Exhibit 10.1
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LEASE AGREEMENT
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THIS LEASE ("Lease") is made and effective on this 24th day of
January, 2007, by and between JNL REAL ESTATE, LLC, a Pennsylvania limited
liability company ("JNL"); EASTWOOD ASSOCIATES, LLC, a Pennsylvania limited
liability company ("Eastwood"); and HBL HOLDINGS, LLC, a Pennsylvania limited
liability company ("HBL"), collectively trading and doing business as 000
XXXXXXXXX XXXXXXXXX JOINT VENTURE ("Lessor"), the fee simple owners of the real
estate located at 000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx,
Xxxxxxxxxxxx 00000, Berks County, Pennsylvania.
A N D
CIMNET, INC. , a Delaware business corporation with a principal place of
business at 000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxxxx
00000 ("Lessee") (hereinafter sometimes collectively referred to as the
"Parties").
AGREEMENT
The Parties, INTENDING TO BE LEGALLY BOUND, for good and
adequate consideration, the receipt of which is hereby acknowledged, agree as
follows:
1. Lease of Premises. Lessor does hereby demise and let to Lessee
all that certain portion of the real estate located at 000 Xxxxxxxxx Xxxxxxxxx,
Xxxxxxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxxxx 00000, consisting of a portion of the
approximately twenty thousand eight hundred (20,800) square foot two-story
building and parking area associated therewith ("Premises" or "Property"), to be
used and occupied solely for the operation of Lessee's business. The leased
space of Lessee shall consist of that portion of the Premises located on the
first (1st) and second (2nd) floor of the Premises, plus parking area associated
therewith.
2. Base Rent. Minimum base rental for the Premises is Four
Hundred Seventy Thousand Eighty and 00/100 Dollars ($470,080.00) for the first
one (1) year after execution of this Lease, payable in monthly installments, in
advance, without demand, during the Term, as defined herein, in the sum of
Thirty Nine Thousand One Hundred Seventy Three and 33/100 Dollars ($39,173.33),
on the first day of each month ("Base Rent"). The aforementioned rental amounts
for the Premises are based on an amount of Twenty Two and 60/100 Dollars
($22.60) per square foot. Each year after 2007, on February 1, the Base Rent
shall automatically increase by two percent (2%). In the event Lessee holds over
and wrongfully continues possession of the Premises after the expiration of the
Term (hereinafter defined) or any extension of the Term, Lessee will be deemed
to be occupying the Premises at sufferance for a month-to-month tenancy, without
limitation on any of Lessor's rights or remedies thereunder, subject to all the
terms and conditions of this Lease, except that the Base Rent and additional
rent shall be increased to twice the Base Rent and additional rent payable for
the last month or quarter of the Term, respectively, prior to the holdover.
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3. Additional Rent.
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a. Damages for Default. Lessee agrees to pay as rent, in
addition to the minimum rental, any and all sums which may become due by reason
of the failure of Lessee to comply with all of the covenants of this Lease and
any and all damages, costs and expenses which Lessor may suffer or incur by
reason of any default of Lessee or failure on Lessee's part to comply with the
covenants of this Lease, and each of them, and also any and all damages to the
Premises caused by any act or neglect of Lessee.
b. Operation/Additional Expenses. Lessee agrees to pay
any and all other operating and additional expenses incorporated herein by
reference, including but not limited to heating, cooling, water, sewer,
electric, telephone, television cable, and any and all other utilities, relating
to the Premises, and notwithstanding any other provision of this Lease, the
responsibility for all costs relating to the operation, maintenance and
ownership of the Premises shall be borne by Lessee, except as specifically
allocated to the Lessor in Paragraph three (3) of this Lease and elsewhere.
c. Payment and Adjustment of Additional Rent. Lessor has
included the costs associated with real estate taxes, fire insurance,
condominium fees, trash removal, lawn care and shrubbery, janitorial services,
alarm system, service agreements for HVAC, Pest control, Elevator and Sprinkler
systems and snow and ice removal in the Base Rent for the first one year after
the execution of this Lease. After the first year of the Lease and after each
year thereafter, Lessor will have the option to adjust the Base Rent above and
beyond the Base Rent adjustment percentage as described in Section 2 of this
Agreement to include any increase over the previous year's fees for the above
mentioned costs (real estate taxes, fire insurance, condominium fees, trash
removal, lawn care and shrubbery, janitorial services, alarm system, service
agreements for HVAC, Pest control, Elevator and Sprinkler systems and snow and
ice removal) included in the Base Rent or any additional rent, operating
expenses, fees or charges of any kind, which are subject of this Lease or any
new amounts of additional rent, operating expenses, fees or charges of any kind.
These new amounts or additional amounts shall be calculated by Lessor and
delivered in writing to Lessee. Within thirty (30) days after delivery of such
statement from Lessor, Lessee shall pay for all charges shown to be due by such
statement. If for any reason, Lessee does not receive such a statement from
Lessor, this shall not constitute a waiver of Lessor's right to collect all
amounts due.
d. Security Deposit/First Month's Rent/Last Month's
Rent. Lessee shall pay a security deposit to Lessor in the amount of Thirty Nine
Thousand One Hundred Seventy Three and 33/100 Dollars ($39,173.33) upon
execution of this Lease. Additionally, upon execution of this Lease, Lessee
shall pay to Lessor an aggregate amount of Thirty Nine Thousand One Hundred
Seventy Three and 33/100 Dollars ($39,173.33) constituting the first month's
Base Rent.
4. Term. The term of this Lease commences on February 1, 2007,
and ends seven (7) years thereafter, or upon the occurrence of an event causing
the termination of this Lease as set forth herein.
