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EXHIBIT 10.15
OFFICE LEASE
LEASE made this 20th day October, 1997 by and between Churoad
Associates, L.P.(hereinafter called "LANDLORD"), and DATAMATIX a Pennsylvania
Corporation (hereinafter called "TENANT").
WITNESSETH, THAT:
1. DEMISED PREMISES. Landlord, for the term and subject to the
provisions and conditions hereof, leases to Tenant and Tenant accepts from
Landlord, the space consisting of 9,390 rentable square feet of office space on
the FIRST AND GROUND FLOORS floor known as Suite, AND 131 SQUARE FEET OF STORAGE
SPACE ON THE GROUND FLOOR (hereinafter referred to as the "DEMISED PREMISES") of
the building known as 000 XXXX XXXXXX XXXX located in KING OF PRUSSIA,
PENNSYLVANIA (hereinafter referred to as the "BUILDING"), and more particularly
described by the cross-hatched area on the floor plans annexed herein as Exhibit
"A", to be used by Tenant for the purpose of ADMINISTRATIVE AND SALES OFFICES
and for no other purpose. The size of the Demised Premises is based on a
building factor of 15%. Within six (6) months after Tenant's occupancy of the
Demised Premises, Landlord at Landlord's sole discretion, shall have an
architect measure the Building to determine the accurate size of the Demised
Premises and the actual building factor (Rentable vs. Usable). In the event the
size of the Demised Premises increases or decreases Landlord and Tenant will
execute an amendment to this Lease adjusting the size, Tenant's Fraction and
Rent Rider. Notwithstanding the foregoing the Tenant shall not be required to
recognize a building factor which is greater than twenty percent (20%) or less
than fifteen percent (15%).
2. TERM. Tenant shall use and occupy the Demised Premises for a term of
FIVE (5) years and ZERO (0) months, commencing on the FIRST day of JANUARY, 1998
and ending on the THIRTIETH day of DECEMBER, 2004 unless sooner terminated as
herein provided.
3. MINIMUM RENT.
(a) See Rent Rider attached. The first installment to be
payable on the execution of this Lease and subsequent installments to be payable
on the first day of each successive month of term hereof following the first
month of such terms.
(b) If the term of this Lease begins on a day other than the
first day of a month, rent from such day until the first day of the following
month shall be prorated at the rate of one-thirtieth of the fixed monthly rental
for each day of the first full calendar month of the term hereof (and, in such
event, the installment of rent paid at execution hereof shall be applied to the
rent due for the first full calendar month of the term hereof).
(c) All rent and other sums due to Landlord hereunder shall be
payable to CHUROAD ASSOCIATES, L.P. and mailed to the office of Landlord at
EQUIVEST MANAGEMENT COMPANY, X.X. XXX 00000, XXXXXXXXXXXX, XXXXXXXXXXXX,
00000-0000, or to such other party or at
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such other address as Landlord may designate, from time to time, by written
notice to Tenant, without demand and without deduction, set-off or counterclaim
(except to the extent demand or notice shall be expressly provided for herein).
(d) If Landlord, at any time or times, shall accept said rent
or any other sum due to it hereunder after the same, shall become due and
payable such acceptance shall not excuse delay upon subsequent occasions, or
constitute or be construed as, a waiver of any of Landlord's rights hereunder.
4. ESCALATION IN TAXES, OPERATING COSTS, COSTS OF LIVING: COST OF
ELECTRICITY.
(A) DEFINITIONS. As used in this Section 4, the following terms shall be defined
as hereinafter set forth.
(i) "TAXES" shall mean all real estate taxes and assessments,
general and special, ordinary or extraordinary, foreseen or unforeseen, imposed
upon the Building or with respect to the ownership thereof and the parcel of
land appurtenant thereto. If, due to a future change in the method of taxation,
any franchise, income, profit or other tax, however designated, shall be levied
or imposed in substitution in whole or in part, for (or in lieu of) any tax
which would otherwise be included within the defined herein.
(ii) "BASE YEAR OPERATING EXPENSES" shall be $4.00 per square
foot.
(iii) "TENANT'S FRACTION" shall be a fraction, the numerator
of which is the Demised Rentable Square Feet and the denominator of which is the
Rentable Square Feet in the Building.
