EXHIBIT 10.3
N E T L E A S E
between
RUDY'S THERMO-NUCLEAR DEVICES,
Landlord
and
TDL MANUFACTURING, INC.,
TULIP DEVELOPMENT LABORATORY, INC.
jointly and severally, Tenant
Premises:
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0000 Xxxxxx Xxxx,
Xxxxxxxxxx,
Xxxxxxx Xxxxxxxx,
Xxxxx Xxxxxx,
Pennsylvania
ii
i
TABLE OF CONTENTS
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ARTICLE 1 DEMISED PREMISES; TERM OF LEASE; POSSESSION 1
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ARTICLE 2 RENT 2
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ARTICLE 3 PAYMENT OF TAXES, ASSESSMENTS, ETC. 5
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ARTICLE 4 SURRENDER; REMOVAL OF PERSONALTY 7
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ARTICLE 5 INSURANCE 8
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ARTICLE 6 RIGHT TO PERFORM OTHER PARTIES' COVENANTS 10
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ARTICLE 7 REPAIRS, MAINTENANCE AND CONDITION OF THE DEMISED PREMISES 11
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ARTICLE 8 COMPLIANCE WITH LAWS 12
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ARTICLE 9 CHANGES, ALTERATIONS, ADDITIONS 15
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ARTICLE 10 DISCHARGE OF LIENS 16
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ARTICLE 11 NO WASTE 17
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ARTICLE 12 USE OF DEMISED PREMISES 17
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ARTICLE 13 ENTRY ON DEMISED PREMISES BY LANDLORD 18
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ARTICLE 14 INDEMNIFICATION OF LANDLORD AND TENANT 19
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ARTICLE 15 DAMAGE OR DESTRUCTION 20
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ARTICLE 16 CONDEMNATION 21
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ARTICLE 17 INTENTIONALLY OMITTED 23
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ARTICLE 18 ASSIGNMENTS, MORTGAGES AND SUBLEASES OF TENANT'S INTEREST 23
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ARTICLE 19 CONDITIONAL LIMITATIONS--DEFAULT PROVISIONS 25
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ARTICLE 20 SECURITY DEPOSIT 30
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ARTICLE 21 CONDITION OF DEMISED PREMISES 30
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ARTICLE 22 NOTICES 31
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ARTICLE 23 HOLDOVER 31
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ARTICLE 24 QUIET ENJOYMENT 31
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ARTICLE 25 EXCAVATION AND SHORING 32
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ARTICLE 26 NO RENT ABATEMENT 32
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ARTICLE 27 [INTENTIONALLY OMITTED] 33
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ARTICLE 28 ESTOPPEL CERTIFICATES 33
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ARTICLE 29 SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT 34
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ARTICLE 30 WAIVER OF JURY TRIAL AND COUNTERCLAIMS 35
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ARTICLE 31 DEFINITION OF CERTAIN TERMS 35
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ARTICLE 32 BROKERS 36
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ARTICLE 33 CONSENT OF LANDLORD 36
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ARTICLE 34 PAYMENTS UNDER PROTEST 37
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ARTICLE 35 GOVERNING LAW; NON-RECORDATION 37
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ARTICLE 36 NO ORAL MODIFICATION 37
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ARTICLE 37 COVENANTS TO BIND AND BENEFIT RESPECTIVE PARTIES 37
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ARTICLE 38 CAPTIONS, TABLE OF CONTENTS AND INVALIDITY OF PARTICULAR PROVISIONS
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37
ARTICLE 39 CONSTRUCTION OF THIS LEASE 38
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NET LEASE
THIS NET LEASE (the "Lease") is made as of this __ day of ________, 2005
between RUDY'S THERMO-NUCLEAR DEVICES, a Pennsylvania limited partnership having
an address of ("LANDLORD") and TDL
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MANUFACTURING, INC. AND TULIP DEVELOPMENT LABORATORY, INC., each a Pennsylvania
corporation having its principal place of business at 0000 Xxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000 (each, and jointly and severally, "TENANT").
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This Lease is granted and accepted upon the foregoing and upon the
following covenants and conditions, and subject to the following restrictions,
and each of the parties hereby expressly covenants and agrees to keep, perform
and observe all the terms, covenants and conditions herein contained on its part
to be kept, performed and observed.
ARTICLE 1
DEMISED PREMISES; TERM OF LEASE; POSSESSION
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SECTION1.1 Except for that portion of the premises identified as
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Landlord's Storage (as defined below), Landlord hereby demises and leases to
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Tenant, and Tenant hereby leases from Landlord, the following described premises
(the "DEMISED PREMISES"): all that certain plot, piece or parcel of land known
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by the street number 0000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx, lying and being
in Milford Township, Bucks County, Commonwealth of Pennsylvania, as more
particularly bounded and described on Exhibit A annexed hereto and made a part
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hereof (the "LAND"), together with all of the buildings and improvements
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constructed or to be constructed thereon (the "IMPROVEMENTS"), and together with
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all the right, title and interest, if any, of Landlord in and to any strips and
gores of land adjoining the Demised Premises on any side thereof; any land lying
in the bed of any street or avenue abutting the Demised Premises to the center
line thereof; any easements or other rights in adjoining property inuring to
Landlord by reason of ownership of the Demised Premises; and all fixtures and
any replacements thereof, attached to or used in connection with the use,
occupation and operation of the Demised Premises and all alterations, additions
and improvements hereafter made to the Demised Premises, title to which may vest
in Landlord; excepting however, approximately 1,200 square feet of the Demised
Premises, currently occupied by Landlord, for continued storage of any
maintenance materials and equipment as Landlord may designate, as more
particularly described on Exhibit B annexed hereto and made a part hereof
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("LANDLORD'S STORAGE").
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SUBJECT, however, to the following (the "PERMITTED ENCUMBRANCES"):
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(a) All of the easements, covenants restrictions and other matters of
record, to the extent that the same are in full force and effect, listed on
Exhibit C attached hereto and made a part hereof; and
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(b) Present and future zoning laws, ordinances, resolutions and regulations
of the Township of Milford and all present and future ordinances, laws,
regulations and orders of all boards, bureaus, commissions and bodies of any
municipal, county, state or federal sovereigns now or hereafter having or
acquiring jurisdiction of the Demised Premises and the use and improvement
thereof.
SECTION1.2 The term of this Lease (the "TERM") shall begin on
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_______________, 2005 (the "COMMENCEMENT DATE") and shall end the last day of
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the calendar month in which shall occur the fifth (5th) anniversary of the
Commencement Date (the "FIXED EXPIRATION DATE"), unless sooner terminated or
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extended as provided herein (the "EXPIRATION DATE").
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ARTICLE 2
RENT
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SECTION2.1 A. Tenant shall pay to Landlord, in lawful money of the
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United States which shall be legal tender for payment of all debts, public and
private, at the time of payment, in the manner and at the address of Landlord
specified in this Article 2, during the Term an annual rent (the "NET RENT"),
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over and above the other payments to be made hereunder by Tenant, as follows:
(i) From the Commencement Date through and including the last day of
the calendar month in which shall occur the first anniversary of the
Commencement Date, at the rate of $109,200.00, in equal monthly installments of
$9,100.00;
(ii) From the first day of the calendar month immediately following the last
day of the calendar month in which such first anniversary occurred through and
including the last day of the calendar month in which shall occur the second
anniversary of the Commencement Date, at the rate of $111,384.00, in equal
monthly installments of $9,282.00;
(iii) From the first day of the calendar month immediately following the
last day of the calendar month in which such second anniversary occurred through
and including the last day of the calendar month in which shall occur the third
anniversary of the Commencement Date at the rate of $113,616.00, in equal
monthly installments of $9,468.00;
(iv) From the first day of the calendar month immediately following the last
day of the calendar month in which such third anniversary occurred, through and
including the last day of the calendar month in which shall occur the fourth
anniversary of the Commencement Date, at the annual rate of $117,024.00, in
equal monthly installments of $9,752.00; and
(v) From the first day of the calendar month immediately following the last
day of the calendar month in which the fourth anniversary occurred, through and
including the last day of the Term, at the annual rate of $120,528.00, in equal
monthly installments of $10,044.00.
B. Such Net Rent shall be paid, except as otherwise provided herein,
without notice or demand, and without set-off, offset, credit, abatement or
deduction of any kind whatsoever, in advance on the first day of each and every
month of the Term.
C. All Net Rent and all other sums due from Tenant to Landlord under this
Lease (collectively, "RENT") shall be payable, at Tenant's election, either by
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(a) wire transfer of funds to an account designated by Landlord from time to
time or (b) a check drawn on a bank which is a member of the Pennsylvania
Clearinghouse Association or a successor thereto. Until Tenant shall have been
given notice otherwise by Landlord, Tenant shall pay Rent by check to Landlord
at its address set forth in Article 22.
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SECTION2.2 If the Term hereof shall commence on any day other than the
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first day of a calendar month, Tenant shall pay Landlord on the Commencement
Date proportionate amount of Net Rent due for the balance of such current month.
SECTION2.3 It is the purpose and intent of Landlord and Tenant that this
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is a net lease which shall yield to Landlord the Net Rent specified in Section
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2.01.A hereof in each year during the Term of this Lease and that all costs,
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expenses and obligations of every kind and nature whatsoever relating to the
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maintenance, operation and repair of the Demised Premises which may arise or
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become due during or out of the Term of this Lease shall be paid by Tenant,
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except as herein otherwise specifically provided; provided, however, that
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nothing herein contained shall be construed to require Tenant to pay (i) the
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principal of, or interest on, or any other payments with respect to any
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indebtedness secured by any mortgage which may now or hereafter affect the Land,
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the Improvements or any superior lease and the leasehold interest created
thereby, and all renewals, extensions, supplements, amendments, modifications,
consolidations and replacements thereof or thereto, substitutions therefor, and
advances made thereunder (each, a "FEE MORTGAGE"), any rent on any underlying
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lease, or any other indebtedness of Landlord of any kind, or (ii) any tax, fee
or other amount not payable by Tenant pursuant to Section 3.2 hereof, all of
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which amounts shall be payable by Landlord.
SECTION2.4 A. All Impositions (as hereinafter defined) and other
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sums payable by Tenant pursuant to the terms of this Lease (collectively, the
"ADDITIONAL RENT") shall constitute additional rent and shall be due and payable
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under this Lease at the time and in the manner herein provided for the payment
of Net Rent, and in the event of nonpayment of same by Tenant, Landlord shall
have all rights and remedies with respect thereto as Landlord has hereunder for
the nonpayment of the Net Rent. The extension of time for payment of any
installment of Rent, or the acceptance by Landlord of any money other than
current legal tender of the United States of America, shall not be deemed a
waiver of the rights of Landlord to insist upon having all other payments of
Rent made in the manner and at the time herein specified.
B. In the event Tenant shall fail to pay in good funds any installment
of Rent on or before the tenth (10th) day after same is due, in order to
partially defray Landlord's administrative expenses resulting therefrom, which
Tenant acknowledges shall be difficult to measure, Tenant shall pay to Landlord
a late charge of three (3%) percent of the amount then due. This late charge
shall be deemed Additional Rent and shall, at Landlord's option, be added to the
Rent for the month in which the Rent shall be due. The demand for and collection
of the aforesaid late charges shall in no way be construed as a waiver of any
and all remedies that Landlord may have, either by summary proceedings or
otherwise, as a result of an Event of Default in payment of Rent.
C. No payment by Tenant or receipt by Landlord of a lesser amount than the
Rent herein stipulated shall be deemed to be other than on account of the
earliest stipulated Rent, nor shall any endorsement or statement on any check or
any letter accompanying any check or payment as Rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such Rent or pursue any other remedy
in this Lease.
SECTION2.5 Tenant shall have the option to extend the term of this Lease
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for one (1) additional period of five (5) years from and after the Fixed
Expiration Date (the "OPTION TERM"), by written notice to Landlord at least
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ninety (90) days prior to the Fixed Expiration Date. In the event the option is
so exercised, the term of the Lease shall be extended on the same terms and
conditions, except that the Net Rent during the Option Term shall be as follows:
(i) From the first day of the calendar month immediately following the
last day of the calendar month in which such fifth anniversary occurred through
and including the last day of the calendar month in which shall occur the sixth
anniversary of the Commencement Date, at the rate of $122,938.56, in equal
monthly installments of $10,244.88;
(ii) From the first day of the calendar month immediately following the last
day of the calendar month in which such sixth anniversary occurred through and
including the last day of the calendar month in which shall occur the seventh
anniversary of the Commencement Date, at the rate of $125,397.33, in equal
monthly installments of $10,449.78;
(iii) From the first day of the calendar month immediately following the
last day of the calendar month in which such seventh anniversary occurred
through and including the last day of the calendar month in which shall occur
the eighth anniversary of the Commencement Date at the rate of $127,905.28, in
equal monthly installments of $10,658.77;
(iv) From the first day of the calendar month immediately following the last
day of the calendar month in which such eighth anniversary occurred, through and
including the last day of the calendar month in which shall occur the ninth
anniversary of the Commencement Date, at the annual rate of $131,742.44, in
equal monthly installments of $10,978.54; and
(v) From the first day of the calendar month immediately following the last
day of the calendar month in which the ninth anniversary occurred, through and
including the last day of the Option Term, at the annual rate of $135,694.71, in
equal monthly installments of $11,307.89.
