OFFICE
LEASE AGREEMENT
BETWEEN
BT LINCOLN, L.P., Landlord
And
DIGITAL DESCRIPTOR SYSTEMS, INC.
OFFICE
LEASE AGREEMENT
This lease dated May 16, 2000, by and between BT Lincoln, L.P., a
Pennsylvania limited partnership having an office c/o BET Investments, 0000
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx Xxxxxx, XX 00000, hereafter called
"Landlord" and Digital Descriptor Systems, Inc., a Delaware corporation with a
mailing address at 000 Xxx Xxxxxxx Xxxxxxx, Xxxxxxxx Xxxxx, XX 00000, hereafter
called "Tenant".
W I T N E S S E T H:
1. SPECIFIC TERMS
1.1 Leased Premises
Landlord leases to Tenant and Tenant rents from Landlord the
Premises ("Leased Premises") being the interior only of the space designated on
the plan attached hereto as Exhibit "A" containing approximately 5,914 rentable
square feet in the building (the "Building") being part of the property known as
000 Xxx Xxxxxxx Xxxxxxx, Xxxxxxxx Xxxxx, XX (the "Entire Premises"). As an
appurtenance to Leased premises Landlord grants to Tenant a nonexclusive license
to use, in common with others entitled thereto (as more specifically provided in
Section 3.01), all portions of Entire Premises (as defined below) designated by
Landlord from time to time as "Common Facilities."
l.2. "Term"
Five (5 Years.
l.3. "Minimum Rent"
The Minimum Annual Rent payable under this Lease shall be payable
in Equal monthly installments as provided in Section 2.1 as follows:
Year 1: $97,581.00 per year; $8,132.00 per month:
Year 2: $100,538.00 per year; $8,378.00 per month;
Year 3: $103,495.99 per year; $8,625.00 per month;
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Year 4: $106,452.00 per year; $8,871.00 per month;
Year 5: $109,409.00 per year; $9,117.00 per month.
1.4. "Expense Stop"
Tenant shall be responsible to pay all Costs of Operation (as
defined herein) in excess of $4.00 per rentable square foot.
1.5. "Proportionate Share"
For all purposes of this Lease Tenant's proportionate share shall
be the ration That the number of rentable sqaure feet in the Leased Premises
bears to the rentable square feet in the Building (51,058 sq. ft.) or 11.6%.
1.6. "Security Deposit"
Twenty Four Thousand Three Hundred Ninety Five Dollars
($24,395.00).
1.7. Use
Leased Premises shall be used solely for general business office
purposes And for no other use or purpose.
1.8. Notices
All notices or demands required or permitted to be given or served
under this Lease shall be deemed to have been given or served only if in writing
forwarded by registered or certified Mail, postage prepaid, and addressed as
follows:
To Landlord at:
BET Investments
Attention: Xxxxx X. Toll, President
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxxx, XX 00000
With a copy to:
BET Investments
Attention: Xxxxxxx X. Xxxxxxx, Executive Vice President
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxxx, XX 00000
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After Occupancy of the Leased Premises to Tenant at:
Digital Descriptor Systems, Inc.
Attention: Xxxxxxx X. Xxxxxxxxxx
000 Xxx Xxxxxxx Xxxxxxx
Xxxxxxxx Xxxxx, XX 00000
Prior to Occupancy of the Leased Premises to Tenant at:
Digital Descriptor Systems, Inc.
Attention: Xxxxxxx X. Xxxxxxxxxx
0000-X Xxxxx Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Such addresses may be changed by either Party by notice delivered
as Above provided to the other Party. If Landlord or any mortgagee shall so
request of Tenant, Tenant shall send such mortgagee a copy of any notice
thereafter sent to Landlord.
2. CONSTRUCTION-RENT - COMMENCEMENT OF TERM
2.1. Commencement of Term
Although this Lease shall become effective upon execution hereof,
the term Of this Lease and Tenant's obligation to pay rent, including, but not
limited to, minimum rent and additional Rent hereunder shall commence on the
earlier of: (i) the date of Substantial Completion of Landlord's Improvements
(as defined below); or (ii) the date on which the Tenant occupies any portion of
the Leased Premises. Notwithstanding the foregoing the term shall not commence
prior to June 15, 2000 unless the tenant occupies the Lease Premises prior to
such date.
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2.2. Construction
2.2.1. Landlord shall perform the work and make the installations
in the Leased Premises in a good and workmanlike manner and in accordance with
the preliminary space plans and specifications as shown on Exhibit "A" attached
hereto ("Landlord's improvements"). Landlord shall endeavor that Substantial
Completion of Landlord's Improvements shall occur on or before the date that is
sixty (60) days after the full execution and delivery of this Lease (the
"Estimated Completion Date"). The Estimated Completion Date shall be postponed
in the event of(i) delays caused by the unavailability of materials and
equipment that have been specified and requested by Tenant or (ii) delays caused
by acts of God, strikes and other events beyond the reasonable control of
Landlord, and neither circumstance shall give rise to liability of Landlord.
2.2.2. As used herein, "Substantial Completion" of Landlord's
Improvements shall occur when the Landlord's Improvements have been completed
substantially ii accordance with the plans and specifications (subject to the
completion of minor finish punch list items) and a certificate of occupancy or
temporary certificate of occupancy issued for the Leased Premises, which will,
except for any improvements or work to be performed by Tenant, allow Tenant to
utilize the Leased Premises for its intended purposes without material
interference to the customary business activities of Tenant by reason of the
completion of Landlord's Improvements. Landlord shall promptly repair or
complete punchlist items after such items are compiled by Tenant in writing and
delivered to Landlord during the first thirty (30) days after Tenant has
occupied the entire Leased Premises
2.2.3. In the event of delays in Substantial Completion of
Landlord's Improvements by reason of any of the following, the term hereof shall
commence to accrue as if the delay had not occurred:
2.2.3.1. changes in Landlord's Improvements, which are
requested by Tenant, provided that within three (3) business days
following the requested change, Landlord notifies Tenant that such
change will cause a delay Substantial Completion and the estimate amount
of delay, in which event Tenant may opt to keep Landlord's Improvements
as previously approved or change Landlord's Improvements so as not to
cause a delay, which decision shall be made by Tenant within twenty-four
(24) hours of Landlord's notice to Tenant specifying that such change
will cause a delay (which notice may be sent by telecopier).
2.2.3.2. delays, not caused by Landlord, in furnishing
materials or procuring labor required for installations or Landlord's
Improvements which are not customarily provided by Landlord for office
tenants in the Building provided that Tenant shall be notified of
Landlord's good faith estimate of the anticipated delay within three (3)
business days after discovery thereof by Landlord and shall be given an
opportunity to specify alternative materials or requirement or
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to return to installations or work customarily provided by Landlord for
office tenants, which decision shall be made within twenty-four (24)
hours of Landlord's notice to Tenant thereof, and further provided
that, in the event Tenant shall specify such alternative materials or
requirements, any delay incurred prior to Landlord's notice of the
anticipated delay with respect to the Landlord's Improvements in
question shall not be considered to be a delay chargeable to Tenant
under this Section 2.2.3;
2.2.3.3. any failure by Tenant, without regard to any grace
period applicable thereto, to furnish any required plan, information,
approval or consent within a required period of time including
appropriate plans and specifications for construction and remodeling of
the Leased Premises, but only to the extent such delay actually delays
the completion of Landlord's Improvements; or
2.2.3.4. Tenant's interference with the completion of
Landlord's Improvements as a result of Tenant's decorating, furnishing
or equipping the Leased Premises prior to the Estimated Completion Date.
Notwithstanding the foregoing, the Tenant shall be permitted to have
access to the Leased Premises prior to delivery to install its computer and
telephone wiring fifteen (15) days prior to Substantial Completion, provided
that the Tenant does not interfere with the completion of Landlord's Work.
2.3. Minimum Rent
The Minimum Rent for each year of the term of this Lease in the
amount set forth in Section 1.3 shall be payable by Tenant as therein set forth
without prior notice or demand and without set-off, counterclaim or deduction,
in advance at the address designated in Section 1.8 or at such other place as
may be' designated by Landlord from time to time in writing. If the term of this
Lease shall commence on a day other than the first day of a month, Tenant shall
pay, upon the commencement date, a portion of the Minimum Rent prorated on a
thirty (30) day basis. All Minimum Rent and other rents set forth herein shall
be paid in monthly installments, in advance, on or before the first day of each
month. In the event that the Minimum Rent and other rents set forth herein are
not paid on or before the sixth (6*) day of each month, the Tenant shall pay a
penalty of SI 00.00 plus interest on the unpaid amount at the Interest Rate (as
defined herein).
