Exhibit 10.13
MOUNTVILLE PENNSYLVANIA
Part I
MADE and executed this 9th day of December, 1996.
By and between DONNERVILLE ASSOCIATES, a Pennsylvania limited partnership
having its principal place of business at 0000 Xxxxxxxxxx Xxxx, Xxxx,
Xxxxxxxxxxxx 00000, herein called "Landlord"; and GEOSYSTEMS GLOBAL CORPORATION,
a Delaware corporation, having its principal place of business at 000 Xxxxxxx
Xxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000, herein called "Tenant."
Landlord does hereby Lease unto Tenant the "Premises" at the "Rent" for the
"Term" for the "Permitted Use" upon and under the Terms and Conditions set forth
in this Part I and Part II of the Lease Agreement (collectively, the "Lease")
all as follows. In case of conflict in definitions or other provisions of Part I
and of Part II, Part II shall control.
1. Premises.
1.1 Location: 3700-3750 Electronics Way, Township of West Hempfield,
County of Lancaster, Xxxxxxxxx, Xxxxxxxxxxxx 00000.
1.2 Tenant's Rentable Square Footage: 62,000 Square Feet.
1.3 Building Rentable Square Footage: 62,000 Square Feet, comprising
2 buildings connected by a corridor. See Exhibit A.
1.4 Tenant's Pro-Rate Share of Building: 100 Percent (100.00%).
1.5 The garage located on the Premises, comprising approximately 400
square feet, is included within the Leased Premises at no cost.
1.6 All unimproved area covered by legal description attached as
Exhibit A.
2. Improvements:
2.1 ( ) Premises Leased with existing improvements.
2.2 (X) Repairs/Improvements by Landlord to be completed for
Occupancy by April 1, 1997, excepting landscaping and
parking lot repairs which will be
completed as weather permits, but no later than June 15,
1997. (As per Exhibit B and Section 2 of Part II attached,
which includes provision for a tenant improvement allowance
of $275,000). No later than December 20, 1996, Tenant will
provide Landlord with a complete Tenant's Scope of Work
which shall delineate those items which Tenant intends to
contract with Xxxxxx X. Xxxx, Inc. to perform and which must
be completed prior to occupancy. Tenant will respond to
requests for information by Landlord's Contractor, Xxxxxx X.
Xxxx, Inc., within five (5) business days of any such
request. Every day of delay past the five (5) days allowed
will be considered one (1) day of Tenant Delay as set forth
in Section 2.1 of Part II.
3. Term:
3.1 Number of Years: Ten (10) Years.
3.2 Term Begins: April 1, 1997, subject to adjustment pursuant to
Section 3.1 of Part II attached.
3.3 Term Ends: March 31, 2007, subject to adjustment pursuant to
Section 3.1 of Part II attached.
3.4 Purchase Option as per attached Rider.
3.5 Option to Renew as per Section 3.2 of Part II.
4. Rent:
4.1 Base Rent for Entire Term: $6,198,262.65
4.2 Monthly Installments (subject to adjustment pursuant to
Section 3.1 of Part II attached):
April 1, 1997 through July 31, 1997 - $22,604.17
August 1, 1997 through October 31, 1997 - $33,906.25
November 1, 1997 through March 31, 1999 -$45,208.33
April 1, 1999 through March 31, 2000 - $49,083.33
April 1, 2000 through March 31, 2001 - $50,555.83
April 1, 2001 through March 31, 2002 - $52,072.50
April 1, 2002 through March 31, 2003 - $53,634.68
April 1, 2003 through March 31, 2004 - $55,243.72
April 1, 2004 through March 31, 2005 - $56,901.03
April 1, 2005 through March 31, 2006 - $58,608.06
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April 1, 2006 through March 31, 2007 - $60,366.30
4.3 Intentionally Deleted.
4.4 Last Month's Rent: $32,604.17 paid by Tenant at signing of Lease
shall be credited toward the last month's rent. This payment
shall earn interest at a three percent (3%) annual rate
compounded monthly which also shall be credited towards the
Tenant's last month's rent.
4.5 Pre-Commencement Operating Expenses: Tenant's obligation to pay
Operating Expenses attributable to the Premises shall commence
February 1, 1997, however, Landlord agrees that the cost to the
Tenant for electrical service to the Premises will not exceed
$3,000 per month from February 1 through April 1 or the
completion of construction, whichever occurs last, any such
excess to be paid by Landlord. The only other exception shall be
the obligation to maintain and pay for liability and fire
insurance, which shall be the responsibility of the Landlord
until March 30, 1997.
5. Permitted Use: Office, R&D, light assembly, warehouse, wholesale sales
and storage.
6. First Right of Refusal: Tenant shall have the First Right of Refusal
to purchase the Building, exerciseable by Tenant within thirty (30)
days of Tenant's receipt of a copy of the bona fide offer received by
Landlord from another party on the same terms and conditions as the
offer. This right shall not apply to the sale or transfer of the
property to an entity in which Xxxxxx X. Xxxx or Springwood Group,
Limited or their successors as general partner of Landlord (such
entity being and "Approved Entity") owns a controlling interest
provided that the sale or transfer of the property to the Approved
Entity is not done for the purpose of defeating Tenant's First Right
of Refusal.
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IN WITNESS WHEREOF, intending to be legally bound, the Landlord and Tenant
have caused this Part I presents to be signed by their duly authorized officers
or agents and their appropriate seals to be hereunto affixed, the day and year
first above written.
WITNESS: DONNERVILLE ASSOCIATES, "Landlord"
By: /s/ [ILLEGIBLE]
-------------------------------
Name: /s/ [ILLEGIBLE]
-------------------------------
Title: General Partner
/s/ [ILLEGIBLE]
____________________ By:
------------------------------
Name:
------------------------------
Title: General Partner
____________________ By:
-------------------------------
Name:
-------------------------------
Title: General Partner
WITNESS/ATTEST: GEOSYSTEMS GLOBAL CORPORATION
"Tenant"
/s/ [ILLEGIBLE]
____________________ By: /s/ XXXXX X. XXXXX
-------------------------------
Name: Xxxxx X. Xxxxx
-------------------------------
Title: President & CEO
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PART II
OF
LEASE DATED December 9,1996
between
DONNERVILLE ASSOCIATES, "Landlord" and
GEOSYSTEMS GLOBAL CORPORATION, "Tenant"
1. PREMISES.
The Landlord does hereby Lease unto the Tenant and the Tenant does hereby
lease from the Landlord the Premises with the improvements erected or to be
erected thereon, which is outlined in red on Exhibit "A", attached hereto and
made a part hereof, on the terms and conditions set forth in Parts I and II. The
rentable areas of the Building have been calculated on the basis of the
following definitions and it is hereby stipulated, absent manifest error, that
for all purposes of this Lease that the rentable areas are as set forth in Part
I of this Lease, whether the same be in fact more or less as a result of minor
variations resulting from actual construction and completion of the leased
premises for occupancy so long as such work is done in accordance with the terms
and provisions hereof.
In the event the Premises are part of a warehouse, flex building, business
center, or retail strip center, defined herein as a building where Tenants are
provided with their own private entrances, private restrooms and without any
interior common areas shared by Tenants, the "rentable area" shall refer to all
floor area measured from the outside surface of any exterior walls to the middle
of any demising walls.
2. IMPROVEMENTS
2.1 Tenant and Landlord agree that at the signing of this Lease, Tenant has
provided Landlord with all information necessary to prepare a Landlord's Scope
of Work for all build-out to be done by Landlord at Landlord's expense, and the
Landlord's Scope of Work is set forth in Exhibit B attached hereto. Landlord's
Scope of Work as described in Exhibit B (the "Landlord's Work") shall be
completed by or at the direction of Landlord, on or before April 1, 1997,
subject only to completion of "punch list" items agreed to in writing by
Landlord and Tenant, which items are not necessary for Tenant's reasonable use
and occupancy of the Premises ("Substantial Completion"). In the event the
Landlord's Work or Tenant's Scope of Work to the extent Tenant contracted with
Xxxxxx X. Xxxx, Inc. to perform the same (the "Xxxx Work") is not substantially
completed in a manner which would allow Tenant to occupy the Premises for its
intended use as aforesaid by April 1, 1997, Landlord will pay Tenant, except in
the case of Tenant caused delay (a "Tenant Delay"), the sum of $350 for each
business day completion of the Premises is delayed beyond May 1, 1997 (the "Per
Diem Damages"), such payment shall be tendered within
thirty (30) days of occupancy of the Premises by Tenant. In the event Landlord's
Work or Xxxx Work is not completed on or before May 1, 1997, Tenant shall have
the option of (a) completing Landlord's Work and the Xxxx Work at the cost and
expense of Tenant, by using contractors and/or laborers of Tenant's choosing,
whereby any such reasonable expenses so incurred by Tenant and not repaid to
Tenant by Landlord within thirty (30) days of Tenant's delivery to Landlord of
an invoice therefor, shall be credited as an offset against Tenant's obligation
to pay rent hereunder, or (b) allowing Landlord to complete Landlord's Work and
accepting the Per Diem Damages. It is agreed that "reasonable expenses" shall
mean the actual cost to the Tenant of materials, labor, fringe benefits,
payments to subcontractors, and any sales taxeS or permit fees on same incurred
by Tenant in connection with performing Landlord's Work or Xxxx Work.