ARTICLE 3
PAYMENT OF TAXES, ASSESSMENTS, ETC.
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SECTION3.1 A. Tenant shall pay or cause to be paid (except as set
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forth in Section 3.2 hereof), before any fine, penalty, interest or cost may be
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added thereto for the non-payment thereof, all taxes, assessments, water and
sewer rents, rates and charges, vault license fees or rentals, levies, license
and permit fees and other governmental charges, general and special, ordinary
and extraordinary, foreseen and unforeseen, of any kind and nature whatsoever
which at any time during Tenant's lease of the Demised Premises or during the
Term of this Lease may be assessed, levied, imposed upon or become due and
payable out of, or become a lien upon, the Demised Premises or any part thereof
or appurtenance thereto (collectively, the "IMPOSITIONS", and individually, an
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"IMPOSITION"). If, by law, any Imposition may be paid in installments, Tenant
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may pay the same in the minimum installments permitted by the applicable
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governmental entity. Tenant shall pay only such installments as shall become
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due during Tenant's lease of the Demised Premises during the Term of this Lease.
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All Impositions for the fiscal or tax years in which the Term of this Lease ends
shall be apportioned so that Tenant shall pay only the portion thereof which
corresponds with the portion of said year as is within the Term.
B. Notwithstanding Section 3.1.A, following an Event of Default
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hereunder, or in the event any trustee, mortgagee or holder of any Fee Mortgage
(each, a "FEE MORTGAGEE") shall require the following, then following receipt by
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Tenant from Landlord of notice to such effect, Tenant shall pay to Landlord,
with each monthly installment of Net Rent, commencing with the next monthly
installment of Net Rent coming due after said notice is received, a sum equal to
one-twelfth (1/12th) of the annual amount of each Imposition next coming due as
determined by Landlord, which such sums shall be adjusted by Landlord
periodically to reflect actual increases or decreases in such Impositions next
coming due, so that on the next date on which any installment of such Imposition
shall be due by Landlord to the appropriate taxing authority, Landlord shall
have previously collected from Tenant sufficient sums on account of such
Imposition to enable Landlord to pay as and when same is due. If the actual
amount of an Imposition is unknown, upon discovering the actual amount of such
Imposition, Landlord shall make appropriate adjustments to the amount of such
monthly installments. If at any time Landlord shall determine that the amount
collected from Tenant on account of the next installment of a Imposition shall
be deficient, then Tenant shall deposit with Landlord within ten (10) days of
demand therefore, the amount of such deficiency. If at any time Landlord shall
determine that the amount collected or estimated to be collected from Tenant on
account of the Impositions next coming due is in excess of the amount actually
due, Landlord shall apply the excess to the next monthly installment of
Impositions coming due.
C. Tenant shall be responsible for and shall pay, before delinquency, all
municipal, county, state and federal taxes assessed during the term of this
Lease against any personal property of any kind owned by or placed in, upon or
about the Demised Premises by Tenant.
SECTION3.2 Nothing herein contained shall require Tenant to pay any of
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the following (and the following shall not be deemed included within the term
"Imposition"): municipal, state or federal income taxes, capital levy, gift,
estate, succession or inheritance taxes of Landlord, corporate profit or
franchise taxes imposed upon any corporate owner of the fee of the Demised
Premises, income, profit, or revenue taxes, assessments or charges imposed upon
the Rent payable by Tenant under this Lease, or transfer taxes imposed upon
Landlord by reason of transfer of any interest of Landlord in the Demised
Premises. Notwithstanding the foregoing, if at any time during the Term of this
Lease the methods of taxation prevailing at the commencement of the Term hereof
shall be altered so that in lieu of, in addition to or as a substitute for the
whole or any part of the Impositions payable upon the date hereof, there shall
be levied, assessed or imposed a tax, assessment, levy, imposition or charge,
wholly or partially as a capital levy or otherwise, on the Rents received
therefrom, or measured by or based in whole or in part upon the Demised Premises
and imposed upon Landlord, then all such taxes, assessments, levies, impositions
or charges or the part thereof so measured or based, computed as if the Demised
Premises was Landlord's only property, shall be deemed to be included within the
term "Impositions". Tenant shall, in addition to the foregoing, pay any new tax
of a nature not presently in effect but which may be hereafter levied, assessed,
or imposed upon Landlord or the Demised Premises, if such tax shall be based on
or arise out of the ownership, use or operation of the Demised Premises. For
the purpose of computing Tenant's liability for such type of tax, the Demised
Premises shall be deemed the only property of Landlord.
SECTION3.3 Upon request, Tenant shall furnish to Landlord no later than
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the date when any Imposition would become delinquent, official receipts of the
appropriate taxing authority or other evidence satisfactory to Landlord or such
Fee Mortgagee, evidencing the payment thereof.
SECTION3.4 A. Tenant may, subject to Section 3.5, seek a reduction
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in the valuation of the Demised Premises for tax purposes and may contest in
good faith by appropriate proceedings, at Tenant's expense, the amount or
validity in whole or in part of any Imposition for any tax year during or prior
to the Term of this Lease, and may defer payment thereof during such contest
(except that Tenant shall not defer payment of real estate taxes and assessments
and sewer rents), provided that (i) Tenant is diligently and in good faith
contesting such Imposition by appropriate legal proceedings which shall operate
to prevent the enforcement or collection of the same or the sale of the Demised
Premises or any part thereof to satisfy such Impositions, (ii) Landlord would
not be, by reason of such post-ponement or deferment, subject to any actual or
threatened criminal sanctions or penalties or personal liability, as Landlord
shall determine in its reasonable judgment, and (iii) no Fee Mortgage would by
reason of such postpone-ment or deferment be, in the reasonable judgment of
Landlord, in danger of being put in default or foreclosure, and provided further
that if, in the reasonable opinion of Landlord, the Demised Premises or any part
thereof or interest therein may be in danger of being sold, forfeited,
foreclosed, terminated, cancelled or lost as a result of the nonpayment of such
Imposition, Tenant shall promptly upon request of Landlord pay same. Tenant
shall not, without the consent of Landlord, whose consent shall not be
unreasonably withheld or delayed, settle any such claim or proceeding (i) in
respect of any fiscal year on or after the fiscal year in which the Term of this
Lease commences or (ii) the outcome of which will adversely affect the taxes due
on the Demised Premises for any fiscal year on or after the fiscal year in which
the Term of this Lease commences. As long as no Event of Default is then
continuing, Landlord hereby designates Tenant as Landlord's attorney-in-fact,
coupled with an interest, to the extent necessary to commence and prosecute to
completion any such contest, and Landlord agrees to cooperate with Tenant in any
such contest to the extent necessary, including signing any documents, all at
Tenant's sole cost and expense.
B. Tenant hereby assigns to Landlord all claims and proceedings arising
from such attempts to reduce the valuation of the Demised Premises for tax
purposes, provided that so long as no Event of Default is then continuing
Landlord shall not exercise, and shall permit Tenant to exercise, all such
rights in connection therewith.
SECTION3.5 Landlord shall have the right to seek a reduction in the
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valuation of the Demised Premises assessed for tax purposes and to prosecute any
action or proceeding theretofore commenced by Tenant, if such assessed valuation
or valuations shall in whole or in part relate and pertain to any period of time
subsequent to the expiration or termination of this Lease. To the extent to
which any tax refund payable as a result of any such proceeding which Landlord
or Tenant may institute, or payable by reason of compromise or settlement of any
such proceeding, is based upon a payment made by anyone other than Landlord,
Landlord shall be authorized to collect the same, subject, however, to
Landlord's obligation to reimburse Landlord and Tenant forthwith for any
reasonable expenses incurred by Landlord or Tenant in connection therewith, and,
provided no Event of Default is then continuing hereunder, the net amount of
such refund shall be apportioned between Landlord and Tenant based upon the
portion of the fiscal period to which the refund relates which occurred during
the Term.
SECTION3.6 If any person or entity to whom any sum is directly payable
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by Tenant under any of the provisions of this Lease shall refuse to accept
payment of such sum from Tenant, Tenant shall thereupon give written notice of
such fact to Landlord and shall pay such sum directly to Landlord at the address
specified in Article 22 hereof, and Landlord shall thereupon pay such sum to
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such person or entity.
ARTICLE 4
SURRENDER; REMOVAL OF PERSONALTY
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SECTION4.1 Tenant shall on the last day of the Term or upon any earlier
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termination of this Lease, surrender and deliver up possession of the Demised
Premises to Landlord in good order, condition and repair, reasonable wear and
tear and casualty pursuant to Article 15 excepted, free and clear of all
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tenancies and occupancies other than permitted subleases pursuant to Section
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18.3, and free and clear of all liens and encumbrances other than the Permitted
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Encumbrances and those, if any, created or suffered by Landlord, without any
payment or allowance whatever by Landlord on account of any improvements which
may have been made to the Demised Premises by or on behalf of Tenant.
SECTION4.2 All furnishings, moveable trade fixtures, equipment and other
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personal property shall be removed by Tenant at or prior to the termination of
this Lease. Tenant shall repair any damage to the Demised Premises caused by
such removal or pay or cause to be paid to Landlord the cost of repairing any
damage arising from such removal and restoration. Any personal property of
Tenant or any subtenant which shall remain in the Demised Premises after the
termination of this Lease may be deemed to have been abandoned by Tenant or such
subtenant and may be retained by Landlord as its property or be disposed of in
such manner as Landlord may see fit, at Tenant's sole cost and expense. All
Alterations made by Tenant and its subtenants in and to the Demised Premises
shall remain on the Demised Premises upon the termination of this Lease unless
Tenant, in its sole discretion, removes such Alterations at or prior to the
Expiration Date. Tenant shall repair any damage caused to the Demised Premises
caused by such removal.
SECTION4.3 If this Lease shall terminate pursuant to Article 15 or 16
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hereof, then, notwithstanding Sections 4.2 and 4.3 hereof, Tenant or any
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subtenant shall have a reasonable time thereafter, not to exceed thirty (30)
days, to remove any property which it shall be entitled to remove pursuant to
Section 4.2 hereof.
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SECTION4.4 The provisions of this Article 4 shall survive any termination of
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this Lease.
ARTICLE 5
INSURANCE
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SECTION5.1 A. Tenant, at its sole cost and expense, shall maintain
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during the Term:
(a) property insurance insuring the Building and Improvements against
all perils included within the classification of fire, extended coverage,
vandalism, malicious mischief, special extended peril (all risk), boiler, flood,
earthquake, glass breakage and sprinkler leakage, and building ordinance
coverage, with a deductible not in excess of $10,000 and in an amount sufficient
to prevent the Landlord or the Tenant from becoming co-insurers, but in any
event in an amount not less than the full insurable value thereof, naming
Landlord as an additional insured and naming each Fee Mortgagee, as their
respective interests may appear. Such insurance will provide, to the extent
permissible under applicable laws, that no act or omission of Tenant shall
affect or limit the obligation of the insurance company to pay the amount of the
loss sustained. The term "full insurable value" shall be deemed to mean the
actual replacement value less physical depreciation, with such extended coverage
as shall from time to time be customary for premises similarly situated in Bucks
County, Pennsylvania;
(b) commercial general liability insurance including contractual liability
coverage and coverage for bodily injury, property damage and personal injury
occurring upon, in or about the Demised Premises and the adjoining sidewalks and
passageways under which Tenant is named as the insured and Landlord and each Fee
Mortgagee whose name has been provided by Landlord to Tenant are named as
additional insureds, as their interests may appear. The minimum limits of
liability shall be a combined single limit with respect to each occurrence of
$1,000,000 with a $2,000,000 annual aggregate and a $2,000,000 umbrella;
B. Landlord, at its sole cost and expense, shall maintain during the
term:
(a) property insurance insuring Landlord's Alterations, equipment and
personal property located in the Landlord's Storage Area against all perils,
included within the classification of fire, extended coverage, vandalism,
malicious mischief, special extended peril (all risk), boiler, flood,
earthquake, glass breakage and sprinkler leakage, with a deductible not in
excess of $70,000 and in an amount sufficient to prevent Landlord or the Tenant
from becoming co-insurers, but in any event in an amount not less than the full
insurable value thereof.
