EXHIBIT 10.96
EXECUTION COPY
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is made and entered into this ___
day of January, 1996, by and between XXXXXXXX PROPERTIES, L.P., a Pennsylvania
limited partnership with offices at 0000 Xxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000 (hereinafter called "Landlord"), and UNITED STATIONERS SUPPLY
CO., an Illinois corporation with offices at 0000 Xxxx Xxxx Xxxx, Xxx Xxxxxxx,
Xxxxxxxx 00000, (hereinafter called "Tenant"), with the intent to be legally
bound.
1. PREMISES. Landlord hereby leases to Tenant, and Tenant hereby
takes and hires from Landlord, the real property located at 000 Xxxxxxxxxxxx
Xxxxx, Xxxxx Xxxx RIDC Park, Cranberry Township, Xxxxxx County, Pennsylvania,
more particularly described on Exhibit A attached hereto and incorporated by
reference herein (the "Land") and the 84,176 square foot office and warehouse
building erected thereon (the "Building") for the Term and upon the conditions
and agreements set forth in this Lease. The Land and the Building are
collectively referred to herein as the "Premises." For all purposes hereof the
Building shall be conclusively deemed to consist of 84,176 square feet of
rentable area.
2. TERM. The term of this Lease (the "Term") shall commence on
February 1, 1996 (the "Commencement Date") and shall expire on the last day of
the sixtieth (60th) full calendar month thereafter unless sooner terminated or
extended as provided herein.
3. POSSESSION. If Landlord fails to tender possession of the
Premises on or before the Commencement Date through no omission, delay or
default by Tenant, then all rent shall xxxxx until Landlord tenders possession,
and except as otherwise provided in this Section 3, Tenant hereby accepts such
abatement in full settlement of any and all claims Tenant may have against
Landlord arising from Landlord's failure to tender possession on the
Commencement Date. The Term of this Lease shall be extended as a result of such
failure by Landlord to tender possession on the Commencement Date for a period
equal to such delay. In addition to the foregoing, for each day elapsing from
and including the Commencement Date through February 29, 1996 on which the
Landlord fails to deliver possession of the Premises, Tenant's obligation to pay
rent pursuant to Section 4 shall be abated for one day after Landlord delivers
possession of the Premises, up to a total of twenty-nine (29) days. No formal
tender of possession by Landlord, in writing or otherwise, shall be required.
The foregoing notwithstanding, should Landlord fail to deliver possession of the
Premises on or prior to February 29, 1996 through no omission, delay or default
by Tenant, Tenant may thereafter terminate this Lease prior to delivery of
possession of the Premises by Landlord upon written notice to Landlord, in which
event neither Landlord nor Tenant shall have any further rights or remedies
hereunder.
4. RENT. As minimum rent for the Premises (the "Rent") Tenant shall
pay to Landlord, in advance and without demand, counterclaim or offset, at its
offices or at such other place as Landlord may from time to time designate in
writing, beginning on the first day of the Term and continuing on the first day
of every month thereafter until the expiration of the Term: for the period
commencing February 1, 1996 through and including January 31, 2001, the sum of
One Million, Six Hundred Sixty-Two Thousand, Four Hundred Seventy-Six and 00/100
Dollars ($1,662,476) (being $3.95 per annum per square foot of rentable area in
the Building) (sometimes referred to hereinafter as the "Base Rent") which shall
be due and payable in equal monthly installments of Twenty-Seven Thousand, Seven
Hundred Seven and 93/100 Dollars ($27,707.93).
In the event that Tenant's obligation to pay Rent commences on a day
other than the first day of a calendar month, Tenant shall pay to the Landlord a
pro rata portion of the monthly installment of Rent, such pro rata portion to be
calculated on the number of days remaining in such partial month after the day
upon which Tenant's obligation to pay Base Rent commences. Nothing herein
contained shall be deemed to suspend or delay the payment of any sum at the time
the same became due and payable hereunder, or limit any other remedy of
Landlord.
5. ADDITIONAL RENT; LATE PAYMENT INTEREST. In addition to payment of
the Rent as set forth in Section 4 herein, Tenant hereby covenants and agrees to
pay when due any and all other sums of money, charges or other amounts required
to be paid by Tenant to Landlord or to another person under this Lease
(collectively referred to herein as the "Additional Rent"). Nonpayment of
Additional Rent when due hereunder shall constitute a default under this Lease
to the same extent, and shall entitle the Landlord to the same remedies, as
nonpayment of the Rent. Except as otherwise herein provided, all Additional Rent
payable hereunder shall be due within thirty (30) days of the date of Tenant's
receipt of Landlord's invoice therefor.
All payments of Rent and Additional Rent required hereunder shall be
paid when due, in lawful currency of the United States of America, at the office
of Landlord or at such other place as Landlord may from time to time direct. If
payment be by check, such checks shall be made payable to Landlord. All
payments of Rent and Additional Rent not received within five (5) days of the
due date thereof shall thereafter bear interest from the due date until paid at
the rate of 18% per annum, and said interest charge shall be collected as
Additional Rent hereunder.
6. SECURITY DEPOSIT. Intentionally omitted.
7. HOLDING OVER. Upon failure of Tenant to surrender possession of
the Premises upon the expiration of the Term of this Lease, as renewed and
extended hereunder, or the sooner termination thereof, Tenant shall pay to
Landlord, as an
occupancy charge, an amount equal to 150% of the rate of Rent and other sums
required to be paid under this Lease with respect to the year immediately
preceding the expiration or sooner termination of the Term of this Lease, as
applied to any period in which Tenant shall remain in possession after such
expiration or sooner termination of this Lease; provided, however, that in such
event Tenant shall not be released from any further costs, damages or
liabilities whether direct, indirect or consequential, suffered by Landlord and
occasioned by Tenant's holding over to the extent that such holding over extends
beyond thirty (30) days from the expiration of the Term of this Lease, as
renewed and extended hereunder, or the sooner termination thereof. In the event
of such holding over, Tenant shall be considered a tenant-at-will.
8. REAL ESTATE TAXES. As and for Additional Rent, Tenant shall pay
to Landlord, without setoff or deduction, any and all real estate taxes (as
defined below) relating to the Premises during the Term of this Lease. The term
"real estate taxes" shall mean all taxes and assessments (whether general or
special) levied, assessed or imposed at any time by any governmental body or
authority upon or against the Premises, this Lease, and the improvements to any
portion of the Premises, and includes any tax, assessment or licensing fees
levied, assessed or imposed at any time by any governmental body or authority
relating to Tenant's operations or property in the Premises or in connection
with the receipt of income or rents from the Premises to the extent that same
shall be in lieu of (and/or in lieu of an increase in) all or a portion of any
of the aforesaid taxes or assessments upon or against the Premises. The term
"real estate taxes" shall also include, to the extent that the same are charged
to Landlord rather than directly to Tenant, any of the following taxes relating
to Tenant's use, occupancy of, or operations conducted at the Premises: gross
receipts tax, ad valorem tax, capital stock or franchise tax, business privilege
tax, sales tax, parking tax, value added tax, or personal property tax, and any
similar taxes not presently in effect which may hereafter be assessed and levied
by any governmental body or other authority. "Real Estate taxes" shall not
include any of Landlord's franchise, business privilege, payroll, or federal or
state income tax or any estate or inheritance taxes unless the same shall be in
lieu of (and/or in lieu of an increase in) all or a portion of any of the
aforesaid real estate taxes or assessments upon or against the Premises. All
such real estate taxes due or payable shall be paid to Landlord within 30 days
of the date Tenant receives Landlord's invoice thereof. Tenant shall only be
responsible for real estate taxes imposed for tax years (or the pro rata portion
thereof for partial tax years) during the Term of this Lease and any extensions,
renewals, and hold-over periods hereof. A "tax year" shall be deemed to be a
calendar year, notwithstanding the assessment or collection thereof on a
different basis by any taxing authority.
Tenant may, at its sole cost and expense, contest any assessment or
levy of real estate taxes, provided that Tenant either pays such real estate
taxes under protest or deposits with Landlord, prior to the date on which the
taxes are due and payable, an amount which is necessary to pay the total amount
of such real estate taxes,
together with all penalties and interest, in the event that such contest is
unsuccessful. To the extent necessary therefor, Landlord will consent to execute
such documents and participate in such proceedings as may be reasonably
necessary.
9. USE OF PREMISES; RULES AND REGULATIONS. Tenant covenants that it
shall use and occupy the Premises solely as offices and warehousing facilities
in connection with Tenant's business and activities related thereto. Tenant
shall not use or occupy the Premises for any other purpose or business without
the prior written consent of Landlord which consent shall not unreasonably be
withheld or delayed if such proposed other purpose or business is consistent
with the character and nature of businesses operating in Thorn Hill RIDC Park.
