LEASE AGREEMENT
THIS LEASE AGREEMENT, made this 1st day of December, 1998, by and
between DIALYSIS CORPORATION OF AMERICA, a Florida corporation, with
offices at 00 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxx 00000 (hereinafter
referred to as "Lessor") and Wirehead Networking Solutions, Inc., a
Pennsylvania corporation, with offices at 00 Xxxxxx Xxxxxx, Xxxxx 0X,
Xxxxxxx, Xxxxxxxxxxxx 00000 (hereinafter referred to as "Lessee").
1. PREMISES
--------
Lessor, in consideration of the rents and covenants hereinafter
mentioned, does demise and lease unto Lessee, all that certain space
consisting of 1,496 square feet of rentable space (the "Space"), with
specifications for the Space attached as Exhibit A in the building
located at 00 Xxxxxx Xxxxxx, Xxxxx 0X, Xxxxxxx, Xxxxxxxxxxxx 00000
(the "Building").
2. TERM
----
2.1 Term This Lease is for the term of three (3) years, com-
----
mencing on the first day of January, 1999 (the "Term"). In the event
this Lease commences on a day other than the first day of the month,
then the rent shall be paid pro rata for such fractional month.
2.2 Renewal Option
--------------
This Lease shall be renewable for one additional period of three
(3) years ("Renewal Period") each under the terms and conditions of this
Lease, provided that:
(i) Lessee is not in default hereunder;
(ii) Lessee has given written notice of its intent to renew
the Lease not less than one hundred twenty (120) days prior to the
expiration of the current Term; and
(iii) The rent for such Renewal Period will be $9.00 per
square foot for the first and second years of the Renewal Period and
$10.00 per square foot for the third year of the Renewal Period, and
such rent will commence on the day of the month immediately following
the expiration of the Term, which rent shall be pro rated for any
portion of a month.
2.3 Holdover as Renewal
-------------------
A holdover by Lessee beyond the Term of this Lease or any Renewal
Term shall, at the option of Lessor, be deemed a renewal of this Lease
on a year to year basis, with the renewal being under and subject to
all provisions contained in this Lease; provided, any holdover renewal
being under and subject to an automatic ten percent (10%) increase in
the Base Rent and Additional Rent with respect to the CAM expenses as
those terms are defined in Article 4.
1
3. POSSESSION AND USE
------------------
3.1 Acceptance of Premises
----------------------
Lessee shall accept the Space in its condition as of the commence-
ment date of the Term, subject to all applicable laws, ordinances,
regulations, covenants and restrictions. Lessor has made no represen-
tation or warranty as to the suitability of the Space for the conduct
of Lessee's business, and Lessee waives any implied warranty that the
Space is suitable for Lessee's intended purposes and Use. Except as
provided in Section 6, in no event shall Lessor have any obligation for
any defects in the Space or any limitation on its Use. The taking of
possession of the Space shall be conclusive evidence that Lessee
accepts the Space and that the Space was in good condition at the time
possession was taken except for items that are Lessor's responsibility
under Section 6 and any punchlist items agreed to in writing by Lessor
and Lessee.
3.2 Possession
----------
Possession of the Space includes the exclusive use of the same,
together with the use, concurrent with any other occupants of the
Building, of the common hallways, stairs, elevators (if any), toilet
rooms, parking areas, air conditioning, storage, waste removal,
electric, heat, light and water. Lessee, its agents, invitees,
employees, servants and visitors (collectively "Agents") shall have
the right of ingress and egress to and from the said Space and the
Building.
3.3 Use Availability
----------------
The Space shall be used only for the purpose of general business
offices and marketing (not a retail store) and other lawful purposes as
may be incidental thereto ("Use").
It shall be Lessee's responsibility at its own expense to determine
and, if necessary, submit the appropriate applications for the Use of the
Space to and comply with all the requirements of the appropriate govern-
mental officials, agencies, commissions and boards having jurisdiction
over the Use of the Space, including but not limited to the Americans
With Disabilities Act ("Government Compliance"). Lessor will use its
best efforts to assist Lessee in submitting and obtaining any such
applications and approvals. If Lessee is unable to obtain the
appropriate permits, variances, licenses and/or other approvals for the
Use of the Space, Lessor may, at its option but is not otherwise
required, obtain such Government Compliance, and Lessee will use its
best efforts to assist Lessor in obtaining such compliance, and all
costs and expenses to effect such Government Compliance to be charged
to Lessee as Additional Rent as defined in Section 4.2 accruing for
the month following effectuation of such compliance; or if Lessor
does not exercise its option to obtain the Government Compliance,
this Lease will automatically and immediately terminate and become
null and void.
4. RENT
----
4.1 Base Rent
---------
Lessee agrees to pay as base rent to Lessor for the Use of the
Space during the Term $6.00, $7.00 and $8.00 per square foot for each
of the first, second and third years of the Term, respectively, or
Eight Thousand Nine Hundred Seventy-Six and 00/100 ($8,976.00) Dollars
the first year of the Term to be paid in monthly installments of Seven
Hundred Forty-Eight and 00/100 ($748.00) Dollars, Ten Thousand Four
Hundred and Seventy-Two and 00/100 ($10,472.00) Dollars the second year
of the Term to be paid in monthly installments of Eight Hundred Seventy-
Two and 67/100 ($872.67) Dollars, and Eleven Thousand Nine Hundred
Sixty-Eight and 00/100 ($11,968.00) Dollars the third year of the Term
to be
2
paid in monthly installments of Nine Hundred Ninety-Seven and 33/100
($997.33) Dollars, payable monthly in advance, without demand, deduc-
tion or set-off, on the first day of each calendar month during the
Term, allowing five (5) day check processing time ("Base Rent").
Lessee shall pay to Lessor upon the execution of this Lease One
Thousand One Hundred Twenty Two and 00/100 ($1,122.00) Dollars which
Lessor shall credit Lessee for the first month's Base Rent and
Additional Rent (CAM charges) (pro-rated if the commencement date of
the Term falls on a date later than the first day of the month).
4.2 Additional Rent
---------------
The Lessee shall pay as additional rent above the Base Rent
("Additional Rent") $3.00 per square foot of the rentable Space for
an annual aggregate of Four Thousand Four Hundred Eighty-Eight and
00/100 ($4,488.00) Dollars for all common area maintenance and other
operating costs and expenses attributable to the operation and
maintenance of the Building (collectively "CAM"), which include but
are not limited to electric, water and sewer charges, snow and ice
removal from sidewalks and parking areas, trash removal, janitorial
services of common areas and exterior and landscape maintenance,
insurance, real estate taxes, levies and special assessments on the
Building, fuel oil, repair, maintenance and security expenses, and
all utilities except to the extent such are separately metered. The
CAM expenses will be adjusted each year based upon the prior year's
actual CAM expenses and any new CAM expenses, which adjustment may
increase or decrease the Additional Rent with respect to the CAM
expenses.
The CAM charges as Additional Rent shall be due and payable in
monthly installments with the Rent of Three Hundred Seventy Four and
00/100 ($374.00) Dollars. Subject to the provisions of Section 4.1,
if any installment of Base Rent or Additional Rent is not paid within
five (5) days of its due date then Lessor may assess a late charge of
five (5%) percent of the total amount of Base Rent or Additional Rent
then due until the date of payment, which charge shall be immediately
due and payable as further Additional Rent. Payments, when received
by the Lessor, shall be applied first to delinquent rents and late
charges, if any. Base and Additional Rent may be referred to collec-
tively throughout this Lease as "Rent."
