Exhibit 10(a)
LEASE FOR BRANCH OFFICE LOCATED AT TWO PENN CENTER
ORESTES REAL ESTATE CORPORATION H V (LESSOR)
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UNITED BANK OF PHILADELPHIA (LESSEE)
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SPACE: APPROXIMATELY 4,769 RENTABLE SQUARE
FEET ON GROUND FLOOR,
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TWO PENN CENTER PLAZA
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INITIAL TERM: TEN (10) YEARS
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TABLE OF CONTENTS
Article Page
1. Term . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Rent . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3. Security Deposit . . . . . . . . . . . . . . . . . . . . 8
4. Condition of Premises and Lessee's Work . . . . . . . . 9
5. Use . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6. Occupancy, Assignment and Subletting . . . . . . . . . .17
7. Alterations . . . . . . . . . . . . . . . . . . . . . . 18
8. Rules and Regulations . . . . . . . . . . . . . . . . . 19
9. Fire or Other Casualty; Waiver of Subrogation . . . . . 20
10. Lessor's Right to Enter . . . . . . . . . . . . . . . . 22
11. Insurance . . . . . . . . . . . . . . . . . . . . . . . 22
12. Release of Lessor . . . . . . . . . . . . . . . . . . . 24
13. Indemnity . . . . . . . . . . . . . . . . . . . . . . . 24
14. Repair and Maintenance; Other Services . . . . . . . . 25
15. Utilities . . . . . . . . . . . . . . . . . . . . . . . 26
16. Events of Default-Remedies . . . . . .. . . . . . . . . 27
17. Intentionally Omitted . . . . . . . . . . . . . . . . . 32
18. Subordination . . . . . . . . . . . . . . . . . . . . . 32
19. Condemnation . . . . . . . . . . . . . . . . . . . . . 32
20. Limitation on Lessor's Liability . . . . . . . . . . . 33
21. Parties Bound . . . . . . . . . . . . . . . . . . . . . 33
22. Notices . . . . . . . . . . . . . . . . . . . . . . . 34
23. Condition of Premises . . . . . . . . . . . . . . . . 34
24. Number and Gender . . . . . . . . .. . . . . . . . . . 35
25. Captions . . . . . . . . . . . . . . . . . . . . . . . 35
26. Amendments . . . . . . . . . . . . . . . . . . . . . . 35
27. Partial Invalidity . . . . . . . . . . . . . . . . . . 35
28. Lessee's Estoppel Certificate . . . . . . . . . . . . . 35
29. Holding Over . . . . . . . . . . . . . . . . . . . . . 36
30. Entire Agreement . . . . . . . . . . . . . . . . . . . 36
31. Changes to Building . . . . . . . . . . . . . . . . . . 36
32. Brokers . . . . . . . . . . . . . . . . . . . . . . . . 37
33. Liens . . . . . . . . . . . . . . . . . . . . . . . . . 37
34. Existing Lease . . . . . . . . . . . . . . . . . . . . 38
35. Untenantability . . . . . . . . . . . . . . . . . . . . 39
36. Lessor's Additional Representations and Warranties . . 39
37. Lessor's Additional Covenants . . . . . . . . . . . . . 40
38. Lessor's Default . . . . . . . . . . . . . . . . . . . 40
39. Communications Antenna or Dish . . . . . . . . . . . . 41
40. Consents and Approvals . . . . . . . . . . . . . . . . 41
41. Authority . . . . . . . . . . . . . . . . . . . . . . . 41
42. Condition Precedent . . . . . . . . . . . . . . . . . . 41
Exhibits
"A" = Location of the premises.
"C" = Rules and Regulations.
LEASE
THIS LEASE made this 2nd day of February, 1994, between Orestes Real Estate
Corporation B.V., a Netherlands corporation ("Lessor"), and United Bank of
Philadelphia, a banking corporation organized under the laws of the Commonwealth
of Pennsylvania ("Lessee").
W I T N E S S E T H:
Lessor hereby demises and lets unto Lessee all that certain space
constituting a portion of the ground floor level (such portion, the "premises"),
as shown on the plan marked Exhibit "All attached hereto and made a part hereof,
in the building known as Two Penn Center Plaza (the "building") in Philadelphia
County, Philadelphia, Pennsylvania, TOGETHER WITH, and appurtenant to the
premises, the right to `use in common with Lessor and other tenants, occupants
and visitors to the building, the building lobby and the common walkways and
sidewalks of the lot on which the building is located. Lessor and Lessee agree
that the premises consists of approximately 4,769 rentable square feet of space
(the "Floor Area"). The Floor Area is measured from the outside of exterior
walls, shaft walls or corridors or the center of any common walls, as the case
may be.
This lease is made on and is subject to the following terms and conditions:
Article 1. Term.
(A) The term of this lease shall, in addition to the preoccupancy period
described below, consist of an initial term and, subject to the provisions of
clause (C) of this Article 1, up to two (2) extended terms of five (5) years
each. As used in this lease, the phrase "preoccupancy period" shall mean the
period beginning on the date hereof and ending on the earlier of the date on
which Lessee opens for business with the public at the premises or the date
which is four (4) months after the date on which Lessee has delivered this
lease, as executed by Lessee, to Lessor, subject to extension as provided below.
Lessor shall promptly execute and deliver this lease to Lessee following its
receipt, and shall confirm to Lessee Lessor's obligation to advance the
Allowance (as defined below) pending such execution and delivery by Lessor.
During the preoccupancy period, no rent or other sums shall be due from Lessee
hereunder but Lessee shall, in common with Lessor, have access to the premises
for the purpose of designing and constructing Lessee's Work (as hereinafter
defined). Lessor and Lessee shall cooperate
in scheduling the construction of Lessee's Work and Lessor's Work (as
hereinafter defined), which shall also be completed during the preoccupancy
period, so that all such work may be completed in timely fashion within four (4)
months from the date on which Lessee delivers this lease to Lessor; provided,
however, that Lessee's Work shall in no event interfere with the completion of
Lessor's Work.
The initial term of this lease shall be ten (10) years beginning on the
date (the "Commencement Date") which is the day immediately following the
expiration of the preoccupancy period, and ending on the last day of the 120th
full calendar month following the Commencement Date (such date, the "Expiration
Date") (or until such term shall sooner cease and terminate as hereinafter
provided). It is understood and agreed that if the term of this lease commences
on a day other than the first day of a calendar month, regardless of the reason
therefor, the term hereof shall end on the last day of the calendar month
immediately preceding the month in which the term hereof would expire if the
full stated terns hereof were measured from the actual Commencement Date of the
lease. When the Commencement and Expiration Dates have been determined as herein
provided, either party hereto shall, at the written request of the other, join
in the execution of a written addendum to this lease confirming such
Commencement and Expiration Dates.
(B) For the purposes of this lease, the term "lease year" shall mean a
period of 12 consecutive calendar months, the first full lease year commencing
on the Commencement Date, and each succeeding lease year shall commence on the
anniversary date of the first lease year. Any portion of a lease year which is
less than a full lease year shall be a partial lease year.
(C) Provided that there is no outstanding and uncured event of default (as
defined below) under this lease, Lessee shall have the option, subject to the
terms and conditions of this clause (C), to extend the term of this lease for
two (2) additional consecutive renewal periods of five (5) years each, the first
renewal period commencing on the first day following the day on which the
initial term expires and terminating sixty (60) calendar months thereafter, and
the second renewal period (which shall only be available if Lessee has properly
exercised the first renewal period) commencing on the first day following the
day on which the first renewal period expires and terminating sixty (60)
calendar months thereafter, such renewal periods being upon all the same terms
and conditions contained herein (except that no further renewal options shall be
created in favor of Lessee) or then in effect, except that the minimum rent due
for
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such renewal periods, determined separately for each renewal period, shall be
determined as provided in Article 2, below. In the event Lessee desires to
exercise the foregoing renewal options, Lessee shall notify Lessor, in writing
(the "First Notice"), not less than nine (9) calendar months before the
expiration date of the then-current term. Promptly following Lessor's receipt of
Lessee's First Notice, the Market Rent (as defined in Article 2 hereof) shall be
determined pursuant to provisions of Article 2 for the applicable renewal
period. Lessee may only exercise the renewal options provided herein by sending
the Second Notice (as defined in Article 2 hereof) to Lessor on or before the
date which is six (6) months prior to the expiration date of the then-current
term, time being of the essence, which Second Notice shall constitute formal
exercise of the applicable renewal option. If Lessee fails to send the Second
Notice in the manner and within the time herein set forth or cancels the First
Notice as provided in Article 2 hereof in timely fashion, this lease shall
expire on the expiration date of the then-current term. If Lessee properly
exercises the renewal option by sending the Second Notice, this lease shall
continue through the applicable renewal period on the terms and conditions
herein set forth but at the new minimum rent determined pursuant to Article 2
hereof, and such change in minimum rent shall not impair or affect in any manner
Lessee's obligations with respect to additional rent hereunder. Lessee's Second
Notice shall constitute an amendment to this lease and no further amendment
shall be necessary in order to confirm the terms of such renewal option, but
Lessee shall, at Lessor's written request, enter into an appropriate written
amendment to this lease confirming the exercise of such renewal option, the
minimum rent due hereunder for the applicable renewal period and the new
Expiration Date of this lease. If Lessee does so exercise said renewal option,
the minimum rent shall be determined pursuant to Article 2 hereof and shall be
binding on both parties when so determined. Lessee shall have no other right or
option to extend the term of this lease except as expressly set forth in this
clause (C).
Article 2. Rent.
(A) Minimum Rent.
(i) Lessee covenants and agrees to pay to Lessor annual minimum rent
in the amounts set forth below for the periods indicated, which annual
minimum rent shall be paid by Lessee without notice, demand or, except as
otherwise expressly provided to the contrary in this lease, set-off in the
respective monthly installments set forth below, in advance, on or before
the first day of each calendar month of the germ of this lease.
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Minimum rent for the first full month of the term and any preceding partial
calendar month shall be payable upon execution of this lease. If there is a
partial calendar month at the beginning of the initial term of this lease, the
minimum rent for such partial month, prorated on a per diem basis, shall be paid
on the Commencement Date.
(ii) The annual minimum rent due under this lease, and the monthly
installments thereof, shall be in the following amounts for the periods
indicated:
Portion of Lease Term Annual Minimum Rent Monthly Installment
lease year 1 $ 88,226.50 $ 7,352.21
lease year 2 $ 92,995.50 $ 7,749.63
lease year 3 $104,918.00 $ 8,743.17
lease year 4 $138,301.00 $11,525.08
lease year 5 $147,839.00 $12,319.92
lease year 6
through 10; $157,377.00 $13,114.75
inclusive
lease year 11
through 15, 90% of Market Rent (as defined and
inclusive (the determined below)
first renewal
period) if applicable,
and lease years 16
through 20, inclusive,
(the second renewal
period), if applicable
If minimum rent is charged at more than one rate during any calendar month,
it shall be prorated on a per diem basis.
