LEASE AGREEMENT
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LANDLORD: Xxxxxx-Xxxxxxxx Inc.
TENANT: First National Bank of Xxxxxxx County
CENTER: Xxxxxx-Xxxxxxxx Center - PhaseII
ARTICLE I : GRANT AND BASIC TERMS.............................................1
1.1. Basic Terms and Definitions..................................1
1.2. Grant of Leasehold...........................................3
1.3. Commencement of Lease........................................3
1.4. Common Areas.................................................3
1.5. Commencement of Minimum Rent and Additional Rent.............4
1.6. Lease Term...................................................4
1.7. Condition of Leased Premises.................................4
1.8. Tenant's Work................................................5
1.9. Center Provisions............................................5
1.10. Option To Renew.................... .........................5
ARTICLE II : RENT.............................................................5
2.1. Minimum Rent.................................................5
2.2. Percentage Rent. (Intentionally Omitted)....................6
2.3. Gross Receipts Defined. (Intentionally Omitted).............6
2.4. Tenant's Records. (Intentionally Omitted)..................6
2.5. Audit. (Intentionally Omitted).............................6
2.6. Taxes and Insurance..........................................6
2.7. Interest on Delinquent Rent..................................7
2.8. Late Fee.....................................................7
2.9. Returned Checks..............................................7
ARTICLE III : CONDITION OF LEASED PREMISES....................................8
3.1. Landlord's Obligations. [Intentionally Omitted.
See section 1.06]..................8
3.2. Landlord's Work..............................................8
ARTICLE IV : CONDUCT OF BUSINESS..............................................8
4.1. Use of Leased Premises.......................................8
4.2. Operation of Business........................................8
ARTICLE V : COMMON AREAS......................................................8
5.1. Control of Common Areas by Landlord..........................8
5.2. Common Area Maintenance Contribution.........................9
5.3. Definitions..................................................9
ARTICLE VI : ALTERATIONS, LIENS AND SIGNS....................................10
6.1. Alterations.................................................10
6.2. Tenant Shall Discharge All Liens............................10
6.3. Signs, Awnings and Canopies.................................11
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ARTICLE VII : MAINTENANCE OF LEASED PREMISES, SURRENDER AND RULES............11
7.1. Maintenance, Repair, and Replacement by Tenant..............11
7.2. Maintenance by Landlord. [Intentionally omitted]...........12
7.3. Surrender of Leased Premises................................12
7.4. Rules and Regulations.......................................12
ARTICLE VIII : INSURANCE AND INDEMNITY.......................................14
8.1. Casualty Insurance..........................................14
8.2. Waiver of Subrogation.......................................14
8.3. Increase in Fire Insurance Premiums.........................14
8.4. Liability Insurance.........................................14
8.5. Indemnification of Landlord.................................15
8.6. Plate Glass Insurance.......................................15
8.7. Liquor Liability Insurance..................................15
8.8. Insurance Policy............................................15
ARTICLE IX : UTILITIES.......................................................16
9.1. Utility Charges.............................................16
ARTICLE X : PRIORITY OF LEASE................................................16
10.1. Subordination...............................................16
10.2. Notice to Landlord of Default...............................17
10.3. Estoppel Certificate........................................17
10.4. Attornment..................................................18
ARTICLE XI : ASSIGNMENT AND SUBLETTING.......................................18
11.1. Consent Required............................................18
ARTICLE XII : WASTE, GOVERNMENTAL AND INSURANCE REQUIREMENTS.................19
12.1. Waste or Nuisance...........................................19
12.2. Governmental and Insurance Requirements.....................19
12.3. Hazardous Substances........................................19
ARTICLE XIII : PROMOTION FUND................................................21
13.1. [Intentionally Deleted].....................................21
ARTICLE XIV : DESTRUCTION OF LEASED PREMISES.................................21
14.1. Partial Destruction.........................................21
14.2. Substantial Destruction.....................................21
14.3. Destruction of Center. [Intentionally Omitted].............21
ARTICLE XV : EMINENT DOMAIN..................................................21
15.1. Condemnation................................................21
ARTICLE XVI : DEFAULT OF TENANT..............................................22
16.1. Tenant's Default............................................22
16.2. Remedies....................................................23
16.3. Further Remedies of Landlord:...............................24
16.4. Legal Expenses:.............................................27
16.5. Failure to Pay; Interest....................................27
ARTICLE XVII : ACCESS BY LANDLORD............................................27
17.1. Right of Entry..............................................27
ARTICLE XVIII : TENANT'S PROPERTY............................................27
18.1. Taxes on Leasehold..........................................27
18.2. Loss and Damage.............................................28
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18.3. Notice by Tenant............................................28
ARTICLE XIX : HOLDING OVER; SUCCESSORS........................................28
19.1. Holding Over................................................28
19.2. Successors and Assigns......................................28
ARTICLE XX : QUIET ENJOYMENT.................................................28
20.1. Landlord's Covenant.........................................28
ARTICLE XXI : MISCELLANEOUS..................................................29
21.1. Waiver......................................................29
21.2. Accord and Satisfaction.....................................29
21.3. No Partnership..............................................29
21.4. Force Majeure...............................................29
21.5. Landlord's Liability........................................29
21.6. Notices and Payments........................................30
21.7. Financial Statements........................................30
21.8. Captions and Section Numbers................................30
21.9. Definitions.................................................30
21.10. Partial Invalidity..........................................31
21.11. Recording...................................................31
21.12. Entire Agreement............................................31
21.13. Jury Trial; Claims; Survival................................31
21.14. Applicable Law..............................................32
21.15. Consents and Approvals......................................32
21.16. Authority...................................................32
21.17. Interpretation..............................................32
21.18. Brokers.....................................................33
ARTICLE XXII : SECURITY AND RENT DEPOSITS....................................33
22.1. Amount of Security Deposit..................................33
22.2. Use and Return of Security Deposit..........................33
22.3. Rent Deposit................................................34
ARTICLE XXIII : TENANT AND COVENANTS; EASEMENTS..............................34
23.1. Tenant Covenants............................................34
23.2. Landlord Covenant...........................................34
23.3. Easements...................................................34
EXHIBITS
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The Center's Overall Development Plan..........................Exhibit A
Leased Area Diagram............................................Exhibit B
Disclosure For Confession of Judgment..........................Exhibit C
Estoppel Certificate...........................................Exhibit D
Construction Requirements for Tenant's Improvements............Exhibit E
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LEASE AGREEMENT
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THIS LEASE AGREEMENT (the "Lease") is entered into pursuant to the following
terms and conditions:
ARTICLE I: GRANT AND BASIC TERMS
1.1. Basic Terms and Definitions.
---------------------------
This Lease is subject to the following basic terms and definitions:
(a) Date of Lease: May 1, 2007
(b) Landlord: Xxxxxx-Xxxxxxxx Inc
Address: 000 Xxxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Phone: 000 000 0000
Tax ID Number: 23-274000
(c) Tenant: First National Bank of Xxxxxxx County
Branch Address: 000 X Xxxxxxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000
Billing and Notices Address:PO Xxx 000
Xxxx Xxxxxxx, XX 00000
Attn: Vice President Real Estate
Tax I.D. Number: 00-0000000
(d) Center: Xxxxxx-Xxxxxxxx Center - Phase II
Address: 000 X Xxxxxxxxx
Xxxx Xxxxxxx Xxxxxx, XX 00000
(e) Tenant's "Leased Premises": Pad Site highlighted and identified on
Exhibit "B."
(f) Rental Term: 10 years, subject to adjustment pursuant to Section
1.05 and subject to validly exercised Renewal Term(s) consisting of;
Three consecutive five year renewal periods and one four year renewal
period. (the "Renewal Term" or "Renewal Terms.")
(g) Construction Commencement Date: subject to Section 1.06
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Lease Commencement Date: May 1, 2007 subject to Sections 1.02 and 1.05
Lease Expiration Date: April 30, 2017 subject to Sections 1.02 and
1.05 Rent Commencement Date: May 1. 2007 subject to Section 1.04
Once actual dates are known, these dates shall be confirmed in writing
by both parties as required by Section 1.02.
(h) Minimum Monthly Rent: $10,0000.00 (see Section 2.01) Due 1st day
of each month:
See Rent Schedule attached as APPENDIX 1.
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Minimum Annual Rent: $120,000.00 See Rent Schedule attached as
---
APPENDIX 1.
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(i) Option(s) to Renew: See Section 1.09. Three consecutive five year
renewal periods and one four year renewal period
(j) Use of Leased Premises (see Section 4.01): Retail Bank Branch or
other commercial use consistent with the operation or administration
of a state or federally chartered bank.
(k) Trade Name of Tenant (see Section 4.01): First National Bank of
Xxxxxxx County
(l) "Broker": X.X. Xxxxxxxx, Inc. (see Section 21.18)
(m) Security Deposit None (see Section 22.01)
(n) Rent Deposit: None (see Section 22.03)
(o) "Additional Rent": Landlord will provide reasonably detailed
estimates of Tenant's proportionate contributions for Common Area
Operating Costs, and other common charges no later than thirty (30)
days before the Lease Commencement Date.
(p) Late Fee on Rent and Other Charges (See Section 2.08): 5% after 10
days late
(q) Returned Check Fee (See Section 2.09): $50.00
(r) CAM Admin Fee (See Section 5.03): 7.5% of Total CAM Costs
(s) Condition of Leased Premises. See Section 1.06.
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1.2. Grant of Leasehold.
------------------
Landlord hereby demises and leases to Tenant, and Tenant rents from
Landlord, the Leased Premises as depicted on Exhibit "B." The Leased
Premises is within the Center, the overall Development Plan for which is
attached as Exhibit "A," subject to all of the terms and conditions of this
Lease.
1.3. Commencement of Lease.
---------------------
The Lease Term shall commence on the date that Landlord substantially
completes Landlord's Work (hereinafter "Lease Commencement Date"). As used
in this Lease, the terms (i) "Landlord's Work" shall mean the completion of
all common site work applicable to the Leased Premises. "Common Site Work"
shall include the following: (i) clearing and grading the Leased Premises
including the Limited Common Area) to within six inches of grading
standards required by applicable code, (ii) providing temporary and
permanent water (domestic and fire), fire hydrants including lateral lines
to within five (5) feet of the Leased Bank Pad; (iii) installation of fire
hydrants in a number and in such places as the local governing jurisdiction
shall require, including lateral lines within five (5) feet of the Leased
Bank Pad; (iv) providing main trunk sanitary and storm sewer lines,
permanent electric, gas and telephone service within five (5) feet of the
Leased Bank Pad, and underground pipes and off site and on site storm and
flood water detention areas and catch basins; (v) providing the parking
lot, sidewalk and interior roads (including entrances and exit driveways,
but excluding building sidewalks, loading docks and loading ramps) and
curbs associated therewith, all as shown on Exhibit A, (vi) providing a
parking lot lighting system, parking lot identification signs, traffic
control signs and entrance and exit signs; (vii) providing landscaping for
all nonbuilding areas including trees, shrubs, planters within the parking
and driving areas, (viii) off site improvements including any necessary
road improvements, traffic signals, median cuts, acceleration and
deceleration lanes as shown on Exhibit A. "Substantially complete" and
"substantial completion" shall mean the date that the Landlord's Work has
been completed in compliance with all applicable Township regulations,
ordinances, and laws, with the exception of minor items which can be
completed without material interference of the installation of fixtures or
improvements for Tenant's business. Upon substantial completion of the
foregoing and Tenants obtaining all required governing approvals including
approval of The Office of the Comptroller of the Currency (OCC); such
approvals to be obtained no later than April 30, 2007, the parties shall
sign a Tenant Estoppel Certificate in the form attached hereto as Exhibit
"D" that establishes the Lease Commencement Date, Rent Commencement Date,
and expiration of the Term and Renewal Periods.
1.4. Common Areas.
------------
(a) Use of Common Areas. The use and occupation by Tenant of the
Leased Premises shall include the use, in common with others entitled
thereto, of the Common Areas (as defined in Section 5.03), employees'
parking areas, service roads, loading facilities, sidewalks within the
Center (other than sidewalks appurtenant to Tenant's Building) and customer
car parking areas of the Center, and such other facilities as may be
designated from time to time by Landlord, subject, however, to the terms
and conditions of this Lease. Landlord may designate certain portions of
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the parking areas as reserved for use of certain tenants or customers of
certain tenants. All parking rights are also subject to all applicable
local rules, regulations, and ordinances. Landlord shall not permit any
construction, plantings or truck or delivery parking within the
cross-hatched area on Exhibit "B" that will impede or obstruct any site
lines or vehicle or pedestrian vision of the Building or Tenants approved
signage.
(b) Limited Common Area. Limited Common Area is that area depicted on
Exhibit "B," attached hereto, that is designed exclusively for use by
Tenant in connection with the Leased Premises. Where applicable, it is
specifically intended that Tenant's parking areas and sidewalks shall be
considered part of the Limited Common Area and any "drive-thru" window
facilities, sidewalks and loading dock areas appurtenant to Tenant's
Building shall be considered part of the Leased Premises. Costs for
maintenance, repair, replacement and any and all other expenses associated
with the Limited Common Elements shall, unless otherwise determined by
Landlord, be considered part of the costs of the Common Areas and shared
proportionately among all tenants within the Center.
1.5. Commencement of Minimum Rent and Additional Rent;Delay Payment
--------------------------------------------------------------
Tenant's obligation to pay Minimum Rent shall commence on May 1, 2007
(hereinafter the "Rent Commencement Date"). Tenant's obligation to pay
Additional Rent shall also commence on the Rent Commencement Date.
Concurrently with the date of this Lease, Tenant shall pay Landlord
Eighty Thousand Dollars ($80,000) as payment to Landlord of compensation
---------------- -------
lost by Landlord by reason of Tenant's extended delay selecting the Leased
Premises for a bank branch site and entering into this Lease.
