Exhibit 10.17
Lease Agreement
This Lease dated as of August 1, 1998 by and between The Wentworth Group,
Inc. (Landlord) and CTI Group Holdings, Inc. (Tenant)
WITNESSETH:
ARTICLE I SPECIFICATIONS
Section 1.01 "Lease Premises".
Landlord leases to Tenant and Tenant rents from Landlord the premises
(hereafter called the "Leased Premises") being (a) the interior only of the
space shown highlighted on the plan attached hereto as Exhibit "A" in the
building (the "Building") known as 000 Xxxxxxx Xxxx, Xxxxx Xxxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx, Pennsylvania, stipulated to contain 1,000 rentable
square feet. The Building, the 1.5898 acres of land described on Exhibit "B"
on which the Building is located (the "Land"), and all improvements located
on the Land are hereafter sometimes called the "Project." As an appurtenance
to the Leased Premises, Landlord grants to Tenant the revocable nonexclusive
license to use, in common with others entitled thereto, (as more specifically
provided in Section 3.01) all portions of the Project designated by Landlord
from time to time as Common Facilities.
Section 1.02 "Term"
The term of this Lease shall be two (2) years commencing August 1, 1998,
(the "Commencement Date") and ending at midnight on July 31, 2000. Each period
of one year commencing August 1, 1998 or any anniversary therefore during the
term shall constitute a "Lease Year."
Section 1.03 "Minimum Rent"
(A) The minimum rent ("Minimum Rent") payable under this Lease for each
Lease Year shall be $24,000 Dollars, payable in monthly installments of
$2,000 Dollars as provided in Section 2.01 at the office of Landlord.
Section 1.04 "Additional Rent" - "Costs of Operations"
As additional rent ("Additional Rent") Tenant shall pay to Landlord
Tenant's share of all Costs of Operation of the Project as provided in
Section 2.02. Additional Rent shall be payable on the first day of each month
during the Term of this Lease, regardless of holidays, beginning August 1,
1998.
Section 1.05 "Proportionate Share"
For all purposes of this Lease, Tenant's proportionate share shall be
1,000 square feet divided by 15,000 square feet equaling 6.67%.
Section 1.06 "Security"
Tenant has delivered to Landlord the sum of $2,000 Dollars to be held by
Landlord in accordance with terms of Article XIII.
Section 1.07 Use
The Leased Premises shall be used solely as a computing center and
related uses. The Leased Premises shall not be used for any other purpose.
Section 1.08 Notices
All notices for demand required or permitted to be given or served under
this Lease shall be deemed to have been given or served only if in writing
forwarded by registered or certified mail, postage prepaid, and addressed as
follows:
To Landlord at: 000 Xxxxx Xxxxxxx Xxxx Xxxxxxxxxx,
Xxxxxxxxxxxx 00000
With a copy to: Xxxxx Xxxxxx, Esq.
Wolf, Block, Xxxxxx & Xxxxx-Xxxxx
12th Floor Packard Building
00xx & Xxxxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000-0000
To Tenant at: 0000 Xxxxxxxxxx Xxx
Xxxx "X" Xxxxxxxxxx, XX 00000
Such addresses may be changed by either Party by notice delivered as
above provided to the other Party. If Landlord or any mortgagee shall so
request of Tenant, Tenant shall send such mortgagee a copy of any notice
thereafter sent to Xxxxxxxx. XX 00000.
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ARTICLE II - RENT - COMMENCEMENT OF TERM
Section 2.01 Minimum Rent
The Minimum Rent for each Lease Year of the term of this lease in the
amount set forth in Section 1.03 shall be payable by Tenant as therein set
forth without prior demand and without setoff or deduction, in advance,
without regard to holidays, at the address designated in Section 1.03 or at
such other place as may be designated by Landlord from time to time. If the
term of this Lease shall commence on a day other than the first day of a
month, Tenant shall pay, upon the commencement date, a portion of the Minimum
Rent prorated on a thirty (30) day basis.
Section 2.02 Costs of Operation
Pursuant to Section 1.04 of this Lease, Tenant shall pay to Landlord
Tenant's share of Costs of Operation of the Project. For the purposes of this
Lease, the Costs of Operation of the Project shall include, without
limitation, all expenses, costs and charges incurred in the operation and
maintenance of the Project and all other costs, expenses or charges which
Landlord shall pay or become obligated to pay because of or in connection
with the ownership and operation of Entire premises, including, but not by
way of limitation, the following:
(a) wages and salaries of all employees engaged in operation and
maintenance of the Project including all taxes thereon, insurance
and benefits relating thereto.
(b) all supplies and materials used in the operation and maintenance of
the Project.
(C) all utilities used in the operation of the Project excluding only
utilities separately billed to individual tenants;
(d) the cost of all maintenance and service agreements;
(e) the cost of all insurance applicable to the Project, including
without limitation, all risk coverage, rent insurance, workmen's
compensation, etc. and upon occurrence of damages, deductibles
under such insurance policies;
(f) all taxes, real estate and otherwise, levies, fees, or charges,
general and special, ordinary
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and extraordinary, unforeseen as well as foreseen, of any kind which
are assessed, levied, charged, confirmed or imposed by any public
authority upon the Project or its operation or the rent provided for
in this Lease, excluding however, any taxes on net income; and
(g) cost of repairs replacements and general maintenance and building
services; and
(h) the cost of capital improvements or other modifications to the
Project, amortized over the useful lives of such improvements or
modifications; and
(i) uninsured casualty losses; security; sprinkler services; fire
detection and fire protection; licenses, permits and associates
fees; refuse and garbage processing and removal; rodent and pest
control; snow and ice removal; and all other items of cost and
expense paid or incurred in connection with the maintenance or
operation of the Project and properly chargeable against income
under generally accepted accounting principles.
(j) Gas and electricity.
(k) Management fee (whether payable to Landlord, a party affiliated
with, or related to, Landlord, or a third party manager), not to
exceed 5% of total annual gross rent.
(l) The cost of resealing and restriping the parking lot of the Project.
Operating expenses shall be "net" only and for that purpose shall be
deemed reduced by the amounts of any insurance reimbursements, other
reimbursement, recoupment, payment, fees, discount, credit, reduction,
allowance, or the like received or receivable by Landlord in connection with
such operating expenses. Notwithstanding anything contained in the foregoing
list, the following shall be excluded from Operating expenses:
Utilities
a. Landlord's costs of electricity and other services provided to
tenants for which Landlord is entitled to be reimbursed by tenants (whether
or not actually collected by Landlord) as a separate additional charge or
rental;
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Building Services
b. expenses in connection with services or other benefits of a type
which are not Building standard but which are provided to another tenant or
occupant;
c. costs incurred in installing, operating and maintaining any
recreational facility in the Building, such as an observatory, broadcasting
facility (other than the Building's music system and life support and
security system), luncheon club, athletic or recreational club;
Building Management
d. any compensation paid to clerks, attendants or other persons in
commercial concessions operated by Landlord;
e. costs of Landlord's general corporate overhead and general
administrative expenses, which would not be chargeable to operating expenses
of the Building in accordance with generally accepted accounting principles,
consistently applied;
f. leasing commissions, attorney's fees, auditing fees, costs and
disbursements and other expenses incurred in connection with negotiations or
disputes with tenants, other occupants, or prospective tenants or other
occupants of the Building;
g. auditing fees, other than those in connection with the maintenance
and operation of the Building or in connection with the preparation of
Landlord's statements for operating expenses;
h. wages and costs associated with home office, off-site employees of
Landlord other than professional services provided by such employees which
would otherwise be provided by outside professionals;
i. costs incurred in advertising and promotional activities for the
Building;
Taxes
j. income, excess profits or franchise taxes or other such taxes
imposed on, or measured by, the income of Landlord from the operation of the
Building;
Repairs and Replacements
k. the cost of repairing or restoring any portion of the Building
damaged by a hazard, to the extent such hazard is
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monthly installment of Minimum Rent, Additional Rent, or any other sum
payable by Tenant under or by reason of this Lease;
u. all items and services for which Tenant reimburses Landlord in full
pursuant to other provisions of this Lease.
