AMENDED AND RESTATED OFFICE LEASE

Exhibit 10.10

AMENDED AND RESTATED

OFFICE LEASE

BETWEEN

BELLEVUE ASSOCIATES, LANDLORD

AND

PENNSYLVANIA REAL ESTATE INVESTMENT TRUST, TENANT

PREMISES:

PORTION OF BUILDING

SITUATED AT:

200 SOUTH BROAD STREET

PHILADELPHIA, PA 19102

AMENDED AND RESTATED OFFICE LEASE

THIS AMENDED AND RESTATED OFFICE LEASE (the “LEASE”) is made effective as of July 12, 1999, by and between BELLEVUE ASSOCIATES (“LANDLORD”), and PENNSYLVANIA REAL ESTATE INVESTMENT TRUST (“TENANT”), Landlord and Tenant having the following notice addresses on the date of this Lease.

RECITALS

A. Landlord and Richard I. Rubin & Co., Inc. (“RIR”) entered into that certain Office Lease dated December 9, 1988 (the “LEASE 1”) pursuant to which RIR leased from Landlord approximately 19,487 rentable square feet of space located on the third floor of the Building (defined herein).

B. Landlord and RIR subsequently entered into that certain Office Lease dated June 30, 1989 (the “LEASE 2”) pursuant to which RIR leased from Landlord approximately 3,588 additional rentable square feet of space located on the third floor of the Building.

C. Landlord and RIR entered into that certain Office Building Amendment to Lease dated November 1, 1990 (the “1990 AMENDMENT”) pursuant to which RIR leased from Landlord approximately 4,989 additional rentable square feet of space located on the third floor of the Building. The space covered by Lease 1, Old Lease 2 and the 1990 Amendment constituted all of the rentable square feet of space located on the third floor of the Building.

D. RIR, as sublandlord, and Strouse, Greenberg & Co., Inc. (which by name change became known as The Rubin Organization) (hereinafter, “TRO”), as subtenant, entered into that certain Sublease Agreement dated December 31, 1992 (the “SUBLEASE”) pursuant to which TRO subleased from RIR all of the space covered by Lease 1 (as amended by the 1990 Amendment and Lease 2).

E. Landlord and TRO entered into that certain Office Lease dated September 1, 1993 (the “LEASE 3”) pursuant to which TRO leased from Landlord approximately 6,647 rentable square feet of space located on the fourth floor of the Building.

F. Tenant is the successor in interest to TRO.

G. Subject to the conditions set forth herein, Landlord and Tenant desire to amend and restate Lease 1, Lease 2 and Lease 3 (as each has been amended from time to time) (i) to relocate a portion of and to expand the Premises by moving tenant from the portion of the Premises it occupies on the fourth floor of the Building to space located on the second floor of the Building, (ii) to provide for certain improvements of the space located on the second floor of the Building, and (iii) to adjust and amend the Term, Minimum Rent and other terms of said leases.

 

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AGREEMENT

 

1. FUNDAMENTAL LEASE PROVISIONS. Lease 1, Lease 2 and Lease 3, each as amended from time to time, are hereby restated in their entirety by this Lease. Certain Fundamental Lease Provisions are presented in this Section 1 and represent the agreement of the parties hereto, subject to the further definition and elaboration in the respective referenced Sections and elsewhere in the Lease:

 

 

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References appearing in this Section 1 are to designate some of the other places in this Lease where additional provisions applicable to the particular Fundamental Lease Provisions appear. Each reference in this Lease to any of the Fundamental Lease Provisions shall be construed to incorporate all of the terms provided for under such provisions, and such provisions shall be read in conjunction with all other provisions of this Lease applicable thereto. If there is any conflict between any of the Fundamental Lease Provisions set forth in this Section and any other provisions of this Lease, the latter shall control. The listing in this Section 1 of monetary charges payable by Tenant shall not be construed to be an exhaustive list of all monetary amounts payable by Tenant under this Lease.

2. PREMISES; USE.

A. PREMISES. Landlord, for and in consideration of the rent (hereinafter defined in subsection 4.D.) to be paid and the covenants and agreements to be performed by Tenant does hereby demise and lease unto Tenant, and Tenant hereby leases and takes from Landlord for the

 

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Term, at the rent and upon the terms and conditions hereinafter set forth that space (the “PREMISES”) situated on the floor(s) of the Building and consisting of the square footage identified and otherwise set forth in subsections 1.A., 1.B. and 1.C. (which Premises is outlined on the diagram marked EXHIBIT “A” annexed hereto and made a part hereof), together with the right, in common with other occupants of the Building, to use the lobbies, hallways and other Common Area facilities.

B. [INTENTIONALLY DELETED.]

C. USE. The Premises shall be used for the purpose specified in subsection 1.D. and no other purpose without the prior written consent of Landlord. For the purpose of this Lease, the terms “square footage” or “square feet” shall mean the square footage of the Premises as measured from the exterior face of exterior walls and the exterior face of corridor walls, and the center line of any walls Tenant shares with other tenants or occupants of the Building, plus the product of the square footage of the Premises multiplied by Tenant’s proportionate share of the “COMMON AREAS” (as defined in subsection 30.B.) of the Building. Landlord and Tenant agree that the square footage of the Premises set forth in subsection 1.C. is approximately accurate and shall be used for the purpose of making all computations under this Lease except as otherwise stated.

3. TERM.

A. DURATION. The term of this Lease and Tenant’s obligation to pay rent hereunder shall commence upon the date set forth in Section 1.F (“COMMENCEMENT DATE”). Said term shall continue from the Commencement Date for the period specified in subsection 1.E.(2) plus, the partial month, if any, if the term begins other then on the first day of any month, so that the term shall expire on the last day of the month in which the above period ends, unless sooner terminated as hereinafter provided or extended by the parties (the “TERM”).

B. MEMORANDUM. When the Commencement Date has been established, Landlord and Tenant shall execute and deliver an instrument in form satisfactory to Landlord specifying the Commencement Date.

4. RENT.

A. MINIMUM RENT. The Tenant shall pay to Landlord as annual minimum rent (“MINIMUM RENT”) the sum set forth in subsection 1.F. payable in advance on the first business day of each calendar month in equal monthly installments in the sum specified in subsection 1.F. beginning on the July 12, 1999 (the “RENT COMMENCEMENT DATE”).

B. [INTENTIONALLY DELETED.]

C. PARTIAL MONTH. If the Term commences on a day other than the first day of a calendar month, Tenant shall pay to Landlord on or before the Rent Commencement Date a pro rata portion of the Minimum Rent to be based on the number of days remaining in such partial month after the Commencement Date.

 

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D. PAYMENTS. All payments of Minimum Rent, additional rent and any other sums due to Landlord hereunder shall be due without demand, notice, set-off, deduction or counterclaim at the office set forth in subsection 1.G. or at such other place as Landlord may from time to time direct. All checks shall be made payable to the person specified in subsection 1.H. or such other person as Landlord may direct. All sums due to Landlord under this Lease whether or not stated to be Minimum Rent or additional rent are herein collectively called “RENT.”

E. ACCEPTANCE OF PAYMENTS. If Landlord, at any time or times, shall accept rent after the same shall become due and payable, such acceptance shall not excuse any such delay upon subsequent occasions, or constitute, or be construed as, a waiver of any of Landlord’s rights or remedies hereunder.

F. ADDITIONAL RENT. Whenever under the terms of this Lease any sum is required to be paid by Tenant in addition to the Minimum Rent herein reserved, such additional sum so to be paid shall be deemed additional rent and if not designated as “additional rent”, then such sum shall nevertheless, at the option of the Landlord if not paid when due, be deemed “additional rent” which shall be collectible with any installment of Minimum Rent thereafter falling due hereunder. Nothing hereunder contained shall be deemed to suspend or delay the payment of any sum at the time the same became due and payable hereunder or limit any other right or remedy of Landlord. Minimum Rent and additional rent are something collectively referred to herein as “rent.”

G. LATE CHARGE. In the event that any sum due to Landlord under the provisions of this Lease shall not be paid within ten (10) days after due, Tenant shall, upon demand, pay as additional rent a late charge to Landlord of $.05 for each dollar so overdue to defray Landlord’s administrative expenses in collecting and processing that sum.

H. SECURITY DEPOSIT. Upon the execution of this Lease, Landlord acknowledges receipt from Tenant of the sum set forth in subsection 1.I. to be held as collateral security for the payment of any rent payable by Tenant under this Lease, and for the faithful performance of all other covenants and agreements of Tenant hereunder. The amount of such deposit, without interest, shall be repaid to Tenant after the termination of this Lease and any extension thereof, provided Tenant shall have made all payments of all sums due Landlord and performed all covenants and agreements hereunder. Upon any Event of Default by Tenant hereunder, all or part of such deposit may, at Landlord’s option, be applied on account of the resulting deficiency and Tenant shall immediately restore such deposit to its original sum. The deposit shall be deemed to be the property of Landlord.

I. USE AND OCCUPANCY TAX. Tenant shall pay to Landlord any use and occupancy tax (or its equivalent) imposed on the Premises. Landlord shall have the same rights and remedies for the non-payment of such use and occupancy tax that it has upon Tenant’s failure to pay rent hereunder. Landlord agrees to pay the sums collected by it to the appropriate governmental authorities in a timely manner, and will be solely responsible to pay any penalties or interest occasioned by Landlord’s delay in remitting such sums.

 

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5. DEFINITIONS: OPERATION AND MAINTENANCE CHARGE; TAXES.

In this Lease, the following terms shall have the meanings hereinafter provided:

A. Operations and Maintenance Charge Sum (“OMC SUM”) shall mean all sums incurred (even if not yet payable) in connection with the operation and maintenance of the Building as deemed by Landlord to be reasonable, appropriate and in the best interests of the Building including, without limitation, sums incurred for the following items: storm drainage, water (domestic and fire protection) and sewer, electric, steam, gas, telephone and other utility services and systems; heating, ventilating, air conditioning, plumbing, electrical, fire detection and suppression, life safety, security protection, illumination, vertical transportation, and other Building services and systems; salaries, wages, benefits and other compensation to or for personnel engaged in the cleaning, care, management or other operation and maintenance of the Building and payments and other charges for taxes, contributions, assessments, worker’s compensation, unemployment compensation, health, accident and life insurances and other impositions or charges related thereto; outfitting and otherwise providing building service personnel; service, repair, replacement and other maintenance to or of the Building floors, doors, walls ceilings, roofs, windows, skylights and other elements, systems and amenities; charges for utilities or utility services; rentals for provision of Building services; snow, ice, trash and garbage removal and pest control; identification and directional signs and other traffic control items; parking, loading and unloading areas and other Common Areas, facilities or equipment; fire and other casualty, liability, plate glass, theft, worker’s compensation, pressure vessel and rent insurances; depreciation of machinery and other equipment for Building services and interior and exterior Common Area finishes and amenities; janitorial services, cleaning the property including maintenance of windows and other glass surfaces, Building facade, sidewalks, parking, loading and unloading areas; sales, use excise taxes and fees; management fees and charges; costs required by the application or enforcement of federal, state and local statutes, codes, regulations and rulings; modifications of the HVAC and other Building systems by which Landlord provides Building services; the fair rental value of any office space in the Building used as an office for the on-site property manager; legal fees and other fees of consultants, engineers and other design professionals, appraisers, accountants and auditors; gazebos, fountains, sculptures, art features, fencing, screening and similar items located within or outside the Building, interior and exterior planting, replanting and replacing flowers, shrubbery, plants trees and other landscaping, awnings and other Building amenities; fees, licenses, permits and charges by governmental and quasi-governmental bodies or agencies; supplies, tools, reserve, parts, postage, deliveries, business machines and office equipment; all other sums necessarily and reasonably incurred by Landlord in the proper operation and maintenance of a first-class Building EXCLUDING, HOWEVER, depreciation (other than as above specified), the cost of any utilities which are directly metered or submetered to tenants of the Building, the cost of any repair or replacement required of Landlord pursuant to the reconstruction obligations of subsection 13.A., the expenses incurred in leasing or procuring new tenants, legal expenses in enforcing the terms of any lease, interest or amortization payments on any mortgage or mortgages, capital improvements specifically for a tenant within such tenant’s space (other than as specified below). Additionally, if Landlord shall purchase any item of capital equipment or make any capital expenditure as described above, then the costs for same shall be amortized on a straight line basis beginning in the year of installation and continuing for the useful life thereof, but not more than ten (10) years, or such shorter time as may be hereinafter provided, with a per annum interest factor equal to Two Hundred (200) basis points above the “Prime Rate”

