PROGRESS PLAZA FUNDAMENTAL LEASE PROVISIONS
PROGRESS
PLAZA
FUNDAMENTAL
LEASE PROVISIONS
Certain
Fundamental Lease Provisions are presented in this Section and represent the
agreement of the parties hereto, subject to further definition and elaboration
in the Lease:
NAME
AND
ADDRESS OF CENTER: PROGRESS PLAZA, 0000 X. Xxxxx Xxxxxx, Xxxxx., XX
00000
LANDLORD:
PROGRSS TRUST, INC.
NOTICE
ADDRESS OF LANDLORD:
Progress
Trust, Inc.
0000
Xxxxx Xxxxx Xxxxxx, Xxxxxx Xxxxx
Xxxxxxxxxxxx,
XX 00000
Attention:
Xxxxxxxx Xxxxxxx
With
a
copy to:
Xxxx
Xxxxxxxx & Associates, Inc.
00
X.
Xxxxxx Xxxx
Xxxx
Xxxxxx, XX 00000
TENANT:
United Bank of Philadelphia
TENANT'S
TRADE NAME: United Bank
NOTICE
ADDRESS OF TENANT:
United
Bank of Philadelphia
Xxxxxx
Building, 00 X. 00xx
Xx.
Xxxxxxxxxxxx,
XX 00000
With
a
copy to:
Love
and
Long, L.L.P.
000
Xxxxxxxxxx Xxxxxx
Xxxxxx,
Xxx Xxxxxx 00000
RENT
COMMENCEMENT DATE: The earlier of (i) sixty (60) days after Landlord notifies
Tenant of the completion of “Landlord’s Work” as defined in this Lease, or (ii)
the date Tenant opens for business to the public.
TERM
OF
LEASE: 10 years, plus the period from the Rent Commencement Date to the last
day
of the calendar month in which it occurs.
OPTION
TERM: Two (2) separate five (5) year options- See Lease Section
3(d)
PREMISES
GROSS LEASABLE AREA: 2,500 square feet +/-
PERMITTED
USE: Full Service Bank and related activities
ANNUAL
BASIC RENTAL:
Period
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Annual
Rent
|
|
Monthly
Rent
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Rent
Commencement
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$
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60,000.00
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|
$
|
5,000.00
|
|
|
Date
to the end of the 12th
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|
|
|
|
|
|
|
Full
calendar month
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Months
13-60
|
|
$
|
62,500.00
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|
$
|
5,208.33
|
|
|
|
|
|
|
|
|
|
Months
61-120
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|
$
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71,250.00
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$
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5,937.50
|
|
Option
Term:
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|
|
See
Lease Section 3 (d
|
)
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|
INITIAL
MONTHLY PAYMENT ON ACCOUNT OF OPERATING EXPENSES:
AND
TAXES: $754.17 (based on $3.62 psf per annum)
ADVANCE
RENTAL: N/A
SECURITY
DEPOSIT: N/A
DATE
OF
LEASE: March _____, 2006
1.
PREMISES
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2
|
2.
USE; QUIET ENJOYMENT
|
2
|
3.
TERM; TERMINATION
|
4
|
4.
RENT
|
5
|
5.
ADVANCE RENTAL
|
5
|
7.
IMPROVEMENTS
|
5
|
8.
TENANT ASSESSMENTS. USE AND OCCUPANCY TAXES.
|
6
|
9.
UTILITIES AND SERVICES
|
6
|
10.
TAXES AND OPERATING COSTS
|
7
|
11. FIXTURES,
EQUIPMENT AND APPURTENANCES
|
11
|
12. ALTERATIONS
AND IMPROVEMENTS BY TENANT
|
11
|
13.
SIGNS AND ADVERTISING
|
12
|
14.
REPAIRS BY LANDLORD; INSPECTION
|
12
|
15.
REPAIRS BY TENANT
|
13
|
16.
INSURANCE
|
14
|
17.
INDEMNITY BY TENANT; EXONERATION
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14
|
18.
INCREASE IN INSURANCE PREMIUMS; WAIVER OF
SUBROGATION
|
15
|
19.
FIRE OR OTHER CASUALTY
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15
|
20.
CONDEMNATION
|
17
|
21.
MARKETING FUND AND PROMOTION OF CENTER
|
17
|
22.
ASSIGNMENT, MORTGAGING AND SUBLETTING
|
17
|
23.
PERFORMANCE BY TENANT
|
18
|
24.
BANKRUPTCY
|
19
|
25.
HAZARDOUS MATERIALS
|
19
|
26.
DEFAULT; REMEDIES
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19
|
27.
REMEDIES CUMULATIVE
|
23
|
28.
SUBORDINATION; ATTORNMENT
|
23
|
29.
SUCCESSORS AND ASSIGNS
|
24
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30.
NOTICES
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24
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31.
APPLICABLE LAW
|
24
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32.
CAPTIONS AND HEADINGS
|
24
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33.
JOINT AND SEVERAL LIABILITY
|
24
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34.
BROKERAGE COMMISSION
|
25
|
35.
NO OPTION
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25
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36.
NO MODIFICATION
|
25
|
37.
SEVERABILITY
|
25
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38.
THIRD PARTY BENEFICIARY
|
25
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39.
TRANSFER BY LANDLORD
|
25
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40.
LIMITATION OF LIABILITY OF LANDLORD
|
26
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41.
PARKING
|
26
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42.
SUBSTITUTE SPACE
|
26
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43.
COVENANTS AND CONDITIONS
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26
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44.
TIME OF ESSENCE
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26
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45.
MODIFICATIONS FOR LENDER
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26
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1
46.
HOLDING OVER
|
27
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47.
RULES AND REGULATIONS
|
27
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48.
TITLE
|
27
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49.
PRIOR LEASE
|
27
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50.
WAIVER OF JURY TRIAL
|
27
|
THIS Retail Lease is made as of the date, and between the Landlord and Tenant, set forth in the Fundamental Lease Provisions attached hereto.
1.
PREMISES
In
consideration of the rents and covenants herein set forth, Landlord hereby
leases to Tenant and Tenant hereby rents from Landlord the premises (“Premises”)
located upon the land and within the buildings (collectively, the "Center")
described in the Fundamental Lease Provisions. The Premises are further depicted
in the drawing attached hereto as Exhibit “A”. The Premises are comprised of the
number of square feet of rentable area set forth in the Fundamental Lease
Provisions. The rentable area of the Premises and the Center has been calculated
and determined on a basis determined by the Landlord. The Landlord's
calculations for the Center and the Premises, and the Expense Percentage are
final and are not subject to adjustment except as provided for in Section 10
below.
2.
USE; QUIET ENJOYMENT
(a)
The
Premises shall be used by Tenant for the purposes, and under the Trade Name
set
forth in the Fundamental Lease Provisions. Tenant shall not use or permit the
Premises to be used for any other purpose or under any other trade name without
the prior written consent of Landlord; provided Tenant shall not use, permit
or
suffer anything to be done in the Premises or anything to be brought into or
kept in the Premises, in either case, which occasions discomfort or annoyance
to
any other tenants or occupants of the Center, or which in Landlord's reasonable
judgment may tend to impair the reputation or appearance of the Center or tend
to interfere with the proper and economic operation of the Center by
Landlord.
(b)
Tenant shall, at its expense, procure any and all governmental licenses and
permits, including without limitation, sign permits, required for the conduct
of
business in the Premises and shall, at all times, comply with the requirements
of each such license and permit. Landlord does not represent or warrant that
it
will obtain for Tenant (or that Tenant will be able to obtain) any license
or
permit.
(c)
Tenant agrees that it shall continuously operate, conduct its business within
and otherwise use the Premises in accordance with the terms and conditions
of
this Lease. Tenant will keep the Premises open for business during such hours
of
operation as are established by Landlord for the Center.
(d)
Tenant agrees that it:
(i)
will
not in connection with the Premises conduct or permit to be conducted any
auction, fire, bankruptcy or going out of business sale, or similar type sale,
or utilize any unethical method of business, provided that this provision shall
not restrict the absolute freedom (as between Landlord and Tenant) of Tenant
to
determine its own selling prices, nor shall it preclude the conduct of periodic,
seasonal promotional or clearance sales;
(ii)
will
not use or permit the use of any apparatus for sound and/or light reproduction
or transmission, including loudspeakers in such manner that the sounds so
transmitted shall be audible beyond the interior of the Premises; will not
distribute at the Center or in any part thereof any handbills or other
advertising or notices, and will not conduct or permit any activities that
might
constitute a nuisance or which are otherwise not generally considered
appropriate in accordance with the standards of operation for the Center
established by landlord.
2
(iii)
will keep all mechanical apparatus free of vibration and noise which may be
transmitted beyond the confines of the Premises; will not cause or permit
strong, unusual or offensive sound, sights, odors fumes, dust or vapors to
emanate from the Premises.
(iv)
will
not load or permit the loading or unloading of merchandise, supplies or other
property, nor ship nor receive outside the area and entrance designated
therefore by Landlord from time to time, and will use its best efforts to have
all such deliveries, loading, unloading and services to the Premises prior
to
9:30 a.m. each day.
(v)
will
not paint or decorate any part of the exterior of the Premises, or change the
architectural treatment, decor or other appearance of the exterior of the
Premises without first obtaining Landlord's written approval of such
work.
(vi)
will
not perform any work of any nature whatsoever to the roof, exterior walls or
any
of the structural portions of the Premises.
(vii)
will comply with all applicable federal, state and local environmental and
other
laws, rules, regulations, guidelines, judgments, or orders and all
recommendations of any public or private agency having authority over insurance
rates with respect to the use or occupancy of the Premises by Tenant; will
not
use or permit the use of any portion of the Premises for any unlawful
purpose.
(viii)
will not, within the vestibule or within three feet of any entrance or exit
or
of any window in the Premises, or upon glass panes, affix or maintain any signs,
trademarks, merchandise or other item, except as shall be approved by
Landlord.
(ix)
will
keep the storefront sign and display windows lighted during all hours in which
the Premises are required to be opened for business.
(x)
will
provide all security within its Premises as it deems appropriate;
(xi)
will
comply with all rules and regulations as may be established by landlord from
time to time.
(xii)
will not use the malls or sidewalks adjacent to the Premises for solicitations,
vending or sales of merchandise.
(xiii)
will maintain at all times a full staff of employees and a complete stock of
merchandise and other goods consistent with the use of the
Premises.
(xiv)
will not, without obtaining Landlord's prior written approval, install any
storage or propane tank, whether above or underground at the Premises or in
the
Center.
(e)
So
long as Tenant is not in default of any covenant or term of this Lease, Tenant
shall have the right to peaceful and quiet enjoyment of the Premises during
the
term hereof subject however to the rights of holders of any mortgages affecting
the Center which appear in the real estate records of the county in which the
Center is located from time to time.
3
3.
