Exhibit 10.4
AGREEMENT OF LEASE
Office Building
THIS AGREEMENT OF LEASE by and between Liberty Property Limited Partnership
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organized and existing under the laws of Pennsylvania (herein call "Landlord")
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and Premier Solutions Ltd., a Corporation organized and existing under the laws
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of Pennsylvania (herein called "Tenant").
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WITNESSETH:
1. PREMISES. As used in this Article the term building shall mean the
building(s) containing approximately 25,000 rentable square feet (herein called
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the "Building") on a tract of land (herein called the "Lot") located at 000
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Xxxxxxxxxx Xxxxx Xxxxxxx, XX 00000 (the Building, the Lot and any other
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improvements therein being herein collectively called the "Property"). Landlord
does hereby demise and let unto Tenant and Tenant does hereby lease and take
from Landlord (or the term and upon the terms, covenants, conditions and
provisions set forth herein all that certain portion of the Building containing
25,000 square feet as shown outlined in red on Exhibit "A" hereto which shall be
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completed in accordance with Article 2 hereof having a street address of 000
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Xxxxxxxxxx Xxxxx Xxxxxxx, XX 00000 (herein called the "Premises") together
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with the right to use driveways, sidewalks and loading and parking areas,
lobbies hallways and other common area facilities.
*See attached Article 34.
3. TERM. The term of this lease shall commence on the earlier of substantial
completion or September 1 (herein called the "Commencement Date"). If the date
of substantial completion is delayed as a result of changes requested by Tenant,
the term of the lease shall commence as if the premises were substantially
complete on the originally scheduled date, as extended for reasons other than
those caused by Tenant. Unless sooner terminated in accordance with the terms
hereof, the term of this lease shall end without the necessity for notice from
either party to the other at 12:01 a.m. local time on April 1, 2001 (herein
called the "Expiration Date").
4. USE OF PREMISES. Tenant shall occupy the Premises throughout the term and
shall use the same for and only for general office purposes. The building is
designed to normal office building standards for floor-loading capacity. Tenant
shall not use the Premises in such a way as to exceed such load limits.
5. RENT.
(a) MINIMUM ANNUAL RENT. Tenant shall pay a minimum annual rent of See
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Attached Article 33 without notice of demand, and without setoff, in equal
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monthly installments of See Attached Article 33 in advance, on the first day of
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each calendar month during the term of this lease. Provided, however, that rent
for the first full month shall be paid upon the signing of this lease. If the
Commencement Date shall fall on a day other than the first day of a calendar
month, the rent shall be apportioned pro rata on a per diem basis for the period
between the Commencement Date and the first day of the following calendar month
and such apportioned sum shall be paid on such Commencement Date. In addition,
Tenant shall pay Landlord without setoff the additional rent as hereinafter set
forth. Unless otherwise specifically provided, all sums shall be paid to
Landlord at the address given in Article 30 hereof.
(b) BASE OPERATING COST. In addition to the minimum annual rent, Tenant
shall pay annually Eighty One Thousand Two Hundred Fifty Dollars and 00/100
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($81,250.00) herein called the "Base Operating Cost" in equal monthly
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installments concurrent with and in the same manner as Tenant's payment of the
minimum annual rent and adjustments thereto. The Base Operating Cost represents
Landlord's estimate of Tenant's share of the annual operating costs for the 1995
calendar year: to the extent the Base Operating Cost exceeds Tenant's share of
the annual operating costs as calculated for any given calendar year, Landlord
shall credit such excess to Tenant's account for the following year.
(c) ADDITIONAL RENT.
(i) ANNUAL OPERATING COSTS. As used herein the term "annual operating
costs" shall mean the costs to Landlord of operating and maintaining the
Property during each calendar year of the term. Such costs shall include by way
of example rather than limitation: insurance premiums, fees, impositions, costs
for repairs, maintenance, service contracts, management fees, governmental
permits, overhead expenses, and the costs of any other items attributable to
operating or maintaining any or all of the Property excluding any costs which
under generally accepted accounting principles are capital expenditures.
(ii) COMPOSITION OF TENANT'S SHARE OF ANNUAL OPERATING COSTS. After the
end of each calendar year of the term, Landlord shall compute Tenant's share of
the annual operating costs described in Paragraph 5 (d) (i) incurred during such
calendar year by (A) calculating an appropriate adjustment, using generally
accepted accounting principles to avoid allocating to Tenant or to any other
tenant (as the case may be) those specific costs which Tenant or any other
tenant has agreed to pay; (B) calculating an appropriate adjustment, using
generally accepted accounting principles, to avoid allocating to any vacant
space those specific costs which were not incurred for such space; and (C)
multiplying the adjusted annual operating costs by a fraction, the numerator of
which shall be the square foot area of the Premises and the denominator of which
shall be the rentable square foot area of the Building.
(iii) PAYMENTS. Tenant, promptly upon being billed therefor, shall pay to
Landlord as additional rent the amount by which Tenant's share of the annual
operating costs exceeds the Base Operating Cost. If only part of any calendar
year shall fall within the term, the amount computed as additional rent with
respect to such calendar year under the foregoing provisions shall be prorated
in proportion to the portion of such calendar year falling within the term. The
expiration of the term prior to the end of such calendar year shall not impair
Tenant's obligation to pay such prorated portion as aforesaid. Notwithstanding
the foregoing provisions of this Article to the contrary, Landlord shall have
the right, at its option, to make from time to time during the term a reasonable
estimate of the additional rent which may become due
hereunder with respect to any calendar year, and to require Tenant to pay to
Landlord, at the time the monthly installments of minimum annual rent are
payable, an amount equal to the sum obtained by dividing the estimate of the
additional rent by the number of months remaining in such year. Landlord shall
cause the actual amount of Tenant's share of the annual operating costs to be
computed and certified to Tenant within one hundred and twenty (120) days
following the end of such calendar year, and Tenant or Landlord, as the case may
be, shall within ten (10) days of receipt of the certification thereof pay to
the other the amount of any deficiency or overpayment then due from one to the
other. In lieu thereof, at Landlord's option, Landlord may credit Tenant's
account for any overpayment. Tenant shall have the right to inspect the books
and records used by Landlord in calculating the annual operating costs within
sixty (60) days of receipt of the certification during regular business hours
after having given Landlord written notice at least forty-eight (48) hours prior
thereto; provided, however, that Tenant shall make all payments of additional
rent without delay, and that Tenant's obligation to pay such additional rent
shall not be contingent on any such right.
(d) EXEMPTION FROM TAXATION. It is contemplated by the parties hereto
that the construction of the Premises will be financed by a lender in such a way
that the interest payable upon such loan will be exempt from taxation under
Subtitle "A" of the United States Internal Revenue Code of 1954, as amended.
Tenant hereby agrees not to do anything which would endanger the tax exempt
status of the interest referred to herein, and agrees to file with the Internal
Revenue Service, as and when applicable, from time-to-time, such statements,
applications, elections or other written filings necessary to establish and/or
maintain the tax exempt status of the interest referred to herein, and to
certify to such lender information pertinent to the exemption. Based upon such
expectation and the continued exemption of the interest from federal income
taxation, rent shall be paid at the rates set forth hereinabove; provided,
however, that if as at any time (including after repayment of all principal) the
interest is no longer exempt from federal income taxation as a result of any
action or failure to act by Tenant, then the minimum annual rent payable
hereunder shall be increased, retroactively, if necessary, from the date such
interest shall have ceased being exempt and for the remainder of the term
hereof, by the amount by which such minimum annual rent is exceeded by the
amount which bears the same ratio to such minimum annual rent as the constant
monthly payment to Landlord's lender after the interest is no longer exempt
bears to the constant monthly payment to any lender while the interest is
exempt.
6. IMPOSITIONS. As used in this lease the term "Impositions" refers to all
levies, taxes, assessment and all charges, imposes or burdens of whatsoever kind
and nature, ordinary or extraordinary, which are applicable to the term of this
lease, and which are assessed or imposed by any federal, state or municipal
government or public authority, or under any law, ordinance or regulation
thereof, or pursuant to any recorded covenants or agreements upon or with
respect to the Property or any part thereof, any improvements thereto or this
lease. Tenant shall pay to Landlord with the monthly payment of minimum annual
rent any imposition imposed directly upon this lease or the rent payable
hereunder or amounts payable by any subtenants. 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
currently existing imposition
or an increase in any currently existing imposition. If under these requirements
of any state or local law with respect to such new method of taxation, Tenant is
prohibited from paying such new imposition, Landlord may, at its election,
terminate this lease by giving written notice thereof to Tenant.