4.3 Security Deposit
----------------
Lessee shall pay to Lessor on the execution of this Lease a
refundable Seven Hundred Forty-Eight and 00/100 ($748.00) Dollar
security deposit.
The security deposit is held by Lessor subject to the terms hereof
as debtor not trustee and will be returned to Lessee without interest
thirty (30) days after Lessee has surrendered the Space as per Section
17 of this Lease provided Lessor is reasonably satisfied with the
condition of said Space, reasonable wear and tear excepted, keys
surrendered and Lessee shall not be in default of the terms and con-
ditions of this Lease.
In the event of any delinquent payments or breach of any terms,
covenants and conditions of this Lease or upon each occurrence of an
Event of Default (hereinafter defined in Section 11 of this Lease),
the security deposit will be credited immediately in the amount due
to the Lessor. If all or any part of the security deposit is applied
to an obligation of Lessee hereunder, Lessee shall immediately upon
request by Lessor restore the security deposit to the amount held.
Upon any conveyance by Lessor of its interest under this Lease, the
security deposit shall be delivered by Lessor to Lessor's grantee or
transferee. Upon any such delivery, and after Lessor has provided
Lessee with written notice of such delivery, Lessee hereby releases
Lessor, herein named, of any and all liability with respect to the
security deposit, its
3
application and return, and Lessee agrees to look solely to such
grantee or transferee. It is further understood that this provision
shall also apply to subsequent grantees and transferees.
The security deposit is not an advance Rent payment or Rent deposit
or any measure of damages to Lessor in case of Lessee's default and no
part of the security deposit is or may be used as any Rent payment.
5. UTILITIES
---------
In the event Lessee requires additional utilities or equipment,
the installation and maintenance thereof shall be at Lessee's sole
obligation, provided that such installation shall be subject to Lessor's
written consent which shall not be unreasonably withheld or delayed.
Lessee covenants and agrees that at all times its use of the
utilities and services shall never exceed the capacity provided by
Lessor. Lessor shall not be liable to Lessee or its Agents for any
interruption of or failure to provide electrical service, heating, air
conditioning, or water, or other utility service, or any change in the
quality or character of the utility services or for such no longer
being suitable for Lessee's requirements which is due to any energy
shortage, power failure, or other cause beyond the control of Lessor,
or is required in order to enable Lessor to perform required and
necessary maintenance or repairs within the Building; nor shall any
non-supply or change in supply of any utility service in any way
effect the tenancy or relieve Lessee of any obligation under the terms
of this Lease.
Any telephone, fax, e-mail modem and similar services, including
installation and charges therefor, are the sole responsibility and
expense of Lessee.
6. OPERATING RESPONSIBILITIES OF THE LESSOR
----------------------------------------
Lessor shall be responsible the repair and maintenance of the
following during the Term, the expenses for which are included as CAM
charges and included in Additional Rent, Section 4.2 above.
(i) To keep and maintain in good condition and repair the
roof, exterior walls, structure, foundation, and outside walks and
other structural components of the Building, and surrounding grounds,
and all common areas within and without the Building, and uninsured
losses and damages caused by Lessee and its Agents excluded. The term
"walls" as used in this Section 6 shall not include windows, glass or
plate glass, doors or overhead doors, special fronts or office entries;
(ii) To keep and maintain in good condition and repair the
main plumbing and electrical components leading into and the overall
plumbing and electrical components of the Building, other than those
installed by Lessee and within the Space, the latter to be the respon-
sibility of the Lessee;
(iii) To keep and maintain in good condition and repair, the
parking area, if any;
(iv) To handle the snow and ice removal from the Building,
all parking areas and walk-ways leading up to the Building;
(v) To provide a trash dumpster to the Building to handle
the containment and removal of trash;
(vi) Subject to Section 7(iii) of this Lease, to permit
Lessee's installation of interior and exterior signs identifying the
Lessee and its business, such signs to be reasonable in number, size
and design, subject to Lessor's written approval which shall not be
unreasonably withheld;
4
(vii) To maintain existing exterior lighting to the Building;
and
(viii) To keep and maintain in good condition and repair the
air conditioning and heating systems, including but not limited to all
necessary plumbing, electrical and ventilation ("HVAC Systems"), satis-
factory in size and capacity to meet basic heating and cooling standards
of the Building; provided Lessee shall be responsible for the condition
and repair of the HVAC Systems designated for use in the Space at
Lessee's sole cost as per Section 7(v), the costs of which shall be
excluded from any CAM charges.
7. OPERATING RESPONSIBILITIES OF LESSEE
------------------------------------
Lessee shall be responsible at its sole expense for the following
during the Term:
(i) To Use the Space in a proper, safe and careful manner;
(ii) To make and pay for all necessary alterations and
improvements to the Space, which Lessee has the right to do for Lessee's
own purposes, which shall be made at Lessee's expense; Lessee shall
obtain Lessor's prior written approval for any alterations and
improvements; all such work shall be done at such time and in such
manner as shall minimize and inconvenience to other occupants of the
Building. As a condition precedent to Lessor's consent, Lessee shall
deliver to Lessor written plans and specifications for all work and
written plans and specifications for all heating, ventilating and air
conditioning. Lessor shall have the right to approve any contractor to
be used by Lessee in connection with any approved alterations and im-
provements to the Space. Lessee shall comply with all governmental
rules and regulations in connection with such work. Lessee may remove
furniture, fixtures, and movable improvements installed within the Space
at the expiration of the Lease; Lessee shall promptly repair any damage
to the Space and the Building as a result of such removal, other than
normal wear and tear.
Notwithstanding anything herein to the contrary, the Lessee
shall not make structural alterations or additions to the Building or
the Space, nor erect or paint any sign or other identification on any
window or part of the Building, except as provided in Sections 6(vi) and
7, provided Lessor consents thereto in writing. All structural altera-
tions or improvements made by Lessee shall be at Lessee's sole cost and
expense and shall become the property of the Lessor at the termination of
this Lease; or alternatively, at Lessor's option and request, Lessee shall
remove such alterations and improvements and be subject to Section 8.1.
Lessee shall not permit any mechanic's liens, or similar liens,
to remain upon the Building or the Space for labor and material furnished
to Lessee or claimed to have been furnished to Lessee in connection with
work of any character performed or claimed to have been performed at the
direction of Lessee and shall cause any such lien to be released and an
instrument evidencing discharge of same to be recorded forthwith without
any cost to Lessor. Lessee shall indemnify and save Lessor harmless from
all injury, loss, claims, liens or damage to any person or property
occasioned by or arising from such work. If Lessor incurs any costs and
expenses, including reasonable attorney's fees, then Lessee shall pay the
Lessor that sum so incurred as Additional Rent.
(iii) To provide janitorial services and supplies for the
Space, trash removal from the Space, and maintain the Space in good
condition and repair. All refuse and rubbish must be placed inside
the dumpster, not on top or outside around the dumpster. In addition,
Lessee shall pay to Lessor the cost of removal from the Building and
the Space of any of Lessee's refuse and rubbish which exceeds the
refuse and rubbish usually attendant upon the Use of such Space. Such
excess refuse removal charges
5
will be billed to the Lessee at the end of the month in which incurred
and is due and payable as Additional Rent.
