials, delays caused by Tenant
as set forth below or similar matters beyond the reasonable control of
Landlord and Tenant is notified by Landlord in writing as to such delay),
Tenant shall have the option to terminate this Lease. If such delay is as a
result of: (a) Tenant's failure to agree to plans and specifications; (b)
Tenant's request for materials, finishes or installations other than
Landlord's standard except those, if any, that Landlord shall have expressly
agreed to furnish without extension of time agreed by Landlord; (c) Tenant's
change in any plans or specifications; or (d) performance or completion by a
party employed by Tenant, the Scheduled Commencement Date shall be extended
for the full amount of delay incurred as a result of any of the forgoing
causes. If any delay is the result of any of the foregoing causes (a) through
(d), the Commencement Date and the payment of rent under this Lease shall be
accelerated by the number of days of such delay.
2.3 In the event Landlord shall permit Tenant to occupy a portion of the
Premises prior to the Commencement Date, such occupancy shall be subject to
all the provisions of this Lease except that, until the Commencement Date, the
Annual Rent shall be pro rated based on the square footage occupied by Tenant.
Such early possession shall not advance the Termination Date.
2.4 Tenant shall, provided no Event of Default has occurred hereunder at
the time of notification or commencement of the option, have the option
("Option") to renew this Lease for three (3) additional five (5) year periods,
subject to all of the other terms, covenants, and conditions as set forth
below:
2.4.1 If Tenant elects to exercise the Option, Tenant shall
provide Landlord with written notice ("Option Notice") on or before the date
one hundred eighty (180) days prior to the expiration of the then-current term
of this Lease, and Tenant shall have the option to extend the term of this
Lease for an additional five (5) year period (each a "Renewal Period") from
the date of the expiration of the then-current term, except that the minimum
monthly rental in effect at the expiration of the then-current term shall be
adjusted as set forth below, commencing on the first day of the renewal term.
If Tenant fails to provide the Option Notice, Tenant shall have no further
additional right to extend or renew the term of this Lease.
2.4.2 The minimum monthly rental for each Renewal Term shall
be adjusted to the current market rental for that space as improved for
occupancy for such date. Landlord shall advise Tenant of the fair market rate
for the Leased Premises no later than thirty (30) days after receipt of
Tenant's Option Notice, and Landlord and Tenant shall have thirty (30) days
from the date of the Option Notice to satisfactorily determine the Renewal
Term Annual Rent. If the parties are unable to agree on the Renewal Term
Annual Rent within such 30-day period, Tenant and Landlord shall jointly
select an MAI appraiser to determine the market rent for the Leased Premises
(or if Tenant and Landlord cannot agree on an appraiser, each shall nominate
-9-
an appraiser at its expense, and the two appraisers shall jointly select an
appraiser to determine the market rent for the Leased Premises). The cost of
the appraisal shall be shared equally by the parties. The determination of
the designated appraiser shall be binding upon both parties, provided that in
no event shall the Annual Rent for any Renewal Period be less than the Annual
Rent due in the preceding period.
2.4.3 The Option is not transferable except to Tenant's
successors (as identified in Section 9.7), subsidiaries or affiliates without
Landlord's express written consent (which shall be separate from and
additional to the consent required under Section 9.1).
2.4.4 Tenant shall have no other right to extend the term
beyond the Renewal Term(s) set forth above. All other terms of the Lease
shall remain in full force and effect for each Renewal Term.
3. RENT.
3.1 Tenant agrees to pay to Landlord the Annual Rent in effect from
time to time by paying the Monthly Installment of Rent then in effect on or
before the first day of each full calendar month during the Term, except that
the first month's rent shall be paid upon the execution of this Lease. The
Monthly Installment of Rent in effect at any time shall be one-twelfth of the
Annual Rent in effect at such time. Rent for any period during the Term which
is less than a full month shall be a prorated portion of the Monthly
Installment of Rent based upon a thirty (30) day month. Said rent shall be
paid to Landlord, without deduction or offset and without notice or demand, at
the Landlord's address, as set forth on the Reference Page, or to such other
person or at such other place as Landlord may from time to time designate in
writing.
3.2 Tenant recognizes that late payment of any rent or other sum due
under this Lease will result in administrative expense to Landlord, the extent
of which additional expense is extremely difficult and economically
impractical to ascertain. Tenant therefore agrees that if rent or any other
sum is not paid when due and payable pursuant to this Lease, a late charge
shall be imposed in an amount equal to the greater of: (a) Fifty Dollars
($50.00), or (b) a sum equal to five percent (5%) per month of the unpaid rent
or other payment. The amount of the late charge to be paid by Tenant shall be
reassessed and added to Tenant's obligation for each successive monthly period
until paid. The provisions of this Section 3.2 in no way relieve Tenant of
the obligation to pay rent or other payments on or before the date on which
they are due, nor do the terms of this Section 3.2 in any way affect
Landlord's remedies pursuant to Article 18 in the event said rent or other
payment is unpaid after date due. Notwithstanding the foregoing, Tenant shall
have a grace period of five (5) days after fax and regular mail notice from
Landlord before the late charge is due and payable, provided that such notice
and grace need not be given by Landlord more than three (3) times in any Lease
Year before the late charge is imposed.
-10-
4. TAXES.
4.1 Tenant shall pay as additional rent all Taxes incurred on the
Building during the Term. Taxes shall be defined as real estate taxes and any
other taxes, charges and assessments which are levied with respect to the
Building or the land appurtenant to the Building, or with respect to any
improvements, fixtures and equipment or other property of Landlord, real or
personal, located in the Building and used in connection with the operation of
the Building and said land, any payments to any ground lessor in reimbursement
of tax payments made by such lessor; and all fees, expenses and costs incurred
by Landlord in investigating, protesting, contesting or in any way seeking to
reduce or avoid increase in any assessments, levies or the tax rate pertaining
to any Taxes to be paid by Landlord in any Lease Year. Taxes shall not
include any corporate franchise, or estate, inheritance or net income tax, or
tax imposed upon any transfer by Landlord of its interest in this Lease or the
Building.
4.2 Prior to the actual determination thereof, Landlord shall annually
estimate Tenant's liability for Taxes under Section 4.1, Article 6 and Article
27 for the lease year or portion thereof. Landlord will give Tenant written
notification of the amount of such estimate and Tenant agrees that it will
pay, by increase of its Monthly Installments of Rent due in such lease year,
additional rent in the amount of such estimate. Any such increased rate of
Monthly Installments of Rent pursuant to this Section 4.2 shall remain in
effect until further written notification to Tenant pursuant hereto.
4.3 When the above mentioned actual determination of Tenant's
liability for Taxes is made in any lease year and when Tenant is so notified
in writing, then:
4.3.1 If the total additional rent Tenant actually paid pursuant
to Section 4.2 is less than Tenant's liability for Taxes, then Tenant shall
pay to Landlord as additional rent in one lump sum within thirty (30) days of
receipt of Landlord's bill therefor such deficiency; and
4.3.2 If the total additional rent Tenant actually paid pursuant
to Section 4.2 is more than Tenant's liability for Taxes, then Landlord shall
credit the difference against the then next due payments to be made by Tenant.
4.4 If the Commencement Date is other than January 1 or if the
Termination Date is other than December 31, Tenant's liability for Taxes for
the year in which said Date occurs shall be prorated based upon a three
hundred sixty-five (365) day year.
4.5 Even though the Term has expired and Tenant has vacated the
premises, when the final determination is made of Tenant's liability for Taxes
for the year in which the Lease terminated, Tenant shall pay any difference
due over the estimated Taxes paid; and conversely any overpayment, less any
amounts due Landlord under this Lease, shall be rebated to Tenant.
-11-
4.6 Nothing in this Section 4 is intended to limit the appeal rights
set forth in Section 27.
