EXHIBIT 10.23
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AMENDED AND RESTATED LEASE AGREEMENT
Between
ALLEGHENY CAPITAL GROWTH LIMITED PARTNERSHIP
and
ACTION INDUSTRIES, INC.
ACTION INDUSTRIAL PARK
CHESWICK, PENNSYLVANIA
AMENDED AND RESTATED LEASE AGREEMENT
This Amended and Restated Lease Agreement ("Lease") is
made this 1st day of October, 1996, by and between:
ALLEGHENY CAPITAL GROWTH LIMITED PARTNERSHIP, a Delaware
limited partnership formerly known as Allegheny Industrial
Park, L.P., with its principal offices located at ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Landlord"),
AND
ACTION INDUSTRIES, INC., a Pennsylvania corporation with its
principal offices located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Tenant").
RECITALS
A. Landlord and Tenant are currently parties to a Lease
Agreement dated June 29, 1990, as amended by a First Amendment
to Lease Agreement dated August 14, 1990 and a Restated Second
Amendment to Lease Agreement dated February 4, 1991 (as so
amended, the "Existing Lease").
B. Pursuant to the Existing Lease, Tenant leases a
portion of certain real property located in the Action
Industrial Park, Cheswick, Pennsylvania and described on
Exhibit A hereto (the "Land") and the buildings located
thereon (the "Buildings" and, together with the Land, the
"Property"), which portion consists of 57,925 square feet of
office space (the "Offices") shown on Exhibit C-1 attached
hereto and 522,215 square feet of warehouse space (the
"Warehouse"), as depicted on the site plan attached hereto as
Exhibit B (the "Site Plan").
C. Landlord and Tenant now desire to amend and restate
the Existing Lease effective as of the Effective Date (as said
term is defined in Article 6 hereof) in the manner hereinafter
set forth.
ARTICLE 1 - AGREEMENT TO LEASE
In consideration of the covenants and agreements set
forth herein, and intending to be legally bound, subject to
Article 7 hereof, Landlord (a) leases to Tenant and Tenant
leases from Landlord the Offices and (b) grants to Tenant (i)
the exclusive right to use the driveways and walkways located
in the area (the "Action Outside Area") shown on the Site Plan
as the Action Outside Area for roadway and walkway purposes
subject to the rights reserved to Landlord in Section 2.4 and
Article 7 hereof and (ii) the non-exclusive right to use in
common with others entitled thereto the driveways and
walkways located in the area (the "Common Outside Area") shown
on the Site Plan as the Common Outside Area, for roadway and
walkway purposes, in each case upon the terms and subject to
the conditions set forth herein, and further subject to all
encumbrances and other matters of record existing as of the
original date of the Existing Lease or incurred since such
date due to the act or omission of, or with the consent of,
Tenant. In no event shall use of the driveways and walkways
located in the Action Outside Area by other tenants or
subtenants in the Property nor by their employees,
contractors, agents or invitees constitute a breach of the
foregoing provisions of this Lease nor shall Landlord have any
responsibility or liability to Tenant to assure that other
tenants, subtenants or their employees, contractors, agents or
invitees do no make use of the Action Outside Area. Tenant
may implement reasonable signage and take reasonable steps to
prevent other tenants from using the driveways, walkways and
parking spaces located in the Action Outside Area, subject,
however, to the rights reserved for the benefit of Landlord
and other tenants set forth in Section 2.4.
ARTICLE 2 - LEASE OF SPACE
2.1 Leased Premises. The Offices leased by Tenant
hereunder are marked with hash marks on Floor Plan 1 attached
hereto as part of Exhibit C-1. The Offices, the Action
Outside Area and the Common Outside Area are accepted in "as-is" condition.
The terms "Leased Premises" or "Premises", as used in this Lease, shall
mean the Offices.
2.2 Term. The term of this Lease (the "Lease Term")
shall commence on the Effective Date (as said term is defined
in Article 6 hereof) and shall end at 11:59 p.m. on the date
which is one (1) day prior to the fifth (5th) anniversary of
the Effective Date, unless sooner terminated under the
provisions of this Lease. The Effective Date shall also be
the commencement date (the "Commencement Date") under this
Lease.
2.3 Rent. Beginning on the Commencement Date and
continuing throughout the Lease Term, Tenant agrees to pay to
Landlord annual rent ("Annual Rent") for the Premises in an
amount equal to One Hundred Thousand and No/100ths
($100,000.00) Dollars. Annual Rent shall be payable in
monthly installments, in advance and without demand,
deduction, setoff or counterclaim except as otherwise provided
in this Lease, on the first business day of each calendar
month throughout the Lease Term.
2.4 Parking. The parking spaces (the "Action Parking
Area") located in the Action Outside Area are (until exercise
of the Recapture Right under Article 7 hereof) hereby declared
to be for the exclusive use of Tenant's employees, guests,
invitees and sublessees throughout the Lease Term, subject to
any claims, takings, rules, laws or regulations of any
governmental agencies or divisions. After exercise of the
Recapture Right, the parking spaces in the Action Parking Area
shall be governed by Article 7 and the rights of Landlord
under Article 7 and, in any event, Tenant's rights in the
Parking Spaces, shall, unless Landlord otherwise elects, be
non-exclusive and subject to limitation as to the number of
paces available to Tenant as provided in Article 7. Landlord
may temporarily close all or any portion of the Action Outside
Area for the purpose, of making repairs, performing necessary
maintenance, constructing improvements or complying with
governmental requirements (but nothing contained herein shall
be deemed to imply that Landlord has any obligation to repair,
maintain, improve or comply with governmental requirements),
in which event Landlord shall provide an equivalent number of
substitute parking spaces on the Land as close to the Offices
as possible for the temporary period during which such
repairs, maintenance or construction are being performed or
such compliance is required, to the extent such spaces are
available. Landlord reserves a right around the perimeter of
the Action Parking area for the purpose of and to the extent
necessary to provide vehicular ingress and egress to other
portions of the Property for Landlord and for any other
tenants on the Property.
ARTICLE 3 - ASSIGNMENT AND SUBLETTING
3.1 Tenant Subletting and Assignment. Tenant may sublet
all or any part of the Leased Premises in each case only for
the Permitted Uses and, in each case, only with the prior
written consent of Landlord which consent will not be
unreasonably withheld. Such sublease shall not grant any
greater rights than are available to Tenant under this Lease.
Tenant will notify Landlord promptly of any modifications to
such subleases and shall not modify any such subleases without
the prior written consent of the Landlord which consent shall
not be unreasonably withheld. As to any such space sublet,
Tenant shall remain liable for the performance of all terms
and conditions of this Lease which apply to the premises
sublet. Tenant may not assign this Lease, by operation of law
or otherwise, without the consent of Landlord, which consent
shall not be unreasonably withheld. An assignment of this
Lease may be only for use of the Premises for the Permitted
Uses. Except as otherwise expressly provided in Section 3.2,
no assignment or subletting shall relieve Tenant from its
obligations hereunder and Tenant shall remain fully and
primarily liable therefor. If this Lease be assigned,
Landlord may, whether or not it has consented to any such
assignment, at any time and from time to time collect rent and
other charges from the assignee, subtenant or occupant, and
apply the net amount collected to the rent and other charges
herein reserved. If the Premises, or any part thereof, is
sublet or occupied by anyone other than Tenant, Landlord may,
whether or not it has consented to such subletting or
occupancy, at any time, and from time to time, after a Default
of Tenant has occurred and so long as such Default of Tenant
is continuing, collect rent and other charges herein reserved
from the subtenant or occupant and apply the net amount
collected to the rent and other charges reserved herein. No
such assignment, subletting, occupancy or collection shall be
deemed a waiver of any breach of this Section 3.1, or the
acceptance of the assignee, subtenant or occupant as a tenant
or (except as otherwise expressly provided in Section 3.2) a
release of Tenant from the further performance by Tenant of
its obligations hereunder. The consent by Landlord to an
assignment or subletting shall in no way be construed to
relieve Tenant or any successor from obtaining the express
consent in writing of Landlord to any further assignment or
subletting.
3.2 Release of Original Tenant in the Case of
Certain Assignments of this Lease . If the original
Tenant shall assign this Lease to an assignee (the
"Assignee") approved in writing by Landlord in accordance
with Section 3.1, such assignment shall not relieve the
original Tenant from its obligations under this Lease and
the original Tenant shall remain fully and primarily
liable therefor notwithstanding such assignment, unless
each of the following conditions have been satisfied:
(a) The identity and creditworthiness of the
Assignee shall have been approved in writing by each
of the Landlord, the holder of the first mortgage on
the Property, the tenant (the "EWI Tenant") under the
EWI Lease (as said term is hereinafter defined) and
Glenshaw Glass Company, Inc. ("Glenshaw") which
approval may be given or withheld by any of such
parties, in their sole and complete discretion;
(b) The Assignee shall have assumed all of
Tenant's obligations under the Lease under a direct
agreement (the "Assumption Agreement") with Landlord
and shall agree to observe, perform and comply with
the Lease directly to and for the benefit of
Landlord, all pursuant to an agreement in form and
substance reasonably satisfactory to the Landlord,
the holder of the first mortgage on the Property, the
EWI Tenant and Glenshaw; and
(c) The original Tenant shall have released
Landlord of any and all claims, liabilities and
obligations which Landlord may have under or on
account of this Lease with respect to matters first
arising from and after the effective date of any such
assignment of this Lease (and, for this purpose,
Tenant agrees that the effective date of such
assignment and the effective date of the Assumption
Agreement shall be identical), all pursuant to an
agreement (the "Tenant's Release") in form and
substance reasonably satisfactory to the Landlord;
and
(d) Landlord shall have executed and delivered
to Tenant a release (the "Landlord's Release") with
respect to matters first arising under the Lease from
and after the effective date of the Assumption
Agreement, all pursuant to an agreement in form and
substance reasonably satisfactory to Landlord. In no
event shall the Landlord's Release release Tenant of
any obligations accruing with respect to any matters
occurring prior to the effective date of such Landlord's
Release;
(e) In Tenant's request for approval of any
such Landlord's Release, the original Tenant shall
specifically request that it be released of
obligations under the Lease in accordance with this
Section 3.2 and furnishes such financial and other
information concerning the Assignee as Landlord, the
holder of the first mortgage on the Property, the EWI
Tenant and Glenshaw may require in their sole
discretion;
(f) No Default of Tenant shall have occurred
and be continuing under this Lease.
Without limiting the generality of the foregoing, the
Landlord's Release and the Tenant's Release shall not
release any claims which either Landlord or Tenant may
have against the other under Sections 4.5 or 4.16 of this
Lease with respect to matters which have occurred prior to
the effective date of such assignment or Assumption
Agreement notwithstanding that a claim for indemnification
thereunder may be made subsequent to the giving of any
such releases by Landlord and Tenant.
All of the provisions of this Section 3.2 are solely for
the benefit of the original Tenant, namely, Action
Industries, Inc. and shall not be for the benefit of any
assignee or sublessee thereof. All reasonable out-of-pocket
costs and expenses incurred by Landlord in
connection with its review and approval of any of the
matters referred to in this Section 3.2 shall be borne by
Tenant, including, without limitation, all reasonable
legal fees incurred by Landlord in connection with any of
the matters referred to in this Section 3.2.
ARTICLE 4 - GENERAL PROVISIONS
4.1 Name of Property. Landlord shall have the right
to, at its option, continue to name the Property "Action
Industrial Park" or to change the name of the Property to such
other name as Landlord may elect, in each case, without any
responsibility or liability to Tenant of any kind or nature.
If Landlord elects to change the name of the Property from
Action Industrial Park, it will not disparage the name
"Action" in any signs which depict the new name for the
Property.