(b) commercial general liability insurance including contractual liability
coverage and coverage for bodily injury, property damage and personal injury
occurring upon, in or about the Demised Premises and the adjoining sidewalks and
passageways under which Landlord is named as the insured and Tenant and each Fee
Mortgagee whose name has been provided by Tenant to Landlord are named as
additional insureds, as their interests may appear. The minimum limits of
liability shall be a combined single limit with respect to each occurrence of
$1,000,000 with a $2,000,000 annual aggregate and a $2,000,000 umbrella;
SECTION5.2 A. All insurance provided for in this Article 5 shall be
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effected under valid and enforceable policies, issued by insurers licensed to do
business in the Commonwealth of Pennsylvania and having a general policy holder
rating of "A" or better and a financial rating of at least vii A+ in Best's
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Insurance Guide or any successor thereto (or if Best's Insurance Guide shall
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cease to exist, any equivalent standard generally accepted in the real estate
community). All policies of insurance (or in lieu thereof certificates of
insurance [form Accord 27 or Accord 25, as appropriate] unless any Fee Mortgage
requires that policies be delivered to it) which evidence Tenant's insurance and
evidence of the payment of all premiums of such policies will be delivered to
Landlord prior to Tenant's occupancy of the Demised Premises and from time to
time at Landlord's request made not more often than once per Lease Year.
Evidence of each renewal or replacement of a policy (and certificates of
insurance shall be deemed sufficient evidence thereof) shall be delivered by
Tenant to Landlord at least thirty (30) days prior to the expiration of each
such policy. All certificates obtained by Tenant will provide that should the
policies be canceled prior to the respective expiration dates thereof, the
issuing insurer will endeavor to mail thirty (30) day's written notice to the
certificate holder. All commercial general liability and property insurance
policies maintained by Tenant will be written as primary policies, not
contributing with and supplemental to the coverage that Landlord or any Fee
Mortgagee may carry.
B. Nothing in this Article 5 shall prevent Tenant from taking out
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insurance of the kind and in the amounts provided for under this Article under a
blanket insurance policy or policies covering other properties as well as the
Demised Premises, provided, however, that any such policy or policies of blanket
insurance (i) shall specify therein the amounts of the total insurance allocated
to the Demised Premises, which amounts shall not be less than the amounts
required by Section 5.1 hereof, and (ii) such amounts shall be sufficient to
------------
prevent Landlord or any Fee Mortgagee from becoming a co-insurer within the
terms of the applicable policy or policies.
C. The insurance policies required under this Lease to be furnished by
Tenant to Landlord may, at the election of Tenant, be furnished and/or paid for
by any subtenant or other person having an insurable interest in the Demised
Premises, and Landlord shall accept such insurance as though it had been
furnished by Tenant.
SECTION5.3 Except with respect to the insurance required by Section
---------- -------
5.1(b) hereof, neither Landlord nor Tenant shall take out separate insurance
--
concurrent in form or contributing in the event of loss with the insurance
required by this Article unless the other party is included therein as an
additional insured, with loss payable as provided in this Lease. Each party
shall immediately notify the other of the placing of any such separate insurance
and shall cause the same to be delivered as required by Section 5.2 hereof.
-----------
SECTION5.4 Upon the expiration of this Lease, the unearned premiums upon
----------
any such transferable insurance policies shall be apportioned if (a) Landlord
requests an assignment of such insurance policies and such policies are
transferred to Landlord, and (b) no Event of Default under this Lease shall be
then continuing.
SECTION5.5 So long as both Landlord's and Tenant's policies then in force
----------
include mutual waivers of subrogation, Landlord and Tenant, to the fullest
---
extent permitted by law, each waive all right of recovery against the other and
---
agree to release the other from liability for loss or damage, to the extent such
loss or damage is covered by valid and collectible insurance in effect at the
time of such loss or damage. Landlord and Tenant shall use their best efforts
to obtain waiver of subrogation clauses in all policies of insurance required by
this Lease.
ARTICLE 6
RIGHT TO PERFORM OTHER PARTIES' COVENANTS
-----------------------------------------
SECTION6.1 If Tenant shall at any time fail to pay any Imposition in
----------
accordance with the provisions of Article 3 hereof, or to take out, pay for,
---------
maintain or deliver any of the insurance policies or certificates therefor as
provided for in Article 5 hereof, or shall fail to make any other payment or
----------
perform any other act on Tenant's part to be performed as in this Lease
provided, then Landlord, after thirty (30) days' notice to Tenant (or such
lesser notice as may be required under any other Section of this Lease, provided
that no such notice shall be required in the event of an emergency) and without
waiving or releasing Tenant from any obligation of Tenant contained in this
Lease or from any default by Tenant, and without waiving Landlord's right to
take such action as may be permissible under this Lease as a result of such
default, may (but shall be under no obligation to):
(a) pay any Imposition, including any interest and penalties due
thereon, payable by Tenant pursuant to the provisions of Article 3 hereof, or
---------
(b) take out, pay for and maintain any of the insurance policies provided
for in Article 5 hereof, or
----------
(c) make any other payment or perform any other act on Tenant's part to be
made or performed as in this Lease provided, and may enter upon the Demised
Premises for any such purpose, and take all such action thereon, as may be
necessary therefor.
SECTION6.2 All reasonable sums so paid by Landlord and all reasonable
----------
costs and expenses incurred by Landlord, including reasonable attorneys' fees,
in connection with the performance of any such act in this Article 6 shall
---------
constitute Additional Rent payable by Tenant under this Lease and shall be paid
by Tenant to Landlord within thirty (30) days of Landlord's notice to Tenant of
payment accompanied by reasonably itemized receipts for all such payments.
SECTION6.3 Tenant shall have the right to make such repairs which are
----------
required to be made by Landlord under the terms of this Lease on behalf of
Landlord, and to be reimbursed by Landlord for the reasonable cost thereof, if
Landlord fails to make such repairs pursuant to subsection (a) below.
A. Landlord agrees to make repairs as required under the terms of this
Lease and as follows:
(i) If Landlord fails to undertake and commence the repairs required
under this Lease, Tenant shall immediately notify Landlord in writing of the
required and outstanding repairs.
(ii) Landlord shall undertake and commence the required repairs within ten
(10) days after receipt of written notice from Tenant and shall make all
diligent efforts to complete such repairs in a timely manner.
(iii) Anything in this Lease to the contrary notwithstanding, Landlord
agrees that in the event of an emergency which:
(a) poses the threat of imminent, severe damage to Tenant, Tenant's
employees, Tenant's business or Tenant's property; and
(b) necessitates prompt maintenance, repair, or replacement of items which
are otherwise required by this Lease to be maintained, repaired, or replaced by
Landlord,
then Tenant may at its option proceed forthwith to make repairs.
B. If Landlord fails to reimburse Tenant for such repair costs incurred
by Tenant within ten (10) days after written request from Tenant therefor (which
request must be supported by paid receipts), Tenant may deduct the cost thereof
from the Rent otherwise payable hereunder.
ARTICLE 7
REPAIRS, MAINTENANCE AND CONDITION OF THE DEMISED PREMISES
----------------------------------------------------------
SECTION7.1 Throughout the Term of this Lease, except to the extent of
----------
Landlord's obligations hereunder, Tenant, at its sole cost and expense, shall
take good care of the Demised Premises and shall keep the same in good order and
condition, except for reasonable wear and tear. Tenant shall not be responsible
for structural repairs to the Demised Premises (including, without limitation,
the roof, walls and foundation) or for replacements of the HVAC, plumbing,
mechanical, electrical and other building system.
SECTION7.2 Tenant shall put, keep and maintain all portions of the
----------
Demised Premises and the sidewalks, curbs, alleyways and passageways adjoining
the same in a clean and orderly condition, free of dirt, rubbish, snow, ice and
unlawful obstructions.
SECTION7.3 Landlord shall not be required to furnish to Tenant any
----------
facilities or services of any kind whatsoever during the Term, such as, but not
limited to, water, sewer, steam, heat, gas, hot water, electricity, light and
power, and Tenant shall, at its sole cost and expense, pay or cause to be paid,
prior to the imposition of any penalty or late charge, all charges for gas, oil,
fuel, steam, sewer, electricity, telephone, heat, air conditioning, ventilation,
refuse pickup, janitorial and maintenance service, security and all other
utilities, materials, supplies and services consumed, furnished, used or made
available in, at or upon the Demised Premises during the Term of this Lease,
together with all taxes thereon, if any. Tenant shall keep and maintain in good
repair all utility meters measuring utilities and services consumed at the
Demised Premises. Tenant shall establish accounts in Tenant's name with the
utility companies responsible for supplying utilities to the Demised Premises
and Tenant shall be responsible for all deposits required by the utility
companies to establish such accounts, provided that Tenant shall be entitled to
receive such deposits back at the end of the Term.
SECTION 7.4 Landlord, at is sole cost and expense, agrees to keep in
good order, repair and condition and to: (i) make all necessary repairs and
replacements to all structural components of the Demised Premises, including,
without limitation, the walls, roof and foundation; (ii) replace all necessary
components of the HVAC, plumbing, mechanical, electrical and other building
systems; (iii) make all repairs and replacements to any part of the Demised
Premises necessitated by Landlord's negligence or willful misconduct; (iv) to
the extent not the obligation of the utility company, repair and replace, as
necessary, all utility lines, pipes, ducts, conduits and the like in the Demised
Premises or which serve the Demised Premises and (v) make all necessary repairs,
replacements and alterations to comply with all Legal Requirements (as
hereinafter defined) pursuant to the requirements of Article 8 herein.
ARTICLE 8
COMPLIANCE WITH LAWS
--------------------
SECTION8.1 Throughout the Term, Tenant, at its sole cost and expense,
----------
shall promptly comply with all present and future laws, ordinances, orders,
rules, regulations and requirements of all federal, state and municipal
governments, departments, commissions, boards and officers, and all orders,
rules and regulations of the National Board of Fire Underwriters, or any other
body or bodies exercising similar functions ("LEGAL REQUIREMENTS"), which may be
------------------
applicable to the Demised Premises, occurring after the Commencement Date herein
and due solely to Tenant's particular use of the Demised Premises and the
sidewalks, alleyways, passageways, curbs and vaults adjoining the same.
SECTION8.2 Tenant shall observe and comply with the requirements of all
----------
policies of insurance required to be supplied by Tenant at any time during the
Term with respect to the Demised Premises, whether or not such observance or
compliance is required by reason of any condition, event or circumstance
existing prior to or after the commencement of the term of this Lease, and
Tenant shall, in the event of any violation or any attempted violation of the
provisions of this Section by any subtenant, take steps, promptly upon knowledge
of such violation or attempted violation, to remedy or prevent the same as the
case may be.
SECTION8.3 Tenant shall have the right, after prior written notice to
----------
Landlord, to contest by appropriate legal proceedings diligently conducted in
good faith, in the name of Tenant or Landlord or both, without cost or expense
to Landlord, the validity or application of any Legal Requirement, provided that
(i) Tenant is diligently and in good faith contesting the same by appropriate
legal proceedings which shall operate to prevent the enforcement of the same or
the sale of the Demised Premises or any part thereof to satisfy the same, (ii)
Landlord would not be, by reason of such post-ponement or deferment, subject to
any actual or threatened criminal sanctions or penalties or personal liability,
as Landlord shall determine in its reasonable judgment, and (iii) no Fee
Mortgage would by reason of such postpone-ment or deferment be, in the
reasonable judgment of Landlord, in danger of being put in default or
foreclosure, and provided further that if, in the reasonable opinion of
Landlord, the Demised Premises or any part thereof or interest therein may be in
danger of being sold, forfeited, foreclosed, terminated, cancelled or lost as a
result of such contest, Tenant shall promptly upon request of Landlord pay same.
SECTION8.4 Landlord represents and warrants to Tenant that it has full
----------
right and authority to enter into this Lease and it has a current, valid
certificate of occupancy for the Demised Premises permitting Tenant's use as
contemplated herein. Landlord represents that the Demised Premises is in
compliance with all Legal Requirements. Except to the extent of Tenant's
obligations pursuant to Section 8.1 herein, Landlord shall, at its sole cost and
-----------
expense, promptly comply with all present and future Legal Requirements.
