COMMERCIAL LEASE
THIS AGREEMENT of Lease made this 1st day of August, A.D. 1997 Between
XXXX X. XXXXXX ("Lessor"), party of the one part, and XXXXXX XXX MARKETING, INC.
("Lessee"), party of the other part,
Witnesseth, that the Lessor, in consideration of the rents and covenants
hereinafter mentioned, does demise and lease unto the said Lessee premises
situate in the Borough of Xxxxxx, County of Luzerne and State of Pennsylvania,
described as follows, to wit:
All of the ground floor area located in Building 91 of the
Valley Distributing & Storage Co. Complex, being located at 00
Xxxxxx Xxxxx, Xxxxxxx of Xxxxxx, Luzerne County, Pennsylvania
and containing approximately 194,685 square feet (the "Demised
Premises" or "Premises" or "demised premises" or "premises"), as
more particularly shown on Exhibit A annexed thereto and made a
part hereof.
The Premises to be used only for warehouse, cutting and shipping of
products, as well as administrative, general and clerical office uses and other
activities ancillary thereto.
Notwithstanding any provision of the lease to the contrary, Lessee shall
be permitted to use portions of the Demised Premises for the following purposes:
a. the sale in the Demised Premises to Lessee's employees
and business visitors by Lessee or third parties through
(1) vending machines and/or (2) other methods of sale
selected by Lessee which are permitted by law,
providing, however, that in no event may Lessee operate
a retail or wholesale outlet from the Demised Premises;
b. installation, maintenance and operation of the Demised
Premises of (i) electronic data processing equipment and
business machines, and (ii) printing and other
reproducing equipment used for purposes incidental to
the business of Lessee; and
c. installation, maintenance and operation of communication
equipment, such as telephones, computers,.telecopiers,
telex and the like, for purposes incidental to the
business of Lessee; and
d. installation, maintenance and operation of sewing
machines, microdynamics, printing machines and similar
equipment for purposes relating to business of Lessee.
To have and to hold unto the said Lessor, subject to the conditions of
this Agreement, for the ten-n beginning on the 1" day of August, 1997, and
ending on the 30' day of June, 2001.
In consideration of which the said Lessee agrees that it will pay to the
Lessor for the use of said premises, the following rentals:
MONTHLY
TERM BASE RENT RENTAL
August 1, 1997 thru July 31, 1998 $500,000 $41,666.67
August 1, 1998 thru July 31, 1999 $550,000 $45,833.33
August 1, 1999 thru July 31, 2000 $575,000 $47,916.67
August 1, 2000 thru July 31, 2001 $600,000 $50,000.00
Lessee is hereby given an option to renew this Lease for an additional four (4)
year term by giving Lessor at least six (6) months prior written notice of its
intention to renew. If Lessee exercises said option, the rental for the option
period shall be as follows:
MONTHLY
TERM BASE RENT RENTAL
August 1, 2001 thru July 31, 2002 $630,000 $52,500.00
August 1, 2002 thru July 31, 2003 $660,000 $55,000.00
August 1, 2003 thru July 31, 2004 $690,000 $57,500.00
August 1, 2004 thru July 31, 2005 $720,000 $60,000.00
THIS LEASE IS MADE AND ACCEPTED ON THE FOLLOWING CONDITIONS
1. No waste shall be committed; and at the end of the said term the
Demised Premises shall be delivered in as good condition as at the commencement
thereof, ordinary wear and tear and damage by fire, tempest, lightning, the
elements or other casualty and condemnation excepted.
2. The rent reserved shall be promptly paid on the several days and
times herein specified without set-off, deduction or abatement, except as
otherwise set forth herein, at the principal office of the Lessor, 0 Xxxxxx
Xxxxx, Xxxxxx, Xxxxxxxxxxxx.
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3. If the Lessee shall abandon the Premises, it shall be considered
a default.
4. Said Lessee shall not carry on any unlawful or immoral business
in or about the Demised Premises and shall not carry on any business not
expressly permitted herein.
5. Nothing contained in this Lease is intended to prohibit the
permitted business and uses expressly for which the premises are being demised
under this Lease.
6. The Lessee agrees to pay all bills which may be incurred for
light, heat or power used or consumed upon the Demised Premises. The Lessor
shall not be responsible in any way in the event that the supply of heat is cut
off by reason of any cause beyond the control of the Lessor. And the Lessee does
hereby release the Lessor from any damage which may result to him by reason of
the failure of the supply of heat. Should the Lessee fail to pay any bills as
aforesaid, the Lessor shall have the right to pay the same, and the amount as
paid shall be chargeable to the Lessee as additional rent. Lessor represents and
warrants to Lessee the Premises are served by utilities which supply
electricity, water, sanitary sewers, telephone service and natural gas and
heating oil to the Premises.
7. Lessee accepts the Demised Premises as they now are and
undertakes to make all non-structural interior repairs and alterations necessary
to adapt the Demised Premises for the purposes for which they are leased at
Lessee's own expense for which Lessor's consent shall not be required, but must
obtain the prior written consent of Lessor to any structural improvements or
alterations, which consent shall not be unreasonably withheld or delayed.