TERM; TERMINATION
(a)
The
term
of this Lease shall commence on the date set forth as the Rent Commencement
Date
in the Fundamental Lease Provisions, provided the Premises are "ready for
occupancy" (as that term is defined in Section 7 hereof), but if the Premises
are not ready for occupancy on such date then the term shall commence on the
date which is seven (7) days after the mailing of notice by Landlord to Tenant
that the Premises are "ready for occupancy". The term shall be for the period
set forth in the Fundamental Lease Provisions, plus, if the Rent Commencement
Date shall not be the first day of a month, the part of a month from the date
of
the Rent Commencement Date to the last day of the calendar month in which it
occurs. Each of the parties hereto agrees upon demand of the other, to execute
a
declaration expressing the commencement date of the term as soon as the
commencement date has been determined. If Tenant, or its contractors, are
permitted to take possession prior to the Rent Commencement Date, Tenant shall
comply with all terms and conditions of the Lease other than payment of Basic
Annual Rent, Taxes or Operating Costs.
(b)
This
Lease shall terminate at the end of the original term hereof, or any extension
or renewal thereof without the necessity of any notice from either Landlord
or
Tenant to terminate the same, and Tenant hereby waives notice to vacate the
Premises and agrees that Landlord shall be entitled to the benefit of all
provisions of law respecting the summary recovery of possession of premises
from
a tenant holding over to the same extent as if statutory notice had been given.
For the period of four (4) months prior to the expiration of the term, or any
renewal or extension thereof, and provided that Tenant has not provided Landlord
with notice of Tenant’s intent to exercise its option to renew pursuant to the
terms and conditions below, Landlord shall have the right to show the Premises
and all parts hereof to prospective tenants during normal business
hours.
(c)
At
the expiration or earlier termination of this Lease, Tenant shall, at Tenant's
expense, remove all of Tenant's personal property and repair all injury done
to
the Premises or any part of the Premises by or in connection with the
installation or removal of said property, and surrender the Premises, broom
clean and in as good condition as they were at the beginning of the term,
reasonable wear and tear excepted. All property of Tenant remaining on the
Premises after the expiration or earlier termination of this Lease shall be
conclusively deemed abandoned and at Landlord's option, may be retained by
Landlord, or may be removed by Landlord, and Tenant shall reimburse Landlord
for
the cost of such removal. Landlord may have any such property stored at Tenant's
risk and expense.
(d)
Option to Renew. So
long
as Tenant is not in default of its obligations hereunder, Landlord hereby agrees
that Tenant shall have two (2) separate options to renew the term of this Lease
for a term of five (5) years each, provided that Tenant notifies Landlord of
its
exercise of such option(s) no later than seven (7) months prior to the
expiration date of the then current term. Such renewal shall be on the same
terms and conditions set forth in the Lease, except that Annual Basic Rental
shall be set at the then current rent established by Landlord for the Premises.
Tenant shall execute any renewal form required by Landlord in order to preserve
Landlord's rights and remedies under the lease, as renewed.
Within
thirty (30) days following receipt of Tenant's exercise of its option, Landlord
shall advise Tenant of the Annual Basic Rental which will be charged for the
renewal term. Tenant shall have a period of fifteen (15) days within which
to
notify Landlord, in writing, of its election to revoke its option, in which
event the term of the Lease shall expire as though no option to renew had been
exercised by Tenant. Should Tenant fail to so notify Landlord of its election
to
revoke the exercise of its option, the option shall be effective and the Annual
Basic Rental shall be that set forth in Landlord's notice to
Tenant.
4
4.
RENT
(a)
Tenant covenants and agrees to pay to Landlord, as rental for the Premises,
Annual Basic Rental in the sum set forth in the Fundamental Lease Provisions,
payable in advance in equal monthly installments on the first day of each full
calendar month during the term, the first such payment to include rent, prorated
on a daily basis, for the period (if any) from the date of commencement of
the
term to the first day of the first full calendar month in the term.
(b)
Any
sum, amount, item or charge payable by Tenant hereunder shall be deemed
additional rent, and except as otherwise specifically provided herein, shall
be
paid by Tenant to Landlord on the first day of the month following the date
on
which Landlord notifies Tenant of the amount payable or on the tenth day after
the giving of such notice, whichever shall be later. Any such notice shall
specify in reasonable detail the basis of such additional rent.
(c)
All
rentals payable by Tenant to Landlord under this Lease shall be paid to Landlord
at the office of Landlord herein designated or to such other address and/or
person or company as Landlord may designate from time to time by notice to
Tenant. Tenant will promptly pay all rentals herein prescribed when and as
the
same shall become due and payable. If Landlord shall pay any monies or incur
any
expenses in correction of violations of covenants herein set forth, the amount
so paid or incurred shall, at Landlord's option, and on notice to Tenant, be
considered additional rentals, payable by Tenant with the first installment
of
rent thereafter becoming due and payable, and may be collected or enforced
as by
law provided in respect of rentals.
5.
PERCENTAGE RENT
[This
Section Intentionally Deleted]
6.
ADVANCE RENTAL AND SECURITY DEPOSIT
[This
Section Intentionally Deleted]
7.
IMPROVEMENTS
(a)
Prior
to the Rent Commencement Date, the Landlord shall perform the work in the
Premises (“Landlord’s Work”) specified in Exhibit “B” hereto. Landlord will
provide Tenant with written notice of the completion of Landlord’s Work, and
Tenant shall thereupon enter the Premises and complete all work required for
it
to open its business to the public as quickly as possible, but in any event
not
later than sixty (60) days after completion of Landlord’s Work. Landlord
anticipates that it will complete Landlord’s Work on or before September 1,
2006. With Landlord’s consent, and so long as it will not interfere with the
completion of Landlord’s Work, Tenant’s contractors shall be entitled to work
alongside Landlord’s contractors in the Premises. Except for Landlord’s
obligation to perform Landlord’s Work, Tenant, by accepting possession of the
Premises shall have examined and accepted the Premises in their "as- is"
condition, and no representations or warranties concerning the condition of
the
Premises have been made by Landlord
(b)
Tenant shall have the right, at its sole expense, and in accordance with the
procedures set forth in Section 12, to make non-structural changes,
modifications and improvements to the interior of the Premises, with the written
consent of the Landlord, which consent shall not be unreasonably withheld,
in
order to obtain the consent of Landlord, Tenant shall deliver to Landlord plans
and specifications for any work which it wishes to perform in the Premises.
5
(c)
Any
approval by Landlord or Landlord's architects and/or engineers of any of
Tenant's drawings, plans and specifications which are prepared in connection
with any construction of improvements or alterations in the Premises shall
not
in any way be construed or operate to bind Landlord or to constitute a
representation or warranty of Landlord as to the adequacy or sufficiency of
such
drawings, plans and specifications or the improvements to which they relate,
for
any use, purpose, or condition but such approval shall merely be the consent
of
Landlord as may be required hereunder in connection with Tenant's construction
of improvements in the Premises in accordance with such drawings, plans and
specifications under the terms of this Lease.
8.
TENANT ASSESSMENTS. USE AND OCCUPANCY TAXES.
(a)
Tenant shall pay any and all taxes, assessments, impositions, excises, fees
and
other charges levied, assessed or imposed by governmental or quasi-governmental
authority upon Tenant or its business operation, or based upon the use or
occupancy of the Premises, or upon Tenant's leasehold interest, trade fixtures,
furnishings, equipment, leasehold improvements, alterations, changes and
additions, merchandise and personal property of any kind owned, installed or
used by Tenant in or from the Premises. Tenant shall also pay when due, any
sales or use tax, or other similar tax assessed or levied against this Lease
or
the rent payable hereunder. Should any tax or charge referred to in this
subsection be collected by Landlord on behalf of such taxing authority, then
such tax or charge shall be paid by Tenant to Landlord monthly as additional
rent upon notice from Landlord. If any gross receipts tax shall be payable
by
Landlord, Tenant shall pay the portion thereof attributable to landlord's
receipts from this Lease. Tenant shall pay any tax or charge covered by this
subsection within thirty (30) days after receipt of each xxxx
therefore.
(b) |
Tenant
shall also pay to Landlord, upon invoice, any Use and Occupancy tax
(or
similar tax) based upon Tenant's occupancy of the
Premises.
|
(c) |
Notwithstanding
anything to the contrary contained herein, Tenant shall have the right
to
contest any Use and Occupancy tax (or similar tax) provided that Tenant
complies with the applicable laws and regulations permitting such
contestation.
|
9.
UTILITIES AND SERVICES
(a)
Tenant shall connect to, and become a direct customer of the local utility,
for
any utility services provided to the Premises. Tenant shall pay, on or before
the due date, all charges imposed by such utility.
(b) (i)
At
Landlord's sole option, it may provide any utility service directly to Tenant,
and charge Tenant for the costs of such service at a rate no greater than that
which Tenant would pay if it were a direct customer of such utility. In such
event, such sum shall be due and payable as additional rent
hereunder.
(ii)
Tenant's usage of any utility shall be measured either by separate meter, or,
if
no separate meter is available, by an alternative means determined by Landlord.
The cost of any meter(s) as well as the cost of installation and repair and
replacement of any meter(s) shall be borne by Tenant which shall reimburse
Landlord for the cost thereof within thirty days after receipt of written demand
therefor.
(c)
Landlord reserves the right to stop the supply of water, sewage, electrical
current, parking, and other services, without thereby incurring any liability
to
Tenant, when necessary by reason of accident or emergency, or for repairs,
alterations, replacements or improvements in the judgment of Landlord desirable
or necessary, or when prevented from supplying such services by strikes,
lockouts, difficulty of obtaining materials, accidents or any other cause beyond
Landlord's control, or by laws, orders or inability
6
by
exercise of reasonable diligence to obtain electricity, water, steam, coal,
oil
or other suitable fuel or power. No diminution or abatement of Rent or other
compensation shall or will be claimed by Tenant as a result of, nor shall this
Lease or any of the obligations of Tenant be affected or reduced by reason
of,
any such interruption, curtailment or suspension. However, if such interruption,
curtailment or suspension continues for either three consecutive days or any
ten
days within a thirty-day period, Tenant’s Rent shall xxxxx.
10.
TAXES
AND OPERATING COSTS
(a)
Tenant shall pay, as additional rent hereunder, an amount equal to its Expense
Percentage of Taxes and Operating Costs incurred in connection with the
ownership and operation of the Center.
The
Tenant’s Expense Percentage is determined by dividing the gross rentable area of
the Premises by the gross rentable area of the Center (exclusive of any basement
space or the Office Space as defined below).
The
“Office Space” is the area located on the second floor of the East Building of
the Center. At such time as any of the Office Space is leased, it shall be
included and shall remain in the gross rentable area of the Center, and Tenant’s
Expense Percentage shall be reduced accordingly throughout the term of this
Lease. .
(b)
Taxes
shall include all real estate and other ad valorem taxes and other assessments,
impositions, excises and other governmental or quasi-governmental charges of
every kind and nature (including but not limited to general and special
assessments, sewer and fire district assessments, foreseen as well as
unforeseen) with respect to the Center and all improvements thereon or any
part
thereof. Taxes shall also include Landlord's costs and expenses (including
statutory interest if any) in obtaining or attempting to obtain any refund,
reduction or deferral of Taxes.
