HomeMy WebLinkAbout06-6265
0.
REAGER & ADLER, P.c.
Thomas O. Williams, Esquire
Attorney LD. No. 67987
Email: Twilliams@ReagerAdlerPC.com
By: Richard J. Joyce, Esquire
Attorney LD. No. 85520
Email: Rioyce@ReagerAdlerPC.com
2331 Market Street
Camp Hill, P A 17011
Telephone: (717) 763-1383
Facsimile: (717) 730-7366
Attorneys for High Properties
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
HIGH PROPERTIES, a Pennsylvania
Limited Partnership,
Case No. O~- ~JLG'5- ~
Plaintiff
v.
Confession of Judgment
MONTESSORI SCHOOL & CHILDREN'S:
HOUSE, INC.
Defendant
CONFESSION OF JUDGMENT (MONEY DAMAGES)
Pursuant to the authority contained in the warrant of attorney, a true and correct copy of
which is attached to the Complaint filed in this action, I appear for the Defendant and confess
judgment in favor of the Defendant and against Plaintiff as follows:
Principal unpaid rent
obligations
$165,516.64
Court & Sheriff s costs
(to be added)
$To be added
Attorney's fees (%5) as
Authorized by the lease
TOTAL
$ 8.275.83
$173,792.47
Interest accrues at the rate of 6% per annum on the principal sum.
#
/'
Respectfully submitted,
Date: October 13-,2006
Tho s O. Williams, Esquire
Attorney J.D. No. 67987
Richard J. Joyce, Esquire
Attorney J.D. No. 85520
2331 Market Street
Camp Hill, P A 17011
Telephone: (717) 763-1383
Attorneys for Plaintiff
.
REAGER & ADLER, P.c.
Thomas O. Williams, Esquire
Attorney LD. No. 67987
Email: Twilliams@ReagerAdlerPC.com
By: Richard J. Joyce, Esquire
Attorney LD. No. 85520
Email: Riovce@ReagerAdlerPC.com
2331 Market Street
Camp Hill, P A 17011
Telephone: (717) 763-1383
Facsimile: (717) 730-7366
Attorneys for High Properties
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
HIGH PROPERTIES, a Pennsylvania
Limited Partnership,
Case No.
Plaintiff
v.
Confession of Judgment
MONTESSORI SCHOOL & CHILDREN'S:
HOUSE, INC.
Defendant
COMPLAINT FOR CONFESSED JUDGMENT (MONEY DAMAGES)
1. Plaintiff, High Properties, is a Pennsylvania Limited Partnership, with a mailing
address of 5000 Ritter Road, Suite 201, Mechanicsburg, Pennsylvania 17055.
2. Defendant, Montessori School & Children's House, Inc. is believed, and therefore
averred, to be a Pennsylvania Corporation, with a mailing address of 5020 Ritter Road, Suite
104-106, Mechanicsburg, Cumberland County, Pennsylvania 17055.
3. Judgment by confession is not being entered against a natural person in
connection with a consumer credit transaction, retail installment sales contract, or a residential
lease agreement.
4. On or about April 13, 2004, Plaintiff entered into a Lease Agreement with
Defendant for the property located at 5020 Ritter Road, Suite 104-106, Mechanicsburg,
Cumberland County, Pennsylvania 17055.
5. The Lease Agreement contained a confession of judgment provision for
Defendant's default for failure to pay rent or other monetary obligations where due. A true and
correct copy of the Lease Agreement is attached hereto as Exhibit "A".
6. The instrument in question has not been assigned since its execution on or about
April 13, 2004.
7. Plaintiff has not confessed judgment for money damages against Defendant in any
jurisdiction permitted to adjudicate the same.
8. Pursuant to the Lease Agreement, confession of judgment is authorized to be
entered upon default for failure to pay rent or other monetary obligations when
due under the terms of the lease.
9. Defendant has failed to pay all rent due and other monetary obligations due and
owing to Plaintiff, and all conditions precedent have been satisfied prior to the entry of a
confessed judgment.
10. The Defendant has abandoned the leased premised.
11. The following is an itemized computation of the amount due and owing which
includes rent and other monetary obligations, interest, together with attorney's fees:
Unpaid rent and other
lease payment obligations
as authorized by the terms
of the lease
$165.516.64
Court & Sheriff s costs
(to be added)
$To be added
Attorney's Fees (5%)
$ 8.275.83
Total
$173.792.47
WHEREFORE, Plaintiff, High Properties, demands judgment against Defendant,
Montessori School & Children's House, Inc., in the amount of$173,792.47 as expressly granted
and authorized by the Confession of Judgment provisions of the Lease Agreement entered into
between the parties herein.
Respectfully submitted,
Date: October J.3.., 2006
Th as O. Williams, Esquire
Attorney I.D. No. 67987
Richard J. Joyce, Esquire
Attorney J.D. No. 85520
2331 Market Street
Camp Hill, P A 17011
Telephone: (717) 763-1383
Attorneys for Plaintiff
~
LEASE AGREEMENT
Dated ~fAiL /3, ~()()C/
Between
mGH PROPERTIES
"Landlord"
and
THE MONTESSORI SCHOOL
& CmtDREN'S HOUSE, INC.
"Tenant"
Relating to
5020 Ritter Road
Suite 104-106
Mechanicsburg, Pennsylvania 17055
4/8/04
LEASE AGREEMENT
PART I - BASIC LEASE INFORMATION
This Lease Agreement (this "Lease") is made and executed this ~ay of ~ ' 2004, by and
between mGH PROPERTIES, a Pennsylvania limited partnership (herein called "Landlord") and THE
MONTESSORI SCHOOL & CHILDREN'S HOUSE, INC., a Pennsylvania non-profit corporation, (herein
called "Tenant").
This Lease consists of the following two parts: Part I which sets forth terms defined in this Lease (and
certain obligations under the Lease) and which is sometimes referred to as the "Basic Lease Information," and Part
II which provides the terms and conditions of this Lease and which is sometimes referred to as the Lease Terms and
Conditions. Part I and Part II collectively, are referred to as this "Lease." Capitalized terms not otherwise defined
in this Part I - Basic Lease Information shall have the meaning provided in Part II of the Lease.
The Basic Lease Information is as follows:
1. Landlord:
HIGH PROPERTIES, a Pennsylvania limited partnership.
2. Tenant:
THE MONTESSORI SCHOOL & CHILDREN'S HOUSE, INC, a
Pennsylvania non-profit corporation..
3. Permitted Use:
Montessori school with outside play area.
4. Campus:
Rossmoyne Business Center, located in the township of Lower Allen,
County of Cumberland, State of Pennsylvania.
B.~~ding 50 of the Campus located at 5020 Ritter Road,
Mechanicsburg, Pennsylvania.
5. Building:
6. Premises:
Suite 104-106 of the Building and a 60' x 70' fenced outdoor play area
as indicated on the plan attached hereto as Exhibit A.
7. Tenant Improvements:
Those improvements to be completed by Landlord in accordance
with the Work Agreement attached hereto as Exhibit B (Scope of
Work). In addition, Landlord will repair any roof leaks; provide
Tenant the ability to lock the electrical panel; and removal/repair
of any exposed wiring.
8. Term:
Five (5) Years
9. Term Commencement:
June 1,2004, except as otherwise provided in Section.2.2 of Part II of
this Lease.
10. Expiration Date:
May 31,2009
11. Rentable Area of Building:
30,800 Square Feet
12. Rentable Area of Premises:
3,000 Square Feet
13. Tenant's Share:
(For pro-ration of Additional Rent)
9.740 Percent (9.740%)
2
14. Monthly Base Rent:
15. Base Rent Over Term:
16. Base Year:
17. Additional Rent:
18. Rent:
19. Security Deposit:
20. Landlord's Address for Notices:
21. Tenant's Address for Notices:
22. Rent Payment/Address:
23. Commissions:
24. Calculation of Rentable Area:
June 1,2004 to May 31, 2005 - $3,000.00 - $12.00 PSF
June 1,2005 to May 31,2006 - $3,090.00 - $12.36 PSF
June 1,2006 to May 31, 2007 - $3,182.70 - $12.73 PSF
June 1,2007 to May 31, 2008 - $3,278.18 - $13.11 PSF
June 1,2008 to May 31, 2009 - $3,376.53 - $13:51 PSF
$191,128.92
Not Applicable
An amounts and charges required to be paid by Tenant hereunder
(other than Base Rent) as described more particularly in Section
5.2 of Part II of this Lease.
Includes both the Base Rent and Additional Rent to be paid
by Tenant hereunder.
$3,000.00
mGH PROPERTIES
clo High Associates, Ltd.
1853 William Penn Way
P.O. Box 10008
Lancaster, PA 17605-0008
Until Term Commencement:
THE MONTESSORI SCHOOL
& CHILDREN'S HOUSE, INC.
816 Flintlock Ridge Road
Mechanicsburg, PA 17053
After Term Commencement
THE MONTESSORI SCHOOL
& CHILDREN'S HOUSE, INC.
5020 Ritter Road, Suites 104-106
Mechanicsburg, Pennsylvania 17055
.. -
Payable to:
High Associates, Ltd.
P.O. Box 64047
Baltimore, MD 21264-4047
Broker's commission to be paid to:
Annette Cassel Means
5000 Ritter Road, Suite 201
PO Box 1367
MechaI!icsburg, PA 17055-1367
and
Ida McMurray
NAI/CIR
P.O. Box 8910
Camp Hill, PA 17001-8910
Non-Common Area Buildin~. The Premises are a part of a building in
which tenants are provided with their own private entrances and
3
25. Condition of Premises:
26. Payment of Operating Expenses:
27. Payment of Utilities:
28. Responsibility for HV AC Systems:
29. Obligation for Snow Removal
and Grounds Maintenance:
30. Exhibits and Riders:
private restrooms and which is without any interior areas shared by
tenants. "Rentable Area" has been calculated to include the entire
building.
Landlord shall improve the Premises with certain improvements
described more particularly in the Work Agreement attached to the
Lease as Exhibit B. Such improvements are referred to in the Work
Agreement and in the Part II of the Lease as the "Tenant
Improvements." Except as may be expressly provided in the Work
Agreement, Tenant acknowledges that neither Landlord nor any of
Landlord's Affiliates (as defined in Section I5(c) of Part II of the
Lease), nor any of their agents, have made any representations,
warranties or covenants, either express or implied, with respect to the
Premises, the Building, the Common Areas (as defmed in Section 1.3
of Part II of the Lease), or the Campus, or the condition of any of the
foregoing.
Tenant shall pay Tenant's Share (as defmed herein) of annual
Operating Expenses (as defined in Section 6.3 of Part II of the Lease).
Tenant shall pay all charges for utilities used or incurred by Tenant at
the Premises, including without limitation heat, water, sewer, gas and
electricity.
Tenant, at Tenant's sole cost and expense, shall perform all
maintenance and repair aBd replaeemeot of the HV AC Systems (as
defmed in Section 7.2 of Part II of the Lease) serving the Premises,
incly.ding without limitation the scheduled maintenance set forth on
Exhibit C to the Lease. Landlord shall, however, provide Tenant with
a one (I) year warranty on all HV AC repairs or replacements. This
warranty shall start as of the inception date !)fthe Lease. Tenant shall
still be responsible for routine maintenance during this period. To
ensure performance of routine maintenance, Landlord shall procure
and keep in effect, at the sole cost of Tenant to be paid as Additional
Rent, a standard preventative maintenance contract with a contractor
selected by Landlord who shall perform the scheduled maintenance set
forth on Exhibit C to the Lease. Repair and replacement expense
shall not exceed $800.00 per calendar year including the
preventative maintenance agreement.
Landlord shall mow lawns, maintain and replace shrubbery, weed
where appropriate, and remove snow and ice from walkways,
roadways and parking areas in accordance with the minimum
requirements specified on Exhibit D to the Lease. The cost of such
services shall be included as an Operating Expense.
Exhibit A - Depiction of the Premises
Exhibit A-I - Floor Plan
Exhibit B - Scope of Work
Exhibit C - Specifications for HV AC Maintenance Agreement
Exhibit D - Minimum Lawn Care and Snow Removal
Requirements
Exhibit E - Rules and Regulations
Exhibit F - Special Lease Terms (If Any)
4
31. Special Lease Terms:
1. After the 3rd anniversary of the original term, if the Tenant
requires more space, Landlord will accommodate Tenant within
the existing building (if available) or have an option to relocate
Tenant to a suitable building owned by High Properties within the
Rossmoyne Business Center with the ability for adequate outside
play area. If Tenant acquires additional space, Landlord agrees to
allow Tenant to increase the play area proportionately to the
additional space based upon requirements of the Department of
Education. Tenant shall have the Right of First Offer on any
adjacent space to the rear of Tenant in the same building and/or
the adjacent space to the right of the Tenant under the portico.
2. This Lease is contingent upon the Premises being issued or
granted a Class E Educational Occupancy Permit by the
Department of Labor & Industry and Lower Allen Township.
3. Landlord acknowledges and agrees The Montessori School &
Children's House, Inc. is solely responsible for this Lease, its
performance, and/or its responsibilities and that the Directors,
Officers, and Incorporators of The Montessori School &
Children's House, Inc. are providing no personal guaranties,
assurances, representations or securities, financial or otherwise, as
individuals, to Landlord for this Lease, its performance, and/or its
responsibilities.
4. Notwithstanding paragraph 4.1 and 5.1 ofthis Lease,
Landlord agrees that Tenant may pay the first month's Base Rent
of $3,000.00 by April 30, 2004 and such payments will not
C9.1!~titute a default by Tenant under the Terms of the Lease.
5
IN WITNESS WHEREOF, and intending to be legally bound, Landlord and Tenant have caused this Part I
of the Lease to be signed by their duly authorized officers or agents under seal, as of the date set forth above.
LANDLORD
mGH PROPERTIES,
a Pennsylvania Limited Partnership
By: High General Corporation,
sole General Partner
'1/J~/()'"
Date
. Fitzgerald
Vice President.Ooerations
TENANT
THE MONTESSORI SCHOOL
& CHILDREN'S HOUSE, INC.
ylr fi>ti-
By. Jff.iQ {\ ~
P ~:
Title: tt~ ~Vf".(.LIA--~~
By: fc-.d-~
Print Name:
Title: V P ;1;.}v &/"v-~ kJ,..A~
~/ ~ e; JJJW lIf=
J~(Y1JJ-.J E I 7IIv1J..17CvJ ~
Sed!
~~~
f~sl~1-
. f!gllfedQO~_
Date
6'1
" 1rP{ ~t
Date
6
LEASE AGREEMENT
PART IT - LEASE TERMS AND CONDITIONS
1. PREMISES.
1.1. Lease of Premises. Landlord hereby leases to Tenant, and Tenant accepts such lease from
Landlord, under the terms and conditions set forth in this Lease, the Premises which are identified in the Basic
Lease Infonnation. The Premises are part of the Building identified in the Basic Lease Infonnation.
1.2. Rentable Area. The total Rentable Area of the Building and the Rentable Area of the
Premises are as provided in the Basic Lease Infonnation. Such figures have been calculated in accordance with the
procedure set forth in the Basic Lease Infonnation. Tenant acknowledges and agrees that the Rentable Area of the
Building and the Rentable Area of the Premises stated in the Basic Lease Provisions are approximations only and
that the amounts so stated are accepted as fmal and binding upon Tenant and Landlord for all purposes of this
Lease.
1.3. Common Areas. During the Tenn of this Lease, Tenant, and its agents, employees and
invitees, shall have the right to use, in common with all others granted such rights by Landlord, in a proper and
lawful manner, (a) the common sidewalks, access roads, parking areas and other outdoor areas within the Campus
and (b) the common entranceways, lobbies, restrooms, hallways, elevators and building systems serving the
Building of which the Premises are a part of like amenities (collectively, the "Common Areas"). Such use shall be
subject to the terms of this Lease and to such reasonable rules and regulations as Landlord may from time to time
establish with respect thereto, including without limitation, the reservation of any particular parking spaces or
parking areas or other portions of the Common Areas for the exclusive use of other tenants of the Campus.