9,390/58,023
(iv) (a) "OPERATING EXPENSES" shall mean except as hereinafter
limited, Landlord's reasonable and actual out-of-pocket expenses in respect of
the operation, maintenance and management of the Building (after deducting any
reimbursement, discount, credit, reduction or other allowance received by
Landlord) and shall include, without limitation: (1) wages and salaries (and
taxes imposed upon employers with respect to such employed by Landlord for
rendering service in the normal operation, cleaning, maintenance, and repair of
the Building; (2) contract costs of contractors hired for the operation,
maintenance and repair of the Building; (3) the cost of steam, electricity,
water and sewer and other utilities (except for electricity, which is separately
charged by Landlord as herein provided) chargeable to the operation and
maintenance of the Building; (4) cost of insurance for the Building including
fire and extended coverage, elevator, boiler, sprinkler leakage, water damage,
public liability and property damage, plate glass, and rent protection, but
excluding any charge for increased premiums due to acts or omissions of other
occupants of the Building or because of extra risk by such other occupants; (5)
supplies; and (6) legal and accounting
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expenses; (7) Taxes (8) management expense. Landlord agrees to prohibit the
increase of items (4), (5), (6) and (8) of this section by more than ten percent
(10%) from year to year.
The term "OPERATING EXPENSES" shall not include: (1) the cost of redecorating or
repairing not provided on a regular basis to tenants of the Building; (2) the
cost of any repair or replacement item which, by standard accounting practice,
should be capitalized; (3) any charge for depreciation, interest or rents paid
or incurred by Landlord; (4) any charge for Landlord's income tax, excess profit
taxes, franchise taxes or similar taxes on Landlord's business; (5) commissions.
(b) In determining Operating Expenses for any year,
if less than ninety-five percent (95%) of the Building rentable area shall have
been occupied by tenants at any time during such year, Operating Expenses shall
be deemed for such year to be an amount equal to the like expenses which
Landlord reasonably determines would normally be incurred had such occupancy
been ninety-five percent (95%) throughout such year.
(c) If, after the Base Year for Operating Expenses,
Landlord shall eliminate any component of Operating Expenses, as a result of the
introduction of a labor saving device or other capital improvement, the
corresponding item of Operating Expenses shall be deducted from the Operating
Expenses expended by Landlord in said Base Year for purposes of calculating
Tenant's Proportionate Share of any increased Operating Expenses.
(v) "DEMISED RENTABLE SQUARE FEET" shall mean 9,390 square
feet.
(vi) "RENTABLE SQUARE FEET IN THE BUILDING" shall mean 58,023
square feet.
(B) ESCALATION OF OPERATING EXPENSES.
(i) For and with respect to each calendar year of the term of
this Lease (and any renewals or extensions thereof) subsequent to the Base Year
for Operating Expenses, there shall accrue, as additional rent, an amount equal
to the product obtained by multiplying the Tenant's Fraction by the amount of
the increase, if any, of Operating Expenses for such year over the Base Year
Operating Expenses (appropriately prorated for any partial calendar year
inducted within the beginning and of the term).
(ii) Landlord shall furnish to Tenant as soon as reasonably
possible after the beginning of each calendar year of the term hereof subsequent
to the Base Year for Operating Expenses;
(a) A statement (the "EXPENSE STATEMENT") setting
forth (1) Operating Expenses for the previous calendar year, and (2) Tenant's
Fraction of the Operating Expenses for the previous calendar year, and
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(b) A statement of Landlord's good faith estimate of
Operating Expenses, and the amount of Tenant's Fraction thereof (the "ESTIMATED
SHARE"), for the current calendar year.
(iii) Beginning with the next installment of minimum rent due
after delivery of the foregoing statements to Tenant, Tenant shall pay to
Landlord, on account of its share of Operating Expenses (or Landlord shall pay
to Tenant, if the following quantity is negative):
(a) One-twelfth of the Estimated Share multiplied by
the number of full or partial calendar months elapsed during the current
calendar year up to and including the month payment is made, plus any amounts
due from Tenant to Landlord on account of Operating Expenses for prior periods
of time, less:
(b) The amount, if any, by which the aggregate of
payments made by Tenant on account of Operating Expenses for the previous
calendar year exceed those actually due as specified in the Expense Statement.
(iv) On the first day of each succeeding month up to the time
Tenant shall receive a new Expense Statement and statement of Tenant's Estimated
Share, Tenant shall pay to Landlord, on account of its share of Operating
Expenses, one-twelfth of the then current Estimated Share. Any payment due from
Tenant to Landlord, or any refund due from Landlord to Tenant, on account of
Operating Expenses not yet determined as of the expiration of the term hereof
shall be made within twenty (20) days after submission to Tenant of the next
Expense Statement.
5. UTILITIES SEPARATELY CHARGED TO DEMISED PREMISES. Tenant shall be
responsible for all utilities (including gas and electric) which are consumed
within the Demised Premises. If a separate meter is installed, Tenant shall pay
for the consumption of such utilities based on its metered usage. If no meter is
installed, Tenant shall pay a pro-rata share of any utility charges covering the
Demised Premises and other areas of the Building which pro-rata share shall be
based on the percentage which the Demised Rentable Square Feet bears to the
square footage of the areas of the Building serviced by such utility. Tenant
shall pay utility bills within fifteen (15) days after the receipt and
non-payment or late payment of such bills shall be considered a default under
this Lease.
