EXHIBIT 10.11
COMMERCIAL LEASE
BETWEEN
NORTHAMPTON COUNTY NEW JOBS CORP.
AS LANDLORD
AND
STC TECHNOLOGIES, INC.
AS TENANT
DATED
APRIL 30, 1999
PREMISES:
21,420 SQUARE FEET
BETHLEHEM TECHNOLOGY CENTER II
BETHLEHEM, PENNSYLVANIA
COMMERCIAL LEASE
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This Commercial Lease (hereinafter referred to as this "LEASE") is
made as of the 30th day of April, 1999, by and between NORTHAMPTON COUNTY NEW
JOBS CORP., a Pennsylvania nonprofit corporation, having an office at 0000
Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxxxx 00000, and having a mailing
address of Xxxx Xxxxxx Xxx 00000, Xxxxxx Xxxxxx, Xxxxxxxxxxxx 00000,
("LANDLORD") and STC TECHNOLOGIES, INC., a Delaware corporation, having its
principal offices at 0000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000-0000
("TENANT").
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein, and intending to be legally bound, the parties hereto covenant and agree
as follows:
SECTION 1. PREMISES. Landlord does hereby lease, demise and let
unto Tenant a portion of the first floor and all of the second floor in a
building with an aggregate square footage of approximately 36,251 square feet
which includes 2,616 square feet of Common Areas ("BUILDING"), as shown on the
Floor Plans of the Building and the Leased Premises annexed as Exhibit A hereto
and containing a total of 21,420 rentable square feet ("LEASED PREMISES"), which
Building is situated on approximately 3.05 acres of land situate in the City of
Bethlehem, Northampton County, Pennsylvania ("LAND"), together with the right,
in common with other occupants of the Building, to use the Common Areas (defined
below). As used herein, "rentable square feet" means the usable area measured
from the middle of the demising walls outlining the Leased Premises (19,874
square feet) plus a prorated percentage of the Common Area square footage (1,546
square feet). It is agreed that the design plans and drawings of the proposed
Building are incorporated herein by reference and that no changes will be made
to said design plans and drawings without the consent of Tenant.
SECTION 2. TERM. The term of this Lease shall be for five (5)
years, commencing on the date ("Commencement Date") which is the latest to occur
of (i) January 1, 2000, and (ii) the date the Tenant Finish Work is
Substantially Complete (defined below) and a verbal occupancy permit has been
received; and expiring on the last day ("EXPIRATION DATE") of the fifth (5th)
Lease Year (defined below), unless renewed or sooner terminated as hereinafter
provided. Landlord and Tenant anticipate that the term of this Lease will
commence on January 1, 2000 ("ANTICIPATED COMMENCEMENT DATE").
As used in this Lease, "LEASE YEAR" means each consecutive twelve
calendar month period beginning with the Commencement Date, except that if the
Commencement Date does not occur on the first day of a calendar month, then the
first Lease Year shall also include the number of days from the Commencement
Date until the last day of the first month of Tenant's occupancy and the term of
this Lease shall be five (5) years plus said number of days and shall expire on
the last day of the sixtieth (60th) full month of the term.
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When the Commencement Date and Expiration Date have finally been
determined, Landlord and Tenant shall execute and deliver a Lease amendment, in
the form of the Lease Commencement Date Amendment annexed as Exhibit B hereto,
to confirm said dates.
SECTION 3. RENT.
(a) Beginning on the Commencement Date and continuing
thereafter during the entire initial term of this Lease, Tenant shall pay to
Landlord, as yearly rent, the following sums ("BASE RENT"), in equal monthly
installments, in advance on the first day of each calendar month, without demand
or notice:
Lease Month Rentable Sq. Feet Annualized Base Rent Monthly Base Rent Base Rent Rate/SF
1-60 First Fl. 13,640 $122,760.00 $10,230.00 $9.00 sq. ft.
Second Fl. 7,780 81,690.00 6,807.50 $10.50 sq. ft.
TOTAL 21,420 $204,450.00 $17,037.50
(b) In the event that the Commencement Date occurs on a day
other than the first day of a calendar month, Tenant shall pay to Landlord a pro
rata portion of the monthly installment of Base Rent for such partial month,
computed at the annual Base Rent rate of $9.00 rentable square foot for the
first floor and $10.50 per rentable square foot for the second floor.
(c) Whenever under the terms of this Lease any sum of money is
required to be paid by Tenant in addition to the Base Rent herein reserved, and
said additional sum is not designated as "Additional Rent," then if not paid
when due, said sum shall nevertheless be deemed "ADDITIONAL RENT" and be
collectible as such with any installment of Base Rent thereafter falling due
hereunder, but nothing herein contained shall be deemed to suspend or delay the
payment of any such sum at the time the same became due and payable hereunder,
or limit any other remedy of Landlord.
(d) All payments of Base Rent and Additional Rent shall be paid
when due at 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxxxx 00000, or by
mailing the same to Xxxx Xxxxxx Xxx 00000, Xxxxxx Xxxxxx, Xxxxxxxxxxxx 00000, or
at such other place as Landlord may from time to time direct by written notice
to Tenant. All checks shall be made payable to the order of Landlord.
SECTION 4. ADDITIONAL RENT. Tenant shall pay to or on behalf of
Landlord, as Additional Rent, the following:
----------------------------------------------------
Including 1,546 square feet of Common Areas.
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(a) Utilities: Tenant shall pay directly to the applicable
utility all normal and customary electric and gas charges for and with respect
to the Leased Premises as shown on a separate meter exclusively for the Leased
Premises.
(b) Other Expenses: Tenant shall pay to the Landlord as
additional rent each month a sum equal to one twelfth (1/12) of the following
listed expenses multiplied by the Tenant's Space Ratio of the Leased Premises to
the total rentable square footage. Tenant's Space Ratio (hereinafter "Tenant's
Space Ratio") is that percentage determined by dividing the square footage of
the Leased Premises, as the numerator, by the total aggregate square footage of
rentable space, as the denominator. Tenant's Space Ratio is 59.09%. Tenant's
Space Ratio shall be revised in the event of any change in the rentable square
footage of the Building.
(1) Real estate taxes assessed upon the land and
building of which the Leased Property is a part.
(2) Fire and liability insurance premiums pertaining
to the land and building.
(3) Water and sewer charges and fees made by the City
of Bethlehem for water used at the Building. This contemplates the ordinary use
of water for cafeteria, toilet, washroom and drinking facilities. In the event
Tenant uses greater amounts of water for operational reasons, the Tenant shall
be charged, and Tenant hereby agrees to pay, for this increased use in addition
to the percentage set forth in this paragraph.
(4) Common Area expenses which include, but are not
limited to, expenses of metered utilities (electric and gas) and routine
cleaning, repairs, and similar expenses associated exclusively with the Common
Areas. Landlord agrees that there shall be a competitive bidding procedure to
contract for expenses related to the Common Area.
(5) Landscaping maintenance, snow removal, and similar
expenses related to servicing the 3.05 acres associated with the Building.
(c) Trash Removal: Tenant shall pay as Additional Rent a
trash removal fee based on the actual cost for removing trash and recyclable
material from the Building based on the ratio of the "rentable square feet" of
the Leased Premises to the total aggregate square foot area of space in the
Building actually leased. This Additional Rent will be reimbursed to the
Landlord quarterly. Tenant shall separately and directly contract for any
removal of medical and/or hazardous waste.
(d) Life Safety Inspections and Expenses: Tenant shall Pay
as Additional Rent Tenant's proportionate share (based on Tenant's Space Ratio),
all costs of the annual inspection of the fire alarm and sprinkler system plus
costs associated with fire
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extinguisher recharging and replacement, battery replacements, and other minor
repairs to the systems.
(e) Heating, Ventilation and Air Conditioning ("HVAC"):
Tenant shall pay as Additional Rent all costs related to the repair and
maintenance of the HVAC system(s) serving the Leased Premises.
(f) Parking Lot: Tenant shall pay as Additional Rent the sum
of $1,990.50 month during the first term of the Lease representing the $102,960
paid by Landlord to acquire the adjacent 1.17 acres of land to be used as a
parking lot, said amount amortized at six percent (6%) over the five-year
period. In the event the Lease terminates and Tenant has not exercised its right
to purchase the Building and Land, Landlord shall reimburse to Tenant the full
amount of principal paid by Tenant over a five (5) year period amortized at six
(6%) percent, said five-year period to begin as of the date of Lease
termination.
All sums due under this Section shall be appropriately apportioned and
prorated for any portion of a Lease Year, so that Tenant shall not be obligated
to pay any costs of operation that accrue either prior to the Commencement Date
or following the Expiration Date of the term of this Lease.
SECTION 5. LATE PAYMENT. In the event that Tenant shall fail to pay
Base Rent or any Additional Rent within ten (10) days after its due date, Tenant
shall pay an automatic late charge to Landlord of $.05 for each dollar overdue.
Such late charge shall be deemed Additional Rent for all purposes under this
Lease.
