Exhibit 10.21
OFFICE LEASE
between
FOSTER PLAZA HOLDING CORP.,
a Pennsylvania corporation
(Landlord)
and
IGATE CAPITAL, INC.,
a Delaware corporation
(Tenant)
TABLE OF CONTENTS
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OFFICE LEASE
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Article Title Page
- ------- ----- ----
1 Definitions 1
2 Premises 2
3 Term 2
4 Rental 2
5 Security Deposit 5
6 Use of Premises 5
7 Utilities and Services 6
8 Maintenance and Repairs 7
9 Alterations, Additions and Improvements 8
10 Indemnification and Insurance 9
11 Damage or Destruction 10
12 Condemnation 11
13 Relocation 11
14 Assignment and Subletting 11
15 Default and Remedies 13
16 Attorneys' Fees; Costs of Suits 16
17 Subordination and Attornment 16
18 Quiet Enjoyment 17
19 Rules and Regulations 17
20 Estoppel Certificates 17
21 Entry by Landlord 18
22 Landlord's Lease Undertakings-Exculpation from 18
Personal Liability; Transfer of Landlord's Interest
23 Holdover Tenancy 18
24 Notices 18
25 Brokers 19
26 Electronic Services 19
27 Miscellaneous 20
EXHIBITS
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Exhibit A Floor Plan
Exhibit B Work Letter Agreement
Exhibit C Rules and Regulations
Exhibit D Omitted
Exhibit E Suite Acceptance Agreement
OFFICE LEASE
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THIS OFFICE LEASE ("Lease"), dated June 8, 2000, is made and entered into
by and between FOSTER PLAZA HOLDING CORP., a Pennsylvania corporation
("Landlord") and IGATE CAPITAL, INC., a Delaware corporation ("Tenant") upon the
following terms and conditions:
ARTICLE I - DEFINITIONS
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Unless the context otherwise specifies or requires, the following terms
shall have the meanings specified herein;
1.01 Building. The term "Building" shall mean that certain office
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building located at:
680 Andersen Drive, Pittsburgh, PA 15220 commonly known as FOSTER PLAZA X
together with any related land, improvements, parking facilities, common areas,
driveways, sidewalks and landscaping.
1.02 Premises. The term "Premises" shall mean Suite 500 in the Building,
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as more particularly outlined on the drawing attached hereto as Exhibit A and
incorporated herein by reference. As used herein, "Premises" shall not include
any storage area in the Building, which shall be leased or rented pursuant to
separate agreement.
1.03 Rentable Area of the Premises. The term "Rentable Area of the
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Premises" shall mean 12,895 square feet, which Landlord and Tenant have
stipulated as the Rentable Area of the Premises. Tenant acknowledges that the
Rentable Area of the Premises includes the usable area, without deduction for
columns or projections, multiplied by a load factor to reflect a share of
certain areas, which may include lobbies, corridors, mechanical, utility,
janitorial, boiler and service rooms and closets, restrooms and other public,
common and service areas of the Building.
1.04 Lease Term. The term "Lease Term" shall mean the period between the
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Commencement Date and the Expiration Date (as such terms are hereinafter
defined), unless sooner terminated as otherwise provided in this Lease.
1.05 Commencement Date. Subject to adjustment as provided in Article 3,
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the term "Commencement Date" shall mean September 1, 2000.
1.06 Expiration Date. Subject to adjustment as provided in Article 3,
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the term "Expiration Date" shall mean August 31, 2006.
1.07 Base Rent. Subject to adjustment as provided in Article 4, the term
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"Base Rent" shall mean
Twenty Four Thousand Seven Hundred Fifteen and 42/100 Dollars ($24,715.42) per
month.
1.08 Tenant's Percentage Share. The term "Tenant's Percentage Share"
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shall mean Eight and 62/100 percent (8.25%) with respect to increases in
Property Taxes and Operating Expenses (as such terms are hereinafter defined).
Landlord may reasonably redetermine Tenant's Percentage Share from time to time
to reflect reconfigurations, additions or modifications to the Building.
1.09 Security Deposit. Omitted
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1.10 Tenant's Permitted Use. The term "Tenant's Permitted Use" shall
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mean general office use and no other use.
1.11 Business Hours. The term "Business Hours" shall mean the hours of
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8:00 A.M. to 6:00 P.M., Monday through Friday and 9:00 A.M to 1:00 P.M.
Saturdays (federal and state holidays excepted). Holidays are defined as the
following: New Years Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day, and to the extent of utilities or services
provided by union members engaged at the Building, such other holidays observed
by such unions.
1.12 Landlord's Address For Notices. The term "Landlord's Address for
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Notices" shall mean Kennedy-Wilson Pennsylvania Management Inc., 680 Andersen
Drive, Pittsburgh, Pennsylvania 15220-2700, Attn: Property Manager, with
copies to Kennedy-Wilson Properties Ltd., 900 North Michigan Avenue, Suite 1800,
Chicago, Illinois 60611, Attn: Property Management and Heitman Capital
Management LLC, 180 North LaSalle Street, Suite 3600, Chicago, Illinois 60601,
Attn: Chief Operating Officer.
1.13 Tenant's Address for Notices. The term "Tenant's Address for
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Notices" shall mean
680 Andersen Drive, Pittsburgh, PA 15220, ATTN: Chief Financial Officer.
1.14 Broker. The term "Broker" shall mean Kennedy-Wilson Pennsylvania
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Management Inc and the Gustine Company.
1.15 Guarantor. Omitted.
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ARTICLE II - PREMISES
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2.01 Lease of Premises. Landlord hereby leases the Premises to Tenant,
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and Tenant hereby leases the Premises from Landlord, upon all of the terms,
covenants and conditions contained in this Lease. On the Commencement Date
described herein, Landlord shall deliver the Premises to Tenant in substantial
conformance with the Work Letter Agreement attached hereto as Exhibit B.
2.02 Acceptance of Premises. Tenant acknowledges that Landlord has not
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made any representation or warranty with respect to the condition of the
Premises or the Building or with respect to the suitability or fitness of either
for the conduct of Tenant's Permitted Use or for any other purpose. Prior to
Tenant's taking possession of the Premises, Landlord or its designee and Tenant
will walk the Premises for the purpose of reviewing the condition of the
Premises (and the condition of completion and workmanship of any tenant
improvements which Landlord is required to construct in the Premises pursuant to
this Lease); after such review, Tenant shall execute a Suite Acceptance Letter,
in the form of Exhibit E attached hereto, accepting the Premises. Except as is
expressly set forth in this Section 2.02 or the Work Letter Agreement attached
hereto, if any, or as may be expressly set forth in Suite Acceptance Letter,
Tenant agrees to accept the Premises in its "as is" said physical condition
without any agreements, representations, understandings or obligations on the
part of Landlord to perform any alterations, repairs or improvements (or to
provide any allowance for same).
ARTICLE III - TERM
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3.01 Except as otherwise provided in this Lease, the Lease Term shall be
for the period described in Section 1.04 of this Lease, commencing on the
Commencement Date described in Section 1.05 of this Lease and ending on the
Expiration Date described in Section 1.06 of this Lease; provided, however,
that, if, for any reason, Landlord is unable to deliver possession of the
Premises on the date described in Section 1.05 of this Lease, Landlord shall not
be liable for any damage caused thereby, nor shall the Lease be void or
voidable, but, rather, the Lease Term shall commence upon, and the Commencement
Date shall be the date that possession of the Premises is so tendered to Tenant
(except for Tenant-caused delays which shall not be deemed to delay commencement
of the Lease Term), and, unless Landlord elects otherwise, the Expiration Date
described in Section 1.06 of this Lease shall be extended by an equal number of
days.
ARTICLE IV - RENTAL
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4.01 Definitions. As used herein,
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(A) "Base Year" shall mean the 2001 calendar year.
(B) "Property Taxes" shall mean the aggregate amount of all real estate
taxes, assessments (whether they be general or special), sewer rents and
charges, transit taxes, taxes based upon the receipt of rent and any other
federal, state or local governmental charge, general, special, ordinary or
extraordinary (but not including income or franchise taxes, capital stock,
inheritance, estate, gift, or any other taxes imposed upon or measured by
Landlord's gross income or profits, unless the same shall be imposed in lieu of
real estate taxes or other ad valorem taxes), which Landlord shall pay or become
obligated to pay in connection with the Building, or any part thereof. Property
Taxes shall also include all fees and costs, including attorneys' fees,
appraisals and consultants' fees, incurred by Landlord in seeking to obtain a
reassessment, reduction of, or a limit on the increase in, any Property Taxes,
regardless of whether any reduction or limitation is obtained. Property Taxes
for any calendar year shall be Property Taxes which are due for payment or paid
in such year, rather than Property Taxes which are assessed or become a lien
during such year. Property Taxes shall include any tax, assessment, levy,
imposition or charge imposed upon Landlord and measured by or based in whole or
in part upon the Building or the rents or other income from the Building, to the
extent that such items would be payable if the Building was the only property of
Landlord subject to same and the income received by Landlord from the Building
was the only income of Landlord. Property Taxes shall also include any personal
property taxes imposed upon the furniture, fixtures, machinery, equipment,
apparatus, systems and appurtenances of Landlord used in connection with the
Building.
(C) "Operating Expenses" shall mean all costs, fees, disbursements and
expenses paid or incurred by or on behalf of Landlord in the operation,
ownership, maintenance, insurance, management, replacement and repair of the
Building (excluding Property Taxes) including without limitation:
(i) Premiums for property, casualty, liability, rent interruption or other
types of insurance carried by Landlord.
(ii) Salaries, wages and other amounts paid or payable for personnel
including the Building manager, superintendent, operation and maintenance staff,
and other employees of Landlord involved in the maintenance and operation of
the Building, including contributions and premiums towards fringe benefits,
unemployment, disability and worker's compensation insurance, pension plan
contributions and similar premiums and contributions and the total charges of
any independent contractors or property managers engaged in the operation,
repair, care, maintenance and cleaning of any portion of the Building.
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(iii) Cleaning expenses, including without limitation janitorial services,
window cleaning, and garbage and refuse removal.
(iv) Landscaping expenses, including without limitation irrigating,
trimming, mowing, fertilizing, seeding, and replacing plants.
(v) Heating, ventilating, air conditioning and steam/utilities expenses,
including fuel, gas, electricity, water, sewer, telephone, and other services.
(vi) Subject to the provisions of Section 4.01(C)(xii) below, the cost of
maintaining, operating, repairing and replacing components of equipment or
machinery, including without limitation heating, refrigeration, ventilation,
electrical, plumbing, mechanical, elevator, sprinklers, fire/life safety,
security and energy management systems, including service contracts, maintenance
contracts, supplies and parts.
(vii) Other items of repair or maintenance of elements of the Building.
(viii) The costs of policing, security and supervision of the Building.
(ix) Fair market rental and other costs with respect to the management
office for the Building.
(x) The cost of the rental of any machinery or equipment and the cost of
supplies used in the maintenance and operation of the Building.
(xi) Audit fees and the cost of accounting services incurred in the
preparation of statements referred to in this Lease and financial statements,
and in the computation of the rents and charges payable by tenants of the
Building.
(xii) Capital expenditures (a) made primarily to reduce Operating
Expenses, or to comply with any laws or other governmental requirements, or (b)
for replacements (as opposed to additions or new improvements) of non-structural
items located in the common areas of the property required to keep such areas in
good condition; provided, all such permitted capital expenditures (together with
reasonable financing charges) shall be amortized for purposes of this Lease over
the shorter of (i) their useful lives, (ii) the period during which the
reasonably estimated savings in Operating Expenses equals the expenditures, or
(iii) three (3) years.
(xiii) Legal fees and expenses.
(xiv) Payments under any easement, operating agreement, declaration,
restrictive covenant, or instrument pertaining to the sharing of costs in any
planned development.
(xv) A fee for the administration and management of the Building as
reasonably determined by Landlord from time to time and similar to those being
charged for similar properties located in the Pittsburgh Parkway West corridor.
Operating Expenses shall not include costs of alteration of the premises of
tenants of the Building, depreciation charges, interest and principal payments
on mortgages, ground rental payments, real estate brokerage and leasing
commissions, expenses incurred in enforcing obligations of tenants of the
Building, salaries and other compensation of executive officers of the managing
agent of the Building senior to the Building manager, costs of any special
service provided to any one tenant of the Building but not to tenants of the
Building generally, and costs of marketing or advertising the Building.
(D) If the Building does not have one hundred percent (100%) occupancy
during an entire calendar year, including the Base Year, then the variable cost
component of "Property Taxes" and "Operating Expenses" shall be equitably
adjusted so that the total amount of Property Taxes and Operating Expenses
equals the total amount which would have been paid or incurred by Landlord had
the Building been one hundred percent (100%) occupied for the entire calendar
year. In no event shall Landlord be entitled to receive from Tenant and any
other tenants in the Building an aggregate amount in excess of actual Property
Taxes and Operating Expenses as a result of the foregoing provision(s).
4.02 Base Rent.
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(A) During the Lease Term, Tenant shall pay to Landlord as rental for the
Premises the Base Rent described in Section 1.07 above, subject to the following
annual adjustments (herein called the "Rent Adjustments"):
(B) During each calendar year, the Base Rent payable by Tenant to
Landlord shall be increased by (collectively, the "Tax and Operating Expense
Adjustment"): (i) Tenant's Percentage Share of the dollar increase, if any, in
Property Taxes for such year over Property Taxes for the Base Year; and (i)
Tenant's Percentage Share of the dollar increase, if any, in Operating Expenses
paid or incurred by Landlord during such year over the Operating Expenses paid
or incurred by Landlord during the Base Year. In the event that there is a
decrease in Property Taxes or Operating Expenses (in any subsequent year after
an increase), the Tenant's Base Rent shall be reduced by (i) Tenant's Percentage
Share of the dollar decrease, if any, in Property Taxes (i) Tenant's Percentage
Share of the dollar decrease, if any, in Property Taxes. Notwithstanding
anything in the previous sentence to the
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contrary, a decrease in Property Taxes or any Operating Expenses below the Base
Year amounts shall not decrease the amount of the Base Rent due hereunder or
give rise to a credit in favor of Tenant.
4.03 Adjustment Procedure; Estimates. The Tax and Operating Expense
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Adjustment specified in Section 4.02(B) shall be determined and paid as follows:
(A) During each calendar year subsequent to the Base Year, Landlord shall
give Tenant written notice of its estimate of any increased amounts payable
under Section 4.02(B) for that calendar year. On or before the first day of
each calendar month during the calendar year, Tenant shall pay to Landlord one-
twelfth (1/12th) of such estimated amounts; provided, however, that, not more
often than quarterly, Landlord may, by written notice to Tenant, revise its
estimate for such year, and subsequent payments by Tenant for such year shall be
based upon such revised estimate.
(B) Within one hundred twenty (120) days after the close of each calendar
year or as soon thereafter as is practicable, Landlord shall deliver to Tenant a
statement of that year's Property Taxes and Operating Expenses, and the actual
Tax and Operating Expense Adjustment to be made pursuant to Section 4.02(B) for
such calendar year, as determined by Landlord (the "Landlord's Statement") and
such Landlord's Statement shall be binding upon Tenant, except as provided in
Section 4.04 below. If the amount of the actual Tax and Operating Expense
Adjustment is more than the estimated payments for such calendar year made by
Tenant, Tenant shall pay the deficiency to Landlord upon receipt of Landlord's
Statement. If the amount of the actual Tax and Operating Expense Adjustment is
less than the estimated payments for such calendar year made by Tenant, any
excess shall be credited against Rent (as hereinafter defined) next payable by
Tenant under this Lease or, if the Lease Term has expired, any excess shall be
paid to Tenant. No delay in providing the statement described in this
subparagraph (B) shall act as a waiver of Landlord's right to payment under
Section 4.02(B) above.
(C) If this Lease shall terminate on a day other than the end of a
calendar year, the amount of the Tax and Operating Expense Adjustment to be paid
pursuant to Section 4.02(B) that is applicable to the calendar year in which
such termination occurs shall be prorated on the basis of the number of days
from January 1 of the calendar year to the termination date bears to 365. The
termination of this Lease shall not affect the obligations of Landlord and
Tenant pursuant to Section 4.03(B) to be performed after such termination.
4.04 Review of Landlord's Statement. Provided that Tenant is not then in
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default beyond any applicable cure period of its obligations to pay Base Rent,
additional rent described in Section 4.02(B), or any other payments required to
be made by it under this Lease and provided further that Tenant strictly
complies with the provisions of this Section 4.04, Tenant shall have the right,
once each calendar year, to reasonably review supporting data for any portion of
a Landlord's Statement (provided, however, Tenant may not have an audit right to
all documentation relating to Building operations as this would far exceed the
relevant information necessary to properly document a pass-through billing
statement, but real estate tax statements, and information on utilities,
repairs, maintenance, insurance and all other reasonably necessary materials
will be available), in accordance with the following procedure:
(A) Tenant shall, within thirty (30) days after any such Landlord's
Statement is delivered, deliver a written notice to Landlord specifying that
Tenant wishes to review Landlord's Statement, and Tenant shall simultaneously
pay to Landlord all amounts due from Tenant to Landlord as specified in the
Landlord's Statement. Except as expressly set forth in subsection (C) below, in
no event shall Tenant be entitled to withhold, deduct, or offset any monetary
obligation of Tenant to Landlord under the Lease (including, without limitation,
Tenant's obligation to make all payments of Base Rent and all payments of
Tenant's Tax and Operating Expense Adjustment) pending the completion of and
regardless of the results of any review of records under this Section 4.04. The
right of Tenant under this Section 4.04 may only be exercised once for any
Landlord's Statement, and if Tenant fails to meet any of the above conditions as
a prerequisite to the exercise of such right, the right of Tenant under this
Section 4.04 for a particular Landlord's Statement shall be deemed waived.
(B) Tenant acknowledges that Landlord maintains its records for the
Building at Landlord's manager's corporate offices presently located at the
address set forth in Section 1.12 and Tenant agrees that any review of records
under this Section 4.04 shall be at the sole expense of Tenant and shall be
conducted by an independent firm of certified public accountants of national
standing. Tenant acknowledges and agrees that any records reviewed under this
Section 4.04 constitute confidential information of Landlord, which shall not be
disclosed to anyone other than the accountants performing the review and the
principals of Tenant who receive the results of the review. The disclosure of
such information to any other person, whether or not caused by the conduct of
Tenant, shall constitute a material breach of this Lease.
