LEASE
This LEASE made as of this ____ day of ________, 1997, between
FIRST INDUSTRIAL PENNSYLVANIA, L.P., a Delaware limited partnership (the
"Landlord"), and XXXXX XXXXXX (LANCASTER, PA.) INC., a Pennsylvania
corporation (the "Tenant").
BACKGROUND
The Premises (hereinafter defined) is a portion of certain
property (the "Property") located partly in Denver Borough, and partly
in East Cocalico Township, Lancaster County, Pennsylvania. The Property
consists of the land with the buildings and improvements now or
hereafter erected thereon, as more particularly described on Exhibit
"Legal Description". Tenant desires to lease that portion of the
Property consisting of approximately 412,711 square feet of the main
warehouse building (exclusive of interior docking area) on the Property
(the "Building"), as more particularly shown on Exhibit "Premises" (the
"Premises").
ARTICLE ONE
Term/Demise
1.1. Landlord leases the Premises to Tenant, and Tenant leases the
Premises from Landlord, upon the terms and conditions of this Lease, for
a term (the "Term") commencing on the Commencement Date (hereinafter
defined) and expiring on the last day of the one-hundredth twentieth
(120th) calendar month following the Commencement Date, together with
(a) the exclusive right to use for parking fifteen (15) tractor trailers
the areas designated as the "Schein Trailer Area" on Exhibit "Site Plan"
attached hereto (the "Schein Trailer Area"), (b) the exclusive right to
use for parking family vehicles of Tenant's employees, invitees and
guests the area shown designated as "Schein Parking Area" on Exhibit
"Site Plan" attached hereto, and (c) the non-exclusive right to use only
for their intended purposes the roads, sidewalks, driveways, parking
areas and landscaped areas on the Property intended for the common use
of the tenants of the Property and others to whom Landlord has granted
or may grant such rights (together with the Schein Trailer Area and the
Schein Parking Area, the "Common Areas"). Notwithstanding anything
contained in this Lease to the contrary, Tenant shall not have the right
to park tractor trailers on any portion of the Common Areas, except for
the Schein Trailer Area.
1.2. The Term shall commence and Rent (as hereinafter defined) shall
begin to accrue on March 1, 1998 (the "Commencement Date").
1.3. Landlord shall prepare the Premises for Tenant's initial occupancy
in accordance with the plans and specifications for the Premises, which
plans and specifications are attached hereto as Exhibit "Specifications"
(the "Specifications"). Landlord reserves the right, however; (i) to
make substitutions of material of equivalent grade and quality when and
if specified material shall not be readily and reasonably available, and
(ii) to make reasonable changes necessitated by conditions met in the
course of construction which changes shall not substantially deviate
from the intended results of the Specifications, provided, however, that
no such
substitutions or changes shall materially alter the appearance or
utility of the furnished Premises as intended by the Specifications. The
Premises shall be deemed to be substantially completed on the date when
the Borough of Denver or the Township of East Cocalico as applicable,
has issued a certificate of occupancy for the Premises and the Premises
have been substantially completed in accordance with the Specifications
under this Section 1.2, except for (i) such items of finishing and
construction of a nature which are not necessary to make the Premises
reasonably tenantable for Tenant's use and (ii) items not then completed
because of a Tenant Delay (hereinafter defined) (the "Substantial
Completion Date"). Landlord shall give Tenant notice of the Substantial
Completion Date.
1.4. The Specifications anticipate that Landlord's work pursuant to
Section 1.3 shall be completed in Phases, delineated in the
Specifications as Phases I through VB, Office Phase and Exterior. For
purposes of this Section 1.4 only, the term "substantially completed"
shall mean that a Phase has been completed to the extent necessary to
allow the Tenant to install racking and conveyance equipment in the area
related to such Phase. In the event that Phases I, II, III and IV
(collectively, the "Key Phases") are not substantially completed by
April 1, 1998 because of delays due to governmental intervention (not
caused by Landlord's violation of law), Tenant Delay (hereinafter
defined), unusual scarcity of or inability to obtain labor or materials,
strikes, walkouts or similar labor difficulties, casualty or any other
causes not within Landlord's reasonable control (collectively,
"Uncontrollable Delays"), Landlord shall not be subject to any liability
to Tenant, and no such failure to substantially complete the Key Phases
by April 1, 1998 shall in any respect affect the validity of this Lease
or any obligation of the Tenant hereunder. In the event and to the
extent that the Key Phases are not substantially completed by April 1,
1998 for reasons other than Uncontrollable Delays, Basic Rent reserved
hereunder shall be abated for the number of days beyond April 1, 1998 by
which substantial completion of the Key Phases is delayed for such
reasons other than Uncontrollable Delays (which abatement shall be
Tenant's sole and exclusive remedy for such delay). As used in this
Lease, the term "Tenant Delay" shall mean any delays resulting from
changes in the work to be performed by Landlord which are required by
Tenant or any delays resulting from any activity or the performance of
any work in or about the Premises or Property by Tenant or any of its
employees, agents or contractors. Landlord acknowledges that Tenant is
not expected to deliver a detailed scope of work for the office area
until December 31, 1997 and agrees that failure of Tenant to provide
such detailed scope of work prior to December 31, 1997 shall not
constitute Tenant Delay.
1.5. Landlord presently estimates that the Substantial Completion Date
will be May 1, 1998 (the "Scheduled Commencement Date"). If the Premises
are not substantially completed by the Scheduled Commencement Date
because of Uncontrollable Delays, Landlord shall not be subject to any
liability to Tenant and no such failure to complete the Premises by the
Scheduled Commencement Date shall in any respect affect the validity of
this Lease or any obligation of the Tenant hereunder. In the event and
to the extent that the Premises are not substantially completed May 1,
1998 for reasons other than Uncontrollable Delays, time being of the
essence, the Tenant shall receive a credit against Basic Rent equal to
(a) two hundred percent (200%) of the daily Basic Rent accrual times (b)
the number of days beyond May 1, 1998 by which the Substantial
Completion Date is delayed for such reasons other than Uncontrollable
Delays (which credit shall be Tenant's sole and exclusive remedy for
such delay).
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1.6. Within ten (10) days after the Substantial Completion Date,
Landlord and Tenant, and their respective construction representatives,
shall inspect the Premises and shall prepare a punchlist of work
required under Section 1.2 not then actually completed by Landlord (the
"Punchlist Inspection"); Landlord agrees that Landlord shall complete
with commercially reasonable speed and diligence the items specified on
such punchlist. Provided that Tenant notifies Landlord within sixty (60)
days after the Commencement Date of latent defects in work required
under Section 1.2 which could not have been reasonably discovered at the
time of the Punchlist Inspection, Landlord shall correct with
commercially reasonable speed and diligence any such latent defects of
which Landlord is notified within sixty (60) days after the Commencement
Date.
1.7. Subject to Landlord's reasonable requirements imposed to assure
that Landlord and Landlord's contractors can work on the Building and
the Premises without interference or delay, Tenant shall have access to
the Premises during normal working hours prior to the Commencement Date
only for the purpose of installing Tenant's racking and other equipment
within the Premises and stocking inventory prior to commencement of
operations. In performing such work, Tenant shall be bound by all of the
obligations of Tenant under this Lease including specifically, without
limitation, the requirements of Article 7. Landlord and Tenant each
agree to use reasonable efforts to coordinate their respective work with
the other so as to achieve the Substantial Completion Date.
1.8. The first lease year of the Term shall commence on the
Commencement Date and shall end on the day immediately preceding the first
anniversary of the Commencement Date. Each subsequent lease year shall be a
period of twelve months, commencing on the day immediately following the
expiration of the prior lease year and expiring on the day immediately
preceding the anniversary of the commencement of such lease year.
1.9. On a single occasion only, at any time prior to or during the
Term, Tenant may at its sole cost and expense retain a licensed engineer or
architect ("Tenant's Professional") who shall furnish to both parties
measurements, expressed in terms of rentable square feet, of the
Premises and the Building. In the event that Tenant's Professional
certifies to a measurement which varies more than 2,000 square feet from
the 412,711 square feet represented by Landlord in the Lease (any
smaller discrepancy being deemed "de minimus" and of no consequence),
Landlord shall either (i) agree to and execute an amendment to this
Lease adjusting the rentable square footage of the Premises and/or the
rentable square footage of the Building in accordance with the
measurement(s) of Tenant's Professional and acknowledging the resulting
change in Tenant's Proportionate Share or (ii) retain, at its sole cost
and expense, a licensed architect or engineer ("Landlord's
Professional") to provide a certification as to the actual rentable
square footage of the Premises and/or the Building, as appropriate. In
the event that Landlord elects "(ii)" above and Landlord's Professional
certifies as to a measurement which varies by 8,000 square feet or less
from the measurement furnished by Tenant's Professional, the two
measurements shall be added, with the sum divided by two and the
resulting average measurement shall be deemed for all purposes under the
lease to be the actual measurement. In the event that Landlord elects
"(ii)" above and Landlord's Professional certifies as to a
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measurement which varies by more than 8,000 square feet from the
measurement furnished by Tenant's Professional, then Landlord's
Professional and Tenant's Professional shall attempt to reach a
consensus regarding the measurement(s) in dispute, failing which
Landlord's Professional and Tenant's Professional shall jointly select a
third professional (the "Third Professional"), whose fees shall be
shared equally by the parties, to certify as to the measurement in
dispute. The certification and measurement findings of the Third
Professional shall be conclusive and binding upon the parties hereto.
Tenant shall have an additional one time right to
obtain a measurement of the Premises and the Building in the event that
Landlord and Tenant, or their respective successors, enter into an
agreement for the lease of any additional space in the Building, as the
same shall then exist or in the event that Landlord expands the
Building. Any dispute as to such measurement(s) shall be resolved as set
forth in the immediately preceding paragraph.
ARTICLE TWO
Use
2.1. Tenant shall use the Premises only for assembling, packaging,
labeling, warehousing and distributing pharmaceutical products that are
not Hazardous Materials (hereinafter defined), with appurtenant offices,
employee cafeteria, and vending machine area, and for no other purposes.
Notwithstanding anything to the contrary contained in this Section 2.1,
Tenant shall have the right:
(a) to assemble, package, label, warehouse and distribute
pharmaceutical products and related products used in medical offices which
are, or which have components which are, Hazardous Materials provided: (i) such
products are not inherently flammable or explosive and (ii) such
products are assembled, packaged, labeled, stored, used and disposed of
in accordance with all applicable laws, ordinances and regulations and
the other requirements of this Lease; and
(b) to use in conducting Tenant's operations at the Premises
(i) propane in the operation of Tenant's forklifts, (ii) materials and supplies
required for use by Tenant in servicing its truck fleet, (iii) cleaning
substances or materials in commercially reasonable amounts which are
customarily used in commercial warehouse operations provided that the
items described in this subsection (b) shall be used, stored and
disposed of in accordance with all applicable laws, ordinances and
regulations and other requirements of this Lease.
ARTICLE THREE
Rent
3.1. Tenant agrees to pay to Landlord, promptly when due, without
notice or demand and without deduction or set-off of any amount for any reason
whatsoever, except as may be expressly set forth in this Lease, as basic
rent for the Premises ("Basic Rent") during the Term the annual amount
set forth on Exhibit "Basic Rent" attached hereto and hereby made a part
hereof.
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3.2. Basic Rent is payable in equal monthly installments of one-twelfth
of the annual amount in advance, on or before the first day of each
calendar month during the Term.
3.3. All amounts payable by Tenant to Landlord under the terms of this
Lease shall be paid to Landlord at 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, or to such other entity or place as Landlord
may from time to time designate by written notice to Tenant.
3.4. All amounts payable by Tenant pursuant to this Lease other than
Basic Rent are additional rent ("Additional Rent") (Basic Rent and
Additional Rent collectively being referred to as "Rent"), and Landlord
shall have the same rights and remedies for nonpayment of Additional
Rent as Landlord has for nonpayment of Basic Rent.
ARTICLE FOUR
Taxes; Utilities
4.1. Throughout the Term, Tenant shall pay to Landlord Tenant's
Proportionate Share of all Taxes (as those terms are defined below).
Tenant shall pay to Landlord, at the time when the monthly installment
of Basic Rent is payable, an amount equal to one-twelfth (1/12th) of the
estimated annual Taxes for each Tax Year during the Term as reasonably
estimated by Landlord. Tenant shall also pay to Landlord, within ten
(10) days after receipt of Landlord's notice, the amount by which
Tenant's Proportionate Share of the Taxes becoming due exceeds the
monthly payments on account thereof previously made by Tenant to
Landlord pursuant to the preceding sentence, which obligation of Tenant
shall survive the termination of this Lease. Any overpayment of Taxes
shall be credited against the next installments of Taxes due hereunder
or, at the option of Tenant, repaid to Tenant (net of any sums then past
due to Landlord under this Lease) upon the later of (i) within thirty
(30) days after the end of the month in which such overpayment occurs or
(ii) at the time such excess is refunded by any mortgagee escrowing
Taxes to Landlord, but in no event later than sixty (60) days after the
end of the month in which such overpayment occurs. The amounts paid by
Tenant pursuant to this Section 4.1 shall be used to pay the Taxes, but
such amounts shall not be deemed to be trust funds and no interest shall
be payable thereon. Taxes payable for the Tax Years in which the Term
begins and ends shall be prorated to correspond to that portion of such
Tax Years occurring within the Term (calculated on the basis of 365 day
Tax Years).
