**Exhibit 10.3**

 

 

 

 

 

 

 

 

 

 

**PENNSYLVANIA**

**FULL SERVICE LEASE**

 

 

**353ASSOCIATES**

 

**Landlord**

 

**and**

 

**GMH CAPITAL PARTNERS COMMERCIALREALTY 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**

 

 

 

 

 

 

 

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**TABLE OF CONTENTS**

 

 
| **1.**  | **SUMMARY OF DEFINED TERMS**                                          | ** ** |
|---------|-----------------------------------------------------------------------|------------|
| **2.**  | **PREMISES**                                                          | ** ** |
| **3.**  | **TERM**                                                              | ** ** |
| **4.**  | **CONSTRUCTION BY LANDLORD**                                | ** ** |
| **5.**  | **FIXED RENT; SECURITY  DEPOSIT**                                     | ** ** |
| **6.**  | **INTENTIONALLY OMITTED**                                             | ** ** |
| **7.**  | **ELECTRICITY,  TELEPHONE & INTERNET CHARGES**               | ** ** |
| **8.**  | **SIGNS;  USE OF PREMISES AND COMMON AREAS** | ** ** |
| **9.**  | **ENVIRONMENTAL MATTERS**                                        | ** ** |
| **10.** | **TENANT’S ALTERATIONS**                                    | ** ** |
| **11.** | **CONSTRUCTION LIENS**                                                | ** ** |
| **12.** | **ASSIGNMENT AND SUBLETTING**                               | ** ** |
| **13.** | **LANDLORD’S RIGHT OF ENTRY**                     | ** ** |
| **14.** | **REPAIRS AND MAINTENANCE**                                 | ** ** |
| **15.** | **INSURANCE; SUBROGATION RIGHTS**                           | ** ** |
| **16.** | **INDEMNIFICATION**                                                   | ** ** |
| **17.** | **QUIET ENJOYMENT**                                              | ** ** |
| **18.** | **FIRE DAMAGE**                                                  | ** ** |
| **19.** | **SUBORDINATION; RIGHTS OF MORTGAGEE**                 | ** ** |
| **20.** | **CONDEMNATION**                                                      | ** ** |
| **21.** | **ESTOPPEL CERTIFICATE**                                         | ** ** |
| **22.** | **DEFAULT**                                                           | ** ** |
| **23.** | **LANDLORD’S LIEN**                                         | ** ** |
| **24.** | **LANDLORD’S  REPRESENTATIONS AND WARRANTIES**                   | ** ** |

 

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| **25.** | **SURRENDER**                                      | ** ** |
|---------|----------------------------------------------------|------------|
| **26.** | **RULES AND REGULATIONS**                          | ** ** |
| **27.** | **GOVERNMENTAL REGULATIONS**                  | ** ** |
| **28.** | **NOTICES**                                        | ** ** |
| **29.** | **BROKERS**                                        | ** ** |
| **30.** | **CHANGE OF BUILDING/PROJECT NAME** | ** ** |
| **31.** | **LANDLORD’S LIABILITY**                 | ** ** |
| **32.** | **AUTHORITY**                                      | ** ** |
| **33.** | **NO OFFER**                                       | ** ** |
| **34.** | **RENEWAL**                                        | ** ** |
| **35.** | **INTENTIONALLY OMITTED**                          | ** ** |
| **36.** | **TENANT FINANCIAL  INFORMATION**                  | ** ** |
| **37.** | **MISCELLANEOUS PROVISIONS**                       | ** ** |
| **38.** | **WAIVER OF TRIAL BY JURY**                        | ** ** |
| **39.** | **CONSENT TO JURISDICTION**                        | ** ** |

 

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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 limitedpartnership, GMH CAPITAL PARTNERS ASSET SERVICES, LP, a Delaware limitedpartnership, GMH PHILADELPHIA BARRAGE, LLC, a Delaware limited liabilitycompany, GMH CONSTRUCTION COMPANY, INC., a Florida corporation, and GMHASSOCIATES, INC., a Pennsylvania corporation (collectively referred to hereinas “Tenant”).

 

WITNESSETH

 

In considerationof the mutual covenants herein set forth, and intending to be legally bound,the parties hereto covenant and agree as follows:

 

1.             SUMMARY OFDEFINED 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 otherimprovements located at 10 Campus Boulevard, Newtown Square, Pennsylvania.

(c)           “Premises”:  A portion of the Building which the partiesstipulate and agree is a 9,697 rentable square foot portion of the first floorof the Building.

(d)           “Term”:  From the Commencement Date for a period of 60months, ending on the last calendar day of the month.

(e)           “Fixed Rent”:
| **LEASE YEAR** | **PER  R.S.F.** | **MONTHLY INSTALLMENTS** | **ANNUAL  FIXED RENT** |
|----------------|-----------------|--------------------------|------------------------|
| Months 1-60    | $25.00          | $20,202.08               | $242,425.00            |

** **

(f)            “Security Deposit”:  $0.

(g)           IntentionallyOmitted.

(h)           “Rentable Area”:Premises   9,697 sq. ft.

 

(i)            “Permitted Uses”:  Tenant’s use of the Premises shall be limitedto general office use and storage incidental thereto.  Tenant’s rights to use the Premises shall besubject to all applicable laws and governmental rules and regulations and toall reasonable requirements of the insurers of the Building.

 

(j)            “Tenant’s Broker”:  None

 

(k)           “Notice Address/Contact”

 

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|   | Tenant:         | 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 19073Attn: Joseph M. Macchione  Fax No.: 610-355-8480  E-Mail: jmacchione@gmh-inc.com |
|--------|-----------------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |            |                                                                                                                                                                                                                                                                                                            |
|   | Landlord:       | 353 ASSOCIATESc/o GMH Communities, LP  10 Campus Boulevard  Newtown Square, PA 19073Attn: Joseph M. Macchione  Fax No.: 610-355-8480  E-Mail: jmacchione@gmh-inc.com                                                                                                                                            |
|   |            |                                                                                                                                                                                                                                                                                                            |
|   | with a copy to: | Morgan Lewis  & Bockius LLP  1701 Market Street  Philadelphia, PA 19103  Attn:  Richard J. Sabat  Fax No.: 877-432-9652  E-Mail: rsabat@morganlewis.com                                                                                                                                                |

 

(l)            “Tenant’s North AmericanIndustry Classification Number”: 531210

(m)          “Additional Rent”: All sums ofmoney or charges required to be paid by Tenant under this Lease other thanFixed Rent, whether or not such sums or charges are designated as “AdditionalRent”.

(n)           “Rent”: All Annual Fixed Rent,monthly installments of Annual Fixed Rent, Fixed Rent and Additional Rentpayable by Tenant to Landlord under this Lease.

2.             PREMISES.

 

                Landlord doeshereby lease, demise and let unto Tenant and Tenant does hereby hire and leasefrom Landlord the Premises for the Term, upon the provisions, conditions andlimitations set forth herein.

 

3.             TERM.

 

                The Term of this Lease shall commence (the “CommencementDate”) on November 2, 2004.  The Termshall expire on November 1, 2009.

 

4.             CONSTRUCTION BY LANDLORD.  Landlord shall not perform any work to thePremises.  Tenant shall accept thePremises in as-is condition.

 

5.             FIXED RENT; SECURITY DEPOSIT.

 

(a)   Tenant shall pay to Landlord without noticeor demand, and without set-off, the annual Fixed Rent payable in the monthlyinstallments of Fixed Rent as set forth in Article 1(e), in advance onthe first day of each calendar month during the Term by check sent to Landlordat the address provided for in Section 1(k) of this Lease.  Notwithstanding the immediately precedingsentence, 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 AdditionalRent, charge, fee or other amount due from Tenant under the terms of this Leaseare not paid to Landlord when due, Tenant shall also pay as Additional Rent aservice and handling charge equal to ten (10%) percent of the total paymentthen due.  The aforesaid late fee shallbegin to accrue on the initial date of a payment due date, irrespective of anygrace period granted hereunder.  Thisprovision shall not prevent Landlord from exercising any other remedy hereinprovided or otherwise available at law or in equity in the event of any defaultby Tenant.

 

(c)    Tenant shall be required topay 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 FixedRent.  Landlord shall not be liable forany interruption or delay in electric or any other utility service for anyreason unless caused by the gross negligence or willful misconduct of Landlordor its agents. Landlord shall have the right to change the electric and otherutility providers to the Project or Building at any time.  In the event Tenant uses more electricitythan the average office tenant occupying similar space, as determined inLandlord’s sole, reasonable judgment, Landlord shall have the right to billTenant for such additional costs as Additional Rent as Landlord may determinein Landlord’s sole and reasonable judgment.

 

8.             SIGNS;USE OF PREMISES AND COMMON AREAS.

 

(a)   Landlord shall provideTenant with standard identification signage on all Building directories.  No other signs shall be placed, erected ormaintained by Tenant at any place upon the Premises, Building or Project.

 

(b)   Tenant may use and occupy the Premises onlyfor the express and limited purposes stated in Article 1(i) above; andthe Premises shall not be used or occupied, in whole or in part, for any otherpurpose without the prior written consent of Landlord; provided that Tenant’sright to so use and occupy the Premises shall remain expressly subject to theprovisions of “Governmental Regulations”, Article 28 herein.  No machinery or equipment shall be permittedthat shall cause vibration, noise or disturbance beyond the Premises. Tenant,without Landlord’s consent or direction, shall not “vacate” the Premises at anytime during the Term, nor permit the Premises to remain unoccupied.  “Vacate” shall be defined as Tenant’s ceasingto use the Premises for its Permitted Use or the removal of substantially allof its furniture and equipment and personal property from the Premises.

 

(c)   Tenant shall not overloadany floor or part thereof in the Premises or the Building, including any publiccorridors or elevators therein, bringing in, placing, storing, installing orremoving any large or heavy articles, and Landlord may prohibit, or may directand control the location and size of, safes and all other heavy articles,  and may require, at Tenant’s sole cost andexpense, supplementary supports of such material and dimensions as Landlord maydeem necessary to properly distribute the weight.

 

(d)   Tenant shall not install in or for thePremises, without Landlord’s prior written approval, any equipment whichrequires more electric current than Landlord is required to provide under thisLease, and Tenant shall ascertain from Landlord the maximum amount of load ordemand for or use of electrical current which can safely be permitted in andfor the Premises, taking into account the capacity of electric wiring in theBuilding and the Premises and the needs of Building common areas (interior andexterior) and the requirements of other tenants of the Building, Tenant andshall not in any event connect a greater load than such safe capacity.

 

(e)   Tenant shall not commit orsuffer any waste upon the Premises, Building or Project or any nuisance, or doany other act or thing which may disturb the quiet enjoyment of any othertenant in the Building or Project.

 

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(f)    Tenant shall have theright, non-exclusive and in common with others, to use the exterior paveddriveways and walkways of the Building for vehicular and pedestrian access tothe Building.  Tenant shall also have theright, in common with other tenants of the Building and Landlord, to use thedesignated parking areas of the Project for the parking of automobiles ofTenant and its employees and business visitors, incident to Tenant’s permitteduse of the Premises; provided that Landlord shall have the right to restrict orlimit Tenant’s utilization of the parking areas in the event the same becomeoverburdened and in such case to equitably allocate on proportionate basis orassign parking spaces among Tenant and the other tenants of the Building.