The Lessee agrees to keep the premises in a good condition of
repair. All refuse of any kind shall be removed from the premises at the cost of
the Lessee at least once a week or oftener, if need be. Should the Lessee fail
to comply with the provisions of this clause of the lease, the Lessor may enter
the premises and make said repairs or remove said refuse and do all other things
as herein provided to be done by the Lessee at the expense of the Lessee, and
said expense thus incurred may also be collected as additional rent under the
lease.
8. Lessee shall be obligated to make all interior non-structural
repairs to the Demised Premises. Lessor, at its sole cost and expense, shall
make all structural repairs, replacements and alterations to the interior and
exterior of the Demised Premises and the building of which it is part, including
the roof, roof deck and roof structure, the exterior masonry or metal walls and
foundations, the gutters and downspouts and the load bearing structural parts of
the Demised Premises, slab floors, and exterior window and door frames. Lessee
shall maintain, replace, alter and repair the sprinkler system located in or
serving the Demised Premises. Lessor shall maintain and repair all damage or
injury to the Demised Premises and Lessee's fixtures, equipment or appurtenances
or personal property of Lessee therein caused by or resulting from carelessness,
act, omission, neglect or improper conduct of Lessor, its servants, employees,
invitees or licensees, at Lessor's sole cost and expense, to the reasonable
satisfaction of Lessee reasonably exercised. Lessee shall maintain, replace,
alter and repair the plumbing and heating systems and equipment located in or
serving the Demised Premises, unless the reason for repair, alteration or
replacement is due to the negligence of Lessor, its agents or employees. To the
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extent that portions of the plumbing and heating systems equipment servicing the
Premises are located outside the Premises, the Lessor shall ensure that Lessee
has prompt access to the same to make repairs.
In the event that the making of such structural repairs or
alterations in the Demised Premises shall render the Demised Premises
untenantable for the conduct of Lessee's business for a period in excess of
three (3) consecutive business days, then Fixed Rent and Additional Rent shall
be abated until Lessee received notice from the Lessor that the premises are
tenantable. Lessor agrees that while exercising such right of access and making
such report or alterations it shall use its best efforts to avoid interfering
with Lessee's conduct of its business at and from the Demised Premises. Lessor
agrees, at its expense, to repair and restore the Demised Premises subsequent to
conducting any repairs or alterations therein to the conditions existing prior
thereto.
If Lessor does not make the structural repairs that are required
to make with due diligence to the Demised Premises, Lessee at its option, shall
be allowed to do this at Lessor's expense. Any failure by Lessee to give notice
to Lessor of the need to repair shall not relieve Lessor of its obligation to
make such repairs if Lessor otherwise obtains knowledge thereof. Lessor agrees
in the making of any repairs, alterations, additions or improvements and will
use its best efforts to minimize interference with Lessee's use and enjoyment of
an access to the Building and the Demised Premises and that Lessee will perform
and complete such repairs or changes with due diligence. Notwithstanding
anything to the contrary contained in this Lease, Lessor shall have an
obligation to make structural repairs and to take any necessary action to
effectuate the restoration of services with respect to the Demised Premises and
Lessor shall proceed with reasonable diligence in performing such obligation.
If, as a result of Lessor's failure to make such structural repairs, or to take
such other action as is required hereunder, Lessee is not able to use the
Demised Premises for three (3) business days, Lessee shall be entitled to an
abatement of Fixed Rent and Additional Rent for that portion of the Demised
Premises which is unusuable until such time as all such repairs have been made
and other necessary actions taken. The abatement shall end upon notice from
Lessor to Lessee that such repairs have been completed and the Demised Premises
are tenantable. In the event that the Demised Premises shall remain untenantable
for a period in excess of fifteen (I 5) consecutive days after the Lessee has
given Lessor notice thereof, then upon notice to Lessor given after the
expiration of such fifteen (15) day period, Lessee may, at the Lessee's option,
terminate this Lease or Lessee may refrain from giving such notice and remain in
occupancy under this Lease while Fixed Rent and Additional Rent remain abated.
9. In the event of the filing of a voluntary petition in
bankruptcy, by the Lessee herein, the Lessor shall have the further right in
said event, to forfeit and terminate this lease. The said forfeiture to be
effected by giving notice in writing to the Lessee herein or to the person then
in charge of the Demised Premises.
In the event of (i) an involuntary filing of a petition in
bankruptcy against Lessee, and/or (ii) issuance of an execution, the provisions
of this Article shall not become operative and no default shall have occurred
under this Lease unless the same is not discharged or dismissed
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within ninety (90) days after its filing or issuance. Furthermore in the event
of the filing of a petition in bankruptcy, whether voluntary or involuntary, by
or against the Lessee or the issuance of an execution out of any court Lessor
may not exercise -an rights under this Article or elsewhere in this Lease to
forfeit and terminate this Lease so long as Lessee is otherwise not in default
beyond the expiration of any notice and grace period in the payment and
performance of Lessee's obligations under this Lease.