2.4. Costs of Operation
Pursuant to Section 1.4 of this Lease, Tenant shall pay to
Landlord Tenant's Proportionate Share of Costs of Operation of Entire Premises
in excess of the Expense Stop. For the purposes of this Lease, the Costs of
Operation of Entire Premises shall include, without limitation, all expenses,
costs and charges incurred in the cleaning, operation and maintenance of the
Entire Premises and all other costs, expenses or charges which Landlord shall
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pay or become obligated to pay because of or in connection with the ownership
and operation of Entire Premises, including, but not limited to, the following:
2.4.1. wages and salaries of all employees engaged in
operation and maintenance of Entire Premises including all taxes
thereon, and all insurance and benefits relating thereto.
2.4.2. all utilities used in the operation of the Entire
Premises excluding only those utilities, if any, separately billed to
individual tenants;
2.4.3. the cost of all maintenance and service agreements;
2.4.4. the cost of all insurance applicable to Entire
Premises, including, without limitation, all risk coverage, rent
insurance, and workmen's compensation;
2.4.5. all taxes, levies, fees, or charges, general and
special, ordinary and extraordinary, unforeseen as well as foreseen, of
any kind which are assessed, levied, charged, confirmed or imposed by
any public authority upon the Building and the Entire Premises or its
operation or the rent provided for in this Lease and any legal expenses
associated with tax appeals for the Property, excluding however, any
taxes on Landlord's net income;
2.4.6. cost of repairs, replacements and general maintenance
and building services all supplies and materials used in the operation
and maintenance of Entire Premises:
2.4.7. a management fee of 4% of gross rents receivable by
Landlord; and
2.4.8. the cost of capital improvements or other
modifications to Entire Premises and/or the Building;
2.4.9. The cost of maintenance, repair and operation of all
equipment And systems installed for owned by Landlord to provide HVAC
services.
Tenant's Proportionate Share of the Costs of Operation of Entire Presides shall
be paid in equal monthly installments of 1/12 of the amount estimated to be due
for each year within the term of the Lease. Landlord shall make a reasonable
estimate of the Costs of Operation of Entire Premises and of Tenant's
Poportionate Share of Costs of entire Presides at the beginning of each calendar
month thereafter. At the end of each year during the term of this Lease,
Landlord shall render a xxxx to Tenant for Tenant's proportionat share of the
Costs of Operation of entire Premises, and within twenty (20) days after date of
such xxxx and statement, Tentnt will pay any additional amount shown to be due
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statement or Landlord will credit any overpayment by Tenant against payments
thereafter to become due by Tenant on account of Costs of Operation of Entire
Premises or other sums payable by Tenant under this Lease. If there shall be a
portion of the term, either at the beginning or the end of the term, of less
than a full calendar year, the Tenant's Proportionate Share of the Costs of
Operation shall be pro rated on a daily basis. All Landlord's books and records
related to such additional rent shall be subject to review and audit by Tenant
or its representatives at any time during normal business hours with seven (7)
days advance written notice, no more than one (1) time each calendar year.
Notwithstanding the foregoing, the following costs incurred by Landlord shall
not be included in the Costs of Operations: (i) any ground lease rental; (ii)
any cost of capital replacements except to the extent that they are depreciated
over their useful life; (iii) Costs incurred by Landlord for the repair or
replacement of damage to the Building or the Office Building Area or its
contents caused by fire or other casualty, to the extent covered by insurance;
(iv) Lender's fees and interest payments; (v) Leasing commissions, attorney's
fees, space planning costs, and other costs and expenses in solely connection
with negotiations with this Lease and other present or prospective tenants or
other occupants of the Building; (vi) Interest, principal, points and fees on
debts or amortization on any mortgage or mortgages or any other debt instrument
encumbering the Building or the Office Building Area; (vii) Tax penalties
incurred as a result if Landlord's negligence, inability or unwillingness to
make payments when due, not attributable to Tenant's failure to make
payments to Landlord for such items with the Lease; (viii) Any and all costs
arising from the presence of hazardous materials or substances in or about the
Entire Premises, except as otherwise set forth in the Lease; (ix) Costs
(including all related attorney's fees and costs of settlement judgments and any
payments in lieu thereof) arising from claims or disputes between Landlord and
other tenants of the Building; (x) Cost of any items for which Landlord is
reimbursed by insurance, or otherwise compensated by parties other than tenants
of the Building.
2.5. Additional Rent
2.5.1 All sums payable under this Lease by Tenant whether or not
specifically so denominated shall be deemed additional rent shall be collectible
as such, and shall be payable in the same manner as Minimum Rent.
2.5.2 Tenant shall pay all charges and assessments for all
utilities, including without limitation, electricity, water, sewer and other
similar utility charges for services provided to Leased Premises either directly
to the applicable utility carrier based on charges for usage as reflected on
separate meters for the Leased Premises or to Landlord in the amount delivered
by reference to submeters in the event Landlord determines it advisable to
provide such services. If Landlord provides utility service, Tenant shall pay
all charges for such services as set forth on invoices or statements tendered to
Tenant by Landlord and Tenant will pay Landlord within ten (10) days after
mailing by Landlord to Tenant of statements therefore at the applicable rates
determined by Landlord from time to time which Landlord agrees shall be
reasonable and shall not be in excess of the Public Utility Rates for similar
service provided to consumers of the same status as Tenant, if applicable, but
in no event less than Landlord's actual cost. If Landlord does not
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determine that it is advisable to provide such services. Tenant shall pay such
services directly to the respective utility providers based upon separate meter
readings for the Leased Premises.
2.5.3. Tenant shall pay to Landlord, as additional rent. Tenant's
proportionate share of the cost of energy used in heating, ventilating and air
conditioning the Leased Premises.
2.5.4. Landlord shall not be liable to Tenant for the failure to
provide any utilities or services either required or permitted to be supplied by
Landlord under the terms of this Lease. However, Landlord agrees in the event of
any suspension or failure of service to proceed with all due diligence to
restore or cause the restoration of such service as soon as is reasonably
practical under the circumstances. In the event that any such interruption or
suspension of services is caused by the intentional misconduct of Landlord, the
rent shall xxxxx from the date of such interruption or suspension through the
date that such service is fully restored
2.6. Interest
Wherever in this Lease there is a provision that Tenant shall be
liable for the payment of any sum to Landlord, together with interest thereon,
or wherever Tenant shall fail to pay any sum hereunder when due, such sum shall
bear interest at a rate equal to two (2) percentage points per annum above the
announced prime rate or its equivalent charged by First Union National Bank or
its successor (the "Interest Rate"); provided, however, that the Interest Rate
shall not be more than the legal rate of interest which may be charged to
borrowers of the same nature and status as Tenant nor less than six percent (6%)
per annum.
3. COMMON FACILITIES AND SERVICES
3.1. Common Facilities
The Common Facilities referred to in Section I.I of this Lease
shall include, without limitation, any landscaped areas, lobbies, courts,
elevators, atria, common hallways, common chases, common risers, common wall
cavities, common conduits, common shafts and mechanical rooms, parking lot,
restrooms on the first floor and other similar facilities in Entire Premises and
the Building designated by Landlord for common or joint use of the occupants
thereof, their employees, agents, tenants, customers and other invitees. The
Common Facilities shall at all times be subject to the exclusive control and
management of Landlord. Landlord may from time to time promulgate, enforce and
uniformly apply reasonable rules and regulations, for the use of the Common
Facilities, and build or place landscaping and other improvements thereon.
Landlord, without liability to Tenant, may at any time and from time to time
close all or any portion of such Common Facilities to such extent as may be
necessary or appropriate in its opinion to prevent or avoid the possibility of a
dedication thereof to the public. Landlord, however, will not deprive Tenant of
reasonable access to and use of the Leased Premises.
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3.2. License
Landlord makes no representation as to nature of the
amenities included in the Common Facilities or as to the identity, type, size or
number of other tenants.
3.3. Landlord's Services
Provided that Tenant is not in default under any of the provisions
of this Lease beyond the expiration of any applicable grace period following
notice of default, Landlord shall (subject to Section 2.4 and 2.5):
3.3.1. Furnish heat and air conditioning to the Common Facilities
and Leased Premises during the normal heating season when required for
comfortable use and occupation on business days from Monday to Friday inclusive
from 8:00 a.m until 5:30 p.m.or for such longer hours provided that Tenant pays
its proportionate share of utilities used for such longer hours;
3.3.2. Clean or cause the Leased Premises to be kept clean (in a
commercially reasonable manner), provided the same are kept in order by Tenant
3.3.3. Maintain the Building in a first class manner.
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4. SIGNS, FIXTURES AND ALTERATIONS
4.1. Signs
Tenant shall not place or erect any signs, decorative devices,
awnings, canopies or other advertising matter visible from the exterior of the
Leased Premises without the prior written consent of Landlord. Notwithstanding
the foregoing, the Landlord shall place Tenant's name on the building directory
in the lobby and next to the entrance door of the Lease Premises.