(iv) Installation of any signs, subject to Section 6(vi),
shall be at the sole expense of the Lessee; and Lessee shall be respon-
sible for the removal of all such signs at the termination of this
Lease and any expenses therefor as well as repairing any damage to the
Building and Space as a result of such removal; and
(v) Subject to Lessor's obligations in Section 6, Lessee at
its expense shall repair, replace and maintain in good condition all
portions of the Space and all areas, improvements and systems exclusively
serving the Space, including, without limitation, dock and loading areas,
truck doors, plumbing, water, and sewer lines up to points of common
connection, fire sprinklers and fire protection systems, entries, doors,
ceilings and roof membrane, windows, interior walls, and the interior
side of demising walls, and heating, ventilation and air conditioning
systems. Such repair and replacements include capital expenditures and
repairs whose benefit may extend beyond the Term and any Renewal Period.
Heating, ventilation and air conditioning systems and other mechanical
and Building systems serving the Space shall be maintained at Lessee's
expense pursuant to maintenance service contracts entered into by Lessee
or, at Lessor's election, by Lessor. The scope of services and con-
tractors under such maintenance contracts shall be reasonably approved by
Lessor. If Lessee fails to perform any repair or replacement for which
it is responsible, Lessor may perform such work and be reimbursed by
Lessee within 10 days after demand therefor, or alternatively, at the
sole discretion of the Lessor, be included as Additional Rent for the
month immediately succeeding the month in which such charges, costs and
expenses were incurred. Subject to Sections 14 and 15, Lessee shall
bear the full cost of any repair or replacement to any part of the
Building that results from damage caused by Lessee or its Agents.
8. NEGATIVE COVENANTS OF LESSEE
----------------------------
8.1 Waste, Damage, or Injury to Space; Restoration. No waste,
----------------------------------------------
damage or injury to the Space shall be committed, and at the end of the
Term, the Space shall be restored to the same condition in which it was
at the commencement of the Term, unless otherwise agreed to in writing
by the Lessor, and the cost of said restoration shall be paid by
Lessee, which cost shall be treated as Additional Rent due and owing
under the terms of this Lease. This Section 8.1 is subject to the
exceptions of ordinary wear and tear.
8.2 Lawful Possession, Fire Precautions, Machinery Weights. Lessee
------------------------------------------------------
shall not carry on any unlawful or immoral business in or about the
Space, and shall not carry on any business which will endanger the
Building from fire or cause the forfeiture of any fire insurance, and
Lessee will indemnify Lessor for and replace lost insurance and/or any
deductible under existing insurance policy if caused by Lessee. Lessee
shall not operate any machinery or equipment that may be harmful to the
Building or disturbing to other occupants of the Building, nor place
anything in any portion of the Space with such weight that is beyond
the safe carrying capacity of the Building. Any violation will be
grounds for immediate eviction and deemed a material breach of the
Lease.
8.3 Vacation. Lessee shall neither vacate nor desert the Space
--------
during the Term nor permit the Space to be empty and unoccupied.
8.4 Assigning, etc. by Lessee. Lessee shall not have the
-------------------------
privilege of assigning or subletting the Space, or mortgaging any
interest it may have by virtue of this Lease; provided, however,
Lessee may assign or sublet the Space upon prior written consent of
the Lessor, and Lessee shall be responsible for all costs and expenses,
including attorney's fees, with respect to Lessor's review and con-
sideration of any such proposed assignment or subletting; and provided
nothing herein shall require Lessor to consent to
6
such assignment or subletting, and should such consent be granted, Lessee
shall continue to be responsible for all the terms, conditions and
provisions of the Lease, including actions of the sublessee or assignee.
8.5 Encumbrance. The Lessee shall not, by any act or omission,
-----------
encumber the title of the Lessor nor shall the interest or estate of the
Lessor be in any way subject to any claim by way of lien or encumbrance,
whether claimed by operation of law or by virtue of any express or
implied contract by Lessee. Lessee will hold harmless the Lessor
against any such claims. Any such claims may be charged against the
security deposit in accordance with Section 4.3.
8.6 Building Security. Lessee and Lessee's Agents shall use
-----------------
their best efforts in maintaining the security of the Building,
including, if Lessee or Lessee's Agents remain in the Building after
6 p.m., and upon leaving the Building, locking outside access doors for
which they have a key, insuring all doors and windows are closed in the
Space, turning out all lights in hallways and in the Space, and turning
back the temperature for any air conditioning and/or heat pumps.
8.7 Conduct. Lessee shall not conduct or give notice of any
-------
auction, liquidation, or going out of business sale at the Space.
Lessee shall not permit any objectionable or unpleasant odors, smoke,
dust, gas, noise, or vibrations to emanate from the Space, or take any
other action that would constitute a nuisance or would disturb,
unreasonably interfere with, or endanger Lessor or any tenants of the
Building. Outside storage, including without limitation, storage of
trucks and other vehicles, is prohibited. The Space shall not be used
as a place of public accommodation under the Americans With Disabili-
ties Act or similar state statutes or local ordinances or any
regulations promulgated thereunder, all as may be amended from time
to time. If any increase in the cost of any insurance at the Space
or the Building is caused by the Lessee's Use of the Space, or because
Lessee vacates the Space, then Lessee shall pay the amount of such
increase to Lessor. Any occupation of the Space by Lessee prior to
the commencement date of the Term shall be subject to all obligations
of Lessee under this Lease; provided, however, Lessee shall be entitled
to complete improvements to the Space that are being accomplished in
accordance with the terms of this Lease during the period of December
1 to December 31, 1998.
8.8 Parking. Lessee acknowledges the parking adjacent to and for
-------
the Building is limited and is available to all tenants, including
Lessee, the Lessor and their invitees, and such limited parking is on
a first come, first serve basis; and Lessee agrees to use its best
efforts and to so advise and cause its employees, invitees and Agents
to use its and their best efforts to first use on-street parking prior
to attempting to use the limited parking facilities adjacent to the
Building. Lessor shall not be responsible for enforcing any parking
rights of any tenant's against each other or third parties. Lessor has
the right at any time to designate reserved and handicap spaces for its
own use and purposes.
9. LESSOR'S RIGHTS
---------------
9.1 Right of Inspection. It is agreed and understood that Lessor
-------------------
and Lessor's duly authorized agents, employees, representatives and
contractors ("Lessor's Agents") may enter the Space during normal
business hours and at any other reasonable times during the Term, for
the purpose of inspecting and maintaining the Space. Lessor may erect
a suitable sign on the Space and/or Building stating the Space is
available to let or that the Building is available for sale. Lessor
may grant easements, make public dedications, designate common areas
and create restrictions on or about the Space, provided that no such
easement, dedication, designation or restriction materially interferes
with Lessee's Use. At Lessor's request, Lessee shall execute such
instruments as may be necessary for such easements, dedications or
restrictions.
7
9.2 Rules and Regulations. Lessor may from time to time establish
reasonable rules and regulations for the safety, care, and cleanliness
of the Space, and for the preservation of good order therein. Such
rules and regulations shall, when notice thereof is given to Lessee,
form a part of this Lease and to which Lessee shall be bound.