Tenant shall observe and comply with all laws, rules, regulations and ordinances
applicable to the Premises and Tenant's use and occupancy thereof including all
rules and regulations of the Thorn Hill RIDC Park ("RIDC Park"). All such laws,
rules and regulations shall apply to Tenant and its employees, agents,
licensees, servants, invitees, contractors, permitted subtenants and assigns.
Any breach of said laws, rules and regulations shall, at Landlord's option,
constitute a default under this Lease to the same extent, and shall entitle
Landlord to the same remedies, as any other material default hereunder.
10. HAZARDOUS SUBSTANCES. Except as provided in Paragraph 10(c),
below, Tenant covenants that it shall not, at any time during the Term of this
Lease, place, store, install upon, discharge, release or generate on, in or
under the Premises, or allow to escape from the Premises, any pollutants or
other toxic or Hazardous Substances (as defined below), or containers or storage
or processing facilities thereof including, but not limited to, any asbestos or
asbestos containing materials, polychlorinated biphenyls ("PCBS") in the form of
electrical equipment, fluorescent light fixtures with ballasts, cooling oils or
any other form, or any solid, liquid, gaseous or thermal irritant or
contaminant, such as smoke, vapor, soot, fumes, alkalis, acids, chemicals,
pesticides, herbicides, sewage, industrial sludge or other similar wastes, or
industrial, nuclear or medical by-products, or install underground storage tanks
(whether filled or unfilled). Tenant shall protect, defend, indemnify and hold
harmless Landlord from any and all costs (including costs of remediation),
expenses (including attorneys' fees), liabilities, losses, damages, suits,
actions, fines, penalties, claims or demands of any kind arising out of or in
any way connected with, and Landlord shall not be liable to Tenant or any other
party on account of, the Tenant or Tenant's servants, agent's, employees,
licensees, invitees, and contractors placing, storing, installing, discharging,
releasing or generating on, in, under or about the Premises, or allowing to
escape from the Premises, any Hazardous Substances during the Term of this Lease
or any renewal or extension hereof.
(a) As used in this Lease, the following terms shall have the
following meanings:
"Environmental Rule" shall mean any Governmental Rule which relates to
Hazardous Substances, pollution or protection of the environment, including
without limitation any Governmental Rule relating to the generation, use
treatment, storage, release, transport or disposal of Hazardous Substances and
any common laws of nuisance, negligence and strict liability relating thereto,
and shall specifically include the Clean Water Act, also known as the Federal
Water Pollution Control Act, 33 U.S.C. (S) 1251 et seq., as amended by the Water
Quality Act of 1987, Pub. L. No. 100-4 (Feb. 4, 1987), the Toxic Substances
Control Act, 15 U.S.C. (S) 2601 et seq., the Clean Air Act, 42 U.S.C. (S) 7401
et seq., the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. (S)
136 et seq., the Safe Drinking Water Act, 42 U.S.C. (S) 300f et seq., the
Surface Mining Control and Reclamation Act, 30 U.S.C. (S) 1021 et seq., the
Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"),
42 U.S.C. (S) 9601 et seq., the Superfund Amendment and Reauthorization Act of
1986 ("XXXX"), Public Law 99-499, 100 Stat. 1613, the Emergency Planning and
Community Right to Know Act, 42 U.S.C. (S) 11001 et seq., the Resource
Conservation and Recovery Act ("RCRA"), 42 U.S.C. (S) 6901 et seq., and the
Occupational Safety and Health Act ("OSHA"), 29 U.S.C. (S) 655 and (S) 657, as
any of the same have been or may be amended, together with all rules,
regulations and orders issued thereunder.
"Governmental Person" shall mean any governmental, quasi-governmental,
judicial, public or statutory instrumentality, authority, agency, bureau, body
or entity of the United States of America or of any state, county, municipality
or other political subdivision located therein.
"Governmental Rule" shall mean any law (including common law),
statute, rule, regulation, ordinance, code, order, writ, judgment, injunction,
decree, guideline, directive or decision of any Governmental Person, whether or
not having the force of law and whether now or hereafter existing, as any of the
same may be amended.
"Hazardous Substance" means any substance which constitutes, in whole
or in part, a pollutant, contaminant or toxic or hazardous substance or waste
under, or the generation, use, treatment, storage, release, transport or
disposal of which is regulated by, any Governmental Rule, and shall specifically
include any substance which (i) constitutes a "hazardous substance" under CERCLA
or a "hazardous waste" under RCRA, (ii) exhibits any of the hazardous
characteristics enumerated in 40 C.F.R. Sections 261.20-261.24, inclusive, (iii)
constitutes any of those extremely hazardous substances listed under (S) 302 of
XXXX which are present in threshold planning or reportable quantities as defined
under XXXX, (iv) constitutes toxic or hazardous chemical substances which are
present in quantities which exceed exposure standards, as those terms are
defined under (S)(S) 6 and 8 of OSHA and 29 C.F.R. Part 1910, subpart 2, (v)
constitutes asbestos, urea formaldehyde, chlorinated
biphenyls (polychlorinated or monochlorinated) or petroleum products or (vi)
constitutes a hazardous material which, when transported, is subject to
regulation by the United States Department of Transportation at 49 C.F.R. Parts
171-199.
(b) Tenant shall comply with all Governmental Rules applicable to the
Premises and to Tenant's use and occupancy thereof, including without limitation
all Environmental Rules. Tenant shall obtain, maintain and comply with all
licenses and permits issued by any Governmental Person which are necessary in
connection with the ownership, occupancy or use of the Premises.
(c) Tenant shall not, and shall not permit any other Person to,
generate, use, treat, store, release or dispose of any Hazardous Substance on
the Premises; provided, that the foregoing shall not prohibit Tenant from using
or storing on the Premises reasonable quantities of petroleum products, cleaning
materials and other substances which fall within the definition of "Hazardous
Substance" and which are necessary for the conduct of its business or the
maintenance of the Premises so long as such use and storage is in compliance
with applicable Environmental Rules.
(d) Tenant shall notify Landlord immediately after becoming aware of
(i) any presence on or under the Premises, or on any property adjacent thereto,
of any Hazardous Substance in violation of any Environmental Rule or in excess
of any reportable quantity established under any Environmental Rule or (ii) any
violation of any Environmental Rule by Tenant or any other Person which affects
the Premises or could potentially impose any liability on Landlord. Tenant
shall forward to Landlord immediately upon its receipt thereof copies of all
orders, reports, notices and other communications relating to any of the
foregoing matters.
(e) Upon prior written notice from Landlord, Tenant shall permit such
Persons as Landlord may designate to visit the Premises and perform
environmental site investigations and assessments on the Premises for the
purpose of determining whether there is any unlawful presence of Hazardous
Substances on the Premises or any other condition which constitutes a violation
of any Environmental Rule. Tenant shall supply to such Persons all such
information regarding the Premises and Tenant's operations thereon as such
Persons may reasonably request. If any such assessment shall disclose a
material violation of any Environmental Rule by Tenant, the Tenant shall be
liable for the cost of such assessment, which amount shall be due as Additional
Rent hereunder; otherwise, Landlord shall pay the cost of such assessment.
(f) Tenant, at its sole expense, shall remediate any unlawful
presence of Hazardous Substances on or under the Premises in a timely manner and
in accordance with applicable Environmental Rules and directives of any
Governmental Person having authority over such remediation; provided, that
Tenant shall not be required to remediate any such unlawful presence of
Hazardous Substances (i) to the
extent that the same are present on or under the Premises on the date hereof or
(ii) to the extent that the same are not attributable to the acts, omissions, or
negligence of the Tenant or its employees, agents, invitees, customers,
contractors, successors and assigns.
(g) Tenant shall indemnify, defend and hold Landlord harmless from
and against any and all claims, losses, damages, liabilities, costs and expenses
(including without limitation reasonable attorneys' fees and court costs) which
arise out of any breach by Tenant of any of the foregoing covenants, which
obligation shall survive the expiration or earlier termination of this Lease.
(h) Landlord shall indemnify, defend and hold Tenant harmless from
and against any and all claims, losses, damages, liabilities, costs and expenses
(including without limitation reasonable attorney's fees and court costs) which
arise out of any environmental matter not an obligation of Tenant pursuant to
subparagraphs (a) through (g), above; therefore, such indemnity shall not extend
to claims, losses, damages, liabilities, costs or expenses as are caused by or
resulting from the acts, omissions, or negligence of the Tenant or its
employees, agents, invitees, customers, contractors, successors and assigns.