4.2. Trade Fixtures
All trade fixtures installed by Tenant in the Leased Premises shall
be the property of Tenant and shall be removed at the expiration or sooner
termination of the term of this Lease or any renewal or extension thereof,
provided Tenant shall not at such time be in default under any covenant or
agreement contained in this Lease and provided, further, that Tenant shall
promptly repair any damage to Leased Premises caused by such removal. If Tenant
fails to remove any such trade fixtures upon expiration or sooner termination of
the term of this Lease, such trade fixtures shall be deemed abandoned and shall
become the property of Landlord or, at the option of Landlord may be removed
from Leased Premises and stored for the account of Tenant, at the cost and
expense of Tenant, which cost and expense shall constitute additional rent. Any
lighting fixtures, heating and air conditioning equipment, plumbing and
electrical systems and fixtures (except any telephone or other communications
systems, computer networks or systems and wiring and hardware related thereto
installed by Tenant, provided Tenant repairs any damage caused by the removal
thereof) and floor coverings shall not be deemed to be trade fixtures whether
installed by . Tenant or by any other party and shall not be removed from Leased
Premises but shall upon installation become the property of Landlord without any
compensation to Tenant.
4.3. Alterations
Tenant shall not make any changes, alterations or improvements to
Leased Premises or any part thereof without first obtaining the written consent
of Landlord. In applying for such consent, Tenant shall submit to Landlord
reasonable plans and specifications for the proposed work and an estimate of the
anticipated cost thereof. If Landlord determines it advisable to grant such
consent, Landlord may also impose such conditions as to permits, insurance,
bonds and waivers and releases of mechanic's liens as Landlord in its
commercially reasonable discretion deems advisable or necessary. Any
alterations, additions or improvements made by Tenant with the consent of
Landlord shall become the property of Landlord and shall remain upon the Leased
Premises at the expiration or sooner termination of this Lease unless Landlord
shall, as a condition to the approval of same, require that it have the option
at the termination of this Lease to cause Tenant to restore Leased Premises to
its condition existing before the making of such alterations or improvements.
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4.4. Mechanic's Lien
Before performing or permitting the performance of any work or
delay of any materials within Leased Premises as permitted under any provision
of this Lease or as otherwise agreed to by Landlord, Tenant shall, at its own
cost and expense, take such steps as Landlord might reasonably require in order
that no lien for labor or materials will attach to the Leased Premises as a
result of such work or materials delay. Tenant shall not permit any mechanics'
or other lien or claim for lien or notice in respect thereto to be filed against
the Leased Premises or any fixtures, equipment or furnishings contained therein.
If any such lien, notice or claim shall be made or filed, Tenant shall within
ten (10) days after notice of the filing thereof cause said lien, notice or
claim for lien to be effectively removed and discharged of record; provided,
however, that Tenant shall have the right to contest the amount or validity, in
whole or in part, of any such lien, notice or claim by appropriate proceedings
but in such event Tenant shall promptly bond such lien, notice or claim with a
surety company satisfactory to Landlord and shall prosecute such proceedings
with all due diligence and dispatch. If Tenant fails so to discharge or bond
such lien, Landlord may at its election remove or discharge such lien, notice or
claim by paying the full amount thereof, or otherwise, and without any
investigation or contest of the validity thereof, and Tenant shall pay to
Landlord upon demand, as additional rent, the amount paid by the Landlord
including Landlord's costs, expenses and counsel fees. Nothing in this Lease
shall authorize or be construed to authorize Tenant to subject Leased Premises
or Entire Premises to any such liens.
5. OCCUPANCY, MAINTENANCE, REPAIR AND SURRENDER OF LEASED PREMISES
5.1 Occupancy Agreements
Tenant covenants that Tenant:
5.1.1 will not use the plumbing facilities for any other purpose
than that for which they are constructed and will not permit its employees to
place any foreign substance of any kind to be thrown therein by any of its
employees, agents or invitees. The expense of repairing any breakage, stoppage,
seepage or damage, whether occurring on or off Leased Premises, resulting from a
violation of this provision by Tenant of Tenant's employees, agents or invitees
shall be borne by Tenant.
5.1.2. will comply with all laws, rules and regulations of all
governmental authorities having jurisdiction over the Leased Premises and with
all recommendations of the Association of Fire Underwriters with respect to the
use or occupancy of the interior of the Leased Premises by Tenant, provided,
however, that Landlord, and not Tenant, shall comply with such laws, rules and
regulations and recommendation as and to the extent that they relate to any
Common Areas or portions of the Entire Premises, other than Leased Premises;
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5.1.3. agrees that Landlord may amend, modify, delete or add new
and additional reasonable rules and regulations for the use and care of the
Leased Premises, the Entire Premises and the Common Facilities;
5.1.4. will comply with all such further rules and regulations upon
notice to Tenant from Landlord.
5.1.5. will use only such electrical appliances and customary
office lighting and office equipment as will not overload (in excess of five (5)
xxxxx per square foot) the electrical service as supplied by Landlord at the
commencement of the term of this Lease. If Tenant shall use or require
additional electrical service. Tenant shall provide the same at its own cost and
expense, but only in accordance with specifications approved by Landlord in
writing.
5.1.6. will not use or operate any machinery, that, in Landlord's
reasonable opinion, is harmful to the Leased Premises or Entire Premises or
disturbing to lessees occupying other parts of Entire Premises;
5.1.7. will not place any weights in any portion of Entire Premises
beyond the safe carrying capacity of the structure;
5.1.8. will not manufacture any commodity or prepare or dispense
any food or beverages in Leased Premises, except for Tenant's own use;
5.1.9. will not remove or attempt to remove any of Tenant's goods
or property from or out of the Leased Premises, other than in the ordinary
course of business, in such a manner as to impair or affect Landlord's lien
without first having paid Landlord all rent which may become due during the
entire term of this Lease, subject to the provisions of Section 12.9;
5.1.10. will not permit any odor, noise, sound, or vibration which
may, in Landlord's reasonable judgment, in any. way tend to impair the use of
any part of the Entire Premises or interfere with the business or occupancy of
any other lessee, or make or permit any disturbance of any kind in the Entire
Premises, or interfere in any way with any other lessee, occupant or invitee of
the Entire Premises;
5.1.11. will not obstruct any sidewalks, halls, passageways,
elevators or stairways in the Entire Premises or any part thereof, or use the
same for any purpose other than ingress and egress to and from the Leased
Premises;
5.1.12. will not bring in to or remove from Entire Premises any
heavy or bulky object except with the aid of experienced movers or riggers
approved in writing by Landlord and in accordance with the rules and regulations
set forth by Landlord;
5.1.13. will not keep any animal in or about the Leased Premises;
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5.1.14. will not use any part of Leased Premises as sleeping rooms
or apartments; and
5.2. Landlord's Repairs
Landlord will keep the Leased Premises and the Building in proper
repair (which shall be included in the Costs of Operation), provided that Tenant
shall give Landlord written notice of the necessity of any repairs to the Leased
Premises and the Tenant has not caused the damage necessitating the repairs.
Tenant shall bear all actual and reasonable costs and expenses of repairs caused
by Tenant's acts, ommissions or negligence other than reasonable wear and tear.
5.3. Surrender of Leased Premises
At the expiration of or xxxxxx termination of the tenancy hereby
created, Tenant shall peaceably surrender the Leased Premises in the same
condition of cleanliness, repair and sightliness as the Leased Premises were in
upon the commencement of business under this Lease, reasonable wear and tear and
damage by unavoidable casualty excepted to the extent that the same is covered
by Landlord's property loss or damage insurance policy. At such time, Tenant
shall surrender all keys for the Leased Premises to Landlord at the place then
fixed for the payment of rent and shall inform Landlord of all combinations on
locks, safes and vaults, if any, in the Leased Premises. Tenant shall in
accordance with Section 4.2 remove all its trade fixtures before surendering
Leased Premises and shall repair any damage to the Leased Premises caused
thereby. Tenant's obligation to observe or perform this convenant shall survive
the expiration or other termination of the term of this Lease.
5.4. Waste or Nuisance
Tenant shall not commit or suffer to be committed any waste upon
the Leased Premises. Tenant shall not commit or suffer to be committed any
nuisance or other act which may disturb the quiet enjoyment of any other tenant
or occupant of Entire Premises.
5.4. Environmental Matters
5.5.1. The term "Environmental Law" shall mean any federal, state
or local, statute, act, law, ordinance, rule, regulation or order pertaining to
the environment whether now or hereafter enacted and whether or not listed in
this definition, including, but not limited to the following:
(i) The Comprehensive Environmental Response Compensatina
and Liability Act ("CERCLA"), 42 U.S.C. Section 9601, as
amended by the Superfund Amendments and Reauthorization
Act of 1986 (Pub. L. 98-489, 100 Stat 1613, 1986)
(XXXX");
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(ii) The Resource Conservation and Recovery Act, 42 U.S.C.