10. RESPONSIBILITIES OF LESSEE
--------------------------
10.1 Damages or Injury to Property. All damages or injuries done
-----------------------------
to the Space or to the HVAC relating to the Space by the Lessee and/or
Lessee's customers, clerks, Agents, visitors, invitees of Lessee, and
individuals for whom Lessee is responsible other than those caused by
ordinary wear and tear, shall be the sole responsibility of Lessee and
shall be repaired by Lessee at its expense. Lessee covenants and agrees
to make such repairs within ten (10) days' written notice given to Lessee
by Lessor, and if Lessee shall neglect to make said repairs or commence
to make the same promptly or complete the same within ten (10) days after
receiving such notice, Lessor shall have the right to make such repairs
at the expense and cost of Lessee, and the amount thereof may be charged
against the security deposit in accordance with Section 4.3 or otherwise
charged directly to Lessee as Additional Rent accruing for the month
following the date of repair.
10.2 Payment of Judgments, etc. Lessee shall bear, pay and dis-
-------------------------
charge, when and as the same become due and payable, all judgments and
lawful claims for damages or otherwise against Lessor, arising from
Lessee's and the Lessee's Agent's, customers', clerks', visitors' and
invitees' use or occupancy of the Space and Lessee will assume the
burden and expense of defending all such suits, whether brought before
or after the expiration of this Lease, and will protect, indemnify and
save harmless Lessor or Lessor's Agents and the public at large, and
Lessee will pay Lessor's reasonable legal fees in bringing an action
against or defending an action caused by Lessee or Lessee's Agents,
customers, clerks, visitors and invitees.
10.3 Discharge of Liability. In consideration of securing this
----------------------
Lease at the above-stated Rent, Lessee does hereby release and discharge
the Lessor and its Agents, and said Lessor's successors and/or assigns,
from any and all liability by reason of any injury, loss and/or damage
to any person or property, caused by any fire, the breaking, bursting,
stoppage and/or leakage of any water pipe, gas pipe, sewer, basin, water
closet, steam pipe, and drain in any part or portion of the Space and/or
any part or portion of the Building, and from all liability for any and
all injury, loss and/or damage caused by the water, gas, steam, waste,
and contents of said water pipes, gas pipes, steam pipes, sewers,
basins, water closets, and drains or the elements or from any kind of
injury, loss, and/or damage which may arise from any other cause in the
Space, on the premises or in the Building.
11. EVENTS OF DEFAULT
-----------------
Each of the following events shall be an event of default ("Event
of Default") by Lessee under this Lease:
(i) Lessee shall fail to pay any installment of Rent or any
other payment required herein when due, and such failure shall continue
for a period of five days from the date such payment was due.
(ii) Lessee shall (A) make a general assignment for the
benefit of creditors; (B) commence any case, proceeding or other action
seeking to have an order for relief entered on its behalf as a debtor or
to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, liquidation, dissolution or composition of it
or its debts or seeking appointment of a receiver, trustee, custodian
or other similar official for it or for all or of any substantial part
of its property (collectively a
8
"proceeding for relief"); (C) become the subject to any proceeding for
relief which is not dismissed within 60 days of its filing or entry; or
(D) be dissolved or otherwise fail to maintain its legal existence.
(iii) Any insurance required to be maintained by Lessee
pursuant to this lease shall be canceled or terminated or shall expire
or shall be materially reduced or changed, except, in each case, as
permitted in this Lease.
(iv) Lessee shall not occupy or shall vacate the Space or
shall fail to continuously operate its business at the Space for the
Use during the Term or Renewal Period, if applicable, whether or not
Lessee is in monetary or other default under this Lease.
(v) Lessee shall attempt or there shall occur any assign-
ment, subleasing or other transfer of Lessee's interest in or with
respect to this Lease except as otherwise permitted in this Lease.
(vi) Lessee shall fail to discharge any lien placed upon
the Space or the Building in violation of this Lease within 30 days
after any such lien or encumbrance is filed against the Space or the
Building.
(vii) Lessee shall fail to comply with any provision of this
Lease other than those specifically referred to in this Section 11, and
except as otherwise expressly provided herein, such default shall
continue for more than 30 days after Lessor shall have given Lessee
written notice of such default.
12. REMEDIES OF LESSOR
------------------
Upon each occurrence of an Event of Default and so long as such
Event of Default shall be continuing, Lessor may at any time thereafter
at its election terminate this Lease and Lessee's right of possession
(but Lessee shall remain liable as hereinafter provided), and/or pursue
any other remedies at law or in equity. Upon the termination of this
Lease and Lessee's right of possession, it shall be lawful for Lessor
to re-enter the Space by summary dispossession proceedings or any other
action or proceeding authorized by law and to remove Lessee and all
persons and property therefrom. If Lessor re-enters the Space, Lessor
shall have the right to keep in place and use, or remove and store, all
of the furniture, fixtures and equipment at the Space.
Upon Lessor's termination of this Lease, Lessor may recover from
Lessee the sum of: all Rent, Additional Rent and all other amounts
accrued hereunder to the date of such termination; the cost of
reletting the whole or any part of the Space, including without
limitation brokerage fees and/or leasing commissions incurred by
Lessor, and costs of removing and storing Lessee's or any other
occupant's property, repairing, altering, remodeling, or otherwise
putting the Space into condition acceptable to a new tenant or tenants,
and all reasonable expenses incurred by Lessor in pursuing its remedies,
including reasonable attorneys' fees and court costs.
If the Space is relet and a sufficient sum shall not be realized
from such reletting [after first deducting therefrom, for retention by
Lessor, the unpaid Rent, Additional Rent and other amounts accrued
hereunder at the time of reletting, the cost of recovering possession
(including reasonable attorneys' fees and costs of suit), all of the
costs and expenses of repairs, changes, alterations, and additions, the
expense of such reletting (including without limitation brokerage fees
and leasing commissions) and the cost of collection of the Rent and
Additional Rent accruing therefrom] to satisfy the Rent provided for in
this Lease to be paid, then Lessee shall immediately satisfy and pay any
such deficiency.
Exercise by Lessor of any one or more remedies hereunder granted or
otherwise available shall not be deemed to be an acceptance of surrender
of the Space and/or a termination of this Lease by Lessor,
9
whether by agreement or by operation of law. Any law, usage, or custom
to the contrary notwithstanding, Lessor shall have the right at all times
to enforce the provisions of this Lease in strict accordance with the
terms hereof; and the failure of Lessor at any time to enforce its rights
under this Lease strictly in accordance with same shall not be construed
as having created a custom in any way or manner contrary to the specific
terms, provisions, and covenants of this Lease or as having modified the
same. Lessee and Lessor further agree that forbearance or waiver by
Lessor to enforce its rights pursuant to this Lease or at law or in
equity, shall not be a waiver of Lessor's right to enforce one or more
of its rights in connection with any subsequent default. A receipt by
Lessor of rent or other payment with knowledge of the breach of any term
or covenant of this Lease shall not be deemed a waiver of such breach, an
no waiver by Lessor of any provision of this Lease shall be deemed to
have been made unless expressed in writing and signed by Lessor. To the
greatest extent permitted by law, Lessee waives the service of notice of
Lessor's intention to re-enter as provided for in any statute, or to
institute legal proceedings to that end, and also waives all right of
redemption in case Lessee shall be dispossessed by a judgment or by
warrant of any court or judge. Any reletting of the Space shall be on
such terms and conditions as Lessor in its sole discretion may determine
(including without limitation a term different than the remaining Term,
rental concessions, alterations and repair of the Space, lease of less
than the entire Space to any tenant and leasing any or all other portions
of the Building before reletting the Space). Lessor shall not be liable,
nor shall Lessee's obligations hereunder be diminished because of,
Lessor's failure to relet the Space or collect Rent due in respect of
such reletting.
