Exhibit
10.3
PENNSYLVANIA
FULL SERVICE LEASE
353 ASSOCIATES
Landlord
and
GMH CAPITAL PARTNERS COMMERCIAL
REALTY SERVICES, LP
GMH CAPITAL PARTNERS ASSET
SERVICES, LP
GMH PHILADELPHIA BARRAGE,
LLC
GMH CONSTRUCTION COMPANY,
INC.
GMH ASSOCIATES,
INC.
Tenant
10 Campus
Boulevard
Newtown Square, PA
19073
TABLE OF CONTENTS
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LEASE
THIS LEASE (“Lease”) is
entered into as of the 2nd day of November, 2004, between 353
ASSOCIATES, a Pennsylvania limited partnership
(“Landlord”), and GMH CAPITAL PARTNERS COMMERCIAL
REALTY SERVICES, LP, a Delaware limited partnership, GMH CAPITAL
PARTNERS ASSET SERVICES, LP, a Delaware limited partnership, GMH
PHILADELPHIA BARRAGE, LLC, a Delaware limited liability company,
GMH CONSTRUCTION COMPANY, INC., a Florida corporation, and GMH
ASSOCIATES, INC., a Pennsylvania corporation (collectively referred
to herein as “Tenant”).
WITNESSETH
In consideration of the mutual
covenants herein set forth, and intending to be legally bound, the
parties hereto covenant and agree as follows:
1.
SUMMARY OF DEFINED TERMS .
The following defined terms, as used
in this Lease, shall have the meanings and shall be construed as
set forth below:
(a)
“ Building ”: The Building located at 10
Campus Boulevard, Newtown Square, Pennsylvania.
(b)
“ Project ”: The Building, the land and
all other improvements located at 10 Campus Boulevard, Newtown
Square, Pennsylvania.
(c)
“ Premises ”: A portion of the Building
which the parties stipulate and agree is a 9,697 rentable square
foot portion of the first floor of the Building.
(d)
“ Term ”: From the Commencement Date for a
period of 60 months, ending on the last calendar day of the
month.
(e)
“ Fixed Rent ”:
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LEASE YEAR
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PER R.S.F.
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MONTHLY
INSTALLMENTS
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ANNUAL FIXED
RENT
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Months 1-60
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$25.00
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$20,202.08
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$242,425.00
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(f)
“ Security Deposit ”: $0.
(g)
Intentionally Omitted.
(h)
“ Rentable Area ”: Premises
9,697 sq. ft.
(i)
“ Permitted Uses ”: Tenant’s
use of the Premises shall be limited to general office use and
storage incidental thereto. Tenant’s rights to use the
Premises shall be subject to all applicable laws and governmental
rules and regulations and to all reasonable requirements of the
insurers of the Building.
(j)
“ Tenant’s Broker ”: None
(k)
“ Notice Address/Contact ”
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Tenant:
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GMH CAPITAL PARTNERS COMMERCIAL REALTY SERVICES,
LP
GMH CAPITAL PARTNERS ASSET SERVICES, LP
GMH PHILADELPHIA BARRAGE, LLC
GMH CONSTRUCTION COMPANY, INC.
GMH ASSOCIATES, INC.
10 Campus Boulevard
Newtown Square, PA 19073
Attn: Joseph M. Macchione
Fax No.: 610-355-8480
E-Mail: jmacchione@gmh-inc.com
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Landlord:
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353 ASSOCIATES
c/o GMH Communities, LP
10 Campus Boulevard
Newtown Square, PA 19073
Attn: Joseph M. Macchione
Fax No.: 610-355-8480
E-Mail: jmacchione@gmh-inc.com
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with a copy to:
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Morgan Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103
Attn: Richard J. Sabat
Fax No.: 877-432-9652
E-Mail: rsabat@morganlewis.com
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(l)
“ Tenant’s North American Industry
Classification Number ”: 531210
(m)
“ Additional Rent ”: All sums of money or
charges required to be paid by Tenant under this Lease other than
Fixed Rent, whether or not such sums or charges are designated as
“Additional Rent”.
(n)
“ Rent ”: All Annual Fixed Rent, monthly
installments of Annual Fixed Rent, Fixed Rent and Additional Rent
payable by Tenant to Landlord under this Lease.
2.
PREMISES .
Landlord does hereby lease, demise and let unto Tenant and Tenant
does hereby hire and lease from Landlord the Premises for the Term,
upon the provisions, conditions and limitations set forth
herein.
