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Exhibit 10.7
LEASE AGREEMENT BETWEEN WALNUT BRIDGE
ASSOCIATES AND ATX TELECOMMUNICATIONS
This lease agreement is effective as of the second day of January, 1993
(nineteen hundred and ninety three), by and between Walnut Bridge Associate,
LANDLORD, and ATX Telecommunications, TENANT, whereby the Parties agree that
landlord will lease to the tenant 16,000 square feet of office, storage, and
telecommunications equipment space in the building situated at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, under the terms and conditions herein set
forth.
This lease shall incorporate additional lease terms of each of the three
different leased spaces in this building. Lease terms shall include space
location, footage, lease term, rent inception date, yearly rent, tenant
improvements, optional parking, usage restrictions, use of ATX services,
additional rental, and cancellation option for one space. Said terms shall be in
addition to all the other terms and conditions contained in this lease.
FIRST FLOOR RENT DATA:
a. SPACE LOCATION. First Floor, mostly eastern most areas
b. FOOTAGE. About 1,000 square feet. Final footage to be determined
at end of equipment installation but by December 31, 1994. Tenant may
increase leased area, but not to exceed 2,000 square feet on first floor
during term of this lease, but may not reduce the space once added.
c. LEASE TERM. Ten years from January 1, 1993 to December 31, 2002.
d. RENT INCEPTION DATE. January 1, 1994
e. YEARLY RENTAL. First year, during the period ending December 31,
1993, $10.00 (ten dollars) per square foot. Subsequent years, effective
January 1 of each year, rent to increase by $0.35 (thirty five cents)
yearly, plus pro rata operating cost increase to a base year of 1995.
Landlord can ad $0.10 (ten cents) flat rate yearly to rent in lieu of
operating cost pass throughs. Each yearly rent increase, effective January
1, 1999, shall not be less than the percentage increase in the Philadelphia
Urban Wage Earners CPI Index for the twelve month period ending the prior
October 31.
f. USAGE RESTRICTIONS. To be used only for electrical, generating,
and related equipment. and general storage. First floor space not to be
used for any telecommunications or related equipment.
g. ADDITIONAL RENTAL. If part of this space is used for
telecommunications or related equipment, then that part of the first floor
rental shall increase to the higher of the telecommunications rental rate
on the fifth floor or the then current new tenant rental at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇.
FOURTH FLOOR RENT DATA:
a. SPACE LOCATION. Fourth floor, Western half of the floor.
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b. FOOTAGE. 5,000 square feet.
c. LEASE TERM. Ten years from January 1, 1993 to December 31, 2002.
d. RENT INCEPTION DATE. January 1, 1993.
e. YEARLY RENTAL. First year, to period ending December 31, 1993,
rent is $5.00 (five dollars) per square foot, yearly, but shall be abated
to $3.75 (three dollars and seventy five cents) per square foot due to
construction work.
f. SUBSEQUENT YEARS. Effective January 1, 1994, and January 1, 1995,
rent to increase by $0.25 (twenty five cents) yearly per square foot from a
$5.00 (five dollar) base. Therefore, rent from January 1, 1994 to December
31, 1994 to be $5.25 (five dollars and twenty five cents) per square foot.
Effective January 1, 1996 rent shall be $6.00 (six dollars) per foot and
shall increase each January 1 thereafter by $0.50 (fifty cents) but no less
than CPI increase as in fifth floor lease.
g. CANCELLATION OPTION. Either landlord or tenant may terminate this
lease as of the end of any lease year (December 31), by giving the other
party ninety days advance notice.
h. USAGE RESTRICTION. This space is to be used only for storage.
i. ADDITIONAL RENTAL. If part of this space is used for any
telecommunications related purpose, the rent for this space shall increase
to the higher of the rental on the fifth floor or the rent charge to new
tenants at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇.
FIFTH FLOOR RENT DATA:
a. SPACE LOCATION. Fifth floor, entire floor.
b. FOOTAGE. 10,000 (ten thousand) square feet.
c. LEASE TERM. Ten years from January 1, 1993 to December 31, 2002.
d. RENT INCEPTION DATE. January 1, 1995.
e. YEARLY RENTAL. First two and one half years rental, for calendar
year 1993, 1994, and the first half of 1995, which rent is being waived in
consideration of the terms and special agreements of this lease, the rent
is as follows:
1993 rental = $15.00 (fifteen dollars) per square foot
1994 rental = $15.65 (fifteen dollars and sixty five cents) per square
foot
1995 rental = $16.30 (sixteen dollars and thirty cents) per square foot
Rental for each year, starting January 1, 1996 and running until the end of
the lease term, shall increase yearly on its January 1 anniversary by the
greater of:
1. $0.50 (fifty cents) per square foot, plus at landlord's option
either $0.15 (fifteen cents) or actual pro rata operating cost increase
from prior year; or
2. the yearly percentage increase in the Philadelphia Urban Wages
CPI index or its successor, as multiplied against the prior year's
rent, for the twelve
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month period ending each preceding October 30, but not to exceed 5%
during the initial ten year term of this lease.
f. USAGE RESTRICTIONS. Can use for any telecommunications usage,
offices, storage, or any other reasonable usage.