 

9.             ENVIRONMENTAL MATTERS.

 

(a)   Hazardous Substances.

 

(i)            Tenant shall not, except as providedin subparagraph (ii) below, bring or otherwise cause to be brought or permitany of its agents, employees, contractors or invitees to bring in, on or aboutany part of the Premises, Building or Project, any hazardous substance orhazardous waste in violation of law, as such terms are or may be defined in (x)the Comprehensive Environmental Response, Compensation and Liability Act, 42U.S.C. 9601 etseq., as the same may from time to time be amended,and the regulations promulgated pursuant thereto (“CERCLA”); the United StatesDepartment of Transportation Hazardous Materials Table (49 CFR 172.102); by theEnvironmental Protection Agency as hazardous substances (40 CFR Part 302); theClean Air Act; and the Clean Water Act, and all amendments, modifications orsupplements thereto; and/or (y) any other rule, regulation, ordinance, statuteor requirements of any governmental or administrative agency regarding theenvironment (collectively, (x) and (y) shall be referred to as an  “Applicable Environmental Law”).

 

(ii)           Tenant may bring to and use at thePremises hazardous substances incidental to its normal business operationsunder the NAI Code referenced in article 1(m) above in the quantities reasonablyrequired for Tenant’s normal business consistent with its occupancy pursuant tothe Prior Leases and in accordance with Applicable Environmental Laws.  Tenant shall store and handle such substancesin strict accordance with Applicable Environmental Laws.  From time to time promptly following arequest to Landlord, Tenant shall provide Landlord with documents identifyingthe hazardous substances stored or used by Tenant on the Premises anddescribing the chemical properties of such substances and such otherinformation reasonably requested by Landlord or Tenant.  Prior to the expiration or sooner terminationof this Lease, Tenant shall remove all hazardous substances from the Premisesand shall provide Landlord with an inspection report from an independentenvironmental engineer certifying that the Premises and the land surroundingthe Premises are free of contamination from hazardous substances and hazardouswastes.  The provisions of this paragraphshall be personal to Tenant and, in the event Tenant ceases to occupy thePremises, Landlord’s approval to store and use hazardous substances shallautomatically terminate.

 

(iii)          Tenant shall defend, indemnify andhold harmless Landlord and their respective affiliates, employees and agentsfrom and against any and all third-party claims, actions, damages, liabilityand expense (including all attorney’s, consultant’s and expert’s fees, expensesand liabilities incurred in defense of any such claim or any action orproceeding brought thereon) arising from Tenant’s storage and use of hazardoussubstances on the Premises including, without limitation, any and all costsincurred by Landlord because of any investigation of the Project or anycleanup, removal or restoration of the Project to remove or remediate hazardous  or hazardous wastes deposited by Tenant.  Without limitation of the foregoing, ifTenant, its officers, employees, agents, contractors, licensees or inviteescause contamination of the Premises by any hazardous substances, Tenant shallpromptly at its sole expense, take any and all necessary actions to return thePremises to the condition existing prior to such contamination, or in thealternative take such other remedial steps as may be required by law orrecommended by Landlord’s environmental consultant.

 

(b)   NAI Numbers.

 

(i)            Tenant represents and warrants thatTenant’s NAI number as designated in the North American Industry ClassificationSystem 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 specificactivities intended to be carried on in the Premises are in accordance withArticle 1(i).

 

(ii)           Except as provided in Article9(a)(ii), Tenant shall not engage in operations at the Premises which involvethe generation, manufacture, refining, transportation, treatment, storage,handling or disposal of “hazardous substances” or “hazardous waste” as suchterms are defined under any Applicable Environmental Law.  Tenant further covenants that it will notcause or permit to exist any “release” or “discharge” (as such term isdefined under Applicable Environmental Laws) on or about the Premises.

 

(iii)          Tenant shall, at its expense, complywith all requirements of Applicable Environmental Laws pertaining thereto.

 

(iv)          In addition, upon written notice ofLandlord, Tenant shall cooperate with Landlord in obtaining ApplicableEnvironmental Laws approval of any transfer of the Buildings.  Specifically in that regard, Tenant agreesthat it shall (1) execute and deliver all affidavits, reports, responses toquestions, applications or other filings required by Landlord and related toTenant’s activities at the Premises, (2) allow inspections and testing of thePremises during normal business hours, and (3) as respects the Premises,perform any requirement reasonably required by Landlord necessary for thereceipt of approvals under Applicable Environmental Laws, provided theforegoing shall be at no out-of-pocket cost or expense to Tenant except forclean-up and remediation costs arising from Tenant’s violation of this Article9.

 

(c)   Additional Terms.

 

(i)            In the event of Tenant’s failure tocomply in full with this Article, Landlord may, after written notice to Tenantand Tenant’s failure to cure within thirty (30) days of its receipt of suchnotice, at Landlord’s option, perform any and all of Tenant’s obligations asaforesaid and all costs and expenses incurred by Landlord in the exercise ofthis right all be deemed to be Additional Rent payable on demand and withinterest at the Default Rate.

 

(ii)           The parties acknowledge and agreethat Tenant shall not be held responsible for any environmental issue at thePremises unless such issue was caused by an action or omission of Tenant or itsagents, employees, consultants or invitees.

 

(d)   Survival.        This Article 9 shall survive the expiration or soonertermination of this Lease.

 

10.           TENANT’S ALTERATIONS.

 

                                Tenantwill not cut or drill into or secure any fixture, apparatus or equipment ormake alterations, improvements or physical additions (collectively, “Alterations”)of any kind to any part of the Premises without first obtaining the writtenconsent of Landlord, such consent not to be unreasonably withheld.  Alterations shall, at Landlord’s option, bedone 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 partitionswhich do not require disturbance of any structural elements or systems withinthe Building or (ii) minor work, including decorations, which does not requiredisturbance of any structural elements or systems within the Building and whichcosts in the aggregate less than $5,000. If no approval is required or if Landlord approves Tenant’s Alterationsand agrees to permit Tenant’s contractors to do the work, Tenant, prior to thecommencement 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 inthe minimum amount of $3,000,000.00 combined single limit, (b) statutoryworkman’s compensation insurance, and (c) employer’s liability insurance fromeach contractor to be employed (all such policies shall be non-cancelablewithout thirty (30) days prior written notice to Landlord and shall be inamounts and with companies satisfactory to Landlord); (ii) constructiondocuments prepared and sealed by a registered Pennsylvania architect if suchalteration 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 allowingfor such waivers or the cost of such alteration must be bonded by Tenant.  Any approval by Landlord permitting Tenant todo any or cause any work to be done in or about the Premises shall be andhereby is conditioned upon Tenant’s work being performed by workmen andmechanics working in harmony and not interfering with labor employed byLandlord, Landlord’s mechanics or their contractors or by any other tenant ortheir contractors.  If at any time any ofthe workmen or mechanics performing any of Tenant’s work shall be unable towork in harmony or shall interfere with any labor employed by Landlord, othertenants or their respective mechanics and contractors, then the permission grantedby Landlord to Tenant permitting Tenant to do or cause any work to be done inor about the Premises, may be withdrawn by Landlord upon forty-eight (48) hourswritten notice to Tenant.

 

All Alterations (whether temporary or permanent incharacter) made in or upon the Premises, either by Landlord or Tenant, shall beLandlord’s property upon installation and shall remain on the Premises withoutcompensation to Tenant unless Landlord provides written notice to Tenant toremove same at the expiration of the Lease, in which event Tenant shallpromptly remove such Alterations and restore the Premises to good order andcondition. At Lease termination, all furniture, movable trade fixtures andequipment (including telephone, security and communication equipment systemwiring and cabling) shall, at Landlord’s option, be removed by Tenant and shallbe accomplished in a good and workmanlike manner so as not to damage thePremises or Building and in such manner so as not to disturb other tenants inthe Building.  All such installations,removals and restoration shall be accomplished in a good and workmanlike mannerso as not to damage the Premises or Building and in such manner so as not todisturb other tenants in the Building. If Tenant fails to remove any items required to be removed pursuant tothis Article, Landlord may do so and the reasonable costs and expenses thereofshall be deemed Additional Rent hereunder and shall be reimbursed by Tenant toLandlord within fifteen (15) business days of Tenant’s receipt of an invoicetherefor from Landlord.

 

11.           CONSTRUCTION LIENS.

 

(a)   Tenant will not suffer orpermit any contractor’s, subcontractor’s or supplier’s lien (a “ConstructionLien”) 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 toTenant; and if any Construction Lien shall at any time be filed against thePremises or any part thereof, Tenant, within ten (10) days after notice of thefiling thereof, shall cause it to be discharged of record by payment, deposit,bond, order of a court of competent jurisdiction or otherwise. If Tenant shallfail to cause such Construction Lien to be discharged within the periodaforesaid, then in addition to any other right or remedy, Landlord may, butshall not be obligated to, discharge it either by paying the amount claimed tobe due or by procuring the discharge of such lien by deposit or by bondingproceedings. Any amount so paid by Landlord, plus all of Landlord’s costs andexpenses associated therewith (including, without limitation, reasonable legalfees), shall constitute Additional Rent payable by Tenant under this Lease andshall be paid by Tenant to Landlord on demand with interest from the date ofadvance by Landlord at the Default Rate.

 

(b)   Nothing in this Lease, or inany consent to the making of alterations or improvements shall be deemed orconstrued in any way as constituting authorization by Landlord for the makingof any alterations or additions by Tenant within the meaning of 49 P.S.Sections 1101-1902, as amended, or under the Contractor and SubcontractorPayment Act or any amendment thereof, or constituting a request by Landlord,express or implied, to any contractor, subcontractor or supplier for theperformance of any labor or the furnishing of any materials for the use orbenefit of Landlord.

 

12.           ASSIGNMENT AND SUBLETTING.

 

(a)           Subject to the remaining subsectionsof Article 12, except as expressly permitted pursuant to this section,Tenant shall not, without the prior written consent of Landlord, such consentnot to be unreasonably withheld, assign, transfer or hypothecate this Lease orany interest herein or sublet the Premises or any part thereof.  Any of the foregoing acts without suchconsent shall be void and shall, at the option of Landlord, terminate thisLease.  Subject to subparagraph 12(i)below, this Lease shall not, nor shall any interest herein, be assignable as tothe interest of Tenant by operation of law or by merger, consolidation or assetsale, without the written consent of 

 

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Landlord.

 

(b)           If at any time or from time to timeduring the term of this Lease Tenant desires to assign this Lease or sublet allor any part of the Premises, Tenant shall give notice to Landlord of suchdesire, including the name, address and contact party for the proposed assigneeor subtenant, a description of such party’s business history, the effectivedate of the proposed assignment or sublease (including the proposed occupancydate by the proposed assignee or sublessee), and in the instance of a proposedsublease, the square footage to be subleased, a floor plan professionally drawnto scale depicting the proposed sublease area, and a statement of the duration of the proposed sublease (which shall inany and all events expire by its terms prior to the scheduled expiration ofthis Lease, and immediately upon the sooner termination hereof).   Landlord may, at its option, and in its soleand absolute discretion, exercisable by notice given to Tenant within sixty(60) days next following Landlord’s receipt of Tenant’s notice (which noticefrom Tenant shall, as a condition of its effectiveness, include all of theabove-enumerated information), elect to recapture the Premises if Tenant isproposing to sublet or assign the Premises or such portion as is proposed byTenant to be sublet (and in each case, the designated and non-designatedparking spaces included in this demise, or a pro-rata portion thereof in theinstance of the recapture of less than all of the Premises), and terminate thisLease with respect to the space being recaptured.