11. TENANT'S ACCEPTANCE. Tenant, by its taking possession of the
Premises, shall be deemed to have acknowledged that it has inspected the
Premises and any improvements made thereto, considers it to be suited for the
use intended by Tenant and shall accept the Premises as is and any improvements
thereon in their then present condition. The foregoing notwithstanding, prior
to the Commencement Date, Tenant shall have the right to inspect the Building
and the Premises and all systems and other components thereof. Prior to the
Commencement Date, Tenant shall notify Landlord in writing (i) of any material
defects in any major component of the HVAC, plumbing or electrical system of the
Premises ("Systems Defects"), and (ii) of any material defects in other
components of the Building or the Premises ("Non-Systems Defects"). Within 90
days of the Commencement Date, Landlord shall (i) remedy such Systems Defects,
and (ii) remedy such Non-Systems Defects to the extent that the cost to remedy
such Non-Systems Defects exceeds Five Thousand Dollars ($5,000), with Tenant
assuming responsibility for the repair of all Non-Systems Defects up to Five
Thousand Dollars ($5,000). Following the Commencement Date and with the
exception of repairs, if any, made as provided in this Section 11, all
maintenance and repair of the Premises, including without limitation the repair
of defects, if any, existing as of the Commencement Date and of which Landlord
was not notified as provided above, shall be governed as hereinafter provided.
12. ALTERATIONS AND ADDITIONS. No alteration, addition or
improvement to or installation in the Premises shall be made or permitted to be
made by Tenant without the express prior written consent of Landlord. Landlord
may impose such
conditions to its consent as it may elect, including conditions that Tenant (a)
obtain Landlord's approval of final plans and specifications; (b) obtain
Landlord's approval of all contractors and subcontractors and their respective
contracts; (c) obtain all permits, approvals, and certificates required by any
governmental or quasi-governmental bodies and, upon completion, provide said
certificates to Landlord; (d) carry, and cause all contractors and
subcontractors to carry, worker's compensation, general liability, personal and
property damage insurance; (e) agree at its sole cost to remove any such
alteration, addition, improvement or installation on or before the expiration or
sooner termination of the Term and to restore the Premises to its prior
condition; (f) require all contractors, subcontractors, suppliers and
materialmen to sign waiver and release of lien agreements in form, scope and
substance satisfactory to Landlord; and (g) provide security satisfactory to
Landlord in order to insure that the Premises shall be kept free from mechanics'
or materialmen's liens and Hazardous Wastes and that the cost of all alterations
or additions will be fully paid by Tenant.
Unless Landlord requires their removal as set forth hereinabove at the
time of its consent, all alterations, additions, improvements and installations
which may be made to the Premises shall become the property of Landlord upon
installation and shall remain upon and be surrendered with the Premises.
Notwithstanding the foregoing, Tenant's personal property and trade fixtures,
other than that which is affixed to the Premises so that it cannot be removed
without material damage to the Premises, shall remain the property of Tenant and
may be removed by Tenant at any time during the Term so long as Tenant is not in
default under this Lease. Tenant agrees to repair immediately, at is sole cost
and expense, any and all damage to the Premises caused by, or in connection
with, the removal of any articles of personal property, business or trade
fixtures, alterations, improvements and installations, to Landlord's
satisfaction.
13. MAINTENANCE OF THE PREMISES. Tenant covenants and agrees to use,
maintain and occupy the Premises in a careful, safe and proper manner and shall
not permit the Premises to be used in a manner which will injure the reputation
of either Landlord or Tenant or use the Premises in a manner which renders it a
nuisance or annoyance to the other tenants of the RIDC Park. Tenant shall, at
its own cost and expense, keep the Premises and all leasehold improvements
therein, including all parking areas and sidewalks, in a clean, safe and healthy
condition and shall clean the snow, ice, dirt and rubbish from the parking areas
and sidewalks on and contiguous to the Premises during the Term of this Lease.
In the event that any of the parking areas, sidewalks, or other parts of the
Premises shall be in an unsafe, unclean, or unsightly condition, Tenant shall
remedy such condition to Landlord's satisfaction within ten (10) days from the
date of receipt of Landlord's notice of such condition, or Landlord at its
option may correct such condition and the entire cost thereof plus 15% for
Landlord's administrative costs and overhead shall be collected from Tenant as
Additional Rent.
14. UTILITIES, MAINTENANCE AND BUILDING SERVICES. Tenant shall be
responsible for and shall provide, at its own cost and expense, the following
utilities, maintenance, services and facilities in and about the Premises:
(a) Any and all oil, gas, electricity, water, telephone, sanitary
sewer, storm or drainage sewer and all other utilities utilized
in or about the Premises.
(b) Maintenance and service of all HVAC systems and conduits and the
operation of adequate air conditioning (between the first day of
May and the first day of October) and heat (between the first day
of October and first day of May) in such respective amounts as
Landlord shall deem to be necessary to protect and preserve the
Building.
(c) Maintenance and service of all restrooms, and all plumbing and
sewer lines in and about the Premises.
(d) Maintenance and service of all electrical wires, cable, fixtures,
outlets and boxes in and about the Premises.
(e) Maintenance of all hardware installed in the Building.
(f) Cleaning of both the outside (four times per calendar year) and
inside of exterior window panes of the Building.
(g) Janitorial service, including but not limited to the removal of
debris, cleaning of space, vacuuming of carpets, and dusting of
furniture, at least five days per week, except holidays.
(h) Other maintenance as may be required to preserve and protect the
Premises and its constituent parts, including those items
contained in Sections 13, 15, 16 and 17 hereof.
15. LANDSCAPING. Tenant shall, at its own cost and expense, maintain
all lawns, gardens, trees, and shrubbery on the Premises in a manner consistent
with the level of quality maintained throughout the RIDC Park.
16. REFUSE REMOVAL. Tenant shall, at its own cost and expense,
provide for all trash, garbage, and refuse removal from the Premises at all
times during the Term of this Lease. Tenant shall at all times comply with all
health and safety laws, rules, regulations and ordinances with respect to the
storage and removal of trash, garbage and refuse on and from the Premises.
17. REPAIRS. At all times during the Term of this Lease, Tenant
shall make, at its sole cost and expense, any and all necessary repairs and
capital improvements to the Building, both structural and non-structural in
order to preserve, protect, and maintain the Premises to their condition as of
the date hereof, reasonable wear and tear excepted, or to such superior
condition as Tenant may desire, including but not limited to the walls
(interior), doors (both interior and exterior), plumbing (including without
limitation, all filters, drains, water, gas and sewer lines), heating, air
conditioning, and electrical systems and equipment (including, without
limitation, interior and exterior lighting and security systems), windows,
floors, (including floor coverings such as, without limitation, tiles or
carpeting) and all other items which constitute a part of the Building and the
Premises. Tenant's obligation for repairs extends to repairs made after the
Tenant has vacated the Premises which were necessary because of Tenant's use or
occupancy of the Premises. If the Tenant refuses or neglects to commence such
repairs or fails to diligently prosecute the same to completion within fifteen
(15) days from the date on which Tenant receives written notice from Landlord of
the need therefor, Landlord may make such repairs at the expense of Tenant and
such expense plus fifteen percent for Landlord's cost of administration and
overhead shall be collectible as Additional Rent hereunder. Tenant's repair
obligations shall not extend to the exterior walls or roof except for any
maintenance or repair thereto required due to the willful misconduct, gross
negligence or negligence of Tenant, its employees, agents, invitees, assignees
or subtenants. The foregoing notwithstanding, recognizing that the Term of this
Lease is five (5) years, the following limitations shall apply to Tenant's
obligation to replace (as opposed to repair, to which no limitation shall apply)
all or any major component (as opposed to replacement of minor components in the
course of normal maintenance and repair) of the plumbing (including without
limitation, all filters, drains, water, gas and sewer lines), heating, air
conditioning, and electrical systems and equipment (the "Building Systems"):
(A) Tenant's obligations shall be limited to Twenty-Five Thousand Dollars
($25,000) in the aggregate per one year period during each one year period of
the Term (as the same may be extended or renewed hereunder), provided that the
unused portion of such annual limit shall carry forward cumulatively to each
succeeding year of the Term to increase the limit for such succeeding year; (B)
If, because the relevant dollar limit for Tenant's obligations under this
Section 17 is exceeded in a given year, it becomes necessary for Landlord to
contribute to the cost of replacing all or any major component of the Building
Systems, Landlord shall pay Landlord's share of such cost, and such cost paid by
Landlord shall be amortized by Landlord over a ten (10) year amortization
period, with the monthly portion of such amortized cost charged to and paid by
Tenant as Additional Rent hereunder. In the event that the amortization period
exceeds the Term of this Lease (as the same may be extended, renewed, or earlier
terminated hereunder), Tenant shall not be responsible for the balance of such
amortized costs not yet charged as Additional Rent.