Specific Alterations and Improvements: Tenant is responsible for all
additional alterations or improvements which tenant wishes to make to the leased
premises. However. prior to making any changes or alterations or performing any
work on the leased premises, tenant will submit to landlord the full
information, plans, and/or specifications of all work which tenant would like to
perform. All work is subject to the advance written approval of landlord,
although landlord's approval of non-structural work shall not be unreasonably
withheld.
Tenant will provide landlord with proper certificates of insurance and will
hold landlord completely harmless for all work, injuries to workmen, full
payment to all contractors and workmen, and for any other manner of liability
for which landlord could or does become liable by reason of any work performed
on or about tenant's premises. At the end of the lease term, tenant will return
premises to landlord in the same condition as it is at inception of the lease
(in addition to alterations approved by landlord), reasonable wear with good
maintenance and care, expected,
Tenant, will install the following improvements in the building, primarily
for its own needs, but which may also be utilized by the building for use by
itself and other tenants.
1. All new windows as approved by landlord and similar to these at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ on floors 4, 5, and 6, including all necessary masonry alterations
and repairs.
2. A new electrical transformer of 1,000 KVA capacity.
3. A 120 ton rooftop cooling tower with piping from it to the middle of the
3, 4, 5, and 6th floors.
4. Installation of a new roof after completion of work in the roof area.
5. A security system to prevent unauthorized entry to the upper three
floors.
6. A suitable lobby entrance for the upper three floors.
These improvements shall at all times remain on property of Walnut Bridge,
but shall be used and maintained by the tenant during the term of this lease.
Expected Improvements by Tenant: Tenant may, with the reasonable approval
of the landlord do the following:
1. install a generator on the first floor for backup power.
2. Renovate the fifth floor for telephone switching and related
telecommunications uses with adjoining office or conference room spaces,
including kitchen and bathrooms. Such renovations may include electrical,
plumbing, conduit, carpentry, masonry, new interior walls, painting, and
other related work that is customary and necessary for such usage, provided
that work does not interfere with the use of other floors in the building.
Where such work goes to other floors, like piping, wiring, and
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conduit, tenant shall be liable for the footage and locations of such
facilities in the amount they diminish the rental area and value of such
other floors. All improvements shall, at lease termination, at landlord's
option, each remain with the building or be removed by the tenant.
3. Run underground conduit and entrance facilities through the front,
rear, and side of or beneath said building to connect to or construct under
or above ground conduit or wiring for the reasonable purpose of connecting
facilities in said building with conduits and wiring in other locations,
including but not limited to ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, or other lines in
the rear railroad rights of way, conduits or lines of PECO, Western Union,
▇▇▇▇ Atlantic, and other Telecommunications vendors. The placement and
appearance of such lines and conduits shall be subject to landlord's
reasonable approval for the appearance, safety, and locations of said line.
4. Install conduits and wiring that may be extended, connected, and run
through the building to connect to the Telecommunications facilities of the
tenant and other potential providers or tenants, subject to landlord's
approval of the reasonable locations of such facilities. Tenant shall pay
landlord for the space used by such facilities in areas not leased by the
tenant. Charges to the tenant shall not be based on feet of conduit used,
but only for square footage of floor space used or rendered unusable
because of use by or for tenant.
Use of Premises: Tenant is leasing the within premises for various
individual and restricted uses above described. Tenant shall not use these
premises for any other purpose without the advance written consent of landlord,
which consent landlord is not be obliged to give. Tenant shall use the premises
during normal business hours, except the telecommunications usage shall be round
the clock. Tenant shall at all times maintain premises in a clean and safe
manner and in compliance with all governmental safety codes, ordinances and
common practices. Tenant will be liable to landlord for any damage or
destruction to premises, whether from fire, accident, or any other cause and,
not caused by landlord's negligence. Tenant shall make sure that no damage,
abuse, misuse, nuisance, or other inappropriate acts are committed on the
premises and will immediately repair and restore the premises if any such acts
occur. In the event of failure of tenant to perform such repairs in a speedy and
workmanlike manner, landlord may charge tenant for the full cost of such work
and arrange for such work to be done.
