PROVIDENT AMERICAN CORPORATION &
XXXXXXXXXX.XXX, INC.
COMMERCIAL LEASE AGREEMENT
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This Commercial Lease Agreement made and entered into as of this
1st day of December, 1999 between PROVIDENT AMERICAN CORPORATION, a Pennsylvania
corporation ("Lessor"), and XXXXXXXXXX.XXX INC., a Pennsylvania Corporation
("Lessee").
For and in consideration of the rents, mutual covenants and
agreements herein set forth, the parties hereby agree as follows:
1. EFFECTIVE DATE.
The effective date of this Lease shall be December 1, 1999 (the
"Effective Date").
2. DEMISED PREMISES.
Lessor does hereby lease to Lessee, and Lessee does hereby lease
from Lessor, for the term and upon the conditions hereinafter provided,
approximately forty-one thousand square feet (41,000 sq. ft.) of office building
and cottage located at 0000 XxXxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000,
comprising approximately six (6) acres of land, the legal description of which
is described on Exhibit "A" attached hereto (the "Demised Premises").
3. TERM.
Subject to and upon the terms and conditions set forth herein, or
in any exhibit or addendum hereto, this Lease Agreement shall continue in force
for a term of three (3) years beginning on the first (1st) day of December, 1999
and ending on the thirtieth (30th) day of November, 2003.
4. USE.
Lessee shall actively use and occupy the Demised Premises only as
offices and uses directly related thereto, and without the prior written consent
of Lessor, the Demised Premises will not be used for any other purpose. Lessee
will not use or occupy the Demised Premises for any unlawful purpose,
administrative, civil or criminal, and will comply with all applicable present
and future laws, ordinances, regulations, and orders of any governmental
authority having jurisdiction over the Demised Premises. Lessee shall observe
and comply with the reasonable rules and regulations promulgated by Lessor from
time to time. Such Rules and Regulations shall apply to Lessee and its
employees, agents, licensees, invitees, subtenants and contractors.
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5. RENTAL.
(a) Base Rental: Lessee shall pay an annual rent of $738,000 per
year (41,000 sq. ft @ $18.00 psf), the rent for which shall be divided in equal
monthly payments of $61,500, all rent payable in advance on or before the first
day of each calendar month during the term of this Lease Agreement. Rent for any
portion of a month shall be pro rated on a daily basis. Rent shall commence as
of the date of this Lease Agreement. Lessee shall pay the rent by check to
Lessor at the address Lessor shall from time to time specify, and such rent
shall be paid without demand and without deduction, set-off, or counterclaim. If
Lessor shall at any time or times accept the rent after it shall become due and
payable, such acceptance shall not excuse delay upon subsequent occasions, or
constitute, or be construed as, a waiver of any or all of Lessor's rights
hereunder.
(b) Right to Cure: If any payment required to be made hereunder
is not paid within fifteen (15) days from the date on which it is due and
payable, Lessee shall pay to the Lessor a late charge of five (5%) percent of
the amount of any such late payment. Lessor agrees not to exercise any rights
and remedies hereunder in respect of a default in the payment of any money due
hereunder until thirty (30) days after the date the same shall be due, or sixty
(60) days in the event that default involved an event other than the payment of
money.
6. POSSESSION.
Possession of the Demised Premises is to be delivered to Lessee
in an "as is" condition, on the Effective Date.
7. LESSEE'S IMPROVEMENTS.
Lessee agrees to indemnify and hold Lessor free, clear and
harmless from and against any liability, damages, claims or demands of any kind
whatsoever arising out of the purchase, installation or use of the equipment and
materials purchased and installed by Lessee on the Demised Premises, including
reasonable attorneys' fees.
8. ASSIGNMENT AND SUBLETTING.
Lessee shall not assign, transfer, mortgage or encumber this
Lease Agreement without the prior written consent of Lessor; no assignment or
transfer of this Lease Agreement shall be effectuated by operation of law or
otherwise without the prior consent of Lessor. The consent by Lessor to any
assignment, transfer, or subletting to any party other than Lessor, shall not be
construed as a waiver or release of Lessee from the terms of any covenant or
obligation under this Lease Agreement, nor shall the collection or acceptance of
rent from any such assignee, transferee, subtenant or occupant constitute a
waiver or release of Lessee of any covenant or obligation contained in this
Lease Agreement. In the event that Lessee defaults hereunder, Lessee hereby
assigns to Lessor the rent due from any approved subtenant of Lessee and hereby
authorizes each subtenant to pay the rent directly to Lessor.
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9. MAINTENANCE BY LESSEE.