Place of Payment. All rent shall be payable without prior
notice or demand to 000 Xxxxxxxxx Xxxxxxxxx Joint Venture at X.X. Xxx 000,
Xxxxxxx, XX 00000, or at such other place as Lessor may from time to time
designate by notice in writing to Lessee.
5. Affirmative Covenants of Lessee. Lessee covenants and agrees
that it will without demand:
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a. Payment of Rent. Pay the rent and all other charges
reserved as rent in this Lease at the times and at the place that the same are
payable, without failure; and, if Lessor shall at any time or times accept said
rent or rent charges after the same shall have become delinquent, such
acceptance shall not excuse delay upon subsequent occasions, or constitute or be
construed as a waiver of any of Lessor's rights. If Lessee fails to pay the rent
on the day when the same shall become due and payable, and such failure shall
continue for a period of ten (10) days, Lessee shall pay to Lessor a service
charge at the rate of one percent (1%) per month on the amount of such rent or
any additional rent, or all of them, for each month or portion of a month that
the same shall remain unpaid; provided, however, that such service charge shall
in no event be less than Fifty and 00/100 Dollars ($50.00) for any month or
portion of a month that basic rent or any additional rent shall remain unpaid.
Such service charge shall be imposed for the purposes of defraying
administrative expenses of Lessor and is not intended as a penalty against
Lessee. Lessee agrees that any charge or payment herein reserved, included, or
agreed to be treated or collected as rent and/or any other charges, expenses or
costs herein agreed to be paid by Lessee may be proceeded for and recovered by
Lessor by legal process in the same manner as rent due and in arrears, with
Lessee being solely responsible to reimburse to Lessor any and all amounts
Lessor incurs related to collection of Base Rent or additional rent, including
but not limited to reasonable attorneys' fees, costs and expenses.
b. Cleaning, Repairing, Etc. Keep the Premises clean and
free from all ashes, dirt, and other refuse matter; replace all glass windows,
including plate glass windows, doors, etc., broken and repair all damage to
plumbing in the Premises and to the Premises in general, which damage resulted
from the intentional or negligent acts of Lessee or its agents, employees,
guests and invitees; keep the same in good order and repair as they are now,
reasonable wear and tear and damage by accidental fire or other casualty not
occurring through negligence of Lessee or those employed by or acting for Lessee
alone excepted; provided that such repairs must be performed by persons who
Lessor has approved prior to the time that such repairs are made. Lessee agrees
to surrender the Premises in the same condition in which Lessee has herein
agreed to keep the same during the continuance of this Lease, except as to any
renovations as agreed to by Lessor in accordance the Lease. In the event Lessee
fails to perform its obligations to repair, replace or maintain, after thirty
(30) days' written notice from Lessor of the need for such repair, replacement
or maintenance, Lessor may enter the Premises and make such repairs or
replacements or perform such maintenance or cause such repairs or replacement to
be made or maintenance to be performed at its own expense. Upon Lessor's notice
to Lessee of the performance and cost of any maintenance, repairs or
replacement, Lessee shall immediately reimburse Lessor for any reasonable costs
incurred by Lessor, together with interest on any such sum with interest at the
rate of seven percent (7%) per annum until the date paid by Lessee to Lessor.
c. Drain Pipes/Equipment. Lessee shall keep all drain
pipes and other equipment free of grease and other waste products. Lessee shall
install and/or maintain grease traps and other appurtenances necessary to keep
the drains free of grease and other waste. Lessee shall be responsible for all
repair and maintenance to all drains.
d. Requirements of Public Authorities. Comply with any
requirements of any of the constituted public authorities, and with the terms of
any State or Federal statute or local ordinance or regulation applicable to
Lessee or his use of the Premises and save Lessor harmless from penalties,
fines, costs or damages resulting from failure to do so.
e. Fire. Use every reasonable precaution against fire.
Lessee shall be responsible for installing fire extinguishers on the Premises
and shall have such extinguishers or those extinguishers currently on the
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Premises maintained on a yearly basis at Lessee's expense. Lessee shall provide
a written certification to Lessor from an inspection agency that such
extinguishers have been inspected.
f. Surrender of Possession. Peaceably deliver up and
surrender possession of the Premises to Lessor at the expiration or sooner
termination of this Lease, promptly delivering to Lessor at the above mentioned
location all keys for the Premises. During the final ninety (90) days of the
Term, Lessor, Lessor's agents and any persons authorized by Lessor shall have
the right to enter the Premises at all reasonable times to inspect and show the
Premises to prospective tenants or purchasers.
g. Notice of Fire, Etc. Give to Lessor prompt written
notice of any accident, fire, or damage occurring on or to the Premises.
h. Indemnification. Indemnify and save Lessor harmless
from any and all loss occasioned by Lessee's breach of any of the covenants,
terms and conditions of this Lease, or caused by its family, guests, invitees,
visitors, agents and employees.
i. Insurance. Lessee shall insure and keep insured the
Premises with insurance companies reasonably acceptable to Lessor, and shall
procure, pay for, and deliver to Lessor the policies of insurance covering the
following:
Lessee shall during the full term of this
Lease and any renewal hereof, at the expense of Lessee, (1) insure the fixtures
and equipment belonging to Lessor and Lessee against loss or damage by fire, (2)
carry public liability insurance providing for a minimum of One Million Dollars
($1,000,000.00) per person, Two Million Dollars ($2,000,000.00) per accident,
and Five Hundred Thousand Dollars ($500,000.00) for property damage, (3) procure
a policy for accident or damages in the Premises, on parking areas and sidewalks
in front thereof, and in entrance ways and other portions of the building in the
control or use of Lessee, in the amounts set forth in (2) above.
