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HomeMy WebLinkAbout96-01563 l:' , ~ ~ r' L-J ~ t$. [ // I i , . I j ~ 1 \~I J I -.. ,_.. fl.; t, .. r'~ t\ l~ ~) t!: ~ ()' i ~ r~ h'" r l.~" . , (; G.: \. ~ t ~'. :'~J " .. z "' '" ~ '" ~ i c:: '" ~ Z r: '" 0 C'; ~ . 'r.~, ~ ~ -:];-r- .., m~~ /~.J';":i -I ,1~23 ~ :::~;::::; '..-: /r. tI'J "' '" 1'1'1 ~ 0: 0 ,. ,. :J 0 ;;! " . . , . . . . . .. <4 .' LIlxonm 8gU:A1UI PLAZA PROPIRTIB., Plaintiff I. THI COURT or COMMON PLIAB CUKBmRLAKD COUWTY, PB"SYLVABIA .0. "-15'3 CIVIL TIRH v. JlDS I.C., lIDS HBALTlI GROUP LIMITID, JlBTPATlI, INC., and COJUlING CLUIICAL ' LABORATORI18, UIC., Defendants ACTIO. rOR DAKAGBS JURY TRIAL DBKAKDBD DBrBlfDAJlTS' ANSnR '1'0 PLAINTIrr' S rIRST AMBlfDBD COMPLAINT TOGBTHBR WITH )lB. KATTBa ABD COUNTBRCLAIM ANS.BR AND NOW, comes the Defendants, by their counsel, and respond to Plaintiff's Complaint as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted in part, denied in part. While it is admitted that the Lease provided that the originalteI'l1l thereof was due to expire on August 31, 1995, it is denied that the lease terminated on August 31, 1995 whereas the parties in fact intended that the Defendant, Corning, would continue in occupancy and that they' would enter into a new lease as evidenced by writings and agreement between the parties. 8. Admitted. 4 , . , 9. Admitted. 10. Admitted in part, denied in part. It is admitted that the rental amount for the' premises after August 31, 1994 was $8,819.56 to be paid by Defendant, MDS Inc. accordina to the lease terms (emphasis added). It is denied that Defendants are so obligated tor ~easons hereinafter set forth in paragraph 7 and Defendants New Matter and Counterclaim. The allegations set forth in paragraph 10 also constitute conclusions of law to which no response is required and same are therefore denied. 11. Admitted. 12. Admitted. 13. Denied. The allegations set forth in paragraph 13 constitute conclusions ot law to which no response is required and same are therefore denied. To the extent which a response may be required, it is turther denied that the Defendants, MDS Inc. and MDS Health Group Limited remain liable since by the express provisions of the Assignment of Leasehold Interest to Defendant, Metpath, Inc. ("Assignment") attached to Exhibit A of Plaintiff's Complaint, MDS Health Group, Inc. (predecessor to HOS Inc.) was released from all such liability as ot January 1, 1992 and MDS Health Group Limited never was under such liability as it, was never a party to the Lease. It is turther denied that Defendants, Metpath, Inc. and Corning, have not discharged the Tenant's obligations under the Lease. 14. Admitted in part, denied in part. It is admitted that the Lease by j,ts terms was due to expire on August 1, 1995 it is denied that said lease did expire or terminate on August 31, 1995 as the Defendant's occupancy continued with Plaintiff's consent in contemplation of a new lease as aforesaid. 2 , J 15. Denied as stated. Both Plaintiff and Detendant, Corning Clinical Laboratories, Inc. ("Corning") negotiated for a lease extension or a new lease, which did not materialize for reasons hereinatter set torth. 16. Admitted. 17. Admitted in part, denied in part. It is admitted that Section 19.1 of the Lease contains a provision dealing with rent payments to be made if the Tenant shall not surrender the premises and be holding over "atter the expiration of the Lease". It is denied that Defendant, Corning, ever was a holdover tenant within the context contemplated in said section 19.1. Paragraph 17 also contains conclusions ot law as to Defendant's obligations to pay double minimum rent to which a response is not required and same are denied. By way of further denial, Detendants incorporate herein by reterence the allegations set forth in Defendants New Matter and Counterclaim. 18. Denied. The allegations set forth in paragraph 18 refer to the terms and conditions ot the lease, a written instrument which speaks for itself, and same is therefore denied. It is specifically denied that Defendants removed improvements, installations, additions, partitions, hardware, light fixtures and non-trade fixtures, from the premises, which were property of the Plaintiff. 19. Denied. The allegations set torth in paragraph 19 constitute conclusions of conclusions of law to which no response is required and same are therefore denied. It is further denied that Defendant's are so obligated for the reasons set forth herein in Defendant's Answer, New Matter and Counterclaim, which 3 -.....,; .. . .' , are incorporated herein by reference. 20. Denied. The allegations set forth in paragraph 20 constitute conclusions of law to which no response is required and same <<re therefore denied. It is further denied that the Defendant's are so obligated for the reasons set forth herein in Defendant's Answer, New Matter and Counterclaim, which are incorporated herein by reference. 21. Admitted. RESPONSE TO PLAINTIFF'S COUNT I 22. Defendants incorporate herein by reference paragraphs 1 through 21 of this answer as if set forth herein at length. 23. Denied. Defendants incorporate herein by reference the responses set forth in paragraphs 7 and 14 hereof. It is further specirically denied that Defendant was a "tenant at sufferance". Moreover, the Defendant, Corning, has vacated the property .s aforesaid. The allegations set forth in paragraph 23 also constitute conclusions of law to which no response is required. 24. Denied. On the contrary Defendant, Corning, has paid' excessive rent during this period for reasons as are hereinafter set forth in Defendants' New Matter and Counterclaim. 25. Denied. The allegations set forth in paragraph 25 (a through d inClusive) are denied for reasons set forth hereinafter in Defendants' New Matter and Counterclaim which are incorporated herein. The allegations set forth in paragraph 25 constitute conclusions of law to which no response is required. It is specifically denied that any sums are due or owing to Plaintiff and at all times material and relevant hereto Defendants occupancy of the premises was lawful and with the consent of 4 " , Plaintitt. ~6. Denied. DefQndants' response to paragraph 18 is incorporated her.ein by reference, as it set torth at length. Atter reasonable investigation Defendants are without sufficient knowledge or information to torm a belief as to the truth of the averment, and same is therefore denied. WHEREFORE, Defendants, respectfully request your Honorable Court to dismiss Plaintiff's Complaint and enter jUdgment accordingly in tavor of all Detendants plus its Attorneys fee. and costs ot these proceedings. NEW MATTER 27. Answering Defendants incorporate the averments ot paragraphs 1 through 26 and 38 through 66 hereof as it same were set forth herein at length. 28. Plaintiff's claims for excessive rent and money damages are barred by the principals of Accord and satistaction. ~9. Plaintitfs claim both as to possession and as to excessive rent are barred because ot Plaintift's express con.ent to Defendants' occupancy ot the leased premises atter the original lease term was due to expire. 30. Plaintiff's claims tor excessive rent and money damag.. are ~arred by the Statute of Frauds. 31. Plaintift's claims for excessive rent and money damage. are barred by the doctrines of Equitable and Promissory Estoppel. 32. Plaintitf's excessive rent and money damages claims are barred for Failure of Consideration. 33. Plaintiff's excessive rent and money damages claims are barred for the reason of fraud and/or unilateral mistake. 5 "-..-., , .. 34. Plainti:t's excessive rent and money damages claims are barred for Illegality (i.e. violation of 42 U.S.C. 1395 nn requiring rental rates to be consistent with "fair market value"). 35. Plaintiff's excessive rent and money damages claims are barred for equitable doctrine of Laches and Unclean Hands. 36. To the extent that any of Plaintitt's claims for excessive rent and money damages are deemed to be claims to which contributory negligence applies, Plaintiff's recovery, it any, should be reduced or eliminated in accordance with such doctrine. 37. Detendants are entitled to set off for sums due and owing as set forth hereinafter in Defendants' CounterClaim, paragraphs 38 through 66, which are incorporated herein by reference. WHEREFORE, Defendants hereby request this Honorable Court to dismiss Plaintift's Complaint and enter JUdgment in favor of the Defendants plus its attorneys' fees and costs o~ these proceedings. COUNTERCLAIM COUNT I ACTION FOR DAMAGES 38. Plaintitf on the Counterclaim is Corning Clinical Laboratories, Inc. (as successor in interest to the prior tenant Oefendants under the lease, i.e. Metpath, Inc. and MDS, Inc.) having a business address at 900 Business Center Drive, Horsham, PA 19044. 39. Defendant on the Counterclaim is LeMoyne Square Plaza Properties (herein "LeMoyne"), having a business address at 4 6 LeMoyne Drivo, LeMoyne, PA 17043. 40. On or about May 24, 1995, Martin Investment Group ("Martin"), Agent tor corning, contacted LeMoyne's agent/broker by fax regarding the renewal of subject Lease dated August 6, 1990, a true and correct copy of which is attached as Ellhibit A to Plaintiff's Complaint and in an eftort to determine what the terms and conditions would be with respect thereto, including Corning'S request for a reduction in the size of the leased premises. A true and correct copy of the May 24, 1995 fax of Martin is attached hereto marked as Exhibit A and incorporated herein. 41. Approximately six C61 weeks later on July 5, 1995, Plaintiff's Agent, Arthur Campbell ("Campbell") agreed on behalt of LeMoyne by letter that a reduction in space and in the rental rate would be acceptable assuming some other details were reconciled, i.e. parking spaces, nature of renovations, if any, metering of utilities, and further indicated to Corning that "they are a desirable tenant that Landlord hopes will remain in the building for a long time". A true and correct copy of Campbell's correspondence dated July 5, 1995 is attached her5to marked as Exhibit B and incorporated herein. 42. One week later on July 12, 1995, Martin responde4 to Campbell in writing that (a) it, Martin, is authorized to represent Corning and included evidence thereof (Which evidence Campbell could have requested when discussions regarding a renewal were initiated in May), (b) basically all items in campbell's earlier letter were acceptable to Corning including that certain minor renovations needed to be done in consideration 7 . , with the down sizing of the premises and (c) that the rental rate would have to be brought into conformity with the "Stark Law" which is the federal statute referred to above in New Matter, which law mandates fair market rentals in all leases with physician landlords, the principal ot LeMoyne being a physician. A true and correct copy of Martin's reply and correspondence dated July 12, 1995 is attached hereto marked as Exhibit C and incorporated herein. 43. Approximately two (21 months later on september 7, 1995 (and after the initial lease term was due to expire) Campbell torwarded Martin a copy of the proposed lease provisions for a three (3) year term, without any reduction in space (which was not what the parties had agreed to) and at a rental rate that was more than 20' over fair market. A true and correct copy of the proposal to lease is attached hereto marked as Exhibit D and incorporated herein. 44. Promptly atter receiving said proposal Martin contacted Campbell and advised him that (a) corning did not need the 5,228 square feet ot space and that based on LeMoyne's prior assurance, corning expected that the lease would only be for 3,600 square feet and (b) that the rent was not close to fair market as required by Stark Law (which rental rate Corning had confirmed by a real estate appraiser and so advised campbell). 45. At the end of this discussion campbell advised Martin that he would review with LeMoyne the two (2) issues, i.e. size and rental rate, and that the Campbell, would get back to Martin promptly after checking his own sources as to the question of fair market rental. 8 -~, . 46. During the month of September, October and November, Corning received no communication from Campbell and/or LeMoyne notwithstanding various phone calls from Martin on behalf of Corning's representatives who are responsible for the operation of its laboratory facilities. 47. Not underst~nding why it was taking seven (7) months to negotiate a lease extension, Corning in an attempt to get LeMoyne's attention delayed payment on the December 1995 rent check which achieved the desired result in that Campbell finally called Martin and in etfect advised him that the Landlord, LeMoyne, really doesn't have to do anything because he will make more money enforcing the holdover provisions of the Lease (which would yield a rental in the range of $41.00 per square toot) as opposed to the $13.39 per square foot that LeMoyne offered in September. 48. At this juncture and after receipt of a letter dated December 20, 1995 from LeMoyne's counsel, a true and correct copy of which is attached hereto marked as Exhibit E and incorporated herein, Corning was suddenly made aware of the deception on the part ot LeMoyne and its Agent, Campbell, and engaged its own legal counsel to submit an offer in an effort to "consummate lease negotiations" as suggested by LeMoyne's counsel in the aforesaid letter. 49. Corning's counsel submitted a written offer by letter dated December 28, 1995, a true and correct copy of which i. attached hereto marked as Exhibit F and incorporated herein, to LeMoyne's counsel outlining the terms upon which the Lease was to be e~tended, which offer basically incorporated the earlier 9 writing~ between the parties, except that the rental rate was at $12.00 per square foot, being somewhat above fair market for an "as is" deal as opposed to LeMoyne's earlier ofter ot $13.39 square foot, which would equate a market rate it Landlord performed significant refurbishment work in the leased premises, which corning did not however request. 50. LeMoyne's counsel submitted a counter offer by letter dated December 29, 1995, a true and correct copy ot which is attached hereto marked as Exhibit G and incorporated herein, to Corning's counsel which included alternative proposals and tor the first time since the expiration of the original Lease term added a requirement that Corning would have to pay the "holdover rent" of approximately $41.00 per square foot for the period occupied by Corning from August 31, 1995 through February 28, 1996 (it Corning was to occupy the 3,600 square feet as requested in July 1995) or from August 31, 1995 through January 15, 1996 if Corning would continue to occupy the original 5,228 square feet, which Corning expressed on various occasions that they did not need. 51. The counter proposals from LeMoyne were submitted to Corning for its review at which time Corning began or had begun paying rent at the rate of $3,600.00, which was based on the then tair market rental of the premises. 52. Upon receipt ot the atoresaid $3,600.00 rent payment, LeMoyne's counsel demanded the holdover rent ot $41.00 per square foot and in response thereto corning increased the monthly rent to $8,819.56 ($20.24 per square foot - the monthly rent during the last year of the Term) "in a spirit of good taith" while the lO counter proposals were being evaluated. 53. Notwithstanding the fact that Corning as tenant was paying a rent in excess ot (a) the market rate and (b) what the parties had agreed to in their earlier discussions and writings, i.e. from July through September, 1995, LeMoyne began to insist that Corning was a holdover tenant and even if an agreement or an extension was established, would still be liable for the holdover rent of $40.50 per square foot. 54. Not realizing that the LeMoyne had been misrepresenting, defrauding and deceiving Corning in not declaring its real intentions during the ongoing negotiations for a lease extension that continued through the many months preceding and following the expiration date of the lease term, Corning had been laborinq under the reasonable assumption that LeMoyne intended to enter into a new lease and/or extend the term as the parties had agreed in their earlier writings. 55. As a result of LeMoyne's actions, Corning had foregone the opportunity of seeking new quarters within which to relocate the business operations they had been conducting at the leased premises. 56. Confronted with the abrupt change in LeMoyne's position regarding the extension terms, Corning had no alternative but to vacate the leased premises and notice of its intention to do so was provided to LeMoyne's counsel on March 13, 1996. 57. During the period, from September 1995 through March 31, 1996 under duress from LeMoyne, Corning was required to pay $8,819.56 per month rent, a rate being $8.75 per square foot above fair market rental value, and only did so as an act of good 11 . faith and because LeMoyne as Landlord was demanding $17,639.13 per month ($41.50 per square foot). 58. Corning subsequently secured a lease for 4,050 square feet of comparable space at another location in the vicinity for a term of three (3) years at an average rental rate of $10.15, which lease was made by Corning at "arms length" and reflects a tair market rental rate. 59. Had LeMoyne as landlord indicated in May 1995, when Corning first inquired as to the renewal terms, that the renewal rents would be considerably above fair market and that Corning must lease all of the 5,328 squaru feet, LeMoyne's proposal would have been rejected and Corning would have vacated the leased premises upon the expiration of the lease term and sought the lease of an alternate location to conduct its operations. 60. Because of LeMoyne's deception coupled with Corning's reasonable reliance on the written representations of LeMoyne and/or its Agent, Campbell, Corning suffered damages in the amount of $37,757.83, being the difference between the amount of rent that Corning would have paid (and is now paying) at its new location and the amount of rent that it paid under duress to LeMoyne for the leased premises from September 1, 1995 through March 31, 1996. WHEREFORE, Corning respectfully requests your Honorable Court to enter judgment in favor of Plaintiff on the Counterclaim, Corning Clinical Laboratories, Inc. (representing all Defendants) and against LeMoyne Square Plaza Properties in the amount of $37,757.83 plus interest from April 1, 1996, reasonable attorneys fees and costs of these proceedings. 12 COUNT II ^CTIO~ FOR ACCOUNTING 61. corning, as PlaIntiff on this counterclaim against LeMoyne, as Detendant, incorporates by reference the preceding paragraphs 1 through 60 as it set forth herein more tully, this Counterclaim being asserted in addition to Counterclaim Count I. 62. From time to time during the original term ot the lease Corning, or the other predecessor in interest Defendants, were required to and did pay additional rent pursuant to Article V at said Lease. 63. Upon intormation and beliet corning was charged excessive amounts for the expenses for which it had agreed to reimburse LeMoyne, i.e. for its pro rata share of all expenses in' excess of $3.50 per square ~oot per year. 64. The billable pro rata expenses to Corning and predecessor in interest Defendants, were not to include repairs to the structure and/or the roof, although the latter was in a continuous state of disrepair causing water leaks in the leased premises atter rain or snow storms, nor were such expenses to include janitorial service or window cleaning, as such were tenant obligations. 65. The additional rent billed to and paid by Tenant (i... in addition to the $2~.25 per square foot base rent) tor ~iscal year ~994-1995, as well as prior lease years commencing September- ~, 1990, were excessively high by comparable otfice building standards tor buildings similar to that where the leased premis.. were situated. 66. To the best information and belief of Corning, the 13 . amount of overbillings by LeMoyne were in excess of $5,000.00. WHEREFORE, the Plaintiff on the Counterclaim, Corning Clinical Laboratories, Inc., hereby requests that your Honorable Court Order the Defendant on the Counterclaim, LeMoyne Square Plaza Properties, to render a full and complete accounting of all expenses billed to and paid by Corning and its predecessors during the lease term including with such accounting all invoices, receipts and other evidences of payments made by LeMoyne so that same may be accurately verified. Respectfully submitted, <*RdL~I(~,- -' 0'0 n . Hagil ,Es ire Attorney I. D. 'l7106 Campus Boulevard '150 Newtown Square, PA 19073 Date: 7-"/'?~ ::.L- r, Eaq. Attorney I. D. '07115 Stanley J.A. Laskowski, Attorney I. D. '37422 1300 Linglestown Road suite 304 HarriSburg, PA 17110 (717) 234-3911 Esq. Attorneys for all Defendant:. 14 .' . X II I BIT "A" - E X K :I B :I 'l: "S" . . ~ General bllilding. lobby i\1ld ~ounds li:hting,hall b. the n:.qpon~ibililY of the L..e.lsor. Lessee ~haJ1 bll re~p(msjble (or paym.eOLS of utilities includi!lg elec:trlc: for healin. and air-conditioning (ttV....C) wtuch will be :jeparalely metered. as well a.s all WatJ:l' sewer. and gas to lba lC::i.:led p~n1ls"s. 7. Place of Payment. All r=nt'l ~ha1l be payable without ~or notlce or dclIWlcl at tho office of Le~SOf: cio Women's Medical CenICT. One temDyne Squaro Plaza. l.cInoync, P A 17043 or at .uch other plJCe as Ltssor may from limo to rime design~ by notice in writing. Notices to Lessee shall be sent to K.systone Medical Systems, Inc.. 3 Lemoyna Drive, Suite 100, umoyne, P Po. \ 7043, or to 3I1Y other i1ddl'4.1S that L.e~.. shall so dluiit14le in writing to lessor. 8, Affirmative COVeD3I1ts of Lessee, I) Lessee covllnmts and agrees chat Lessee wW without do:mand. .f~~ tba rent and all othet cbarges bet?Jln re.'ll!r'Ved u rent within (7) seven days of th. clue and at the placo thalthe ~ame are m3de payable, without fail. lUld if Lessor shall at any time Of times accept sal4 rent or nmL c:harges afret ~ same shaJJ have become due and payuble, IUch acc~W\CCI shall not exc:u.~ delay upon subsequent occuions, or constitute or be construed as a waiver of any of Lessor' ~ rights. Rental paid wr tM 7 d,a.y grace period shall have a penalty of five percent (5%) of monthly rent. b) RequiremenlS of Public Authorities. Comply with any ~qUoiremenlll of my of the CQn~ticuted public authorities, and with the temII Of any Commonwealth or Federal slaCUlI: or local ordinance or rclUlation applicable to Lessee or tAssee's use of the demised I'lU'Iises. and save Lessor harmJe.1S (rom penalties. fines. coats or damages resulllng from failure to do so. c) Fire. U:l3 every reasonable pr~c:lution against full. d) Rule:! and R:guJations. Comply with rules and regulations ot lessor prolllll1pted as herei.natter provided. II) Surrender of Possession. Psac:eably deIhlii' up llI'Id summder po~ion 01 the dcmi3ed ptemiJle.'\ [0 the lessor at tbc Illllintion or SOOller cmninlllion of lbia 1,_. promptly tlcllvcring to LASSor at ~ol"s office all kays tor the dcoWed prcmisa. t) Agency 011 Removal. Tho Lessee agrees that if, with !he wrLum permission at Lessor, Lessee shall vacate or decide at any lime during thO turn of this lease. or any renewal thereot. to vacate the herein demi:;ed premises prior to me expimdoa of this \case, or any renewal hereof, Lessee will aot cauSll or allow any other a&llnt 10 tepreSenl Lessee ill any sub-Iettini or re-Iettina of the demised premises othet tIw1 an aaem apptOVCc1 by Ibe Lessor Lemoyne Square PlilZ:l Propc:ties, such approval not 10 ~ ~onably withheld. Should Lessee do so or aIIl:mpl to do so, tbc Lessor L4moyuo Squarl) Pl~ Propertie~ may l'llnIOVll any slgns that may be ptacc:d on Ot about the demiacd premises by such OIher agent wimout any liability to L.:ssor or to said l&ent, the lA.slIe assuming all responsibility ror such action, . .. .., ;' g) P'.ultini' The parties ~gree tl'..loC the !;larlc:lnj. lot shall be for the 50le use of customers. client:i. ell'lployee~ aI1d 8u~m of tenanlS in One Lemoyne Squ3le Plaza. NothJna ill th~ pJJ3sraph shall be con3lIUed :0 cequire lAssor to monitor or enforclI the use of such 3pdl:eS, 9. Negatl Vll CovenantS oC ~~~ll. Lessee covenanl.5 and a~es that t.essell will do none of the following things without the consent in writing of Lessor first !lad W'ld obtained: (3) Use of Premises. Occupy d'te demi:;ed premises in any other manner or (or any other purpose than an office. (b) Sign~. Placc or allow to be plllUd any stand. booth, ~ign or show CiSSe upon the doorsteps, vestibulcs or OULSide walls or pavemcQtI or said p~lnises, or paint, place, erect or CAuse [0 be painte.-:l, placed or ancted any sian. projection or c1evise on or in any part of the premises. ,Le$iee shall remove any sign. projection or c1evicc painted, plaosd or erected. it permission hiSS not been Jranted and nlstore me walls, ere., 10 their former conditions, lit or prior to the eltpitatlon of this lease. In case of me b=h of this covelWll em addition to :lJl other camedies 8i..en to Lessor in case of blll.lell of any conditions or covanaalS of thi~ lease) Lassor shall have the privilege of removing said stand, booth, Ilin showcase. projection or c1evice, lInd re~torini said walls, lite" to lbeir former condition, and Lessee, at L4ssor's option, sh:U1 be liable to Lessor for any and all expenses so incurred by Lcs~or. Lessor will provide Lcss~ J sign fr;une for Les~ee'~ u~e of a ~iz. and design thar ,oincicles ",,;\l'! those ~urrently on the building. (c) Alterations, TmptovementJ. Make:1l1Y alterations. improvements, or additions to the demised premises, all alterution.~. improvements, IIdditiOlU or fllltucc:.. whether Installed before or afrer lbe execution of the lca.~e, sball remain upon lbe premises at ClIe explrarlon or sooner dele1Tllinatlon of this lease and become tItls propE:ttY of Lessor, unless Lessor shall, prior to the determination of this lease, have given written notice to llllssee to rcmove the same, in wbicl1 llvent Lesoee will camove such a1rcrarions. improvements additions iIIld re.torc the prcmisea to lbe same jood order and cOlIdltion in which they now are. Should Lessee fall to do so, L.e.ssor may do so, collecting. ill !..essor' s option, the COlt and ellpon:lll thereof from lLssec as additional 10m. (d) Machinery. Use or o~ any machlnery or equipment omer th4n offlce, lab, computer and communicatiotul equipment that, in Les.sor's Opi.oiOD. is l1atmlul to the building or disturbing to olller tcnants occupying otller plll1S thereot'. I O. Lc~or' s Rights. Lessee ~ovenanlS iII1d agrees mar Lassor shall have the riaht to do lbe foUowini things and mattcf':'l in and about tho demi:led pnI~tOS: (a) In!pcction of Premises. With r=ionable O1dvance notice and at all reasonable rimes by Le.ssor or Lessor's duly authorized agcnts to go upon lltJd inspect the demised premisas nnd every ~art thereof, anc:llor at Lessor's option to make cepllirs, alterations IIId adeJidoas to the cIelIlIsed prcmi.cs or the building of wltich the demised premiaes Is & pan. . . .~ Such repaint alteration:! Ot additioni slUll be made 50 OIS to noC dlSlUrb tbe ongoing use ot tI'Ie premise:! by Lessee during normll1 business hours. ' (b) Rules :loa RagulJtion.t. At allY time or times and i'rom tim.= to time such ru1e.s and regulations ~ in t.es~ot'~ n:3.S0nable judgment m.1y from tilIUllo time be DCCe.55aty for the saf.aty, care alId clcanlil!esa of the premise$, and for d1e preservalion of good OTder lhcn:in. Such rulu and ree,'uJalions sball, wben aolic", theteof is given 10 Lessee., form:L pIIIt of chis lease. (c) Sa.le or Renl Si~ . To display a hFor Sala" sign .II any lime, and :LIsa. after nodc:e from either party of ICltention 10 f4rmi.n:1te this leOlSe, or 1Il iIJ1Y time within three months prior 10 the e:ll:piruion of this lease. a "For Rem" sian. or botl'l "For RenC" iIIId "for SaI,," sisn8j and all of said signs be placed upon such plUt 0/ the premises iU Lessor may elect ane! may CODliIin such maliin' as Lessor shall require. Prospective purcbasers or llSnllC1lS authori~ed by Le:lS01' may inspect the prenWes at reasonable houn at any time. (d) Discontinue Facilities and Service. The Lessor It\:l.y discontinu~ all facilities furnished and services rendered. or any of them, by Lessor, Dot expressly covenanted far herein. it being undemood lh.at they constitulO no part of the consideration for this l~iU'. ) 1. Re.iponsibiliC)l of Lessor. (a) Tola! Deatruction of PtelIli:iell.. In the ~"ent that the de~d premises is tolally destroyed or :lO damaied by lire: or other casualty not occurring through sole faulc or gros.