It is the understanding and agreement in this lease, between landlord and
tenant, that subject to landlord's reasonable approval, which shall not be
unreasonably denied and must be quickly given, that tenant shall be allowed to
occupy the spaces in said building in a manner for it to best operate its
telecommunications business and install all manner of equipment, wiring, and
perform alterations to that use. It is agreed that tenant shall rent the entire
fifth floor of 10,000 (ten thousand) square feet and shall rent whatever space
it requires for equipment and cabling on the first floor. It shall be allowed to
run wiring, piping, and conduit through the second, third, fourth, and fifth
floors and pay for the space it uses or makes unusable for full use by others on
these floors.
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Tenant and University City Housing Company will jointly rent the 10,000
(ten thousand) square foot on the fourth floor, at said building for use as
storage space. It is agreed that tenant shall have the option of taking over the
University City Housing half of said space at any time University City Housing
decides to vacate said space. Tenant shall also have, at all times, the right
but not the obligation to lease all other space at Walnut Bridge, when such
space becomes available for rental or is vacant, at the rents agreed in this
lease for the fifth floor or as to the third floor only if it so exists, then at
such higher rent as the landlord may be able to obtain or have offered to it.
Tenant shall have priority right to lease up to 25 parking spaces at the
standard rent.
Use of Each Others' Employees and Supplies. It is mutually agreed between
the parties that they may require the service of employees who work for the
other party, including but not limited to building renovation and maintenance,
equipment installation, telecommunication services, leasing, sales, etc. Either
party may employ the services of the others' employees provided they pay the
actual cost for such employees' time. This also applies to supplies, equipment,
or inventory of each other.
Non-Compete; Exclusivity and Abatement: Landlord hereby agrees not to
lease space to any other telecommunications carrier for use as a switching
facility or for use primarily as a long distance carrier without the prior
approval of tenant or the request by tenant to enter into such lease. In
addition, landlord agrees that it will not for its own use or benefit install
any switching or related telecommunications facilities or equipment on said
premises that compete with the business of tenant. Landlord also agrees to
permit tenant to assign all its rights to any successor or company with whom it
is merged or acquired. In addition, landlord agrees to enable tenant to recover
its cost for the Improvements and equipment that will be installed by and are
needed by tenant for its own benefit by granting it a full rental abatement for
two and one half years for the rent on the fifth floor, from January 1, 1993 to
June 30, 1995.
Landlord has agreed to the above and to additional special considerations
and significant rent abatement, and to agreements which effectively restrict use
of the property to tenant's requirements even though tenant only is leasing 15%
of landlord's property, and to exclusively use, offer, or sell the services of
tenant where such are available and not to compete with switching facilities
such as those used by tenant. In consideration of the above and other agreements
by landlord, tenant agrees that during the duration of its lease at Walnut
Bridge and any extension thereof, it will sell to landlord all services which
tenant offers to the public or to others at its direct lowest incurred cost of
each product or service, and to calculate cost per minute or actual cost for
other products it sells, all plus a marks-up of 10% (ten percent) to include
administrative and billing . The cost for long distance usage shall typically be
the cost of local access, plus allocated fibre costs between locations unless
otherwise agreed. Where it would be difficult to determine exact costs, tenant
and landlord will work to determine reasonable estimated costs. Tenant and
landlord agree to estimate such costs based on total or average usage for such
items or, whom practical, to estimate costs based on
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percentage of time to designated areas, like the ▇▇▇▇ Atlantic region, or mid
Atlantic corridor, etc.
It is also agreed that any other tenant at this property, excluding ATX,
shall be considered a tenant and a customer of landlord and all business of said
customer shall be considered as communications business of the landlord and
where such customer is directly billed by ATX, landlord shall be entitled to
receive, at its option (and in consideration of using estimating to reasonably
compute ATX costs), monthly, quarterly or yearly, any revenues received by ATX
from such customer above its cost plus 10% (ten percent) formula as herein above
described.
Landlord shall reasonably establish with ATX a mutually acceptable way of
determining which customers belong to landlord because:
1. they are tenants at the property;
2. they are customers whose business is significantly acquired by the
efforts of landlord or landlord's agents or employees; and
3. they have chosen to be customers of the landlord.
This agreement to use ATX serves shall apply both to landlord or to any
entity which is principally owned by or for the benefit of one or more of the
children whose trusts or partnerships are the limited partners of Walnut Bridge
Associates.
