EXHIBIT 10.12
AGREEMENT OF LEASE
BETWEEN
LIBERTY PROPERTY LIMITED PARTNERSHIP
("LANDLORD")
AND
INTERNATIONAL HEALTH PARTNERS, INC.
("TENANT")
FOR
120 GIBRALTAR ROAD, SUITE 107
PENNSYLVANIA BUSINESS CAMPUS
HORSHAM, PENNSYLVANIA 19044
LEASE AGREEMENT
(MULTI-TENANT OFFICE)
INDEX
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SS. SECTION PAGE
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1. Summary of Terms and Certain Definitions..............................1
2. Premises..............................................................2
3. Acceptance of Premises................................................2
4. Use; Compliance.......................................................2
5. Term..................................................................3
6. Minimum Annual Rent...................................................4
7. Operation of Property; Payment of Expenses............................4
8. Signs.................................................................7
9. Alterations and Fixtures..............................................7
10. Mechanics' Liens......................................................8
11. Landlord's Right to Relocate Tenant; Right of Entry...................8
12. Damage by Fire or Other Casualty......................................9
13. Condemnation..........................................................9
14. Non-Abatement of Rent................................................10
15. Indemnification of Landlord..........................................10
16. Waiver of Claims.....................................................10
17. Quiet Enjoyment......................................................10
18. Assignment and Subletting............................................11
19. Subordination; Mortgagee's Rights....................................12
20. Recording; Tenant's Certificate......................................12
21. Surrender; Abandoned Property........................................12
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22. Curing Tenant's Defaults.............................................13
23. Defaults - Remedies..................................................13
24. Representations of Tenant............................................16
25. Liability of Landlord................................................17
26. Interpretation; Definitions..........................................17
27. Notices..............................................................18
28. Security Deposit.....................................................18
ADDENDUM
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SS. SECTION PAGE
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29. Tenant Improvements................................................A-20
30. Furniture..........................................................A-20
31. Tenant's Release If Expands........................................A-20
32. Termination of Existing Lease......................................A-20
-ii-
THIS LEASE AGREEMENT is made by and between LIBERTY PROPERTY LIMITED
PARTNERSHIP, a Pennsylvania limited partnership ("LANDLORD") with its address at
5 Walnut Grove Drive, Suite 200, Horsham, PA 19044, and INTERNATIONAL HEALTH
PARTNERS, INC., an Indiana corporation ("TENANT") with an address at 120
Gibraltar Road, Suite 107, Horsham, PA 19044, and is dated as of the date on
which this lease has been fully executed by Landlord and Tenant.
1. SUMMARY OF TERMS AND CERTAIN DEFINITIONS.
(A) "PREMISES": Approximate rentable square feet: 7,097
(Section 2) Suite: 107
(B) "BUILDING": Approximate rentable square feet: 49,119
(ss.2) Address: 120 Gibraltar Road, Suite 107
Pennsylvania Business Campus
Horsham, PA 19044
(C) "TERM": Thirty-six (36) months plus any partial month from the
Commencement Date until the first day of the first full calendar month during
the Term
(i) "COMMENCEMENT DATE": May 15, 2004
(ii) "COMMENCEMENT DATE": See Section 5
(iii) "EXPIRATION DATE": See Section 5
(D) MINIMUM RENT (SS.6) & OPERATING EXPENSES (SS.7)
(i) "MINIMUM ANNUAL RENT":
Lease Year Annual Monthly
---------- ------ -------
1 $83,389.75 $6,949.15
2 $86,938.25 $7,244.85
3 $90,486.75 $7,540.56
(ii) ESTIMATED "ANNUAL OPERATING EXPENSES": $67,563.44
(Sixty-Seven Thousand Five Hundred Sixty-Three and 44/100 Dollars), payable in
monthly installments of $5,630.29 (Five Thousand Six Hundred Thirty and 29/100
Dollars), subject to adjustment (ss.7(a))
(E) "PROPORTIONATE SHARE" (ss.7(a)): 14.45% (Ratio of approximate
rentable square feet in the Premises to approximate rentable square feet in the
Building)
(F) "USE" (ss.4): General office purposes (excluding any "place of
public accommodation")
(G) "SECURITY DEPOSIT" (ss.28): $19,000.00 (Nineteen Thousand and
00/100 Dollars)
(H) CONTENTS: This lease consists of the Index, pages 1 through 13
containing Sections 1 through 28 and the following, all of which are attached
hereto and made a part of this lease:
Addendum with Sections 29 through 32.
Exhibits: "A" - Plan showing Premises
"B" - Commencement Certificate
"C" - Building Rules
"D" - Cleaning Schedule
"E" - Estoppel Certificate
"F" - Description of Improvements
"G" - List of Furniture
2. PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Premises as shown on attached Exhibit "A" within the Building (the
Building and the lot on which it is located, the "PROPERTY"), together with the
non-exclusive right with Landlord and other occupants of the Building to use all
areas and facilities provided by Landlord for the use of all tenants in the
Property including any lobbies, hallways, driveways, sidewalks and parking,
loading and landscaped areas (the "COMMON AREAS").
3. ACCEPTANCE OF PREMISES. Tenant has examined and knows the condition of the
Property, the zoning, streets, sidewalks, parking areas, curbs and access ways
adjoining it, visible easements, any surface conditions and the present uses,
and Tenant accepts them in the condition in which they now are, without relying
on any representation, covenant or warranty by Landlord, except as to the work
to be performed by Landlord pursuant to Section 29 below. Tenant's occupancy of
the Premises shall constitute acceptance of such work by Landlord. Tenant and
its Agents shall have the right, at Tenant's own risk, expense and
responsibility, at all reasonable times prior to the Commencement Date, to enter
the Premises for the purpose of taking measurements and installing its
furnishings and equipment; provided that Tenant does not interfere with or delay
the work to be performed by Landlord, Tenant uses contractors and workers
compatible with the contractors and workers engaged by Landlord, and Tenant
obtains Landlord's prior written consent.
4. USE; COMPLIANCE.
(A) PERMITTED USE. Tenant shall occupy and use the Premises for and
only for the Use specified in Section 1(f) above and in such a manner as is
lawful, reputable and will not create any nuisance or otherwise interfere with
any other tenant's normal operations or the management of the Building. Without
limiting the foregoing, such Use shall exclude any use that would cause the
Premises or the Property to be deemed a "place of public accommodation" under
the Americans with Disabilities Act (the "ADA") as further described in the
Building Rules (defined below). All Common Areas shall be subject to Landlord's
exclusive control and management at all times. Tenant shall not use or permit
the use of any portion of the Common Areas for other than their intended use.
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(B) COMPLIANCE. From and after the Commencement Date, Tenant shall
comply promptly, at its sale expense, (including making any alterations or
improvements) with all laws (including the ADA), ordinances, notices, orders,
rules, regulations and requirements regulating the Property during the Term
which impose any duty upon Landlord or Tenant with respect to Tenant's use,
occupancy or alteration of, or Tenant's installations in or upon, the Property
including the Premises, (as the same may be amended, the "LAWS AND
REQUIREMENTS") and the building rules attached as Exhibit "C", as amended by
Landlord from time to time, (the "BUILDING RULES"). Provided, however, that
Tenant shall not be required to comply with the Laws and Requirements with
respect to the footings, foundations, structural steel columns and girders
forming a part of the Property unless the need for such compliance arises out of
Tenant's use, occupancy or alteration of the Property, or by any act or omission
of Tenant or any employees, agents, contractors, licensees or invitees
("AGENTS") of Tenant. With respect to Tenant's obligations as to the Property,
other than the Premises, at Landlord's option and at Tenant's expense, Landlord
may comply with any repair, replacement or other construction requirements of
the Laws and Requirements and Tenant shall pay to Landlord all costs thereof as
additional rent.
(C) ENVIRONMENTAL. Tenant shall comply, at its sale expense, with all
Laws and Requirements as set forth above, all manufacturers' instructions and
all requirements of insurers relating to the treatment, production, storage,
handling, transfer, processing, transporting, use, disposal and release of
hazardous substances, hazardous mixtures, chemicals, pollutants, petroleum
products, toxic or radioactive matter (the "RESTRICTED ACTIVITIES"). Tenant
shall deliver to Landlord copies of all Material Safety Data Sheets or other
written information prepared by manufacturers, importers or suppliers of any
chemical and an notices, filings, permits and any other written communications
from or to Tenant and any entity regulating any Restricted Activities.
(D) NOTICE. If at any time during or after the Term, Tenant becomes
aware of any inquiry, investigation or proceeding regarding the Restricted
Activities or becomes aware of any claims, actions or investigations regarding
the ADA, Tenant shall give Landlord written notice, within 5 days after first
learning thereof, providing all available information and copies of any notices.
5. TERM. The Term of this lease shall commence on the later of (a) the
Completion Date or (b) the date of substantial completion of the improvements to
be constructed by Landlord under Section 29 below, but in any event no later
than the date on which Tenant occupies the Premises (the "COMMENCEMENT DATE")
and shall end at 11:59 p.m. on the last day of the Term (the "EXPIRATION DATE"),
without the necessity for notice from either party, unless sooner terminated in
accordance with the terms hereof; however, if the date of substantial completion
is delayed by Tenant, the Term shall commence as if the Premises were
substantially complete on the Completion Date, as extended for reasons other
than those caused by Tenant. Landlord shall confirm the Commencement Date and
the Expiration Date by executing a lease commencement certificate in the form
attached as Exhibit "B".