SECTION8.5 Tenant covenants not to discharge from the Demised Premises or
----------
suffer the discharge of, nor to store upon the Demised Premises or suffer the
---
storage of, any Hazardous Materials (as hereinafter defined) in amounts in
--
excess of those permitted or recommended by any governmental or
--
quasi-governmental authority having jurisdiction thereof. In addition to and
--
not in limitation of the foregoing, Tenant covenants that (a) the Demised
--
Premises shall be kept free of all Hazardous Materials, whether placed, stored,
--
used, generated or disposed of in, on, under, within, or about the Demised
Premises, in excess of amounts permitted by appropriate governmental
authorities, and (b) all Hazardous Materials shall be handled in the manner
required by any governmental. The Demised Premises shall not be used to
generate, manufacture, refine, transport, treat, store, handle, dispose,
transfer, produce, process, or in any manner to deal with, Hazardous Materials
in excess of amounts permitted, or in a manner other than required, by any
governmental authority. The Tenant shall comply with, and ensure compliance by
all Tenant's agents, servants, employees and invitees with, all applicable
Hazardous Materials Laws and shall keep the Demised Premises free and clear of
any violations and liens imposed pursuant to such Hazardous Materials Laws. In
the event Tenant receives any written notice from any governmental or
quasi-governmental agency, or from any other person or entity with regard to
health, safety, environment or Hazardous Materials on, under, from or affecting
the Demised Premises, then Tenant shall immediately notify the Landlord. Tenant
shall conduct and complete all investigations, studies, sampling, and testing
and all remedial, removal, and other actions necessary to clean, remove or
encapsulate all Hazardous Materials on, under, from or affecting the Demised
Premises in accordance with all applicable Hazardous Materials Laws, to the
extent that such Hazardous Materials are present at the Demised Premises as a
result of the actions or omissions of Tenant. Tenant shall immediately, upon
request of Landlord, provide unhampered access to all portions of the Demised
Premises to all governmental and quasi-governmental authorities charged with
inspecting the Demised Premises or charged with enforcing or concerned with
Hazardous Materials Laws. Tenant shall protect, indemnify and save harmless the
Landlord from and against all liabilities, obligations, claims, damages,
penalties, causes of action, costs, and expenses (including reasonable
attorney's fees and expenses, investigation and laboratory fees, court costs,
and litigation expenses) ("Claims") imposed upon or incurred by or asserted
against the Landlord by reason of (1) the presence, disposal, escape, seepage,
leakage, spillage, discharge, emission, release, or threatened release
("Release") by Tenant of any Hazardous Material on, under, from or affecting the
Demised Premises; (2) any personal injury (including wrongful death) or property
damage (real or personal) arising out of or related to the Release of such
Hazardous Materials by Tenant; (3) any lawsuit brought or threatened or
settlement reached in connection with the foregoing, provided, however, that
Tenant will be given the opportunity, if available with no adverse effect to
Landlord, to contest any such settlement or governmental order relating to such
Hazardous Materials; or (4) any violation by Tenant of Hazardous Materials Laws
which are based upon or in any way are related to such Hazardous Materials.
Landlord shall protect, indemnify and save harmless Tenant from and against all
Claims incurred by or asserted against Tenant by reason of (1) the Release of
any Hazardous Material on, under, from or affecting the Demised Premises prior
to the Commencement Date; (2) any personal injury (including wrongful death) or
property damage (real or personal) arising out of or related to the Release of
such Hazardous Materials prior to the Commencement Date; (3) any lawsuit brought
or threatened or settlement reached in connection with the foregoing, provided,
however, that Landlord will be given the opportunity, if available with no
adverse effect to Tenant, to contest any such settlement or governmental order
relating to such Hazardous Materials; or (4) any violation of Hazardous
Materials Laws by Landlord which are based upon or in any way are related to
such Hazardous Materials. This Section 8.5 shall survive the termination or
------------
expiration of this Lease. As used herein, the term "HAZARDOUS MATERIALS" shall
-------------------
include, but is not limited to, any flammable explosives, gasoline, petroleum
products, polychlorinated biphenyl, radioactive materials, hazardous wastes,
hazardous or toxic substances, or related or similar materials, asbestos or any
material containing asbestos, or any other substance or material as defined by
any federal, state or local environmental law, ordinance, rule, or regulation
governing the handling, use, storage or disposal of Hazardous Materials,
including the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended (42 U.S.C. Section 9601, et. seq.), the Hazardous
-
Materials Transportation Act, as amended (49 U.S.C. Section 1801, et. seq.), the
-
Resource Conservation and Recovery Act, as amended (42 U.S.C. Sections 6901, et.
seq.), the Pennsylvania Environmental Laws, and the regulations adopted and
-
publications promulgated pursuant to any of the foregoing (collectively, the
-
"HAZARDOUS MATERIALS LAWS").
-------------------------
ARTICLE 9
CHANGES, ALTERATIONS, ADDITIONS
-------------------------------
SECTION9.1 A. Tenant shall have the right, from time to time during
----------
the Term hereof, to make alterations, additions, improvements, substitutions and
replacements (collectively, "ALTERATIONS") of a nonstructural nature in and to
-----------
the Demised Premises that Tenant may deem appropriate, costing not in excess of
Two Hundred Fifty Thousand ($250,000.00) Dollars per Alteration. All
Alterations shall be performed in accordance with all applicable Legal
Requirements.
B. Tenant shall have the right, from time to time during the Term
hereof, to perform Alterations costing in excess of Two Hundred Fifty Thousand
($250,000.00) Dollars (each, a "MAJOR ALTERATION") with the prior written
-----------------
consent of Landlord, not to be unreasonably withheld or delayed, provided that
Tenant shall comply with the following:
(i) Tenant shall furnish to Landlord and any Fee Mortgagee, prior to
the commencement of such Major Alterations, reasonable evidence that such Major
Alterations will be performed without any liens encumbering the Landlord's
estate in the Demised Premises (as, for example, without limitation, furnishing
to Landlord or such Fee Mortgagee any one of the following: a completion bond
from a bank or other financial institution with assets of not less than
$100,000,000, a letter of credit in the estimated amount of the cost of the
Major Alterations to be performed (diminishing as the work is completed), or
cash collateral or a funding commitment from a bank or other financial
institution with assets of not less than $100,000,000);
(ii) Landlord shall have approved the plans and specifications for such
Major Alterations as provided in Section 9.2;
------------
(iii) Tenant shall have procured and paid for, so far as the same may be
required from time to time in connection with any such Major Alterations, all
permits, certificates and authorizations required by any Governmental Authority
or any department, office, bureau, agency or instrumentality thereof now
existing or hereafter created and having jurisdiction over the Demised Premises,
and Tenant shall provide copies of same to Landlord. Landlord shall not
unreasonably refuse to join in any application for such permit or authorization
and shall reasonably cooperate with Tenant, without charge except to the extent
Landlord's participation required is more than de minimis, in which case Tenant
agrees to pay to Landlord, upon demand and as Additional Rent hereunder,
Landlord's actual costs paid or incurred in connection therewith;
(iv) Tenant shall procure from all contractors and submit to Landlord
evidence of worker's compensation insurance and general liability and personal
injury and property damage insurance in an amount not less than $1,000,000.00
combined single limit, on an occurrence basis, naming Landlord, all Fee
Mortgagees and Tenant as additional insureds, and otherwise in form and
substance reasonably satisfactory to Landlord; and
C. Notwithstanding anything herein to the contrary, Tenant shall have
the right not to be unreasonably withheld or delayed, to perform Alterations as
may be necessary or desirable, to allow Tenant to sublease up to fifty (50%)
percent of the rentable area of the Improvements, including without limitation
the installation of windows, doors and demising walls, and changes to the
mechanical, electrical, plumbing, air conditioning, ventilation, heating and
other building systems, provided that, to the extent such Alterations are Major
Alterations, Tenant complies with Section 9.01.B(i), (iii), and (iv) above and
----------------- ----- ----
provided further that any such Alterations shall, when completed, be of such a
character as not to impair the value of the Demised Premises and shall (except
for de minimis exceptions) be performed in accordance with all applicable Legal
Requirements.
SECTION9.2 Landlord agrees to deliver to Tenant, within fifteen (15)
----------
days after receipt of Tenant's written request therefor, either an approval of
or a reasonably detailed objection to plans and specifications for Major
Alterations and such other documents as may be required for the effectuation of
the Tenant's rights under this Article 9 or in connection with any repairs or
---------
restoration work, including, without limitation, those affecting variances,
certificates of occupancy and all permits and authorizations, including permits
for signs and projections, alterations, additions, improvements, substitutions
and replacements.
SECTION9.3 Any Alterations to the Demised Premises or to the present or
----------
any future building thereon, made by any present or future subtenant or
subtenants of the Demised Premises with the permission of the Tenant, shall, for
purposes of this Article 9 and of this Lease, be deemed made by the Tenant and
---------
be governed by this Article 9 and the other applicable provisions of this Lease.
---------
SECTION9.4 Prior to the commencement of any work on or the delivery of any
----------
materials to the Demised Premises for the purpose of constructing Alterations or
--
any Major Alteration, Tenant shall execute and file a Stipulation Against Liens
in accordance with Pennsylvania law and shall provide Landlord with a copy of
the signed and filed Stipulation Against Liens.
SECTION9.5 Tenant, at its sole cost and expense, shall have the right to
----------
install, maintain, use, repair and replace satellite antennas and related
----
equipment and cabling on the roof of the Demised Premises. Upon the expiration
----
or earlier termination of this Lease, Tenant shall remove all satellite antennas
from the roof and repair any punctures to the roof.
SECTION9.6 Tenant, at Tenant's cost, shall have the right to cause the
----------
Demised Premises to be identified by such name or by such signs as Tenant deems
------
necessary, provided that the design, dimension, construction and location of
such signage shall be in compliance with all Legal Requirements.
ARTICLE 10
DISCHARGE OF LIENS
------------------
SECTION10.1 Tenant shall not create or permit to be created or to
-----------
remain, and shall discharge, any mechanic's, laborer's or materialman's lien or
-
any conditional sale, title retention agreement or chattel mortgage, which might
be or become a lien, encumbrance or charge upon the Demised Premises or any part
thereof having any priority or preference over or ranking on a parity with the
estate, rights and interest of Landlord in the Demised Premises or any part
thereof.
SECTION10.2 If any mechanic's, laborer's or materialman's lien shall at
-----------
any time be filed against the Demised Premises or any part thereof, Tenant,
within forty-five (45) days after notice of the filing thereof, shall cause the
same to be discharged of record by payment, deposit, bond, order of a court of
competent jurisdiction or otherwise. If Tenant shall fail to cause such lien to
be discharged within the period aforesaid, then, in addition to any other right
or remedy, Landlord may, after twenty (20) days' notice to Tenant, but shall not
be obligated to, discharge the same either by paying the amount claimed to be
due or by procuring the discharge of such lien by deposit or by bonding
proceedings, and in any such event Landlord shall be entitled, if Landlord so
elects, to compel the prosecution of an action for the foreclosure of such lien
by the lien or and to pay the amount of the judgment in favor of the lien or
with interest, costs and allowances. Any amount so paid by Landlord, and all
reasonable costs and expenses incurred by Landlord in connection therewith,
shall constitute Additional Rent payable by Tenant under this Lease and shall be
paid by Tenant to Landlord on demand.
ARTICLE 11
NO WASTE
--------
Tenant shall not do or suffer any waste, damage, disfigurement or injury to
the Demised Premises or any part thereof, but this shall not be deemed to
prevent demolition or Alterations pursuant to other provisions of this Lease.
ARTICLE 12
USE OF DEMISED PREMISES
-----------------------
SECTION12.1 The Demised Premises may be used for any legal purpose.
-----------
Tenant shall not use or allow the Demised Premises to be used for any unlawful
or illegal business, use or purpose, or in violation of any certificate of
occupancy for the use of the Demised Premises or any part thereof or any use
which may, in law, constitute a public nuisance or would void any insurance then
in force with respect thereto, or for any business, use or purpose deemed by
Landlord in its reasonable discretion to be disreputable or extra hazardous, or
in violation of any Legal Require-ments. Tenant shall, immediately upon the
discovery of any such unlawful, illegal, disreputable or extra hazardous use
take all neces-sary steps, legal and equitable, to compel the discontinuance of
such use and to oust and remove any sub-tenants, occupants or other persons
guilty of such unlawful, illegal, disreput-able or extra hazardous use.
SECTION12.2 Tenant shall not suffer or permit the Demised Premises or
-----------
any portion thereof to be used by the public without restriction or in such
manner as would impair Landlord's title to the Demised Premises or any portion
thereof, or in such manner would create a condition of adverse possession or
prescription by the public, as such, or of implied dedication, of the Demised
Premises or any portion thereof. Tenant hereby acknowledges that Landlord does
not hereby consent, expressly or by implication, to the unrestricted use or
possession of the whole or any portion of the Demised Premises by the public, as
such.
SECTION12.3 Landlord hereby represents and warrants to Tenant as
-----------
follows:
--
A. Landlord is the sole fee simple owner of the Demised Premises;
B. The Demised Premises is not subjected to control or tax by any
improvement, utility, beautification or similar private district or association;
and
C. There is no lease superior in right to this Lease.
ARTICLE 13
ENTRY ON DEMISED PREMISES BY LANDLORD
-------------------------------------
SECTION13.1 Tenant shall permit Landlord and its authorized
-----------
representatives to enter the Demised Premises at all reasonable times during
-------
usual business hours and upon 48 hours prior written notice and Tenant's
approval (except in cases of emergency), and provided that such entry does not
unreasonably disturb any subtenants or other occupants of the Demised Premises,
for the purpose of (a) inspecting the same, (b) accessing Landlord's Storage,
and (c) making any necessary repairs thereto and performing any work therein.
Nothing herein shall imply any duty upon the part of Landlord to do any such
work and performance thereof by Landlord shall not constitute a waiver of
Tenant's default in failing to perform same.
SECTION13.2 A. Landlord shall have the right to enter the Demised
-----------
Premises at all reasonable times during usual business hours and upon reasonable
prior notice for the purpose of showing same to prospective purchasers or
mortgagees thereof and, during the six (6) months prior to the Expiration Date,
for the purpose of showing the same to prospective tenants of the Demised
Premises.
B. If any part of the Demised Premises shall be used for "classified
work" within the meaning of governmental regulations or is otherwise used for
confidential purposes under any sublease with a subtenant, only persons
permitted to do so under such regulations or procedures that govern such
confidentiality may enter such portions of the Demised Premises.