7. INSURANCE. (a) SEE ATTACHED ARTICLE 37
(b) LIABILITY. Tenant, at Tenant's sole cost and expense, shall maintain
and keep if effect throughout the term insurance against liability for bodily
injury (including death) or property damage in or about the Premises or the
Property under a policy of comprehensive general public liability insurance,
with such limits as to each as may be reasonably required by Landlord from time
to time, but not less than $500,000 for each person and $1,000,000 for each
occurrence of bodily injury (including death) and $500,000 for property damage.
The policies of comprehensive general public liability insurance shall name
Landlord and Tenant as the insured parties. Each such policy shall provide that
it shall not be cancelable without at least thirty (30) days prior written
notice to Landlord and to any mortgagee named in an endorsement thereto and
shall be issued by an insurer and in a form satisfactory to Landlord. At least
ten (10) days prior to the Commencement Date, a certificate of insurance shall
be delivered to Landlord. If Tenant shall fail, refuse or neglect to obtain or
to Maintain any insurance that it is required to provide or to furnish Landlord
with satisfactory evidence of coverage on any such policy, Landlord shall have
the right to purchase such insurance. All such payments made by Landlord shall
be recoverable by Landlord from Tenant, together with interest thereto
additional rent promptly upon being billed therefor.
(c) WAIVER OF SUBROGATION. Each of the parties hereto hereby releases the
other, to the extent of the releasing party's insurance coverage, from any and
all liability for any loss or damage covered by such insurance which may be
inflicted upon the property of such party even if such loss or damage shall be
brought about by the fault or negligence of the other party, its agents or
employees; provided, however, that this release shall be effective only with
respect to loss or damage occurring during rush time as the appropriate policy
of insurance shall contain a clause to the effect that this release shall not
affect said policy or the right of the insured to recover thereunder. If any
policy does not permit such a waiver, and if the party to benefit therefrom
requests that such a waiver be obtained, the other party agrees to obtain an
endorsement to its insurance policies permitting such waiver of subrogation if
it is available. If an additional premium is charged for such waiver, the party
benefiting therefrom agrees to pay the amount of such additional premium
promptly upon being billed therefor.
(d) INCREASE OF PREMIUMS. Tenant will not do anything or fail to do
anything which will cause the cost of Landlord's insurance to increase or which
will prevent Landlord from procuring policies (including but not limited to
public liability) from companies and in a form satisfactory to Landlord. If any
breach of this Paragraph (d) by Tenant shall cause the rate of fire or other
insurance to be increased, Tenant shall pay the amount of such increase as
additional rent promptly upon being billed therefor.
8. REPAIRS AND MAINTENANCE. (a) See Attached Article 38
(b) Tenant, as its sole cost and expense and throughout the term of this
lease, shall keep and maintain the Premises in a neat and orderly condition.
(c) Landlord, throughout the term of this lease, shall make all necessary
repairs to the Premises and other improvements located on the Property;
provided, however, that Landlord shall have no responsibility to make any
repairs unless and until Landlord receives written notice of the need for such
repair. Landlord shall keep and maintain a common area of the Property and any
sidewalks, parking areas, curbs and access ways adjoining the Property in a
clean and orderly condition, free of accumulation of dirt, rubbish, snow and
ice, and shall keep and maintain all landscaped areas in a neat and orderly
condition.
(d) Repairs and replacements to the Premises and the Property arising out
of or caused by Tenant's use, manner of use or occupancy of the Premises or by
Tenant's installation in or upon the Premises or by any act or omission of
Tenant or any employee, agent, contractor, or invitee of Tenant shall be made at
the sole cost and expense of Tenant. Tenant shall not bear the expense of any
repairs or replacements to the Premises or the Property arising out of or caused
by any other Tenant's use, manner of use or occupancy of the Property or by any
other Tenant's installation in or upon the Property, or by any act or omission
of any other Tenant or any other Tenant's employees, agents, contractors or
invitees.
9. UTILITIES. Tenant shall be solely responsible for and shall pay promptly to
the appropriate service provider all rates, costs, charges for water service,
sewer service, gas, electricity, light, heat, [unintelligible] power, telephone
and other community services and any and all other utilities or services
rendered or supplied upon or in connection with the Premises.
10. JANITORIAL SERVICES. Tenant to be responsible for janitorial services and
trash removal, with a vendor to be approved by Landlord, in advance.
11. GOVERNMENTAL REGULATIONS.
(a) Tenant shall not violate any laws, ordinances, notices, orders, rules,
regulations or requirements of any federal, state or municipal government or any
department , commission, board or officer thereof, or of the National Board of
Fire Underwriters or any other body exercising similar functions, relating to
the Premises or to the use or manner of use of the Property.
(b) Tenant shall pay a pro rata share of capital improvements which
Landlord shall install or construct in compliance with governmental requirements
or as energy saving devices. Such pro rata share shall be determined as if such
capital improvement had a useful life of ten (10) years and that Tenant shall
only have to pay for the portion of the useful life of the capital improvement
which falls within the term or any extended term of this lease. Tenant shall
thus make payments in equal annual installments for such capital improvements
each annual payment to be equal to Tenant's share of one-tenth (1/10) of the
cost of the capital improvement, including any interest or finance charges
thereon until the term or any renewal thereof shall
expire or until the cost of the improvement has been fully paid for, whichever
shall first occur; such payments shall be computed by Landlord at the time of
installation of the capital improvement in the same manner as Landlord makes
computations of tenant's share of the annual operating costs pursuant to
Paragraph 5 (d)(ii) hereof. (SEE ATTACHED ARTICLE 35)
12. SIGNS. Landlord will place Tenant's name and suite number on the Building
standard sign. 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 or the Property.
13. ALTERATIONS, ADDITIONS AND FIXTURES.
(a) Subject to the provisions of Article 14 hereof, Tenant shall have the
right to install in the Premises any trade fixtures from time to time during the
term of this lease; provided, however, that no such installation or removal
thereof shall affect the structural portion of the Premises and that Tenant
shall repair and restore any damage or injury to the Premises or the Property
caused thereby.
(b) Tenant shall not make or permit to be made any alterations,
improvements or additions to the Premises or Property without on each occasion
first presenting to Landlord plans and specifications therefor and obtaining
Landlord's prior written consent thereto. Landlord shall respond in a timely
manner. If Landlord shall consent to any such proposed alterations,
improvements or additions, then Tenant shall make the proposed alteration,
improvements and additions at Tenant's sole cost and expense provided that (i)
Tenant supplies any necessary permits and certificates of insurance therefor;
(ii) such alterations and improvements do not impair the structural strength of
the Building or any other improvements or reduce the value of the Property;
(iii) Tenant shall take or cause to be taken all steps that are required by
Article 14 hereof and that are required or permitted by law in order to avoid
the imposition of any mechanic's, laborer's or materialman's lien upon the
Premises, Building or Lot; (iv) Tenant shall use a contractor approved by
Landlord; and (v) the occupants of the Building and of any adjoining real estate
owned by Landlord are not annoyed or disturbed by reason thereof. Any and all
alterations, improvements and additions to the Property which are constructed,
installed or otherwise made by Tenant shall be the property of Tenant until the
expiration or sooner termination of this lease; at that time all such
alterations and additions shall remain on the Property and become the property
of Landlord without payment therefor by Landlord; unless, upon the termination
of this lease, Landlord shall give written notice to Tenant to remove the same;
in which event Tenant will remove such alterations, improvements and additions,
and repair and restore any damage to the Property caused by the installation or
removal thereof; however, upon Tenant's request, Landlord will exercise this
option at the time approval is given for the alterations, improvements, and
additions.
14. MECHANIC'S LIENS. Tenant shall promptly pay contractors and materialmen
who supply labor, work or materials to Tenant at the Premises or the Property so
as to minimize the utility of a lien attaching to the Premises or the Property.
Tenant shall take all steps permitted by
lease in order to avoid the imposition to any mechanic's, laborer's or
materialman's lien upon the Premises, the Property or the Lot. Should any such
lien or notice of lien be filed for work performed for Tenant other than by
Landlord, Tenant shall bond against or discharge the same within fifteen (15)
days after the lien or claim is filed or formal notice of said lien or claim has
been issued regardless of the validity of such lien or claim. Nothing in this
lease is intended to authorize Tenant to do or cause any work or labor to be
done or any materials to be supplied for the account of Landlord, all of the
same to be solely for Tenant's account and as Tenant's risk and expense.