SECTION 6. USE OF LEASED PREMISES; INDEMNIFICATION.
(a) Tenant shall use and occupy the Leased Premises as a
commercial office alight industrial facility, together with all appurtenant and
incidental uses relating thereto (but only to the extent permitted by applicable
zoning and similar ordinances and regulations). Tenant shal1 not use or occupy
the Leased Premises for any other purpose or business, without the prior written
consent of Landlord. Tenant shall observe and comply with (i) the Rules and
Regulations annexed as Exhibit C hereto, as amended, modified and supplemented
from time to time by Landlord, provided such change does not conflict with any
express provision of this Lease ("Rules and Regulations"); (ii) the Restrictive
Covenants on the Land attached hereto as Exhibit D; (iii) the Deed restrictions
set forth in Exhibit E; and (iv) the anti-discrimination provisions attached
hereto as Exhibit F. The Rules and Regulations applicable to Tenant shall not be
more restrictive than those applicable to other tenants of the Building and
their respective employees, agents, licensees, invitees, subtenants and
contractors.
(b) With respect to the Leased Premises, in addition to and
not in limitation of the foregoing, during the term of this Lease, Tenant, its
subtenants, licensees, invitees, agents, contractors, subcontractors, and
employees shall conduct its business on and
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occupy the Leased Premises in strict compliance with all federal, state, and
local statutes, ordinances, regulations, rules, standards, and requirements of
the common law, whether now in force or as amended or enacted in the future,
concerning or relating to industrial hygiene and the protection of health and
the environment (collectively, the "ENVIRONMENTAL LAWS"). Tenant shall also
cause its subtenants, licensees, invitees, agents, contractors, subcontractors
and employees to comply with all Environmental Laws. Except as provided below,
Tenant shall, at its own expense, obtain, maintain, and comply with all terms
and conditions in any and all permits, licenses, registrations, authorizations,
and other governmental and regulatory approvals required for Tenant's use and
occupancy of the Leased Premises. Tenant shall insure that any materials or
wastes discharged into the sanitary sewer systems are appropriately treated, if
necessary, and are discharged in accordance with the City of Bethlehem's
Industrial User Wastewater Discharge Policies, as established by Bethlehem's
approved pre-treatment program, applicable pre-treatment regulations found at 40
C.F.R. Part 403, and Section 307 of the Clean Water Act, 33 X.X.X (X)0000. If
necessary, Tenant shall, at its own expense, obtain a license from the Nuclear
Regulatory Commission. Tenant shall insure that its importation, receipt,
acquisition, possession, use, storage, transfer, delivery and disposal of by-
product, source and/or nuclear material is performed in strict accordance with
any such license.
With respect to the Leased Premises, it shall be Tenant's sole
responsibility to receive, acquire, use, handle, manage, generate, process,
treat, store, deliver, transfer, and dispose of all hazardous substances in
strict compliance with the Environmental Laws and prudent industry standards.
Upon expiration or earlier termination of the Term of this Lease, Tenant shall
cause all Hazardous Substances brought upon the Leased Premises by its agents,
employees contractors, or invitees, or generated by its operation, to be removed
from the Leased Premises and transported for use, storage, treatment or disposal
in accordance with the Laws. Tenant shall, at its own expense, develop and
maintain any appropriate spill plan with respect to all Hazardous Substances
brought onto the Leased Premises. To the extent that Tenant is required to
complete and file EPA Form R (40 C.F.R. Part 372), Tenant shall provide Landlord
with a copy of the same. Tenant shall not cause or permit any condition on the
Leased Premises which might give rise to liability, the imposition of a
statutory lien or require "Response," "Removal" and "Remedial Action" as defined
herein, under any Environmental Laws. As used in this Lease, the terms
"RESPONSE," "REMOVAL" and "REMEDIAL ACTION" shall be defined with reference to
Sections 101(23) - 101(25) of the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA") as amended by the Superfund Amendments
and Xxxxxxxxxxxxxxx Xxx, 00 X.X.X. (X)(X)0000 (23)-9601(25).
With respect to the Leased Premises, Tenant shall have the sole
responsibility of complying with the requirements of the Emergency Planning and
Community Right-to-Know Act of 1986 (EPCRTKA), 41 U.S.C. (S)(S) 11001-11050, the
Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. (S)(S) 651-678, as
amended, and the Pennsylvania Worker and Community Right-to-Know Act, PA Stat.
Xxx. tit. 35 (S)(S) 7301-7320 (Xxxxxx 1989). Tenant shall submit to Landlord on
an annual basis a list of the Hazardous Substances, hazardous mixtures, or
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hazardous chemicals for which it is required to maintain Material Safety Data
Sheets (MSDS). Tenant shall also provide Landlord copies of all required
contingency plans including, without limitation, plans for spills of Hazardous
Substances, fire and other potential emergencies.
With respect to the Leased Premises, as used in this Lease, the term
"HAZARDOUS SUBSTANCES" shall mean any substance regulated under any of the
Environmental Laws including, without limitation, any substance which is: (i)
petroleum, explosives, radioactive materials, asbestos or material containing
asbestos, polychlorinated biphenyls or related or similar materials (PCBs); (ii)
defined, designated or listed as a "Hazardous Substance" pursuant to Sections
307 and 311 of the Clean Water Act or Section 103 of the Pennsylvania Hazardous
Sites Clean-Up Act, PA Stat. Xxx. tit. 35 (S) 6020.103; (iii) defined,
designated or listed as a "Hazardous Waste" under Section 1004(5) of the
Resource Conservation and Recovery Act, 42 U.S.C. (S) 9603(5) or Section 103 of
the Pennsylvania Solid Waste Management Act, PA Stat. Xxx. tit. 35 (S) 6018.103;
(iv) regulated under the Pennsylvania Clean Streams Law, PA Stat. Xxx. tit. 35
(S)(S) 691.1-691.1001; (v) listed in the United States Department of
Transportation Hazardous Materials Table, 49 C.F.R. (S) 172.101; (vi) defined,
designated or listed as a "byproduct, source and/or special nuclear material"
under the Atomic Energy Act of 1954, as amended by the Energy Reorganization Act
of 1974 (Public Law 93-438), 42 U.S.C. (S) 2011-2296 and 10 C.F.R. Parts 30, 31,
32, 22, 34, 35, 40 and 70; and (vii) defined, designated or listed as a
"Hazardous Material" under Section 103 of the Hazardous Material Emergency
Planning Response Act, PA Stat. Xxx. tit. 35 (S) 6022-103; and (viii) any
element, compound or material which can pose a threat to the public health or
the environment when released into the environment; and (ix) any other substance
designated by any of the Environmental Laws or a federal, state, or local agency
as detrimental to public health, safety and the environment.
With respect to the Leased Premises, Tenant shall immediately notify
Landlord, in writing, upon discovering any condition on the Leased Premises
which might require Tenant to notify any governmental or regulatory agency or
which might give rise to liability, imposition of a statutory lien, or require
Response, Removal or Remedial Action under any of the Environmental Laws. In
addition, Tenant shall immediately notify Landlord, in writing, of Tenant's
receipt, knowledge, or discovery of: (i) the presence of any Hazardous Substance
on, about, beneath, or arising from any portion of the Leased Premises in
violation of any of the Environmental Laws; (ii) any enforcement, Response,
Removal, Remedial Action, or other governmental or regulatory actions instituted
or threatened against Tenant or the Leased Premises pursuant to any of the
Environmental Laws; (iii) any claim made or threatened by any person against
Tenant or the Leased Premises relating to any form of damage, loss or injury
resulting from or claimed to result from any Hazardous Substance or any
violation of the Environmental Laws; and (iv) any communication received from
any governmental or regulatory agency arising out of or in connection with
Hazardous Substances on, about, beneath, arising from, or generated at the
Leased Premises including, without limitation, any notice of violation,
citation, complaint, order, directive, request for information, notice letter,
or compliance schedule. Tenant shall supply to Landlord as promptly as possible
and in any event within five (5) business days after
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Tenant receives or sends the same, copies of all reports required to be filed
under any of the Environmental Laws, responses to any requests for information,
and any claim, complaint, notice of violation, citation, order, directive,
compliance schedule, notice letter, or other communications relating in any way
to the Leased Premises, Tenant's use thereof of Hazardous Substances on, about,
beneath, arising from or generated at the Leased Premises. Tenant shall also
promptly deliver to Landlord copies of any hazardous wastes manifests listing
the Leased Premises as the facility and the Tenant as generator and reflecting
legal and proper disposal of all Hazardous Substances removed from the Leased
Premises.
With respect to the Leased Premises, except in case of emergency or as
otherwise required by the Environmental Laws, Tenant shall not take any
Response, Removal, or Remedial Action or notify any governmental or regulatory
agency in response to the presence of Hazardous Substances on, about, beneath,
or arising from the Leased Premises, or enter into any settlement agreement,
consent degree, administrative consent order or other compromise with respect to
any claim relating to any Hazardous Substances in any way connected with the
Leased Premises without first notifying Landlord of Tenant's intention to do so
and affording Landlord an ample opportunity to appear, intervene, or
appropriately assert and protect Landlord's interest with respect thereto.