5. LETTER OF CREDIT.
5.1 Notwithstanding anything set forth above, Tenant shall deliver to
Landlord upon execution of this Lease, and shall maintain in effect throughout
the term of this Lease, an irrevocable, unconditional letter of credit from a
bank reasonably acceptable to Landlord ("Letter of Credit"), in the form
attached hereto as Exhibit C. Each Letter of Credit shall have a term of at
least one (1) year beginning on the date of this Lease, and shall either (i)
automatically renew for the full term of the Lease, or (ii) provide that it
can be drawn in full by Landlord if Landlord does not receive a substitute
Letter of Credit from Tenant at least thirty (30) days prior to the expiration
of the Letter of Credit, Tenant hereby agreeing to such drawing if a
substitute Letter of Credit is not provided to Landlord at least 30 days
before expiration. The Letter of Credit shall be in the amount of $800,000,
which, provided that no Event of Default has occurred hereunder in each case,
may be reduced by Tenant to $500,000 on the third (3rd) anniversary of the
Commencement Date and to $200,000 on the fourth anniversary of the
Commencement Date. Drawing on the Letter of Credit shall not limit Landlord's
other remedies hereunder after an Event of Default but the proceeds shall be
applied to Landlord's damages as set forth in Section 18. If the Letter of
Credit is drawn by Landlord and Tenant shall thereafter cure the default and,
with Landlord's consent, the Lease is reinstated, Tenant shall provide a new
Letter of Credit meeting the requirements set forth above. Tenant may, at any
time or from time to time, provide a substitute Letter of Credit from a new
bank reasonably acceptable to Landlord, whereupon the old Letter of Credit
shall be returned to Tenant.
5.2 The Letter of Credit shall be held by Landlord as security for
Tenant's obligations hereunder, provided that the Letter of Credit shall be
drawn by Landlord subject to the following restrictions: (i) the Letter of
Credit may only be drawn for monetary Events of Default involving an amount
equal to at least one (1) month's Annual Rent; (ii) notwithstanding the
notice and grace periods set forth in Section 17, Landlord shall give Tenant
an additional ten (10) days written notice prior to drawing the Letter of
Credit; and (iii) Landlord shall give ten (10) days written notice to Tenant
prior to drawing the Letter of Credit based upon Tenant's failure to renew the
Letter of Credit within 30 days before its expiration, as set forth above.
6. ALTERATIONS.
6.1 Except for those, if any, specifically provided for in Exhibit B
to this Lease, Tenant shall not make or suffer to be made any alterations,
additions, or improvements, including, but not limited to, the attachment of
any fixtures or equipment in, on, or to the Premises or any part thereof or
the making of any improvements as required by Article 7, without the prior
written consent of Landlord. When applying for such consent, Tenant shall, if
requested by Landlord, furnish complete plans and specifications for such
-12-
alterations, additions and improvements.
6.2 In the event Landlord consents to the making of any such
alteration, addition or improvement by Tenant, the same shall be made using
Landlord's contractor (unless Landlord agrees otherwise, which agreement will
not be unreasonably withheld) at Tenant's sole cost and expense. If, during
the period Landlord is completing the work described on Exhibit B, Tenant
shall employ any Contractor other than Landlord's Contractor and such other
Contractor or any Subcontractor of such other Contractor shall employ any non-
union labor or supplier, Tenant shall be responsible for and hold Landlord
harmless from any and all delays, damages and extra costs suffered by Landlord
as a result of any dispute with any labor unions concerning the wage, hours,
terms or conditions of the employment of any such labor. In any event
Landlord may charge Tenant a reasonable charge to cover its overhead as it
relates to such proposed work.
6.3 All alterations, additions or improvements proposed by Tenant
shall be constructed in accordance with all government laws, ordinances, rules
and regulations and Tenant shall, prior to construction, provide the
additional insurance required under Article 11 in such case, and also all such
assurances to Landlord, including but not limited to, waivers of lien and
surety company performance bonds as Landlord shall require to assure payment
of the costs thereof and to protect Landlord and the Building and appurtenant
land against any loss from any mechanic's, materialmen's or other liens.
6.4 Except for any production, test, engineering and demonstration
equipment installed by Tenant and any other items specifically identified and
agreed to by Landlord and Tenant in writing in advance, all alterations,
additions, and improvements in, on, or to the Premises made or installed by
Tenant, including carpeting, shall be and remain the property of Tenant during
the Term but, excepting furniture, furnishings, movable partitions of less
than full height from floor to ceiling and other trade fixtures, shall become
apart of the realty and belong to Landlord without compensation to Tenant upon
the expiration or sooner termination of the Term, at which time title shall
pass to Landlord under this Lease as by a bill of sale, unless Landlord elects
otherwise. Upon such election by Landlord, Tenant shall upon demand by
Landlord, at Tenant's sole cost and expense, forthwith and with all due
diligence remove any such alterations, additions or improvements which are
designated by Landlord to be removed, and Tenant shall forthwith and with all
due diligence, at its sole cost and expense, repair and restore the Premises
to its condition on the Commencement Date and paint ready, reasonable wear and
tear and damage by fire or other casualty excepted.
6.5 Tenant shall pay in addition to any sums due pursuant to Article
4, any increase in real estate taxes attributable to any such alteration,
addition or improvement for so long, during the Term, as such increase is
ascertainable; at Landlord's election said sums shall be paid in the same way
as sums due under Article 4.
7. REPAIR.
-13-
7.1 Landlord shall maintain, and repair and/or replace all interior
and exterior structural defects in, the exterior walls, the floors, the
structural portions of the roof, the foundation, and the exterior water and
sewer lines (regardless of whether such lines are considered structural or
not) throughout the term hereof and latent defects in the Premises identified
by Tenant within one (1) year following the Commencement Date, and shall
warrant as free of defects in materials or workmanship all work done by
Landlord as described on Exhibit B for a period of one (1) year after the
Commencement Date (collectively, "Landlord Repair Items"). Landlord shall
promptly complete any punch list items identified by Tenant in writing within
thirty (30) days after the Commencement Date. Other than the Landlord Repair
Items, Landlord shall have no obligation to alter, remodel, improve, repair,
decorate or paint the Premises, except as specified in Exhibit B. By taking
possession of the Premises, Tenant accepts them as being in good order,
condition and repair and in the condition in which Landlord is obligated to
deliver them. Landlord shall assign all roof and other continuing warranties
to Tenant as of the first anniversary of the Commencement Date, provided that
Tenant shall reassign the roof warranty to Landlord from time to time as
required in the event of defects in the structure of the roof, and Landlord
shall likewise reassign the warranty to Tenant from time to time as required
for other defects . It is hereby understood and agreed that no
representations respecting the condition of the Premises or the Building have
been made by Landlord to Tenant, except as specifically set forth in this
Lease. Landlord shall not be liable for any failure to make any repairs or to
perform any maintenance unless Landlord shall fail to complete such repairs or
maintenance within thirty (30) days after written notice of the need of such
repairs or maintenance is given to Landlord by Tenant, provided that such 30-
day period shall be extended for a reasonable period of time if Landlord's
repairs or maintenance are delayed by force majeure or if such repairs or
maintenance cannot reasonably be completed within 30 days. If Landlord fails
to complete the repairs or maintenance within such 30-day period (as extended
by the previous sentence), Tenant may complete such repair and Landlord shall
reimburse Tenant for Tenant's out of pocket costs for such repair within ten
(10) days after receipt of an invoice.
7.2 Except for damage resulting from Landlord's negligence or willful
misconduct and the Landlord Repair Items, Tenant shall at its own cost and
expense keep and maintain all non-structural parts of the Premises in good
condition, promptly making all necessary repairs and replacements, ordinary or
extraordinary, with materials and workmanship of the same character, kind and
quality as the original (including, but not limited to, repair and replacement
of all fixtures installed by Tenant, water heaters serving the Premises,
windows, glass and plate glass, doors, exterior stairs, skylights, any special
office entries, interior walls and finish work, floors and floor coverings,
heating and air conditioning systems, electrical systems and fixtures,
sprinkler systems, dock boards, truck doors, dock bumpers, parking lots,
driveways, landscaping, rail tracks serving the Premises, plumbing work
(excluding exterior water and sewer lines) and fixtures, and performance of
regular removal of trash and debris). Tenant as part of its obligations
-14-
hereunder shall keep the Premises in a reasonably clean and sanitary
condition. Tenant will as far as possible keep all such parts of the Premises
from deterioration due to ordinary wear and from falling temporarily out of
repair, and upon termination of this Lease in any way Tenant will yield up the
Premises to Landlord in good condition and repair, loss by fire or other
casualty excepted (but not excepting any damage to glass).