During any construction or equipping of the
Premises by Lessee, Lessee shall, at the expense of Lessee, carry the types and
amounts of insurance that Lessor may from time to time reasonably request, to
insure Lessor against loss or damage by reason of accident, fire, damage, or
other casualty during any construction.
Proof of insurance shall be provided to
Lessor by Lessee at the beginning of this Lease and on each anniversary date
thereafter. Proof shall include without limitation certificates of insurance,
policies of insurance, and receipted bills or other evidence of payment. In the
event that Lessee fails to deliver proof of insurance as aforesaid, Lessor may,
but has no obligation to, after fifteen (15) days notice to Lessee, take out the
required policies and charge Lessor's costs to Lessee as additional rent, to be
paid by Lessee on the next rental payment following the date on which Lessor
takes out the policies.
j. Machine/Equipment Noise, Vibration, etc. Limit and
maintain any vibration, noise, cold or heat from business machines and
mechanical, electrical, electronic and computerized equipment belonging to
Lessee, which may be objectionable to Lessor, by maintaining at the expense of
Lessee settings of cork, rubber or spring type vibration eliminators sufficient
to absorb and prevent such vibration and noise.
k. Water/Wash Closets and Plumbing Fixtures. Not use
water and wash closets and other plumbing fixtures for any purposes other than
those for which such closets and fixtures were designed or constructed, and
shall not deposit sweepings, rubbish, rags, acids or other substances therein.
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l. Mechanics' Liens. Lessee shall promptly pay any
contractors and materialmen who supply labor, work or materials to Lessee at the
Premises so as to avoid the possibility of a lien attaching to the Premises.
Lessee will not permit any mechanics' lien or liens to be placed on the Premises
or improvements to the Premises. If an mechanics' lien claim is filed on the
Premises or improvements to the Premises, Lessee will promptly cause the
claim/lien to be discharged of record by payment, deposit, bond, order of court
or otherwise or will pay the claim/lien. If default in payment of the claim/lien
continues of record for thirty (30) days after written notice from Lessor to
Lessee, Lessor may, at its option, pay the claim/lien or any portion thereof
without inquiry as to its validity. Any amounts paid by Lessor to remove a
mechanics' lien caused to be filed against the Premises or improvements thereon,
including expenses and interest (including reasonable attorneys' fees, costs and
expenses), shall be due from Lessee to Lessor and shall be repaid to Lessor
immediately upon receipt of notice, together with interest at the rate of seven
percent (7%) per annum from the date Lessor paid to remove such lien until the
date Lessee repays Lessor. Nothing in this Lease is intended to authorize Lessee
to do or cause any work or labor to be done or any materials to be supplied for
the account of Lessor; all of the same to be solely for Lessee's account and at
Lessee's risk and expense. Throughout the Term and any extensions thereto, the
term "mechanics' lien" is used to include any lien, encumbrance or charge levied
or imposed upon the Premises or any interest therein or income therefrom on
account of any mechanics', laborers' or materialmens' lien or claim arising out
of any debt or liability to or any claim or demand of any contractor, mechanic,
supplier, materialman or laborer.
m. Estoppel Certificate. Lessee agrees to execute and
deliver to any mortgagee or purchaser of the Premises, immediately upon request,
an estoppel certificate stating the amount of rent due from Lessee hereunder,
that this Lease remains in full force and effect without modification, and that
Lessee has no set-offs against any rental payments; or, if this Lease has been
modified, or if Lessee has any set-offs against any rental payments, the exact
nature of the modifications and the precise amount of the set-offs.
6. Negative Covenants of Lessee. Lessee covenants and agrees that
it will do none of the following things without first obtaining the consent, in
writing, of Lessor, which consent Lessor shall not unreasonably withhold, and
without providing Lessor with reimbursement for any expenses incurred or
incidental to Lessee's proposed action:
a. Use of Premises. Occupy the Premises in any other
manner or for any other purpose than as set forth in Paragraph One (1) of this
Lease.
b. Assignment and Subletting. Assign, mortgage or pledge
this Lease or under-let or sub-lease the Premises, or any part thereof, or
permit any other person, firm or corporation to occupy the Premises, or any part
thereof; nor shall any assignee or sub-Lessee assign, mortgage or pledge this
Lease or such sub-lease, without an additional written consent by Lessor, and
without such consent no such assignment, mortgage or pledge shall be valid. If
Lessee becomes embarrassed or insolvent, or makes an assignment for the benefit
of creditors, or if a petition in bankruptcy is filed by or against Lessee or a
xxxx in equity or other proceeding for the appointment of a receiver for Lessee
is filed, or if the real or personal property of Lessee shall be sold or levied
upon by any Sheriff, Xxxxxxxx or Constable, the same shall be a violation of
this covenant.
c. Machinery. Use or operate any machinery that, in
Lessor's sole but reasonable opinion, is harmful to the building.
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d. Fire Insurance. Do or suffer to be done, any act,
matter or thing objectionable to the fire insurance companies whereby the fire
insurance or any other insurance in force or hereafter to be placed on the
Premises, or any part thereof, or on the building of which the Premises is a
part, shall become void or suspended, or whereby the same shall be rated as a
more hazardous risk than at the date of execution of this Lease, or employ any
person or persons objectionable to the fire insurance companies or carry or have
any benzine or explosive matter of any kind, except as needed for welding and
cutting in Lessee's business operation, in and about the Premises. In case of a
breach of this covenant (in addition to all other remedies given to Lessor in
case of the breach of any of the conditions or covenants of this Lease) Lessee
agrees to pay to Lessor as additional rent any and all increase or increases of
premiums on insurance carried by Lessor on the Premises, or any part thereof, or
on the building of which the Premises is be a part, caused in any way by the
occupancy of Lessee.
e. Removal of Goods. Remove, attempt to remove or
manifest an intention to remove Lessee's or Lessor's goods or property from or
out of the Premises, otherwise than in the ordinary and usual course of
business, without having first paid and satisfied Lessor for all rent which may
become due the Term or Extension.
f. Vacate Premises. Vacate or desert the Premises during
the term of this Lease, or permit the same to be empty and unoccupied.