(c) With respect to the Leased Premises, Tenant, its
subtenants, licensees, invitees, agents, contractors, subcontractors and
employees shall not dispose, release, spill, pump, pour, emit, empty, dump or
otherwise discharge or allow to escape Hazardous Materials into the environment,
and Tenant shall take all action necessary to remedy the results of any such
disposal, release, spillage, pumping, pouring, emission, emptying, dumping,
discharge, or escape.
(d) Tenant shall supply Landlord with copies of any written
communication between Tenant and any governmental agency or instrumentality
concerning or relating to violations or alleged violations of Environmental Laws
with respect to the Leased Premises.
(e) Tenant shall indemnify, defend (by counsel acceptable to
Landlord) and hold harmless Landlord, its directors, officers, employees,
affiliated entities, predecessors, successors and assigns, from and against any
and all claims, liabilities, penalties, fines, judgments, forfeitures, losses
(including, without limitation, diminution in the value of the Leased Premises
or damages for any loss or restriction on the use of rentable or usable space of
any amenity of the Leased Premises), costs, and expenses (including reasonable
attorneys fees, consultant, and expert fees) in any way arising from or relating
to: (i) the presence of any Hazardous Substance on, about, beneath or arising
from the Leased Premises excluding any Hazardous Substances which pre-exist the
term of this Lease or any Hazardous Substances discharged by Landlord or any
third party not in any way connected with Tenant's occupancy, (ii) Tenant's use,
handling, generation, processing, treatment, manufacture, storage,
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transportation, disposal, release, or discharge of Hazardous Substances on,
about, beneath, or arising from the Leased Premises; (iii) Tenant's failure to
comply with any of the Environmental Laws; and (iv) Tenant's breach of any of
the Environmental Covenants contained herein. Tenant's indemnity and defense
obligations under this paragraph shall include, without limitation, any whether
foreseeable or unforeseeable, any and all costs incurred in connection with any
investigation of site conditions on, about, beneath, or arising from the Leased
Premises, and any and all costs of any required Response, Removal or Remedial
Actions, and the preparation and implementation of any closure, remedial action,
or other required plans or reports in connection therewith. The Landlord's
obligations under this paragraph shall survive the expiration or earlier
termination of the terms of this Lease.
SECTION 7. COMMON AREAS. All parking areas, walkways, stairs,
driveways, public corridors, rest rooms, loading areas, and fire escapes, and
other areas, facilities and improvements now or hereafter existing in or outside
the Building or on the Land ("COMMON AREAS") which may be provided by Landlord
from time to time for the general use, in common, of Tenant and other tenants,
their employees, agents, invitees and licensees, shall at all times be subject
to the control and management of Landlord. Landlord shall have the right from
time to time to establish, modify and enforce reasonable rules and regulations
with respect to the Common Areas, provided such rules and regulations do not
adversely affect Tenant's use of the Leased Premises. It is specifically agreed
that Tenant shall have fifteen (15) parking spaces near Tenant's entrance to the
Building specifically designated for the exclusive use of Tenant. Landlord shall
maintain a sign on the parking lot to the effect that the parking spaces are for
private use for tenants of the Building and their guests. If Landlord and Tenant
agree that Tenant does not have adequate parking for its employees, agents,
invitees and licensees, Landlord shall segregate the appropriate number of
parking spaces for Tenant's exclusive use based upon the then current Tenant's
Space Ratio. The elevator and reinforced deck for the second floor are part of
the Leased Premises and are not Common Areas. Landlord shall place a sign on the
easternmost loading dock, located next to the Leased Premises, indicating that
it is for the exclusive use of Tenant.
SECTION 8. ALTERATIONS AND TRADE FIXTURES, REMOVAL.
(a) Except as set forth in Section 27 with respect to the
initial Tenant Finish Work, during the term of this Lease, Tenant shall not make
any structural or material alterations or additions to the Leased Premises or
the Building without the prior written consent of Landlord, which consent shall
not be unreasonably withheld or delayed. All such alterations and additions
shall be performed (i) at Tenant's sole cost and expense, (ii) in accordance
with the specifications prepared by and at the expense of Tenant and approved by
Landlord, (iii) by contractors, subcontractors and materialmen approved by
Landlord, and (iv) in conformity with all applicable laws, codes and
regulations. During the course of performance of said work, Tenant will carry or
cause to be carried Comprehensive General Liability insurance, in the
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minimum limit of $1,000,000 naming Landlord as additional insured and further
providing such insurance cannot be cancelled without at least ten (10) days'
prior written notice to Landlord.
(b) Any consent by Landlord permitting Tenant to do any or
cause any work to be done in or about the Building, and right of Tenant to
perform such work, shall be and hereby is conditioned upon Tenant's work being
performed by workmen and mechanics working in harmony and not interfering with
labor employed by Landlord, Landlord's mechanics or contractors or any other
tenant or their contractors.
(c) All alterations, interior decorations, improvements or
additions made to the Leased Premises by Tenant, except for movable furniture,
equipment and trade fixtures, shall immediately become Landlord's property. Upon
termination of this Lease, Tenant shall remove all movable furniture, equipment
and trade fixtures installed by Tenant in the Leased Premises ("TENANT'S
PROPERTY"), and repair any damage caused to the Leased Premises by said removal.
All of Tenant's Property remaining on the Leased Premises after the Expiration
Date, or after any sooner termination date due to any default of Tenant, shall
at the option of Landlord be deemed to be abandoned property and shall become
the property of Landlord.
SECTION 9. MECHANICS' LIENS. Prior to Tenant performing any
construction or other work in or about the Leased Premises for which a lien
could be filed against the Leased Premises or the Building, Tenant shall have
its contractor execute a Waiver of Mechanics' Lien satisfactory to Landlord, and
provide Landlord with a copy thereof. Notwithstanding the foregoing, if any
mechanics' or other lien shall be filed against the Leased Premises or the
Building purporting to be for labor or materials furnished or to be furnished at
the request of Tenant, then at its expense, Tenant shall cause such lien to be
removed of record by payment, bond or otherwise, within thirty (30) days after
the filing thereof. If Tenant shall fail to cause such lien to be removed of
record within such thirty (30) day period, Landlord may cause such lien to be
removed of record by payment, bond or otherwise, without investigation as to the
validity thereof or as to any offsets or defenses thereto, in which event Tenant
shall reimburse Landlord in the amount paid by Landlord, including expenses,
within ten (10) days after Landlord's billing therefor. Tenant shall indemnify
and hold Landlord harmless from and against any and all claims, costs, damages,
liabilities and expenses (including reasonable attorney fees) which may be
brought or imposed against or incurred by Landlord by reason of any such, lien
or removal of record.
SECTION 10. BUILDING SERVICES. Landlord shall provide the following
services, systems and facilities for the Building and Common Areas within the
Building ("BUILDING SERVICES") subject to Tenant's payments of Additional Rent
as set forth in paragraph 4 above;
(a) Basic HVAC for the Leased Premises. Tenant shall be
responsible for all utility charges related to the HVAC systems(s). Landlord
further shall perform necessary
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repairs and maintenance on the HVAC system(s) and shall be reimbursed by Tenant
for the actual costs to Landlord of said repairs and maintenance. Landlord shall
be solely responsible, at Landlord's cost, for all major repairs and any
replacement of the HVAC system(s);
(b) Electrical service for office and light industrial use,
including office and light industrial equipment, in the Leased Premises subject
to payment by Tenant of all utility charges;
(c) Life safety support systems for the Building including
sprinkler and fire extinguisher inspections subject to reimbursement by Tenant
for the cost of same; however, Landlord shall be responsible, at Landlord's
cost, for major repairs and any replacement of the sprinkler system;
(d) Structural systems for the Building;
(e) Water and sewer system for Tenant's use at the Leased
Premises and a plumbing system for the Building subject to payment by Tenant of
all fees and charges related thereto;
(f) Cleaning and maintenance of Common Areas in or relating
to the Building, including bathroom facilities, if any, subject to payment by
Tenant of its space ratio for Common Area expenses;
(g) Landscaping and snow and ice removal; provided Landlord
shall not be obligated to remove snow more frequently than once in any 24-hour
period, and Tenant shall be responsible for its space ratio for expenses related
thereto; and
(h) Tenant shall have the continuing right during the term
of this Lease to utilize, in common with other tenants within the Building, the
parking area of the Building.
Landlord does not warrant that Building Services shall be free from any
temporary slowdown, interruption or stoppage caused by the maintenance, repair,
replacement or improvement of any of the equipment involved in the furnishing of
any such services, or caused by strikes, lockouts, fuel shortages, accidents,
acts of God or the elements or any other cause beyond the control of Landlord.
Landlord agrees to use its best efforts to resume the service upon any such
slowdown, interruption or stoppage as soon as reasonably possible.