As used herein the phrase "Market Rent" shall mean the amount determined by
reference to the market for space in the building and in comparable buildings in
center city Philadelphia that a willing landlord would offer and a willing
tenant would accept in an arms length transaction for a new lease of such space
(a) commencing on the first day of the relevant renewal term, (b) expiring on
the fifth anniversary of such commencement, (c) providing for no free rent, no
work to be done by the landlord to prepare the premises for the tenant, no
contribution by the landlord toward the tenant's cost to so prepare the
premises, and no other allowances or lease concessions, and (d) having a 1994
base year for purposes of determining real estate tax escalations. In
determining the Market Rent, consideration shall also be given to applicable
measurement and loss factors, lengths
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of lease term, differences in size of the space demised, the age and location of
the buildings, the amenities in the buildings, differences in base years or stop
amounts and other factors normally taken into account in determining fair market
rent. The Market Rent shall be determined as follows (and determined separately
for the first and second renewal periods, if applicable):
Within thirty (30) days following Lessor's receipt of Lessee's First
Notice, Lessor will notify Lessee in writing (the "Lessor's Notice") of
Lessor's determination of the Market Rent for the applicable renewal
period, with the minimum annual rent for such renewal period being equal to
900 of the Market Rent, as aforesaid. Within thirty (30) days after receipt
of the Lessor's Notice, Lessee shall notify Lessor in writing (the "Second
Notice") that Lessee (A) rescinds the First Notice, in which case Lessee's
exercise of the relevant option shall be null, void arid of no force or
effect, (B) accepts Lessor's determination of the Market Rent, or (C)
elects to have the Market Rent determined by appraisal. If Lessee elects to
have the Market Rent determined by appraisal, Lessee shall in the Second
Notice appoint a qualified and experienced real estate appraiser holding
the MAI designation or its equivalent. Lessor, within ten (10) days
following receipt of such notice, shall designate a second appraiser having
such qualifications. If Lessor fails to appoint an appraiser within said
10-day period, the single appraiser selected by Lessee shall determine the
Market Rent for the applicable renewal period. The two appraisers, if so
selected, shall appoint a third appraiser having such qualifications, and
the three appraisers so selected shall be instructed to meet and, within
thirty (30) days following the appointment of the third appraiser, to
determine by majority vote the fair market. rental value of the premises
for the applicable renewal period, taking into account all relevant
factors, and to advise the parties hereto in writing of their decision. The
decision of such appraisers shall be conclusive and binding on the parties
hereto, provided always that Lessee sends the Second Notice to Lessor as
herein provided. The fees and expenses of such appraisers shall be paid by
Lessor and Lessee in equal shares. Following the
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determination of the minimum annual rent for the applicable renewal term
pursuant to this Article 2, either party shall upon the request of the
other enter into an appropriate written amendment to this lease confirming
the exercise of the renewal option, the minimum rent due hereunder for the
applicable renewal period and the new Expiration Date of this lease.
Notwithstanding anything contained in this Lease to the contrary, if Market
Rent is to be determined by appraisal, Lessee shall have the right,
exercisable in writing at any time prior to the determination of the Market
Rent by the appraisers, to withdraw the exercise of the applicable option,
and in such case the prior exercise of such option shall be null and void
and of no force or effect. If Lessee withdraws the exercise of any option
as aforesaid, then, Lessee shall be responsible for all of the fees and
expenses of the appraisers, including the appraiser appointed by Lessor.
(iii) All rent and other sums to be paid by Lessee to Lessor hereunder
shall be sent to Post Office Box 7777 W2930, Philadelphia, Pennsylvania
19175, or to such other address as Lessor may from time to time designate
in writing.
(B) Real Estate Taxes; Other Business Taxes.
(i) Lessee will pay to Lessor, as additional rent, 0.958% of the real
estate taxes assessed against the land and building of which the premises
are a part iii excess of the real estate taxes for 1994 (the "base year"),
such amounts to be paid in equal monthly installments of one-twelfth
(1/12th) of the amount due on the date when minimum rent is due hereunder
beginning with the month of January, 1995, at the earliest. Lessor hereby
confirms to Lessee that the foregoing percentage has been determined by
dividing the rentable square footage of the premises by 497,834, the total
rentable square footage of the building. Lessor agrees with Lessee that if
the real estate taxes for the base year are reduced by reason of any tax
appeal brought by Lessor or otherwise, Lessor shall nevertheless use the
real estate taxes as originally billed and assessed by the City of
Philadelphia for the base year in determining Lessee's obligations
hereunder, but Lessee shall not be entitled to any refund as a result of
such reduction in base year real estate taxes.
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For purposes of this paragraph, a tax bill issued by the applicable
governmental authorities shall be sufficient evidence of the real estate taxes
assessed against the land and building of which the premises are a part and the
amount shown on such bill shall be used for calculation of the amount to be paid
by Lessee. Any adjustment of rent made pursuant to this paragraph (a) shall be
based upon the gross amount (i.e., not discounted) of such taxes for the base
year and all subsequent years and (b) shall not include any interest or
penalties arising from any late payment by Lessor. If adjustment of rent becomes
necessary, pursuant to this paragraph, Lessor shall so notify Lessee, and all
monthly installments of rent due thereafter (from and after January 1, 1995)
shall reflect 1/12 of the amount of such adjustment (which will be calculated on
an annual basis) until a new adjustment becomes effective pursuant to this
paragraph. If the adjustment applies to a period for which rent has already been
paid, Lessee will pay Lessor the difference in rent for such period promptly
upon demand. Any such adjustment applicable to any period less than a full month
will be prorated.
(ii) The amount of special taxes or special assessments to be included
shall be limited to the amount of the installment (plus any interest, other
than penalty interest, payable thereon) of such special tax or special
assessment required to be paid during the year in respect of which such
taxes are being determined, if such special tax or assessment is permitted
to be paid in installments.
(iii) There shall be excluded from real estate taxes all income taxes,
excess profit taxes, gross receipt taxes, excise taxes, franchise taxes,
stock taxes, gift taxes, estate, succession, inheritance and transfer
taxes.
(iv) If Lessor receives a refund of real estate taxes for any year
after the base year, the real estate taxes for such year shall be
recalculated to reflect the amount of the refund received by Lessor in
excess of base year taxes, and Lessor shall pay to Lessee (or credit
against the installments of rent next due under this lease) the difference
between the amount paid by Lessee pursuant to this Article and the amount
which was actually due, taking the refund into account.
(v) Lessee has advised Lessor that Lessee does not intend to pay use
and occupancy tax under this lease. In lieu of the payment of such tax,
Lessee shall timely complete all forms and documents required to comply
with all Philadelphia Code Sections and Philadelphia Department of Use and
Occupancy Tax Regulation Sections setting forth filing requirements for
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landlords whose tenants fail to pay use and occupancy tax (which is
presently Philadelphia Code Section 19-01906(5)(b) and Regulation Section
405(i)), and submit all required forms and documents to Lessor in form
complete and adequate for filing as necessary prior to the date on which
they are required to be filed with the appropriate office. Lessee agrees to
indemnify, defend and hold harmless Lessor from and against any and all
claims, liabilities, damages, fines, penalties, costs and expenses which
may be incurred or suffered by Lessor arising out of Lessee's failure to
pay use and occupancy tax. In the event that a final and unappealable order
is entered against Lessee with regard to its liability under Philadelphia
Code Section 1901906(5)(b) and Regulation Section 405(i), or any other
Philadelphia Code Section of Philadelphia Department of Use and Occupancy
Regulation Section, which would require the payment of use and occupancy
taxes due under the Lease, then Lessee shall promptly pay all such taxes,
including overdue tax payments, penalties and late charges. Notwithstanding
the foregoing, Lessee shall have no obligation to indemnify Lessor for any
costs or expenses arising 'by virtue of Lessor's failure to file the forms
and documents provided by Lessee as set forth above in a timely fashion.
Article 3. Security Deposit.
As security for the faithful performance and observance by Lessee of the
covenants and conditions of this lease, Lessee shall, within fifteen (15) days
after the date on which Lessee and Lessor have executed and delivered this
lease, deliver to Lessor an irrevocable commercial letter of credit in form and
issued by a commercial bank satisfactory to Lessor in Lessor's reasonable
commercial discretion (together with and amendments thereto or replacements
thereof, the "Letter of Credit"), which Letter of Credit shall (i) have an
initial expiry date of not less than one (1) year from the date issued, (ii)
identify Lessor as the beneficiary thereunder, (iii) be in the initial face
amount of $75,000.00, (iv) permit partial draws thereunder, and (v) be drawable
on Lessor's sight draft specifying that such amounts are due from Lessee
hereunder. Lessee shall maintain such Letter of Credit by causing it to be
renewed or replaced not less than thirty (30) days prior to its then-current
expiry date, all in accordance with the requirements set forth above except that
(i) upon ~the expiration of lease year'3, the face amount of the Letter of
Credit shall be reduced to $37,500.00, and (ii) upon the expiration of lease
year 5 and provided no event of default has occurred which is continuing
hereunder, the Letter of Credit shall be returned to Lessee and no further
Letter of Credit shall be required hereunder. Lessee shall take all
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actions required in connection with obtaining and maintaining the Letter of
Credit, except that Lessor will pay the actual and reasonable fees of the issuer
of the Letter of Credit in issuing, renewing or replacing the same, such amounts
to be paid within ten (10) days following written request to Lessor. Lessor may
draw on the Letter of Credit (a) upon the occurrence of any event of default
under this lease, (b) upon Lessee's failure to renew or replace the Letter of
Credit as herein provided, or (c) upon the termination of this lease pursuant to
Article 42 hereof, with Lessor, under clauses (a) and (c), entitled to draw the
amount then due and owing by Lessee hereunder and, under clause (b), the entire
face amount of the Letter of Credit to be held as a cash security deposit
hereunder without interest. Upon a draw on the Letter of Credit, Lessor may
apply the amount drawn toward the payment of any rent and additional rent and
any other charge as to which Lessee is in default or on account of any sum which
Lessor may expend or may be required to expend by reason of Lessee's default in
respect of any of the covenants or conditions of this lease, with the balance,
if applicable as provided above, held as a cash security deposit. Lessor shall
refund any cash security deposit held by Lessor hereunder at the end of Lease
Years 3 and 5, respectively, to the extent such deposit exceeds the face amount
of the Letter of Credit then required hereunder. In the event of a sale of the
premises to a bona fide purchaser who shall, in writing, assume the obligations
of Lessor under this lease, Lessor shall have the right to transfer the Letter
of Credit to such purchaser and Lessor shall thereupon be released by Lessee
from all liability for the return of such security, and Lessee agrees to look
only to the new landlord for the return thereof.
Article 4. Condition of Premises and Lessee's Work.
(A) Lessee acknowledges that Lessee has inspected the premises and,
except as otherwise expressly provided herein, has agreed to lease the same
in their present "as is" condition, with Lessor under no obligation,
express or implied, to make any alterations to the premises in connection
with Lessee's intended use and occupancy thereof; provided, however, that
Lessor shall, at Lessor's sole cost and expense, replace the upper level
cracked glass in the premises and cause a sprinklering system ("Lessor's
Work") to be installed in the premises following the execution of this
lease. All sprinkler heads will be the concealed type with an escutcheon
plate, with the distribution loop installed in accordance with the
requirements of Lessee's Plans and Specifications (as defined below).
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Lessor shall complete Lessor's Work promptly during the preoccupancy period
and within ten (10) business days following Lessor's approval of the Plans and
Specifications, with such work to be commenced following approval of Lessee's
Plans and Specifications (as defined below). Lessor's Work shall be diligently
completed in a good and workmanlike manner in accordance with all applicable
legal requirements. Lessor and Lessee shall cooperate in coordinating the
construction of Lessor's Work and Lessee's Work, with Lessor having the final
decision on such matters but with both parties agreeing to proceed in good faith
so that all such work may be completed during the preoccupancy period. The
completion of all such work shall be subject to clause (C) of this Article 4.
In addition to Lessor's Work, Lessor shall make available to Lessee an
allowance in an amount up to $150,000.00 (the "Allowance"), to be applied
towards Lessee's costs in designing and constructing Lessee's Work, including,
without limitation, a1l architectural and design fees, costs of labor, material,
contractor's overhead and profit, and permit `fees. The Allowance (or so much
thereof as shall have been expended by Lessee) shall be advanced from time to
time by Lessor to or for the benefit of Lessee within thirty (30) days following
Lessee's submission to Lessor of appropriate vouchers, cancelled checks and
other evidence establishing the cost of Lessee's Work for which Lessee is then
requesting reimbursement or direct payment by Lessor to the party designated by
Lessee hereunder, with all costs of such work in excess of the Allowance to be
paid by Lessee. If the amount of the Allowance exceeds the costs incurred by
Lessee for the design and construction of Lessee's Work, the amount of such
excess shall be applied to pay the installments of rent thereafter coming due
under this lease up to a maximum allowance of $47,650.00.
