LEASE AGREEMENT
THIS AGREEMENT OF LEASE ("Lease"), made as of the _____ day of ______,
1998, by and between Bryn Mawr Mall Associates, a Pennsylvania limited
partnership ("Landlord")
A N D
Fidelity Leasing, Inc. ("Tenant").
Tenant and Landlord, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged and intending to be legally bound hereby, agree as follows:
1. Lease and Premises.
A. Subject to the provisions of this Lease, Landlord hereby
demises and leases to Tenant and Tenant hereby leases from Landlord that certain
property consisting of a minimum of 20,000 rentable square feet (as measured
consistent with BOMA standards) in Building II, Commons at Brandywine, Airport
Road and Wrights Lane, West Goshen Township, Xxxxxxx County, Pennsylvania, as
more fully described or shown on Exhibit "A," attached hereto and incorporated
herein by reference, and further subject to the final space plan (the "Space
Plan") to be prepared by Tenant and approved by Landlord (the "Premises").
B. The Premises shall be occupied and used for office purposes
only and in accordance with all applicable laws, ordinances and regulations.
C. Landlord shall provide a "turnkey" project, with the Tenant
improvements to be performed by the Landlord in accordance with Tenant's space
plan to be attached hereto and incorporated herein by reference as Exhibit "B".
Specifications shall be building standard, as determined by Landlord (cost not
to exceed $20.00 per r.s.f.), unless otherwise noted on the Space Plan. Landlord
shall use best efforts to construct and complete the 20,000 square foot section
shown on the Space Plan prior to the "Lease Commencement Date" (as hereinafter
defined). In the event the Tenant improvements do not utilize the entire $20.00
per r.s.f. figures set forth above, Tenant may utilize any unused portion
thereof for telephone and computer cabling purposes.
2. Term.
A. The term of this Lease shall be for six (6) years and two
(2) months, commencing November 1, 1998 (the "Lease Commencement Date"). Subject
to the provisions of paragraph 28, the term of this Lease shall expire, without
the necessity of any notice from either party to the other, on December 31,
2004, provided, however, that Landlord shall give written notice of the
impending expiration of the Lease not more than twelve (12) months and not less
than ten (10) months prior to its expiration. Tenant shall, at the request of
Landlord, execute a "Lease Commencement Memorandum", setting forth the Lease
Commencement Date
and such other provisions as reasonably required by Landlord and/or Landlord's
lender(s).
B. If Tenant remains in possession of the Premises after the
expiration of the term of this Lease without the written consent of Landlord,
such holding over shall, if rent is accepted by Landlord for any period after
the expiration of the term, create a tenancy from month to month with respect to
the Premises on all of the same terms and conditions as are in effect on the
last day of the preceding term, except that the monthly minimum rental shall be
increased to an amount equal to one and one-half times the minimum monthly
rental effective on the last day of the preceding term.
3. Base Minimum Rent.
A. The base minimum rent payable by Tenant to Landlord during
the six (6) year, two (2) month term shall be payable in monthly installments in
lawful money of the United States of America, in advance on or before the first
day of each month, with such base minimum rent payments to begin on the first
day of the third month following the Lease Commencement Date (with Tenant
enjoying free minimum monthly rent for the first two (2) full months following
the Lease Commencement Date) and to continue thereafter as follows:
Rent Minimum Minimum
Per Annual Monthly
Year Square Foot Rent Rent
---- ----------- ------- -------
1. 1/1/99 - 12/31/99 $17.50 $350,000.00 $29,166.67
2. 1/1/00 - 12/31/00 $18.00 360,000.00 30,000.00
3. 1/1/01 - 12/31/01 $18.50 370,000.00 30,833.33
4. 1/1/02 - 12/31/02 $19.00 380,000.00 31,166.67
5. 1/1/03 - 12/31/03 $19.50 390,000.00 32,500.00
6. 1/1/04 - 12/31/04 $20.00 400,000.00 33,333.33
In the event that the actual square footage, calculated
with reference to paragraph 1A, above, is greater than or less than 20,000
rentable square feet, the minimum annual rent and minimum monthly rent figures
set forth above shall be adjusted by multiplying the actual rentable square feet
by the rent per square foot figures set forth above. Such adjustment shall be
set forth in the Lease Commencement Memorandum referenced in paragraph 2A,
above.
B. In the event Landlord completes the Tenant improvements
(referenced in paragraph 1(C), above) prior to the Lease Commencement Date,
Tenant shall pay minimum monthly rent, prorated, based upon the number of days
such work is completed prior to the Lease Commencement Date. Conversely, in the
event such work is not completed until following the Lease Commencement Date,
Tenant's base minimum rent payment obligation shall xxxxx for a
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like number of days as of December 1, 1998. In the event Tenant accesses the
Premises (or any other person or entity accesses the Premises with the express
or implicit consent of Tenant), all terms, conditions and provisions of this
Lease shall be in full force and effect, excepting only Tenant's obligation to
pay base minimum rent, which is addressed above. Tenant may terminate this Lease
and have all deposits and rents returned to it if the Tenant improvements
referenced in paragraph 1C are not completed within ninety (90) days from the
date of execution of this Lease, unless Landlord's inability to complete such
improvements is due to force majeure (which shall include, but shall not be
limited to, unavailability of building materials).
4. Additional Rent.
As additional rent hereunder, Tenant shall pay (either
directly to the third party provider or to Landlord, as hereinafter set forth)
the following at or before the times such payments are due, but in no event
later than ten (10) days following rendition by Landlord of a xxxx therefor (if
applicable):
A. All charges for electrical service, use and consumption
relating to the Premises, which shall be separately metered at Landlord's
expense.
B. Commencing January 1, 2000, Tenant shall pay to Landlord,
in monthly installments due and payable with the base minimum rental payments
hereunder, "Tenant's Proportionate Share" (as hereinafter defined) of the
"Operating Expenses" in excess of (or over) the "Base Year Operating Expenses"
(as both terms are hereafter defined), in accordance with the following:
(i) "Tenant's Proportionate Share" shall mean 48.3%
(20,000 square feet divided by 41,397 square feet). Provided, however, that the
"Tenant's Proportionate Share" number shall be recalculated in the event the
rentable square footage figure is revised due to the BOMA measurements
referenced in paragraph 1A, above.
(ii) "Operating Expenses" shall mean all costs and
expenses incurred by Landlord in connection with the ownership, operation and
management of the property of which the Premises is a part (the "Property"),
excluding only the Landlord's financing/debt service, ground rents, leasing
commissions and all federal, state and local income taxes levied upon Landlord's
income generally. Operating Expenses shall include, but shall not be limited to,
all taxes, assessments and charges of whatsoever nature levied upon or with
respect to the Property (except as set forth above); all premiums insuring the
Property from and against loss or damage by fire, vandalism and other casualty
which Landlord desires to insure against, as well as coverage insuring Landlord
against liability for bodily injury (including death) and property damage and
such other coverage as determined or required by Landlord and/or Landlord's
mortgagee; all costs and expenses of management (including management fees - and
the current management fee percentage (4%) shall not be increased in calculating
"Operating Expenses"), legal and accounting expenses (but excluding legal and
accounting expenses
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incurred in connection with an individual tenant or any matter involving fewer
than all tenants of the building of which the Premises is a part), maintenance,
repair and replacement with respect to the Property and all buildings and
improvements thereon, whether structural, non-structural or otherwise (but
excluding foundation, load-bearing walls, roof and, with respect to replacement
matters, plumbing and HVAC systems), and all snow removal, maintenance, repair,
replacement of pavement, parking, landscaping (including grass-cutting and
shrubbery trimming), all utilities and services which are not separately metered
for each tenant, and all other costs and expenses of maintenance, repair and
replacement affecting or relating to the Property. In the event an individual
component of "Operating Expenses" is for a capital expenditure with a useful
life of greater than one (1) year, Landlord shall amortize such component over
its useful life and the amortized portion thereof shall be included in
"Operating Expenses" (e.g., capital expenditure of $30,000.00, for an item with
a 10 year useful life, then $3,000.00 ($30,000.00 divided by 10) would be
included in "Operating Expenses" for that given year).