As used in this Lease, the term "Taxes" means all taxes, liens,
charges, imposts and burdens, general and special assessments of every
kind and nature, ordinary and extraordinary, assessed or imposed by any
governmental authority on or with respect to the Premises or the
Property, or both, which Landlord shall become obligated to pay because
of or in connection with the ownership, leasing and operating of the
Premises or the Property, or both, including any such Taxes which are
levied or assessed in lieu of all or any part of Taxes or an increase in
Taxes as provided in Section 4.2.
As used in this Lease, the term "Tax Year" shall mean each
calendar year, or such other period of twelve (12) months as hereafter
may be duly adopted by any applicable governmental
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or quasi-governmental body or authority or special service district
imposing Taxes on the Property or Premises, or both, as its fiscal year
for purposes of Taxes, occurring during the Term.
As used in this Lease, the term "Tenant's Proportionate Share"
means the ratio that the number of rentable square feet in the Premises
bears to the number of rentable square feet of building space on the
Property, as such number may change from time to time.
4.2. Nothing herein contained shall be interpreted as requiring Tenant
to pay any income, excess profits, corporate capital stock, franchise,
succession, transfer, gift, estate or inheritance tax imposed or
assessed upon Landlord, unless such tax or any similar tax is levied or
assessed in lieu of all or any part of any Taxes or an increase in any
Taxes. If under the requirements of any state or local laws with respect
to such new method of taxation, Tenant is prohibited from paying such
new tax which is in lieu of all or any part of any Taxes or any increase
in Taxes, Landlord may, at its election, require that Tenant enter into
a new lease for the balance of the Term, upon all of the same terms and
conditions as this Lease, but which provides for a net rent to Landlord
after the imposition of such tax, which is equal to the Rent payable
hereunder, or Landlord may elect to amend this Lease to achieve the same
economic result.
4.3. Notwithstanding the foregoing provisions of this Article Four,
Landlord from time to time during the Term may elect to waive the
requirement for payment of monthly installments on account of Taxes and,
in such case, Tenant shall pay the full amount of any unpaid Taxes
within fifteen (15) days after Tenant receives any xxxx for Taxes from
Landlord which, notwithstanding the foregoing, may be sent to Tenant at
any time and from time to time for any Tax Year. Such election by
Landlord shall not preclude Landlord from thereafter requiring Tenant to
commence paying monthly installments on account of Taxes as set forth
above in this Article Four.
4.4. Tenant shall purchase all metered utilities in Tenant's name and
shall pay, prior to any late payment or delinquency dates, all charges
for water, sewer, electricity, gas, fuel, heat, telephone, and other
utility services used on the Premises during the Term. Tenant shall pay
Landlord within fifteen (15) days after being billed therefor for any
utility services which are submetered to the Premises, and shall pay, as
a component of Operating Expenses, any for any utility services which
are provided to Tenant in common with another tenant or tenants in the
Building and are not submetered to the Premises. Landlord is not
required to furnish to Tenant any of the foregoing or other facilities
or services of any kind whatsoever. Landlord reserves the right, without
any liability to Tenant and without affecting Tenant's covenants and
obligations under this Lease, to stop service of the HVAC, electric,
sanitary, elevator (if any), or other systems serving the Premises, or
to stop any other services required by Landlord under this Lease,
whenever and for so long as may be necessary by reason of (i) accidents,
emergencies, strikes, or the making of repairs or changes which Landlord
in good xxxxx xxxxx necessary or (ii) any other cause beyond Landlord's
reasonable control. Further, it is also understood and agreed that
Landlord shall have no liability or responsibility for an interruption
or cessation of services to the Premises or to the Property that occurs
as a result of causes beyond Landlord's reasonable control. No such
interruption or cessation of service shall be deemed an eviction or
disturbance of Tenant's use and possession of the Premises or any part
thereof, or render
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Landlord liable to Tenant for damages, or relieve Tenant from
performance of Tenant's obligations under this Lease, including, but not
limited to, the obligation to pay Rent.
ARTICLE FIVE
Insurance and Restoration
5.1. Landlord shall maintain and keep in effect or cause to be
maintained and kept in effect such insurance as it deems commercially
reasonable, including, without limitation, (i) insurance against loss or
damage to the Premises or other buildings and improvements on the
Property owned by Landlord by fire and such other casualties as may be
included within fire and extended coverage insurance, in an amount equal
to the full replacement costs of such buildings and improvements, and
(ii) commercial general liability insurance against claims for bodily
injury, death and property damage in and about the Property owned by
Landlord. Landlord shall, prior to the Commencement Date, and at least
thirty (30) days prior to the expiration of each policy required under
this Article, deliver to Tenant a certificate evidencing the foregoing
insurance or renewal thereof, as the case may be. Each policy of
insurance required by this Section 5.1 shall shall contain the insurer's
waiver of subrogation against Tenant and shall be issued by an insurer
licensed to do business in Pennsylvania. Landlord shall use reasonable
efforts to cause such certificate to provide that it shall not be
canceled without at least thirty (30) days prior written notice to
Tenant.
5.2. Throughout the Term, Tenant shall pay to Landlord, as Additional
Rent and as part of Tenant's Proportionate Share of Operating Expenses
payable under Article Ten, Tenant's Proportionate Share of all premiums
to be paid by Landlord for all insurance maintained by Landlord with
respect to the Property (except for extraordinary insurance that may be
necessitated solely by the use of another portion of the Property by
another tenant).
5.3. Tenant, at Tenant's sole cost and expense, shall maintain and keep
in effect the following insurance coverages throughout the Term:
(a) insurance against liability for bodily injury (including
death) and property damage in or about the Property under a policy of commercial
general liability insurance and umbrella liability (if necessary), on an
occurrence basis (and including, without limitation, contractual
liability coverage for liabilities assumed by Tenant under this Lease)
and with such limits as to each as may be reasonably required by
Landlord from time to time, but not less than $5,000,000, combined
single limit each occurrence;
(b) business automobile liability insurance including owned,
hired and non-owned automobiles, on an occurrence basis and with such limits as
may be reasonably required by Landlord from time to time, but not less
than $5,000,000 combined single limit;
(c) causes of loss-special form insurance upon Tenant's personal
property, fixtures and leasehold improvements and items stored on the
Premises by Tenant for the full replacement costs thereof (subject,
however, to the deductible permitted under Section 5.4);
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(d) workers' compensation insurance in statutorily required
amounts and employers liability (with umbrella liability if necessary), with
such limits as may be reasonably required by Landlord from time to time, but
not less than $1,000,000 each accident/disease - policy limit/disease -
each employee; and
(e) warehouseman's legal liability insurance (with umbrella
liability, if necessary) in an amount to the greater of $5,000,000 or the full
replacement value of property of others in the care, custody, or control
of Tenant in, on, or about the Premises or the Property;
(f) loss-of-income insurance in an amount sufficient to assure
that Landlord shall recover the loss of Rent due and owing under this Lease
for a period of at least twelve (12) consecutive months; and
(g) such other policies as are (i) reasonably required by
Landlord or any mortgagee or (ii) required by insurers by reason of Tenant's
use of or activities at the Premises; provided that any such other policies are
customarily required by Landlord or mortgagees of tenants using
properties on the vicinity of the Property for purposes and scope of use
similar to the Tenant's use and scope of use of the Premises.
5.4. The policies of insurance required pursuant to Section 5.3 shall
name Landlord, and Landlord's mortgagees as additional insured parties,
as their interests may appear. Each policy of insurance required by
Section 5.3 shall provide that it shall not be canceled without at least
thirty (30) days prior written notice to Landlord and to any mortgagee
named in any endorsement thereto; shall contain the insurer's waiver of
subrogation against Landlord, shall be issued by an insurer licensed to
do business in Pennsylvania and reasonably acceptable to Landlord and
Landlord's mortgagee; and shall be in a form reasonably satisfactory to
Landlord. Each policy shall provide that no act or omission of Tenant
shall affect the obligation of the insurer to pay the full amount of any
loss sustained. The total amount of any deductible under any policy of
insurance which Tenant is required to maintain pursuant to Section 5.3
shall be no more than $25,000.00.
5.5. Prior to the Commencement Date, and at least thirty (30) days
prior to the expiration of each policy required under this Article, Tenant
shall deliver to Landlord certificates in form reasonably acceptable to
Landlord evidencing the foregoing insurance or renewal thereof, as the
case may be.
5.6. Each of the parties hereto hereby releases the other, and shall
obtain a waiver of subrogation from its insurer, to the extent of the
releasing party's required insurance coverage under sections 5.1 and 5.3
and all deductibles, from any and all liability for, or right of
recovery against, any loss or damage covered by such insurance which may
be inflicted upon the property of such party, or which may be claimed
for bodily injury or death, even if such claim, loss or damage shall be
brought about by the fault or negligence of the other party, its agents
or employees.
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In addition to the foregoing, Tenant hereby releases Landlord
from all claims for loss of profits or earnings which would be covered
under a policy of business interruption insurance in an amount
sufficient to reimburse Tenant for loss of earnings attributable to loss
of occupancy of the Premises for a period of at least one year, as a
result of perils included in a standard comprehensive fire or casualty
insurance policy or in a business or rent interruption insurance policy.
The foregoing release shall apply even if such fire or other casualty
shall have been caused by the fault or negligence of Landlord or anyone
for whom Landlord is responsible, and shall apply irrespective of
whether Tenant is insured for such loss.
5.7. Tenant will not do anything which would prevent Landlord from
procuring either fire insurance on the Premises or public liability
insurance with respect to the Property from companies and in a form
reasonably satisfactory to Landlord. If Tenant, by its use of the
Premises in a manner not permitted under this Lease, shall cause the
rate for any insurance maintained by Landlord to be increased, Tenant
will pay the amount of such increase as Additional Rent within ten (10)
days after being billed therefor.
5.8. (a) In the event of damage to or destruction of the Premises
caused by fire or other casualty, Landlord shall undertake to make repairs as
hereinafter provided, unless this Lease is terminated by Landlord or
Tenant. In the event that such damage or destruction is due to the gross
negligence or willful misconduct of Tenant, Tenant shall be responsible
for the first costs incurred for such repairs, up to the amount of the
deductible of Landlord's insurance, not to exceed $25,000.00.
(b) If (i) the damage is of such nature or extent, in
the reasonable opinion of Landlord's architect or contractor, such
opinion to be delivered to Tenant, in writing, within thirty (30) days
after the damage has occurred, that (A) more than one hundred eighty
(180) consecutive days, after commencement of the work, would be
required (with normal work crews and hours) to repair and restore the
part of the Premises which has been damaged, or (B) such restoration or
repairs require the expenditure of more than fifty percent (50%) of the
full replacement cost of the Premises prior to such casualty or (ii)
less than two (2) years remain on the Term, and Landlord reasonably
estimates that the restoration will take one hundred and twenty (120)
days or more after the commencement of work, Landlord shall so advise
Tenant promptly, and either party, for a period of thirty (30) days
thereafter, shall have the right to terminate this Lease by written
notice to the other, as of the date specified in such notice, which
termination date shall be no later than thirty (30) days after the date
of such notice.
5.9. In the event of such fire or other casualty, if this Lease is not
terminated pursuant to the terms of Section 5.8, and if this Lease is
then in full force and effect, Landlord shall proceed diligently to
restore the Premises to substantially the same size and configuration
and with substantially the same improvements existing prior to the
occurrence of the damage. Landlord shall not be obligated to repair or
restore any alterations, additions or fixtures which Tenant may have
installed after the date of the execution of this Lease (whether or not
Tenant has the right or the obligation to remove the same or is required
to leave the same on the Premises as of the expiration or earlier
termination of this Lease) and which are not covered by the insurance
required to be carried by Landlord under their Lease, unless Tenant, in
a manner reasonably
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satisfactory to Landlord, assures payment in full of such costs as may
be incurred by Landlord in connection therewith. If there be any such
alteration, fixtures or additions and Tenant does not assure payment of
the cost of restoration or repair as aforesaid, Landlord shall have the
right to determine the manner in which the Premises shall be restored,
as if such alterations, additions or fixtures had not then been made or
installed. The validity and effect of this Lease shall not be impaired
in any way by the failure of Landlord to complete repairs and
restoration of the Premises within one hundred eighty (180) consecutive
days after commencement of work, even if Landlord had in good faith
notified Tenant that the repair and restoration could be completed
within such period, provided that Landlord proceeds diligently with such
repair and restoration. Notwithstanding anything to the contrary to the
foregoing, if Landlord does not complete restoration of the Premises
within the Permitted Restoration Period (hereinafter defined), then, in
such event, Tenant may at any time prior to the substantial completion
of such work, terminate this Lease whereupon this Lease shall become
null and void as of the date of the casualty and neither party shall
have any further liability or obligation under this Lease. The term
"Permitted Restoration Period" means two hundred ten (210) days after
commencement of the work plus an additional period equal to the length
of any delays caused by circumstances beyond the reasonable control of
Landlord, not to exceed an additional forty-five (45) days.
