LEASE AGREEMENT
Dated December 16, 1996
By and Between
XXXXXXX X. XXXXXXX,
as Lessor
and
BLUE FISH CLOTHING, INC.,
as Lessee
RE:
0000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxxxxxx, Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxxxx
LEASE AGREEMENT
THIS AGREEMENT made this 16th day of December, 1996, between XXXXXXX X.
XXXXXXX, an individual (with his heirs and assigns, hereinafter called "Lessor),
with offices at 00 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, and BLUE FISH
CLOTHING, INC. (hereinafter called "Lessee"), whose present address is #0 Xxxxx
Xxxxxx, Xxxxxxxxxx, XX 00000.
WHEREAS, Lessor is the owner of that certain parcel of property
consisting of approximately 7.5 acres, situated in the Township of Xxxxxx,
Northampton County, Pennsylvania, known as 0000 Xxxxxxxx Xxxxxx, as specifically
depicted on Exhibit A attached hereto (the "Land"), being improved with four
buildings, i.e., building "1A" containing 11,440 square feet, building "2"
containing 33,600 square feet, building "3" containing 23,042 square feet, and
building "10" containing 27,900 square feet, together with parking facilities
for approximately 175 vehicles and related appurtenances (the "Improvements"),
which Land and Improvements collectively herein are referred to as the
"Property"; and
WHEREAS, Lessee desires to lease from Lessor a portion of the Property
consisting of building "2", building "3", building "1a", the fifth floor and
parking facilities for 160 vehicles and related appurtenances, as specifically
depicted on Exhibit B attached hereto and hereby made a part hereof (the
"Demised Premises"); and
WHEREAS, Lessor has agreed, among other things, to lease to Lessee the
Demised Premises in accordance with the terms and conditions of this Lease
Agreement.
NOW THEREFORE, in consideration of the mutual covenants herein set
forth and intending to be legally bound, Lessor and Lessee agree, as follows:
ARTICLE 1 - LEASE OF DEMISED PREMISES
1.1 Lease of Demised Premises. Lessor hereby leases the Demised
Premises to Lessee, and Lessee hereby leases the Demised Premises from Lessor,
for the Term herein described, at the rent and upon the mutual covenants and
conditions set forth in this Lease Agreement.
ARTICLE 2 - TERM; DELIVERY OF DEMISED PREMISES
2.1 Term; Delivery of Demised Premises. Term: Fifteen (15) years,
commencing on the earlier of (i) the date upon which the renovations to the
Premises (the "Renovations") have been substantially completed in accordance
with the plans and specifications (the "Plans and Specifications") set forth on
Exhibits B & C (other than responsibility and work that cannot be completed on
such date provided such completion will not substantially interfere with
Tenant's use of the Premises) or (ii) the date on which Tenant takes possession
of, or commences the operation of its business in, any or all of the Premises
(the "Commencement Date") and ending oat 5:00 PM, EST, on the last day
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of the calendar month in which falls the fifteenth (15th ) anniversary of the
Commencement Date, unless sooner terminated in accordance with the provisions
hereof. Tenant, however, shall have the right to enter the Premises prior to the
Commencement date in order to perform those items of Tenant fit-out and
completion of construction which are to be completed by Tenant and such entry
and construction shall not be deemed to be taking of possession of the Premises
by Tenant. Landlord shall notify Tenant in writing as soon as Landlord deems the
Renovations to be substantially completed. In the event of any dispute as to
when and whether the work performed or required to be performed by Landlord has
been substantially completed, the certificate of an A.I.A. registered architect
or a temporary of final certificate of occupancy issued by the local governing
authority shall be conclusive evidence of such completion, effective on the date
of the delivery of a copy of any such certificate to Tenant. The taking of
possession by Tenant shall be deemed conclusively to establish that the
Renovations have been completed in accordance with the Plans and Specifications
and the Premises are in good and satisfactory condition as of when possession
was so taken (except for such items as Landlord is permitted to complete at a
later date, which items shall be specified by Landlord to Tenant in writing).
Upon the Commencement Date, Tenant shall execute and deliver to Landlord a
letter of acceptance of delivery of the Premises, such letter to be on
Landlord's standard form therefor. Notwithstanding the foregoing, however, the
parties agree that the Commencement Date shall be September 1, 1997.
ARTICLE 3 - RENT AND COST REIMBURSEMENT PAYMENT
3.1 Lessee shall pay the Basic Rent in the minimum annual amounts, as
follows:
(a) Year 1; the sum of Two Hundred Sixty-Seven Thousand One
Hundred Twenty Dollars ($267,120.00);
(b) Year 2; the sum of Two Hundred Seventy-Five Thousand One
Hundred Thirty-Three Dollars and Sixty Cents ($275,133.60); and
(c) Each year thereafter during the term hereof, a sum equal to
the minimum annual amount for the immediately preceding year plus three percent
(3%) of such amount.
Each minimum annual amount shall be payable in twelve, equal monthly
installments in advance, without demand, on or before the last day of each
calendar month during the Term. If the Commencement Date or Expiration Date
falls on a day other than the first or last day of a calendar month,
respectively, then the Basic Rent (as well as the Cost Reimbursement Payment for
such month as described in Section 3.2, below) for the fraction of a month at
the beginning or the end of the Term shall be prorated for the number of days
during such calendar month which this Lease Agreement was in effect based on the
actual number of days in such month.
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3.2 Cost Reimbursement Payment. Beginning with the Commencement Date
and during the Term of this Lease Agreement, Lessee shall pay to Lessor with
respect to the Demised Premises, the following:
(a) All garbage and/or trash collection charges assessed or
imposed on the Demised Premises during the term of this Lease Agreement;
(b) Any and all other costs reasonably incurred by Lessor in the
operation and maintenance of the Demised Premises, including but not limited to
water and sewer rentals, repairs, management fees, cleaning, maintenance or
mechanical systems and service contracts, the costs of heat, light, power,
steam, fuel, labor, supplies, tools, equipment and insurance, and all items
properly constituting direct operating costs, which items are or may be deducted
(and not capitalized) for Federal income tax purposes, according to standard
accounting practices as determined by the Lessor's accountant; and
(c) A common area maintenance charge of Fifteen Thousand and
00/100 dollars ($15,000.00) or Five percent (5%) of the Basic Rent, whichever is
greater.
With respect to operation and maintenance costs referenced in Section
3.2(b), on Lessee's occupancy of the Demised Premises, and at the commencement
of each lease year thereafter, Lessor shall provide Lessee with an estimate of
operation and maintenance costs for such upcoming year. Such amount shall be pro
rated over such upcoming year, with Lessee making equal monthly installments of
such amount as Additional Rent. Within thirty (30) days after the last day of
each lease year, Lessor shall provide Lessee with an accounting of operation and
maintenance expenses for such just completed lease year. If actual operation and
maintenance expenses for such year exceeded the projected amount by up to five
percent (5%), Lessee shall pay such amount to Lessor within thirty (30) days of
Lessee's receipt of such accounting. Lessee shall not be required to pay
operation and maintenance expenses greater than five percent (5%) above the
amount projected for any applicable year. If actual operation and maintenance
expenses for any lease year are less than the amount projected by Lessor for
such year, then the amount by which projected operation and maintenance expenses
that have be paid by Lessee during such year exceeds actual operation and
maintenance expenses for such year shall be credited against Lessee's payment of
operation and maintenance expenses for the next lease year. The foregoing
provisions of this Section 3.2 notwithstanding, in accordance with Section 15.1
hereof, Lessee shall be responsible for the payment of all of its own utilities.