Throughout this lease the term "mechanic's lien" is used to include any lien,
encumbrance or charge levied or imposed upon the Premises or the Property or any
interest therein or income therefrom on account of any mechanic's, laborer's or
materialman's lien or arising out of any debt or liability to or any claim or
demand of any contractor, mechanic, supplier, materialman or laborer and shall
include without limitation any mechanic's notice of intention given to Landlord
or Tenant, any stop order given to Landlord or Tenant, any notice of refusal to
pay naming Landlord or Tenant and any injunctive or equitable action brought by
any person entitled to any mechanic's lien.
15. LANDLORD'S RIGHT OF ENTRY.
(a) Tenant shall permit Landlord and the authorized representatives of
Landlord and of any mortgagee or any prospective mortgagee to enter the Premises
at all reasonable times for the purpose of (i) inspecting them or (ii) making
any necessary repairs thereto or to the Property and performing any work
therein. During the progress of any work on the Premises or the Property,
Landlord will attempt not to inconvenience Tenant, but shall not be liable for
inconvenience, annoyance, disturbance, loss of business 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, and the obligations of Tenant under this lease shall not be thereby
affected in any manner whatsoever.
(b) Landlord shall have the right at all reasonable times but only after 24
hours prior notice and accompanied by an employee designated by Tenant, except
in the event of an emergency, to enter and to exhibit the Premises for the
purpose of sale of mortgage, and, during the last nine (9) months of the terms
of this lease, to enter and to exhibit the Premises to any prospective tenant.
16. DAMAGE BY FIRE OR OTHER CASUALTY.
(a) If the Premises or Building shall be damaged or destroyed by fire or
other casualty, Tenant shall promptly notify Landlord, and Landlord, subject to
the mortgagee's consent and to the conditions set forth in this Article 14,
shall repair, rebuild or replace such damage and restore the Premises to
substantially the same condition in which they were immediately prior to such
damage or destruction; provided, however, that Landlord shall only be obligated
to restore such damage which is covered by the fire and other extended coverage
insurance policies.
(b) The work shall be commenced promptly and completed with due diligence,
taking into account the time required by Landlord to effect a settlement with,
and procure insurance proceeds from, the insurer, and for delays beyond
Landlord's reasonable control.
(c) The net amount of any insurance proceeds (excluding proceeds received
pursuant to a rental coverage endorsement) recovered by reason of the damage or
destruction of the Building in excess of the cost of adjusting the insurance
claim and collecting the insurance proceeds (such excess amount being
hereinafter called the "net insurance proceeds") shall be applied towards the
reasonable cost of restoration. If in Landlord's reasonable opinion the net
insurance proceeds will not be adequate to complete such restoration, Landlord
shall have the right to terminate this lease and all the unaccrued obligations
of the parties hereto by sending a written notice of such termination to Tenant,
the notice to specify a termination date no less than ten (10) days after its
transmission; provided, however, that except during the last two (2) years of
the term, Tenant may require Landlord to withdraw the notice of termination by
agreeing to pay the cost of restoration in excess of the net insurance proceeds
and by giving Landlord adequate security for such payment prior to the
termination date specified in Landlord's notice of termination. If the net
insurance proceeds are more than adequate, the amount by which the net insurance
proceeds exceed the cost of restoration will be retained by Landlord or applied
to repayment of any mortgage secured by the Premises.
(d) Landlord's obligation or election to restore the Premises under this
Article shall not include the repair, restoration or replacement of the
fixtures, improvements, alterations, furniture or any other property owned,
installed, made by, or in the possession of Tenant.
(e) Landlord shall maintain insurance against loss or damage to the
Building by fire and such other casualties as may be included within fire and
extended coverage insurance or all-risk insurance, together with a rental
coverage endorsement or other comparable form of coverage. Tenant will receive
an abatement of its minimum annual rent to the extent of payments received by
Landlord from the carrier providing the rental coverage endorsement.
17. NON-ABATEMENT OF RENT. Except as otherwise expressly provided as to damage
by fire or by any other casualty in Paragraph 16 (c) and as to condemnation in
Paragraphs 19 (a) and (b) there shall be no abatement or reduction of the
minimum rent, additional rent or other rent payable hereunder for any cause
whatsoever, and this lease shall not terminate, and Tenant shall not be entitled
to surrender the Premises.
18. INDEMNIFICATION OF LANDLORD. Tenant will indemnify Landlord and save
Landlord harmless from and against any and all claims, actions, damages,
liability and expense (including without limitation fees of attorney,
investigators and experts) in connection with loss of life, personal injury or
damage to property caused to any person in or about the Premises or arising out
of the occupancy or use by Tenant of the Premises or any part thereof or
occasioned wholly or in part by any act or omission of Tenant, its agents,
contractors, employees, licensees or invitees; unless such loss, injury or
damage was caused by the negligence of Landlord, its agents, contractors,
employees, licensees or invitees. Without limiting the foregoing, Tenant will
forever release and hold Landlord harmless from all claims arising out of damage
to Tenant's property
unless such damage occurs as a result of Landlord's negligent failure to
maintain the Premises in accordance with this lease agreement or to make repairs
after having received written notice of the need for such repair. 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.
19. CONDEMNATION.
(a) TERMINATION. (i) If all of the Premises are covered by a condemnation;
or (ii) if any part of the Premises is covered by a condemnation and the
remainder thereof is insufficient for the reasonable operation therein of
Tenant's business; or, (iii) subject to the provisions of Paragraph (b)(i)
hereof, if any of the Property is covered by a condemnation and, in Landlord's
sole opinion, it would be impractical or the condemnation proceeds are
insufficient to restore the remainder of the Property; then, in any such event,
this lease shall terminate and all obligations hereunder shall cease as of the
date upon which possession is taken by the condemnor and the rent herein
reserved shall be apportioned and paid in full by Tenant to Landlord to that
date and all rent prepaid for periods beyond that date shall forthwith be repaid
by Landlord to Tenant.
(b) PARTIAL CONDEMNATION.
(i) If there is a partial condemnation and Landlord decides to
terminate pursuant to Paragraph (a) hereof, except during the last two (2) years
of the term, Tenant may require Landlord to withdraw its notice of termination
by: (A) giving Landlord written notice thereof within ten (10) days from
transmission of Landlord's notice to Tenant of Landlord's intention to
terminate. (B) agreeing to pay the cost of restoration in excess of the
condemnation proceeds reduced by those sums expended by Landlord in collecting
the condemnation proceeds, and (C) giving Landlord adequate security for such
payment within such ten (10) day period.
(ii) If there is a partial condemnation and this lease has not been
terminated pursuant to Paragraph (a) hereof, Landlord shall restore the Building
and the improvements which are part of the Premises to a condition and size as
nearly comparable as reasonably possible to the condition and size thereof
immediately prior to the date upon which possession shall have been taken by the
condemnor. If the condemnation proceeds are more than adequate to cover the
cost of restoration and the Landlord's expenses in collecting the condemnation
proceeds, any excess proceeds shall be retained by Landlord or applied to
repayment of any mortgage secured by the Premises.
(iii) If there is a partial condemnation and this lease has not been
terminated by the date upon which the condemnation shall have obtained
possession, the obligations of Landlord and Tenant under this lease shall be
unaffected by such condemnation except that there shall be an equitable
abasement for the balance of the term of the minimum annual rent according to
the value of the Premises before and after the date upon which the condemnor
shall have taken possession. In the event that the parties are unable to agree
upon the amount of such abatement, either party may submit the issue to
arbitration.
(c) AWARD. In the event of a condemnation affecting Tenant, Tenant shall
have the right to make a claim against the condemnor for removal expenses,
business dislocation damages and moving expenses; provided and to the extent,
however, that such claims or payments do not reduce the sums otherwise payable
by the condemnor to Landlord. Except as aforesaid, Tenant hereby waives all
claims against Landlord and against the condemnor, and Tenant hereby assigns to
Landlord all claims against the condemnor including, without limitation, all
claims for leasehold damages and diminution in value of Tenant's leasehold
interest.