13. REMEDIES OF LESSEE
------------------
In the event of a default under the terms, covenants or conditions
of this Lease on the part of the Lessor, Lessee shall notify Lessor in
writing of said default and Lessor shall have thirty (30) days to cure
or commence to cure said default; provided that if the nature of the
default is such that it cannot be reasonably cured within said thirty
(30) days, Lessor shall not be deemed to be in default if it shall
commence performance within said thirty (30) day period and diligently
proceeds to so cure the default thereafter. If Lessor shall not cure
or commence to cure the said default within the thirty (30) day period,
Lessee may not terminate this Lease and vacate the Space, but rather
may only cure the default and deduct reasonable costs and expenses for
such cure from Rent or Additional Rent or any other amounts accrued
hereunder due.
All obligations of Lessee hereunder shall be construed as covenants,
not conditions; and, except as may be otherwise expressly provided in
this Lease, Lessee may not terminate this Lease for breach of Lessor's
obligations hereunder. All obligations of Lessor under this Lease will
be binding upon Lessor only during the period of its ownership of the
Building and not thereafter. The term "Lessor" in this lease shall
mean only the owner, for the time being of the Building, and in the
event of the transfer by such owner of its interest in the Building,
such owner shall thereupon be released and discharged from all obliga-
tions of Lessor thereafter accruing, but such obligations shall be
binding during the Term upon each new owner for the duration of such
owner's ownership. Any liability of Lessor under this Lease shall be
limited solely to its interest in the Building, and in no event shall
any personal liability be asserted against Lessor in connection with
this Lease nor shall any recourse be had to any other property or
assets of Lessor.
14. INSURANCE
---------
14.1 Lessee Insurance. Lessee, at its cost, shall maintain a
----------------
policy of Combined Single Limit Bodily Injury and Property Damage
Insurance during the Term and any Renewal Period, such insurance to
provide protection in the amount of One Million ($1,000,000) Dollars
combined single limit, insuring Lessor and Lessee against any
liability arising out of and in connection with Lessee's Use or
occupancy of the Space. Lessee should also obtain and maintain a
policy or policies of insurance covering loss or
10
damage to the Space, providing protection against all perils included
within the classification of fire, extended coverage, vandalism,
malicious mischief, flood (in the event such is required by a lender
having a lien on the Building), and special extended perils ("All risk"
as such term is used in the insurance industry). Lessee shall also
maintain workmen's compensation insurance with no less than the minimum
limits required by law. The commercial liability insurance policies
shall name Lessor as an additional insured, insure on an occurrence
and not a claims-made basis, contain a hostile fire endorsement and a
contractual liability endorsement and provide primary coverage to
Lessor (any policy issued to Lessor providing duplicate or similar
coverage shall be deemed in excess over Lessee's policies).
14.2 Lessor Insurance. Lessor shall obtain and maintain insurance
----------------
on the Building, primarily a policy of Combined Single Limit Bodily
Injury and Property Damage Insurance insuring against any liability
arising out of the ownership or maintenance of the Building and all
areas appurtenant thereto in an amount not less than combined single
limit of One Million ($1,000,000) Dollars. All such insurance shall
be included as part of the CAM charges to Lessee pursuant to Section
4.2 hereof.
14.3 Reputable Carriers. Insurance required hereunder shall be
------------------
placed with reputable insurance companies. Each party shall deliver to
the other copies of policies of liability insurance required under this
Section 14 or certificates evidencing the existence and amounts of such
insurance. No such policy shall be cancelable or subject to reduction
of coverage or other modification except after thirty (30) days prior
written notice to Lessor or Lessee, as the case may be. Lessor and
Lessee shall, at least thirty (30) days prior to the expiration of such
policies, furnish the other party with renewals or "binders" thereof, or
the other party, after ten (10) days written notice, may order such
insurance, provided such is during and for the Term or any Renewal
Period, and charge the cost thereof to the non-renewing party which
amount shall be payable upon demand. Lessor and Lessee shall not do
or permit to be done anything which shall invalidate the insurance
policies referred to in this Section 14.
14.4 Subrogation. Lessee and Lessor each hereby release and
-----------
relieve the other (which includes the other party's Agents) from any
liability, whether for negligence or otherwise, in connection with
loss covered by any insurance policies which the releasor carries with
respect to the Building and/or the Space or any interest or property
therein or thereon, but only to the extent that such loss is collected
under said insurance policies. Such release is also conditioned upon
the inclusion in the policy of a provision whereby any such release
does not adversely affect such policy or prejudice any right of the
releasor to recover thereunder. Each party's insurance policies shall
include such a provision so long as it is obtainable without extra
cost.
14.5 Business Interruption. Lessor and Lessor's Agents shall not
---------------------
be liable for, and Lessee hereby waives all claims against such parties
for, business interruption and losses occasioned thereby sustained by
Lessee or any person claiming through Lessee resulting from any accident
or occurrence in or upon the Space or the Building from any cause what-
soever, including without limitation, damage caused in whole or in part,
directly or indirectly, by the negligence of Lessor or Lessor's Agents.
15. FIRE OR CASUALTY
----------------
15.1 Substantial Damage; Rent Abatement. In the event that the
----------------------------------
Building or the Space shall be totally or substantially damaged by fire
or other casualty or happening, to the extent that the business of the
Lessee cannot reasonably be conducted therein and if such damage cannot
be or is not repaired, restored, or rebuilt by the Lessor, as the case
may be, to substantially the same condition as it was immediately prior
to such damage or destruction within three (3) months after such damage,
then either the Lessor or Lessee shall have the option of terminating
this Lease by written notice delivered to the other party not later than
thirty (30) days following such failure to rebuild; in either event
Lessee shall immediately vacate and surrender possession of the Space to
Lessor. If neither Lessee nor Lessor elects
11
to terminate this Lease, or if the Building or the Space is not damaged
to the extent that the damage unreasonably interferes with Lessee's Use,
Lessor shall proceed with said repairs with all reasonable diligence,
but in no event shall the repairs exceed ninety (90) days. The Rent
payable hereunder shall entirely xxxxx in case the Space or the
Building is substantially destroyed or so damaged as to render the
Space untenantable or not useable or convenient or in a condition for
its Use, or xxxxx proportionately according to the extent of the injury
or damage sustained by the Building or the Space, if such is not sub-
stantially destroyed or is rendered partially untenantable, until the
Building and the Space shall have been restored, repaired, or rebuilt
and put in proper condition for the Use and occupancy of Lessee.
15.2 Damage for Interruption of Use. Lessor shall not be liable
------------------------------
for any damage, compensation or claim by reason of inconvenience of
annoyance arising from the necessity of making repairs, alterations
and/or additions to any portion of the Space, the interruption in the
Use of the Space, or the termination of this Lease by reason of the
destruction of the Space.