This paragraph shall apply to all years of the Lease including any extensions
pursuant to options or otherwise.
(iii) "Base Year Operating Expenses" shall mean the
Operating Expenses for calendar year 1999, grossed up with respect to non-fixed
operating expense components to reflect a 95 percent occupancy for the full
year.
(iv) On or about January 1, 2000, Landlord shall
advise Tenant of the Base Year Operating Expense figure and shall also provide
Tenant with: (a) an estimate of the Operating Expense figure for calendar year
2000 and (b) the monthly payment required of Tenant for calendar year 2000 to
satisfy Tenant's Proportionate Share of Operating Expenses over Base Year
Operating Expenses for the year 2000. Tenant shall thereafter pay (with the
monthly installments of base minimum rent) the monthly payment referenced above.
The foregoing procedure and calculation shall likewise be implemented on or
about January 1, 2001, January 1, 2002, January 1, 2003, and January 1, 2004,
and Tenant's monthly payment obligations for each such year shall be adjusted
accordingly as a result of such calculation.
(v) Within sixty (60) days of the end of each calendar
year, Landlord shall provide Tenant with a statement of actual Operating
Expenses for the calendar year just ended and a calculation of the precise
figure for Tenant's Proportionate Share of Operating Expenses for such year just
then ended. In the event Tenant's payments actually made during the preceding
calendar year are less than Tenant's actual obligations as calculated by
Landlord in accordance with the above, Tenant shall, within ten (10) days of
demand from Landlord, pay to Landlord the difference between the actual
calculated obligations and the amounts actually paid for such year just then
ended. In the event of a Tenant overpayment, Tenant shall receive a credit
against the next required payment obligation(s) of Tenant with respect to
Tenant's Proportionate Share of Operating Expenses.
(vi) All calculations and determinations referenced
above shall
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be made by Landlord in Landlord's reasonable business determination. Provided,
however, that at the reasonable request of Tenant Landlord shall provide Tenant
with photocopies of tax bills, insurance invoices and other documentation
reasonably requested by Tenant to verify Operating Expense figures.
C. All sums which may become due by reason of the failure of
Tenant to comply with any of the terms, covenants and conditions of this Lease,
to be kept and observed by Tenant, and any and all damages, costs and expenses
(including, without limitation thereto, attorneys' fees) which Landlord may
suffer or incur by reason of any such failure, failures, default or defaults of
Tenant, together with interest at a rate equal to two (2) percentage points
above the Wall Street Journal announced prime interest rate in effect at the
time of payment.
D. All charges for janitorial services to the Premises, which
Tenant shall pay directly to Landlord upon presentation of invoices therefor.
5. Utilities.
Under no circumstances shall Landlord be required to furnish
or be responsible for the furnishing of utilities or the failure of any utility
companies, public authorities or others to furnish any utilities or any other
service of any kind to the Premises or any part thereof.
6. Maintenance, Repairs and Replacements.
A. Following Landlord's completion of the Tenant improvements
referenced in paragraph 1C, above, Tenant shall be responsible for all
maintenance, repairs and non-structural (with structural being defined as
foundation, load-bearing walls, plumbing, HVAC systems and roof) replacements to
or for the benefit of the Premises which are not otherwise included in
"Operating Expenses" and, at Tenant's sole expense, shall make all maintenance,
repairs and non-structural (defined as above) replacements, ordinary and
extraordinary, foreseen and unforeseen, required to keep and maintain the
Premises and all systems, equipment and apparatus appurtenant thereto or used in
connection therewith in good order and condition, as determined by Landlord. At
the end of the Lease term, Tenant shall surrender the Premises to Landlord in
the same condition existing following completion of the Tenant improvements,
subject to any subsequent improvements or alterations approved by Landlord
(unless in connection with such approval Landlord requires that such
improvements or alterations be removed at the end of the Lease term) and further
subject to ordinary wear and tear.
B. Any repairs, maintenance and replacements and any labor
performed or materials furnished in, on or about the Premises shall be performed
and furnished by Tenant in strict compliance with all applicable laws,
regulations, ordinances and all requirements of all duly constituted municipal
authorities or other governmental bodies having jurisdiction over the Premises,
the requirements of any board of underwriters having jurisdiction thereof and
shall be performed in a quality manner
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C. Landlord or Landlord's management company may procure a
service contract for the entire building of which the Premises is a part (for
items such as the plumbing and HVAC components), and Tenant shall not be
required to directly enter into a service contract with a service contractor.
The costs of any such service contract obtained by Landlord (or Landlord's
management company) for the building of which the Premises is a part shall be,
notwithstanding paragraph 4B (ii), an "Operating Expense". In the event
Landlord's (or its management company's) service contract covers additional
buildings, the expense of such contract allocable to the building of which the
Premises is a part shall constitute an "Operating Expense".
7. Insurance.
A. Tenant shall provide and keep in force with an insurance
company having an A rating public liability insurance that might be required to
protect the Landlord and Tenant against any and all liability with minimum
limits of coverage with respect to bodily injury (including death) and property
damage in the amount of not less than two million dollars ($2,000,000.00), which
amount of coverage shall be reviewed periodically and increased periodically at
the request of Landlord. All premiums and charges for any of the aforesaid
policies shall be paid by Tenant.
B. Prior to the earlier of: (i) Tenant entering upon the
Premises, and (ii) the Lease Commencement Date, Tenant shall provide Landlord
with a certificate or certificates of the insurers with whom all insurance
herein is in force and effect. All policies of insurance and such certificates
shall have a clause to the effect that the Landlord shall be notified at least
thirty (30) days prior to any change in or cancellation of said policies of
insurance. At least thirty (30) days prior to the expiration of any such policy,
Tenant shall furnish Landlord with evidence satisfactory to Landlord that the
policy has been renewed or replaced.
C. Notwithstanding anything contained herein to the contrary,
Tenant shall be fully responsible for any increase in Landlord's insurance
premiums, if such increase is caused by any act or neglect of Tenant (and those
acting under or at the request of Tenant including, but not limited to, Tenant's
officers, directors, shareholders, employees, contractors and business
invitees), or if such increase is due to the nature of Tenant's business.
8. Destruction of Premises.
A. Total Destruction of Premises. If the Premises are, without
fault of Tenant, totally destroyed or so damaged by fire or other casualty that,
in Landlord's opinion, the same cannot be repaired and restored within ninety
(90) days from the happening of such occurrence, this Lease shall absolutely
cease and determine and the rent shall xxxxx for the balance of the term.
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B. Partial Destruction of Premises. If the damage be less than
total and such that the Premises can be restored, in Landlord's opinion, to
approximately its former condition within ninety (90) days from the date of the
casualty loss, Landlord will use reasonable efforts to restore the same with
reasonable promptness. Rent shall be abated to the extent that Tenant is not
reasonably able to conduct its business upon the Premises. In the event of a
partial destruction during the last twelve (12) months of the Lease term,
Landlord may, in the event Landlord makes an economic determination that the
same would be prudent, elect not to will use its efforts to restore the
Premises, in which event this Lease shall absolutely cease and determine and the
rent shall xxxxx for the balance of the term.