~ ~g\igence of the LeS3ee or those employed by or iIlldng for ~ss=, that the s=e CiUlnot be repaired or reslored witl'1lll a teasonable: lime, this lease,ball absolu!ely ce:l.Sc acd rerminala. and the rent sball abaa: for the bal3."lcc of the Illnn. (b) PlIrti..J Destruction of Prem.ises. [f the d~ge caused as above be only partial and such that the premises can be restored 10 their then condition within a reasonable time, the Lessor may. at Lc.q.~OT'A option. restore the same With reasonable promptnesS. reserving tile right to elllOr upon Ihe demlsed ptcmis~ for tbat purpose. The Lessor also re&cfVllS the rlaht 10 enter upon the demi~d premis~ whCllllverneCI!lSSiU)' to repair cIai11age cllU:lCd by fire or other casualty to the building of which the demised premis~s '5 il. part, even though the effect of ,ucb encry be to render the demised pmnise.5 or :L part thereof lDllenantabll. In eitl'ler event the rent shall be apportioned and ~ durins the time tI'Ie wsor is in pos~~ion, taking into accountthe proportlon of the demised prcmisCll rc:ndered unlOnantable and thIS c1uroltion of thIS Lessor's possession. (c:) ~air1 by Lc.~aor. Lessor shllll make such election to rc:pair the prc:miscs or rerminalrl this lease by giving Docke thereof to Les:sce at the teased premises within len days from the day Le350r received notice thai: the demised premises had been dcsl1'Oyed or dama&Cd by f1ft: or otber casualty. (d) DaJr.:LiC tor Interruption of Use. Le.'ISOr .~han Ilot be liable for any damage. compenslUlon or cl3im by reason of illecnveuiGllce or annoyance aruins from IN: necessity of Tepairina any fortlon of the building, the interruption in the use of me premises, or the tenn1l1adon of tllLS I"ase by reason ot lbe destruction of tbc premises. (e) R=presenlation of Condition of Premises. The Lessor has let the demised premises "Iu "Is". , (I) Zoninj. Otber tb;m (or office u.:lC which is alre~y 01I'l appravlold use for che prembes, it ill un.:lerstood and Qireed chat che Lessor hereof does not w=t or undertake: mat che Wsed sh:1ll be able: to obtain a pmnit under any Zoning Otdinance or ~iWa.rion for su.cb use., Lessee intends Co mw of che said premises, III1d narhing ill this le.,e contained shall obligate the Lessor to J.Ssist Lessee In obtainina said permits; the I.csseo furlher agrees that in the event a pennit Canllot be obtained by Lessee under any Zonini Ordin3l1ce or Regulation, tllis lease sh:1ll not terminare without Lessor's consent, and the bSll('e shall use the premisu only, in a manl\ln' pennilled under such Zoning Ordin3nce or Resulatioa, except ill meetinl buildout requirements. 12. Responsibility of Lessee. (a) Lessee agecs to relieve the Lessor !'rom all liability by tell5Q[1 of any Injury or damale to Uly person or property In the demised premisCl, ....hemer belonling to the Lessee or any othl:r penon, caused by any tire brukalle or leakage in any part or portion of the demised premises, or any part or portion or the building of which the demised premises is a part. or from warer, nL'\ or snow that may leal< into, is.'lUe or now from any pan of the said prem.l3es, or of the building of which the demised premisCl is a part. or from the drains, pipes, or plumbing work of the same. or from any place CT quarter. (b) Less= also i1gI'Wi to relieve the Lessor from all liability by t'C3:l0Q of any damaie or injury co 84Y persoo or tb.ing which IIllIY arise from or be due to the use, misuse or ;&buse of all or uny of the elevators, hatches, openings, stairways, hallwa.ys, of an~ kind whatsoever, which may eJlist or hereafter be erected or constrUCted on the said prelI\1$8S, or from lII1Y kind of Injury whicb may ariSll from any other cause wh,atscevcr on the said premises or the building of whicl1 the demised premUes is part. . I I , , 13. Miscellaneous AgreetllCllts and Conditions. (a) Effect of Repo.its 00 Rental. No CODtract entered Into or that lIUly be subsequently eatered lato by Lessor with Less. rcgardiDS tbi5 Lease A2rce~nt, tclarivc to any alteration, additions a.s required by any sw:b. contract, nor the mwng by Lessor or L=ssor's agent1 or contractors of such alterations, add.itions, improvemIlQt3 or ~ain shlIll in any way affect the payment of the rent or said other charges at the time ~~ In this 1ease, except those improvement.:! previou.:lly asrud upon to separare the splice as sketched. (b) Agency. It is hereby expressly aireed and underStOod that tile said Campbell- Banis COlIllllCrcilLl Realty, Inc. is actin, as agent only and shall not in any cventbebeld liable to the owner or to Lessee for tb:: fulfUJrncl1t or non-tu1.lllImcnt of my of the terms or conditions of this le.,e, or for an)' action or proceedings that may be taken by dl.c owner q.ainst Lessee. or by Lessee ag;unst the owner. 14. Re/lll:diCl of Lessor. If the Lessee - - '. ' , ' .. the benefit ot the punlC$ 1CI 1M tranaacdon in accordance with the RcaI F.1lllle Lltel1slng Laws of the Commonwealth or Pel1llSyIVlllia, and the Rules and R.elul;won~ i:lSu.d thereunc!llr, and shali be dispersed upon, the commenc:ment qt the Lease. This is a propoaal only, r<OT a bindins lIgreeTlH1nt. Jl.s purpose 14 to fal:'lIltate ne~tiadons pursWll1t to a formal, binding lease ~nt. It ia fUrther undCTSlood lhat neither party is bound lCIlM ab~ESlO1posals until said proposals an included InID a lease apemen!, and said. apen1l111t is cllecuwi by 08. and LESSEE. This proposal Is made thi!t_clay ot. W1lness: 199'. Lessee: Witness: lc.!sor: ' - ... . . .' ........~ ..... lit ...,...,.. <tA -'- ..,...,.IflIC.... ..... -.s"" .......... toe,..., ......t.. "'w. ..... .'lfUOC....... ...... ,." ..................J. .J('."__~ ......" 0 ........ .......~ .......-Ai....ew.....~ .......,........,. MCNlfS,WALLACI:& NURICK ATTOnNCY' AT LAW '00 "''I' '''CC' "0 .0" u.. ....."....11"4. ,.. ".....u.. ''''-''''7''',,1oIlO q rMIIIJI,.)J'UCV . c...." ...... . ........ ~I\.. .....a.~',,. ....... ..n...... ''''''(11I ~ ........... ....""....., ....... ..". ~.CI. .... ."10................ - ."'1........,, ......,...... ...... J......".c..... ~. "'" &0Iwj .....ct ~ a..tH.,.. ......,CoI..~1IW'h' ......ua........, --.-. 4 ....... ~.\U'h'.. ....., -...... ("'......""""". .~~. "'ld .- ....,.... ~, ...........~ ecHI.'" 1oV4C.. '-"'..9t\Ce ,....,...~ iIfI,.,... ...... ."'" C...... _....i ~"C...........t'O .....t. "c,. ........... "l\4lrt.. ..........,.,., , - PeCtmb.t ~O, lP,S In ~,: ~BMO~NB 'QUARE ~LAIA PROP.ar:!S O~~ '~1.: 07~S'~OOOI Mr. D'Vid Sawe, C:en.~al Manlier Het".t", %'1c. '00 Buetnee. Clneer Url111 Horeh.m, PA 1'O~4 oo.~ ":1'. Zewe: tAX: 2f'.'S?-~397' CIC~1UiIEO JI1UZ; Ill!:1'VRN llF.C~r P1' ~'Q.(J!:S'J"D Thl. r~rm t'pt..ents the own.r ot 4 Lemoyn. Or1ve, Lamoyne, Psnneylvlnia, OCl:upied In part by your "'UUat., )los Ife&lth Crol.lp, 1n<:. I "HDS"), un4el' thllt 1.... agreement dllted Auguot I, 79'0. fho stated term ot tho lease expired on AU9l.11t 31, 7995. Although there have been cngOing CommuniGlt~on. butw..n tho o~n.r'. a;8I1t, Arthur D. Campb.ll of Cempbell-O.trt8 Commarctal Re.lt~, Inc., and your IgAnt, .. Hr. Plu1 Cilbert ot MArttn lnveatment Croup, Ino., Of Plymouth Me.ttng, to dllte tho.e dleou..10ns have not g8nerate4 a new 1..... Commenc1ng ln September, MOa ha. mid. .. payment monthly, the m~$t reCant ot which ~.s rel:eiva4 on or .bout Ceeember 1. Th. Oecembet payment ~.. depoaitod, _nd there.fter, oUr cltont wa. advl,.d that the isauing bank I'afuled payment due ~o a atop o~d.r given On Or about Novemb.r ~n, "'5, Wb40h ~..ult. in aQvet~l 0' our Cl~ent's cbecks betn9 dLshono~e4 'O~ tnautttotent funde. A1tho~gh Our C11en~ 1.t~ a Yolcemail daYI .~o wl~h Ha. ~i'enha~a .e.~1ng an e~plan.tLon, none h.s b.en tendered. QlvQn the l&ak of reepoR_e, WQ can only ...ums that the atop Order Was &n 1ntent40nal act, IIn4 aa such, 1n Our view, COnstitutes an act of bad fafth. In any Gvent, no payment has been made. tOr th~ Month ............. -....- .....,.~ ...........-.... ...............-.... ""..,. "'fa ....... -. -.....- -"....... --..- ---- -...- --...- .. J It ...,"" .......-t..~ - llic1lard w. 't:e~CA, I.quir. HcN.... wallac. . MUrlck D.cember 21. 1995 "'age TwO Ie the abOV. is aee.ptable to the landlord, ple... advise. RJ.c:hard, and _ ean put tog.ther an extena1an &gTeelllent en IllUtually aeceptable ten18 inco:porating the ~ points. Sincerely, JJH/:ll. .. ~ Corning"). Upon information and belief, Defendant. Corning is affiliated with Defendant Metpath. 6. By lease dated August 6, 1990, Defendant MDS Health Group, Inc. leased from Plaintiff approximately 5,228 square feet of shell space plus 49 square feet of common area space and appurtenant parking spaces located at 1 Lemoyne Square, Lemoyne, Cumberland County, Pennsylvania (hereinafter the "Premises"). A true and correct copy'of the lease is attached hereto and made a part hereof as Exhibit "A" (hereinafter referred to as the "Lease") . 7. Pursuant to section 2.1 of the Lease, the original term of the Lease commenced on September 1, 1990 and terminated on August 31, 1995. 8. Pursuant to section 3.1 of the Lease, Defendant MDS Health Group, Inc. agreed to pay minimum rental in the amount of $87,070.56, in installments of $7,255.88 per month, during the first year of the Lease. 9. Section 3.1 provides that the minimum rental will increase by five (5) percent each year of the original term. 10. In the final year of the original term of the Lease, which commenced on August 31, 1994, Defendant MDS Health Group, Inc. was obligated to pay the sum of $8,819.56 per month for minimum rental of the Premises. - 2 - ~ 11. Pursuant to Section 5.1 of the Lease, Defendant MDS Health Group, Inc. agreed to pay as additional rent a proportionate share of Plaintiff's cost of utilities, realty taxes and common area maintenance and repairs. 12. Upon information and belief, Defendant MDS Health Group, Inc. assigned its interest in the Lease and the Premises to Defendant MetPath on December 17, 1991. 13. This assignment does not relieve Defendant MDS Health Group, Inc. or Defendant MDS Health Group Limited of any liability under the Lease, including liability for minimum rent, additional rent, interest or attorneys' fees. 14. The original term of the Lease expired on August 31, 1995. 15. Defendants have not renewed or extended the Lease. 16. Defendants remain in possession of the Premises. 17. Pursuant to Section 19.1 of the Lease, in the event that Defendants remain in possession of the Premises after the Lease term has expired, Defendants are obligated to pay a sum equal to double the minimum rent. 18. Pursuant to Section 20.1 of the Lease, Defendants are obligated to pay interest on all sums due and owing to Plaintiff at the annual prime interest rate as established from time to - 3 - time by Dauphin Deposit Bank and Trust Company, Harrisburg, Pennsylvania, plus three percent (3%) per annum. 19. Pursuant to Section 20.1 of the Lease, Plaintiff is entitled to all attorneys' fees, court costs, charges and expenses if judgment in a court of competent jurisdiction is awarded to Plaintiff. 20. Pursuant to Section 20.11 of the Lease, all notices were to be sent to MDS Health Group Limited at 100 International Boulevard, Etobicoke, Ontario, Canada M9W6J6. COUNT I 21. Plaintiff incorporates herein by reference paragraphs 1-20 of the Complaint as if set forth fully. 22. The original term of the Lease has expired. 23. Because they failed to renew the Lease in a timely manner, Defendants are now tenants at sufferance. 24. Plaintiff is now entitled to possession of the Premises. WHEREFORE, Plaintiff Lemoyne Square Plaza Properties demands that this Court enter judgment for possession of the Premises at 1 Lemoyne Square, Lemoyne, Cumberland County, Pennsylvania in favor of Plaintiff and against Defendants MDS Health Group, Inc., MDS Health Group Limited, Metpath, Inc., and Corning Clinical Laboratories, Inc. - 4 - COUNT II 25. Plaintiff incorporates herein by reference paragraphs 1-24 of the Complaint as if set forth fully. 26. Defendants have failed to pay the full amount of rent since August 31, 1995. 27. As a result of Defendants' failure to pay the full amount of rent and to vacate the Premises, plaintiff has suffered and continues to suffer monetary damages, as follows: a. minimum rent for the period after the Lease terminated (September 1 through March 31) in the amount of $123,473.84, less payments of $61,736.92, resulting in a net obligation of $61,736.92; b. minim~m rent from March 31, 1996 through the end of the calendar month in which the Premises is surrendered at the rate of $17,639.12 per month; c. allocable share of the common area maintenance charges to be billed from January 1, 1996 through the date described in item b. above; d. interest on all monies due and owing, as set forth in Section 20.1 of the Lease; e. attorneys' fees and costs of suit, pursuant to Section 20.1 of the Lease. - 5 - Exhibit A ... ','."."""1 ...,.." ~"J It... "", ,q,,, !';;\ \.:1 . LEASE LEMOYNE SQUARE PLAZA THIS LEASE MADE AND EXECUTED, this ,~'I, day of 4v,;v~"" 1990, by and between Lemoyne Square Plaza Properties, a Pennsylvania general partnership, with its principal office at 4 Lemoyne Drive, Lemoyne, Cumberland County, Pennsylvania, (herein called "Landlord"), and MOS Health Group, Inc., (herein called "Tenant"). Landlord does hereby lease unto Tenant the "Premises", at the "Rent" for the "Term" for the "Permitted Use" upon and under the following terms and conditions: ARTICLE I. PREMISES Section 1.1. Landlord hereby leases to the Tenant and Tenant hereby leases from the Landlord the following building or portion of building (the "Premises") designated as Lemoyne Square Plaza, a retail/office complex, owned by the Landlord, and located at 1 Lemoyne Square, Borough of Lemoyne, Cumberland County, Pennsylvania (the Center). The term "Premises" shall mean approximately 5,228 square feet of shell space within the Center and 49 square feet of common area of the Center (which figure represents Tenant's proportionate share of the common area) as more particularly described in Exhibit "A". Section 1.2. Landlord warrants that the Premises and Center are presently in compliance with all municipal and other governmental laws, ordinances, building codes and rules and 4 . regulations. Landlord reserves the right at all times to alter the Center as long as the location and size of the Premises shall not be changed except as otherwise set forth in this Lease. Section 1.3 (a) Landlord is delivering that portion of the Premises which had previously been occupied by Raymond J. Shannon and Barbara M. Shannon t/d/b/a "Insty-Print" in an "as is" condition to Tenant and Tenant shall be responsible at its sole cost and expense for all demolition and repair of this portion of the Premises. The Landlord, upon delivery of the Premises, shall provide at its sole cost and expense the following work to the remainder of the Premises (the Landlord's work): (1) All sheetrock, perimeter walls including taping and spaCkling, which shall not include demising walls. (2) concrete floor ready to subgrade. (3) lay-in ceiling with standard fluorescent fixtures. . (4) three (3) separate 200 amp electrical service boxes and electrical outlets every eight (8) feet around the perimeter of the Premises. (5) installation of laterals to provide water and sewer service within the Premises for connection by Tenant. The Landlord may elect to allow Tenant to undertake all or a portion of the Landlord's work, with the amount of credit afforded to Tenant not to be less than the Landlord's construction bids for Landlord's work. Tenant shall deduct the 2 ~ . . amount of such credit from its fixed monthly rent, as set forth in Section 3.1, until said credit is satisfied in full. (b) Tenant at all times shall not permit a mechanic's lien or other similar lien to be placed on the Premises, Tenant's 'fixtures, equipment or the Center. In the event any lien shall at any time, whether before, during or after the Lease term, be filed against any part of the Premises or Center by reason of work, labor or services performed or materials furnished to or as a result of any work or act of Tenant, (its successors or assigns, agents, employees, subtenants, licensees or concessionaires), Tenant shall forthwith cause the lien to be discharged of record or bonded to the satisfaction of the Landlord. If Tenant shall fail to cause such lien to be so discharged or bonded with security acceptable to Landlord within five (5) days after being notified of the filing thereof, then, in addition to any other right or remedy of Landlord, Landlord may discharge the lien (or cause same to be discha~ged) by paying the amount claimed to be due or bond against the lien and all sums, costs and expenses, including, without limitation, reasonable attorney's fees, disbursements and court costs incurred in producing the discharge of the lien, procuring the bond or defending against such lien shall be due and payable by Tenant to Landlord upon demand. (c) All work done by Tenant shall be governed in all respects by, and be subject to, the following: 3 & . (1) Tenant agrees not to commence work on Tenant Improvements until Tenant has sacured,Landlord's written approval of the architect and al~ contractors to be used in performing Tenant Improvements and that of the plans and specifications to be submitted by Tenant to Landlord, which shall not be unreasonably withheld or delayed. Tenant Improvements shall be coordinated with the work being done by the Landlord to such a degree that performance of such Tenant Improvements will not interfere with or delay the completion of work by Landlord. Landlord shall have the right to require Tenant to furnish. a bond or other security in form satisfactory to Landlord for the prompt and faithful performance by Tenant of Tenant Improvements. In addition, Tenant shall furnish to Landlord copies of all permits, contractor's affidavits, waivers of lien and certificates of insurance covering all work. (2) Tenant Improvements shall be performed in a first-class workmanlike manner and shall be in good and usable condition at the dates of completion thereof. (3) Landlord shall have the right (but shall not be obligated) to ~erform by its own contractor or subcontractor, on behalf of and for the account of Tenant, any Tenant Improvements which Landlord determines should be so performed. Generally, such work shall be work which affects any structural components of or the general utility system for the Building. If Landlord so determines, it shall so notify Tenant prior to the commencement of such work by Tenant. Tenant shall promptly, on 4 4 . demand, reimburse Lessor for all engineering and architectural costs and cost of performing such work when and as incurred by Landlord and for all permits in connection therewith. (4) All Tenant Improvements shall conform to the requirements of Landlord's fire underwriter, and to applicable statutes, ordinances, regulations, codes and requirements. Tenant shall obtain and convey to Landlord all approvals with rspect to electrical, gas, water, heating and cooling, and telephone work, all as may be required by the utility company supplying the service. (5) No approval by Landlord shall be deemed valid unless the same shall be in writing and signed by Cumberland Property Management as agent. (6) Tenant shall be responsible for all work within the leased Premises other than Landlord's work as specified in Section 1.3(a). All work shall be in strict accord with applicable local building codes. Tenant shall obtain a building permit prior to beginning work on Tenant Improvements and furnish a copy of such permit to the Landlord. (7) Tenant and Tenant's contractors shall carry liability insurance covering all work in the Leased Premises in amounts and with coverages reasonably required by Landlord and incuding contractual liability covering Tenant's indemnity obligations under the Lease and this section. The Tenant shall furnish to the Landlord upon request certificates or policies of insurance 5 ~ " naming the Landlord, its benefici.ary and their respective agents, as additional named insured. (8) To the extent not expressly prohibited by law, Tenant agrees to hold Landlord and its beneficiary, and their respective agents, servants, and employees harmless and to indemnify each of them against claims and liabilities, including reasonable attorney's fees, for injuries to all persons and damages to or theft or misappropriation or loss of property occurring in or about the Premises arising out of the performance of Tennt Improvements by Tenant and Tenant's contractors, but only to the extent of Landlord's liability, if any, in excess of amounts, if any, paid to Landlord under insurance covering such claims or liabilities. Section 1.4. All Tenant Improvements, installations, additions, partitions, hardware, light fixtures, non-trade fixtures and improvements, temporary or permanent, except movable furniture, trade fixtures and equipment (other than Tenant Improvements) belonging to Tenant, in or upon the Premises, whether placed there by Tenant or Landlord, shall, upon expiration of this Lease or any renewal term or termination, become the Landlord's property and shall remain upon the Premises, all without compensation, allowance or credit to Tenant; provided, however, that if prior to such termination or within ten (10) days thereafter Landlord so directs by notice, Tenant, at Tenant's sole cost and expense, shall promptly remove such of the installations, additions, partitions, hardware, light 6 A12 . fixtures, non-trade fixtures and improvements placed in the Premises by Tenant as are designated ~n such notice and restore the Premises to the same condition it was at the commencement of the Lease. In the event Tenant fails to remove those items specifically stated herein, Landlord may remove the same and restore the Premises, and Tenant shall pay the cost thereof to Landlord on demand. All movable furniture, trade fixtures and equipment (other than Tenant Improvements) placed on the Premises by Tenant shall remain the property of Tenant and may be removed in whole or in part by Tenant at any time and from time to time during the Term, provided (a) any such trade fixtures and equipment removed during the Term shall be replaced with trade fixtures and equipment of like quality; and (b) any damage caused by such removal shall be repaired by Tenant at Tenant's expense. Tenant shall leave in place any floor covering without compensation to Tenant. Tenant shall also remove Tenant's furniture, machinery, safes, trade fixtures and other items of movable personal property of every kind and description from the Premises and restore any damage to the Premises caused thereby, such removal and restoration to be performed prior to the end of the Term or ten (10) days following termination of this Lease or Tenant's right of possession, whichever might be earlier, failing which Landlord may do so. All obligations of Tenant hereunder shall be treated as additional rent and survive the expiration of the Term or sooner termination of this Lease. 7 ~ ARTICLE II. TERM Section 2.1. The term of this Lease shall be for a demised term consisting of Five (5) years, commencing September 1, 1990 or the date which Tenant shall open business to the public, whichever date shall first occur. Landlord and Tenant shall, immediately following the date of commencement of the demised term, confirm by instrument ("Commencement Date Statement") the beginning and expiration of the demised term. Tenant shall execute such statement within five (5) days following submission thereon to Tenant for purposes of confirming the commencement date. Failure of Tenant to do so shall not render same ineffective. Provided Tenant is not in default at the time it exercises its option to renew, Tenant shall have the option to renew this Lease for one (l) additional five (5) year term by giving written notice to Landlord, by certified mail, return receipt requested, of such intention to renew not less than one, hundred eighty (180) days prior to the expiration of the existing term. Such renewal shall be at the terms, conditions and rents set forth herein, except that the fixed minimum rent shall be increased pursuant to the terms set forth in Article III. ARTICLE III. RENT Section 3.1. The Tenant covenants and agrees to pay to Landlord, at its offices or such other place as Landlord may from time to time designate, as minimum guaranteed rent, hereinafter called "Minimum Rent" for the Premises during the term of this i.i (. B 4 Lease from and after the commencement date, a fixed minimum annual rent of Eighty-Seven Thousand ~eventy Dollars and Fifty- Six Cents ($87,070.56), payable in equal monthly installments of Seven Thousand Two Hundred Fifty-Five Dollars and Eighty-Eight Cents ($7,255.88), without demand, deduction, set-off or counterclaim. Each monthly installment shall be paid to Landlord in advance, on the first day of each and every calendar month during said Term, and at the same per diem rate for fractions of a month if the Term shall begin on any date except the first day, or shall end on any day except the last day of a calendar month. Section 3.2. Effective on the first anniversary of the Commencement Date, and on each annual anniversary date thereafter, including any renewals, the annual minimum rent which is then applicable shall be increased by five percent (5\) per annum. ARTICLE IV. SECURITY DEPOSIT Section 4.1. Simultaneously with the execution of this Lease, Tenant shall deposit with Landlord a sum in the amount of Seven Thousand Two Hundred and Fifty-Five Dollars and Eighty- Eight Cents ($7,255.88). Such security shall be applied to the first monthly rental paymet due upon the commencement of the Lease. 