SECTION 11. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not assign or hypothecate this Lease or any
interest therein or sublet the Leased Premises or any part thereof without the
prior written consent of Landlord, which consent shall not be unreasonably
withheld or delayed.
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(b) No sublease or assignment shall be valid and no
subtenant or assignee shall take possession of the premises subleased or
assigned until an executed counterpart of such sublease or assignment of this
Lease has been delivered to Landlord.
(c) Regardless of Landlord's consent, no subletting or
assignment shall release Tenant of Tenant's obligations or alter the primary
liability of Tenant to pay the Base Rent and Additional Rent and to perform all
other obligations to be performed by Tenant under this Lease. The acceptance of
rent by Landlord from any other person shall not be deemed to be a waiver by
Landlord of any provision hereof. Consent to one assignment or subletting shall
not be deemed consent to any subsequent assignment or subletting. In the event
of default by any assignee of Tenant or any successor of Tenant in the
performance of any of the terms of this Lease, Landlord may proceed directly
against Tenant without the necessity of exhausting remedies against such
assignee or successor.
(d) In the event that the Leased Premises or any part
thereof have been sublet by Tenant and Tenant is in default under this Lease
then Landlord may collect rent from the subtenant and apply the amount collected
to the Base Rent and Additional Rent herein reserved, but no such collection
shall be deemed a waiver of the provisions of this Section with respect to
subletting or the acceptance of such subtenant as Tenant hereunder or a release
of Tenant under the Lease, or an election by Landlord of its remedies.
SECTION 12. ACCESS TO LEASED PREMISES. Landlord, its employees and
agents shall have the right to enter the Leased Premises at all reasonable times
during Business Hours and at anytime in case of an emergency for the purpose of
examining or inspecting the Leased Premises, showing the Leased Premises to
prospective purchasers, mortgagees and (during the last year of the Lease term
only) tenants of the Building, and making such alterations, repairs,
improvements or additions to the Leased Premises or to the Building as Landlord
may determine to be necessary. If representatives of Tenant shall not be present
to open any entrance into the Leased Premises at any time when such entry by
Landlord is necessary or permitted hereunder, Landlord may enter by means of a
master key (or forcibly in the event of an emergency) without liability to
Tenant and without such entry constituting an eviction of Tenant or termination
of this Lease. Landlord shall use reasonable efforts not to interfere with the
conduct of Tenant's business when entering the Leased premises. Except in the
case of an emergency, Landlord shall notify Tenant (which notice may be oral) of
Landlord's intended entry of the Leased Premises at least 24 hours advance, and
obtain consent of the Tenant, which consent shall not be unreasonably withheld.
SECTION 13. MAINTENANCE AND REPAIRS.
(a) Subject to the terms hereof, Landlord shall promptly
make all repairs and replacements necessary, in Landlord's discretion, to
maintain or promptly restore (i) all building systems including plumbing,
heating, ventilating, air conditioning and electrical
11
systems (including the light fixtures but specifically excluding changing of
light bulbs which shall be the responsibility of Tenant); (ii) roof, interior
and exterior walls, windows, floors (except carpeting) and all other structural
portions of the Building (whether or not including the Leased Premises), in good
repair and operating condition and in order and appearance appropriate for a
building of similar type. Landlord shall also be responsible for the maintenance
of all Common Areas. In no event shall Landlord be obligated under this
paragraph to repair damage caused by (1) any act, omission, accident or
negligence of Tenant or its employees, agents, invitees, licensees, subtenants,
or contractors and (2) any alterations or additions to the Leased Premises or
the Building made by Tenant without the prior written Consent of Landlord (which
consent shall be deemed given with respect to all of the initial Tenant Finish
Work).
(b) Tenant shall, at its sole cost and expense, provide
customary routine maintenance for the Leased Premises and the fixtures therein
and keep them in neat and orderly condition, wear and tear and damage by fire or
other casualty excepted. Tenant shall otherwise maintain the Leased Premises
except to the extent provided in paragraph (a) above.
(c) Landlord shall not be liable for any interference with
Tenant's business arising from the making of any repairs in the Leased Premises
under paragraph (a) above. Landlord shall use its best efforts not to interfere
with the operation of Tenant's business when making repairs in the Leased
Premises. There shall be no abatement of Base Rent or Additional Rent because of
such repairs.
SECTION 14. INDEMNIFICATION AND LIABILITY INSURANCE.
(a) Tenant shall indemnify, defend and hold Landlord
harmless from and against any and all costs, expenses (including reasonable
counsel fees), liabilities, losses, damages, suits, actions, fines, penalties,
claims or demands of any kind and asserted by or on behalf of any person or
governmental authority, arising out of or in any way connected with, and
Landlord shall not be liable to Tenant on account of, (i) any failure by Tenant
to perform any of the agreements, terms, covenants or conditions of this Lease
required to be performed by Tenant, (ii) any failure by Tenant to comply with
any statutes, ordinances, regulations or orders of any governmental authority
applicable to Tenant or its use and occupancy of the Leased Premises (except for
requirements applicable to the Building in general and its occupancy, which
shall be Landlord's sole responsibility), or (iii) any accident, death or
personal injury, or damage to or loss or theft of property, which shall occur in
or about the Leased Premises. In no event shall Tenant be obligated under this
paragraph to indemnify, defend or hold harmless Landlord from and against
damages, claims or demands of any kind arising out of the willful or negligent
conduct of Landlord, its agents, contractors and employees. In no event shall
Landlord be responsible for inspecting or monitoring the Leased Premises for
workplace safety arising out of or with respect to Tenant's equipment and
operations.
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(b) During the term of this Lease and any renewal thereof,
Tenant shall obtain and promptly pay all premiums for Comprehensive General
Liability Insurance with broad form extended coverage, including Contractual
Liability, covering claims for bodily injury (including death resulting
therefrom) and property loss or damage occurring upon, in or about the Leased
Premises, with a minimum combined single limit of at least $1,000,000. All such
policies and renewals thereof shall name Landlord as an additional insured and
shall otherwise be in form and substance, and from insurers, satisfactory to
Landlord. All policies of insurance shall provide (i) that no material change or
cancellation of said policies shall be made without at least thirty (30) days'
prior written notice to Landlord and Tenant, and (ii) that any loss shall be
payable notwithstanding any act or negligence of Tenant or Landlord which might
otherwise result in the forfeiture of said insurance. Upon request of Landlord,
Tenant shall promptly forward copies of all insurance policies maintained
pursuant to this paragraph indicating compliance with the terms hereof. In
addition, not less than fifteen (15) days prior to the expiration dates of said
policy or policies, Tenant shall furnish Landlord with renewal certificates of
the policies of insurance required under this paragraph. The aforesaid insurance
limits may be reasonably increased by Landlord from time to time during the term
of this Lease.
(c) Landlord shall indemnify, defend and hold Tenant
harmless from and against any and all costs, expenses (including reasonable
counsel fees), liabilities, losses, damages, suits, actions, fines, penalties,
claims or demands of any kind and asserted by or on behalf of any person or
governmental authority, arising out of or in any way connected with, and Tenant
shall not be liable to Landlord on account of, (i) any failure by Landlord to
perform any of the agreements, terms, covenants or conditions of this Lease
required to be performed by Landlord (ii) any failure by Landlord to comply with
any statutes, ordinances, regulations or orders of any governmental authority
applicable to Landlord, or (iii) any accident, death or personal injury, or
damage to or loss or theft of property, which shall occur in or about the Common
Areas as a result of the negligence and/or willful conduct of Landlord. In no
event shall Landlord be obligated under this paragraph to indemnify, defend or
hold harmless Tenant from and against damages, claims or demands of any kind
arising out of the willful or negligent conduct of Tenant, its agents,
contractors and employees.
SECTION 15. QUIET ENJOYMENT. Landlord covenants and agrees with
Tenant that upon Tenant paying the Base Rent and Additional Rent and observing
and performing all the terms, covenants and conditions, on Tenant's part to be
observed and performed under Lease, Tenant may peaceably and quietly enjoy the
Leased Premises hereby demised, subject, nevertheless, to the terms and
conditions of this Lease, and subject to the mortgages hereinafter mentioned.
SECTION 16. NEGATIVE COVENANTS OF TENANT. Tenant agrees that it will
not do or suffer to be done, any act, matter or thing objectionable under any
generally applicable fire insurance or any other insurance now in force or
hereafter placed on the Leased Premises or any part thereof or on the Building
by Landlord which shall cause such Policy to
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become void or suspended. In case of a breach of this covenant, in addition to
all other remedies hereunder, Tenant agrees to pay to Landlord, as Additional
Rent, any and all increases in premiums on insurance carried by Landlord on the
Leased Premises or any part thereof or on the Building caused in any way by the
occupancy of Tenant.
SECTION 17. FIRE OR OTHER CASUALTY.