Lessee will keep the Demised Premises and the fixtures and
equipment therein clean, safe and in sanitary condition, will take good care
thereof, will suffer no waste or injury thereto, and will, at the expiration or
other termination of the term of this Lease Agreement, surrender the same, broom
clean, in the same order and condition in which they are on the commencement of
the term of this Lease Agreement, ordinary wear and tear and damage by the
elements, fire and other casualty not due to the negligence of Lessee, excepted;
and upon such termination of this Lease Agreement, Lessor shall have the right
to re-enter and resume possession of the Demised Premises.
10. ALTERATIONS.
(a) If any such alteration, decoration, addition or improvement
is made without the prior written consent of Lessor, Lessor may correct or
remove the same, and Lessee shall be liable for any and all expenses incurred by
Lessor in the performance of this work. All alterations, decorations, additions
or improvements in or to the Demised Premises or the building made by either
party shall immediately become the property of Lessor and shall remain upon and
be surrendered with the Demised Premises as part thereof at the end of the term
hereof without disturbance, molestation or injury. Except as provided in this
Lease Agreement, Lessee will not make or permit anyone to make any alterations,
decorations, additions or improvements, structural or otherwise, in and to the
Demised Premises, without the prior written consent of Lessor.
(b) Lessee agrees to obtain and deliver to Lessor written and
unconditional waivers of mechanic's liens upon the real property of which the
Demised Premises is a part, for all work, labor and services to be performed and
materials to be furnished by them in connection with such work, signed by all
contractors, subcontractors, materialmen and laborers to become involved in such
work.
(c) If notwithstanding the foregoing, any mechanic's lien is
filed against the Demised Premises, or real property of which the Demised
Premises are a part, for work claimed to have been done or for materials claimed
to have been furnished to Lessee, such mechanic's lien shall be discharged by
Lessee within ten (10) days thereafter, at Lessee's sole expense, by the payment
thereof or by filing any bond required by law. If Lessee shall fail to discharge
any such mechanic's lien, Lessor may, at their option, discharge the same and
treat the cost thereof as additional rent payable with the monthly installment
of rent next becoming due; it being hereby expressly covenanted and agreed that
such discharge by Lessor shall not be deemed to waive, or release, the default
of Lessee in not discharging the same. Lessee agrees to indemnify and hold
Lessor harmless from and against any and all expenses, liens, claims or damages
to persons or property which may or might arise by reason of the making of any
such alterations, decorations, additions or improvements.
(d) All types of alterations of any kind whatsoever with respect
to the Demised Premises which have been commenced after January 1, 1999, and any
alterations commenced after the Effective Date of this Agreement, shall be at
the sole cost and expense of Lessee.
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11. SIGNS.
Lessee shall not, without the prior written consent of Lessor,
display any exterior sign on the Demised Premises.
12. REPAIRS.
Lessor agrees at Lessor's own cost and expense to make all
structural repairs to the Demised Premises and the building on the Demised
Premises, and Lessee agrees at Lessee's own cost and expense to make all repairs
to the exterior of the building on the Demised Premises, including the utilities
up to their entry into the Demised Premises, all repairs to the sidewalks, the
roof and other flooring, as the case may be. Except as herein particularly
provided, Lessor shall take good care of the Demised Premises, shall replace all
broken glass and shall do the work required to maintain the Demised Premises in
good order and repair. Lessee further agrees to repair and maintain the heating,
ventilating and air conditioning system, at Lessee's own cost and expense, to
replace the major components of such systems, including the unit itself, the
compressor and motor.
13. COMPLIANCE PUBLIC AUTHORITIES.
Lessee shall during the term hereby granted comply with all
statutes, ordinances, rules, orders, regulations or requirements of the federal,
state and city governments and of any and all their departments and bureaus for
the correction, prevention and abatement of nuisances, or other grievances, in
or upon the Demised Premises, which must be complied with by reason of the
nature of the use of the Demised Premises by Lessee, and shall also comply with
and execute all rules, orders, and regulations issued or made by the Board of
Fire Underwriters for the prevention of fires, which must be complied with by
reason of the nature of the use of the Demised Premises by the Lessee, but not
otherwise. In no event, however, shall Lessee be required to make structural
repairs, it being understood and agreed that such structural repair shall be
Lessor's responsibility at its own expense if same shall be necessary to comply
with the aforesaid statutes, ordinances, rules, orders, regulations or
requirements, unless such structural repairs are necessitated by Lessee's
negligence.
14. ACCESS TO DEMISED PREMISES.
(a) Lessor, their duly authorized agents and representatives
shall have the right, following reasonable notice to Lessee (except in the case
of an emergency), to enter into and upon the Demised Premises, or any part
thereof, during Lessee's business hours for the purpose of examining the same or
making such repairs therein as may be necessary for the safety and preservation
thereof.
(b) Lessor shall have the right, following reasonable notice to
Lessee, during Lessee's business hours, to show the Demised Premises to persons
wishing to purchase the same, and shall also have the right, following
reasonable notice to Lessee, during the three months next preceding the
expiration of the term hereby granted, and any renewal term, unless Lessee shall
have exercised any right to renew this Lease Agreement as hereinafter provided,
to show the Demised Premises to persons wishing to rent the same and at the same
time to place notices on the front of the Demised Premises, but not on or in any
door or show window, offering the Demised Premises "For Rent."