3.3 Additional Rent. All sums of money due to Lessor hereunder that are
not specifically characterized as Basic Rent, including the Cost Reimbursement
Payment, shall constitute Additional Rent, and if any such sum is not paid when
due it shall nevertheless be collectible as Additional Rent with the next
installment of Basic Rent thereafter due, but nothing contained herein shall be
deemed to suspend or delay the payment of any amount of money at the time it
becomes due and payable hereunder, or to limit any other remedy of Lessor.
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3.4 Late Charges and Interest.
(a) Lessee hereby acknowledges that late payment of Rent (after
the expiration of any applicable grace period) will cause Lessor to incur costs
not contemplated by this Lease Agreement, the exact amount of which will be
difficult to ascertain. Such costs include, but are not limited to, processing
and accounting charges and late charges which may be imposed on Lessor by the
terms of any mortgage or trust deed covering the Demised Premises. Accordingly,
if any payment of Rent is not made when due, at Lessor's election Lessee shall
pay to Lessor a late charge equal to 5% of such overdue amount. The parties
hereby agree that such late charge represents a fair and reasonable estimate of
the costs Lessor will incur by reason of late payment by Lessee. Acceptance of
such late charge by Lessor shall in no event constitute a waiver of Lessee's
default with respect to an overdue amount or prevent Lessor from exercising any
of its other rights and remedies provided for herein.
(b) If Rent payment due hereunder is not paid in full when due,
the amount due shall bear interest from the due date until paid at a rate equal
to the greater of fifteen (15%) per annum or the rate of interest announced from
time to time in the Wall Street Journal as the "prime rate" plus 2% per annum;
provided, however, that interest shall not be payable on late charges payable by
Lessee pursuant to subsection (a), above; and further provided that in no event
shall interest and/or late charges payable hereunder be payable to the extent
that such payments would exceed the maximum amounts payable under applicable
law. Payment of interest shall not excuse or cure any default hereunder by
Lessee. The calculation of interest charges shall be made on an actual days
elapsed basis with a 365 or 366 day year, whichever may be applicable.
3.5 Manner of Payment. All payments due from Lessee to Lessor shall be
paid to Lessor, absolutely net, without deduction or offset whatsoever, in
lawful money of the United States of America at the Lessor's offices, or to such
other person or at such other place as Lessor may from time to time designate in
writing to Lessee. If more than one check given in payment of any sum due
hereunder is dishonored by the bank on which it is written, at Lessor's election
Lessee shall thereafter pay any sums due hereunder by cashier's check.
ARTICLE 4 - TAXES AND ASSESSMENTS
4.1 Impositions. Lessee shall pay as additional rent for the Demised
Premises, all taxes and assessments, general and special, water and sewer rates
and all other impositions (herein "Impositions"), ordinary and extraordinary, of
every kind and nature whatsoever, which may be levied, assessed, or imposed upon
the Demised Premises, or any part thereof, or upon any improvements at any time
situated thereon, accruing or becoming due and payable during the term hereof;
provided, however, that the general taxes levied against the Demised Premises
shall be prorated between Lessor and Lessee as of the Commencement Date for the
first year of the term and as of the Expiration Date for the last year of the
term, all on the basis of the then most recently ascertainable real estate tax
bills. Lessee may take the benefit of the provisions of any statute or ordinance
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permitting any assessment to be paid over a period of years, and Lessee shall be
obligated to pay only those installments falling due during the term hereof.
4.2 Alternative Taxes. If at any time during the term hereof the method
of taxation prevailing at the Commencement Date shall be altered so that any new
tax, assessment, levy, imposition, or charge, or any part thereof, shall be
measured by or be based in whole or in part upon the Lease Agreement or Demised
Premises, or the rent, additional rent or other income therefrom and shall be
imposed upon Lessor, then all such taxes, assessments, levies, impositions, or
charges, or the part thereof, to the extent that they are so measured or base,
shall be deemed to be included within the term "Impositions" for the purposes
hereof, to the extent that such impositions would be payable if the Demised
Premises were the only property of Lessor subject to such Impositions, and
Lessee shall pay and discharge the same as herein provided in respect of the
payment of Impositions. There shall be excluded from Impositions all federal
income taxes, federal excess profit taxes, franchise, capital stock, and federal
estate or state inheritance taxes of Lessor.
4.3 Lessee's Payment of Impositions. In the month prior to the month in
which Impositions described in Sections 4.1 and 4.2 hereof are due, Lessor shall
provide notice to Lessee of nature of such Impositions and of the amount due by
Lessee in accordance with Sections 4.1 and 4.2 hereof. Lessee shall make payment
of all such Impositions prior to the due date for payment thereof.
4.4 Evidence of Payment. Lessee shall deliver to Lessor duplicate
receipts or photostatic copies thereof showing the payment of all said taxes,
assessments, and all other Impositions, within thirty (30) days after the
respective payments evidenced thereby.
4.5 Right To Contest. Lessee shall have the right to contest the
validity and amount of any taxes and assessments, provided title to the Property
shall not be endangered or the Lessor penalized. Lessor agrees to cooperate with
Lessee in any action, at no cost or expense to Lessor.
ARTICLE 5 - USE OF THE PREMISES
5.1 General. The Demised Premises shall be used solely for
manufacturing and related office and other uses normally incident thereto and
for no other purpose; provided, however, that, on Lessor's prior written consent
(which consent shall not be unreasonably withheld), the Demised Premises may by
used for other related purposes and activities as may be permitted by applicable
zoning ordinances.
5.2 Standards of Operation. Lessee covenants and agrees as follows:
(a) Lessee will not do or permit to be done in, on, or about the
Property, nor bring, or keep, or permit to be brought or kept therein, anything
which (i) is prohibited by or will in any way violate or conflict with any
applicable law, statute,
ordinance or governmental rule or regulation now in force or which may hereafter
be enacted or promulgated, (ii) is prohibited by, or will in any way increase
the existing rate of, otherwise adversely affect, or cause a cancellation of any
fire or other insurance policy covering the Property or any part thereof or any
of its contents, or (iii) will in any way injure, obstruct or interfere with the
rights of other occupants of the Property.
(b) Lessee will not store or place any materials of any kind
whatsoever outside the boundaries of the Demised Premises.
(c) Lessee shall provide to Lessor, at least ten (10) days prior
to Commencement Date, a comprehensive listing of all materials proposed to be
used or stored by Lessee at the Demised Premises that are explosive, highly
flammable, noxious in odor, or that may be otherwise dangerous in order that
Lessor can insure that such materials are properly stored and/or used by Lessee;
Lessor retains the right to require Lessee to move, remove, or otherwise alter
the storage of such materials due to concerns regarding safety and health of
other occupants of the Property and the surrounding neighborhood.
(d) With the exception of ornamental fish, no animals, including
without limitation, dogs, cats, monkeys, rats and mice, shall be brought into or
kept in or about the Demised Premises.
