EXHIBIT 10.40
DP OPERATING PARTNERSHIP, LP
STANDARD INDUSTRIAL LEASE For Landlord Use Only
(NET-NET-NET) Building #______
L/A: _____
1. LEASE TERMS.............................................................................................2
2. DEMISE AND POSSESSION...................................................................................3
3. BASE MONTHLY RENT.......................................................................................3
4. COMMON AREAS...........................................................................................4
5. ADDITIONAL RENT.........................................................................................5
6. SECURITY DEPOSIT........................................................................................6
7. USE OF PREMISES: QUIET CONDUCT.........................................................................6
8. PARKING.................................................................................................8
9. UTILITIES..............................................................................................8
10. ALTERATIONS, MECHANIC'S LIENS..........................................................................9
11. FIRE INSURANCE: HAZARDS AND LIABILITY INSURANCE.......................................................9
12. INDEMNIFICATION AND WAIVER OF CLAIMS..................................................................10
13. REPAIRS..............................................................................................10
14. AUCTIONS, SIGNS, AND LANDSCAPING.....................................................................11
15. ENTRY BY LANDLORD....................................................................................11
16. ABANDONMENT..........................................................................................11
17. DESTRUCTION..........................................................................................11
18. ASSIGNMENT, SUBLETTING AND TRANSFERS OF OWNERSHIP....................................................12
19. EVENTS OF DEFAULT....................................................................................13
20. REMEDIES OF LANDLORD.................................................................................14
21. SURRENDER OF LEASE NOT MERGER........................................................................16
22. ATTORNEYS FEES/COLLECTION CHARGES....................................................................17
23. CONDEMNATION.........................................................................................17
24. RULES AND REGULATIONS................................................................................17
25. ESTOPPEL CERTIFICATE.................................................................................17
26. SALE BY LANDLORD.....................................................................................18
27. NOTICES..............................................................................................18
28. WAIVER...............................................................................................18
29. HOLDOVER.............................................................................................18
30. DEFAULT OF LANDLORD/LIMITATION OF LIABILITY..........................................................18
31. SUBORDINATION........................................................................................18
32. DEPOSIT AGREEMENT....................................................................................19
33. GOVERNING LAW........................................................................................19
34. NEGOTIATED TERMS.....................................................................................19
35. SEVERABILITY.........................................................................................19
36. BROKERS..............................................................................................19
37. QUIET POSSESSION.....................................................................................19
38. MISCELLANEOUS PROVISIONS.............................................................................19
40. SPECIAL PROVISIONS...................................................................................20
41. RENEWAL OPTIONS......................................................................................20
42. RIGHT OF FIRST OFFER ON ADJACENT SPACE................................................................21
EXHIBIT "A": SITE PLAN......................................................ERROR! BOOKMARK NOT DEFINED.
EXHIBIT "B": PERFORMANCE SPECIFICATIONS.....................................ERROR! BOOKMARK NOT DEFINED.
EXHIBIT C: TENANT QUESTIONNAIRE.............................................ERROR! BOOKMARK NOT DEFINED.
EXHIBIT "D": RULES AND REGULATIONS..........................................ERROR! BOOKMARK NOT DEFINED.
EXHIBIT "F": SIGN CRITERIA..................................................ERROR! BOOKMARK NOT DEFINED.
EXHIBIT "G": MOVE OUT STANDARDS.............................................ERROR! BOOKMARK NOT DEFINED.
Lease Preparation Date: July 26, 2000
Landlord: DP OPERATING PARTNERSHIP, L.P., A DELAWARE LIMITED PARTNERSHIP,
LOCATED AT 1200 FINANCIAL BOULEVARD, P. O. BOX 7098, RENO, NEVADA 89510
Tenant: United Stationers Supply Co.
Trade Name (dba): United Stationers
1. LEASE TERMS
1.01 Premises: The Premises referred to in this Lease contain
approximately three hundred thirty thousand (330,000) square feet as shown on
Exhibit "A" attached. The address of the Leased Premises is: Blue Mountain
Logistics Park, 100 Blue Mountain Parkway, Harrisburg, (West Hanover
Township), Dauphin County, Pennsylvania 17112
1.02 Project: The Condominium Unit (Unit No. 1) of the Project in
which the Premises are located consists of approximately seven hundred
seventy thousand (770,000) square feet as shown in Exhibit A.
1.03 Tenant's Notice Address: Tenant's Notice Address is the
address of the Leased Premises as defined in Section 1.01 with a copy to
United Stationers Supply Co. Law Department, 2200 East Golf Road, Des
Plaines, IL, 60016.
1.04 Landlord's Notice Address: P. O. BOX 7098, RENO, NEVADA 89510
1.05 Tenant's Permitted Use: General warehouse and distribution
and approximately 10,000 square feet of ancillary office space.
1.06 Lease Term: The Lease Term is for ten (10) years and
commences on the Commencement Date, as hereinafter defined and expires
September 30, 2010.
1.07 Base Monthly Rent: One hundred seven thousand, five hundred
twenty-five dollars ($107,525.00) in lawful money of the United States of
America. Adjustments to the Base Monthly Rent shall be made annually. Rent
will increase two percent (2%) each year over the preceding years' rent. Base
monthly rent may also be adjusted under the provisions of Section 3.04 hereof.
1.08 Security Deposit: Intentionally deleted.
1.09 Proportionate Share: Tenant's Proportionate Share is 42.86%
based upon the total square footage of Unit 1 the Project and the square
footage of the Premises.
1.10 Commencement Date: The Commencement Date will be the date
when the office and warehouse areas are subject to a temporary certificate of
occupancy. Incomplete minor items in the office area, including but not
limited to, touch up items, unhung interior doors, incomplete cove bases, and
similar items will not delay the Commencement Date. The foregoing
notwithstanding, in the event the actions or inactions of Tenant, its
contractors, agents, or employees are the cause of a delay in obtaining
temporary certificates of occupancy, including any delay in Tenant approval
of Tenant Improvements beyond 12:00 noon, e.s.t. July 28, 2000, the
Commencement Date will be one day earlier than the aforesaid definition for
each day of delay caused by Tenant, its contractors, agents or employees.
Landlord agrees to provide Tenant with notice of the anticipated Commencement
Date at least two weeks prior to the date Landlord anticipates will be the
Commencement Date; however, Tenant acknowledges that the date Landlord
provides in such notice will be Landlord's good faith estimate and any
inaccuracy of such estimate will not affect the determination of the actual
Commencement Date. As of the date of execution of this Lease, Landlord
estimates the Commencement Date will be approximately September 21, 2000.
1.11 Parking: Tenant is entitled to one hundred twenty (120)
vehicle parking spaces in the area shown on Exhibit "A," plus parking for
twenty-one (21) semi-truck trailers of standard size, subject to the
provisions of Section 8 of the Lease.
1.12 Tenant Improvements: Tenant Improvements to be performed in
the Premises, if any, will be performed in accordance with the terms and
provisions entitled "Landlord's Work" contained in Exhibit "B" attached if
applicable. Thereafter during the Lease Term, Landlord will be under no
obligation to alter, change, decorate or improve the Premises.
1.13 Declaration: The Declaration of Condominium for Blue
Mountain Logistics Park Condominium recorded at Dauphin County Book 3623,
page 269, as amended at Dauphin County Book 3634, page 327.
2. DEMISE AND POSSESSION
2.01 Landlord leases to Tenant and Tenant leases from Landlord the
Premises described in 1.01. By entering the Premises, Tenant acknowledges
that it has examined the Premises and accepts the Premises in their present
condition subject to any additional work Landlord has agreed to do as stated
on Exhibit B if applicable. Landlord expressly reserves its right to lease
any other space available in the Project to whom ever it wishes, further
Tenant hereby acknowledges that it did not rely on any other tenant remaining
a tenant in the Project as a consideration for entering into this Lease.
2.02 If for any reason Landlord's estimate of the Commencement Date
set forth in Section 1.10 hereof is not accurate, Landlord shall not be
subject to any liability nor shall the validity of this Lease be effected.
However, Tenant, unless it is the cause of the delay, has the right to cancel
this Lease by written notification if the Commencement Date has not occurred
by March 21, 2001. Landlord may terminate this Lease by giving written notice
to Tenant if the Commencement Date has not occurred by March 21, 2001. In the
event that the Commencement Date does not occur on or before December 1, 2000
through no fault of Tenant, Tenant shall be entitled to one free day of rent
for each day beyond December 1, 2000 that the Commencement Date is delayed.
2.03 This Lease and all rights of Tenant hereunder are in all
respects subject and subordinate to the Declaration and to all the terms,
covenants and conditions thereof, including any rules and regulations of the
Condominium Association promulgated under the Declaration, and the Premises
shall be benefited by all of Landlord's rights and easements as owner of Unit
No. 1 under the Declaration. The terms, covenants, conditions, rights and
easements set forth in the Declaration are incorporated herein by reference
as if herein set forth at length. Tenant acknowledges and agrees that by
entering into this Lease, Tenant is not deemed to be a "Unit Owner" under the
Declaration and Tenant does not acquire any rights as a Unit Owner except as
specifically set forth in this Lease. Any default by Tenant under any
provision of the Declaration, after notice thereof and expiration of any cure
period provided under the Declaration, shall be a default under this Lease
and Landlord shall be entitled, without additional notice or cure period, to
exercise any rights or remedies against Tenant provided in this Lease for
default by Tenant hereunder for such default under the Declaration. In no
event shall Tenant have the right to use the Common Elements of the
Condominium as assignee of Landlord, nor to incur any obligation as Owner
which extends, beyond the expiration or earlier termination of the term of
this Lease.
2.04. Landlord agrees to utilize reasonable efforts to allow Tenant
access to about 50% of warehouse space, Tenant to supply it own temporary
utilities for set-up purposes as soon as construction permits, which Landlord
projects to be on or about August 1, 2000, provided no further Tenant changes
to construction. Any such access permitted by Landlord shall be limited as
Landlord may direct in its sole discretion, and in no event will any such
access be permitted to the extent such access impedes completion of
Landlord's Work. Tenant hereby waives and releases Landlord from any damage
to Tenant or Tenant's Property and Tenant shall indemnify and hold Landlord
harmless from all liability, loss or damage arising from or related to
Tenant's entry upon the Premises before the Commencement Date or the
performance of Tenant's Work, including without limitation the negligence or
intentional acts of Tenant or Tenant's employees, agents, contractors,
suppliers, agents, invitees and licensees.
3. BASE MONTHLY RENT
3.01 Base Monthly Rent: On the first day of every calendar month of
the Lease Term commencing on the Commencement Date (subject to the provisions
of Section 2.02 hereof), Tenant will pay, without deduction or offset, prior
notice or demand, Base Monthly Rent at the place designated by Landlord. In
the event the Commencement Date falls on a date other than the first of the
month, rent shall be prorated calculated using a thirty (30) day month. In
the event this Lease is to commence upon a date not ascertained on execution,
both parties agree to complete and execute a Commencement Date Certificate in
the form of Exhibit "E" within ten (10) days of the Commencement Date, if
applicable.