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(c) Lessee acknowledges that the Demised Premises are a portion
of an office building wherein Lessor conducts Lessor's business. Lessee agrees
not to interfere with the conduct of the business of Lessor.
15. WARRANTY ON USE.
Lessor warrants and represents to Lessee that on the date of
delivery of possession of the Demised Premises to Lessee the Demised Premises
shall be free of all violations, orders or notices of violations of all public
or quasi-public authorities. Lessor warrants that Lessee shall be permitted by
the authorities having jurisdiction thereover to occupy the Demised Premises for
the uses and purposes herein provided.
16. CONDEMNATION.
In the event that during the term of this Lease Agreement the
Demised Premises or any part thereof, or the use of possession thereof, is taken
in condemnation proceedings or by any right of eminent domain or for any public
or quasi-public use, this Lease Agreement and the term hereby granted shall
terminate and expire on the date when possession shall be taken by the
condemnor, and rent and all other charges payable hereunder shall be apportioned
and paid in full up to that date and all prepaid unearned rent and all other
charges payable hereunder shall forthwith be repaid by Lessor to Lessee and
neither Lessor nor Lessee shall be liable to the other for rent and all other
charges payable hereunder, damage, or otherwise, for, or by reason of any matter
or thing occurring thereafter; provided, however, that if a part only of the
Demised Premises shall be so taken or condemned, and, in Lessor's reasonable
opinion, the remaining portion of Demised Premises shall be adequate and
suitable for use by Lessee or their subtenant for the purposes of its business,
then this Lease Agreement shall continue in full force and effect except that
the rent and all other charges payable hereunder shall be reduced in the
proportion that the gross floor area of the part so taken or condemned shall
bear to the total gross floor area of the Demised Premises immediately prior to
such taking. In such case, Lessor shall, at Lessor's own expense, as speedily as
circumstances permit, repair all damage to the Demised Premises and the
building, as shall have been caused by such partial condemnation and taking
(including but not limited to the basic building, the store front and all glass
therein). The rent and other charges payable hereunder shall xxxxx until the
Demised Premises have been restored to a tenantable condition including a
reasonable period for Lessee to refixture and restock the Demised Premises.
Lessee hereby waives all rights in condemnation awards, except awards for
Lessee's fixtures and equipment and any separate awards which may be made for
Lessee's relocation expenses and the like.
17. SUBORDINATION OF LEASE AGREEMENT.
(a) This Lease Agreement shall be subject and subordinate to the
lien of any bank or institutional or other mortgage or mortgages now or
hereafter in force against the land and buildings of which the Demised Premises
are a part, and to all advances made upon the security thereof, provided the
holder of any such mortgage shall execute and deliver to Lessee an agreement
that it will recognize this Lease Agreement and not disturb Lessee's possession
of the Demised Premises in the event of foreclosure if Lessee is not then in
default hereunder, and Lessee agrees, upon receipt of such agreement, to execute
such further instrument or instruments as may be necessary to subordinate this
Lease Agreement to the lien of any such mortgage.
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(b) Lessor warrants that there are no mortgages on Lessor's
property which are or will be prior to the lien of this Lease Agreement. Lessor
agrees that if any mortgages should be prior in time at the execution of this
Lease Agreement, then upon the execution and delivery of this Lease Agreement
Lessor will deliver to Lessee a recognition and non-disturbance agreement from
any such mortgagee.
18. EXCLUSION OF LIABILITY.
(a) Lessor or their agents shall not be liable for any injury or
damage to persons or property resulting from steam, gas, electricity, water,
rain or snow or leaks from any part of the building, or from the pipes,
appliances or plumbing works or from the roof, street or subsurface or from any
other place or by dampness or by any other cause of whatsoever nature unless
caused by or due to the acts, omissions or negligence of Lessor, its agents,
servants or employees; nor shall Lessor or its agents be liable for any such
damage caused by other tenants or persons in the building or caused by any of
their operations in construction or any public or quasi-public work.
(b) Lessee or its agents shall not be liable for any injury or
damage to persons or property resulting from or caused by the acts, omissions,
and/or negligence of Lessor.
19. SUBROGATION/RECORDING. Each of the parties hereto hereby waives any
and all rights of action for negligence against the other party hereto, which
may hereafter arise during the term hereof for damage to the Demised Premises or
to the property therein resulting from any fire or other casualty of the kind
covered by standard fire insurance policies with extended coverage, regardless
of whether or not, or in what amounts, such insurance is now or may hereafter be
carried by the parties hereto, or either of them.