9 ~ ARTICLE V. EXPENSES Section 5.1. (a) In addition to the Minimum Rent set forth in Article 3.1, Tenant shall pay as additional rent a proportionate share of Landlord's cost for utilities (including Landlord's utility costs for the Premises), realty taxes, and Common Area Maintenance Costs and Repairs, (as such terms are defined herein), which exceed Three Dollars and Fifty Cents ($3.50) per square foot per annum. Tenant's proportionate share shall be calculated as a fraction which shall have as its numerator the rentable floor area of the Premises and which shall have as its denominator the rentable floor araa of the Center. (b) Within thirty (30) days following the expiration of each calendar year, Landlord shall submit to Tenant a statement prepared by Landlord or its accountants summarizing the various amounts incurred during such calendar year for Expenses. Within ten (10) days following submission of such annual statement, Tenant shall pay to Landlord its proportionate share of Expenses as defined herein. (c) For the purpose of this Lease, "floor area" shall be deemed to mean the actual number of square feet of floor space measured from the exterior face of all exterior walls, without deduction for any space occupied by or used by columns, stairs or other interior construction or equipment except for the floor area of the elevator shaft, and the center line of all party 10 ~ walls and shall include the totality of the area within such boundaries. Section 5.2. For the purposes of this Lease, the term "Real Estate Taxes" shall mean taxes, rates and assessments, general and special, levied, assessed or imposed by any lawful authority, falling in whole or in part during the term of this Lease, with respect to the land, buildings, and improvements (whether or not the same are assessed as real or personal) located or built within the Center, including all taxes, rates and assessments, general and special, and front foot benefit charges, levied or imposed for school, public betterment, general or local improvements and operations and taxes imposed in connection with any special taxing district. If the method of real estate taxation shall be altered or varied and any new tax, excise, assessment or levy shall be levied or imposed on the land, buildings and improvements within the Center, and/or on any entity having an ownership interest in the Center, directly or indirectly, in lieu of, in substitution for or as a supplement to any Real Estate Taxes presently levied or imposed in the jurisdiction which the Premises are located, then any such new tax, excise, assessment or levy shall be included within the term Real Estate Taxes. Should any governmental taxing authority presently or hereafter levy, assess, or impose a tax, excise and/or assessment, however described (other than an income or franchise tax based upon the net income with respect to the Center), upon, against, on account of, or measured by, in whole 11 ,e or in part, the rent expressly reserved hereunder, or upon the rent expressly reserved under any oth~r leases or leasehold interests in the Center, as a substitute (in whole or in part) (or in addition to any existing Real Estate Taxes), such tax or excise on rents shall be included within the term Real Estate Taxes. Reasonable expenses, including reasonable attorneys' fees, expert witness fees and similar costs, incurred in contesting or obtaining or attempting to obtain a reduction of any Real Estate Taxes or assessed valuations shall be added to and included in the amount of any such Real Estate Taxes. ,Real Estate Taxes which are being contested shall nevertheless be included for purposes of the computation of the liability of Tenant under this Lease, provided, however, that in the event that Tenant shall have paid any Real Estate Taxes and a refund of any portion of any Real Estate Taxes on which such payment shall have been based is thereafter received, Landlord shall credit to Tenant the appropriate portion of such refund. Landlord shall have no obligation to contest, object or litigate the levying or imposition of any Real Estate Taxes and may settle, compromise, consent to, waive or otherwise determine in its discretion to abandon any contest with respect to the amount of any Real Estate Taxes without consent or approval of the Tenant. If either the Commencement Date or expiration date of this Lease shall not coincide with the beginning or end (as the case may be) of a full lease year, then in computing the amount payable under Section 5.1 for the period between the comencement and/or expiration of 12 ~ the applicable full lease year in question and the Commencement Date and/or expiration date of this Lease, Tenant's proportionate share of Real Estate Taxes for the applicable full lease year shall be equitably apportioned (on a per diem basis) so that Tenant shall pay only such portion of such Real Estate Taxes as is attributable to the portion of such full lease year occurring during the term of this Lease. Tenant's obligation to pay Real Estate Taxes under Section 6.2 for the final lease year shall survive the expiration and/or termination of the term of this Lease. A tax bill or true copy thereof, together with any. explanatory statement of the area or property covered thereby, submitted by Landlord to Tenant shall be conclusive evidence of the amount of taxes assessed or levied, as well as of the items taxed. If any real property tax or assessment levied against the land, building or improvements covered hereby or the rents reserved therefrom, shall be evidenced by improvement bonds or other bonds, or in any other form, which may be paid in annual installments, only the amount paid or payable in any lease year shall be included as Real Estate Taxes for that lease year for purposes of Section 5.2. If the Center consists of separate tax parcels, then the Real Estate Taxes with respect to all of said separate tax parcels (whether owned by Landlord and/or any entity or entities under common control with Landlord) shall be included as part of Real Estate Taxes for the purpose of this Lease. 13 ~ ARTICLE VI. UTILITIES. TRASH REMOVAL. JANITORIAL EXPENSES AND WINDOW Cr,EANING Section 6.1. The Landlord shall pay as and when they become due, directly to the company or utility providing the utility service, all charges for gas, electricity, water and sewer, light, heat and power subject to the Tenant's proportionate share as set forth in Article 6.1. Telephone or other communication service shall be the direct and sole expense of the Tenant. Section 6.2. The Tenant shall not permit the accumulation of rubbish, trash, garbage or other refuse in and around the Premises, will remove the same at Tenant's expense, and will keep such refuse in proper containers in the interior of the premisea until removal by Tenant to the collection area designated by the Landlord. All such rubbish, trash, garbage and other refuse shall be kept in areas designated by the Landlord, and in no other location of the Center. In the event Tenant fails to remove any accumulation of rubbish not being kept in a designated area within one (1) day after notice by Landlord to remove the same, Landlord shall have the right, in addition to all other remedies, but without obligation to do so, to remove the same at the cost and expense of the Tenant and Tenant shall pay to Landlord, on demand, the cost and expense therefor. In the event any local or other governmental authority shall levy a service fee or other charge for the collection and removal of Tenant'. refuse, Tenant shall pay promptly when due said fee or charge for 14 // such service. Section 6.3. Tenant shall be responsible for all janitorial services for the Premises, at its sole cost and expense, which shall be provided by a reputable cleaning entity no less than twice per week. Section '6.4 Tenant shall be responsible, at its sole cost and expense, for window cleaning of the Premises, both interior and exterior, which shall be provided for by a reputable window- cleaning entity, no less than twice in each calendar year. ARTICLE VII. PERMITTED USE Section 7.1. The leased Premises may be used for the purpose of medical diagnostic testing laboratory and/or specimen collection centre and/or such other paramedical uses as may be agreed between the parties, and for associated administration and storage purposes. To the intent that this covenant shall be for the benefit of the Premises, the Landlord covenants and agrees that throughout the Term of this Lease and any renewal thereof, it will not occupy or use or suffer or permit to be occupied or used any other premises in the building or adjoining lands or buildings under the control of the Landlord for the purpose in whole or in part of carrying on any function of the business of the taking or collecting by any means of medical laboratory specimens and/or a medical laboratory service and/or specimen collection service. The term "specimen collection service" means the taking or collecting of specimens from the human body or 15 // where specimens are received from other sources for examination to obtain information for diagnosis, prophylaxis or treatment. Provided this clause shall not prohibit a physician, in the ordinary course of conducting his medical practice, from personally taking laboratory specimens from his own patients in his own premises. Tenants' use of the leased Premises shall comply with all requirements of laws, ordinances, regulations, standards and sCatutes pertaining to the leased Premises including those relating to labour, industry, zoning, occupational safety and health. The Tenant shall indemnify and hold the Landlord harmless from any loss resulting from the violation by the Tenant of such statutes. Section 7.2. The Tenant covenants that at no time or times will the Tenant use or permit to be used the leased Premises or any part thereof, for any unlawful or illegal purpose or in any unlawful or illegal manner, or for the conduct of any public auction and that the Tenant will not carry on the business under any name or in any manner or permit any advertising which might, in the reasonable judgment of the Landlord, reflect, or tend to reflect adversely on the building erected or to bo erected by the Landlord, or confuse or mislead, or tend to confuse or mislead the public in any apparent connection or relationship betweeen the Landlord and the Tenant. Section 7.3. Hazardous Activitv. Tenant agrees that it will not do or suffer to be done or keep or suffer to be kept, anything in, upon or about the Premises which will contravene the 16 // insurance policies insuring the Center against loss ar damage by fire or other hazards, or which will prevent the procuring of such policies in companies acceptable to Landlord; and if anything done, omitted to be done or suffered to be done by Tenant, or kept, or suffered by Tenant to be kept, in, upon or about the Premises shall cause the rate of fire or other insurance on the Premises or the Center to be increased beyond the minimum rate from time to time applicable to the Premises for use for the purposes permitted under this Lease or to such other Center property for the use or uses made thereof, Tenant w~ll pay the amount of such increase promptly upon Landlord's demand. ARTICLE VIII. PARKING Section B.1. The Landlord shall provide, at no additional cost to Tenant, not less then twellty (20) parking stalls situated on the adjoining property specifically reserved for ~~d assigned to the Tenant. The location and specification of such parking stalls is set forth on the plan attached hereto as Exhibit .C.. The Landlord further agrees to provide at no additional cost 4 parking stalls located immediately adjacent to the rear entrance" of the leased Premises reserved exclusively for the Tenant. However, in the event that the adjoining property is sold or leased, the reservation of such twenty (20) parking spaces shall terminate immediately, and Landlord shall, without any cost to Tenant, provide alternative parking to Tenant. Tenant expressly 17 / acknowledges that the agreement to provide such parking creates no leasehold interest in the adjoinln~ property for the Tenant. ARTICLE IX. COMMON AREAS Section 9.1. USe of Common Areas. The term "common areas" as used in thIs Lease shall mean the parking areas, driveways, walkways, landscaped areas, berms and other areas and improvements which may be provided for the convenience and use of the occupants and tenants of the Center. During the term of this Lease, and subject to the provisions of this Lease, Tenant!s use and occupancy of the Premises shall include the non-exclusive use, in common with all others granted rights to use the same and for whose convenience and use the common areas are intended (including, but not limited to Landlord, the owners, occupants and tenants of the Center, and their respective officers, employees, agents, customers, business guests, licensees and invitees), of the common areas; provided, however, that such use by Tenant shall be subject to such reasonable rules and regulations governing the same from time to time; and provided, further, that Landlord or any entity or entities under common control with Landlord shall at all times have full control, management and direction of said common areas, and that Landlo~d or any entity or entities under common control with Landlord shall have the right at any time to change the layout thereof, including the right to reasonably add to or subtract from their shape and size, as well as to alter their location, provided, 18 ~~ however, that reasonable efforts will be made not to unreasonably interfere with Tenant's access to the Premises. Section 9.2. Rioht to Close Common Areas. Landlord or any entity or entitites under common control with Landlord shall have the right to close any or all po~tions of the common areas to such extent as may, in the opinion of legal counsel, be legally sufficient to prevent a dedication thereof or the accrual of any rights to any person or to the public therein, and to close temporarily, if necessary, any part of the common areas in order to discourage non-customer parking and in the exercise of any repair and maintenance obligations or other rights herein reserved with respect to the common areas. If the amount or nature of the common areas and facilities are diminished, this Lease shall remain in full,.force and effect, and Landlord shall not be subject to any liability nor will Tenant be entitled to any compensation or diminution of rent, nor shall diminution of such common areas and facilities be deemed constructive or actual eviction. Section 9.3. Common Area Reoairs. Landlord shall arrange for the care, maintenance and repair of the common areas on the Center including, but not limited to, repairing, replacing and restriping paved parking areas when needed, keeping common areas reasonably clear of litter and snow, maintaining any plants and landscaped areas and keeping common areas reasonably lighted at times when the stores in the Center are required to be open for business. 19 A' Section 9.4. Reoairs by Landlord. Landlord shall keep and maintain the foundation, roof and str.uctural portions of the walls of the building in which the Premises are located in good condition and repair at Landlord's sole cost and expense, provided Tenant shall provide Landlord with prompt ~ritten notice of the necessity therefor. Except as otherwise provided in this Lease, Landlord shall be under no obligation to inspect or repair any part of the Premises. Landlord shall secure service contracts for the heating and air-conditioning units for the Premises. The cost of such service contracts shall be the, sole expense of the Tenant. Tenant shall report, in writing, to Landlord any defective condition actually known to Tenant which Landlord is required to repair, within ten (10) days. Landlord s~all have a reasonable time after receipt of notice from Tenant to commence and complete repairs required of Landlord hereunder. The provisions of this Section regarding Landlord's obligations shall not apply in the case of damage or destruction by fire or other casualty or by eminent domain, in which event the obligations of Landlord shall be controlled by either Article XIV or Article XV hereof. Section 9.5. Reoair and Common Area Maintenance Costs. Repair and Common Area Maintenance Costs shall include all expenses actually incurred which are necessary, appropriate and/or beneficial generally to the operation, maintenance, management and repair of the Center, and the costs incurred for management of the Center and shall also include, without 20 limitation, costs and expenses for those items hereinafter set forth in the attached Exhibit "D". In accordance with Section 6.1, Tenant shall pay to Landlord its proportionate share of all Repair and Common Area Maintenance Costs. Section 9.6. Repairs bv Tenant. Tenant shall keep and maintain the Premises and any fixtures, facilities or equipment contained therein in good condition and repair, including, but not limited to, the heating, air conditioning, electrical, plumbing systems, the exterior doors and window frames and shall make any replacement thereof and of all broken and cracked, plate glass as may become necessary during the term of this Lease, excepting, however, such repairs and replacements as are the obligations of Landlord under Section 10.4 hereof. If Tenant refuses or neglects to commence or complete repairs promptly and adequately, Landlord may, but shall not be required to do so, make or complete said repairs and Tenant shall pay the cost thereof to Landlord upon demand. ARTICLE X. INSURANCE Section 10.1 Liabilitv Insurance. Tenant further covenants that Tenant will at all times during the Term, at Tenant's own expense, maintain and keep in force for the mutual benefit of Landlord and Tenant, general public liability insurance against claims for personal injury, death or property damage occurring in, on or about the Premises to afford protection to the limit of not less than One Million 21 4 ($1,000,000.00) Dollars combined for both bodily injury and physical damage as the result of anyone occurrence. Tenant shall deliver to Landlord a certificate of said insurance or renewals therefore from time to time during the Term of the Lease. Section 10.2 Landlord's Insurance. Landlord agrees that throughout the term of this Lease (i) the common areas of the Center will be covered by public liability insurance with a minimum combined coverage for bodily injury and property damage of One Million Dollars ($1,000,000.00) and (ii) all buildings and improvements now or hereafter erected on the Center will be covered by "all risk" property insurance for the full replacement cost of such buildings and improvements. The premiums for such insurance shall be included as part of Repair and Common Area Maintenance Cost and Tenant shall pay to Landlord its proportionate share thereof in accordance with Section 6.1 hereof. ARTICLE XI. SUBROGATION Section 11.1. Each party waives rights of subrogation against the other with respect to any insured risks to the extent such waiver does not invalidate such insurance or reduce the proceeds. 22 # ARTICLE XII. SIGNS AND F.X'fERWR AT'l'AcfDoIENTS Section 12.1 Tenant shall have ,the right to incorporate its trade name or store identification within the area or areas provided for by Landlord; provided, however, that any such signs shall strictly conform in number, color, style, design and in all other respects to the criteria established by the Landlord for Premises, and shall conform to all local governmental regulations. Any such signage costs shall be paid for by Tenant and all repairs shall be the sole responsibility of Tenant, including replacement of light bulbs. ARTICLE XIII. PIRE AND OTHER DAMAGE Section 13.1 In case of damage to the Premises by a risk insured against under Section 11.2, Landlord, unless Landlord shall otherwise elect as hereinafter provided, shall repair or cause to be repaired such damages with reasonable dispatch after receiving from the Tenant written notice of the damage. If the damages are such as to render the Premises untenantable, the rent shall be abated to an extent corresponding with the period during which and the extent to which the Premises have become untenantable; provided, however, if such damages are caused by the carelessness or negligence or improper conduct of Tenant or of a subtenant, or the agents, employees, visitors, invitees or licensees of Tenant or of a subtenant, then notwithstanding such damages and untenantability, Tenant shall be liable for rent without abatement. In the event of damage or destruction to the 23 p Premises to the extent of rendering more than fifty percent (50\) of the floor area of Premises untenantable, Tenant shall give Landlord written notice of the damage (but failure to give notice shall not be binding upon Landlord), in which event all rent shall abate. If, in the opinion of a licensed professional engineer or similar professional that the d~age or destruction is incapable of repair within 180 days after its occurrance, either party may elect to terminate this Lease by providing written notice of such election within ninety (90) days after the occurrence of such damage or destruction. ARTICLE XIV. CONDEMNATION Section 14.1. The Tenant may, at Tenant's option, terminate this Lease if any portion of the Premises is condemned by any governmental body or by any other body or organization possessing the power of condemnation, provided such condemnation substantially impairs the use or enjoyment by Tenant of the Premises. In case of the taking through eminent domain of all or any portion of the Premises, the Landlord shall notify the Tenant in writing of such taking. Within sixty (60) days after receipt of such written notice, the Tenant shall notify the Landlord, in writing, whether such taking through eminent domain, in the reasonable opinion of the Tenant, substantially impairs Tenant's use or enjoyment of the Premises. If the Tenant's decision on this matter is in the affirmative, then Tenant shall also include in said notice the time when Tenant desires to terminate the 24 ,# Lease and on such date the Lease and the Term hereof shall terminate, which time shall not be earlier than physical work (other than surveying and staking out) shall be instituted on the Premises by the condemning authority, nor later than sixty (60) days after the same time. The failure of the Tenant to give notice above set forth as required and within the time limit set forth above shall be conclusively construed as a decision on the Tenant's part that such taking does not substantially impair Tenant's use or enjoyment of the Premises. On the other hand, the giving of such notice by the Tenant does not bind the ' Landlord as to the correctness of the Tenant's decision that Tenant's use of the premises is substantially impaired by the taking. ~TICLE XV. NONLIABILITY OP LANDLORD Section 15.1. The Landlord shall not be liable to the Tenant, any office=, employee, agent, invitee, licensee or visitor of the Tenant, or any other person, for damage or injury to any peFson or property caused, in whole or in part, by any act, omission or neglect of Tenant, Tenant's contractors, employees, agents, invitees, licensees or visitors, or any happening in any manner on the Premises, and Tenant shall indemnify, defend and hold harmless Landlord from any claim, loss or liability therefore, including reasonable attorney's fees. Section 15.2. All property kept, stored or maintained on the Premises shall be so kept, stored or maintained at the risk 25 fi of the Tenant only, and the Landlord shQll not be liable for any loss or damage to the Tenant or Tenant's property. ARTICLE XVI. ASSIGNMENT Section 16.1. The Tenant shall not have the right to sell, assign, transfer, mortgage, pledge, sublease or sublet the Premises without the Landlord's prior written consent, which shall not be unreasonably withheld. In the event that the Tenant proposes to sublease or sublet the Premises or any portion thereof, Tenant shall give to Landlord written notice, which notice shall set forth: (i) the identity, business and financial condition of the proposed subtenant; the terms and conditions of the proposed sublease; any other relevant information requested by Landlord; and an offer by Tenant and the proposed subtenant for' the release of Tenant from this Lease and the establishment of the Landlord-Tenant relationBhip between Landlord and the proposed subtenant under the terms and conditions of the proposed sublease. Landlord shall have the right to: withhold consent, if reasonable; grant consent (in which case Tenant and Landlord shall divide equally any increase in Rent); or (il) (iii) (iv) (i) (il) 26 A' (iii) release Tenant from this Lease and accept the offer of the proposed subtenant to establish the Landlord-Tenant relationship between Landlord and the proposed subtenant under the terms and conditions of the proposed sublease. In the event that the proposed sublease is of a portion of the premises, and Landlord consents to the sublease, the Rent in this Lease shall be prorated between the portion proposed to be subleased and the balance of the Premises on a square foot basis. Section 16.2. The consent by Landlord to any assignment, transfer, or subletting to any party shall not be construed as a waiver or release of Tenant under the terms of any covenant or obligation under this Lease or as a waiver or release of the non- assignability covenants in their future application, nor shall the collection or acceptance of rent from any such assignee, transferee, subtenant or occupant constitute a waiver or release of Tenant of any covenant or obligation contained in this Lease. If this Lease is transferred or assigned, as aforesaid, or if the Premises or any part thereof be sublet or occupied by any person or entity other than Tenant, whether as a result of any act or omission by Tenant, or by operation of law, or otherwise, then Landlord, whether before or after default by Tenant, may, in addition to, and not in diminution of or substitution for, any other rights and remedies under this Lease or pursuant to law to which Landlord may be entitled as a result thereof, collect rent from the transferee, assignee, subtenant or occupant and apply 27 ~ the net amount collected to the rent herein reserved, but no such transfer, assignment, subletting, occupancy or collection shall be deemed a waiver of the covenants contained herein or the acceptance of the transferee, assignee, subtenant, or occupant as the tenant, or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant set forth in this Lease. Section 16.3. If Tenant is a corporation, then the sale, issuance or transfer of any voting capital stock of Tenant or of any corporate entity which directly or indirectly controls. Tenant (unless Tenant is a corporation whose stock is traded on the Toronto Stock Exchange or the New York Stock Exchange or the Amorican Stock Exchange) wh.ich shall result in a change in the voting control of Tenant or the corporate entity which controls Tenant shall be deemed to be a prohibited assignment of this Lease within the meaning of this Article XVI. If Tenant is a partnership or an unincorporated asssociation, then the sale, issuance or transfer of a majority interest therein, or the transfer of a majority interest in or a change in the voting control of any partnership or unincorporated association or corporation which directly or indirectly controls Tenant, or the transfer of any portion or all of any general partnership or managing partnership interest, shall be deemed to be a prohibited assignment of this Lease within the meaning of this Article XVI. 28 p/( MTlcLE XVII. VOLUNTARY OR INVOI.UN'l'ARY ASSIGNMEN'r Section 17.1. Neither this Lease nor any interest herein shall be assignable or otherwise transferable by operation of law or by voluntary assignment or for the benefit of creditors without the written consent of the Landlord, and such inhibitation against voluntary assignment includes and comprehends any and every assignment which might otherwise be affected or accomplished by bankruptcy, receivership, attachment, execution or other judicial process or proceeding. If any assignment for the benefit of Tenant's creditors should be, made by the Tenant, or if a voluntary or involuntary petition in bankruptcy or for reorganization or for an arrangement should be filed by or against the Tenant and not dismissed within ninety (90) days, or if the Tenant should be adjudicated a bankrupt or insolvent, or if a receiver is appointed of or for the Tenant, or for all or a substantial part of Tenant's property, or of such assignment or transfer by operation of law should occur, then and in any such event, the Landlord may, at Landlord's option, terminate this Lease by noticel:.o the Tenant. The provisions of this paragraph shall not apply to any of the rights, titles and interests of the Landlord in, to or under this Lease. ARTICLE XVIII. EVENTS OF DEFAULT Section IB.l If Tenant fails to pay any installment of Rent promptly on the day when due and payable hereunder and' receives notice from Landlord of nonpayment and shall continue in 29 ft.