(c)
Operating Costs shall refer to all costs and expenses incurred by Landlord
in
connection with the operation, management, maintenance, repair, replacement
and
cleaning of the Center and any signs or other improvements serving or related
to
the Center including, without limitation, the following:
(i)
The
cost of fire, casualty, liability and other insurance carried by
Landlord;
(ii)
The
cost of electricity, steam, fuel, gas, heating, ventilating and
air-conditioning, water and sewer services, but excluding the cost of all such
items (A) which is included in the charges paid by Tenant under this Lease
or
(B) which is separately charged to and paid for by other tenants or occupants
of
the Center;
(iii)
The
cost of all repairs, maintenance, services and replacement of plumbing, heating,
air-conditioning, ventilating, and electrical equipment and systems; the cost
of
all repairs, maintenance and replacements of utility systems; the cost of
repair, maintenance and replacements to the roofs or exteriors; the cost of
repair, maintenance and replacement of lobbies, corridors, rest rooms, stairways
and other common areas; the cost of landscaping, repair, maintenance and
replacement of the paved areas, signs and sidewalks or other common areas;
the
cost of repair, maintenance and replacements required in order to comply with
any federal, state or local law, rule or regulation;
(iv)
The
cost of trash removal, uniforms, paper goods, window cleaning, janitorial
services and snow removal and the cost of all labor, materials, equipment and
supplies;
7
(v)
All
payroll, wages, and salaries of all staff persons and other persons engaged
in
maintenance, repair, replacement and/or operation, including, without limiting
the generality of the foregoing, all state and federal taxes, workmen's
compensation insurance, unemployment taxes, FICA and employee pension and
benefit programs;
(vi)
All
management fees of persons and firms engaged in management, maintenance or
operation;
(vii)
All
costs of providing security (if any, as determined by Landlord);
(viii)
All other costs and expenses of any kind or nature which would be considered
as
costs or expenses of maintenance, operations, management, repair or replacement;
and,
(ix)
Landlord's supervisory charge in an amount equal to fifteen percent (15%) of
the
foregoing costs and expenses.
(d)
Any
capital expenditures included in Operating Costs shall be amortized over the
anticipated life of such improvements as determined by Landlord=s
accountants. Notwithstanding anything herein to the contrary, in calculating
its
Operating Costs, Landlord may utilize reasonable estimates of such costs, with
estimates and payments thereon being subject to adjustments in future xxxxxxxx
to Tenant based upon Landlord's actual costs.
(e) Despite
anything in the definition of Operating Expenses to the contrary, Operating
Expenses will not include:
(i) Any
ground lease rental;
(ii)
Costs
of
items considered capital repairs, replacements, improvements and equipment
under
generally accepted accounting principles (“Capital Items”) except as provided in
subsection (d) above;
(iii) Rentals
for items (except when needed in connection with normal repairs and maintenance
of permanent systems) which if purchased, rather than rented, would constitute
a
Capital Item that is specifically excluded in (ii) Center;
(iv) Costs
incurred by Landlord for the repair of damage to the Center, to the extent
that
Landlord is reimbursed by insurance proceeds, and costs of all capital repairs,
regardless of whether such repairs are covered by insurance;
(v) Costs,
including permit, license and inspection costs, incurred with respect to the
installation of tenant or other occupants’ improvements in the Center or
incurred in renovating or otherwise improving, decorating, painting or
redecorating vacant space for tenants or other occupants of the
Center;
(vi) Depreciation,
amortization and interest payments, except on materials, tools, supplies and
vendor-type equipment purchased by Landlord to enable Landlord to supply
services Landlord might otherwise contract for with a third party where such
depreciation, amortization and interest payments would otherwise have been
included in the charge for such third party’s services, all as determined in
accordance with generally accepted accounting principles, consistently applied,
and when depreciation or amortization is permitted or required, the item will
be
amortized over its reasonably anticipated useful life;
(vii) Marketing
costs, including without limitation, leasing commissions, attorneys’ fees in
connection with the negotiation and preparation of letters, deal memos, letters
of intent, leases, subleases or assignments, space planning costs, and other
costs and expenses incurred in connection with lease, sublease or assignment
negotiations, and transactions with present or prospective tenants or other
occupants of the Center;
(viii) Expenses
in connection with services or other benefits that are not offered to Tenant
or
for which Tenant is charged for directly but that are provided to another tenant
or occupant of the Center at a lesser cost;
8
(ix) Costs
incurred by Landlord due to the violation by Landlord or any tenant of the
terms
and conditions of any lease of space in the Center;
(x) Overhead
and profit increment paid to Landlord or to subsidiaries or affiliates of
Landlord for goods and services in or to the Center to the extent the same
exceeds the costs of such goods and services rendered by unaffiliated third
parties on a competitive basis;
(xi) Interest,
principal, points and fees on debts or amortization on any mortgage or mortgages
or any other debt instrument encumbering the Center or the site (except as
permitted in (ii));
(xii) Landlord’s
general corporate overhead and general and administrative expenses;
(xiii) Advertising
and promotional expenditures, and costs of signs in or on the Center identifying
the owner of the Center or other tenants’ signs;
(xiv) Costs
incurred in connection with upgrading the Center to comply with life, fire
and
safety codes, ordinances, statutes or other laws in effect prior to the
Commencement Date including, without limitation, the ADA, including penalties
or
damages incurred due to non-compliance;
(xv) Tax
penalties incurred as a result of Landlord’s negligence, inability or
unwillingness to make payments or to file any tax or informational returns
when
due;
(xvi) Costs
for
which Landlord has been compensated by a management fee, and any management
fees
in excess of those management fees that are normally and customarily charged
by
landlords of comparable buildings;
(xvii) Costs
arising from the negligence or fault of other tenants or Landlord or its agents,
or any vendors, contractors, or providers of materials or services selected,
hired or engaged by Landlord or its agents including, without limitation, the
selection of Center materials;
(xviii)
Despite
any contrary provision of the Lease including without limitation, any provision
relating to capital expenditures, any and all costs arising from the presence
of
hazardous materials or substances (as defined by applicable laws in effect
on
the date this Lease is executed) in or about the Premises or the Center
including, without limitation, hazardous substances or the ground water or
soil,
not placed in the Premises or the Center by Tenant;
(xix)
Costs arising from Landlord’s charitable or political
contributions;
(xx) Costs
arising from latent defects in the base, shell or core of the Center or
improvements installed by Landlord or repair to them;
(xxi) Costs
for
sculpture, paintings or other objects of art;
(xxii) Costs
(including all attorneys’ fees and costs of settlement judgments and payments)
arising from claims, disputes or potential disputes in connection with potential
or actual claims litigation or arbitrations pertaining to Landlord or the
Center;
(xxiii) Costs
associated with the operation of the business of the partnership or entity
that
constitutes Landlord as the same are distinguished from the costs of operation
of the Center, including partnership accounting and legal matters, costs of
defending any lawsuits with any mortgagee (except as the actions of Tenant
may
be in issue), costs of selling, syndicating, financing, mortgaging or
hypothecating any of Landlord’s interest in the Center, costs of any disputes
between Landlord and its employee (if any) not engaged in Center operation,
disputes of Landlord with Center management, or outside fees paid in connection
with disputes with other tenants;
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(xxiv) Cost
of
any “tap fees” or any sewer or water connection fees for the benefit of any
particular tenant in the Center;
(xxv) Costs
incurred in connection with any environmental clean-up, response action, or
remediation on, in, under or about the Premises or the Center including, but
not
limited to, costs and expenses associated with the defense, administration,
settlement, monitoring or management of them;
(xxvi) Any
entertainment, dining or travel expenses for any purpose;
(xxvii) Any
flowers, balloons, or other gifts provided to any entity including, but not
limited to, Tenant, other tenants, employees, vendors, contractors, prospective
tenants and agents;
(xxviii) Any
“above-standard” cleaning including, but not limited to, construction cleanup or
special cleanings associated with parties or events and specific tenant
requirements in excess of service provided to Tenant, including related trash
collection, removal, hauling and dumping;
(xxix) The
cost
of any magazine, newspaper, trade or other subscriptions;
(xxx) The
cost
of any training or incentive programs, other than for tenant life safety
information services;
(xxxi) The
cost
of any “tenant relations” parties, events or promotion not consented to by an
authorized representative of Tenant in writing;
(xxxii) “In-house”
legal and accounting fees; and
(e) Operating
Expenses will be reduced by all cash discounts, trade discounts, or quantity
discounts received by Landlord or Landlord’s managing agent in the purchase of
any goods, utilities, or services in connection with the operation of the
Center
(f) If
any
facilities, services or utilities used in connection with the Center are
provided from another building owned or operated by Landlord or vice versa,
the
costs incurred by Landlord in connection with them will be allocated to
Operating Expenses by Landlord on an equitable basis.
(g) In
determining Operating Costs for any year, if less than one hundred percent
(100%) of the Center=s
rentable area shall have been occupied by tenants at any time during such year,
Operating Costs shall be deemed for such year to be an amount equal to the
like
expenses which Landlord reasonably determines would normally be incurred had
such occupancy been one hundred percent (100%) throughout such
year.
(h)
Payments on account of Tenant's share of Taxes and Operating Costs shall be
paid
by Tenant in equal monthly (or other periodic) installments in advance in such
amounts as are estimated and billed by Landlord based upon the total Taxes
and
Operating Costs estimated to be payable in each year. Landlord may revise its
estimates and may adjust such monthly payment at the end of any calendar month.
The first (1st) such installment shall be due and payable on the Rent
Commencement Date (prorated for the remaining number of days in the calendar
year) and subsequent installments shall thereafter be due and payable at the
beginning of each ensuing calendar month during the term.
(i)
Within one hundred twenty (120) days, or a reasonable time thereafter, following
the end of each calendar year in the term hereof, Landlord shall deliver to
Tenant a statement of all Taxes and Operating Costs paid or payable by Landlord
for such year. If the total of Tenant's monthly remittances is less than or
greater than the Tenant's share of Taxes and Operating Costs for the preceding
calendar year, the amount of any excess shall be credited to Tenant's next
payments due on account of Taxes and Operating Costs. The amount of any
deficiency shall be paid by Tenant to Landlord within thirty (30) days of the
mailing of the statement.
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(j)
If
the term of this Lease shall commence or terminate during any calendar year,
Tenant shall be liable only for that portion of Taxes and Operating Costs for
such year represented by a fraction, the numerator of which is the number of
days of the term which fall within the said year and the denominator of which
is
Three Hundred Sixty Five (365).
