Lease, dated as of February 11, 2019, between the Registrant and Brandywine Cira, L.P
Tenant: Cabaletta Bio, Inc.
Premises: Cira Centre, Suite 600
THIS LEASE (Lease) is entered into as of February 11, 2019 between BRANDYWINE CIRA, L.P., a Pennsylvania limited partnership (Landlord), and CABALETTA BIO, INC., a Delaware corporation (Tenant).
In consideration of the mutual covenants stated below, and intending to be legally bound, Landlord and Tenant covenant and agree as follows:
1. KEY DEFINED TERMS.
(a) Abatement Period means the period that begins on the Commencement Date and ends on the day immediately prior to the three (3)-month anniversary of the Commencement Date. Nothing contained herein may be deemed to diminish or relieve Tenant of its obligation to pay in accordance with the terms of this Lease all sums owed by Tenant to Landlord during the Abatement Period other than Fixed Rent.
(b) Additional Rent means all rents, costs, and expenses other than Fixed Rent that Tenant is obligated to pay Landlord pursuant to this Lease.
(c) Broker means CBRE, Inc.
(d) Building means the building known as Cira Centre located at 2929 Arch Street, Philadelphia, Pennsylvania 19104 containing approximately 730,187 rentable square feet.
(e) Business Hours means the hours of 8:00 a.m. to 6:00 p.m. on weekdays, and 8:00 a.m. to 1:00 p.m. on Saturdays, excluding Building holidays.
(f) Commencement Date means the date that is the earlier of: (i) the date on which Tenant first conducts any business in all or any portion of the Premises; or (ii) Substantial Completion (as defined in Exhibit C).
(g) Common Areas means, to the extent applicable, the lobby, parking facilities, passenger elevators, rooftop terrace, fitness or health center, plaza and sidewalk areas, multi-tenanted floor restrooms, and other similar areas of unrestricted access at the Project or designated for the benefit of Building tenants, and the areas on multi-tenant floors in the Building devoted to corridors, elevator lobbies, and other similar facilities serving the Premises.
(h) Expiration Date means the last day of the Term, or such earlier date of termination of this Lease pursuant to the terms hereof.
(i) Fixed Rent means fixed rent in the amounts set forth below:
|FIXED RENT PER |
|ANNUALIZED FIXED |
Commencement Date - end of Abatement Period
Fixed Rent Start Date - end of Rent Period 1
Rent Period 2
Rent Period 3 - End of Initial Term
(j) Fixed Rent Start Date means the day immediately following the end of the Abatement Period.
(k) Initial Term means the period commencing on the Commencement Date, and ending at 11:59 p.m. on: (i) if the Fixed Rent Start Date is the first day of a calendar month, the day immediately prior to the thirty-six (36)-month anniversary of the Fixed Rent Start Date; or (ii) if the Fixed Rent Start Date is not the first day of a calendar month, the last day of the calendar month containing the thirty-six (36)-month anniversary of the Fixed Rent Start Date.
(l) Laws means federal, state, county, and local governmental and municipal laws, statutes, ordinances, rules, regulations, codes, decrees, orders, and other such requirements, and decisions by courts in cases where such decisions are considered binding precedents in the state or commonwealth in which the Premises are located (State), and decisions of federal courts applying the laws of the State, including without limitation Title III of the Americans with Disabilities Act of 1990,42 U.S.C. §12181 et seq. and its regulations.
(m) Premises means the space presently known as Suite 600 in the Building, as shown on Exhibit A attached hereto, which is deemed to contain 7,672 rentable square feet. Landlord represents that, to the best of its knowledge, the Premises consist of 7,672 rentable square feet.
(n) Project means the Building, together with the parcel of land owned by Landlord upon which the Building is located, and all Common Areas.
(o) Rent means Fixed Rent and Additional Rent. Landlord may apply payments received from Tenant to any obligations of Tenant then due and owing without regard to any contrary Tenant instructions or requests. Additional Rent shall be paid by Tenant in the same manner as Fixed Rent, without setoff, deduction, or counterclaim (except as otherwise provided herein).
(p) Rent Period means, with respect to the first Rent Period, the period that begins on the Fixed Rent Start Date and ends on the last day of the calendar month preceding the month in which the first anniversary of the Fixed Rent Start Date occurs; thereafter each succeeding Rent Period shall commence on the day following the end of the preceding Rent Period, and shall extend for twelve (12) consecutive months.
(q) Security Deposit means $21,737.33.
(r) Tenants NAICS Code means Tenants six (6)-digit North American Industry Classification number under the North American Industry Classification System as promulgated by the Executive Office of the President, Office of Management and Budget, which is 325412.
(s) Term means the Initial Term together with any extension of the term of this Lease agreed to by the parties in writing.
2. PREMISES. Landlord leases to Tenant, and Tenant leases from Landlord, the Premises for the Term subject to the terms and conditions of this Lease. Except for the representations and warranties of Landlord as set forth in this Lease, Tenant accepts the Premises in their AS IS, WHERE IS, WITH ALL FAULTS condition, except that: (i) Landlord shall complete the Leasehold Improvements pursuant to Exhibit C attached hereto, and deliver the Premises to Tenant in compliance with all applicable Laws, and with all HVAC, mechanical, plumbing, and electrical systems serving the Premises in good working order; (ii) Landlord shall remain responsible for any latent defects provided notice of such defect is provided to Landlord within twelve (12) months after the Commencement Date; and (iii) nothing in this Section shall release Landlord from its repair and other obligations under this Lease.
3. TERM. The Term shall commence on the Commencement Date. The terms and provisions of this Lease are binding on the parties upon Tenants and Landlords execution of this Lease notwithstanding a later Commencement Date for the Term. The rentable area of the Premises and the Building on the Commencement Date shall be deemed to be as stated in Section 1. By the Confirmation of Lease Term substantially in the form of Exhibit B attached hereto (COLT). Landlord shall notify Tenant of the Commencement Date and all other matters stated therein. The COLT shall be conclusive and binding on Tenant as to all matters set forth therein unless, within thirty (30) days following delivery of the COLT to Tenant, Tenant contests any of the matters contained therein by notifying Landlord in writing of Tenants objections.
4. FIXED RENT: SECURITY DEPOSIT: LATE FEE.
(a) Tenant covenants and agrees to pay to Landlord during the Term, without notice, demand, setoff, deduction, or counterclaim (except as otherwise provided herein), Fixed Rent in the amounts set forth in Section l(i). The Monthly Installment of Fixed Rent, the monthly amount of Estimated Operating Expenses as set forth in Section 5, and any estimated amount of utilities as set forth in Section 6, shall be payable to Landlord in advance on or before the first day of each month of the Term. If the Fixed Rent Start Date is not the first day of a calendar month, then the Fixed Rent due for the partial month commencing on the Fixed Rent Start Date shall be prorated based on the number of days in such month. All Rent payments shall be made by electronic funds transfer as follows (or as otherwise directed in writing by Landlord to Tenant from time to time): (i) ACH debit of funds, provided Tenant shall first complete Landlords then-current forms authorizing Landlord to automatically debit Tenants bank account; or (ii) ACH credit of immediately available funds to an account designated by Landlord. ACH means Automated Clearing House network or similar system designated by Landlord. All Rent payments shall include the Building number and the Lease number, which numbers will be provided to Tenant in the COLT.
(b) Contemporaneously with Tenants execution and delivery of this Lease, Tenant shall pay to Landlord the Security Deposit. No interest shall be paid to Tenant on the Security Deposit, and Landlord shall have the right to commingle the Security Deposit with other funds of Landlord. If Tenant fails to perform any of its obligations under this Lease that are not cured within the applicable notice and/or cure periods provided herein, Landlord may use, apply or retain the whole or any part of the Security Deposit for the payment of: (A) any rent or other sums that Tenant has not paid when due; (B) any sum expended by Landlord in accordance with the provisions of this Lease; and/or (C) any sum that Landlord expends or is required to expend in connection with an Event of Default (as defined in Section 17). Landlords use of the Security Deposit shall not prevent Landlord from exercising any other remedy available to Landlord under this Lease, at law or in equity and shall not operate as either liquidated damages or as a limitation on any recovery to which Landlord may otherwise be entitled. If any portion of the Security Deposit is used, applied, or retained by Landlord, Tenant shall, within ten (10) days after the written demand therefor, deposit cash with Landlord in an amount sufficient to restore the Security Deposit to its original amount. Landlord shall return the Security Deposit or the balance thereof (as applicable) to Tenant within one (1) month after the later of the Expiration Date, Tenants surrender of possession of the Premises to Landlord in the condition required under this Lease, and Tenants payment of all outstanding Rent. Upon the return of the Security Deposit or the balance thereof (as applicable) to Tenant, Landlord shall be completely relieved of liability with respect to the Security Deposit. If the originally named Tenant has assigned this Lease, Landlord may return the Security Deposit or the balance thereof (as applicable) to the current Tenant unless Landlord receives reasonably satisfactory evidence of the originally named Tenants right to receive the Security Deposit. If Landlord conveys ownership of the Building, Landlord shall deliver the Security Deposit to the transferee, and (provided that such transferee assumes all of Landlords obligations under this Lease) Landlord shall thereupon be released from all liability for the return of such Security Deposit and Tenant shall look solely to the transferee for the return of the Security Deposit.
(c) If Landlord does not receive the full payment from Tenant of any Rent when due under this Lease (without regard to any notice and/or cure period to which Tenant might be entitled), Tenant shall also pay to Landlord as Additional Rent a late fee in the amount of five percent (5%) of such overdue amount. Notwithstanding the foregoing, Landlord shall waive the above-referenced late fee two (2) times during any twelve (12) consecutive months of the Term provided Tenant makes the required payment within five (5) days after receipt of notice of such late payment. With respect to any Rent payment (whether it be by check, ACH/wire, or other method) that is returned unpaid for any reason, Landlord shall have the right to assess a reasonable fee to Tenant as Additional Rent, which fee is currently $40.00 per returned payment.
5. OPERATING EXPENSES.
(a) Certain Definitions.
(i) Janitorial Expenses means all reasonable costs associated with trash and garbage removal, recycling, cleaning, and sanitizing the Building, and the items of work set forth in Exhibit D attached hereto.
(ii) Operating Expenses means collectively Project Expenses and Taxes.
(iii) Project Expenses means all reasonable costs and expenses paid, incurred, or accrued by Landlord in connection with the maintenance, operation, repair, and replacement of the Project including, without limitation: a management fee not to exceed three percent (3%) of gross rents and revenues from the Project; all costs associated with the removal of snow and ice from the Project; property management office rent; conference room and fitness center costs to the extent such amenities are made available to Tenant at no charge; transportation program costs, such as a shuttle made available to Tenant at no charge; security measures; Janitorial Expenses; Project Utility Costs (as defined in Section 6 below); capital expenditures, repairs, and replacements, but only to the extent of the amortized costs of such capital item over the useful life of the improvement, in accordance with generally accepted accounting principles, provided such capital items are: (I) incurred to comply with Laws that are amended, become effective, or are interpreted differently after the execution of this Lease, or insurance or security requirements; (II) are intended to have cost-saving benefits over the Term of this Lease or reduce the rate of increase in Operating Expenses; or (III) is a reasonably prudent measure to improve the safe operation of the Project, or improve or maintain the access to, quality, appearance or integrity of, the Building; all insurance premiums and deductibles paid or payable by Landlord with respect to the Project; and the cost of providing those services required to be furnished by Landlord under this Lease. Notwithstanding the foregoing, Project Expenses shall not include any of the following: (A) repairs or other work occasioned by fire, windstorm, or other insured casualty or by the exercise of the right of eminent domain to the extent Landlord actually receives insurance proceeds or condemnation awards therefor (or which would have been received had Landlord maintained the insurance required hereunder); (B) leasing commissions, accountants, consultants, auditors or attorneys fees, costs and disbursements and other expenses incurred in connection with negotiations or disputes with other tenants or prospective tenants or other occupants, or associated with the enforcement of any other leases or the defense of Landlords title to or interest in the real property or any part thereof; (C) costs incurred by Landlord in connection with the original construction of the Building and related facilities; (D) costs (including permit, license, and inspection fees) incurred in renovating or otherwise improving or decorating, painting, or redecorating leased space for other tenants or other occupants or vacant space; (E) interest on debt or amortization payments on any mortgage or deeds of trust or any other borrowings and any ground rent; (F) any compensation paid to clerks, attendants or other persons in commercial concessions operated by Landlord; (G) any fines or fees for Landlords failure to comply with Laws; (H) legal, accounting, and other expenses related to Landlords financing, refinancing, mortgaging, or selling the Building or the Project; (I) any increase in an insurance premium caused by the non-general office use, occupancy, or act of another tenant; (J) costs for sculpture, decorations, painting, or other objects of art in excess of amounts typically spent for such items in office buildings of comparable quality in the competitive area of the Building; (K) cost of any political, charitable, or civic contribution or donation; (L) reserves for repairs, maintenance, and replacements; (M) Taxes; (N) cost of utilities directly metered or submetered to Building tenants and paid separately by such tenants; (O) fines, interest, penalties, or liens arising by reason of Landlords failure to pay any Project Expenses when due, except that Project Expenses shall include interest or similar charges if the collecting authority permits such Project Expenses to be paid in installments with interest thereon, such payments are not considered overdue by such
authority and Landlord pays the Project Expenses in such installments; (P) costs and expenses associated with hazardous waste or hazardous substances not generated or brought to the Project by Tenant or its agents including but not limited to the cleanup of such hazardous waste or hazardous substances and the costs of any litigation (including, but not limited to reasonable attorneys fees) arising out of the discovery of such hazardous waste or hazardous substances; (Q) the portion of any wages, salaries, fees, or fringe benefits paid to personnel above the level of regional property manager; (R) costs of extraordinary services provided to other tenants of the Building or services to which Tenant is not entitled (including, without limitation, costs specially billed to and paid by specific tenants); (S) all costs relating to activities for the solicitation and execution of leases of space in the Building, including legal fees, real estate brokers commissions, expenses, fees, and advertising, moving expenses, design fees, rental concessions, rental credits, tenant improvement allowances, lease assumptions or any other cost and expenses incurred in the connection with the leasing of any space in the Building; (T) costs representing an amount paid to an affiliate of Landlord (exclusive of any management fee permitted under the Operating Expense inclusions) to the extent in excess of market rates for comparable services if rendered by unrelated third parties; (U) costs arising from Landlords default under this Lease or any other lease for space in the Building; (V) costs of selling the Project or any portion thereof or interest therein; (W) costs or expenses arising from the gross negligence of Landlord or its agents or employees; (X) costs incurred to remedy, repair, or otherwise correct violations of Laws that exist on the Commencement Date; (Y) ground rents or rentals payable by Landlord pursuant to any over-lease; (Z) repairs for which Landlord is covered by a manufacturers, materialmans, vendors or contractors warranty; (AA) ground lease payments; (BB) any administrative or management fees, except as otherwise set forth above; (CC) costs to maintain, repair or replace the Building structure; (DD) any expense that, pursuant to generally accepted accounting principles, is not properly characterized as an operating expense; and (EE) costs incurred in operating, maintaining, or owning any conference center or fitness center in the Project that is not made available to Tenant at no charge.
(iv) Taxes means all taxes, assessments, and other governmental charges, whether general or special, ordinary or extraordinary, foreseen or unforeseen, including without limitation business improvement district charges, improvement contributions paid to business improvement districts or similar organizations, and special assessments for public improvements or traffic districts, that are levied or assessed against, or with respect to the ownership of, all or any portion of the Project during the Term or, if levied or assessed prior to the Term, are properly allocable to the Term, business property operating license charges, and real estate tax appeal expenditures incurred by Landlord. Taxes shall not include: (i) any inheritance, estate, succession, transfer, gift, franchise, corporation, net income or profit tax or capital levy that is or may be imposed upon Landlord; or (ii) any transfer tax or recording charge resulting from a transfer of the Building or the Project; provided, however, if at any time during the Term the method of taxation prevailing at the commencement of the Term shall be altered such that in lieu of or as a substitute in whole or in part for any Taxes now levied, assessed, or imposed on real estate there shall be levied, assessed, or imposed: (A) a tax on the rents received from such real estate; or (B) a license fee measured by the rents receivable by Landlord from the Premises or any portion thereof; or (C) a tax or license fee imposed upon the Premises or any portion thereof, then the same shall be included in Taxes. Tenant may not file or participate in any Tax appeals for any tax lot in the Project. Further, Taxes shall not include any sales, use, use and occupancy, transaction privilege, or other excise tax that may at any time be levied or
imposed upon Tenant, or measured by any amount payable by Tenant under this Lease, whether such tax exists on the date of this Lease or is adopted hereafter (collectively, Other Taxes), including without limitation the Philadelphia use and occupancy tax. Tenant shall pay all Other Taxes monthly or otherwise when due, whether collected by Landlord or collected directly by the applicable governmental agency; if applicable Law requires Landlord to collect any Other Taxes, such Other Taxes shall be payable to Landlord as Additional Rent.
(v) Tenants Share means the rentable square footage of the Premises divided by the rentable square footage of the Building on the date of calculation, which on the date of this Lease is stipulated to be 1.05%.
(b) Commencing on the Commencement Date and continuing thereafter during the Term, Tenant shall pay to Landlord in advance on a monthly basis, payable pursuant to Section 5(c) below, Tenants Share of Operating Expenses. If the Building is operated as part of a complex of buildings or in conjunction with other buildings or parcels of land, then Landlord may prorate the common expenses and costs with respect to each such building or parcel of land in such manner as Landlord, in its sole but reasonable judgment, shall determine. Landlord shall calculate Operating Expenses using generally accepted accounting principles, and may allocate certain categories of Operating Expenses to the applicable tenants on a commercially reasonable basis. For purposes of calculating Tenants Share of Controllable Project Expenses (as defined below), the total Controllable Project Expenses for each year subsequent to the first full calendar year of the Term (First Lease Year) shall not exceed the applicable Cap Amount (as defined below) for the applicable subsequent calendar year. The Cap Amount for each subsequent year shall be equal to the Controllable Project Expenses for the First Lease Year, increased on a compounded basis by five percent (5%) annually (that is, the Cap Amount for the first subsequent year shall be equal to 1.05 multiplied by the First Lease Year Controllable Project Expenses, the Cap Amount for the second subsequent year shall be equal to (1.05 x 1.05) multiplied by the First Lease Year Controllable Project Expenses and so on, throughout the Term). The cap on Controllable Project Expenses set forth herein shall also be calculated on a cumulative basis so that if in any year subsequent to the First Lease Year, the Controllable Project Expenses exceed the applicable Cap Amount (Deferred Amount), the Deferred Amount(s) shall be carried over to the following year(s) and will be charged to Tenant in the following year(s) to the extent Controllable Project Expenses are less than the Cap Amount for the year(s) in question. Controllable Project Expenses means all Project Expenses that are within the reasonable control of Landlord, such as landscaping and regular common area maintenance, but specifically excluding utility costs, Taxes, snow and ice removal, insurance, costs resulting from a Force Majeure Event, wage increases due to collective bargaining agreements and/or increases in the minimum wage, management fees, and costs resulting from a change in Law occurring after the date of this Lease.