20. UTILITIES.
Lessor shall provide all necessary utility lines and service into
the Demised Premises for the operation of Lessee's business. Lessee shall
provide and maintain a water meter for the purpose of measuring water
consumption in the Demised Premises, and Lessee agrees to pay for all water so
consumed by it during the term hereof, and to pay any public sewer charges
measured by such consumption or otherwise. Lessee further agrees to pay for all
other utilities, including gas and electricity, consumed by them in the Demised
Premises during the term hereof, and Lessee agrees to provide and maintain
adequate meters for the purpose of measuring all such utilities consumed.
21. TAXES.
Lessee agrees to pay all taxes levied or assessed against the
Demised Premises, and agrees to pay to the local tax authorities and other
governmental agencies throughout the term of this Lease Agreement and any
renewal thereof, all real estate taxes, and all assessments which may be levied
against the Demised Premises and the land and buildings comprising the same.
Lessee agrees to pay to the local tax authorities and other governmental
agencies, throughout the term of this Lease Agreement and any renewal thereof,
all personal property taxes which may be levied against Lessee's merchandise,
trade fixtures and other personal property in and about the Demised Premises.
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22. INSURANCE.
(a) At all times Lessee shall carry fire and extended coverage
insurance for the building comprising the Demised Premises for its reasonable
replacement value. Lessee warrants and agrees that all proceeds received from
such insurance shall be used in the first instance in accordance with Lessee's
obligations under Paragraph 23 of this Lease Agreement. Lessee shall also
provide Lessor's liability coverage in single policy limits of not less than
$2,000,000 for personal injury and $1,000,000 for property damage for the
Demised Premises' parking and common areas.
(b) Lessee agrees to pay and maintain in effect in respect to the
Demised Premises insurance under a general blanket public liability policy, with
single policy limits of $1,000,000 for personal injuries and $2,000,000 for
property damage, and shall deliver to Lessor a certificate of such insurance
naming Lessor as an "additional" insured.
23. FIRE.
In the case the Demised Premises shall be damaged in whole or in
part by fire, flood, tornado, or by the elements, or by Act of God, or the
public enemy, or otherwise, Lessee shall, if such damage shall occur to the
Demised Premises, give prompt notice thereof to Lessor who shall, at Lessor's
own expense, as speedily as circumstances permit, repair the damage and restore
the Demised Premises and the building to the same condition as existed at the
time of the occurrence of such damage. Lessee shall be entitled to an abatement
of the fixed rent and other charges payable hereunder for the period during
which the Demised Premises are rendered untenantable or incapable of use for the
normal conduct of Lessee's business therein including a reasonable period for
Lessee to refixture and restock the Demised Premises. In the event that a part
only of the Demised Premises is rendered untenantable or incapable of such use,
the fixed rent and all other charges payable hereunder shall be reduced in the
proportion which the gross floor area of the part of the Demised Premises bears
to the gross floor area of the entire Demised Premises. If Lessor shall
determine not to repair or restore the Demised Premises as set forth herein
within ninety (90) days after the date the damage has occurred, Lessor shall
give written notice to such effect to Lessee, and in which event this Lease
Agreement shall terminate as of the date of such notice, and rent and other
charges payable hereunder shall be apportioned and paid up to the date of damage
only.
24. LESSOR'S TITLE.
Lessor covenants that Lessor has good and marketable title to the
Demised Premises in fee simple absolute, free of liens, encumbrances (excluding
mortgages) and that there are no restrictive covenants or exclusive use
provisions in other tenants' leases, or other agreements, zoning laws or other
ordinances or regulations which will prevent Lessee from occupying the Demised
Premises for the purposes herein provided.
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25. QUIET ENJOYMENT.
Lessor hereby covenants that Lessee, on paying the rent and
performing all and singular the covenants and conditions of this Lease Agreement
on their part to be performed, shall and may peaceably and quietly have, hold
and enjoy the Demised Premises for the full term hereby granted including any
renewal or renewals thereof, free from molestation, eviction or disturbance by
Lessor or by any other person or persons lawfully claiming or to claim the same.
26. SUNDAY/HOLIDAY BUSINESS.
Without intending to limit any other rights of Lessee hereunder,
Lessee shall have the right but not the obligation to keep the Demised Premises
open for business on Sundays or holidays if permitted by law.
27. LIABILITY FOR DAMAGE TO PERSONAL PROPERTY AND PERSON.
Lessor shall not be liable for any accident or damage caused by
electric lights or wires or any accident or damage which may occur through the
operation of elevators, heating, lighting or plumbing apparatus, or any accident
or injury occurring in connection with business of Lessee on the Demised
Premises and its services unless caused by the negligence of Lessor. Lessor will
not be liable for loss of or damage to property of Lessee caused by rain, snow,
water or steam that may leak into or flow from any part of the building, through
any defects in the roof or plumbing or from any other source, including but not
limited to acts or omissions on the part of other lessees of the Demised
Premises or persons using the Demised Premises or present therein not resulting
from acts of negligence on the part of Lessor. All goods, property or personal
effects stored or placed by Lessee in or about the building shall be at the risk
of Lessee unless the loss is caused by the negligence of Lessor. It is
understood and agreed that Lessee covenants to save Lessor harmless and
indemnified from all loss, damage, liability or expense incurred by reason of
Lessee's neglect in its use of the Demised Premises or of the building or any
part thereof, including the use of the water, steam, electronic or other systems
and the injury, loss, or damage to any person or property upon or about the
Demised Premises.
