LEASE
This LEASE made as of this 3rd day of February, 1998, between FIRST
INDUSTRIAL HARRISBURG, L.P., a Delaware limited partnership (the
"Landlord"), and SED INTERNATIONAL, INC., a Delaware corporation (the
"Tenant").
B A C K G R O U N D
The Premises (hereinafter defined) is a portion of certain property
(the "Property") located in Middletown, Lower Swatara Township, Dauphin
County, Pennsylvania. The Property currently consists of the land,
buildings and improvements depicted on the site plan attached to this Lease
as Exhibit "Site Plan," and is more particularly described on
Exhibit "Legal Description". Tenant desires to lease that portion of the
Property consisting of 103,217 square feet of Building 1 ("Building 1") on
the Property, as more particularly shown on Exhibit "Premises" (the
"Premises").
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
ARTICLE I
Term/Demise
0.1. Landlord leases the Premises to Tenant, and Tenant leases
the Premises from Landlord, upon the terms and conditions of this
Lease, for a term (the "Term") commencing on the Commencement Date
(hereinafter defined) and expiring on the last day of the sixty-first
(61st) calendar month following the Commencement Date, together with
the non-exclusive right to use only for their intended purposes the
roads, sidewalks, driveways, parking areas and landscaped areas
intended for the common use of the tenants of the Property and others
to whom Landlord has granted or may grant (subject to the provisions
of Section 27.1) such rights (the "Common Areas"), except that Tenant
shall not have any right to use the cross-hatched area shown on
Exhibit "Site Plan".
0.2. Landlord shall prepare the Premises for Tenant's initial
occupancy in accordance with the plans and specifications for the
Premises, which plans and specifications are attached hereto as
Exhibit "Specifications" (the "Specifications"). Landlord reserves the
right, however; (a) to make substitutions of material of equivalent
grade and quality when and if specified material shall not be readily
and reasonably available, and (b) to make reasonable changes
necessitated by conditions met in the course of construction which
changes shall not substantially deviate from the intended results of
the Specifications. The Premises shall be deemed to be substantially
completed on the later of (i) the date when the Township of Lower
Swatara, Pennsylvania issues a certificate of occupancy for the
Premises and (ii) the date that all of the Premises heating,
ventilating, air-conditioning, plumbing, lighting, life safety,
mechanical and electrical systems are operational (the "Substantial
Completion Date"). Landlord shall give Tenant notice of the
Substantial Completion Date.
The Term shall commence and Rent (as hereinafter defined) shall begin
to accrue on the Commencement Date (the "Commencement Date") which shall be
the earlier of (i) two (2) days after the date of Substantial Completion or
(ii) the date Tenant takes possession of any portion of the Premises.
Landlord shall confirm the Commencement Date to Tenant in writing.
Within ten (10) days after the Commencement Date, Landlord and Tenant,
and their respective construction representatives, shall inspect the
Premises and shall prepare a punchlist of work required under Section this
1.2 not then actually completed by Landlord (the "Punchlist Inspection").
Landlord agrees that Landlord shall complete with commercially reasonable
speed and diligence the items specified on such punchlist. Provided
that Tenant notifies Landlord within sixty (60) days after the Commencement
Date of latent defects in work required under this Section 1.2 which could
not have been reasonably discovered at the time of the Punchlist
Inspection, Landlord shall correct with commercially reasonable speed and
diligence any such latent defects of which Landlord is notified within
sixty (60) days after the Commencement Date.
0.3. Tenant and its agent shall have the right to enter and
perform work at the Premises prior to the Commencement Date in order
to prepare the Premises for occupancy, provided that Tenant shall not
interfere with Landlord's work at the Premises. Any such early entry
by Tenant shall be subject to the provisions of this Lease, except
that such early entry shall not (i) constitute taking possession of
the Premises by Tenant nor (ii) accelerate the Commencement Date or
require the payment by Tenant of rent or any other amounts payable by
Tenant hereunder.
0.4. Landlord presently estimates that the date of Substantial
Completion will be March 1, 1998 (the "Scheduled Commencement Date").
If the Premises are not substantially completed by the Scheduled
Commencement Date because of delays due to governmental regulation,
Tenant Delay (hereinafter defined), unusual scarcity of or inability
to obtain labor or materials, labor difficulties, casualty or any
other causes whether or not within Landlord's reasonable control,
Landlord shall not be subject to any liability to Tenant. Except as
hereinafter provided in this Section 1.4 or Section 1.5, no such
failure to complete the Premises by the Scheduled Commencement Date
shall in any respect affect the validity of this Lease or any
obligation of the Tenant hereunder. If the delay did not result from
a Tenant Delay, the Rent reserved and covenanted to be paid herein
shall not commence (which, except as hereinafter provided in this
Section 1.4, shall be Tenant's sole and exclusive remedy for such
delay) until the Substantial Completion Date of the Premises. In the
event of any Tenant Delay, Tenant acknowledges that the Commencement
Date of the Term and Tenant's obligation to pay Rent due hereunder
shall begin on such date as the Commencement Date would have occurred
but for such Tenant Delay. As used in this Lease, the term "Tenant
Delay" shall mean any delays resulting in changes in the work to be
performed by Landlord which are required by Tenant or any delays
resulting from any activity or the performance of any work in or about
the Premises by Tenant or any of its employees, agents or contractors.
0.5. If the Premises are not substantially completed by May 15,
1998 (which date shall be extended by the length of any delays in
completion of the Premises attributable to governmental regulation,
Tenant Delays, unusual scarcity of or inability to obtain labor or
materials, labor difficulties, casualty, or any other causes not
within Landlord's reasonable control), Tenant shall have the right to
terminate this Lease by providing written notice of such termination
to Landlord at any time prior to substantial completion of the
Premises, in which event neither party shall have any further
obligation hereunder.
ARTICLE II
Use
0.6. Tenant shall use the Premises only for warehousing and
distributing Tenant's products that are not Hazardous Materials
(hereinafter defined), with appurtenant offices and sales personnel
offices and for the assembly of computers, and for no other purposes.
ARTICLE III
Rent
0.7. Tenant agrees to pay to Landlord, promptly when due, without
notice or demand and without deduction or setoff of any amount for any
reason whatsoever, except as provided in Section 20.7, as basic rent
for the Premises ("Basic Rent") during the Term the total amount of
$2,032,342.60 for the Term in monthly installments as set forth on
Exhibit "Basic Rent" attached hereto and hereby made a part hereof.
0.8. Basic Rent is payable in monthly installments as set forth
on Exhibit "Basic Rent" in advance, on or before the first day of each
calendar month during the Term. Notwithstanding anything to the
contrary set forth in the Lease, Tenant shall not be obligated to pay
Basic Rent for the first (1st) calendar month of the Term.
0.9. All amounts payable by Tenant to Landlord under the terms of
this Lease shall be paid to Landlord at 000 Xxxxx Xxxxxx Xxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, or to such other entity or place as
Landlord may from time to time designate by written notice to Tenant.
0.10. All amounts payable by Tenant pursuant to this Lease other
than Basic Rent are additional rent ("Additional Rent") (Basic Rent
and Additional Rent collectively being referred to as "Rent"), and
Landlord shall have the same rights and
remedies for nonpayment of Additional Rent as Landlord has for
nonpayment of Basic Rent.
ARTICLE IV
Taxes; Utilities
0.11. Throughout the Term, Tenant shall pay to Landlord Tenant's
Tax Proportionate Share of all Taxes (as those terms are defined
below). Tenant shall pay to Landlord, at the time when the monthly
installment of Basic Rent is payable, an amount equal to one-twelfth
(1/12th) of Tenant's Tax Proportionate Share of the estimated annual
Taxes for each Tax Year during the Term as reasonably estimated by
Landlord. Upon Tenant's request, Landlord shall provide to Tenant
copies of the tax assessor's bills upon which Tenant's Tax
Proportionate Share is based and Landlord's calculation setting forth
in reasonable detail the manner in which Tenant's Tax Proportionate
Share was estimated. Tenant shall also pay to Landlord, within ten
(10) days after receipt of Landlord's notice (which notice shall
include copies of the tax assessors' bills on which Tenant's Tax
Proportionate Share were based and shall set forth in reasonable
detail the manner in which Tenant's Tax Proportionate Share was
calculated), the amount, if any, by which Tenant's Tax Proportionate
Share of the Taxes becoming due exceeds the monthly payments on
account thereof previously made by Tenant to Landlord pursuant to the
preceding sentence. Any overpayment of Taxes shall be credited
against the next installments of Taxes due hereunder or, upon the
expiration of the Term, repaid to Tenant (net of any sums due to
Landlord under this Lease) upon the later of (a) within thirty (30)
days after expiration or earlier termination of the Term or (b) at the
time such excess is refunded by any mortgagee escrowing Taxes to
Landlord, but in no event later than sixty (60) days after the
expiration or earlier termination of the Term. The amounts paid by
Tenant pursuant to this Section 4.1 shall be used to pay the Taxes,
but such amounts shall not be deemed to be trust funds and no interest
shall be payable thereon. Taxes payable for the Tax Years in which
the Term begins and ends shall be prorated to correspond to that
portion of such Tax Years occurring within the Term (calculated on the
basis of 365 day Tax Years). Provided that Tenant pays Tenant's Tax
Proportionate Share when due under the terms of this Lease, Tenant
shall not in any event be liable for the payment of any interest or
penalties on Taxes.
As used in this Lease, the term "Taxes" means all taxes, liens,
charges, imposts and burdens, general and special assessments of every kind
and nature, ordinary and extraordinary, assessed or imposed by any
governmental authority on or with respect to the Premises or the Lot 2
Property (herein defined), or both, which Landlord shall become obligated
to pay because of or in connection with the ownership, leasing and
operating of the Premises or the Lot 2 Property, or both, including any
such Taxes which are levied or assessed in lieu of all or any part of Taxes
or an increase in Taxes as provided in Section 4.2. Notwithstanding any
contrary provision contained herein, Taxes shall not include increases that
result from the sale or other transfer of the Premises, Building 1, the
Property, or any portion of or any interest in any of the foregoing, or of
any interest in Landlord.
As used in this Lease, the term "Lot 2 Property" shall mean Tax Parcel
00-000-000, and all buildings and other improvements now or hereafter
constructed thereon, consisting of approximately 68.73 acres shown as Lot 2
on Exhibit "Site Plan."
As used in this Lease, the term "Tax Year" shall mean each calendar
year, or such other period of twelve (12) months as hereafter may be duly
adopted by any applicable governmental or quasi-governmental body or
authority or special service district imposing Taxes on the Property or
Premises, or both, as its fiscal year for purposes of Taxes, occurring
during the Term.
As used in this Lease, the term "Tenant's Tax Proportionate Share"
means the ratio that the number of rentable square feet in the Premises
bears to the number of rentable square feet of building space on the Lot 2
Property, as such number may change from time to time.
0.12. Nothing herein contained shall be interpreted as requiring
Tenant to pay any income, excess profits, corporate capital stock, or
franchise tax imposed or assessed upon Landlord, unless such tax or
any similar tax is levied or assessed in lieu of all or any part of
any Taxes or an increase in any Taxes. If under the requirements of
any state or local laws with respect to such new method of taxation,
Tenant is prohibited from paying such new tax which is in lieu of all
or any part of any Taxes or any increase in Taxes, Landlord may, at
its election, terminate this Lease and require that Tenant enter into
a new lease for the balance of the Term, upon all of the same terms
and conditions as this Lease, but which provides for a net rent to
Landlord after the imposition of such tax, which is equal to the Rent
payable hereunder, or Landlord may elect to amend this Lease to
achieve the same economic result.
0.13. Notwithstanding the foregoing provisions of this Article
IV, Landlord from time to time during the Term may elect to waive the
requirement for payment of monthly installments on account of Taxes
and, in such case, Tenant shall pay the full amount of Tenant's Tax
Proportionate Share of unpaid Taxes for the then-current Tax Year
within fifteen (15) days after Tenant receives any xxxx for Taxes from
Landlord which, notwithstanding the foregoing, may be sent to Tenant
at any time and from time to time for any Tax Year. Such election by
Landlord shall not preclude Landlord from thereafter requiring Tenant
to commence paying monthly installments on account of Taxes as set
forth above in this Article IV.
0.14. Tenant shall, prior to any late payment or delinquency
dates, pay all charges for any utility services at the Premises which
are separately metered or submetered, including, without limitation,
any of the following which are metered or submetered: water, sewer,
electricity, gas, fuel, heat and telephone. Utilities provided to
Tenant in common with other tenants of Building 1 shall be included in
Operating Expenses. Landlord is not required to furnish to Tenant any
of the foregoing or other facilities or services of any kind
whatsoever. Landlord reserves the right, without any liability to
Tenant and without affecting Tenant's covenants and obligations under
this Lease, to stop service of the HVAC, electric, sanitary, elevator
(if any), or other systems serving the Premises, or to stop any other
services required by Landlord under this
Lease, whenever and for so long as may be necessary by reason of (a)
accidents, emergencies, strikes, or the making of repairs or changes
which Landlord in good xxxxx xxxxx necessary or (b) any other cause
beyond Landlord's reasonable control. Further, it is also understood
and agreed that Landlord shall have no liability or responsibility for
a cessation of services to the Premises or to the Property that occurs
as a result of causes beyond Landlord's reasonable control. No such
interruption of service shall be deemed an eviction or disturbance of
Tenant's use and possession of the Premises or any part thereof, or
render Landlord liable to Tenant for damages, or relieve Tenant from
performance of Tenant's obligations under this Lease, including, but
not limited to, the obligation to pay Rent.