 

(c)           If Landlord electsto recapture the Premises or a portion thereof as aforesaid, then from andafter the effective date thereof as approved by Landlord, after Tenant shallhave fully performed such obligations as are enumerated herein to be performedby Tenant in connection with such recapture, and except as to obligations andliabilities accrued and unperformed (and any other obligations expressly statedin this Lease to survive the expiration or sooner termination of this Lease),Tenant shall be released of and from all lease obligations thereafter otherwiseaccruing with respect to the Premises (or such lesser portion as shall havebeen recaptured by Landlord).  ThePremises, 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 andrestoring 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 uponthe expiration or sooner termination of this Lease.  Upon the completion of any recapture andtermination as provided herein, Tenant’s Fixed Rent and other monetaryobligations hereunder shall be adjusted pro-rated based upon the reducedrentable square footage then comprising the Premises.

 

(d)           If Landlord provides writtennotification to Tenant electing not to recapture the Premises (or so muchthereof as Tenant had proposed to sublease), then Tenant may proceed to marketthe designated space and may complete such transaction and execute anassignment of this Lease or a sublease agreement (in each case in formacceptable to Landlord) within a period of five (5) months next followingLandlord’s notice to Tenant that it declines to recapture such space, providedthat Tenant shall have first obtained in any such case the prior writtenconsent of Landlord to such transaction, which consent shall not beunreasonably withheld.  If, however,Tenant shall not have assigned this Lease or sublet the Premises with Landlord’sprior written consent as aforesaid within five (5) months next followingLandlord’s notice to Tenant that Landlord declines to recapture the Premises(or such portion thereof as Tenant initially sought to sublease), then in suchevent, Tenant shall again be required to request Landlord’s consent to theproposed transaction, whereupon Landlord’s right to recapture the Premises (orsuch portion as Tenant shall desire to sublease) shall be renewed upon the sameterms and as otherwise provided in subsection (b) above.

 

For purposes ofthis Section 12(d), and without limiting the basis upon which Landlord maywithhold its consent to any proposed assignment or sublease, the parties agreethat it shall not be unreasonable for Landlord to withhold its consent to suchassignment or sublease if: (i) the proposed assignee or sublessee shall have anet worth which is not acceptable to Landlord in Landlord’s reasonablediscretion; (ii) the proposed assignee or sublessee shall have no reliablecredit history or an unfavorable credit history, or other reasonable evidenceexists that the proposed assignee or sublessee will experience  difficulty in satisfying its financial orother 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 Premisesrequested to be subleased renders the balance of the Premises unleasable as aseparate area; (v) Tenant is proposing a sublease at a rental or subrental ratewhich is less than the then fair 

 

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market rental rate for the portion of the Premises being subleased orassigned, or Tenant is proposing to assign or sublease to an existing tenant ofthe Building or another property owned by Landlord or by its partners, or toanother prospect with whom Landlord or its partners, or their affiliates arethen negotiating; (vi) the proposed assignee or sublessee will cause Landlord’sexisting parking facilities to be reasonably inadequate, or in violation ofcode requirements, or require Landlord to increase the parking area or thenumber of parking spaces to meet code requirements, or the nature of such party’sbusiness shall reasonably require more than four (4) parking spaces per 1,000rentable square feet of floor space, or (vii) the nature of such party’sproposed business operation would or might reasonably permit or require the useof the Premises in a manner inconsistent with the “Permitted Use” specifiedherein, would or might reasonably otherwise be in conflict with expressprovisions of this Lease,  would or mightreasonably violate the terms of  anyother 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 economicconsideration received by Tenant as a result of any subletting, assignment orlicense (except rental or other payments received which are attributable to theamortization of the cost of leasehold improvements made to the sublet orassigned portion of the premises by Tenant for subtenant or assignee, and otherreasonable expenses incident to the subletting or assignment, includingstandard leasing commissions) whether denominated rentals under the sublease orotherwise, which exceed, in the aggregate, the total sums which Tenant isobligated to pay Landlord under this Lease (prorated to reflect obligationsallocable to that portion of the premises subject to such sublease orassignment) shall be divided evenly between Landlord and Tenant, with Landlord’sportion being payable to Landlord as Additional Rental under this Lease withoutaffecting or reducing any other obligation of Tenant hereunder.

 

(f)            Regardless ofLandlord’s consent, no subletting or assignment shall release Tenant of Tenant’sobligation or alter the primary liability of Tenant to pay the Rent and toperform all other obligations to be performed by Tenant hereunder.  The acceptance of rental by Landlord from anyother person shall not be deemed to be a waiver by Landlord of any provisionhereof.  Consent to one assignment orsubletting shall not be deemed consent to any subsequent assignment orsubletting.  In the event of default byany assignee of Tenant or any successor of Tenant in the performance of any ofthe terms hereof, Landlord may proceed directly against Tenant without thenecessity of exhausting remedies against such assignee or successor.

 

(g)           In the event that (i) the Premises orany 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 theassignee or subtenant and apply the net amount collected to the rent hereinreserved; but no such collection shall be deemed a waiver of the provisions ofthis Article 12 with respect to assignment and subletting, or theacceptance of such assignee or subtenant as Tenant hereunder, or a release ofTenant from further performance of the covenants herein contained.

 

(h)           In connection with each proposedassignment or subletting of the Premises by Tenant, Tenant shall pay toLandlord (i) an administrative fee of $250 per request (including requests fornon-disturbance agreements and Landlord’s or its lender’s waivers) in order todefer Landlord’s administrative expenses arising from such request, plus (ii)Landlord’s reasonable attorneys’ fees.

 

(i)            Tenant may, after notice to, butwithout the consent of Landlord, assign this Lease to an affiliate (i.e., acorporation 50% or more of whose capital stock is owned by the same stockholdersowning 50% or more of Tenant’s capital stock), parent or subsidiary corporationof Tenant or to a corporation to which it sells or assigns all of substantiallyall of its assets or stock or with which it may be consolidated or merged (“Affiliate”),provided such purchasing, consolidated, merged, affiliated or subsidiarycorporation shall, in writing, assume and agree to perform all of theobligations of Tenant under this Lease, shall have a net worth at least equalto $10,000,000, and it shalldeliver such assumption with a copy of such assignment to Landlord within ten(10) days thereafter, and provided further that Tenant shall not be released ordischarged from any liability under this Lease by reason of such assignment.

 

(j)            Anything in this Article 12to the contrary notwithstanding, no assignment or sublease 

 

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shall be permitted under this Lease if Tenant is indefault at the time of such assignment or has previously defaulted(irrespective of the fact that Tenant cured such default) more than twice inconnection with any of its monetary obligations under this Lease and suchmonetary defaults aggregate in excess of $20,000.

 

13.           LANDLORD’S RIGHT OF ENTRY.

 

                Landlord andpersons authorized by Landlord may enter the Premises at all reasonable timesupon reasonable advance notice (except in the case of an emergency in whichcase 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 forinconvenience 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, sofar as practicable, so as to not unreasonably interfere with Tenant’s use ofthe Premises.  Provided, however, thatsuch efforts shall not require Landlord to use overtime labor unless Tenantshall pay for the increased costs to be incurred by Landlord for such overtimelabor.  Landlord also shall have theright to enter the Premises at all reasonable times after giving prior oralnotice to Tenant, to exhibit the Premises to any prospective purchaser and/or mortgagee.   Landlord also shall have the right to enterthe 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 otherwiseprovided in subparagraphs (b) and (c) of this Article, Tenant, at its sole costand expense and throughout the Term of this Lease, shall keep and maintain thePremises in good order and condition (reasonable wear and tear excepted), freeof accumulation of dirt and rubbish. Landlord shall, upon written notice from Tenant, promptly make allrepairs to the Premises (except for any Alterations made by Tenant to the BaseBuilding Specifications) necessary to keep and maintain such good order andcondition and shall charge Tenant by invoice for the cost of such repairs atLandlord’s standard rates (such rate to be competitive with the market rate forsuch services).  Such charges shall beconsidered Additional Rent and shall be payable by Tenant within thirty (30)days of delivery of an invoice.  Whenused in this Article 14, the term “repairs” shall include replacementsand renewals when necessary.

 

(b)           Landlord, throughout the Term of thisLease and at Landlord’s sole cost and expenses, shall make all necessaryrepairs to the footings and foundations and the structural steel columns andgirders forming a part of the Premises.

 

(c)           Landlord shall maintain all HVACsystems, plumbing and electric systems serving the Building and the Premises.

 

(d)           Landlord, throughout the Term of thisLease, shall make all necessary repairs to the Building outside of the Premisesand the common areas, including the roof, walls, exterior portions of thePremises and the Building, utility lines, equipment and other utilityfacilities 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, thatLandlord shall have no responsibility to make any repairs unless and until Landlordreceives written notice of the need for such repair or Landlord has actualknowledge of the need to make such repair.

 

(e)           Landlord shall keep and maintain allcommon 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 andmaintain all landscaped areas in a neat and orderly condition.

 

(f)            Notwithstanding anything herein tothe contrary, repairs to the Premises, Building or Project and its appurtenantcommon areas made necessary by a negligent or willful act or omission of Tenantor any employee, agent, contractor, or invitee of Tenant shall be made at thesole cost and expense of Tenant, except to the 

 

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extent of insurance proceeds received by Landlord.

 

(g)           Landlord shall provide Tenant withjanitorial services for the Premises Monday through Friday of each week inaccordance with guidelines as may be set forth by Landlord from time to time.

 

15.           INSURANCE; SUBROGATION RIGHTS.

 

(a)           Tenant shall obtain and keep in forceat all times during the term hereof, at its own expense, commercial generalliability insurance including contractual liability and personal injuryliability 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 asthe result of any one accident or disaster and on account of damage toproperty, or in such other amounts as Landlord may from time to timerequire.  Tenant shall also require itsmovers to procure and deliver to Landlord a certificate of insurance namingLandlord as an additional insured.