"Reasonable expenses" does not include charges for management personnel of
Tenant who administer the work, the cost of utilities, any general allocations,
or any costs not directly related to the completion of Landlord's Work or Xxxx
Work. Landlord's obligation to repay Tenant shall not arise until Tenant has
supplied Landlord with reasonable substantiation for all such charges. Should
the parties disagree on whether Tenant has supplied reasonable substantiation,
Tenant shall have the right of offset as set forth above pending the outcome of
mediation of the matter.
Landlord hereby indemnifies Tenant against any and all liability, claims,
actions or damages arising from the performance of Landlord's Work by Landlord,
its contractors or agents. Landlord shall procure and file a stipulation against
liens and all releases and waivers from mechanics liens prior to commencement of
Landlord's Work. Notwithstanding Tenant's agreement to assume the payment of
defined Operating Expenses effective February 1, 1997, such obligation shall not
extend to the payment of expenses attributable to Landlord's Work and Landlord's
activities within the Premises.
2.2 Landlord agrees to provide Tenant with a $275,000 construction
allowance to be used any way that Tenant desires. Such funds must be used within
the first three years of occupancy. Any funds not utilized by Tenant will be
applied to the monthly rent as directed by Tenant in writing and within thirty
(30) days of receipt of such direction by Tenant. Upon Tenant's presentation to
Landlord of paid receipts or invoices for work completed within or on the
Premises, Landlord shall reimburse Tenant for those expenses up to the maximum
construction allowance of $275,000.
The parties have agreed that the Tenant improvement allowance of $275,000
is to be spent on the following improvements: (1) complete carpet replacement;
(2) demolition, renovation, and/or build-out of the bottom-half of the Annex;
and (3) to the extent Tenant elects to do so, upon of the work described by the
"Tenant's Scope of Work" as outlined in Exhibits B-1 through B-5, as can be
performed and Tenant elects to cover with the $275,000 allowance. Landlord
hereby grants its consent to Tenant's Scope of Work. At Tenant's election,
Tenant may contract with Xxxxxx X. Xxxx, Inc. to perform any of the work set
forth on Tenant's Scope of Work on a lump sum basis, as specified by Tenant as
set forth in Section 2.2 of Part I above. An itemized listing of the potential
work is listed in Exhibit B-1 through B-5.
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3. TERM.
Tenant shall have and hold the Premises for a ten (10) year term commencing
on the later to occur of April 1, 1997, or that date on which Landlord (or
Tenant, as the case may be) substantially completes construction of the
Landlord's Work and/or Xxxx Work (less punch list items) as provided in Section
2 of Part II hereof (the "Commencement Date"). Notwithstanding the foregoing, in
the event Substantial Completion is delayed as a result of a Tenant Delay or a
delay associated with Tenant's unreasonable actions or inactions following
Tenant's take-over of Landlord's Work or the Xxxx Work, the Commencement Date
shall not be delayed by that number of days attributable to such delays. If the
delay was due to the actions (or inactions) of both Landlord and Tenant, the
parties shall apportion the number of day delays between them by mutual
agreement. Should the parties be unable to agree, the matter shall be settled
through mediation.
In the event the Commencement Date is a day other than April 1, 1997, the
dates governing the monthly installments of rental due as set forth in Section
4.2 of Part I shall be adjusted accordingly, provided, however, that in the
event the Commencement Date falls on a day other than the first day of the
month, rental shall be apportioned for that first partial month at a per diem
rate so that the date designations as set forth in Section 4.2 shall always
reflect the first and last day of a month.
So long as Tenant is not in default of this Lease, Tenant shall have one
option to renew this Lease for an additional renewal term of three (3) years,
exerciseable by delivery of written notice to Landlord not later than the last
day of the ninth (9th) year of the Lease term. All terms and conditions of this
Lease shall apply to such renewal term except rent, which shall be established
prior to the first day of the renewal term at the then current fair market rent
for the area in which the Premises is located as determined by the mutual
agreement of the parties. This option expires and terminates on the last day of
the 9th year of the Lease Term. For purposes of this Lease, use of the word
"term" shall be deemed to include both the original ten (10) year term as well
as the three (3) year renewal term, to the extent applicable.
4. RENT.
4.1 Minimum Rent: The parties agree that the Minimum Rent (the "Rent") for
the Premises shall be as set forth in Section 4.1 of Part I, and so long as
Tenant is not in default Tenant shall pay such rent in the equal monthly
installments as set forth in Section 4.2 of Part I, in advance, on the first day
of each calendar month during the Term. In addition, Tenant shall pay Landlord,
without notice, demand, deduction or set-off, except as specifically set forth
herein, the Additional Rent (as hereinafter set forth) regardless of other
accommodations granted by Landlord to Tenant regarding the payment of minimum
annual rent. Landlord will promptly forward sewer bills to Tenant for payment.
4.2. Additional Rent: Tenant shall pay as additional rent, all Operating
Expenses (as hereinafter defined in 4.3 of Part II) related to the operation and
maintenance of or with respect to the Premises.
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4.3 Operating Expenses: Tenant agrees to pay as additional rent, in
addition to the base rental set forth in this Lease, the following expenses
(collectively, "Operating Expenses") which are necessary to effectively operate
and maintain the Premises: All Real Estate taxes, fees or assessments (excluding
any taxes, fees or assessments related to the future extension of Hempland
Road); all Fire, Casualty Liability, and Boiler Insurance Premiums attributable
specifically to the Premises and required to be maintained pursuant to Section
6.4 and 7 of this Lease; snow removal and lawn maintenance (as required pursuant
to Section 5.6); costs of water, sewer, gas, fuel, electricity and all other
utilities utilized by Tenant, janitorial service and trash removal (as required
pursuant to Section 5.5), including trash recycling as required by government
regulation, lighting costs and security as Tenant may from time to time deem
necessary, as well as the cost incurred by Tenant in connection with Tenant
performing the repairs and maintenance obligations imposed upon Tenant as set
forth in section 5.2 below.
5. UTILITIES AND SERVICES.
5.1 Utilities: Tenant shall be responsible for the payment of all
electricity, heating and air conditioning and water service utilized for the
normal use and occupancy of the Premises. Landlord reserves the right, without
any liability to Tenant, and without being in breach of any covenant of this
Lease, with as much prior notice to Tenant as is possible under the
circumstances, to interrupt or suspend service of any of the heating,
ventilating, air-conditioning, electric, sanitary, or other systems serving the
Premises, or the rendition of any of the other services required by Landlord
under this Lease, whenever and for so long as may be necessary by reason of
accident, emergencies, strikes or by reason of any other cause beyond Landlord's
reasonable control, excluding, however, difficulties resulting from failure to
pay the cost of such items, including without limitation mechanical failure and
governmental restrictions on the use of materials or the use of any of the
Building systems. With respect to the interruption or suspension of any required
service in connection with the making of repairs or changes which Landlord is
required by this Lease or by law to make or in good xxxxx xxxxx advisable,
Landlord agrees wherever possible to schedule such work outside of normal
business hours and in all cases to take such actions as are necessary to
minimize interference with Tenant's operations.
In each instance, however, Landlord shall exercise reasonable diligence to
eliminate the cause of interruption and to effect restoration of service as soon
as possible, and shall give Tenant reasonable notice under the circumstances,
and in all non-emergency situations at least 72 hours in advance of the
commencement and anticipated duration of such interruption. Except as
specifically set forth in Section 18.4(b) of this Part II, Tenant shall not be
entitled to any diminution or abatement of rent or other compensation or damages
nor shall this Lease or any of the obligations of the Tenant be affected or
reduced by reason of the interruption, stoppage or suspension of any of the
Building systems or services arising out of the causes set forth in this
paragraph so long as Landlord observes the terms of this section.
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5.2 Repairs: The Tenant shall at its sole cost and expense maintain in good
repair the Premises and every part thereof, including waste disposal systems,
and doors, excluding only the following which Landlord shall maintain in good
repair and to the extent necessary, replace, at Landlord's sole cost and
expense: heating, ventilating and air-conditioning systems ("HVAC"), roof,
skylights, foundation, exterior walls, downspouts and gutters, and damage
resulting from Landlord's failure to maintain the foregoing, provided, however,
that Tenant shall be required to make repairs to the HVAC, roof, foundation,
exterior walls, downspouts and gutters within thirty (30) days of written notice
by Landlord, if such repairs are occasioned by the negligence of Tenant, its
officers, employees, agents, customers or invitees, ordinary wear and tear
excepted. If Tenant requests that Landlord make the repairs on Tenant's behalf
or Landlord requires Tenant to perform repairs or maintenance which under the
terms of this Lease are Tenant's responsibility, Tenant shall pay the costs
associated with such repairs and maintenance, and they shall be considered as
additional rent. Tenant shall return the Premises in good condition and repair,
ordinary wear and tear excepted, and in a broom-clean condition upon expiration
of this Lease. In the event that Tenant fails to comply with any terms of this
paragraph then Landlord, following written notice to Tenant, shall undertake
such repairs and cleaning with Tenant being liable for all reasonable costs
thereof, including any expenses incurred by Landlord to enforce this provision,
whether they be court costs, reasonable attorneys' fees or any other cost of
collection and enforcement, and these costs shall be considered as Additional
Rent.