6. SECURITY DEPOSIT. As additional security for the full and prompt
performance by Tenant of the terms and covenants of this Lease, Tenant has
deposited with the Landlord the sum of THIRTEEN THOUSAND ONE HUNDRED THIRTY
EIGHT DOLLARS AND THIRTY SEVEN CENTS ($13,138.37) which shall not constitute
rent for any month (unless so applied by Landlord on account of Tenant's
default). Tenant shall, upon demand, restore any portion of said security
deposit, which may be applied by Landlord to the cure of any default by Tenant
hereunder. To the extent that Landlord has not applied said sum on account of a
default, the security deposit shall be returned (without interest) to Tenant
promptly at termination of this Lease.
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7. SERVICES. Landlord agrees that it shall:
(a) Provide passenger elevator service to the Demised Premises
during all days with one (1) elevator subject to call at all other times. Tenant
and its employees and agents shall have access to the Demised Premises at all
times, subject to compliance with such security measures as shall be in effect
for the Building.
(b) Provide water for drinking, lavatory and toilet purposes
drawn through fixtures installed by Landlord; and
(c) Furnish the Demised Premises with electric for heating,
hot and chilled water and air-conditioning. Tenant shall not install or operate
in the Demised Premises any electrically operated equipment or other machinery,
other than typewriters, adding machine and other machinery and equipment
normally used in modem offices, or any plumbing fixtures, without first
obtaining the prior written consent of the Landlord. Landlord may condition such
consent upon the payment by Tenant of additional rent as compensation for the
additional consumption of water and/or electricity occasioned by the operation
of said equipment, fixtures, or machinery.
Tenant, at Tenant's sole expense, shall be responsible for the installation,
maintenance, and use of any equipment of any kind or nature whatsoever which
would or might necessitate any changes, replacements, or additions to the water
system, plumbing system, heating system, air-conditioning system, or the
electrical system servicing the Demised Premises or any other portion of the
Building without the prior written consent of the Landlord, and in the event
such consent is granted, such replacement, changes or additions shall be paid
for by Tenant. It is understood that Landlord does not warrant that any of the
services referred to in this Section 7 will be free from interruption from
causes beyond the reasonable control of Landlord. No interruption of service
shall ever be deemed an eviction or disturbance of Tenant's use and possession
of the Demised Premises or any part thereof or render Landlord liable to Tenant
for damages by abatement or rent or otherwise relieve Tenant from performance of
Tenant's obligations under this Lease, unless Landlord, after reasonable notice,
shall willfully and without cause fail or refuse to take action within its
control.
8. CARE OF DEMISED PREMISES. Tenant agrees, on behalf of itself, its
employees and agents that it shall:
(a) Comply at all times with any and all federal, state and
local statutes, regulations, ordinances, and other requirements of any of the
constituted public authorities relating to its use and occupancy of the Demised
Premises.
(b) Give Landlord access to the Demised Premises at all
reasonable times, without charge or diminution of rent, to enable Landlord (i)
to examine the same and to make such repairs, additions and alterations as
Landlord may be permitted to make hereunder or as Landlord may deem advisable
for the preservation of the integrity, safety and good order of the Building or
any part
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thereof; and (ii) upon reasonable notice, to show the Demised Premises to
prospective mortgagees and purchasers and, during the six (6) months prior to
expiration of the term, to prospective tenants;
(c) Keep the Demised Premises in good order and condition and
replace all glass broken by Tenant, its agents, employees or invitees with glass
of the same quality as that broken, except for glass broken by fire and extended
coverage type risks, and commit no waste in the Demised Premises;
(d) Upon the termination of this Lease in any manner
whatsoever, remove Tenant's goods, effects and those of any other person
claiming under Tenant, and quit and deliver up the Demised Premises to Landlord
peaceably and quietly in as good order and condition at the inception of the
term of this Lease or as the same hereafter may be improved by Landlord or
Tenant, reasonable use and wear thereof, damage from fire and extended coverage
type risks, and repairs which are Landlord's obligation excepted. Goods and
effects not removed by Tenant at the termination of this Lease, however
terminated, shall be considered abandoned and Landlord may dispose of and/or
store the same as it deems expedient, the cost thereof to be charged to Tenant;
(e) Not place signs on the Demised Premises except on doors
and then only of a type and with lettering and text approved by Landlord.