- default for a period of ten (10) days, or if Tenant shall fail to promptly keep and perform any other affirmative covenant or agreement of this Lease, strictly in accordance with the terms hereof and shall continue in default for a period of twenty (20) days after written notice thereof by Landlord of default and demand of performance or compliance, then such shall be an Event of Default. If any default shall occur, other than in the payment of money, which cannot with due diligence be cured within such period of twenty (20) days from and after the giving of notice as aforesaid, and Tenant commences to cure such default and proceeds diligently and with reasonable dispatch to take all steps and do all work required to continue to cure such default and does so cure such default, then Landlord shall not have the right to declare any Event of Default. Any of the following shall also constitute an Event of Defaultl Tenant is adjudicated a bankrupt, institutes proceedings for a reorganization or for an arrangement under the Bankruptcy Act, or any involuntary petition in bankruptcy is filed against Tenant, which is not dismissed within ninety (90) days. If Tenant shall remove from the premises during the term or renewal term of this Lease for fourteen consecutive business days, or cease to use or occupy the same as herein provided for fourteen consecutive business days, Landlord may, at its option and after five (5) days written notice to the Tenant of Notice of its intention to do so, immediately and without liability therefore, re-enter said premises and lease the said premises to 30 A any other person or persons, and said Tenant shall be liable for allY loss in rent for the balance of the then current term. Section 18.2. Landlord Riqhts. Upon an Event of Default, Landlord may, with ten (10) day's notice, declare a default, and upon a default, Landlord maYI (a) declare an amount or amounts equal to the Rental which, but for termination of this Lease, would have become due during the remainder of the Term or renewal term immediately due and payable, less the amount or amounts of rental, if any, which Landlord shall receive during such period from others to whom the Premises may be rented (other than any Additional Rental received by Landlord as a result of any faiure of such other pe.rson to perform any of its obligations to Landlord), in which case such amount or amounts shall be computed and payable at Landlord's option either in an accelerated lump sum payment in an amount equal to the total rentals due for the remaining Term of the Lease or pament in monthly installments, in advance, on the first day of each calendar rr.onth following termiantion of the Lease and continuing until the date on which the Term would have expired but for such termination. Any suit or action brought to collect any such Liquidated Damages for any month shall not in any manner prejudice the right of Landlord to collect any amount or amount5 for any subsequent month by a similar proceeding. (b) Enter into the Premises or any part thereof, in accorda~ce with process of law, and expel Tenant or any person 31 A -. occupying the same using such force as may be necessary and relet the Premises for the Tenant's account. (c) If Tenant shall default in the payment of the rent herein reserved or in the payment of any other sums due hereunder by Tenant, Tenant hereby authorizes and empowers any Prothonotary or attorney of any court of record to appear for Tenant in any and all actions which may be brought for said Rent and/or said other sums and/or to sign for Tenant an agreement for entering in any competent court an amicable action or actions for the recovery of said rental and/or other sums; and, in said suits or in said amicable action or actions, to confess judgment against Tenant for all or any part of said rental and/or said other sums, including, but not limited to the amounts due from Tenant to Landlord, and for interest and costs, together with any attorney's commission for collection of ten (lO%> percent. Such authority shall not be exhausted by one exercise thereof, but judgment may be confessed as aforesaid from time to time as often as any of said and/or other sums shall fall due or be in arrears, and such powers may be exercised as well after the expiration of the initial Term of this Lease and/or during any extended or renewal term of this Lease and/or after the expiration of any extended or renewal term of this Lease. (d) When this Lease and the Term or any extension or renewal thereof shall have been terminated on account of any default by Tenant hereunder and also when the Term hereby created or any extension or renewal thereof shall have expired, it shall 32 ft be lawful for any attorney of any court of record to appear as attorney for Tenant, as well as for all persons claiming by, through or under Tenant, and to sign an agreement for entering in any competent court an amicable action in ejectment against Tenant and all persons claiming by, through or under Tenant and therein confess judgment for recovery by Landlord of possession of the Premises, for which this Lease shall be its sufficient warrant; thereupon, if Landlord so desires, an appropriate writ of possession may issue forthwith without any prior writ or proceeding whatsoe"er, and provided that, if for any reason after such action shall have been commenced, it shall be determined that possession of the Premises remain in or be restored to Tenant, Landlord shall have the right for the same default and upon any subsequent default or defaults, or upon the termination of this Lease or Tenant's right of possession as hereinbefore set forth, to bring one or more further amicable action or actions aa hereinbefore set forth to recover possession of the Premises and confess judgment for the recovery of possession of the Premises as hereinbefore provide. (e) Exercise any or all such rights as are available to Landlord by law. All rights and remedies available herein or by law shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or equity. 33 ~ ARTICLE XIX. HOLDING OVER Section 19.1. Surrender and Holdinq Over. Tenant shall deliver upon and surrender to Landlord possession of the Premises and upon the expiration of the Lease, or its termination in any way, in as good condition and repair as the same shall be at the commencement of said term (damage by fire and ordinary wear and decay only excepted), and shall deliver the keys at the office of Landlord or Landlord's agent. Should Tenant or any party claiming under Tenant remain in possession of the Premises, or any part thereof, after expiration of any termination of this Lease, no tenancy or interest in the Premises shall result therefrom but such holding over shall be an unlawful detainer and all such parties shall be subject to immediate eviction and removal, and Tenant shall upon demand pay to Landlord, as liquidated damages, a sum equal to double the Minimum Rent as <<. specified herein for any period during which Tenant shall hold the Premises after the stipulated term of this Lease may have expired or terminated. ARTICLE XX. MISCELLANEOUS Section 20.1. Interest and Collection Expenses. Interest shall accrue on any monies due from Tenant to Landlord from the date the same are due (including Rent and monies advanced by Landlord to others ~n account of the failure of Tenant to perform hereunder) at the annual prime interest rate as established from time to time by Dauphin Deposit Bank and Trust Company, 34 ~..c Harrisburg, Pennsylvania, plus three (3%) percent per annum. In event of default, Landlord shall be entitled to all attorney fees, court costs, charges and expenses if judgment in a court of competent jurisdiction is awarded to Landlord. Section 20.2. ~ubordination. Tenant shall subordinate Tenant's interest in the Premises to the lien, operation and effect of mortgages as requested by Landlord from time to time, and will promptly execute and deliver such agreement or agreements as may be reasonably required by any mortgagee or trustee. Section 20.3. Estoppel Certificates. At any time and from time to time, each party agrees, upon request in writing from the other party, to promptly without delay execute, acknowledge and deliver to such party a statement in writing certifying that this Lease is unmodified and .in full force and effect (or if there have been modifications, that the same is in full force and effect as modified and stating the modifications) and the date to which the Minimum Rent, additional rent, and other charges hereunder have been paid. In addition, Tenant agrees to furnish Landlord, upon request and after Tenant has opened its doors for business in the premises, a letter addressed to Landlord's mortgagee or financial institution, giving the following information or any part thereof requested by Landlordl (i) that the Premises have been completed on or before the date of such letter and that all conditions precedent to the Lease taking effect have been carried out; (ii) that Tenanc has accepted 35 ~/ possession of the Premises, that the Lease term has commenced, that Tenant is occupying the Premises,and that Tenant knows of no default under the Lease by the Landlord; (iii) the actual commencement date of the Lease and the expiration date of the Lease; and (iv) that the Tenant's store is open for business. In the event the Tenant fails to provide such letter as above- described within ten (10) days after Landlord's written request therefor, Tenant does hereby make, constitute and irrevocably appoint Landlord as its attorney-in-fact and in its name, place and stead so to do. Section 20.4. waiver of Subroaation. Landlord and Tenant hereby release the other from any and all liability or responsibility to the other or anyone claiming through or under them by way of subrogation or otherwise for any loss or damage to property caused by fire or any of the extended coverage or supplementary contract casualties, even if such fire or other casualty shall have been caused by the fault or negligence of the other party, or anyone for whom such party may be responsible, provided, however, that this release shall be applicable and in force and effect only with respect to loss or damage occurring during such time as the releasor's policies shall contain a clause or endorsement to the effect that any such release shall not adversely affect or impair said policies or prejudice the right of the releasor to recover thereunder. Each party shall obtain insurance policies containing such waiver of subrogation 36 ....- . clause(s) f~r all insurance policies which relate to the Premises or use of the Premises. Section 20.5. Mortoaoees' Riqht to Cure Landlord's Default. Tenant agrees that in the event the Landlord is in default undar this Lease, any mortgagee or trustee under a deed of trust of Landlord's interest in the Premises, and the landlord under any ground or underlying lease which includes the Premises, shall be permitted (but not required) to enter the Premises during normal business hours for the purposa of correcting or remedying such default, and Tenant agrees to accept performance by such mortgagee, trustee, or ground or underlying landlord in lieu of performance by the Landlord. Tenant further agrees that, from and after specific written request by Landlord to do so (which request sets forth the name and address of any mortgagee, trustee or ground or underlying landlord), Tenant will, simultaneously with the giving of any notice to Landlord as required or permitted hereunder, give a copy of such notice to such mortgagee, trustee or ground or underlying landlord and that any such notice to Landlord shall not be effective unless Tenant has simultaneously given such notice to such mortgagee, trustee or ground or underlying landlord. Section 20.6. Financino. Tenant agrees to consent to, and to execute and deliver promptly upon each request from Landlord, such reasonable amendments to this Lease as may be requested by any bank, savings and loan association, insurance company or other institutional lender providing bona fide mortgage loans to 37 ~ Landlord in connection with the Center (or any part thereof), or by any ground landlord (if any) of the land appurtenant thereto, pr~vided, however, that such amendments do not impair or otherwise materially affect Tenant's leasehold interest in the premises, and provided further that such amendments do not reduce, increase or change the term of this Lease, nor affect the rate or cost of rental and other obligations of Tenant hereunder, nor create any material obligations, liabilities, duties or responsibilities of any nature whatsoever upon the Tenant greater than those to which Tenant is herein committed. Section 20.7. Additional Instruments. Tenant shall, at the request of Landlord, execute such additional instruments that Landlord or Landlord's mortgagee may request from time to time or as may be required or convenient hereunder, not in~onsistent herewith. Section 20.8. Landlord's Covenant of Title and Ouiet En1ovrnent. Landlord covenants and warrants that, upon the Term of the Lease commencing, Landlord shall have full right and lawful authority to enter into this Lease for the full Term hereof; that Landlord will be lawfully seized of the entire Premises and will have good title thereto; and that, at all times when Tenant is not in default under the terms and during the term of this Lease, Tenant's quiet and peaceable enjoyment of the Premises shall not be disturbed or interfered with by anyone. Landlord, in person or by agent, shall be permitted to enter upon 38 -~ the Premises at reasonable times to examine the same or to make such repairs as are required hereunder. Section 20.9. Heirs. Successors and Assions. This Leaae shall inure to the benefit of and shall bind the respective heirs, successors and assigns of the parties to the extent that the parties' rights hereunder may succeed and be assigned according to the terms hereof. Section 20.10. waiver. No waiver of any condition or legal right or remedy shall be implied by the failure of Landlord to declare a forefeiture, or for any other reason, and no walver of any condition or covenant shall be valid unless it be in writing signed by the Landlord. No waiver by Landlord in respect to one tenant of the building in which the Premises are located shall constitute a waiver in favor of any other tenant, nor shall the waiver of a breach of any condition be claimed or pleased to excuse a future breach of the same condition or covenant. The mention in this Lease of any specific right or remedy shall not preclude Landlord from exercising any other right or from having any other remedy or from maintaining any action to which it may be otherwise entitled either at law or in equity; and for the purpose of any suit by Landlord brought or based on this Lease, this Lease shall be construed to be a divisible contract, to the end that successive actions may be maintained as successive periodic sums shall mature under. this Lease, and it is further agreed that failure to include in any suit or action any sum or 39 /17 sums then matured shall not be a bar to the maintenance of any suit or action for the recovering of said sum or sums so omitted. Section 20.11. Service of Notice. If, at any time after the execution of this Lease, it shall become necessary or convenient for one of the parties hereto to serve any notice, demand or communication upon the other party, such notice, demand or communication shall be in writing signed by the parties serving the same, sent by certified mail, return receipt requested, postage prepaid, or by Federal Express, purolator, Emery Air Freight, UPS, U. S. Express Mail or other similar overight. courier which delivers, only upon the signed receipt of the addressee. The time of giving of any notice shall be the time of receipt thereof by the addressee or or any agent of the addressee. Notice to Landlord Lemoyne Square Plaza properties 4 Lemoyne Drive Lemoyne, PA 17043 Notice to Tenant MDS Health Group Limited 100 International Boulevard Etobicoke, Ontario Canada, ~W6J6 Attnl Leasing Manager Q INITL" with CODV to; Francis M. Socha, Esq. ~20l N. Second St. Harrisburg, PA 17110 Section 20.12 Real Estate Brokers. Tenant represents that it has directly dealt only with Cumberland Property Management and Anchor Commercial Realty, (whose commissions, if any, shall be paid for by Landlord pursuant to separate agreement) as broker, in connection with the lease and agrees to indemnify and 40 hold Landlord harmless for any damages, liability and expenses (including reasonable attorney's fee), rising from any claim or demand of any other broker, brokers or finders for any commissions alleged to be due said broker, brokers or finders in connection with its participating in the negotiation of this lease. Section 20.13. Corporate Tenants. The persons executing this Lese on behalf of Tenant hereby covenant and warrant that, Tenant is a duly constituted corporation qualified to do business in the state of Pennsylvania; all Tenant's franchises and, corporate taxes have been paid to date; all future forms, reports, fees and other documents necessary for Tenant to comply with applicable laws will be fi1ed by Tenant when due; and such persons are duly authorized by the board of directors of such corporation to execute and deliver this Lease on behalf of the corporation. Section 20.14. pennsvlvania Law. This agreement shall be construed under the laws of the Commonwealth of pennsylvania. Section 20.15. Entire Aareement. This Agreement represents the entire agreement between the parties hereto. There are not agreements, negotiations or representations, oral or written, other than as set forth herein. 41 A /r1 . , . . . . ..~.... ./) , . / .... i ~ f, j 1 . ~ :~ T l i.l ............ . . . s '- "''''''' co "'..-. N.. ..... 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LAST DAY FOR SERV,CEI A~RIL 19, 19~6, In The Court or C.:mmo:i ?Is:s OT C:.Jr:::::::l:'l:nd C.::t.:~~'Y, Lemoyne Square Plaza Properties VS. MOS Inc. ?anr:syl'lc:~i= :-1e. 96-1563 Civil ----. :;a_ \ :'>iow, March 29. '9 a" T S---:'~..-:'- 0'::' ,.....-, G':'":lr ,'"" CO''''''-v :> ~ .. . ~... .__~ _ _..... __~~-.I .....'l.... ..............0 . . h~ cL:;u= tb: S-~.:.: oi . A 11eohenv C~u:::r :;) :::::-.::= = ',V:::, ... . \". ..:' . .. .. ~,. .- ::::s =U::.c:l ......,.,. :::L:: U == ~ :.:0. :-:.u -ot ::.: . ~::::. . --, . r~~~'~ She..-~ =t C:.=::er...1CU C~u:t7. ?~ . ASda:vit or Servi~ (ItJ ~S tClt? ~;._ ryr 3 =r::u:c.:::.;:.o ~ / !~- %, ~: /{ 11- "do" .~ ~ ~ow, == vti.;.~ 9 (lttiJ )(lJ-{( (tfA q(f^" a. c::py ci == ::':~." ~ :mci -,':. !cawa :g . ., :::.: .::==:s ::.-::r.. /lJo1 art OJ I~J-f/JI\ {L~tU~4& . , So ~='. ~_.h. . Swc::. ~C:! s::::c-.:=c:! oce:: APR. 22 1996 19_ CCSTI r :::r-~v,C:: .1~ S )'G1.Z.>.G! '? .~--=:mA ;--rr ~ \- == :.=s _ C,,! ei ,-......... 8I1oia A, os;.,o, NolaIy NlIc PilIICuo1t1, ~VJ<roj CounIy L+fCcmmi!eblExptllSJ"o" 17,1998 ! 31.(0 .. . Corning"). Upon information and belief, Defendant Corning is affiliated with Defendant Metpath. 6. By lease dated August 6, 1990, Defendant MDS Health Group, Inc. leased from Plaintiff approximately 5,228 square feet of shell space plus 49 square feet of common area space and appurtenant parking spaces located at 1 Lemoyne Square, Lemoyne, Cumberland County, Pennsylvania (hereinafter the "Premises"). A true and correct copy of the lease is attached hereto and made a part hereof as Exhibit "A" (hereinafter referred to as the "Lease") . 7. Pursuant to section 2.1 of the Lease, the original term of the Lease commenced on September 1, 1990 and terminated on August 31, 1995. 8. Pursuant to section 3.1 of the Lease, Defendant MDS Health Group, Inc. agreed to pay minimum rental in the amount of $87,070.56, in installments of $7,255.88 per month, during the first year of the Lease. 9. Section 3.1 provides that the minimum rental wilt increase by five (5) percent each year of the original term. 10. In the final year of the original term of the Lease, which commenced on August 31, 1994, Defendant MDS Health Group, Inc. was obligated to pay the sum of $8,819.56 per month for minimum rental of the Premises. - 2 - A 11. Pursuant to Section 5.1 of the Lease, Defendant MOB Health Group, Inc. agreed to pay as additional rent a proportionate share of Plaintiff's cost of utilities, realty taxes and common area maintenance and repairs. 12. Upon information and belief, Defendant MDS Health Group, Inc. assigned its interest in the Lease and the Premises to Defendant MetPath on December 17, 1991. 13. This assignment does not relieve Defendant MDS Health Group, Inc. or Defendant MDS Health Group Limited of any liability under the Lease, including liability for minimum rent, additional rent, interest or attorneys' fees. 14. The original term of the Lease expired on August 31, 1995. 15. Defendants have not renewed or extended the Lease. 16. Defendants remain in possession of the Premises. 17. Pursuant to Section 19.1 of the Lease, in the event that Defendants remain in possession of the Premises after the Lease term has expired, Defendants are obligated to pay a sum equal to double the minimum rent. 18. Pursuant to Section 20.1 of the Lease, Defendants are obligated to pay interest on all sums due and owing to plaintiff at the annual prime interest rate as established from time to - 3 - A time by Dauphin Deposit Bank and Trust Company, Harrisburg, Pennsylvania, plus three percent (3%) per annum. 19. Pursuant to Section 20.1 of the Lease, Plaintiff is entitled to all attorneys' fees, court costs, charges and expenses if judgment in a court of competent jurisdiction is awarded to Plaintiff. 20. Pursuant to Section 20.11 of the Lease, all notices were to be sent to MDS Health Group Limited at 100 International Boulevard, Etobicoke, Ontario, Canada M9W6J6. COUNT I 21. Plaintiff incorporates herein by reference paragraphs 1-20 of the Complaint as if set forth fully. 22. The criginal term of the Lease has expired. 23. Because they failed to renew the Lease in a timely manner, Defendants are now tenants at sufferance. 24. Plaintiff is now entitled to possession of the Premises. WHEREFORE, plaintiff Lemoyne Square Plaza Properties demands that this Court enter judgment for possession of the Premises at 1 Lemoyne Square. Lemoyne, Cumberland County, Pennsylvania in favor of Plaintiff and against Defendants MDS Health Group, Inc., MDS Health Group Limited, MetPath, Inc., and Corning Clinical Laboratories, Inc. - 4 - A COUNT II 25. Plaintiff incorporates herein by reference paragraphs 1-24 of the Complaint as if set forth fully. 26. Defendants have failed to pay the full amount of rent since August 31, 1995. 27, As a result of Defendants' failure to pay the full amount of rent and to vacate the Premises, Plaintiff has suffered and continues to suffer monetary damages, as follows: a. minimum rent for the period after the Lease terminated (September 1 through March 31) in the amount of $123,473.84. less payments of $61,736.92, resulting in a net obligation of $61,736.92; b. minimum rent from March 31, 1996 through the end of the calendar month in which the Premises is surrendered at the rate of $17,639.12 per month; c. allocable share of the common area maintenance charges to be billed from January 1, 1996 through the date described in item b. above; d. interest on all monies due and owing, as set forth in Section 20.1 of the Lease; e. attorneys' fees and costs of suit, pursuant to Section 20.1 of the Lease. - - 5 - lC...h.hlt .. . hE~ LEMO'lNE: SQUARE PLAZA THIS LEASE MADE AND EX::CU'l'ED, thi.s .1, d.lY of A1v~vJr 1990, by and between Lemoyne Square Plaza properties, a pennsylvani.a general ~artnershi~, with its principal office at 4 Lemoyne Drive, Lernoyne, Cumberland County, Pennsylvania, (herein called "Landlord"), and MDS Health Group, Inc., (herein called "Tenant"). Landlord does hereby lease unto Tenant the "Premises", at the "Rent" for the "Term" for the "Permitted Use" upon and under the following terms and conditions: ARTICLE I. PREMISES Section 1.1. Landlord hereby leases to the Tenant and Tenant hereby leases from the Landlord the following building or portion of building (the "Premises") des ignated as Lemoyne Square Plaza, a retail/office complex, owned by the Landlord, and located at 1 Lemoyne Square, Borough of Lemoyne, Cumberland G(Junty, Pennsylvania (the Center). The term "premises" shall mean approximately 5,228 square feet of shell space within the Center and 49 square feet of common area of the Center (which figure represents Tenant's proportionate share of the common area) as more particularly described in Exhibit "A". Section 1.2. Landlord warrants that the Premises and Center are presently in compliance with all municipal and other governmental laws, ordinances, building codes and rules and 4 . regulations. Landlord reserves the right at all times to alter the Center as long as the location and size of the Premises shall not be changed except as otherwise set forth in this Lease. Section 1. 3 (a) Landlord is delivering that portion of the Premises which had previQusly been occupied by Raymond J. Shannon and Barbara M. Shannon t/d/b/a "lnsty-Print" in an "as is" condition to Tenant and Tenant shall be responsible at its sole cost and expense for all demolition and repair of this portion of the Premises. The Landlord, upon delivery of the Premises, shall provide at its sole cost and expense the following work to the remainder of the Premises (the Landlord's work): (1) All sheetrock, perimeter walls including taping and spackling, which shall not include demising walls. (2) concrete floor ready to subgrade. (3) lay-in ceiling with standard fluorescent fixtures. . (4) three (3) separate 200 amp electrical service boxes and electrical outlets every eight (8) feet around the perimeter of the Premises. (5) installation of laterals to provide water and sewer service within the Premises for connection by Tenant. The Landlord may elect to allow Tenant to undertake all or a portion of the Lalldlord's work, with the amount of credit afforded to Tenant not to be less than the Landlord's construction bids for Landlord's work. Tenant shall deduct the 2 ~ . amount of such credit from its fixed monthly rent, as set forth in Section 3.1, until said credit is satisfied in full. (b) Tenant at all times shall not permit a mechanic's lien or other similar lien to be placed on the Premises, Tenant's fixtures, equipment or the Center. In the event any lien shall at any time, whether before, during or after the Lease term, be filed against any part of the Premises or Center by reason of work, labor or services performed or materials furnished to or as a result of any work or act of Tenant, (its successors or assigns, agents, employees, subtenants, licensees or concessionaires), Tenant shall forthwith cause the lien to be discharged of record or bonded to the satisfaction of the Landlord. If Tenant shall fail to cause such lien to be so discharged or bonded with security acceptable to Landlord within five (5) days after being notified of the filing thereof, then, in addition to any other right or remedy of Landlord, Landlord may discharge the lien (or cause same to be discharged) by paying the amount claimed to be due or bond against the lien and all sums, costs and expenses, including, without limitation, reasonable attorney's fees, disbursements and court costs incurred in producing the discharge of the lien, procuring the bond or defending against such lien shall be due and payable by Tenant to Landlord upon demand. (c) All work done by Tenant shall be governed in all respects by, and be subject to, the following: 3 /~ ,. (1) Tenant agrees not to commenca work on Tenant Improvements until Tenant has secured Landlord's written approval of the architect and all contractor::; to be used 1n performing Tenant Improvements and that or the plans and specifications to be submitted by Tenant to Landlord, which shall not be unreasonably withheld or delayed. Tenant Improvements shall be coordinated with the work being done by the Landlord to such a degree that performance of such Tenant Improvements will not interfere with or delay the completion of work by Landlord. Landlord shall have the right to require Tenar.tto furnish, a bond or other security in form satisfactory to Landlord for the prompt and faithful performance by Tenant of Tenant Improvements. In addition, Tenant shall furnish to Landlord copies of all permits, contractor's affidavits, waivers of lien and certificates of insurance covering all work. (2) Tenant Improvements shall be pertormed in a first-class workmanlike manner and shall be in good and usable condition at the dates of completion thereof. (3) Landlord shall have the right (but shall not be obligated) to perform by its own contractor or subcontractor, on behalf of and for the account of Tenant, any Tenant Improvements which Landlord determines should be so performed. Generally, such work shall be work which affects any structural components of or the general utility system for the Building. If Landlord so determines, it shall so notify Tenant prior to the commencement of such work by Tenant. Tenant shall promptly, on 4 /tJ . deman.d, relmburse Lessor for all en,]lneeL-ing and architectural costs and cost of performing such work when and as incurred by Landlord and for all perrnlts In connectlon therewith. (4) All Tenant Improvements sh<l Ll conform to the requirements of Landlord's fire underwriter, and to applicable statutes, ordinances, regulations, codes and requirements. Tenant shall obtain and convey to Landlord all approvals with rspect to electrical, gas, water, heating and cooling, and telephone work, all as may be required by the utility company supplying the service. (5) No approval by Landlord shall be deemed valid unless the same shall be in writing and signed by Cumberland Property Management as agent. (6) Tenant shall be responsible for all work within the leased Premises other than Landlord's work as specified in Section 1.3(a). All work shall be in strict accord with applicable local building codes. Tenant shall obtain a ~uilding permit prior to beginning work on Tenant Improvements and furnish a copy of such permit to the Landlord. (7) Tenant and Tenant's contractors shall carry liability insurance covering all work in the Leased Premises in amounts and with coverages reasonably required by Landlord and incudinq contractual liability covering Tenant's indemnity obligations under the Lease and this section. The Tenant shall furnish to the Landlord upo~ request certificates or policies of insurance 5 .4 . naming the Landlord, its beneficiary and their respective agents, as additional named insured. (8) To the extent not expressly prohibited by law, Tenant agrees to hold Landlord and its beneficiary, and their respective agents, servants, and employees harmless and to indemnify each of them against claims and liabilities, including reasonable attorney's fees, for injuries to all persons and damages to or theft or misappropriation or loss of property occurring in or about the Premises arising out of the performance of Tennt Improvements by Tenant and Tenant's contractors, but only to the extent of Landlord's liability, if any, in excess of amounts, if any, paid to Landlord under insurance covering such claims or liabilities. Section 1.4. All Tenant Improvements, installations, additions, partitions, hardware, light fixtures, non-trade fixtures and improvements, temporary or permanent, except movable furniture, trade fixtures and equipment (other than Tenant Improvements) belonging to Tenant, in or upon the Premises, whether placed there by Tenant or Landlord, shall, upon expiration of this Lease or any renewal term or termination, become the Landlord's property and shall remain upon the Premises, all without compensation, allowance or credit to Tenant I provided, however, that if prior to such termination or within ten (10) days thereafter Landlord so directs by notice, Tenant, at Tenant's sole cost and expense, shall promptly remove such of the installations, additions, partitions, hardware, light 6 -4 fixtures, non-cradd fixtures and improvements placed in the Premises by Tenant as ar8 designated in such notice and restore the Premise;] to the saml2 c\.Jndltion it T~US at the commencement of the Lease. In the event Tenant fails to remove those items specifically stated herein, Landlord may remove the same and restore the Premises, and Tenant shall pay the cost thereof to Landlord on demand. All movable furniture, trade fixtures and ~quipment (other than Tenant Improvements) placed on the Premises by Tenant shall remain the property of Tenant and may be removed in whole or in part by Tenant at any time and from time to time during the Term, provided (a) any such trade fixtures and equipment removed during the Term shall be replaced with trade fixtures and equipment of like quality; and (b) any damage caused by such removal shall be repaired by Tenant at Tenant's expense. Tenant shall leave in place any floor covering without compensation to Tenant. Tenant shall also remove Tenant's furniture, machinery, safes, trade fixtures and other items of movable personal property of every kind and description from the Premises and restore any damage to the Premises caused thereby, such removal and restoration to be performed prior co the end of the Term or ten (10) days following termination of this Lease or Tenant's right of possession, whichever might be earlier, failing which Landlord may do so. All obligations of Tenant hereunder shall be treated as additional rent anc survive the expiration of the Term or sooner termination of this Lease. 