18. EMERGENCY REPAIRS. Landlord reserves the right to interrupt
heating, air conditioning, plumbing, electrical, gas, or water service, and/or
other services in the Building when in Landlord's reasonable judgment, such
interruption is deemed necessary by reason of accident, or emergency or for
repairs, alterations, replacements or improvements which Landlord is required to
make hereunder. The foregoing notwithstanding, Landlord shall use its best
reasonable efforts to avoid disrupting Tenant's use of the Premises for its
intended purpose.
19. ASSIGNMENT AND SUBLETTING. Tenant, for itself, its successors,
legal representatives and assigns, expressly covenants that Tenant shall not,
either voluntarily or by operation of law, assign, transfer, mortgage or
otherwise encumber this Lease or sublet the Premises or any part thereof or
grant any license, concession or other right of occupancy, or permit any part
thereof to be used or occupied by anyone other than Tenant without the prior
written consent of Landlord, which consent shall not unreasonably be withheld or
delayed. The foregoing notwithstanding, Landlord's consent shall not be
considered unreasonably withheld if (i) the proposed subtenant's or assignee's
financial resources are unacceptable to Landlord or any mortgagee of Landlord or
(ii) based on the unacceptability to the Landlord (or any mortgagee of Landlord)
of the proposed subtenant's or assignee's proposed use or business. If Tenant
is a corporation, then any transfer of this Lease from Tenant by merger,
consolidation or dissolution or any change in ownership or power to vote a
majority of the voting stock in Tenant outstanding on the execution date of this
Lease shall constitute an assignment for the purposes of this Section 19. As
used in the previous sentence, the term "voting stock" shall refer to shares of
capital stock regularly entitled to vote for the election of directors of the
corporation involved. In the event of any assignment or sublease (to which
Landlord consents in advance), Tenant shall not be released from its obligations
under this Lease, notwithstanding any amendment, modification, supplement or
extension thereafter made by Landlord with respect to this Lease. No consent
given by Landlord to any assignment or subletting shall be construed to be a
consent to any further assignment of this Lease or subletting of the Premises by
Tenant or any other party, and Landlord's right to withhold its consent with
respect thereto is hereby expressly reserved.
In the event Tenant or any of its permitted assignees or subtenants
should desire to assign this Lease or sublet the Premises or any part thereof,
Tenant shall provide written notice thereof to Landlord at least thirty (30)
days in advance of the date on which Tenant desires to make such assignment or
sublease, which notice shall specify: (a) the name, address and business of the
proposed assignee or sublessee, (b) the amount and location of the space in the
Premises affected, (c) the proposed effective date and duration of the
subletting or assignment, (d) a certified financial statement indicating the
financial worthiness of the proposed assignee or subtenant, (e) a copy of the
proposed sublease or instrument of assignment which shall include the proposed
rent to be paid by said sublessee or assignee, and (f) any other information
about the
proposed assignee or sublessee as Landlord may reasonably request. Landlord
shall have a period of fifteen (15) days following receipt of such notice within
which to notify Tenant in writing that Landlord elects either (i) to terminate
this Lease as to the space so affected as of the date so specified by Tenant, in
which event Tenant shall on that date be relieved of all further obligations to
pay Rent as to such space (such reduction in Rent to be prorated based on the
rentable area of the remaining portion of the Premises); or (ii) to permit
Tenant to assign this Lease or sublet such space; or (iii) to withhold
Landlord's consent in reasonable discretion (subject to the qualifications in
the foregoing paragraph) and to continue this Lease in full force and effect as
to the entire Premises. If Landlord should fail to notify Tenant in writing of
such election within said fifteen (15) day period, Landlord shall be deemed to
have elected option (iii) above. The provisions of this Section shall be binding
on all successive assignees and subtenants.
Tenant may, without Landlord's consent, assign this Lease or sublet
the Premises or any part thereof to any subsidiary or affiliate of Tenant,
provided that prior to the effectiveness of such assignment or subletting,
Tenant demonstrates to the satisfaction of Landlord that such subsidiary or
affiliate has a net worth of not less than Forty Million Dollars ($40,000,000)
and provided further that Tenant remains substantially in control of the
operations of such subsidiary or affiliate for the duration of the Term of the
Lease. For purposes of this Section 19, the terms "subsidiary" and "affiliate"
shall be defined as any corporation or entity which controls Tenant, is
controlled by Tenant, or is under the common control with Tenant by the same
parent corporation or other entity. If such assignment or sublease is made,
Tenant shall remain liable as a surety under the terms hereof notwithstanding
such assignment or sublease unless otherwise agreed to by the parties.
20. INSPECTION. Landlord and its employees, servants and agents
shall have the right to enter the Premises at all reasonable times upon
reasonable notice (which notice may be oral) during business hours for the
purpose of showing the same to prospective purchasers, mortgagees, or, within 12
months of the expiration of the Term of this Lease, to prospective tenants of
the Premises, or for making such alterations, repairs, improvements or additions
to the Premises or portions of the Premises which Landlord is required to make
hereunder, or examining or inspecting the Premises in order to ascertain whether
Tenant is complying with all of its obligations hereunder. Landlord shall be
allowed to take all material into and upon the Premises that may be required
therefor without the same constituting an eviction of Tenant in whole or in
part, and the Rent shall in no way xxxxx while said alterations, repairs,
improvements or additions are being made, whether by reason of loss or
interruption of Tenant's business or otherwise. If representatives of Tenant
shall not be present to open and permit entry into the Premises at any time when
such entry by Landlord is necessary or permitted hereunder, Landlord may enter
by means of a master key (or forcibly in the event of an emergency) without
liability to Tenant and without such entry constituting either an eviction of
Tenant or termination of this Lease.
21. SURRENDER OF PREMISES. (a) At the end of the Term, or any
renewal or extension thereof, Tenant shall surrender the Premises to Landlord,
together with all alterations, additions, renovations and improvements thereto,
in broom-clean condition and in good order and repair except for ordinary wear
and tear and damages which Tenant is not obligated to repair hereunder and which
Tenant or its servants, agents, employees, licensees or invitees has not caused,
failing which Landlord may restore the Premises to such condition and Tenant
shall pay the cost of said repair and restoration. If not then in default as to
the payment of any Rent or Additional Rent due and owing hereunder, Tenant shall
have the right at the end of the Term to remove any personal property and trade
fixtures to the extent permitted in Section 12 hereof. Tenant's goods, effects,
personal property, business and trade fixtures, machinery and equipment not
removed by Tenant at the expiration or other termination of this Lease (or
within forty-eight (48) hours after a termination by reason of Tenant's default)
shall be considered abandoned and Landlord may dispose of the same as it deems
expedient, but Tenant shall promptly reimburse Landlord for any expenses
incurred by Landlord in connection therewith including without limitation the
cost of removal thereof and repairing any damage occasioned by such removal.
Tenant shall surrender the Premises to Landlord at the end of the term hereof,
without notice of any kind, and Tenant waives all right to any such notice as
may be provided under any laws now or hereafter in effect. Tenant's obligation
to observe or perform this covenant shall survive the expiration or other
termination of the Term of this Lease.
(b) TENANT EXPRESSLY WAIVES TO LANDLORD THE BENEFIT TO TENANT OF 68
P.S. SECTION 250.501, BEING SECTION 501 OF THAT ACT, APPROVED APRIL 6, 1951,
ENTITLED "LANDLORD AND TENANT ACT OF 1951", AS MAY BE AMENDED FROM TIME TO TIME,
REQUIRING NOTICE TO QUIT UPON THE EXPIRATION OF THE TERM OF THIS LEASE OR AT THE
EXPIRATION OF ANY EXTENSION OR RENEWAL THEREOF, OR UPON ANY EARLIER TERMINATION
OF THIS LEASE, AS HEREIN PROVIDED. TENANT COVENANTS AND AGREES TO VACATE,
REMOVE FROM AND DELIVER UP AND SURRENDER THE POSSESSION OF THE PREMISES TO
LANDLORD UPON THE EXPIRATION OF THE TERM OR UPON THE EXPIRATION OF ANY EXTENSION
OR RENEWAL THEREOF, OR UPON ANY EARLIER TERMINATION OF THIS LEASE, AS HEREIN
PROVIDED, WITHOUT SUCH NOTICE, IN THE CONDITION AS REQUIRED ABOVE.