7.3 Except as provided in Article 21, there shall be no abatement of
rent and no liability of Landlord by reason of any injury to or interference
with Tenant's business arising from the making of any repairs, alterations or
improvements in or to any portion of the Building or the Premises or to
fixtures, appurtenances and equipment in the Building. Landlord shall use
reasonable efforts not to interfere with Tenant's operations, and except in
emergencies will give Tenant reasonable notice prior of any entry by Landlord.
7.4 Tenant shall, at its own cost and expense, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance
contractor approved by Landlord for servicing all heating and air conditioning
Systems and equipment serving the Premises (and a copy thereof shall be
furnished to Landlord). The service contract must include all services
suggested by the equipment manufacturer in the operation/maintenance manual
and must become effective within thirty (30) days of the date Tenant takes
possession of the Premises. If Tenant fails to enter into such a service
contract, Landlord may, upon notice to Tenant, enter into such a
maintenance/service contract on behalf of Tenant, or perform the work and in
either case, charge Tenant the cost thereof along with a reasonable amount for
Landlord's overhead.
8. LIENS.
8.1 Landlord and Tenant shall keep the Premises, the Building and
appurtenant land and Tenant's leasehold interest in the Premises free from any
liens arising out of any services, work or materials performed, furnished, or
contracted for by each of them, or obligations incurred by either of them. In
the event that either party shall not, within ten (10) days following the
imposition of any such lien through such party's act or omission, either cause
the same to be released of record or provide the other party with insurance
against the same issued by a major title insurance company or such other
protection against the same as such other party shall accept, such other party
shall have the right to cause the same to be released by such means as it
shall deem proper, including payment of the claim giving rise to such lien.
All such sums paid by either party as a result of the defaulting party's
failure to do so and all expenses incurred by it in connection therewith shall
be payable to it by the other on demand.
9. ASSIGNMENT AND SUBLETTING.
9.1 Tenant shall not have the right to assign or pledge this Lease or
to sublet the whole or any part of the Premises whether voluntarily or by
operation of law, or permit the use or occupancy of the Premises by anyone
-15-
other than Tenant, and shall not make, suffer or permit such assignment,
subleasing or occupancy without the prior written consent of Landlord, which
shall not be unreasonably withheld or delayed, and said restrictions shall be
binding upon any and all assignees of the Lease and subtenants of the
Premises. In the event Tenant desires to sublet, or permit such occupancy of,
the Premises, or any portion thereof, or assign this Lease, Tenant shall give
written notice thereof to Landlord at least ninety (90) days but no more than
one hundred eighty (180) days prior to the proposed commencement date of such
subletting or assignment, which notice shall set forth the name of the
proposed subtenant or assignee, the relevant terms of any sublease or
assignment and copies of financial reports and other relevant financial
reports and other relevant financial information of the proposed subtenant or
assignee. Notwithstanding the foregoing, Tenant shall not require Landlord's
consent to any assignment of this Lease or sublease of the Premises or a
portion thereof to any entity controlled by or under common control with
Tenant, provided that the provisions of Section 9.3 shall apply to any such
assignment or sublease and Tenant shall notify Landlord in advance of such
assignment or sublease.
9.2 If Landlord rejects any proposed assignment or sublease which
shall comply with the requirements of Sections 9.1 and 9.3, Tenant shall have
the right to terminate this Lease by notice to Landlord within fifteen (15)
days after receipt of Landlord's rejection.
9.3 Notwithstanding any assignment or subletting, permitted or
otherwise, Tenant shall at all times remain directly, primarily and fully
responsible and liable for the payment of the rent specified in this Lease and
for compliance with all of its other obligations under the terms, provisions
and covenants of this Lease. Upon the occurrence of an Event of Default, if
the Premises or any part of them are then assigned or sublet, Landlord, in
addition to any other remedies provided in this Lease or provided by law, may,
at its option, collect directly from such assignee or subtenant all rents due
and becoming due to Tenant under such assignment or sublease and apply such
rent against any sums due to Landlord from Tenant under this Lease, and no
such collection shall be construed to constitute a novation or release of
Tenant from the further performance of Tenant's obligations under this Lease.
9.4 In the event that Tenant sells, sublets, assigns or transfers this
Lease Tenant shall pay to Landlord as additional rent an amount equal to one
hundred percent (100%) of any Increased Rent (as defined below) when and as
such Increased Rent is received by Tenant. As used in this Section,
"Increased Rent" shall mean the excess of (i) all rent and other consideration
which Tenant is entitled to receive by reason of any sale, sublease,
assignment or other transfer of this Lease (but excluding any royalties or
other payments arising from the sale of Tenant's business or assets, or
arising in connection with other business conducted by Tenant, other than this
Lease), over (ii) the rent otherwise payable by Tenant under this Lease at
such time. For purposes of the foregoing, any consideration received by
Tenant in form other than cash shall be valued at its fair market value as
determined by Landlord in good faith.
-16-
9.5 Notwithstanding any other provision hereof, Tenant shall have no
right to make (and, Landlord shall have the absolute right to refuse consent
to) any assignment of this Lease or sublease of any portion of the Premises if
at the time of either Tenant's notice of the proposed assignment or sublease
or the proposed commencement date thereof, there shall exist any uncured
default of Tenant or matter which will become a default of Tenant with passage
of time unless cured; or if the proposed assignee or sublessee is an entity:
(a) with which Landlord is already in negotiation as evidenced by the issuance
of a written proposal; (b) is already an occupant of the Building unless
Landlord is unable to provide the amount of space required by such occupant;
(c) is a governmental agency; (d) is incompatible with the character of
occupancy of the Building. Tenant expressly agrees that Landlord shall have
the absolute right to refuse consent to any such assignment or sublease and
that for the purposes of any statutory or other requirement of reasonableness
on the part of Landlord such refusal shall be reasonable.
9.6 Upon any request to assign or sublet, Tenant will pay to Landlord
within ten (10) days after demand the reasonable out of pocket costs of
Landlord, including, without limitation, reasonable attorney's fees, incurred
in investigating and considering any proposed or purported assignment or
pledge of this Lease or sublease of any of the Premises, regardless of whether
Landlord shall consent to, refuse consent, or determine that Landlord's
consent is not required for, such assignment, pledge or sublease. Any
purported sale, assignment, mortgage, transfer of this Lease or subletting
which does not comply with the provisions of this Article 9 shall be void.
9.7 A merger, consolidation, reorganization or sale of all or
substantially all of the assets of Tenant shall not constitute an assignment
or sublease hereunder so long as Tenant is the surviving entity or the
surviving entity affirms this lease in writing and has assets comparable to
Tenant's on the date hereof.
10. INDEMNIFICATION.
10.1 Tenant shall protect, indemnify and hold the Landlord Entities
harmless from and against any and all loss, claims, liability or costs
(including court costs and reasonable attorney's fees) incurred by reason of
(a) any damage to any property (including but not limited to property of any
Landlord Entity) or any injury (including but not limited to death) to any
person occurring in, on or about the Premises to the extent that such injury
or damage shall be caused by or arise from any actual or alleged act, neglect,
fault, or omission by or of Tenant, its agents, servants, employees, invitees,
or visitors to meet any standards imposed by any duty with respect to the
injury or damage; (b) the conduct or management of any work done by the Tenant
in or about the Premises; (c) Tenant's failure to comply with any and all
governmental laws, ordinances and regulations applicable to Tenant's use of
the Premises or its occupancy; or (d) any breach or default on the part of
Tenant in the performance of any covenant or agreement on the part of the
Tenant to be performed pursuant to this Lease. The provisions of this Article
-17-
shall survive the termination of this Lease with respect to any claims or
liability accruing prior to such termination.