Tenant's share of the Costs of Operation of the Project shall be paid
in equal monthly installments of 1/12 of the amount reasonably estimated by
Landlord to be due for each year within the term of this Lease, beginning
January 1, 1993. If Landlord reasonably determines that his estimate of Costs
of Operations is inaccurate, Landlord may so notify Tenant, and Tenant shall
thereafter pay the sum stipulated by Landlord. The estimate of such amount
which shall be payable by Tenant is $4.00 per annum, per square foot for the
first Lease Year (excluding electricity and janitorial services) is a
reasonable estimate of such amount. Not later than twenty (20) days prior to
the end of each Lease Year, Landlord shall render a xxxx to Tenant for
Tenant's share of the Costs of Operation of the Project, together with a
statement in reasonable detail of the Costs of Operation of the Project and
(i) Tenant will pay any additional amount shown to be due by said statement
on the first day of each Lease Year, or (ii) Landlord will credit any
overpayment by Tenant against payments thereafter to become due by Tenant on
account of Costs of Operation of the Project or other sums payable by Tenant
under this Lease. Landlord agrees that the annual statements regarding Costs
of Operation shall be certified by an officer of Landlord, and Landlord
further agrees to make available its books and records relating to operating
expenses for Tenant's audit, upon reasonable notice, at Landlord's office. If
such audit discloses any errors, appropriate adjustments shall be made.
Section 2.02A No Janitorial Service.
Tenant acknowledges that Landlord will provide janitorial services to
the Common Facilities, and the cost thereof will be included in Costs of
Operation. Tenant shall provide all janitorial services required for the
Leased Premises at Tenant's sole cost and expense.
Section 2.03 Additional Rent
(a) All sums, other than Minimum Rent, payable under this Lease by
Tenant whether or not specifically so denominated shall be deemed Additional
Rent collectible as such, and payable in the same manner as Minimum Rent.
(b) In accordance with Section 3.04 herein, Tenant shall pay all charges
and assessments for all electric service,
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water, sewer service, telephone service and internal security services
provided to the Leased Premises.
(c)Landlord shall not be liable to Tenant for the failure to provide any
utilities or services either required or permitted to be supplied by Landlord
under the terms of this Lease. However, Landlord agrees in the event of any
suspension or failure of service to proceed with all due diligence to
restore or cause the restoration of such service as soon as is reasonably
practical under the circumstances.
Section 2.04 Interest
Wherever in this Lease there is a provision that Tenant shall be liable
for the payment of any sum to Landlord, together with interest thereon, or
wherever Tenant shall fail to pay any sum when due, such sum shall bear
interest at a rate of twelve percent (12%) per annum.
ARTICLE III - COMMON FACILITIES AND SERVICES
Section 3.01 Common Facilities
The Common Facilities referred to in Section 1.01 of this Lease shall
include all facilities including, without limitation any bathrooms,
landscaped areas, lobbies, courts, elevators, atria, hallways and other
similar facilities in the Project designated by Landlord for common or joint
use of the occupants thereof, their employees, agents, tenants, customers and
other invitees. The Common Facilities shall at all times be subject to the
exclusive control and management of Landlord. Landlord may from time to time
promulgate and enforce reasonable rules and regulations, uniformly applied,
for the use of the Common Facilities, and build or place landscaping and
other improvements thereon. Landlord may at any time and from time to time
close all or any portion of such Common Facilities to such extent as may be
necessary in its opinion to prevent or avoid the possibility of a dedication
thereof to the public. Landlord, however, will not deprive Tenant of
reasonable access to the Leased Premises.
Section 3.02 License
The right of Tenant to use any of the Common Facilities is a revocable
license. Landlord makes no representation as to the identity, type, size or
number of other tenants.
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Section 3.03 Landlord's Services
Provided that Tenant is not in default under any of the provisions of
this Lease, beyond the expiration of any applicable grace period following
notice of default, Landlord shall:
(a) Furnish heat and air conditioning to the Common Facilities and the
Leased Premises from 8:00 a.m. during the normal heating season when required
for comfortable use and occupation on business days from Monday to Friday
inclusive until 6:00 p.m.
Section 3.04 Utilities
(a) Electric Charges. Tenant shall pay his proportionate share of all
electric charges, unless electric service to the Leased Premises is
separately metered, in which case Tenant shall pay all electric charges
associated with the Leased Premises.
(b) Gas Charges. Tenant shall pay his proportionate share of all gas
charges.
(c) Submetering of Landlord's Space. If Landlord separately meters the
electric usage for the electrical service to the Landlord's Space (defined in
Section 17.01 hereof), including the electricity used to operate the HVAC
system serving Landlord's Space, Landlord shall give Tenant a $50 per month
credit against Tenant's Minimum Rent, as Landlord's sole contribution to
charges for electrical service to the Building.
ARTICLE IV - SIGNS, FIXTURES AND ALTERATIONS
Section 4.01 Signs
Tenant shall not place or erect any signs, decorative devices, awnings,
canopies or other advertising matter visible from the exterior of the Leased
Premises and shall remove the existing sign face plate.
Section 4.02 Trade Fixtures
All trade fixtures installed by Tenant in the Leased Premises shall be
the property of Tenant and shall be removed at the expiration or sooner
termination of the term of this Lease or any renewal or extension thereof,
provided Tenant shall not at such time be in default under any covenant or
agreement contained in this Lease and - that Tenant shall promptly repair any
damage
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to the Leased Premises caused by such removals. If Tenant fails to remove
any such trade fixtures upon expiration or sooner termination of the term of
this Lease, such trade fixtures shall be deemed abandoned and shall become
the property of Landlord or, at the option of Landlord may be removed from
the Leased Premises and stored for the account of Tenant, at the cost and
expense of Tenant, which cost and expense shall constitute Additional Rent.
Any lighting fixtures, heating and air conditioning equipment, plumbing and
electrical systems and fixtures and floor covering shall not be deemed to be
trade fixtures whether installed by Tenant or by any other party and shall not
be removed from the Leased Premises but shall upon installation become the
property of Landlord without any compensation to Tenant.
Section 4.03 Alterations
Tenant shall not make any changes, alterations or improvement to the
Leased Premises or any part thereof without first obtaining the written consent
of Landlord which will not be unreasonably withheld or delayed. In applying
for such consent, Tenant shall submit to landlord reasonable plans and
specifications for the proposed work and an estimate of the anticipated cost
thereof. If Landlord determines it advisable to grant such consent, Landlord
may also impose such conditions as to permits, insurance, bonds and waivers
and releases of mechanic's liens as Landlord in its sole discretion deems
advisable or necessary. Any alterations, additions or improvements made by
Tenant with the consent of Landlord shall become the property of Landlord and
shall remain upon the Leased Premises at the expiration or sooner termination
of this Lease unless Landlord shall as a condition to the approval of same
require that it have the option at the termination of this Lease to cause
Tenant to restore the Leased Premises to its condition prior to the making of
such alterations and improvements.
Section 4.04 Mechanics' Liens
Before performing or permitting the performance of any work within the
Leased Premises as permitted under any provision of this Lease or otherwise
by Landlord, Tenant shall, at its own cost and expense, take such steps as
Landlord might reasonably require in order that no lien for labor or
materials will attach to the Leased Premises or the Project as a result of
such work. Tenant shall not permit any mechanics' or other lien or claim for
lien or notice in respect thereto to be filed against the Leased Premises or
any fixtures, equipment or furnishings contained therein. If any such lien,
notice or claim, be made or filed, Tenant shall within ten (10) days after
notice of the filing thereof cause said lien, notice or claim for lien to be
effectively removed or discharged of record; provided, however,
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that Tenant shall have the right to contest the amount or validity, in whole
or in part, of any such lieu, notice or claim by appropriate proceedings but
in such event Tenant shall promptly bond such lien, notice or claims with a
surety company satisfactory to Landlord and shall prosecute such proceedings
with all due diligence and dispatch. If Tenant fails so to discharge or bond
such lien, Landlord may at its election remove or discharge such lien, notice
or claim by paying the full amount thereof, or otherwise, and without any
investigation or contest of the validity thereof, and Tenant shall pay to
Landlord upon demand, as Additional Rent, the amount paid by the Landlord
including Landlord's costs, expenses, interest and reasonable counsel fees.
Prior to the commencement of any work on the Leased Premises, Tenant shall
cause lien waivers executed by all contractors performing work to be (i)
delivered to Landlord, and (ii) filed with the Prothonotary of Xxxxxxxxxx
County, Pennsylvania.
