Exhibit 10.27
AGREEMENT OF LEASE
between
LIBERTY PROPERTY LIMITED PARTNERSHIP
("LANDLORD")
and
Measurement Specialties, Inc.
("TENANT")
for
000 Xxxx Xxxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx Xxxxxxxx
Xxxxxxx Xxxxxx
Xxxxx, Xxxxxxxxxxxx 00000
LEASE AGREEMENT
(Multi-Tenant Office)
INDEX
SECTION SECTION PAGE
------- ------- ----
1. Summary of Terms and Certain Definitions............................. 1
2. Premises............................................................. 2
3. Acceptance of Premises............................................... 2
4. Use; Compliance...................................................... 2
5. Term................................................................. 2
6. Minimum Annual Rent.................................................. 3
7. Operation of Property; Payment of Expenses........................... 3
8. Signs................................................................ 4
9. Alterations and Fixtures............................................. 5
10. Mechanics' Liens..................................................... 5
11. Landlord's Right to Relocate Tenant; Right of Entry.................. 5
12. Damage by Fire or Other Casualty..................................... 5
13. Condemnation......................................................... 6
14. Non-Abatement of Rent................................................ 6
15. Indemnification of Landlord.......................................... 6
16. Waiver of Claims..................................................... 6
17. Quiet Enjoyment...................................................... 6
18. Assignment and Subletting............................................ 6
19. Subordination; Mortgagee's Rights.................................... 7
20. Recording; Tenant's Certificate...................................... 7
21. Surrender; Abandoned Property........................................ 8
22. Curing Tenant's Defaults............................................. 8
23. Defaults - Remedies.................................................. 8
24. Representations of Tenant............................................ 9
25. Liability of Landlord................................................ 9
26. Interpretation; Definitions.......................................... 10
27. Notices.............................................................. 10
28. Security Deposit..................................................... 11
RIDER(S)
29. PA Additional Remedies...................................................R-1
30. OPTION TO EXTEND TERM....................................................R-2
31. TENANT IMPROVEMENTS......................................................R-2
32. ADDITIONAL PROVISIONS RELATED TO PARKING.................................R-2
33. ADDITIONAL PROVISIONS RELATED TO RELOCATION [Section 11(a)]..............R-2
34. ADDITIONAL PROVISIONS RELATED TO RIGHT OF ENTRY [Section 11(b)]..........R-2
THIS
LEASE AGREEMENT is made by and between LIBERTY PROPERTY LIMITED
PARTNERSHIP, a
Pennsylvania limited partnership ("LANDLORD") with its address at
00 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxxxx 00000 and MEASUREMENT
SPECIALTIES, INC., a CORPORATION organized under the laws of the STATE OF NEW
JERSEY ("TENANT") with its address at 0000 XXXXX XXX, XXXXXXX, XX 00000 and is
dated as of the date on which this lease has been fully executed by Landlord and
Tenant.
1. SUMMARY OF TERMS AND CERTAIN DEFINITIONS.
(a) "PREMISES": Approximate rentable square feet: 2,900
(Section 2) Suite: 3005
(b) "BUILDING": Approximate rentable square feet: 73,217
(Section 2) Address: 000 XXXX XXXXXXXXXX XXXX, XXXXX,
XXXXXXXXXXXX 00000
(c) "TERM": TWELVE (12) months plus any partial month from the
(Section 5) Commencement Date until the first day of the first full
calendar month during the term.
(i) "COMMENCEMENT DATE": OCTOBER 1, 2002
(ii) "EXPIRATION DATE": See Section 5
(d) MINIMUM RENT (Section 6) & OPERATING EXPENSES (Section 7)
(i) "MINIMUM ANNUAL RENT": $31,030.00 NNN (THIRTY-ONE THOUSAND
THIRTY AND 00/100 DOLLARS), payable in monthly installments of
$2,585.83 NNN (TWO THOUSAND FIVE HUNDRED EIGHTY-FIVE AND 83/100
DOLLARS), increased as follows:
LEASE YEAR ANNUALLY MONTHLY
---------- -------- -------
2
3
4
5
(ii) ESTIMATED "ANNUAL OPERATING EXPENSES": $26,680.00 (TWENTY-SIX
THOUSAND SIX HUNDRED EIGHTY AND 00/100 DOLLARS), payable in
monthly installments of $2,223.33 (TWO THOUSAND TWO HUNDRED
TWENTY-THREE AND 33/100 DOLLARS), subject to adjustment
(Section 7(a))
(e) "PROPORTIONATE SHARE" (Section 7(a)): 4.0% (Ratio of approximate
rentable square feet in the
Premises to approximate
rentable square feet in the
Building)
(f) "USE" (Section 4): General business office purposes (excluding any
"place of public accommodation").
(g) "SECURITY DEPOSIT" (Section 28): $5,000.00
(h) CONTENTS This lease consists of the Index, pages 1 through 11
containing Sections 1 through 28 and the following, all of
which are attached hereto and made a part of this lease:
RIDER: Sections 29 through 34.
EXHIBITS: "A" - Plan showing Premises
"B" - Commencement Certificate Form
"C" - Building Rules
"D" - Cleaning Schedule
"E" - Estoppel Certificate Form
"F" - Tenant Fit-Out Plans
1
2. PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Premises as shown on attached Exhibit "A" within the Building (the
Building and the lot on which it is located, the "PROPERTY"), together with the
non-exclusive right with Landlord and other occupants of the Building to use
all areas and facilities provided by Landlord for the use of all tenants in the
Property including any lobbies, hallways, driveways, sidewalks and parking,
loading and landscaped areas (the "COMMON AREAS").
3. ACCEPTANCE OF PREMISES. Tenant has examined and knows the condition of the
Property, the zoning, streets, sidewalks, parking areas, curbs and access ways
adjoining it, visible easements, any surface conditions and the present uses,
and Tenant accepts them in the condition in which they now are, without relying
on any representation, covenant or warranty by Landlord. Tenant and its agents
shall have the right, at Tenant's own risk, expense and responsibility, at all
reasonable times prior to the Commencement Date, to enter the Premises for the
purpose of taking measurements and installing its furnishings and equipment;
provided that the Premises are vacant and Tenant obtains Landlord's prior
written consent.
4. USE; COMPLIANCE.
(a) PERMITTED USE. Tenant shall occupy and use the Premises for and only
for the Use specified in Section l(f) above and in such a manner as is lawful,
reputable and will not create any nuisance or otherwise interfere with any
other tenant's normal operations or the management of the Building. Without
limiting the foregoing, such Use shall exclude any use that would cause the
Premises or the Property to be deemed a "place of public accommodation" under
the Americans with Disabilities Act (the "ADA") as further described in the
Building Rules (defined below). All Common Areas shall be subject to Landlord's
exclusive control and management at all times. Tenant shall not use or permit
the use of any portion of the Common Areas for other than their intended use.