Identification of Tenant and Tenant's location shall be provided in a directory
in the Building Lobby;
(f) Not overload, damage or deface the Demised Premises or do
any act which might make void or voidable any insurance on the Demised Premises
or the Building or which may render an increased or extra premium payable for
insurance (and without prejudice to any right or remedy of Landlord regarding
this subparagraph, Landlord shall have the right to collect from Tenant, upon
demand, any such increase or extra premium). Tenant shall maintain at its own
sole cost adequate insurance coverage for all of its equipment, furniture,
supplies and fixtures and provide Landlord with certificates evidencing such
coverage;
(g) Not make any alteration of or addition to the Demised
Premises without the prior written approval of Landlord (except for work of a
decorative nature);
(h) Not install or authorize the installation of any coin
operated vending machine, except for the dispensing of cigarettes, coffee, and
similar items to the employees of Tenant for consumption upon the Demised
Premises; and
(i) Observe the rules and regulations annexed hereto as
Exhibit "C", as Landlord may from time to time amend the same for the general
safety, comfort and convenience of Landlord, occupants and tenants of the
Building.
9. SUBLETTING AND ASSIGNING. Tenant shall not assign this Lease or
sublet all or any portion of the Demised Premises without first obtaining
Landlord's prior written consent thereto which shall not be unreasonably
withheld or delayed. If such consent is given, it will not
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release Tenant from its obligations hereunder and which will not be deemed a
consent to any further subletting or assignment. If Landlord consents to any
such subletting or assignment, it shall nevertheless be a condition to the
effectiveness thereof that a fully executed copy of the sublease or assignment
be furnished to Landlord and that any assignee assume in writing all obligations
of Tenant hereunder, Tenant shall not mortgage or encumber this Lease.
10. DELAY IN POSSESSION. If Landlord shall be unable to deliver
possession of Demised Premises to Tenant on the date specified for commencement
of the term hereof because of the holding over or retention of possession of any
tenant or occupant, or if repairs, improvements or decoration of the Demised
Premises are not completed, or for any other reason, Landlord shall not be
subject to any liability to Tenant. Under such circumstances, the rent reserved
and covenanted to be paid herein shall not commence until possession of Demised
Premises is given or until Landlord shall give written notice to Tenant that the
Demised Premises are available for occupancy by Tenant, whichever shall first
occur, and no such failure to give possession shall in any other respect affect
the validity of this Lease or any obligation to extend the term of this Lease.
11. FIRE OR CASUALTY. In case of damage to the Demised Premises or the
Building by fire or other casualty, Tenant shall give immediate notice thereof
to Landlord. Landlord shall thereupon cause the damage to be repaired with
reasonable speed, subject to delays, which may arise by reason of adjustment of
loss under insurance policies and for delays beyond the reasonable control of
Landlord. To the extent and for the time that the Demised Premises are thereby
rendered untenantable, the rent shall proportionately xxxxx.
In the event the damage shall be so extensive that Landlord shall decide not to
repair or rebuild, or if any mortgagee, having the right to do so shall direct
that the insurance proceeds are to be applied to reduce the mortgage debt rather
than to the repair of such damage, this Lease shall, at the option of Landlord,
exercisable by written notice to Tenant given within thirty (30) days after
Landlord is notified of the casualty, be terminated as of a date specified in
such notice (which shall not be more than ninety (90) days thereafter), and the
rent (taking into account any abatement as aforesaid) shall be adjusted to the
termination date. Thereafter, Tenant shall promptly vacate the Demised Premises.
12. LIABILITY. Tenant agrees that Landlord and its building manager and
their officers, employees and agents shall not be liable to Tenant, and Tenant
hereby releases said parties, for any personal injury or damage to or loss of
personal property in the Demised Premises from any cause whatsoever unless such
damage, loss or injury is the result of the willful and gross negligence of
Landlord, its building manager, or their officers, employees or agents, and
Landlord and its building manager and their officers or employees shall not be
liable to Tenant for any such damage or loss whether or not the result of their
willful and gross negligence to the extent Tenant is compensated therefor by
Tenant's insurance. Tenant shall and does hereby indemnify and hold Landlord
harmless of and from all loss or liability incurred by Landlord in connection
with any failure of Tenant to fully perform its obligations under this Lease and
in connection with any personal injury or damage of any type or nature occurring
in or resulting out of Tenant's use of the Demised Premises, unless due to
Landlord's fault.
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13. EMINENT DOMAIN. If the whole or a substantial part of the Building
shall be taken or condemned for a public or quasi-public use under a statute or
by right of eminent domain or private purchase in lieu thereof by any competent
authority, Tenant shall have no claim against Landlord and shall not have any
claim or right to any portion of the amount that may be awarded as damages or
paid as a result of any such condemnation or purchase; and all right of the
Tenant to damages therefore are hereby assigned by Tenant to Landlord. The
foregoing shall not, however, deprive Tenant of any separate award for moving
expenses or for any other award which would not reduce the award payable to
Landlord. Upon the date the right to possession shall vest in the condemning
authority, this Lease shall cease and terminate with rent adjusted to such date,
and Tenant shall have no claim against Landlord for the value of any unexplored
term of this Lease.