5.10. In the case of damage to the Premises which is of a nature or
extent that all or a portion of the Premises is rendered untenantable
(including, without limitation, untenantability resulting from
inaccessibility) during the period of repair and restoration by
Landlord, the Rent otherwise payable by Tenant pursuant to this Lease
shall be abated for the period of such untenantability in such
proportion as the number of rentable square feet of the portion of the
Premises rendered untenantable bears to the total number of rentable
square feet in the Premises.
ARTICLE SIX
Rent Absolute and Net to Landlord
6.1. Landlord shall receive, except as otherwise expressly provided in
this Lease, all Basic Rent and all Additional Rent free from any
charges, taxes, assessments, fees, impositions, expenses, or deductions
of any and every kind or nature whatsoever, and, except as otherwise
expressly provided in this Lease, free of all obligation to insure or to
repair, restore, or maintain the Premises. Landlord shall not be
responsible for any costs, expenses, or charges of any kind or nature
respecting the Premises, except as otherwise expressly provided in this
Lease. Landlord shall not be required to render any services of any kind
to Tenant or to the Premises, except as otherwise expressly provided in
this Lease.
ARTICLE SEVEN
Signs; Alterations
7.1. Except for signs which are located wholly within the interior of
the Premises and which are not visible from the exterior of the
Premises, no signs shall be placed, erected, maintained or painted at
any place upon the Premises without the prior written consent of
Landlord, which consent shall not be unreasonably withheld or delayed.
All signs shall be maintained by Tenant in good condition during the
Term, and Tenant shall remove all signs at
10
the termination of this Lease and shall repair and restore any damage
caused by the installation or removal thereof.
7.2. Tenant may, from time to time, at its expense, make such
alterations, decorations, additions, or improvements to the Premises
(hereinafter collectively referred to as "Alterations") in and to the
Premises, excluding structural changes, as Tenant may reasonably
consider appropriate for the conduct of its business in the Premises;
provided, however, that except as provided in Section 7.5. of this
Lease, the written consent of the Landlord is first obtained. Landlord's
consent to Alterations shall not be unreasonably withheld or delayed,
provided that (a) the exterior of the improvements located on the
Property shall not be affected; (b) the Alterations are non-structural
and the structural integrity of the improvements located on the Property
shall not be adversely affected; (c) the Alterations are to the interior
of the Premises and no part of the outside of the Premises or the
Building shall be affected; (d) the proper functioning of the
mechanical, electrical, sanitary and other service systems of the
Property shall not be adversely affected and such systems shall not be
overburdened by their use by Tenant; (e) the Alternations do not have
any effect on other leased premises or tenants on the Property; (f)
Tenant shall have appropriate insurance coverage reasonably satisfactory
to Landlord regarding the performance and installation of the
Alterations; and (g) before proceeding with any Alterations, Tenant
shall submit for Landlord's approval plans and specifications for the
work to be done and Tenant shall not proceed with such work until it has
received such approval. Landlord's approval of such Alterations under
the immediately preceding sentence shall be deemed to have been given if
Landlord does not send notice of disapproval to Tenant within fifteen
(15) days after Landlord has received all of the plans and
specifications for the Alterations from Tenant. If the costs of the
alterations exceeds one hundred thousand dollars ($100,000.00), Tenant
shall obtain and deliver to Landlord (if so requested) either (i) a
performance bond and a labor and materials payment bond (issued by a
corporate surety licensed to do business in Pennsylvania) each in an
amount equal to one hundred fifteen percent (115%) of the estimated cost
of the Alterations and in form satisfactory to Landlord, or (ii) such
other security as shall be reasonably satisfactory to Landlord.
7.3. Tenant, at its expense, shall obtain all necessary governmental
permits and certificates for the commencement and prosecution of
Alterations and for the final approval thereof upon completion, and
shall cause the Alterations to be performed in compliance therewith and
in compliance with all applicable laws and requirements of public
authorities and with rules and regulations promulgated by Landlord in
Landlord's reasonable discretion or any other restrictions that Landlord
may, in the exercise of reasonable discretion, impose on the Alterations
provided, the same do not conflict with the terms of this Lease. Tenant
shall not commence any Alterations without having first demonstrated, to
Landlord's reasonable satisfaction, that all required permits and
certificates have been obtained. The Alterations shall be diligently
performed in a good and workmanlike manner, using new materials and
equipment at least equal in quality and class to the then quality and
class standards of the Premises and Building. Alterations shall be
performed by contractors first approved by Landlord (which approval
shall not be unreasonably withheld or delayed), and Tenant's agents,
contractors, workmen, mechanics, suppliers and invitees shall work in
harmony, and not interfere with, Landlord and its agents and contractors
(if any) or the Premises. Tenant shall, and hereby does,
11
indemnify, defend, and hold Landlord and Agent harmless from any and all
claims, damages or losses of any nature (including reasonable fees of
attorneys of Landlord's choosing), suffered by Landlord, as a result of,
or due to, or arising from, the performance of any Alterations by, or on
behalf of, Tenant. Tenant acknowledges that any Alterations commenced or
performed in violation of any provision of this Article Seven shall
cause Landlord irreparable injury, and Landlord shall have the right to
seek to enjoin any such violations by injunction or other equitable
relief. All Alterations except Tenant's trade fixtures (including its
machinery and conveyance equipment) shall be and remain part of the
Premises, and shall not be removed by Tenant, unless in connection with
Landlord's approval of the Alterations, Landlord requires Tenant to
remove them, at Tenant's sole expense, at the expiration or sooner
termination of the Term or if such Alterations are made pursuant to
Section 7.5 of this Lease unless Landlord requires Tenant to remove them
at Tenant's sole expense, at the expiration or sooner termination of the
Term by written notice to Tenant within sixty (60) days after their
completion; in performing such removal, Tenant shall restore the
Premises to its condition prior to such Alteration, shall repair any
damage caused by such removal, and shall otherwise comply with this
Article 7.
7.4. Tenant shall not permit any mechanics or materialmen's liens to
attach to the Premises, Tenant's leasehold estate, or the Property.
Tenant shall and hereby does defend, indemnify, and hold Landlord
harmless from and against any and all mechanics and other liens and
encumbrances filed in connection with Alterations or any other work,
labor, services, or materials done for or supplied to Tenant, or any
person claiming through or under Tenant including, without limitation,
security interests in any materials, fixtures or articles installed in
and constituting a part of the Premises and against all costs, expenses,
and liabilities (including reasonable fees of attorneys of Landlord's
choosing) incurred in connection with any such lien or encumbrance or
any action or proceeding brought thereon. Tenant, at its expense, shall
procure the satisfaction or discharge of record (which discharge of
record may be by posting of a bond or other security as required by law)
of all such liens and encumbrances within thirty (30) days after the
filing thereof. In the event Tenant has not so performed, Landlord may,
at its option, after ten (10) day's notice to Tenant, pay and discharge
such liens and Tenant shall be responsible to reimburse Landlord for all
costs and expenses incurred in connection therewith, together with
interest thereon at the rate set forth in Section 26.4 below, which
expenses shall include reasonable fees of attorneys of Landlord's
choosing, and any costs in posting bond to effect discharge or release
of the lien as an encumbrance against the Premises, Tenant's leasehold
estate, or the Property or any part thereof.
7.5. Notwithstanding anything to the contrary contained in this Article
Seven, Tenant may make Minor Alterations (as hereinafter defined)
without Landlord's prior consent provided, however, that:
(a) Tenant shall first have given Landlord at least
fifteen (15) days prior written notice of its intention to commence such
construction, which notice shall be accompanied by plans and specifications
for the work to be performed; and
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(b) Tenant shall comply with the other provisions of
Sections 7.2(a-f), 7.3 and 7.4 of this Lease.
For purposes of this Lease, the term "Minor Alterations" shall mean any
alteration complying with this Section 7.5 and involving a cost of less
than Fifty Thousand Dollars ($50,000.00), provided that, for the purpose
of determining such cost, multiple construction or alteration projects
shall be aggregated to the extent that they are related to each other,
whether undertaken simultaneously or sequentially.
7.6. Notwithstanding anything to the contrary contained in this Article
7, Landlord shall not unreasonably withhold or delay consent to the
following Alterations which may be partially structural in nature,
provided that such Alterations do not adversely effect the structural
integrity of the Building and Tenant shall comply with the other
provisions of Sections 7.2, 7.3 and 7.4 of this Lease: construction of a
cafeteria, extension of the mezzanine, enclosing of dock doors, removal
of the shipping office and creation of additional access ways through
the existing fire walls in the Premises.
ARTICLE EIGHT
Repairs
8.1. Except for the items specified in Section 8.3, Tenant at its own
cost and expense shall keep the interior of the Premises including,
without limitation, the lighting and other units, equipment and systems
in connection with the Premises, and all other parts of the Premises in
good order and condition and will make all necessary repairs and
replacements thereto, ordinary and extraordinary, foreseen and
unforeseen, and will make all necessary replacements thereto when
necessary. Tenant shall hire and pay for all security, cleaning,
custodial and janitorial services for the Premises. All glass, both
interior and exterior, is the sole responsibility of Tenant, and any
broken glass shall promptly be replaced by Tenant at Tenant's expense
with glass of the same kind (to the extent permitted by applicable
building codes), size and quality.
8.2. All repairs and replacements required of Tenant hereunder shall be
promptly made with new materials of like kind and quality and shall be
made subject to Tenant's compliance with Article Seven.
8.3. Landlord shall maintain in good order and repair at Landlord's
sole cost and expense the structure and roof of the Building. Landlord shall
maintain, repair and replace, or cause to be maintained, repaired and
replaced, the Common Areas, the exterior of the Building and the
plumbing, electrical, sprinkler and heating, ventilating and air
conditioning units, equipment and systems serving the Premises, so as to
keep the same in good order and repair; except as otherwise provided in
Sections 8.4 and 8.5 below, the costs of such maintenance, repair and
replacement shall be a part of the Operating Expenses as set forth in
Article Ten.
8.4. Notwithstanding the provisions of Section 8.3, but subject to the
limitations of this Section 8.5, Tenant shall be fully responsible for
the costs of maintaining, repairing and replacing any plumbing,
electrical, sprinkler and heating, ventilating and air conditioning
units,
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equipment and systems, or portions thereof, which exclusively serve the
Premises and no other portion of the Building.
8.5. Landlord agrees that repairs and replacements (as opposed to
maintenance) to the plumbing, electrical, sprinkler and heating,
ventilating and air conditioning units, equipment and systems shall not
be included in Operating Expenses, but shall be billed directly to
Tenant as such expenses occur. Tenant shall be responsible for (i)
Tenant's Proportionate Share of the costs of such repairs and
replacements to such systems which serve the Premise in common with one
or more other tenants, and (ii) the entire cost of such repairs and
replacements to such systems which serve only the Premises; provided,
however, that Tenant's obligation to reimburse Landlord for costs
pursuant to this Section 8.5 shall be limited, in any one calendar year
to (i) up to $15,000 for repairs and replacements to the heating,
ventilating and air conditioning units, equipment and systems and (ii)
up to $25,000 in the aggregate for repairs and replacements to the
plumbing, electrical and sprinkler systems serving the Premises.
8.6. The obligations of Landlord to maintain the items specified in
Section 8.3 and to bear certain costs pursuant to Sections 8.3 and 8.5
does not include any maintenance, repairs or replacements due to the
negligence or willful misconduct of Tenant, its employees, agents,
contractors, or invitees; or to alterations made by Tenant, all of which
shall be the sole responsibility of Tenant and shall be made by Tenant
at Tenant's sole expense and in compliance with Article Seven
ARTICLE NINE
Rules and Regulations; Compliance with Laws
9.1. Tenant, at all times during the Term hereof, and at its sole cost
and expense, agrees:
(a) to take such available legal action, if any, as may be
necessary to bring about the cessation of any work stoppage, picketing or labor
activity by Tenant's employees or against Tenant, which may materially
interfere with the operation of or access to the Property or any work
being performed or to be performed in or about the Property.