4.2 [Intentionally Omitted]
4.3 Lease Year. A Lease Year shall be the period which
commences on the Commencement Date or each anniversary of such
date and terminates 12 months thereafter.
4.4 Provisions for Payment of Rent. Tenant shall pay all
rent and other payments due to Landlord under this Lease at
the address of its principal offices set forth above, or as
Landlord may otherwise from time to time direct by written
notice to Tenant. Any installment of Annual Rent not paid by
Tenant on or before the Late Payment Date (as said term is
hereinafter defined) will be subject to a late penalty of 5%
of the amount due. As used herein, the term "Late Payment
Date" shall mean the date which is the first to occur of (a)
ten (10) days after the date when such rent or other payment
is due under this Lease, or (b) a time period which is two (2)
days less than the late payment time period applicable to
monthly mortgage payments under any first mortgage from time
to time encumbering the Property. Upon request by Tenant,
from time to time, Landlord shall advise Tenant of the date
upon which a late payment penalty would be payable under the
first mortgage on the Property.
4.5 Permitted Use. Landlord covenants that, subject to
restrictions of record and governmental laws or regulations,
Tenant may use the Leased Premises for office space, showroom
space and related storage space and other related purposes in
connection with the conduct of its existing business and
except, further, in no event may the Leased Premises be used
as a facility for the storage or manufacture of Hazardous
Materials (as said term is hereinafter defined) or for the use
of Hazardous Materials. Tenant agrees not to use, permit or
suffer the use of the Leased Premises for any other purpose
without the consent of Landlord, which consent shall not be
unreasonably withheld. Tenant shall observe and comply with
all applicable governmental laws, statutes, ordinances, rules
and regulations governing Tenant's use of the Property,
including but not limited to all laws, regulations and
ordinances of local, state or federal agencies pertaining to
air and water quality, hazardous materials, waste disposal,
air emissions, general environmental record keeping and
reporting and zoning. If Tenant breaches the obligations
stated herein, which obligations Tenant does not remedy, or if
contamination of the Property occurs for which Tenant, or any
of Tenant's subtenants, licensees or invitees is legally
liable in damages, then Tenant shall indemnify, defend, and
hold Landlord and its officers, directors, and employees
harmless from, all claims, judgments, damages, penalties,
fines, liens, costs, liabilities and losses which arise during
or after the Lease Term as a result of such breach or
contamination. Tenant shall notify Landlord in the event of
material contamination of the Property by Tenant not remedied
by Tenant within 90 days or if Tenant receives notice from
any governmental authority or private party of any claim,
proceeding, litigation, order or directive regarding
environmental matters referenced herein. Tenant shall not
install underground storage tanks on or under the Property
without the consent of Landlord. In the event any electrical
transformer installed or caused to be installed by Tenant on
the Property contains 50 parts per million or greater of
polychlorinated biphenyls ("PCBs"), Tenant shall be
responsible, financially and otherwise, for the proper use and
disposal of such transformers in accordance with all
applicable local, state or federal regulations governing such
transformers. If, after the date hereof, the Property becomes
contaminated by Hazardous Materials (as said term is
hereinafter defined) for which Landlord is legally liable in
damages (exclusive of any contamination or Hazardous Materials
for which Tenant or any assignee, sublessee, successor, assign
or licensee of Tenant may be responsible), Landlord shall
indemnify, defend and hold the original Tenant and its
officers, directors and employees harmless from all claims,
judgments, damages, penalties, fines, liens, costs,
liabilities and losses arising during or after the Term of
this Lease. The provisions of the indemnity contained in the
preceding sentence shall be for the benefit of the original
Tenant only, namely, Action Industries, Inc., and shall not
benefit any assignee, transferee or sublessee thereof. Tenant
represents and warrants to Landlord that there are no
underground storage or other tanks at the Property and that
removal of any underground storage or other tanks was
completed by Tenant in compliance with all applicable laws,
ordinances, rules and regulations. The term "Hazardous
Materials" shall include, without limitation, any material or
substance which is (i) petroleum, (ii) asbestos, (iii)
designated as a "hazardous substance" pursuant to Section 311
of the Federal Water Pollution Control Act, 33 U.S.C. Section 1251
et seq. (33 U.S.C. Section 1321) or listed pursuant to Section 307 of the
Federal Water Pollution Control Act (33 U.S.C. Section 1317), (iv)
defined as a "hazardous waste" pursuant to Section 1004 of the
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et
seq. (42 U.S.C. Section 6903), (v) defined as a "hazardous
substance" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation, and Liability Act, 42
U.S.C. Section 9601 et seq. (42 U.S.C. Section 9601), as amended, (vi)
defined as "oil" or a "hazardous waste", a "hazardous
substance", a "hazardous material" or a "toxic material" under
any other law, rule or regulation applicable to the Property
or (vii) is biologically or chemically active.
4.6 Tenant's Pro Rata Share. Except as otherwise
provided herein, Tenant's Pro Rata Share, as used in this
Lease, shall be an amount calculated by multiplying the amount
of the costs, expenses or charges being prorated by a fraction
whose numerator is the total number of square feet of floor
area leased by Tenant in the Leased Premises and whose
denominator is the total number of square feet of leasable
floor area in the Offices and the Warehouse and any other
building now or hereafter constructed on the Land, except that
for purposes of calculating Tenant's share of Common Outside
Area Expenses (as opposed to CAM Charges), Tenant's Pro Rata
Share shall be 25%. The total number of leasable square feet
of floor area in the Offices and the Warehouse on the
Commencement Date is 580,140 square feet. Based on the
foregoing, Tenant's Pro Rata Share shall be 9.98%. Any change
in floor area resulting from construction by Landlord of an
addition to or expansion or reduction of the Leased Premises
or the Warehouse will be included in the calculation of floor
area for purposes of this Section and, in such case, Tenant's
Pro Rata Share (both the 9.98% and the 25%) will be adjusted
accordingly. The architect in charge of the construction of
such addition, expansion or reduction shall certify to
Landlord and Tenant the square footage of the addition,
expansion or reduction by measuring from the exterior faces of
exterior walls or, if none, to the center of any demising
partition, without deduction for columns or structural
elements. Notwithstanding the preceding provisions of this
Section, for purposes of more fairly allocating costs among
tenants, in calculating Tenant's Pro Rata Share, any CAM
Charges or Common Outside Area Expenses which can be
reasonably attributed only to the Leased Premises or the
Warehouse, or to a particular portion thereof, shall be
allocated in the reasonable discretion of Landlord to the
tenant or tenants in that portion of the Buildings.
4.7 Tenant's Care of Leased Premises, CAM Charges, Common
Outside Area Expenses.
(a) Tenant shall, at its own cost and expense, keep
the Leased Premises (and all electrical, heating, air
conditioning, ventilating, plumbing, drains and other utility
systems which exclusively serve the Leased Premises as well as
the roof of the Leased Premises) in good, clean operating
order, condition and repair, except for ordinary wear and tear
and damage by insured casualty. Tenant shall also, at its own
cost and expense, keep the Action Outside Area (as well as the
fencing abutting the Action Outside Area) in good, clean,
operating order, condition and repair, shall make all
necessary repairs, repaving and replacement of the Action
Outside Area necessary to keep the same in good operating
order, condition and repair, and shall be responsible for
keeping the Action Outside Area free from snow, ice, rubbish
and debris and for adequately illuminating and draining the
same. Parking spaces in the Action Outside Area shall, at all
times, be clearly marked by painting, striping or otherwise by
Action, at Action's sole cost and expense. Without limiting
the generality of the foregoing, it is expressly understood
and agreed that Tenant shall not make or suffer any waste or
damage to the Leased Premises or the Action Outside Area and
shall make all necessary repairs, replacements and renewals
thereof, as and when needed in order to keep the Leased
Premises and the Action Outside Area (and abutting fencing) in
good operating order and condition. Without limiting the
generality of the foregoing, it is expressly understood and
agreed that Tenant shall be responsible for the maintenance,
repair, replacement and renewal of (i) all electrical,
heating, ventilating, air conditioning, plumbing, gas,
sprinkler, drainage and other equipment and utility or other
systems which exclusively serve the Leased Premises, (ii) the
roof of the Leased Premises and the slabs, floors, foundation,
walls and structural elements of the Leased Premises, (iii)
all fixtures and interior walls, ceilings, signs (including
exterior signs, where permitted) within the Leased Premises
and portions of any common walls of the Leased Premises which
serve the Leased Premises, (iv) the exterior and interior
portion of all windows, all window frames, doors, door frames
and all other glass or plate glass thereon within the Leased
Premises or the walls thereof or serving the Leased Premises,
(v) all paving, curbs, gutters, grass, landscaping, drainage
systems and lines located in or serving the Action Outside
Area and (vi) the outside lighting serving the Action Outside
Area.
(b) Landlord shall be obligated to maintain the
Common Outside Area, including the maintenance and repair
thereof and Landlord shall also be responsible for keeping the
Common Outside Area free from snow, ice, rubbish and debris,
and for adequately illuminating and draining the same (all of
the costs and expenses incurred by Landlord in connection with
performance of its obligations under this Section 4.7(b) are
hereinafter called the "Common Outside Area Expenses").
(c) Landlord shall also be obligated to maintain
the Common Building Utility Systems (as said term is
hereinafter defined) including the maintenance and repair
thereof. All costs and expenses incurred by Landlord in
connection with the performance of its obligations under this
Section 4.7(c) shall be included within the term "CAM Charges".
As used herein, the term "Common Building Utility Systems"
shall mean the portion of any and all utility lines and
systems and drain lines serving the Buildings and/or the
Leased Premises, including, but not limited to, gas, water,
sewer and electric lines, from the point where they enter or
leave the Leased Premises to the point outside the Buildings
where the applicable utility company assumes control of such
line, together with (i) the water tank located outside the
Buildings which serve the sprinkler system, (ii) the gas
storage shed located outside the Buildings, (iii) the drain
lines and systems outside the Buildings and (iv) any and all
utility lines and drain lines located within the Leased
Premises which are below the slab.
(d) As used in this Lease, the term "CAM Charges"
shall include the costs incurred for operation, maintenance
and repair of the common areas existing at the Property, and
for the replacement of its component parts and structural
elements, including but not limited to the structural elements
of the Buildings located on the Land; the electrical, gas,
sprinkler, plumbing, drainage, water, sewage and HVAC systems
which serve the Property or Buildings in common with other
tenants or space in the Property (including, without
limitation, the Common Building Utility Systems; all areas
exterior to the Leased Premises, including but not limited to
entrances, exits, passageways, sidewalks, driveways, parking
areas, lighting facilities, landscaped areas and utility
lines; together with the cost of cleaning, painting, striping,
and adequate illumination for such elements of the Property;
except that (i) any expense included as a Common Outside Area
Expense, (ii) any expense which, under any other provision of
this Lease, is to be borne entirely by Tenant, (iii) any
expense of maintaining, repairing, replacing or renewing the
roof, exterior walls (other than walls which are common to the
Leased Premises and other parts of the Building), foundation,
floors, windows and glass in the Buildings, (iv) any expense
of maintaining, repairing, replacing or renewing any electric,
plumbing, gas, heating, ventilating, air conditioning,
sprinkler, drainage or other equipment and utility systems
which exclusively serve only parts of the Buildings other than
the Leased Premises and (v) any electric, gas or water charges
which are paid by Tenant under Section 4.9 hereof, shall not
be included in CAM Charges. Such CAM Charges (insofar as they
are for replacements of a major capital structural item (the
"Structural Replacements")) shall be fully included in CAM
Charges when incurred. Upon termination (other than as a
result of (i) a default of Tenant or (ii) a termination in
connection with a substitution of a subtenant in accordance
with Section 3.2 hereof) of this Lease, Landlord shall
reimburse Tenant for the Tenant's Pro Rata Share of the
unamortized cost of such Structural Replacement item (to the
extent theretofore paid by Tenant as a CAM Charge hereunder)
in an amount equal to the remaining number of full years of
the useful life of the Structural Replacement (as of the date
of such expiration of the Lease) as apportioned at the time
the structural replacement was made, multiplied by the
Annualized Cost of the Improvement (as said term is
hereinafter defined) pro-rated in the case of any period of
less than one (1) year; provided, however, that the provisions
of this sentence shall not be binding upon or enforceable
against EWI, its successors, assigns or transferees or
designees under the purchase option set forth in the EWI Lease
or against any purchaser. As used herein, the term "Annualized
Cost of the Improvement" shall mean the cost of the improvement
apportioned equally over annual periods equal to the agreed
upon useful life of the Structural Replacement in question,
which shall be deemed to be the period of time applicable to
the depreciable life of the Structural Replacement at the time
of replacement under Internal Revenue Service Guidelines or a
shorter period if the manufacturer of the replacements items
specifies a shorter useful life. Notwithstanding the breadth
of the definition of CAM Charges, nothing in this Section
4.7(d) shall be deemed to, directly or indirectly, expand the
obligation of Landlord with respect to maintenance, repair,
replacement or operation of the Property beyond those
expressly set forth in Sections 4.7(b) and 4.7(c) of this
Lease or to imply that Landlord has any obligations with
respect to maintenance, repair, replacement or operation of
the Property beyond the obligations set forth in Sections
4.7(b) and 4.7(c). CAM Charges may also include a reasonable
management fee and reasonable overhead charges of Landlord.