1.6. Lease Term.
----------
The term of this Lease shall commence on the Lease Commencement Date,
continue for Ten (10) years beginning on the Rent Commencement Date
(subject, if applicable, to validly exercised Renewal Terms). In the event
the Rent Commencement Date is other than the first day of the month, the
period between the Rent Commencement Date and the first full day of the
first full month next succeeding shall be added to the Rental Term, and
therefore, the first year of the Rental Term shall be deemed to be extended
to include such partial month and the following twelve (12) months so as to
end on the last day of the month.
1.7. Condition of Leased Premises.
----------------------------
Landlord shall make all commercially reasonable efforts to complete
the Center within eighteen (18) months from the date that adequate public
sewage capacity is available for the Center. Tenant shall take and use the
Leased Premises on an "as is" basis, provided that Landlord shall warrant
that the Leased Premises shall be delivered to Tenant in substantial
compliance with all building and other applicable municipal codes or laws,
which warranty shall remain in effect for a period of one (1) year after
the Rent Commencement Date.
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1.8. Tenant's Work.
-------------
Other than Landlord's Work, Tenant shall make all other necessary
improvements to the Leased Premises to operate Tenant's business,
including, but not limited to, the construction of a building on the Leased
Premises and the installation of sewer, water and any other utilities not
provided by Landlord as part of Landlord's Work ("Tenant's Work"). Tenant's
Work shall be subject at all times to Landlord's approval and all of the
terms and conditions contained in Exhibit "E" attached to, and incorporated
into, this Lease, and any limitations expressed in the notes listed on
Exhibit "B."
1.9. Center Provisions.
-----------------
No rights or remedies shall accrue to Tenant arising out of the
failure of Landlord to construct or lease any other parts of the Center or
from any changes in occupancy by tenants in the Center. It is understood
that said Exhibit "A" sets forth the general layout of the Center but shall
not be deemed as a warranty, representation or agreement on the part of
Landlord that the Center layout will be exactly as depicted on said
Exhibit, and Landlord specifically reserves the right from time to time and
without the consent of Tenant: (i) to change the number, size, height
(including additional stories) or locations of the buildings or common
areas in the Center as Landlord may deem proper; (ii) to change or modify
any means of ingress or egress; (iii) construct building(s) and/or kiosk(s)
on or in the common area; or (iv) to add additional land or buildings or
both to the Center.
1.10. Option To Renew.
---------------
Provided Tenant is not in default of any material term, condition or
covenant contained in this Lease beyond any applicable cure period, Tenant
shall have the option of renewing this Lease for the Renewal Term or
Renewal Terms on the same terms and conditions as provided herein. An
option for a successive Renewal Term shall only be capable of exercise in
the event that the option for the preceding Renewal Term has been validly
exercised.
Notice of the exercise of such Option to Renew shall be given by
Tenant to Landlord in writing no later than one hundred eighty (180) days
prior to expiration of the Original Term or the previous Renewal Term.
ARTICLE II : RENT
2.1. Minimum Rent.
------------
Minimum Rent hereunder shall be as set forth in Section 1.00(h) and
shall be payable in monthly installments in advance, without set off, on
the first day of each and every month throughout the Lease Term from the
Rent Commencement Date at the office of Landlord or at such other place
designated by Landlord, without any prior demand. Minimum Rent for any
fractional month shall be prorated and payable in advance. For purposes of
this Lease, the Gross Leasable Area of the Leased Premises shall be deemed
to be that set forth in Section 1.00(e).
5
2.2. Percentage Rent. (Intentionally Omitted)
---------------
2.3. Gross Receipts Defined. (Intentionally Omitted)
----------------------
2.4. Tenant's Records. (Intentionally Omitted)
----------------
2.5. Audit. (Intentionally Omitted)
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2.6. Taxes and Insurance.
-------------------
Tenant shall pay to Landlord as Additional Rent (i) its proportionate
share of real estate taxes, special taxes and assessments and all insurance
for the Center (excluding any tenants separately taxed or charged for
insurance) and (ii) any separate or special assessment related to the
Building. If the ground that constitutes the Leased Premises shall be
assessed as a separate parcel for real estate tax purposes, then,
notwithstanding the obligations described in subsection (i), above, Tenant
shall (in lieu of the obligation to pay a proportionate share of real
estate taxes applicable to the Center) pay 100% of any taxes on the Leased
Premises directly to the local taxing jurisdiction on or before the last
day before any penalties or interest for late payment may be assessed or
charged. Insurance shall include all risk coverage, fire insurance for the
full replacement value of the improvements, extended coverage and all other
perils coverage, loss of rents coverage, plus all endorsements and other
coverages required as the result of the operation of the Center by Landlord
and all Tenants. Landlord shall notify Tenant of the amount of such
charges, including with such notification copies of tax and insurance
bills, and Tenant shall pay Landlord such amounts within fifteen (15) days
from the date of notice to it by Landlord. Tenant's proportionate share is
the fraction, the numerator of which is the Gross Leasable Area in the
Leased Premises and the denominator of which is the total Gross Leasable
Area of the Center (excluding any tenants separately taxed or charged for
insurance), provided that if the taxes for the Center are increased
materially because of assessment of Tenant's improvements at a higher rate
than other tenants in the Center, Tenant agrees to pay any such excess
taxes and provided further that Tenant shall be responsible for all
additional fire insurance premiums as set forth in Section 8.03. Landlord,
at Landlord's option, may xxxx Tenant on a monthly basis based on
one-twelfth (1/12) of the estimated annual amount for taxes and insurance
as estimated by Landlord, and Tenant shall pay said cost for tax and
insurance with monthly Minimum Rent on the first day of each month in
advance. The initial estimate shall be as set forth in Section 1.00(o). In
the event that Tenant's payments in such year exceed Tenant's proportionate
share of the actual tax and insurance costs, Tenant shall be credited the
amount of the overpayment. If Tenant's proportionate share of the actual
tax and insurance costs exceeds the payments made in such year by Tenant,
Tenant shall pay the difference to Landlord within thirty (30) days of
receiving a detailed statement therefor from Landlord or Tenant shall be in
default of the Lease. In the event Tenant does not make said payment
monthly, Tenant shall be in default of this Lease. Additionally, with
respect to taxes:
(a) Right to Contest Assessments. Landlord may contest any and all
-----------------------------
such real estate taxes. If the result of any such contest shall be a
reduction in the amount of the real estate taxes so contested, that portion
of any refund, reduction, credit or recovery from the taxing authorities
with respect to such real estate taxes which is in the same proportion of
the total refund or recovery as Tenant's share of taxes, shall belong to
6
Tenant, and the balance shall belong to Landlord. The reasonable cost of
any such contest shall be paid as Additional Rent in the same proportionate
share as the real estate taxes are paid.
(b) Real Estate Tax. Real estate tax means: (i) any fee, license fee,
---------------
license tax, business license fee, commercial rental tax, levy, charge,
assessment, penalty or tax imposed by any taxing or judicial authority
against the Center or land upon which the Center is located; (ii) any tax
or charge for fire protection, streets, sidewalks, road maintenance, refuse
or other services provided to the Center by any governmental agency; (iv)
any tax imposed upon this transaction, or based upon a re-assessment of the
Center due to a change in ownership or transfer of all or part of
Landlord's interest in the Center; and (v) any charge or fee replacing any
tax previously included within the definition of real property tax.
2.7. Interest on Delinquent Rent.
---------------------------
All delinquent Minimum Rent and Additional Rent and all other charges
due under this Lease shall accrue interest at a rate equal to the maximum
amount permitted by law, irrespective of and in addition to any Late Fees
charged pursuant to Article 2.08 of this Lease, from the due date of such
payment and shall constitute other rent payable by Tenant under this Lease
and shall be paid by Tenant to Landlord upon demand. Payment shall not be
deemed received if Tenant's payment is not actually collected (such as
charges for returned checks).
2.8. Late Fee.
--------
In the event that any monthly payment of rent provided for in this
Lease is received by Landlord on or after the tenth (10th) day of the
month, or any other charge provided for in this Lease shall become overdue
for a period in excess of ten (10) days, Tenant shall pay to Landlord a
late charge of five ($.05) cents for each dollar ($1.00) overdue, each
month that it remains overdue, to cover the extra expense involved in
handling delinquent payments.
2.9. Returned Checks.
---------------
In the event Landlord receives a check from Tenant written on
insufficient funds, Landlord may charge Tenant a $50.00 fee to reimburse
Landlord for its costs and expenses. In the event Tenant has two (2) checks
returned by the bank, for any reasons whatsoever, Landlord has the right to
require all future payments from Tenant to be paid in either certified
funds, a bank check or money order.
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ARTICLE III : CONDITION OF LEASED PREMISES
3.1. Landlord's Obligations. [Intentionally Omitted. See section 1.06].
----------------------
3.2. Landlord's Work.
---------------
The obligation to perform the Landlord's Work described in Section
1.02 shall constitute Landlord's sole obligation to prepare the Leased
Premises for occupancy by the Tenant, unless otherwise agreed by the
Landlord in writing.
ARTICLE IV : CONDUCT OF BUSINESS
4.1. Use of Leased Premises.
----------------------
Tenant shall use the Leased Premises solely for the purpose set forth
in Section 1.00(j).
4.2. Operation of Business.
---------------------
Tenant shall use its best efforts to open for business in accordance
with Section 4.1 within four (4) months after the Lease Commencement Date.
Tenant shall operate the Leased Premises in good faith during the Term
hereof and be open for business to the general public at least six days for
a minimum of 40 hours per week. Tenant agrees not to operate another
location that is open for business to the general public for the same use
as described in 1.00(j) within a two (2) mile radius of the Center during
the Term of this Lease (excluding any In-Store branch operation, which will
be allowed under this restriction)
ARTICLE V : COMMON AREAS
5.1. Control of Common Areas by Landlord.
-----------------------------------
The Common Areas as defined in this Lease shall at all times be
subject to the exclusive control and management of Landlord, and Landlord
shall have the right from time to time to establish, revoke, modify and
enforce reasonable rules and regulations with respect to all or any part of
said facilities. Landlord shall also have the right to close all or any
portion of said areas or facilities to such extent as may, in the opinion
of Landlord's counsel, be legally sufficient to prevent a dedication
thereof or the accrual of any rights to any person or the public therein;
and to do and perform such other acts in and to said areas and
improvements, and/or revise and develop the same, as Landlord shall
determine to be advisable, with a view to the improvement of the
convenience and use thereof by the tenants of the Center and their
customers, provided proper access to the Leased Premises is maintained.
Notwithstanding the foregoing, Landlord will in all cases maintain access
to Xxxxx 0 xxx Xxxxxx Xxxx for ingress and egress from all Common Areas.
Additionally, Landlord shall create and maintain a Site and Directory Sign
(Appendix II) and Tenants identity shall appear at the top of the sign and
occupy 1/6th (.167%) of the Signs capacity. Concurrently with the date of
this Lease, Landlord and the owner ("Adjacent Owner") of the lot on which
is located the Access Easement shown on Exhibit "A" (the "Access Easement)
8
shall execute and record in the Recorder of Deeds Office of Xxxxxxx County
an access easement (reasonably acceptable to Tenant) granting non-exclusive
perpetual vehicular access to and from the Leased Premises and Bayard Road.
5.2. Common Area Maintenance Contribution.
------------------------------------
During each calendar year or any portion thereof during the lease
term, Tenant will pay to Landlord as Additional Rent, subject to the
limitations hereinafter set forth, a proportion of the common area
maintenance costs hereinafter defined based upon the ratio that the square
feet of Gross Leasable Area in Leased Premises leased to Tenant herein
bears to the total square feet of all of the Gross Leasable Area leased and
available for lease to all tenants in the Center, excluding for any item of
costs the square footage of Gross Leasable Area allocated to any tenant
responsible for directly paying such costs; provided, however, if any item
of common area maintenance cost for the Center is increased materially
because of Tenant's use, Tenant shall additionally pay for such excess
cost. Tenant's share of such costs shall be estimated by Landlord on an
annual basis for each calendar twelve (12) month period ending on December
31, prorating fractional years. The initial estimate shall be as set forth
in Section 1(o). Tenant shall pay such estimated charge in monthly
installments on the first day of each month in advance, and shall pay any
excess charge within thirty (30) days of receiving a detailed statement
therefor from Landlord or Tenant shall be in default of the Lease. In the
event that Tenant's payments in such year exceed Tenant's proportionate
share of the actual common area maintenance costs, Tenant will be credited
the amount of the overpayment. Notwithstanding the foregoing, Tenants share
of Common Area Charges shall not include any brokers commission for
releasing.
5.3. Definitions.
-----------
For the purpose of this paragraph, "Common Area Maintenance Costs"
means the total costs and expense incurred in operating, managing,
maintaining, repairing, relocating, modifying, renovating and replacing the
Common Areas hereinafter defined, including without limitation the costs of
maintaining flags, banners, retaining walls, fences, bird houses, bridges,
equipment and fees for the operation of loud speakers and other equipment
supplying music to Common Areas, detention ponds, fire sprinkler system,
utility lines and resurfacing or patching the parking areas and labor
associated with line painting, sidewalks and curbs, security and traffic
control, security alarm systems, exterior building painting and repairs,
public liability and umbrella insurance, gardening, watering and
landscaping, lighting, maintenance of sanitary control, all costs for
utilities to Common Areas, removal of snow (including removal of snow from
roof and canopy), ice, drainage, rubbish, and other refuse, costs to remedy
or comply with governmental and/or hazardous or environmental and hazardous
waste matters, or repair or installation of equipment for energy-saving or
safety purposes, reserves for future maintenance and repair work (which
Tenant hereby authorizes Landlord to use as necessary), any costs
associated with any merchants' association for the Center, Christmas and
seasonal decorations, depreciation on equipment and machinery used in
maintenance, cost of personnel required to provide such services, including
all wages, workmen's compensation insurance, employee benefits,
unemployment insurance, social security insurance, medical insurance and
all other taxes and costs of maintaining such employees, and such other
9
items of cost and expense which are relatable to proper maintenance of the
Common Areas, plus seven and one half percent (7.5%) of all of the
foregoing costs to cover the administrative cost relative to the Common
Areas.