10. In the event of any damage to the Demised Premises resulting
from fire or any other cause which is included within the scope of extended
all-risk coverage insurance, however such damage may have been caused, Lessor
and Lessee will look for reimbursement for such damage solely to its respective
insurers as to any loss Sustained by Lessor and Lessee, respectively, for which
Lessor or Lessee, as the case may be, is required to maintain insurance pursuant
to this Lease and as to any such respective loss, Lessor and Lessee each waive
any and all claims, rights for damages and rights of recovery against the other
or any one claiming through or under the other by subrogation or otherwise, to
the extent permitted by law and to the extent that such waiver shall not
constitute a defense to payment under their respective insurance policies.
Lessor and Lessee shall obtain a waiver of subrogation rights and a consent to
the releases contained herein from their respective insurers and shall promptly
notify the other if for any reason such waiver and consent is not so obtainable.
11. Lessee, at its own cost and expense, shall carry General Public
Liability Insurance with respect to the Demised Premises, insuring both Lessor
and Lessee against personal injuries in the amount of at least Three Million
($3,000,000.00) Dollars, and not less than Five Hundred Thousand ($500,000.00)
Dollars for damage to property; and Lessee shall deliver to Lessor a certificate
of the insurance company or companies issuing such insurance evidencing such
coverage, which certificate shall contain a statement to the effect that such
coverage may not be cancelled without at least ten (10) days written notice to
Lessor.
12. Lessor shall maintain Comprehensive General Liability Insurance
for both personal injury and property damage, including contractual liability
coverage, with respect to the common areas and the building (other than the
demised premises) and property in amounts not less than Three Million
($3,000,000.00) Dollars for each occurrence or person and Five Hundred Thousand
($500,000.00) Dollars for damage to property. Each insurance policy shall be
issued by an insurer of recognized responsibility. Each insurance policy shall
be carried in favor of and name both Lessor and Lessee and any other persons
designated by Lessor. The insurance required by this Section may be included in
general coverage under policies that include the coverage of other property in
which Lessor has, or Lessor's affiliates have, an insurable interest. Each
insurance policy or certificate with respect thereto shall be delivered to
Lessee. Each insurance policy shall provide, in effect, that it may not be
cancelled, reduced in amount, or modified by the insurer until at least ten (1
0) days after the insurer shall have notified Lessee in writing.
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13. Lessor is not responsible for any damage to contents of the
Lessee however caused unless due to the gross negligence or willful misconduct
of Lessor, and Lessee shall pay for and maintain its own fire insurance coverage
on its merchandise and equipment.
14. In case of damage by fire or other cause to the Demised
Premises, if the damage is so extensive so as to amount practically to total
destruction of the Demised Premises, or if Lessor shall be unable to rebuild and
restore the same within ninety (90) days after the casualty occurs, then Lessee
may elect within thirty (30) days of such occurrence to terminate this Lease
upon thirty (30) days notice to Lessor, and upon such notice this Lease shall
cease and come to an end, and the rent shall be apportioned to the time of the
damage.) In addition, if such an extensive casualty shall occur at any time
during the last year of the term of this Lease or any renewal ten-n, Lessor may
elect within thirty (30) days of such occurrence to terminate this Lease and not
rebuild or restore the Demised Premises upon thirty (30) days notice to Lessee,
and unless Lessee, within ten (I 0) days after receipt of such notice notifies
Lessor of Lessee's election to exercise any then existing renewal Option to
extend the Lease term, this Lease shall cease and come to an end upon the giving
of Lessor's termination notice, and the rent shall be apportioned to the date of
the damage. In all other events where the Demised Premises are damaged by fire
the Lessor shall promptly repair the damage and to the extent that such damage
has rendered the premises untenantable, in whole or in part, there shall be an
apportionment of the rent until the damage has been repaired.
15. If the Demised Premises shall be partially damaged by casualty
which damage renders the Demised Premises unusable to Lessee, then Lessee shall
be entitled to a total abatement of rent until such damage has been repaired by
Lessor and the Demised Premises are made useable for Lessee. If all repairs
required to be made by Lessor are not made within three months of the date of
damage to the Demised Premises, then Lessee shall have the option to cancel the
Lease upon thirty (30) days prior written notice to Lessor.
16. It is agreed and understood that the Lessor, his heirs, or
assigns, may enter the premises hereby leased at any time during the term, in
the presence of the said Lessee for the purpose of ascertaining whether the said
premises are kept in good order and repair during business hours. Further, that
the Lessor reserves the right to display a "for rent or sale" card upon the said
premises, and to show same to prospective tenants or buyers.
Lessor's right, however, to enter the premises or to show the
same to prospective buyers or tenants may be exercised only at reasonable time
during business hours and upon prior reasonable notice and only in the presence
of a representative of Lessee unless Lessee otherwise authorizes Lessor in
writing or in case of an emergency.