5.3 Lessor's Rules and Regulations. Lessee and Lessee's employees,
agents, customers, invitees and licensees shall observe and comply with all
reasonable rules and regulations established by Lessor with respect to the
manner of conducting business in the Premises and the upkeep and the use
thereof, including reasonable changes and additions to, and modifications
thereof which may be announced by Lessor from time to time. Any such rules and
regulations shall be deemed a part of this Lease Agreement, as conditions, with
the same effect as though written herein, and Lessee also covenants that said
rules and regulation will be faithfully observed by Lessee, Lessee's employees,
and all persons visiting the Demised Premises or claiming under Lessee.
5.4 Security. Lessee shall, at its sole cost and expense, be
responsible for providing security services for the Premises and Lessee shall
take such steps as may reasonably be necessary to control its employees, agents,
customers and others in the Premises so as not to present security problems to
other areas of the Property. Lessee, Lessee's employees, agents and others shall
be subject to security policies and procedures and rules and regulations as may
be established by the Lessor, but Lessor shall not be, in any way, responsible
for providing any security services to the Premises or for the benefit of Lessee
or Lessee's agents, employees or customers.
5.5 Signs. Lessee shall not place any signs in windows or any other
areas visible from the exterior of the Premises unless approved by Lessor, which
approval may be granted or withheld by Lessor at its sole option for any reason
or for no reason. All exterior signage is subject to the prior written approval
of Lessor. Any sign or related
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item must be in conformance with existing ordinances of Xxxxxx Township or other
ordinances or regulations, as applicable.
ARTICLE 6 - INSURANCE
6.1 Kinds of Insurance. As additional rent for the Demised Premises,
Lessee shall procure (unless otherwise provided herein) and maintain policies of
insurance, at Lessee's own cost and expense, insuring the following:
(a) The improvements situated upon the Demised Premises against
loss or damage by fire, lightning, wind storm, hail storm, aircraft, vehicles,
smoke, explosion, riot, or civil commotion as provided by the standard fire and
extended coverage policy and all other risks of direct physical loss as insured
against under special extended coverage endorsement, which insurance coverage
shall be obtained by Lessor and shall be for not less than 100 percent of the
full replacement cost of such improvements with all proceeds of insurance
payable to Lessor, Lessee shall be responsible for the payment, as additional
rent, of all premiums attributable to such insurance coverage of improvements at
the Demised Premises;
(b) Lessor and Lessee from all claims, demands, or actions for
injury to or death of any person in an amount of not less than $1,000,000 for
injury to or death of more than one person in any one occurrence to the limit of
$3,000,000, and for damage to property in amount of not less than $1,000,000
made by or on behalf of, any person or persons, firm, or corporation arising
from, related to or connected with the Demised Premises, including any period
during which Lessee is engaged in making any repairs or alterations to the
premises and including all damage to or from signs, glass, awnings, fixtures, or
other appurtenances now or thereafter erected by, on or about the Property
during the term hereof. Such insurance shall comprehend full coverage of the
indemnity set forth in Article 17 hereof;
(c) Lessor and Lessee with the same limits of coverage as
provided in subsection (b) of this Section for loss or damage by boiler or
internal explosion or breakdown of boilers;
(d) Lessee from all workers' compensation claims;
(e) Lessor and Lessee against breakage of all plate glass
utilized in the improvements on the Demised Premises; and
(f) Lessor from loss of rents during the period while the Demised
Premises are untenantable due to fire or other casualty (for the maximum period
for which such insurance is available), but the purchase of such rent insurance
shall not relieve Lessee from the primary obligation to pay rent during any such
period of untenantability.
6.2 Form. The aforesaid insurance shall be by companies and in form,
substance and amount (where not stated above) satisfactory to Lessor and any
mortgagee of Lessor, and shall contain standard mortgage clauses satisfactory to
Lessor's mortgagee. The aforesaid insurance shall not be subject to cancellation
except after at least thirty days' prior written notice to Lessor and any
mortgagee of Lessor. The original insurance policies (or certificates thereof
satisfactory to Lessor) together with satisfactory evidence of payment of the
premiums thereon shall be deposited with Lessor at the Commencement Date and not
less than thirty days prior to the end of the term of each such coverage. Lessee
shall make monthly deposits to apply toward insurance premiums in the same
manner as made and provided in the case of real estate taxes in Article 4. If
Lessor is a trust, the insurance referred to in subsections 6.1(b), 6.1(c), and
6.1(e) hereof shall also insure the beneficiary or beneficiaries thereof.
6.3 Mutual waiver of subrogation rights. Whenever (1) any loss, cost,
damage, or expense resulting from fire, explosion, or any other casualty or
occurrence is incurred by either of the parties to this Lease Agreement in
connection with the Demised Premises and (2) such party is then covered in whole
or in part by insurance with respect to such loss, cost, damage, or expense,
then the party so insured hereby releases the other party from any liability it
may have on account of such loss, cost, damage, or expense to the extent of any
amount recovered by reason of such insurance and waives any right of subrogation
that might otherwise exist in or accrue to any person on account thereof,
provided that such release of liability and waiver of the right of subrogation
shall not be operative in any case where the effect thereof is to invalidate
such insurance coverage or increase the cost thereof (provided that in the case
of increased cost the other party shall have the right, within twenty days
following written notice, to pay such increased cost, thereupon keeping such
release and waiver in full force and effect).
ARTICLE 7 - ASSIGNMENT AND SUBLETTING
7.1 Consent Required. Lessee shall not, without Lessor's prior written
consent, or mortgagee's consent
(a) Assign, convey, or mortgage this Lease Agreement or any
interest under it;
(b) Allow any transfer thereof or any lien upon Lessee's interest
by operation of law;
(c) Sublet the Demised Premises or any part thereof; or
(d) Permit the use or occupancy of the Demised Premises or any
part thereof by anyone other than Lessee.
Lessor agrees that he will not unreasonably withhold his consent to any
assignment or sublease, provided that if Lessee requests Lessor's consent to a
sublease of the entire Demised Premises, Lessor may, in lieu of granting such
consent or reasonably
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withholding the same, terminate this Lease Agreement, effective on the
commencement date specified in the sublease to which Lessor's consent was
requested. No permitted assignment or subletting shall relieve Lessee of
Lessee's covenants and agreements hereunder and Lessee shall continue to be
liable as a principal and not as a guarantor or surety, to the same extent as
though no assignment of subletting had been made.
7.2 Merger or Consolidation. Lessee may, without Lessor's consent,
assign this Lease Agreement to any corporation resulting from a merger or
consolidation of Lessee upon the following conditions:
(a) That the total assets and net worth of such assignee after
such consolidation or merger shall be equal to or more than that of Lessee
immediately prior to such consolidation or merger;
(b) That Lessee is not at such time in default hereunder; and
(c) That such successor shall execute an instrument in writing
fully assuming all of the obligations and liabilities imposed upon Lessee
hereunder and deliver the same to Lessor.
If the aforesaid conditions are satisfied, Lessee shall be discharged from any
further liability hereunder.
7.3 Other transfer of lease. Lessee shall not allow or permit any
transfer of this Lease Agreement, or any interest hereunder, by operation of
law, or convey, mortgage, pledge, or encumber this Lease Agreement or any
interest herein.
ARTICLE 8 - ALTERATIONS
8.1 Lessor Approval. No alterations, additions or improvements to the
Demised Premises shall be made without first submitting a detailed description
thereof to Lessor and obtaining Lessor's written approval, such approval not to
be unreasonably withheld. All alterations, additions or improvements made by
Lessee and all fixtures attached to the Demised Premises shall become the
property of Lessor and remain at the Demised Premises unless otherwise agreed in
writing. Any item under this section must be in conformance with existing
ordinances of Xxxxxx Township or other ordinances or regulations, as applicable.