5.3 Heating Ventilation and Air Conditioning Maintenance and Repair.
(a) The Landlord shall perform at its sole cost and expense all preventive
and routine maintenance, repair and replacement of the heating, ventilation and
air conditioning equipment for the Premises during the entire term of Lease. The
Landlord shall procure and keep in effect at Landlord's sole cost a standard
preventive maintenance contract (see Exhibit "D"), on all heating, ventilating
and air conditioning equipment.
(b) Within thirty (30) days following the Commencement Date, Landlord, at
its expense, shall perform an air quality test on the HVAC system and deliver
the results of such test to Tenant. In the event the results of such test are
not reasonably satisfactory to Tenant, Landlord shall, at its sole cost and
expense, make the repairs or replacements necessary to provide air quality test
results which are satisfactory within thirty (30) days of the issuance of the
test results and Landlord shall then conduct a follow-up test confirming
satisfactory conditions within sixty (60) days of the date of the issuance of
the initial test results, which test results shall be delivered to Tenant.
5.4 Clean Condition: The Tenant shall keep the Premises in a clean,
sanitary and safe condition in accordance with the laws, ordinances and
regulations of the Federal Government, Commonwealth of Pennsylvania, and of the
Township in which the Premises is situated, provided, however, that such
obligation shall not impose upon Tenant any responsibility or liability to
perform those maintenance, repair and replacement obligations otherwise imposed
upon Landlord under the terms of this Lease. Tenant shall comply with all
requirements of law, ordinances and regulations, including those relating to
occupational safety and health, in connection with Tenant's business operations
within the
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Premises. Except for dumpsters, neither trash nor any other material or thing
shall be stored outside the Premises and storage in, or use of, above-ground
storage tanks is prohibited. Tenant may maintain storage trailers and other
similar storage facilities (excluding tanks) on the Premises provided such
facilities comply with all applicable laws. In the event the Tenant fails to
comply with any terms of this paragraph within thirty (30) days written notice
of said violation(s), then Landlord shall, following telephonic notice to
Tenant, undertake such steps which are necessary to rectify the violation(s)
with Tenant being liable for all cost thereof, including any penalty or fine(s)
associated with said violation(s) and any expenses incurred by Landlord to
enforce this provision, whether court costs, attorneys' fees or any other cost
of collection and enforcement. Tenant shall not be responsible for correcting
conditions on the Premises necessary to comply with the Americans With
Disabilities Act ("ADA") or laws relating to health, safety or the environment
if such conditions existed as of the Commencement Date of the Lease and were
then not in compliance with ADA or laws relating to health, safety or the
environment; rather, Landlord shall correct such conditions and be obligated to
bring the Premises into compliance with such laws at its sole cost and expense.
If the conditions did not exist as of the Commencement Date of the Lease or
did exist, but were then in compliance with laws relating to health, safety or
the environment (excluding ADA), Landlord shall nevertheless correct such
conditions and be obligated to bring the Premises into compliance with such laws
at its sole cost and expense, but may treat such expenses as "Operating
Expenses," to be passed through to Tenant, provided however, that the cost of
correction of such conditions shall be amortized over the useful life thereof,
together with interest at the actual interest rate incurred by Landlord in
connection with such cost of correction, and only that portion attributable to
any one Lease year shall be chargeable to Tenant as an Operating Expense in that
Lease year, and payable by Tenant within thirty (30) days of receiving an
invoice therefor.
5.5 Janitorial Service: Tenant shall contract for and pay for janitorial
services and the prompt removal of all trash from the Premises.
5.6 Snow Removal and Lawn Maintenance: Tenant shall mow lawns, trim
shrubbery, used where appropriate and remove snow from walkways, roadways and
parking areas in accordance with the minimum requirements set forth in Exhibit
6.
6. INSURANCE.
6.1 Fire Insurance. Tenant will not conduct or permit to be conducted, any
activity or place any equipment in or about the Premises, which will, in any
way, increase the rate of fire insurance or other insurance on the Premises;
provided, however, if any increase in the rate of fire insurance or other
insurance is stated by any insurance company or by the applicable Insurance
Rating Bureau to be due to any activity or equipment of, in or about the
Premises controlled by Tenant, such statement shall be conclusive evidence that
the increase in such rate is due to such activity or equipment of result
thereof, Tenant shall be liable for such increase in the cost of fire insurance,
or other
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insurance, which increase shall be considered additional rent payable hereunder,
and Tenant shall be responsible for the payment thereof
6.2 Indemnity: The Tenant covenants with the Landlord that Landlord shall
not be liable for any damage or liability of any kind or for any injury to or
death of persons or damage to property of Tenant or any other person during the
term of this Lease, by reason of the use, occupancy and enjoyment of the
Premises by the Tenant or any person thereon or holding under said Tenant,
absent Landlord's, its designated agents', servants' or employees' negligence or
willful misconduct. Tenant will indemnify and save harmless the Landlord from
all liability, on account of any such real or claimed damage or injury and from
all liens, claims and demands arising out of the Tenant's, its agents employees,
contractors, licensees, invitees and others on the Premises for or on behalf of
Tenant, use of the Premises and its facilities, or any repairs or alterations
which the Tenant may make upon said Premises, but the Tenant shall not be liable
for damage or injury occasioned by the negligence or willful misconduct of the
Landlord and its designated agents, servants or employees or latent defects on
the Premises of which Tenant has no knowledge. This obligation to indemnify
shall include reasonable attorney's fees and required investigation costs and
all other reasonable costs, expenses and liabilities from the first notice that
any claim or demand is to be made or any be made.
6.3 Waiver of Subrogation: Intentionally Deleted.
6.4 Tenant Insurance: Tenant further covenants and agrees that from and
after the delivery of the Premises from Landlord to Tenant, Tenant will carry
and maintain, at its sole cost and expense, in addition to fire insurance under
Section 7 below, the following types of insurance, the amounts specified and in
the form hereinafter provided for:
6.4.1 Public Liability and Property Damage: Public liability and
property damage insurance with a combined single limit of One Million
dollars ($1,000,000.00) insuring against any and all liability of the
insured with respect to said Premises or arising out of the maintenance,
use or occupancy thereof All such bodily injury liability insurance and
property damage liability insurance shall specifically insure the
performance by Tenant of the indemnity provisions as to liability for
injury to or death of persons and injury or, damage to property in this
Section 6 contained.
6.4.2 Tenant Improvements: Insurance covering all of the following
items, all leasehold improvements, trade fixtures, merchandise and personal
property from time to time in, on or upon the Premises, and personal
property, of others in Tenant's possession, in an amount not less than the
full replacement costs without deduction for depreciation from time to time
during the term of the Lease, providing protection against any peril
included within the classification "Fire and Extended Coverage," together
with insurance against sprinkler damage, vandalism and malicious mischief
Any policy proceeds shall be used for the repair or replacement of the
property damaged or destroyed as Tenant may elect.
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6.4.3 Policy Form: All policies of insurance provided for herein shall
be issued by insurance companies with general policyholders' rating of not
less than A and a financial rating of AAA as rated in the most current
available "Best's Insurance Reports," and qualified to do business in the
State of Pennsylvania, and shall be issued in the name of Tenant. Such
policies shall include Landlord and such other persons or firms as Landlord
specifies as an additional insured and as a certificate holder, and
executed copies of such policies of insurance or certificates hereof shall
be delivered to the Landlord no later than ten (10) days before delivery of
possession of the Premises to Tenant and thereafter no less than thirty
(30) days prior to the expiration of the term of such policy. In respect of
all public liability and property damage policies Landlord and such other
persons or firms as Landlord specifies from time to time, shall be entitled
to recovery under said policies for any loss occasioned to it, its
servants, agents and employees by reason of the negligence of the Tenant as
an additional insured and certificate holder. As often as any such policy
shall expire or terminate, renewal or additional policies shall be procured
and maintained by the Tenant in like manner and to like extent. All
policies of insurance delivered to the Landlord must contain a provision
that the company writing said policy will give to the Landlord twenty (20)
days' notice in writing in advance of any cancellation or lapse or the
effective date of any reduction in the amounts of insurance. All public
liability, property damage and other casualty policies shall be written as
primary policies, not contributing with and not in excess of coverage which
the Landlord may carry.