(a) Subject to the provisions of paragraphs (b) and (c)
below, if the Leased Premises and/or any portion(s) or component(s) of the
Building or the Common Areas outside the Premises that are reasonably necessary
to provide Tenant with normal access to and from the Leased Premises or which
provide Building Services or Common Area Services to the Leased Premises (the
"SIGNIFICANT BUILDING COMPONENTS") are damaged by fire or other insured
casualty, Tenant shall give prompt notice of such event to Landlord and,
provided Landlord's mortgagees permit insurance proceeds to be made available
for the repair and restoration of the Leased Premises, the damages shall be
repaired by and at the expense of Landlord and restore to substantially the
condition that existed immediately prior to such damage. Landlord agrees to
repair such damage in an expeditious manner after receipt from Tenant of written
notice of such damage, subject to any delays caused by Acts of God or other
events beyond Landlord's control relating to the actual construction (including
receipt of insurance proceeds) which Landlord has used best efforts to avoid or
overcome. Landlord shall not be liable for any inconvenience or annoyance to
Tenant or injury to the business of Tenant resulting in any way from such damage
or the repair thereof, provided, however, that if the fire and/or damage was not
caused by the negligence of misconduct of Tenant, Tenant shall be entitled to an
abatement of the rent in proportion to the unuseable space to the rentable
square feet from the date of the casualty until the space is again useable.
Tenant acknowledges notice that (i) Landlord shall not obtain insurance of any
kind in Tenant's furniture or furnishings, equipment, fixtures, alterations,
improvements and additions, (ii) it is Tenant's obligation to obtain such
insurance at Tenant's sole expense, and (iii) Landlord shall not be obligated to
repair any damage thereto or replace the same, unless such damage is caused by
the negligence or misconduct of Landlord, its agents, servants or employees.
(b) If (i) the Leased Premises are rendered substantially
untenatable or any Significant Building Component is rendered substantially
unusable or inoperable by reason of such fire or other casualty, or (ii) twenty
percent (20%) or more of the Leased Premises is damaged by said fire or other
casualty, and, in either case, Landlord's engineer or architect reasonably
estimates that it will take more than three (3) months to substantially complete
the required repairs and restoration, Landlord or Tenant shall have the right,
upon written notice to the other within fifteen days after determination by such
architect, in the case of Landlord to elect not to repair and restore the Leased
Premises or Significant Building Component, and in the case of Tenant (except
with respect to a fire or other casualty caused by the negligence or willful
misconduct of Tenant, its agents and employees) to terminate this Lease, and in
such event, this
14
Lease and the tenancy hereby created shall cease as of the date of said
occurrence, the Base Rent and Additional Rent to be adjusted and apportioned as
of said date.
(c) If the Building shall be damaged by fire or other
casualty and any of Landlord's lenders refuse to permit available insurance
proceeds to be used by Landlord to restore the Building and the Leased Premises
to substantially the condition that existed immediately prior to the occurrence
of the fire or other casualty, Landlord shall have the right, upon written
notice to Tenant within fifteen days after notice from such lenders, to
terminate this Lease, and in such event, this Lease and the tenancy hereby
created shall cease and the Base Rent and Additional Rent shall be adjusted and
apportioned as of the date of said termination unless terminated as of the date
of said occurrence in accordance with paragraph (b) above.
SECTION 18. SUBORDINATION.
(a) Subject to the provisions of paragraph 18(b) below, this
Lease shall be subject and subordinate at all times to the lien of any and all
mortgages now placed on the Land or the Building without the necessity of any
further instrument or act on the part of the Tenant to effectuate such
subordination.
(b) Landlord covenants and agrees to use Landlord's best
efforts to obtain and furnish to Tenant, simultaneously with Tenant's execution
of this Lease, an agreement reasonably acceptable to Tenant ("NON-DISTURBANCE
AGREEMENT") executed and acknowledged from holder(s) of any mortgage now
encumbering the Building or the Leased Premises ("EXISTING HOLDER") whereby each
Existing Holder agrees to not disturb Tenant in its rights, use and possession
of the Leased Premises and Building under this Lease or to terminate this Lease,
except to the extent permitted to Landlord by the terms of this Lease,
notwithstanding the foreclosure or the-enforcement of the mortgage or
termination or other enforcement of an underlying lease or installment purchase
agreement. Tenant covenants and agrees to execute and deliver the Non-
Disturbance Agreement(s).
(c) Tenant further agrees that this Lease shall be subject
and subordinate to the lien of any mortgages hereafter placed upon the Land or
the Building and that Tenant shall execute such additional documents to confirm
same, provided that the holder thereof shall have entered into a Non-Disturbance
Agreement with Tenant as described in paragraph (b) above, which Non-Disturbance
Agreement shall be in form reasonably acceptable to the mortgagee and also may
provide for the subordination of this Lease and Tenant's agreement to attorn as
part of its terms.
Section 19. CONDEMNATION.
(a) If any of the Leased Premises or a portion of the
Building or the Common Areas that contains a Significant Building Component
(and, as a result, Tenant's use
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and enjoyment of the Leased Premises is substantially impaired) shall be
condemned or taken permanently for any public or quasi-public use or purpose,
under any statute or by right of eminent domain, or by private purchase in lieu
thereof, then in that event, at the option of either Landlord or Tenant
exercised by notice to the other within thirty (30) days after the date when
possession is taken, the term of this Lease shall cease and terminate as of the
date when possession is taken pursuant to such proceeding or purchase. The Base
Rent and Additional Rent shall be adjusted apportioned as of the time of such
termination and any Base Rent and Additional Rent paid for a period thereafter
shall be refunded. In the event a material portion only of the Building shall be
so taken (even though the Leased Premises may not have been affected by the
taking other portion of the Building), Landlord may, within such 30-day period,
elect to terminate this Lease as of the date when possession is taken pursuant
to such proceeding or purchase or Landlord may elect to repair and restore the
portion not taken at its own expense, and thereafter the Base Rent and
Additional Rent shall be reduced proportionately to reflect the portion of the
Leased Premises or Building not taken.
(b) In the event of any total or partial taking of the
Building, Landlord shall be entitled to receive the entire award in any such
proceeding and Tenant hereby assigns any and all right, title and interest of
Tenant now or hereafter arising in or to any such award or any part thereof and
Tenant hereby waives all rights against Landlord and the condemning authority
except that Tenant shall have the right to claim and prove in any such
proceeding and to receive any award which may be made to Tenant, if any,
specifically for damages for loss of movable trade fixtures, equipment and
moving expenses.
SECTION 20. ESTOPPEL CERTIFICATE. At any time and from time to time
and within ten (10) days after written request by Landlord, Tenant shall
execute, acknowledge and deliver to Landlord a statement in writing duly
executed by Tenant, certifying that (i) this Lease is in full force and effect
without modification or amendment (or, if there have been any modifications or
amendments, that this Lease is in full force and effect as modified and amended
and setting forth the dates of the modifications and amendments); (ii) the dates
to which annual Base Rent and Additional Rent have been paid; (iii) to the
knowledge of the certifying party, no default exists under this Lease or
specifying each such default; and (iv) such other matters as Landlord may
reasonably request; it being the intention and agreement of Landlord and Tenant
that any such statement by Tenant may be relied upon by a prospective purchaser
or a prospective mortgagee of the Building, or by others, in any matter
affecting the Leased Premises.
SECTION 21. DEFAULT. The occurrence of any of the following shall
constitute an event of default ("EVENT OF DEFAULT") and a material breach of
this Lease by Tenant:
(a) The failure of Tenant to take possession of the Leased
Premises within sixty (60) days after the Commencement Date of this Lease;
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(b) A failure by Tenant to pay, when due, any installment of
Base Rent required to be paid by Tenant under this Lease, and such failure
continues for more than fifteen (15) days after written notice provided that
such grace period shall not be applicable more than two times in any Lease Year;
(c) A failure by Tenant to pay, when due, any installment of
Additional Rent or any other sum required to be paid by Tenant under this Lease
and such failure continues for more than fifteen (15) days after Tenant has
received written notice of the delinquent payment from Landlord;
(d) A failure by Tenant to observe and perform any other
provision or covenant of this Lease to be observed or performed by Tenant, and
such failure continues for thirty (30) days after Tenant receives written notice
thereof from Landlord; provided, however, that if the nature of the default is
such that the same cannot reasonably be cured within such thirty (30) day period
but is subject to cure within an additional sixty (60) days, Tenant shall not be
deemed to be in default if Tenant shall commence and diligently pursue the cure
of the default within such thirty (30) day period and cures such failure within
such additional sixty (60) day period; and
(e) The filing of a petition by or against Tenant for
adjudication as a bankrupt or insolvent or for its reorganization or for the
appointment of a receiver or trustee of Tenant's property pursuant to any local,
state or federal bankruptcy or insolvency law; or an assignment by Tenant for
the benefit of creditors; or the taking possession of the property of Tenant by
any local, state or federal governmental officer or agency or court-appointed
official for the dissolution or liquidation of Tenant or for the operating,
either temporary or permanent, of Tenant's business, provided, however, that if
any such action is commenced against Tenant the same shall not constitute a
default if Tenant causes the same to be dismissed within sixty (60) days after
the filing thereof.