(b) COMPLIANCE. From and after the Commencement Date, Tenant shall comply
promptly, at its sole expense, (including making any alterations or
improvements) with all laws (including the ADA), ordinances, notices, orders,
rules, regulations and requirements regulating the Property during the Term
which impose any duty upon Landlord or Tenant with respect to Tenant's use,
occupancy or alteration of, or Tenant's installations in or upon, the Property
including the Premises, (as the same may be amended, the "LAWS AND
REQUIREMENTS") and the building rules attached as Exhibit "C", as amended by
Landlord from time to time, (the "BUILDING RULES"). Provided, however, that
Tenant shall not be required to comply with the Laws and Requirements with
respect to the footings, foundations, structural steel columns and girders
forming a part of the Property unless the need for such compliance arises out
of Tenant's use, occupancy or alteration of the Property, or by any act or
omission of Tenant or any employees, agents, contractors, licensees or invitees
("AGENTS") of Tenant. With respect to Tenant's obligations as to the Property,
other than the Premises, at Landlord's option and at Tenant's expense, Landlord
may comply with any repair, replacement or other construction requirements of
the Laws and Requirements and Tenant shall pay to Landlord all costs thereof as
additional rent.
(c) ENVIRONMENTAL. Tenant shall comply, at its sole expense, with all Laws
and Requirements as set forth above, all manufacturers' instructions and all
requirements of insurers relating to the treatment, production, storage,
handling, transfer, processing, transporting, use, disposal and release of
hazardous substances, hazardous mixtures, chemicals, pollutants, petroleum
products, toxic or radioactive matter (the "RESTRICTED ACTIVITIES"). Tenant
shall deliver to Landlord copies of all Material Safety Data Sheets or other
written information prepared by manufacturers, importers or suppliers of any
chemical and all notices, filings, permits and any other written communications
from or to Tenant and any entity regulating any Restricted Activities.
(d) NOTICE. If at any time during or after the Term, Tenant becomes aware
of any inquiry, investigation or proceeding regarding the Restricted Activities
or becomes aware of any claims, actions or investigations regarding the ADA,
Tenant shall give Landlord written notice, within 5 days after first learning
thereof, providing all available information and copies of any notices.
5. TERM. The Term of this lease shall commence on the Commencement Date and
shall end at 11:59 p.m. on the last day of the Term (the "EXPIRATION DATE"),
without the necessity for notice from either party, unless sooner terminated in
accordance with the terms hereof. At Landlord's request, Tenant shall confirm
the Commencement Date and Expiration Date by executing a lease commencement
certificate in the form attached as Exhibit "B".
6. MINIMUM ANNUAL RENT. Tenant agrees to pay to Landlord the Minimum Annual
Rent in equal monthly installments in the amount set forth in Section 1(d) (as
increased at the beginning of each lease year as set forth in Section 1(d)), in
advance, on the first day of each calendar month during the Term, without
notice, demand or setoff, at Landlord's address designated at the beginning of
this lease unless Landlord designates otherwise; provided that rent for the
first full month shall be paid at the signing of this lease. If the
Commencement Date falls on a day other than the first day of a calendar month,
the rent shall be apportioned pro rata on a per diem basis for the period from
the Commencement Date until the first day of the following calendar month and
shall be paid on or before the Commencement Date. As used in this lease, the
term "LEASE YEAR" means the period from the Commencement Date
2
through the succeeding 12 full calendar months (including for the first lease
year any partial month from the Commencement Date until the first day of the
first full calendar month) and each successive 12 month period thereafter
during the Term.
7. OPERATION OF PROPERTY; PAYMENT OF EXPENSES.
(a) PAYMENT OF OPERATING EXPENSES. Tenant shall pay to Landlord the Annual
Operating Expenses in equal monthly installments in the amount set forth in
Section 1(d)(prorated for any partial month), from the Commencement Date and
continuing throughout the Term on the first day of each calendar month during
the Term, as additional rent, without notice, demand or setoff, provided that
the monthly installment for the first full month shall be paid at the signing of
this lease. Landlord shall apply such payments to the annual operating costs to
Landlord of operating and maintaining the Property during each calendar year of
the Term, which costs may include by way of example rather than limitation:
insurance premiums, fees, impositions, costs for repairs, maintenance, service
contracts, management and administrative fees, governmental permits, overhead
expenses, costs of furnishing water, sewer, gas, fuel, electricity, other
utility services, janitorial service, trash removal, security services,
landscaping and grounds maintenance, and the costs of any other items
attributable to operating or maintaining any or all of the Property excluding
any costs which under generally accepted accounting principles are capital
expenditures; provided, however, that annual operating costs also shall include
the annual amortization (over an assumed useful life of ten years) of the costs
(including financing charges) of building improvements made by Landlord to the
Property that are required by any governmental authority or for the purpose of
reducing operating expenses or directly enhancing the safety of tenants in the
Building generally. The amount of the Annual Operating Expenses set forth in
Section 1(d) represents Landlord's estimate of Tenant's share of the estimated
operating costs during the first calendar year of the Term on an annualized
basis; from time to time Landlord may adjust such estimated amount if the
estimated operating costs increase. Tenant's obligation to pay the Annual
Operating Expenses pursuant to this Section 7 shall survive the expiration or
termination of this lease.
(i) COMPUTATION OF TENANT'S SHARE OF ANNUAL OPERATING COSTS. After
the end of each calendar year of the Term, Landlord shall compute Tenant's share
of the annual operating costs described above incurred during such calendar year
by (A) calculating an appropriate adjustment, using generally accepted
accounting principles, to avoid allocating to Tenant or to any other tenant (as
the case may be) those specific costs which Tenant or any other tenant has
agreed to pay; (B) calculating an appropriate adjustment, using generally
accepted accounting principles, to avoid allocating to any vacant space those
specific costs which were not incurred for such space; and (C) multiplying the
adjusted annual operating costs by Tenant's Proportionate Share.
(ii) RECONCILIATION. By April 30th of each year (and as soon as
practical after the expiration or termination of this lease or at any time in
the event of a sale of the Property), Landlord shall provide Tenant with a
statement of the actual amount of such annual operating costs for the preceding
calendar year or part thereof. Landlord or Tenant shall pay to the other the
amount of any deficiency or overpayment then due from one to the other or, at
Landlord's option, Landlord may credit Tenant's account for any overpayment.
Tenant shall have the right to inspect the books and records used by Landlord in
calculating the annual operating costs within 60 days of receipt of the
statement during regular business hours after having given Landlord at least 48
hours prior written notice; provided, however, that Tenant shall make all
payments of additional rent without delay, and that Tenant's obligation to pay
such additional rent shall not be contingent on any such right.
(b) IMPOSITIONS. As used in this lease the term "impositions" refers to
all levies, taxes, (including sales taxes and gross receipt taxes) and
assessments, which are applicable to the Term, and which are imposed by any
authority or under any law, ordinance or regulation thereof, or pursuant to any
recorded covenants or agreements, and the reasonable cost of contesting any of
the foregoing, upon or with respect to the Property or any part thereof, or any
improvements thereto. Tenant shall pay to Landlord with the monthly payment of
Minimum Annual Rent any imposition imposed directly upon this lease or the Rent
(defined in Section 7(g)) or amounts payable by any subtenants or other
occupants of the Premises, or against Landlord because of Landlord's estate or
interest herein.