3.
TERM .
The Term of this Lease shall commence (the “Commencement
Date”) on November 2, 2004. The Term shall expire on
November 1, 2009.
4.
CONSTRUCTION BY LANDLORD . Landlord shall
not perform any work to the Premises. Tenant shall accept the
Premises in as-is condition.
5.
FIXED RENT; SECURITY DEPOSIT .
(a) Tenant shall pay to
Landlord without notice or demand, and without set-off, the annual
Fixed Rent payable in the monthly installments of Fixed Rent as set
forth in Article 1(e) , in advance on the first day of each
calendar month during the Term by check sent to Landlord at the
address provided for in Section 1(k) of this Lease.
Notwithstanding the immediately preceding sentence, the first full
month’s installment and the Security Deposit shall
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be paid upon the execution of this Lease by
Tenant by two separate checks.
(b) In the event any
Fixed Rent or Additional Rent, charge, fee or other amount due from
Tenant under the terms of this Lease are not paid to Landlord when
due, Tenant shall also pay as Additional Rent a service and
handling charge equal to ten (10%) percent of the total payment
then due. The aforesaid late fee shall begin to accrue on the
initial date of a payment due date, irrespective of any grace
period granted hereunder. This provision shall not prevent
Landlord from exercising any other remedy herein provided or
otherwise available at law or in equity in the event of any default
by Tenant.
(c) Tenant shall be
required to pay a Security Deposit of $0 under this
Lease.
6.
INTENTIONALLY OMITTED .
7.
ELECTRICITY, TELEPHONE AND INTERNET CHARGES .
Charges for normal electricity usage, phone, internet and cable
services for the Premises is included in the Fixed Rent.
Landlord shall not be liable for any interruption or delay in
electric or any other utility service for any reason unless caused
by the gross negligence or willful misconduct of Landlord or its
agents. Landlord shall have the right to change the electric and
other utility providers to the Project or Building at any
time. In the event Tenant uses more electricity than the
average office tenant occupying similar space, as determined in
Landlord’s sole, reasonable judgment, Landlord shall have the
right to bill Tenant for such additional costs as Additional Rent
as Landlord may determine in Landlord’s sole and reasonable
judgment.
8.
SIGNS;
USE OF PREMISES AND COMMON AREAS
.
(a) Landlord shall
provide Tenant with standard identification signage on all Building
directories. No other signs shall be placed, erected or
maintained by Tenant at any place upon the Premises, Building or
Project.
(b) Tenant may use and
occupy the Premises only for the express and limited purposes
stated in Article 1(i) above; and the Premises shall not be
used or occupied, in whole or in part, for any other purpose
without the prior written consent of Landlord; provided that
Tenant’s right to so use and occupy the Premises shall remain
expressly subject to the provisions of “Governmental
Regulations”, Article 28 herein. No machinery or
equipment shall be permitted that shall cause vibration, noise or
disturbance beyond the Premises. Tenant, without Landlord’s
consent or direction, shall not “vacate” the Premises
at any time during the Term, nor permit the Premises to remain
unoccupied. “Vacate” shall be defined as
Tenant’s ceasing to use the Premises for its Permitted Use or
the removal of substantially all of its furniture and equipment and
personal property from the Premises.
(c) Tenant shall not
overload any floor or part thereof in the Premises or the Building,
including any public corridors or elevators therein, bringing in,
placing, storing, installing or removing any large or heavy
articles, and Landlord may prohibit, or may direct and control the
location and size of, safes and all other heavy articles, and
may require, at Tenant’s sole cost and expense, supplementary
supports of such material and dimensions as Landlord may deem
necessary to properly distribute the weight.
(d) Tenant shall not
install in or for the Premises, without Landlord’s prior
written approval, any equipment which requires more electric
current than Landlord is required to provide under this Lease, and
Tenant shall ascertain from Landlord the maximum amount of load or
demand for or use of electrical current which can safely be
permitted in and for the Premises, taking into account the capacity
of electric wiring in the Building and the Premises and the needs
of Building common areas (interior and exterior) and the
requirements of other tenants of the Building, Tenant and shall not
in any event connect a greater load than such safe
capacity.
(e) Tenant shall not
commit or suffer any waste upon the Premises, Building or Project
or any nuisance, or do any other act or thing which may disturb the
quiet enjoyment of any other tenant in the Building or
Project.