7 .-..<e . AR'r rCI,p' r 1 . TF:H.M Section 2.1. The torm of this Lease shall be for a demised term consisting of Fivo (5) years, cOIlU1\encing September 1, 1990 or the date which Tenant shall open business to the public, whichever date shall first occur. Landlord and Tenant shall, immediately following the data of commencement of the demised term, confirm by instrument ("Commencement Date Statement") the beginning and expiration of the demised term. Tenant shall execute such statement within five (5) days following submission thereon to Tenant for purposes of confirming the commencement date. Failure of Tenant to do so shall not render same ineffective. Provided Tenant is not in default at the time it exercises its option to renew, Tenant shall have the.opt~on.to ~.. renew this Lease for one (1) additional five (5) year term by giving written notice to Landlord, by certified mail, return- receipt requested, of such intention to renew not less than one. .".'.. -...- .... hundred eighty (180) days prior to the expiration of the existing term. Such renewal shall be at the terms, conditions and rents set forth herein, except that the fixed minimum rent shall be- increased pursuant to the terms set forth in Article III. ARTICLE III. RENT Section 3.1. The Tenant covenants and agrees to pay to Landlord, at its offices or such other place as Landlord may from time to time designate, as minimum guaranteed rent, hereinafter called "Minimum Rent '. for the Premises during the term of this 8 A l\R'l'LG.U': v. t~XP ~li;j.r;~ Section 5.1. (al In adJitLon to the! NinLmu11I Rent set forth in Articlo 3.1, Tenant shall pay as additional rent a proportionate share of Landlord's cost for utilities (including Landlord's utility costs for the Premises), realty taxes, and Common Area Maintenance Costs and Repairs, (as such terms are defined herein), which exceed Three Dollars and Fifty Cents ($3.50) per square foot per annum. ~enant's proportionate share shall be calculated as a fraction which shall have as its numerator the rentable floor area of the Premises and which shall have as its denominator the rentable floor area of the Center. (b) Within thirty (30) days following the expiration of each calendar year, Landlord shall submit to Tenant a statement prepared by Landlord or its accountants summarizing the various amounts incurred during such calendar year for Expenses. Within ten (10) days following submission of such annual statement, Tenant shall pay to Landlord its proportionate share of Expenses as defined herein. (c) For the purpose of this Lease, "floor area" shall be deemed to mean the actual number of squa=e feet of floor space measured from the exterior face of all exterior walls, without deduction for any space occupied by or used by columns, stairs or other interior construction or equipment except for the floor area of the elevator shaft, and the center line of all party 10 ~ - wa:ls and shall include the totality of tho area within such boundaries. Section 5.2. For the purposes of this Luase, tho term "Real Estate Taxes" shall mean taxes, rates and assessments, general and special, levied, assessed or imposed by any lawful authority, falling in whole or in part during the term of this Lease, with respect to the land, buildings, and improvements (whether or not the same are assessed as real or personal) located or built within the Center, including all taxes, rates and assessments, general and special, and front foot benefit charges, levied or imposed for school, public betterment, general or local improvements and operations and taxes imposed in connection with any special taxing district. If the method of real estate taxation shall be altered or varied and any new tax, excise, assessment or levy shall be levied or imposed on the land, buildings and improvements within the Center, and/or on any entity having an ownership interest in the Center, directly or indirectly, in lieu of, in substitution for or as a supplement to any Real Estate Taxes presently levied or imposed in the jurisdiction which the Premises are located, then any such new tax, excise, assessment or levy shall be included within the term Real Estate Taxes. Should any governmental taxing authority presently or hereafter levy, assess, or impose a tax, excise and/or assessment, however described (other than an income or franchise tax based upon the net income with respect to the Center), upon, against, on account of, or measured by, in whole 11 ,e or in part, the rent expressly reserved hereunder, or upon the rent expressly reserved under any other leases or leasehold interests in the Center, as a substitute (in whole or in part) (or in addition to any existing Real Estate Taxes), such tax or excise on rents shall be included within the term Real Estate Taxes. Reasonable expenses, including reasonable attorneys' fees, expert witness fees and sunilar costs, incurred in contesting or obtaining or attempting to obtain a reduction of any Real Estate Taxes or assessed valuations shall be added to and included in the amount of any such Real Estate Taxes. . Real Estate Taxes which are being contested shall nevertheless be included for purposes of the computation of the liability of Tenant under this Lease, provided, however, that in the event that Tenant shall have paid any Real Estate Taxes and a refund of any portion of any Real Estate Taxes on which such payment shall have been based is thereafter received, Landlord shall credit to Tenant the appropriate portion of such refund. Landlord shall have no obligation to contest, object or litigate the levying or imposition of any Real Estate Taxes and may settle, compromise, consent to, waive or otherwise determine in its discretion to abandon any contest with respect to the amount of any Real Estate Taxes without consent or approval of the Tenant. If either the Commencement Date or expiration date of this Lease shall not coincide with the beginning or end (as the case may be) of a full lease year, then in computing the amount payable under Section 5.1 for the period between the comencement and/or expiration of 12 ....-Jl the applicable full leasiJ year in ques tion and the COllunencemcnt Date and/or expiration date of this Lease, Tenant's proportionate share of Real Estate Taxes for the applicable full lease year shall be equitably apportioned (on a per diom basis) so that Tenant shall pay only such portion of such Real Estate Taxes as is attributable to the portion of such full lease year occurring during the term of this Lease. Tenant's obligation to pay Real Estate Taxes under Section 6.2 for the final lease year shall survive the expiration and/or termination of the term of this Lease. A tax bill or true copy thereof, together with any. explanatory statement of the area or property covered thereby, submitted by Landlord to Tenant shall be conclusive evidence of the amount of taxes assessed or levied, as well as of the items taxed. If any real property tax or assessment levied against the land, building or improvements covered hereby or the rents reserved therefrom, shall be evidenced by improvement bonds or other bonds, or in any other form, which may be paid in annual installments, on~y the amount paid or payable in any lease year shall be included as Real Estate Taxes for that lease year for purposes of Section 5.2. If the Center consists of separate tax parcels, then the Real Estate Taxes with respect to all of said separate tax parcels (whether owned by Landlord and/or any entity or entities under common control with Landlord) shall be included as part of Real Estate Taxes for the purpose of this Lease. 13 -LP/ AR'PICLE VI. U'PILI'PIES , 'I'HASH IU:MOV~I,. JANI'l'ORIAI, EXPENSES AND WINDOW CLEANING Section 6.1. The Landlord shall pay as and when they become due, directly to the company or utility providing the utility service, all charges for gas, electricity, water and sewer, light, heat and power subject to the Tenant's proportionate share as set forth in Article 6.1. Telephone or other communication service shall be the direct and sole expense of the Tenant. Section 6.2. The Tenant shall not permit the accumulation of rubbish, trash, garbage or other refuse in and around the Premises, will remove the same at Tenant's expense, and will keep such refuse in proper containers in the interior of the Premises until removal by Tenant to the collection area designated by the Landlord. All such rubbish, trash, garbage and other refuse shall be kept in areas designated by the Landlord, and in no other location of the Center. In the event Tenant fails to remove any accumulation of rubbish not being kept in a designated area within one (1) day after notice by Landlord to remove the same, Landlord shall have the right, in addition to all other remedies, but without obligation to do so, to remove the same at the cost and expense of the Tenant and Tenant shall pay to Landlord, on demand, the cost and expense therefor. In the event any local or other governmental authority shall levy a service fee or other charge for the collection and removal of Tenant's refuse, Tenant shall pay promptly when due said fee or charge for 14 /' such service. Section 6.3. Tenant shall be responsible for all janitorial services for the premises, at its sole cost and expense, which shall be provided by a reputable cleaning entity no less than twice per week. Section '6.4 Tenant shall be responsible, at its sole cost and expense, for window cleaning of the Premises, both interior and exterior, which shall be provided for by a reputable window- cleaning entity, no less than twice in each calendar year. ARTICLE VI I. PERMITTED USE Section 7.l. The leased Premises may be used for the purpose of medical diagnostic testing laboratory and/or specimen collection centre and/or such other paramedical uses as may be agreed between the parties, and for associated administration and storage purposes. To the intent that this covenant shall be for the benefit of the Premises, the Landlord covenants and agrees that throughout the Term of this Lease and any renewal thereof, it will not occupy or use or suffer or permit to be occupied or used any other premises in the building or adjoining lands or buildings under the control of the Landlord for the purpose in whole or in part of carrying on any function of the business of the taking or collecting by any means of medical laboratory specimens and/or a medical laboratory service and/or specimen collection service. The term "specimen collection service" means the taking or collecting of specimens from the human body or 15 r/ where specimens are received from other sources for examination to obtain information for diagnosis, prophylaxis or treatment. Provided this clause shall not prohibit a physician, in the ordinary course of conducting his medical practice, from personally taking laboratory specimens from his own patients in his own premises. Tenants' use of the leased Premises shall comply with all requirements of laws, ordinances, regulations, standards and statutes pertaining to the leased Premises including those relating to labour, industry, zoning, occupational safety and health. The Tenant shall indemnify and hold the Landlord harmless from any loss resulting from the violation by the Tenant of such statutes. Section 7.2. The Tenant covenants that at no time or times will the Tenant use or permit to be used the leased Premises or any part thereof, for any unlawful or illegal purpose or in any unlawful or illegal manner, or for the conduct of any public auction and that the Tenant will not carry on the business under any name or in any manner or permit any advertising which might, in the reasonable judgment of the Landlord, reflect, or tend to reflect adversely on the building erected or to be erected by the Landlord, or confuse or mislead, or tend to confuse or mislead the public in any apparent connection or relationship betwseen the Landlord and the Tenant. Section 7.3. Hazardous Activitv. Tenant agrees that it will not do or suffer to be done or keep or suffer to be kept, anything in, upon or about the Premises which will contravene the 16 -~ insurance policies insuring the Center against loss or damage by fire or other hazards, or which will prevent the procuring of such policies in companies acceptable to Landlord; and if anything done, omitted to be done or suffered to be done by Tenant, or kept, or suffered by Tenant to be kept, in, upon or about the Premises shall cause the rate of fire or other insurance on the Premises or the Center to be increased beyond the minimum rate from time to time applicable to the Premises for use for the purposes permitted under this Lease or to such other Center property for the use or uses made thereof, Tenant will pay the amount of such increase promptly upon Landlord's demand. ARTICLE VIII. PARKING Section 8.1. The Landlord shall provide, at no additional cost to Tenant, not less then twenty (20) parking stalls situated on the adjoining property specifically reserved for and assigned to the Tenant. The location and specification of such parking stalls is set forth on the plan attached hereto as Exhibit "C". The Landlord further agrees to provide at no additional cost 4 parking stalls located immediately adjacent to the rear entrance. of the leased Premises reserved exclusively for the Tenant. However, in the event that the adjoining property is sold or leased, the reservation of such twenty (20) parking spaces shall terminate immediately, and Landlord shall, without any cost to Tenant, provide alternative parking to Tenant. Tenant expressly 17 ff acknowledges that tho ilgrOEJmont to provldu >>ueh rhlrklll'J l:rUo'ltoll no leasehold interest in tho adjolni/H) prOpol'ty for' tho 'l'Ull.lOt. AH'l'lcr.F: IX. C_QMMOI!-1\!i!';!\~! Section 9.1. Use of Common Arn.!H!..... 'I'ho tonn "Cllllunon areas" as used in this LOilso shilll moan tho pdrkinu "'uilll, driveways, walkways, landscaped areas, bO["ll\B ilnd othor .1rOilll and improvements which may be provided for tho convunLonca and use of the occupants and tenants of tho Centor. During tho torm of this Lease, and subject to the provisions of this LOilSO, Tenant!s usa and occupancy of the Premises shall include the non-exclusive use, in common with all others granted rights to use the same and for whose convenience and use the common areas are intended (including, but not limited to Landlord, the owners, occupants and tenants of the Center, and their respective officers, employees, agents, customers, business guests, liceHsees and invitees), of the common areasJ provided, however, that such use by Tenant shall be subject to such reasonable rules and regulations governing the same from time to time; and provided, further, that Landlord or any entity or entities under common control with Landlord shall at all times have full control, management and direction of said common areas, and that Landlord or any entity or entities under common control with Landlord shall have the right at any time to change the layout thereof, including the right to reasonably add to or subtract from their shape and size, as well as to alter their location, provided, 18 .A: however, that reasonable efforts wlll be made not to unreasonably interfere with Tenant's access to the Premises. Sect:.ion 9.2. R lqht t:.o C 1050. Common ,'\reas. Landlord or any entity or entit:.ites under common cont:.rol with Landlord shall have the right to close any or all portions of the common areas to such extent as may, in the opinion of legal counsel, be legally sufficient to prevent a dedication thereof or the accrual of any rights to any person or to the public therein, and to close temporarily, if necessary, any part of the common areas in order to discourage non-customer parking and in the exercise of any repair and maintenance obligations or other rights herein reserved with respect to the common areas. If the amount or nature of the common areas and facilities are diminished, this Lease shall remain in full,.force and effect, and Landlord shall not be subject to any liability nor will Tenant be entitled to any compensation or diminution of rent, nor shall diminution of such common areas and facilities be deemed constructive or actual eviction. Section 9.3. Common Area Reoairs. Landlord shall arrange for the care, maintenance and repair of the common areas on the Center including, but not limited to, repairing, replacing and restriping paved parking areas when needed, keeping common areas reasonably clear of litter and snow, maintaining any plants and landscaped areas and keeping common areas reasonably lighted at times when the stores in the Center are required to be open for business. 19 """ -,., Section 9.4. Repairs bv k~~dl~~~!. Lundlord shall keep and maintain the foundation, roof and structural portions of the walls of the building in which tho Prumis8S aru located in good condition and repair at Landlord's solo cost and expense, provided Tenant shall provide Landlord wlth prompt written notice of the necessity therefor. Except as otherwise provided in this Lease, Landlord shall bo under no obligation to inspect or repair any part of the Premises. Landlord shall secure service contracts for the heating and air-conditioning units for the Premises. The cost of such service contracts shall be the, sole expense of the Tenant. Tenant shall report, in writing, to Landlord any defective condition actually known to Tenant which Landlord is required to repair., within ton (10) days. Landlord shall have a reasonable time after receip~ of notice from Tenant to commence and complete repairs required of Landlord hereunder. The provisions of this Section regarding Landlord's obligations shall not apply in the case of damage or destruction by fire or other casualty or by eminent domain, in which event the obligations of Landlord shall be controlled by either Article XIV or Article XV hereof. Section 9.5. Repair and Common Area Maintenance Costs. Repair and Common Area Maintenance Costs shall include all expenses actually incurred which are necessary, appropriate and/or beneficial generally to the operation, maintenance, management and repair of the Center, and the costs incurred for management of ~he Center and shall also include, without 20 limitation, costs and expenses for those items hereinafter set forth in the attached Exhibit "D". In accordance with Section 6.1, Tenant shall pay to Landlord its proportionate share of all Repair and COlnmon Area Haintenance Costs. Section 9.6. Reoairs by Tenant. Tenant shall keep and maintain the Premises and any fixtures, facilities or equipment contained therein in good condition and repair, including, but not limited to, the heating, air conditioning, electrical, plumbing systems, the exterior doors and window frames and shall make any replacement thereof and of all broken and cracked, plate glass as may become necessary during the term of this Lease, excepting, however, such repairs and replacements as are the obligations of Landlord under Section 10.4 hereof. If Tenant refuses or neglects to commence or complete repairs promptly and adequately, Landlord may, but shall not be required to do so, make or complete said repairs and Tenant shall pay the cost thereof to Landlord upon demand. ARTICLE X. INSURANCE Section 10.1 Liability Insurance. Tenant further covenants that Tenant will at all times during the Term, at Tenant's own expense, maintain and keep in force for the mutual benefit of Landlord and Tenant, general public liability insurance against claims for personal injury, death or property damage occurring in, on or about the Premises to afford protection to the limit of not less than One Million 21 /x! ($1,000,000.00) Dollars combined for both bodily injury and physical damage as the result of any ono occurrence. Tenant shall deliver to Landlord a certificate of said insurance or renewals therefore from time to time during the Term of the Lease. Section 10.2 Landlord's Insurance. Landlord agrees that throughout the term of this Lease (i) the common areas of the Center will be covered by public liability insurance with a minimum combined coverage for bodily injury and property damage of One Million Dollars ($1,000,000.00) and (ii) all buildings and improvements now or hereafter erected on the Center will be covered by "all risk" property insurance for the full replacement cost of such buildings and improvements. The premiums for such insurance shall be included as part of Repair and Common Area Maintenance Cost and Tenant shall pay to Landlord its proportionate share thereof in accordance with Section 6.1 hereof. ARTICLE: XI. SUBROGATION Section 11.1. Each party waives rights of subrogation against the other with respect to any insured risks to the extent such waiver does not invalidate such insurance or reduce the proceeds. 22 he ARTICLE XII. SIGNS AND t:X'r.f:R.roH A'l'TACHM[~.N'I'S Section 12.1 Tenant shall hdve the right to incorporate its trade name or store identification within the area or areas provided for by Landlordj provided, however, that any such signs shall strictly conform in number, color, style, design and in all other respects to the criteria established by the Landlord for Premises, and s~all conform to all local governmental regulations. Any such signage costs shall be paid for by Tenant and all repairs shall be the sole responsibility of Tenant, including replacement of light bulbs. ARTICLE XIII. FIRE AND OTlmR DAMAGE Section 13.1 In case of damage to the Premises by a risk insured against under Section 11.2, Landlord, unless Landlord shall otherwise elect as hereinafter provided, shall repair or cause to be repaired such damages with reasonable dispatch after receiving from the Tenant written notice of the damage. If the damages are such as to render the Premises untenantable, the rent shall be abated to an extent corresponding with the period during which and the extent to which the Premises have become untenantable; provided, however, if such damages are caused by the carelessness or negligence or improper conduct of Tenant or of a subtenant, or the agents, employees, visitors, invitees or licensees of Tenant or of a subtenant, then notwithstanding such damages and untenantability, Tenant shall be liable for rent without abatement. In the event of damage or destruction to the 23 ,# Premises to tho extent of rendering more than fifty porcent (50\) of the floor area of Premisez untenantable, Tenant shall give Landlord written notice of the damage (but failure to give notice shall not be binding upon Landlord), in which event all rent shall abate. If, in the o~inion of a licensed professional engineer or similar ~rofessional that the damage or destruction is inca~able of re~air within 180 days after its occurrance, either party may elect to terminate this Lease by providing written notice of such election within ninety (90) days after the occurrence of such damage or destruction. ARTICLE XIV. CONDEMNATION Section 14.1. The Tenant may, at Tenant's option, terminate this Lease if any portion of the Premises is condemned by any governmental body or by any other body or organization possessing the power of condemnation, provided such condemnation substantially impairs the use or enjoyment by Tenant of the Premises. In case of the ta~ing through eminent domain of all or any portion of the Premises, the Landlord shall notify the Tenant in writing of such taking. Within sixty (60) days after receipt of such written notice, the Tenant shall notify the Landlord, in writing, whether such taking through eminent domain, in the reasonable opinion of the Tenant, substantially impairs Tenant's use or enjoyment of the Premises. If the Tenant's decision on this matter is in the affirmative, then Tenant shall also include in said notice the time when Tenant desires to terminate the 24 ft Lease and on such data the Lease and tho Term hereof shall terminate, which time shall not be earlier than physical work (other than surveying and staking out) shall be instituted on the Premises by the condemning authority, nor later than sixty (60) days after the same time. The failure of the Tenant to give notice above set forth as required and within the time limit set forth above shall be conclusively construed as a decision on the Tenant's part that such taking does not substantially impair Tenant's use or enjoyment of the Premises. On the other hand, the giving of such notice by the Tenant does not bind the ' Landlord as to the correctness of the Tenant's decision that Tenant's use of the premises is substantially impaired by the taking. ARTICLE XV. NONLIABILITY OF LANDLORD Section 15.1. The Landlord shall not be liable to the Tenant, any officer, employee, agent, invitee, licensee or visitor of the Tenant, or any other person, for damage or injury to any person or property caused, in whole or in part, by any act, omission or neglect of Tenant, Tenant's contractors, employees, agents, invitees, licensees or visitors, or any happening in any manner on the Premises, and Tenant shall indemnify, defend and hold harmless Landlord from any claim, loss or liability therefore, including reasonable attorney's fees. Section 15.2. All property kept, stored or maintained on the Premises shall be so kept, stored or maintained at the risk 25 fi of the Tenant only, and the Landlord shall not be liable for any loss or damage to t.he 'l'enant. or 'l'cnant' s property. ARTICI,E XVI. ASSIGNMEN'l' Section 16.1. The Tenant shall not have the right to sell, assign, transfer, mortgage, pledge, sublease or sublet the Premises wi~hout the Landlord's prior written consent, which shall not be unreasonably withheld. In t.he event that the Tenant proposes to sublease or sublet the Premises or any portion thereof, Tenant shall give to Landlord written notice, which notice shall set forth: (i) the ident.ity, business and financial condition of the proposed subtenant; the terms and conditions of the proposed