3.02 Adjustment: The Base Monthly Rent is subject to increase on the
first day of the 12TH calendar month following the Commencement Date
("Adjustment Month") and on the first day of each Adjustment Month thereafter
for the duration of the Lease Term. Beginning with the rent due on the first
day of the first Adjustment Month, and on the first day of each subsequent
Adjustment Month, the Base Monthly Rent as indicated in 1.07 will be
increased by two percent (2%) over the rent for the preceding period.
A. INTENTIONALLY LEFT BLANK.
B. INTENTIONALLY LEFT BLANK.
C. Landlord will give Tenant notice of such increase by written
invoice, however, failure of Landlord to give such notice shall not be
construed as a waiver of the increase and any such increase amount shall
accrue to the Rent.
3.03 Any installment of rent or any other charge payable which is
not paid within ten (10) days after it becomes due will be considered past
due and Tenant will pay to Landlord as Additional Rent a late charge equal to
the product of the variable Prime Rate "Prime", plus six percent (6%) per
annum as charged by Bank of America, Nevada; times the amount of such
installment amount due, or eighteen percent (18%) per annum of such
installment or the sum of twenty-five dollars ($25.00), whichever is greater,
for each month or fractional month transpiring from the date due until paid.
A twenty-five dollar ($25.00) handling charge will be paid by Tenant to
Landlord for each returned check and, thereafter, Tenant will pay all future
payments of rent or other charges due by money order or cashier's check. In
the event a late charge is assessed for three (3) consecutive rental periods,
whether or not it is collected, the rent shall without further notice become
due and payable quarterly in advance notwithstanding any provision of this
Lease to the contrary. If Tenant shall be served with a demand for the
payment of past due rent, any payments tendered thereafter to cure any
default by Tenant shall be made only by cashier's check. The foregoing
notwithstanding, Landlord and Tenant agree to reasonably cooperate in
instituting a wire transfer protocol for rent payment, with wire transfer
fees to be borne by Tenant.
3.04 The amount of the Base Monthly Rent includes allowances for
projected construction of Tenant's improvements as indicated on Exhibit "B"
attached. In the event that actual costs differ from the allowances, Tenant
shall either pay such increased costs upon invoice of Landlord or Landlord
will adjust the Base Monthly Rent according to the terms and conditions of
this Section, at Tenant's option. In the event Landlord's final costs are
greater than the allowances and Tenant does not elect to pay such increase to
Landlord immediately, Base Monthly Rent will be increased by the amount
necessary to amortize such increased costs over the Lease Term at an annual
interest rate of ten and one-half percent (10 1/2%) per annum. In the event
Landlord's final costs are less than the allowances, Base Monthly Rent will
be decreased by the amount necessary to amortize the amount of the decrease
over the Lease Term at an annual interest rate of ten and one-half percent
(10 1/2%). The foregoing notwithstanding, in the event Landlord's final costs
exceed allowances by greater than $200,000, Tenant shall immediately pay such
excess over $200,000 to Landlord upon demand by Landlord; Landlord will not
amortize any additional costs totaling greater than $200,000.00.
4. COMMON AREAS
4.01 Definitions: "Common Areas": "Common Area" is defined as all
areas and facilities outside the Premises and within the exterior boundary
line of the Project that are provided and designated by Landlord for the
non-exclusive use of Landlord, Tenant and other lessees of the Project and
their respective employees, agents, customers and invitees. Common Areas
include, but are not limited to: all parking areas, loading and unloading
areas, trash areas, roadways, sidewalks, walkways, parkways, driveways,
corridors, landscaped areas, conservation easements, wetlands, entry way,
pump room and any restrooms used in common by lessees. For the purposes of
this Lease, the term "Common Areas" shall have the same meaning as the term
"Common Elements" as that term is defined in the Declaration. Tenant
acknowledges that the Common Areas include Limited Common Elements serving
exclusively Unit #1 of the Project as well as Common Elements serving all the
Units in the Project, as more fully set forth in the Declaration.
4.02 So long as Tenant is not in default under the Lease beyond
curative periods, Tenant, its employees, agents, customers and invitees have
the non-exclusive right (in common with other Tenant, Landlord, and any other
person granted use by Landlord) to use of the Common Areas. Tenant agrees to
abide by and conform to, and to cause its employees, agents, customers and
invitees to abide by and conform to all rules and regulations established by
Landlord subject to provisions of paragraph 24.
4.03 Landlord has the right, in its sole discretion, from time to
time, to: 1) make changes to the Common Areas, including without limitation,
changes in the location, size, shape and number of driveways, entrances,
parking spaces, parking areas, ingress, egress, direction of driveways,
entrances, corridors parking areas and walkways; 2) close temporarily any of
the Common Areas for maintenance purposes so long as reasonable access to the
Premises remains available; 3) add additional buildings and improvements to
the Common Areas; 4) use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Project or any portion thereof;
do and perform any other acts
or make any other changes in, to or with respect to the Common Areas and
Project as Landlord may, in the exercise of sound business judgement, deem to
be appropriate.
4.04 Tenant acknowledges that it is leasing 42.86% of Unit 1, which
is one of several condominium units subject to the Declaration. To the extent
Operating Costs, as defined in Section 5.02 below, are attributable to the
Exclusive Maintenance Area for Unit No. 1, Tenant shall bear 42.86% of all
such costs. To the extent Unit 1 is subject to liability for Common Expenses
or Limited Common Expenses, or any other charges, pursuant to the
Declaration, Tenant shall bear 42.86% of Unit 1's liability therefore.
5. ADDITIONAL RENT
5.01 All charges payable by Tenant other than Base Monthly Rent are
called "Additional Rent". Unless this lease provides otherwise, Additional
Rent is to be paid with the next monthly installment of Base Monthly Rent and
is subject to the provisions of 3.03. The term "rent" whenever used in this
Lease means Base Monthly Rent and Additional Rent.
5.02 Operating Costs
A. "Operating Costs" are all costs and expenses of ownership,
operation, maintenance, management, repair and insurance incurred by Landlord
for the Project including, but not limited to the following: all supplies,
materials, labor and equipment, used in or related to the operation and
maintenance of the Common Areas; all utilities, including but not limited to:
water, electricity, gas, heating, lighting, sewer, waste disposal related to
the maintenance or operation of the Common Areas; all air-conditioning and
ventilating costs related to the maintenance or operation of the Project; all
Landlord's costs in managing, maintaining, repairing, operating and insuring
the Project, including, for example, clerical, supervisory, and janitorial
staff; all maintenance, management and service agreements, including but not
limited to, janitorial, security, trash removal related to the maintenance or
operation of the Project; all legal and accounting costs and fees for
licenses and permits related to the ownership and operation of the Project;
all insurance premiums and costs of fire, casualty, and liability coverage,
and rent abatement and any other type of insurance related to the Entire
Project, including any deductible for a loss attributable to the Premises;
all operation, maintenance and repair costs to the Common Areas, including
but not limited to, sidewalks, walkways, parkways, parking areas, loading and
unloading areas, trash areas, roadways, driveways, corridors, wetlands,
conservation areas, entryway and pump room, and landscaped area, including
for example, costs of resurfacing and restriping parking areas; all
maintenance and repair costs of building exteriors (including painting,
asphalt repair and replacement and roof maintenance, repair and replacement),
restrooms used in common by Tenant and signs and directories of the Project;
amortization (along with reasonable financing charges) of capital
improvements made to the Common Areas which may be required by any government
authority or which will improve the operating efficiency of the Project; a
reasonable reserve for repairs and replacement; and a fee equal to three
percent (3%) of the Base Monthly Rent for each month of the Lease Term for
Landlord's operation of the Common Areas. Operating Costs will not include
depreciation of the Project.
B. Tenant shall pay to Landlord Tenant's Proportionate Share of
the Operating Costs as indicated in 1.09. If there is a change in the square
footage of either the Project or the Premises during the term of this Lease
the Proportionate Share of the Tenant shall be adjusted accordingly. Such
payment shall be paid by Tenant with and in addition to the monthly payment
of Base Monthly Rent. Tenant shall, if Landlord so elects, pay to Landlord on
a monthly basis, in advance, the amount which Landlord reasonably estimates
to be Tenant's Proportionate Share of the Operating Costs. In the event of
such election by Landlord, Landlord shall periodically determine Tenant's
share of the actual Operating Costs, and in the event that the amount which
Tenant has paid to Landlord on account of the estimated Operating Costs is
less than his share of such actual Operating Costs, Tenant shall pay such
difference to Landlord on the next rent payment date. In the event that
Tenant has paid to Landlord more than his share of such actual Operating
Costs, the amount of such difference shall be credited against Tenant's
payments of Operating Costs next due or if such period is at the end of the
Lease term the amount of any overpayment shall be promptly refunded to Tenant.
C. Failure by Landlord to provide Tenant with a statement by
April 1st of each year shall not constitute a waiver by Landlord of its right
to collect Tenant's share of Operating Costs or estimates for a particular
calendar year; Landlord's right to charge Tenant for such expenses in
subsequent years is not waived.
D. Tenant shall have a reasonable right to audit Landlord's
records relative to CAM charges, provided any such audit shall be limited to
CAM charges incurred within one year of the audit request.
5.03 Taxes
A. "Real Project Taxes" are: (i) any fee, license fee, license
tax, business license fee, commercial rental tax, levy, charge, assessment,
penalty or tax imposed by any taxing authority against the Project; (ii) any
tax or fee on Landlord's right to receive, or the receipt of, rent or income
from the Project or against Landlord's business of leasing the Project, (iii)
any tax or charge for fire protection, streets, sidewalks, road maintenance,
refuse or other services provided to the Project by any governmental agency;
(iv) any tax imposed upon this transaction, or based upon a re-assessment of
the Project due to a change in ownership or transfer of all of part or
Landlord's interest in the Project; (v) any charge or fee replacing,
substituting for, or in addition to any tax previously included within the
definition of real property tax; and (vi) the Landlord's cost of any tax
protest relating to any of the above. Real Project Taxes do not, however,
include Landlord's federal or state income, franchise, inheritance or estate
taxes.
B. Tenant shall pay to Landlord Tenant's Proportionate Share of
the Real Project Taxes as indicated in 1.09. Such payment shall be paid by
Tenant annually upon being invoiced for such taxes in addition to the monthly
payment of Base Monthly Rent. Tenant shall, if Landlord so elects, pay to
Landlord on a monthly basis, in advance, the amount which Landlord reasonably
estimates to be Tenant's Proportionate Share of the Real Project Taxes. In
the event of such election by Landlord, Landlord shall periodically determine
Tenant's share of the actual Real Project Taxes, and in the event that the
amount which Tenant has paid to Landlord on account of the Real Project Taxes
is less than his share of such actual Real Project Taxes, Tenant shall pay
such difference to Landlord on the next rent payment date. In the event that
Tenant has paid to Landlord more than his share of such actual Real Project
Taxes, the amount of such difference shall be credited against Tenant's
payment of Real Project Taxes next due. If the Lease term is expired then
Landlord shall promptly refund any overpayment to Tenant.