(d) TEMPORARY TAKING. If the condemnor should take only the right to
possession for a fixed period of time or for the duration of an emergency or
other temporary condition, then, notwithstanding anything hereinabove provided,
this lease shall continue in full force and effect without any abatement of
rent, but the amounts payable by the condemnor with respect to any period of
time prior to the expiration or sooner termination of this lease shall be paid
by the condemnor to Landlord and the condemnor shall be considered a subtenant
of Tenant. Landlord shall apply the amount received from the condemnor
applicable to the rent due hereunder net of costs to Landlord for the collection
thereof, or as much thereof as may be necessary for the purpose, toward the
amount due from Tenant as rent for that period; and, Tenant shall pay to
Landlord any deficiency between the amount thus paid by the condemnor and the
amount of the rent, or Landlord shall pay to Tenant any excess of the amount of
the award over the amount of the rent.
20. QUIET ENJOYMENT. Tenant, upon paying the minimum rent, additional rent and
other charges herein provided for, and observing and keeping all comments,
agreements and conditions of this lease on its part to be kept, shall quietly
have and enjoy the Premises during the term of this lease without hindrance or
molestation by anyone claiming by or through Landlord, subject, however, to the
exceptions, reservations and conditions of this lease. The Landlord hereby
reserves the right to prescribe, at its sole discretion, reasonable rules and
regulations (herein called the "Rules and Regulations") having uniform
applicability to all tenants of the Building and governing the use and enjoyment
of the Premises and the remainder of the Property; provided that the Rules and
Regulations shall not materially interfere with the Tenant's use and enjoyment
of the Premises in accordance with the provisions of this lease or general
office purposes. The Tenant shall adhere to the Rules and Regulations and shall
cause its agents, employees, invitees, visitors and guests to do so. A copy of
the Rules and Regulations in effect on the date hereof is attached hereto as
Exhibit "E".
21. ASSIGNMENT AND SUBLETTING.
(a) RESTRICTED ASSIGNMENT. Tenant shall not assign, mortgage, pledge or
encumber this lease, or sublet the whole or any part of the Premises, without
the prior written consent of Landlord which consent shall not be unreasonably
withheld. This prohibition against assigning or subletting shall be construed
to include a prohibition against any assignment or subletting by operation of
law, and/or a transfer by any person or persons controlling Tenant on the date
of the lease of such control to a person or persons not controlling Tenant on
the date of the lease. In the event of any assignment of this lease made with
or without Landlord's consent,
Tenant nevertheless shall remain liable for the performance of all of the terms,
conditions and covenants of this lease and shall require any assignee to execute
and deliver to Landlord an assumption of liability agreement in form
satisfactory to Landlord, including an assumption by the assignee of all the
obligation of Tenant and assignee's ratification of and agreement to be bound by
all the provisions of this lease. Landlord shall be entitled to, and Tenant
shall promptly remit to Landlord, any profit which may inure to the benefit of
Tenant as a result of any subletting of the Premises or assignment of this
lease, whether or not consented to be Landlord.
(b) PERCENTAGE AGREEMENTS. It is agreed that Tenant shall not enter into
any assignment, sublease, license, concession or other agreement for use,
occupancy or utilization of the whole or any part of the Premises with or
without Landlord's consent, which provides for rental or other payment for such
use, occupancy or utilization based, in whole or in part on the net income or
profits derived by any person or entity from the space leased, used, occupied or
utilized (other than an amount based on a fixed percentage or percentages of
receipts or sales), and any such purported assignment, sublease, license,
concession or other agreement shall be absolutely void and ineffective as a
conveyance of any right or interest in the possession, use, occupancy or
utilization of any part of the Premises.
22. SUBORDINATION. This lease and Tenant's rights hereunder shall be subject
and subordinate at all times in lien and priority to any first mortgage or other
primary encumbrances now or hereafter placed upon or affecting the Premises, and
to any second mortgage or encumbrance with the consent of the first mortgagee,
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
first mortgage or to the lien of any other mortgage if requested to do so by
Landlord with the consent of the first mortgagee, and any further instrument or
instruments of attornment that may be desired by any such mortgagee or Landlord.
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, and in that event
such mortgagee shall have the same rights with respect to this lease as though
this lease had been executed prior to the execution and delivery of the mortgage
and had been assigned to such mortgagee.
23. MEMORANDUM OF LEASE: TENANT'S CERTIFICATE.
(a) Tenant, at any time and from time to time and within 15 days after
Landlord's written request, shall execute, acknowledge and deliver to Landlord a
short form or memorandum of this lease for recording purposes.
(b) Tenant, at any time and from time to time and within 15 days after
Landlord's written request, so long as there are no material and substantial
defects in the Premises which Landlord is obligated to remedy and which Landlord
is not proceeding to remedy and so long as Landlord is not otherwise in default
of this lease, shall execute, acknowledge and deliver to Landlord a written
instrument in recordable form certifying that this lease is unmodified and in
full force and effect (or, if there have been modifications, that it is in full
force and effect as modified and stating the modifications); stating that the
improvements required by Article 2 hereof have been completed; certifying that
Tenant has accepted possession of the Premises; stating the date on which the
term of the lease commenced and the dates to which minimum rent, additional rent
and other charges have been paid in advance, if any; stating that to the best
knowledge of the signer of such instrument Landlord is set in default of this
lease; stating any other fact or certifying any other condition reasonably
requested by Landlord or required by any mortgagee or prospective mortgagee or
purchaser of the Premises or any interest herein; and stating that it is
understood that such instrument may be relied upon by any mortgagee or
prospective mortgagee or purchaser of the Premises or any interest therein or by
any assignee of Landlord's interest in this lease or by any assignee of any
mortgagee. The foregoing instrument shall be addressed to Landlord and to any
mortgagee, prospective mortgagee, purchaser or other party specified by
Landlord.
25. SURRENDER.
(a) Subject to the term of Paragraphs 13(b) and 16 (c) hereof at the
expiration or earlier termination of the term hereof, Tenant shall promptly
yield up, clean and neat, and in the same condition, order and repair in which
they are required to be kept throughout the term hereof, the Premises and all
improvements, alterations and additions thereto, and all fixtures and equipment
servicing the Building, ordinary wear and tear excepted.
(b) 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 minimum annual rent during such continued occupancy shall be
double the amount set forth in Paragraphs 5 (a) and (b) hereof. Anything to
the contrary notwithstanding, any holding over by Tenant without Landlord's
prior written consent shall constitute a default hereunder and shall be subject
to all the remedies set forth in Article 26 hereof.
26. DEFAULT-REMEDIES.
(a) DEFAULT: It shall be an event of default:
(i) If Tenant does not pay in full when due and without demand any and
all installments of minimum rent or additional rent or any other charges or
payments whether or not herein included as rent; or
(ii) If Tenant violates or fails to perform or otherwise breaches any
agreement, term, covenant or condition herein contained; or
(iii) If Tenant abandons the Premises or removes or attempts to remove
Tenant's goods or property therefrom other than in the ordinary course of
business without
having first paid to Landlord in full all minimum rent,
additional rent and other charges that may have become due as well as all which
will become due thereafter; or
(iv) 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 a default until
such proceeding, decree, judgment or order has continued unstayed for more than
sixty (60) consecutive days.
(v) If any of the events enumerated in Paragraph (a) (iv) of this
Article shall happen to any guarantor of this lease:
(b) REMEDIES. Then, and in any such event, Landlord shall have the
following rights:
(i) To charge a late payment penalty of five (5%) percent of any
amount owed to Landlord pursuant to this lease which is not paid within five (5)
days of the date which is set forth in the lease if a date is specified, or, if
a date is not specified, within thirty (30) days of receipt by Tenant of a xxxx
therefor from Landlord. If Landlord incurs a penalty in connection with any
payment which Tenant has failed to make within the times required in this lease,
Tenant shall pay Landlord, in addition to such sums, the full amount of such
penalty incurred by Landlord.
(ii) To accelerate the whole or any part of the rent for the entire
unexpired balance of the term of this lease, as well as all other charges,
payments, costs and expenses herein agreed to be paid by Tenant, and any rent or
other charges, payments, costs and expenses if so accelerated shall, in addition
to any and all installments of rent already due and payable and in arrears, and
any other charge or payment herein reserved, included or agreed to be treated or
collected as rent and any other charge, expense or cost herein agreed to be paid
by Tenant which may be due and payable and in arrears, be deemed due and payable
as if, by the terms and provisions of this lease, such accelerated rent and
other charges, payments, costs and expenses were on that date payable in
advance.
(iii) To enter the Premises and without further demand or notice
proceed to distress and sale of the goods, chattels and personal property there
found, to levy the rent and other charges herein payable as rent, and Tenant
shall pay all costs and officers' commissions which are permitted by law,
including watchmen's wages and sums chargeable to Landlord, and further
including commission[s] to the constable or other person making the levy, and in
such case all costs, officers' commissions and other charges shall immediately
attach and become part of the claim of Landlord for rent, and any tender of rent
without said costs, commissions and
charges made after the issuance of a warrant of distress, shall not be
sufficient to satisfy the claim of Landlord.