7. Signs. Any signs, projections or devices either outdoor or
indoor, whether painted, placed or erected on any portion of the Premises,
whether visible from the exterior or not, must be in accordance with the
applicable ordinances of the municipality in which the Premises is located, and
shall be erected by Lessee only with the prior written consent of Lessor. Lessor
makes no representation to Lessee or to any other party with respect to the
acceptability or legality of any signs, existing or contemplated, that Lessee
intends to erect or install on, in, about or near the Premises.
8. Environmental Liabilities.
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a. Lessee shall not, either with or without negligence,
cause or permit the escape, disposal or release of any Hazardous Substances, as
hereinafter defined, on, in or under the Premises. Lessee shall not allow the
storage or use of such substances in any manner not sanctioned by law or by the
highest standards prevailing in the industry for the storage and use of such
substances, nor allow to be brought onto the Premises any such substances except
to use in the ordinary course of Lessee's business.
b. Lessee covenants and agrees that the Premises will,
at all times during its use or occupancy thereof, be kept and maintained so as
to comply with all now existing or hereafter enacted or issued statutes, laws,
rules, ordinances, orders, permits and regulations of all state, federal, local,
and other governmental and regulatory authorities, agencies and bodies
applicable to the Premises, pertaining to environmental matters, or regulating,
prohibiting or otherwise having to do with Hazardous Substances or asbestos or
all other toxic, or hazardous wastes (collectively called "Environmental Laws").
c. Lessee agrees to clean up all spills and discharges
of Hazardous Substances which are caused by Lessee or Lessee's agents,
employees, invitees or guests on the Premises in an manner that shall comply
with all applicable environmental laws. Lessee shall notify Lessor in writing of
all such incidents, within ten (10) calendar days of such incident's occurrence.
Lessor, may from time to time as Lessor deems appropriate, conduct periodic
tests and examinations of the Premises to confirm and monitor Lessee's
compliance with the Lease. Such tests and examinations shall be conducted in
such a manner as to minimize the interference with Lessee's permitted activities
on the Premises.
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d. Lessee shall indemnify, defend and hold Lessor, and
its partners, affiliates, parents, officers, directors and employees,
(collectively, the "Indemnities"), free, harmless and indemnified from any
expenses, penalties, fines, claims, demands, liabilities, costs, personal
injuries, property damage, actions and causes of action, suits, debts,
judgments, demands or charges whatsoever which the Indemnities shall or may
incur, or which any such party would otherwise incur, by reason of Lessee's
failure to comply with this Lease including, but not limited to: (1) the cost of
bringing the Premises into compliance with all laws after a spill or discharge
attributable to Lessee or Lessee's agents, employees, invitees or guests; (2)
the reasonable cost of all appropriate tests and examinations of the Premises to
confirm that the Premises has been brought into compliance with all laws after a
spill or discharge attributable to Lessee or Lessee's agents, employees,
invitees or guests; and (3) the reasonable fees and expenses of the
Indemnities's attorneys, engineers, and consultants incurred by the Indemnities
in enforcing and confirming compliance with this Lease after a spill or
discharge attributable to Lessee or Lessee's agents, employees, invitees or
guests.
e. For the purposes of this section, the Premises shall
include the real estate covered by this Lease; all improvements thereon; all
personal property used in connection therewith (including that owned by Lessor
and Lessee); and the soil, groundwater and surface water of the Premises.
f. The covenants contained in this section shall survive
the expiration or termination of this Lease, and shall continue for so long as
Lessor and its successors and assigns, and the Indemnities, may be subject to
any expenses, obligations, penalties, fines, claims, demands, liabilities,
costs, personal injuries, property damage, actions and causes of action, suits,
debts, judgments, demands or charges whatsoever against which Lessee has agreed
to indemnify the Indemnities under this Lease.
g. All terms, except as otherwise defined herein, shall
have the meanings as set forth in this Lease. For purposes hereof, Hazardous
Substances shall mean (1) any "Hazardous Substance," "Pollutant" or
"Contaminant" (as defined in the Comprehensive Environmental Response and
Compensation and Liability Act, 42 U.S.C.A. Section 9601(14) and (33)) or 40
C.F.R. Part 302; (2) any hazardous substance, hazardous waste or solid waste, as
though terms are defined in applicable state or local laws; (3) any substances
containing petroleum as that term is defined in Section 9001(8) of the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. Section 6991(8) or 40
C.F.R. 280.1; or (4) any other substance for which any governmental entity
requires special handling in its collection, storage, treatment or disposal.
9. Lessor's Rights - Inspection and Repairs. Lessee covenants and
agrees that Lessor or Lessor's authorized agents shall have the right to go upon
and inspect the Premises at all reasonable times and with reasonable advance
notice to Lessee, to make repairs to the Premises or the building of which the
Premises is a part.
10. Responsibility of Lessee. Lessee agrees to relieve and hereby
does relieve Lessor from all liability by reason of any damage or injury to any
property or to Lessee or Lessee's guests, servants or employees which may arise
from or be due to the use, misuse or abuse of all or any of the openings,
stairways, hallways of any kind whatsoever which may exist or hereafter be
erected or constructed on the Premises or the sidewalks on and/or surrounding
the Premises or which may arise from defective construction, failure of water
supply, light, power, electric wiring, plumbing or machinery, wind, lightning,
storm or any other cause whatsoever on the Premises or the building of which the
Premises is a part.