16. ENVIRONMENTAL REQUIREMENTS
--------------------------
Lessee shall not permit or cause any party to bring any Hazardous
Material into the Space or transport, store, use, generate, manufacture
or release any Hazardous Material in or about the Space without Lessor's
prior written consent. Lessee, at its sole cost and expense, shall
operate its business in the Space in strict compliance with all Environ-
mental Requirements and shall remediate in a manner satisfactory to
Lessor any Hazardous Materials released on or from the Building by
Lessee and/or its Agents. Lessee shall complete and certify to dis-
closure statements as requested by Lessor from time to time relating
to Lessee's transportation, storage, use, generation, manufacture, or
release of Hazardous Materials on or about the Space. The term
"Environmental Requirements" means all applicable present and future
statutes, regulations, ordinances, rules, codes, judgments, orders or
other similar enactments of any governmental authority or agency
regulating or relating to health, safety, or environmental conditions
on, under or about the Space or the environment, including without
limitation, the following: the Comprehensive Environmental Response,
Compensation and Liability Act; the Resource Conservation and Recovery
Act; and all state and local counterparts thereto, and any regulations
or policies promulgated or issued thereunder. The term "Hazardous
Materials" means and includes any substance, material, waste, pollutant,
or contaminant listed or defined as hazardous or toxic, under any
Environmental Requirements, asbestos and petroleum, including crude oil
or any fraction thereof, natural gas, or synthetic gas usable for fuel
(or mixtures of natural gas and such synthetic gas). As defined in
Environmental Requirements, Lessee is and shall be deemed to be the
"operator" of Lessee's "facility" and the "owner" of all Hazardous
Materials brought into the space by Lessee and its Agents, and the
wastes, by-products, or residues generated, resulting, or produced
therefrom.
Lessee shall indemnify, defend, and hold Lessor harmless from and
against any and all losses (including, without limitation, diminution
in value of the Space or the Building and loss of rental income from
the Building), claims, demands, actions, suits, damages (including,
without limitation, punitive damages), expenses (including, without
limitation, remediation, removal, repair, corrective action, or
cleanup expenses), and costs (including, without limitation, actual
attorneys' fees, consultant fees or expert fees and including, without
limitation, removal or management of any asbestos brought into the
Space or disturbed in breach of the requirements of this Section 16,
regardless of whether such removal or management is required by law)
which are brought or recoverable against, or suffered or incurred by
Lessor as a result of any release of Hazardous Materials for which
Lessee is obligated to remediate as provided above or any other breach
of the requirements under this Section 16 by Lessee and its Agents,
regardless of whether Lessee had knowledge of such noncompliance. The
obligations of Lessee under this Section 16 shall survive any termina-
tion of this Lease.
12
Lessor shall have access to, and a right to perform inspections and
tests of, the Space to determine Lessee's compliance with Environmental
Requirements, its obligations under this Section 16, or the environ-
mental condition of the Space. Access shall be granted to Lessor upon
Lessor's prior notice to Lessee and at such times so as to minimize, so
far as may be reasonable under the circumstances, any disturbance to
Lessee's operations. Such inspections and tests shall be conducted at
Lessor's expense, unless such inspections or tests reveal that Lessee
has not complied with any Environmental Requirement, in which case
Lessee shall reimburse Lessor for the reasonable cost of such inspection
and tests. Lessor's receipt of or satisfaction with any environmental
assessment in no way waives any rights that Lessor holds against Lessee.
17. SURRENDER
---------
Upon expiration or earlier termination of the Lease in accordance
with its terms, Lessee shall surrender the Space to Lessor in the same
condition as received, broom clean, ordinary wear and tear and casualty
loss and condemnation covered by Sections 15 and 18 excepted. Any
trade fixtures, Lessee-made alterations and property not so removed
by Lessee as permitted or required herein shall be deemed abandoned
and may be stored, removed, and disposed of by Lessor at Lessee's
expense, and Lessee waives all claims against Lessor for any damages
resulting from Lessor's retention and disposition of such property.
All obligations of Lessee hereunder not fully performed as of the
termination of the Lease shall survive the termination of the Lease,
including without limitation, indemnity obligations, payment obliga-
tions with respect to Rent, and all obligations concerning the
condition and repair of the Space.
18. CONDEMNATION
------------
If any part of the Space should be taken or condemned for a public
or quasi-public use, and a part thereof remains which is susceptible
for the Use intended, this Lease shall, as to the part so taken,
terminate as of the date title shall vest in the condemnor, and the
Rent payable hereunder shall be adjusted so that the Lessee shall be
required to pay for the remainder of the Term only such portion of such
Rent at the value of the part remaining after the condemnation bears to
the value of the entire Space at the date of condemnation; but in such
event Lessor shall have the option to terminate this Lease as of the
date when title to the part so condemned vests in the condemnor. If all
the Space, or such part thereof be taken or condemned so that there
does not remain a portion susceptible for occupation hereunder, this
Lease shall thereupon terminate. Whether or not a portion of the Space
is susceptible for the Use intended shall be determined by arbitration
if the parties cannot otherwise agree on said portion. If a part of all
of the Space be taken or condemned, all compensation, except as otherwise
provided in this Section 18, awarded upon such condemnation or taking
shall, go to the Lessor and the Lessee shall have no claim thereto.
19. SUBORDINATION; ASSIGNMENT BY LESSOR
-----------------------------------
The rights and interest of Lessee under this Lease shall be subject
and subordinate to any mortgage that may be placed upon the Space and to
any and all advances to be made thereunder, and to the interest thereon,
and all renewals, replacements, and extensions thereof. Whether this
Lease is dated prior to or subsequent to the date of said mortgage,
Lessee shall execute and deliver whatever instruments may be required
for such purposes and in the event Lessee fails to do so within ten (10)
days after demand in writing, Lessee does hereby make, constitute and
irrevocably appoint Lessor as its attorney-in-fact and in its name,
place and stead so to do. Lessor may assign its interest in this Lease
or any part thereof, and such assignee shall thereupon be deemed Lessor
hereunder.
13
20. QUIET ENJOYMENT
---------------
Lessee, upon paying the Rent and performing the covenants of this
Lease, on its part to be performed, shall and may peaceably and quietly
enjoy the Space for the Term and any duly authorized Renewal Period,
against any person claiming by, through or under the Lessor.
21. SPACE PREPARATION
-----------------
It is understood that the Space shall be rented by the Lessee on an
"as is" basis, and the only Space preparation work that shall be done
shall be the work as outlined on Exhibit A attached to and made a part
of this Lease.
22. AUTHORIZATON
------------
Lessor and Lessee each has all the requisite right, power, legal
capacity and authority, corporate and otherwise, to enter into this
Lease and to assume and perform their respective obligations hereunder.
The execution and delivery of this Lease and the performance by Lessor
and Lessee of their obligations hereunder have been duly authorized by
their respective boards of directors and/or partners, as the case may
be, and this Lease is a binding and enforceable Lease of Lessor and
Lessee according to its terms. The execution, delivery and performance
of this Lease by Lessor and Lessee will not result in any violation of
and will not conflict with, or result in any breach of any of the terms
of or constitute a default under, or constitute an event which with
notice or the passage of time or both would constitute a default under,
any provision of any law to which Lessor or Lessee is subject, any
partnership agreement, the articles of incorporation, and/or by-laws of
any party, or any mortgage, indenture, agreement, instrument, judgment,
decree, or rule or resolution or other restriction to which Lessor or
Lessee is bound. The representations as contained herein are only made
by Lessor and Lessee as to their own corporate acts, articles of
incorporation, by-laws and/or partnership agreements, as the case may
be, and their respective related agreements and regulations and neither
makes any representations as to the other's acts, articles of incorpora-
tion, by-laws, partnership agreements, as the case may be, and related
agreements and regulations.
