LEASE AGREEMENT
THIS AGREEMENT OF LEASE, made as of the last date endorsed hereon
("Effective Date"), by and between NAPPEN & ASSOCIATES, a Pennsylvania
limited partnership, t/a 309 DEVELOPMENT COMPANY ("Lessor")
A N D
MICRO MEMORY BANK, INC., a Pennsylvania corporation ("Lessee").
Lessee and Lessor, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is
hereby acknowledged and intending to be legally bound hereby, agree as
follows:
1. Lease and Premises.
A. Lessor hereby demises and leases to Lessee and Lessee
hereby leases from Lessor that certain premises situate in Montgomery
Township, Montgomery County, Pennsylvania, known and numbered Lot No. 16,
Montgomeryville Industrial Center, having a post office address of 130
Corporate Drive, Montgomeryville, PA 18936 together with the building
("Building") containing approximately 17,500 sq. ft., more or less, and
improvements constructed thereon, such ground, Building and improvements
being hereinafter collectively called the "Premises."
B. Lessee acknowledges that it has inspected the Premises and
leases the same (other than Lessor's Work {as hereinafter defined} and
Lessee's Work {as hereinafter defined}) in the condition existing on the
Effective Date. Notwithstanding anything set forth herein to the contrary,
prior to the Lease Commencement Date (as hereinafter defined), Lessor shall
construct, at Lessor's cost and expense, the office improvements as set
forth in Exhibit "A" attached hereto and made part hereof, in accordance
with Lessor's standard office specifications ("Lessor's Work").
Additionally, prior to the Lease Commencement Date, Lessor shall construct,
at Lessee's expense, the improvements set forth in Exhibit "B" attached
hereto and made part hereof ("Lessee's Work"). Within ten (10) days after
rendition of an invoice (and as a condition precedent to commencement of
Lessee's Work), Lessee shall pay to Lessor a sum equal to twenty percent
(20%) of the estimated price of Lessee's Work. Upon completion of Lessee's
Work by Lessor, Lessee shall pay the remaining balance of the price of
Lessee's Work to Lessor within ten (10) days of final invoicing therefor.
C. The Premises shall be occupied and used for office,
warehouse and manufacturing, in accordance with applicable laws, ordinances
and regulations. Under no circumstances whatsoever may the Premises be used
in whole or in part for personal, family, residential or household purposes.
2. Term.
A. The term of this Lease shall be five (5) years, commencing
April 1, 2001("Lease Commencement Date") and expiring at 11:59 p.m. on
March 31, 2006, unless extended, renewed or previously terminated, as
hereinafter set forth.
B. If Lessee remains in possession of the Premises, including
failure to restore the same to the conditions required hereunder after the
expiration of the term of this Lease, or any extension or renewal thereof
(a "Holding Over"), without the prior written consent of Lessor, such
Holding Over shall create a Holding Over tenancy from month to month with
respect to the Premises on all of the same terms and conditions as are in
effect on the last day of the preceding term, except that the monthly
installment of Minimum Annual Rent shall be increased to an amount equal to
Two (2) times the monthly installment of Minimum Annual Rent in effect on
the last day of the preceding term. Notwithstanding anything set forth to
the contrary, Lessor may cancel such month to month Holding Over tenancy at
any time within such Holding Over tenancy upon Fifteen (15) days prior
written notice, but such cancellation notwithstanding, Minimum Annual Rent
shall accrue at the Holding Over rate set forth herein until Tenant vacates
fully the Premises and restores the same to the condition required hereunder.
C. Lessor shall not be liable to Lessee in any respect in the
event that Lessor is unable to deliver possession of the Premises to Lessee,
provided Lessee shall not be required to pay any installment of Minimum
Annual Rent (as hereinafter defined) or Additional Rent.(as hereinafter
defined) until such time as Lessor delivers possession. If such delivery is
not made on or before thirty (30) days after the Lease Commencement Date set
forth above, either party may terminate this Lease by written notice to the
other as provided herein, and such termination shall be effective upon
rendition of said notice.
3. Minimum Annual Rent.
The minimum annual rent ("Minimum Annual Rent") payable by Lessee
to Lessor shall be Ninety-Six Thousand Two Hundred Fifty and 00/100 Dollars
($96,250.00) per year, lawful money of the United States of America, payable
in monthly installments in advance during the said term of this Lease in
sums of Eight Thousand Twenty and 83/100 Dollars ($8,020.83) on the first
day of each month, rent to begin from the Lease Commencement Date, the first
installment to be paid on or before the Lease Commencement Date, subject to
the requirements of subparagraph 2 (C), supra. The first installment of
Minimum Annual Rent to be made during the occupancy of the Premises shall be
adjusted to pro rate a partial month of occupancy, if any, at the inception
of this Lease at the rate of Minimum Annual Rent in effect during the first
Lease Year, i.e., the period of twelve (12) calendar months following the
Lease Commencement Date. If the date of commencement of the term of this
Lease shall be a day other than the first day of the calendar month, then
the term of this Lease shall be deemed extended by the number of days
between the Lease Commencement Date and the last day of said month, so that
the term of this Lease shall expire five (5) years after such first day of
the first calendar month following the Lease Commencement Date, unless
extended or previously terminated, as herein set forth.
4. Additional Rent.
As Additional Rent ("Additional Rent") hereunder, Lessee shall pay
Lessor the following on or before the date such additional payment shall
become due, but not later than ten (10)n business days from rendition of a
bill therefor (unless otherwise set forth herein):
A. All "Taxes" (as hereinafter defined) assessed or imposed
upon the Premises during the term of this Lease and any extension or renewal
term or applicable to the Premises during' the term of this Lease. The
amount due hereunder oh account of such Taxes shall be apportioned for that
part of the first and last calendar years covered by the original, renewal
or extension term hereof as regards county and township real estate taxes
and for that part of the first and last July 1st fiscal years covered by
the original, renewal or extension term hereof regarding school real estate
taxes. At the time of execution of this Lease, Lessee shall pay Lessor the
pro rated portion of school real estate taxes on the Premises for the
fiscal year commencing July 1, 2000. Lessor shall promptly forward to Lessee
all bills received by Lessor for such Taxes and the amount of such Taxes
shall be paid by Lessee to Lessor at least Fifteen (15) days before the
expiration of the net payment period for said Taxes and before penalties
are assessed. In the event Lessee desires to take advantage of any
nonobligatory early payment discount, said tax payment shall be paid by
Lessee to Lessor at least one (1) month before the expiration of any
discount period. A bill submitted by Lessor to Lessee, accompanied by a true
and correct copy of a bill for Taxes, shall be conclusive evidence of the
amount of Taxes assessed or levied as well as the items taxed.
"Taxes" as utilized in this Lease shall mean all taxes,
assessments and charges of whatsoever nature levied upon or with respect to
the Premises or Lessor's ownership interest in the Premises. "Taxes" shall
include, without limitation, all general real property taxes and general and
special assessments, charges, fees, or assessments for transit, housing,
police, fire or other governmental services or purported benefits inuring to
the Premises, service payments in lieu of taxes, and any tax, fee or excise
on the act of entering into and/or maintaining this Lease or any other lease
of space on the Premises, or the use or occupancy of the Premises or any
part thereof, or on the rent payable under any lease or in connection with
the business of leasing the Premises, including, but not limited to,
business privilege taxes that have been, or are now, or hereafter levied or
assessed against Lessor by the United States of America, the Commonwealth
of Pennsylvania or any political subdivision, political corporation,
district or other political or public entity, whether quasi in nature or
otherwise, but not including any federal or state income tax levied solely
on Lessor's income generally. "Taxes" does not include transfer taxes of
any nature whatsoever arising from the purchase, sale or lease of any real
property.
Lessee at all times shall be responsible for and shall pay before
delinquency, all municipal, county, state or federal taxes assessed against
any leasehold interest or any personal property of any kind, owned,
installed or used by Lessee.
Lessee, at its sole cost and expense, and after having given
twenty (20) days prior written notice to Lessor, may contest by appropriate
legal proceedings, promptly instituted and thereafter conducted in good
faith with due diligence, the amount or validity, in whole or in part of
any Taxes; provided, however, Lessee shall have at the time of giving notice
to Lessor, contemporaneously deposited with Lessor such financial security,
by certified funds or an irrevocable letter of credit, for payment of the
contested Taxes, said amount deposited with Lessor to equal one hundred
twenty percent (120%) of the total contested Taxes, including interest and
penalties, or other security as may reasonably be required by Lessor.
B. All sums which may become due by reason of the failure of
Lessee to comply with any of the terms, covenants and conditions of this
Lease to be kept and observed by Lessee, and any and all damages and costs
and expenses (including without limitation thereto, reasonable attorney's
fees) which Lessor may suffer or incur by reason of any default of Lessee
and any damages to the Premises caused by any act or omission of Lessee
together with interest to the date of payment at a rate per annum equal to
five hundred (500) basis points above the prime interest rate (Prime + 5%)
of First Union National Bank, Philadelphia, Pennsylvania, or its successor,
in effect during the period said payment is due.