sublease; any other relevant information requested by Landlord; and an offer by Tenant and the proposed subtenant for the release of Tenant from this Lease and the establishment of the Landlord-Tenant relationship between Landlord and the proposed subtenant under the terms and conditions of the proposed sublease. Landlord shall have the right to: withhold consent, if reasonable; grant consent (in which case Tenant and Landlord shall divide equally any increase in Rent); or (ii) (iii) (iv) (i) (ii) 26 A" release Tenant from this Ledse and accept the offer of the proposed subtenant to establish the Lanrtlord-Tunant raldtlonship between Landlord and tho proposed subtenant under the terms and conditions of the proposed sublease. In the event that the proposed sublease is of a portion of the Premises, and Landlord consents to the sublease, the Rent in this Lease shall be prorated between the portion proposed to be subleased and the balance of the Premises on a square foot basis. Section 16.2. The consent by Landlord to any assignment, transfer, or subletting to any party shall not be construed as a waiver or release of Tenant under the terms of any covenant or obligation under this Lease or as a waiver or release of the non- assignability covenants in their future application, nor shall the collection or acceptance of rent from any such assignee, transferee, subtenant or occupant constitute a waiver or release of Tenant of any covenant or obligation contained in this Lease. If this Lease is transferred or assigned, as aforesaid, or if the Premises or any part thereof be sublet or occupied by any person or entity other than Tenant, whether as a result of any act or omission by Tenant, or by operation of law, or otherwise, then Landlord, whether before or after default by Tenant, may, in addition to, and not in diminution of or substitution for, any other rights and remedies under this Lease or pursuant to law to which Landlord may be entitled as a result thereof, collect rent from the transferee, assignee, subtenant or occupant and apply (iii) 27 ~ the net amount collected to tho rent herein reser.ved, but no such transfer, assLgnment, sublettLng, occupancy or collection shall be deemed a waiver of the covenant3 contained herein or the acceptance of the tran~fer8e, assignee, subtenant, or occupant as the tenant, or a relea:Je of 'renant from the further performance by Tenant of covenants on the part of Tenant set forth in this Lease. Section 16.3. If Tenant is a corporation, then the sale, issuance or transfer of any voting capital stock of Tenant or of any corporate entity which directly or indirectly controls, Tenant (unless Tenant is a corporation whose stock is traded on the Toronto Stock Exchange or the New York Stock Exchange or the American Stock Exchange) which shall result in a change in the voting control of Tenant or the corporate entity which controls Tenant shall be deemed to be a prohibited assignment of this Lease within the meaning of this Article XVI. If Tenant is a partnership or an unincorporated asssociation, then the sale, issuance or transfer of a majority interest therein, or the transfer of a majority interest in or a change in the voting control of any partnership or unincorporated association or corporation which directly or indirectly controls Tenant, or the transfer of any portion or all of any general partnership or managing partnership interest, shall be deemed to be a prohibited assignment of this Lease within the meaning of this Article XVI, 28 ft hRTrsLE XY:IT. VQI,UN'rJ\RY OfLJNVm,UN'l'MY ASS I GNM"f:N'r Section 17.1. Naithe~ this Lea3B no~ any interest herein shall be assignable O~ otherNLse transferable by operation of law or by voluntary assignment or for the benefit of creditors without the written consent of the Landlord, and such inhibitation against voluntary assignment includes and comprehends any and every assignment which might otherwise be affected or accomplished by bankruptcy, receivership, attachment, execution or other judicial process or proceeding. If any assignment for the benefit of Tenant's creditors should b& made by the Tenant, or if a voluntary or involuntary petition in bankruptcy or for reorganization or for an arrangement should be filed by or against the Tenant and not dismissed within ninety (90) days, or if the Tenant should be adjudicated a bankrupt or insolvent, or if a receiver is appointed of or for the Tenant, or for all or a substantial part of Tenant's property, or of such assignment or transfer by operation of law should occur, then and in any such event, the Landlord may, at Landlord's option, terminate this Lease by notice to the Tenant. The provisions of this paragraph shall not apply to any of the rights, titles and interests of the Landlord in, to or under this Lease. ARTICLE XV1:II. EVENTS OF DEFAULT Section 18.1 If Tenant fails to pay any installment of Rent promptly on the day when due and payable hereunder and ~ receives notice from Landlord of nonpayment and shall continue in 29 ft- default for a period of ten (10) days, or if Tenant shall fail to promptly keep and perform any other affirmative covenant or agreement of this Loase, strlctly in accord<lnce with the terms hereof and shall continue in default for a period of twenty (20) days after written notice thereof by Landlord of default and demand of performance or compliance, then such shall be an Event of Default. If any default shall occur, other than in the payment of money, which cannot with due diligence be cured within such period of twenty (20) days from and after the giving of notice as aforesaid, and Tenant commences to cure such default and proceeds diligently and with reasonable dispatch to take all steps and do all work required to continue to cure such default and does so cure such default, then Landlord shall not have the right to declare any Event of Default. Any of the following shall also constitute an Event of Default: Tenant is adjudicated a bankrupt, institutes proceedings for a reorganization or for an arrangement under the Bankruptcy Act, or any involuntary petition in bankruptcy is filed against Tenant, which is not dismissed within ninety (90) days, If Tenant shall remove from the premises during the term or renewal term of this Lease for fourteen consecutive business days, or cease to use or occupy the same as herein provided for fourteen consecutive business days, Landlord may, at its option and after five (5) days written notice to the Tenant of Notice of its intention to do so, immediately and without liability therefore, re-enter said premises and lease the said premises to 30 6 any other person or persons, and said Tenant shall be liable for any loss in rent for the balance of the then current term. Secti.on 18.2. I,,1n..llo.rd Ri'lhts. Upon an Event of Default, Landlord may, with ten (10) day's notice, declare a default, and upon a default, Landlord may: (a) declare an amount or amounts equal to the Rental which, but for termination of this Lease, would have become due during the remainder of the Term or renewal term immediately due and payable, less the amount or amounts of rental, if any, which Landlord shall receive during such period from others to whom the Premises may be rented (other than any Additional Rental received by Landlord as a result of any faiure of such other person to perform any of its obligations to Landlord), in which case such amount or amounts shall be computed and payable at Landlord's option either in an accelerated lump sum payment in an amount equal to the total rentals due for the remaining Term of the Lease or pament in monthly installments, in advance, on the fi~8t day of each calendar month following termiantion of the Lease and continuing until the date on which the Term would have expired but for such termination. Any suit or action brought to collect any such Liquidatec Damages for any month shall not in any manner prejudice the right of Landlord to collect any amount or amounts for any subsequent month by a similar proceeding. (b) Enter into the Premises or any part thereof, in accordance with process of law, and expel Tenant or any person 31 A occupying the same using such foeco a5 may ba n'Jcessary and relet the Premi~es foe tho rr8ndrlt's account. (el It Tcn,lnt shalL ddtduLt Ln the pd'jmlJnt of the rent hereir. resoeved or in thiJ payment of any ochee sums due heeeunder by Tenant, Tenant hereby authorLzes and empowers any prothonotary or attorney of any court of record to appear for Tenant in any and all actions which may be brought foe said Rent and/or said other sums and/or to sign foe Tenant an agreement for entering in any competent court an amicable action or actions for the recovery of said rental and/or other sums; and, in said suits or in said amicable action or actions, to confess judgmen't against Tenant for all or any part of said rental and/or said other sums, including, but not limited to the amounts due from Tenant to Landlord, and for interest and costs, together with any attorney's commission for collection of ten (lOt) percent. Such authority shall not be exhausted by one exercise thereof, but judgment may be confessed as aforesaid from time to time as often as any of said and/or other sums shall fall due or be in arrears, and such powers may be exercised as well after the expiration of the initial Term of this Lease and/or during any extended or renewal term of this Lease and/or after the expiration of any extended or renewal term of this Lease. (d) When this Lease and the Term or any extension or renewal thereof shall have been terminated on account of any default by Tenant hereunder and also when the Term hereby created or any extension or renewal thereof shall have expired, it shall 32 ;A ba lawful for any attorney of any court of record to appear as attorney for Tenant, as woll as for all persons claiming by, throug~ or under Tenant, and to sign an agreement for entering in any competent court an amicable action in ejectment against Tenant and all persons claiming by, through or under Tenant and t~erein confess judgment for recovery by Landlord of possession of the PremIses, for which this Lease shall be its sufficient warrant; thereupon, if Landlord so desires, an appropriate writ of possession may issue forthwith without any prior writ or proceeding whatsoever, and provided that, if for any reason after such action shall have been commenced, it shall be determined that possession of the Premises remain in or be restored to Tenant, Landlord shall have the right for the same default and upon any subsequent default or defaults, or upon the termination of this Lease or Tenant's right of possession as hereinbefore set forth, to bring one or more further amicable action or actions as hereinbefo~e set forth to recover possession of the Premises and confess judgment for the recovery of possession of the Premises as hereinbefore provide. (e) Exercise any or all such rights as are available to Landlord by law. All rights and remedies available herein or by law shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or equity. 33 # MIT.rcu~t~~QLn r NCL..Q'yliJ! Section 19 .1. Sll~r:-ende~ and Hol~linCJ Ov',t". 1'onant shall deliver upon and sur:-r:-ender to Landlord possession of tho Premises and upon the expiration of the Lease, or its termination in any way, in as good condition and repair as the same shall be at the commencement of said term (damage by fire and ordinary wear and decay only excepted), and shall deliver ~he keys at the office of Landlord or Landlord's agent. Should Tenant or any party claiming under Tenant remain in possession of the Premises, or any part thereof, after expiration of any termination of this Lease, no tenancy or interest in the Premises shall result therefrom but such holding over shall be an unlawful detainer and all such parties shall be subject to immediate eviction and removal, and Tenant shall upon demand pay to Landlord, as liquidated damages, a sum equal to double the Minimum Rent as!': specified herein for any period during which Tenant shall hold the Premises after the stipulated term of this Lease may have expired or terminated. ARTICLE XX. MISCELLANEOUS Section 20.1. Interest and Collection Exoenses. Interest shall accrue on any monies due from Tenant to Landlord from the date the same are due (including Rent and monies advanced by Landlord to others on account of the failure of Tenant to perform hereunder) at the annual prime interest rate as established from time to time by Dauphin Deposit Bank and Trust Company, 34 ~.f' Harrisburg, Pennsylvania, plus three (3&) percent per annum. In event of default, Landlord shall be entitled to all attorney fees, court costs, charge~ and expenses if judgment in a court of competent jurisdiction is awarded to Landlord. Section 20.2. Subordination. Tenant shall subordinate Tenant's interest in the Premises to the lien, operation and effect of mortgages as requested by Landlord from time to time, and will promptly execute and deliver such agreement or agreements as may be reasonably required by any mortgagee or trustee. Section 20.3. Estoppel Certificates. At any time and from time to time, each party agrees, upon request in writing from the other party, to promptly without delay execute, acknowledge and deliver to such party a statement in writing certifying that this Lease is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect as modified and stating the modifications) and the date to which the Minimum Rent, additional rent, and other charges hereunder have been paid. In addition, Tenant agrees to furnish Landlord, upon request and after Tenant has opened its doors for business in the Premises, a letter addressed to Landlord's mortgagee or financial institution, giving the following information or any part thereof requested by Landlord: (i) that the Premises have been completed on or before the date of such letter and that all conditions precedent to the Lease taking effect have been carried out; (ii) that Tenant has accepted 35 I ,,-:/ possession of the Premises, that the Lei.lse t9rm has conunenced, that Tenant is occupying the Premises.and that Tenant knows of no default under the Lease by the Landlord; (iii) the actual commencement date of the Lease and the expiration date of the Lease; and (iv) that the Tenant's store is open for business. In the event the Tenant fails to provide such letter as above- described within ten (10) days after Landlord's written request therefor, Tenant does hereby make, constitute and irrevocably appoint Landlord as its attorney-in-fact and in its name, place and stead so to do. Section 20.4. Waiver of Subroaation. Landlord and Tenant hereby release the other from any and all liability or responsibility to the other or anyone claiming through or under them by way of subrogation or otherwise for any loss or damage to property caused by fire or any of the extended coverage or supplementary contract casualties, even if such fire or other casualty shall have been caused by the fault or negligence of the other party, or anyone for whom such party may be responsible, provided, however, that this release shall be applicable and in force and effect only with respect to loss or damage occurring during such time as the releasor's policies shall contain a clause or endorsement to the effect that any such release shall not adversely affect or impair said policies or prejudice the right of the releasor to recover thereunder. Each party shall obtain insurance policies containing such waiver of subrogation 36 // . clause(s) for all insurance policLos whlch relate to the Premises or use of the Premises. Section 20.5. ~!n!:~~"q,.ps' Rlqht t" Cur" r"Hldlord's Default. Tenant agrees that in the event the Landlord is in default under this Lease, any mortgagee or trustee under a deed of trust of Landlord's interest in the Premises, and the landlord under any ground or underlying lease which includes the Premises, shall be permitted (but not required) to enter the Premises during normal business hours for the purpose of correcting or remedying such default, and Tenant agrees to accept performance by such mortgagee, trustee, OJ: ground or underlying landlord in lieu of performance by the Landlord. Tenant further agrees that, from and after specific written request by Landlord to do so (which request sets forth the name and address of any mortgagee, trustee or ground or underlying landlord), Tenant will, simultaneously with the giving of any notice to Landlord as required or permitted hereunder, give a copy of such notice to such mortgagee, trustee or ground or underlying landlord and that any such notice to Landlord shall not be effective unless Tenant has simultaneously given such notice to such mortgagee, trustee or ground or underlying landlord. Section 20.6. Financinq, Tenant agrees to consent to, and to execute and deliver promptly upon each request from Landlord, such reasonable amendments to this Lease as may be requested by any bank, savings and loan association, insurance company or other institutional lender providing bona fide mortgage loans to 37 ..... Landlord in connection with the Canter (or any part thereof), or by any ground landlord (if any) of tho land al?purtenant thereto, provided, howev'-,r, thdt such d;l\Ondment:l do not impair or otharwise materially affect Tenant's leasehold interest in the Premises, and provided further that such amendments do not reduce, increase or change the te~n of this Lease, nor affect the rate or cost of rental and other obligations of Tenant hereunder, nor create any material obligations, liabilities, duties or responsibilities of any nature whatsoever upon the Tenant greater than those to which Tenant 1.s herein committed. Section 20.7. Additional Instruments. Tenant shall, at the request of Landlord, execute such additional instruments that Landlord or Landlord's mortgagee may request from time to time or as may be required or convenient hereunder, not inconsistent herewith. Section 20.B. Landlord's Covenant of Title and Ouiet En10vrnent. Landlord covenants and warrants that, upon the Term of the Lease commencing, Landlord shall have full right and lawful authority to enter into this Lease for the full Term hereof; that Landlord will be lawfully seized of the entire Premises and will have good title thereto; and that, at all times when Tenant is not in default under the terms and during the term of this Lease, Tenant's quiet and peaceable enjoyment of the Premises shall not be disturbed or interfered with by anyone. Landlord, in person or by agent, shall be permitted to enter upon 3B ,,-,1 the Premis'~s at reasonable times to e:<iunine the Sdl118 or to make such re9~irs as are required hec8unJIJr. S8ction 20.9. !:f2J:.L.::-.L.t--..':.~.t:~c~-~:-1.:i.;'2..CJ.-.i!lliL~~!Jli!1!.Ei.:. 'l'hLs Leaso shall inure to the benefit of and shall bind the respective heirs, successors and assigns of the parties to the extent that the parties' rights hereunder may succeed and be assigned according to the terms hereof. Section 20.10. Waiver. No waiver of any condition or legal right or remedy shall be implied by the failure of Landlord to declare a forefeiture, or for any other reason, and no waiver of any condition or covenant shall be valid unless it be in writing signed by the Landlord. No waiver by Landlord in respect to one tenant of the building in which the Premises are located shall constitute a waiver in favor of any other tenant, nor shall the waiver of a breach of any condition be claimed or pleased to excuse a future breach of the same condition or covenant. The mention in this Lease of any specific right or remedy shall not preclude Landlord from exercisir.g any other right or from having any other remedy or from maintaining any action to which it may be otherwise entitled either at law or in equity; and for the purpose of any suit by Landlord brought or based on this Lease, this Lease shall be construed to be a divisible contract, to the end that successive actions may be maintained as successive periodic sums shall mature under this Lease, and it is further agreed that failure to include in any suit or action any sum or 39 /1 hold Landlord harm10ss for any damages, liabil.ity and expenses (including reasonable attorney's fee),rising from any claim or demand of any other broker, brokers or finders for any commissions alleged to be due said broker, brokers or finders in connection with its participating in the negotiation of this lease. Section 20.13. Corporate Tenants. The persons executing this Lese on behalf of Tenant hereby covenant and warrant thatl Tenant is a duly constituted corporation qualified to do business in the state of Pennsylvania; all Tenant's franchises and corporate taxes have been paid to date; all future forms, reports, fees and other documents necessary for Tenant to comply with applicable laws will be filed by Tenant when due; and such persons are duly authorized by the board of directors of such corporation to execute and deliver this Lease on behalf of the corporation. Section 20.14. pennsvlvania Law. This agreement shall be construed under the laws of the Commonwealth of Pennsylvania. Section 20.15, Entire Aqreement. This Agreement represents the entire agreement between the parties hereto. There are not agreements, negotiations or representations, oral or written, other than as set forth herein, 41 P< . ...,... . ./, I , . / .... . , I. . r f j .. ! ,~ L ,: I T u .. ~ .b d /r, & . . . . ............ . . 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J l!..l (Y) , 'Z) {, J I' 8 ( ,J f . 4-\ .' a-- "5 IL 0,.- 0L ~ MCNEES. WA'~LACE 01 NURICK 100 PINE STREET r. o. .a. I'''. HARRISBURG, PA 17108 . . . .. $8,819.56 to be paid by Defendant, MDS Inc. accordina to the lease terms (emphasis added). It is denied that Defendants are so obligated for reasons hereinafter set forth in paragraph 7 and Defendants New Matter and counterclaim. The allegations set forth in paragraph 10 also constitute conclusions of law to which no response is required and same are therefore denied. 11. Admitted. 12. Admitted. 13. Denied. The allegations set forth in paragraph 13 constitute conclusions of law to which no response is required and same are therefore denied. To the extent which a response may be required, it is further denied that the Defen~ants, MDS Inc. and MDS Health Group Limited r.emain liable since by the express provisions of the Assignment of Leasehold Interest to Defendant, Metpath, Inc. ("Assignment") attached to Exhibit A of Plaintiff's Complaint, MDS Health Group, Inc. (predecessor to MDS Inc.) was released from all such liability as of January 1, 1992 and MDS Health Group Limited never was under such liability as it was never a party to the Lease. It is further denied that Defendants, Metpath, Inc. and Corning, have not discharged the Tenant's obligations under the Lease. 14. Admitted in part, denied in part. It is admitted that the Lease by its terms was due to expire on August 1, 1995 it i. denied that said lease did expire or terminate on August 31, 1995 as the Defendant's occupancy continued with Plaintiff's consent in contemplation of a new lease as aforesaid. 2 . A 15. Denied as stated. Both Plaintiff and Defendant, corning Clinical Laboratories, Inc. ("Corning") negotiated for a lease extension or a new lease, which did not materialize for reasons hereinafter set forth. 16. Admitted in part, denied in part. It is admitted that on the date of commencement of these proceedings Corning may have still occupied the leased premises, the premises were promptly vacated shortly thereafter for reasons hereinafter stated and Defendants do not remain in possession of the Premises. 17. Admitted in part, denied in part. It is admitted that Section 19.1 of the Lease contains a provision dealing with rent payments to be made if the Tenant shall not surrender the premises and be holding over "after the expiration of the Lease". It is denied that Defendant, corning, ever was a holdover tenant within the context contemplated in said Section 19.1. Paragraph 17 also contains conclusions of law as to Defendant's obligations to pay double minimum rent to which a response is not required and same are denied. By way of further denial, Defendants incorporate herein by reference the allegations set forth in Defendants New Matter and counterclaim. 18. Denied. The allegations set forth in paragraph 18 constitute conclusions of law to which no response is required and same are therefore denied. It is further denied that Defendant's are so obligated for the reasons set forth herein in Defendants Answer, New Matter and counterclaim, which are incorporated herein. 3 . A 19. Denied. The allegations set forth in paragraph 19 constitute conclusions of law to which no response is required and same are therefore denied. It is further denied that Defendant's are so obligated for the reasons set forth herein in Defendants Answer, New Matter and Counterclaim, which are incorporated herein. 20. Admitted. RESPONSE TO PLAINTIFF'S COUNT I 21. Defendants incorporate herein by reference paragraphs 1 through 20 of this Answer as if set forth herein at length. 22. Denied. Defendants incorporate herein by reference the response to paragraph 14 hereof the same as if set forth at length. 23. Denied. It is specifically denJ.ed that Defendant was a "tenant at sufferance". Moreover, the Defendant, Corning, has vacated the property as aforesaid. 24. Admitted. WHEREFORE, Defendants, respectfully request your Honorable Court to dismiss Plaintiff's request for a judgment for possession since Oefendants have already vacated the leased premises and surrendered same to Plaintiff. RESPONSE TO PLAINTIFF'S COUNT II 25. Def~ndants incorporate herein by reference paragraphs 1 through 24 of the foregoing Answer as if set forth herein at length. 26. Oenied. On the contrary Defendant, Corning, has paid 4 . A . excessive rent during this period for reasons as are hereinafter set forth in Defendants' New Matter and Counterclaim. 27. Denied. The allegations set forth in paragraph 27 (a through e inclusive) are denied for reasons set forth hereinafter in Defendants' New Matter and Counterclaim which are incorporated herein. WHEREFORE, Defendants respectfully request your Honorable Court to dismiss said Complaint and enter judgment accor.dingly in favor of all Defendants plus its attorneys fees and costs of these proceedings. NEW MATTER 28. Answering Defendants incorporate the averments of paragraphs 1 through 27 and 39 through 66 hereof as if same were set forth herain at length. 29. Plaintiff's claims for excessive rent and money damages are barred by the principals of Accord and satisfaction. 30. Plaintiffs claim both as to possession and as to excessive rent are barred because of Plaintiff's express consent to Defendants' occupancy of the leased premises after the original lease term was due to expire. 31. Plaintiff's claims for excessive rent and money damages are barred by the statute of Frauds. 32. Plaintiff's claims for excessive rent and money damages are barred by the doctrines of Equitable and Promissory Estoppel. 5 . A . 33. Plaintiff's excessive rent and money damages claims are barred for Failure of Consideration. 34. Plaintiff's excessive rent and money damages claims are barred for the rea.on of fraud and/or unilateral mistake. 35. Plaintiff's excessive rent and money damages claims are barred for Illegality (i.e. violation of 42 U.S.C. 1395 nn requiring rental rates to be consistent with "fair market value"). 36. Plaintiff's excessive rent and money damages claims are barred for equitable doctrine of Laches and Unclean Hands. 37. To the extent that any of Plaintiffs claim for excessive rent and money damages are deemed to be claims to which contributory negligence applies, Plaintiffs' recovery, if any, should be reduced or eliminated in accordance with such doctrine. 38. Defendants are entitled to Ret off for sums due and owing as set forth hereinafter in Defendants' Counterclaim, paragraphs 39 through 66, which are incorporated herein by reference. WHEREFORE, Defendants hereby request this Honorable Court to dismiss Plaintiff's Complaint and enter Judgment in favor of the Defendants plus its attorneys' fees and costs of these proceedings. COUNTERCLAIM COUNT I ACTION FOR DAMAGES 39. Plaintiff on the Counterclaim is Corning Clinical 6 . . . Laboratories, Inc. (as successor in interest to the prior tenant Defendants under the lease, i.e. Metpath, Inc. and MDS, Inc.) having a business address at 900 Business Center Drive, Horsham, PA 19044. 40. Defendant on the Counterclaim is LeMoyne square Plaza Prope:rties (herein "LeMoyne"), having a business address at 4 LeMoyne Drive, LeMoyne, PA 17043. 