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6. MINIMUM ANNUAL RENT. Tenant agrees to pay to Landlord the Minimum Annual Rent
in equal monthly installments in the amount set forth in Section 1(d) (as
increased at the beginning of each lease year as set forth in Section 1(d)), in
advance, on the first day of each calendar month during the Term, without
notice, demand or setoff, at Landlord's address designated at the beginning of
this lease unless Landlord designates otherwise; provided that rent for the
first full month shall be paid at the signing of this lease. If the Commencement
Date falls on a day other than the first day of a calendar month, the rent shall
be apportioned pro rata on a per diem basis for the period from the Commencement
Date until the first day of the following calendar month and shall be paid on or
before the Commencement Date. As used in this lease, the term "LEASE YEAR" means
the period from the Commencement Date through the succeeding 12 full calendar
months (including for the first lease year any partial month from the
Commencement Date until the first day of the first full calendar month) and each
successive 12 month period thereafter during the Term.
7. OPERATION OF PROPERTY; PAYMENT OF EXPENSES.
(A) PAYMENT OF OPERATING EXPENSES. Tenant shall pay to Landlord the
Annual Operating Expenses in equal monthly installments in the amount set forth
in Section 1(d) (prorated for any partial month), from the Commencement Date and
continuing throughout the Term on the first day of each calendar month during
the Term, as additional rent, without notice, demand or setoff; provided that
the monthly installment for the first full month shall be paid at the signing of
this lease. Landlord shall apply such payments to the annual operating costs to
Landlord of operating and maintaining the Property during each calendar year of
the Term, which costs may include by way of example rather than limitation:
insurance premiums, fees, impositions, costs for repairs, maintenance, service
contracts, management and administrative fees, governmental permits, overhead
expenses, costs of furnishing water, sewer, gas, fuel, electricity, other
utility services, janitorial service, trash removal, security services,
landscaping and grounds maintenance, and the costs of any other items
attributable to operating or maintaining any or all of the Property excluding
any costs which under generally accepted accounting principles are capital
expenditures; provided, however, that annual operating costs also shall include
the annual amortization (over an assumed useful life of ten years) of the costs
(including financing charges) of building improvements made by Landlord to the
Property that are required by any governmental authority or for the purpose of
reducing operating expenses or directly enhancing the safety of tenants in the
Building generally. The amount of the Annual Operating Expenses set forth in
Section l(d) represents Landlord's estimate of Tenant's share of the estimated
operating costs during the first calendar year of the Term on an annualized
basis; from time to time Landlord may adjust such estimated amount if the
estimated operating costs increase. Tenant's obligation to pay the Annual
Operating Expenses pursuant to this Section 7 shall survive the expiration or
termination of this lease.
(i) COMPUTATION OF TENANT'S SHARE OF ANNUAL OPERATING COSTS.
After the end of each calendar year of the Term, Landlord shall compute Tenant's
share of the annual operating costs described above incurred during such
calendar year by (A) calculating an appropriate adjustment, using generally
accepted accounting principles, to avoid allocating to Tenant or to any other
tenant (as the case may be) those specific costs which Tenant or any other
tenant has agreed to pay; (B) calculating an appropriate adjustment, using
generally accepted accounting principles, to avoid allocating to any vacant
space those specific costs which were not incurred for such space; and (C)
multiplying the adjusted annual operating costs by Tenant's Proportionate Share.
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(ii) RECONCILIATION. By April 30th of each year (and as soon
as practical after the expiration or termination of this lease or at any time in
the event of a sale of the Property), Landlord shall provide Tenant with a
statement of the actual amount of such annual operating costs for the preceding
calendar year or part thereof. Landlord or Tenant shall pay to the other the
amount of any deficiency or overpayment then due from one to the other or, at
Landlord's option, Landlord may credit Tenant's account for any overpayment
Tenant shall have the right to inspect the books and records used by Landlord in
calculating the annual operating costs within 60 days of receipt of the
statement during regular business hours after having given Landlord at least 48
hours prior written notice; provided, however, that Tenant shall make all
payments of additional rent without delay, and that Tenant's obligation to pay
such additional rent shall not be contingent on any such right.
(B) IMPOSITIONS. As used in this lease the term "impositions" refers to
all levies, taxes (including sales taxes and gross receipt taxes) and
assessments, which are applicable to the Term, and which are imposed by any
authority or under any law, ordinance or regulation thereof, or pursuant to any
recorded covenants or agreements, and the reasonable cost of contesting any of
the foregoing, upon or with respect to the Property or any part thereof, or any
improvements thereto. Tenant shall pay to Landlord with the monthly payment of
Minimum Annual Rent any imposition imposed directly upon this lease or the Rent
(defined in Section 7(g)) or amounts payable by any subtenants or other
occupants of the Premises, or against Landlord because of Landlord's estate or
interest herein.
(i) Nothing herein contained shall be interpreted as requiring
Tenant to pay any income, excess profits or corporate capital stock tax imposed
or assessed upon Landlord, unless such tax or any similar tax is levied or
assessed in lieu of all or any part of any imposition or an increase in any
imposition.
(ii) If it shall not be lawful for Tenant to reimburse
Landlord for any of the impositions, the Minimum Annual Rent shall be increased
by the amount of the portion of such imposition allocable to Tenant, unless
prohibited by law.
(C) INSURANCE.
(i) PROPERTY. Landlord shall keep in effect insurance against
loss or damage to the Building or the Property by fire and such other casualties
as may be included within fire, extended coverage and special form insurance
covering the full replacement cost of the Building (but excluding coverage of
Tenant's personal property in, and any alterations by Tenant to, the Premises),
and such other insurance as Landlord may reasonably deem appropriate or as may
be required from time-to-time by any mortgagee.
(ii) LIABILITY. Tenant, at its own expense, shall keep in
effect comprehensive general public liability insurance with respect to the
Premises and the Property, including contractual liability insurance, with such
limits of liability for bodily injury (including death) and property damage as
reasonably may be required by Landlord from time-to-time, but not less than a
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combined single limit of $1,000,000 per occurrence and a general aggregate limit
of not less than $2,000,000 (which aggregate limit shall apply separately to
each of Tenant's locations if more than the Premises); however, such limits
shall not limit the liability of Tenant hereunder. The policy of comprehensive
general public liability insurance also shall name Landlord and Landlord's agent
as insured parties with respect to the Premises, shall be written on an
"occurrence" basis and not on a "claims made" basis, shall provide that it is
primary with respect to any policies carried by Landlord and that any coverage
carried by Landlord shall be excess insurance, shall provide that it shall not
be cancelable or reduced without at least 30 days prior written notice to
Landlord and shall be issued in form satisfactory to Landlord. The insurer shall
be a responsible insurance carrier which is authorized to issue such insurance
and licensed to do business in the state in which the Property is located and
which has at all times during the Term a rating of no less than A VII in the
most current edition of Best's Insurance Reports. Tenant shall deliver to
Landlord on or before the Commencement Date, and subsequently renewals of, a
certificate of insurance evidencing such coverage and the waiver of subrogation
described below.
(iii) WAIVER OF SUBROGATION. Landlord and Tenant shall have
included in their respective property insurance policies waivers of their
respective insurers' right of subrogation against the other party. If such a
waiver should be unobtainable or unenforceable, then such policies of insurance
shall state expressly that such policies shall not be invalidated if, before a
casualty, the insured waives the right of recovery against any party responsible
for a casualty covered by the policy.
(iv) INCREASE OF PREMIUMS. Tenant agrees not to do anything or
fail to do anything which will increase the cost of Landlord's insurance or
which will prevent Landlord from procuring policies (including public liability)
from companies and in a form satisfactory to Landlord. If any breach of the
preceding sentence by Tenant causes the rate of fire or other insurance to be
increased, Tenant shall pay the amount of such increase as additional rent
promptly upon being billed.
(D) REPAIRS AND MAINTENANCE; COMMON AREAS; BUILDING MANAGEMENT.
(i) Tenant at its sole expense shall maintain the Premises in
a neat and orderly condition.
(ii) Landlord, shall make all necessary repairs to the
Premises, the Common Areas and any other improvements located on the Property,
provided that Landlord shall have no responsibility to make any repair until
Landlord receives written notice of the need for such repair. Landlord shall
operate and manage the Property and shall maintain all Common Areas and any
paved areas appurtenant to the Property in a clean and orderly condition.
Landlord reserves the right to make alterations to the Common Areas from time to
time.
(iii) Notwithstanding anything herein to the contrary, repairs
and replacements to the Property including the Premises made necessary by
Tenant's use, occupancy or alteration of, or Tenant's installation in or upon
the Property or by any act or omission of Tenant or its Agents shall be made at
the sole expense of Tenant to the extent not covered by any applicable insurance
proceeds paid to Landlord. Tenant shall not bear the expense of any repairs or
replacements to the Property arising out of or caused by any other tenant's use,
occupancy or alteration of, or any other tenant's installation in or upon, the
Property or by any act or omission of any other tenant or any other tenant's
Agents.