 

(b)           All liability insurance requiredhereunder shall not be subject to cancellation without at least thirty(30) days prior notice to all insureds, and shall name Landlord and Tenant asinsureds, as their interests may appear, and, if requested by Landlord, shallalso name as an additional insured any mortgagee or holder of any mortgagewhich may be or become a lien upon any part of the Premises.  Prior to the commencement of the Term, Tenantshall provide Landlord with certificates which evidence that the coveragesrequired have been obtained for the policy periods.  Tenant shall also furnish to Landlordthroughout the term hereof replacement certificates at least thirty (30) daysprior to the expiration dates of the then current policy or policies.  All the insurance required under this Leaseshall be issued by insurance companies authorized to do business in theCommonwealth of Pennsylvania with a financial rating of at least an A-X asrated in the most recent edition of Best’s Insurance Reports and in businessfor the past five years.  The limit of anysuch insurance shall not limit the liability of Tenant hereunder.  If Tenant fails to procure and maintain suchinsurance, Landlord may, but shall not be required to, procure and maintain thesame, at Tenant’s expense to be reimbursed by Tenant as Additional Rent withinten (10) days of written demand.  Anydeductible under such insurance policy or self-insured retention under suchinsurance policy in excess of Twenty Five Thousand ($25,000) must be approvedby Landlord in writing prior to issuance of such policy.  Tenant shall not self-insure without Landlord’sprior written consent.   The policylimits set forth herein shall be subject to periodic review, and Landlordreserves the right to require that Tenant increase the liability coveragelimits if, in the reasonable opinion of Landlord, the coverage becomesinadequate or is less than commonly maintained by tenants of similar buildingsin the area making similar uses.

 

(c)           Landlord shall obtain and maintainthe following insurance during the Term of this Lease:  (i) replacement cost insurance including “specialform” property insurance on the Building and on the Project, and (ii)commercial general liability insurance (including bodily injury and propertydamage) covering Landlord’s operations at the Project in amounts reasonablyrequired by the Landlord’s lender or Landlord.

 

(d)           Each party hereto,and anyone claiming through or under them by way of subrogation, waives andreleases any cause of action it might have against the other party and theirrespective employees, officers, members, partners, trustees and agents, onaccount of any loss or damage that is insured against under any insurancepolicy required to be obtained hereunder (to the extent that such loss ordamage is recoverable under such insurance policy) that covers the Project,Building or Premises, Landlord’s or Tenant’s fixtures, personal property,leasehold improvements or business and which names Landlord or Tenant, as thecase may be, as a party insured.  Eachparty hereto agrees that it will cause its insurance carrier to endorse allapplicable policies waiving the carrier’s right of recovery under subrogationor otherwise against the other party. During any period while such waiver of right of recovery is in effect,each party shall look solely to the proceeds of such policies for compensationfor loss, to the extent such proceeds are paid under such policies.

 

16.           INDEMNIFICATION.

 

Tenant shall defend, indemnify and hold harmlessLandlord and their respective affiliates, employees and agents from and againstany and all third-party claims, actions, damages, liability and expense(including all 

 

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reasonable attorney’s fees, expenses and liabilities incurred indefense of any such claim or any action or proceeding brought thereon) arisingfrom (i) Tenant’s improper use of the Premises, (ii) the improper conduct ofTenant’s business, (iii) any activity, work or things done, permitted orsuffered by Tenant or its agents, licensees or invitees in or about thePremises or elsewhere contrary to the requirements of the Lease, (iv) anybreach or default in the performance of any obligation of Tenant’s part to beperformed under the terms of this Lease, and (v) any negligence or willful actof Tenant or any of Tenant’s agents, contractors, employees or invitees.  Without limiting the generality of theforegoing, the obligations of Tenant shall include any case in which Landlordshall be made a party to any litigation arising out of Tenant’s use or occupancyof the Premises and commenced by or against Tenant, its agents, subtenants,licensees, concessionaires, contractors, customers or employees, then Tenantshall defend, indemnify and hold harmless Landlord and shall pay all costs,expenses and reasonable attorney’s fees incurred or paid by Landlord inconnection with such litigation, after notice to Tenant and Tenant’s refusal todefend such litigation, and upon notice from Landlord shall defend the same atTenant’s expense by counsel satisfactory to Landlord.

 

17.           QUIET ENJOYMENT.

 

Provided Tenant has performed all of the terms andconditions of this Lease, including the payment of Fixed Rent and AdditionalRent, to be performed by Tenant, Tenant shall peaceably and quietly hold andenjoy the Premises for the Term, without hindrance from Landlord, or anyoneclaiming by through or under Landlord under and subject to the terms andconditions of this Lease and of any mortgages now or hereafter affecting all ofor any portion of the Premises.

 

18.           FIRE DAMAGE.

 

(a)   Except as provided below, incase of damage to the Premises by fire or other insured casualty, Landlordshall repair the damage.  Such repairwork shall be commenced promptly following notice of the damage and completedwith due diligence, taking into account the time required for Landlord toeffect a settlement with and procure insurance proceeds from the insurer,except for delays due to governmental regulation, scarcity of or inability toobtain labor or materials, intervening acts of God or other causes beyondLandlord’s reasonable control.

 

(b)   Notwithstanding theforegoing, if (i) the damage is of a nature or extent that, in Landlord’sreasonable judgment (to be communicated to Tenant within sixty (60) days fromthe date of the casualty), the repair and restoration work would require morethan two hundred ten (210) consecutive days to complete after the casualty(assuming normal work crews not engaged in overtime), or (ii) if more thanthirty (30%) percent of the total area of the Building is extensively damaged,or (iii) the casualty occurs in the last Lease Year of the Term and Tenant hasnot exercised a renewal right, either party shall have the right to terminatethis Lease and all the unaccrued obligations of the parties hereto, by sendingwritten notice of such termination to the other within ten (10) days of Tenant’sreceipt of the notice from Landlord described above.  Such notice is to specify a termination dateno less than fifteen (15) days after its transmission.

 

(c)   If the insurance proceedsreceived by Landlord as dictated by the terms and conditions of any financingthen existing on the Building, (excluding any rent insurance proceeds) wouldnot be sufficient to pay for repairing the damage or are required to be appliedon account of any mortgage which encumbers any part of the Premises orBuilding, or if the nature of loss is not covered by Landlord’s fire insurancecoverage, Landlord may elect either to (i) repair the damage as above providednotwithstanding such fact or (ii) terminate this Lease by giving Tenant noticeof Landlord’s election as aforesaid.

 

(d)   In the event Landlord hasnot completed restoration of the Premises within two hundred ten (210) daysfrom the date of casualty (subject to delay due to weather conditions,shortages of labor or materials or other reasons beyond Landlord’s control,Tenant may terminate this Lease by written notice to Landlord within thirty(30) business days following the expiration of such 210 day period (as extendedfor reasons beyond Landlord’s control as provided above) unless, within thirty(30) business days following receipt of such notice, Landlord has substantiallycompleted such restoration and delivered the Premises to Tenant foroccupancy.  Notwithstanding theforegoing, in the event Tenant is responsible for the aforesaid casualty,Tenant shall not have the right to terminate 

 

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this Lease if Landlord is willing to rebuild andrestore the Premises.

 

(e)   In the event of damage ordestruction to the Premises or any part thereof, Tenant’s obligation to payFixed Rent and Additional Rent shall be equitably adjusted or abated.

 

19.           SUBORDINATION; RIGHTS OF MORTGAGEE.

 

(a)           This Lease shall be subject andsubordinate at all times to the lien of any mortgages now or hereafter placedupon the Premises, Building and/or Project and land of which they are a partwithout the necessity of any further instrument or act on the part of Tenant toeffectuate such subordination.  Tenantfurther agrees to execute and deliver upon demand such further instrument orinstruments evidencing such subordination of this Lease to the lien of any suchmortgage and such further instrument or instruments of attornment as shall bedesired by any mortgagee or proposed mortgagee or by any other person.  Notwithstanding the foregoing, any mortgageemay at any time subordinate its mortgage to this Lease, without Tenant’sconsent, by notice in writing to Tenant, and thereupon this Lease shall bedeemed prior to such mortgage without regard to their respective dates ofexecution and delivery and in that event such mortgagee shall have the samerights with respect to this Lease as though it had been executed prior to theexecution and delivery of the mortgage. Upon written request of Tenant, Landlord shall use its reasonableefforts to deliver a subordination, attornment and nondisturbance agreement (“NondisturbanceAgreement”) from Landlord’s Mortgagee, on each such mortgagee’s standard form,which shall provide, interalia, that the leasehold estategranted to Tenant under this Lease will not be terminated or disturbed byreason of the foreclosure of the mortgage held by Landlord’s Mortgagee, so longas Tenant shall not be in default under this Lease and shall pay all sums dueunder this Lease without offsets or defenses thereto and shall fully performand comply with all of the terms, covenants and conditions of this Lease on thepart of Tenant to be performed and/or complied with, and in the event amortgagee or its respective successor or assigns shall enter into and lawfullybecome possessed of the Premises covered by this Lease and shall succeed to therights of Landlord hereunder, Tenant will attorn to the successor as itslandlord under this Lease and, upon the request of such successor landlord,Tenant will execute and deliver an attornment agreement in favor of thesuccessor landlord.

 

(b)           In the event Landlord shall be or isalleged to be in default of any of its obligations owing to Tenant under thisLease, Tenant agrees to give to the holder of any mortgage (collectively the “Mortgagee”)now or hereafter placed upon the Premises, Building and/or Project, notice byovernight mail of any such default which Tenant shall have served uponLandlord, provided that prior thereto Tenant has been notified in writing (byway of Notice of Assignment of Rents and/or Leases or otherwise in writing toTenant) of the name and addresses of any such Mortgagee.  Tenant shall not be entitled to exercise anyright or remedy as there may be because of any default by Landlord withouthaving given such notice to the Mortgagee, if required to do so; and Tenantfurther agrees that if Landlord shall fail to cure such default the Mortgageeshall have thirty (30) additional days (measured from the later of the date onwhich the default should have been cured by Landlord or the Mortgagee’s receiptof such notice from Tenant), within which to cure such default, provided thatif such default be such that the same could not be cured within such period andMortgagee is diligently pursuing the remedies necessary to effectuate the cure(including but not limited to foreclosure proceedings if necessary toeffectuate the cure); then Tenant shall not exercise any right or remedy asthere may be arising because of Landlord’s default, including but not limitedto, termination of this Lease as may be expressly provided for herein oravailable to Tenant as a matter of law, if the Mortgagee either has cured thedefault within such time periods, or as the case may be, has initiated the cureof same within such period and is diligently pursuing the cure of same asaforesaid.

 

20.           CONDEMNATION.

 

(a)           If more than twenty(20%) percent of the floor area of the Premises is taken or condemned for apublic or quasi-public use (a sale in lieu of condemnation to be deemed ataking or condemnation for purposes of this Lease), this Lease shall, at eitherparty’s option, terminate as of the date title to the condemned real estatevests in the condemnor, and the Fixed Rent and Additional Rent herein reservedshall be apportioned and paid in full by Tenant to Landlord to that date andall rent prepaid for period beyond that date shall forthwith be repaid byLandlord to Tenant and neither party shall thereafter have any liability hereunder.

 

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(b)           If less than twenty(20%) percent of the floor area of the Premises is taken or if neither Landlordnor Tenant have elected to terminate this Lease pursuant to the precedingsentence, Landlord shall do such work as may be reasonably necessary to restorethe portion of the Premises not taken to tenantable condition for Tenant’suses, but shall not be required to expend more than the net award Landlordreasonably expects to be available for restoration of the Premises.  If Landlord determines that the damagesavailable for restoration of the Building and/or Project will not be sufficientto pay the cost of restoration, or if the condemnation damage award is requiredto be applied on account of any mortgage which encumbers any part of thePremises, Building and/or Project, Landlord may terminate this Lease by givingTenant thirty (30) days prior notice specifying the termination date.