(C) Any errors disclosed by the review shall be promptly corrected by
Landlord, provided, however, that if Landlord disagrees with any such claimed
errors, Landlord shall have the right to cause another review to be made by an
independent firm of certified public accountants of national standing. In the
event that the results of the review of records (taking into account, if
applicable, the results of any additional review caused by Landlord) reveal that
Tenant has overpaid obligations for a preceding period, the amount of such
overpayment shall be credited against Tenant's subsequent installment
obligations to pay the estimated Tax and Operating Expense Adjustment and if
Tenant has over paid by more than 5%, the actual reasonable cost of Tenant's
review shall be credited. In the event that such results show that Tenant has
underpaid its obligations for a preceding period, Tenant shall be liable for
Landlord's actual accounting fees, and the amount of such underpayment shall be
paid by Tenant to Landlord with the next succeeding installment obligation of
estimated Tax and Operating Expense Adjustment.
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4.05 Payment. Concurrently with the execution hereof, Tenant shall pay
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Landlord Base Rent for the first calendar month of the Lease Term. Thereafter
the Base Rent described in Section 1.07, as adjusted in accordance with Section
4.02, shall be payable in advance on the first day of each calendar month. If
the Commencement Date is other than the first day of a calendar month, the
prepaid Base Rent for such partial month shall be prorated in the proportion
that the number of days this Lease is in effect during such partial month bears
to the total number of days in the calendar month. All Rent, and all other
amounts payable to Landlord by Tenant pursuant to the provisions of this Lease,
shall be paid to Landlord, without notice, demand, abatement, deduction or
offset, in lawful money of the United States at Landlord's office in the
Building or to such other person or at such other place as Landlord may
designate from time to time by written notice given to Tenant. No payment by
Tenant or receipt by Landlord of a lesser amount than the correct Rent due
hereunder shall be deemed to be other than a payment on account; nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment be deemed to effect or evidence an accord and satisfaction; and Landlord
may accept such check or payment without prejudice to Landlord's right to
recover the balance or pursue any other remedy in this Lease or at law or in
equity provided.
4.06 Late Charge; Interest. Tenant acknowledges that the late payment of
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Base Rent or any other amounts payable by Tenant to Landlord hereunder (all of
which shall constitute additional rental to the same extent as Base Rent) will
cause Landlord to incur administrative costs and other damages, the exact amount
of which would be impracticable or extremely difficult to ascertain. Landlord
and Tenant agree that if Landlord does not receive any such payment on or before
five (5) days after the date the payment is due, Tenant shall pay to Landlord,
as additional rent, (a) a late charge equal to three percent (3%) of the overdue
amount to cover such additional administrative costs; and (b) interest on the
delinquent amounts at the lesser of the maximum rate permitted by law if any or
twelve percent (12%) per annum from the date due to the date paid.
4.07 Additional Rent. For purposes of this Lease, all amounts payable by
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Tenant to Landlord pursuant to this Lease, whether or not denominated as such,
shall constitute Base Rent. Any amounts due Landlord shall sometimes be
referred to in this Lease as "Rent".
4.08 Rent Taxes. Notwithstanding anything in Sections 4.01(B) to the
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contrary, Tenant shall pay any rent, sales, service, transfer or value added
tax, or any other applicable tax on the Rent or services herein or otherwise
respecting this Lease (and such taxes shall not be included in Property Taxes).
ARTICLE V - SECURITY DEPOSIT
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5.01 Omitted.
ARTICLE VI - USE OF PREMISES
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6.01 Tenants Permitted Use. Tenant shall use the Premises only for
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Tenant's Permitted Use as set forth in Section 1.10 above and shall not use or
permit the Premises to be used for any other purpose. Tenant shall, at its sole
cost and expense, obtain all governmental licenses and permits required to allow
Tenant to conduct Tenant's Permitted Use. Landlord disclaims any warranty that
the Premises are suitable for Tenant's use and Tenant acknowledges that it has
had a full opportunity to make its own determination in this regard.
6.02 Compliance With Laws and Other Requirements.
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(A) Tenant shall cause the Premises (with Landlord's assistance at no
cost to Landlord) to comply in all material respects with all laws, ordinances,
regulations and directives of any governmental authority having jurisdiction
including, without limitation, any certificate of occupancy and any law,
ordinance, regulation, covenant, condition or restriction affecting the Building
or the Premises which in the future may become applicable to the Premises
(collectively "Applicable Laws").
(B) Tenant shall not use the Premises, or permit the Premises to be used,
in any manner which: (a) violates any Applicable Law; (b) causes or is
reasonably likely to cause damage to the Building or the Premises; (c) violates
a requirement or condition of any fire and extended insurance policy covering
the Building and/or the Premises, or increases the cost of such policy; (d)
constitutes or is reasonably likely to constitute a nuisance, annoyance or
inconvenience to other tenants or occupants of the Building or its equipment,
facilities or systems; (e) interferes with, or is reasonably likely to interfere
with, the transmission or reception of microwave, television, radio, telephone
or other communication signals by antennae or other facilities located in the
Building; or (f) violates the Rules and Regulations described in Article XIX.
6.03 Hazardous Materials.
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(A) No Hazardous Materials, as defined herein, shall be Handled, as also
defined herein, upon, about, above or beneath the Premises or any portion of the
Building by or on behalf of Tenant, its subtenants or its assignees, or their
respective contractors, clients, officers, directors, employees, agents, or
invitees. Any such Hazardous Materials so Handled shall be known as Tenant's
Hazardous Materials. Notwithstanding the foregoing, normal quantities of
Tenant's Hazardous Materials customarily used in the conduct of general
administrative and executive office activities (e.g., copier fluids and cleaning
supplies) may be Handled at the Premises without Landlord's prior written
consent. Tenant's Hazardous Materials shall be Handled at all times in
compliance with the manufacturer's instructions therefor and all applicable
Environmental Laws, as defined herein.
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(B) Notwithstanding the obligation of Tenant to indemnify Landlord
pursuant to this Lease, Tenant shall, at its sole cost and expense, promptly
take all actions required by any Regulatory Authority, as defined herein, or
necessary for Landlord to make full economic use of the Premises or any portion
of the Building, which requirements or necessity arises from the Handling of
Tenant's Hazardous Materials upon, about, above or beneath the Premises or any
portion of the Building. Such actions shall include, but not be limited to, the
investigation of the environmental condition of the Premises or any portion of
the Building, the preparation of any feasibility studies or reports and the
performance of any cleanup, remedial, removal or restoration work. Tenant shall
take all actions necessary to restore the Premises or any portion of the
Building to the condition existing prior to the introduction of Tenant's
Hazardous Materials, notwithstanding any less stringent standards or remediation
allowable under applicable Environmental Laws. Tenant shall nevertheless obtain
Landlord's written approval prior to undertaking any actions required by this
Section, which approval shall not be unreasonably withheld so long as such
actions would not potentially have a material adverse long-term or short-term
effect on the Premises or any portion of the Building.
(C) Tenant agrees to execute affidavits, representations, and the like
from time to time at Landlord's request stating Tenant's best knowledge and
belief regarding the presence of Hazardous Materials on the Premises.
(D) "Environmental Laws" means and includes all now and hereafter
existing statutes, laws, ordinances, codes, regulations, rules, rulings, orders,
decrees, directives, policies and requirements by any Regulatory Authority
regulating, relating to, or imposing liability or standards of conduct
concerning public health and safety or the environment.
(E) "Hazardous Materials" means: (a) any material or substance: (i)
which is defined or becomes defined as a "hazardous substance," "hazardous
waste," "infectious waste," "chemical mixture or substance," or "air pollutant"
under Environmental Laws; (ii) containing petroleum, crude oil or any fraction
thereof; (iii) containing polychlorinated biphenyls (PCB's); (iv) containing
asbestos; (v) which is radioactive; (vi) which is infectious; or (b) any other
material or substance displaying toxic, reactive, ignitable or corrosive
characteristics, as all such terms are used in their broadest sense, and are
defined, or become defined by Environmental Laws; or (c) materials which cause a
nuisance upon or waste to the Premises or any portion of the Building.
(F) "Handle," "handle," "Handled," "handled," "Handling," or "handling"
shall mean any installation, handling, generation, storage, treatment, use,
disposal, discharge, release, manufacture, refinement, presence, migration,
emission, abatement, removal, transportation, or any other activity of any type
in connection with or involving Hazardous Materials.
(G) "Regulatory Authority" shall mean any federal, state or local
governmental agency, commission, board or political subdivision.
ARTICLE VII - UTILITIES AND SERVICES
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7.01 Building Services. As long as Tenant is not in monetary default
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under this Lease, Landlord agrees to furnish or cause to be furnished to the
Premises the following utilities and services, subject to the conditions and
standards set forth herein:
(A) Non-attended automatic elevator service in common with Landlord and
other tenants and occupants and their agents and invitees.
(B) During Business Hours, such air conditioning, heating and ventilation
as, in Landlord's reasonable judgment, are required for the comfortable use and
occupancy of the Premises. Landlord may make available to Tenant heating,
ventilation or air conditioning in excess of that which Landlord shall be
required to provide hereunder upon such conditions as shall be determined by
Landlord from time to time. Landlord's fee for any such additional heating,
ventilation or air conditioning provided to Tenant, to be set by Landlord from
time to time, will be separate from and in addition to the Tax and Operating
Expenses Adjustment provide in Article IV.
(C) Water for drinking and rest room purposes.
(D) Reasonable janitorial and cleaning services, provided that the
Premises are used exclusively for office purposes and are kept reasonably in
order by Tenant. If the Premises are not used exclusively as offices, Landlord,
at Landlord's sole discretion, may require that the Premises be kept clean and
in order by Tenant, at Tenant's expense, to the satisfaction of Landlord and by
persons approved by Landlord; and, in all events, Tenant shall pay to Landlord
the cost of removal of Tenant's refuse and rubbish, to the extent that the same
exceeds the refuse and rubbish attendant to normal office usage.
(E) At all reasonable times, electric current of not less than 5 watts
per square foot for building standard lighting and fractional horsepower office
machines; provided, however, that (i) without Landlord's consent, Tenant shall
not install, or permit the installation, in the Premises of any computers, word
processors, electronic data processing equipment or other type of equipment or
machines which will increase Tenant's use of electric current in excess of that
which Landlord is obligated to provide hereunder (provided, however, that the
6
foregoing shall not preclude the use of personal computers or similar office
equipment); (ii) if Tenant shall require electric current which may disrupt the
provision of electrical service to other tenants, Landlord may refuse to grant
its consent or may condition its consent upon Tenant's payment of the cost of
installing and providing any additional facilities required to furnish such
excess power to the Premises and upon the installation in the Premises of
electric current meters to measure the amount of electric current consumed, in
which latter event Tenant shall pay for the cost of such meter(s) and the cost
of installation, maintenance and repair thereof, as well as for all excess
electric current consumed at the rates charged by the applicable local public
utility, plus a reasonable amount to cover the additional expenses incurred by
Landlord in keeping account of the electric current so consumed; and (iii) if
Tenant's increased electrical requirements will materially affect the
temperature level in the Premises or the Building, Landlord's consent may be
conditioned upon Tenant's requirement to pay such amounts as will be incurred by
Landlord to install and operate any machinery or equipment necessary to restore
the temperature level to that otherwise required to be provided by Landlord,
including but not limited to the cost of modifications to the air conditioning
system. Landlord shall not, in any way, be liable or responsible to Tenant for
any loss or damage or expense which Tenant may incur or sustain if, for any
reasons beyond Landlord's reasonable control, either the quantity or character
of electric service is changed or is no longer available or suitable for
Tenant's requirements. Tenant covenants that at all times its use of electric
current shall never exceed the capacity of the feeders, risers or electrical
installations of the Building. If submetering of electricity in the Building
will not be permitted under future laws or regulations, the Rent will then be
equitably and periodically adjusted to include an additional payment to Landlord
reflecting the cost to Landlord for furnishing electricity to Tenant in the
Premises.
Any amounts which Tenant is required to pay to Landlord pursuant to this
Section 7.01 shall be payable upon demand by Landlord and shall constitute
additional rent.
7.02 Interruption of Services. Landlord shall not be liable for any
-------------------------
failure to furnish, stoppage of, or interruption in furnishing any of the
services or utilities described in Section 7.01, when such failure is caused by
accident, breakage, repairs, strikes, lockouts, labor disputes, labor
disturbances, governmental regulation, civil disturbances, acts of war,
moratorium or other governmental action, or any other cause beyond Landlord's
reasonable control, and, in such event, Tenant shall not be entitled to any
damages nor shall any failure or interruption abate or suspend Tenant's
obligation to pay Base Rent and additional rent required under this Lease or
constitute or be construed as a constructive or other eviction of Tenant.
Further, in the event any governmental authority or public utility promulgates
or revises any law, ordinance, rule or regulation, or issues mandatory controls
or voluntary controls relating to the use or conservation of energy, water, gas,
light or electricity, the reduction of automobile or other emissions, or the
provision of any other utility or service, Landlord may take any reasonably
appropriate action to comply with such law, ordinance, rule, regulation,
mandatory control or voluntary guideline and Tenant's obligations hereunder
shall not be affected by any such action of Landlord. The parties acknowledge
that safety and security devices, services and programs provided by Landlord, if
any, while intended to deter crime and ensure safety, may not in given instances
prevent theft or other criminal acts, or ensure safety of persons or property.
The risk that any safety or security device, service or program may not be
effective, or may malfunction, or be circumvented by a criminal, is assumed by
Tenant with respect to Tenant's property and interests, and Tenant shall obtain
insurance coverage to the extent Tenant desires protection against such criminal
acts and other losses, as further described in this Lease. Tenant agrees to
cooperate in any reasonable safety or security program developed by Landlord or
required by Law.
Notwithstanding anything to the contrary in the Lease, if: (a) any services or
utilities are interrupted or discontinued as a result of Landlord's negligence,
and Tenant is unable to and does not use, the Premises as a result of such
interruption or discontinuance, and (b) Tenant shall have given written notice
respecting such interruption or discontinuance to Landlord, and Landlord shall
have failed to cure such interruption or discontinuance within ten (10)
consecutive days after receiving such notice, or such additional time as may be
required due to acts of God, force majeure, casualty damage, strikes, shortages
of labor or materials, or other causes beyond Landlord's reasonable control,
Rent hereunder shall thereafter be abated until such time as such services or
utilities are restored or Tenant begins using the Premises again, whichever
shall first occur. Such abatement of Rent shall be Tenant's sole recourse in
the event of a discontinuance or interruption of services or utilities required
to be provided by Landlord hereunder. Notwithstanding the foregoing, in
recognition that Landlord must receive timely payments of Rent in order to
operate the Property, Tenant shall have no right to abate Rent unless and until
Tenant shall have first obtained a valid judgment by a court of competent
jurisdiction finding that the foregoing grounds for an abatement of Rent have
been present, and fixing the amount of Rent abatement to which Tenant is
entitled.
ARTICLE VIII - MAINTENANCE AND REPAIRS
--------------------------------------
8.01 Landlord's Obligations. Except as provided in Sections 8.02 and
-----------------------
8.03 below, Landlord shall maintain the Building in reasonable order and repair
throughout the Lease Term; provided, however, that Landlord shall not be liable
for any failure to make any repairs or to perform any maintenance unless such
failure shall persist for an unreasonable time after written notice of the need
for such repairs or maintenance is given to Landlord by Tenant. Except as
provided in Section 7.02 and Section 11.02, there shall be no abatement of Rent,
nor shall there be any liability of Landlord, by reason of any injury or
inconvenience to, or interference with, Tenant's business or operations arising
from the making of, or failure to make, any maintenance or repairs in or to any
portion of the Building.
7
8.02 Tenant's Obligations. During the Lease Term, Tenant shall, at its
---------------------
sole cost and expense, maintain the Premises in good order and repair
(including, without limitation, the carpet, wall-covering, doors, plumbing and
other fixtures, equipment, alterations and improvements, whether installed by
Landlord or Tenant). Further, Tenant shall be responsible for, and upon demand
by Landlord shall promptly reimburse Landlord for, any damage to any portion of
the Building or the Premises caused by (a) Tenant's activities in the Building
or the Premises; (b) the performance or existence of any alterations, additions
or improvements made by Tenant in or to the Premises; (c) the installation, use,
operation or movement of Tenant's property in or about the Building or the
Premises; or (d) any act or omission by Tenant or its officers, partners,
employees, agents, contractors or invitees.
8.03 Landlord's Rights. Landlord and its contractors shall have the
------------------
right, at all reasonable times and upon prior oral or telephonic notice to
Tenant at the Premises, other than in the case of any emergency in which case no
notice shall be required, to enter upon the Premises to make any repairs to the
Premises or the Building reasonably required or deemed reasonably necessary by
Landlord and to erect such equipment, including scaffolding, as is reasonably
necessary to effect such repairs. The Landlord will make reasonable efforts to
limit interference with Tenant's occupancy of the Premises.
ARTICLE IX - ALTERATIONS, ADDITIONS AND IMPROVEMENTS
----------------------------------------------------
9.01 Landlord's Consent; Conditions. Tenant shall not make or permit to
-------------------------------
be made any alterations, additions, or improvements in or to the Premises
("Alterations") without the prior written consent of Landlord, which consent,
with respect to non-structural alterations, shall not be unreasonably withheld.
Landlord may impose as a condition to making any Alterations such requirements
as Landlord in its sole discretion deems necessary or desirable including
without limitation: Tenant's submission to Landlord, for Landlord's prior
written approval, of all plans and specifications relating to the Alterations;
Landlord's prior written approval of the time or times when the Alterations are
to be performed; Landlord's prior written approval of the contractors and
subcontractors performing work in connection with the Alterations; employment of
union contractors and subcontractors who shall not cause labor disharmony;
Tenant's receipt of all necessary permits and approvals from all governmental
authorities having jurisdiction over the Premises prior to the construction of
the Alterations; Tenant's delivery to Landlord of such bonds and insurance as
Landlord shall reasonably require; and Tenant's payment to Landlord of all costs
and expenses incurred by Landlord because of Tenant's Alterations, including but
not limited to costs incurred in reviewing the plans and specifications for, and
the progress of, the Alterations. Tenant is required to provide Landlord
written notice of whether the Alterations include the Handling of any Hazardous
Materials and whether these materials are of a customary and typical nature for
industry practices. Upon completion of the Alterations, Tenant shall provide
Landlord with copies of as-built plans. Neither the approval by Landlord of
plans and specifications relating to any Alterations nor Landlord's supervision
or monitoring of any Alterations shall constitute any warranty by Landlord to
Tenant of the adequacy of the design for Tenant's intended use or the proper
performance of the Alterations.