(i) Nothing herein contained shall be interpreted as requiring Tenant
to pay any income, excess profits or corporate capital stock imposed or assessed
upon Landlord, unless such tax or any similar tax is levied or assessed in lieu
of all or any part of any imposition or an increase in any imposition.
(ii) If it shall not be lawful for Tenant to reimburse Landlord for
any of the impositions, the Minimum Annual Rent shall be increased by the amount
of the portion of such imposition allocable to Tenant, unless prohibited by law.
(c) INSURANCE.
(i) PROPERTY. Landlord shall keep in effect insurance against loss or
damage to the Building or the Property by fire and such other casualties as may
be included within fire, extended coverage and special form insurance covering
the full replacement
3
cost of the Building (but excluding coverage of Tenant's personal property in,
and any alterations by Tenant to, the Premises), and such other insurance as
Landlord may reasonably deem appropriate or as may be required from
time-to-time by any mortgagee.
(ii) LIABILITY. Tenant, at its own expense, shall keep in effect
comprehensive general public liability insurance with respect to the Premises
and the Property, including contractual liability insurance, with such limits of
liability for bodily injury (including death) and property damage as reasonably
may be required by Landlord from time-to-time, but not less than a combined
single limit of $1,000,000 per occurrence and a general aggregate limit of not
less than $2,000,000 (which aggregate limit shall apply separately to each of
Tenant's locations if more than the Premises); however, such limits shall not
limit the liability of Tenant hereunder. The policy of comprehensive general
public liability insurance also shall name Landlord and Landlord's agent as
insured parties with respect to the Premises, shall be written on an
"occurrence" basis and not on a "claims made" basis, shall provide that it is
primary with respect to any policies carried by Landlord and that any coverage
carried by Landlord shall be excess insurance, shall provide that it shall not
be cancelable or reduced without at least 30 days prior to written notice to
Landlord and shall be issued in form satisfactory to Landlord. The insurer shall
be a responsible insurance carrier which is authorized to issue such insurance
and licensed to do business in the state in which the Property is located and
which has at all times during the Term a rating of no less than A VII in the
most current edition of Best's Insurance Reports. Tenant shall deliver to
Landlord on or before the Commencement Date, and subsequently renewals of, a
certificate of insurance evidencing such coverage and the waiver of subrogation
described below.
(iii) WAIVER OF SUBROGATION. Landlord and Tenant shall have included
in their respective property insurance policies waivers of their respective
insurers' right of subrogation against the other party. If such a waiver should
be unobtainable or unenforceable, then such policies of insurance shall state
expressly that such policies shall not be invalidated if, before a casualty, the
insured waives the right of recovery against any party responsible for a
casualty covered by the policy.
(iv) INCREASE OF PREMIUMS. Tenant agrees not to do anything or fail to
do anything which will increase the cost of Landlord's insurance or which will
prevent Landlord from procuring policies (including public liability) from
companies and in a form satisfactory to Landlord. If any breach of the preceding
sentence by Tenant causes the rate of fire or other insurance to be increased,
Tenant shall pay the amount of such increase as additional rent promptly upon
being billed.
(d) REPAIRS AND MAINTENANCE; COMMON AREAS; BUILDING MANAGEMENT.
(i) Tenant at its sole expense shall maintain the Premises in a neat
and orderly condition.
(ii) Landlord, shall make all necessary repairs to the Premises, the
Common Areas and any other improvements located on the Property, provided that
Landlord shall have no responsibility to make any repair until Landlord receives
written notice of the need for such repair. Landlord shall operate and manage
the Property and shall maintain all Common Areas and any paved areas appurtenant
to the Property in a clean and orderly condition. Landlord receives the right to
make alterations to the Common Areas from time to time.
(iii) Notwithstanding anything herein to the contrary, repairs and
replacements to the Property including the Premises made necessary by Tenant's
use, occupancy or alteration of, or Tenant's installation in or upon the
Property or by any act or omission of Tenant or its Agents shall be made at the
sole expense of Tenant to the extent not covered by any applicable insurance
proceeds paid to Landlord. Tenant shall not bear the expense of any repairs or
replacements to the Property arising out of or caused by any other tenant's use,
occupancy or alteration of, or any other tenant's installation in or upon, the
Property or by any act or omission of any other tenant or any other tenant's
Agents.
(e) UTILITIES.
(i) Landlord will furnish the Premises with electricity, heating and
air conditioning for the normal use and occupancy of the Premises as general
offices between 8:00 a.m. and 6:00 p.m., Monday through Friday (legal holidays
excepted). If Tenant shall require electricity or install electrical equipment
including but not limited to electrical heating, refrigeration equipment,
electronic data processing machines, or machines or equipment using current in
excess of 110 volts, which will in any way increase the amount of electricity
usually furnished for use as general office space, or if Tenant shall attempt to
use the Premises in such a manner that the services to be furnished by Landlord
would be required during periods other than or in addition to business hours
referred to above, Tenant will obtain Landlord's prior written approval and will
pay for the resulting additional direct expense, including the expense resulting
from the installation of such equipment and meters, as additional rent promptly
upon being billed. Landlord shall not be responsible or liable for any
interruption in utility service, nor shall such interruption affect the
continuation or validity of this lease.
4
(ii) If at any time utility services supplied to the Premises are
separately metered, the cost of installing Tenant's meter and the cost of such
separately metered utility service shall be paid by Tenant promptly upon being
billed.
(f) JANITORIAL SERVICES. Landlord will provide Tenant with trash removal
and janitorial services pursuant to a cleaning schedule attached as Exhibit "D".
(g) "RENT." The term "RENT" as used in this lease means the Minimum Annual
Rent, Annual Operating Expenses and any other additional rent or sums payable by
Tenant to Landlord pursuant to this lease, all of which shall be deemed rent for
purposes of Landlord's rights and remedies with respect thereto. Tenant shall
pay all Rent to Landlord within 30 days after Tenant is billed, unless otherwise
provided in this lease, and interest shall accrue on all sums due but unpaid.
8. SIGNS. Landlord, at Landlord's expense, will place Tenant's name and suite
number on the Building standard sign and on or beside the entrance door to the
Premises. Except for signs which are located wholly within the interior of the
Premises and not visible from the exterior of the Premises, no signs shall be
placed on the Property without the prior written consent of Landlord. All signs
installed by Tenant shall be maintained by Tenant in good condition and Tenant
shall remove all such signs at the termination of this lease and shall repair
any damage caused by such installation, existence or removal.
9. ALTERATIONS AND FIXTURES.
(a) Subject to Section 10, Tenant shall have the right to install its
trade fixtures in the Premises, provided that no such installation or removal
thereof shall affect any structural portion of the Property nor any utility
lines, communications lines, equipment or facilities in the Building serving any
tenant other than Tenant. At the expiration or termination of this lease and at
the option of Landlord or Tenant, Tenant shall remove such installation(s) and,
in the event of such removal, Tenant shall repair any damage caused by such
installation or removal; if Tenant, with Landlord's written consent, elects not
to remove such installation(s) at the expiration or termination of this lease,
all such installations shall remain on the Property and become the property of
Landlord without payment by Landlord.