ARTICLE V
OCCUPANCY, MAINTENANCE, REPAIR AND SURRENDER OF THE LEASED PREMISES
Section 5.01 Occupancy Agreements
Tenant covenants that Tenant:
(a) will not use the plumbing facilities for any other purposes than
that for which they are constructed and will not permit any foreign substance
of any kind to be thrown therein. The expense of repairing any breakage,
stoppage, seepage or damage whether occurring on or off the Leased Premises,
resulting from a violation of this provision by Tenant or Tenant's employees,
agents or invitees shall be borne by Tenant.
(b) will comply with all laws and ordinances and all rules and
regulations of governmental authorities and all recommendations of the
Association of Fire Underwriters with respect to the use or occupancy of the
Leased Premises by Tenant (the foregoing shall not require Tenant to install a
fire sprinkler or fire detection system in the Lease Premises);
(c) agrees that Landlord may amend, modify, delete or add new and
additional reasonable rules and regulations of uniform application for the
use and care of the Leased Premises, the Project and the Common Facilities
are defined in this Lease;
(d) will comply with all such further rules and regulations upon notice
to Tenant from Landlord.
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(e) if Tenant shall use or require additional electrical service in
addition to that provided at the commencement of the terms of this Lease,
Tenant shall provide the same at its own cost and expense, but only in
accordance with specifications approved by Landlord in writing.
(f) will not use or operate any machinery, that, in Landlord's opinion,
is harmful to the Leased Premises or the Project or disturbing to lessees
occupying other parts of the Project;
(g) will not place any weights in any portion of the Project beyond the
safe carrying capacity of the structure;
(h) will not manufacture any commodity or prepare or dispense any food
or beverages in the Leased Premises, except for Tenant's own use;
(i) will not permit any odor, noise, sound, or vibration which may, in
Landlord's reasonable judgment, in any way tend to impair the use of any part
of the Project or interfere with the business or occupancy of any other
lessee, or make or permit any disturbance of any kind in the Project; or
interfere in any way with any other lessees or those having business in the
Project;
(j) will not obstruct any sidewalks, halls, passageways, elevators or
stairways in the Project or any part thereof, or use the same for any purpose
other than ingress and egress to and from the Leased Premises;
(k) will not bring in to or remove from the Project any heavy or bulky
object except with the aid of experienced movers or riggers approved in
writing by Landlord and in accordance with the rules and regulations set
forth by Landlord;
(l) will not keep any animal in or about the Leased Premises;
(m) will not use any part of the Leased Premises as sleeping rooms or
apartments; and
(n) will give Landlord prompt written notice of any accident, fire or
damage occurring in or to the Leased Premises;
(0) will use reasonable efforts to inform its employees or invitees to
park their cars only in the parking spaces reasonably and nondiscriminatorily
designated by Landlord, and will use reasonable efforts to prohibit its
employees and invitees from (i) parking any vehicle overnight (except in
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connection with work), and (ii) parking recreational vehicles, trucks (except
for pick-up trucks), boats, and trailers at any time;
(p) to keep the Leased Premises clean and orderly;
(q) will insure Tenant's personal property located in the Leased
Premises; and
(r) will not (i) vacate the Leased Premises, or (ii) remove so much of
Tenant's personalty such that the remaining personalty does not give Landlord
reasonable assurance that Tenant will continue to occupy a material part of
the Leased Premises throughout the balance of the Term of this Lease, unless
Tenant has first provided to Landlord security reasonably satisfactory to
Landlord, to assure Landlord that Tenant will perform Tenant's obligations
under this Lease. Landlord agrees that cash, cash equivalants, marketable
securities or a letter of credit equal to nine (9) months Minimum Rent shall
be deemed to be satisfactory security for Tenant's performance of the terms of
this Lease.
Section 5.02 REPAIRS; MAINTENANCE
(a) Tenant agrees to accept the Leased Premises in the physical order
and condition existing on the Commencement Date. Tenant shall, throughout the
Term, and any renewal thereof, at Tenant's sole expense, make all repairs,
replacements, renewals and additions as may be required to keep and maintain
the interior of the Leased Premises and all improvements therein in good
order and condition. Tenant shall return the Leased Premises to Landlord in
such good order and condition at the expiration or termination of the Term,
or any renewal thereof, ordinary wear and tear and damage from casualties and
acts and omissions of Landlord excepted. Any repairs and replacements, and any
labor performed or materials furnished in, on or about the Leased Premises,
shall be performed and furnished in strict compliance with all applicable laws,
regulations, ordinances and requirements of all governmental bodies having
jurisdiction over the Leased Premises.
(b) Landlord agrees to repair, replace or otherwise maintain in good
order and condition the roof and structural portions of the Project as well as
the parking areas and heating and air conditioning systems.
Section 5.03 Surrender of the Leased Premises
At the expiration of or sooner termination of the tenancy hereby
created, Tenant shall peaceably surrender the
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Leased Premises in the same condition of cleanliness, repair and sightliness
as the Leased Premises were in on the Commencement Date, reasonable wear and
tear and damage by unavoidable casualty excepted to the extent that the same
is covered by Landlord's property loss or damage insurance policy. At such
time, Tenant shall surrender all keys for the Leased Premises to Landlord at
the place then fixed for the payment of rent and shall inform Landlord of all
combinations or locks, safes and vaults, if any, in the Leased Premises.
Tenant shall in accordance with Section 4.02 remove all its trade fixtures
before surrendering the Leased Premises and shall repair any damage to the
Leased Premises caused thereby. Tenant's obligations to observe or perform
this covenant shall survive the expiration or other termination of the term
of this Lease.
Section 5.04 Waste of Nuisance
Tenant shall not commit or suffer to be committed any waste upon the
Leased Premises. Tenant shall not commit or suffer to be committed any
nuisance or other act which may disturb the quiet enjoyment of any other
tenant or occupant of the Project.
Section 5.05 Environmental Matters
(a) The term "Environmental Law" shall mean any federal, state or local,
statute, act, law, ordinance, rule, regulation or order pertaining to the
environment whether now or hereafter enacted and whether or not listed in
this definition such as but not limited to the following:
(i) The comprehensive Environmental Response Compensation and
Liability Act ("CERCLA"), 42 U.S.C. Section 9601 as amended by the Superfund
Amendments and Reauthorization Act of 1986 (Pub. L. 98-489, 100 State 1613,
1986) ("XXXX").
(ii) The Resource conservation and Recovery Act, 42 U.S.C. Section
6801 et. seq. ("RCRA");
(iii) Toxic Substances Control Act, 15 U.S.C. Section 2601 ("TSCA");
(iv) The Clean Water Act, 33 U.S.C. Section 407 et. seq.; ("CWA");
(v) The Clean Air Act, 42 U.S.C. Section 7901 et. sea.;
(vi) The Pennsylvania Solid Waste Management Act 35 P.S. Section
6018.103;
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(vii) The Pennsylvania Hazardous Sites Clean Up Act (Act 108 of
1988)
(viii) Any similar statute, law, ordinance, rule, regulation or
order adopted in the jurisdiction in which the Premises is located at any
time whether before or after the execution of this Lease.
(b) "Hazardous Substance" shall mean any hazardous or toxic substance as
defined in any Environmental Law or in any rule, regulation or order issued
pursuant to any Environmental Law.
(c) "Enforcement Agency" shall mean the Environmental Protection Agency
("EPA") and any state, county, municipal or other agency having authority to
enforce any Environmental Law.
(d) "Landlord certifies to Tenant that at the date of execution of this
lease the Leased Premises does not contain asbestos or any Hazardous
Substance (as currently defined in any Environmental Law in effect on the
date of this Lease).
(e) Landlord shall be responsible for all costs, expenses, damages and
penalties resulting from the existence of any Hazardous Substance (as
currently defined in any Environmental Law in effect on the date of this
Lease) in the Leased Premises at the date of the execution of this Lease and
Landlord shall indemnify Tenant and hold it harmless from any claims arising
from the existence, removal, containment or abatement of any such Hazardous
Substance from the Leased Premises.
(f) All alterations made in the Leased Premises by Landlord, Tenant or
any other tenant of the Leased premises shall be in accordance with and shall
comply with all Environmental Laws and the requirements of any Enforcement
Agencies.