(e) Whichever party is performing maintenance,
repair or replacement of the Common Outside Area and
obligations under this Section shall do so in compliance with
all present and future laws, ordinances, orders, rules,
regulations, notices of violations and requirements of public
authorities applicable thereto, whether or not by law tenants
may have such duty or responsibility solely or jointly with a
landlord, except that in no event shall Landlord have any
obligation to correct any failure of the Property (or any part
thereof or system thereon or use thereof) to, as of the
Commencement Date, comply with any such laws, ordinances,
rules or regulations).
(f) Tenant agrees to pay Tenant's Pro Rata Share
(i.e. 9.98%) of the CAM Charges and Tenant's Pro Rate Share
(i.e. 25%) of Common Outside Area Expenses, as hereinafter
provided. Landlord shall ▇▇▇▇ Tenant monthly for Tenant's Pro
Rata Share of Common Outside Area Expenses and CAM Charges.
Each such demand for payment shall include copies of invoices
for charges incurred by Landlord together with a reasonably
detailed statement prepared in accordance with generally
accepted accounting principles and certified by Landlord's
chief financial officer and containing actual costs and the
calculation of Tenant's Pro Rata Share. Tenant's Pro Rata
Share shall be paid within 30 days-of Landlord's demand
therefor. Common Outside Area Expenses and CAM Charges payable
by Tenant shall not include any debt service, any
administrative personnel expense, any costs of Landlord's
office space or office supplies.
(g) Tenant shall have the right to audit Landlord's
books and records to verify Landlord's calculation of Common
Outside Area Expenses, CAM Charges and Tenant's Pro Rata
Share. In the event of an error in Landlord's favor, Landlord
shall immediately refund the overcharge to Tenant. In the
event of an error in Tenant's favor, Tenant shall immediately
pay the Landlord the amount underpaid. In the event of an
error in Landlord's favor of more than four percent (4%) of
the Common Outside Area Expenses and CAM Charges (as opposed
to four percent (4%) of Tenant's Pro Rate Share thereof),
Tenant shall also have the right to charge the reasonable
expenses of any audit (conducted by an outside auditor) to
Landlord.
(h) If there is a dispute between Landlord and
Tenant with respect to the amount of Common Outside Area
Expense or CAM Charges assessed, or of Tenant's Pro Rata Share
thereof, then Tenant shall pay both the disputed and
undisputed amount when due to Landlord pending a resolution of
such dispute.
4.8 Real Estate and Other Taxes.
(a) Tenant shall be obligated each Lease Year or
any portion thereof in which it is a tenant for the payment of
its Pro Rata Share of all real estate taxes and assessments
(at the discount rate provided Tenant pays its rent and Pro
Rata Share of real estate taxes and assessments, insurance
premiums, CAM Charges and Common Outside Area Expenses when
due). Landlord shall be responsible for payment in the first
instance of all such taxes and assessments on the Property.
Upon receipt Landlord shall submit a ▇▇▇▇ to Tenant, together
with photostatic copies of all tax bills and all notices
concerning assessments, and a computation of Tenant's Pro Rata
Share. Within 30 days of submission of each such ▇▇▇▇ and
information, Tenant shall reimburse Landlord in the amount
required by this Lease, and such reimbursement shall be deemed
to be additional rent. Landlord shall have the right but not
the obligation to appeal assessments on the Property, and
Tenant shall pay its Pro Rata Share of the reasonable cost
(including reasonable fees of attorneys and appraisers) of any
such appeal pursued by Landlord to reduce any real estate
taxes upon submission by Landlord to Tenant of copies of
receipts for payments by Landlord of such costs. If by virtue
of any appeal, application, or proceeding brought by or on
behalf of Landlord there is a reduction in the real estate
taxes assessed against the Property, Tenant's Pro Rata Share
of such taxes shall be reduced accordingly or, if previously
paid by Tenant, Tenant's Pro Rata Share of such reduction
shall be paid over and refunded to Tenant upon receipt of such
refund by Landlord. Tenant shall reimburse Landlord for
Tenant's Pro Rata Share of reasonable cost and expenses
incurred in connection with the appeal.
(b) Real estate taxes and assessments as used
herein means all real estate taxes and general and special
assessments on real estate, or any tax imposed on or levied
against real estate or owners of real estate in lieu of such
taxes or assessments. Real estate taxes and assessments as
used herein does not include any of the following, all of
which shall be the sole obligation of Landlord: income,
excise, profits, estate, inheritance, successor, franchise,
capital or other tax or assessment upon Landlord or upon the
rental receipts or other revenues of Landlord from the
Property, except to the extent that rental receipts are taxed
by the municipality in which the Property is located in lieu
of other property taxes.
(c) If Landlord receives an abatement, reduction,
elimination, postponement, refund or other benefit related to
the payment of such taxes and assessments, Tenant shall be
entitled to the benefit thereof, to the extent of its Pro Rata
Share.
(d) For the years in which the Lease Term commences
and terminates, Tenant shall pay only a proportionate share of
real estate taxes and assessments payable under this Section
based on a ratio of the Term within the tax year to the full
tax year. If, as of the Commencement Date, Tenant has paid any
real estate taxes in respect of portions of the Property other
than the Leased Premises for periods occurring after the
Commencement Date, then Landlord shall reimburse Tenant for
all such taxes (after deducting Tenant's Pro Rata Share
thereof under this Lease) paid in respect of such portions and
periods within thirty (30) days of being billed therefor. If
Landlord fails to make any such reimbursement when due and
such failure continues for more than ten (10) days after
written notice thereof, Tenant shall have the right to deduct
the amount of such reimbursement from the next installment of
Annual Office Rent due hereunder.
(e) At Landlord's option, Landlord may require
Tenant to pay into escrow in advance in 12 equal monthly
installments its Pro Rata Share of such taxes and/or
assessments with each monthly payment of rent hereunder. If
Landlord exercises such option, all funds so received from
Tenant shall be kept in a segregated, interest-bearing account
which shall be used solely for paying real estate taxes and
assessments. Tenant's Pro Rata Share of interest accrued in
such interest bearing account shall be paid over to Tenant
after the first day of each Lease Year within thirty (30) days
after request therefor. Notwithstanding anything contained in
this Paragraph 4.8(e) to the contrary, such funds will not
bear interest if the first mortgagee of the Property is
escrowing taxes unless such mortgagee agrees that such escrow
shall be interest bearing, nor shall Tenant be entitled to
receive payments of interest on any such funds unless and to
the extent that any such mortgagee agrees to pay the same in
accordance herewith. In no event will Landlord be in breach
of its obligations hereunder if any such mortgagee does not
agree to pay interest on such funds, refuses to pay interest
to Tenant or fails to pay such interest when due.
4.9 Utilities.
(a) Tenant covenants and agrees that its use of
electric current shall not exceed the capacity of the systems,
wiring and other electrical equipment which Landlord makes
available to the Premises and its total connected load will
not exceed the maximum load from time to time available to the
Premises. Tenant shall not overload the electrical wiring or
electrical panels within or serving the Premises and will
install at its own expense, but only after obtaining
Landlord's prior written approval, any additional electrical
wiring or panels which may be required in connection with
Tenant's apparatus. Landlord shall not in any way be liable
or responsible to Tenant for any loss or damage or expense
which Tenant may sustain or incur if, during the Term of this
Lease, either the quantity or character of electric current is
changed or electric current is no longer available or suitable
for Tenant's requirements due to a factor or cause beyond
Landlord's control. Tenant, at Tenant's expense, shall
purchase and install any replacement lamps, tubes, bulbs,
starters and ballasts which may be needed during the Term.
Tenant shall pay all charges for electricity used or consumed
in the Premises. Electricity is currently furnished to the
entire Building through one meter which enters the Buildings
through the Warehouse in premises being leased to Executive
Warehouse, Inc. ("EWI"). EWI has the right, under its lease
(the "EWI Lease") with Landlord to, if EWI so elects, install
an electric sub-meter or sub-meters at EWI's sole cost and
expense (which cost may be shared with Tenant in such
proportion as EWI and Tenant may agree) in order to measure
electrical usage by Tenant and EWI during each monthly
electricity billing period. The EWI Lease provides that EWI
will coordinate any such submeter installation with Tenant.
The EWI Lease also provides that if EWI installs such sub-meter
or sub-meters, EWI shall read the main meter and each
submeter promptly at the end of each monthly electricity
billing period and promptly furnish Landlord with the
breakdown (the "Electric Breakdown") of electrical consumption
between Tenant and EWI based on such readings. Tenant shall
make arrangements with EWI to coordinate the reading of any
such main electric meter and any such electric submeter. If,
for any reason, Tenant has not received a statement of its
share of electricity charges under this Section 4.9 by the end
of each calendar month, Tenant shall promptly notify Landlord.
Tenant shall pay its share of the electrical charge to
Landlord each month upon the later to occur of (i) five (5)
days after receipt of a statement for such electric charges or
(ii) five (5) days before each related electric ▇▇▇▇ is due
and payable. The cost of installation, maintenance and repair
of any sub-meter which Tenant elects to install shall be borne
by Tenant. Gas and water are also currently furnished to the
Building through one gas meter and one water meter. Tenant
may, if it so elects, install separate submeters for
measurement of gas and/or water consumption by Tenant at
Tenant's sole expense. The Tenant shall pay when due all
charges for utility services provided directly to the Premises
including, without limitation, electricity, gas, water, sewer
and the cost of providing heating, ventilating and air-conditioning
to the Premises.