14. INSOLVENCY.
(a) The appointment of a receiver or trustee to take
possession of all or a portion of the assets of Tenant, or (b) an assignment by
Tenant for the benefit of creditors, or (c) the institution by or against Tenant
of any proceedings for bankruptcy or reorganization under any state or federal
law (unless in the case of involuntary proceedings, the same shall be dismissed
within forty five (45) days after institution), or (d) any execution issued
against Tenant which is not stayed or discharged within thirty (30) days after
issuance of any execution sale of the assets of Tenant, shall constitute a
breach of this Lease by Tenant. Landlord in the event of such a breach, shall
have, without need of further notice, the rights enumerated in Section 15
herein.
15. DEFAULT.
(a) If Tenant shall fail to pay rent or any other sum payable
to Landlord hereunder when due, or if Tenant shall fail to perform or observe
any of the other covenants, terms or conditions contained in this Lease within
twenty (20) days (or such longer period as is reasonably required to correct any
such default, provided Tenant promptly commences and diligently continues to
effectuate a cure), but in any event within sixty (60) days after written notice
thereof by Landlord, or if any of the events specified in Section 14 occur, or
if Tenant abandons the Demised Premises and ceases to pay rent during the term
hereof or removes or manifests an intention to remove any of Tenant's goods or
property therefrom other than in the ordinary and usual course of Tenant's
business, then and in any of said cases (notwithstanding any former breach of
covenant or waiver thereof in a former instance), Landlord, in addition to all
other rights and remedies available to it by law or equity or by any other
provisions hereof, may at any time thereafter:
(i) upon three (3) days notice to Tenant, declare to
be immediately due and payable, the rent and other charges herein reserved for
the balance of the term of this Lease (taken without regard to any early
termination of said term on account of default), a sum equal to the Accelerated
Rent Component (as hereinafter defined), and Tenant shall remain liable to
Landlord as hereinafter provided; and/or
(ii) whether or not Landlord has elected to recover
the Accelerated
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Rent Component, terminate this Lease on at least five (5) days notice to Tenant
and, on the date specified in said notice, this Lease and the term hereby
demised and all rights of Tenant hereunder shall expire and terminate and Tenant
shall thereupon quit and surrender possession of the Demised Premises to
Landlord in the condition elsewhere herein required and Tenant shall remain
liable to Landlord as hereinafter provided.
(b) For purposes herein, the Accelerated Rent Component shall
mean the aggregate of:
(i) all rent and other charges, payments, costs and
expenses due from Tenant to Landlord and in areas at the time of the election of
Landlord to recover the Accelerated Rent Component;
(ii) the minimum rent reserved for the then entire
unexpired balance of the term of this Lease (taken without regard to any early
termination of the term by virtue of any default), plus all other charges,
payments, costs and expenses herein agreed to be paid by Tenant up to the end of
said term which shall be capable of precise determination at the time of
Landlord's election to recover the Accelerated Rent Component; and
(iii) Landlord's good faith estimate of all charges,
payments, costs and expenses herein agreed to be paid by Tenant up to the end of
said term which shall not be capable to precise determination as aforesaid (and
for such purposes no estimate of any component of the additional rent to accrue
pursuant to the provisions of Section 4 hereof shall be less than the amount
which would be due if each such component continued at the highest monthly rate
or amount in effect during the twelve (12) months immediately preceding the
default).
(c) In any case in which this Lease shall have been
terminated, or in any case in which Landlord shall have elected to recover the
Accelerated Rent Component and any portion of such sum shall remain unpaid,
Landlord may without further notice, enter upon and repossess the Demised
Premises, by force, summary proceedings, ejectment or otherwise, and may
dispossess Tenant and remove Tenant and all other persons and property from the
Demised Premises and may have, hold and enjoy the Demised Premises and the rents
and profits therefrom. Landlord may, in its own name, as agent for Tenant, if
this Lease has not been terminated, or in its own behalf, if this Lease has been
terminated, relet the Demised Premises or any part thereof for such term or
terms (which may be greater or less than the period which would otherwise have
constituted the balance of the term of this Lease) and on such terms (which may
include concessions of free rent) as Landlord in its sole discretion may
determine. Landlord may, in connection with any such reletting, cause the
Demised Premises to be decorated, altered, divided, consolidated with other
space or otherwise changed or prepared for resetting. No reletting shall be
deemed a surrender and acceptance of the Demised Premises.