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(f) Tenant shall
have the right, non-exclusive and in common with others, to use the
exterior paved driveways and walkways of the Building for vehicular
and pedestrian access to the Building. Tenant shall also have
the right, in common with other tenants of the Building and
Landlord, to use the designated parking areas of the Project for
the parking of automobiles of Tenant and its employees and business
visitors, incident to Tenant’s permitted use of the Premises;
provided that Landlord shall have the right to restrict or limit
Tenant’s utilization of the parking areas in the event the
same become overburdened and in such case to equitably allocate on
proportionate basis or assign parking spaces among Tenant and the
other tenants of the Building.
9.
ENVIRONMENTAL MATTERS .
(a) Hazardous
Substances .
(i)
Tenant shall not, except as provided in subparagraph (ii) below,
bring or otherwise cause to be brought or permit any of its agents,
employees, contractors or invitees to bring in, on or about any
part of the Premises, Building or Project, any hazardous substance
or hazardous waste in violation of law, as such terms are or may be
defined in (x) the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. 9601 et seq
., as the same may from time to time be amended, and the
regulations promulgated pursuant thereto (“CERCLA”);
the United States Department of Transportation Hazardous Materials
Table (49 CFR 172.102); by the Environmental Protection Agency as
hazardous substances (40 CFR Part 302); the Clean Air Act; and the
Clean Water Act, and all amendments, modifications or supplements
thereto; and/or (y) any other rule, regulation, ordinance, statute
or requirements of any governmental or administrative agency
regarding the environment (collectively, (x) and (y) shall be
referred to as an “Applicable Environmental
Law”).
(ii)
Tenant may bring to and use at the Premises hazardous substances
incidental to its normal business operations under the NAI Code
referenced in article 1(m) above in the quantities reasonably
required for Tenant’s normal business consistent with its
occupancy pursuant to the Prior Leases and in accordance with
Applicable Environmental Laws. Tenant shall store and handle
such substances in strict accordance with Applicable Environmental
Laws. From time to time promptly following a request to
Landlord, Tenant shall provide Landlord with documents identifying
the hazardous substances stored or used by Tenant on the Premises
and describing the chemical properties of such substances and such
other information reasonably requested by Landlord or Tenant.
Prior to the expiration or sooner termination of this Lease, Tenant
shall remove all hazardous substances from the Premises and shall
provide Landlord with an inspection report from an independent
environmental engineer certifying that the Premises and the land
surrounding the Premises are free of contamination from hazardous
substances and hazardous wastes. The provisions of this
paragraph shall be personal to Tenant and, in the event Tenant
ceases to occupy the Premises, Landlord’s approval to store
and use hazardous substances shall automatically
terminate.
(iii)
Tenant shall defend, indemnify and hold harmless Landlord and their
respective affiliates, employees and agents from and against any
and all third-party claims, actions, damages, liability and expense
(including all attorney’s, consultant’s and
expert’s fees, expenses and liabilities incurred in defense
of any such claim or any action or proceeding brought thereon)
arising from Tenant’s storage and use of hazardous substances
on the Premises including, without limitation, any and all costs
incurred by Landlord because of any investigation of the Project or
any cleanup, removal or restoration of the Project to remove or
remediate hazardous or hazardous wastes deposited by
Tenant. Without limitation of the foregoing, if Tenant, its
officers, employees, agents, contractors, licensees or invitees
cause contamination of the Premises by any hazardous substances,
Tenant shall promptly at its sole expense, take any and all
necessary actions to return the Premises to the condition existing
prior to such contamination, or in the alternative take such other
remedial steps as may be required by law or recommended by
Landlord’s environmental consultant.
(b) NAI Numbers
.
(i)
Tenant represents and warrants that Tenant’s NAI number as
designated in the North American Industry Classification System
Manual prepared by the Office of Management and Budget, and
as
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set forth in Article 1(l) hereof, is
correct. Tenant represents that the specific activities
intended to be carried on in the Premises are in accordance with
Article 1(i).
(ii)
Except as provided in Article 9(a)(ii), Tenant shall not engage in
operations at the Premises which involve the generation,
manufacture, refining, transportation, treatment, storage, handling
or disposal of “hazardous substances” or
“hazardous waste” as such terms are defined under any
Applicable Environmental Law. Tenant further covenants that
it will not cause or permit to exist any “ release
” or “discharge” (as such term is defined under
Applicable Environmental Laws) on or about the Premises.