Landlord may identify that it is selling or using ATX services. When so
doing, it must use the same logos, colors, or related ATX identification and
cannot develop its own, except as agreed with tenant.
Subletting: Tenant shall not sublet, underlet, give and divide, or
re-lease these premises or any signage thereof to any other party or for any
other purposes than stated herein without the advance written consent and within
the sole discretion of landlord. The financial strength and history of
maintaining their office and rented space shall be critical factors in any
sublet evaluation by landlord. It is anticipated that in any re-rental, ATX will
assign the entirety of its lease to another comparable user which will operate
this facility in the manner herein described such as through a merge or sale of
ATX. If tenant wishes to sublet its leased space, other than as in preceding
sentence, landlord shall have the option, but not obligation, to terminate this
lease for the space being offered for subletting.
Inspection and Access to Premises: Landlord shall at all reasonable times
have access to leased premises when accompanied by an officer or other available
employee (as designated by officer) or tenant for purpose of performing
maintenance or repairs, inspections, showing premises to inspectors, appraisers,
etc., and for showing premises to prospective tenants if tenant is in default of
the lease or does not exercise a renewal option.
Condemnation or Taking By a Public Authority: If all or any part of the
within leased premises are condemned for any public purpose, landlord shall not
be responsible for any damages or losses suffered by tenant as result of any
condemnation for public
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purposes. If all of the premises shall be condemned for public purposes then the
tenant will terminate as of the date of condemnation. If only part of the
premises is condemned and the remainder of the premises is reasonably useable
for tenant's purpose, then the lease will not be terminated, but the rent and
other charges payable hereunder shall equitably ▇▇▇▇▇.
Casualty or Fire: Landlord shall not be liable to any way to tenant for
any losses or damages suffered through any casualty or fire or to the leased
promises or in any way to the business of tenant, especially but not only since
tenant is installing most of the mechanical systems and being responsible for
their operation. In the event of a partial or total destruction of said
premises, the rent herein stated shall be abated as the portion of the premises
and for the period of time which those premises cannot be used by the tenant for
the purposes herein stated. If landlord is not able to or does not rebuild,
repair, or restore the damaged premises to condition that existed before such
damage or destruction within a period of nine months from the date of its
occurrence, then both tenant and landlord shall each have the option to
terminate this lease as of the end of such nine month period or as of date
landlord notifies tenant that such timely restoration will not take place.
Insurance and Indemnity: Tenant shall at all times maintain landlord as
an additional insured at no extra cost to landlord, on all liability and
umbrella insurance policies which it maintains for the benefit of these premises
and furnish landlord with certificate(s) of insurance showing such coverage.
Tenant shall maintain no less than $20,000,000 of such public liability policies
at all times for the leased premises and for any and all work performed thereon,
with landlord as an additional insured at all times on all such policies. Tenant
shall be fully liable for all injuries suffered on premise by its employees,
customers, visitors, or others.
BUILDING OPERATING COSTS:
Utilities. Tenant to pay all utilities expenses for all its leased space
including all electric, heat, air conditioning, telephone, gas, water and sewer,
and any other utilities used on or about the leased premises, and for all
repairs to all mechanical, plumbing, HVAC, fire suppression or alarms, security
devices, electrical, telecommunication, or any other equipment on or about these
premises, and including any leak or damage to roof since tenant has undertaken
so much work thereon and has ▇▇▇▇▇▇▇ who will regularly traverse; or bring
equipment thereon.
Cleaning. Tenant will be responsible for cleaning the leased space.
Other Building Expenses: Landlord shall be responsible for all other
building operating expenses, including but not limited to real estate taxes,
property insurance, elevators, building's mechanical equipment not installed or
contracted for by tenant, management, etc., except for the utility, cleaning,
and other expenses as above set forth.
Method of Rental Payment: Tenant shall pay the yearly rental in twelve
equal advance monthly installments during the term of this lease and all
extensions thereof. The rent for July 1995 shall be due no later than July 1,
1995 and each successive
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monthly payment shall also be due the first day of each calendar month. Tenant
will pay a late fee of (5) five percent on all rents not received by landlord by
the fifth day of each month, and a late fee of (10) ten percent on all rents not
received by the tenth day of the month. All rents to be sent to the office of
University City Housing Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Suite 617. All checks to be made out to Walnut Bridge Associates.