(b) Tenant, in cooperation with EWI, shall read
each of the utility meters or submeters promptly at the end of
each monthly electricity, sewer, water and gas billing period
and shall promptly furnish Landlord with the results of each
such reading. Tenant shall pay its share of all such
electric, gas, sewer and water utility charges to Landlord
each month at least five days before each related utility ▇▇▇▇
is due and payable. If electricity, water or gas consumed by
the Premises is not metered or submetered separately from
electricity, water or gas, as the case may be, consumed by the
remainder of the Buildings, Tenant shall pay to Landlord,
within five (5) days of being billed therefor by Landlord
(but, in any event, not sooner than five (5) days before such
sums are, in fact, payable to the applicable utility company),
Tenant's share of the aforesaid utilities determined as
hereinafter set forth. Where there is no such separate meter
or submeter installed to measure Tenant's consumption of
electricity, sewer, water or gas, Landlord may, from time to
time, determine Tenant's share of all such electric, gas, sewer
and water charges based on estimates of relative consumption
levels based on actual use (or estimated use if actual usage
information is not available) prepared by an independent
consulting or engineering firm experienced in making such
estimates and, in such case, such estimates of the cost of
providing electricity, gas, sewer and water to the Premises
shall be binding on Landlord and Tenant. Until an estimate of
usage is obtained from a consulting or engineering firm as
contemplated by this Section 4.9(b), Landlord may estimate
Tenant's share of all electric, sewer, water and gas expenses
and require that Tenant pay such estimated amounts monthly in
arrears on the last day of each calendar month during the
Term. Landlord shall have the right to adjust monthly
estimated payments on account of such utilities from time to
time. If water is consumed in the Premises for purposes other
than ordinary drinking and lavatory purposes or in excessive
quantities or if Tenant's heating or cooling requirements are
materially greater than the requirements of other tenants,
then Tenant shall pay to Landlord, on demand from time to
time, charges for such additional water, heating or cooling as
Landlord may require.
(c) Landlord shall not be liable for any
interruption of electricity, gas, water, telephone, sewage,
HVAC and/or septic system or other utility service supplied to
the Premises and Landlord reserves the right to stop any
service or utility to the Premises, when in Landlord's
reasonable judgment it is deemed necessary by reason of
accident, emergency or repair or otherwise; and no such
interruption or stoppage shall be deemed to be an eviction of
Tenant or relieve Tenant from any obligations under this
Lease; in the event any such curtailment, suspension,
interruption or stoppage becomes necessary by reason of the
foregoing, Landlord will use all reasonable efforts to restore
the affected service or services as promptly as possible and
to minimize, to the extent reasonably possible under the
circumstances, any interference, disruption, suspension or
interruption of Tenant's use and enjoyment of the Leased
Premises by reason thereof.
(d) All sums payable under this Section 4.9 shall
constitute additional rent. In the event of nonpayment of any
sums due under this Section 4.9, Landlord shall have all the
same rights and remedies available as in the case of
nonpayment of Annual Rent.
4.10 Tenant's Alterations.
(a) Tenant may, at its own cost and expense and
only with the prior written approval of Landlord which may be
given or withheld by Landlord, in its sole discretion, make
structural, mechanical and electrical changes or alterations
to the Leased Premises subject, however, to Section 4.10(d)
hereof. All work done in connection with such changes or
alterations shall be performed in a good and workmanlike
manner in compliance with applicable building codes and zoning
requirements and all other laws, ordinances, rules and
regulations. Landlord agrees to execute all instruments
necessary to obtain licenses and permits from applicable
governmental authorities to make such changes or alterations
provided that Landlord incurs no obligation, liability or
out-of-pocket expense in connection therewith.
(b) Together with each request for the consent of
Landlord, Tenant shall present to Landlord reasonably detailed
plans and specifications for such proposed structural
alterations, improvements, additions or changes; provided,
however, that approval of such plans and specifications by
Landlord shall not constitute any assumption of any
responsibility by Landlord for their accuracy or sufficiency,
and Tenant shall be solely responsible for such items. All
structural alterations, improvements, additions or changes
shall be done at the expense of Tenant.
(c) All alterations, improvements, additions,
repairs or changes made by Tenant shall remain upon the
Property at the expiration or earlier termination of the Lease
Term and shall become the property of Landlord immediately
upon installation thereof.
(d) Tenant may, at its own cost and expense, but
with the prior approval of Landlord, which approval will not
be unreasonably withheld so long as the requested changes and
alterations do not adversely affect the leasability or
marketability of the Premises or any part thereof as
determined by Landlord, (i) make non-structural, non-mechanical
and non-electrical changes and alterations in and
to the interior of the Leased Premises, including but not
limited to installation of fixtures, equipment and floor
coverings, painting and papering and (ii) may reconfigure non
load bearing interior walls and make related changes in the
location of electrical outlets and related changes to the
heating and air conditioning system serving the Leased
Premises in connection with a reconfiguration of the Premises
and provided, further, that no such reconfiguration,
relocation or change shall adversely affect the Building, the
Premises, Landlord's Recapture Right or any electric, HVAC or
other system serving the Leased Premises or other parts of the
Buildings. Landlord shall have the right to require Tenant to
remove any non-structural changes and alterations made by
Tenant to walls, floors, partitions, ceilings and fixtures at
the conclusion of this Lease to the extent that the value or
marketability of all or any part of the Premises which is or
may be recaptured by Landlord under Article 7 is adversely
affected or the value of the Premises (or any part thereof) is
diminished by such changes and alterations, but in no event
shall Tenant be required to remove any change or alteration
approved in writing by Landlord at the time of alteration or
installation unless such approval states otherwise.
(e) Tenant may not make structural or non-structural
changes to the exterior of the Buildings without the prior
written consent of Landlord.
4.11 Landlord's Reserved Rights. The Premises are
leased subject to the reservation to the Landlord of the roof
and exterior walls of the Premises and of the Building, and
subject to the Landlord's reservation of the right (without
thereby assuming the obligation) to install, maintain, use,
repair and replace (in such manner as to reduce to a minimum
to the extent reasonably practicable the interference with
Tenant's use of the Premises) all pipes, ducts, wires, meters,
utility lines and the like which are in the reasonable
judgment of the Landlord, required to be in the Premises or
are required for other parts of the Buildings. The Landlord
further reserves the right to make additions to the Building
from time to time and to erect additional buildings,
improvements and structures on the land, and in connection
therewith to tie into and make use of common facilities
serving the Premises including without limitation the
electrical systems, the plumbing systems, the heating systems,
sewer, water, and other facilities and appurtenances serving
Premises. The Landlord reserves the right to alter, reduce,
increase and relocate the parking areas, driveways and
walkways from time to time and any common facilities within or
outside the Building; provided, however, that any such
reduction, alteration or relocation does not materially
adversely affect Tenant's use of the Leased Premises.
4.12 Signs. Tenant shall be entitled to retain existing
signs on the exterior and interior of the Property and
Buildings except to the extent such signage is required to be
removed by a new tenant under Article 7. Any additional
exterior signs may be erected by Tenant only with the prior
written consent of Landlord. Any signs erected by Tenant shall
be installed and any existing and future signs of Tenant shall
be maintained by Tenant in good repair at the sole cost and
expense of Tenant. At the end of the Lease Term (whether by
expiration or earlier termination of the Term) or if Tenant no
longer occupies the Property as its primary headquarters or no
longer occupies all of the Offices existing at the date of
this Lease, Tenant will, at Landlord's request, remove
Tenant's signage and repair any damage caused by such removal.
4.13 Landlord's Waiver.
(a) Except for the Personalty listed in Section
1.16 of the Agreement of Sale and Purchase dated as of June
29, 1990 between Landlord and Tenant (the "Purchase
Agreement"), all machinery, equipment, furniture, Tenant's
business fixtures and inventory which are or may be installed
or placed in or upon the Leased Premises by Tenant (exclusive
of any HVAC, electrical, plumbing, lighting, equipment,
ceiling tiles and finishes, floor coverages and leasehold
improvements) ("Tenant's Personal Property") shall remain the
property of Tenant. Landlord waives any right it may have in
Tenant's Personal Property. Tenant may assign, lien, encumber,
mortgage, or create a security interest in or upon Tenant's
Personal Property without the consent of Landlord and may
remove Tenant's Personal Property at any time during the Lease
Term, provided, however, that Tenant shall promptly repair any
damage caused by such removal. Upon the request of Tenant,
Landlord agrees to provide to Tenant within 10 days of such
request, a written waiver in the form attached hereto as
Exhibit D or in a form reasonably satisfactory to any of
Tenant's lenders evidencing Landlord's waiver of any rights it
has or may have in Tenant's Personal Property. If Landlord
fails to execute such waiver of rights, any of Tenant's
lenders may enforce the provisions of this Section as a
third-party beneficiary hereof.
(b) To the extent that Landlord may have a lien on
or security interest in Tenant's Personal Property pursuant to
this Lease, by law or otherwise, Landlord hereby waives and
agrees not to assert such lien or security interest. Landlord
shall execute such additional waivers in the form
substantially attached hereto as Exhibit D for the benefit of
Tenant's lenders as Tenant may, from time to time, reasonably
request.
4.14 Access to Property.
(a) Subject to any governmental requirements and so
long as Landlord does not adversely interfere with Tenant's
use of the Leased Premises, the Common Outside Area or the
Action Outside Area, Landlord may change the entrance, exit
and approaches, and means of entrance, exit and approach, now
existing on the Property. Landlord shall have the right to
alter or expand the existing entrance and exit to and from the
Property, add or authorize any person to add any additional
means of ingress or egress or grant to any other tenant in the
Property any such right or authority so long as such
alteration or expansion does not materially and adversely
interfere with Tenant's use of the Leased Premises.
(b) Landlord has the right (but not the
responsibility) to enter the Property periodically and shall
have access to the Leased Premises and the Action Outside
Area, at reasonable business hours, for inspection (and to
show the Premises to prospective tenants) and to make any
repairs or replacements required of it to be made or to notify
Tenant of reasonable repairs and replacements which are
required of Tenant to be made; provided, however, that
Landlord shall notify Tenant's facilities manager in advance
of such inspections, repairs or replacements, Landlord's
employees, agents and contractors shall identify themselves to
such person upon entering the Property and Landlord will use
reasonable efforts to minimize, to the extent reasonably
possible under the circumstances, interference, disruption,
suspension or interruption of Tenant's use and enjoyment of the
Leased Premises by reason thereof. Notwithstanding the
preceding paragraph, Landlord may enter the Lease Premises and
the Action Outside Area at any time in the case of an
emergency, without notifying Tenant in advance.
4.15 Insurance.
(a) Tenant, at its own cost and-expense, will keep
in force with companies licensed to do business in the
Commonwealth of Pennsylvania:
(i) Comprehensive general liability, personal
injury and personal property damage insurance with respect to
the Leased Premises and the business operated therein with a
combined single limit of $1,000,000. The policy or policies
shall (A) provide that any loss shall be paid notwithstanding
any act or negligence of Landlord or Tenant, (B) name Landlord
as an additional insured thereunder, as its interests may
appear, and (C) extend to any liability of Tenant arising out
of the indemnities, and be subject to the waiver of
subrogation, provided in Section 4.16. Tenant shall also keep
in force, at its own expense, workers' compensation or similar
insurance affording statutory coverage and compensation and
containing statutory limits.
(ii) Fire insurance with standard broad-form
endorsements for extended coverage, vandalism and malicious
mischief and sprinkler leakage, and all-risk casualty
insurance with replacement cost endorsement and with a
deductible of not more than $50,000, covering all of Tenant's
furniture, equipment and other personal property in the Leased
Premises.
(b) Landlord will keep in force with companies
licensed to do business in the Commonwealth of Pennsylvania
(or cause to be kept in force) such fire insurance with such
endorsements for extended coverage, vandalism and malicious
mischief, sprinkler leakage and other coverages, and such
all-risk casualty insurance, in such case, in such amounts, and
with such endorsements and deductibles, with respect to the
Property as Landlord may elect.
(c) All such insurance policies shall provide that
losses shall be payable notwithstanding any act or negligence
of any named insured if such clause is obtainable from the
insurance company. Tenant and Landlord shall have the right to
carry any or all of its insurance under "blanket policies."
Duly executed certificates evidencing the coverage required
hereunder of Tenant shall be delivered to Landlord within 10
days after receipt, together with all portions of the policy
relating to the Property. Such certificates shall specify that
no cancellations shall be effective until 30 days after
written notice to Landlord thereof, except in case of
nonpayment in which case cancellation shall be effective 10
days after written notice, unless a longer period is
available.