11. FIXTURES,
EQUIPMENT AND APPURTENANCES
All
fixtures, equipment, improvements and appurtenances attached to or built into
the Premises prior to or during the term of this Lease, whether by Landlord
at
its expense or at the expense of Tenant or by Tenant, shall be and remain part
of the Premises and shall not be removed by Tenant at the end of the term unless
otherwise expressly provided in this Lease. All electrical, telephone,
communication, radio, plumbing, heating and sprinkling systems, fixtures and
outlets, vaults, paneling, molding, shelving, ventilating, silencing,
air-conditioning and cooling equipment, shall be deemed to be included in such
fixtures, equipment and improvements and appurtenances, whether or not attached
to or built into the Premises. Where not built into the Premises, and if
furnished and installed by and at the sole expense of Tenant, all removable
electrical fixtures, carpets, drinking or tap water facilities, furniture,
or
trade fixtures or business equipment shall not be deemed to be included in
such
fixtures, equipment, improvements and appurtenances and may be, and upon the
request of Landlord shall be, removed by Tenant upon the condition that such
removal shall not materially damage the Premises or the Center and that the
cost
of repairing any damage to the Premises or the Center arising from such removal
shall be paid by Tenant; provided, however, that any of such items for which
Landlord shall have granted any allowance or credit to Tenant, shall be deemed
not to have been furnished and installed in the Premises by or at the sole
expense of Tenant. If this Lease shall be terminated by reason of Tenant's
breach or default, then notwithstanding anything to the contrary in this Lease
contained, Landlord shall have a lien against all Tenant's property in the
Premises at the time of such termination to secure Landlord's rights under
Section 26 hereof. Notwithstanding anything to the contrary contained herein,
if
there
is then no Event of Default, Tenant may remove from the Premises any trade
fixtures, equipment, and movable furniture placed in the Premises by Tenant,
whether or not the trade fixtures or equipment are fastened to the Premises.
Tenant will not remove any trade fixtures or equipment without Landlord's prior
written consent if the trade fixtures or equipment are used in the operation
of
the Center or if the removal of the fixtures or equipment will impair the
structure of the Center. Whether or not there is then an Event of Default,
Tenant will remove the alterations, additions, improvements, trade fixtures,
equipment, and furniture as Landlord has requested in accordance with Section
12
below. Tenant will fully repair any damage occasioned by the removal of any
trade fixtures, equipment, furniture, alterations, additions, and improvements.
All trade fixtures, equipment, furniture, alterations, additions, improvements
and other personal property not removed will conclusively be deemed to have
been
abandoned by Tenant and may be appropriated, sold, stored, destroyed, or
otherwise disposed of by Landlord without notice to Tenant or to any other
person and without obligation to account for them. Tenant will pay Landlord
all
expenses incurred in connection with Landlord's disposition of such property,
including without limitation the cost of repairing any damage to the Center
or
the Premises caused by removal of such property, and will hold Landlord harmless
from loss, liability, or expense arising from the claims of third parties such
as lenders whose loans are secured by such property.
11
12. ALTERATIONS
AND IMPROVEMENTS BY TENANT
(a)
Tenant shall make no alterations, decorations, installations, removals,
additions or improvements in or to the Premises after the commencement of the
term without Landlord's prior written consent which consent shall not be
unreasonably withheld and then only by contractors or mechanics approved by
Landlord. Any contractors selected by Tenant shall be required to work in
harmony with Landlord’s contractors and sub-contractors. No installation or work
shall be undertaken or begun by Tenant until Landlord has approved written
plans
and specifications therefor; and no amendments or additions to such plans and
specifications shall be made without the prior written consent of Landlord.
Any
such work, alterations or decorations, installations, removals, additions and
improvements shall be done at Tenant's sole expense and at such time and in
such
manner as Landlord may from time to time designate. If Tenant shall make any
alterations, decorations, installations, or removals, additions or improvements,
then Landlord may elect to require Tenant at the expiration of this Lease to
restore the Premises to substantially the same condition as existed at the
commencement of the term hereof.
(b)
Any
approval by Landlord or Landlord's architects and/or engineers of any of
Tenant's drawings, plans and specifications which are prepared in connection
with any improvements or alterations in the Premises shall not in any way be
construed or operate to bind Landlord or to constitute a representation or
warranty of Landlord as to the adequacy or sufficiency of such drawings, plans
and specifications or the improvements to which they relate, for any use,
purpose, or condition but such approval shall merely be the consent of Landlord
as may be required hereunder in connection with Tenant's construction of
improvements in the Premises in accordance with such drawings, plans and
specifications under the terms of this Lease.
(c)
Prior
to any work being performed by Tenant pursuant to this Section 12, Tenant shall
cause all contractors and subcontractors performing such work to file a waiver
of mechanics' liens in the appropriate filing office for the county in which
the
Center is located.
(d)
In
the event any lien shall at any time be filed against the Premises or against
any part of the Center by reason of work, labor, or services performed or
alleged to have been performed, or materials furnished or alleged to have been
furnished by for or to Tenant or to anyone holding the Premises through or
under
Tenant, Tenant shall forthwith cause the same to be discharged of record or
bonded to the satisfaction of Landlord. If Tenant shall fail to cause such
lien
forthwith to be so discharged or bonded after being notified of the filing
thereof, then, in addition to any other right or remedy of Landlord, Landlord
may discharge the same by paying the amount claimed to be due, and the amount
so
paid by Landlord and all costs and expenses, including reasonable attorney's
fees incurred by Landlord in procuring the discharge of such lien, shall be
due
and payable by Tenant to Landlord as additional rent on the first day of the
next following month.
13.
SIGNS AND ADVERTISING
Tenant
will not place or suffer to be placed or maintained on the exterior of the
Premises or the Center any sign, advertising matter or other thing of any kind,
and will not place or maintain any decoration, lettering or advertising matter
on any door or window of the Premises without first obtaining Landlord's written
approval thereof which approval shall not be unreasonably withheld. Tenant
further agrees to maintain such sign, decoration, lettering, advertising matter
or other thing as may be approved in good condition and repair at all times.
Tenant shall have the right to a sign on the Center pylon in space equal to
that
provided to other tenants other than Major Tenants (defined as tenants whose
leased premises consists of 15,000 or more square feet).
12
14.
REPAIRS BY LANDLORD; INSPECTION
(a)
Landlord shall (i) keep the structure and exterior of the buildings located
in
the Center, as well as the plumbing, electrical, heating, ventilating and air
-conditioning systems and the service lines furnished by Landlord to the common
areas of the Center in serviceable condition and repair; (ii) keep the common
areas of the Center and all other means of ingress and egress for the Premises
and all public portions of the Center in serviceable condition and repair and
in
a reasonably clean and safe condition: (iii) comply with the applicable
governmental rules, regulations, laws and ordinances affecting the Center (other
than the individual premises leased by tenants of the Center), and (iv)
maintain, clean and plow the roads, sidewalks and parking areas located on
the
Center. Landlord reserves the right to interrupt, curtail, stop and suspend
the
furnishing of any parking services and the operation of the plumbing,
electrical, heating, ventilating and air-conditioning systems when necessary
by
reason of accident or emergency or for repairs, alterations, replacements or
improvements which may become necessary or when it cannot secure supplies or
labor, or by reason of any other cause beyond its control, without liability
therefor or any abatement of rent being due thereby. The obligations of Landlord
contained in this Section 14 (a) shall be performed at the expense of Landlord
(subject to reimbursement by tenants as provided elsewhere in this Lease),
except to the extent that any such obligation arises from the negligence or
wrongful act or failure to act of Tenant, its officers, agents, employees,
contractors or sub-contractors, or from any act or failure to act of Tenant,
which is contrary to the terms and provisions of this Lease, in either of which
case, Tenant shall bear the expense of the performance of such obligation by
Landlord.
(b)
Landlord, its agents, employees and contractors shall have the right to enter
the Premises at all reasonable times for the purpose of making inspections
or to
install, maintain, repair or replace electrical, mechanical, plumbing, heating,
ventilating and air-conditioning equipment and installations serving the common
areas of the Center. Except in case of emergency, Landlord agrees that, to
the
extent reasonably possible, such inspections, installations, maintenance,
repairs or replacements shall be made at such times in such a manner as not
to
unreasonably disrupt Tenant's normal business operations.
15.
REPAIRS BY TENANT
(a)
Tenant shall be responsible for all repairs or replacements required to be
made
to the Premises, including without limitation, HVAC, other utility systems
and
sprinklers, except and solely to the extent such repairs or replacements are
expressly made Landlord's responsibility pursuant to either Section 14 above,
or
Section 19 below. Without limiting the foregoing Tenant shall keep the Premises
clean and neat and in good order, making all necessary replacements and/or
repairs and will surrender the Premises in as good condition as when received,
excepting depreciation caused by damage by fire, unavoidable accident or act
of
God. Tenant will keep the inside and outside of all glass in the doors and
windows of the Premises clean and will replace any cracked or broken glass
with
glass of the same kind, size and quality, will maintain the Premises at its
own
expense in a sanitary condition and free of insects, rodents, vermin and other
pests; will not burn or permit undue accumulation of garbage, trash or refuse
and will remove the same from the Premises to compactors or other receptacles,
and will keep such refuse in proper containers in the interior of the Premises
until removed at Tenant=s
sole
cost and expense. Tenant shall not overload the electrical wiring within the
Premises or serving the Premises and will install, at its own expense, but
only
after obtaining Landlord's written approval, any additional electrical wiring
which may be required in connection with Tenant's apparatus.
(b)
Tenant shall not place a load upon the floor of the Premises exceeding the
floor
load per square foot which such floor was designed to carry and which is allowed
by law. Machines, fixtures and mechanical equipment shall be placed and
maintained by Tenant at Tenant's expense in settings sufficient to absorb and
prevent vibration, noise and annoyance. Any moving of such equipment shall
be at
the sole risk and hazard of Tenant and Tenant will indemnify and save Landlord
harmless against and from any liability, loss, injury, claim or suit resulting
directly or indirectly from such moving.
13
(c)
Tenant will maintain, repair and if necessary replace any HVAC unit solely
serving the Premises. Tenant shall also maintain at all times a preventive
maintenance contract for such unit at Tenant's sole expense.
16.
INSURANCE
Tenant
will keep in force at its expense as long as this Lease remains in effect and
during such other time as Tenant occupies the Premises or any part thereof
comprehensive general liability insurance including broad form endorsement,
with
respect to the Premises with a $1,000,000.00 combined single limit; and "all
risk" insurance on Tenant's personal property, including trade fixtures, floor
coverings, furniture, stock in trade, and other property removable by Tenant.
Tenant will further deposit the policy or policies of such insurance or
certificates thereof with Landlord, which policies shall name Landlord. its
managing agent, lender and/or its or their designee(s) as additional named
insured, and shall also contain a provision stating that such policy or policies
shall not be canceled except after ten (10) days' written notice to Landlord.
All such insurance shall be in companies and in form acceptable to Landlord.
If
the nature of Tenant's business is such as to place all or any of its employees
under the coverage of local workmen's compensation or similar statutes, Tenant
shall also keep in force, at its expense, so long as this Lease remains in
effect and during such other times as Tenant occupies the Premises or any part
thereof, workmen's compensation or similar insurance affording statutory
coverage and containing statutory limits. If Tenant shall not comply with its
covenants made in this Section 16, Landlord may cause insurance as aforesaid
to
be issued, and in such event Tenant agrees to pay, as additional rent, the
premium for such insurance upon Landlord's demand.