10.2 Landlord shall protect, indemnify and hold the Tenant Entities
harmless from and against any and all loss, claims, liability or costs
(including court costs and reasonable attorney's fees) incurred by reason of
(a) any damage to any property (including but not limited to property of any
Tenant Entity) or any injury (including but not limited to death) to any
person occurring in, on or about the Premises to the extent that such injury
or damage shall be caused by or arise from any actual or alleged act, neglect,
fault, or omission by or of Landlord, its agents, servants, employees,
invitees, or visitors to meet any standards imposed by any duty with respect
to the injury or damage; (b) the conduct or management of any work done by the
Landlord in or about the Premises; (c) Landlord's failure to comply with any
and all governmental laws, ordinances and regulations applicable to Landlord's
obligations under this Lease; or (d) any breach or default on the part of
Landlord in the performance of any covenant or agreement on the part of the
Landlord to be performed pursuant to this Lease (including, without
limitation, the work to be done by Landlord under Section 2.1). The
provisions of this Article shall survive the termination of this Lease with
respect to any claims or liability accruing prior to such termination.
11. INSURANCE.
11.1 Tenant shall keep in force throughout the Term: (a) a Commercial
General Liability insurance policy or policies to protect the Landlord
Entities against any liability to the public or to any invitee of Tenant or a
Landlord Entity incidental to the use of or resulting from any accident
occurring in or upon the Premises with a limit of not less than $1,000,000.00
per occurrence and not less than $2,000,000.00 in the annual aggregate, or
such larger amount as Landlord may prudently require from time to time,
covering bodily injury and property damage liability and $1,000,000.00
products/completed operations aggregate; (b) Business Auto Liability covering
owned, non-owned and hired vehicles with a limit of not less than $1,000,000.00
per accident; (c) insurance protecting against liability under Worker's
Compensation Laws with limits at least as required by statute; (d) Employers
Liability with limits of $500,000 each accident, $500,000 disease policy
limit, $500,000 disease--each employee; (e) All Risk or Special Form coverage
protecting Tenant against loss of or damage to Tenant's alterations,
additions, improvements, carpeting, floor coverings, panelings, decorations,
fixtures, inventory and other business personal property situated in or about
the Premises to the full replacement value of the property so insured; and,
(f) Business Interruption Insurance with limit of liability representing loss
of at least approximately six months of income.
11.2 Each of the aforesaid policies shall (a) be provided at Tenant's
expense; (b) name the Landlord and the building management company, if any, as
additional insureds; (c) be issued by an insurance company with a minimum
Best's rating of "A: VII" during the Term; and (d) provide that said insurance
shall not be cancelled unless thirty (30) days prior written notice (ten days
-18-
for non-payment of premium) shall have been given to Landlord; and said policy
or policies or certificates thereof shall be delivered to Landlord by Tenant
upon the Commencement Date and at least thirty (30) days prior to each renewal
of said insurance.
11.3 Whenever Tenant shall undertake any alterations, additions or
improvementS in, to or about the Premises ("Work") the aforesaid insurance
protection must extend to and include injuries to persons and damage to
property arising in connection with such Work, without limitation including
liability under any applicable structural work act, and such other insurance
as Landlord shall reasonably require; and the policies of or certificates
evidencing such insurance must be delivered to Landlord prior to the
commencement of any such Work.
12. WAIVER OF SUBROGATION.
12.1 So long as their respective insurers so permit, Tenant and
Landlord hereby mutually waive their respective rights of recovery against
each other for any loss insured by fire, extended coverage, All Risks or other
insurance now or hereafter existing for the benefit of the respective party
but only to the extent of the net insurance proceeds payable under such
policies. Each party shall obtain any special endorsements required by their
insurer to evidence compliance with the aforementioned waiver.
13. SERVICES AND UTILITIES.
13.1 Tenant shall pay for all water, gas, heat, light, power,
telephone, sewer, sprinkler system charges and other utilities and services
used on or from the Premises, including without limitation,the cost of any
central station signaling system installed in the Premises together with any
taxes, penalties, and surcharges or the like pertaining thereto and any
maintenance charges for utilities. Any such charges paid by Landlord and
assessed against Tenant shall be payable to Landlord within fifteen (15)
calendar days after written demand and shall be additional rent hereunder.
Landlord shall in no event be liable for any interruption or failure of
utility services on or to the Premises unless caused by Landlord or its agents
or employees (other than temporary interruptions for maintenance, repair or
replacement).
14. HOLDING OVER.
14.1 Tenant shall pay Landlord for each day Tenant, without Landlord's
prior written approval, retains possession of the Premises or part of them
after termination of this Lease by lapse of time or otherwise at the rate
("Holdover Rate") which shall be one hundred fifty percent (150%) of the
amount of the Annual Rent for the last period prior to the date of such
termination plus all Rent Adjustments under Article 4, prorated on a daily
basis, and also pay all damages sustained by Landlord by reason of such
retention. If Landlord gives notice to Tenant of Landlord's election to that
effect, such holding over shall constitute renewal of this Lease for a period
-19-
from month to month at the Holdover Rate, but if the Landlord does not so
elect, no such renewal shall result notwithstanding acceptance by Landlord of
any sums due hereunder after such termination; and instead, a tenancy at
sufferance at the Holdover Rate shall be deemed to have been created. In any
event, no provision of this Article 14 shall be deemed to waive Landlord's
right of reentry or any other right under this Lease or at law.
15. SUBORDINATION.
15.1 Without the necessity of any additional document being executed by
Tenant for the purpose of effecting a subordination, this Lease shall be
subject and subordinate at all times to ground or underlying leases and to the
lien of any mortgages or deeds of trust now or hereafter placed on, against or
affecting the Building, Landlord's interest or estate in the Building, or any
ground or underlying lease; provided, however, that if the lessor, mortgagee,
trustee, or holder of any such mortgage or deed of trust elects to have
Tenant's interest in this Lease be superior to any such instrument, then, by
notice to Tenant, this Lease shall be deemed superior, whether this Lease was
executed before or after said instrument. Notwithstanding the foregoing,
Tenant covenants and agrees to execute and deliver upon demand such further
instruments evidencing such subordination or superiority of this Lease as may
be required by Landlord. Notwithstanding the foregoing, this Lease shall only
be subordinated to a mortgage if the mortgagee executes a nondisturbance and
attornment agreement reasonably acceptable to Tenant.
16. REENTRY BY LANDLORD.
16.1 Landlord reserves and shall at all reasonable times have the right
with reasonable notice to re-enter the Premises to inspect the same, to show
said Premises to prospective purchasers, mortgagees or tenants, and to alter,
improve or repair the Premises and any portion of the Building, without
abatement of rent, and may for that purpose erect, use and maintain
scaffolding, pipes, conduits and other necessary structures and open any wall,
ceiling or floor in and through the Building and Premises where reasonably
required by the character of the work to be performed, provided entrance to
the Premises shall not be blocked thereby, and further provided that the
business of Tenant shall not be interfered with unreasonably.
16.2 Tenant hereby waives any claim for damages for any injury or
inconvenience to or interference with Tenant's business, any loss of occupancy
or quiet enjoyment of the Premises, and any other loss occasioned by any
action of Landlord authorized by this Article 16. Tenant agrees to reimburse
Landlord, on demand, as additional rent, for any expenses which Landlord may
incur in thus effecting compliance with Tenant's obligations under this Lease.
16.3 For each of the aforesaid purposes, Landlord shall have the right
to use any and all means which Landlord may deem proper to open said doors in
an emergency to obtain entry to any portion of the Premises. Landlord is
authorized to gain access by such means as Landlord shall elect and the cost
of repairing any damage occurring in doing so shall be borne by Tenant and
-20-
paid to Landlord as additional rent upon demand.
17. DEFAULT.
17.1 Except as otherwise provided in Article 19, the following events
shall be deemed to be Events of Default under this Lease:
17.1.1 Tenant shall fail to pay when due any sum of money becoming
due to be paid to Landlord under this Lease, whether such sum be any installment
of the rent reserved by this Lease, any other amount treated as additional rent
under this Lease, or any other payment or reimbursement to Landlord required by
this Lease, whether or not treated as additional rent under this Lease, and such
failure shall continue for a period of ten (10) days after written notice that
such payment was not made when due, but Landlord shall not be obligated to give
any such notice more than three (3) times in any rolling twelve-month period,
and thereafter it shall be an Event of Default if Tenant fails to pay an amount
due hereunder within ten (10) days after such payment is due.