(d) During each Lease Year of the Term, Tenant
shall pay Landlord, as additional rent hereunder, Tenant's Pro
Rata Share of Landlord's cost of all insurance on the Building
and the Land (whether purchased directly by Landlord or by any
other tenant or party). Such insurance costs shall including,
without limitation, the costs for fire and extended coverage
insurance and such other insurance covering all hazards
included within customary "all risks" coverage, including
without limitation insurance covering fire, lightning,
vandalism, malicious mischief, and sprinkler leakage, business
interruption and rent insurance, said insurance to be on a
full value, repair, or replacement basis, as determined by
Landlord and Landlords cost for comprehensive liability
insurance indemnifying the Landlord (and any other party)
against all claims and demands for any injury to persons or
property which may be claimed to have occurred in or upon the
Building or the Land in such amounts as Landlord shall from
time to time determine. In addition, notwithstanding the
foregoing, Tenant shall pay as additional rent, one hundred
(100%) percent of Landlord's cost of any insurance with
respect to the Building or the Land which is attributable
solely to Tenant's particular use of the Premises. All
additional rent on account of insurance shall be paid to
Landlord within fifteen (15) days of receipt by Tenant of a
▇▇▇▇ therefor from Landlord, which ▇▇▇▇ shall be accompanied
by a copy of the applicable insurance bills and a computation
showing Tenant's Pro Rata Share of the cost thereof, or, at
the election of the Landlord, in advance in twelve (12) equal
monthly estimated installments (based on an amount estimated
by Landlord) due and payable on the same dates as the monthly
installments of Base Rent payable hereunder, with a final
adjustment to be made as soon as all applicable bills are
available for such period.
4.16 Indemnifications, Mutual Release, and Waiver of
Subrogation Tenant will defend and indemnify Landlord and
hold it harmless from and against any and all claims, actions,
damages, liability and expense (including but not limited to
reasonable attorneys' fees and expenses) in connection with
the loss of life, bodily injury, or damage to property arising
from, related to or in connection with the maintenance,
occupancy or use of the Property by Tenant or occasioned by
any negligent act or omission of Tenant. Landlord will defend
and indemnify Tenant and hold it harmless from and against any
and all claims, actions, damages, liability and expense
(including but not limited to reasonable attorneys' fees and
expenses) in connection with the loss of life, bodily injury
or damage to property of third persons occasioned by any
negligent act or omission of Landlord. The provisions of this
Section shall survive the termination or earlier expiration of
this Lease. Notwithstanding anything to the contrary herein
contained, Landlord and Tenant hereby each release the other
and anyone claiming through or under the other by way of
subrogation or otherwise from any and all liability, claims
and demands whatsoever, for any loss or damage to the property
of one party, occurring through or as a result of any acts or
omissions, whether or not caused by negligence or fault of the
other party or its contractors or subcontractors or their
agents or employees, to the extent of any recovery made by the
waiving party hereto for such loss or damage under any fire
and extended-coverage insurance policy now or hereafter issued
covering the Buildings. In addition, Landlord and Tenant shall
cause each such insurance policy carried by them insuring the
Buildings or the contents thereof to be written to provide
that the insurer waives all rights of recovery by way of
subrogation against the other party hereto in connection with
any loss or damage covered by the policy, if such waiver is
obtainable without additional cost (or if there is an
additional cost, the other party shall pay such cost within 10
days following written notice thereof).
4.17 [Intentionally Omitted]
4.18 [Intentionally Omitted]
4.19 Tenant's Default.
(a) If at any time subsequent to the date of this
Lease any one or more of the following events (herein referred
to as a "Default of Tenant") shall happen:
(i) Tenant shall fail to pay the Annual Rent,
additional rent, Tenant's Pro Rata Share of taxes and
assessments, insurance premiums or of CAM Charges or
Common Outside Area Expenses or other sums or charges
payable by Tenant hereunder when due and Tenant shall
fail to remedy the same within ten (10) days after
notice thereof to Tenant; or
(ii) Tenant shall fail to comply with the
provisions of Article 7 and such failure shall
continue for more than two (2) days after written
notice; or
(iii) Tenant shall neglect or fail to perform
or observe any other covenant herein contained on
Tenant's part to be performed or observed and Tenant
shall fail to remedy the same within thirty (30) days
after notice to Tenant specifying such neglect or
failure, or if such failure is of such a nature that
Tenant cannot reasonably remedy the same within such
thirty (30) day period, Tenant shall fail to commence
promptly to remedy the same and to prosecute such
remedy to completion with diligence and continuity;
or
(iv) Tenant's leasehold interest in the Leased
Premises shall be taken on execution or by other
process of law directed against Tenant; or
(v) Tenant shall make an assignment for the
benefit of creditors or shall file a voluntary
petition in bankruptcy or shall be adjudicated
bankrupt or insolvent, or shall file any petition or
answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution
or similar relief for itself under any present or
future Federal, State or other statute, law or
regulation for the relief of debtors, or shall seek
or consent to or acquiesce in the appointment of any
trustee, receiver or liquidator of Tenant or of all
or any substantial part of its properties, or shall
admit in writing its inability to pay its debts
generally as they become due; or
(vi) A petition shall be filed against Tenant
in bankruptcy or under any other law seeking any
reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar
relief under any present or future Federal, State or
other statute, law or regulation and shall remain
undismissed or unstayed for an aggregate of ninety
(90) days (whether or not consecutive), or if any
debtor in possession (whether or not Tenant) trustee,
receiver or liquidator of Tenant or of all or any
substantial part of its properties or of the Leased
Premises shall be appointed without the consent or acquiescence
of Tenant and such appointment shall remain unvacated or
unstayed for an aggregate of ninety (90) days (whether or
not consecutive);
then in any such case, Landlord may terminate this Lease by
notice to Tenant, and thereupon this Lease shall come to an
end as fully and completely as if such date were the date
herein originally fixed for the expiration of the Term of this
Lease, and Tenant will then quit and surrender the Premises to
Landlord, but Tenant shall remain liable as hereinafter
provided.
(b) If this Lease shall be terminated as provided
in this Section 4.19, or if any execution or attachment shall
be issued against Tenant or any of Tenant's property whereupon
the Leased Premises shall be taken or occupied by someone
other than Tenant, Tenant shall surrender and deliver up the
Premises to Landlord, and, upon any default in doing so, then
Landlord may, without notice, re-enter the Premises, either by
force, summary proceedings, ejectment or otherwise, and remove
and dispossess Tenant and all other persons and any and all
property from the same, as if this Lease had not been made,
and to apply for the appointment of a receiver and for other
ancillary relief in such action, provided that Tenant shall
have ten (10) days' written notice (or such longer notice as
applicable law may provide) after such application for a
receiver or other ancillary relief is filed and before any
hearing thereon, and, in such event, Landlord shall have and
enjoy the said Premises, fully and completely, as if this
Lease had never been made.
(c) In the event of any termination, Tenant shall
pay the Annual Rent, Tenant's Pro Rata Share of real estate
taxes and assessments and insurance premiums, CAM Charges,
Common Outside Area Expenses and also all other additional
rent and other sums payable hereunder up to the time of such
termination, and thereafter Tenant, until the end of what
would have been the Term of this Lease in the absence of such
termination, and whether or not the Leased Premises shall have
been relet, shall be liable to Landlord for, and shall pay to
Landlord, as liquidated current damages, the Annual Rent,
Tenant's Pro Rata Share of real estate taxes and assessments,
insurance premiums, CAM Charges, Common Outside Area Expenses
and also all other additional rent and other sums which would
be payable hereunder if such termination had not occurred,
less the net proceeds, if any, of any reletting of the Leased
Premises, after deducting from the net proceeds of such
reletting all reasonable expenses in connection with such
reletting (amortized, to the extent permitted by generally
accepted accounting principles, over the term of such re-letting or such
other period as may be appropriate under the
circumstances), including, without limitation, all
repossession costs, brokerage commissions, legal expenses,
attorneys' fees, advertising, expenses of employees,
alteration costs and expenses of preparation for such
reletting. Tenant shall pay such current damages to Landlord
monthly on the days which the Annual Rent and additional rent
would have been payable hereunder if this Lease had not been
terminated.
(d) At any time after such termination, whether or
not Landlord shall have collected any such current damages, as
liquidated final damages and in lieu of all such current
damages beyond the date of such demand, at Landlord's election
Tenant shall pay to Landlord an amount equal to the present
value (using a discount rate of 8.5%) the excess, if any, of
the rent, Tenant's Pro Rata Share of taxes, insurance premiums
and of CAM Charges and Common Outside Area Expenses and
additional rent and other sums as hereinbefore provided which
would be payable hereunder from the date of such demand
(assuming that, for the purposes of this paragraph, annual
payments by Tenant on account of taxes, insurance premiums,
CAM Charges and Common Outside Area Expenses and other
expenses would be the same as the payments required for the
immediately preceding lease year) for what would be the then
unexpired Term of this Lease if the same had remained in
effect, over the then fair net rental value of the Leased
Premises for the same period (assuming, for this purpose, the
same level of Landlord services as are provided in this
Lease).
(e) In the case of any such termination, re-entry,
expiration or dispossession by summary proceeding or
otherwise, Landlord may (i) re-let the Leased Premises or any
part or parts thereof, either in the name of Landlord or
otherwise, for a term or terms which may at Landlord's option
be equal to or less than or exceed the period which would
otherwise have constituted the balance of the Term of this
Lease and may grant concessions or free rent to the extent
that Landlord considers advisable and reasonably necessary to
re-let the same and (ii) may make such reasonable alterations,
repairs and decorations in the Leased Premises as Landlord in
its reasonable judgment considers advisable and necessary for
the purpose of reletting the Leased Premises; and the making
of such alterations, repairs and decorations shall not operate
or be construed to release Tenant from liability hereunder as
aforesaid. Landlord shall in no event be liable in any way
whatsoever for failure to re-let the Leased Premises, or, in
the event that the Leased Premises are re-let, for failure to
collect the rent under such re-letting. Landlord will,
however, use good faith efforts to re-let the Leases Premises.
Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws in
the event of Tenant being evicted or dispossessed, or in the
event of Landlord obtaining possession of the Leased
Premises, by reason of the violation by Tenant of any of the
covenants and conditions of this Lease.
(f) In addition to all other rights and remedies
which Landlord may have under the Lease, at law or in equity,
upon the occurrence of any Default of Tenant, Landlord shall
also have the following right: Any prothonotary or attorney
of any court of record may appear for Tenant in amicable
actions in ejectment, and may sign for Tenant an agreement,
for which this Lease shall be his sufficient warrant, for
entering in any competent court an amicable action or actions
in ejectment, and in any suits or in said amicable actions to
confess judgment against Tenant as well as all persons
claiming by, through or under Tenant for the recovery by
Landlord of possession of the Leased Premises. Such authority
shall not be exhausted by any one or more exercises thereof,
but judgment may be confessed from time to time as often as a
Tenant's Default shall have occurred or be continuing. Such
powers may be exercised during as well as after the expiration
extension or renewal of the Lease Term.
(g) The specified remedies to which Landlord may
resort hereunder are not intended to be exclusive of any
remedies or means of redress to which Landlord may at any time
be entitled to lawfully, and Landlord may invoke any remedy
(including the remedy of specific performance) allowed at law
or in equity as if specific remedies were not herein provided
for.
(h) All reasonable costs and expenses incurred by
or on behalf of Landlord (including, without limitation,
reasonable attorneys' fees and expenses) in enforcing its
rights hereunder or occasioned by any Default of Tenant shall
be paid by Tenant.