C. The premiums for insuring the Premises, including
alterations, additions and improvements other than Lessee's fixtures and
equipment against loss or damage by fire, all extended coverage, and rental
value insurance (covering twelve (12) months' rental on a fully gross basis)
for the full, fair and insurable value thereof, exclusive of foundations,
excavations, and pavement, and insuring Lessor against liability for bodily
injury (including death), personal injury and property damage. The premiums
shall be pro-rated for such portion of the term of the Lease that is
included within any period in which an insurance policy is in effect.
D. Upon the written request of Lessor's mortgagee,(other than
the existing mortgage) Lessee will pay to Lessor, together with each monthly
installment of Minimum Annual Rent, an amount equal to one-twelfth of the
aggregate annual' amount of (i) the taxes referred to in subparagraph A
hereof and (ii) the insurance premiums referred to in subparagraph C hereof,
all as estimated by Lessor; such amounts shall be held in escrow by Lessor
or transmitted to any Mortgagee requiring such payments and applied on
account of the taxes and insurance premiums as and when payments therefor
are due. Without limitation of the foregoing, Lessee shall also pay to
Lessor such additional amounts as Lessor's Mortgagee may request from time
to time to provide a sufficient fund, at least thirty (30) days prior to the
due date (or, in the case of any tax which may be paid in installments, the
due date of the next installment thereof) for payment of such taxes and
premiums. Any amounts held in escrow by Lessor pursuant to this paragraph
may be deposited in a non-interest bearing account. Lessor may apply such
deposit against any arrearages by Lessee in the payment of Minimum Annual
Rent and/or Additional Rent. In the event Lessor assigns its interest in
this Lease, Lessor shall have the right to pay the balance of such amounts
then in its possession to the assignee, and Lessor shall thereupon be
completely released from any liability with respect to such amounts.
E. Intentionally Deleted by the Parties
F. In the event Lessee requests any consents or approvals of
Lessor and Lessor is reasonably obliged to expend counsel fees and costs by
reason thereof, Lessee will reimburse Lessor for the reasonable counsel fees
and costs incurred, as Additional Rent, within ten (10) days of submission
of bills therefor.
G. If Lessee does not pay any installment of Minimum Annual
Rent or any item of Additional Rent on the day when the same shall become
due and payable, and such failure shall continue for a period of ten (10)
days, Lessee shall pay Lessor as Additional Rent a service charge at the
rate of One and One-Half Percent (1-1/2%) per month (or such lesser charge
as may be the legal maximum for a debtor of the same nature and character as
Lessee in the jurisdiction which the Premises is located) on the amount of
such installment of Minimum Annual Rent or item of Additional Rent or all of
the same for each month or a portion of a month that the same shall remain
unpaid; provided, however, that such charge shall in no event be less than
Twenty-Five Dollars ($25.00) for any month or a portion of a month that any
installment of Minimum Annual Rent or item of Additional Rent shall remain
unpaid. Such charge shall be in the form of Additional Rent for the purposes
of defraying administrative expenses of Lessor and is not intended as a
penalty against Lessee. The provision of this paragraph shall not preclude
Lessor from exercising its options as set forth in any other sections of
this Lease, or as provided by law.
5. Utilities.
Lessee shall heat the Premises at its own expense and shall also
pay all charges of utility companies or public authorities for electricity,
gas, telephone, water, steam, sewer service or other services or utilities
furnished to the Premises. Under no circumstances shall Lessor be required
to furnish or be responsible for the furnishing of or the failure of any
utility companies or public authorities to furnish any utilities or any
other service of any kind to the Premises or any part thereof.
6. Repairs.
A. Except as otherwise set forth herein, Lessee shall be
responsible for all maintenance to the Premises and at Lessee's sole
expense, shall make all necessary or appropriate repairs, replacements
(except for the air conditioning components [but not any heating component]
of warehouse air-conditioning units), renewals, and additions, interior and
exterior, structural (not arising from the act or neglect of Lessee, its
agents, servants, and business visitors) and non-structural, ordinary and
extraordinary, foreseen and unforeseen, required to keep and maintain the
Premises and all Systems (as hereinafter defined), equipment and apparatus
appurtenant thereto or used in connection therewith in good order and
condition including but not limited to lawn and shrub trimming, cutting and
maintenance, and parking lot and driveway repair, replacement, maintenance,
cleaning and snow and ice removal. Lessor shall be responsible only for
maintenance to the roof and structural (defined as "load bearing elements
and the exterior surface of exterior curtain walls") portions of the
Building, not arising from the act or neglect of Lessee, its agents;
servants, and business visitors; in accordance with the provisions of
subparagraph B hereof. Pertaining to Lessee's responsibility to maintain the
heating, air-conditioning, plumbing, electrical and sprinkler systems of the
Premises ("Systems"), in addition to all required repairs and replacements,
Lessee agrees that it shall, to the extent generally available, at its cost
and expense, enter into a service contract or contracts with responsible
service companies providing for at least two (2) semi-annual periodic
inspections, and complete maintenance of all air-conditioning units, only
including all necessary parts and labor, commencing upon the Lease
Commencement Date, which contract or contracts shall continue during the
term of this Lease and any renewal thereof and will be subject to the
approval of Lessor, which Lessor agrees not to unreasonably withhold. A copy
of said service contract shall be deposited with Lessor prior to the Lease
Commencement Date and said contract must provide for at least fifteen (15)
days' notice to Lessor prior to cancellation thereof. True and correct
copies of all inspection reports received from the service contractor shall
be furnished to Lessor no later than ten (10) days after receipt of same.
B. Upon receipt of written notice from Lessee, Lessor agrees
to proceed with due diligence to repair at its own cost and expense, any
leaks in the roof, or make any repairs to the structural portions of the
Building, provided such repairs are not necessitated by any act or neglect
on the part of Lessee, its agents, servants or business visitors. In no
event, however, shall Lessor be liable to Lessee for damages, including
consequential damages, for any loss or damage sustained by Lessee due to,
or alleged to be due to, failure to make such repairs in a timely or proper
manner. In the event Lessor fails to make said repairs within a reasonable
time and in a proper manner, after notice by Lessee, Lessee may proceed to
effect said repairs and Lessor shall repay Lessee the reasonable costs of
said repairs, together with interest to the date of payment at a rate per
annum equal to five hundred (500) basis points above the prime interest rate
(Prime + 5%) of First Union National Bank, Philadelphia, Pennsylvania, or
its successor, in effect during the period said payment is due, but Lessee
may not set off the amount of such costs against any rent due to Lessor
pursuant to the terms of this Lease. Provided, however, that within ten (10)
days of receipt of any such bill for repairs, Lessor may submit the
questions of the reasonableness of said bills and/or Lessor's responsibility
to pay for same to arbitration before the American Arbitration Association
in Philadelphia, Pennsylvania, and in accordance with the rules and
regulations of the American Arbitration Association in Philadelphia,
Pennsylvania. The decision of the arbitrators shall be final and binding
upon the parties and shall be unappealable. The cost of arbitration, as well
as the reasonable counsel fees and costs of the prevailing party shall be
borne by the non-prevailing party.
C. Any repairs, replacements, renewals and additions, and any
labor performed or materials furnished in, on or about the Premises shall be
performed and furnished by Lessee and/or Lessor, as the case may be, in
strict compliance with all applicable laws, regulations, ordinances and
requirements of all duly constituted municipal authorities or other
governmental bodies having jurisdiction over the Premises and the
requirements of any board of underwriters having jurisdiction thereof.
7. Insurance.
A. Liability.
Lessee shall provide and keep in force at its own cost and
expense:
(i) Commercial General Liability Insurance, including
Personal Injury, Bodily Injury Including Death, and Property Damage covering
premises liability, independent contractors liability, and contractual
liability, with minimum limits of coverage of One Million Dollars
($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000.00)
aggregate applicable to the Premises only.
(ii) Worker's Compensation Insurance in the full
statutory amount.
(iii) All policies carried hereunder, providing liability
coverage, will include Lessor as an additional named insured with respect to
ownership of the Premises.
B. Lessee's Personal Property. Lessee shall keep its personal
property and trade fixtures in the Premises insured with "all risks"
insurance in an amount to cover 100% of the replacement cost of the property
and fixtures.
C. Insurance policies required by this Lease shall:
(i) Be issued by insurance companies licensed to do
business in the State of Pennsylvania, with general policyholder's ratings
of at least A and a financial rating of at least XI in the most current
Best's Insurance Reports available on the date of issuance. If the Best's
ratings are changed or discontinued, the parties shall agree to an
equivalent method of rating insurance companies;
(ii) Provide that the insurance not be cancelled or
materially changed in scope or amount of coverage unless thirty (30) days
advance notice is given to the Lessor;
(iii) Be primary policies -- not contributing with, or in
excess of the coverage that the Lessor may carry;
(iv) Be permitted to be carried under a "blanket policy".
However, a specific minimum limit must be listed which is applicable to the
Premises and acceptable to the Lessor.
(v) Be maintained during the entire term and any
extension or renewal term of this Lease.
D. By the Lease Commencement Date and prior to Lessee entering
possession of the Premises, and upon each renewal of its insurance policies,
Lessee shall provide certificates of insurance to Lessor by notice
hereunder. The certificates shall specify amounts, types of coverage, the
waiver of subrogation, specified in Paragraph 16 hereof, and the insurance
criteria listed in this paragraph 7. The policies shall be renewed or
replaced and maintained by Lessee. If Lessee fails to give any required
certificate within the time provided herein, Lessor may obtain and pay for
that insurance and receive reimbursement from, Lessee as Additional Rent,
any other provision of this Lease notwithstanding.