17.
INDEMNITY BY LANDLORD AND TENANT; EXONERATION
(a)
Tenant will indemnify Landlord and save Landlord harmless from and against
any
and all claims, actions, damages, liability and expense, including attorney's
fees and other professional fees connection with loss of life, personal injury
and/or damage to property arising from or out of the occupancy or use by Tenant
of the Premises or any part thereof or any other part of the Center occasioned
wholly or in part by any act or omission of Tenant, its officers, employees,
agents or contractors.
(b)
To
the maximum extent permitted by law, Tenant agrees to use and occupy the
Premises and such other portions of the Center as Tenant is permitted to use
at
Tenant's own risk; and Landlord shall have no responsibility for any injury
to
persons, or loss of or damage to property, sustained or occurring in or on
the
Premises, or occurring elsewhere (other than in the Premises) in or about the
Center; and in particular, not limiting the generality of the foregoing,
Landlord shall have no responsibility for injury to persons for loss of, or
damage to, property sustained or occurring on or about the stairways, public
corridors, sidewalks, parking areas, roads or other appurtenances and facilities
used in connection with the Center or the Premises arising out of the use or
occupancy of the Center or the Premises by Tenant, or by any person claiming
by,
through or under Tenant, on account or based upon the act, omission, fault,
negligence or misconduct of any person or persons other than Landlord and those
for whose conduct Landlord is legally responsible.
(c)
Landlord shall not be liable for any injury or damage to persons or property
resulting from fire, explosion, falling plaster, steam, gas, electricity,
electrical disturbance, water, rain or snow or leaks from any part of the Center
or from the pipes, appliances or plumbing works or from the roof, street or
subsurface or from any other place or caused by dampness or by any other cause
of whatever nature, unless caused by or due to the negligence of Landlord,
its
officers, employees, agents or contractors, and then only after (i) notice
to
Landlord of the conditions claimed to constitute negligence and (ii) the
expiration of a reasonable time after such notice has been received by Landlord
without such conditions having been cured or corrected, and in no event shall
Landlord or its agent be liable for any such damage caused by other tenants
or
persons in the Center or caused by operations in construc-tion of any private,
public or quasi-public work; nor shall Landlord be liable for any latent defect
in the Premises or in the Center.
14
(d)
It is
the intention of the parties that the provisions of this Section 17 shall
require Tenant to indemnify and hold Landlord harmless with regard to acts,
including negligence of Tenant, which result in harm to any employee of Tenant.
This provision shall be deemed to fulfil the requirements requiring or
permitting contribution or indemnity as set forth in Section 481 (b) of the
Pennsylvania Xxxxxxx'x Compensation Act, or any successor statute.
(e)
Landlord
will indemnify Tenant, its officers, directors, members, shareholders, partners,
lenders, agents, and employees against, and hold them harmless from, any and
all
demands, claims, causes of action, fines, penalties, damages (including without
limitation consequential damages), losses, liabilities, judgments, and expenses
(including without limitation attorneys’ fees and court costs) arising in the
Common Areas.
18.
INCREASE IN INSURANCE PREMIUMS; WAIVER OF SUBROGATION
(a)
Tenant will not do or suffer to be done or keep or suffer to be kept, anything
in, upon or about the Premises which will contravene Landlord's policies
insuring against loss or damage by fire or other hazards (including, without
limitation, public liability) or which will prevent Landlord from procuring
such
policies in companies acceptable to Landlord. If anything done, omitted to
be
done or suffered by Tenant to be kept, in, upon or about the Premises shall
cause the rate of fire or other insurance on the Premises or on other property
of Landlord or of others in the Center to be increased beyond the minimum rate
from time to time applicable to the Premises, or to any such property for the
use or uses made thereof, Tenant shall pay, as additional rent, the amount
of
any such increase upon Landlord's demand.
(b)
Landlord shall cause each insurance policy carried by it insuring the Center
against loss by fire or any of the casualties covered by standard extended
coverage to be written in such a manner as to provide that the insurer waives
all right of recovery by way of subrogation against Tenant in connection with
any loss or damage covered by the policy. Tenant will cause each insurance
policy carried by it insuring the Premises as well as the contents thereof,
including trade fixtures and personal property, against loss by fire or any
of
the casualties covered by standard extended coverage to be written in such
a
manner as to provide that the insurer waives all right of recovery by way of
subrogation against Landlord in connection with any loss or damage covered
by
the policy. Neither party hereto shall be liable to the other for any loss
or
damage caused by fire or any of the casualties covered by standard extended
coverage, which loss or damage is covered by the insurance policies maintained
by the other party, provided that such policies are not invalidated by such
waiver; and, provided, further, that if either party shall be unable to obtain
the waiver of subrogation required by this Section without additional premiums
therefor, then unless the party claiming the benefit of such waiver shall agree
to pay such party for the cost of such additional premium within thirty (30)
days after notice of the statement setting forth such requirement and the amount
of additional premium, such waiver shall be of no force and effect between
such
party and the claiming party. It is agreed that should either party fail to
procure such waiver, if available without additional cost (or if available
at
additional cost and the other party has agreed to pay such additional premium),
it will pay to the other in liquidated damages all monies to which any subrogor
hereunder becomes entitled and the cost of reasonable legal defense of any
claims for subrogating.
15
19.
FIRE OR OTHER CASUALTY
(a)
If
the Premises or any part thereof shall be damaged by fire or other casualty
insured by Landlord and Tenant shall have given prompt written notice thereof
to
Landlord, Landlord shall (subject to the subsections 19 (b) or (c) hereof)
proceed with reasonable diligence to repair or cause to be repaired such damage
(but in no event shall Landlord be obligated to expend an amount in excess
of
the net proceeds of insurance made available) and if the Premises, or any part
thereof, shall be rendered untenantable by reason of such damage, and such
damage shall not be due to the fault of Tenant, its agents, contractors,
employees, guests, invitees or licensees, the Annual Basic Rental, or an amount
thereof apportioned according to the number of square feet of floor space of
the
Premises so rendered untenantable (if less than the entire Premises shall be
so
rendered untenantable), shall be abated for the period from the date of such
damage to the date when the damage shall have been repaired as aforesaid;
provided, however, that if Landlord shall make available to Tenant during the
period of repair, other space in the Center reasonably suitable for the
temporary carrying on of Tenant's business, there shall be no such abatement
of
Annual Basic Rental. If Landlord or any mortgagee of the Center shall be unable
to collect the insurance proceeds (including rent insurance proceeds) applicable
to such damage because of some action or inaction on the part of Tenant, or
the
agents, contractors, employees, guests, invitees or licensees of Tenant, the
cost of repairing such damage shall be paid by Tenant and there shall be no
abatement of rent.
(b)
Landlord shall not be liable for any inconvenience or annoyance to Tenant or
injury to the business of Tenant resulting in any way from damage from fire
or
other casualty or the repair thereof. Tenant understands that Landlord will
not
carry insurance of any kind on Tenant's improvements, alterations, stock in
trade, furniture or furnishings or on any fixtures or equipment removable by
Tenant under the provisions of this Lease, and that Landlord shall not be
obligated to repair any damage thereto or replace the same.
(c)
Notwithstanding subparagraphs (a) and (b) of this Section 19, if:
(i)
the
Center shall be so damaged by such fire or other casualty that substantial
alteration or reconstruction of the Center shall, in Landlord's opinion, be
required (whether or not the Premises shall have been damaged by such fire
or
other casualty), or
(ii)
the
Premises are totally or substantially damaged or rendered wholly or
substantially untenantable, or
(iii)
the
Premises shall be damaged in whole or in part by such fire or other casualty
during the last one year of the term or any extension thereof which has been
exercised prior to the date of such casualty, or
(iv)
the
proceeds of insurance made available to Landlord are insufficient to pay for
the
costs of repairing the damage, and Landlord elects not to repair such damage,
then
and
in any such event, Landlord may, at its option, by giving written notice to
Tenant within forty-five (45) days after the date of such damage, terminate
this
Lease and Tenant's estate hereunder, as of the date of such termination
specified in such notice. The effect of such termination shall be the same
as if
the date specified in the notice were the date hereinbefore set for the end
of
the Term and the Annual Basic Rental and additional rental hereunder shall
be
apportioned as of such date.
(d)
Notwithstanding anything contained herein to the contrary the
Rent
will be abated proportionately during any period in which, by reason of any
damage or destruction not occasioned by the negligence or willful misconduct
of
Tenant or Tenant's employees or invitees, there is a substantial interference
with the operation of the business of Tenant. The abatement will be proportional
to the area of the Premises that Tenant may be required to discontinue for
the
conduct of its business. The abatement will continue for the period commencing
with the destruction or damage and ending with the completion by the Landlord
of
the work, repair, or reconstruction that Landlord is obligated to
do.
16
20.
CONDEMNATION
(a)
If
the whole or any part of the Premises shall be taken under the power of eminent
domain, this Lease shall terminate as to the part so taken on the date Tenant
is
required to yield possession thereof to the condemning authority. Landlord
shall
make such repairs and alterations as may be necessary in order to restore the
part not taken to useful condition and the Annual Basic Rental shall be reduced
proportionately as to the portion of the Premises so taken. If the portion
of
the Premises so taken renders the balance of the Premises untenantable, taking
into account the nature of Tenant's business, either party may terminate this
Lease as of the date when Tenant is required to yield possession. If twenty-five
percent (25%) or more of the total rentable floor area of the Center or the
parking areas located in the Center are taken as aforesaid, then Landlord may
terminate this Lease as of the date of the taking. All compensation awarded
for
any taking of the leasehold and/or the improvements thereon shall belong to
and
be the property of Landlord; provided, however, that nothing contained herein
shall prevent Tenant from applying for reimbursement from the condemning
authority (if permitted by law) for moving expenses, or removal of Tenant's
furniture, business equipment and such fixtures as Tenant is permitted to remove
hereunder, but if and only if such action shall not reduce the amount of
compensation otherwise recoverable by Landlord from the condemning
authority.
(b)
Notwithstanding anything to the contrary contained herein, Tenant
will have the right to claim and recover from the taking authority, but not
from
Landlord, such compensation as may be separately awarded or recoverable by
Tenant in Tenant's own right on account of
(i)
any
and all costs or loss (including loss of business) that Tenant incurs in
removing Tenant's merchandise, furniture, fixtures, leasehold improvements,
and
equipment to a new location,
(ii)
the
taking of personal property and fixtures owned by Tenant,
(iii)
the
unamortized portion of any real property improvements made to the Premises
by
Tenant at Tenant's sole cost and expense,
(iv)
any
loss of goodwill, and
(v)
the
value of Tenant's leasehold estate.
21.