C. Personal Property Taxes: Tenant will pay all taxes charged
against trade fixtures, furnishing, equipment or any other personal property
belonging to Tenant. Tenant will have personal property taxes billed
separately from the Project. If any of Tenant's personal property is taxed
with the Project, Tenant will pay Landlord the taxes for the personal
property upon demand by Landlord.
5.04 Based on Tenant's Proportionate Share defined in 1.09,
Tenant agrees to pay as Additional Rent to Landlord its share of any parking
charges, utility surcharges, occupancy taxes, or any other costs resulting
from the statutes or regulations, or interpretations thereof, enacted by any
governmental authority in connection with the use or occupancy of the Project
or the parking facilities serving the Project, or any part thereof.
5.05 Landlord by completing this paragraph may elect to have
Tenant pay a monthly estimate of the Additional Rent due from Tenant of
thirty-five cents (.35 (cent)) per square foot, i.e., nine thousand six
hundred twenty-five dollars ($9,625.00) per month. Landlord shall make
adjustments to this estimate based upon actual costs and projected future
costs. Landlord shall periodically determine the balance between actual
Additional Rent and Additional Rent paid by Tenant and make adjustments in
accordance with 5.02 and 5.03 above.
6. SECURITY DEPOSIT
Intentionally deleted.
7. USE OF PREMISES: QUIET CONDUCT
7.01 The Premises may be used and occupied only for Tenant's
Permitted Use as shown in 1.05 and for no other purpose, without obtaining
Landlord's prior written consent. Tenant will comply with all laws,
ordinances, orders and regulations affecting the Premises. Tenant will not
perform any act or carry on any practices that may injure the Project or the
Premises or be a nuisance or menace, or disturb the quiet enjoyment of other
lessees in the Project including but not limited to equipment which causes
vibration, use or storage of chemicals, or heat or noise which is not
properly insulated. Tenant will not cause, maintain or permit any outside
storage on or about the Premises. In addition, Tenant will not allow any
condition or thing to remain on or about the Premises which diminishes the
appearance or aesthetic qualities of the Premises and/or the Project or the
surrounding property. The keeping of a dog or other animal on or about the
Premises is expressly prohibited.
7.02 As used in this section, the term "Hazardous Waste" means:
A. Those substances defined as "hazardous substances", "hazardous
materials", "toxic substances", "regulated substances", or "solid waste" in the
Toxic Substance Control Act, 15 U.S.C.SECTION
2601 ET. SEQ., as now existing or hereafter amended ("TSCA"), the
Comprehensive Environmental Response, Compensation, and Liability Act of
1980, 42 U.S.C. SECTION 9601 ET. SEQ., as now existing or hereafter amended
("CERCLA"), the Resource, Conservation and Recovery Act of 1976, 42 U.S.C.
Section 6901 ET. SEQ., as now existing or hereafter amended ("RCRA"), the
Federal Hazardous Substances Act, 15 U.S.C. SECTION 1261 ET. SEQ., as now
existing or hereafter amended ("FHSA"), the Occupational Safety and Health
Act of 1970, 29 U.S.C. SECTION 651 ET. SEQ., as now existing or hereafter
amended ("OSHA"), the Hazardous Materials Transportation Act, 49 U.S.C.
SECTION 1801 ET. SEQ., as now existing or hereafter amended ("HMTA");
Hazardous Substances Cleanup Act, 35 Pa. C.S.A. SECTION 6020.101 ET. sEQ.
("HSCA"); the Clean Streams Law, 35 Pa. C.S.A. SECTION 691.1 ET. SEQ.; the
Solid Waste Management Act, 35 Pa. C.S.A. SECTION 6018.101 ET. SEQ.; the
Pennsylvania Storage Tank and Spill Prevention Act, Pa. Act No. 1989-32; and
the Pennsylvania Air Pollution Control Act, 35 Pa. C.S.A. SECTION 4001 ET.
SEQ., and the rules and regulations now in effect or promulgated hereafter
pursuant to each law referenced above;
B. As used herein, the term "hazardous substances" means any and all
elements, compounds, chemical mixtures, contaminants, pollutants or other
substances identified as "hazardous substances" under CERCLA or HSCA or any
comparable statutes and regulations of the Commonwealth of Pennsylvania, or
any petroleum or petroleum products, or asbestos. As used herein, the term
"release" means any spilling, leaking, pumping, admitting, emptying,
discharging, injecting, escaping, leaching, dumping, discarding, burying,
abandoning or disposing into the environment at or about the Premises on or
prior to the termination or expiration of this Lease. Those substances
defined as "hazardous waste", "hazardous material", or "regulated substances"
in Nev. Rev. Stat. ch 459, 1989 Nev. Stat. ch. 598 and 1989 Nev. Stat. ch
363, or in the regulations now existing or hereafter promulgated pursuant
thereto or in the Uniform Fire Code, 1988 edition;
C. Those substances listed in the United States Department of
Transportation table (49 CFR SECTION. 172.101 and amendments thereto) or by
the Environmental Protection Agency (or any successor agency) as hazardous
substances (40 CFR Part 302 and amendments thereto); and
D. Such other substances, mixtures, materials and waste which are
regulated under applicable local, state or federal law, or which are
classified as hazardous or toxic under federal, state or local laws or
regulations (all laws, rules and regulations referenced in paragraphs (a),
(b), (c) and (d) are collectively referred to as "Environmental Laws").
7.03 Tenant's Covenants. Tenant does not intend to and Tenant will
not, nor will Tenant allow any other person (including partnerships,
corporations and joint ventures), during the term of this Lease to
manufacture, process, store, distribute, use, discharge or dispose of any
Hazardous Waste in, under or on the Project, the Common Areas, or any
property adjacent thereto.
A. Tenant shall notify Landlord promptly in the event of any spill
or release of Hazardous Waste into, on, or onto the Project regardless of the
source of spill or release, whenever Tenant knows or suspects that such a
release occurred.
B. Tenant will not be involved in operations at or near the Project
which could lead to the imposition on the Tenant or the Landlord of liability
or the creation of a lien on the Project, under the Environmental Laws.
C. Tenant shall, upon twenty-four (24) hour prior notice by Landlord
(or such lesser notice as is reasonable during an emergency), permit Landlord
or Landlord's agent access to the Project to conduct an environmental site
assessment with respect to the Project. Landlord shall conduct such
assessment during ordinary business hours, except for emergencies.
7.04. Indemnity. Tenant for itself and its successors and assigns
undertakes to protect, indemnify, save and defend Landlord, its agents,
employees, directors, officers, shareholders, affiliates, consultants,
independent contractors, successors and assigns (collectively the
"Indemnitees") harmless from any and all liability, loss, damage and expense,
including reasonable attorneys' fees, claims, suits and judgments that
Landlord or any other Indemnitee, whether as Landlord or otherwise, may
suffer as a result of, or with respect to:
A. The violation by Tenant or Tenant's agents, employees, invitees,
licensees or contractors of any Environmental Law, including the assertion of
any lien thereunder and any suit brought or judgment rendered regardless of
whether the action was commenced by a citizen (as authorized under the
Environmental Laws) or by a government agency;
B. To the extent caused, directly or indirectly by Tenant or
Tenant's agents, employees, invitees, licensees or contractors, any spill or
release of or the presence of any Hazardous Waste affecting the Project
whether or not the same originates or emanates from the Project or any
contiguous
real estate, including any loss of value of the Project as a result of a
spill or release of or the presence of any Hazardous Waste;
C. To the extent caused, directly or indirectly by Tenant or
Tenant's agents, employees, invitees, licensees or contractors, any other
matter affecting the Project within the jurisdiction of the United States
Environmental Protection Agency, the Commonwealth of Pennsylvania Department
of Environmental Protection, including costs of investigations, remedial
action, or other response costs whether such costs are incurred by the United
States Government, the Commonwealth of Pennsylvania, or any Indemnitee;
D. To the extent caused, directly or indirectly by Tenant or
Tenant's agents, employees, invitees, licensees or contractors, liability for
clean-up costs, fines, damages or penalties incurred pursuant to the
provisions of any applicable Environmental Law; and
E. To the extent caused, directly or indirectly by Tenant or
Tenant's agents, employees, invitees, licensees or contractors, liability for
personal injury or property damage arising under any statutory or common-law
tort theory, including, without limitation, damages assessed for the
maintenance of a public or private nuisance, or for the carrying of an
abnormally dangerous activity, and response costs.
7.05 Remedial Acts. In the event of any spill or release of or the
presence of any Hazardous Waste affecting the Project, caused by Tenant, its
employees, agents, invitees, licensees, or contractors, whether or not the
same originates or emanates from the Project or any contiguous real estate,
and/or if Tenant shall fail to comply with any of the requirements of any
Environmental Law, Landlord may, without notice to Tenant, at its election,
but without obligation so to do, gives such notices and/or cause such work to
be performed at the Project and/or take any and all other actions as Landlord
shall deem necessary or advisable in order to remedy said spill or release of
Hazardous Waste or cure said failure of compliance and any amounts paid as a
result thereof, together with interest at the rate equal to the product of
the variable Prime Rate "Prime", plus six percent (6%) per annum as charged
by Bank of America, Nevada; times the amount of such installment amount due,
or eighteen percent (18%) per annum of such installment or the sum of
twenty-five dollars ($25.00), whichever is greater, for each month or
fractional month transpiring from the date due until paid.
7.06 Settlement. Landlord upon giving Tenant ten (10) days prior
notice, shall have the right in good faith to pay, settle or compromise, or
litigate any claim, demand, loss, liability, cost, charge, suit, order,
judgment or adjudication under the belief that it is liable therefor, whether
liable or not, without the consent or approval of Tenant unless Tenant within
said ten (10) day period shall protest in writing and simultaneously with
such protest deposit with Landlord collateral satisfactory to Landlord
sufficient to pay and satisfy any penalty and/or interest which may accrue as
a result of such protest and any judgment or judgments as may result,
together with attorney's fees and expenses, including, but not limited to,
environmental consultants.
8. PARKING
8.01 Tenant and Tenant's customers, suppliers, employees, and
invitees have the exclusive right to park in the parking facilities as
designated by Landlord. Landlord will not designate any of Tenant's parking
areas as available to any other lessee in the Project, but Tenant
acknowledges that Landlord has no obligation to police the parking areas to
prevent their use by other lessees. Landlord reserves the right to, on an
equitable basis, assign specific spaces with or without charge to Tenant as
Additional Rent, make changes in the parking layout from time to time, and to
establish reasonable time limits on parking.
9. UTILITIES
9.01 Tenant will be responsible for and shall pay for all water,
gas, heat, light, power, sewer, electricity, or other services metered,
chargeable to or provided to the Premises separate from and in addition to
the costs outlined in Section 5.02 dealing with the utility costs for Common
Area Maintenance. Landlord reserves the right to install separate meters for
any such utility, at the cost of tenant.
