Exhibit 10(b)
LEASE FOR BRANCH OFFICE LOCATED AT 0000 XXXXXXXXX XXXXXX
AMENDMENT TO LEASE
This Amendment to Lease Agreement ("Lease Amendment") dated as of December
14, 1998 between Xxxxxxxxx Realty LLC ("Landlord") with an address x/x Xxxxxxx
Xxxxxxxxxx, Xxx., Xxxxxxxxx Xxxxx, 00 Xxxxxxx Xxxx, Xxxxxxxxx, XX 00000
(successor in interest to X.X. Xxxxx and Xxxxxx Xxxxx, his wife, and X.X. Xxxxx
and Xxxxx Xxxxx, his wife, co-partners trading as Eastern Realty Company; Xxxxxx
X. Orleans, Xxxxxx Xxxxxx, Xxxxxx Orleans, Xxxxxxx Xxxxxxx and X.X. Xxxxxxxx,
co-partners trading as Orleans Construction Company (collectively, the "Initial
Landlord")), as landlord, and first Union National Bank ("Tenant") with an
office at 0000 Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxxxx, XX 00000, Mail Drop:
PA 4121 (successor in interest to Industrial Trust Company (the "Initial
Tenant")), as tenant.
W I T N E S S E T H
WHEREAS Initial Landlord and Initial Tenant entered into a Lease Agreement
dated August 8, 195$ (the "Lease") with respect to the leased premises (as
defined in the Lease) (any terns used in this Lease Amendment and not otherwise
defined herein shall have the meaning ascribed to such term in the Lease) which
Lease is set to expire (with no further options held by Tenant to extend the
term of the Lease) on December 14, 1998.
WHEREAS Landlord and Tenant, as successors in interest to Initial Landlord
and Initial Tenant, respectively seek to extend the term of the Lease from the
date hereof (the "Lease Amendment Rent Commencement Date") and further modify
the Lease asset forth in this Lease Amendment,
NOW, THEREFORE, intending to be legally bound and for other good and
valuable consideration, Landlord and Tenant hereby agree as follows:
1. The language "the buildings and improvements to be constructed thereon
by Landlord in accordance with this Lease" in the thirteenth and
fourteenth lines of Section 101 of the Lease is hereby deleted and the
language "the buildings and improvements situate on the leased
premises as of the date of the commencement of the Amended Lease Term
(hereinafter defined in Section 201)" is hereby inserted in its place.
2. The first two sentences of Section 102 of the Lease are hereby deleted
and the following language is hereby inserted in its place:
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Except as provided in the next sentence, all buildings, improvements,
fixtures and building equipment situate on the leased premises shall
be and remain the property of Landlord.
3. Sections 201, 202 and 203 of the Lease shall be deleted in their
entirety and replaced with the following:
Section 201. Term. Tenant shall have and hold the leased premises for
the term to commence on the Lease Amendment Rent Commencement Date and
shall end on December 31, 2003 (the "Amended Lease Term").
Section 202. Renewal Option-Exercise. Tenant, if not in default under
the terms of this Lease after giving effect to any applicable notice
and cure periods, and if Tenant is in possession and occupancy of the
leased premises and conducting business therein at the time thereof,
is hereby given the option (the "Renewal Option's to extend the term
of this Lease for a further period of five (5) years following the
expiration of the Amended Lease Term. The Renewal Option may only be
exercised by Tenant giving Landlord notice in writing, by registered
or certified mail, addressed to Landlord at the place provided under
this Lease and received by Landlord at least 180 days prior to the
expiration of the Amended Lease Term. Such extended term (the "Renewal
Term") shall be at the rents determined, as hereinafter set forth, and
upon the terms and conditions set out hereinafter for such renewal and
there shall be no right or option for further renewals.
4. Sections 301, 302, 303, 304 and 305 if the Lease shall be deleted in
their entirety and replaced with the following:
Section 301. Minimum Annual Rent. Tenant shall pay to Landlord the
following guaranteed minimum annual rent ("Minimum Rent" or "Minimum
Annual Rent"), payable in monthly installments in advance on January
1, 1999 and on the first day of each month during the term of this
Lease:
TIME ANNUAL MONTHLY
PERIOD AMOUNT AMOUNT
1/1/99-12/31/99 $37,500.00 $ 3,125.00
1/1/00-12/31/00 $38,625.00 $ 3,218.75
1/1/01-12/31/01 $39,783.75 $ 3,315.31
1/1/02-12/31/02 $40,977.26 $ 3,414.77
1/1/03-12/31/03 $42,206.58 $ 3,517.22
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There shall also be payable as Minimum Rent on the date of this Lease
Amendment the amount of $1,814.51 for the period 12/14/98-12/31/98.