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(E) UTILITIES.
(i) Landlord will furnish the Premises with electricity,
heating and air conditioning for the normal use and occupancy of the Premises as
general offices between 8:00 a.m. and 6:00 p.m., Monday through Friday (legal
holidays excepted). If Tenant shall require electricity or install electrical
equipment including but not limited to electrical heating, refrigeration
equipment, electronic data processing machines, or machines or equipment using
current in excess of 110 volts, which will in any way increase the amount of
electricity usually furnished for use as general office space, or if Tenant
shall attempt to use the Premises in such a manner that the services to be
furnished by Landlord would be required during periods other than or in addition
to business hours referred to above, Tenant will obtain Landlord's prior written
approval and will pay for the resulting additional direct expense, including the
expense resulting from the installation of such equipment and meters, as
additional rent promptly upon being billed. Landlord shall not be responsible or
liable for any interruption in utility service, nor shall such interruption
affect the continuation or validity of this lease.
(ii) If at any time utility services supplied to the Premises
are separately metered, the cost of installing Tenant's meter and the cost of
such separately metered utility service shall be paid by Tenant promptly upon
being billed.
(F) JANITORIAL SERVICES. Landlord will provide Tenant with trash
removal and janitorial services pursuant to a cleaning schedule attached as
Exhibit "D".
(G) "RENT." The term "RENT" as used in this lease means the Minimum
Annual Rent, Annual Operating Expenses and any other additional rent or sums
payable by Tenant to Landlord pursuant to this lease, all of which shall be
deemed rent for purposes of Landlord's rights and remedies with respect thereto.
Tenant shall pay all Rent to Landlord within 30 days after Tenant is billed,
unless otherwise provided in this lease, and interest shall accrue on all sums
due but unpaid.
8. SIGNS. Landlord, at Landlord's expense, will place Tenant's name and suite
number on the Building standard sign and on or beside the entrance door to the
Premises. Except for signs which are located wholly within the interior of the
Premises and not visible from the exterior of the Premises, no signs shall be
placed on the Property without the prior written consent of Landlord. All signs
installed by Tenant shall be maintained by Tenant in good condition and Tenant
shall remove all such signs at the termination of this lease and shall repair
any damage caused by such installation, existence or removal.
9. ALTERATIONS AND FIXTURES.
(a) Subject to Section 10, Tenant shall have the right to install
its trade fixtures in the Premises, provided that no such installation or
removal thereof shall affect any structural portion of the Property nor any
utility lines, communications lines, equipment or facilities in the Building
serving any tenant other than Tenant. At the expiration or termination of this
lease and at the option of Landlord or Tenant, Tenant shall remove such
installation(s) and, in the event of such removal, Tenant shall repair any
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damage caused by such installation or removal; if Tenant, with Landlord's
written consent, elects not to remove such installation(s) at the expiration or
termination of this lease, all such installations shall remain on the Property
and become the property of Landlord without payment by Landlord.
(b) Except for non-structural changes which do not exceed $5000 in
the aggregate, Tenant shall not make or permit to be made any alterations to the
Premises without Landlord's prior written consent. Tenant shall pay the costs of
any required architectural engineering reviews. In making any alterations, (i)
Tenant shall deliver to Landlord the plans, specifications and necessary
permits, together with certificates evidencing that Tenant's contractors and
subcontractors have adequate insurance coverage naming Landlord and Landlord's
agent as additional insureds, at least 10 days prior to commencement thereof,
(ii) such alterations shall not impair the structural strength of the Building
or any other improvements or reduce the value of the Property or affect any
utility lines, communications lines, equipment or facilities in the Building
serving any tenant other than Tenant, (iii) Tenant shall comply with Section 10
and (iv) the occupants of the Building and of any adjoining property shall not
be disturbed thereby. All alterations to the Premises by Tenant shall be the
property of Tenant until the expiration or termination of this lease; at that
time all such alterations shall remain on the Property and become the property
of Landlord without payment by Landlord unless Landlord gives written notice to
Tenant to remove the same, in which event Tenant will remove such alterations
and repair any resulting damage. At Tenant's request prior to Tenant making any
alterations, Landlord shall notify Tenant in writing, whether Tenant is required
to remove such alterations at the expiration or termination of this lease.
10. MECHANICS' LIENS. Tenant shall pay promptly any contractors and materialmen
who supply labor, work or materials to Tenant at the Property and shall take all
steps permitted by law in order to avoid the imposition of any mechanic's lien
upon all or any portion of the Property. Should any such lien or notice of lien
be filed for work performed for Tenant other than by Landlord, Tenant shall bond
against or discharge the same within 5 days after Tenant has notice that the
lien or claim is filed regardless of the validity of such lien or claim. Nothing
in this lease is intended to authorize Tenant to do or cause any work to be done
or materials to be supplied for the account of Landlord, all of the same to be
solely for Tenant's account and at Tenant's risk and expense. Throughout this
lease the term "MECHANIC'S LIEN" is used to include any lien, encumbrance or
charge levied or imposed upon all or any portion of, interest in or income from
the Property on account of any mechanic's, laborer's, materialman's or
construction lien or arising out of any debt or liability to or any claim of any
contractor, mechanic, supplier, materialman or laborer and shall include any
mechanic's notice of intention to me a lien given to Landlord or Tenant, any
stop order given to Landlord or Tenant, any notice of refusal to pay naming
Landlord or Tenant and any injunctive or equitable action brought by any person
claiming to be entitled to any mechanic's lien.
11. LANDLORD'S RIGHT TO RELOCATE TENANT; RIGHT OF ENTRY.
(A) Landlord may cause Tenant to relocate from the Premises to a
comparable space ("RELOCATION SPACE") within the Building by giving written
notice to Tenant at least 60 days in advance, provided that Landlord shall pay
for all reasonable costs of such relocation. Such a relocation shall not
terminate, modify or otherwise affect this lease except that "Premises" shall
refer to the Relocation Space rather than the old location identified in Section
l(a).
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(B) Tenant shall permit Landlord and its Agents to enter the
Premises at all reasonable times following reasonable notice (except in the
event of an emergency), for the purpose of inspection, maintenance or making
repairs, alterations or additions as well as to exhibit the Premises for the
purpose of sale or mortgage and, during the last 12 months of the Term, to
exhibit the Premises to any prospective tenant. Landlord will make reasonable
efforts not to inconvenience Tenant in exercising the foregoing rights, but
shall not be liable for any loss of occupation or quiet enjoyment thereby
occasioned.
12. DAMAGE BY FIRE OR OTHER CASUALTY.
(A) If the Premises or Building shall be damaged or destroyed by
fire or other casualty, Tenant promptly shall notify Landlord and Landlord,
subject to the conditions set forth in this Section 12, shall repair such damage
and restore the Premises to substantially the same condition in which they were
immediately prior to such damage or destruction, but not including the repair,
restoration or replacement of the fixtures or alterations installed by Tenant.
Landlord shall notify Tenant in writing, within 30 days after the date of the
casualty, if Landlord anticipates that the restoration will take more than 180
days from the date of the casualty to complete; in such event either Landlord or
Tenant may terminate this lease effective as of the date of casualty by giving
written notice to the other within 10 days after Landlord's notice. Further, if
a casualty occurs during the last 12 months of the Term or any extension
thereof, Landlord may cancel this lease unless Tenant has the right to extend
the Term for at least 3 more years and does so within 30 days after the date of
the casualty.
(B) Landlord shall maintain a 12 month rental coverage endorsement
or other comparable form of coverage as part of its fire, extended coverage and
special form insurance. Tenant will receive an abatement of its Minimum Annual
Rent and Annual Operating Expenses to the extent the Premises are rendered
untenantable as determined by the carrier providing the rental coverage
endorsement.
13. CONDEMNATION.
(A) TERMINATION. If (i) all of the Premises are taken by a condemnation
or otherwise for any public or quasi-public use, (ii) any part of the Premises
is so taken and the remainder thereof is insufficient for the reasonable
operation of Tenant's business or (iii) any of the Property is so taken, and, in
Landlord's opinion, it would be impractical or the condemnation proceeds are
insufficient to restore the remainder of the Property, then this lease shall
terminate and all unaccrued obligations hereunder shall cease as of the day
before possession is taken by the condemnor.
(B) PARTIAL TAKING. If there is a condemnation and this lease has not
been terminated pursuant to this Section, (i) Landlord shall restore the
Building and the improvements which are a part of the Premises to a condition
and size as nearly comparable as reasonably possible to the condition and size
thereof immediately prior to the date upon which the condemnor took possession
and (ii) the obligations of Landlord and Tenant shall be unaffected by such
condemnation except that there shall be an equitable abatement of the Minimum
Annual Rent according to the rental value of the Premises before and after the
date upon which the condemnor took possession and/or the date Landlord completes
such restoration.
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(C) AWARD. In the event of a condemnation affecting Tenant, Tenant
shall have the right to make a claim against the condemnor for moving expenses
and business dislocation damages to the extent that such claim does not reduce
the sums otherwise payable by the condemnor to Landlord. Except as aforesaid and
except as set forth in (d) below, Tenant hereby assigns all claims against the
condemnor to Landlord.