9.02 Performance of Alterations Work. All work relating to the
--------------------------------
Alterations shall be performed in compliance with the plans and specifications
approved by Landlord, all applicable laws, ordinances, rules, regulations and
directives of all governmental authorities having jurisdiction and the
requirements of all carriers of insurance on the Premises and the Building, the
Board of Underwriters, Fire Rating Bureau, or similar organization. All work
shall be performed in a diligent, first class manner and so as not to
unreasonably interfere with any other tenants or occupants of the Building. All
costs incurred by Landlord relating to the Alterations shall be payable to
Landlord by Tenant as additional rent upon demand. No asbestos-containing
materials shall be used or incorporated in the Alterations. No lead-containing
surfacing material, solder, or other construction materials or fixtures where
the presence of lead might create a condition of exposure not in compliance with
Environmental Laws shall be incorporated in the Alterations.
9.03 Liens. Tenant shall pay when due all costs for work performed and
------
materials supplied to the Premises. Tenant shall keep Landlord, the Premises
and the Building free from all liens, stop notices and violation notices
relating to the Alterations or any other work performed for, materials furnished
to or obligations incurred by or for Tenant and Tenant shall protect, indemnify,
hold harmless and defend Landlord, the Premises and the Building of and from any
and all loss, cost, damage, liability and expense, including attorneys' fees,
arising out of or related to any such liens or notices. Further, Tenant shall
give Landlord not less then seven (7) business days prior written notice before
commencing any Alterations in or about the Premises to permit Landlord to post
appropriate notices of non-responsibility. Tenant shall also secure, prior to
commencing any Alterations, at Tenant's sole expense, a completion and lien
indemnity bond satisfactory to Landlord for such work. During the progress of
such work, Tenant shall, upon Landlord's request, furnish Landlord with sworn
contractor's statements and lien waivers covering all work theretofore
performed. Tenant shall satisfy or otherwise discharge all liens, stop notices
or other claims or encumbrances within ten (10) days after Landlord notifies
Tenant in writing that any such lien, stop notice, claim or encumbrance has been
filed. If Tenant fails to pay and remove such lien, claim or encumbrance within
such ten (10) days, Landlord, at its election, may pay and satisfy the same and
in such event the sums so paid by Landlord, with interest from the date of
payment at the rate set forth in Section 4.06 hereof for amounts owed Landlord
by Tenant shall be deemed to be additional rent due and payable by Tenant at
once without notice or demand.
9.04 Lease Termination. Except as provided in this Section 9.04, upon
------------------
expiration or earlier termination of this Lease Tenant shall surrender the
Premises to Landlord in the same condition as existed on the date Tenant first
occupied the Premises, (whether pursuant to this Lease or an earlier lease),
subject to reasonable wear and tear. All Alterations shall become a part of the
Premises and shall become the property of Landlord upon
8
the expiration or earlier termination of this Lease, unless Landlord shall, by
written notice given to Tenant, require Tenant to remove some or all of Tenant's
Alterations, in which event Tenant shall promptly remove the designated
Alterations and shall promptly repair any resulting damage, all at Tenant's sole
expense. All business and trade fixtures, machinery and equipment, furniture,
movable partitions and items of personal property owned by Tenant or installed
by Tenant at its expense in the Premises shall be and remain the property of
Tenant; upon the expiration or earlier termination of this Lease, Tenant shall,
at its sole expense, remove all such items and repair any damage to the Premises
or the Building caused by such removal. If Tenant fails to remove any such items
or repair such damage promptly after the expiration or earlier termination of
the Lease, Landlord may, but need not, do so with no liability to Tenant, and
Tenant shall pay Landlord the cost thereof upon demand. Additionally,
immediately prior to the expiration of the Term, Tenant shall have the right, at
its sole cost and expense, to remove other nonstructural Alterations, installed
by Tenant at its expense in the Premises. In such event, Tenant shall repair any
damage to the Premises or the Building caused by such removal. Notwithstanding
the foregoing to the contrary, in the event that Landlord gives its consent,
pursuant to the provisions of Section 9.01 of this Lease, to allow Tenant to
make an Alteration in the Premises, Landlord agrees, upon Tenant's written
request, to notify Tenant in writing at the time of the giving of such consent
whether Landlord will require Tenant, at Tenant's cost, to remove such
Alteration at the end of the Lease Term.
ARTICLE X - INDEMNIFICATION AND INSURANCE
-----------------------------------------
10.01 Indemnification.
----------------
(A) Tenant agrees to protect, indemnify, hold harmless and defend
Landlord and any Mortgagee, as defined herein, and each of their respective
partners, directors, officers, agents and employees, successors and assigns,
(except to the extent of the losses described below are caused by the gross
negligence or willful misconduct of Landlord, its agents and employees), from
and against:
(i) any and all loss, cost, damage, liability or expense as incurred
(including but not limited to reasonable attorneys' fees and legal
costs) arising out of or related to any claim, suit or judgment
brought by or in favor of any person or persons for damage, loss or
expense due to, but not limited to, bodily injury, including death, or
property damage sustained by such person or persons which arises out
of, is occasioned by or is in any way attributable to the use or
occupancy of the Premises or any portion of the Building by Tenant or
the acts or omission of Tenant or its agents, employees, contractors,
clients, invitees or subtenants except to the extent caused by the
gross negligence or willful misconduct of Landlord or its agents or
employees. Such loss or damage shall include, but not be limited to,
any injury or damage to, or death of, Landlord's employees or agents
or damage to the Premises or any portion of the Building.
(ii) any and all environmental damages which arise from: (i) the
Handling of any Tenant's Hazardous Materials, as defined in Section
6.03 or (ii) the breach of any of the provisions of this Lease. For
the purpose of this Lease, "environmental damages" shall mean (a) all
claims, judgments, damages, penalties, fines, costs, liabilities, and
losses (including without limitation, diminution in the value of the
Premises or any portion of the Building, damages for the loss of or
restriction on use of rentable or usable space or of any amenity of
the Premises or any portion of the Building, and from any adverse
impact on Landlord's marketing of space); (b) all reasonable sums paid
for settlement of claims, attorneys' fees, consultants' fees and
experts' fees; and (c) all costs incurred by Landlord in connection
with investigation or remediation relating to the Handling of Tenant's
Hazardous Materials, whether or not required by Environmental Laws,
necessary for Landlord to make full economic use of the Premises or
any portion of the Building, or otherwise required under this Lease.
To the extent that Landlord is held strictly liable by a court or
other governmental agency of competent jurisdiction under any
Environmental Laws, Tenant's obligation to Landlord and the other
indemnities under the foregoing indemnification shall likewise be
without regard to fault on Tenant's part with respect to the violation
of any Environmental Law which results in liability to the indemnitee.
Tenant's obligations and liabilities pursuant to this Section 10.01
shall survive the expiration or earlier termination of this Lease.
(B) Landlord agrees to protect, indemnify, hold harmless and defend
Tenant from and against any and all loss, cost, damage, liability or expense,
including reasonable attorneys' fees, with respect to any claim of damage or
injury to persons or property at the Premises, caused by the gross negligence or
willful misconduct of Landlord or its authorized agents or employees.
(C) Notwithstanding anything to the contrary contained herein, nothing
shall be interpreted or used to in any way affect, limit, reduce or abrogate any
insurance coverage provided by any insurers to either Tenant or Landlord.
(D) Notwithstanding anything to the contrary contained in this Lease,
nothing herein shall be construed to infer or imply that Tenant is a partner,
joint venturer, agent, employee, or otherwise acting by or at the direction of
Landlord.
10.02 Property Insurance.
-------------------
9
(A) At all times during the Lease Term, Tenant shall procure and
maintain, at its sole expense, "all-risk" property insurance, for damage or
other loss caused by fire or other casualty or cause including, but not limited
to, vandalism and malicious mischief, theft, water damage of any type, including
sprinkler leakage, bursting of pipes, explosion, in an amount not less than one
hundred percent (100%) of the replacement cost covering (a) all Alterations made
by or for Tenant in the Premises; and (b) Tenant's trade fixtures, equipment and
other personal property from time to time situated in the Premises. The
proceeds of such insurance shall be used for the repair or replacement of the
property so insured, except that if not so applied or if this Lease is
terminated following a casualty, the proceeds applicable to the leasehold
improvements shall be paid to Landlord and the proceeds applicable to Tenant's
personal property shall be paid to Tenant.
(B) At all times during the Lease Term, Tenant shall procure and
maintain business interruption insurance in such amount as will reimburse Tenant
for direct or indirect loss of earnings attributable to all perils insured
against in Section 10.02(A).
(C) Landlord shall, at all times during the Lease Term, procure and
maintain "all-risk" property insurance in the amount not less than ninety
percent (90%) of the insurable replacement cost covering the Building in which
the Premises are located and such other insurance as may be required by a
Mortgagee or otherwise desired by Landlord.
10.03 Liability Insurance.
--------------------
(A) At all times during the Lease Term, Tenant shall procure and
maintain, at its sole expense, commercial general liability insurance applying
to the use and occupancy of the Premises and the business operated by Tenant.
Such insurance shall have a minimum combined single limit of liability of at
least Two Million Dollars ($2,000,000) per occurrence and a general aggregate
limit of at least Two Million Dollars ($2,000,000). This limit of insurance may
be obtained by using a combination of primary and umbrella policies. All such
policies shall be written to apply to all bodily injury, property damage,
personal injury losses and shall be endorsed to include Landlord and its agents,
beneficiaries, partners, employees, and any deed of trust holder or mortgagee of
Landlord or any ground lessor as additional insureds. Such liability insurance
shall be written as primary policies, not excess or contributing with or
secondary to any other insurance as may be available to the additional insureds.
(B) Prior to the sale, storage, use or giving away of alcoholic
beverages on or from the Premises by Tenant or another person, Tenant, at its
own expense, shall obtain a policy or policies of insurance issued by a
responsible insurance company and in a form acceptable to Landlord saving
harmless and protecting Landlord and the Premises against any and all damages,
claims, liens, judgments, expenses and costs, including actual attorneys' fees,
arising under any present or future law, statute, or ordinance of the
Commonwealth of Pennsylvania or other governmental authority having jurisdiction
of the Premises, by reason of any storage, sale, use or giving away of alcoholic
beverages on or from the Premises. Such policy or policies of insurance shall
have a minimum combined single limit of One Million ($1,000,000) per occurrence
and shall apply to bodily injury, fatal or nonfatal; injury to means of support;
and injury to property of any person. Such policy or policies of insurance
shall name Landlord and its agents, beneficiaries, partners, employees and any
mortgagee of Landlord or any ground lessor of Landlord as additional insureds.
(C) Landlord shall, at all times during the Lease Term, procure and
maintain commercial general liability insurance for the Building in which the
Premises are located. Such insurance shall have minimum combined single limit
of liability of at least Two Million Dollars ($2,000,000) per occurrence, and a
general aggregate limit of at least Two Million Dollars ($2,000,000).
10.04 Workers' Compensation Insurance. At all times during the Lease
--------------------------------
Term, Tenant shall procure and maintain Workers' Compensation Insurance in
accordance with the laws of the Commonwealth of Pennsylvania, and Employer's
Liability insurance with a limit not less than Five Hundred Thousand Dollars
($500,000) Bodily Injury Each Accident; Five Hundred Thousand Dollars ($500,000)
Bodily Injury By Disease - Each Person; and Five Hundred Thousand Dollars
($500,000) Bodily Injury to Disease - Policy Limit.
10.05 Policy Requirements. All insurance required to be maintained by
--------------------
Tenant shall be issued by insurance companies authorized to do insurance
business in the Commonwealth of Pennsylvania and rated not less than A-VIII in
Best's Insurance Guide. A certificate of insurance (or, at Landlord's option,
copies of the applicable policies) evidencing the insurance required under this
Article X shall be delivered to Landlord not less than thirty (30) days prior to
the Commencement Date. No such policy shall be subject to cancellation or
modification without thirty (30) days prior written notice to Landlord and to
any deed of trust holder, mortgagee or ground lessor designated by Landlord to
Tenant. Tenant shall furnish Landlord with a replacement certificate with
respect to any insurance not less than thirty (30) days prior to the expiration
of the current policy. Tenant shall have the right to provide the insurance
required by this Article X pursuant to blanket policies, but only if such
blanket policies expressly provide coverage to the Premises and Landlord as
required by this Lease.
10.06 Waiver of Subrogation. Each party hereby waives any right of
----------------------
recovery against the other for injury or loss due to hazards covered by
insurance or required to be covered, to the extent of the injury or loss covered
thereby. Any policy of insurance to be provided by Tenant or Landlord pursuant
to this Article X shall contain a clause denying the applicable insurer any
right of subrogation against the other party.
10.07 Failure to Insure. If Tenant fails to maintain any insurance which
------------------
Tenant is required to maintain pursuant to this Article X, Tenant shall be
liable to Landlord for any loss or cost resulting from such failure to
10
maintain. Tenant may not self-insure against any risks required to be covered by
insurance without Landlord's prior written consent.
ARTICLE XI - DAMAGE OR DESTRUCTION
----------------------------------
11.01 Total Destruction. Except as provided in Section 11.03 below, this
------------------
Lease shall automatically terminate if the Building is totally destroyed.
11.02 Partial Destruction of Premises. If the Premises are damaged by any
--------------------------------
casualty and, in Landlord's opinion, the Premises (exclusive of any Alterations
made to the Premises by Tenant) can be restored to its pre-existing condition
within one hundred eighty (180) days after the date of the damage or
destruction, Landlord shall, upon written notice from Tenant to Landlord of such
damage, except as provided in Section 11.03, promptly and with due diligence
repair any damage to the Premises (exclusive of any Alterations to the Premises
made by Tenant, which shall be promptly repaired by Tenant at its sole expense)
and, until such repairs are completed, the Rent shall be abated from the date of
damage or destruction in the same proportion that the rentable area of the
portion of the Premises which is unusable by Tenant in the conduct of its
business bears to the total rentable area of the Premises. If such repairs
cannot, in Landlord's opinion, be made within said one hundred eighty (180) day
period, then Landlord may, at its option, exercisable by written notice given to
Tenant within thirty (30) days after the date of the damage or destruction,
elect to make the repairs within a reasonable time after the damage or
destruction, in which event this Lease shall remain in full force and effect but
the Rent shall be abated as provided in the preceding sentence; if Landlord does
not so elect to make the repairs, then either Landlord or Tenant shall have the
right, by written notice given to the other within thirty (30) days after the
date of the damage or destruction, to terminate this Lease as of the date of the
damage or destruction.
11.03 Exceptions to Landlord's Obligations. Notwithstanding anything to
-------------------------------------
the contrary contained in this Article XI, Landlord shall have no obligation to
repair the Premises if either: (a) the Building in which the Premises are
located is so damaged as to require repairs to the Building exceeding twenty
percent (20%) of the full insurable value of the Building; or (b) Landlord
elects to demolish the Building in which the Premises are located; or (c) the
damage or destruction occurs less than two (2) years prior to the Termination
Date, exclusive of option periods. Further, Tenant's Rent shall not be abated
if either (i) the damage or destruction is repaired within five (5) business
days after Landlord receives written notice from Tenant of the casualty, or (ii)
Tenant, or any officers, partners, employees, agents or invitees of Tenant, or
any assignee or subtenant of Tenant, is, in whole or in material part,
responsible for the damage or destruction.
11.04 Waiver. The provisions contained in this Lease shall supersede any
-------
contrary laws (whether statutory, common law or otherwise) now or hereafter in
effect relating to damage, destruction, self-help or termination.
ARTICLE XII - CONDEMNATION
--------------------------
12.01 Taking. If the entire Premises or so much of the Premises as to
-------
render the balance unusable by Tenant shall be taken by condemnation, sale in
lieu of condemnation or in any other manner for any public or quasi-public
purpose (collectively "Condemnation"), and if Landlord, at its option, is unable
or unwilling to provide substitute premises containing at least as much rentable
area as described in Section 1.02 above, then this Lease shall terminate on the
date that title or possession to the Premises is taken by the condemning
authority, whichever is earlier.
12.02 Award. In the event of any Condemnation, the entire award for such
------
taking shall belong to Landlord. Tenant shall have no claim against Landlord or
the award for the value of any unexpired term of this Lease or otherwise.
Tenant shall be entitled to independently pursue a separate award in a separate
proceeding for Tenant's relocation costs directly associated with the taking,
provided such separate award does not diminish Landlord's award.
12.03 Temporary Taking. No temporary taking of the Premises shall
-----------------
terminate this Lease or entitle Tenant to any abatement of the Rent payable to
Landlord under this Lease; provided, further, that any award for such temporary
taking shall belong to Tenant to the extent that the award applies to any time
period during the Lease Term and to Landlord to the extent that the award
applies to any time period outside the Lease Term.
ARTICLE XIII - RELOCATION
-------------------------
13.01 Relocation. Landlord shall have the right, at its option, upon
-----------
not less than one hundred twenty (120) days prior written notice to Tenant
(the "Relocation Notice"), to relocate Tenant and to substitute for the
Premises described above within any building located in the Foster Plaza
Complex so long as (i) such building was constructed after Foster Plaza V, (ii)
the substitute Premises contains at least as much rentable area as the original
Premises, (iii) the substitute Premises is improved with a quality of finish
similar to that found in the original Premises, and (iv) the substitute Premises
is located on the third floor or higher. In connection with any such
relocation, Landlord shall reimburse Tenant for Tenant's reasonable expenses of
moving Tenant's furniture, equipment and installations, cabling for personal
computer and telephone equipment, and for reasonable quantities of new
stationary, upon submission to Landlord of receipts for such expenditures
incurred by Tenant; provided,
11
however, if Tenant is already in occupancy of the Premises, prior to incurring
such expenses, Tenant shall obtain Landlord's written consent to such expenses.
If Tenant does not desire to relocate to the substitute Premises provided
under this Section 13.01, Tenant may elect to cancel this Lease by giving notice
of such cancellation (the "Cancellation Notice") within forty five (45) days
after the date of the Relocation Notice. Notwithstanding the foregoing, in the
event Tenant delivers a Cancellation Notice as provided in the previous
sentence, Landlord may elect to revoke the Relocation Notice within fifteen (15)
days after receipt of the Cancellation Notice, whereupon the Lease shall remain
unmodified and in full force and effect.