28. NO PARTNERSHIP.
Nothing contained in this Lease Agreement shall be deemed or
construed to create a partnership or joint venture of or between Lessor and
Lessee, or to create any other relationship between the parties hereto other
than that of Lessor and Lessee.
29. NO REPRESENTATIONS BY LESSOR.
Neither Lessor nor any agent or employee of Lessor has made any
representations or promises with respect to the Demised Premises or the building
except as herein expressly set forth, and no rights, privileges, easements or
licenses are acquired by Lessee except as herein set forth. Lessee, by taking
possession of the Demised Premises shall accept the same "as is", and such
taking of possession shall be conclusive evidence that the Demised Premises is
in good and satisfactory condition at the time of such taking of possession.
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30. REMEDIES OF LESSOR.
If Lessee:
(a) Does not pay in full when due any and all
installments of rent and/or any other charge or payment herein reserved,
included, or agreed to be treated or collected as rent and/or any other charge,
expense, or cost herein agreed to be paid by Lessee (including all expenses
incurred by Lessee for improvements or alterations to the Demised Premises by
Lessor) and with respect to such payments time shall be deemed to be of the
essence; or
(b) Violates or fails to perform or otherwise breaks
any covenant or agreement herein contained; or
(c) Vacates the Demised Premises or removes or
attempts to remove or manifests an intention to remove any goods or property
therefrom otherwise than in the ordinary and usual course of business without
having first paid and satisfied Lessor in full for all rent and other charges
then due or that may thereafter become due until the expiration of the then
current term, above mentioned; or
(d) Becomes embarrassed or insolvent, or makes an
assignment for the benefit of creditors, or if a petition in bankruptcy is filed
by or against Lessee, or a xxxx in equity or other proceeding for the
appointment of a receiver for Lessee is filed, or if proceedings for
reorganization or for composition with creditors under any State or Federal law
be instituted by or against Lessee, of if the real or personal property of
Lessee shall be sold or levied upon by any Sheriff, Xxxxxxxx or Constable; then
and in any or either of the events, there shall be deemed to be a breach of this
Lease Agreement, and:
(1) The rent for the entire unexpired term of
this Lease Agreement, as well as all other charges, payments, costs and expenses
herein agreed to be paid by Lessee, or at the option of Lessor any part thereof,
and also all costs and officers' commissions including watchmen's wages and
further including the five percent chargeable by Act of Assembly to Lessee,
shall, in addition to any and all installments of rent already due and payable
and in arrears and/or any other charge or payment herein reserved, included or
agreed to be treated or collected as rent, and/or any other charge, expense or
cost herein agreed to be paid by Lessee which may be due and payable and in
arrears (including all expenses incurred by Lessee for improvements or
alterations to the Demised Premises by Lessor), be taken to be due and payable
and in arrears as if by the terms and provisions of this Lease Agreement the
whole balance of unpaid rent and other charges, payments, taxes, costs and
expenses were on that date payable in advance; and if this Lease Agreement or
any part thereof is assigned, or if the Demised Premises or any part thereof is
sublet, Lessee hereby irrevocably constitutes and appoints Lessor Lessee's agent
to collect the rents due from such assignee or sub-lessee and apply the same to
the rent due hereunder without in any way affecting Lessee's obligation to pay
any unpaid balance of rent due hereunder;
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(2) At the option of Lessor, this Lease
Agreement and the terms hereby created shall determine and become absolutely
void without any right on the part of Lessee to save the forfeiture by payment
of any sum due or by other performance of any condition, term or covenant
broken; whereupon, Lessor shall be entitled to recover damages for such breach
in an amount equal to the amount of rent reserved for the balance of the term of
this Lease Agreement.