C. Tenant may require that Landlord and its guests be accompanied by
representatives of Tenant or its agents, in which case Tenant will make
representatives available for such purposes at reasonably mutually agreeable
times. Landlord shall minimize any disruption to the Demised Premises and the
subtenants by reason of any inspection or exhibiting of the Demised Premises
under this Lease.
ARTICLE 14
INDEMNIFICATION OF LANDLORD AND TENANT
--------------------------------------
SECTION14.1 A. Except as a result of the negligence or willful
-----------
misconduct of Landlord and its agents, employees and contractors or any breach
of this Lease by Landlord or as otherwise set forth in Section 8.5, Tenant shall
indemnify and save harmless Landlord against and from all liabilities,
obligations, damages, penalties, claims, costs, charges and expenses, including
reasonable attorneys' fees, which may be imposed upon or incurred by or asserted
against Landlord by reason of any of the following:
(i) any work or thing done in, on or about the Demised Premises or any
part thereof by Tenant or any party other than Landlord;
(ii) any use, non-use, possession, occupation, condition, operation,
maintenance or management of the Demised Premises or any part thereof or any
alley, sidewalk, curb, vault, passageway or space adjacent thereto;
(iii) any negligence or intentional misconduct on the part of Tenant or any
of its agents, contractors, servants, employees, subtenants, licensees or
invitees;
(iv) any failure on the part of Tenant to keep, observe, perform or comply
with any of the covenants, agreements, terms or conditions contained in this
Lease on its part to be kept, observed, performed or complied with; or
(v) any accident, injury or damage to any person or property occurring in,
on or about the Demised Premises or any part thereof, or any alley, sidewalk,
curb, vault, passageway or space adjacent thereto.
B. In case any action or proceeding is brought against Landlord by
reason of any such claim, Tenant upon written notice from Landlord shall at
Tenant's expense resist or defend such action or proceeding by counsel approved
by Landlord in writing, which approval shall not be unreasonably withheld or
delayed (it being agreed that counsel designated by any insurer shall be
acceptable). If Tenant has supplied Landlord with insurance policies covering
any of the aforementioned risks, no claim shall be made against Tenant unless
and until the insurer shall fail or refuse to defend and/or pay all or any part
thereof.
C. Landlord shall indemnify, defend and save harmless Tenant against and
from any and all liabilities, damages, penalties, costs, expenses, claims, suits
or actions due to or arising out of (i) any breach, violation or non-performance
of any covenant, condition or agreement in this Lease contained on the part of
the Landlord to be fulfilled, kept, observed and performed; and (ii) any claim
against Tenant arising from damage to property or any injury to persons
(including death resulting at any time therefrom) in, on, or about the Demised
Premises or the sidewalks adjacent thereto arising or accruing out of the gross
negligence or willful misconduct of Landlord or Landlord's use of the Landlord
Storage.
D. Landlord and its respective agents shall not be liable for any injury or
damage to persons or property resulting from fire, explosion, falling plaster,
steam, gas, electricity, water, rain, snow or leaks from any part of the Demised
Premises or from the pipes, appliances or plumbing works or from the roof,
street or sub-surface, or from any other place or by dampness or by any other
cause of whatsoever nature, unless caused by or due to the negligence or willful
misconduct of Landlord, its agents, servants or employees, Landlord's use of the
Landlord's Storage or Landlord's failure to perform its obligations hereunder.
Tenant shall give immediate notice to Landlord in the event of any fire or
accident at the Demised Premises. Neither Landlord, nor any partner of
Landlord, nor a successor in interest to any of the foregoing, shall be under
any personal liability with respect to any of the provisions of this Lease or
any matter arising out of or in connection with this Lease or the Tenant's
occupancy or use of the Demised Premises, and in the event of any breach or
default with respect to Landlord's obligations under this Lease or any claim
arising out of or in connection with this Lease or the Tenant's occupancy or use
of the Demised Premises, Tenant shall look solely to the equity of such person
or entity in the Demised Premises for the satisfaction of Tenant's remedies and
in no event shall Tenant attempt to secure any personal judgment against
Landlord, or any partner of Landlord, or successors thereto, or any partner,
employee or agent of any of them by reason thereof.
ARTICLE 15
DAMAGE OR DESTRUCTION
---------------------
SECTION15.1 In case of damage to or destruction of any improvements on
-----------
the Demised Premises or any part thereof by fire or otherwise, Tenant shall
promptly give written notice thereof to Landlord, and, except as otherwise
provided in Section 15.2 hereof, Tenant shall restore, repair, replace or
-------------
rebuild the same, which restoration, repairs, replacements and/or rebuildings
shall be made using materials at least equal in quality to the original work,
with such changes or alterations as may be made at Tenant's election with
Landlord's reasonable consent, all in conformity with and subject to the
conditions of Article 9 hereof, except that the surety company bond as referred
---------
to in Section 9.1 hereof shall be in an amount equal to the excess of the
------------
estimated cost of the work over the amount of insurance money. Such
restorations, repairs, replacements, rebuilding or alterations shall be promptly
commenced, but in no event later than six (6) months from the date of occurrence
of such damage or destruction, which time shall be extended by a time
commensurate with any delays due to adjustment of insurance, preparation of
plans and specifications or other delays, and shall thereafter be prosecuted
with reasonable diligence, unavoidable delays excepted. [Tenant expressly
agrees that its obligations hereunder, including the payment of any and all
Rent, shall continue as though said Demised Premises had not been damaged or
destroyed and without abatement, suspension, diminution or reduction of any
kind.]
SECTION15.2 Anything in this Lease to the contrary notwithstanding, if
-----------
at any time during the term hereof, the improvements on the Demised Premises
shall be so damaged by fire or otherwise that the cost of replacement or
restoration thereof shall exceed fifty percent (50%) of the then replacement
value of the improvements so damaged, or if such damage or destruction occurs
during the last one (1) year of the Term and the cost of replacement or
restoration shall exceed the Base Construction Amount, or if any such damage or
destruction would in the reasonable estimation of Tenant's engineer take more
than eighteen (18) months to repair, then in any such event Tenant may elect to
cancel this Lease by giving notice to Landlord within one hundred eighty (180)
days after such damage or destruction, and this Lease shall come to an end on
the date specified in such notice. In the event of any such termination, Tenant
will not be required to perform any restoration. The net insurance proceeds
(after deduction for any costs of collection) shall be paid to Landlord.
SECTION15.3 A. All insurance money paid to Tenant (or, if required
-----------
by the terms of any Fee Mortgage, to the Fee Mortgagee) on account of such
damage or destruction, less the reasonable cost, if any, incurred in connection
with adjustment of the loss and the collection thereof shall, unless this Lease
is terminated as a result of such damage or destruction as provided in Section
-------
15.4, be applied by Tenant, as applicable, to the payment of the cost of the
---
aforesaid restoration, repairs, replacement, rebuilding or alterations,
--
including the cost of temporary repairs or for the protection of property
--
pending the completion of permanent restoration, repairs, replacements,
--
rebuilding or alterations (all of which temporary repairs, protection of
--
property and permanent restoration, repairs, replacement, rebuilding or
--
alterations are hereinafter collectively referred to as the "RESTORATION").
--
B. Notwithstanding anything to the contrary in this Lease, if the terms
of any Fee Mortgage shall require that insurance proceeds be deposited with the
Fee Mortgagee, Tenant shall deposit any moneys received by Tenant from insurance
provided by Tenant with the Fee Mortgagee, pro-vided that the mortgagee is
obligated to release such moneys to Tenant to restore the Demised Premises.
SECTION15.4 If all or substantially all of the improvements on the
-----------
Demised Premises are destroyed by fire or other casualty, Tenant shall have the
right, at its option, either to restore, replace or rebuild the same as provided
in this Lease, or to demolish the remainder of the same and to construct, in
replacement thereof, a new building, subject in all respects to the provisions
of Article 9 hereof, and Tenant shall in connection therewith duly and
----------
faithfully comply with all of such provisions. The surety company bond as
------
referred to in Section 9.5 hereof shall be in an amount equal to the excess of
-- -----------
the estimated cost of the work over the amount of the insurance money. Any
restored or new building shall be at least equal in value to the destroyed or
damaged building.
ARTICLE 16
CONDEMNATION
XXXXXXX00.1 In the event that the Demised Premises or any part thereof
-----------
shall be taken in condemnation or by exercise of any right of eminent domain or
by agreement among Landlord, Tenant and those authorized to exercise such right
(any such matters being hereinafter referred to as a "TAKING"), Landlord,
------
Tenant, any Fee Mortgagee and any other person or entity having an interest in
the award or awards shall have the right to participate in any such condemnation
proceedings or agreement for the purpose of protecting their interests
hereunder. Each party so participating shall pay its own expenses.
XXXXXXX00.2 If at any time during the Term there shall be a taking of
-----------
all or substantially all of the Demised Premises, this Lease shall terminate and
expire on the date of such taking and the Net Rent and any Additional Rent
hereunder shall be apportioned and paid to the date of such taking. For the
purpose of this Article "substantially all of the Demised Premises" shall be
-----------------------------------------
deemed to have been taken if the part not so taken is insufficient for the
economic use and reasonable continued operation thereof by Tenant, in Tenant's
sole and absolute discretion.
XXXXXXX00.3 If this Lease shall terminate as a result of such taking:
-----------
(a) Landlord shall be entitled to an award for (i) the value of its
reversionary interest in the land and existing improvements taken, (ii)
consequential damages for any diminution of Landlord's reversionary interest in
the assemblage or plottage value of the land and existing improvements not so
taken, and (iii) damages for the then present value of any loss of rentals that
would have been payable under this Lease if this Lease had continued in full
force and effect for the remainder of the Term thereof (but excluding any
unexercised renewal options) with respect to the land taken and the improvements
existing thereon (but not any Alterations or betterments made by Tenant or its
subtenants).
(b) Tenant shall be entitled to an award for the loss of the value of its
interest in the leasehold including, without limitation, (a) damages for the
value of all Alterations, improvements and betterments to the Demised Premises,
(b) the loss of Tenant's leasehold interest in the land and all improvements
thereon so taken and damages for the then present value of the loss of rentals
on all rentable space in the Demised Premises for the remainder of the Term
(calculated as if the Lease remained in full force and effect but excluding any
unexercised renewal options); and (c) any costs of removal and relocation from
the Demised Premises.
(c) Any remainder of the award shall be payable to Landlord.
XXXXXXX00.4 If this Lease shall continue after any such taking, this
-----------
Lease shall remain unaffected except as follows:
(a) The Net Rent shall be reduced by an amount which bears the same
proportion to the Net Rent immediately prior to the partial taking as the rental
value of the part of the Demised Premises so taken shall bear to the rental
value of the whole Demised Premises immediately prior to such taking.
(b) Tenant shall, promptly after such taking and at its expense restore the
improvements on the Land, with such changes as Tenant shall deem appropriate,
subject to Landlord's consent, not to be unreasonably withheld or delayed, and
Tenant shall be entitled to reimbursement for the entire cost thereof from the
condemnation proceeds payable by the condemning authority.
XXXXXXX00.5 In the event of the taking of an easement or any other
-----------
taking which shall be of an interest or estate in the land less than a fee
simple (other than a taking for temporary use mentioned in Section 16.6 hereof),
------------
as a result of which the Demised Premises shall be insufficient for the economic
use and reasonable continued operation thereof by Tenant, this Lease shall
terminate and expire with the same force and effect as in the case of a taking
pursuant to Section 16.2 hereof. Otherwise, such taking shall be deemed a taking
------------
insufficient to terminate this Lease, and the division of the award shall be
governed by Section 16.3 in so far as that Section shall be applicable;
-------------
provided, however, that if there shall be any payment or award predicated on a
change in the grade of a street or avenue on which the Demised Premises abut,
Tenant shall be entitled, after making such change or restoration as may be
necessary and appropriate by reason of such change of grade, to reimbursement
for the expense thereof to the extent of the net amount of any payment or award
actually received. Any part of an award for change of grade which shall remain
unexpended after such restoration shall be allocated between Landlord and
Tenant, as their interests may appear. If any award shall include change of
grade and any other item or element of damage, that part thereof shall be
applied in accordance with this Section 16.6 which shall be specifically
-------------
attributed to change of grade by the condemnation court (or condemnation
commissioner or other body authorized to make the award) or, if not so
attributed, shall be determined by agreement between the parties.
XXXXXXX00.6 In the event of a taking of all or a part of the Demised
-----------
Premises for temporary use, this Lease shall continue without change, as between
Landlord and Tenant, and Tenant shall be entitled to the award made for such
temporary use; provided that
(a) such award shall be apportioned between Landlord and Tenant as of
the date of the expiration of the then current or any renewed term or terms of
this Lease, and provided, further, that if any such award shall be in a lump sum
or in installments covering a period of time greater than three months, Tenant
shall be entitled to a sum equal to a maximum of three months' Net Rent and the
balance of such award shall be deposited with Landlord or Fee Mortgagee for
payment to Tenant in equal quarter-annual installments; and
(b) Tenant shall be entitled to file and prosecute any claim against the
condemnor for damages and to recover the same, for any negligent use, waste or
injury to the Demised Premises throughout the balance of the then current term
of this Lease. The amount of damages so recovered shall be paid to Landlord or
its Fee Mortgagee and shall be distributed in the same manner as is provided in
Section 15.2 hereof with respect to proceeds of insurance.