1.4. Landlord's Reserved Rights in Common Areas. Landlord reserves the right from time to
time, provided that Tenant's use and enjoyment of the Premises or the type or quality of services provided by
Landlord under this Lease is not substantially and adversely affected thereby, to (a) install, use, maintain, repair and
replace pipes, ducts, conduits, wires and appurte~ant meters and equipment for service to other parts of the Building
above the ceiling surfaces, below the floor surfa~s, within the walls and in the central core areas, and to relocate
any pipes, ducts, conduit, wires and appurtenant meters in the Premises which are so located or located elsewhere
outside the Premises; (b) make changes to the Common Areas including without limitation changing the location,
size, shape and number of driveways, entrances, parking spaces, parking areas, loading and unloading areas,
ingress, egress, direction of traffic, landscaped areas and walkways; provided such changes do not materially and
adversely affect Tenant's Pennitted Use of the Premises; (c) close temporarily all or any portion of the Common
Areas and/or the Building in order to perfonn any of the foregoing or any of the Landlord's obligations under this
Lease, so long as reasonable access to the Premises remains available during nonnal business hours; and (d) alter,
relocate, expand and/or add structures and improvements to, or remove same from, all or any portion of the
Common Areas.
2. IMPROVEMENTS.
2.1. Condition of Premises. The Premises shall be delivered by Landlord to Tenant in the
condition stated in the Basic Lease Infonnation.
2.2. Completion and Deliverv.
(a) If, in aGGordaoee ",itA Seetion 2.1, no Tenant Improvements are required fer the
Premises, the Premises shall be deemed delF/ered and ready for Tenant's eGeYpaney ("Ready for Oeeupaney") on
the Term CommeBeement Date demed in the Basie Lease Infermatien.
(b) If TeRaBt ImprovemeRts are required fer the Pfemises, The Premises shall be
deemed Ready for Occupancy when the Tenant Improvements have been Substantially Completed (as hereafter
defined). The term "Substantially Completed" when used in this Lease shall mean the eadier of (i) the date of
issuance of a Class E certificate of occupancy (temporary or pennanent) for the Premises by the Department of
Labor & Industry and the municipality in which the Premises are located, (ii) ar ifBa eertifieate of aeeupaney is
FeEf1lired, the date wheR Landlard's arehiteet ar geaeral eentraetor certifies that the Tenant ImprovemeRts are
SH9staBU.aYy CaHlfJleted, .....ltieh eertifieatiaR shall ge eonelusi'/e and biDding HpeR Landlord and Tenant, or (Hi) the
date eR whielt TeaMt takes possession of the Premises. The Tenant Improvements shall be deemed Subs!antially
Completed notwithstanding the fact that minor details of construction, mechanical adjustments or decorations (items
nonnally referred to as "punch list" items) which do not materially interfere with Tenant's use of the Premises (as
7
determined by Landlord in the exercise of its reasonable judgment) remain to be performed in accordance with the
Work Agreement. Landlord shall give Tenant reasonable advance notice of the date on which Landlord expects the
Tenant Improvements to be Substantially Completed and the Premises to be Ready for Occupancy.
3. TERM. Tenant shall have and hold the Premises for the Term set forth in Basic Lease Information,
beginning on the Term Commencement Date and ending at 11 :59 p.m. on the Term Expiration Date, both as
specified in the Basic Lease Information. In the event that Landlord is constructing the Tenarit Improvements and
the Tenant hnprovements are not Substantially Completed by the date set forth in the Basic Lease Information, then
the Term Commencement Date and the Term Expiration Date shall be modified in accordance with the following:
(a) If the Premises are Substantially Completed prior to the Term Commencement Date, and the
Tenant takes possession of the Premises, the Term Commencement Date shall be the earlier of (i) the date the
Tenant takes possession of the Premises, or (ii) the Term Commencement Date defmed in the Basic Lease
Information. The Term Expiration Date shall be the date specified in the Basic Lease Information.
(b) If the Premises are Substantially Completed after the Term Commencement Date specified in
the Basic Lease Information, the Term Commencement Date shall be the date the Premises are Substantially
Completed. The Term Expiration Date shall be extended for the period of said delay. If the Substantially
Completed Date is on a day which is other than the first day of a calendar month, rent (as hereafter defmed) for said
month shall be pro-rated based on a thirty (30) day month and the Term Expiration Date shall be further extended to
the end of the calendar month after the Initial Term is completed. Landlord shall not be liable for any damages or
losses caused by any delay in the delivery of the Premises, nor shall this lease be void or voidable. Except to the
extent otherwise provided in the Work Agreement, Tenant shall not be liable for any rent until such time as the
Premises are Ready for Occupancy.
4. SECURITY DEPOSIT.
4.1. Requirement for Security Deoosit. Simultaneously with the execution of this Lease, Tenant
shall deposit with Landlord as security for the payment and performance by Tenant of all of Ten ant's obligations
under this Lease the amount specified in the Basic Lease Information.
4.2. Return of Security Deposit. Within a reasonable time following the expiration of this
Lease, Landlord shall return the Security Deposit to Tenant (provided that Tenant is not in default under this Lease),
less such portion thereof as Landlord shall have qsed to make good any default by Tenant with respect to any of
Tenant's obligations under this Lease.
4.3. Deductions from Security Deposit. In the event of any default by Tenant hereunder,
Landlord shall have the right from time to time to apply all or any portion of the Security Deposit to the
performance of Ten ant's unperformed obligations but shall not be obligated to do so. If Landlord does so apply any
portion of the Security Deposit, Tenant, upon demand by Landlord, shall immediately pay to Landlord a sufficient
amount to restore the Security Deposit to its original amount. Tenant's failure to fully restore the Security Deposit
within ten (10) business days of Landlord's demand shall, without further notice or demand, constitute an Event of
Default (as hereafter defined). Use by Landlord of the Security Deposit, or any portion thereof, to satisfy any of
Tenant's obligations hereunder shall not constitute Landlord's waiver of Tenant's default with respect to such
nonperformance for which amounts are expended, nor prevent Landlord from exercising any other remedies
available to Landlord.
4.4. Transfer of Security Deoosit. In the event of the sale or transfer of Landlord's interest in
the Premises, Landlord shall transfer the Security Deposit (or the remaining balance thereof) to such purchaser or
transferee, whereupon Landlord shall be released from all liability to Tenant for the return of the Security Deposit.
Tenant shall look only to the party then Landlord for the return of the Security Deposit.
5. RENT.
5.1. Base Rent. The annual base rent (the "Base Rent") for the Premises shall be as set forth in
the Basic Lease Information. Tenant shall pay Base Rent in the monthly installments set forth in the Basic Lease
Information, in advance, on the first day of each calendar month during the Term; provided, however, that the Base
Rent for the first month of the Term shall be paid upon the signing of this Lease.
5.2. Additional Rent. In addition to Base Rent, Tenant shall pay all sums of money or other
charges required to be paid by Tenant under this Lease as additional rent (the "Additional Rent"), whether or not
same are expressly designated in this Lease as Additional Rent. All Additional Rent shall be due and payable with
each monthly installment of Base Rent unless otherwise provided herein.
5.3. Manner of Payment. Base Rent and Additional Rent (together, "Rent") payable under this
Lease shall be paid in lawful money of the United States of America without prior notice or demand therefore, and
without deduction, defense, counterclaim, setoff or abatement whatsoever. Rent shall be paid to Landlord at the
8
address designated for Rent in the Basic Lease Information or such other address as Landlord may notify Tenant in
accordance with the procedure for notice set forth in this Lease.
5.4. Interest on Delinquent Payments. If any payment of Rent is not paid within ten (10)
business days of its due date, Tenant shall pay interest on such delinquent payment, from the original due date of
such delinquent payment, and on any late charge from the due date of such late charge, at an interest rate (the
"Interest Rate") equal to the lesser of (a) one and one-half percent (1.5%) per month, or (b) the maximum rate
permitted by applicable law, until such amounts are paid in full. This Section 5.4 shall not relieve Tenant from its
obligation to pay Rent at the times and in the manners herein specified. Acceptance by Landlord of interest shall
not constitute a waiver of Tenant's default with respect to said delinquent payment, nor prevent Landlord from
exercising any other rights or remedies available to Landlord.
6. OPERATING EXPENSES.
6.1. Payment as Additional Rent. Tenant shall pay Tenant's Share (as defmed in the Basic
Lease Information) of Operating Expenses (as hereafter defined) as specified in the Basic Lease Information. Such
amounts shall be deemed Additional Rent due from'Tenant to Landlord hereunder.
6.2. Determination of Amounts Due.
(a) Landlord shall have the right, at its discretion, to make reasonable estimates (and to
revise any estimate from time to time, which may be more frequently than annually, as it shall deem necessary) of
the amounts of Additional Rent to become due for Tenant's Share of Operating Expenses in any calendar year, and
to require Tenant to pay such estimated amounts in equal monthly installments due as required by Section 5.3 on the
first day of each calendar month. Interest shall accrue thereon when and as required by Section 5.4. Whenever an
estimate of Additional Rent for Operating Expenses shall be revised as aforesaid, Landlord shall have the right to
correspondingly adjust the monthly installments thereafter to be paid. Alternatively, Landlord shall have the right to
bill Tenant at the end of each calendar year, or at such intervals during the applicable calendar year as Landlord
deems appropriate, for Tenant's Share of Operating Expenses incurred at the time of billing. In such case, Tenant
shall have ten (10) business days after receipt of Landlord's invoice to pay such Additional Rent, after which time
interest at the Interest Rate shall accrue.
(b) At the end of each calendar year, Landlord shall cause the actual amounts incurred
as Operating Expenses for such calendar year anq Tenant's Share thereof due as Additional Rent to be computed,
and a reconciliation statement thereof shall be sent to Tenant. Excessive payments received from Tenant shall be
credited toward subsequent payments due as Tenant's Share of Operating Expenses (with any net excess at the end
of this LeaSe being returned to Tenant provided Tenant is not in default hereunder), and .~eficits shall be paid by
Tenant on the next due date for payment of Operating Expenses set by Landlord, (with any net deficiency at the end
of this Lease to be paid by Tenant within ten (10) business days after Landlord's demand therefor or, at Landlord's
option, deducted from the Security Deposit). '
(c) Unless, within thirty (30) days after Tenant's receipt of Landlord's reconciliation
statement described above, Tenant notifies Landlord that it disagrees with Landlord's calculation, specifying in
detail the basis for such assertion ("Tenant's Dispute Notice"), Landlord's reconciliation statement provided to
Tenant shall be conclusive and binding upon Tenant for the period represented thereby. If Tenant timely sends
Tenant's Dispute Notice to Landlord, Tenant, at Tenant's expense, shall have thirty (30) days from the giving of
Tenant's Dispute Notice to audit the books and records maintained by Landlord for the calculation of Operating
Expenses for the year in question. Tenant's right to audit may be conducted directly by Tenant or by an
independent certified public accountant but, in either case, shall be conducted only at the location where Landlord
maintains its books and records and only during Landlord's normal business hours of operation. Tenant's failure to
conduct such audit within such thirty (30) day period shall be deemed a waiver of Tenant's right to do so, in which
case Landlord's reconciliation statement shall be conclusive and binding for such calendar year.
(d) Tenant shall promptly notify Landlord of the results of any audit so conducted by
Tenant. Upon Landlord's receipt of notice that Tenant claims an adjustment to Tenant is due (an "Overcharge
Notice"), Landlord shall notify Tenant in writing within thirty (30) days of receipt of the Overcharge Notice
whether or not it agrees with the determination set fordi in the Overcharge Notice. Landlord's failure to timely
notify Tenant that it disagrees with the Overcharge Notice ("Landlord's Dispute Notice") shall be treated as if
Landlord provided notice to Tenant that it disagreed with such Overcharge Notice. If Landlord agrees with the
Overcharge Notice, adjustment shall be made as provided in Subsection (b) above. If Landlord provides Tenant
with a Landlord Dispute Notice, then Landlord and Tenant, as soon as reasonably practical thereafter, shall .
endeavor to resolve the disputed charge. If they are unable to do so within thirty (30) days of Landlord's Dispute
Notice, then Landlord and Tenant shall select an independent arbitrator approved by the American Arbitration
9
Association, on whom they reasonably agree, to resolve the dispute, which determination shall be fmal and binding
on the parties. The cost of the arbitrator shall be prorated and paid by the parties based on the percentage of the
disputed amount that the arbitrator awards to each party or otherwise as directed by the arbitrator. Failure to select
an arbitrator within sixty (60) days of Landlord's Dispute Notice shall result in a resolution in Landlord's favor.
6.3. DefInition ofOoeratine: Expenses. .
(a) When used in this Lease, "Operating Expenses" shall mean all expenses and costs of
ownership, operation, management, maintenance, repair, replacement and safety of the Building and the Common
Areas, including without limitation: (I) Real Estate Taxes (as hereafter defined); (2) premiums for insurance
maintained by Landlord; (3) costs of repairs and maintenance to the Building, including periodic maintenance of the
heating, ventilating and cooling systems; (4) charges for heat, water, sewer, gas, electricity and other utility services
not otherwise separately metered to tenants; (5) janitorial and sanitation services, extermination, window washing,
and trash removal (including any fines assessed to Landlord for recyclables not properly sorted); (6) costs of snow
removal, lawn maintenance and landscaping; (7) costs for fIre and security alann systems and other security
measures including policing of parking areas; (8) management fees payable to the managing agent for the Building
. and the Campus (provided, however, that if the management fees are paid to any affiliate of Landlord, then the
amount thereof to be included in Operating Expenses shall not.exceed such amount as is customarily being charged
for similar services rendered to comparable buildings in the geographical market within which the Campus is
located); (9) Essential Capital Improvements (as hereafter provided in Subsection d); (10) cost of elevator
operation and maintenance, if any; (II) personal property taxes levied on or attributable to personal property used
in connection with the operation, management, maintenance or repair of the Common Areas or the Building; (12)
costs of licenses, permits and similar fees and charges related to operation, maintenance, repair, replacement or
registration of the Building or the Campus (including with respect to any underground or above-ground storage
tanks); (13) wages, salaries, bonuses and like expenses for management and security personnel; (14) costs of
supplies, materials and equipment (including rental fees) used in connection with the operation, management,
maintenance or repair of the Common Areas or the Building; and (IS) without limiting any of the foregoing, such
other expenses or charges which, in accordance with sound accounting and management principles generally
accepted with respect to a first-class building or corporate park, would be construed as an Operating Expense. (The
foregoing list is intended as an illustration of items which might be included as Operating Expenses and shall not be
,
construed as Landlord's commitment or obliga,tiQn to provide same.) All Operating Expenses contained herein are
prorated on a square foot basis with the exception of (8), Management Fees, which are prorated based upon the rent
billed.
(b) Operating Expenses shall not include (I) costs incurred for the account of,
separately billed to, and paid by specifIc tenants; (2) repairs or replacements to the extent that the cost of the same is
recovered by Landlord pursuant to original construction warranties; and (3) Landlord's cost of tenant leasehold
improvements, lease commissions and legal fees arising from lease disputes.
(c) For purposes herein, "Real Estate Taxes" shall consist of (1) all real estate taxes
relating to the Building and/or the Common Areas; (2) all charges which may be levied in lieu of real estate taxes;
(3) all assessments for municipal improvements and other governmental charges of any kind and nature for public
improvements, services, benefIts, or any other purpose; and (4) all assessments against the Building and/or the
Common Areas pursuant to any covenants, restrictions or easement agreements affecting the Building and/or the
Common Areas which become payable during the Term (or which become payable after the expiration or earlier
termination hereof and are attributable in whole or in part to any period dwing the Term hereof), together with all
costs and expenses incurred by Landlord in good faith in contesting, resisting, or appealing any such taxes or
assessments, including, without limitation, legal fees.
(d) If, during any year, Landlord shall make an expenditure for a capital improvement
which is an "Essential Capital Improvement" as hereafter defined, the annual amortization of such expenditure
(determined by dividing the cost of such expenditure by the useful life of the improvement determined by Landlord
in its reasonable discretion), plus any interest or financing charges thereon, shall be deemed an Operating Expense
for each year of such amortization period. "Essential Capital Improvement" as used herein means any of the
following: (1) an energy savings device, a labor savings device or other installation, improvement, upgrade or
replacement which reduces or is intended to reduce Operating Expenses, whether voluntarily undertaken or required
by any governmental authority having jurisdiction, (2) any installation, improvement, upgrade or replacement
required by any governmental authority having jurisdiction or Board of Fire underwriters (or similar gove_rning
body) and which Landlord is obligated to provide, and (3) an installation or improvement which directly enhances
the safety of the occupants of the Campus or tenants of the Building generally, whether voluntarily undertaken or
10
required by any governmental authority having jurisdiction. Landlord agrees that the cost of roof replacement
on the building is not an Essential Capital Improvement and agrees that Tenant will not be responsible for
costs of roof replacement.