 

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announced by PNC Bank, Philadelphia, Pennsylvania, for the date any such item is placed in service. The amount of amortization for such costs shall be included in OMC Sum for each year to which the amortization relates. Tenant agrees that the determination by Landlord’s accountant of the useful life of the subject of such capital expenditures shall be binding on Tenant. If Landlord shall lease such item of capital equipment, then the rental or other operating costs paid pursuant to such lease shall be included in the OMC Sum for each year in which they are incurred. Notwithstanding the foregoing, as an alternative cost recovery method, if Landlord shall effectuate savings in labor or energy-related costs as a result of the installation of new devices or equipment, then Landlord may elect to include up to the full amount of any such savings in each year (beginning with the year in which the equipment is placed in service) as an operating expense until Landlord has recovered thereby the cost of installation of said devices or equipment and interest thereon as above provided, even if the result of such application will result in the amortization of such costs over a period shorter than the useful life of such installation. Landlord shall notify Tenant in writing if Landlord elects to apply such savings to the cost of such equipment and shall include a statement of the amount of such savings in the OMC statement for each applicable year.

B. “TAXES” or “TAX” shall mean all taxes, assessments and governmental charges, whether federal, state, county or municipal, including any special services district fees or levies, and whether general or special, ordinary or extraordinary, foreseen or unforeseen, imposed upon the Building (to the extent allocable to the office portion of the Building), all computed in accordance with the terms and conditions of this Lease, including the reasonable cost and expenses (including attorney and appraisal fees) of contesting Taxes. It is agreed between Landlord and Tenant that Taxes shall not include any taxes, including income taxes (other than business privilege taxes and gross receipts taxes), imposed on the gross or net income of Landlord from the operation of the Building. It is further agreed between Landlord and Tenant that Taxes shall be allocable to the office portion of the Building by means of a written appraisal of the Building to be prepared at Landlord’s request. Additionally, in the event that the Building or the uses thereof are substantially altered or modified at any time during the Term or extension thereof so that the original allocation of total Taxes assessed against the Building among the retail portion, office portion, and hotel portion of the Building becomes inequitable, Landlord shall equitably determine a reallocation of Taxes in light of such alteration or modification. If at any time during the Term the present system of taxation of property shall be changed or supplemented so that in lieu of or in addition to the tax on property there shall be assessed on Landlord or the Building any tax of any nature which is imposed in whole or in part, in substitution for or in lieu of any tax which would otherwise constitute a Tax, such shall be deemed to be included within the term Taxes, but only to the extent that the same would be payable if the Building was the only property of Landlord.

C. “TENANT’S OMC PERCENTAGE” is that percentage specified in subsection 1.K.

D. “TENANT’S OMC” means the OMC Sum for a calendar year included within the Term and any extension thereof, less the OMC Sum for the Base Year specified in subsection 1.J., multiplied by Tenant’s OMC Percentage.

E. “TENANT’S TAX PERCENTAGE” is that percentage specified in subsection M.

 

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F. “TENANT’S TAX CHARGE” means the Taxes for a calendar year included within the Term or any extensions thereof, less the Base Year Taxes specified in subsection 1.L., multiplied by Tenant’s Tax Percentage.

G. “TAX YEAR” shall mean each calendar year, or such other period of twelve (12) months, which may be duly adopted as the fiscal year for payment of Taxes by the governmental unit in which the Building is located.

6. TENANT’S OMC AND TENANT’S TAX CHARGE.

A. ANNUAL ADJUSTMENT. During each calendar year or portion thereof included in the Term and any extension thereof, Tenant shall pay Landlord as additional rent Tenant’s OMC and Tenant’s Tax Charge.

B. PROCEDURES.

(1) During December of each calendar year, or as soon thereafter as practicable, Landlord shall give Tenant written notice of its estimate of the amounts of Tenant’s OMC payable for the ensuing calendar year. On or before the first day of each month during each calendar year, Tenant shall pay to Landlord one-twelfth (1/12) of the amounts estimated as aforesaid, provided that if such notice is not given in December, Tenant shall continue to pay on the basis of one hundred three percent (103%) of the then applicable sums of Tenant’s OMC until the month after such notice is given. If at any time or times it appears to Landlord that the sums payable under subsection 6.A. above for the current calendar year will vary from its estimate by more than five percent (5%), Landlord shall, by notice to Tenant, revise its estimate for such year, and subsequent payments by Tenant for such year shall be based upon such revised estimate.

(2) If Taxes for any Tax Year occurring during the term of this Lease shall be greater than the Base Year Taxes, Tenant shall pay to Landlord as additional rent, an amount equal to Tenant’s Tax Charge with respect to said Tax Year. If less than a full twelve (12) month period of a Tax Year is included within the term of this Lease, Tenant’s Tax Charge shall be prorated on a per diem basis for such partial Tax Year. Tenant’s Tax Charge for each Tax Year shall be paid as follows:

(a) After receipt of a bill for Taxes, Landlord shall furnish Tenant a statement detailing the amount of the bill and the Base Year Taxes. Within thirty (30) days following the receipt of such statement, Tenant shall pay to Landlord the amount, if any, by which the Tenant’s Tax Charge for such Tax Year exceeds the total amount, if any, of payments made pursuant to subsections (b) and (c) below on account of the Tenant’s Tax Charge. Tenant’s obligations hereunder shall survive the expiration of the Term or termination of the Lease.

(b) Notwithstanding the foregoing subsection (a), if at any time after execution of this Lease, Landlord receives a bill for Taxes in excess of the Base Year Taxes, Landlord may notify Tenant that Landlord elects to receive payment in installments in advance as an estimate on account of Tenant’s Tax Charge or to increase installments presently being paid by Tenant if Tenant is required to make monthly payments pursuant to subsection (c) below. Landlord’s notice shall be in writing and shall specify the amount due, or estimated to become

 

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due, and the amount of each installment or increased installment to be paid by Tenant. Payments in the amount of the installment (or increase in installment) set forth in Landlord’s notice shall be due monthly as additional rent concurrently with payments of minimum rent beginning with such first payment due after the date of Landlord’s notice, and shall continue on the first day of each month until and including the month in which Tenant makes payment in full of Tenant’s Tax Charge.

(c) After payment of the full amount of Tenant’s Tax Charge (less any payments made pursuant to subsection (b) above or this subsection (c) on account of the Tax Charge) for any Tax Year, Tenant shall continue to pay one-twelfth (1/12) of the Tax Charge monthly, together with payments of minimum rent as an estimate and on account of the Tax Charge for the following Tax Year, which payments shall continue until receipt by Tenant of a statement which revises the amount of Tax Charge or receipt of a notice from Landlord pursuant to subsection (b) above increasing the amount of monthly estimated payments.

(3) Within ninety (90) days after the close of each calendar year or as soon after such ninety (90) day period as practicable, Landlord shall deliver to Tenant a statement of the adjustments to be made pursuant to subsection 6.A. If on the basis of such statement Tenant owes sums less than the payments for such calendar year previously made by Tenant on account of Tenant’s Tax Charge or Tenant’s OMC, Landlord shall credit such excess to Tenant against the next ensuing installments of Rent. If on the basis of such statement Tenant owes sums more than the estimated payments for such calendar year previously made by Tenant, on account of Tenant’s Tax Charge or Tenant’s OMC, Tenant shall pay the deficiency to Landlord within thirty (30) days after delivery of the statement. Tenant’s obligations hereunder shall survive the expiration of the Term or the termination of the Lease.

(4) In determining Tenant’s OMC payable pursuant to subsection 6.A for any calendar year during the Term:

(a) if less than ninety-five percent (95%) of the Building rentable area shall have been occupied by tenants and fully used by them, at any time during the year, the OMC Sum shall be deemed to be an amount equal to the OMC Sum which would normally be expected to be incurred had such occupancy been ninety-five percent (95%) and had such full utilization been made during the entire period; and,

(b) if Landlord is not furnishing any particular work or service (and such work or service is by agreement to be furnished by a tenant and the cost of which if furnished by Landlord would constitute an item within the OMC Sum) then the OMC Sum shall be deemed to be increased by the sum for the items which would reasonably have been incurred during such period by Landlord if Landlord had at its own expense furnished such work or service to such tenant.

(5) Notwithstanding anything contained in this Lease to the contrary, in calculating the OMC Sum and/or Taxes, Landlord, in its sole discretion, may make allocations of certain items between the office building portion of the Building of which the Premises is a part and, if applicable, the retail portion, and hotel portion, which calculations need not be based on relative size or use.

 

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7. IMPROVEMENT OF THE PREMISES.

A. Landlord’s Construction Obligations. Landlord hereby agrees to perform certain construction work in order to prepare the Premises for the initial occupancy by Tenant (“Landlord’s Work”). The nature and extent of such Landlord’s Work shall be set forth on construction drawings and specifications prepared at the direction of Tenant and in accordance with Exhibit “C” hereof (collectively, the “Final Plans”) to be approved by Landlord and attached to the Lease as Exhibit “C”, subsequent to the date hereof. It is acknowledged that the Final Plans will be based upon the preliminary “nickel” plan attached to this Lease as Exhibit “D” (“Nickel Plan”).

B. Costs of Plans/Landlord’s Work. Landlord agrees to pay the costs of completing the Landlord’s Work in accordance with the Final Plans and the cost of the preparation, modification and revision of all plans and specifications for the Premises including the Nickel Plan, Final Plans, electrical, mechanical, lighting and space design plans.

C. Access by Tenant. Landlord shall afford Tenant and its employee’s, agents and contractors access to the Premises prior to the Commencement Date, at reasonable times and at Tenant’s sole risk and expense, for purposes of inspecting and verifying the performance of Landlord’s Work. Tenant shall inspect the performance of Landlord’s Work regularly and diligently and shall advise Landlord promptly of any objection in the performance of such Work.