 

(c)           If this Lease is notterminated after any such taking or condemnation, the Fixed Rent and theAdditional Rent shall be equitably reduced in proportion to the area of thePremises which has been taken for the balance of the Term.

 

(d)           If a part or all ofthe Premises shall be taken or condemned, all compensation awarded upon suchcondemnation or taking shall go to Landlord and Tenant shall have no claimthereto other than Tenant’s damages associated with moving, storage andrelocation; and Tenant hereby expressly waives, relinquishes and releases toLandlord any claim for damages or other compensation to which Tenant mightotherwise be entitled because of any such taking or limitation of the leaseholdestate hereby created, and irrevocably assigns and transfers to Landlord anyright to compensation of all or a part of the Premises or the leasehold estate.

 

21.           ESTOPPEL CERTIFICATE.

 

(a)   Each party agrees at anytime and from time to time, within ten (10) days after the other party’swritten request, to execute, acknowledge and deliver to the other party awritten instrument in recordable form certifying all information reasonablyrequested, including but not limited to, the following: that this Lease isunmodified and in full force and effect (or if there have been modifications,that it is in full force and effect as modified and stating the modifications),the Commencement Date, the expiration date of this Lease, the square footage ofthe Premises, the rental rates applicable to the Premises, the dates to whichRent, Additional Rent, and other charges have been paid in advance, if any, andstating whether or not to the best knowledge of the party signing suchcertificate, the requesting party is in default in the performance of anycovenant, agreement or condition contained in this Lease and, if so, specifyingeach such default of which the signer may have knowledge.  It is intended that any such certificationand statement delivered pursuant to this Article may be relied upon by anyprospective purchaser of the Project or any mortgagee thereof or any assigneeof Landlord’s interest in this Lease or of any mortgage upon the fee of thePremises or any part thereof.

 

22.           DEFAULT.

 

If:

(a)           Tenant fails to pay any installmentof Fixed Rent or any amount of Additional Rent when due; provided, however,Landlord shall provide written notice of the failure to pay such Rent andTenant shall have a three (3) business day grace period from its receipt ofsuch Landlord’s notice (facsimile receipt being deemed to be notice hereunder)within which to pay such Rent without creating a default hereunder.  The late fee set forth in Article 5 hereofshall be due on the first day after such payment is due irrespective of theforegoing notice and grace period.  ** No additional notice shall berequired thereafter and Landlord shall be entitled to immediately exercise itsremedies hereunder if payment is not received during the grace period,**

 

(b)           Tenant “vacates” the Premises (otherthan in the case of a permitted subletting or assignment) or permits the sameto be unoccupied

 

(c)           Tenant fails to bond over aconstruction or mechanics lien within the time period set forth 

 

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in Article 11,

 

(d)           Tenant fails to observe or performany of Tenant’s other non-monetary agreements or obligations herein containedwithin thirty (30) days after written notice specifying the default, or theexpiration of such additional time period as is reasonably necessary to curesuch default not to exceed sixty (60) days after written notice specifying thedefault, provided Tenant immediately commences and thereafter proceeds with alldue diligence and in good faith to cure such default,

 

(e)           Tenant makes anyassignment for the benefit of creditors,

 

(f)            a petition is filed or anyproceeding is commenced against Tenant or by Tenant under any federal or statebankruptcy or insolvency law and such petition or proceeding is not dismissedwithin thirty (30) days,

 

(g)           a receiver or other official isappointed for Tenant or for a substantial part of Tenant’s assets or for Tenant’sinterests in this Lease,

 

(h)           any attachment or execution against asubstantial part of Tenant’s assets or of Tenant’s interests in this Leaseremains unstayed or undismissed for a period of more than ten (10) days, or

 

(i)            a substantial part of Tenant’sassets or of Tenant’s interest in this Lease is taken by legal process in anyaction against Tenant,

 

then, in any suchevent, an Event of Default shall be deemed to exist and Tenant shall be indefault hereunder.

 

                                Ifan Event of Default shall occur, the following provisions shall apply andLandlord shall have, in addition to all other rights and remedies available atlaw or in equity, the rights and remedies set forth therein, which rights andremedies may be exercised upon or at any time following the occurrence of anEvent of Default unless, prior to such exercise, Landlord shall agree inwriting with Tenant that the Event(s) of Default has been cured by Tenant inall respects.

 

(a)           Acceleration of Rent.  By notice to Tenant, Landlord shall have theright to accelerate all Fixed Rent and all expense installments due hereunderand otherwise payable in installments over the remainder of the Term, and, atLandlord’s option, any other Additional Rent to the extent that such AdditionalRent can be determined and calculated to a fixed sum; and the amount ofaccelerated rent to the termination date, without further notice or demand forpayment, shall be due and payable by Tenant within five (5) days after Landlordhas so notified Tenant, such amount collected from Tenant shall be discountedto present value using an interest rate of six percent (6%) per annum.  Additional Rent which has not been included,in whole or in part, in accelerated rent, shall be due and payable by Tenantduring the remainder of the Term, in the amounts and at the times otherwiseprovided for in this Lease.

 

Notwithstandingthe foregoing or the application of any rule of law based on election ofremedies or otherwise, if Tenant fails to pay the accelerated rent in full whendue, Landlord thereafter shall have the right by notice to Tenant, (i) toterminate Tenant’s further right to possession of the Premises and (ii) toterminate this Lease under subparagraph (b) below; and if Tenant shall havepaid part but not all of the accelerated rent, the portion thereof attributableto the period equivalent to the part of the Term remaining after Landlord’stermination of possession or termination of this Lease shall be applied byLandlord against Tenant’s obligations owing to Landlord, as determined by theapplicable provisions of subparagraphs (c) and (d) below.

 

(b)           Termination of Lease.  By notice to Tenant, Landlord shall have theright to terminate this Lease as of a date specified in the notice oftermination and in such case, Tenant’s rights, including any based on anyoption to renew, to the possession and use of the Premises shall end absolutelyas of the termination date; and this Lease shall also terminate in all respectsexcept for the provisions hereof regarding Landlord’s damages and Tenant’sliabilities arising prior to, out of and following the Event of Default and theensuing termination.

 

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                                Followingsuch termination and the notice of same provided above (as well as upon anyother termination of this Lease by expiration of the Term or otherwise)Landlord immediately shall have the right to recover possession of thePremises; and to that end, Landlord may enter the Premises and take possession,without the necessity of giving Tenant any notice to quit or any other furthernotice, with or without legal process or proceedings, and in so doing Landlordmay remove Tenant’s property (including any improvements or additions to thePremises which Tenant made, unless made with Landlord’s consent which expresslypermitted Tenant to not remove the same upon expiration of the Term), as wellas the property of others as may be in the Premises, and make dispositionthereof in such manner as Landlord may deem to be commercially reasonable andnecessary under the circumstances.

 

(c)   Tenant’s Continuing Obligations/Landlord’s Reletting Rights.

 

(i)            Unless and until Landlord shall haveterminated this Lease under subparagraph (b) above, Tenant shall remain fullyliable and responsible to perform all of the covenants and to observe all theconditions of this Lease throughout the remainder of the Term to the earlytermination date; and, in addition, Tenant shall pay to Landlord, upon demandand as Additional Rent, the total sum of all costs, losses, damages andexpenses, including reasonable attorneys’ fees, as Landlord incurs, directly orindirectly, because of any Event of Default having occurred.

 

(ii)           If Landlord either terminates Tenant’sright to possession without terminating this Lease or terminates this Lease andTenant’s leasehold estate as above provided, then, subject to the provisionsbelow, Landlord shall have the unrestricted right to relet the Premises or anypart(s) thereof to such tenant(s) on such provisions and for such period(s) asLandlord may deem appropriate. Landlordagrees, however, to use reasonable efforts to mitigate its damages, providedthat Landlord shall not be liable to Tenant for its inability to mitigatedamages if it shall endeavor to relet the Premises in like manner as it offersother comparable vacant space or property available for leasing to others inthe Project of which the Building is a part.  If Landlord relets the Premises after such adefault, the costs recovered from Tenant shall be reallocated to take into considerationany additional rent which Landlord receives from the new tenant which is inexcess to that which was owed by Tenant.

 

(iii)          Notwithstanding anything in this Leaseto the contrary, in the event of a default under this Lease (including thefiling of bankruptcy by or against Tenant), all personal property of Tenant atthe Building, shall become Landlord’s property, shall constitute security ofTenant’s obligations under this Lease and shall not be removed by Tenant fromthe Building.

 

(d)           Landlord’s Damages.

 

(i)            The damages which Landlord shall beentitled to recover from Tenant shall be the sum of:

 

(A)       all Fixed Rent and Additional Rentaccrued and unpaid as of the termination date; and

 

(B)       (i) all costs and expenses incurred by Landlord in recovering possession ofthe Premises, including removal and storage of Tenant’s property, (ii) thecosts and expenses of restoring the Premises to the condition in which the samewere to have been surrendered by Tenant as of the expiration of the Term, and(iii) the costs of reletting commissions; and

 

(C)       all Fixed Rent and Additional Rent (tothe extent that the amount(s) of Additional Rent has been then determined)otherwise payable by Tenant over the remainder of the Term as reduced topresent value.

 

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Less deductingfrom the total determined under subparagraphs (A), (B) and (C) all Rent and allother Additional Rent to the extent determinable as aforesaid, (to the extentthat like charges would have been payable by Tenant) which Landlord receivesfrom other tenant(s) by reason of the leasing of the Premises or part during orattributable to any period falling within the otherwise remainder of the Term.

 

(ii)           The damage sums payable by Tenantunder the preceding provisions of this paragraph (d) shall be payable on demandfrom time to time as the amounts are determined; and if from Landlord’ssubsequent receipt of rent as aforesaid from reletting, there be any excesspayment(s) by Tenant by reason of the crediting of such rent thereafterreceived, the excess payment(s) shall be refunded by Landlord to Tenant,without interest.

 

(iii)          Landlord may enforce and protect therights of Landlord hereunder by a suit or suits in equity or at law for thespecific performance of any covenant or agreement contained herein, and for theenforcement of any other appropriate legal or equitable remedy, including,without limitation, injunctive relief, and for recovery of consequentialdamages and all moneys due or to become due from Tenant under any of theprovisions of this Lease.

 

(e)           Landlord’s Right to Cure.  Without limiting the generality of theforegoing, if Tenant shall be in default in the performance of any of itsobligations hereunder, Landlord, without being required to give Tenant anynotice or opportunity to cure, may (but shall not be obligated to do so), inaddition to any other rights it may have in law or in equity, cure such defaulton behalf of Tenant, and Tenant shall reimburse Landlord upon demand for any sumspaid or costs incurred by Landlord in curing such default, including reasonableattorneys’ fees and other legal expenses, together with interest at 10% perannum Rate from the dates of Landlord’s incurring of costs or expenses.

 

Tenant furtherwaives the right to any notices to quit as may be specified in the Landlord andTenant Act of Pennsylvania, Act of April 6, 1951, as amended, or any similar orsuccessor provision of law, and agrees that five (5) days notice shall besufficient in any case where a longer period may be statutorily specified.