17. All damages or injuries done to the said premises by Lessee
other than those caused by fire and other perils covered by an all-risk casualty
policy and by ordinary wear and tear or by the acts or omission of the Lessor
shall be repaired by the Lessee herein. And the Lessee covenants and agrees to
make or commence making said structural repairs upon five
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days' notice given to him by the Lessor, and if he shall neglect to make said
repairs or commence to make the same promptly or within ten days after said
notice as given to him, the Lessor shall have the right to make the said repairs
at the expense and cost of the Lessee, and the amount thereof may be collected
as additional rent accruing for the month following the date of the said
repairs, and if the said expense is made at the expiration of the term, then the
cost so made may be collected by the landlord as an additional rent for, the use
of the premises during the entire term.
18. Lessee represents and warrants that except as previously
reported to Lessor with respect to garment cleaning solvents used in the
ordinary course of Lessee's business, and small quantities of general cleaning
solvent and other substances customarily used by ordinary garment industry
tenants of manufacturing, warehouse and distribution facilities none of the
goods which it will store with Lessor are hazardous or dangerous materials or
articles, explosives or pesticides (collectively "hazardous substances"), as
defined under and regulated by federal, state or local laws, statutes,
ordinances or regulations (collectively, "environmental regulations"). Except as
set forth in the preceding sentence, Lessor represents and warrants that it will
not store or permit to be stored at the building or the property on which the
building is located any hazardous substances. Lessor represents and warrants
there is no hazardous substances, including without limitation, asbestos or
asbestos containing materials located in the Premises or the building.
19. Lessee hereby accepts notice to quit, remove from, and surrender
up possession of the said Demised Premises to the said Lessor, his heirs or
assigns, at the expiration of the said term, whenever it may be determined by
legal proceedings only, whether by forfeiture or otherwise, without any further
notice to that effect, all further notice being hereby waived. And thereupon the
Lessee shall be a non-tenant, subject to dispossession by the said Lessor by
legal proceedings only, without further notice or process of law, with release
of error, and of damages, and the said Lessor by legal proceedings only may
re-enter the premises and dispossess the Lessee without thereby becoming a
trespasser. And the Lessee hereby waives the benefit of all exemption laws of
this Commonwealth that now are in force or may hereafter be in force, or in any
action or actions that may accrue on this contract, and in any distress or
distress that may be made for collection of the whole of said rent or any part
thereof. Waiving also the benefit of stay of execution, inquisition, extension,
and all errors, in all proceedings arising out of this lease.
20. No showcase, sign or hanging or protruding sign or permanent
obstruction of any kind shall be kept or maintained by the Lessee on the
reservation or sidewalk in front of the Demised Premises, said space to be used
only for purpose of ingress and egress. Notwithstanding the foregoing, during
the term of this Lease, Tenant shall be entitled to maintain its existing sign
on the building in its current location and shall be entitled to remove the sign
which it placed on a nearby shed and place the same on the building.
21. The Lessee will bear, pay and discharge when and as the same
become due and payable all judgments and lawful claims for damages or otherwise
against Lessor arising from its use or occupancy of said leased premises or the
sidewalk in front and side of said premises, and
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will assume the burden and expense of defending all such suits, whether brought
before the expiration of this lease and will protect, indemnify and save
harmless the Lessor, his agents, servants, employees and public at large by
reason of or on- account of the use or misuse of the premises hereby leased or
the sidewalk in front of the said premises, or any part thereof, due to the
negligence of the Lessee or its agents or employees. Lessor shall indemnify,
defend and hold harmless Lessee from and against any and all liabilities,
obligations, damages, penalties, claims, costs, charges and expenses (including,
without limitation, legal fees), suffered or incurred as a result of or in
connection with any negligence or misconduct of Lessor or any other person
claiming under Lessor, or the contractors, agents' employees, invitees or
licensees or Lessor or any such person in or about the Premises or the building
or the adjoining real property.
22. Lessee does hereby release and discharge said Lessor, his heirs
and assigns, from any and all liability for damage that may result from the
bursting, stoppage and leakage of any water pipe, gas pipe, sewer, basin,
water-closet, steam pipe and drain, and from all liability for any and all
damage caused by the water, gas, steam, waste and contents of said water pipes,
gas pipes, sewers, basins, water-closets and drains unless due to the gross
negligence or willful misconduct of Lessor.
23. Each of the following constitutes a default hereunder.
(i) Lessee's failure to pay within ten (10) days after
written notice from the Lessor, the base rent or
additional rent within the period of time provided for
herein after written notice from Lessor;
(ii) Lessee's failure to perform or observe any other
Lessee's obligation under this Lease thirty (30) days
after it receives written notice from Lessor, or in the
case where Lessee's failure to perform or observe any
other Lessee's obligation under this Lease cannot with
due diligence be cured in thirty (30) days, if Lessee
shall not commence such cure within thirty (30) days
after it receives written notice from Lessor and
diligently prosecute such cure to completion;
(iii) Lessee's failure to vacate or stay any of the following
within thirty (30) days after they occur: (A) a petition
in bankruptcy is filed by or against Lessee, (B) Lessee
is adjudicated as bankrupt or insolvent, (C) a receiver,
trustee or liquidator is appointed for all or a
substantial part of Lessee's property, or (D) Lessee
makes an assignment for the benefit of creditors.