D. Alterations. Tenant shall not make any alterations, additions, decorations or other improvements to the Premises or install any fixtures or equipment thereto (collectively “Alterations”), without the Landlord’s prior written approval, which approval shall not be unreasonably withheld, delayed or conditioned. All Alterations to the Premises shall be performed at Tenant’s sole cost and expense by Landlord or, at Landlord’s option, by Tenant in accordance with drawings and specifications prepared at Tenant’s sole cost and expense, which drawings and specifications shall be consistent with the standards applicable thereto set forth in Exhibit “D” attached hereto. So long as Tenant is not in default hereunder, Tenant shall have the right with the consent of Landlord, not to be unreasonably withheld, but not the obligation, to remove any of said Alterations which constitute trade fixtures during and at the expiration of the Term and any extension thereof, provided that Tenant repairs any damage caused by said removal. All of the Alterations remaining on the Premises after the date on which the Term ends, or at such sooner termination date, shall become the property of Landlord. In doing any work of installation, removal, alteration or relocation, Tenant shall not harm the Premises or the Building and shall repair all damage or injury that may occur to the Premises or the Building in connection with such work and shall otherwise comply with Exhibit “D” attached hereto. Tenant agrees in doing any such work in or about the Premises to engage only such labor as will not conflict with or cause strikes or other labor disturbances among the Building service employees. Any contractors employed by Tenant for such work shall comply with the requirements of Exhibit “D” annexed hereto and hereby made a part hereof and shall further be approved by Landlord in writing before the commencement of such work, but Landlord shall not unreasonably withhold its approval or consent. In all events all such contractors shall be required to employ only union labor in the performance of such work, carry worker’s compensation insurance, public liability insurance and property damage insurance in amounts, form and content and with companies satisfactory to Landlord. Prior to the commencement by Tenant of

 

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any work as set forth in this subsection 7.D., Tenant must obtain, at its sole cost and expense, all necessary permits, authorizations, licenses and other approvals required by the various governmental authorities. Upon completion of any such work, Tenant shall pay to Landlord an amount equal to five percent (5%) of the cost of such work, to reimburse Landlord for the cost of coordination and final inspection of the work.

E. Liens. Prior to Tenant performing any construction or other work to, on or about the Premises for which a lien or claim could be filed against Landlord, the Premises, the Building or Landlord’s interest therein, Tenant shall have its contractor execute a Waiver of Liens satisfactory to Landlord and provide Landlord with the original of the same. Landlord shall file such Waiver of Liens and Tenant shall reimburse Landlord for the cost of doing so. Tenant shall not start any work in the Premises until Landlord has advised Tenant that such Waiver of Liens has been filed. Notwithstanding the foregoing, if any mechanics’ or other lien or claim shall be filed against Landlord, the Premises, the Building or Landlord’s interest therein purporting to be for labor or material furnished or to be furnished at the request of Tenant, then Tenant shall, at its sole cost and expense cause same to be discharged by payment, bond or otherwise within thirty (30) days after the filing thereof. If Tenant shall fail to cause same to be discharged of record within such thirty (30) day period, Landlord may cause same to be discharged by payment, bond or otherwise, without investigation as to the validity thereof or as to any counterclaims, offsets or defenses thereto. Tenant shall defend, indemnify and hold Landlord harmless against any and all claims, costs, damages, liabilities and expenses (including reasonable attorneys’ fees) which may be brought or imposed against or incurred by Landlord by reason of any such lien or claim or the discharge thereof. Landlord and Tenant acknowledge that all Alterations performed by Tenant in the Premises are for the benefit of Tenant only and not for the immediate use and benefit of Landlord and no consent by Landlord to such work shall be deemed a consent to subject the Building, the Premises or Landlord’s interest in either to liability for any mechanic’s lien relating to such Alterations.

F. Condition. Tenant acknowledges and agrees that, except as expressly set forth in this Lease, there have been no representations or warranties made by or on behalf of Landlord with respect to the Premises or the Building or with respect to the suitability of either for the conduct of Tenant’s business. The taking of possession of the Premises by Tenant shall conclusively establish that the Premises and the Building were at such time substantially completed and, except as set forth in Section 3.B. hereof, in satisfactory condition, order and repair.

G. Tenant Contractors. Any work permitted to be completed by, or at the direction of Tenant hereunder shall be subject to the provisions of Exhibit “D” hereof.

8. BUILDING SERVICES. Landlord shall provide, within its standards for each item, the following services and facilities (“BUILDING SERVICES”):

A. HVAC. Heating, ventilation and air conditioning (“HVAC”), Monday to Friday from 8:00 A.M. to 6:00 P.M. and Saturdays from 8:00 A.M. to 1:00 P.M. (excluding, however, all federal, state and municipal holidays). The cost of HVAC service after the foregoing time periods shall be paid by Tenant as additional rent. Tenant agrees to cooperate fully with Landlord and any governmental agency regulating such matters as maximum and minimum temperature or

 

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energy conservation matters, and to abide by all the regulations and requirements which Landlord may reasonably prescribe for the proper functioning and protection of the HVAC systems. Such regulations and requirements include a prohibition against the use of the Premises or equipment or fixtures which would generate heat from loads in excess of four (4) watts per usable square foot of total connected loan without the prior consent of Landlord, which consent may be withheld unless Tenant reimburses Landlord for all costs and expenses relating to the installation and supply of supplemental HVAC and electrical systems;

B. ELECTRICITY. Electric current for (1) Building standard level of illumination using standard fixtures of Landlord’s choice; and (2) normal small business machines connected to Building Standard 120-volt single phase outlets during the normal hours of operation set forth in subsection 8.A.; however, Landlord’s agreement to furnish electricity does not include electricity in excess of four (4) watts per usable square foot for any use, equipment or fixture requiring a greater voltage than specified in this subsection 8.B.(2).

Such additional electrical service will be furnished, if reasonably available, upon Tenant’s tendering all costs of installation, including wiring and separate metering, and agreeing in writing to pay the cost of electricity and such service as additional rent. Additionally, the cost of replacement light bulbs, tubes, lamps and ballasts, plus the labor cost for such replacement shall be paid by Tenant as additional rent (“LIGHTING EXPENSE”). It is acknowledged that the Lighting Expense shall not be included in the OMC Sum.

C. ANCILLARY MAINTENANCE:

(1) Maintenance of service of the public toilet rooms in the Building;

(2) Maintenance of Building standard door hardware installed in the Premises by Landlord;

(3) Maintenance of floor coverings in the Common Area;

(4) Cleaning of outside and inside of exterior window panes; and

(5) Cleaning and maintenance of Common Areas of the Building and the Garage.

D. ELEVATORS. Elevator service during the Building’s business days and hours, and service via at least one (1) car at all other times.

E. JANITORIAL. Janitor service, including cleaning of space, dusting of furniture and vacuuming, as described in EXHIBIT “F” attached hereto. Tenant shall reimburse Landlord for all additional cleaning expenses incurred, including, without limitation, for garbage and trash removal expenses, over and above the normal cleaning and other janitorial service provided by Landlord due to the presence of an eating area within the Premises; the installation of food and beverage dispensing machines or otherwise.

F. WATER. Hot and cold water for lavatory purposes.

 

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9. LIMITATION REGARDING SERVICES. Landlord does not warrant that the Building Services specified in Section 8 hereof shall be free from any slow-down, interruption or stoppage pursuant to voluntary agreement by and between Landlord and governmental bodies and regulatory agencies, or caused by the maintenance, repair, substitution, renewal, replacement or improvements or any of the equipment involved in the furnishing of any such Building Services, or caused by changes of services, alterations, strikes, lockouts, labor controversies, fuel shortages, accidents, acts of God or the elements or any other cause whatsoever. Specifically, no such slow-down shall be construed as an eviction, actual or constructive, of Tenant, nor shall same cause any abatement of rent payable hereunder or in any manner or for any purpose relieve Tenant from any of its obligations hereunder. In no event shall Landlord be liable for damage to persons or property or be in default hereunder as a result of such slow-down, interruption or stoppage. Notwithstanding anything to the contrary in this Lease, if: (a) any services or utilities provided by Landlord are interrupted or discontinued for reasons or causes directly within the Landlord’s control, and Tenant is unable to use and ceases to 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 five (5) consecutive business days after receiving such notice, Rent hereunder shall thereafter be abated until such time as such services or utilities are restored.

10. CARE OF PREMISES.

A. LANDLORD MAINTENANCE. Landlord shall make, at its sole cost and expense (except to the extent included in the OMC Sum), all repairs necessary to maintain the plumbing, HVAC and electrical systems, windows, floors and all other Building Standard items which constitute a part of the Premises and are installed or furnished by Landlord. Landlord shall not be obligated for any of such repairs until the expiration of a reasonable period of time after written notice from Tenant that such repair is needed. In no event shall Landlord be obligated under this Section 10 to repair Tenant’s personal property or any damage caused by any act, omission, accident or negligence of the Tenant or its invitees or subtenants. Landlord shall not be liable by reason of any damage or injury to or interference with Tenant’s business arising from any repairs, alterations, additions, improvements or other work, in accordance with this Lease in or to the Premises or the Building or to any appurtenances or equipment therein. Landlord shall interfere as little as reasonably practicable with the conduct of Tenant’s business. There shall be no abatement of rent because of such repairs or alterations, additions, improvements or other work, except as provided in Section 13 hereof.

B. TENANT MAINTENANCE. Except for repairs which Landlord is obligated to make under subsection 10.A., Tenant shall perform all work, at Tenant’s sole cost and expense, necessary to maintain the Premises and shall keep the Premises and the fixtures therein in good, clean, neat and orderly condition. All such work shall be in quality at least equal to the original work and installations. If the Tenant refuses or neglects to do such work, or fails to diligently prosecute the same to completion after written notice to Tenant of the need therefor, Landlord may do such work at the sole cost and expense of Tenant and such cost and expense shall be collectible as additional rent, together with a ten percent (10%) supervisory charge.

 

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11. NEGATIVE COVENANTS OF TENANT. Tenant agrees that it will not do or suffer to be done any act, matter or thing objectionable to the fire and casualty insurance companies whereby the fire and casualty insurance and other insurance now in force or hereafter to be placed on the Premises or the Building (or any portions thereof) shall become void or suspended, or whereby the same shall be rated as a more hazardous risk than at the Commencement Date. In case of a breach of this covenant, in addition to all other remedies of Landlord hereunder, Tenant agrees to pay to Landlord as additional rent any and all increases in premiums on insurance carried by Landlord on the Premises or the Building (or any portions thereof) so caused by Tenant. Tenant shall not commit or allow to be committed any waste upon the Premises or any public or private nuisance or other act or thing which disturbs the quiet enjoyment of any other occupant of the Building. Tenant shall not without the prior written consent of Landlord install any equipment, machinery or fixtures which will overload the Building or any portion thereof or which will cause any substantial noise, vibration or fumes. If any of Tenant’s office machines and equipment should create noise, vibration, fumes or otherwise disturb the quiet enjoyment of any other occupant in the Building, Tenant shall provide adequate insulation or take such other action as may be necessary to eliminate the disturbance. Further, Tenant will not permit foreign substances to be thrown within any laboratories contained within the Premises; will not place trash or refuse or other articles in any halls or Common Areas; will not ship or receive articles outside of designated loading and receiving areas and/or times.