22. WAIVER OF CLAIMS. Landlord and Landlord's agents, servants and
employees shall not be liable for, and Tenant hereby releases Landlord, its
agents, servants and employees from, all liability in connection with any and
all loss of life, personal injury, damage to or loss of property, or loss or
interruption of business occurring to Tenant, its agents, servants, employees,
invitees, licensees, visitors or any other person, firm, corporation or entity,
in or about or arising out of, in or upon the Premises, including, without
limitation, (a) any fire, other casualty, accident, occurrence
or condition; (b) any defect in or failure of (i) plumbing, sprinkling,
electrical, heating or air conditioning systems or equipment, or any other
systems and equipment, and (ii) the stairways, railings or walkways; (c) any
steam, gas, oil, water, rain, frost, ice, snow or flooding that may leak into,
issue or flow from any part of the Premises or from the drains, pipes or
plumbing, sewer or other installation of same, or from any other cause, place or
quarter; (d) the breaking or disrepair of any services, installations and
equipment; (e) the falling of any fixtures or any wall or ceiling materials; (f)
broken or dislodged glass; (g) patent or latent defects; (h) the carrying out of
any construction work or repairs; (i) the exercise of any right by Landlord
under the terms of this Lease; (j) any acts or omissions of other persons; (k)
any acts or omissions of Landlord, its agents, servants, and employees excepting
an act of negligence by any such person; (l) acts or omissions of third party
contractors, and (m) theft, act of God, act of a public enemy, injunction, riot,
strike, labor dispute, public demonstration, insurrection, war, court order, or
any order of any governmental authority having jurisdiction over the Premises.
23. SPRINKLERS. If any sprinkler system or other fire prevention,
detection, or suppression system installed in the Building or any of its
appliances shall be damaged or destroyed by a cause other than fire or other
casualty described in Section 25 and by reason of any act or omission of Tenant
or of Tenant's agents, servants, employees, contractors, licensees or invitees;
or if the Board of Fire Underwriters of any bureau, department or official of
the state or city government having jurisdiction shall require or recommend that
any changes, modifications, alterations, or additional sprinkler heads or other
fire prevention, detection, suppression system or other equipment be installed,
made or supplied by reason of Tenant's business, or by any changes in the
location of partitions, trade fixtures, or other contents of the Premises or if
any such changes, modifications, alterations, additional sprinkler heads or
other such equipment become necessary to prevent the imposition of a penalty or
charge against the full allowance for a sprinkler system in the initial
insurance rate as fixed by the appropriate board or authority, or by a fire
insurance company, then, in any such event Tenant shall be liable for the cost
of installing, repairing or replacing as the case may be, any such applications
or equipment, and the cost of any such installation, changes, modifications,
alterations, additional sprinkler heads or such other equipment.
24. INDEMNIFICATION AND LIABILITY. Tenant shall protect, defend,
indemnify, and hold harmless Landlord from and against any and all costs,
expenses (including attorneys' fees), liabilities, losses, damages, suits,
actions, fines, penalties, claims or demands of any kind arising out of or in
any way connected with, and Landlord shall not be liable to Tenant on account of
(i) any failure by Tenant to perform any of the agreements, terms, covenants or
conditions of this Lease required to be performed by Tenant, (ii) any failure by
Tenant to comply with any statutes, ordinances, laws, rules, regulations or
orders of any governmental authority, (iii) any act or omission of Tenant or any
of its servants, employees, agents, contractors, invitees or licensees, (iv) any
accidents, death or personal injury occurring in, on or about the Premises, or
(iv) Tenant's use or occupancy of the Premises.
25. FIRE OR OTHER CASUALTY.
(a) In the event that the Premises shall be damaged in whole or in
part as a result of the fault or neglect of Tenant or any of its servants,
employees, agents, contractors, invitees or licensees, then Tenant at its own
expense shall promptly repair and restore the same, and the Rent shall not be
abated or apportioned. Any election by Landlord to repair or restore the
Premises or any portion thereof after any damage caused in whole or in part by
the fault or neglect of Tenant or any of its servants, employees, agents,
contractors, invitees or licensees shall not relieve Tenant of any
responsibility under this Lease.
(b) In the event that the Premises shall be damaged by fire or other
casualty without the fault or neglect of Tenant or its servants, employees,
agents, contractors, invitees or licensees, and Tenant shall not have the
obligation to repair or restore the same as provided in subsection (a) above,
then, if the same can be restored within one-hundred eighty (180) days after
such casualty, Landlord shall commence the restoration of the same promptly upon
settlement of such loss with all insurance carriers and shall diligently
complete the same, subject to delays as provided in Section 36 of this Lease,
and this Lease shall remain in full force except that Rent shall xxxxx with
respect to the unusable portion of the Premises, as described below. In the
event that Landlord shall not have completed the restoration as aforesaid within
one hundred eighty (180) days after such casualty, subject to delays as provided
in Section 36 of this Lease, then Tenant shall have the right to terminate this
Lease as its sole remedy against Landlord. In no event shall Tenant have any
right to terminate this Lease if such damage is caused in whole or in part by
the fault or neglect of Tenant or any of its servants, employees, agents,
contractors, invitees or licensees. Except as provided in subsection (a), in
the event of damage or destruction to the Premises in accordance with this
Section 25(b), Rent shall be apportioned during the period of any restoration
according to the part of the Premises which is usable by Tenant (and shall xxxxx
with respect to the unusable portion of the Premises) and Rent shall recommence
upon the completion of such restoration by Landlord.
(c) In the event of any fire or other casualty, all of Tenant's
insurance proceeds payable as a result of such casualty (other than proceeds as
a result of damage to Tenant's personal property which Tenant is entitled by
this Lease to remove upon the expiration of the Term) shall be paid directly by
Tenant's insurer to Landlord and Tenant hereby assigns the same to Landlord and
authorizes and directs such insurer to make such payments directly to Landlord.
Tenant shall name Landlord as the principal loss payee on all casualty insurance
policies of Tenant with respect to the Premises or the contents thereof. In the
event that this Lease shall be terminated as
provided in this Section, Landlord shall have the right to all insurance
proceeds assigned to Landlord pursuant to this subsection. In the event that
this Lease shall not be so terminated, Landlord shall have the right to retain
such proceeds to the extent required by Landlord to defray the cost of
restoration of the Premises as provided in subsection (b) above.
26. INSURANCE. Tenant shall, at its own cost and expense, obtain or
cause to be obtained, insurance policies naming the Landlord and any mortgagee
of Landlord as a direct loss payee or additional insured, as appropriate, under
said policies insuring against such risks, and in such amounts, as follows:
(i) Broad perils coverage, including flood and earthquake coverage as
appropriate, at all times in an amount equal to 100% of the full replacement
cost and full insurable value of the Premises, exclusive of excavations and
foundations, with such insurance to provide for unqualified replacement cost
claim recovery;
(ii) Boiler and Machinery coverage at all times in an amount equal to
100% of the full replacement cost and full insurable value of the Premises
insuring against all losses and damages arising from such occurrences not
covered by All Risk coverage including the explosion of a boiler or similar
steam generating vessel;
(iii) comprehensive general liability insurance with a minimum limit
of $2,500,000 per person and $5,000,000 per occurrence, and property damage
coverage with a minimum limit of $2,500,000;
(iv) Worker's Compensation Coverage and any other type of insurance
required by the laws of the Commonwealth of Pennsylvania; and
(v) rental and business interruption insurance covering expenses of
operating the Premises for a period of not less than 12 months following any
damage to or destruction of the Premises.
All of the insurance policies (including endorsements) required
hereunder (i) shall expressly provide that the coverage shall not be materially
changed, reduced or canceled absent thirty (30) days' prior written notice to
the Landlord; (ii) shall be limited to insure Landlord's insurable interest
alone (and not that of Tenant) or if said policies are to include the insurable
interest of Tenant, shall contain an endorsement to the effect that Landlord's
insurable interest shall not be reduced or invalidated by any act or neglect of
Tenant or of any subtenant of the Premises, nor by the use of the Premises by
such party for purposes more hazardous than are permitted by the policy; (iii)
shall not contain any clause which would result in the insured thereunder being
required to carry insurance with respect to the Premises or the property covered
thereby, in an amount equal to a minimum specific percentage of the full
replacement cost of such property in
order to prevent the insured named therein from becoming a co-insurer of any
loss under such policy; (iv) shall be issued by an insurer or insurers licensed
in Pennsylvania as an insurance carrier within the state, and rated no less than
"A, VIII" by the Best Key Rating Guide published by the A.M. Best Company; (v)
shall contain a waiver of subrogation; and (vi) shall contain standard non-
contributory mortgagee clauses in favor of and acceptable to any mortgagee of
Landlord.. The Tenant shall provide the Landlord, within five (5) business days
following Landlord's written request, with certificates of insurance evidencing
the coverage provided by the insurers at such times as may be necessary (but in
no event less than once each year) to show that insurance is being maintained as
required by this Section 26. In the event Tenant shall fail to deliver to
Landlord such certificates evidencing that such coverage is in full force and
effect, Landlord may undertake to obtain such insurance and the full cost
thereof shall be payable hereunder by Tenant as Additional Rent.