Section 6801 et.seq. ("RCRA");
(iii) Toxic Substances Control Act, 15 U.S.C. Section 2601
("TSCA");
(iv) The Clean Water Act, 33 U.S.C. Section 40 et.seq
("CWA");
(v) The Clean AirAct, 42 U.S.C. Section 7901 et.seq.:
(vi) The Pennsylvania Solid Waste Management Act 35 P.S.
Section 6018.103; and
(vii) The Pennsylvania Hazardous Sites Clean Up Act (Act 108
of 1988)
5.5.2. "Hazardous Substance" shall mean any hazardous or toxic
substance as defined in any Environmental Law or in any rule, regulation or
order issued pursuant to any Environmental Law.
5.5.3. "Enforcement Agency" shall mean the Environmental Protection
Agency ("EPA") and any state, county, municipal or other agency having authority
to enforce any Environmental Law.
5.5.4. All alterations made in Leased Premises by or on behalf
Tenant or any permitted assignee or sublessee taking possession through Tenant
shall be in accordance with and shall comply with all Environmental Laws and the
requirements of any Enforcement Agencies.
5.5.5. If any statutes, laws, ordinances, rules or regulations are
promulgated at any time after the date of execution of this Lease for the
removal, abatement or containment of a Hazardous Substance in Leased Premises or
any portion of Leased Premises and, in the reasonable judgment of Landlord, it
is hazardous for the Tenant to remain in the Leased Premises during such
removal, abatement, or containment of the Hazardous Substance, Tenant shall
vacate Leased Premises or that portion of the Leased Premises that is hazardous
and, provided that such condition did not result from Tenant's acts, omissions,
or operations, Tenant's rent shall be abated proportionately for the period of
time in which Tenant's use of such portion of Leased Premises has been
interrupted.
5.5.6. Tenant shall not intentionally or unintentionally use,
store, handle, spill or discharge any Hazardous Substance at or in the vicinity
of Leased Premises. Tenant shall not use Leased Premises in any manner that will
cause Leased Premises to have a standard
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industrial classification ("SIC") that is covered by any Environmental Law or
which will cause Leased Premises to be deemed an "Industrial Establishment" as
defined under any Environmental Law. Tenant's failure to abide by the terms of
this Section 5.5.6 shall be restrainable by injunction. Notwithstanding the
foregoing, the Tenant may keep copy machine toner and normal office supplies at
the Leased Premises, provided that it handles and disposes such items in
accordance with all Environmental Laws.
5.5.7. At any time during the term of this Lease, Tenant shall
supply to Landlord affidavits of an officer of Tenant describing in detail the
operations and processes undertaken by Tenant at Leased Premises. Such
affidavits shall include a certification that no Hazardous Substance is
generated, used, stored, handled or disposed of at Leased Premises or, if any
such Hazardous Substance is generated, used, stored, handled or disposed of,
shall state the nature of any such substance and the methods used in handling
the same in reasonable detail. Such affidavits shall be delivered to Landlord
within ten (10) business days after request therefor.
5.5.8. Within ten (10) business days after request therefor. Tenant
shall provide all information requested from time to time by Landlord, or by any
Enforcement Agency for the preparation of all appropriate notices, submissions
or affidavits (including, without limitation. Non-applicability Affidavit, de
Minimis Quantity Exemption Application, Limited Conveyance Application or
Administrative Consent Order). Within ten (10) business days after request
therefor. Tenant shall execute and deliver any document reasonably required in
order to comply with any Environmental Law.
5.5.9. Tenant shall promptly deliver to Landlord copies of all
notices made by Tenant to, or received by Tenant from, any Enforcement Agency or
from the United States Occupational Safety and Health Administration concerning
environmental matters or Hazardous Substances at Leased Premises or Entire
Premises.
5.5.10. At any time throughout the term of this Lease'and any
extension thereof, Landlord may cause an inspection to be made of Leased
Premises and its surrounding area for the purpose of determining whether any
Hazardous Substance is present thereon.
5.5.11. Tenant shall indemnify, defend and hold Landlord harmless
of and from any and all losses, costs, damages, expenses or other financial
consequences in connection with any claims arising by reason of any violation by
or on behalf of Tenant of the provisions of this Section 5.05 and this indemnity
shall survive expiration or other termination of this Lease.
5.5,12 Landlord has no current knowledge that any Hazardous
Substances currently exist at the Leased Premises or the Building.
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6. INDEMNITY. INSURANCE AND WAIVER OF CLAIMS
6.1. Indemnity
Tenant shall indemnify and defend Landlord and save it harmless
from and against all claims, suits, actions, damages, judgments, liabilities,
fines, penalties, costs, fees and expenses for loss of life, personal injury or
damage to property: (a) arising from or out of any occurrences within Leased
Premises; or (b) by reason of the occupancy or use of the Leased Premises or any
part of Entire Premises by Tenant or any invitee, employee, agent, attorney,
successor or permitted sublessee or assignee of Tenant; or (c) occasioned wholly
or in part by any act or omission of Tenant or breach of this Lease by Tenant or
by its agents, contractors, customers, employees, servants, lessees, or
concessionaires, successors or permitted sublessees or assignees, except if
caused by the gross negligence or willful misconduct of Landlord, its agents,
employees or invitees. If Landlord shall be made a party to any litigation
commenced by or against Tenant its agents and employees. Tenant shall indemnify
and hold Landlord harmless and shall pay all costs, expenses and attorneys fees
incurred or paid by Landlord in connection with such litigation.
6.2. Insurance
Throughout the term of this Lease and any extensions thereof, and
so long as Tenant or any party claiming under Tenant remains in possession of
Leased Premises, Tenant shall obtain, maintain and pay for comprehensive general
liability insurance covering the Leased Premises, the business operated by
Tenant in the Leased Premises and the contractual liability of Tenant under this
Lease, naming Landlord and any mortgagee as additional insureds, in form and
content and with insurers reasonably satisfactory to Landlord, and with a
minimum limit of One Million Dollars ($1,000,000.00) for injury or death and One
Hundred Thousand Dollars ($100,000.00) for property damage, and for such other
coverages as reasonably might be required by Landlord or its mortgagee. Tenant
shall also obtain, maintain and pay for contents insurance covering at least 50%
of the replacement value (without depreciation) of all Tenant's personal
property (including, 'but not limited to Tenant's Fixtures and equipment,
whether owned or leased) situated in or about the Leased Premises with an "all
risk" policy form with coverage at a minimum as broad as a Standard Multi Peril
policy form (SMP) policy form, which contains the most recent Commercial ISO
"Causes of Loss-Special Form."
All insurance policies required to be maintained by Tenant under
this Lease shall be issued by insurance companies licensed to do business in the
Commonwealth of Pennsylvania, shall be reasonably satisfactory to Landlord, and
shall name Landlord and its managing agent as additional parties insured.
Certificates of such insurance (showing payment of current premiums thereon)
shall be delivered to Landlord a minimum often (10) days prior to the
commencement of the term of this Lease with renewals thereof delivered to
Landlord a minimum of ten (10) days prior to the expiration of any of such
policies. If requested to do so Tenant shall also provide Landlord with copies
of the pertinent portions of all such policies and also permit Landlord to
examine the original policies. Each policy shall contain an agreement by the
insurer that such policy shall not be canceled without ten (10) days prior
notice to Landlord by certified mail. If Tenant fails to deliver any of the
certificates as required in this Lease Landlord may either terminate
16
this Lease or procure such insurance at the cost of Tenant and pay the premiums
thereon. Such premiums shall be deemed additional rent hereunder and shall be
payable by Tenant to Landlord together with interest immediately upon demand.
6.3. Landlord's Insurance
Landlord will carry such all risk insurance covering Leased
Premises as Landlord deems necessary or as may be required by any mortgagee of
Entire Premises. If there shall be any increase in premiums that may be charged
during the term of this Lease on any insurance carried by Landlord on Entire
Premises caused by any act or omission of Tenant, Tenant shall pay as additional
rent hereunder (in addition to Tenant's Proportionate Share of Cost of
Operations of the Entire Premises) the amount of such increased premiums. A
schedule issued by the organization establishing the insurance rate on Entire
Premises, showing the components of such rate, shall be conclusive evidence of
the amount of such premiums.
6:4. Waiver of Claims
Tenant waives all claims against Landlord, its agents, servants,
successors and assigns and agrees to indemnify and hold it and them harmless for
loss of life, injury to person or damage to property sustained by Tenant or any
other occupant of Leased Premises or of any other part of Entire Premises or by
its or their agents, servants and employees resulting directly or indirectly out
of the condition of Leased Premises or Entire Premises or resulting from any
accident or occurrence in or about Leased Premises or Entire Premises or
resulting directly or indirectly from any act or neglect of any tenant or
occupant of Entire Premises or of any other person, except if caused by the
gross negligence or willful misconduct of the Landlord, its agents or employees.