(c) For each calendar year (or portion thereof) for which Tenant has an obligation to pay any Operating Expenses, Landlord shall send to Tenant a statement of the monthly amount of projected Operating Expenses due from Tenant for such calendar year (Estimated Operating Expenses), and Tenant shall pay to Landlord such monthly amount of Estimated Operating Expenses as provided in Section 5(b). without further notice, demand, setoff, deduction, or counterclaim (except as otherwise provided herein). As soon as administratively available after each calendar year (but in any event Landlord shall use
commercially reasonable efforts to provide such statement within 180 days after each calendar year), Landlord shall send to Tenant a reconciliation statement of the actual Operating Expenses for the prior calendar year including Tenants Share thereof and an itemized list of costs (Reconciliation Statement). If the amount actually paid by Tenant as Estimated Operating Expenses exceeds the amount due per the Reconciliation Statement, Tenant shall receive a credit in an amount equal to the overpayment, which credit shall be applied towards future Rent until fully credited. If the credit exceeds the aggregate future Rent owed by Tenant (or if the Term has expired), and there is no Event of Default, Landlord shall pay the excess amount to Tenant within thirty (30) days after delivery of the Reconciliation Statement. If Landlord has undercharged Tenant, then Landlord shall either send Tenant an invoice setting forth the additional amount due or indicate the amount due as part of the Reconciliation Statement, which amount shall be paid in full by Tenant within thirty (30) days after receipt of such invoice. Notwithstanding the foregoing, if Landlord fails to provide a Reconciliation Statement for any final expense within two (2) years after such expense was incurred and billed to Landlord, Landlord shall be deemed to have waived its right to collect any underpayments by Tenant of such amounts.
(d) If, during the Term, less than ninety-five percent (95%) of the rentable area of the Building is or was occupied by tenants, Project Expenses shall be deemed for such year to be an amount equal to the costs that would have been incurred had the occupancy of the Building been at least ninety-five percent (95%) throughout such year, as reasonably determined by Landlord and taking into account that certain expenses fluctuate with the Buildings occupancy level (e.g., Janitorial Expenses) and certain expenses do not so fluctuate (e.g., landscaping). In addition, if Landlord is not obligated or otherwise does not offer to furnish an item or a service to a particular tenant or portion of the Building (e.g., if a tenant separately contracts with an office cleaning firm to clean such tenants premises) and the cost of such item or service would otherwise be included in Project Expenses, Landlord shall equitably adjust the Project Expenses so the cost of the item or service is shared only by tenants actually receiving such item or service. All payment calculations under this Section shall be prorated for any partial calendar years during the Term and all calculations shall be based upon Project Expenses as grossed-up in accordance with the terms of this Lease. Tenants obligations under this Section shall survive the Expiration Date.
(e) If Landlord or any affiliate of Landlord has elected to qualify as a real estate investment trust (REIT), any service required or permitted to be performed by Landlord pursuant to this Lease, the charge or cost of which may be treated as impermissible tenant service income under the laws governing a REIT, may be performed by an independent contractor of Landlord, Landlords property manager, or a taxable REIT subsidiary that is affiliated with either Landlord or Landlords property manager (each, a Service Provider), so long as the rates charged by the Service Provider are substantially similar to other independent contractors rates charged in the Philadelphia, Pennsylvania area. If Tenant is subject to a charge under this Lease for any such service, then at Landlords direction Tenant shall pay the charge for such service either to Landlord for further payment to the Service Provider or directly to the Service Provider and, in either case: (a) Landlord shall credit such payment against any charge for such service made by Landlord to Tenant under this Lease; and (b) Tenants payment of the Service Provider shall not relieve Landlord from any obligation under this Lease concerning the provisions of such services.
(f) Provided there is no outstanding monetary default by Tenant under this Lease (that continues beyond the expiration of all applicable notice and/or cure periods), Tenant shall have the right, at its sole cost and expense, to cause Landlords records related to a Reconciliation Statement to be audited provided: (i) Tenant provides notice of its intent to audit such Reconciliation Statement within four (4) months after receipt of the Reconciliation Statement; (ii) the audit is performed by Tenants accountant or a certified public accountant that has not been retained on a contingency basis or other basis where its compensation relates to the cost savings of Tenant; (iii) any such audit may not occur more frequently than once during each twelve (12)-month period of the Term, nor apply to any year prior to the year of the then-current Reconciliation Statement being reviewed; (iv) the audit is completed within two (2) months after the date that Landlord makes all of the necessary and applicable records available to Tenant or Tenants auditor; (v) the contents of Landlords records shall be kept confidential by Tenant, its auditor, and its other professional advisors, other than as required by applicable Law, or in connection with any litigation or other proceeding arising in connection with this Lease, and if requested by Landlord, Tenant and its auditor shall execute Landlords standard confidentiality agreement (which shall be in a form reasonably acceptable to Tenant) as a condition to Tenants audit rights under this paragraph; and (vi) if Tenants accountant or Tenants auditor determines that an overpayment is due Tenant, Tenants auditor shall produce a detailed report addressed to both Landlord and Tenant, which report shall be delivered within thirty (30) days after Tenants auditors completion of the audit. During completion of Tenants audit, Tenant shall nonetheless timely pay all of Tenants Share of Operating Expenses without setoff or deduction. If Tenants audit report discloses any discrepancy, Landlord and Tenant shall use good faith efforts to resolve the dispute. If the parties are unable to reach agreement within twenty (20) days after Landlords receipt of the audit report, Tenant shall have the right to refer the matter to a mutually acceptable independent certified public accountant, who shall work in good faith with Landlord and Tenant to resolve the discrepancy; provided if Tenant does not do so within ten (10) days after the expiration of such twenty (20)-day period, Landlords calculations and the Reconciliation Statement at issue shall be deemed final and accepted by Tenant. The fees and costs of such independent accountant to which such dispute is referred shall be borne by the unsuccessful party and shall be shared pro rata to the extent each party is unsuccessful as determined by such independent certified public accountant, whose decision shall be final and binding. Within thirty (30) days after resolution of the dispute, whether by agreement of the parties or a final decision of an independent accountant, Landlord shall pay or credit to Tenant, or Tenant shall pay to Landlord, as the case may be, all unpaid Operating Expenses due and owing. Notwithstanding anything to the contrary contained herein, in the event, by agreement or as a result of the findings of such independent accountant or as a result of a final judicial determination, it is determined that the actual Operating Expenses exceeded those claimed by Landlord by more than five percent (5%), then Landlord shall reimburse Tenant within thirty (30) days after receipt of an invoice with reasonable supporting documentation for the reasonable, third-party costs of Tenants audit, not to exceed $2,500.
(a) Commencing on the Commencement Date, and continuing throughout the Term, Tenant shall pay for utility services as follows without setoff, deduction, or counterclaim (except as otherwise provided herein): (i) Tenant shall pay directly to the applicable utility service provider for any utilities that are separately metered (not submetered) to the Premises;
(ii) Tenant shall pay Landlord for any utilities serving the Premises that are separately submetered based upon Tenants submetered usage; and (iii) Tenant shall pay Landlord for Tenants Share of Project Utility Costs, as set forth in Section 5 above. Project Utility Costs means the total cost for all utilities serving the Project, excluding the costs of utilities that are directly metered or submetered to Building tenants or paid separately by such tenants. Notwithstanding anything to the contrary in this Lease, Landlord shall have the right, upon reasonable advance written notice to Tenant, to install meters, submeters, or other energy-reducing systems in the Premises at any time to measure any or all utilities serving the Premises, at no cost to Tenant. In exercising such right, Landlord shall use its commercially reasonable efforts to avoid interfering with Tenants use and occupancy of the Premises. For those utilities set forth in subsection (ii) above, Landlord shall invoice Tenant for such utilities as Additional Rent (payable within thirty (30) days after receipt of an invoice therefor). For those utilities set forth in subsection (ii) above, Landlord shall have the right to either invoice Tenant for such utilities as Additional Rent (payable within thirty (30) days after receipt of an invoice therefor), or together with Operating Expenses. Landlord shall have the right to estimate the utility charge, which estimated amount shall be payable to Landlord within thirty (30) days after receipt of an invoice therefor and may be included along with the invoice for Project Expenses, provided Landlord shall be required to reconcile on an annual basis based on utility invoices received for such period. The cost of utilities payable by Tenant under this Section shall include all applicable taxes and Landlords then-current reasonable charges for reading the applicable meters, provided Landlord shall have the right to engage a third party to read the submeters, and Tenant shall reimburse Landlord for both the utilities consumed as evidenced by the meters plus the reasonable costs for reading the meters within thirty (30) days after receipt of an invoice therefor. Tenant shall pay such rates as Landlord may establish from time to time, which shall not be in excess of any applicable rates chargeable by Law, or in excess of the general service rate or other such rate that would apply to Tenants consumption if charged by the utility or municipality serving the Building or general area in which the Building is located. If Tenant fails to pay timely any direct-metered utility charges from the applicable utility provider, Landlord shall have the right but not the obligation to pay such charges on Tenants behalf and bill Tenant for such costs plus the Administrative Fee (as defined in Section 17), which amount shall be payable to Landlord as Additional Rent within thirty (30) days after receipt of an invoice therefor. Tenant shall at all times comply with the rules, regulations, terms, policies, and conditions applicable to the service, equipment, wiring, and requirements of the utility supplying electricity to the Building.
(b) For any separately metered utilities, Landlord is hereby authorized to request and obtain, on behalf of Tenant, Tenants utility consumption data from the applicable utility provider for informational purposes and to enable Landlord to obtain full building Energy Star scoring for the Building. Landlord shall have the right, upon reasonable advance written notice to Tenant (except in the case of an emergency) to shut down the Building systems (including electricity and HVAC systems) for required maintenance, safety inspections, any other commercially acceptable reason, including without limitation in cases of emergency. In exercising such right, Landlord shall use its commercially reasonable efforts to avoid materially interfering with Tenants use and occupancy of the Premises. Landlord shall not be liable for any interruption in providing any utility that Landlord is obligated to provide under this Lease, unless such interruption or delay: (i) renders the Premises or any material portion thereof untenantable for the normal conduct of Tenants business at the Premises, and Tenant has ceased
using such untenantable portion, provided Tenant shall first endeavor to use any generator that serves the Premises or of which Tenant has the beneficial use; (ii) results from Landlords negligence or willful misconduct; and (iii) extends for a period longer than five (5) consecutive days, in which case, Tenants obligation to pay Rent shall be abated with respect to the untenantable portion of the Premises that Tenant has ceased using for the period beginning on the 6th consecutive day after such conditions are met and ending on the earlier of: (A) the date Tenant recommences using the Premises or the applicable portion thereof; or (B) the date on which the service(s) is substantially restored. The rental abatement described above shall be Tenants sole remedy in the event of a utility interruption, and Tenant hereby waives any other rights against Landlord in connection therewith. Landlord shall have the right to change the utility providers to the Project at any time, and all providers selected by Landlord must provide service at competitive market prices. In the event of a casualty or condemnation affecting the Building and/or the Premises, the terms of Sections 14 and 15, respectively, shall control over the provisions of this Section.
(c) If Landlord reasonably determines that: (i) Tenant exceeds the design conditions for the heating, ventilation, and air conditioning (HVAC) system serving the Premises, introduces into the Premises equipment that overloads such system, or causes such system to not adequately perform its proper functions; or (ii) the heavy concentration of personnel, motors, machines, or equipment used in the Premises, including telephone and computer equipment, or any other condition in the Premises caused by Tenant (for example, more than one shift per day or twenty-four (24)-hour use of the Premises), adversely affects the temperature or humidity otherwise maintained by such system, then Landlord shall notify Tenant in writing and Tenant shall have thirty (30) days to remedy the situation to Landlords reasonable satisfaction (or such longer period as is reasonably required to remedy the situation provided Tenant promptly commences and diligently continues to effectuate a remedy). If Tenant fails to timely remedy the situation to Landlords reasonable satisfaction, Landlord shall have the right to install one or more supplemental air conditioning units in the Premises with the reasonable cost thereof, including the cost of installation, operation and maintenance, being payable by Tenant to Landlord within thirty (30) days after Landlords written demand. Tenant shall not change or adjust any closed or sealed thermostat or other element of the HVAC system serving the Premises without Landlords express prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Landlord may install and operate meters or any other reasonable system for monitoring or estimating any services or utilities used by Tenant in excess of those required to be provided by Landlord (including a system for Landlords engineer reasonably to estimate any such excess usage). If such system indicates such excess services or utilities, Tenant shall pay Landlords reasonable charges for installing and operating such system and any supplementary air conditioning, ventilation, heat, electrical, or other systems or equipment (or adjustments or modifications to the existing Building systems and equipment), and Landlords reasonable charges for such amount of excess services or utilities used by Tenant. All Tenants Supplemental HVAC (as defined in Section 11(a) below) shall be separately metered to the Premises at Tenants cost, and Tenant shall be solely responsible for all electricity registered by, and the maintenance and replacement of, such meters. Landlord has no obligation to keep cool any of Tenants information technology equipment that is placed together in one room, on a rack, or in any similar manner (IT Equipment), and Tenant waives any claim against Landlord in connection with Tenants IT Equipment. Landlord shall have the option to require that the computer room and/or information technology closet in the Premises shall be
separately submetered at Tenants expense, and Tenant shall pay Landlord for all electricity registered in such submeter. Within one (1) month after written request, Tenant shall provide to Landlord electrical load information reasonably requested by Landlord with respect to any computer room and/or information technology closet in the Premises.
7. LANDLORD SERVICES.
(a) Subject to Section 5 and Section 6, Landlord shall provide the following to the Premises during the Term: (i) HVAC service in the respective seasons during Business Hours; provided HVAC service to the Premises on Saturdays will be provided only upon Tenants prior request to Landlord received no later than noon on the preceding business day; (ii) electricity for lighting and standard office equipment for comparable buildings in the market in which the Project is located; (iii) water, sewer, and, to the extent applicable to the Building, gas, oil, and steam service; and (iv) cleaning services meeting the minimum specifications set forth in Exhibit D attached hereto. Tenant, at Tenants expense, shall make arrangements with the applicable utility companies and public bodies to provide, in Tenants name, telephone, cable, and any other utility service not provided by Landlord that Tenant desires at the Premises.
(b) Landlord shall not be obligated to furnish any services, supplies, or utilities other than as set forth in this Lease; provided, however, upon Tenants prior request sent in accordance with Section 25(p) below, Landlord may furnish additional services, supplies, or utilities, in which case Tenant shall pay to Landlord, within thirty (30) days after demand, Landlords then-current actual charge for such additional services, supplies, or utilities, or Tenants pro rata share thereof, if applicable, as reasonably determined by Landlord. Landlords current rate for HVAC service outside of Business Hours requested with at least twenty (24) hours prior notice (or by noon for weekend service) is $10.00 per hour, per zone, with a two (2)-hour minimum if the service does not commence immediately following the end of a days Business Hours.
8. USE: SIGNS: COMMON AREAS.
(a) Tenant shall use the Premises for general office use (non-medical) befitting a class A office building and storage incidental thereto, and for no other purpose (Permitted Use). Tenants use of the Premises for the Permitted Use shall be subject to all applicable Laws, and to all reasonable requirements of the insurers of the Building. Tenant represents and warrants to Landlord, for informational purposes only, that Tenants current NAICS Code is set forth in Section 1 hereof, provided the foregoing shall not be construed in any manner as a restriction on the Permitted Use. Landlord represents and warrants to Tenant to its actual knowledge without independent investigation or inquiry, as of the date of this Lease that Tenants use of the Premises for the Permitted Use does not violate any restrictions under any leases or agreements applicable to the Project.
(b) Landlord shall provide Tenant with: (i) Building-standard identification signage at the main entrance to the Premises, the costs of which shall be paid for by Landlord; and (ii) Building-standard directional signage in the multi-tenant elevator lobby on the 6th floor of the Building, the costs of which shall be paid for by Landlord for the originally named Tenant, otherwise by Tenant as Additional Rent within ten (10) days after written demand. Tenant shall not place, erect, or maintain any signs at the Premises, the Building, or the Project that are visible from outside of the Premises.
(c) Subject to the Building rules and regulations set forth on Exhibit E attached hereto (as the same may be modified pursuant to Section 19 herein), Tenant shall have the nonexclusive right in common with others to use the Common Areas for their intended purposes.
(d) Landlord shall have the right in its sole discretion to, from time to time, construct, maintain, operate, repair, close, limit, take out of service, alter, change, and modify all or any part of the Common Areas, provided, however, in no event shall the Common Areas be altered in such a way that will materially and negatively affect Tenants visibility, ingress/egress and/or use and occupancy of the Premises. Landlord, Landlords agents, approved contractors, and utility service providers shall have the right to install, use, and maintain ducts, pipes, wiring, and conduits in and through the Premises provided Landlord avoids material interference to the conduct of Tenants business operations in the Premises and such use does not cause the usable area of the Premises to be reduced beyond a de minimis amount.
(e) Subject to Landlords reasonable security measures and Force Majeure Events (as defined in Section 25(g)), Landlord shall provide Tenant with access to the Building and, if applicable, passenger elevator service for use in common with others for access to and from the Premises twenty (24) hours per day, seven (7) days per week, except during emergencies. Landlord shall have the right to limit the number of elevators (if any) to be operated during repairs and during non-Business Hours and on weekends. If applicable, Landlord shall provide Tenant with access to the freight elevator(s) of the Building from time to time following receipt of Tenants prior request, and Tenant shall pay Landlords then-current charge for use of such freight elevators.