(b) Except for non-structural changes which do not exceed $5000 in the
aggregate, Tenant shall not make or permit to be made any alterations to the
Premises without Landlord's prior written consent. Tenant shall pay the costs of
any required architectural/engineering reviews. In making any alterations, (i)
Tenant shall deliver to Landlord the plans, specifications and necessary
permits, together with certificates evidencing that Tenant's contractors and
subcontractors have adequate insurance coverage naming Landlord and Landlord's
agent as additional insureds, at least 10 days prior to commencement thereof,
(ii) such alterations shall not impair the structural strength of the Building
or any other improvements or reduce the value of the Property or affect any
utility lines, communications lines, equipment or facilities in the Building
serving any tenant other than Tenant, (iii) Tenant shall comply with Section 10
and (iv) the occupants of the Building and of any adjoining property shall not
be disturbed thereby. All alterations to the Premises by Tenant shall be the
property of Tenant until the expiration or termination of this lease; at that
time all such alterations shall remain on the Property and become the property
of Landlord without payment by Landlord unless Landlord gives written notice to
Tenant to remove the same, in which event Tenant will remove such alterations
and repair any resulting damage. At Tenant's request prior to Tenant making any
alterations, Landlord shall notify Tenant in writing, whether Tenant is required
to remove such alterations at the expiration or termination of this lease.
10. MECHANICS' LIENS. Tenant shall pay promptly any contractors and materialmen
who supply labor, work or materials to Tenant at the Property and shall take all
steps permitted by law in order to avoid the imposition of any mechanic's lien
upon all or any portion of the Property. Should any such lien or notice of lien
be filed for work performed for Tenant other than by Landlord, Tenant shall bond
against or discharge the same within 5 days after Tenant has notice that the
lien or claim is filed regardless of the validity of such lien or claim. Nothing
in this lease is intended to authorize Tenant to do or cause any work to be done
or materials to be supplied for the account of Landlord, all of the same to be
solely for Tenant's account and at Tenant's risk and expense. Throughout this
lease the term "MECHANIC'S LIEN" is used to include any lien, encumbrance or
charge levied or imposed upon all or any portion of, interest in or income from
the Property on account of any mechanic's, laborer's, materialman's or
construction lien or arising out of any debt or liability to or any claim of any
contractor, mechanic, supplier, materialman or laborer and shall include any
mechanic's notice of intention to file a lien given to Landlord or Tenant, any
stop order given to Landlord or Tenant, any notice of refusal to pay naming
Landlord or Tenant and any injunctive or equitable action brought by any person
claiming to be entitled to any mechanic's lien.
11. LANDLORD'S RIGHT TO RELOCATE TENANT; RIGHT OF ENTRY.
(a) Landlord may cause Tenant to relocate from the Premises to a
comparable space ("RELOCATION SPACE") within the Building by giving written
notice to Tenant at least 60 days in advance, provided that Landlord shall pay
for all reasonable costs of
5
such relocation. Such a relocation shall not terminate, modify or otherwise
affect this lease except that "Premises" shall refer to the Relocation Space
rather than the old location identified in Section 1(a).
(b) Tenant shall permit Landlord and its Agents to enter the Premises at
all reasonable times following reasonable notice (except in the event of an
emergency), for the purpose of inspection, maintenance or making repairs,
alterations or additions as well as to exhibit the Premises for the purpose of
sale or mortgage and during the last 12 months of the Term, to exhibit the
Premises to any prospective tenant. Landlord will make reasonable efforts not
to inconvenience Tenant in exercising the foregoing rights, but shall not be
liable for any loss of occupation or quiet enjoyment thereby occasioned.
12. DAMAGE BY FIRE OR OTHER CASUALTY.
(a) If the Premises or Building shall be damaged or destroyed by fire or
other casualty, Tenant promptly shall notify Landlord and Landlord, subject to
the conditions set forth in this Section 12, shall repair such damage and
restore the Premises to substantially the same condition in which they were
immediately prior to such damage or destruction, but not including the repair,
restoration or replacement of the fixtures or alterations installed by Tenant.
Landlord shall notify Tenant in writing, within 30 days after the date of the
casualty, if Landlord anticipates that the restoration will take more than 180
days from the date of the casualty to complete, in such event, either Landlord
or Tenant may terminate this lease effective as of the date of casualty by
giving written notice to the other within 10 days after Landlord's notice.
Further, if a casualty occurs during the last 12 months of the Term or any
extension thereof, Landlord may cancel this lease unless Tenant has the right
to extend the Term for at least 3 more years and does so within 30 days after
the date of the casualty.
(b) Landlord shall maintain a 12 month rental coverage endorsement or
other comparable form of coverage as part of its fire, extended coverage and
special form insurance. Tenant will receive an abatement of its Minimum Annual
Rent and Annual Operating Expenses to the extent the Premises are rendered
untenantable as determined by the carrier providing the rental coverage
endorsement.
13. CONDEMNATION.
(a) TERMINATION. If (i) all of the Premises are taken by a condemnation
or otherwise for any public or quasi-public use, (ii) any part of the Premises
is so taken and the remainder thereof is insufficient for the reasonable
operation of Tenant's business or (iii) any of the Property is so taken, and,
in Landlord's opinion, it would be impractical or the condemnation proceeds are
insufficient to restore the remainder of the Property, then this lease shall
terminate and all unaccrued obligations hereunder shall cease as of the day
before possession is taken by the condemnor.
(b) PARTIAL TAKING. If there is a condemnation and this lease has not
been terminated pursuant to this Section, (i) Landlord shall restore the
Building and the improvements which are a part of the Premises to a condition
and size as nearly comparable as reasonably possible to the condition and size
thereof immediately prior to the date upon which the condemnor took possession
and (ii) the obligations of Landlord and Tenant shall be unaffected by such
condemnation except that there shall be an equitable abatement of the Minimum
Annual Rent according to the rental value of the Premises before and after the
date upon which the condemnor took possession and/or the date Landlord
completes such restoration.
(c) AWARD. In the event of a condemnation affecting Tenant, Tenant shall
have the right to make a claim against the condemnor for moving expenses and
business dislocation damages to the extent that such claim does not reduce the
sums otherwise payable by the condemnor to Landlord. Except as aforesaid and
except as set forth in (d) below, Tenant hereby assigns all claims against the
condemnor to Landlord.
(d) TEMPORARY TAKING. No temporary taking of the Premises shall terminate
this lease or give Tenant any right to any rental abatement. Such a temporary
taking will be treated as if Tenant had sublet the Premises to the condemnor
and had assigned the proceeds of the subletting to Landlord to be applied on
account of Tenant's obligations hereunder. Any award for such a temporary taking
during the Term shall be applied first, to Landlord's costs of collection and,
second, on account of sums owing by Tenant hereunder, and if such amounts
applied on account of sums owing by Tenant hereunder should exceed the entire
amount owing by Tenant for the remainder of the Term, the excess will be paid
to Tenant.
14. NON-ABATEMENT OF RENT. Except as otherwise expressly provided as to damage
by fire or other casualty in Section 12(b) and as to condemnation in Section
13(b), there shall be no abatement or reduction of the Rent for any cause
whatsoever, and this lease shall not terminate, and Tenant shall not be
entitled to surrender the Premises.