9.02 Landlord will not be liable or deemed in default to Tenant nor
will there be any abatement of rent for any interruption or reduction of
utilities or services not caused by any act of Landlord or any act reasonably
beyond Landlord's control. Tenant agrees to comply with energy conservation
programs implemented by Landlord by reason of enacted laws or ordinances.
9.03 Tenant will contract and pay for all telephone and such other
services for the Premises subject to the provisions of 10.03.
10. ALTERATIONS, MECHANIC'S LIENS
10.01 Tenant will not make any alterations to the Premises without
Landlord's prior written consent, except that Tenant may make nonstructural
interior improvements not exceeding $25,000 in cost and not involving
penetration of the roof, floor or weight-bearing walls. Tenant further agrees
to notify Landlord of all Tenant alterations notwithstanding the consent
limitation of the previous sentence. Landlord's consent to all alterations
shall be contingent upon Tenant providing Landlord with the following items
or information, all subject to Landlord's approval: (i) Tenant's contractor,
(ii) certificates of insurance by Tenant's contractor for commercial general
liability insurance with limits not less than $2,000,000 General Aggregate,
$1,000,000 Products/Complete Operations Aggregate, $1,000,000 Personal &
Advertising Injury, $1,000,000 Each Occurrence, $50,000 Fire Damage, $5,000
Medical Expense, $1,000,000 Auto Liability (Combined Single Limit, including
Hired/Non-Owned Auto Liability), Workers Compensation, including Employer's
Liability, as required by state statute endorsed to show Landlord as an
additional insured and for worker's compensation as required and (iii)
detailed plans and specifications for such work. Tenant agrees that it will
have its contractor execute a waiver of mechanic's lien and that Tenant will
remove any mechanic's lien placed against the Project within ten (10) days of
receipt of notice of lien. In addition, before alterations may begin, valid
building permits or other permits or licenses required must be furnished to
Landlord, and, once the alterations begin, Tenant will diligently and
continuously pursue their completion. At Landlord's option, any alterations
may become part of the realty and belong to Landlord. If requested by
Landlord, Tenant will pay, prior to the commencement of the construction, an
amount determined by Landlord necessary to cover the costs of demolishing
such alterations and/or the cost of returning the Premises to its condition
prior to such alterations. As a further condition to giving such consent,
Landlord may require Tenant to provide Landlord, at Tenant's sole cost and
expense, a payment and performance bond in form acceptable to Landlord, in a
principal amount not less than one and one-half times the estimated costs of
such alterations, to ensure Landlord against any liability for mechanic's and
materialmen's liens and to ensure completion of work. Tenant, at Landlord's
option, shall at Tenant's expense remove all alterations and repair all
damage to the Premises.
10.02 Notwithstanding anything in 10.01, Tenant may, without written
consent of Landlord, install trade fixtures, equipment, and machinery in
conformance with the ordinances of the applicable city and county, and they
may be removed upon termination of its Lease provided the Premises are not
damaged by their removal. The foregoing notwithstanding, (at the conclusion
of the original term or any executed renewal terms)Tenant shall either remove
the Mezzanine and repair all damages to the Premises caused by such removal
or leave the Mezzanine in place with no compensation therefor, at the option
of Landlord. In the event Tenant desires to leave the Mezzanine in place,
Tenant will request Landlord's permission to leave the Mezzanine in place not
more than ninety nor less than sixty days prior to Tenant's move out date.
Unless Landlord grants Tenant permission to leave the Mezzanine in place
within five days of the date of such request, or otherwise notifies Tenant
not to remove the Mezzanine, Tenant shall remove the Mezzanine prior to the
move out date.
10.03 Any private telephone systems and/or other related
telecommunications equipment and lines must be installed within Tenant's
Premises and, upon termination of this Lease removed and the Premises
restored to the same condition as before such installation.
10.04 Tenant will pay all costs for alterations and will keep the
Premises, the Project and the underlying property free from any liens arising
out of work performed for, materials furnished to or obligation incurred by
Tenant.
10.05 Landlord will have the right to construct or permit
construction of tenant improvements in or about the Project for existing and
new Tenant and to alter any public areas in and around the Project.
Notwithstanding anything which may be contained in this Lease, Tenant
understands this right of Landlord and agrees that such construction will not
be deemed to constitute a breach of this Lease by Landlord and Tenant waives
any such claim which it might have arising from such construction.
11. FIRE INSURANCE: HAZARDS AND LIABILITY INSURANCE
11.01 Except as expressly provided as Tenant's Permitted Use, or as
otherwise consented to by Landlord in writing, Tenant shall not do or permit
anything to be done within or about the Premises which will increase the
existing rate of insurance on the Project and shall, at its sole cost and
expense, comply with any requirements, pertaining to the Premises, of any
insurance organization insuring the Project and Project-related apparatus.
Tenant agrees to pay to Landlord, as Additional Rent, any
increases in premiums on policies resulting from Tenant's Permitted Use or
other use consented to by Landlord which increases Landlord's premiums or
requires extended coverage by Landlord to insure the Premises.
11.02 Tenant, at all times during the term of this Lease and at
Tenant's sole expense, will maintain a policy of standard fire and extended
coverage insurance with "all risk" coverage on all Tenant's improvements and
alterations in or about the Premises and on all personal property and
equipment to the extent of at least ninety percent (90%) of their full
replacement value. The proceeds from this policy will be used by Tenant for
the replacement of personal property and equipment and the restoration of
Tenant's improvements and/or alterations. This policy will contain an express
waiver, in favor of Landlord, of any right of subrogation by the insurer.
11.03 Tenant, at all times during the term on this Lease and at
Tenant's sole expense, will maintain a policy of commercial general liability
coverage with limits of not less than $2,000,000 combined single limit for
bodily injury and property damage insuring against all liability of Tenant
and its authorized representatives arising out of or in connection with
Tenant's use or occupancy of the Premises.
11.04 All insurance will name Landlord and/or Landlord's designated
partners and affiliates as an additional insured and will include an express
waiver of subrogation by the insurer in favor of Landlord and Tenant and will
release Landlord from any claims for damage to any person, to the Premises,
and to the Project, and to Tenant's personal property, equipment,
improvements and alterations in or on the Premises of the Project, caused by
or resulting from risks which are to be insured against by Tenant under this
Lease. All insurance required to be provided by Tenant under this Lease will
(a) be issued by an insurance company authorized to do business in the state
in which the Premises are located and which has and maintains a rating of A/X
in the Best's Insurance Reports or the equivalent, (b) be primary and
noncontributing with any insurance carried by Landlord, and (c) contain an
endorsement requiring at least thirty (30) days prior written notice of
cancellation to Landlord before cancellation or change in coverage, scope or
limit of any policy. Tenant will deliver a certificate of insurance or a copy
of the policy to Landlord within thirty (30) days of execution of this Lease
and will provide evidence of renewed insurance coverage at each anniversary,
and prior to the expiration of any current policies; however, in no event
will Tenant be allowed to occupy the Premises before providing adequate and
acceptable proof of insurance as stated above. Tenant's failure to provide
evidence of this coverage to Landlord may, in Landlord's sole discretion,
constitute a default under this Lease.
12. INDEMNIFICATION AND WAIVER OF CLAIMS
12.01 Tenant waives all claims against Landlord for damage to any
property in or about the Premises and for injury to any persons, including
death resulting therefrom, regardless of cause or time of occurrence. Tenant
will defend, indemnify and hold Landlord harmless from and against any and
all claims, actions, proceedings, expenses, damages and liabilities,
including attorney's fees, arising out of, connected with, or resulting from
any use of the Premises by Tenant, its employees, agents, visitors or
licensees, including, without limitation, any failure of Tenant to comply
fully with all of the terms and conditions of this Lease except for any
damage or injury which is the direct result of intentional acts by Landlord,
its employees, agents, visitors or licensees.
13. REPAIRS
13.01 Tenant shall, at its sole expense, keep and maintain the
Premises and every part thereof (excepting common use equipment, which
Landlord agrees to repair or replace pursuant to Section 5.02 unless damages
are due to the neglect or intentional acts of Tenant or its agents,
employees, visitors, or licensees), including interior windows, doors, plate
glass, any store fronts and the interior of the Premises, in good and
sanitary order, condition and repair. Tenant will, also, at its sole cost
keep and maintain all utilities, fixtures, plumbing and mechanical equipment
used by Tenant in good order and repair and furnish all expendables (light
bulbs, paper goods, soaps, etc.) used in the Premises. The standard for
comparison and need of repair will be the condition of the Premises at the
time of commencement of this Lease and all repairs will be made by a licensed
and bonded contractor approved by Landlord.
13.02 Tenant will not make repairs to the Premises at the cost of
Landlord whether by deductions of rent or otherwise, or vacate the Premises
or terminate the Lease if repairs are not made. If during the Term, any
alteration, addition or change to the Premises is required by legal
authorities, Tenant, at its sole expense, shall promptly make the same.
Landlord reserves the right to make any such repairs not made or maintained
in good condition by Tenant and Tenant shall reimburse Landlord for all such
costs upon demand.
13.03 If repairs deemed necessary by Landlord or any government
authority are not made by Tenant within the prescribed time frame as
requested in writing, such failure to repair shall be an Event of Default
subject to the provision of Section 19.01(B) hereof.
13.04 Tenant shall, at its own expense, within thirty days of lease
commencement, contract with a vendor acceptable to Landlord for the
maintenance service of the HVAC which will be furnished to the Landlord upon
request. If Tenant fails to obtain and maintain such a maintenance service
contract Landlord shall have the right to obtain such a maintenance service
contract at the expense of Tenant.
14. AUCTIONS, SIGNS, AND LANDSCAPING
14.01 Tenant will not conduct or permit to be conducted any sale by
auction on the Premises. Landlord will have the right to control landscaping
and approve the placement, size, and quality of signs pursuant to Exhibit
"F", "Sign Criteria". Tenant will not make alterations or additions to the
landscaping and will not place any signs nor allow the placement of any
signs, which are visible from the outside, on or about any building of the
Project, nor in any landscape area, without the prior written consent of
Landlord. Landlord will have the right in its sole discretion to withhold its
consent. Any signs not in conformity with this Lease or in accordance with
the provisions of Exhibit "F" may be removed by Landlord at Tenant's expense.
15. ENTRY BY LANDLORD
15.01 Tenant will permit Landlord and Landlord's agents to enter the
Premises at all reasonable times for the purpose of inspecting the same, or
for the purpose of maintaining the Project, or for the purpose of making
repairs, alterations or additions to any portion of the Project, including
the erection and maintenance of such scaffolding, canopies, fences and props
as may be required, or for the purpose of posting notices of
nonresponsibility for alterations, additions or repairs , or for the purpose
of showing the Premises to prospective Tenant during the last six months of
the Lease Term, or placing upon the Project any usual or ordinary "for sale"
signs, without any rebate of rents and without any liability to Tenant for
any loss of occupation or quiet enjoyment of the Premises thereby occasioned.