9. TENANTS ALTERATIONS.
(a) Except as otherwise set forth herein, Tenant shall not, and shall not permit any Tenant Agent to, cut, drill into, or secure any fixture, apparatus, or equipment, or make alterations, improvements, or physical additions of any kind to any part of the Premises (collectively, Alterations) without first obtaining the written consent of Landlord, which consent shall not be unreasonably withheld, conditioned, or delayed. Tenant Agent means any agent, employee, subtenant, assignee, contractor, client, family member, licensee, customer, invitee, or guest of Tenant. All Alterations shall be completed in compliance with all applicable Laws, and Landlords reasonable rules and regulations for construction, and sustainable guidelines and procedures, using new or comparable materials only, by a contractor reasonably approved in writing by Landlord, and on days and at times reasonably approved in writing by Landlord. Notwithstanding the foregoing, Landlords consent shall not be required for any Alteration costing less than $25,000.00 and that: (i) is interior and nonstructural; (ii) does not impact any of the Building systems, involve electrical or drywall work, require a building permit, materially affect the air quality in the Building, or require Landlord to incur additional costs as a result thereof; and (iii) is not visible from outside of the Premises.
(b) Throughout the performance of Alterations, Tenant shall carry, or cause any contractor, subcontractor, or design professional to carry, via written contract, workers compensation insurance in statutory limits together with employers liability insurance, commercial general liability insurance, automobile liability, and umbrella/excess liability insurance in like form and limits in accordance with the terms and conditions required of Tenant under Section 12 below, and such other insurance coverage and limits as Landlord may otherwise reasonably require, which may include, without limitation, reasonable amounts of professional liability insurance with respect to design professionals, as well as contractors pollution liability with respect to contractors and subcontractors. Tenant shall also require any such contractor, subcontractor, or design professional to satisfy the same additional coverage terms as required of Tenant under Section 12 below with respect to naming each Additional Insured (as defined in Section 12) as an additional insured by way of endorsement ISO CG 20 37 together with CG 20 10 or their equivalent, which insurance shall be primary, and any other insurance that may be available to Landlord and any such additional insured will be excess and noncontributory, and waiving all rights of recovery and subrogation. In addition, Tenant shall carry all risk Builders Risk insurance covering the Alterations, unless otherwise agreed upon in writing by Landlord and Tenant. Tenant shall provide to Landlord prior written notice of its intention to perform any Alteration, together with a certificate of insurance from each contractor and design professional evidencing that the insurance required under this Lease is in effect during all construction activities.
(c) Except to the extent included in the Leasehold Improvements, Tenant shall be solely responsible for the installation and maintenance of its data, telecommunication, and security systems and wiring at the Premises, which shall be done in compliance with all applicable Laws, and Landlords reasonable rules and regulations. Upon Landlords request, Tenant shall provide Landlord with a release of liens from all contractors, subcontractors, and design professionals associated with all Alterations. Tenant shall be responsible for all elements of Alterations (including, without limitation, compliance with Laws, and functionality of the design), and Landlords approval of any Alteration and the plans therefor shall in no event relieve Tenant of the responsibility for such design, or create responsibility or liability on Landlords part for their completeness, design sufficiency, or compliance with Laws. With respect to all improvements and Alterations made after the date hereof, Tenant acknowledges that: (A) Tenant is not, under any circumstance, acting as the agent of Landlord; (B) Landlord did not cause or request such Alterations to be made; (C) Landlord has not ratified such work; and (D) Landlord did not authorize such Alterations within the meaning of applicable State statutes. Nothing in this Lease or in any consent to the making of Alterations or improvements shall be deemed or construed in any way as constituting a request by Landlord, express or implied, to any contractor, subcontractor, or supplier for the performance of any labor or the furnishing of any materials for the use or benefit of Landlord. Tenant shall not overload any floor or part thereof in the Premises or the Building, including any public corridors or elevators, by bringing in, placing, storing, installing or removing any large or heavy articles, and Landlord may prohibit, or may direct and control the location and size of, safes and all other heavy articles, and may require, at Tenants sole cost and expense, supplementary supports of such material and dimensions as Landlord may deem reasonably necessary to properly distribute the weight.
10. ASSIGNMENT AND SUBLETTING.
(a) Except as expressly permitted pursuant to Section 10(c), neither Tenant nor Tenants legal representatives or successors-in-interest by operation of law or otherwise, shall sell, assign, transfer, hypothecate, mortgage, encumber, grant concessions or licenses, sublet, or otherwise dispose of all or any interest in this Lease or the Premises, or permit any person or entity other than Tenant to occupy any portion of the Premises (each of the foregoing is a Transfer to a Transferee), without Landlords prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed. Any Transfer undertaken without Landlords prior written consent (other than pursuant to Section 10(c)) shall constitute an Event of Default and shall, at Landlords option, be void and/or terminate this Lease. For purposes of this Lease, a Transfer shall include, without limitation, any assignment by operation of law, and any merger, consolidation, or asset sale involving Tenant. Consent by Landlord to any one Transfer shall be held to apply only to the specific Transfer authorized, and shall not be construed as a waiver of the duty of Tenant, or Tenants legal representatives or assigns, to obtain from Landlord consent to any other or subsequent Transfers pursuant to the foregoing, or as modifying or limiting the rights of Landlord under the foregoing covenant by Tenant.
(b) Without limiting the bases upon which Landlord may reasonably withhold its consent to a proposed Transfer, it shall not be unreasonable for Landlord to withhold its consent if: (i) the proposed Transferee shall have a net worth that is not acceptable to Landlord in Landlords reasonable discretion, taking into account the remaining obligations under this Lease and the fact that Tenant is not released; (ii) the proposed Transferee, in Landlords reasonable opinion, is not reputable and of good character; (iii) the portion of the Premises requested to be subleased renders the balance of the Premises unleasable as a separate area; (iv) Tenant is proposing a sublease at a rental or sub-rental rate that is less than the then-fair market rental rate for the portion of the Premises being subleased; (v) Tenant is proposing to Transfer to an existing tenant of the Building or another property owned by Landlord or Landlords affiliate(s) (and Landlord and/or Landlords affiliate(s), as applicable, then has comparable space in the Building and/or other property, as applicable, available for lease), or to another prospect with whom Landlord or Landlords affiliate(s) are then negotiating in the market of which the Building is a part; or (vi) the nature of such Transferees proposed business operation would or might reasonably violate the terms of this Lease or of any other lease for the Building (including any exclusivity provisions), or would, in Landlords reasonable judgment, otherwise be incompatible with other tenancies in the Building.
(c) Notwithstanding anything to the contrary in this Lease, Tenant shall have the right without the prior consent of Landlord, but after prior written notice to Landlord, to make a Transfer to any Affiliate (as defined below), or an entity into which Tenant merges or that acquires substantially all of the assets or stock or ownership interests of Tenant (Surviving Entity) (the Surviving Entity or Affiliate are also referred to as a Permitted Transferee); provided: (i) Tenant delivers to Landlord the Transfer Information (as defined below); (ii) the Surviving Entity shall have a tangible net worth at least equal to the net worth of Tenant on the date of this Lease or otherwise reasonably acceptable to Landlord taking into account the fact that the originally named Tenant is not being released; (iii) the originally named Tenant shall not be released or discharged from any liability under this Lease by reason of such Transfer, and the Permitted Transferee shall assume in writing all of the obligations and liabilities of Tenant under this Lease; (iv) the use of the Premises shall not change, and the Permitted Transferee, in Landlords reasonable opinion, shall be reputable and of good character befitting a class A office
building; and (v) such Transfer is for a good business purpose and not principally for the purpose of transferring the leasehold estate created by this Lease. An Affiliate means a corporation, limited liability company, partnership, or other registered entity, fifty percent (50%) or more of whose equity interest is owned by the same persons or entities owning fifty percent (50%) or more of Tenants equity interests, a subsidiary, or a parent corporation.
(d) If at any time during the Term Tenant desires to complete a Transfer that requires Landlords consent, Tenant shall give written notice to Landlord of such desire together with the Transfer Information. If Tenant desires to sublease less than the entire Premises other than to pursuant to Section 10(c), Landlord shall have the right to accelerate the Expiration Date with respect to (that is, recapture) the portion of the Premises that Tenant proposes to sublease. If Landlord elects to accelerate the Expiration Date pursuant to this paragraph, Tenant shall have the right to rescind its request for Landlords consent to the proposed assignment or sublease by giving written notice of such rescission to Landlord within ten (10) business days after Tenants receipt of Landlords acceleration election notice, in which case this Lease shall continue in full force and effect as if Landlord had not exercised such acceleration right. If Tenant does not so rescind its request: (A) Tenant shall deliver the applicable portion thereof to Landlord in the same condition as Tenant is, by the terms of this Lease, required to deliver the Premises to Landlord upon the Expiration Date; and (B) Fixed Rent and Tenants Share shall be reduced on a per rentable square foot basis for the area of the Premises that Tenant no longer leases. If Landlord elects to accelerate the Expiration Date for less than the entire Premises, the cost of erecting any demising walls, entrances, and entrance corridors, and any other improvements required in connection therewith shall be performed by Landlord, with the cost thereof being divided evenly between Landlord and Tenant.
(e) The Transfer Information means the following information: (i) a copy of the fully executed assignment and assumption agreement, or sublease agreement, as applicable (with respect to a Permitted Transfer, such agreement to be delivered to Landlord within ten (10) business days after the transaction closes and with respect to all other Transfers, such agreement shall be provided in draft form and shall not be executed until Landlords consent has been given); (ii) a copy of the then-current financials of the Transferee (either audited or certified by the chief financial officer of the Transferee); and (iii) such other reasonably requested information by Landlord needed to confirm or determine Tenants compliance with the terms and conditions of this Section.
(f) Fifty percent (50%) of any sums or other economic consideration received by Tenant as a result of any Transfer which requires Landlords consent (except rental or other payments received that are attributable to the amortization of the cost of leasehold improvements made to the transferred portion of the Premises by Tenant for the Transferee, and other reasonable expenses incident to the Transfer, including standard leasing commissions) whether denominated rentals under the sublease or otherwise, that exceed, in the aggregate, the total sums which Tenant is obligated to pay Landlord under this Lease (prorated to reflect obligations allocable to that portion of the Premises subject to such Transfer) shall, at Landlords option, either be retained by Tenant or paid to Landlord, with Landlords portion being payable to Landlord as Additional Rent without affecting or reducing any other obligation of Tenant hereunder.
(g) Regardless of Landlords consent to a proposed Transfer, no Transfer shall release Tenant from Tenants obligations or alter Tenants primary liability to fully and timely pay all Rent when due from time to time under this Lease and to fully and timely perform all of Tenants other obligations under this Lease, and the originally named Tenant and all assignees shall be jointly and severally liable for all Tenant obligations under this Lease. The acceptance of rental by Landlord from any other person shall not be deemed to be a waiver by Landlord of any provision hereof. If a Transferee defaults in the performance of any of the terms of this Lease, Landlord may proceed directly against the originally named Tenant without the necessity of exhausting remedies against such Transferee. If there has been a Transfer and an Event of Default occurs, Landlord may collect Rent from the Transferee and apply the net amount collected to the Rent herein reserved; but no such collection shall be deemed a waiver of the provisions of this Section, an acceptance of such Transferee as tenant hereunder or a release of Tenant from further performance of the covenants herein contained.
11. REPAIRS AND MAINTENANCE.
(a) Except with respect to Landlord Repairs (as defined below), Tenant, at Tenants expense, shall keep and maintain the interior, nonstructural portions of the Premises in good order and condition including promptly making all repairs necessary to keep and maintain such in good order and condition (other than ordinary wear and tear, provided ordinary wear and tear does not, and shall not be deemed to, include any damage or deterioration that could have been prevented through proper maintenance, or by Tenants full and timely performance of its obligations under this Lease) (except to the extent such maintenance, repair or replacement is required as a result of the negligence of Landlord or Landlords contractors, employees or agents, in which event it shall be the obligation of Landlord to maintain, repair and/or replace same). When used in this Lease, repairs shall include repairs and any reasonably necessary replacements. For purposes of this Section, nonstructural portions of the Premises shall be deemed to exclude, without limitation, all plumbing, electric and HVAC systems, whether located in or outside of the Premises (except for the Tenants Supplemental HVAC and Premises Hot Water Heaters). Tenant shall have the option of replacing lights, ballasts, tubes, ceiling tiles, outlets and similar equipment itself or advising Landlord of Tenants desire to have Landlord make such repairs, in which case Tenant shall pay to Landlord for such repairs at Landlords then-standard rate (such rate to be competitive with the market rate for such services). To the extent that Tenant requests that Landlord make any other repairs that are Tenants obligation to make under this Lease, Landlord may elect to make such repairs on Tenants behalf, at Tenants reasonable expense, and Tenant shall pay to Landlord such expense along with the Administrative Fee. All Tenant repairs shall comply with Laws and utilize materials and equipment that are at least equal in quality, number, and usefulness to those originally used in constructing the Building and the Premises. In addition, Tenant shall maintain, at Tenants expense, Tenants Supplemental HVAC, and/or Alterations in a clean and safe manner and in proper operating condition throughout the Term. Tenants Supplemental HVAC means any supplemental HVAC system serving exclusively the Premises and installed by or on behalf of Tenant after the Commencement Date. Premises Hot Water Heater means any hot water heater serving exclusively the Premises, including without limitation expansion tanks and any associated piping, but excluding the under-sink water heater existing on the date of this Lease. Tenant shall maintain Tenants Supplemental HVAC under a service contract with a firm and upon such terms as may be reasonably satisfactory to Landlord, including inspection and
maintenance on at least a semiannual basis, and provide Landlord with a copy thereof. Within five (5) days after Landlords request, Tenant shall provide Landlord with evidence that such contract is in place. All repairs to the Building and/or the Project made necessary by reason of the installation, maintenance, and operation of Tenants Supplemental HVAC, Premises Hot Water Heaters, and Alterations shall be Tenants expense. In the event of an emergency, such as a burst waterline or act of God, Landlord shall have the right to make repairs for which Tenant is responsible hereunder (at Tenants reasonable cost) without giving Tenant prior notice, but in such case Landlord shall provide notice to Tenant as soon as practicable thereafter, and Landlord shall take commercially reasonable steps to minimize the costs incurred. Further, Landlord shall have the right to make repairs for which Tenant is responsible hereunder (at Tenants reasonable cost) with prior notice to Tenant if Landlord believes in its sole and absolute discretion that the repairs are necessary to prevent harm or damage to the Building, and Landlord shall take commercially reasonable steps to minimize the costs incurred.
(b) Landlord, at Landlords expense (except to the extent such expenses are includable in Project Expenses), shall make all necessary repairs to: (i) the footings and foundations and the structural elements of the Building; (ii) the roof of the Building; (iii) the HVAC, plumbing, elevators (if any), electric, fire protection, fire alert and other utility systems servicing the Building and the Premises, but specifically excluding Tenants Supplemental HVAC, Premises Hot Water Heaters, Alterations, and any systems servicing exclusively the Premises; (iv) the Building exterior; and (v) the Common Areas (collectively, Landlord Repairs). Any provision of this Lease to the contrary notwithstanding, any repairs to the Project or any portion thereof made necessary by the negligent or willful act or omission of, or default under this Lease by, Tenant or any Tenant Agent shall be made at Tenants expense, subject to the waivers set forth in Section 12(g).
(c) The parties agree it is in their mutual best interest that the Building and Premises be operated and maintained in a manner that is environmentally responsible, fiscally prudent, and provides a safe and productive work environment. Accordingly, Tenant shall use commercially reasonable efforts, at no additional material cost to Tenant, to conduct its operations in the Building and within the Premises to: (1) minimize to the extent reasonably feasible: (i) direct and indirect energy consumption and greenhouse gas emissions; (ii) water consumption; (iii) the amount of material entering the waste stream; and (iv) negative impacts upon the indoor air quality of the Building; and (2) permit the Building to maintain its LEED rating and an Energy Star label, to the extent applicable. Landlord shall use commercially reasonable efforts to operate and maintain the Common Areas of the Building to: (1) minimize to the extent reasonably feasible: (i) direct and indirect energy consumption and greenhouse gas emissions; (ii) water consumption; (iii) the amount of material entering the waste stream; and (iv) negative impacts upon the indoor air quality of the Building; and (2) permit the Building to maintain its LEED rating and an Energy Star label, to the extent applicable, the costs of which shall be included in Project Expenses (except to the extent otherwise not permitted).
12. INSURANCE: SUBROGATION RIGHTS.
(a) Tenant shall not violate, or permit the violation of, any condition imposed by any insurance policy then issued in respect of the Project and shall not do, or permit anything to be done, or keep or permit anything to be kept in the Premises, that would subject Landlord to
any liability or responsibility for personal injury or death or property damage, increase any insurance rate in respect of the Project over the rate that would otherwise then be in effect, result in insurance companies of good standing refusing to insure the Project in amounts reasonably satisfactory to Landlord, or result in the cancellation of, or the assertion of any defense by the insurer in whole or in part to claims under, any policy of insurance in respect of the Project. If, by reason of any failure of Tenant to comply with this Lease, the premiums on Landlords insurance on the Project are higher than they otherwise would be, Tenant shall reimburse Landlord, on demand, for that part of such premiums attributable to such failure on the part of Tenant. Landlord hereby acknowledges and agrees that Tenants use of the Premises for the Permitted Use will not cause an increase in Landlords insurance premiums.
(b) Tenant, at Tenants expense, shall obtain and keep in full force and effect at all times as of the Commencement Date (or Tenants earlier accessing of the Premises), all of the following insurance policies:
(i) commercial general liability insurance written on an ISO CG 00 01 occurrence policy form or its equivalent, including a Separation of Insureds clause, coverage for contractual liability covering Tenants contractual obligations under this Lease as ah insured contract, personal injury liability, host liquor liability, premises-operations and hazards thereto, as well as liability arising out of this Lease in respect of the Premises and the conduct or operation of business therein. The minimum limits of coverage shall be no less than $1,000,000 per occurrence and $2,000,000 general aggregate (applying per location) for bodily injury (including death and mental anguish) and property damage and $1,000,000 personal and advertising injury.
(ii) business automobile liability insurance covering liability arising from any auto (including, owned, non-owned, and hired auto, provided such non-owned and hired auto liability may be satisfied by endorsement to the commercial general liability policy) in an amount of no less than $1,000,000 combined single limit per accident for bodily injury and property damage.
(iii) workers compensation in statutory limits together with employers liability insurance in amounts of no less than $1,000,000 each accident, $1,000,000 disease policy limit, and $1,000,000 disease each employee.
(iv) umbrella/excess liability insurance on a follow form basis in amounts of no less than $5,000,000 per occurrence and $5,000,000 annual aggregate (applying per location) in excess of commercial general liability, employers liability, and automobile liability insurance policies, concurrent to, and no more restrictive than such underlying insurance policies. Such policy shall be endorsed to provide that this insurance is primary to, and noncontributory with, any other insurance in which Landlord and any Additional Insured is an insured, whether such other insurance is primary, excess, self-insurance, or insurance on any other basis, which must cause the umbrella/excess coverage to be vertically exhausted, whereby such coverage is not subject to any Other Insurance provision under Tenants umbrella/excess liability policy. The limits of liability may be satisfied by a combination of primary and excess liability insurance.