In the event that Lessor shall fail to advance all or any portion of the
Allowance which it is obligated to advance pursuant to this lease, Tenant shall
have the right, but not the obligation, to pay the costs of construction and
installation of the Lessee's Work which Lessor was obligated but failed to pay.
In such case, Lessee shall be entitled to a credit against the installments of
rent thereafter coming due under this lease equal to the sum of all amounts paid
by Tenant for such purpose, together with interest at the Default Rate from
the date of each such payment by Lessee to the effective date of such credit.
Lessor further agrees that in delivering the premises to Lessee in "as is"
condition (subject to the completion of Lessor's Work), it is expressly
understood and agreed that the vault, teller equipment, security equipment and
any other
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furniture, fixtures and equipment currently in the premises (collectively, the
"Equipment") are, as to Lessor's entire right, title and interest therein,
hereby transferred to Lessee, Lessor making no representation or warranty,
express or implied, as to the condition or quality of any of such property, all
of which was installed by a prior tenant which has abandoned the same following
the termination of such tenant's lease. In the event the Equipment or any of it
is hereafter removed from the premises by a party other than Lessee under a
claim of title superior to Lessor's title, Lessor shall, at Lessor's cost and
expense, promptly replace all Equipment so removed with items of comparable
quality and condition.
(B) Lessor acknowledges that Lessee desires to make certain alterations and
improvements to the premises in connection with Lessee's intended use and
occupancy thereof for the purposes provided in Article 5 hereof, and Lessor
agrees that Lessee may make such alterations and improvements subject to
Lessee's compliance with all of the following terms and conditions:
(i) Promptly following the execution of this lease, Lessee shall cause
to be produced, at, subject to the Allowance, Lessee's sole cost and
expense, plans and specifications (the "Plans and Specifications") showing
in detail the alterations and improvements which Lessee desires to make to
the premises, and Lessee shall deliver a set of the Plans and
Specifications to Lessor for Lessor's review and approval, which approval
shall not be unreasonably withheld. Lessor shall give notice to Lessee
within five (5) business days from the date of submission either approving
or disapproving the Plans and Specifications. If Lessor fails to give
notice within such five-day period, the Plans and Specifications shall be
deemed approved. Any notice of disapproval shall state the particular
reason for such disapproval. If Lessor disapproves the Plans and
Specifications, Lessee shall resubmit revised Plans and Specifications,
making such modifications as Lessor may reasonably request, and the same
approval procedure as set forth above shall apply to the modifications,
except that Lessor shall have two (2) business days after receipt of the
Plans and Specifications to approve or disapprove the modifications. Lessee
agrees to retain the firm of Wolfe, Stasul & Steinberg Engineers or other
engineering firm satisfactory to Lessor in Lessor's reasonable discretion
to prepare all engineering drawings included within the Plans and
Specifications and to supervise and perform all engineering and building
systems work included in Lessee's Work. Upon such approval, the parties
shall initial copies of the Plans and Specifications and attach the same as
Exhibit "B" hereto. No work shall be commenced by Lessee
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prior to Lessor's approval of the Plans and Specifications and following
such approval, no material changes shall be made in the Plans and
Specifications without Lessor's prior written approval, which shall not be
unreasonably withheld or delayed.
(ii) Following Lessor's approval of the Plans and Specifications,
Lessee shall, at, subject to the Allowance, Lessee's sole cost and expense,
apply for all building and other governmental permits and approvals for the
work to be performed by or on behalf of Lessee as described in the Plans
and Specifications (such work, collectively, "Lessee's Work"). Upon
receipt of all required permits, Lessee shall cause a waiver of liens to be
executed and filed of record by Lessee's contractor or contractors waiving
for such contractor and all of its subcontractors the right to file or
maintain a mechanics' lien against the premises, following which Lessee
shall commence the performance of Lessee's Work in accordance with the
Plans and Specifications and cause such Lessee's Work to be diligently
completed. All costs of designing, constructing and installing Lessee's
Work shall, subject to the Allowance, be paid by Lessee, including all
building permits and the cost of the certificate of occupancy upon the
completion of such work.
(iii) Lessee's Work shall be performed with union labor, in a good and
workmanlike manner, lien free, and in compliance with all applicable
governmental laws, ordinances, rules and regulations and in accordance with
411 of the other terms and conditions of this lease. Lessee agrees to cause
any mechanics' lien or claim filed in connection with Lessee's Work to be
promptly discharged or bonded within forty-five (45) days after Lessee has
notice thereof and to indemnify Lessor against and hold Lessor harmless
from any loss, claim, damage, cost or expense in connection with any such
lien or claim. Any contractor which Lessee elects to have perform work in
the premises is subject to Lessor's prior written approval, which shall not
be unreasonably withheld or delayed. Lessor hereby approves Clemens
Construction Company as the general contractor for Lessee's Work. Lessee
shall cause each contractor to obtain insurance in connection with Lessee's
Work for worker's compensation (in the amount required by statute) and
comprehensive general liability insurance for personal injury and property
damage in an amount of not less than $1,000,000.00. All construction signs
used at the premises shall be in accordance with the requirements for the
installation, design and size of signs given by Lessor to Lessee, as the
same may be revised by Lessor from time to time, and in accordance with all
applicable legal requirements, said signs not to be installed prior to
written approval in each instance by Lessor.
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(iv) During any period of construction, Lessee agrees to conduct its
labor relations and its relations with its employees in such a manner as to
avoid all strikes, picketing and boycotts of, on, or about the premises
and/or the building. Lessee further agrees that if, during the period of
construction of the premises, any of its employees strike, or if picket
lines or boycotts or other visible activities objectionable to Lessor are
established or conducted or carried out against Lessee or its employees, or
any of them, on or about the premises or the building, Lessee shall
immediately close the premises and remove or cause to be removed all
employees therefrom until the dispute giving rise to such strike, picket
line, boycott or objectionable activity has been settled to Lessor's
satisfaction. Notwithstanding the foregoing, it is understood and agreed
that Lessee shall not be held responsible for general strikes or similar
events within the construction industry or specific trades. For the
purposes of this paragraph only, the employees of Lessee's contractors and
their subcontractors shall be deemed to be Lessee's employees.
(v) If there is a material defect in the items supplied by or on
behalf of Lessee or if Lessee is not performing Lessee's Work consistent
with Lessee's Plans and Specifications as approved by Lessor, and Lessee
fails to cure such defect or defects in the items to be supplied or in the
performance of Lessee's Work within ten (10) days written notice thereof
from Lessor, Lessor shall, if the defect constitutes a dangerous Condition,
have the right, in addition to all other rights and remedies of Lessor and
without affecting the rent commencement date or in any manner affecting the
validity or continued effectiveness of this lease, to take possession of
the premises and physically prevent the continuation of the performance of
Lessee's work until such time as Lessor in its sole judgement has
determined that the performance by Lessee hereunder will proceed in
accordance with the terms hereof.
(vi) Upon the expiration or sooner termination of this lease, all
alterations and improvements made to the premises as a part of Lessee's
Work shall become the property of Lessor and shall not be removed by
Lessee, but Lessee may remove all fixtures and the Equipment provided
Lessee restores all damage caused by such removal. Lessee expressly
acknowledges and agrees that the completion of Lessee's Work is not a
condition precedent to the commencement of the term of this lease or of
Lessee's obligation to pay minimum and additional rent hereunder.
(C) It is contemplated by Lessor and Lessee that the total time to design
and construct both Lessor's Work and
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Lessee's Work, which will be constructed concurrently, will be four (4) months,
ending co-terminously with the end of the preoccupancy period, but the parties
hereto desire to provide for certain contingencies which could extend such
preoccupancy period. Accordingly, Lessor and Lessee hereby expressly agree,
anything to the contrary in this lease notwithstanding, as follows:
(1) The time for completion of Lessor's and Lessee's Work shall be
extended for a period equal to any time lost by reason of strikes, war,
acts of God or other causes beyond the reasonable control of the party
responsible for such work, provided that such extension shall not exceed
(a) ten (10) business days, with respect to Lessor's Work and (b) sixty
(60) days, with respect to Lessee's Work;
(2) Pursuant to Article 42, hereof, Lessee's obligations hereunder are
contingent upon certain approvals as provided therein. To the extent Lessee
causes Lessee's Work to be performed hereunder prior to the satisfaction of
such contingencies, Lessor will not be obligated to advance more than
$75,000.00 of the Allowance towards such costs (including, for purposes of
this clause (2) only, two-thirds of the cost of Lessor's Work in such
total) prior to the satisfaction of such contingency, but in such event (a)
Lessor may, upon the termination of this Lease by Lessee pursuant to
Article 42, draw on the Letter, of Credit to the extent of th4 Allowance so
advanced, with Lessor reimbursed from the proceeds of such draw for the
amount of the Allowance so advanced, (b) Lessor shall not be obligated to
advance more than $75,000.00 from the Allowance until such contingency is
satisfied, and (c) Lessee may by written notice to Lessor extend the
preoccupancy period for an additional thirty (30) days in order to satisfy
such contingency, which shall be in addition to any extension pursuant to
the preceding clause (1); and
(3) If Lessor fails to complete Lessor's Work within the time period
herein provided for any reason other than a delay caused by Lessee, the
preoccupancy period shall automatically be extended for a period of time
equal to Lessor's delay and, in addition, if such delay by Lessor is
willful, lessee shall be entitled to equitable relief and to terminate this
lease by written notice to Lessor if Lessor's delay exceeds sixty (60)
days.
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Article 5. Use.
(A) The premises shall be occupied and used only for the conduct of
Lessee's banking business and uses accessory thereto and for no other purpose.
(B) Lessee agrees to operate the premises at all times during the term of
this lease unless prevented from doing so because of fire, accident,
governmental regulation, acts of God or other circumstances beyond the
reasonable control of Lessee. Lessee agrees to keep open the premises during
such hours and on such days and evenings of the week as may be determined by
Lessee and in accordance with applicable governmental regulations. Lessee agrees
to keep the premises in good condition and Lessee agrees that storage and office
space in the premises shall be limited to that necessary for, and used in
conjunction with, Lessee's business at the premises. Lessee shall not use the
areas adjacent to the premises for business purposes except as approved by
Lessor.
Lessee shall:
(a) clean the windows and doors (including, in each case, the frames
therefor) in the premises and in the perimeter walls thereof whenever in
the reasonable judgment of Lessor necessary and Lessee will not require,
permit, suffer or allow any such window or door to be cleaned in violation
of the Labor Law of the State of Pennsylvania or of any, other law or
ordinance or of any rule, order or regulation of any governmental authority
having jurisdiction thereover;
(b) keep the premises clean, remove all rubbish and other debris from
the premises to such location as may be specified by Lessor from time to
time and under conditions approved by Lessor;
(c) promptly replace any and all glass (including mirrors) in the
premises and in the perimeter walls thereof, the frames for such glass, and
any lettering and ornamentation on such glass which may be broken or
damaged, regardless of the cause of such damage, even though the same may
be occasioned by the negligence of Lessor, its servants or agents;
(d) place no fixtures in the premises except such as are satisfactory
to, and, prior to being installed or placed therein, shall have been
approved by, Lessor, such approval not to be unreasonably withheld, and
Lessor shall advise
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Lessee of any such approval or disapproval within 10 days after the same
has been requested by Lessee, with no such approval being required for
standard banking fixtures and equipment such as teller window, ATM's, vault
and similar items;
(e) display no lettering, sign, advertisement, notice or object and
permit no such display on the windows or doors or on the outside of the
perimeter walls of the premises except with the prior written consent of
Lessor;
(f) from time to time after the initial term hereof and at Lessee's
expense redecorate the premises and refinish, renew and/or replace the
fixtures, furnishings, decorations and equipment therein as in the
reasonable judgment of Lessor may be necessary to preserve the good
appearance of the premises in keeping with the general standard maintained
in similar areas in the building;
(g) not install, place or permit any awning on the perimeter walls of
the premises unless provided, or consented to in writing by Lessor and each
such awning so provided or consented to shall, to the reasonable
satisfaction of Lessor, be kept clean and in good order and state of repair
and appearance by Lessee, including, whenever necessary in the reasonable
judgment of Lessor, the replacement of awning coverings with materials
reasonably approved by Lessor; and
(h) at all times during the term of this lease, Lessee shall maintain
its entrance to the premises and such entrance shall remain unlocked and
accessible to the public during the business hours of Lessee.