12. SUBLETTING AND ASSIGNING.

A. GENERAL RESTRICTION. Except as expressly permitted pursuant to this Section 12, Tenant shall not, without the prior written consent of Landlord, assign or hypothecate 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 and shall, at the option of Landlord, terminate this Lease. The Lease shall not, nor shall any interest herein, be assignable as to the interest of Tenant by operation of law without the written consent of Landlord.

B. CONSENT. If, at any time or from time to time during the Term and any extensions thereof, Tenant desires to sublet all or any part of the Premises, or assign this Lease, Tenant shall give written notice to Landlord thereof, which notice shall contain the name, address and description of the business of the proposed assignee or subtenant, its most recent financial statement and other evidence of financial responsibility, its intended use of the Premises, and the terms and conditions of the proposed assignment or subletting. Landlord shall have the option, exercisable by notice given to Tenant within thirty (30) days after receipt of Tenant’s notice of reacquiring the portion of the Premises proposed to be sublet or assigned and terminating the Lease with respect thereto. If Landlord does not exercise such option, provided that Tenant is not in default, Tenant shall be free to sublet such space or assign this Lease to such proposed assignee or subtenant, subject to the following:

(1) the consent of Landlord, it being understood and agreed by the parties hereto that it will not be unreasonable for Landlord to withhold consent if the reputation, financial responsibility, or business of a proposed assignee or subtenant is unsatisfactory to Landlord, or if Landlord deems such business to not be consistent with the other occupants in the Building, or if the intended use by the proposed assignee or subtenant conflicts with any commitment made by Landlord to any other occupant in the Building;

 

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(2) if the space is not subleased or assigned within thirty (30) days from the expiration of Landlord’s option as set forth above, or any subsequent option as provided in this subsection 12.B.(2), Tenant shall, prior to entering into a sublease or an assignment of said space, once again give Landlord written notice and Landlord shall have thirty (30) days after the receipt thereof of reacquiring that portion of the Premises and terminating the Lease with respect thereto;

(3) no sublease or assignment shall be valid and no subtenant or assignee shall take possession of the space subleased or assigned until an executed counterpart of agreement of sublease or assignment has been delivered to and approved by Landlord;

(4) no subtenant or assignee shall have a right further to sublet or assign this Lease;

(5) any sums or other economic consideration received by Tenant as a result of such subletting or assignment whether denominated rentals under the sublease or otherwise, which exceed, in the aggregate, the total sums which Tenant is obligated to pay Landlord under this Lease (pro-rated to reflect obligations allocable to that portion of the Premises subject to such sublease or assignment) shall be payable to Landlord as additional rent under this Lease without affecting or reducing any other obligation of Tenant hereunder;

(6) such assignee shall assume and be deemed to have assumed this Lease and shall be and remain liable jointly and severally with Tenant for all payments and for the due performance of all terms, covenants, conditions and provisions contained in this Lease and no such assignment shall be binding upon Landlord unless the assignee shall deliver to Landlord an agreement acceptable to Landlord containing a covenant of assumption by the assignee; and

(7) Tenant’s payment to Landlord, on demand, of Landlord’s reasonable costs, including attorney’s fees, in responding to any requests by Tenant for Landlord to consent.

C. FUTURE COMPLIANCE. 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. The acceptance of rent by Landlord from any other person shall not be deemed to be a waiver by Landlord of any provision hereof. Consent to one assignment or subletting shall not be deemed consent to any subsequent assignment or subletting. In the Event of Default by any assignee of Tenant or any successor of Tenant in the performance of any of the terms hereof, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against such assignee or successor. Landlord may consent to subsequent assignment or subletting or may execute amendments or modifications to this Lease with assignees of Tenant without notifying Tenant or any successor of Tenant, and without obtaining its or their consent thereto and such action shall not relieve Tenant of liability under this Lease, except as set forth above.

D. OTHER ASSIGNMENTS OR SUBLETTINGS.

(1) If Tenant is a corporation, any dissolution, liquidation, merger, consolidation or other reorganization of such corporation or any transfer of a controlling percentage of the corporate stock of Tenant (whether in a single transaction or cumulatively)

 

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shall constitute an assignment of this Lease for all purposes of this Section 12. This subsection 12.D.(1) shall not apply whenever Tenant is a corporation, the outstanding voting stock of which is listed or traded on a recognized securities exchange.

(2) If Tenant is a partnership and if, at any time, during the Term or any extension thereof the person or persons who, at the time of the execution of this Lease, own the partners’ interest cease to own the partners’ interest (except as a result of transfers by bequest or inheritance), such cessation of ownership shall constitute as assignment of this Lease for all purposes of this Section 12.

13. FIRE OR OTHER CASUALTY.

A. GENERAL. Subject to the provisions of this subsection 13.A. and subsections 13.B. and 13.C, if the Premises are damaged by fire or other casualty, the damaged areas shall be repaired by and at the expense of Landlord to at least as good a condition as that which existed immediately prior to such damage, (i.e. the Landlord’s Work) provided that Landlord receives adequate insurance proceeds including without limitation, the proceeds of the “LEASEHOLD IMPROVEMENT INSURANCE” (as hereinafter defined). In no event shall the Landlord be obligated to repair or restore to a condition in excess of that required by Landlord’s Work. The rent until such repairs shall be made shall be apportioned from the date of such fire or other casualty according to the part of the Premises which is usable by Tenant. Landlord agrees to repair such damage within a reasonable period of time after receipt from Tenant of written notice of such damage. Landlord’s obligation to repair as aforesaid is subject to any delays caused by Acts of God, labor strikes or other events beyond Landlord’s control, including without limitation, the failure of any mortgagee to release insurance proceeds to Landlord sufficient to pay the costs of any such repairs and Landlord’s receipt of the proceeds of the Leasehold Improvement Insurance. Landlord shall not be liable for any inconvenience or annoyance to Tenant or injury to the business of Tenant resulting in any way from such damage or the repair thereof. Tenant acknowledges notice that (1) Landlord shall not obtain insurance of any kind on Tenant’s furniture, furnishings, equipment or fixtures, alterations, improvements and additions, (2) it is Tenant’s obligation to obtain such insurance at Tenant’s sole cost and expense, and (3) Landlord shall not be obligated to repair any damage thereto, replace the same or otherwise do any work thereto except as set forth in this subsection 13.A. with respect to those improvements insured with the Leasehold Improvement Insurance.

B. RECONSTRUCTION. If, in the sole opinion of Landlord, (1) the Premises are rendered substantially untenantable by reason of such fire or other casualty, or (2) twenty percent (20%) or more of the Premises is damaged by said fire or other casualty and less than six (6) months would remain of the Term or any extension thereof upon completion of the required repairs thereto, Landlord shall have the right, to be exercised by notice in writing delivered to Tenant within thirty (30) days from and after such occurrence, to elect not to repair the Premises and, in such event, this Lease, the Term and the tenancy hereby created shall cease as of the date of such occurrence, the rent to be adjusted as of such date.

C. SUBSTANTIAL DAMAGE. If the Building, in the sole opinion of the Landlord, shall be substantially damaged by fire or other casualty (regardless of whether or not the Premises were damaged by such occurrence), Landlord shall have the right, to be exercised by

 

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notice in writing delivered to Tenant within sixty (60) days from and after such occurrence, to terminate this Lease and, in such event, this Lease, the Term and the tenancy hereby created shall cease as of the date of such termination unless terminated as of the date of such occurrence in accordance with subsection 13.B hereof, the rent to be adjusted as of the date of such termination.

D. CONTRIBUTION. Anything in this Section 13 to the contrary notwithstanding, if the damage resulted from or was contributed directly or indirectly by the fault, neglect or other conduct of Tenant or its subtenants or invitees, there shall be no abatement of rent except and to the extent Landlord received proceeds from Landlord’s rental income insurance policy, if any, to compensate Landlord for loss of rent.

14. LIABILITY.

A. DAMAGE IN GENERAL. Landlord, Agent and their respective agents, servants, and employees shall not be liable for, and Tenant hereby releases and relieves Landlord, Agent and their respective agents, servants, and employees from, all liability in connection with any and all loss of life, personal and bodily injury, damage to or loss of property, consequential damages loss or interruption of business occurring to Tenant, subtenants, invitees or any other person in or about or arising out of the Premises from, without limitation, (1) any fire, other casualty, accident, occurrence or condition in or upon the Premises or the Building; (2) any defect in or failure of: (a) plumbing, sprinkler, electrical, HVAC systems, or any other equipment or systems of the Premises or the Building, and (b) the vertical transportation, stairways, railings or walkways of the Building; (3) any steam, fuel, oil, water, rain or snow that may leak into, issue or flow from any part of the Premises or the Building from the drains, pipes or plumbing, sewer or other installation of same, or from any other place or quarter; (4) the breaking or disrepair of any installations, equipment and other systems; (5) the falling of any fixture or well or ceiling materials; (6) broken glass; (7) latent or patent defects; (8) the exercise of any rights by Landlord or Agent under the terms and conditions of this Lease; (9) any acts or omissions of the other tenants or occupants of the Building or of nearby buildings; (10) any acts or omissions of other persons; (11) theft, Act of God, public enemy, injunction, riot, strike, insurrection, war, court order, or any order of any governmental authorities having jurisdiction over the Premises. The generality of the foregoing notwithstanding, Tenant’s release and relief of Landlord pursuant to this Section shall not apply where such loss of life, personal and bodily injury, damage to or loss of property, consequential damages loss or interruption of business Landlord’s is caused by the negligence or other wrongful act or omission on the part of Landlord or any of its agents, contractors, subcontractors, servants, employees, subtenants or licensees.

B. INDEMNITY. Tenant shall defend, indemnify and hold harmless Landlord, Agent and their respective agents and employees from and against all liabilities, obligations, damages, penalties, claims, costs, charges and expenses, including reasonable attorneys’ fees, which may be imposed upon or incurred by or asserted by reason of any of the following which shall occur during the Term, or during any period of time prior to the Commencement Date when Tenant may have been given access to or possession of all or any portion of the Premises:

(1) any work or act done in, on or about the Premises or any part thereof at the direction of Tenant, its agents, contractors, subcontractors, servants, employees, licensees or invitees, unless such work or act is done or performed by Landlord or its agents or employees;

 

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(2) any negligence or other wrongful act or omission on the part of Tenant or any of its agents, contractors, subcontractors, servants, employees, subtenants, licensees or invitees;

(3) Tenant’s use and occupancy of the Premises and/or any accident, injury or damage to any person or property occurring in, on or about the Premises or any part thereof unless caused by the negligence of Landlord, its employees or agents; and

(4) any failure on the part of Tenant to perform or comply with any of the covenants, agreements, terms, provisions, conditions or limitations contained in this Lease on its part to be performed or complied with.

Landlord shall defend, indemnify and hold harmless Tenant and its agents and employees from and against all liabilities, obligations, damages, penalties, claims, costs, charges and expenses, including reasonable attorneys’ fees, which may be imposed upon or incurred by or asserted by reason of any of the following which shall occur during the Term:

(1) any work or act done in, on or about the Building outside of the Premises at the direction of Landlord, its agents, contractors, subcontractors, servants, employees or licensees, unless such work or act is done or performed by Tenant or its agents, contractors, subcontractors, servants, employees, licensees or invitees;

(2) any negligence or other wrongful act or omission on the part of Landlord or any of its agents, contractors, subcontractors, servants, employees, subtenants or licensees;

(3) any accident, injury or damage to any person or property occurring in, on or about the Building outside of the Premises unless caused by the negligence or other wrongful act or omission of Tenant or its agents, contractors, subcontractors, servants, employees, licensees or invitees;

(4) any failure on the part of Landlord to perform or comply with any of the covenants, agreements, terms, provisions, conditions or limitations contained in this Lease on its part to be performed or complied with.