41. On or about May 24, 1995, Martin Investment Group ("Martin"), Agent for Corning, contacted LeMoyne's agent/broker by fax regarding the renewal of subject Lease dated August 6, 1990, a true and correct copy of which is attached as Exhibit A to Plaintiff's Complaint and in an effort to determine what the terms and conditions would be with respect thereto, including Corning'S request for a reduction in the size of the leased premises. A true and correct copy of the May 24, 1995 fax of Martin is attached hereto marked as Exhibit A and incorporated herein. 42. Approximately six '6\ weeks later on July 5, 1995, Plaintiff's Agent, Arthur campbell ("Campbell") agreed on behalf of LeMoyne by letter that a reduction in space and in the rental rate would be acceptable assuming some other details were reconciled, i.e. parking spaces, nature of renovations, if any, metering of utilities, and further indicated to Corning that "they are a desirable tenant that Landlord hopes will remain in the building for a long time". A true and correct copy of 7 . . Campbell's correspondence dated July 5, 1995 is attached hereto marked as Exhibit B and incorporated herein. 43. One week later on July 12, 1995, Martin responded to campbell in writing that (a) it, Martin, is authorized to represent corning and included evidence thereof (which evidence Campbell could have requested when discussions regarding a renewal were initiated in May), (b) basically all items in Campbell's earlier letter were acceptable to Corning including that certain minor renovations needed to be done in consideration with the down sizing of the premises and (c) that the rental rate would have to be brought into conformity with the "stark Law" which is the federal statute referred to above in New Matter, which law mandates fair market rentals in all leases with physician landlords, the principal of LeMoyne being a physician. A true and correct copy of Martin's reply and correspondence dated July 12, 1995 is attached hereto marked as Exhibit C and incorporated herein. 44. Approximately two (2\ months later on september 7, 1995 (and atter the initial lease term was due to expire) Campbell forwarded Martin a copy of the proposed lease provisions for a three (3) year term, without any reduction in space (which was not what the parties had agreed to) and at a rental rate that was more than 20\ over fair market. A true and correct copy of the proposal to lease is attached hereto marked as Exhibit 0 and incorporated herein. 45. Promptly after receiving said proposal Martin contacted 8 Campbell and advised him that (a) corning did not need the 5,228 square feet of space and that based on LeMoyne's prior assurance, Corning expected that the lease would only be for 3,600 square f.et and (b) that the rent was not close to fair market as required by Stark Law (which rental rate Corning had confirmed by a real estate appraiser and so advised Campbell). 46. At the end of this discussion Campbell advised Martin that he would review with LeMoyne the two (2) issues, i.e. size and rental rate, and that the Campbell, would get back to Martin promptly after checking his own sources as to the question of fair market rental. 47. During the month of Septembar, October and November, Corning received no communication from Campbell and/or LeMoyne notwithstandinq various phone calls from Martin on behalf of Corning'S representatives who are responsible for the operation of its laboratory facilities. 48. Not understanding why it was taking seven (7) months to negotiate a lease extension, Corning in an attempt to get LeMoyne's attention delayed payment on the December 1995 rent check which achieved the desired result in that Campbell finally called Martin and in effect advised him that the Landlord, LeMoyne, really doesn't have to do anything because he will make more money enforcing the holdover provisions of the Lease (which would yield a rental in the range of $41.00 per square foot) as opposed to the $13.39 per square foot that LeMoyne offered in September. 9 . 49. At this juncture and after receipt of a letter dated December 20, 199~ from LeMoyne'8 counsel, a true and correct copy of which is attached hereto marked as Exhibit E and incorporated herein, Corning was suddenly made aware of the deception on the part of LeMoyne and its Agent, Campbell, and engaged its own legal counsel to submit an offer in an effort to "consummate lease negotiations" as suggested by LeMoyne's counsel in the aforesaid letter. 50. Corning's counsel submitted a written offer by letter d~ted December 28, 1995, a true and correct copy of which is attached hereto marked as Exhibit F and incorporated herein, to LeMoyne's counsel outlining the terms upon which the Lease was to be extended, which offer basically incorporated the earlier writings between the parties, except that the rental rate was at $12.00 per square foot, being somewhat above fair market for an "as is" deal as opposed to LeMoyne's earlier offer of $13.39 square foot, which would equate a market rate if Landlord performed significant refurbishment work in the leased premises, which Corning did not however request. 51. LeMoyne's counsel submitted a counter offer by letter dated December 29, 1995, a true and correct copy of which is attached hereto marked as Exhibit G and incorporated herein, to Corning'S counsel which included alternative proposals and for the first time since the expiration of the original Lease term added a requirement that Corning would have to pay the "holdover rent" of approximately $41.00 per square foot for the period 10 occupied by Corning from August 31, 1995 through February 28, 1996 (if corning was to occupy the 3,600 square feet as requested in July 1995) or from August 31, 1995 through January 15, 1996 if Corning would continue to occupy the original 5,228 square feet, which CQrning expressed on various occasions that they did not need. 52. The counter proposals from LeMoyne were submitted to corning for its review at which time corning began or had begun paying rent at the rate of $3,600.00, which was based on the then fair market rental of the premises. 53. Upon receipt of the aforesaid $3,600.00 rent payment, LeMoyne's counsftl demanded the holdover rent of $41.00 per square foot and in response thereto corning increased the monthly rent to $8,819.56 ($20.24 per square foot - the monthly rent during the last year of the Term) "in a spirit of good faith" while the counter proposals were being evaluated. 54. Notwithstanding the fact that Corning as tenant was paying a rent in excess of (a) the market rate and (b) what the parties had agreed to in their earlier discussions and writings, i.e. from July through September, 1995, LeMoyne began to insist that Corning was a holdover tenant and even if an agreement or an extension was established, would still be liable for the holdover rent of $40.50 per square foot. 55. Not realizing that the LeMoyne had been misrepresenting, defrauding and deceiving corning in not declaring its real intentions during the ongoing negotiations for a lease extension 11 that continued through the many months preceding and following the expiration date of the lease term, corning had been laboring under the reasonable assumption that LeMoyne intended to enter into a new lease and/or extend the term as the parties had agreed in their earlier writings. 56. As a result of LeMoyna's actions, Corning had foregone the opportunity of seeking new quarters within which to relocate the business operations they had been conducting at the leased premises. 57. Confronted with the abrupt change in LeMoyne's position regarding the extension terms, Corning had no alternative but to vacate the leased premises and notice of its intention to do so was provided to LeMoyne's counsel on March 13, 1996. 58. curing the period, from September 1995 through March 31, 1996 under duress from LeMoyne, corning was required to pay $8,819.56 per month rent, a rate being $8.75 per square foot above fair market rental value, and only did so as an act of good faith and because LeMoyne as Landlord was demanding $17,639.12 per month ($41.50 per square foot). 59. corning subsequently secured a lease for 4,050 square feet of comparable space at another location in the vicinity for a term of three (3) years at an average rental rate of $10.15, which lease was made by corning at "arms length" and reflects a fair market rental rate. 60. Had LeMoyne as landlord indicated in May 1995, when Corning first inquired as to the renewal terms, that the renewal 12 rents would be considerably above fair market and that corning must lease all of the 5,228 square feet, LeMoyn~'s proposaL would have b_en rejected and Corning would have vacated the leased premises upon the expiration of the lease term and sought the lease of an alternate location to conduct its operations. 61. Because of LeMoyne's deception coupled with corning'. reasonable reliance on the written representations of LeMoyne and/or its Agent, Campbell, Corning suffered damages in the amount of $37,757.83, being the difference between the amount of rent that corning would have paid (and is now paying) at its new location and the amount of rent that it paid under duress to LeMoyne for the leased premises from September 1, 1995 through March 31, 1996. WHEREFORE, corning respectfully requests your Honorable Court to enter judgment in favor of Plaintiff on the Counterclaim, Corning Clinical Laboratories, Inc. (representing all Oofendants) and against LeMoyne Square Plaza Properties in the amount of $37,757.83 plUS interest from April 1, 1996, reasonable attorneys fees and costs of these proceedings. COUNT II ACTION FOR ACCOUNTING 62. Corning, as Plaintiff on this Counterclaim against LeMoyne, as Defendant, incorporates by reference the preceding paragraphs 1 through 61 as if set forth herein more fully, this Counterclaim being asserted in addition to counterclaim Count I. 63. From time to time during the original term of the lease 13 Corning, or the other predecessor in interest Defendants, were required to and did pay additional rent pursuant to Article V of said Lease. 64. Upon information and belief Corning was charged excessive amounts for the expenses for which it had agreed to reimburse LeMoyne, i.e. for its pro rata share of all expensee in excess of $3.50 per square foot per year. 65. The billable pro rata expenses to Corning and predecessor in interest Defendants, were not to include repairs to the structure and/or the roof, although the latter was in a continuous state of disrepair causing water leaks in the leased premises after rain or snow storms, nor were such expenses to include janitorial service or window cleaning, as such were tenant Obligations. 66. The additional rent billed to and paid by Tenant (i.e. in addition to the $21.25 per square foot base rent) for fiscal year 1994-1995, as well as prior lease years commencing September 1, 1990, were excessively high by comparable office building standards for buildings similar to that where the lsased premise. were situated. 67. To the best information and belief of Corning, the amount of overbillings by LeMoyne were in excess of $5,000.00. WHEREFORE, the Plaintiff on the Counterclaim, Corning Clinical Laboratories, Inc., hereby requests that your Honorable Court Order the Defendant on the Counterclaim, LeMoyne Square Plaza Properties, to render a full and complete accounting of all 14 . X B :I B I or "A" M.W:1N INV1lSDIZN'fGRoU1', 1NC. 1uIy 12, 1995 To: AttIwr Campbel1 From: Paul Gilbert Ill: Coramc-Metpath Lease at Lanoya. Squar. Dear Art: In retpOllIM to your letter 6/29/95 and ilClllJ #1.2 and A-D, 10 be addressed: 1) Ma. Sc:berrIe NunamBket hu sent you a letter (copy attaehed) confirming our representation of Coming Clinical Laboratoriea. 2) Yes, Coming deaira to negotiate a new tease for 3,600 square Ret at Lemoyne Square. Comins's sisnins ot II1IlW lease will void all lcrma, conditions, and renewal OptiODl of the orislna11caae. A) Coming agrees to consider direct payment of an electric charges relating to space it occupies. B) Comins will require the following renovations in its new spaco: I) Dcmillipg wall (wumcd by landlord). ii) Two (2) new doorways within new space (aa51Irned by landlord). lii) Rel00ation ofte\ephone and computer lines. (assumed by CorninS) C) ComiII8 wiD consider WlI}'S to Rduce or otherwise alter Its parking requirement as part of ita new tease qreemenl . " . D) Comins wiD look fur a reduction in Its current rent (pst) in accordance with provisions of the Starlc Law mandating fair market rentS in contracts, with physician-landlords. M items kC wiD require fiIrtber di.v>.ulon, ptoaae contact Cheryl Eisenhardt of Coming (800-543- 4419) directly to discuss spcci!o requirements. Please continue to contact me regarding all financial e\eawnta of the new lease proposal Sincerely, ~ .. Paul OUbert PQIJla (VIAFAX) cc:: CbayI ";-~orclJ, SchIrrio N'm.~.~.... ComIns C1inlcal Labonlory P.O. Box 191 . I'l.JIIoum Mu:nNO. PA 194dJ . (610) 8n-1188 . FAX: (ISlO) Bn-:l944 -' ~"--..lw LEASE AGREEMENT 1. Parties. THIS AGREEMENT. made the 31st day of July. one thouslllld nillo hundred iAnd ninety-five (1995), by and bc\ween Lemoyne Square Plaa Propettles, a PcnIIsylvwa Qene1"-1 Partnership, (hcTcinatler called LnsoI). of the one part. and CPF Melpath. (llerelna!ler called Lessee), of the other part. 2. Proll'l1scs. wrrNESSETIi THAT: Leuor docs hereby demise &lid leI unlo t..easee all thar ecrlain lPEroximlltoly 5).77 sq. f'l, of office .pace locall:d on tbc flnt floor of One Lomoyne Squanl Plaza, Lemoyne PAin the County of Cumberland. COlMlOuwealth 01 PennsylvenJa, (Hoe li!wched floor plan) 10 be \Ised and occupied as OffIce and for no other putpOtle. 3. Term. For the tenn oflhrce (3) years bealnning October I, 1995 and elldini the 30th day of September. 1998. ... Minimum Renl. For the minimum annual rental of Forty-seven Thousand two hundred eighty dolLats ($47,280.00), lawflll money of the UnilCd Stales of America. paynbJe iu monlhiy installmenra in advance during tbc sald term of this lease, or any renewal hereof, on the 1st day of clLCh month, relit 10 beam from tho 1st day of October, 1995 (tile commencement date) the fltSt installmcnlto be paid lit the time of slgnlrtglhis ~~. . R8Tltal rOT the years of tIlo lease shall be as follows: October 1,1995. Scptembllr30, 1996 . S6B.60I.OOycarly ($5,716.75 pcr!mo.) I,} Oc:lObor I, 1996 - SeplCmber 30, 1997 - $70.~6.00 yearly (5S,BBB.OO per/mo.) I S..S 9 Octobor I, 1997 - September 30, 199B - $72,7Bo.oO yearly ($6,06'-00 pet/mo.) / '7 .~ IJ 5. Occupancy. Cwmltly OCC\lplcs the premises and accepts the premises in on"AJ Is" condition. 6. Services. Lessor will provide lInd pay for trD.\h removal from a common coUcc;t1on point, common area 1'/\8ialellllllCe, saow remcJVlli, real estate taJ\1l8 and insurance. and I'Ipair and malntel1llllcc. Les.'IeO, In addition to the yearly rentallisllild above shall pay to LesliOr inCTllaSDllIn wcs and ill4UTllllce over the base year (October I, 1995 - SoplCmber 30. \996). Incruses paid by Lessee shall be invoiced yearly a1'ler the 5<<ond rull year of occuPlUlCY and LeIISeO JnaJlonly be respoasiblc (or a ~ra:n13illl/1ar equal~ their percenrap occupancy of the Cllure buildinl$ 20.007 ~q\We fool. 3 oJ?"oJ -' I 2.. I v 1)1 2,.;'U .. '" ., Oeneral building. lobby IIId grounds lighting shall be the n:~pon~ibility of the I.A5Sor. I..ea8M ~heJI be re~pon.lble fot pllymelWl of utilitieS Including elec:utc: for heatinJ and air-conditlonlng (HV AC) which will be separarely metUCd, as well u all WIIIU sower. and gas to tbe IClIlIcd pmnlses. 7. Placo of Payment. All "mlS ~hall be payable without prior noUcI! or demanc11t the ofRce of LeiSer: cia Wornen's Medical Center, OnelAmDyne Square Plaza,1..cmoync, PA 17043 or It such other place lIS Lessor may from tlmeto rime dll8ignWl by norice in wririna. Notices to Lessee shall be ~entlo Keystone Medical Systems, Inc., 3 Lcmoyne Drive, Suite 100, Lemoyne, P A 17043, or to my otbcr addl't.~s thlll LellSM shall 50 dulgnate in writing to Lessor. 8. Affirmative Covcnanta of Lessee. I) Lessee covoOlD15l101i agrees thai Lessee will without detnand, S~~ the renl and all other charges bareln re.wved u rent within (7) Sll'llln days of the clue and at the place thlt the same are madr. payable, without Cail, Md if Lessor shall at any time at t1mu accept sald rent or rani eharges after lbc same shall have become due and paynble. such acceplllllCO shall not CJl.c~ delay upon subsequcnt oce.lons, or constitute or be conslnled u . waivcr of any of Lessor', ",hIS. Rental p&ld after the 7 day gI1lCIl period shall have a penalty offlve pelCCnt (5'l&) 0 monthly mi. b) RequirementS of Public Authorities. Comply with any m)uiremen~ of any of the conAtlroted publ~ autboritics,lIllCI with the tel1N i:4 any Commollwealth or Fcderalscatllll: or local ordinance or relUlatlon applicable to Lessee or Lessee's u.so of the demised I'rtmiaes, and save Lessor harmle.~ from penalties, fines. coats or damap~ rcauJdD, from failure to do so. c) Pin. Use every roaaonahle precaution against fire. d) Rules and Regulations. Comply with Nles and regulations of Lesaot prorou\pt.ed as hereinafter provided. .) Surrender of Possession. Poac:eably delivll'/' up and surRlldll'/' possession of the demised premise.~ to the Lessor at the opmoo or sooner termination of this 111l11l. promptly clcllvcring to Luaor at Leuo!"s office IllI key. for the tl"m;iled pmnIses. t") Agency 00 Removal. The Lessee agrees that If, with the wrilltn pennisaion of Les&or,l..e$aee shall vacate or decide at any time during the term of this lease. or any renewal thereof. to vacate the herein demised premises prior to the expiration of Ibis lea5e, or any mewal hereof, Lessco will not cause or allow any other lI~:IIO ceprcaent Lessee 10 any sub-Iettini or re-Ieuini of the demised premises other III qcN approvcc1 by me Lessor t..cmoyne Square Plaza Properties, such llClPtoval not to be UDRa50nably withheld. Should Lessee do so or anempt to do so, the Lessor Lemoyue Square Piau PTopertie~ may l1l1IIOve any a1grlS that may be placed on or about the dcmUcd premises by such other agent without any liability 10 Lessor or 10 said &aent. me 1..cUflC assuming all responsibility for such acllon. .... .' ;' 8) P-oII'ltlna. The panics agree mat the parkin I lot shall be for the ~ole use of customers. clienlli. employees and gue!lJ of tenanlS in One Lemoyne SqulIle Plaza. Nothlna In Ihe parasraph shall be construed 10 require Lessor 10 monitor or enforce the use of such spaces. 9. Neglltive Covenanta oC Lessee. Lessee COveQlDlS and aiJ'COs chat Lesseo will do nOM of the followlnglllings wlthoul the consent in writing or Lcsaor first had and obla.ined: (a) Use of Pl'Dmises. Occupy the demised plflmiscs in any olller mannar or for any other purpose Ihan an office. (b) Si8n~. Place or allow 10 be placed any stand. boolb, sign or show cllSe upon the doorsteps, vClltibulell or outSide walls or pavemenu or said pl'Dinises, or paint, place. erecl or cause 10 be painted, placed or meted any sian. projection or devise on or li1 any part of the: premises. Leallle shall relI10ve any sian. projection or device painled, pl~ or erected. it pmnission has nol been I1'lDted and reltDnI the walls, ctc., 10 them former c:ondic1ons. al or prior co !he expitalion of this lease. In case of thillmat:h ot this covelWlt [m addition 10 all other remedies slven to Leuor in Cll5C of blUCh of any condilions or c:ovcmants of this feMe) Lessor shall have tho privilege of removing said stand, booth, IlifI Hhowcase, projection or devico, and nlslorln, said walls, ole" co cheir former c:ondition, and Lessee. at lAssor's option, shall be liable 10 Lessor for any and all expenses so incurred by LelIsor. Lessor will provide Lessee II sign frame for Lessee's use of a ~iZll and design that coincides v.;th thOIle currently 011 the building. (0) Alterations, Improvements. Make ony alterations. ImprovemenL1, or additions to the demised premlsCll, all a1tefl1J;tons, improvemenlS. ad4ltions or fixtures. whether Installed before or after the execution of the lwe, shall remain upon che premises at the expiration or sooner delemllnatlon of !his lease and become lhB properl1' of Lessor, unless Lessor shall, prior to the determination of Ibis lealO, have given writlml notice to L~,see co remove the same, in whicb event Lcsaee will remove such alterations, improvements additions lI1Id re~tore tho premises 10 the same aood order and condition in which they now are. Shoulcl Lessee fail to do 50, Lessor may do so, collecting, at Lessor's option. the cost nnd ClIptm:lC thereof from I ......... as additional rent (d) Ma.:hinery. Use or opcnte any machinery or equipment other than office, lab, computer and communications equipment thac, In Lessor's opinion. is harmful to che build.lng or distllrblng 10 other cenanlS occupying other pll.tts thereof. I O. L~r' s Rights. Lessee covenants and agrees that Le.!l5or shall haV$ the right 10 do the folll>wlni lIlings ancl roattern in llIId about tho demised. premis*S: <a) Inspection of Premises. With reasonable advance notice IIId at all reasonable times by Lwor or Lessor's duly authorized agenllto lJo upon and Inspect the demised premises and every ~ !hereof, and/or at Lessor's option co make repairs, alterations aud additions 10 lIle dol premises or the building of which the demised "nlmises Is a part. ... '1 .5ueh repalts, a1lCratio~ 0; additions shall be m.'\de so as to not dlslUrb tho ongoing use of the prcm.i.sc~ by Lessee during normDl ~iness hours. . (b) Rule~ lInd ReguJlltiolll. At any time or times and from time to time such rules and regulations ~ In Lesaor'R reasonable judgment ml.Y from limo to time be necessary for the lafCty, care and cleanliness of the premises, and for the prllservatlon of good order therein. Such rule. and regulations sball. when notice thereof is given to Lessee, fonn a pan of this lease. (c) Sale or Renl Sign. To display a "For Sale" lign al any time. and a1so,lIfter notice from either party of Intention to terminale this lease, or 1IlllJlY lime wilhln three monlhs prior 10 the expiration of thille3Se, a "For Rent" slill, or both "POt Rent" and "Por Sale" signsj and eU of said signs be placed upon such pll1t ot the premises as Lessor may elcct and may contllin such maner as Lessor shall require. Prospective purchasers or lllnants authoriled by Lessor may inspect the premises at reasonable hOlll'5 at any ame. (d) Discontinue Facilities and Service. The Lessor may diseon1inue all facilities furnished and services rendered, or uny of thll111, by Lessor. not expressly covenanted for herein. It being understood that they constitute no part of the consideration for this lcu<!l. II. Responsibility of Lessor. (a) Total Deltruclion of Premi:scs. In the event that tho delJlised premises is tola1ly destroyed or 110 dllmaied by l'Ite or other casualty not Qccurring throl18n sole faille or gJ'OSlI nogligence of the Lessee or thOSll employed by or agtlng (or Lessee, that the samo cannot be repaired or restored withID a reasonable time, this lease shall absolutely CCIlSC and terminara, and the rent shall abl\lD for the balance of thc tem'l. (b) PlIl1iliJ DeStnlCtion of Premises. Ifthc damllge caused as above be only partial and such that the premiJcs CIIIJ be restored to their th<!ln condition within a rea50nable time, the Lessor mllY, at lcAAor'. option. restore the samo with ICllSOnable promptnesS. rc&crvlng !bc "She to enter upon the demlsed premises for that pwpose. The Lessor also l'UCtve8 the riJht to enter upon the demised ptemises whenever necessary to repair damage caused by lite or other casualty to the builcIliJg of which the demised premises IS 11 part, C'/CD though the effect or such entry be to render lhe demised omnlses or II part thereof untenantable. In either event lhe rent shall be apportioned and suapended during the time the Lessor is in possession, taJclna Into account the proportlon of the demiJed premises rendered untenantable and the cWrarion or the Lessor's possession. (c) Repai~ by t.e.,'IAOl'. Lessor shllll make such clection to repair tho premises or tennlnate this lease by giving notice thereof to Lessee at tho leased premises within um daya from the day Lenor received notice that the demised premises had been destroyed or damqcd by rue or other casualty. Cd) Da.ma&e tor Interruption of Use. Lessor Rhallnol be liable for any damage, compensation or claim by reason of Incon\'cnillllce or annoyanc:a arislnS CIom the neccsaity of re~airinl any portion Of the building, the interruption in tho use of the premiscs, or the lerrnlllatlon of this lwe by reason of the dcstrUctlon of the premises. (e) Re'p~SC1llation of Condition of Premises. The Lessot hllS let the demised premises "~b". , . .. "1 (I) Zoninli. Oilier lIIan for office usa whIch is already an approved use for tho prembes, It is understood and aareed thal the Lessor hClCOi does not wammt or undertake thaI the Lcasce shal.l be able to obtain II permit under any Zoning OI'dinance or ~aWation for sucb use.., Lessee intends 10 make of the said premises. lLlUIllolh.ing in thls lcase contained shall obligate the Lessor 10 wist Lessee In obtainin. said permits; the Lessee furI!Icr agrees lhal mthe event I permit talIlIot be obtained by Lessee under any Zonins Ordlnan<:tl or Regulation, till. lease shall notlCrminate without Le.,sor's consent. and the LeSSCll shall use the premises only' in a l\'Wlnet' pennllted under such Zoning Ordinance or R..SUlatioo, exccpc iD meetlnl bulldout requirements. 12. Rccponsibility of Lessee. (.) trSllcc asxccs to relicvo the Lessor from all liability by reasoD of IUIY Injury or damaF to any person or property In the demised premises, whethef belonlin, to ilia Lessee or any other penon, Caused by any fire breakail Of leakage in any part or portion of tbe demlslld premises, or illY part or portion of the builcllnl of which the demised premises is a part. or from water, nln or snow that may leak inlo, is.'I1le or flow from any pan of the laid premises. or oC the bulldinl of which the demised premises I. a part, or from tbc drains, pipes, or plumbing work of the same. or from any place or quarter. (b) Lessee also lips to relieve the lesSOf from all liability by reasoD of any damale or injury to any persoD or thlng which nlIlY arise from Of be dUll to the use, misuse or abllSe of all or I\l'IY of the elevatorS, hatches. openings, s&alrways, hallways, of an~ kind whatsoever, wblcll may ll~i.t or hereafter be =ted or c:OllStrUCted on the said prelJUSClS. or from any kind of Injury whicb may arise from any other cause wl\8UOllvcr on the said premises or the building 01 whicl1 the demised premises Is part. 13. Miscellaneous AgreelllCDts and Conditions. (a) Effect of Repairs on RontaI. No eontract c=nll:mllnto or tbat DUty be subpquently entered Into by Lessor with Lessee tcgardinllhis Lease A&n:eJ'lIenl, relative to any alteration, additions II requ~d by any sucb contract, nor the mllklng by Lessor or Lc:SSor'A agenL' or contractorS of such allltat!ons, llddilioll5, improVcmllnts or repairs shall in any way affecl the payment of the rent Of said other charges at the tllJl8l1pecirlOd In this lease, except those improvements previoU$ly qreod upon to iClpArate the space !IS sketched. (b) Agency. It is hereby expressly 81reed and underStOod that tbe said CauwbeU- Batris Commercial Realty, Inc. Is acring as agent only and shall nOI in any event be h!lid . liable to the owner Of to Lessee for tile fu1fU\mcnt or non-fu1.filhncnt of any of the terms or conditions of this lease, or for 8n1 action or proceedings mat may be wan by lhll OWOIl' qainst LcsIOO, or by Lessee agamst the owner. 14. Remcc1le.s of Lessor. If the Lessee --- _0___ .., TlI . I -.- -.-. ......... ......., -...- ......"'-...c~ It 'J ",,",'t. ...... -..-.. . JII.., .....~ -.- ...... -.c"" 'It.. ....... ~ 14 _......,. :En ~~l ~.\U1.." ....., \Ct...... c...... '" __hll( ........,... -u. A '-II...-y" ...,..,... ....... ....... ~.. ....., ...c. ...........-...... .... .."" c.......... -'''-_ro ....,.,. "C'i -.,- .........."..., I MeNue, WA..l.Aca:, NUII'CK ..."OANe.... "'T LAW .... "". ''''ee' - . .0. ".. """.'''''.0. ,,, "OO.."tI 'II.'-,""'u,-tooo q ......""ur... . .....,. ...., . ....... ~I\.. ......0,....... ~ ....' '.... _4.0_ .....,...-..... .............. .......,""". "'M'. ""1 ...... .... _\Ce._ -"....... ""-..- --..- -,,,- ..........- ........., ..... ......-...11.... ....,. ...,ft...... If'C\IQlI .......,... ...,....., -'_e ......c, III ..,.. ...,...... .......". - ..""....,11I, ....,....... .... ""'8t......".. ~I ...', ..0., .....".. .......... ............., ...'