8.2 Weight Limitation. Lessee shall not place items anywhere on the
Demised Premises having weight in excess of the safe bearing capacity of the
improvements.
8.3 Removal of Fixtures. The fixtures and other alterations which are
made on the Demised Premises on behalf of Lessee which are capable of removal
must be removed at the option of the Lessor at the termination of this Lease
Agreement. Lessee shall remove the fixtures and repair the damage to the
premises, if any, caused by such
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removal at Lessee's expense. Lessor shall notify Lessee of its desire regarding
removal within sixty (60) days from the expiration of the then current term.
8.4 Initial Lessor Renovations. Renovations undertaken for and on
behalf of the Lessee by the Lessor shall be undertaken, at Lessor's expense, in
accordance with the approved plans and specifications attached hereto as Exhibit
C.
ARTICLE 9 - DAMAGE FROM FIRE OR OTHER CASUALTY
9.1 Termination. If, during the term of this Lease Agreement, or any
renewal or extension thereof, any building is so damaged by fire or other
casualty that the Demised Premises cannot be used for the purposes for which the
premises were leased, as described in Article 5 (whether or not the Demised
Premises are damaged), then, at Lessor's option, the term of this Lease
Agreement upon written notice from Lessor, given within thirty days after the
occurrence of such damage, shall terminate as of the date of the occurrence of
such damage; provided, however, that if, on the occurrence of such damage or
destruction, Lessor does not provide notice of termination as hereinabove
provided, but elects to repair the damaged building, either party may terminate
this Lease Agreement, effective as of the date of such damage, if such repairs
and restoration cannot be completed within 270 days after the date of occurrence
of such damage so as to reasonably restore the Demised Premises to the use for
which they were leased hereunder. In either such case, Lessee shall pay the rent
to the time of such termination and Lessor may enter upon and repossess the
Demised Premises without further notice and with the right to break in forcibly
to take possession.
9.2 Suspension of Rent. If Lessor does not elect to terminate the term
of this Lease Agreement, Lessor may repair the damaged building, and Lessor may
enter and possess the Demised Premises for that purpose, and the rent shall be
apportioned and suspended if and when Lessee is deprived of the Demised
Premises; provided, however, that if Lessee is only deprived of a portion of the
Demised Premises only an equitable portion of the rent shall be suspended.
9.3 Continued Use by Lessee. If the Demised Premises shall be only
slightly damaged so that such damage or the damage to any building a part of the
Demised Premises does not render the Demised Premises unfit for the purposes for
which the premises were leased as described in Article 5, Lessor will repair
whatever portion, if any, of the Demised Premises which may have been damaged
and Lessee will continue in possession and no rent will be apportioned or
suspended.
9.4 Disputed Rent Payment. If a dispute arises as to the amount of rent
due under this Article 9, Lessee agrees to pay the full amount claimed by
Lessor. Lessee shall, however, have the right to proceed by law to recover the
excess payment, if any.
9.5 No Obligation to Restore. In no event shall Lessor be obligated to
repair, restore or replace any fixtures, improvements, alterations or other
property for or on
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which Lessee carries or should have carried appropriate insurance, regardless of
whether or not Lessee receives any insurance settlement on its claim or claims
thereunder.
ARTICLE 10 - LESSOR'S RIGHT TO ENTER; INSPECTION
10.1 Permitted Entry. Lessee will permit Lessor, Lessor's agent or
employees or any other person or persons authorized by Lessor, in writing, to
inspect the Demised Premises at any time, and to enter the Demised Premises if
Lessor shall so elect, for the purpose of making alterations, improvements or
repairs to any building or for any purpose in connection with the operation or
maintenance of any building, without depriving Lessee of the use of the Demised
Premises unreasonably, and, also, for the purpose of showing the Demised
Premises to persons wishing to purchase the same, or at any time within one year
prior to the expiration of the Lease term, to persons wishing to rent the
Demised Premises. Lessee shall, within one year prior to the expiration of the
term hereof, permit the usual notice of "To Let" or "For Sale" to be placed on
the Demised Premises and to remain thereon without molestation.
ARTICLE 11 - CONDITION OF DEMISED PREMISES; MAINTENANCE
11.1 Condition of Demised Premises. At the expiration or other
termination of this Lease Agreement, Lessee shall leave the Demised Premises,
and during the term hereof will keep the same, in good order and condition,
ordinary wear and tear and damage by fire or other casualty alone excepted; and
for that purpose and except as stated, Lessee will make all necessary repairs
and replacements. All fixtures at the Demised Premises, including any and all
fixtures that are part of improvements made to the Demised Premises, shall be a
part of the Demised Premises and shall not be removed by Lessee. On Lessee's
removal of improvements other than fixtures, Lessee shall be responsible for the
repair of any and all damages to the Demised Premises occasioned by such
removal. Lessee will use every reasonable precaution against fire and will give
Lessor prompt notice of any damage to or accident upon the Demised Premises.
Lessee will also at all times remove all dirt, rubbish, waste and refuse from
the Demised Premises and at the termination of the term will also have had
removed all its property therefrom, to the end that Lessor may again have and
repossess the Demised Premises. Lessee acknowledges that the Demised Premises
are now in good order and condition. Except as expressly otherwise provided in
this Lease Agreement, Lessor shall have no obligation to make any repairs,
improvements or alterations to the Demised Premises at any time.
11.2 Lessor's Responsibility. Lessor shall keep the structural
supports, exterior surfaces, and structural elements of the exterior walls and
roof of the buildings that are a part of the Demised Premises in good order and
repair at Lessor's expense. Lessor shall not, however, be under any obligation
to maintain windows, doors, or glass wherever located. Lessor shall also operate
and maintain the common areas and facilities as hereafter provided. Lessor shall
have no responsibility to make any repairs hereunder until a reasonable time
after receipt of written notice of the need for such repairs.
11.3 Lessor's Responsibility. Lessee shall, at all times during the
term hereof and upon surrender or termination, keep and maintain in good and
substantial order and repair and make all necessary repairs, renewals,
replacements, and decorations upon or in connection with all other parts of the
Demised Premises, not explicitly the responsibility of Lessor, at Lessee's sole
cost and expense. These parts of the Demised Premises include, but are not
limited to, all doors, windows, window wall assembly and door frames, glass,
walls and wall coverings, floors and floor coverings, electrical installations,
plumbing installations and fixtures, heating, ventilating, and air-conditioning
equipment and systems, pipes, wiring, gas, steam, and electrical equipment and
fixtures, dock bumpers, seals, and dock equipment and facilities, and all other
installations, equipment, fixtures, and appurtenances.
ARTICLE 12 - COMMON AREAS
12.1 Definition. The term "common areas and facilities" shall mean all
parking areas, access roads, drives, and sidewalks, lawns and landscaping,
including lawn sprinkler systems, if any, exterior lighting, building sprinkler
systems, if any, and all other space and facilities used in common or available
for use in common by all tenants of the Property, their employees, customers, or
invitees.