(e) To the extent practicable, all Operating Expenses will be accounted for and
attributed separately for the Building and for the other tenant-occupied buildings of the Campus. To the extent such
allocation of an item of Operating Expenses is not practicable, allocations will be made among the Building and
other tenant-occupied buildings of the Campus proportionately among all thereof (based upon the respective square
footage of each as determined by Landlord) or equally among all thereof or in such other proportions as reasonably
may be determined by Landlord in the exercise of prudent management practices, which determination shall be
conclusive and binding upon tenant.
(t) Notwithstanding any proyision hereofto the contrary, in the event the Building is less
than ninety-five percent (95%) occupied during all or any portion of any calendar year of the Term, adjustment shall
be made in computing Operating Expenses for the Building during such year so that the same shall be computed for
such year as though the Building had been ninety-five percent (95%) occupied during such year.
7. UTILITIES. HV AC SYSTEMS AND SERVICES.
7.1. Utilities.
(a) Tenant shall pay all charges for utilities used or incurred.by Tenant at the Premises
as specified in the Basic Lease Information.
(b) If Tenant shall require electricity or install electrical equipment, including but not
limited to electrical heating, refrigeration equipment, electronic data processing machines, or other machines or
equipment which will in any way increase the amount of the electricity usually furnished for use as general office
space, or if Tenant shall attempt to use the Premises in such a manner that the services to be furnished by Landlord
would be required during periods other than or in addition to normal business hours, which are 7:30 a.m. to 6:00
p.m., Monday through Friday, excluding holidays, Tenant will obtain prior written approval therefor from Landlord
(and Landlord may require the installation of a separate sub-meter) and Tenant will pay for the resulting additional
direct expense, including the expense resulting from the installation of such equipment and meters as Additional
Rent promptly upon being billed therefor.
7.2. Heating. Ventilation and ~ir Conditioning SyStems. Tenant shall have the obligations for
maintenance and repair and replaeemeRt of the heating, ventilating and air conditioning systems (the "HV AC
Systems") serving the Premises as specified in the Basic Lease Information.
7.3. Snow Removal and Lawn Maintenance. Landlord shall have the:: obligations for snow
removal and ground maintenance to the Premises as specified in the Basic Lease Information.
7.4. Interruption of Services. Landlord reserves the right, without any liability to Tenant, and
without being in default of this Lease, to interrupt or suspend service of any of the heating, ventilating, air
conditioning, electric, sanitary, or other systems serving the Premises or the Building, or any other services required
to be performed by Landlord under this Lease, whenever and for so long as may be necessary by reason of accident,
emergencies, strikes or the making of repairs or changes which Landlord is required by this Lease or by law to make
or otherwise deems advisable, or by reason of difficulty in securing proper supplies of fuel, steam, water, electricity,
labor or supplies, or by reason of any other cause beyond Landlord's control, including without limitation
mechanical failure of building systems and governmental restrictions on the use of materials or the use of any of
such systems. In each instance, however, Landlord shall exercise reasonable efforts to eliminate the cause of
interruption and to effect restoration of service, and shall give Tenant reasonable notice, when practicable, prior to
the commencement of such interruption and anticipated duration thereof. Landlord shall not be liable for any
damages or losses to Tenant resulting from Landlord's failure or inability to deliver services as provided herein.
Without limiting the generality of the foregoing, Tenant shall not be entitled to terminate this Lease nor to receive
any diminution or abatement of Rent or other compensation or damages nor shall this Lease or any of the
obligations of Tenant be affected or reduced by reason of any such interruption, stoppage or suspension of any such
systems or services.
8. REPAIRS AND MAINTENANCE.
8.1. Repairs. Tenant, at Tenant's sole cost and expense, shall maintain in good repair the
Premises and every part thereof, including without limitation doors (personnel and vehicle), exterior windows,
waste disposal and plumbing systems, dedicated HV AC Systems and all other mechanical elements and building
systems serving the Premises, excluding only the following which Landlord shall maintain in good repair:. roof,
foundation, exterior walls, downspouts and gutters. Tenant shall-promptly perform all repairs in a good and
11
workmanlike manner. To the extent repairs are required to any structural components or building systems serving
the Premises, Tenant shall adhere to all procedures for Alterations set forth in Section 13 of this Lease.
8.2. Clean Condition. Tenant shall keep the Premises in a clean, sanitary, orderly and safe
condition to the reasonable satisfaction of Landlord and in accordance with any rules and regulations from time to
time in effect during the Tenn of this Lease. No outside storage of any kind shall be pennitted, and Landlord,
without prior notice to Tenant, shall have the right to remove any items so stored and to bill Tenant for the cost of
removal and storage as Additional Rent.
8.3. Janitorial and Trash Service. Tenant, at Tenant's sole cost and expense, shall perfonn all
janitorial services for the Premises to Landlord's reasonable satisfaction and in such manner so as to maintain the
Premises as a first-class building. Tenant shall promptly remove all trash from the Premises to the dumpster
designated by Landlord for Tenant's use and shall comply with all laws, regulations and ordinances relating to
recycling and disposal of trash generated by Tenant at the Premises.
9. USE AND COMPLIANCE WITH LAWS.
9.1. Pennitted Use. Tenant shall use the Premises only for the Pennitted Use set forth in the
Basic Lease Infonnation and uses incidental thereto. Tenant shall not pennit the Premises to be vacant nor shall
Tenant pennit the Premises to be used for any illegal purpose or in any manner which would tend to damage any
portion thereof or interfere or obstruct the rights of other tenants or occupants of the Building.
9.2. Insurance Risks. Tenant shall not conduct any activity or pennit any activity to be
conducted or place any equipment in or about the Premises or the Building which would in any way increase the
rate of fire insurance or other insurance on the Building.
9.3. Comoliance with Applicable Laws. Tenant shall comply with all applicable laws,
regulations, ordinances, and directives of the Federal Government, state and municipality in which the Premises are
located as well as all judicial orders and the requirements of any Board of Fire Underwriters (or any other body
exercising similar functions) as are in effect during the Tenn of this Lease, including without limitation, those
relating to hazardous materials or substances, and occupational safety and health, and, at Tenant's sole cost and
expense, shall perfonn any act or obligation arising from or as is necessary to achieve such compliance. At all times
during this Lease, Tenant shall maintain and comply with all pennits, licenses or other authorizations required by
any governmental authority or agency for Tenant:s occupancy or operations at the Premises.
9.4. Americans With Disabilities Act. In amplification of Tenant's obligations under Section
9.3 above and not in limitation thereof, Tenant shall be fully responsible for compliance with the Americans With
Disabilities Act of 1990, as amended from time to time (the "ADA"), and for all alteratiQns required to be made to
the Premises due to changes in or regulations under the ADA or judicial interpretations of the requirements of the
ADA or changes in Tenant's use of the Premises or in the nature of Ten ant's conduct of business at the Premises
(including, but not limited to, any changes in use or business conduct arising out of a sublease or assignment or
resulting in the Premises being deemed a "place of public accommodation" under the ADA) or Alterations made by
Tenant.
9.5. Hazardous Materials.
(a) In amplification of Ten ant's obligations under Section 9.3 above and not in
limitation thereof, Tenant shall comply with all applicable environmental laws, orders, regulations, ordinances and
directives now existing or hereafter enacted (the "Environmental Laws") and, at Tenant's sole cost and expense,
shall perfonn any act or obligation arising from or as is necessary to achieve such compliance.
(b) Tenant shall not cause or pennit any portion of the Premises or the Building to be
used for the production, storage, deposit or disposal of Hazardous Materials (as hereafter defmed), nor shall Tenant
pennit Hazardous Materials to ever be placed or located upon the Premises or the Building except in such de
minimis quantities of the types commonly used in office and cleaning supplies, provided that same are at all times
used, kept and stored in full compliance with the Environmental Laws. As used herein, "Hazardous Materials"
means all substances or pollutants which are declared to be or regulated as hazardous, toxic, dangerous or polluting
substances under the Environmental Laws at any time during the Tenn of this Lease, including, without limitation,
asbestos, polychlorinated biphenyl's (PCBs), urea fonnaldehyde foam insulation, and petroleum products and by-
products.
(c) Tenant shall promptly notify Landlord of any actual or threatened lien against the
Premises and/or the Building of which Tenant becomes aware pursuant to any of the Environmental Laws. Tenant,
at Tenant's sole cost and expense, shall promptly discharge and remove any lien arising from Tenant's violation of
any of the Environmental Laws, such action to be completed within thirty (30) days after Tenant first receives notice
of such lien or violation, or such shorter period of time if required, (1) by the governmental agency enforcing the
12
correction of such violation, or (2) to prevent the holder of any such lien from forcing the sale of the Premises
and/or the Building.
9.6. Tanks. Tenant shall not bury nor place any underground or above-ground storage tanks at
the Premises and/or the Building or the land on which same is located.
9.7. Landlord's Inquiries and Insoection. Tenant shall promptly and accurately respond in
writing to all inquiries made by Landlord (including without limitation requests for documents) pertaining to
Tenant's obligations under this Lease or use of the Premises. Landlord and any authorized agent or contractor hired
by Landlord may enter the Premises at any time and from time to time for purposes of inspecting same and
conducting tests thereupon as Landlord deems reasonably necessary to determine that Tenant is in compliance with
this Lease, but Landlord shall not be obligated to do so. Unless an emergency exists, as determined by Landlord in
its sole discretion, Landlord shall notifY Tenant at least one (1) day in advance of any such inspection or testing and,
to the extent practicable, shall conduct any such inspection or testing in such manner so as to minimize unreasonable
interference with Tenant's business. The costs of such investigation and inspection shall be included as an
Operating Expense unless it is determined that Tenant is in noncompliance with this Lease, in which case such costs
shall be paid solely by Tenant as Additional Rent within ten (10) business days of Landlord's demand therefor, after
which time interest at the Interest Rate shall be applied.
9.8. Notice of Violations. Tenant shall promptly notifY Landlord of any violation of any
applicable law which is alleged to have been committed at the Premises and shall forward to Landlord copies of any
written communications, complaints, citations or other notices relating to the condition of the Premises or
compliance with applicable laws (an "Action Notice"). Tenant promptly shall respond to any Action Notice, cure
any violation of applicable laws and have dismissed any legal action commenced against Tenant or the Premises to
the satisfaction of Landlord. Prior to undertaking same, however, Tenant shall propose to Landlord its intended
course of action and proceed only with Landlord's approval of same, which shall not be deemed to be Landlord's
guarantee that such action is appropriate nor impose any liability on same for Landlord.
9.9. Indemnification. In amplification of Tenant's obligations under Section 15 and not in
limitation thereof, Tenant shall indemnifY, defend (with legal eoUftSel seleeted hy Landlord) and hold hannless
Landlord from and against any and all claims, legal or equitable, damages for personal injury (including death) or
harm to property (real or personal), liabilities, pepalties, fmes and costs (including without limitation, investigation
and remediation costs, sums paid in private rights of action or in settlement of claims, legal fees, consultant fees and
expert fees) and damages in the nature ofloss of use of the Premises or the Building, or loss of a sale of the
Building, arising out of or in any way connected to any condition caused or created by Tenant's failure to comply
with its obligations under this Section 9.
9.10. Survival. The provisions of this Section 9 shall survive the scheduled expiration or earlier
termination of this Lease, and, in addition to performance of the obligations hereby required, Tenant shall continue
to pay rent, even though this Lease may have been terminated, until Tenant has completed the performance of all of
its obligations hereunder.
10. INSURANCE.
10.1. Tenant's Reauired Coverae:e.
(a) Tenant, at Tenant's sole cost and expense, shall carry and maintain during the Term
of this Lease the following types of insurance, in the amounts and form hereinafter provided:
(1) Public Liability and Prooertv Damage. Comprehensive public liability
insurance with a combined single limit of not less than one million dollars ($1,000,000) (with inflation
endorsement) or such larger amount as may hereafter be reasonably requested from time to time by Landlord,
insuring against any and all liability with respect to the Premises or arising out of Ten ant's maintenance, use or
occupancy thereof.
(2) Tenant's PropertY and Improvements. Insurance providing protection
against any peril included within the classification of "Fire and Extended Coverage," together with insurance against
sPrmkJer damage, theft, vandalism and malicious mischief, covering all property owned by Tenant which is located
at the Premises, including the Tenant Improvements, Tenant's trade fixtures, merchandise and personal property
from time to time in, or upon the Premises, and all personal property of others in Tenant's possession, in an amount
not less than the full replacement cost thereof without deduction for depreciation as may be customarily carried by
tenants of similar properties as Landlord may reasonably require from time to time.
(b) Policy Form. All policies of insurance required to be carried by Tenant hereunder
shall be issued by insurance companies with general policyholders' rating of not less than A and a financial rating of
AAA or better as rated in the most currently available "Best's Insurance Guide" and qualified to do business in the
13
state or municipality in which the Premises is located. All policies shall be in fonn and content acceptable to
Landlord and shall name Landlord and such other persons or entities as Landlord specifies from time to time as
additional insureds. Each policy shall provide (I) that Landlord, although named as additional insured, shall
nevertheless be entitled to recovery under said policy for any loss occasioned by reason of the acts or negligence of
Tenant or Tenant's officers, employees or agents, and (2) the company writing said policy shall give to Landlord
written notice not less than twenty (20) days in advance of any modification, cancellation or nonrenewal of such
insurance coverage. All policies shall be written as primary policies, without deductible, not contributing with, and
not in excess of coverage which Landlord may carry.
(c) Delivery of Policies. Certified copies of such policies of insurance or certificates
thereof shall be delivered to Landlord no later than ten (10) days prior to Tenant's possession of the Premises, and
thereafter no later than thirty (30) days prior to the expiration of the tenn of such policy. As often as any such
policy shall expire or terminate, renewal or additional policies shall be procured and maintained by Tenant in like
manner and to like extent. Tenant shall pennit Landlord at all reasonable times to inspect the policies of insurance
required to be maintained by Tenant hereunder.
(d) Blanket Policy. Notwithstanding anything to the contrary contained within this
Section 10, Tenant's obligations to carry the insurance herein required may be provided through a blanket policy of
insurance carried and maintained by Tenant; provided, however, that (I) Landlord and others hereinabove
mentioned shall be named as an additional insured thereunder as their interests may appear, (2) the coverage
afforded Landlord will not be reduced or diminished by reason of the use of such blanket policy of insurance, and
(3) the requirements set forth herein are satisfied.
10.2 Landlord's Required Coverage. Landlord shall procure and maintain in full force and
effect during the Term of this Lease, a nonassessable policy of me insurance, which insurance shall include
protection against those occurrences covered by standard "extended coverage" clause. The cost of such insurance
shall be an Operating Expense. If, however, the annual premiums charged to Landlord for such insurance exceed
the standard premium rates because of Tenant's operations or equipment upon the Premises, then Tenant shall pay
such additional premium amounts as Additional Rent. If, however, as a result of Ten ant's operations or equipment
upon the Premises, Landlord is unable to obtain such insurance coverage at nonnal rates, Landlord shall have the
right to terminate this Lease effective on such da\e as Landlord's coverage shall expire, be canceled or nonrenewed.
10.3. Waiver ofSubrogatiOJl..
(a) Tenant, for itself and any party claiming through or under Tenant by way of
subrogation or otherwise, hereby waives any claims against Landlord and/or Landlord's Affiliates (as defmed in
Section IS(c)) for loss or damage to property covered by insurance maintained by Ten~i or any party making its
claim through or under Tenant, even if such loss or damage shall have been caused by the fault or negligence of
Landlord or any of Landlord's Affiliates or anyone for whom they may be responsible.
(b) Landlord, for itself and any party claiming through or under Landlord by way of
subrogation or otherwise, hereby waives any claim against Tenant, its officers, directors, partners, shareholders or
employees, for loss or damage to property covered by insurance maintained by Landlord or any party making its
claim through or under Landlord, even if such loss or damage shall have been caused by the fault or negligence of
Tenant or anyone for whom Tenant may be responsible. Such waiver shall not, however, be deemed to prevent
Landlord from declaring Tenant in default of this Lease if the action or omission giving rise to the loss or damage
also shall constitute a default under this Lease.
(c) The waivers made pursuant to this Section 10.3 shall apply not only to loss or
damage occurring on the Premises, but for loss or damage to property which may occur in the Building, the
Common Areas and the Campus. Such waivers shall be effective, however, only of and with respect to any loss or
damage occurring during such time as the insured party's policy or policies of insurance covering said loss or
damage shall contain a waiver of the insurer's right of subrogation and a provision to the effect that such waiver
shall not adversely affect or impair said insurance or prejudice the right of the insured to recover thereunder (the
"Validation Provision"). Landlord and Tenant shall cause their respective insurers to include in their respective
policies a Validation Provision which has the same effect as the foregoing.