8. Destruction of Premises.
A. Total Destruction of Building. In the event the Building is
totally destroyed or so damaged by fire or other casualty covered by a
policy or policies of insurance maintained by Lessor that the same cannot be
repaired and restored within ninety (90) days from the happening of such
injury, the current term of this Lease shall absolutely cease and terminate
and the Minimum Annual Rent and Additional Rent shall abate for the balance
of the term, with reimbursement to Lessee of prepaid Minimum Annual Rent and
Additional Rent. Nothing contained herein shall be construed to affect
Lessor's right to collect the proceeds of rental value insurance on the
Building.
B. Partial Destruction of Building. If the damage be only
partial and such that the Building can be restored, to approximately its
former condition within ninety (90) days from the date of the casualty loss,
Lessor shall restore the same with reasonable promptness, reserving the
right to enter upon the Premises for that purpose. Lessor also reserves the
right to enter upon the Premises whenever necessary to repair damage caused
by fire or other casualty to the building of which the Premises is a part if
the building is a multi-tenant building, even though the affect of such
entry be to render the Premises or part thereof untenantable. The rent shall
be apportioned and suspended during the term that any portion of the
Premises is untenantable (i.e., not fit for Lessee's reasonable business
use), taking into account the ratio of the untenantable portion to the total
Premises and the duration of such untenantability. Nothing contained herein
shall affect or limit Lessor's right to collect the proceeds of any rental
value insurance on the Premises.
C. Intentionally Deleted by the Parties
D. Lessor shall not be liable for any damage, compensation or
claim by reason of the necessity of repairing any portion of the Premises,
the interruption of the use of the Premises, any inconvenience or annoyance
arising as a result of such repairs or interruption or the termination of
this Lease by reason of damage or destruction of the Premises or any part
thereof, unless caused by the negligence or fault of Lessor, its agents,
servants, employees and/or contractors.
9. Condemnation.
A. Total Condemnation. In the event the entire Premises is
taken or condemned by any public or quasi-public authority exercising the
right of eminent domain, the term of this Lease shall terminate as of the
date the condemning authority takes possession of the Premises, with the
same force and effect as though such date were the date fixed herein for
expiration of the term. The entire amount of any award for such taking shall
belong to the Lessor, except for moving, business interruption expenses, and
damages to Lessee's personal property, if any, awarded directly to Lessee
and Lessee hereby waives any other right it may have to any portion of such
award.
B. Partial Condemnation. In the event that a portion of the
Premises, but not the entire Premises is taken or condemned for a public or
quasi-public use, the Minimum Annual Rent herein shall abate equitably in
proportion to the area of the building on the Premises condemned as of the
date on which the condemning authority shall take possession of the
condemned property. Provided, however, that if the condemnation was so
extensive that the Premises is not suitable for Lessee's use as set forth
herein, the taking shall be considered a total taking and subparagraph A
above will apply. The entire amount of any award for such taking shall
belong to Lessor except for moving, business interruption expenses and
damages to Lessee's personal property, if any, awarded directly to Lessee
and Lessee hereby waives any other right it may have to any portion of such
award. If the parties are unable to agree as to whether any taking is so
substantial as to constitute a total taking for the purposes of this Lease,
or as to the amount of abatement of rent after a partial taking, the matter
shall be submitted to arbitration in Philadelphia, Pennsylvania, in
accordance with the rules of the American Arbitration Association then in
force and the decision of the arbitrators shall be final and binding on both
parties.
10. Use and Compliance with Regulations.
A. Lessee hereby covenants and agrees that it will at no time
use the Premises for any other use or purpose than lawful purposes. Lessee
further agrees that it will at no time use the Premises in any manner which
may be deemed a violation of any municipal (including but not limited to
township authorities, regulatory agencies and water and sewer authorities),
state or federal law, rules, regulations or requirements. Lessee shall
comply at its sole cost and expense with any and all municipal, state and
federal rules, regulations, requirements or laws, including additional
installations which may be required, covering Lessee's specific use and
occupancy of the Premises; Lessor shall comply, at its sole cost and expense
with any and all municipal, state and federal rules, 'regulations,
requirements or laws, and/or additional installations covering buildings and
property generally, without regard to Lessee's specific use and occupancy
thereof.' Lessor represents and warrants that the applicable zoning
ordinances permit Lessee's intended use of the Premises as specified in
Paragraph 1(C) hereof. The applicable use and occupancy regulations of
Montgomery Township, Montgomery County, Pennsylvania, require a tenant to be
in possession of its space and set up for operation before making
application for a certificate of occupancy ("CO") and the necessary township
inspection. Accordingly, Lessee shall take possession of the Premises, set
up its operation and promptly thereafter, make application to Code
Enforcement Officer of Montgomery Township for a CO for the Premises and
obtain any required CO. Lessee shall provide Lessor with a true and correct
copy of its CO promptly after issuance, by notice hereunder. In the event
issuance of a CO is withheld by reason of any condition of the Premises not
related to Lessee's specific use and occupancy, Lessor, at its sole cost and
expense, shall promptly use its best efforts to rectify this condition and
otherwise will cooperate with Lessee and render reasonable assistance to
Lessee for issuance of the CO. Lessee hereby agrees to protect, indemnify
and save Lessor harmless from and against any and all loss, damage, expense,
cause of action, suits, demands, judgments and claims of any nature
whatsoever arising as a result of Lessee's breach' of the covenants
Contained in this paragraph, in addition to any other indemnification
provisions set forth in this Lease. Lessee shall deposit no process wastes
into the sanitary sewer system serving the Premises and agrees that only
sanitary waste shall be inserted into the sanitary sewer system. Two (2)
EDU(s) of sanitary sewer capacity has been allocated to the Premises and
Lessee shall not exceed said allocation.
B. As used herein, "Hazardous Substance" means any substance
which is toxic, ignitable, reactive or corrosive and which is regulated by
any local government, the State of Pennsylvania or the United States
Government. Hazardous Substance includes any and all materials or substances
which are defined as 'hazardous waste', 'extremely hazardous waste' or
'hazardous substance' pursuant to state, federal or local governmental laws
or regulations. "Hazardous Substance" includes, but is not restricted to
asbestos, polychlorinated biphenyls (PCBs) and petroleum. Lessee shall not
cause or permit any Hazardous Substance to be used, stored, generated or
disposed of on or in the Premises by Lessee, Lessee's agents, employees,
contractors or invitees, (except small quantities in sealed containers used
in the ordinary course of Lessee's business) without first obtaining
Lessor's written consent, which may be withheld or delayed at Lessor's sole
and absolute discretion. If Hazardous Substances are. used, stored,
generated or disposed of on or in the Premises or if the Premises become
contaminated in any manner for which Lessee is legally liable, Lessee shall
indemnify, defend and hold harmless the Lessor from any and all claims,
damages, fines, judgments, penalties, costs, liabilities or losses
(including without limitation, a decrease in value of the Premises or the
Building or the Lot, damages because of adverse impact on marketing of the
Premises and any and all sums paid for settlement of claims, attorneys',
consultant and expert fees) arising during or after the term hereof and
arising as a result of such contamination by Lessee. This indemnification
includes, without limitation, any and all costs incurred because of any
investigation of the Lot or any clean-up, removal or restoration mandated by
a federal, state or local agency or political subdivision. In addition, if
Lessee causes or permits the presence of any Hazardous Substance on the
Premises and this results in contamination, Lessee shall promptly, at its
sole expense, take any and all necessary actions to return the Premises to
the condition existing before the presence of any such Hazardous Substance
on the Premises, provided, however, that Lessee shall first obtain Lessor's
approval for any such remedial action. Within ten (10) days after receipt,
Lessor and Lessee shall advise the other party in writing and provide the
other party with copies of (as applicable), any notices alleging violation
of any law or regulation relating to any Hazardous Substance upon any
portion of the Premises, the Building or the Lot; any claims made or
threatened in writing regarding noncompliance with any law or regulation
involving the presence of any Hazardous Substance on any portion of the
Premises, the Building or the Lot; or any governmental or regulatory actions
or investigations instituted or threatened regarding non-compliance with any
law or regulation involving any Hazardous Substance upon any portion of the
Premises, the Building or the Lot.
C. Within ten (10) days after receipt, Lessor and Lessee shall
advise the other party in writing and provide the other with copies of (as
applicable), any notices alleging violation of the Americans with
Disabilities Act of 1990 ("ADA") relating to any portion of the Premises,
the Building or the Lot; any claims made or threatened in writing regarding
non-compliance with the ADA and relating to any portion of the Premises, the
Building or the Lot; or any governmental or regulatory actions or
investigations instituted or threatened regarding non-compliance with the
ADA and relating to any portion of the Premises, the Building or the Lot.
Lessor's Work shall comply with ADA requirements in effect on the Effective
Date.
10.1 Lessor's Environmental Representation
A. Lessor warrants and represents that to the best of its
knowledge information, and belief, no Hazardous Substances exist upon the
Premises, as of the Effective Date.