(v) property insurance written on an ISO CP 10 30-Cause of Loss-Special Form, commonly referred to as the all risk policy form, or its equivalent, including, but not limited to, coverage against sprinkler leakage and other damage due to water, fire, windstorm, cyclone, tornado, hail, earthquake, explosion, riot, civil commotion, aircraft, vehicle, smoke damage, vandalism, and malicious mischief insuring all present and future Tenants Property leased by or in the care, custody, and control of Tenant and located in the Premises in an amount of no less than the full replacement cost thereof, with an agreed amount endorsement (waiving applicable co-insurance clause). Tenants Property means Tenants trade fixtures, equipment, personal property, signage, and Specialty Alterations (as defined in Section 18(b)). Tenant shall not self-insure. Tenant shall neither have, nor make, any claim against Landlord for any loss or damage to Tenants Property, regardless of the cause of the loss or damage, including, without limitation, fire, explosion, falling plaster, steam, gas, air contaminants or emissions, electricity, electrical or electronic emanations or disturbance, water, rain, snow, or leaks from any part the Building or from the pipes, appliances, equipment, or plumbing works or from the roof or from any other place, nor shall Landlord be liable for any loss of or damage to property of Tenant or of others entrusted to employees of Landlord.
(vi) business interruption insurance covering any loss due to the occurrence of any of the hazards required to be insured against by Tenant pursuant to this Lease, in an amount sufficient to cover Tenants monetary obligations under this Lease for a period of at least twelve (12) months.
(vii) boiler and machinery, if there is a boiler, supplemental air conditioning unit, or pressure object or similar equipment in the Premises. When applicable, this insurance coverage requirement may be satisfied through the all-risk coverage required in Section 12(b)(v).
(c) All insurance policies required of Tenant under this Lease, exclusive of workers compensation, shall name Landlord, Landlords property manager, Brandywine Realty Trust, and any other applicable party whose name and address have been furnished to Tenant, each as an additional insured (collectively, Additional Insureds). All such coverages shall be primary and any other insurance that may be available to Landlord and any Additional Insured will be excess and noncontributory. Each Additional Insured shall be afforded coverage as broad as if this Lease had expressly covered the claim against the Additional Insured, and for the greater of the minimum amount called for by this Lease or Tenants actual policy limit.
(d) Prior to the Commencement Date (or Tenants earlier accessing of the Premises), Tenant shall provide Landlord and/or Landlords designated agent with certificates that evidence that all insurance coverages required under this Lease are in place for the policy periods. Tenant shall also furnish to Landlord and/or Landlords designated agent throughout the Term replacement certificates at least thirty (30) days prior to the expiration dates of the then- current policy or policies or, upon request by Landlord and/or Landlords designated agent from time to time, sufficient information to evidence that the insurance required under this Section is in full force and effect. In addition, all such policies shall contain a provision whereby the same cannot be canceled or materially altered so as to no longer comply with the minimum insurance coverage requirements in this Section 12 without at least thirty (30) days prior written notice of such cancellation or material alteration provided to Landlord, which shall be afforded by policy
endorsement extending such notice to Landlord. Tenant shall include a waiver of the insurers right of subrogation against Landlord and Additional Insureds during the Term in each of Tenants liability and workers compensation policies. If Tenant fails to provide Landlord and/or Landlords designated agent with a requested insurance certificate as required under this Lease within thirty (30) days after receipt of Landlords written request therefor, Tenant shall pay to Landlord a fee equal to $25.00 for each day that elapses after such thirty (30)-day period until Landlord and/or Landlords designated agent receives the requested certificate. In no event will any acceptance of certificates of insurance by Landlord, or failure of Tenant to provide certificates of insurance as required hereunder, be construed as a waiver or limitation of Tenants obligations to maintain insurance coverage pursuant to this Section 12. All insurance required under this Lease shall be issued by an insurance company that has been in business for at least five (5) years, is authorized to do business in the State, and is rated A-/X or greater by A.M. Bests Insurance Reports or any successor publication of comparable standing. The limits of any such required insurance shall not in any way limit Tenants liability under this Lease or otherwise. If Tenant fails to maintain such insurance, Landlord may, but shall not be required to, procure and maintain the same, at Tenants reasonable expense, which expense shall be reimbursed by Tenant as Additional Rent within thirty (30) days after written demand. The deductible or self-insured retention amount required under any insurance policy maintained by Tenant shall be the sole responsibility of Tenant and not exceed $25,000, unless otherwise approved by Landlord in writing.
(e) When Alterations are in process, Tenant shall carry, or cause, any contractor, subcontractor, and design professional to carry the insurance specified in Section 9. In addition, Tenant shall require its movers and other vendors to procure insurance in like forms and amounts as required herein and deliver to Landlord and/or Landlords designated agent a certificate of insurance naming each Additional Insured as an additional insured, which policies shall be primary and any other insurance that may be available to Landlord and any Additional Insured will be excess and noncontributory.
(f) Landlord shall obtain and maintain, or cause to be obtained or maintained, the following insurance during the Term: (i) replacement cost insurance including all risk property insurance on the Building and the Project, including without limitation leasehold improvements (exclusive of Tenants Property); (ii) commercial general liability insurance (including bodily injury and property damage) covering Landlords operations at the Project in amounts reasonably required by Landlord or any Mortgagee (as defined in Section 16); and (iii) such other insurance as reasonably required by Landlord or any Mortgagee.
(g) Landlord and Tenant shall each include in each of its insurance policies (insuring the Building in case of Landlord, and insuring Tenants Property in the case of Tenant, against loss, damage, or destruction by fire or other casualty) a waiver of the insurers right of subrogation against the other party during the Term, and consent to a waiver of right of recovery pursuant to the terms of this paragraph. Both Landlord and Tenant agree to promptly give each insurance company which has issued to it policies of insurance written notice of the terms of such mutual waivers and to cause such insurance policies to be properly endorsed, if necessary, to prevent the invalidation thereof by reason of such waivers. Notwithstanding anything to the contrary in this Lease: (I) each party hereby waives, releases, and agrees not to make any claim against or seek to recover from, the other party with respect to any claim (including a claim for
negligence) that such party might otherwise have against the other party for loss, damage, or destruction with respect to its property occurring during the Term to the extent to which such party is, or is required to be, insured under a policy or policies containing a waiver of subrogation or permission to release liability; and (II) all waivers of subrogation and rights of recovery required hereunder shall also apply to each of the waiving partys insurance policies deductible(s)/self-insured retention(s). Nothing contained in this Section 12(g) shall be deemed to relieve either party of any duty imposed elsewhere in this Lease to repair, restore, or rebuild, or nullify any abatement of rents provided for elsewhere in this Lease.
(a) Except to the extent the release of liability and waiver of subrogation provided in Section 12 above applies, Tenant shall defend, indemnify, and hold harmless Landlord, Landlords property manager, Brandywine Realty Trust, and each of Landlords directors, officers, members, partners, trustees, employees, and agents (collectively, Landlord Indemnitees) from and against any and all third-party claims, actions, damages, liabilities, and expenses (including all reasonable costs and expenses (including reasonable attorneys fees)) to the extent arising out of or from or related to: (i) any breach or default of any of Tenants obligations under this Lease; (that continues beyond the expiration of all applicable notice and/or cure periods); (ii) any negligence or willful act or omission of Tenant, any Tenant Indemnitees (as defined below), or any Tenant Agent; and (iii) except to the extent arising from Landlords or the Landlord Indemnitees or Landlords contractors negligence or willfill misconduct, any acts or omissions occurring at, or the condition, use, or operation of, the Premises. If Tenant fails to promptly defend a Landlord Indemnitee following written demand by the Landlord Indemnitee, the Landlord Indemnitee shall defend the same at Tenants expense, by retaining or employing counsel reasonably satisfactory to such Landlord Indemnitee.
(b) Except to the extent the release of liability and waiver of subrogation provided in Section 12 above applies, Landlord shall defend, indemnify, and hold harmless Tenant and each of Tenants directors, officers, members, partners, trustees, employees, and agents (collectively, Tenant Indemnitees) from and against any and all third-party claims, actions, damages, liabilities, and expenses (including all reasonable costs and expenses (including reasonable attorneys fees)) to the extent arising out of or from or related to: (i) any breach or default of any of Landlords obligations under this Lease (that continues beyond the expiration of all applicable notice and/or cure periods); and (ii) any negligence or willful misconduct of Landlord or any Landlord Indemnitees or Landlords contractors. If Landlord fails to promptly defend a Tenant Indemnitee following written demand by the Tenant Indemnitee, the Tenant Indemnitee shall defend the same at Landlords expense, by retaining or employing counsel reasonably satisfactory to such Tenant Indemnitee.
(c) Landlords and Tenants obligations under this Section shall not be limited by the amount or types of insurance maintained or required to be maintained under this Lease. The provisions of this Section shall survive the Expiration Date.
14. CASUALTY DAMAGE. If there occurs any casualty to the Project and: (i) insurance proceeds are unavailable to Landlord or are insufficient to restore the Project to substantially its pre-casualty condition; or (ii) more than thirty percent (30%) of the total area of the Building is damaged, Landlord shall have the right to terminate this Lease and all the unaccrued obligations of the parties hereto, by sending written notice of such termination to Tenant within sixty (60) days after such casualty. Such notice shall specify a termination date not fewer than thirty (30) nor more than ninety (90) days after such notice is given to Tenant. If there occurs any casualty to the Premises and: (i) in Landlords reasonable judgment, the repair and restoration work would require more than 210 consecutive days to complete after the casualty (assuming normal work crews not engaged in overtime); or (ii) the casualty occurs during the last twelve (12) months of the Term, Landlord and Tenant shall each have the right to terminate this Lease and all the unaccrued obligations of the parties hereto, by sending written notice of such termination to the other party within sixty (60) days after the date of such casualty. Such notice shall specify a termination date not fewer than thirty (30) nor more than ninety (90) days after such notice is given to the other party, but in no event shall the termination date be after the last day of the Term. Notwithstanding the foregoing, if the casualty was caused by the criminal act of Tenant or any principal or officer of Tenant, Tenant shall have no right to terminate this Lease due to the casualty. If there occurs any casualty to the Premises and neither party terminates this Lease, then Landlord shall use commercially reasonable efforts to cause the damage to be repaired (exclusive of Tenants Property) to a condition as nearly as practicable to that existing prior to the damage, with commercially reasonable speed and diligence, subject to delays that may arise by reason of adjustment of the loss under insurance policies, Laws, and Force Majeure Events. If this Lease is not terminated pursuant to this paragraph and Landlord fails to complete the repair or restoration work within ninety (90) days after Landlords estimated date for completion of the repair and restoration work (subject to extension for delays caused by Tenant and Force Majeure Events), then Tenant shall have the right to terminate this Lease by sending at least thirty (30) days prior written notice to Landlord within thirty (30) days after such estimated date of completion, provided this Lease shall remain in full force and effect and Tenant shall no longer have the right to terminate this Lease if Landlord delivers possession of the Premises to Tenant within thirty (30) days after Landlords receipt of Tenants termination notice. Landlord shall not be liable for any inconvenience or annoyance to Tenant or Tenant Indemnitees, injury to Tenants business, or pain and suffering, resulting in any way from such damage or the repair thereof. Notwithstanding the foregoing, Tenants obligation to pay Fixed Rent and Additional Rent shall be equitably adjusted or abated during the period (if any) during which Tenant is not reasonably able to use the Premises or an applicable portion thereof as a result of such casualty. Tenant shall have no right to terminate this Lease as a result of any damage or destruction of the Premises, except as expressly provided in this Section. The provisions of this Lease, including this Section, constitute an express agreement between Landlord and Tenant with respect to any and all damage to, or destruction of, all or any part of the Premises, and any Law with respect to any rights or obligations concerning damage or destruction in the absence of an express agreement between the parties, and any other statute or regulation, now or hereafter in effect, shall have no application to this Lease or any damage or destruction to all or any part of the Premises.
15. CONDEMNATION. If a taking renders the Building reasonably unsuitable for the Permitted Use, this Lease shall, at either partys option exercised by written notice to the other within thirty (30) days after such taking, terminate as of the date title to condemned real estate vests in the condemner, the Rent herein reserved shall be apportioned and paid in full by Tenant to Landlord to such date, all Rent prepaid for period beyond that date shall forthwith be repaid by Landlord to Tenant, and neither party shall thereafter have any liability for any
unaccrued obligations hereunder; provided, however, a condition to the exercise by Tenant of such right to terminate shall be that the portion of the Premises taken shall be of such extent and nature as materially to handicap, impede, or impair Tenants use of the balance of the Premises for its normal business operations. If this Lease is not terminated after a condemnation, then notwithstanding anything to the contrary in this Lease, Fixed Rent and Additional Rent shall be equitably reduced in proportion to the area of the Premises that has been taken for the balance of the Term. Tenant shall have the right to make a claim against the condemner for moving expenses, business dislocation damages and loss of business to the extent that such claim does not reduce the sums otherwise payable by the condemner to Landlord.
16. SUBORDINATION: ESTOPPEL CERTIFICATE.
(a) Provided that Tenants right of possession of the Premises shall not be disturbed by the Mortgagee so long as there is no Event of Default under this Lease, this Lease shall be subordinate at all times to the lien of any mortgages and deeds of trust now or hereafter placed upon the Premises, Building, and/or Project and land of which they are a part (a Mortgage) without the necessity of any further instrument or act on the part of Tenant to effectuate such subordination. Notwithstanding the foregoing, to the extent that there is a subordination, non-disturbance, and attornment agreement executed by Tenant and Mortgagee, the terms of the subordination, non-disturbance, and attornment agreement shall control. Tenant further agrees to execute and deliver within twenty (20) days after demand such further instrument evidencing such subordination and attornment as shall be reasonably required by any Mortgagee. If Landlord shall be or is alleged to be in default of any of its obligations owing to Tenant under this Lease, Tenant shall give to the holder (the Mortgagee) of any mortgage or deed of trust now or hereafter placed upon the Premises, Building, and/or Project whose name and address has been furnished to Tenant, notice by overnight mail of any such default that Tenant shall have served upon Landlord. Tenant shall not be entitled to exercise any right or remedy as there may be because of any default by Landlord without having given such notice to the Mortgagee. If Landlord shall fail to cure such default, the Mortgagee shall have thirty (30) additional days within which to cure such default or such longer period as may be reasonably necessary to complete the cure provided Mortgagee is proceeding diligently to cure such default. Notwithstanding the foregoing, any Mortgagee may at any time subordinate its mortgage to this Lease, without Tenants consent, by notice in writing to Tenant, and thereupon this Lease shall be deemed prior to such Mortgage without regard to their respective dates of execution and delivery, and in that event the Mortgagee shall have the same rights with respect to this Lease as though it had been executed prior to the execution and delivery of the Mortgage.
(b) Tenant shall attorn to any foreclosing mortgagee, purchaser at a foreclosure sale or by power of sale, or purchaser by deed in lieu of foreclosure. If the holder of a superior mortgage shall succeed to the rights of Landlord, then at the request of such party so succeeding to Landlords rights (herein sometimes called successor landlord), Tenant shall attorn to and recognize such successor landlord as Tenants landlord under this Lease and shall promptly, without payment to Tenant of any consideration therefor, execute and deliver any instrument that such successor landlord may reasonably request to evidence such attornment. Upon such attornment, this Lease shall continue in full force and effect as, or as if it were, a direct lease between the successor landlord and Tenant upon all of the terms, conditions, and covenants as are set forth in this Lease and shall be applicable after such attornment, except that
the successor landlord shall not be bound by any modification of this Lease not approved by the successor landlord, or by any previous prepayment of more than one months rent, unless such modification or prepayment shall have been expressly approved in writing by the holder of the superior mortgage through or by reason of which the successor landlord shall have succeeded to the rights of Landlord. With respect to any assignment by Landlord of Landlords interest in this Lease, or the rents payable hereunder, conditional in nature or otherwise, which assignment is made to any Mortgagee, Tenant agrees that the execution thereof by Landlord, and the acceptance thereof by the Mortgagee, shall never be deemed an assumption by such Mortgagee of any of the obligations of Landlord hereunder, unless such Mortgagee shall, by written notice sent to Tenant, specifically elect, or unless such Mortgagee shall foreclose the Mortgage and take possession of the Premises. Tenant, upon receipt of written notice from a Mortgagee that such Mortgagee is entitled to collect Rent hereunder may in good faith remit such Rent to Mortgagee without incurring liability to Landlord for the nonpayment of such Rent. The provisions for attornment set forth in this Section 16(b) shall be self-operative and shall not require the execution of any further instrument. However, if Landlord reasonably requests a further instrument confirming such attornment, Tenant shall execute and deliver such instrument within 10 days after receipt of such request.
(c) Tenant must at any time and from time to time, within ten (10) business days after receipt of Landlords written request, execute and deliver to Landlord an estoppel certificate certifying all reasonably requested information pertaining to this Lease.
17. DEFAULT AND REMEDIES.
(a) An Event of Default shall be deemed to exist and Tenant shall be in default hereunder if: (i) Tenant fails to pay any Rent when due and such failure continues for more than five (5) business days after Landlord has given Tenant written notice of such failure (such notice being in lieu of, and not in addition to, any applicable statutory notice); provided, however, in no event shall Landlord have any obligation to give Tenant more than two (2) such notices in any twelve (12)-month period, after which there shall be an Event of Default if Tenant fails to pay any Rent when due, regardless of Tenants receipt of notice of such nonpayment, and, provided further, there shall be an automatic Event of Default if Tenant fails to pay any Rent when due and the automatic stay of bankruptcy precludes issuance of a default notice; (ii) Tenant fails to bond over a mechanics or materialmens lien within thirty (30) days after Landlords demand; (iii) there is any assignment or subletting (regardless of whether the same might be void under this Lease) in violation of the terms of this Lease; (iv) the occurrence of any default beyond any applicable notice and/or cure period under any guaranty executed in connection with this Lease; (v) Tenant fails to deliver any Landlord-requested estoppel certificate or subordination agreement within five (5) business days after receipt of notice that such document was not received within the time period required under this Lease; (vi) there is a filing of a voluntary petition for relief by Tenant or any guarantor, or the filing of a petition against Tenant or any guarantor in a proceeding under the federal bankruptcy or other insolvency laws that is not withdrawn or dismissed within forty-five (45) days thereafter, or Tenants rejection of this Lease after such a filing, or, under the provisions of any law providing for reorganization or winding up of corporations, the assumption by any court of competent jurisdiction of jurisdiction, custody, or control of Tenant or any substantial part of its property, or of any guarantor, where such jurisdiction, custody, or control remains in force, unrelinquished,
unstayed, or unterminated for a period of forty-five (45) days, or the death or ceasing of existence of Tenant or any guarantor, or the commencement of steps or proceedings toward the dissolution, winding up, or other termination of the existence of Tenant or any guarantor, or toward the liquidation of either of their respective assets, or the evidence of the inability of Tenant or any guarantor to pay its debts as they come due, including without limitation an admission in writing of its inability to pay its debts when due, or any judgment docketed against any guarantor which is not paid, bonded, or otherwise discharged within forty-five (45) days; or (vii) Tenant fails to observe or perform any of Tenants other agreements or obligations under this Lease and such failure continues for more than thirty (30) days after Landlord gives Tenant written notice of such failure(not to exceed sixty (60) days), provided Tenant immediately commences and thereafter proceeds with all due diligence and in good faith to cure such failure.