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11. Responsibility of Lessor.
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a. Total Destruction of Premises. In the event that the
Premises are totally destroyed or are so damaged by fire or other casualty that
in the opinion of a licensed architect retained by Lessor, the same cannot be
repaired and restored within ninety (90) days from the happening of such injury,
this Lease shall absolutely cease and determine and the rent shall xxxxx for the
balance of the Term.
b. Partial Destruction of Premises. If the damage be
only partial and such that the Premises can be restored, in the opinion of a
licensed architect retained by Lessor, to approximately their former condition
within ninety (90) days from the day of the casualty loss, Lessor may at
Lessor's option restore the same with reasonable promptness reserving the right
to enter upon the Premises for that purpose. Lessor also reserves the right to
enter upon the Premises whenever necessary to repair damage caused by fire or
other casualty to the building of which the Premises is a part, even though that
the effect of such entry would render the Premises or a part thereof
untenantable. In either event, the rent shall be apportioned and suspended
during the time Lessor is in possession, taking into account the proportion of
the Premises rendered untenantable and the duration of Lessor's possession. If a
dispute arises as to the amount of rent due under this clause, Lessee agrees to
pay the full amount claimed by Lessor, but Lessee shall have the right to
proceed by law to recover the excess payment, if any.
c. Repairs by Lessor. Lessor shall make such election to
repair the Premises in the event of total or partial destruction or terminate
this Lease by giving notice to Lessee at the Premises within thirty (30) days
from the date Lessor received notice that the Premises had been destroyed or
damaged by fire or other casualty. Any and all other repairs to the Premises
shall be made by and paid for by Lessee.
d. Damage for Interruption of Use. Except to the extent
hereinbefore provided, Lessor shall not be liable for any damage, compensation
or claim by reason of the necessity of repairing any portion of the building,
the interruption in the use of the Premises, any inconvenience or annoyance
arising as a result of such repairs or interruption, or the termination of this
Lease by reason of damage to or destruction of the Premises.
e. Representation of Condition of Premises. Lessor has
let the Premises in the present "as is" condition and without any
representations, other than those specifically set forth herein by Lessor.
Lessor is under no duty to make repairs, alterations or decoration at the
inception of this Lease or at any time thereafter unless such duty of Lessor
shall be set forth in writing. Notwithstanding the foregoing, Lessor has
allocated Two Hundred Eight Thousand and 00/100 Dollars ($208,000.00) (or Ten
and 00/100 Dollars ($10.00) per square foot) for purposes of refitting the
Premises, and the Premises may be used by Lessee for such refitting purposes as
Lessee desires.
f. Zoning. Lessor warrants only that under current
zoning the Premises is properly zoned to permit Lessee to maintain and operate
an office building in order to engage in the business which Lessee will conduct.
Lessor does not warrant or undertake that Lessee shall be able to obtain a
permit under any zoning ordinance or regulation for such use as Lessee intends
to make of the Premises and nothing in this Lease contained shall obligate
Lessor to assist Lessee in obtaining said permit. Lessee further agrees that in
the event a permit cannot be obtained by Lessee under any zoning ordinance or
regulation, this Lease shall not terminate without Lessor's consent, and Lessee
shall use the Premises only in the manner permitted under such zoning ordinances
or regulation.
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12. Miscellaneous Agreements and Conditions.
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Conduct of Lessee. This Lease is granted upon the
express condition that Lessee and/or the occupants of the Premises shall not
conduct themselves in a manner which is improper or objectionable and violates
any applicable law or regulation, and if at any time during the term of this
Lease or any extension or continuation thereof Lessee or any occupier of the
Premises shall have conducted himself in a manner which is improper or
objectionable, Lessee shall be taken to have broken the covenants and conditions
of this Lease, and Lessor will be entitled to all of the rights and remedies
granted and reserved in this Lease, for the Lessee's failure to observe all of
the covenants and conditions of this Lease.
13. Remedies of Lessor. If Lessee:
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a. Does not pay in full when due any and all
installments of rent and/or other charge or payment in this Lease, included, or
agreed to be treated or collected as rent and/or any other charge, expense, or
cost herein agreed to be paid by Lessee; or
b. Violates or fails to perform or otherwise breaks any
covenant or agreement contained in this Lease; or
c. Vacates the Premises or removes or attempts to remove
or manifests an intention to remove any goods or property from the Premises
otherwise than in the ordinary and usual course of business without having first