B. Lessor shall reimburse Lessee for all out of pocket costs
incurred by Lessee as a result of a breach of Lessor's environmental
warranty and representation set forth in Subparagraph A.
11. Indemnification.
A. The Lessee shall keep, save and hold harmless the Lessor
from any and all damages and liability for anything and everything
whatsoever arising from or out of the occupancy of the Premises and abutting
common areas by or under the Lessee, the Lessee's agents, servants, or
business visitors, and from any loss or damage arising from any fault or
negligence by the Lessee or any failure on the Lessee's part to comply with
any of the covenants, terms and conditions contained in this Lease.
Provided, however, that Lessee's obligations hereunder shall be pro-ratably
reduced to the extent that a particular claim, liability, expense, loss,
damage, demand, fine or cause of action is a result of Lessor's gross
negligence or wilful misconduct.
B. Notwithstanding anything set forth herein to the' contrary,
in the event Lessor is held liable to an employee of Lessee (either an
actual employee or one deemed to be an employee by operation of law) on
account of work-related injuries sustained by such employee on the Premises,
Lessee shall be liable to Lessor for damages, contribution and indemnity in
any action at law or otherwise. This subparagraph 11(B) shall constitute "a
written contract" between Lessor and Lessee pursuant to Section 303(b) of
the Workmen's Compensation Act, 77 P.S. Section 481(b).
12. Mechanic's Liens.
Lessee shall not permit any mechanic's, materialmen's or similar
liens to remain upon the Premises for labor or material furnished to Lessee
or claimed to have been furnished to Lessee in connection with work of any
character performed or claimed to have been performed on the Premises by, or
at the direction of, or with the consent of Lessee, whether such work was
performed or materials furnished before or after the commencement of the
term of this Lease. Lessee may, however, contest the validity of any such
lien or claim, provided Lessee shall give Lessor such reasonable security to
insure payment and to prevent any sale, foreclosure or forfeiture of the
Premises by reason of such non-payment as Lessor may require. Upon final
determination of the validity of any such lien or claim, Lessee shall
immediately pay any judgment or decree rendered against Lessee or Lessor
with all proper costs and charges and shall cause such lien to be released
of record without cost to Lessor.
13. Subordination.
A. This Lease shall be subordinate in all respects to the lien
of any mortgage now or hereafter encumbering the Premises or any part
thereof, with the same force and effect as if such mortgage had been
executed, acknowledged, delivered and recorded prior to the execution of
this Lease. The subordination contained in this Paragraph 13 is and shall be
effective without the necessity of any further act or writing by either
party hereto, but Lessee agrees that it will, immediately upon Lessor's
request, and at no additional charge to Lessor, deliver such additional
documents as any mortgagee may require to confirm such subordination.
Lessee, at the request of any mortgagee or any one acquiring title to
Lessor's estate or the Premises by foreclosure, deed in lieu of foreclosure
or otherwise, shall attorn to the then owner and recognize such owner as
Lessor for the balance of the term of this Lease, subject to all of the
terms and provisions hereof. Such mortgagee or purchaser at said foreclosure
sale shall not be:
(1) Liable for any act or omission of Lessor;
(2) Subject to any offsets or defenses which Lessee may have
against the Lessor;
(3) Bound by any rent or Minimum Annual Rent which the Lessee
may have paid to the Lessor for more than the current month; or
(4) Bound by any amendment or modification of the Lease made,
without its consent.
B. At Lessee's request, by notice hereunder, Lessor shall
obtain a Subordination, Non-Disturbance and Attornment Agreement from
Lessor's mortgagee. Any fee charged for this agreement by the mortgagee
shall be paid by Lessee as Additional Rent.
14. Estoppel Certificate.
Lessee agrees to execute and deliver to any mortgagee or purchaser
of the Premises immediately upon request, and at no additional charge to
Lessor, an "Estoppel Certificate" stating the amount of rent due from Lessee
hereunder, that this Lease remains in full force and effect without
modification, any reasonable representations requested by said mortgagee or
purchaser, and that Lessee has no setoffs against rent; or if this Lease has
been modified, or if Lessee has any setoffs against rent, the exact nature
of the modification and the precise amount of the setoffs.
15. Assignment and Subletting.
Lessee may assign this Lease in whole or in part and sublet all or
a portion of the herein demised Premises providing the business of the
assignee or sublessee shall be no more hazardous than that of Lessee's
present business and shall comply with the zoning and all other governmental
regulations and regulations of insurance underwriters, and provided further
that Lessee shall obtain prior written approval from Lessor which shall not
be unreasonably withheld or delayed; provided, that Lessor may specifically
withhold consent if the proposed assignee's or sublessee's projected use of
the Premises involves the use, storage, generation or disposal of Hazardous
Substances, as defined in subparagraph 10(B) of this Lease. However, Lessee
shall not be relieved of any liability or responsibility under the terms of
this Lease by reason of such assignment or subletting.
An assignment of this Lease shall be deemed to have occurred if in
a single transaction or a related or unrelated series of transactions, and
whether Lessee is a corporation, partnership or other entity, more than
fifty percent (50%) or more of the ownership interests in Lessee (whether
shares, partnership interests, membership interests or other equity, and
whether one or more classes thereof) are transferred, diluted, reduced, or
otherwise affected with the result that the owners or holders on the date of
this Lease of the ownership interests in each class of equity of Lessee
together cease to own fifty percent (50%) or more of such equity. This
section shall not apply to sale of shares of stock on the NASDAQ National
Listings or the New York or American Stock Exchanges.
16. Waiver of Subrogation.
Lessor and Lessee hereby release each other and otherwise waive
any claim that each may have against the other for damage to property which
and to the extent such damage is covered by property insurance maintained by
such party and further agree that all insurance policies which each of them
shall carry to insure the Premises and the contents therein against casualty
loss shall contain waivers of the right of subrogation against Lessor and
Lessee herein, their heirs, administrators, successors and assigns.
17. Security Deposit.
Lessee shall have deposited with Lessor upon execution hereof, the
sum of ($16,041.66) SIXTEEN THOUSAND FORTY ONE DOLLARS AND SIXTY SIX CENTS
as security for Lessee's faithful performance of Lessee's obligations
hereunder. If Lessee fails to pay rent or other charges due hereunder, or
otherwise defaults with respect to any provision of this Lease, Lessor may
use, apply or retain all or any portion of said security deposit for the
payment of any rent or other charge in default or for the payment of other
sums to which Lessor may become obligated by reason of Lessee's default, or
to compensate Lessor for any loss or damage which Lessor may suffer thereby.
If Lessor so uses or applies all or any portion of said deposit, Lessee
shall within ten (10) days after written demand thereof, deposit funds with
Lessor, by good check, in an amount sufficient to restore said deposit to
the full amount hereinabove stated and Lessee's failure to do so shall be a
material breach of this Lease. If Lessee is in default under this Lease more
two (2) times within any twelve (12) month period, irrespective of whether
or not such default is cured, then, without limiting Lessor's other rights
and remedies provided for in this Lease or at law or equity, or both, the
Lessee, within ten (10) days of notice from Lessor, shall deposit with
Lessor such amount as is necessary to increase the deposit held by Lessor
to two (2) times the amount held at the time of said notice. Lessor shall be
required to keep said deposit separate from its general accounts, in an
interest bearing account. If Lessee performs all of Lessee's obligations
hereunder, said deposit, or so much thereof as had not theretofore been
applied by Lessor, shall be returned to Lessee with interest earned thereon
(or at Lessor's option, to the last assignee, if any, of Lessee's interest
hereunder) at the expiration of the term hereof, and after Lessee has
vacated the Premises. No trust relationship is granted herein between Lessor
and Lessee with respect to said security deposit.
18. Inspection - Access.
A. Lessor may, at all reasonable times, by itself or its duly
authorized agents, go upon and inspect the Premises and every part thereof
and/or at its option to make repairs, alterations and additions to the
Premises or the building of which the Premises is a part, without materially
interfering with the operation of Lessee's business. Provided, however, that
Lessor agrees that it will not enter upon the Premises for repairs except
during business hours, without the consent of Lessee, unless said repairs
are of an emergency nature.
19. Right of Assignee.
All rights granted to Lessor hereunder may be exercised by any
assignee of Lessor's right, title and interest in this Lease in his, her or
their name, any statute, rule of court, custom or practice to the contrary
notwithstanding. In addition, upon such assignment, Lessor may pay over any
security deposit hereunder to said assignee and upon said payment, all
obligations of Lessor to Lessee pertaining to said security deposit shall
terminate. In addition, upon assignment of Lessor's interest herein to an
assignee which assumes, in writing, Lessor's obligations hereunder, any
obligations of Lessor hereunder shall cease and terminate and said Assignee
shall be responsible therefor to Lessee.
20. Restrictions on Floor and Wall Loads.
Lessee shall not place a load on any floor or wall of the Premises
which is greater than the floor load per square foot or wall load per square
foot respectively which such floor or wall respectively was designed to bear
and which is permitted by law.