15. INDEMNIFICATION OF LANDLORD. Subject to Sections 7(c)(iii) and 16, Tenant
will protect, indemnify and hold harmless Landlord and its Agents from and
against any and all claims, actions, damages, liability and expense (including
fees of attorneys, investigators
6
and experts) in connection with loss of life, personal injury or damage to
property in or about the Premises or arising out of the occupancy or use of the
Premises by Tenant or its Agents or occasioned wholly or in part by any act or
omission of Tenant or its Agents, whether prior to, during or after the Term,
except to the extent such loss, injury or damage was caused by the negligence of
Landlord or its Agents. In case any action or proceeding is brought against
Landlord and/or its Agents by reason of the foregoing, Tenant, at its expense,
shall resist and defend such action or proceeding, or cause the same to be
resisted and defended by counsel (reasonably acceptable to Landlord and its
Agents) designated by the insurer whose policy covers such occurrence or by
counsel designated by Tenant and approved by Landlord and its Agents. Tenant's
obligations pursuant to this Section 15 shall survive the expiration or
termination of this lease.
16. WAIVER OF CLAIMS. Landlord and Tenant each hereby waives all claims for
recovery against the other for any loss or damage which may be inflicted upon
the property of such party even if such loss or damage shall be brought about by
the fault or negligence of the other party or its Agents; provided, however,
that such waiver by Landlord shall not be effective with respect to any
liability of Tenant described in Sections 4(c) and 7(d)(iii).
17. QUIET ENJOYMENT. Landlord covenants that Tenant, upon performing all of its
covenants, agreements and conditions of this lease, shall have quiet and
peaceful possession of the Premises as against anyone claiming by or through
Landlord, subject, however, to the exceptions, reservations and conditions of
this lease.
18. ASSIGNMENT AND SUBLETTING.
(a) LIMITATION. Tenant shall not transfer this lease, voluntarily or by
operation of law, without the prior written consent of Landlord which shall not
be withheld unreasonably. However, Landlord's consent shall not be required in
the event of any transfer by Tenant to an affiliate of Tenant which is at least
as creditworthy as Tenant as of the date of this lease and provided Tenant
delivers to Landlord the instrument described in Section (c)(iii) below,
together with a certification of such creditworthiness by Tenant and such
affiliate. Any transfer not in conformity with this Section 18 shall be void at
the option of Landlord, and Landlord may exercise any or all of its rights under
Section 23. A consent to one transfer shall not be deemed to be a consent to any
subsequent transfer. "Transfer" shall include any sublease, assignment, license
or concession agreement, change in ownership or control of Tenant, mortgage or
hypothecation of this lease or Tenant's interest therein or in all or a portion
of the Premises.
(b) OFFER TO LANDLORD. Tenant acknowledges that the terms of this lease,
including the Minimum Annual Rent, have been based on the understanding that
Tenant physically shall occupy the Premises for the entire Term. Therefore, upon
Tenant's request to transfer all or a portion of the Premises, at the option of
Landlord, Tenant and Landlord shall execute an amendment to this lease removing
such space from the Premises, Tenant shall be relieved of any liability with
respect to such space and Landlord shall have the right to lease such space to
any party, including Tenant's proposed transferee.
(c) CONDITIONS. Notwithstanding the above, the following shall apply to
any transfer, with or without Landlord's consent:
(i) As of the date of any transfer, Tenant shall not be in default
under this lease nor shall any act or omission have occurred which would
constitute a default with the giving of notice and/or the passage of time.
(ii) No transfer shall relieve Tenant of its obligation to pay the
Rent and to perform all its other obligations hereunder. The acceptance of
Rent by Landlord from any person shall not be deemed to be a waiver by Landlord
of any provision of this lease or to be a consent to any transfer.
(iii) Each transfer shall be by a written instrument in form and
substance satisfactory to Landlord which shall (A) include an assumption of
liability by any transferee of all Tenant's obligations and the transferee's
ratification of and agreement to be bound by all the provisions of this lease,
(B) afford Landlord the right of direct action against the transferee pursuant
to the same remedies as are available to Landlord against Tenant and (C) be
executed by Tenant and the transferee.
(iv) Tenant shall pay, within 10 days of receipt of an invoice which
shall be no less than $250, Landlord's reasonable attorneys' fees and costs in
connection with the review, processing and documentation of any transfer for
which Landlord's consent is requested.
19. SUBORDINATION; MORTGAGEE'S RIGHTS.
(a) This lease shall be subordinate to any first mortgage or other primary
encumbrance now or hereafter affecting the Premises. Although the subordination
is self-operative, within 10 days after written request, Tenant shall execute
and deliver any further instruments confirming such subordination of this lease
and any further instruments of attornment that may be desired by any such
mortgagee or Landlord. However, any mortgagee may at any time subordinate its
mortgage to this lease, without Tenant's consent,
7
by giving written notice to Tenant, and thereupon this lease shall be deemed
prior to such mortgage without regard to their respective dates of execution
and delivery; provided, however, that such subordination shall not affect any
mortgagee's right to condemnation awards, casualty insurance proceeds,
intervening liens or any right which shall arise between the recording of such
mortgage and the execution of this lease.
(b) It is understood and agreed that any mortgagee shall not be liable to
Tenant for any funds paid by Tenant to Landlord unless such funds actually have
been transferred to such mortgagee by Landlord.
(c) Notwithstanding the provisions of Section 12 and 13 above, Landlord's
obligation to restore the Premises after a casualty or condemnation shall be
subject to the consent and prior rights of Landlord's first mortgagee.
20. RECORDING; TENANT'S CERTIFICATE. Tenant shall not record this lease or a
memorandum thereof without Landlord's prior written consent. Within 10 days
after Landlord's written request from time to time:
(a) Tenant shall execute, acknowledge and deliver to Landlord a written
statement certifying the Commencement Date and Expiration Date of this lease,
that this lease is in full force and effect and has not been modified and
otherwise as set forth in the form of estoppel certificate attached as Exhibit
"E" or with such modifications as may be necessary to reflect accurately the
stated facts and/or such other certifications as may be requested by a
mortgagee or purchaser. Tenant understands that its failure to execute such
documents may cause Landlord serious financial damage by causing the failure of
a financing or sale transaction.
(b) Tenant shall furnish to Landlord, Landlord's mortgagee, prospective
mortgagee or purchaser reasonably requested financial information.
21. SURRENDER; ABANDONED PROPERTY.
(a) Subject to the terms of Sections 9(b), 12(a) and 13(b), at the
expiration or termination of this lease, Tenant promptly shall yield up in the
same condition, order and repair in which they are required to be kept
throughout the Term, the Premises and all improvements thereto, and all
fixtures and equipment servicing the Building, ordinary wear and tear excepted.
(b) Upon or prior to the expiration or termination of this lease. Tenant
shall remove any personal property from the Property. Any personal property
remaining thereafter shall be deemed conclusively to have been abandoned, and
Landlord, at Tenant's expense, may remove, store, sell or otherwise dispose of
such property in such manner as Landlord may see fit and/or Landlord may retain
such property as its property. If any part thereof shall be sold, then Landlord
may receive and retain the proceeds of such sale and apply the same, at its
option, against the expenses of the sale, the cost of moving and storage and
any Rent due under this lease.