(i) Notwithstanding anything to the contrary
contained in this Lease:
(i) Landlord shall not have any right to
accelerate rent and other amounts payable hereunder
except to the extent provided in this Lease.
(ii) Landlord shall not have any right to
exercise its remedies hereunder if Tenant cures a Default
of Tenant prior to the effective date of Landlord's
termination of this Lease (but not more than two times in
the aggregate in any 12-month period as to all defaults).
The provisions of this clause (ii) above shall not apply
to failure to pay Annual Rent, or Tenant's Pro Rata Share
of real estate taxes and assessments, insurance premiums,
CAM Charges or Common Outside Area Expenses, or any other
additional rent or charges payable by Tenant under this
Lease nor to a failure to comply with Article 7.
(iii) In the event of any Tenant
Default under this Lease, Landlord shall in each case use
its good faith efforts to mitigate its damages.
(j) In the event of a Default of Tenant, any
amounts paid by Landlord to cure such default and any rents
due and payable by Tenant shall bear interest at the rate
payable by Landlord to its first mortgage lender.
(k) Except as otherwise provided in this Section,
all remedies available to Landlord hereunder and at law and in
equity shall be cumulative and concurrent. No termination of
the Lease nor taking or recovering possession of the Leased
Premises shall deprive Landlord of any remedies or actions
against Tenant for Annual Rent or Tenant's Pro Rata Share of
real estate taxes and assessments or any other additional rent
or for charges or for damages for the breach of any covenant,
agreement or condition herein contained, nor shall the
bringing of any such action for Annual Rent, Tenant's Pro Rata
Share of real estate taxes and assessments, insurance
premiums, CAM Charges and Common Outside Area Expenses and
other additional rent or charges or breach of covenant,
agreement or condition, nor the resort to any other remedy or
right for the recovery of Annual Rent, Tenant's Pro Rate Share
of real estate taxes and assessments and insurance premiums,
CAM Charges, Common Outside Area Expenses, additional rent or
other charges or damages for such breach, be construed as a
waiver or release of the right to insist upon the forfeiture
and to obtain possession.
(l) Any failure of Landlord to enforce any remedy
allowed for the violation of any provision of this Lease shall
not imply the waiver of any such provision, even if such
violation is continued or repeated, and no express waiver
shall affect any provision other than the one(s) specified in
such waiver and only for the time and in the manner
specifically stated.
4.20 Landlord Default. Landlord shall in no event be
in default of the performance of any of Landlord's obligations
hereunder unless and until Landlord shall have unreasonably
failed to perform such obligation within a period of time
reasonably required to correct any such default, after notice
by Tenant to Landlord specifying wherein Landlord has failed
to perform any such obligations. If Landlord is determined
to be in default, Landlord shall reimburse Tenant for the
amounts paid by Tenant, including costs and attorneys' fees,
together with interest thereon at the rate payable by Landlord
to its primary lender.
4.21 Fire and Other Casualty; Eminent Domain.
(a) Abatement Of Rent. If the Leased Premises
shall be damaged by fire or casualty, Annual Rent, Tenant's Pro
Rata Share of real estate taxes and assessments and insurance
premiums, CAM Charges and Common Outside Area Expenses and
other charges and additional rent payable by Tenant shall ▇▇▇▇▇
proportionately for the period in which, by reason of such
damage, there is substantial interference with Tenant's
use of the Leased Premises, having regard to the extent to
which Tenant may be required to discontinue Tenant's use
of all or a portion of the Leased Premises, but such
abatement or reduction shall end if and when Landlord
shall have substantially restored the Leased Premises
(excluding any alterations, additions or improvements made
by Tenant pursuant to this Lease) to the condition in
which they were prior to such damage. If the Leased
Premises shall be affected by any exercise of the power of
eminent domain, Annual Rent, Tenant's Pro Rata Share of
real estate taxes and assessments and insurance premiums,
CAM Charges and Common Outside Area Expenses and
additional rent payable by Tenant shall be justly and
equitably abated and reduced according to the nature and
extent of the loss of use thereof suffered by Tenant. In
no event shall Landlord have any liability for damages to
Tenant for inconvenience, annoyance, or interruption of
business arising from such fire, casualty or eminent
domain.
(b) Landlord's Right Of Termination. If (i) the
Premises or the Building are substantially damaged by fire or
casualty (the term "substantially damaged" meaning damage of
such a character that the same cannot, in ordinary course,
reasonably be expected to be repaired within one hundred
eighty (180) days from the time the repair work would
commence), or (ii) if any part of the Building is taken by any
exercise of the right of eminent domain, or (iii) any
mortgagee then holding a mortgage on the Property or on any
interest of Landlord therein should require that insurance
proceeds or awards payable as the result of any fire, casualty
or taking be applied toward the applicable mortgage debt
rather than to restoration of the Building, then Landlord
shall have the right to terminate this Lease (even if
Landlord's entire interest in the Leased Premises may have
been divested) by giving notice of Landlord's election so to
do within forty five (45) days after the occurrence of such
casualty or the effective date of such taking, whereupon
this Lease shall terminate thirty (30) days after the
date of such notice with the same force and effect as if
such date were the date originally established as the
expiration date hereof.
(c) Restoration. If this Lease shall not be
terminated pursuant to Section 4.21(b), 4.21(d) or 4.21(e) and
provided that (a) the Leased Premises, Building or part
thereof, can be lawfully restored to substantially its former
condition under applicable zoning, building, and other laws
and (b) any first mortgagee with respect to the Property shall
make the proceeds of insurance or condemnation awards related
thereto available for restoration, Landlord shall thereafter
use due diligence to restore the Leased Premises (excluding
any alterations, additions or improvements made by Tenant) to
proper condition for Tenant's use and occupation, provided
that Landlord's obligation shall be limited to the amount of
insurance proceeds actually made available to Landlord
therefor. If, for any reason, such restoration shall not be
substantially completed within six months after the expiration
of the forty five (45) day period referred to in Section
4.21(b) (which six-month period may be extended for such
periods of time as Landlord is prevented from proceeding with
or completing such restoration by reason of a Force Majeure
Event or for any other cause beyond Landlord's reasonable
control, but in no event for more than an additional three
months), Tenant shall have the right to terminate this Lease
by giving notice to Landlord thereof within thirty (30) days
after the expiration of such period (as so extended). Upon the
giving of such notice, this Lease shall cease and come to an
end without further liability or obligation on the part of
either party unless, within such 30-day period, Landlord
substantially completes such restoration. Such right of
termination shall be Tenant's sole and exclusive remedy at law
or in equity for Landlord's failure so to complete such
restoration.
(d) If, within two years prior to the expiration of
the Lease Term, more than 50% of the Leased Premises shall be
substantially damaged or destroyed by fire or any other
casualty, and the estimated time required for restoration
exceeds six months, Tenant shall have the option of
terminating this Lease 60 days after written notice to
Landlord, such written notice to Landlord to be given within
30 days after such destruction or damage.
(e) In the event that (i) more than 25% of the
Leased Premises are taken by any public authority or utility
under the power of eminent domain or (ii) if more than 25% of
the Property is taken by any public authority and as a result
of such taking Tenant's business is, in its reasonable
judgment, materially adversely affected thereby, then, within
60 days of any of the above, Tenant will have the irrevocable
right to terminate this Lease by written notice to Landlord,
in which case all rent and other sums due hereunder shall
▇▇▇▇▇ as of the date of the taking.
(f) Award. Landlord shall have and hereby
reserves and excepts, and Tenant hereby grants and
assigns to Landlord, all rights to recover for damages to
the Property, the Leased Premises and the leasehold
interest hereby created, and to compensation accrued or
hereafter to accrue by reason of such taking, damage or
destruction, and by way of confirming the foregoing,
Tenant hereby grants and assigns, and covenants with
Landlord to grant and assign to Landlord, all rights to
such damages or compensation. Nothing contained herein
shall be construed to prevent Tenant from, at its sole
cost and expense, prosecuting a separate condemnation
proceeding with respect to a claim for the value of any
of Tenant's Personal Property installed in the Leased
Premises by Tenant at Tenant's expense and for relocation
expenses, provided that such action shall not affect the
amount of compensation otherwise recoverable by Landlord
from the taking authority.
(g) No Liability On Account Of Injury To Business,
Etc. Landlord shall not be liable for any inconvenience or
annoyance to Tenant or injury to the business of Tenant or
resulting in any way from damage from fire or other casualty
or the repair thereof and Tenant understands and agrees that
Landlord shall in no event be responsible for the repair or
replacement of any furniture or furnishings or any fixtures or
equipment removable by Tenant under the provisions of this
Lease. If Tenant desires any other or additional repairs or
Restoration and if Landlord consents thereto, the same shall
be done at Tenant's expense. Tenant acknowledges that
Landlord shall be entitled to the full proceeds of any
insurance coverage whether carried by Landlord or Tenant, for
damage to the Leased Premises and any alterations or
improvements thereto. Upon any expiration or earlier
termination of this Lease, any insurance proceeds not
theretofore applied to the cost of Restoration shall be paid
to Landlord. Tenant acknowledges that the fire and extended
coverage insurance carried by Landlord shall not extend to
Tenant's Personal Property, including trade fixtures, floor
coverings, furniture and other property removable by Tenant
and that Tenant shall be responsible for carrying fire,
casualty, malicious mischief, sprinkler leakage and all risk
insurance on all such personal property, trade fixtures, floor
coverings, furniture and other property removable by it.
4.22 Financial Statements. Tenant shall, from time to
time, deliver to Landlord, within thirty (30) days after
request, a current annual certified financial statement,
including operating statements and balance sheets, for Tenant.
All such financial statements shall be prepared and certified
by an independent certified public accounting firm and shall
be prepared in accordance with generally accepted accounting
principles consistently applied.
4.23 Subordination of Lease.
(a) Landlord reserves the right to subject and
subordinate this Lease at all times to the lien of any first
mortgage, deed of trust, land lease or other security document
having first priority, now or hereafter placed upon Landlord's
interest in the Property, and to all advances made thereunder
and to the interest therein, and all renewals and
modifications thereof, all on such terms and conditions as the
holder of any such first mortgage customarily requires.
Tenant shall, upon written request, and from time to time,
promptly execute and deliver, without charge and in form
satisfactory to the Landlord and any such mortgagee, all
instruments and documents that may be requested to acknowledge
such subordination in recordable form within ten (10) days of
such request.
(b) Notwithstanding anything to the contrary set
forth above, any Landlord mortgagee may at any time
subordinate its mortgage to this Lease, without Tenant's
consent, by execution of a written document subordinating such
mortgage to this Lease to the extent set forth therein, and
thereupon this Lease shall be deemed prior to such mortgage to
the extent set forth in such written document without regard
to their respective dates of execution, delivery or recording.
In that event, to the extent set forth in such written
document, such mortgagee shall have the same rights with
respect to this Lease as though this Lease had been executed
and this Lease or memorandum thereof recorded prior to the
execution, delivery, and recording of the mortgage. Should
Landlord or any mortgagee or purchaser desire confirmation of
either such subordination or attornment, as the case may be,
Tenant upon written request, and from time to time, will
promptly execute and deliver without charge and in form
satisfactory to Landlord, the mortgagee or the purchaser all
instruments and documents that may be requested to acknowledge
such subordination or agreement to attorn, in recordable form,
within 10 days of such request.
ARTICLE 5 - ADDITIONAL PROVISIONS
5.1 Notice. Whenever notice is required or permitted in
this Lease, such notice will be in writing and deemed to be
properly given effective upon the date of receipt or refusal,
only if sent by certified mail or registered mail, or upon
receipt only if sent by any nationally recognized overnight
mail service to the parties hereto addressed to the following:
Seller at: Action Industries, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: T. ▇▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to: ▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C.