17.1.2 Tenant shall fail to comply with any term, provision or
covenant of this Lease which is not provided for in another Section of this
Article and shall not cure such failure within thirty (30) days (forthwith, if
the failure involves a hazardous condition) after written notice of such failure
to Tenant, provided that if such cure cannot reasonably be completed within
thirty (30) days, Tenant shall have reasonable additional time to complete such
cure (not to exceed 120 days in total) so long as Tenant initiates the cure
within the 30-day period and pursues the cure diligently thereafter.
17.1.3 Tenant shall fail to vacate the Premises within thirty (30)
days after termination of this Lease, by lapse of time or otherwise, or upon
termination of Tenant's right to possession only.
17.1.4 Tenant shall become insolvent, admit in writing its
inability to pay its debts generally as they become due, file a petition in
bankruptcy or a petition to take advantage of any insolvency statute, make an
assignment for the benefit of creditors, make a transfer in fraud of creditors,
apply for or consent to the appointment of a receiver of itself or of the whole
or any substantial part of its property, or file a petition or answer seeking
reorganization or arrangement under the federal bankruptcy laws, as now in
effect or hereafter amended, or any other applicable law or statute of the
United States or any state thereof.
17.1.5 A court of competent jurisdiction shall enter an order,
judgment or decree adjudicating Tenant bankrupt, or appointing a receiver of
Tenant, or of the whole or any substantial part of its property, without the
consent of Tenant, or approving a petition filed against Tenant seeking
reorganization or arrangement of Tenant under the bankruptcy laws of the United
States, as now in effect or hereafter amended, or any state thereof, and such
order, judgment or decree shall not be vacated or set aside
-21-
or stayed within sixty (60) days from the date of entry thereof.
18. REMEDIES.
18.1 Upon the occurrence of an Event of Default hereunder, Landlord may
elect either of the following remedies by notice to Tenant:
18.1.1 Acceleration of Rent. Collect a sum equal to (i) the
entire Annual Rent plus all additional rent payable hereunder for the balance
of the term, (ii) discounted to present value at the Wall Street Journal prime
rate in effect as of the date of the acceleration, shall immediately become
due and payable as if by the terms of this Lease such sum was payable in
advance, and Landlord may immediately proceed to collect or bring action for
such rent and other sums, as being in arrears, or may file a proof of claim in
any bankruptcy or insolvency proceedings for such rent and other sums, or
Landlord may institute any other proceedings to enforce payment thereof. For
the purposes of this Section, the phrase "Annual Rent plus all additional rent
payable hereunder for the balance of the term" shall mean the sum of the
aggregate of the Annual Rent reserved for the balance of the term of this
Lease and the annual average of the additional rent payable in the Lease Year
immediately preceding the Event of Default, multiplied by the number of years
and fraction of a year then constituting the unexpired term of this Lease.
Upon receipt of all amounts due hereunder, the Lease shall be terminated.
Landlord shall thereafter use commercially reasonable efforts to relet the
Premises or any part thereof for such term or terms (which may be for a term
extending beyond the term of this Lease) and at such rental or rentals and
upon such other terms and conditions as Landlord in its sole discretion may
deem advisable; Landlord may make such alterations and repairs as Landlord
deems necessary in order to relet the Premises; upon each such reletting all
rentals received by Landlord from such reletting shall be applied first to the
payment of any costs and expenses of such reletting, including brokerage fees,
reasonable attorneys' fees and costs of such alterations and repairs, and the
remainder returned to Tenant until the earlier to occur of (i) Tenant
receiving back an amount equal to the amount collected by Landlord pursuant to
the first sentence of this subsection, or (ii) expiration of the then-current
term of this lease; or
18.1.2 Right to Relet; Damages for Breach. Reenter the Premises and
use commercially reasonable efforts to relet the Premises or any part thereof
for such term or terms (which may be for a term extending beyond the term of
this Lease) and at such rental or rentals and upon such other terms and
conditions as Landlord in its sole discretion may deem advisable; Landlord may
make such alterations and repairs as Landlord deems necessary in order to relet
the Premises; upon each such reletting all rentals received by Landlord from
such reletting shall be applied, first, to the payment of any costs and expenses
of such reletting, including brokerage fees, reasonable attorneys' fees and
costs of such alterations and repairs; second, to the payment of any additional
rent due hereunder from Tenant to Landlord; third, to the payment of Annual Rent
due and unpaid hereunder; and the residue, if any, shall be held by Landlord and
applied in payment of future additional
-22-
rent and Annual Rent as the same may become due and payable hereunder. If
such rents received from such reletting during any month are less than that to
be paid during that month by Tenant hereunder, Tenant shall pay any such
deficiency to Landlord each month upon demand. Such deficiency shall be
calculated and paid monthly. No such reentry or taking possession of the
Premises by Landlord shall be construed as an election on its part to
terminate this Lease unless a written notice of such intention be given to
Tenant or unless the termination thereof be decreed by a court of competent
jurisdiction. Notwithstanding any such reletting without termination,
Landlord may at any time thereafter elect to terminate this Lease for such
previous breach.
18.1.3 Letter of Credit. Landlord may draw upon the entire balance
of the Letter of Credit, subject to the provisions of Section 5.2, following any
monetary Event of Default, and shall apply the proceeds thereof as follows: (i)
if Landlord elects its remedies as set forth in Section 18.1.1, the proceeds of
the Letter of Credit shall be applied against the lump sum amount due to
Landlord thereunder, and the remainder, if any, shall be returned to Tenant; or
(ii) if Landlord elects its remedies as set forth in Section 18.1.2, Landlord
shall hold the proceeds of the Letter of Credit in a separate interest-bearing
account and shall draw on such account monthly to pay the amount due to Landlord
under Section 18.1.2 for such month, and the remainder, if any, shall be
returned to Tenant upon expiration of the Term of this Lease.
18.2 Upon any termination of this Lease, whether by lapse of time or
otherwise, or upon any termination of Tenant's right to possession without
termination of the Lease, Tenant shall, within thirty (30) days following such
termination, surrender possession and vacate the Premises, and deliver
possession thereof to Landlord, and Tenant hereby grants to Landlord full and
free license to enter into and upon the Premises in such event and, after such
30-day period has expired, to repossess Landlord of the Premises as of
Landlord's former estate and to expel or remove Tenant and any others who may
be occupying or be within the Premises and to remove Tenant's signs and other
evidence of tenancy and all other property of Tenant therefrom without being
deemed in any manner guilty of trespass, eviction or forcible entry or
detainer, and without incurring any liability for any damage resulting
therefrom, Tenant waiving any right to claim damages for such reentry and
expulsion, and without relinquishing Landlord's right to rent or any other
right given to Landlord under this Lease or by operation of law.
18.3 No act or thing done by Landlord or its agents during the Term
shall be deemed a termination of this Lease or an acceptance of the surrender
of the Premises, and no agreement to terminate this Lease or accept a
surrender of said Premises shall be valid, unless in writing signed by
Landlord. No waiver by Landlord of any violation or breach of any of the
terms, provisions and covenants contained in this Lease shall be deemed or
construed to constitute a waiver of any other violation or breach of any of
the terms, provisions and covenants contained in this Lease. Landlord's
acceptance of the payment of rental or other payments after the occurrence of
-23-
an Event of Default shall not be construed as a waiver of such Default, unless
Landlord so notifies Tenant in writing. Forbearance by Landlord in enforcing
one or more of the remedies provided in this Lease upon an Event of Default
shall not be deemed or construed to constitute a waiver of such Default or of
Landlord's right to enforce any such remedies with respect to such Default or
any subsequent Default.
18.4 Any and all property which may be removed from the Premises by
Landlord pursuant to the authority of this Lease or of law, to which Tenant is
or may be entitled, may be handled, removed and/or stored, as the case may be,
by or at the direction of Landlord but at the risk,cost and expense of Tenant,
and Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges against such
property so long as the same shall be in Landlord's possession or under
Landlord's control. Any such property of Tenant not retaken by Tenant from
storage within thirty (30) days after removal from the Premises shall, at
Landlord's option, be deemed conveyed by Tenant to Landlord under this Lease
as by a bill of sale without further payment or credit by Landlord to Tenant.