Tenant will permit Landlord at any time within sixty (60) days prior to the
expiration of this Lease, to place upon the Premises any usual or ordinary
"to let" or "to lease" signs. Tenant will not install a new or additional
lock or any bolt on any door of the Premises without the prior written
consent of Landlord, which will not be unreasonably withheld. If Landlord
gives its consent, such work shall be undertaken by a locksmith approved by
Landlord, at Tenant's sole cost. Landlord retains the right to charge Tenant
for restoring any altered doors to their condition prior to the installation
of the new or additional locks.
16. ABANDONMENT
16.01 Tenant will not vacate or abandon the Premises, which shall be
deemed to occur any time during the Lease Term if Tenant does not conduct
business for a period of fifteen (15) consecutive days and/or leaves the
Premises unoccupied for any period of time. If Tenant abandons, vacates or
surrenders the Premises, or is dispossessed by process of law, or otherwise,
any personal property belonging to Tenant left in or about the Premises will,
at the option of Landlord be deemed abandoned and may be disposed of by
Landlord in the manner provided for by the laws of the state in which the
Premises are located.
17. DESTRUCTION
17.01 In the case of total destruction of the Premises, or any
portion thereof substantially interfering with Tenant's use of the Premises,
whether by fire or other casualty, not caused by the fault or negligence of
Tenant, its agents, employees, servants, contractors, subtenant, licensees,
customers or business invitees, this Lease shall terminate except as herein
provided. If Landlord notifies Tenant in writing within forty-five (45) days
of such destruction of Landlord's election to repair said damage, and if
Landlord proceeds to and does repair such damage with reasonable dispatch,
this Lease shall not terminate, but shall continue in full force and effect,
except that Tenant shall be entitled to a reduction in the Base Monthly Rent
in an amount equal to that proportion of the Base Monthly Rent which the
number of square feet of floor space in the unusable portion bears to the
total number of square feet of floor space in the Premises. Said reduction
shall be prorated so that the rent shall only be reduced for those days any
given area is actually unusable. In determining what constitutes reasonable
dispatch, consideration shall be given to delays caused by labor disputes,
civil commotion, war, warlike operations, invasion, rebellion, hostilities,
military or usurped power, sabotage, governmental regulations
or control, fire or other casualty, inability to obtain any materials or
services, acts of God and other causes beyond Landlord's control. If this
Lease is terminated pursuant to this Section 17 and if Tenant is not in
default hereunder, rent shall be prorated as of the date of termination, any
security deposited with Landlord shall be returned to Tenant, less any
reasonable offsets and all rights and obligations hereunder shall cease and
terminate.
17.02. Notwithstanding the foregoing provisions, in the event the
Premises, or any portion thereof, shall be damaged by fire or other casualty
due to the fault or negligence of Tenant, its agents, employees, servants,
contractors, subtenant, licensees, customers or business invitees, then,
without prejudice to any other rights and remedies of Landlord, this Lease
shall not terminate, the damage shall be repaired at Tenant's cost, and there
shall be no apportionment or abatement of any rent.
17.03. In the event of any damage not limited to, or not including,
the Premises, such that the building of which the Premises is a part is
damaged to the extent of twenty-five (25%) percent or more of the cost of
replacement, or the buildings (taken in the aggregate) of the Project owned
by Landlord shall be damaged to the extent of more than twenty-five (25%) of
the aggregate cost of replacement, Landlord may elect to terminate this Lease
upon giving notice of such election in writing to Tenant within ninety (90)
days after the occurrence of the event causing the damage.
17.04. The provisions of this Section 17 with respect to Landlord
shall be limited to such repair as is necessary to place the Premises in the
condition specified after completion of Landlord's work as shown on Exhibit B
(if applicable) and when placed in such condition the Leased Property shall
be deemed restored and rendered tenantable promptly following which time
Tenant, at Tenant's expense shall perform Tenant's work required by Exhibit B
(if applicable) and Tenant shall also repair or replace its stock in trade,
fixtures, furniture, furnishings, floor coverings and equipment, and if
Tenant has closed, Tenant shall promptly reopen for business.
17.05. All insurance proceeds payable under any fire, and/or rental
insurance shall be payable solely to Landlord and Tenant shall have no
interest therein. Tenant shall in no case be entitled to compensation for
damages on account of any annoyance or inconvenience in making repairs under
any provision of this Lease. Except to the extent provided for in this
Section 17, neither the rent payable by Tenant nor any of Tenant's other
obligations under any provision of this Lease shall be affected by any damage
to or destruction of the Premises or any portion thereof by any cause
whatsoever.
18. ASSIGNMENT, SUBLETTING AND TRANSFERS OF OWNERSHIP
18.01 Tenant will not, without Landlord's prior written consent,
assign, sell, mortgage, encumber, convey or otherwise transfer all or any
part of Tenant's leasehold estate, or permit the Premises to be occupied by
anyone other than Tenant and Tenant's employees or sublet the premises or any
portion thereof (collectively called "Transfer"). Tenant must supply Landlord
with any and all documents deemed necessary by Landlord to evaluate any
proposed Transfer at least forty-five (45) days in advance of Tenant's
proposed Transfer date. Landlord will not unreasonably withhold consent
required under this section. The foregoing notwithstanding, Tenant may assign
its interest under this Lease to a wholly-owned subsidiary of Tenant, a
division of Tenant, a corporation in which Tenant owns greater than 50% of
the outstanding common stock or a corporation under common ownership with
Tenant without the consent of Landlord, provided such assignment will not
release Tenant from any of its obligations hereunder.
18.02 Landlord need not consent to any Transfer for reasons
including, but not limited to, whether or not: (a) in the reasonable judgment
of Landlord the transferee is of a character or is engaged in a business
which is not in keeping with the standard of Landlord for the Project; (b) in
the reasonable judgment of Landlord any purpose for which the transferee
intends to use the Premises is not in keeping with the standards of Landlord
for the Project; provided in no event may any purpose for which transferee
intends to use the Premises be in violation of this Lease; (c) the portion of
the Premises subject to the transfer is not regular in shape with appropriate
means of entering and exiting, including adherence to any local, county or
other governmental codes, or is not otherwise suitable for the normal
purposes associated with such a Transfer; or (d) Tenant is in default under
this Lease or any other Lease with Landlord.
18.03 In the event Landlord consents to a Transfer, Tenant will pay
Landlord one half of the excess, if any, of the rent and other charges
reserved in the Transfer over the allocable portion of the rent and other
charges hereunder for that portion of the Premises subject to the Transfer.
For the purpose of this section, the rent reserved in the Transfer will be
deemed to include any lump sum payment or other consideration given to Tenant
in consideration for the Transfer. Tenant will pay or cause the transferee to
pay to Landlord this additional rent together with the monthly installments
of rent due.
18.04 Any consent to any Transfer which may be given by Landlord, or
the acceptance of any rent, charges or other consideration by Landlord from
Tenant or any third party, will not constitute a waiver by Landlord of the
provisions of this Lease or a release of Tenant from the full performance by
it of the covenants stated herein; and any consent given by Landlord to any
Transfer will not relieve Tenant (or any transferee of Tenant) from the above
requirements for obtaining the written consent of Landlord to any subsequent
Transfer.
18.05 If a default under this Lease should occur while the Premises
or any part of the Premises are assigned, sublet or otherwise transferred,
Landlord, in addition to any other remedies provided for within this Lease or
by law, may at its option collect directly from the transferee all rent or
other consideration becoming due to Tenant under the Transfer and apply these
monies against any sums due to Landlord by Tenant; and Tenant authorizes and
directs any transferee to make payments of rent or other consideration direct
to Landlord upon receipt of notice from Landlord. No direct collection by
Landlord from any transferee should be construed to constitute a novation or
a release of Tenant or any guarantor of Tenant from the further performance
of its obligations in connection with this Lease.
18.06 If Tenant is a corporation or a partnership, the issuances of
any additional stock or equity interest and/or the transfer, assignment or
hypothecation of any stock or interest in such corporation or partnership in
the aggregate in excess of Twenty-five percent (25%) of such interests, as
the same may be constituted as of the date of this lease, whether directly or
indirectly, shall be deemed to be a Transfer within the meaning of this
Section 18.
18.07 In the event Tenant requests Landlord's consent to an
Assignment, Sub-Let or Transfer of Tenant's interest in the leased Premises,
Tenant agrees to pay Landlord all reasonable attorney's fees incurred by
Landlord for any legal services for document review of any and all documents
deemed necessary by Landlord and Tenant to Assign, Sub-let or Transfer
Tenant's interest in the leased Premises.
19. EVENTS OF DEFAULT
19.01 Events of Default. Any one or more of the following shall
constitute an "EVENT OF DEFAULT" under this Lease:
(A) Failure by Tenant to pay any installment of Basic Rent,
Additional Rent or of any other sum provided for under this Lease (whether or
not treated as Additional Rent hereunder) for a period of ten days from the
date such payment was due;
(B) Failure by Tenant to perform or observe in any material respect
any term, covenant, provision, condition or obligation contained in this
Lease which failure shall continue for a period of 15 days after written
notice thereof by Landlord to Tenant (or forthwith if the default involves a
hazardous or damaging condition); provided, however, that if Tenant's
obligation is of such a nature that more than 15 days are required for its
performance, then Tenant shall not be deemed to be in default hereunder if
Tenant shall commence such performance within said 15-day period and
thereafter proceeds diligently to prosecute the same to completion within the
30-day period following receipt of Landlord's notice;
(C) Any removal or attempted removal, without the prior
authorization of Landlord, of any of Tenant's fixtures, equipment, appliances
or personal property from the Premises for any reason other than in the
normal and usual operation of Tenant's business which evidences the intent of
Tenant to abandon the Premises;
(D) Abandonment of the Premises by Tenant as hereinafter defined in
Section 20.08;
(E) Failure by Tenant to vacate the Premises immediately upon
expiration or earlier termination of this Lease;
(F) Any levy or attachment upon the leasehold interest of Tenant
under this Lease;
(G) An assignment by Tenant for the benefit of creditors or the
appointment of a receiver for Tenant by legal proceedings or otherwise; or
(H) Institution of bankruptcy proceedings by Tenant, or institution
of bankruptcy proceedings against Tenant which are not withdrawn or dismissed
within 60 days after the institution of said proceedings; provided, however,
that, if a bankruptcy proceedings is commenced against Tenant and Tenant,
within 30 days of the commencement of same, challenges the commencement of
same and thereafter diligently pursues such challenge, then Tenant shall not
be deemed in default under this
paragraph unless and until the United States Bankruptcy Court enters an order
adjudicating such challenge.
20. REMEDIES OF LANDLORD
20.01 Acceleration of Rent; Lease Termination. If Tenant commits, or
allows an Event of Default to occur, the entire Rent for the remaining
balance of the Term shall, at Landlord's option, immediately become due and
payable as if by the terms of this Lease it were all payable in advance. In
such event, Landlord shall serve upon Tenant written notice of such
acceleration. At such time Landlord may also serve on Tenant written notice
as to the effective date of termination of this Lease or, at Landlord's
option, termination of Tenant's right to possession of the Premises without
terminating this Lease. In such event Tenant shall have no right to avoid
such termination by payment of any sum due or by the performance of any
condition, obligation, term or covenant broken, but immediately shall
surrender quiet and peaceable possession of the Premises to Landlord.