2900 CNG Tower
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Buyer at: ▇.▇. ▇▇▇▇▇▇▇ Company, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇ & Greeley
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Esq.
or to such other addresses as may be requested by any party
hereto by giving notice to the other party in the manner
herein specified.
5.2 Short-Form Lease. Each of the parties hereto
covenants to the other that this Lease shall not be recorded
by either of them. However, on the Commencement Date, Landlord
and Tenant shall execute a short-form lease for recording,
which shall contain such form and substance as either party
shall reasonably request, with the exception of the rent
reserved hereunder. Upon the termination of this Lease, Tenant
shall execute, acknowledge, and deliver to Landlord an
instrument in writing releasing and quitclaiming to Landlord
all right, rifle, and interest of Tenant in and to the
Property arising from this Lease or otherwise, all without
cost or expense to Landlord.
5.3 Entire Agreement. This Lease, together with the
Recitals and Exhibits, shall constitute the entire agreement
of the parties hereto with respect to the leasing of the
Property; all prior agreements between the parties whether
written or oral, are merged herein and shall be of no force
and effect.
5.4 Severability. If any term, covenant, condition, or
provision of this Lease is held by a court of competent
jurisdiction to be invalid, void, or unenforceable, the
remainder of the provisions hereof shall continue in full
force and effect and shall in no way be affected, impaired, or
invalidated thereby.
5.5 Grammatical Usage and Construction. In construing
this Lease, feminine or neuter pronouns will be substituted
for those masculine in form and vice versa, and plural terms
will be substituted for singular and singular for plural in
any place in which the context so requires. This Lease shall
be construed without regard to the identity of the party who
drafted the various provisions hereof. Moreover, each and
every provision of this Lease shall be construed as though all
parties hereto participated equally in the drafting thereof.
As a result of the foregoing, any rule or construction that a
document is to be construed against the drafting party will
not be applicable hereto.
5.6 Table of Contents, Paragraph Headings. The table of
contents and paragraph headings are inserted only for
convenience and in no way define, limit or describe the scope
or intent of this Lease, nor in any way affect this Lease.
5.7 No Joint Venture or Partnership Created by Lease. It
is hereby understood and agreed that nothing contained herein
shall be deemed or construed by the parties hereto nor by any
third party as creating the relationship of principal and
agent or of partnership or of joint venture between the
parties hereto, it being agreed that no provision herein
contained nor any acts or the parties herein will be deemed to
create any relationship between the parties hereto other than
the relationship of Landlord and Tenant.
5.8 Broker's Commission. Landlord and Tenant represent
and warrant to each other that there are no brokerage
commissions or finders' fees due any party as a result of
this transaction, except, however, that a commission (the "Gold
Fee") is due Gold & Company in connection with a lease (the
"EWI Lease") between Landlord and Executive Warehouse, Inc.
dated _________________, 1996, with respect to approximately
515,375 square feet of space located in the balance of the
Property. Tenant acknowledges and agrees that it is
responsible for, and shall pay, a share of such Gold Fee as
agreed upon by Tenant and Gold & Company. Landlord
acknowledges that it is responsible for, and will pay, a share
of such Gold Fee as agreed upon by Landlord and Gold &
Company. Landlord and Tenant will indemnify and hold harmless
each other for any breach of the above representations and
warranties and agreements, including, without limitation,
reasonable attorneys' fees incurred in connection with any such
claim.
5.9 Rights Cumulative. Unless expressly provided to the
contrary in this Lease, each and every one of the rights,
remedies and benefits provided by this Lease will be
cumulative and will not be exclusive of any other such rights,
remedies, and benefits allowed by law.
5.10 Non-Waiver. The failure of Landlord or Tenant to
enforce against the other any provision, covenant or condition
herein, by reason of either of them committing any breach of
or default under this Lease, shall not be deemed a waiver
thereof, nor shall such failure to enforce void or affect the
right of the aggrieved party to enforce the same covenant or
condition on the occasion of any subsequent breach or default;
nor will the failure of either party to exercise any option in
this Lease upon any occasion arising therefor be deemed or
construed to be a waiver of the right to exercise the same
type of option upon any subsequent occasion.
5.11 Time is of the Essence. Time is of the essence in
all provisions of this Lease.
5.12 Surrender of Premises. At the expiration or earlier
termination of the Lease Term, Tenant will quit and surrender
the Leased Premises, the Action Outside Area, all utility
systems located in or servicing the Premises, the roof above
the Leased Premises and every part of the Leased Premises in
good operating condition and repair, reasonable wear and tear
and damage by insured casualty excepted.
5.13 Successors and Assigns. The provisions of this Lease
shall bind and inure to the benefit of the parties hereto and
their respective permitted successors and assigns unless
prohibited by this Lease.
5.14 No Merger. There shall be no merger of this Lease or
of the leasehold estate created by this Lease with the fee
estate in the Property or any part of it because the same
person or entity holds, directly or indirectly, this Lease or
the leasehold estate and an interest in the fee estate in the
Property, without the prior written consent of Landlord and
Landlord's mortgagee.
5.15 Force Majeure. Except as otherwise expressly set
forth herein, in the event either party hereto is delayed or
hindered in, or prevented from, the performance of any act
required hereunder by reason of strikes, lockouts, failure of
power, restrictive governmental laws or regulations, riots,
insurrection, war or other reasons of a like nature not the
fault of the party delayed in performing work or doing acts
required under the terms of this Lease (all of such reasons or
causes referred to in this Lease as "force majeure"), then
performance of such acts will be excused for the period of the
delay, and the period of the performance of any such act will
be extended for a period equivalent to the period of such
delay, but in no event shall force majeure ever excuse Tenant
from the obligation to pay Annual Rent, Tenant's Pro Rata Share
of real estate taxes and assessments, insurance premiums, CAM
Charges, Outside Common Area Expenses, additional rent or any
other sum or charge when due.
5.16 Holdover. In the event Tenant fails to deliver
possession of the Property then under lease by it by the last
day of the Lease Term, this Lease shall be extended on a
month-to-month basis until canceled by either party hereto by
30 days prior written notice. If Tenant fails to vacate the
Property within 30 days after such notice by Landlord, Tenant
shall be treated as a tenant at sufferance and shall pay as
rent for the first two months of such holdover period an
amount equal to 150% of the Annual Rent payable during the
last Lease Year of the Lease Term and 200% of such rent for
each month thereafter, and otherwise under the terms and
conditions of this Lease.
5.17 Arbitration of CAM Charge Disputes. If, at any
time, during the term of this Lease when the Premises includes
at least 28,500 square feet, there arises any dispute relating
to the items or amounts included in the calculation of Common
Outside Area Expenses or CAM Charges and such dispute cannot
be resolved within thirty (30) days after such dispute is
asserted in writing, then either party to this Lease may, upon
ten (10) days business notice to the other party, request
arbitration and each party shall, within ten (10) business
days thereafter, select one arbitrator. The two arbitrators
so selected shall then, within ten (10) business days
thereafter, select a third arbitrator. If the two so selected
cannot agree on a third, the third shall be selected by the
American Arbitration Association in Pittsburgh, Pennsylvania
or any successor organization thereto. The arbitration shall
be held promptly in Pittsburgh, Pennsylvania pursuant to the
usual procedure of the American Arbitration Association. Such
three (3) arbitrators shall investigate the allegations and
the facts and shall promptly hold hearings and shall permit
the parties to present evidence and arguments, and shall
render a decision within thirty (30) days after the conclusion
of such hearings as to the correct calculation of the amount
of Common Outside Area Expenses or CAM Charges which were the
subject of such proceeding, which decision shall be final,
valid, binding, conclusive and non-appealable and any party
shall have the right to institute such action or proceeding in
such courts as shall be appropriate in the circumstances to
enforce any such arbitration decision. The arbitrator shall
determine which party or in what proportion the parties shall
bear the cost of such arbitration and the manner in which
attorneys' fees shall be paid. Any award of money damages and
all costs and attorneys' fees payable hereunder shall be paid
to the party entitled thereto within ten (10) days after the
date it receives the arbitrations' decision.
5.18 Waiver of Jury Trial. LANDLORD AND TENANT WAIVE THE
RIGHT TO A TRIAL BY JURY IN ANY ACTION, COUNTERCLAIM OR
PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER OF
THIS LEASE. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND
VOLUNTARILY MADE BY LANDLORD AND TENANT, AND LANDLORD AND
TENANT ACKNOWLEDGE THAT NEITHER PARTY NOR ANY PERSON ACTING ON
BEHALF OF SUCH PARTY HAS MADE ANY REPRESENTATIONS OF FACT TO
INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR
NULLIFY ITS EFFECT. LANDLORD AND TENANT FURTHER ACKNOWLEDGE
THAT EACH HAS BEEN REPRESENTED IN THE SIGNING OF THIS LEASE
AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL,
SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE
OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. LANDLORD AND
TENANT EACH FURTHER ACKNOWLEDGE THAT IT HAS READ AND
UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS WAIVER
PROVISION.
5.19 Landlord's Liability.
(a) Tenant specifically agrees to look solely to
the assets of Landlord at the time owned, for recovery of any
judgment from Landlord; it being specifically agreed that ▇▇▇▇
▇. ▇▇▇▇▇▇▇ shall never be personally liable for any such
judgment or for the payment of any monetary obligation to
Tenant.
(b) In no event shall Landlord ever be liable to
Tenant for any loss of business or any other indirect or
consequential damages suffered by Tenant from whatever cause.
(c) With respect to any repairs, replacements or
restoration which are required or permitted to be made by
Landlord, the same may be made during normal business hours
and Landlord shall have no liability for damages to Tenant for
inconvenience, annoyance or interruption of business arising
therefrom but, subject to the foregoing, Landlord will use
reasonable efforts to minimize such inconvenience, annoyance
or business interruption.
5.20 Assignment Of Rents And Transfer Of Title.
(a) With reference to any assignment by Landlord of
Landlord's interest in this Lease, or the rents payable
hereunder, conditional in nature or otherwise, which
assignment is made to the holder of a mortgage on property
which includes the Leased Premises, Tenant agrees that the
execution thereof by Landlord, and the acceptance thereof by
the holder of such mortgage or assignment, shall not be
treated as an assumption by such holder of any of the
obligations of Landlord hereunder unless such holder shall
specifically otherwise elect.
(b) In the event of any transfer of title to the
Property by Landlord, Landlord shall thereafter be entirely
freed and relieved from the performance and observance of all
covenants and obligations hereunder except for unperformed
obligations arising out of events occurring prior to such
transfer.
5.21 Quiet Enjoyment. If Tenant pays the Annual Rent,
additional rent, CAM Charges, real estate taxes and
assessments, insurance, Tenant's Outside Area Expenses and
other sums and charges payable by Tenant hereunder and
otherwise substantially performs all of the covenants and
conditions to be performed by Tenant under this Lease, subject
to applicable notice and grace periods, it shall, during the
Lease Term, lawfully, peaceably and quietly occupy and enjoy
the Leased Premises as provided herein with the improvements
and appurtenances thereto belonging and the rights and
privileges herein granted without hindrance or ejection by any
persons lawfully claiming under Landlord to have title to the
Leased Premises superior to Tenant. The foregoing covenant of
quiet enjoyment is in lieu of any other covenant, express or
implied. If a purchaser of the Property so requests, Tenant
will attorn to and recognize the purchaser as Landlord under
this Lease, subject to all of the terms of this Lease.