....UfI...~' -'_10 - Deotmber 20, lP'5 ~aMOYN. 'QUARS ~L~'A PROP.RTlta O~C rile: 07~6'~OOOI Mr. O'Vid lawe, C'ne~tl Hanafer Hetpal:l'I, he. '00 aUttn... Ctnter Urive Ho~eh.~,'A "044 O_:r It.. lews: Thi. r1,. r'pre..nt. the Owner of 4 ~.moyn. O~1v., Lemoyne, .enn'Ylv'~1a, OOQUpj~ In pl~t b~ four affiliate, HOB Hellth Croup, llW. (fiNDS"), un4er ~h4t leUe agreement dated Auguot " "'0. ~h. 'C.ted t.rm of the 1.... .xpi~.d on AU9u.t 31, 1995. AlthoU9h the,. hive b..n Ontoinf Communioationa butw..n thQ o~n.r'a .,ent, Arthur D. Clmpbell of ClmpbollMUarrta CommerCiAl R..lty, Inc., In4 your IVlnt, a "I'. "ul ctlbert 01 HArttn rn~.at"nt Group, Ino., of Plymouth H,ettng, to date tho.e di'OU.8tona have not glnlrated a new 1,..., fAX: 2~~7 & c~~'n f'IEli'"ilAlt I!~RN RJllCEZP1' I!GQUtS'1'iR eommenC1n9 in '.pte~lr, HDS I'll. mid, . payment mOnthly, the Ill.,.c co. cent ot wIl1c:h "'I' rloeivael on or about Oeeelllbel' 1. '1'1'1. OeClmber payment w.. dlPol1tla, Ind thlr..ftor, OUt cltont we. Idv!..a that the taau1n9 bank r.fuled plymlnt dUI to . atop ordor .iven on Or .bowt Nov.mber ~Q, "'5, wAioh ~.sult. 1n o~v'r~l 01 our OlLent'. cheok. be!n9 dtlhono~e4 to~ 1n'uttloient tun4e, Although ou~ Client left a YOivemail day. .go with He. ZS..nhard a..king .n explan&tton, none h.s ~..n tendered. C1ven the lack of r.'ponee, we oln only ..Iume that thl stop order was an intentional aot, an4 ., such, 1n Our V1.w, conat1tutea an act Of bad fa! th. 1n .ny event, no Foyment haa b..n ""de. tOr th., mcnth . - MCNEES. W.AI.LACE & NUR1CI( A-rrO"NII:'/S AT IJiN 100 .,,.1 SfACC1' " 0. aoa II.. ~""''''..U''G. PA. 1710.-11.. ~QIIIII111'aJ..1OCO 'u 1711. a.31.S3OQ ". 1bc;&AJl1) W. S'IavSJlSOH D~ 1)uu (n:,) CUlJloooag. December 29, 1995 In reI WOMEN'S HEDr~ ASSOCIATES, P.C. Oeneral Corporate OUr File No. 07269~OOOl John J. Hagan. Ellquire Hor.ham BUBin.ee Center . 1155 Business Canter Drive Suite 150 Hor.ham, PA 19044 Dear Jack: Thank you ter your fax lOf haC; evening regarding the MOS He~lth GrlOup' leasehold interest in Lamcyne Square Proper~i... Fax and fir.t Class Mail (215) 951~U22 We have considered the propolla1 but de not tind it feasibl. fo~ a variety of reasons including the reality that: yeur client ha. occupied the entire apace trom September 1 includ~ng I appu~tenant parking, the economic reality that retrofitting coats ~. the term eclOnomically irrational frlOm the perspective of .the party inc::u.rring that expense, and that the r..:l.4ual area would I have no tenant parlcing. Parking:l.s a major item in tlU.. instaztce d:ac. your client bas apprlOx:!.mat:ely twice the epac;:es normally : allotted which :1.8 not condderad in the "appraisal' nor wculd : .uch adc1~tional spaces be availal:lle at: the locations descriDed.; I Within cur time frame, we will purlue tureher discussion. ! with your client cn either of the fo;lolo/1nsr arrangements: . (1) An extansion of the "eld" lease under its term. and ccnditions through Februa~ 28, 1996 at whic~ point the, : leasehold area would be reduced tc apprlOximately 3,600 square taet with parJdng provided at: the rate of on. llpacel per 200 square feet at: a baee rental at $13.00 & square foot \lith a term ranging frolll three to five Yila%'S. Under clUs : arrangement, the utilities and operating axpense. would be, hancUed in ac:ccZ'dance tdth your sul;lpuagrapl;1s (d) and ee).' This approach is subject tc the condition precedent chat . UJlDY1JJI .QU&U "USA .1O.lIaTIII., PlaiDtUf III TH. COUllT OJ' COJOCO. .LBAS CWlBIIIlUJID COUJITY, ..nSYLVUIA WOo "-15'3 CIVIL TllaN v. 1m8 IIIC., 1m. BIlALTH GIOO. LIXI'I'.>>, JdT.ATH, I.e., and COIlWIJlQ eLIJlICAL LABOaA'I'OllIII., I.e., l)efen4ut. ACTIOJl I. BJIIC'I'JdJIT Utl J'01l DAHAGII. JUIlY TRIAL DENANDIID eERTIJ'ICATI OJ' aIlRVIe. I, Stanley J. A. Laskowski, Esquire, do hereby certify that I have served Defendants' Answer to Complaint - New Matter and Counterclaim by placing a true and correct copy of same in the United States mail, first class, postage prepaid thereon, on the ith- day of May 1996 addressed to the following person(s): Carol A. Steinour, Esquire McNEES, WALLACE' NURICK 100 pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 KUNDRAT , SEDOR JLLtC.: ., Laskowski, Esq. Attorney t.D. #37422 1800 Linglestown Road Suite 304 Harrisburg, PA 17110 (717) 234-3911 required. If it is deemed that a response is required, Plaintiff denies that it has made a claim for excessive rent and further denies that its claim for rent and damages are barred for any reason, including those reasons set forth in paragraphs 31 through 37. 38. Denied. Plaintiff does not owe Defendants any money whatsoever, no sums are due and owing to Defendants and Defendants are not entitled to any offset whatsoever. WHEREFORE, Plaintiff Lemoyne Square Plaza Properties demands that this Court enter judgment in its favor and against Defendants MDS Health Group, Inc., MDS Health Group Limited, Metpath, Inc., and Corning Clinical Laboratories, Inc., for damages suffered, plus interest, attorneys' fees, and costs of suit, which sum is in excess of $25,000.00, and further demands that this Court dismiss Defendants' claim against it. ANSWER TO COUNTERCLAIM COUNT I 39. Denied. After reasonable investigation, Plaintiff is without knowledge or information sufficient to fornl a belief as to the truth of the averments of paragraph 39 and the same are therefore denied. 40. Admitted. - 2 - 41. Denied as stated. To the extent the averments attempt to characterize the document attached as Exhibit "A" to the Counterclaim, such averments are denied beca'lse the document speaks for itself. Furthermore, the document attached as Fxhibit "A" is not a complete copy of the document sent to Art Campbell on May 24, 1995. Plaintiff denies that Corning requested a reduction in size to 3600 square feet. Rather, the request for proposal ("RFP") attached to the May 24, 1995 letter refers to a lease of 800-1000 square feet, not 3600. By way of further answer, the parties had begun negotiating a new lease in 1994. 42. Denied as stated. To the extent the averments attempt to characterize the document attached as Exhibit "B" to the Counterclaim, such averments are denied because the document speaks for itself. Plaintiff denies that Campbell "agreed" that a reduction in space would be acceptable. On the contrary, in the July 5, 1995 letter, Campbell clearly states that Plaintiff is "basically agreeable" to the reduction in space provided that Defendants address certain issues in addition to the reduction in space. By way of further answer, nine months earlier, on September 12, 1994, Campbell informed Martin that Plaintiff would consider reducing the size of the rental space if it could be combined with another 5000 square feet available in the building. Martin never responded to Campbell's request for information. In - 3 - the July 5, 1995 letter, Campbell again requested that Defendants provide him with information regarding the reduction in space, which information he had requested on many occasions prior to July 5, 1995. 43. Denied as stated. To the extent the averments attempt to characterize the document attached as Exhibit "CO to the Counterclaim, such averments are denied because the document speaks for itself. Plaintiff denies that Martin agreed on behalf of Defendants that the items set forth in Campbell's letter were acceptable. To the contrary, Martin's July 5, 1995 letter was not responsive to Campbell's request for information. Martin failed to respond to Plaintiff's repeated requests to provide plaintiff with specific information regarding how the leased space was to be reduced. Martin also failed to respond to Campbell's requests to meet him at the premises to discuss the reduction in space. Plaintiff further denies that it was necessary to adjust the rental rate to conform to the Stark Law. 44. Admitted in part, denied in part. Plaintiff admits that Campbell sent Martin a proposed lease on September 7, 1995, after the lease term expired. Campbell forwarded this lease to Martin because Martin had ignored repeated requests to either meet Campbell at the premises to discuss the reduction in space or provide Campbell information on the reduction in space. By - 4 - way of further answer, plaintiff never. agreed to the reduction in space. Plaintiff denies that the rental rate was more than 20% over the fair market rate. To the contrary, the proposed rental was a fair market rental rate. 45. Denied. On the contrary, on September 28, 1995, Martin told Campbell that the lease was under legal review but that Defendants fully intended to stay on the premises. Martin also told Campbell that he expected that the lease would be approved by late September or early October. Martin only raised a concern about the fair market rental nine days after he informed Campbell that the lease would be approved, and refused to provide Campbell with a copy of the appraisal on which he relied. Plaintiff denies that the alleged appraisal was accurate and further denies that the proposed rental rate was above the fair market rental rate. Plaintiff further denies that it assured Defendants that it would lease Defendants 3600 square feet. 46. Denied as stated. plaintiff admits that Campbell agreed to review the issues regarding reduction in space and the rental rate and would respond to Martin after conducting his own research. Campbell requested that Martin provide him with a copy of the appraisal on which Defendants relied, but Martin refused to do so. - 5 - 47. Denied. On the contrary, Campbell attempted to get in contact with Nartin and/or another representative of Defendants to discuss the proposed lease which was provided to Martin in September. Plaintiff denies that Martin or any other representative of Defendants made any attempts to get in contact with Plaintiff or Campbell during the months of September, October or November of 1995. 48. Admitted in part, denied in part. Plaintiff admits that Defendants delayed payment on its December 1995 rent. plaintiff denies that the parties were negotiating a lease extension. On the contrary, the parties were negotiating a new lease. Plaintiff denies that Campbell stated that Plaintiff "really [didn't] have to do anything because he will make more money enforcing the holdover provision." By way of further answer, Defendants failed to respond to the proposed lease provided to them in September 1995 and are responsible for any damages caused to Plaintiff by holding over. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the remaining averments of paragraph 48 and the same are therefore denied. 49. Denied. Neither Plaintiff nor Campbell was deceptive in any manner whatsoever. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form - 6 - a belief as to the truth of the remaining averments of paragraph 49 and the same are therefore denied. 50. Denied as stated. To the extent the averments attempt to characterize the document attached as Exhibit "F" to the Counterclaim, such averments are denied because the document speaks for itself. By way of further answer, $12.00 per square foot is not above fair market value. Plaintiff denies that Defendants did not request refurbishment work on the leased premises. On the contrary, Defendants requested that Plaintiff perform refurbishing work so that they could reduce the rental space to 3600 square feet but failed to provide Plaintiff with specific information regarding the reduced space. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the remaining averments of paragraph 50 and the same are therefore denied. 51. Denied as stated. To the extent the averments attempt to characterize the document attached as Exhibit "G" to the Counterclaim, such averments are denied because the document speaks for itself. By way of further answer, Defendants have misstated the terms of the December 29, 1995 letter. Plaintiff denies that the December 29, 1995 letter "added" a requirement that Defendants pay holdover rent. to the contrary, pursuant to - 7 - the terms of the lease, Defendants were obligated to pay liquidated damages in an amount double the rental rate established in the last year of the lease term. Plaintiff denies that this amount constitutes "holdover rent." On the contrary, this payment constitutes liquidated damages. Defendants knew about this provision since at least August 1990, when the lease was signed. By way of further answer, Defendants continued to occupy the entire 5,228 square feet of rental space. Plaintiff denies that Defendants "expressed on various occasions that they did not need this rental space." On the contrary, Defendants failed to provide Plaintiff with specific information regarding reduction in space, despite repeated requests that they do so. 52. Admitted in part, denied in part. Plaintiff admits that Defendant began paying rent at the rate of $3,600.00. Plaintiff denies that this rent was based on fair market value and further denies that this amount represented the full amount due and owing. On the contrary, Defendants were obligated to pay the sum of $l7.639.12 for each month after the expiration of the lease, which amount constitutes liquidated damages. 53. l.dmitted in part, denied in part. Plaintiff admits that its counsel demanded the payment rent of $17,639.12 per month as liquidated damages for Defendants' failure to vacate the premises. Plaintiff further admits that Defendants increased the - 8 - monthly rental payments to $8,819.56, the amount they were obligated to pay during the last year of the lease period. Plaintiff denies that this amount constitutes "holdover rent", denies that it demanded the payment of holdover rent, and further denies that any of Defendants' actions were made in good faith. 54. Admitted in part, denied in part. Plaintiff admits that it considered Defendants to be a holdover tenant and required payment of liquidated damages, as set forth in paragraph 19.1 of the lease. Plaintiff denies that these payments constituted rental payments and further denies that these payments are in excess of market rate. Plaintiff further denies that the parties had agreed to any rental amount in their earlier discussions. On the contrary, Defendants failed to respond to the proposed lease provided to them in September 1995. 55. Denied. Plaintiff did not misrepresent, defraud or deceive Defendants in any manner whatsoever. Plaintiff and Defendants were not negotiating a lease extension. On the contrary, the parties were negotiating a new lease. Plaintiff and Defendants never reached any agreement on the terms of a new lease because Defendants failed to provide Plaintiff with the necessary information regarding a reduction in size of the leased premises. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the - 9 - truth of the remaining averments of paragraph 55 and the same are therefore denied. 56. Denied. Plaintiff did not prevent Defendants from investigating other available premises and is not liable for any alleged damages, which are otherwise denied. After reasonable investigation, ?laintiff is without knowledge or information sufficient to form a belief as to the truth of the remaining averments of paragraph 56 and the same are therefore denied. 57. Admitted in part, denied in part. Plaintiff admits that Defendants' counsel informed Plaintiff's counsel of Defendants' intent to vacate the premises. Plaintiff denies that the parties discussed a lease extension. On the contrary, the parties discussed a new lease. Plaintiff further denies that it "abruptly changed" its position regarding a new lease. On the contrary, Plaintiff maintained a consistent position regarding the terms of a new lease and it was Defendants who changed positions abruptly. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the remaining averments of paragraph 56 and the same are therefore denied. 58. Denied. Defendants were not under any duress to pay the liquidated damages during the pp.riod from September 1995 through March 31, 1996. To the contrary, pursuant to the terms - 10 - of the lease, Defendants were reauired to pay $17,639.l2 per month after expiration of the lease. This amount constitutes liquidated damages and lias a term of the lease which was bargained for and included in the lease when it was signed in 1990. Pursuant to paragraph 19.1 of the lease, Defendants were required to pay liquidated damages in an amount double the rent. Plaintiff denies that Defendants acted with good faith. 59. Denied. The rental set forth in paragraph 59 does not establish the fair market value. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the remaining averments of paragraph 59 and the same are therefore denied. 60. Denied. The proposed rent was not above fair market value. If Defendants suffered any damages, which are otherwise denied, Defendants are responsible for said damages because they failed to respond to the proposed lease which was provided to them in September 1995 and failed to respond to Plaintiff's repeated requests to provide them with information regarding a reduction in space. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the remaining averments of paragraph 60 and the same are therefore denied. - 11 - 61. Denied. Plaintiff was not deceptive in any manner whatsoever. Defendants did not reasonably rely on any representations of Plaintiff and/or Campbell because they were obligated to pay liquidated damages during the holdover period pursuant to paragraph 19.1 of the lease. Defendants were not under duress to pay rent. On the contrary, they were obligated to pay rent pursuant to the terms of the lease. Defendants did not suffer any damages whatsoever. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the remaining averments of paragraph 61 and the same are therefore denied. WHEREFORE, Plaintiff Lemoyne Square Plaza Properties demands that this Court enter judgment in its favor and against Defendants MDS Health Group, Inc., MDS Health Group Limited, MetPath, Inc., and Corning Clinical Laboratories, Inc., for damages suffered, plus interest, attorneys' fees, and costs of suit, which sum is in excess of $25,000.00, and further demands that this Court dismiss Defendants' claim against it. COUNT II 62. Plaintiff incorporates paragraphs 29-62 of its Reply to New Matter and Answer to Counterclaim. 63. Admitted. - 12 - 64. Denied. Defendants were not charged excessive amounts for the expenses for which they agreed to pay Plaintiff. After reasonable investigation. plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 64 and the same are therefore denied. 65. Admitted in part, denied in part. Plaintiff admits that the pro rata costs were not to include roof repairs or janitorial services. Plaintiff denies that the roof was in a constant state of disrepair and further denies that roof leaked after each rain or snow storm. 66. Denied. The pro rata share of expenses were not excessively high by comparable office building standards. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 66 and the same are therefore denied. 67. Denied. Defendants were not charged excessive amounts for the expenses for which it agreed to pay Plaintiff. After reasonable investigation, plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 67 and the same are therefore denied. WHEREFORE, Plaintiff Lemoyne Square Plaza Properties demands that this Court enter judgment in its favor and against Defendants MDS Health Group, Inc., MDS Health Group Limited, - 13 - 't;; M '- ~ LI'l '. ,~ on . . .Joct' :ll:: )~ Q" ..J:..... U)-,! _"? .~ l'(') I r to :;e 'ffi ,,!: =:, ,il ..., ~!)U.. ~ ~ U) ,'3 en oJ . . McNEES, WAL.L.ACE & NURICK 100 PINE STR!:IT ~. o. .0.. 11.. HARluseURO. PA '7108 .~ ~'1 ~ ~ ~ '1 J F f .,.~ ~..LL ....".j?V . ~ 0 ;:.. "I'f ;.:::;1 "- ~ _',C-'''' :,1i""'; "":,~/ d .- ." . j~; ~ ~ ~ LEMOYNE SQUARE PLAZA PROPERTIES, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. No. 96-1563 Civil Term MDS INC., MDS HEALTH GROUP LIMITED, METPATH, INC., and CORNING CLINICAL LABORATORIES, INC., Defendants " ~. TO 'BOW C..,. day of June, 1996, upon presentation of ACTION IN EJECTMENT AND FOR DAMAGES AND NOW, this the Petition of Lemoyne Square Plaza Properties for Leave to Amend Complaint, a Rule is hereby issued upon MDS Inc, MDS Health Group, Metpath, Inc. and Corning Clinical Laboratories, Inc., and they are hereby directed to show cause, if any they have, why such Petition should not be granted. Rule returnable within ~ days from service hereof. , J. ("' ! ,>-,' r!.' ~'l.' r:" . "~.' "-' ExhIbIt A Corning"). Upon information and belief, Defendant Corning is affiliated with Defendant MetPath. 6. By lease dated August 6, 1990, Defendant MDS Health Group, Inc. leased from plaintiff approximately 5,228 square feet of shell space plus 49 square feet of common area space and appurtenant parking spaces located at 1 Lemoyne Square, Lemoyne, Cumberland County, Pennsylvania (hereinafter the "Premises"). A true and correct copy of the lease is attached hereto and made a part hereof as Exhibit "A" (hereinafter referred to as the "Lease") . 7. Pursuant to section 2.1 of the Lease, the original term of the Lease commenced on September 1, 1990 and terminated on August 31, 1995. 8. Pursuant to section 3.1 of the Lease, Defendant MDS Health Group, Inc. agreed to pay minimum rental in the amount of $87,070.56, in installments of $7,255.88 per month, during the first year of the Lease. 9. Section 3.1 provides that the minimum rental will increase by five percent (5%) each year of the original term. 10. In the final year of the original term of the Lease, which commenced on August 31, 1994, Defendant MDS Health Group, Inc. was obligated to pay the sum of $8,819.56 per month for minimum rental of the Premises. 11. Pursuant to Section 5.1 of the Lease, Defendant MDS Health Group, Inc. agreed to pay as additional rent a proportionate share of Plaintiff's cost of utilities, realty taxes and common area maintenance and repairs. 12. Upon information and belief, Defendant MDS Health Group, Inc. assigned its interest in the Lease and the Premises to Defendant MetPath on December 17, 1991. 13. This assignment does not relieve Defendant MDS Health Group, Inc. or Defendant MDS Health Group Limited of any liability under the Lease, including liability for minimum rent, additional rent, interest or attorneys' fees. 14. The original term of the Lease expired on August 31, 1995. 15. Defendants have not renewed or extended the Lease. 16. Defendants remained in possession of the Premises until March 31, 1996. 17. Pursuant to Section 19.1 of the Lease, in the event that Defendants remained in possession of the Premises after the Lease term has expired, Defendants were obligated to pay a sum equal to double the minimum rent. lB. In vacating the Premises, Defendants removed improvements, installations, additions, partitions, hardware, light fixtures, non-trade fixtures and improvements which, pursuant to Section 1.4 of the Lease, became Plaintiff's property at the expiration of the Lease. 19. Pursuant to Section 20.1 of the Lease, Defendants are obligated to pay interest on all sums due and owing to Plaintiff at the annual prime interest rate as established from time to time by Dauphin Deposit Bank and Trust Company, Harrisburg, Pennsylvania, plus three percent (3%) per annum. 20. Pursuant to Section 20.1 of the Lease, Plaintiff is entitled to all attorneys' fees, court costs, charges and expenses if judgment in a court of competent jurisdiction is awarded to Plaintiff. 21. Pursuant to Section 20.11 of the Lease, all notices were to be sent to MDS Health Group Limited at 100 International Boulevard, Etobicoke, Ontario, Canada M9W6J6. COUNT I 22. Plaintiff incorporates herein by reference paragraphs 1-21 of the Complaint as if set forth fully. 23. In failing to vacate the Premises when the lease term expired, Defendants became tenants at sufferance and became obligated to pay, as liquidated damages, those sums set forth in the lease agreement. 24. Defendants have failed to pay the full amount of rent or damages since August 31, 1995. 25. As a result of Defendants' failure to pay the full amount of rent or damages during t~eir continued and unlawful occupancy of the Premises, plaintiff has suffered and continues to suffer monetary damages, as follows: a. minimum rent for the period after the Lease terminated (September 1 through March 31) in the amount of c ~,: C') C ...--: .. 1.(,' (' ..;1 ~f,. ',. . , " .. ~~.., t.::.- , ~_i r ,-, ) I l , UJ ~~ ~--~ "'1' -.' liU u: " :::J l~ r: -'J " Lt. t.J") ,,,) 0 en ',.> , . McNEES. WALLACE lk NURICK 100 PINE STREET , .. O. .U. I'" HARRI9DU"O, PA. 1710e . JUl' 0 3 A ..a ~ ~ ~ 'S -..J III ~ ~ ~ I~'(\ 1fY1rl ."-"J .. . Corning"). Upon information and belief. Defendant Corning is affiliated with Defendant Metpath. 6. By lease dated August 6, 1990, Defendant MDS Health Group, Inc. leased from Plaintiff approximately 5,228 square feet of shell space plus 49 square feet of common area space and appurtenant parking spaces located at 1 Lemoyne Square, Lemoyne, Cumberland County, Pennsylvania (hereinafter the "Premises"). A true and correct copy of the lease is attached to the original Complaint and incorporated herein by reference (hereinafter referred to as the "Lease"). 7. Pursuant to section 2.1 of the Lease, the original term of the Lease commenced on September 1, 1990 and terminated on August 31, 1995. 8. Pursuant to section 3.1 of the Lease, Defendant MDS Health Group, Inc. agreed to pay minimum rental in the amount of $87,070.56, in installments of $7,255.88 per month, during the first year of the Lease. 9. Section 3.1 provides that the minimum rental will increase by five percent (5%) each year of the original term. 10. In the final year of the original term of the Lease, which commenced on August 31, 1994, Defendant MDS Health Group, Inc. was obligated to pay the sum of $8,819.56 per month for minimum rental of the Premises. 11. Pursuant to Section 5.1 of the Lease, Defendant MDS Health Group, Inc. agreed to pay as additional rent a proportionate share of Plaintiff's cost of utilities, realty taxes and common area maintenance and repairs. 12. Upon information and belief, Defendant MDS Health Group, Inc. a&signed its interest in the Lease and the Premises to Defendant MetPath on December 17, 1991. 13. This assignment does not relieve Defendant MDS Health Group, Inc. or Defendant MDS Health Group Limited of any liability under the Lease, including liability for minimum rent, additional rent, interest or attorneys' fees. 14. The original term of the Lease expired on August 31, 1995. 15. Defendants have not renewed or extended the Lease. 16. Defendants remained in possession of the Premises until March 31, 1996. 17. Pursuant to Section 19.1 of the Lease, in the event that Defendants remained in possession of the Premises after the Lease term has expired, Defendants we~e obligated to pay a sum equal to double the minimum rent. 18. In vacating the Premises, Defendants removed improvements, installations, additions, partitions, hardware, light fixtures, non-trade fixtures and improvements which, pursuant to Section 1.4 of the Lease, became Plaintiff's property at the expiration of the Lease. 19. Pursuant to Section 20.1 of the Lease, Defendants are obligated to pay interest on all sums due and owing to Plaintiff at the annual prime interest rate as established from time to time by Dauphin Deposit Bank and Trust Company, Harrisburg, Pennsylvania, plus three percent (3\) per annum. 20. Pursuant to Section 20.1 of the Lease, Plaintiff is entitled to all attorneys' fees, court costs, charges and expenses if judgment in a court of competent jurisdiction is awarded to Plaintiff. 21. Pursuant to Section 20.11 of the Lease, all notices were to be sent to MDS Health Group Limited at 100 International Boulevard, Etobicoke, Ontario, Canada M9W6J6. COUNT ! 22. Plaintiff incorporates herein by reference paragraphs 1-21 of the Complaint as if set forth fully. 23. In failing to vacate the Premises when the lease term expired, Defendants became tenants at sufferance and became obligated to pay, as liquidated damages, those sums set forth in the lease agreement. 24. Defendants have failed to pay the full amount of rent or damages since August 31, 1995. 25. As a result of Defendants' failure to pay the full amount of rent or damages during their continued and unlawful occupancy of the Premises, Plaintiff has suffered and continues to suffer monetary damages, as follows: a. minlmum rent for the period after the Lease terminated (September 1 through March 31) in the amount of .. - ,... ~i" .;t '::- .' .' 1-: ~~ , .<: WO ~( ~~ t'-' u.. )"':i ~';" ~,.. . ~ ;,) , , C< . , C' '\ ~ .,j ",I :!L:L. ~ l.>- ::5 u. r- 0 Cl\ 0