C. Non-Liability. Landlord shall not be liable for any damage,
compensation or claim by reason of the necessity of repairing any portion of the
Premises, the interruption of the use of the Premises, any inconvenience or
annoyance arising as a result of such repairs or interruption or the termination
of this Lease by reason of damage or destruction of the Premises or any part
thereof. Provided, however, that Landlord covenants that Landlord shall,
promptly upon becoming aware of the need for the same, commence and prosecute
with diligence toward completion, any repairs for which Landlord has
responsibility hereunder. Tenant further acknowledges that Landlord shall have
no obligation to rebuild if Landlord's mortgagee does not make insurance
proceeds available to Landlord in an amount to enable Landlord to rebuild (and,
in the event Landlord does not rebuild, the Lease shall terminate as set forth
in paragraph 8(A), above).
9. Condemnation.
A. Total Condemnation. In the event the entire Premises is
taken or condemned by any public or quasi-public authority exercising the right
of eminent domain, this Lease shall terminate as of the date the condemning
authority takes possession of the Premises, with the same force and effect as
though such date were the date fixed herein for expiration of the Lease term.
The entire amount of any award for such taking shall belong to the Landlord, and
Tenant hereby waives any other right it may have to any portion of such award.
Notwithstanding the foregoing, Tenant may make a separate, independent
condemnation claim for its relocation expenses and any other claim which does
not in any manner interfere with or diminish Landlord's claim.
B. Partial Condemnation. In the event that a portion of the
Premises, but less than the entire Premises, is taken or condemned for a public
or quasi-public use, the minimum annual rental herein shall xxxxx equitably in
proportion to the area of the building on the Premises condemned as of the date
on which the condemning authority shall take possession of the condemned
property. Provided, however, that in the event the condemnation results in a
taking of more than 10% of Tenant's square footage, Tenant may, in the event
Tenant reasonably determines that Tenant's operations are materially and
adversely affected, effectuate a termination as if such condemnation were a
total condemnation pursuant to paragraph 9(A), above.
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10. Use and Compliance with Regulations.
Tenant hereby covenants and agrees that it will at no time use
the Premises for any other use or purpose than lawful purposes and shall further
only use the Premises for the uses set forth herein. Further, Tenant further
agrees that it will not at any time use the Premises in any manner which is in
violation of any municipal (including, but not limited to, township authorities,
regulatory agencies and water and sewer authorities), state or federal law,
rules, regulations or requirements. Tenant shall comply at its sole cost and
expense with any and all municipal, state and federal rules, regulations,
requirements or laws of any and every nature relating to the Premises and/or
Tenant's occupancy and/or additional installations or improvements which may be
required. Tenant shall, if required, obtain a certificate of occupancy for the
Premises. Tenant hereby agrees to protect, indemnify and save Landlord harmless
from and against any and all loss, damage, cost, expense (including attorneys'
fees), causes of action, suits, demands, judgments and claims of any nature
whatsoever arising as a result of Tenant's breach of the covenants contained in
this paragraph, in addition to any other indemnification provisions set forth in
this Lease. Tenant agrees that only sanitary waste shall be inserted into the
sanitary sewer system. Tenant shall not maintain or permit any "hazardous
materials" (as such term is defined by federal and/or state law), on or about
the Premises, except in accordance with all applicable laws and regulations, and
shall be solely responsible for compliance with RCRA, CERCLA, PAHSCA and all
other environmental laws, rules and regulations (federal, state and local) in
any manner relating to its use and occupancy of the Premises.
11. Indemnification.
Tenant shall keep, save and hold harmless Landlord from and
against any and all damages, liability, losses, costs and expenses (including
attorneys' fees) for anything and everything whatsoever arising from or out of
the occupancy and/or use of the Premises by or under Tenant, Tenant's agents,
servants, employees, contractors and/or business visitors, and from any loss or
damage arising from any failure on Tenant's part to comply with any of the
covenants, terms and conditions contained in this Lease. The indemnity
obligations of Tenant herein and elsewhere in this Lease together with all
accrued but unsatisfied obligations of Tenant herein shall survive the
termination of this Lease.
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12. Mechanics' Liens.
Tenant shall not permit any mechanics', materialmen's or
similar liens to be placed upon or remain upon the Premises for labor or
material furnished to, for or on behalf of Tenant or claimed to have been
furnished to, for or on behalf of Tenant in connection with work of any
character performed or claimed to have been performed on the Premises by or with
the consent of Tenant. Tenant may, however, contest the validity of any such
lien or claim, provided Tenant shall provide Landlord security satisfactory to
Landlord to ensure payment and to prevent any sale, foreclosure or forfeiture of
the Premises by reason of such non-payment. Upon final determination of the
validity of any such lien or claim, Tenant shall immediately pay any judgment or
decree rendered against Tenant, Landlord or the property of which the Premises
is a part, with all proper costs and charges and shall cause such lien to be
released of record without cost to Landlord. Prior to the commencement of any
work by or at the direction of Tenant, Tenant shall cause to be filed all
necessary mechanics' lien waivers to prevent the filing of a mechanics' lien
claim and shall provide Landlord and Landlord's counsel with a time-stamped copy
of such filed documents.
13. Subordination.
This Lease shall be subordinate in all respects to the lien of
any mortgage now or hereafter encumbering the Premises or any part thereof, with
the same force and effect as if such mortgage had been executed, acknowledged,
delivered and recorded prior to the execution of this Lease. The subordination
provisions contained in this Article are and shall be effective without the
necessity of any further act or writing by either party hereto, but Tenant
agrees that it will, within five (5) days of Landlord's request, deliver such
additional documents as any mortgagee may require to confirm such subordination.
Tenant shall, at the request of any mortgagee or anyone acquiring title to
Landlord's estate or the Premises by foreclosure, deed in lieu of foreclosure or
otherwise, attorn to the then owner and recognize such owner as Landlord for the
balance of the term of this Lease, subject to all of the terms and provisions
hereof. This Lease and Tenant's tenancy hereunder shall further be subject to
such easements and licenses now in existence or which may hereafter be created
or granted. Notwithstanding the foregoing, in the event Landlord (or any
mortgagee of Landlord) elects, Landlord (or such mortgagee or mortgages) may
subordinate one or more mortgages to this Lease. Landlord shall use best
business efforts to obtain from all mortgagees with an interest in the property
of which the Premises is a part a reasonable non-disturbance agreement (or
non-disturbance provisions in a subordination, non-disturbance and attornment
document).
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14. Estoppel Certificate.
Tenant agrees to execute and deliver to any mortgagee or
purchaser of the Premises within five (5) days of request an "Estoppel
Certificate", stating the amount of rent due from Tenant hereunder, that this
Lease remains in full force and effect without modification, that Tenant has no
setoffs against rent (or if this Lease has been modified, or if Tenant believes
Landlord is in breach hereunder, the exact nature of the modification or breach
and the precise reasons therefor), together with such other reasonable
representations and items requested by such mortgagee or purchaser.
15. Assignment and Subletting.
Tenant may not assign or sublet this Lease or the Premises in
whole or in part without the prior written consent of Landlord, which Landlord
will not unreasonably withhold or delay provided that all of the following
conditions are satisfied:
(i) The proposed assignee meets Landlord's
then-current standards (a proposed sublessee need not meet such standards);
(ii) Tenant remains jointly and severally liable with
such assignee or sublessee;
(iii) The assignment, subletting and other
transactions be documented in a manner acceptable to Landlord and Landlord's
counsel, with Tenant responsible for the legal fees incurred in connection
therewith.