ARTICLE XIV - ASSIGNMENT AND SUBLETTING
---------------------------------------
14.01 Restriction. Without the prior written consent of Landlord, Tenant
------------
shall not, either voluntarily or by operation of law, assign, encumber, or
otherwise transfer this Lease or any interest herein, or sublet the Premises or
any part thereof, or permit the Premises to be occupied by anyone other than
Tenant or Tenant's employees (any such assignment, encumbrance, subletting,
occupation or transfer is hereinafter referred to as a "Transfer"). For
purposes of this Lease, the term "Transfer" shall also include (a) if Tenant is
a partnership, the withdrawal or change, voluntary, involuntary or by operation
of law, of a majority of the partners, or a transfer of a majority of
partnership interests, within a twelve month period, or the dissolution of the
partnership, (b) if Tenant is a closely held corporation (i.e. whose stock is
not publicly held and not traded through an exchange or over the counter) or a
limited liability company, the dissolution, merger, consolidation, division,
liquidation or other reorganization of Tenant, or within a twelve month period:
(i) the sale or other transfer of more than an aggregate of 50% of the voting
securities of Tenant (other than to immediate family members by reason of gift
or death) or (ii) the sale, mortgage, hypothecation or pledge of more than an
aggregate of 50% of Tenant's net assets, and (c) any change by Tenant in the
form of its legal organization under applicable state law (such as, for example,
a change from a general partnership to a limited partnership or from a
corporation to a limited liability company). An assignment, subletting or other
action in violation of the foregoing shall be void and, at Landlord's option,
shall constitute a material breach of this Lease. Notwithstanding anything
contained in this Article XIV to the contrary, Tenant shall have the right to
assign the Lease or sublease the Premises, or any part thereof, to an
"Affiliate" without the prior written consent of Landlord, but upon at least
twenty (20) days' prior written notice to Landlord, provided that said Affiliate
is not in default under any other lease for space in a property that is managed
by Kennedy-Wilson Properties Ltd. or any of its affiliates. For purposes of
this provision, the term "Affiliate" shall mean any corporation or other entity
controlling, controlled by, or under common control with (directly or
indirectly) Tenant, including, without limitation, any parent corporation
controlling Tenant or any subsidiary that Tenant controls. The term "control,"
as used herein, shall mean the power to direct or cause the direction of the
management and policies of the controlled entity through the ownership of more
than fifty percent (50%) of the voting securities in such controlled entity.
Notwithstanding anything contained in this Article XIV to the contrary, Tenant
expressly covenants and agrees not to enter into any lease, sublease, license,
concession or other agreement for use, occupancy or utilization of the Premises
which provides for rental or other payment for such use, occupancy or
utilization based in whole or in part on the net income or profits derived by
any person from the property leased, used, occupied or utilized (other than an
amount based on a fixed percentage or percentages of receipts or sales), and
that any such purported lease, sublease, license, concession or other agreement
shall be absolutely void and ineffective as a conveyance of any right or
interest in the possession, use, occupancy or utilization of any part of the
Premises.
14.02 Notice to Landlord. If Tenant desires to assign this Lease or any
-------------------
interest herein, or to sublet all or any part of the Premises, then at least
thirty (30) days but not more than one hundred eighty (180) days prior to the
effective date of the proposed assignment or subletting, Tenant shall submit to
Landlord in connection with Tenant's request for Landlord's consent:
(A) A statement containing (i) the name and address of the proposed
assignee or subtenant; (ii) such financial information with respect to the
proposed assignee or subtenant as Landlord shall reasonably require; (iii) the
type of use proposed for the Premises; and (iv) all of the principal terms of
the proposed assignment or subletting; and
(B) Four (4) originals of the assignment or sublease on a form
approved by Landlord and four (4) originals of the Landlord's Consent to
Sublease or Assignment and Assumption of Lease and Consent.
14.03 Landlord's Recapture Rights. At any time within twenty (20)
----------------------------
business days after Landlord's receipt of all (but not less than all) of the
information and documents described in Section 14.02 above, Landlord may, at its
option by written notice to Tenant, elect to: (a) sublease the Premises or the
portion thereof proposed to be sublet by Tenant upon the same terms as those
offered to the proposed subtenant; (b) take an assignment of the Lease upon the
same terms as those offered to the proposed assignee; or (c) terminate the Lease
in its entirety or as to the portion of the Premises proposed to be assigned or
sublet, with a proportionate adjustment in the Rent payable hereunder if the
Lease is terminated as to less than all of the Premises. If Landlord does not
exercise any of the options described in the preceding sentence, then, during
the above-described twenty (20) business day period, Landlord shall either
consent or deny its consent to the proposed assignment or subletting; provided,
in the event the Landlord does not respond within such twenty (20) day period,
Landlord will be deemed to have denied its consent.
14.04 Landlord's Consent; Standards. Landlord's consent to a proposed
------------------------------
assignment or subletting shall not be unreasonably withheld or delayed; but, in
addition to any other grounds for denial, Landlord's consent
12
shall be deemed reasonably withheld if, in Landlord's good faith judgment: (i)
the proposed assignee or subtenant does not have the financial strength to
perform its obligations under this Lease or any proposed sublease; (ii) the
business and operations of the proposed assignee or subtenant are not of
comparable quality to the business and operations being conducted by other
tenants in the Building; (iii) the proposed assignee or subtenant intends to use
any part of the Premises for a purpose not permitted under this Lease; (iv)
either the proposed assignee or subtenant, or any person which directly or
indirectly controls, is controlled by, or is under common control with the
proposed assignee or subtenant occupies space in the Building, or is negotiating
with Landlord to lease space in the Building; (v) the proposed assignee or
subtenant is disreputable; or (vi) the use of the Premises or the Building by
the proposed assignee or subtenant would, in Landlord's reasonable judgment,
impact the Building in a negative manner including but not limited to
significantly increasing the pedestrian traffic in and out of the Building or
requiring any alterations to the Building to comply with applicable laws; (vii)
the subject space is not regular in shape with appropriate means of ingress and
egress suitable for normal renting purposes; (viii) the transferee is a
government (or agency or instrumentality thereof) or (ix) Tenant has failed to
cure a default at the time Tenant requests consent tot the proposed Transfer.
14.05 Additional Rent. If Landlord consents to any such assignment or
----------------
subletting, one half (1/2) of the amount by which all sums or other economic
consideration received by Tenant in connection with such assignment or
subletting, whether denominated as rental or otherwise, exceeds, in the
aggregate, the total sum which Tenant is obligated to pay Landlord under this
Lease (prorated to reflect obligations allocable to less than all of the
Premises under a sublease) shall be paid to Landlord promptly after receipt as
additional Rent under the Lease without affecting or reducing any other
obligation of Tenant hereunder.
14.06 Landlord's Costs. If Tenant shall Transfer this Lease or all or any
-----------------
part of the Premises or shall request the consent of Landlord to any Transfer,
Tenant shall pay to Landlord as additional rent Landlord's costs related
thereto, including Landlord's reasonable attorneys' fees and a minimum fee to
Landlord of Five Hundred Dollars ($500.00) and a maximum of Five Thousand
Dollars ($5,000.00).
14.07 Continuing Liability of Tenant. Notwithstanding any Transfer,
-------------------------------
including an assignment or sublease to an Affiliate, Tenant shall remain as
fully and primarily liable for the payment of Rent and for the performance of
all other obligations of Tenant contained in this Lease to the same extent as if
the Transfer had not occurred; provided, however, that any act or omission of
any transferee, other than Landlord, that violates the terms of this Lease shall
be deemed a violation of this Lease by Tenant.
14.08 Non-Waiver. The consent by Landlord to any Transfer shall not
-----------
relieve Tenant, or any person claiming through or by Tenant, of the obligation
to obtain the consent of Landlord, pursuant to this Article XIV, to any further
Transfer. In the event of an assignment or subletting, Landlord may collect
rent from the assignee or the subtenant without waiving any rights hereunder and
collection of the rent from a person other than Tenant shall not be deemed a
waiver of any of Landlord's rights under this Article XIV, an acceptance of
assignee or subtenant as Tenant, or a release of Tenant from the performance of
Tenant's obligations under this Lease. If Tenant shall default under this Lease
and fail to cure within the time permitted, Landlord is irrevocably authorized,
as Tenant's agent and attorney-in-fact, to direct any transferee to make all
payments under or in connection with the Transfer directly to Landlord (which
Landlord shall apply towards Tenant's obligations under this Lease) until such
default is cured.
ARTICLE XV - DEFAULT AND REMEDIES
---------------------------------
15.01 Events of Default By Tenant. The occurrence of any of the following
----------------------------
shall constitute a material default and breach of this Lease by Tenant:
(A) The failure by Tenant to pay Base Rent or make any other payment
required to be made by Tenant hereunder as and when due (it being agreed that
Landlord shall give written notice and five (5) business days to cure the first
two (2) times such failure occurs in any twelve (12) month period before such
failure shall constitute a material default or breach of this Lease)..
(B) The abandonment of the Premises by Tenant or the vacation of the
Premises by Tenant for fourteen (14) consecutive days (with or without the
payment of Rent).
(C) The making by Tenant of any assignment of this Lease or any
sublease of all or part of the Premises, except as expressly permitted under
Article XIV of this Lease.
(D) The failure by Tenant to observe or perform any other provision of
this Lease to be observed or performed by Tenant, other than those described in
Sections 15.01(A), 15.01(B) or 15.01 (C) above, if such failure continues for
thirty (30) days after written notice thereof by Landlord to Tenant; provided,
however, that if the nature of the default is such that it cannot be cured
within the thirty (30) day period, no default shall exist if Tenant commences
the curing of the default within the thirty (30) day period and thereafter
diligently prosecutes the same to completion. The thirty (30) day notice
described herein shall be in lieu of, and not in addition to, any notice
required under law now or hereafter in effect requiring that notice of default
be given prior to the commencement of an unlawful detainer or other legal
proceeding.
(E) The making by Tenant or its Guarantor of any general assignment
for the benefit of creditors, the filing by or against Tenant or its Guarantor
of a petition under any federal or state bankruptcy or insolvency
13
laws (unless, in the case of a petition filed against Tenant or its Guarantor
the same is dismissed within thirty (30) days after filing); the appointment of
a trustee or receiver to take possession of substantially all of Tenant's assets
at the Premises or Tenant's interest in this Lease or the Premises, when
possession is not restored to Tenant within thirty (30) days; or the attachment,
execution or other seizure of substantially all of Tenant's assets located at
the Premises or Tenant's interest in this Lease or the Premises, if such seizure
is not discharged within thirty (30) days.
(F) Any material misrepresentation herein, or material
misrepresentation or omission in any financial statements or other materials
provided by Tenant or any Guarantor in connection with negotiating or entering
into this Lease or in connection with any Transfer under Section 14.01.
15.02 Payment of Balance Due. If there shall occur an Event of Default in
-----------------------
Section 15.01 above, then and in that event:
(A) The whole Rent for the following twelve (12) months of the Lease
Term, as hereinafter computed, or any part thereof at the option of the
Landlord, shall immediately without notice, become due and payable as if by the
terms of this Lease the same were payable in advance provided, that if this
Lease is not terminated at the end of such twelve (12) month period (or any
successive twelve (12) month period thereafter) and an Event of Default shall
continue to exist at such time, the whole Rent for the following twelve (12)
months of the Lease Term, as hereinafter computed, or any part thereof at the
option of the Landlord, shall immediately without notice, become due and payable
as if by the terms of this Lease the same were payable in advance; and
(B) Landlord may immediately proceed to collect or bring action for
the whole Rent or such part thereof as aforesaid, as being Rent in arrears; or
may enter judgment thereof in an amicable action as herein elsewhere provided
for in case of Rent in arrears; or may file a Proof of Claim in any bankruptcy
or insolvency proceeding for such Rent; or Landlord may institute any other
proceedings, whether similar to the foregoing or not, to enforce payment
thereof.
(C) The Landlord agrees to mitigate damages as set forth by
Pennsylvania law.
15.03 Computation of Accelerated Rent. Rent for each year for the
-------------------------------
balance of the Lease Term after the occurrence of any Event of Default for the
purpose of computing the Rent reserved hereunder for the unexpired portion of
the Lease Term under Section 15.02 hereof shall be computed as equal to the
yearly average of the Base Rent and additional rent payable by Tenant for the
last three (3) full calendar years immediately preceding said Event of Default.
If three (3) full calendar years have not preceded the occurrence of said Event
of Default, then the annual average of Base Rent and additional rent payable by
Tenant theretofore required to be paid by Tenant shall be used in the
computation of the annual Rent.
15.04 Repossession of Premises. As long as the whole Rent or any part
--------------------------
thereof as aforesaid remains unpaid, then Landlord may at any time thereafter
re-enter and repossess the Premises and any part thereof and attempt to relet
all or any parts of the Premises for the account of Tenant for and upon such
terms and to such persons, firms or corporations and for such period or periods
as Landlord, in its sole discretion, shall determine, including a term beyond
the termination of this Lease. Landlord shall not be required to accept any
tenant offered by Tenant; or observe any instruction given by Tenant about such
reletting; or do any act or exercise any care of diligence with respect to such
reletting or the mitigation of damages except as set forth in section 15.02(C).
For the purpose of such reletting, Landlord may decorate or make repairs,
changes, alterations, or additions in or to the Premises to the extent
reasonably deemed by Landlord to be appropriate; and the costs of such
decoration, repairs, changes, alterations or additions shall be charged to and
be payable by Tenant as additional rent hereunder, as well as any reasonable
brokerage and legal fees expended by Landlord. Any sums collected by Landlord
from any new tenant obtained on account of the Tenant shall be credited against
the balance of the Rent due hereunder as aforesaid.
15.05 Termination of Lease. At any time after any Event of Default
---------------------
shall occur, Landlord, at its option, may serve notice upon Tenant that this
Lease and the Lease Term hereof shall cease and expire and become absolutely
void on the date specified in such notice, to be not less than five (5) days
after the date of such notice; and thereupon, and at the expiration of the time
limited in such notice, this Lease and the Lease Term, as well as all of the
right, title and interest of the Tenant hereunder, shall wholly cease and expire
and become void in the same manner and with the same force and effect (except as
to Tenant's liability) as if the date fixed in such notice were the date herein
specified for expiration of the Lease Term. Thereupon, Tenant shall immediately
quit and surrender to Landlord the Premises, and Landlord may enter into and
repossess the Premises by summary proceedings, detainer, ejectment or otherwise,
and remove all occupants thereof and, at Landlord's option, any property thereon
without being liable to indictment, prosecution or damage therefor.
15.06 Liquidated Damages. Omitted.
-------------------
15.07 Re-entry by Landlord. Upon the occurrence of any Event of Default
---------------------
beyond any applicable cure period set forth in Section 15.01, then Landlord or
any person acting under Landlord:
(A) May enter the Premises and without further demand, proceed by
distress and sale of the goods there found to be credited against the Rent and
all other charges herein payable as Rent, and all costs and officers'
commissions, including storage costs and watchmen's wages. In such case, all
costs, officers' commissions and other charges shall immediately attach and
become part of the claim of Landlord for Rent and any
14
tender of Rent without said costs made after the issue of warrant of distress
shall not be sufficient to satisfy the claim of Landlord; and/or
(B) May re-enter and repossess the Premises, breaking open locked
doors, if necessary, and may use as much force as necessary to effect the manner
thereof, and Landlord shall not be liable for any injury to the Premises caused
thereby, nor shall Landlord be liable for the loss of any property upon the
Premises.
15.08 Waivers of Notice. If proceedings shall be commenced by Landlord
------------------
to recover possession under the Acts of Assembly, either at the end of the Lease
Term or upon occurrence of any Event of Default, Tenant expressly waives all
right to notice in excess of five (5) days required by the Act, and agrees that
in either or any such case, five (5) days notice shall be sufficient. Without
limitation of or by the foregoing, the Tenant hereby waives any and all demand,
notices of intention and notices of action or proceedings which may be required
by law to be given or taken prior to any entry or re-entry by summary
proceedings, ejectment or otherwise, by Landlord, except as hereinbefore
expressly provided with respect to the five (5) days notice; and provided
further that this shall not be construed as a waiver by Tenant of any notices to
which this Lease expressly provides that Tenant is entitled._____
15.09 Waiver of Recovery by Tenant. In the event of a termination of
-----------------------------
this Lease, prior to the date of expiration herein originally fixed, whether by
reason of service of a notice as provided herein terminating this Lease, or by
reason of entry or re-entry, summary proceedings, ejectment or other operation
of law, Tenant hereby waives all right to recover or regain possession of the
Premises, to save forfeiture by payment of Rent due or by other performance of
the conditions, terms or provisions hereof, if such termination occurred by
reason of any failure in performance hereof. Without limitation of or by the
foregoing, Tenant waives all right to reinstate or redeem this Lease,
notwithstanding any provisions of any statute, law or decision now or hereafter
in force or effect. Tenant further waives all right to any second or further
trial in summary proceedings, ejectment or in any other action provided by any
statue or decision now or hereafter in force of effect.
15.10 Entry and Re-entry Defined. The words "entry" and "re-entry" as
---------------------------
used in this Lease shall not be deemed restricted to their technical legal
meaning.
15.11 Breach by Tenant/Right of Landlord to Injunction. In the event of
-------------------------------------------------
a breach or threatened breach by Tenant of any of the agreements, conditions,
covenants or terms hereof, Landlord shall have the right of injunction to
restrain the same, and the right to invoke any remedy allowed by law or in
equity, whether or not other remedies, indemnity or reimbursements are herein
provided. The rights and remedies given to Landlord in this Lease are distinct,
separate and cumulative remedies, and no one of them, whether or not exercised
by Landlord, shall be deemed to be the exclusion of any of the others.
15.12 Confession of Judgment/Money Damages. Omitted.
-------------------------------------
15.13 Confession of Judgment/Ejectment. In the event that, and when
---------------------------------
this Lease shall be determined by term, covenant, limitation or condition
broken, as aforesaid, during the Lease Term, and also when and as soon as the
Lease Term hereby created shall have expired, it shall be lawful for any
attorney, as attorney for Tenant to sign an agreement for entering in any
competent court an amicable action and judgment in ejectment, without any stay
of execution or appeal, against Tenant and all persons claiming under Tenant for
the recovery by Landlord of possession of the Premises, without any liability on
the part of the said attorney, for which this Lease shall be a sufficient
warrant; whereupon, if Landlord so desires, a writ of possession with clauses
for costs may issue forthwith with or without any prior writ or proceeding
whatsoever. If for any reason after such action has been commenced, the same
shall be determined and the possession of the Premises remains in or is restored
to Tenant, the Landlord shall have the right in the event of any subsequent
default or defaults to bring one or more further amicable actions in the manner
and form hereinbefore set forth, to recover possession of the Premises for such
subsequent default. No such determination of this Lease nor recovering
possession of the Premises shall deprive Landlord of any remedies or action
against Tenant for Rent or for damages due or to become due for the breach of
any condition or covenant; nor the resort to any waiver of the right to insist
upon the forfeiture, and to obtain possession in the manner provided herein.