(b) Upon the occurrence of an Event of Default, Landlord, in addition to the other rights or remedies it may have under this Lease, at law, or in equity, and without prejudice to any of the same, shall have the option, without any notice to Tenant and with or without judicial process, to pursue any one or more of the following remedies:
(i) Landlord shall have the right to terminate this Lease, in which event Tenant shall immediately surrender the Premises to Landlord, and Tenant shall pay Landlord upon demand for all losses and damages that Landlord suffers or incurs by reason of such termination, including damages in an amount equal to the total of: (A) the costs of repossessing the Premises and all other expenses incurred by Landlord in connection with Tenants default, plus the Administrative Fee; (B) the unpaid Rent earned as of the date of termination; (C) all Rent for the period that would otherwise have constituted the remainder of the Term minus the fair market rental value of the Premises (as reasonably determined by Landlord as of the time of such termination) for the remainder of the Term, with such resulting amount being discounted to present value at a rate of 4% per annum; and (D) all other sums of money and damages owing by Tenant to Landlord. The Administrative Fee means fifteen percent (15%) of the reasonable costs incurred by Landlord in curing Tenants default or performing Tenants obligations hereunder.
(ii) Landlord shall have the right to terminate Tenants right of possession (but not this Lease) and may repossess the Premises by forcible detainer or forcible entry and detainer suit or otherwise, without demand or notice of any kind to Tenant and without terminating this Lease. If Tenant receives written notice of a termination of its right to possession, such notice will serve as both a notice to vacate, notice to pay or quit, and a demand for possession of, the Premises, and Landlord may immediately thereafter initiate a forcible detainer action without any further demand or notice of any kind to Tenant.
(iii) Landlord shall have the right to enter and take possession of all or any portion of the Premises without electing to terminate this Lease, in which case Landlord shall have the right to relet all, or any portion of the Premises on such terms as Landlord deems advisable. Landlord will not be required to incur any expenses to relet all or any portion of the Premises, although Landlord may at its option incur customary leasing commissions or other costs for the account of Tenant as Landlord shall deem necessary or appropriate to relet. In no event will the failure of Landlord to relet all or any portion of the Premises reduce Tenants liability for Rent or damages. Upon the occurrence of an Event of Default, Landlord shall use
commercially reasonable efforts to mitigate its damages. However, Landlord shall not be required to give any special preference or priority to reletting the Premises over other vacant space in the Building, Landlord shall be deemed to have used commercially reasonable efforts if it uses the same efforts in marketing the Premises as used in marketing other vacant space at the Building, and in no event shall Landlord be responsible or liable for any failure to relet the Premises or any part thereof, or for any failure to collect any rent due upon a reletting. Landlords rejection of a prospective replacement tenant based on an offer of rentals below Landlords published rates for new leases of comparable space at the Building at the time in question, or below the rates provided in this Lease or containing terms less favorable than those contained herein, shall not give rise to a claim by Tenant that Landlord failed to mitigate its damages.
(iv) Landlord shall have the right to enter the Premises without terminating this Lease and without being liable for prosecution or any claim for damages therefor and maintain the Premises and repair or replace any damage thereto or do anything for which Tenant is responsible hereunder. Tenant shall reimburse Landlord immediately upon demand for any reasonable out-of-pocket costs which Landlord incurs in thus effecting Tenants compliance under this Lease, and Landlord shall not be liable to Tenant for any damages with respect thereto.
(v) Landlord shall have the right to continue this Lease in full force and effect, whether or not Tenant shall have abandoned the Premises. If Landlord elects to continue this Lease in full force and effect pursuant to this Section, then Landlord shall be entitled to enforce all of its rights and remedies under this Lease, including the right to recover Rent as it becomes due. Landlords election not to terminate this Lease pursuant to this Section or pursuant to any other provision of this Lease, at law or in equity, shall not preclude Landlord from showing the Premises to potential tenants, subsequently electing to terminate this Lease, or pursuing any of its other remedies.
(c) Upon the occurrence of an Event of Default, Tenant shall be liable to Landlord for, and Landlord shall be entitled to recover: (i) all Rent accrued and unpaid as of the termination date; (ii) all reasonable costs and expenses incurred by Landlord in recovering possession of the Premises, including legal fees, and removal and storage of Tenants property; (iii) the costs and expenses of restoring the Premises to the condition in which the same were to have been surrendered by Tenant as of the Expiration Date; (iv) the costs of reletting commissions; (v) all reasonable legal fees and court costs incurred by Landlord in connection with the Event of Default; and (vi) the unamortized portion (as reasonably determined by Landlord) of brokerage commissions and consulting fees incurred by Landlord, and tenant concessions including free rent given by Landlord, in connection with this Lease. Upon the occurrence of an Event of Default and notwithstanding Section 1(a) above, the monthly Fixed Rent payable for the Abatement Period shall equal the amount of Fixed Rent payable immediately following the Fixed Rent Start Date.
(d) Any amount payable by Tenant under this Lease that is not paid within thirty (30) days when due shall bear interest at the rate of one percent (1%) per month until paid by Tenant to Landlord. If Tenant fails to pay Rent when due on three (3) or more occasions during the Term, Landlord shall have the right to require Tenant to pay all future Rent by ACH debit of funds, in which case Tenant shall complete Landlords then-current forms authorizing Landlord to automatically debit Tenants bank account.
(e) Neither any delay or forbearance by Landlord in exercising any right or remedy hereunder nor Landlords undertaking or performing any act that Landlord is not expressly required to undertake under this Lease shall be construed to be a waiver of Landlords rights or to represent any agreement by Landlord to thereafter undertake or perform such act. Landlords waiver of any breach by Tenant of any covenant or condition herein contained (which waiver shall be effective only if so expressed in writing by Landlord) or Landlords failure to exercise any right or remedy in respect of any such breach shall not constitute a waiver or relinquishment for the future of Landlords right to have any such covenant or condition duly performed or observed by Tenant, or of Landlords rights arising because of any subsequent breach of any such covenant or condition, nor bar any right or remedy of Landlord in respect of such breach or any subsequent breach.
(f) If Tenant defaults in the performance of any covenant, agreement, term, provision, or condition contained in this Lease, Landlord, in addition to any other rights and remedies it has under this Lease and without thereby waiving such default, may perform the same for the account of and at the expense of Tenant (but shall not be obligated to do so), without notice in a case of emergency and in any other case if such default continues after five (5) days from the date that Landlord gives written notice to Tenant of its intention to do so. Landlord may invoice Tenant for all amounts paid by Landlord and all losses, costs, and expenses incurred by Landlord in connection with any such performance by Landlord pursuant to this paragraph, plus the Administrative Fee, including, without limitation, all amounts paid and costs and expenses incurred by Landlord for any property, material, labor, or services provided, furnished, or rendered, or caused to be provided, furnished, or rendered, by Landlord to Tenant, and shall amount shall be due and payable by Tenant to Landlord as Additional Rent within ten (10) days after Tenant receives the invoice. Any reservation of a right by Landlord to enter upon the Premises and to make or perform any repairs, alterations, or other work in, to, or about the Premises, which, in the first instance, is Tenants obligation pursuant to this Lease, shall not be deemed to impose any obligation on Landlord to do so, render Landlord liable to Tenant or any third party for the failure to do so, or relieve Tenant from any obligation to indemnify Landlord as otherwise provided elsewhere in this Lease.
(g) The rights granted to Landlord in this Section shall be cumulative of every other right or remedy provided in this Lease or which Landlord may otherwise have at law or in equity or by statute, and the exercise of one or more rights or remedies shall not prejudice or impair the concurrent or subsequent exercise of other rights or remedies or constitute a forfeiture or waiver of Rent or damages accruing to Landlord by reason of any Event of Default under this Lease. Landlord shall have all rights and remedies now or hereafter existing at law or in equity with respect to the enforcement of Tenants obligations hereunder and the recovery of the Premises. No right or remedy herein conferred upon or reserved to Landlord shall be exclusive of any other right or remedy, but shall be cumulative and in addition to all other rights and remedies given hereunder or now or hereafter existing at law or in equity. Landlord shall be entitled to injunctive relief in case of the violation, or attempted or threatened violation, of any covenant, agreement, condition or provision of this Lease, or to a decree compelling performance of any covenant, agreement, condition or provision of this Lease.
(h) No payment by Tenant or receipt by Landlord of a lesser amount than any payment of Fixed Rent or Additional Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Fixed Rent or Additional Rent due and payable hereunder, nor shall any endorsement or statement or any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction. Landlord may accept such check or payment without prejudice to Landlords right to recover the balance of such Rent or pursue any other right or remedy provided for in this Lease, at law or in equity, and acceptance of such partial payment shall be deemed subject to Landlords reservation of all rights.
(i) Tenant further waives the right to any notices to quit as may be specified in the Landlord and Tenant Act of Pennsylvania, Act of April 6,1951, as amended, or any similar or successor provision of law, and agrees that five (5) days notice shall be sufficient in any case where a longer period may be statutorily specified.
(j) In addition to, and not in lieu of any of the foregoing rights granted to Landlord:
(1) WHEN THIS LEASE OR TENANTS RIGHT OF POSSESSION SHALL BE TERMINATED BY COVENANT OR CONDITION BROKEN, OR FOR ANY OTHER REASON, EITHER DURING THE TERM OF THIS LEASE OR ANY RENEWAL OR EXTENSION THEREOF, AND ALSO WHEN AND AS SOON AS THE TERM HEREBY CREATED OR ANY EXTENSION THEREOF SHALL HAVE EXPIRED, IT SHALL BE LAWFUL FOR ANY ATTORNEY AS ATTORNEY FOR TENANT TO FILE AN AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN ACTION TO CONFESS JUDGMENT IN EJECTMENT AGAINST TENANT AND ALL PERSONS CLAIMING UNDER TENANT, WHEREUPON, IF LANDLORD SO DESIRES, A WRIT OF EXECUTION OR OF POSSESSION MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR WRIT OF PROCEEDINGS, WHATSOEVER, AND PROVIDED IF FOR ANY REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED THE SAME SHALL BE DETERMINED AND THE POSSESSION OF THE PREMISES HEREBY DEMISED REMAIN IN OR BE RESTORED TO TENANT, LANDLORD SHALL HAVE THE RIGHT UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON THE TERMINATION OF THIS LEASE AS HEREINBEFORE SET FORTH, TO BRING ONE OR MORE ACTION OR ACTIONS AS HEREINBEFORE SET FORTH TO RECOVER POSSESSION OF THE SAID PREMISES.
(2) In any action to confess judgment in ejectment, Landlord shall first cause to be filed in such action an affidavit made by it or someone acting for it setting forth the facts necessary to authorize the entry of judgment, of which facts such affidavit shall be conclusive evidence, and if a true copy of this Lease (and of the truth of the copy such affidavit shall be sufficient evidence) be filed in such action, it shall not be necessary to file the original as a warrant of attorney, any rule of Court, custom or practice to the contrary notwithstanding. Tenant represents to Landlord that it has a gross income of at least $10,000.
TENANT WAIVER. TENANT SPECIFICALLY ACKNOWLEDGES THAT TENANT HAS VOLUNTARILY, KNOWINGLY, AND INTELLIGENTLY WAIVED CERTAIN DUE PROCESS RIGHTS TO A PREJUDGMENT HEARING BY AGREEING TO THE TERMS OF THE FOREGOING PARAGRAPHS REGARDING CONFESSION OF JUDGMENT. TENANT FURTHER SPECIFICALLY AGREES THAT IN THE EVENT OF DEFAULT, LANDLORD MAY PURSUE MULTIPLE REMEDIES INCLUDING OBTAINING POSSESSION PURSUANT TO A JUDGMENT BY CONFESSION. FURTHERMORE, TENANT SPECIFICALLY WAIVES ANY CLAIM AGAINST LANDLORD AND LANDLORDS COUNSEL FOR VIOLATION OF TENANTS CONSTITUTIONAL RIGHTS IN THE EVENT THAT JUDGMENT IS CONFESSED PURSUANT TO THIS LEASE.
|TENANT: CABALETTA BIO, INC.|
(k) If Landlord defaults in the performance of any of its maintenance or repair obligations under this Lease, Tenant may send to Landlord written notice thereof, which notice must identify with reasonable specificity the default and Tenants remedies under this paragraph (Reminder Notice). If Landlord fails to either: (a) dispute the existence of such default within five (5) business days; or (b) cure such default within Landlords Cure Period, then Tenant will have all rights and remedies available at law or in equity for a landlord default. Landlords Cure Period means thirty (30) days after Landlords receipt of a Reminder Notice, provided if cure cannot be reasonably effected by Landlord within such thirty (30)-day period, Landlords Cure Period includes such additional time as may be reasonably necessary for Landlord to cure, provided Landlord commences to cure within such thirty (30)-day period and diligently prosecutes such cure to completion.
18. SURRENDER: HOLDOVER.
(a) By no later than the Expiration Date or earlier termination of Tenants right to possession of the Premises (such earlier date, the Surrender Date). Tenant shall vacate and surrender the Premises to Landlord in good order and condition, free of all Transferees, vacant, broom clean, and in conformity with the applicable provisions of this Lease, including without limitation Sections 9 and 11, ordinary wear and tear excepted and subject to Section 14 and Section 15. Tenant shall have no right to hold over beyond the Surrender Date, and if Tenant does not vacate as required such failure shall be deemed an Event of Default and Tenants occupancy shall not be construed to effect or constitute anything other than a tenancy at sufferance. During any period of occupancy beyond the Surrender Date, the amount of Rent owed by Tenant to Landlord will be the Holdover Percentage of the Rent for the month immediately prior to the Expiration Date, without prorating for any partial month of holdover, and except that any provisions in this Lease that limit the amount or defer the payment of
Additional Rent are null and void. The Holdover Percentage equals: (i) 150% for the first two (2) months of holdover; and (ii) 200% for any period of holdover beyond two (2) months. The acceptance of Rent by Landlord or the failure or delay of Landlord in notifying or evicting Tenant following the Surrender Date shall not create any tenancy rights in Tenant and any such payments by Tenant may be applied by Landlord against its reasonable costs and expenses, including reasonable attorneys fees, incurred by Landlord as a result of such holdover. The provisions of this Section shall not constitute a waiver by Landlord of any right of reentry as set forth in this Lease; nor shall receipt of any Rent or any other act in apparent affirmance of the tenancy operate as a waiver of Landlords right to terminate this Lease for a breach of any of the terms, covenants, or obligations herein on Tenants part to be performed. No option to extend this Lease shall have been deemed to have occurred by Tenants holdover, and any and all options to extend this Lease or expand the Premises shall be deemed terminated and of no further effect as of the first date that Tenant holds over. In addition, if Tenant fails to vacate and surrender the Premises as herein required, then Tenant shall indemnify, defend, and hold harmless Landlord from and against any and all costs, losses, expenses, or liabilities incurred as a result of or related to such failure, including without limitation, claims made by any succeeding tenant and real estate brokers claims and reasonable attorneys fees. Notwithstanding the foregoing, Tenant shall have no liability for consequential damages, including claims made by any succeeding tenant, unless Tenant fails to vacate and surrender the Premises as required herein within thirty (30) days after receipt of Landlords notice to vacate (which notice to vacate shall notify Tenant that its failure to timely vacate the Premises may result in lost leasing opportunities for Landlord and subject Tenant to liability for consequential damages). Tenants obligation to pay Rent and to perform all other Lease obligations for the period up to and including the Surrender Date, and the provisions of this Section, shall survive the Expiration Date. In no way shall the remedies to Landlord set forth above be construed to constitute liquidated damages for Landlords losses resulting from Tenants holdover.
(b) Prior to the Surrender Date, Tenant, at Tenants expense, shall remove from the Premises Tenants Property and restore in a good and workmanlike manner any damage to the Premises and/or the Building caused by such removal or replace the damaged component of the Premises and/or the Building if such component cannot be restored as aforesaid as reasonably determined by Landlord. Notwithstanding the foregoing, Tenant shall not be required to remove a Specialty Alteration if at the time Tenant requests Landlords consent to such Specialty Alteration, Tenant provides Landlord with written notification that Tenant desires to not be required to remove such Specialty Alteration and Landlord consents in writing to Tenants non-removal request. A Specialty Alteration means an Alteration that: (i) Landlord required to be removed in connection with Landlords consent to making such Alteration; or (ii) is not Building standard, including without limitation kitchens (other than a pantry installed for the use of Tenants employees only), executive restrooms, computer room installations, supplemental HVAC equipment and components, safes, vaults, libraries or file rooms requiring reinforcement of floors, internal staircases, slab penetrations, non-Building standard life safety systems, security systems, specialty door locksets (such as cipher locks) or lighting, and any demising improvements done by or on behalf of Tenant after the Commencement Date. If Tenant fails to remove any of Tenants Property, as required herein, the same shall be deemed abandoned and Landlord, at Tenants reasonable expense, may remove and dispose of same and repair and restore any damage caused thereby, or, at Landlords election, such Tenants Property, shall become Landlords property. Tenant shall not remove any Alteration (other than Specialty Alterations) from the Premises without the prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed.
19. RULES AND REGULATIONS. Tenant covenants that Tenant and Tenant Agents shall comply with the rules and regulations set forth on Exhibit E attached hereto. Landlord shall have the right to rescind and/or augment any of the rules and regulations and to make such other and further written rules and regulations as in the reasonable judgment of Landlord shall from time to time be needed for the safety, protection, care, and cleanliness of the Project, the operation thereof, the preservation of good order therein, and the protection and comfort of its tenants, their agents, employees, and invitees, which when delivered to Tenant shall be binding upon Tenant in a like manner as if originally prescribed. In the event of an inconsistency between the rules and regulations and this Lease, the provisions of this Lease shall control. Landlord shall not have any liability to Tenant for any failure of any other tenants to comply with any of the rules and regulations, but Landlord shall use commercially reasonable efforts to enforce the rules and regulations equally against all office tenants and occupants of the Building, subject to the terms of applicable leases.