Upon the occurrence of any Default, Lessor shall have the right, at
Lessor's option and in addition to all other remedies given under this Lease or
under the law, to elect to do any one or more of the following without further
notice or demand to Lessee:
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(i) terminate this Lease by appropriate legal proceedings,
in which event Lessee shall immediately surrender the
Premises to Lessor; and Lessee shall, and hereby agrees
to, indemnify Lessor for all loss and damage which
Lessor suffers by reason of such termination, including
without limitation, damages in an amount equal to the
total of (1) the actual, out-of-pocket, reasonable costs
of recovering the Premises and all other expenses
incurred by Lessor in connection with Lessee's default;
(2) the unpaid rent earned as of the date of
termination, plus interest at the interest rate
specified; (3) the excess of the total Base Rent and
Additional Rent which Lessor would have received under
this Lease for the remainder of the Term, but discounted
to the then present value using a rate equal to the
prime rate of Mellon Bank, N.A. then in effect, over the
fair market rental value of the Premises including Base
Rent and Additional Rent for the balance of the Tenn as
of the time of such default, discounted to the then
present value using a rate equal to the prime rate of
Mellon Bank, N.A. then in effect; and (4) all other sums
of money and damages owing by Lessee to Lessor; or
(ii) enter upon and take possession of the Premises after
terminating this Lease by appropriate legal proceedings
and without being liable to prosecution or any claim for
damages therefor, and, if Lessor elects, relet the
Premises on such terms as Lessor deems advisable, in
which event Lessee shall pay to Lessor on demand the
actual, commercially reasonable, out-of-pocket cost of
repossession, renovating, repairing, and altering the
Premises for a new tenant or tenants and any deficiency
between the Base Rent and Additional Rent payable
hereunder and the rent paid under such reletting,
payable on the due dates for such rental payments
hereunder; provided, however, that Lessee shall not be
entitled to any excess payments received by Lessor from
such relenting. Lessor's ability or failure to relet the
Premises shall not release or affect Lessee's liability
for Base Rent, Additional Rent or for damages. Lessor
agrees to use diligent efforts to relet the Premises on
commercially reasonable terms and to collect rents due
in accordance with such relenting; or
(iii) enter the Premises without terminating this Lease and
without being liable for prosecution or any claim for
damages therefor and maintain the Premises and repair or
replace any damage thereto or do anything for which
Lessee is responsible hereunder. Lessee shall reimburse
Lessor immediately upon demand for any actual,
commercially reasonable, out-of-pocket expenses which
Lessor incurs in thus effecting Lessee's compliance
under this Lease, and Lessor shall not be liable to
Lessee for any damages with respect thereto, provided
Lessor uses its best efforts to
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minimize interference with Lessee's conduct of its
business in the Premises.
No agreement to accept a surrender of the Premises and no act or
omission by Lessor or Lessor's agents during the Term shall constitute an
acceptance or surrender of the Premises unless made in writing and signed by
Lessor. No re-entry or taking possession of the Premises by Lessor shall
constitute an election by Lessor to terminate this Lease unless a written notice
of such intention is given to Lessee.
No provision of this Lease shall be deemed to have been waived
by Lessor or Lessee, respectively, unless such waiver is in writing and signed
by Lessor or Lessee, respectively. Lessor's acceptance of any rent following
Default hereunder shall not be construed as a waiver of such Default. No custom
or practice which may occur or develop between the parties in connection with
the terms of this Lease shall be construed to waive or lessen Lessor's or
Lessee's right to insist upon strict performance of the terms of this Lease,
without a written notice thereof from the party waiving its right hereunder.
Any rent or other amounts that are not paid when due hereunder
will accrue interest at the rate of the prime rate of Mellon Bank, N.A. (as such
prime rate may change from time to time) plus three percent (3%) per annum (but
in no event in an amount in excess of the maximum rate allowed by law) from the
date on which it was due until the date on which it is paid in full with accrued
interest.
Except as otherwise set forth herein, the rights granted to
Lessor shall be cumulative of every other right or remedy provided in this Lease
or which Lessor may otherwise have at law or in equity or by statute, and the
exercise of one or more rights or remedies shall not prejudice or impair the
concurrent or subsequent exercise of other rights or remedies or constitute a
forfeiture or waiver of rent or damages accruing to Lessor by reason of any
Default under this Lease. Lessee agrees to pay to Lessor all actual,
out-of-pocket, reasonable costs and expenses incurred by Lessor in the
enforcement of this Lease, including all attorneys' fees incurred in connection
with the collection of any sums due hereunder or the enforcement of any right or
remedy of Lessor.
The remedies permitted by this Section shall survive the
termination of this Article.