16. Waiver of Subrogation.
Landlord and Tenant hereby agree that all insurance policies
which each of them shall carry to insure the Premises and all contents therein
against casualty and other loss, and all liability policies which they shall
carry pertaining to the use, occupancy of and operations at the Premises shall
contain mutually acceptable waivers of the right of subrogation against Landlord
and Tenant herein, their heirs, administrators, successors and assigns and each
shall provide the other with evidence of compliance with the provisions of this
paragraph prior to the Lease Commencement Date.
17. First Month's Rent and Security Deposit.
Tenant shall deposit with Landlord upon execution hereof, the
sum of Twenty Nine Thousand One Hundred Sixty Six Dollars and Sixty Seven Cents
($29,166.67), representing the first month's rent and the further sum of Fifty
Eight Thousand Three Hundred Thirty Three Dollars and Thirty Four Cents
($58,333.34), representing a one (1) month security deposit and an additional
month's rent (which shall be applied toward the last month's rent
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hereunder, provided that the same has not been utilized as a result of a prior
uncured default of Tenant). If Tenant fails to pay rent or any other charges due
hereunder, or otherwise defaults with respect to any provision of this Lease,
Landlord may use, apply or retain all or any portion of the sums held hereunder
for the payment of any rent or other charge in default or for the payment of
other sums to which Landlord may become obligated by reason of Tenant's default,
or to compensate Landlord for any loss or damage which Landlord may suffer
thereby. If Landlord uses or applies all or any part of such sums (and the Lease
has not been terminated), Tenant shall immediately deposit cash with Landlord in
an amount sufficient to restore the full amount hereinabove stated and Tenant's
failure to do so shall be a material breach of this Lease. If Tenant performs
all of Tenant's obligations hereunder, the sums hereunder that have not
theretofore been applied by Landlord shall be returned to Tenant within thirty
(30) days of the termination of the Lease, provided that Tenant has provided
Landlord with a forwarding address.
18. Inspection - Access.
Landlord may, at all reasonable times, by itself or its duly authorized agents,
go upon and inspect the Premises and every part thereof and/or at its option to
make repairs, alterations and replacements to the Premises or any part thereof
(provided, however, that the foregoing right shall not relieve Tenant of or from
any of its duties hereunder). Provided, however, that Landlord agrees that it
will not enter upon the Premises except during business hours, without the
consent of Tenant, unless required by an emergency condition.
19. Rights of Assignees.
All rights granted to Landlord hereunder may be exercised by
any assignee of Landlord's right, title and interest in this Lease in his, her
or their name, any statute, rule of court, custom or practice to the contrary
notwithstanding. In addition, upon such assignment, Landlord may pay over any
security deposit and any other sums held by Landlord hereunder to such assignee
and, upon such payment, all obligations of Landlord to Tenant pertaining to such
sums shall terminate. In addition, upon assignment of Landlord's interest herein
to an assignee, all obligations of Landlord shall cease and terminate and the
assignee alone shall be responsible therefor to Tenant.
20. Restrictions on Floor and Wall Loads.
Tenant shall not place a load on any floor or wall of the
building upon the Premises which is greater than the floor load per square foot
or wall load per square foot which such floor or wall was designed to bear
and/or which is permitted by law.
21. Signs.
Tenant shall be permitted to place its name on the entrance
door to the Premises with Landlord's prior written approval of Tenant's
proposal. Landlord represents that monument
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signage will be available for the tenants of the building in which the Premises
is located. Tenant shall be permitted 36.2% of all available signage on any such
monument. Tenant shall, at Tenant's request, be the first tenant listed on such
signage. Attached hereto as Exhibit "C" is ' 84-52 of West Goshen Township
captioned "Sign Regulations", which (at Table 1) indicates that one (1) fifty
(50) foot sign is permitted for the Property, subject to the other provisions of
' 84-52 including, but not limited to, the bonus signage provisions of ' 84 -
52(S). Landlord and the Manager of the Brandywine Business Park shall, however,
have aesthetic approval rights with regard to all such signage, which shall be
installed at Tenant's sole cost and expense.
22. Quiet Enjoyment.
Upon payment by Tenant of all minimum annual rent and
additional rent hereunder, as well as the satisfaction and performance by Tenant
of all terms, conditions, covenants and provisions hereunder on the part to be
observed and performed by Tenant, Tenant shall peaceably and quietly hold and
enjoy the Premises for the term hereof without hindrance or interruption by
Landlord, subject, nevertheless, to the terms, conditions, covenants and
provisions of this Lease. As set forth in paragraph 13, above, Landlord shall
use best business efforts to obtain non-disturbance provisions from existing and
future mortgagees.
23. Events of Default - Remedies.
A. Specifically subject to paragraph L, below, the following
events or any one or more of them shall be events of default under this Lease:
(i) Tenant shall fail to pay any minimum annual rental,
additional rent or other sums payable hereunder when the same are due and
payable; or
(ii) Tenant shall fail to perform or comply with any of the
other terms, covenants, agreements or conditions hereof; or
(iii) Tenant shall make a general assignment for the
benefit of creditors or shall admit in writing its inability to pay its debts as
they become due, or shall file a petition in bankruptcy or shall be adjudged a
bankrupt or insolvent, or shall file a petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future statute, law or regulation, or shall file an
answer admitting or not contesting the material allegations of a petition
against it in any such proceeding, or shall seek or consent to or acquiesce in
the appointment of any trustee, receiver or liquidator of Tenant or any material
part of its property; or
(iv) If within thirty (30) days after commencement of any
proceedings against Tenant seeking any reorganization, arrangement, composition,
readjustment, liquidation or dissolution or similar relief under any present or
future statute, law or regulation, such proceedings shall not have been
dismissed or if, within thirty (30) days after the appointment without the
consent or acquiescence of Tenant of any trustee,
12
receiver or liquidator of Tenant or any material part of its properties, such
appointment shall not have been vacated.
B. In the event of any such event of default, Landlord at any
time thereafter may exercise any one or more of the following remedies:
(i) Exclusion. Landlord may (but only in the event of
Tenant's vacation of the Premises) change the locks on the Premises and/or any
buildings upon the Premises and exclude Tenant, its servants, employees and
others under it from the right to occupy the Premises and such action shall not
be deemed to constitute an eviction. Tenant hereby releases Landlord from any
liability for any damages sustained by Tenant or its property arising from the
changing of locks and exclusion from the Premises in accordance with the above
and Tenant hereby agrees to save Landlord harmless from any such liability.
(ii) Termination of Lease. Landlord may terminate this
Lease without any right by Tenant to reinstate its rights by conditions hereof.
Upon such termination, Tenant shall immediately surrender possession of the
Premises to Landlord and Landlord shall immediately become entitled to receive
from Tenant damages equal to the aggregate rentals reserved for the balance of
the term, less the fair rental value of the Premises for the duration of the
Lease Term (taking into account and deducting from such fair rental value all
costs and expenses resulting from Tenant's default including, but not limited to
the cost of refitting the Premises and costs of vacancy).