RENEWAL OPTION:
1/l/04-12/31/04 $43,472.78 $ 3,622.73
1/1/05-12/31/05 $44,776.96 $ 3,731.41
1/1/06-12/31/06 $46,120.27 $ 3,843.36
1/l/07-12/31/07 $47,503.88 $ 3,958.66
1/1/08-12/31/08 $48,929.00 $ 4,077.42
Each such installment shall be sent to the Landlord at: x/x Xxxxxxx
Xxxxxxxxxx, Xxx., Xxxxxxxxx Xxxxx, 00 Xxxxxxx Xxxx, Xxxxxxxxx, XX
00000 or to such other person or entity or at such other place as may
be designated by Landlord from time to time, without any prior notice
or demand therefor and without any deduction or setoff whatsoever,
except as expressly set forth in this Lease.
Section 302. Common Area Maintenance. Tenant agrees to pay as rent, in
addition to the minimum rental herein reserved certain additional
operating expenses with respect to the leased premises ("CAM Costs'
which costs shall include, without limitation, the cost of the
following; casualty and liability insurance and other coverage carried
by Landlord with respect to the leased premises; sweeping, snow
removal and subject to the limitations set forth herein, general
maintenance and repair of the parking lot and roof of the leased
premises; lighting the parking lot of the leased premises; security
and traffic control services (if deemed necessary by Landlord); and an
annual administrative fee equal to 15% of such CAM Costs. The amount
due hereunder on account of such CAM Costs shall be apportioned for
that part of the first and last calendar years covered by the term
hereof. Landlord will deliver to Tenant a statement showing in
reasonable detail Tenant's CAM Costs and, within 30 days after
delivery of such statement, Tenant will pay Tenant's CAM Costs as
additional rent. Landlord may at any time during the term of this
Lease require Tenant to pay monthly installments along with Minimum
Rent equal to one-twelfth (1/12th) of Tenant's CAM Costs for the
preceding year; provided however, that Tenant shall pay any deficiency
(or Landlord shall refund any overpayment) within 30 days after
delivery of the aforementioned statement by Landlord. Any Landlord's
statement of Tenant's CAM Costs shall be conclusive and binding on
Tenant unless Tenant shall object to such statement, specifying the
specific areas in which it disputes such
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statement, within one hundred eighty (180) days after receipt of such
statement.
The CAM Costs shall not include:
a. any charge for depreciation, interest, leasehold amortization or
rents (including ground rents) and non-cash items paid, booked or
incurred by Landlord;
b. items and services for which Tenant reimburses Landlord or pays
third parties;
c. repairs or other work needed because of fire, windstorm or other
casualty or cause insured against by Landlord pursuant to the
casualty and insurance provisions of the Lease, or to the extent
Landlord's insurance would have provided insurances, which is the
greater coverage;
d. any costs, fines or penalties, incurred because Landlord violated
any, governmental law, statute or ordinance;
e. costs incurred by Landlord to test, survey, cleanup, contain,
xxxxx, remove, or otherwise remedy any currently classified
hazardous wastes or asbestos containing materials from the leased
premises or related land, unless the Tenant caused such wastes or
asbestos containing materials to be in, on, or around the leased
premises;
f. other expenses which under GAAP, consistently applied, would not
be considered normal maintenance, repair, management ox operating
expenses;
g. costs of electrical energy furnished and metered directly to
Tenant;
h. salaries, expenses, fringe benefits and other compensation except
to the extent reasonable and directly allocable to the operation
of the leased premises;
i. increased insurance premiums caused by acts of any party other
than Tenant;
j. costs incurred by the negligence or willful acts of the Landlord;
or
k. costs of repair or replacement incurred by fire or other casualty
or caused by the right or eminent domain.