Notwithstanding any statute, rule of law or decision of any court to the
contrary, Tenant shall remain liable, even after termination of this Lease,
for Rent (including accelerated Rent) due or to become due hereunder and for
all damages caused by any or all of Tenant's non-payment defaults under this
Lease. Notwithstanding the foregoing, the provisions set forth in this
section concerning the acceleration of Rent shall not be applicable solely as
a consequence of Landlord's or Tenant's election to terminate this Lease
pursuant to the provisions hereof.
20.02 Right of Landlord to Perform. All covenants and agreements to
be performed by Tenant under any of the terms of this Lease shall be
performed by Tenant at Tenant's sole cost and expense and without any
abatement of rent. If Tenant shall fail to pay any sum of money, other than
Rent, required to be paid by it hereunder, or shall fail to perform any other
act on its part to be performed hereunder, and such failure shall continue
for 10 days after notice thereof by Landlord, Landlord may, but shall not be
obligated so to do, and without waiving or releasing Tenant from any
obligations of Tenant, make any such payment or perform any such act on
Tenant's part to be made or performed as in this Lease provided. All sums so
paid by Landlord and all necessary incidental costs, together with interest
thereon at the Agreed Interest Rate from the date of such payments by
Landlord, shall be payable as Additional Rent to Landlord on demand, and
Tenant covenants to pay any such sums, and Landlord shall have, in addition
to any other right or remedy of Landlord, the same rights and remedies in the
event of nonpayment thereof by Tenant as in the case of default by Tenant in
the payment of the Rent.
20.03 Reentry, Reletting. In case this Lease or Tenant's right to
possession of the Premises shall be terminated as aforesaid, then Landlord,
may, without notice, reenter the Premises, with or without the aid of legal
process, repossess the Premises, expel or remove Tenant and any others who
may be occupying or within the Premises and remove their property from the
Premises (without being deemed in any manner guilty of trespass, eviction or
forcible entry or detainer, and without incurring any liability for any
damage resulting therefrom, such claims for damages hereby waived by Tenant)
and terminate all services to Tenant, if any. If at any time, the Premises
become abandoned, Landlord may also proceed in accordance with Section 14.9.
Landlord may, but need not, use commercially reasonable efforts to attempt to
relet the Premises or any part thereof. Such reletting may at Landlord's
option be for a term which is less than or exceeds the period which would
otherwise have constituted the balance of the Term, and Landlord may grant
concessions or free rent or make improvements or additions to the Premises in
order to facilitate reletting of the same, so long as Landlord's actions are
commercially reasonable. Landlord shall not be required to accept any tenant
offered by Tenant or to observe any instructions given by Tenant about such
reletting. Landlord shall receive and collect all rents received from such
reletting (during the balance of the Term) and shall first apply such rents
against the expenses which Landlord may have incurred in recovering
possession of the Premises, placing the same in good order and condition for
re-letting and such other expenses (including brokers' commissions,
attorneys' fees and other legal costs) which Landlord may have incurred in
connection with such repossession and reletting, and apply the remaining
rentals as credits against all rentals due and owing from Tenant to Landlord.
The balance, if any, may be retained by Landlord. No such reentry by Landlord
shall be deemed to be an acceptance of surrender by Tenant of this Lease or
of the Premises.
20.04 Acceptance of Delinquent Rentals. The acceptance by Landlord
of delinquent rentals hereunder with knowledge of a breach by Tenant of any
covenant herein or condition broken shall not in and of itself be deemed a
waiver of such breach of condition broken, and any pending eviction
proceedings or actions for monetary damages may be prosecuted further by
Landlord without prejudice based upon this action alone.
20.05 CONFESSION OF JUDGMENT.
(A) MONEY JUDGMENT: FOR VALUE RECEIVED AND UPON THE OCCURRENCE OF
AN EVENT OF DEFAULT HEREUNDER, TENANT DOES HEREBY EMPOWER ANY ATTORNEY OF ANY
COURT OF RECORD WITHIN THE COMMONWEALTH OF PENNSYLVANIA, TO APPEAR FOR TENANT
AND, WITH OR WITHOUT COMPLAINT FILED, CONFESS JUDGMENT AGAINST TENANT AND IN
FAVOR OF LANDLORD, ITS SUCCESSORS OR ASSIGNS, IN THE COMMONWEALTH OF
PENNSYLVANIA, FOR THE SUM DUE BY REASON OF SAID DEFAULT IN THE PAYMENT OF
RENT AND OTHER SUMS, INCLUDING ACCELERATED RENT, AND FOR THE SUM DUE BY
REASON OF ANY BREACH OF COVENANT OR CONDITION BROKEN BY TENANT, WITH COSTS OF
SUIT AND ATTORNEY'S COMMISSION OF 10 PERCENT FOR COLLECTION, AND FORTHWITH
ISSUE A WRIT OR WRITS OF EXECUTION THEREON WITH RELEASE OF ALL ERRORS AND
WITHOUT STAY OF EXECUTION.
(B) JUDGMENT IN EJECTMENT: FOR VALUE RECEIVED AND UPON THE
OCCURRENCE OF AN EVENT OF DEFAULT HEREUNDER, OR UPON EXPIRATION OR EARLIER
TERMINATION OF THE TERM OF THIS LEASE AND THE FAILURE OF TENANT TO DELIVER
POSSESSION TO LANDLORD, TENANT FURTHER AUTHORIZES AND EMPOWERS ANY SUCH
ATTORNEY (EITHER IN ADDITION TO OR WITHOUT SUCH JUDGMENT FOR THE AMOUNT DUE
ACCORDING TO THE TERMS OF THIS LEASE) TO APPEAR FOR TENANT AND ANY OTHER
PERSON CLAIMING UNDER, BY OR THROUGH TENANT, AND CONFESS JUDGMENT FORTHWITH
AGAINST TENANT AND SUCH OTHER PERSONS AND IN FAVOR OF LANDLORD IN AN AMICABLE
ACTION OF EJECTMENT FOR THE PREMISES FILED IN THE COMMONWEALTH OF
PENNSYLVANIA, WITH RELEASE OF ALL ERRORS. LANDLORD MAY FORTHWITH ISSUE A WRIT
OR WRITS OF EXECUTION FOR POSSESSION OF THE PREMISES AND AT LANDLORD'S
OPTION, FOR THE AMOUNT OF ANY JUDGMENT, AND ALL COSTS, WITHOUT LEASE OF
COURT, AND LANDLORD MAY, BY LEGAL PROCESS, WITHOUT NOTICE REENTER AND EXPEL
TENANT FROM THE PREMISES, AND ALSO ANY PERSONS HOLDING UNDER TENANT.
(C) THE TWO PRECEDING PARAGRAPHS SET FORTH WARRANTS OF AUTHORITY
FOR AN ATTORNEY, PROTHONOTARY OR CLERK TO CONFESS JUDGMENT AGAINST TENANT. IN
GRANTING THIS WARRANT OF ATTORNEY TO CONFESS JUDGMENT, TENANT HEREBY
KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, AND, AFTER CONSULTATION WITH LEGAL
COUNSEL OF ITS OWN CHOOSING, UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS IT HAS
OR MAY HAVE TO PRIOR NOTICE, AND AN OPPORTUNITY FOR PRIOR HEARING UNDER THE
CONSTITUTIONS AND LAWS OF THE UNITED STATES OF AMERICA, THE COMMONWEALTH OF
PENNSYLVANIA AND ALL OTHER APPLICABLE JURISDICTIONS. TENANT UNDERSTANDS THE
MEANING AND EFFECT OF THE WARRANT OF AUTHORITY TO CONFESS JUDGMENT.
SPECIFICALLY, TENANT UNDERSTANDS, AMONG OTHER THINGS, THAT (1) TENANT IS
RELINQUISHING THE RIGHT TO HAVE NOTICE, AND AN OPPORTUNITY TO BE HEARD, AND
THE RIGHT TO HAVE THE BURDEN OF PROOF OF DEFAULT REST ON TENANT PRIOR TO THE
ENTRY OF JUDGMENT, (2) THE ENTRY OF JUDGMENT MAY RESULT IN A LIEN ON TENANT'S
PROPERTY, AND (3) TENANT'S PROPERTY MAY BE TAKEN TO PAY THE PRINCIPLE AMOUNT,
INTEREST, LATE CHARGES, COSTS AND ATTORNEY'S FEES AS PROVIDED ABOVE.
20.06 Cumulative Remedies. All of Landlord's rights and remedies
herein set forth (as well as those provided for at law and in equity) shall
be cumulative and not exclusive and may be pursued simultaneously or
separately at the sole option of Landlord. The pursuit of any remedy shall
not constitute a waiver or forfeiture of any Rent or other sum due to
Landlord hereunder or any damages accruing to Landlord by reason of the
violation of any of the terms, provisions and covenants herein contained. No
act or thing done by Landlord or any of its agents shall be deemed a
termination of this Lease or acceptance of the surrender of the Premises, and
no agreement to terminate this Lease or accept a surrender of the Premises
shall be valid unless in writing and signed by a duly authorized agent of
Landlord. Forbearance by Landlord in enforcing one or more of the rights or
remedies provided herein or under law upon an Event of Default shall not be
deemed or constitute a waiver of such default or of Landlord's right to
enforce any such rights or remedies with respect to such default or any
subsequent default. If, on account of any breach or default by Tenant in
Tenant's obligations under this Lease, it becomes necessary or appropriate
for Landlord to employ or consult with an attorney concerning or to enforce
or defend any of Landlord's rights or remedies hereunder or under law, Tenant
agrees to pay such fees so incurred by Landlord upon demand therefor.
20.07 INTENTIONALLY DELETED.
20.08 Abandonment.
(A) Abandonment of the Premises by Tenant shall constitute an
Event of Default under this Lease and shall entitle Landlord, at its sole
option, to exercise any of Landlord's remedies set forth herein or under
applicable law. Tenant shall be deemed to have abandoned the Premises if
Tenant, without the prior consent of Landlord, removes all or substantially
all of Tenant's furniture, equipment, appliances and personal property from
the Premises and Tenant is delinquent in the payment of the Rent due
hereunder for more than 30 days.
(B) Upon abandonment of the Premises by Tenant as aforesaid,
Landlord shall make a good faith effort to serve written notice on Tenant (to
the effect that, unless Tenant immediately cures its default by bringing its
rent payments current and by giving Landlord adequate assurance that Tenant
is willing and able to perform its obligations under this Lease, Landlord
intends to reenter the Premises and take possession thereof and that, if
Landlord does so, Landlord may dispose of any remaining furniture, fixtures,
equipment, appliances and personal property of Lessee); and shall also post
the Premises with such notice. Both actions may be taken concurrently by
Landlord, if Landlord elects to proceed under this section.
(C) At any time more than five business days after the giving of
the aforesaid notice to Tenant and the posting of the Premises (whichever shall
later occur), Landlord may reenter the Premises and retake possession of the
same on behalf of Tenant (such action by Landlord, however, shall not be deemed
or construed to be an acceptance of surrender of possession of the Premises by
Tenant unless otherwise stated in Landlord's notice to Tenant).