(g) If any statutes, laws, ordinances, rules or regulations are
promulgated at any time after the date of execution of this Lease for the
removal, abatement or containment of a Hazardous Substance in the Leased
premises or any portion of the Leased Premises and, in the reasonable
judgment of Landlord, it is hazardous for the Tenant to remain in the Leased
Premises during such removal, abatement or containment of the Hazardous
Substance, Tenant shall vacate the Leased Premises or that portion of the
Leased Premises that is hazardous and, provided that such condition did not
result from Tenant's acts, omissions, or operations, Tenant's rent shall be
abated proportionately for the period of time in which Tenant's use of such
portion of the Leased Premises has been interrupted.
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(h) Tenant shall not intentionally or unintentionally
use, store, handle, spill or discharge any Hazardous Substance at
or in the vicinity of the Leased Premises. Tenant shall not use
the Leased Premises in any manner which will cause the Leased Premises
to have a standard industrial classification ("SIC") which is covered
by any Environmental Law or which will cause the premises to be deemed
an "Industrial Establishment" as defined under any Environmental Law.
Tenant's failure to abide by the terms of this paragraph (h) shall be
restrainable by injunction.
(i) At anytime during the term of this Lease, Tenant shall supply
to Landlord affidavits of an officer of Tenant setting forth Tenant's SIC
number and describing in detail the operations and processes undertaken by
Tenant at the Leased Premises. Such affidavits shall include a certification
that no Hazardous Substance is generated, used, stored, handled or disposed
of at the Leased Premises or shall state the nature of any such substance and
the methods used in handling the same in reasonable detail. Such affidavits
shall be delivered to Landlord within ten (10) days after request therefor.
(j) Within ten (10) days after request therefor, Tenant shall provide
all information requested from time to time by Landlord, or by any
Enforcement Agency for the preparation of notices submissions or affidavits
(including, without limitation, Non-applicability Affidavit, de Minimis
Quantity Exemption Application, Limited Conveyance Application or
Administrative Consent Order). Within ten (10) days after request therefor,
Tenant shall execute and deliver any document reasonably required in order to
comply with any Environmental Law.
(k) Tenant shall promptly deliver to Landlord copies of all notices made
by Tenant to, or received by Tenant from, any Enforcement Agency or from the
United States Occupational Safety and Health Administration concerning
environmental matters or Hazardous Substances at the Leased Premises.
(l) At any time throughout the term of this Lease and any extension
thereof, Landlord may cause an inspection to be made of the Leased Premises
and its surrounding area for the purpose of determining whether any Hazardous
Substance is present thereon.
(m) Tenant shall indemnify, defend and hold Landlord harmless of and
from any and all claims arising by reason of any violation by Tenant of the
provisions of this Section 5.05 and this indemnity shall survive expiration
or other termination of this Lease.
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Section 5.06 Americans with Disabilities Act
Tenant is responsible for any improvements, capital or otherwise, which
might be required for Tenant to comply with the Americans With Disabilities
Act. Tenant agrees to hold Landlord harmless from any liability which might
arise from Tenant's noncompliance with the Americans with Disabilities Act.
ARTICLE VI - INDEMNITY, INSURANCE AND WAIVER OF CLAIMS
Tenant shall indemnify and defend Landlord and save it harmless from and
against all claims, suits, actions, damages, judgments, liabilities, fines,
penalties and expense for loss of life, personal injury or damage to property
(a) arising from or out of any occurrences within the Leased Premises
(without regard to the cause or claimed cause thereof unless such loss of
life, personal injury or damage to property be due or claimed to be due to
the negligence of Landlord, or its officers, agents or employees occurring
prior to or following the execution of this Lease) or (b) by reason of the
occupancy or use of the Leased Premises or any part of the Project by Tenant
or (c) occasioned wholly or in part by any act or omission of Tenant or
breach of this Lease by Tenant or by its agents, contractors, customers,
employees, servants, lessees or concessionaires. If Landlord shall be made a
party to any litigation commenced by or against Tenant or by any third party
and connected in any way with this Lease or Tenant's use or occupancy of the
Leased Premises, Tenant shall indemnify and hold Landlord harmless and shall
pay all costs, expenses and reasonable attorneys fees incurred or paid by
Landlord in connection with such litigation.
Section 6.02 Insurance
Throughout the term of this Lease and any extensions thereof, and so long
as Tenant or any party claiming under Tenant remains in possession of the
Leased Premises Tenant shall obtain, maintain and pay for comprehensive
general liability (including products liability) insurance covering the
Leased Premises, the business operated by Tenant in the Leased Premises and the
contractual liability of Tenant under this Lease in form and with insurers
and in amounts reasonably satisfactory to Landlord, and with a minimum limit
of One Million Dollars ($1,000,000) for injury or death and One Hundred
Thousand Dollars ($100,000) for property damage, and for such other coverages
as might be required by Landlord. Landlord agrees that the limits of
liability insurance required of Tenant under this Lease shall not exceed the
limits required by comparable landlords of comparable tenants in the Valley
Forge area.
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All insurance policies required to be maintained by Tenant under this
Lease shall be in insurance companies licensed to do business in the
Commonwealth of Pennsylvania, satisfactory to Landlord, and shall name
Landlord and its managing agents as additional parties insured. Certificates
of such insurance (showing payment of current premiums thereon) shall be
delivered to Landlord a minimum of ten (10) days prior to the commencement of
the term of this Lease with renewals thereof delivered to Landlord a minimum
of ten (10) days prior to the expiration of any of such policies. If
requested to do so Tenant shall also provide Landlord with copies of the
pertinent portions of all such policies and also permit Landlord to examine
the original policies. Each policy shall contain an agreement by the insurer
that such policy shall not be canceled or materially modified without ten
(10) days prior notice to Landlord by certified mail. If Tenant fails to
deliver any of the certificates as required in this Lease Landlord may
either, terminate this Lease or procure such insurance at the cost of Tenant
and pay the premiums thereon. Such premiums shall be deemed Additional Rent
and shall be payable by Tenant to Landlord together with interest
immediately upon demand.
Section 6.03 Landlord's Insurance
Landlord will carry such all risk insurance covering the Leased Premises
as Landlord deems necessary or as may be required by any mortgagee of the
Project. If there shall be any increase in premiums that may be charged
during the term of this Lease on any insurance carried by Landlord on the
Project caused by Tenant or from any act or omission of Tenant, Tenant shall
pay as Additional Rent hereunder the amount of such increased premiums. A
schedule issued by the organization establishing the insurance rate on the
Project, showing the components of such rate, shall be conclusive evidence of
the amount of such premiums.
Section 6.04 Waiver of Claim
Tenant waives all claims against Landlord, its agents and servants and
agrees to indemnify and hold it and them harmless for loss of life, damage to
person or property sustained by Tenant or any other occupant of the Leased
Premises or of any other part of the Project or by its or their agents
servants and employees resulting directly or indirectly out of the condition
of the Leased Premises or the Project or resulting from any accident or
occurrence in or about the Leased Premises or the Project (without regard to
the cause or claimed cause thereof unless such loss of life, damage to person
or property be due to the negligence including gross negligence of Landlord,
or its officers, agents or employees occurring prior to or following the
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execution of this Lease) or resulting directly or indirectly from any act or
neglect of any tenant or occupant of the Project or of any other person. All
property belonging to Tenant or any occupant of the Leased Premises or the
Project shall be thereon at the risk of Tenant or such other person only and
Landlord shall not be liable for damage thereto or loss, theft or
misappropriation thereof unless due to the negligence of Landlord, or its
officers, agents or employees occurring prior to or following the execution
of this Lease. Tenant shall be responsible for all goods or property of any
third party left upon the Leased Premises.
Section 6.05 Waiver of Subrogation
All insurance policies carried by either Landlord or Tenant covering the
Leased premises, including but not limited to contents, fire, liability and
casualty insurance, shall expressly waive any right on the part of the
insurer against the other party. The parties hereto agree that their policies
will include such waiver clause or endorsement so long as the same shall be
obtainable without extra cost, or, if extra cost shall be charged therefor,
so long as the other party pays such extra cost. If extra cost shall be
chargeable therefor, each party shall advise the other of the amount of the
extra cost, and the other party, at its election, may pay the same, but shall
not be obligated to do so.
Each of the parties hereto hereby releases the other, from any an all
liability for any loss or damage which may be inflicted upon the property of
such party, even if such loss or damage shall be brought about by the fault
or negligence (including gross negligence) of the other party or their
respective agents or employees. The foregoing release shall be effective (i)
only with respect to loss or damage occurring during such time as the
appropriate policy of insurance shall contain the waiver hereinabove
described, and (ii) only to the extent that the releasing party recovers (or
should have recovered) for such loss pursuant to insurance policies it is
required to carry pursuant to the terms of this Lease. Notwithstanding the
foregoing sentence, the release set forth in the first sentence of this
paragraph shall be enforceable against any party which fails to carry the
insurance required by this Lease.