Lessor agrees that if at any time or times any governmental
authorities or insurance rating bureaus having jurisdiction shall complain that
the Demised Premises or the building of which the same is a part were not
constructed in compliance with any law, ordinance or regulation of any
governmental authority or insurance rating bureau having jurisdiction and shall
request compliance, then, unless and except to the extent that any such
non-compliance is caused by Lessee, Lessor shall, upon receipt of notice of such
complaint, cause such repairs, alterations or other work to be done so as to
bring about the compliance requested. Lessor shall,
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at its sole cost and expense, comply with all laws and requirements of public
authorities and all requirements of insurance bodies requiring structural
repairs or alterations to the real property, building or Premises unless such
repairs or alterations are necessitated by the particular use of the Premises by
Lessee, other than the use permitted by this Lease. Lessor represents and
covenants that (1) the Certificate of Occupancy and all building permits for the
real property, building and the Premises permit the use and occupancy of the
Premises for the Lessee's intended use as contemplated by this Lease and the
Certificate of Occupancy and all building permits for the Premises, the building
and the real property shall not be modified in any way which curtains such use;
(2) such use is permitted by all laws and requirements of public authorities and
all requirements of insurance bodies including, without limitation, zoning laws,
codes, rules and regulations applicable to the real property, the building and
the Premises; and (3) copies of the Certificate of Occupancy for the real
property, Certificate of Occupancy for the building and the Certificate of
Occupancy for the Premises and all building permits for the Premises will be
delivered by Lessor to Lessee as soon as Lessor has obtained the same.
24. Lessor agrees that at all times, except for temporary causes,
beyond the reasonable control of Lessor, there will be free and uninterrupted
access for pedestrian and motor vehicles (including but not limited to tractor
trailer trucks) to and from Yatesville Road to all doors and loading docks and
unloading areas appurtenant to the Demised Premises.
25. The common areas, being the parking areas and access roads on
the property (the "property") on which the Demised Premises is located
(including but not limited to Passan Drive) as shown on the attached plot plan
set forth on Exhibit B annexed hereto and made a part hereof (collectively, the
"common areas"), shall be used for the sole purpose of parking and maneuvering
of vehicles, egress and ingress, and loading and unloading of goods stored at
the Demised Premises or at the building and Lessor shall use its best efforts to
prevent material interference by Lessor or any other tenant at the building or
anyone claiming by, through or under Lessor, with the conduct of Lessee's
permitted Use and business at the Demised Premises. Lessor grants to Lessee the
non-exclusive right and easement to use the common areas and to permit Lessee's
employees, invitees, customers, agents and contractors to use the common areas
for the aforesaid purposes. This right and easement may be exercised only in
common with other occupants of the complex and with Lessor, and their respective
employees, invitees, customers, agents and contractors and Lessor shall not
pen-nit anyone else to use the common areas other than Passan Drive. Lessor's
right to use the common areas shall be solely for the purposes of repairing,
maintaining and inspecting the same; carrying out Lessor's obligations under
this Lease and any other lease or occupancy agreement with respect to the
building; complying with legal and insurance requirements applicable to the
property and showing the property to prospective tenants, occupants, purchasers
and mortgagees of the property.
Lessor further agrees to provide, operate, repair, replace and
maintain during the term of this Lease and any extensions hereof, all of the
common areas (being all parking areas, loading areas, driveways, sidewalks,
drainage and sewer systems, utility pipes, lines and conduits, and service
entrances therein), perform all landscaping, paving, grading and maintain
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lighting facilities sufficient to provide reasonably adequate and continuous
lighting throughout all of the common areas, and to keep the common areas free
of obstruction, clear of debris, water, ice and snow and in a clean condition
for the entire term bf this Lease and any extension thereof.
Throughout the term of this Lease, Lessor shall keep in place
and maintain at least one hundred ninety-eight (198) parking spaces in the areas
in front of the Demised Premises land the exclusive use of the additional
parking area to the west of the Demised Premises, which area shall be properly
graded by Lessor, all as shown on the attached plot plan. Lessor shall ensure
that the exits and entrances to the common areas,'which may contain signs
directing traffic in and out of said parking areas, are kept open and in place
as shown on the attached plot plan. Lessor shall keep said parking areas,
driveways, sidewalks and pedestrian malls lighted at such times during the hours
of darkness as Lessee's business shall be operating at the Demised Premises and
at least one hour thereafter.
26. This Lease and the terms, provisions and conditions contained
herein restate, replace and supersede all prior leases between the parties.
27. Lessee covenants and agrees and will be solely responsible to
maintain the heat in the Demised Premises at a sufficient level to prevent the
sprinkler system from freezing.
28. Lessee further agrees to pay to Lessor as additional rent any
increase or increases in fire insurance premiums upon the Demised Premises due
to an increase in the rate of fire insurance in excess of the rate on the
Demised Premises at the time of making of this Lease, if said increase is caused
by any act or neglect of Lessee or the manner in which Lessee conducts its
business at the Demised Premises.