All property belonging to Tenant or any occupant of Leased Premises or Entire
Premises shall be thereon at the risk of Tenant or such other person only and
Landlord shall not be liable for damage thereto or loss, theft or
misappropriation thereof. Tenant shall be responsible for all goods or property
of any third party left-upon Leased Premises.
6.5. Waiver of Subrogation
All insurance policies carried by either Landlord or Tenant
covering the Leased Premises, including but not limited to contents, fire and
casualty insurance, shall expressly waive any right on the part of the insurer
against the other party. The parties hereto agree that their policies will
include such waiver clause or endorsement so long as the same shall be
obtainable without extra cost, or, if extra cost shall be charged therefor, so
long as the other party pays such extra cost. If extra cost shall be chargeable
therefor, each party shall advise the other of the amount of the extra cost, and
the other party, at its election, may pay the same, but shall not be obligated
to do so.
Each of the parties hereto hereby releases the other, to the extent
of their respective required insurance and any deductibles or self insurance,
from any and all liability
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for any loss or damage which may be inflicted upon the property of such
party, even if such loss or damage shall be brought about by the fault or
negligence (including gross negligence) of the other party or their
respective agents or employees, provided, however, that this release shall be
effective only with respect to loss or damage occurring during such time as
the appropriate waiver hereinabove described is available through generally
issued insurance policies.
7. DAMAGE OR DESTRUCTION
7.1. Damage to Leased Premises
If all or part of the Leased Premises are rendered untenantable by
damage from fire or other casualty which, in the reasonable opinion of an
architect selected by Landlord, cannot be substantially repaired under
applicable laws and governmental regulations within ninety (90) days from the
date of such casualty (employing normal construction methods without overtime or
other premium and utilizing insurance proceeds recoverable by Landlord under its
then existing insurance coverage), then either Landlord or Tenant may elect to
terminate this Lease as of the date of such casualty by written notice delivered
to the other not more than ten (10) days after receipt of such architect's
opinion. Landlord shall cause its architect to provide to Tenant, within forty
five (45) days after the date of such casualty, notice of such architect's
determination of the estimated time to repair any such damage. If such notice is
not timely provided to Tenant, Tenant may terminate this Lease upon notice to
Landlord. In the event of the termination of this Lease as provided by this
Section 7.1, or by Section 7.3 below, the rent payable by Tenant hereunder shall
xxxxx as of the date of such casualty. If neither Landlord nor Tenant shall so
terminate this Lease, Landlord shall forthwith at its own expense, to the extent
of insurance proceeds actually received by Landlord on account of such fire or
other casualty, subject to the rights of any mortgagee, repair such damage,
other than damage to improvements, furniture, chattels or trade fixtures which
do not belong to Landlord or which were originally constructed by Tenant, which
shall be repaired by Tenant. Upon substantial completion of Landlord's work as
aforesaid, Tenant shall promptly install its equipment, appliances, furniture,
furnishings and other personal property in the Leased Premises as required to
conduct its business.
7.2. Abatement
If, as a result of a fire or other casualty which does not result
in termination of this Lease as set forth in Section 7.1 above, work is required
to repair damage to all or part of the Leased Premises under this Article 7, the
rent payable by Tenant hereunder shall be proportionately reduced to the extent
that the Leased Premises are thereby rendered unsuitable by Tenant for its
business, from the date of such casualty until the date of completion by
Landlord of the repairs to the Leased Premises (or the part thereof rendered
unsuitable). Notwithstanding anything contained in this Section 7.2, minimum
rent payable by Tenant hereunder shall not be abated if the damage is caused by
any act or omission of Tenant, its agents, servants, employees or any other
person entering upon the Leased Premises under express or implied invitation of
Tenant.
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7.3. Major Damage to Entire Premises
The provisions of Section 7.1 to the contrary notwithstanding, if
all or a substantial part of the Entire Premises is rendered untenantable by
damage from fire or other casualty to such a material extent that in the
reasonable opinion of Landlord the Entire Premises must be totally or partially
demolished or reconstructed. Landlord may elect to terminate this Lease as of
the date of such casualty by written notice delivered to Tenant not more than
sixty (60) days after the date of such casualty. In the event of any casualty to
the Entire Premises or to the Leased Premises, to the extent permitted by
applicable codes and orders of any appropriate governmental authority, Landlord
shall permit Tenant access to the Leased Premises for the purposes of removing
Tenants books, records, and other personalty.
8. EMINENT DOMAIN
8.1. Total Condemnation
If the whole of Leased Premises shall be condemned by eminent
domain or shall be conveyed by Landlord in lieu of any such condemnation for any
public or quasi- public use or purpose, the term of this Lease shall expire as
of the date on which possession of Leased Premises is required to be surrendered
to the condemning authority, and all rent shall be paid up to such date.
8.2. Partial Condemnation
If any part of Leased Premises shall be condemned by eminent domain
or shall be conveyed by Landlord in lieu of any such condemnation for any public
or quasi- public use or purpose and the remainder of the Leased Premises shall
thereafter be unsuitable for the business of Tenant, the term of this Lease
shall cease and terminate as of the date on which possession of the Leased
Premises is required to be surrendered to the condemning authority as though
such condemnation or conveyance were a total condemnation under Section 8.1. If
the remainder of Leased Premises after such condemnation or conveyance is
suitable for the business of Tenant, Landlord shall promptly restore Leased
Premises to the extent of net condemnation proceeds available for such purpose
after payment of all costs and payment of any amounts that may be due to any
first mortgagee for the value of the diminished fee, to a condition as nearly
comparable as possible to its condition immediately preceding such condemnation
or conveyance, and rent shall xxxxx in the ratio that the area of Leased
Premises condemned or conveyed bears to the total area of Leased Premises before
such condemnation or conveyance.
8.3. Condemnation of Entire Premises
If any part of Entire Premises shall be condemned by eminent domain
or shall be conveyed by Landlord in lieu of such condemnation for any public or
quasi-public use or purpose and the remainder of Entire Premises after such
conveyance or condemnation shall be
19
unsuitable, in the opinion of Landlord, for continued operation as an integral
unit. Landlord may elect to treat such condemnation or conveyance as a
condemnation or conveyance of the whole of Leased Premises under the terms of
Section 8.1. If Landlord does not elect the foregoing option, this Lease shall
continue without any right on the part of Tenant to claim any reduction in rent
or other payments due hereunder by reason of the reduction in size of Entire
Premises.
8.4. Awards
If Leased Premises or the rights of Tenant under this Lease shall
be affected in any way by any condemnation or conveyance in lieu thereof. Tenant
waives all claims of any nature whatsoever against Landlord and assigns to
Landlord all claims of any nature against the condemning authority arising by
reason of such condemnation or conveyance in lieu thereof, including without
limitation all claims for loss of Tenant's leasehold estate. Notwithstanding the
foregoing. Tenant may file such claims with the condemning authority as may be
permitted by applicable law for removal expenses, business dislocation damages,
and moving expenses but only so long as such claims do not reduce any award
otherwise payable to Landlord.
9. ASSIGNMENT AND SUBLETTING
9.1. Transfer, Assignment and Subletting
9.1.1. In this Section, the word "Transfer" means any of the
following whether accomplished voluntarily, involuntarily, by operation of law
or by other means: (1) the assignment of any interest in this Lease; (2) the
subletting of all or any part of the Leased Premises; (3) the grant to anyone
other than Tenant of a license or other right to use all or any part of the
Leased Premises; or (4) a mortgage, pledge or grant of any security interest in
this Lease or in the Leased Premises, but excluding any assignment or sublet to
any parent or majority-owned subsidiary, any successor by virtue of a merger,
consolidation or corporate reorganization, or the purchaser of substantially all
of the assets of Tenant provided that (i) the successor to Tenant has a net
worth computed in accordance with generally accepted accounting principals at
least equal to the greater of (1) the net worth of Tenant immediately prior to
such merger, consolidation or transfer, or (2) the net worth of Tenant herein
named on the date of this Lease, and (ii) proof reasonably satisfactory to
Landlord of such net worth shall have been delivered to Landlord at least ten
(10) days prior to the effective date of any such transaction.
9.1.2. Tenant shall not make, permit or suffer any Transfer or
Transfers without Landlord's written consent which shall not be unreasonably
withheld. Landlord may impose any conditions Landlord desires to the grant of
consent to any Transfer. The grant of consent lo any Transfer shall not waive
the foregoing limitation and right of Landlord as to any future additional
Transfer or Transfers all of which shall not be made without similar consent of
Landlord.