The aforesaid indemnity obligations shall survive the expiration of the Term or the termination of the Lease.

 

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15. INSURANCE.

A. INSURANCE REQUIREMENTS. During the Term and any extension thereof, Tenant shall obtain and maintain and promptly pay all premiums for the following types of insurance in the amounts specified and in the form heretofore provided for:

(1) Public Liability and Property Damage. General Public Liability Insurance covering the Premises and Tenant’s use thereof against claims for bodily or personal injury or death, and property damage occurring upon, in or about the Premises, such insurance to afford protection to the limit of not less than $3,000,000.00 combined single limit in respect of injury or death to any number of persons arising out of any one occurrence. The insurance coverage required under this Section shall, in addition, extend to any liability of Tenant arising out of the indemnities provided for in Section 14. The general aggregate limits under the General Public Liability Insurance policy or policies must apply separately to the Premises and to tenant’s use thereof. Accordingly, if Tenant obtains General Public Liability Insurance hereunder in the Commercial General Liability form of policies, or its equivalent as determined by Landlord, Tenant shall also obtain Insurance Services Office (“ISO”) Endorsement CG-25-04-11-85, Amendment-Aggregate Limit of Insurance (Per Location) or its equivalent as determined by Landlord (the “ENDORSEMENT”). The certificate of insurance evidencing the Commercial General Liability form of policies and the Endorsement shall specify on the face thereof that the limits of such policies apply separately to the Premises.

(2) Tenant Leasehold Improvements and Property. Insurance covering: (a) all leasehold improvements in the Premises (such insurance is hereinafter referred to as the “LEASEHOLD IMPROVEMENT Insurance”); (b) all Tenant’s leasehold improvements performed by, or at the direction of Tenant including heating, ventilating and air conditioning equipment and other alterations and additions made by Tenant pursuant to this Lease; and (c) trade fixtures, merchandise and personal property from time to time in, on or upon the Premises. All such insurance coverage shall be in amounts not less than one hundred percent (100%) of the full replacement cost from time to time during the Term, providing protection against perils included within the standard state form of fire and extended coverage insurance policy, together with insurance against sprinkler damage, vandalism and malicious mischief. The policy required by subsection (a) above shall name Landlord as loss Payee. All other policy proceeds from insurance coverage carried by Tenant pursuant to (b) and (c) above shall be held in trust by Tenant’s insurance company for the repair, reconstruction and restoration or replacement of the property damaged or destroyed unless this Lease shall cease and terminate under the provisions of Article 13.

(3) Workers’ Compensation and Employer’s Liability. Workers’ Compensation and Employer’s Liability insurance affording statutory coverage and containing statutory limits with the Employer’s Liability portion thereof to have minimum limits of $1,000,000.00.

B. ADDITIONAL REQUIREMENTS.

All policies of insurance provided for in this Section 15 shall be issued in form acceptable to Landlord by insurance companies with a financial size of not less than A+ as rated in the most current available “BEST’S INSURANCE REPORTS,” and qualified to do business in the state in which Landlord’s Building is located. Each and every such policy:

(1) Except for Worker’s Compensation, Employer’s Liability insurance, and casualty insurance covering Tenant’s personal property, furniture and equipment shall be issued in the name of Tenant with Landlord and Agent and Landlord’s mortgagee, if requested, as additional insureds and any other parties in interest from time to time designated in writing by notice from Landlord to Tenant;

 

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(2) Except for Worker’s Compensation, Employer’s Liability insurance, and casualty insurance covering Tenant’s personal property, furniture and equipment shall be for the mutual and joint benefit and protection of Landlord and Tenant and any such other parties in interest;

(3) shall (or a certificate thereof shall) be delivered to each of Landlord and any such other parties in interest within ten (l0) days after delivery of possession of the Premises to Tenant and thereafter within thirty (30) days prior to the expiration of each such policy, and, as often as any such policy shall expire or terminate. Renewal or additional policies shall be procured and maintained by Tenant in like manner and to like extent;

(4) shall contain a provision that the insurer will give to Landlord and such other parties in interest at least thirty (30) days notice in writing in advance of any material change, cancellation, termination or lapse, or the effective date of any reduction in the amounts of insurance; and

(5) shall be written as a primary policy which does not contribute to and is not in excess of coverage which Landlord may carry.

C. BLANKET INSURANCE. Any insurance provided for in this Section may be maintained by means of a policy or policies of blanket insurance, covering additional items or locations or insureds, provided, however, that:

(1) Except for Worker’s Compensation, Employer’s Liability insurance, and casualty insurance covering Tenant’s personal property, furniture and equipment, Landlord and any other parties in interest from time to time designated by Landlord to Tenant shall be named as an additional insured thereunder as its interest may appear;

(2) the coverage afforded Landlord and any such other parties in interest will not be reduced or diminished by reason of the use of such blanket policy of insurance;

(3) any such policy or policies except any covering the risks referred to in subsection 15.A.(1) shall specify therein (or Tenant shall furnish Landlord with a written statement from the insurers under such policy specifying) the amount of the total insurance allocated to the Tenant’s improvements and property more specifically detailed in subsection 15.A.(2); and

(4) the requirements set forth in this Section are otherwise satisfied.

D. INSPECTION OF POLICIES. Tenant agrees to permit Landlord at all reasonable times to inspect the policies of insurance of Tenant with respect to the Premises for which policies or copies thereof are not delivered to Landlord.

E. LANDLORD INSURANCE. During the term of this Lease, Landlord covenants that it will maintain comprehensive general liability insurance with broad form extended

 

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coverage with a minimum coverage of combined single limit of Three Million Dollars ($3,000,000). In addition, Landlord shall maintain and keep in effect throughout the term of this Lease insurance against loss or damage to the Building by fire or such other casualties as may be included within all-risk insurance, such insurance to be in an amount equal to the full replacement value of the Building. Upon Tenant’s written request, Landlord shall provide Tenant with current certificates evidencing these policies.

F. WAIVER. Each party hereby waives any and all rights of recovery against the other party hereto and its officers, agents, employees, or representatives, and Tenant hereby waives any rights it may have against any mortgagee, for the loss, damage, or injury to property arising from any event which is covered by insurance against fire, vandalism, malicious mischief, and extended coverage, and such other perils as are from time to time included in the “all risk” insurance policy(ies) carried by Landlord and Tenant pursuant to this Section 15 provided that such waiver shall apply only to the extent of any recovery by the injured party under such insurance. In the event the other party is a self-insurer (as may be permitted herein), such waiver shall be to the limit of that insurance required to be carried hereunder. Each party hereto, on behalf of its respective insurance companies hereby waives, to the extent of any recovery under any such insurance policies, any right of subrogation that one may have against the other, and Tenant on behalf of its insurance companies, hereby waives any right of subrogation which such insurer may have against any mortgagee. Each party hereto shall cause its respective insurance policies to contain endorsements evidencing such waivers of subrogation. The foregoing releases and waivers of subrogation shall be operative only so long as same shall neither preclude the obtaining of insurance nor diminish, reduce or impair the liability of any insurer. In the event that a waiver of subrogation cannot be obtained, the other party is relieved of the obligation to obtain a waiver of subrogation rights with respect to the particular insurance involved.

16. EMINENT DOMAIN.

A. TOTAL OR PARTIAL TAKING. If the whole of the Premises shall be condemned or taken either permanently or temporarily for any public or quasi-public use or purpose, under any statute or by right of eminent domain, or by private purchase in lieu thereof, then, in such event, the Term shall cease and terminate from the date when possession is taken thereunder pursuant to such proceeding or purchase. The rent shall be adjusted as of the time of such termination and any rent paid for the period thereafter shall be refunded. If a portion only of the Premises or a portion of the Building containing same shall so be taken (even though the Premises may not have been affected by the taking of some other portion of the Building containing same), Landlord may elect to terminate this Lease from the date when possession is taken thereunder pursuant to such proceeding or purchase or Landlord may elect to repair and restore, at its own expense, the portion not taken and thereafter the rent shall be reduced proportionate to the portion of the Premises taken.

B. AWARD. In the event of any total or partial taking of the Premises or the Building, Landlord shall be entitled to receive the entire award in any such proceeding and Tenant hereby assigns any and all right, title and interest or Tenant now or hereafter arising in or to any such award or any part thereof and hereby waives all rights against Landlord and the condemning authority, except that Tenant shall have the right to claim and prove and to receive

 

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any award which may be made to Tenant, if any, specifically for damages for loss of good will, movable trade fixtures, equipment and moving expenses, provided that such award in no way diminishes or adversely affects Landlord’s award.

17. DEFAULT AND REMEDIES.

A. EVENTS OF DEFAULT. The occurrence of any of the following shall constitute a material breach of the Lease and default by Tenant under the Lease (herein called an “EVENT OF DEFAULT”):

(1) failure of Tenant to take possession of the Premises within fifteen (15) days after written notice to Tenant that the same are substantially completed or ready for occupancy;

(2) the vacation, desertion or other abandonment of the Premises by Tenant; or Tenant’s removal or manifestation of an intention to remove its property from the Premises;

(3) a failure by Tenant to pay, when due, any installment of rent hereunder or any such other sum herein required to be paid by Tenant to Landlord and the continuation of such failure for five (5) days after written notice thereof to Tenant; provided that Landlord shall not be obligated to give such notice more than twice in any twelve (12) month period;

(4) a failure by Tenant to observe and perform any other provision or covenant of this Lease to be observed or performed by Tenant, where such failure continues for twenty (20) days after written notice thereof to Tenant provided, however, that if the nature of the failure is such that the same cannot reasonably be cured within such period, Tenant shall not be deemed to be in default if Tenant shall immediately after such written notice commence to cure the same, shall continuously and diligently prosecute such curing thereafter to completion; and

(5) the filing of a petition by or against Tenant for adjudication as a bankrupt or insolvent or for its reorganization or for the appointment pursuant to any local, state or federal bankruptcy or insolvency law of a receiver or trustee of Tenant’s property; or, an assignment by Tenant for the benefit of creditors; or, the taking possession of the property of Tenant by any local, state or federal governmental officer or agency or court-appointed official for the dissolution or liquidation of Tenant or for the operating, either temporary or permanent, of Tenant’s business, provided, however, that if any such action is commenced against Tenant the same shall not constitute a default if Tenant causes the same to be dismissed or discharged within sixty (60) days after the filing of same.

(6) the maintenance by Tenant of any waste, waste products, radioactive waste, polychlorinated byphenyls, asbestos, toxic or hazardous material or any other substance of any kind which is regulated by any law, statute, ordinance, rule, or regulation (collectively “WASTE”) in the Premises.

(7) the failure to comply with the provisions of Article 12 of the Lease.

 

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B. REMEDIES OF LANDLORD.