(D) TEMPORARY TAKING. No temporary taking of the Premises shall
terminate this lease or give Tenant any right to any rental abatement. Such a
temporary taking will be treated as if Tenant had sublet the Premises to the
condemnor and had assigned the proceeds of the subletting to Landlord to be
applied on account of Tenant's obligations hereunder Any award for such a
temporary taking during the Term shall be applied first to Landlord's costs of
collection and, second, on account of sums owing by Tenant hereunder, and if
such amounts applied on account of sums owing by Tenant hereunder should exceed
the entire amount owing by Tenant for the remainder of the Term, the excess will
be paid to Tenant.
14. NON-ABATEMENT OF RENT. Except as otherwise expressly provided as to damage
by fire or other casualty in Section 12(b) and as to condemnation in Section
13(b), there shall be no abatement or reduction of the Rent for any cause
whatsoever, and this lease shall not terminate, and Tenant shall not be entitled
to surrender the Premises.
15. INDEMNIFICATION OF LANDLORD. Subject to Sections 7(c)(iii) and 16, Tenant
will protect, indemnity and hold harmless Landlord and its Agents from and
against any and all claims, actions, damages, liability and expense (including
fees of attorneys, investigators and experts) in connection with loss of life,
personal injury or damage to property in or about the Premises or arising out of
the occupancy or use of the Premises by Tenant or its Agents or occasioned
wholly or in part by any act or omission of Tenant or its Agents, whether prior
to, during or after the Term, except to the extent such loss, injury or damage
was caused by the negligence of landlord or its Agents. In case any action or
proceeding is brought against Landlord and/or its Agents by reason of the
foregoing, Tenant at its expense, shall resist and defend such action or
proceeding, or cause the same to be resisted and defended by counsel (reasonably
acceptable to Landlord and its Agents) designated by the insurer whose policy
covers such occurrence or by counsel designated by Tenant and approved by
Landlord and its Agents. Tenant's obligations pursuant to this Section 15 shall
survive the expiration or termination of this lease.
16. WAIVER OF CLAIMS. Landlord and Tenant each hereby waives all claims for
recovery against the other for any loss or damage which may be inflicted upon
the property of such party even if such loss or damage shall be brought about by
the fault or negligence of the other party or its Agents; provided, however,
that such waiver by Landlord shall not be effective with respect to any
liability of Tenant described in Sections 4(c) and 7(d)(iii).
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17. QUIET ENJOYMENT. Landlord covenants that Tenant, upon performing all of its
covenants, agreements and conditions of this lease, shall have quiet and
peaceful possession of the Premises as against anyone claiming by or through
Landlord, subject, however, to the exceptions, reservations and conditions of
this lease.
18. ASSIGNMENT AND SUBLETTING.
(A) LIMITATION. Tenant shall not transfer this lease, voluntarily or by
operation of law, without the prior written consent of Landlord which shall not
be withheld unreasonably. However, landlord's consent shall not be required in
the event of any transfer by Tenant to an affiliate of Tenant which is at least
as creditworthy as Tenant as of the date of this lease and provided Tenant
delivers to Landlord the instrument described in Section (c)(iii) below,
together with a certification of such creditworthiness by Tenant and such
affiliate. Any transfer not in conformity with this Section 18 shall be void at
the option of Landlord, and Landlord may exercise any or all of its rights under
Section 23. A consent to one transfer shall not be deemed to be a consent to any
subsequent transfer. "Transfer" shall include any sublease, assignment, license
or concession agreement, change in ownership or control of Tenant, mortgage or
hypothecation of this lease or Tenant's interest therein or in all or a portion
of the Premises.
(B) OFFER TO LANDLORD. Tenant acknowledges that the terms of this
lease, including the Minimum Annual Rent, have been based on the understanding
that Tenant physically shall occupy the Premises for the entire Term. Therefore,
upon Tenant's request to transfer all or a portion of the Premises, at the
option of Landlord, Tenant and Landlord shall execute an amendment to this lease
removing such space from the Premises, Tenant shall be relieved of any liability
with respect to such space and Landlord shall have the right to lease such space
to any party, including Tenant's proposed transferee.
(C) CONDITIONS. Notwithstanding the above, the following shall apply to
any transfer, with or without Landlord's consent:
(i) As of the date of any transfer, Tenant shall not be in
default under this lease nor shall any act or omission have occurred which would
constitute a default with the giving of notice and/or the passage of time.
(ii) No transfer shall relieve Tenant of its obligation to pay
the Rent and to perform all its other obligations hereunder. The acceptance of
Rent by Landlord from any person shall not be deemed to be a waiver by Landlord
of any provision of this lease or to be a consent to any transfer.
(iii) Each transfer shall be by a written instrument in form
and substance satisfactory to Landlord which shall (A) include an assumption of
liability by any transferee of all Tenant's obligations and the transferee's
ratification of and agreement to be bound by all the provisions of this lease,
(B) afford Landlord the right of direct action against the transferee pursuant
to the same remedies as are available to Landlord against Tenant and (C) be
executed by Tenant and the transferee.
(iv) Tenant shall pay, within 10 days of receipt of an invoice
which shall be no less than $250, Landlord's reasonable attorneys' fees and
costs in connection with the review, processing and documentation of any
transfer for which Landlord's consent is requested.
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19. SUBORDINATION; MORTGAGEE'S RIGHTS.
(A) This lease shall be subordinate to any first mortgage or other
primary encumbrance now or hereafter affecting the Premises. Although the
subordination is self-operative, within 10 days after written request, Tenant
shall execute and deliver any further instruments confirming such subordination
of this lease and any further instruments of attornment that may be desired by
any such mortgagee or Landlord. However, any mortgagee may at any time
subordinate its mortgage to this lease, without Tenant's consent, by giving
written notice to Tenant, and thereupon this lease shall be deemed prior to such
mortgage without regard to their respective dates of execution and delivery;
provided, however, that such subordination shall not affect any mortgagee's
right to condemnation awards, casualty insurance proceeds, intervening liens or
any right which shall arise between the recording of such mortgage and the
execution of this lease.
(B) It is understood and agreed that any mortgagee shall not be
liable to Tenant for any funds paid by Tenant to Landlord unless such funds
actually have been transferred to such mortgagee by Landlord.
(C) Notwithstanding the provisions of Sections 12 and 13 above,
Landlord's obligation to restore the Premises after a casualty or condemnation
shall be subject to the consent and prior rights of Landlord's first mortgagee.
20. RECORDING; TENANT'S CERTIFICATE. Tenant shall not record this lease or a
memorandum thereof without Landlord's prior written consent. Within 10 days
after Landlord's written request from time to time:
(A) Tenant shall execute, acknowledge and deliver to Landlord a
written statement certifying the Commencement Date and Expiration Date of this
lease, that this lease is in full force and effect and has not been modified and
otherwise as set forth in the form of estoppel certificate attached as Exhibit
"E" or with such modifications as may be necessary to reflect accurately the
stated facts and/or such other certifications as may be requested by a mortgagee
or purchaser. Tenant understands that its failure to execute such documents may
cause Landlord serious financial damage by causing the failure of a financing or
sale transaction.
(B) Tenant shall furnish to Landlord, Landlord's mortgagee,
prospective mortgagee or purchaser reasonably requested financial information.
21. SURRENDER; ABANDONED PROPERTY.
(A) Subject to the terms of Sections 9(b), 12(a) and 13(b), at the
expiration or termination of this lease, Tenant promptly shall yield up in the
same condition, order and repair in which they are required to be kept
throughout the Term, the Premises and all improvements thereto, and all fixtures
and equipment servicing the Building, ordinary wear and tear excepted.
(B) Upon or prior to the expiration or termination of this lease,
Tenant shall remove any personal property from the Property. Any personal
property remaining thereafter shall be deemed conclusively to have been
abandoned, and Landlord, at Tenant's expense, may remove, store, sell or
otherwise dispose of such property in such manner as Landlord may see fit and/or
12
Landlord may retain such property as its property. If any part thereof shall be
sold, then Landlord may receive and retain the proceeds of such sale and apply
the same, at its option, against the expenses of the sale, the cost of moving
and storage and any Rent due under this lease.
(C) If Tenant, or any person claiming through Tenant, shall
continue to occupy the Premises after the expiration or termination of this
lease or any renewal thereof, such occupancy shall be deemed to be under a
month-to-month tenancy under the same terms and conditions set forth in this
lease, except that the monthly installment of the Minimum Annual Rent during
such continued occupancy shall be double the amount applicable to the last month
of the Term. Anything to the contrary notwithstanding, any holding over by
Tenant without Landlord's prior written consent shall constitute a default
hereunder and shall be subject to all the remedies available to Landlord.
22. CURING TENANT'S DEFAULTS. If Tenant shall be in default in the performance
of any of its obligations hereunder, Landlord, without any obligation to do so,
in addition to any other rights it may have in law or equity, may elect to cure
such default on behalf of Tenant after written notice (except in the case of
emergency) to Tenant. Tenant shall reimburse Landlord upon demand for any sums
paid or costs incurred by Landlord in curing such default, including interest
thereon from the respective dates of Landlord's incurring such costs, which sums
and costs together with interest shall be deemed additional rent.