5.22 Estoppel Certificate. Upon request of Landlord or
Tenant, the other party, within 10 days of the date of such
written request, agrees to execute and deliver to the party
requesting, without charge, a written statement (a) ratifying
this Lease; (b) certifying that this Lease is in full force
and effect, if such is the case, and has not been modified,
assigned, supplemented, or amended except by such writings as
are stated; (c) certifying that all conditions and agreements
under this Lease to be satisfied and performed have been
satisfied and performed, except as stated; (d) certifying that
the other party is not in default under this Lease or stating
the defaults claimed; and (e) reciting the amount of advance
rental, if any, paid by Tenant and the date to which rental
has been paid.
5.23 Emergency Cures. In the event of emergencies, or
where necessary to prevent immediate injury to persons or
damage to property, either party may cure a default by the
other before the expiration of the notice period, but only
after giving written or oral notice to the other party.
5.24 Governing Law. This Lease shall be governed by,
construed and enforced in accordance with the laws of the
Commonwealth of Pennsylvania.
5.25 Attorneys' Fees. In the event of any litigation
between Landlord and Tenant, the prevailing party shall be
entitled to receive from the other, the amount of its
reasonable out-of-pocket legal fees and expenses and other
out-of-pocket costs incurred in connection therewith.
5.26 Consents. Whenever under this Lease, express
provision is made for either party's securing the consent or
approval of the other, such consent or approval shall be in
writing and shall not be unreasonably withheld or delayed,
except as may be expressly set forth otherwise to the
contrary. It is expressly understood and agreed that where a
party has the right to grant or withhold approval in its sole
discretion, the provisions of this Section 5.26 shall not
apply.
ARTICLE 6 - EFFECTIVE DATE; SPECIAL PROVISIONS
6.1 Effective Date. This Amended and Restated Lease
shall become effective as of the date (the "Effective Date")
upon which the term of the EWI Lease shall commence. Landlord
shall give Tenant written notice of the date which is the
actual commencement date of the EWI Lease when such date
becomes fixed and established. Tenant shall, notwithstanding
any term, covenant or provision of this Amended and Restated
Lease to the contrary, remain liable for payment and
performance of all obligations under the Existing Lease which
accrue or are to be performed thereunder through the Effective
Date and, also, for all obligations thereunder with respect to
any matters occurring, arising or in existence through the
Effective Date. Without limiting any other term or provision
of this Lease, Tenant agrees that any and all purchase
options, purchase rights, rights of first refusal and
extension options in the Existing Lease are hereby terminated
absolutely.
6.2 Surrender of Property. Tenant shall surrender the
entire Property (exclusive of the Leased Premises under this
Lease and subject to the Tenant's appurtenant rights to use the
Action Outside Area) on the Effective Date in the condition
required under, and in compliance with the provisions of, the
Existing Lease.
ARTICLE 7 - LANDLORD'S RIGHT TO TAKE BACK SPACE
7.1 Recapture Notice; Recapture Space; Annual Rent
Adjustment. Landlord shall have the right (the "Recapture
Right"), exercisable at any time, to terminate this Lease as
to all or any part of the Premises by giving written notice to
Tenant as provided herein (the "Recapture Notice"). Landlord
may exercise the Recapture Right as often as Landlord may
require from time to time and this Lease shall, as to such
portion of the Premises as is included and specified in a
Recapture Notice, terminate on the date set forth in any such
Recapture Notice, which date shall be not sooner than twenty
(20) days after the giving of such Notice, if the Recapture
Notice relates to 30,000 square feet or less. If the
Recapture Notice relates to more than 30,000 square feet, then
the Termination Date in such Recapture Notice shall be the
later of thirty (30) days after the giving of such Notice or
December 31, 1996. In any such case, this Lease shall, as to
the portion of the Premises included in any such Recapture
Notice (such portion of the Premises being called the
"Recapture Space"), expire and terminate on the date set forth
in such Notice (but not sooner than the date specified in the
immediately preceding sentences) with the same effect as if,
as to such Recapture Space, the termination date set forth in
the Recapture Notice were the expiration date of the Lease
with respect to such Recapture Space. Upon the effective date
of termination of this Lease by a Recapture Notice given under
Article 7 hereof as to Recapture Space which constitutes less
than all of the Premises, Tenant shall be entitled to a
reduction in Annual Rent from and after the effective date of
such termination in an amount equal to the greater of (a) the
number of square feet so recaptured or terminated multiplied
by the greater of $1.72 or (b) the actual annual fixed rent
("Recapture Space Fixed Rent") (exclusive of any additional
rent on account of taxes, insurance, CAM charges and the like)
payable under any lease (a "Recapture Space Lease") entered
into by Landlord at such time or thereafter (but during what
would have otherwise constituted a part of the five (5) year
term of this Lease) with respect to Recapture Space allocable
to any period which otherwise would have been coterminous with
the balance of the term of this Lease (but after deducting
from such Recapture Space Fixed Rent, any portion thereof
allocable to leasehold improvements paid for by Landlord for
such new tenant and for leasing commissions, moving expense
allowances, tenant inducements and other expenses incurred by
Landlord in connection with such Recapture Space Lease, in
each case, amortized over the term of such Recapture Space
Lease). In no event shall Tenant be entitled to any excess
rent (fixed or otherwise) which Landlord may receive on
account of leasing Recapture Space which, in the aggregate,
ever exceeds the Annual Rent hereunder, it being understood
that at such time as Tenant's Annual Rent is reduced to zero
as a result of reductions or credits which apply under this
Section 17, whether as a result of leasing or releasing the
Recapture Space or otherwise, then all of Tenant's rights to
occupy any premises shall terminate effective as of such date
(but not sooner than December 31, 1996). Effective upon the
termination of this Lease as to any such Recapture Space, this
Lease and Tenant's Pro Rata Share hereunder shall also be
modified, effective as of such date in accordance with the
formula set forth in Section 4.6 to take into account the
reduction in the size of the Premises (except that Tenant's
Pro Rata Share of Common Outside Area Expenses, as opposed to
CAM Charges, shall be reduced ratably based on the percentage
of space within the Premises which is, from time to time,
recaptured (i.e. if 10% of the space is recaptured, then
Tenant's original Pro Rata Share of Common Outside Area
Expenses shall be reduced by 10%, i.e. 2.5%, to 22 1/2%).
Tenant's share of utilities shall, if utilities for any
Recaptured Space and Tenant's remaining space cannot be
separately metered, be shared pro rata between Tenant and such
new tenant in proportion to the total space occupied by each
such tenant in relation to one and other. i.e. If Action's
space is reduced by 40%, then effective upon the date when a
new lease is entered into for such recaptured space, Tenant
shall be responsible only for 60% of the submetered
electricity for such space and 60% of gas, sewer and water
utility charges related thereto unless, in any such case,
Landlord elects to have such utilities submetered. The cost
of any such submetering shall be borne by Tenant and, in such
case, Tenant shall pay for utilities based on the submeter
readings. Except that notwithstanding the provisions of this
sentence to the contrary, if either Landlord or Tenant so
requests, then the cost of electricity charges for electric
service which commonly serves the Recaptured Space and any
portion of the Premises then remaining under this Lease shall
be determined by the utility company (or if the utility
company will not do so, by an electrical engineer selected by
Landlord) and Landlord shall have the right to periodically
(not more often than once every six (6) months) have such
share of electricity costs recalculated and re-estimated by
the utility company or electrical engineer. Further, in the
case of any other utility (except electricity) which commonly
serves the Recaptured Space and the then remaining space
included within the Premises under this Lease, either Landlord
or Tenant shall have the right to have Tenant's share of such
utilities determined by the utility company furnishing the
same provided such utility company is willing to make such
determination and, in such case, where the utility company
makes such determination, Landlord shall have the right to
have the utility company, from time to time, re-estimate the
Tenant's share of such utilities but not more often than once
during any six (6) month period. If either Landlord or Tenant
elects to have an electrical engineer determine Tenant's
electric usage or the utility company to determine any other
utility usage of Tenant, then, until such time as the
determination of such electrical engineer or utility company
is made, Tenant shall pay its pro rata share of utilities on
the basis otherwise herein stated and there shall be no
readjustment for any period prior to the date when such a
determination is made by such electrical engineer or utility
company.
7.2. Upon exercise of any such Recapture Right, Tenant
shall no longer have the exclusive right to use the Action
Outside Area nor the parking spaces located therein as
provided in Article 1 but, rather, shall, at the option of
Landlord, either have the non-exclusive right to use the
Action Outside Area in common with any such new tenant or
tenants and, if Landlord so elects, Tenant's rights in the
Action Outside Area insofar as it relates to parking shall be
limited to the proportionate number of parking spaces located
therein based on a fraction, the numerator of which is the
number of square feet remaining within the Action Premises and
the denominator of which is 57,925. Landlord shall have the
right to designate exclusive parking areas and exclusive
parking spaces for any such new tenant and shall have the
right to restrict Action's parking spaces to a defined area
within the Outside Common Area as Landlord may require.
7.3. As and to the extent required by Landlord, if access
to any space of a new tenant which leases or occupies
Recapture Space requires common access through any Premises
which remain under this Lease, Action agrees to grant such
common access and to fully cooperate with Landlord so that all
necessary utilities and access are provided to such new space
through any remaining premises under this Lease. If Landlord
exercises a Recapture Right from time to time with respect to
less than all the Premises then remaining under this Lease,
the balance of space which does remain as Premises under this
Lease after giving effect to such Recapture shall be space
comprised of not less than 2,000 continuous square feet with
access to and from such remaining space to an entrance outside
the Building by any manner or means which Landlord may provide
(including, without limitation, access through the space of
another tenant). Without limiting the generality of the
foregoing, it is understood that if Landlord so elects,
Landlord could elect to recapture all of the Premises except
the mezzanine area and provide Tenant with access from the
mezzanine outside the Building through space leased to other
tenants.
7.4 Landlord shall have the right in connection with the
exercise of a Recapture Right to enter into the Premises or to
permit its agents, contractors or subcontractors or any new
tenant or their agents, their contractors or their
subcontractors to enter into the Premises for the purpose of
making such improvements and alterations as required in
connection with such new lease but, in connection therewith,
the parties agree to use good faith efforts to minimize
interference with Tenant's use of any remaining space.
7.5 Upon request of either Landlord or Tenant, the
parties shall enter into an amendment to this Lease consistent
with the foregoing within fifteen (15) days after request by
the other, although failure to do so shall not affect the
operation of the provisions hereof, all of which shall operate
automatically. Subject to Section 7.3, Landlord shall have
the right to designate any parts of the Premises as Landlord
may require for recapture pursuant to the provisions of this
paragraph.
7.7 Any assignment of this Lease by Tenant and any
subletting of all or any part of the Premises shall, in all
cases, be subject to the rights of Landlord under this Article
VII.
7.7 At Landlord's option, Landlord may assume all or any
part of the responsibilities of Tenant under Section 4.7(a) of
this Lease or may delegate such responsibility to any new
tenant and, in any such case, Tenant shall be responsible for
its pro rata share (such pro rata share to be based upon a
fraction, the numerator of which is the space remaining under
this Lease and the denominator of which is 57,925 with all
payments to be made to Landlord or its designee, as the case
may be, on a monthly basis, based on Landlord's estimate of
such costs with any overpayment or underpayment to be paid by
the party responsible therefor within thirty (30) days after
receipt of the Landlord's final statement in each fiscal year
for the total costs for such year. Landlord may also elect to
have Tenant continue to perform any or all of such obligations
as they relate to the remaining space under this Lease if
Landlord so elects.
7.8 Tenant agrees that it shall quit and surrender any
Recapture Space in the condition required under the Lease not
later than the effective termination date applicable thereto,
time being of the essence.
IN WITNESS WHEREOF, the parties hereto have executed
this Lease on the day and year first above written.
LANDLORD:
ALLEGHENY CAPITAL GROWTH
LIMITED PARTNERSHIP
By: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
TENANT:
ACTION INDUSTRIES, INC.
By: T. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President and CEO
JSK0015
September 25, 1996