1.
ARTICLE V
Insurance and Restoration
1.1. Landlord shall maintain and keep in effect or cause to be
maintained and kept in effect such insurance as it deems commercially
reasonable, including, without limitation, (a) insurance against loss
or damage to the Premises or other buildings and improvements on the
Property owned by Landlord by fire and such other casualties as may be
included within fire and extended coverage insurance, in an amount
equal to the full replacement costs of such buildings and
improvements, (b) rent insurance against loss of Rent paid by Tenant
due to loss or damage to the buildings on the Property owned by
Landlord by fire and such other casualties as may be included within
fire and extended coverage insurance, (c) commercial general liability
insurance against claims for bodily injury, death and property damage
in and about the Property owned by Landlord, and (d) commercial
general liability insurance against claims for bodily injury, death
and property damage in and about the Common Areas.
1.2. Throughout the Term, Tenant shall pay to Landlord as
Additional Rent and as part of Tenant's Proportionate Share of
Operating Expenses payable under Article X, Tenant's Operating Expense
Proportionate Share of all premiums to be paid by Landlord for all
insurance maintained by Landlord pursuant to Section 5.1.
1.3. Tenant, at Tenant's sole cost and expense, shall maintain
and keep in effect the following insurance coverages throughout the
Term:
(a) insurance against liability for bodily injury
(including death) and property damage in or about the Property under a
policy of commercial general liability insurance and umbrella
liability (if necessary), on an occurrence basis (and including,
without limitation, contractual liability coverage for liabilities
assumed by Tenant under this Lease) and with such limits as to each as
may be reasonably required by Landlord from time to time, but not less
than $5,000,000, combined single limit each occurrence;
(b) business automobile liability insurance including
owned, hired and non-owned automobiles, on an occurrence basis and
with such limits as may be reasonably required by Landlord from time
to time, but not less than $5,000,000 combined single limit;
(c) causes of loss-special form insurance upon Tenant's
personal property, fixtures and leasehold improvements and items
stored on the Premises by Tenant for the full replacement costs
thereof (subject, however, to the deductible permitted under Section
5.4);
(d) workers' compensation insurance in statutorily required
amounts and employers liability (with umbrella liability if
necessary), with such limits as may be reasonably required by Landlord
from time to time, but not less than $1,000,000 each accident/disease
- policy limit/disease - each employee; and
(e) at any time that the Premises shall be used to for the
storage of property of persons other than Tenant, warehouseman's legal
liability insurance (with umbrella liability, if necessary) in an
amount equal to the greater of $1,000,000 or the full replacement
value of property of others in the care, custody, and control of
Tenant in, on, or about the Premises;
(f) loss-of-income insurance in an amount sufficient to
assure that Landlord shall recover the loss of Rent due and owing
under this Lease for a period of at least twelve (12) consecutive
months; and
(g) such other policies as are (a) reasonably required by
Landlord or any mortgagee and that is of a type then generally
required o similar tenants leasing comparable space in projects
similar to the Property, or (b) required by insurers by reason of
Tenant's specific use of or activities at the Premises.
1.4. The policies of insurance required pursuant to Section 5.3
shall name Landlord, and Landlord's mortgagees as additional insured
parties, as their interests may appear. Each policy of insurance
required by Section 5.3 shall provide that it shall not be canceled
without at least thirty (30) days prior written notice to Landlord and
to any mortgagee named in any endorsement thereto; shall contain the
insurer's waiver of subrogation against Landlord; shall be issued by
an insurer licensed to do business in Pennsylvania and reasonably
acceptable to Landlord and Landlord's mortgagee; and shall be in a
form reasonably satisfactory to Landlord. Each policy shall provide
that no act or omission of Tenant shall affect the obligation of the
insurer to pay the full amount of any loss sustained. The total
amount of any deductible under any policy of insurance which Tenant is
required to maintain pursuant to Section 5.3 shall be no more than
$25,000.00.
1.5. Prior to the Commencement Date, and at least thirty (30)
days prior to the expiration of each policy required under this
Article, Tenant shall deliver to Landlord certificates in form
reasonably acceptable to Landlord evidencing the foregoing insurance
or renewal thereof, as the case may be.
1.6. Each of the parties hereto hereby releases the other, and
shall obtain a waiver of subrogation from its insurer, to the extent
of the releasing party's required insurance coverage under Sections
5.1 and 5.3 and all deductibles, from any and all liability for, or
right of recovery against, any loss or damage covered by such
insurance which may be inflicted upon the property of such party, or
which may be claimed for bodily injury or death, even if such claim,
loss or damage shall be brought about by the fault or negligence of
the other party, its agents or employees.
In addition to the foregoing, Tenant hereby releases Landlord from all
claims for loss
of profits or earnings which would be covered under a policy of business
interruption insurance in an amount sufficient to reimburse Tenant for loss
of earnings attributable to loss of occupancy of the Premises for a period
of at least one year, as a result of perils included in a standard
comprehensive fire or casualty insurance policy or in a business or
rent interruption insurance policy. The foregoing release shall apply even
if such fire or other casualty shall have been caused by the fault or
negligence of Landlord or anyone for whom Landlord is responsible, and
shall apply irrespective of whether Tenant is insured for such loss.
1.7. Tenant will not do anything which would prevent Landlord
from procuring either fire insurance on the Premises or public
liability insurance with respect to the Property from companies and in
a form satisfactory to Landlord. If Tenant shall cause the rate for
any insurance maintained by Landlord to be increased, Tenant will pay
the amount of such increase as Additional Rent within ten (10) days
after being billed therefor.
1.8.
(a) In the event of damage to or destruction of the
Premises caused by fire or other casualty, Landlord shall undertake to
make repairs as hereinafter provided, unless this Lease is terminated
by Landlord or Tenant. In the event that such damage or destruction
is due to the negligence or willful misconduct of Tenant, Tenant shall
be responsible for the first costs incurred for such repairs, up to
the amount of the deductible of Landlord's insurance, not to exceed
$25,000.
(b) If (a) the damage is of such nature or extent, in the
opinion of Landlord's architect or contractor, that (i) more than one
hundred eighty (180) consecutive days, after commencement of the work,
would be required (with normal work crews and hours) to repair and
restore the part of the Premises which has been damaged, or (ii) such
restoration or repairs require the expenditure of more than fifty
percent (50%) of the full replacement cost of the Premises prior to
such casualty or (b) less than two (2) years remain on the Term, and
Landlord reasonably estimates that the restoration will take one
hundred and twenty (120) days or more after the commencement of the
work, Landlord shall so advise Tenant promptly, and either party, for
a period of thirty (30) days thereafter, shall have the right to
terminate this Lease by written notice to the other, as of the date
specified in such notice, which termination date shall be no later
than thirty (30) days after the date of such notice.
1.9. In the event of such fire or other casualty, if this Lease
is not terminated pursuant to the terms of Section 5.8, and if this
Lease is then in full force and effect, and after the collection of
insurance proceeds attributable to such fire or other casualty,
Landlord shall proceed diligently to restore the Premises to
substantially the same size and configuration existing prior to the
occurrence of the damage. Landlord shall not be obligated to repair
or restore any alterations, additions or fixtures which Tenant may
have installed after the date of the execution of this Lease (whether
or not Tenant has the right or the obligation to remove the same or is
required to leave the
same on the Premises as of the expiration or earlier termination of
this Lease) unless Tenant, in a manner reasonably satisfactory to
Landlord, assures payment in full of such costs as may be incurred by
Landlord in connection therewith. If there be any such alteration,
fixtures or additions and Tenant does not assure payment of the cost
of restoration or repair as aforesaid, Landlord shall have the right
to determine the manner in which the Premises shall be restored, as if
such alterations, additions or fixtures had not then been made or
installed. The validity and effect of this Lease shall not be
impaired in any way by the failure of Landlord to complete repairs and
restoration of the Premises within one hundred eighty (180)
consecutive days after commencement of work, even if Landlord had in
good faith notified Tenant that the repair and restoration could be
completed within such period, provided that Landlord proceeds
diligently with such repair and restoration. Notwithstanding anything
to the contrary to the foregoing, if Landlord does not complete
restoration of the Premises within the Permitted Restoration Period
(hereinafter defined), then, in such event, Tenant may at any time
prior to the substantial completion of such work, terminate this Lease
whereupon this Lease shall become null and void as of the date of the
casualty and neither party shall have any further liability or
obligation under this Lease. The term "Permitted Restoration Period"
means one hundred eighty (180) days after commencement of the work
plus an additional period equal to the length of any delays caused by
circumstances beyond the reasonable control of Landlord, not to exceed
an additional sixty (60) days.
1.10. In the case of damage to the Premises which is of a nature
or extent that all or a portion of the Premises is rendered
untenantable during the period of repair and restoration by Landlord,
the Rent otherwise payable by Tenant pursuant to this Lease shall be
abated for the period of such untenantability in such proportion as
the number of rentable square feet of the Premises rendered
untenantable bears to the total number of rentable square feet in the
Premises.
ARTICLE VI
Rent Absolute and Net to Landlord
1.11. This Lease is a net lease and Landlord shall receive,
except as herein otherwise specifically provided in this Lease, all
Basic Rent and all Additional Rent free from any charges, taxes,
assessments, fees, impositions, expenses, or deductions of any and
every kind or nature whatsoever, and, except as herein otherwise
expressly provided in this Lease, free of all obligation to insure or
to repair, restore, or maintain the Premises. Landlord shall not be
responsible for any costs, expenses, or charges of any kind or nature
respecting the Premises, except as otherwise expressly provided in
this Lease. Landlord shall not be required to render any services of
any kind to Tenant or to the Premises, except as otherwise expressly
provided in this Lease.
ARTICLE VII
Signs; Alterations
1.12. Except for signs which are located wholly within the
interior of the Premises and which are not visible from the exterior
of the Premises, no signs shall be placed, erected, maintained or
painted at any place upon the Premises without the prior written
consent of Landlord, which consent shall not be unreasonably withheld
or delayed. All signs shall be maintained by Tenant in good condition
during the Term, and Tenant shall remove all signs at the termination
of this Lease and shall repair and restore any damage caused by the
installation or removal thereof.
1.13. Tenant may, from time to time, at its expense, make such
alterations, decorations, additions, or improvements to the Premises
(hereinafter collectively referred to as "Alterations") in and to the
Premises, excluding structural changes, as Tenant may reasonably
consider necessary for the conduct of its business in the Premises;
provided, however, that the written consent of the Landlord is first
obtained. Landlord's consent to Alterations shall not be unreasonably
withheld or delayed, provided that (a) the exterior of the
improvements located on the Property shall not be affected; (b) the
Alterations are non-structural and the structural integrity of the
improvements located on the Property shall not be adversely affected;
(c) the Alterations are to the interior of the Premises and no part of
the outside of the Premises or Building 1 shall be affected; (d) the
proper functioning of the mechanical, electrical, sanitary and other
service systems of the Property shall not be adversely affected and
such systems shall not be overburdened by their use by Tenant; (e) the
Alterations do not have any effect on other leased premises or other
tenants of the Property; (f) Tenant shall have appropriate insurance
coverage reasonably satisfactory to Landlord regarding the performance
and installation of the Alterations; and (g) before proceeding with
any Alterations, Tenant shall submit for Landlord's approval, plans
and specifications for the work to be done and Tenant shall not
proceed with such work until it has received such approval. If the
costs of the alterations exceeds Fifty Thousand Dollars ($50,000.00),
Tenant shall obtain and deliver to Landlord (if so requested) either
(i) a performance bond and a labor and materials payment bond (issued
by a corporate surety licensed to do business in Pennsylvania) each in
an amount equal to one hundred fifteen percent (115%) of the estimated
cost of the Alterations and in form satisfactory to Landlord, or (ii)
such other security as shall be reasonably satisfactory to Landlord.
1.14. Tenant, at its expense, shall obtain all necessary
governmental permits and certificates for the commencement and
prosecution of Alterations and for the final approval thereof upon
completion, and shall cause the Alterations to be performed in
compliance therewith and in compliance with all applicable laws and
requirements of public authorities and with rules and regulations
promulgated by Landlord in Landlord's reasonable discretion or any
other restrictions that Landlord may, in the exercise of reasonable
discretion, impose on the Alterations. Tenant shall not commence any
Alterations without having first demonstrated, to Landlord's
reasonable satisfaction, that all required permits and certificates
have been obtained. The Alterations shall be diligently performed in
a good and workmanlike manner, using new materials and equipment at
least equal in quality and class to the standards for the Premises and
Building 1 established by Landlord. Alterations shall be
performed by contractors first approved by Landlord (which approval
shall not be unreasonably withheld or delayed), and Tenant's agents,
contractors, workmen, mechanics, suppliers and invitees shall work in
harmony, and not interfere with, Landlord and its agents and
contractors (if any) or the Premises. Tenant shall, and hereby does,
indemnify, defend, and hold Landlord and Agent harmless from any and
all claims, damages or losses of any nature (including reasonable fees
of attorneys of Landlord's choosing), suffered by Landlord, as a
result of, or due to, or arising from, the performance of any
Alterations by, or on behalf of, Tenant. Tenant acknowledges that any
Alterations commenced or performed in violation of any provision of
this Article VII shall cause Landlord irreparable injury, and Landlord
shall have the right to seek to enjoin any such violations by
injunction or other equitable relief. Except as otherwise agreed to
in writing by Landlord and Tenant, all Alterations shall be and remain
part of the Premises, and shall not be removed by Tenant, unless
Landlord requires Tenant to remove them, at Tenant's sole expense, at
the expiration or sooner termination of the Term by written notice
given to Tenant at the time Landlord consents to such Alteration; in
performing such removal, Tenant shall restore the Premises to its
condition prior to such Alteration, ordinary wear and tear excepted,
shall repair any damage caused by such removal, and shall otherwise
comply with this Article VII.