(b) to pay promptly and when due, all taxes, licenses, fees,
assessments or other charges levied or imposed upon the business of Tenant or
upon any fixtures, furnishings or equipment in, on or at the Premises; to pay
Landlord any use and occupancy tax which Landlord is legally obligated
to collect from Tenant;
(c) not to commit, permit or allow any waste, damage or nuisance
to or on the Property or any portion(s) thereof, or use, permit or allow the
plumbing facilities to be used for any purpose injurious to same or
dispose of any garbage or any other foreign substance therein, or place
a load on any floor in the Premises which would damage the floor or
install, attach, operate or maintain in the Premises any heavy equipment
or apparatus without the consent of Landlord, or install, operate or
maintain in the Premises any electrical equipment which would
14
overload the electrical system therein, or any part thereof, beyond its
capacity for proper and safe operation as reasonably determined by
Landlord;
(d) not to use, permit or allow the Premises to be used in any
manner which would be illegal or constitute a nuisance because of the emission
of noise, smoke, dust or odors or which could damage the Premises or the
Property, or be a nuisance or menace to or interfere with, any other
occupants or the public, or, pursuant to any applicable governmental law
or requirement, require any plan or bond to be furnished or require any
work to be performed to cure or correct any condition created by Tenant,
or be for a purpose not permitted by this Lease (and Landlord agrees to
cause a provision substantially similar to this Section 9.1(d) to be
included in every lease of space in the Building);
(e) to comply with the requirements of all suppliers of utility
services to the Premises and not to suffer or permit knowingly any act or
omission, the consequence of which could be to cause the interruption,
curtailment, limitation or cessation of any utility service to the
Property;
(f) not to assemble, package, label, store or discharge or
otherwise use any Hazardous Materials, flammable, explosive, poisonous or other
hazardous or dangerous substances on the Premises, except in accordance
with Sections 2.1(a) and 2.1(b) of this Lease; and
(g) not to block or obstruct or otherwise impede access by others
through or across the Common Areas.
9.2. Tenant, at its sole cost and expense, agrees to promptly comply
with all rules and regulations reasonably established by Landlord from
time to time with respect to the Property. Landlord agrees not to
enforce rules and regulations in a discriminatory manner. Such rules and
regulations shall not conflict with the provisions of this Lease. In the
event of any such conflict between the provisions of this Lease and such
rules and regulations, the provisions of this Lease shall prevail.
9.3. The term "Legal Requirements" as used in this Lease means all
present and future laws, orders, ordinances, rules, regulations and
requirements of any lawful authorities and the orders, rules and
regulations of the appropriate Board of Fire Underwriters or similar
body, and all requirements of insurance companies writing policies
covering the Premises. Tenant shall at Tenant's expense promptly comply
with all Legal Requirements relating to or applicable to the use or
occupancy of the Premises by Tenant (including, without limitation, the
Americans With Disabilities Act). Tenant shall pay all costs, expenses,
claims, and penalties, that may in any manner arise out of the failure
of Tenant to comply with the requirements of this section.
15
ARTICLE TEN
Operating Expenses
10.1. Tenant shall pay to Landlord, Tenant's Proportionate Share of all
expenses incurred or paid by Landlord in connection with the
maintenance, operation, repair, or replacement of (a) the Common Areas,
and (b) all other portions of the Property (not including the buildings
thereon, except as expressly set forth in this Section 10.1), even if
such portions of the Property (not including the buildings thereon,
except as expressly set forth in this Section 10.1) are reserved for the
exclusive use of others (unless those having such exclusive right of use
pay the entire expense of maintenance, operation, repair and replacement
of such portion of the Property reserved for such exclusive use). Such
expenses shall include, without limitation, (a) the costs of (1)
cleaning, maintenance, repair and replacement of the roads, sidewalks,
parking areas, and driveways on or adjoining the Property, including the
cost of snow and ice removal; (2) repaving and restriping paved portions
of the Property; (3) maintenance, repair and replacement of all
landscaped areas on the Property; (4) maintenance, operation, repair and
replacement of the lighting of the Property (not including the buildings
thereon); (5) repairs and replacements of the systems referred to in
Section 8.5. which serve the Premises in common with other tenants; (6)
utility services which are provided to Tenant in common with another
tenant or tenants in the Building and are not submetered to the
Premises; (7) insurance carried by Landlord; (8) compliance with Legal
Requirements affecting the Common Areas and all other portions of the
Property (not including the buildings thereon), and (b) a
management/administrative fee equal to two and twenty six hundredths
percent (2.26%) of the annual Basic Rent per year. All sums payable
under this Section 10.1 shall be referred to in this Lease collectively
as the "Operating Expenses."
The term "Operating Expenses" shall not include (1) the
salaries or benefits of any executive officers of Landlord; (2) any
repairs or replacements necessitated by the negligence or willful
misconduct of Landlord or any other tenant of the Property; (3) debt
service or refinancing costs; (4) legal fees related to negotiation or
enforcement of leases or any mortgages applicable to the Property; (5)
depreciation of the Building; (6) interest or penalties to Landlord's
late payment; (7) advertising costs; (8) leasing commissions and costs
reimbursed by other tenants or insurance proceeds; (9) the cost of
remediating any environmental condition existing as of the date of the
Lease; or (9) the salary of an offsite manager. In the event of any
capital expense incurred by Landlord to maintain, operate, repair or
replace the Common Areas and all other portions of the Property (not
including the buildings thereon, except as expressly set forth in
Section 10.1), the annual amortization of such expenditure (calculated
by dividing the amount of the expenditure over the useful life of the
improvement) shall be deemed an Operating Expense for each year of such
period.
10.2. Tenant shall pay to Landlord at the time when the monthly
installment of Basic Rent is payable, an amount equal to one-twelfth
(1/12th) of Tenant's Proportionate Share of the annual Operating
Expenses as reasonably estimated by Landlord. Such estimate shall
generally itemize the Operating Expenses and may be reasonably changed
by Landlord from time to time, whereupon the amounts payable hereunder
shall change (so that amounts payable by Tenant shall be sufficient to
pay in full Tenant's Proportionate Share of the annual Operating
Expenses, as
16
reasonably estimated by Landlord, over the balance of the calendar
year). Tenant shall also pay to Landlord within ten (10) days after a
statement is rendered for the applicable calendar year (the "Operating
Expense Statement") the amount by which Tenant's Proportionate Share of
the Operating Expenses for such calendar year exceeds the monthly
payments on account thereof previously made by Tenant. Any overpayment
of Operating Expenses shall be credited against the next installments of
Tenant's Proportionate Share of Operating Expenses due hereunder or, at
the option of Tenant, repaid to Tenant (net of any unpaid sums due to
Landlord under this Lease) within thirty (30) days after the end of the
month in which the Operating Statement is issued. The Operating Expense
Statement shall set forth the Operating Expenses for the prior year in
reasonable detail. Tenant shall have the right to review Landlord's
records relative to Operating Expenses during normal business hours at
the office at which Landlord maintains such records. If Tenant desires
to review Landlord's records, Tenant shall give Landlord notice thereof
within ninety (90) days following the furnishing of the Operating
Expense Statement to Tenant. Such review shall be completed by Tenant,
if at all, within sixty (60) days following the giving of such notice by
Tenant to Landlord. The amounts paid by Tenant pursuant to this Section
10.2 shall be used to pay the Operating Expenses, but such amounts shall
not be deemed to be trust funds and no interest shall be payable
thereon.
ARTICLE ELEVEN
Landlord's Right of Entry
11.1. Tenant shall permit Landlord and the authorized representatives
of Landlord and of any mortgagee or any prospective mortgagee, prospective
purchaser or tenant to enter the Premises at all reasonable times and
with a representative of Tenant upon two days prior notice (except no
notice shall be required in the event of emergency), for the purpose of
(a) inspecting or showing the same, or (b) performing any obligations of
Landlord under this Lease, or (c) correcting any defaults by Tenant
under this Lease. Landlord will exercise reasonable efforts to minimize
interference with the operations of Tenant, but shall not be liable for
inconvenience, annoyance, disturbance or other damage to Tenant by
reason of making any repair or by bringing or storing materials,
supplies, tools and equipment in the Premises during the performance of
any work (except for damage caused by Landlord's negligence or willful
misconduct), and, except as otherwise expressly provided for in this
Lease, the obligations of Tenant under this Lease shall not be thereby
affected in any manner whatsoever.
ARTICLE TWELVE
Indemnification
12.1. Subject to the provisions of Section 5.6, Tenant will indemnify
Landlord and save Landlord harmless from and against any and all claims,
actions, damages, liability and expense (including, without limitation,
reasonable fees of attorneys, investigators and experts) in connection
with loss of life, personal injury or damage to property caused to any
person in or about the Premises or arising out of the occupancy by
Tenant or use by Tenant of the Property or occasioned wholly or in part
(as to such part) by any act or omission of Tenant, its agents,
contractors, employees, licensees or invitees, or by reason of any
breach by Tenant of the terms and conditions of this Lease, unless such
loss, injury or damage was caused by the gross
17
negligence or willful misconduct of Landlord, its agents, employees,
licensees or invitees. This Section 12.1 shall survive the termination
of the Lease. 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.
ARTICLE THIRTEEN
Condemnation
13.1. (a) If the whole or any part of the Premises shall be taken under
the power of eminent domain, this Lease shall terminate as to the part
so taken on the date Tenant is required to yield possession thereof to
the condemning authority.
(b) (i) If the portion of the Premises so taken under
the power of eminent domain substantially impairs the beneficial and
economic use and occupancy of the remainder of the Premises for the use
specified in Section 2.1, either Landlord or Tenant may terminate this
Lease as of the date when Tenant is required to yield possession to the
condemning authority by giving notice of termination within forty-five
(45) days after the date of notice of such taking by Landlord to Tenant.
(ii) If any portion of the Property is so taken
thereby causing the use of the Premises specified in Section 2.1 to be
unlawful under applicable governmental requirements, and Landlord cannot
or does not deem it reasonably feasible to take action to make such use
lawful, then Landlord or Tenant may elect to terminate this Lease as of
the date on which possession thereof is required to be yielded to the
condemning authority, by giving notice of such election within
forty-five (45) days after the date of notice of such taking by Landlord
to Tenant.
(iii) If ten percent (10%) or more of the parking
spaces in the Schein Parking Area or Schein Trailer Area are taken
and Landlord does not replace such spaces at the Property, or if Tenant is
permanently deprived of access to the Premises as a result of any condemnation
of a portion of the Property, Tenant may elect to terminate this Lease as of
the date the condemned property is required to be yielded to the possession of
condemning authority by giving notice of termination within forty-five
(45) days after receiving notice of such taking from Landlord.
(c) If this Lease is not terminated under this Section
13.1, Landlord, subject to Section 5.9 of this Lease, shall make such
repairs and alterations as may be necessary in order to restore the part
of the Premises not taken to tenantable condition, (i) all Rent (other
than any Additional Rent due Landlord by reason of Tenant's failure to
perform any of its obligations hereunder) shall be reduced
proportionately as to the portion of the Premises so taken commencing on
the date the property taken is require to be yielded to the possession
of the condemning authority, and (ii) if the portion of the Premises
being repaired is rendered untenantable during the period of repair and
restoration by Landlord, the Rent otherwise payable by Tenant pursuant
to this Lease shall be abated for the period of such untenantability in
such
18
proportion as the number of rentable square feet of the portion of the
Premises rendered untenantable bears to the total number of rentable
square feet of the Premises.
(d) If any notice of termination is given pursuant to
this section, this Lease shall terminate on the date the property taken
is required to be yielded to the possession of the condemning authority
and all Rent shall be adjusted as of the date of such termination.
13.2. In the event of a condemnation affecting Tenant, Tenant shall
have the right to make a claim against the condemning authority for
relocation and moving expenses, and the unamortized cost of Alterations
made by Tenant; provided and to the extent, however, that such claims or
payments do not reduce the sums otherwise payable by the condemning
authority to Landlord. Except as aforesaid, Tenant hereby waives all
claims against Landlord and against the condemning authority, and Tenant
hereby assigns to Landlord all claims against the condemning authority,
including, without limitation, all claims for leasehold damages and
diminution in value of Tenant's leasehold interest.
ARTICLE FOURTEEN
Quiet Enjoyment
14.1. Landlord hereby covenants that Tenant, upon paying all Rent and
other charges herein provided for, and observing and keeping all
covenants, agreements and conditions of this Lease on its part to be
kept, shall quietly have and enjoy the Premises during the Term without
hindrance or molestation by anyone claiming by or through Landlord,
subject, however, to the exceptions, reservations and conditions of this
Lease.
ARTICLE FIFTEEN
Assignment and Subletting
15.1. (a) Tenant shall not, voluntarily, or by operation of law or
otherwise, assign, mortgage, pledge or encumber this Lease, or sublet
the whole or any part of the Premises, or permit the Premises to be used
or occupied by anyone other than Tenant, without the prior written
consent of Landlord, which consent shall not be unreasonably withheld.