21. Signs.
Lessee may erect reasonable signs which will hot damage or injure
in any way the roof or structural portions of the Premises, or any buildings
on the Premises and will not materially detract from the appearance of the
Premises and surrounding environments, having first obtained Lessor's
permission, said permission to not be unreasonably withheld. Lessee shall
conform, at its sole cost and expense, with all governmental rules and
regulations, with respect to Lessee's sign, and will save Lessor harmless
from any mechanic's lien claim or claims for personal injury or property
damage arising from the erection, provision, installation or maintenance and
removal of said sign. At the termination of this Lease, Lessee shall remove
all signs and shall restore the Premises to its original good condition, at
Lessee's sole cost and expense.
22. Quiet Enjoyment.
Notwithstanding anything herein contained to the contrary,
Lessee's possession and quiet enjoyment of the. Premises will not be
interfered with by Lessor or any person claiming by, through or under Lessor
or by any predecessor of Lessor so long as Lessee complies with the terms of
this Lease and is not in default hereunder.
23. Events of Default - Remedies.
A. Subject to the grace and cure periods set forth in
subparagraph 23(P),infra, the following events or any one or more of them
shall be events of default under this Lease:
(i) Lessee shall fail to pay any Minimum Annual Rent,
Additional Rent or other sums payable hereunder when the same are due and
payable; or
(ii) Lessee shall fail to perform or comply with any of
the other terms, covenants, agreements or conditions hereof; or
(iii) Lessee shall make a general assignment for the
benefit of creditors or shall admit in writing its inability to pay its
debts as they become due, or shall file a petition in bankruptcy or shall
be adjudged a bankrupt or insolvent, or shall file a petition seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law or
regulation, or shall file an answer admitting or not, contesting the
material allegations of a petition against it in any such proceeding, or
shall seek or consent to or acquiesce in the appointment of any trustee,
receiver or liquidator of Lessee or any material part of its property; or
(iv) If within sixty (60) days after commencement of any
proceedings against Lessee seeking any reorganization, arrangement,
composition, readjustment, liquidation or dissolution or similar relief
under any present or future statute, law or regulation, such proceedings
shall not have been dismissed or, if, within sixty (60) days after the
appointment without the consent or acquiescence of Lessee of any trustee,
receiver or liquidator of Lessee or any material part of its properties,
such appointment shall not have been vacated
(v) Lessee shall vacate the Premises in violation of
Paragraph 28 hereof.
B. In the event of any such event of default (regardless of
the pendency of any proceeding which has or might have the effect of
preventing Lessee from complying with 'the terms of this Lease) Lessor at
any time thereafter may exercise any one' or more of the following remedies:
(i) Intentionally Deleted by the Parties
(ii) Termination of Lease. Lessor may terminate this
Lease without any right by Lessee to reinstate its rights by payment of rent
due or other performance of the terms and conditions hereof. Upon such
termination, Lessee shall immediately surrender possession of the Premises
to Lessor and Lessor shall immediately become entitled to receive from
Lessee damages equal to the difference between the aggregate rentals
reserved for the balance of the term and the fair rental value of the
Premises for that period, determined as of the date of such termination;
provided, however, that the amount of such damages shall be discounted at
the rate of Five Percent (5%) per annum for the period from the date of
payment by Lessee to Lessor to the date of expiration of the term of this
Lease.
(iii) Reletting. With or without terminating this Lease,
as Lessor may elect, Lessor may re-enter and repossess the Premises or any
part thereof, and lease them to any other person upon such terms as Lessor
shall deem reasonable for a term within or beyond the term of this Lease;
provided, however, that any such reletting prior to termination shall be for
the account of Lessee, and Lessee shall remain liable for:
(1) All Minimum Annual Rent, Additional Rent and
other sums which would be payable under this Lease by Lessee in the absence
of such expiration, termination or repossession, less
(2) The net proceeds, if any, of any reletting
effective for the account of Lessee after deducting from such proceeds
without limitation, all repossession costs, broker's commissions, attorneys'
commissions, attorneys' fees and expenses, employees' expenses, reasonable
alteration costs and expenses of preparation for such reletting.
If the Premises are at the time of default sublet or
leased by Lessee to others, Lessor may, as Lessee's agent, collect rents due
from any subtenant or other tenant and apply such rents to the rent and
other obligations due hereunder without in any way affecting Lessee's
obligations to Lessor hereunder. Such agency, being given for security, is
hereby declared to be irrevocable.
(iv) Acceleration of Rent. Lessor may declare rent and
all items of Additional Rent for the entire balance of the then current term
immediately due and payable, together with all other charges, payments,
costs and expenses payable by Lessee as though such amounts were payable in
advance on the date of the event of default occurred.
C. No expiration or termination of this Lease term pursuant to
subparagraph (B)(ii) above or by operation of law or otherwise (except as
expressly provided herein), and no repossession of the Premises or any part
thereof or exclusion of Lessee from the Premises pursuant to subparagraph B
above or otherwise shall relieve Lessee of its liabilities and obligations
hereunder, all of which shall survive such exclusion, expiration,
termination or repossession and Lessor may, at its option, sue for and
collect rent and other charges due hereunder at any time and from time to
time as and when such charges accrue.
D. With respect to any portion, of the Premises which is
vacant or which is physically occupied by Lessee, Lessor may remove all
persons and property therefrom and store such property in a public warehouse
or elsewhere at the cost of and for the account of Lessee, without service
of notice or resort to legal process (all of which Lessee expressly waives)
and without being deemed guilty of trespass or becoming liable for any loss
or damage which may be occasioned thereby. Lessor shall have a lien for the
payment of all sums agreed to be paid by Lessee herein upon all Lessee's
property, which lien is to be in addition to any landlord's lien now or
hereafter provided by law.
E. Intentionally Deleted by the Parties
F. Intentionally Deleted by the Parties
G. In the event of breach or anticipatory breach by Lessee of
any provision of this Lease, Lessor shall have the right of injunction as if
other remedies were not provided for herein.
H. No right or remedy herein conferred upon or reserved to
Lessor is intended to be exclusive of any other right or remedy herein or by
law provided, but each shall be cumulative and in addition to every other
right or remedy given herein or now or hereafter existing at law or in
equity or by statute.
I. If Lessee shall default in the performance of any covenant
required to be performed by it under this Lease, Lessor may perform the same
for the account and at the expense of Lessee, after first giving notice to
Lessee of its intention to do so. If Lessor at any time is compelled to pay
or elects to pay, any sum of money or to do any act which will require the
payment of any sum of money by reason of the failure of Lessee to comply
with any provisions hereof, or if Lessor is compelled to incur any expense,
including reasonable counsel fees, in instituting, prosecuting or defending
against any action or proceedings instituted by reason of any default of
Lessee hereunder, the amount of such payments or expenses shall be paid by
Lessee to Lessor as Additional Rent on the next day following such payment
or the incurring of such expenses upon which a regular monthly rental is
due, together with interest thereon at the rate set forth herein.
J. No waiver by Lessor of any breach by Lessee of any of its
obligations, agreements or covenants hereunder shall be a waiver of any
subsequent breach or of any other obligation, agreement or covenant, nor
shall any forbearance by Lessor to seek a remedy for any breach by Lessee be
a waiver by Lessor of its rights and remedies with respect to such or any
subsequent breach.
K. Intentionally deleted by the Parties
THE FOLLOWING PARAGRAPH 23(M) SETS FORTH A WARRANT OF ATTORNEY FOR
ANY PROTHONOTAR Y OR ATTORNEY OF COURT OF RECORD TO CONFESS JUDGMENT AGAINST
THE LESSEE. IN GRANTING THIS WARRANT OF ATTORNEY TO CONFESS JUDGMENT AGAINST
THE LESSEE, THE LESSEE, FOLLOWING CONSULTATION WITH (OR DECISION NOT TO
CONSUL?) SEPARATE COUNSEL FOR THE LESSEE AND WITH KNOWLEDGE OF THE LEGAL
EFFECT THEREOF, HEREBY KNOWINGLY, INTENTIONALLY, VOLUNTARILY AND
UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS THE LESSEE HAS OR MAY HAVE TO
PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE
CONSTITUTIONS AND LAWS OF THE UNITED STATES OF AMERICA, THE COMMONWEALTH OF
PENNSYLVANIA OR ELSEWHERE. IT IS SPECIFICALLY ACKNOWLEDGED BY THE LESSEE
THAT THE LESSOR HAS RELIED ON THIS WARRANT OF ATTORNEY IN EXECUTING THIS
LEASE AND AS AN INDUCEMENT TO GRANT FINANCIAL ACCOMMODATIONS HEREUNDER TO
THE LESSEE.
LESSEE EXPRESSLY WARRANTS AND REPRESENTS THAT THE FOLLOWING
WARRANT OF ATTORNEY TO CONFESS JUDGMENT HAS BEEN AUTHORIZED EXPRESSLY BY
PROPER ACTION OF THE BOARD OF DIRECTORS OF LESSEE.
Notwithstanding anything in Paragraph 23(M) to die contrary, this
Paragraph and the authority granted by Lessee therein are not and shall not
be construed to constitute a "tower of attorney" and are not governed by the
provisions of 20 Pa. C. S. Chapter 56. Furthermore, an attorney or other
person or entity acting under this Paragraph 23(M)shall not have any
fiduciary obligations to Lessee and, without limiting the foregoing shall
have NO duty to: (I) exercise the powers for the benefit of Lessee, (2) keep
separate any assets of Lessee from those of such attorney, other person or
entity or Lessor, (3) exercise reasonable caution and prudence on behalf of
Lessee, or (4) keep a fall and accurate record of all actions, receipts and
disbursements on behalf of Lessee.