 

(f)    Additional Remedies.  In addition to, and not in lieu of any of theforegoing rights granted to Landlord:

 

(i)            **TENANT HEREBY EMPOWERS ANYPROTHONOTARY, CLERK OF COURT OR ATTORNEY OF ANY COURT OF RECORD TO APPEAR FORTENANT IN ANY AND ALL ACTIONS WHICH MAY BE BROUGHT FOR ANY RENT, OR ANY CHARGESHEREBY RESERVED OR DESIGNATED AS RENT OR ANY OTHER SUM PAYABLE BY TENANT TOLANDLORD UNDER OR BY REASON OF THIS LEASE (INCLUDING, WITHOUT LIMITATION, ANYSUM PAYABLE UNDER SUBPARAGRAPHS (a) THROUGH (e) OF THIS ARTICLE 22, ANDTO SIGN FOR TENANT AN AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN ACTIONOR ACTIONS FOR THE RECOVERY OF SAID RENT, CHARGES AND OTHER SUMS, AND IN SAIDSUIT OR IN SAID ACTION OR ACTIONS TO CONFESS JUDGMENT AGAINST TENANT FOR ALL ORANY PART OF THE RENT SPECIFIED IN THIS LEASE AND THEN UNPAID INCLUDING, ATLANDLORD’S OPTION, THE RENT FOR THE ENTIRE UNEXPIRED BALANCE OF THE TERM OFTHIS LEASE, AND ALL OR ANY PART OF ANY OTHER OF SAID CHARGES OR SUMS, AND FORINTEREST AND COSTS TOGETHER WITH REASONABLE ATTORNEY’S FEES OF 5%.  SUCH AUTHORITY SHALL NOT BE EXHAUSTED BY ONEEXERCISE THEREOF, BUT JUDGMENT MAY BE CONFESSED AS AFORESAID FROM TIME TO TIMEAS OFTEN AS ANY OF SAID RENT OR SUCH OTHER SUMS, CHARGES, PAYMENTS, COSTS ANDEXPENSES SHALL FALL DUE OR BE IN ARREARS, AND SUCH POWERS MAY BE EXERCISED ASWELL AFTER THE EXPIRATION OF THE TERM OR DURING ANY EXTENSION OR RENEWAL OFTHIS LEASE.**

 

(ii)           WHEN THIS LEASE OR TENANT’S RIGHT OFPOSSESSION SHALL BE TERMINATED BY COVENANT OR CONDITION BROKEN, OR FOR ANYOTHER REASON, EITHER 

 

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DURING THE TERM OFTHIS LEASE OR ANY RENEWAL OR EXTENSION THEREOF, AND ALSO WHEN AND AS SOON ASTHE TERM HEREBY CREATED OR ANY EXTENSION THEREOF SHALL HAVE EXPIRED, IT SHALLBE LAWFUL FOR ANY ATTORNEY AS ATTORNEY FOR TENANT TO FILE AN AGREEMENT FORENTERING IN ANY COMPETENT COURT AN ACTION TO CONFESS JUDGMENT IN EJECTMENTAGAINST TENANT AND ALL PERSONS CLAIMING UNDER TENANT, WHEREUPON, IF LANDLORD SODESIRES, A WRIT OF EXECUTION OR OF POSSESSION MAY ISSUE FORTHWITH, WITHOUT ANYPRIOR WRIT OF PROCEEDINGS, WHATSOEVER, AND PROVIDED THAT IF FOR ANY REASONAFTER SUCH ACTION SHALL HAVE BEEN COMMENCED THE SAME SHALL BE DETERMINED ANDTHE POSSESSION OF THE PREMISES HEREBY DEMISED REMAIN IN OR BE RESTORED TOTENANT, LANDLORD SHALL HAVE THE RIGHT UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS,OR UPON THE TERMINATION OF THIS LEASE AS HEREINBEFORE SET FORTH, TO BRING ONEOR MORE ACTION OR ACTIONS AS HEREINBEFORE SET FORTH TO RECOVER POSSESSION OFTHE SAID PREMISES.

 

                                Inany action to confess judgment in ejectment or for rent in arrears, Landlordshall first cause to be filed in such action an affidavit made by it or someoneacting for it setting forth the facts necessary to authorize the entry ofjudgment, of which facts such affidavit shall be conclusive evidence, and if atrue copy of this Lease (and of the truth of the copy such affidavit shall besufficient evidence) be filed in such action, it shall not be necessary to filethe original as a warrant of attorney, any rule of Court, custom or practice tothe contrary notwithstanding.

 

**                                 (INITIAL).  TENANT WAIVER.  TENANT SPECIFICALLY ACKNOWLEDGES THAT TENANTHAS VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY WAIVED CERTAIN DUE PROCESS RIGHTSTO A PREJUDGMENT HEARING BY AGREEING TO THE TERMS OF THE FOREGOING PARAGRAPHSREGARDING CONFESSION OF JUDGMENT.  TENANTFURTHER SPECIFICALLY AGREES THAT IN THE EVENT OF DEFAULT, LANDLORD MAY PURSUEMULTIPLE REMEDIES INCLUDING OBTAINING POSSESSION PURSUANT TO A JUDGMENT BYCONFESSION AND ALSO OBTAINING A MONEY JUDGEMENT FOR PAST DUE AND ACCELERATEDAMOUNTS AND EXECUTING UPON SUCH JUDGMENT. IN SUCH EVENT AND SUBJECT TO THE TERMS SET FORTH HEREIN, LANDLORD SHALLPROVIDE FULL CREDIT TO TENANT FOR ANY MONTHLY CONSIDERATION WHICH LANDLORDRECEIVES FOR THE LEASED PREMISES IN MITIGATION OF ANY OBLIGATION OF TENANT TOLANDLORD FOR THAT MONEY.  FURTHERMORE,TENANT SPECIFICALLY WAIVES ANY CLAIM AGAINST LANDLORD AND LANDLORD’S COUNSELFOR VIOLATION OF TENANT’S CONSTITUTIONAL RIGHTS IN THE EVENT THAT JUDGMENT ISCONFESSED PURSUANT TO THIS LEASE.**

 

(g)           Interest on Damage Amounts.  Any sums payable by Tenant hereunder, whichare not paid after the same shall be due, shall bear interest from that dayuntil paid at the rate of four (4%) percent over the then Prime Rate aspublished daily under the heading “Money Rates” in The Wall Street Journal,unless such rate be usurious as applied to Tenant, in which case the highestpermitted legal rate shall apply (the “Default Rate”).

 

(h)           Landlord’s Statutory Rights.  Landlord shall have all rights and remediesnow or hereafter existing at law or in equity with respect to the enforcementof Tenant’s obligations hereunder and the recovery of the Premises.  No right or remedy herein conferred upon orreserved to Landlord shall be exclusive of any other right or remedy, but shallbe cumulative and in addition to all other rights and remedies given hereunderor now or hereafter existing at law. Landlord shall be entitled to injunctive relief in case of theviolation, or attempted or threatened violation, of any covenant, agreement,condition or provision of this Lease, or to a decree compelling performance ofany covenant, agreement, condition or provision of this Lease.

 

(i)            Remedies Not Limited.  Nothing herein contained shall limit orprejudice the right of Landlord to exercise any or all rights and remediesavailable to Landlord by reason of default or to prove for and obtain inproceedings under any bankruptcy or insolvency laws, an amount equal to themaximum allowed by any law in effect at the time when, and governing theproceedings in which, the damages are to be proved, whether or not the amountbe greater, equal to, or less than the amount of the loss or damage referred toabove.

 

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(j)            No Waiver by Landlord.  No delay or forbearance by Landlord inexercising any right or remedy hereunder, or Landlord’s undertaking orperforming any act or matter which is not expressly required to be undertakenby Landlord shall be construed, respectively, to be a waiver of Landlord’srights or to represent any agreement by Landlord to undertake or perform suchact or matter thereafter.  Waiver byLandlord of any breach by Tenant of any covenant or condition herein contained(which waiver shall be effective only if so expressed in writing by Landlord)or failure by Landlord to exercise any right or remedy in respect of any suchbreach shall not constitute a waiver or relinquishment for the future ofLandlord’s right to have any such covenant or condition duly performed orobserved by Tenant, or of Landlord’s rights arising because of any subsequentbreach of any such covenant or condition nor bar any right or remedy ofLandlord in respect of such breach or any subsequent breach.  Landlord’s receipt and acceptance of anypayment from Tenant which is tendered not in conformity with the provisions ofthis Lease or following an Event of Default (regardless of any endorsement ornotation on any check or any statement in any letter accompanying any payment)shall not operate as an accord and satisfaction or a waiver of the right ofLandlord to recover any payments then owing by Tenant which are not paid infull, or act as a bar to the termination of this Lease and the recovery of thePremises because of Tenant’s previous default.

 

23.           LANDLORD’S LIEN.

 

In addition to any applicable common law or statutorylien, none of which are to be deemed waived by Landlord, Landlord shall have,at all times, and Tenant hereby grants to Landlord, a valid lien and securityinterest to secure payment of all rentals and other sums of money becoming duehereunder from Tenant, and to secure payment of any damages or loss whichLandlord may suffer by reason of the breach by Tenant of any covenant,agreement or condition contained herein, upon all goods, wares, equipment,fixtures, furniture, improvements and other personal property of Tenant whichmay hereafter be situated on the Premises, and all proceeds therefrom, and suchproperty shall not be removed therefrom without the consent of Landlord untilall arrearage in Rent as well as any and all other sums of money then due toLandlord hereunder shall first have been paid and discharged and all thecovenants, agreements and conditions hereof have been fully complied with andperformed by Tenant.  Landlord covenantsand agrees to subordinate the lien granted hereunder to any commercial lenderwhich Tenant grants a security interest. Upon the occurrence of an Event of Default by Tenant, but subject toTenant’s lender rights, if any, after the expiration of all stated notice andcure periods, Landlord may, in addition to any other remedies provided herein,peaceably enter upon the Premises and take possession of any and all goods,wares, equipment, fixtures, furniture, improvements and other personal propertyof Tenant situated on the Premises, without liability for trespass orconversion, and sell the same at public or private sale, with or without havingsuch property at the sale, after giving Tenant reasonable notice of time andplace of any public sale or of the time after which any private sale is to bemade, at which sale Landlord or its assigns may purchase unless otherwiseprohibited by law.  Unless otherwiseprovided by law, and without intending to exclude any other manner of givingTenant reasonable notice, the requirement of reasonable notice shall be met ifsuch notice is given in the manner prescribed in Article 28 of thisLease at least five (5) days before the time of sale.  The proceeds from any such disposition, lessall expenses connected with the taking of possession, holding and selling ofthe property (including reasonable attorney’s fees and other expenses), shallbe applied as a credit against the indebtedness secured by the securityinterest granted in this Article 23. Any surplus shall be paid to Tenant or as otherwise required by law; andTenant shall pay any deficiencies forthwith. Upon request by Landlord, Tenant agrees to execute and deliver toLandlord a financing statement in form sufficient to perfect the securityinterest of Landlord in the aforementioned property and proceeds thereof underthe provisions of the Uniform Commercial Code in force in the Commonwealth ofPennsylvania.  Notwithstanding theforegoing, the parties acknowledge and agree that Tenant’s lender may havesuperior rights to the property noted herein. After notice by Landlord in accordance with Article 28 hereof,Tenant shall use its best efforts to obtain, within forty-five (45) days ofsuch notice, a waiver of all such rights from its lender in this regard, and,failing to obtain such waiver, that Tenant shall use its best efforts to obtainfrom such lender, the right to grant a subordinated lien to Landlord in suchgoods, second only to the lien of such lender.