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(d) Tenant shall, with respect to all periods of time up to
and including the expiration of the term of this Lease (or what would have been
the expiration date in the absence of default or breach) remain liable to
Landlord as follows:
(i) In the event of termination of this Lease on
account of Tenant's fault or breach, Tenant shall remain liable to Landlord for
damages equal to the rent and other charges payable under this Lease by Tenant
as if this Lease were still in effect, less the net proceeds of any reletting
after deducting all costs incident thereto (including without limitation all
repossession costs, brokerage and management commission, operating and legal
expenses and fees, alteration costs and expenses of preparation for reletting
(and to the extent such damages shall not have been recovered by Landlord by
virtue of payment by Tenant of the Accelerated Rent Component (but without
prejudice to the right of Landlord to demand and receive the Accelerated Rent
Component), such damages shall be payable to Landlord monthly upon presentation
to Tenant of a xxxx for the amount due.
(ii) In the event and so long as this Lease shall not
have been terminated after default or breach by Tenant, the rent and all other
charges payable under this Lease shall be reduced by the net proceeds of any
reletting by Landlord (after deducting all costs incident thereto as above set
forth) and by any portion of the Accelerated Rent Component paid by Tenant to
Landlord, and any amount due to Landlord shall be payable monthly upon
presentation to Tenant of a xxxx for the amount due.
(e) In the event Landlord shall, after default or breach by
Tenant, recover the Accelerated Rent Component from Tenant and it shall be
determined at the expiration of the term of this Lease (taken without regard to
early termination for default) that a credit is due Tenant because the net
proceeds of reletting, as aforesaid, plus amounts paid to Landlord by Tenant
exceed the aggregate of rent and other charges accrued in favor of Landlord to
the end of said term, Landlord shall refund such excess to Tenant, without
interest, promptly after such determination.
(f) Landlord shall in no event be responsible or liable for
any failure to relet the Demised Premises or any part thereof, or for any
failure to collect any rent due upon a reletting.
(g) As an additional and cumulative remedy of Landlord in the
event of termination of this Lease by Landlord following any breach or default
by Tenant, Landlord, at its option, shall be entitled to recover damages for
such breach in an amount equal to the Accelerated Rent Component (determined
from and after the date of Landlord's election under this subsection (g) less
the fair rental value of the Demised Premises for the remainder of the term of
this Lease (taken without regard to the early termination) and such damages
shall be payable by Tenant upon demand. Nothing contained in this Lease shall
limit or prejudice the right of Landlord to prove and obtain as damages incident
to a termination of this Lease, in any bankruptcy reorganization or other court
proceedings, the maximum amount allowed by any statute or rule of law in effect
with such damages are to be proved.
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(h) In the event of any monetary default occurrence by which
Landlord shall have the rights and remedies specified in this Section 15:
(i) INTENTIONALLY DELETED.
(ii) For the purpose of obtaining possession of the
Demised Premises, Tenant hereby authorizes and empowers any prothonotary or
attorney of any court of record to appear for Tenant and to file in any court an
agreement for entering an amicable action and judgment in ejectment for recovery
of possession, and/or to confess judgment for possession against Tenant and
those claiming by, through or under Tenant in favor of Landlord by Complaint to
Confess Judgment or otherwise, and Tenant agrees that upon such entry or
judgment a writ of possession for the Demised Premises may forthwith issue; and
(i) Tenant hereby waives all errors and defect of a procedural
nature in any proceedings brought against it by Landlord under this Lease.
Tenant further waives the right to any notices to quit as may be specified in
the Landlord and Tenant Act of Pennsylvania, as amended, and agrees that five
(5) days notice shall be sufficient in any case where a longer period may be
statutorily specified.
(j) If rent or any other sum due from Tenant to Landlord shall
be over due for more than five (5) days after notice from Landlord, it shall
thereafter bear interest at the rate of twenty percent (20%) per annum (or, if
lower, the highest legal rate) until paid.
16. SUBORDINATION. This lease is and shall be subject and subordinate
to all the terms and conditions of all underlying mortgages and to all ground or
underlying leases of the entire Building which may now or hereafter be secured
upon the Building, and to all renewals, modifications, consolidations,
replacements and extensions thereof. This clause shall be self-operative and no
further instrument of subordination, Tenant shall execute, within fifteen (15)
days after request, any certificate that Landlord may reasonably require
acknowledging such subordination. Notwithstanding the foregoing, the party
holding the instrument to which this Lease is subordinate shall have the right
to recognize and preserve this Lease in the event of any foreclosure sale or
possessory action, and in such case this Lease shall continue in full force and
effect at the option of the party holding the superior lien, and Tenant shall
attorn to such party and shall execute, acknowledge and deliver any instrument
that has for its purpose and effect the confirmation of such attornment.