20. GOVERNMENTAL REGULATIONS.
(a) Tenant shall not use, generate, manufacture, refine, transport, treat, store, handle, dispose, bring, or otherwise cause to be brought or permit any Tenant Agent to bring, in, on, or about any part of the Project, any hazardous waste, solid waste, hazardous substance, toxic substance, petroleum product or derivative, asbestos, polychlorinated biphenyl, hazardous material, pollutant, contaminant, or similar material or substance as defined by the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. Sections 9601 et seq., as the same may from time to time be amended, and the regulations promulgated pursuant thereto (CERCLA), or now or hereafter defined or regulated as such by any other Law (Hazardous Material). Notwithstanding the foregoing, Tenant shall be permitted to bring onto the Premises office cleaning supplies and products normally found in modem offices provided Tenant only brings a reasonable quantity of such supplies and products onto the Premises and Tenant shall at all times comply with all Laws pertaining to the storage, handling, use, disposal, and application of such supplies and products, and all Laws pertaining to the communication to employees and other third parties of any hazards associated with such supplies and products. Tenant shall not install any underground or above ground tanks on the Premises. Tenant shall not cause or permit to exist any release, spillage, emission, or discharge of any Hazardous Material on or about the Premises in violation of applicable Laws (Release). In the event of a Release, Tenant shall immediately notify Landlord both orally and in writing, report such Release to the relevant government agencies as required by applicable Law, and promptly remove the Hazardous Material and otherwise investigate and remediate the Release in accordance with applicable Law and to the satisfaction of Landlord. Landlord shall have the right, but not the obligation, to enter upon the Premises to investigate and/or remediate the Release in lieu of Tenant, and Tenant shall reimburse Landlord as Additional Rent for the reasonable costs of such remediation and investigation. Tenant shall promptly notify Landlord if Tenant acquires knowledge of the presence of any Hazardous Material on or about the Premises, except as Tenant is permitted to bring onto the Premises under this Lease. Landlord shall have the right to inspect (upon reasonable notice to Tenant) and assess the Premises for the purpose of determining whether Tenant is handling any Hazardous Material in violation of this Lease or
applicable Law, or to ascertain the presence of any Release. In exercising the foregoing rights, Landlord shall use its commercially reasonable efforts not to interfere with Tenants use and occupancy of the Premises. This subsection shall survive the Expiration Date. Landlord represents to Tenant to Landlords actual knowledge without independent investigation or inquiry that, as of the date of this Lease, it has no notice the presence of Hazardous Materials, in, on, or about the Premises or the Building in violation of environmental Laws. Landlord will take all remedial actions required by Laws with respect to any Hazardous Materials, in, on, or about the Building that are the responsibility of Landlord.
(b) Tenant shall, and shall cause Tenant Agents to, use the Premises in compliance with all applicable Laws. Tenant shall, at its sole cost and expense, promptly comply with each and all of such Laws, except in the case of required changes not triggered by Tenants particular use or manner of use or change in use of the Premises, or Tenants Alterations. Without limiting the generality of the foregoing, Tenant shall: (i) obtain, at Tenants expense, before engaging in Tenants business or profession within the Premises, all necessary licenses and permits including, but not limited to, state and local business licenses, and permits; and (ii) remain in compliance with and keep in full force and effect at all times all licenses, consents, and permits necessary for the lawful conduct of Tenants business or profession at the Premises. Tenant shall pay all personal property taxes, income taxes, gross receipts taxes, and other taxes, assessments, duties, impositions, and similar charges that are or may be assessed, levied, or imposed upon Tenant or Tenants Property. Tenant shall also comply with all applicable Laws that do not relate to the physical condition of the Premises and with which only the occupant can comply, such as laws governing maximum occupancy, workplace smoking, VDT regulations, and illegal business operations, such as gambling. The judgment of any court of competent jurisdiction or the admission of Tenant in any judicial, governmental or regulatory action, regardless of whether Landlord is a party thereto, that Tenant has violated any of such Laws shall be conclusive of that fact as between Landlord and Tenant.
(c) Notwithstanding anything to the contrary in this Lease, if the requirement of any public authority obligates either Landlord or Tenant to expend money in order to bring the Premises and/or any area of the Project into compliance with Laws as a result of: (i) Tenants particular use or Alteration of the Premises; (ii) Tenants change in the use of the Premises; (iii) any cause or condition created by or at the instance of Tenant or any Tenant Agent, other than by Landlords performance of any work for or on behalf of Tenant; or (iv) breach of any of Tenants obligations hereunder, then Tenant shall bear all costs of bringing the Premises and/or Project into compliance with Laws, whether such costs are related to structural or nonstructural elements of the Premises or Project.
(d) Except to the extent Tenant shall comply as set forth above, during the Term Landlord shall comply with all applicable Laws regarding the Project (including the Premises), including without limitation compliance with Title III of the Americans with Disabilities Act of 1990,42 U.S.C. §12181 et seq. and its regulations as to the design and construction of the Common Areas.
(e) Each party hereto hereby acknowledges and agrees that it will not knowingly violate any applicable Laws regarding bribery, corruption, and/or prohibited business practices as they concern each such partys respective activities under or in connection with this Lease, and each such party will be solely responsible for and will hold harmless the other party from and against any claims or liabilities in connection with any of such responsible partys own violations of any such Laws.
21. NOTICES. Wherever in this Lease it is 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 will be duly given or served if in writing and either: (i) personally served; (ii) delivered by prepaid nationally recognized courier service (e.g., Federal Express, UPS, and USPS) with evidence of receipt required for delivery; (iii) delivered by registered or certified mail, return receipt requested, postage prepaid; or (iv) if an email address is provided by the recipient, emailed with confirmation of receipt by the recipient; in all such cases addressed to the parties at the addresses set forth below. Each such notice will be deemed to have been given to or served upon the party to which addressed on the date the same is delivered or delivery is refused. Each party has the right to change its address for notices (provided such new address is in the continental United States) by a writing sent to the other party in accordance with this Section, and each party will, if requested, within ten (10) days confirm to the other its notice address. Notices from Landlord or Tenant may be given by either an agent or attorney acting on behalf of Landlord or Tenant.
Cabaletta Bio, Inc.
Attn: Steven Nichtberger, MD
2929 Arch Street
Philadelphia, PA 19104
With a copy to:
Steven Nichtberger, MD
01 Northwick Lane
Villanova, PA 19085
Brandywine Cira, L.P.
c/o Brandywine Realty Trust
Attn: Jeff DeVouno Evecutive Vice President & Senior Managing Director, RE: Building #150
FMC Tower at Cira Centre South
2929 Walnut St., Suite 1700
Philadelphia, PA 19104
Phone No. 610 ###-###-####
With a copy to:
Notwithstanding anything to the contrary in this Lease, billing statements and the like may be sent by regular mail or electronic means (such as email) to Tenants billing contact without copies.
Tenants billing contact:
Cabaletta Bio, Inc.
Attn: Steven Nichtberger, MD
2929 Arch Street
Philadelphia, PA 19104 Phone:
22. BROKERS. Landlord and Tenant each represents and warrants to the other that such representing party has had no dealings, negotiations, or consultations with respect to the Premises or this transaction with any broker or finder other than a Landlord affiliate and Broker. Each party shall indemnify, defend, and hold harmless the other from and against any and all liability, cost, and expense (including reasonable attorneys fees and court costs), arising out of or from or related to its misrepresentation or breach of warranty under this Section. Landlord shall pay Broker a commission in connection with this Lease pursuant to the terms of a separate written agreement between Landlord and Broker. This Section shall survive the Expiration Date.
23. LANDLORDS LIABILITY. Landlords obligations hereunder shall be binding upon Landlord only for the period of time that Landlord is in ownership of the Building, and upon termination of that ownership, Tenant, except as to any obligations that are then due and owing, shall look solely to Landlords successor-in-interest in ownership of the Building for the satisfaction of each and every obligation of Landlord hereunder (so long as Landlords successor assumes all of Landlords obligations hereunder). Upon request and without charge, Tenant shall attorn to any successor to Landlords interest in this Lease and, at the option of any Mortgagees, to such Mortgagees, so long as such successor entity(ies) agree(s) in writing to assume Landlords obligations under this Lease. Landlord may transfer its interest in the Building without the consent of Tenant, and such transfer or subsequent transfer shall not be deemed a violation on Landlords part of any of the terms of this Lease. Landlord shall have no personal liability under any of the terms, conditions, or covenants of this Lease. Tenant and Tenant Agents shall look solely to the equity of Landlord in the Building, all rents, issues and profits therefrom, and/or the net proceeds actually received therefrom for the satisfaction of any claim, remedy, or cause of action of any kind whatsoever arising from the relationship between the parties or any rights and obligations they may have relating to the Project, this Lease, or anything related to either, including without limitation as a result of the breach of any Section of this Lease by Landlord. In addition, no recourse shall be had for an obligation of Landlord hereunder, or for any claim based thereon or otherwise in respect thereof or the relationship between the parties, against any past, present, or future Landlord Indemnitee (other than Landlord), whether by virtue of any statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such other liability being expressly waived and released by Tenant with respect to the Landlord Indemnitees (other than Landlord).
24. RELOCATION. Landlord, at its sole expense, on at least six (6) months prior written notice to Tenant, may require Tenant to move from the Premises to another suite of substantially comparable size and decor in the Building. In the event of any such relocation, Landlord shall pay all the reasonable expenses: (a) of preparing and decorating the new premises so that they will be substantially similar to the Premises; (b) of moving Tenants
furniture and equipment to the new premises (including Tenants data and communication wiring and cabling); and (c) reasonably incurred and documented by Tenant, up to a maximum amount of $5,000.00, in notifying its clients of such relocation, obtaining new letterhead and business cards, and other incidental expenses related directly to Tenant s relocation. Tenant shall execute any reasonable amendment evidencing the terms of the relocation as Landlord may require in its reasonable discretion. Upon the effective date of the relocation: (i) the description of the Premises set forth in this Lease shall, without further act on the part of Landlord or Tenant, be deemed amended so that the new premises shall, for all purposes, be deemed the Premises hereunder, and all of the terms, covenants, conditions, provisions, and agreements of this Lease, including those agreements to pay Rent (at the same rate per rentable square foot except as set forth below), shall continue in full force and effect and shall apply to the new premises; provided, however, in no event shall the Fixed Rent payable by Tenant under the Lease or Tenants Share increase as a result of such relocation (if the new premises are smaller than the Premises, all rental charges which are based upon the square footage of the Premises shall be reduced accordingly); and (ii) Tenant shall move into the new premises. Notwithstanding the foregoing, Tenant shall have the right to terminate this Lease by written notice to Landlord within thirty (30) calendar days after receipt of Landlords notice of relocation; provided, however, Landlord shall have the right to rescind its relocation notice by notice to Tenant within fifteen (15) calendar days after receipt of Tenants notice of termination, in which case the Term and the Premises shall continue as if Landlord never sent a notice of relocation under this Section 24. If Tenant timely terminates this Lease pursuant to the foregoing and Landlord does not elect to rescind its relocation notice, the Term shall automatically end on the date set forth in Landlords notice as the relocation date as if the Term were originally scheduled to expire on such date, which date shall be deemed the Expiration Date under this Lease.
25. GENERAL PROVISIONS.
(a) Provided Tenant has performed all of the terms and conditions of this Lease to be performed by Tenant within all applicable notice and/or cure periods set forth herein, including the payment of Rent, Tenant shall peaceably and quietly hold and enjoy the Premises for the Term, without hindrance from Landlord or anyone lawfully or equitably claiming by, through, or under Landlord, under and subject to the terms and conditions of this Lease.
(b) Subject to the terms and provisions of Section 10. the respective rights and obligations provided in this Lease shall bind and inure to the benefit of the parties hereto, their successors and assigns.
(c) This Lease shall be governed in accordance with the Laws of the State, without regard to choice of law principles. Landlord and Tenant hereby consent to the exclusive jurisdiction of the state and federal courts located in the jurisdiction in which the Project is located.
(d) In connection with any litigation or arbitration arising out of this Lease, Landlord or Tenant, whichever is the prevailing party as determined by the trier of fact in such litigation, shall be entitled to recover from the other party all reasonable costs and expenses incurred by the prevailing party in connection with such litigation, including reasonable attorneys fees. If, in the context of a bankruptcy case, Landlord is compelled at any time to
incur any expense, including attorneys fees, in enforcing or attempting to enforce the terms of this Lease or to enforce or attempt to enforce any actions required under the Bankruptcy Code to be taken by the trustee or by Tenant, as debtor-in-possession, then the sum so paid by Landlord shall be awarded to Landlord by the Bankruptcy Court and shall be immediately due and payable by the trustee or by Tenants bankruptcy estate to Landlord in accordance with the terms of the order of the Bankruptcy Court.
(e) This Lease, which by this reference incorporates all exhibits, riders, schedules, and other attachments hereto, supersedes all prior discussions, proposals, negotiations and discussions between the parties and this Lease contains all of the agreements, conditions, understandings, representations, and warranties made between the parties hereto with respect to the subject matter hereof, and may not be modified orally or in any manner other than by an agreement in writing signed by both parties hereto or their respective successors-in-interest. Whenever placed before one or more items, the words include, includes, and including shall mean considered as part of a larger group, and not limited to the item(s) recited. Except to the extent expressly set forth otherwise in this Lease, neither Landlord, nor anyone acting on Landlords behalf, has made any representation, warranty, estimation, or promise of any kind or nature whatsoever relating to the physical condition of the Building or the land under the Building or suitability, including without limitation, the fitness of the Premises for Tenants intended use. If any provisions of this Lease are held to be invalid, void, or unenforceable, the remaining provisions hereof shall in no way be affected or impaired and such remaining provisions shall remain in full force and effect.
(f) TIME IS OF THE ESSENCE UNDER ALL PROVISIONS OF THIS LEASE, INCLUDING ALL NOTICE PROVISIONS.
(g) If Landlord or Tenant is in any way delayed or prevented from performing any obligation (except, with respect to Tenant, its obligations to pay Rent) due to fire or other casualty (or reasonable delays in the adjustment of insurance claims), acts of terrorism, war or other emergency (including severe weather emergency), governmental delay beyond what is commercially reasonable (provided the party claiming the delay provides reasonable evidence to the other party that the party claiming the delay is diligently pursuing the approval or permit that is the subject to the governmental delay), inability to obtain any materials or services, acts of God, strike, lockout or other labor dispute, orders or regulations of any federal, state, county or municipal authority, embargoes, or any other cause beyond such partys reasonable control (whether similar or dissimilar to the foregoing events) (each, a Force Maieure Event), then the time for performance of such obligation shall be excused for the period of such delay or prevention (and such party shall not be deemed in default with respect to the performance of its obligations) and extended for a period equal to the period of such delay or prevention. Financial disability or hardship shall never constitute a Force Majeure Event. No such inability or delay due to a Force Majeure Event shall constitute an actual or constructive eviction, in whole or in part, or entitle Tenant to any abatement or diminution of Rent, or relieve the other party from any of its obligations under this Lease, or impose any liability upon such party or its agents, by reason of inconvenience or annoyance to the other party, or injury to or interruption of the other partys business, or otherwise.
(h) Excepting payments of Fixed Rent, Operating Expenses, and utilities (which are to be paid as set forth in Section 4.5. and 6) and unless a specific time is otherwise set forth in this Lease for any Tenant payments, all amounts due from Tenant to Landlord shall be paid by Tenant to Landlord as Additional Rent within thirty (30) days after receipt of an invoice therefor.
(i) Unless Tenants financials are publicly available online at no cost to Landlord, within ten (10) days after written request by Landlord (but not more than once during any twelve (12)-month period except in the event of a sale, financing, or refinancing by Landlord of all or any portion of the Project), Tenant shall furnish to Landlord, Mortgagee, or Landlords prospective mortgagee or purchaser, reasonably requested financial information. In connection therewith and upon Tenants request, Landlord and Tenant shall execute a mutually acceptable confidentiality agreement on Landlords form therefor.
(j) Tenant represents and warrants to Landlord that: (i) Tenant was duly organized and is validly existing and in good standing under the Laws of the jurisdiction set forth for Tenant in the first sentence of this Lease; (ii) Tenant is legally authorized to do business in the State; (iii) the person(s) executing this Lease on behalf of Tenant is(are) duly authorized to do so; and (iv) Tenant has the full corporate or partnership power and authority to enter into this Lease and has taken all corporate or partnership action, as the case may be, necessary to carry out the transaction contemplated herein, so that when executed, this Lease constitutes a valid and binding obligation enforceable in accordance with its terms.
(k) If Tenant has removed all or substantially all of Tenants Property and there is one (1) month or less remaining in the Term, Landlord shall have the right to access and make improvements to the Premises in anticipation of reletting without affecting or modifying the Term or Rent, and without any additional notice to or consent of Tenant. Tenant shall have no rights in or to such improvements. Tenant hereby waives any claim of constructive eviction, early termination of this Lease, or reduction of Rent in connection with Landlord exercising such right.
(l) Each party hereto represents and warrants to the other that such party is not a party with whom the other is prohibited from doing business pursuant to the regulations of the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury, including those parties named on OFACs Specially Designated Nationals and Blocked Persons List. Each party hereto is currently in compliance with, and shall at all times during the Term remain in compliance with, the regulations of OFAC and any other governmental requirement relating thereto. Each party hereto shall defend, indemnify, and hold harmless the other from and against any and all claims, damages, losses, risks, liabilities, and expenses (including reasonable attorneys fees and costs) incurred by the other to the extent arising from or related to any breach of the foregoing certifications. The foregoing indemnity obligations shall survive the Expiration Date.