15.14 Affidavit Required. In any amicable action of ejectment or for
-------------------
Rent in arrears, Landlord shall first cause to be filed in such action an
affidavit made by it or someone acting for it setting forth the facts necessary
to authorize the entry of judgment of which facts such affidavit shall be
conclusive evidence; and if a true copy of this Lease is filed in such action,
it shall not be necessary to file the original as a warrant of attorney, any
rule of court, custom or practice to the contrary notwithstanding.
15.15 Judgment Final. Omitted.
---------------
15.16 Tenant Waiver of Writ of Replevin. Tenant waives the right to
----------------------------------
issue a Writ of Replevin under the Pennsylvania Rules of Civil Procedure, under
the laws of the Commonwealth of Pennsylvania, or under any law previously
enacted and now in force or which hereinafter may be enacted, for the recovery
of any articles of any nature whatsoever seized in connection with a levy upon
an execution for Rent, liquidated damages or otherwise. Tenant waives the right
to delay execution on any real estate levied upon to collect any amount which
may become due under the terms and conditions of this Lease, and authorizes the
prothonotary to enter a Writ of Execution or other process upon Tenant's
voluntary waiver, and further agrees that the said real estate may be sold on a
Writ of Execution or other process.
15
15.17 Landlord's Remedies Cumulative. All Remedies provided to Landlord
-------------------------------
herein shall be cumulative.
15.18 Default by Landlord. Landlord's failure to perform or observe any
--------------------
of its obligations under this Lease shall constitute a default by Landlord under
this Lease only if such failure shall continue for period of thirty (30) days
(or the additional time, if any, that is reasonably necessary to promptly and
diligently cure the failure) after Landlord receives written notice from Tenant
specifying the default. The notice shall give in reasonable detail the nature
and extent of the failure and shall identify the Lease provision(s) containing
the obligation(s). If Landlord shall default in the performance of any of its
obligations under this Lease (after notice and opportunity to cure as provided
herein), Tenant may pursue any remedies available to it under law and this
Lease, provided, in recognition that Landlord must receive timely payments of
Rent and operate the Building, Tenant shall have no right of self-help to
perform repairs or any other obligation of Landlord, and shall have no right to
withhold, set-off or abate Rent except as set forth in Section 7.02 and Section
11.02.
15.19 Default Under Other Leases. If the term of any lease, other than
---------------------------
this Lease, heretofore or hereafter made by Tenant for any office space in the
Building shall be terminated or terminable after the making of this Lease
because of any default by Tenant under such other lease, such fact shall empower
Landlord, at Landlord's sole option, to terminate this Lease by notice to Tenant
or to exercise any of the rights or remedies set forth in this Article XV.
ARTICLE XVI - ATTORNEYS' FEES: COSTS OF SUIT
---------------------------------------------
16.01 Attorneys Fees. If either Landlord or Tenant shall commence any
---------------
action or other proceeding against the other arising out of, or relating to,
this Lease or the Premises, the prevailing party shall be entitled to recover
from the losing party, in addition to any other relief, its actual attorneys'
fees irrespective of whether or not the action or other proceeding is prosecuted
to judgment and irrespective of any court schedule of reasonable attorneys'
fees. In addition, Tenant shall reimburse Landlord, upon demand, for all
reasonable attorneys' fees incurred in collecting Rent, resolving any actual
default by Tenant, securing indemnification as provided in Article X and
paragraphs, 16.02, 23.01 and 25.01 herein or otherwise seeking enforcement
against Tenant, its sublessees and assigns, of Tenant's obligations under this
Lease.
16.02 Indemnification. Should Landlord be made a party to any litigation
----------------
instituted by Tenant against a party other than Landlord, or by a third party
against Tenant, Tenant shall indemnify, hold harmless and defend Landlord from
any and all loss, cost, liability, damage or expense incurred by Landlord,
including attorneys' fees, in connection with the litigation; provided, however,
Tenant shall not be obligated to so indemnify, hold harmless or defend Landlord
to the extent such matters are directly caused by Landlord's breach of this
Lease.
ARTICLE XVII - SUBORDINATION AND ATTORNMENT
-------------------------------------------
17.01 Subordination. This Lease, and the rights of Tenant hereunder, are
--------------
and shall be subject and subordinate to the interest of (i) all present and
future ground leases and master leases of all or any part of the Building; (ii)
present and future mortgages and deeds of trust encumbering all or any part of
the Building; (iii) all past and future advances made under any such mortgages
or deeds of trust; and (iv) all renewals, modifications, replacements and
extensions of any such ground leases, master leases, mortgages and deeds of
trust; provided, however, that any lessor under any such ground lease or master
lease or any mortgagee or beneficiary under any such mortgage or deed of trust (
any such lessor, mortgagee or beneficiary is hereinafter referred to as a
"Mortgagee") shall have the right to elect, by written notice given to Tenant,
to have this Lease made superior in whole or in part to any such ground lease,
master lease, mortgage or deed of trust (or subject and subordinate to such
ground lease, master lease, mortgage or deed of trust but superior to any junior
mortgage or junior deed of trust). Upon demand, Tenant shall execute,
acknowledge and deliver any instruments reasonably requested by Landlord or any
such Mortgagee to effect the purposes of this Section 17.01. Such instruments
may contain, among other things, provisions to the effect that such Mortgagee
(hereafter, for the purposes of this Section 17.01, a "Successor Landlord")
shall (i) not be liable for any act or omission of Landlord or its predecessors,
if any, prior to the date of such Successor Landlord's succession to Landlord's
interest under this Lease; (ii) not be subject to any offsets or defenses which
Tenant might have been able to assert against Landlord or its predecessors, if
any, prior to the date of such Successor Landlord's succession to Landlord's
interest under this Lease; (iii) not be liable for the return of any security
deposit under the Lease unless the same shall have actually been deposited with
such Successor Landlord; (iv) be entitled to receive notice of any Landlord
default under this Lease plus a reasonable opportunity to cure such default
prior to Tenant having any right or ability to terminate this Lease as a result
of such Landlord default; (v) not be bound by any rent or additional rent which
Tenant might have paid for more than the current month to Landlord; (vi) not be
bound by any amendment or modification of the Lease or any cancellation or
surrender of the same made without Successor Landlord's prior written consent;
(vii) not be bound by any obligation to make any payment to Tenant which was
required to be made prior to the time such Successor Landlord succeeded to
Landlord's interest and (viii) not be bound by any obligation under the Lease to
perform any work or to make any improvements to the demised Premises. Any
obligations of any Successor Landlord under its respective lease shall be non-
recourse as to any assets of such Successor Landlord other than its interest in
the Premises and improvements.
17.02 Attornment. If the interests of Landlord under the Lease shall be
-----------
transferred to any superior Mortgagee or other purchaser or person taking title
to the Building by reason of the termination of any superior
16
lease or the foreclosure of any superior mortgage or deed of trust, Tenant shall
be bound to such Successor Landlord under all of the terms, covenants and
conditions of the Lease for the balance of the term thereof remaining and any
extensions or renewals thereof which may be effected in accordance with any
option therefor in the Lease, with the same force and effect as if Successor
Landlord were the landlord under the Lease, and Tenant shall attorn to and
recognize as Tenant's landlord under this Lease such Successor Landlord, as its
landlord, said attornment to be effective and self-operative without the
execution of any further instruments upon Successor Landlord's succeeding to the
interest of Landlord under the Lease. Tenant shall, upon demand, execute any
documents reasonably requested by any such person to evidence the attornment
described in this Section 17.02. Concurrently, upon written request from Tenant,
and provided Tenant is not in default under this Lease, Landlord agrees to use
diligent, commercially reasonable efforts to obtain a Non-Disturbance Agreement
from the Successor Landlord. Such Non-Disturbance Agreement may be embodied in
the Mortgagee's customary form of Subordination and Non-Disturbance Agreement.
If, after exerting diligent, commercially reasonable efforts, Landlord is unable
to obtain a Non-Disturbance Agreement from any such Mortgagee, Landlord shall
have no further obligation to Tenant with respect thereto.
17.03 Mortgagee Protection. Tenant agrees to give any Mortgagee, by
---------------------
registered or certified mail, a copy of any notice of default served upon
Landlord by Tenant, provided that prior to such notice Tenant has been notified
in writing (by way of service on Tenant of a copy of Assignment of Rents and
Leases, or otherwise) of the address of such Mortgagee (hereafter the "Notified
Party"). Tenant further agrees that if Landlord shall have failed to cure such
default within twenty (20) days after such notice to Landlord (or if such
default cannot be cured or corrected within that time, then such additional time
as may be necessary if Landlord has commenced within such twenty (20) days and
is diligently pursuing the remedies or steps necessary to cure or correct such
default), then the Notified Party shall have an additional thirty (30) days
within which to cure or correct such default (or if such default cannot be cured
or corrected within that time, then such additional time as may be necessary if
the Notified Party has commenced within such thirty (30) days and is diligently
pursuing the remedies or steps necessary to cure or correct such default).
Until the time allowed, as aforesaid, for the Notified Party to cure such
default has expired without cure, Tenant shall have no right to, and shall not,
terminate this Lease on account of Landlord's default.
ARTICLE XVIII - QUIET ENJOYMENT
-------------------------------
18.01 Provided that Tenant performs all of its obligations hereunder,
Tenant shall have and peaceably enjoy the Premises during the Lease Term free of
claims by or through Landlord, subject to all of the terms and conditions
contained in this Lease.
ARTICLE XIX - RULES AND REGULATIONS
-----------------------------------
19.01 The Rules and Regulations attached hereto as Exhibit C are hereby
incorporated by reference herein and made a part hereof. Tenant shall abide by,
and faithfully observe and comply with the Rules and Regulations and any
reasonable and non-discriminatory amendments, modifications and/or additions
thereto as may hereafter be adopted and published by written notice to tenants
by Landlord for the safety, care, security, good order and/or cleanliness of the
Premises and/or the Building. Landlord shall not be liable to Tenant for any
violation of such rules and regulations by any other tenant or occupant of the
Building. The Landlord shall enforce the rules and regulations in a
nondiscriminatory manner.
ARTICLE XX - ESTOPPEL CERTIFICATES
----------------------------------
20.01 Tenant agrees at any time and from time to time upon not less than
ten (10) days' prior written notice from Landlord to execute, acknowledge and
deliver to Landlord a statement in writing addressed and certifying to Landlord,
to any current or prospective Mortgagee or any assignee thereof, to any
prospective purchaser of the land, improvements or both comprising the Building,
and to any other party designated by Landlord, that to the extent true, this
Lease is unmodified and in full force and effect (of if there have been
modifications, that the same is in full force and effect as modified and stating
the modifications); that Tenant has accepted possession of the Premises, which
are acceptable in all respects, and that any improvements required by the terms
of this Lease to be made by Landlord have been completed to the satisfaction of
Tenant; that Tenant is in full occupancy of the Premises; that no rent has been
paid more than thirty (30) days in advance; that the first month's Base Rent has
been paid; that Tenant is entitled to no free rent or other concessions except
as stated in this Lease; that Tenant has not been notified of any previous
assignment of Landlord's or any predecessor landlord's interest under this
Lease; the dates to which Base Rent, additional rental and other charges have
been paid; that Tenant, as of the date of such certificate, has no charge, lien
or claim of setoff under this Lease or otherwise against Base Rent, additional
rental or other charges due or to become due under this Lease; that Landlord is
not in default in performance of any covenant, agreement or condition contained
in this Lease; or any other matter relating to this Lease or the Premises or, if
so, specifying each such default. If there is a Guaranty under this Lease, said
Guarantor shall confirm the validity of the Guaranty by joining in the execution
of the Estoppel Certificate or other documents so requested by Landlord or
Mortgagee. In addition, in the event that such certificate is being given to
any Mortgagee, such statement may contain any other provisions customarily
required by such Mortgagee including, without limitation, an agreement on the
part of Tenant to furnish to such Mortgagee, written notice of any Landlord
default and a reasonable opportunity for such Mortgagee to cure such default
prior to Tenant being able to terminate this Lease. Any such statement
delivered pursuant to this Section may be relied upon by Landlord or any
Mortgagee, or prospective purchaser to whom it is addressed and such statement,
if required by its addressee, may
17
so specifically state. If Tenant does not execute, acknowledge and deliver to
Landlord the statement as and when required herein, Landlord is hereby granted
an irrevocable power-of-attorney, coupled with an interest, to execute such
statement on Tenant's behalf, which statement shall be binding on Tenant to the
same extent as if executed by Tenant.
ARTICLE XXI - ENTRY BY LANDLORD
-------------------------------
21.01 Landlord may enter the Premises at all reasonable times upon prior
telephonic notice to: inspect the same; exhibit the same to prospective
purchasers, Mortgagees or tenants; determine whether Tenant is complying with
all of its obligations under this Lease; supply janitorial and other services to
be provided by Landlord to Tenant under this Lease; post notices of non-
responsibility; and make repairs or improvements in or to the Building or the
Premises; provided, however, that all such work shall be done as promptly as
reasonably possible and so as to cause as little interference to Tenant as
reasonably possible. 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 or any other loss occasioned by
such entry. Landlord shall at all times have and retain a key with which to
unlock all of the doors in, on or about the Premises (excluding Tenant's vaults,
safes and similar areas designated by Tenant in writing in advance), and
Landlord shall have the right to use any and all means by which Landlord may
deem proper to open such doors to obtain entry to the Premises, and any entry to
the Premises obtained by Landlord by any such means, shall not under any
circumstances be deemed or construed to be a forcible or unlawful entry into or
a detainer of the Premises or an eviction, actual or constructive, of Tenant
from any part of the Premises. Such entry by Landlord shall not act as a
termination of Tenant's duties under this Lease. If Landlord shall be required
to obtain entry by means other than a key provided by Tenant, the cost of such
entry shall by payable by Tenant to Landlord as additional rent.
ARTICLE XXII
------------
LANDLORD'S LEASE UNDERTAKINGS-EXCULPATION FROM PERSONAL LIABILITY;
------------------------------------------------------------------
TRANSFER OF LANDLORD'S INTEREST
-------------------------------
22.01 Landlord's Lease Undertakings. Notwithstanding anything to the
------------------------------
contrary contained in this Lease or in any exhibits, Riders or addenda hereto
attached (collectively the "Lease Documents"), it is expressly understood and
agreed by and between the parties hereto that: (a) the recourse of Tenant or
its successors or assigns against Landlord with respect to the alleged breach by
or on the part of Landlord of any representation, warranty, covenant,
undertaking or agreement contained in any of the Lease Documents or otherwise
arising out of Tenant's use of the Premises or the Building (collectively,
"Landlord's Lease Undertakings") shall extend only to Landlord's interest in the
real estate of which the Premises demised under the Lease Documents are a part
("Landlord's Real Estate") and not to any other assets of Landlord or its
officers, directors, or shareholders; and (b) except to the extent of Landlord's
interest in Landlord's Real Estate, no personal liability or personal
responsibility of any sort with respect to any of Landlord's Lease Undertakings
or any alleged breach thereof is assumed by, or shall at any time be asserted or
enforceable against, Landlord, Heitman Capital Management LLC, Kennedy-Wilson
Properties Ltd., Kennedy-Wilson Pennsylvania Management Inc., or against any of
their respective directors, officers, employees, agents, constituent partners,
beneficiaries, trustees or representatives.
22.02 Transfer of Landlord's Interest. In the event of any transfer of
--------------------------------
Landlord's interest in the Building, Landlord shall be automatically freed and
relieved from all applicable liability with respect to performance of any
covenant or obligation on the part of Landlord, provided any deposits or advance
rents held by Landlord are turned over to the grantee and said grantee expressly
assumes, subject to the limitations of this Section 22, all the terms, covenants
and conditions of this Lease to be performed on the part of Landlord, it being
intended hereby that the covenants and obligations contained in this Lease on
the part of Landlord shall, subject to all the provisions of this Section 22, be
binding on Landlord, its successors and assigns, only during their respective
periods of ownership.
22.03 Tenant's Lease Undertakings. Notwithstanding anything to the
----------------------------
contrary contained in the Lease Documents, except as expressly set forth under
corporation law in Tenant's state of incorporation or under the United States
Bankruptcy Act, it is expressly understood and agreed by and between the parties
hereto that the recourse of Landlord of its successors or assigns against Tenant
with respect to the alleged breach by or on the part of Tenant of any
representation, warranty, covenant, undertaking or agreement contained in any
of the Lease Documents or otherwise arising out of Tenant's use of the Premises
or the Building (collectively, Tenant's Lease Undertakings) shall extend only to
the Tenant and no personal Liability, or personal responsibility of any sort
with respect to any of Tenant's Lease Undertakings or any alleged breach thereof
is assumed by, or shall at any time be asserted or enforceable against any of
Tenant's directors, officers, employees, agents, or representatives.
ARTICLE XXIII - HOLDOVER TENANCY
--------------------------------
23.01 If Tenant holds possession of the Premises after the expiration or
termination of the Lease Term, by lapse of time or otherwise, Tenant shall
become a tenant at sufferance upon all of the terms contained herein, except as
to Lease Term and Rent. During such holdover period, Tenant shall pay to
Landlord a monthly rental equivalent to one hundred fifty percent (150%) of the
Rent Payable by Tenant to Landlord with respect to the last
18
month of the Lease Term. The monthly rent payable for such holdover period shall
in no event be construed as a penalty or as liquidated damages for such
retention of possession. Without limiting the foregoing, Tenant hereby agrees to
indemnify, defend and hold harmless Landlord, its beneficiary, and their
respective agents, contractors and employees, from and against any and all
claims, liabilities, actions, losses, damages (including without limitation,
direct, indirect, incidental and consequential) and expenses (including, without
limitation, court costs and reasonable attorneys' fees) asserted against or
sustained by any such party and arising from or by reason of such retention of
possession, which obligations shall survive the expiration or termination of the
Lease Term.
ARTICLE XXIV - NOTICES
----------------------
24.01 All notices which Landlord or Tenant may be required, or may desire,
to serve on the other may be served, as an alternative to personal service, by
mailing the same by registered or certified mail, postage prepaid, addressed to
Landlord at the address for Landlord set forth in Section 1.12 above and to
Tenant at the address for Tenant set forth in Section 1.13 above, or, from and
after the Commencement Date, to Tenant at the Premises whether or not Tenant has
departed from, abandoned or vacated the Premises, or addressed to such other
address or addresses as either Landlord or Tenant may from time to time
designate to the other in writing. Any notice shall be deemed to have been
served at the time the same was posted.