31. FURTHER REMEDIES OF LESSOR.
In the event of any default as above set forth in Paragraph 30,
Lessor or anyone acting on Lessor's behalf, at Lessor's option:
(a) May rent the Demised Premises or any part or parts
thereof to such person or persons for such term or terms (which may be for a
term extending beyond the term of this Lease Agreement), and at such rentals as
may, in Lessor's discretion, be best; and Lessee shall be liable for any loss of
rent for the balance of the then current term. Any such re-entry of rerenting by
Lessor under the terms hereof shall be without prejudice to Lessor's claim for
actual damages, and shall under no circumstances, release Lessee from liability
for such damages arising out of the breach of any of the covenants, terms, and
conditions of this Lease Agreement; and
(b) (i) With respect to any portion of the Demised
Premises which is vacant or which is physically occupied by Lessee, may remove
all persons and property therefrom, and store such property in a public
warehouse or elsewhere at the cost of and for the account of Lessee, or may
change the locks on any doors or windows to the Demised Premises and allow such
property to stand as is and where is, without service or notice or resort to
legal process (all of which Lessee expressly waives) and without being deemed
guilty of trespass or becoming liable for any loss or damage which may be
occasioned thereby. Lessor shall have a lien for the payment of all sums agreed
to be paid by Lessee herein upon all Lessee's property, which lien is to be in
addition to any of Lessor's liens now or hereafter provided by law; and
(ii) may enter the Demised Premises, and
without demand proceed by distress and sale of the goods there found to levy the
rent and/or the charges herein payable as rent, and all costs and officers'
commissions, including watchmen's wages and sums chargeable to Lessor, and
further including a sum equal to five percent of the amount of the levy as
commissions to the constable or other person making the levy, shall be paid by
Lessee, and in such case all costs, officers' commissions and other charges
shall immediately attach and become part of the claim of Lessor for rent, and
any tender of rent without the costs, commissions and charges made after the
issue of a warrant of distress shall not be sufficient to satisfy the claim of
Lessor. Lessee hereby expressly waives in favor of Lessor the benefit of all
laws now made or which may hereafter be made regarding any limitation as to the
goods upon which, or the time within which, distress is to be made after removal
of goods and further relieves Lessor of the obligations of proving or
identifying such goods, it being the purpose and intent of this provision that
all goods of Lessee, whether upon the Demised Premises or not, shall be liable
to distress for rent; and
(c) May proceed as a secured party under the
provisions of the Uniform Commercial Code against the goods in which Lessor has
been granted a security interest; and
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(d) May have an exercise any and all other rights
and/or remedies; granted or allowed landlords by any existing or future Statute,
Act of Assembly, or other law of this state in cases where a landlord seeks to
enforce rights arising under a lease agreement against a tenant who has
defaulted or otherwise breached the terms of such lease agreement; subject,
however, to all of the rights granted or created by any such Statute, Act of
Assembly, or other law of this state existing for the protection and benefits of
tenants; and
(e) May have and exercise any and all other rights and
remedies contained in this Lease Agreement;
(f) If Lessee is late with any payment due under this
Lease Agreement, in addition to any other remedies available to Lessor, Lessor
shall have the right to collect a service charge computed at the rate of five
percent per month to be imposed for each month or portion of a month in which
the delinquency continues until the account is made current by Lessee; and
(g) Lessee does hereby irrevocably authorize and
empower the Prothonotary or any attorney of any court of record within the
United States or elsewhere to appear for the Lessee, and confess a judgment or
judgments against Lessee in favor of Lessor at any time and from time to time
after Lessee's default under said Lease in an amount equal to all amounts due by
Lessee to Lessor under the Lease (including without limitation all rent
accelerations), with 10% added for collection fees and with costs of suit with
release of all errors and without stay of execution and inquisition. Extension
upon any levy on real estate is hereby waived and condemnation agreed to and the
exemption of all property from levy and sale on any execution thereon is waived,
and no benefit of exemption shall be claimed under or by virtue of any laws now
or hereafter enacted. The authority herein granted to confess judgment shall not
be exhausted by any exercise thereof but shall continue from time to time and at
all times until full payment of all amounts due from Lessee to Lessor under the
Lease. If a true copy of this instrument shall be filed in any action, it shall
not be necessary to file the original as a warrant of attorney and any statute
or rule of court to the contrary is hereby expressly waived.
32. RIGHT OF ASSIGNEE OF LESSOR.
Lessor shall have the right to assign this Lease Agreement
without the consent of Lessee. The right to enforce all of the other provisions
of this Lease Agreement hereinabove provided for may, at the option of any
assignee of this Lease Agreement, be exercised by any assignee of the Lessor's
right, title and interest in this Lease Agreement in his, her or their own name,
notwithstanding the fact that any or all assignments of the right, title, and
interest may not be executed and/or witnessed in accordance with the Act of
Assembly of May 28, 1915, 1 Sm. L. 99, and all supplements and amendments hereto
that have been or may hereafter be passed and Lessee hereby expressly waives the
requirements of the Act of Assembly and any and all laws regulating the manner
and/or form in which such assignments shall be executed and witnessed.
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33. REMEDIES CUMULATIVE.