(m) Landlord shall have the right, to the extent required to be disclosed by Landlord or Landlords affiliates in connection with filings required by applicable Laws, including without limitation the Securities and Exchange Commission (SEC), without notice to Tenant to include in such securities filings general information relating to this Lease, including,
without limitation, Tenants name, the Building, and the square footage of the Premises. Except as required by Law, information relating to rates set forth in the Lease will not be released without Tenants prior written consent. Except as set forth in the preceding sentence, neither Tenant nor Landlord shall issue, or permit any broker, representative, or agent representing either party in connection with this Lease to issue: (i) any press release; or (ii) any other public disclosure regarding the specific terms of this Lease (or any amendments or modifications hereof), without the prior written approval of the other party, which approval shall not be unreasonably withheld, conditioned or delayed. The parties acknowledge that the transaction described in this Lease and the terms thereof (but not the existence thereof) are of a confidential nature and shall not be disclosed except to such partys employees, attorneys, accountants, consultants, advisors, affiliates, and actual and prospective purchasers, lenders, investors, subtenants and assignees (collectively, Permitted Parties), and except as, in the good faith judgment of Landlord or Tenant, may be required to enable Landlord or Tenant to comply with its obligations under Law or under laws and regulations of the SEC. Neither party may make any public disclosure of the specific terms of this Lease, except as required by Law, including without limitation SEC laws and regulations, or as otherwise provided in this paragraph.
(n) Neither Tenant, nor anyone acting through, under, or on behalf of Tenant, shall have the right to record this Lease, nor any memorandum, notice, affidavit, or other writing with respect thereto.
(o) Tenant shall not claim any money damages by way of setoff, counterclaim, or defense, based on any claim that Landlord unreasonably withheld its consent, in which case Tenants sole and exclusive remedy shall be an action for specific performance, injunction, or declaratory judgment. Notwithstanding the foregoing, if a court determines that Landlord acted maliciously or in bad faith in unreasonably withholding, conditioning, or delaying its consent or approval in an instance where Landlord was obligated not to unreasonably withheld, condition, or delay its consent or approval, then the limitation on damages and remedies provided for in this paragraph shall have no further application.
(p) All requests made to Landlord to perform repairs or furnish services, supplies, utilities, or freight elevator usage (if applicable), shall be made online to the extent available (currently such requests shall be made via http://etenants.com/, as the same may be modified by Landlord from time to time) otherwise via email or written communication to Landlords property manager for the Building. Whenever Tenant requests Landlord to take any action not required of Landlord under this Lease or give any consent required or permitted to be given by Landlord under this Lease (for example, a request for a Transfer consent, a consent to an Alteration, or a subordination of Landlords lien, but other than a request for services, supplies, or utilities which is governed by Section 7(b)). Tenant shall pay to Landlord for Landlords reasonable administrative and/or professional costs in connection with each such action or consent, including reasonable attorneys, engineers and/or architects fees (as applicable). The foregoing amount shall be paid by Tenant to Landlord within thirty (30) days after Landlords delivery to Tenant of an invoice for such amount. Tenant shall pay such amount without regard to whether Landlord takes the requested action or gives the requested consent.
(q) Tenant acknowledges and agrees that Landlord shall not be considered a business associate for any purpose under the Health Insurance Portability and Accountability Act of 1996 and all related implementing regulations and guidance.
(r) Tenant shall cause any work performed on behalf of Tenant to be performed by contractors who work in harmony, and shall not interfere, with any labor employed by Landlord or Landlords contractors. If at any time any of the contractors performing work on behalf of Tenant does not work in harmony or unreasonably interferes with any labor employed by Landlord, other tenants, or their respective mechanics or contractors, then the permission granted by Landlord to Tenant to do or cause any work to be done in or about the Premises may be withdrawn by Landlord with forty-eight (48) hours written notice to Tenant.
(s) This Lease may be executed in any number of counterparts, each of which shall be deemed to be an original as against any party whose signature appears thereon, and all of which shall together constitute one and the same instrument. The submission of this Lease by Landlord to Tenant for examination does not constitute a reservation of or option for the Premises or of any other space within the Building or in other buildings owned or managed by Landlord or its affiliates. This Lease shall not be binding nor shall either party have any obligations or liabilities or any rights with respect hereto, or with respect to the Premises, unless and until both parties have executed and delivered this Lease. The parties acknowledge and agree that notwithstanding any law or presumption to the contrary, the exchange of copies of this Lease and signature pages by electronic transmission shall constitute effective execution and delivery of this Lease for all purposes, and signatures of the parties hereto transmitted and/or produced electronically shall be deemed to be their original signature for all purposes.
(t) Landlord and persons authorized by Landlord may enter the Premises at all reasonable times upon reasonable advance notice or, in the case of an emergency, at any time without notice, for any commercially reasonable purpose, including without limitation to inspect the Premises, to make alterations or repairs that Landlord is required to make under this Lease, and to show the Premises to prospective purchasers, lenders, and prospective Tenants. Landlord shall not be liable for inconvenience to or disturbance of Tenant by reason of any such entry; provided, however, such access shall be done, so far as practicable, so as to not unreasonably interfere with Tenants use of the Premises.
(u) If more than one person executes this Lease as Tenant, each of them is jointly and severally liable for the keeping, observing, and performing of all of the terms, covenants, conditions, provisions, and agreements of this Lease to be kept, observed, and performed by Tenant.
(v) TO THE EXTENT PERMITTED BY APPLICABLE LAW, LANDLORD AND TENANT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY EITHER AGAINST THE OTHER ON ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, OR TENANTS USE OR OCCUPANCY OF THE BUILDING, ANY CLAIM OR INJURY OR DAMAGE, OR ANY EMERGENCY OR OTHER STATUTORY REMEDY WITH RESPECT THERETO. TENANT CONSENTS TO SERVICE OF PROCESS AND ANY PLEADING RELATING TO ANY SUCH ACTION AT
THE PREMISES; PROVIDED, HOWEVER, NOTHING HEREIN SHALL BE CONSTRUED AS REQUIRING SUCH SERVICE AT THE PREMISES. TENANT WAIVES ANY RIGHT TO RAISE ANY NONCOMPULSORY COUNTERCLAIM IN ANY SUMMARY OR EXPEDITED ACTION OR PROCEEDING INSTITUTED BY LANDLORD. LANDLORD, TENANT, ALL GUARANTORS, AND ALL GENERAL PARTNERS EACH WAIVES ANY OBJECTION TO THE VENUE OF ANY ACTION FILED IN ANY COURT SITUATED IN THE JURISDICTION IN WHICH THE BUILDING IS LOCATED, AND WAIVES ANY RIGHT, CLAIM, OR POWER UNDER THE DOCTRINE OF FORUM NON CONVENIENS OR OTHERWISE TO TRANSFER ANY SUCH ACTION TO ANY OTHER COURT.
(w) Except in connection with a Tenant holdover as set forth in, and subject to the terms and conditions in, Section 18 of the Lease, and notwithstanding anything to the contrary in this Lease, each party waives, and the other shall not be liable to the waiving party for, any claim against the other party or the other partys agents, invitees, employees, or contractors, for loss of business opportunity, loss of profits, loss of income, economic loss, consequential damages, or punitive damages; the foregoing waiver shall survive the expiration or sooner termination of this Lease.
(x) Landlord shall have no security interest or other lien in any equipment, fixtures, furniture, inventory, and other personal property or fixtures of Tenant situate in the Premises, and Landlord hereby waives and releases any such lien or right to lien. During the Term, Landlord will promptly execute any commercially reasonable form of release of Landlords lien as to any furniture, fixtures, equipment, inventory, and other personal property belonging to Tenant and located in the Premises, subject to Section 25(p) above.
(y) During the Term and subject to availability and Landlords rules and regulations therefor, Tenants employees who work in the Building shall have the nonexclusive, first-come, first-served use of any fitness facilities and cafeterias available to tenants that may from time to time exist in the Building. Tenant acknowledges that no such cafeteria exists on the date of this Lease. Any user of the fitness facility shall execute Landlords standard fitness center use agreement. Neither Landlord nor any Landlord Indemnitee (as defined in Section 13(a)) shall have any liability to Tenant or any Tenant Agent for any damage, injury, loss, expense, compensation, or claim whatsoever arising out of the use of such fitness facilities and cafeteria.
26. EXTENSION OPTION.
(a) Provided: (i) no Event of Default exists; and (ii) this Lease is in full force and effect, Tenant shall have the right to extend the Term (Extension Option) for sixty (60) months beyond the end of the Initial Term (Extension Term) by delivering Tenants written extension election notice (Extension Notice) to Landlord no later than the Extension Deadline and no earlier than six (6) months prior to the Extension Deadline, with time being of the essence. The Extension Deadline means the date that is eight (8) months prior to the expiration of the Initial Term. The terms and conditions of this Lease during the Extension Term shall remain unchanged except Tenant shall only be entitled to the one (1) Extension Term provided above, the annual Fixed Rent for the Extension Term shall be the Extension Rent (as defined below), the Expiration Date shall be the last day of the Extension Term (or such earlier
date of termination of this Lease pursuant to the terms hereof), and, except to the extent reflected in the Extension Rent, Landlord shall have no obligation to perform any tenant improvements to the Premises or provide any tenant improvement allowance to Tenant. Upon Tenants delivery of the Extension Notice, Tenant may not thereafter revoke its exercise of the Extension Option. Notwithstanding anything to the contrary in this Lease, Tenant shall have no right to extend the Term other than or beyond the one (1), sixty (60)-month Extension Term described in this paragraph.
(b) Extension Rent means the fair market extension term base rent for space comparable to the Premises in comparable buildings in the market in which the Project is located. In determining the Extension Rent, Landlord, Tenant and any broker shall take into account all relevant factors including, without limitation, prevailing market allowances and concessions for renewing tenants, space measurement methods and loss factors, the lease term, the size of the space, the location of the building(s), parking charges, the amenities offered at the building(s), the age of the building(s), and whether Project Expenses and other pass-through expenses are on a triple net, base year, expense stop or other basis. In lieu of directly providing any prevailing market allowances and/or concessions, Landlord may elect to reduce the Extension Rent by the economic equivalent thereof to reflect the fact that such allowances and concessions were not provided directly to Tenant. During the Extension Term, Tenant shall not be entitled to any tenant improvement allowances, free rent periods, or other economic concessions (if any) that Tenant was entitled to during the prior Term, except to the extent such items are indirectly incorporated into the Extension Rent as set forth in this Section. When the Extension Rent is being determined for the first year of the Extension Term, the Extension Rent for the second and all subsequent years of the Extension Term shall also be determined in accordance with the same procedures as are set forth herein and based upon the then prevailing annual rent escalation factor in the applicable leasing market.
(c) If Tenant timely exercises the Extension Option and Landlord and Tenant, after using their good faith efforts to do so, do not agree upon the Extension Rent in writing by the date that is the later of twenty (20) days after Landlords receipt of the Extension Notice or three (3) months prior to the Extension Deadline, then within fifteen (15) days after either party notifies the other in writing that such notifying party desires to determine the Extension Rent in accordance with the procedures set forth in this Section, Landlord and Tenant shall each deliver to the other party a written statement of such delivering partys determination of the Extension Rent, together with such supporting documentation as the delivering party desires to deliver. Within ten (10) days after such fifteen (15)-day period, Landlord and Tenant shall appoint a real estate broker having a minimum of ten (10) years experience in the market in which the Project is located who shall select either Landlords determination or Tenants determination, whichever the broker finds more accurately reflects the Extension Rent. The broker shall be instructed to notify Landlord and Tenant of such selection within ten (10) days after such brokers appointment. The broker shall have no power or authority to select any Extension Rent other than the Extension Rent submitted by Landlord or Tenant nor shall the broker have any power or authority to modify any of the provisions of this Lease, and the decision of the broker shall be final and binding upon Landlord and Tenant. If Landlord and Tenant do not timely agree in writing upon the appointment of the broker, Landlord shall submit to Tenant the names of three (3) qualified brokers with a minimum of ten (10) years experience in the market in which the Project is located, and Tenant shall have ten (10) days after receiving such names to notify
Landlord of which of the three (3) brokers Tenant selects to determine the Extension Rent. If Tenant fails to timely notify Landlord of Tenants selection, Landlord shall have the right to unilaterally appoint the broker. The fee and expenses of the broker shall be shared equally by Landlord and Tenant.
(d) Upon Tenants timely and proper exercise of the Extension Option pursuant to the terms above and satisfaction of the above conditions: (i) the Term shall include the Extension Term, subject only to the determination of Extension Rent; and (ii) upon Landlords request, Tenant shall execute prior to the expiration of the then-expiring Term, an appropriate amendment to this Lease, in form and content reasonably satisfactory to both Landlord and Tenant, memorializing the extension of the Term for the ensuing Extension Term (provided Tenants failure to execute such amendment shall not negate the effectiveness of Tenants exercise of the Extension Option).
27. RIGHT OF FIRST OFFER.
(a) Provided: (i) no Event of Default exists; and (ii) this Lease is in full force and effect, then during the Term (including the Extension Term) Landlord shall notify Tenant in writing (Landlords ROFO Notice) when any rentable space located contiguous to and on the same floor as the Premises (Potential ROFO Space) becomes available to lease (as defined below) from Landlord or Landlord reasonably anticipates that such space will become available to lease from Landlord. Landlords ROFO Notice shall identify the portion of the Potential ROFO Space that is available to lease (such identified space, ROFO Space), and include the anticipated availability date and basic economic terms for the lease of the ROFO Space and, subject to the terms and provisions of this Section, Tenant shall have the right (ROFO) to lease all (but not less than all) of the ROFO Space by delivering Tenants written notice of such election to Landlord (Tenants ROFO Notice) within ten (10) business days after Tenants receipt of Landlords ROFO Notice. Landlord acknowledges and agrees that the term of the Lease with respect to the ROFO Space identified in Landlords ROFO Notice shall be coterminous with the term of this Lease with respect to the Premises (and any renewals thereof).
(b) Upon Tenants delivery of Tenants ROFO Notice, Tenant may not thereafter revoke Tenants exercise of the ROFO. If an Event of Default exists at any time after Landlord receives Tenants ROFO Notice but before the first day that Tenant commences to lease the ROFO Space, Landlord, at Landlords option, shall have the right to nullify Tenants exercise of the ROFO with respect to the ROFO Space. If Tenant notifies Landlord that Tenant elects not to lease the ROFO Space or if Tenant fails to timely deliver Tenants ROFO Notice to Landlord with respect thereto, then Landlord shall have the right to enter into a lease agreement(s) for the ROFO Space under one or more leases containing such terms as Landlord deems acceptable in Landlords sole discretion, and the ROFO shall be void and have no further force or effect with respect to such space; provided, however, Tenant shall retain its right of first offer rights hereunder with respect to any part of the Potential ROFO Space that was not covered by Landlords ROFO Notice.
(c) The ROFO shall be subject, subordinate, and in all respects inferior to the rights of any third-party tenant leasing space at the Building as of the date of this Lease. Landlord may at any time choose to use any space that is or about to become vacant within the Building for marketing or property management purposes, or as a Building amenity or Common Area such as a fitness center or conference area, or to lease such space to an existing tenant of Landlord in connection with the relocation of such tenant, without in any such case notifying or offering such space to Tenant or giving rise to any right of Tenant hereunder. Space is available to lease if and when: (i) the lease for any tenant of all or a portion of the space expires or is otherwise terminated, provided space shall not be deemed to be or become available if the space is assigned or subleased by the tenant of the space, or relet by the tenant or subtenant of the space by renewal, extension, or new lease; and (ii) to the extent that all or a portion of the Potential ROFO Space is available to lease from Landlord as of the date of this Lease, Landlord has entered into a lease with a third-party tenant for such currently available ROFO Space after the date of this Lease and the term of that lease has expired (including, without limitation, the expiration of any lease term extension period(s), regardless of whether the extension right or agreement is contained in such lease or is agreed to at any time by Landlord and the tenant under such lease or otherwise) or been terminated.
(d) Except to the extent expressly set forth in Landlords ROFO Notice to the contrary, if Tenant elects to lease the ROFO Space, such space shall become subject to this Lease upon the same terms and conditions as are then applicable to the original Premises, except that Tenant shall take the ROFO Space in AS IS condition and Landlord shall have no obligation to make any improvements or alterations to the ROFO Space, and the term of Tenants lease of the ROFO Space shall be coterminous with this Lease (and any renewals thereof). Landlord shall determine the exact location of any demising walls (if any) for the ROFO Space. Tenant shall not be entitled to any tenant improvement allowances, free rent periods, or other special concessions granted to Tenant with respect to the original Premises. Upon Tenants leasing of the ROFO Space, the Premises shall include the ROFO Space and, except as otherwise set forth in this Section, all computations made under this Lease based upon or affected by the rentable area of the Premises shall be recomputed to include the ROFO Space.
(e) If Tenant timely exercises its right to lease the ROFO Space: (i) Tenants lease of the ROFO Space shall commence upon the later of: (A) the date of availability specified in Landlords ROFO Notice; or (B) the date Landlord tenders possession of the ROFO Space in vacant condition; and (ii) upon Landlords request, Tenant shall execute an appropriate amendment, in form and content reasonably satisfactory to both Landlord and Tenant, memorializing the expansion of the Premises as set forth in this Section (provided Tenants failure to execute such lease or amendment shall not negate the effectiveness of Tenants exercise of the ROFO).
28. TENANT CONFESSION CERTIFICATION: Tenant acknowledges and agrees that any failure of Tenant to execute Section 17 of this Lease shall be an absolute bar from Tenant (or Tenants successors or assigns) claiming, alleging or petitioning, including, but not limited to, in any petition to open said confession, that such Section is invalid and not binding upon Tenant (or Tenants successors or assigns).
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have executed this Lease under seal as of the day and year first- above stated.
BRANDYWINE CIRA, L.P.
CABALETTA BIO, INC.
|By: Brandwine Cira, L.L.C., its general partner|
|Name:||Stephen Rush||Name:||Steven Nichtberger|
|Exhibit A:||Location Plan of Premises|
|Exhibit B:||Form of COLT|
|Exhibit C:||Leasehold Improvements|
|Exhibit D:||Cleaning Specifications|
|Exhibit E:||Rules and Regulations|
FORM OF COLT
CONFIRMATION OF LEASE TERM
THIS CONFIRMATION OF LEASE TERM (COLT) is made as of between (Landlord) and (Tenant).
1. Landlord and Tenant are parties !o that certain lease dated (Lease Document), with respect to the premises described in the Lease Document, known as Suite consisting of approximately rentable square feet (Premises), located at .
2. All capitalized terms, if not defined in this COLT, have the meaning give such terms in the Lease Document.
3. Tenant has accepted possession of the Premises in their AS IS WHERE IS condition and all improvements required to be made by Landlord per the Lease Document have been completed.
4. The Lease Document provides for the commencement and expiration of the Term of the lease of the Premises, which Term commences and expires as follows:
a. Commencement of the Term of the Premises:
b. Expiration of the Term of the Premises:
5. The required amount of the Security Deposit and/or Letter of Credit per the Lease Document is $ . Tenant has delivered the Security Deposit and/or Letter of Credit per the Lease Document in the amount of $ .