SECTION 22. REMEDIES. Upon the occurrence of any Event of Default
then, in addition to all rights and remedies provided by law or equity, or
provided for elsewhere in this Lease, Landlord shall have all of the rights and
remedies specified in the following paragraphs, without any further notice or
demand whatsoever:
(a) Landlord may perform for the account of Tenant the cure
of any such default of Tenant and immediately recover as additional rent any
expenditures made and the amount of any obligations incurred in connection
therewith, plus the prime rate announced by Citibank, N.A., from time to time
("PRIME RATE"), plus four percent (4%) per annum interest from the date of any
such expenditures;
(b) Landlord may immediately proceed to collect or bring
action for the rent as well as for liquidated damages provided for hereinafter,
as being rent in arrears, or may file a Proof of Claim in any bankruptcy or
insolvency proceeding for such rent, or Landlord
17
may institute any other proceedings, whether similar to the foregoing or not, to
enforce payment thereof, the requirement of a Notice to Quit being hereby
expressly waived;
(c) Landlord may re-enter and repossess the Leased Premises
breaking open locked doors, if necessary, and may use as much force as necessary
to effect such entrance. Landlord may remove all of Tenant's goods and property
from the Building and store same, at Tenant's sole cost and expense;
(d) At any time after the occurrence of any event of
default, Landlord may re-enter and repossess the Leased Premises or any part
thereof and attempt to relet all or any part of the Leased Premises for and upon
such terms and to such persons, firms or corporations and for such period or
periods as Landlord, in its sole discretion, shall determine, including a term
beyond the termination of this Lease. Landlord shall consider any tenant offered
by Tenant in connection with such reletting. For the purpose of such reletting,
Landlord may decorate or make reasonable repairs, changes, alterations or
additions in or to the Building and Premises to the extent reasonably deemed by
Landlord necessary; and the cost of such changes, alterations or additions shall
be charged to and be payable by Tenant as Additional Rent hereunder, as well as
any reasonable brokerage and legal fees expended by Landlord. Any sums collected
by Landlord from any new tenant obtained on account of Tenant shall be credited
against the balance of the Base Rent and Additional Rent due hereunder as
aforesaid. Tenant shall pay to Landlord monthly, on the days when the Base Rent
and Additional Rent would have been payable under this Lease, the amount due
hereunder less the net amount obtained by Landlord from such new tenant.
Landlord shall use reasonable efforts to re-let the Leased Premises;
(e) At its option, Landlord may serve notice upon Tenant
that this Lease and the unexpired term hereof shall cease and expire and become
absolutely void on the date specified in such notice, to be not less than
fifteen (15) days after the date of such notice, without any right on the part
of Tenant to save the forfeiture by payment of any sum due or by performance of
any term, provision, covenant, agreement or condition broken; and, thereupon and
at the expiration of the time limit in such notice, this Lease and the term
hereof granted, as well as the entire right; title and interest of Tenant
hereunder, shall wholly cease and expire and become void in the same manner and
with the same force and effect (except as to Tenant's liability) as if the date
fixed in such notice were the expiration date of the term of this Lease.
Thereupon, Tenant shall immediately quit and surrender the Leased Premises to
Landlord and Landlord may enter into and repossess the Leased Premises by
summary proceedings, detainer, ejectment or otherwise and remove all occupants
thereof and, at Landlord's option, any property therein, without being liable to
indictment, prosecution or damages therefor;
(f) At Landlord's option, Tenant shall pay to Landlord on
demand all Base Rent, Additional Rent and other charges payable hereunder due
and unpaid to the date of demand (allowing Tenant a credit for any sums
collected by Landlord from any new tenant to the extent provided in paragraph
(d) above), together with liquidated damages in an amount equal to
18
twenty five percent (25%) of the Base Rent, Additional Rent and other charges
required to be paid under this Lease from the date of said demand to the
Expiration Date of the term of this Lease, as if the same had not or will not be
terminated, together with interest thereon from the date of demand to the date
paid at a rate equal to the Prime Rate plus four percent (4%) per annum. The
amount of liquidated damages attributable to Tenant's Space Ratio of operating
costs shall equal the amount of such costs paid as Additional Rent by Tenant for
the entire Lease Year immediately prior to such default multiplied by the number
of Lease Years (or portions thereof) remaining through the Expiration Date.
Landlord and Tenant acknowledge that the damages to which Landlord is entitled
in the event of a default under this Lease and, if applicable, termination by
Landlord, are not easily computed and are subject to many variable factors.
Therefore, Landlord and Tenant have agreed to the liquidated damages as herein
provided in order to avoid extended litigation in the event of default by
Tenant, and if applicable, termination of this Lease.
In the event Landlord exercises the remedy under this paragraph and
Tenant pays Landlord the entire amount of the liquidated damages, Landlord shall
be deemed to have made an election of remedies and except for regaining
possession of the Leased Premises and termination of this Lease, Landlord shall
not be entitled to exercise any further remedy under this Section; it being
expressly agreed by the parties that the payment of the liquidated damages shall
not entitle Tenant to continue this Lease and possession of the Leased Premises,
which Landlord may terminate at any time under an event of default hereunder.
(g) The rights and remedies given to Landlord in this Lease
are distinct, separate and cumulative remedies, and no one of them, whether or
not exercised by Landlord, shall be deemed to be in exclusion of any of the
others.
SECTION 23. REQUIREMENT OF STRICT PERFORMANCE. The failure or delay
on the part of Landlord to enforce or exercise at any time any of the
provisions, rights or remedies in the Lease shall in no way be construed to be a
waiver thereof, or in any way to affect the validity of this Lease or any part
thereof, or the right of Landlord to thereafter enforce each and every such
provision, right or remedy. No waiver of any breach of this Lease shall be held
to be a waiver of any other or subsequent breach. The receipt by Landlord of
Base Rent or Additional Rent at a time when the Base Rent or Additional Rent is
in default under this Lease shall not be construed as waiver of such default.
The receipt by Landlord of a lesser amount than the Base Rent or Additional Rent
due shall not be construed to be other than a payment on account of the Base
Rent or Additional Rent then due, and any statement on Tenant's check or any
letter accompanying Tenant's check to the contrary shall not be deemed an accord
and satisfaction, and Landlord may accept such payment without prejudice to
Landlord's right to recover the balance of the Base Rent or Additional Rent due
or to pursue any other remedies provided in this Lease. No act or thing done by
Landlord or Landlord's agents or employees during the term of this Lease shall
be deemed an acceptance of a surrender of the
19
Leased Premises and no agreement to accept such a surrender shall be valid
unless in writing and signed by Landlord.
SECTION 24. SURRENDER OF LEASED PREMISES; HOLDING OVER.
(a) The Lease shall terminate and Tenant shall deliver up
and surrender possession of the Leased Premises to Landlord at 11:59 P.M. local
time on the last day of the term hereof, and Tenant hereby waives the right to
any notice of termination or notice to quit. Upon the expiration or sooner
termination of this Lease, Tenant covenants to deliver up and surrender
possession of the Leased Premises in the same condition in which Tenant has
agreed to maintain and keep the same during the term of this Lease in accordance
with the provisions of this Lease, normal wear and tear excepted.
(b) Upon the failure of Tenant to surrender possession of
the Leased Premises to Landlord upon the expiration or sooner termination of
this Lease, Tenant shall pay to Landlord, as liquidated damages, an amount equal
to 150% of the then current Base Rent and Additional Rent required to be paid by
Tenant under this Lease, applied to the first thirty (30) days Tenant shall
remain in possession after the expiration or sooner termination of this Lease,
and 200% of the then current Base Rent and Additional Rent required to be paid
by Tenant under this Lease, applied to the holdover period from and after the
31st day Tenant shall remain in possession after the expiration or sooner
termination of this Lease. Acceptance by Landlord of Base Rent or Additional
Rent after such expiration or earlier termination shall not constitute a consent
to a holdover hereunder or result in a renewal. The foregoing provisions of this
paragraph are in addition to and do not affect Landlord's right of reentry or
any other rights of Landlord hereunder or otherwise provided by law.
SECTION 25. COMPLIANCE WITH LAWS AND ORDINANCES. At its sole cost
and expense, Tenant shall promptly fulfill and comply with all laws, ordinances,
regulations and requirements of the Federal state and local governments and any
and all departments thereof having jurisdiction over the Building applicable to
Tenant's use and occupancy of the Leased Premises (but not those applicable to
the Building generally or its occupancy, which, subject to the terms hereof,
shall be Landlord's sole responsibility), and the National Board of Fire
Underwriters or any other similar body now or hereafter constituted, affecting
Tenant's occupancy of the Leased Premises or the business conducted therein.
SECTION 26. TENANT DESIGN PROCESS.