19. TENANT'S BANKRUPTCY OR INSOLVENCY.
19.1 Subject to the cure period set forth in Section 17.1.5, if at any
time and for so long as Tenant shall be subjected to the provisions of the
United States Bankruptcy Code or other law of the United States or any state
thereof for the protection of debtors as in effect at such time (each a
"Debtor's Law"):
19.1.1 Tenant, Tenant as debtor-in-possession, and any trustee or
receiver of Tenant's assets (each a "Tenant's Representative") shall have no
greater right to assume or assign this Lease or any interest in this Lease, or
to sublease any of the Premises than accorded to Tenant in Article 9, except to
the extent Landlord shall be required to permit such assumption, assignment or
sublease by the provisions of such Debtor's Law. Without limitation of the
generality of the foregoing, any right of any Tenant's Representative to assume
or assign this Lease or to sublease any of the Premises shall be subject to the
conditions that:
19.1.1.1 Such Debtor's Law shall provide to Tenant's
Representative a right of assumption of this Lease which Tenant's
Representative shall have timely exercised and Tenant's Representative shall
have fully cured any default of Tenant under this Lease.
19.1.1.2 Tenant's Representative or the proposed assignee,
as the case shall be, shall have deposited with Landlord as security for the
timely payment of rent an amount equal to the larger of: (a) three months'
Rent and other monetary charges accruing under this Lease; and (b) any sum
specified in Articles; and shall have provided Landlord with adequate other
assurance of the future performance of the obligations of the Tenant under
this Lease. Without limitation, such assurances shall include, at least, in
-24-
the case of assumption of this Lease, demonstration to the satisfaction of the
Landlord that Tenant's Representative has and will continue to have sufficient
unencumbered assets after the payment of all secured obligations and
administrative expenses to assure Landlord that Tenant's Representative will
have sufficient funds to fulfill the obligations of Tenant under this Lease;
and, in the case of assignment, submission of current financial statements of
the proposed assignee, audited by an independent certified public accountant
reasonably acceptable to Landlord and showing a net worth and working capital
in amounts determined by Landlord to be sufficient to assure the future
performance by such assignee of all of the Tenant's obligations under this
Lease.
19.1.1.3 The assumption or any contemplated assignment of
this Lease or subleasing any part of the Premises, as shall be the case, will
not breach any provision in any other lease, mortgage, financing agreement or
other agreement by which Landlord is bound.
19.1.1.4 Landlord shall have, or would have had absent the
Debtor's Law, no right under Article 9 to refuse consent to the proposed
assignment or sublease by reason of the identity or nature of the proposed
assignee or sublessee or the proposed use of the Premises concerned.
20. QUIET ENJOYMENT.
20. Landlord represents and warrants that it has full right and
authority to enter into this Lease and that Tenant, except during the
continuance of an Event of Default, shall peaceably and quietly have, hold and
enjoy the Premises for the Term without hindrance or molestation from Landlord
or third parties, subject to the terms and provisions of this Lease.
21. DAMAGE BY FIRE, ETC.
21.1 Landlord shall maintain all insurance policies deemed by Landlord
to be reasonably necessary or desirable and relating in any manner to the
protection, preservation or operation of the Premises, including but not
limited to, standard fire and extended coverage insurance covering the
Premises in an amount not less than ninety percent (90%) of the replacement
cost thereof insuring against the perils of fire and lightning and including
extended coverage or, at Landlord's option, all risk coverage and, if Landlord
so elects, earthquake, flood and wind coverages and Tenant shall pay, as
additional rent, the cost of such policies upon demand by Landlord. Such
insurance shall be for the sole benefit of Landlord and under its sole
control. Tenant shall not take out separate insurance concurrent inform or
contributing in the event of loss with that required to be maintained by
Landlord hereunder unless Landlord is included as a loss payee thereon.
Tenant shall immediately notify Landlord whenever any such separate insurance
is taken out and shall promptly deliver to Landlord the policy or policies of
such insurance.
21.2 In the event the Premises or the Building are damaged by fire or
other cause and in Landlord's reasonable estimation such damage can be
-25-
materially restored within one hundred twenty (120) days, Landlord shall
forthwith repair the same with diligence and this Lease shall remain in full
force and effect, except that Tenant shall be entitled to a proportionate
abatement in rent from the date of such damage. Such abatement of rent shall
be made pro rata in accordance with the extent to which the damage and the
making of such repairs shall interfere with the use and occupancy by Tenant of
the Premises from time to time. Within thirty (30) days from the date of such
damage, Landlord shall notify Tenant, in writing, of Landlord's reasonable
estimation of the length of time within which material restoration can be
made, and Landlord's determination shall be binding on Tenant. For purposes
of this Lease, the Building or Premises shall be deemed "materially restored"
if they are in such condition as would not prevent or materially interfere
with Tenant's use of the Premises for the purpose for which it was being used
immediately before such damage.
21.3 If such repairs cannot, in Landlord's reasonable estimation,be
made within one hundred twenty (120) days, Landlord and Tenant shall each have
the option of giving the other, at any time within thirty (30) days after
receipt of notice of Landlord's estimated time for repair, notice terminating
this Lease as of the date of such damage. In the event of the giving of such
notice, this Lease shall expire and all interest of the Tenant in the Premises
shall terminate as of the date of such damage as if such date had been
originally fixed in this Lease for the expiration of the Term. In the event
that neither Landlord nor Tenant exercises its option to terminate this Lease,
then Landlord shall repair or restore such damage with diligence, this Lease
continuing in full force and effect, and the rent hereunder shall be
proportionately abated as provided in Section 21.2. Landlord shall restore
the Premises to the same standard of quality as required to be completed under
Section 2.1.
21.4 Landlord shall not be required to repair or replace any damage or
loss by or from fire or other cause to any panelings, decorations, partitions,
additions, railings, ceilings, floor coverings, office fixtures or any other
property or improvements installed on the Premises or belonging to Tenant.
Any insurance which may be carried by Landlord or Tenant against loss or
damage to the Building or Premises shall be for the sole benefit of the party
carrying such insurance and under its sole control.
21.5 In the event that Landlord should fail to complete such repairs
and material restoration within the one hundred twenty (120) day period as
extended by this Section 21.5, Tenant may at its option and as its sole remedy
terminate this Lease by delivering written notice to Landlord, within fifteen
(15) days after the expiration of said period of time, whereupon the Lease
shall end on the date of such notice or such later date fixed in such notice
as if the date of such notice was the date originally fixed in this Lease for
the expiration of the Term; provided, however, that if construction is delayed
because of changes, deletions or additions in construction requested by
Tenant, strikes, lockouts, casualties, Acts of God, war, material or labor
shortages, government regulation or control or other causes beyond the
reasonable control of Landlord, the period for restoration, repair or
-26-
rebuilding shall be extended for the amount of time Landlord is so delayed.
21.6 Notwithstanding anything to the contrary contained in this
Article: (a) Landlord shall not have any obligation whatsoever to repair,
reconstruct, or restore the Premises when the damages resulting from any
casualty covered by the provisions of this Article 21 occur during the last
twelve (12) months of the Term or any extension thereof, but if Landlord
determines not to repair such damages Landlord shall notify Tenant and if such
damages shall render any material portion of the Premises untenantable Tenant
shall have the right to terminate this Lease by notice to Landlord within
fifteen (15) days after receipt of Landlord's notice; and (b) in the event the
holder of any indebtedness secured by a mortgage or deed of trust covering the
Premises or Building requires that any insurance proceeds be applied to such
indebtedness, then Landlord shall have the right to terminate this Lease by
delivering written notice of termination to Tenant within fifteen (15) days
after such requirement is made by any such holder, whereupon this Lease shall
end on the date of such damage as if the date of such damage were the date
originally fixed in this Lease for the expiration of the Term. Tenant shall
likewise have the option to terminate this Lease if the Premises is destroyed
during the last twelve (12) months of the Term.