(1) Upon the occurrence of any Event of Default Landlord, at its option and without notice or other act, may exercise any and all rights and remedies at law and/or in equity and/or under the Lease including, without limitation, all or any one or more of the following:

(a) Landlord may cure for the account of Tenant any such default of Tenant and immediately recover, as additional rent from Tenant any expenditures made and the amount of any obligations incurred in connection therewith, plus interest equal to four (4) point(s) above the prime rate of PNC Bank, Philadelphia, Pennsylvania (as the same may exist from time to time) (“PRIME RATE”) from the date of any such expenditure.

(b) Landlord may, without notice or other act, accelerate the whole or any part of the Minimum Rent and additional rent for the entire unexpired balance of the Term, as well as all other charges, payments, costs and expenses herein agreed to be paid by Tenant (collectively the “ACCELERATED RENT”). Any Accelerated Rent shall be due and payable on the date Landlord demands payment thereof as if by the terms of the Lease the same were due and payable on that date. To determine the amounts of the additional rent component of the Accelerated Rent, Landlord may fix those amounts based upon the highest monthly amounts thereof in or after the calendar year during which the Event of Default occurred.

(c) Landlord may terminate the Lease by written notice to Tenant stating that the Lease is terminated. If such notice is given to Tenant, the Lease, the then unexpired Term and all of Tenant’s estate, rights, title and interest in and to the Premises and the Lease shall cease and expire on the date specified in such notice, to be no less than five (5) days after the date of such notice, without any right on the part of the Tenant thereafter to nullify such termination by payment of any sum due or by the performance of any term, provision, covenant, agreement or condition broken except that Tenant shall be and remain liable to Landlord under the Lease through the date on which the Term would otherwise have expired. If Landlord terminates this Lease, Tenant shall immediately quit and surrender to Landlord the Premises and remove itself and all other occupants thereof and, at Landlord’s option, any property thereon without Landlord being liable to indictment, prosecution or damages therefor. No termination of the Lease shall relieve Tenant of Tenant’s liability to Landlord or Tenant’s obligations under the Lease, whether or not the Premises shall be relet, all of which shall survive such termination.

(d) Landlord may, at any time after the occurrence of any Event of Default, whether or not the Lease has been terminated, re-enter and repossess the Premises and any part thereof with or without process of law, provided no undue force shall be used, and shall have the option without the need of any notice or other act (but not the obligation) in its own name or as agent for Tenant if the Lease has not been terminated or in its own behalf if the Lease has been terminated, to relet all or any part of the Premises; provided that Landlord shall not be required to accept any tenant proposed by Tenant or observe any instruction given by Tenant about such reletting. The failure of Landlord to relet the Premises or any part or parts thereof shall not release Tenant or affect Tenant’s liability hereunder, nor shall Landlord be liable for failure to relet, or in the event of reletting, for failure to collect the rent thereof. In no event shall Tenant be entitled to receive any excess of net rents collected over sums payable by Tenant to Landlord hereunder. No such re-entry or taking possession of the Premises shall be construed as an election on the Landlord’s part to terminate the Lease unless a written notice of such election by Landlord is given to Tenant. Notwithstanding any such reletting without termination,

 

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Landlord may at any time thereafter elect to terminate the Lease for any previous Event of Default. For the purpose such reletting, Landlord may decorate or make repairs, changes, improvements, alterations or additions (collectively the “RELETTING WORK”) in or to the Premises to the extent deemed by Landlord desirable or convenient, and the cost of the Reletting Work shall be charged to and payable by Tenant as additional rent hereunder, as well as any brokerage and legal fees expended by Landlord. If Landlord relets, all rents collected by Landlord from such reletting shall be applied first to the payment of any Tenant indebtedness not set forth in the immediately ensuing provisions of this sentence, second to the payment of any costs and expenses of such reletting including, without limitation, brokerage fees, attorneys’ fees and costs and costs of the Reletting Work, third to unpaid rent other than Accelerated Rent, fourth to unpaid Accelerated Rent, if any, or if none, then to future Minimum Rent, additional and other rent as the same becomes due and payable hereunder. If the rents collected by Landlord from such reletting during a month are less than that to be paid during that month by Tenant hereunder, Tenant shall pay such deficiency to Landlord. Such deficiency shall be calculated and paid monthly on the days when the rent would have been payable under the Lease.

(e) Landlord may commence one or more actions to recover all unpaid rent including, without limitation, the Accelerated Rent and/or recover possession of the Premises.

(f) All inventory, equipment, machinery, trade fixtures, contents and other personal property of any kind no nature whatsoever at any time or from time to time within the Premises, whether owned by Tenant or others (collectively the “SUBJECT PROPERTY”) is and throughout the Term as well as thereafter shall be subject to the lien of Landlord and distraint for any and all rent not paid when due, and Tenant hereby grants to Landlord such lien on the Subject Property and the right and remedy of distraint thereof together with the right and remedy of “SELF-HELP” (hereinafter defined). Such lien of Landlord shall be conclusively presumed to have been perfected and distraint of the Subject Property to have occurred by and on the date of a written notice of distraint given to Tenant or a written notice given to Tenant of the occurrence of an Event of Default (whichever written notice is first given). The term “SELF-HELP” means and shall be any action or other conduct by Landlord, any agent of or anyone else acting for Landlord, by which Tenant is deprived of possession or control over the Subject Property and includes, without limitation, the changing of locks of the Premises, denying Tenant entry to the Premises, terminating or otherwise ceasing Building Services to the Premises (including, without limitation, electricity, gas and/or water), entering the Premises, removing any, some or all of the Subject Property therefrom and/or storing the same, all at Tenant’s sole cost and expense, proceeding with or without writ or process, assistance or involvement of constables or other officers and selling at private or other sale, by auction or otherwise, the Subject Property. Tenant hereby irrevocably authorizes and empowers Landlord and any agent of and/or anyone else acting for Landlord to exercise the right and remedy of Self-Help, Tenant agreeing that the exercise thereof is absolutely privileged and shall not constitute a breach or default of the Lease by Landlord or grounds for damages or other relief in favor of Tenant or any one directly or indirectly claiming by, through or under Tenant and Tenant shall defend, protect, indemnify and hold harmless Landlord, all agents of and anyone else acting for Landlord, therefrom.

 

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(2) Landlord shall have the right of injunction (including, without limitation, specific performance) in the event of an Event of Default or threat thereof, or other default or breach or threat thereof by Tenant of any of the agreements, conditions, covenants or terms hereof 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 the Lease or at law or in equity 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 other.

(3) Tenant expressly waives the benefits of all laws, now or hereafter in force, exempting any of Tenant’s property on the Premises or elsewhere from distraint, levy or sale in any proceedings taken by Landlord to enforce any rights under the Lease. Tenant further waives the right of inquisition on any real estate that may be levied upon to collect any amount which may become due under the terms and conditions of the Lease, and does hereby voluntarily condemn the same and authorize the Prothonotary to enter a writ of execution or other process upon Tenant’s voluntary condemnation, and further agrees that said real estate may be sold on a writ of execution or other process. Tenant specifically waives the right to the three (3) months notice and/or the fifteen (15) or thirty (30) days notice required under certain circumstances by the Landlord and Tenant Act of 1951, as amended, and agrees that the notice or notices period or periods set forth in the Lease shall be sufficient in either or any such case. The right to confess or otherwise enter judgment against Tenant and to enforce all of the other provisions of the Lease herein provided for may be exercised by any assignee of Landlord’s right, title and interest in the Lease, in such assignee’s own name, notwithstanding the fact that any or all assignments of said right, title and interest may not be executed and/or witnessed in accordance with any Act of Assembly and any and all laws regulating the manner and/or form in which such assignments shall be executed and witnessed.

(4) CONFESSION OF JUDGMENT - RENT. TENANT COVENANTS AND AGREES THAT IF THERE IS AN EVENT OF DEFAULT, THEN LANDLORD MAY, WITHOUT LIMITATION AND WITHOUT NOTICE OR OTHER ACT, CAUSE JUDGMENTS FOR MONEY TO BE ENTERED AGAINST TENANT AND, FOR THOSE PURPOSES, TENANT HEREBY GRANTS THE FOLLOWING WARRANT OF ATTORNEY: (I) TENANT HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD AND/OR LANDLORD (AS WELL AS SOMEONE ACTING FOR LANDLORD), IN ANY AND ALL ACTIONS COMMENCED AGAINST TENANT FOR RECOVERY OF THE RENT AND/OR OTHER AMOUNTS TO BE PAID TO LANDLORD BY TENANT, TO APPEAR FOR TENANT AND TO CONFESS OR OTHERWISE ENTER JUDGMENT AGAINST TENANT AND ASSESS DAMAGES AGAINST TENANT FOR ALL OR ANY PART OF THE RENT AND/OR OTHER AMOUNTS TO BE PAID TO LANDLORD BY TENANT INCLUDING, WITHOUT LIMITATION, ACCELERATED RENT, TOGETHER WITH INTEREST, COSTS AND AN ATTORNEYS’ COMMISSION OF FIVE PERCENT (5%) OF THE FULL AMOUNT OF SUCH RENT, AMOUNTS AND SUMS, AND THEREUPON WRITS OF EXECUTION FOR LEVY AND ATTACHMENT MAY FORTHWITH ISSUE AND BE SERVED, WITHOUT ANY PRIOR NOTICE, WRIT OR PROCEEDING WHATSOEVER; AND (II) THE WARRANT OF ATTORNEY HEREIN GRANTED SHALL NOT BE EXHAUSTED BY ONE OR MORE EXERCISES THEREOF BUT SUCCESSIVE ACTIONS MAY BE COMMENCED

 

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AND SUCCESSIVE JUDGMENTS MAY BE CONFESSED OR OTHERWISE ENTERED AGAINST AND DAMAGES ASSESSED AGAINST TENANT FROM TIME TO TIME AS OFTEN AS ANY OF THE RENT AND/OR OTHER AMOUNTS AND SUMS SHALL FALL OR BE DUE OR BE IN ARREARS, AND THIS WARRANT OF ATTORNEY MAY BE EXERCISED BEFORE AND/OR AFTER THE TERMINATION OR EXPIRATION OF THE TERM AND/OR DURING OR AFTER ANY EXTENSIONS OF THE TERM OR RENEWALS OF THE LEASE.