(d) The obligations of this Section 10.3 are mutual and shall be effective only during
such times as Landlord and Tenant have in effect policies of property and casualty insurance which include a
Validation Provision. Each party shall deliver to the other evidence reasonably satisfactory to the requesting party
of the required coverage (with Validation Provision) within ten (10) business days of the other party's request
therefor. If the waivers created by this Section 10.3 shall be determined to contravene any law with respect to
14
exculpatory agreements and are thereby rendered unenforceable, the liability of the party in question shall be
deemed not released but shall be secondary to the other's insurer.
11. FIRE OR CASUALTY.
11.1. Insured Casualty.
(a) In case of damage to the Premises by a risk insured against by Landlord, Landlord,
unless it shall otherwise elect as hereinafter provided, shall repair the Premises to substantially the condition which
existed prior to such damage, with reasonable dispatch after receiving from Tenant written notice that damage has
occurred, but without obligation to do so until Landlord has received confirmation from its insurance carrier and all
mortgagees holding mortgages on the Building that adequate insurance proceeds will be available for repair or
reconstruction. Landlord's restoration, however, shall be of only those portions of the Premises which were initially
provided at Landlord's expense, and restoration of items within the Premises which were not provided at Landlord's
expense shall be Tenant's obligation.
(b) Notwithstanding subparagraph (a) above, if damage to the Premises exceeds fifty
percent (50%) of its fair market value prior to such damage, as determined by a reputable fire adjuster or contractor
selected by Landlord or Landlord's insurer (the "Damage Estimate"), then either party may terminate this Lease in
the manner herein provided, in which event all Rent shall abate and this Lease terminate as of the date said damage
occurred. Tenant shall notify Landlord in writing of its decision to terminate this Lease within thirty (30) days after
delivery of the Damage Estimate to Tenant ("Tenant's Notice Period"). Tenant's failure to terminate this Lease by
written notice of termination delivered to Landlord within Tenant's Notice Period shall be conclusively construed as
Tenant's agreement for this Lease to continue; subject, however, to Landlord's right to terminate this Lease by
written notice delivered to Tenant within thirty (30) days after the expiration of Tenant's Notice Period. Ifneither
party terminates this Lease, then Landlord shall commence restoration, and Rent shall abate to the extent described
in Subsection (c) below.
(c) If the damages are such as to render the Premises untenantable, as reasonably
determined by Landlord, Rent shall abate in proportion to the portion of the Premises affected by such damage or of
which Tenant has been deprived use as a result of such damage or reconstruction, as reasonably determined by
Landlord. Such abatement shall commence as o( the date of such damage and end when restoration of the Premises
is Substantially Completed (as dermed in Section 2.2 hereof) or Tenant's business is totally or partially resumed,
whichever is earlier.
11.2. Uninsured Casualty. If damage or destruction of all or any pOI1ion of the Premises and/or
the Building is not fully covered by insurance proceeds received by Landlord, Landlord shall have the right to
terminate this Lease by written notice of termination delivered to Tenant within thirty (30) days after Landlord has
been notifIed in writing that said damage of destruction is not fully covered by insurance. In such case, this Lease
shall terminate as of the date specified in Landlord's notice to Tenant.
11.3. Mortgagee's Right. If the holder of any indebtedness secured by a mortgage covering the
Building requires that all or part of the insurance proceeds be applied to such indebtedness, then Landlord shall
have the right to terminate this Lease by written notice of termination delivered to Tenant within thirty (30) days
after such requirement has been made in writing upon Landlord. In such case, this Lease shall terminate as of the
date specified in Landlord's notice to Tenant.
11.4. Damage Near End of Term. Notwithstanding any provision of this Lease to the contrary,
Landlord shall not have any obligation whatsoever to repair, reconstruct or restore the Premises when the damage or
destruction occurs during the last year of the Term of this Lease (including any exercised renewal thereof), and, in
such event, Landlord shall have the option to terminate this Lease in which case Rent shall abate as of the date said
damage occurred.
11.5. Tenant's Compensation/Liability. In no case shall Tenant be compensated by Landlord
for damages or loss in the use of the Premises or for any inconvenience occasioned by such damage or restoration.
Notwithstanding Section 10.3, ifany damage is caused by the negligence or improper conduct of Tenant or any of
Tenant's employees, agents, contractors, licensees or invitees, Tenant shall be responsible for all damages not
covered by insurance, including without limitation, any deductible paid by Landlord and Rent through the Term
hereof, even if this Lease shall have been terminated.
12. EMINENT DOMAIN.
12.1. Termination Ril!b.ts. If such portion of the Premises and/or the Building is condemned or
taken by any governmental body or by any other body or agency-possessing the power of condemnation as, in the
reasonable determination of Landlord, substantially impairs the use or occupancy by Tenant of the Premises or
15
Landlord's ability to perform its obligations under this Lease (a "Substantial Taking"), then either party shall have
the right to terminate this Lease effective as of the date that possession is required to be surrendered to said
authority, as set forth below. If Landlord determines that a Substantial Taking is to occur, then Landlord shall so
notify Tenant in writing. Either party shall then have the right to terminate this Lease by written notice delivered to
the other within sixty (60) days after delivery of Landlord's notice to Tenant ofa Substantial Taking. The failure of
Tenant or Landlord to deliver termination notice within the time limit set forth above shall be conclusively
construed as such party's agreement for this Lease to continue.
12.2. Repair and Rent Adiusbnent. If a Substantial Taking is not to occur or if neither party
terminates this Lease under subsection 12.1 above, Landlord shall promptly restore the Premises and/or the
Building to substantially the same condition prior to such condemnation (less the portion thereoflost in such
condemnation), but without obligation to do so until Landlord receives the compensation awarded to Landlord on
account of such taking and confirmation from all mortgagees holding mortgages on the Building that the award shall
be made available to Landlord for restoration. In the event the compensation awarded to Landlord and made
available by such mortgagees is inadequate to fully cover the cost of necessary repairs or restorations, Landlord may
terminate this Lease. If this Lease is not terminated by Landlord, then Base Rent and Tenant's Share shall be
proportionately reduced by the portion of the Premises and/or Building of which Tenant shall have been deprived
on account of said condemnation, as reasonably determined by Landlord, such adjustment to be effective as of the
date possession is required to be surrendered to the condemning authority.
12.3. Temporary Condemnation. Ifsuch condemnation or taking is for temporary use only, this
Lease shall continue in full force and effect, and Tenant shall continue to comply with all of the provisions hereof,
except as such compliance shall be rendered impossible or impracticable by reason of such temporary taking. Rent
shall abate as reasonably determined by Landlord during the course of a temporary taking of the Premises or a
portion thereof to the extent and for the period of time that the Premises or portion thereof so taken shall have been
rendered untenantable.
12.4. Condemnation Awards. Tenant shall not be entitled to receive any part of any award or
awards that may be made to or received by Landlord relating to loss of the Premises and/or the Building, or any part
thereof, and Tenant hereby assigns to Landlord any share of such award as may be granted to Tenant.
Notwithstanding the foregoing, Tenant, at its sol~ cost and expense, may pursue independent proceedings against
the public authority exercising the power of cQR4emnation to prove and establish any damage Tenant may have
sustained relating to Tenant's business and relocation expenses, provided any such compensation does not diminish
Landlord's award.
12.5. Mortgagee's Rights. lfthe holder of any indebtedness secured-by a mortgage covering the
Building requires that the condemnation proceeds be applied to such indebtedness, then Landlord shall have the
right to terminate this Lease by written notice oftennination delivered to Tenant within thirty (30) days after such
requirement has been made in writing upon Landlord. In such case, this Lease shall terminate as of the date
specifIed in Landlord's notice to Tenant.
13. ALTERATIONS.
13.1. Consent Required.
(a) Tenant shall not make any alterations, additions or improvements to the Premises
including without limitation the building systems ("Alteration" or "Alterations") without the prior written consent of
Landlord which Landlord may withhold in its sole discretion. In no event shall any Alteration weaken the structure
of or impair the Building of which the Premises are a part.
(b) In connection with any request for Landlord's consent, Tenant shall deliver to
Landlord full and complete plans and specifications of the proposed Alteration. By approving any request for an
Alteration, Landlord does not expressly or implicitly covenant or warrant that the plans and specifications for such
Alteration are accurate, safe or sufficient, or that the same comply with any applicable laws, ordinances, building
codes, zoning requirements and like regulations (the "Building Standards"). Tenant shall be solely responsible for
compliance with the Building Standards and for obtaining all necessary permits and governmental approvals,
including a Certificate of Occupancy upon completion of the Alterations, if required by the municipality in which
the Premises are located. All Alterations (and restoration of the Premises following removal of same when
permitted or required hereunder) shall be done in a good and workmanlike manner in compliance with the Building
Standards and conditions of any permits and approvals.
(c) Tenant shall reimburse Landlord for Landlord's expenses incurred (including any
engineering, architectural or legal fees) in connection with revieWing any request by Tenant to make any Alteration
and/or coordinating the construction or removal of such Alteration.
16
13.2. Removal at Lease Termination. All Alterations shall remain on the Premises at the
termination of this Lease and shall become the property of Landlord, unless Landlord, at the time it consented to the
Alteration, required same to be removed at the termination of this Lease. In such case, Tenant, at Tenant's sole cost
and expense, shall remove the Alteration and repair all damage resulting from such removal and shall restore the
affected areas to a condition reasonably compatible with the remainder of the Premises as reasonably determined by
Landlord or, at Landlord's option, shall pay to Landlord all costs necessary to accomplish such removal and
restoration.
13.3. Contractors and Lien Waivers.
(a) Any contractors employed by Tenant to construct any Alterations or restoration of
the Premises shall be approved by Landlord in writing and shall carry contractor's liability insurance which covers
Landlord as additional insured, covering bodily injury in such amounts as may be customary and appropriate for the
Alteration undertaken, as reasonably determined by Landlord. Tenant shall provide proof of such insurance
acceptable to Landlord prior to commencement of any work on the Premises.
(b) Prior to commencement of any Alteratioris, Tenant shall procure waivers of
mechanics liens from all contractors and copies of said waivers shall be delivered to Landlord prior to construction
commencement. Tenant shall promptly pay and discharge all claims for labor done or supplies furnished to
Premises.
14. SIGNS AND APPEARANCE OF PREMISES.
14.1. ~. Landlord shall provide one outside sign per Building which shall include the name
of Ten ant Landlord also shall letter the entrance door to the Premises with the name of Ten ant.
14.2. Exterior. Tenant shall not place or cause to be placed on the exterior of the Premises, or
visible from the exterior of the Premises, or upon the roof or on any exterior door or wall or on any part of the
Common Areas, any sign, awning, canopy, marquee, advertising matter, decoration, lettering, or any other thing of
any kind (exclusive of the signs, ifany, which may be provided for in the Tenant Improvements), without the prior
written consent of Landlord.
14.3. Interior. Except as otherwise provided in this Section 14, Tenant shall have the right, at
its sole cost and expense, to maintain within the interior of the Premises all signs and advertising matter customary
or appropriate in the conduct of Ten ant's busines~; provided, however, that Tenant shall, upon demand of Landlord,
immediately remove any sign, advertisement, decoration, lettering or notice which Tenant has placed or permitted
to be placed in, upon, or about the Premises which is visible from the exterior of the Premises, and which Landlord
deems objectionable or offensive in Landlord's sole discretion. If Tenant fails or refuses. to do so, Landlord may
enter upon the Premises and remove same at Tenant's sole cost and expense. Tenant shall maintain such signs in a
neat, clear and orderly conditions.
14.4. Sign Removal for Maintenance. Landlord shall have the right at any time and from time
to time to remove any sign (interior or exterior) in order to paint or make repairs or alterations to the Premises.
Landlord shall have the right to charge Tenant for all costs incurred by Landlord to remove Tenant's signs at the
termination or earlier expiration of this Lease and to restore the areas affected by such sign removal to a condition
which is compatible with the remainder of the Premises, in Landlord's reasonable discretion.
14.5. Windows. Tenant shall, at all times, maintain the interior windows of the Premises in a
neat, clean and orderly condition. Landlord, at Tenant's expense, shall replace any broken window glass, (exterior
or interior) with comparable quality materials.
14.6. General Apnearance. Tenant acknowledges the appearance of the Premises affects the
value of other nearby real estate and that Landlord has a direct economic interest in the appearance of the Premises.
The appropriateness of such items, being a matter of aesthetic judgment, shall be entirely within the discretion of
Landlord, and there shall not be any standard or requirement of equality between the Premises and other real estate
owned by Landlord.
15. NON-LIABILITY AND INDEMNIFICATION OF LANDLORD.
(a) Release. Tenant hereby agrees that Landlord and Landlord's Affiliates, shall not be
liable to Tenant, and hereby releases Landlord and Landlord' Affiliates for all liability to Tenant, for injury to any
person (including bodily damage or death) or damage to any property (including real or personal property, whether
by theft or any other casualty) happening in any manner in, on or about the Premises, the Building or the Common
Areas from any cause whatsoever, unless caused solely by the gross negligence or willful misconduct of Landlord or
Landlord's Affiliates, but neither Landlord nor Landlord's Affiliates shall be liable to Tenant for any suc!! <hunage
or loss to the extent that Tenant is compensated therefor by Tenant's insurance or would have been compensated
therefor under policies which Tenant is required to carry under this Lease. In no event, however, shall Landlord or
17
Landlord's Affiliates be liable for punitive or consequential damages, in any event, or for any loss or damage caused
by or attributable to other tenants. Tenant agrees to the foregoing and makes the foregoing release on behalf of
Tenant and any party claiming a right or interest through Tenant, including without limitation Tenant's agents,
contractors, subcontractors, employees, licensees or invitees (collectively, "Tenant's Agents").
(b) Indemnification. Tenant shall indemnify, defend ('l:ith legal <:J01msel selected by
Landlard), and hold hannless Landlord and Landlord's Affiliates from and against all liability whatsoever which
may be imposed upon, incurred by, or asserted against Landlord and/or Landlord's Affiliates by reason of any of the
following which shall occur during the Term of this Lease, or during any period prior to the Lease Commencement
Date or after the expiration of this Lease when Tenant may have been given possession of, or access to the
Premises, the Building, the Common Areas or any other part of the Campus: (1) use of the Premises, the Building,
the Common Areas, or any other part of the Campus by Tenant or Tenant's Agents; (2) any repairs or Alterations or
other work or act done in, on or about the Premises (including without limitation as a result of defect in design,
material or workmanship) made by, or at the direction of Tenant or Tenant's Agents, except if such work or act is
done or performed by Landlord or Landlord's Affiliates or contractors or subcontractors hired by Landlord or any
of Landlord's Affiliates; (3) any negligence or wrongful act or omission on the part of Tenant or Tenant's Agents;
(4) any accident, injury or damage to persons (including bodily injury and death) or property (real or personal)
occurring in, or about the Premises, but not if caused solely by the gross negligence or willful misconduct of
Landlord and/or Landlord's Affiliates unless covered by insurance Tenant is required hereunder to provide; and (5)
any failure on the part of Tenant to perform or comply with any provision of this Lease. Without limiting the
generality of the foregoing, Tenant's obligations hereunder shall include all damages, obligations, penalties, fines,
liens, claims, reasonable fees for legal counsel selected by Laadlord, investigation costs, remediation costs and all
other reasonable costs and expenses incurred by Landlord, or by its agents, employees, contractors or
subcontractors. Tenant shall not settle or compromise any such liability for which indemnification is sought
hereunder without first obtaining Landlord's prior written consent, such consent by Landlord to be reasonably
given, and/or not unreasonably withheld.
(c) The liability of Landlord and/or Landlord's Affiliates to Tenant or anyone claiming
through Tenant shall be limited to Landlord's interest in the Building. The foregoing shall be absolute and without
exception whatsoever. When used in this Lease, PIe term Landlord's Affiliates shall mean any entity affiliated with
mGH PROPERTIES through common ownership or under common control (including without limitation High
Associates, Ltd., High Construction Company and High Investors, Ltd.), Landlord's property manager, and their
respective parlners, officers, directors, shareholders, and employees. .
(d) This Section 1 S- shall survive the termination of this Lease with respect to any
damage, injury, death or claim occurring before such termination, irrespective of when such claim is presented
against Landlord.