ARTICLE VII - DAMAGE OR DESTRUCTION
If any part of the Leased Premises or of the Project shall be damaged or
destroyed by fire or other casualty, Tenant shall give prompt notice thereof
to Landlord.
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If more than thirty percent (30%) of the area of the Leased Premises
shall be rendered untenantable by such fire or other casualty then:
(a) If Landlord does not commence to repair the Leased Premises within
sixty (60) days after the occurrence of such fire or other casualty, Tenant,
at its option, as its sole remedy may terminate this Lease by notice to
Landlord not later than one hundred twenty (120) days after such occurrence,
and;
(b) Landlord may terminate this Lease by notice to Tenant.
Landlord may also terminate this Lease if a substantial part of the
Project shall be damaged or destroyed by fire or other casualty. Upon any
termination as herein permitted, this Lease shall expire as of the date of
such fire or other casualty. If this Lease is not terminated after any fire
or other casualty the Minimum Rent payable under Section 2.01 shall xxxxx in
the proportion that the damaged area of the Leased Premises bears to the
total rentable area thereof until such time as Landlord shall substantially
complete repairs thereto. In the event of any such damage Landlord may enter
upon the Leased Premises and make repairs in accordance with the terms of
this Lease.
Tenant may terminate this Lease if repairs cannot be completed within
180 days after occurrence of the casualty, or if Landlord fails to use
diligent efforts to complete such repairs within 180 days after occurrence of
the casualty.
ARTICLE VIII - EMINENT DOMAIN
Section 8.01 Total Condemnation
If the whole of the Leased Premises shall be condemned by eminent domain
or shall be conveyed by Landlord in lieu of any such condemnation for any
public or quasi-public use or purpose, the term of this Lease shall expire as
of the date on which possession of the Leased Premises is required to be
surrendered to the condemning authority, and all rent shall be paid up to
such date.
Section 8.02 Partial Condemnation
If more than five percent (5%) of the floor area of the Leased Premises
shall be condemned by eminent domain or shall be conveyed by Landlord in lieu
of any such condemnation for any public or quasi-public use or purpose and
the remainder of the Leased Premises shall thereafter be unsuitable for the
business
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of Tenant, the term of this Lease shall cease and terminate as of the date on
which possession of the Leased Premises is required to be surrendered to the
condemning authority as though such condemnation or conveyance were a total
condemnation under Section 8.01. If the remainder of the Leased Premises
after such condemnation or conveyance is suitable for the business of Tenant,
Landlord shall promptly restore the Leased Premises to the extent of net
condemnation proceeds available for such purpose after payment of all costs
and payment of any amounts that may be due to any first mortgagee for the
value of the diminished fee, to a condition as nearly comparable as possible
to its condition immediately preceding such condemnation or conveyance, and
rent shall xxxxx in the ratio that the area of the Leased Premises condemned
or conveyed bears to the total area of the Leased Premises before such
condemnation or conveyance.
Section 8.03 Condemnation of the Project
If any part of the Project shall be condemned by eminent domain or shall
be conveyed by Landlord in lieu of such condemnation for any public or
quasi-public use or purpose and the remainder of the Project after such
conveyance or condemnation shall be unsuitable, in the opinion of Landlord,
for continued operation as an integral unit, Landlord may elect to treat
such condemnation or conveyance as a condemnation or conveyance of the whole
of the Leased Premises under the terms of Section 8.01. If Landlord does not
elect the foregoing option, this Lease shall continue without any right on
the part of Tenant to claim any reduction in rent or other payments due
hereunder by reason of the reduction in size of the Project.
Section 8.04 Awards
If the Leased Premises or the rights of Tenant under this Lease shall be
affected in any way by any condemnation or conveyance in lieu thereof, Tenant
waives all claims of any nature whatsoever against Landlord and assigns to
Landlord all claims of any nature against the condemning authority arising by
reason of such condemnation or conveyance in lieu thereof, including without
limitation all claims for loss of Tenant's leasehold estate. Notwithstanding
the foregoing, Tenant may file such claims with the condemning authority as may
be permitted by applicable law for removal expenses, business dislocation
damages, and moving expenses but only so long as such claims do not reduce
any award otherwise payable to Landlord.
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ARTICLE IX - ASSIGNMENT AND SUBLETTING
Section 9.01 Assignment and Subletting
(a) Tenant shall not assign this Lease nor sublet all or any part of the
Leased Premises without the prior written consent of Landlord, which consent
shall not be unreasonably withheld or delayed. For the purposes of this
section, any mortgage, conveyance, transfer or encumbrance of this Lease and
any transfer by operation of law, and any transfer of any right to possession
or use of the Leased Premises shall be deemed an assignment or subletting.
Landlord's consent to an assignment of this Lease or a subletting of the
Leased Premises or any part thereof shall be deemed to be unreasonably
withheld if the proposed assignee or subtenant is of such financial standing
and responsibility at the time of such assignment or subletting as to give
reasonable assurance of the payment of all Minimum Rent, Additional Rent and
other amounts reserved in this Lease and compliance with all the terms,
covenants, provisions and conditions of this Lease. Notwithstanding the
foregoing, so long as Landlord or any entity affiliated with, or related to,
Landlord, occupies the Landlord's Space (as defined in Section 17.01 hereof),
Landlord may withhold its consent to an assignment or subletting if the use
or identity of the proposed assignee or subtenant is unsatisfactory to
Landlord in Landlord's sole discretion. Tenant shall pay to Landlord sixty
percent (60%) of any profit realized by Tenant from an assignment or
subletting.
(b) Consent by Landlord to any assignment or subletting shall not
constitute a waiver of the necessity for such consent to any subsequent
assignment or subletting.
(c) If the Leased Premises be occupied by anyone other than Tenant,
whether as assignee, subtenant, concessionaire or otherwise, Landlord may
collect rent from such occupant, and apply the net amount collected to the
rent reserved under this Lease and acceptance of such rent shall not be
deemed a consent to any such occupancy or any such other party.
(d) An attempted assignment without the consent of Landlord may, at the
option of the Landlord, be treated as an offer to terminate this Lease.
(e) Any consent by Landlord to any assignment of this Lease may be
conditioned upon the assignee assuming the full and faithful performance of
all the terms and conditions of this Lease and upon the continued liability
of Tenant under all the terms hereof. Any consent by Landlord to any
subletting shall be conditioned upon the express agreement by the subtenant
to be
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bound by the terms, covenants and conditions and restriction of this Lease
applicable to Tenant.
(f) This Lease shall be deemed to be assigned if Tenant merges with any
other entity. Landlord shall not unreasonably withhold its consent to such an
assignment if the entity which results from the merger will be of such
financial standing and responsibility as to give reasonable assurance of the
payment of all Minimum Rent, Additional Rent and other amounts reserved in
this Lease and compliance with all the terms, covenants, provisions and
conditions of this Lease. Landlord shall be deemed to be unreasonable in
withholding consent if the book value, excluding good will, of the resulting
entity exceeds the book value, excluding good will, of the Tenant before the
merger. This Lease shall be deemed to be assigned if Tenant liquidates or
dissolves. This Lease shall not be deemed to be assigned if the control of
Tenant changes.
(g) Tenant may assign this Lease to any affiliate or subsidiary entity
of Communications Group, Inc. without Landlord's consent upon satisfaction of
the following conditions: (a) no event of default shall have occurred and be
continuing under this Lease; and (b) such assignment shall include the entire
Premises. The terms "affiliate" and "subsidiary entity" as used in this
Section shall refer only to entities wholly owned or controlled by
Communications Group, Inc. Tenant shall not be relieved or discharged from
its obligations and liabilities under this Lease as the result of an
assignment pursuant to this paragraph.
Section 9.02 "Landlord"
The word "Landlord" when used in this Lease shall mean the owner from
time to time of the Lessor's interest in this Lease. If the interest or
estate of Landlord in the Leased Premises shall terminate by operation of law
or by a sale of the premises or by execution or foreclosure sale or for any
other reason, or if any third party becomes entitled to collect and receive
rent under this Lease, Landlord shall be released and relieved from all
liability thereafter under this Lease. Landlord's liability under this Lease
shall be limited to the Landlord's interest in the Project without direct or
personal liability on the part of any partners, joint venturers or others.