(5) CONFESSION OF JUDGMENT - POSSESSION. TENANT COVENANTS AND AGREES THAT IF THERE IS AN EVENT OF DEFAULT OR THE LEASE IS TERMINATED OR THE TERM OR ANY EXTENSIONS OR RENEWALS THEREOF IS EXPIRES, THEN AND IN ADDITION TO THE RIGHTS AND REMEDIES SET FORTH IN SECTION 17.B(4), LANDLORD MAY, WITHOUT LIMITATION AND WITHOUT NOTICE OR OTHER ACT, CAUSE JUDGMENTS IN EJECTMENT FOR POSSESSION OF THE PREMISES TO ENTERED AGAINST TENANT AND, FOR THOSE PURPOSES, TENANT HEREBY GRANTS THE FOLLOWING WARRANT OF ATTORNEY: (I) TENANT HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD AND/OR LANDLORD (AS WELL AS SOME ONE ACTING FOR LANDLORD) IN ANY AND ALL ACTIONS COMMENCED FOR RECOVERY OF POSSESSION OF THE PREMISES TO APPEAR FOR TENANT AND CONFESS OR OTHERWISE ENTER JUDGMENT IN EJECTMENT FOR POSSESSION OF THE PREMISES AGAINST TENANT WHICH JUDGMENT SHALL BE ENFORCEABLE AGAINST TENANT AND ALL PERSONS CLAIMING DIRECTLY OR INDIRECTLY BY, THROUGH OR UNDER TENANT, AND THEREUPON A WRIT OF POSSESSION MAY FORTHWITH ISSUE AND BE SERVED, WITHOUT ANY PRIOR NOTICE, WRIT OR PROCEEDING WHATSOEVER; AND (II) IF, FOR ANY REASON AFTER THE FOREGOING ACTION OR ACTIONS SHALL HAVE BEEN COMMENCED, IT SHALL BE DETERMINED THAT POSSESSION OF THE PREMISES SHOULD REMAIN IN OR BE RESTORED TO TENANT, LANDLORD SHALL HAVE THE RIGHT TO COMMENCE ONE OR MORE FURTHER ACTIONS AS HEREINBEFORE SET FORTH TO RECOVER POSSESSION OF THE PREMISES INCLUDING, WITHOUT LIMITATION, APPEARING FOR TENANT AND CONFESSING OR OTHERWISE ENTERING JUDGMENT IN EJECTMENT AGAINST TENANT FOR POSSESSION OF THE PREMISES AS HEREINBEFORE SET FORTH.

(6) IN ANY ACTION OR PROCEEDING DESCRIBED IN SUBSECTION 17.B(4) AND/OR SUBSECTION 17.B(5) OR IN CONNECTION THEREWITH, IF A COPY OF THE LEASE IS THEREIN VERIFIED BY LANDLORD OR SOMEONE ACTING FOR LANDLORD TO BE A TRUE AND CORRECT COPY OF THE LEASE (AND SUCH COPY SHALL BE CONCLUSIVELY PRESUMED TO BE TRUE AND CORRECT BY VIRTUE OF SUCH VERIFICATION), THEN IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL OF THE LEASE, ANY STATUTE, RULE OF COURT OF LAW, CUSTOM OR PRACTICE TO THE CONTRARY NOTWITHSTANDING. TENANT HEREBY RELEASES TO LANDLORD, ANYONE ACTING FOR LANDLORD AND ALL ATTORNEYS WHO MAY APPEAR FOR TENANT ALL ERRORS IN PROCEDURE REGARDING THE ENTRY OF JUDGMENT OR JUDGMENTS BY CONFESSION OR OTHERWISE BY VIRTUE OF THE WARRANTS OF ATTORNEY CONTAINED IN THE LEASE, AND ALL LIABILITY

 

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THEREFOR. THE RIGHT TO ENTER JUDGMENT OR JUDGMENTS BY CONFESSION OR OTHERWISE BY VIRTUE OF THE WARRANTS OF ATTORNEY CONTAINED IN THE LEASE AND TO ENFORCE ALL OF THE OTHER PROVISIONS OF THE LEASE MAY BE EXERCISED BY ANY ASSIGNEE OF LANDLORD’S RIGHT, TITLE AND INTEREST IN THE LEASE IN SUCH ASSIGNEE’S OWN NAME, ANY STATUTE, RULE OF COURT OR LAW, CUSTOM OR PRACTICE TO THE CONTRARY NOTWITHSTANDING.

(7) Tenant, for itself and on behalf of any and all persons claiming through or under it (including creditors of all kinds), does hereby waive and surrender all right and privilege which they or any of them might have under or by reason of any present or future law, to redeem the premises or to have a continuance of this Lease for the Term, as it may have been extended, after having been dispossessed or ejected therefrom by process of law or under the terms of this Lease or after the termination of this Lease as herein provided.

(8) Neither this Lease nor any rights or privileges hereunder shall be an asset of Tenant in any bankruptcy, insolvency or reorganization proceeding. If Landlord shall not be permitted to terminate this Lease because of the provisions of the United States Bankruptcy Code, Tenant or any trustee for it shall, within fifteen (15) days upon request by Landlord to the Bankruptcy Court, assume or reject this Lease unless all defaults hereunder shall have been cured, Landlord shall have been compensated for any monetary loss resulting from such default and Landlord shall be provided with reasonably adequate assurance of full and timely performance of all provisions, terms and conditions of this Lease on the part of Tenant to be performed.

(9) The failure or delay on the part of either party to enforce or exercise at any time any of the provisions, rights or remedies in the Lease shall in no way be construed to be a waiver thereof, nor in any way to affect the validity of this Lease or any act hereof, or the right of the party to thereafter enforce each and every such provisions, right or remedy. No waiver or any breach or default of this Lease shall be held to be a waiver of any other or subsequent breach or default. The receipt by Landlord of rent at a time when the rent is in default under this Lease shall not be construed as a waiver of such default. The receipt by Landlord of a lesser amount than the rent due shall not be construed to be other than a payment on account of the rent then due, nor shall any statement on Tenant’s check or any letter accompanying Tenant’s check be deemed an accord and satisfaction, and Landlord may accept such payment without prejudice to Landlord’s right to recover the balance of the rent due or to pursue any other remedies provided in this Lease. No act or thing done by Landlord or Landlord’s agents or employees during the Term and any extension thereof shall be deemed an acceptance of a surrender of the Premises, and no agreement to accept such a surrender shall be valid unless in writing and signed by Landlord.

18. SUBORDINATION.

A. GENERALLY. This Lease shall be subject and subordinate at all times to the lien of any mortgagees and/or ground rents and/or other encumbrances now or hereafter placed on the Premises or the Building without the necessity of any further instrument or act on the part of the Tenant to effectuate such subordination, but the Tenant covenants and agrees to execute and

 

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deliver upon demand such further instrument or instruments evidencing such subordination of this Lease to the lien of any such mortgage or mortgages and/or ground rent and/or other encumbrances as shall be desired by any mortgagee or proposed mortgagee or by any person. Tenant hereby appoints the Landlord attorney-in-fact of Tenant irrevocably to execute and deliver any such instrument for and in the name of Tenant.

B. RIGHTS OF MORTGAGEE. In the event of any act or omission of Landlord which would give Tenant the right, immediately or after lapse of a period of time, to cancel or otherwise terminate this Lease, or to claim a partial or total eviction, Tenant shall not exercise such right:

(1) Until it has given written notice of such act or omission to the holder of each such mortgage or ground Lease whose name and address shall previously have been furnished to Tenant in writing; and

(2) Until a reasonable period for remedying such act or omission shall have elapsed following the giving of such notice (which reasonable period shall in no event be less than the period to which Landlord would be entitled under this Lease or otherwise, after similar notice, to effect such remedy).

C. TENANT’S ATTORNMENT. In the event of any foreclosure of, or the exercise of a power of sale under, any mortgage or deed of trust referred to in this Section or in the event of the termination of any ground lease pursuant to which Landlord is the lessee, Tenant, upon the purchaser or lessor’s request, shall attorn to and recognize the purchaser or Landlord’s lessor as Landlord under this Lease. Tenant agrees that, upon the request of Landlord or any lessor, mortgagee or trustee, Tenant shall execute and deliver any instruments which may be required for the purposes of carrying out the intention of this Section 18.

19. SURRENDER AND HOLDING OVER.

A. SURRENDER. The Lease shall terminate and Tenant shall deliver up and surrender possession of the premises on the last day of the Term hereof, and Tenant waives the right to any notice of termination or notice to quit. Tenant covenants that upon the expiration or sooner termination of this Lease, Tenant shall deliver up and surrender possession of the Premises in the same condition in which Tenant has agreed to keep the same during the continuance of the Lease and in accordance with the terms hereof, normal wear and tear and, subject to Section 13 hereof, damage by casualty excepted.

B. HOLD OVER. Upon the failure of the Tenant to surrender possession of the Premises upon the expiration or sooner termination of this Lease, Tenant’s continued occupancy may be treated by Landlord as a month-to-month tenancy and during such occupancy, Tenant shall pay to Landlord, an amount equal to two hundred percent (200%) of the rent required to be paid under this Lease as applied to any period in which Tenant shall remain in possession after expiration or sooner termination of this Lease. If Landlord requires Tenant to timely vacate the Premises and Tenant fails to do so within thirty (30) days, in addition to being responsible for the rent set forth above, Tenant shall pay to Landlord an amount equal to all damages, consequential as well as direct, sustained by reason of Tenant’s retention of possession.

 

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20. DELAY IN POSSESSION. In the event that the Premises are not ready for Tenant’s occupancy at the time herein fixed for the beginning of the Term because of any alterations or construction now or hereafter being performed either to the Premises or to the Building of which the Premises form a part (unless such alterations are being done by Tenant or Tenant’s contractor, or unless the delay in completing such alterations was caused by Tenant in which case there shall be no suspension or proration of rent or other sums), or because of the non-completion of the Building of which the Premises form a part, or because Landlord being itself a tenant of the same Premises has not received possession thereof from its landlord for any reason whatsoever, or because of the failure or refusal of the occupant of the Premises who is or may be in possession immediately before the beginning of the Term hereof to vacate and surrender up the same, or because of any restrictions, limitations or delays caused by government regulations or governmental agencies, this Lease and the Term hereof shall not be affected thereby, nor shall Tenant be entitled to make any claim for or receive any damages whatsoever from Landlord, and the Term hereof shall nevertheless end on the date herein originally fixed, but no rent herein provided to be paid by Tenant shall become due until the Premises are substantially completed, and until that time the rent shall be suspended and pro-rated.

21. CERTAIN RIGHTS RESERVED TO LANDLORD. Landlord reserves the following rights:

A. BUILDING NAME. To name the Building and to change the names or street addresses of the Building.

B. EXTERIOR SIGNS. To install and maintain a sign or signs on the exterior of the Building.

C. REDECORATION. During the last six (6) months of the Term, if during or prior to that time Tenant has vacated or otherwise abandons the Premises, to decorate, remodel, repair, alter or otherwise prepare the Premises for reoccupancy, without affecting Tenant’s obligation to pay rent for the Premises.

D. PASS KEYS. To constantly have pass keys to the Premises.

E. ADJOINING AREAS. To have the use of and reasonable access through the Premises for the purposes of operation, maintenance, decoration and repair of all walls, windows and doors bounding the Premises (including exterior walls of the Building, core corridor walls and doors and any core corridor entrance) except the inside surfaces thereof, any terraces or roofs adjacent to the premises used for shafts, pipes, conduits, fan rooms, ducts, electric or other utilities, sinks or other facilities are reserved to Landlord.

F. ACCESS TO PREMISES. Landlord, Agent and their respective employees and agents shall have the right to enter the Premises at all reasonable times during normal business hours and at any time in case of an emergency for the purpose of examining or inspecting the same, showing the same to prospective purchasers, mortgagees or tenants of the Building and making such alterations, repairs, improvements or additions or doing other work to the Premises or to the Building as Landlord may deem necessary or desirable. If representatives of Tenant shall not be present to open and permit entry into the Premises at any time when such entry is

 

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necessary or permitted hereunder, Landlord and Agent may enter by means of a master key or card (or forcibly in the event of an emergency) without liability to Tenant and without such entry constituting an eviction of Tenant or termination of this Lease.

