Exhibit
10.59
Tenant: ClinForce,
Inc.
Premises: Suite 200, 321
Norristown Road, Ambler, PA
LEASE
THIS LEASE ("Lease") is
entered into as of the 7 th day of August, 2006, between
BRANDYWINE OPERATING PARTNERSHIP, L.P., a Delaware limited
partnership ("Landlord"), and CLINFORCE, INC., a Delaware
corporation with its principal place of business at 4815 Emperor
Boulevard, Durham, NC 27713 ("Tenant").
In consideration of the
mutual covenants stated below, and intending to be legally bound,
the parties covenant and agree as follows:
1.
PREMISES
. Landlord
leases to Tenant and Tenant leases from Landlord Suite No. 200,
which the parties stipulate and agree is 4,739 rentable square feet
as shown on the space plan entitled “SP1” prepared by
CMA Architects dated May 17, 2006, attached hereto as Exhibit
“A” (“Premises”), located at 321
Norristown Road, Ambler, PA, 19002 (“Building”), which
is a part of the project located at Springhouse Corporate Center
(“Project”). The Premises shall be delivered to
Tenant on an “As Is” basis except as indicated in
Exhibit “A” .
2.
TERM
. The Term
of this Lease shall commence (the "Commencement Date") on the date
which is the earlier of (i) when Tenant, with Landlord's prior
consent, assumes possession of the Premises for its Permitted Uses,
or (ii) upon substantial completion of the improvements required to
be made by Landlord, if any under Article 1 .
Substantial completion means that the initial improvements
called for by this Lease have been completed to the extent that the
Premises may be occupied by Tenant for its Permitted Use, subject
only to completion of minor finishing, adjustment of equipment, and
other minor construction aspects, and Landlord has procured a
temporary or permanent certificate of occupancy permitting the
occupancy of the Premises, if required by law (hereafter,
“substantial completion”). The estimated
occupancy date shall be October 1, 2006. The Term shall
be for a period of 60 months (“Term”) ending on the
last day of the calendar month. The Commencement Date shall
be confirmed by Landlord and Tenant by the execution of a
Confirmation of Lease Term (“COLT”) in the form
attached hereto as Exhibit "B ". If Tenant fails to
execute or object to the COLT within ten (10) business days of its
delivery, Landlord’s determination of such dates shall be
deemed accepted by Tenant.
3.
FIXED RENT; SECURITY
DEPOSIT .
(a)
Commencing on the
Commencement Date and on the first (1 st ) day of each
month thereafter during the Term, Tenant shall pay to Landlord
without notice or demand, and without set-off, deduction or
counterclaim the monthly installment of annual Fixed Rent as set
forth below by (i) check sent to Landlord, P.O. Box 8538-363,
Philadelphia, PA 19171 or (ii) wire transfer of immediately
available funds to the account at Wachovia Bank, Salem NJ account
no. 2030000359075 ABA #031201467; such transfer to be confirmed by
Landlord’s accounting department upon written request by
Tenant. All payments must include the following
information: Building # 125 and Lease #_____. The
Lease # will be provided to Tenant in the Confirmation of Lease
Term. Fixed Rent and all other sums due from Tenant under
this Lease shall collectively be defined as
“Rent”.
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LEASE YEAR
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PER R.S.F .
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INSTALLMENTS
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FIXED RENT
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Months 1-12
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$18.50
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$7,305.96
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$87,671.50
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Months 13-24
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$19.00
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$7,503.42
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$90,041.00
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Months 25-36
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$19.50
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$7,700.88
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$92,410.50
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Months 37-48
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$20.00
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$7,898.33
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$94,780.00
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Months 49-60
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$20.50
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$8,095.79
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$97,149.50
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(b)
Tenant shall pay the
first full month's installment of Fixed Rent (or such initial
partial month) and the Security Deposit (as defined below) by two
separate checks upon the Tenant’s execution of this Lease.