29. In the event the Demised Premises, or any part of the Demised
Premises, be taken or condemned for public or quasi-public use, this Lease
shall, as to the part so taken, terminate as of the date possession of said
premises shall be vacated or surrendered by Lessee to the condemnor, and the
rent reserved shall xxxxx proportionately to the square feet of leased space
taken or condemned. Lessor shall promptly after such taking restore the Demised
Premises or said building to substantially the same condition as existed prior
to such taking, subject to a reduction in size due to such taking. In addition,
if the entire Demised Premises, or such portion thereof or of any of the common
areas used for parking, loading or access as will render in the Lessee's sole
but reasonable judgment the Demised Premises or such common areas inadequate for
Lessee's purposes, shall be so taken, then in any such event Lessee shall have
the right to terminate this Lease effective on the date of such taking and the
rent shall be prorated to the date thereof. In the event of any taking, Lessee
may claim damages from the condemnor for the taking of the leasehold as well as
consequential damages from the condemnor, such as moving expenses. If Lessor
receives any notice relating to the condemnation of all or part of the Demised
Premises or the building or the common areas, Lessor shall notify Lessee in
writing of said notice within five (5) days after receipt by Lessor of said
notice.
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30. In the event that Lessee remains in possession beyond the term
of this Lease with the consent of Lessor, which consent shall be construed from
silence, this Lease shall remain in effect under the same terms and conditions
except that the term shall be on a month-to-month basis, and may be terminated
by either party upon thirty (30) day's written notice to the other.
31. Lessor, at its own cost and expense, agrees that it will
maintain at all times during the term of this Lease with respect to the Demised
Premises and the building in which it is located, insurance against loss or
damage by fire and the so called extended all-risk coverage casualties,
(including, but not limited to, subsidence coverage). Said insurance shall be
the greater of (x) of the full replacement value of the building and (y) one
hundred (100%) of the insurable value, and, in any event, sufficient insurance
shall be carried so that the insured shall not be a coinsurer. Lessor shall
deliver to Lessee a certificate of the insurance company or companies issuing
such insurance, which shall be duly licensed to do business in the State of
Pennsylvania, evidencing such coverage, which certificate shall contain a
statement to the effect that such coverage may not be cancelled without at least
ten (IO) days written notice to Lessee.
32. Lessee and Lessor each agrees to indemnify and save harmless the
other from and against any and all liability, loss, damages, costs or expense
which Lessor or Lessee, as the case may be, may incur, suffer or be required to
pay by reason of any failure of the other party's representations, agreements
and guarantees contained in this Lease.
33. Lessee agrees that upon the written request of Lessor it will
subordinate this Lease and the lien hereof, from time to time, to the lien of
any present or future mortgage made to a bank, insurance company or similar
financial institution, irrespective of the time of execution or time of
recording of any such mortgage or mortgages, provided that the holder of any
such mortgage agrees not to disturb Lessee's possession of the Demised Premises
or interfere with any of Lessee's rights hereunder so long as no default on the
part of Lessee hereunder shall continue after the giving of notice and passage
of the applicable grace or cure period. Lessor agrees to deliver to Lessee prior
to the commencement of the term of this Lease such a nondisturbance agreement,
which shall be in form and substance reasonably satisfactory to Lessee, from the
holder of each existing mortgage and ground lease.
34. Nothing contained in this Lease shall be construed as releasing
Lessor from responsibility for, or as indemnifying Lessor against, its own, or
its agents' or employees' negligent acts or omissions or wilful misconduct.
35. If Lessor shall default in the performance or observance of any
agreement or condition in this Lease on its part to be performed or observed,
and if Lessor shall not cure such default within the time periods provided for
herein after written notice (or, if said default is non monetary and is not
reasonably capable of cure within thirty (30) days, shall not within said period
commence to cure such default and thereafter prosecute the curing of such
default to completion with due diligence), Lessee may at its option, without
waiving any claim for damages for breach of agreement, at any time thereafter
cure such default for the account of Lessor, and
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any amount paid or any contractual liability incurred by Lessee in so doing
shall be deemed paid or incurred for the account of Lessor, and Lessor agrees to
reimburse Lessee therefor or save Lessee harmless therefrom; provided that
Lessee may cure, any such default as aforesaid prior to the expiration of said
waiting period, but after said notice to Lessor (which notice, in the case of
emergency, may be given orally or in any other reasonably due and sufficient
manner) if the curing of such default prior to the expiration of said waiting
period is reasonably necessary to protect the Demised Premises or Lessee's
interest therein, to prevent injury or damage to persons or property, or to
enable Lessee to conduct its business in the Demised Premises. If Lessor shall
fail to reimburse Lessee upon demand for any amount paid for the account of
Lessor hereunder or for any other sum payable to Lessee pursuant to this Lease,
said amount or sum plus interest thereon at an annual rate of 2% in excess of
the prime rate as published from time to time in the Wall Street Journal, but in
no event greater than the maximum legal rate of interest, from the date of
demand upon Lessor for payment, may be deducted by Lessee from the next or any
succeeding payments of rent due hereunder.