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9.1.3. Following any Transfer, Tenant shall remain primarily and
directly liable to Landlord for the performance of all the terms of this Lease.
9.1.4. All net profits accruing to Tenant, directly or
indirectly, from any Transfer shall be paid to Landlord as additional rent.
9.2. "Landlord"
The word "Landlord" when used in this Lease shall mean the owner
from time to time of the Lessor's interest in this Lease. If the interest or
estate of Landlord in Leased Premises shall terminate by operation of law or by
a sale of the Entire Premises or the Leased Premises or by execution or
foreclosure sale or for any other reason, or if any third party becomes entitled
to collect and receive rent under this Lease, Landlord shall be released and
relieved from all liability accruing thereafter under this Lease. Landlord's (or
any successor's) liability under this Lease shall be limited to its interest in
the Entire Premises. The liability of any partnership joint venture or other non
corporate owner of Landlord's interest shall be so limited without direct or
personal liability on the part of any partners, joint venturers, shareholders or
other parties participating therein.
10. SUBORDINATION AND QUIET ENJOYMENT
10.1. Subordination
This Lease and all of the terms, covenants and conditions hereof
is and automatically shall be subject and subordinate to any mortgage or
mortgages and to any prior leases affecting Leased Premises or Entire Premises
or any part of either of them. However, if any mortgagee or prior lessor so
requests. Tenant shall execute, acknowledge and deliver an agreement in form and
content satisfactory to such mortgagee or prior lessor subordinating such
mortgage to this Lease, and agreeing to attorn to such mortgagee or prior
lessor, or both. Upon written request from Tenant, Landlord shall reasonable
efforts to obtain from any mortgagee under any mortgage recorded after the date
hereof a Subordination, Non-Disturbance and Attornment, provided that Tenant
pays all of Landlord's reasonable out of pocket costs therefore,
10.2. Estoppel Certificate
At any time, and from time to time, upon the written request of
Landlord or any mortgagee. Tenant, within ten (10) business days of the date of
such written request, agrees to execute and deliver to Landlord and/or such
mortgagee, without charge and in a form satisfactory to Landlord and/or such
mortgagee, a written statement: (a) ratifying this Lease; (b) confirming the
commencement and expiration dates of the term of this Lease; (c) certifying that
Tenant is in occupancy of the Demised Premises, and that the Lease is in full
force and effect and has not been modified, assigned, supplemented or amended
except by such writings and in such manner as shall be stated; (d) certifying
that all conditions and agreements under this Lease to be
21
satisfied or performed by Landlord have been satisfied or performed except
as shall be stated; (e) certifying that Landlord is not in default under the
Lease and that there are no defenses or offsets against the enforcement of
this Lease by Landlord, or staring the defaults and/or defenses claimed by
Tenant; (f) reciting the amount of advance rent, if any, paid by Tenant and
the date to which such rent has been paid; (g) reciting the amount of
security deposited with Landlord, if any; (h) certifying compliance with the
environmental covenants of the Lease as set forth in this Lease; and (i)
including any other information which Landlord or mortgagee might reasonably
require.
10.3. Quiet Enjoyment
Subject to the express provisions of this Lease and upon payment
of the rents and performance of all the other covenants, terms and conditions of
this Lease, Tenant shall peaceably and quietly hold and enjoy Leased Premises
for the term herein specified.
11. RIGHTS OF LANDLORD
11.1. Right of Entry
Landlord or Landlord's agents or such persons as Landlord may
authorize may enter Leased Premises at all reasonable times for purposes of
examination, exposition to prospective purchasers or lessees of Leased Premises
or Entire Premises and making of repairs, alterations, improvements and
additions to Leased Premises or Entire Premises all as Landlord may deem
necessary or desirable. Landlord may take into Leased Premises all material that
may be required to make such repairs, alterations, improvements or additions. No
such entry upon Leased Premises shall be deemed an eviction of Tenant in whole
or in part and the rent reserved in this Lease shall not xxxxx in whole or in
part while any such repairs, alterations, improvements or additions are being
made by Landlord. Landlord shall not be liable to Tenant for any damage,
decrease or loss of business occurring either during or after the making of any
such repairs, alterations, improvements or additions. During the six (6) month
period prior to the expiration of the term of this Lease or any renewal thereof.
Landlord may exhibit Leased Premises to prospective tenants or purchasers and
place upon Leased Premises "For Rent" or "For Sale" signs which Tenant shall
permit to remain upon Leased Premises without molestation. If Tenant or a
designee of Tenant shall not be present to open and permit entry into Leased
Premises at any time when such entry shall be necessary or permissible, Landlord
or its agents may enter Leased Premises by a master key or may forcibly enter
thereon, without rendering Landlord or such agent liable therefor and without
affecting the obligations and covenants of Tenant. The reservation of rights in
this Section shall not be construed as imposing upon Landlord any obligation,
responsibility or liability whatsoever for the care, maintenance or repair of
Entire Premises or of Leased Premises except as specifically provided in this
Lease. Notwithstanding the foregoing, except in the event of an emergency,
Landlord shall provide to Tenant at least twenty four (24) hours prior oral
notice before entering into the Leased Premises. Landlord shall use all
commercially reasonable efforts to minimize any interference with Tenant's
business operations
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11.2. Utilities and Conduits
Landlord may from time to time place conduits or other facilities
for utilities servicing other portions of Entire Premises over, across or
through such portions of Leased Premises not unreasonably interfering with the
appearance thereof or conduct of business therein by Tenant, as Landlord deems
necessary or advisable.
12. DEFAULT AND REMEDIES
12.1. Events ofDefault
The following shall be considered "Events of Default:"
The failure of Tenant to pay, any installment of rent or
additional rent or any other sum payable by Tenant under this Lease on or before
ten (10) days after such payment is due.
The failure to perform, violation or breach by Tenant of any of
the terms, covenants or conditions of this Lease, which failure, violation or
breach shall continue unremedied by Tenant for a period of twenty (20) days
after written notice thereof shall have been given to Tenant by Landlord, or for
such additional period as may be necessary to remedy such failure, violation or
breach with due diligence.
The abandonment by Tenant of Leased Premises or the removal or
attempted removal by Tenant, except in the ordinary course of business, of any
goods or property from Leased Premises without having paid and satisfied
Landlord in full for all rent and other charges then due or that may thereafter
become due until the expiration of the term of this Lease.
12.1.1. The insolvency of Tenant as evidenced by an assignment by
Tenant for the benefit of creditors, a petition in bankruptcy or for
reorganization or an arrangement under any bankruptcy or insolvency law being
filed voluntarily by Tenant, the adjudication of Tenant as a bankrupt, the
issuance by any court of an order for relief as to Tenant, the filing against
Tenant of a petition for appointment of a receiver of all or any part of
Tenant's assets or property either in bankruptcy or other insolvency
proceedings, unless such proceedings (but only to the extent such proceedings
are voluntary) shall be staid or dismissed within sixty (60) days of the filing
thereof, or the levy against any portion of the assets or property of Tenant by
the Sheriff or other designated authority of any governmental subdivision having
jurisdiction thereover. If an order for relief shall be granted, Tenant, or any
party claiming on behalf of Tenant, shall be deemed to have given adequate
assurances only if Landlord is reasonably assured that a party of substantial
financial strength will continue occupancy of Leased Premises, continue to pay
rent and in general be in a position to operate a business on the Leased
Premises in accordance with zoning and land use requests applicable to the
Entire Premises for a term of more than one year.
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12.2. Effect of an Event of Default
Upon the occurrence of any Event of Default, as a result thereof and
without entry or other action by Landlord:
12.2.1. The balance of all rent and other charges to become due
throughout the term hereof shall, at the option of Landlord, be accelerated and
shall be immediately due and payable, and Landlord may in its own name, but as
agent for Tenant, assign, sublet or relet Leased Premises for any period equal
to or greater or less than the remainder of the term hereof for any sum which
Landlord may deem reasonable to any lessee Landlord may select, and for any use
or purpose which Landlord may designate. If Landlord so sublets or assigns this
Lease, Tenant hereby irrevocably constitutes and appoints Landlord as Tenant's
agent to collect any rents due from such assignee or sublessee and apply the
same to the rent due hereunder without in any way affecting Tenant's obligation
to pay any unpaid balance of rent and other charges due hereunder. In the event
of such assignment or subletting, Landlord shall apply the rents received
therefrom to the obligation of Tenant hereunder until Landlord shall have
recovered in full all amounts due and owing from Tenant to Landlord together
with a service charge of ten percent (10%) to Landlord. Landlord shall be under
no obligation whatsoever, either to assign, sublet or relet Leased Premises, at
any time or upon any specific terms or conditions.