-------------
XXXXXXX00.7 In case of any taking mentioned in this Article 16, the
----------- ----------
entire award shall be paid to Landlord for distribution to the parties entitled
thereto pursuant to the provisions of this Article 16.
-----------
ARTICLE 17
INTENTIONALLY OMITTED
---------------------
ARTICLE 18
ASSIGNMENTS, MORTGAGES AND SUBLEASES OF TENANT'S INTEREST
---------------------------------------------------------
SECTION18.1 Tenant shall not assign, mortgage, pledge, encumber or
-----------
otherwise transfer all or any part of its interest in this Lease or the Demised
Premises except to the extent specifically permitted by this Article 18.
----------
SECTION18.2 A. Tenant may, with Landlord's prior consent, not to be
-----------
unreasonably withheld or delayed, assign all of its interest in this Lease. No
assignment of this Lease shall be effective unless and until an executed
counterpart of such assignment, in recordable form, under which the assignee
shall have assumed this Lease and agreed to perform and observe the covenants
and conditions in this Lease contained on Tenant's part to be performed and
observed on and after the date of such assignment, is delivered to Landlord.
Tenant shall not be released and shall remain liable in the event of any such
assignment unless Landlord specifically agrees to such release. Landlord may
collect Rent directly from any such assignee, provided that Landlord shall apply
the net amount collected to the Rent reserved in this Lease.
SECTION18.3 A. In the event (i) Tenant desires to sublet a portion
-----------
of the Demised Premises, (ii) Tenant desires to assign this Lease, or (iii)
Tenant desires to enter into a sublease the term of which shall extend beyond
the Term of this Lease, then at least thirty (30) days prior to any such
proposed assignment or subletting, Tenant shall submit to Landlord a statement
containing the name and address of the proposed assignee or subtenant and all of
the principal terms and conditions of the proposed assignment or subletting
including but not limited to, the proposed commencement and expiration dates of
the term of the sublease, the nature of the proposed assignee's or subtenant's
business, and such financial and other information with respect to the proposed
assignee or subtenant as Landlord may reasonably request. Landlord shall, within
twenty (20) days of receipt thereof, provide notice to Tenant that Landlord has
granted or withheld its consent to the proposed assignment or subletting, and if
Landlord withholds its consent, the reasons therefor. Landlord shall not
unreasonably withhold or delay its consent, provided that it shall not be deemed
unreasonable for Landlord to withhold its consent to any sublease or assignment
if:
(1) the purposes for which the proposed subtenant or assignee intends
to use the Demised Premises are uses not expressly permitted by this Lease or
are prohibited by this Lease or are not in accordance with all applicable Legal
Requirements;
(2) the proposed sublease or assignment shall not prohibit any further
assignment or subletting;
(3) Tenant shall be in default beyond any cure periods in the performance of
any of its obligations under this Lease either at the time Landlord's consent to
such subletting or assignment is requested or at the commencement of the term of
any proposed sublease or upon the effective date of any such assignment;
(4) the sublease is for a term extending beyond the Expiration Date of this
Lease.
B. If Tenant obtains Landlord's consent to the assignment of this Lease
or the subletting of the Demised Premises, prior to the effective date of such
assignment or subletting, Tenant shall deliver to Landlord: (i) in the case of
an assignment, a duplicate original instrument of the assignment theretofore
approved by Landlord, duly executed by Tenant and assignee, in which the
assignee assumes the observance and performance of, and agrees to be bound by,
all of the terms, covenants and conditions of this Lease on Tenant's part to be
observed and performed, and (ii) in the case of a subletting an executed
duplicate original of the sublease theretofore approved by Landlord. No
assignment or subletting shall be effective unless Tenant and assignee have
complied with the requirements of this Section 18.3(B).
----------------
SECTION18.4 Tenant shall deliver to Landlord, on request, in duplicate,
-----------
within ninety (90) days after the end of each fiscal year, a statement of income
and expenses for such fiscal year, and a rent schedule showing all subleases and
the duration of the respective terms thereof, with respect to the operation of
the Demised Premises, which statement shall be certified by Tenant or an
executive officer of Tenant as being true, correct and complete.
SECTION18.5 A. If an Event of Default on the part of Tenant shall
-----------
occur, effective as of the date of termination of this Lease pursuant to the
last notice provided in Section 19.1 hereof (terminating this Lease twenty (20)
------------
days thereafter), Tenant shall be deemed to have assigned to Landlord all of its
right, title and interest in and to all present and future subleases and all
rents due and to become due thereunder, and shall deliver all security deposits
held thereunder to Landlord. After the effective date of such assignment,
Landlord shall apply any net amount collected by it from sublessees to the Net
Rent or additional rent due under this Lease. No collection of rent by Landlord
from an assignee of this Lease or from a sublessee shall constitute a waiver of
any of the provisions of this Article or an acceptance of the assignee or
sublessee as a tenant or a release of Tenant from performance by Tenant of its
obligations under this Lease. In the event of the failure of any sublessee to
pay rent to Landlord pursuant to the foregoing assignment after the occurrence
of an Event of Default, any such rent thereafter collected by Tenant shall be
deemed to constitute a trust fund for the benefit of Landlord. In the event,
however, that Tenant shall have remedied such Event of Default, such assignment
shall be and deemed to be terminated and Tenant shall be deemed to be reinstated
with all of the rights with respect to said subleases and rents.
B. Tenant shall not directly or indirectly collect or accept any
payment of rent (other than additional rent) under any sublease more than one
(1) month in advance of the date when the same shall become due, and such rent,
in the case of any future sublease, shall be payable monthly, except that in
case of a sublease where the sublessor is required to make tenant changes or
alterations at such sublessor's expense, such sublessor may collect advance rent
for an amount not in excess of one year's rent or the estimated cost of the
work, whichever is less.
ARTICLE 19
CONDITIONAL LIMITATIONS--DEFAULT PROVISIONS
-------------------------------------------
SECTION19.1 If any one or more of the following events ("EVENTS OF
----------- ---------
DEFAULT") shall occur:
--
(a) if default shall be made in the due and punctual payment of any Net
Rent or additional rent payable under this Lease or any part thereof, when and
as the same shall become due and payable, and such default shall continue for a
period of ten (10) days after written notice from Landlord to Tenant specifying
the items in default, provided that upon the second (2nd) default in any twelve
(12) month period, no notice shall be required; or
(b) if default shall be made by Tenant in the performance or compliance with
any of the agreements, terms, covenants or conditions in this Lease (other than
those referred to in Section 19.01(a)) for a period of twenty (20) business days
----------------
after notice from Landlord to Tenant specifying the items in default, or in the
case of a default or a contingency which cannot with due diligence be cured
within said twenty (20) business day period, Tenant fails to proceed within said
twenty (20) business day period to commence to cure the same and thereafter to
prosecute the curing of such default with due diligence; or
(c) subject to the provisions of Section 19.02 hereof, if Tenant shall file
-------------
a voluntary petition in bankruptcy or shall be adjudicated a bankrupt or
insolvent, or shall file any petition or answer seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under the present or any future federal bankruptcy act or any other
present or future federal, state or other bankruptcy or insolvency statute or
law, or shall seek or consent to or acquiesce in the appointment of any
bankruptcy or insolvency trustee, receiver or liquidator of Tenant or of all or
any substantial part of its properties or of the Demised Premises; or
(d) subject to the provisions of Section 19.02 hereof, if a proceeding is
-------------
commenced against Tenant seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the present or
any future federal bankruptcy act or any other present or future federal, state
or other bankruptcy or insolvency statute or law and such proceeding shall not
have been dismissed within ninety (90) days after notice from Landlord to Tenant
of an intention to terminate this Lease for failure to remove the condition in
question or if, within ninety (90) days after the appointment of any trustee,
receiver or liquidator of Tenant or of all or substantially all of its
properties or of the Demised Premises, such appointment shall not have been
vacated or stayed on appeal or otherwise, or if, within ninety (90) days after
the expiration of any such stay, such appointment shall not have been vacated,
within ninety (90) days after notice (to be given not before the expiration of
said ninety (90) days period) from Landlord to Tenant of an intention to
terminate this Lease for failure to remove the condition in question;
Then and in any such event Landlord at any time thereafter may give written
notice to Tenant specifying such Event of Default and stating that this Lease
and the Term hereby demised shall expire and terminate on the date specified in
such notice, which shall be at least ten (10) days after the giving of such
notice (provided that with respect to an Event of Default described in Section
-------
19.1(c) or (d), no such notice need be given), and upon the date specified in
------ ---
such notice (or, if no notice is required, upon the expiration of the time
-
period set forth in Section 19.1(c) or (d)) this Lease and the Term hereby
-
demised and all rights of Tenant under this Lease, including any renewal
-
privileges whether or not exercised, shall expire and terminate, and Tenant
-
shall remain liable as hereinafter provided.
-
SECTION19.2 Upon any such expiration or termination of this Lease,
-----------
Tenant shall quit and peacefully surrender the Demised Premises to Landlord, and
Landlord, at any time after any such expiration or termination, may without
further notice, following appropriate judicial proceedings, enter upon the
Demised Premises and repossess the same, and dispossess Tenant and remove Tenant
and all other persons and property from the Demised Premises and may have, hold
and enjoy the Demised Premises and the right to receive all rental income
therefrom.
SECTION19.3 At any time or from time to time after any such expiration
-----------
or termination, Landlord may relet the Demised Premises or any part thereof for
such term or terms (which may be greater or less than the period which would
otherwise have constituted the balance of the Term of this Lease) and on such
conditions (which may include concessions or free rent and alterations of the
Demised Premises) as Landlord, in its discretion, may determine and may collect
and receive the rents therefor. Landlord shall use commercially reasonable
efforts to relet the Demised Premises.
SECTION19.4 A. No such expiration or termination of this Lease shall
-----------
relieve Tenant of its obligations hereunder, and such obligations shall survive
any such expiration or termination. In the event of any such expiration or
termination, whether or not the Demised Premises or any part thereof shall have
been relet, Tenant shall pay to Landlord the Net Rent and all other charges
required to be paid by Tenant up to the time of such expiration or termination
of this Lease, and thereafter Tenant, until the end of what would have been the
Term of this Lease in the absence of such expiration or termination, shall be
liable to Landlord for, and shall pay to Landlord, as and for liquidated and
agreed current damages for Tenant's default, the equivalent of the amount of the
Net Rent and the other rent and charges which would be payable under this Lease
by Tenant if this Lease were still in effect, less the net proceeds of any
reletting effected pursuant to the provisions of Section 19.4 hereof, after
------------
deducting all Landlord's expenses in connection with such reletting, including,
without limitation, all repossession costs, brokerage commissions attributable
to the period expiring when the Term would have expired, operating expenses and
reasonable attorneys' fees.
B. Tenant shall pay such current damages (herein called the
"DEFICIENCY") to Landlord monthly on the days on which the Net Rent would have
been payable under this Lease if this Lease were still in effect, and Landlord
shall be entitled to recover from Tenant each monthly deficiency as the same
shall arise.
SECTION19.5 Except as is herein otherwise provided Tenant, for and on
-----------
behalf of itself and all-persons claiming through or under Tenant (including any
leasehold mortgagee or other creditor), waives any and all right of redemption,
re-entry or re-possession. The terms "ENTER", "RE-ENTER", "ENTRY" or "RE-ENTRY"
----- -------- ----- --------
as used in this Lease are not restricted to their technical legal meanings.
SECTION19.6 No failure by Landlord or Tenant to insist upon the strict
-----------
performance of any agreement, term, covenant or condition hereof or to exercise
any right or remedy consequent upon a breach thereof, and no acceptance of full
or partial rent during the continuance of any such breach, shall constitute a
waiver of any such breach or of such agreement, term, covenant or condition. No
agreement, term, covenant or condition hereof to be performed or complied with
by either party, and no breach thereof, shall be waived, altered or modified
except by a written instrument executed by the parties. No waiver of any breach
shall affect or alter this Lease, but each and every agreement, term, covenant
and condition hereof shall continue in full force and effect with respect to any
other then existing or subsequent breach thereof.
SECTION19.7 [Intentionally Omitted]
-----------
SECTION19.8 Each right and remedy provided for in this Lease shall be
-----------
cumulative and in addition to every other right or remedy provided for in this
Lease or now or hereafter existing, at law or in equity, and the exercise by
Landlord or Tenant of any one or more of the rights or remedies provided for in
this Lease or now or hereafter existing at law or in equity shall not preclude
the simultaneous or later exercise by the party in question of any or all other
rights or remedies provided for in this Lease or now or hereafter existing at
law or in equity.