(C) Lessee agrees promptly to comply with all laws, ordinances, orders,
rules and regulations affecting the premises (excluding, however, the
installation of a sprinkler system, which shall be Lessor's responsibility) and
the cleanliness, safety, operation and use thereof. Lessee also agrees to comply
with the recommendations of any insurance company, inspection bureau or similar
agency with respect to the premises. Lessee agrees not to install any electrical
equipment or permit any use that overloads the applicable utility lines
servicing the premises, which Lessor agrees shall provide at least 6 watts per
rentable square foot.
(D) Lessee agrees not to (a) make any use of or allow the premises to be
used in any manner or for any purpose that might invalidate or increase the rate
of insurance thereon (with the operation of a banking business excluded from the
foregoing); (b) keep or use or permit to be kept or used on said
-16-
premises any flammable fluids or explosives without in each instance obtaining
the prior written approval of Lessor; (c) use the premises for any purpose
whatsoever which might create a nuisance; (d) deface or intentionally injure the
building or premises; (e) overload the floors; (f) commit or suffer any waste;
(g) install any vending machines or amusement devices (video or otherwise)
without Lessor's prior written approval; or (h) use, store, install or
distribute on or from the premises any hazardous or toxic chemicals, wastes,
substances or materials. Lessee agrees to pay any increase in the cost of
insurance to Lessor as a result of any unauthorized use of the premises by
Lessee, but such payment shall not constitute in any manner a waiver by Lessor
of its right to enforce all of the covenants and provisions of this lease.
Notwithstanding the foregoing provisions of this Article 5(D), Lessee may use
cleaning materials and office supplies in the ordinary course of its business,
in reasonable quantities and provided that such materials and supplies are used,
stored and disposed of in compliance with all applicable laws, ordinances and
regulations. Nothing in this Article 5(D) or in any other provision of this
lease shall be construed to limit or otherwise affect the provisions of Article
9(F) of this lease.
Article 6. Occupancy, Assignment and Subletting.
(A) Lessee shall not occupy nor permit others to occupy the premises, or
any part thereof, other than as hereinbefore specified, nor shall Lessee
voluntarily, involuntarily or by operation of law assign its leasehold interest,
or mortgage or pledge this lease, without the prior written consent of Lessor.
In addition, Lessee shall not assign or sublet the premises or any part thereof,
without (i) the prior written consent of Lessor and (ii) first offering such
space to Lessor in accordance with Paragraph (B) hereof. If Lessor does consent
in writing to any assignment or sublease, such consent shall not in any way
release Lessee from liability under any of the covenants or conditions of this
lease, and no such consent shall apply to any future or further assignment or
sublease nor bind Lessor to give consent to any further or future assignment or
sublease. Any assignee or sublessee will be bound by the terms of this lease and
any modifications hereof as though such assignee or sublessee were an original
party hereto, all as confirmed in a written instrument satisfactory to Lessor.
Lessor hereby agrees that Lessor will not unreasonably withhold or delay its
consent to any assignment or subletting to another banking institution for the
same use of the premises as permitted hereunder, but any other request for
consent to a sublease or assignment shall be within Lessor's sole discretion.
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(B) If Lessee wishes to assign or sublease the premises or any part
thereof, Lessee must first offer to return the premises (in the case of an
assignment) or portion thereof (in the case of a sublease) to Lessor (which
offer shall be made in writing). If Lessor elects to take back the premises or
such portion thereof, it shall so notify Lessee in writing, within thirty (30)
days after receipt of Lessee's offer, specifying the date on which this lease
shall terminate (in the case of an assignment) or the date on which such portion
of this lease shall terminate (in the case of a sublease), and Lessee shall pay
to Lessor all rent due through such termination date. If Lessor does not accept
Lessee's offer, Lessee may sublease that portion of the premises offered to
Lessor or assign this lease but only upon Lessor's prior written consent, it
being understood and agreed that such consent shall still be required
notwithstanding Lessor's election not to take back such space.
(C) Notwithstanding anything to the contrary set forth herein, Lessor's
consent shall not be required for (and Lessor shall not have a right of
re-capture with respect to) an assignment of this lease or a sublease of all or
any portion of the premises to (i) any person or entity which, directly or
indirectly, controls Lessee or is controlled by Lessee or is under common
control with Lessee, (ii) any successor to Lessee by merger or consolidation, or
(iii) any person or entity to whom all or substantially all of the assets of
Lessee are conveyed.
Article 7. Alterations.
Lessee will make no Material Alteration to the premises without first
submitting a detailed description thereof to Lessor and obtaining Lessor's prior
written approval, which approval shall be within Lessor's reasonable commercial
discretion. The term "Material Alteration" shall mean any (i) any alteration
which could adversely affect any structural component of the building or any of
the building systems or equipment, or the operation or effectiveness thereof, or
the exterior appearance of the building; or (ii) any alteration which is not
consistent with the operation of the premises as a bank; or (iii) any alteration
which costs more than $50,000 (other than an alteration which is cosmetic or
decorative in nature, such as painting). Although Lessor's consent shall not be
required for any alteration which is not a Material Alteration, Lessee shall
nonetheless notify Lessor of such alteration before it is made. Lessee's Work
and all other alterations, additions or improvements made by Lessee and all
fixtures attached to the premises shall, if not removed by Lessee, become the
property of Lessor and remain on the premises upon the expiration or
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termination of this lease. Lessor may require, as a condition of giving its
approval of any Material Alteration, that Lessee remove the same upon the
expiration or termination of this lease, in which case Lessee shall, at its sole
cost and expense remove such Material Alteration and restore the premises to the
condition which existed prior to the installation of such Material Alteration.
In no event shall Lessee be required to remove (a) the vault or any other
fixtures, (b) any portion of Lessee's Work, (c) any alteration or improvement
which is consistent with the operation of the premises as a bank, or (d) any
Material Alteration as to which Lessor did not indicate at the time it approved
such Material Alteration that removal would be required. Lessee shall have the
right, however, at its election to remove from the premises upon the expiration
of the term all of the Equipment, Lessee's Work and any other alterations and
improvements made by Lessee, and all furniture, fixtures and equipment which
Lessee has relocated from its existing space, as described in Article 34 of this
lease. Lessee shall not erect or place, or cause or allow to be erected or
placed, 'any sign, advertising matter, showcase or other article or matter in or
upon the stairways, lobbies, passages, outside walls, windows or sidewalks or
any other areas in, on or about the building (not including the interior of the
premises) without the prior written consent of Lessor. Lessor shall provide
building standard lobby directory signage for Lessee, and Lessor shall permit
lobby signage on Lessee's entrance door to the premises. Subject to Lessor's
prior review and approval of the proposed placard, which shall not be
unreasonably withheld or delayed, Lessor will permit the placement of a placard
on the northeast stone wall in the lobby next to the passageway leading to the
entrance to the premises, the exact location of said placard to be designated by
lessor. Subject to the prior review and approval of Lessor, which approval shall
not be unreasonably withheld or delayed, Lessee shall also be permitted to place
signage on both the interior and exterior surfaces of the northern, southern and
eastern exterior walls of the premises.
Article 8. Rules and Regulations.
The rules and regulations attached to this lease as Exhibit "C" and such
reasonable additions or modifications thereof as mad from time to time be made
by Lessor, upon written notice to Lessee, shall be deemed a part of this lease
with the same effect as though set forth herein, provided the same do not
materially increase Lessee's obligations or decrease Lessee's rights hereunder
and do not contradict any express provisions of this lease. Lessee agrees that
said rules and regulations will be faithfully observed by Lessee and Lessee's
employees and
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invitees, and Lessor agrees that Lessor will not enforce such rules and
regulations against Lessee in a manner which discriminates against Lessee versus
other ground floor tenants. To the extent of any conflict between the rules and
regulations and the express provisions of this lease, the provisions of this
lease shall be controlling. Lessor hereby:
(i) waives the right to approve Lessee's advertising;
(ii) Lessee's antenna permitted by Article 39 shall not be subject to
removal by Lessor, and Lessee's security cameras are hereby approved by
Lessor; and
(iii) "Seeing eye" or guide dogs are not excluded by the rules and
regulations.
Article 9. Fire or Other Casualty Waiver of Subrogation.
(A) In the event of damage to or destruction of the premises caused by fire
or other casualty, or of the entrances and other common facilities necessary to
provide normal access to the premises, or to other portions of the building or
its equipment which portions and equipment are necessary to provide services to
the premises in accordance herewith (collectively the "Base Building"), Lessor
shall make repairs and restorations (the "Restoration") as hereinafter,
provided, unless this lease is terminated by Lessor or Lessee as hereinafter
provided.
(B) Within thirty (30) days after the occurrence of any casualty, Lessor
shall give written notice to Lessee (the "Repair Period Notice") advising Lessee
of the length of time that Lessor will require for Restoration of the part of
the premises or Base Building which has been damaged (the "Estimated Restoration
Period"). Lessor's determination of the Estimated Restoration Period shall be
accompanied by a written certification of an independent architect, engineer or
general contractor. If (i) the damage is of such nature or extent, in the
reasonable judgment of Lessor's independent architect, engineer or general
contractor, that the Estimated Restoration Period would be more than one-hundred
eighty (180) days after the date of the casualty, (with normal work crews and
hours and in the normal course of Restoration of the entire building), or (ii)
less than one year of the lease term would remain at the end of the Estimated
Restoration Period, then either party may terminate this lease within sixty (60)
days after the occurrence of the casualty. Notwithstanding the foregoing, in the
event that Lessor terminates this lease pursuant to ArticlE~9(B)(ii) above
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at a time when Lessee still has the right to exercise an extension option, then
provided that Lessee exercises such extension option within thirty (30) days
after receipt of Lessor's notice of termination, Lessor's notice of termination
shall be null and void and of no force or effect.
(C) In the event of such fire or other casualty, if this lease is not
terminated pursuant to the terms of this Section 9, Lessor shall proceed
diligently to restore the premises and the Base Building to substantially its
condition prior to the occurrence of the damage.
(D) In the event that Lessor does not complete the restoration of the
premises and Base Building within the Estimated Restoration Period then, in such
event, Lessee may at any time prior to substantial completion of such work,
terminate this lease whereupon this lease shall become null and void as of the
date of the casualty and neither party shall have any further liability or
obligation hereunder.
(E) In the case of damage to the premises which is of a nature or extent
that Lessee's continued occupancy is substantially impaired, the annual minimum
rent otherwise payable by Lessee hereunder shall be equitably abated or adjusted
for the duration of such impairment.