(b) An assignment of this Lease shall include any
transfer of a majority of the voting stock of Tenant or to any other
change in voting control of Tenant (if Tenant is a corporation) in one
(1) or more transactions, or to a transfer of a majority of the general
partnership interests in Tenant or managerial control of Tenant (if
Tenant is a partnership), or to any comparable transaction involving any
other form of business entity, whether effectuated in one (1) or more
transactions; but, without Landlord's consent, Tenant shall have the
right to assign this Lease or sublet the Premises or any portion thereof
to a corporation into or with which Tenant is merged or consolidated, or
to which substantially all of Tenant's assets are transferred, or to any
corporation that controls or is controlled by Tenant, or is under common
control with Tenant, provided in any of such events, (i) the successor
to Tenant has a net worth (computed in accordance with generally
accepted accounting principles), at least equal to the greater of (A)
the net worth of Tenant and Guarantor immediately prior to such merger,
consolidation or transfer or
19
(B) the net worth of Tenant and Guarantor on the date of this Lease,
(ii) proof satisfactory to Landlord of such net worth shall have been
delivered to Landlord at least twenty (20) days prior to such
assignment, (iii) Guarantor (defined hereafter), if Landlord so
requires, provides a reaffirmation of the Guaranty (defined hereafter)
in form satisfactory to Landlord at least twenty (20) days prior to such
assignment, and (iv) Tenant complies with this Article in all other
respects in connection with such assignment.
15.2. In the event of any assignment of this Lease or a subletting of
all or any portion of the Premises, whether or not consent to such
assignment or subletting is required, Tenant nevertheless shall remain
liable for the performance of all of the terms, conditions and covenants
of this Lease and Guarantor shall remain liable for the performance of
all of the terms conditions and covenants of the Guaranty. In the event
of an assignment, Tenant shall require any assignee to execute and
deliver to Landlord an assumption of liability agreement in form
reasonably satisfactory to Landlord, including an assumption by the
assignee of all of the obligations of Tenant and the assignee's
ratification of and agreement to be bound by all of the provisions of
this Lease. Any subleases of the Premises, whether or not consent is
required to such sublease, shall be under and subject to the terms of
this Lease, and each sublease shall specifically so state. In addition
to all sums payable hereunder, Landlord shall be entitled to, and Tenant
shall promptly remit to Landlord, one hundred percent (100%) of any
consideration received by Tenant as a result of any assignment of this
Lease in excess of Tenant's reasonable costs of preparing the Premises
for the assignee, reasonable legal fees of preparing the assignment
documents, and reasonable brokerage commissions paid to an independent
third party broker in connection with such assignment, and one hundred
percent (100%) of any rent and other consideration received by Tenant as
a result of any subletting of the Premises in excess of the Basic Rent
and Tenant's reasonable costs of preparing the Premises (or a portion
thereof for the subtenant) the reasonable legal fees of preparing the
sublease, and reasonable brokerage commissions paid to an independent
third party broker in connection with such assignment.
Tenant's request for consent to any assignment or subletting
shall be given to Landlord at least twenty (20) days before the
execution of any assignment or sublease, shall be in writing and contain
the name, address, and description of the business of the proposed
assignee or subtenant, its most recent financial statement and other
evidence of financial responsibility, its intended use of Premises, the
terms and conditions of the proposed assignment or subletting, and a
copy of the proposed form of assignment or sublease. Tenant shall also
give Landlord at least twenty (20) days prior notice of any assignment
or sublease permitted under Section 15.1(b) together with all of the
information required by the immediately preceding sentence.
ARTICLE SIXTEEN
Subordination
16.1. This Lease and Tenant's rights hereunder shall be subject
and subordinate at all times in lien and priority to all mortgages now
or hereafter placed upon or affecting the Property, and to all renewals,
modifications, consolidations and extensions thereof, without the
necessity of any further instrument or act on the part of Tenant. Tenant
shall execute and deliver upon demand any further instrument or
instruments confirming the subordination of this Lease to the
20
lien of any such mortgages and any further instrument or instruments of
attornment that may be desired by any mortgagee. Notwithstanding the
foregoing, any mortgagee may at any time subordinate its mortgage to
this Lease, without Tenant's consent, by giving notice in writing to
Tenant, and thereupon this Lease shall be deemed prior to such mortgage
without regard to their respective dates of execution and delivery. The
foregoing provisions of this Section 16.1 are subject, however, to the
condition that the holder of any mortgage to which this Lease is
subordinate shall deliver to Tenant a subordination, non-disturbance and
attornment agreement in form reasonably satisfactory to Tenant and such
mortgagee. Provided such non-disturbance is afforded to Tenant, Tenant
hereby agrees to attorn (i) to any purchaser of any real estate of which
the Premises is a part of any foreclosure sale, execution sale or
private sale conducted pursuant to any mortgage, security instrument, or
lien encumbering or affecting the Premises, and (ii) to any grantee or
transferee designated in any deed given in lieu of foreclosure.
16.2. Tenant agrees that in the event the interest of Landlord becomes
vested in the holder of any mortgage, or in anyone claiming by, through
or under the holder of any mortgage, then such holder shall not be:
(a) liable for any act or omission of any prior landlord
(including Landlord herein); or
(b) subject to any offsets or defenses which Tenant may have
against any prior landlord (including Landlord herein); or
(c) required to make or complete any improvements; or
(d) bound by any rent which Tenant may have paid for more than
the current month to any landlord (including Landlord herein); or
(e) bound by any amendment or modification of any provisions
hereof, or any cancellation or surrender of this Lease, after the mortgage is
placed of record unless such amendment, modification, cancellation or
surrender shall have been approved in writing by the holder of such
mortgage.
ARTICLE SEVENTEEN
Estoppel Certificates; Financials
17.1. Each party, at any time and from time to time and within ten (10)
days after written request by the other, shall execute, acknowledge and
deliver to the other a written instrument certifying:
(a) whether this Lease has been modified or amended, and if so,
the date, substance and manner of such modification or amendment;
(b) the validity and force and effect of this Lease;
21
(c) the existence of any default hereunder, and if so, the
nature, scope and extent thereof;
(d) the existence of any offsets, counterclaims or defenses
thereto on the part of the certifying party, and if so, the nature, scope and
extent thereof;
(e) the commencement and expiration dates of the Term;
(f) the dates to which Rent has been paid;
(g) any other matters as may be reasonably requested.
Any such certificate may be relied upon by the recipient party
and any other person, firm or corporation to whom the same may be
exhibited or delivered, and the party executing such certificate shall
be bound by the contents of the same.
17.2. Tenant agrees to furnish to Landlord at any time, but not more
frequently than twice per year, within ten (10) days after request by
Landlord, a copy of its financial statements for its last full fiscal
year, including a balance sheet and a profit and loss statement for such
year, and for the year in which the request is made through the end of
the last fiscal period of Tenant for such year. Tenant agrees to furnish
to Landlord at any time, but not more frequently than twice per year,
within ten (10) days after request by Landlord, a copy of the
Guarantor's financial statements for its last full fiscal year,
including a balance sheet and a profit and loss statement for such year,
and for the year in which the request is made through the end of the
last fiscal period of Guarantor for such year.
ARTICLE EIGHTEEN
Curing Tenant's Defaults
18.1. If Tenant shall be in default in the performance of any of its
obligations under this Lease, Landlord, without any obligation to do so,
in addition to any other rights it may have in law or equity, may elect
to cure such default on behalf of Tenant after providing Tenant written
notice thereof (which notice shall, without obligating Landlord in any
manner, expressly reiterate Landlord's cure right contained herein), and
such time to cure as Landlord determines is reasonable under the
circumstances; provided, however, that no notice or opportunity to cure
shall be required in case of emergency. Tenant shall reimburse Landlord
upon demand for any sums paid or costs reasonably incurred by Landlord
in curing such default, including interest thereon from the respective
dates of Landlord's making the payments and incurring such costs, which
sums and costs together with interest thereon shall be deemed Additional
Rent payable within ten (10) days after Tenant receives a xxxx therefor
(which xxxx shall set forth in reasonable detail the costs for which
compensation is claimed).
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ARTICLE NINETEEN
Surrender
19.1. At the expiration or earlier termination of the Term, Tenant
shall promptly yield up vacant, broom clean and neat, and in the same
condition, order and repair in which they are required to be kept
throughout the Term, the Premises and all improvements, alterations and
additions thereto, ordinary wear and tear and damage by fire or other
casualty excepted.
19.2. All movable non-structural partitions, business and trade
fixtures, machinery and equipment, communications equipment and office
equipment, whether or not attached to, or built into, the Premises,
which are installed in the Premises by, or for the account of, Tenant
without expense to Landlord and that can be removed without structural
damage to the Premises or Property, and all furniture, furnishings and
other articles of movable personal property owned by Tenant, or property
of others in the care, custody and control of Tenant (collectively, the
"Tenant's Property") shall be and shall remain the property of Tenant.
At or before the expiration of the Term or the date of any earlier
termination, Tenant, at its expense, shall remove from the Premises all
of Tenant's Property (except such items thereof as Landlord shall have
expressly permitted, in writing, to remain, which property shall become
the property of Landlord), and Tenant shall repair any damage to the
Premises or Property resulting from any installation or removal of
Tenant's Property. Any items of Tenant's Property that shall remain in
the Premises or Property after the expiration date of the Term, or
following an earlier termination date, may, at the option of Landlord,
be deemed to have been abandoned, and in such case, such items may be
retained by Landlord as its property or be disposed of by Landlord, in
Landlord's sole and absolute discretion and without accountability, at
Tenant's expense. Notwithstanding the foregoing, if Tenant is in default
under the terms of this Lease, it may remove Tenant's Property from the
Premises only upon the express written direction of Landlord. Landlord
may not require Tenant to remove Alterations at the expiration or
earlier termination of the Term unless Tenant was notified by Landlord
of the requirement for such removal at the time specified in Section
7.3.
19.3. If Tenant, or any person claiming through Tenant, shall continue
to occupy the Premises after the expiration or earlier termination of
the term or any renewal thereof, such occupancy shall be deemed to be
under a month-to-month tenancy under the same terms and conditions set
forth in this Lease; except, however, that the Basic Rent during such
continued occupancy shall be equal to one hundred fifty percent (150%)
of the Basic Rent in effect immediately prior to such holdover. Anything
to the contrary notwithstanding, any holding over by Tenant without
Landlord's prior written consent shall constitute an event of default
hereunder and shall be subject to all the remedies set forth in Article
Twenty hereof.
ARTICLE TWENTY
Default-Remedies
20.1. It shall be an event of default under this Lease:
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(a) If Tenant does not pay in full any and all installments
of Basic Rent or Additional Rent or any other charges or payments whether or not
herein defined as Rent, within seven (7) days after notice that the same
is due, provided, however that Tenant shall not be entitled to any such
notice or grace period more than twice in any twelve (12) month period;
or
(b) If Tenant violates or fails to perform or otherwise
breaches any agreement, term, covenant or condition herein contained (other than
requiring the payment of money) and such failure continues for more than
thirty (30) days after written notice thereof to Tenant unless the
failure is of such a nature as to reasonably require more than thirty
(30) days to correct or cure, in which case, provided that Tenant using
its best efforts, has commenced to cure the default within such thirty
(30) day period and thereafter continues to use Tenant's best efforts to
cure the default, the period shall be extended for a reasonable period
of time, not to exceed ninety (90) days after Landlord's notice under
this Section 20.1(b), for Tenant, using its best efforts, to cure the
default provided, however that Tenant shall not be entitled to any such
notice or grace period more than twice in any twelve (12) month period;
or
(c) If Tenant voluntarily abandons the Premises for a period
greater than ninety (90) days or removes or attempts to remove Tenant's goods or
property therefrom other than in the ordinary course of business; or
(d) If Guarantor violates or fails to perform or otherwise
breaches any agreement, term, covenant or condition contained in the Guaranty;
or
(e) If Tenant or Guarantor 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 Guarantor, 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 or Guarantor's assets is commenced, or if a significant portion
of the real or personal property of Tenant or Guarantor shall be levied
upon by any sheriff, marshal or constable; provided, however, that any
proceeding brought by anyone other than the parties to this Lease under
any bankruptcy, reorganization arrangement, insolvency, readjustment,
receivership or similar law shall not constitute an event of default
until such proceeding, decree judgment or order has continued unstayed
for more than ninety (90) consecutive days.
20.2. Anything to the contrary contained in this Lease notwithstanding,
it shall not be a default under this Lease for Tenant to remove from all
or a portion of the Premises to another location operated by Tenant (or
any affiliate of Tenant) any or all of the equipment, trade fixtures,
inventory and alterations owned by it, in connection with a transfer,
closure, relocation or modification of any portion of its operations,
provided that, prior to such removal, Tenant provides reasonably
adequate assurance to Landlord that it intends to promptly reestablish
significant business operations at the Premises and, within 90 days of
the completion of any such removal, actually reestablishes significant
business operations at the Premises.