1.15. Tenant shall not permit any mechanics or materialmen's
liens to attach to the Premises, Tenant's leasehold estate, or the
Property. Tenant shall and hereby does defend, indemnify, and hold
Landlord harmless from and against any and all mechanics and other
liens and encumbrances filed in connection with Alterations or any
other work, labor, services, or materials done for or supplied to
Tenant, or any person claiming through or under Tenant including,
without limitation, security interests in any materials, fixtures or
articles installed in and constituting a part of the Premises and
against all costs, expenses, and liabilities (including reasonable
fees of attorneys of Landlord's choosing) incurred in connection with
any such lien or encumbrance or any action or proceeding brought
thereon. Tenant, at its expense, shall procure the satisfaction or
discharge of record of all such liens and encumbrances within thirty
(30) days after the filing thereof. In the event Tenant has not so
performed, Landlord may, at its option, after ten (10) days written
notice to Tenant, pay and discharge such liens and Tenant shall be
responsible to reimburse Landlord for all costs and expenses incurred
in connection therewith, together with interest thereon at the rate
set forth in Section 26.4 below, which expenses shall include
reasonable fees of attorneys of Landlord's choosing, and any costs in
posting bond to effect discharge or release of the lien as an
encumbrance against the Premises, Tenant's leasehold estate, or the
Property or any part thereof.
ARTICLE VIII
Repairs
1.16. Except for the items specified in Section 8.3, Tenant, at
its own cost and expense, shall keep the interior of the Premises in
good order and condition and will make all necessary repairs and
replacements thereto, ordinary and extraordinary, foreseen and
unforeseen, and will make all necessary replacements thereto when
necessary. Tenant shall hire and pay for all cleaning, custodial and
janitorial services required to meet its obligations hereunder. All
glass, both interior and exterior, is the sole responsibility of
Tenant, and any broken glass shall promptly be replaced by Tenant at
Tenant's expense with glass of the same kind (to the extent permitted
by applicable building codes), size and quality.
1.17. All repairs and replacements required of Tenant hereunder
shall be promptly made with new materials of like kind and quality and
shall be made subject to Tenant's compliance with Article VII.
1.18. Landlord shall maintain in good order and repair, at
Landlord's sole cost and expense, the structure and roof of the
building of which the Premises is a part. In addition, Landlord shall
keep in good order and repair, and replace when necessary (i) the
exterior of the building of which the Premise is part, (ii) the
lighting, heating, ventilating and air conditioning units, equipment
and systems, and other units, equipment and systems serving the
Premises and building of which the Premises is part (collectively, the
"Systems") and (iii) the Common Areas; the costs of such maintenance,
repair and replacement are a part of the Operating Expenses as set
forth in Article X. The obligation of Landlord to maintain the items
specified in this Section 8.3 does not include any maintenance,
repairs or replacements due to the negligence or willful misconduct of
Tenant, its employees, agents, contractors or invitees or to
alterations made by Tenant all of which shall be the sole
responsibility of Tenant.
1.19. At the option of Landlord, Landlord may enter into a
service contract or service contracts providing for the maintenance,
repair and replacement of all or any Systems, including Systems which
serve only the Premises, in which event Tenant shall not be
responsible for such maintenance, repair or replacement. The cost of
such contracts(s) shall be included in Operating Expenses. Such
election by Landlord shall not preclude Landlord from thereafter
requiring Tenant to commence its maintenance obligations hereunder
should Landlord terminate such service contract(s)
ARTICLE IX
Regulations; Compliance with Laws
1.20. Tenant, at all times during the Term hereof, and at its
sole cost and expense, agrees:
(a) to take such legal action as may be necessary to bring
about the cessation of any work stoppage, picketing or labor activity
by Tenant's employees or against Tenant, which may interfere with the
operation of or access to the Property or any work being performed or
to be performed in or about the Property.
(b) to pay promptly and when due, all taxes, licenses,
fees, assessments or other charges levied or imposed upon the business
of Tenant or upon any fixtures, furnishings or equipment in, on or at
the Premises; to pay Landlord any use and occupancy tax which Landlord
is legally obligated to collect from Tenant;
(c) not to knowingly commit, permit or allow any waste,
damage or nuisance to or on the Property or any portion(s) thereof, or
use, permit or allow the plumbing facilities to be used for any
purpose injurious to same or dispose of any garbage or any other
foreign substance therein, or place a load on any floor in the
Premises which would damage the floor or install, attach, operate or
maintain in the Premises any heavy equipment or apparatus (except fork
lifts) without the consent of Landlord, or install, operate or
maintain in the Premises any electrical equipment which would overload
the electrical system therein, or any part thereof, beyond its
capacity for proper and safe operation as determined by Landlord;
(d) not to knowingly use, permit or allow the Premises to
be used in any manner which would be illegal, noxious, or offensive
because of the emission of noise, smoke, dust or odors or which could
damage the Premises or the Property, or be a nuisance or menace to or
interfere with, any other occupants or the public;
(e) to comply with the requirements of all suppliers of
utility services to the Premises and not to suffer or permit knowingly
any act or omission, the consequence of which could be to cause the
interruption, curtailment, limitation or cessation of any utility
service to the Property;
(f) not to store or discharge or otherwise use any
Hazardous Materials, flammable, explosive, poisonous or other
hazardous or dangerous substances on the Premises, except for (a)
propane used in the operation of Tenant's forklifts, (b) materials and
supplies used by Tenant in servicing its truck fleet and (c)
substances or materials in commercially reasonable amounts which are
customarily used in commercial warehouse and distribution operations,
provided that the permitted materials, substances and supplies
described in this subsection (f) shall be used, stored and disposed of
in accordance all applicable laws, ordinances and regulations and the
other requirements of this Lease; and
(g) not to block or obstruct or otherwise impede access by
others through or across the Common Areas.
1.21. Tenant, at its sole cost and expense, agrees to promptly
comply with all non-discriminatory rules and regulations reasonably
established by Landlord from
time to time with respect to the Property. Landlord agrees not to
enforce rules and regulations in a discriminatory manner.
1.22. The term "Legal Requirements" as used in this Lease means
all present and future laws, orders, ordinances, rules, regulations
and requirements of any lawful authorities and the orders, rules and
regulations of the appropriate Board of Fire Underwriters or similar
body, and all requirements of insurance companies writing policies
covering the Premises. Tenant shall at Tenant's expense promptly
comply with all Legal Requirements relating to or applicable to
Tenant's specific use and occupancy of the Premises, including,
without limitation, the Americans With Disabilities Act, provided that
such compliance is not otherwise the obligation of Landlord under this
Lease and provided further that Tenant's obligations under this
Section 9.3 shall not apply to any matter relating to or arising from
Hazardous Materials or Environmental Laws, is being specifically
agreed that Tenant's obligations with respect to such matters shall be
limited to its obligations as set forth in Article XXXI. Tenant shall
pay all costs, expenses, claims, and penalties, that may in any manner
arise out of the failure of Tenant to comply with the requirements of
this section.
ARTICLE X
Operating Expenses
1.23. Tenant shall pay to Landlord, Tenant's Operating Expense
Proportionate Share of all expenses incurred or paid by Landlord in
connection with the maintenance, operation, repair, or replacement of
(a) the Common Areas, and (b) all other portions of the Property (not
including the buildings thereon, except as expressly set forth in this
Section 10.1), even if such portions of the Property (not including
the buildings thereon, except as expressly set forth in this Section
10.1) are reserved for the exclusive use of others (unless those
having such exclusive right of use pay the entire expense of
maintenance, operation, repair and replacement of such portion of the
Property reserved for such exclusive use) (which portions of the
Property shall, for purposes of this Section and Section 8 only, be
deemed Common Areas). Such expenses shall include, without
limitation, (a) the costs of (i) cleaning, maintenance, repair and
replacement of the roads, sidewalks, parking areas, and driveways on
or adjoining the Property, including the cost of snow and ice removal;
(ii) repaving and restriping paved portions of the Property; (iii)
maintenance, repair and replacement of all landscaped areas on the
Property and exterior portions of the buildings on the Property; (iv)
guards and security personnel, facilities and equipment for the
Property; (v) maintenance, operation, repair and replacement of the
lighting of the Property (not including the buildings thereon); (vi)
insurance; (vii) maintenance, operation, repair and replacement of
water, sewer and other utility equipment, lines and systems (interior
and exterior to buildings and improvements) at the Property and the
Systems, including the costs of service contracts entered into by
Landlord for such equipment, lines and systems; (viii) maintenance,
operation, repair and replacement of fire protection equipment, lines
and systems (exterior and interior to buildings and
improvements) at the Property; and (ix) compliance with Legal
Requirements affecting the Common, and (b) a management/administrative
fee equal to two and one half percent (2.5%) of the annual Basic Rent
per lease year for each lease year of the Term with respect to the
management and administration of the Property. All sums payable under
this Section 10.1 shall be referred to in this Lease collectively as
the "Operating Expenses." Notwithstanding anything herein to the
contrary, in the event of any capital expense incurred by Landlord to
maintain, operate, repair or replace the Common Areas, only the annual
amortization of such expenditure (calculated by dividing the amount of
the expenditure over the useful life of the improvement) shall be
deemed an Operating Expense for each year of such period.
The term "Operating Expenses" shall not include (a) the salaries or
benefits of any executive officers of Landlord; (b) legal fees related to
negotiation or enforcement of leases or any mortgages applicable to the
Property; (c) costs incurred in connection with the original construction
of the Common Areas or in connection with any major changes to the Common
Areas, such as the relocation of driveways or roads; (d) depreciation,
interest and principal payments on mortgages, and other debt costs, if any;
(e) costs of correcting defects in or inadequacy of the initial design or
construction of the Common Areas or any part thereof; (f) expenses
resulting from the negligence or willful misconduct of Landlord, Landlord's
authorized representatives or another tenant at the Property; (g) legal
fees, space planners' fees, real estate brokers' leasing commissions and
advertising expenses incurred in connection with the development or leasing
of space at the Property or any part thereof; (h) costs reimbursable by any
tenant or occupant of the Property or by insurance by its carrier or any
tenant's carrier or by anyone else; (i) any bad debt loss, rent loss, or
reserves for bad debts or rent loss; (j) costs associated with the
operation of the business entity whichconstitutes the Landlord, as the same
are distinguished from the costs of operation of the Property, including
partnership accounting and legal matters, costs of defending any lawsuits
with any mortgagee, costs of selling, syndicating, financing, mortgaging or
hypothecating any of Landlord's interest in the Property, costs (including
attorneys' fees and costs of settlement judgments and payments in lieu
thereof) arising from claims, disputes or potential disputes in connection
with potential or actual claims, litigation or arbitrations pertaining to
Landlord and/or the Property; (k) wages and benefits of any employee who
does not devote substantially all of his or her time to the Common Areas
unless such wages and benefits are prorated to reflect time spent on
operating and management of the Common Areas; (l) costs or expenses arising
from or related to the EPA Agreement (as defined in Section 31.7), the
PADEP Agreement (as defined in Section 31.8), or the Existing Contamination
(as defined in the EPA Agreement) or any other costs or expenses arising
from the presence of Hazardous Materials in or about the Property,
including, without limitation, Hazardous Materials in the ground water or
soil; (m) fines, penalties and interest; (n) amounts paid as ground rental
by Landlord, if any; (o) capital expenditures to comply with Landlord's
obligations under Section 31.10; (p) overhead and profit increment
paid to Landlord or to subsidiaries or affiliates of Landlord for services
to the extend the same exceeds the cost of such services rendered by
unaffiliated third parties on a competitive basis; (q) costs arising from
Landlord's political or charitable contributions; (r) costs incurred by
Landlord due to the violation by Landlord or any tenant of the terms and
conditions of any lease of space at the Property; (s) earthquake insurance,
flood insurance and rental interruption insurance to the extent that rental
interruption insurance is in excess
of twelve (12) months' coverage; (t) costs for which Landlord has been
compensated by a management fee; and (u) capital expenditures to comply
with legal requirements applicable to the Property on the date of this
Lease.
The term "Tenant's Operating Expense Proportionate Share" means the
ratio that the number of rentable square feet of the Premises bears to the
number of rentable square feet of building space on the Property, as such
number may change from time to time.
