LEASE RENEWAL AGREEMENT
LEASE RENEWAL AGREEMENT made as of the last date endorsed hereon
between NAPPEN & ASSOCIATES, a Pennsylvania limited partnership t/a 309
DEVELOPMENT COMPANY ("Lessor")
A N D
MICRO MEMORY BANK, INC., a Pennsylvania corporation ("Lessee").
Basis of Agreement
A. By Lease Agreement dated December 31, 2000 (together with this
Lease Renewal Agreement on and after April 1, 2006, the "Lease"), Lessor
demised and let to Lessee, who hired from Lessor that certain portion of
building situate Lot No. 16, Montgomeryville Industrial Center, Montgomery
County, Pennsylvania, consisting of 17,500 sq. ft., more or less, known and
numbered 130 Corporate Drive, Montgomeryville, Pennsylvania 18936 (the
"Premises") for a term expiring March 31, 2006.
B. The parties desire to extend the term of the Lease for an
additional term of five (5) years, commencing April 1, 2006, and ending
March 31, 2011 ("Renewal Term").
C. The parties desire to set forth herein their agreement
regarding the terms of the Lease during the Renewal Term.
NOW,THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. The term of the Lease is hereby extended for a Renewal Term of
five (5) years, commencing April 1, 2006, and terminating March 31, 2011,
at 11:59 p.m., unless extended, renewed or previously terminated, as set
forth in the Lease.
2. During the Renewal Term, Article 3 of the Lease, entitled
"Minimum Annual Rent" shall be amended and supplemented to read as follows:
"3. Minimum Annual Rent. The minimum annual rent ("Minimum
Annual Rent") payable by Lessee to Lessor during the Renewal Term
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 Renewal Term in
sums of Eight Thousand Twenty and 83/100 Dollars ($8,020.83) on the
first day of each month during the Renewal Term, commencing April 1,
2006."
3. Article 25 of the Lease is hereby deleted in its entirety and
the following substituted therefor:
"25. Extensions and Renewals.
A. Extensions. It is hereby mutually agreed that in the event
Lessee has not given the "Preliminary Renewal Notice" as defined in
subparagraph 25(B), or has given the Preliminary Renewal Notice but
has withdrawn the same, Lessee may terminate this Lease at the end of
the Renewal Term and any subsequent 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 the
Renewal Term and any subsequent 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 then current renewal term or extension
term, as the case may be, upon the terms and conditions in force
immediately prior to the expiration of the then-current renewal term
or extension term, as the case may be (except for the Minimum Annual
Rent, which shall be as computed in subparagraph 25(C) (iii)), 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, by notice to Lessee given no later
than forty-five (45) days after the Expiration Date, 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 inito,
as if never given; or
(ii) treat Lessee as Holding Over, in accordance with paragraph
2(B) of the Lease.
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
during the Renewal Term, as well as during any subsequent extension or
renewal terms of this Lease.
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
set forth in the Lease.
B. Option to Renew.
(i) Provided Lessor has not previously given Lessee a notice
under paragraph 23(P) hereof, and Lessee is not in default under the terms
of this Lease at the end of the term of the Renewal Term, Lessee shall have
the right and privilege, at its election, to renew the term of this Lease
for an additional period of five (5) years commencing upon the day after
the expiration of the term of the Renewal Term and terminating five (5)
years thereafter without further notice. Such five-year period is hereinafter
referred to as the "Second Renewal Term".
In order to exercise said option, Lessee must give Lessor written
notice of its election to renew ("Preliminary Renewal Notice") at least one
hundred eighty (180) days prior to the expiration of the term of the
Renewal Term. Said Second Renewal Term shall be on the same terms and
conditions as herein provided for the Renewal Term except that the Minimum
Annual Rent shall be calculated as set forth in the following paragraph. In
the event Lessee does not exercise its option to renew within the time set
forth, the provisions of subparagraph 25(A) shall apply.
C. Computation of Minimum Annual Rent in the event of
Extension/Renewal.
In the event of exercise of the option to renew this Lease by
Lessee in accordance with the terms of subparagraph B, commencing with the
rental payment due on the first day of the Second Renewal Term, the Minimum
Annual Rent shall be the greater of the Minimum Annual Rent set forth in
this Lease for the Renewal Term, or the fair market rental. The fair market
rental shall be determined as follows:
(i) Within fifteen (15) days from receipt of the Preliminary
Renewal Notice, Lessor shall advise Lessee of the fair market rental of the
Premises as of the commencement of the Second Renewal Term, by notice
hereunder, including examples of rentals for comparable space in the Bucks
and Montgomery County areas. In the event Lessee is dissatisfied with the
fair market rental as specified by Lessor, it may withdraw the Preliminary
Renewal Notice, by notice to Lessor, given at least one hundred fifty-one
(151) days prior to the end of the Renewal Term.
(ii) The new Minimum Annual Rent, effective on or after the first
day of the Second Renewal Term and for the balance of the Second Renewal
Term shall be the greater of the fair market rental set forth in Lessor's
notice or the Minimum Annual Rent as set forth in this Lease for the
Renewal Term. This Minimum Annual Rent shall be payable in equal monthly
installments commencing on the first day of the Second Renewal Term and on
the first day of each month thereafter during the Second Renewal Term.
(iii) For extensions of this Lease under subparagraph 25(A), the
Minimum Annual Rent during a one-year extension term shall be the greater
of the Minimum Annual Rent for the previous Lease Year or the fair market
rental for the Premises as of the commencement of the extension term, as
determined by Lessor, payable in monthly installments on the first day of
each month during the extension term."
THE FOLLOWING PARAGRAPH 4 SETS FORTH AN ACKNOWLEDGEMENT AND
CONFIRMATION OF WARRANT OF AUTHORITY FOR ANY PROTHONOTARY 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 CONSULT) 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 ATTORIVE'Y IN EXECUTING THIS LEASE RENEWAL AGREEMENT 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.
LESSEE AND LESSOR HEREBY CONSENT TO THE JURISDICTION OF THE COURT OF
COMMON PLEAS OF MONTGOMERY COUNTY PENNSYLVANIA OR THE FEDERAL DISTRICT
COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA FOR ANY PROCEEDING IN
CONNECTION WITH THE LEASE, 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 THE 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 26 OF THE LEASE.
LESSOR AND LESSEE HEREBY WAIVE ANY AND ALL OBJECTIONS TO SUFFICIENCY OF
SERVICE OF PROCESS IF DULY SERVED IN THIS MANNER.
4. Lessee and Lessor, jointly and severally, acknowledge and
confirm that the Lease contains paragraph 23(M), which permits the Lessor
to CONFESS JUDGMENT AGAINST LESSEE FOR THE RECOVERY BY LESSOR OF POSSESSION
OF THE PREMISES upon the expiration of the then current term of the Lease.
The parties hereto further acknowledge and agree that nothing contained
herein can be construed to impair in any manner whatsoever Lessor's ability
to confess judgment against Lessee for the recovery by Lessor of possession
of the Premises pursuant to the terms of the Lease.
5. Effectiveness. The furnishing of the form of this agreement
shall not constitute an offer and this agreement shall become effective
upon and only upon its execution by and delivery to each party hereto.
6. In all other respects, the terms and conditions of the Lease
not inconsistent with the terms hereof are hereby ratified and confirmed
and shall remain in full force and effect during the Renewal Term.
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: 2/13/06
By: /s/Robert W. Nappen
Robert W. Nappen,
Managing General Partner
MICRO MEMORY BANK, INC.
A Pennsylvania corporation
By: /s/
Title: President
Dated:
Attest:
Title:
(CORPORATE SEAL)