21.7 In the event of any damage or destruction to the Building or
Premises by any peril covered by the provisions of this Article 21, it shall
be Tenant's responsibility to properly secure the Premises and upon notice
from Landlord to remove forthwith,at its sole cost and expense, such portion
of all of the property belonging to Tenant or its licensees from such portion
or all of the Building or Premises as Landlord shall request.
22. EMINENT DOMAIN.
22.1 If all or any substantial part of the Premises shall be taken or
appropriated by any public or quasi-public authority under the power of
eminent domain, or conveyance in lieu of such appropriation, either party to
this Lease shall have the right, at its option, of giving the other, at any
time within thirty (30) days after such taking, notice terminating this Lease,
except that Tenant may only terminate this Lease by reason of taking or
appropriation, if such taking or appropriation shall be so substantial as to
materially interfere with Tenant's use and occupancy of the Premises. If
neither party to this Lease shall so elect to terminate this Lease, the rental
thereafter to be paid shall be adjusted on a fair and equitable basis under
the circumstances. Landlord shall be entitled to any and all income, rent,
award, or any interest whatsoever in or upon any such sum, which may be paid
or made in connection with any such public or quasi-public use or purpose, and
Tenant hereby assigns to Landlord any interest it may have in or claim to all
or any part of such sums,other than any separate award which may be made with
respect to Tenant's trade fixtures and moving expenses; Tenant shall make no
claim for the value of any unexpired Term. Landlord specifically disclaims
any interest in the value of leasehold improvements made by Tenant at Tenant's
cost.
-27-
23. SALE BY LANDLORD.
23.1 In event of a sale or conveyance by Landlord of the Building, the
same shall operate to release Landlord from any future liability upon any of
the covenants or conditions, expressed or implied, contained in this Lease in
favor of Tenant (effective upon the purchaser assuming Landlord's obligation
hereunder in writing), and in such event Tenant agrees to look solely to the
responsibility of the successor in interest of Landlord in and to this Lease.
Except as set forth in this Article 23, this Lease shall not be affected by
any such sale and Tenant agrees to attorn to the purchaser or assignee. If
any security has been given by Tenant to secure the faithful performance of
any of the covenants of this Lease, Landlord may transfer or deliver said
security, as such, to Landlord's successor in interest and thereupon Landlord
shall be discharged from any further liability with regard to said security.
24. ESTOPPEL CERTIFICATES.
24.1 Within ten (10) days following any written request which Landlord
may make from time to time, Tenant shall execute and deliver to Landlord or
mortgagee or prospective mortgagee a sworn statement certifying: (a) the date
of commencement of this Lease; (b) the fact (if true) that this Lease is
unmodified and in full force and effect (or, if there have been modifications
to this Lease, that this lease is in full force and effect, as modified, and
stating the date and nature of such modifications); (c) the date to which the
rent and other sums payable under this Lease have been paid; (d) the fact that
there are no current defaults under this Lease by either Landlord or Tenant
except as specified in Tenant's statement; and (e) such other matters as may
be reasonably requested by Landlord. Landlord and Tenant intend that any
statement delivered pursuant to this Article 24 may be relied upon by any
mortgagee, beneficiary or purchaser and Tenant shall be liable for all loss,
cost or expense resulting from the failure of any sale or funding of any loan
caused by any intentional material misstatement contained in such estoppel
certificate. Tenant irrevocably agrees that if Tenant fails to execute and
deliver such certificate within such ten (10) day period Landlord or
Landlord's beneficiary or agent may execute and deliver such certificate on
Tenant's behalf, and that such certificate shall be fully binding on Tenant.
25. SURRENDER OF PREMISES.
25.1 Tenant shall, at least thirty (30) days before the last day of the
Term, arrange to meet Landlord for a joint inspection of the Premises. In the
event of Tenant's failure to arrange such joint inspection to be held prior to
vacating the Premises, Landlord's inspection at or after Tenant's vacating the
Premises shall be conclusively deemed correct for purposes of determining
Tenant's responsibility for repairs and restoration.
25.2 At the end of the Term or any renewal of the Term or other sooner
termination of this Lease, Tenant will peaceably deliver up to Landlord
possession of the Premises.
-28-
25.3 All obligations of Tenant under this Lease not fully performed as
of the expiration or earlier termination of the Term shall survive the
expiration or earlier termination of the Term. Upon the expiration or earlier
termination of the Term, Tenant shall pay to Landlord the actual amount
necessary to repair and restore the Premises as provided in this Lease and/or
to discharge Tenant's obligation for unpaid amounts due or to become due to
Landlord. All such amounts shall be used and held by Landlord for payment of
such obligations of Tenant, or with any excess to be returned to Tenant after
all such obligations have been determined and satisfied. Any otherwise unused
Security Deposit shall be credited against the amount payable by Tenant under
this Lease.
26. NOTICES.
26.1 Any notice or document required or permitted to be delivered under
this Lease shall be addressed to the intended recipient, and shall be hand
delivered or sent by a reputable overnight delivery service, and shall be
deemed to be given when received, if hand delivered, or the day after
depositing with a reputable overnight delivery service, if to Landlord, to the
address set forth on the Reference Page, or at such other address as it has
then last specified by written notice delivered in accordance with this
Article 26, or if to Tenant at the address set forth on the Reference Page
(attention: general counsel), whether or not actually accepted or received by
the addressee. Notices to Landlord shall also be given to Gregory Kleiber,
Esq., Fox, Rothschild, O'Brien & Frankel, 2000 Market Street, 10th Floor,
Philadelphia PA 19103, and notices to Tenant shall also be given to Robert D.
Lane, Jr., Esq., Pepper, Hamilton & Scheetz, 3000 Two Logan Square, 18th and
Arch Streets, Philadelphia PA 19103.
27. TAXES PAYABLE BY TENANT.
27.1 In addition to rent and other charges to be paid by Tenant under
this Lease, Tenant shall reimburse to Landlord, upon demand, any and all taxes
payable by Landlord (other than net income taxes) whether or not now customary
or within the contemplation of the parties to this Lease: (a) upon, allocable
to, or measured by or on the gross or net rent payable under this Lease,
including without limitation any gross income tax or excise tax levied by the
State, any political subdivision thereof, or the Federal Government with
respect to the receipt of such rent; (b) upon or with respect to the
possession, leasing, operation, management, maintenance, alteration, repair,
use or occupancy of the Premises or any portion thereof, including any sales,
use or service tax imposed as a result thereof; (c) upon or measured by the
Tenant's gross receipts or payroll or the value of Tenant's equipment,
furniture, fixtures and other personal property of Tenant or leasehold
improvements, alterations or additions located in the Premises; or (d) upon
this transaction or any document to which Tenant is a party creating or
transferring any interest of Tenant in this Lease or the Premises. In
addition to the foregoing, Tenant agrees to pay, before delinquency, any and
all taxes levied or assessed against Tenant and which become payable during
the term hereof upon Tenant's equipment, furniture,fixtures and other personal
-29-
property of Tenant located in the Premises. Tenant shall have the right to
appeal any tax assessment provided that such appeal stays any enforcement
action. Landlord will reasonably cooperate with Tenant in any such appeal but
without incurring any expense.
28. DEFINED TERMS AND HEADINGS.
28.1 The Article headings shown in this Lease are for convenience of
reference and shall in no way define, increase, limit or describe the scope or
intent of any provision of this Lease. Any indemnification or insurance of
Landlord shall apply to and inure to the benefit of all the following
"Landlord Entities", being Landlord, Landlord's mortgagee(s) from time to
time, and the trustees, boards of directors, officers, affiliates, partners,
beneficiaries, stockholders, employees and agents of each of them. Any
indemnification or insurance of Tenant shall apply to and inure to the benefit
of all the following "Tenant Entities", being Tenant, its subsidiaries and the
trustees, boards of directors, officers, affiliates, partners, stockholders,
employees and agents of each of them. Any option granted to Landlord shall
also include or be exercisable by Landlord's trustee, beneficiary, agents and
employees, as the case may be. In any case where this Lease is signed by more
than one person, the obligations under this Lease shall be joint and several.