"Common Areas" means all areas, space, equipment, and special services
provided by Landlord for common or joint use and benefit of the occupants
of the Center, their employees, agents, servants, customers and invitees,
including without limitation parking areas, access roads, driveways,
retaining walls, fences, bird houses, bridges, landscaped and vacant areas,
detention ponds, loading facilities, pedestrian malls, walkways, ramps,
wash rooms, fountains, shelters, signs, security, lighting fixtures and
equipment, cost of utility service, and the areas appurtenant to each of
the aforesaid, the Limited Common Area and any other areas maintained for
the benefit of the Center. Landlord shall have the right to modify the
Common Areas from time to time as deemed reasonable by Landlord.
ARTICLE VI : ALTERATIONS, LIENS AND SIGNS
6.1. Alterations.
-----------
The requirements of this Section 6.1 shall apply to Tenant's Work as
described in Section 1.7 and any alterations thereafter. Tenant shall not
make or cause to be made any alterations, including additions and
improvements, to the Leased Premises or to any exterior signs, shades or
awnings that are inconsistent with the style and features intended by
Landlord to be employed within the Center. Any alterations shall be subject
to Landlord's written approval and made at Tenant's sole expense. Any roof
penetrations necessitated by Tenant's use of Leased Premises shall be
performed by Landlord's contractor at Tenant's expense only upon receipt of
Landlord's written approval. Tenant shall provide its own trash containers
for construction debris; use service entrances to the Leased Premises, if
any; conduct no core drillings during business hours; and disrupt other
tenants as little as possible. Tenant shall secure any and all governmental
permits, approvals or authorizations required in connection with any such
work and shall hold Landlord harmless from any and all liability, costs,
damages, expenses (including attorney's fees) and liens resulting
therefrom. All alterations (expressly including all light fixtures and
floor coverings, heating, ventilating, air conditioning, plumbing,
lighting, and electrical systems, except: trade fixtures, trade appliances
and trade equipment that do not become a part of the Leased Premises),
shall immediately become the property of Landlord. Tenant shall utilize
only licensed contractors or subcontractors.
6.2. Tenant Shall Discharge All Liens.
--------------------------------
Tenant shall promptly pay its contractors and materialmen for all work
done and performed by Tenant, so as to prevent the assertion or imposition
of liens upon or against the Leased Premises, and shall, upon request
provide Landlord with lien waivers, and should any such lien be asserted or
filed, Tenant shall bond against or discharge the same within sixty (60)
days after written request by Landlord. In the event Tenant fails to remove
or bond said lien within said sixty (60) days, Landlord may, at its sole
10
option, elect to satisfy and remove the lien by paying the full amount
claimed or otherwise, without investigating the validity thereof, and
Tenant shall pay Landlord upon demand the amount paid out by Landlord in
Tenant's behalf, including Landlord's costs and expenses with interest or
Tenant shall be in default hereunder. Landlord's election to discharge
liens as provided hereunder shall not be construed to be a waiver or cure
of Tenant's default hereunder.
6.3. Signs, Awnings and Canopies.
---------------------------
Tenant will not, without Landlord's prior written consent, place or
suffer to be placed or maintained upon the roof or on any exterior door,
wall, window or sidewalk of the Leased Premises, any sign, awning or
canopy, or advertising matter or other thing of any kind, including
satellite dishes or other communications systems, and will not without such
consent place or maintain any decoration, lettering or advertising matter
on the glass of any window or door of the Leased Premises. All exterior
signs shall be approved in advance by Landlord, which approval shall not be
unreasonably withheld, delayed, or conditioned as long as such signage
complies with all applicable zoning and municipal regulations applicable to
such signage, and is consistent with Tenant's original designs (completed
as part of Tenant's work hereunder), or the type of signs otherwise
approved by Landlord within the Center. All signs, awnings, canopies,
decorations, lettering, advertising matter or other thing so installed by
Tenant shall be professionally made and tasteful in design and shall at all
times be maintained by Tenant, at its expense, in good condition and
repair.
ARTICLE VII : MAINTENANCE OF LEASED PREMISES, SURRENDER AND RULES
7.1. Maintenance, Repair, and Replacement by Tenant.
----------------------------------------------
Tenant shall, at its expense, at all times repair, maintain, and
replace (a) the roof, exterior walls, and foundations of the building
constructed by Tenant on the Leased Premises (the "Building"), the interior
of the Building, together with exterior entrances, all glass and all window
moldings, (b) all fixtures, partitions, ceilings, floor coverings and
utility lines in the Leased Premises, and all plumbing and sewage
facilities within the Leased Premises including free flow up to utility
owned sewer lines, and (c) all doors, door openers, equipment, machinery,
appliances, signs and appurtenances thereof (including lighting, heating,
air conditioning, and plumbing equipment and fixtures), in conformity with
governmental regulations and all rules and regulations of the Board of Fire
Underwriters, in good order, condition, maintenance and repair. If any item
which Tenant is obligated to repair cannot be fully repaired and more than
two (2) years are left in the Term, Tenant shall promptly replace such
item. Tenant shall be responsible for any structural, interior and exterior
alterations and/or repairs to the Leased Premises required by any
governmental entity or insurance carrier because of Tenant's specific use
of the Leased Premises or arising from damage caused by Tenant, its
employees, servants or agents. If Tenant be required to make any
alterations or improvements to the Leased Premises, Tenant shall proceed
with same at its own cost. Tenant may contract with, at its sole cost, a
reputable service company to perform routine seasonal preventive
maintenance on the HVAC system. Tenant shall provide evidence of any such
contract to Landlord within thirty (30) days of its effective and shall
also deliver copies of all renewal contracts to Landlord as they occur. If
Tenant refuses or neglects to commence or complete repairs, maintenance,
preventive maintenance contract or replacements promptly and adequately,
Landlord may make or complete said repairs, maintenance or replacements and
Tenant shall pay the cost thereof to Landlord upon demand.
11
7.2. Maintenance by Landlord. [Intentionally omitted].
-----------------------
7.3. Surrender of Leased Premises.
----------------------------
At the expiration of the tenancy hereby created, Tenant shall
peaceably surrender the Leased Premises, including all alterations,
additions, improvements and repairs made thereto; all interior partition
walls; any power wiring or power panels; lighting or lighting fixtures;
wall coverings; drapes, blinds or other window coverings; carpets or other
floor coverings; or other similar building operating equipment. The Leased
Premises shall be left broom clean and in good condition and repair,
reasonable wear and tear excepted. Tenant shall remove all its property not
required to be surrendered to Landlord before surrendering the Leased
Premises (including trade fixtures, trade equipment, signs, decorations and
trade personal property) as aforesaid and shall repair any damage to the
Leased Premises caused thereby. Any personal property remaining in the
Leased Premises at the expiration of the lease period shall be deemed
abandoned by Tenant, and Landlord may claim the same and shall in no
circumstances have any liability to Tenant therefor. The cost of removing
such items which are abandoned by Tenant shall be charged to Tenant. Upon
termination, Tenant shall also surrender all keys for the Leased Premises
to Landlord and, if applicable, inform Landlord of any combinations of
locks or safes in the Leased Premises. All utilities are to be transferred
into Landlord's name, effective the date of Surrender. In no event shall
the utility service ever be turned off. If services are terminated, Tenant
shall be solely responsible for any resulting damage to the Premises. If
the Leased Premises are not surrendered at the end of the term as
hereinabove set out, Tenant shall indemnify Landlord against loss or
liability resulting from delay by Tenant in so surrendering the Leased
Premises, including without limitation claims made by the succeeding tenant
founded on such delay. Tenant's obligation to observe or perform this
covenant shall survive the expiration or other termination of the Lease
Term.
7.4. Rules and Regulations.
---------------------
Tenant agrees as follows:
(a) The delivery or shipping of goods, merchandise, supplies and
fixtures to and from the Leased Premises shall be subject to such rules and
regulations as in the judgment of Landlord are necessary for the proper
operation of the Center.
(b) No loud speakers, televisions, phonographs, radios or other
devices shall be used in a manner so as to be heard or seen outside the
Leased Premises without the prior written consent of Landlord.
(c) Tenant shall not place or permit any obstructions, signage or
merchandise in the outside areas immediately adjoining the Leased Premises
or other Common Areas and shall not use such areas for business purposes
other than for ingress and egress. So called "Sidewalk Sales" are
prohibited. Any unauthorized use of the sidewalk shall result in a Two
Hundred Fifty ($250.00) Dollar per day penalty to Tenant for each
infraction, in addition to any and all other rights afforded the Landlord
pursuant to this Lease.
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(d) Tenant and Tenant's employees shall park their cars only in those
portions of the parking area designated for that purpose by Landlord.
Tenant and Tenant's employee's cars not parked in the designated areas may
be towed, at the owner's expense and/or Tenant shall be charged $50.00 per
day for each and every day of the infraction.
(e) Tenant shall have full responsibility for protecting the Leased
Premises and the property located therein from theft and robbery.
(f) Tenant shall not permit on the Leased Premises any act or practice
which is unlawful, immoral, or which might injure the reputation of the
Center.
(g) Tenant and Tenant's employees and agents shall not solicit
business in the parking or other Common Areas, nor shall Tenant distribute
or place handbills or other advertising matter in or on automobiles parked
in the parking areas or in other Common Areas.
(h) Tenant shall not conduct any auction, fire, bankruptcy sales or
close out sales in the Leased Premises.
(i) Tenant shall keep the Leased Premises free and clear of rodents,
bugs and vermin, and Tenant shall use, at its cost and at such intervals as
Landlord shall reasonably require, a reputable pest extermination
contractor to provide extermination services in the Leased Premises.
(j) Tenant shall keep the Leased Premises and adjacent Common Areas
orderly, neat, clean and free from rubbish and trash at all times and to
permit no refuse to accumulate around the exterior of the Leased Premises.
Tenant shall not burn any trash, rubbish or garbage in or about the Leased
Premises. Trash shall be stored in a sanitary and inoffensive manner inside
the Leased Premises or in screened areas approved by Landlord, and Tenant
shall cause the same to be removed at reasonable intervals unless Landlord
initiates a Center-wide trash removal and recycling program (which may or
may not include any or all of the anchor tenants) in which case Tenant
shall participate fully and such cost shall be billed as part of the Common
Area maintenance as described in Article V.
(k) The Leased Premises shall be open for business at Tenant's
discretion, provided that Tenant meets the minimum standards described in
Section 4.02. Tenant shall not be required to be open for business on legal
holidays or Sundays.
(l) To use or permit the use of the Common Areas by others to whom
Landlord may grant or may have granted such rights in such manner as
Landlord may from time to time designate, including but not limited to
truck and trailer sales and special promotional events.
(m) Tenant shall not use, nor permit any part of the Premises to be
used, for any residential purposes whatsoever, for any period of time, no
matter how brief.
13
Landlord reserves the right from time to time to amend or supplement
the foregoing rules and regulations and to adopt and promulgate reasonable
additional rules and regulations applicable to the Leased Premises. Notice
of such rules and regulations and amendments and supplements thereto, if
any, shall be given to Tenant in writing. Tenant agrees to comply with all
such rules and regulations, and Tenant shall be responsible for the
observance of these rules and regulations by Tenant's employees, agents and
invitees. The foregoing rules are solely for the benefit of Landlord, and
Landlord shall have no obligation to enforce such rules for the benefit of
Tenant. Landlord, at its option, may waive certain rules with respect to
individual tenants. If Tenant violates any rule, Landlord may notify Tenant
that Tenant is in Default.
ARTICLE VIII : INSURANCE AND INDEMNITY
8.1. Casualty Insurance.
------------------
Tenant shall at all times keep and maintain in force and effect its
own insurance coverage, protecting it from loss, damage or injury by
whatever means, with respect to all furniture, fixtures, machinery,
equipment, stock in trade, and all other items kept, used, or maintained by
Tenant in, on, or about the Leased Premises.
8.2. Waiver of Subrogation.
---------------------
Each of the parties hereto does hereby release the other party hereto
from all liability for damage due to any act or neglect of the other party
(except as hereinafter provided) occasioned to property owned by said
parties which is or might be incident to or the result of a fire or any
other casualty against loss from which either of the parties is now
carrying or hereafter may carry insurance; provided, however, that the
releases herein contained shall not apply to any loss or damage occasioned
by the willful acts of either of the parties hereto. The parties further
covenant that any insurance obtained on their respective properties shall
contain an appropriate provision whereby the insurance company or companies
consent(s) to the mutual release of liability contained in this paragraph.
8.3. Increase in Fire Insurance Premiums.
-----------------------------------
Tenant agrees not to keep, use, sell or offer for sale, in or upon the
Leased Premises, any articles or goods which may be prohibited by the
standard form of fire insurance policy. Tenant agrees to pay upon demand
any increase in premium for fire and extended coverage insurance and all
other perils that may be charged during the term of this Lease on the
amount of such insurance which may be carried by Landlord on said premises,
or the building of which the same are a part, resulting from the use of the
Leased Premises by Tenant, whether or not Landlord has consented to such
use.
8.4. Liability Insurance.
-------------------
Upon taking possession of Leased Premises, Tenant shall, during the
entire term hereof, keep in full force and effect a policy of public
liability and property damage insurance with respect to the Leased Premises
and the business operated by Tenant and permitted subtenants of Tenant in
the Leased Premises in which the limits of coverage shall not be less than
$1,000,000 per occurrence for bodily and/or personal injuries, and in which
the coverage for property damage liability shall not be less than
$1,000,000 or a combined single limited of $1,000,000 with limits to be
increased as reasonably requested by Landlord from time to time.