6.4.4 Failure of Tenant to Obtain: In the event that Tenant fails to
procure and/or maintain any insurance required by this Section, or fails to
carry insurance required by law or governmental regulation, Landlord may
(but without obligation to do so) at any time or from time to time, and
without notice (provided however, that notice and an opportunity to obtain
such insurance shall be given if the insurance is required by law, but not
specifically required by the terms of this Lease), procure such insurance
in which event Tenant shall repay the Landlord all sums so paid by
Landlord, together with interest thereon as provided in Section 20 hereof,
and any incidental costs or expenses incurred by Landlord in connection
therewith, within ten (10) days following Landlord's written demand to
Tenant for such payment. In case Landlord procures insurance under this
section, it will notify Tenant of its doing so within thirty (30) days, but
its failure to give' notice will not affect Tenant's obligation to insure
under this Lease.
6.5 Blanket Policy: Notwithstanding anything to the contrary contained
within this Section 6, the Tenant's obligations to carry the insurance provided
for herein may be brought within the coverage of a so called blanket policy or
policies of insurance carried and maintained by the Tenant; provided, however,
that the Landlord and others hereinabove mentioned shall be named as an
additional insured thereunder as their interests may appear and that the
coverage afforded the Landlord will be not reduced or diminished by reason of
the use of such blanket policy of insurance, and provided further that the
requirements set forth herein are otherwise satisfied. The Tenant agrees to
permit the Landlord at all reasonable times to inspect the policies of insurance
of the Tenant covering risks upon the Premises for which policies or copies
thereof are not required to be delivered to the Landlord.
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7. FIRE INSURANCE.
Landlord shall procure and maintain in full force and effect until March
30, 1997, non-assessable fire and extended coverage insurance policies.
Commencing on March 30, 1997, and throughout the entire Term, Tenant shall
procure and maintain in full force and effect, standard fire and extended
coverage insurance insuring the Premises for the full replacement value thereof,
but in no event less than $3,500,000 against all risks of direct physical loss
and which insurance shall include protection against those occurrences covered
by standard "extended coverage" clause. Such policies shall name Landlord as the
insured, as well as Landlord's mortgagee, if so requested by Landlord. In the
event of loss, insurance proceeds shall be held in escrow by Landlord's
mortgagee, if any, and otherwise by an escrow agent selected by Landlord pending
repair of the damages by Landlord, and upon completion of the repairs by
Landlord, the proceeds shall be paid to Landlord or paid to Landlord's mortgagee
if required by it. In the event Landlord or Tenant elects to terminate the Lease
on account of fire or other casualty as hereinafter provided, insurance proceeds
shall be paid immediately to Landlord or its mortgagee if required by it.
Without affecting Tenant's obligations under this Lease to carry insurance,
Landlord agrees to maintain liability insurance covering Landlord in an amount
and with companies which meet the requirements of Section 6.4.1 and 6.4.3 of
this Part II.
8. USE OF BUILDING.
The parties hereto agree that the Premises will be used only for the
permitted /use set forth in SectionS of Part land uses incidental thereto.
Tenant shall not permit the Premises to become vacant unless and until Tenant
provides for biweekly security checks, at Tenant's sole cost and expense, for
the duration of such vacancy.
9. ALTERATIONS.
Tenant shall not make any alterations, additions or improvements to the
Premises without the prior obtained written consent of Landlord, which consent
will not be unreasonably withheld or delayed. Landlord hereby grants its consent
to the alterations set forth on Exhibit B. In no event shall any such
alteration, addition, or improvement weaken the structure of or impair any
Building on the Property. Any alteration, addition, or improvement to the said
Premises shall be done in accordance with the applicable City or Township,
County and State laws and ordinances, and building and zoning rules and
regulations. Tenant hereby expressly assumes full responsibility for all damages
and injuries which may result to any person or property by reason of or
resulting from alterations, additions, or improvements made by it to the
Premises, and shall hold Landlord harmless with respect thereto. Tenant shall
procure and file a stipulation against liens and all releases and waivers from
Mechanics Liens prior to commencement of any construction at the Property, and
copies of said stipulations, releases and waivers shall be delivered to Landlord
not later than forty-eight (48) hours prior to commencement. All alterations,
shall remain on the Premises at the termination of the Lease and shall become
the property of the Landlord, unless at the time the consent for the alteration
was given by Landlord, the Landlord directed the alterations be removed at the
termination of the Lease in which event they shall be
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removed and the Premises shall be returned, at the expense of Tenant, to its
condition prior to the alteration. All machines, equipment, and supplies to be
placed upon the Premises by the Tenant and not included on the plans and
specifications for the Building shall remain the property of the Tenant and
shall be removed by Tenant at the termination of the Lease; but the Tenant
agrees to repair any damage to the Premises caused by the removal of such
machines, equipment, or supplies. Notwithstanding anything contained in this
section to the contrary, prior written consent of Landlord shall not be required
for any alteration or course of alterations made within any one (1) calendar
year that have an aggregate value of less than $10,000.
10. SIGNS AND EXTERIOR ATTACHMENTS.
10.1 Signs: Tenant, at its cost, will obtain and maintain in good repair
any exterior signage Tenant installs on the Premises. All signage will comply
with all applicable laws, ordinances, codes and regulations.
10.2 Exterior: Intentionally Deleted.
10.3 Interior: Tenant shall have the right, at its sole cost and expense,
to erect and maintain within the interior of the Premises all signs and
advertising matter customary or appropriate in the conduct of Tenant's business.
10.4 Windows: Tenant shall at all times maintain all windows on the
Premises in a neat, clean and orderly condition.
10.5 General Appearance. Tenant acknowledges the appearance of the Premises
affects the value of other nearby real estate and that Landlord has a direct
economic interest in the appearance of the Premises. Accordingly, Tenant shall
keep the exterior of the Premises in a neat and orderly condition in accordance
with Tenant's obligations under the terms of this Lease.
11. FIRE OR CASUALTY.
In case of damage to the Premises by a risk insured against under Paragraph
7 of this Part II, Landlord, unless the Lease is terminated as hereinafter
provided, shall repair or cause to be repaired such damages with reasonable
dispatch after receiving from the Tenant written notice of the damage. If the
damage is such as to render the Premises untenantable, the rent shall be abated
to an extent corresponding with the period during which and the extent to which
the Premises have become untenantable; provided, however, if such damage is
caused by the negligence or willful misconduct of Tenant or of a subtenant, or
the agents, employees, visitors, invitees or licensees of Tenant or of a
subtenant, then notwithstanding such damage and untenantability, Tenant shall be
liable for rent without abatement. In the event of damage to the Premises to the
extent that more than fifty (50%) percent of the value of such Premises, Tenant
shall give Landlord written notice of the damage, (but failure to give notice
shall not be binding upon Landlord) after which Tenant may determine with
reasonable dispatch whether the Lease shall be terminated, and, if
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terminated, all rent shall xxxxx and the Lease terminate as of the date of the
occurrences of the event causing such damage. Notwithstanding anything contained
herein to the contrary, Landlord shall have no obligation to rebuild the
Premises in case of damage to the Premises occurring in the tenth year of the
Lease term, which damage would reasonably take more than six (6) months to
restore, or if following a reasonable period of time for restoration, would
leave less than four (4) months remaining in the unexpired Term of this Lease.
Should Landlord elect not to rebuild under such circumstance, and Tenant elect
to terminate this Lease, this Lease shall terminate as of the date of the
casualty except that Tenant shall have a reasonable time thereafter to remove
its equipment, personal property and the like from the Premises.
12. EMINENT DOMAIN.
The Tenant may at its option terminate this Lease if any portion of the
Premises is condemned by any governmental body or by any other body or
organization possessing the power of condemnation provided such condemnation
substantially impairs the use or enjoyment by Tenant of the Premises. In case of
the taking through eminent domain of all, or any portion, of the Premises, the
Landlord shall notify the Tenant in writing of such taking. Within sixty (60)
days after receipt of such written notice, the Tenant shall notify the Landlord,
in writing, whether such taking through eminent domain, in the opinion of the
Tenant substantially impairs its use or enjoyment of the Premises. If Tenant's
use or enjoyment is substantially impaired, then Tenant shall given written
notice to Landlord of its intent to vacate the Premises, which notice shall
include the time when it desires to terminate /the Lease, which time shall not
be later than the date on which title vests in the condemning authority. The
failure of the Tenant to give notice set forth above as required and within the
time limit set forth above, shall be conclusively construed as a decision on the
Tenant's part that such taking does not substantially impair its use or
enjoyment of the Premises, unless the taking is a total taking. On the other
hand, the giving of such notice by the Tenant does not bind the Landlord as to
the correctness of the Tenant's decision that its use or enjoyment of the
Premises is substantially impaired by the taking, and Landlord may object to
same and demand a decision be made by mediation. In the event Tenant does not
terminate this Lease as aforesaid, Landlord shall promptly restore the balance
of the Premises remaining after the taking. Tenant shall not be entitled to
receive any part of any award or awards that may be made to or received by
Landlord, relating to the fair market value of the real estate taken or
severance damage to the remaining real estate of Landlord. Tenant at its expense
may take independent proceedings against the public authority exercising the
power of eminent domain to prove and establish any damage Tenant may have
sustained relating to Tenant's business and relocation expenses.