(iv) To re-enter the Premises, together with all additions,
alterations and improvements, and, at the option of Landlord, remove all persons
and all or any property therefrom, either by summary dispossess proceedings or
by any suitable action or proceeding at law or by force or otherwise, without
being liable for prosecution or damages therefor, and repossess and enjoy the
Premises. Upon recovering possession of the Premises by reason of or based upon
or arising out of a default on the part of Tenant, Landlord may, at Landlord's
option, either terminate this lease or make such 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 in Landlord's sole
discretion may seem advisable and to such person or persons as may in Landlord's
discretion seem best; upon each such reletting all rents received by Landlord
from such reletting shall be applied: first, to the payment of any costs and
expenses of such reletting, including brokerage fees and attorney's fees and all
costs of such alterations and repairs; second, to the payment of any
indebtedness other than rent due hereunder from Tenant to Landlord; third, to
the payment of rent due and unpaid hereunder, and the residue, if any, shall be
held by Landlord and applied in payment of future rent as it may become due and
payable hereunder. If such rentals received from such reletting during any month
shall be less than that to be paid during that month by Tenant, Tenant shall pay
any such deficiency to Landlord. Such deficiency shall be calculated and paid
monthly. No such re-entry or taking possession of the Premises or the making of
alterations or improvements thereto or the reletting thereof shall be construed
as an election on the part of Landlord to terminate this lease unless written
notice of such intention by given to Tenant. Tenant, for Tenant and Tenant's
successors and assigns, hereby irrevocably constitutes and appoints Landlord
Tenant's and their agent to collect the rents due and to become due under all
subleases of the Premises or any parts thereof without in any way affecting
Tenant's obligation to pay any unpaid balance of rent due or to become due
hereunder. notwithstanding any such reletting without termination, Landlord may
at any time thereafter elect to terminate this lease for such previous breach.
Landlord shall exercise goof faith efforts to relet the Premise and collect the
rent under such reletting.
(v) To terminate this lease and the term hereby created without any
right on the part of Tenant to waive the forfeiture by payment of any sum due or
by other performance of any condition, term or covenant broken. Whereupon
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 the rent reserved for the balance of the term of this lease, as well
as all other charges, payments, costs and expenses herein agreed to be paid by
Tenant, all discovered at the rate of six percent (6%) per annum to their then
present worth, less the fair rental value of the Premises for the remainder of
said term, also discounted at the rate of six percent (6%) per annum to its then
present worth, all of which amount shall be immediately due and payable from
Tenant to Landlord.
(vi) Whenever not prohibited by the law of the state in which the
Property is located, when this lease and the term or any extension or renewal
thereof shall have been terminated on account of any default by Tenant, or when
the term hereby created or any extension or renewal thereof shall have expired,
it shall be lawful for any attorney of any court of record to appear as attorney
for Tenant as well as for all persons claiming by, through or under Tenant, and
to sign after 3 days written notice from Landlord an agreement for entering in
any competent court an amicable action in ejectment and judgment against Tenant
and all persons claiming by, through or under Tenant and therein confess
judgment for the recovery by Landlord of possession of the Premises, for which
this lease shall be his sufficient warrant; thereupon, if Landlord so desires,
an appropriate writ of possession may issue forthwith, without any prior writ or
proceeding whatsoever, and provided that if for any reason after such action
shall have been commenced it shall be determined and possession of the Premises
remain in or be restored to Tenant, Landlord shall have the right for the same
default and upon any subsequent default or defaults, or upon the termination of
this lease or Tenant's right of possession as hereinbefore set forth, to bring
on or more further amicable action or actions as hereinbefore set forth to
recover possession of the Premises and confess judgment for the recovery of
possession of the Premises as hereinbefore provided.
(vii) Whenever not provided by the law of the state in which the
Property is located, if Tenant shall default in the payment of the rent herein
reserved or in the payment of any other sums due hereunder by Tenant, Tenant
hereby authorizes and empowers any prothonorary or attorney of any court of
record to appear for Tenant in any and all actions which may be brought for said
rent and said other sums; and to sign for Tenant after 3 days written notice
from Landlord an agreement for entering in any competent court an amicable
action or actions for the recovery of said rental and other sums; and in said
suits or in said amicable action or actions to confess judgment against Tenant
for all or any part of said rental and said other sums, including, but not
limited to the amounts due from Tenant to Landlord under Paragraphs (b) (i),
(ii), (iii) or (iv) above; and for interest and costs, together with an
attorney's commission for collection of five percent (5%). Such authority shall
not be exhausted by one exercise thereof, but judgment may be confessed as
aforesaid from time to time as often as any of said rental and other sums shall
fall due or be in arrears, and such powers may be exercised as well after the
expiration of the initial term of this lease and during any extended or renewal
term of this lease and after the expiration of any extended or renewal term of
this lease.
(c) NON-WAIVER. No waiver by Landlord of any breach by Tenant of any of
Tenant's 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 Landlord to seek a remedy for any breach by Tenant be a waiver by
Landlord of any rights and remedies with respect to such or any subsequent
breach.
(d) GRACE PERIOD. Notwithstanding anything hereinabove stated, except in
the case of emergency set forth in Article 24 and except in the event of any
default enumerated in Paragraphs (a) (iii), (iv) and (v) of this Article,
neither party hereto will exercise any right or remedy provided for in this
lease or allowed by law because of any default of the other, except
those remedies contained in Paragraph (6) (i) of this Article unless such party
shall have first given ten (10) days written notice thereof to the defaulting
party, and the defaulting party shall have failed to cure the default within
such period; provided, however, that if the default consists of something other
than the failure to pay money which cannot reasonably be cured within ten (10)
days, neither party hereto will exercise any such right or remedy if the
defaulting party begins to cure the default within the ten (10) days and
continues actively and diligently in good faith to completely cure said default;
and further provide that Landlord shall not be required to give such ten (10)
days notice more than two (2) times during any twelve (12) month period.
(e) RIGHTS AND REMEDIES CUMULATIVE. No right or remedy herein conferred
upon or reserved to Landlord 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.
27. CONDITION OF TITLE AND OF PREMISES. Tenant represents that the Property,
the Lot and the Premises, the title thereto, the zoning thereof, the street or
streets, sidewalks, parking areas, curbs and access ways adjoining them, any
surface and sub-surface conditions thereof, and the present uses and non-uses
thereof, have been examined by Tenant, and Tenant accepts them in the condition
or state in which they now are, or any of them now, is, without relying on any
representation, covenant or warranty, express or implied, in fact or in law, by
Landlord and without recourse to Landlord, as to the title thereto, the
encumbrances thereon, the appurtenances thereto, the nature, condition or
usability thereof or the use or uses to which the Premises and the Property or
any part thereof may be put, except as to work to be performed by Landlord
pursuant to Article 2 hereof. Tenant's occupancy of the Premises shall
constitute acceptance of the work performed by Landlord pursuant to Article 2
hereof.
28. INTERPRETATION.
(a) CAPTIONS. 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 intent thereof.
(b) ENTIRE AGREEMENT. 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 of 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 except as
expressly set forth in the provisions of this lease. This lease shall not be
modified in any manner except by an instrument in writing executed by the
parties. Tenant agrees to make such changes to this lease as are required by any
mortgagee, provided such changes do not substantially affect Tenant's rights and
obligation hereunder. The masculine (or neuter) pronoun, singular number, shall
include the masculine, feminine and neuter genders and the singular and plural
number.
(c) EXHIBITS. 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.
(d) COVENANTS. The terms, covenants and obligations set forth herein all
constitute conditions and not covenants of this lease.
(e) ARBITRATION. Wherever arbitration is set forth herein as the
appropriate resolution of a dispute, issues shall be submitted for arbitration
to the American Arbitration Association in the city nearest to the Premises in
which offices of the American Arbitration Association are located. Landlord and
Tenant will comply with the rules then obtaining of the American Arbitration
Association and the determination of award rendered by the arbitrator(s) shall
be final, conclusive and binding upon the parties and not subject to appeal, and
judgment thereon may be entered in any court of competent jurisdiction.
(f) INTEREST. Whenever interest is required to be paid hereunder, such
interest shall be at the highest rate permitted under law but not in excess of
fifteen percent (15%).