(iii)
Tenant shall, at its expense, comply with all requirements of
Applicable Environmental Laws pertaining thereto.
(iv)
In addition, upon written notice of Landlord, Tenant shall
cooperate with Landlord in obtaining Applicable Environmental Laws
approval of any transfer of the Buildings. Specifically in
that regard, Tenant agrees that it shall (1) execute and deliver
all affidavits, reports, responses to questions, applications or
other filings required by Landlord and related to Tenant’s
activities at the Premises, (2) allow inspections and testing of
the Premises during normal business hours, and (3) as respects the
Premises, perform any requirement reasonably required by Landlord
necessary for the receipt of approvals under Applicable
Environmental Laws, provided the foregoing shall be at no
out-of-pocket cost or expense to Tenant except for clean-up and
remediation costs arising from Tenant’s violation of this
Article 9.
(c) Additional
Terms .
(i)
In the event of Tenant’s failure to comply in full with this
Article, Landlord may, after written notice to Tenant and
Tenant’s failure to cure within thirty (30) days of its
receipt of such notice, at Landlord’s option, perform any and
all of Tenant’s obligations as aforesaid and all costs and
expenses incurred by Landlord in the exercise of this right all be
deemed to be Additional Rent payable on demand and with interest at
the Default Rate.
(ii)
The parties acknowledge and agree that Tenant shall not be held
responsible for any environmental issue at the Premises unless such
issue was caused by an action or omission of Tenant or its agents,
employees, consultants or invitees.
(d) Survival .
This Article 9 shall survive
the expiration or sooner termination of this Lease.
10.
TENANT’S ALTERATIONS .
Tenant will not cut or drill into or secure any fixture, apparatus
or equipment or make alterations, improvements or physical
additions (collectively, “Alterations”) of any kind to
any part of the Premises without first obtaining the written
consent of Landlord, such consent not to be unreasonably
withheld. Alterations shall, at Landlord’s option, be
done by Landlord at Tenant’s sole cost and expense.
Landlord’s consent shall not be required for (i) the
installation of any office equipment including internal partitions
which do not require disturbance of any structural elements or
systems within the Building or (ii) minor work, including
decorations, which does not require disturbance of any structural
elements or systems within the Building and which costs in the
aggregate less than $5,000. If no approval is required or if
Landlord approves Tenant’s Alterations and agrees to permit
Tenant’s contractors to do the work, Tenant, prior to the
commencement of labor or supply of any materials, must furnish to
Landlord (i) a duplicate or original policy or certificates of
insurance evidencing (a) general public liability insurance for
personal injury and property damage in the minimum amount of
$3,000,000.00 combined single limit, (b) statutory workman’s
compensation insurance, and (c) employer’s liability
insurance from each contractor to be employed (all such policies
shall be non-cancelable without thirty (30) days prior written
notice to Landlord and shall be in amounts and with companies
satisfactory to Landlord); (ii) construction documents prepared and
sealed by a registered Pennsylvania architect if such alteration
causes the aggregate of all Alterations to be in excess of $10,000;
(iii) all applicable building permits required by law; and (iv) an
executed, effective Waiver of Mechanics
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Liens from such contractors and all
sub-contractors in states allowing for such waivers or the cost of
such alteration must be bonded by Tenant. Any approval by
Landlord permitting Tenant to do any or cause any work to be done
in or about the Premises shall be and hereby is conditioned upon
Tenant’s work being performed by workmen and mechanics
working in harmony and not interfering with labor employed by
Landlord, Landlord’s mechanics or their contractors or by any
other tenant or their contractors. If at any time any of the
workmen or mechanics performing any of Tenant’s work shall be
unable to work in harmony or shall interfere with any labor
employed by Landlord, other tenants or their respective mechanics
and contractors, then the permission granted by Landlord to Tenant
permitting Tenant to do or cause any work to be done in or about
the Premises, may be withdrawn by Landlord upon forty-eight (48)
hours written notice to Tenant.