1.24. Tenant shall pay to Landlord at the time when the monthly
installment of Basic Rent is payable, an amount equal to one-twelfth
(1/12th) of Tenant's Operating Expense Proportionate Share of the
annual Operating Expenses as reasonably estimated by Landlord. Such
estimate shall itemize in reasonable detail the Operating Expenses and
shall set forth Landlord's calculation of Tenant's Operating Expense
Proportionate Share of the annual Operating Expenses, and may be
reasonably changed by Landlord from time to time, whereupon the
amounts payable hereunder shall change (so that amounts payable by
Tenant shall be sufficient to pay in full Tenant's Operating Expense
Proportionate Share of the annual Operating Expenses, as reasonably
estimated by Landlord, over the balance of the calendar year). Tenant
shall also pay to Landlord within ten (10) days after a statement is
rendered for the applicable calendar year (the "Operating Expense
Statement") the amount, if any, by which Tenant's Operating Expense
Proportionate Share of the Operating Expenses for such calendar year
exceeds the monthly payments on account thereof previously made by
Tenant. Any overpayment of Operating Expenses shall be credited
against the next installments of Tenant's Proportionate Share of
Operating Expenses due hereunder or, upon the expiration or earlier
termination of the Term, repaid to Tenant (net of any unpaid sums due
to Landlord under this Lease) within thirty (30) days after expiration
or earlier termination of the Term. The Operating Expense Statement
shall be provided by Landlord within one hundred twenty (120) days
after the expiration of the applicable calendar year, shall set forth
in reasonable detail the Operating Expenses for the prior year and the
calculation by which Tenants' Operating Expense Proportionate Share
was determined and shall be signed and certified to be correct by
Landlord. Landlord shall not be entitled to subsequently collect any
Operating Expenses from Tenant for a specific calendar year which are
not set forth on the Operating Expense Statement for such calendar
year. Tenant shall have the right to review Landlord's records
relative to Operating Expenses during normal business hours at the
office at which Landlord maintains such records. If Tenant desires to
review Landlord's records, Tenant shall give Landlord notice thereof
within ninety (90) days following the furnishing of the Operating
Expense Statement to Tenant. Such review shall be completed by
Tenant, if at all, within sixty (60) days following the giving of such
notice by Tenant to Landlord. If such review reveals that Landlord
has overcharged Tenant, then within ten (10) days after Tenant's
demand therefor, Landlord shall reimburse Tenant for the amount of
such overcharge. Tenant agrees to pay the cost of such review;
provided, however, that if the review reveals that Landlord's
determination of Tenant's Operating Expense Proportionate Share as set
forth in the applicable Operating Expense Statement was in error in
Landlord's favor by more than five percent (5%), then Landlord shall
pay the cost of such review.
Landlord shall keep at its regular place of business full, accurate
and separate books of account covering all of the Operating Expenses.
The amounts paid by Tenant pursuant to this Section 10.2 shall be used
to pay the Operating Expenses, but such amounts shall not be deemed to
be trust funds and no interest shall be payable thereon.
ARTICLE XI
Landlord's Right of Entry
1.25. Tenant shall permit Landlord and the authorized
representatives of Landlord and of any mortgagee or any prospective
mortgagee, prospective purchaser or tenant to enter the Premises at
all reasonable times upon one day prior notice (except no notice shall
be required in the event of emergency), for the purpose of (a)
inspecting or showing the same, or (b) performing any obligations of
Landlord under this Lease, or (c) correcting any defaults by Tenant
under this Lease. Landlord will exercise reasonable efforts to
minimize interference with the operations of Tenant, but shall not be
liable for inconvenience, annoyance, disturbance or other damage to
Tenant by reason of making any repair or by bringing or storing
materials, supplies, tools and equipment in the Premises during the
performance of any work (except for damage caused by Landlord's gross
negligence or willful misconduct), and, except as otherwise expressly
provided for in this Lease, the obligations of Tenant under this Lease
shall not be thereby affected in any manner whatsoever.
ARTICLE XII
Indemnification
1.26. Subject to the provisions of Section 5.6, and except as
otherwise expressly provided in this Lease, Tenant will indemnify
Landlord and save Landlord harmless from and against any and all
claims, actions, damages, liability and expense (including, without
limitation, reasonable fees of attorneys, investigators and experts)
in connection with loss of life, personal injury or damage to property
caused to any person in or about the Premises and arising out of the
occupancy by Tenant or use by Tenant of the Property or occasioned
wholly or in part (as to such part) by any act or omission of Tenant,
its agents, contractors, employees, licensees or invitees, or by
reason of any breach by Tenant of the terms and conditions of this
Lease, unless such loss, injury or damage was caused by the negligence
or willful misconduct of Landlord, its agents, employees, licensees or
invitees. In case any such claim, action or proceeding is brought
against Landlord, upon notice from Landlord and at Tenant's sole cost
and expense, Tenant shall resist or defend such claim, action or
proceeding or shall cause it to be resisted or defended by an insurer.
1.27. Subject to the provisions of Section 5.06, and except as
otherwise expressly provided in this Lease, Landlord will indemnify
Tenant and save Tenant
harmless from and against any and all claims, actions, damages,
liability and expense (including, without limitation, reasonable fees
of attorneys, investigators and experts) in connection with loss of
life, personal injury or damage to property caused to any person
occasioned wholly or in part (as to such part) by any act or omission
of Landlord, its agents, contractors, employees, licensees or invitees
(excluding other tenants and the agents, contractors, employees,
licensees and invitees of such other tenants) , unless such loss,
injury or damage was caused by the negligence or willful misconduct of
Tenant, its agents, employees, licensees or invitees. In case any
such claim, action or proceeding is brought against Tenant, upon
notice from Tenant and at Landlord's sole cost and expense, Landlord
shall resist or defend such claim, action or proceeding or shall cause
it to be resisted or defended by an insurer.
1.28. The foregoing indemnity shall not extend to any matter
relating to or arising from Hazardous Materials or Environmental Laws,
it being specifically agreed that any indemnity by Tenant with respect
to such matters shall be limited to the indemnity set forth in Article
XXXI.
ARTICLE XIII
Condemnation
1.29.
(a) If the whole or any part of the Premises or Common
Areas shall be taken under the power of eminent domain, this Lease
shall terminate as to the part so taken on the date Tenant is required
to yield possession thereof to the condemning authority.
(b)
(i) If the portion of the Premises so taken under
the power of eminent domain substantially renders the remainder of the
Premises untenantable for the use specified in Section 2.1, or if the
portion of the Common Areas so taken under the power of eminent domain
renders use of the Premises impractical, either Landlord or Tenant may
terminate this Lease as of the date when Tenant is required to yield
possession to the condemning authority by giving notice of termination
within forty-five (45) days after the date of notice of such taking by
Landlord to Tenant.
(ii) If any portion of the Property or Common Areas
is so taken thereby causing the use of the Premises specified in
Section 2.1 to be unlawful under applicable governmental requirements,
and Landlord cannot or does not deem it reasonably feasible to take
action to make such use lawful, then Landlord or Tenant may elect to
terminate this Lease as of the date on which possession thereof is
required to be yielded to the condemning authority, by giving notice
of such election within forty-five (45) days after the date of notice
of such taking by Landlord to Tenant.
(iii) If Tenant is permanently deprived of access to
the Premises or if access to the Premises is permanently significantly
reduced or impaired as a result of any condemnation affecting the
Property, Tenant may elect to terminate this Lease as of the date the
condemned property is required to be yielded to the possession of
condemning authority by giving notice of termination within forty-five
(45) days after receiving notice of such taking from Landlord.
(c) If this Lease is not terminated under this Section
13.1, Landlord, subject to Section 5.9 of this Lease, shall make such
repairs and alterations as may be necessary in order to restore the
part of the Premises and/or Common Areas not taken to tenantable
condition, (a) all Rent (other than any Additional Rent due Landlord
by reason of Tenant's failure to perform any of its obligations
hereunder) shall be reduced proportionately as to the portion of the
Premises so taken commencing on the date the property taken is require
to be yielded to the possession of the condemning authority, and (b)
if the portion of the Premises being repaired is rendered untenantable
during the period of repair and restoration by Landlord, the Rent
otherwise payable by Tenant pursuant to this Lease shall be abated for
the period of such untenantability in such proportion as the number of
rentable square feet of the portion of the Premises rendered
untenantable bears to the total number of rentable square feet of the
Premises.
(d) If any notice of termination is given pursuant to this
section, this Lease shall terminate on the date the property taken is
required to be yielded to the possession of the condemning authority
and all Rent shall be adjusted as of the date of such termination.
1.30. In the event of a condemnation affecting Tenant, Tenant
shall have the right to make a claim against the condemning authority
for loss of personal property, relocation and moving expenses and the
unamortized cost of alterations made by Tenant; provided and to the
extent, however, that such claims or payments do not reduce the sums
otherwise payable by the condemning authority to Landlord. Except as
aforesaid, Tenant hereby waives all claims against Landlord and
against the condemning authority, and Tenant hereby assigns to
Landlord all claims against the condemning authority, including,
without limitation, all claims for leasehold damages and diminution in
value of Tenant's leasehold interest.
ARTICLE XIV
Quiet Enjoyment
1.31. Landlord hereby covenants that Tenant, upon paying all
Rent and other charges herein provided for, and observing and keeping
all covenants, agreements and conditions of this Lease on its part to
be kept, shall quietly have and enjoy the Premises during the Term
without hindrance or molestation by anyone claiming by or through
Landlord, subject, however, to the exceptions, reservations and
conditions of this Lease.
ARTICLE XV
Assignment and Subletting
1.32.
(a) Tenant shall not, voluntarily, or by operation of law
or otherwise, assign, mortgage, pledge or encumber this Lease, or
sublet the whole or any part of the Premises, or permit the Premises
to be used or occupied by anyone other than Tenant, without the prior
written consent of Landlord, such consent not to be unreasonably
withheld or delayed.
(b) An assignment of this Lease shall include any transfer
of a majority of the voting stock of Tenant or to any other change in
voting control of Tenant (if Tenant is a corporation), in one (1) or
more transactions, or to a transfer of a majority of the general
partnership interests in Tenant or managerial control of Tenant (if
Tenant is a partnership), or to any comparable transaction involving
any other form of business entity, whether effectuated in one (1) or
more transactions; but, Tenant shall have the right to assign this
Lease or sublet the Premises or any portion thereof to a corporation
into or with which Tenant is merged or consolidated, or to which all
or substantially all of Tenant's assets are transferred, or to any
corporation that controls or is controlled by Tenant, or is under
common control with Tenant (a "Tenant Affiliate"), provided in any of
such events (a) the successor to Tenant has a net worth (computed in
accordance with generally accepted accounting principles), at least
equal to the net worth of Tenant on the date of this Lease (b) proof
satisfactory to Landlord of such net worth shall have been delivered
to Landlord at least thirty (30) days prior to such assignment, and
(c) Tenant complies with this Article in all other respects in
connection with such assignment.
1.33. In the event of any assignment of this Lease or a
subletting of all or any portion of the Premises, whether or not
consent to such assignment or subletting is required, Tenant
nevertheless shall remain liable for the performance of all of the
terms, conditions and covenants of this Lease. In the event of an
assignment, Tenant shall require any assignee to execute and deliver
to Landlord an assumption of liability agreement in form reasonably
satisfactory to Landlord, including an assumption by
the assignee of all of the obligations of Tenant and the assignee's
ratification of and agreement to be bound by all of the provisions of
this Lease. Any subleases of the Premises, whether or not consent is
required to such sublease, shall be under and subject to the terms of
this Lease, and each sublease shall specifically so state. In
addition to all sums payable hereunder, Landlord shall be entitled to,
and Tenant shall promptly remit to Landlord, one hundred percent
(100%) of any consideration received by Tenant as a result of any
assignment of this Lease in excess of Tenant's reasonable costs
incurred in connection with such assignment to a non-Tenant Affiliate,
including, without limitation, the costs of preparing the Premises for
the assignee, reasonable legal fees of preparing the assignment
documents, and reasonable brokerage commissions paid to an independent
third party broker in connection with such assignment, and one hundred
percent (100%) of any rent and other consideration received by Tenant
as a result of any subletting of the Premises to a non-Tenant
Affiliate in excess of the Basic Rent and Tenant's reasonable costs
incurred in connection with such subletting to a non-Tenant Affiliate,
including, without limitation, of preparing the Premises (or a portion
thereof) for the subtenant, the reasonable legal fees of preparing the
sublease, and reasonable brokerage commissions paid to an independent
third party broker in connection with such subletting.
Tenant's request for consent to any assignment or subletting shall be
given to Landlord at least thirty (30) days before the execution of any
assignment or sublease, shall be in writing and contain the name, address,
and description of the business of the proposed assignee or subtenant, its
most recent financial statement and other evidence of financial
responsibility, its intended use of Premises, the terms and conditions of
the proposed assignment or subletting, and a copy of the proposed form of
assignment or sublease. Tenant shall also give Landlord at least thirty
(30) days prior notice of any assignment or sublease permitted under
Section 15.1.b together with all of the information required by the
immediately preceding sentence. Without limitation on any obligations or
liabilities of Tenant in the event of any assignment or subletting, whether
or not consent to such assignment or subletting is required, Tenant shall
comply with and shall cause all proposed subtenants and assignees to agree
to comply with the EPA Agreement and the PADEP Agreement, including,
without limitation, any provisions of such agreements requiring prior
notice to any governmental agency before any transfer, lease or assignment.
ARTICLE XVI
Subordination
1.34. This Lease and Tenant's rights hereunder shall be subject
and subordinate at all times in lien and priority to all mortgages now
or hereafter placed upon or affecting the Property, and to all
renewals, modifications, consolidations and extensions thereof,
without the necessity of any further instrument or act on the part of
Tenant. Tenant shall execute and deliver upon demand any further
instrument or instruments confirming the subordination of this Lease
to the lien of any such mortgages and any further instrument or
instruments of attornment that may be desired by any mortgagee.