23. DEFAULTS - REMEDIES.
(A) DEFAULTS. It shall be an event of default:
(i) If Tenant does not pay in full when due any and all Rent;
(ii) If Tenant fails to observe and perform or otherwise
breaches any other provision of this lease;
(iii) If Tenant abandons the Premises, which shall be
conclusively presumed if the Premises remain unoccupied for more than 10
consecutive days, or removes or attempts to remove Tenant's goods or property
other than in the ordinary course of business; or
(iv) If Tenant becomes insolvent or bankrupt in any sense or
makes a general assignment for the benefit of creditors or offers a settlement
to creditors, or if a petition in bankruptcy or for reorganization or for an
arrangement with creditors under any federal or state law is filed by or against
Tenant, or a bill in equity or other proceeding for the appointment of a
receiver for any of Tenant's assets is commenced, or if any of the real or
personal property of Tenant shall be levied upon; provided, however, that any
proceeding brought by anyone other than Landlord or Tenant under any bankruptcy,
insolvency, receivership or similar law shall not constitute a default until
such proceeding has continued unstayed for more than 60 consecutive days.
(B) REMEDIES. Then, and in any such event, Landlord shall have the
following rights:
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(i) To charge a late payment fee equal to the greater of $100
or 5% of any amount owed to Landlord pursuant to this lease which is not paid
within 5 days after the due date.
(ii) To enter and repossess the Premises, by breaking open
locked doors if necessary, and remove all persons and all or any property
therefrom, by action at law or otherwise, without being liable for prosecution
or damages therefor, and Landlord may, at Landlord's option, make alterations
and repairs in order to relet the Premises and relet all or any part(s) of the
Premises for Tenant's account. Tenant agrees to pay to Landlord on demand any
deficiency that may arise by reason of such reletting. In the event of reletting
without termination of this lease, Landlord may at any time thereafter elect to
terminate this lease for such previous breach.
(iii) To accelerate the whole or any part of the Rent for the
balance of the Term, and declare the same to be immediately due and payable.
(iv) To terminate this lease and the Term without any right on
the part of Tenant to save the forfeiture by payment of any sum due or by other
performance of any condition, term or covenant broken.
(v) When this lease and the Term or any extension thereof
shall have been terminated on account of any default by Tenant, or when the Term
or any extension thereof shall have expired, Tenant hereby authorizes any
attorney of any court of record of the Commonwealth of Pennsylvania to appear
for Tenant and for anyone claiming by, through or under Tenant and to confess
judgment against all such parties, and in favor of Landlord, in ejectment and
for the recovery of possession of the Premises, for which this lease or a true
and correct copy hereof shall be good and sufficient warrant. AFTER THE ENTRY OF
ANY SUCH JUDGMENT, A WRIT OF POSSESSION MAY BE ISSUED THEREON WITHOUT FURTHER
NOTICE TO TENANT AND WITHOUT A HEARING. If for any reason after such action
shall have been commenced it shall be determined and possession of the Premises
remain in or be restored to Tenant, Landlord shall have the right for the same
default and upon any subsequent default(s) or upon the termination of this lease
or Tenant's right of possession as herein set forth, to again confess judgment
as herein provided, for which this lease or a true and correct copy hereof shall
be good and sufficient warrant.
(vi) If Tenant shall default in the payment of the Rent due
hereunder, Tenant hereby authorizes any attorney of any court of record of the
Commonwealth of Pennsylvania to appear for Tenant and to confess judgment
against Tenant, and in favor of Landlord, for all sums due hereunder plus
interest, costs and an attorney's collection commission equal to the greater of
10% of all such sums or $1,000, for which this lease or a true and correct copy
hereof shall be good and sufficient warrant. TENANT UNDERSTANDS THAT THE
FOREGOING PERMITS LANDLORD TO ENTER A JUDGMENT AGAINST TENANT WITHOUT PRIOR
NOTICE OR HEARING. ONCE SUCH A JUDGMENT HAS BEEN ENTERED AGAINST TENANT, ONE OR
MORE WRITS OF EXECUTION OR WRITS OF GARNISHMENT MAY BE ISSUED THEREON WITHOUT
FURTHER NOTICE TO TENANT AND WITHOUT A HEARING, AND, PURSUANT TO SUCH WRITS,
LANDLORD MAY CAUSE THE SHERIFF OF THE COUNTY IN WHICH ANY PROPERTY OF TENANT IS
14
LOCATED TO SEIZE TENANT'S PROPERTY BY LEVY OR ATTACHMENT. IF THE JUDGMENT
AGAINST TENANT REMAINS UNPAID AFTER SUCH LEVY OR ATTACHMENT, LANDLORD CAN CAUSE
SUCH PROPERTY TO BE SOLD BY THE SHERIFF EXECUTING THE WRITS, OR, IF SUCH
PROPERTY CONSISTS OF A DEBT OWED TO TENANT BY ANOTHER ENTITY, LANDLORD CAN CAUSE
SUCH DEBT TO BE PAID DIRECTLY TO LANDLORD IN AN AMOUNT UP TO BUT NOT TO EXCEED
THE AMOUNT OF THE JUDGMENT OBTAINED BY LANDLORD AGAINST TENANT, PLUS THE COSTS
OF THE EXECUTION. Such authority shall not be exhausted by one exercise thereof,
but judgment may be confessed as aforesaid from time to time as often as any of
said rental and other sums shall fall due or be in arrears, and such powers may
be exercised as well after the expiration of the initial Term of this lease and
during any extended or renewal Term of this lease and after the expiration of
any extended or renewal Term of this lease.
(vii) The warrants of attorney to confess judgment set forth
above shall continue in full force and effect and be unaffected by amendments to
this lease or other agreements between Landlord and Tenant even if any such
amendments or other agreements increase Tenant's obligations or expand the size
of the Premises. Tenant waives any procedural errors in connection with the
entry of any such judgment or in the issuance of any one or more writs of
possession or execution or garnishment thereon.
(viii) TENANT KNOWINGLY AND EXPRESSLY WAIVES (i) ANY RIGHT,
INCLUDING, WITHOUT LIMITATION, UNDER ANY APPLICABLE STATUTE, WHICH TENANT MAY
HAVE TO RECEIVE A NOTICE TO QUIT PRIOR TO LANDLORD COMMENCING AN ACTION FOR
REPOSSESSION OF THE PREMISES AND (ii) ANY RIGHT WHICH TENANT MAY HAVE TO NOTICE
AND TO HEARING PRIOR TO A LEVY UPON OR ATTACHMENT OF TENANT'S PROPERTY OR
THEREAFTER.
INTERNATIONAL HEALTH PARTNERS, INC
By: /s/ David M. Daniels
----------------------------
Name: David M. Daniels
Title: CEO
(C) GRACE PERIOD. Notwithstanding anything hereinabove stated, neither
party will exercise any available right because of any default of the other,
except those remedies contained in subsection (b)(i) of this Section, unless
such party shall have first given 10 days written notice thereof to the
defaulting party, and the defaulting party shall have failed to cure the default
within such period; provided, however, that:
(i) No such notice shall be required if Tenant fails to comply
with the provisions of Sections 10 or 20(a), in the case of emergency as set
forth in Section 22 or in the event of any default enumerated in subsections
(a)(iii) and (iv) of this Section.
15
(ii) Landlord shall not be required to give such 10 days
notice more than 2 times during any 12 month period.
(iii) If the default consists of something other than the
failure to pay money which cannot reasonably be cured within 10 days, neither
party will exercise any right if the defaulting party begins to cure the default
within the 10 days and continues actively and diligently in good faith to
completely cure said default.
(iv) Tenant agrees that any notice given by Landlord pursuant
to this Section which is served in compliance with Section 27 shall be adequate
notice for the purpose of Landlord's exercise of any available remedies.
(D) NON-WAIVER; NON-EXCLUSIVE. No waiver by Landlord of any breach by
Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by
Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of
any rights and remedies with respect to such or any subsequent breach. Efforts
by Landlord to mitigate the damages caused by Tenant's default shall not
constitute a waiver of Landlord's right to recover damages hereunder. No right
or remedy herein conferred upon or reserved to Landlord is intended to be
exclusive of any other right or remedy provided herein or by law, but each shall
be cumulative and in addition to every other right or remedy given herein or now
or hereafter existing at law or in equity. No payment by Tenant or receipt or
acceptance by Landlord of a lesser amount than the total amount due Landlord
under this lease shall be deemed to be other than on account, nor shall any
endorsement or statement on any check or payment be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of Rent due, or Landlord's right to
pursue any other available remedy.
(E) COSTS AND ATTORNEYS' FEES. If either party commences an action
against the other party arising out of or in connection with this lease, the
prevailing party shall be entitled to have and recover from the losing party
attorneys' fees, costs of suit, investigation expenses and discovery costs,
including costs of appeal.
24. REPRESENTATIONS OF TENANT. Tenant represents to Landlord and agrees that:
(A) The word "TENANT" as used herein includes the Tenant named above as
well as its successors and assigns, each of which shall be under the same
obligations and liabilities and each of which shall have the same rights,
privileges and powers as it would have possessed had it originally signed this
lease as Tenant. Each and every of the persons named above as Tenant shall be
bound jointly and severally by the terms, covenants and agreements contained
herein. However, no such rights, privileges or powers shall inure to the benefit
of any assignee of Tenant immediate or remote, unless Tenant has complied with
the terms of Section 18 and the assignment to such assignee is permitted or has
been approved in writing by Landlord. Any notice required or permitted by the
terms of this lease may be given by or to any one of the persons named above as
Tenant, and shall have the same force and effect as if given by or to all
thereof.