All Alterations (whether temporary
or permanent in character) made in or upon the Premises, either by
Landlord or Tenant, shall be Landlord’s property upon
installation and shall remain on the Premises without compensation
to Tenant unless Landlord provides written notice to Tenant to
remove same at the expiration of the Lease, in which event Tenant
shall promptly remove such Alterations and restore the Premises to
good order and condition. At Lease termination, all furniture,
movable trade fixtures and equipment (including telephone, security
and communication equipment system wiring and cabling) shall, at
Landlord’s option, be removed by Tenant and shall be
accomplished in a good and workmanlike manner so as not to damage
the Premises or Building and in such manner so as not to disturb
other tenants in the Building. All such installations,
removals and restoration shall be accomplished in a good and
workmanlike manner so as not to damage the Premises or Building and
in such manner so as not to disturb other tenants in the
Building. If Tenant fails to remove any items required to be
removed pursuant to this Article, Landlord may do so and the
reasonable costs and expenses thereof shall be deemed Additional
Rent hereunder and shall be reimbursed by Tenant to Landlord within
fifteen (15) business days of Tenant’s receipt of an invoice
therefor from Landlord.
11.
CONSTRUCTION LIENS .
(a) Tenant will not
suffer or permit any contractor’s, subcontractor’s or
supplier’s lien (a “Construction Lien”) to be
filed against the Premises or any part thereof by reason of work,
labor services or materials supplied or claimed to have been
supplied to Tenant; and if any Construction Lien shall at any time
be filed against the Premises or any part thereof, Tenant, within
ten (10) days after notice of the filing thereof, shall cause it to
be discharged of record by payment, deposit, bond, order of a court
of competent jurisdiction or otherwise. If Tenant shall fail to
cause such Construction Lien to be discharged within the period
aforesaid, then in addition to any other right or remedy, Landlord
may, but shall not be obligated to, discharge it either by paying
the amount claimed to be due or by procuring the discharge of such
lien by deposit or by bonding proceedings. Any amount so paid by
Landlord, plus all of Landlord’s costs and expenses
associated therewith (including, without limitation, reasonable
legal fees), shall constitute Additional Rent payable by Tenant
under this Lease and shall be paid by Tenant to Landlord on demand
with interest from the date of advance by Landlord at the Default
Rate.
(b) Nothing in this
Lease, or in any consent to the making of alterations or
improvements shall be deemed or construed in any way as
constituting authorization by Landlord for the making of any
alterations or additions by Tenant within the meaning of 49 P.S.
Sections 1101-1902, as amended, or under the Contractor and
Subcontractor Payment Act or any amendment thereof, or constituting
a request by Landlord, express or implied, to any contractor,
subcontractor or supplier for the performance of any labor or the
furnishing of any materials for the use or benefit of
Landlord.
12.
ASSIGNMENT AND SUBLETTING .
(a)
Subject to the remaining subsections of Article 12 , except
as expressly permitted pursuant to this section, Tenant shall not,
without the prior written consent of Landlord, such consent not to
be unreasonably withheld, assign, transfer or hypothecate this
Lease or any interest herein or sublet the Premises or any part
thereof. Any of the foregoing acts without such consent shall
be void and shall, at the option of Landlord, terminate this
Lease. Subject to subparagraph 12(i) below, this Lease shall
not, nor shall any interest herein, be assignable as to the
interest of Tenant by operation of law or by merger, consolidation
or asset sale, without the written consent of
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Landlord.
(b)
If at any time or from time to time during the term of this Lease
Tenant desires to assign this Lease or sublet all or any part of
the Premises, Tenant shall give notice to Landlord of such desire,
including the name, address and contact party for the proposed
assignee or subtenant, a description of such party’s business
history, the effective date of the proposed assignment or sublease
(including the proposed occupancy date by the proposed assignee or
sublessee), and in the instance of a proposed sublease, the square
footage to be subleased, a floor plan professionally drawn to scale
depicting the proposed sublease area, and a statement of the
duration of the proposed sublease (which shall in any and all
events expire by its terms prior to the scheduled expiration of
this Lease, and immediately upon the sooner termination
hereof). Landlord may, at its option, and in its sole
and absolute discretion, exercisable by notice given to Tenant
within sixty (60) days next following Landlord’s receipt of
Tenant’s notice (which notice from Tenant shall, as a
condition of its effectiveness, include all of the above-enumerated
information), elect to recapture the Premises if Tenant is
proposing to sublet or assign the Premises or such portion as is
proposed by Tenant to be sublet (and in each case, the designated
and non-designated parking spaces included in this demise, or a
pro-rata portion thereof in the instance of the recapture of less
than all of the Premises), and terminate this Lease with respect to
the space being recaptured.