14
8.5. Indemnification of Landlord.
---------------------------
Tenant will protect, indemnify, defend and save harmless Landlord, its
agents and servants, to the extent permitted by law, from and against any
and all claims, actions, damages, suits, judgments, decrees, orders,
liability and expense (including costs and attorney fees) in connection
with loss of life, bodily injury, personal injury and/or damage to property
of whatever kind or character, howsoever caused, arising from or out of any
occurrence in, upon or about the Leased Premises, or in the occupancy or
use by Tenant of the Leased Premises or any part thereof, or occasioned
wholly or in part by any act or omission of Tenant, its agents,
contractors, employees, servants, sublessees or concessionaires,
notwithstanding any possible negligence (whether sole, concurrent or
otherwise) on the part of Landlord, its agents, contractors, employees or
servants.
8.6. Plate Glass Insurance.
---------------------
Tenant shall keep and maintain in force during the term hereof, plate
glass insurance upon windows and doors in the Leased Premises.
8.7. Liquor Liability Insurance.
--------------------------
In the event that at any time during the term of this Lease or any
extension or renewal thereof, beer, wines or other alcoholic liquors or
beverages are sold or given away upon or from the Leased Premises (it being
understood and agreed, however, that the foregoing provision shall not
authorize the use of the Leased Premises for such purposes without the
express consent of Landlord being set forth otherwise in this Lease),
Tenant shall, at its sole expense, obtain, maintain and keep in force,
adequate liquor liability insurance protecting Tenant and Landlord in
connection therewith within policy limits acceptable to Landlord. In the
event Tenant shall fail to procure such insurance where applicable,
Landlord may procure the same at Tenant's expense. In the event such
insurance is not carried, sales of the foregoing products shall be
suspended until such coverage is in force.
8.8. Insurance Policy.
----------------
The insurance required in this Article VIII shall be in form approved
by Landlord. The policy shall name Tenant and Landlord as additional
insured and shall contain a clause that insurer shall not cancel,
materially modify or fail to renew the insurance without first giving
Landlord thirty (30) days prior written notice. The insurance shall be with
an insurance company approved by Landlord, authorized to do business in the
State and have a policyholder's rating of no less than "A" in the most
current edition of Best's Insurance Reports. A copy of the policy or a
certificate of insurance shall be delivered to Landlord prior to Tenant
taking possession of Leased Premises. The policy shall insure Tenant's
performance of the indemnity provisions of Section 8.05 hereof.
15
ARTICLE IX : UTILITIES
9.1. Utility Charges.
--------------------
Tenant shall be solely responsible for and promptly pay all charges
for heat, water, gas, sewer, electricity, or any other utility or service
used on or attributable to the Leased Premises. Landlord may elect to
furnish any one or more of the above utility services, in which event
Tenant shall accept and use such services as furnished by Landlord.
Landlord's charges therefor shall not exceed the rates charged by local
public utility companies to retail customers for the same or similar
services. If any of the above utility services are billed directly to
Landlord by utility companies/authorities, Landlord may estimate Tenant's
usage for each twelve month period and Tenant shall pay such estimated
charge(s) in monthly installments on the first day of each month in advance
and shall pay any excess charge within thirty (30) days from receipt of a
detailed statement from Landlord. In the event that Tenant's payments
exceed Tenant's actual costs for any given year, Tenant will be credited
the amount of the overpayment. The initial estimate shall be as set forth
in Section 1.00(q). In no event shall Landlord be liable for an
interruption or failure in the supply of any such utilities or services
supplied by Landlord because of necessary repairs or improvements or for
any cause beyond Landlord's control. Landlord shall pay for the initial
water and sewer tap-in fees not to exceed one (1) Estimated Dwelling Unit
(EDU) each. Any additional water and sewer tap-in fees and additional water
and/or sewer assessments incurred by Tenant shall be paid for solely by
Tenant.
ARTICLE X : PRIORITY OF LEASE
10.1. Subordination.
-------------
Landlord shall have the right to transfer, mortgage, assign, pledge,
and convey in whole or in part the Leased Premises, the Center, this Lease
and all rights of Landlord existing and to exist, and rents and amounts
payable to it under the provisions hereof; and nothing herein contained
shall limit or restrict any such right, and the rights of Tenant under this
Lease shall be subject and subordinate to all instruments executed and to
be executed in connection with the exercise of any such right of Landlord,
including, but not limited to, the lien of any mortgage, deed of trust or
security agreement now or hereafter placed upon the Leased Premises and the
Center and to all renewals, modifications, consolidations, participations,
replacements and extensions thereof, subject, however, to the condition
that the holder of any mortgage or other lien on, or including, the Leased
Premises to which this Lease is subordinate shall deliver to Tenant a
subordination, non-disturbance and attornment agreement in form reasonably
satisfactory to Tenant and such holder. Said subordination shall not
require the agreement or consent of Tenant, but Tenant covenants and
agrees, if requested, to execute and deliver within fifteen (15) days of
receipt from Landlord such further instruments subordinating this Lease to
the lien of any such mortgage, deed of trust or security agreement as shall
be requested by Landlord and/or any mortgage, proposed mortgagee or holder
of any security agreement, and Tenant hereby irrevocably appoints Landlord
as its attorney-in-fact to execute and deliver any such instrument for and
in the name of Tenant. Notwithstanding anything set out in this Lease to
the contrary, in the event the holder of any mortgage or deed of trust
elects to have this Lease superior to its mortgage or deed of trust, then,
upon Tenant being notified to that effect by such encumbrance holder, this
Lease shall be deemed prior to the lien of said mortgage or deed of trust,
whether this Lease is adopted prior to or subsequent to the date of said
mortgage or deed of trust.
16
10.2. Notice to Landlord of Default.
-----------------------------
In the event of any act or omission by Landlord which would give
Tenant the right to terminate this Lease or claim a partial or total
eviction, or make any claim against Landlord for the payment of money,
Tenant will not make such claim or exercise such right until it has given
written notice of such act or omission to (a) Landlord; and (b) the holder
of any mortgage, deed of trust or other security instrument as to whom
Landlord has instructed Tenant to give copies of all of Tenant's notices to
Landlord; and after thirty (30) days shall have elapsed following the
giving of such notice, during which such parties or any of them has not
commenced diligently to remedy such act or omission or to cause the same to
be remedied. Nothing herein contained shall be deemed to create any rights
in Tenant not specifically granted in this Lease or under applicable
provisions of law.
10.3. Estoppel Certificate.
--------------------
Tenant agrees, at any time, and from time to time, upon not less than
ten (10) days' prior notice by Landlord, to execute, acknowledge and
deliver to Landlord, an estoppel certificate in the form attached as
Exhibit D (or such other form provided by Landlord) in writing addressed to
Landlord or other party designated by Landlord certifying that this Lease
is in full force and effect (or, if there have been modifications, that the
same is in full force and effect as modified and stating the
modifications), stating the actual commencement and expiration dates of the
Lease, stating the dates to which rent, and other charges, if any, have
been paid, that the Leased Premises have been completed on or before the
date of such certificate and that all conditions precedent to the lease
taking effect have been carried out, that Tenant has accepted possession,
that the Lease Term has commenced, Tenant is occupying the Leased Premises
and is open for business, stating whether or not there exists any default
by either party in the performance of any covenant, agreement, term,
provision or condition contained in this Lease, and, if so, specifying each
such default of which the signer may have knowledge and the claims or
offsets, if any, claimed by Tenant, and any other reasonable information
requested by Landlord or other party designated by Landlord; it being
intended that any such statement delivered pursuant hereto may be relied
upon by Landlord or a purchaser of Landlord's interest and by any mortgagee
or prospective mortgagee of any mortgage affecting the Leased Premises or
the Center. If Tenant does not deliver such statement to Landlord within
such ten (10) day period, Landlord and any prospective purchaser or
encumbrancer may conclusively presume and rely upon the following facts:
(i) that the terms and provisions of this Lease have not been changed
except as otherwise represented by Landlord; (ii) that this Lease has not
been canceled or terminated except as otherwise represented by Landlord;
(iii) that not more than one (1) month's Minimum Rent, Additional Rent or
other charges have been paid in advance; and (iv) that Landlord is not in
default under the Lease. In such event, Tenant shall be estopped from
17
denying the truth of such facts. Tenant shall also, on ten (10) days'
written notice, provide an agreement in favor of and in the form
customarily used by such encumbrance holder, by the terms of which Tenant
will agree to give prompt written notice to any such encumbrance holder in
the event of any casualty damage to the Leased Premises or in the event of
any default on the part of Landlord under this Lease, and will agree to
allow such encumbrance holder a reasonable length of time after notice to
cure or cause the curing of such default before exercising Tenant's right
of self-help under this Lease, if any, or terminating or declaring a
default under this Lease.
10.4. Attornment.
----------
At the option of the holder of any mortgage affecting the Leased
Premises, Tenant agrees that no foreclosure of a mortgage affecting the
Leased Premises, nor the institution of any suit, action, summary or other
proceeding against Landlord herein, or any successor Landlord, or any
foreclosure proceeding brought by the holder of any such mortgage to
recover possession of such property, shall by operation of law or otherwise
result in cancellation or termination of this Lease or the obligations of
Tenant hereunder, and upon the request of the holder of any such mortgage,
Tenant covenants and agrees to execute an instrument in writing
satisfactory to such party or parties or to the purchaser of the Leased
Premises in foreclosure whereby Tenant attorns to such successor in
interest.
ARTICLE XI : ASSIGNMENT AND SUBLETTING
11.1. Consent Required.
----------------
Tenant shall not voluntarily or involuntarily assign this Lease in
whole or in part, nor sublet all or any part of the Leased Premises without
following the procedures detailed herein and the prior written consent of
Landlord in each instance, which consent may be granted or withheld in
Landlord's sole discretion. In the case of any assignment or sublet, the
Landlord shall be entitled to fifty percent (50%) of any profit made by
Tenant. As used herein, the term "profit" shall be limited to the amount
paid by the assignee or sublessee to Landlord and/or Tenant in excess of
all payments otherwise due Landlord under this Lease and shall not include
any proceeds or profit received by Tenant for the sale or lease of
fixtures, furniture, and equipment. The consent by Landlord to any
assignment or subletting shall not constitute a waiver of the necessity for
such consent in any subsequent assignment or subletting. The foregoing
shall be construed to include a prohibition against any voluntary or
involuntary assignment or subletting arising by operation of law.
In the event that Tenant receives a bona fide written offer from a
third party for the sublease or assignment of the Leased Premises, Tenant
shall forthwith notify Landlord in writing attaching a copy of said offer,
of Tenant's desire to sublet or assign this Lease upon the terms of said
offer, whereupon Landlord shall have thirty (30) days to accept or reject
said assignment or sublease, or at Landlord's sole option cancel and
terminate this Lease, including the right to enter into a direct lease with
the proposed assignee or subtenant before or after such termination.
Notwithstanding any assignment or sublease, Tenant shall remain fully
liable on this Lease and shall not be released from performing any of the
18
terms, covenants and conditions hereof and Assignee(s) must execute
Personal Guarantees in a form acceptable to Landlord. If Tenant is a
corporation or partnership, any sale, transfer, leveraged buyout or other
disposition of more than fifty percent (50%) of the corporate stock or more
than fifty percent (50%) of partnership ownership, or any reorganization or
restructuring which results in the net worth of Tenant decreasing by more
than ten percent (10%) shall be deemed to be an assignment.
Landlord shall have the right to sell, convey, transfer or assign all
or any part of its interest in the real property and the buildings of which
the Leased Premises are a part or its interest in this Lease, and Tenant
agrees to attorn to Landlord's purchaser or assignee. All covenants and
obligations of Landlord under this Lease shall cease upon the execution of
such conveyance, transfer or assignment, but such covenants and obligations
shall run with the land and shall be binding upon the subsequent owner or
owners thereof or of this Lease.
ARTICLE XII : WASTE, GOVERNMENTAL AND INSURANCE REQUIREMENTS,
AND HAZARDOUS SUBSTANCES
12.1. Waste or Nuisance.
-----------------
Tenant shall not commit or suffer to be committed any waste upon the
Leased Premises or any nuisance or other act or thing which may disturb the
quiet enjoyment of any other tenant in the building in which the Leased
Premises may be located or in the Center, or which may disturb the quiet
enjoyment of occupants of adjoining properties.
12.2. Governmental and Insurance Requirements.
---------------------------------------
Tenant shall, at its sole cost and expense, comply with all of the
requirements of any insurance carrier for the Center and of all county,
municipal, state, federal and other applicable governmental authorities,
now in force or which may hereafter be in force.
12.3. Hazardous Substances.
--------------------
Tenant covenants and warrants that Tenant, Tenant's Work and any
alterations thereto and Tenant's use of Leased Premises will at all time
comply with and conform to all state, federal and local laws, statutes,
ordinances, rules and regulations of any governmental, quasi-governmental
or regulatory authorities ("Laws") which relate to the transportation,
storage, placement, handling, treatment, discharge, generation, production,
release, spill or disposal (collectively "Treatment") of any waste,
petroleum product, waste products, radioactive waste, poly-chlorinated
biphenyls, asbestos, hazardous materials of any kind, and any substance
which is regulated by any law, statute ordinance, rule or regulation
(collectively "Waste"). Tenant further covenants and warrants that it will
not engage in or permit any person or entity to engage in any Treatment of
any Waste on or which affects the Leased Premises, and that Tenant, at
Landlord's sole discretion, and with Landlord's prior written consent,
shall clean up, remediate or otherwise take all actions required by Law
with respect to the Treatment of Waste in, on, upon or affecting the Leased
Premises.
19
Immediately upon receipt of any Notice (as hereinafter defined) from
any person or entity, Tenant shall deliver to Landlord a true, correct and
complete copy of any written Notice. "Notice" shall mean any note, notice
or report of any suit, proceeding, investigation, order, consent order,
injunction, writ, award or action related to or affecting or indicating the
Treatment of any Waste in or affecting the Leased Premises or the Center.