(c) If Tenant, or any person claiming through Tenant, shall continue to
occupy the Premises after the expiration or termination of this lease or any
renewal thereof, such occupancy shall be deemed to be under a month-to-month
tenancy under the same terms and conditions set forth in this lease, except
that the monthly installment of the Minimum Annual Rent during such continued
occupancy shall be double the amount applicable to the last month of the Term.
Anything to the contrary notwithstanding, any holding over by Tenant without
Landlord's prior written consent shall constitute a default hereunder and shall
be subject to all the remedies available to Landlord.
22. CURING TENANT'S DEFAULTS. If Tenant shall be in default in the performance
of any of its obligations hereunder, Landlord, without any obligation to do
so, in addition to any other rights it may have in law or equity, may elect to
cure such default on behalf of Tenant after written notice (except in the case
of emergency) to Tenant. Tenant shall reimburse Landlord upon demand for any
sums paid or costs incurred by Landlord in curing such default, including
interest thereon from the respective dates of Landlord's incurring such costs,
which sums and costs together with interest shall be deemed additional rent.
23. DEFAULTS -- REMEDIES.
(a) DEFAULTS. It shall be an event of default:
(i) If Tenant does not pay in full when due any and all Rent:
(ii) If Tenant fails to observe and perform or otherwise breaches any
other provision of this lease;
8
(iii) If Tenant abandons the Promises, which shall be conclusively
presumed if the Premises remain unoccupied for more than 10 consecutive days, or
removes or attempts to remove Tenant's goods or property other than in the
ordinary course of business; or
(iv) If Tenant becomes insolvent or bankrupt in any sense or makes a
general assignment for the benefit of creditors or offers a settlement to
creditors, or if a petition in bankruptcy or for reorganization or for an
arrangement with creditors under any federal or state law is filed by or against
Tenant, or a xxxx in equity or other proceeding for the appointment of a
receiver for any of Tenant's assets is commenced, or if any of the real or
personal property of Tenant shall be levied upon; provided, however, that any
proceeding brought by anyone other than Landlord or Tenant under any bankruptcy,
insolvency, receivership or similar law shall not constitute a default until
such proceeding has continued unstayed for more than 60 consecutive days.
(b) REMEDIES. Then, and in any such event, Landlord shall have the
following rights:
(i) To charge a late payment fee equal to the greater of $100 or 5%
of any amount owed to Landlord pursuant to this lease which is not paid within 5
days after the due date.
(ii) To enter and repossess the Premises, by breaking open locked
doors if necessary, and remove all persons and all or any property therefrom, by
action at law or otherwise, without being liable for prosecution or damages
therefor, and Landlord may, at Landlord's option, make alterations and repairs
in order to relet the Premises and relet all or any part(s) of the Premises for
Tenant's account. Tenant agrees to pay to Landlord on demand any deficiency that
may arise by reason of such reletting. In the event of reletting without
termination of this lease, Landlord may at any time thereafter elect to
terminate this lease for such previous breach.
(iii) To accelerate the whole or any part of the Rent for the
balance of the Term, and declare the same to be immediately due and payable.
(iv) To terminate this lease and the Term without any right on the
part of Tenant to save the forfeiture by payment of any sum due or by other
performance of any condition, term or covenant broken.
(c) GRACE PERIOD. Notwithstanding anything hereinabove stated, neither
party will exercise any available right because of any default of the other,
except those remedies contained in subsection (b)(i) of this Section, unless
such party shall have first given 10 days written notice thereof to the
defaulting party, and the defaulting party shall have failed to cure the default
within such period; provided, however, that:
(i) No such notice shall be required if Tenant fails to comply with
the provisions of Sections 10 or 20(a), in the case of emergency as set forth in
Section 22 or in the event of any default enumerated in subsections (a)(iii) and
(iv) of this Section.
(ii) Landlord shall not be required to give such 10 days notice more
than 2 times during any 12 month period.
(iii) If the default consists of something other than the failure to
pay money which cannot reasonably be cured within 10 days, neither party will
exercise any right if the defaulting party begins to cure the default within the
10 days and continues actively and diligently in good faith to completely cure
said default.
(iv) Tenant agrees that any notice given by Landlord pursuant to
this Section which is served in compliance with Section 27 shall be adequate
notice for the purpose of Landlord's exercise of any available remedies.
(d) NON-WAIVER; NON-EXCLUSIVE. No waiver by Landlord of any breach by
Tenant shall be a waiver of any subsequent breach, nor shall any forbearance by
Landlord to seek a remedy for any breach by Tenant be a waiver by Landlord of
any rights and remedies with respect to such or any subsequent breach. Efforts
by Landlord to mitigate the damages caused by Tenant's default shall not
constitute a waiver of Landlord's right to recover damages hereunder. No right
or remedy herein conferred upon or reserved to Landlord is intended to be
exclusive of any other right or remedy provided herein or by law, but each shall
be cumulative and in addition to every other right or remedy given herein or now
or hereafter existing at law or in equity. No payment by Tenant or receipt or
acceptance by Landlord of a lesser amount than the total amount due Landlord
under this lease shall be deemed to be other than on account, nor shall any
endorsement or statement on any check or payment be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of Rent due, or Landlord's right to
pursue any other available remedy.
9
(e) COSTS AND ATTORNEYS' FEES. If either party commences an action against
the other party arising out of or in connection with this lease, the prevailing
party shall be entitled to have and recover from the losing party attorneys'
fees, costs of suit, investigation expenses and discovery costs, including costs
of appeal.
24. REPRESENTATIONS OF TENANT. Tenant represents to Landlord and agrees that:
(a) The word "TENANT" as used herein includes the Tenant named above as
well as its successors and assigns, each of which shall be under the same
obligations and liabilities and each of which shall have the same rights,
privileges and powers as it would have possessed had it originally signed this
lease as Tenant. Each and every of the persons named above as Tenant shall be
bound jointly and severally by the terms, covenants and agreements contained
herein. However, no such rights, privileges or powers shall inure to the benefit
of any assignee of Tenant immediate or remote, unless Tenant has complied with
the terms of Section 18 and the assignment to such assignee is permitted or has
been approved in writing by Landlord. Any notice required or permitted by the
terms of this lease may be given by or to any one of the persons named above as
Tenant, and shall have the same force and effect as if given by or to all
thereof.
(b) If Tenant is a corporation, partnership or any other form of business
association or entity, Tenant is duly formed and in good standing, and has full
corporate or partnership power and authority, as the case may be, to enter into
this lease and has taken all corporate or partnership action, as the case may
be, necessary to carry out the transaction contemplated herein, so that when
executed, this lease constitutes a valid and binding obligation enforceable in
accordance with its terms. Tenant shall provide Landlord with corporate
resolutions or other proof in a form acceptable to Landlord, authorizing the
execution of this lease at the time of such execution.