17. NOTICES. All bills, statements, notices or communications which
Landlord may desire or be required to give to Tenant shall be deemed
sufficiently given or rendered if in writing and either delivered to an officer
of Tenant or sent by registered, or certified mail or overnight delivery service
addressed to Tenant at the Building, and the time of the giving of such notice
or communication shall be deemed to be the time when the same is delivered to
Tenant or deposited in the mail, as the case may be. Any notice by Tenant to
Landlord must be served by registered; certified mail or overnight delivery
addressed to Landlord at the address where the last previous
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rental hereunder was payable, or in the case of subsequent change upon notice
given, to the latest address furnished.
18. HOLDING-OVER. Should Tenant continue to occupy the Demised Premises
after expiration of the term of this Lease or any renewal or renewals thereof,
or after a forfeiture incurred, such tenancy shall (without limitation of any of
Landlord's rights or remedies therefor) be one at sufferance from month to month
at a minimum monthly rental equal to twice the rent payable for the last month
of the term of this Lease.
19. MISCELLANEOUS.
(a) Tenant represents and warrants that it has not employed
any broker or agent other than Xxxx Xxxxxxx, Xx. of Brandywine Realty Services
Corporation located at 00 Xxxxxx Xxxxxxxxx, Xxxxx 000 in Xxxxxxx Xxxxxx, XX
00000, as its representative in the negotiation for or the obtaining of this
Lease, and agrees to indemnify and hold Landlord harmless from any and all cost
or liability for compensation claimed by any broker or agent with whom it has
dealt.
(b) The word "TENANT" as used in this Lease shall be construed
to mean tenants in all cases where there is more than one tenant, and the
necessary grammatical changes required to make the provisions hereof apply to
corporations, partnerships or individuals, men or women, shall in all cases be
assumed as though in each case fully expressed. This Lease shall not inure to
the benefit of any assignee, heir, legal representative, transferee or successor
of Tenant except upon the express written consent or election of Landlord.
Subject to the foregoing limitation, each provision hereof shall extend to and
shall, as the case may require, bind and inure to the benefit of Tenant and its
heirs, legal representatives, successors and assigns.
(c) The term "LANDLORD" as used in this Lease means the fee
owner of the Building or, if different, the party holding and exercising the
right, as against all others (except space Tenants of the Building) to
possession of the entire Building. Landlord above-named represents that it is
the holder of such rights as of the date of execution hereof. In the event of
the voluntary transfer of such ownership or right to a successor-in-interest of
Landlord, Landlord shall be freed and relieved of all liability and obligation
hereunder which shall thereafter accrue (and, as to any unapplied portion of
Tenant's security deposit, Landlord shall be relieved of all liability therefor
upon transfer of such portion to its successor in interest) and Tenant shall
look solely to such successor in interest for the performance of the covenants
and obligations of the Landlord hereunder (either in terms of ownership or
possessory rights). The successor in interest shall not (i) be liable for any
previous act or omission of a prior landlord; (ii) be subject to any rental
offsets or defenses against a prior landlord; (iii) be bound by any amendment of
this Lease made without its written consent, or by payment by Tenant of rent in
advance in excess of one (1) month's rent; or (iv) be liable for any security
not actually received by it. Subject to the foregoing, the provisions hereof
shall be binding upon and inure to the benefit of the successors and assigns of
Landlord. Notwithstanding anything to the contrary contained in this Lease, any
liability of Landlord, its agents, partners or employees, arising out of or in
respect of this Lease, the Demised Premises or the Building, and if Landlord
shall
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default in the performance of Landlord's obligation under this Lease or
otherwise, Tenant shall look solely to the equity of Landlord in its interest in
the Building.
(d) Tenant agrees to execute a memorandum of this Lease in the
form submitted by Landlord, which may be recorded by Landlord. Tenant also
agrees to execute any assignment of this Lease by Landlord, evidencing its
consent to such assignment.
20. LANDLORD IMPROVEMENT. Landlord shall, in a good and workmanlike
manner, cause the Demised Premises to be completed in accordance with the plans
approved by Landlord and Tenant pursuant to Exhibit "B" the "Plan of Buildout"
hereof, reserving the right to: (a) make substitutions of material of equivalent
grade and quality when and if any specified material shall not be readily and
reasonably available; (b) make changes necessitated or by conditions met during
the course of construction, provided that Tenant's approval of any substantial
change (and any reduction of cost incident thereto) shall first be obtained
(which approval shall not be reasonably withheld so long as there shall be
general conformity with said working drawings).