(iii) Reletting. With or without terminating this Lease, as
Landlord may elect, Landlord may re-enter and repossess the Premises or any part
thereof, and lease the Premises to any other person upon such terms as Landlord
shall deem reasonable for a term within or beyond the term of this Lease;
provided, however, that any such reletting prior to termination shall be for the
account of Tenant, and Tenant shall remain liable for:
(1) All minimum annual rent, additional rent and
other sums which would be payable under this Lease by Tenant in the absence of
such expiration, termination or repossession, less
(2) All net proceeds, if any, of any reletting
effective for the account of Tenant after deducting from such proceeds (without
limitation), all repossession costs, brokers' commissions attributable to or
allocable to the portion of Lease remaining following such default, attorneys'
commissions, attorneys' fees and expenses, employees' expenses, alteration and
refitting costs and the expenses of preparation for such reletting.
If the Premises are at the time of default sublet or
leased by Tenant to others (in strict accordance with the provisions of this
Lease), Landlord may, as Tenant's agent, collect rents due from any subtenant or
other tenant and apply such rents to the rent and other obligations due
hereunder without in any way affecting Tenant's obligations to Landlord
hereunder (provided that credit shall be given to Tenant for all net sums
collected by Landlord from any such subtenant). Such agency, being given to
Landlord for security, is hereby declared to be coupled with an interest and
irrevocable.
(iv) Acceleration of Rent. Landlord may declare minimum
annual rent and all items of additional rent for the entire balance of the then
current term immediately due and payable, together with all other charges,
payments, costs and expenses payable by Tenant as though such amounts were
payable in advance on the date of the event of default occurred.
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(v) Base Minimum Rent. Under no circumstances shall
Landlord be entitled, as a result of the election of one or more remedies set
forth above, to recover more than the aggregate base minimum rent set forth in
paragraph 3A (and, if applicable, paragraph 28, below).
C. No expiration or termination of this Lease term pursuant to
subparagraph (B)(ii) above or by operation of law or otherwise (except as
expressly provided herein), and no repossession of the Premises or any part
thereof or exclusion of Tenant from the Premises pursuant to subparagraph B,
above, or otherwise shall relieve Tenant of its liabilities and obligations
hereunder, all of which shall survive such exclusion, expiration, termination or
repossession and Landlord may, at its option, xxx for and collect rent and other
charges due hereunder at any time and from time to time as and when such charges
accrue.
D. With respect to any portion of the Premises which has been
vacated by Tenant, Landlord may remove all property therefrom and store such
property in a public warehouse or elsewhere at the cost of Tenant, without
service of notice or resort to legal process and without being deemed guilty of
trespass or becoming liable for any loss or damage which may be occasioned
thereby.
E. Subject to B(v) above, no right or remedy herein conferred
upon or reserved to Landlord is intended to be exclusive of any other right or
remedy herein or by law provided, but each shall be cumulative and in addition
to every other right or remedy given herein or now or hereafter existing at law
or in equity or by statute. In the event of a breach or threatened breach by
Tenant of any provision of this Lease, Landlord shall have the further right of
injunction, as if all other remedies were not provided for herein.
F. If Tenant shall default in the performance of any covenant
or obligation required to be performed by it under this Lease, Landlord may
perform the same for the account and at the expense of Tenant, after first
giving notice to Tenant of its intention to do so. If Landlord at any time is
compelled to pay or elects to pay any sum of money or to do any act which will
require the payment of any sum of money by reason of the failure of Tenant to
comply with any provisions hereof, or if Landlord is compelled to incur any
expense, including counsel fees, in instituting, prosecuting or defending
against any action or proceeding instituted by reason of any default of Tenant
hereunder, the amount of such payments or expenses shall be paid by Tenant to
Landlord immediately upon demand.
G. No waiver by Landlord of any breach by Tenant of any of its
obligations, agreements or covenants hereunder shall be a waiver of any
subsequent breach or of any other obligation, agreement or covenant, nor shall
any forbearance by Landlord to seek a remedy for any breach by Tenant be a
waiver by Landlord of its rights and remedies with respect to such or any
subsequent breach.
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H. UPON THE OCCURRENCE OF ANY EVENT OF DEFAULT, TENANT, WITH
UNDERSTANDING OF THE RELINQUISHMENT OF CERTAIN RIGHTS TO WHICH TENANT WOULD
OTHERWISE BE ENTITLED AS A MATTER OF LAW AND DUE PROCESS INCLUDING THE RIGHT TO
NOTICE AND JUDICIAL HEARING, HEREBY EMPOWERS ANY PROTHONOTARY OR ATTORNEY OF
COURT OF RECORD TO APPEAR FOR TENANT, WITH DECLARATION FILED, IN ANY AND ALL
ACTIONS WHICH MAY BE BROUGHT FOR RENT AND/OR THE CHARGES, PAYMENTS, COSTS AND
EXPENSES HEREIN RESERVED AS RENT, OR HEREIN AGREED TO BE PAID BY TENANT AND TO
SIGN FOR TENANT AN AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN AMICABLE
ACTION OR ACTIONS FOR THE RECOVERY OF SUCH RENT OR OTHER CHARGES, PAYMENTS,
COSTS AND EXPENSES, AND IN SAID SUITS OR IN SAID AMICABLE ACTION OR ACTIONS TO
CONFESS JUDGMENT AGAINST TENANT FOR ALL OR ANY PART OF THE RENT SPECIFIED IN
THIS LEASE, AND OTHER CHARGES, PAYMENTS, COSTS AND EXPENSES RESERVED AS RENT OR
AGREED TO BE PAID BY TENANT AND FOR INTEREST AND COSTS TOGETHER WITH AN
ATTORNEYS' COMMISSION OF TEN PERCENT (10%) OR FIVE THOUSAND DOLLARS ($5,000.00),
WHICHEVER SHALL BE GREATER. SUCH AUTHORITY SHALL NOT BE EXHAUSTED BY ONE
EXERCISE THEREOF, BUT JUDGMENT MAY BE CONFESSED AS AFORESAID FROM TIME TO TIME
AS OFTEN AS ANY OF SAID RENT AND/OR CHARGES, PAYMENTS, COSTS AND EXPENSES
RESERVED AS RENT OR AGREED TO BE PAID BY TENANT SHALL FALL DUE OR BE IN ARREARS.
NOTWITHSTANDING THE ABOVE AND NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE
CONTRARY, LANDLORD AGREES THAT LANDLORD SHALL ONLY BE ENTITLED TO CONFESS
JUDGMENT FOR MONEY AGAINST TENANT FOR SUMS WHICH ARE DUE AND OWING AT THE TIME
OF SUCH CONFESSION (I.E., LANDLORD AGREES THAT LANDLORD SHALL NOT BE ENTITLED TO
CONFESS JUDGMENT AGAINST TENANT FOR ACCELERATED RENTALS COVERING PERIODS WHICH
HAVE NOT THEN OCCURRED). THE FOREGOING SHALL IN NO MANNER LIMIT LANDLORD'S
ABILITY TO CONFESS JUDGMENT FROM TIME TO TIME FOR SUMS THEN OUTSTANDING.