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20.3. Upon the occurrence of an event of default, Landlord shall have
the following remedies and rights:
(a) To terminate this Lease by giving written notice
thereof to Tenant, and upon the giving of such notice the Term, and all
rights of Tenant hereunder shall terminate, without affecting Tenant's
liability for all sums due under this Lease;
(b) To reenter the Premises, together with all additions,
alterations and improvements, and, at the option of Landlord, remove all
persons and all or any property therefrom, without being liable for
prosecution or damages therefor, and repossess and enjoy the Premises;
(c) At any time after repossession of the Premises, whether or
not the
Lease shall have been terminated by Landlord, Landlord may make such
reasonable alterations and repairs as may be necessary in order to relet
the Premises and relet the Premises or any part or parts thereof, either
in Landlord's name or otherwise, for a term or terms which may, at
Landlord's option, be less than or exceed the period which would
otherwise have constituted the balance of the Term of this Lease and at
such rent or rents and upon such other terms and conditions as Landlord
may decide. If the rentals received from such reletting during any month
after deducting all costs incurred by Landlord in exercising its rights
hereunder shall be less than that to be paid during that month by
Tenant, Tenant shall pay any such deficiency to Landlord, provided such
reletting is a bona fide arms length transaction. Such deficiency shall
be calculated and paid monthly.
(d) To declare due and payable all unpaid Basic Rent for
the unexpired period of the Term (and also all Additional Rent, as reasonably
estimated by Landlord,) as if by the terms of this Lease the same were
due and payable in advance, all discounted to present worth using a rate
equal to the annual rate for United States obligations of equal duration
to the period remaining in the term of the Lease, and upon payment of
the same, Tenant shall be entitled to continue in possession pursuant to
the terms of this Lease;
(e) In the event of the termination of this Lease, or
repossession of the Premises, Landlord shall be entitled to recover, in
addition to any and all sums and damages for violation of Tenant's obligations
hereunder in existence at the time of such termination, damages for Tenant's
default in an amount equal to the amount of Basic Rent reserved for the
balance of the Term of this Lease (plus Landlord's reasonable estimate
of Additional Rent as well as all other charges, payments, costs and
expenses herein agreed to be paid by Tenant), all discounted to present
worth using a rate equal to the annual rate for United States
obligations of equal duration to the period remaining in the term of the
Lease, less the fair rental value of the Premises for the remainder of
the Term, also discounted to present value at such rate, all of which
shall be immediately due and payable from Tenant to Landlord; and
(f) TENANT, IN CONSIDERATION OF THE EXECUTION OF THIS LEASE
BY LANDLORD AND FOR THE COVENANTS AND AGREEMENTS ON THE PART OF LANDLORD HEREIN
CONTAINED, AND FULLY COMPREHENDING THE
25
RELINQUISHMENT OF CERTAIN RIGHTS INCLUDING RIGHTS OF PREJUDGMENT NOTICE
AND HEARING AND OF POST-JUDGMENT/PRE-EXECUTION NOTICE AND HEARING, AND
AFTER DEFAULT BY TENANT UNDER THIS LEASE AND TEN (10) DAYS' PRIOR NOTICE
FROM LANDLORD OF LANDLORD'S INTENT TO CONFESS JUDGMENT IN EJECTMENT (IN
ADDITION TO ANY OTHER NOTICE REQUIRED, IF ANY, UNDER SECTION 20.1(a) OR
20.1(b) OF THIS LEASE, HEREBY EXPRESSLY AUTHORIZES ANY ATTORNEY OF ANY
COURT OF RECORD TO ACCEPT SERVICE OF PROCESS FOR, TO APPEAR FOR, AND TO
CONFESS JUDGMENT IN EJECTMENT AGAINST TENANT IN ANY AND ALL ACTIONS
BROUGHT HEREUNDER BY LANDLORD AGAINST TENANT TO RECOVER POSSESSION FROM
TIME TO TIME OF THE PREMISES (AND TENANT AGREES THAT UPON THE ENTRY OF
EACH JUDGMENT FOR SUCH POSSESSION A WRIT OF POSSESSION OR OTHER
APPROPRIATE PROCESS MAY ISSUE FORTHWITH). THE RIGHT TO CONFESS JUDGMENT
IN EJECTMENT SHALL NOT BE EXHAUSTED BY THE SINGLE OR MULTIPLE USE
THEREOF. TENANT CONFIRMS THAT THIS IS A COMMERCIAL LEASE, THAT TENANT
WAS REPRESENTED BY COUNSEL IN TENANT'S NEGOTIATION AND EXECUTION OF THIS
LEASE, AND THAT TENANT KNOWINGLY, WILLINGLY, FREELY AND VOLUNTARILY
EXECUTED THIS LEASE WITH THIS SECTION 20.3.(F) AS A PART THEREOF.
20.4. Any payment of Basic Rent, Additional Rent, or any other charge
under this Lease (including amounts due by acceleration) which is not
paid within ten (10) days after the same is due, shall bear interest
from the date due until the date paid by Tenant. In addition, Tenant
shall pay to Landlord an administrative charge of three percent (3%) of
any amount owed to Landlord pursuant to this Lease which is not paid
within ten (10) days of the date which is set forth in this Lease if a
date is specified as the due date for such payment, or, if a date is not
specified, within ten (10) days of the mailing of a xxxx therefor by
Landlord. The three percent (3%) administrative charge paid by Tenant
shall be applied against the amount of interest which accrues on any
delinquent installment, so that once Tenant has paid the administrative
charge, no further interest shall accrue on any delinquent installment
until the amount of interest due exceeds the amount of the
administrative charge. 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.
20.5. No waiver by either Landlord or Tenant of any breach by the other
of any obligations, agreements or covenants herein shall be a waiver of
any subsequent breach or of any obligation, agreement or covenant, nor
shall any forbearance by either Landlord or Tenant to seek a remedy for
any breach by the other be a waiver of any rights and remedies with
respect to such or any subsequent breach.
20.6. No right or remedy herein conferred upon or reserved to Landlord
or Tenant is intended to be exclusive of any other right or remedy
provided herein or by law, but each shall be cumulative and in addition
to every other right or remedy given herein or now or hereafter existing
at law or in equity or by statute.
26
20.7. In addition to, and in no way limiting the other remedies set
forth herein, Landlord and Tenant agree that if Tenant ever becomes the
subject of a voluntary or involuntary bankruptcy, reorganization,
composition, or other similar type proceeding under the federal
bankruptcy laws, as now enacted or hereinafter amended, then:
(a) "Adequate assurance of future performance" by Tenant and/or
any assignee of Tenant pursuant to Bankruptcy Code Section 365 will include
(but not be limited to) payment of an additional/new security deposit in
the amount of two (2) months the then-current Base Rent payable
hereunder.
(b) Any person or entity to which this Lease is assigned
pursuant to the provisions of the Bankruptcy Code, shall be deemed, without
further act or deed, to have assumed all of the obligations of Tenant arising
under this Lease on and after the effective date of such assignment. Any such
assignee shall, upon demand by landlord, execute and deliver to landlord
an instrument confirming such assumption of liability.
(c) Notwithstanding anything in this Lease to the contrary, all
amounts payable by Tenant to or on behalf of Landlord under this Lease, whether
or not expressly denominated as "Rent", shall constitute "rent" for the
purposes of Section 502(b)(6) of the Bankruptcy Code.
(d) If this Lease is assigned to any person or entity pursuant
to the provisions of the Bankruptcy Code, any and all monies or other
considerations payable or otherwise to be delivered to Landlord or Agent
(including Basic Rent, Additional Rent and other amounts hereunder),
shall be the remain the exclusive property of Landlord and shall not
constitute property of Tenant or of the bankruptcy estate of Tenant. Any
and all monies or other considerations constituting Landlord's property
under the preceding sentence not paid or delivered to landlord or Agent
shall be held in trust by Tenant or Tenant's bankruptcy estate for the
benefit of Landlord and shall be promptly paid to or turned over the
Landlord.
20.8. If Landlord shall be in default in the performance of any of its
obligations under this Lease for thirty (30) consecutive days after
written notice from Tenant (unless such default is not susceptible of
cure within thirty (30) days in which event Landlord shall failed to
commence curing such default within such thirty (30) day period and to
diligently prosecute such cure to completion), then Tenant shall notify
Landlord in writing if Tenant intends to cure such default on behalf of
Landlord. If, ten (10) days following such second notice Landlord has
failed to commence curing such default, Tenant shall have the right to
cure the default on behalf of Landlord. Landlord shall reimburse Tenant
for all reasonable out-of-pocket costs incurred by Tenant in curing such
default within ten (10) days after Landlord receives a xxxx therefor
(which xxxx shall set forth in reasonable detail the costs for which
compensation is claimed). Notwithstanding the foregoing, Tenant shall
not have any right in exercising its remedies under the preceding
sentence to make any repairs or modifications to areas outside the
Premises, except those solely serving the Premises.
27
20.9. Notwithstanding anything to the contrary contained in Section
20.8, in the event that Landlord fails to promptly perform of any of its
obligations under this Lease and, as a result of such failure, Tenant
cannot reasonably conduct normal business activities under the
circumstances, Tenant shall have the right, following notice to Landlord
(which, for purposes of this Section 20.8 only, may be by telephone
only), to commence curing such failure on behalf of Landlord, and
Landlord shall reimburse Tenant for all reasonable out-of-pocket costs
incurred by Tenant in curing such default within twenty (20) days after
Landlord receives a xxxx therefor (which xxxx shall set forth in
reasonable detail the costs for which compensation is claimed).
ARTICLE TWENTY-ONE
Condition of Title and of Premises
21.1. Tenant represents that the Property and the Premises, the street
or streets, sidewalks, parking areas, curbs and access ways adjoining
them, any surface and subsurface conditions thereof, and the present
uses and non-uses thereof, have been examined by Tenant, and Tenant
accepts them AS-IS, WHERE-IS in the condition or state in which they now
are, or any of them now is, without relying on any representation of
Landlord, subject, however, to the Landlord's obligations under Section
1.2 and with respect to the items specified at Section 8.3. This Lease
is made under and subject to all liens, encumbrances, easements,
covenants, conditions, restrictions and other documents or matters now
or hereafter of record.
ARTICLE TWENTY-TWO
Interruption of Services
22.1. Except as specifically provided in this Lease, in case Landlord
is prevented or delayed by Uncontrollable Delay in furnishing any service
required to be provided by Landlord under this Lease, Landlord shall not
be liable to Tenant therefor, nor shall the same give rise to a claim in
Tenant's favor that such absence of services constitutes actual or
constructive, total or partial eviction or renders the Premises
untenantable.
ARTICLE TWENTY-THREE
Waiver of Jury Trial
23.1. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any
matter arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the
Premises, or any claim of injury or damage, or any other remedy with
respect thereto.
ARTICLE TWENTY-FOUR
Waiver of Notices
24.1. Except for notices expressly provided for in this Lease, Tenant
hereby waives all notices of any nature, including, without limitation,
all notice requirements of the Pennsylvania Landlord and Tenant Act.
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ARTICLE TWENTY-FIVE
Enforcement Expenses
25.1. In the event any action or proceeding is brought by Landlord or
Tenant to enforce any of the provisions of this Lease, the prevailing
party shall be entitled to receive from the other all costs and
expenses, including reasonable legal fees, incurred in connection
therewith. In addition, each party shall pay upon demand all of the
other party's reasonable costs and expenses, including reasonable legal
fees, incurred in any litigation in which the defaulting party causes
the other, without the other's fault, to become involved. Tenant shall
pay Landlord's reasonable attorneys' fees (not including in-house
counsel) incurred in connection with Tenant's request for Landlord's
consent under provisions of this Lease governing assignment and
subletting, or in connection with any other act which Tenant proposes to
do and which requires Landlord's consent.
ARTICLE TWENTY-SIX
Interpretation
26.1. The captions in this Lease are for convenience only and are not a
part of this Lease and do not in any way define, limit, describe or
amplify the terms and provisions of this Lease or the scope or intention
thereof.
26.2. This Lease represents the entire agreement between the parties
hereto and there are no collateral or oral agreements or understandings
between Landlord and Tenant with respect to the Premises or the
Property. No rights, easements or licenses are acquired in the Property
or any land adjacent to the Property by Tenant by implication or
otherwise. Tenant agrees, within twenty (20) days after request by
Landlord, to make such changes to this Lease as are required by any
institutional mortgagee, provided such changes do not increase any
amounts payable by Tenant, impede Tenant's access to Premises, decrease
the size of or change the location of the Premises, or otherwise
materially and adversely affect Tenant's rights and obligations under
this Lease. This Lease shall not be modified in any manner except by an
instrument in writing executed by the parties. The masculine (or neuter)
pronoun, singular number, shall include the masculine, feminine and
neuter genders and the singular and plural number. Tenant shall not
record or file this Lease (or any memorandum hereof) in the public
records of any county or state.
26.3. Time is of the essence of this Agreement.
26.4. This Lease shall be governed by the laws of the Commonwealth of
Pennsylvania.
26.5. 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.
26.6. Wherever interest is required to be paid hereunder, such interest
shall be at the rate of four percent (4%) per annum over the rate
announced publicly by First National Bank of Chicago, or its successors,
from time to time as its prime rate.