12.2.2. At the option of Landlord, this Lease and the term created
hereby shall cease and determine and become absolutely void without any right on
the part of Tenant to save the forfeiture by payment of any sum due or by other
performance of any term, covenant or condition broken or defaulted, whereupon
Landlord shall be entitled to recover damages for such event of default in an
amount equal to the amount of rent reserved for the balance of the term hereof,
less the fair rental value of Leased Premises for the balance thereof.
12.3. Remedies of Landlord
Upon the occurrence of any Event of Default, Landlord or anyone acting
on Landlord's behalf, at Landlord's option, may:
12.3.1. Without notice or demand enter the Leased Premises, breaking
open locked doors, if necessary, to effect entrance, without liability to action
or prosecution for damages for such entry or for the manner thereof, for the
purpose of distraining (to the extent permitted by law) or levying and for any
other purposes, and take possession of and sell all goods and chattels of Tenant
at auction, on three (3) days' notice served in person on Tenant or left on
Leased Premises, and retain the proceeds thereof on account of Tenant's
obligations hereunder; and Tenant hereby forever remises, releases and
discharges Landlord, and its agents, from all claims, actions, suits, damages,
and penalties, for or by reason or on account of any entry, distraint, levy,
appralsement or sale; or
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12.3.2. Enter Leased Premises and without demand proceed by
distress (if permitted by law) and sale of the goods of Tenant there found (or
by such other means as may then be permitted to enforce Landlord's lien) to levy
the rent or other charges herein payable as rent, and all costs and officers'
commission, including watchmen's wages and sums chargeable to Landlord, and
further including a sum equal to five percent (5%) of the amount of the levy as
commission to the constable or other person making the levy, shall be paid by
Tenant and in such case all costs, officers' commissions and other charges shall
immediately attach and become part of the claim of Landlord for rent, and any
tender of rent without said costs, commissions and charges made after the issue
of a warrant of distress shall not be sufficient to satisfy the claim of
Landlord. Tenant hereby expressly waives in favor of Landlord the benefit of all
laws now made or which may hereafter be made regarding any limitation as to the
goods upon which, or the time within which, distress (or any such other
procedure) is to be made after removal of goods, and further relieves Landlord
of its obligations of proving or identifying such goods, it being the purpose
and intent of this provision that all goods of Tenant in, on or about Leased
Premises shall be liable to distress for rent and subject to Landlord's lien.
Tenant authorizes the sale of any goods distrained for rent at any time after
five (5) days from said distraint without any appraisement or condemnation
thereof.
12.3.3. Lease Leased Premises or any part or parts thereof to
such person or persons for such rents and for such terms as may, in Landlord's
discretion, seem best without affecting Tenant's liability for any loss of rent
for the balance of the term.
12.3.4. TENANT HEREBY EMPOWERS ANY PROTHONOTARY OR ATTORNEY OF
ANY COURT OF RECORD TO APPEAR FOR TENANT IN ANY AND ALL ACTIONS WHICH MAY BE
BROUGHT FOR MINIMUM ANNUAL RENT AND ADDITIONAL RENT, INCLUDING THE CHARGES,
PAYMENTS, COSTS AND EXPENSES HEREIN RESERVED, OR HEREIN AGREED TO BE PAID BY
TENANT AND IN SAID SUITS TO CONFESS JUDGMENT AGAINST TENANT FOR ALL OR ANY PART
OF THE RENT SPECIFIED IN THIS LEASE AND THEN DUE AND UNPAID, AND OTHER CHARGES,
PAYMENTS, COSTS AND EXPENSES RESERVED AS RENT OR AGREED TO BE PAID BY TENANT AND
THEN DUE AND UNPAID, AND FOR INTEREST AND COSTS TOGETHER WITH A REASONABLE
ATTORNEY'S COMMISSION. SUCH AUTHORITY SHALL NOT BE EXHAUSTED BY ONE EXERCISE
THEREOF, BUT JUDGMENT MAY BE CONFESSED AS AFORESAID FROM TIME TO TIME AS OFTEN
AS ANY OF SAID RENT AND/OR OTHER CHARGES RESERVED AS RENT OR AGREED TO BE PAID
BY TENANT SHALL FALL DUE OR BE IN ARREARS. TENANT UNDERSTANDS THAT FOLLOWING
ENTRY OF SUCH JUDGMENT, LANDLORD MAY LEVY EXECUTION OR PROCEED IN ANY LAWFUL
MANNER LANDLORD DETERMINES TO ENFORCE SUCH JUDGMENT. TENANT, WITH FULL KNOWLEDGE
OF SUCH REMEDIES WAIVES ITS RIGHTS TO NOTICE THEREOF, EXCEPT AS SPECIFICALLY
PROVIDED IN THIS LEASE. TENANT ACKNOWLEDGES THAT SECTION 12.1 GRANTS TO TENANT
ADEQUATE GRACE AND NOTICE PERIODS AND TENANT ACCEPTS SUCH GRACE AND NOTICE
PROVISIONS AS SATISFYING ALL OF TENANT'S RIGHTS INCLUDING BUT NOT LIMITED TO ITS
CONSTITIONAL RIGHTS.
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12.3.5. 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 TO APPEAR AS ATTORNEY FOR TENANT AS WELL AS
FOR ALL PERSONS CLAIMING BY, THROUGH OR UNDER TENANT AND TO CONFESS JUDGMENT FOR
THE RECOVERY BY LANDLORD OF POSSESSION OF LEASED PREMISES, FOR WHICH THIS LEASE
SHALL BE ITS SUFFICIENT WARRANT, WHEREUPON, IF LANDLORD SO DESIRES, A WRIT OF
POSSESSION OR OTHER APPROPRIATE WRIT UNDER THE RULES OF CIVIL PROCEDURE THEN IN
EFFECT MAY ISSUE FORTHWITH (TENANT WAIVING ITS RIGHTS AS SET FORTH IN SECTION
12.3.4 ABOVE), WITHOUT ANY PRIOR WRIT OR PROCEEDINGS; PROVIDED, HOWEVER, IF FOR
ANY REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED, THE SAME SHALL BE
DETERMINED AND THE POSSESSION OF LEASED PREMISES HEREBY DEMISED REMAIN IN OR BE
RESTORED TO TENANT, LANDLORD SHALL HAVE THE RIGHT FOR THE SAME DEFAULT AND UPON
ANY SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON THE TERMINATION OF THIS LEASE UNDER
ANY OF THE TERMS OF THIS LEASE TO BRING ONE OR MORE FURTHER ACTION OR ACTIONS AS
HEREINBEFORE SET FORTH TO RECOVER POSSESSION OF LEASED PREMISES AND CONFESS
JUDGMENT FOR THE RECOVERY OF POSSESSION OF LEASED PREMISES AS HEREINABOVE
PROVIDED. OF POSSESSION OF LEASED PREMISES AS HEREINABOVE PROVIDED.
Tenant acknowledges that it has read and understood the foregoing
Section 12.3.4 and 12.3.5 has had an opportunity to discuss such Section with
councel.
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initial
12.3.6. In any action of ejectment and/or for rent in arrears,
landlord shall first cause to be filed in such action an affidavit made by it or
someone acting for it, setting forth the facts necessary to authorize the entry
of judgment, and, if a true copy of this Lease (and 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 th( contrary notwithstanding. Tenant hereby
releases to Landlord and to any and all attorneys who may appear for Tenant all
procedural errors in said proceedings and all liability thereof. If proceedings
shall be commenced by Landlord to recover possession under the Acts of Assembly
and Rules of Civil Procedure, either at the end of the term or earlier
termination of this Lease, or for non-payment of rent or any other reason.
Tenant specifically waives the right to the 3 months' notice and to the 15 or 30
days' notice required by the Landlord and Tenant Act of 1951, and agrees that 5
days' notice shall be sufficient in either or any such case.
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12.4. Cost of Enforcement
In connection with any breach by Tenant of any of its obligations
under this Lease, Tenant shall pay to Landlord, as additional rent upon demand,
all of Landlord's costs, charges and expenses including without limitation the
reasonable fees of counsel, agents and others retained by Landlord for the
enforcement of Tenant's obligations under this Lease and also any such costs,
charges, expenses or fees incurred by Landlord in any litigation in which
Landlord, without Landlord's fault becomes involved or concerned by reason of
this Lease or the relationship of Landlord and Tenant under this Lease.
12.5. Waiver of Notice and Right of Redemption
12.5.1. With the exception of the notices specifically provided
for in Section 12.1 of this Lease, Tenant waives all rights to legal notice
whether provided by statute or common law and agrees that five (5) days notice
of any proceedings to recover possession at any time shall be sufficient.
12.5.2. Tenant waives all rights of redemption granted by or
under any present or future laws in the event of Tenant being evicted or
dispossessed for any reason as provided in this Lease.
12.6. Cumulative Remedies
All of the remedies hereinbefore given to Landlord and all rights
and remedies given to it by law and equity shall be cumulative and concurrent.