16
(B) If Tenant is a corporation, partnership or any other form of
business association or entity, Tenant is duly formed and in good standing, and
has full corporate or partnership power and authority, as the case may be, to
enter into this lease and has taken all corporate or partnership action, as the
case may be, necessary to carry out the transaction contemplated herein, so that
when executed, this lease constitutes a valid and binding obligation enforceable
in accordance with its terms. Tenant shall provide Landlord with corporate
resolutions or other proof in a form acceptable to Landlord, authorizing the
execution of this lease at the time of such execution.
25. LIABILITY OF LANDLORD. The word "LANDLORD" as used herein includes the
Landlord named above as well as its successors and assigns, each of which shall
have the same rights, remedies, powers, authorities and privileges as it would
have had it originally signed this lease as Landlord. Any such person or entity,
whether or not named herein, shall have no liability hereunder after it ceases
to hold title to the Premises except for obligations already accrued (and, as to
any unapplied portion of Tenant's Security Deposit, Landlord shall be relieved
of all liability therefor upon transfer of such portion to its successor in
interest) and Tenant shall look solely to Landlord's successor in interest for
the performance of the covenants and obligations of the Landlord hereunder which
thereafter shall accrue. Neither Landlord nor any principal of Landlord nor any
owner of the Property, whether disclosed or undisclosed, shall have any personal
liability with respect to any of the provisions of this lease or the Premises,
and if Landlord is in breach or default with respect to Landlord's obligations
under this lease or otherwise, Tenant shall look solely to the equity of
Landlord in the Property for the satisfaction of Tenant's claims.
Notwithstanding the foregoing, no mortgagee or ground lessor succeeding to the
interest of Landlord hereunder (either in terms of ownership or possessory
rights) shall be (a) liable for any previous act or omission of a prior
landlord, (b) subject to any rental offsets or defenses against a prior landlord
or (c) bound by any amendment of this lease made without its written consent or
by payment by Tenant of Minimum Annual Rent in advance in excess of one monthly
installment.
26. INTERPRETATION; DEFINITIONS.
(A) CAPTIONS. The captions in this lease are for convenience only and
are not a part of this lease and do not in any way define, limit, describe or
amplify the terms and provisions of this lease or the scope or intent thereof.
(B) ENTIRE AGREEMENT. This lease represents the entire agreement
between the parties hereto and there are no collateral or oral agreements or
understandings between Landlord and Tenant with respect to the Premises or the
Property. No rights, easements or licenses are acquired in the Property or any
land adjacent to the Property by Tenant by implication or otherwise except as
expressly set forth in the provisions of this lease. This lease shall not be
modified in any manner except by an instrument in writing executed by the
parties. The masculine (or neuter) pronoun and the singular number shall include
the masculine, feminine and neuter genders and the singular and plural number.
The word "INCLUDING" followed by any specific item(s) is deemed to refer to
examples rather than to be words of limitation. Both parties having participated
fully and equally in the negotiation and preparation of this lease, this lease
shall not be more strictly construed, nor any ambiguities in this lease
resolved, against either Landlord or Tenant.
17
(C) COVENANTS. Each covenant, agreement, obligation, term, condition or
other provision herein contained shall be deemed and construed as a separate and
independent covenant of the party bound by, undertaking or making the same, not
dependent on any other provision of this lease unless otherwise expressly
provided. All of the terms and conditions set forth in this lease shall apply
throughout the Term unless otherwise expressly set forth herein.
(D) INTEREST. Wherever interest is required to be paid hereunder, such
interest shall be at the highest rate permitted under law but not in excess of
15% per annum.
(E) SEVERABILITY; GOVERNING LAW. If any provisions of this lease shall
be declared unenforceable in any respect, such unenforceability shall not affect
any other provision of this lease, and each such provision shall be deemed to be
modified, if possible, in such a manner as to render it enforceable and to
preserve to the extent possible the intent of the parties as set forth herein.
This lease shall be construed and enforced in accordance with the laws of the
state in which the Property is located.
(F) "MORTGAGE" AND "MORTGAGEE." The word "MORTGAGE" as used herein
includes any lien or encumbrance on the Premises or the Property or on any part
of or interest in or appurtenance to any of the foregoing, including without
limitation any ground rent or ground lease if Landlord's interest is or becomes
a leasehold estate. The word "MORTGAGEE" as used herein includes the holder of
any mortgage, including any ground lessor if Landlord's interest is or becomes a
leasehold estate. Wherever any right is given to a mortgagee, that right may be
exercised on behalf of such mortgagee by any representative or servicing agent
of such mortgagee.
(G) "PERSON." The word "person" is used herein to include a natural
person, a partnership, a corporation, an association and any other form of
business association or entity.
27. NOTICES. Any notice or other communication under this lease shall be in
writing and addressed to Landlord or Tenant at their respective addresses
specified at the beginning of this lease, except that after the Commencement
Date Tenant's address shall be at the Premises, (or to such other address as
either may designate by notice to the other) with a copy to any mortgagee or
other party designated by Landlord. Each notice or other communication shall be
deemed given if sent by prepaid overnight delivery service or by certified mail,
return receipt requested, postage prepaid or in any other manner, with delivery
in any case evidenced by a receipt, and shall be deemed received on the day of
actual receipt by the intended recipient or on the business day delivery is
refused. The giving of notice by Landlord's attorneys, representatives and
agents under this Section shall be deemed to be the acts of Landlord; however,
the foregoing provisions governing the date on which a notice is deemed to have
been received shall mean and refer to the date on which a party to this lease,
and not its counselor other recipient to which a copy of the notice may be sent,
is deemed to have received the notice.
28. SECURITY DEPOSIT. At the time of signing this lease, Tenant shall deposit
with Landlord the sum of $15,000 to be retained by Landlord, together with the
$4,000 security deposit under the Existing Lease (as defined in Section 32)
which will be transferred by Landlord to this lease on the Commencement Date, as
cash security for the faithful performance and observance by Tenant of the
provisions of this lease. Tenant shall not be entitled to any interest whatever
18
on the Security Deposit. Landlord shall have the right to commingle the Security
Deposit with its other funds. Landlord may use the whole or any part of the
Security Deposit for the payment of any amount as to which Tenant is in default
hereunder or to compensate Landlord for any loss or damage it may suffer by
reason of Tenant's default under this lease. If Landlord uses all or any portion
of the Security Deposit as herein provided, within 10 days after written demand
therefor, Tenant shall pay Landlord cash in amount equal to that portion of the
Security Deposit used by Landlord. If Tenant shall comply fully and faithfully
with all of the provisions of this lease, the Security Deposit shall be returned
to Tenant after the Expiration Date and surrender of the Premises to Landlord.
IN WITNESS WHEREOF, and in consideration of the mutual entry into this lease and
for other good and valuable consideration, and intending to be legally bound,
Landlord and Tenant have executed this lease
Date signed: LANDLORD:
4/22/04 LIBERTY PROPERTY LIMITED PARTNERSHIP
- ------------------------- By: Liberty Property Trust, Sole General Partner
By: /s/ Ward J. Fitzgerald
-----------------------------------------------
Name: Ward J. Fitzgerald
Title: Senior Vice President, Regional Director
Date signed: TENANT:
4/20/04 INTERNATIONAL HEALTH PARTNERS, INC.
- -------------------------
Attest: /s/ R. H. Folts By: /s/ David M. Daniels
----------------- -----------------------------------------------
Name: R. H. Folts Name: David M. Daniels
Title: Title: CEO
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ADDENDUM
29. TENANT IMPROVEMENTS. Landlord shall complete the Premises in accordance with
the description of improvements attached as Exhibit "F". All necessary
construction shall be substantially completed ready for use and occupancy by
Tenant on the Completion Date, subject to extension for delays due to any cause
beyond the reasonable control of Landlord or Landlord's contractors or
suppliers. All construction shall be done in a good and workmanlike manner and
shall comply at the time of completion with all applicable Laws and Requirements
of the governmental authorities having jurisdiction.
30. FURNITURE. The lease of the Premises includes the right of Tenant to use the
furniture listed on Exhibit "G" attached hereto (the "Furniture"). The Furniture
will be accepted by Tenant in its "as is" "where is" condition and without
representation or warranty, express or implied, as to its condition,
merchantability or fitness for a particular purpose. Tenant shall comply with
all Laws and Requirements in connection with the installation and use of the
Furniture in the Premises. During the Term, Tenant shall maintain the Furniture
in its present condition, reasonable wear and tear excepted, and upon the
expiration or earlier termination of this lease shall surrender the Furniture to
Landlord in such condition.
31. TENANT'S RELEASE IF EXPANDS. If at any time during the term of this lease
Tenant desires to lease at least 75% more square feet than the then current
square footage of the Premises and Tenant enters into a lease with Landlord for
such larger space in any of Landlord's buildings, Landlord agrees that, at
Tenant's request, Landlord will enter into an agreement with Tenant to terminate
this lease as of the commencement date of the lease for the larger space.