13. TOXIC WASTES, ETC.
13.1 Tenant shall not place, locate on, or use any portion of the Premises
for the production, storage, deposit or disposal of toxic, dangerous or
hazardous substances or pollutants, including, but not limited to, nuclear fuel
or wastes in violation of any applicable law or governmental regulation, which
substances or pollutants, if found upon the Premises or if found elsewhere, in a
form which violated applicable law, and determined to
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have come from the Premises in violation of any applicable law or governmental
regulation, would subject Landlord to any damages, penalties or liabilities
under any applicable federal, state or local law, or under any civil action.
13.2 Tenant shall not bury or place any underground storage tanks on the
Premises whether or not such storage tanks would be subject to the jurisdiction
of the Environmental Protection Agency under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 and the Resource Conservation
and Recovery Act, as amended.
13.3 Tenant shall not place on or within the Premises in violation of any
applicable law or governmental regulation, any hazardous material including, but
not limited to, ureformaldehyde foam insulation, polychlorinated biphenyls and
asbestos.
13.4 Tenant shall indemnify, defend and hold harmless Landlord, its
successors and assigns from and against any and all claims, legal or equitable,
damages, liability or loss (including reasonable attorneys' fees) arising out of
or in any way connected to any condition caused or created by the Tenant's
failure to comply with Sections 13.1, 13.2 and 13.3 during any portion of the
Lease term as set forth in Sections 3.2 and 3.3 of Part I, including, but not
limited to, damage liability or loss under all federal, state and local
environmental laws, strict liability and common law.
13.5 Landlord shall indemnify, defend and hold harmless Tenant, its
successors and assigns, from and against any and all claims, legal or equitable
damages, liability, or loss (including reasonable attorneys' fees) under
federal, state or local environmental laws, where Tenant's liability thereunder
is solely due to Tenant's Lease of the Premises, arising from (a) any condition
existing on the Premises prior to the date of Tenant's occupancy of the
Premises, or (b) Landlord's failure prior to the date of Tenant's occupancy of
the Premises to perform its obligations under federal, state or local
environmental laws in respect of the Premises.
14. NON-LIABILITY OF LANDLORD.
(a) The Landlord shall not be liable to the Tenant, any officer, employee,
agent, invitee, licensee or visitor of the Tenant, or any other person, for
damage or injury to any person or property caused in whole or in part, by any
act, omission or neglect of the Tenant, its contractor, employees or agents,
invitee, licensee, or visitor, or any happening in any manner on the Premises
and Tenant shall indemnify, defend and hold harmless Landlord from claim, loss
or liability therefor provided, however, Landlord shall be liable for its, and
its designated agents, servants and employees own negligence or willful
misconduct.
(b) All property kept, stored or maintained on the Premises shall be so
kept, stored or maintained at the risk of the Tenant only, and the Landlord
shall not be liable for any loss or damage to the Tenant or his property.
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(c) Landlord's liability to Tenant or anyone claiming through Tenant shall
be limited to Landlord's interest in the Premises. The foregoing shall be
absolute and without exception whatsoever.
15. SUBLEASE.
15.1 The Tenant shall not have the right to sell, assign, transfer,
mortgage or pledge the Premises without the Landlord's prior written consent,
which consent shall not be unreasonably withheld or delayed. In the event the
Tenant proposes to sublease or sublet the Premises or any portion thereof,
Tenant shall give to Landlord its written notice, which notice shall set forth
(i) the identity, business and financial condition of the proposed sub-tenant,
(ii) the terms and conditions of the proposed sublease, and (iii) and any other
relevant information reasonably requested by Landlord. Unless Landlord shall
expressly agree in writing to the contrary, no assignment or sublease shall
modify or limit any right or power of Landlord hereunder or affect or reduce any
obligation of Tenant hereunder. In the event that the proposed sublease is of a
portion of the Premises, and Landlord consents to the sublease, the rent in this
lease shall be prorated between the portion proposed to be subleased and the
balance of the Premises on a square foot basis. Tenant shall pay any costs
associated with or resulting from any proposed sublease of the Premises.
Landlord and Tenant hereby agree that the requirement that Tenant obtain
Landlord's consent prior to mortgaging the Premises does not limit Tenant's
right to, or require Tenant to obtain the consent of Landlord in the event
/Tenant elects to finance Tenant's personal property, equipment, trade fixtures,
accounts receivable or other property.
15.2 Tenant shall pay all of Landlord's reasonable cost and expenses
(including attorneys' fees) in connection with Landlord's review of any proposed
subletting or assignment.
15.3 Notwithstanding the provisions of Section 15.1 as they apply to
subleasing, Tenant hereby agrees to assume the reasonable costs associated with
obtaining the local government's consent to a requested subleasing, including
the cost of any related development requirements, should such consent or
development requirements be required, provided however, that Tenant may withdraw
its request to sublease, in the exercise of its sole discretion, if the
estimated cost of obtaining such consent and the related development
requirements is not acceptable to Tenant. To the extent Tenant agrees to assume
such costs or a waiver of any applicable land development plan, processing is
granted by the local government with respect to such sublease, Landlord may not
withhold its consent to such subleasing. In the event such government approvals
are required, Landlord agrees to cooperate with Tenant in connection with
obtaining such approvals.
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16. VOLUNTARY OR INVOLUNTARY ASSIGNMENT.
(a) Neither this Lease nor any interest therein shall be assignable or
otherwise transferable by operation of law or by voluntary assignment to or for
the benefit of creditors without the written consent of the Landlord, and such
inhibition against voluntary assignment includes and comprehends any and every
assignment which might otherwise be affected or accomplished by bankruptcy,
receivership, attachment, execution or other judicial process or proceeding. If
any assignment for the benefit of its creditors should be made by the Tenant, or
if a voluntary or involuntary petition in bankruptcy, or for reorganization, or
for an arrangement should be filed by or against the Tenant, or if the Tenant
should be adjudicated a bankrupt or insolvent, or if a receiver is appointed of
or for the Tenant, or for all or substantially all of its assets, or if any such
assignment or transfer by operation of law should occur, then and in any such
event, the Landlord may at its option, terminate this Lease by notice to the
Tenant if any such involuntary petition or assignment is not discussed with
sixty (60) days. The provisions of this paragraph shall not apply to any of the
rights, titles and interest of the Landlord in, to or under this Lease.
(b) So long as Tenant is not in default of this Lease, notwithstanding
anything contained in this Lease to the contrary, Tenant shall, without the
prior written consent of Landlord, have the right to assign this Lease to any
parent, subsidiary or affiliate of Tenant, or any other entity which acquires
all, or substantially all, of Tenant's business by sale, merger or otherwise,
except as may be specifically prohibited in Section 16 hereof, and provided
further, such entity acquiring all or substantially all of Tenant's business
possesses equal or greater creditworthiness than Tenant in the exercise of
Landlord's reasonable judgment and Tenant provides reasonable written evidence
of such creditworthiness to Landlord.
17. SURRENDER AT LEASE TERMINATION.
The Tenant shall, upon the termination of the Term of this Lease, surrender
to the Landlord the Premises, ordinary wear and tear excepted, and all building
apparatus, machinery, equipment and fixtures situated thereon except items which
may be removed under Section 9 of Part II. All alterations, improvements, and
other additions made or installed by either party to, in, upon, or about the
Premises shall either be removed by Tenant under Section 9 of Part II or become
the property of the Landlord pursuant to Section 9, and if Landlord elected to
keep the same they shall be surrendered to the Landlord by the Tenant in good
condition or repair, ordinary wear and tear excepted, otherwise Tenant shall
repair any damage caused by removal. The Tenant waives notice to quit at the end
of the Term or at the termination of the Lease for any cause, except as may be
specifically set forth herein.
18. DEFAULT OF TENANT.
18.1 Events of Default: If Tenant shall (i) fail to pay any monthly
installment of rent (as required by Section 4 hereof) or shall fail to timely
make any other payment required by the terms and provisions hereof and shall
continue in default of such payment for a period often (10) days after written
notice thereof is given by Landlord, or
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(ii) violate or fail to perform any other terms, conditions, covenants or
agreements herein made by Tenant and shall continue in default of such term,
condition, covenant or agreement for a period of thirty (30) days after written
notice thereof is given by Landlord, or if Tenant commences a cure and is
diligently proceeding to complete such cure, the aforesaid thirty (30) day
period will be extended as reasonably required to complete such cure, or (iii)
abandon or vacate the Premises and fail to provide the security checks required
by Section 8 hereof, or (iv) make or consent to an assignment for the benefit of
creditors or a common law composition of creditors, or a receiver of Tenant's
assets is appointed, or Tenant files a voluntary petition in any bankruptcy or
insolvency proceeding, or an involuntary petition in any bankruptcy or
insolvency proceeding is filed against Tenant and not discharged by Tenant
within sixty (60) days, or adjudicated a bankrupt, then Tenant shall be deemed
to have committed an Event of Default, and not withstanding any other remedies
allowable by law, and in any of said events, this Lease shall, at the option of
Landlord, cease and terminate and the provisions of this Section 18 shall
automatically operate as a notice to quit (any notice to quit, or of Landlord's
intention to re-enter, being expressly waived) and Landlord may proceed to
recover possession under and by virtue of the provisions of the Laws of the
Commonwealth of Pennsylvania or by such other proceedings, including reentry and
possession, as may be applicable.