I. UPON THE EXPIRATION OF THE THEN CURRENT TERM OF THIS LEASE
OR THE EARLIER TERMINATION OR SURRENDER HEREOF AS PROVIDED IN THIS LEASE, TENANT
WITH UNDERSTANDING OF THE RELINQUISHMENT OF CERTAIN RIGHTS TO WHICH TENANT WOULD
OTHERWISE BE ENTITLED AS A MATTER OF LAW AND DUE PROCESS, INCLUDING THE RIGHT TO
NOTICE AND JUDICIAL HEARING, AGREES THAT IT SHALL BE LAWFUL FOR ANY ATTORNEY TO
APPEAR AS ATTORNEY FOR TENANT AS WELL AS FOR ALL PERSONS CLAIMING BY, THROUGH OR
UNDER TENANT AND
15
TO SIGN AN AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN AMICABLE ACTION IN
EJECTMENT AGAINST TENANT AND ALL PERSONS CLAIMING BY, THROUGH OR UNDER TENANT
AND THEREIN CONFESS JUDGMENT FOR THE RECOVERY BY LANDLORD OF POSSESSION OF THE
PREMISES, FOR WHICH THIS LEASE SHALL BE ITS SUFFICIENT WARRANT, WHEREUPON IF
LANDLORD SO DESIRES, A WRIT OF POSSESSION OR OTHER APPROPRIATE WRIT UNDER THE
RULES OF CIVIL PROCEDURE THEN IN EFFECT MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR
WRIT OR PROCEEDINGS; PROVIDED, HOWEVER, IF FOR ANY REASON AFTER SUCH ACTION
SHALL HAVE BEEN COMMENCED, THE SAME SHALL BE DETERMINED AND THE POSSESSION OF
THE PREMISES REMAIN IN OR BE RESTORED TO TENANT, LANDLORD SHALL HAVE THE RIGHT
FOR THE SAME DEFAULT AND UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON THE
TERMINATION OF THIS LEASE UNDER ANY OF THE TERMS OF THIS LEASE, TO BRING ONE OR
MORE FURTHER AMICABLE ACTION OR ACTIONS AS HEREINBEFORE SET FORTH TO RECOVER
POSSESSION OF THE PREMISES AND CONFESS JUDGMENT FOR THE RECOVERY OF POSSESSION
OF THE PREMISES AS HEREINABOVE PROVIDED.
J. In any amicable action for ejectment and/or for recovery of
damages, Landlord shall first cause to be filed in such action an affidavit made
by it or someone acting for it, setting forth the facts necessary to authorize
the entry of judgment and if a true copy of this Lease (and such affidavit shall
be sufficient evidence of the truth of the copy) be filed in such action, it
shall not be necessary to file the original as warrant of attorney, any rule of
court, custom or practice to the contrary notwithstanding.
K. If proceedings shall be commenced by Landlord to recover
possession under the Acts of Assembly and Rules of Civil Procedure, either at
the end of the term or earlier termination of this Lease, or for nonpayment of
rent or any other reason, Tenant specifically waives the right to the three (3)
month notice and to the fifteen (15) or thirty (30) days' notice required by the
Landlord and Tenant Act of 1951, and agrees that no notice shall be required in
either or any such case.
L. Notwithstanding anything herein elsewhere contained to the
contrary, Landlord agrees that Landlord will not exercise any right or remedy
provided for in this Lease or allowed by law because of any default of Tenant,
unless Landlord shall first have given written notice thereof to Tenant, and
Tenant (i) within a period of ten (10) days thereafter shall have failed to pay
the sum or sums due if the default consists of a failure to pay money, or (ii)
if such default shall consist of anything other than the failure to pay a sum or
sums due hereunder, Tenant shall have failed within a period of thirty (30) days
after notice from Landlord to have commenced efforts toward the cure of such
default and/or shall have failed to diligently proceed in good faith to
effectuate such cure as expeditiously as possible; provided, however, that no
such notice from Landlord shall be required nor shall Landlord be required to
allow any part of the notice periods if such default by Tenant creates an
emergency condition or if Tenant shall have removed from or shall be in the
course of removing from the Premises, or Tenant shall have failed to provide the
insurance required by this Lease, or if a Petition in Bankruptcy or for
reorganization shall
16
have been filed by or against the Tenant resulting in an order for relief in
bankruptcy, or for reorganization, or if a receiver or trustee is appointed for
Tenant, or if Tenant makes an assignment for the benefit of creditors; provided,
further, however that Landlord shall not be required to give any notice required
under this subparagraph L more than two (2) times within any twelve (12) month
period for non-monetary events of defaults and shall not be required to provide
any notice for monetary events of default in any calendar year during which
Tenant has already twice failed to pay monetary obligations within ten (10) days
of their due date.
24. Additional Provisions Relative to Alterations and Additions.
A. All proposed Tenant improvements shall be in accordance
with schedules, plans and specifications to be supplied to Landlord by Tenant,
all of which shall in all instances first be subject to Landlord's approval.
Tenant shall provide Landlord with evidence that each contractor performing work
on the Premises has adequate workmen's compensation insurance and general
liability insurance for bodily injury or death to any person or persons and
property damage, together with a certificate from the insurer (who shall be
reasonably satisfactory to Landlord), naming Landlord as an additional insured
and to the further effect that such insurance may not be cancelled or
substantially modified without at least thirty (30) days' prior written notice
to Landlord. The levels and amounts of insurances may be reviewed and increased
pursuant to the standards set forth elsewhere herein.
B. In making any approved improvements, Tenant shall comply
with any and all laws, statutes, ordinances, rules, regulations and requirements
of the municipal and other duly constituted governmental authorities and
insurance organizations.
25. Place of Payment of Rent and Notices.
All rent shall be payable without notice, demand, offset or
defalcation to Landlord at the address hereinafter set forth. No payment by
Tenant or receipt by Landlord of a lesser amount then the minimum rent or
additional rent stipulated herein shall be deemed to be other than on account of
the minimum annual rent or additional rent, nor shall any endorsement or
statement on any check or any letter accompanying any such check or payment be
deemed an accord and satisfaction, and Landlord may accept such check (and cash
such check) or payment without prejudice to Landlord's right to recover the
balance of such minimum annual rent or additional rent and to pursue any other
remedy set forth in this Lease. Any notice, demand, request, consent, approval
or communication that either party desires or is required to give to the other
party under this Lease shall be in writing and shall be sent by certified mail,
return receipt requested, and shall be deemed served upon receipt or refusal of
the articles so sent. Notices shall be sent to the addresses set forth below:
Landlord: Bryn Mawr Mall Associates
X.X. Xxx 000
Xxxxxxxx, XX 00000
17
With a required copy to: Xxxxxxxxxxx X. Xxxxxxxx, Esquire
Xxxxxxxxxxx X. Xxxxxxxx, P.C.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0
Xxxxxxxx, XX 00000
Tenant: Fidelity Leasing, Inc.
[Property Mailing Address to be Added]
With a required copy to: Xxxxxxx X. Abt, Esquire
Ledgewood Law Firm, P.C.
0000 Xxxxxx Xxxxxx - 0xx Xxxxx
Xxxxxxxxxxxx, XX 00000
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26. Condition of Premises at Termination.
At the expiration of the term of the Lease, howsoever
terminated, Tenant shall surrender the Premises to Landlord in the same
condition as existed immediately following completion of the Tenant improvements
referenced in paragraph 1C, above. The Premises shall be returned in good order
and condition, broom clean, reasonable wear and tear alone excepted. Provided
Tenant is not in default hereunder, all furniture and non-fixture equipment
shall remain the property of Tenant and, provided Tenant is not in default
hereunder, Tenant shall have the right to remove all furniture and non-fixture
components.