32. TERMINATION OF EXISTING LEASE.
(a) Landlord and Tenant are parties to a Lease Agreement dated December
1, 2001, as amended by Amendment to Lease Agreement dated February 25, 2004
(collectively, the "Existing Lease") with respect to premises containing
approximately 2,045 rentable square feet in the Building (the "Existing
Premises").
(b) Upon substantial completion of the Premises, Tenant shall vacate
and surrender the Existing Premises leaving same in the condition it is required
to be surrendered under the Existing Lease, at which time the Existing Lease
shall terminate and all covenants and obligations of the parties with respect to
the Existing Lease shall cease; provided, however, that all covenants,
obligations and indemnifications set forth in the Existing Lease (as the same
pertain to the leasing of the Existing Premises prior to the termination of the
Existing Lease) shall survive and remain in full force and effect and shall be
paid or performed by the applicable party when due or owing.
A-1
EXHIBIT A
[GRAPHIC OMITTED]
EXHIBIT "B"
LEASE COMMENCEMENT CERTIFICATE
Re: LEASE DATED __________________, 2004 FOR PREMISES LOCATED AT 120 GIBRALTAR
ROAD, HORSHAM, PA BETWEEN LIBERTY PROPERTY LIMITED PARTNERSHIP AS LANDLORD AND
INTERNATIONAL HEALTH PARTNERS, INC. AS TENANT ("LEASE").
Dear __________________:
This is to confirm the following with respect to the Lease:
COMMENCEMENT DATE: ____________________, 20___
EXPIRATION DATE: ____________________, 20___
As set forth in the Lease, Minimum Annual Rent and Annual Operating Expenses are
due on or before the Commencement Date for the period from the Commencement Date
until the first day of the next calendar month unless the Commencement Date is
the first day of the calendar month. Accordingly, the following amounts arc due
on or before the Commencement Date:
Apportioned Minimum Rent: $___________________
Apportioned Operating Expenses: $___________________
TOTAL: $___________________
Thereafter regular monthly payments will be due in the following amounts until
adjusted in accordance with the Lease:
Monthly Rent Installment: $___________________
Monthly Operating Payment: $___________________
TOTAL MONTHLY PAYMENT: $___________________
If you disagree with any of the information set forth above, please advise us in
writing within five days of your receipt of this letter; otherwise the
Commencement Date and the Expiration Date of the Lease will be as set forth
above.
Sincerely,
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: Liberty Property Trust, Sole General Partner
By:_________________________
Name:
Title:
EXHIBIT "C"
BUILDING RULES
(i) As stated in the lease, Tenant shall not use the Premises as a
"place of public accommodation" as defined in the Americans with Disabilities
Act of 1990, which identifies he following categories into one or more of which
a business must fall to be a "place of public accommodation".
a. Places of lodging (examples: hotel, motel)
b. Establishments serving food or drink (examples: bar,
restaurant)
c. Places of exhibition or entertainment (examples:
motion picture house, theater, stadium, concert hall)
d. Places of public gathering (examples: auditorium,
convention center, lecture ball)
e. Sales or rental establishments (examples: bakery,
grocery store, hardware store, shopping center)
f. Service establishments (examples: bank, laundromat,
barber shop, funeral parlor, hospital, gas station,
business offices such as lawyer, accountant,
healthcare provider or insurance office)
g. Stations used for specified public transportation
(examples: bus terminal, depot)
h. Places of public display or collection (examples:
museum, library, gallery)
i. Places of recreation (examples: park, zoo, amusement
park)
j. Places of education (examples: nursery, elementary,
secondary, private or other undergraduate or
postgraduate school)
k. Social service center establishments (examples:
day-care center, senior citizen center, homeless
shelter, food bank, adoption agency)
l. Places of exercise or recreation (examples: gyre,
health spa, bowling alley, golf course)
(ii) Any sidewalks, lobbies, passages, elevators and stairways shall
not be obstructed or used by Tenant for any purpose other than ingress and
egress from and to the Premises. Landlord shall in all cases retain the right to
control or prevent access by all persons whose presence, in the judgment of
Landlord, shall be prejudicial to the safety, peace or character of the
Property.
(iii) The toilet rooms, toilets, urinals, sinks, faucets, plumbing or
other service apparatus of any kind shall not be used for any purpose, other
than those for which they were installed, and no sweepings, rubbish, rags,
ashes, chemicals or other refuse or injurious substances shall be placed therein
or used in connection therewith or left in any lobbies, passages, elevators or
stairways.
(iv) Tenant shall comply with all safety, fire protection and
evacuation procedures and regulations established by Landlord or any
governmental agency. No person shall go on the roof without Landlord's
permission.
(v) Skylights, windows, doors and transoms shall not be covered or
obstructed by Tenant, and Tenant shall not install any window covering which
would affect the exterior appearance of the Building, except as approved in
writing by Landlord. Tenant shall not remove, without Landlord's prior written
consent, any shades, blinds or curtains in the Premises.
(vi) Without Landlord's prior written consent, Tenant shall not hang,
install, mount, suspend or attach anything from or to any sprinkler, plumbing,
utility or other lines. If Tenant bangs, installs, mounts, suspends or attaches
anything from or to any doors, windows, walls, floors or ceilings, Tenant shall
sand and spackle all holes and repair any damage caused thereby or by the
removal thereof at or prior to the expiration or termination of the lease.
Without landlord's prior written consent, no walls or partitions shall be
painted, papered or otherwise covered or moved in any way or marked or broken;
nor shall any connection be made to electric wires for running fans or- motors
or other apparatus, devices or equipment; nor shall machinery of any kind other
than customary small business machines be allowed in the Premises; nor shall
Tenant use any other method of heating, air conditioning or air cooling than
that provided by Landlord; nor shall any mechanics be allowed to work in or
about the Building other than those employed by Landlord.
(vii) Tenant shall not change any locks nor place additional locks upon
any doors and shall surrender all keys and passes at the end of the Term.
(viii) Tenant shall not use nor keep in the Building any matter having
an offensive odor, nor explosive or highly flammable material, nor shall any
animals other than seeing eye dogs in the company of their masters be brought
into or kept in or about the Premises.
(ix) If Tenant desires to introduce electrical, signaling, telegraphic,
telephonic; protective alarm or other wires, apparatus or devices, Landlord
shall direct where and how the same are to be placed, and except as so directed,
no installation boring or cutting shall be permitted. Landlord shall have the
right to prevent and to cut off the transmission of excessive or dangerous
current of electricity or annoyances into or through the Building or the
Premises and to require the changing of wiring connections or layout at Tenant's
expense, to the extent that Landlord may deem necessary, and further to require
compliance with such reasonable rules as Landlord may establish relating
thereto, and in the event of non-compliance with the requirements or rules,
Landlord shall have the right immediately to cut wiring or to do what it
considers necessary to remove the danger, annoyance or electrical interference
with apparatus in any part of the Building. All wires installed by Tenant must
be clearly tagged at the distributing boards and junction boxes and elsewhere
where required by Landlord, with the number of the office to which said wires
lead, and the purpose for which the wises respectively are used, together with
the name of the concern, if any, operating same.
(x) Tenant shall not place weights anywhere beyond the safe carrying
capacity of the Building which is designed to normal office building standards
for floor loading capacity. Landlord shall have the right to exclude from the
Building heavy furniture, safes and other articles which way be hazardous or to
require them to be located at designated places in the Premises. Tenant shall
obtain Landlord's written consent prior to the installation of any vending
machines in the Premises.
(xi) The use of rooms as sleeping quarters is strictly prohibited at
all times.
(xii) Tenant shall have the right, at Tenant's sole risk and
responsibility, to use its proportional share of the parking spaces at the
Property as reasonably determined by Landlord. Tenant shall comply with all
parking regulations promulgated by Landlord from time to time for the orderly
use of the vehicle parking areas, including without limitation the following:
Parking shall be limited to automobiles, passenger or equivalent vans,
motorcycles, light four wheel pickup trucks and. (in designated areas) bicycles.
No vehicles shall be left in the parking lot overnight. Parked vehicles shall
not be used for vending or any other business or other activity while parked in
the parking areas, Vehicles shall be parked only in striped parking spaces,
except for loading and unloading, which shall occur solely in zones marked for
such purpose, and be so conducted as to not unreasonably interfere with traffic
Bow within the Property or with loading and unloading areas of other tenants.
Employee and tenant vehicles shall not be parked in spaces marked for visitor
parking or other specific use. All vehicles entering or parking in the parking
areas shall do so at owner's sole risk, and Landlord assumes no responsibility
for any damage, destruction, vandalism or theft. Tenant shall cooperate with
Landlord in any measures implemented by Landlord to control abuse of the parking
areas, including without (imitation access control programs, tenant and guest
vehicle identification programs, and validated parking programs, provided that
no such validated parking program shall result in Tenant being charged for
spaces to which it has a right to free use under its lease. Each vehicle owner
shall promptly respond to any sounding vehicle alarm or horn, and failure to do
so may result in temporary or permanent exclusion of such vehicle from the
parking areas. Any vehicle which violates the parking regulations may be cited,
towed at the expense of the owner, temporarily or permanently excluded from the
parking areas, or subject to other lawful consequence.