MARKETING FUND AND PROMOTION OF CENTER
Landlord
has established or may establish an advertising and promotional service (herein
the "Marketing Service") to furnish and maintain advertising and sales
promotions which, in Landlord's judgment, will benefit the Center. Landlord
has
established, or may establish, a fund (the "Marketing Service Fund") to be
used
by Landlord to pay all costs and expenses of the Marketing Service (including
administrative costs and insurance). In such event, Tenant shall pay each month,
as additional rent, and as its contribution to the Marketing Service Fund,
an
amount established by Landlord, which shall not be in excess of ten percent
(2%)
of the Annual Basic Rental payable by Tenant for such month.
17
22.
ASSIGNMENT, MORTGAGING AND SUBLETTING
(a)
Tenant covenants and agrees that neither this Lease nor the terms and estate
hereby granted, nor any interest herein or therein, will be assigned, mortgaged,
pledged, encumbered or otherwise transferred, and that neither the Premises,
or
any part thereof, will be encumbered in any manner by reason of any act or
omission on the part of Tenant, or used or occupied, or permitted to be used
or
occupied by anyone other than Tenant, or for any purpose other than as stated
in
the Fundamental Lease Provisions hereof, or be sublet, or offered or advertised
for subletting, without the prior written consent of Landlord in every case,
which consent shall not be unreasonably withheld. Tenant shall be responsible
for all costs incurred by Landlord in considering and documenting any requested
assignment or sublease, as well as Landlord's legal fees not to exceed $1,000.
Consent by Landlord to any assignment, mortgaging or subletting shall not
constitute a waiver of the necessity for such consent for any subsequent
assignment, mortgaging or subletting. This prohibition includes any assignment,
encumbrancing or subletting which would otherwise occur by operation of law,
merger, consolida-tion, reorganization, transfer or other change of Tenant's
corporate or proprietary structure, stock or equity. However, notwithstanding
anything to the contrary contained herein, Tenant may encumber, assign, sell
or
otherwise convey up to 50 percent of Tenant’s stock or equity without being
required to obtain written consent from Landlord.
(b)
No
assignment, subletting or licensing shall affect or reduce the liability of
Tenant for the performance of the terms and provisions hereof.
(c)
Tenant agrees that if a sublease is secured on the Premises and the rental
rate
under such sublease is greater than the rental rate hereunder, or if this Lease
shall be assigned, and Tenant shall receive consideration in exchange for such
assignment, Landlord shall receive fifty percent (50%) of this increased rental
or consideration. If a sublease or assignment is executed, then any options
to
extend this Lease shall be voided, unless Landlord, in its sole discretion,
shall agree to the contrary.
(d)
In
addition to Landlord=s
right
to approve or disapprove a proposed sublease or assignment, as hereinbefore
set
forth, Landlord shall have the right, to be exercised by giving notice to Tenant
within thirty (30) days after receipt of Tenant=s
notice
as aforesaid, to recapture the Premises, or portion thereof, described in the
proposed sublease or assignment. If notice of recapture is given, it shall
serve
to cancel and terminate this Lease with respect to the proposed sublease space,
or, in the case of a proposed assignment, it shall serve to cancel and terminate
the entire Term of this Lease, in either case as of the proposed effective
date
of any assignment or sublet and as fully and completely as if that date had
been
definitely fixed as the expiration of the Term of this Lease; provided, however,
that no termination of this Lease with respect to all or part of the Premises
shall become effective without the prior written consent, where necessary,
of
the holder of each mortgage to which this Lease is then subject. If this Lease
be cancelled pursuant to the terms hereof with respect to less than the entire
Premises, the Rent shall be adjusted on the basis of the proportion of the
gross
rentable square footage retained by Tenant to the gross rentable square footage
originally demised and the lease so amended shall continue thereafter in full
force and effect. The failure of Landlord to exercise its right of recapture
shall not be construed in any manner to be an approval of Tenant=s
request
to assign or sublet, such approval to be effective only if given in writing
by
Landlord to Tenant.
23.
PERFORMANCE BY TENANT
(a)
Tenant covenants and agrees to perform all obligations herein expressed on
its
part to be performed or observed by it. If Landlord should send notice
specifying action desired by Landlord in connection with any such obligations,
Tenant agrees to promptly comply with the terms of such notice. If Tenant shall
not commence and proceed diligently to comply with such notice to the
satisfaction of Landlord within five (5) days after delivery thereof, Landlord
may, in addition to any rights or remedies provided hereunder or at law, enter
upon the Premises without terminating this Lease and do the things specified
in
said notice. Landlord shall have no liability to Tenant for any loss or damages
resulting in any way from such action by Landlord, and Tenant agrees to pay
promptly upon demand any expense incurred by Landlord in taking such
action.
18
(b)
Notwithstanding anything in this Lease to the contrary, Landlord shall have
the
right to immediately enter the Premises to correct any situation which, in
the
sole discretion of Landlord, is deemed to be of an emergency nature. Landlord
shall have no liability to Tenant for any loss or damages resulting in any
way
from such action by Landlord, and Tenant agrees to pay promptly upon demand
any
expense incurred by Landlord in taking such action. Tenant will provide Landlord
with a key to allow entry to the Premises for this purpose.
24.
BANKRUPTCY
If
any
sale of Tenant's interest in the Premises created by this Lease shall be made
under execution or similar legal process, or if a voluntary or involuntary
petition or answer proposing the adjudication of Tenant as a bankrupt or the
reorganization of Tenant pursuant to the Federal Bankruptcy Act or any similar
Federal or State proceeding is filed against Tenant and such petition or answer
is not discharged or denied within thirty (30) days of the date of the filing
thereof; or if Tenant shall be adjudicated a bankrupt or insolvent and such
adjudication is not vacated within ten (10) days; or if a receiver or trustee
shall be appointed for its business or property and such appointment shall
not
be vacated within ten (10) days; or if a corporate reorganization of Tenant
or
any arrangement with its creditors shall be approved by a court under the
Federal Bankruptcy Act or any state bankruptcy law; or if Tenant shall make
an
assignment for the benefit of creditors; or if in any other manner Tenant's
interest under this Lease shall pass to another by operation of law, Tenant
shall be deemed to have breached a material covenant and Landlord may re-enter
the Premises and/or declare this Lease and the tenancy hereby created
terminated. Notwithstanding such termination, Tenant shall remain liable for
all
rent and damages which may be due at the time of such termination and shall
be
liable for the damages set forth in Section 26.
25.
HAZARDOUS MATERIALS
(a)
Tenant shall not cause to brought upon the Premises any (i) hazardous substance,
pollutant or contaminant (as defined in Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C.
S9601, as amended by the Superfund Amendments and Re-authorization Act of 1986
(Pub. X.Xx. 99-499, 100 Stat. 1613 (1986) (XXXX) or 40 CFR Part 261, whichever
is applicable), or (ii) hazardous waste, residual waste or solid waste, as
those
terms are defined in Section 103 of the Pennsylvania Solid Waste Management
Act,
35 P.S. S6018.103 and/or 25 PA Code SS75.260 and 75.261 and/or Hazardous Sites
Cleanup Act, 35 P.S. S6020.101 et seq.
(b)
If
Tenant shall violate the foregoing covenant, and Landlord is thereafter
identified in any litigation, administrative proceedings or investigation as
a
responsible party for any liability under the above referenced laws, Tenant
shall indemnify and agrees to hold Landlord harmless from and against all loss,
liability, damage, expense and costs arising out of Tenant's breach of the
representations and covenants of this Section 25. The foregoing indemnification
shall survive the expiration or termination of this Lease.
26.
DEFAULT; REMEDIES
(a)
Defaults.
Subject
to the provisions contained in subsection 26 (c) below, if any of the following
shall occur:
(i)
Tenant does not pay in full when due any installment of Annual Basic Rent,
additional rent or any other charge or payment whether or not herein included
as
rent,
19
(ii)
Tenant violates or fails to perform or otherwise breaks any covenant, agreement
or condition herein contained or any other obligation of Tenant to
Landlord,
(iii)
Tenant does not occupy the Premises within sixty (60) days after the Rent
Commencement Date,
(iv)
Tenant removes or attempts to remove Tenant's property from the Premises other
than in the ordinary course of business without having first paid to Landlord
in
full all rent and any other charges that may have become due;
(v)
Tenant or any guarantor of Tenant hereunder becomes the subject of commencement
of an involuntary case under the federal bankruptcy law as now or hereafter
constituted, or there is filed a petition against Tenant or any guarantor of
Tenant hereunder seeking reorganization, arrangement, adjustment or composition
of or in respect of Tenant or any guarantor of Tenant hereunder under the
federal bankruptcy law as now or hereafter constituted, or under any other
applicable federal or state bankruptcy, insolvency, reorganization or other
similar law, or seeking the appointment of a receiver, liquidator or assignee,
custodian, trustee, sequestrator (or similar official) of Tenant or any
guarantor of Tenant hereunder or any substantial part of the property of either
Tenant or any guarantor of Tenant hereunder, or seeking the winding-up or
liquidation of its affairs and such involuntary case or petition is not
dismissed within sixty (60) days after the filing thereof, or if Tenant or
any
guarantor of Tenant hereunder commences a voluntary case or institutes
proceedings to be adjudicated a bankrupt or insolvent, or consents to the
institution of bankruptcy or insolvency proceedings against it, under the
federal bankruptcy laws as now or hereafter constituted, or any other applicable
federal or state bankruptcy, reorganization or insolvency or other similar
law,
or consents to the appointment of or taking possession by a receiver or
liquidator or assignee, trustee, custodian, sequestrator (or other similar
official) of Tenant or any guarantor of Tenant hereunder or of any substantial
part of its property, or makes any assignment for the benefit of creditors,
or
admits in writing its inability to pay its debts generally as they become due,
or fails to generally pay its debts as they become due, or if Tenant or any
guarantor of Tenant hereunder takes any action in contemplation of any of the
foregoing, then:
(b)
Landlord's
Remedies.
If any
such event set forth above, and at the sole option of Landlord, in addition
to
all remedies Landlord may have at law or in equity,
(i)
The
whole balance of rent and any other charges, whether or not payable as rent,
for
the entire balance of the term and any renewal or extension thereof for which
Tenant has become bound, or any part of such rent and charges, and also all
or
any costs and sheriff's, marshall's, constable's or other officials'
commissions, whether chargeable to Landlord or Tenant, including watchman's
wages, shall be taken to be due and payable and in arrears as if by the terms
of
this Lease said balance of rent and such other charges and expenses were on
that
date payable in advance.
(ii)
The
term of this Lease shall terminate and become absolutely void, without notice
and without any right on the part of Tenant to save the forfeiture by payment
of
any sum due or by other performance of any condition, term, agreement or
covenant broken.