SECTION19.9 A. Notwithstanding the provisions of this Lease to the
-----------
contrary, in the event Tenant shall file a petition under Chapter 11 of the
Bankruptcy Code, Tenant's trustee or Tenant, as debtor-in-possession, shall,
unless otherwise ordered by the Bankruptcy Court, elect to assume this Lease at
or prior to the earlier of: (i) 180 days after the date of filing of such
petition, and (ii) confirmation of a plan under Chapter 11. In the absence of an
election to assume within such time period, Tenant's trustee or Tenant, as
debtor-in-possession, shall be deemed to have rejected this Lease. In the event
Tenant, Tenant's trustee or Tenant, as debtor-in-possession, has failed to
perform all of Tenant's obligations under this Lease within the time periods
(subject to the notices and grace periods provided for herein) required for such
performance, no election by Tenant's trustee or Tenant, as debtor-in-possession,
to assume this Lease shall be effective unless each of the following conditions
has been satisfied:
(i) Tenant's trustee or Tenant, as debtor-in-possession, has cured all
defaults under this Lease susceptible of being cured by the payment of money, or
has provided Landlord with Assurance (as defined below) that it will cure all
defaults susceptible of being cured by the payment of money within ten (10) days
from the date of such assumption and that it will, promptly after the date of
such assumption, commence to cure all other defaults under this Lease which are
susceptible of being cured by the performance of any act and will diligently
pursue completion of such curing;
(ii) Tenant's trustee or Tenant, as debtor-in-possession, has compensated,
or has provided Landlord with Assurance that within ten (20) days from the date
of such assumption it will compensate, Landlord for any actual pecuniary losses
incurred by Landlord arising from the default of Tenant, Tenant's trustee or
Tenant, as debtor-in-possession, as indicated in any statement of actual
pecuniary loss sent by Landlord to Tenant's trustee or Tenant, as
debtor-in-possession, such statement, however, not to be deemed a binding and
conclusive determination or computation of the amount of such loss; Tenant's
trustee or Tenant, as debtor-in-possession, has provided Landlord with Assurance
of the future performance of each of the obligations under this Lease of Tenant,
Tenant's trustee or Tenant, as debtor-in-possession; and
(iii) Such assumption will not breach or cause a default under any provision
of any other lease, mortgage, financing agreement or other agreement by which
Landlord is bound relating to the Demised Premises.
B. For purposes of this paragraph, Landlord and Tenant acknowledge that
"Assurance" shall mean either: (x) Tenant's trustee or Tenant, as
debtor-in-possession, has and will continue to have reasonably sufficient
unencumbered assets after the payment of all secured obligations and
administrative expenses to reasonably assure Landlord that sufficient funds will
be available to fulfill the obligations of Tenant under this Lease; or (y)
Tenant's trustee or Tenant, as debtor-in-possession, has deposited with
Landlord, as security, an amount equal to two (2) installments of Rent (at the
rate then payable) which shall be applied to installments of Rent in the inverse
order of their maturity; or (z) the Bankruptcy Court shall have entered an order
granting to Landlord a valid and perfected first lien and security interest in
property of Tenant, Tenant's trustee or Tenant, as debtor-in-possession, having
a fair market value as determined by the Bankruptcy Court appraiser at least
equal to two (2) installments of Rent (at the rate then payable).
C. If Tenant's trustee or Tenant, as debtor-in-possession, has assumed this
Lease pursuant to the terms and provisions of Subparagraph (1) of this Paragraph
(b) for the purpose of assigning (or elects to assign) this Lease, this Lease
may be so assigned only if the proposed assignee has provided adequate assurance
of future performance of all of the terms, covenants and conditions of this
Lease to be performed by Tenant. As used herein "adequate assurance of future
performance" shall mean that each of the following conditions has been
satisfied:
(i) The proposed assignee shall have paid to Landlord an amount equal
to six (6) months of basic annual Rent at the rate then payable;
(ii) The proposed assignee has furnished Landlord with either: a current
financial statement audited or reviewed by a certified public accountant
indicating a net worth and working capital in amounts which Landlord reasonably
determines to be sufficient to assure the future performance by such assignee of
Tenant's obligations under this Lease; or a guarantee or guarantees, in form and
substance reasonably satisfactory to Landlord, from one or more persons with a
net worth equal to or in excess of $3,000,000.00 in the aggregate;
(iii) Landlord has obtained all consents or waivers from others required
under any lease, mortgage, financing arrangement or other agreement by which
Landlord is bound to permit Landlord to consent to such assignment, Landlord to
use its reasonable efforts to obtain such consents or waivers; and The proposed
assignment will not release or impair any guaranty of the obligations of Tenant
(including the proposed assignee) under this Lease.
D. When, pursuant to the Bankruptcy Code, Tenant's trustee or Tenant,
as debtor-in-possession, shall be obligated to pay reasonable use and occupancy
charges for the use of the Demised Premises (as distinguished from Rent under
this Lease while this Lease continues in force and effect), such charges shall
be not less than the Rent payable by Tenant under this Lease.
E. Neither the whole nor any portion of Tenant's interest in this Lease or
its estate in the Demised Premises shall pass to any trustee, receiver, assignee
for the benefit of creditors, or any other person or entity or otherwise by
operation of law under the laws of any state having jurisdiction of the person
or property of Tenant (excluding Section 18.2.B of this Lease) unless Landlord
--------------
shall have consented to such transfer in writing. No acceptance by Landlord of
rent or any other payments from any such trustee, receiver, assignee, or other
person or entity shall be deemed to constitute such consent by Landlord nor
shall it be deemed a waiver of Landlord's right to terminate this Lease and
recover possession of the Demised Premises for any transfer of Tenant's interest
under this Lease without such consent.
ARTICLE 20
SECURITY DEPOSIT
----------------
SECTION20.1 Simultaneously with the execution and delivery of this
-----------
Lease, Tenant shall deposit with Landlord the sum of Nine Thousand One Hundred
and 00/100 ($9,100.00) Dollars as security for the performance and observance by
Tenant of Tenant's covenants and obligations under this Lease. If the security
is deposited in cash, Landlord shall provide notice to Tenant of the institution
where such security is being held and of any transfers of the security.
SECTION20.2 Upon the occurrence of an Event of Default, Landlord may
-----------
use, apply or retain the whole or any part of the security so deposited to the
extent required for the payment of any Rent as to which Tenant is in default or
for any sum which Landlord may expend or may be required to expend by reason of
Tenant's default. In the event Landlord applies or retains any portion or all
of the security delivered hereunder, Tenant shall forthwith restore the amount
so applied or retained so that at all times the amount deposited shall be not
less than the security set forth in Section 20.1.
-------------
SECTION20.3 Provided that no uncured Event of Default exists as of the
-----------
Expiration Date, the security shall be returned to Tenant reasonably promptly
after the date fixed as the end of the Term and after delivery to Landlord of
possession of the Demised Premises. In the event of any sale, transfer or
leasing of Landlord's interest in the Demised Premises, Landlord shall have the
right to transfer the unapplied part of the security and the interest thereon,
if any, to which Tenant is entitled, or any interest it may have in the Security
Letter, as the case may be, to the vendee, transferee or lessee and Landlord
shall thereupon be released by Tenant from all liability for the return or
payment thereof, and Tenant shall look solely to the new landlord for the return
or payment of same. The provisions of the preceding sentence shall apply to
every sale, transfer or leasing of the Demised Premises, and any successor of
Landlord may, upon a sale, transfer, leasing or other cessation of the interest
of such successor in the Improvements, whether in whole or in part, pay over any
unapplied part of said security or any interest it may have in the Security
Letter, as the case may be, to any vendee, transferee or lessee of the
Improvements, and shall thereupon be relieved of any liability with respect
thereto.
ARTICLE 21
CONDITION OF DEMISED PREMISES
-----------------------------
Except as otherwise provided herein, no representations with respect to the
condition or use of the Demised Premises were made by or on behalf of Landlord
prior to or upon the execution of this Lease. Tenant has accepted and is in
possession of the Demised Premises in their AS-IS CONDITION as of the date
hereof. Any improvements existing on the Demised Premises on or prior to the
Commencement Date shall continue to be owned in fee by the Landlord.
ARTICLE 22
NOTICES
-------
Any and all notices, demands, requests, submissions or other communications
or documents required to be given, delivered or served or which may be given,
delivered or served under or by the terms and provisions of this Lease or
pursuant to law or otherwise, shall be in writing and shall be deemed
sufficiently given or rendered if delivered by hand (against an affidavit of
delivery) or by a nationally recognized overnight courier (against a receipt for
delivery) or if sent by registered or certified mail (return receipt requested)
addressed: if to Tenant, at Tenant's address set forth herein, Attn: Xx.
Xxxxxxxx Binder, with a copy to Xxxxxxxx & Xxxx, LLP, 000 Xxxxx Xxxxxx, Xxx
Xxxx, XX 00000, Attn: Xxxxxx X. Xxxxxx, or if to Landlord, at Landlord's address
set forth herein, Attn: Xx. Xxxxxxx Xxxxxxxxxxxx, with a copy to Xxxxxxxxxxx
Xxxxx & Bubba, P.C., 0000 Xxxxxxxxxxx Xxxx, Xxxxxx Xxxxxx, Xxxxxxxxxxxx 00000,
Attn: Xxxx X. Xxxx, Esq., and to any Fee Mortgagee as Landlord may reasonably
designate or to such other address(es) and with such other copies as either
Landlord or Tenant may reasonably designate as its new address(es) or additional
address(es) for such purposes by notice given to the other in accordance with
the provisions of this Article 22. Any such xxxx, statement, consent, notice,
----------
demand, request or other communication shall be deemed to have been rendered or
given (a) on the date it shall have been received, if delivered by hand, on the
next business day after deposit with a reputable overnight delivery courier or
(c) on the fourth (4th) day after mailing as provided above, if delivered by
mail. Each party may have counsel deliver notices to each other with the same
force and effect as if given by the party represented by such counsel.
ARTICLE 23
HOLDOVER
--------
Any holding over for a period after the expiration of the Term hereof shall
be construed to be a tenancy from month-to-month at a rental factor equal to (a)
One Hundred Fifty (150%) percent of the Net Rental due hereunder immediately
prior to the expiration of the Term plus (b) all additional rents, as specified
herein (pro-rated on a monthly basis), and shall otherwise be on the terms and
conditions herein specified, so far as same are applicable. Notwithstanding the
foregoing, and in addition thereto, Landlord's acceptance of the foregoing
payments shall not limit its right to evict Tenant from the Demised Premises as
a holdover.
ARTICLE 24
QUIET ENJOYMENT
---------------
Tenant, upon paying the Net Rent and all additional rent and other charges
herein provided for and observing and keeping all covenants, agreements and
conditions of this Lease on its part to be kept, observed and performed, shall
quietly have and enjoy the Demised Premises during the Term without hindrance or
molestation by anyone claiming by, through or under Landlord, subject to the
exceptions, reservations and conditions of this Lease. In furtherance of the
foregoing, Landlord shall not, during the Term of this Lease, change the zoning
of the Demised Premises, apply for any variances, grant any easements or rights
of way, change the site plan, subdivide to Demised Premises or take any other
similar actions with respect to the Demised Premises, which has the effect of
increasing the costs to Tenant of performing its obligations hereunder or
operating its business therein.
ARTICLE 25
EXCAVATION AND SHORING
----------------------
SECTION25.1 If any excavation shall be made or contemplated to be made
-----------
for building or other purposes upon property or streets adjacent to or nearby
the Demised Premises, Tenant shall either: (i) afford to the person or persons
causing or authorized to cause such excavation the right to enter upon the
Demised Premises for the purpose of doing such work as such person or persons
shall consider to be necessary to preserve any of the walls or structures of the
improvements on the Demised Premises from injury or damage and to support the
same by proper foundations, or (ii) at Tenant's expense, do or cause to be done
all such work as may be necessary to preserve any of the walls or structures of
the improvements on the Demised Premises from injury or damages and to support
the same by proper foundations. Tenant shall not, by reason of any such
excavation or work, have any claim against Landlord for damages or indemnity or
for suspension, diminution, abatement or reduction of rent under this Lease.
SECTION25.2 Landlord hereby assigns to Tenant, without recourse, such
-----------
rights, if any, as Landlord may have against any parties causing damage to the
improvements on the Demised Premises as described in Section 25.1 hereof to xxx
for and recover amounts expended by Tenant as a result of such damage.
ARTICLE 26
NO RENT ABATEMENT
-----------------
SECTION26.1 A. No abatement, diminution or reduction of Net Rent,
-----------
additional rent or charges shall be claimed by or allowed to Tenant or any
person claiming under Tenant, under any circumstances, whether for
inconvenience, discomfort, interruption of business, or otherwise, arising from
the making of alterations, changes, additions, improvements or repairs to any
building or buildings now on or which may hereafter be erected on the Demised
Premises, by virtue or because of any present or future Legal Requirement or for
any other cause or reason.