paid and satisfied Lessor in full for all rent and other charges then due or
that may thereafter become due until the expiration of the Term or Extension; or
d. Becomes embarrassed or insolvent, or makes an
assignment for the benefit of creditors, or if a petition in bankruptcy is filed
by or against Lessee or a complaint in equity or other proceedings for
reorganization or for composition with creditors under any State or Federal law
be instituted by or against Lessee, or if the real or personal property of
Lessee shall be levied upon or be sold, thereupon:
(1) The whole balance of rent due for the
entire Term and/or any extension thereto, including but not limited to Base Rent
and additional rent, and other charges, payments, costs, and expenses agreed to
be paid by Lessee, or any part thereof, shall be taken to be due and payable and
in arrears as if by the terms and provisions of this Lease said balance of rent
and other charges, payments, taxes, costs and expenses were on that date,
payable in advance; or
(2) With respect to any portion of the
Premises which is vacant or which is physically occupied by Lessee, Lessor may
remove all persons and property therefrom, and store such property in a public
warehouse or elsewhere at the cost of and for the account of Lessee, without
service of notice or resort to legal process (all of which Lessee expressly
waives) and without being deemed guilty of or liable for trespass or becoming
liable for any loss or damage which may be occasioned thereby (Lessee hereby
waives any and all rights of redemption granted by or under any present or
future law in the event this Lease is terminated or Lessee is evicted or
dispossessed by reason of violation by Lessee of any of the terms and conditions
of this Lease); or
(3) At the option of Lessor, this Lease
shall determine and become absolutely void without any right on the part of
Lessee to reinstate this Lease by payment of any sum due or by other performance
9
of any condition, term, or covenant, broken; whereupon, Lessor shall be entitled
to recover damages for such breach in an amount equal to the amount of rent
reserved for the balance of the Term and any extension properly exercised; or
THE FOLLOWING PARAGRAPH SETS FORTH A WARRANT OF AUTHORITY FOR
AN ATTORNEY TO CONFESS JUDGMENT AGAINST THE LESSEE. IN GRANTING THIS WARRANT OF
ATTORNEY TO CONFESS JUDGMENT AGAINST THE LESSEE, THE LESSEE HEREBY KNOWINGLY,
INTENTIONALLY AND VOLUNTARILY, AND AFTER CONSULTING WITH SEPARATE COUNSEL OF THE
LESSEE, UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS THE LESSEE HAS OR MAY HAVE TO
PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS
OF THE COMMONWEALTH OF PENNSYLVANIA, INCLUDING ANY PRIOR NOTICE AND OPPORTUNITY
BEFORE JUDGMENT IS ENTERED OR BEFORE EXECUTION IS ISSUED UPON ANY JUDGMENT SO
ENTERED. THE LESSEE, BY EXECUTING THE FOLLOWING SIGNATURE LINE, ACKNOWLEDGED
THAT THE LESSEE HAS READ AND THAT THE LESSEE COMPREHENDS FULLY THE EFFECT OF
THIS CONFESSION OF JUDGMENT AND INCLUDING THE WAIVER OF PRIOR NOTICE AND
OPPORTUNITY FOR A HEARING BEFORE THE ENTRY OF A JUDGMENT OR ANY EXECUTION
ISSUING ON THAT JUDGMENT.
Cimnet, Inc.
By: /s/ XXXX X. XXXXXXXXXX
-----------------------------------
Attest: /s/ XXXXX XXXXXXXX
-----------------------------------
"Lessee"
10
CONFESSION OF JUDGMENT FOR MONEY. LESSEE COVENANTS AND AGREES THAT IF THE RENT
AND/OR ANY CHARGES RESERVED IN THIS LEASE AS RENT (INCLUDING ALL ACCELERATIONS
OF RENT PERMISSIBLE UNDER THE PROVISIONS OF THIS LEASE) SHALL REMAIN UNPAID FIVE
(5) BUSINESS DAYS AFTER THE SAME IS REQUIRED TO BE PAID, THEN AND IN THAT EVENT,
LESSOR MAY CAUSE JUDGMENT TO BE ENTERED AGAINST LESSEE, AND FOR THAT PURPOSE
LESSEE HEREBY AUTHORIZES AND EMPOWERS LESSOR OR ANY PROTHONOTARY, CLERK OF COURT
OR ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR AND CONFESS JUDGMENT AGAINST
LESSEE AND AGREES THAT LESSOR MAY COMMENCE AN ACTION PURSUANT TO PENNSYLVANIA
RULES OF CIVIL PROCEDURE NO. 2950 ET. SEQ. AS AMENDED FROM TIME TO TIME FOR THE
RECOVERY FROM LESSEE OF ALL RENT UNDER THIS LEASE (INCLUDING ALL ACCELERATIONS
OF RENT PERMISSIBLE UNDER THE PROVISIONS OF THIS LEASE) AND/OR FOR ALL CHARGES
RESERVED HEREUNDER AS RENT UNDER THIS LEASE, AS WELL AS FOR INTEREST AND COSTS
AND ATTORNEY'S COMMISSION, FOR WHICH AUTHORIZATION TO CONFESS JUDGMENT, THIS
LEASE, OR A TRUE AND CORRECT COPY THEREOF, SHALL BE SUFFICIENT WARRANT. SUCH
JUDGMENT MAY BE CONFESSED AGAINST LESSEE FOR THE AMOUNT OF RENT IN ARREARS
(INCLUDING ALL ACCELERATIONS OF RENT PERMISSIBLE UNDER THE PROVISIONS OF THIS
LEASE) AND/OR FOR ALL CHARGES RESERVED HEREUNDER AS RENT, AS WELL AS FOR
INTEREST AND COST; TOGETHER WITH ATTORNEY'S COMMISSION OF TWENTY PERCENT (20%)
OF THE FULL AMOUNT OF LESSOR'S CLAIM AGAINST LESSEE. LESSEE FURTHER WAIVES ITS
RIGHTS, IF ANY, TO NOTICE BY THE LESSOR PRIOR TO EXECUTION UPON SUCH JUDGMENT
AGAINST ANY OF THE LESSOR'S PROPERTY, REAL OR PERSONAL. NEITHER THE RIGHT TO
INSTITUTE AN ACTION PURSUANT TO PENNSYLVANIA RULES OF CIVIL PROCEDURE NO. 2950
ET. SEQ. AS AMENDED FROM TIME TO TIME NOR THE AUTHORITY TO CONFESS JUDGMENT
GRANTED HEREIN SHALL BE EXHAUSTED BY ONE OR MORE EXERCISES THEREOF, BUT
SUCCESSIVE COMPLAINTS MAY BE FILED AND SUCCESSIVE JUDGMENTS MAY BE ENTERED FOR
THE AFOREDESCRIBED SUMS FIVE (5) DAYS OR MORE AFTER THEY BECOME DUE AS WELL AS
AFTER THE EXPIRATION OF THE ORIGINAL TERM AND/OR DURING OR AFTER EXPIRATION OF
ANY EXTENSION OR RENEWAL OF THIS LEASE.