(iii)
THE FOLLOWING SECTIONS SET FORTH WARRANTS OF AUTHORITY FOR ANY ATTORNEY TO
CONFESS JUDGMENT AGAINST THE TENANT, AND TO HAVE TENANT'S PROPERTY SEIZED OR
OTHERWISE SUBJECTED TO ATTACHMENT OR OTHER EXECUTION PROCESS IMMEDIATELY AFTER
THE CONFESSED JUDGMENT IS ENTERED. IN GRANTING THESE WARRANTS OF ATTORNEY,
TENANT REPRESENTS TO LANDLORD THAT TENANT HAS HAD AN OPPORTUNITY TO CONSULT
WITH
LEGAL COUNSEL ABOUT THIS MATTER, AND ACTS KNOWINGLY, INTENTIONALLY AND
VOLUNTARILY, AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS THE TENANT HAS OR
MAY
HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE
CONSTITUTIONS OF AND LAWS OF THE UNITED STATES OF AMERICA AND THE COMMONWEALTH
OF PENNSYLVANIA.
20
(B)
Upon the expiration of the then current term of this Lease or the earlier
termination or surrender hereof as provided in this Lease, it shall be lawful
for any attorney of any Court of record to appear as attorney for Tenant, as
well as for all persons claiming by, through or under Tenant, and to enter
in
any competent Court an action in ejectment against Tenant and all persons
claiming by, through or under Tenant and therein confess judgment for the
recovery by Landlord of possession of the Premises, for which a copy of this
Lease, verified by affidavit, shall be sufficient warrant, whereupon if Landlord
so desires a writ of possession or other appropriate writ under the Rules of
Civil Procedure then in effect may issue forthwith, without any prior writ
or
proceedings; provided, however, if this Lease is terminated and the possession
of the Premises remain in or be restored to Tenant, Landlord shall have the
right for the same default and upon any subsequent default or defaults, or
upon
the termination of this Lease under any of the terms of the Lease to bring
one
or more further action or actions as hereinbefore set forth to recover
possession of the Premises as provided above.
(C)
In any action of ejectment, Landlord shall first cause to be filed in such
action, an affidavit made by him, or someone acting for him, setting forth
the
facts necessary to authorize the entry of judgment and, if a true copy of this
Lease (and of the truth of the copy such affidavit shall be sufficient evidence)
be filed in such action, it shall not be necessary to file the original as
a
warrant of attorney, any rule of Court, custom or practice to the contrary
notwithstanding.
(iv)
If
proceedings shall be commenced by Landlord to recover possession under the
Acts
of Assembly and Rules of Civil Procedure, either at the end of the term, or
upon
the earlier termination of this Lease, or for non-payment of rent or any other
reason, tenant, specifically waives the right to the three months; notice and
to
the fifteen or thirty days' notice required by the Landlord and Tenant Act
of
1951, and agrees that five (5) days' notice shall be sufficient in either or
any
such case.
(v)
After
re-entry or retaking or recovering of the Premises, whether by way of
termination of this Lease or not, Landlord may lease the Premises or any part
or
parts thereof to such person or persons and upon such terms as may in Landlord's
discretion seem best for a term within or beyond the term of this Lease, and
Tenant shall be liable for any loss of rent for the balance of the term and
any
renewal or extension for which Tenant has become bound plus the costs and
expenses of reletting and of making repairs and alterations to the Premises.
Further, Tenant, for itself and its successors and assigns, hereby irrevocably
constitutes and appoints Landlord as Tenant's agent to collect the rents due
and
to become due from all subleases and apply the same to the rent due hereunder
without in any way affecting Tenant's obligation to pay any unpaid balance
of
rent due or to become due hereunder.
(vi)
Landlord may (but shall not be obligated to do so), in addition to any other
rights it may have in law or equity, cure such default on behalf of Tenant,
and
Tenant shall reimburse Landlord upon demand for all costs incurred by Landlord
in curing such default, including, without limitation, reasonable attorneys'
fees and other legal expenses, together with interest thereon at the interest
rate specified in subsection 26 (g) below, which costs and interest thereon
shall be deemed additional rent hereunder.
21
(c)
Notice
of Default.
Except
as to defaults under subsections 26 (a) (i), (a) (iii), (a) (iv) and (a) (v),
Landlord shall not exercise any right or remedy provided for in this Lease
or
allowed by law because of any default of Tenant, unless Landlord shall have
first given written notice of such default to Tenant, and Tenant shall have
failed within ten (10) days after such notice from Landlord to correct such
default, or if such default is not susceptible of being corrected within the
aforesaid ten (10) days, then provided Tenant shall have commenced such cure
within the aforesaid ten (10) day period and shall diligently prosecute
completion of same, Tenant shall have such additional time (not to exceed twenty
(20) additional days) as Tenant may reasonably require to complete such cure;
provided, however, that Landlord shall not be required to give, and Tenant
shall
not be entitled to the benefit of, any such notice or grace period (i) more
than
two (2) times in any twelve (12) month period, or (ii) if in Landlord's
reasonable judgment, Tenant's delay in curing such default would materially
jeopardize the Premises, Center, or any tenants thereof.
(d)
Remedies
Cumulative.
All
remedies available to Landlord hereunder and at law and in equity shall be
cumulative and concurrent. No termination of this Lease nor taking or recovering
possession of the Premises shall deprive Landlord of any remedies or actions
against Tenant for rent, for charges or for damages for the breach of any
covenant, agreement or condition herein contained, nor shall the bringing of
any
such action for rent, charges or breach of covenant, agreement or condition,
nor
the resort to any other remedy or right for the recovery of rent, charges or
damages for such breach be construed as a waiver or release of the right to
insist upon the forfeiture and to obtain possession. No re-entering or taking
possession of the Premises, or making of repairs, alterations or improvements
thereto, or reletting thereof, shall be construed as an election on the part
of
Landlord to terminate this Lease unless written notice of such election be
given
by Landlord to Tenant. The failure of Landlord to insist upon strict and/or
prompt performance of the terms, agreements, covenant and conditions of this
Lease or any of them, and/or the acceptance of such performance thereafter
shall
not constitute or be construed as a waiver of Landlord's right to thereafter
enforce the same strictly according to the terms thereof in the event of a
continuing or subsequent default.
(e)
Expenses
of Enforcement.
In the
event Landlord shall engage counsel as a result of any action by Tenant,
regardless of whether litigation is instituted, Landlord shall be entitled
to
receive from Tenant the amount of Landlord's reasonable out-of-pocket legal
fees
and out-of-pocket expenses of counsel.
(f)
Nonwaiver.
Any
failure of Landlord to enforce any remedy allowed for the violation of any
provision of this Lease shall not imply the wavier of any such provision, even
if such violation is continued or repeated and no express wavier shall affect
any provision other than the one(s) specified in such waiver and only for the
time and in the manner specifically stated. No receipt of monies by Landlord
from Tenant after the termination of this Lease shall in any way (i) alter
the
length of the term or of Tenant's right of possession hereunder, or (ii) after
the giving of any notice, reinstate, continue or extend the term or affect
any
notice given to Tenant prior to the receipt of such monies, it being agreed
that
after the service of notice or the commencement of a suit or after final
judgment for possession of the Premises, Landlord may receive and collect any
rent due, and the payment of said rent shall not waive or affect said notice,
suit or judgment.
(g)
Interest
Rate.
If any
sums which Tenant is obligated to pay to Landlord are not paid when due, they
shall bear interest at the rate of eighteen percent (18%) per annum (but in
no
event at a rate in excess of the highest rate allowed by law).
(h)
Late
Charge.
Tenant
shall pay a "late charge" of eight percent (8%) (but in no event to exceed
the
highest lawful rate) of any installment of Annual Basic Rent (or any other
charge or payment considered additional rent under this Lease) when paid more
than seven days after the due date thereof, to cover the administrative expense
involved in handling delinquent payments.
22
27.
REMEDIES CUMULATIVE
Each
right and remedy provided for in this Lease shall be cumulative and shall be
in
addition to every other right or remedy provided for in this Lease or now or
hereafter existing at law or in equity or by statute or otherwise, and the
exercise or beginning of 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 or by statute or otherwise 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 or by statute or otherwise.
28.
SUBORDINATION; ATTORNMENT
(a)
Tenant's rights under this Lease are and shall always be subordinate to the
operation and effect of any lease of land only or of land and buildings in
a
sale-leaseback transaction, any mortgage, deed of trust or other security
instrument now or hereafter placed upon the Center or any part or parts thereof
by Landlord. This clause shall be self-operative, and no further instrument
of
subordination shall be required. In confirmation thereof, Tenant shall execute
such further assurances as may be requisite. In addition, Tenant agrees to
attorn to any successor in interest to Landlord whether by purchase,
fore-closure, sale in lieu of foreclosure, power of sale, termination of any
lease of land only or land and buildings in a sale-leaseback transaction or
otherwise, if so requested or required by such successor in interest, and Tenant
agrees, upon demand, to execute such agreement or agreements in confirmation
of
such attornment.
(b)
Landlord or its mortgagee, any ground lessor or other similar secured party,
may, at their option, make this Lease superior to any such mortgage, ground
lease or other security instrument by giving Tenant ten (10) days prior written
notice. No other documentation shall be necessary to affect such
change.
(c)
If
any person shall succeed to all or part of Landlord's interest in the Premises
upon the exercise of any remedy provided for in any mortgage of the Premises
now
or hereafter recorded to which this Lease is prior as provided in subsection
28
(a) above, (i) Tenant shall attorn and recognize such person as Tenant's
landlord as above provided and this Lease shall continue in full force and
effect as a direct lease between such person and Tenant as fully and with the
same force and effort as if this Lease had originally been entered into by
such
person and Tenant, except that such person shall not be liable for any act
or
omission of Landlord prior to such person's succession to title nor be subject
to any offset, defense or counterclaim accruing prior to such person's
succession to title, nor be bound by any payment of Annual Basic Rent or on
account of the Tax Charge or Operating Costs made more than one month in advance
(except for payments in the nature of security deposits), nor be bound by any
modification of this Lease or any waiver, compromise, release or discharge
of
any obligation of Tenant hereunder unless such modification, waiver, compromise,
release or discharge shall have been specifically consented to in writing by
the
mortgagee under said mortgage, and (ii) such person and each person succeeding
to its interest in the Premises shall not be liable for any warranty or guaranty
of Landlord under the Lease and shall be liable for the performance and
observance of the other covenants and conditions to be performed and observed
by
Landlord under this Lease only with respect to the period during which such
person shall own such interest.
(d) (i)
Tenant agrees that at any time and from time to time at reasonable intervals,
within ten (10) days after written request by Landlord, Tenant will execute,
acknowledge and deliver to Landlord and/or to such assignee, mortgagee or other
similar secured party as may be designated by Landlord, a certificate stating
that this Lease is unmodified and in full force and effect (or that the same
is
in full force and effect as modified, listing the instruments of modification),
the dates to which rent and other charges have been paid, and whether or not
to
the best of Tenant's knowledge Landlord is in default hereunder (and if so,
specifying the nature of the default), it being intended that any such statement
delivered pursuant to this paragraph may be relied upon by a mortgagee, ground
lessor or assignee of Landlord's interest in the Center.