16. ASSIGNMENT AND SUBLEASING.
16.1. General Provisions.
(a) Tenant shall not sell, assign, transfer, mortgage, pledge, or sublease the Premises, or
any part thereof, nor permit occupancy of the Premises by any party other than Tenant, without Landlord's prior
written consent which Landlord may not unreasonably withhold in its sale discretioo. For purposes of this Lease,
any merger, consolidation, or sale or transfer of a controlling interest in Tenant (being 51 % or more, whether
accomplished in a single transaction or in a series of transactions) or a sale of substantially all of the assets of
Tenant shall be deemed an assignment of this Lease. All of the foregoing events described in this Section shall be
deemed to be a "Transfer."
(b) In the event that Landlord's consent is requested, Tenant shall deliver to Landlord
its request in writing along with notice as to (1) the identity, business and financial condition of the proposed
subtenant or assignee, (2) the terms and conditions of the proposed sublease or assignment, and (3) the nature of the
use of the Premises proposed by such assignee or subtenant. Tenant shall deliver such further
information as Landlord may request to make its decision.
(c) In response to each request for Landlord's consent to a Transfer, Landlord shall
have the option to terminate this lease, provided, however, that if such Transfer shall be a sublease, termination
shall apply only to the portion of the Premises for which Tenant has requested Landlord's consent to sublease.
Landlord may exercise such option by notice to Tenant ("Landlord's Termination Notice") delivered within sixty
(60) days of Tenant's request for Landlord's consent. Landlord's failure to timely deliver Landlord's Termination
Notice shall be deemed Landlord's waiver of such rights with respect to Tenant's request then under consideration.
Tenant shall have ten (10) days after receipt of Landlord's Termination Notice to notify Landlord in writing that
18
Tenant rescinds its request for Landlord's consent to a Transfer, in which case this Lease shall continue in full force
and effect. Tenant's failure to timely deliver such notice shall be deemed Tenant's assent to Landlord's
Termination Notice, in which case the Lease shall terminate as of the effective date intended by Tenant for such
Transfer, provided, however that if such Transfer shall be a sublease, termination shall be with respect only to the
portion of the Premises for which Tenant has requested Landlord's consent to sublease.
(d) In the event that Landlord consents to any Transfer, Landlord shall be provided with
a written agreement evidencing same which is acceptable in form and content to Landlord and by which the
transferee assumes all obligations of Tenant hereunder including Tenant's agreement to the warrant ofattomey
contained in Section 17.2(e) hereof. At Landlord's option, upon any Transfer, (1) any amounts to be paid to Tenant
in excess of Rent due hereunder shall be paid to Landlord without Landlord's application of same to Rent, and (2)
the transferee shall remit directly to Landlord all rental amounts due or any consideration paid to Tenant on account
of such Transfer when as ana due to be paid to Tenant. The foregoing shall apply to any Transfer, even if Landlord
has not consented thereto, but application thereof by Landlord shall not be deemed to release Tenant of liability for
failure to obtain Landlord's consent or otherwise be deemed to prejudice Landlord's rights hereunder.
( e) No Transfer shall relieve Tenant of any obligation under this Lease. Any purported
Transfer undertaken without Landlord's consent shall be voidable by Landlord and Tenant and transferee shall be
fully liable for any damages sustained by Landlord as a result of such Transfer. Landlord's consent to any Transfer
shall not constitute a waiver of the necessity of such consent to any subsequent Transfer of Tenant's interest.
(f) Tenant shall pay all of Landlord's cost and expenses (including reasonable fees for
legal counsel) in connection with any request for Landlord's consent required hereby.
16.2. BankruDtcv Considerations.
(a) The prohibitions in this Lease against assignment or sublease by Tenant shall be
construed to include assignments by operation of law or by voluntary assignment or for the benefit of creditors or
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 its creditors shall be made by Tenant, or if a
voluntary or involuntary petition in bankruptcy or for reorganization, or for an arrangement shall be filed by or
against Tenant, or if Tenant shall be adjudicated a bankrupt or insolvent, or if a receiver is appointed for Tenant or
for all or a substantial part of its property, or if allY such assignment or transfer by operation or law shall occur, then
and in any such event, Landlord shall have the.option to immediately terminate this Lease by written notice to
Tenant.
(b) Notwithstanding the foregoing, if Tenant, as a debtor in possession (the "DIP"), or a
trustee for the estate in bankruptcy of Tenant (the "Trustee"), assumes this Lease and proposes to assign this Lease,
or sublet the Premises (or any portion thereof), pursuant to the provisions of the Federal Bankruptcy Code, II
V.D.C. Sections 101 et ~., as amended from time to time (the "Bankruptcy Code"), to any person, partnership,
corporation, or other entity (the "Proposed Assignee") who shall have made a bona fide offer to_accept an
assignment of this Lease or a subletting on terms acceptable to the DIP or the Trustee, then such assumption of this
Lease and any such assignment or sublease shall be subject to all of the following:
(I) The DIP or the Trustee, as the case may be, shall give Landlord written
notice, immediately after receipt by the DIP or the Trustee, as the case may be, of any offer to accept an assignment
or subletting of this Lease, but in any event no later than ten (10) days prior to the date that the DIP or the Trustee,
as the case may be, shall make application to a court of competent jurisdiction for authority and approval to enter
into such assumption and assignment or subletting, which notice shall set forth: (i) the name and address of the
Proposed Assignee; (ii) all of the terms and conditions of the Proposed Assignee's offer; and (iii) the adequate
assurance to be provided to Landlord to assure the Proposed Assignee's future performance under this Lease,
including, without limitation, the assurances referred to in Section 365 (b) (3) of the Bankruptcy Code. Landlord,
upon receipt of such notice, shall have the prior right and option, to be exercised by notice to the DIP or the
Trustee, as the case may be, given at any time prior to the effective date of such proposed assignment or sublease, to
accept an assignment or sublease of this Lease by any other assignee or sublessee acceptable to Landlord, upon the
same terms and conditions and for the same consideration, if any, as the bona fide offer made by the Proposed
Assignee, less any brokerage commissions which may be payable out of the consideration to be paid by such person
for the assignment of this Lease.
(2) If the Rent agreed upon between the DIP or the Trustee, as the case may
be, and the Proposed Assignee under any proposed assignment or sublease of the Premises (or any part thereof) is
greater than the Rent that Tenant must pay Landlord hereunder fOr that portion of the Premises that is subject to
such proposed assignment or sublease, or if any consideration shall be received by the DIP or the Trustee, as the
19
case may be, in connection with any such proposed assignment or sublease, then all such excess rental or such
consideration, and any and all other moneys or other considerations payable to otherwise to be delivered in
connection with such proposed assignment or sublease, shall be paid or delivered to Landlord, shall be and remain
the exclusive property of Landlord, and shall not constitute property of the DIP, the Trustee, or of the estate of
Tenant, as the case may be, within the meaning of the Bankruptcy Code. Any and all moneys or other
considerations constituting Landlord's property under the preceding sentence not paid or delivered to Landlord shall
be held in trust for the benefit of Landlord and shall be promptly paid or turned over to Landlord.
(3) Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code shall be deemed, without further act or deed, to have assumed all of the
obligations arising under this Lease and each of the conditions and provisions hereof on and after the date of such
assignment. Any such assignee shall, upon the request of Landlord, forthwith execute and deliver to Landlord an
instrument, in form and substance acceptable to Landlord, confirming such assumption.
(4) Any proposed assignment of this Lease or sublease by the DIP or the
Trustee, as the case may be, pursuant to provisions of the Bankruptcy Code shall provide adequate assurance of
future performance under this Lease by the Proposed Assignee, which adequate assurance shall include, as a
minimum, the following: (i) any Proposed Assignee of this Lease shall deliver to Landlord a security deposit in an
amount equal to at least three (3) months Rent accruing under this Lease; (ii) an audited [mancial statement, dated
no later than six (6) months prior to the effective date of such proposed assignment or sublease, which [mancial
statement shall show the Proposed Assignee to have a net worth equal to at least twelve (12) months Rent accruing
under this Lease, or, in the alternative, the proposed Assignee shall provide a guarantor of such Proposed
Assignee's obligations under the assignment of this Lease, which guarantor shall provide an audited [mancial
statement meeting the above requirements and execute and deliver to Landlord a guaranty agreement in form and
substance acceptable to Landlord; and (iii) any Proposed Assignee shall grant to Landlord a security interest in
favor of Landlord in all furniture, fixtures, and other personal property to be used by the Proposed Assignee on the
Premises.
(c) Nothing contained in this Section shall be deemed a waiver of Landlord's other
rights or remedies under this Lease in the event of any default by Tenant, nor shall the acceptance by Landlord of
any Proposed Assignee constitute a waiver of ~dlord' s right to exercise any remedy hereunder for any default by
Tenant, the Trustee or the Proposed Assignee.. This Section shall only govern the Trustee and Tenant as DIP, and
any assignment or sublease pursuant to such assumption, in the event of a proceeding under the Bankruptcy Code; it
shall not apply to any assignment or sublease other than pursuant to the provisions of the. Bankruptcy Code, nor
shall it in any way limit Landlord's rights to damages or other relief in a proceeding under the Bankruptcy Code.
The requirements set forth in this Section for the assumption and any assignment or sublease of this Lease in a
proceeding under the Bankruptcy Code are intended by Landlord and Tenant to define the minimum acceptable
requirements for any assumption of this Lease and any subsequent assignment or sublease thereof, and shall not
constitute a waiver of, or in any way limit, Landlord's rights to petition a court of competent jurisdiction in a
proceeding under the Bankruptcy Code for relief and protection in addition to that set forth herein.
17. DEFAULT OF TENANT.
17.1. Events of Default. In addition to defaults specified in other sections of this Lease, the
occurrence of any of the following shall be a default by Tenant, and each shall constitute an "Event of Default"
hereunder without notice from Landlord unless expressly required herein:
(a) Tenant shall fail to pay Rent on its due date or shall fail to make any other payment
when required pursuant to this Lease (regardless of whether or not any legal or formal demand has been made
therefor);
(b) Tenant shall fail to pay Rent on its due date for three (3) or more occasions in any
twelve (12) consecutive calendar month period (provided, however, that the foregoing shall not be construed as a
limitation on Subsection (a) above or otherwise prejudice Landlord's right to hold Tenant in default for failure to
pay Rent when due);
(c) Tenant shall violate or fail to perform any of the terms, conditions, covenants or
agreements herein made by Tenant (other than those set forth in subsections 17.I(a), (b) and (d)-(h) inclusive or
where expressly declared to be an immediate default in other sections of this Lease) within thirty (30) days of
written notice from Landlord;
(d) Tenant shall abandon or vacate any material portion of the Premises, whether or not
Tenant is in default of the payments of Rent hereunder, and such-abandonment or vacation shall continue for a
20
period of five (5) business days after written notice thereofto Tenant by Landlord, which may be accomplished by
sending notice to last known address of Tenant and posting notice on the door of the Premises:
(e) Tenant shall be adjudicated a bankrupt or file a voluntary petition in any bankruptcy
or insolvency proceeding, or if any involuntary petition in any bankruptcy or insolvency proceeding shall be filed
against Tenant and not discharged by Tenant within sixty (60) days from the date offiling;
(f) Tenant shall make or consent to an assignment for the benefit of creditors or a
common law composition of creditors, without the prior written consent of Landlord;
(g) A receiver or trustee shall be appointed for all or substantially all of Tenant's assets;
and/or
(h) Tenant shall make a transfer in fraud of creditors.
17.2. Remedies. Upon the occurrence of any Event of Default, Landlord shall have the
following rights and remedies which shall be cumulative and are in addition to any other remedies available by law
or equity:
(a) Lease Termination. Landlord shall have the right to immediately terminate this
Lease and all rights of Tenant hereunder, in which event Tenant shall immediately surrender the Premises to
Landlord. If Tenant fails to do so, Landlord may, without notice and without prejudice to any other remedy
Landlord may have, enter upon and take possession of the Premises and expel or remove Tenant and its effects
without being liable to prosecution or any claim for damages therefor; and Tenant shall indemnify Landlord for all
loss and damages which Landlord may suffer by reason of such termination, whether through inability to relet the
Premises or otherwise, including loss of Rent for the remainder of the Term and any exercised renewals.
(b) Lease Termination and Rent Acceleration. Landlord shall have the right to
immediately terminate this Lease and all rights of Tenant hereunder and to accelerate Rent in which event Tenant
shall be liable for the total of: (1) any unpaid Rent which had accrued at the time of such termination, plus (2) Base
Rent for the then entire unexpired Term of this Lease along with all amounts due as Additional Rent for the then
entire unexpired Term of this Lease which shall be capable of precise determination at the time of Landlord's
election to recover accelerated Rent; (3) Landlord's good faith estimate of all other amounts due as Additional Rent
for the then entire unexpired Term of this Lease which shall not be capable of precise determination as aforesaid
(and for such purposes no estimate of any such c?mponent of Additional Rent shall be less than the amount which
would have been due if each such component co.ntinued at the highest monthly rate or amount in effect during the
twelve months immediately preceding the Event of Default). For purposes of such calculation the Term of this
Lease shall be the Term originally stated in the Basic Lease Information along with any exercised renewals thereof,
taken without regard to any early termination of the Term by virtue ofan Event of Defauit. Tenant also shall pay
any other amount necessary to compensate Landlord for all damages proximately caused by Tenant's failure to
perform Tenant's obligations under this Lease or which in the ordinary course of events would be likely to result
therefrom. Rent which accrued through the date of the Event of Default, shall include interest thereon at the Interest
Rate, and accelerated Rent thereafter due shall accrue interest at the Interest Rate until paid in fu~1.
(c) Option to Rent.
(1) Landlord, without terminating this Lease, shall have the right to enter upon
and take possession of the Premises without being liable to prosecution or any claim for damages therefor, and
Landlord may relet the Premises or any part thereof for such Rent and upon such terms as Landlord deems
appropriate in its sole discretion under the circumstances, (the "Mitigating Rent") with the right to make alterations
and improvements to the Premises required by any new tenant as to place the Premises in a first-class rentable
condition. If an amount equal to the full Rent which would have been paid by Tenant hereunder, plus the expenses
incurred by Landlord in connection with such reletting, including without limitation, costs of cleaning, painting,
repairing or refitting the Premises, advertising, broker fees, municipal fees and legal fees for preparation and
negotiation of the replacement lease (the "Relet Charges"), shall not be realized by Landlord in connection with
such reletting, Tenant shall remain liable for all damages sustained by Landlord, including without limitation, any
deficiency between the Mitigating Rent and the Rent and Relet Charges.
(2) Should that portion of the amounts received by Landlord as the Mitigating
Rent during any month be less than the Rent payable during that month by Tenant hereunder, then Tenant shall pay
such deficiency to Landlord immediately upon Landlord's demand therefor, and such amount shall accrue interest at
the Interest Rate from the date of demand until paid in full. Landlord shall have the right to bring suit for collection
of Rent on a monthly basis without prejudice to Landlord's right to enforce collection of Rent for any subsequent
month or, at Landlord's option, may be deferred until the expiration of the Term of this Lease, in which event
21
Tenant hereby agrees that the cause of action shall not be deemed to have accrued until the date of the scheduled
expiration of the Tenn of this Lease.
(3) Notwithstanding any provision hereofto the contrary, Landlord shall have
no obligation or duty to relet or attempt to relet the Premises, and Landlord's failure to relet the Premises shall not
release or affect Tenant's liability hereunder. Without in any way limiting the foregoing, Landlord shall have no
obligation to relet the Premises or any portion thereof in preference or priority to any other space Landlord may
have available for rent in the Building or the Campus, and, if Landlord endeavors or does rent the Premises or any
portion thereof, it shall do so to further its own interest and shall not act as agent for Tenant with regard to any
economic interest which Tenant may otherwise claim with respect to the Premises unless Landlord, by supplemental
written agreement, is contracted by Tenant to do so.
(d) Dispossession. The provisions of this Section 17 shall automatically operate as a
notice to quit (any notice to quit, or of Landlord's intention to re-enter, being hereby expressly waived), and
Landlord may proceed to recover possession under and by virtue of the Laws of the Commonwealth of
Pennsylvania or by such other proceedings, including re-entry and possession, as may be applicable.
(e) Confession of Judl!ll1.ent.
(I) TENANT HEREBY EMPOWERS ANY PROTHONOTARY OR
ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR TENANT IN ANY AND ALL ACTIONS
which may be brought for Rent (including accelerated Rent detennined in accordance with Section 17 .2(b) hereof),
Additional Rent, and/or to sign for Tenant an agreement for entering in any competent court an amicable action or
actions for the recovery of such Rent (including accelerated Rent detennined in accordance with Section 17.2(b)
hereof), and in said suits or in said amicable action or actions TO CONFESS JUDGEMENT against Tenant for all
or any part of Rent then due and unpaid, and for interest at the Interest Rate authorized by this Lease and costs of
enforcement, together with a reasonable attorney's commission in the amount of five percent (5%) of the amount
due, for which this Lease shall be sufficient warrant. 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 rent shall fall due or be in
arrears.