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Tenant shall be permitted to audit Landlord's books and records
pertaining to CAM Costs at a mutually convenient time, following
reasonable advance notice to Landlord. If it is mutually determined
through an audit of the Landlord's books that amounts paid to Landlord
are in excess of amounts due, then Landlord shall repay such excess to
Tenant within thirty (30) days after demand following such
determination.
Section 303. Real Estate Taxes. Tenant agrees to pay as rent in
addition to the minimum rental herein reserved, all real estate taxes,
charges or other assessments assessed or imposed upon the leased
premises during the term of this Lease (including, but not limited to,
charges for water and sewer rents). The amount due hereunder on
account of such taxes ("Tenant's Tax Payment") shall be apportioned
for that part of the first and the last calendar years covered by the
term hereof. Landlord will deliver to Tenant a statement showing in
reasonable detail Tenant's Tax Payment and, within 30 days after
delivery of such statement, Tenant will pay Tenant's Tax Payment to
Landlord as additional rent. Landlord may at any time during the term
of this Lease require Tenant to pay monthly installments along with
Minimum Rent equal to one-twelfth (1/12th) of Tenant's Tax Payment for
the preceding year; provided, however, that Tenant shall pay any
deficiency (or Landlord refund any overpayment) within 30 days after
delivery of the aforementioned statement by Landlord. Tenant agrees to
pay Tenant's share of any Use and Occupancy Tax or similar tax imposed
by the City of Philadelphia, if applicable. Any Landlord's statement
of Tenant's Tax Payment or Use and Occupancy Tax shall be conclusive
and binding on Tenant unless Tenant shall object to such statement,
specifying the specific areas in which it disputes such statement,
within ninety (90) days after receipt of such statement.
Notwithstanding anything to the contrary, contained in this Section
303, neither the term "real estate taxes" nor "Tenants Tax Payment"
shall include any inheritance, estate, succession, transfer, gross
receipts, franchise, corporation net income or profit tax or capital
levy imposed upon Landlord.
5. The language (subject to Tenants obligation to reimburse Landlord
therefor as set forth in Section 302 above)" is hereby inserted after
the word "Landlord" on the second line of Section 401 of the Lease and
after the word "insurance" on the eleventh line of Section 401 of the
Lease.
6. Section 501 through 507 of the Lease shall be deleted in their
entirety and replaced with the following:
Section 501. Condition of Leased Premises. Tenant has fully inspected
the leased premises and is satisfied in all respects with the
condition of the leased premises. Tenant hereby accepts delivery of
possession of the
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leased premises in their present "as is, where is" condition and state
of repair as of the date hereof.
7. The language in the first sentence of Section 602 (a) of the Lease on
the first four lines thereof (beginning with the work "Subject" and
ending with the language "Section 602") is hereby deleted.
8. Section 602 (b) shall be deleted in its entirety and replaced with the
following
(b) Landlord shall maintain and repair the roof, the exterior of the
building, landscaping and the hard surface parking for any
parking spaces as may exist on the leased premises as of the date
of commencement of the Amended Lease Term, and all water, sewer
and utility lines exterior to the building on the leased
premises. Landlord shall not be obligated to rebuild, replace,
repair, or maintain the leased premises except as specifically
provided herein, but in the event Landlord receives money or
property in reimbursement of or in compensation for damage or
loss to the leased premises for which Tenant is obliged to make
repairs as herein set forth, Landlord shall apply all such money
and property, to the extent required therefor, to the repair and
restoration of such damage or loss. Landlord has no
responsibility for supplying any utilities to the leased premises
and Tenant shall make such arrangements as Tenant shall desire
for the provisions of such utilities directly )with the
appropriate utility companies and Tenant shall be responsible for
paying any and all charges in connection with Tenant's utility
consumption at the leased premises. Nothing in this Section 602
is intended to limit Tenant's obligation to pay CAM Costs as
provided in this Lease.
9. Section 604 of the Lease shall be deleted in its entirety and replaced
with the following:
Section 604. Landlord's Title. Landlord warrants that it has good and
marketable title to the leased premises, subject to all matters of
record, and has the exclusive right to lease such premises.