Notwithstanding the foregoing, any mortgagee may at any time
subordinate its mortgage to this Lease, without Tenant's consent, by
giving 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. Tenant hereby agrees to attorn (a) to any
purchaser of any real estate of which the Premises is a part of any
foreclosure sale, execution sale or private sale conducted pursuant to
any mortgage, security instrument, or lien encumbering or affecting
the Premises, and (b) to any grantee or transferee designated in any
deed given in lieu of foreclosure. The foregoing provisions of this
Section 16.1 are subject, however, to the condition that the holder of
any mortgage to which this Lease is subordinate shall deliver to
Tenant a recordable subordination, non-disturbance and attornment
agreement in form reasonably satisfactory to Tenant and such
mortgagee.
1.35. Landlord represents and warrants that, as of the date
hereof, there are no mortgages encumbering all or any portion of the
Property.
1.36. Tenant agrees that in the event the interest of Landlord
becomes vested in the holder of any mortgage, or in anyone claiming
by, through or under the holder of any mortgage, then such holder
shall not be:
(a) liable for any act or omission of any prior landlord
(including Landlord herein) which is not of a continuing nature; or
(b) subject to any offsets or defenses which Tenant may
have against any prior landlord (including Landlord herein); or
(c) required to make or complete any tenant improvements
except for those set forth in Section 1.3 hereof; or
(d) bound by any rent which Tenant may have paid for more
than the current month to any landlord (including Landlord herein); or
(e) bound by any amendment or modification of any
provisions hereof, or any cancellation or surrender of this Lease,
after the mortgage is placed of record unless such amendment,
modification, cancellation or surrender shall have
been approved in writing by the holder of such mortgage.
ARTICLE XVII
Estoppel Certificates; Financials
1.37. Tenant, at any time and from time to time and within ten
(10) days after written request by Landlord, shall execute,
acknowledge and deliver to the other a written instrument certifying:
(a) whether this Lease has been modified or amended, and
if so, the date, substance and manner of such modification or
amendment;
(b) the validity and force and effect of this Lease;
(c) the existence of any default hereunder, and if so, the
nature, scope and extent thereof;
(d) the existence of any offsets, counterclaims or
defenses thereto on the part of Tenant, and if so, the nature, scope
and extent thereof;
(e) the commencement and expiration dates of the Term;
(f) the dates to which Rent has been paid;
(g) any other matters as may be reasonably requested.
Any such certificate may be relied upon by the Landlord and any other
person, firm or corporation to whom the same may be exhibited or delivered,
and the party executing such certificate shall be bound by the contents of
the same.
1.38. Tenant further agrees to furnish to Landlord at any time,
but not more frequently than twice per year, within ten (10) days
after request by Landlord, a copy of its financial statements for its
last full fiscal year, including a balance sheet and a profit and loss
statement for such year, and for the year in which the request is made
through the end of the last fiscal period of Tenant for such year.
Landlord agrees that Tenant's annual report, together with any
financial information available to shareholders of Tenant, shall be
sufficient to satisfy the requirements of this Section 17.2.
ARTICLE XVIII
Curing Tenant's Defaults
1.39. If Tenant shall be in default in the performance of any of
its obligations under this Lease, Landlord, without any obligation to
do so, in addition to any other rights it may have in law or equity,
may elect to cure such default on behalf of Tenant after providing
Tenant written notice thereof, and such time to cure as Landlord
determines is reasonable under the circumstances; provided, however,
that no notice or opportunity to cure shall be required in case of
emergency. Tenant shall reimburse Landlord for any sums paid or costs
reasonably incurred by Landlord in curing such default, including
interest thereon from the date of Tenant's receipt of Landlord's xxxx
therefor, which sums and costs together with interest thereon shall be
deemed Additional Rent payable within ten (10) days after Tenant
receives a xxxx therefor (which xxxx shall set forth in reasonable
detail the costs for which compensation is claimed).
ARTICLE XIX
Surrender
1.40. Subject to the provisions of Section 5.8, Article XIII
and Landlord's obligations under this Lease, at the expiration or
earlier termination of the Term, Tenant shall promptly yield up
vacant, broom clean and neat, and in the same condition, order and
repair in which they are required to be kept throughout the Term, the
Premises and all improvements, alterations and additions thereto,
ordinary wear and tear excepted.
1.41. All movable non-structural partitions, business and trade
fixtures, machinery and equipment, communications equipment and office
equipment, whether or not attached to, or built into, the Premises,
which are installed in the Premises by, or for the account of, Tenant
without expense to Landlord and that can be removed without structural
damage to the Premises or Property, and all furniture, furnishings and
other articles of movable personal property owned by Tenant, or
property of others in the care, custody and control of Tenant
(collectively, the "Tenant's Property") shall be and shall remain the
property of Tenant. At or before the expiration of the Term or the
date of any earlier termination, Tenant, at its expense, shall remove
from the Premises all of Tenant's Property (except such items thereof
as Landlord shall have expressly permitted, in writing, to remain,
which property shall become the property of Landlord), and Tenant
shall repair any damage to the Premises or Property resulting from any
installation or removal of Tenant's Property. Any items of Tenant's
Property that shall remain in the Premises or Property after the
expiration date of the Term, or following an earlier termination date,
may, at the option of Landlord, be deemed to have been abandoned, and
in such case, such items may be retained by Landlord as its property
or be disposed of by Landlord, in Landlord's sole and absolute
discretion and without accountability, at Tenant's expense.
Notwithstanding the foregoing, if Tenant
is in default under the terms of this Lease, it may remove Tenant's
Property from the Premises only upon the express written direction of
Landlord.
1.42. If Tenant, or any person claiming through Tenant, shall
continue to occupy the Premises after the expiration or earlier
termination of the term or any renewal thereof, such occupancy shall
be deemed to be under a month-to-month tenancy under the same terms
and conditions set forth in this Lease; except, however, that the
Basic Rent during such continued occupancy shall be one hundred fifty
percent (150%) of the amount in effect immediately prior to such
holdover. Anything to the contrary notwithstanding, any holding over
by Tenant without Landlord's prior written consent shall constitute an
event of default hereunder and shall be subject to all the remedies
set forth in Article XX hereof.
ARTICLE XX
Default - Remedies
1.43. Tenant's Default. It shall be an event of default under
this Lease:
(a) If Tenant does not pay in full any and all
installments of Basic Rent or Additional Rent or any other charges or
payments whether or not herein defined as Rent, within ten (10) days
after notice that the same is due, provided, however that Tenant shall
not be entitled to any such notice or grace period more than twice in
any twelve (12) month period; or
(b) If Tenant violates or fails to perform or otherwise
breaches any agreement, term, covenant or condition herein contained
and such failure continues for more than thirty (30) days after
written notice thereof to Tenant (unless such default is not
susceptible of cure within thirty (30) days in which event Tenant
shall have failed to commence curing such default within such thirty
(30) day period and to diligently prosecute such cure to completion),
or
(c) If Tenant voluntarily abandons the Premises or removes
or attempts to remove Tenant's goods or property therefrom other than
in the ordinary course of business; or
(d) If Tenant becomes insolvent or bankrupt in any sense
or makes an assignment for the benefit of creditors or offers a
composition or settlement to creditors, or if a petition in bankruptcy
or for reorganization or for an arrangement with creditors under any
federal or state law is filed by or against Tenant, or a xxxx in
equity or other proceeding for the appointment of a receiver, trustee,
liquidator, custodian, conservator or similar official for any of
Tenant's assets is commenced, or if any of the real or personal
property of Tenant shall be levied upon by any sheriff, marshal or
constable; provided, however, that any proceeding brought by anyone
other than the parties to this Lease under any bankruptcy,
reorganization arrangement, insolvency, readjustment, receivership or
similar law shall not constitute an event of
default until such proceeding, decree judgment or order has continued
unstayed for more than ninety (90) consecutive days.
1.44. Landlord's Remedies. Upon the occurrence of an event of
default, Landlord shall have the following remedies and rights:
(a) To terminate this Lease by giving written notice
thereof to Tenant, and upon the giving of such notice the Term, and
all rights of Tenant hereunder shall terminate, without affecting
Tenant's liability for all sums due under this Lease;
(b) To reenter the Premises, together with all additions,
alterations and improvements, and, at the option of Landlord, remove
all persons and all or any property therefrom, without being liable
for prosecution or damages therefor, and repossess and enjoy the
Premises;
(c) At any time after repossession of the Premises,
whether or not the Lease shall have been terminated by Landlord,
Landlord may make such reasonable alterations and repairs as may be
necessary in order to relet the Premises and relet the Premises or any
part or parts thereof, either in Landlord's name or otherwise, for a
term or terms which may, at Landlord's option, be less than or exceed
the period which would otherwise have constituted the balance of the
Term of this Lease and at such rent or rents and upon such other terms
and conditions as Landlord may decide. If the rentals received from
such reletting during any month after deducting all costs incurred by
Landlord in exercising its rights hereunder shall be less than that to
be paid during that month by Tenant, Tenant shall pay any such
deficiency to Landlord, provided such reletting is a bona fide arms
length transaction. Such deficiency shall be calculated and paid
monthly.
(d) To declare due and payable all unpaid Basic Rent for
the unexpired period of the Term (and also all Additional Rent, as
reasonably estimated by Landlord,) as if by the terms of this Lease
the same were due and payable in advance, all discounted to present
worth using a rate equal to the annual rate for United States
obligations of equal duration to the period remaining in the term of
the Lease, and upon payment of the same, Tenant shall be entitled to
continue in possession pursuant to the terms of this Lease;
(e) In the event of the termination of this Lease, or
repossession of the Premises, Landlord shall be entitled to recover,
in addition to any and all sums and damages for violation of Tenant's
obligations hereunder in existence at the time of such termination,
damages for Tenant's default in an amount equal to the amount of Basic
Rent reserved for the balance of the Term of this Lease (plus
Landlord's reasonable estimate of Additional Rent as well as all other
charges, payments, costs and expenses herein agreed to be paid by
Tenant), all discounted to present worth using a rate equal to the
annual rate for United States obligations of equal duration to the
period remaining in the term of the Lease, less the fair rental value
of the Premises
for the remainder of the Term, also discounted to present value at
such rate, all of which shall be immediately due and payable from
Tenant to Landlord; and
(f) TENANT, IN CONSIDERATION OF THE EXECUTION OF THIS
LEASE BY LANDLORD AND FOR THE COVENANTS AND AGREEMENTS ON THE PART OF
LANDLORD HEREIN CONTAINED, AND FULLY COMPREHENDING THE RELINQUISHMENT
OF CERTAIN RIGHTS, INCLUDING ANY AND ALL RIGHTS OF PREJUDGMENT NOTICE
AND HEARING AND OF POST-JUDGMENT/PRE-EXECUTION NOTICE AND HEARING, AND
AFTER DEFAULT BY TENANT UNDER THIS LEASE AND UPON PROVISION OF TEN
(10) DAYS PRIOR WRITTEN NOTICE BY LANDLORD, HEREBY EXPRESSLY
AUTHORIZES ANY ATTORNEY OF ANY COURT OF RECORD TO ACCEPT SERVICE OF
PROCESS FOR, TO APPEAR FOR, AND TO CONFESS JUDGMENT IN EJECTMENT
AGAINST TENANT IN ANY AND ALL ACTIONS BROUGHT HEREUNDER BY LANDLORD
AGAINST TENANT TO RECOVER POSSESSION FROM TIME TO TIME OF THE PREMISES
(AND TENANT AGREES THAT UPON THE ENTRY OF EACH JUDGMENT FOR SUCH
POSSESSION A WRIT OF POSSESSION OR OTHER APPROPRIATE PROCESS MAY ISSUE
FORTHWITH). THE RIGHT TO CONFESS JUDGMENT IN EJECTMENT SHALL NOT BE
EXHAUSTED BY THE SINGLE OR MULTIPLE USE THEREOF. TENANT CONFIRMS THAT
THIS IS A COMMERCIAL LEASE, THAT TENANT WAS REPRESENTED BY COUNSEL IN
TENANT'S NEGOTIATION AND EXECUTION OF THIS LEASE, AND THAT TENANT
KNOWINGLY, WILLINGLY, FREELY AND VOLUNTARILY EXECUTED THIS LEASE WITH
THIS SECTION 20.2(f) AS A PART THEREOF.
1.45. Late Charge. Any payment of Basic Rent, Additional Rent,
or any other charge under this Lease (including amounts due by
acceleration) which is not paid within ten (10) days after the same is
due, shall bear interest from the date due until the date paid by
Tenant. In addition, Tenant shall pay to Landlord an administrative
charge of five percent (5%) of any amount owed to Landlord pursuant to
this Lease which is not paid within ten (10) days of the date which is
set forth in this Lease if a date is specified as the due date for
such payment, or, if a date is not specified, within ten (10) days
after Tenant's receipt of Landlord's xxxx therefor. The five percent
(5%) administrative charge paid by Tenant shall be applied against the
amount of interest which accrues on any delinquent installment, so
that once Tenant has paid the administrative charge, no further
interest shall accrue on any delinquent installment until the amount
of interest due exceeds the amount of the administrative charge.
1.46. No Waiver. No waiver by either Landlord or Tenant of any
breach by the other of any obligations, agreements or covenants herein
shall be a waiver of any subsequent breach or of any obligation,
agreement or covenant, nor shall any forbearance by either Landlord or
Tenant to seek a remedy for any breach by the other be a waiver of any
rights and remedies with respect to such or any subsequent breach.
