LEASE AGREEMENT
THIS AGREEMENT, made the eleventh day of January two thousand and six, by and
between G.S. Developers, a Pennsylvania General Partnership (hereinafter
called Lessor), of the one part, and Dataram Corporation (hereinafter called
Lessee), of the other part.
Lessor is the owner in fee simple and does hereby demise and let unto
Lessee all that certain lot or piece of ground with the buildings
improvements thereon erected known and numbered as 23, 25, 27 and ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ in the County of Bucks, Commonwealth of Pennsylvania, to be
used and occupied for offices and light manufacturing and for no other
purpose, for the term of five years beginning the 1st day of February, two
thousand and six (2006), and ending the 31st day of January, two thousand and
eleven (2011) for the minimum annual rental as follows: From February 1, 2006
to January 31, 2007 Two Hundred and Eight Thousand ($208,000.00) Dollars,
lawful money of the United States of America, payable in monthly installments
in advance during the term of this lease, in sums of Seventeen Thousand
Three Hundred Thirty Three ($17,333.33) Dollars and Thirty Three Cents on the
1st day of each month. The minimum annual rental thereafter shall be
increased annually by a percentage amount equal to the cost of living
increase as measured by the Department of Labor Consumer Price Index for the
City of Philadelphia or if not available, by any other reasonably similar
index using February, 2006 as the base period index number.
1. Inability to Give Possession. If Lessor is unable to give Lessee
possession of the demised premises by reason of the holding over of a
previous occupant, or by reason of any cause beyond the control of the
Lessor, the Lessor shall not be liable in damages to the Lessee, and during
the period that the Lessor is unable to give possession, all rights and
remedies of both parties hereunder shall be suspended.
2. Additional Rent.
(a) Damages for Default. Lessee agrees to pay as rent in addition to
the minimum rental any and all sums which may become due by reason of the
failure of Lessee to comply with all of the covenants of this lease and any
and all damages, costs and expenses which the Lessor may suffer or incur by
reason of any default of the Lessee or failure on his part to comply with the
covenants of this lease, and each of them, and also any and all damages to
the demised premises caused by any act or neglect of the Lessee.
(b) Taxes. Lessee further agrees to pay as rent in addition to the
minimum rental its proportionate share of all taxes assessed or imposed upon
the demised premises and/or the building of which the demised premises is a
part during the term of this lease. The amount due hereunder on account of
such taxes shall be apportioned for that part of the first and last calendar
years covered by the term. The same shall be paid by Lessee to Lessor within
thirty (30) days of receipt of any ▇▇▇▇.
(c) Lessee further agrees to pay as rent in addition to the minimum
rental herein reserved: its proportionate share of premiums for insurance,
obtained by Lessor, against loss, with respect to the building and
improvements in the demised premises, by fire and such other hazards,
casualties and contingencies as are usually covered by an all-risk form of
policy. The fire insurance and extended coverage insurance, together with
such other insurance as
Lessor shall be required to maintain in connection with the demised premises,
shall be at all times in an amount equal to the full replacement value of the
improvements on the demised premises. Lessor shall ▇▇▇▇ Lessee for all
insurance under this clause and Lessee shall pay said ▇▇▇▇ to Lessor within
thirty (30) days of receipt of a ▇▇▇▇ therefor.
(d) Lessee hereby covenants and agrees, at its own cost and expense,
to take out and maintain in full force and effect at all times until the
expiration or earlier termination of this Lease, a comprehensive public
liability insurance policy in the sum of ONE MILLION DOLLARS ($1,000,000.00)
(alternatively FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) basic coverage
with a FIVE HUNDRED THOUSAND DOLLAR ($500,000.00) umbrella policy) aggregate
insuring against loss of life and bodily injury and ONE HUNDRED THOUSAND
DOLLARS ($100,000.00), or such other limit as Lessor may from time to time
specify, insuring against property damage in, on or about the demised
premises, as well as insurance covering loss and damage to Lessee's personal
property in, on or about the demised premises in an amount equal, at all
times, to the full replacement value thereof. Such policy or policies shall
name Lessor and Agent as additional insured (except for Lessee's contents
coverage), shall be non-cancelable without THIRTY (30) days prior written
notice to Lessor, and shall be satisfactory to Lessor in form and content.
Lessee shall deliver such policy or policies to Lessor prior to Lessee's
taking possession of the demised premises, such delivery being a condition
precedent to the commencement of this Lease. Lessee hereby agrees to
indemnify and hold Lessor harmless of and from any and all claims of whatever
nature, including attorney's fees and costs, arising from, or in connection
with, Lessee's use and occupancy of the demised premises except for any
claims arising out of Lessor's negligence or willful misconduct.
(e) Water Rent. Lessee further agrees to pay as additional rent, if
there is a metered water connection to the premises, all charges for water
consumed upon the demised premises in excess of the yearly minimum meter
charge and all charges for repairs to the meter or meters on the premises,
whether such repairs are made necessary by ordinary wear and tear, freezing,
hot water, accident or other causes, immediately when the same become due.
(f) Sewer Rent. Lessee further agrees to pay as additional rent, if
there is a metered water connection to the premises, all sewer rental or
charges for use of sewers, sewage system, and sewage treatment works or
septic systems servicing the demised premises in excess of the yearly minimum
of such sewer charges, immediately when the same become due.