12.2 Operation and Maintenance. Lessor shall operate and maintain, and
may impose reasonable rules for the use of the common areas and facilities of
the Property of which the Demised Premises are a part. Operating and maintaining
the common areas and facilities shall include operating, furnishing,
maintaining, repairing, and replacing parking, access, and drive areas, exterior
building and parking area lighting, cleaning, painting, and striping, snow, ice,
and debris removal, landscaping areas, utility services to the Demised Premises
not separately metered and common area utility services, if any, building
sprinkler systems, if any, and such other services and facilities for use or
benefit of all tenants of the Property. This provision shall not require the
Lessor to furnish any common area or facility not in place at the execution of
this Lease Agreement nor shall it impede or restrict the alteration, removal, or
conversion of use of any existing common areas or facilities.
ARTICLE 13 - HOLDING OVER BEYOND END OF LEASE TERM
13.1 Termination or Continuation; Notice. Either party hereto may
terminate this Lease Agreement at the end of the term set forth in Section 2.1
by giving to the other party written notice of termination at least ninety (90)
days prior to the end of said term. But, in default of such notice, this Lease
Agreement shall continue at the same rate of rent, without any allowances, and
upon the same covenants and conditions in force immediately prior to the
expiration of said term for a further term of one (1) year and so on from year
to year unless or until terminated by either party hereto by giving to the other
at least ninety (90) days written notice of termination prior to the expiration
of the then current term; provided, however, that if Lessor, on or prior to the
last day permitted as aforesaid for giving notice of termination at the end of
the then current term, shall have given Lessee, instead of a termination notice,
a written notice setting forth proposed
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changes to the covenants or conditions of this Lease Agreement, and if Lessee
shall not within ten (10) days from the giving of Lessor's notice, notify Lessor
of Lessee's intention to vacate the Demised Premises at the end of the then
current term, Lessee shall be considered as having accepted the changes and as
electing to continue as Lessee under the terms of this Lease Agreement as
modified by the terms and conditions mentioned in such notice from Lessor, for a
further term as above provided or for such other term as may be stated in
Lessor's notice. Upon receipt of notice of termination as provided above, Lessee
agrees to vacate the Demised Premises no later than the end of the then current
term and expressly waives the benefits of all laws, statutes or ordinances, now
or hereafter enforced, providing for additional notice. Lessee expressly shall
pay to Lessor as liquidated damages an the amount equal to two times the then
applicable monthly installment of Basic Rent, for each month or portion of a
month Lessee retains possession of the Demised Premises beyond the term of this
Lease Agreement.
ARTICLE 14 - COMPLIANCE WITH LAW
14.1 Lessee Compliance. Lessee agrees to comply promptly with all laws
and ordinances and other notices, requirements, orders, regulations and
recommendations (whatever the nature thereof may be) of any and all the Federal,
State, County or Municipal authorities or the Board of Fire Underwriters or any
insurance organizations, association or companies, with respect to the Demised
Premises and any property appurtenant thereto.
ARTICLE 15 - SERVICES
15.1 Utilities. Lessor shall not be required to furnish to Lessee any
utilities or services of any kind. Lessee shall pay all charges for gas,
electricity, water, sewer, light, heat, power, and telephone used or supplied
upon or in connection the Demised Premises and shall indemnify Lessor against
any liability on account thereof. Lessee shall also pay to Lessor, upon demand,
as additional rent hereunder, the cost of any excessive use of utility services
upon the Demised Premises that are not separately metered to the Demised
Premises. Excessive use shall mean the use of utility services from such common
utility service in an amount greater than the average use of the other tenants
of the Property of which the Demised Premises are a part.
ARTICLE 16 - NOTICE OF ACCIDENT, ETC.
16.1 Required Notice. Lessee shall give Lessor prompt written notice of
any accident or breakage or defects in the wires, plumbing or heating, elevators
or other apparatus.
ARTICLE 17 - INDEMNIFICATION; RELEASE OF LESSOR
17.1 Indemnification. Lessee will protect, indemnify, and save harmless
Lessor and Lessor's agents (and Lessor's beneficiary or beneficiaries if Lessor
is a trustee) from and against all liabilities, obligations, claims, damages,
penalties, causes of action, costs,
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and expenses (including, without limitation, reasonable attorney fees and
expenses) imposed upon or incurred by or asserted against Lessor by reason of
any of the following:
(a) Any accident, injury to, or death of persons or loss of or
damage to property occurring on the Demised Premises;
(b) Any failure on the part of Lessee to perform or comply with
any of the terms of this Lease; or
(c) Performance of any labor or services or the furnishing of any
materials or other property in respect of the Demised Premises or any part
thereof.
In case any action, suit or proceeding is brought against Lessor and/or Lessor's
agents (and/or Lessor's beneficiary or beneficiaries if Lessor is a trustee) by
reason of any such occurrence, Lessee will, at Lessee's expense, resist and
defend such action, suit, or proceeding, or cause the same to be resisted and
defended by counsel approved by Lessor.
17.2 Liability of Lessor. Lessor shall not be held responsible for, and
is hereby expressly relieved from, any and all liability by reason of any
injury, loss or damage to any person or property in the Demised Premises or the
building whether the same be due to fire, breakage, leakage, water flow, steam,
gas, use, misuse, abuse of elevators or defects therein, hatches, openings,
defective construction or condition anywhere in the building, failure of water
supply, or light or power defects in electric wiring, plumbing or other
equipment or mechanism, wind, lighting storm or any other cause whatever whether
the loss, injury or damage be to the person or property of Lessee or any other
person, and whether or not due to any oversight, neglect or negligence of
Lessor, occurring before or after the execution of this Lease Agreement,
provided that the same is not occasioned by the gross negligence of willful
misconduct of Lessor. Lessee further agrees to indemnify, defend and save Lessor
harmless from and against all claims by any employee or invitee of Lessee made
on account of such injury, loss or damage, including but not limited to
reasonable attorney's fees and other legal expenses.