6. The Building Number is and the Lease Number is . This information must accompany every payment c f Rent made by Tenant to Landlord per the Lease Document.
1. Landlord will, at its sole cost and expense and using Building-standard materials and finishes, complete the improvements in the Premises shown or described as Landlord Work on Exhibit C-1 attached hereto (Landlord Work). In addition, Landlord will, at Tenant sole cost and expense, complete the improvements in the Premises shown or described as Tenant Work on Exhibit C-1 attached hereto (Tenant Work). Landlord Work and Tenant Work are referred to herein collectively as the Leasehold Improvements, and Exhibit C-1 is referred to herein as the Scope of Work. The Leasehold Improvements shall expressly not include any finishes, materials, or improvements not specifically addressed and detailed on the Scope of Work. If any material revision to the Leasehold Improvements is deemed necessary by Landlord, such revision will be submitted to Tenant for approval, which approval may not be unreasonably withheld, conditioned, or delayed.
2. Substantial Completion means the date on which (i) the Leasehold Improvements have been completed except as set forth on the Punch List (as defined below), and (ii) Landlord has obtained a final inspection approval, or temporary or permanent certificate of occupancy from the applicable local governing authority for the Premises. Notwithstanding the foregoing, in the event of Tenant Delay (as defined below), Substantial Completion shall be deemed to be the date Substantial Completion would have occurred but for Tenant Delays. Landlord shall have no obligation to expend any funds, employ any additional labor, contract for overtime work, or otherwise take any action to compensate for any Tenant Delay. Tenant shall reimburse Landlord for any reasonable, incremental costs in labor, materials, and supplies incurred due to Tenant Delay. If issuance of governmental permits or approvals is conditioned upon Tenants installation of its equipment, racking, cabling, or furniture or completion of any other work or activity in the Premises for which Tenant is responsible, and the governmental authority will not issue such permits or approvals, or schedule an inspection of the Leasehold Improvements due to Tenants failure to complete any work, installation, or activity (including the installation of any telephone, telephone switching, telephone, data, and security cabling and systems, furniture, computers, servers, Tenants trade fixtures and other personal property installed (or to be installed) by or on behalf of Tenant in the Premises), then Substantial Completion is deemed to have occurred without Landlord having obtained such permits or approvals. Tenant Delay means any delay in Substantial Completion caused by Tenant or any Tenant Agent, including without limitation: (i) Tenants failure to provide any reasonably requested information or approvals related to the Leasehold Improvements within 3 business days after receipt of Landlords written request therefor; (ii) Tenants request for materials, finishes, or installations other than Landlords Building standard (unless set forth on the Scope of Work); and (iii) the performance or completion of any work, labor, or services by Tenant or any Tenant Agent that unreasonably interferes with the performance of the Leasehold Improvements. Tenant shall reimburse Landlord for any reasonable, incremental costs in labor, materials, and supplies incurred due to Tenant Delay.
3. Prior to delivery of possession of the Premises to Tenant, Landlord or Landlords architect will prepare a preliminary punch list in writing for Landlords and Tenants review, and Landlord and Tenant will examine the Premises and agree on a final punch list that specifies any items of work that require correction, repair, or replacement (Punch List). Tenant must approve the Punch List in writing within two (2) business days of the walkthrough. Landlord will use commercially reasonable efforts to complete the Punch List work within thirty (30) days.
4. Except as may be otherwise set forth in the Scope of Work, Tenant is solely responsible for the purchase and installation of all furniture and equipment, including without limitation its data/telecommunication systems and wiring at the Premises. Subject to Landlords reasonable approval, Tenant may use the vendor of its choice for such installation. Tenant must contact the municipality in which the Building is located for specific installation requirements, comply with all local rules and regulations, and obtain and pay for any and all required permits in connection therewith.
5. Tenant will have reasonable access to the Premises (Early Access) during completion of the Leasehold Improvements to coordinate installation of Tenants cabling and wiring and during the thirty (30)-day period immediately prior to Substantial Completion to install its furniture, fixtures, and equipment; provided in any such case Tenants Early Access does not interfere with, or delay completion of, the Leasehold Improvements, and Tenant first provides Landlord with a certificate of insurance as required under the Lease. All insurance, waiver, and indemnity provisions of the Lease will be in full force and effect during Early Access. Tenant must ensure that its phone/data, security, and other vendors comply with all applicable Laws and pull their permits and perform their work in conjunction with the Leasehold Improvements so as not to delay completion of the Leasehold Improvements and any and all inspections therefor. Any delay resulting from Early Access, including without limitation due to a Tenant vendors work delaying Landlords ability to obtain its permits, is deemed a Tenant Delay.
6. Tenant shall be solely responsible for all costs of Tenant Work (Tenant Improvement Costs), including without limitation the professional fees of any engineers, consultants, architects, and/or space planners engaged by Landlord and other professionals preparing and/or reviewing Exhibit C-2 and all costs in the permitting, demolition, construction, acquisition, and installation of Tenant Work, including, without limitation, contractor fees, overhead, and profit, and the cost of all labor and materials supplied by the general contractor engaged by Landlord, suppliers, independent contractors, and subcontractors arising in connection with Tenant Work; provided, however, in no event shall any supervisory or construction management fees by Landlord be included as part of the Tenant Improvement Costs. Tenant shall pay Tenant Improvement Costs to Landlord within thirty (30) days after receipt of an invoice therefor from time to time, provided Landlord shall have the right to invoice Tenant with respect to particular components of Tenant Work and the applicable amount of Tenant Improvement Costs (as reasonably determined by Landlord) upon substantial completion of such component. If Tenant fails to make any payment when due under this Exhibit, such failure shall be deemed a failure to make a Rent payment under the Lease.
7. Landlord shall obtain from its contractor a commercially customary one-year warranty for the Leasehold Improvements, and Landlord shall use commercially reasonable efforts to make a claim under such warranties on behalf of Tenant to the extent necessary.
RULES AND REGULATIONS
Sidewalks, entrances, passages, elevators, vestibules, stairways, corridors, halls, lobby, and any other part of the Building shall not be obstructed or encumbered by Tenant or used for any purpose other than ingress or egress to and from the Premises. Landlord shall have the right to control and operate the common portions of the Building and exterior facilities furnished for common use of the Buildings tenants (such as the eating, smoking, and parking areas) in such a manner as Landlord deems appropriate.
No awnings or other projections may be attached to the outside walls of the Building without the prior written consent of Landlord. All drapes and window blinds shall be of a quality, type, design, and color, and attached in a manner approved in writing by Landlord.
No showcases, display cases, or other articles may be put in front of or affixed to any part of the exterior of the Building, or placed in hallways or vestibules without the prior written consent of Landlord. All supplies shall be kept in designated storage areas. Tenant shall not use or permit the use of any portion of the Project for outdoor storage. No mats, trash, or other objects may be placed in the public corridors, hallways, stairs, or other common areas of the Building.
Restrooms and other plumbing fixtures shall not be used for any purposes other than those for which they were constructed, and no debris, rubbish, rags, or other substances may be thrown therein. Only standard toilet tissue may be flushed in commodes. All damage resulting from any misuse of these fixtures shall be the responsibility of the tenant who, or whose employees, agents, visitors, clients, or licensees, caused such damage. Bathing and changing of clothes is permitted only in designated shower/locker facilities, and is not permitted in restrooms.
Tenant shall not, without the prior written consent of Landlord, mark, paint, drill into, bore, cut, string wires, or in any way deface any part of the Premises or the Building except for the reasonable hanging of decorative or instructional materials on the walls of the Premises. Tenant shall remove seasonal decorations that are visible outside of the Premises within 30 days after the end of the applicable season.
Tenant shall not construct, install, maintain, use, or operate in any part of the Project any electrical device, wiring, or other apparatus in connection with a loud speaker system or other sound/communication system that may be heard outside the Premises.
No bicycles, mopeds, skateboards, scooters, or other vehicles may be brought into, used, or kept in or about the Building or in the common areas of the Project other than in locations specifically designated thereof. No animals or pets of any kind (other than a service animal performing a specified task), including without limitation fish, rodents, and birds, may be brought into, used, or kept in or about the Building. Rollerblading and roller skating is not permitted in the Building or in the common areas of the Project.
Tenant shall not cause or permit any unusual or objectionable odors to be produced upon or permeate from the Premises.
No space in the Project may be used for the manufacture of goods for sale in the ordinary course of business, or for sale at auction of merchandise, goods, or property of any kind.
Tenant shall not make any unseemly or disturbing noises, or disturb or interfere with the occupants of the Building or neighboring buildings or residences by voice, musical instrument, radio, talking machines, whistling, singing, lewd behavior, or in any other way. All passage through the Buildings hallways, elevators, and main lobby shall be conducted in a quiet, businesslike manner. Tenant shall not commit or suffer any waste upon the Premises, the Building, or the Project, or any nuisance, or do any other act or thing that may disturb the quiet enjoyment of any other tenant in the Building or Project.
Tenant shall not throw anything out of the doors, windows, or down corridors or stairs of the Building
Tenant shall not place, install, or operate in the Premises or in any part of the Project, any engine, stove, machinery, or electrical equipment not directly related to its business, including without limitation space heaters, coffee cup warmers, and small refrigerators, conduct mechanical operations, cook thereon or therein, or place or use in or about the Premises or the Project any explosives, gasoline, kerosene oil, acids, caustics, canned heat, charcoal, or any other flammable, explosive or hazardous material, without the prior written consent of Landlord. Notwithstanding the foregoing, Tenant shall have the right to install and use a coffee machine, microwave oven, toaster, ice maker, refrigerator, and/or vending machine in compliance with all applicable Laws in a kitchen or break room designated as such by Landlord, provided Tenant shall use only stainless steel braided hoses. All supply waterlines shall be of copper (not plastic) tubing.
No smoking (including without limitation of cigarettes, cigars, and e-cigarettes) is permitted anywhere in the Premises, the Building, or the Project, including but not limited to restrooms, hallways, elevators, stairs, lobby, exit and entrance vestibules, sidewalks, and parking lot areas, provided smoking shall be permitted in any Landlord-designated exterior smoking area. All cigarette ashes and butts shall be deposited in the containers provided for such disposal, and shall not be disposed of on sidewalks, parking lot areas, or toilets.
Tenant shall not install any additional locks or bolts of any kind upon any door or window of the Building without the prior written consent of Landlord. Tenant shall, upon the termination of its tenancy, return to Landlord all keys for the Premises, either furnished to or otherwise procured by Tenant, and all security access cards to the Building.
Tenant shall keep all doors to hallways and corridors closed during Business Hours except as they may be used for ingress or egress.
Tenant shall not use the name of the Building, Project, Landlord, or Landlords agents or affiliates in any way in connection with its business except as the address thereof. Landlord shall also have the right to prohibit any advertising by Tenant that, in Landlords sole opinion, tends to impair the reputation of the Building or its desirability as a building for offices, and upon written notice from Landlord, Tenant shall refrain from or discontinue such advertising.
Tenant shall be responsible for all security access cards issued to it, and shall secure the return of all security cards from all employees terminating employment with them. Lost cards shall cost $35.00 per card to replace. No person/company other than Building tenants and/or their employees may have security access cards unless Landlord grants prior written approval.
All deliveries to the Building that involve the use of a hand cart, hand truck, or other heavy equipment or device shall be made via the freight elevator, if such freight elevator exists in the Building. Tenant shall be responsible to Landlord for any loss or damage resulting from any deliveries made by or for Tenant to the Building. Tenant shall procure and deliver to Landlord a certificate of insurance from its movers, which certificate shall name Landlord as an additional insured.
Landlord reserves the right to inspect all freight to be brought into the Building, and to exclude from the Building all freight or other material that violates any of these rules and regulations.
Tenant shall refer all contractors, contractors representatives, and installation technicians rendering any service on or to the Premises, to Landlord for Landlords approval and supervision before performance of any contractual service or access to Building. This provision shall apply to all work performed in the Building including installation of telephones, telegraph equipment, electrical devices and attachments, and installations of any nature affecting floors, walls, woodwork, trim, windows, ceilings, equipment, or any other physical portion of the Building. Landlord reserves the right to require that all agents of contractors and vendors sign in and out of the Building.
If Tenant desires to introduce electrical, signaling, telegraphic, telephonic, protective alarm or other wires, apparatus or devices, Landlord shall direct where and how the same are to be placed, and except as so directed, no installation boring or cutting shall be permitted, without Landlords consent, not to be unreasonably withheld, conditioned, or delayed. Landlord shall have the right to prevent and to cut off the transmission of excessive or dangerous current of electricity or annoyances into or through the Building or the Premises and to require the changing of wiring connections or layout at Tenants expense, to the extent that Landlord may reasonably deem necessary, and further to require compliance with such reasonable and uniformly applied rules as Landlord may establish relating thereto, and in the event of non-compliance with the requirements or rules, Landlord shall have the right immediately to cut wiring or to do what it reasonably considers necessary to remove the danger, annoyance, or electrical interference with apparatus in any part of the Building. All wires installed by Tenant must be clearly tagged at the distributing boards and junction boxes and elsewhere where required by Landlord, with the suite number of the office to which such wires lead, and the purpose for which the wires respectively are used, together with the name of the concern, if any, operating such wires.
Landlord reserves the right to exclude from the Building at all times any person who is not known or does not properly identify himself or herself to Landlords management or security personnel.
Landlord may require, at its sole option, all persons entering the Building outside of Business Hours to register at the time they enter and at the time they leave the Building
No space within the Building or in the common areas such as the parking lot, may be used at any time for the purpose of lodging, sleeping or for any immoral or illegal purposes.
Tenant shall not use the hallways, stairs, lobby, or other common areas of the Building as lounging areas during breaks or during lunch periods.
No canvassing soliciting, or peddling is permitted in the Building or its common areas.
Tenant shall comply with all Laws regarding the collection, sorting separation, and recycling of garbage, trash, rubbish and other refuse, and Landlords recycling policy for die Building.
Landlord does not maintain suite finishes that are non-standard, such as kitchens, bathrooms, wallpaper, special lights, etc. However, should the need arise for repair of items not maintained by Landlord, Landlord at its sole option, may arrange for the work to be done at tenants expense.
Tenant shall clean at least once a year, at its expense, drapes in the Premises that are visible from the exterior of the Building.
No pictures, signage, advertising decals, banners, etc. may be placed in or on windows in such a manner as they are visible from the exterior, without the prior written consent of Landlord.
Tenant is prohibited at all times from eating or drinking in hallways, elevators, restrooms, lobbies, or lobby vestibules outside of the Premises. Food storage shall be limited to a Landlord-approved kitchen or break room.
Tenant shall be responsible to Landlord for any acts of vandalism performed in the Building by its employees, invitees, agents, contractors, licensees, subtenants, and assignees.
Tenant shall not permit the visit to the Premises of persons in such numbers or under such conditions as to interfere with the use and enjoyment by other tenants of the entrances, hallways, elevators, lobby, exterior common areas, or other public portions or facilities of the Building.
Landlords employees shall not perform any work or do anything outside of their regular duties unless under special instructions from Landlord. Requests for such requirements shall be submitted in writing to Landlord.
Tenant is prohibited from interfering in any manner with the installation and/or maintenance of the heating air conditioning and ventilation facilities and equipment at the Project.
Landlord shall not be responsible for lost or stolen personal property, equipment, money, or jewelry regardless of whether such loss occurs when an area is locked against entry or not.
Landlord shall not permit entrance to the Premises by use of pass key controlled by Landlord, to any person at any time without written permission of Tenant, except employees, contractors or service personnel supervised or employed by Landlord.
Tenant shall observe and comply with the driving and parking signs and markers on the Project grounds and surrounding areas. Tenant shall comply with all reasonable and uniformly applied parking regulations promulgated by Landlord from time to time for the orderly use of vehicle parking areas. Parked vehicles shall not be used for vending or any other business or other activity while parked in the parking areas. Vehicles shall be parked only in striped parking spaces, except for loading and unloading, which shall occur solely in zones marked for such purpose, and be so conducted as to not unreasonably interfere with traffic flow or with loading and unloading areas of other tenants. Tractor trailers shall be parked in areas designated for tractor trailer parking. Employee and tenant vehicles shall not be parked in spaces marked for visitor parking or other specific use. All vehicles entering or parking in the parking areas shall do so at owners sole risk and Landlord assumes no responsibility for any damage, destruction, vandalism, or theft. Tenant shall cooperate with Landlord in any reasonable and uniformly applied measures implemented by Landlord to control abuse of the parking areas, including without limitation access control programs, tenant and guest vehicle identification programs, and validated parking programs, provided no such validated parking program shall result in Tenant being charged for spaces to which it has a right to free use under the Lease. Each vehicle owner shall promptly respond to any sounding vehicle alarm or horn, and failure to do so may result in temporary or permanent exclusion of such vehicle from the parking areas. Any vehicle that violates the parking regulations may be cited, towed at the expense of the owner, temporarily or permanently excluded from the parking areas, or subject to other lawful consequence.
Tenant shall not enter other separate tenants hallways, restrooms, or premises except with prior written approval from Landlords management.
Tenant shall not place weights anywhere beyond the load-per-square-foot carrying capacity of the Building.
Tenant shall comply with all laws, regulations, or other governmental requirements with respect to energy savings, not permit any waste of any utility services provided Landlord, and cooperate with Landlord fully to ensure the most effective and efficient operation of the Building.
The finishes, including floor and wall coverings, and the furnishings and fixtures in any areas of the Premises that are visible from the common areas of the Building are subject to Landlords approval in its sole discretion Selections for these areas shall be pre-approved in writing by Landlord.
Power strips and extension cords shall not be combined (also known as daisy chaining).
Candles and open flames are prohibited in the Building.
Guns, firearms, and other dangerous weapons (concealed or otherwise) are not allowed at the Project, subject to applicable Law (if any) requiring Landlord to so permit at the Project.
Landlord reserves the right to rescind any of these rules and make such other and further rules and regulations as in the judgment of Landlord shall from time to time be needed for the safety, protection, care, and cleanliness of the Project, the operations thereof, the preservation of good order therein, and the protection and comfort of its tenants, their agents, employees, and invitees, which rules when made and notice thereof given to Tenant shall be binding upon Tenant in a like manner as if originally prescribed. As used in these rules and regulations, capitalized terms shall have the respective meanings given to them in the Lease to which these rules and regulations are attached, provided Tenant shall be responsible for compliance herewith by everyone under Tenants reasonable control, including without limitation its employees, invitees, agents, contractors, licensees, subtenants and assignees, and a violation of these rules and regulations by any of the foregoing is deemed a violation by Tenant.