(2) Upon the expiration of the Tenn of this Lease or surrender hereof as
provided in this Lease, IT SHALL BE LA WFU~ FOR ANY ATTORNEY 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 ejeCbnent against Tenant and all persons claiming by, through
or under Tenant and therein CONFESS JUDGMENT for the recovery by Landlord of possession of the Premises,
for which this Lease shall be its sufficient wamint, whereupon, if Landlord so desires, a writ of possession or other
appropriate writ under the rules of civil procedure then in effect may issue forthwith, without any prior writ or
proceedings; provided, however, if for any reason after such action shall have been commenced, the same shall be
determined and the 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 under any of the
Terms of this Lease to bring one or more further amicable action or actions as hereinbefore set forth to recover
possession of the Premises and CONFESS JUDGMENT for the recovery of possession of the Premises as
hereinabove provided.
(3) In any amicable action of ejecbnent and/or for Rent, Landlord shall first
cause to be filed in such action an affidavit made by it or someone acting for it, setting forth the facts necessary to
authorize the entry of judgment, of which facts such affidavit shall be conclusive. If a true copy of this Lease (and
the truth of the copy asserted in such affidavit shall be sufficient evidence) be filed in such action, it shall not be
necessary to file the original as a warrant of attorney, any rule of Court, custom or practice to the contrary
notwithstanding. Tenant hereby releases to Landlord and to any and all attorneys who may appear for Tenant all
procedural errors in said proceedings and all liability therefor. Ifproceedings shall be commenced by Landlord to
recover possession under the Acts of Assembly and Rules of Civil Procedure, either at the end of the Tenn or earlier
termination of this Lease, or for nonpayment of Rent or any other reason, Tenant waives the right to any notice to
remove which maybe required by the Landlord and Tenant Act of 1951, as amended (or any similar or successor
law), and agrees that ten (10) days notice shall be sufficient where a longer period may be statutorily specified.
(f) Waiver of Redemption Rights. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future law in the event this Lease is terminated or Tenant is evicted
or dispossessed following an Event of Default.
(g) Removal of Contents bv Landlord. Landlord shall have the right, with or without
terminating this Lease, to re-enter the Premises and remove all persons and property from the Premises. All
22
property removed by Landlord may be stored in a public warehouse or elsewhere at the cost of and for the amount
of Ten ant, without service of not ice or resort to legal process (all of which Tenant expressly waives), and Landlord
shall have no liability whatsoever to Tenant therefor, including without limitation liability for trespass, conversion
or damage. No re-entry or taking possession of the Premises by Landlord pursuant to this Section 17 shall be
construed as an acceptance of a surrender of the Premises or an election to terminate this Lease unless a written
notice of such intention is given to Tenant or unless the termination thereof is decreed by a court of competent
jurisdiction and Tenant's liability under this Lease shall continue until the Term and any exercised renewal option
would have expired and such termination not occurred.
. (h) Sale of Ten ant's Property. Landlord may sell at public or private sale, all or any
part of Tenant's property recovered by Landlord in accordance with the foregoing Section with or without having
such property at sale. At any such sale, Landlord or its assigns may purchase unless otherwise prohibited by law.
The proceeds from any such disposition, less any and all expenses (including legal fees) connected with the taking
of possession, holding and selling of Ten ant's property, first shall be paid from the proceeds realized on such sale
and the balance applied to amounts due to Landlord hereunder. Any surplus shall be paid to Tenant or as otherwise
required by law, and Tenant shall remain responsible for any deficiencies. In connection herewith, Landlord shall
have any and all of the remedies afforded to secured parties under the provisions of the Uniform Commercial Code,
as codified in Pennsylvania.
17.3. No Waiver. No waiver by Landlord of any breach of any covenant, condition or
agreement herein contained shall operate as a waiver of such covenant, condition, or agreement, or of any
subsequent breach thereof. No payment by Tenant or receipt by Landlord of a lesser amount than the monthly
installment of Rent herein stipulated shall be deemed to be other than on account of Rent, nor shall any endorsement
or statement on any check or letter accompanying a check for payment of Rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the
balance of such Rent or to pursue any other remedy provided in this Lease. Payment received by Landlord when
Tenant is in arrears shall be applied as Landlord determines. No re-entry by Landlord and no acceptance by
Landlord of keys from Tenant shall be considered an acceptance ofa surrender of this Lease.
17.4. Right of Landlord to Cure Tenant's Default. Whenever Tenant defaults in the making of
any payment required hereinunder or in the doing of any act herein required to be made or done by Tenant, then
Landlord, without prior notice to Tenant, may make such payment or do such act on Tenant's behalf but shall not be
required to do so. All costs incurred by Landlord to satisfy Tenant's obligations, including without limitation
payment of any penalty or fme which may be imposed as a result of Tenant's failure or v!olation, shall be paid by
Tenant as Additional Rent within ten (10) business days of Landlord's demand for reimbursement (unless otherwise
expressly provided herein), after which time interest shall be applied at the Interest Rate. The making of such
payment or the taking of such action by Landlord shall not operate to cure or waive such default by Tenant nor
prevent Landlord from exercising any other remedy available to Landlord.
17.5 Collection Expenses. If Landlord consults an attorney or collection agency for the
collection of any sums due from Tenant or otherwise in connection with Tenant's performance hereunder, Tenant,
whether or not proceedings are instituted, shall reimburse Landlord for the reasonable fees for such agency and/or
legal counsel and court costs, ifany, incurred by Landlord within ten (10) business days of Landlord's demand for
reimbursement (unless otherwise expressly provided herein), after which time interest shall be applied at the Interest
Rate.
18. SURRENDER AT LEASE TERMINATION. Upon the scheduled expiration or earlier termination
of this Lease, Tenant shall promptly surrender to Landlord the Premises, together with all building apparatus,
machinery, replacements to mechanical and other systems serving the Premises, Alterations and fixtures (other than
Tenant's trade fixtures) situated thereon, except for items which Landlord, in writing, may have permitted or
required Tenant to remove at the termination of this Lease. Tenant shall return the Premises in substantially the
same condition as the Premises were delivered to Tenant at the commencement of this Lease, reasonable wear and
tear excepted. Prior to surrendering the Premises, Tenant, at Tenant's expense, shall have all carpets professionally
cleaned (by steam or chemical process), all vinyl floors waxed and all unfinished floors broom-cleaned.
19. HOLDING OVER. In the event that Tenant shall not immediately surrender the Premises on the
scheduled expiration or forfeiture earlier termination of this Lease, then, in addition to all remedies available to
Landlord for Tenant's default, Tenant, as a result of such holding over, shall become a tenant at will, at twice the
monthly installment of Base Rent due for the last month of the Term of this Lease together with all Additional Rent
due hereunder, and otherwise upon the terms, conditions, covenants and agreements of this Lease, except for
provisions which by their terms have expired. Tenant also shall be liable to Landlord for all damages which
23
Landlord suffers because of any holding over by Tenant (whether with or without Landlord's consent), and Tenant
shall indemnifY Landlord against all claims made by any other tenant or prospective tenant against Landlord
resulting from delay in delivering possession of the Premises to such other tenant or prospective tenant.
20. SUBORDINATION, NON-DISTURBANCE AND AITORNMENT.
20.1. Estoppel Certificate. Within fifteen (IS) days after Landlord's request, Tenant shall
provide an estoppel certificate in recordable form certifying (if such be the case) that this Lease is in full force and
effect and that there are no defenses or offsets thereto, or stating those claimed by Tenant, along with such other
information as Landlord reasonably may request. Tenant's failure to deliver such statement within the time required
shall be conclusive evidence of Tenant's certification that this Lease is in full force and effect, that there are no
defenses or offsets thereto, and of such other information as Landlord has reasonably requested.
20.2. Attornment. Tenant shall attorn to any mortgagee or purchaser of the Premises.
20.3. Subordination. Tenant's rights hereunder are subordinate to the lien of any mortgage or
mortgages, or to the lien resulting from any other method of fmancing or refinancing, or to any ground lease, now or
hereafter in force against the land of which the Premises are a part, and to all advances made or hereunder to be
made upon the security thereof. Regardless of the self-operating provision of this Section, if a prospective
mortgagee requests Tenant to sign a subordination agreement, Tenant shall do so promptly.
20.4 Rights ofMoI12:ae:ee. In the event of any act or omission of Landlord which would give
Tenant the right to cancel or terminate this Lease, or to claim a total or partial eviction, Tenant shall not exercise
such right (a) until it has given written notice of such act or omission to the holder of each mortgage and ground
lease whose name and address shall have been furnished previously to Tenant in writing, and (b) until a reasonable
period for remedying such act or omission shall have elapsed following the giving of such notice, which reasonable
period shall not be less than the period to which Landlord would be entitled under this Lease.
21. SUBDIVISION AND EASEMENTS. Tenant's use of the Premises and the Common Areas, ifany,
shall be subject to all covenants, conditions, easements and restrictions now or hereafter affecting or encumbering
the land on which same are located. Landlord reserves the right to (a) subdivide the land on which the Building is
located, (b) alter the boundaries of the land on which the Building is located, and ( c) grant easements on the land on
which the Building is located, and dedicate for public use portions thereof; provided, however, that no such grant or
dedication shall materially interfere with Tenant'~ use of the Premises or materially reduce the type or quality of
services provided by Landlord under this Lease... Tenant hereby consents, and subordinates this Lease, to such
subdivision, boundary revision, and/or grant or dedication of easements and agrees from time to time, at Landlord's
request, to execlite, acknowledge and deliver to Landlord, in accordance with Landlord'~ instructions, all documents
or instruments necessary to effectuate Tenant's.consent thereto.
22 ADDITIONAL INSTRUMENTS. Tenant, at the request of Landlord, shall execute such additional
instruments and further assurances as Landlord's mortgagee may request from time to time or as may be required by
Landlord.
23. LIMITED AITORNEY-IN-FACT. In the event Tenant shall fail to execute any such instruments or
certificates to carry out the intent of Subsections 20.1, 20.2, 20.3, 20.4, 21 or 22 within fifteen (IS) days of
Landlord's written request to execute such instruments or certificates, then Tenant hereby irrevocably appoints
Landlord as attorney-in-fact forTenant with full power and authority to execute and deliver in the name of Tenant
any such instruments or certificates.
24. LANDLORD'S COVENANT OF OUlET ENJOYMENT. Landlord covenants and warrants that
Tenant, and all those claiming through Tenant, shall have quiet and peaceable enjoyment of the Premises by and
through Landlord provided Tenant, and all those claiming through Tenant, are not in default of this Lease.
25. LANDLORD RIGHT OF ENTRY. Landlord shall have the right, during the last six (6) months of
the Term, to place on any portion of the Premises signs or billboards indicating that the Premises are "For Sale" or
"For Rent," but such signs shall be of such size and so placed as not to materially interfere with Tenant's
occupancy. At all times during this Lease, Landlord, upon reasonable notice to Tenant, shall be admitted to the
Premises at reasonable hours of the day to view the Premises, including without limitation, the right to show the
Premises to prospective purchasers, mortgagees, tenants or contractors.
26. RIGHT TO RELOC.^.TE TENt.NT. .^.t aD)' time and Hem time 1:e time after TeRaRt's exeeutieR of
this Lease, Landlord shall have the right, apeR previdiBg TeRant thirty (30) days Retiee in writing, te releGate
Tenant to reaseRably similar &paee elsewhere in the BuilEIiRg or ather building withiB the Campus, of approximately
the same s~ as the P-r-emises and to mave TeRant ta said spaee. IR the e'leRt that LaRdlor.d shall exer~ise_sHeh right
sYbseEfYeRt 1:0 the aGtHal aeeupaney of the Premises by Tenant, Landlord shall arr.aage for mey:.ng TeRant and shall
pay the eesls ofmayiBg TeRant to suell Re'N spaee, iRdudiRg the east erRe'll statioRery to replaee TeRant's existiBg
24
supply ami utility ceooeetien fees. FollowiRg aay SHeh reloeatieB, this Lease, md each aad all efthe terms aad
COVeBaBt5 and eeRditieBS hereer, shall remain iB full force and effeet aad thereupoB he deemed applicahle to sHeh
Bew space eKeept that a re\ised fleer plan. shall beeome part of this Lease and shall refleet the leGation of the Rew
space. Tenaat's Share and Base Rem shall be aQjYSted to reflect the size of the Rew premises, but SYaR adjlistmeBt
shall Bot mGrease the Base R.em by mere thaa IT/e percent (5%), regaflUess of the size efthe slibstituted pr-emises.
Shoeld TeRaRt r-erose to move te SliaR Rew space at the eBd of said thirty (39) day period, Laadlord shall have the
right, iB addition te exer.eismg any other remedies provided iB this Lease, to termiBate this Lease by Botice giveR te
TeBant in '....ritiBg withiB tea (l()) days fellowiBg the e1qJiratioR of the aforesaid thirty (30) day period, which
termiRatioR shall be effective as efthe date speeified iB Landlord's Retice. TeRant shall comiBue to pay Rent and
perform all ofRs ohligations herel:lDder 1IBtil termiBatieB of this Lease.
27. RULES AND REGULATIONS. At all times during the Tenn, Tenant shall comply with all rules
and regulations for the Building as set forth in Exhibit E attached hereto and made a part hereof, together with such
amendments and supplements thereto as Landlord may from time to time reasonably adopt. Tenant shall at all times
comply and cause its officers, employees, contractors, invitees and licensees to comply with any rules and
regulations as Landlord may from time to time adopt; provided, however, that such rules and regulations will
not impinge or otherwise impair Tenant's ability to operate a Montessori School at the Premises.
28. FINANCIAL STATEMENTS. Tenants shall, at the request of the Landlord, furnish its current
financial statements certified by an independent public accountant, and, if applicable, such annual or quarterly
reports as Tenant may file with the Securities and Exchange Commission or any other government agency. Such
financial statements shall be prepared in accordance with generally accepted accounting principles.
29. CORPORATFJPARTNERSHIP AUTHORITY. Tenant represents that the undersigned officer(s) or
partner(s) have been duly authorized to enter into this Lease and that the execution and consummation of this Lease
by Tenant does not and shall not violate any provision of any bylaws, certificate of incorporation, partnership
agreement, or other agreement, order, judgment, governmental regulation or any other obligations to which Tenant
is a party or is subject.
30. BROKER. Tenant warrants that it has had no discussion, negotiations and/or other dealings with any
real estate broker or agent other than the broker identified in the Basic Lease Information, if any ("Broker"), in
connection with the negotiation of this Lease. Tepant knows of no other real estate broker or agent who is or may
be entitled to any commission or rmder's fee in connection with this Lease. Tenant agrees to indemnify, defend and
hold Landlord harmless from and against any and all claims, demands, losses, liabilities, lawsuits, judgments, costs
and expenses (including without limitation, fees for legal counsel and costs) with respect.to any leasing commission
or equivalent compensation alleged to be owing on account of Tenant's discussions, negotiations and/or dealings
with any real estate broker or agent other than Broker. This Section is not intended to benefit any third parties and
shall not be deemed to give any rights to brokers or fmders. Landlord shall pay any commission owing to Broker
with respect to this Lease pursuant to a separate agreement or agreements entered with Broker. Absent written
notice from Tenant to Landlord prior to the initiation of any discussions concerning the expansion or extension of
Tenant's interest under this Lease, Broker's right to compensation of any kind shall be limited to that related to the
initial Term.
31. CHANGE IN OWNERSHIP. In the event that the Building of which the Premises is a part is sold, or
in the event of any change of legal title or equitable ownership thereof, all obligations and rights of Landlord
hereunder shall be transferred to such purchaser or assignee, and Landlord's obligations shall terminate and
Landlord shall be released and relieved from all liability and responsibility to Tenant. Tenant shall look solely to
such purchaser or assignee for the performance of said obligations or for the enforcement thereof. Each purchaser
of assignee shall in turn have like privileges of sale, assignment and release.
32. SUCCESSORS AND ASSIGNS. This Lease shall inure to the benefit of and shall bind the heirs,
successors and permitted assigns of the parties hereto to the extent that such rights hereunder may succeed and be
assigned according to the tenns hereof.
33. DESCRIPTIVE HEADINGS. The descriptive headings of the sections are inserted for convenience
only and shall not control or affect the meaning or construction of any of its provisions.