(c)
If Landlord elects to recapture the Premises or a portion thereof
as aforesaid, then from and after the effective date thereof as
approved by Landlord, after Tenant shall have fully performed such
obligations as are enumerated herein to be performed by Tenant in
connection with such recapture, and except as to obligations and
liabilities accrued and unperformed (and any other obligations
expressly stated in this Lease to survive the expiration or sooner
termination of this Lease), Tenant shall be released of and from
all lease obligations thereafter otherwise accruing with respect to
the Premises (or such lesser portion as shall have been recaptured
by Landlord). The Premises, or such portion thereof as
Landlord shall have elected to recapture, shall be delivered by
Tenant to Landlord free and clear of all furniture, furnishings,
personal property and removable fixtures, with Tenant repairing and
restoring any and all damage to the Premises resulting from the
installation, handling or removal thereof, and otherwise in the
same condition as Tenant is, by the terms of this Lease, required
to redeliver the Premises to Landlord upon the expiration or sooner
termination of this Lease. Upon the completion of any
recapture and termination as provided herein, Tenant’s Fixed
Rent and other monetary obligations hereunder shall be adjusted
pro-rated based upon the reduced rentable square footage then
comprising the Premises.
(d)
If Landlord provides written notification to Tenant electing not to
recapture the Premises (or so much thereof as Tenant had proposed
to sublease), then Tenant may proceed to market the designated
space and may complete such transaction and execute an assignment
of this Lease or a sublease agreement (in each case in form
acceptable to Landlord) within a period of five (5) months next
following Landlord’s notice to Tenant that it declines to
recapture such space, provided that Tenant shall have first
obtained in any such case the prior written consent of Landlord to
such transaction, which consent shall not be unreasonably
withheld. If, however, Tenant shall not have assigned this
Lease or sublet the Premises with Landlord’s prior written
consent as aforesaid within five (5) months next following
Landlord’s notice to Tenant that Landlord declines to
recapture the Premises (or such portion thereof as Tenant initially
sought to sublease), then in such event, Tenant shall again be
required to request Landlord’s consent to the proposed
transaction, whereupon Landlord’s right to recapture the
Premises (or such portion as Tenant shall desire to sublease) shall
be renewed upon the same terms and as otherwise provided in
subsection (b) above.
For purposes of this Section 12(d),
and without limiting the basis upon which Landlord may withhold its
consent to any proposed assignment or sublease, the parties agree
that it shall not be unreasonable for Landlord to withhold its
consent to such assignment or sublease if: (i) the proposed
assignee or sublessee shall have a net worth which is not
acceptable to Landlord in Landlord’s reasonable discretion;
(ii) the proposed assignee or sublessee shall have no reliable
credit history or an unfavorable credit history, or other
reasonable evidence exists that the proposed assignee or sublessee
will experience difficulty in satisfying its financial or
other obligations under this Lease; (iii) the proposed
assignee of sublessee, in Landlord’s reasonable opinion, is
not reputable and of good character; (iv) the portion of the
Premises requested to be subleased renders the balance of the
Premises unleasable as a separate area; (v) Tenant is proposing a
sublease at a rental or subrental rate which is less than the then
fair
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market rental rate for the portion of the
Premises being subleased or assigned, or Tenant is proposing to
assign or sublease to an existing tenant of the Building or another
property owned by Landlord or by its partners, or to another
prospect with whom Landlord or its partners, or their affiliates
are then negotiating; (vi) the proposed assignee or sublessee will
cause Landlord’s existing parking facilities to be reasonably
inadequate, or in violation of code requirements, or require
Landlord to increase the parking area or the number of parking
spaces to meet code requirements, or the nature of such
party’s business shall reasonably require more than four (4)
parking spaces per 1,000 rentable square feet of floor space, or
(vii) the nature of such party’s proposed business operation
would or might reasonably permit or require the use of the Premises
in a manner inconsistent with the “Permitted Use”
specified herein, would or might reasonably otherwise be in
conflict with express provisions of this Lease, would or
might reasonably violate the terms of any other lease for the
Building, or would, in Landlord’s reasonable judgement,
otherwise be incompatible with other tenancies in the
Building.