THE FOLLOWING PARAGRAPH SETS FORTH A WARRANT OF AUTHORITY FOR
AN ATTORNEY TO CONFESS JUDGMENT AGAINST THE LESSEE. IN GRANTING THIS WARRANT OF
ATTORNEY TO CONFESS JUDGMENT AGAINST THE LESSEE, THE LESSEE HEREBY KNOWINGLY,
INTENTIONALLY AND VOLUNTARILY, AND AFTER CONSULTING WITH SEPARATE COUNSEL OF THE
LESSEE, UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS THE LESSEE HAS OR MAY HAVE TO
PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS
OF THE COMMONWEALTH OF PENNSYLVANIA, INCLUDING ANY PRIOR NOTICE AND OPPORTUNITY
BEFORE JUDGMENT IS ENTERED OR BEFORE EXECUTION IS ISSUED UPON ANY JUDGMENT SO
ENTERED. THE LESSEE, BY EXECUTING THE FOLLOWING SIGNATURE LINE, ACKNOWLEDGED
THAT THE LESSEE HAS READ AND THAT THE LESSEE COMPREHENDS FULLY THE EFFECT OF
THIS CONFESSION OF JUDGMENT AND INCLUDING THE WAIVER OF PRIOR NOTICE
11
AND OPPORTUNITY FOR A HEARING BEFORE THE ENTRY OF A JUDGMENT OR ANY EXECUTION
ISSUING ON THAT JUDGMENT.
Cimnet, Inc.
By: /s/ XXXX X. XXXXXXXXXX
-----------------------------------
Attest: /s/ XXXXX XXXXXXXX
-----------------------------------
"Lessee"
CONFESSION OF JUDGMENT FOR POSSESSION OF REAL PROPERTY. LESSEE COVENANTS AND
AGREES THAT IF THIS LEASE SHALL BE TERMINATED (EITHER BECAUSE OF CONDITION
BROKEN DURING THE TERM OF THIS LEASE OR ANY RENEWAL OR EXTENSION THEREOF AND/OR
WHEN THE TERM HEREBY CREATED OR ANY EXTENSION THEREOF SHALL HAVE EXPIRED) THEN,
AND IN THAT EVENT, LESSOR MAY CAUSE A JUDGMENT IN EJECTMENT TO BE ENTERED
AGAINST LESSEE FOR POSSESSION OF THE PREMISES, AND FOR THAT PURPOSE LESSEE
HEREBY AUTHORIZES AND EMPOWERS ANY PROTHONOTARY, CLERK OF COURT OR ATTORNEY OF
ANY COURT OF RECORD TO APPEAR FOR LESSEE AND TO CONFESS JUDGMENT AGAINST LESSEE
IN EJECTMENT FOR POSSESSION OF THE PREMISES, AND AGREES THAT LESSOR MAY COMMENCE
AN ACTION PURSUANT TO PENNSYLVANIA RULES OF PROCEDURE NO. 2970 ET. SEQ. AS
AMENDED FROM TIME TO TIME FOR THE ENTRY OF AN ORDER IN EJECTMENT FOR POSSESSION
OF REAL PROPERTY AND LESSEE FURTHER AGREES THAT A WRIT OF POSSESSION PURSUANT
THERETO MAY ISSUE FORTHWITH, FOR WHICH AUTHORIZATION TO CONFESS JUDGMENT AND FOR
THE ISSUANCE OF A WRIT OR WRITS OF POSSESSION PURSUANT THERETO, THIS LEASE, OR A
TRUE AND CORRECT COPY THEREOF, SHALL BE SUFFICIENT WARRANT. LESSEE FURTHER
COVENANTS AND AGREES, THAT IF FOR ANY REASON WHATSOEVER, AFTER SAID ACTION SHALL
HAVE COMMENCED THE ACTION SHALL BE TERMINATED AND THE POSSESSION OF THE PREMISES
SHALL REMAIN IN OR BE RESTORED TO LESSEE, LESSOR SHALL HAVE THE RIGHT UPON ANY
SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON THE TERMINATION OF THIS LEASE AS ABOVE
SET FORTH TO COMMENCE SUCCESSIVE ACTIONS FOR POSSESSION OF REAL PROPERTY AND TO
CAUSE THE ENTRY OF SUCCESSIVE JUDGMENTS BY CONFESSION IN EJECTMENT FOR
POSSESSION OF THE PREMISES.
14. Further Remedies of Lessor. In the event of any default as
above set forth Lessor, or anyone acting on Lessor's behalf, at Lessor's option:
a. May let Premises or any part or parts thereof to such
person or persons as may, in Lessor's discretion, be best; and Lessee shall be
liable for any loss of rent for the balance of the Term and any Extension
properly exercised. Any such re-entry or reletting by Lessor under the terms
hereof shall be without prejudice to Lessor's claims for actual damages, and
shall under no circumstances, release Lessee from liability for such damages
arising out of the breach of any of the covenants, terms, and conditions of this
Lease.
12
b. May have and exercise any and all other rights and/or
remedies, granted or allowed landlords by any existing or future Statute, Act of
Assembly, or other law of this state in cases where a landlord seeks to enforce
rights arising under a lease agreement against a tenant who has defaulted or
otherwise breached the terms of such lease agreement; subject, however, to all
of the rights granted or created by any such Statute, Act of Assembly, or other
law of this state existing for the protection and benefit of tenants; and
c. May have and exercise any and all other rights and
remedies contained in this Lease.
15. Notices. All notices must be given in writing.
-------
16. Lease Contains all Agreements. This Lease sets forth all the
promises, agreements, conditions and understandings, either oral or written,
between them other than herein set forth. Except as otherwise provided in this
Lease, no subsequent alteration, amendment, change or addition to this Lease
shall be binding upon Lessor or Lessee unless reduced to writing and signed by
each of them.