LESSEE AND LESSOR HEREBY CONSENT TO THE JURISDICTION OF THE COURT OF COMMON
PLEAS OF MONTGOMERY COUNTY PE1VNSYLVANL4 OR THE FEDERAL DISTRICT COURT FOR
IHE EASTERN DISTRICT OF PENNSYLVANIA FOR ANY PROCEEDING IN CONNECTION
HEREWITH, AND HEREBY WAIVE OBJECTIONS AS TO VENUE AND CONVENIENCE OF FORUM
IF VENUE IS IN MONTGOMERY COUNTY, PENNSYLVANIA OR IN THE FEDERAL DISTRICT
COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. IN ANY ACTION OR SUIT UNDER
THIS LEASE, SERVICE OF PROCESS MAY BE MADE UPON LESSOR OR ANY LESSEE BY
MAILING A COPY OF THE PROCESS BY FIRST CLASS MAIL TO THE RECIPIENT AT THE
RESPECTIVE ADDRESS SET FORTH IN PARAGRAPH INFRA. LESSOR AND LESSEE HEREBY
WAIVES ANY AND ALL OBJECTIONS TO SUFFICIENCY OF SERVICE OF PROCESS IF DULY
SERVED IN THIS MANNER.
L. Intentionally Deleted by the Parties
M. Upon the expiration of the then current term of this Lease
or the earlier termination or surrender hereof as provided in this Lease,
Lessee with understanding of the RELINQUISHMENT OF CERTAIN RIGHTS, to which
Lessee would otherwise be entitled as a matter of law and due process,
including the right to notice and judicial hearing, hereby authorizes and
empowers any attorney of any court of record in the Commonwealth of
Pennsylvania as attorney. for Lessee, as well as for all persons claiming
under, by or through Lessee, to appear for Lessee and enter in any competent
court, in accordance with the then applicable rules of such court, an action
in ejectment for possession of the Premises, without any stay of execution
or appeal, against Lessee and all persons claiming under, by or through
Lessee and therein CONFESS JUDGMENT FOR THE RECOVERY BY LESSOR OF POSSESSION
OF THE PREMISES, for which this Lease (or a copy of thereof) shall be
sufficient warrant, whereupon if Lessor so desires, a writ of possession may
be issued forthwith, without any prior writ or proceeding whatsoever. It is
hereby expressly agreed that if for any reason, after such action has been
commenced, the same shall be discontinued, marked satisfied of record or
terminated, or possession of the Premises remain in or be restored to
Lessee, Lessor shall have the right for the same default, or any subsequent
default, to bring one or more actions in the manner herein set forth to
recover possession of the Premises.
N. In any action involving a confession of judgment by Lessor
against Lessee, Lessor 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 and if a true copy of this
Lease (and such affidavit shall be sufficient evidence of the truth of the
copy) be filed in such action, it shall not be necessary to file the
original as warrant of attorney, any rule of court, custom or practice to
the contrary notwithstanding. Lessee hereby releases Lessor and any and all
attorneys who may appear for Lessee, from all liability for any non-material
proceedural errors in said proceedings.
0. If proceedings shall be commenced by Lessor to recover
possession under the Acts of Assembly and Rules of Civil Procedure, either
at the end of the term or earlier termination of this Lease, or for
nonpayment of rent or any other reason, Lessee specifically waives the right
to the three (3) month notice and to the fifteen (15) or thirty (30) days
notice required by the Landlord and Tenant Act of 1951, and agrees that
notice under either Pa. R.C.P. 2973.2 or Pa. R.C.P. 2973.3, as amended from
time to time, shall be sufficient in either or any such case.
P. Notwithstanding anything herein elsewhere contained to the
contrary, Lessor agrees that Lessor will not exercise any right or remedy
provided for in this Lease or allowed by law, because of any default of
Lessee, unless Lessor shall first have given written notice thereof to
Lessee, and Lessee, (i) within a period of ten (10) days thereafter shall
have failed to pay the sum or sums due if the default' consists of the
failure to pay money, or (ii) if said default shall consist of anything
other than the failure to pay the sum or sums due hereunder, Lessee shall
have failed within the period of Thirty (30) days after notice from Lessor
to have cured said default, except that if such default cannot be cured
within said Thirty (30) days, Lessee shall only be in default if Lessee
shall have failed to begin and actively and diligently in good faith proceed
with the correction of the default until it shall be fully corrected not
later than Seventy-five (75) days after such notice; provided, further,
however, that no such notice from Lessor shall be required nor shall Lessor
be required to allow any part of the said notice periods if Lessee shall have
removed from or shall be in the course of removing from the Premises, or
Lessee shall have failed to provide the insurance required by this Lease or
if a Petition in Bankruptcy or for reorganization shall have been filed by or
against the Lessee resulting in an order for relief in bankruptcy, or for
reorganization, or if a receiver or trustee is appointed for Lessee and such
appointment and such receivership or trusteeship is not terminated within
sixty (60) days, or if Lessee makes an assignment for the benefit of
creditors, or if Lessee is levied upon and is about to be sold out upon the
Premises by any sheriff, Marshall or constable; provided, further, however,
that Lessor shall not be required to give any notice called for by this
Paragraph of the Lease more than two (2) times within any twelve (12) month
period.
24. Alterations and Additions.
A. Lessee may, at its own cost and expense, install additional
improvements other than Lessor's Work or Lessee's Work, ("Alterations and
Improvements") upon the Premises, provided that such Alterations and
Improvements shall not adversely affect the roof and structural soundness of
the Premises, or any Systems contained therein.
B. All such Alterations and Improvements shall be in
accordance with plans and specifications to be supplied by Lessee, which
plans shall in all instances first be subject to Lessor's prior written
approval, ("Lessor's Approval") which shall not be unreasonably withheld or
delayed. Lessee shall provide Lessor with evidence that each contractor
performing Alterations and Improvements on the Premises has adequate
workmen's compensation insurance and general liability insurance in the
amount of at least Two Million Dollars ($2,000,000.00) for bodily injury or
death to any person or persons and property damage, on an occurrence basis,
together with a certificate from the insurer who shall be reasonably
satisfactory to Lessor, to the effect that such insurance may not be
cancelled or substantially modified without at least thirty (30) days' prior
written notice to Lessor. Lessor's Approval is intended solely for purposes
of this Paragraph 24, to provide Lessor with notice of all Alterations and
Improvements, and the opportunity to reject any adverse effect on Lessor's
obligations under this Lease. Lessor's Approval shall not signify approval
by Lessor of the design or functionality of any Alterations and Improvements
and shall not confer any rights whatsoever on third parties.
C. To the extent permitted by law, no Alterations or
Improvements at the Premises shall be done except after filing a waiver of
the right to file any lien therefor (commonly known as "mechanic's lien") in
the local prothonotary's office or elsewhere as provided by law, so as to
constitute an effective waiver by anyone having a right to file such a lien.
D. As to Alterations and Improvements installed with prior
Lessor's Approval (except Lessor's Work and such portions of Lessee's Work
not designated for removal in Exhibit "B"), Lessee may, or at Lessor's
demand, shall remove all Alterations and Improvements prior to the end of
the term of this Lease and Lessee shall at its own cost and expense, return
the Premises to its condition as of the Lease Commencement Date, ordinary
wear and tear and damage by insured casualty excepted. In the event, in
violation of subparagraph B hereof, Lessee installs Alterations and
Improvements upon the Premises without prior Lessor's Approval, Lessee shall
remove all Alteration's and Improvements prior to the end of this Lease, at
its own cost and expense, returning the Premises to its condition as of the
Lease Commencement Date. In the event Lessee shall fail to remove the
Alterations and Improvements and restore the Premises, as herein provided,
Lessor shall have the right to go upon the Premises and do so, and Lessee
agrees to pay the cost thereof as Additional Rent. Additionally, Lessor may
decline to accept surrender of the Premises by Lessee so long as such
Alterations and Improvements have not been removed and until removal of the
same, Lessee shall be deemed to have held over under the provisions of
paragraph 2(B), supra.
E. If as a result of any Alterations and Improvements which
may be made to the Premises by the Lessee, either pursuant to this clause or
without Prior Lessor's Approval, any person and/or property shall be injured
and/or damaged, the liability therefor shall be the sole responsibility of
Lessee.
F. In making any Alterations and Improvements, Lessee shall
comply with any and all laws, statutes, ordinances, rules, regulations and
requirements of the municipal and other duly constituted governmental
authorities and insurance organizations.
25. Extensions - Renewals - CPI Escalator.
A. Extensions. Lessee may terminate this Lease at the end of
this term and any renewal term or extension term, by giving to Lessor
written notice at least one hundred eighty (180) days prior thereto, and
Lessor may terminate this Lease at the end of this term and any renewal or
extension thereof by giving to Lessee written notice at least one hundred
fifty (150) days prior thereto (each an "Expiration Notice"); but in default
of an Expiration Notice given by either party in the manner provided herein,
this Lease shall continue for an extension term of one (1) year, commencing
the day after the expiration of the current term, upon the terms and
conditions in force immediately prior to the expiration of the then-current
term, extension term or renewal term (except for the Minimum Annual Rent,
which shall be computed in subparagraph 25(C)), and so on from year to year,
unless terminated by the giving of an Expiration Notice within the times and
in the manner aforesaid. In the event that Lessee or Lessor shall have given
an Expiration Notice, and Lessee shall fail or refuse to completely vacate
the Premises and restore the same to the condition required in this Lease on
or before the date designated in the Expiration Notice (the "Expiration
Date"), then it is expressly agreed that Lessor shall have the option either;
(i) to disregard the Expiration Notice as having no force and
effect, whereupon the Expiration Notice shall be null and void, ab initio,
as if never given; or
(ii) treat Lessee as Holding Over, in accordance with
paragraph 2(H) hereof.