(D) Further in the event of Landlord's reentry into the Premises as
aforesaid, Landlord may take possession of any such remaining furniture,
fixtures, equipment, appliances and personal property of Tenant in and about the
Premises and, 10 days or more after said reentry, Landlord may sell or dispose
of the same in a commercially reasonable manner; provided, however, that, if,
prior to said sale or disposal, Tenant requests return of such property and
simultaneously pays all delinquent rents and all of Landlord's reasonable
expenses (including attorneys' fees and other legal costs) arising out of
Tenant's abandonment, then Landlord shall return Tenant's property to Tenant.
The proceeds received from any sale of Tenant's property by Landlord shall be
applied as a credit against any delinquent rentals and expenses (including
reasonable attorneys' fees and other legal costs). The balance, if any, shall be
remitted to Tenant.
(E) Property which may be removed from the Premises by Landlord
pursuant to the authority of this section or any other provision of this Lease
or by law, to which Tenant is or may be entitled, may be handled, removed and
stored, as the case may be, by or at the direction of Landlord at the risk, cost
and expense of Tenant, and Landlord shall in no event by responsible for the
value, preservation or safekeeping thereof. Tenant shall pay to Landlord upon
demand, any and all expenses incurred in such removal and all storage charges
against such property so long as the same shall be in Landlord's possession or
under Landlord's control. Any such property not retaken by Tenant within 30 days
after removal from the Premises shall, at Landlord's option, be deemed conveyed
to Landlord under this Lease as by a bill of sale without further payment or
credit by Landlord to Tenant.
20.09 Past Due Sums; Interest. If Tenant fails to pay, when the same is
due and payable, any Basic Rent, Additional Rent or other sum required to be
paid by it hereunder, such unpaid amounts shall bear interest beginning on the
due date thereof to the date of payment at the Agreed Interest Rate.
Notwithstanding the foregoing, however, Landlord's right concerning such
interest shall be limited by the maximum amount which may properly be charged by
Landlord for such purposes under applicable law.
20.10 Right of Landlord to Cure. If Tenant contends that Landlord shall
have failed to perform any act required of it hereunder, to satisfy any of its
obligations hereunder or to observe any provision of this Lease, Tenant shall,
before exercising any right or remedy available to it, give Landlord written
notice of the claimed breach, default or noncompliance. If, prior to its giving
such notice, Tenant has been notified in writing of the address of a lender
which has furnished any of the financing referred to in Article 13, concurrently
with giving the aforesaid notice to Landlord, Tenant shall, by registered or
certified mail, transmit a copy thereof to such lender. For the 45 days
following the giving of the notice(s) required by the foregoing portion of this
section (or such longer period of time as may be reasonably required to cure a
matter which, due to its nature, cannot reasonably be rectified within 45 days),
Landlord shall have the right to cure the breach, default or noncompliance
involved. If Landlord has failed to cure a default within said period, any such
lender shall have an additional 15 days within which to cure the same or, if
such default cannot be cured within that period, such additional time as may be
necessary if within such 15-day period said lender has commenced and is
diligently pursuing the actions or remedies necessary to cure the breach,
default or noncompliance involved (including commencement and prosecution of
proceedings to foreclose or otherwise exercise its rights under its mortgage or
other security instrument, if necessary to effect such cure), in which event
this Lease shall not be terminated by Tenant so long as such actions or remedies
are being diligently pursued by said lender.
21. SURRENDER OF LEASE NOT MERGER
21.01 The voluntary or other surrender of this Lease by Tenant, or
mutual cancellation thereof, will not work a merger and will, at the option
of Landlord, terminate all or any existing transfers, or may, at the option
of Landlord, operate as an assignment to it of any or all of such transfers.
22. ATTORNEYS FEES/COLLECTION CHARGES
22.01 In the event of any legal action or proceeding between the
parties hereto, reasonable attorneys' fees and expenses of the prevailing
party in any such action or proceeding will be added to the judgment therein.
Should Landlord be named as defendant in any suit brought against Tenant in
connection with or arising out of Tenant's occupancy hereunder, Tenant will
pay to Landlord its costs and expenses incurred in such suit, including
reasonable attorney's fees, unless Landlord is found to be liable.
22.02 If Landlord utilizes the services of any attorney at law for
the purpose of collecting any rent due and unpaid by Tenant after written
notice to Tenant of such nonpayment of rent or in connection with any other
breach of this Lease by Tenant, Tenant agrees to pay Landlord reasonable
attorneys' fees as determined by Landlord for such services, regardless of
the fact that no legal action may be commenced or filed by Landlord
23. CONDEMNATION
23.01 If twenty-five percent (25%) or more of the square footage of the
Premises is taken for any public or quasi-public purpose by any lawful
government power or authority, by exercise of the right of appropriation,
reverse condemnation, condemnation or eminent domain, or sold to prevent such
taking, and if the remaining portion of the Premises will not be reasonably
adequate for the operation of Tenant's business after Landlord completes such
repairs or alterations as Landlord elects to make, either Tenant or the Landlord
may at its option terminate this Lease by notifying the other party hereto of
such election in writing within twenty (20) days after such taking. Tenant will
not because of such taking assert any claim against the Landlord or the taking
authority for any compensation because of such taking, and Landlord will be
entitled to receive the entire amount of any award without deduction for any
estate of interest of Tenant. If less than twenty-five percent (25%) of the
Premises is taken, Landlord at its option may terminate this Lease. If Landlord
does not so elect, Landlord will promptly proceed to restore the Premises to
substantially its same condition prior to such partial taking, allowing for any
reasonable effects of such taking, and a proportionate allowance based on the
loss of square footage will be made to Tenant for the rent corresponding to the
time during which, and to the part of the Premises, which, Tenant is deprived on
account of such taking and restoration.
24. RULES AND REGULATIONS
24.01 Tenant will faithfully observe and comply with any Rules and
Regulations promulgated by Landlord for the Project and Landlord reserves the
right to modify and amend them as it deems necessary. Landlord will not be
responsible to Tenant for the nonperformance by any other Tenant or occupant
of the Project of any of said Rules and Regulations.
24.02 In the event that Tenant violates any such Rules and
Regulations (subject to the cure period of Section 19.01(B) hereof), such
failure to cure shall be deemed a material breach of this Lease by Tenant.
25. ESTOPPEL CERTIFICATE
25.01 Tenant will execute and deliver to Landlord, within ten (10)
business days of Landlord's written demand, a statement in writing certifying
that this Lease is in full force and effect, and that the Base Monthly Rent
and Additional Rent payable hereunder is unmodified and in full force and
effect (or, if modified, stating the nature of such modification) and the
date to which rent and other charges are paid, if any, and acknowledging that
there are not, to Tenant's knowledge, any uncured defaults on the part of
Landlord hereunder or specifying such defaults if they are claimed and such
other matters as Landlord may reasonably request. Any such statement may be
conclusively relied upon by any prospective purchaser or encumbrance of the
Premises. In the event Tenant does not respond to Landlord's initial demand
for such statement, Landlord shall submit a second demand ("Second Demand")
for such statement. Tenant's failure to deliver such statement within ten
business days of the Second Demand shall be conclusive upon Tenant that (1)
this Lease is in full force and effect, without modification except as may be
represented by Landlord; (2) there are no uncured defaults in Landlord's
performance and (3) not more than one (1) month's rents has been paid in
advance.
26. SALE BY LANDLORD
26.01 In the event of a sale or conveyance by Landlord of the
Project the same shall operate to release Landlord from any liability upon
any of the covenants or conditions, expressed or implied, herein contained in
favor of Tenant, and in such event Tenant agrees to look solely to the
responsibility of the successor in interest of Landlord in and to this Lease.
This Lease will not be affected by any such sale, and Tenant agrees to attorn
to the purchaser or assignee.
27. NOTICES
27.01 All notices, statements, demands, requests, consents,
approvals, authorizations, offers, agreements, appointments, or designations
under this Lease by either party to the other will be in writing and will be
considered sufficiently given and served upon the other party if sent by
certified or registered mail, return receipt requested, postage prepaid,
delivered personally, or by a national overnight delivery service and
addressed as indicated in 1.03 and 1.04.
28. WAIVER
28.01 The failure of Landlord to insist in any one or more cases
upon the strict performance of any term, covenant or condition of the Lease
will not be construed as a waiver of a subsequent breach of the same or any
other covenant, term or condition; nor shall any delay or omission by
Landlord to seek a remedy for any breach of this Lease be deemed a waiver by
Landlord of its remedies or rights with respect to such a breach.
29. HOLDOVER
29.01 If Tenant remains in the Premises after the Lease Expiration
date with the consent of the Landlord, and has not given prior written notice
to Landlord, such continuance of possession by Tenant will be deemed to be a
month-to-month tenancy at the sufferance of Landlord terminable on thirty
(30) day notice at any time by either party. All provisions of this Lease,
except those pertaining to term and rent, will apply to the month-to-month
tenancy. Tenant will pay a new Base Monthly Rent in an amount equal to 150%
of the base monthly rent payable for the last full calendar month during the
regular term of this Lease.
30. DEFAULT OF LANDLORD/LIMITATION OF LIABILITY
30.01 In the event of any default by Landlord hereunder, Tenant
agrees to give notice of such default, by registered mail, to Landlord at
Landlord's Notice Address as stated in 1.04 and to offer Landlord a
reasonable opportunity to cure the default. In the event of any actual or
alleged failure, breach or default hereunder by Landlord, Tenant's sole and
exclusive remedy will be against Landlord's interest in the Project, and
Landlord, its directors, officers, employees and any partner of Landlord will
not be sued, be subject to service or process, or have a judgement obtained
against him in connection with any alleged breach or default, and no writ of
execution will be levied against the assets of any partner, shareholder or
officer of Landlord. The covenants and agreements are enforceable by Landlord
and also by any partner, shareholder or officer of Landlord.
31. SUBORDINATION
31.01 Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a subordination, and at the
election of Landlord or any mortgagee with a lien on the Project or any
ground lessor with respect to the Project, this Lease will be subject and
subordinate at all times to (a) all ground leases or underlying leases which
may now exist or hereafter be executed affecting the Project, and (b) the
lien of any mortgage or deed of trust which may now exist or hereafter be
executed in any amount for which the Project, ground leases or underlying
leases, or Landlord's interest or estate in any of said items is specified as
security. In the event that any ground lease or underlying lease terminates
for any reason or any mortgage or deed of trust is foreclosed or a conveyance
in lieu of foreclosure is made for any reason, Tenant will, notwithstanding
any subordination, attorn to and become the Tenant of the successor in
interest to Landlord, at the option of such successor in interest. Tenant
covenants and agrees to execute and deliver to Landlord any document or
instrument
reasonably requested by Landlord or its ground lessor, mortgagee or
beneficiary under a deed of trust evidencing such subordination of this Lease
with respect to any such ground lease or underlying leases or the lien of any
such mortgage or deed of trust, within ten business days of request by
Landlord. In the event Tenant does not so respond to Landlord's first request
for such document, Landlord shall supply Tenant with a second request
("Second Request") for such document. If Tenant fails to respond to the
Second Request within ten business days, Tenant hereby irrevocably appoints
Landlord as attorney-in-fact of Tenant to execute, deliver and record any
such document in the name and on behalf of Tenant.