27. CONDEMNATION. In the event that the entire Premises is taken for
any public or quasi-public use or purpose in eminent domain proceedings, or in
the event the entire Premises is conveyed to a governmental authority or other
entity having the power of eminent domain ("condemning authority") in lieu of
such proceedings, this Lease shall terminate upon the date when the possession
shall be surrendered to said condemning authority. Any prepaid Rent
attributable to periods after such termination date shall be refunded to Tenant.
Tenant shall not be entitled to share in or receive any part of such
condemnation award or payment in lieu thereof, the same being hereby assigned to
Landlord by Tenant; provided, however, that Tenant shall be entitled to seek its
moving expenses so long as the same do not reduce any amount otherwise payable
to Landlord.
In the event eminent domain proceedings shall be instituted in order
to take a portion of either the Premises or the Building, or if the grade of any
street or alley adjacent to the Premises is changed so that, as a result of
either such events, structural alteration or reconstruction of a portion of the
Building is necessary or desirable in Landlord's judgment, Landlord may elect to
terminate this Lease by giving Tenant not less than ninety (90) days' notice of
termination prior to a termination date specified in such notice, and any
prepaid Rent attributable to periods after such termination date specified in
such notice shall be refunded to Tenant. If Landlord does not so elect to
terminate this Lease, this Lease shall be and remain in full force and effect
for the balance of its term, except that Rent shall be proportionately abated to
the extent of any portion of the Building taken.
In the event eminent domain proceedings shall be instituted in order
to take a Material portion of the Building or the Premises, Tenant may elect to
terminate this Lease by giving Landlord not less than ninety (90) days' notice
of termination prior to a termination date specified in such notice, and any
prepaid Rent attributable to periods after such termination date specified in
such notice shall be refunded to Tenant; such
notice shall be ineffective if, prior to the expiration of such 90 day period,
Landlord agrees in writing to restore within 180 days from the date of such
notice the portion of the Building or Premises taken, in which case, this Lease
shall be and remain in full force and effect for the balance of its term, except
that Rent shall be proportionately abated to the extent of the portion taken
until such restoration is completed. For purposes of this provision, a taking
shall not be considered "Material" unless the taking (i) reduces the rentable
square footage of the Building by more than 33% (ii) eliminates ingress or
egress to and from the Premises, or (iii) eliminates more than 33% of the
parking spaces on the Premises. If Tenant does not so elect to terminate this
Lease, this Lease shall be and remain in full force and effect for the balance
of its term, except that Rent shall be proportionately abated to the extent of
any portion of the Building taken.
Tenant shall not share in such condemnation award or payment in lieu
thereof or in any award for damages resulting from any taking, the same being
hereby assigned to Landlord by Tenant; provided, however, that nothing herein
shall preclude Tenant from separately claiming and receiving from the condemning
authority, if legally payable, compensation for the taking of Tenant's tangible
property (exclusive of fixtures or leasehold improvements), for Tenant's removal
and relocation costs and/or for Tenant's loss of business and/or business
interruption, provided that such compensation does not reduce any compensation
otherwise payable to Landlord.
28. SUBORDINATION AND ATTORNMENT. Tenant accepts this Lease subject
and subordinate in all respects to all mortgages, liens and other encumbrances
which may now or hereafter be placed on or affect the Premises or any part
thereof, including without limitation subject and subordinate to the terms,
rights, privileges and lien(s) thereof, irrespective of any obligations which
may be secured thereby. Such subordination shall be self-operative, and no
further instrument of subordination shall be required by any mortgagee.
However, in confirmation of such subordination, within ten (10) days after
request by Landlord, Tenant shall execute and deliver promptly any and all
certificates or other written assurances which Landlord or any mortgagee of all
or any part of the premises may request, designed to give effect to or provide
evidence of the same. In the event of a sale in foreclosure of any mortgage to
which this Lease is subordinate, or a transfer in lieu of foreclosure, or a
taking of possession of the Premises by the mortgagee or other person acting for
or through the mortgagee under any mortgage to which this Lease is subordinate,
then, and upon the happening of any such events, Tenant shall attorn to and
recognize the purchaser as the party who, but for this Lease, would be entitled
to possession of the Premises. No holder of any mortgage shall, nor shall have
the power to, join Tenant in any action to foreclose such mortgage, or in any
other action or proceeding to enforce the rights of the holder of such mortgage,
for the purpose of terminating Tenant's interest or estate under this Lease, and
Tenant's right to possession shall not be disturbed thereby so long as Tenant is
not in default hereunder.
29. ESTOPPEL CERTIFICATES. Tenant shall, at any time and from time
to time, within a period of ten (10) days following written request from
Landlord, execute, acknowledge and deliver to Landlord a written statement
certifying (a) that a true and correct copy of this Lease is attached to such
statement, (b) that this Lease is in full force and effect and unmodified (or,
if modified, stating the nature of such modification and attaching a copy
thereof), (c) the date to which the Rent reserved hereunder has been paid, (d)
that there are not, to Tenant's knowledge, any uncured defaults on the part of
Landlord hereunder, or specifying such defaults if any give rise to claims
hereunder, and (e) as to such other matters as Landlord or any prospective
purchaser or mortgagee may reasonably request. Any such statement may be relied
upon by Landlord and any prospective purchaser or mortgagee of all or any part
of the Premises. Tenant's failure to deliver such statement within the said
period shall be conclusive upon Tenant that this Lease is in full force and
effect and unmodified, and that there are no uncured defaults in Landlord's
performance hereunder.
30. EVENT OF DEFAULT. The occurrence of any of the following shall,
at Landlord's option, constitute a material default and breach of this Lease by
Tenant (an "Event of Default"):
(a) A failure by Tenant to pay any Rent or Additional Rent when due
hereunder, where such failure continues for five (5) days;
(c) The filing of any lien against the Premises or any portion
thereof or interest therein as a result of the act or omission of the Tenant
which is not discharged or insured over or released within thirty (30) days
thereafter;
(d) A failure by Tenant to fully observe and perform the provisions
or covenants of this Lease contained in Sections 10(c), 20, 21, 24, 26, 28 and
29 to be observed or performed by Tenant, where such failure continues for five
(5) days after written notice thereof from Landlord to Tenant;
(e) A failure by Tenant to fully observe and perform any other
provision or covenant of this Lease to be observed or performed by Tenant, where
such failure continues for thirty (30) days after written notice thereof from
Landlord to Tenant or such longer period as is reasonably necessary to cure such
failure, provided that Tenant diligently prosecutes the same to completion; or
31. ACCELERATED RENT. In the event of any Event of Default, the Rent
reserved herein for the entire unexpired portion of the Term shall, at
Landlord's option, thereupon immediately become due and payable. To the extent
permitted by law, Tenant shall be obligated for such accelerated Rent regardless
of which, if any, of the other remedies provided either in this Lease or by law
the Landlord elects to pursue.