1.47. Non-Exclusive Remedies. No right or remedy herein
conferred upon or
reserved to Landlord or Tenant is intended to be exclusive of any
other right or remedy provided herein or by law, but each shall be
cumulative and in addition to every other right or remedy given herein
or now or hereafter existing at law or in equity or by statute.
1.48. Tenant's Bankruptcy. In addition to, and in no way
limiting the other remedies set forth herein, Landlord and Tenant
agree that if Tenant ever becomes the subject of a voluntary or
involuntary bankruptcy, reorganization, composition, or other similar
type proceeding under the federal bankruptcy laws, as now enacted or
hereinafter amended, then:
(a) "Adequate assurance of future performance" by Tenant
and/or any assignee of Tenant pursuant to Bankruptcy Code Section 365
will include (but not be limited to) payment of an additional/new
security deposit in the amount of three (3) the then-current Base Rent
payable hereunder.
(b) Any person or entity to which this Lease is assigned
pursuant to the provisions of the Bankruptcy Code, shall be deemed,
without further act or deed, to have assumed all of the obligations of
Tenant arising under this Lease on and after the effective date of
such assignment. Any such assignee shall, upon demand by landlord,
execute and deliver to landlord an instrument confirming such
assumption of liability.
(c) Notwithstanding anything in this Lease to the
contrary, all amounts payable by Tenant to or on behalf of Landlord
under this Lease, whether or not expressly denominated as "Rent",
shall constitute "rent" for the purposes of Section 502(b)(6) of the
Bankruptcy Code.
(d) If this Lease is assigned to any person or entity
pursuant to the provisions of the Bankruptcy Code, any and all monies
or other considerations payable or otherwise to be delivered to
Landlord (including Base Rent, Additional Rent and other amounts
hereunder), shall be the remain the exclusive property of Landlord and
shall not constitute property of Tenant or of the bankruptcy estate of
Tenant. Any and all monies or other considerations constituting
Landlord's property under the preceding sentence not paid or delivered
to landlord or Agent shall be held in trust by Tenant or Tenant's
bankruptcy estate for the benefit of Landlord and shall be promptly
paid to or turned over the Landlord.
1.49. Landlord's Default. If Landlord shall be in default in
the performance of any of its obligations under this Lease for thirty
(30) consecutive days after written notice from Tenant (unless such
default is not susceptible of cure within thirty (30) days in which
event Landlord shall have failed to commence curing such default
within such thirty (30) day period and to diligently prosecute such
cure to completion), then Tenant shall notify Landlord in writing if
Tenant intends to cure such default on behalf of Landlord. If, ten
(10) days following such second notice Landlord has failed to commence
curing such default, Tenant shall have the right to cure the default
on behalf of Landlord. Landlord shall reimburse Tenant for any sums
reasonably paid or
costs reasonably incurred by Tenant in curing such default, including
interest thereon from the date of Landlord's receipt of Tenant's xxxx
therefor, within ten (10) days after Landlord receives a xxxx therefor
(which xxxx shall set forth in reasonable detail the costs for which
compensation is claimed). Notwithstanding the foregoing, Tenant shall
not have any right in exercising its remedies under the preceding
sentence to make any repairs or modifications to areas outside the
Premises, except those solely serving the Premises. If Landlord fails
to reimburse Tenant as required under this Section and such failure
continues for thirty (30) days after request for payment, Tenant may
deduct such amounts from Basic Rent until the full amount has been
satisfied. All notices by Tenant to Landlord under this Section 20.7
shall simultaneously be given by Tenant to the holders of any first
mortgage or second mortgage on the Premises, provided Tenant has been
given notice of the names and addresses of such mortgagees. Any
mortgagee shall have the right, but not the obligation, to cure, or
commence to cure, any default of Landlord, and Tenant shall accept
performance by any mortgagee with the same force and effect as
performance by Landlord.
ARTICLE XXI
Condition of Title and of Premises
1.50. Landlord represents and warrants to Tenant that Landlord
is the sole fee owner of the Property and has the right to enter into
and perform this Lease without the approval or consent of any other
party. Landlord represents and warrants to Tenant that the Premises
in its state existing on the Commencement Date do not violate in any
material respect any statutes, laws, building codes, regulations,
ordinances, covenants, or restrictions of record applicable to the
Premises and in effect on such Commencement Date, including, without
limitation, the Americans With Disabilities Act. In the event it is
determined that this representation and warranty has been violated,
then it shall be the obligation of the Landlord, after notice from
Tenant, to promptly, at Landlord's sole cost and expense, rectify any
such violation. Landlord shall deliver the Premises to Tenant clean
and free of debris on the Commencement Date and Landlord further
represents and warrants to Tenant that the heating, ventilating, air
conditioning, plumbing, lighting, life-safety, mechanical and
electrical systems in the Premises and the Building and the roof,
windows and sewer shall be in good operating condition on the
Commencement Date. In the event that it is determined that this
representation and warranty has been violated, then it shall be the
obligation of Landlord, after notice from Tenant, to promptly, at
Landlord's sole cost and expense, rectify any such violation.
1.51. Tenant represents that the Property and the Premises, the
street or streets, sidewalks, parking areas, curbs and access ways
adjoining them, any surface conditions, and the present uses and
non-uses thereof, have been examined by Tenant, and Tenant accepts
them AS-IS, WHERE-IS in the condition or state in which they now are,
or any of them now is, without relying on any representation of
Landlord, except as specifically set forth in this Lease, and subject,
however, to the Landlord's
obligations under this Lease including, without limitation, Landlord's
obligations under Sections 1.2, 8.3 and 31.10. Subject to the
provisions of Section 16.1, and the requirements of Section 32.1
respecting Tenant's access to and use of the Premises, and without
limiting Landlord's obligations under this Lease, this Lease is made
under and subject to all liens, encumbrances, easements, covenants,
conditions, restrictions and other documents or matters now or
hereafter of record.
ARTICLE XXII
Interruption of Services
1.52. In case Landlord is prevented or delayed in furnishing any
service required to be provided by Landlord under this Lease due to
any cause beyond the reasonable control of Landlord , Landlord shall
not be liable to Tenant therefor, nor shall the same give rise to a
claim in Tenant's favor that such absence of services constitutes
actual or constructive, total or partial eviction or renders the
Premises untenantable.
ARTICLE XXIII
Waiver of Landlord's Lien
1.53. Landlord hereby waives in favor of any lender providing
financing to Tenant secured in whole or in part by Tenant's accounts
receivable, inventory, machinery, equipment, furniture, furnishings
and/or trade fixtures, whether now or hereafter acquired, and the
proceeds and products thereof (collectively "Tenant's Personal
Property") any and all right of Landlord to assert any lien, claim or
right of levy or distraint for rent with respect to Tenant's Personal
Property. At the request of Tenant, landlord will execute such waiver
documentation as may be reasonably requested by any such lender, which
documentation may include, without limitation, that Tenant's lender
shall have the right, upon prior written notice to Landlord, to enter
upon the Property to inspect or remove Tenant's Personal Property in
the event Tenant defaults on its obligations in favor of Tenant's
lender. Tenant shall be responsible for repairing any damage caused
to the Property during the removal of any of Tenant's Personal
Property.
2.
ARTICLE XXIV
Waiver of Jury Trial
2.1. 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, Tenant's use or occupancy of
the Premises, or any claim of injury or damage, or any other remedy
with respect thereto.
ARTICLE XXV
Waiver of Notices
2.2. Except for notices expressly provided for in this Lease,
Tenant hereby waives all notices of any nature, including, without
limitation, all notice requirements of the Pennsylvania Landlord and
Tenant Act.
ARTICLE XXV
Enforcement Expenses
2.3. In the event any action or proceeding is brought by
Landlord or Tenant to enforce any of the provisions of this Lease, the
prevailing party shall be entitled to receive from the other all costs
and expenses, including reasonable legal fees, incurred in connection
therewith. In addition, each party shall pay upon demand all of the
other party's reasonable costs and expenses, including reasonable
legal fees, incurred in any litigation in which the defaulting party
causes the other, without the other's fault, to become involved.
Tenant shall pay Landlord's reasonable attorneys' fees incurred in
connection with Tenant's request for Landlord's consent under
provisions of this Lease governing assignment and subletting, or in
connection with any other act which Tenant proposes to do and which
requires Landlord's consent.
ARTICLE XXVI
Interpretation
2.4. The captions in this Lease are for convenience only and
are not a part of this Lease and do not in any way define, limit,
describe or amplify the terms and provisions of this Lease or the
scope or intention thereof.
2.5. This Lease represents the entire agreement between the
parties hereto and there are no collateral or oral agreements or
understandings between Landlord and Tenant with respect to the
Premises or the Property. No rights, easements or licenses are
acquired in the Property or any land adjacent to the Property by
Tenant by implication or otherwise. Tenant agrees, within twenty (20)
days after request by
Landlord, to make such changes to this Lease as are reasonably
required by any institutional mortgagee, provided such changes do not
increase any amounts payable by Tenant, impede Tenant's access to
Premises, decrease the size of or change the location of the Premises,
decrease Landlord's obligations hereunder or otherwise materially and
adversely affect Tenant's rights and obligations under this Lease.
This Lease shall not be modified in any manner except by an instrument
in writing executed by the parties. The masculine (or neuter)
pronoun, singular number, shall include the masculine, feminine and
neuter genders and the singular and plural number. Tenant shall not
record or file this Lease (or any memorandum hereof) in the public
records of any county or state. Time is of the essence of Tenant's
obligations, and the exercise of Tenant's rights under this Lease.
This Lease shall be governed by the laws of the Commonwealth of
Pennsylvania.
2.6. Each writing or plan referred to herein as being attached
hereto as an Exhibit or otherwise designated herein as an Exhibit
hereto is hereby made a part hereof.
2.7. Wherever interest is required to be paid hereunder, such
interest shall be at the rate of three percent (3%) per annum over the
rate announced publicly by First National Bank of Chicago, or its
successors, from time to time as its prime rate.
ARTICLE XXVII
Common Areas
2.8. All Common Areas, including but not limited to roads,
driveways, sidewalks, loading facilities, rail lines and other common
facilities as may be provided, from time to time are for the general
nonexclusive use, in common, of Landlord and all owners and tenants of
the Property, their employees and guests, and at all times, are
subject to the sole and exclusive control of the Landlord and the
owners of other portions of the Property. Landlord and the owners of
other portions of the Property shall have the right, from time to
time, to establish, modify and enforce in a nondiscriminatory manner
rules and regulations regarding the Common Areas, to alter, modify or
otherwise change the Common Areas, to grant exclusive rights to use
portions of the Common Areas and to do such other acts, in and to all
Common Areas, as in Landlord's and such owners' sole judgment, shall
be desirable or advisable to improve or maintain them; provided,
however, that in the exercise of the rights set forth in this
sentence, parking areas reasonably comparable to those available on
the date hereof and access to and from the Premises shall be
maintained and Tenant's use and enjoyment of the Premises for its
intended purpose shall not be impaired. Landlord and the other owners
of portions of the Property shall have the right to construct
additional buildings and other improvements on the Property for such
purposes as Landlord and such owners may deem appropriate and to
alter, modify or otherwise change the Property provided parking areas
reasonably comparable to those available on the date hereof and access
to and from the Premises shall be maintained and Tenant's use and
enjoyment of the Premises for its intended purpose shall not be
impaired.
ARTICLE XXVIII
Definitions
2.9. The word "Landlord" is used herein to include the Landlord
named above as well as its successors and assigns, each of which shall
have the same rights, remedies, powers, authorities and privileges as
it would have had it originally signed this Lease as Landlord. Any
such person, whether or not named herein, shall have no liability
hereunder after such person ceases to hold title to the Premises
except for obligations which may have theretofore accrued. Neither
Landlord nor any partner or other principal of Landlord nor any owner
of the Premises, whether disclosed or undisclosed, shall have any
personal liability with respect to any of the provisions of this Lease
or the Premises, and if Landlord is in breach or default with respect
to Landlord's obligations under this Lease or otherwise, Tenant shall
look solely to the equity of Landlord in the Premises or insurance or
condemnation proceeds from the Premises for the satisfaction of
Tenant's claim.
2.10. The word "Tenant" is used herein to include the Tenant
named above as well as its successors and assigns, each of which shall
be under the same obligations, liabilities and disabilities and each
of which shall have the same rights, privileges and powers as it would
have possessed had it originally signed this Lease as Tenant. Each
and every of the persons named above as Tenant shall be bound formally
and severally by the terms, covenants and agreements contained herein.
However, no such rights, privileges or power shall inure to the
benefit of any assignee of Tenant immediate or remote, unless the
assignment to such assignee is permitted or has been approved in
writing by Landlord.
2.11. The word "mortgage" is used herein to include any lien or
encumbrance on the Premises or the Property or on any part of or
interest in or appurtenance to any of the foregoing. The word
"mortgagee" is used herein to include the holder of any mortgage.
Wherever any right is given to a mortgagee, that right may be
exercised on behalf of such mortgagee by any representative or
servicing agent of such mortgagee.
2.12. The word "person" is used herein to include a natural
person, a partnership, a corporation, an association, and any other
form of business association or entity.
ARTICLE XXIX
Notices
2.13. All notices, demands, requests, consents, certificates,
waivers and other communications required or permitted hereunder from
either party to the other shall
be in writing and sent by recognized overnight delivery service
providing receipted delivery, such as Federal Express, and shall be
deemed delivered and received one (1) business day after delivery to
such overnight delivery service. All such notices shall be addressed
as follows:
If to Landlord:
First Industrial Harrisburg, L.P.
c/o First Industrial Realty Trust, Inc.