21. WAIVER OF SUBROGATION. Each party hereto hereby waives any and
every claim which arises or which may arise in its favor and against the other
party hereto during the term of this Lease, or any extension or renewal thereof,
for any and all loss of, or damage to, any of its property located within or
upon or constituting a part of the Building, to the extent that such loss or
damage is recovered under an insurance policy or policies and to the extent such
policy or policies contain provisions permitting such waivers of claims. Each
party agrees to request its insurers to issue policies containing such
provisions and if any extra premium is payable therefor, the party which would
benefit from the provision shall have the option to pay such additional premium
in order to obtain such benefit.
22. RENT TAX. If, during the term of this Lease or any renewal or
extension thereof, any tax is imposed upon the privilege of renting or occupying
the Demised Premises or upon the amount of rentals collected therefor, Tenant
will pay each month, as additional rent, a sum equal to such tax or charge that
is imposed for such month, but nothing herein shall be taken to require Tenant
to pay any income, estate, inheritance or franchise tax imposed upon Landlord.
23. PRIOR AGREEMENT, AMENDMENTS. Neither party hereto has made any
representations nor promises except as contained herein or in some further
writing signed by the party making such representation or promise. No other
agreement hereinafter made shall be effective to change, modify, discharge or
effect an abandonment of this Lease, in whole or in part, unless such agreement
is in writing and signed by the party against whom enforcement of the change,
modification, discharge or abandonment is sought. Tenant agrees to execute any
amendment to this Lease required by a mortgagee of the Building, which amendment
does not materially adversely affect Tenant's rights or obligation hereunder.
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24. CAPTIONS. The captions of the paragraphs in this Lease are inserted
and included solely for convenience and shall not be considered or given any
effect in construing the provisions hereof.
25. MECHANIC'S LIEN. Tenant shall, within ten (10) days after notice
from Landlord, discharge any mechanic's lien for materials or labor claimed to
have been furnished to the Demised Premises on Tenant's behalf (except for work
contracted for by Landlord) and shall indemnify and hold harmless Landlord from
any loss incurred in connection therewith.
26. LANDLORD'S RIGHT TO CURE. Landlord may (but shall not be
obligated), give five (5) days notice to Tenant (except that no notice need be
given in case of emergency) to cure on behalf of Tenant any default hereunder by
Tenant, and the cost of such cure (including any attorney's fees incurred) shall
be deemed additional rent payable upon demand.
27. PUBLIC LIABILITY INSURANCE. Tenant shall at all times during the
term hereof maintain in full force and effect with respect to the Demised
Premises and Tenant's use thereof, comprehensive public liability insurance,
naming Landlord as an additional insured, covering injury to person in amounts
at least equal to One Million ($1,000,000) Dollars combined single limit bodily
injury and property. Tenant shall lodge with Landlord duplicate originals or
certificates of such insurance at or prior to the commencement date of the term
hereof, together with evidence of paid-up premiums, and shall lodge with
Landlord renewals thereof at least fifteen (15) days prior to expiration.
28. ESTOPPEL STATEMENT. Tenant shall from time to time, within ten (10)
days after request by Landlord, execute, acknowledge and deliver to Landlord a
statement certifying that this Lease is unmodified and in full force and effect
(or that the same is in full force and effect as modified, listing any
instruments or modifications), the dates to which rent and other charges have
been paid, and whether or not, to the best of Tenant's knowledge, Landlord is in
default or whether Tenant has any claims or demands against Landlord (and, if
so, the default, claim and/or demand shall be specified).
29. EARLY OCCUPANCY. Tenant may commence to occupy the Demised premises
on December 29, 1997.
30. STORAGE SPACE. During the term of this Lease and any extensions
thereof Tenant may occupy a storage area consisting of 131 rentable square feet
in the ground floor of the building (the "STORAGE AREA"). Rent for the Storage
Area will be $4.00 per square foot plus utilities.
31. RIGHT OF FIRST OFFER. Tenant shall have the "Right of First Offer"
on any contiguous/adjacent space to the Premises. Such right shall be
subordinate to the existing rights of current Tenants and subject to the
following: Tenant must give written notice to Landlord of its desire to lease
all or a portion of the contiguous/adjacent space. Upon its availability,
Landlord shall
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provide Tenant with the amount of space available, its availability date and
other terms and conditions. Tenant shall have five (5) days to either accept or
decline the opportunity.
32. CONCESSION. Landlord will give Tenant a concession equal to the
first month's rent ($13,138.37) to be used to either offset the first month's
Minimum Rent or as payment for additional improvements made by Landlord.
IN WITNESS WHEREOF, the parties hereto have executed this Lease or
caused this Lease to be executed by their duly authorized representatives the
day and year first above written.
LANDLORD: CHUROAD ASSOCIATES, L.P.
BY:
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DATE: 10/20/97
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TENANT: DATAMATIX
BY:
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DATE: 10/13/97
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