All powers granted to Lessor by this Lease shall be exercised and
all obligations imposed upon Lessee by this Lease shall be performed by
Lessee as well during any extension or renewal of the original term of this
Lease as during the original term hereof.
Notwithstanding anything set forth in subparagraph 25(A) to the
contrary, if the term of this Lease is not previously terminated, the term
of this Lease shall end absolutely, without further notice, at 11:59 p.m. on
the day previous to the 29th anniversary of the Lease Commencement Date.
B. Option to Renew.
(i) Provided Lessor has not previously given Lessee more
than Five (5) notices under paragraph 23(P) hereof, during the term, and
Lessee is not in default under the terms of this Lease at the end of the
original term hereof, Lessee shall have the right and privilege at its
election to renew the term of this Lease for a further period of Five (5)
years to commence upon expiration of the original term hereof ("First
Renewal Term"), by giving Lessor written notice of its election to renew at
least one hundred eighty (180) days prior to the expiration of the original
term hereof. Such renewal shall be on the same terms and conditions (except
for this option to renew which shall be eliminated and except for the rental
as is set forth in subparagraph C hereof) as herein provided for in the
original term. In the event Lessee does not exercise its first option to
renew, then the term of this Lease shall continue in accordance with the
provisions of subparagraph A hereof except for any increase in Minimum
Annual Rent as is set forth in subparagraph C hereof and except further if
Lessor has given Lessee notice to vacate as provided in subparagraph A
hereof, and Lessee's second option to renew set forth in paragraph B(ii)
hereof shall be cancelled without further notice.
(ii) Provided Lessor has not previously given Lessee more
than Five (5) notices under paragraph 23(P) hereof during the First Renewal
Term, and Lessee is not in default under the terms of this Lease at the end
of the First Renewal Term hereof, and Lessee has exercised its first option
to renew as set forth in subparagraph B(i) hereof, Lessee shall have the
right and privilege at its election to renew the term of this Lease for a
further period of Five (5) years to commence upon expiration of the First
Renewal Term hereof, by giving Lessor written notice of its election to
renew at least one hundred eighty (180) days prior to the expiration of the
First Renewal Term hereof. Such renewal shall be on the same terms and
conditions (except for this option to renew which shall be eliminated and
except for the rental as is set forth in subparagraph C hereof) as herein
provided for the First Renewal Term. In the event Lessee does not exercise
its second option to renew, then the term of this Lease shall continue in
accordance with the provisions of subparagraph A hereof except for any
increase in Minimum Annual Rent as is set forth in subparagraph C hereof and
except further if Lessor has given Lessee notice to vacate as provided in
subparagraph A hereof.
C. Computation of Minimum Annual Rent in the Event of
Extension or Renewal.
In the event of extension of this Lease in accordance with
subparagraph A hereof or exercise of Lessee's option to renew in accordance
with the terms of subparagraphs B (i) and (ii) hereof, commencing with the
installment of Minimum Annual Rent due on the first day of the extension
term or renewal term as the case may be, the Minimum Annual Rent set forth
in this Lease for the last Lease Year of the original term shall be
increased by the lesser of:
(i) Three Percent (3%) per annum from the Lease
Commencement Date to the date of termination of the term previous to the
extension or renewal term for which the computation is made; or
(ii) The extent that the Consumer Price Index for "All
Urban Consumers" (the "CPI U") for the United States of America published by
the "Bureau of Labor Statistics of the United States Department of Labor"
(1982-84 = 100) for the last reported month at the time of the expiration of
the term of this Lease and the same month for each succeeding year (the
"Adjustment Index") is higher than the CPI U for the last reported month at
the time of execution of this Lease (the "Base Index").
The new Minimum Annual Rent effective on and after the first
day of the extension or renewal term, for the balance of the extension or
renewal term shall be (a) the Minimum Annual Rent as set forth in this Lease
for the last Lease Year of the term plus the lesser of (b) the percentage
increase computed under subparagraph 25(C) (i) above multiplied by the
Minimum Annual Rent as set forth in this Lease for the last Lease Year of
the term hereof or (c) an amount which is equal to the product obtained by
multiplying the said Minimum Annual Rent for the last Lease Year of the term
by a fraction, the numerator of which is the difference between the
Adjustment Index and the Base Index and the denominator of which is the Base
Index.
Said Minimum Annual Rent shall be payable in advance in equal
monthly installments commencing on the first day of the extension or renewal
term and on the first day of each month thereafter during said extension or
renewal term.
If at the time of any adjustment of the Minimum Annual Rent,
the CPI U is no longer reported or its basic principal has been altered, an
alternative method shall be used to increase the Minimum Annual Rent to
equitably reflect any increase in the cost of living.
26. Place of Payment of Rent and Notices.
All rent shall be payable without notice or demand and all notices
shall be given to Lessor by registered or certified mail, return-receipt
requested, or by nationally-recognized private delivery service issuing
return-receipts, at the following address or at such address as Lessor may
designate by notice to Lessee:
Nappen & Associates t/a 309 Development Company
119 Keystone Drive
Montgomeryville, PA 18936
All notices required to be given by Lessor to Lessee shall be
sufficiently given if sent by registered or certified mail, return-receipt
requested, or by nationally-recognized private delivery service issuing
return-receipts, to the Premises or to such other place as Lessee may
designate by notice to Lessor.
All notices or consents required by this Agreement shall be in writing.
27. Condition of Premises at Termination.
At the expiration of the term hereof, Lessee shall surrender the
Premises to Lessor in good order and condition, broom clean, all Alterations
and Improvements designated for removal under the provisions of paragraph
24, supra, having been removed, reasonable wear and tear and damage by
insured casualty alone excepted. Provided Lessee is not in default
hereunder, all furniture and trade fixtures installed at the expense of
Lessee shall remain the property of Lessee. Provided Lessee is not in
efault hereunder, Lessee shall have the right to remove fixtures and/or
equipment installed by Lessee in the herein demised Premises during the term
of this Lease and any renewal or extension term. Lessee agrees to repair at
its cost and expense any damage done to the Premises by reason of the
removal of such fixtures and/or equipment.
28. Vacation.
Lessee shall not vacate or desert the Premises during the term of
this Lease or permit the same to be empty and unoccupied without taking
adequate measures to secure the Premises, reasonably satisfactory to Lessor.
29. Net Lease.
The parties intend this to be a " fully net" Lease pursuant to
which the rent payable hereunder shall be an absolutely net return to Lessor
for the term of this Lease, undiminished by the taxes, or any of them or any
part thereof or any other carrying charges, maintenance charges (except for
roof and structural maintenance and other items specifically set forth
herein) or any other charges of any kind or nature whatsoever except any
mortgage now or hereafter placed upon the Premises and Lessor shall not be
required to perform any services or furnish any utilities of any kind or
nature whatsoever, except as specifically provided herein. Lessor may
discontinue at any time, any and all facilities furnished and services
rendered by Lessor not expressly covenanted for herein or required to be
furnished or rendered by law; it being understood that they constitute no
part of the consideration for this Lease.
30. Miscellaneous.
A. Parties Bound. Subject to the provisions of this Lease
regarding consent by Lessor, this Lease shall be binding upon the parties
hereto and shall be binding upon and inure to the benefit of and be
enforceable by their respective successors and assigns.
B. Waiver of Custom. Lessor shall have the right at all times,
any law, usage or custom notwithstanding, to enforce strictly the provisions
of this Lease, and the failure of Lessor at any time or times, strictly to
enforce any provision hereof, shall not be construed as having created a
custom or waiver in any way contrary to the specific provisions of this
Lease or as having in any way or manner modified this Lease.
C. Number and Gender. For the purposes of this Lease, the
singular shall include the plural and the plural shall include the singular
and the masculine shall include the feminine and the neuter, as the context
may require. The word " Lessor" as used herein shall mean the owner from
time to time of the fee or equitable title to the Premises and upon transfer
of the fee or equitable title, the person named herein as Lessor shall have
no further liability or obligation hereunder.
D. Captions. The captions contained herein are for the
convenience of the parties only. They do not in any way modify, amplify,
alter or give full notice of the provisions hereof.
E. Amendments. This Lease may be changed, waived, discharged
or terminated only by an instrument in writing signed by the party against
which enforcement of such change, waiver, discharge or termination is sought.
F. Partial Invalidity. If any clause or provision of this
Lease or the application thereof to any person or in any circumstance shall
to any extent be invalid or unenforceable, the remainder of this Lease, or
the application of such clause or provision to persons or in circumstances
other than those as to which it is valid or unenforceable, shall not be
affected thereby, and each clause and provision of this Lease shall be valid
and enforceable to the fullest extent permitted by law.