(a) Landlord shall retain, at Landlord's cost and expense,
the services of a qualified and experienced tenant finish architect ("TENANT
FINISH ARCHITECT") and other consultants, to be approved by Tenant, as shall be
reasonably necessary for the purposes of planning, designing and construction of
the Leased Premises for Tenant's occupancy acceptable to Tenant in scope and
detail ("TENANT FINISH WORK") it being understood that Landlord's required
"Tenant Finish Work" shall be limited to amounts determined in Landlord's
discretion
20
to be normal tenant finish work and that Landlord's financial contribution to
said work shall in no event exceed $22.50 per square foot. The cost of the
Tenant Finish Architect shall be included in the $22.50 per square foot
allocation provided by Landlord. The Tenant Finish Architect shall be
responsible for the development, completion and submission of certain design and
construction documentation for Tenant's and Landlord's review and approval as
set forth herein. Tenant hereby approves Xxx Architectural Associates as the
Tenant Finish Architect.
(b) The Tenant Finish Architect shall meet with Tenant to
determine Tenant's space requirement program. Tenant's space requirement program
shall include a determination of Tenant's general space requirements, Tenant's
specific functional and organizational space requirements, special lighting,
electrical and security requirements, preferred locations and configurations of
offices, work rooms, manufacturing requirements, conference rooms, reception
areas, file rooms and other rooms, and a determination of any other specialized
Tenant requirements.
(c) The Tenant Finish Architect shall complete the plans,
drawings, and specifications ("TENANT CONSTRUCTION DOCUMENTS") necessary and
required to implement the Tenant Finish Work. Tenant Construction Documents
shall be in compliance with and contain all information necessary to obtain the
permits and licenses required to perform the Tenant Finish Work.
SECTION 27. TENANT FINISH WORK.
(a) Tenant hereby approves and Landlord consents to the use
of Xxxxx Associates, or such other contractor as may be approved by Tenant, as
the fit-out contractor. Within two weeks after receiving the Tenant Construction
Documents, Xxxxx Associates will develop a not-to-exceed construction cost for
the entire Tenant Finish Work.
(b) Landlord shall pay the sum of $447,165 towards the cost
of the Tenant Finish Work for the Leased Premises (being an amount equal to
$22.50 per square foot of useable area, i.e. 19,874 square feet). Tenant shall
pay for the balance of the cost of the Tenant Finish Work for the Leased
Premises. Such amounts shall be payable as follows:
(1) Upon receipt and approval by Landlord and Tenant
of the not-to-exceed figure for the Tenant Finish Work for the Leased Premises,
Landlord andTenant shall open a joint checking account requiring the signatures
of both Landlord and Tenant on checks. Landlord shall deposit the sum of
$447,165 into said account, and Tenant will deposit an amount equal to the not-
to-exceed figure less $447,165, in each case within ten (10) days of the
acceptance of the not-to-exceed figure except as otherwise mutually agreed by
Landlord and Tenant.
21
(2) All invoices for the Tenant Finish Work, upon
approval by Xxxxx Associates and Xxx Architectural Associates, shall be
delivered to Landlord for review with Tenant and approval by both Landlord and
Tenant.
(3) Upon approval of the invoices, Landlord and
Tenant shall jointly execute a check and deliver the same for payment of such
invoices.
(4) Tenant shall be responsible for the cost of any
Tenant Finish Work in excess of $447,165 regardless of the reason for such
overage. In the event the total cost of the Tenant Finish Work is in excess of
$447,165 but less than the total amount deposited in the joint account, the
balance remaining in the account upon completion of the Tenant Finish Work shall
be delivered to Tenant. In the event the total cost of the Tenant Finish Work is
less than $447,165, an amount equal to $447,165 less the total cost shall be
refunded to Landlord and the balance remaining in the account, if any, shall be
delivered to Tenant.
(c) Landlord shall cause all Tenant Finish Work to be done
in a good and workmanlike manner. Subject to force majeure, Landlord shall cause
the Tenant Finish Work to be carried forward expeditiously and with adequate
work forces so as to achieve Substantial Completion of the Leased Premises on or
before the Anticipated Commencement Date.
(d) Landlord shall leave the Leased Premises, upon
completion of all construction, in a broom-swept and fully serviceable fashion.
(e) If, within one (1) year after the date of Substantial
Completion of the Tenant Finish Work, any of Tenant's Finish Work is reasonably
found by Tenant to be not in substantial accordance with the requirements of the
Tenant Construction Documents, Landlord shall cause it to be corrected promptly
after receipt of written notice from Tenant to do so, provided however, that
Landlord's financial contribution toward the Tenant Finish Work shall not exceed
$447,165. Landlord's obligation under this paragraph shall survive Tenant's
occupancy of the Leased Premises upon Substantial Completion. Tenant shall give
Landlord notice promptly after discovery of the condition.
(f) Changes in the Tenant Finish Work may be accomplished
only by Change Order. A Change Order shall be based upon agreement between
Landlord and Tenant. Changes in the Tenant Finish Work shall be performed in
conformity with the provisions of this section and the provisions of the Change
Order.
Tenant shall have the right to request changes in the Tenant Finish
Work by making a written request to Landlord describing the requested change,
provided that Landlord shall not be obliged to execute the requested change
unless a Change Order is issued with respect thereto.
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A Change Order is a written instrument prepared by the Tenant Finish
Contractor and signed by Landlord and Tenant stating their agreement upon all of
the following: (a) a Change in the Tenant Finish Work; (b) the extent of the
adjustment in the cost of the Tenant Finish Work, and which party shall pay; and
(c) the extent of the adjustment in the date of Substantial Completion of the
Tenant Finish Work, if any.
SECTION 28. TENANT'S SEPARATE CONTRACTORS. At Tenant's sole cost and
expense, Tenant may perform work with separate contractors, prior to the
Commencement Date, subject to the following requirements:
(a) The work shall be limited to computer, network
installation, telephone installations, process gas line installation, DI water
system installation, and furniture, carpet, and equipment installations.
(b) Tenant shall obtain Landlord's prior written approval of
the contractor and of the specified work to be performed, which approval will
not be unreasonably withheld or delayed, and shall furnish Landlord with
adequate design documentation of such work.
(c) As soon as practicable, Tenant shall furnish to
Landlord, in writing, the names of the persons or entities proposed to perform
Tenant's separate work. Tenant shall not contract with any person or entity with
whom Landlord has reasonable objection.
(d) The entry by Tenant and Tenant's contractors, workmen
and mechanics into the Leased Premises shall be deemed to be under all of the
terms, covenants, conditions and provisions of this Lease, except the covenant
to pay Base Rent and Additional Rent.
(e) Landlord shall not be liable to Tenant in any way for
any injury or death to any person or persons, loss or damage to any of the
leasehold improvements or installations made in the Leased Premises or loss or
damage to property placed therein or thereabout, the same being at Tenant's sole
risk, except for any injury or damage caused in whole or in part by the
negligence of Landlord, its employees, agents or independent contractors. In
addition to any other conditions or limitations on such license to enter the
Leased Premises prior to the Commencement Date, Tenant expressly agrees that
none of its agents, contractors, workmen, mechanics, suppliers or invitees shall
enter the Leased Premises prior to the Commencement Date unless and until each
of them shall furnish Landlord with satisfactory evidence of Comprehensive
General Liability insurance coverage and financial responsibility.
(f) Landlord shall endeavor to afford Tenant's separate
contractors reasonable access to work areas at reasonable times consistent with
the restrictions herein, provided, however, that the reasonable decision of
Landlord as to such access shall be final.
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SECTION 29. SUBSTANTIAL COMPLETION.
(a) As used herein, the Leased Premises shall be considered
"SUBSTANTIALLY COMPLETE" as of the date when construction of the Tenant Finish
Work has been substantially completed in conformity with the Tenant Construction
Documents in all aspects necessary to permit Tenant to occupy and utilize the
Leased Premises for the uses permitted by this Lease, subject to minor punch
list items.
(b) Immediately prior to occupancy of the Leased Premises by
Tenant, Tenant and Landlord jointly shall inspect the Building and the Leased
Premises in order to determine and record their condition and to prepare a
comprehensive list of items that have not been completed (or which have not been
correctly or properly completed) in conformity with the building plans and
specifications and Tenant's Construction Documents ("PUNCH LIST ITEM").
Thereafter Landlord shall proceed promptly to complete and correct all Punch
List Items.
SECTION 30. TENANT DELAYS DEFINED. A "TENANT DELAY" is any delay in
the completion of Tenant's Construction Documents or in preparation of the
Leased Premises for occupancy, caused by an act or omission of Tenant,
including, without limitation, the following:
(a) Tenant's failure to submit in a timely manner as
provided herein approved Tenant's Construction Documents.
(b) Delay caused by revisions to approved Tenant's
Construction Documents requested by Tenant after submission to Landlord.
(c) Delay in the commencement of Tenant Finish Work
resulting from Tenant's failure to authorize the award of the Tenant
Construction Contracts in a timely manner as provided herein.