Tenant hereby agrees it will indemnify, defend, save and hold harmless
Landlord and its officers, directors, shareholders, employees, agents,
partners, and their respective heirs, successors and assigns (collectively
"Indemnified Parties") against and from, and to reimburse the Indemnified
Parties with respect to, any and all damages, claims, liabilities, loss,
costs and expense (including, without limitation, all attorneys' fees and
expenses, court costs, administrative costs and costs of appeals), incurred
by or asserted against the Indemnified Parties by reason of or arising out
of: (a) the breach of any representation or undertaking of Tenant under
this Section 12.3 or (b) arising out of the Treatment of any Waste by
Tenant or any licensee, concessionaire, manager or other party occupying or
using the Leased Premises, or in or affecting the Leased Premises. All of
the terms, covenants, warranties and indemnifications contained in this
Section 12.3 shall survive the termination of this Lease.
Tenant shall not install any storage tanks, vessels, containers,
lines, pipes, conduits or the like at any time in, under, through or from
the Leased Premises or the Center without the prior express written consent
of Landlord. Landlord may require review of any proposed plans for, and
supervision of the installation of, any such improvements by trained
professionals competent to assess such proposed improvements, at the sole
cost and expense of Tenant, as a condition of the granting of the aforesaid
consent.
Landlord is given the right, but not the obligation, to inspect and
monitor the Leased Premises and Tenant's use of the Leased Premises in
order to confirm Tenant's compliance with the terms of this Section 12.3
and the representations set forth in this Section 12.3. Landlord may
require that Tenant deliver to Landlord concurrent with Tenant's vacating
the Leased Premises upon the expiration of this Lease, or any earlier
vacation of the Leased Premises by Tenant, at Tenant's expense, a certified
statement by licensed engineers satisfactory to Landlord, in form and
substance satisfactory to Landlord, stating that Tenant, Tenant's Work and
any alterations thereto and Tenant's use of the Leased Premises complied
and conformed to all Laws which relate to the Treatment of any Waste in or
affecting the Leased Premises.
Tenant agrees to deliver upon request from Landlord estoppel
certificates to Landlord expressly stipulating whether Tenant is engaged in
or has engaged in the Treatment of any Waste in or affecting the Leased
Premises, and whether Tenant has caused any spill, contamination,
discharge, leakage, release or escape of any Waste in or affecting the
Leased Premises, whether sudden or gradual, accidental or anticipated, or
any other nature at or affecting the Leased Premises and whether, to the
best of Tenant's knowledge, such an occurrence has otherwise occurred at or
affecting the Leased Premises.
20
ARTICLE XIII : PROMOTION FUND
13.1. [Intentionally Deleted]
ARTICLE XIV : DESTRUCTION OF LEASED PREMISES
14.1. Partial Destruction.
-------------------
In the event of the partial destruction of the building or
improvements located on the Leased Premises by fire or any other casualty,
Landlord and Tenant shall, to the extent insurance proceeds are available,
restore or repair said building and improvements with reasonable diligence.
Landlord shall expend such sums as required to repair or restore
improvements to the condition they were in immediately prior to the date of
the destruction. A just and proportionate part of the rent payable by
Tenant to the extent that such damage or destruction renders the Leased
Premises untenantable shall xxxxx from the date of such damage or
destruction until the Leased Premises are repaired or restored.
14.2. Substantial Destruction.
-----------------------
If seventy-five percent (75%) of the Leasable Space on the Building on
the Leased Premises shall be so damaged by fire or other casualty, then
Tenant shall have the option to terminate this Lease by giving Landlord
written notice within sixty (60) days after such destruction, and (i) any
unearned rent shall be apportioned and returned to Tenant and (ii) any
insurance proceeds covering the Building and/or Leased premises payable to
Tenant as the result of the casualty shall be paid to Landlord. If Tenant
does not elect to cancel this Lease as aforesaid, then the same shall
remain in full force and effect and Landlord shall proceed with all
reasonable diligence to repair and replace the Leased Premises to the
condition they were in prior to the date of such destruction, and during
the time the Leased Premises are so destroyed and totally untenantable, the
rent shall be abated.
14.3. Destruction of Center. [Intentionally Omitted].
---------------------
ARTICLE XV : EMINENT DOMAIN
15.1. Condemnation.
------------
In the event of any condemnation or conveyance in lieu thereof of the
Leased Premises or the Center, or both, whether whole or partial, Landlord
may terminate this Lease, and in any event, Tenant shall be entitled to
make any claim against the condemning authority for the value of its
Leasehold interest as may permitted by applicable law. Tenant's enforcement
of its rights hereunder shall not prejudice the Landlord's right to seek
compensation for the value of its underlying fee title. Tenant shall also
have the right to claim and recover from the condemning authority (but not
from Landlord) such compensation as may be separately awarded to Tenant in
Tenant's own name and right on account of Tenants' trade fixtures and any
relocation cost.
21
ARTICLE XVI : DEFAULT OF TENANT
16.1. Tenant's Default.
----------------
The following shall constitute an "Event of Default" under this Lease:
(a) Tenant's failure to pay Minimum Rent on or before the first (1st)
day of the month and the failure of Landlord to have received from Tenant
payment in full, no later than ten (10) days after written notice from the
Landlord, any and all monthly installments of Minimum Rent and/or
Additional Rent; and/or failure of Landlord to have received from Tenant
payment in full of any Additional Rent, other charges and/or payment herein
reserved, included, or agreed to be treated or collected as rent within ten
(10) days after written notice from Landlord that such payments are due;
and/or failure of Landlord to have received payment in full of any other
charge, expense, or cost herein agreed to be paid by the Tenant within ten
(10) days after written notice from Landlord that such payments are due; or
(b) if Tenant violates or fails to perform or otherwise breaks any
non-monetary covenant or agreement of this Lease Agreement or the
agreements incorporated herein by reference, and such failure or violation
is not cured within thirty (30) days after written notice from Landlord to
Tenant of such failure or violation, or in the case of a failure or
violation which cannot be cured within said thirty (30) day period, the
Tenant has not commenced to cure such failure or violation within the
thirty (30) day period or has not diligently pursued the completion of such
cure.
(c) if Tenant vacates the Leased Premises without first having paid
and satisfied the Landlord in full for all Minimum Rent and Additional Rent
and all other charges then due that may thereafter become due until the
expiration of the then current term, above mentioned; or
(d) if Tenant becomes insolvent, makes an assignment for the benefit
of creditors, files or has filed against it a petition in bankruptcy and
such petition remains undismissed sixty (60) days after said petition is
filed, or a xxxx in equity or other proceeding for the appointment of a
receiver for the Tenant is filed, if proceedings or reorganization or for
composition with creditors under any State or Federal law be instituted by
or against Tenant.
(e) if Tenant shall default in the timely payment of Minimum Rent or
Additional Rent or other charges payable by Tenant hereunder or to timely
discharge any other monetary obligation three (3) times in any twelve (12)
month period notwithstanding the fact that any such default have been
cured.
(f) if Tenant or any agent of Tenant falsifies any report or statement
(including financial statements).
to be furnished to Landlord pursuant to the terms of this Lease. The
falsification of any such document shall be deemed an incurable material
22
breach of this Lease and, at Landlord's option, constitute an immediate
termination of Tenant's right to possession of the Leased Premises.
(g) failure of Tenant to open for business in accordance with Sections
4.01 and 4.02 of this Lease within ninety (90) days after the Lease
Commencement Date.
(h) failure of Tenant to execute and return required estoppel certificates
within the ten (10) days of Landlord's request and subordination agreements
within fifteen (15) days of Landlord's request.
16.2. Remedies.
--------
If an Event of Default occurs, then upon written election, but without
entry or other action, Landlord shall have the right to:
(a) Accelerate the Minimum Rent and Additional Rent for the entire
unexpired balance of the term of this Lease, all other charges, payments,
costs and expenses herein agreed to be paid by the Tenant or at the option
of Landlord any part of the rent and other charges, payments, costs and
expenses, all costs and officers' commission, watchman's wages, the five
percent (5%) chargeable by Act of Assembly, and reasonable attorney's fees
incurred or to be incurred by Landlord, and shall, in addition to any and
all installments of rent, already due and payable and in arrears and/or
other charge 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 which may be due and payable and in
arrears, be taken to be due and payable and in arrears as if by the terms
and provisions of this Lease, the whole balance of unpaid Minimum Rent,
Additional Rent and other charges, payments, taxes, costs, and expenses
were on that date payable in advance.
(b) Collect and receive from any assignee or subtenant the Minimum
Rents, Additional Rents, Percentage Rent (if any) and all other charges
reserved herein as rent due by such assignee or sublessee and apply the
same to the rent due hereunder. Receipt of such sums by Landlord shall be
credited against the amount due from Tenant but it shall in no way affect
Tenant's obligations to pay any unpaid balance of rent due hereunder. No
payment by subtenant or assignee shall give such subtenant or assignee any
rights greater than those existing between Landlord and Tenant.
(c) Terminate this Lease without any right on the part of the Tenant
to save the forfeiture by payment of any sum due or by other performance of
any condition, term, or covenant broken; whereupon, Landlord shall be
entitled to recover damages for such breach in an amount of rent reserved
for the balance of the term of this Lease or the residue of said term plus
the amount of any prior rents then due and owing.
(d) Terminate Tenant's right of continued possession of the Leased
Premises and, from time to time, without terminating this Lease and without
prejudice to any right of Landlord under this Lease, to relet the Leased
Premises or any part thereof for the account and in the name of Tenant, for
any such term on terms and conditions as Landlord in its sole discretion
23
may deem advisable with the right to make alterations and repairs to the
Leased Premises deemed by Landlord to be necessary in conjunction with such
reletting; and Tenant shall pay to Landlord, as soon as ascertained, the
costs and expenses incurred by Landlord in such reletting and in making
such alterations and repairs. Rentals received by Landlord from such
reletting shall be applied: first, to the payment of any indebtedness,
other than Minimum Rent, Additional Rent, and Percentage Rent (if any) due
hereunder from Tenant to Landlord; second, to the payment of the cost of
any alterations and repairs to the Leased Premises necessary to return the
Leased Premises to good condition, normal wear and tear excepted, for uses
permitted by this Lease and the cost of storing any of Tenant's property
left on the Leased Premises at the time of reletting; third, to the payment
of Minimum Rent, Additional Rent, and Percentage Rent (if any) and all
other charges or payments due and unpaid hereunder; the residue, if any
shall be held by Landlord at interest of six percent (6%) per annum and
applied in payment of future rent or damages in the event of termination as
the same may become due and payable hereunder and the balance, if any, at
the end of the Lease Term shall be paid to Tenant. Should such rentals
received from time to time from such reletting during any month be less
than that amount which this Lease requires to be paid during that month by
Tenant hereunder, the Tenant shall pay such deficiency to Landlord. Nothing
in this subparagraph shall prevent Landlord from accelerating the rent or
other amounts due thereunder. Such deficiency shall be calculated and paid
monthly. No such reletting of the Leased Premises by Landlord pursuant to
this subparagraph, shall be construed as an election on its part to
terminate this Lease unless a notice of such intention be given by Landlord
to Tenant or unless the termination thereof be decreed by a court of
competent jurisdiction; and notwithstanding any such reletting without
termination, Landlord may at any time hereafter elect to terminate this
Lease for such previous breach provided it has not been cured.
(e) Lease the Leased Premises or any part or parts thereof to any
person or persons as Landlord in its sole discretion decides, and the
Tenant shall be liable for any loss of rent for the balance of the then
current term.
16.3. Further Remedies of Landlord:
----------------------------
(a) The following two paragraph sets forth warrants or authorities for
any prothonotary or any attorney to confess judgment against Tenant. In
granting these warrants or authorities to confess judgment against Tenant,
Tenant hereby knowingly, intentionally and voluntarily, and (on the advice
of the separate counsel of Tenant, if Tenant has used counsel in regard to
the execution and delivery of this Lease) unconditionally waives any and
all right Tenant has, or may have, to prior notice and an opportunity for
hearing under the constitutions and laws of the United States and the
Commonwealth of Pennsylvania.
1. TENANT COVENANTS AND AGREES THAT IF THERE IS AN EVENT OF
DEFAULT OR THIS LEASE IS TERMINATED OR THE TERM, INCLUDING, WITHOUT
LIMITATION, THE RENEWAL TERM(S) OR ANY OTHER EXTENSIONS OR RENEWALS
THEREOF IS TERMINATED OR EXPIRES, THEN, AND IN ADDITION TO THE RIGHTS
AND REMEDIES SET FORTH IN SECTION 16.2, LANDLORD MAY, WITHOUT
24
LIMITATION, UPON TEN (10) DAYS ADVANCE WRITTEN NOTICE TO TENANT, CAUSE
JUDGMENT IN EJECTMENT FOR POSSESSION OF THE LEASED PREMISES TO BE
ENTERED AGAINST TENANT AND, FOR THOSE PURPOSES, TENANT HEREBY GRANTS
THE FOLLOWING WARRANT OF ATTORNEY: (I) TENANT HEREBY IRREVOCABLY
AUTHORIZES AND EMPOWERS ANY PROTHONOTARY, CLERK OF COURT, ATTORNEY OF
ANY COURT OF RECORD AND/OR LANDLORD (AS WELL AS SOME ONE ACTING FOR
LANDLORD) IN ANY AND ALL ACTIONS COMMENCED FOR RECOVERY OF POSSESSION
OF THE LEASED PREMISES TO APPEAR FOR TENANT AND CONFESS OR OTHERWISE
ENTER JUDGMENT IN EJECTMENT FOR POSSESSION OF THE LEASED PREMISES
AGAINST TENANT AND ALL PERSONS ACTING, HOLDING OR CLAIMING DIRECTLY OR
INDIRECTLY BY, THROUGH OR UNDER TENANT, AND THEREUPON WRITS OF
POSSESSION MAY FORTHWITH ISSUE AND BE SERVED, WITHOUT ANY PRIOR
NOTICE, WRIT OR PROCEEDING WHATSOEVER; (II) IF, FOR ANY REASON AFTER
THE FOREGOING ACTION OR ACTIONS SHALL HAVE BEEN COMMENCED, IT SHALL BE
DETERMINED THAT POSSESSION OF THE LEASED PREMISES SHOULD REMAIN IN OR
BE RESTORED TO TENANT, LANDLORD SHALL HAVE THE RIGHT TO COMMENCE ONE
OR MORE FURTHER ACTIONS AS HEREINBEFORE SET FORTH TO RECOVER
POSSESSION OF THE LEASED PREMISES INCLUDING, WITHOUT LIMITATION,
APPEARING FOR TENANT AND CONFESSING OR OTHERWISE ENTERING JUDGMENT FOR
POSSESSION OF THE LEASED PREMISES AS HEREINBEFORE SET FORTH; AND (III)
THE PROVISIONS OF SECTION 16.03(c)3 HEREOF ARE INCORPORATED HEREBY BY
THIS REFERENCE THERETO.