 

24.           LANDLORD’S REPRESENTATIONS ANDWARRANTIES.

 

                                Landlordrepresents and warrants to Tenant that: (a) Landlord is the owner of the Building and the 

 

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Project; (b) Landlord has the authority to enter into this Lease and(c) the person executing this Lease is duly authorized to execute and deliverthis Lease on behalf of Landlord.

 

25.           SURRENDER.

 

                Tenantshall, at the expiration of the Term, promptly quit and surrender the Premisesin good order and condition and in conformity with the applicable provisions ofthis Lease, excepting only reasonable wear and tear and damage by fire or otherinsured casualty.  Tenant shall have noright to hold over beyond the expiration of the Term and in the event Tenantshall fail to deliver possession of the Premises as herein provided, suchoccupancy shall not be construed to effect or constitute other than a tenancyat sufferance.  During any period ofoccupancy  beyond the expiration of theTerm the amount of rent owed to Landlord by Tenant shall automatically becometwo hundred percent (200%) the sum of the Rent as those sums are at that timecalculated under the provisions of the Lease. If Tenant fails to surrender the space within thirty (30) days of thetermination date, Landlord may elect to automatically extend the Term for anadditional month or additional year, at Landlord’s option, with a Rent of twohundred percent (200%) the sum of the Rent as those sums are at that timecalculated under the provisions of the Lease. The acceptance of rent by Landlord or the failure or delay of Landlordin notifying or evicting Tenant following the expiration or sooner terminationof the Term shall not create any tenancy rights in Tenant and any such paymentsby Tenant may be applied by Landlord against its costs and expenses, includingattorney’s fees, incurred by Landlord as a result of such holdover.

 

26.           RULES AND REGULATIONS.

 

                                Tenantagrees that at all times during the terms of this Lease (as same may beextended) it, its employees, agents, invitees and licenses shall comply withall rules and regulations as Landlord may from time to time promulgate providedthey do not increase the financial burdens of Tenant or unreasonably restrictTenant’s rights under this Lease.  Tenant’sright to dispute the reasonableness of any changes in or additions to the Rulesand Regulations shall be deemed waived unless asserted to Landlord within ten(10) business days after Landlord shall have given Tenant written notice of anysuch adoption or change.  In case of anyconflict or inconsistency between the provisions of this Lease and any Rulesand Regulations, the provisions of this Lease shall control.  Landlord shall have no duty or obligation toenforce any Rule and Regulation, or any term, covenant or condition of anyother lease, against any other tenant, and Landlord’s failure or refusal toenforce any Rule or Regulation or any term, covenant of condition of any otherlease against any other tenant shall be without liability of Landlord toTenant.  However, if Landlord doesenforce Rules or Regulations, Landlord shall endeavor to enforce same equallyin a non-discriminatory manner.

 

27.           GOVERNMENTAL REGULATIONS.

 

(a)   Tenant shall, in the use andoccupancy of the Premises and the conduct of Tenant’s business or professiontherein, at all times comply with all applicable laws, ordinances, orders,notices, rules and regulations of the federal, state and municipal governments,or any of their departments and the regulations of the insurers of thePremises, Building and/or Project.

 

(b)   Without limiting thegenerality of the foregoing, Tenant shall (i) obtain, at Tenant’s expense,before engaging in Tenant’s business or profession within the Premises, allnecessary licenses and permits including (but not limited to) state and localbusiness licenses or permits, and (ii) remain in compliance with and keep infull force and effect at all times all licenses, consents and permits necessaryfor the lawful conduct of Tenant’s business or profession at the Premises.  Tenant shall pay all personal property taxes,income taxes and other taxes, assessments, duties, impositions and similarcharges which are or may be assessed, levied or imposed upon Tenant and which,if not paid, could be liened against the Premises or against Tenant’s propertytherein or against Tenant’s leasehold estate.

 

(c)   Landlord shall be responsible for compliancewith Title III of the Americans with Disabilities Act of l990, 42 U.S.C. ‘12181etseq. and its regulations, (collectively, the “ADA”) (i) as tothe design and 

 

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construction of exterior common areas (e.g.sidewalks and parking areas) and (ii) with respect to the initial design andconstruction of the Premises.  Except asset forth above in the initial sentence hereto, Tenant shall be responsible forcompliance with the ADA in all other respects concerning the use and occupancyof the Premises, which compliance shall include, without limitation (i)provision for full and equal enjoyment of the goods, services, facilities,privileges, advantages or accommodations of the Premises as contemplated by andto the extent required by the ADA, (ii) compliance relating to requirementsunder the ADA or amendments thereto arising after the date of this Lease and(iii) compliance relating to the design, layout, renovation, redecorating,refurbishment, alteration, or improvement to the Premises made or requested byTenant at any time following the Commencement Date.

 

28.           NOTICES.

 

(a)   Wherever in this Lease it shall be requiredor permitted that notice or demand be given or served by either party to thisLease to or on the other party, such notice or demand shall be deemed to havebeen duly given or served if in writing and either: (i) personally served; (ii)delivered by pre-paid nationally recognized overnight courier service (e.g.Federal Express) with evidence of receipt required for delivery; (iii)forwarded by Registered or Certified mail, return receipt requested, postageprepaid; (iv) facsimile with a copy mailed by first class United States mail or(v) e-mailed with evidence of receipt and delivery of a copy of the notice byfirst class mail; in all such cases addressed to the parties at the addressesset forth in Article 1(k) hereof. Each such notice shall be deemed to have been given to or served uponthe party to which addressed on the date the same is delivered or delivery isrefused.  Either party hereto may changeits address to which said notice shall be delivered or mailed by giving writtennotice of such change to the other party hereto, as herein provided.

 

29.           BROKERS.

 

                Landlordand Tenant each represents and warrants to the other that such party has had nodealings, negotiations or consultations with respect to the Premises or thistransaction with any broker or finder; and that otherwise no broker or findercalled the Premises to Tenant’s attention for lease or took any part in anydealings, negotiations or consultations with respect to the Premises or thisLease.  Each party agrees to indemnifyand hold the other harmless from and against all liability, cost and expense,including attorney’s fees and court costs, arising out of any misrepresentationor breach of warranty under this Article.

 

30.           CHANGE OF BUILDING/PROJECT NAME.

 

                                Landlordreserves the right at any time and from time to time to change the name bywhich the Building and/or Project is designated.

 

31.           LANDLORD’S LIABILITY.

 

                                Landlord’sobligations hereunder shall be binding upon Landlord only for the period oftime that Landlord is in ownership of the Building; and, upon termination ofthat ownership, Tenant, except as to any obligations which are then due andowing, shall look solely to Landlord’s successor in interest in the Buildingfor the satisfaction of each and every obligation of Landlord hereunder.  Landlord shall have no personal liabilityunder any of the terms, conditions or covenants of this Lease and Tenant shalllook solely to the equity of Landlord in the Building of which the Premisesform a part for the satisfaction of any claim, remedy or cause of actionaccruing to Tenant as a result of the breach of any section of this Lease byLandlord.  In addition to the foregoing,no recourse shall be had for an obligation of Landlord hereunder, or for anyclaim based thereon or otherwise in respect thereof, against any past, presentor future trustee, member, partner, shareholder, officer, director, partner, agentor employee of Landlord, whether by virtue of any statute or rule of law, or bythe enforcement of any assessment or penalty or otherwise, all such otherliability being expressly waived and released by Tenant with respect to theabove-named individuals and entities.

 

32.           AUTHORITY.

 

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                                Tenantrepresents and warrants that (a) Tenant is duly organized, validly existing andlegally authorized to do business in the Commonwealth of Pennsylvania, and (b)the persons executing this Lease are duly authorized to execute and deliverthis Lease on behalf of Tenant.

 

33.           NOOFFER.

 

                                Thesubmission of the Lease by Landlord to Tenant for examination does notconstitute a reservation of or option for the Premises or of any other spacewithin the Building or in other buildings owned or managed by Landlord or itsaffiliates.  This Lease shall becomeeffective as a Lease only upon the execution and legal delivery thereof by bothparties hereto.

 

34.           RENEWAL.

 

                                ProvidedTenant is neither in default at the time of exercise nor has Tenant ever beenin default (irrespective of the fact that Tenant cured such default) of anymonetary obligations under this Lease more than twice during the Term and suchmonetary default aggregates in excess of $60,000, and Tenant is fully occupyingthe Premises and the Lease is in full force and effect, Tenant shall have theright to renew this Lease for one (1) term of five (5) years each beyond theend of the initial Term (each, a “Renewal Term”).  Tenant shall furnish written notice of intentto renew one (1) year prior to the expiration of the applicable Term, failingwhich, such renewal right shall be deemed waived; time being of the essence.   The terms and conditions of this Leaseduring each Renewal Term shall remain unchanged except that the annual FixedRent for each Renewal Term shall be the greater of (i) the Fixed Rent for theterm expiring, and (ii) Fair Market Rent (as such term is hereinafter defined),with in any event, annual increases.  Allfactors regarding Additional Rent shall remain unchanged, and no Tenantallowance shall be included in the absence of further agreement by theparties.  Anything herein contained tothe contrary notwithstanding, Tenant shall have no right to renew the termhereof other than or beyond the one (1) consecutive five (5) year termhereinabove described.  It shall be acondition of each such Renewal Term that Landlord and Tenant shall haveexecuted, not less than six (6) months prior to the expiration of the thenexpiring term hereof, an appropriate amendment to this Lease, in form andcontent satisfactory to each of them, memorializing the extension of the termhereof for the next ensuing Renewal Term.

 

For purposes of this Lease, “Fair Market Rent” shall mean the base rent,for comparable space, net of all free or reduced rent periods, work letters,cash allowances, fit-out periods and other tenant inducement concessionshowever denominated except as hereinafter provided.  In determining the Fair Market Rent,Landlord, Tenant and any appraiser shall take into account applicablemeasurement and the loss factors, applicable lengths of lease term, differencesin size of the space demised, the location of the Building and comparablebuildings, amenities in the Building and comparable buildings, the ages of theBuilding and comparable buildings, differences in base years or stop amountsfor operating expenses and tax escalations and other factors normally takeninto account in determining Fair Market Rent.  The Fair Market Rent shall reflect the levelof improvement made or to be made by Landlord to the space under thisLease.  If Landlord and Tenant cannotagree on the Fair Market Rent, the Fair Market Rent shall be established by thefollowing procedure: (1) Tenant and Landlord shall agree on a single MAIcertified appraiser who shall have a minimum of ten (10) years experience inreal estate leasing in the market in which the Premises is located, (2)Landlord and Tenant shall each notify the other (but not the appraiser), of itsdetermination of such Fair Market Rent and the reasons therefor, (3) during thenext seven (7) days both Landlord and Tenant shall prepare a written critiqueof the other’s determination and shall deliver it to the other party, (4) onthe tenth (10th) day following delivery of the critiques to each other,Landlord’s and Tenant’s determinations and critiques (as originally submittedto the other party, with no modifications whatsoever) shall be submitted to theappraiser, who shall decide whether Landlord’s or Tenant’s determination ofFair Market Rent is more correct.  Thedeterminations so chosen shall be the Fair Market Rent.  The appraiser shall not be empowered tochoose any number other than the Landlord’s or Tenant’s.  The fees of the appraiser shall be paid bythe non-prevailing party.