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ARTICLE TWENTY-SEVEN
Common Areas
27.1. All Common Areas, including but not limited to roads, driveways,
sidewalks, loading facilities, rail lines and other common facilities as
may be provided, from time to time are for the general nonexclusive use,
in common, of Landlord and all owners and tenants of the Property, their
employees and guests, and at all times, are subject to the sole and
exclusive control of the Landlord and the owners of other portions of
the Property. Landlord and the owners of other portions of the Property
shall have the right, from time to time, to establish, modify and
enforce rules and regulations regarding the Common Areas, to alter,
modify or otherwise change the Common Areas, to grant exclusive rights
to use portions of the Common Areas and to do such other acts, in and to
all Common Areas, as in Landlord's and such owners' sole judgment, shall
be desirable or advisable to improve or maintain them; provided,
however, that in the exercise of the rights set forth in this sentence,
parking comparable to Schein Parking Area and Schein Trailer Area, and
access to and from the Premises shall be maintained and Tenant's right
to use and occupy the Premises in accordance with the terms of this
Lease shall not be materially and adversely affected. Landlord and the
other owners of portions of the Property shall have the right to
construct additional buildings and other improvements on the Property
for such purposes as Landlord and such owners may deem appropriate and
to alter, modify or otherwise change the Property, provided, however,
that parking comparable to Schein Parking and the Schein Trailer Area
and access to and from the Premises is maintained and Tenant's right to
use and occupy the Premises in accordance with the terms of this Lease
shall not be materially and adversely affected.
ARTICLE TWENTY-EIGHT
Definitions
28.1. The word "Landlord" is used herein to include the Landlord named
above as well as its successors and assigns, each of which shall have
the same rights, remedies, powers, authorities and privileges as it
would have had it originally signed this Lease as Landlord. Any such
person, whether or not named herein, shall have no liability hereunder
after such person ceases to hold title to the Premises except for
obligations which may have theretofore accrued. Neither Landlord nor any
partner or other principal of Landlord nor any owner of the Premises,
whether disclosed or undisclosed, shall have any personal liability with
respect to any of the provisions of this Lease or the Premises, and if
Landlord is in breach or default with respect to Landlord's obligations
under this Lease or otherwise, Tenant shall look solely to Landlord's
interest in the Premises, or if the Premises have been sold, solely to
the net proceeds to the Landlord from such sale (net of customary
closing costs, broker's commissions, and apportionments), for the
satisfaction of any claim, recovery, or judgment against Landlord; the
liability of Landlord shall be limited to Landlord's interest in the
Premises, or if the Premises have been sold, solely to the net proceeds
to the Landlord from such sale (net of customary closing costs, broker's
commissions, and apportionments).
30
28.2. The word "Tenant" is used herein to include the Tenant named
above as well as its successors and assigns, each of which shall be under the
same obligations, liabilities and disabilities and each of which shall
have the same rights, privileges and powers as it would have possessed
had it originally signed this Lease as Tenant. Each and every of the
persons named above as Tenant shall be bound formally and severally by
the terms, covenants and agreements contained herein. However, no such
rights, privileges or power shall inure to the benefit of any assignee
of Tenant immediate or remote, unless the assignment to such assignee is
permitted or has been approved in writing by Landlord.
28.3. The word "mortgage" is used herein to include any lien or
encumbrance on the Premises or the Property or on any part of or
interest in or appurtenance to any of the foregoing. The word
"mortgagee" is used herein to include the holder of any mortgage.
Wherever any right is given to a mortgagee, that right may be exercised
on behalf of such mortgagee by any representative or servicing agent of
such mortgagee.
28.4. The word "person" is used herein to include a natural person, a
partnership, a corporation, an association, and any other form of
business association or entity.
ARTICLE TWENTY-NINE
Notices
29.1. All notices, demands, requests, consents, certificates, waivers
and other communications required or permitted hereunder from either
party to the other shall be in writing and sent by recognized overnight
delivery service providing receipted delivery, such as Federal Express,
and shall be deemed delivered and received one (1) business day after
delivery to such overnight delivery service. All such notices shall be
addressed as follows:
If to Landlord:
First Industrial
Harrisburg, L.P.
c/o First Industrial
Realty Trust, Inc.
0000 Xxxxx Xxxxx - Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxxxx
and
First Industrial Harrisburg, L.P.
c/o First Industrial
Realty Trust, Inc.
000 Xxxxx Xxxxxx Xxxxx - Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxxx
and
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F. Xxxxxxx Xxxxxxx, Esquire
Saul, Ewing, Xxxxxx & Xxxx LLP
Centre Square West
0000 Xxxxxx Xxxxxx - 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
If to Tenant:
Xxxxx Xxxxxx, Inc.
000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx, Esquire
Xxxxxx X.Xx Xxxx, Senior Vice President
and
Xxxxxx Xxxxxx Fallau & Klimpl, LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. XxXxxxx, Esquire
Either party may at any time, in the manner set forth for giving notices
to the other, specify a different address to which notices to it shall
be sent.
ARTICLE THIRTY
Brokers
30.1. Landlord and Tenant each for itself, hereby covenants, warrants
and represents to the other that neither Landlord nor Tenant has had any
conversations or negotiations with any broker, except Xxxxxxx &
Wakefield of Long Island, Inc., concerning the leasing of the Premises
by Tenant. Landlord shall be solely responsible for paying the
commissions of Xxxxxxx & Xxxxxxxxx of Long Island, Inc. Each party
agrees to and hereby does indemnify, defend and hold the other harmless
from and against any brokerage commissions or finder's fees or claims
therefor by a party (other than Xxxxxxx & Wakefield of Long Island, Inc.
for whose commission Landlord is responsible) claiming to have dealt
with the indemnifying party and all costs, expenses, and liabilities in
connection therewith, including, without limitation, reasonable
attorney's fees and expenses, for any breach of the foregoing. The
foregoing indemnification shall survive the termination of the Lease for
any reason.
ARTICLE THIRTY-ONE
Environmental Matters
31.1. For purposes of this Lease, the term "Hazardous Materials" shall
mean (1) radon gas, asbestos, petroleum, petroleum products and
byproducts, urea formaldehyde foam insulation, transformers or other
equipment which contain dielectric fluid containing levels of
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polychlorinated biphenyls in excess of federal, state or local safety
guidelines, whichever are more stringent; (2) any substance, gas,
material or chemical which is defined as or included in the definition
of "hazardous substances", "toxic substances", "hazardous materials",
"hazardous wastes" or words of similar import under any federal, state
or local statute, law, or ordinance applicable to the Premises or under
the regulations adopted or guidelines promulgated pursuant thereto,
including, but not limited to, the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sections
9061 et seq. ("CERCLA"); the Hazardous Materials Transportation Act, as
amended 49 U.S.C. Sections 1801, et seq.; the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. Sections 6901, et seq.; and (3) any
other chemical, material, gas, or substance, exposure to or release of
which is prohibited, limited or regulated by any governmental or
quasi-governmental entity or authority that has jurisdiction over the
Premises or the operations or activity at the Premises.
31.2. For purposes of this Lease, the term "Environmental Laws" means
all applicable statutes, regulations, rules, ordinances, codes,
licenses, permits, orders, approvals, authorizations, agreements and
similar items, of or with any and all governmental agencies,
departments, commissions, boards, bureaus or instrumentalities of the
United States, Pennsylvania and political subdivisions having
jurisdiction over the Premises or Property, and all applicable judicial
and administrative and regulatory decrees, judgments and orders relating
to the protection of the environment, including, without limitation, all
requirements pertaining to reporting, licensing, permitting,
investigation and remediation of emissions, discharges, Releases or
threatened releases of Hazardous Materials into the air, surface water,
groundwater or land, or relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling
of Hazardous Materials or relating to storage tanks.
31.3. For purposes of this Lease, the term "Release" means any
releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, disposing or dumping into
soil, surface waters, ground waters, land, stream sediments, surface or
subsurface strata, ambient air and any environmental medium comprising
or proximate to the Premises or Property.
31.4. For purposes of this Lease, the term "Threat of Release" means a
substantial likelihood of a Release which requires action to prevent or
mitigate damage to the soil, surface waters, ground waters, land, stream
sediments, surface or subsurface strata, ambient air and any
environmental medium comprising or proximate to the Premises or Property
which may result from such Release.
31.5. Tenant shall not store. place, use, generate, transport or
dispose of any Hazardous Materials at, on, or in the Premises or Property
(except to the extent permitted under Sections 2.1(a) and 9.1(f)), shall
comply with Environmental Laws, and promptly shall take all remedial
action, at Tenant's sole cost and expense, necessary or desirable to
remedy, clean-up and remove the presence of Hazardous Materials
resulting from Tenant's violation of the prohibitions set forth in this
section or Tenant's failure to comply with Environmental Laws. Any such
remedial action shall be performed by an independent reputable
environmental remediation engineer, in strict compliance with the
requirements of Environmental Laws, in accordance with
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environmental remediation industry practices, in accordance with the
then current and evolving best available environmental remediation
technology, and in accordance with a remediation plan approved by
Landlord. Such remediation shall comply with the terms of Sections 7.2,
7.3 and 7.4 of this Lease. Tenant shall immediately notify Landlord of
any Release or Threat of Release caused by Tenant or of which Tenant has
knowledge. Tenant shall promptly provide to Landlord copies of all
correspondence relating to any Release, Threat of Release or remediation
or other, environmental response action under this Section 31.5.
Landlord shall have the right, but not the obligation, from time to time
during the performance of any remediation work and following the
completion of the same, to inspect the Premises and all information and
documentation relating thereto.
31.6. Tenant hereby agrees to indemnify, protect, defend and hold
harmless Landlord, and Landlord's successors and assigns, officers,
directors, shareholders, partners and employees ("Indemnified Landlord
Parties") (with counsel reasonably acceptable to the Indemnified
Landlord Parties) from and against, and shall pay and reimburse the
Indemnified Landlord Parties for, any and all losses, claims,
liabilities, damages, injunctive relief, injuries to persons, property
or natural resources, fines, penalties, costs, expenses, including,
without limitation, attorneys' fees, expenditures, expenses and court
costs, actions, administrative investigations and/or proceedings, and
causes of action and sums paid in settlement of litigation (it being
understood that so long as Tenant is defending the Indemnified Landlord
Party and is not in default of its obligations hereunder, no such
litigation (other than relating to governmental fines and penalties or
criminal actions) shall be settled without the reasonable consent of
Tenant), arising directly or indirectly, in whole or in part, out of any
Release, Threat of Release or any discharge, threatened discharge,
deposit, presence, treatment, transport, handling or disposal of any
Hazardous Materials on, at, under, in or from the Property caused or
generated by Tenant, its employees, agents or contractors or in the air,
land surface, subsurface strata, soil, surface water, groundwater, or
soil vapor on, under, in or from any part of the Property caused or
generated by Tenant, its employees, agents or contractors, or resulting
from the migration or the alleged or potential migration of Hazardous
Materials from the Property caused or generated by Tenant, its
employees, agents or contractors. The foregoing indemnity shall include,
without limitation, (1) all costs at law or in equity of inspection,
clean-up, removal, remediation, testing, monitoring and restoration of
any kind, and disposal of any Hazardous Materials, (2) all costs of
determining whether the Premises and Property are in compliance, and
causing the Premises and Property to be or become in compliance, with
all applicable Environmental Laws, (3) all costs and liabilities
associated with claims for damages to, and remedial action with respect
to, persons, property or natural resources, (4) all fines and other
penalties associated with claims of noncompliance with any Environmental
Laws, and (5) all reasonable consultants' and attorneys' fees and costs.
The foregoing indemnity shall survive any assignment or other transfer
by any or all of the Indemnified Landlord Parties of their respective
interests in the Premises and shall remain in full force and effect
regardless of whether the indemnified costs and liabilities are incurred
by the Indemnified Landlord Parties in question before or after
termination of the Lease.