0000 Xxxxx Xxxxx - Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxxxx
and
First Industrial Harrisburg, L.P.
c/o First Industrial Realty Trust, Inc.
000 Xxxxx Xxxxxx Xxxxx - Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxxx
and
F. Xxxxxxx Xxxxxxx, Esquire
Saul, Ewing, Xxxxxx & Xxxx LLP
Centre Square West
0000 Xxxxxx Xxxxxx - 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
If to Tenant:
SED International, Inc.
0000 Xxxxx Xxxxx Xxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxx, Vice-President Operations
Either party may at any time, in the manner set forth for giving notices to
the other, specify a different address to which notices to it shall be
sent.
ARTICLE XXX
Brokers
2.14. Pursuant to a separate agreement, Landlord has agreed to
pay a leasing commission to Xxx & Associates and to CB Commercial
Group, Inc. (collectively, the "Brokers"), both of whom represent
Tenant in this transaction and Landlord agrees to and hereby does
indemnify, defend and hold Tenant harmless from and against Landlord's
failure to perform under such agreement and all costs, expenses, and
liabilities in connection therewith, including without limitation,
reasonable attorneys' fees and expenses. Landlord and Tenant each for
itself, hereby covenants, warrants and represents to the other that
neither Landlord nor Tenant has had any conversations or negotiations
with any broker, other than the Brokers, concerning the leasing of the
Premises by Tenant. Each party agrees to and hereby does indemnify,
defend and hold the other harmless from and against any brokerage
commissions or finder's fees or claims therefor by a party, other than
the Brokers, claiming to have dealt with the indemnifying party and
all costs, expenses, and liabilities in connection therewith,
including, without limitation, reasonable attorney's fees and
expenses, for any breach of the foregoing. The foregoing
indemnifications shall survive the termination of the Lease for any
reason.
ARTICLE XXXI
Environmental Matters
2.15. For purposes of this Lease, the term "Hazardous Materials"
shall mean (a) radon gas, petroleum and petroleum-based products,
friable asbestos, urea formaldehyde foam insulation, transformers or
other equipment which contain dielectric fluid containing levels of
polychlorinated biphenyls in excess of federal, state or local safety
guidelines, whichever are more stringent; (b) any substance, gas,
material or chemical which is defined as or included in the definition
of "hazardous substances", "toxic substances", "hazardous materials",
"hazardous wastes" or words of similar import under any federal, state
or local statute, law, or ordinance applicable to the Premises or
under the regulations adopted or guidelines promulgated pursuant
thereto, including, but not limited to, the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as
amended, 42 U.S.C. [PARAGRAPHS]9061 et seq. ("CERCLA"); the Hazardous
Materials Transportation Act, as amended 49 U.S.C. [PARAGRAPHS]1801,
et seq.; the Resource Conservation and Recovery Act, as amended, 42
U.S.C. [PARAGRAPHS]6901, et seq.; and (c) any other chemical,
material, gas, or substance, exposure to or release of which is
prohibited, limited or regulated by any governmental or
quasi-governmental entity or authority that has jurisdiction over the
Premises or the operations or activity at the Premises.
2.16. For purposes of this Lease, the term "Environmental Laws"
means all applicable statutes, regulations, rules, ordinances, codes,
licenses, permits, orders, approvals, authorizations, agreements and
similar items, of or with any and all
governmental agencies, departments, commissions, boards, bureaus or
instrumentalities of the United States, Pennsylvania and political
subdivisions having jurisdiction over the Premises or Property, and
all applicable judicial and administrative and regulatory decrees,
judgments and orders relating to the protection of the environment,
including, without limitation, all requirements pertaining to
reporting, licensing, permitting, investigation and remediation of
emissions, discharges, Releases or threatened releases of Hazardous
Materials into the air, surface water, groundwater or land, or
relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials or
relating to storage tanks.
2.17. For purposes of this Lease, the term "Release" means any
releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, disposing or dumping into
soil, surface waters, ground waters, land, stream sediments, surface
or subsurface strata, ambient air and any environmental medium
comprising or proximate to the Premises or Property.
2.18. For purposes of this Lease, the term "Threat of Release"
means a substantial likelihood of a Release which requires action to
prevent or mitigate damage to the soil, surface waters, ground waters,
land, stream sediments, surface or subsurface strata, ambient air and
any environmental medium comprising or proximate to the Premises or
Property which may result from such Release.
2.19. Tenant shall not store. place, use, generate, transport or
dispose of any Hazardous Materials at, on, or in the Premises or
Property (except to the extent permitted under Section 9.1.6), shall
comply with Environmental Laws relating to Tenant's storage,
placement, use, generation, transportation or disposal of Hazardous
Materials, and promptly shall take all remedial action, at Tenant's
sole cost and expense, necessary or desirable to remedy, clean-up and
remove the presence of Hazardous Materials resulting from Tenant's
violation of the prohibitions set forth in this section or Tenant's
failure to comply with Environmental Laws relating to Tenant's
storage, placement, use, generation, transportation or disposal of
Hazardous Materials. Any such remedial action shall be performed by
an independent reputable environmental remediation engineer, in strict
compliance with the requirements of Environmental Laws, in accordance
with environmental remediation industry practices, taking into account
the then current and evolving state of environmental remediation
technology, and in accordance with a remediation plan reasonably
approved by Landlord. Such remediation shall comply with the terms of
Sections 7.2, 7.3 and 7.4 of this Lease. Tenant shall immediately
notify Landlord of any Release or Threat of Release caused by Tenant
or of which Tenant has knowledge. Tenant shall promptly provide to
Landlord copies of all correspondence relating to any Release, Threat
of Release or remediation or other, environmental response action
under this Section 31.5. Subject to Section 11.1 of this Lease,
Landlord shall have the right, but not the obligation, from time to
time during the performance of any remediation work and following the
completion of the same, to inspect the Premises and all information
and documentation relating thereto.
2.20. Tenant hereby agrees to indemnify, protect, defend and
hold harmless Landlord, and Landlord's successors and assigns,
officers, directors, shareholders, partners and employees
("Indemnified Parties") (with counsel reasonably acceptable to the
Indemnified Parties) from and against, and shall pay and reimburse the
Indemnified Parties for, any and all losses, claims, liabilities,
damages, injunctive relief, injuries to persons, property or natural
resources, fines, penalties, costs, expenses, including, without
limitation, attorneys' fees, expenditures, expenses and court costs,
actions, administrative investigations and/or proceedings, and causes
of action and sums paid in settlement of litigation (it being
understood that so long as Tenant is defending the Indemnified Party
and is not in default of its obligations hereunder, no such litigation
(other than relating to governmental fines and penalties or criminal
actions) shall be settled without the reasonable consent of Tenant),
arising directly or indirectly, in whole or in part out of any
Release, Threat of Release or any discharge, threatened discharge,
deposit, presence, treatment, transport, handling or disposal of any
Hazardous Materials on, at, under, in or from the Property caused or
generated by Tenant, its employees, agents or contractors, or in the
air, land surface, subsurface strata, soil, surface water,
groundwater, or soil vapor on, under, in or from any part of the
Property caused or generated by Tenant, its employees, agents or
contractors, or resulting from the migration or the alleged or
potential migration of Hazardous Materials from the Property caused or
generated by Tenant, its employees, agents or contractors
(collectively, "Costs and Liabilities"). The foregoing indemnity and
Costs and Liabilities shall include, without limitation, (a) all costs
at law or in equity of inspection, clean-up, removal, remediation,
testing, monitoring and restoration of any kind, and disposal of any
Hazardous Materials, (b) all costs and liabilities associated with
claims for damages to, and remedial action with respect to, persons,
property or natural resources, (c) all fines and other penalties
associated with claims of noncompliance with any Environmental Laws,
and (d) all reasonable consultants' and attorneys' fees and costs.
The foregoing indemnity shall survive any assignment or other transfer
by any or all of the Indemnified Parties of their respective interests
in the Premises and shall remain in full force and effect regardless
of whether the Costs and Liabilities are incurred by the Indemnified
Parties in question before or after termination of the Lease.
Notwithstanding anything else contained in this Section 31.6 to the
contrary, Tenant shall have no obligation to indemnify the Indemnified
Parties under this Section 31.6, and the Indemnified Parties shall have no
right to seek indemnification from Tenant under this Section 31.6, for any
of the matters set forth in this Section 31.6 relating to Existing
Contamination (as defined in the EPA Agreement (hereinafter defined)),
unless and to the extent Tenant, its agents or contractors hereby violate
any provisions of the EPA Agreement or the PADEP Agreement (hereinafter
defined).
2.21. Landlord is party to a certain Agreement and Covenant Not
to Xxx with the United States Environmental Protection Agency in the
Matter of First Industrial Harrisburg, L.P. (Docket #III-95-48-DC)
(the "EPA Agreement"). Tenant acknowledges receipt and review of a
copy of the EPA Agreement at least twenty-one
(21) days before the date of this Lease and acknowledges that, as a
tenant of a portion of the Property, Tenant is subject to the
obligations of Landlord under the EPA Agreement and further
acknowledges that the Property and Tenant's rights under this Lease
are subject to the EPA Agreement, including, without limitation, the
rights of the United States set forth in Section VII of the EPA
Agreement (Access). As a tenant of a portion of the Property, Tenant
shall comply with the applicable terms of the EPA Agreement. In
accordance with EPA Agreement, Tenant shall execute an Agreement and
Certification of Successor in Interest or Assign (as defined in the
EPA Agreement) acknowledging Tenant's obligation to be bound by the
applicable obligations of the EPA Agreement.
2.22. Landlord and Fruehauf Trailer Corporation are parties to a
Consent Order and Agreement dated as of June 26, 1995 entered into
with the Pennsylvania Department of Environmental Resources (now known
as the Pennsylvania Department of Environmental Protection) in the
Matter of Fruehauf Parcel (the "PADEP Agreement"). Tenant
acknowledges receipt and review of a copy of the PADEP Agreement at
least twenty-one (21) days before the date of this Lease and
acknowledges that, as a tenant of a portion of the Property, Tenant is
subject to the obligations of Landlord under the PADEP Agreement and
further acknowledges that the Property and Tenant's rights under this
Lease are subject to the PADEP Agreement. As a tenant of a portion of
the Property, Tenant shall comply with the applicable terms of the
PADEP Agreement.
2.23. Landlord represents and warrants that the EPA Agreement
and the PADEP Agreement are in full force and effect and Landlord has
complied with and performed its obligations under the EPA Agreement.
Landlord shall perform obligations and maintain compliance with all
requirements applicable to it under both the EPA Agreement and the
PADEP Agreement throughout the Term and shall use commercially
reasonable efforts to cause third parties to undertake such
obligations as may be necessary to keep such agreements in effect.
Landlord agrees that it shall take such actions, if any, that (i) are
necessary to avail Tenant of the covenant not to xxx contained of the
EPA Agreement and PADEP Agreement, and (ii) may only be performed by
Landlord under the EPA Agreement and PADEP Agreement.
2.24. With respect to (a) any Release, any Threat of Release or
any discharge, threatened discharge, deposit, presence, treatment,
transport, handling or disposal or any alleged release, discharge,
deposit, presence, treatment, transport, handling or disposal of any
Hazardous Materials on, at, under, in or from the Property which
occurred prior to the commencement of the Term of this Lease, or is or
was caused or generated by Landlord, its agents or contractors, during
Landlord's ownership of the Property, and (b) any failure by Landlord
during Landlord's ownership of the Property to comply with or perform
its obligations under the EPA Agreement or the PADEP Agreement,
Landlord hereby agrees to indemnify, protect, defend and hold harmless
Tenant, and Tenant's successors and assigns, officers, directors,
shareholders, partners and employees from and against the Cost and
Liabilities, as defined in Section 31.6, and upon and under the same
terms and conditions as provided for under
Section 31.6.
2.25. Landlord shall immediately notify Tenant of any Release or
Threat of Release at or in the immediate vicinity of the Premises
caused by Landlord or of which Landlord has knowledge. Landlord shall
provide to Tenant copies of all correspondence relating to any
Release, Threat of Release or remediation or other, environmental
response action under this Section 31.11.
ARTICLE XXXII
Subdivision or other Development of the Property
2.26.
(a) Tenant acknowledges and agrees that Landlord and the
other owners of the Property, if any, have the right to develop,
alter, modify or otherwise change the Property in such manner and for
such purposes as they may deem appropriate provided that Tenant's
access to and right to use and occupy the Premises and parking areas
in accordance with the terms of this Lease are not materially and
adversely affected. Without limiting the generality of the foregoing,
Tenant acknowledges and agrees that at any time and from time to time
as Landlord or other owners of the Property shall deem necessary or
appropriate, they, or any of them shall have the right to subdivide
the Property, undertake development of the Property, or establish any
easement, dedication, or right of way over the Property. Tenant
shall, at the request of Landlord or any governmental authority,
public utility or private utility operator, and at Landlord's cost,
promptly execute, acknowledge and deliver such documents as Landlord,
any governmental authority, public utility or private utility may deem
necessary or desirable in connection with such subdivision,
development, easement, dedication or right-of-way. Landlord shall
give Tenant notice of any covenants, conditions or restrictions
imposed upon the Property.