27. Other Important Provisions.
A. Right of First Refusal; Right to Lease Vacant Space. Tenant
shall have a right of first refusal with respect to the leasing of space in
Building II, all strictly upon the terms and conditions more fully hereinafter
set forth. In the event Landlord desires to lease to any third party any space
within the building of which the Premises is a part, Landlord shall first
provide Tenant with a "term sheet" containing the relevant terms, conditions and
provisions of such proposed lease for the space. In the event Tenant desires to
lease all such space referenced in the term sheet, upon all of the terms and
conditions set forth in the term sheet, Tenant shall so advise Landlord, in
writing, within ten (10) days of Landlord's transmittal of the term sheet to
Tenant (and for the purposes of this paragraph only, Landlord may transmit such
term sheet by facsimile and Tenant may transmit its response by facsimile). In
the event Tenant so exercises Tenant's right of first refusal, Landlord shall
either submit to Tenant an addendum to this Lease relative to the additional
space or, alternatively, submit to Tenant a separate lease agreement for such
additional space, which lease agreement shall, as nearly as possible, be
identical in form and substance to this Lease (but shall contain all terms,
conditions and provisions set forth in the term sheet, even if the same conflict
with this Lease), except that the lease term for such space shall be coterminous
with the term of this Lease. Provided, however, that in the event there shall be
less than three (3) years under the then term of this Lease, Tenant may only
exercise the rights of first refusal hereunder in the event Tenant
simultaneously and validly exercises Tenant's First Option or Second Option.
Tenant shall have six (6) days within which to execute such addendum or separate
lease agreement. In the event Tenant affirmatively elects not to lease such
additional space or, alternatively, fails to notify Landlord, in writing, within
ten (10) days of Landlord's transmittal of the term sheet, or in the event
Tenant fails to timely execute the addendum or new lease agreement, Landlord
shall be permitted to lease the space to a third party under the terms and
conditions of the Term Sheet. In the event Landlord so enters into such a lease
with a third party, Tenant's rights of first refusal with respect to such
contiguous space shall automatically expire and the provisions of this paragraph
27A shall be of no further force or effect during the term of that tenant but
shall be reinstated thereafter. In the event Landlord does not enter into a
lease on the terms and conditions of the Term Sheet within ninety (90) days of
the date it was presented to Tenant, Tenant's right of first refusal with
respect to such space shall be reinstated.
19
The above rights of first refusal shall only be available to
Tenant during the term of this Lease and shall only be available to Tenant so
long as Tenant is not in default under the terms and provisions of this Lease.
B. Personal Property. Tenant shall at all times be responsible
for and shall pay before delinquency all municipal, county, state and/or federal
taxes assessed against any leasehold interest or any personal property of any
kind owned, installed or used by Tenant.
C. Brokers. Landlord and Tenant each represent and warrant to
each other that they have not dealt with any brokers other than Xxxxx Xxxx &
Company, Inc. and The Xxxxx Company. Landlord will be responsible for the
payment of the brokerage commission of Xxxxx Xxxx & Co., Inc., and The Xxxxx
Company pursuant to a separate agreement between Landlord and Xxxxx Xxxx & Co.,
Inc. In the event a party shall breach the representations and warranties above
relative to dealings with brokers, such breaching party shall indemnify, save
and hold harmless the other party of, from and against any claims for
commissions, broker's fees and similar fees arising therefrom.
D. Parties Bound. Specifically subject to the provisions of
this Lease regarding consent by Landlord, this Lease shall be binding upon the
parties hereto and shall be binding upon and inure to the benefit of and be
enforceable by their respective heirs, administrators, successors and assigns.
E. Waiver of Custom. Landlord shall have the right at all
times, any law, usage or custom notwithstanding, to enforce strictly the
provisions of this Lease, and the failure of Landlord at any time or times,
strictly to enforce any provision hereof shall not be construed as having
created a custom or waiver in any way contrary to the specific provisions of
this Lease or as having in any way or manner modified this Lease.
F. Number and Gender. For the purposes of this Lease, the
singular shall include the plural and the plural shall include the singular and
the masculine shall include the feminine and the neuter, as the context may
require. The word "Landlord" as used herein shall mean the owner from time to
time of the fee or equitable title to the Premises and upon transfer of fee or
equitable title, the person named herein as Landlord shall have no further
liability or obligation hereunder for all matters which occur or accrue
following such transfer of fee or equitable title.
G. Captions. The captions contained herein are for the
convenience of the parties only and shall not in any way modify, amplify, alter
or give full notice of the provisions hereof.
H. Amendments. This Lease may be changed, waived, discharged
or terminated only by an instrument in writing signed by the parties hereto.
20
I. Partial Invalidity. If any clause or provision of this
Lease or the application thereof to any person or in any circumstance shall to
any extent be invalid or unenforceable, the remainder of this Lease, or the
application of such clause or provision to persons or in circumstances other
than those as to which it is valid or unenforceable, shall not be affected
thereby, and each clause and provision of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
J. Non-Recordability. Neither this Lease nor any memorandum
hereof shall be recorded, and any efforts by Tenant to do so shall constitute a
material default hereunder.
K. Landlord's Authority. Landlord covenants and represents
that Landlord is duly authorized to enter into this Lease and perform all of the
covenants, terms and conditions herein set forth.
L. Tenant's Authority. Tenant covenants and represents that
Tenant is duly authorized to enter into this Lease and perform all of the
covenants, terms and conditions herein set forth.
M. Limitation of Landlord's Liability. Landlord's
responsibility under this Lease shall be limited to Landlord's interest in the
Premises. Tenant agrees to look solely to Landlord's interest in the Premises
for the collection of any judgment or similar legally binding judicial award
and, in entering any such judgment or award, the person entering same shall
request the prothonotary to xxxx the judgment or award index accordingly. Tenant
acknowledges that, based upon Landlord's representations, Landlord is the
equitable owner of the Premises and the Property and that Landlord shall under
no circumstances be liable to Tenant for Landlord's inability to deliver
possession of the Premises in accordance with the provisions of this Lease for
reasons beyond Landlord's actual and direct control.
N. Time of the Essence. Time shall be deemed of the essence
with respect to the performance of all obligations hereunder.
O. Governing Law. This Lease shall be governed by the laws of
the Commonwealth of Pennsylvania.
P. Signage. Landlord shall have the right to display a "For
Sale" sign at any time, and at any time within six (6) months of the expiration
of this Lease a "For Rent" sign, or both "For Rent" and "For Sale" signs; and
all such signs shall be placed upon such part of the Premises as Landlord may
elect and may contain such information as Landlord may require. Prospective
purchasers or tenants, authorized by Landlord, may inspect the Premises at
reasonable hours at any time upon reasonable advance notice to Tenant so as to
minimize the effect of same upon Tenant's use and enjoyment of the Premises.
21
Q. Entire Agreement. This Lease constitutes the entire
agreement between the parties hereto. Except as specifically set forth herein,
there are no promises, representations or understandings between the parties of
any kind or nature whatsoever. All negotiations, drafts, conversations and
written documents existing prior to the execution of this Lease shall be
disregarded in connection with the interpretation and construction of this Lease
and shall be deemed merged herein.
R. Effectiveness. The furnishing of the form of this Lease
shall not constitute an offer and this Lease shall become effective upon and
only upon its execution by and delivery to each party hereto.
S. Counterpart/Facsimile Execution. This Lease may be executed
in multiple counterparts, which together shall constitute one binding agreement.
Further, facsimile execution shall be binding and have the same force and effect
as execution by original ink signatures.
T. Canon of Construction. This Lease has been reviewed and
negotiated by the parties and their respective counsel. Accordingly, there shall
not be applied any canon of construction to the effect that documents are to be
construed against the drafting party and this Lease shall be interpreted fairly
without any such canon.