29. DEFINITIONS.
(a) "Landlord". The word "Landlord" is used herein to include the Landlord
named above as well as its heirs, successors and assigns, each of whom shall
have the same rights, remedies, powers, authorities and privileges as he would
have had he originally signed this lease as Landlord. Any such person, whether
or not named herein, shall have no liability hereunder after he ceases to hold
title to the Premises except for obligations which may have theretofore accrued.
Neither Landlord nor any principal of Landlord nor any owner of the Building or
the Lot, 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 for the satisfaction of Tenant's remedies.
(b) "TENANT". 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 powers 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. Any
notice required or permitted by the terms of this lease may be given by or to
any one of the persons named above as Tenant, and shall have the same force and
effect s if given by or to all thereof.
(c) "MORTGAGE" AND "MORTGAGEE". 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, including without
limitation any ground rent or ground
lease if Landlord's interest is or becomes a leasehold estate. The word
"mortgagee" is used herein to include the holder of any mortgage, including any
ground lessor if Landlord's interest is or becomes a leasehold estate. 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.
(d) "PERSON". 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.
(e) "DATE OF THIS LEASE". The "date of this lease" shall be the date upon
which this lease has been fully executed by both parties.
30. NOTICES. All notices, demands, requests, consents, certificates and waivers
required or permitted hereunder from either party to the other shall be in
writing and sent by United States certified mail, return receipt requested,
postage prepaid. Notices to Tenant shall be addressed to 000 Xxxxxxxxxx Xxxxx,
---------------------
Xxxxxxx, XX 00000 or, after the Commencement Date, to the Premises. Notices to
-----------------
Landlord shall be addressed to 00 Xxxxxx Xxxxxx Xxxxxxx, Xxxxxxx, XX 00000 with
-------------------------------------------
a copy to any mortgagee or other party designated by Landlord. 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.
31. SECURITY DEPOSIT. At the time of signing this lease Tenant shall deposit
with Landlord as cash security for the faithful the sum of Twenty Thousand and
00/100 ($20,000.00) to be retained by Landlord performance and observance by
Tenant of Dollars the covenants, agreements and conditions of this lease.
Notwithstanding anything to the contrary contained in any law or statute now
existing or hereafter passed (i) Tenant shall not be entitled to any interest
whatever on the cash security, (ii) Landlord shall not be obligated to hold the
cash security in trust or in a separate account, and (iii) Landlord shall have
the right to commingle the cash security with its other funds. Landlord may use,
apply or retain the whole or any part of the cash security to the extent
required for the payment of any minimum rent, any additional rent or any other
sums payable hereunder as to which Tenant is in default or to the extend
required for the reimbursement to Landlord of any sum which Landlord may expend
or may be required to expend by reason of Tenant's default in respect to any of
the covenants, agreements or conditions of this lease. If Tenant shall fully and
faithfully comply with all of the covenants, agreements and conditions of this
lease, the cash security shall be returned to Tenant after the date fixed as the
expiration of the term of this lease and surrender of the Premises to Landlord.
If the Premises are sold to a bona fide purchaser, Landlord shall have the right
to transfer the aforesaid cash security to such purchaser, by which transfer
Landlord shall be released from all liability for the return thereof, and Tenant
shall look solely to the new landlord for the return thereof.
32. ADDITIONAL ARTICLES. The following Additional Articles 33 through 39
attached hereto are hereby made a part hereof.
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:
Liberty Property Limited Partnership
By: Liberty Property Trust, Sole General Partner
Date signed:
5/23/95 /s/ Xxxxx X. Xxxxxxxxxx
_____________________________ By: ________________________________
Xxxxx X. Xxxxxxxxxx, Senior Vice President
Tenant:
Premier Solutions, Ltd.
Date signed:
5/2/95
_____________________________ By: _________________________________
Attest: _______________________________
(Corporate Seal)
CORPORATE RESOLUTION AND AUTHORIZATION OF AGENCY
It is hereby certified that a meeting of a quorum of the directors of the
corporation which is the Tenant herein was held _____________________________ ,
19___ and that it was resolved to enter into this lease and further that the
officers of the corporation and ___________________________________ as agent of
the corporation, have been authorized, empowered and directed in the corporate
name and with the corporate seal to execute and deliver any or all documents and
to pay all fees and charges necessary to carry the entry into and compliance
with this lease.
___________________________________
Secretary
ATTACHED TO AND PART OF THE AGREEMENT OF LEASE
BETWEEN
LIBERTY PROPERTY LIMITED PARTNERSHIP
AND
PREMIER SOLUTIONS, LTD.
ARTICLE 33. MINIMUM ANNUAL RENT
-------------------
It is understood that Tenant shall pay Minimum Annual Rent in accordance
with the provisions of Paragraph 5(a) of this lease pursuant to the following
schedule:
MINIMUM EQUAL
ANNUAL MONTHLY
RENT INSTALLMENT
---- -----------
July 1, 1995 - August 31, 1995 $168,750.00 $14,062.50
September 1, 1995 - August 31, 1996 $200,000.00 $16,666.67
September 1, 1996 - August 31, 1997 $300,000.00 $25,000.00
September 1, 1997 - August 31, 1998 $337,500.00 $28,125.00
September 1, 1998 - August 31, 1999 $337,500.00 $28,125.00
September 1, 1999 - August 31, 2000 $337,500.00 $28,125.00
September 1, 2000 - March 31, 2001 $337,500.00 $28,125.00
ARTICLE 34. CONDITION OF PREMISES
---------------------
(a) Landlord has let the Premises in maid cleaned "as is" condition prior
to commencement of Tenants' improvement work and without any representation,
other than those specifically endorsed here on by Landlord, through its
officers, employees, servants, and/or agents. It is understood and agreed that
Landlord is under no duty to make repairs, alternations, or decorations at the
inception of this lease except as set forth on Exhibit "C".
(b) The Premises shall be completed by Tenant and its contractor, at
Tenant's sole expense, in accordance with the plans attached hereto as Exhibit
"B" (the "Plans") and the specifications attached hereto as Exhibit "C" (the
"Specifications"). Landlord hereby consents to the improvements Tenant intends
to make to the Premises in accordance with the Plans and Specifications. Tenant
is required to make all improvements compliant with ADA Regulations. Prior to
commencement of construction, Tenant shall deliver to Landlord a copy of a
Waiver of Lien as filed in the Office of the Prothonotary for Xxxxxxx County,
Pennsylvania and duly executed by Tenant and all of Tenant's contractors. All
construction shall be done in a good and workmanlike manner and shall comply at
the time of completion with all applicable and lawful laws, ordinances,
regulations and orders of the federal state, county or other governmental
authorities having jurisdiction thereof.
(c) Landlord shall contribute $125,000 towards tenants improvements,
$70,000 to be paid on the Commencement Date and $55,000 to be paid 9 months
thereafter.
ATTACHED TO AND PART OF THE AGREEMENT OF LEASE
BETWEEN
LIBERTY PROPERTY LIMITED PARTNERSHIP
AND
PREMIER SOLUTIONS, LTD.
ARTICLE 35. GOVERNMENTAL REGULATIONS (Article 11 continued)
-----------------------------------------------
Landlord represents that to the best of Landlord's knowledge the Premises
at the time of Tenant's occupancy shall comply with all applicable laws,
including ADA, building codes and zoning ordinances, regulations and orders of
the Federal, State, County or other government authorities having jurisdiction
at the time of Tenant's occupancy.
ARTICLE 36. BROKER
------
Tenant represents and warrants to Landlord that all of Tenant's dealings
with regard to the Premises have been solely with The Xxxxxxx Realty Services
Company and Liberty Property Limited Partnership, and that no other broker,
agent or party has shown the Premises to Tenant or negotiated with Tenant in
regard thereto.
ARTICLE 37. INSURANCE (Paragraph 7)
-----------------------
(a) Landlord shall maintain and keep in effect throughout the term of this
lease insurance against loss or damage to the Building or the Property by fire
and such other casualties as may be included within either fire and extended
coverage insurance or all-risk insurance, boiler insurance, plate glass
insurance, war risk insurance (when available) and such other insurance as
Landlord may desire or as may reasonably be required from time to time by any
mortgagee. Tenant shall pay to Landlord as additional rent (as included in
Subparagraph 5(c)) its Proportionate Share of premiums to be paid by Landlord
for insurance promptly upon being billed therefore.