No action, approval, consent or authorization, including but not
limited to any action, approval or consent of any shareholder, note
holder, partner, or order of any court or governmental agency,
commission, board, bureau or instrumentality, otherwise than as
specifically provided in this Lease, is necessary in order to constitute
this Lease as a valid, binding and enforceable obligation of the parties
hereto in accordance with its terms.
23. ESTOPPEL CERTIFICATES
---------------------
Lessee agrees, from time to time, within 10 days after request of
Lessor, to execute and deliver to Lessor, or Lessor's designee, any
estoppel certificate requested by Lessor, stating that this Lease is
in full force and effect, the date to which Rent has been paid, that
Lessor is not in default hereunder (or specifying in detail the nature
of Lessor's default), the termination date of this Lease and such other
matters pertaining to this Lease as may be requested by Lessor.
Lessee's obligation to furnish each estoppel certificate in a timely
fashion is a material inducement to Lessor's execution of this Lease.
No cure or grace period provided in this Lease shall apply to Lessee's
obligations to timely deliver an estoppel certificate. Lessee hereby
irrevocably appoints Lessor as its attorney-in-fact to execute on its
behalf and in its name any such estoppel certificate if Lessee fails to
execute and deliver the estoppel certificate within 10 days after
Lessor's written request thereof.
14
24. WAIVER OF JURY TRIAL
--------------------
LESSEE AND LESSOR WAIVE ANY RIGHT TO TRIAL BY JURY OR TO HAVE A
JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT,
TORT, OR OTHERWISE, BETWEEN LESSOR AND LESSEE ARISING OUT OF THIS LEASE
OR ANY OTHER INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO.
25. LANDLORD'S LIEN/SECURITY INTEREST
---------------------------------
Lessee hereby grants Lessor a security interest, and this Lease
constitutes a security agreement, within the meaning of and pursuant to
the Uniform Commercial Code of the state in which the Space is situated
as to all of Lessee's property situate in, or upon, or used in connec-
tion with the Space (except merchandise sold in the ordinary course of
business) as security for all of Lessee's obligations hereunder,
including without limitation, the obligation to pay Rent. Such person-
alty thus encumbered includes specifically all trade and other fixtures
for the purpose of this Section 25 and inventory, equipment, contract
rights, accounts receivable and the proceeds thereof. In order to
perfect such security interest, Lessee shall execute such financing
statements and file the same at Lessee's expense at the state and
county Uniform Commercial Code filing offices as often as Lessor in
its discretion shall require; and Lessee hereby irrevocably appoints
Lessor its agent for the purpose of executing and filing such financing
statements on Lessee's behalf as Lessor shall deem necessary.
26. FORCE MAJEURE
-------------
Neither Lessor nor Lessee shall be held responsible for delays in
the performance of its obligations hereunder when caused by strikes,
lockouts, labor disputes, acts of God, inability to obtain labor or
materials or reasonable substitutes therefor, and other than and
subject to Section 3.3, governmental restrictions, governmental regu-
lations, governmental controls, delay in issuance of permits, enemy or
hostile governmental action, civil commotion, fire or other casualty,
and other causes beyond the reasonable control of Lessor or Lessee
("Force Majeure"); provided, however, no Force Majeure event shall
relieve Lessee from its obligation to pay Rent, or from its obliga-
tions under Section 3.3, or from other monetary obligations hereunder.
27. NOTICES
-------
All Rent payments, notices, requests, demands and other communi-
cations under this Lease shall be in writing and shall be deemed to
have been duly given on the date of service if served personally on the
party to whom notice is to be given, or on the third day after mailing
if mailed to the party to whom notice is to be given, by first class
mail, registered or certified, postage prepaid, or the next day or
second day if effected by such overnight mail, and properly addressed
as follows:
To Lessor: Dialysis Corporation of America
00 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxx, President
Copy To: Xxxxxxxx X. Xxxxx, Esq.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxxxxxx, XX 00000
15
To Lessee: Wirehead Networking Solutions, Inc.
00 Xxxxxx Xxxxxx, Xxxxx 0X
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxx, President
Copy To:
Any party may change its address for purposes of this Section 27 by
giving the other parties written notice of the new address in the manner
set forth above.
28. BROKERS
-------
Lessor and Lessee each represents and warrants that neither has dealt
with any broker, agent or other person in connection with this transaction
and other than Xxxxxxx Xxxxxxxx, Inc., for whom Lessor is solely respon-
sible, no broker, agent or other person brought about this transaction,
and Lessor and Lessee each agree to indemnify and hold the other harmless
from and against any claims by any broker, agent or other person claiming
a commission or other form of compensation by virtue of having dealt with
Lessor or Lessee, as the case may be, with regard to this leasing trans-
action; and Lessor specifically indemnifies Lessee against any claims
for commissions, fees, costs or other charges by Xxxxxxx Xxxxxxxx, Inc.
29. APPLICABLE LAW
--------------
This Lease shall be construed under the laws of the Commonwealth
of Pennsylvania. If any provision of this Lease, or portion thereof,
or the application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this Lease shall
not be affected thereby and each provision of this Lease shall be valid
and enforceable to the fullest extent permitted by law.
30. LEASE CONTAINS ALL AGREEMENTS
-----------------------------
It is expressly understood by the parties that the whole agreement
between them is embodied in this Lease (executed in duplicate) and that
no part or items are omitted, unless the terms are hereinafter modified
by written agreement(s).
31. SUCCESSORS
----------
This Lease shall be binding upon the parties hereto and their
respective successors and/or assigns.
32. HEADINGS NO PART OF LEASE
-------------------------
Any headings preceding the text of the several Sections and
Subsections hereof are inserted solely for convenience of reference
and shall not constitute a part of this Lease not shall they affect
its meaning, construction or effect.
33. NO ESTATE IN REALTY
-------------------
This Lease shall create the relationship of Lessor and Lessee
between the parties hereto; no estate shall pass out of Lessor. Lessee
has no interest subject to levy or sale, and Lessee's interest, which
is Use of the Space upon payment of the Rent and not being in default
of this Lease, is not assignable.
16
34. EFFECT OF TERMINATION OF LEASE
------------------------------
No termination of this Lease prior to the normal ending thereof, by
lapse of time or otherwise, shall affect Lessor's right to collect Rent
for the period prior to termination thereof or for any indemnifications
of Lessee to Lessor as contained herein.
35. COUNTERPARTS
------------
This Lease may be executed in several counterparts and each such
counterpart shall be deemed an original, and all counterparts shall
constitute a single original Lease.
IN WITNESS WHEREOF, the parties hereto have each caused this instru-
ment to be signed by their respective officers thereunto duly authorized,
all on the date and year first above written.
DIALYSIS CORPORATION OF AMERICA
/s/ Xxxx Xxxxxxxxx 1/14/99
By:---------------------------------
XXXX XXXXXXXXX, President
WIREHEAD NETWORKING SOLUTIONS, INC.