If any amount due from Tenant is not paid to Landlord when
due, Tenant shall also pay as Additional Rent (as defined in
Article 4 hereof) a late fee of five (5%) percent of the
total payment then due. The late fee shall accrue on the
initial date of a payment’s due date, irrespective of any
grace period granted hereunder. Tenant shall be required to pay a
security deposit of $7,305.96 under this Lease (the "Security
Deposit"), as security for the prompt and complete performance by
Tenant of every provision of this Lease. No interest
shall be paid to Tenant on the Security Deposit. If Tenant
fails to perform any of its obligations hereunder, Landlord may
use, apply or retain the whole or any part of the Security Deposit
for the payment of (i) any rent or other sums of money which Tenant
may not have paid when due, (ii) any sum expended by Landlord in
accordance with the provisions of this Lease, and/or (iii) any sum
which Landlord may expend or be required to expend by reason of
Tenant's default. The use of the Security Deposit by Landlord
shall not prevent Landlord from exercising any other remedy
provided by this Lease or by law and shall not operate as either
liquidated damages or as a limitation on any recovery to which
Landlord may
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otherwise be entitled.
If any portion of the Security Deposit is used, applied or
retained by Landlord, Tenant agrees, within five (5) days after the
written demand therefor is made by Landlord, to deposit cash with
the Landlord in an amount sufficient to restore the Security
Deposit to its original amount. In addition to the foregoing,
if Tenant defaults (irrespective of the fact that Tenant cured such
default) more than once in its performance of a monetary obligation
and such monetary defaults aggregate in excess of
$21,917.88 under this Lease, Landlord may require
Tenant to increase the Security Deposit to the greater of twice the
(i) Fixed Rent then paid monthly, or (ii) the initial amount of the
Security Deposit. If Tenant shall fully comply with all of
the provisions of this Lease, the Security Deposit, or any balance
thereof, shall be returned to Tenant within a reasonable time after
the later of expiration of the Term or Tenant’s surrender of
the Premises as required hereunder. Upon the return of the
Security Deposit to the original Tenant hereunder, or the remaining
balance thereof, Landlord shall be completely relieved of liability
with respect to the Security Deposit. In the event of a transfer of
the Building, Landlord shall have the right to transfer the
Security Deposit and Landlord shall thereupon be released by Tenant
from all liability for the return of such Security Deposit.
Upon the assumption of such Security Deposit by the
transferee, Tenant agrees to look solely to the new landlord for
the re
turn of said
Security Deposit.
4.
ADDITIONAL RENT
. Commencing on the
Commencement Date, and in each calendar year thereafter during the
Term, Tenant shall pay in advance on a monthly basis to Landlord,
Tenant’s Share of the “Recognized Expenses”,
without deduction, counterclaim or setoff, to the extent such
Recognized Expenses exceed the Recognized Expenses in calendar year
2006 (“Base Year”). Tenant’s Share is
7.90%, which is 4,739/59,994 which Share may increase or decrease
as the Building size increases or decreases. Recognized
Expenses are (i) all reasonable operating costs and expenses
related to the maintenance, operation and repair of the Project
incurred by Landlord, including but not limited to management fee
not to exceed five (5%) percent of Rent; common area electric; and
capital expenditures and capital repairs and replacements shall be
included as operating expenses solely to the extent of the
amortized costs of same over the useful life of the improvement in
accordance with generally accepted accounting principles; (ii) all
insurance premiums payable by Landlord for insurance with respect
to the Project and (iii) Taxes payable on the Project. Each
of the Recognized Expenses shall for all purposes be treated and
considered as Additional Rent.
Tenant
shall pay, in monthly installments in advance, on account of
Tenant's Share of Recognized Expenses, the estimated amount of the
increase of such Recognized Expenses for such year in excess of the
Base Year as determined by Landlord in its reasonable discretion.
Prior to the end of the calendar year in which the Lease
commences and thereafter for each successive calendar year (each, a
"Lease Year"), or part thereof, Landlord shall send to Tenant a
statement of projected increases in Recognized Expenses in excess
of the Base Year and shall indicate what Tenant's Share of
Recognized Expenses shall be. The Base Year shall be adjusted
to exclude from the Base Year "extraordinary items" incurred in
such calendar year. For purposes or this subparagraph,
extraordinary items shall mean either (X) cost increases over the
prior calendar year of eleven and one quarter percent (11.25%) or
more, or (Y) items which increase Landlord’s total expenses
and such items have not been included in the determination of
expenses by the Landlord (or the Landlord’s predecessor in
interest) for the prior three years of operating the Building.