ARTICLE XXV - BROKERS
---------------------
25.01 The parties recognize as the broker(s) who procured this Lease the
firm(s) specified in Section 1.14 and agree that Landlord shall be solely
responsible for the payment of any brokerage commissions to said broker(s), and
that Tenant shall have no responsibility therefor unless written provision to
the contrary has been made a part of this Lease. If Tenant has dealt with any
other person or real estate broker in respect to leasing, subleasing or renting
space in the Building, Tenant shall be solely responsible for the payment of any
fee due said person or firm and Tenant shall protect, indemnify, hold harmless
and defend Landlord from any liability in respect thereto.
ARTICLE XXVI - ELECTRONIC SERVICES
----------------------------------
26.01 Tenant's Lines. Tenant may, in a manner consistent with the
---------------
provisions and requirements of this Lease, install, maintain, replace, remove or
use any communications or computer or other electronic service wires, cables and
related devices (collectively the "Lines") at the Building in or serving the
Premises, provided: (a) Tenant shall obtain Landlord's prior written consent,
which consent may be conditioned as required by Landlord, (b) if Tenant at any
time uses any equipment that may create an electromagnetic field exceeding the
normal insulation ratings of ordinary twisted pair riser cable or cause
radiation higher than normal background radiation, the Lines therefor (including
riser cables) shall be appropriately insulated to prevent such excessive
electromagnetic fields or radiation, and (c) Tenant shall pay all costs in
connection therewith. Landlord reserves the right to require that Tenant remove
any Lines which are installed in violation of these provisions. Tenant shall
not, without the prior written consent of Landlord in each instance, grant to
any third party a security interest or lien in or on the Lines, and any such
security interest or lien granted without Landlord's written consent shall be
null and void.
26.02 Definition of Electronic Services. As used herein "Electronic
---------------------------------
Services Provider" means a business which provides telephone, telegraph, telex,
video, other telecommunications or other services which permit Tenant to receive
or transmit information by the use of electronics and which require the use of
wires, cables, antennas or similar devices in or on the Building. The services
of Electronic Services Providers are sometimes referred to herein as "Electronic
Services."
26.03 No Right to Specific Services. Landlord shall have no obligation (i)
-----------------------------
to install any Electronic Services equipment or facilities, (ii) to make
available to Tenant the services of any particular Electronic Services Provider,
(iii) to allow any particular Electronic Services Provider access to the
Building, (iv) to continue to grant access to an Electronic Services Provider
once such provider has been given access to the Building. Landlord may (but
shall not have the obligation to): (x) install new Lines at the property, (y)
create additional space for Lines at the property, and (z) adopt reasonable and
uniform rules and regulations with respect to Lines.
26.04 Limitation of Landlord's Responsibility. Tenant acknowledges and
---------------------------------------
agrees that all Electronic Services desired by Tenant shall be ordered and
utilized at the sole expense of Tenant. Unless Landlord otherwise requests or
consents in writing, all of Tenant's Electronic Services equipment shall be and
remain solely in the Tenant's premises and the telephone closet(s) on the
floor(s) on which the Tenant's premises is located, in accordance with rules and
regulations adopted by Landlord from time to time. Unless otherwise
specifically agreed to in writing, Landlord shall have no responsibility for the
maintenance of Tenant's Electronic Services equipment, including Lines; nor for
any Lines or other infrastructure to which Tenant's Electronic Services
equipment may be connected. Tenant agrees that, to the extent any Electronic
Services are interrupted, curtailed or discontinued, Landlord shall have no
obligation or liability with respect thereto and it shall be the sole obligation
of Tenant at its own expense to obtain substitute service. Except to the extent
arising from the intentional or grossly negligent acts of Landlord or Landlord's
agents or employees, Landlord shall have no liability for damages arising from,
and Landlord does not warrant that Tenant's use of any Lines will be free from
the following (collectively called "Line Problems"): (x) any eavesdropping or
wire-tapping by unauthorized parties, (y) any failure of any Lines to satisfy
19
Tenant's requirements, or (z) any shortages, failures, variations,
interruptions, disconnections, loss or damage caused by the installation,
maintenance, replacement, use or removal of Lines by or for other tenants or
occupants at the property. Under no circumstances shall any Line Problems be
deemed an actual or constructive eviction of Tenant, render Landlord liable to
Tenant for abatement of Rent, or relieve Tenant from performance of Tenant's
obligations under this Lease. Landlord in no event shall be liable for damages
by reason of loss of profits, business interruption or other consequential
damage arising from any Line Problems.
26.05 Necessary Service Interruptions. Landlord shall have the right,
-------------------------------
upon reasonable prior notice to Tenant, to interrupt or turn off Electronic
Services facilities in the event of emergency or as necessary in connection with
maintenance, repairs or construction at the Building or installation of
Electronic Services equipment for other Tenants of the Building or on account of
violation by the Electronic Services Provider or owner of the Electronic
Services equipment of any obligation to Landlord or in the event that Tenant's
use of the Electronic Services infrastructure of the Building materially
interferes with the Electronic Services of other tenants of the Building.
26.06 Removal of Equipment, Wiring and Other Facilities. Any and all
-------------------------------------------------
Electronic Services equipment installed in the Tenant's Premises or elsewhere in
the Building by or on behalf of Tenant, including Lines, or other facilities for
Electronic Services reception or transmittal, shall be removed prior to the
expiration or earlier termination of the Lease term, by Tenant at its sole cost
or, at Landlord's election, by Landlord at Tenant's sole cost, with the cost
thereof to be paid as additional rent. Landlord shall have the right, however,
upon written notice to Tenant given no later than thirty (30) days prior to the
expiration or earlier termination of the Lease term (except that the notice
period shall extend to thirty (30) days beyond the date of termination of the
Lease if it is terminated by either party due to a default by the other), to
require Tenant to abandon and leave in place, without additional payment to
Tenant or credit against rent, any and all Electronic Services Lines and related
infrastructure, or selected components thereof, whether located in the Tenant's
premises or elsewhere in the Building.
26.07 New Provider Installations. In the event that Tenant wishes at any
--------------------------
time to utilize the services of an Electronic Services Provider whose equipment
is not then servicing the Building, no such Electronic Services Provider shall
be permitted to install its Lines or other equipment within the Building without
first securing the prior written approval of the Landlord. Landlord's approval
shall not be deemed any kind of warranty or representation by Landlord,
including, without limitation, any warranty or representation as to the
suitability, competence, or financial strength of the Electronic Services
Provider. Without limitation of the foregoing standard, unless all of the
following conditions are satisfied to Landlord's satisfaction, it shall be
reasonable for Landlord to refuse to give its approval: (i) Landlord shall incur
no current expense or risk or future expense whatsoever with respect to any
aspect of the Electronic Services Provider's provision of its Electronic
Services, including without limitation, the costs of installation, materials and
services; (ii) prior to commencement of any work in or about the Building by the
Electronic Services Provider, the Electronic Services Provider shall supply
Landlord with such written indemnities, insurance, financial statements, and
such other items as Landlord reasonably determines to be necessary to protect
its financial interests and the interests of the Building relating to the
proposed activities of the Electronic Services Provider; (iii) the Electronic
Services Provider agrees to abide by such rules and regulations, Building and
other codes, job site rules and such other requirements as are reasonably
determined by Landlord to be necessary to protect the interests of the Building,
the Tenants in the Building and Landlord, in the same or similar manner as
Landlord has the right to protect itself and the Building with respect to
proposed alterations as described in Article IX of this Lease; (iv) Landlord
reasonably determines that, considering other potential uses for space in the
Building, there is sufficient space in the Building for the placement of all of
the provider's equipment, conduit, Lines and other materials; (v) the Electronic
Services Provider agrees to abide by Landlord's requirements, if any, that
provider use existing Building conduits and pipes or use Building contractors
(or other contractors approved by Landlord); (vi) Landlord receives from the
Electronic Services Provider such compensation as is reasonably determined by
Landlord to compensate it for space used in the Building for the storage and
maintenance of the Electronic Services Provider's equipment, for the fair market
value of a Electronic Services Provider's access to the Building, for the use of
common or core space within the Building and the costs which may reasonably be
expected to be incurred by Landlord; (vii) the provider agrees to deliver to
Landlord detailed "as built" plans immediately after the installation of the
provider's equipment is complete; and (viii) all of the foregoing matters are
documented in a written license agreement between Landlord and the provider, the
form and content of which is reasonably satisfactory to Landlord."
26.08 Limit of Default or Breach. Notwithstanding any provision of the
--------------------------
proceeding paragraphs to the contrary, the refusal of Landlord to grant its
approval to any prospective Electronic Services Provider shall not be deemed a
default or breach by Landlord of its obligation under this Lease unless and
until Landlord is adjudicated to have acted recklessly or maliciously with
respect to Tenant's request for approval, and in that event, Tenant shall still
have no right to terminate the Lease or claim an entitlement to rent abatement,
but may as Tenant's sole and exclusive recourse seek a judicial order of
specific performance compelling Landlord to grant its approval as to the
prospective provider in question. The provisions of this paragraph may be
enforced solely by Tenant and Landlord, are not for the benefit of any other
party, and specifically but without limitation, no telephone or other Electronic
Services Provider shall be deemed a third party beneficiary of this Lease.
26.09 Installation and Use of Wireless Technologies. Tenant shall not
---------------------------------------------
utilize any wireless Electronic Services equipment (other than usual and
customary cellular telephones or wireless LAN so long as not to interfere with
other tenants'), including antennae and satellite receiver dishes, within the
Tenant's premises, within the Building or attached to the outside walls or roof
of the Building, without Landlord's prior written consent. Such consent may be
conditioned in such a manner so as to protect Landlord's financial interests and
the interests of the Building, and the other tenants therein, in a manner
similar to the arrangements described in the immediately preceding paragraphs.
20
26.10 Limitation of Liability For Equipment Interference. In the event
--------------------------------------------------
that Electronic Services equipment, Lines and facilities or satellite and
antennae equipment of any type installed by or at the request of Tenant within
the Tenant's premises, on the roof, or elsewhere within or on the Building
causes interference to equipment used by another party, Tenant shall cease using
such equipment, Lines and facilities or satellite and antennae equipment until
the source of the interference is identified and eliminated and Tenant shall
assume all liability related to such interference. Tenant shall cooperate with
Landlord and other parties, to eliminate such interference promptly. In the
event that Tenant is unable to do so, Tenant will substitute alternative
equipment which remedies the situation. If such interference persists, Tenant
shall, at Landlord's sole discretion, remove such equipment.
ARTICLE XXVII - MISCELLANEOUS
-----------------------------
27.01 Entire Agreement. This Lease contains all of the agreements and
-----------------
understandings relating to the leasing of the Premises and the obligations of
Landlord and Tenant in connection with such leasing. Landlord has not made, and
Tenant is not relying upon, any warranties, or representations, promises or
statements made by Landlord or any agent of Landlord, except as expressly set
forth herein. This Lease supersedes any and all prior agreements and
understandings between Landlord and Tenant and alone expresses the agreement of
the parties.
27.02 Amendments. This Lease shall not be amended, changed or modified
------------
in any way unless in writing executed by Landlord and Tenant. Landlord shall
not have waived or released any of its rights hereunder unless in writing and
executed by Landlord.
27.03 Successors. Except as expressly provided herein, this Lease and
-----------
the obligations of Landlord and Tenant contained herein shall bind and benefit
the successors and assigns of the parties hereto.
27.04 Force Majeure. Neither party shall incur liability to the other
--------------
with respect to, and shall not be responsible for any failure to perform, any
obligations hereunder if such failure is caused by any reason beyond the control
of the party claiming force majeure including, but not limited to, strike, labor
trouble, governmental rule, regulations, ordinance, statute or interpretation,
or by fire, earthquake, civil commotion, or failure or disruption of utility
services. The amount of time for the affected party to perform any of its
obligations shall be extended by the amount of time it is delayed in performing
such obligation by reason of any force majeure occurrence whether similar to or
different from the foregoing types of occurrences. Notwithstanding the
foregoing, Tenant shall not be relieved of any obligation of payment hereunder
by reason of any claim of force majeure by Tenant.
27.05 Survival of Obligations.
------------------------
(A) Any obligations of Tenant accruing prior to the expiration of the
Lease shall survive the expiration or earlier termination of the Lease, and
Tenant shall promptly perform all such obligations whether or not this Lease has
expired or been terminated.
(B) ) Any obligations of Landlord pursuant to Sections 10.01B, 10.03C,
10.06 and 16 accruing prior to the expiration of the Lease shall survive the
expiration or earlier termination of the Lease, and Landlord shall promptly
perform all such obligations whether or not this Lease has expired or been
terminated.
27.06 Light and Air. No diminution or shutting off of any light, air or
--------------
view by any structure now or hereafter erected shall in any manner affect this
Lease or the obligations of Tenant hereunder, or increase any of the obligations
of Landlord hereunder.
27.07 Governing Law. This Lease shall be governed by, and construed in
--------------
accordance with, the laws of the Commonwealth of Pennsylvania.
27.08 Severability. In the event any provision of this Lease is found to
-------------
be unenforceable, the remainder of this Lease shall not be affected, and any
provision found to be invalid shall be enforceable to the extent permitted by
law. The parties agree that in the event two different interpretations may be
given to any provision hereunder, one of which will render the provision
unenforceable, and one of which will render the provision enforceable, the
interpretation rendering the provision enforceable shall be adopted.
27.09 Captions. All captions, headings, titles, numerical references and
---------
computer highlighting are for convenience only and shall have no effect on the
interpretation of this Lease.
27.10 Interpretation. Tenant acknowledges that it has read and reviewed
---------------
this Lease and that it has had the opportunity to confer with counsel in the
negotiation of this Lease. Accordingly, this Lease shall be construed neither
for nor against Landlord or Tenant, but shall be given a fair and reasonable
interpretation in accordance with the meaning of its terms and the intent of the
parties.
27.11 Independent Covenants. Each covenant, agreement, obligation or
----------------------
other provision of this Lease to be performed by Tenant are separate and
independent covenants of Tenant, and not dependent on any other provision of the
Lease.
27.12 Number and Gender. All terms and words used in this Lease,
------------------
regardless of the number or gender in which they are used, shall be deemed to
include the appropriate number and gender, as the context may require.
21
27.13 Time is of the Essence. Time is of the essence of this Lease and
-----------------------
the performance of all obligations hereunder.
27.14 Joint and Several Liability. If Tenant comprises more than one
-----------------------------
person or entity, or if this Lease is guaranteed by any party, all such persons
shall be jointly and severally liable for payment of rents and the performance
of Tenant's obligations hereunder. If Tenant comprises more than one person or
entity and fewer than all of the persons or entities comprising Tenant abandon
the Premises, Landlord, at its sole option, may treat the abandonment by such
person or entities as an event of default and exercise with respect to such
persons the rights and remedies provided in Article XV without affecting the
right or obligations of the persons or entities comprising Tenant which have not
abandoned the property.
27.15 Exhibits. Exhibits A (Outline of Premises), B (Work Letter
---------
Agreement), C (Rules and Regulations) and E (Suite Acceptance Letter) are
incorporated into this Lease by reference and made a part hereof.
27.16 Offer to Lease. The submission of this Lease to Tenant or its
---------------
broker or other agent, does not constitute an offer to Tenant to lease the
Premises. This Lease shall have no force and effect until (a) it is executed
and delivered by Tenant to Landlord and (b) it is fully reviewed and executed by
Landlord; provided, however, that, upon execution of this Lease by Tenant and
delivery to Landlord, such execution and delivery by Tenant, shall, in
consideration of the time and expense incurred by Landlord in reviewing the
Lease and Tenant's credit, constitute an offer by Tenant to lease the Premises
upon the terms and conditions set forth herein (which offer to Lease shall be
irrevocable for twenty (20) business days following the date of delivery).
27.17 No Counterclaim; Choice of Laws. It is mutually agreed that in the
--------------------------------
event Landlord commences any summary proceeding for non-payment of Rent, Tenant
will not interpose any counterclaim (other than compulsory counterclaims) of
whatever nature or description in any such proceeding. In addition, both
parties hereby submits to local jurisdiction in Allegheny County in the
Commonwealth of Pennsylvania and agrees that any action shall be instituted in
the Courts of Allegheny County in the Commonwealth of Pennsylvania and that both
parties consent to personal jurisdiction for any action in the Commonwealth of
Pennsylvania.
27.18 Electrical Service to the Premises. Anything set forth in Section
-----------------------------------
7.01 or elsewhere in this Lease to the contrary notwithstanding, electricity to
the Premises shall not be furnished by Landlord, but shall be furnished by the
approved electric utility company serving the Building. Landlord shall permit
Tenant to receive such service directly from such utility company at Tenant's
cost (except as otherwise provided herein) and shall permit Landlord's wire and
conduits, to the extent available, suitable and safely capable, to be used for
such purposes.
27.19 Rights Reserved by Landlord. Landlord reserves the following
----------------------------
rights exercisable without notice (except as otherwise expressly provided to the
contrary in this Lease) and without being deemed an eviction or disturbance of
Tenant's use or possession of the Premises or giving rise to any claim for set-
off or abatement of Rent: (i ) to change the name or street address of the
Building; (ii) to install, affix and maintain all signs on the exterior and/or
interior of the Building; (iii) to designate and/or approve prior to
installation, all types of signs, window shades, blinds, drapes, awnings or
other similar items, and all internal lighting that may be visible from the
exterior of the Premises and, notwithstanding the provisions of Article IX, the
design, arrangement, style, color and general appearance of the portion of the
Premises visible from the exterior, or the interior glass, and contents thereof,
including, without limitation, furniture, fixtures, signs, art work, wall
coverings, carpet and decorations, and all changes, additions and removals
thereto, shall, at all times have the appearance of premises having the same
type of exposure and used for substantially the same purposes that are generally
prevailing in comparable office buildings in the area. Any violation of this
provision shall be deemed a material breach of this Lease; (iv) to change the
arrangement of entrances, doors, corridors, elevators and/or stairs in the
Building, provided no such change shall materially adversely affect access to
the Premises; (v) to grant any party the exclusive right to conduct any business
or render any service in the Building, provided such exclusive right shall not
operate to prohibit Tenant from using the Premises for the purposes permitted
under this Lease; (vi) to prohibit the placement of vending or dispensing
machines of any kind in or about the Premises other than for use by Tenant's
employees; (vii) to prohibit the placement of video or other electronic games in
the Premises; (viii) to have access for Landlord and other tenants of the
Building to any mail boxes located in or on the Premises according to the rules
of the United States Post Office; (ix) to close the Building after normal
business hours, except that Tenant and its employees and invitees shall be
entitled to admission at all times under such rules and regulations as Landlord
prescribes for security purposes; (x) to install, operate and maintain security
systems which monitor all persons entering or leaving the Building; (xi) to
install and maintain pipes, ducts, conduits, wires and structural elements
located in the Premises which serve other parts or other tenants of the
Building; and (xii) to retain at all times master keys or pass keys to the
Premises.