(F) Notwithstanding any other provision herein, Lessor and Lessee hereby
release each other from liability for loss or damage to the property of the
party granting such release, even if the loss or damage occurred through the
negligence of such other party or its agents, servants, invitees or employees,
provided that this release shall be effective only with respect to loss or
damage (i) covered by insurance and (ii) occurring during such time as the
relevant insurance policy of the party granting such release contains a clause
to the effect that such release does not affect such policy or the right of the
insured to recover thereunder. Each party will use its best efforts to obtain
such a clause, but if an additional premium is charged therefore, the party
benefiting therefrom, if it desires to have the waiver, will pay to the other
the amount of such additional premium promptly upon being billed therefore. For
purposes of this Article, any deductible amount and the difference between full
replacement cost and the percentage of replacement cost actually insured shall
be treated as if it were recoverable under such policies and as if such policies
included a waiver of subrogation.
Lessor hereby releases Lessee from liability for loss or damage to the
property of Lessor, even if the loss or
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damage occurred through the negligence of Lessee or its agents, servants,
invitees or employees, which loss or damage would be covered under an "all risk"
policy of insurance on the building, whether or not such insurance is actually
maintained.
Article 10. Lessor's Right to Enter.
Lessee will permit Lessor, Lessor's agents or employees or any other person
or persons authorized by Lessor to inspect the premises at any time during
Lessee's normal business hours, and to enter the premises during Lessee's normal
business hours, if necessary, to make alterations, improvements or repairs to
the building, or for any other purpose related to the operation of maintenance
of the building, including showing the space to prospective tenants (during the
last six (6) months of the term), purchasers and mortgagees; provided, however,
that except in an emergency situation which threatens life or property, where no
notice shall be required and when entry may be made at any time, Lessor will not
exercise such right of entry except upon one business day's prior notice (which
may be given by telephone) to Lessee and with Lessee having the right to have a
representative accompany Lessor's representative during any such entry. Lessor
shall exercise its rights under this Article in such manner as not to interfere
in any way with the conduct of Lessee's business in the premises. Lessor shall
promptly repair any damage to the premises caused by the exercise of Lessor's
rights under this Article, except to the extent covered by Lessee's insurance.
In connection with any entry into the premises by Lessor, Lessor will cooperate
with Lessee in recognizing Lessee's special security concerns in its banking
business and shall comply with all security measures established by Lessee with
respect to the premises. Notwithstanding anything to the contrary contained in
the lease, Lessor shall under no circumstances have the right to enter, repair,
inspect, attach, distrain upon or in any way interfere with Lessee's vaults) or
safe deposit boxes, or the checks, drafts or other property of Lessee's
customers.
Article 11. Insurance.
(A) Lessee, at its sole cost and expense, agrees to purchase and keep in
full force and effect during the term hereof insurance under policies issued by
insurers reasonably acceptable to Lessor on its contents, fixtures, furnishings,
equipment and other items of personal property located in the premises,
protecting Lessee from danger or other loss caused by fire or other casualty
including, but not limited to, vandalism,
-22-
perils covered by extended coverage, theft, sprinkler leakage, water damage
(however caused), explosion of heating and cooling or similar apparatus, and
other similar risks in amounts not less than the full insurable replacement
value of such property. Lessee shall obtain plate glass insurance coverage,
which insurance shall be satisfactory to and name Lessor as an insured.
(B) Lessee agrees to deliver, or cause to be delivered to Lessor by
Lessee's general contractor(s) at least ten (10) days prior to the commencement
of Lessee's Work under Article 4, hereof, or the commencement of any work under
Article 7 hereof, a policy or certificate of insurance from a company reasonably
satisfactory to Lessor providing public liability and property damage coverage
in the minimum amount of one million dollars ($1,000,000) for each occurrence
and in the aggregate or in such greater amounts as Lessor may reasonably require
naming Lessee, its general contractor, all subcontractors, and Lessor, its
employees and agents, as additional insured parties endorsed so as to cover any
and all liability arising out of, or in any manner connected with, the work to
be performed on the premises by or for Lessee and a policy or certificate of
insurance evidencing workmen's compensation coverage in the minimum amount
required by Lessor from time to time.
(C) Lessee agrees to maintain during the term hereof, effective on the date
Lessee takes possession of the premises, insurance coverage with respect to the
premises in companies satisfactory to Lessor for bodily, injury, including
death, property damage and personal injury liability and contractual liability
insurance, each with a limit of liability of one million dollars ($1,000,000)
for each occurrence and in the aggregate, all such insurance to include Lessor
and its employees and agents as additional insured parties.
(D) Lessee shall provide Lessor with copies of policies or certificates
evidencing such insurance prior to the date Lessee takes possession of the
premises and from time to time thereafter as required by Lessor evidencing that
the aforesaid insurance is in full force and effect. All policies and
certificates shall provide that a minimum of twenty (20) days written notice
shall be given to Lessor by any such insurance company prior to the
cancellation, termination or change of such coverage. All insurance herein
required shall be deemed to be additional obligations of Lessee and not in
discharge of, or a limitation to, Lessee's obligation to indemnify Lessor and
its employees and agents under Article 13 hereof.
(E) Lessor shall be responsible for insuring or self-insuring the building,
the operation thereof and the other
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liabilities which may be incurred by an owner of property in such manner as
Lessor shall determine, and Lessee shall not be responsible for insuring such
risks.
(F) Neither Lessor nor Lessee will do or commit, or suffer or permit to be
done or committed, any act or thing which shall cause the other party's policies
(or any such policy) to become void or suspended, or which shall cause the
building or the premises to be considered a more hazardous risk.
Article 12. Release of Lessor.
Lessor shall not be held responsible for, and is hereby expressly relieved
from, any and all liability by reason of any injury, loss, or damage to persons
or property in, on or about the premises or the building, whether the same be
due to fire, breakage, leakage, water flow, steam, gas, use, misuse, abuse of
elevators or defects therein, hatches, openings, defective construction or
physical conditions anywhere in the building, failure of water supply, light or
power defects in electrical wiring, plumbing or other equipment or mechanisms,
wind, lightning, storm or any other cause whatsoever, whether the loss, injury
or damage be to the person or property of Lessee or any other person, unless
such injury, loss or damage is the direct result solely of the negligence of
Lessor, its agents or its employees occurring entirely after the date of this
lease.
Article 13. Indemnity.
Subject to Article 9(F) hereof, Lessee agrees to indemnify, defend and hold
harmless Lessor, excepting for Lessor's negligence or the negligence of Lessor(
'I agents and employees, from and against all claims, liabilities, losses,
damages, expenses, actions or causes of action for injury to or death of any
person or loss of or damage to property in or upon the premises and including
the person and property of Lessee, its employees, agents, invitees, licensees or
others, it being understood and agreed that all property kept, stored or
maintained in or upon the premises or in the building shall be at the risk of
Lessee. The foregoing indemnity shall be in addition to Lessee's obligation to
supply the insurance as required by Article 11 hereof and not in discharge of or
substitution for the same.
If any damage to the premises or other property of Lessor results from any
act or neglect of Lessee, its agents or employees, Lessor may at its option
repair such damage, and
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Lessee shall promptly on demand reimburse Lessor for the cost thereof, subject
to Article 9(F) hereof.
Article 14. Repair and Maintenance; Other Services.
(A) Except as otherwise provided in Article 9 hereof, Lessee, at its sole
cost and expense, shall make repairs to or on the premises and to utility lines
to the point of connection for Lessee which may be required to keep the same in
good order, condition and repair, and sanitary, clean, safe, and in sightly
appearance at all times during the term hereof, including those required by any
public utility, unless specifically made Lessor's responsibility under
subparagraph 14(B), below. Any such work by Lessee shall be subject to Lessor's
prior written approval and Lessor may, as agent for and on account of Lessee,
but shall not be obligated to, deal directly with any such public utility
respecting their requirements for additions, improvements, alterations and
repairs. Lessee's responsibility hereunder shall include, without limitation and
at its sole cost, replacement of mechanical equipment required for the premises
and included within Lessee's Work, fixtures, glass (with glass of the same size
and quality), floor covering and ceiling materials, doors and door hardware and
the decoration of the interior and storefront of the premises in order to
maintain the same at all times in a clean and sightly appearance. If Lessee
refuses or neglects to make such repairs or to maintain the premises as herein
provided and such inaction by Lessee results in a dangerous condition, Lessor,
using reasonable judgment, shall have the right, upon giving Lessee ten (10)
days written notice (except in situations deemed to be an emergency by Lessor,
in which case said notice provision is hereby waived), if it elects to do so,
may make such repairs or perform such maintenance on behalf of and for the
account of Lessee and Lessee shall pay Lessor's cost in performing such work
promptly upon receipt of a bill therefor.
(B) Lessor agrees, at its expense, to keep the foundations, utility lines
from the point of connection for Lessee perimeter HVAC system, sprinkler system,
exterior walls, and structural systems of the building in good condition and
repair. Lessor shall not be liable to Lessee for any damages caused by the items
mentioned in the previous sentence being out of repair unless Lessor has had a
reasonable opportunity to have the same repaired after Lessee has notified
Lessor, in writing, of the need for such repair.
(C) During the term of this lease, Lessee agrees to employ a union
contractor reasonably acceptable to Lessor to
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perform annual maintenance and/or preventive maintenance to the cooling and
ventilating units on the premises and any heating units or equipment in the
premises. Lessee further agrees to provide and to pay for (i) regular nightly
cleaning and janitorial services for the premises, and (ii) window washing for
the interior and exterior of the premises at least once every quarter.
Article 15. Utilities.
(A) Electricity for Lessee's operation of the premises will be furnished to
Lessee by Lessor, shall be metered pursuant to a separate meter for the
premises, and shall be paid for by Lessee as additional rent monthly within
fifteen (15) days following Lessee's receipt of Lessor's invoice therefor at the
rate paid by Lessor to the public utility furnishing electricity to the
building. Lessor shall provide electrical service to the premises having a
capacity of at least six (6) watts per rentable square foot for lighting,
business equipment and convenience outlets, and Six (6) watts per rentable
square foot for the operation of Lessee's HVAC system,
Lessor shall provide perimeter HVAC on the same basis as currently supplied
on the ground floor and other utilities necessary for the operation of the
premises, including: (a) hot and cold water for normal lavatory purposes and for
the operation of Lessee's employee kitchen; (b) cold water for drinking
fountains; (b) sewer; and (c) chilled water, condenser water, hot crater and
steam as required or the operation of Lessee's HVAC system. Lessee shall supply
all air handlers and supplementary air conditioning. With the exception of
electricity, Lessor shall not charge Lessee for the cost of such other utility
services` used or consumed at the premises.
(B) Lessee shall comply with all' reasonable rules and regulations which
from time to time may be promulgated by Lessor to conserve fuel and/or energy.
Lessor shall not be liable to Lessee for any loss, damage or expense which
Lessee may sustain or incur if either the quantity or character of utility
service is changed, is no longer available or suitable for Lessee's requirements
or is interrupted, provided that Lessor promptly undertakes any repairs
necessary to restore such service(s). Any riser or risers to supply Lessee's
requirements, upon written request of Lessee, will be installed by Lessor, at
the sole cost and expense of Lessee, if, in Lessor's sole judgment, the same are
necessary and will not cause permanent damage or injury to the building or the
premises or cause or create a dangerous or hazardous condition or entail
excessive or unreasonable alterations or repairs or interference with other
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building occupants. In addition to the installation of such riser or risers,
Lessor will, at the sole cost and expense of Lessee, install all other equipment
proper and/or necessary in connection therewith, subject to the aforesaid terms
and conditions. Lessee covenants and agrees that at all times its use of
electric current shall never exceed the capacity of existing feeders to the
building or the risers' wiring installations, of not less than six watts per
rentable square foot.
Article 16. Events of Default-Remedies.