25. LIABILITY OF LANDLORD. The word "LANDLORD" as used herein includes the
Landlord named above as well as its successors and assigns, each of which shall
have the same rights, remedies, powers, authorities and privileges as it would
have had it originally signed this lease as Landlord. Any such person or entity,
whether or not named herein, shall have no liability hereunder after it ceases
to hold title to the Premises except for obligations already accrued (and, as to
any unapplied portion of Tenant's Security Deposit, Landlord shall be relieved
of all liability therefor upon transfer of such portion to its successor in
interest) and Tenant shall look solely to Landlord's successor in interest for
the performance of the covenants and obligations of the Landlord hereunder which
thereafter shall accrue. Neither Landlord nor any principal of Landlord nor any
owner of the Property, whether disclosed or undisclosed, shall have any personal
liability with respect to any of the provisions of this lease or the Premises,
and if Landlord is in breach or default with respect to Landlord's obligations
under this lease or otherwise, Tenant shall look solely to the equity of
Landlord in the Property for the satisfaction of Tenant's claims.
Notwithstanding the foregoing, no mortgagee or ground lessor succeeding to the
interest of Landlord hereunder (either in terms of ownership or possessory
rights) shall be (a) liable for any previous act or omission of a prior
landlord, (b) subject to any rental offsets or defenses against a prior landlord
or (c) bound by any amendment of this lease made without its written consent, or
by payment by Tenant of Minimum Annual Rent in advance in excess of one monthly
installment.
26. INTERPRETATION; DEFINITIONS.
(a) CAPTIONS. The captions in this lease are for convenience only and are
not a part of this lease and do not in any way define, limit, describe or
amplify the terms and provisions of this lease or the scope or intent thereof.
(b) ENTIRE AGREEMENT. This lease represents the entire agreement between
the parties hereto and there are no collateral or oral agreements or
understandings between Landlord and Tenant with respect to the Premises or the
Property. No rights, easements or licenses are acquired in the Property or any
land adjacent to the Property by Tenant by implication or otherwise except as
expressly set forth in the provisions of this lease. This lease shall not be
modified in any manner except by an instrument in writing executed by the
parties. The masculine (or neuter) pronoun and the singular number shall include
the masculine, feminine and neuter genders and the singular and plural number.
The word "INCLUDING" followed by any specific item(s) is deemed to refer to
examples rather than to be words of limitation. Both parties having participated
fully and equally in the negotiation and preparation of this lease, this lease
shall not be more strictly construed, nor any ambiguities in this lease
resolved, against either Landlord or Tenant.
(c) COVENANTS. Each covenant, agreement, obligation, term, condition or
other provision herein contained shall be deemed and construed as a separate and
independent covenant of the party bound by, undertaking or making the same, not
dependent on any other provision of this lease unless otherwise expressly
provided. All of the terms and conditions set forth in this lease shall apply
throughout the Term unless otherwise expressly set forth herein.
(d) INTEREST. Wherever interest is required to be paid hereunder, such
interest shall be at the highest rate permitted under law but not in excess of
15% per annum.
10
(e) SEVERABILITY; GOVERNING LAW. If any provisions of this lease shall be
declared unenforceable in any respect, such unenforceability shall not affect
any other provision of this lease, and each such provision shall be deemed to be
modified, if possible, in such a manner as to render it enforceable and to
preserve to the extent possible the intent of the parties as set forth herein.
This lease shall be construed and enforced in accordance with the laws of the
state in which the Property is located.
(f) "MORTGAGE" AND "MORTGAGEE." The word "mortgage" as used herein
includes any lien or encumbrance on the Premises or the Property or on any part
of or interest in or appurtenance to any of the foregoing, including without
limitation any ground rent or ground lease if Landlord's interest is or becomes
a leasehold estate. The word "mortgagee" as used herein includes the holder of
any mortgage, including any ground lessor if Landlord's interest is or becomes a
leasehold estate. Wherever any right is given to a mortgage, that right may be
exercised on behalf of such mortgagee by any representative or servicing agent
of such mortgagee.
(g) "PERSON." The word "person" is used herein to include a natural
person, a partnership, a corporation, an association and any other form of
business association or entity.
27. NOTICES. Any notice or other communications under this lease shall be in
writing and addressed to Landlord or Tenant at their respective addresses
specified at the beginning of this lease, except that after the Commencement
Date Tenant's address shall be at the Premises, (or to such other address as
either may designate by notice to the other) with a copy to any mortgagee or
other party designated by Landlord. Each notice or other communication shall be
deemed given if sent by prepaid overnight delivery service or by certified mail,
return receipt requested, postage prepaid or in any other manner, with delivery
in any case evidenced by a receipt, and shall be deemed received on the day of
actual receipt by the intended recipient or on the business day delivery is
refused. The giving of notice by Landlord's attorneys, representatives and
agents under this Section shall be deemed to be the acts of Landlord; however,
the foregoing provisions governing the date on which a notice deemed to have
been received shall mean and refer to the date on which a party to this lease,
and not its counsel or other recipient to which a copy of the notice may be
sent, is deemed to have received the notice.
28. SECURITY DEPOSIT. At the time of signing this lease, Tenant shall deposit
with Landlord the Security Deposit to be retained by Landlord as cash security
for the faithful performance and observance by Tenant of the provisions of this
lease. Tenant shall not be entitled to any interest whatever on the Security
Deposit. Landlord shall have the right to commingle the Security Deposit with
its other funds. Landlord may use the whole or any part of the Security Deposit
for the payment of any amount as to which Tenant is in default hereunder or to
compensate Landlord for any loss or damage it may suffer by reason of Tenant's
default under this lease. If Landlord uses all or any portion of the Security
Deposit as herein provided, within 10 days after written demand therefor, Tenant
shall pay Landlord cash in amount equal to that portion of the Security Deposit
used by Landlord. If Tenant shall comply fully and faithfully with all the
provisions of this lease, the Security Deposit shall be returned to Tenant after
the Expiration Date and surrender of the Premises to Landlord.
IN WITNESS WHEREOF, and in consideration of the mutual entry into
this lease and for other good and valuable consideration, and intending to be
legally bound, Landlord and Tenant have executed this lease.
Landlord:
LIBERTY PROPERTY LIMITED PARTNERSHIP
By: Liberty Property Trust,
Sole General Partner
8-14-02 By: /s/ Xxxx X. Xxxxxxxxxx
----------------------- --------------------------
Date Signed: Xxxx X. Xxxxxxxxxx
Senior Vice President/Regional Director
Tenant:
MEASUREMENT SPECIALTIES, INC.
8-12-02 By: /s/ Xxxxxx Xxxxxxxx
----------------------- -----------------------
Date Signed: Name: XXXXXX XXXXXXXX
Title: VICE PRESIDENT, GENERAL MANAGER
11
29. PA ADDITIONAL REMEDIES
(a) WARRANT OF ATTORNEY TO RECOVER POSSESSION: When this lease and the Term or
any extension thereof shall have been terminated on account of any default by
Tenant, or when the Term or any extension thereof shall have expired, after
notice and failure to cure as provided in this Lease, Tenant hereby authorizes
any attorney of any court of record of the Commonwealth of
Pennsylvania to
appear for tenant and for anyone claiming by, through or under Tenant and to
confess judgment against all such parties, and in favor of Landlord, in
ejectment and for the recovery of possession of the Premises, for which this
lease or a true and correct copy hereof shall be good and sufficient warrant. If
for any reason after such action shall have been commenced it shall be
determined and possession of the Premises remains in or be restored to Tenant,
Landlord shall have the right for the same default and upon any subsequent
default(s) or upon the termination of this lease or Tenant's right of possession
as herein set forth, to again confess judgment as herein provided for which this
lease or a true and correct copy hereof shall be good and sufficient warrant.