27.20 Parking. Tenant will be entitled to the use of six (6) exclusive
--------
parking spaces, which location is to be designated by Landlord and subject to
change, at no cost to Tenant for the term of the Lease. Tenant shall also be
entitled to the nonexclusive use of non reserved parking spaces at the Building
as may be modified by Landlord from time to time at no cost for the term of the
Lease.
22
ARTICLE XXVIII - RENEWAL OPTION
-------------------------------
28.01 RENEWAL OPTION. Tenant shall have an option (the "Renewal Option")
---------------
to renew the initial term with respect to all (but not less than all) of the
Premises demised under or pursuant to this Lease as of the expiration date of
the Term for one additional term (the "Renewal Term") of five (5) years,
commencing on the day immediately following the expiration date of the initial
Term, under the following terms and conditions and subject to credit approval by
Landlord:
(1) Tenant gives Landlord written notice of its election to exercise the
Renewal Option no earlier than the date which is three hundred sixty-five (365)
days prior to the expiration date of the initial Term and no later than the date
which is two hundred seventy (270) days prior to the expiration date of the
initial Term;
(2) Tenant is not in breach or default under this Lease either on the date
Tenant exercises the Renewal Option or at any time through and including the
proposed commencement date of the Renewal Term.
28.02 TERM. If Tenant timely and properly exercises the Renewal Option in
-----
accordance with the provisions of Section 28.01:
(1) The Rent payable for the Renewal Term shall be based on the then
prevailing rent for similar space in this property, but in no event shall the
rental rate be less than the adjusted rental rate payable under this Lease on
the expiration date of the initial Term. For purposes of the preceding
sentence, "prevailing rental rate" shall mean the total rental then being quoted
by Landlord to third party tenants for reasonably comparable space in the
Building for leases approximately as long, and commencing at approximately the
same time, as the Renewal Term, subject to reasonable adjustment for the
desirability of the applicable floor or area of the Building. If Landlord is
not then quoting rental rates for comparable space, the rates used for purposes
of this provision shall be those rates Landlord would have used if Landlord had
quoted such rates. Landlord's good faith determination of the "prevailing
rental rate" shall be conclusive and binding as to Landlord and Tenant. If
Tenant timely and properly exercises the Renewal Option, Landlord agrees to give
Tenant written notice setting forth the prevailing rental rate, which notice
shall be given prior to the commencement date of the Renewal Term.
(2) Tenant shall have no further options to renew the initial Term of this
Lease beyond the expiration date of the Renewal Term.
(3) Landlord will not be required to give any economic concession in
connection with the exercise of this option except Landlord shall give an
allowance for leasehold improvement similar to that given to other recent
renewal tenants of similar size in Foster Plaza building 9 and 10.
(4) Except as otherwise provided herein, all of the terms and provisions of
this Lease shall remain the same and in full force and effect during the Renewal
Term.
28.03 AMENDMENT. If Tenant exercises the Renewal Option, Landlord and
----------
Tenant shall execute and deliver an amendment to this Lease (or, at Landlord's
option, a new lease on the form then in use for the Building) reflecting the
lease of the Premises by Landlord to Tenant for the Renewal Term on the terms
provided above, which amendment (or new lease, as the case may be) shall be
executed and delivered prior to the commencement date of the Renewal Term.
28.04 TERMINATION. The Renewal Option shall automatically terminate and
------------
become null and void and of no force or effect upon the earlier to occur of (1)
the expiration or termination of this Lease, (2) the termination of the Tenant's
right to possession of the Premises, (3) the assignment of this Lease by Tenant
other than to an Affiliate, (4) the sublease by Tenant of all or part of the
Premises, or (5) the failure of Tenant to timely or properly exercise the
Renewal Option or (6) the occurrence of an Event of Default by Tenant under the
Lease during the final year of the Lease.
ARTICLE XXIX - RIGHT OF FIRST OFFER
-----------------------------------
29.01 Right of First Offer for Expansion Space. For purposes of this
-----------------------------------------
Lease, "Expansion Space" shall mean the remaining space located on the fifth
(5th) floor of the Building, as more particularly shown on Exhibit A-2 attached
hereto. Subject to the rights of existing tenants whose leases pre-date this
Lease, credit approval by Landlord which shall not be unreasonably withheld and
provided Tenant is not in default under this Lease at the time the Expansion
Space becomes available, or at any time through and including execution of a
lease amendment by the Landlord for the subject space, Tenant shall have a right
of first offer to lease the Expansion Space, such right commencing on the
Commencement Date of this Lease and expiring on the last day of the sixtieth
(60th) month of the lease term, subject to the following conditions. Landlord
shall provide Tenant with written notice of the availability of all or a portion
of the Expansion Space. Within five (5) business days of such notification,
Tenant shall notify Landlord in writing sent certified mail, return receipt
requested, with postage prepaid thereon that it elects to exercise its right of
23
first offer for the Expansion Space. If Tenant does not so notify Landlord,
Tenant will be deemed to have waived its right of first offer respecting all or
the portion of the Expansion Space set forth in the Landlord's notice until such
time as such Expansion Space again becomes available. The Base Rent for the
Expansion Space shall be in the amount of $23.00 per rentable square foot, with
a Base Year of 2001 and for a term which is coterminous with the term of this
Lease. If Tenant fails to execute and deliver an amendment to this Lease
consistent with the foregoing within fifteen (15) days after receipt by Tenant
of the subject lease amendment, then Tenant's previous exercise of its right to
lease the Expansion Space shall be deemed null and void and Landlord shall
thereafter have the right to let the space to any third party tenant. The
rights of Tenant under this Article are personal and may not be assigned to or
exercised by any other party.
In the event Tenant exercises any Right of First Offer for Expansion Space,
all of the terms and provisions of this Lease shall be applicable to the
Expansion Space thereby included in the Premises, except that (i) Tenant shall
not be entitled to any rent abatement for the Expansion Space and (ii) the
annual rate of Base Rent for the Expansion Space, as adjusted based on increases
in operating costs, taxes, shall be equal to the amount that Tenant is paying at
the time of expansion.
In the event Tenant exercises the Right of First Offer for Expansion Space,
Landlord and Tenant shall promptly execute and deliver an amendment to this
Lease reflecting the inclusion of the Expansion Space in the Premises on the
terms herein provided.
In the event Tenant exercises the Right of First Offer for Expansion Space
within 36 months of the Commencement Date, Tenant shall receive an improvement
allowance of $27.00 per rentable square foot of the Expansion Space multiplied
by a fraction, the numerator of which is the number of months remaining in the
term as of the date the Expansion Space is added to the Premises and the
denominator of which is 72 .
The Right of First Offer for Expansion Space shall automatically terminate
upon the earlier to occur of (i) the expiration or termination of this Lease,
(ii) the termination of Tenant's right to possession of the Premises, (iii) the
assignment of this Lease by Tenant other than to an Affilliate or the sublease
by Tenant of the Premises, or any part thereof, (iv) the failure of Tenant to
exercise any right to lease space under its Right of First Offer for Expansion
Space, or (v) the occurrence of an Event of Default under the Lease.
ARTICLE XXX TERMINATION OPTION
------------------------------
30.01 Termination Option. Tenant shall have the option (the "Termination
-------------------
Option") to terminate this Lease effective as of last day of the 48th month of
the lease term , (the "Termination Date") upon the following terms and
conditions:
(a) Tenant gives Landlord written notice of Tenant's election to exercise the
Termination Option at least one hundred eighty (180) days prior to the
Termination Date.
(b) There is no uncured Event of Default by Tenant either on the date Tenant
exercises the Termination Option, or at any time prior to the Termination
Date; and
(c) Tenant pays to Landlord concurrently with its exercise of the Termination
Option, a cancellation fee in an amount equal to $165,973.50 plus two (2)
months adjusted Base Rent plus the unamortized portion (amortized at a 10%
interest rate)of any tenant improvement allowance received by Tenant for
expansion space. This payment shall be made by certified check, bank draft
or wire transfer.
In the event Tenant timely and properly exercises the Termination Option, the
Term shall terminate effective as of the Termination Date. Rent shall be paid
through and apportioned as of the Termination Date, and neither Landlord nor
Tenant shall have any rights, estates, liabilities or obligations accruing under
this Lease after the Termination Date, except such rights and liabilities which,
by the terms of this Lease are obligations of the Tenant which can survive the
expiration of the Lease. The Termination Option shall automatically terminate
and become null and void upon; a) the failure of Tenant to timely or properly
exercise the Termination Option; b) the assignment or sublease of the Premises
other than to an Affiliate, or any part thereof, by Tenant; and c) Tenant's
right to possession of the Premises is terminated.
24
IN WITNESS WHEREOF, the parties hereto have executed this lease as of the
date first above written.
LANDLORD: TENANT:
FOSTER PLAZA HOLDING CORP., a Pennsylvania IGATE CAPITAL INC.,
corporation a Delaware corporation
By: HEITMAN CAPITAL MANAGEMENT LLC,
an Iowa limited liability company,
Investment Manager
By:_____________________________________ By: _____________________________
Its:______________________________________ Its:_____________________________
25
EXHIBIT A
FLOOR PLAN OF PREMISES
----------------------
1
EXHIBIT B
WORK LETTER AGREEMENT
---------------------
[Landlord Performs Work]
[Allowance]
This Work Letter Agreement ("Work Letter") is executed simultaneously with
that certain Office Lease (the "Lease") between IGATE CAPITAL INC., a Delaware
corporation, as "Tenant", and FOSTER PLAZA HOLDING CORP., a Pennsylvania
corporation, as "Landlord", relating to demised premises ("Premises") at the
building commonly known as FOSTER PLAZA X (the "Building"), which Premises are
more fully identified in the Lease. Capitalized terms used herein, unless
otherwise defined in this Work Letter, shall have the respective meanings
ascribed to them in the Lease.
For and in consideration of the agreement to lease the Premises and the
mutual covenants contained herein and in the Lease, Landlord and Tenant hereby
agree as follows:
1. Tenant's Initial Plans; the Work. Tenant desires Landlord to perform
---------------------------------
certain leasehold improvement work in the Premises in substantial accordance
with the plan or plans (collectively, the "Initial Plan") to be prepared by
Renessance 3 Architects. Such work, as shown in the Initial Plan and as more
fully detailed in the Working Drawings (as defined and described in Paragraph 2
below), shall be hereinafter referred to as the "Work". Not later than June 14,
2000, Tenant shall furnish to Landlord such additional plans, drawings,
specifications and finish details as Landlord may reasonably request to enable
Landlord's architects and engineers to prepare mechanical, electrical and
plumbing plans and to prepare the Working Drawings, including a final telephone
layout and special electrical connection requirements, if any. All plans,
drawings, specifications and other details describing the Work which have been
or are hereafter furnished by or on behalf of Tenant shall be subject to
Landlord's approval, which Landlord agrees shall not be unreasonably withheld.
Landlord shall not be deemed to have acted unreasonably if it withholds its
approval of any plans, specifications, drawings or other details or of any
Additional Work (as defined in Paragraph 7 below) because, in Landlord's
reasonable opinion, the work, as described in any such item, or the Additional
Work, as the case may be: (a) is likely to adversely affect Building systems,
the structure of the Building or the safety of the Building and/or its
occupants; (b) might impair Landlord's ability to furnish services to Tenant or
other tenants in the Building; (c) would increase the cost of operating the
Building; (d) would violate any governmental laws, rules or ordinances (or
interpretations thereof); (e) contains or uses hazardous or toxic materials or
substances; (f) would adversely affect the appearance of the Building; (g) might
adversely affect another tenant's premises; (h) is prohibited by any ground
lease affecting the Building or any mortgage, trust deed or other instrument
encumbering the Building; or (i) is likely to be substantially delayed because
of unavailability or shortage of labor or materials necessary to perform such
work or the difficulties or unusual nature of such work. The foregoing reasons,
however, shall not be the only reasons for which Landlord may withhold its
approval, whether or not such other reasons are similar or dissimilar to the
foregoing. Neither the approval by Landlord of the Work or Initial Plan or any
other plans, drawings, specifications or other items associated with the Work
nor Landlord's performance, supervision or monitoring of the Work shall
constitute any warranty by Landlord to Tenant of the adequacy of the design for
Tenant's intended use of the Premises.
2. Working Drawings. If necessary for the performance of the Work and not
-----------------
included as part of the Initial Plan attached hereto, Landlord shall prepare or
cause to be prepared final working drawings and specifications for the Work (the
"Working Drawings") based on and consistent with the Initial Plan and the other
plans, drawings, specifications, finish details and other information furnished
by Tenant to Landlord and approved by Landlord pursuant to Paragraph 1 above.
So long as the Working Drawings are consistent with the Initial Plan, Tenant
shall approve the Working Drawings within three (3) days after receipt of same
from Landlord by initialing and returning to Landlord each sheet of the Working
Drawings or by executing Landlord's approval form then in use, whichever method
of approval Landlord may designate.
3. Performance of the Work; Allowance. Except as hereinafter provided to
-----------------------------------
the contrary, Landlord shall cause the performance of the Work using (except as
may be stated or shown otherwise in the Working Drawings) building standard
materials, quantities and procedures then in use by Landlord ("Building
Standards"). Landlord shall pay for a portion of the "Cost of Work" (as defined
below) in an amount not to exceed $348,165.00 (such amount being $27.00 per
rentable square foot of the Premises which is to be improved, as described in
the Working Drawings) (the "Allowance"), and Tenant shall pay for the entire
Cost of the Work in excess of the Allowance. Tenant shall not be entitled to
any credit, abatement or payment from Landlord in the event that the amount of
the Allowance specified above exceeds the Cost of the Work. For purposes of
this Agreement, the term "Cost of the Work" shall mean and include any and all
costs and expenses of the Work, including, without limitation, the cost of the
Working Drawings and of all labor (including overtime) and materials
constituting the Work. Notwithstanding anything to the contrary, any unused
portion of the Allowance not to exceed $4.00 per square foot ($51,580.00) may
shall be credited towards Base Rent.
4. Payment. Prior to commencing the Work, Landlord shall submit to Tenant
--------
a written statement of the total Cost of the Work (which shall include the
amount of any overtime projected as necessary to substantially complete the Work
by the Commencement Date specified in the Lease) as then known by Landlord, and
such statement shall indicate the amount, if any, by which the total Cost of the
Work exceeds the Allowance (the "Excess Costs"). Tenant agrees, within three
(3) days after submission to it of such statement, to execute and deliver to
Landlord, in the form then in use by Landlord, an authorization to proceed with
the Work, and Tenant shall also then pay to Landlord an amount equal to the
Excess Costs. No Work shall be commenced until Tenant has fully complied with
the preceding provisions of this Paragraph 4. In the event, and each time, that
any change order by
1
Tenant, unknown field condition, delay caused by acts beyond
Landlord's control or other event or circumstance causes the Cost of the Work to
be increased after the time that Landlord delivers to Tenant the aforesaid
initial statement of the Cost of the Work, Landlord shall deliver to Tenant a
revised statement of the total Cost of the Work, indicating the revised
calculation of the Excess Costs, if any. Within three (3) days after submission
to Tenant of any such revised statement, Tenant shall pay to Landlord an amount
equal to the Excess Costs, as shown in such revised statement, less the amounts
previously paid by Tenant to Landlord on account of the Excess Costs, and
Landlord shall not be required to proceed further with the Work until Tenant has
paid such amount. Delays in the performance of the Work resulting from the
failure of Tenant to comply with the provisions of this Paragraph 4 shall be
deemed to be delays caused by Tenant.
5. Substantial Completion. Landlord shall cause the Work to be
-----------------------
"substantially completed" on or before the scheduled date of commencement of the
term of the Lease as specified in Section 1.05 of the Lease, subject to delays
caused by strikes, lockouts, boycotts or other labor problems, casualties,
discontinuance of any utility or other service required for performance of the
Work, unavailability or shortages of materials or other problems in obtaining
materials necessary for performance of the Work or any other matter beyond the
control of Landlord (or beyond the control of Landlord's contractors or
subcontractors performing the Work) and also subject to "Tenant Delays" (as
defined and described in Paragraph 6 of this Work Letter). The Work shall be
deemed to be "substantially completed" for all purposes under this Work Letter
and the Lease if and when Landlord's architect issues a written certificate to
Landlord and Tenant, certifying that the Work has been substantially completed
(i.e., completed except for "punchlist" items listed in such architect's
certificate) in substantial compliance with the Working Drawings, or when Tenant
first takes occupancy of the Premises, whichever first occurs. If the Work is
not deemed to be substantially completed on or before the scheduled date of the
commencement of the term of the Lease as specified in Section 1.05 of the Lease,
(a) Landlord agrees to use reasonable efforts to complete the Work as soon as
practicable thereafter, (b) the Lease shall remain in full force and effect, (c)
Landlord shall not be deemed to be in breach or default of the Lease or this
Work Letter as a result thereof and Landlord shall have no liability to Tenant
as a result of any delay in occupancy (whether for damages, abatement of Rent or
otherwise), and (d) except in the event of Tenant Delays, and notwithstanding
anything contained in the Lease to the contrary, the Commencement Date of the
Lease Term as specified in Section 1.05 of the Lease shall be extended to the
date on which the Work is deemed to be substantially completed and the
Expiration Date of the Lease Term as specified in Section 1.06 of the Lease
shall be extended by an equal number of days. At the request of either Landlord
or Tenant in the event of such extensions in the commencement and expiration
dates of the term of the Lease, Tenant and Landlord shall execute and deliver an
amendment to the Lease reflecting such extensions. Landlord agrees to use
reasonable diligence to complete all punchlist work listed in the aforesaid
architect's certificate promptly after substantial completion.
6. Tenant Delays. There shall be no extension of the scheduled
--------------
commencement or expiration date of the term of the Lease (as otherwise
permissibly extended under Paragraph 5 above) if the Work has not been
substantially completed on said scheduled commencement date by reason of any
delay attributable to Tenant ("Tenant Delays"), including without limitation:
(i) the failure of Tenant to furnish all or any plans, drawings,
specifications, finish details or the other information required under Paragraph
1 above on or before the date stated in Paragraph 1;
(ii) the failure of Tenant to grant approval of the Working Drawings
within the time required under Paragraph 2 above;
(iii) the failure of Tenant to comply with the requirements of
Paragraph 4 above;
(iv) Tenant's requirements for special work or materials, finishes, or
installations other than the Building Standards or Tenant's requirements for
special construction staging or phasing;
(v) the performance of any Additional Work (as defined in Paragraph 7
below) requested by Tenant or the performance of any work in the Premises by any
person, firm or corporation employed by or on behalf of Tenant, or any failure
to complete or delay in completion of such work; or
(vi) any other act or omission of Tenant that causes a delay.