(e)
Any sums or other economic consideration received by Tenant as a
result of any subletting, assignment or license (except rental or
other payments received which are attributable to the amortization
of the cost of leasehold improvements made to the sublet or
assigned portion of the premises by Tenant for subtenant or
assignee, and other reasonable expenses incident to the subletting
or assignment, including standard leasing commissions) whether
denominated rentals under the sublease or otherwise, which exceed,
in the aggregate, the total sums which Tenant is obligated to pay
Landlord under this Lease (prorated to reflect obligations
allocable to that portion of the premises subject to such sublease
or assignment) shall be divided evenly between Landlord and Tenant,
with Landlord’s portion being payable to Landlord as
Additional Rental under this Lease without affecting or reducing
any other obligation of Tenant hereunder.
(f)
Regardless of Landlord’s consent, no subletting or assignment
shall release Tenant of Tenant’s obligation or alter the
primary liability of Tenant to pay the Rent and to perform all
other obligations to be performed by Tenant hereunder. The
acceptance of rental by Landlord from any other person shall not be
deemed to be a waiver by Landlord of any provision hereof.
Consent to one assignment or subletting shall not be deemed consent
to any subsequent assignment or subletting. In the event of
default by any assignee of Tenant or any successor of Tenant in the
performance of any of the terms hereof, Landlord may proceed
directly against Tenant without the necessity of exhausting
remedies against such assignee or successor.
(g)
In the event that (i) the Premises or any part thereof are sublet
and Tenant is in default under this Lease, or (ii) this Lease is
assigned by Tenant, then, Landlord may collect Rent from the
assignee or subtenant and apply the net amount collected to the
rent herein reserved; but no such collection shall be deemed a
waiver of the provisions of this Article 12 with respect to
assignment and subletting, or the acceptance of such assignee or
subtenant as Tenant hereunder, or a release of Tenant from further
performance of the covenants herein contained.
(h)
In connection with each proposed assignment or subletting of the
Premises by Tenant, Tenant shall pay to Landlord (i) an
administrative fee of $250 per request (including requests for
non-disturbance agreements and Landlord’s or its
lender’s waivers) in order to defer Landlord’s
administrative expenses arising from such request, plus (ii)
Landlord’s reasonable attorneys’ fees.
(i)
Tenant may, after notice to, but without the consent of Landlord,
assign this Lease to an affiliate (i.e., a corporation 50% or more
of whose capital stock is owned by the same stockholders owning 50%
or more of Tenant’s capital stock), parent or subsidiary
corporation of Tenant or to a corporation to which it sells or
assigns all of substantially all of its assets or stock or with
which it may be consolidated or merged (“Affiliate”),
provided such purchasing, consolidated, merged, affiliated or
subsidiary corporation shall, in writing, assume and agree to
perform all of the obligations of Tenant under this Lease, shall
have a net worth at least equal to $10,000,000, and it shall
deliver such assumption with a copy of such assignment to Landlord
within ten (10) days thereafter, and provided further that Tenant
shall not be released or discharged from any liability under this
Lease by reason of such assignment.
(j)
Anything in this Article 12 to the contrary notwithstanding,
no assignment or sublease
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shall be permitted under this Lease if Tenant is
in default at the time of such assignment or has previously
defaulted (irrespective of the fact that Tenant cured such default)
more than twice in connection with any of its monetary obligations
under this Lease and such monetary defaults aggregate in excess of
$20,000.
13.
LANDLORD’S RIGHT OF ENTRY .
Landlord and persons authorized by Landlord may enter the Premises
at all reasonable times upon reasonable advance notice (except in
the case of an emergency in which case no prior notice is
necessary) for the purpose of inspections, repairs, alterations to
adjoining space, appraisals, or other reasonable purposes;
including enforcement of Landlord’s rights under this
Lease. Landlord shall not be liable for inconvenience to or
disturbance of Tenant by reason of any such entry; provided,
however, that in the case of repairs or work, such shall be done,
so far as practicable, so as to not unreasonably interfere with
Tenant’s use of the Premises. Provided, however, that
such efforts shall not require Landlord to use overtime labor
unless Tenant shall pay for the increased costs to be incurred by
Landlord for such overtime labor. Landlord also shall have
the right to enter the Premises at all reasonable times after
giving prior oral notice to Tenant, to exhibit the Premises to any
prospective purchaser and/or mortgagee. Landlord also
shall have the right to enter the Premises at all reasonable times
after giving prior oral notice to Tenant, to exhibit the Premises
to any prospective tenants.
14.
REPAIRS AND MAINTENANCE .