34. SERVICE OF NOTICE. All notices, demands or communications required by this Lease shall be in
writing and shall be effective only if sent by United States certified mail, return receipt requested or overnight
delivery deposited with a nationally recognized carrier with a receipt therefor. Notices shall be addressed to the
other party at the addresses set forth in the Basic Lease Information, or at such other address as either party may
have furnished to the other in accordance with this Section. Any.notice so provided shall be deemed to have been
25
delivered upon the earlier of (a) actual receipt, or (b) two (2) days after mailing by certified mail, return receipt
requested, or (c) one (1) day after depositing with a nationally recognized carrier.
35. SEVERABILITY. If any term, covenant, condition of provision of this Lease, or the application
thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, covenants, conditions or provisions of this Lease, or the
application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
36. TIME. Time is of the essence of every provision hereto. Notwithstanding the foregoing, Landlord
shall not be liable for any delays caused by events beyond Landlord's control ("Force Majeure"), and any time limit
provided herein or in the Work Agreement, ifany, for the amount of any delay attributable to Force Majeure
automatically shall be extended for the amount of any delay attributable to Force Majeure. Force Majeure shall
include without limitation acts of God, strikes, lock-outs, acts of terrorism, riot or civil commotion, acts of war, fire
or other casualty, requirements of governing authorities or inability to obtain necessary governmental permits and
approvals.
37. ENTIRE AGREEMENT AND GOVERNING LAW. This Lease is the entire agreement of Landlord
and Tenant and shall be governed and construed in accordance with the laws of the Commonwealth of
Pennsylvania. This Lease shall not be amended unless by written agreement signed by Landlord and Tenant.
38. CONSOLIDATION AND COUNTERPARTS. This Part II along with the accompanying Part I
constitute one agreement and may be signed in any number of counterparts, each of which shall be an original and
all of which together constitute one agreement binding on the parties hereto.
39. WAIVER OF TRIAL BY JURY. LANDLORD AND TENANT EACH WAIVE TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES
AGAINST THE OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE
AND OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM OF INJURY OR DAMAGE. IN THE
EVENT LANDLORD COMMENCES ANY SUMMARY PROCEEDING FOR NONPAYMENT OF RENT,
TENANT SHALL NOT INTERPOSE ANY COUNTERCLAIM OF ANY NATURE OR DESCRIPTION IN ANY
SUCH PROCEEDING.
26
IN WITNESS WHEREOF, and intending to be legally bound, Landlord and Tenant have caused
this Lease to be signed by their duly authorized officers or agents under seal, the day and year first above written.
LANDLORD
mGH PROPERTIES,
a Pennsylvania Limited Partnership
By: High General Corporation,
sole General Partner
'Ipa/i}C/
Date
BY~t~ ;/
Title:
TENANT
f!r;r /h? <. ~ 4
Date
,
THE MONTESSORI SCHOOL
& CHILDREN'S HOUSE, INC.
By ffc,~.(~/ 6~
Print .
Title:~' ~'Nj
By 1.d-(;' -~
Print Name:
Title: V.p ~
~! !!:1~ €, Tlfdll~~
5€c#ny
IIg j//f( ~ t/
Date
.. -
1 It /of
~~~
fre-$/~~
27
*
Exhibit B
Scope of Work
Montessori School & Children's House, Inc.
Landlord's Improvements to the Premises at Landlord's sole cost:
· Modify bathrooms to plan, including new vinyl tile on floors
· Install drywall along rear common wall to meet fire code requirements for Class E space
· Install windows as per plan
· Install wall openings as per plan
· Reconfigure restrooms
· Install two (2) toddler potties
· Install two (2) sinks child height as per plan
· Install new carpet in all areas except where vinyllPergo is indicated
· Replace any stained or damaged ceiling tiles
. Repair any roof leaks
· Lock electric panel on large office area
· . Adjust HV AC and electrical
. Paint
· Install manual fire alann, and automatic fire detection or smoke alarms as and/or if
required for Class E space by the\Department of Labor & Industry and/or Lower Allen
Township. "-
· Install fenced play area to meet Landlord's standards. Fence must. meet Department of
Public Welfare standards. Tenant agrees to pay a maximum $4,500.00 total fence cost.
Tenant's Improvements to the Premises at Tenant's sole cost:
· Tenant to install cabinets for storage in classrooms. At the end of Ten ant's term,
Landlord grants pelmission to Tenant to remove the cabinets and for the cabinets to
remain the Tenant's property. Upon removal of the cabinets, Tenant will be responsible
for restoring the walls to the original condition.
01
(tJ~ ~Ol)r
Date
01 ~~ f
bfs,~
Tenant's mltials
k<<
~
Landlord's Initials
1'1/0'{
~
28
EXIDBIT C
SPECIFICATIONS FOR H.V.A.C. MAINTENANCE AGREEMENT
The scheduled maintenance for servicing HV AC Systems are set forth below:
Heat PumpslAirConditionine: Units
Filter change
Quarterly
Pressures of refrigerant
Biannually
Lubricate
Biannually
Belt condition of air handlers
Annually
Check electrical connections
Annually
GaslOil Fumaees
ChaRge tiker if applieable
BillBBuaIly
Adjust tiriBg rate OD ROmeS
.\mlaally
Lubrieate apprepriate poiBts
:\BBUally
Cheek bek tensi08 &Bd eORditions
(Feplaee ifReeessary)
Ammally
Clean and eaHsFate
AmlUally
Cheek eleetneal &Bd pipe
eOBBeetia8S
:\8B:yaI~'
Ch&Bge ail tilt81'S a8 pumps
.'\BByally
~~f
Date
~ ' i&bI-
tenant's Initials
~~tialS
() 1 Hf'l 02 N f
t.~
~
o. if I or /1/'(
29
EXHIBIT D
MINIMUM LAWN CARE AND SNOW REMOVAL REOUIRE~S
LAWN CARE:
Established turf area on all properties are to be uniformly green during the growing season and
maintained at a height of2-3". Prior to cutting, the grass is to reach a height of no more than 5 - 6". Grass
clippings are to be removed frequently enough to maintain a thatch of no more than one inch.
All trees and shrubs are to be neatly trimmed and shaped as necessary in Landlord's sole
discretion to present a well groomed appearance. Mulch beds are to be neatly edged, top dressed annually with 2"
of fresh mulch, and weed free.
SNOWREMOV AL:
All sidewalks are to be shoveled free of snow and ice within twelve (12) hours after the snow fall
has stopped. or twelve (12) hours after the time that governmental authorities have ended restrictions on travel for
nonemergency vehicles if such restrictions have been imposed. All driveways and parking lots shall be plowed if
. snow accumulates more than two (2) inches. An anti-skid material such as cinders or rice stone shall be applied to
icy areas and inclines to reduce the risk of accidents. The use of any salt (NaCL) is strictly prohibited on concrete
sidewalks, and Tenant shall be responsible for any damage from use of same. Potassium chloride is permitted as an
ice melting agent for Tenant's use if Tenant desires to use ice melting agents or is required by the Lease to perform
such services.
dtf/1(J1( ~r
Date
b~ IJPL b1
tf/?/t>~
~hbF
Te~t's Initials
~
Landlord's Initials
kd-
~
30
EXHIBIT E
RULES AND REGULATIONS
[Unless otherwise provided herein, capitalized terms shall have the definition provided in the Lease]
I. No part or the whole of the sidewalks, plaza areas, passages, courts, stairways, corridors or halls of the Building
or land which the Building is located (herein, the "Property") shall be obstructed or encumbered by any tenant
or used for any purpose other than ingress and egress to and from the space leased to such tenant.
2. No awnings or other projections shall be attached to the outside walls or windows of the Building. No eurtains,
blinds, shades, or screens shall be attached to or hung in, or used in connection with, any window or door of the
space leased to any tenant other than those specified or supplied by Landlord. In the event such shades or
screens are specified or supplied by Landlord, removal of same at any time is prohibited.
3. No sign, advertisement, object, notice of other lettering shall be exhibited, inscribed, painted, or affixed on any
part of the outside or inside of the space leased to tenant so as to be visible from the exterior, without
Landlord's prior written approval.
4. No showcase or other articles shall be put in front of or affixed to any part of the exterior of the Building.
5. The water and wash closets and other plumbing fixtures shall not be used for any purposes other than those for
which they were constructed, and no sweepings, rubbish, rags, or other substances (including, without
- limitation, coffee grounds) shall be thrown therein. All damage resulting from any misuse of the plumbing
fixtures shall be the expense of the tenant who, or whose agents, employees, visitors, licensees, contractors or
suppliers, shall have caused such damage.
6. No tenant, nor any of its agents, employees; -visitors, licensees, contractors or suppliers of such tenant, shall at
any time bring or keep upon the space leased to such tenant or any other portion of the Building, any
flammable, combustible or explosive fluid, chemical or substance without Landlord's prior written approval;
and each tenant shall obey all fire regulations and procedures governing the space leased to such tc;mant and the
Building.
7. No tenant shall mark, paper, paint, bore into, make any alterations or additions to, or in any way deface any
part, including equipment and fixtures, of the space leased to such tenant of the Building without Landlord's
prior approval. No wires shall be installed except in conduits, ducts or outlets established for that purpose,
unless Landlord's prior written approval has been obtained. If any tenant desires to install any floor covering
other than carpeting, then, subject to Landlord's prior written approval, such floor covering shall be installed in
accordance with the manufacturer's specifications.
8. No cooking shall be done or permitted by any tenant in the space leased to such tenant or in the Building,
without Landlord's prior written approval, provided, however, that the heating, refrigerating and preparing of
lunches, beverages and light snacks for employees and children shall be permitted if appropriate facilities and
equipment exist for such purpose.
9. No tenant shall cause to permit any unusual or objectionable odors to be produced upon or emanate from the
space leased to such tenant.
10. Neither the whole nor any part of the space leased to any tenant shall be used for sale of merchandise, goods, or
property, without Landlord's prior written approval.
31
I L No tenant shall make, or pennit to be made, any unseemly or disturbing noises or disturb or interfere with other
tenants or occupants of the Building or neighboring buildings whether hy the use of any ffiusieal instnuBem,
r-aElie, tele'lisien set, ether auElie Elt",ice, lHHBusical neise, whistling, siBgiBg, ar in aay ether "Jay. Nothing shall
be thrown out of any doors, windows, or down any passageways or stairs of the Building:
12. All moving of safes, freight, furniture or bulky matter of any description to and from the space leased by any
tenant shall only take place within the confines of specified passageways or stairs, and during the hours
designated by Landlord. No hand trucks, except those equipped with rubber tires, shall be used in any space
leased by tenant nor in the interior walkways of the Building either by tenant or by jobbers or others in the
delivery or receipt of merchandise.
13. No tenant shall use or occupy or pennit any portion of the space leased to such tenant to be used or occupied as
an employment bureau or for the storage, manufacture or sale of liquor, narcotics or illegal drugs, weapons or
materials deemed pornographic in Landlord's sole discretion.
14. Landlord shall have the right to prohibit advertising by any tenant which, in Landlord's opinion, tends to impair
the reputation of the Building, and upon notice from Landlord, such tenant shall refrain from or discontinue
such advertising.
15. No space leased to any tenant shall be used, or pemtitted to be used, for lodging or sleeping or for any immoral
or illegal purpose.
16. The requirements of tenants shall be attended to only upon written application to the office of Landlord.
Building employees shall not be required to perform, and shall not be requested by any tenant to perform, any
work outside of their regular duties, unless under speCific instructions from the office of Landlord or the
building management.
,
17. Canvassing, soliciting, and peddling in the Building are prohibited, and each tenant shall cooperate to prevent
the same.
18. No large animals of any kind (other than gUide dogs for the visually impaired) shall be brought into or kept
about the Building by any tenant.
19. No tenant shall install or permit or allow installation ofa television, radio, or two-way radio antenna, or any
other similar antenna, on the roof, in the windows or upon the exterior of the Building without Landlord's prior
written approval.
20. No tenant shall tie into, or permit others to tie into, the water supply serving the space leased to such tenant or
the Building without Landlord's prior written approval.
21. No tenant shall remove, alter or replace the building standard ceiling light diffusers in any portion of the space
leased to such tenant without Landlord's prior written approval.
22. Except for purposes of emergency, notices, posters, or advertising media shall not be affixed on the interior or
exterior of the building.
23. Business machines and mechanical equipment belonging to tenant which cause noise or vibration that may be
transmitted to the structure of the Building or to any space therein to such a degree to be objectionable to
Landlord or to any tenant in the Building shall be installed and maintained by a such tenant/owner's expense on
vibration eliminators or other devices sufficient to eliminate such noise and vibration.
24. Tenant shall immediately notify the building management o(any serious breakage, fire or disorder which comes
to its attention in the space leased to such tenant or in any other portion of the Building.
32
~
'"
25. Tenant shall apply, at tenant's cost, such reasonable pest extennination measures as is necessary to maintain the
space leased to such tenant free from insects, vennm.. and other pests.
26. Tenant shall not burn any trash or garbage of any kind in or about the space leased to such tenant or in the
Building.
27. Tenant shall not pennit the use or placement of door mats or the like on the exterior of any entrance door to the
space leased to such tenant
28. Tenant shall not re-key the space leased to such Tenant without the prior written consent of Landlord and
provision to Landlord of the new keys.
29. For pwposes of these Rules and Regulations, the "building management" shall mean the representatives of
Landlord duly designated to manage the Building.
30. Landlord reserves the right to rescind, amend, alter or waive any of the foregoing Rules and Regulations at any
time when, in its judgment, it deems such action necessary, desirable or proper for its best interest and for the
best interests of tenants, and no such rescission, amendment, alteration or waiver of any Rule or Regulation in
favor of one tenant shall operate as an alteration or waiver in favor of any other tenant.
31. Landlord shall not be responsible to any tenant for the non-observance or violation by any other tenant of any
of these Rules and Regulations at any time.
ot;
/€Jflm BtJl)lj
Date
c:>q #t.. .l~t
1/1/0'1
#/(5..k~
,td-
~
Lan~tialS
33
Of
RIDER
OPTION #1 TO LEAsE FOR AN ADDITIONAL THREE (3) YEAR TERM
Tenant shall have the option, so long as Tenant is not in default, to lease the demised premises for an
additional term of three (3) years at an adjusted lease price. The adjusted price above referred to shall be as
follows:
Monthly Base Rent June 1,2009 to May 31,2010 - $3,477.83 - $13.91
June 1,2010 to May 31, 20II - $3,582.16 - $14.33
June 1,2011 to May 3 1,2012 - $3,689.63 - $14.76
Base Rent Over Term:: $128,995.44
This option shall be exercised by Tenant giving Landlord written notice six (6) months prior to the end of
the original term. If this option is exercised byTenant, Landlord shall retain the security deposit and it shall be as
set forth in the Lease.
LANDLORD
mGH PROPERTIES
a Pennsylvania Limited Partnership
By: High General Corporation,
sole General Partner
/.{ p?/ tJf/
Date
By Tide: ~ ~k c. Fitzgerald
Vice President-Operations
TENANT
THE MONTESSORI SCHOOL
& CHILDREN'S HOUSE, INC.
7f~~
d -
B ., 6~t-
itle:/JR~NCn.{k~
By k. ~~
Tit!., .p ~
~~~
34 I~/~
. .;
..
. RIDER
OPTION #2 TO LEASE FOR AN ADDITIONAL THREE (3) YEAR TERM
Tenant shall have the option, so long as Tenant is not in default, to lease the demised premises for an
additional tenn of three (3) years at an adjusted lease price. The adjusted price above referred to shall be as
follows:
Monthly Base Rent: June 1,2012 to May 31,2013 - $3,800.31 - $15.20 PSF
June 1,2013 to May 31,2014 - $3,914.32 - $15.66 PSF
June 1,2014 to May 31,2015 - $4,031.75 - $16.13 PSF
Base Rent Over Tenn: $140,956.56
This option shall be exercised by Tenant giving Landlord written notice six (6) months prior to the end of
the original term. If this option is exercised by Tenant, Landlord shall retain the security deposit and it shall be as
set forth in the Lease.
LANDLORD
mGH PROPERTIES
a Pennsylvania Limited Partnership
By: High General Corporation,
sole General Partner
I//I?J/()~
By
Title:
Date
TENANT
THE MONTESSORI SCHOOL
& CHILDREN'S HOUSE, INC.