7. Additional Work. Upon Tenant's request and submission by Tenant (at
----------------
Tenant's sole cost and expense) of the necessary information and/or plans and
specifications for work other than the Work described in the Working Drawings
("Additional Work") and the approval by Landlord of such Additional Work, which
approval Landlord agrees shall not be unreasonably withheld, Landlord shall
perform such Additional Work, at Tenant's sole cost and expense, subject,
however, to the following provisions of this Paragraph 7. Prior to commencing
any Additional Work requested by Tenant, Landlord shall submit to Tenant a
written statement of the cost of such Additional Work, which cost shall include
a fee payable to Landlord in the amount of 5% of the total cost of such
Additional Work as compensation to Landlord for monitoring the Additional Work
and for administration, overhead and field supervision associated with the
Additional (such fee being hereinafter referred to as "Landlord's Additional
Compensation"), and, concurrently with such statement of cost, Landlord shall
also submit to Tenant a proposed tenant extra order (the "TEO") for the
Additional Work in the standard form then in use by Landlord. Tenant shall
execute and deliver to Landlord such TEO and shall pay to Landlord the entire
cost of the Additional Work, including Landlord's Additional Compensation (as
reflected in Landlord's statement of such cost), within five (5) days after
Landlord's submission of such statement and TEO to Tenant. If Tenant fails to
execute or deliver such TEO or pay the entire cost of such Additional Work
within such 5-day period, then Landlord shall not be
2
obligated to do any of the Additional Work and may proceed to do only the Work,
as specified in the Working Drawings.
8. Tenant Access. Landlord, in Landlord's reasonable discretion and upon
--------------
request by Tenant, may grant to Tenant a license to have access to the Premises
prior to the date designated in the Lease for the commencement of the term of
the Lease to allow Tenant to do other work required by Tenant to make the
Premises ready for Tenant's use and occupancy (the "Tenant's Pre-Occupancy
Work"). It shall be a condition to the grant by Landlord and continued
effectiveness of such license that:
(a) Tenant shall give to Landlord a written request to have such access
to the Premises not less than five (5) days prior to the date on which such
access will commence, which written request shall contain or shall be
accompanied by each of the following items, all in form and substance reasonably
acceptable to Landlord: (i) a detailed description of and schedule for Tenant's
Pre-Occupancy Work; (ii) the names and addresses of all contractors,
subcontractors and material suppliers and all other representatives of Tenant
who or which will be entering the Premises on behalf of Tenant to perform
Tenant's Pre-Occupancy Work or will be supplying materials for such work, and
the approximate number of individuals, itemized by trade, who will be present in
the Premises; (iii) copies of all contracts, subcontracts and material purchase
orders pertaining to Tenant's Pre-Occupancy Work; (iv) copies of all plans and
specifications pertaining to Tenant's Pre-Occupancy Work; (v) copies of all
licenses and permits required in connection with the performance of Tenant's
Pre-Occupancy Work; (vi) certificates of insurance (in amounts satisfactory to
Landlord and with the parties identified in, or required by, the Lease named as
additional insureds) and instruments of indemnification against all claims,
costs, expenses, damages and liabilities which may arise in connection with
Tenant's Pre-Occupancy Work; and (vii) assurances of the ability of Tenant to
pay for all of Tenant's Pre-Occupancy Work and/or a letter of credit or other
security deemed appropriate by Landlord securing Tenant's lien-free completion
of Tenant's Pre-Occupancy Work.
(b) Such pre-term access by Tenant and its representatives shall be
subject to scheduling by Landlord.
(c) Tenant's employees, agents, contractors, workmen, mechanics,
suppliers and invitees shall work in harmony and not interfere with Landlord or
Landlord's agents in performing the Work and any Additional Work in the
Premises, Landlord's work in other premises and in common areas of the Building,
or the general operation of the Building. If at any time any such person
representing Tenant shall cause or threaten to cause such disharmony or
interference, including labor disharmony, and Tenant fails to immediately
institute and maintain such corrective actions as directed by Landlord, then
Landlord may withdraw such license upon twenty-four (24) hours' prior written
notice to Tenant.
(d) Any such entry into and occupancy of the Premises by Tenant or any
person or entity working for or on behalf of Tenant shall be deemed to be
subject to all of the terms, covenants, conditions and provisions of the Lease,
specifically including the provisions of Section IX thereof (regarding Tenant's
improvements and alterations to the Premises), and excluding only the covenant
to pay Rent. Landlord shall not be liable for any injury, loss or damage which
may occur to any of Tenant's Pre-Occupancy Work made in or about the Premises or
to property placed therein prior to the commencement of the term of the Lease,
the same being at Tenant's sole risk and liability. Tenant shall be liable to
Landlord for any damage to the Premises or to any portion of the Work or
Additional Work caused by Tenant or any of Tenant's employees, agents,
contractors, workmen or suppliers. In the event that the performance of
Tenant's Pre-Occupancy Work causes extra costs to Landlord or of other Building
services, Tenant shall reimburse Landlord for such extra cost, and/or shall pay
Landlord for such other building services at Landlord's standard rates then in
effect.
9. Lease Provisions. The terms and provisions of the Lease, insofar as
-----------------
they are applicable to this Work Letter are hereby incorporated herein by
reference. All amounts payable by Tenant to Landlord hereunder shall be deemed
to be additional Rent under the Lease and, upon any default in the payment of
same, Landlord shall have all of the rights and remedies provided for in the
Lease.
10. Miscellaneous.
--------------
(a) This Work Letter shall be governed by the laws of the state in which
the Premises are located.
(b) This Work Letter may not be amended except by a written instrument
signed by the party or parties to be bound thereby.
(c) Any person signing this Work Letter on behalf of Tenant warrants and
represents he/she has authority to sign and deliver this Work Letter and bind
Tenant.
(d) Notices under this Work Letter shall be given in the same manner as
under the Lease.
(e) The headings set forth herein are for convenience only.
(f) This Work Letter sets forth the entire agreement of Tenant and
Landlord regarding the Work.
3
(g) In the event that the final working drawings and specifications are
included as part of the Initial Plan attached hereto, or in the event Landlord
performs the Work without the necessity of preparing working drawings and
specifications, then whenever the term "Working Drawings" is used in this
Agreement, such term shall be deemed to refer to the Initial Plan and all
supplemental plans and specifications approved by Landlord.
11. Exculpation of Landlord. Notwithstanding anything to the contrary
------------------------
contained in this Work Letter, it is expressly understood and agreed by and
between the parties hereto that:
(a) The recourse of Tenant or its successors or assigns against Landlord
with respect to the alleged breach by or on the part of Landlord of any
representation, warranty, covenant, undertaking or agreement contained in this
Work Letter (collectively "Landlord's Work Letter Undertakings") shall extend
only to Landlord's interest in the real estate, of which the Premises demised
under the Lease are a part (hereinafter, "Landlord's Real Estate") and not to
any other assets of Landlord or its officers, directors or shareholders; and
(b) Except to the extent of Landlord's interest in Landlord's Real
Estate, no personal liability or personal responsibility of any sort with
respect to any of Landlord's Work Letter Undertakings or any alleged breach
thereof is assumed by, or shall at any time be asserted or enforceable against,
Landlord, Heitman Capital Management LLC, Kennedy-Wilson Properties Ltd. or
Kennedy-Wilson Pennsylvania Management Inc., or against any of their respective
directors, officers, employees, agents, constituent partners, beneficiaries,
trustees or representatives.
IN WITNESS WHEREOF, this Work Letter Agreement is executed as of the 8th
day of June, 2000.
TENANT: LANDLORD:
- ------- ---------
IGATE CAPITAL, INC., FOSTER PLAZA HOLDING CORP.,
a Delaware corporation a Pennsylvania corporation
By: HEITMAN CAPITAL MANAGEMENT LLC,
an Iowa limited liability
Company, Investment Manager
By: __________________________________ By:______________________________
Its: __________________________________ Its:______________________________
4
EXHIBIT C
RULES AND REGULATIONS
---------------------
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or used for any purpose
other than ingress and egress. The halls, passages, entrances, elevators,
stairways, balconies and roof are not for the use of the general public, and
Landlord shall in all cases retain the right to control or prevent access
thereto by all persons whose presence in the judgment of Landlord shall be
prejudicial to the safety, character, reputation or interests of Landlord and
its tenants, provided that nothing herein contained shall be construed to
prevent such access by persons with whom the tenant normally deals in the
ordinary course of its business unless such persons are engaged in illegal
activities. No tenant and no employees of any tenant shall go upon the roof of
the Building without the written consent of Landlord.
2. No awnings or other projections shall be attached to the outside walls
or surfaces of the Building nor shall the interior or exterior of any windows be
coated without the prior written consent of Landlord. Except as otherwise
specifically approved by Landlord, all electrical ceiling fixtures hung in
offices or spaces along the perimeter of the Building must be fluorescent and of
a quality, type, design and bulb color approved by Landlord. Tenant shall not
place anything or allow anything to be placed near the glass of any window,
door, partition or wall which may appear unsightly from outside the Premises.
3. No sign, picture, plaque, advertisement, notice or other material shall
be exhibited, painted, inscribed or affixed by any tenant on any part of, or so
as to be seen from the outside of, the Premises or the Building without the
prior written consent of Landlord. In the event of the violation of the
foregoing by any tenant, Landlord may remove the same without any liability, and
may charge the expense incurred in such removal to the tenant violating this
rule. Interior signs on doors and the directory tablet shall be inscribed,
painted or affixed for each tenant by Landlord at the expense of such tenant,
and shall be of a size, color and style acceptable to Landlord.
4. The toilets and wash basins and other plumbing fixtures shall not be
used for any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags or other substances shall be thrown therein. All
damage resulting from any misuse of the fixtures shall be borne by tenant who,
or whose servants, employees, agents, visitors or licensees, shall have caused
the same.
5. No tenant or its officers, agents, employees or invitees shall mark,
paint, drill into, or in any way deface any part of the Premises or the
Building. No boring, cutting or stringing of wires or laying of linoleum or
other similar floor coverings shall be permitted except with the prior written
consent of Landlord and as Landlord may direct.
6. No bicycles, vehicles or animals of any kind shall be brought into or
kept in or about the Premises and no cooking shall be done or permitted by any
tenant on the Premises except that microwave cooking in a UL-approved microwave
oven and the preparation of coffee, tea, hot chocolate and similar items for the
tenant and its employees and business visitors shall be permitted. Tenant shall
not cause or permit any unusual or objectionable odors to escape from the
Premises.
7. The Premises shall not be used for manufacturing or for the storage of
merchandise except as such storage may be incidental to the use of the Premises
for general office purposes. No tenant shall engage or pay any employees on the
Premises except those actually working for such tenant on the Premises nor
advertise for laborers giving an address at the Premises. The Premises shall
not be used for lodging or sleeping or for any immoral or illegal purposes.
8. No tenant or its officers, agents, employees or invitees shall make, or
permit to be made any unseemly or disturbing noises, sounds or vibrations or
disturb or interfere with occupants of this or neighboring buildings or Premises
or those having business with them whether by the use of any musical instrument,
radio, phonograph, unusual noise, or in any other way.
9. No tenant or its officers, agents, employees or invitees shall throw
anything out of doors, balconies or down the passageways.
10. Tenant shall not maintain armed security in or about the Premises nor
possess any weapons, explosives, combustibles or other hazardous devices in or
about the Building and/or Premises.
11. No tenant or its officers, agents, employees or invitees shall at any
time use, bring or keep upon the Premises any flammable, combustible, explosive,
foul or noxious fluid, chemical or substance, or do or permit anything to be
done in the leased Premises, or bring or keep anything therein, which shall in
any way increase the rate of fire insurance on the Building, or on the property
kept therein, or obstruct or interfere with the rights of other tenants, or in
any way injure or annoy them, or conflict with the regulations of the Fire
Department or the fire laws, or with any insurance policy upon the Building, or
any part thereof, or with any rules and ordinances established by the Board of
Health or other governmental authority.
12. No additional locks or bolts of any kind, including combination locks,
shall be placed upon any of the doors or windows by any tenant, nor shall any
changes be made in existing locks or the mechanism thereof. Each tenant must,
upon the termination of this tenancy, restore to Landlord all keys of stores,
offices, and toilet rooms, either furnished to, or otherwise procured by, such
tenant, and in the event of the loss of any keys so
1
furnished, such tenant shall pay to Landlord the cost of replacing the same or
of changing the lock or locks opened by such lost key if Landlord shall deem it
necessary to make such change.
13. All removals, or the carrying in or out of any safes, freight,
furniture, or bulky matter of any description must take place during the hours
which Landlord may determine form time to time. The moving of safes or other
fixtures or bulky matter of any kind must be made upon previous notice to the
manager of the Building and under his or her supervision, and the persons
employed by any tenant for such work must be acceptable to Landlord. Landlord
reserves the right to inspect all safes, freight or other bulky articles to be
brought into the Building and to exclude from the Building all safes, freight or
other bulky articles which violate any of these Rules and Regulations or the
Lease of which these Rules and Regulations are a part. Landlord reserves the
right to prohibit or impose conditions upon the installation in the Premises of
heavy objects which might overload the building floors. Landlord will not be
responsible for loss of or damage to any safes, freight, bulky articles or other
property from any cause, and all damage done to the Building by moving or
maintaining any such safe or other property shall be repaired at the expense of
the tenant.
14. No tenant shall purchase or otherwise obtain for use in the Premises
water, ice, towel, vending machine, janitorial, maintenance or other like
services, or accept barbering or bootblacking services, except from persons
authorized by Landlord, and at hours and under regulations fixed by Landlord.
15. Landlord shall have the right to prohibit any advertising by any
tenant which, in Landlord's opinion, tends to impair the reputation of the
Building or its desirability as an office building and upon written notice from
Landlord any tenant shall refrain from or discontinue such advertising. No
tenant shall use any graphic image of the Building or any part of the Building
for advertising or public relations without Landlord's written permission.
16. Landlord reserves the right to exclude from the Building between the
hours of 10:00 p.m. and 7:00 a.m. and at all hours of Saturdays, Sundays and
legal holidays all persons who do not present a valid access card. Landlord
shall furnish access cards to persons for whom any tenant requests the same in
writing. Each tenant shall be responsible for all persons for whom he requests
access cards and shall be liable to Landlord for all acts of such persons.
Landlord shall in no case be liable for damages for any error with regard to the
admission to or exclusion from the Building of any person. In the case of
invasion, mob, riot, public excitement or other commotion, Landlord reserves the
right to prevent access to the Building during the continuance of the same, by
closing of the gates and doors or otherwise, for the safety of the tenants and
others and the protection of the Building and the property therein.
17. Any outside contractor employed by any tenant, shall, while in the
Building, be subject to the prior written approval of Landlord and subject to
the Rules and Regulations of the Building. Tenant shall be responsible for all
acts of such persons and Landlord shall not be responsible for any loss or
damage to property in the Premises, however occurring.
18. All doors opening onto public corridors shall be kept closed, except
when in use for ingress and egress, and left locked when not in use.
19. The requirements of tenants will be attended to only upon application
to the Office of the Building.
20. Canvassing, soliciting and peddling in the Building are prohibited and
each tenant shall cooperate to prevent the same.
21. All office equipment of any electrical or mechanical nature shall be
placed by tenants in the Premises in setting approved by Landlord, to absorb or
prevent any vibration, noise or annoyance.
22. No air conditioning unit or other similar apparatus shall be installed
or used by any tenant without the written consent of Landlord.
23. There shall not be used in any space, or in the public halls of the
Building either by any tenant or others, any hand trucks except those equipped
with rubber tires and side guards.
24. Landlord will direct electricians as to where and how telephone and
telegraph wires are to be introduced. No boring or cutting for wires or
stringing of wires will be allowed without written consent of Landlord. The
location of telephones, call boxes and other office equipment affixed to the
Premises shall be subject to the approval of Landlord. All such work shall be
effected pursuant to permits issued by all applicable governmental authorities
having jurisdiction.
25. Solicitation by vendors with the intent of selling goods shall not be
allowed in the Building.
26. Tenants shall cooperate with Landlord in the conservation of energy
used in or about the Building, including without limitation, cooperating with
Landlord in obtaining maximum effectiveness of the cooling system by closing
drapes or other window coverings when the sun's rays fall directly on windows of
the Premises, and closing windows and doors to prevent heat loss. Tenant shall
not obstruct, alter or in any way impair the efficient operation of Landlord's
heating, lighting, ventilating and air conditioning system. Tenant shall in
general use heat,
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gas, electricity, air conditioning equipment and heating equipment in a manner
compatible with sound energy conservation practices and standards.
27. All parking areas, pedestrian walkways, plazas, and other public areas
forming a part of the Building shall be under the sole and absolute control of
Landlord with the exclusive right to regulate and control these areas. Tenant
agrees to conform to the rules and regulations that may be established by
Landlord for these areas from time to time.
28. Landlord reserves the right to exclude or expel from the Building any
person who, in the judgment of Landlord, is intoxicated or under the influence
of liquor or drugs, or who shall in any manner do any act in violation of any of
the rules and regulations of the Building.
29. Smoking is not permitted in any area of the Building. Tenant and its
employees, agents, subtenants, contractors and invitees shall comply with this
no smoking policy.
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EXHIBIT E
Suite Acceptance Agreement
Building Name/Address:
__________________________________________________________
Tenant Name:
____________________________________________________________________
Tenant Code: __________________________________ Suite Number: _______________
Management's Tenant Contact: _________________________ Phone: _________________
Gentlemen:
As a representative of the above referenced tenant, I/we have physically
inspected the suite noted above and its improvements with
___________________________, a representative of
_________________________________ (name of KWP Corporation). I/we accept the
suite improvements as to compliance with all the requirements indicated in our
lease, also including the following verified information below:
Lease Commencement Date: ________________, Occupancy Date_____________________
Lease Rent Start Date*: __________________, Actual Rent Start*:_______________
Lease Expiration Date: __________________, Actual Expiration Date: __________
Date Keys Delivered: ______________________________
Items requiring attention:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
*If these dates are not the same, attach documentation.
NOTE: This inspection is to be made prior to tenant move-in.
Very truly yours,
_________________________________________
By: _________________________
Its: _________________________
Date: _________________________
Distribution
- ------------
Tenant
Tenant Lease File
Leasing Manager: _____________________________
KWP Document Control: ______________________
Regional Construction Manager: _________________
Regional Engineering Manager: __________________