10. Section 701 of the Lease shall be deleted in its entirety.
11. Section. 801 of the Lease shall be deleted in its entirety and
replaced with
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the following:
Section 801. Assignment or Sublease Permitted. Tenant shall not have
the right to assign or transfer this Lease or sublet the whole or any
part of the leased premises without first obtaining the written
consent of the Landlord, which consent shall not be unreasonably
withheld or delayed. Notwithstanding any such assignment or transfer
of this Lease or subletting of the leased premises, Tenant shall
nevertheless remain liable to Landlord for the performance of all of
the terms, agreements, provisions and conditions of this Lease.
Notwithstanding anything in this Lease to the contrary, in the event
Tenant assigns this Lease or sublets the whole or any part of the
leased premises at any time during the Amended Lease Term, the Renewal
Option will deem to have been exercised by the Tenant as of the date
of such assignment or subletting.
Notwithstanding anything to the contrary contained herein, Tenant
shall have the right, without Landlord's prior consent, to assign this
Lease, sublet the leased premises (or any portion thereof) and/or
permit the use of the leased premises (or any portion thereof) by or
to an Affiliate or Successor of Tenant, provided, however, that such
Affiliate or Successor uses the Premises solely for the uses permitted
by this Lease. For purposes hereof, and "Affiliate" or "Successor" of
Tenant is an entity controlling, under common control with or
controlled by First Union National Bank, including an entity resulting
from an internal reorganization, a merger or a consolidation by or
with Tenant. For purposes of this definition, the work "control", as
used above, means with respect to a Person (as hereinafter defined)
that is a corporation, the right; to direct or cause the direction of
the management or policies of the controlled Person. The word "Person"
means an individual partnership, trust, corporation, firm or other
entity. Tenant shall promptly notify Landlord in writing in the event
of art assignment or subletting to an Affiliate or Successor.
12. Section 903 of the Lease shall be deleted in its entirety and replaced
with the following:
Section 903. Confession in Ejectment. In addition to, and not in lieu
of any of the foregoing rights granted to Landlord:
WHEN THIS LEASE OR TENANT'S RIGHT OF POSSESSION SHALL BE
TERMINATED BY COVENANT OR CONDITION BROKEN, OR FOR ANY OTHER
REASON, EITHER DURING THE TERM OF THIS LEASE, AND ALSO WHEN AND
AS SUCH TERM SHALL HAVE EXPIRED OR BEEN TERMINATED, TENANT HEREBY
IRREVOCABLY AUTHORIZES AND
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EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD AS ATTORNEY FOR
TENANT AND ANY PERSONS CLAIMING THROUGH OR UNDER TENANT TO
CONFESS JUDGMENT IN EJECTMENT AGAINST TENANT AND ALL PERSONS
CLAIMING THROUGH OR UNDER TENANT FOR THE RECOVERY BY LANDLORD OF
POSSESSION OF THE LEASED PREMISES, FOR WHICH THIS LEASE SHALL BE
SUFFICIENT WARRANT, WHEREUPON, IF LANDLORD SO DESIRES, A WRIT OF
EXECUTION OR OF POSSESSION MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR
WRIT OR PROCEEDINGS WHATSOEVER, AND PROVIDED THAT IF FOR ANY
REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED THE SAME SHALL
BE DETERMINED, CANCELLED OR SUSPENDED AND POSSESSION OF THE
LEASED PREMISES HEREBY DEMISED REMAIN IN OR BE RESTORED TO TENANT
OR ANY PERSON CLAIMING THROUGH OR UNDER TENANT, LANDLORD SHALL
HAVE THE RIGHT, UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON
ANY SUBSEQUENT TERMINATION OR EXPIRATION OF THIS LEASE OR ANY
RENEWAL OR EXTENSION HEREOF, OR OF TENANT'S RIGHT OF POSSESSION,
AS HEREINBEFORE SET FORTH, TO CONFESS JUDGMENT IN EJECTMENT AS
HEREINBEFORE SET FORTH ONE OR MORE ADDITIONAL TIMES TO RECOVER
POSSESSION OF THE SAID LEASED PREMISES.