The terms "Tenant" and "Landlord" or any pronoun used in place thereof shall
indicate and include the masculine or feminine, the singular or plural number,
individuals, firms or corporations, and each of their respective successors,
executors, administrators and permitted assigns, according to the context
hereof. The term "rentable area" shall mean the rentable area of the Premises
or the Building as calculated by the Landlord on the basis of the plans and
specifications of the Building including a proportionate share of any common
areas. Tenant hereby accepts and agrees to be bound by the figures for the
rentable space footage of the Premises and Tenant's Proportionate Share shown
on the Reference Page.
29. TENANT'S AUTHORITY.
29.1 Tenant represents and warrants that Tenant has been and is
qualified to do business in the state in which the Building is located, that
the corporation has full right and authority to enter into this Lease, and
that all persons signing on behalf of the corporation were authorized to do so
by appropriate corporate actions. If Tenant signs as a partnership, trust or
other legal entity, each of the persons executing this Lease on behalf of
Tenant represents and warrants that Tenant has complied with all applicable
laws, rules and governmental regulations relative to its right to do business
in the state and that such entity on behalf of the Tenant was authorized to do
so by any and all appropriate partnership, trust or other actions. Tenant
agrees to furnish promptly upon request a corporate resolution, proof of due
authorization by partners, or other appropriate documentation evidencing the
due authorization of Tenant to enter into this Lease.
-30-
30. COMMISSIONS.
30.1 Each of the parties represents and warrants to the other that it
has not dealt with any broker or finder in connection with this Lease, except
as described on the Reference Page. Landlord shall pay any commissions due to
the brokers identified on the Reference Page.
31. TIME AND APPLICABLE LAW.
31.1 Time is of the essence of this Lease and all of its provisions.
This Lease shall in all respects be governed by the laws of the state in which
the Building is located.
32. SUCCESSORS AND ASSIGNS.
32.1 Subject to the provisions of Article 9, the terms, covenants and
conditions contained in this Lease shall be binding upon and inure to the
benefit of the heirs, successors, executors, administrators and assigns of the
parties to this Lease.
33. ENTIRE AGREEMENT.
33.1 This Lease, together with its exhibits, contains all agreements of
the parties to this Lease and supersedes any previous negotiations. There
have been no representations made by the Landlord or understandings made
between the parties other than those set forth in this Lease and its exhibits.
This Lease may not be modified except by a written instrument duly executed by
the parties to this Lease.
34. EXAMINATION NOT OPTION.
34.1 Submission of this Lease shall not be deemed to be a reservation
of the Premises. Landlord shall not be bound by this Lease until it has
received a copy of this Lease duly executed by Tenant and has delivered to
Tenant a copy of this Lease duly executed by Landlord, and until such delivery
Landlord reserves the right to exhibit and lease the Premises to other
prospective tenants. Notwithstanding anything contained in this Lease to the
contrary, Landlord may withhold delivery of possession of the Premises from
Tenant until such time as Tenant has paid to Landlord any security deposit
required by Articles, the first month's rent as set forth in Article 3 and any
sum owed pursuant to this Lease.
35. RECORDATION.
35.1 Tenant shall not record or register this Lease or a short form
memorandum hereof without the prior written consent of Landlord, and then
shall pay all charges and taxes incident such recording or registration.
-31-
36. LIMITATION OF LIABILITY.
36.1 The obligations of Landlord under this Lease are not intended to
and shall not be personally binding on, nor shall any resort be had to the
private properties of, any of its partners or any stockholders, employees, or
agents of Landlord's partners, Landlord's liability being limited to its
interest in the Premises.
36.2 In no event shall either Tenant or Landlord be responsible or
liable to the other for consequential or incidental damages.
37. SIGNS.
37.1 Tenant may install signs on the Premises, at Tenant's sole
expense, provided that such signs comply with all applicable ordinances and
park covenants. All signs shall be removed by Tenant, and all damage to the
Building repaired, upon the termination or expiration of this Lease.
38. LANDLORD'S REPRESENTATIONS AND CONTINGENCIES.
38.1 Landlord represents and warrants to Tenant as follows:
38.1.1 Subject to Section 38.2 below, Landlord has full authority
to execute this Lease and to fulfill its obligations hereunder.
38.1.2 Landlord is not a party to any suit or action involving the
Premises or Tenant's proposed use thereof.
38.1.3 Landlord has no actual knowledge of any Hazardous Materials
on, in or under the Premises except as set forth in the Phase I report prepared
by Keating Environmental Management, Inc.
38.1.4 Landlord has received no notices alleging any violations of
any applicable law, ordinance or regulation by the Premises.
38.2 Landlord's obligations hereunder are contingent upon Landlord
acquiring fee simple title to the Premises and arranging financing for the
improvements described in Section 2.1, and giving Tenant evidence thereof, no
later than August 31, 1995. If Landlord does not complete closing for the
acquisition of the Premises and financing of the improvements by August 31,
1995, either Landlord or Tenant may terminate this Lease by notice to Seller
given by the close of business on September 1. If Landlord's offer to
purchase the Premises is finally rejected prior to August 31, Landlord shall
so advise Tenant and this Lease shall terminate thereupon.
39. EXPANSION
39.1 In the event that Landlord decides to expand or make additions to
the Building or to erect an additional building on the Property, Landlord
shall give notice of Landlord's intentions to Tenant, and Tenant shall have
-32-
sixty (60) days following receipt of such notice to execute an amendment to
this Lease with Landlord for the additional space on such rent as Landlord
shall specify and otherwise on the same terms and conditions as set forth
herein. If Tenant fails to execute such a Lease amendment, Landlord may offer
the additional space to other tenants, provided that if the annual rent
offered by Landlord to other tenants for such space is more than ten percent
(10%) lower than the annual rent offered to Tenant, Tenant shall again have a
sixty-day right to execute a Lease amendment at such lower rent. Landlord
shall not expand or make additions to the Building or erect an additional
building on the Property at any time during the first twelve months of the
Lease term. During any construction thereafter, Landlord shall not materially
interfere with Tenant's use of or access to the Premises.
39.2 In the event that Landlord expands or makes additions to the
Building or erects an additional building on the Property and leases such
additional space to any other tenant, Landlord shall prepare reasonable rules
and regulations for the entire Property, subject to Tenant's reasonable review
and approval. Tenant and any new tenant(s) shall equitably share the cost of
common area maintenance, and the parking spaces shall be allocated between
Tenant and each new tenant on a pro rata square footage basis, provided that
Tenant shall be exclusively allocated at least 200 parking spaces.
40. WAIVERS
40.1 Landlord shall from time to time upon request execute waivers of
any rights to distrain or place a lien on Tenant's personal property as
required by any lender advancing funds to Tenant.
LANDLORD: TENANT:
781 THIRD PARTNERSHIP INTERDIGITAL COMMUNICATIONS
By: Wood Street Realty, Inc. CORPORATION
By: /s/ Kevin Flynn By: /s/ James W. Garrison
--------------------------- ---------------------------
Title: General Partner Title: Vice President, Chief
Financial Officer
Dated: July 14, 1995 Dated: July 15, 1995
-33-
EXHIBIT A
Attached to and made a part of Lease bearing the
Lease Reference Date of July 14, 1995 between
781 Third Partnership as Landlord and
Interdigital Communications Corporation as Tenant
PREMISES
Exhibit A is intended only to show the general layout of the Premises as of
the beginning of the Term of this Lease. It does not in any way supersede any
of Landlord's rights set forth in Section 16.1 with respect to arrangements
and/or locations of public parts of the Building and changes in such
arrangements and/or locations. It is not to be scaled; any measurements or
distances shown should be taken as approximate.
[GRAPHIC]
In the printed document, Exhibit A contains a surveyor's drawing of the leased
premises which includes street names, boundaries, drainage and access easements
and utility easements.
-34-
EXHIBIT B
Attached to and made a part of Lease bearing the
Lease Reference Date of July __ 1995 between
781 Third Partnership as Landlord and
Interdigital Communications Corporation as Tenant
INITIAL ALTERATIONS
[GRAPHIC]
In the printed document, Exhibit B contains an initial architectural design of
the interior of the leased building which presents various areas of the
building: Manufacturing, Engineering, Customer Support, Sales and Marketing and
general administrative areas.
-35-