All of the remedies herein given to Lessor and all rights and
remedies given to them by law and equity shall be cumulative and concurrent. No
determination of this Lease Agreement or the taking or recovering of the Demised
Premises shall deprive Lessor of any of his remedies or actions against Lessee
for rent or other sums due at the time or which, under the terms hereof, would
in the future become due as if there has been no determination, nor shall the
bringing of any action for rent or breach of covenant, or the resort to any
other remedy herein provided for the recovery of rent be construed as a waiver
of the right to obtain possession of the Demised Premises.
34. TERMINATION OF LEASE AGREEMENT.
It is hereby mutually agreed that either party hereto may
terminate this Lease Agreement at any time upon mutual written agreement of both
parties or at the end of each term by giving to the other party written notice
thereof at least ninety calendar days prior thereto, (except that Lessor shall
not have the right at the end of the original term or first renewal term if
Lessee exercises the option to renew granted in Paragraph 38 hereof), but in
default of such notice, this Lease Agreement shall continue upon the same terms
and conditions in force immediately prior to the expiration of the term hereof
as are herein contained for a further period of one year and so on from year to
year unless or until terminated by either party hereto, giving the other ninety
(90) calendar days written notice for removal previous to expiration of the then
current term; PROVIDED, however, that should this Lease Agreement be continued
for a further period under the terms hereinabove mentioned, and further
provided, however, that if Lessor shall have given such written notice prior to
the expiration of any term hereby created, of his intention to change the terms
and conditions of this Lease Agreement, and Lessee shall not within thirty (30)
calendar days from such notice notify Lessor of Lessee's intention to vacate the
Demised Premises at the end of the then current term, Lessee shall be considered
as Lessee under the terms and conditions mentioned in such notice for a further
term as above provided, or for such further term as may be stated in such
notice. In the event that Lessee shall give notice, as stipulated in this Lease
Agreement, of the end of the present term, or any renewal or extension thereof,
and shall fail or refuse so to vacate the same on the date designated by such
notice, then it is expressly agreed that Lessor shall have the option either (a)
to disregard the notice so given as having no effect, in which case all the
terms and conditions of this Lease Agreement shall continue thereafter with full
force precisely as if such notice had not been given, or (b) Lessor may, at any
time within thirty days after the present term or any renewal or extension
thereof, as aforesaid, give Lessee ten days' written notice of his intention to
terminate the Lease Agreement; whereupon Lessee expressly agrees to vacate the
Demised Premises at the expiration of the period of ten days specified in the
notice. All powers granted to Lessor by this Lease Agreement may be exercised
and all obligations imposed upon Lessee by this Lease Agreement shall be
performed by Lessee as well during any extension or renewal of the original term
of this Lease Agreement as during the original term itself.
35. NOTICES.
All notices required to be given by Lessor to Lessee shall be
sufficiently given by leaving the same upon the Demised Premises or by certified
mail, return receipt requested, but notices given by Lessee to Lessor must be
given by certified mail, and as against Lessor the only admissible evidence that
notice has been given by Lessee shall be a certified return receipt signed by
Lessor or their agent.
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36. LEASE AGREEMENT CONTAINS ALL AGREEMENTS.
It is expressly understood and agreed by and between the parties
hereto that this Lease Agreement and the riders attached hereto and forming a
part hereof set forth all the promises, agreements, conditions and
understandings between Lessor or his Agent and Lessee relative to the Demised
Premises, and that there are no promises, agreements, conditions, or
understandings, either oral or written, between them other than are herein set
forth. It is further understood and agreed that, except as herein otherwise
provided, no subsequent alteration, amendment, change or addition to this Lease
Agreement shall be binding upon Lessor or Lessee unless reduced to writing and
signed by them.
37. HEIRS AND ASSIGNEES.
All rights and liabilities herein given to, or imposed upon, the
respective parties hereto shall extend to and bind the several and respective
successors and assigns of the parties; and if there shall be more than one
Lessee, they shall all be bound jointly and severally by the terms, covenants
and agreements herein, and the word "Lessee" shall be deemed and taken to mean
each and every person or party mentioned as a Lessee herein, be the same one or
more; and if there shall be more than one Lessee, any notice required or
permitted by the terms of this Lease Agreement may be given by or to any one
thereof, and shall have the same force and effect as if given by or to all
thereof. The words "his" and "him" wherever stated herein, shall be deemed to
refer to the "Lessor" or "Lessee" whether such Lessor or Lessee be singular or
plural and irrespective of gender. No rights, however, shall inure to the
benefit of any assignee of Lessee unless the assignment to such assignee has
been approved by Lessor in writing as aforesaid.