32. REMEDIES. In the event of any Event of Default, Landlord, at its
option, may terminate this Lease upon and by giving written notice of
termination to Tenant, or Landlord, without terminating this Lease, may at any
time after an Event of Default, without notice or demand additional to that
which may be required by Section 30 hereof, and without limiting Landlord in the
exercise of any other right or remedy which Landlord may have by reason of such
Event of Default or breach, exercise any one or more of the remedies hereinafter
provided in this Section or as otherwise provided at law or in equity, all of
such remedies (whether provided herein or by law) being cumulative and not
exclusive:
(a) Landlord may enter the Premises (with or without process of law
and without thereby incurring any liability to Tenant and without such entry
being constituted an eviction of Tenant or termination of this Lease) and take
possession of the Premises and all personal property of every kind on the
Premises, and Landlord may (i) apply against the accelerated Rent and all other
Rent or Additional Rent becoming due or payable to Landlord, and the expenses,
including attorney's fees, which Landlord may have incurred in connection with
such repossession, either the value of such personal property or the proceeds,
after selling expenses, from the sale of such personal property, whichever
Landlord chooses to do, and (ii) at any time at its option relet the Premises or
any part thereof for the account of Tenant, for such terms, upon such conditions
and at such rental as Landlord may elect. In the event of such reletting, (1)
Landlord shall receive and collect the rent therefrom and shall first apply such
rent against such expenses as Landlord may at any time or from time to time have
incurred in recovering possession of the Premises, placing the same in good
order and condition, altering or repairing the same for reletting, and such
other expenses, commissions and charges, including attorney's fees, which
Landlord may at any time or from time to time have paid or incurred in
connection with such repossession and reletting, and then shall apply such rent
against other sums payable by Tenant to Landlord hereunder, and (2) Landlord may
execute any lease in connection with such reletting in Landlord's name or in
Tenant's name, as Landlord may see fit, and the tenant of such reletting shall
be under no obligation to see to the application by Landlord of any rent
collected by Landlord, nor shall Tenant have any right to collect any rent under
such reletting. No re-entry by Landlord shall be deemed to be an acceptance of
a surrender by Tenant of this Lease or of the Premises.
(b) Landlord may cure, at any time, without notice except as
otherwise herein provided, any default by Tenant under this Lease; and whenever
Landlord so elects, all costs and expenses incurred by Landlord in curing a
default, including, without limitation, reasonable attorneys fees, together with
interest on the amount of costs and expenses so incurred at the rate of 18% per
annum which shall be paid by Tenant to Landlord on demand, and shall be
recoverable as Additional Rent.
(c) FOR VALUE RECEIVED AND UPON THE OCCURRENCE OF AN EVENT OF DEFAULT
HEREUNDER, OR UPON TERMINATION OF THE TERM OF THIS LEASE AND THE FAILURE OF
TENANT TO DELIVER POSSESSION TO LANDLORD, TENANT, AT THE OPTION OF LANDLORD,
AUTHORIZES AND EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD WITHIN THE
COMMONWEALTH OF PENNSYLVANIA TO APPEAR FOR TENANT AND ANY OTHER PERSON CLAIMING
UNDER, BY OR THROUGH TENANT, AND CONFESS JUDGMENT FORTHWITH AGAINST TENANT AND
SUCH OTHER PERSONS AND IN FAVOR OF LANDLORD IN AN AMICABLE ACTION OF EJECTMENT
FOR THE DEMISED PREMISES, WITH RELEASE OF ALL ERRORS. LANDLORD MAY FORTHWITH
ISSUE A WRIT OR WRITS OF EXECUTION FOR POSSESSION OF THE DEMISED PREMISES
WITHOUT LEAVE OF COURT, AND LANDLORD MAY, BY LEGAL PROCESS, WITHOUT NOTICE RE-
ENTER AND EXPEL TENANT FROM THE DEMISED PREMISES, AND ALSO ANY PERSONS HOLDING
UNDER TENANT.
33. WAIVER. The failure or delay on the part of either party to
enforce or exercise at any time any of the provisions, rights or remedies in
this Lease shall in no way be construed to be a waiver thereof, nor in any way
to affect the validity of this Lease of any part hereof, or the right of either
party to thereafter enforce each and every such provision, right or remedy. No
waiver or any breach of this Lease shall be held to be a waiver of any other or
subsequent breach. The receipt by Landlord of Rent at a time when the Tenant is
in default under this Lease shall not be construed as a waiver of such default.
The receipt by Landlord of a lesser amount than the Rent or Additional Rent due
shall not be construed to be other than a payment on account of the Rent or
Additional Rent then due, nor shall any statement on Tenant's check or any
letter accompanying Tenant's check be deemed an accord and satisfaction, and
Landlord may accept such payment without prejudice to Landlord's right to
recover the balance of the Rent or Additional Rent due or to pursue any other
remedies provided in this Lease. No act or thing done by Landlord or Landlord's
servants, agents or employees during the Term shall be deemed an acceptance of a
surrender of the Premises, and no agreement to accept such a surrender shall be
valid, unless in writing and signed by Landlord.
34. QUIET ENJOYMENT. If and so long as Tenant pays the Rent or
Additional Rent and observes and performs all of the covenants, conditions and
provisions on Tenant's part to be observed and performed hereunder, Tenant shall
and may peaceably and quietly have, hold and enjoy the Premises for the Term and
any renewal thereof, subject nevertheless to all of the provisions of this
Lease.
35. SIGNS. Tenant shall not place, install or affix, or permit the
placement, installation or fixation of any sign of any nature whatsoever which
can be seen from outside the Building without first obtaining the written
consent of Landlord. All such signs shall be installed and maintained by Tenant
in compliance with all applicable laws, statutes, ordinances, rules and
regulations of all governmental authorities and agencies
and the RIDC Park. Any permitted signs installed on or about the Premises shall
be removed at the expiration or sooner termination of the Term of this Lease and
the Premises promptly repaired or restored to its original condition where such
sign has been removed. Tenant shall pay all expenses, and all license and permit
fees relating to the installation and maintenance of authorized signs, and shall
pay all expenses of removal and costs of repairs resulting therefrom.
36. UNAVOIDABLE DELAY. In the event that either party shall be
delayed or hindered in, or prevented from, the performance of any work, service
or other act required under this Lease to be performed by the party and such
delay or hindrance is due to strikes, lockouts, acts of God, governmental
restrictions, enemy act, civil commotion, fire or other casualty, or other
causes of a like nature beyond the control of the party so delayed or hindered,
then performance of such work, service, or other act shall be excused for the
period of such delay and the period for the performance of such work or other
act shall be extended for a period equivalent to the period of such delay. In no
event shall such delay constitute a termination of this Lease. The provisions of
this Section shall not operate to excuse Tenant from the prompt payment of any
Rent or Additional Rent due and owing under this Lease.
37. CORPORATE AUTHORITY. If Tenant is a corporation (or
partnership), each individual executing this Lease on behalf of said corporation
(or partnership) represents and warrants that he is duly authorized to execute
and deliver this lease on behalf of said corporation (or partnership) in
accordance with a duly adopted resolution of the Board of Directors of said
corporation or in accordance with the bylaws of said corporation (or under the
pertinent partnership agreements) and that this Lease is binding upon said
corporation (or partnership) in accordance with its terms.
38. SUCCESSORS. The respective rights and obligations provided in
this Lease shall bind and shall inure to the benefit of the parties hereto,
their legal representatives, heirs, successors and permitted assigns; provided,
however, that no rights shall inure to the benefit of any successor of Tenant
unless Landlord's written consent for the transfer to such successor has first
been obtained to the extent required by this Lease.
39. GOVERNING LAW. This Lease shall be construed, governed and
enforced in accordance with the laws of the Commonwealth of Pennsylvania.
40. SEPARABILITY. If any provision of this Lease shall be held to be
invalid, void or unenforceable, the remaining provisions hereof shall in no way
be affected or impaired and such remaining provisions shall remain in full force
and effect.
41. CAPTIONS. Marginal captions, titles and exhibits to this Lease
are for convenience and reference only and are in no way to be construed as
defining, limiting or modifying the scope or intent of the various provisions of
this Lease.
42. PERSONS; GENDER. As used in this Lease, the word "person" shall
mean and include, where appropriate, an individual, corporation, partnership or
other entity; the plural shall be submitted for the singular, and the singular
for the plural, where appropriate; and words of any gender shall mean to include
any other gender.
43. NOTICES. Any xxxx, statement, notice or communications required
or permitted hereunder shall be deemed sufficiently given if sent by certified
mail, return receipt requested, postage prepaid, or by nationally recognized
overnight delivery service, or by telefacsimile transmission with an original
counterpart to follow by one of the foregoing methods (provided that the failure
to deliver an original counterpart shall not affect the validity or effect of
the communication hereunder) and addressed as follows:
To Landlord: Xxxxxxxx Properties, L.P.
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxxx
With a copy to: Xxxxxxx X. Xxxxxx, Esquire
Xxxxx & Xxxxxxx, P.C.
2900 CNG Tower
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
To Tenant: United Stationers Supply Co.
0000 Xxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: President
With a copy to: 0000 Xxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: General Counsel
and addressed to Tenant and delivered at the Premises after the
Commencement Date of this Lease.
Either party may change its address for purposes of this Section 43 by
written notice so given to the other party. Notice shall be deemed given when
received (by facsimile transmission or otherwise) or when delivered to Tenant at
the Premises.
44. BROKERS. Tenant represents and warrants that in this transaction
it has dealt with no real estate broker other than Xxxxx & Xxxxx and that no one
else has or will represent it in this transaction.