As soon as administratively available, Landlord shall send to
Tenant a statement of actual for Recognized Expenses for the prior
Lease Year showing the Share due from Tenant. In the event
the amount prepaid by Tenant exceeds the amount that was actually
due then Landlord shall issue a credit to Tenant in an amount equal
to the over charge, which credit Tenant may apply to future
payments on account of Recognized Expenses until Tenant has been
fully credited with the over charge. If the credit due to
Tenant is more than the aggregate total of future rental payments,
Landlord shall pay to Tenant the difference between the credits in
such aggregate total. In the event Landlord has undercharged
Tenant, then Landlord shall send Tenant an invoice with the
additional amount due, which amount shall be paid in full by Tenant
within thirty (30) days of receipt. Notwithstanding
anything in this Lease to the contrary, Controllable Expenses in
any Lease Year shall not increase by more than four percent (4%)
over the prior Lease Year’s Controllable Expenses.
“Controllable Expenses” shall mean all Operating
Expenses except Taxes, utilities, janitorial and snow and ice
removal.
5.
ELECTRICITY CHARGES
. Landlord
shall not be liable for any interruption to any utility
service for any reason unless caused by the gross negligence or
willful misconduct of Landlord. Tenant shall pay to Landlord,
as Additional Rent, within fifteen (15) business days of receipt of
Landlord's billing statement therefor, all charges incurred by
Landlord for electricity, such charges to be based upon Tenant's
consumption , as measured by Landlord's submeter for the
Premises . Landlord, during the hours of 8:00 A.M. to
6:00 P.M. on weekdays and on Saturdays from 8:00 A.M. to 1:00 P.M.
(“Working Hours”), excluding legal holidays, shall
furnish the Premises with heat and air-conditioning in the
respective seasons, and provide the Premises with electricity for
lighting and usual office equipment.
6.
SIGNS;
USE OF PREMISES AND COMMON AREAS
. Landlord shall
provide the original Tenant hereinabove named with standard
identification signage on all Building directories and at the
entrance to the Premises. No other signs shall be placed,
erected or maintained by Tenant at any place upon the Premises,
Building or Project. Tenant’s use of the Premises shall
be limited to general office use and storage incidental thereto
(“Permitted Use”). The Permitted Use shall
be subject to all applicable laws and governmental rules and
regulations and to all reasonable requirements of the insurers of
the Building Tenant shall not install in or for the Premises, any
equipment which requires more electric current than is standard.
Tenant shall have the right, non-exclusive and in common with
others, to use (i) the exterior paved driveways and walkways of the
Building for vehicular and pedestrian access to the Building, (ii)
the internal common area, including elevators and (iii) the
designated parking areas of the Project for the parking of
automobiles of Tenant and its employees and business visitors;
provided Landlord shall have the right in its sole discretion and
from time to time, to construct, maintain, operate, repair, close,
limit, take out of service, alter, change and modify all or any
part of the common areas of the Project, including without
limitation, reasonably restrict or limit Tenant's utilization of
the parking areas in the event the same
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become overburdened and
in such case to equitably allocate on proportionate basis or assign
parking spaces among Tenant and the other tenants of the
Building.
7.
ENVIRONMENTAL MATTERS
. Tenant shall not
generate, manufacture, refine, transport, treat, store, handle,
dispose, bring or otherwise cause to be brought or permit any of
its agents, employees, contractors or invitees to bring in, on or
about any part of the Premises, Building or Project, any hazardous
substance or hazardous waste in violation of applicable
law.
8.
TENANT'S ALTERATIONS
. Tenant will not
cut or drill into or secure any fixture, apparatus or equipment or
make alterations, improvements or physical additions (collectively,
"Alterations") of any kind to any part of the Premises without
first obtaining the written consent of Landlord, such consent not
to be unreasonably withheld. Notwithstanding anything in this Lease to the
contrary, all furniture, movable trade fixtures and equipment
(including telephone, security and communication equipment system
wiring and cabling) installed by or for Tenant, its assignees or
sublessees shall be removed by Tenant at the termination of this
Lease.
9.
ASSIGNMENT AND SUBLETTING
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a.