(xiii) Tenant shall not smoke in the Building which Landlord has
designated as a non-smoking building.
(xiv) Canvassing, soliciting and distribution of handbills or any other
written material, and peddling in the Building are prohibited, and Tenant shall
cooperate to prevent same.
(xv) Tenant shall provide Landlord with a written identification of any
vendors engaged by Tenant to perform services for Tenant at the Premises
(examples: security guards/monitors, telecommunications installers/maintenance).
Tenant shall permit Landlord's employees and contractors and no one else to
clean the Premises unless Landlord consents in writing. Tenant assumes all
responsibility for protecting its Premises from theft and vandalism and Tenant
shall see each day before leaving the Premises that all lights are turned out
and that the windows and the doors are closed and securely locked.
(xvi) Landlord shall provide Tenant with the move-in and move-out
policies for the Building with which Tenant shall comply. Throughout the Term no
furniture, packages, equipment, supplies or merchandise of Tenant will be
received in the Building, or carried up or down in the elevators or stairways,
except during such hours as shall be designated by Landlord, and Landlord in all
cases shall also have the exclusive right to prescribe the method and manner in
which the same shall be brought in or taken out of the Building. At the end of
the Term, Tenant's obligations regarding surrender of the Premises shall include
Tenant's obligation to shampoo all carpet strip and re-wax all vinyl composite
the and replace any damaged ceiling tiles, the cost of which obligations shall
be deducted from the Security Deposit if not completed by Tenant prior to the
Expiration Date.
(xvii) Tenant shall not place oversized cartons, crates or boxes in any
area for trash pickup without Landlord's prior approval: Landlord shall be
responsible for trash pickup of normal office refuse placed in ordinary office
trash receptacles only. Excessive amounts of trash or other out-of-the-ordinary
refuse loads will be removed by Landlord upon request at Tenant's expense.
(xviii) Tenant shall cause all of Tenant's Agents to comply with these
Building Rules.
(xix) Landlord reserves the right to rescind, suspend or modify any
rules or regulations and to snake such other rules and regulations as, in
Landlord's reasonable judgment, may from time to time be needed for the safety,
care, maintenance, operation and cleanliness of the Property. Notice of any
action by Landlord referred to in this paragraph, given to Tenant, shall have
the same force and effect as if originally made a part of the foregoing lease.
New rules or regulations will not, however, be unreasonably inconsistent with
the proper and rightful enjoyment of the Premises by Tenant under the lease.
(xx) These Building Rules arc not intended to give Tenant any rights or
claims in the event that Landlord does not enforce any of them against any other
tenants or if Landlord doe not have the right to enforce them against any other
tenants and such non-enforcement will not constitute a waiver as to Tenant.
(xxi) Tenant shall be deemed to have read these Building Rules and to
have agreed to abide by them as a condition to Tenant's occupancy of the
Premises.
EXHIBIT "D"
-----------
Liberty Property Trust
Cleaning Specifications
Office Area, Computer Rooms, Cafeterias & Lavatories
Daily: (5 Days per week)
o Empty all wastebaskets and receptacles. Replace soiled liners
o Dust all uncluttered horizontal surfaces. Desks, credenzas,
tops of cubicles, bookcases, chairs, file and storage
cabinets, tables, counters, ledges, shelves, paper and
sanitary napkin dispensers and telephones
o Vacuum all carpeted traffic areas
o Sweep all resilient tile floors with chemically treated dry
mop
o Damp mop where needed
o Damp wipe counter tops
o Remove gum, tar, and other foreign substances from floor
surfaces where visible and noted
o Clean and disinfect drinking fountains
o Clean mirrors, frames, shelves, washbasins, and soap
dispensers
o Wash and disinfect interior and exterior of all bases, bowls,
and urinals, using a combination cleaner, disinfectant
deodorizer
o Clean and disinfect shower room floors, walls, ceilings and
benches/seats
o Refill all paper products and soaps
Weekly:
o Clean baseboards
o Dust windowsills
o Dust high partitions, ledges and moldings
o Detail vacuum all carpeted areas
Monthly:
o Dust ceiling grates and vents where needed
o Spray buff tile floors where needed
o Dust window blinds
o Clean and disinfect all floor drains, ventilating grills,
exhaust fans, and ducts
Semi-Annually:
o Strip and re-finish hard surface floors where applicable
EXHIBIT "E"
-----------
TENANT ESTOPPEL CERTIFICATE
---------------------------
Please refer to the documents described in Schedule 1 hereto, (the "Lease
Documents") including the "Lease" therein described; all defined terms in. this
Certificate shall have the same meanings as set forth in the Lease unless
otherwise expressly set forth herein. The undersigned Tenant hereby certifies
that it is the tenant under the Lease. Tenant hereby further acknowledges that
it has been advised that the Lease may be collaterally assigned in connection
with a proposed financing secured by the Property and/or may be assigned in
connection with a sale of the Property and certifies both to Landlord and to any
and all prospective mortgagees and purchasers of the Property, including any
trustee on behalf of any holders of notes or other similar instruments, any
holders from time to time of such notes or other instruments, and their
respective successors and assigns (the "Mortgagees") that as of the date hereof:
1. The information set forth in attached Schedule 1 is true and
correct.
2. Tenant is in occupancy of the Premises and the Lease is in full
force and effect, and, except by such writings as arc identified on Schedule I,
has not been modified, assigned, supplemented or amended since its original
execution, nor are there any other agreements between Landlord and Tenant
concerning the Premises, whether oral or written.
3. All conditions and agreements under the Lease to be satisfied or
performed by Landlord have been satisfied and performed.
4. Tenant is not in default under the Lease Documents, Tenant has not
received any notice of default under the Lease Documents, and, to Tenant's
knowledge, there are no events which have occurred that, with the giving of
notice and/or the passage of tine, would result in a default by Tenant under the
Lease Documents.
5. Tenant has not paid any Rent due under the Lease more than 30 days
in advance of the date due under the Lease and Tenant has no rights of setoff,
counterclaim, concession or other rights of diminution of any Rent due and
payable under the Lease except as set forth in Schedule 1.
6. To Tenant's knowledge, there are no uncured defaults on the part of
Landlord under the Lease Documents, Tenant has not sent any notice of default
under the Lease Documents to Landlord, and there are no events which have
occurred that, with the giving of notice and/or the passage of time, would
result in a default by Landlord thereunder, and that at the present time Tenant
has no claim against Landlord under the Lease Documents.
7. Except as expressly set forth in Part O of Schedule 1, there arc no
provisions for any, and Tenant has no, options with respect to the Premises or
all or any portion of the Property.
8. Except as set forth on Part M of Schedule 1, no action, voluntary or
involuntary, is pending against Tenant under federal or state bankruptcy or
insolvency law.
9. The undersigned has the authority to execute and deliver this
Certificate on behalf of Tenant and acknowledges that all Mortgagees will rely
upon this Certificate in purchasing the Property or extending credit to Landlord
or its successors in interest.
10. This Certificate shall be binding upon the successors, assigns and
representatives of Tenant and any party claiming through or under Tenant and
shall inure to the benefit of all Mortgagees.
IN WITNESS WHEREOF, Tenant has executed this Certificate this ______ day of
_________________, 20___.
--------------------------------
Name of Tenant
By:_____________________________
Title:__________________________
SCHEDULE 1 TO TENANT ESTOPPEL CERTIFICATE
Lease Documents, Lease Temps and Current Status
-----------------------------------------------
A. Date of Lease; B. Parties:
1. Landlord.
2. Tenant d/b/a:
C Premises known as:
D. Modifications, Assignments, Supplements or Amendments to Lease:
E. Commencement Date:
F. Expiration of Current Term:
G. Options:
H. Security Deposit Paid to Landlord: $
I. Current Fixed Minimum Rent (Annualized): $
J. Current Additional Rent (and if applicable, Percentage Rent)
(Annualized): $
K. Current Total Rent: $
L. Square Feet remised:
M. Tenant's Bankruptcy or other Insolvency Actions:
EXHIBIT "F"
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DESCRIPTION OF IMPROVEMENTS
1. replace the missing vinyl cove base along the walls near rear exit
door and large rear office
2. relocate Tenant's existing white board and track lighting from the
Existing Premises to the Premises
3. replace all missing, damaged and stained ceiling tiles
4. touch up/repair front entrance doors
5. provide janitorial service prior to move-in
6. install light in. rear exit door hallway
7. replace all missing heater control knobs
8. replace all missing doors
EXHIBIT "G"
LIST OF FURNITURE
120 Gibraltar Road
Suite 107 Inventory
EXHIBIT "G"
LIST OF FURNITURE
QUANTITY DESCRIPTION
1 Conference Room Table
1 Small Conference Room Table
1 Office Workstation
1 Round Table
2 Coat Rack
2 6' Table
2 File Cabinet
2 Coffee Makers
3 Storage Cabinets (Metal)
4 Book Cabinet
5 Cubicle Chairs
5 Executive Desk
5 Credenza
6 Cubicle Workstations
6 Conference Room Chairs (Red)
7 Pictures
8 Desk
9 Conference Room Chairs (Black)
26 Chairs