(A) The following events, or any one or more of them, shall constitute
events of default under this lease:
(i) Lessee shall fail to pay any minimum rent, additional rent or
other sum payable hereunder within ten (10) days after written notice that
the same is due and payable; provided, however, that Lessor shall not be
responsible for giving such notice and Lessee shall not be entitled to such
opportunity to cure more than four (4) times in any period of twelve (12)
consecutive months; or
(ii) Lessee shall fail to perform or comply with any of the other
terms, covenants, agreements or conditions hereof and such failure shall
continue for more than thirty (30) days after written notice thereof from
Lessor; provided, however, that if the default is of such a nature that 2t
cannot be cured within thirty (30) days, Lessee shall not be considered in
default if Lessee shall, within such period, have commenced with due
diligence and dispatch to cure such default and shall thereafter complete
with due diligence and dispatch the curing of such default; or
(iii) Lessee shall fail to keep the premises open for business in
accordance with the terms of this lease; or
(iv) Lessee shall vacate or desert the premises or remove or attempt
to remove Lessee's goods or property from the premises, except in the
ordinary and usual course of business; or
(v) Lessee shall make a general assignment for the benefit of
creditors, or shall admit in writing Lessee's inability to pay Lessee's
debts as they become due, or shall file a petition under any of Chapters 7,
11 or 13 of the Bankruptcy Code, or shall be adjudicated insolvent, or
shall file a petition seeking any reorganization, arrangement, composition,
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readjustment, liquidation, dissolution or similar relief under any present
or future statute, law or regulation relating to bankruptcy or insolvency,
or shall file an answer admitting or not contesting the material
allegations of a petition against Lessee in any such proceeding, or shall
seek or consent to or acquiesce in the appointment of any trustee, receiver
or liquidator of Lessee or any material part of Lessee's properties, or
shall be seized by any governmental agency or authority having jurisdiction
over Lessee.
If there is any guarantor or surety of this lease, then subparagraph
(v) shall apply to any such guarantor or surety as if the word Lessee in
said subparagraph had been amended to read "Lessee and Lessee's guarantor
and/or surety or some or any of them".
The notice and grace period provisions in subparagraphs (i) and (ii)
above shall have no application to the defaults referred to in
subparagraphs (iii), (iv) and (v) above.
(B) Upon the occurrence of any such event of default (regardless of the
pendency of any proceeding which has or might have the effect of preventing
Lessee from complying with the terms of this lease), Lessor at any time
thereafter may exercise any one or more of the following remedies:
(i) Termination of Lease. Lessor may terminate this lease, without any
right by Lessee to reinstate Lessee's rights by payment of rent due or
other performance of the terms and conditions hereof. Upon such
termination, Lessee shall immediately surrender possession of the premises
to Lessor, and Lessor shall immediately become entitled to receive from
Lessee liquidated and agreed damages for the unexpired balance of the term
equal to the difference between the aggregate rentals reserved for the
balance of the then current term, and the fair rental value of the premises
for that period, determined as of the date of such termination; provided,
that the amount of such damages shall be discounted at the rate of 5o per
annum for the period from the date of payment by Lessee to Lessor to the
date of expiration of the term.
(ii) Reletting. With or without terminating this lease, as Lessor may
elect, Lessor may re-enter. and repossess the premises, or any part
thereof, breaking open locked doors if necessary, and lease them to any
other person upon such terms as Lessor shall deem reasonable, for a term
within or beyond the then current term of this lease; provided, that any
such reletting prior to termination shall be for the account of Lessee and
Lessee shall remain liable for (a) all minimum rent,
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percentage rent, additional rent and other sums which would be payable
under the lease by Lessee in the absence of such termination or
repossession, less (b) the net proceeds, if any, of any reletting effected
for the account of Lessee after deducting from such proceeds all of
Lessor's reasonable expenses in connection with such reletting (including,
without limitation, all repossession costs, brokerage commissions, legal
expenses, attorneys' fees and expenses, employee's expenses, alteration
costs, and expenses of preparation for such reletting). Lessor shall use
commercially reasonable efforts to mitigate its damages.
If the premises are at the time of an event of default occupied by a
subtenant or assignee, Lessor may, as Lessee's agent, collect rents due from
such occupant and apply such rents to the rent and other amounts due hereunder
without in any way affecting Lessee's obligation to Lessor hereunder. Such
agency, being given for security, is hereby declared to be irrevocable.
(C) No expiration or termination of this lease pursuant to subparagraph
(B)(i) above or by operation of law, and no repossession of the premises or any
part thereof pursuant to paragraph (B) above or otherwise shall relieve Lessee
of Lessee's liabilities and obligations hereunder, all of which shall survive
such expiration, termination or repossession, and Lessor may, at its option, sue
for and collect rent and other charges due hereunder at any time and from time
to time as and when such charges accrue.
(D) Lessor may remove all persons and property from the premises, and store
such property in a public warehouse or elsewhere at the cost of and for the
account of Lessee, without service of notice or resort to legal process (all of
which Lessee expressly waives,) and without being` deemed guilty of trespass or
becoming liable for any loss or damage which may be occasioned thereby.
(E) The parties hereto hereby waive trial by jury in any action,
proceedings, or counterclaim brought by either of them against the other for any
matters arising out of or in any way connected with this lease, the relationship
of Lessor and Lessee, Lessee's use or occupancy of the premises, and/or any
claim of injury or damage. This shall not be construed, however, as a waiver of
Lessee's right to assert any such claims in any separate action brought by
Lessee.
(F) Lessee hereby expressly waives any and all rights of redemption granted
by or under any present or future
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law in the event this lease is terminated or Lessee is evicted or dispossessed
by reason of violation by Lessee of any of the provisions of this lease.
(G) In the event of breach or threatened breach by either party of any
provision of this lease, the other party shall have the right of injunction as
if other remedies were not provided for herein.
(H) No right or remedy herein conferred upon or reserved to either party is
intended to be exclusive of any other right or remedy herein or by law provided,
but they shall be cumulative and each shall be in addition to every other right
or remedy given herein or now or hereafter existing at law or in equity or by
statute; and all such rights and remedies may be pursued singularly,
cumulatively and successively, as the other party hereto may elect.
(I) Any rent (including percentage rent and all charges and other sums
collectible as additional rent), overdue for a period of more than ten (10) days
shall bear interest at the rate (the "Default Rate") of two percent (20) per
annum above the prime rate of interest announced from time to time by CoreStates
Bank, N.A. of Philadelphia, Pennsylvania (or its successor) (or the highest rate
allowed by law, if less) until paid. Such interest shall be considered
additional rent and shall be payable on demand.
(J) If an event of default by Lessee hereunder shall occur, Lessor may
perform the same for and at the expense of Lessee, after first giving notice to
Lessee of its intention to do so, except that no such notice shall be required
in the event of an emergency requiring immediate action. If Lessor at any is
compelled to pay, or elects to pay, any sum of money, or to do any act which
will require the payment of any sum of money, by reason of the failure of Lessee
to comply with any provisions hereof, or if Lessor is compelled to incur any
expense, including reasonable counsel fees, in instituting, prosecuting or
defending against any action or proceeding instituted by reason of any default
by Lessee hereunder, the amount of such payments or expenses shall be paid by
Lessee to Lessor as additional rent on the next day following such payment or
the incurring of such expenses upon which a regular monthly rental payment. is
due, together with interest thereon at the Default Rate.
(K) No waiver by either party of any breach by the other party of any of
such other party's obligations, agreements or covenants, hereunder shall be a
waiver of any subsequent breach or of any other obligation, agreement or
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covenant, nor shall any forbearance by either party to seek a remedy for any
breach by the other party be a waiver by such party of its rights and remedies
with respect to such breach or any subsequent breach.
(L) Both parties expressly waive any right of defense which it may have
based on any purported merger of any cause of action, and neither the
commencement of any action or proceeding nor the settlement thereof or entering
of judgment therein shall bar either party from bringing subsequent actions or
proceedings from time to time.
(M) Upon the expiration of the then current term of this lease or the
earlier termination or surrender hereof as provided in this lease, it shall be
lawful for any attorney to appear as attorney for Lessee as well as for all
persons claiming by, through or under Lessee and to sign an agreement for
entering, in any competent Court an action in ejectment against Lessee and all
persons claiming by, through or under Lessee and therein confess judgment for
the recovery by Lessor of possession of the premises, for which this lease (or a
copy thereof) shall be a sufficient warrant, whereupon, if Lessor so desires, a
writ of possession or other appropriate writ under the Rules of Civil Procedure
then in effect may issue forthwith, without any prior writ or proceedings;
provided, however, that if for any reason after such action shall have been
commenced, the same shall be determined and possession of the premises remain in
or be restored to Lessee, Lessor shall have the right for the same event or
events of default and upon any subsequent event or events of default, or upon
expiration of the term of this lease, to bring one or more further action or
actions as hereinbefore set forth to recover possession of the premises and
confess judgment for the recovery of possession of the premises as hereinabove
provided.
(N) In any action of ejectment, Lessor shall first cause to be filed in
such action an affidavit made by Lessor or someone acting for Lessor, setting
forth the facts necessary to authorize the entry of judgment, and, if a true
copy of this lease (and of the truth of such copy such affidavit shall be
sufficient evidence) be filed in such action, it shall not be necessary to file
the original as a warrant of attorney, any rule of Court, custom or practice to
the contrary notwithstanding. Lessee hereby releases to Lessor and to any and
all attorneys who may appear for Lessee all procedural errors in said
proceedings and all liability therefor. If proceedings shall be commenced by
Lessor to recover possession under the Acts of Assembly and Rules of Civil
Procedure, either at the end of the term or earlier termination of this lease,
or for nonpayment of rent or any other
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reason, Lessee specifically waives the right to the three (3) months' notice
required by the Landlord and Tenant Act of 1951, and agrees that five (5) days'
notice shall be sufficient in either or any such case.
(0) Lessor expressly waives the right to distrain against the goods or
property of the Lessee which at any time may be located upon the premises.
Furthermore, in the event that Lessor shall at any time and in any manner
acquire possession of the premises, Lessor agrees that in the event there are
located at the premises safe deposit boxes that contain the property of
customers of Lessee, that possession of the premises by Lessor shall in no way
include the right to claim or assert any lien against the property of the third
parties that is located in such safe deposit boxes and Lessor agrees to fully
cooperate in efforts to assist such parties to recover their assets held in said
safe deposit boxes. Lessee covenants and agrees to reimburse Lessor for any and
all costs incurred by Lessor in connection with its efforts in assisting such
third parties to recover their assets held in safe deposit boxes, as aforesaid.
Article 17. Intentionally Omitted.
Article 18. Subordination.
Lessor represents to Lessee that there are no mortgages, ground leases or
other encumbrances now existing on or against the building or the lot on which
it is located. Lessee agrees, upon written request of Lessor, to execute,
acknowledge and deliver such instruments as shall be desired by any subsequent
mortgagee or proposed mortgagee or by any person holding or about to acquire a
ground rent or other encumbrance, to subordinate this lease to such lien or
other encumbrance and to attorn to the holder thereof, provided always that such
holder grants to Lessee rights of non-disturbance and attornment pursuant to an
instrument in form and substance satisfactory to Lessee in Lessee's reasonable
discretion.
Article 19. Condemnation.
(A) In the event of exercise of the power of eminent domain whereby (i)
such portion of the building is taken that Lessor is unable to provide the
services under this lease or access to the premises is permanently impaired, or
(ii) all or substantially all of the premises or the building is taken, or (iii)
if less than substantially all of the building is taken but
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Lessor, acting in good faith, determines that it is economically unfeasible to
continue to operate the condemned portion as a first-class office building, or
(iv) if less than substantially all of the premises is taken, but Lessee, acting
in good faith, determines that because of such taking it is economically
unfeasible to continue to conduct its business in the uncondemned portion of the
premises, then in the case of (i) or (ii), either party and in the case of (iii)
Lessor, and in the case of (iv), Lessee, shall have the right to terminate this
lease as of the date that possession of that part which was taken is required to
be delivered or surrendered to the condemning authority in which event all rent
and other charges shall be adjusted to the date of termination.