Tenant shall not,
without the prior written consent of Landlord, which consent shall
not be unreasonably withheld, assign this Lease or any interest
herein or sublet the Premises or any part thereof. Any of the
foregoing acts without such consent shall be void. If
at any time during the Term Tenant desires to assign this Lease or
sublet all or any part of the Premises, Tenant shall give notice to
Landlord of such desire, including the name, address and contact
party for the proposed assignee or subtenant, the effective date of
the proposed assignment or sublease (including the proposed
occupancy date by the proposed assignee or sublessee), and in the
instance of a proposed sublease, the square footage to be
subleased, a floor plan professionally drawn to scale depicting the
proposed sublease area, and a statement of the duration of
the proposed sublease (which shall in any and all events expire by
its terms prior to the scheduled expiration of this Lease, and
immediately upon the sooner termination hereof).
Landlord may, at its option, exercisable by notice
given to Tenant within forty-five (45) days next following
Landlord’s receipt of Tenant’s notice, elect to
recapture the Premises if Tenant is proposing to sublet or
terminate this Lease in the event of an assignment. Regardless of
Landlord's consent, no subletting or assignment shall release
Tenant of Tenant's obligation or alter the primary liability of
Tenant to pay the Rent and to perform all other obligations to be
performed by Tenant hereunder for the remainder of the then current
Lease Term.
b.
The parties agree that
if shall not be unreasonable for Landlord to withhold its consent
to any assignment or sublease if: (i) the proposed assignee or
sublessee shall have a net worth which is not acceptable to
Landlord in Landlord’s reasonable discretion; (ii) the
proposed assignee or sublessee shall have no reliable credit
history or an unfavorable credit history, or other reasonable
evidence exists that the proposed assignee or sublessee will
experience difficulty in satisfying its financial or other
obligations under this Lease; (iii) the proposed assignee of
sublessee, in Landlord’s reasonable opinion, is not reputable
and of good character; (iv) the portion of the Premises requested
to be subleased renders the balance of the Premises unleasable as a
separate area; (v) Tenant is proposing a sublease at a rental or
subrental rate which is less than the then fair market rental rate
for the portion of the Premises being subleased or assigned, or
Tenant is proposing to assign or sublease to an existing tenant of
the Building or another property owned by Landlord or by its
partners, or to another prospect with whom Landlord or its
partners, or their affiliates are then negotiating; (vi) the
proposed assignee or sublessee will cause Landlord’s existing
parking facilities to be reasonably inadequate, or in violation of
code requirements, or require Landlord to increase the parking area
or the number of parking spaces to meet code requirements, or the
nature of such party’s business shall reasonably require more
than four (4) parking spaces per 1,000 rentable square feet of
floor space, or (vii) the nature of such party’s proposed
business operation would or might reasonably permit or require the
use of the Premises in a manner inconsistent with the
“Permitted Use” specified herein, would or might
reasonably otherwise be in conflict with express provisions of this
Lease, would or might reasonably violate the terms of
any other lease for the Building, or would, in
Landlord’s reasonable judgement, otherwise be incompatible
with other tenancies in the Building.
10.
LANDLORD'S RIGHT OF ENTRY
. Landlord and
persons authorized by Landlord may enter the Premises at all
reasonable times upon reasonable advance notice (or any time
without notice in the case of an emergency). Landlord shall
not be liable for inconvenience to or disturbance of Tenant by
reason of any such entry; provided, however, that in the case of
repairs or work, such shall be done, so far as practicable, so as
to not unreasonably interfere with
Tenant's use of the Premises.
11.
REPAIRS AND MAINTENANCE
. Except as specifically
otherwise provided in subparagraphs (b) and (c) of this Article,
Tenant, at its sole cost and expense, shall keep and maintain the
Premises in good order and condition, free of rubbish, and shall
promptly make all non-structural repairs necessary to keep and
maintain such good order and condition. Tenant shall have the
option of replacing lights, ballasts, tubes, ceiling tiles, outlets
and similar equipment itself or it shall have the ability to advise
Landlord of Tenant's desire to have Landlord make such repairs.
If requested by Tenant, Landlord shall make such repairs to
the Premises within a reasonable time of notice to Landlord and
shall charge Tenant for such services at Landlord's standard rate
(such rate to be competitive with the market rate for such
services). When used in this Article 11 , the term
"repairs" shall include replacements and renewals when necessary.
All repairs made by Tenant shall utilize materials and
equipment which are at least
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equal in quality and
usefulness to those originally used in constructing the Building
and the Premises. Landlord shall provide the
janitorial services for the Premises set forth on Exhibit
“C”. Tenant shall not use or permit the use
of any portion of the Premises for outdoor storage.