IN ANY ACTION OF OR FOR EJECTMENT, IF LANDLORD SHALL FIRST
CAUSE TO BE FILED IN SUCH ACTION AN AFFIDAVIT MADE BY IT OR
SOMEONE ACTING FOR IT SETTING FORTH THE FACTS NECESSARY TO
AUTHORIZE THE ENTRY OF JUDGMENT, SUCH AFFIDAVIT SHALL BE
PRESUMPTIVE EVIDENCE SUCH FACTS; AND IF A TRUE COPY OF THIS LEASE
(AND OF THE TRUTH OF THE COPY SUCH AFFIDAVIT SHALL BE SUFFICIENT
EVIDENCE) BE FILED FN SUCH ACTION, IT SHALL NOT HE NECESSARY TO
FILE THE ORIGINAL AS A WARRANT OF ATTORNEY, ANY RULE OF COURT,
CUSTOM OR PRACTICE TO THE CONTRARY NOTWITHSTANDING. TENANT
RELEASES TO LANDLORD, AND TO ANY AND ALL ATTORNEYS WHO MAY APPEAR
FOR TENANT, ALL PROCEDURAL ERRORS IN ANY PROCEEDINGS TAKEN BY
LANDLORD, WHETHER BY VIRTUE OF THE WARRANTS OF ATTORNEY CONTAINED
IN THIS LEASE OR NOT, AND ALL LIABILITY THEREFOR.
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13. The language "(other than as set forth in Section 1106)" is hereby
inserted after the word Tenant on the fourth line of Section 906 of
the Lease.
14. Section 1001 of the Lease shall be deleted in its entirety.
15. The second sentence of Section 1102 of the Lease shall be deleted and
replaced with the following:
No assignment or transfer of this Lease shall relieve any of the
parties hereto of duties and obligations under this Lease;
provided, however, in the event Landlord transfers and conveys
the leased premises, or any premises of which the leased premises
are a part, to another party, other than an agent or nominee of
Landlord, and in the further event that such transferee assumes
and agrees to perform all of the obligations of Landlord set
forth in this Lease as Landlord accruing following such transfer;
then in such event such third party shall become bound by the
provisions of this Lease accruing following such transfer and
Landlord shall be discharged and released of all. obligations
under this Lease accruing following such transfer.
16. Section 1103 of the Lease shall be deleted in its entirety and
replaced with the following:
Section 1103. Notices: Whenever in this Lease notice or demand is
required or permitted to be given or served by either xxxxx to the
other, such notice or demand shall not be deemed to have been given or
served unless in writing and either personally delivered, sent by
overnight courier, or forwarded by registered or certified mail,
return receipt requested, postage prepaid, addressed to such party at
its address set forth in that certain Amendment to Lease dated as of
December 14, 1998. Such addresses may be changed from time to time by
either party by serving notice as above provided. Time shall be of the
essence with respect to any such notice or demand. The date of
delivery of any notice provided for herein shall be the date of
delivery with respect to any notice transmitted by personal delivery,
the first business day following deposit with an overnight courier
with respect to notices transmitted by overnight mail, and two days
following the date of deposit in the United States mail if given by
registered mail ox certified mail. Tenant hereby waives the right to
receive any notice to quit contemplated by Section 501 of the Landlord
Tenant Act of 1951, as amended.
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17. The following new sections shall be added to the Lease following
Section 1105:
Section 1106. Late Charge. If Tenant shall fail to pay all or any part
of any installment of Minimum Rent or Additional Rent (such as
Tenant's CAM Costs or Tenant's Tax Payments) for more than ten (10)
days after the same shall have become due and payable, Tenant shall
pay as additional rent hereunder to Landlord a late charge of five (5)
cents per month for each dollar of the amount of such Minimum Rent or
additional rent which shall not have been paid to Landlord within said
ten (10) day period. It is understood and agreed that such charges
represent an estimate of damages incurred for late processing and
administrative special handling and are not interest or penalty
payments. The provisions herein for such charges shall not be
construed to extend the date for payment of any sums required to be
paid by Tenant hereunder or to relieve Tenant of its obligations to
pay all such stuns at the time or times herein stipulated.
Notwithstanding the imposition of such charges, Tenant shall be in
default under this Lease if all payments required to be made by Tenant
are not made at the times herein stipulated under this Lease, subject
to Section 906 hereof.
Section 1107. Tenant Obligations.
(a) Environmental Laws.
(i) Tenant shall comply with all applicable federal, state, and
local environmental laws, ordinances, orders or regulations
affecting the leased premises, the operation of Tenant's
business at the leased premises, or the removal of any
substances therefrom. Notwithstanding anything in this Lease
to the contrary, Tenant shall not, without Landlord's prior
written consent and subject to reasonable conditions imposed
by Landlord, use, store, manufacture, process or dispose of
any oil, grease, or hazardous substances regulated by any
public authority.