G. Governing Law. This Lease shall be governed by the laws of
the Commonwealth of Pennsylvania.
H. Lessor's Signs. Lessor shall have the right to display a
"For Sale" sign at any time within Six (6) months prior to the end of the
current term hereof, and also, after notice from either party of intention
to determine this Lease, or any time within three (3) months prior to the
expiration of this Lease, a "For Rent" sign, or both "For Rent" and "For
Sale" signs; and all said signs shall be placed upon such part of the
Premises as Lessor may elect and may contain such matter as Lessor shall
require, but no sign shall materially interfere with Lessee's quiet
enjoyment of the Premises. Prospective purchasers or tenants, authorized by
Lessor may inspect the Premises at reasonable hours at any time on
reasonable advanced notice to Lessee so as to minimize the effect of same on
Lessee's use and enjoyment of the Premises.
I. Entire Agreement. This Lease constitutes the entire
agreement between the parties hereto. Except as set forth herein, there are
no promises, representations or understandings between the parties of any
kind or nature whatsoever.
J. Effectiveness. The furnishing of the form of this Lease
shall not constitute an offer and this Lease shall become effective upon and
only upon its execution by and delivery to each party hereto.
K. Time of the Essence. All times set forth herein shall be of
the essence of this agreement.
31. Bankruptcy or Insolvency.
A. If a petition is filed by or an order for relief is entered
against Lessee under Chapter 7 of the Bankruptcy Code and the trustee of
Lessee elects to assume this Lease for the purpose of assigning it, the
election or assignment, or both, may be made only if all of the terms and
conditions of Paragraphs 31(B) and 31(D) of this Lease are satisfied. If the
trustee fails to elect to assume this Lease for the purpose of assigning it
within sixty (60) days after his appointment, this Lease shall be deemed to
have been rejected. Lessor shall then immediately be entitled to possession
of the Premises without further obligation to Lessee or to the trustee and
this Lease will be cancelled. Lessee's rights to be compensated for damages
in the bankruptcy proceeding, however, shall survive.
B. If Lessee files a petition for reorganization under Chapter
11 or 13 of the Bankruptcy Code or a proceeding that is filed by or against
Lessee under any other chapter of the Bankruptcy Code is converted to a
Chapter 11 or 13 proceeding and Lessee's trustee or Lessee as a
debtor-in-possession fails to assume this Lease within sixty (60) days of
filing of the petition or the conversion, the trustee or the
debtor-in-possession will be deemed to have rejected this Lease. The
election to assume this Lease must be given by notice hereunder and, in
Lessor's business judgment, all of the following conditions, which Lessor
and Lessee acknowledge to be commercially reasonably, must have been
satisfied:
(a) The trustee or the debtor-in-possession has cured or
has provided to the Lessor adequate assurance, as defined in this Paragraph,
that:
(i) The trustee will cure all monetary defaults
under this Lease within ten (10) days from the date of the assumption; and
(ii) The trustee will cure all non-monetary defaults
under this Lease within thirty (30) days from date of assumption.
(b) The trustee or the debtor-in-possession has
compensated Lessor, or has provided to Lessor adequate assurance as defined
in this Paragraph, that within ten (10) days from the date of the
assumption, Lessor will be compensated for any pecuniary loss it incurred
arising from the default of the Lessee, the trustee or the
debtor-in-possession as recited in Lessor's written statement of pecuniary
loss sent to the trustee or the debtor-in-possession by notice hereunder.
(c) The trustee or the debtor-in-possession has provided
Lessor with adequate assurance of the future performance of each of Lessee's
obligation under the Lease; provided, however, that:
(i) The trustee or debtor-in-possession will also
deposit with Lessor as security for the timely payment of rent, an amount
equal to three months Minimum Annual Rent and Additional Rent accruing under
this Lease on a fully gross basis;
(ii) The obligations imposed upon the trustee or the
debtor-in-possession will continue for Lessee after the completion of
bankruptcy proceedings.
(d) Lessor has determined that the assumption of the
Lease will not breach any provision in any other lease, mortgage,
refinancing agreement or other agreement by which Lessor is bound relating
to the Premises.
(e) For purposes of this Paragraph, "adequate assurance"
means that:
(i) Lessor will determine that the trustee or the
debtor-in-possession has, will continue to have, sufficient unencumbered
assets after payment of all secured obligations and administrative expenses
to assure Lessor that the trustee or debtor-in-possession will have
sufficient funds to fulfill Lessee's obligations under this Lease.
(ii) An order will have been entered segregating
sufficient cash payable to Lessor and/or a valid and perfected first lien in
security interest will have been. granted in property of Lessee, trustee or
debtor-in-possession that is acceptable for value in. kind to Lessor to
secure to Lessor the obligation of the trustee or debtor-in-possession to
cure the monetary or non-monetary defaults under this Lease within the time
periods set forth above.
C. In the event that this Lease is assumed by a trustee
appointed to Lessee or by Lessee as debtor-in-possession under the
provisions of Paragraph 31(B) of this Lease, and thereafter Lessee is either
adjudicated bankrupt or files a subsequent petition for arrangement under
Chapter 11 of the Bankruptcy Code, then Lessor may terminate, at its option,
this Lease and all of Lessee's rights under it, by giving notice of Lessor's
election to terminate.
D. If the trustee or the debtor-in-possession has assumed the
Lease, under the terms of subparagraphs (A) or (B) hereof, to assign or to
elect to assign Lessee's interest under this Lease of the estate created by
that interest to any other person, that interest or estate may be assigned
only if Lessor acknowledges in writing that the intended assignee has
provided adequate assurance, as defined in this subparagraph (D), of future
performance of all of the terms, covenants and conditions of this Lease to
be performed by the Lessee.
For the purpose of this subparagraph (D), "adequate assurance of
future performance" means that the Lessor has ascertained that each of the
following conditions have been satisfied;
(a) The assignee has submitted a current financial
statement, audited by a certified public accountant, that shows a, net worth
and working capital in amounts determined by Lessor to be sufficient to
assure the future performance by the assignee of Lessee's obligations under
this Lease;
(b) If requested by Lessor, the assignee will obtain
guaranties in form and substance satisfactory to Lessor from one or more
persons who satisfy Lessor's standards of creditworthiness;
(c) Lessor has obtained all consents or waivers from any
third party required under any lease, mortgage, financing arrangement, or
other agreement by which Lessor is bound to enable Lessor to permit the
assignment.
E. When, pursuant to the Bankruptcy Code, the trustee or the
debtor-in-possession is obligated to pay reasonable use and occupancy
charges for the use of all or part of the Premises, the charges will not be
less than the minimum monthly rent and all Additional Rent accruing hereunder
on a fully gross basis.
F. Neither Lessee's interest in the Lease or any estate of
Lessee created in the Lease will pass to any trustee, receiver, assignee for
the benefit of creditors, or any other person or entity or otherwise by
operation of law under the laws of any state having jurisdiction over the
person or property of Lessee ("State Law") unless Lessor consents in writing
to this transfer. Lessor's acceptance of rent or any other payments from any
trustee, assignee, receiver, person or entity will not be deemed to have
been waived, or waive, the need to obtain Lessor's consent or Lessor's right
to terminate this Lease for any transfer of Lessee's interest under this
Lease without this consent.
G. Lessor may terminate, at its option, by giving Lessee
written notice of this election, this Lease and all of Lessee's rights under
this Lease if any of the following events occur:
(a) Lessee's estate created by this Lease is taken in
execution or by other process of law;
(b) Lessee or any guarantor of Lessee's obligations under
this Lease (" Guarantor" ) is adjudicated insolvent pursuant to the
provisions of any present or future insolvency law under the laws of any
state having jurisdiction;
(c) Any proceedings or filings by or against that
Guarantor under the Bankruptcy Code or any similar provisions of any future
federal bankruptcy laws;
(d) A receiver or trustee of the property of Lessee or
the Guarantor is appointed under State Law by reason of Lessee's or
Guarantor's insolvency or inability to pay its debts as they become due or
otherwise; or
(e) Any assignment for the benefit of creditors is made
of Lessee's or Guarantor's property under State Law.
32. Landlord's Waiver. Notwithstanding anything contained within
this Lease to the contrary, Lessee shall have the right to finance and to
secure under the Uniform Commercial Code, inventory, fixtures, furnishings,
furniture, equipment, machinery, signs, leasehold improvements and other
personal property located upon the Premises. Lessee's right to finance as
herein provided shall be paramount and superior to any lien of Lessor and
Lessor agrees to execute one or more "Landlord Waiver" agreements (in
Lessor's standard format) in favor of any purchase money seller, lessor or
lender which has financed or may finance in the future such items.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
intending to be legally bound, as of the day and year last below written.
NAPPEN & ASSOCIATES, a
Pennsylvania limited partnership
t/a 309 DEVELOPMENT COMPANY
Dated: 12/31/00
By: /s/ Robert W. Nappen
Robert W. Nappen
General Partner
MICRO MEMORY BANK, INC.
A Pennsylvania corporation
By: /s/
Title: President
Dated: December 29, 2000
Attest: /s/
Title: Chief Financial Officer
(CORPORATE SEAL)
TIN NO 23 2784943