 

35.           INTENTIONALLY OMITTED.

 

36.           TENANT FINANCIAL INFORMATION.

 

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                                Anytime and from time to time during the Term (but not more than once during anytwelve month period unless a default has occurred under this Lease or Landlordhas a reasonable basis to suspect that Tenant has suffered a material adversechange in its financial position) upon not less than thirty (30) days priorwritten request from Landlord, Tenant shall deliver to Landlord: (i) a current,accurate, complete and detailed balance sheet of Tenant (dated no more thanthirty (30) days prior to such delivery), a profit and loss statement, a cashflow summary and all relevant accounting footnotes, all prepared in accordancewith generally accepted accounting principles consistently applied andcertified by the Chief Financial Officer of Tenant to be a fair and truepresentation of Tenant’s current financial position; and (ii) a current, accurate,complete and detailed financial statements of Tenant audited by an independentcertified public accountant for the last applicable calendar year.  Tenant agrees that its failure to strictlycomply with this Article 38 shall constitute a material Default byTenant under this Lease.  Landlord shallkeep all information provided hereunder strictly confidential.

 

37.           MISCELLANEOUS PROVISIONS.

 

(a)           Successors.  The respective rights and obligationsprovided in this Lease shall bind and inure to the benefit of the partieshereto, their successors and assigns; provided, however, that no rights shallinure to the benefit of any successors or assigns of Tenant unless Landlord’swritten consent for the transfer to such successor and/or assignee has firstbeen obtained as provided in Article 12 hereof.

 

(b)           Governing Law.  This Lease shall be construed, governed andenforced in accordance with the laws of the Commonwealth of Pennsylvania,without regard to principles relating to conflicts of law.

 

(c)           Severability.  If any provisions of this Lease shall be heldto be invalid, void or unenforceable, the remaining provisions hereof shall inno way be affected or impaired and such remaining provisions shall remain infull force and effect.

 

(d)           Captions.  Marginal captions, titles or exhibits andriders and the table of contents in this Lease are for convenience andreference only, and are in no way to be construed as defining, limiting ormodifying the scope or intent of the various provisions of this Lease.

 

(e)           Gender.  As used in this Lease, the word “person”shall mean and include, where appropriate, an individual, corporation,partnership or other entity; the plural shall be substituted for the singular,and the singular for the plural, where appropriate; and the words of any gendershall mean to include any other gender.

 

(f)            Entire Agreement.  This Lease, including the Exhibits and anyRiders hereto (which are hereby incorporated by this reference, except that inthe event of any conflict between the printed portions of this Lease and anyExhibits or Riders, the term of such Exhibits or Riders shall control),supersedes any prior discussions, proposals, negotiations and discussionsbetween the parties and the Lease contains all the agreements, conditions, understandings,representations and warranties made between the parties hereto with respect tothe subject matter hereof, and may not be modified orally or in any mannerother than by an agreement in writing signed by both parties hereto or theirrespective successors in interest. Without in any way limiting the generality of the foregoing, this Leasecan only be extended pursuant to the terms hereof, and in Tenant’s case, withthe terms hereof, with the due exercise of an option (if any) contained hereinpursuant to a written agreement signed by both Landlord and Tenant specificallyextending the term.  No negotiations,correspondence by Landlord or offers to extend the term shall be deemed anextension of the termination date for any period whatsoever.

 

(g)           Counterparts.  This Lease may be executed in any number ofcounterparts, each of which when taken together shall be deemed to be one andthe same instrument.

 

(h)           Telefax Signatures.  The parties acknowledge and agree thatnotwithstanding any law or presumption to the contrary a telefaxed signature ofeither party whether upon this Lease or any related document 

 

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shall be deemedvalid and binding and admissible by either party against the other as if samewere an original ink signature.

 

(i)            Calculation of Time.  In computing any period of time prescribed orallowed by any provision of this Lease, the day of the act, event or defaultfrom which the designated period of time begins to run shall not be included.  The last day of the period so computed shallbe included, unless it is a Saturday, Sunday or a legal holiday, in which eventthe period runs until the end of the next day which is not a Saturday, Sunday,or legal holiday.  Unless otherwiseprovided herein, all Notices and other periods expire as of 5:00 p.m. (localtime in Newtown Square, Pennsylvania) on the last day of the Notice orother period.

 

(j)            No Merger.  There shall be no merger of this Lease or ofthe leasehold estate hereby created with the fee estate in the Premises or anypart thereof by reason of the fact that the same person, firm, corporation, orother legal entity may acquire or hold, directly or indirectly, this Lease ofthe leasehold estate and the fee estate in the Premises or any interest in suchfee estate, without the prior written consent of Landlord’s mortgagee.

 

(k)           Time of the Essence.  **TIME IS OF THE ESSENCE INALL PROVISIONS OF THIS LEASE, INCLUDING ALL NOTICE PROVISIONS TO BE PERFORMEDBY OR ON BEHALF OF TENANT.**

 

(l)            Recordation of Lease.  Tenant shall not record this Lease withoutthe written consent of

Landlord.

 

(m)          Accord and Satisfaction.  No payment by Tenant or receipt by Landlordof a lesser amount than any payment of Fixed Rent or Additional Rent hereinstipulated shall be deemed to be other than on account of the earlieststipulated Fixed Rent or Additional Rent due and payable hereunder, nor shallany endorsement or statement or any check or any letter accompanying any checkor payment as Rent be deemed an accord and satisfaction.  Landlord may accept such check or paymentwithout prejudice to Landlord’s right to recover the balance of such Rent orpursue any other right or remedy provided for in this Lease, at law or inequity.

 

(n)           No Partnership.  Landlord does not, in any way or for anypurpose, become a partner of Tenant in the conduct of its business, orotherwise, or joint venturer or a member of a joint enterprise withTenant.  This Lease establishes arelationship solely of that of a landlord and tenant.

 

(o)           Guaranty.  In order to induce Landlord to execute thisLease, Tenant agrees that Landlord may, at its option, at the time of theexecution of this Lease or at any time during the Term, require a guaranty ofthe obligations of the Tenant hereunder by a person, firm, corporation, orother entity other than Tenant but with a business interest in Tenant,acceptable to Landlord, which guaranty shall be in a form satisfactory toLandlord.

 

(p)           No Presumption Against Drafter.  Landlord and Tenant understand, agree, andacknowledge that:  (i) this Lease hasbeen freely negotiated by both parties; and (ii) that, in the event of anycontroversy, dispute, or contest over the meaning, interpretation, validity, orenforceability of this Lease, or any of its terms or conditions, there shall beno inference, presumption, or conclusion drawn whatsoever against either partyby virtue of that party having drafted this Lease or any portion thereof.

 

(q)           Force Majeure.     If byreason of strikes or other labor disputes, fire or other casualty (orreasonable delays in adjustment of insurance), accidents, orders or regulationsof any Federal, State, County or Municipal authority, or any other cause beyondLandlord’s reasonable control, Landlord is unable to furnish or is delayed infurnishing any utility or service required to be furnished by Landlord underthe provisions of this Lease or is unable to perform or make or is delayed inperforming or making any installations, decorations, repairs, alterations,additions or improvements, or is unable to fulfill or is delayed in fulfillingany of Landlord’s other obligations under this Lease, no such inability ordelay shall constitute an actual or constructive eviction, in whole or in part,or entitle Tenant to any abatement or diminution of Rent, except as provided insection 18(e) hereof, or 

 

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relieve Tenantfrom any of its other obligations under this Lease, or impose any liabilityupon Landlord or its agents, by reason of inconvenience or annoyance to Tenant,or injury to or interruption of Tenant’s business, or otherwise.

38.           WAIVER OF TRIAL BY JURY.

 

                                LANDLORDAND TENANT WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASEDUPON, OR RELATED TO, THE SUBJECT MATTER OF THIS LEASE.  THIS WAIVER IS KNOWINGLY, INTENTIONALLY, ANDVOLUNTARILY MADE BY TENANT AND TENANT ACKNOWLEDGES THAT NEITHER LANDLORD NORANY PERSON ACTING ON BEHALF OF LANDLORD HAS MADE ANY REPRESENTATIONS OF FACT TOINDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITSEFFECT.  TENANT FURTHER ACKNOWLEDGES THATIT HAS BEEN REPRESENTED (OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED) IN THESIGNING OF THIS LEASE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGALCOUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TODISCUSS THIS WAIVER WITH COUNSEL.  TENANTFURTHER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THE MEANING ANDRAMIFICATIONS OF THIS WAIVER PROVISION AND AS EVIDENCE OF SAME HAS EXECUTEDTHIS LEASE.

 

39.           CONSENT TO JURISDICTION.

 

                                Tenanthereby consents to the exclusive jurisdiction of the state courts located inMontgomery, Delaware and Philadelphia County and to the federal courts locatedin the Eastern District of Pennsylvania.

 

IN WITNESSWHEREOF, the parties hereto have executed this Lease the day and year firstabove written.

 

 
| LANDLORD:                                               | TENANT:                                                               |
|---------------------------------------------------------|-----------------------------------------------------------------------|
|                                                    |                                                                  |
| 353  ASSOCIATES                                         | GMH CAPITAL PARTNERS COMMERCIAL REALTYSERVICES, LP                    |
|                                                    |                                                                  |
| By:  GH 353 Associates, Inc., its general  partner | By:  GH CP  Commercial Realty Services, LLC, its general partner |
|                                                    |                                                                  |
| By:  /s/ Joseph M. Macchione                       | By:  /s/ Bruce Robinson                                          |
| Name:  Joseph M. Macchione                         | Name:  Bruce Robinson                                                 |
| Title:   Vice President                       | Title:   Vice President                                     |
|                                                    |                                                                  |
|                                                    | GMH CAPITAL PARTNERS ASSETSERVICES, LP                                |
|                                                    |                                                                  |
|                                                    | By:  GH CP  Asset Services, LLC, its general partner             |
|                                                    |                                                                  |
|                                                    | By:  /s/  Bruce Robinson                                         |
|                                                    | Name: Bruce Robinson                                                  |
|                                                    | Title:   Vice President                                     |

 

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|   | GMH PHILADELPHIA  BARRAGE, LLC    |
|--------|-----------------------------------|
|   |                              |
|   | By:  /s/ Gary M. Holloway    |
|   | Name: Gary M. Holloway            |
|   | Title:   Sole Member    |
|   |                              |
|   | GMH CONSTRUCTION  COMPANY, INC.   |
|   |                              |
|   | By:  /s/  Bruce Robinson     |
|   | Name: Bruce Robinson              |
|   | Title:   Vice President |
|   |                              |
|   | GMH ASSOCIATES, INC.              |
|   |                              |
|   | By:  /s/  Bruce Robinson     |
|   | Name: Bruce Robinson              |
|   | Title:   Vice President |

 

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