(ii) Tenant shall not permit any on-site disposal of oil, grease
or hazardous substances. No hazardous or industrial wastes,
contaminated substances or those resulting from
manufacturing or processing shall be debited in containers
provided for trash removal. All waste materials (including
Tenant's construction or remodeling wastes) other than
ordinary sanitary commercial trash shall be removed from the
leased premises and properly disposed of in compliance with
all applicable laws at Tenant's sole cost and expense.
(iii) Tenant does hereby indemnify and hold Landlord harmless oft
from and against all claims, actions, liens, demands, costs,
expenses, fines and judgments (including legal costs and
attorney's fees) resulting from or arising by reason of any
spills or contamination of air, soil or water by oil,
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grease or hazardous substances caused by Tenant, its agents
or employees at or around the leased premises or upon
removal therefrom, or the violation of any other provision
of this Section 1107, as a result of negligence, acts or
omissions of Tenant.
(b) Waste. Tenant shall not commit or suffer to be committed any
waste or nuisance or other act or thing upon the leased premises.
(c) Compliance with Laws. Tenant shall, at Tenant's sole cost and
expense, comply with all laws and other requirements of all
municipal, county, state, federal and other governmental
authorities, now in force or which may hereafter be in force,
applicable to the leased premises or the use thereof or the
conduct of Tenant's business therein.
Section 1108. Offset Statement Within twenty days after request
therefor by Landlord, Tenant agrees to deliver in recordable form a
certificate to Landlord or to any proposed mortgagee, lessor or
purchaser certifying, among other things: (a) whether this Lease is in
full force and effect; (b) whether this Lease has been modified or
amended and, if so, identifying and describing any such modification
or amendment; (c) the date to which rent and other charges have been
paid; and (d) whether Tenant knows of any default on the part of
Landlord ox has any claim against Landlord and, if so, specifying the
nature of such default or claim.
Section 1109. Surrender and Holding Over. Upon expiration or
termination of this Lease by lapse of time or otherwise, Tenant shall
peaceably surrender the leased premises to Landlord in broom-clean
condition and in good repair, reasonable wear and tear, damage caused
by a fire or other casualty or damage caused by Landlord, its agents
or employees excepted. In the event that Tenant shall fail to
surrender the leased premises, Landlord shall have the right to demand
and receive, as liquidated damages in addition to all other remedies,
an amount equal to 150% of the stated Minimum Rent specified in this
Lease for the period of time Tenant shall so retain possession of the
Leased /?remises after expiration of the stated term hereof (or if
there is no Minimum Rent stated for such time, 150% of the Minimum
Rent which is to be in effect from 1/1/08 to 12/31/08). If Tenant
remains in possession of the leased premises with Landlord's consent
but without a new duly executed written Lease, Tenant shall be deemed
to be occupying the leased premises as a tenant at will, subject to
all the covenants, conditions and agreements of this Lease.
Section 1110. Invalid Provisions. If any term, covenant or condition
of this Lease or the application thereof to any person or circumstance
shall to any extent be held invalid or unenforceable, the remainder of
this Lease or the application of such term, covenant or condition to
persons or circumstances other than those as to which it is held
invalid or unenforceable shall not be
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affected thereby, and each term, covenant or condition of this Lease
shall be valid and enforced to the fullest extent permitted by law.
Section 1111. Survival of Obligations. All obligations of Tenant which
by their nature involve performance in any particular after the end of
the term, or which cannot be ascertained to have been fully performed
until after the end of the term, shall survive the expiration or
sooner termination of the term.
Section 1112. Liabilities of Landlord. The liability of Landlord
hereunder and any successor to Landlord's estate in and to the leased
premises shall be limited to his or its interest in the leased
premises, and no other assets of Landlord other than his or its
interest in the leased premises shall be affected by reason of any
liability which Landlord or his or its successor in interest may have
under this Lease.