Landlord shall maintain all HVAC systems serving the
Building and the Premises. Tenant's allocated share of
Landlord's cost for HVAC service, maintenance and repairs shall be
included as a portion of Recognized Expenses.
(b)
Landlord, throughout the
Term of this Lease and at Landlord's sole cost and expenses, shall
make all necessary repairs to the footings and foundations and the
structural steel columns and girders forming a part of the Premises
and the HVAC, plumbing and electric systems serving the Premises.
Tenant shall pay Tenant’s Allocated Share of the cost
of all work to be performed by Landlord pursuant to this Article 11
as Additional Rent as provided in Article 4 hereof.
(c)
Landlord, throughout the
Term of this Lease, shall make all necessary repairs to the
Building outside of the Premises and the common areas, including
the roof, walls, exterior portions of the Premises and the
Building, utility lines, equipment and other utility facilities in
the Building, which serve more than one tenant of the Building, and
to any driveways, sidewalks, curbs, loading, parking and landscaped
areas, and other exterior improvements for the Building; provided,
however, that Landlord shall have no responsibility to make any
repairs unless and until Landlord receives written notice of the
need for such repair. Tenant shall pay its Allocated Share of the
cost of all repairs to be performed by Landlord pursuant to this
Article 11(c) as Additional Rent as provided, in Article 4
hereof.
(d)
Landlord shall keep and
maintain all common areas appurtenant to the Building and any
sidewalks, parking areas, curbs and access ways adjoining the
Property in a clean and orderly condition, free of accumulation of
dirt, rubbish, snow and ice, and shall keep and maintain all
landscaped areas in a neat and orderly condition. Tenant
shall pay its Allocated Share of the cost of all work to be
performed by Landlord pursuant to this Paragraph (d) as Additional
Rent as provided in Article 4 hereof.
(e)
Notwithstanding anything
herein to the contrary, repairs to the Premises, Building or
Project and its appurtenant common areas made necessary by a
negligent or willful act or omission of Tenant or any employee,
agent, contractor, or invitee of Tenant shall be made at the sole
cost and expense of Tenant.
12.
INSURANCE; SUBROGATION RIGHTS
. Tenant shall
obtain and keep in force at all times during the term hereof, at
its own expense, commercial general liability insurance including
contractual liability and personal injury liability and all similar
coverage, with combined single limits of $3,000,000.00 on account
of bodily injury to or death of one or more persons as the result
of any one accident or disaster and on account of damage to
property, or in such other amounts as Landlord may from time to
time require. Tenant shall also require its movers to procure
and deliver to Landlord a certificate of insurance naming Landlord
as an additional insured. Tenant shall, at its sole cost and
expense, maintain in full force and effect on all Tenant's trade
fixtures, equipment and personal property on the Premises, a policy
of "special form" property insurance covering the full replacement
value of such property. All liability insurance
required hereunder shall not be subject to cancellation
without at least thirty (30) days prior notice to all insureds, and
shall name Tenant as insured and Landlord and Brandywine Realty
Trust as additional insureds, and, if requested by Landlord, shall
also name as an additional insured any mortgagee or holder of any
mortgage which may be or become a lien upon any part of the
Premises. Prior to the commencement of the Term, Tenant shall
provide Landlord with certificates which evidence that the
coverages required have been obtained for the policy periods.
Tenant shall also furnish to Landlord throughout the Term
replacement certificates at least thirty (30) days prior to the
expiration dates of the then current policy or policies. All
the insurance required under this Lease shall be issued by
insurance companies authorized to do business in the Commonwealth
of Pennsylvania with a financial rating of at least an A-X as rated
in the most recent edition of Best's Insurance Reports and in
business for the past five years. The limit of any such
insurance shall not limit the liability of Tenant hereunder.