(a)
Except as specifically otherwise provided in subparagraphs (b) and
(c) of this Article, Tenant, at its sole cost and expense and
throughout the Term of this Lease, shall keep and maintain the
Premises in good order and condition (reasonable wear and tear
excepted), free of accumulation of dirt and rubbish. Landlord
shall, upon written notice from Tenant, promptly make all repairs
to the Premises (except for any Alterations made by Tenant to the
Base Building Specifications) necessary to keep and maintain such
good order and condition and shall charge Tenant by invoice for the
cost of such repairs at Landlord’s standard rates (such rate
to be competitive with the market rate for such services).
Such charges shall be considered Additional Rent and shall be
payable by Tenant within thirty (30) days of delivery of an
invoice. When used in this Article 14 , the term
“repairs” shall include replacements and renewals when
necessary.
(b)
Landlord, throughout the Term of this Lease and at Landlord’s
sole cost and expenses, shall make all necessary repairs to the
footings and foundations and the structural steel columns and
girders forming a part of the Premises.
(c)
Landlord shall maintain all HVAC systems, plumbing and electric
systems serving the Building and the Premises.
(d)
Landlord, throughout the Term of this Lease, shall make all
necessary repairs to the Building outside of the Premises and the
common areas, including the roof, walls, exterior portions of the
Premises and the Building, utility lines, equipment and other
utility facilities in the Building, which serve more than one
tenant of the Building, and to any driveways, sidewalks, curbs,
loading, parking and landscaped areas, and other exterior
improvements for the Building; provided, however, that Landlord
shall have no responsibility to make any repairs unless and until
Landlord receives written notice of the need for such repair or
Landlord has actual knowledge of the need to make such
repair.
(e)
Landlord shall keep and maintain all common areas appurtenant to
the Building and any sidewalks, parking areas, curbs and access
ways adjoining the Property in a clean and orderly condition, free
of accumulation of dirt, rubbish, snow and ice, and shall keep and
maintain all landscaped areas in a neat and orderly
condition.
(f)
Notwithstanding anything herein to the contrary, repairs to the
Premises, Building or Project and its appurtenant common areas made
necessary by a negligent or willful act or omission of Tenant or
any employee, agent, contractor, or invitee of Tenant shall be made
at the sole cost and expense of Tenant, except to the
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extent of insurance proceeds received by
Landlord.
(g)
Landlord shall provide Tenant with janitorial services for the
Premises Monday through Friday of each week in accordance with
guidelines as may be set forth by Landlord from time to
time.
15.
INSURANCE; SUBROGATION RIGHTS .
(a)
Tenant shall obtain and keep in force at all times during the term
hereof, at its own expense, commercial general liability insurance
including contractual liability and personal injury liability and
all similar coverage, with combined single limits of $1,000,000.00
on account of bodily injury to or death of one or more persons as
the result of any one accident or disaster and on account of damage
to property, or in such other amounts as Landlord may from time to
time require. Tenant shall also require its movers to procure
and deliver to Landlord a certificate of insurance naming Landlord
as an additional insured.
(b)
All liability insurance required hereunder shall not be
subject to cancellation without at least thirty (30) days prior
notice to all insureds, and shall name Landlord and Tenant as
insureds, as their interests may appear, and, if requested by
Landlord, shall also name as an additional insured any mortgagee or
holder of any mortgage which may be or become a lien upon any part
of the Premises. Prior to the commencement of the Term,
Tenant shall provide Landlord with certificates which evidence that
the coverages required have been obtained for the policy
periods. Tenant shall also furnish to Landlord throughout the
term hereof replacement certificates at least thirty (30) days
prior to the expiration dates of the then current policy or
policies. All the insurance required under this Lease shall
be issued by insurance companies authorized to do business in the
Commonwealth of Pennsylvania with a financial rating of at least an
A-X as rated in the most recent edition of Best’s Insurance
Reports and in business for the past five years. The limit of
any such insurance shall not limit the liability of Tenant
hereunder. If Tenant fails to procure and maintain such
insurance, Landlord may, but shall not be required to, procure and
maintain the same, at Tenant’s expense to be reimbursed by
Tenant as Additional Rent within ten (10) days of written
demand. Any deductible under such insurance policy or
self-insured retention under such insurance policy in excess of
Twenty Five Thousand ($25,000) must be approved by Landlord in
writing prior to issuance of such policy. Tenant shall not
self-insure without Landlord’s prior written
consent. The policy limits set forth herein shall be
subject