Section 1113. Subordination. (a) Subject to delivery of a reasonably
acceptable subordination, nondisturbance and attornment agreement,
Tenant agrees that this Lease and all terms, covenants and provisions
thereof and all rights, remedies, and options of Tenant thereunder are
and shall be subordinate to any mortgage, underlying or master lease
now or hereafter placed upon the land of which the leased premises are
a part, and to all advances made or hereafter to be made upon the
security thereof. Tenant shall, within ten days from the request of
Landlord, execute and deliver a subordination, nondisturbance and
attornment agreement in a form provided by Landlord and reasonably
acceptable to Tenant confirming the subordination provided for in this
Lease. The word "mortgage" as used herein includes mortgages, deeds of
trust or similar instruments and the word mortgage, underlying or
master lease shall include modifications, consolidations, extensions,
renewals, replacements or substitutes thereof.
(b) Subject to the terms of a reasonably acceptable subordination,
nondisturbance and attornment agreement, Tenant agrees that
neither the cancellation nor termination of any ground or
underlying lease to which this Lease is now or may hereafter
become subject or subordinate, nor any foreclosure of a mortgage
affecting the Leased Premises, nor the institution of any suit,
action, summary or other proceeding by Landlord herein or any
successor Landlord, or any foreclosure proceeding brought by the
holder of any such mortgage to recover possession of the
mortgaged property, shall by operation in law or otherwise result
in the cancellation or termination of this Lease or the
obligations of the Tenant hereunder. Tenant agrees to attorn to
any subsequent owner of the Premises.
(c) Tenant shall notify the mortgagee affecting the leased premises
("Lender") of any default by Landlord under the Lease and agrees
that, notwithstanding any provisions of the Lease to the
contrary, no notice of
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cancellation thereof or of an abatement shall be effective unless
Lender shall have received notice of default giving rise to such
cancellation or abatement and shall have failed within thirty
(30) days after receipt of such notice to cure such default, or
if such default cannot be cured within thirty (30) days, shall
have failed within thirty (30) days after receipt of such notice
to commence and thereafter diligently pursue any action necessary
to cure such default. Notwithstanding the foregoing, Lender shall
have no obligation to cure any such default.
Section 1114. Custom and Usage. Any law, usage or custom to the
contrary notwithstanding, Landlord shall have the right at all times
to enforce the covenants and conditions of this Lease in strict
accordance with the terms hereof and notwithstanding any conduct or
custom on the part of Landlord in refraining from so doing at any time
or times. The failure of Landlord at any time or times to enforce its
rights under said covenants and provisions strictly in accordance with
the same shall not be construed as having created a custom in any way
or manner contrary to specific terms, provisions and covenants of this
Lease or as having modified or waived the same.
Section 1115. Indemnification. Tenant hereby agrees to indemnify,
defend and hold Landlord harmless of and from any and all damage, loss
cost or expense (including, but not limited to, court costs and
reasonable attorneys fees) arising from any damage to personal
property occurring on the leased premises or any injury or death to
persons occurring on the leased premises unless arising from the
negligence or willful misconduct of Landlord.
18. Tenant and Landlord each represent and warrant to the other that it
has had no dealings with any broker or agent in connection with this
Lease other than Xxxxxxx Properties, Inc, and each agrees to indemnify
and hold the other party harmless from and against any and all claims,
liabilities or expenses (including reasonable attorneys' fees) imposed
upon, asserted or incurred by such party as a consequence of any
breath of this representation.
19. The submission of this Lease Amendment by Landlord to Tenant for
examination shall not be deemed to constitute an offer by Landlord or
a reservation to Tenant of an option to lease, and this Lease
Amendment shall become effective as a binding instrument only upon the
execution and delivery thereof by both Landlord and Tenant.
20. The provisions of this Lease Amendment shall bind the parties hereto
and their respective successors and assigns,
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21. The Lease, as modified by this Lease Amendment, shall continue in full
force and effect.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby,
have caused this Lease Amendment to be duly executed as of the day and year
first above written.
Landlord
XXXXXXXXX REALTY LLC, a Pennsylvania limited liability company
By: /s/ Xxxx Xxxxxx
Print Name: Xxxx Xxxxxx
Title: Managing Member
Witness: /s/
Tenant
FIRST UNION NATIONAL BANK
By: /s/ Xxxxx Xxxxxxxxxx
Print Name: Xxxxx Xxxxxxxxxx
Title: Vice President
Witness: /s/
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