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ARTICLE X - SUBORDINATION AND QUIET ENJOYMENT
Section 10.01 Subordination
This Lease and all of the terms, covenants and conditions hereof is and
shall be subject and subordinate to any mortgage or mortgages or prior leases
affecting the Leased Premises or the Project or any part of either of them.
However, if any mortgagee or prior lessor so requests, Tenant shall execute,
acknowledge and deliver an agreement in form satisfactory to such mortgagee
or prior lessor subordinating such mortgage to this Lease, or agreeing to
attorn to such mortgagee or prior lessor, or both.
Section 10.02. Offset Statement
Within ten (10) days after request by Landlord or upon any sale,
assignment or mortgage of the Leased Premises, Tenant shall execute and
deliver to Landlord or to any proposed mortgagee or purchaser a certificate
in recordable form stating (if such be the case) that this Lease is in full
force and that there are no defenses or offsets thereto, or stating those
claimed by Tenant.
Section 10.03 Quiet Enjoyment
Subject to the express provisions of this Article and upon payment of
the rents and performance of all the other covenants, terms and conditions of
this Lease, Tenant shall peaceably and quietly hold and enjoy the Leased
Premises for the term herein specified, without hindrance by Landlord or
anyone claiming by or through Landlord, subject nevertheless to the terms and
conditions hereof.
Section 10.04 Estoppel Certificate
Tenant and Landlord shall, at any time and from time to time upon not
less than ten (10) days' prior request by the other party, execute,
acknowledge and deliver to Landlord or Tenant, as the case may be, a
statement in writing certifying that (i) this Lease is unmodified and in full
force and effect (or if there have been modifications, that the same is in
full force and effect as modified and stating the modifications) and, if so,
the dates to which the rent and any other charges have been paid in advance,
and (ii) that no default hereunder on the part of Landlord or Tenant, as the
case may be, exists (except that if any such default does exist, the
certifying party shall specify such default), it being intended that any such
statement delivered pursuant to this Section may be relied upon by any person
for whom such statement may reasonably be requested
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including, but not limited to, any prospective purchaser or mortgagee of the
Project.
Section 10.05 Non-Disturbance
If Landlord desires to refinance the Project, Landlord shall use
commercially reasonable efforts to procure from Landlord's lender a
nondisturbance agreement which provides in substance, that:
a. Tenant shall not be joined as a party defendant (i) in any action or
proceeding which may be instituted or taken by the lessor of such superior
lease for the purpose of terminating such superior lease by reasons of any
default thereunder, or (ii) in any foreclosure action or proceeding which may
be instituted or taken by the holder of such superior mortgage;
b. Tenant shall not be evicted from the Premises, nor shall any of
Tenant's rights under the Lease be affected in any way, by reason of any
default under such superior lease or such superior mortgage; and
c. Tenant's leasehold estate under the Lease shall not be terminated or
disturbed, by reason of any default under such superior lease or such
superior mortgage.
d. Landlord agrees to use commercially reasonable efforts to procure and
deliver to Tenant, with reasonable promptness after the date of the Lease,
written agreements of the holders of the all mortgages encumbering the
Building, containing nondisturbance provisions substantially similar to (a)
through (c) of this section.
ARTICLE XI - RIGHTS OF LANDLORD
Section 11.01 Right of Entry
Landlord or Landlord's agents or such persons as Landlord may authorize
may enter the Leased Premises at all reasonable times, after reasonable
notice, for purposes of examination, exposition to Landlord's existing lender
and to prospective purchasers, lenders or tenants of the Leased Premises or
the Project, and making of repairs, alterations, improvements and additions
to the Leased Premises or the Project all as Landlord may deem necessary or
desirable. Landlord may take into the Leased Premises all material that may be
required to make such repairs, alterations, improvements or additions. No
such entry upon the Leased Premises shall be deemed an eviction of Tenant in
whole or in part and the rent reserved in this Lease
26
shall not xxxxx in whole or in part while any such repairs, alterations,
improvements or additions are being made by Landlord. Landlord shall not be
liable to Tenant for any damage, decrease or loss of business occurring
either during or after the making of any such repairs, alterations,
improvements or additions. If Tenant or a designee of Tenant shall not be
present to open and permit entry into the Lease Premises at any time when
such entry shall be necessary or permissible, Landlord or its agents may
enter the Leased Premises by a master key or may forcibly enter thereon,
without rendering Landlord or such agent liable therefor and without
affecting the obligations and covenants of Tenant. The reservation of rights
in this Section shall not be construed as imposing upon Landlord any
obligation, responsibility or liability whatsoever for the care, maintenance
or repair of the Project or of the Leased Premises except as specifically
provided in this Lease.
Section 11.02 Utilities and Conduits
Landlord may from time to time place conduits or other facilities for
utilities servicing other portions of the Project over, across or through
such portions of the Leased Premises not unreasonably interfering with the
appearance thereof or conduct of business therein by Tenant, as Landlord
deems necessary or advisable.
ARTICLE XII - DEFAULT AND REMEDIES
Section 12.01 Events of Default
The following shall be considered "Events of Default:"
(a) The failure of Tenant to pay, within five (5) days of the date when
due, any installment of rent or Additional Rent or any other sum payable by
Tenant under this Lease.
(b) The failure to perform, violation or breach by Tenant of any of the
material terms, covenants or conditions of this Lease, which failure,
violation or breach shall continue unremedied by Tenant for a period of
thirty (30) days after written notice thereof shall have been given to Tenant
by Landlord, or for such additional period as may be necessary to remedy such
failure, violation or breach with due diligence.
(c) The insolvency of Tenant as evidenced by an assignment by Tenant for
the benefit of creditors, a petition in bankruptcy or for reorganization or
an arrangement under any bankruptcy or insolvency law being filed
voluntarily by Tenant, the adjudication of Tenant as a bankrupt, the issuance
by any
27
court of an order for relief as the filing against Tenant of a petition for
appointment of a receiver of all or any part of Tenant's assets or property
either in bankruptcy or other insolvency proceedings, unless such proceedings
shall be stayed or dismissed within sixty (60) days of the filing thereof, or
the levy against any portion of the assets or property of Tenant by the
Sheriff or other designated authority of any governmental subdivision having
jurisdiction thereover. If an order for relief shall be granted, Tenant, or
any party claiming on behalf of Tenant, shall be deemed to have given
adequate assurances only if Landlord is reasonably assured that a party or
substantial financial strength will continue occupancy of the Premiss,
continue to pay rent and in general be in a position to operate a business on
the Leased Premises for a term of more than one year.
Section 12.02 Effect of an Event Default
Upon the occurrence of any event of default, as a result thereof and
without entry or other action by Landlord:
(a) The balance of all renta and other charges to become due throughout
the term hereof shall, at the option of Landlord, be accelerated and shall be
immediately due and payable, and Landlord any in its own name, but as agent
for Tenant, assign, sublet or relet the Leased Premises for any period equal
to or greater or less than the remainder of the term hereof for any sum which
Landlord mat deem reasonable to any lessee Landlord may select, and for any
use or purpose which Landlord may designate. If Landlord so sublets or
assigns this Lease, Tenant hereby irrevocably constitutes and appoints
Landlord as Tenant's agent to collect rents due from such assignee or
sublessee and apply the same to the rent due hereunder without in any way
affecting Tenant's obligation to pay any unpaid balance of rent and other
charges due hereunder. In the event of such assignment or subletting,
Landlord shall apply the rents received therefrom to the obligation of Tenant
hereunder until Landlord shall have recovered in full all amounts due and
owing from Tenant to Landlord together with a service charge of ten percent
(10%) to Landlord. Landlord shall be under no obligation whatsoever, either
to assign, sublet or relet the Leased Premises, at any time or upon any
specific terms and conditions.
(b) At the option of Land this agreement and the term created hereby
shall cease and determine and become absolutely void without any
right on the part of Tenant to save the forfeiture by payment of any sum due
or by other performance of any term, covenant or condition broken or
defaulted, whereupon Landlord shall be entitled to recover damages for such
event of default in an amount equal to the present value of (a) the rent
28
reserved for the balance of the term hereof, less (b) the fair rental value
of the Leased Premises for the balance thereof.