No determination hereof or the taking or recovering of Leased Premises shall
deprive Landlord of any of its remedies or actions against Tenant for rent or
any and all other sums due at the time or which, under the terms hereof, would
in the future have become due if there had been no determination, nor shall the
bringing of any action for rent or for breach or default under any term,
condition or covenant, or the resort to any other remedy herein provided for the
recovery of rent, be construed as a waiver of the right to obtain possession of
the demised premises.
12.7. Landlord's Right to Enforce Strictly
Any law, usage or custom to the contrary notwithstanding.
Landlord shall have the right at all times to enforce all terms, conditions and
covenants hereof in strict accordance herewith, notwithstanding any conduct or
custom on the part of Landlord in refraining from so doing at any time or times.
Further, the failure of Landlord at any time or times to enforce its rights
hereunder strictly in accordance with the same shall not be construed as having
created a custom in any way or manner contrary to any specific term, condition
or covenant hereof, or as having in any way or manner modified the same.
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12.8. Security Agreement
This Lease shall be a Security Agreement under the Uniform
Commercial Code as enacted, effective and amended in Pennsylvania granting to
Landlord a security interest in and to all property of Tenant placed upon Leased
Premises. Tenant shall execute such financing statements and other documents as
may be required to grant and perfect such security interest. Notwithstanding the
foregoing, the lien and any security interest granted to Landlord in the
aforesaid sentence and under law, if any, shall be subordinate, without the need
for any further action, to any lien or security interest granted by Tenant to
any third-party in connection with any financing.
13. SECURITY DEPOSIT
13.1. Purpose of Deposit
The security deposit posted by Tenant under the terms of Section
1.06 of this Lease shall be held by Landlord or Landlord's Agent as security for
the faithful performance by Tenant of all of the terms, covenants, and
conditions of this Lease throughout the term and any extensions thereof. If at
any time during the term of this Lease any of the rent reserved in this Lease
shall be overdue and unpaid or any other sum payable by Tenant to Landlord under
this Lease shall be overdue and unpaid beyond any applicable cure period.
Landlord may, in its sole discretion and in addition to any other remedies
provided at law or in equity or by this Lease appropriate and apply any portion
of such deposit to the payment of any such overdue rent or other sum. Within
thirty (30) days after expiration of the term of this Lease, as such term might
be extended from time to time, Landlord shall refund such deposit, without
interest, less any reduction therein because of Event of Default on the part of
Tenant.
13.2. Use of Deposit
If an Event Of Default occurs. Landlord may at its sole
discretion in addition to any other right or remedy provided in this Lease or at
law or in equity, appropriate and apply so much of such deposit as may be
necessary to compensate Landlord for all loss or damage sustained or suffered by
Landlord by reason of such breach by Tenant. Should any part of such deposit be
appropriated and applied by Landlord for any reason. Tenant shall promptly upon
receipt of notice thereof, pay to Landlord such amounts as may be necessary to
restore such deposit to the amount set forth in Section 1.06. Tenant's failure
to maintain such deposit at the amount set forth in Section 1.06 shall
constitute a material breach of this Lease.
13.3. Transfer of Deposit
Upon any transfer of the Landlord's interest in this Lease to a
successor, Landlord may deliver the amount of such deposit to such successor
whereupon Landlord shall be relieved of any obligation to return such deposit to
Tenant and Tenant shall thereafter look to such successor for the performance of
all the terms of this Article.
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14. MISCELLANEOUS PROVISIONS
14.1. Brokers
Tenant represents that Tenant has dealt with no broker, agent,
finder or other intermediary in connection with this Agreement other than Xxxxx
X. Koziowski of DEKK Realty for whose commission Landlord shall be responsible
pursuant to the terms of a separate agreement. Tenant hereby agrees to
indemnify, defend and hold Landlord harmless of and from any and all
liabilities, suits or claims arising as a result of any claim by any other
broker agent, or intermediary claiming to have dealt with Tenant in connection
with this Lease,
14.2. Tenant
The word "Tenant" used in this Lease shall mean every person or
party named as Tenant in this Lease. Any notice given as provided in Section 1.8
shall bind all such parties and it shall have the same force as if given to all
of them. The use of the neuter singular pronoun to refer to Landlord and Tenant
shall be deemed a proper reference to either of them whether they be an
individual, a partnership or any form ofjoint venture.
14.3. Accord and Satisfaction
No acceptance by Landlord of an amount less than the monthly rent
and other payments stipulated to be due under this Lease shall be deemed to be
other than a payment on account of the earliest such rent or other payments then
due or in arrears nor shall any endorsement or statement on any check or letter
accompanying any such payment be deemed an Accord and Satisfaction. Landlord may
accept any check for payment by Tenant without prejudice to Landlord's right to
recover the remainder of any rent or other payment then in arrears and Landlord
may pursue any other remedy provided in this Lease. No acceptance by Landlord of
any payment of rent or other sum by Tenant shall be deemed a waiver of any of
the obligations of Tenant under this Lease.
14.4. Holding Over
Any holding over after the expiration of the term of this Lease,
with the consent of Landlord, shall at Landlord's option be construed to be a
tenancy either from month to month at the rent and other payments herein
specified and shall otherwise be subject to the conditions, covenants and
agreements of this Lease. If Tenant shall hold over without the consent of
Landlord after the termination of this Lease for any reason whatsoever, Tenant
shall pay as liquidated damages and not as a penalty an amount equal to 150% of
the prorated minimum rent for the period during which such holding over
continues, but the acceptance of such amount by
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Landlord shall be without prejudice to any other rights or remedies of Landlord
at law or in equity or under this Lease.
14.5. Recording
Tenant shall not record this Lease without the written consent of
Landlord. If requested by Landlord a memorandum or short-form Lease setting
forth only such items as are required to be set forth under the Laws of the
Commonwealth of Pennsylvania in effect at such time shall be executed by Tenant.
14.6. Delays
If either party to this Lease shall be delayed or prevented from
the performance of any obligation hereunder (other than the obligation of Tenant
to pay rent or additional rent when due) by reason of labor disputes, inability
to procure materials, failure of utility services, restrictive governmental laws
or regulations, riots, insurrection, war or other similar causes beyond the
control of such party, the performance of such act shall be excused for the
period of the delay. The provisions of this Section 14.6 shall not excuse Tenant
from the prompt payment of any sums payable under any of the provisions of this
Lease.
14.7. Entire Agreement
This Lease and the Exhibits and any Rider attached hereto and
sets forth the Entire Agreement between the Parties and there are no other
agreements expressed or implied, oral or written, except as herein set forth.
This Agreement may not be amended, altered or changed except in writing executed
by both of the parties hereto.
14.8. Captions
The Captions, Section numbers. Article numbers and Index
appearing in this Lease are inserted only for the convenience of the Parties and
shall not in any way affect the meaning or intent of any portion of this Lease.
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14.9. Partial Invalidity and Construction
The Sections of this Lease are intended to be severable. If any Section
or provision of this Lease shall be held to be unenforceable by any court of
competent jurisdiction, this Lease shall be construed as though such Section had
not been included in it. If any Section or provision of this Lease shall be
subject to two constructions, one of which would render such Section or
provision invalid, then such Section shall be given that construction which
would render it valid.
14.10. Successors
The provisions of this Lease shall be binding, upon the respective
Parties hereto and their respective heirs, administrators, successors and
assigns provided that this provision shall not be deemed the consent by Landlord
to any subletting or assignment by Tenant except as herein specifically
provided.
14.11. No Option
The submission of this Lease for examination by Tenant does not
constitute an option to Lease. This Lease shall become effective only upon
execution and delivery by Landlord and Tenant.
14.12 Option To Extend The Term Of The Lease
Provided the Lease shall then be in full force and effect and Tenant
shall not be in default in the performance and/or observance of any of the
terms, covenants and conditions by it to be performed and/or observed hereunder
beyond any applicable notice and cure periods, it is agreed that Tenant shall
have the option to extend the term of this Lease for one (1) additional period
of five (5) years following the expiration of the Term hereof on the same terms
and conditions herein contained, except that the Minimum Rent, due and payable
by Tenant shall increased by $0.50 per rentable square foot for year of the
extension option, If Tenant shall elect to so extend the term of this Lease
pursuant to this Section, Tenant shall give written notice to Landlord as
provided elsewhere in the Lease, at least six (6) months prior to the expiration
of the term of the Lease.
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This Lease consists of pages one (1) through thirty-two (32)
inclusive, together with Exhibit "A" which is attached hereto and made a part
hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Lease
the day and year first above written.
TENANT
Digital Descriptor Systems, Inc.
By: Xxxxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: VP & CEO
LANDLORD:
BT LINCOLN, L.P.
BY ITS SOLE GENERAL PARTNER
BT LINCOLN LLC
By: Xxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxx
Authorized Member
Exhibit A
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