By~~/6~d
v/~f'l-
By k..d~
~ TilI~ f,1Jj;ur:ff?-
7 5~~/: __
~~~
35 f7~~;~
Rossmoyne Busine._~' 'Center
....-. .. I
i HI i EXHmlT A
. .
i , t
.
. I
i I
. I
i I i
. . .
~~
'.~~~ .;__ DA1E:...:.:._..':~::",::;;:._.. _~_:~_.
,." I : "'j :~r, : f I, ' , ,
.- Ii!:! f i.j .
. T T. Y .
.' -T' -~-n
! ., .- ',.0 0 i
f .:. : . of :
":1 ~~. ~~.,
I . · "l
I J . i . *~!
"'--.. c::"'=> . ~
.. .,..... . .
-- 0 I' . .' .1
~LOADIIGDOCKs. ~~.\L-.;;.'
.... '-===.' *JU'!'1~1.2l;,L-! 0
I I _-:.c:
i. I :~~
f .., ~ :L..-L
. , U' i ~;
. ..-
! '. : J--
i ~.i.-L-
. *.,
f .. . . :-:or--
r ... ,!;,--
'~ ""\~
\:(). : ~.
. .-. - - -. - ....- - - - -- -
..
, .=:'-.~,...i..:: ........ .:..>.:.~:-_~ .'~
....
. ..:" .-
mGH PROPERTIES
~ail t. ':itzgerald
Vice President-Operations
TIlE MONTESSORI SCHOOL
&
~~. INC.
BY:/f1. ('
\1. '-
.'1',
AlTEST:
~/~y
BY:
~
}ccJ v,1
Q,. <
. - .. ~'--' .' -'-
. . ..' . -..~'.
'-;',"'- .:~~,:;..:;.:.~:.:.."
..- -. -'..
.
.
I
I
I
~
. .
i ~
V
~-~.
. . I
. : I
J . :
U-1
. ...
...
-
.
...
Iii ;
I .
I ;
. ,
I .
.;
i .i.
I
, i
PARKWG
* GRADe LEVa LOAocNG DooRs
. ,.... "::
'-.. Appro~imate location
'of play area
~
oJ-
..
w'
~h '!:}
. . ~-.Hl
r'"
0' .
:z.
.-. ::"', .....-
EXlDBIT A-'
....1
' ~,.; ,'. :.
" .-UZ-....".
, ~..,,~:.:,.
..- . "Ii,
: '. K'; ."
.. .-. ......:....,
'".,. .,....
.~
. .
. .
'- -'., ,: ~'.. . -'. . .
...., - .
, ~.~
~. : ; .J:
;/ r
, . .
~l
r
,,:,:'..:
.~
". t~.
. i.t,:J:
r'2iH
o ,. .
~
f
~. ~ 5
~ , Ci (l
I ~ J ,'. S ..r
.~.) <{"V
~.'1: . ~ . fLj ij_
. :;t: IllJ ut.. cf'
t'I 07 at~.",.
lL\f) \-
I
1~~
8 "'$
""0 -_
nil!
~Q)
C:>> c
J::I9
---
Lr...:g
- "1::P
00;
-SA:
4
.,.,
~ '~g'
! ri
~ ~ 9.
0= ~:z:!>
s: ~ ~ U l%)
J&;'
...
.q
.!
'"
-'
_t
1
/ l
, .
Ii.
-'
<(.
~
~.
.~
O.
:r.
u
~
o~ ~.
<(... ,~.
~~ ~.
Ilm 1:
"W~ Cl.
Z .-.u Q.
-~z~ ~.,
Q OC~_' ~
'~~G~ ~.
. ,.J ~1U5 Il'
lD an I: \S) a.
~f
~~~
~~
\
~
~
.-
I'
01
LEASE GUARANTY AND SURETY
This Guaranty is given by ELIZABETH TINKHAM, 17B Stone Spring Lane, Camp Hill, PA, 17011, (the
"Guarantor"), to HIGH PROPERTIES, 1853 William Penn Way, Lancaster, Pennsylvania 17605-0008 (the
"Landlord").
RECITALS
At the request of the Guarantor, the Landlord has entered into a payment plan with THE MONTESSORI
SCHOOL, (the "Tenant"), for the premises at 5020 Ritter Road, Suite 104, Mechancisburg, P A, 17055; and
The Landlord would not have allowed Tenant to defer rent for the months of May, 2005 tbru August, 2005
to be paid during the 2005/2006 School Year except for the request of the Guarantor and execution and delivery of
this Guaranty; and
In consideration of the Landlord entering into the Agreement with Tenant, the Guarantor agrees as follows:
1. Guarantv. The Guarantor, for itself and its successors and assigns, guarantees and acts as a surety
for the prompt payment when due, or whenever payment may become due under the terms of the Lease, of all
payments of rent, additional rent, and all other charges, expenses and costs of every kind and nature, which are or
may be due now or in the future under the terms of the Lease, any agreements or documents related to the Lease, or
any other transaction between the Landlord and the Tenant directly or indirectly related to the Lease; and the
complete and timely performance, satisfaction and observation of the terms and conditions of the Lease, and related
obligations arising by reason of the Lease, required to be performed, satisfied or observed by the Tenant.
2. Coverage of Guaranty. This Guaranty extends to the rent deferred for the months of May, 2005
thru August, 2005 totalling $15,299.00 plus accrued interest. The Tenant is obligated to repay the sum of
$15,299.00 plus interest during the 2005/2006 School Year.
3. Performance Guaranty. In the event that the Tenant fails to perform or satisfy repayment of the
deferred rent required to be performed, satisfied or observed by the Tenant, the Guarantor will promptly and fully
perform, satisfy and observe the obligation or obligations in the place of the Tenant. The Guarantor shall pay,
reimburse and indemnify the Landlord for any and all damages, costs, expenses, losses and other liabilities arising or
resulting from the failure of the Tenant to perform, satisfy or observe any of the terms of the rent repayment and acts
as surety for an4 from the Guarantor's failure to perform its obligations hereunder, including in each case reasonable
fees for legal counsel.
4. Waiver of Notices. Without notice to or further assent from the Guarantor, the Landlord may
waive or modify any of the terms, conditions of the Lease, or related Tenant obligations; or compromise, settle or
extend the time of payment of any amount due from the Tenant or the time of performance of any obligation of the
Tenant. These actions may be taken by the Landlord without discharging or otherwise affecting the obligations of
the Guarantor.
5. Unconditional Obligations. (a) The liability of the Guarantor is direct, inunediate, absolute,
continuing, unconditional and unlimited. The Landlord shall not be required to pursue any remedies it may have
against the Tenant as a condition to enforcement of this Guaranty. Nor shall the Guarantor be discharged or released
by reason of the discharge or release of the Tenant for any reason, including a discharge in Bankruptcy, receivership
or other proceedings, a disaffirmation or rejection of the Lease by a trustee, custodian, or other representative in
Bankruptcy, a stay or other enforcement restriction, or any other reduction, modification, impairment or limitations
of the liability of the Tenant or any remedy of the Landlord.
..
.
of
~.
(b) This Guaranty shall continue to be effective or shall be reinstated,
as the case may be, if at any time any payment, compliance or performance of any obligation hereby guaranteed is
rescinded or must otherwise be returned by the Landlord upon the insolvency, bankruptcy or reorganization of the
Tenant or otherwise, all as though such payment, compliance or performance had not been made.
( c) This Guaranty shall in no way be released or affected (1) by any act
or circumstance which might, but for this paragraph, be deemed a legal or equitable discharge of any guarantor or
surety, or (2) by reason of the death or dissolution, as applicable, of any Guarantor, or (3) by reason of any waiver,
extension, modification, forbearance or delay or other act or omission of the Landlord or its failure to proceed
promptly or otherwise with respect to the obligations hereby guaranteed, or (4) by the commencement, existence or
completion of any proceeding against the Tenant or otherwise related to the collection and enforcement of the
obligations hereby guaranteed, or (5) by reason of any action taken or omitted or circumstance which might vary the
risk or affect the rights or remedies of the Guarantor with respect to the obligations hereby guaranteed.
(d) The Guarantor hereby expressly waives and surrenders any
defenses to its liability hereunder based upon any of the foregoing, it being the purpose and intent of the parties
hereto that the obligations of the Guarantor hereunder are absolute and unconditional.
6. Subordination ofSubr02ation Rights. The Guarantor subordinates any and all claims which the
Guarantor has or may have against the Tenant by reason of subrogation for payments or performances under this
Guaranty or claims for any other reasons or cause. The Guarantor agrees not to assert any claim which it has or may
have against the Tenant, including claims by reason of subordination under this Guaranty, until such time as the
payment and other obligations of the Tenant to the Landlord are fully satisfied and discharged.
7. Bindin2 Effect. This Guaranty is binding upon the Guarantor, its successor and assigns, and is
binding upon and shall inure to the benefit of the Landlord, its successors and assigns, including without limitation,
any lenders to which Landlord may have assigned this Lease as security. No assignment or delegation by the
Guarantor shall release the Guarantor of its obligations under this Guaranty. The term "Tenant" used in this
Guaranty includes also the first and any successive assignee or sublessee of the Tenant or any assignee or sublessee
of the Tenant.
8. Modifications. The Guaranty may not be modified orally, but only by a writing signed by both
the Guarantor and the Landlord. Modifications include any waiver, change, discharge, modification, or tennination.
9. Each party who is a Guarantor of the obligations hereby guaranteed shall be jointly and severally
liable for all of the obligations hereby guaranteed. This Guaranty may be enforced against one of the Guarantors
separately or against more than one or all of the Guarantors jointly.
10. The Guarantor acknowledges that it has received and read a copy of the Lease and that the
Tenant's entry into and performance of the Lease will be of direct interest, benefit and advantage to the Guarantor.
11. If any provision of this Guaranty or the application thereof to any person or circumstance shall be
held to be invalid, illegal or unenforceable in any respect or to any extent, such provision shall nevertheless remain
valid, legal and enforceable in any such other respect and to such extent as may be permissible. In addition, any such
invalidity, illegality or unenforceability shall not affect any other provision hereof, but this Guaranty shall be
construed as if such invalid, illegal or unenforceable provision had never been contained herein.
12. CONFESSION OF JUDGMENT. EACH GUARANTOR HEREBY IRREVOCABLY
AUTHORIZES AND EMPOWERS ANY ATIORNEY OF RECORD, OR THE PROTHONOTARY OR CLERK
OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, TO APPEAR FOR SUCH
GUARANTOR IN ANY SUCH COURT AT ANY TIME AND FROM TIME TO TIME FOLLOWING THE
OCCURRENCE OF A DEFAULT UNDER THE LEASE WHICH CONTINUES BEYOND THE EXPIRATION
OF APPLICABLE NOTICE AND GRACE PERIODS OR THE FAILURE TO PERFORM THE OBLIGATIONS
REQUIRED HEREUNDER, AND THEREIN TO CONFESS OR ENTER JUDGMENT AGAINST SUCH
GUARANTOR IN FAVOR OF THE LANDLORD, ITS SUCCESSORS OR ASSIGNS, FOR THE FULL
AMOUNT OF THE GUARANTEED OBLIGATIONS, AS EVIDENCED BY AN AFFIDAVIT SIGNED BY A
DULY AUTHORIZED DESIGNEE OF THE LANDLORD SETIING FORTH SUCH AMOUNT, PLUS AN
A TIORNEY'S COMMISSION EQUAL TO ACTUAL AND REASONABLE LEGAL FEES INCURRED IN THE
ENFORCEMENT THEREOF AND HEREOF WITH COSTS OF SUIT AND RELEASE OF ERRORS. IF A
COPY OF THIS AGREEMENT, VERIFIED BY AN AFFIDAVIT, SHALL HAVE BEEN FILED, IT SHALL
NOT BE NECESSARY TO FILE THE ORIGINAL AS A WARRANT OF A TIORNEY IN CONNECfION
THEREWITH, EACH GUARANTOR WAIVES THE RIGHT TO ANY STAY OF EXECUTION AND THE
BENEFIT OF ALL EXEMPTION LAWS NOW OR HEREAFTER IN EFFECf. NO SINGLE EXERCISE OF
2
.
~
..
..
THE FOREGOING WARRANT OR POWER TO CONFESS JUDGMENT SHALL BE DEEMED TO EXHAUST
THE WARRANT OR POWER, BUT TIIE WARRANT AND POWER SHALL CONTINUE UNDIMINISHED
AND MAY BE EXERCISED FROM TIME TO TIME AS OFTEN AS TIIE LANDLORD SHALL ELECf, UNTIL
ALL OF THE OBLIGATIONS GUARANTEED HEREBY HAVE BEEN PAID, SATISFIED AND PERFORMED,
AS THE CASE MAY BE.
II. IN WITNESS WHE~ F, intending to be legally bound, the Guarantor has duly signed this Guaranty this
(Jl ~ day of , 2005.
GUARANTOR:
By
Attest
3
REAGER & ADLER, P.c.
Thomas 0, Williams, Esquire
Attorney J.D. No. 67987
Email: Twilliams@ReagerAdlerPC.com
By: Richard J. Joyce, Esquire
Attorney J.D. No. 85520
Email: Rioyce@ReagerAdlerPC.com
2331 Market Street
Camp Hill, P A 17011
Telephone: (717) 763-1383
Facsimile: (717) 730-7366
Attorneys for High Properties
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
HIGH PROPERTIES, a Pennsylvania
Limited Partnership,
Case No. () (; - h?--f.L;:)
Plaintiff
v.
Confession of Judgment
MONTESSORI SCHOOL & CHILDREN'S:
HOUSE, INC.,
Defendant
AFFIDAVIT THAT THE JUDGMENT IS NOT BEING
ENTERED BY CONFESSION AGAINST A NATURAL PERSON
IN CONNECTION WITH A CONSUMER CREDIT TRANSACTION
Commonwealth of Pennsylvania
)
)
)
ss:
County of Cumberland
I, Derry Young, being duly sworn according to law, hereby state that the judgment being
entered by confession is not being entered against a natural per
consumer credit transaction.
Sworn to and substbed
before me this II day of
()('_buv -,200~.
~~L-
Notary fublic
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Monica D. Zercher, Notary Public
Camp Hill Boro. Cumberland County
My Commission Expires Feb. 8, 2010
Member, Pennsylvania Association of Notaries
VERIFICATION
I, Derry Young, state that I am t2t.;JIfh8ttCi )Q L ~~ mIfl k~, of High Properties, and
,
I am authorized to make this verification. I do hereby verify that the facts set forth in the foregoing
document are true and correct to the best of my knowledge, information and belief.
I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.
94904, relating to unsworn falsification to authorities.
Date: /tp ;Jl
By:
~
~R?~
~ ~ r, ~
~~. ~.
~~
~~
~.
E-
~.
~
C>
""i--
!~
h
t
(}
~
1
~
~
............
~~
V,
(j
n
t"~.-,
(-,
,
,.
"
,
.,. -"',"'\
-<.. c...,,)
1-::>
"
.-1
:r:: -11
In""
C'
C' :'")
rJ
:;4
( '\ \ .
.:-.\
\,,")
i;:'-
c~
+
,
REAGER & ADLER, P.c.
Thomas O. Williams, Esquire
Attorney LD. No. 67987
Email: Twilliams@ReagcrAdlerPC.com
By: Richard J. Joyce, Esquire
Attorney LD. No. 85520
Email: Rioyce@ReagcrAdlcrPC.com
2331 Market Street
Camp Hill, P A 17011
Telephone: (717) 763-1383
Facsimile: (717) 730-7366
Attorneys for High Properties
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
HIGH PROPERTIES, a Pennsylvania
Limited Partnership,
Case No. O(r~:J- &;,
Plaintiff
v.
MONTESSORI SCHOOL & CHILDREN'S:
HOUSE, INC.,
Confession of Judgment
Defendant
To: Montessori School & Children's House, Inc., Defendant
You are hereby notified that on October _, 2006, judgment by confession was entered
against you in the sum of$173,792.47 in the above-captioned case.
DATE:
Prothonotary
YOU SHOULD TAKE THIS PAPER TO A LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Lawyer Referral Service
4th Floor, Cumberland County Courthouse
Carlisle, P A 17013
(717) 240-6200
\
I hereby certify that the following is the address of the Defendant stated in the Certificate
of Residence:
Montessori School & Children's House, Inc.
5020 Ritter Road, Suite 104-106
Mechanicsburg, P A 17055
Thorn O. Williams, Esquire
Attorney LD. No. 67987
Richard J. Joyce, Esquire
Attorney LD. No. 85520
2331 Market Street
Camp Hill, PA 17011
Telephone: (717) 763-1383
Attorneys for Plaintiff
A
, Dernandado( s)