ARTICLE 18 - REMEDIES LESSOR
18.1 Defaults; Remedies. If Lessee does any of the following, which
shall constitute an event of default under this Lease Agreement:
(a) Shall be in default in the payment of any installment of rent
for a period of ten (10) days and the Lessor has provided to Lessee by
telephone, with written confirmation thereof, at least forty-eight (48) hours
notice that its payment has not been received, and if Lessee does not make
prompt and complete payments as are required, upon receipt of such notice; or
(b) Defaults in any of the covenants or conditions herein
contained for ten (10) days following written notice to the Lessee of the
default/ and if Lessee does not
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remedy the default within thirty (30) days of notification of such default or
diligently pursue remedy of the default; or
(c) Abandons the Demised Premises or removes or attempts to
remove Lessee's goods or property therefrom other than in the ordinary course of
business without having first paid to Lessor in full all rent and charges that
may have become due as well as all which will become due thereafter; or
(d) Becomes insolvent in any sense or makes an assignment for the
benefit of creditors or offers a composition or settlement to creditors or calls
a meeting of creditors for any such purpose, or if a petition in bankruptcy or
for reorganization or for an arrangement with creditors under any Federal or
State act is filed by or against Lessee, or if a xxxx in equity or other
proceeding is filed by any court for the appointment of a receiver, trustee,
liquidator, custodian, conservator or similar official for any of Lessee's
assets, or if any of the real or personal property of Lessee shall be levied
upon by any sheriff, marshal, or constable, provided that any such proceeding
shall not have been dismissed within sixty days (60) after the commencement of
any such actions;
then, and in any such event, at the sole option of Lessor;
(1) The whole balance of rent and charges, whether or not payable as
rent, for the entire balance of the term herein reserved and any renewal or
extension thereof, or any part of such rent and charges, and also all or any
costs and sheriff's, xxxxxxxx'x or constable's commissions, whether chargeable
to Lessor or Lessee, including watchman's wages, shall be taken to be due and
payable and in arrears as if by the terms of this Lease Agreement said balance
of rent and such other charges and expenses were on that day payable in advance;
and/or
(2) The term created by this Lease Agreement shall terminate and become
absolutely void, without notice and without any right on the part of Lessee to
save the forfeiture by payment of any sum due or by other performance of any
condition, term or covenant broken, and upon such termination, or, also if there
be no termination, Lessor may, without notice or demand, enter the Demised
Premises breaking open locked doors, if necessary, to effect entrance, without
liability for damages for such entry or for the manner thereof, for the purpose
of distraint or execution or to take possession of the Demised Premises to
minimize the loss by reason of Lessee's default, and to take possession of and
sell under distraint the goods or chattels found upon said premises (subject
only to any written waiver executed by Lessor in accordance with Section 27.6
hereof). Whether or not any rent be due or unpaid, should Lessee at any time
remove, or attempt or indicate an intention to remove, the goods or chattels
from the premises other than in the ordinary course of business, Lessee
authorizes Lessor to follow the same for a period of ninety days after such
removal or attempted or intended removal and to take possession of and cause to
be sold sufficient of such goods and chattels to meet the rent and charges in
arrears, as well as payable for the balance of the full term then remaining or
any part thereof; and in addition to the above remedies or in connection
therewith,
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18.2 Mitigation. After reentry or retaking or recovering of the Demised
Premises, whether by way of termination of this Lease Agreement or not, Lessor
may lease the Demised Premises or any part or parts thereof to such person or
persons upon such terms as may in Lessor's discretion seem best for a term
within or beyond the term of this Lease Agreement, and Lessee shall be liable
for any loss of rent for the balance of the term plus the costs and expenses of
reletting and balance of the term plus the costs and expenses of reletting and
of making repairs and alterations to the Demised Premises. Further, Lessee, for
itself and its successors and assigns, hereby irrevocably constitutes and
appoints Lessor as Lessee's agent to collect the rents due and to become due
from all subleases and apply the same to the rent due hereunder without in any
way affecting Lessee's obligation to pay any unpaid balance of rent due or to
become due hereunder.
ARTICLE 19 - REMEDIES CUMULATIVE
19.1 Remedies Cumulative and Concurrent. All remedies available to
Lessor hereunder and at law and in equity shall be cumulative and concurrent. No
determination of this Lease Agreement nor taking or recovering possession of the
Demised Premises shall deprive Lessor of any remedies or actions against Lessee
for rent, for charges or for damages for the breach of any covenant or condition
herein contained, nor shall the bringing of any such action for rent, charges or
breach of covenant or condition, nor the resort to any other remedy or right for
the recovery of rent, charges or demands for such breach be construed as a
waiver of release of the right to insist upon the forfeiture and to obtain
possession. No reentering or taking possession of the Demised Premises, or
making of repairs, alterations or improvements thereto, or reletting thereof,
shall be construed as an election on the part of Lessor to terminate this Lease
Agreement unless written notice of such intention be given by Lessor to Lessee.
The failure of Lessor to insist upon strict and/or prompt performance of the
term, agreements, covenants and conditions of this Lease Agreement or any of
them, and/or the acceptance of such performance thereafter shall not constitute
or be construed as a waiver of Lessor's right to thereafter enforce the same
strictly according to the tenor thereof in the event of a continuing or
subsequent default.
ARTICLE 20 - INABILITY OF LESSOR TO DELIVER POSSESSION
20.1 Lessor Liability. Lessor shall not under any circumstances be
liable to Lessee for its inability to deliver possession of the Demised Premises
to Lessee as of the Commencement Date by reason of (a) the retention of the
Demised Premises or any part thereof by any other person; (b) the fact that the
renovation of any buildings included in the Demised Premises is not complete and
ready for occupancy; or (c) any cause beyond Lessor's immediate control.
ARTICLE 21 - LEASE SUBORDINATED
21.1 Mortgage or Deed of Trust. The rights and interest of Lessee under
this Lease shall be subject and subordinate to any mortgage or trust deed that
may be placed
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upon the Demised Premises and to any and all advances to be made thereunder, and
to the interest thereon, and all renewals, replacements, and extensions thereof,
if the mortgagee or trustee named in said mortgages or trust deeds shall elect
to subject and subordinate the rights and interest of Lessee under this Lease
Agreement to the lien of his mortgage or deed of trust and shall agree to
recognize this Lease Agreement of Lessee in the event of foreclosure if Lessee
is not in default. Any mortgagee or trustee may elect to give the rights and
interest of Lessee under this Lease priority over the lien of its mortgage or
deed of trust. In the event of either such election and upon notification by
such mortgagee or trustee to Lessee to that effect, the rights and interest of
Lessee under this Lease shall be deemed to be subordinate to, or to have
priority over, as the case may be, the lien of the mortgage or trust deed,
whether this Lease Agreement is dated prior to or subsequent to the date of the
mortgage or trust deed. Lessee shall execute and deliver whatever instruments
may be required for such purposes, and in the event Lessee fails so to do within
ten (10) days after demand in writing, Lessee does hereby make, constitute and
irrevocably appoint Lessor as his attorney in fact and in his name, place, and
xxxxx so to do. Provided that the same shall not adversely affect Lessor's
ability to obtain financing from a lender of its choice under terms and
conditions acceptable to Lessor, Lessor shall request any lender becoming a
mortgagee of the Property to enter into a non-disturbance and attornment
agreement containing substantially the terms and conditions set forth in Exhibit
_____ hereto.
ARTICLE 22 - LIENS AND ENCUMBRANCES
22.1 Encumbering Title. Lessee shall not do any act that shall in any
way encumber the title of Lessor in and to the Demised Premises, nor shall the
interest or estate of Lessor in the Demised Premises be in any way subject to
any claim by way of lien or encumbrance, whether by operation of law or by
virtue of any express or implied contract by Lessee. Any claim to, or lien upon,
the, Demised Premises arising from any act or omission of Lessee shall accrue
only against the leasehold estate of Lessee and shall be subject to and
subordinate to the paramount title and rights of Lessor in and to the Demised
Premises.
22.2 Liens and Rights to Contest. Lessee shall not permit the Demised
Premises to become subject to any mechanic's, laborer's, or materialman's lien
on account of labor or material furnished to Lessee or claimed to have been
furnished to Lessee in connection with work of any character performed or
claimed to have been performed on the Demised Premises by, or at the direction
or sufferance of, Lessee, provided that Lessee shall have the right to contest
in good faith and with reasonable diligence the validity of any such lien or
claimed lien if Lessee shall give to Lessor such security as may be deemed
satisfactory to Lessor to insure payment thereof and to prevent any sale,
foreclosure, or forfeiture of the Demised Premises b,( reason of nonpayment
thereof, and provided further that, on final determination of the lien or claim
for lien, Lessee shall immediately pay any judgment rendered, with all proper
costs and charges, and shall have the lien released and any judgment satisfied.