2. IN ANY ACTION OR PROCEEDING DESCRIBED IN SECTION AND/OR
---------------
16.03(c)1, OR IN CONNECTION THEREWITH, IF A COPY OF THIS LEASE
--------
IS THEREIN VERIFIED BY LANDLORD (OR SOMEONE ACTINGFOR LANDLORD) TO BE
A TRUE AND CORRECT COPY OF THIS LEASE, SUCH COPY SHALL BE CONCLUSIVELY
PRESUMED TO BE TRUE AND CORRECT BY VIRTUE OF SUCH VERIFICATION AND IT
SHALL NOT BE NECESSARY TO FILE THE ORIGINAL OF THIS LEASE, ANY
STATUTE, RULE OF COURT OR LAW, CUSTOM, OR PRACTICE TO THE CONTRARY
NOTWITHSTANDING. TENANT HEREBY RELEASES TO LANDLORD, ANY ONE ACTING
FOR LANDLORD AND ALL ATTORNEYS WHO MAY APPEAR FOR TENANT ALL ERRORS IN
PROCEDURE REGARDING THE ENTRY OF JUDGMENT OR JUDGMENTS BY CONFESSION
OR OTHERWISE BY VIRTUE OF THE WARRANTS OF ATTORNEY CONTAINED HEREIN,
AND ALL LIABILITY THEREFOR. THE RIGHT TO ENTER JUDGMENT OR JUDGMENTS
BY CONFESSION OR OTHERWISE BY VIRTUE OF THE WARRANTS OF ATTORNEY
CONTAINED HEREIN AND TO ENFORCE ALL OF THE OTHER PROVISIONS OF THIS
LEASE MAY BE EXERCISED BY ANY ASSIGNEE OF LANDLORD'S RIGHT, TITLE AND
INTEREST IN THE LEASE AND IN SUCH ASSIGNEE'S OWN NAME, ANY STATUTE,
RULE OF COURT OR LAW, CUSTOM OR PRACTICE TO THE CONTRARY
NOTWITHSTANDING.
25
(b) Curing Tenant's Default: If Tenant shall be in default in the
-----------------------
performance of any of it obligations hereunder, including, but not
limited to the failure of Tenant to promptly perform any of the
covenants of this Lease requiring Tenant to repair or maintain the
Leased Premises, Landlord, without any obligation to do so, in
addition to any other rights it may have in law or equity, may elect
to cure such default on behalf of Tenant after written notice (except
in the case of emergency) to Tenant. Tenant shall reimburse Landlord
upon demand for any sums paid or costs incurred by Landlord in curing
such default, including interest thereon from the respective dates of
Landlord's making the payments and incurring such costs, which sums
and costs together with interest thereon shall be deemed additional
rent payable promptly upon being billed therefor.
(c) Remedies Cumulative: All of the remedies hereinbefore given
-------------------
to Landlord and all rights and remedies given to it by law and equity
shall be cumulative and concurrent. No determination of this Lease or
the taking or recovering of the Leased Premises shall deprive Landlord
of any of his remedies or actions against the Tenant for rent then
due, or rent which under the terms hereof, would in the future become
due as if there has been no termination, or for any and all sums due
at the time of which, under the terms hereof, would in the future
become due as if there had been no termination, 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 Leased Premises.
(d) Self-Help: If Tenant shall default in the performance or
---------
observance of any agreement or condition in this Lease other than an
obligation to pay money, and shall not cure such default within thirty
(30) days after notice from Landlord specifying the default, Landlord
may, at its option, without waiving any claim for damages for breach
of agreement, at any time thereafter cure such default for the account
of Tenant, and any amount paid or incurred for the account of Tenant,
and Tenant agrees to reimburse Landlord therefor and save Landlord
harmless therefrom; provided that Landlord may cure any such default
as aforesaid prior to the expiration of said waiting period but after
notice to Tenant, if the curing of such default prior to the
expiration of said waiting period but after notice to Tenant, is
reasonably necessary to protect the real estate or Landlord's interest
therein, or to prevent injury or damage to persons or property. If
Tenant shall fail upon demand to reimburse Landlord for any amount
paid for the account of Tenant hereunder, said amount shall be added
to and become due as a part of the next payment of rent due
thereunder.
(e) Waiver of Errors, Right of Appeal, Stay and Exemption: Tenant
-----------------------------------------------------
hereby releases to Landlord and to any and all attorneys whom may
appear for Tenant all errors in any procedure of action to enter
judgment by confession by virtue of the warrants of attorney contained
in this Lease, and all liability thereof, Tenant further authorizes
the Prothonotary or any Clerk of any Court of Record to issue a Writ
of Execution or other process. If proceedings shall be commenced to
recover possession of the Premises either at the end of the term or
sooner termination of this Lease, or for non-payment of rent or for
any other reasons, Tenant specifically Waives the right to the three
(3) months notice to quit and/or the fifteen (15) or thirty (30) days
notice to quit required by the Act of April 6, 1951, P.L. 69, as
amended, and agrees that five (5) days notice shall be sufficient in
either or any such case.
26
16.4. Legal Expenses:
--------------
If suit shall be brought or claim shall be made (whether or not suit
is commenced or judgment entered) for recovery of possession of the Leased
Premises, and/or the recovery of rent or any other amount due under
provisions of this Lease, or because of the breach of any other covenant
herein contained, and the breach shall be established, the non-prevailing
party shall pay to the prevailing party, in addition to all other sums and
relief available to the prevailing party, all expenses incurred therefor,
including reasonable attorneys' fees to the extent permitted by law.
16.5. Failure to Pay; Interest.
------------------------
If Tenant at any time shall fail to pay any taxes, assessments or
liens, provide insurance or perform any act required by this Lease to be
made or performed by it, or fail to pay any charge payable by Tenant or to
timely discharge any other monetary obligation of Tenant required by this
Lease, Landlord, without waiving or releasing Tenant from any obligation or
default under this Lease, may (but shall be under no obligation to) at any
time thereafter make such payment or perform such act for the account and
at the expense of Tenant. All sums so paid by Landlord and all costs and
expenses so incurred shall accrue interest at a rate equal to the maximum
rate permitted by law from the date of payment or incurring thereof by
Landlord and shall constitute Other Rent payable by Tenant under this Lease
and shall be paid by Tenant to Landlord upon demand. Notwithstanding
anything to the contrary contained herein, if Tenant fails to contest any
invoice or other written demand for payment of rent or any other sums due
within the time frames specified in the Lease for payment, then Tenant
shall have no rights to contest such invoice or xxxx thereafter.
ARTICLE XVII : ACCESS BY LANDLORD
17.1. Right of Entry.
--------------
During the six (6) months prior to the expiration of the term of this
Lease or any renewals thereof, Landlord may exhibit the Leased Premises to
prospective tenants or purchasers and place upon the Leased Premises the
usual signage for space rental. Nothing herein contained, however, shall be
deemed or construed to impose upon Landlord any obligation, responsibility
or liability whatsoever for the care, maintenance or repair of the building
or any part thereof, except as otherwise herein specifically provided.
ARTICLE XVIII : TENANT'S PROPERTY
18.1. Taxes on Leasehold.
------------------
Tenant shall be responsible for and shall pay before delinquency all
municipal, county, or state taxes assessed during the term of this Lease
against any leasehold interest or personal property of any kind owned by or
placed in, upon, or about the Leased Premises by Tenant.
27
18.2. Loss and Damage.
---------------
Landlord shall not be liable for any injury or damage to persons or
property or loss of business resulting from fire, explosion, falling
plaster, steam, gas, electricity, water, rain or snow, or leaks from any
part of the Leased Premises, or from the pipes, appliances or plumbing
works, or from the roof, street or subsurface, or from any other place, or
by dampness or by any other cause of whatsoever nature or by rodents, bugs
or vermin, and whether originating in the Leased Premises or elsewhere. All
property of Tenant kept or stored on the Leased Premises shall be so kept
or stored at the risk of Tenant only, and Tenant hereby holds Landlord
harmless from any claims arising out of damage to the same, including
subrogation claims by Tenant's insurance carriers, a waiver of which shall
be obtained in advance by Tenant.
18.3. Notice by Tenant.
----------------
Tenant shall give immediate notice to Landlord in case of fire or
accidents, or damage to or of defects in the Leased Premises or in the
building of which the Leased Premises are a part.
ARTICLE XIX : HOLDING OVER; SUCCESSORS
19.1. Holding Over.
------------
Any holding over after the expiration of the term hereof, with or
without the consent of Landlord, shall be construed to be a tenancy from
month to month at the rents herein specified (prorated on a monthly basis)
and shall otherwise be on the terms and conditions herein specified, so far
as applicable; provided, however, if such holding over is without the
consent of Landlord, Minimum Rent for such holdover period shall be two (2)
times the Minimum Rent due for the last month of the Lease Term.
19.2. Successors and Assigns.
----------------------
Except as otherwise herein provided, this Lease and all the covenants,
terms, provisions and conditions herein contained shall inure to the
benefit of and be binding upon the heirs, representatives, successors and
assigns of each party hereto, and all covenants herein contained shall run
with the land and bind any and all successors in title to Landlord.
ARTICLE XX : QUIET ENJOYMENT
20.1. Landlord's Covenant.
-------------------
Upon payment by Tenant of the rents herein provided, and upon the
observance and performance of all the covenants, terms and conditions on
Tenant's part to be observed and performed, Tenant shall peaceably and
quietly hold and enjoy the Leased Premises for the term hereby demised
without hindrance or interruption by Landlord or any other person or
persons lawfully or equitably claiming by, through or under Landlord;
subject, nevertheless, to all the terms and conditions of this Lease.
28
ARTICLE XXI : MISCELLANEOUS
21.1. Waiver.
------
The waiver by Landlord of any breach of any term, covenant or
condition herein contained shall not be deemed to be a waiver of any
subsequent breach of the same or any other term, covenant or condition
herein contained. No covenant, term or condition of this Lease shall be
deemed to have been waived by Landlord unless such waiver shall be in
writing.
21.2. Accord and Satisfaction.
-----------------------
No payment by Tenant or receipt by Landlord of a lesser amount than
the monthly rent installments herein stipulated shall be deemed to be other
than on account of the most current stipulated rent owed at that time, nor
shall any endorsement or statement on any check or any letter accompanying
any check or payment as rent be deemed an accord and satisfaction.
21.3. No Partnership.
--------------
Landlord does not, in any way or for any purpose, become a partner of
Tenant in the conduct of its business or otherwise, or joint adventurer or
a member of a joint enterprise with Tenant.
21.4. Force Majeure.
-------------
In the event that either party hereto shall be delayed or hindered in
or prevented from the performance of any act required hereunder by reason
of strikes, lockouts, labor troubles, inability to procure materials,
failure of power, restrictive governmental laws or regulations, riots,
insurrection, war, or other reason of a like nature not the fault of the
party delayed in performing work or doing acts required under the terms of
this Lease, then the time allowed for performance of such act shall be
extended by a period equivalent to the period of such delay so long as the
delayed party provides the other with a written explanation of reasons for
the delay. The provisions of this Section 21.04 shall not operate to excuse
Tenant from the prompt payment of Minimum Rent, Percentage Rent or
Additional Rent or any other payments required by the terms of this Lease.
21.5. Landlord's Liability.
--------------------
If Landlord shall fail to perform any covenant, term or condition of
this Lease upon Landlord's part to be performed, Tenant may not terminate
the Lease, and Tenant's sole remedies shall be money damages (except as
expressly provided elsewhere in this Lease) and specific performance. If
Tenant shall recover a money judgment against Landlord, such judgment shall
be satisfied only out of the proceeds of sale received upon execution of
such judgment and levy thereon against the right, title and interest of
Landlord in the Center as the same may then be encumbered and neither
Landlord nor if Landlord be a partnership, any of the partners comprising
such partnership shall be liable for any deficiency. It is understood that
in no event shall Tenant have any right to levy execution against any
property of Landlord other than its interest in the Center as hereinbefore
expressly provided. In the event of the sale or other transfer of
Landlord's right, title and interest in the Leased Premises or the Center,
Landlord shall be released from all liability and obligations hereunder.
The only warranties made by Landlord with respect to this Lease and the
Leased Premises are as expressly contained herein. Landlord hereby
expressly and unequivocally disclaims any and all implied warranties with
respect to the Leased Premises and Tenant's use of same, including, but not
limited to, the implied warranty of habitability.
29
21.6. Notices and Payments.
--------------------
Any notice by Tenant to Landlord must be served by Federal Express or
similar overnight delivery service or by certified mail, postage prepaid,
addressed to Landlord at the place designated for the payment of rent, or
at such other address as Landlord may designate from time to time by
written notice. Any notice by Landlord (which may be given by Landlord or
Landlord's attorney or management company) to Tenant must be served by
Federal Express or similar overnight delivery service or by certified mail,
postage prepaid, addressed to Tenant at the Leased Premises, or at such
other address as Tenant may designate from time to time by written notice
to Landlord. All notices shall be effective upon delivery or attempted
delivery in accordance with this Section 21.06. Until otherwise notified in
writing, Tenant shall pay all rent reserved herein and all other sums
required under this Lease by check payable to the order of Landlord and
shall forward the same to Landlord as herein provided.