(B) In the event of any total or partial taking of the premises, Lessor
shall be entitled to receive the entire award in any such proceeding and Lessee
hereby assigns any and all right, title and interest of Lessee now or hereafter
arising in or to any such award or any part thereof and Lessee hereby waives all
rights against Lessor and the condemning authority, except that to the extent
permitted by applicable law, Lessee shall have the right to claim and prove in
any such proceeding and to receive any award which may be made to Lessee,
specifically for loss of good will, trade fixtures, equipment and moving
expenses and the unamortized cost of any improvements made by Lessee at its sole
cost so long as the same do not reduce the award otherwise payable to Lessor.
Article 20. Limitation on Lessor's Liability.
The Lessor named in the first paragraph of this lease and any subsequent
owner of the building shall be liable only for obligations accruing during the
period of its ownership or interest in the building, and the liability of any
such Lessor and all of its officers, directors, employees, agents and/or
partners, as the case may be, shall be limited to such Lessor's estate or other
title to or interest in the building and the proceeds thereof following sale,
condemnation or casualty.
Article 21. Parties Bound.
This lease shall be binding upon, and shall inure to the benefit of, the
parties hereto, their respective personal representatives, successors and
assigns, subject to the provisions of this lease restricting assignment without
consent. Notwithstanding the foregoing, or anything else herein contained, in
the event that Lessor's interest or estate in the premises
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shall terminate by operation of law or foreclosure sale or for any other reason,
or if for any reason Lessor ceases to be entitled to the rentals hereunder, then
in any such event Lessor shall be released and relieved from all liability and
responsibility thereafter accruing to Lessee in connection with any of the
terms, covenants or conditions to be performed by Lessor under this lease or by
operation of law, and Lessee shall look only to the purchaser or other successor
or assignee of Lessor for such performance.
Article 22. Notices.
Any notices required or permitted to be given hereunder by either party to
the other shall be in writing and delivered personally or sent by United States
registered or certified mail, postage prepaid, addressed as follows: if to
Lessor, c/o Sann & Howe, 200 Park Avenue, New York, New York 10166, Attention:
Edwin A. Howe, Jr., Esquire, with copies to CB Commercial Real Estate Group,
Inc. Two Penn Center Plaza, Suite 600, Philadelphia, Pennsylvania 19102,
Attention: Building Manager, and to Argus Realty Services, Inc., 450 Lexington
Avenue, Suite 1970, New York, New York 10017-3904, and if to Lessee, at the
premises (or Lessee's address as hereinafter set forth if mailed to Lessee prior
to Lessee's occupancy of the premises), with copies to Mr. Sharnia Buford, 714
Market Street, Philadelphia, PA 19106-2397 and David Felder, Esquire, Saul Ewing
Remick & Saul, 3800 Centre Square West, Philadelphia, PA 19102, or if the
address of such other party for notices shall have been changed as hereinafter
provided, to such other party at such changed address. Either party may at any
time change the address for such notices by delivering or mailing to the other
party, as aforesaid, a notice advising of the change and setting forth the new
address. If the term "Lessee" as used in this lease refers to more than one
person or entity, any notice, consent, approval, request, communication, bill,
demand or statement given as aforesaid to any one of such persons shall be
deemed to have been duly given to Lessee.
Article 23. Condition of Premises.
Lessee hereby acknowledges that Lessee has examined the premises and that
taking possession of the premises shall be an acknowledgement by Lessee that the
premises are in good and tenantable condition, and satisfactory to Lessee, at
the beginning of the term hereof. Lessor is under no duty to make repairs or
alterations at the time of letting or at any time thereafter except" as
specially set forth elsewhere herein.
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Article 24. Number and Gender.
For the purposes of this lease, the singular shall include the plural and
the plural shall include the singular, and the masculine shall include the
feminine and the neuter, and the neuter shall include the masculine and the
feminine, as the context may require.
Article 25. Captions.
The captions contained herein are for the convenience of the parties only.
They do not in any way modify, amplify, alter or give full notice of the
provisions hereof.
Article 26. Amendments.
This lease may be modified or amended only by an instrument in writing
signed by the party against which enforcement of such modification or amendment
is sought.
Article 27. Partial Invalidity.
If any clause or provision of this lease, or the application thereof to any
person or in any circumstance, shall to any extent be invalid or unenforceable,
the remainder of this lease, or the application of such clause or provision to
persons or in circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each clause and provision of
this lease shall be valid and enforceable to the fullest extent permitted by
law.
Article 28. Lessee's Estoppel Certificate.
Lessee shall deliver to Lessor, within ten (10) days after request therefor
(but not more often than twice in any twelve month period), a certificate to
such person as Lessor may designate, certifying that this lease is unamended and
in full force and effect and that there are no defaults by Lessor or setoffs
against rent hereunder, and the date to which rent has been paid; provided, that
in the event this lease has been amended or if there are any alleged defaults or
set-offs as aforesaid, such certificate shall specify in precise detail the
nature thereof. Lessor shall deliver to Lessee, within ten (10) days after
request therefor (but not more frequently than twice in any
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twelve month period), a certificate to such person as Lessee may designate,
certifying that this lease is unamended and in full force and effect and that
there are no defaults by Lessee hereunder, and the date to which rent has been
paid; provided, that in the event this lease has been amended or if there are
any alleged defaults as aforesaid, such certificate shall specify in precise
detail the nature thereof.
Article 29. Holding Over.
If Lessee shall fail to surrender possession of the premises and remove all
of its property therefrom upon termination of this lease, then Lessor may at its
option treat Lessee as a tenant from month to month on all the terms and
conditions in effect during the final month of the lease term, except that the
minimum monthly rent during any such holdover period shall be 125% of the
minimum rent payable by Lessee during the final month of the lease term plus all
additional rent at the rate then in effect. For purposes of this clause, the
word "rent" shall include minimum rent, percentage rent and all additional rent,
including, without limitation, any amounts payable under applicable escalation
clauses; if escalation clauses involve annualized calculations, a pro rata
portion of rent escalation charges for the last year of the lease term shall be
considered an item of additional rent payable during the holdover period.
Article 30. Entire Agreement.
This lease constitutes the entire agreement between the parties hereto.
Except as set forth herein, there are no promises, representations or
understandings between the parties of any kind or nature whatsoever.
Article 31. Chances to Building
Except as hereinafter set forth, Lessor reserves the right to make any
alterations, modifications, changes or additions to the building and common
areas it deems necessary or appropriate (excluding the premises); to change the
identity and type of stores and tenancies and the dimensions thereof; to change
the name of the building in which the premises are located; to change the
address or designation of the building in which the premises are located; to
convert common areas into leasable areas (including installation of kiosks) or
construct temporary or permanent buildings or improvements in the common
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areas and change the location or character of or make alterations in or
additions to the common areas; provided, however, that no such changes will
interfere with the location of, or access to, the premises herein demised or
otherwise interfere with or adversely affect Lessee's business. Lessor
acknowledges that the ability to obtain open, unimpeded and visible frontage on
three sides of the building and access to and from the main lobby of the
building is a material inducement to Lessee's entering into this lease with
Lessor. Lessor shall not, in the exercise of its rights under this Article, take
any action which would adversely affect any of the foregoing.
Article 32. Brokers.
Each party hereto represents and warrants to the other that it has dealt
with no broker or other real estate agent so as to entitle such agent to a
commission or fee with respect to this lease other than CB Commercial Real
Estate Group, Inc. (the "Broker"). The Broker's fee shall be paid by Lessor.
Each party hereto covenants and agrees to indemnify and hold the other party
hereto harmless from any and all claims for fees and commissions claimed by any
other broker with whom the indemnifying party has had any dealings or
negotiations with respect to this lease, including attorney's fees arising in
connection therewith: Lessor shall indemnify Lessee and hold Lessee harmless
against any claims by the Broker.
Article 33. Liens.
Provided Lessor advances the Allowance in accordance with the terms and
conditions hereof, Lessee agrees promptly to pay for any work done or materials
furnished by or on behalf of Lessee in, on or about the premises arid will not
permit or suffer any lien to attach to the premises or all or any part of the
building by reason thereof, and Lessee shall have no authority or power, express
or implied, to create or cause any lien, charge or encumbrance of any kind to be
filed against the premises or all or any apart of the building. In the event any
lien shall at any time be filed against the premises or any part of the building
by reason of work, labor, services or materials alleged to have been performed
or furnished by, for or to Lessee or to anyone holding the premises through or
under Lessee (excluding Lessor's Work or any other work for which Lessor is
responsible hereunder), Lessee shall forthwith cause the same to be discharged
of record or bonded to the satisfaction of Lessor. If Lessee shall fail to cause
such lien forthwith to be so discharged or bonded within forty-five (45) days
after being
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notified of the filing thereof, then, in addition to any other right or remedy
of Lessor, Lessor may discharge the same by paying the amount claimed to be due,
and the amount so paid by Lessor and all costs and expenses, including
reasonable attorney's fees incurred by Lessor in procuring the discharge of such
lien, shall be due and payable by Lessee to Lessor as additional rent on the
first day of the next following month.
Article 34. Existing Lease.
Lessee is currently occupying other space in the building pursuant to a
lease between Penn Center Plaza No. Two, Ltd., an Ohio limited partnership and
Lessor's predecessor in interest as the owner of the building, as landlord, and
Home Unity Savings & Loan Association, as tenant, dated February 13, 1986, as
thereafter amended (as so amended, the "Existing Lease"), Lessee having
succeeded to the tenant's interest thereunder effective as of August 27, 1993.
Lessor, as a material inducement to Lessee to enter into this lease, hereby
agrees with Lessee, and Lessee hereby agrees with Lessor, that the Existing
Lease and the respective rights and obligations of the parties thereunder shall
continue in full force and effect upon all of its terms and conditions (except
as to its expiration date) until the Commencement Date and shall automatically
and without the necessity of any further action by Lessor or Lessee terminate on
the Commencement Date of the initial term of this lease (or, if this lease is
for any reason terminated prior to the Commencement Date, the Existing Lease
shall automatically terminate on the later of the date on which this lease
terminates or February 28, 1994), except for liabilities accrued to the date of
such termination, including, without limitation, Lessee's liability for all
minimum and additional rent due under the Existing Lease through the date of
such termination and Lessee's obligation to surrender the premises demised by
the Existing Lease to Lessor.
Lessor further agrees with Lessee that (i) Lessee shall have the right (but
not the obligation) to relocate and utilize all of said former tenant's trade
fixtures, furniture and equipment, including safety deposit boxes, ATM's arid
night depositories, acquired by Lessee from The Resolution Trust Corporation,
4nd (ii) Lessee shall have no obligation to (a) restore or repair the premises
demised pursuant to the Existing Lease at the termination thereof, (b) remove
the vault or any other fixtures or equipment from such space, or (c) remove the
vault or any other fixtures from the premises demised hereunder at the
expiration of this lease.
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Untenantability.
Notwithstanding any other provision of this lease, if the premises or any
part thereof shall be rendered untenantable for any reason (other than by reason
of any failure by Lessee to perform any of its obligations under this lease),
then except in the case of damage by fire or other casualty (where Article 9
controls):
(A) all annual minimum rent and additional rent shall abate for the
period that the premises remain untenantable (or, in the event that part
but less than all of the premises is rendered untenantable, minimum and
additional rent shall abate for such period with respect to the portion of
the premises that is rendered untenantable); and
(B) in any case that any such untenantability shall continue for a
period of thirty (30) consecutive days, Lessee shall have the right to
terminate this lease at anytime after the expiration of such 30-day period
and prior to resumption of tenantability, by serving Lessor with written
notice thereof, provided that if Lessor is unable to restore the premises
to a tenantable condition by reason of factors beyond Lessor's reasonable
control, such 30-day period shall be extended until Lessor is able to
undertake the necessary actions but not beyond a maximum of five (5)
months.