23
(ii)
The
failure of Tenant to execute and deliver such certificate shall constitute
a
default hereunder, in which event Landlord, in addition to all other remedies
available to it for such default, is hereby authorized, as attorney and agent
of
Tenant, to execute such certificate and in such event Tenant hereby confirms
and
ratifies any such certificate executed by virtue of the power of attorney hereby
granted.
29.
SUCCESSORS AND ASSIGNS
This
Lease and the covenants and conditions herein contained shall inure to the
benefit of and be binding upon Landlord, its successors in trust, successors
and
assigns, and shall be binding upon Tenant, its successors and assigns and shall
inure to the benefit of Tenant and only such assigns of Tenant to whom the
assignment of Tenant has been consented to in writing by Landlord as herein
provided.
30.
NOTICES
(a)
All
notices from Tenant to Landlord shall be in writing directed to Landlord at
the
address of Landlord set forth in the Fundamental Lease Provisions. All notices
from Landlord to Tenant shall be in writing directed to Tenant at the address
set forth in the Fundamental Lease Provisions. Either party may designate in
writing a substitute address for notices, and thereafter notices shall be
directed to such substitute address. Notices shall be given by certified mail,
return receipt requested or express delivery service.
(b)
After
receiving notice from any person, firm or other entity that it holds a mortgage
which includes the Premises as part of the mortgaged premises, or that it is
the
ground lessor under a lease with Landlord, as ground lessee, which includes
the
Premises as part of the demised premises, no notice from Tenant to Landlord
shall be effective unless and until a copy of the same is given to such holder
or ground lessor, and the curing of any of Landlord's defaults by such holder
or
ground lessor shall be treated as performance by Landlord. For the purposes
of
this Lease, the term "mortgage" when used in the context of a landlord's
mortgage includes a mortgage on a leasehold interest of Landlord (but not one
on
Tenant's interest).
31.
APPLICABLE LAW
This
Lease shall be construed under the laws of the state in which the Center is
located.
32.
CAPTIONS AND HEADINGS
Captions
and headings are for convenience and reference only.
33.
JOINT AND SEVERAL LIABILITY
If
two or
more individuals, corporations, partnerships or other business associations
(or
any combination of two or more thereof) shall sign this Lease as Tenant, the
liability of each such individual, corporation, partnership, or other business
association to pay rent and perform all other obligations hereunder shall be
deemed to be joint and several. In like manner, if the Tenant named in this
Lease shall be a partnership or other business association, the members of
which
are, by virtue of statute or general law, subject to personal liability, the
liability of each such member shall be joint and several.
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34.
BROKERAGE COMMISSION
Each
of
the parties represents and warrants that there are no claims for brokerage
commissions or finder's fees in connec-tion with the execution of this Lease,
and agrees to indemnify the other against, and hold it harmless from, all
liabilities arising from any such claim (including, without limitation, the
cost
of counsel fees in connection therewith).
35.
NO OPTION
The
submission of this Lease to Tenant for examination does not constitute a
reservation of or option for the Premises, and this Lease becomes effective
only
upon execution and delivery thereof by Landlord.
36.
NO MODIFICATION
This
Lease and the Schedules or Exhibits attached hereto are intended by the parties
as a final expression of their agreement and as a complete and exclusive
statement of the terms thereof, all negotiations, consideration and
representations between the parties having been incorporated herein. No course
of prior dealings between the parties or their affiliates shall be relevant
or
admissible to supplement, explain or vary any of the terms of this Lease.
Acceptance of, or acquies-cence in, a course of performance rendered under
this
or any prior agreement between the parties or their officers, employees, agents
or affiliates shall not be relevant or admissible to determine the meaning
of
any of the terms of this Lease. No representations, understandings or agreements
have been made or relied upon in the making of this Lease other than those
specifically set forth herein. This Lease can only be modified by a writing
signed by all of the parties hereto or their duly authorized
agents.
37.
SEVERABILITY
If
any
term or provision, or any portion thereof, 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.
38.
THIRD PARTY BENEFICIARY
Nothing
contained in this Lease shall be construed so as to confer upon any other party
the rights of a third party beneficiary as to any provision contained
herein.
39.
TRANSFER BY LANDLORD
In
the
event of any sale, transfer or other disposition of Landlord's interest in
the
Center, Landlord shall automatically and without any further act or instrument
be released and relieved of and from any and all obligations and liabilities
of
Landlord accruing from and after the date of such transfer and in such event
Landlord's successor or transferee by accepting such sale, transfer and
assignment shall hereby automatically assume and be liable for all obligations
and liabilities of Landlord which accrue from and after such sale or transfer
and Tenant agrees to look solely to such successor or transferee for the
perform-ance of any such duties and obligations and in satisfaction of all
such
liabilities under this Lease.
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40.
LIMITATION OF LIABILITY OF LANDLORD
Any
agreement, obligation or liability of Landlord is made, entered into or incurred
on the express condition that Tenant's only recourse under this Lease or
otherwise in the event of a default by Landlord of any such agreement,
obligation or liability of Landlord hereunder or otherwise, shall be limited
to
Landlord's interest in the Center.
41.
PARKING
(a)
Landlord agrees that Tenant and Tenant's employees, guests and invitees shall
have the non-exclusive right, in common with others entitled thereto, to utilize
the parking area located on the Center except that Tenant, its employees,
invitees and guests shall not have the right to use parking spaces which are
reserved for handicapped parking or which are otherwise set aside or reserved
by
Landlord.
(b)
Tenant's use of all parking areas shall be subject to any rules and regulations
relating thereto included from time to time in the Center's Rules and
Regulations (including the establishment of a parking area for the employees
of
tenants). Landlord shall not be responsible for any vandalism or other damages
from any cause occurring to automobiles or their contents while located in
such
parking spaces or moving in the parking area.
42.
SUBSTITUTE SPACE
In
the
event that a tenant or occupant of the Center desires to expand its premises
into the Premises or if a proposed tenant desires to lease space which includes
the Premises, if Landlord so requests, Tenant shall vacate the Premises and
relinquish its rights with respect to the same provided that Landlord shall
provide to Tenant substitute space in the Center, such space to be reasonably
comparable in size, layout, finish, visibility, accessibility and utility to
the
Premises, and further provided that said substitute space does not have a
material adverse affect on Tenant in conducting Tenant’s business, and that
Landlord shall, at its sole cost and expense, move Tenant and its removable
property from the Premises to such new space in such manner as will minimize,
to
the greatest extent practicable, undue interference with the business or
operations of Tenant. Any such substitute space shall, from and after such
relocation, be treated as the Premises under this Lease and shall be occupied
by
Tenant under the same terms, provisions and conditions as are set forth in
this
Lease.
43.
COVENANTS AND CONDITIONS
All
of
the covenants of Tenant hereunder shall be deemed and construed to be
"conditions", if Landlord so elects, as well as "covenants" as though the words
specifically expressing or importing covenants and conditions were used in
each
separate instance.
44.
TIME OF ESSENCE
Time
is
of the essence of this Lease and each of its provisions.
45.
MODIFICATIONS FOR LENDER
If
in
connection with obtaining financing or re-financing for the Center, the lender
shall request reason-able modifications in this Lease as a condition to such
financing, Tenant will not unreasonably withhold, delay or defer its consent
thereto, provided that such modifications do not increase the obligations of
Tenant hereunder or materially adversely affect the leasehold interest hereby
created or Tenant's rights hereunder.
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46.
HOLDING OVER
Any
holdover by Tenant after the expiration of the term of this Lease shall be
treated as a daily tenancy at sufferance at a rate equal to two (2) times the
Annual Basic Rent plus other additional rent charges herein provided (pro-rated
on a daily basis) and shall otherwise be on the terms and conditions set forth
in this Lease as far as applicable.
47.
RULES AND REGULATIONS
Landlord
shall have the right from time to time to prescribe rules and regulations which,
in its judgment, may be desirable for the use, entry, operation and management
of the Premises and Center each of which rules and regulations and any
amendments thereto shall become a part of this Lease without further action
of
the parties. Tenant shall comply with all such rules and
regulations.
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48.
TITLE
Landlord's
title is and always shall be paramount to the title of Tenant. Nothing herein
contained shall empower Tenant to do any act which can, shall or may encumber
the title of Landlord.
49.
PRIOR LEASE
On
the
Rent Commencement Date, the existing Lease Agreement, between Landlord and
Tenant for other space in the Center shall automatically terminate, and Tenant
shall vacate such premises on or before that date. Tenant shall be responsible
for compliance with all terms and conditions of such prior lease to the extent
they relate to the period prior to its termination date, or expressly survive
lease termination.
50.
WAIVER OF JURY TRIAL
LANDLORD
AND TENANT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER, ON OR IN RESPECT
TO
ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE,
THE RELATIONSHIP OF LANDLORD AND TENANT HEREUNDER, TENANT'S USE OR OCCUPANCY
OF
THE PREMISES AND/OR CLAIM OF INJURY OR DAMAGES.
IN
WITNESS WHEREOF Landlord and Tenant, intending to be legally bound hereby,
have
each duly executed this Lease under their respective seals as of the day and
year first above written.
UNITED
BANK OF PHILADELPHIA (Tenant)
By:
______________________________________________
Its:
_____________________________________________
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PROGRESS
TRUST, INC. (Landlord)
By:
_____________________________________________
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EXHIBIT
“B”
LANDLORD’S
WORK
Landlord
shall perform the work set forth herein prior to delivery of the Premises to
Tenant. Any work beyond that set forth herein required to enable Tenant to
operate its business in the Premises shall be the sole responsibility of
Tenant.
1. FLOORING:
Concrete floors throughout ready for Tenant's finish.
2. WALLS:
Provide unpainted and insulated drywall (taped and spackled) along the front
and
side walls. The rear wall shall be exposed uninsulated Concrete Masonry Units
or
brick. Demising walls between stores shall extend to the underside of the roof
deck.
3. STORE
DOORS: Storefront with doors per plans approved by Landlord and Tenant. Panic
hardware will be provided on the rear door or as required by applicable building
codes.
4. WINDOWS.
Windows will be supplied in accordance with plans approved by Landlord and
Tenant.
5. PLUMBING:
Rough-in ¾ inch water service shall be provided at location per approved plans.
Landlord shall provide individual meter.
6. HEATING,
VENTILATION AND AIR CONDITIONING (HVAC): A new self contained heating and air
conditioning roof top unit is included and is sized based on one (1) ton per
000
xxxxxx xxxx xx xxxxx xxxx. One drop supply duct and return lined duct into
Tenant's space is included. Branch ductwork, diffusers and return air grilles,
are not included and are to be supplied by the Tenant. Tenant is responsible
for
maintenance and cost of the HVAC system servicing Tenant's Premises utilizing
Landlord approved contractor.
7. ELECTRICAL:
200 amp 208/120 service panel and meter at location per approved plans.
.
8. FIRE
PROTECTION: Tenant space shall be sprinklered in applicable codes and delivered
with heads turned up. Any modifications required shall be the responsibility
of
the Tenant.
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