21.7. Financial Statements.
--------------------
The persons signing this Lease on behalf of Tenant hereby personally
represent and warrant to Landlord that the financial statements delivered
to Landlord prior to the execution of this Lease properly reflect the true
and correct value of all the assets and liabilities of Tenant and
Guarantors. Tenant acknowledges that in entering into this Lease, Landlord
is relying upon such statements and Tenant shall supply Landlord updated
financial statements of Tenant and Guarantors each Lease Year and from time
to time as requested by Landlord.
21.8. Captions and Section Numbers.
----------------------------
The captions, section numbers, article numbers and headings appearing
in this Lease are inserted only as a matter of convenience and in no way
define, limit, construe or describe the scope or intent of such sections or
articles of this Lease.
21.9. Definitions.
-----------
The word "Tenant" shall mean each and every person, firm or
corporation mentioned as a Tenant herein, be the same one or more; and if
there shall be more than one Tenant, any notice required or permitted by
the terms of this Lease may be given by or to any one thereof, and it shall
have the same force and effect as if given by or to all thereof. If there
shall be more than one Tenant, they shall all be bound jointly and
severally.
30
21.10. Partial Invalidity.
------------------
If any term, covenant or condition of this Lease, or the application
thereof to any person or circumstance, shall to any extent be invalid or
unenforceable, the remainder of this Lease or the application of such term,
covenant or condition of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
21.11. Recording.
---------
This Lease or a certificate or memorandum thereof may, at the option
of either Landlord or Tenant, be recorded. Costs of preparation and
recording shall be paid by the party seeking to record the memorandum. The
parties shall execute such certificate, short form lease or memorandum in a
form that is mutually acceptable to them.
21.12. Entire Agreement.
----------------
The Lease, the exhibits and rider, if any, set forth all the
covenants, promises, agreements, conditions and understandings between
Landlord and Tenant concerning the Leased Premises, and there are no
covenants, promises, agreements, conditions or understandings, either oral
or written, between them other than as herein set forth. All prior
communications, negotiations, arrangements, representations, agreements and
understandings, whether oral, written or both, between the parties hereto
and their representatives are merged herein and extinguished, this Lease
superseding and canceling the same. 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 executed by
the party against which such subsequent alteration, amendment, change or
modification is to be enforced. If any provision contained in any rider
hereto is inconsistent with any printed provisions of this Lease, the
provision contained in such rider shall supersede said printed provision.
Tenant hereby acknowledges that (a) this Lease contains no restrictive
covenants or exclusives in favor of Tenant except as stated in Section 4.01
(if any); and (b) this Lease shall not be deemed or interpreted to contain,
by implication or otherwise, any warranty, representation or agreement on
the part of Landlord that any department store or regional or national
chain store or any other merchant shall open for business or occupy or
continue to occupy any premises in or adjoining the Center during the term
of this Lease or any part thereof, and Tenant hereby expressly waives all
claims with respect thereto and acknowledges that Tenant is not relying on
any such warranty, representation or agreement by Landlord either as a
matter of inducement in entering into this Lease or as a condition of this
Lease or as a covenant by Landlord.
21.13. Jury Trial; Claims; Survival.
----------------------------
To the extent permitted by applicable law, and acknowledging that the
consequences of said waiver are fully understood, Tenant hereby expressly
waives the right to trial by jury in any action taken with respect to this
Lease and waives the right to interpose any set-off or counterclaim of any
nature or description in any action or proceeding instituted against Tenant
pursuant to this Lease. Notwithstanding anything in this Lease to the
31
contrary, the representations and undertakings of Tenant under this Lease
shall survive the expiration or termination of this Lease regardless of the
means of such expiration or termination.
21.14. Applicable Law.
--------------
This Lease and the rights and obligations of the parties arising
hereunder shall be construed in accordance with the laws of the
Commonwealth of Pennsylvania.
21.15. Consents and Approvals.
----------------------
Whenever Landlord's consent or approval is required herein, such
consent or approval shall not be deemed given until Landlord has provided
such consent or approval in writing. Tenant shall pay Landlord's reasonable
attorneys' fees incurred in connection with Tenant's request for Landlord's
consent or approval. Where the consent or approval of Landlord shall be
required, such consent or approval shall be granted in Landlord's sole
discretion unless otherwise expressly provided. With respect to any
provision of this Lease which either expressly provides or is held to
provide that Landlord shall not unreasonably withhold or unreasonably delay
any consent or approval, Tenant shall not be entitled to make claim for,
and Tenant expressly waives claim for, damages incurred by Tenant by reason
of Landlord's failure to comply, it being understood and agreed that
Tenant's sole remedy shall be an action for specific performance.
21.16. Authority.
---------
In the event Tenant hereunder shall be a corporation, the persons
executing this Lease on behalf of Tenant hereby covenant and warrant that
Tenant is a duly qualified corporation and all steps have been taken prior
to the date hereof to qualify Tenant to do business in the State; all
franchise and corporate taxes have been paid to date; all future forms,
reports, fees and other documents necessary to comply with applicable laws
will be filed when due; and those persons executing this Lease on behalf of
Tenant are duly qualified and authorized to bind, and in fact do bind, the
corporation. In the event Tenant hereunder shall be a partnership, either
general or limited, the persons or entities executing this Lease on behalf
of Tenant hereby covenant and warrant that Tenant is a duly qualified
partnership and all steps have been taken prior to the date hereof to
qualify Tenant to do business in the State, if required by law; all
franchise and partnership taxes have been paid to date; all future forms,
reports, fees and other documents necessary to comply with applicable laws
will be filed when due; and those entities executing this Lease on behalf
of partnership are duly qualified to bind, and in fact do bind, the
partnership. This Lease shall be effective only when it is signed by both
Landlord and Tenant. Tenant's submission of a signed lease for review by
Landlord does not give Tenant any interest, right or option in the Leased
Premises.
21.17. Interpretation.
--------------
Both parties have read this Lease and had the opportunity to employ
legal counsel and negotiate changes to the Lease. The Lease is the joint
product of the parties and, in the event of any ambiguity herein, no
inference shall be drawn against a party by reason of document preparation.
32
21.18. Brokers.
-------
Tenant represents and warrants to Landlord that no broker or agent
negotiated or was instrumental in negotiating or consummating this Lease
excepting only Broker. Broker is representing Landlord on this Lease, and
Broker's commission shall be paid by Landlord. Tenant knows of no other
real estate broker or agent who is or might be entitled to a commission or
compensation in connection with this Lease. All fees, commissions or other
compensation payable to any broker or agent of Tenant shall be paid by
Tenant. Tenant shall hold Landlord harmless from all damages and shall
indemnify Landlord for all damages paid or incurred by Landlord resulting
from any claims asserted against Landlord by brokers or agents claiming
through Tenant. Tenant acknowledges that Tenant has been informed that
person(s) associated with Broker may have or may acquire an ownership
interest in the Center, and Tenant acknowledges by signing this Lease that
such ownership interest shall not affect the terms, conditions or validity
of this Lease.
ARTICLE XXII : SECURITY AND RENT DEPOSITS
22.1. Amount of Security Deposit.
--------------------------
Tenant, contemporaneously with the execution of this Lease, has
deposited with Landlord the sum set forth in Section 1.00(m), the receipt
of which is hereby acknowledged by Landlord. Said deposit shall be held by
Landlord, without liability for interest, as security for the faithful
performance by Tenant of all the terms, covenants and conditions of this
Lease by said Tenant to be kept and performed during the term hereof.
Tenant specifically agrees that any deposit held hereunder by Landlord may
be commingled with any other funds of Landlord.
22.2. Use and Return of Security Deposit.
----------------------------------
Should Tenant fail to keep and perform any of the terms, covenants and
conditions of this Lease to be kept and performed by Tenant, as provided in
Article XVI, Landlord may appropriate and apply said entire deposit, or so
much thereof as may be necessary, to compensate Landlord for loss or damage
sustained by Landlord due to such breach, without prejudice to its further
rights and remedies. Should the entire security deposit or any portion
thereof be appropriated and applied by Landlord for the payment of overdue
rent or other sums due from Tenant hereunder, then Tenant shall, upon the
written demand of Landlord, forthwith remit to Landlord a sufficient amount
in cash to restore said deposit to the original sum deposited. Should
Tenant comply with all the terms, covenants and conditions of this Lease,
the said deposit shall be returned to Tenant at the end of the term of this
Lease. Should Tenant terminate this Lease prior to the Possession Date
(except as provided for in Section 1.06) or prior to the end of term, then
Tenant shall forfeit its security deposit.
33
22.3. Rent Deposit.
------------
Tenant, contemporaneously with the execution of this Lease has
deposited with Landlord the sum set forth in Section 1.01(n) to be held and
applied to the initial Minimum Rent and Additional Rent due under this
Lease.
ARTICLE XXIII : TENANT AND COVENANTS; EASEMENTS
23.1. Tenant Covenants.
----------------
Notwithstanding anything to the contrary contained herein, this Lease
is subject to and made on the understanding that Landlord has granted
and/or will grant certain restrictions and exclusive use covenants to other
tenants of the Center (herein the "Tenant Covenants"). Tenant acknowledges
that Tenant's use and/or occupancy of the Leased Premises in violation of
any current or future Tenant Covenants of which Tenant has been given prior
written notice by Landlord would subject Landlord to substantial damages,
and as such, Tenant acknowledges and agrees that any such violation by
Tenant of any such Tenant Covenants of which Tenant has been given prior
written notice by Landlord shall constitute, after notice and right to
cure, an Event of Default under Section 16.1(b). Nothing contained in this
Section 23.1 shall be construed to permit Tenant to expand the use
restrictions set forth in Section 4.1 hereof.
23.2. Landlord Covenant.
-----------------
Landlord covenants and agrees that it will not grant any other Tenant
within Xxxxxx-Xxxxxxxx Center-Phase II the right to operate a bank branch
or engage in any banking service (retail or otherwise) that is competitive
with the Tenant's use of the leased Premises other than mortgage or
financial services related to Landlords real estate business, or the
business of its affiliate, Xxxxxx-Xxxxxxxx Realtors. Any mortgage
origination or financial services permitted by this paragraph shall be
conducted in the name of Xxxxx Xxxxxxxx, X.X Xxxxxxxx, Inc.,
Xxxxxx-Xxxxxxxx Realtors, Delaware Valley Financial Mortgage, LLC, or any
entity in which Xxxxx Xxxxxxxx owns at least twenty five percent (25%)
interest or other retail name that shall be approved by Tenant in advance.
23.3. Easements.
---------
The Center is and/or may be encumbered and/or benefited from time to
time by certain easements, development and operating covenants, and similar
agreements. Tenant agrees that it shall abide by any such agreement,
including as any such agreement may be amended from time to time in
Landlord's sole discretion. Landlord shall have the right to enter into
and/or terminate any such agreement in Landlord's sole discretion. Landlord
covenants and agrees to and with Tenant that no easement, license or other
right granted by Landlord over any portion of the Center shall interfere
with Tenant's beneficial and economic use of the Leased Premises or
vehicular and pedestrian access to and from the Leased Premises over the
Center to public roads.
34
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease
as of the day and year first above written.
LANDLORD:
XXXXXX-XXXXXXXX, INC.
By: /s/ Xxxxx Xxxxxxxx
-----------------------------
Title: President
-----------------------------
Date: 4-26-07
TENANT:
FIRST NATIONAL BANK OF XXXXXXX COUNTY
By: /s/ Xxxx Xxxxxxxxxx
-----------------------------
Title: Chief Executive Officer
-----------------------------
Date: 5-8-07
-----------------------------
35
EXHIBIT "A"
Overall Development Plan for Center
[Graphic Omitted]
36
EXHIBIT "B"
Leased Premises
[Graphic Omitted]
37
EXHIBIT "C"
DISCLOSURE FOR CONFESSION OF JUDGMENT
I am executing, this day of , 200 , a Lease
------ ----------------------- ---
with ("Landlord").
--------------
A. I understand that the Lease contains a confession of judgment provision that
would permit Landlord to enter judgment against me in court, after a default on
the Lease, without advance notice to me and without offering me an opportunity
to defend against the entry of judgment. In executing the Lease, being fully
aware of my rights to advance notice and to a hearing to contest the validity of
any judgment or other claims that Landlord may assert against me under the
Lease, I am knowingly, intelligently, and voluntarily waiving these rights,
including any right to advance notice of the entry of judgment, and I expressly
agree and consent to Landlord's entering judgment against me by confession as
provided for in the confession of judgment provision. TENANT:
By:
------------------------
Title:
---------------------
EXHIBIT "D"
ESTOPPEL CERTIFICATE
THIS CERTIFICATE made the day of , 200___ between
-------- ----------------------
------------------------------------------ ("Landlord") and
("Tenant").
----------------------------------------
W I T N E S S E T H:
WHEREAS, Landlord has entered into a lease with Tenant dated ,
-------------------
200 ("Lease") for a storeroom ("Leased Premises") in
---- -----------------------,
Pennsylvania.
WHEREAS, Tenant is in possession of the Leased Premises pursuant to the
Lease and the parties hereto desire to confirm certain dates provided for in the
Lease.
NOW, THEREFORE, intending to be legally bound, Landlord and Tenant covenant
and agree as follows (capitalized terms being used herein as defined in the
Lease):
1. The Possession Date of Leased Premises is.
2. The Lease Commencement Date is.
3. The Lease Expiration Date is.
4. The Rent Commencement Date is.
5. The Additional Rent Commencement Date is .
6. The Gross Leasable Area of the Leased Premises is square feet.
-------
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Certificate
the day and year first above written.