Should this Lease be terminated before the expiration of the term of this
Lease by reason of Tenant's default as hereinabove provided, the Premises may be
relet by Landlord for such rent and upon such terms as are not unreasonable
under the circumstances and, if the full rental hereinabove provided and any of
the costs, expenses, or damages indicated below, shall not be realized by
Landlord, Tenant shall be liable for all damages sustained by Landlord,
including without limitation, deficiency in rent, reasonable attorneys' fees,
brokerage fees, and reasonable expenses of placing the Premises in first class
rentable condition, normal wear and tear excepted.
Any damage or loss of rent sustained by Landlord may be recovered by
Landlord, at Landlord's option, at the time of the reletting, or in separate
actions, from time to time, as said damage shall have been made more easily
ascertainable by successive relettings, or, at Landlord's option may be deferred
until the expiration of the term of this Lease, in which event Tenant hereby
agrees that the cause of action shall not be deemed to have accrued until the
date of expiration of said term.
18.2 Landlord's Remedies:
(a) Upon the occurrence of an Event of Default hereunder, Landlord, at
Landlord's sole option, shall have the right to exercise any or all of the
remedies set forth herein, all of which shall be cumulative and in addition to
any and all rights and remedies now or at any time hereafter provided at law or
in equity. The exercise of any one or more remedies provided herein shall not
act as a waiver of or preclude exercise of any other right or remedy of
Landlord.
(b) Upon the occurrence of an Event of Default hereunder, Landlord may
declare the entire rent for the balance of the term immediately due and
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payable. Said rent shall be discounted back to present value using the five (5)
year U.S. Treasury Bond rate in effect at the date of default.
(c) Upon the occurrence of an Event of Default hereunder, Landlord shall
have the right immediately and without notice to Tenant to terminate the term of
this Lease whereupon the estate hereby granted shall expire and terminate on the
date of such Event of Default or such later date as Landlord shall, in its sole
discretion determine, as fully and completely and with the same effect as if
such date were the date herein fixed for the expiration of the term of this
Lease, and all rights of Tenant hereunder shall expire and terminate, but Tenant
shall remain liable for all amounts due to Landlord hereunder, including but not
limited to the entire amount of rent including additional rent for the unexpired
balance of the Term discounted back to present value in accordance with
subsection (b) above.
(d) Upon the occurrence of an Event of Default hereunder, Landlord shall
have the immediate right to reenter and repossess the Premises by summary
proceedings, ejectment or in any manner Landlord determines to be necessary or
desirable and Landlord shall have the right to remove all persons and property
therefrom. Landlord shall be under no liability by reason of any such re-entry,
repossession or removal. No such reentry or repossession of the Premises shall
be construed as an election by Landlord to terminate the term of this Lease
unless a written notice of such intention is given to Tenant pursuant to this
paragraph, or unless such termination is decreed by a court of competent
jurisdiction.
(e) For the purpose of obtaining possession of the Premises in the event of
any Event of Default hereunder, Tenant hereby authorizes and empowers, sixty
(60) days after the expiration of the notice and cure period given to Tenant for
Tenant's default, any attorney or the Prothonotary or clerk of any court of
record in the Commonwealth of Pennsylvania or elsewhere, as attorney for Tenant,
to sign an agreement for entering in any competent court an amicable action or
actions in ejectment for possession of the Premises and to appear for and
confess judgment against Tenant, and against all persons claiming under or
through Tenant, in favor of Landlord, for recover of possession thereof, for
which this Lease, or a copy thereof verified by affidavit, shall be a sufficient
warrant; and thereupon a writ of possession may immediately issue for possession
of the Premises, without any prior writ of proceeding whatsoever and without any
stay of execution. If for any reason after such action has been commenced it
shall be discontinued, or possession of the Premises shall remain in or be
restored to Tenant, Landlord shall have the right for the same default or any
subsequent default to bring one or more further amicable actions as above
provided to recover possession.
(f) Tenant hereby irrevocably authorizes and empowers, sixty (60) days the
expiration of the notice and cure period given to Tenant for Tenant's default,
any attorney or the Prothonotary or clerk of any court of the Commonwealth of
Pennsylvania, or elsewhere, to appear as attorney for Tenant in any action
brought against Tenant on this Lease at the suit of Landlord to confess or enter
judgment against Tenant for all rent, additional rent and other amounts due from
Tenant to Landlord pursuant to the terms
- 16 -
of this Lease, together with costs of suit and attorneys' commission of five
percent (5%) for collection (provided the amount collected shall not be in
excess of actual attorneys fees incurred), and for so doing this Lease or a copy
hereof verified by affidavit shall be of sufficient warrant. The authority
granted herein to confess judgment shall not be exhausted by any exercise
thereof and shall continue from time to time and at all times until payment in
full of all amounts due to Landlord hereunder, including but not limited to all
rent and additional rent hereunder.
(g) At any time or from time to time after the reentry or repossession of
the Premises, whether or not the term of this Lease shall have been terminated,
Landlord may (but shall be under no obligation to) relet the Premises for the
account of Tenant, in the name of Tenant or Landlord or otherwise, without
notice to Tenant, for such term or terms and on such conditions and for such
uses as Landlord, in its reasonable discretion may determine. Landlord may
collect and receive any rents payable by reason of such reletting. Landlord
shall not be liable for any failure to relet the Premises or for any failure to
collect any rent due upon any such reletting.
(h) No expiration or termination of the term of this Lease by reason of the
occurrence of an Event of Default and no reentry or repossession of the Premises
by reason of an Event of Default shall relieve Tenant of its obligations and
liabilities hereunder, all of which shall survive such expiration, termination,
reentry or reletting.
18.3 Waiver: No waiver by Landlord of any breach of any covenant, condition
or agreement herein contained shall operate as a wavier of any subsequent breach
thereof No payment by Tenant or receipt by Landlord of a lesser amount than the
monthly installment of rent herein stipulated shall be deemed to be other than
on account of rent, nor shall any endorsement or statement on any check or
letter accompanying a check for payment of rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
landlord's right to recover the balance of such rent or to pursue any other
remedy provided in this Lease. Payment received by Landlord when Tenant is in
arrears shall be applied to amounts owed by Tenant as Landlord determines. No
re-entry by Landlord, and no acceptance by landlord of keys from Tenant, shall
be considered an acceptance of a surrender of the Lease.
18.4 Right of Each Party to Cure the Other Party's Default:
(a) If Tenant defaults in the making of any payment or in the doing of any
act herein required to be made or done by Tenant beyond any applicable notice
and cure period, then Landlord may, but shall not be required to, make such
payment or do such act, and charge the amount of the expense thereof, if made or
done by Landlord, with interest thereon at the rate defined in Section 20 from
the date paid by Landlord to the date of payment thereof by Tenant and such
charge or expense and interest thereon shall be Additional Rent hereunder;
provided, however, that nothing herein contained shall be construed or
implemented in such a manner to allow Landlord to charge or receive interest in
excess of the maximum legal rate then allowed by law. Such payment and interest
shall
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constitute additional rent hereunder due and payable with the next monthly
installment of rent, but the making of such payment or the taking of such action
by Landlord shall operate to cure such default unless Tenant is otherwise in
default of the Lease.
(b) If Landlord defaults in the doing of any act herein required to be done
by Landlord pursuant to the terms of Sections 5.1, 5.2, 5.3 or 5.4 of this Part
II for more than ten (10) days beyond delivery of written notice of such default
to Landlord by Tenant, and Landlord's default is of such a nature that (i) it
materially interferes with Tenant's ability to conduct its business in the
Premises, or (ii) failure to immediately correct such default or take such
curative action would lead to material interference with Tenant's ability to
conduct its business in the Premises, Tenant shall have the right, but not the
obligation to do such act at Tenant's expense, whereby any reasonable expenses
so incurred by Tenant and not repaid to Tenant by Landlord within thirty (30)
days of Tenant's delivery to Landlord of reasonable substantiation therefor,
shall be credited as an offset against the rent otherwise due by Tenant.
Notwithstanding the foregoing, Tenant shall have no such limited cure and offset
right if within such ten (10) day period, Landlord commences and diligently
performs to completion the requested act as required by the terms of this Lease.
For purposes of this Section, "reasonable expenses" shall be defined as set
forth in Section 2.1(a) of Part II and any disagreement between Landlord and
Tenant as to whether the expenses so incurred are "reasonable expenses" shall be
handled pursuant to the procedure set forth in Section 2.1(a) of Part II.