22. SPRINKLER SYSTEM; LIFE SAFETY SYSTEM. If there now is or shall be installed in the Building a “sprinkler system” or “life safety system” and if such systems or any of their appliances shall be damaged or injured or not in proper working order by Tenant or its agents, servants, employees, invitees, licensees or visitors, Tenant shall forthwith restore the same to good working condition at its own expense; and if the Board of Fire Underwriters or Fire Insurance Exchange or any governmental bureau, department or official requires or recommends that any changes, modification, alterations or additional sprinkler heads or other equipment be made or supplied by reason of Tenant’s business, or the location of partitions, trade fixtures, or other contents in the Premises, or for any other reason attributable to Tenant, or if any such changes, modification, alterations, additional sprinkler heads or other equipment, becomes necessary to prevent the imposition of a penalty or charge against the full allowance for a sprinkler system or life safety system under the fire insurance rate as fixed by said Exchange, or by any fire insurance company, Tenant, shall, at Tenant’s sole cost and expense, promptly make and supply such changes, modifications, alterations, additional sprinkler heads or other equipment.

23. ENVIRONMENTAL CONSIDERATIONS.

A. For purposes of this Section 23, the following definitions shall apply:

(1) “ENVIRONMENTAL RELEASE”: The term Environmental Release shall mean any intentional or unintentional releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, disposing, abandoning, discarding or dumping of any Toxic Substance (hereinafter defined) from, on, into or about the land, water or air of the Premises, the Building, the Common Areas in the Building or the real property surrounding the Building.

(2) “TOXIC SUBSTANCE”: The term Toxic Substance shall mean a hazardous substance, hazardous waste, pollutant or contaminant, as such terms are now or hereafter defined in all applicable federal, state, and local laws, ordinances or regulations now or hereafter enacted or amended, and any and all other terms which are or may be used in any or all applicable laws now or hereafter enacted to define prohibited or regulated substances.

B. Tenant shall not use the Premises, the Building, the Common Areas in the Building or the real property surrounding the Building (or any part of the Premises, the Building, the Common Areas or real property) for the purpose of treating, producing, handling, transferring, processing, transporting, disposing, using or storing a Toxic Substance in violation of applicable laws.

C. Tenant and its agents, employees, contractors, licensees and invitees shall not cause or permit to exist, as the result of an action or omission by one or more of them, an Environmental Release. The occurrence of an Environmental Release, or a violation of any covenant, representation or warranty of this Section 23, shall be deemed an Event of Default under this Lease.

 

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D. Notwithstanding the foregoing, Tenant may use cleaning materials and office supplies in the ordinary course of Tenant’s business, in reasonable quantities and provided that such materials and supplies are used, stored and disposed of in compliance with any and all applicable laws, ordinances and regulations, as now or hereafter enacted.

E. Except as provided in Section 8.E., Tenant shall dispose, remove and/or arrange for the disposal and/or removal of its trash by a trash disposal company, approved by Landlord, which shall be operated in accordance with applicable laws, ordinances and regulations. Tenant and its agents, employees, contractors, licensees and invitees shall not place or permit the placement of any Toxic Substance in any waste receptacle located in the Premises, the Building, the Common Areas in the Building, the plumbing or sewer systems of the Building or the real property surrounding the Building.

F. Tenant shall comply with all applicable laws, ordinances and regulations of all governmental authorities, as now or hereafter enacted, including, without limitation, all laws, ordinances and regulations governing a Toxic Substance.

G. The covenants, representations and warranties provided in this Section 23 shall survive the expiration or earlier termination of this Lease.

H. Tenant shall pay, defend, indemnify, and hold harmless Landlord from and against any and all claims, losses, costs, damages liabilities and fines arising from or relating to Environmental Releases to the extent caused by the acts, negligence, misconduct or other fault of Tenant, its agents, employees, contractors, licensees, invitees or subtenants or failure of Tenant, or its agents employees, contractors, licensees, invitees or subtenants to comply with the provisions of this Section 23.

I. Landlord shall remove from or encapsulate within the Premises any Toxic Substances which exist in violation of applicable laws, provided that (i) the Toxic Substances were located within the Premises prior to the date on which Tenant took possession of the Premises, or were brought into the Premises by Landlord or its employees, contractors or licensees, and (ii) Tenant delivers to Landlord written notice of the existence of the Toxic Substances within forty-eight (48) hours of discovering such substances.

24. SUBSTITUTE PREMISES. Landlord, at its sole expense and upon at least sixty (60) days prior written notice, may require Tenant to move from the Premises to another suite of comparable size in order to permit Landlord to consolidate the Premises with other adjoining space leased or to be leased to another tenant in or coming into the Building. The failure of Tenant to relocate in accordance with this Section 24 shall constitute an Event of Default hereunder and Tenant shall be additionally liable to Landlord for all consequential damages suffered by Landlord on account thereof. In the event of any such relocation, Landlord will pay all the expenses of preparing and decorating the other suite so that the same will be substantially similar to the Premises. In addition, Landlord shall pay the reasonable expenses of moving Tenant’s furniture and equipment to the other suite. Occupancy of the other suite shall be under

 

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and pursuant to the terms of this Lease. Notwithstanding the foregoing, if at the time such relocation is required, there is, in Landlord’s sole opinion, not sufficient remaining time within the Term of this Lease to fully amortize Landlord’s cost of relocating Tenant, Landlord shall have the right to terminate this Lease upon sixty (60) days prior written notice to Tenant.

25. ESTOPPEL STATEMENT. Tenant shall, at any time and from time to time within ten (10) business days after written request by Landlord, execute, acknowledge and deliver to Landlord a statement in writing duly executed by Tenant (A) certifying that this Lease is in full force and effect without modification or amendment (or, if there have been any modifications and amendments, the nature thereof), (B) certifying the dates to which annual Minimum Rent and additional rent have been paid, and (C) either certifying that no default exists under this Lease or specifying each such default, it being the intention and agreement of Landlord and Tenant that if Tenant shall fail to respond within the aforesaid ten (10) day period, Tenant shall be deemed to have given such statement as above provided, that this Lease is in full force and effect, that no default in Landlord’s performance remains uncured, that the security deposit, if any, is as stated in this Lease and that not more than one (1) month’s rent has been paid in advance.

26. QUIET ENJOYMENT. Upon payment by Tenant of rent and upon the observance and performance by Tenant of all the terms, covenants, conditions, provisions and agreements of this Lease on Tenant’s part to be observed and performed, Tenant shall peaceably and quietly hold and enjoy the Premises for the Term of this Lease without hindrance or interruption by Landlord or by any person or persons lawfully claiming or holding by, through or under Landlord, subject, nevertheless, to the terms, covenants, conditions and provisions of this Lease, to all other agreements, conditions, restrictions and encumbrances of record and to all mortgages, installment sale agreements and underlying leases of record to which this Lease is, or shall become subject and subordinate.

27. BROKERS; AGENT. Tenant warrants to Landlord that Tenant dealt and negotiated solely and only with Agent (or Landlord) for this Lease and with no other broker, firm, company or person. Tenant (for good and valuable consideration) shall indemnify and hold Landlord and Agent harmless from and against any and all claims, suits, proceedings, damages, obligations, liabilities, counsel fees, costs, losses, expenses, orders and judgments imposed upon, incurred by or asserted against Landlord and/or Agent by reason of the falsity or error of the aforesaid warranty. It is expressly understood and agreed by Landlord and Tenant that Agent is acting as agent only, and shall not in any event be liable to either Landlord or Tenant for the fulfillment or non-fulfillment of any of the terms, covenants, conditions or provisions of this Lease, or for any action or proceeding taken by Landlord against Tenant or by Tenant against Landlord. Within three (3) business days after the full execution of the Lease, Landlord shall pay to PREIT-Rubin, Inc. a leasing commission in the amount of $155,146.00.

28. LANDLORD STATUS. Landlord’s obligations hereunder shall be binding upon Landlord only for a period of time that Landlord is in ownership of the Building; and, upon termination of that ownership, Tenant, except as to any obligations which have then matured, shall look solely to Landlord’s successor in interest in the Building for the satisfaction of each and every obligation of Landlord hereunder. Landlord shall have no personal liability under any of the terms, conditions or covenants of this Lease and Tenant shall look solely to the equity of the Landlord in the Building of which the Premises form a part and no other assets for the satisfaction of any claim, remedy or cause of action accruing to Tenant.

 

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29. NOTICES. Wherever in this Lease it shall be required or permitted that notice or demand be given or served by either party to this Lease to or on the other party, such notice or demand shall be in writing and shall be given by either registered or certified mail (postage prepaid), or by courier guaranteeing overnight delivery or by personal delivery addressed in accordance with the notice addresses specified on page one (1) of this Lease. Additionally, all notices shall be deemed effectively given if sent by Landlord and Tenant’s respective counsel. Each notice shall be deemed to have been given to or served upon the party to which addressed on the date the same is received or rejected if sent in accordance herewith. Each party may change its address to which any notice shall be delivered or sent by giving written notice of such change to the other party hereto in the manner herein provided. Notices by Landlord may also be sent by Agent on Landlord’s behalf.

30. MISCELLANEOUS PROVISIONS.

A. FORCE MAJEURE. Landlord shall be excused for the period of any delay in the performance of any obligations hereunder when prevented from so doing by cause or causes beyond Landlord’s control which shall include, without limitation, all labor disputes, inability to obtain any material or services, civil commotion or Acts of God. With the exception of the obligation to pay any sum due under this Lease, including without limitation Tenant’s obligation to pay Rent, Tenant shall be excused for the period of any delay in the performance of any obligations hereunder when prevented from so doing by cause or causes beyond Tenant’s control, which shall include, without limitation, all labor disputes, inability to obtain any material or services, civil commotion or Acts of God, provided that Tenant has given written notice of the delay to Landlord within forty-eight (48) hours of the date on which Tenant first acquires knowledge of the delay.

B. COMMON AREAS. All parking areas, walkways, vertical transportation, stairs, driveways, alleys, public corridors and fire escapes, and other areas, facilities and improvements as may be provided by Landlord from time to time for the general use in common of Tenant and other tenants, which may be extended to their employees, agents, invitees and licensees, shall at all times be subject to the exclusive control and management of Landlord, and Landlord shall have the right from time to time to establish, modify and enforce reasonable rules and regulations with respect to all such areas, facilities and improvements, and to change the location of or otherwise alter or modify any or all of the aforementioned Common Areas, facilities, and improvements so long as Landlord continues to provide adequate passageways to the Premises.

C. RULES AND REGULATIONS. Tenant shall observe and comply with the Rules and Regulations annexed hereto as EXHIBIT “E” and made a part hereof. All such Rules and Regulations shall apply to Tenant and its invitees and subtenants.

D. CORPORATE AUTHORITY. If Tenant is a corporation, each individual executing this Lease on behalf of that corporation represents and warrants that he or she is duly authorized to execute and deliver this Lease on behalf of the corporation in accordance with the duly adopted resolution of the Board of Directors of the corporation, and that this Lease is binding upon the corporation in accordance with its terms.

 

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E. NO RECORDATION. This Lease shall not be filed of record; however, upon request of Landlord, a memorandum of the Lease in compliance with law shall be executed by Landlord and Tenant and recorded, with recordation costs paid by Landlord.

F. SUCCESSORS. The respective rights and obligations provided in this Lease shall bind and shall inure to the benefit of the parties