B. "Abatement Event" shall mean any of the following, provided same
substantially interferes with Tenant's use of the Demised Premises and Tenant as
a result thereof vacates all, or a portion of the Demised Premises because
Tenant can no longer use same for its business purposes: (i) any repair,
maintenance or other work by Landlord done or not done in or about the Demised
Premises; (ii) any default by Landlord under this Lease; or (iii) the presence
of any Hazardous Materials at the Demised Premises not caused by Tenant.
C. If an Abatement Event occurs and continues for five (5) consecutive days,
all base Rent shall xxxxx from the date the Abatement Event first occurred until
its cessation. In the event of an Abatement Event that renders only part of the
Demised Premises unusable, the abatement shall be calculated by multiplying the
base rent and any additional rent by the proportion that the square footage of
the portion of the Demised Premises so affected bears to the square footage of
the entire Demised Premises, provided, however, if the interference is to
Tenant's use of the Demised Premises and is such that the unaffected portion of
the Demised Premises, if any, is not sufficient to allow Tenant to conduct
effectively its business from such portion, the said base rent, additional rent
and any other charges due hereunder shall totally xxxxx until such interference
ceases.
ARTICLE 27
[INTENTIONALLY OMITTED]
ARTICLE 28
ESTOPPEL CERTIFICATES
---------------------
SECTION28.1 Tenant shall, without charge, at any time and from time to
-----------
time, within fifteen (15) days after request by Landlord or any Fee Mortgagee,
certify by commercially reasonable written instrument, duly executed,
acknowledged and delivered to Landlord or Fee Mortgagee, or any other person,
firm or corporation specified by Landlord:
(a) that this Lease is unmodified and in full force and effect, or, if
there have been any modifications, that the same is in full force and effect as
modified and stating the modifications;
(b) whether or not there are then existing any set-offs or defenses against
the enforcement of any of the agreements, terms, covenants or conditions hereof
and any modifications hereof upon the part of Tenant to be performed or complied
with, and, if so, specifying the same;
(c) the dates, if any, to which the Net Rent and additional rent and other
charges hereunder have been paid in advance;
(d) the date of expiration of the current term;
(e) the Net Rent then payable under this Lease; and
(f) such other information as may be reasonably requested.
SECTION28.2 Landlord shall, without charge, at any time and from time to
-----------
time, within fifteen (15) days after request by Tenant certify by commercially
reasonable written instrument, duly executed, acknowledged and delivered to
Tenant or any other person, firm or corporation specified by Tenant:
(a) that this Lease is unmodified and in full force and effect, or, if
there shall have been modifications, that the same is in full force and effect
as modified and stating the modifications;
(b) whether or not there are then existing any set-offs or defenses against
the enforcement of any of the agreements, terms, covenants or conditions hereof
and any modifications hereof upon the part of Tenant to be performed or complied
with, and if so, specifying the same;
(c) the dates, if any, to which the Net Rent and additional rent and other
charges have been paid in advance;
(d) the date of expiration of the current term;
(e) the Net Rent then payable under this Lease; and
(f) such other information as may be reasonably requested.
ARTICLE 29
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT
---------------------------------------------
SECTION29.1 Landlord represents and warrants that, as of the date
-----------
hereof, there are no Fee Mortgages affecting the Demised Premises. Nothing
-
herein contained shall limit Landlord's right to place any mortgage on the
interests of Landlord in the Demised Premises including, without limitation, any
modifications, consolidations, extensions, renewals and replacements thereof.
SECTION29.2 A. This Lease shall be subject and subordinate to each
-----------
and every Fee Mortgage now or hereafter existing from time to time, provided and
upon the condition that Landlord shall obtain from each such Fee Mortgagee a
subordination, non-disturbance and attornment agreement, in the standard form
then-customarily employed by such Fee Mortgagee and otherwise reasonably
acceptable to Tenant (or, if none, a form selected by Landlord which is
reasonably satisfactory to Tenant and such Fee Mortgagee), and Tenant agrees to
execute, acknowledge and deliver same with reasonable promptness.
B. If the holder of any Fee Mortgage, or any designee of any such
holder, shall succeed to the rights of Landlord under this Lease, whether
through possession or foreclosure action or delivery of a new lease or deed,
then at the request of such party so succeeding to Landlord's rights (herein
called "SUCCESSOR LANDLORD"), Tenant shall automatically attorn to and recognize
------------------
such Successor Landlord as Tenant's landlord under this Lease and shall promptly
execute and deliver any commercially reasonable instrument (herein called
"ATTORNMENT AGREEMENT") that such Successor Landlord may reasonably request to
----------------
evidence such attornment. Upon such attornment this Lease shall continue in
full force and effect as a direct lease between the Successor Landlord and
Tenant upon all of the terms, conditions and covenants as are set forth in this
Lease, except that the Successor Landlord shall not (a) be liable for any
previous act or omission of Landlord under this Lease; (b) be subject to any
offset, not expressly provided for in this Lease, which theretofore shall have
accrued to Tenant against Landlord; (c) be bound by any previous modification of
this Lease or by any previous prepayment of more than one month's Rent, unless
such modification or prepayment shall have been expressly approved in writing by
the holder of the Fee Mortgage; or (d) be obligated to make any improvements to,
or perform any work at, or furnish any services to, the Demised Premises.
SECTION29.3 If any act or omission of Landlord would give Tenant the
-----------
right, immediately or after lapse of a period of time, to cancel or terminate
this Lease, or to xxxxx the payment of Rent or to claim a partial or total
eviction, Tenant shall not exercise such right (a) until it has given written
notice of such act or omission to Landlord and each Fee Mortgagee; provided the
name and address of any such Fee Mortgagee shall previously have been furnished
to Tenant, and (b) until ten (10) days shall have elapsed following the giving
of such notice if the same can be remedied within such ten (10) day period or if
the same cannot be remedied within ten (10) days until a reasonable period of
time (but in not event more than sixty (60) days) has elapsed to cure provided
such cure has commenced within the thirty (30) day period, and, further,
provided the Fee Mortgagee shall with due diligence continue to remedy such act
or omission.
ARTICLE 30
WAIVER OF JURY TRIAL AND COUNTERCLAIMS
--------------------------------------
SECTION30.1 Landlord and Tenant hereby waive trial by jury of any and
-----------
all issues arising in any action or proceeding connected with this Lease or any
negotiations in connection therewith. In case Landlord shall commence summary
proceedings or an action for non-payment of rent or additional rent hereunder
against Tenant, Tenant shall not interpose any counterclaim of any nature or
description in any such proceeding or action, but shall be relegated to an
independent action at law.
ARTICLE 31
DEFINITION OF CERTAIN TERMS
---------------------------
SECTION31.1 For purposes of this Lease, unless the context otherwise
-----------
requires:
(a) The term "LANDLORD" as used herein shall mean only the owner for
--------
the time being of the Demised Premises, so that in the event of a sale,
transfer, conveyance or other termination of Landlord's interest in the Demised
Premises Landlord shall be and hereby is entirely freed and relieved of all
liability of Landlord hereunder, arising and accruing under this Lease from and
after the date of such sale transfer conveyance, or other termination of
Landlord's interest in the Demised Premises and in such event Landlord shall
remit to the trustee acting or to act pursuant to Section 5.8 hereof any funds
-----------
held by Landlord (other than any security deposit) in which Tenant has an
interest, but if there shall then be no such trustee Landlord may remit such
funds to the successor owner of the Demised Premises and shall remit to the
successor owner any security deposit or security letter of credit deposited with
Landlord. Landlord shall remain liable for any such moneys not so remitted. It
shall be deemed and construed without further agreement between the parties or
their successors in interest, or between the parties and such successor owner of
the Demised Premises, that such successor owner has assumed and agreed to carry
out any and all agreements, covenants and obligations of Landlord hereunder.
(b) Any reference herein to "THE TERMINATION OF THIS LEASE" shall be deemed
-----------------------------
to include any termination hereof by expiration, or pursuant to Article 15, 16
---------- --
or 19 hereof, or otherwise.
--
(c) The term "FEE MORTGAGE", whether or not used in combination with other
------------
qualifying words, shall include a deed of trust to a trustee to secure an issue
of bonds, debentures, notes or other obligations, and the term "FEE MORTGAGEE",
-------------
when used with reference to a mortgage, shall include the trustee under a deed
of trust and, when appropriate, the holder or holders of the bonds, debentures,
notes or other obligations secured thereby.
(d) The term "UNAVOIDABLE DELAYS" shall mean delays due to strikes, acts of
------------------
God, scarcity of labor or materials, governmental restrictions, enemy action,
civil commotion, fire, casualty or other causes beyond the reasonable control of
Tenant.
ARTICLE 32
BROKERS
-------
Landlord and Tenant each represent and warrant to the other that it has not
dealt with any broker or other person in connection with this Lease. In
executing and delivering this Lease, Landlord and Tenant have each relied upon
the foregoing representation and warranty. Landlord and Tenant shall each
indemnify and hold the other harmless from and against any and all claims for
commissions, fees, reimbursement for expenses or other compensation by reason of
its breach of the foregoing representation and warranty and for any and all
costs incurred by the other in connection with such claims, including, without
limitation, reasonable attorneys' fees and disbursements. This provision shall
survive the expiration or earlier termination of this Lease.
ARTICLE 33
CONSENT OF LANDLORD
-------------------
Where any provision of this Lease requires the consent or approval of
Landlord, except as may be set forth herein to the contrary, Landlord agrees
that Landlord will not unreasonably withhold or delay such consent or approval.
Where any provision of this Lease requires Tenant to do anything to the
satisfaction of Landlord, Landlord agrees that Landlord will not unreasonably
refuse to state Landlord's satisfaction of such action by Tenant.
ARTICLE 34
PAYMENTS UNDER PROTEST
----------------------
In case of any dispute between Landlord and Tenant with respect to the
amount of money payable by Tenant to Landlord under the provisions of this
Lease, Tenant may make payment under protest and, in such event, may assert and
prosecute a claim or claims for the recovery of the sum, or any part thereof,
that shall have been so paid by Tenant under protest.
ARTICLE 35
GOVERNING LAW; NON-RECORDATION
------------------------------
This Lease shall be construed and enforced in accordance with the laws of
the Commonwealth of Pennsylvania, and any action or proceeding hereunder shall
be brought and maintained only within the County of Bucks, Commonwealth of
Pennsylvania. Tenant expressly warrants and represents that it will not record
this Lease. At the request of either party the other party shall execute a
statutory form memorandum, notice of short form of lease which shall be recorded
in the land records of County of Bucks, Commonwealth of Pennsylvania.
ARTICLE 36
NO ORAL MODIFICATION
--------------------
All prior understandings and agreements between the parties are merged with
this Lease which fully and completely sets forth the understanding of the
parties; and this Lease may not be changed or terminated orally or in any manner
other than by an agreement in writing and signed by the party against whom
enforcement of the change or termination is sought.
ARTICLE 37
COVENANTS TO BIND AND BENEFIT RESPECTIVE PARTIES
------------------------------------------------
The covenants and agreements herein contained shall bind and inure to the
benefit of Landlord, its successors and assigns, and Tenant, its successors and
assigns. All references to "Landlord" and "Tenant" shall also include their
respective successors and assigns unless the context shall otherwise require.
ARTICLE 38
CAPTIONS, TABLE OF CONTENTS AND INVALIDITY OF PARTICULAR PROVISIONS
-------------------------------------------------------------------
SECTION38.1 The captions of this Lease are for convenience and reference
-----------
only and in no way define, limit or describe the scope or intent of this Lease
nor in any way affect this Lease.
SECTION38.2 The table of contents preceding this Lease but under the
-----------
same cover is for the purpose of convenience and reference only and is not to be
deemed or construed in any way as part of this Lease, nor as supplemental
thereto or amendatory thereof.
SECTION38.3 If any term or provision of this Lease or the application
-----------
thereof to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such term or
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
ARTICLE 39
CONSTRUCTION OF THIS LEASE
--------------------------
This Lease shall be given a fair and reasonable construction in accordance
with the intentions of the parties hereto, and without regard to or aid of
canons requiring construction against the party drawing this Lease.
[NEXT PAGE SIGNATURE PAGE]
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed by their duly authorized officers and their respective corporate seals
to be hereunto affixed, intending to be legally bound hereby.
RUDY'S THERMO-NUCLEAR DEVICES
By: No Load, Inc., its general partner
ATTEST:
/s/ Xxxxxx Xxxxxxxxxxxx By: /s/ Xxxxxxx Xxxxxxxxxxxx
------------------------- ---------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
---------------------
Title: President
---------
ATTEST: TDL MANUFACTURING, INC.
/s/ Xxxxxx Xxxxxxx By: /s/Xxxxxx Sunshine
-------------------- -------------------
Name: Xxxxxx Sunshine
----------------
Title: CEO
---
ATTEST: TULIP DEVELOPMENT LABORATORY, INC.
-------------------------------------
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx Sunshine
-------------------- ---------------------
Name: Xxxxxx Sunshine
----------------
Title: CEO
---
------
EXHIBIT A
---------
Legal Description
-----------------
EXHIBIT B
---------
Landlord's Storage
------------------
EXHIBIT C
---------
Permitted Encumbrances
----------------------