U. Rules and Regulations. Landlord reserves the right to
promulgate reasonable rules and regulations for the benefit of the Property and
the tenants of the Property including, but not limited to, matters relating to
parking, use and enjoyment of common amenities, aesthetics (e.g., window
treatments), etc. Once promulgated, Landlord will provide Tenant and (all other
tenants) with copies of such rules and regulations, which shall be binding upon
Tenant and all other tenants. Provided, however, that Landlord alone shall be
entitled to enforce such rules and regulations. Provided, further, that no such
rules and regulations shall in any manner materially and adversely affect the
rights, privileges and benefits provided Tenant hereunder.
V. Parking. Landlord represents that the Property will contain
205 parking spaces and that Tenant shall be permitted four (4) reserved parking
spaces located in close proximity to Tenant's entrance. Tenant may xxxx such
spaces as exclusive, but shall obtain Landlord's prior written consent as to the
aesthetics of any such markings. Provided, further, that Landlord shall not in
any manner be responsible for policing the exclusive parking spaces (and shall
not be required to become involved in disputes relative to others parking or
attempting to park within the exclusive areas).
28. Options to Renew.
A. First Option. Provided that Tenant is not in default under
this Lease beyond any applicable notice and cure period, either at the time of
exercise of Tenant's option or at the time the extended term commences, Tenant
will have the option (the "First Option") to
22
extend the term of this Lease beyond the initial 6 year, 2 month term (the
"Initial Term") for an additional period of five (5) years (the "First Option
Period"), upon the same terms, covenants and conditions of this Lease, except
that the minimum monthly rent during the First Option Period will be determined
as hereinafter set forth. In the event Tenant desires to exercise Tenant's First
Option, Tenant shall, at least nine (9) months prior to the expiration of the
Initial Term, so advise Landlord by an unequivocal written notice of such
desire. Landlord shall, within thirty (30) days of receipt of such notice,
advise Tenant in writing of the minimum monthly rent Landlord desires to charge
for the First Option Period. Within thirty (30) days of Tenant's receipt of
Landlord's notification, Tenant shall advise Landlord, in writing, of Tenant's
election of one of the following: (i) Tenant's acceptance of Landlord's proposed
rental provisions for the First Option Period (in which case Landlord and Tenant
shall promptly enter into a Lease Extension Agreement incorporating Landlord's
minimum monthly rental determination), or (ii) Tenant's desire to exercise the
First Option, but with the minimum monthly rent for the First Option Period to
be determined pursuant to subparagraph (C), below. In the event Tenant fails to
notify Landlord of either option set forth in (i) and (ii), above, Tenant shall
be deemed to have not exercised the First Option, and the Lease shall terminate
at the expiration of the Initial Term. Unless otherwise agreed to by the parties
in writing, Tenant's exercise of Tenant's option rights hereunder shall only be
effective if it relates to all space being leased by Tenant at the time of such
exercise.
B. Second Option. Provided that Tenant properly exercised the
First Option and Tenant is not in default under this Lease beyond any applicable
notice and cure period, either at the time of exercise of Tenant's option or at
the time the second extended term commences, Tenant shall have a second option
(the "Second Option") to extend the term of this Lease beyond the First Option
Period for an additional period of five (5) years (the "Second Option Period"),
upon the same terms, covenants and conditions of this Lease, except that the
minimum monthly rent during the Second Option Period will be determined as
hereinafter set forth. In the event Tenant desires to exercise Tenant's Second
Option, Tenant shall, at least nine (9) months prior to the expiration of the
First Option Period, so advise Landlord by an unequivocal written notice of such
desire. Landlord shall, within thirty (30) days of receipt of such notice,
advise Tenant in writing of the minimum monthly rent Landlord desires to charge
for the Second Option Period. Within thirty (30) days of Tenant's receipt of
Landlord's notification, Tenant shall advise Landlord, in writing, of Tenant's
election of one of the following: (i) Tenant's acceptance of Landlord's proposed
rental provisions for the Second Option Period (in which case Landlord and
Tenant shall promptly enter into a Lease Extension Agreement incorporating
Landlord's minimum monthly rental determination), or (ii) Tenant's desire to
exercise the Second Option, but with the minimum monthly rent for the Second
Option Period to be determined pursuant to subparagraph (C), below. In the event
Tenant fails to notify Landlord of either option set forth in (i) and (ii),
above, Tenant shall be deemed to have not exercised the Second Option, and the
Lease shall terminate at the expiration of the First Option Term. Unless
otherwise agreed to by the parties in writing, Tenant's exercise of Tenant's
option rights hereunder shall only be effective if it relates to all space being
leased by Tenant at the time of such exercise.
C. Option Period Monthly Rent. In the event Tenant exercises
Tenant's option with respect to the First Option Period or Second Option Period
pursuant to
23
subparagraphs (A)(i) or (B)(i), above, the minimum monthly rent shall be as
proposed by Landlord; in the event Tenant exercises Tenant's option pursuant to
subparagraphs (A)(ii) or (B)(ii), above, the minimum monthly rent for the First
Option Period (or Second Option Period, if applicable) shall be determined as
follows:
1. The minimum monthly rent for the First Option
Period (or Second Option Period, as applicable) shall be the then-fair market
rental value of the Premises, as determined in accordance with paragraph (C)
(2), below.
2. The "then-fair market rental value of the
Premises" shall be the minimum monthly rent for the First Option Period (or
Second Option Period, as applicable) (which may not necessarily result in level
rentals throughout the five (5) year term, but may provide for increased rentals
during the term). In no event shall the "then-fair market rental value of the
Premises" result in minimum monthly rent in an amount less than that in effect
immediately prior to the expiration of the First Option Period (or Second Option
Period, as applicable). To determine the "then-fair market rental value of the
Premises," Landlord and Tenant each shall select one MAI appraiser within thirty
(30) days of Tenant's notice to Landlord pursuant to subparagraph (A)(ii) or
(B)(ii) (and each MAI so selected must be an MAI who is not currently, nor has
ever been, engaged by either Landlord or Tenant). The two MAI appraisers so
chosen shall, within thirty (30) days of the expiration of the thirty (30) day
period set forth above, select a third MAI appraiser who shall, within thirty
(30) days of his/her appointment, alone determine the "then-fair market rental
value of the Premises", analyzing and utilizing all factors which impact upon
the "then-fair market rental value of the Premises", including giving effect to
normal commissions, rent abatements and Landlord contributions to Tenant
improvements for renewal tenants (with the proviso set forth above that base
minimum rent may not be less than that in effect at the end of the Initial Term
or First Option Period, as applicable). Said MAI's determination shall be final,
binding and unappealable by the parties, and the parties shall thereafter enter
into a Lease Extension Agreement prepared by Landlord and incorporating the fair
market rental figure so determined by the MAI.
D. Time of Essence. Time shall be deemed specifically of the
essence with respect to all provisions contained in this paragraph 28.
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IN WITNESS WHEREOF, intending to be legally bound hereby, the parties
have executed this Lease as of the day and year first above written.
Witness: Landlord:
Bryn Mawr Mall Associates, a
Pennsylvania Limited Partnership
________________________ By:________________________________(SEAL)
Xxxxx X. XxXxxxxxx, General Partner
Tenant:
Fidelity Leasing, Inc.
Attest:
______________________(SEAL) By:_________________________________
, Secretary , President
25
PREMISES SKETCH/PLAN
26
EXHIBIT "A"
TENANT'S SPACE PLAN
[To be attached and agreed upon ]
27
EXHIBIT "B"
WEST GOSHEN TOWNSHIP CODE - ' 84-52. SIGN REGULATIONS
28
EXHIBIT "C"