17. Heirs and Assignees. All rights and liabilities herein given
to, or imposed upon, the respective Parties hereto shall extend to and bind the
several and respective heirs, executors, administrators, successors and assigns
of the Parties.
18. Miscellaneous Provisions.
------------------------
a. Indemnification -- Liabilities and Losses. Lessee
shall, at all times prior to the termination of this Lease and to the delivery
to Lessor of possession of the Premises and all improvements thereon, indemnify
Lessor against all liability, loss, cost, damage or expenses sustained by
Lessor, including reasonable attorney's fees and other expenses of litigation,
arising prior to termination of the Term or any Extension and delivery to Lessor
of possession of the Premises:
(1) On account of or through the use of the
Premises or improvements or any part thereof by Lessee or by any other person
for any purpose inconsistent with the provisions of this Lease.
(2) Arising out of or directly or indirectly
due to any failure of Lessee in any respect promptly and faithfully to satisfy
his obligations under this Lease.
(3) Arising out of or directly or indirectly
due to any action or other occurrence causing injury to any person or persons or
property resulting from the use of the Premises and improvements or any part
thereof by Lessee or Lessee's agents, employees, invitees or guests, especially
the sale of alcoholic beverages.
(4) For which the Premises and improvements
or any part thereof where Lessor or Lessor as owner thereof are interested
therein may hereafter without fault by Lessor become liable and especially, but
not exclusively, any such liability, loss, cost, damage or expense that may
arise under any statute, ordinance or regulation. Lessee shall indemnify Lessor
against any loss or liability arising by reason of any use or condition of the
Premises caused by Lessee or Lessee's agents, employees, invitees and guests or
any part thereof during the Lease term, provided that no such indemnification
shall be required with respect to losses or liabilities arising by reason of the
affirmative negligence of Lessor.
13
b. Improvements and/or Alterations. Upon written consent
by Lessor, Lessee may erect or make all improvements and/or alterations to the
Premises which are reasonably necessary to Lessee's business. Upon expiration or
sooner termination of this Lease, Lessee covenants and agrees that Lessee will
either remove all improvements and/or alterations and restore the Premises to
the same or substantially the same condition existing before Lessee made
improvements and/or alterations, or allow the Premises to remain in the improved
and/or altered condition and release Lessor from any and all obligations and
liabilities regarding compensation for the improvements and/or alterations.
c. Option to Extend. On condition that Lessee has at all
times faithfully and punctually performed all of the covenants and conditions of
this Lease, Lessee shall deliver to Lessor at least (60) days, but no more than
ninety (90) days, prior to the expiration of the Term of this Lease written
notice that Lessee desires to enter into negotiations concerning a possible
extension of the Lease for an additional term commencing at the termination date
of this Lease. Lessee is not automatically entitled to an extension. All of the
terms and conditions of this Lease shall apply during the renewal term, unless
new terms and conditions are proposed by Lessor and agreed upon by Lessor and
Lessee in the sole discretion of Lessor. If notice is not given in the manner
provided herein within the time specified, this option shall expire. Lessee,
Cimnet, Inc., shall have the first option to enter into any extension of the
Term of this Lease.
d. Definition. The words "Lessor" and "Lessee" as herein
used and personal pronouns referring thereto, shall include the singular as well
as the plural number, the male, neuter and female genders, and shall apply to
corporations as well as to natural persons.
e. Headings. Any headings proceeding the text of the
several paragraphs and sub-paragraphs of this Lease are inserted solely for
convenience of reference and shall not constitute a part of this Lease nor shall
they affect its meaning, construction or effect.
f. Severability. The covenants of this Lease are
severable and if any covenant or portion of this Lease is held to be invalid or
unenforceable in any reason, such covenant or portion shall be modified to the
extent necessary to cure invalidity or unenforceability, and all other covenants
and provisions shall remain valid and enforceable.
g. Entire Agreement. This Lease expresses the entire
agreement between the Parties regarding the subject matter thereof. This Lease
shall not be amended or waived, except by written agreement signed by both
Parties.
h. Choice of Law. This Lease shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania.
EXECUTED this 26th day of January, 2007.
Lessee:
CIMNET, INC.
By: /s/ XXXX X. XXXXXXXXXX, III
--------------------------------
(Xxxx X. Xxxxxxxxxx, III)
Title: President and CEO
14
Lessor:
000 XXXXXXXXX XXXXXXXXX JOINT VENTURE
by and through:
JNL REAL ESTATE, LLC, a Pennsylvania
limited liability company
By: /s/ XXXX X. XXXXXXXXXX, III
----------------------------------------
(Xxxx X. Xxxxxxxxxx, III, manager)
By: /s/ XXXX X. XXXXXXXXXX
----------------------------------------
(Xxxx X. Xxxxxxxxxx, manager)
EASTWOOD ASSOCIATES, LLC, a Pennsylvania
limited liability company
By: /s/ XXXXX XXXXXXXX
----------------------------------------
(Xxxxx Xxxxxxxx, manager)
By: /s/ XXXXXX XXXXX
----------------------------------------
(Xxxxxx Xxxxx, manager)
By: /s/ XXXXXXX XXXXXXXX
----------------------------------------
(Xxxxxxx Xxxxxxxx, manager)
By: /s/ XXXXX X. XXXXXXXXXXX
----------------------------------------
(Xxxxx X. Xxxxxxxxxxx, manager)
HBL HOLDINGS, LLC, a Pennsylvania limited liability company
By: /s/ XXXXXXX X. XXXXX
----------------------------------------
(Xxxxxxx X. Xxxxx, manager)
15