Default and Eviction: Tenant shall be in default under this lease if:
a. Tenant fails to pay any sum due under thin lease for a period or
more then ten (10) days, after written notice of non-payment is received by
tenant; or
b. Tenant fails to perform in any other term of this lease and such
failure continues for more than twenty (20) days after written notice is
received by tenant, and the failure by tenant to observe or perform any of
the covenants, conditions, or provisions of this lease to be observed or
performed by the tenant, where such failure shall continue for a period of
twenty (20) days after written notice thereof by landlord to tenant;
provided, however, that if the nature of the tenant's default or failure to
pay or perform is such that more than thirty (30) days are reasonably
required for its cure, then tenant shall not be deemed to be in default if
tenant commences such care within thirty (30) day period and thereafter
diligently prosecutes such cure to completion; or
c. Tenant files a petition for bankruptcy or has such a petition flied
against it and such petition is not dismissed or terminated within sixty
(60) days.
In the event of any such default, landlord may at its option give five
days' notice to tenant after which landlord may, either:
1. Repossess premises and/or file an eviction action with or
without terminating the lease and relet the premises and apply the rent
to amounts owed by tenant; or
2. Terminate the lease, repossess the premises and recover from
tenant all sums required to be paid up to the time of repossession,
together with the value of all other rent required to be paid under the
terms of the lease in excess of the reasonable rental value of the
premises.
GENERAL PROVISIONS:
a. NOTICES. All notices and demands which may or are to be required
or permitted to be given by either party to the other hereunder shall be in
writing. All notices and demands by the landlord to the tenant shall be
sent by United States mail, postage paid, addressed to the tenant at the
premises, or to such other places as tenant may be from time to time
designate in a notice to the landlord. All notices and demands by the
tenant to the landlord shall be sent by United Stales mail, prepaid
postage, addressed to the landlord at the office of the building, or to
such other person or place as the landlord may from time to time designate
in a notice to the tenant.
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b. RECORDATION. Neither landlord nor tenant shall record this lease
or a short form memorandum hereof without the prior written consent of the
other party, which shall not be withheld unreasonably.
c. QUIET POSSESSION. Upon tenant paying the rent reserved hereunder
after observing and performing all of the covenants, conditions, and
provisions on tenant's part to be observed and performed hereunder, tenant
shall have quiet possession of the premises for the entire term hereof,
subject to all of the provisions of the lease.
d. PRIOR AGREEMENTS. This lease contains all of the agreements of the
parties hereto with respect to any matter covered or mentioned in this
lease, and no prior agreements or understanding pertaining to any such
matters shall be effective for any purpose. No provisions of this lease may
be amended or added to except by an agreement in writing signed by the
parties hereto or their respective successors in interest. This lease shall
not be effective or binding on any party until fully executed by both
parties hereto.
e. SUBORDINATION, ATTORNMENT. Upon the request of the landlord,
tenant will in writing subordinate its right hereunder to the lien of any
first mortgage or first deed of trust to any bank, insurance company, or
other lending institution, now or hereafter in force against the land and
building of which the premises are a part, and upon any building hereafter
placed upon the land of which the premises are a part and to all advances
made or hereafter to be made upon the security thereof.
In the event any proceedings are bought for the foreclosures or in the
event of the exercise of the power of sale under any mortgage or deed of
trust made by the landlord covering the premises, tenant shall attorn to
the purchase upon any such foreclosure or sale and recognize such purchaser
as the landlord under this the provisions of this article to the contrary
notwithstanding, and so long as the tenant is not in default hereunder,
this lease shall remain in full force and effect for the full term hereof.
f. SECURITY DEPOSIT. Tenant is to give landlord a security deposit of
$50,000.00 (fifty thousand dollars). This money is repayable in full to
tenant at lease expiration, provided tenant has returned premises to
landlord in substantially the same condition as at lease inception,
reasonable wear and tear excepted. Tenant will be liable for any
alterations to the premises from lease inception date, that require
restoration to approximately prior condition for landlord to reasonably
re-rent the premises, and be responsible for the removal of all equipment,
alterations, improvements, conduits, etc., which landlord wants removed.
Landlord agrees that this fifty thousand dollars shall be considered a
damage deposit only and shall not be construed as any money of advance rental
payment.
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IN WITNESS WHEREOF, the parties hereto have executed these presents the day
and year first above written, and expressly intended to be legally bound hereby.
LANDLORD:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------------------------------- -----------------------------------------------------
Witness /s/ WITNESS
▇▇▇▇▇▇▇ ▇▇▇▇
General Partner
TENANT:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇ /s/ WITNESS
----------------------------------------------------- -----------------------------------------------------
ATX Telecommunications Witness
▇▇▇▇▇▇▇ ▇▇▇▇, President
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