36. Lessee shall not assign this Lease nor sublet all or a portion
of the Demised Premises without first obtaining the written consent of Lessor,
which consent shall not be unreasonably withheld or delayed.
Lessee shall have the right, without the prior written consent
of Lessor, to assign this Lease or any portion thereof, or to sublet all or part
of the Demised Premises to any related or affiliated company or to any entity or
person to whom all or substantially all of the assets or stock of Lessee are
sold or transferred. Notwithstanding the above, in the event of an assignment or
subletting, Lessee shall remain liable under all the terms and conditions of
this Lease.
37. Lessor covenants and agrees that, upon Lessee's paying the rent
and observing and performing all of the terms, covenants, and conditions on
Lessee's part to be observed and performed, Lessee may peaceably and quietly
enjoy the Demised Premises and all of Lessee's rights hereunder.
38. Lessor represents and warrants that he owns the fee title to the
Demised Premises and the common areas and other property shown on the attached
plot plan; he has full right, title, and authority to enter into and perform his
obligations under the Lease; and Exhibit 1 hereto is a true and complete list of
all mortgages and ground leases, if any, encumbering the premises as of the date
hereof and the names of the holders thereof and that except as provided on said
Exhibit Lessor owns such fee title free and clear of any other liens or
encumbrances.
39. Any notices required to be sent under this Lease shall be mailed
by certified mail, return receipt requested, addressed, if to the Lessor at 0
Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxx 00000, and, if to Lessee at Xxxxxx Xxx
Marketing, Inc., Xxx Xxxxxx Xxxxx, Xxxxxx, XX 00000-0000, Attention: Xxxxxx X.
Xxxxxxx, Senior Vice President, Chief Financial Officer with a copy to Xxxxxx
Xxxxxx Flattau & Klimpl, LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000,
Attention: Xxxxxxx X. Xxxx, Esquire, or to some future address as designated by
either of the
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parties in writing sent by notice as herein required. Notices shall be deemed
given when mailed as aforesaid, three (3) business days after being deposited in
the U.S. mail postal office.
40. This Lease shall inure to and be binding upon the respective
heirs, executors, administrators, successors and assigns of the Lessor and
Lessee.
41. Lessee may, but shall not be obligated to, remove at or prior to
the termination of this Lease or any extensions thereof, any equipment or trade
fixtures installed by it on the Demised Premises even though such fixtures or
equipment may be attached to the Demised Premises, but all damage to the Demised
Premises caused by such removal shall be repaired by Lessee. Lessor shall not
have any lien for the performance of any obligations of Lessee upon any
fixtures, machinery or equipment, or goods, wares or merchandise or other
personal property, and hereby expressly waives the provisions of any law giving
to it such a lien.
42. It is expressly understood by the parties that the whole
agreement is embodied in this agreement and that no part or item is omitted.
43. Lessor and Lessee represent to each other that they have dealt
with no broker in connection with this Lease.
44. Lessee shall reimburse Lessor for any increase in Lessor's real
estate taxes on the Demised Premises, over and above the real estate taxes which
Lessor shall have paid for the fiscal year 1990. Lessor represents that said
property is taxed as a separate tax parcel. Lessee's Obligation pursuant to this
paragraph, if any, shall become due and payable, as additional rent, within (10)
days after the payment by Lessor of such property taxes and upon submission to
Lessee by Lessor of a statement showing the computations upon which Lessee's
payment under this paragraph are based and a copy of the tax xxxx. If any
exemption and/or abatement, rebate or refund shall be made for any tax year, an
appropriate refund shall be made with respect to the amount paid by Lessee to
Lessor on account of real estate taxes dependent on the amount of such exemption
and/or abatement, rebate or refund less Lessee's proportionate share of the cost
and expense of obtaining the same. If Lessor does not elect to bring a
proceeding for an exemption and/or abatement, rebate or refund for any tax year
in which there has been an increase in assessment Lessor shall notify Lessee
reasonably in advance of the date when such proceeding may no longer be brought
and Lessee shall have he right to maintain such proceeding on behalf of Lessor.
Notwithstanding anything to the contrary contained in this Lease, Lessor and
Lessee hereby agree that the initial responsibility for the payment of all real
estate taxes shall be upon Lessor and Lessor agrees to pay the same as required
by law, but in any event, so as to assure that Lessee's right to occupy the
Leased Premises shall not be disturbed or threatened. Lessee shall not be
required to share in any penalties, interest, late payments or the like
resulting from Lessor's late payment of real estate taxes.
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WITNESS:
/s/ Xxxx X. Xxxxxxxx /s/ XXXX X. XXXXXX
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XXXX X. XXXXXX, LESSOR
/s/ Xxxxxxxxxx Xxxx XXXXXX XXX MARKETING, INC.,
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LESSEE
By: /s/ Xxxxx Xxxxx
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COMMERCIAL LEASE
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BETWEEN
XXXX X. XXXXXX
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AND
XXXXXX XXX MARKETING, INC
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From
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TO
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