38. OPTION TO EXTEND LEASE. Provided that Lessee is not then in
default, Lessee shall have the option to extend the term of this lease for two
(2) separate and successive periods of 3 years each by giving written notice of
its intention to extend the lease at least thirty (30) days prior to the
expiration of the initial term, or if the initial term has been extended, at
least thirty (30) days prior to the expiration of the extended term. The base
rental for the first renewal term shall be the base rental for the initial term
as stated in Paragraph 5(a) adjusted by the average Consumer Price Index for the
Philadelphia Region for the six (6) month period immediately prior to the
renewal date, payable in equal monthly installments. The base rental for the
second renewal term shall be the base rental for the first renewal term as
stated in Paragraph 5(a) adjusted by the average Consumer Price Index for the
Philadelphia Region for the six (6) month period immediately prior to the
renewal date, payable in equal monthly installments. All of the provisions of
this Lease, including the provisions of Paragraph 5(a) shall be applicable with
respect to any renewal term.
39. SEVERABILITY.
If any provision or portion of any provision of this Lease
Agreement shall be determined to be void or illegal for any reason, only such
provision or portion thereof which is void or illegal shall be deemed deleted
but the remaining provisions shall not be impaired and shall remain fully in
effect.
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40. HEADINGS NO PART OF LEASE AGREEMENT.
Any headings preceding the text of the several paragraphs and
subparagraphs hereof are inserted solely for convenience of reference and shall
not constitute a part of this Lease Agreement nor shall they effect its meaning,
construction or effect.
41. BROKERS.
Lessee and Lessor hereby certify that no real estate broker or
other intermediary has or will represent it in this transaction and that no
brokerage commission or finder's fee has been earned by any third party as a
result of this Lease Agreement.
42. DAMAGE TO DEMISED PREMISES.
Upon notice of termination of this Lease Agreement by either
party hereto, Lessor shall inspect the Demised Premises to determine damage, if
any, for which Lessee is liable and submit an estimate for repair of same to
Lessee for payment. Lessee hereby agrees to pay such amount and Lessee's failure
to do so, shall entitle Lessor to all of his rights and remedies under this
Lease Agreement to effect payment.
43. PRIOR LEASES.
This Commercial Lease Agreement shall supersede all prior lease
agreements between the parties relative to the Demised Premises, and all such
leases shall be terminated and of no further force or effect; provided, however,
that any unfulfilled obligation of Lessee under any prior lease shall remain in
full force and effect.
IN WITNESS WHEREOF, and intending to be legally bound, the parties
hereto have executed this Lease Agreement as of the day and year set forth
above.
LESSOR:
PROVIDENT AMERICAN CORPORATION
By:_____________________________________
LESSEE:
XXXXXXXXXX.XXX, INC.
By:_____________________________________
Xxxxxxx Xxxxxx, President
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EXHIBIT "A"
Description of Premises
ALL THAT CERTAIN lot or parcel of land, with the buildings and improvements
thereon erected, SITUATE in the Township of East Norriton, County of Xxxxxxxxxx
and Commonwealth of Pennsylvania, bounded and described according to a
Subdivision Plan of Village East, made by Xxxxxxxx Associates, Consulting
Engineers and Surveyors, dated January 30, 1978, last revised November 29, 1978
as recorded in the Office of the Recorder of Deeds of Xxxxxxxxxx County in Plan
Book A-34 page 94, as follows, to wit:
BEGINNING at a point on the title line in the bed of DeKalb Pike (50.00 feet
wide-reserved to a width of 75.00 feet by the addition of 25.00 feet on the
Southeasterly side thereof), a corner of this and lands of St. Patrick's Church,
as shown on said Plan; thence extending form said point of beginning North 45
degrees, 13 minutes, 45 seconds East through the bed of DeKalb Pike 366.00 feet
to a point a corner of land of Eglin Meyer and Xxxxxxxxx X. Cynwyn, as shown on
said plan; thence extending South 43 degrees, 52 minutes, 15 seconds East along
land of Xxxxx and Cynwyn and land of Xxxxxxxx X. Xxxx 767.70 feet to a point a
corner of a Detention Basin Area, as shown on said Plan; thence extending along
line of said Detention Basin Area the three following courses and distances: (1)
South 45 degrees, 30 minutes, 00 seconds West 60.00 feet to a point, (2) South
01 degree, 30 minutes, 00 seconds West 86.37 feet to a point, and (3) South 45
degrees, 30 minutes, 00 seconds West 127.67 feet to a point on the Northwesterly
side of Xxxxx Xxxx (50.00 feet wide); thence extending along said side of Xxxxx
Xxxx the two following courses and distances: (1) on the arc of a curve, curving
to the left, in a Southwestwardly direction, having a radius of 175.00 feet, the
arc distance of 97.14 feet to a point of tangent, and (2) South 46 degrees, 18
minutes, 00 seconds West 27.08 feet to a point a corner; thence extending North
43 degrees, 42 minutes, 00 seconds West 798.06 feet to a point on the title line
in the bed of DeKalb Pike, the first mentioned point and place of the beginning.
BEING Lot No. 24, as shown on said Plan; KNOWN as 0000 XxXxxx Xxxxxx.
BEING Parcel No. 33-00-01960-00-5 of the Xxxxxxxxxx County Commissioners
Registry.
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