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ARTICLE 23 - CONDEMNATION
23.1 Whole or Partial Taking. In the event that any of the buildings
included in the Demised Premises or any part thereof is taken or condemned for a
public or quasi-public use, this Lease Agreement shall terminate as of the date
when possession is surrendered to the condemnor, and the rent reserved hereunder
shall xxxxx and cease proportionately for the balance of the term hereof. In any
such event, Lessee waives all claims for leasehold damages against Lessor and
against the condemning authority or party and assigns the same, if any, to
Lessor.
ARTICLE 24 - LESSEE'S OPTION TO PURCHASE PROPERTY
24.1 Option Period; Purchase Price. Lessee shall have the right and
option, during the period beginning January 1, 2003 and ending January 5, 2004,
to purchase the Property for the purchase price calculated, as follows:
Purchase price = $4,000,000 x [Index for December, 2002 / Base Year Index].
For purposes of this Option, for any given calendar year, the term "Index" shall
mean the All Items Figure of the Consumer Price Index for All Urban Consumers,
as published by the Bureau of Labor Statistics of the United States Department
of Labor; provided, however, that, in the event that the Bureau of Labor
Statistics or its successor discontinues publication of such index, then a
comparable index shall be selected by Lessor exercising reasonable business
judgment. And, the term "Base Year Index" shall mean the Index for the calendar
month in which the Commencement Date occurs. Real estate taxes, insurance, and
any other prepaid or accrued charges customarily prorated shall be prorated as
of the date of transfer according to the applicable fiscal year.
24.2 Notice Period; required deposit. Lessee may exercise this option
by giving written notice to Lessor at any time during the period beginning
January 1, 2003 and ending February 28, 2003.
23.3 Settlement; Title. If Lessee shall exercise this option,
settlement shall occur no later than January 5, 2004 at which time Lessor, as
against receipt of said purchase price, shall give Lessee a good, clear, and
marketable title to the Property, free and clear of all liens, encumbrances,
encroachments, restrictions, reservations, conditions of record, and easements,
except then existing leases, usual and customary easements such as utility
services, taxes due but not yet payable, and zoning ordinances, if any. Transfer
of the Property shall be made by special warranty deed conveying title therein
to Lessee, in fee simple. If there is any lien or encumbrance of record against
the Property, Lessee may elect to take the Property subject to any such lien or
encumbrance.
24.4 Change in Commencement Date. If for any reason Lessor cannot
deliver possession of the Demised Premises to Lessee on or before the
Commencement Date, the dates set forth in this Article shall be reset so that
each date is moved forward in time by
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the number of days which passed between the Commencement Date and the date upon
which Lessor delivered possession to Lessee.
ARTICLE 25 - ENVIRONMENTAL COMPLIANCE
25.1 Definitions.
(a) As used herein, the term "Environmental Laws" means any and
all federal, state or local laws, statutes, rules, regulations, ordinances,
interstate compacts, or judicial or administrative decrees, orders, decisions or
permits relating to emissions, discharges, releases or threatened releases of
pollutants, contaminants or Hazardous Substances into the environment (including
ambient air, surface water, ground water or subsurface strata), or otherwise
relating to the use, storage, treatment, transportation, manufacture,
refinement, handling, production or disposal of such pollutants, contaminants or
any Hazardous Substances, including the following statutes, as amended and
judicially and administratively interpreted, and all regulations promulgated
thereunder, including all comparable statutes, regulations and interpretations
by the Commonwealth of Pennsylvania: Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C ss.ss.9601 et seq.
("CERCLA"); Federal Water Pollution Control Act, 42 U.S.C xx.xx. 1251 et seq.;
Clean Air Act, 42 U.S.C xx.xx. 7401 et seq.; Resource Conservation and Recovery
Act, 42 U.S.C xx.xx. 4901 et seq.; Safe Drinking Water Act, 42 U.S.C xx.xx. 300f
et seq.; Toxic Substance Control Act, 15 U.S.C xx.xx. 2601 et seq.; Clean Water
Act, 33 U.S.C. ss. 1251 et seq.; National Environmental Policy Act 42 U.S.C. ss.
4321 et seq.; Hazardous Substances Cleanup Act, 35 Pa. C.S.A. ss. 6020.101 et
seq. ("HSCA"); Clean Streams Law, 35 Pa. C.S.A. ss.691.1 et seq.; Solid Waste
Management Act, 35 Pa. C.S.A. ss. 6018.101 et seq.; Pennsylvania Storage Tank
and Spill Prevention Act, Pa. Act No. 1989-32; and Pennsylvania Air Pollution
Control Act, 35 Pa. C.S.A. xx.xx. 4001 et seq.
(b) As used herein, the term "Hazardous Substances" means any and
all elements, compounds, chemical mixtures, contaminants, pollutants or other
substances identified as "hazardous substances" under CERCLA or HSCA or any
comparable statutes and regulations of the Commonwealth of Pennsylvania, or any
petroleum or petroleum products, or asbestos.
(c) As used herein, the term "release" means any spilling,
leaking, pumping, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, discarding, burying, abandoning or disposing into the
environment at or about the Property on or prior to the termination or
expiration of this Lease.
25.2 Lessee's Obligations. Lessee shall:
(a) not cause or permit any Hazardous Substances to be placed,
held, located, released, spilled, transported or disposed of on, under, at or
from the Demised Premises, or any real estate contiguous thereto, in
contravention of any Environmental Law;
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(b) if Lessee violates clause (a) of this paragraph (2), at
Lessee's sole cost and expense, contain at or remove from the Property or
perform any other remedial action regarding any Hazardous Substance, at Lessee's
sole cost and expense, whether or not such containment, removal or other
remedial action is required under any Environmental Law (such containment,
removal or other remedial action to occur as and when required by Environmental
Law or upon termination or expiration of this Lease, whichever first occurs)
and, whether or not so required, perform any containment, removal or remediation
of any kind of any Hazardous Substance in compliance with all requirements of
law;
(c) not permit any subtenant or occupant of the Demised Premises
to engage in any activity that could result in any liability, cost or expense to
any such subtenant or occupant, or to Lessee, Lessor or any other owner of the
Property or any portion thereof or the creation of a lien on the Property under
any Environmental Law or under any similar applicable law or regulation;
(d) provide Lessor with written notice (and a copy as may be
applicable) of any of the following within 10 days thereof: (i) Lessee's
obtaining knowledge or notice of any kind of the presence, or any actual or
threatened release, of any Hazardous Substance on, under, at or from the
Property not authorized or permitted under Environmental Laws; (ii) Lessee's
receipt or submission, or Lessee's obtaining knowledge or notice of any kind, of
any report, citation, notice or other communication from or to any federal,
state or local governmental or quasi-governmental authority regarding any
Hazardous Substance in any way materially adversely affecting the Property; or
(iii) Lessee's obtaining knowledge or notice of any kind of the incurrence of
any cost or expense by any federal, state or local government or
quasi-governmental authority or any private party in connection with the
assessment, monitoring, containment, removal or mediation of any kind of any
Hazardous Substance on, under, at or from the Property, or of the recording of
any lien on the Property in connection with any such action or Hazardous
Substance on, under or at the Property; and
(e) defend all actions arising out of Lessee's occupancy of the
Demised Premises during the Term against Lessor and pay, protect, indemnify and
save harmless Lessor from and against any and all liabilities, losses, damages,
costs, expenses (including reasonable attorneys' fees and expenses), causes of
action, suits, claims, demands or judgments of any nature arising from Lessee's
failure to comply with this section. The indemnity contained in this section
shall survive the expiration or earlier termination of this Lease with respect
to the obligations and liabilities of Lessee hereunder, actual or contingent,
which have arisen on or prior to such expiration or earlier termination.
ARTICLE 26 - CONFESSION OF JUDGMENT
26.1 Money Judgment. For value received and upon the occurrence of an
event of default hereunder, lessee does hereby empower any attorney of any court
of record within the commonwealth of Pennsylvania, to appear for lessee and,
with or without complaint filed, confess judgment against lessee and in favor of
lessor, its successors or
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assigns, in the commonwealth of Pennsylvania, for the sum due by reason of said
default in the payment of rent and other sums, including accelerated rent, and
for the sum due by reason of any breach of covenant or condition broken by
lessee, with costs of suit and attorney's commission of 10 percent for
collection, and forthwith issue a writ or writs of execution thereon with
release of all errors and without stay of execution. Such authority shall not be
exhausted by one exercise thereof, but judgment may be confessed from time to
time as often as any rent in arrears or rent treated as if in arrears or charges
fall due and are not paid. Such powers may be exercised during as well as after
the expiration or termination of the original term and during and at any time
after any extension or renewal of the term.
26.2 Judgment in Ejectment. For value received and upon the occurrence
of an event of default hereunder, or upon expiration or earlier termination of
the term of this lease and the failure of lessee to deliver possession to
lessor, lessee further authorizes and empowers any such attorney (either in
addition to or without such judgment for the amount due according to the terms
of this lease) to appear for lessee and any other person claiming under, by or
through lessee, and confess judgment forthwith against lessee and such other
persons and in favor of lessor in an amicable action of ejectment for the
premises filed in the Commonwealth of Pennsylvania, with release of all errors.
Lessor may forthwith issue a writ or writs of execution for possession of the
premises and at lessor's option, for the amount of any judgment, and all costs,
without lease of court, and lessor may, by legal process, without notice reenter
and expel lessee from the premises, and also any persons holding under lessee.
ARTICLE 27 - MISCELLANEOUS
27.1 Zoning. Anything herein contained to the contrary notwithstanding,
this Lease Agreement and all the terms, covenants and conditions hereof are in
all respects subject and subordinate to all zoning laws and ordinances affecting
the Demised Premises and/or the building and Lessee agrees to be bound by the
game. Further, Lessee does not agree or represent that any licenses or permits
which may be required for the business to be carried on by Lessee in the Demised
Premises will be granted, or if granted will be continued in effect or renewed.
Any failure to obtain such licenses or permits, or any revocation thereof, or
failure to continue or renew the same, shall not release Lessee from any
obligations of this Lease Agreement or reduce the save, and nothing shall
obligate Lessor to assist in obtaining any such permit or license.
27.2 Brokers. The parties represent and warrant that this Lease
Agreement was negotiated directly and not through or with any broker or other
intermediary purporting to act either for either party. The parties agree to
indemnify, protect, defend and save each other harmless from and against any and
all claims, costs, damages or expenses to which each may be subjected as the
result of any broker or other intermediary claiming to have negotiated or
brought about this Lease Agreement.
27.3 Conveyance by Lessor. Lessee agrees that on the occasion of each
sale or exchange of Lessor's estate in the building, Lessee will look to each
respective succeeding
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grantee or assignee for the performance of the obligations of Lessor hereunder.
Lessee further agrees that each respective grantor and assignor so selling or
exchanging shall be and is hereby released and discharged from any and all
liability and obligation under this Lease Agreement as Lessor or otherwise,
except liabilities in respect to the period up to the date of such sale or
exchange. Lessee further agrees that Lessor's liability under this Lease
Agreement shall be limited to and include only the interests of Lessor in the
building of which the Demised Premises are a part.
27.4 Notices. All notices required to be given under this Lease
Agreement shall be given by registered mail, sent to the place specified below.
LESSOR:
Xxxxxxx X. Xxxxxxx
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
LESSEE:
Blue Fish Clothing, Inc.
No. 0 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
As against Lessor the only admissible evidence that notice has been given shall
be a registered return receipt signed by Lessor.
27.5 Successors and Assigns. All rights and liabilities herein given
to, or imposed upon, the respective parties hereto shall extend to and bind the
several and respective heirs, executors, administrators, successors and assigns
of said parties; and if there shall be more than one Lessee, they shall be bound
jointly and severally by the terms, covenants and agreements herein, and the
word "Lessee" shall be deemed and taken to mean each and every person or party
mentioned as a Lessee herein, be the same one or more; and if there shall be
more than one Lessee, any notice required or permitted by the terms of this
Lease Agreement may be given by or to any one thereof, and shall have the same
force and effect as if given by or to all thereof. No rights, however, shall
inure to the benefit of any assignee of Lessee unless the assignment to such
assignee has been approved by Lessor in writing as aforesaid.
27.6 Lessor's Waiver. Lessor shall, upon written request from Lessee,
execute a waiver of its right to distrain upon or secure a lien against any
equipment, machinery or other personal property acquired or leased by Lessee, if
such property becomes subject to a perfected security interest by any lending
institution or equipment lessor. Lessee shall, in its written request for this
waiver, specifically enumerate the equipment, machinery or other personal
property for which the waiver is requested as well as the length of time for
which the perfected security interest shall be in full force and effect.
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27.7 Estoppel Certificate. Lessee shall, upon demand from Lessor,
execute and deliver to Lessor an Estoppel Certificate in such form and content
as requested by Lessor, attesting to the compliance to date of Lessor with the
terms and conditions of this Lease Agreement and such other matters as requested
by Lessor concerning the tenancy of Lessee hereunder. In the event that Lessee
asserts any default by Lessor that would prevent Lessee from attesting to such a
certificate, Lessee shall set forth such alleged default or defaults in the
certificate in detail and attest to the fact that those listed defaults are the
only defaults by Lessor hereunder.
27.8 Headings. The headings appearing in connection with various
sections herein are for convenience only. They are not intended to indicate all
of the subject matter in the text and they are not to be used in interpreting
this Lease Agreement nor for any other purpose in the event of any controversy.
27.9 Whole Agreement. It is expressly understood and agreed by and
between all the parties hereto that this Lease Agreement and the riders attached
hereto and forming a part hereof set forth all the promises, agreements,
conditions, warranties, representations and understandings between Lessor and
Lessee relative to the Demised Premises and this leasehold, and that there are
no promises, agreements, conditions, warranties, representations on
understandings, either oral or written, between them other than as herein set
forth. It is further understood and agreed that, except as herein otherwise
provided, no subsequent alteration, amendment, understanding or addition to this
Lease Agreement shall be binding upon Lessor or Lessee unless reduced to writing
and signed by them.
IN WITNESS WHEREOF, the parties hereto have executed this Lease
Agreement the day and year aforesaid.
LESSOR: LESSEE:
Xxxxxxx X. Xxxxxxx Blue Fish Clothing, Inc.
By: By:
--------------------- ---------------------
(Name/Title) (Name/Title)
By: By:
--------------------- ---------------------
(Name/Title) (Name/Title)
WITNESS ATTEST
------------------------ ---------------------
(Name/title) (Name/Title)
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