LANDLORD:
By:
-----------------------------
Title:
--------------------------
TENANT:
By:
-----------------------------
Title:
--------------------------
39
EXHIBIT "E"
CONSTRUCTION REQUIREMENTS FOR TENANT'S IMPROVEMENTS
1. The Improvements. Tenant shall be responsible for constructing on and
-----------------
within the Premises, at Tenant's sole cost and expense, an approximately three
thousand (3,000) square foot, free-standing, one-story building, together with
any necessary and related improvements, including, without limitation, all
necessary sewer, water, and other utility services, sidewalks, and other Limited
Common Areas surrounding the Leased Premises (collectively, the "Improvements").
The Improvements shall be constructed strictly in accordance with the terms of
this Lease. Tenant acknowledges that Tenant has inspected the Premises and
conducted such tests and inquiries as it deems prudent to determine whether the
Premises are suitable for the Tenant's Use and the construction of the
Improvements, and has accepted the Premises based upon such investigation and
without reliance upon any representations or warranties by Landlord, except as
may expressly be contained herein. Subject to the Landlord's Work set forth in
Paragraph 3.02, Tenant hereby accepts possession of the Premises in their
present condition "AS IS."
2. Construction Plans. Within sixty (60) days following the Lease
--------------------
Commencement Date, Tenant shall deliver to Landlord, for Landlord's review and
approval, complete construction plans and specifications for the construction of
the Improvements, including grading and drainage plans, utility plans, sewer and
water service connections, locations of ingress and egress to and from public
thoroughfares, curbs, gutters, and designs and locations for signage and
landscaping (the "Construction Plans"). The Construction Plans shall be prepared
by an architect or engineer licensed to practice as such in the Commonwealth of
Pennsylvania. The Construction Plans shall reflect that the Improvements, if
constructed in accordance with the Construction Plans, will be (i) in compliance
with all Applicable Laws, and (ii) situated within the boundaries of the Leased
Premises and Limited Common Area as depicted on Exhibit "B". Landlord shall
promptly review the Construction Plans and shall notify Tenant of Landlord's
approval or disapproval thereof within ten (10) days following receipt of the
Construction Plans. If Landlord disapproves of the Construction Plans as
aforesaid, Landlord shall indicate in Landlord's notice the specific reason for
such disapproval, and Tenant shall have the right to submit revised Construction
Plans, and Landlord shall have ten (10) days following each such submission and
resubmission to notify Tenant of any specific reasonable objection that Landlord
might have. Time shall be of the essence of all time periods in this paragraph,
and if Landlord fails to notify Tenant of Landlord's specific reasonable
objection to the Construction Plans or any revision thereto, within the
applicable time period, Landlord shall be deemed to have approved such
Construction Plans. Upon completion of the Improvements, Tenant shall provide
Landlord with a true and complete copy of all Construction Plans and working
drawings reflecting the as-built completion of the Improvements.
3. Permits and Approvals.
---------------------
3.1. Tenant, at Tenant's sole cost and expense, shall be responsible for
obtaining all permits, certificates, licenses, and other approvals as are
necessary for the construction of the Improvements from the Township and any
other governmental authorities with jurisdiction over the construction of the
40
Improvements, (the "Regulatory Approvals") and shall diligently prosecute
obtaining such permits, certificates, licenses, and other approvals. Landlord
agrees to cooperate with Tenant, at no cost to Landlord, in order to obtain such
permits and approvals, and shall execute such applications, consents, agreements
and instruments as may hereafter be requested by the Governmental Authorities in
order to obtain such Regulatory Approvals. If in connection with the issuance of
any such Regulatory Approvals, any Governmental Authorities requests or requires
material changes to the Improvements from the concepts depicted on the
Construction Plans, such material changes shall require the approval of
Landlord, which approval shall not be unreasonably conditioned, and shall only
be denied if such changes materially and adversely affect the use or operation
of the Premises, and in any event shall be granted or denied within ten (10)
days following submission, and any resubmission, of the requested changes to
Landlord. Time shall be of the essence of all time periods in this paragraph,
and if Landlord fails to notify Tenant of Landlord's specific reasonable
objection to such changes or any revision thereto, within the applicable time
period, Landlord shall be deemed to have approved such changes to the
Construction Plans.
3.2. It is understood and agreed that Tenant's obligations hereunder have
been satisfied as of the Lease Commencement Date of this Agreement and; all
Regulatory Approvals have been received and are in force.
4. General Contractor. Within sixty (60) days after the approval of the
-------------------
Construction Plans by Landlord, Tenant shall furnish Landlord with a true and
complete copy of Tenant's proposed contract for the construction of the
Improvements (the "Construction Contract") with a licensed and reputable general
contractor selected by Tenant.
5. Documents from Tenant. Prior to commencement of construction of the
---------------------
Improvements, Tenant shall furnish to Landlord, at Tenant's expense, copies of
the following documents: (i) a stipulation and waiver against mechanics liens,
properly filed with the Prothonotary for the Court of Common Pleas of the
County, signed by the General Contractor and otherwise in accordance with
Applicable Laws to waive on behalf of General Contractor and all of General
Contractor's subcontractors and suppliers all rights to file and prosecute
mechanic's and supplier's lien lights that may otherwise be available under
Applicable Laws; (ii) insurance certificates for Tenant and General Contractor,
in form reasonably satisfactory to Landlord, evidencing the insurance required
to provided by the terms hereof; and (iii) the building permit issued by the
Township for the construction of the Improvements.
6. Commencement and Completion of Construction. Within sixty (60) days
----------------------------------------------
after the later of (i) approval of the Construction Plans by Landlord or (ii)
receipt of the Regulatory Approvals, Tenant shall commence the construction of
the Improvements and shall diligently pursue such construction to completion.
Landlord shall, and hereby does grant, an easement for construction staging and
fencing on, over, and across other lands of the Landlord not included in the
Leased Premises, if any. Tenant shall be responsible for all costs and expenses
incurred in connection with the construction of the Improvements, including,
without limitation design and engineering fees. Tenant shall cause the
Improvements to be completed in substantial conformity with the Construction
Plans, and in accordance with Applicable Laws, and in a good and workmanlike
manner. Landlord's review of the Construction Plans and Construction Plans for
the Improvements shall not affect the liability of Landlord or Tenant otherwise
allocated or assumed under this Lease. Tenant shall be responsible and liable
for any and all tap-in fees and all impact fees, if any, which are normally and
customarily charged and required by any Governmental Authorities as a result of
or in connection with the exclusive use or occupancy of the Premises by Tenant.
Tenant shall promptly pay and discharge all costs, expenses, damages and other
liabilities which may arise in connection with or by reason of the Improvements,
and shall indemnify, defend and hold harmless the Landlord and the Premises in
the event of any nonpayment of same.
41
7. Mechanics' Liens. Tenant shall not create or permit any liens, claims or
----------------
assessments (actual or contingent) to be asserted against the Premises for any
material, labor or other items furnished in connection with the construction of
the Improvements. Tenant shall be responsible for removing, discharging and
satisfying any liens or claims of lien within sixty (60) days following notice
thereof.
8. Access to the Work. During the construction of the Improvements, Tenant,
------------------
upon reasonable advance notice, shall permit Landlord and its representatives
and agents to enter upon the Leased Premises to inspect the Improvements.
Tenant, or a representative of Tenant, shall be present during all such
inspections, and shall cooperate and shall cause the General Contractor to
cooperate with Landlord and Landlord's representatives and agents during such
inspections; provided, however, that this provision shall not be deemed to
impose upon Landlord any duty or obligation whatsoever to undertake such
inspections, to correct any defects in the Improvements or to notify any person
with respect thereto. Upon notice thereof, Tenant shall promptly correct any
material departure from the approved Construction Plans.
9. Insurance During Construction. In addition to the other insurance
-------------------------------
required to be obtained or maintained by Tenant under this Lease, during the
construction of the Improvements, Tenant shall cause the General Contractor to
obtain and maintain, the following insurance coverage:
9.1. Builder's risk insurance, insuring the Improvements during
construction (including all materials and equipment used therein and
whether stored on site or incorporated into the Improvements, or stored off
of the Leased Premises with Tenant's consent, and while in transit to the
Premises) against all risks of physical loss and damage, by fire, theft,
vandalism, and other risks, including collapse, and coverage of materials
in transit. Landlord and Tenant shall be named as loss payees under such
insurance, as their respective interests may appear. Such insurance shall
have deductibles as are reasonably satisfactory to Landlord and Tenant, and
shall be in such form and issued by such companies as shall be approved by
Landlord. Tenant shall have the right to obtain builder's risk insurance on
behalf of the General Contractor.
9.2. Worker's compensation insurance, with the minimum limits as
required by the laws of the Commonwealth of Pennsylvania, and Employer's
liability insurance with minimum limits of $500,000, covering the employees
of General Contractor and the General Contractor's subcontractors and
suppliers.
9.3. Commercial General Liability insurance with a limit of no less
than One Million Dollars ($1,000,000.00) for each occurrence and with a
general aggregate limit of no less than One Million Dollars ($1,000,000.00)
covering all damage or loss, including injury and death, caused by the
activities of the General Contractor and the General Contractor's
subcontractors and suppliers.
42
9.4. Automobile liability with a limit of no less than One Million
Dollars ($1,000,000.00) for each occurrence and with a general aggregate
limit of no less than One Million Dollars ($1,000,000.00) covering all
damage or loss, including injury and death, caused by automobiles owned,
hired, or leased by the General Contractor and the General Contractor's
subcontractors and suppliers.
9.5. Excess umbrella liability, with coverage as least as broad
necessary to insure the risks covered under each of the aforesaid primary
liability insurance policies, and having limits of no less than Two Million
Dollars ($2,000,000.00) for each occurrence and with a general aggregate
limit of no less than Two Million Dollars ($2,000,000.00).
10. Ownership of the Improvements. During the Term, the Building and other
-----------------------------
Improvements constructed by Tenant, including all fixtures, shall be the sole
and exclusive property of Tenant and its permitted assignees, and Tenant alone
shall be entitled to deduct all depreciation thereof on Tenant's income tax
returns, and mortgage, pledge or assign the same as collateral in connection
with any financing. Upon the expiration or sooner termination of this Lease, all
rights, ownership, title and interest to the Building and other Improvements
erected on the Premises by Tenant and any Alterations thereto, shall
automatically vest in and be transferred to Landlord, its successors and
assigns, without notice or action on the part of either of the parties hereto,
and such expiration or termination shall constitute an automatic assignment by
Tenant of Tenant's right to receive any rents or payments from any assignees,
subtenants, or licensees of all or any portion of the Premises.
43
APPENDIX I
----------
XXXXXX-XXXXXXXX BUSINESS CENTER
--------------------------------------------------------------------------------
FIRST NATIONAL BANK OF XXXXXXX COUNTY
SCHEDULE OF RENTS & FEES
ESTIMATED
BASE-MINIMUM RENT COMMON AREA MAINTAINENCE COMBINED
Years Square Annually Monthly AMOUNT SFT Annually Monthly Total Annual Total Monthly
Feet
1 3,000 120,000 10,000.00 1.75 5.250 437.50 125,250.00 10,437.50
2 3,000 120,000 10,000.00 1.75 5.250 437.50 125,250.00 10,437.50
3 3,000 120,000 10,000.00 1.75 5.250 437.50 125,250.00 10,437.50
4 3,000 120,000 10,000.00 1.75 5.250 437.50 125,250.00 10,437.50
5 3,000 120,000 10,000.00 1.75 5.250 437.50 125,250.00 10,437.50
6 3,000 141,000 11,750.00 1.75 5.250 437.50 146,250.00 12,187.50
7 3,000 145,935 12,161.25 1.75 5.250 437.50 151,185.00 12,598.75
8 3,000 151,043 12,586.89 1.75 5.250 437.50 156,292.73 13,024.39
9 3,000 156,329 13,027.44 1.75 5.250 437.50 161,579.22 13,464.94
10 3,000 161,801 13,483.40 1.75 5.250 437.50 167,050.74 13,920.90
Five Year Renewal Period
11 3,000 167,464 13,955.31 1.75 5.250 437.50 172,713.77 14,392.81
12 3,000 173,325 14,443.75 1.75 5.250 437.50 178,575.00 14,881.25
13 3,000 179,391 14,949.28 1.75 5.250 437.50 184,641.38 15,386.78
14 3,000 185,670 15,472.51 1.75 5.250 437.50 190,920.07 15,910.01
15 3,000 192,169 16,014.04 1.75 5.250 437.50 197,418.53 16,451.54
Five Year Renewal Period
16 3,000 198,894 16,574.54 1.75 5.250 437.50 204,144.43 17,012.04
17 3,000 205,856 17,154.64 1.75 5.250 437.50 211,105.73 17,592.14
18 3,000 213,061 17,755.06 1.75 5.250 437.50 218,310.68 18,192.56
19 3,000 220,518 18,376.48 1.75 5.250 437.50 225,767.80 18,813.98
20 3,000 228,236 19,019.66 1.75 5.250 437.50 233,485.93 19,457.16
Five Year Renewal Period
21 3,000 236,224 19,685.35 1.75 5.250 437.50 241,474.19 20,122.85
22 3,000 244,492 20,374.34 1.75 5.250 437.50 249,742.03 20,811.84
23 3,000 253,049 21,087.44 1.75 5.250 437.50 258,299.25 21,524.94
24 3,000 261,906 21,825.50 1.75 5.250 437.50 267,155.98 22,263.00
25 3,000 271,073 22,589.39 1.75 5.250 437.50 276,322.69 23,026.89
Four Year Renewal Period
26 3,000 280,560 23,380.02 1.75 5.250 437.50 285,810.23 23,817.52
27 3,000 290,380 24,198.32 1.75 5.250 437.50 295,629.84 24,635.82
28 3,000 300,543 25,045.26 1.75 5.250 437.50 305,793.13 25,482.76
29 3,000 311,062 25,921.85 1.75 5.250 437.50 316,312.14 26,359.35
3.50% ANNUAL INCREASE ADJUSTED ANNUALLY TO ACTUAL
1 - Tenant is responsible for own taxes and insurance; reimburses Landlord
for CAM only
2 - Option Period rent: To be negotiated prior to commencement
44