45. LEASE NOT AN OFFER. The submission of this Lease to Tenant
should not be construed as an offer, nor shall Tenant have any rights with
respect thereto unless and until Landlord shall execute this Lease and deliver
the same to Tenant, which rights may be revoked by Landlord at any time prior to
receipt by Tenant of this Lease duly executed by Landlord.
46. TIME OF THE ESSENCE. With respect to all acts of the Tenant
required under or pursuant to this Lease, time is of the essence.
47. LANDLORD'S OBLIGATIONS. Landlord's obligations hereunder shall
be binding upon Landlord only for the period of time that Landlord is the owner
of the Premises; and, upon termination of that ownership, Tenant shall look
solely to Landlord's successor in interest in the Premises for the satisfaction
of each and every obligation of Landlord hereunder.
48. LANDLORD'S EXCULPATORY. Anything contained in this Lease to the
contrary notwithstanding, Tenant agrees that in any judicial proceeding
involving the collection of any judgment (or other judicial process) requiring
the payment of money by Landlord or any partner, officer or employee of
Landlord, Tenant shall look solely to the estate and property of Landlord in the
Premises and to no other property or assets of Landlord, nor to any property of
any partner in Landlord, nor shall any property of either the Landlord (with the
exception of the Premises) or any partner, officer or employee of Landlord
become subject to levy, execution, attachment or other enforcement procedures
for the satisfaction of Tenant's remedies. In addition, Tenant covenants and
agrees that no personal liability or responsibility is assumed by, nor shall at
any time be asserted or enforceable against, any partner, officer, or employee
of Landlord on account of any covenant, undertaking or obligation under or with
respect to this Lease, all such personal liability and responsibility, if any,
being expressly waived and released.
49. COMPLIANCE WITH LAWS. Tenant shall, at its sole cost and
expense, comply and take all action necessary to comply with all laws, orders,
ordinances, regulations and rules all governmental authorities, including the
local Board of Fire Underwriters, having jurisdiction with respect to the
occupancy, use or manner of use of the Premises. Tenant shall give Landlord
prompt notice of any violation or recommendation of change of which it shall
have received notice from any such authority. Tenant shall obtain, if required,
maintain and comply with any and all licenses and permits issued by governmental
authorities, including a Certificate of Occupancy, which are necessary in
connection with or in any way related to the use, or occupancy of the Premises.
Tenant shall not do or permit to be done any act or thing which will invalidate
or be in conflict with any Certificate of Occupancy for the Building. The
foregoing notwithstanding, Landlord shall, if and when required pursuant to a
final, unappealable order of a court or other governmental authority, make all
readily achievable barrier removal or provide readily achievable access
alternatives so required in order for the Building and the Premises to comply
with Title III of the Americans with Disabilities Act ("ADA") except to the
extent that such actions are required as a result of Tenant's use thereof.
Tenant covenants, represents and warrants to Landlord that Tenant shall not use
the Premises as a "place of public accommodation" as defined by the ADA (or the
substantially equivalent term under any similar state statute).
50. WAIVER OF TRIAL BY JURY. It is mutually agreed by and between
Landlord and Tenant that the respective parties hereto shall and hereby do waive
trial by jury (unless such waiver would preclude a right to counterclaim) in any
action or proceeding brought by either of the parties hereto against the other
(except for proceedings involving either personal injury or property damages) on
any matters whatsoever arising out of or in any way connected with this Lease,
the relationship of Landlord and Tenant, Tenant's use or occupancy of said
Premises, and any emergency statutory or any other statutory remedy.
51. MODIFICATIONS. This Lease, including Exhibit A attached hereto,
contains all of the agreements, conditions, understandings, representations and
warranties made between the parties hereto with respect to the subject matter
hereof and may not be modified orally or in any manner other than by an
agreement in writing signed by both parties hereto or their respective
successors in interest.
52. OPTION TO RENEW. Provided that no Event of Default by Tenant
shall be continuing under this Lease, Tenant is hereby granted one (l) option to
renew this Lease on the same terms and conditions (except as hereinafter
provided) as contained in the other provisions of this Lease, such option being
for a term of five (5) years ("option period"), commencing immediately after the
expiration date of this Lease referred to in Section 2 hereof. Tenant may
exercise the foregoing option only by rendering written notice to Landlord no
later than nine full calendar months prior to the expiration date of the
original Term. Provided that no Event of Default shall then exist, the Term of
the Lease shall thereupon be extended for the duration of said option period
upon Landlord's receipt of valid notice from Tenant as described above. The
Base Rent during the option period shall be as follows:
(a) For the period commencing February 1, 2001 through and including
January 31, 2006, the sum derived by multiplying One Million, Six Hundred Sixty-
Two Thousand, Four Hundred Seventy-Six and 00/100 Dollars ($1,662,476) (being
$3.95 per annum per square foot of rentable area in the Building) (the "Base
Rent") by the CPI Adjustment (as defined below) which sum shall be due and
payable in sixty equal monthly installments during the option period; provided,
however, that in no case shall the Base Rent be less than $1,662,476. In
calculating the CPI Adjustment, Landlord may rely on the relevant Consumer Price
Index (defined below) information as reported by the Bureau of National Affairs
("BNA"), Commerce Clearing House ("CCH"), Xxxxxxxx-Xxxx ("P-H") or other
nationally recognized consumer or labor reporting service.
(b) When used in this Lease, the following terms shall have the
following meanings:
(1) "CPI Adjustment" shall mean that fraction of which the
numerator shall be the Consumer Price Index as announced and in effect
for the month of January, 2001, and the denominator of which shall be
the Consumer Price Index (as defined below) for month of January,
1996.
(2) "Consumer Price Index" shall mean the Consumer Price Index,
All Urban Consumers (U.S. City Average; yearly average; 1982-84 = 100)
being publicly announced or reported for the month and year in
question and as compiled by the United States Department of Labor
Bureau of Labor Statistics. If said CPI should in the future be
compiled on a different basis, appropriate adjustments shall be made
for purposes of said computations. If the United States Department of
Labor Bureau of Labor Statistics no longer compiles and publishes the
Consumer Price Index, any comparable index published by any other
branch or department of the federal government, or the statistics
reflecting cost of living changes, as compiled by any institution,
organization or individual, generally recognized as an authority by
financial and insurance institutions, shall be used as a basis for
such adjustments.
53. UNCONDITIONAL OBLIGATION. The obligation of Tenant to pay all
Rent and Additional Rent and other sums as provided hereunder and the obligation
of Tenant to perform Tenant's covenants and duties hereunder, constitute
independent and unconditional obligations to be performed at all times provided
for hereunder. Tenant waives and relinquishes all rights which Tenant might
have to claim any nature of lien against or withhold, or deduct from or offset
against, any rental and other sums provided hereunder to be paid to Landlord by
Tenant.
54. JOINT AND SEVERAL LIABILITY OF TENANTS Intentionally omitted.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the day and date as first above written.
TENANT:
WITNESS: UNITED STATIONERS SUPPLY CO.
_____________________________ By_____________________________
Title:_________________________
LANDLORD:
WITNESS: XXXXXXXX PROPERTIES, L.P., a
Pennsylvania Limited
Partnership
_____________________________ By_____________________________
Title:_________________________
STATE OF ILLINOIS )
) SS:
COUNTY OF XXXX )
On this, the _____ day of January, 1996, before me, the undersigned
officer, personally appeared _______________________, who acknowledged himself
to be the ____________________ of UNITED STATIONERS SUPPLY CO., an Illinois
corporation, and that he as such _________________________, being authorized to
do so, executed the foregoing instrument for the purposes therein contained by
signing the name of the corporation by himself as ________________.
In witness whereof, I hereunto set my hand and official seal.
Sworn to and subscribed to
before me this _____ day
of January, 1996.
______________________________
Notary Public
My Commission Expires:
COMMONWEALTH OF PENNSYLVANIA )
) SS:
COUNTY OF ALLEGHENY )
On this, the _____ day of January, 1996, before me, the undersigned
officer, personally appeared Xxxxxxx X. Xxxxxxxx, who acknowledged himself to be
the Managing General Partner of Xxxxxxxx Properties, L.P., a limited
partnership, and that he as such Managing General Partner, being authorized to
do so, executed the foregoing instrument for the purposes therein contained by
signing the name of the limited partnership by himself as Managing General
Partner.
In witness whereof, I hereunto set my hand and official seal.
Sworn to and subscribed to
before me this _____ day
of January, 1996.
_______________________________
Notary Public
My Commission Expires:
