EXHIBIT 10.8
COMMERCIAL LEASE AGREEMENT
Intending to be legally bound, this Agreement made the 22 day of July,
1998, by and between RB ASSOCIATES, a Pennsylvania Partnership, of Two Xxxxxxxx
Place, Suite 140, 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000
(hereinafter called "LANDLORD") with YOU TOOLS CORPORATION, D/B/A FASTNET a
Corporation with offices at Two Courtney Place, Suite 130, 0000 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxx 00000 (hereinafter called "TENANT").
1. TERM, MINIMUM RENTAL. It is expected that the Improvements provided
in paragraph 32 of this Lease will take no more than six (6) weeks to complete.
Landlord will make every reasonable effort to complete the Improvements within
this six (6) week time period. If there are necessary delays beyond the control
of Landlord so that additional time is required to complete the Improvements
(such as a contractor not finishing its work within this six (6) week time
period), then Landlord shall exercise all possible reasonable diligence so as to
complete the Improvements as soon as possible. Rent nor the term of this
Agreement shall commence until all Improvements are completed to the reasonable
satisfaction of Landlord and Tenant or Tenant occupies the space and commences
business operations pursuant to this paragraph 1 of this Lease.
Landlord hereby demises and lets unto Tenant all that certain office
space comprised of approximately 11,055 square feet on the first floor of the
building known as Xxxxxxxx XX, Suite 130, 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxx 00000 to be used and occupied only as lawful and proper office,
computer center and warehousing space for Tenant's business for the term of
seven (7) years to commence at the conclusion of the construction of the
Improvements and terminating on the thirty-first (31st) day of August, 2005 as
follows:
(A) Tenant shall pay rent on the basis of [*] Dollars per square
foot for a base rent for the first year of occupancy payable in equal monthly
payments of [*] Dollars with the first rent payable on execution of this
lease, for the month beginning at the conclusion of the construction of the
Improvements with the first month's rent prorated based on Tenant's occupancy
date and monthly thereafter on the first (1st) day of each month until August
31, 1999; and
(B) Tenant's second year of occupancy shall commence at the rate of
[*] Dollars per square foot for a base rent for the second year of occupancy
in the amount of [*] Dollars payable in twelve (12) equal monthly payments of
[*] Dollars with the first rent of the second year of the term commencing and
payable on September 1, 1999; and
[*] We are seeking confidential treatment of these terms, which have been
omitted. The confidential portion has been filed separately with the
Securities and Exchange Commission.
(C) Tenant's third year of occupancy shall commence at the rate of
[*] Dollars per square foot for a base rent for the third year of occupancy
in the amount of [*] Dollars payable in twelve (12) equal monthly payments of
[*] Dollars with the first rent of the third year of the term commencing and
payable on September 1, 2000; and
(D) Tenant's fourth year of occupancy shall commence at the rate of
[*] Dollars per square foot for a base rent for the fourth year of occupancy
in the amount of [*] Dollars payable in twelve (12) equal monthly payments of
[*] Dollars with the first rent of the fourth year of the term commencing and
payable on September 1, 2001; and
(E) Tenant's fifth year of occupancy shall commence at the rate of
[*] Dollars per square foot for a base rent for the fifth year of occupancy
in the amount of [*] Dollars payable in twelve (12) equal monthly payments of
[*] Dollars with the first rent of the fifth year of the term commencing and
payable on September 1, 2002; and
(F) The base rent for the Tenant's sixth and seventh years of
occupancy shall be the same as the base rent for the Tenant's fifth year of
occupancy.
All rental payments shall be payable at the offices of Landlord as specified in
this Lease, or as may be designated in writing by the Landlord. The rent for the
first month of this Lease shall be tendered upon the signing of this Lease.
Tenant is also responsible for any other obligation that is expressly provided
for under this Lease.
2. LICENSES, PERMITS, ETC. Tenant shall be solely responsible for
obtaining all licenses or permits, which may be required by any governmental
agency or authority in order for Tenant to lawfully conduct its business, which
Tenant shall obtain at its sole cost and expense; however, Landlord shall obtain
any and all Certificates of Occupancy required by the Municipality for Tenant to
occupy the demised Premises. Landlord will cooperate with Tenant in obtaining
these approvals. Landlord has no knowledge of any conditions relating to the
leased space which would prevent Tenant from obtaining any and all required
approvals for its business.
3. INABILITY TO GIVE POSSESSION. If Landlord is unable to give Tenant
possession of the demised premises as herein provided, by reason of the holding
over of a previous occupant or by any other necessary cause beyond the
reasonable control of Landlord, Landlord shall not be liable in damages to
Tenant therefor, and during the period that Landlord is unable to give
possession, all rights and remedies of both parties hereunder shall be
suspended, and Tenant shall not be liable to Landlord under this Lease for the
period of time that Landlord is unable to give such possession. Tenant may
terminate this Lease at its sole option if possession
[*] We are seeking confidential treatment of these terms, which have been
omitted. The confidential portion has been filed separately with the
Securities and Exchange Commission.
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is delayed beyond September 30, 1998 to causes beyond the reasonable control of
the Landlord which are not the responsibility of the Tenant. With regard to
possession by Tenant and all obligations of Landlord and Tenant hereunder, time
shall be of the essence. Landlord has no knowledge of any facts or conditions
other than construction of the Improvements as provided in this Lease which
would prevent Landlord from giving possession as set forth in this Lease.
4. AFFIRMATIVE COVENANTS OF TENANT. Tenant covenants and agrees that
it will without demand:
(A) Pay the rent and all other charges herein reserved as rent on the
days and times that the same are made payable without fail, and without setoff,
deduction or counter-claim. Tenant shall pay a late charge at the rate of five
(5%) percent on each dollar of rent, or any other sum collectible as rent under
this lease, not paid within fifteen (15) days after the same is due. If Landlord
shall at any time or times accept said rent or rent charges after the same shall
have become due and payable, such acceptance shall not excuse delay upon
subsequent occasions, or constitute, or be construed as a waiver of any of the
Landlord's rights. Tenant agrees that any charge or payment herein reserved,
included or agreed to be treated or collected as rent may be proceeded for and
recovered by landlord in the same manner as rent due and in arrears.
(B) Comply with all requirements of any of the constituted public
authorities, and with the terms of any State or Federal statute or local
ordinance or regulation applicable to Tenant on its use of the demised premises,
and save Landlord harmless from all penalties, fines, costs or damages resulting
from Tenant's failure to do so.
(C) Comply with the reasonable rules and regulations from time to time
made and uniformly enforced by Landlord for the safety, care, upkeep and
cleanliness of the demised premises and the building and appurtenances of which
it is a part. Tenant agrees that such rules and regulations shall, when written
notice thereof is given to Tenant, form a part of this lease.
(D) Keep the demised premises in good order and condition, ordinary
wear and tear excepted and damage by accidental fire or other casualty, alone
excepted, and upon termination of this lease to deliver up to Landlord the
demised premises in the same condition as Tenant has herein agreed to keep them.
(E) Give to Landlord prompt written notice of any accident, fire or
damage occurring on or to the demised premises within twenty-four (24) hours of
occurrence thereof or when Tenant reasonably learns of same.
(F) Peaceably deliver up and surrender possession of the demised
premises to Landlord at the expiration or sooner termination of this lease and
promptly deliver to Landlord at its office all keys for the demised premises.
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(G) Park its cars and cause its employees to park their cars only in
those portions of the parking area as may be designated for that purpose by
Landlord.
5. OCCUPANCY AND ASSIGNMENT. Tenant shall not occupy or permit to be
occupied the demised premises or any part thereof, other than as hereinbefore
specified, nor shall Tenant assign, mortgage or pledge this lease, or underlet
or sublet the demised premises, or any part thereof, without the written consent
of the Landlord, provided, however, that Landlord's consent shall not be
unreasonably withheld for Tenant to sublet to a similar use tenant, providing
such subtenant and/or assignee shall be financially responsible as determined
according to the reasonable satisfaction of the Landlord, regardless of to whom
it may be that Tenant desires to assign this Lease and even if that assignee may
be the Tenant's subsidiary, parent company or related entity. It is specifically
agreed, however, that Tenant may freely assign this Lease to any subsidiary,
parent company or related entity providing the remaining provisions of this
paragraph are adhered to. In any event, Tenant shall remain obligated for
performance of all of the terms and conditions of this Lease regardless of to
whom this Lease is assigned or whomever becomes a subtenant or sublessee.
6. NEGATIVE COVENANTS OF TENANT. Tenant covenants and agrees that it
will do none of the following without the consent of the Landlord:
(A) Place or allow to be placed upon the demised premises or on the
inside or outside of the building of which the demised premises are a part any
sign, projection or devise. In case of the breach of this covenant (in addition
to all other remedies given to Landlord hereunder) Landlord shall have the right
of removing such sign, projection or device and restoring the premises to their
former condition and Tenant shall be liable to Landlord for any and all expenses
including costs and reasonable attorney's fees so incurred by Landlord which at
the option of Landlord may be recovered in the same manner as rent.
(B) Make any alterations, improvements, or additions to the demised
premises without the Landlord's consent, which will not be unreasonably
withheld. Specifically, Landlord understands that there will be additions to the
demised premises upon Tenant's occupancy, but wants to know what these will be
as they are being made. Any and all alterations, improvements, additions or
fixtures installed before or during the term of this Lease, shall become and
remain the property of the Landlord if they become fixtures.
(C) Use, operate or maintain any machinery, equipment or fixture that,
in Landlord's reasonable opinion, is harmful to the building and appurtenances
of which the demised premises is a part or is unreasonably disturbing to the
other tenants occupying any other part thereof excepting that equipment
necessary for Tenant's normal business; however, in no event shall Tenant's
activities cause noxious fumes or unreasonable interference with adjoining
tenants. Similarly, Landlord covenants that to the extent Landlord is able to do
so, Landlord shall not allow any other tenants to interfere with Tenant's
business activities within the space leased pursuant to this Commercial Lease
Agreement.
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(D) Place any weights in any portion of the demised premises beyond
the safe carrying capacity of the building of which the demised premises is a
part.
(E) Tenant agrees not to do anything that causes the Landlord's fire
or other insurance on the demised premises or on the building of which the
demised premises is a part, to become void or suspended or to be rated as a more
hazardous risk than at the date of the execution of this Lease so that the cost
of this insurance to the Landlord increases. In case of a breach of this
covenant (in addition to all other remedies herein given to Landlord) Tenant
agrees to pay Landlord as additional rent any and all increase or increases of
premiums on insurance reasonably carried by Landlord on the demised premises, or
on the building and appurtenant land of which the demised premises may be a
part, caused in any way by the occupancy of Tenant.
(F) Remove or attempt to remove Tenant's or Sublessee's goods or
property from or out of the demised premises otherwise than in the ordinary and
usual course of business, or to sublease without having first paid and satisfied
Landlord for all rent, costs and attorney's fees which may become due during the
entire term of this lease.
(G) The Tenant shall not permit the demised premises to be used or
occupied in a congested manner. The number of people that shall use or occupy
the demised premises shall be reasonable for the size of the demised premises
taking into consideration the safety of the occupants, the burden that an
unreasonable number of occupants will place upon the electricity, heating and
air conditioning equipment, the congestion that would result in the common
facilities of said building and its appurtenances such as hallways, washrooms,
parking lot, etc. "Reasonable" herein shall be defined by reference to
applicable Zoning, Building Code and Safety Rules and Regulations. If the
demised premises are being used or occupied by more people than approved at
Lease start, based on approved floor plan, Tenant agrees to reduce the number
thereof upon written demand of Landlord to the number that is determined to be
reasonable for the demised premises.
7. LANDLORD'S RIGHT TO ENTER. Provided Landlord has given Tenant
twelve (12) hours advance written notice, Tenant shall permit Landlord,
Landlord's agents, cleaners, or employees or any other person or persons
authorized by Landlord, to inspect the demised premises during normal business
hours with prior notice and to enter the demised premises for the purposes of
cleaning and if Landlord shall so elect, for making reasonable alterations,
improvements or repairs to the building of which the demised premises are a
part, or for any reasonable purpose in connection with the operation and
maintenance of the building, except in case of emergency, the Landlord may enter
at any time. In any inspection hereunder, Landlord will take all reasonable
steps and measures possible so as not to interfere with Tenant's business
operation.
8. RELEASE OF LANDLORD. If there is any injury, loss, or damage to any
person or property in the demised premises which results from the Tenant's
negligence or any act of any guest or business invitee of the Tenant, except for
gross negligence occasioned by the Landlord, Tenant shall be responsible for,
shall indemnify and hold harmless and hereby
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relieves Landlord from, any and all liability by reason of any injury, loss,
damage to any person or property in the demised premises, whether the same be
due to fire, breakage, leakage, water flow, gas, use, misuse, or defects
therein, or condition anywhere in the demised premises, failure of water supply
or light or power or electricity, wind, lightning, storm, or any other cause
whatsoever, whether the loss, injury or damage be to the person or property of
Tenant or any other persons.
9. FIRE OR OTHER CASUALTY.
(A) If during the term of this lease or any renewal or extension
thereof, the demised premises of the building of which the demised premises is a
part is totally destroyed or is so damaged by fire or other casualty not
occurring through the fault or negligence of Tenant or those employed by or
acting for Tenant (whether or not the demised premises are damaged) that the
same cannot be repaired or restored within one hundred twenty (120) regular
working days from the date of the happening of such damage, or if such damage or
casualty is not included in the risks covered by Landlord's fire insurance with
the usual extended coverage, then this lease shall absolutely cease and
terminate and the rent shall xxxxx for the balance of the term. In such case,
Tenant shall pay the rent apportioned to the date of damage and Landlord may
enter upon and repossess the demised premises without further notice and with
the right to break in and take possession.
(B) If the damage caused as above can be repaired or restored within
one hundred and twenty (120) regular working days and said damage and the cost
of repairs and restoration are fully covered by the Landlord's insurance,
Landlord may exercise the following option:
(1) Landlord shall have the option to restore the premises for
that purpose and the rent shall be apportioned during the time Landlord is in
possession, taking into account the proportion of the demised premises rendered
untenantable and the duration of Landlord's possession; if a dispute arises as
to the amount of rent due under this clause, Tenant agrees to pay the full
amount claimed by Landlord and Tenant shall have the right to proceed by law to
determine the proper payment.
(C) If the damage caused as above is only slight, Landlord shall
repair whatever portion, if any, of the demised premises that may have been
damaged by fire or other casualty insured as aforesaid, and the rent accrued or
accruing shall not be apportioned or suspended, unless the Tenant's business is
interrupted, in which event the rent shall be apportioned or suspended as
appropriate.
(D) If said damage by fire or other casualty was caused by the action
or negligence of Tenant or his agent, employees or invitees, Tenant shall not be
entitled to any abatement or apportionment of the rent.
(E) Tenant, at its own cost and expense covering Tenant's space only
and their equipment, shall obtain during the term of this lease, and any
renewals thereof, fire, vandalism,
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and comprehensive liability insurance in an amount not less than One Million
Dollars ($1,000,000.00). Tenant shall also obtain appropriate business
interruption insurance to cover a situation whereby Tenant is unable to conduct
its business in the premises, or any part thereof, by reason of loss or damage
due to fire or other casualty, whether insured or uninsured. Landlord shall have
the night to request in writing that Tenant provide Landlord with proof of
insurance within five (5) days of said request. Failure to provide proof upon
request may be deemed a default under the terms of this lease.
10. SERVICES. The following services and facilities shall be supplied
by Landlord to Tenant in connection with Tenant's use of the demised premise, in
common with other tenants of the building of which the demised premises are a
part:
(A) Standard heat and air conditioning equipment and facilities (per
Floor Plan Addendum).
(B) Landlord shall supply the demised premises with electric service
for heat, air conditioning, lighting and power to operate business machines and
equipment. Landlord shall furnish and install a meter for measuring Tenant's
electric usage and Tenant shall pay utility company direct for such usage.
Landlord shall, at its expense, repair and maintain standard building equipment
used to furnish power to the demised premises which shall be reimbursed
according to the Operating Expense Addendum attached hereto.
(C) Providing Landlord is not grossly negligent, Landlord shall have
no responsibility or liability to Tenant, nor shall there be any abatement in
the said rent for any failure to supply any of said services and facilities that
Landlord has agreed to supply hereunder during such period as the services and
facilities are out of order, undergoing repair or if prevented by labor
disorders, strikes, accidents or other causes beyond Landlord's control. If
Landlord deems it advisable or convenient to interrupt any of said services in
order to make repairs, alterations or improvements with the agreement of Tenant
except in case of emergency which is not in Landlord's control or because of
labor disturbances, strikes, accidents or causes beyond Landlord's control,
Landlord may do so for the period necessary and required and if so there shall
not be any abatement in rent or other liability to Tenant.
11. REPAIRS. Except for damage or fire occurring independent of Tenant
and not due to Tenant's negligence or cause, Tenant will pay for all repairs
within the space necessary to return the premises to its original condition as
leased, ordinary wear and tear accepted. Tenant shall also remove all dirt,
rubbish, waste and refuse from the demised premises and all its property
therefrom, to the end that Landlord may again have and repossess the demised
premises not later than midnight on the day upon which this lease or any renewal
thereof or extension ends. Tenant shall not knowingly do or commit or suffer or
cause to be done or committed upon the demised premises any act or thing
contrary to the laws, rules, regulations or ordinances prescribed from time to
time by Landlord for the safety, care, upkeep, maintenance and cleanliness of
the demised premises.
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12. ADDITIONAL RENT. Tenant shall pay as rent in addition to the base
rental herein reserved any and all sums which may become due by reason of the
failure of Tenant to comply with any and all covenants of this lease and to pay
any and all damages, costs and expenses, including, but not limited to,
reasonable attorney's fees which Landlord may suffer or incur by reason of any
default or failure on Tenant's part to comply with any and all the covenants of
this lease.
13. LANDLORD'S REMEDIES. If Tenant, after written notice and further
time period for opportunity to cure as provided in paragraph 20 below:
(A) Does not pay in full when due any and all installments of rent
and/or any other charges or payment herein reserved, included, or agreed to be
treated or collected as rent and/or any other charges, expenses, or costs herein
agreed to be paid by the Tenant; or
(B) Violates or fails to perform or otherwise breaks any covenant or
agreement herein contained; or
(C) Vacates the demised premises or removes or attempts to remove or
manifests any intention to remove any goods or property therefrom otherwise than
in the ordinary and usual course of business without having first paid and
satisfied Landlord in full for all rent and other charges, expenses and
reasonable costs and reasonable attorney's fees then due or that may thereafter
become due until the expiration of the term, above mentioned; or
(D) Makes an assignment for the benefit of creditors; or whenever
Tenant seeks or consents to or acquiesces in the appointment of any trustee,
receiver or liquidator of Tenant or of all or any substantial part of its
properties; or whenever a permanent or temporary receiver of Tenant for
substantially all of the assets of Tenant shall be appointed; or an order,
judgment or decree shall be entered by any court of competent jurisdiction on
the application of a creditor.
(1) In addition to any rent and other charges already due and
payable, the rent for the entire unexpired balance of the term of this lease, as
well as all other charges, costs, expenses and attorney's fees herein to be paid
by Tenant or at the option of Landlord or anyone acting on Landlord's behalf at
Landlord's option, or any part thereof, shall be taken to be due and payable and
in arrears, as if by the terms of this lease said rent, charges, costs and
expenses were on that day due and payable; and/or
(2) Landlord, or anyone acting on Landlord's behalf may, without
written notice or demand, enter the demised premises and:
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(a) may remove from the demised premises all goods and
chattels found therein to any other place or location as Landlord may desire and
any costs incurred for said removal and any charges made for storage of said
goods and chattels at the location to which they are removed Tenant agrees to
pay; or
(b) take immediate possession and may lease the demised
premises or any part to such person, company, firm or corporation as may in
Landlord's sole discretion seem best and Tenant shall be liable for any loss of
rent for the then current term.
The Tenant hereby releases and discharges Landlord, and its
agent, from all claims, actions, suits, damages and penalties, for or by reason
or on account of any entry, distraint, levy, appraisement, removal of said goods
and chattels of sale after Tenant has been given notice to cure any default
pursuant to Section Twenty (20) of this Lease.
14. RIGHT OF ASSIGNEE OF LANDLORD. Should the Landlord assign its
interest in this Lease to another person or entity, then the right to enforce
all of the lawful provisions of this lease may be exercised by any assignee of
the Landlord's right, title and interest in this lease in its, his, her or their
own name, and Tenant hereby expressly waives the requirements of any and all
laws regulating the manner and/or form in which such lawful assignments shall be
executed and witnessed.
15. REMEDIES CUMULATIVE. All of the remedies hereinbefore given to
Landlord and all rights and remedies given to Landlord by law and equity shall
be cumulative and concurrent. No determination of this lease or the taking or
recovering of the premises shall deprive Landlord of any of its remedies or
actions against Tenant for any and all sums due at the time or which, under the
terms hereof, would in the future become due, nor shall the bringing of any
action for rent or breach of 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 premises.
16. ATTORNMENT AND NON-DISTURBANCE. In the event of the sale or
assignment of Landlord's interest in the building of which the demised premises
is a part or in the event of exercise of the power of sale under any mortgage
made by Landlord covering the building of which the demised premises is a part,
Tenant shall attorn to the purchaser and recognize such purchaser as Landlord
under this lease, providing the purchaser agrees to a customary and usual
non-disturbance provision.
17. SUBORDINATION, ETC. At the option of Landlord or Landlord's
permanent lender, or both of them, this lease and the Tenant's interest
hereunder shall be subject and subordinate at all times to any mortgage or
mortgages, deed or deeds of trust, or such other security instrument on
instruments, including all renewals, extension, consolidations, assignments and
refinances of the same, as well as all advances made upon the security thereof,
which now or hereafter become liens upon the Landlord's fee and/or leasehold
interest in the demised premises, and/or any and all of the buildings now or
hereafter erected or to be erected and/or any and all of the land comprising the
office building, provided, however, that in each
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such case, the holder of such other security, the trustee of such deed of trust
or holder of such other security instrument shall agree that this lease shall
not be divested or in any way affected by foreclosure or other default
proceedings under said mortgage, deed of trust, or other instrument or other
obligations secured thereby, so long as the Tenant shall not be in default under
the terms of this lease; and Tenant agrees that this lease shall remain in full
force and effect notwithstanding any such default proceedings. Landlord agrees
that a customary and reasonable non-disturbance clause reasonably acceptable to
Tenant and in recordable form shall be included in any and all written
subordination agreements that the Tenant may be requested to sign for the
purpose of any mortgage holder.
18. EXECUTION OF DOCUMENTS. The above subordination shall be self
executing, but Tenant agrees upon demand to execute such other document or
documents as may be required by a mortgagee, trustee under any deed of trust, or
holder of a similar security interest, or any party to the types of documents
enumerated herein for the purpose of subordinating this lease in accordance with
the foregoing, provided such subordination contains a non-disturbance clause
reasonably acceptable to Tenant. Upon the expiration of ten (10) days after a
formal written notice, Tenant shall be deemed to have appointed Landlord and
Landlord may execute and deliver the required document for and on behalf of
Tenant.
19. ESTOPPEL AGREEMENTS. Provided Landlord is not in breach of the
provisions of this Lease, Tenant shall execute an estoppel agreement in favor of
any mortgagee or purchaser of Landlord's interest herein, if requested to do so
by any mortgagee. Such estoppel agreement shall be in the form requested by such
mortgagee or purchaser and reasonably acceptable to Tenant.
20. NOTICE OF OPPORTUNITY TO CURE. Notwithstanding any other provision
of the lease to the contrary, the Landlord and the Tenant agree to send via U.S.
Certified Mail, return receipt requested, to each other written notice of any
violation of this Lease by either party. Should the violation of the Lease be
one that can be cured by the payment of money, such as a failure to pay rent on
a timely basis, then the party which is in default shall pay the amount due
within ten days of the sending of the written notice to the party required to
make the payment, and if such payment is not made within this time period, then
the non-defaulting party shall have all of the rights and remedies as explained
in this Lease and as provided by law. With regard to non-monetary defaults under
the Lease, the same form of written notice shall be given to the defaulting
party with an opportunity to cure the default as quickly as possible but no less
than thirty (30) days. If the default cannot be cured despite all due diligence
having been taken by the defaulting party, then the time to cure the default
will be extended for a reasonable period of time providing the defaulting party
is acting with all due diligence to cure the default; but, in any event, if the
default is not cured within ninety (90) days, the non-defaulting party shall
have all of the rights and remedies as explained in this Lease and as provided
by law.
21. ARBITRATION. Claims, disputes or other matters in question between
the parties to this Agreement arising out of or relating to this Agreement or
breach thereof shall be subject to and decided by arbitration in accordance with
the Arbitration Rules of
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the American Arbitration Association currently in effect through its
Philadelphia, Pennsylvania office unless the parties mutually agree otherwise.
Any arbitration shall take place in Easton, Pennsylvania.
(A) Demand for arbitration shall be filed in writing with the other
party to this Agreement and with the American Arbitration Association. A demand
for arbitration shall be made within a reasonable time after the claim, dispute
or other matter in question has arisen. In no event shall the demand for
arbitration be made after the date when institution of legal or equitable
proceedings based on such claim, dispute or other matter in question would be
barred by the applicable statutes of limitations.
(B) No arbitration arising out of or relating to this Agreement shall
include, by consolidation, joinder or in any other manner, an additional person
or entity not a party to this Agreement, except by written consent containing a
specific reference to this Agreement signed by the Owner. Architect, and any
other person or entity sought to be joined. Consent to arbitration involving an
additional person or entity shall not constitute consent to arbitration of any
claim, dispute or other matter in question not described in the written consent
or with a person or entity not named or described therein. The foregoing
agreement to arbitrate and other agreements to arbitrate with an additional
person or entity duly consented to by the parties to this Agreement shall be
specifically enforceable in accordance with applicable law in any court having
jurisdiction thereof.
(C) The award rendered by the arbitrator or arbitrators shall be
final, and judgment may be entered upon it in accordance with applicable law in
any court having jurisdiction thereof.
22. NO IMPLIED EVICTION. Notwithstanding any inference to the contrary
herein contained, it is understood that the exercise by Landlord of any of its
rights hereunder shall never be deemed an eviction (constructive or otherwise)
of Tenant, or a disturbance of its use of the demised premises, and shall in no
event render Landlord liable to Tenant or any other person, so long as such
exercise of rights is in accordance with the foregoing terms and conditions.
23. LITIGATION INVOLVING LANDLORD AND AGENT. In the event that
Landlord or its Agent shall without fault on its part be made a party to any
litigation commenced by or against Tenant, then, and to such extent Tenant shall
indemnify and hold Landlord and Agent harmless from and against any liability
arising therefrom.
24. CONDEMNATION. If the whole of the premises shall be acquired or
condemned by eminent domain, then the term of this Lease shall cease and
terminate as of the date on which possession of the premises is required to be
surrendered to the condemning authority. All rent shall be paid up to the date
of termination. Tenant reserves unto itself, however, all rights to any awards
that may be payable to Tenant under the terms of the Eminent Domain Code of
Pennsylvania except for claims arising from natural causes such as sinkholes,
11
acts of nature and/or acts of God for which Tenant waives any right to any such
award or damages.
25. NOTICES. All notices required to be given by either party to the
other shall be in writing. All such notices shall be deemed to have been
properly given if served personally or if sent by United States certified mail,
postage prepaid, addressed to Landlord at Two Xxxxxxxx Place, Suite 140, 0000
Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000 and addressed to Tenant at the
demised premises or to such other address which either party may hereafter
designate in writing by notice given in a like manner.
26. REAL ESTATE BROKERS. The Tenant and the Landlord represent to each
other that there are no brokers involved in this transaction, except that the
Xxxxxxxx Group, 0000 Xxxxx 00xx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx, 00000,
represents the Landlord. It is agreed that Tenant has no responsibility
whatsoever for any payment to any broker related to this Lease, with the
understanding that the Xxxxxxxx Group is the only broker involved in this Lease.
27. BINDING EFFECT. All rights and liabilities herein given to, or
imposed upon the respective parties hereto, shall extend to and bind the
respective heirs, executors, administrators, successors and assigns of said
parties.
28. SEVERABLE TERMS. Each term, remedy, provision, condition,
obligation and/or waiver contained in this lease, or any amendment or supplement
hereto, is a separate and distinct covenant and, if any such term, remedy,
provision, condition, obligation and/or waiver is declared unenforceable or
unconstitutional, or invalid by any court of competent jurisdiction or by an act
of congress or by any other governmental authority, such decision, statute,
ordinance or regulation will not affect in any manner the enforceability or
validity of any other term, remedy, provision, condition, obligation and/or
waiver contained herein, and they will remain in full force and effect.
29. ENVIRONMENTAL PROTECTION. Tenant represents that there will not be
caused nor permitted the disposal or release of any hazardous substances in or
on the premises being leased except as allowed by law or governmental authority.
Further Tenant represents that neither it shall nor will they allow anyone else
to do, anything affecting the premises that is in violation of any Environmental
Law. "Hazardous Substances" are those substances defined as toxic or hazardous
substances by Environmental law and the following substances: gasoline,
kerosene, other flammable or toxic petroleum products, toxic pesticides and
herbicides, volatile solvents, materials containing asbestos or formaldehyde and
radioactive materials. As used in this paragraph, Environmental Law means
Federal laws and laws of the jurisdiction where the premises is located that
relates to health, safety or environmental protection. To the extent that Tenant
or anyone on its behalf, including but not limited to its officers, directors,
employees, representatives, agents or business invitees, allows anyone of the
things to be done which are not permitted as recited in this paragraph, Tenant,
its directors, officers and shareholders, agree to fully indemnify Landlord, its
successors and assigns, heirs and personal representatives, from any and all
responsibility and liability to any person, property or
12
in any other fashion pursuant to Environmental Law, rule or regulation. The
provisions, representations and agreements in this paragraph shall survive the
termination of this Lease. This paragraph shall survive the termination of this
Lease especially as may be indicated as a result of an independent Phase I or
Phase II study performed at Tenant's expense at the time of Tenant's vacation of
premises. As of the date of execution of this Lease, Landlord represents that it
has no knowledge of any violations or conditions which could be a violation of
any state, federal or local environmental laws, rules or regulations.
30. ENTIRE AGREEMENT. This lease and any riders or addendums that may
be attached hereto set forth all the promises, agreements, conditions and
understandings between Landlord or its agents and Tenant relative to the demised
premises, and there are no promises agreements, conditions or understandings,
either oral or written, between them other than are herein set forth. Except as
herein otherwise provided, no subsequent alteration, amendment, change or
addition to this lease shall be binding upon Landlord or Tenant unless reduced
to writing and signed by them.
31. QUIET ENJOYMENT. Landlord covenants and agrees that, upon Tenant's
payment of rent, and its observance and performance of all of its obligations
under this Lease, Tenant shall peaceably and quietly enjoy the property being
leased to the Tenant pursuant to this Commercial Lease Agreement.
32. IMPROVEMENTS. The space being leased shall be provided by
Landlord as turn key fit out. Improvements to the space being leased shall be
provided on building standard per floor plan attached as Floor Plan Addendum
to this lease, as also outlined in the specs explained in 32 (A) below; all
of these improvements shall be herein referred to as the "Improvements."
Tenant shall be responsible for all telephone, data and electric as well as
any other improvements above building standard. The total cost of the
Improvements is agreed to be [*] Dollars. Landlord shall pay One Hundred
Thousand and 00/100 ($100,000.00) Dollars of the cost of the Improvements and
Tenant shall pay the remaining balance of [*] Dollars of the cost of the
Improvements upon the signing of this lease. The following specs are included
in the basic fit-out of the Improvements:
(1) Rough and finish plumbing per attached spec sheet
(2) Reuse standard cabinets, appliances supplied by Tenant
(3) Industrial Carpeting (Cpt Tacoma) with vinyl base (VCT
Great 8)
(4) Relocate existing HVAC Units Install new 5 ton unit (12-ton
a/c unit extra)
(5) Drop existing sprinkler heads where required
(6) Pressure wash warehouse area
(7) Construction of all interior partitions, installation of
doors, Insulation, and drop ceiling,
[*] We are seeking confidential treatment of these terms, which have been
omitted. The confidential portion has been filed separately with the
Securities and Exchange Commission.
13
(8) 24" drywall ceiling border in areas indicated
(9) Painting and standard wall paper installation (wall paper
not included)
(10) Tenant shall accept full responsibility and pay for all
electrical work
(11) Detailed Spec Sheets are attached
(12) All extras and change orders to the Improvements will be
billed at cost plus 15% management fee
(B) For any changes or extras not included in the Improvements, Tenant
shall agree to pay fifty (50%) percent down at the time the Landlord approves
any proposed change(s) or extra(s) by the Tenant, and the remaining balance
shall be paid at the time the aforementioned proposed change(s) or extra(s) have
been completed.
33. OPTION TO RENEW. Tenant shall have one-five year option to renew
under the same conditions as contained herein but with annual CPI Philadelphia
Urban Wage Index increases over the last year of the original lease term for
each year of this option period.
34. SECURITY DEPOSIT. Tenant shall pay to Landlord a security deposit
one (1) month's rent upon signing this lease which shall be returned within
thirty (30) days after the end of the lease. This security deposit shall not be
used as the last month's rent by Tenant and shall be held without interest by
Landlord as security of damage to the leased premises and as security for any
violation of the lease by Tenant.
14
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound to the
terms of this Lease, have caused this lease to be executed the day and year
first above written.
WITNESS: RB ASSOCIATES, A PENNSYLVANIA PARTNERSHIP, LANDLORD
BY: /s/ Xxxxxxx Xxxxxxxxxx
------------------------- ----------------------------------
XXXXXXX XXXXXXXXXX, PARTNER
ATTEST: YOU TOOLS CORPORATION, D/B/A FASTNET,TENANT
BY: /s/ Xxxx Xxxxxxxxxx BY: /s/ Xxxxx Xxx Xxxxx
--------------------- ----------------------------------
SECRETARY XXXXX XXX XXXXX, PRESIDENT
15
Addendum to Lease between You Tools Corporation d/b/a FastNet and RB Associates
for space known as Xxxxx 000, 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX.
FIRST RIGHT OF REFUSAL
During the term of this Lease, should Landlord receive a bona fide offer to
lease any available space contiguous to Tenant's space which Landlord is willing
to accept, Tenant shall have a first right of refusal to lease said space under
the same terms and conditions. Upon receiving said offer to lease said space,
Landlord shall forward to Tenant of copy of the offer and Tenant shall have five
(5) business days from receipt of said offer to exercise its first right of
refusal to lease said space under the terms and conditions set forth in the
offer. Should Tenant fail to communicate to Landlord its intention with respect
to Tenant's first right of refusal within the aforesaid five (5) business day
period, it shall be conclusively presumed that Tenant is not exercising its
first right of refusal to lease said space and Landlord shall be at liberty to
lease the space under the terms set forth in the offer. If for any reason the
space is not leased under the terms and conditions of the offer, then Tenant
shall have the continuing right of first refusal with respect to any such other
offer.
LANDLORD /s/ Xxxxxxx Xxxxxxxxxx TENANT /s/ Xxxxx Xxx Xxxxx
-------------------------------- -----------------------------
OPERATING EXPENSE ADDENDUM
ATTACHED TO and made a part of the Commercial Lease Agreement made the
22 day of July, 1998, by and between RB ASSOCIATES, Landlord, and YOU TOOLS
CORPORATION, D/B/A FASTNET, Tenant.
35. PAYMENT. Tenant shall pay to Landlord an Operating Expense
Allowance of [*] Dollars, per year in equal monthly installments of [*]
Dollars, the first of which shall be payable upon execution of this Lease. If
the term of this Lease commences other than on the first day of a month, then
the Operating Expense Allowance for the first month of the term of this Lease
shall be adjusted proportionately, and the aforesaid first installment paid
by Tenant upon the execution of this Lease shall be initially applied to the
first partial month and the balance to the succeeding month.
If Landlord's Operating Expense for any Operating Year shall be
greater than the total Operating Expense Allowance for such year, Tenant shall
pay to Landlord as additional rent an amount equal to Tenant's Proportionate
Share of the difference (the amount of Tenant's Proportionate Share of such
difference is hereinafter referred to as the "Operating Expense Adjustment'). If
Tenant occupies the demised premises or a portion thereof for less than a full
Operating Year, the Operating Expense Adjustment will be calculated in
proportion to the amount of time in such Operating Year that Tenant occupied the
demised premises.
Such Operating Expense Adjustment shall be paid in the following
manner: Within one hundred twenty days (120) following the end of the first and
each succeeding Operating Year, Landlord shall furnish to Tenant an Operating
Expense Statement setting forth (a) the Operating Expense for the preceding
Operating Year; (B) the Operating Expense Allowance; and (c) Tenant's Operating
Expense Adjustment for such Operating Year. Within fifteen (15) days following
receipt of such Operating Expense Statement (the "Expense Adjustment Date")
Tenant shall pay to Landlord as additional rent the Operating Expense Adjustment
for such Operating Year.
Commencing with the first month of the second Operating Year, Tenant
shall pay to Landlord, in addition to the Operating Expense Allowance, on
account of the Operating Expense Adjustment for such Operating Year, monthly
installments in advance equal to one-twelfth (1/12) of the estimated Operating
Expense Adjustment for such Operating year. On the next succeeding Expense
Adjustment Date, Tenant shall pay to Landlord (or Landlord shall credit to
Tenant) any deficiency (or excess) between the installments paid on account of
the preceding year's Operating Expense Adjustment and the actual Operating
Expense Adjustment for such Operating Year.
[*] We are seeking confidential treatment of these terms, which have been
omitted. The confidential portion has been filed separately with the
Securities and Exchange Commission.
As used in this Addendum, the following words and terms shall be defined as
hereinafter set forth:
A. "Operating Year" shall mean each calendar year, or other period of
twelve (12) months as hereinafter may be adopted by Landlord as its fiscal year,
occurring during the term of the Lease.
B. "Operating Expense Allowance" shall mean and equal the monthly
amount hereinabove set forth.
C. "Operating Expense Statement" shall mean a statement in writing
signed by Landlord, setting forth in reasonable detail (i) the Operating Expense
for the preceding Operating Year; (ii) the Operating Expense Allowance; and
(iii) the Tenant's Operating Expense Adjustment for such Operating Year or
portion thereof. The Operating Expense Statement for each Operating Year and all
supporting and related invoices, costs and documentation shall be available for
inspection by Tenant at Landlord's office during normal business hours.
D. "Operating Expense" shall mean the following expenses incurred by
the landlord in connection with the operation, repair and maintenance of the
demised premises, the building of which it is a part and the land on which it is
located: (i) Real estate taxes and other taxes or charges levied in lieu of such
taxes, general and special public assessments, charges imposed by any
governmental authority pursuant to anti-pollution or environmental legislation,
taxes on the rentals of the building in which the demised premises are located
or the use, occupancy or renting of space therein; (ii) premiums and fees for
fire and extended coverage insurance, insurance against loss of rentals for
space in the building of which the demised premises are a part and public
liability insurance, all in amounts and coverages (with additional policies
against additional risks) as may be required by Landlord or the holder of any
mortgage; (iii) water and sewer service charges, electricity, heat and other
utility charges not separately metered to tenants in the building of which the
demised premises are a part; (iv) all maintenance and repair costs to all areas
of the building in which the demised premises are located, including repairs and
replacements of supplies and equipment, snow and trash removal and paving, lawn
and general grounds upkeep, maintenance and repair of all mechanical equipment
such as standard HVAC, elevators, electrical and plumbing equipment, and the
costs of all labor, materials and supplies incidental thereto; except that
Tenant shall not be required to reimburse Landlord for non-reimbursable capital
repairs unless the repairs were caused by the Tenant's negligence, excessive use
above and beyond design capacity or if the design criteria provided by Tenant
prove not to be adequate; (v) management fees payable to the managing agent for
the demised premises, if any, and if there shall be no managing agent or if the
managing agent is a company affiliated with the Landlord, the management fees
that would customarily be charged for the management of the building in which
the demised premises are located by an independent first class managing agent in
the Philadelphia suburban area; (vi) any and all other expenditures of Landlord
incurred in connection with the operation, repair or maintenance of the demised
premises and the building or land within which they are located which are
properly expensed in accordance with generally accepted accounting principles
consistently applied in the operation,
2
maintenance and repair of a first class office/industrial building facility.
Tenant to pay for trash removal. Landlord reserves the right to separately meter
water and sewer used by Tenant within the demised premises and charge Tenant
directly for those services, in which event those items shall no longer be
included in the definition of "Operating Expenses" and shall be paid separately
by Tenant.
The term "Operating Expense" shall not include depreciation on the
building or equipment therein, interest, net income, franchise or capital stock
taxes payable by Landlord, executive salaries, real estate broker's commissions
or the cost of services provided especially for any particular tenant at such
Tenant's expense and not uniformly available to all tenants within the building
of which the demised premises are a part.
E. "Tenant's Proportionate Share" shall be [*] which is equivalent
to a fraction [*].
36. FINAL YEAR OF LEASE TERM. During the calendar year in which the
term of this Lease ends, Landlord shall have the right to submit to Tenant a
statement of Landlord's reasonable estimate of the Operating Expense Adjustment
during the period (the "Final Period") beginning on the first day of the final
Operating Year of the term or, if later, the date of the immediately preceding
Operating Expense Adjustment, and ending on the final day of the term of this
Lease. Upon the earlier to occur of the thirtieth (30th) day following Tenant's
receipt of such statement or the final day of the term of this Lease, Tenant
shall pay to Landlord said estimated Operating Expense Adjustment minus the
total amount of payments previously made by Tenant pursuant to Section 1 above
during the final period. If requested by Tenant, Landlord shall submit to Tenant
a statement setting forth the actual amount of said Operating Expense Adjustment
after Landlord's final calculation of same, and within fifteen (15) days after
Tenant's receipt of such statement, Tenant shall pay to Landlord any deficiency,
or, as the case may be, Landlord shall refund to Tenant any overpayment
occasioned by Tenant's payment of the aforesaid estimate.
[*] We are seeking confidential treatment of these terms, which have been
omitted. The confidential portion has been filed separately with the
Securities and Exchange Commission.
3
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be
executed the day and year first above written.
WITNESS: RB ASSOCIATES, A PENNSYLVANIA PARTNERSHIP, LANDLORD
BY: /s/ Xxxxxxx Xxxxxxxxxx
------------- -------------------------------------------
XXXXXXX XXXXXXXXXX, PARTNER
ATTEST: YOU TOOLS CORPORATION, D/B/A FASTNET,TENANT
BY: /s/ Xxxx Xxxxxxxxxx BY: /s/ Xxxxx Xxx Xxxxx
---------------------- -------------------------------------------
SECRETARY XXXXX XXX XXXXX, PRESIDENT
4
SECOND
ADDENDUM TO COMMERCIAL LEASE AGREEMENT
WHEREAS, RB ASSOCIATES, a Pennsylvania Partnership, of Two Xxxxxxxx Place,
Suite 140, 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000 (hereinafter
called "Landlord") and FASTNET CORPORATION a Corporation with offices at Two
Courtney Place, Suite 130, 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000
(hereinafter called "Tenant") entered into a Commercial Lease Agreement dated
July 22, 1998 (hereinafter referred to as the "Commercial Lease Agreement") and
Addendum to Commercial Lease Agreement dated August 8, 1999 (hereinafter
referred to as the "First Addendum"); and
WHEREAS, the Landlord desires to rent and Tenant desires to lease an
additional amount of warehouse and office space which consists of approximately
19,941 square feet located at Xxxxxxxx I, Suite 150, 0000 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxx 00000 (hereinafter referred to as the "Second Additional
Space") in addition to the approximately 26,470 square feet currently being
leased by Tenant from Landlord pursuant to the Commercial Lease Agreement and
the First Addendum; and
WHEREAS, Tenant and Landlord agree that the terms and conditions for the
lease of the Second Additional Space shall be the same as the Commercial Lease
Agreement except as specifically provided to the contrary in this Second
Addendum to the Commercial Lease Agreement; and
WHEREAS, the Landlord and the Tenant hereby agree to amend Section 2.
LICENSES, PERMITS, ETC., Section 6. NEGATIVE COVENANTS OF TENANT., Section 10.
SERVICES. and Section 32. IMPROVEMENTS. of the Commercial Lease Agreement as
specifically stated herein; and
WHEREAS, the Landlord and the Tenant hereby agree to the payment of a
Security Deposit by Tenant to Landlord as specifically stated herein; and
WHEREAS, the Landlord and the Tenant hereby agree to amend the "Operating
Expense Allowance" and the "Tenant's Proportionate Share" in the Operating
Expense Addendum attached to and made a part of the Commercial Lease Agreement
as specifically stated herein;
NOW, THEREFORE, in consideration of the promises and the mutual covenants
herein contained, the parties hereby agree that the Commercial Lease Agreement
is amended as follows:
1. The following rental terms for the Second Additional Space shall be added to
and paid in addition to the rental payments provided in Section 1. TERM, MINIMUM
RENTAL of the Commercial Lease Agreement and First Addendum:
Landlord hereby demises and lets unto Tenant all that certain warehouse and
office space comprised of approximately 19,941 square feet known as
Internet Unlimited located at Xxxxxxxx I, Suite 150, 0000 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxx 00000 to be used and occupied for the same purposes
and uses and all other related purposes and uses as provided in the
Commercial Lease Agreement as lawful warehousing and office space for
Tenant's business for the term of six (6) years to commence on or before
September 1,
5
1999 and terminating on the thirty-first (31st) day of August, 2005 as
follows:
(a) Tenant shall pay rent on the basis [*] Dollars per square foot
for a base rent for the first seven (7) months of occupancy payable in equal
monthly payments [*] Dollars with the first month's rent payable on September
1, 1999 and monthly thereafter on the first (1st) day of each month until
March 31, 2000; and
(b) Tenant shall pay rent on the basis of [*] Dollars per square
foot for a base rent for the next five (5) months of occupancy payable in
equal monthly payments of [*] Dollars with the first month's rent payable on
April 1, 2000 and monthly thereafter on the first (1st) day of each month
until August 31, 2000; and
(c) Tenant shall pay rent on the basis [*] Dollars per square foot
for a base rent for the next seven (7) months of occupancy payable in equal
monthly payments [*] Dollars with the first month's rent payable on September
1, 2000 and monthly thereafter on the first (1st) day of each month until
March 31, 2001; and
(d) Tenant shall pay rent on the basis [*] Dollars per square foot
for a base rent for the next five (5) months of occupancy payable in equal
monthly payments of [*] Dollars with the first month's rent payable on April
1, 2001 and monthly thereafter on the first (1st) day of each month until
August 31, 2001; and
(e) Tenant shall pay rent on the basis [*] Dollars per square foot
for a base rent for the next seven (7) months of occupancy payable in equal
monthly payments of [*] Dollars
[*] We are seeking confidential treatment of these terms, which have been
omitted. The confidential portion has been filed separately with the
Securities and Exchange Commission.
6
with the first month's rent payable on September 1, 2001 and monthly
thereafter on the first (1st) day of each month until March 31, 2002; and
(f) Tenant shall pay rent on the basis [*] Dollars per square foot
for a base rent for the next five (5) months of occupancy payable in equal
monthly payments of [*] Dollars with the first month's rent payable on April
1, 2002 and monthly thereafter on the first (1st) day of each month until
August 31, 2002; and
(g) Tenant shall pay rent on the basis of [*] Dollars per square
foot for a base rent for the next seven (7) months of occupancy payable in
equal monthly payments of [*] Dollars with the first month's rent payable on
September 1, 2002 and monthly thereafter on the first (1st) day of each month
until March 3 1, 2003; and
(h) Tenant shall pay rent on the basis [*] Dollars per square foot
for a base rent for the next five (5) months of occupancy payable in equal
monthly payments of [*] Dollars with the first month's rent payable on April
1, 2003 and monthly thereafter on the first (1st) day of each month until
August 31, 2003; and
(i) Tenant shall pay rent on the basis of [*] Dollars per square
foot for a base rent for the next seven (7) months of occupancy payable in
equal monthly payments of [*] Dollars with the first month's rent payable on
September 1, 2003 and monthly thereafter on the first (lst) day of each month
until March 31, 2004; and
[*] We are seeking confidential treatment of these terms, which have been
omitted. The confidential portion has been filed separately with the
Securities and Exchange Commission.
7
(j) Tenant shall pay rent on the basis of [*] Dollars per square
foot for a base rent for the next five (5) months of occupancy payable in
equal monthly payments of [*] Dollars with the first month's rent payable on
April 1, 2004 and monthly thereafter on the first (1st) day of each month
until August 31, 2004; and
(k) Tenant shall pay rent on the basis of [*] Dollars per square
foot for a base rent for the next seven (7) months of occupancy payable in
equal monthly payments [*] Dollars with the first month's rent payable on
September 1, 2004 and monthly thereafter on the first (1st) day of each month
until March 31, 2005; and
(l) Tenant shall pay rent on the basis of [*] Dollars per square
foot for a base rent for the next five (5) months of occupancy payable in
equal monthly payments of [*] Dollars with the first month's rent payable on
April 1, 2005 and monthly thereafter on the first (1st) day of each month
until August 31, 2005.
Section 2. LICENSES, PERMITS, ETC. of the Commercial Lease Agreement shall be
deleted in its entirety but only as far as pertaining to the Second Additional
Space is concerned and the following Section 2. LICENSES, BUILDING PERMITS,
CERTIFICATES OF OCCUPANC.Y ETC. shall be inserted in place thereof-.
2. LICENSES, BUILDING PERMITS, CERTIFICATES OF OCCUPANCY, ETC. Tenant shall be
solely responsible for obtaining all necessary licenses, building permits and
certificates of occupancy and comply with all zoning and any other ordinances
with Hanover
[*] We are seeking confidential treatment of these terms, which have been
omitted. The confidential portion has been filed separately with the
Securities and Exchange Commission.
8
Township as well as any other local, state, and/or federal laws, rules and
regulations which may apply to the construction of the improvements to be
made to the Second Additional Space. Landlord will cooperate with Tenant in
obtaining these permits and approvals. Landlord has no knowledge of any
conditions relating to the leased space which would prevent Tenant from
obtaining any and all required approvals for its business. Landlord will
timely submit upon receipt from Tenant any drawings to Hanover Township and
obtain the initial building permits required and applicable to the Second
Additional Space at Tenant's expense.
3. Paragraph (B) of Section 6. NEGATIVE COVENANTS OF TENANT. of the Commercial
Lease Agreement shall be deleted in its entirety but only as far as pertaining
to the econd Additional Space is concerned and the following paragraph (B) of
Section 6. NEGATIVE COVENANTS OF TENANT. shall be inserted in place thereof:
(B) Make any alterations, improvements, or additions to the Second
Additional Space without the Landlord's consent, which will not be
unreasonably withheld. Specifically, Landlord understands that there will
be improvements made to the Second Additional Space prior to Tenant's
occupancy, however Tenant shall not commence construction of any
improvements without first obtaining written approval of the Landlord as
described in Section 32.(A) of the Second Addendum of this Lease found at
paragraph 5. below. Any and all alterations, improvements, additions or
fixtures installed before or during the term of this Lease, shall become
and remain the property of the Landlord if they become fixtures; however,
all computer communications, and/or internet related equipment and/or
related fixtures may be removed by Tenant if it is removed by the time the
Tenant vacates the Second Additional Space and provided, in the
9
case of computer, Internet and/or communication fixtures, the Leased
Space is not damaged and/or is reasonably restored.
4. Section 10. SERVICES. of the Commercial Lease Agreement shall be deleted in
its entirety but only as far as pertaining to the Second Additional Space is
concerned and the following Section 10. SERVICES. shall be inserted in place
thereof:
10. SERVICES. The following services and facilities shall be supplied by
Landlord to Tenant in connection with Tenant's use of the Second Additional
Space, in common with other tenants of the building of which the Second
Additional Space is a part:
(A) Landlord shall supply the Second Additional Space with electric
service for heat, air conditioning, lighting and power to operate business
machines and equipment. Landlord shall furnish and install a meter for
measuring Tenant's electric usage in the Second Additional Space and Tenant
shall pay utility company direct for such usage in the Second Additional
Space. Landlord shall, at its expense, repair and maintain standard
building equipment used to furnish power to the Second Additional Space
which shall be reimbursed according to the Operating Expense Addendum
attached to the Commercial Lease Agreement except as modified by this
Second Addendum.
(B) Providing Landlord is not grossly negligent, Landlord shall have
no responsibility or liability to Tenant, nor shall there be any abatement
in the said rent for any failure to supply any of said services and
facilities that Landlord has agreed to supply hereunder during such period
as the services and facilities are out of order, undergoing repair as a
direct and necessary result of labor disorders, strikes, accidents or other
causes beyond Landlord's control, In case of emergency which is not in
Landlord's control or
10
because of labor disturbances, strikes, accidents or causes beyond
Landlord's control, Landlord may do so for the period necessary and
required and if so there shall not be any abatement in rent or other
liability to Tenant. However, Landlord acknowledges and understands the
importance of uninterrupted utility services to Tenant and agrees to
exercise due diligence to maintain such uninterrupted service if within the
Landlord's control and, furthermore, to attempt to notify Tenant in
advance, if practicable, of any such anticipated interruption.
5. Section 32. IMPROVEMENTS. of the Commercial Lease Agreement shall be
deleted in its entirety but only as far as pertaining to the Second Additional
Space is concerned and the following Section 32. IMPROVEMENTS. shall be inserted
in place thereof:
32. IMPROVEMENTS. Tenant represents that all improvements to the Second
Additional Space shall be completed by Tenant within a reasonable time and
Tenant will occupy the Second Additional Space on or before December 31,
1999. Tenant further agrees that:
(A) Any and all improvements as to the Second Additional Space shall
be constructed at the sole cost and expense of Tenant. Before starting any
structural construction whatsoever, Tenant must obtain Landlord's written
approval of all building plans, blueprints, contractors to be used and
building, roof and floor penetrations and any changes made thereto after
approval by Landlord or during construction which approval shall not be
unreasonably withheld if the proposed improvements are reasonably related
and appropriate to Tenant's business. In particular, Tenant agrees that
Tenant shall use the following contractors for all initial construction
work competitively priced and
11
performed in the area of their specialty: Centimark for all roof work,
Baron Welding Fabricators for curb cuts and Xxxx for HVAC work excluding
specialty air-conditioning work. Further, Landlord shall have thirty (30)
days from receipt by Landlord in writing from Tenant of all complete
building plans, blueprints, contractors to be used and a detailed plan of
all building, roof and floor penetrations prior to Landlord's giving its
approval or rejection and prior to Tenant beginning any construction.
Landlord shall have ten (10) days from receipt by Landlord in writing from
Tenant of any changes made during construction to approve or reject any
such changes; and
(B) Prior to any contractor providing any work on the Second
Additional Space, the contractor shall have executed a Stipulation versus
Liens in form satisfactory to Landlord and cause it to be filed with the
Office of the Northampton County Prothonotary at Easton, Pennsylvania; and
(C) Tenant shall provide to Landlord evidence that each contractor has
at all times adequate workmen's compensation insurance and general
liability insurance with companies, coverages and dollar limits
satisfactory to Landlord with Landlord named as an additional insured,
together with a certificate from the insurer to the effect that such
insurance may not be canceled or substantially modified without at least
thirty (30) days prior written notice to Landlord.
6. Tenant shall pay to Landlord a security deposit consisting of one (1)
month's rent for the Second Additional Space of [*] Dollars upon signing this
Second Addendum which shall be
[*] We are seeking confidential treatment of these terms, which have been
omitted. The confidential portion has been filed separately with the
Securities and Exchange Commission.
12
returned within thirty (30) days after the end of the term described herein in
Section I of this Second Addendum. This security deposit shall not be used as
the last month's rent by Tenant and shall be held without interest by Landlord
as security for damages to the Second Additional Space and as security for any
violation of the lease by Tenant.
7. Section 1. PAYMENT. of the Operating Expense Addendum of the Commercial
Lease Agreement shall be amended and the following payment for the Second
Additional Space shall be added to and paid in addition to the payment described
in the First Addendum:
Tenant shall also pay to Landlord an additional Operating Expense Allowance
of [*] Dollars, per year in equal monthly installments of [*] Dollars for
the Second Additional Space leased in the Second Addendum to Commercial
Lease Agreement.
8. Section 1.E. of the Operating Expense Addendum of the Commercial Lease
Agreement shall be amended and the following shall be added to the 'Tenant's
Proportionate Share' as described in the First Addendum:
"`Tenant's Proportionate Share' shall be 36.89% which is equivalent to
a fraction for the Second Additional Space leased in Xxxxxxxx I in the
Second Addendum to Commercial Lease Agreement."
In all other respects, the Commercial Lease Agreement and the First
Addendum are hereby ratified and affirmed.
[*] We are seeking confidential treatment of these terms, which have been
omitted. The confidential portion has been filed separately with the
Securities and Exchange Commission.
13
IN WITNESS WHEREOF, the parties hereto have caused this Second Addendum to
be executed as of this 1st day of September, 1999.
WITNESS: RB ASSOCIATES, A PENNSYLVANIA PARTNERSHIP
BY /S/ XXXXXXX XXXXXXXXXX (SEAL)
-------------------------------- ----------------------------------
XXXXXXX XXXXXXXXXX, PARTNER LANDLORD
ATTEST: FASTNET CORPORATION
/s/ Xxxxxxx X. Xxxxxxxx BY: BY /S/ XXXXX XXXXXXXX (SEAL)
------------------------------- ------------------------------------
XXXXX XXX XXXXX, PRESIDENT TENANT
14
ADDENDUM TO COMMERCIAL LEASE AGREEMENT
WHEREAS, RB ASSOCIATES, a Pennsylvania Partnership, of Two Xxxxxxxx Place,
Suite 140, 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000 (hereinafter
called "LANDLORD") and FASTNET CORPORATION, a corporation with offices at Two
Courtney Place, Suite 130, 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000
(hereinafter called "TENANT") entered into a Commercial Lease Agreement dated
July 22, 1998 (hereinafter referred to as the "Commercial Lease Agreement"); and
WHEREAS, the Landlord desires to rend and Tenant desires to lease an
additional amount of warehouse and office space which consists of approximately
15,415 square feet located at Xxxxxxxx XX, Suite 130, 0000 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxx 00000 (hereinafter referred to as the "Additional
Space") in addition to the approximately 11,055 square feet currently being
leased by Tenant from Landlord pursuant to the Commercial Lease Agreement; and
WHEREAS, Tenant and Landlord agree that the terms and conditions for the
lease of the Additional Space shall be the same as the Commercial Lease
Agreement except as specifically provided to the contrary in this Addendum to
the Commercial Lease Agreement;
WHEREAS, the Landlord and the Tenant hereby agree to amend Section 2.
LICENSES, PERMITS, ETC., Section 6 NEGATIVE COVENANTS OF TENANT, Section 10.
SERVICES. and Section 31. IMPROVEMENTS. of the Commercial Lease Agreement as
specifically stated herein; and
WHEREAS, the Landlord and the Tenant hereby agree to the payment of a
Security Deposit by Tenant to Landlord as specifically stated herein; and
WHEREAS, the Landlord and the Tenant hereby agree to amend the "Operating
Expanse Allowance" and the "Tenant's Proportionate Share" in the Operating
Expense Addendum attached to and made a part of the Commercial Lease Agreement
as specifically stated herein;
NOW, THEREFORE, in consideration of the promises and the mutual covenants
herein contained, the parties hereby agree that the Commercial Lease Agreement
is amended as follows:
1. The following rental terms for the Additional Space shall be added to and
paid in addition to the rent provided in Section 1. TERM, MINIMUM RENTAL, of the
Commercial Lease Agreement:
Landlord hereby demises and lets unto Tenant all that certain warehouse
space comprised of approximately 15,415 square feet adjoining and adjacent
to the first floor of the building known as the Additional Space of
Xxxxxxxx XX, Suite 130, 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000
to be used as provided in the Lease dated July 22, 1998 as lawful
warehousing space for Tenant's business for the term of six (6) years to
commence on or before June 1, 1999 and terminating on the thirty-first
(31st) day of August 2005 as follows:
15
(a) Tenant shall pay rent on the basis of [*] Dollars per square foot
for a base rent for the first year of occupancy payable in equal monthly
payments of [*] Dollars with the first month's rent prorated based on
Tenant's occupancy date and monthly thereafter on the first (1st) day of
each month until May 31, 2000; and
(b) Tenant's second year of occupancy shall commence at the rate of
[*] Dollars per square foot for a base rent for the second year of
occupancy in the amount of [*] Dollars payable in twelve (12) equal
monthly payments of [*] Dollars with the first rent of the second year of
the term commencing and payable on June 1, 2000; and
(c) Tenant's third year of occupancy shall commence at the rate of [*]
Dollars per square foot for a base rent for the third year of occupancy
in the amount of [*] Dollars payable in twelve (12) equal monthly
payments of [*] Dollars with the first rent of the third year of the
term commencing and payable on June 1, 2001;and
(d) Tenant's fourth year of occupancy shall commence at the rate of
[*] Dollars per square foot for a base rent for the fourth year of
occupancy in the amount of [*] Dollars payable in twelve (12) equal
monthly payments of [*] Dollars with the first rent of the fourth year of
the term commencing and payable on June 1, 2002; and
(e) Tenant's fifth year of occupancy shall commence at the rate of [*]
Dollars per square foot for a base rent for the fifth year of occupancy
in the amount of [*] Dollars payable in twelve (12) equal monthly
payments of [*] Dollars with the first rent of the fifth year of the
term commencing and payable on June 1, 2003; and
(f) the base rent for the Tenant's sixth year of occupancy June 1,
2004 to August 31, 2005 shall be the same as the base rent for the
Tenant's fifth year of occupancy.