(d) Delay caused by the performance or nonperformance of any
work or activity by Tenant or any of its employees, agents or separate
contractors or consultants provided Landlord gives Tenant written notice of such
delay as promptly as possible, but in any event within (30) days following any
such delay.
(e) Delay caused by Tenant requested changes in the Tenant
Finish Work as established by written Change Order signed by Landlord and
Tenant.
SECTION 31. DELAY IN POSSESSION. In the event that Substantial
Completion of the Tenant Finish Work is delayed by any Tenant Delay, then for
purposes of determining the Commencement Date as provided in Section 2 hereof
the date of Substantial Completion of the Tenant Finish Work shall be adjusted
by subtracting one (1) day from the actual date of Substantial Completion of the
Tenant Finish Work for each day of Tenant Delay.
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SECTION 32. OPTIONS TO RENEW. Landlord hereby grants Tenant one (1)
option to renew the term of the Lease, upon the following terms and conditions:
(a) The renewal term shall be for five (5) years, commencing
on the day following the expiration date of the initial term;
(b) Tenant must exercise the option, if at all, upon at
least ninety (90) days' written notice to Landlord, prior to the expiration date
of the initial term, as the case may be;
(c) At the time Tenant delivers its notice of election to
renew to Landlord, this Lease shall be in full force and effect and Tenant shall
not then be in default under any of the material terms and conditions of the
Lease beyond any applicable cure period;
(d) The renewal term shall be upon the same terms, covenants
and conditions contained in the Lease, except that the annual Base Rent for the
renewal term shall be the rent set forth in Exhibit G attached hereto;
(e) Tenant shall continue to pay Tenant's Space Ratio of all
costs and expenses of operation as set forth in Section 4 above;
(f) In the event that Tenant assigns this Lease at any time
prior to the expiration of the initial term of this Lease, there shall be no
further right or privilege to renew the term of this Lease; and
(g) If Tenant exercises the option to renew, Landlord and
Tenant shall execute and deliver an amendment to this Lease confirming the
commencement and expiration dates of the renewal term, the Base Rent payable by
Tenant during the renewal term, and any other relevant terms and conditions
agreed upon by Landlord and Tenant applicable during the renewal term.
SECTION 33. PROJECT NAME AND SIGNAGE. During the term of this Lease
so long as Tenant occupies at least-fifty percent (50%) of the Leased Premises,
Tenant shall have the right to display its name highest on a "monument sign"
located near the entrance to Land (to the extent permitted by applicable zoning
ordinances and regulations). No other signage shall be permitted on the Leased
Premises without the prior written approval of Landlord.
SECTION 34. ARBITRATION. Any controversy or claim arising out of or
related to this Lease (other than arising under paragraphs 21 and 22 hereof)
shall be settled by arbitration in Northampton County, Pennsylvania, in
accordance with the Rules of the American Arbitration Association, and the
arbitrator's award shall be binding on the parties and judgment upon such award
may be entered in any court having jurisdiction thereof. If Landlord and Tenant
are unable to agree on the resolution of a controversy or claim, either party
may five (5) days
25
thereafter, by written notice to the other and to the American Arbitration
Association, submit the dispute to arbitration for conclusive and final
determination. No arbitration shall include, by consolidation or joinder or in
any other manner, parties other than the Landlord and the Tenant, including
Tenant's assigns and subtenants.
SECTION 35. NOTICES. All notices or demands under this Lease shall
be in writing and shall be given or served by either Landlord or Tenant to or
upon the other, either personally or by Registered or Certified Mail, Return
Receipt Requested, postage prepaid, or by Federal Express or any other national
overnight delivery service, and addressed as follows:
(a) To Landlord:
Northampton County New Jobs Corp.
Attn: Xxxxx X. Xxxxx
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxxx 00000
or
Xxxx Xxxxxx Xxx 00000
Xxxxxx Xxxxxx, Xxxxxxxxxxxx 00000
with copy to:
DeRaymond & Xxxxx
Attn: Xxxxxxx X. XxXxxxxxx, Esquire
717 Washington Street
Easton, Pennsylvania 180424386
(b) To Tenant:
Prior to Commencement Date:
STC Technologies, Inc.
Attn: Xxxxxxx Xxxxxxxx, President
0000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000-0000
After Commencement Date:
STC Technologies, Inc.
Attn: Xxxxxxx Xxxxxxxx, President
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000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000;
with copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxxxxx, P.C.
Attn: Xxxxx X. Xxxxxxxx, Esquire
The Paragon Centre, Suite 300
0000 Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000-0000
All notices and demands shall be deemed given or served upon the xxxx
of receipt thereof if by personal delivery, two (2) business days following
mailing if by certified mail, and one (1) business day following sending if by
any national overnight delivery. Either Landlord or Tenant may change its
address to which notices and demands shall be delivered or mailed by giving
written notice of such change to the other as herein provided.
SECTION 36. BROKERAGE. Except as otherwise disclosed in writing to
Landlord, Tenant warrants to Landlord that Tenant dealt and negotiated solely
and only with Landlord for this Lease and with no other broker, firm, company or
person.
Tenant hereby agrees to indemnify, defend and hold Landlord harmless
from and against any and all claims, suits, proceedings, damages, obligations,
liabilities, counsel fees, costs, losses, expenses, orders and judgments imposed
by or asserted against Landlord by reason of the falsity or error of Tenant's
warranty.
SECTION 37. FORCE MAJEURE. Landlord and Tenant shall each be excused
for the period of any delay in the performance of any of its obligations under
this Lease, except for Tenant's obligations to pay Base Rent and Additional
Rent, when prevented from so doing by cause or causes beyond their control,
which shall include, without limitation, all labor disputes, civil commotion, or
Acts of God.
SECTION 38. SUCCESSORS. The respective rights and obligations of
Landlord and Tenant under this Lease shall bind and shall inure to the benefit
of Landlord and Tenant and their legal representatives, heirs, successors and
assigns, provided, however, that no rights shall inure to the benefit of any
successor of Tenant unless Landlord's written consent to the transfer, if any,
to such successor has first been obtained.
SECTION 39. GOVERNING LAW. This Lease shall be construed, governed
and enforced in accordance with the internal laws of the Commonwealth of
Pennsylvania.
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SECTION 40. SEVERABILITY. If any provisions of this Lease shall be
held to beinvalid, void or unenforceable, the remaining provisions of this Lease
shall in no way be affected or impaired and such remaining provisions shall
continue in full force and effect.
SECTION 41. CAPTIONS. Any headings preceding the text of the several
sections of this Lease are inserted solely for convenience of reference and
shall not constitute a part of this Lease or affect its meaning, construction or
effect.
SECTION 42. GENDER. As used in this Lease the word "person" shall
mean and include, where appropriate, an individual, corporation, partnership or
other entity; the plural shall be substituted for the singular, and the singular
for the plural, where appropriate; and words of any gender shall mean to include
any other gender.
SECTION 43. EXHIBITS. Attached to this Lease and made part hereof
are Exhibits A through G.
SECTION 44. ENTIRE AGREEMENT. This Lease, including the Exhibits
contains the agreements, conditions, understandings, representations and
warranties made between Landlord and Tenant with respect to the subject main
hereof, and may not be modified other than by an agreement in writing signed by
both Landlord and Tenant or their respective successors in interest.
SECTION 45. CORPORATE AUTHORITY. Each individual executing this
Lease on behalf of Tenant represents and warrants that he is duly authorized to
execute and deliver this Lease on behalf of said corporation in accordance with
the duly adopted resolution of the Board of Directors of Tenant or in accordance
with the By-Laws of Tenant, and that this Lease is binding upon said corporation
in accordance with its terms.
SECTION 46. SECURITY DEPOSIT. As additional security for the full
and prompt performance by Tenant of all of the terms and covenants of this
Lease, Tenant has deposited with Landlord the sum of Seven Thousand Five Hundred
Dollars ($7,500) which shall not constitute rent for any month (unless so
applied by Landlord, at Landlord's discretion, on account of Tenant's default).
Tenant shall upon demand restore any portion of said security deposit which may
be applied by Landlord to the cure of any default by Tenant hereunder. To the
extent Landlord has not applied said sum on account of a default, the security
deposit shall be returned (with interest) to Tenant promptly at termination of
this Lease.
SECTION 47. WINDOW TREATMENTS. All window treatments, door coverings
and other exterior decorating and interior decorating visible from the outside
of the Leased Premises is subject to Landlord's prior approval, which approval
shall not be unreasonably withheld or delayed.
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IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
duly executed the day and year first above written.
LANDLORD:
ATTEST: NORTHAMPTON COUNTY NEW JOBS CORP.
By: /s/ Xxxxx Xxxxxxxxx By: /s/ J. Xxx Xxxxxxx
----------------------------- -------------------------
(Assistant) Secretary President
(Corporate Seal)
TENANT:
ATTEST: STC TECHNOLOGIES
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxxxx
-------------------- ----------------------
(Assistant) Secretary President
(Corporate Seal)
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