18.5 Late Payments: If Tenant fails to pay any installment of rent (in
accordance with Section 4) by the tenth (10th) day of the calendar month, or ten
(10) days after such installment has become due and payable, Tenant shall pay to
Landlord a late charge of five percent (5%) of the amount of such installment,
and, in addition, such unpaid installment shall bear interest at the rate
defined in Section 20, from the date such installment becomes due and payable to
the date of payment thereof by Tenant; provided, however, that nothing herein
contained shall be construed or implemented in such a manner as to allow
Landlord to charge or receive interest in excess of the maximum legal rate then
allowed by law. Such late charge and interest shall constitute additional rent
hereunder due and payable with the next monthly installment of rent.
19. HOLDING OVER.
In the event that Tenant shall not immediately surrender the Premises on
the date of expiration of the term hereof, Tenant shall, by virtue of the
provisions hereof, become a tenant by the month at 125% of the monthly rent for
the immediately preceding month, including all additional rent in effect during
the last month of the term of this Lease, which said monthly tenancy shall
commence with the first day next after the expiration of the term of this Lease.
Tenant, as a monthly tenant, shall be subject to all of the terms, conditions,
covenants and agreements of this Lease. Tenant shall give to Landlord at least
thirty (30) days written notice of any intention to quit the Premises, and
Tenant shall be entitled to thirty (30) days written notice to quit the
Premises, unless Tenant is in default hereunder, in which event, Tenant shall
not be entitled to any notice to quit, the usual thirty (30) days notice to quit
being hereby expressly waived. In the event that Tenant shall hold over after
the
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expiration of the possession of the Premises promptly at the expiration of the
term of this Lease, then at any time prior to Landlord's acceptance of rent from
Tenant as a monthly tenant hereunder, Landlord, at its option, may forthwith
re-enter and take possession of the Premises without process, or by any legal
process in force in the State of Pennsylvania.
20. INTEREST AND COLLECTION EXPENSES.
Interest shall accrue on any monies due from Tenant to Landlord from the
date the same are due (including rent and money advanced by Landlord to others
on account of the failure of Tenant to perform hereunder) at the rate of one
percent (1%) per month until the same is paid and Tenant shall pay the interest
upon demand. If Landlord consults any attorney for the collection of any sums
due from Tenant or otherwise in connection with Tenant's performance hereunder,
Tenant shall, whether or not proceedings are instituted, reimburse Landlord the
reasonable attorney fees and court costs, if any.
21. NON-DISTURBANCE.
21.1 Estoppel Certificate. Within ten (10) days after request therefore by
Landlord, or in the event that upon any sale, assignment, mortgage or
encumbrance of the Premises and/or the land thereunder by Landlord, an estoppel
certificate shall be required from Tenant; Tenant agrees to deliver in
recordable form a certificate to any proposed mortgagee or purchaser, or to
Landlord, certifying (if such be the case) that this Lease is in full force and
effect and that there are no defenses or offsets thereto, or stating those
claimed by Tenant.
21.2 Attornment. Tenant shall, at the request of any first mortgagee or
purchaser of the Premises attorn to such mortgagee or purchaser, provided Tenant
has been granted a non-disturbance agreement by the mortgagee.
21.3 Subordination. Tenant's rights, including without limitation any
option to purchase the Premises hereunder are subordinate to the lien of any
mortgage or mortgages, or the lien resulting from any other method of financing
or refinancing, now or hereafter in force against the land and/or buildings of
the Premises or any part thereof, and to all advances made or hereunder to be
made upon the security thereof, provided, however, and on the condition that
Tenant is granted in all such cases a non-disturbance agreement from any such
mortgagee or lienholder which recognizes Tenant and its rights under this Lease.
Regardless of the self operating provision of this Paragraph, if a prospective
mortgagee requests the Tenant to sign a subordination agreement, the Tenant
shall do so promptly subject to the terms set forth herein.
21.4 Limited Attorney-in-Fact. In the event Tenant fails to execute such
instruments or certificates to carry out the intent of Paragraphs 21.1, 21.2 and
21.3 referenced above within (a) fifteen (15) days of Landlord's first written
request to execute such instruments or certificates and (b) five (5) days after
Landlord's second written request to execute such instruments or certificates,
then Tenant hereby irrevocably appoints
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Landlord as Attorney-in-Fact for Tenant with full power and authority to execute
and deliver in the name of the Tenant any such instruments or certificates.
21.5 Submissions Requested by Landlord's Mortgagee. Tenant agrees to
promptly provide periodic financial statements, and such other financial
information as may be reasonably requested by any mortgagee of the Premises, no
more frequently than annually.
22. ADDITIONAL INSTRUMENTS.
Tenant shall, at the request of Landlord, execute such additional
instruments Landlord's mortgagee may request from time to time or as may be
required or convenient hereunder not inconsistent herewith. To the extent Tenant
signs a Memorandum of Lease, the recording of such Memorandum shall be at the
sole cost and expense of Landlord.
23. LANDLORD'S COVENANT OF TITLE AND QUIET ENJOYMENT.
Landlord covenants and warrants that upon the term of the Lease commencing,
it shall have full right and lawful authority to enter into this Lease for the
full Term hereof, and that Landlord will be lawfully seized of the entire
Premises and will have good title thereto and that at all times when Tenant is
not in default under the Terms and during the Term of this Lease, Tenant's quiet
and peaceable enjoyment of the Premises shall not be disturbed or interfered
with by anyone. Landlord, in person or by agent, shall be permitted to enter
upon the Premises at reasonable times to examine the same or to make such
repairs as are required hereunder with 24 hour telephonic notice and accompanied
by an employee of Tenant, unless in the case of an emergency.
24. WAIVER OF TRIAL BY JURY.
It is mutually agreed by and between Landlord and Tenant that the
respective parties hereto shall and they hereby do waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other on any matter whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, Tenant's use
of or occupancy of the Premises and/or any claim of injury or damage and any
emergency or any other statutory remedy. It is further mutually agreed that in
the event Landlord commences any summary proceeding for non-payment of rent,
Tenant will not interpose any counterclaim of whatever nature or description in
any such proceeding.
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25. LANDLORD RIGHT OF ENTRY.
Landlord shall have the right, during the last twelve (12) months of the
term herein provided, to place on any portion of the Premises signs or
xxxx-boards indicating that the Premises are "For Sale" or "For Rent," but such
signs shall be of such size and so placed as not to materially interfere with
Tenant's occupancy. During said period, interested persons shall be admitted at
reasonable business hours of the day to view the Premises.
26. CHANGE IN OWNERSHIP.
Tenant agrees that in the event that the Premises or any part thereof is
sold, or in the event of any change of legal title or equitable ownership, that
all obligations herein undertaken by Landlord, including but not limited to, the
obligation for the return of any advance rent payment paid hereunder, shall be
transferred to such purchaser or assignee, and in such event all of Landlord's
obligations shall terminate and Landlord shall be released and relieved from all
liability and responsibility to Tenant hereunder and Tenant shall look solely to
such purchaser or assignee for the performance of said obligations or for the
enforcement thereof Each purchaser or assignee shall in turn have like
privileges of sale, assignment and release.
27. SUCCESSORS AND ASSIGNS.
This Lease shall inure to the benefit of and shall bind the heirs,
successors and assigns of the parties to the extent that the parties' rights
hereunder may succeed and be assigned according to the terms hereof
28. DESCRIPTIVE HEADINGS.
The descriptive headings of the several paragraphs hereof are inserted for
convenience only and shall not control or affect the meaning or construction of
any of its provisions.
29. SERVICE OF NOTICE.
If at any time after the execution of this Lease it shall become necessary
or convenient for one of the parties hereto to serve any notice, demand or
communication upon the other party, such notice, demand or communication shall
be in writing signed by the parties serving the same, sent by United States
mail, or private carrier, to the respective addresses set forth in the preamble
of Part I, or at such other address as either party may have furnished to the
other in writing as a place for the service of notice. Any notice so mailed
shall be deemed to have been given as of the time it is deposited in the United
States mail, or if a private carrier is used, when the notice is accepted or
rejected by the addressee upon attempted delivery.
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30. CONSOLIDATION.
This Part II and the accompanying Part I constitute one agreement and may
be signed in any number of counter parts and shall be construed under the laws
of the Commonwealth of Pennsylvania. Unless specifically set forth to the
contrary in this Part II, all section cross references shall be deemed to refer
to sections within this Part II.
31. RADON ABATEMENT.
Landlord acknowledges and agrees that as a result of radon testing
conducted at the Premises by U.S. Toxic Substance Testing Bureau, radon in
concentrations greater than the EPA 4.0 pCi/L guidelines was detected within the
Buildings. Landlord hereby agrees at its sole cost and expense, to take all
actions necessary to bring the Buildings within compliance with EPA radon
guidelines on or before April 1, 1997.
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IN WITNESS WHEREOF, intending to be legally bound, the Landlord and Tenant
have caused this Part II presents to be signed by their duly authorized officers
or agents and their appropriate seals to be hereunto affixed, the day and year
first above written.