If Tenant fails to maintain such insurance, Landlord may, but
is not required to, procure and maintain the same, at Tenant's
expense to be reimbursed by Tenant as Additional Rent within ten
(10) days of written demand. Any deductible under such
insurance policy in excess of Twenty Five Thousand ($25,000) must
be approved by Landlord in writing prior to issuance of such
policy. Tenant shall not self-insure without Landlord’s
prior written consent. Each party hereto, and anyone claiming
through or under them by way of subrogation, waives and releases
any cause of action it might have against the other party and
Brandywine Realty Trust and their respective employees, officers,
members, partners, trustees and agents, on account of any loss or
damage that is insured against under any insurance policy required
to be obtained hereunder. Each party agrees that it will use
its best efforts to cause its insurance carrier to endorse all
applicable policies waiving the carrier's right of recovery under
subrogation or otherwise against the other party.
13.
INDEMNIFICATION
. Tenant shall
defend, indemnify and hold harmless Landlord, Brandywine Realty
Trust and their respective employees and agents from and against
any and all third-party claims, actions, damages, liability and
expense (including all reasonable attorney’s fees, expenses
and liabilities incurred in defense of any such claim or any action
or proceeding brought thereon) arising from any activity, work or
things done, permitted or suffered by Tenant or its agents,
licensees or invitees in or about the Premises, the Building or the
Project contrary to the requirements of this Lease, and any
negligence or willful act of Tenant or any of Tenant's agents,
contractors, employees or invitees. Without limiting the
generality of the foregoing, Tenant’s obligations shall
include any case in which Landlord or Brandywine Realty Trust shall
be made a party to any litigation
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commenced by or against
Tenant, its agents, subtenants, licensees, concessionaires,
contractors, customers or employees, in which case Tenant shall
defend, indemnify and hold harmless Landlord and Brandywine Realty
Trust and shall pay all costs, expenses and reasonable attorney's
fees incurred or paid by Landlord and Brandywine Realty Trust in
connection with such litigation, after notice to Tenant and
Tenant's refusal to defend such litigation, and upon notice from
Landlord shall defend the same at Tenant's expense by counsel
satisfactory to Landlord.
14.
FIRE DAMAGE
. If (i) the
casualty damage is of a nature or extent that, in Landlord's
reasonable judgment, the repair and restoration work would require
more than two hundred ten (210) consecutive days to
complete after the casualty (assuming normal work crews not engaged
in overtime), or (ii) more than thirty (30%) percent of the total
area of the Building is extensively damaged, or (iii) the casualty
occurs in the last Lease Year of the Term and Tenant has not
exercised a renewal right or (iv) insurance proceeds are
unavailable or insufficient, either party shall have the right to
terminate this Lease and all the unaccrued obligations of the
parties hereto, by sending written notice of such termination to
the other within thirty (30) days of the date of casualty.
Such notice is to specify a termination date no less than
fifteen (15) days after its transmission. In the event of
damage or destruction to the Premises or any part thereof as set
forth in subsections (i), (ii) or (iii) above and neither party has
terminated this Lease, Tenant's obligation to pay Fixed Rent and
Additional Rent shall b e equitably adjusted or abated for such time
as the Premises is not capable of being used by Tenant for its
Permitted Use.
15.
SUBORDINATION; RIGHTS OF MORTGAGEE
. This Lease shall
be subordinate at all times to the lien of any mortgages now or
hereafter placed upon the Premises, Building and/or Project and
land of which they are a part without the necessity of any further
instrument or act on the part of Tenant to effectuate such
subordination. Tenant further agrees to execute and deliver
within ten (10) day of demand such further instrument evidencing
such subordination and attornment as shall be reasonably required
by any mortgagee. If Landlord shall be or is alleged to be in
default of any of its obligations owing to Tenant under this Lease,
Tenant shall give to the holder of any mortgage (the "Mortgagee")
now or hereafter placed upon the Premises, Building and/or Project,
notice by overnight mail of any such default which Tenant shall
have served upon Landlord. Tenant shall not be entitled to
exercise any right or remedy as there may be because of any default
by Landlord without having given such notice to the Mortgagee.
If Landlord shall fail to cure such default, the Mortgagee
shall have forty-five (45) additional days wit hin which to cure
such default.
16.
CONDEMNATION . If in Landlord’s
reasonable judgement a taking renders the Building unsuitable at
Landlord’s option, this Lease shall, at either party's
option, terminate as of the date title to the condemned real estate
vests in the condemnor, and the Rent herein reserved shall be
apportioned and paid in full by Tenant to Landlord to that date and
all rent prepaid for period beyond that date shall forthwith be
repaid by Landlord to Tenant and neither party shall
thereaft