ARTICLE 38. REPAIRS AND MAINTENANCE (Paragraph 8)
-------------------------------------
(a) Landlord shall maintain all HVAC systems appurtenant to the Premises
using a service firm (s) acceptable to Landlord which shall provide services and
maintenance in accordance with the manufacturer's recommendations and shall
provide a copy of the contract to Landlord. Tenant shall pay its proportionate
share of the cost of all maintenance of the HVAC systems appurtenant to the
Premises to be performed by Landlord pursuant to this Paragraph (a) as
additional rent, as included in Subparagraph 5(c), promptly upon being billed
therefore.
ARTICLE 39. EARLY TERMINATION
Tenant may terminate this Lease Agreement on March 31, 2000 ("Termination
Date") by giving landlord 12 months prior written notice and by paying 3 months
of the then minimum annual rent and base operating costs plus the unamortized
portion of tenant improvements (amortized at 10.5%) on or before the Termination
Date.
ASSIGNMENT AGREEMENT
--------------------
This Agreement is made the 26th day of August, 1997, by and between
Safeguard Scientifics, Inc., a Pennsylvania corporation having offices at 000
Xxxxx Xxxx Xxxxx, Xxxxx, Xxxxxxxxxxxx 00000 ("Tenant") and Analytical Graphics,
Inc., having offices a 000 Xxxxxxxx Xxxxxx, Xxxx xx Xxxxxxx, Xxxxxxxxxxxx 00000
("Assignee"). For purposes hereof, the "Effective Date" shall be the date
determined pursuant to Section 4.1 hereof.
WHEREAS Premier Solutions, Inc., Tenant's predecessor in interest, is the
tenant referred to under a certain Agreement of Lease dated May 23, 1995
("Lease) with Liberty Property Limited Partnership, a Pennsylvania limited
partnership, as landlord, ("Landlord") whereby said predecessor leased all that
certain known as 000 Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxx ("Premises"), which
Premises is more particularly described in the copy of said Lease which is
attached hereto as Exhibit "A" and
WHEREAS all right, title and interest as tenant under said Lease presently
vests in herein Tenant by way of an assumption of said Lease from said
predecessor including all of the rights and obligations of tenant thereunder and
WHEREAS the Tenant and Assignee understand that the assignment is and shall
be subject to landlord's consent which shall be in the form attached hereto.
NOW THEREFORE, in consideration of One Dollar and for other good and
valuable consideration and intending to be legally bound, the Tenant hereby
assigns and the Assignee hereby assumes said Lease on the following terms and
conditions:
1.0 Assignment of Lease
-------------------
1.1 Effective as of the Effective Date Tenant hereby assigns to
Assignee all of its rights, title and interest as tenant under
the Lease and with respect to the Premises, and hereby delegates
to Assignee all of its obligations under the Lease accruing from
and after the Effective Date; and Assignee hereby accepts such
assignment and delegation as of the Effective Date and assumes
all of the obligations on the part of the tenant to be performed
including all rental payments under the Lease accruing from and
after the Effective Date.
2.0 Satisfaction of Assignment
--------------------------
2.1 The requirements of Paragraph 21 of the Lease, "Assignment and
Subletting", providing for the proposed assignee to execute an
assumption of liability agreement shall be deemed satisfied by
the execution by the parties of the Consent to Assignment
attached hereto.
3.0 Security Deposit
----------------
3.1 At the time of execution of the Lease, Tenant paid to Landlord
the amount of Twenty Thousand ($20,000) Dollars as a security
deposit
to secure the tenant's performance under the Lease. Upon
execution hereof, Assignee shall deliver to Tenant its good check
in the aforesaid amount in exchange for which Tenant hereby
assigns to Assignee its rights in the existing security deposit
held by Landlord.
4.0 Acceptance of Premises by Assignee and Alterations
--------------------------------------------------
4.1 Assignee accepts the premises in its "as-is" condition, subject
to the Lease and subject further to the Tenant's removing its
personal property, if any, from the Premises and causing certain
alterations and improvements to be made in the Premises, all as
set forth in a separate letter agreement between Tenant and
Assignee, a copy of which is attached hereto as Exhibit "B". The
plans and specifications with respect to such alterations and
improvements shall be subject to the Landlord's approval as
provided in said Lease. Upon substantial completion of the
alterations and improvements the Tenant shall notify Assignee
thereof and the Effective Date shall be the fifth calender day
next following the date of said notice. Substantial completion
shall mean that the construction and other work for which Tenant
is responsible under Exhibit B hereof shall have been completed
to the extent that the Premises may be fully occupied by Assignee
for general office use, subject only to completion of minor
finishing work and adjustment of equipment (i.e. punchlist items
which do not interfere with Assignee's use of Premises and which
Tenant shall promptly correct) and Tenant has obtained a
certificate of occupancy for the Premises.
5.0 Tenant's Representation/Indemnities
-----------------------------------
5.1 Tenant hereby represents that:
(a) The copy of the Lease attached as Exhibit "A" hereto is
a true, complete and correct copy of the Lease, and
there has been no amendment, modification, or
supplement of any kind or nature varying the stated
terms and conditions thereof.
(b) The Lease is presently in full force and effect.
(c) The initial term of the Lease commenced on September 1,
1995, and expires March 31, 2001.
(d) All rentals and other charges due and payable under the
Lease by the Tenant thereunder have been paid through
the date hereof. In the event Landlord shall be
entitled to any Additional Rent under Paragraph 5 of
the Lease for the Operating Year in which the Effective
Date occurs, Assignee and Tenant agree that any such
amounts shall be equitably apportioned between them
after Assignee's receipt of Landlord's statement
therefor. The additional rent, i.e. for operating and
other costs, currently being paid by
Tenant pursuant to the Lease is, according to Tenant's
records, $9,604.17 per month (no warranty intended)
which sum shall be subject to further adjustment as in
the Lease provided
(e) No notice has been received by Tenant of a default
under the Lease and there are no defaults otherwise by
Tenant under the Lease which have not been cured. The
"unamortized portion" of tenant improvements mentioned
in Lease paragraph 39 as of March 31, 2000 will be
$28,061.69.
5.2 Mutual Indemnifications- Assignee/Tenant
(a) Assignee hereby agrees to indemnify and hold Tenant
harmless from and against any and all losses, damages,
liabilities, actions, claims, costs, and expenses
(including reasonable attorney's fees) arising out of
or resulting from (i) Assignee's use and occupancy of
the Premises, (ii) any act or omission by Assignee or
any of its employees, agents, servants, or visitors,
and (iii) any failure by Assignee to perform or observe
any of the covenants and obligations to be performed
and observed by tenant under the Lease after the
Effective Date. Assignee's obligations under this
paragraph shall survive the expiration or termination
of this Assignment.
(b) Tenant hereby agrees to indemnify, defend and hold
Assignee harmless from and against any and all losses,
damages, liabilities, actions, claims, costs and
expenses including reasonable attorney's fees) arising
out of or resulting from (i) Tenant's use and occupancy
of the Premises prior to the Effective Date and; (ii)
any breach of any covenant or representation by Tenant
hereunder. Tenant's obligations under this Paragraph
shall survive the expiration or termination of this
Agreement.
The above indemnities shall be limited to "out of pocket" damages
of the indemnified party and shall not include consequential
damages such as business interruption or loss of business.
6.0 Additional Lease Provisions
---------- ----------------
6.1 Satellite Dish
--------------
Assignee shall have the right to install, at its own cost,
on the roof of the building of which the Premises is a part,
two (2) satellite dishes which shall be approximately three
(3) feet and nine (9) feet in diameter, respectively, the
location and
installation of which shall be subject to the approval of
Landlord and Tenant's Association and shall (a) be done in a good
and workmanlike manner and in accordance with any pertinent laws
or regulations governing same and (b) shall not cause
interference with other electronic or similar equipment present
in the building. Assignee shall be responsible for and indemnify
and hold harmless Landlord and Tenant in accordance with
paragraph 18 of said Lease against any and all claims for
property damage and/or personal injury arising from the
installation, removal or presence of the satellite dishes on the
building and the installation and maintenance of the satellite
dishes shall be covered under Assignee's insurance to be
maintained under paragraph 7. Upon expiration or termination of
the Lease, the satellite dishes shall be removed and any damage
to the roof or the building caused thereby shall be promptly
repaired by Assignee.
6.2 Sign Installation
-----------------
Subject to Landlord's and Tenant's Association's consent, and the
consent of any governmental authority, if necessary, Assignee may
install, at its own cost and expense, a monument sign on the
existing monument located on the premises identifying the
Assignee.