WITNESS: DONNERVILLE ASSOCIATES, "Landlord"
By: /s/ [ILLEGIBLE]
-------------------------------
Name: /s/ [ILLEGIBLE]
-------------------------------
Title: General Partner
/s/ [ILLEGIBLE]
____________________ By:
------------------------------
Name:
------------------------------
Title: General Partner
____________________ By:
-------------------------------
Name:
-------------------------------
Title: General Partner
WITNESS/ATTEST: GEOSYSTEMS GLOBAL CORPORATION
"Tenant"
/s/ [ILLEGIBLE]
____________________ By: /s/ XXXXX X. XXXXX
-------------------------------
Name: Xxxxx X. Xxxxx
-------------------------------
Title: PRESIDENT & CEO
RIDER
PURCHASE OPTION
Option to Purchase
Tenant shall have the option to purchase the Premises, located at 0000-0000
Xxxxxxxxxxx Xxx, Xxxxxxxxx, Xxxxxxxxxxxx, so long as Tenant is not in default of
this Lease, on terms as follows:
A. This purchase option may be exercised during the 7th, 8th, 9th or 10th year
of the Lease term by Tenant giving not less than four (4) months prior written
notice to Landlord provided, however, if the exercise is made in the 10th year
of the Lease term it shall be made prior to July 1, 2006. The notice of exercise
shall specify a proposed settlement date accompanied by a down payment of
$100,000. The down payment will be placed in an interest bearing escrow account
and at the Closing the interest shall be payable to Buyer. At the settlement,
upon payment of the balance of the purchase price, Landlord shall execute,
acknowledge and deliver to Tenant a special warranty deed with good and
insurable title.
The cost of the preparation of the deed shall be borne by Tenant. Special
assessments not otherwise payable by Tenant pursuant to the terms of the Lease
shall be apportioned to the date of closing and thereafter paid by Tenant.
Transfer taxes and documentary stamps, if any, to be borne by Tenant. Pending
settlement, the rent shall continue without abatement.
A-l Tenant's notice to Landlord that it intends to exercise this option may
include, at Tenant's option, the proposed purchase price, which Landlord shall
either accept or reject, by issuance of written notice to Tenant within fifteen
(15) days of receipt of Tenant's notice. If Landlord rejects the purchase price,
the appraisal provisions of Paragraph B below shall apply, however, if the
appraisal process outlined in Paragraph B results in a purchase price which is
equal to or less than the purchase price initially offered by Tenant, the cost
of the appraisal(s) shall be paid by Landlord.
B. If Landlord rejects Tenant's proposed purchase price or if Tenant's notice of
exercise does not include a proposed purchase price, the purchase price shall be
the greater of $4,000,000 or Fair Market Value determined as follows:
The Tenant and Landlord shall each select a Pennsylvania State Certified
appraiser, experienced in the valuation of real estate in the vicinity of the
Premises within ten (10) days of the exercise of the Option to Purchase. The
Appraisers shall appraise the Premises within thirty (30) days of their
appointment. If the two appraisals are within ten percent (10%) of one another,
fair market value shall be the average of the two. If the two appraisals are not
within ten percent (10%) of one another, then the two Appraisers shall select a
third Appraiser to appraise the Option Property within thirty (30) days of its
appointment. If the valuation of the third Appraiser is between the value of the
first two Appraisers, then the determination of the third Appraiser shall be the
Fair Market Value. If
the third Appraiser's valuation is higher than the higher of the original two or
lower than the lowest of the original two appraisals, then the valuation of the
original two which is closest to the third appraisal shall be Fair Market Value.
Subject to the terms of Paragraph A-1, the Tenant shall be responsible for
the costs associated with obtaining all appraisals. Landlord agrees to
reasonably cooperate with Tenant to obtain said appraisals as quickly as
possible.
C. Settlement of Purchase of Premises Under Option
(a) Once the purchase price is determined, Landlord shall either accept
Tenant's proposed settlement date set forth in its original notice or the
parties will mutually agree upon a date for settlement, or absent agreement,
settlement will take place on the later to occur of one hundred eighty (180)
days following the determination of the purchase price or the anniversary date
of the Lease commencement; settlement will be held in York, Pennsylvania, unless
the parties mutually agree in writing upon another place.
(b) Pending the settlement, the Lease will continue in full force and
effect.
(c) In the event that Tenant obtains or procures a report of title or title
insurance binder and such report of title or title insurance binder discloses
any defects in title (other than such usual exceptions contained in owner's
policies and the matter to which the sale hereunder is to be subject by the
terms hereof), Landlord shall have a period of ninety (90) days from the date of
written notice by Tenant of such defects and receipt of a copy of such title
insurance binder within which to cure such defects without being in default
hereunder. If Landlord is unable to cure such defects within such time period,
Tenant may, by issuance of written notice to Landlord, (i) terminate its
exercise of the option or (ii) waive the defect and proceed to closing.
(d) Immediately upon the exercise of the option, endorsements shall be
placed upon all policies of insurance which then insure Landlord's interest, so
as to cover the interest of Tenant as a contract purchaser. Any expense in
connection therewith shall be paid by Tenant. Risk of loss pending settlement
shall be on the Landlord.
(e) Prior to or simultaneously with the payment of the purchase price,
Landlord agrees to pay in full and discharge any mortgage indebtedness or other
monetary Liens encumbering the property. Once the purchase price is agreed upon
following Tenant's exercise of the Option, Landlord will not encumber the
Premises without first obtaining the written consent of Tenant.
(f) Possession shall be delivered to Tenant at settlement. At the
settlement, Tenant shall pay in full to Landlord all amounts due to landlord
under the Lease as of the date of settlement, the Rent prorated to the date of
settlement and the Lease shall be terminated.
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Lease as of the date of settlement, the Rent prorated to the date of settlement
and the Lease shall be terminated.
(g) The last month's rent, prepared by Tenant shall be credited against
rental otherwise due in the last month (or months) preceding the settlement.
WITNESS: DONNERVILLE ASSOCIATES, "Landlord"
By: /s/ [ILLEGIBLE]
-------------------------------
Name: /s/ [ILLEGIBLE]
-------------------------------
Title: General Partner
/s/ [ILLEGIBLE]
____________________ By:
------------------------------
Name:
------------------------------
Title: General Partner
____________________ By:
-------------------------------
Name:
-------------------------------
Title: PRESIDENT & CEO
WITNESS/ATTEST: GEOSYSTEMS GLOBAL CORPORATION
"Tenant"
/s/ [ILLEGIBLE]
____________________ By: /s/ XXXXX X. XXXXX
-------------------------------
Name: Xxxxx X. Xxxxx
-------------------------------
Title: General Partner
EXHIBIT A
All property commonly known as 3 700-3750 Electronics Way, Township of West
Hempfield, County of Xxxxxxxxx, Xxxxxxxxxxxx, 00000
[MAP DESCRIBING LEASE AREA]
EXHIBIT B
Items to be Completed at Landlord's Expense
("Landlord Work")
1. Landlord will paint all corridors in those areas where Tenant Improvements
are not being made. Otherwise, Landlord will only patch the walls and touch
up the paint on walls that exhibit mold, stains or need repair. Landlord
will replace stained or damaged ceiling tiles in all areas. All this work
will be completed prior to April 1, 1997 ("Occupancy").
2. Landlord will hire a contractor to clean the HVAC duct work and replace the
filters once prior to Occupancy. Certification of the cleaning will be
provided to Tenant upon completion of the work.
3. Landlord will hire a contractor to exterminate and fumigate the entire
building once prior to Occupancy. Certification of the extermination and
fumigation will be provided to the Tenant upon completion of the work.
4. Landlord will change the hardware on all four main entrance/exit doors to
be special light weight (12# or so) ball bearing hinges that make opening
the doors easier for physically-challenged persons. This is the only ADA
requested change the Landlord will complete prior to Occupancy: any other
changes will be made either through the agreed upon Tenant allowance as
outlined below, or at Tenant's cost.
5. Landlord agrees to make repairs and maintenance/service items that are
mutually determined to be reasonably required as a result of the
electrical, plumbing, HVAC, appliances, fire extinguisher, halon, and
sprinkler system inspections performed in October and November, 1996, prior
to Occupancy so that all such systems are in working order and condition as
of Occupancy. Landlord agrees to replace the existing roof
6. Landlord agrees to clean the building once, including dry-cleaning drapes
prior to Tenant occupying 50% of the building; Tenant must assume
responsibility from then on.
7. Landlord agrees to repair and seal the macadam parking lots, repaint lines
and repair and/or erect existing exterior light poles. Landlord also agrees
to add handicapped parking space stencils on the macadam when re-striping
the lines. There is no need to re-stencil numbers on the parking spaces.
Tenant agrees to provide handicapped signage at appropriate parking spaces.
This work will be done once prior to Occupancy, weather permitting, and in
no event later than June 15, 1997.
8. Landlord agrees to complete weeding, mulching, or landscaping work
(including removal of existing plant material) as much as possible before
Tenant Occupancy,