Article 36. Lessor's Additional Representations and Warranties.
In addition to all representations and warranties set forth elsewhere in
this lease, Lessor represents and warrants that to Lessor's knowledge:
(A) The building is zoned C-5 Commercial, and that the use of the
premises for operation of a retail bank is legal.
(B) There are no uncured notices of violation issued by any
governmental authority with respect to the premises.
(C) There is no asbestos and no other hazardous, dangerous or toxic
materials or substances in the premises or the building other than
customary solvents and other materials used in cleaning and maintenance of
the building.
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Article 37. Lessor's Additional Covenants
In addition to all covenants and agreements of Lessor set forth elsewhere
in this lease, Lessor hereby covenants and agrees as follows:
(A) Lessee, upon paying rent and observing and keeping all covenants,
agreements and conditions of this lease on its part to be kept, shall quietly
have and enjoy the premises during the term without hindrance or molestation by
anyone claiming by or through Lessor, subject, however, to the exceptions,
reservations and conditions of this Lease.
(B) In connection with any financing obtained by Lessee for the acquisition
of furniture and equipment, Lessor shall, without unreasonable delay execute a
waiver of lien (in form reasonably acceptable to Lessor) to enable Lessee to
procure such financing.
(C) Lessor shall operate, maintain and manage the building in a manner
consistent with the operation, maintenance and management of first-class office
buildings in center city Philadelphia.
(D) Lessor shall provide a security guard or similar security at the front
desk located in the lobby at all times, including weekends, holidays and after
business hours.
(E) Lessor will maintain the building common areas in good condition and
repair, and will maintain the sidewalks surrounding the building in good
condition and repair, substantially free of accumulations of trash and
reasonably free of snow and ice.
Article 38. Lessor's Default.
If after the Commencement Date Lessor shall continuously be in default for
10 consecutive days following written notice from Lessee in the performance of
any of its obligations to provide any service to the premises after written
notice thereof from Lessee (unless the default is not susceptible of cure within
10 days after such notice, in which event Lessor shall have failed to commence
curing the default within such 10day period after written notice thereof and to
diligently prosecute such cure until completion), then in addition to any other
rights Lessee may have in law or equity, Lessee may (but shall not be obligated
to) cure such default on behalf of Lessor, and Lessor shall reimburse Lessee
upon demand for all reasonable out-of-pocket costs incurred by Lessee in curing
such default,
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together with interest at the Default Rate from the date such costs were
incurred by Lessee to the date of reimbursement. In the event that Lessor fails
to pay such amounts to Lessee within ten (10) days after Lessee has made request
for payment, Lessee may at its election set off the amounts due against the
payments of rent thereafter coming due under this lease. Notwithstanding the
foregoing, Lessee shall not have any right in exercising its remedies under the
preceding sentence to make any repairs or modifications to the building systems
except those within or solely affecting the premises.
Article 39. Communications Antenna or Dish.
Lessee shall be permitted to install at its expense a communications
antenna or dish on the roof of the building, without payment to Lessor of any
additional rent or charge therefor, provided (i) the size, wiring, electronics,
location, material and color of the communications antenna or dish shall be
subject to Lessor's prior written approval, which approval shall not be
unreasonably withheld or delayed; and (ii) Lessee shall have obtained necessary
approvals for the communications antenna or dish from all governmental
authorities having jurisdiction over the building.
Article 40. Consents and Approvals.
Where pursuant to any provision of this lease the consent or approval of
Lessor or Lessee is required with respect to any matter or thing, such consent
or approval shall, unless otherwise expressly provided to the contrary in
specific sections of this lease, not be unreasonably withheld or delayed.
Article 41. Authority.
Each individual executing this lease on behalf of Lessor and Lessee
represents and warrants that he or she is duly authorized to execute and deliver
this lease on behalf of Lessor arid Lessee respectively and that this lease is
binding upon Lessor and Lessee respectively in accordance with its terms.
Article 42. Condition Precedent.
Notwithstanding anything contained in this' lease to the contrary, it is
agreed that this lease is specifically conditioned upon Lessee's receipt of all
necessary approvals from the Pennsylvania Department of Banking and the Federal
Reserve Board for Lessee's use of the premises as a commercial branch bank and
any other regulatory authority having jurisdiction over the use of the premises
by Lessee as a commercial branch bank.
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Lessee shall use reasonable efforts and shall diligently proceed to obtain such
approvals promptly; if the same shall not have been obtained within ninety (90)
days from the execution of the lease, either party by notice to the other may
terminate this lease, and neither party shall have any liability to the other
after such termination is effective.
IN WITNESS WHEREOF, the parties hereto have executed this lease, under
seal, the day and year first above written.
LESSEE:
UNITED BANK OF PHILADELPHIA
By: /s/ Emma C. Chappell
-----------------------------------
Emma C. Chappell
Title: Chairman, President & CEO
[Corporate Seal] Attest: /s/ Sharnia Buford
-------------------------------
Sharnia Buford
Title: Executive Vice President
LESSOR:
ORESTES REAL ESTATE CORPORATION B.V.
By: /s/__________________________ /s/_____________________________
Managing Director Managing Director
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MAP
1ST FLOOR PLAN
EXHIBIT "C"
RULES AND REGULATIONS
Lessee covenants and agrees with Lessor that:
1. Lessee shall not affix or maintain outside the premises, including the
exterior of the glass panes and supports of the show windows (and within
twenty-four (24) inches of any window), door and the exterior walls of the
premises, or any place within the premises, if intended to be seen from the
exterior of the premises, any signs, advertising placards, names, insignia,
notices, trademarks, descriptive material or any other such like item or items
except such as shall have first received written approval of Lessor as to size,
type, color, location, copy, nature and display qualities. No symbol, design,
name, mark or insignia adopted by Lessor for the building shall be used without
the prior written consent of Lessor. No illuminated signs in the interior of the
premises which are visible from outside the premises shall advertise any
product. All signs located in the interior of the premises shall be in good
taste so as not to detract from the general appearance of the premises or the
building. Lessee shall not use handbills or other forms of advertising without
the prior written approval of Lessor.
2. No awning or other projection shall be attached to the exterior walls of
the premises or the building.
3. No furniture, packages, equipment, supplies or merchandise of Lessee
will be received into the building, or carried up or down in the elevators of
stairways, except during such hours as shall be designated by Lessor, and Lessor
in all cases shall have the exclusive right to prescribe the method and manner
in which the same shall be brought into or taken out of the building. Lessor
shall in all cases have the right to exclude heavy furniture, safes,
merchandise, and other articles from the building which may be hazardous or to
require them to be located at designated places in the premises. The cost of
repairing any damage to the building caused by taking in or out furniture,
safes, merchandise or any article, or any damage caused while the same shall be
in the premises, shall be paid by Lessee.
4. All garbage and refuse shall be kept in the kind of container specified
by Lessor, shall be placed in the areas specified by Lessor and prepared for
collection in the manner and at the times and placed specified by Lessor. If
Lessor shall provide or designate a service for picking up refuse and garbage,
Lessee shall use same at Lessee's cost, provided such cost shall be competitive
to any similar service available to Lessee.
5. No radio or television or other similar device shall, be installed, and
no aerial shall be erected on the roof, on exterior walls of the premises or the
building, or on the grounds, without the prior written consent of Lessor. Any
such device shall be subject to removal without notice, at any time. Any costs
for such removal shall be borne by Lessee.
6. No loudspeakers, television sets, phonographs, radios or other devices
shall be used in a manner so as to be heard or to be seen outside the premises,
without the prior written consent of Lessor.
7. Sales using the auction method of selling, fire sales (except for those
solely involving merchandise damaged at the premises), and closing out or going
out of business sales (except for those conducted by Lessee itself for a
reasonable period of time which are an integral part of Lessee's conclusion of
business at the premises and the termination of Lessee's lease for the
premises), shall not be conducted on or about the premises without the prior
written consent of Lessor.
8. Lessee shall keep its display windows illuminated and :signs and lights
on the storefront lighted each and every day of the term hereof during the hours
designated by Lessor.
9. Lessee shall not place nor permit any obstructions or merchandise in the
service corridors, sidewalks, entrances, passages, courts, corridors, elevators
or stairways.
10. Lessee shall use such pest extermination contractor as Lessor may
direct and at such intervals as Lessor may require, provided the cost thereof is
competitive to any similar service available to Lessee.
11. Lessee will cooperate and participate in all security programs
affecting the building.
12. Lessee shall not do or commit, or suffer or permit to be done or
committed, any act or thing whereby, or in consequence whereof, the rights of
other tenants will be obstructed or interfered with, or other tenants will in
any other way be injured or annoyed. Lessee shall not use nor keep nor permit to
be used or kept in the store any matter having an offensive odor, nor any
kerosene, gasoline, benzine, fuel, or other explosive of highly flammable
material. No birds, fish or animals shall be brought into or kept in or about
the premises. In addition, no person shall use the premises as sleeping
quarters.
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13. Lessee shall obtain all permits or licenses necessary to conduct its
business.
14. Except for those exclusively for use by employees of Lessee which are
not visible from the sales area of the premises or the exterior of the premises,
Lessee shall not operate any coin or token operated vending machine or similar
device for the sale of any goods, wares, merchandise, food beverages, or
services, including, but not limited to, pay telephones, pay lockers, pay
toilets, scales, amusement devices and machines for the sale of beverages, food,
candy, cigarettes or other commodities, without the prior written consent of
Lessor.
15. Lessee shall not place or maintain any temporary fixture for the
display of merchandise in front of or within any entrance to the premises which
is within. six (6) feet of the front lease line of the premises or within three
(3) feet of any recessed entry of the premises, except such as shall have first
received the written approval of Lessor as to size, color, location, nature and
display qualities.
16. Lessee shall not make noise, cause disturbances or vibrations or use or
operate any electrical or electronic devices or other devices that emit sound or
other waves or disturbances, or create odors (any of which may be offensive to
other tenants and occupants of the building) or that would interfere with the
operation of any device or equipment or radio or television broadcasting or
reception from or within the building or elsewhere.
17. These rules and regulations are not intended to give Lessee any rights
or claims in the event that Lessor does not enforce any of them against other
tenants or, if Lessor does not have the right to enforce them against any other
tenants, and such non-enforcement will not constitute a waiver as to Lessee.
18. Smoking is not permitted in the common areas of the building, including
the restrooms, elevators and elevator lobbies, ground floor lobby, corridors and
fire towers.
19. No bicycles or portions thereof are permitted in the building,
including the common areas thereof, and Lessor is not responsible for bicycles
left outside the building.
The foregoing covenants and agreements in this Exhibit "C" shall be
referred to collectively as "Rules and Regulations".
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Lessee agrees that Lessor may amend, modify and delete present rules and
regulations or add new and additional reasonable rules and regulations for the
use and care of the premises, the building of which the premises are a part, the
common areas and all of the Concourse. Lessee understands and agrees that such
rules and regulations are necessary in order to maintain a high quality center
although they may affect Lessee's method of operating and merchandising its
store at the premises and Lessee agrees to comply with all such rules and
regulations upon notice to Lessee from Lessor or upon the posting of the same in
such place within the Concourse as Lessor may designate.
In the event of any breach of any of the rules and regulations herein set
forth or any amendments or additions thereto, Lessor shall have all remedies in
this lease provided for default of Lessee.
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