6.3 Notices
-------
Any notice required to be given hereunder shall be in writing and
considered as properly given if hand-delivered (on the date of
delivery) and within five (5) days of mailing if sent by
certified or registered mail, return receipt requested, with
proper postage, to the respective address of the other party(ies)
as follows:
If to Tenant:
------------
Safeguard Scientifics, Inc.
000 Xxxxx Xxxx Xxxxx
Xxxxx,XX 00000
Attention: Xxxxxxx Xxxxx
Fax: (000) 000-0000
If to Assignee:
--------------
Analytical Graphics,Inc.
000 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
Fax: (000) 000-0000
or the actual date of transmission, if sent by telefax or telecopy. Any
party may change its notice address by notice to the other parties.
7.0 Security System and Utility Accounts
------------------------------------
7.1 Tenant shall leave in place for Assignee's use any existing
security system and, if system is "card access", Tenant will turn
over the access cards to Assignee for reprogramming.
7.2 Tenant and Assignee shall cooperate with each other in
transferring all utility accounts to the name of the Assignee as
of the Effective Date.
8.0 Miscellaneous
-------------
8.1 This Agreement together with the exhibits hereto constitutes the
entire agreement among the parties and supersedes any prior or
collateral agreement or understanding among the parties, and
shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. No amendment
of this agreement shall be effective unless made in writing and
signed by a duly authorized representative of each party.
8.2 Assignee represents and warrants to Tenant and to Landlord that
all of its dealings in connection with this assignment were
conducted solely through the broker, Tactix Realty, whose
commission shall be the obligation of Tenant pursuant to a
separate letter agreement between Tenant or its authorized
representative and said broker.
8.3 All captions herein are for convenience only and are not deemed
to have any substantial meaning.
8.4 This Agreement shall be governed by laws of the Commonwealth of
Pennsylvania.
8.5 This Agreement may be executed in one or more counterparts, all
of which, taken together, shall constitute one and the same
agreement, and shall be binding upon the parties when each party
shall have executed at least one counterpart hereof.
IN WITNESS WHEREOF, each of the parties hereto have caused this agreement
to be fully executed by an authorized representative as of the day and year
first written above.
Safeguard Scientifics, Inc.
(Tenant)
By: /s/ [SIGNATURE ILLEGIBLE]
---------------------------
Date: 08/26/97
-------------------------
Analytical Graphics, Inc.
(Assignee)
By: /s/ Will. X. Xxxxxxxxx
---------------------------
Date: 08/26/97
-------------------------
CONSENT TO ASSIGNMENT
---------------------
LIBERTY PROPERTY LIMITED PARTNERSHIP, a Pennsylvania limited partnership
("Landlord") as Landlord under that certain Lease dated May 23, 1995 by and
between PREMIER SOLUTIONS LTD, ("Lease") and assigned by a Consent to Assignment
dated April 15, 1997 to SAFEGUARD SCIENTIFICS, INC. a Pennsylvania corporation
("Tenant"), as Tenant, subject to and specifically conditioned upon the
following terms and conditions, hereby grants its consent to the assignment by
Tenant, as assignor, to ANALYTICAL GRAPHICS, INC. ("Assignee") of Tenant's
rights and obligations as Tenant under the Lease ("the "Assignment") in
consideration of Tenant's and Assignee's acknowledgment and acceptance of the
following terms and conditions:
1. NO RELEASE. This Consent shall in no way release Tenant or any person or
entity claiming by, through or under Tenant from any of its obligations under
the Lease, as the same may be amended from time to time, without respect to any
provision to the contrary in the Assignment.
2. TENANT'S CONTINUING LIABILITY. Tenant shall be liable to Landlord for any
default under the Lease, whether such default is caused by Tenant or Assignee or
anyone claiming by or through either Tenant or Assignee, but the foregoing shall
not be deemed to restrict or diminish any right which Landlord may have against
Assignee pursuant to the Lease, in law or in equity for violation of the Lease
or otherwise.
3. ASSUMPTION OF LIABILITY. From and after the "Effective Date" as that term
is defined in a certain Assignment Agreement between Tenant and Assignee,
Assignee assumes all obligations of Tenant under the Lease (including, without
limitation, all duties to cause and keep Landlord and others named or referred
to in the Lease fully insured and indemnified in accordance with the terms of
the Lease) and from and after the "Effective Date" as that term is defined in a
certain Assignment Agreement between Tenant and Assignee, ratifies and agrees to
be bound by all the provisions of the Lease. Further, Assignee confirms that it
has reviewed the Lease with any legal counsel of Assignee's choosing and
Assignee agrees that Landlord shall have the right of direct action against
Assignee pursuant to the same remedies as are available against Tenant.
4. LIMITED CONSENT. This Consent shall be deemed limited solely to the
Assignment, and Landlord reserves the right to consent or to withhold consent
and all other rights under the Lease with respect to any other matters
including, without limitation, any further or additional assignments, subleases
or transfers of the Lease or any interest therein or thereto.
5. DEFAULT. In the event that the Assignee shall be in default under the
Lease, Landlord shall forward to Tenant a copy of any default notice it may
serve on Assignee. Tenant, so long as it promptly and continually cures
such default, shall at its option, and with Landlord's written consent,
retain all rights and remedies against Assignee (and Landlord shall assign
same to Tenant) as are available to Landlord under the Lease, including the
recovery of damages and/or possession of the Premises. The foregoing shall
not be deemed to restrict or diminish any right which Landlord may have
against Assignee pursuant to the Lease.
6. SECURITY DEPOSIT. Landlord hereby acknowledges that Tenant has assigned to
Assignee all of Tenant's rights, if any; in any security deposit held by
Landlord pursuant to Article 31 of the Lease. Tenant shall have no further
rights to said security deposit. As of the date hereof Landlord
acknowledges that it is holding Twenty thousand ($20,000.00) Dollars as a
security deposit pursuant to Article 31 of the Lease.
7. LANDLORD'S ACKNOWLEDGES. Landlord acknowledges that (a) the copy of the
Lease attached as Exhibit "A" hereto is a true, complete and correct copy
of the Lease, and there has been no amendment, modification, or supplement
of any kind or nature varying the stated terms and conditions thereof and
(b) the Lease is presently in full force and effect and (c) the initial
term of the Lease commenced on September 1, 1995, and expires March 31,
2001 and (d) all rentals and other charges due and payable under the Lease
by the Tenant thereunder have been paid through the date hereof and (e) no
notice has been issued by Landlord of a default under the Lease and there
are no defaults otherwise by Tenant under the Lease which have not been
cured. Pursuant to Article 39 of the Lease, the unamortized portion of
tenant improvements as of March 31, 2000, will be $28,061.69. The
termination fee also includes three (3) months base rent and operating
expenses, both as of the time of termination.
8. PARTIES BOUND; PAYMENT OF EXPENSES. By executing this Consent, Tenant and
Assignee acknowledge and agree (a) to be bound by all terms and conditions
of Landlord's consent to the Assignment as set forth herein and (b) that
Landlord shall not be bound by this Consent unless Landlord receives a
fully executed original copy of this Consent, a certificate of Assignee's
insurance in compliance with Section 7(c) of the Lease and timely payment
for its expenses, which will be approximately One Thousand Five Hundred
($1,500.00) Dollars in connection with this Consent in accordance with
Section 18 of the Lease. Landlord shall give Assignee a copy of a receipt
for said expenses when they are paid in full.
9. DEFINED TERMS. All terms defined in the Lease shall have the meaning in
this Consent unless otherwise expressly set forth herein.
2
IN WITNESS WHEREOF and intending to be legally bound and to bind their
respective successors and assigns, Landlord, Tenant and Assignee have executed
this Consent to Assignment as of the 28 day of August, 1997.
Witness/Attest: LANDLORD:
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: Liberty Property Trust,
Sole General Partner
/s/ [SIGNATURE ILLEGIBLE] By: /s/ [SIGNATURE ILLEGIBLE]
--------------------------- --------------------------------
Name:
Title: Sen Vice Pres
TENANT:
SAFEGUARD SCIENTIFICS, INC.
By:/s/ [SIGNATURE ILLEGIBLE]
-------------------------- --------------------------------
Name: [SIGNATURE ILLEGIBLE]
Title: [ILLEGIBLE]
ASSIGNEE:
ANALYTICAL GRAPHICS, INC.
By:/s/ Xxxxxxx X. Xxxxxxxxx
-------------------------- --------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: CFO
3