(b) WARRANT OF ATTORNEY FOR MONEY DAMAGES: If Tenant shall default in the
payment of the Rent due hereunder, after notice and failure to cure as provided
in this Lease, Tenant hereby authorizes any attorney of any court of record of
the Commonwealth of
Pennsylvania to appear for Tenant and to confess judgment
against Tenant, and in favor of Landlord, for all sums due hereunder plus
interest, costs and an attorney's collection commission equal to the greater of
10% of all such sums or $1,000, for which this lease or a true and correct copy
hereof shall be good and sufficient warrant. TENANT UNDERSTANDS THAT THE
FOREGOING PERMITS LANDLORD TO ENTER A JUDGMENT AGAINST TENANT WITHOUT PRIOR
NOTICE OR HEARING. ONCE SUCH A JUDGMENT HAS BEEN ENTERED AGAINST TENANT, ONE OR
MORE WRITS OF EXECUTION OR WRITS OF GARNISHMENT MAY BE ISSUED THEREON AFTER
NOTICE TO TENANT AS PROVIDED BY LAW. PURSUANT TO SUCH WRITS LANDLORD MAY CAUSE
THE SHERIFF OF THE COUNTY IN WHICH ANY PROPERTY OF TENANT IS LOCATED TO SEIZE
TENANT'S PROPERTY BY LEVY OR ATTACHMENT. IF THE JUDGMENT AGAINST TENANT REMAINS
UNPAID AFTER SUCH LEVY OR ATTACHMENT, LANDLORD CAN CAUSE SUCH PROPERTY TO BE
SOLD BY THE SHERIFF EXECUTING THE WRITS, OR, IF SUCH PROPERTY CONSISTS OF A DEBT
OWED TO TENANT BY ANOTHER ENTITY, LANDLORD CAN CAUSE SUCH DEBT TO BE PAID
DIRECTLY TO LANDLORD IN AN AMOUNT UP TO BUT NOT TO EXCEED THE AMOUNT OF THE
JUDGMENT OBTAINED BY LANDLORD AGAINST TENANT, PLUS THE COSTS OF THE EXECUTION.
Such authority shall not be exhausted by one exercise thereof, but judgment may
be confessed as aforesaid from time to time as often as any of said rental and
other sums shall fall due or be in arrears, and such powers may be exercised as
well after the expiration of the initial term of this lease and during any
extended or renewal term of this lease and after the expiration of any extended
or renewal term of this lease.
(c) CONTINUING RIGHTS/WAIVER OF ERRORS: The warrants to confess judgment set
forth above shall continue in full force and effect and be unaffected by
amendments to this lease or other agreements between Landlord and Tenant even if
any such amendments or other agreements increase Tenant's obligations or expand
the size of the Premises. Tenant waives any procedural errors in connection with
the entry of any such judgment or in the issuance of any one or more writs of
possession or execution or garnishment thereon.
(d) WAIVER OF NOTICE TO QUIT: PROVIDED THAT TENANT HAS RECEIVED NOTICE OF
DEFAULT AND HAS FAILED TO CURE SAME AS PERMITTED IN THIS LEASE, TENANT KNOWINGLY
AND EXPRESSLY WAIVES THE RIGHT TO RECEIVE ANY FURTHER NOTICE TO QUIT UNDER THE
PENNSYLVANIA LANDLORD TENANT ACT PRIOR TO LANDLORD COMMENCING AN ACTION FOR
REPOSSESSION OF THE PREMISES.
ACKNOWLEDGED AND AGREED By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------------
BY TENANT Its: Vice President, General Manager
----------------------------------------
R-1
30. OPTION TO EXTEND TERM. Provided that Landlord has not given Tenant notice of
default more than two (2) times preceding the Expiration Date, that there then
exists no event of default by Tenant under this lease nor any event that with
the giving of notice and/or the passage of time would constitute a default, and
that Tenant is the sole occupant of the Premises, Tenant shall have the right
and option to extend the Term for one (1) additional period of twelve (12)
months, exercisable by giving Landlord prior written notice, at least six (6)
months in advance of the Expiration Date, of Tenant's election to extend the
Term; it being agreed that time is of the essence and that this option is
personal to Tenant and is non-transferable to any assignee or sublessee
(regardless of whether any such assignment or sublease was made with or without
Landlord's consent) or other party. Such extension shall be under the same terms
and conditions as provided in this lease except as follows:
(a) the additional period shall begin on the Expiration Date and
thereafter the Expiration Date shall be deemed to be the first (1st) anniversary
thereof;
(b) there shall be no further options to extend; and
(c) the Minimum Annual Rent payable by Tenant shall be in the following
amounts:
Lease Year Annual Monthly
---------- ------ -------
2 $ 32,480.00 $ 2,706.67
31. TENANT IMPROVEMENTS. Landlord will perform the improvements depicted on
Exhibit "F" (Tenant Fit-Out Plan).
32. ADDITIONAL PROVISIONS RELATED TO PARKING. The present tenant of the Premises
(Rexam) has five (5) reserved spaced on the Property which are marked by signs
bearing the present tenant's name. Notwithstanding the provisions of Section 2
of this Lease, Tenant shall be entitled to the exclusive use of such five (5)
reserved parking spaces, and Landlord, at Landlord's expense, will cause
Tenant's name to appear on such existing signs in lieu of the name of the
present tenant.
33. ADDITIONAL PROVISIONS RELATED TO RELOCATION [SECTION 11(a)].
(i) Beginning at the end of the first line, replace "within the Building" with
"within 000 X Xxxxxxxxxx Xx, 000 X Xxxxxxxxxx Xx, 000 X Xxxxxxxxxx Xx, 000 X
Xxxxxxxxxx Rd, 000 X Xxxxxx Xx, 000 X Xxxxxx Xx, 000 X Xxxxxx Xx, 0000 Xxxxxxx
Xxxxx Dr, 0000 Xxxxxxx Xxxxx Xx, and 1500/l550 Liberty Ridge Dr".
(ii) In the second line, replace "60" with "90".
(iii) At the end of the second line, between "reasonable" and "costs", insert
"actual documented out-of-pocket".
(iv) Additionally, in the event Landlord cannot find "RELOCATION SPACE" pursuant
to 33(i) through 33(iii) above, Landlord will also pay to Tenant US$l0,000.
34. ADDITIONAL PROVISIONS RELATED TO RIGHT OF ENTRY [SECTION 11(b)]. For
purposes of this lease, the phrase "reasonable notice" at the end of the first
line shall generally be defined as "at least one business day prior".
R-2