32. DEPOSIT AGREEMENT
32.01 INTENTIONALLY DELETED.
33. GOVERNING LAW
33.01 This Lease has been consummated in and shall be construed
under the laws of the Commonwealth of Pennsylvania.
34. NEGOTIATED TERMS
34.01 This Lease is the result of the negotiations of the parties
and has been agreed to by both Landlord and Tenant after prolonged discussion.
35. SEVERABILITY
35.01 If any provision of this Lease is found to be unenforceable,
all other provisions shall remain in full force and effect.
36. BROKERS
36.01 Tenant warrants that it has had no dealings with any broker or
agent in connection with this Lease, except Grubb and Ellis and NAI
Commercial and Industrial Realty Company and covenants to pay, hold harmless
and indemnify Landlord from and against any and all cost, expense or
liability for any compensation, commissions and charges claimed by any broker
or agent, other than any identified above, with respect to this Lease or its
negotiation.
37. QUIET POSSESSION
37.01 Tenant, upon paying the rentals and other payments herein
required from Tenant, and upon Tenant's performance of all of the terms,
covenants and conditions of this Lease on its part to be kept and performed,
may quietly have, hold and enjoy the Premises during the Term of this Lease
without disturbance from Landlord or from any other person claiming through
Landlord.
38. MISCELLANEOUS PROVISIONS
38.01 Whenever the singular number is used in this Lease and when
required by the context, the same will include the plural, and the masculine
gender will include the feminine and neuter genders, and the word "person"
will include corporation, firm, partnership, or association. If there is more
than one Tenant, the obligations imposed upon Tenant under this Lease will be
joint and several.
38.02 The headings or titles to paragraphs of this Lease are not a
part of this Lease and will have no effect upon the construction or
interpretation of any part of this Lease.
38.03 This instrument contains all of the agreements and conditions
made between the parties to this Lease. Tenant acknowledges that neither
Landlord nor Landlord's agents have made any representation or warranty as to
the suitability of the Premises to the conduct of Tenant's business. Any
agreements, warranties or representations not expressly contained herein will
in no way bind either Landlord or Tenant, and Landlord and Tenant expressly
waive all claims for damages by reason of any statement, representation,
warranty, promise or agreement, if any, not contained in this Lease.
38.04 Time is of the essence of each term and provision of this
Lease.
38.05 Except as otherwise expressly stated, each payment required to
be made by Tenant is in addition to and not in substitution for other
payments to be made by Tenant.
38.06 Subject to Article 18, the terms and provisions of this Lease
are binding upon and inure to the benefit of the heirs, executors,
administrators, successors and assigns of Landlord and Tenant.
38.07 All covenants and agreements to be performed by Tenant under
any of the terms of this Lease will be performed by Tenant at Tenant's sole
cost and expense and without any abatement of rent.
38.08 In consideration of Landlord's covenants and agreements
hereunder, Tenant hereby covenants and agrees not to disclose any terms,
covenants or conditions of this Lease to any other party without the prior
written consent of Landlord.
38.09 Tenant agrees it will provide to Landlord such financial
information as Landlord may reasonably request for the purpose of obtaining
construction and/or permanent financing for the Premises.
38.10 If Tenant shall request Landlord's consent and Landlord shall
fail or refuse to give such consent, Tenant shall not be entitled to any
damages for any withholding by Landlord of its consent; Tenant's sole remedy
shall be an action for specific performance or injunction, and such remedy
shall be available only in those cases where Landlord has expressly agreed in
writing not to unreasonably withhold its consent or where as a matter of law
Landlord may not unreasonably withhold its consent.
38.11 Whenever a day is appointed herein on which, or a period of
time is appointed in which, either party is required to do or complete any
act, matter or thing, the time for the doing or completion thereof shall be
extended by a period of time equal to the number of days on or during which
such party is prevented from, or is reasonably interfered with, the doing or
completion of such act, matter or thing because of labor disputes, civil
commotion, war, warlike operation, sabotage, governmental regulations or
control, fire or other casualty, inability to obtain materials, or to obtain
fuel or energy, weather or other acts of God, or other causes beyond such
party's reasonable control (financial inability excepted); provided, however,
that nothing contained herein shall excuse Tenant from the prompt payment of
any Rent or charge required of Tenant hereunder.
39. CHANGE ORDERS.
In the event Tenant requests and/or approves changes in the scope
the work being provided by or through Landlord Tenant agrees to pay all the
direct and indirect costs of additional work at the time it gives such
approval.
40. SPECIAL PROVISIONS
40.01 Special provisions of this Lease number 41 through 42 and
Exhibits A through G are attached hereto and made a part hereof.
41. RENEWAL OPTIONS
41.01 Provided Tenant is not in default hereunder, Tenant shall have
the option to renew this Lease for an additional term of five years ("First
Renewal Term") commencing October 1, 2010 and concluding September 30, 2015
for Fair Market Rent, as hereinafter defined. All terms and conditions of
this Lease shall apply to the First Renewal Term, including the annual two
percent (2%) rent escalation provision for the second and subsequent years of
the First Renewal Term. Tenant must provide notice to renew at least nine
months prior to expiration of the original term, or the renewal option shall
be forfeited.
41.02 Provided Tenant is not in default hereunder and Tenant has
exercised its option for the First Renewal Term, Tenant shall have an option
to renew this lease for an additional term of five years
("Second Renewal Term") commencing October 1, 2015 and concluding September
30, 2020 for Fair Market Rent, as hereinafter defined. All terms and
conditions of this Lease shall apply to the Second Renewal Term, including
the annual two percent (2%) rent escalation provision for the second and
subsequent years of the Second Renewal Term. Tenant must provide notice to
renew at least nine months prior to expiration of the First Renewal Term or
the renewal option shall be forfeited.
41.03. For purposes of this Section 41, the "Fair Market Rent" shall
mean an amount equal to the fair market rental of the Premises during the
subject Renewal Term, taking into consideration (1) the Permitted Use of the
Premises, (2) the size and nature of Operating Costs as set forth herein, and
(3) such other commercially reasonable factors and considerations normally
considered in determining fair market rental. In no event, however, will Fair
Market Rent ever be less than 102% of the amount of rent paid by Tenant
during the last year of the most recently concluded Term. Within thirty (30)
days after receipt by Landlord of Tenant's notice of exercise of the Renewal
Option, Landlord shall deliver to Tenant Landlord's written proposal for the
Fair Market Rent. Tenant shall have until the date thirty (30) days after
receipt of Landlord's proposal for the Fair Market Rent to object in writing
thereto. If Tenant shall fail to object in writing to Landlord's proposal
within such thirty (30) day period, Landlord's proposal shall be the Fair
Market Rent. If Tenant shall object in writing within such thirty (30) day
period, Landlord and Tenant shall negotiate in good faith to agree upon the
Fair Market Rent. If Landlord and Tenant shall not agree to the Fair Market
Rent on or before the date thirty (30) days after receipt by Landlord of
notice of objection by Tenant to Landlord's proposal, the parties shall
jointly select within thirty (30) days an appraiser who is a member of the
American Institute of Real Estate Appraisers and who has at least five (5)
years experience in the greater Harrisburg, Pennsylvania area appraising
properties similar to the Premises and who is not an Affiliate or past or
present employee of either Landlord or Tenant ("Qualified Appraiser").
Subject to the limitation contained in the second sentence of this paragraph,
the rent established by such Qualified Appraiser shall be the Fair Market
Rent and Landlord and Tenant shall each pay one-half (1/2) of such Qualified
Appraiser's fee and associated costs. If Landlord and Tenant cannot agree
within such thirty (30) day period on a Qualified Appraiser, Landlord and
Tenant shall each select a Qualified Appraiser and the two Qualified
Appraisers shall each independently establish their determination of the Fair
Market Rent. Landlord shall pay all costs for the Qualified Appraiser
selected by Landlord and Tenant shall pay all costs for the Qualified
Appraiser selected by Tenant. If the lesser determination of Fair Market Rent
is equal to or greater than ninety-five percent (95%) of the greater
determination of Fair Market Rent, subject to the limitation contained in the
second sentence of this paragraph, the average of the rental amounts proposed
by the two Qualified appraisers shall be the Fair Market Rent If the lesser
determination of Fair Market Rent is less than ninety-five percent (95%) of
the greater determination of Fair Market Rent, the parties shall apply to the
American Arbitration Association for appointment of a Qualified Appraiser who
shall choose one of the two determinations as the Fair Market Rent, subject
to the limitation contained in the second sentence of this paragraph
Landlord and Tenant shall each pay one-half (1/2) of the costs of the third
Qualified Appraiser, if applicable.
42. RIGHT OF FIRST OFFER ON ADJACENT SPACE.
42.01. Provided that Tenant is not in default at any time under the
terms of this Lease Landlord agrees to first offer any space in Unit 1 of the
Project which is adjacent to Tenant's space to Tenant before offering it for
lease to any other tenant. Said offer to lease shall be on such terms and
conditions as Landlord shall determine, in Landlord's sole discretion.
42.02. In the event that Tenant does not accept said offer, the
parties agree that Landlord may rent said property to the prospective lessee
or any future prospective lessee at any time without again offering to lease
said property to Tenant.
42.03. The parties also agree that this first right of offer granted
herein is personal to the original Tenant executing this Lease and,
notwithstanding anything to the contrary contained in this first right of
refusal, are not assignable or transferable by said original Tenant.
42.04. The right granted herein shall expire on the date this Lease
expires or terminates."
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year indicated by Landlord's execution date as written below.
Individuals signing on behalf of a Tenant warrant that they have the
authority to bind their principals. In the event that Tenant is a corporation,
Tenant shall deliver to Landlord, concurrently with the execution and delivery
of this Lease, a certified copy of corporate resolutions adopted by Tenant
authorizing said corporation to enter into and perform the Lease and authorizing
the execution and delivery of the Lease on behalf of the corporation by the
parties executing and delivering this Lease. THIS LEASE, WHETHER OR NOT EXECUTED
BY TENANT, IS SUBJECT TO ACCEPTANCE AND EXECUTION BY LANDLORD, ACTING ITSELF OR
BY ITS AGENT ACTING THROUGH ITS PRESIDENT, VICE PRESIDENT, OR ITS DIRECTOR OF
LEASING AND MARKETING.
Landlord: DP OPERATING PARTNERSHIP, Tenant: UNITED STATIONERS SUPPLY
L.P., A DELAWARE LIMITED CO., AN ILLINOIS CORPORATION
PARTNERSHIP, BY: DERMODY PROPERTIES,
A NEVADA CORPORATION, ITS GENERAL
PARTNER
By:
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Michael C. Dermody
Its: PRESIDENT
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Date:
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(Execution date) (Execution date)