Section 12.03 Remedies of Landlord
Upon the occurrence of any event of default, Landlord or anyone acting
on Landlord's behalf, at Landlord's option, may exercise any one or more the
following remedies:
(a) Without notice or demand enter the Leased Premises, breaking open
locked doors, if necessary, to effect entrance, without liability to action or
prosecution for damages for such entry or for the manner thereof, for the
purpose of distraining (to the extent permitted by law) or levying and for
any other purposes, and take possession of an sell all goods and chattels of
Tenant at auction on three (3) days' notice served in person on Tenant or
left on the Leased Premises, and retain the proceeds thereof on account of
Tenant's obligations hereunder; and Tenant hereby forever remises, releases
and discharges Landlord, and its agents, from all claims, actions, suits,
damages, and penalties, for or by reason or on account of any entry,
distraint, levy, appraisement or sale; or
(b) Enter the Leased Premises and without demand proceed by distress (if
permitted by law) and sale of the goods of Tenant there found (or by such
other means as may then be permitted to enforce Landlord's lien) to levy the
rent or other charges herein payable as rent, and all costs and officers'
commission, including watchmen's wages and sums chargeable to Landlord, and
further including a sum equal to five percent (5%) of the amount of the levy
as commission to the constable or other person making the levy, shall be paid
by Tenant and in such case all costs, officers' commissions and other charges
shall immediately attach and become part of the claim of Landlord for rent,
and any tender of rent without said costs, commissions and charges made after
the issue of a warrant of distress shall not be sufficient to satisfy the
claim of Landlord. Tenant hereby expressly waives in favor of Landlord the
benefit of all laws now made or which may hereafter be made regarding any
limitation as to the goods upon which, or the time within which, distress (or
any such other procedure) is to be made after removal of goods, and further
relieves Landlord of its obligations of proving or identifying such goods, it
being the purpose and intent of this provision that all goods of Tenant in,
on or about the Leased Premises shall be liable to distress for rent and
subject to Landlord's lien. Tenant authorizes the sale of any goods
distrained for rent at any time after five (5) days from said distraint
without any appraisement or condemnation thereof.
29
(c) Lease the Leased Premises or any part of parts thereof to such
person or persons for such rents and for such terms as may, in Landlord's
discretion, seem best without affecting Tenant's liability for any loss of
rent for the balance of the term.
(d) In the event of breach or threatened breach by Tenant of any
provision of this Lease, Landlord shall have the right of injunction as if
other remedies were not provided for herein.
(e) Any Minimum Rent and Additional Rent overdue for a period of more
than 5 days shall bear interest at the rate of twelve percent (12%) per annum
until paid to compensate Landlord for the extra expense of dealing with and
monitoring late payments. In addition, Tenant shall pay Landlord a late fee
of ten percent (10%) of the gross amount of any payment which is more than
five (5) days late.
(f) Tenant expressly waives any right of defense which it may have based
on any purported merger of any cause of action, and neither the commencement
of any action or proceeding nor the settlement thereof or entering of
judgment therein shall bar Landlord from bringing subsequent actions or
proceedings from time to time.
(g) Tenant hereby empowers any Prothonotary or attorney of any court of
Record to appear for Tenant in any and all actions which may be brought for
Minimum Rent and Additional Rent, including the charges, payments, costs and
expenses herein reserved, or herein agreed to be paid by Tenant and/or to
sign for Tenant an agreement for entering in any competent Court an amicable
action or actions for the recovery of such rent or other charges or expenses,
and in said suits or in said amicable action or actions for the recovery-of
such rent or other charges or expenses, in said suits or in said amicable
action or actions to confess judgment against Tenant for all or any part of
the rent specified in this Lease and then due and unpaid, and other charges,
payments, costs and expenses reserved as rent or agreed to be paid by Tenant
and then due and unpaid, and for interest and costs together with a
reasonable attorney's commission. Such authority shall not be exhausted by
one exercise thereof, but judgment may be confessed as aforesaid from time to
time as often as any of said rent and/or other charges reserved as rent or
agreed to be paid by Tenant shall fail due or be in arrears.
(h) Upon the expiration of then current term of this Lease or the
earlier termination or surrender hereof as provided in this Lease, it shall
be lawful for any attorney to appear as attorney for Tenant as well as for
all persons claiming by,
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through or under Tenant and to sign an agreement for entering in any
competent Court an amicable action in ejectment against Tenant and all
persons claiming by, through or under Tenant and therein confess judgment for
the recovery of Landlord of possession of the herein Premises, for which this
Lease shall be its sufficient warrant, whereupon, if Landlord so desires, a
writ of possession or other appropriate writ under the Rules of Civil
Procedure then in effect may issue forthwith, without any prior writ or
proceedings; provided, however, if or any reason after such action shall have
been commenced, the same shall be determined and the possession of the
Premises hereby demised remain in or be restored to Tenant, Landlord shall
have the right for the same default and upon any subsequent default or
defaults, or upon the termination of this Lease under any of the terms of
this Lease to bring one of more further amicable action or actions as
hereinbefore set forth to recover possession of the said Premises and confess
judgment for the recovery of possession of the Premises as hereinabove
provided.
(i) In any amicable action for ejectment and/or for rent in arrears,
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, and, if a true copy of this Lease (and of the truth of the
copy such affidavit shall be sufficient evidence) be filed in such action,
it shall not be necessary to file the original as a warrant of attorney, any
rule of Court, custom or practice to the contrary notwithstanding. Tenant
hereby releases to Landlord and to any and all attorneys who may appear for
Tenant all errors in said proceedings and all liability thereof. If
proceedings shall be commenced by Landlord to recover possession under the
Acts of Assembly and Rules of Civil Procedures, either at the end of the term
or earlier termination of this Lease, or for non-payment of rent or any other
reason, Tenant specifically waives the right to the 3 months' notice and to
the 15 or 30 days' notice required by the Landlord and Tenant Act of 1951,
and agrees that 5 days' notice shall be sufficient in either or any such case.
(i) Landlord shall use reasonable efforts to mitigate damages, and,
with respect to any computation of liquidated damages, Tenant shall be
entitled to a credit for the fair rental value of the Leased Premises.
Section 12.04 Cost of Enforcement
Tenant shall pay to Landlord, as Additional rent upon demand, all of
Landlord's cost, charges and expenses including without limitation the
reasonable fees of counsel, agents and others retained by Landlord for the
enforcement of Tenant's obligations under this Lease and also any such costs,
charges,
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expenses or fees incurred by Landlord in any litigation in which Landlord,
without Landlord's fault becomes involved or concerned by reason of this
Lease or the relationship of Landlord and Tenant under this Lease.
Section 12.05 Waiver of Notice, Right of Redemption and Trial by Jury
(a) With the exception of the notices specifically proved for in Section
12.01 of this Lease, tenant waives all rights to legal notice whether
provided by statute or common law and agrees that five (5) days notice of any
proceedings to recover possession at any time shall be sufficient.
(b) Tenant waives all rights of redemption granted by or under any
present or future laws in the event of Tenant being evicted or dispossessed
for any reason as provided in this Lease.
(c) The parties hereby waive trial by jury in any action, proceeding, or
counterclaim brought by either of them against the other on any matters
arising out of or in any way connected with this Lease, the relationship of
Landlord and Tenant, Tenant's use or occupancy of the Leased Premises, and/or
any claim of injury or damage.
Section 12.06 Cumulative Remedies
All of the remedies hereinabove given to Landlord and all rights and
remedies given to it by law and equity shall be cumulative and concurrent. No
determination hereof or the taking or recovering of the Leased Premises shall
deprive Landlord of any of its remedies or actions against Tenant for rent or
any and all other sums due at the time or which, under the terms hereof,
would in the future have become due if there had been no determination, nor
shall the bringing of any action for rent or for breach or default under any
term, condition or covenant, or the resort to any other remedy herein
provided for the recovery of rent, be construed as a waiver of the right to
obtain possession of the demised premises.
Section 12.07 Landlord's Right to Enforce Strictly
Any law, usage or custom to the contrary notwithstanding, Landlord shall
have the right at all times to enforce all terms, conditions and covenants
hereof in strict accordance herewith, notwithstanding any conduct or custom
on the part of Landlord in refraining from so doing at any time or times.
Further, the failure of Landlord at any time or times to enforce its rights
hereunder strictly in accordance with the same shall not be construed as
having created a custom in any way or
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manner contrary to any specific term, condition or covenant hereof, or as
having in any way or manner modified the same.