31.7. Landlord hereby agrees to indemnify, protect, defend and hold
harmless Tenant, and Tenant's successors and assigns, officers,
directors, shareholders, partners and employees ("Indemnified Tenant
Parties") (with counsel reasonably acceptable to the Indemnified Tenant
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Parties) from and against, and shall pay and reimburse the Indemnified
Tenant Parties for, any and all losses, claims, liabilities, damages,
injunctive relief, injuries to persons, property or natural resources,
fines, penalties, costs, expenses, including, without limitation,
attorneys' fees, expenditures, expenses and court costs, actions,
administrative investigations and/or proceedings, and causes of action
and sums paid in settlement of litigation (it being understood that so
long as Landlord is defending the Indemnified Tenant Party and is not in
default of its obligations hereunder, no such litigation (other than
relating to governmental fines and penalties or criminal actions) shall
be settled without the reasonable consent of Landlord), arising directly
or indirectly, in whole or in part, out of any Release, Threat of
Release or any discharge, threatened discharge, deposit, presence,
treatment, transport, handling or disposal of any Hazardous Materials
on, at, under, in or from the Property caused or generated by Landlord,
its employees, agents or contractors or in the air, land surface,
subsurface strata, soil, surface water, groundwater, or soil vapor on,
under, in or from any part of the Property caused or generated by
Landlord, its employees, agents or contractors, or resulting from the
migration or the alleged or potential migration of Hazardous Materials
from the Property caused or generated by Landlord, its employees, agents
or contractors. The foregoing indemnity shall include, without
limitation, (1) all costs at law or in equity of inspection, clean-up,
removal, remediation, testing, monitoring and restoration of any kind,
and disposal of any Hazardous Materials, (2) all costs of determining
whether the Premises and Property are in compliance, and causing the
Premises and Property to be or become in compliance, with all applicable
Environmental Laws, (3) all costs and liabilities associated with claims
for damages to, and remedial action with respect to, persons, property
or natural resources, (4) all fines and other penalties associated with
claims of noncompliance with any Environmental Laws, and (5) all
reasonable consultants' and attorneys' fees and costs. The foregoing
indemnity shall survive any assignment or other transfer by any or all
of the Indemnified Tenant Parties of their respective interests in the
Premises and shall remain in full force and effect regardless of whether
the indemnified costs and liabilities are incurred by the Indemnified
Tenant Parties in question before or after termination of the Lease.
31.8. Landlord agrees that it shall be solely responsible for complying
with Environmental Laws as they pertain to all underground storage tanks
on the Property (the "Tanks"). Landlord shall by April 15, 1998 remove
in accordance with applicable Environmental Laws the two (2) gasoline
pumps now located in the Common Areas immediately adjacent to the
Premises (the "Pumps"), at its cost and expense. Landlord shall
indemnify, defend and hold harmless Tenant from and against any claims,
actions, losses, costs, liabilities, damages or expenses relating to the
Tanks and Pumps, unless such claims, actions, losses, costs,
liabilities, damages or expenses are attributable to the actions of
Tenant, its employees, agents or contractors.
ARTICLE THIRTY-TWO
Subdivision or other Development of the Property
32.1. (a) Subject to the provisions of Article 35 hereof, Tenant
acknowledges and agrees that Landlord and other owners of the Property
have the right to develop, alter, modify or otherwise change the
Property in such manner and for such purposes as they may deem
appropriate provided that Tenant's rights to use and occupy the Premises
and to use the Schein
35
Parking Area and Schein Trailer Area (or parking facilities reasonably
comparable to the Schein Parking Area and Schein Trailer Area) in
accordance with the terms of this Lease are not materially and adversely
affected. Without limiting the generality of the foregoing, Tenant
acknowledges and agrees that at any time and from time to time as
Landlord and other owners of the Property shall deem necessary or
appropriate, they, or any of them shall have the right to subdivide the
Property, undertake development of the Property, or establish any
easement, dedication, or right of way over the Property. Tenant shall,
at the request of Landlord or any governmental authority, public utility
or private utility operator, and at Landlord's cost, promptly execute,
acknowledge and deliver such documents as Landlord, any governmental
authority, public utility or private utility may deem necessary or
desirable in connection with such subdivision, development, easement,
dedication or right-of-way. Landlord shall give Tenant notice of any
covenants, conditions or restrictions imposed upon the Property.
(b) Tenant acknowledges and agrees that Landlord's activities
pursuant to Section 32.1(a) may change the description of the Property and the
denominator in the calculating Tenant's Operating Expense Proportionate
Share. Landlord shall give Tenant notice of all such changes, and such
changes shall become effective upon at least five (5) days' prior notice
by Landlord to Tenant.
ARTICLE THIRTY-THREE
Options to Renew
33.1. Tenant is granted four (4) options (each, a "Renewal Option") to
extend the Term for three (3) consecutive additional periods of five (5)
years each and, immediately following such three (3) periods, one final
period of four (4) years, eleven (11) months (each period, a "Renewal
Term").
33.2. Each Renewal Option is granted subject to the following
conditions:
(a) Each Renewal Option must be exercised, if at all, by
notice from Tenant to Landlord given on or before the two hundred seventieth
(270th) day prior to the end of the then expiring Term or Renewal Term, as the
case may be, time being of the essence.
(b) In the case of the second, third and fourth Renewal Terms,
Tenant shall have first exercised its option with respect to all prior Renewal
Terms.
(c) At the time of exercise of each Renewal Option and the
commencement of each Renewal Term, this Lease must be in full force and
effect, and there shall not exist any default by Tenant under this Lease.
33.3. All terms, provisions and conditions contained in this Lease
shall continue to apply during the Renewal Terms, except that:
(a) The Basic Rent for each Renewal Term shall be in the amount
set forth on Exhibit "Renewal Term Rent."
33.4. There shall be no further right of renewal after the expiration
of the Renewal Terms set forth in this Article Thirty-Three.
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ARTICLE XXXIV
Right of First Offer
34.1. (a) Subject to the conditions set forth in this Article XXXIV, in
the event that during the First Offer Period (as hereinafter defined)
all or any portion of the First Offer Space (as hereinafter defined)
becomes available for lease from time to time, Landlord shall offer to
lease the First Offer Space to Tenant prior to leasing the same to
another person or entity. The term "First Offer Period" shall mean the
period from the Commencement Date through the date which is two (2)
years prior to the expiration of the Term, taking into account any
Renewal Terms, if the Renewal Options have been exercised by Tenant. The
"First Offer Space" consists of all space in the Building which shall
have, subsequent to the date of this Lease, been first leased to a
tenant other than X. X. Xxxxxxxxx Company and then become vacant.
(b) Landlord shall make such offer by notice in
writing to Tenant (the "First Offer Notice"). The First Offer Notice
shall specify which portion of the First Offer Space Landlord proposes
to lease to Tenant and shall also set forth the following terms and
conditions for Tenant's lease of the First Offer Space, all of which
shall be determined by Landlord in its sole discretion:
(i) Basic Rent and Additional Rent;
(ii) any rent credits, abatements, construction allowances
and other concessions or economic terms;
(iii) the commencement date for Tenant's lease of the
First Offer Space; and
(iv) the expiration date(s) of the term of the lease of the
First Offer Space, which may be before or after the expiration date of the
Term of this Lease. If the expiration date of the Term as to the First Offer
Space would occur after the expiration date of the Term of this Lease as
to the balance of the Premises, this Lease shall continue in full force
and effect as to the First Offer Space until the expiration date of the
Term as to the First Offer Space.
(c) (i) Tenant shall have the right (the "Right of
First Offer") to lease all (but not less than all) of the portion of the
First Offer Space specified in Landlord's First Offer Notice upon the
terms and conditions set forth in Landlord's First Offer Notice and in
this Section. Tenant shall exercise its Right of First Offer only by
delivering written notice to Landlord within thirty (30) days after
Tenant's receipt of the First Offer Notice, time being of the essence.
At the time of the exercise of the Right of First Offer, and the
commencement of this
37
Lease as it pertains to the First Offer Space, this Lease must be in
full force and effect and there shall not exist any default by Tenant
under this Lease..
(ii) In the event Tenant does not exercise the
Right of First Offer with respect to any First Offer Space offered to
Tenant under this Section 35.1, Landlord may thereafter lease such First
Offer Space to any person or entity on any terms and conditions that
Landlord deems acceptable, subject, however, to the restriction that
that annual basic rent on a per rentable square foot basis (taking into
consideration all allowances, abatements and other economic factors)
under the terms of the lease which Landlord enters into with a person or
entity other than Tenant shall not be lower than the basic rent offered
Tenant in the First Offer Notice. Notwithstanding the foregoing, if
Landlord from time to time desires to lease the First Offer Space on
terms which would violate the foregoing restriction (the "Revised
Terms"), Landlord may lease the First Offer Space on the Revised Terms
so long as Landlord, by notice to Tenant (the "Revised First Offer
Notice"), shall first offer to lease the First Offer Space to Tenant on
the Revised Terms. Tenant shall exercise its Right of First Offer on the
Revised Terms by delivering written notice to Landlord within seven (7)
days after receipt of the Revised First Offer Notice, time being of the
essence. If Landlord does not receive Tenant's notice of its exercise of
its Right of First Offer on the Revised Terms within such seven (7) day
period, Landlord may lease the First Offer Space on any terms and
conditions, but again subject to the restriction against entering into a
lease at lower basic rent than that offered Tenant in the Revised First
Offer Notice.
(d) Any First Offer Space as to which Tenant exercises
its Right of First Offer shall become part of the Premises, and, except
as otherwise set forth in the First Offer Notice, all of the terms and
conditions applicable to the Premises shall also apply to such space.
(e) Promptly following Tenant's exercise of any Right
of First Offer, Landlord and Tenant shall execute an amendment to this
Lease setting forth the Basic Rent and the other terms of Tenant's lease
of such First Offer Space.
ARTICLE THIRTY-FIVE
No Construction Area
Notwithstanding anything in this Lease to the contrary,
Landlord agrees that it shall not construct an addition to the Building,
or other improvements, in the area designated as "No Construction Area"
on the Exhibit "Site Plan", without Tenant's prior written consent.
ARTICLE THIRTY-SIX
Guaranty
This Lease shall be guaranteed by Xxxxx Xxxxxx, Inc. (the
"Guarantor") pursuant to a guaranty in the form of the Guaranty of Lease
attached hereto as Exhibit "Guaranty", (the "Guaranty") which shall be
delivered to Landlord simultaneously with delivery of this Lease.
38
ARTICLE THIRTY-SEVEN
Signs of Other Tenants of the Building
Anything to the contrary contained in this Lease
notwithstanding, Landlord shall not permit any other tenant of the
Building, as the same may be expanded, altered or reconfigured, to erect
a pylon, monument or any other sign on the Property or on any adjacent
property owned by Landlord or an affiliate of Landlord (unless the
Tenant leases space in such adjacent property in the building to which
the pylon, monument or other sign is related), without Tenant's prior
written consent; provided, however, that all other tenants of the
Building may be afforded space on Tenant's pylon sign which space shall
be beneath Tenant's space thereupon and shall be of a size equal to (x)
the surface area on the pylon sign which is usable for signage
multiplied by (y) such tenant's Proportionate Share. Additionally,
Landlord will not permit another tenant of the Building nor any other
person (including Landlord) to erect, install, affix or add any sign to
the roof, exterior walls, exterior windows or any other exterior surface
of the Building, provided that Landlord may permit other tenants of the
Building to have signs at access points into their respective premises.
ARTICLE THIRTY-EIGHT
Additional Reimbursements
38.1. Landlord has agreed to sell to Tenant, and Tenant has agreed to
purchase from Landlord, certain racking and conveyor equipment located
at the Property (the "Equipment"). The Equipment is being sold "as-is,
where is," without representation or warranty by Landlord. In
consideration of the Equipment, Tenant agrees to pay Landlord sixty (60)
consecutive monthly payments (the "Equipment Payments") of $2,844.76
each, commencing on the first day of March 1998 and thereafter on the
first day of each of the next fifty-nine months of the Term. Such
payments are Additional Rent hereunder. In the event that this Lease
shall be terminated prior to payment in full of the foregoing payments,
for any reason, Tenant shall, at the time of termination of this Lease,
pay to Landlord in full all remaining unpaid Equipment Payments.
38.2. At Tenant's request, Landlord has agreed to install certain new
heating equipment at the Premises during preparation of the Premises by
Landlord (the "Heating Equipment"). The Heating Equipment consists of
the new gas fired air rotation heating units for the Premises. In
consideration of the installation of the Heating Equipment, Tenant
agrees to pay Landlord monthly payments ("Heating Equipment Payments")
of $1,770.55 each, commencing on the first day of March 1998 and
thereafter on the first day of each of the next two hundred forty (240)
months of the Terms or until expiration of the Term, whichever shall
occur first; provided, however, that if the Term shall be terminated
prior to its scheduled expiration date pursuant to Article 1.1, as the
same may have been extended pursuant to Article 33, by reason of default
by Tenant hereunder, Tenant shall, at the time of termination of this
Lease, pay to Landlord the sum of the Heating Equipment Payments which
Tenant would have paid Landlord during the remainder of the Term had the
Term continued to its scheduled expiration date.
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IN WITNESS WHEREOF, and in consideration of the mutual entry
into this Lease and for other good and valuable consideration, and
intending to be legally bound, each party hereto has caused this
agreement to be duly executed under seal.
Landlord:
FIRST INDUSTRIAL PENNSYLVANIA, L.P., a
Delaware limited partnership, by its
sole general partner, First Industrial
Pennsylvania Corporation, a Maryland
corporation
Witness:
______________________________ By: ____________________________________
Print Name: ______________________________
Print Title: ______________________________
Tenant:
Attest: XXXXX XXXXXX (LANCASTER, PA.) INC., a
Pennsylvania corporation
______________________________ By: ____________________________________
Secretary President
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