(b) Tenant acknowledges and agrees that Landlord's
activities pursuant to Section 32.1.1 may change the description of
the Property and the denominator in the calculating Tenant's Operating
Expense Proportionate Share. Landlord shall give Tenant notice of all
such changes, and such changes shall become effective upon at least
five (5) days' prior notice by Landlord to Tenant.
ARTICLE XXXIII
Option to Renew
2.27. Tenant is granted an option (the "Renewal Option") to
extend the Term for one (1) additional period of five (5) years (the
"Renewal Term").
2.28. The Renewal Option is granted subject to the following
conditions:
(a) The Renewal Option must be exercised, if at all, by
notice from Tenant to Landlord given on or before the one hundred
eightieth (180th) day prior to the last day of the Term, time being of
the essence.
(b) At the time of exercise of the Renewal Option, Tenant
shall not have exercised the Termination Option (hereinafter defined).
If Tenant exercises the Renewal Option, Tenant shall not have any
right to exercise the Termination Option.
(c) At the time of exercise of the Renewal Option, and the
commencement of the Renewal Term, this Lease must be in full force and
effect and there may be no uncured event of default beyond an
applicable cure period in the performance of Tenant's obligations
under this Lease.
2.29. All terms, provisions and conditions contained in this
Lease shall continue to apply during the Renewal Term, except that:
(a) the Basic Rent payable during the Renewal Term shall
be the total amount of $2,342,396.40 for the Renewal Term payable in
monthly installments as set forth in Exhibit "Renewal Term Rent".
(b) there shall be no further right of renewal under this
Article XXXIII or termination under Article XXXIV of this Lease.
After the proper exercise of the Renewal Option, (i) term "Term", as
used in this Lease, shall include the Renewal Term and (ii) Landlord and
Tenant shall enter into an amendment to this Lease confirming the new date
of expiration of the Term.
ARTICLE XXXIV
Option to Terminate
2.30. Tenant is granted an option (the "Termination Option") to
terminate this Lease as of 11:59 p.m. on the last day of the
thirty-seventh (37th) calendar month of the Term (such early
termination date herein referred to as the "Early Termination Date").
2.31. The Termination Option is granted subject to the following
conditions:
(a) The Termination Option must be exercised, if at all,
by notice from Tenant to Landlord (the "Termination Notice") given on
or before the one hundred eightieth (180th) day prior to the Early
Termination Date, and by the payment by Tenant to Landlord of the sum
of (i) Two Hundred Seven Thousand Nine Hundred Eighty-Two Dollars
($207,982.00), such amount to be paid at the time of and together with
the Termination Notice, plus (ii) an amount equal to Landlord's
reasonable estimate of the amount of Tenant's Operating Expense
Proportionate Share of Operating Expenses that would have been payable
by Tenant for six (6) months of
the year commencing with the thirty-eighth (38th) month of the Term,
such amount to be due and payable within thirty (30) days after
receipt by Tenant of an invoice therefor from Landlord, accompanied by
Landlord's calculations of such estimate, time being of the essence.
(b) At the time of exercise of the Termination Option,
Tenant shall not have exercised the Renewal Option. If Tenant
exercises the Termination Option, Tenant shall not have any right to
exercise the Renewal Option, Tenant shall not have any Right of First
Offer (hereinafter defined), and Tenant shall not have any Right of
First Refusal (hereinafter defined).
(c) At the time of exercise of such Termination Option and
on the Early Termination Date, this Lease must be in full force and
effect and there shall be no uncured event of default beyond any
applicable cure period in the performance of Tenant's obligations
under this Lease.
2.32. If Tenant properly exercises the Termination Option in
accordance with this Article XXXIV, the Term of this Lease shall
terminate on the Early Termination Date.
ARTICLE XXXV
Right of First Offer
2.33.
(a) Subject to the conditions set forth in this Article
XXXV, in the event that during the First Offer Period (as hereinafter
defined) all or any portion of the First Offer Space (as hereinafter
defined) becomes available for lease from time to time, Landlord shall
offer to lease the First Offer Space to Tenant prior to leasing the
same to another person or entity. The term "First Offer Period" shall
mean the period from the Commencement Date through the date which is
one year prior to the expiration of the Term, taking into account the
Renewal Term, if the Renewal Option has been exercised by Tenant. The
"First Offer Space" consists of all or any portion of the following:
(i) the space in Building 1 currently occupied by Excel Logistics,
Inc., and (ii) any other space in Building 1 (other than the
Premises), once such space has been first leased to at least one
tenant other than Tenant and then become available for lease.
Tenant's rights hereunder are subordinate and subject to the right of
all other current and future Building 1 tenants to renew or extend
their leases, whether or not such leases grant such tenants the right
to renew or extend.
(b) Landlord shall make such offer by notice in writing to
Tenant (the "First Offer Notice"). The First Offer Notice shall
specify which portion of the First Offer Space Landlord proposes to
lease to Tenant and shall also set forth the following terms and
conditions for Tenant's lease of the First Offer Space, all of which
shall be determined by Landlord in its sole discretion:
(i) Basic Rent and Additional Rent;
(ii) any rent credits, abatements, construction
allowances and other concessions or economic terms;
(iii) the commencement date for Tenant's lease of the
First Offer Space; and
(iv) the expiration date(s) of the term of the lease
of the First Offer Space, which may be before or after the expiration
date of the Term of this Lease. If the expiration date of the term as
to the First Offer Space would occur after the expiration date of the
Term of this Lease as to the original Premises, and Tenant elects to
lease the First Offer Space pursuant to the terms of this Article
XXXV, this Lease shall continue in full force and effect as to the
First Offer Space until the expiration date of the term as to the
First Offer Space, but the Term of this Lease as to the remainder of
the Premises shall not be thereby extended.
(c)
(i) Tenant shall have the right (the "Right of First
Offer") to lease all (but not less than all) of the portion of the
First Offer Space specified in Landlord's First Offer Notice upon the
terms and conditions set forth in Landlord's First Offer Notice and in
this Section. Tenant shall exercise its Right of First Offer only by
delivering written notice to Landlord within fifteen (15) days after
Tenant's receipt of the First Offer Notice, time being of the essence.
At the time of the exercise of the Right of First Offer, this Lease
must be in full force and effect and there shall be no outstanding
uncured event of default in the performance of Tenant's obligations
under this Lease. If Tenant exercises the Right of First Offer as to
any of the First Offer Space, Tenant shall not have any right to
exercise the Termination Option.
(ii) In the event Tenant does not exercise the Right
of First Offer with respect to any particular portion of First Offer
Space offered to Tenant under this Section 35.1, Tenant shall be
deemed to have waived Tenant's Right of First Offer with respect to
such particular portion of First Offer Space, and, subject to Tenant's
Right of First Refusal (defined hereafter), Landlord may thereafter
lease such First Offer Space to any person or entity or any terms and
conditions that are not materially less favorable to Landlord than the
terms and conditions set forth in the First Offer Notice.
(d) Any First Offer Space as to which Tenant exercises its
Right of First Offer shall become part of the Premises, and, except as
otherwise set forth in the First Offer Notice, all of the terms and
conditions applicable to the Premises shall also apply to such space.
(e) Promptly following Tenant's exercise of any Right of
First Offer,
Landlord and Tenant shall execute an amendment to this Lease setting
forth the Basic Rent and the other terms of Tenant's lease of such
First Offer Space.
ARTICLE XXXVI
Right of First Refusal
2.34.
(a) Landlord hereby grants to Tenant the right of first
refusal to lease the First Refusal Space (hereinafter defined) subject
to the conditions in this Article XXXVI (the "Right of First
Refusal"). The First Refusal Space consists of that space contiguous
to the Premises on shown on Exhibit "First Refusal Space" attached to
this Lease. The term "First Refusal Period" as used in this Lease
shall mean the period from the Commencement Date through the first
anniversary of the Commencement Date.
(b) If, at any time during the First Refusal Period,
Landlord receives a bona fide offer to lease the First Refusal Space,
or any portion thereof, which Landlord intends to accept (the "Lease
Offer"), Landlord shall first send a copy of the Lease Offer to Tenant
together with notice to Tenant that Tenant has the right to lease the
First Refusal Space (or portion thereof) on precisely the same terms
and conditions specified in the Lease Offer (such notice, the "First
Refusal Notice"). Tenant shall exercise Tenant's Right of First
Refusal only by giving Landlord written notice of such exercise within
fifteen (15) days after Tenant's receipt of the First Refusal Notice,
time being of the essence. At the time of the exercise of the Right
of First Refusal, this Lease must be in full force and effect and
there shall be no outstanding uncured event of default in the
performance of Tenant's obligations under this Lease. If Tenant
exercises the Right of First Refusal as to any of the First Refusal
Space, Tenant shall not have any right to exercise the Termination
Option.
(c) If Tenant exercises Tenant's Right of First Refusal in
accordance with Section 36.1(b), then Tenant shall be obligated to
lease, strictly in accordance with the terms and conditions of the
Lease Offer, the portion of the First Refusal Space which is the
subject of the Lease Offer, and Landlord and Tenant shall enter into a
lease for such First Refusal Space in accordance with such Lease
Offer. If Tenant does not exercise its Right of First Refusal
strictly in accordance Section 36.1(b) with respect to any First
Refusal Space, Tenant shall be deemed to have waived Tenant's Right of
First Refusal with respect to such First Refusal Space, and, subject
to Tenant's Right of First Offer with respect to the First Refusal
Space, Landlord may thereafter lease such First Refusal Space to any
person or entity on any terms and conditions acceptable to Landlord,
in Landlord's sole and absolute discretion.
ARTICLE XXXVII
Relocation
2.35. If Landlord or any Affiliate (hereinafter defined) of
Landlord and Tenant execute a New Lease (hereinafter defined), and
Tenant has requested, by written request to Landlord on or before the
date of execution of the New Lease, that this Lease terminate on the
date of commencement of the payment of rent under the New Lease,
Landlord and Tenant agree that this Lease shall terminate on the date
of commencement of the payment of rent under the New Lease, provided
that Tenant has performed all of Tenant's obligations under this Lease
through and including the date of such termination and further
provided that the payment of rent has commenced under the New Lease.
As used in this Section 37.1, the term "New Lease" shall mean (a) a
lease between Landlord or an Affiliate and Tenant for space in a
building in Pennsylvania owned by Landlord or an Affiliate at the time
of execution of such new lease by Landlord or an Affiliate and Tenant,
(b) a lease with a minimum lease term of at least five (5) years, such
term commencing after the expiration of thirty seven (37) calendar
months of the Term of this Lease, (c) a lease with leased premises to
Tenant at least equal to 1.5 times the number of square feet in the
Premises at the time of execution of such New Lease, and (d) except
for the terms and conditions required by this Section 37.1, a lease
otherwise on terms and conditions mutually acceptable to Landlord or
the applicable Affiliate and Tenant. As used in this Lease, the term
"Affiliate" shall mean any entity which is Controlled By (hereinafter
defined) First Industrial Realty Trust, Inc. or First Industrial, L.P.
As used in this Section, the term (a) "Controlled By" means the
possession, directly, or indirectly through one (1) or more
intermediaries, of the power to direct or cause the direction of the
management and policies of an entity.
IN WITNESS WHEREOF, and in consideration of the mutual entry into this
Lease and for other good and valuable consideration, and intending to be
legally bound, each party hereto has caused this agreement to be duly
executed under seal.
Landlord:
FIRST INDUSTRIAL HARRISBURG, L.P., a Delaware
limited partnership, by its sole general
partner, First Industrial Harrisburg
Corporation, a Maryland corporation
Attest:
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. XxXxxxx
Print Name: Xxxxxxx X. XxXxxxx
Print Title: Regional Director
Tenant:
Attest: SED INTERNATIONAL, INC., a Delaware
corporation
/s/ Xxxxx X. Xxxxx By: /s/ Xxx X. Xxxxxx
Secretary Print Name: Xxx X. Xxxxxx
Print Title: President
SCHEDULE OF EXHIBITS
Exhibit "Site Plan"
Exhibit "Legal Description"
Exhibit "Premises"
Exhibit "Specifications"
Exhibit "Basic Rent"
Exhibit "Renewal Term Rent"
Exhibit "First Offer Space"
Exhibit "First Refusal Space"
EXHIBIT "BASIC RENT"
Monthly Amount of Basic Rent During Term
First (1st) calendar month $0. per
month
Second (2nd) calendar month through Twenty-Fifth
(25th) calendar month $32,685.38 per
month
Twenty-Sixth (26th) calendar month through Thirty-Seventh
(37th) calendar month $33,631.54 per
month
Thirty-Eighth (38th) calendar month through Forty-Ninth
(49th) calendar month $34,663.71 per
month
Fiftieth (50th) calendar month through Sixty-First
(61st) calendar month $35,695.88 per
month
EXHIBIT "RENEWAL TERM RENT"
Monthly Amount of Basic Rent During Renewal Term
Sixty-Second (62nd) calendar month through Seventy-Third
(73rd) calendar month $36,766.75 per
month
Seventy-Fourth (74th) calendar month through Eighty-Fifth
(85th) calendar month $37,869.75 per
month
Eighty-Sixth (86th) calendar month through Ninety-Seventh
(97th) calendar month $39,005.85 per
month
Ninety-Eighth (98th) calendar month through One Hundred-Ninth
(109th) calendar month $40,176.02 per
month
One Hundred-Tenth (110th) calendar month through One Hundred
Twenty-First (121st) calendar month $41,381.30 per
month