ARTICLE XIII -- SECURITY DEPOSIT
Section 13.01 Purpose of Deposit
The security deposit posted by Tenant under the terms of Section 1.06 of
this Lease shall be held by Landlord as security for the faithful performance
by Tenant of all of the terms, covenants, and conditions of this Lease
throughout the term and any extensions thereof. If at any time during the
term of this Lease any of the rent reserved in this Lease shall be overdue
and unpaid or any other sum payable by Tenant to Landlord under this Lease
shall be overdue and unpaid, Landlord may, in its sole discretion and in
addition to any other remedies provided at law or in equity or by this Lease
appropriate and apply any portion of such deposit to the payment of any such
overdue rent or other sum. Within sixty (60) days after expiration of the
term of this Lease, as such term might be extended from time to time,
Landlord shall refund the security deposit, if any, less any reduction
therein because of default on the part of Tenant.
Section 13.02 Use of Deposit
If Tenant shall fail to keep and perform any of the terms, covenants and
conditions of this Lease binding upon Tenant, Landlord may at its sole
discretion in addition to any other right or remedy provided in this Lease or
at law or in equity, appropriate and apply so much of such deposit as may be
necessary to compensate Landlord for all loss or damage sustained or
suffered by Landlord by reason of such breach by Tenant. Should any part of
such deposit be appropriated and applied by Landlord for any reason, Tenant
shall promptly upon receipt of such notice thereof, pay to Landlord such
amounts as may be necessary to restore such deposit to the amount set forth
in Section 1.06. Tenant's failure to maintain such deposit at the amount set
forth in Section 1.06 shall constitute a material breach of this Lease.
Section 13.03 Transfer of Deposit
Upon any transfer of the Landlord's interest in this Lease to a
successor, Landlord may deliver the amount of such deposit to such successor
whereupon Landlord shall be relieved of any obligation to return such deposit
to Tenant and Tenant shall thereafter look to such successor for
the performance of all the terms of this Article.
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ARTICLE XIV - MISCELLANEOUS PROVISIONS
Section 14.01 Brokers
Landlord and Tenant represent to each other that neither has dealt with
any broker, agent, finder or other intermediary, and each party agrees to
indemnify, defend and hold the other harmless from and against any and all
liabilities, suits or claims arising by reason of any such party claiming to
have dealt with either Landlord or Tenant in connection with this Lease.
Section 14.02 Tenant
The word "Tenant" used in this Lease shall mean every person or party
named as Tenant in this Lease. Any notice given as provided in Section 1.08
shall bind all such parties and it shall have the same force as if given to
all of them. The use of the neuter singular pronoun to refer to Landlord and
Tenant shall be deemed a proper reference to either of them whether they be
an individual, a partnership or any form of joint venture.
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Section 14.03 Accord and Satisfaction
No acceptance by Landlord of an amount less than the monthly rent and
other payments stipulated to be due under this Lease shall be deemed to be
other than a payment on account of the earliest such rent or other payments
then due or in arrears nor shall any endorsement or statement of any check or
letter accompanying any such payment be deemed an Accord and Satisfaction.
Landlord may accept any check for payment by Tenant without prejudice to
Landlord's right to recover the remainder of any rent or other payment then
in arrears and Landlord may pursue any other remedy provided in this Lease.
No acceptance by Landlord of any payment of rent or other sum by Tenant shall
be deemed a waiver of any of the obligations of Tenant under this Lease.
Section 14.04 Holding Over
Any Holding Over after the expiration of the term of this Lease, with
the consent of Landlord, shall at Landlord's option be construed to be a
tenancy either from month to month at the rent and other payments herein
specified and shall otherwise be subject to the conditions, covenants and
agreements of this Lease. If Tenant shall Hold Over without the consent of
Landlord after the termination of this Lease for any reason whatsoever,
Tenant shall pay as liquidated damages and not as a penalty an amount equal
to twice the prorated Minimum Rent for the period during which such Holding
Over continues, but the acceptance of such amount by Landlord shall be
without prejudice to any other rights or remedies of Landlord at law or in
equity or under this Lease.
Section 14.05 Recording
Tenant shall not Record this Lease without the written consent of
Landlord. If requested by Landlord a memorandum or short-form Lease setting
from only such items as are required to be set forth under the Laws of the
Commonwealth of Pennsylvania in effect at such time shall be executed by
Tenant.
Section 14.06 Delays
If either party to this Lease shall be delayed or prevented from the
performance of any obligation hereunder (other than the obligation of Tenant
to pay Minimum Rent or Additional Rent when due) by reason of labor disputes,
inability to procure materials, failure of utility services, restrictive
governmental laws or regulations, riots, insurrection, war or other similar
causes beyond the control of such party, the performance of such act shall be
excused for the period of the delay. The provisions
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of this Section 14.08 shall not excuse Tenant from the prompt payment of any
sums payable under any of the provisions of this Lease.
Section 14.07 Entire Agreement
This Lease and the Exhibits and any Rider attached hereto sets forth the
Entire Agreement between the Parties and there are no other agreements
expressed or implied, oral or written, except as herein set forth. This
Agreement may not be amended, altered or changed except in writing executed
by both the parties hereto.
Section 14.08 Captions
The Captions, Section numbers, Article numbers and Index appearing in
this Lease are inserted only for the convenience of the Parties and shall not
in any way affect the meaning or intent of any portion of this Lease.
Section 14.09 Partial Invalidity and Construction
The Sections of this Lease are intended to be severable. If any Section
or provision of this Lease shall be held to be unenforceable by any court of
competent jurisdiction, this Lease shall be construed as though such Section
had not been included in it. If any Section or provision of this Lease shall
be subject to two constructions, one of which would render such Section or
provision invalid, then such Section shall be given that construction which
would render it valid.
Section 14.10 Successors
The provisions of this Lease shall be binding upon the respective
Parties hereto and their respective heirs, administrators, successors and
assigns provided that this provision shall not be deemed the consent by
Landlord to any subletting or assignment by Tenant except as herein
specifically provided.
Section 14.11 No Joint Venture
Any intention to create a joint venture or partnership is hereby
expressly disclaimed.
Section 14.12 Landlord's Waiver
Notwithstanding anything contained within this Lease to the contrary,
Tenant shall have the right to finance and to secure under the Uniform
Commercial Code, inventory fixtures,
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furnishings, furniture, equipment, machinery, signs, and other personal
property located at the Leased Premises. Tenant's right to finance as herein
provided shall be paramount and superior to any lien of Landlord and Landlord
hereby waives any statutory or contractual landlord's lien it may have in
Tenant's personalty. Landlord agrees to execute waiver agreements in favor of
any purchase money seller, lessor or lender which has financed or may finance
in the future such items.
Section 14.13 Landload's Expenses
Any and all expenses and costs incurred by Landlord under the Lease that
are payable either directly or indirectly by Tenant shall be limited to
reasonable expenses and costs necessary to Landlord's performance of its
obligations under the Lease.
furnishings, furniture, equipment, machinery, signs, and other personal
property located at the Leased Premises. Tenant's right to finance as herein
provided shall be paramount and superior to any lien of Landlord and Landlord
hereby waives any statutory or contractual landlord's lien it may have in
Tenant's personalty. Landlord agrees to execute waiver agreements in favor of
any purchase money seller, lessor or lender which has financed or may finance
in the future such items.
Section 14.13 Landload's Expenses
Any and all expenses and costs incurred by Landlord under the Lease that
are payable either directly or indirectly by Tenant shall be limited to
reasonable expenses and costs necessary to Landlord's performance of its
obligations under the Lease.
In WITNESS WHEREOF, the parties hereto have executed this Lease the day
and year first above written.
WITNESS LANDLORD:
/s/ Illegible
------------------------------- ------------------------------------
------------------------------- ------------------------------------
ATTEST: TENANT
/s/ Xxxx Xxx Xxxxx /s/ Xxxx X. Xxxxxxxxx
------------------------------- ------------------------------------
Corporate Secretary CFO
------------------------------- ------------------------------------
EXHIBIT A
[graphic]
EXHIBIT B
DESCRIPTION OF THE LAND ON WHICH THE BUILDING IS LOCATED
Address: 000 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx
Tax Parcel No.: 15142007
Xxxxxxxx #00, Xxxxx 00 X, Xxx 00
Size: 69,250 square feet
Legal Description: [attach]
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