2. Section 2. LICENSES, PERMITS, ETC. of the Commercial Lease Agreement shall be
deleted in its entirety but only as far as pertaining to the Additional Space is
concerned and the following Section 2. LICENSES, BUILDING PERMITS, CERTIFICATES
OF OCCUPANCY, ETC. shall be inserted in place thereof:
2. LICENSES, BUILDING PERMITS, CERTIFICATES OF OCCUPANCY, ETC. Tenant shall be
solely responsible for obtaining all necessary licenses, building permits and
certificates of occupancy and comply with all zoning and any other ordinances
with Hanover Township as well as any other local, state and/or federal laws,
rules and regulations which may apply to the construction of the improvements to
be made to the Additional Space. Landlord will cooperate with Tenant in
obtaining these permits and approvals. Landlord has no knowledge of any
conditions relating to the lease space which would prevent Tenant from obtaining
any and all
[*] We are seeking confidential treatment of these terms, which have been
omitted. The confidential portion has been filed separately with the
Securities and Exchange Commission.
16
required approvals for its business. Landlord will timely submit upon receipt
from Tenant any drawings to Hanover Township and obtain the initial building
permits required and applicable to the Additional Space at Tenant's expense.
3. Paragraph (B) of Section 6. NEGATIVE COVENANTS OF TENANT. of the Commercial
Lease Agreement shall be deleted in its entirety but only as far as pertaining
to the Additional Space is concerned and the following paragraph (B) of Section
6. NEGATIVE COVENANTS OF TENANT. shall be inserted in place thereof:
(B) Make any alterations, improvements, or additions to the Additional
Space without Landlord's consent, which will not be unreasonably
withheld. Specifically, Landlord understands that there will be
improvements made to the Additional Space prior to Tenant's occupancy,
however, Tenant shall not commence construction of any improvements
without first obtaining written approval of the Landlord as described
in Section 32.(A) of the Addendum of this Lease found at paragraph 5,
below. Any and all alterations, improvements, additions or fixtures
installed before or during the term of this Lease, shall become and
remain the property of the Landlord if they become fixtures; however,
all computer communications, and/or internet related equipment and/or
related fixtures may be removed by Tenant if it is removed by the time
Tenant vacates the Additional Space and provided, in the case of
computer, internet and/or communication fixtures, the Leased Space is
not damaged and/or is reasonably restored.
4. Section 10. SERVICES. of the Commercial Lease Agreement shall be deleted in
its entirety but only as far as pertaining to the Additional Space is concerned
and the following Section 10. SERVICES. shall be inserted in place thereof:
10. SERVICES. The following services and facilities shall be supplied by
Landlord to tenant in connection with Tenant's use of the Additional Space,
in common with other tenants of the building of which the Additional Space
is a part:
(A) Landlord shall supply the Additional Space with electric service for
heat, air conditioning, lighting and power to operate business machines and
equipment. Landlord shall furnish and install a meter for measuring
Tenant's electric usage in the Additional Space and Tenant shall pay
utility company direct for such usage in the Additional Space. Landlord
shall, at its expense, repair and maintain standard building equipment used
to furnish power to the Additional Space which shall be reimbursed
according to the Operating Expense Addendum attached to the Commercial
Lease Agreement except as modified by this Addendum.
(B) Providing Landlord is not grossly negligent, Landlord shall have no
responsibility or liability to Tenant, nor shall there be any abatement in
the said rent for any failure to supply any of said services and facilities
that Landlord has agreed to supply hereunder during such period as the
services and facilities are out of order, undergoing repair as a direct and
unnecessary result of labor disorders, strikes, accidents or other
17
causes beyond Landlord's control. In case of emergency which is not in
Landlord's control or because of labor disturbances, strikes, accidents
or causes beyond Landlord's control, Landlord may do so for the period
necessary and required and if so there shall not be any abatement in
rent or other liability to Tenant. However, Landlord acknowledges and
understands the importance of uninterrupted utility services to Tenant
and agrees to exercise due diligence to maintain such uninterrupted
service if within the Landlord's control and, furthermore, to attempt to
notify Tenant in advance, if practicable, of any such anticipated
interruption.
5. Section 32. IMPROVEMENTS. of the Commercial Lease Agreement shall be
deleted in its entirety but only as far as pertaining to the Additional Space is
concerned and the following Section 32. IMPROVEMENTS. shall be inserted in place
thereof:
32. IMPROVEMENTS. Tenant represents that all improvements to the Additional
Space shall be completed by Tenant within a reasonable time and Tenant will
occupy the Additional Space on or before June 1, 1999. Tenant further
agrees that:
(A) Any and all improvements as the Additional Space shall be
constructed at the sole cost and expense of Tenant. Before starting any
structural construction whatsoever, Tenant must obtain Landlord's written
approval of all building plans, blueprints, contractors to be used and
building, roof and floor penetrations and any changes made thereto after
approval by Landlord or during construction which approval shall not be
unreasonably withheld if the proposed improvements are reasonably related
and appropriate to Tenant's business. In particular, Tenant agrees that
Tenant shall use the following contractors for all initial construction
work competitively priced and performed in the area of their specialty:
Centimark for all roof work, Baron Welding Fabricators for curb cuts and
Xxxx for HVAC work excluding specialty air-conditioning work. Further,
Landlord shall have thirty (30) day from receipt by Landlord in writing
from Tenant of all complete building plans, blueprints, contractors to be
used and a detailed plan of all building, roof and floor penetrations prior
to Landlord's giving its approval or rejection and prior to Tenant
beginning any construction. Landlord shall have ten (10) days form receipt
by Landlord in writing from Tenant of any changes made during construction
to approve or reject any such changes; and
(B) Prior to any contractor providing any work on the Additional Space,
the contractor shall have executed a Stipulation versus Liens in form
satisfactory to Landlord and cause it to be filed with the Office of the
Northampton County Prothonotary at Easton, Pennsylvania; and
(C) Tenant shall provide to Landlord evidence that each contractor has
at all time adequate workmen's compensation insurance and general liability
insurance with companies, coverages and dollar limits satisfactory to
Landlord with Landlord named as addition insured, together with a
certificate form the insurer to the effect that such insurance may not be
canceled or substantially modified without at least thirty (30) days prior
written notice to Landlord.
18
6. Tenant shall pay to Landlord a security deposit consisting of one (1)
month's rent for the Additional Space of [*] Dollars upon signing this
Addendum which shall be returned within thirty (30) days after the end of the
term described herein in Section 1 of this Addendum. This security deposit
shall not be used as the last month's rent by Tenant and shall be held
without interest by Landlord as security for damages to the Additional Space
and as security for any violation of the lease by Tenant.
7. Section 1. PAYMENT. of the Operating Expense Addendum to the Commercial
Lease Agreement which provides "Tenant shall pay to Landlord an Operating
Expense Allowance of [*] Dollars, per year in equal monthly installments of
[*] Dollars," shall be deleted and instead it shall be provided that "Tenant
shall pay to Landlord an Operating Expense Allowance for both the demised
premises in the Commercial Lease Agreement and the Additional Space leased in
this Addendum of [*] Dollars, per year in equal monthly installments of [*]
Dollars,"
8. Section 1.E.of the Operating Expense Addendum to the Commercial Lease
Agreement which provides `Tenant's Proportionate Share' shall be [*] which is
equivalent to a fraction," shall be deleted and stead it shall be provided
that " `Tenant's Proportionate Share' for both the demised premises in the
Commercial Lease Agreement and the Additional Space leased in this Addendum
shall be [*] which is equivalent to a fraction..."
In all other respects, the Commercial Lease Agreement dated July 22, 1998 is
hereby ratified and affirmed.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be
executed this 8 day of August, 1999.
WITNESS: RB ASSOCIATES, a Pennsylvania Partnership
/s/ Xxxxxx X. Xxxxx BY: /S/ XXXXXXX XXXXXXXXXX (SEAL)
----------------------------- ---------------------------
XXXXXXX XXXXXXXXXX, PARTNER LANDLORD
ATTEST: FASTNET CORPORATION
BY: /s/ Xxxxxxx X. Xxxxxxxx BY: /S/ XXXXX XXX XXXXX (SEAL)
-------------------------------- -------------------------
XXXXX XXX XXXXX, PRESIDENT
[*] We are seeking confidential treatment of these terms, which have been
omitted. The confidential portion has been filed separately with the
Securities and Exchange Commission.
19