/s/ Xxxx Xxxxxx 1/14/99
By:---------------------------------
XXXX XXXXXX, President
GUARANTY
In consideration of and as a material basis for Dialysis Corporation
of America ("Lessor") entering into a Lease of which this Guaranty is a
part with Wirehead Networking Solutions, Inc. ("Lessee") for the Space
located at 00 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxx, Xxxx Xxxxxx,
President of Lessee and Xxxxxx Xxxx, Vice President of Lessee (individu-
ally and collectively referred to as "Guarantor"), jointly and severally,
hereby guarantee to Lessor the strict performance of and observance by
Lessee of all the agreements, provisions, terms, conditions, covenants
and rules in the Lease. Guarantor agrees to waive all notices when
Lessee is not paying Rent or not otherwise observing and complying with
all the provisions, terms, conditions and covenants of the Lease.
Guarantor agrees to be equally liable with Lessee so that the Lessor may
xxx the Guarantor directly without first suing Lessee. Guarantor
further agrees that this Guaranty shall remain in full force and effect
even if the Lease is renewed or is not renewed, changed or extended in
any way and even if Lessor has to make a claim against Guarantor.
Lessor and Guarantor agree to waive trial by jury in any action,
proceeding or counterclaim brought against the other on any matters
concerning the Lease and this Guaranty.
XXXX XXXXXX
/s/ Xxxx Xxxxxx
By:---------------------------------
XXXX XXXXXX, Individually
XXXXXX XXXX
/s/ Xxxxxx Xxxx
By:---------------------------------
XXXXXX XXXX, Individually
17
EXHIBIT A
SPECIFICATIONS OF SPACE
1. Lessor reinstate electric for Space
EXHIBIT B
TENANT SUBORDINATION AGREEMENT
THIS TENANT SUBORDINATION AGREEMENT made as of the 1 day of
December 1998, by and between WIREHEAD NETWORK SOLUTIONS, a Pennsyl-
vania corporation (the "Tenant") and Mercantile-Safe Deposit and
Trust Company, a Maryland banking institution (the "Bank").
WHEREAS, the Tenant is the lessee under a certain lease (the "Lease")
dated December 21, 1998 from Dialysis Corporation of America, a Florida
corporation (the "Landlord"), to Tenant, of certain real property,
together with the improvements thereon, known as 00 Xxxxxx Xxxxxx,
located in Lemoyne, Cumberland County, Pennsylvania, as more particu-
larly described in the Lease (the "Premises");
LEASE COMMENCEMENT DATE 1-1-1999
WHEREAS, the Bank has made a loan to Landlord and secured said loan
by a Mortgage and Security Agreement dated November 30, 1988 on the
Premises (the "Mortgage"); and
WHEREAS, at the request of the Landlord and in consideration of the
making of said loan by the Bank, the Tenant has agreed to subordinate the
Lease to the Mortgage.
NOW, THEREFORE, THIS SUBORDINATION AGREEMENT WITNESSETH, that for
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree and covenant as follows:
1. Tenant hereby acknowledges and agrees that the Lease is and shall
be (i) subordinate to the Mortgage, and (ii) subject and inferior to the
Mortgage.
2. Should the Premises be transferred to any person or party other
than the Landlord by reason of foreclosure of or other proceedings
brought pursuant to or under the Mortgage, Tenant shall attorn to and
be bound to said transferee under all of the terms, covenants and con-
ditions of the Lease for the remaining balance of the term thereof and
any extensions or renewals thereof, with the same force and effect as
if the transferee was the lessor under the Lease.
3. Unless Tenant is in default under the Lease, the Lease shall
not be terminated, nor shall Tenant's use, possession or enjoyment of
the Premises be interfered with, by reason of any foreclosure
proceeding or other action brought pursuant to or under the Mortgage.
4. Each party hereto does hereby agree to execute, acknowledge and
deliver to the other such further instruments as may be necessary to
effectuate the purposes of this subordination, attornment and non-
disturbance.
WITNESS the following hands and seals as of the day and year first
above written.
WITNESS: TENANT:
WIREHEAD NETWORK SOLUTIONS
/s/ Xxxxx X. Xxxxx /s/ Xxxx Xxxxxx
----------------------------- By:---------------------------------
XXXX XXXXXX, PRESIDENT
(SEAL)
WITNESS: MERCANTILE-SAFE DEPOSIT AND
TRUST COMPANY
----------------------------- By:---------------------------------
XXXXXXX X. XXXXXX, Assistant
Vice President
(SEAL)
ACKNOWLEDGED AND AGREED this 22nd day of December, 1998.
WITNESS: DIALYSIS CORPORATION OF AMERICA
/s/ Xxxxxxxx Xxxx /s/ Xxxx Xxxxxxxxx
----------------------------- By:---------------------------------
XXXXXX X. XXXXXXXXX, President
(SEAL)
STATE OF PENNSYLVANIA, COUNTY of DAUPHIN, to wit:
I HEREBY CERTIFY, that on this 21st day of December, 1998, before
me, the undersigned Notary Public of the State of PA, personally
appeared XXXX XXXXXX, who acknowledged himself to be the PRESIDENT of
WIREHEAD NETWORK SOLUTIONS, known to me (or satisfactorily proven) to
be the person who executed the foregoing Subordination Agreement and
acknowledged that he executed the same for the purposes therein
contained by signing the name of the said Corporation, by himself as
PRESIDENT.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxxx X. Xxxxx
------------------------------
Notary Public
NOTARIAL SEAL My Commission Expires:
Xxxxx X. Xxxxx, Notary Public 0-00-00
Xxxxxxxxxx, Xxxxxxx Xxxxxx, XX ------------------------------
My Commission Expires January 26, 0000
XXXXX XX XXXXXXXX, XXXX XX XXXXXXXXX, to wit:
I HEREBY CERTIFY, that on this day of , 19 ,
---- --------------- ---
before me, the undersigned Notary Public of the State of Maryland,
personally appeared XXXXXXX X. XXXXXX, who acknowledged himself to be
the ASSISTANT VICE PRESIDENT of MERCANTILE-SAFE DEPOSIT AND TRUST
COMPANY, known to me (or satisfactorily proven) to be the person who
executed the foregoing Subordination Agreement and acknowledged that
he executed the same for the purposes therein contained by signing the
name of the said company, by himself as ASSISTANT VICE PRESIDENT.
WITNESS WHEREOF, I hereunto set my hand and official seal.
------------------------------
Notary Public
My Commission Expires:
------------------------------
STATE OF PA, Cumberland of County, to wit:
I HEREBY CERTIFY, that on this 22nd day of December, 1998, before
me, the undersigned Notary Public of the State of PA, personally appeared
XXXXXX X. XXXXXXXXX, who acknowledged himself to be the PRESIDENT of
DIALYSIS CORPORATION OF AMERICA, known to me (or satisfactorily proven)
to be the person who executed the foregoing Subordination Agreement and
acknowledged that he executed the same for the purposes therein
contained by signing the name of the said Corporation, by himself as
PRESIDENT.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxx Xxx X. Xxxx
------------------------------
Notary Public
Notarial Seal My Commission Expires:
Xxxx Xxx X. Xxxx, Notary Public October 25, 0000
Xxxxxxx Xxxx, Xxxxxxxxxx Xxxxxx ------------------------------
My Commission Expires October 25, 1999
Member, Pennsylvania Association of Notaries