3. Place of Payment. All rents shall be payable without prior notice or
demand at the office of Lessor in ▇▇▇▇▇▇ Park House ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ or at such other place as Lessor may
from time to time designate by notice in writing.
4. Affirmative Covenants of Lessee. Lessee covenants and agrees that he
will perform the following without demand:
(a) Payment of Rent. Pay the rent and all other charges on the days
and times and at the place that they are made payable, without fail, and if
Lessor shall at any time or times accept the rent or rent charges after they
shall have become due and payable,
2
such acceptance shall not excuse delay upon subsequent occasions, or
constitute or be construed as a waiver of any of Lessor's rights. Lessee
agrees that any charge or payment agreed to be treated or collected as rent
and/or any other charges or taxes, expenses, or costs to be paid by the
Lessee may be proceeded for and recovered by the Lessor by lawful distraint
or other process in the same manner as rent due and in arrears.
(b) Cleaning, Repairing, etc. Keep the demised premises clean and
free from all ashes, dirt and other refuse matter; replace all broken glass
windows, doors, etc.; keep all waste and drain pipes open; repair all damage
to plumbing and to the premises in general; keep the same in good order and
repair as they now are, reasonable wear and tear and damage by accidental
fire or other casualty not occurring through negligence of Lessee or those
employed by or acting for Lessee alone excepted. The Lessee agrees to
surrender the demised premises in the same condition in which Lessee has
agreed to keep the same during the continuance of this lease.
(c) Requirements of Public Authorities. Comply with any requirements
of any of the constituted public authorities, and with the terms of any state
or federal statute or local ordinance or regulation applicable to Lessee or
his use of the demised premises, and indemnify Lessor from penalties, fines,
costs or damages resulting from failure so to do.
(d) Fire. Use every reasonable precaution against fire.
(e) Rules and Regulations. Comply with rules and regulations of
Lessor promulgated as provided in this Agreement.
(f) Surrender of Possession. Peaceably deliver up and surrender
possession of the demised premises to the Lessor at the expiration or sooner
termination of this Lease, promptly delivering to Lessor at its office all
keys for the demised premises.
(g) Notice of Fire, etc. Give to Lessor prompt written notice of any
accident, fire, or damage occurring on or to the demised premises.
(h) Condition of Pavement. Lessee shall be responsible for the
condition of the pavement, curb, cellar doors, awnings and other erections on
the pavement during the term of this lease; and hereby agrees that Lessee is
solely liable for any accidents, due or alleged to be due to their defective
condition. Lessee shall pay to Lessor its proportionate share of any and all
costs and expenses incurred for snow and ice removal.
(i) Landscaping. Lessee shall be responsible at its cost to maintain
any and all grass, trees or shrubbery on or about the demised premises.
(j) Agency on Removal. The Lessee agrees that if, with the permission
in writing of Lessor, Lessee shall vacate or decide at any time during the
term of this lease, or any renewal, to vacate the demised premises, prior to
the expiration of this lease, or any renewal, Lessee will not cause or allow
any other agent to represent Lessee in any subletting or reletting of the
demised premises other than an agent approved by the Lessor and that should
Lessee do so or attempt to do so, the Lessor may remove any signs that may be
placed on or about the demised premises by such other agent without
3
any liability to Lessee or to the agent, the Lessee assuming all
responsibility for such action.
5. Negative Covenants of Lessee. Lessee covenants and agrees that he
will do none of the following things without the consent in writing of
Lessor:
(a) Use of Premises. Occupy the demised premises in any other manner
or for any other purpose than as above set forth.
(b) Assignment and Subletting. Assign, mortgage or pledge this lease
or underlet or sublease the demised premises, or any part of it, or permit
any other person, firm or corporation to occupy the demised premises, or any
part of it; nor shall any assignee or sublessee assign, mortgage or pledge
this lease or such sublease, without an additional written consent by the
Lessor, and without consent no assignment, mortgage or pledge shall be valid.
If the Lessee becomes insolvent, or makes an assignment for the benefit of
creditors, or if a petition in bankruptcy is filed by or against the Lessee
or a ▇▇▇▇ in equity or other proceeding for the appointment of a receiver for
the Lessee is filed and not dismissed within sixty (60) days of filing, or if
the real or personal property of the Lessee shall be sold or levied upon by
any sheriff, marshal or constable, the same shall be a violation of this
covenant.
(c) Signs. Place or allow to be placed and stand, a booth, sign or
show case upon the doorsteps, vestibules or outside walls or pavements of the
premises, or paint, place, erect or cause to be painted, placed or erected
any sign, projection or device on or in any part of the premises. Lessee
shall remove any sign, projection or device painted, placed or erected, if
permission has been granted and restore the walls, etc., to their former
conditions, at or prior to the expiration of this lease. In case of the
breach of this covenant (in addition to all other remedies given to Lessor in
case of the breach of any conditions or covenants of this lease) Lessor shall
have the privilege of removing the stand, booth, sign, showcase, projection
or device, and restoring the walls, etc., to their former condition, and
Lessee, at Lessor's option, shall be liable to Lessor for any and all
expenses so incurred by Lessor.
(d) Alterations, Improvements. Make any alterations, improvements, or
additions to the demised premises. All alterations, improvements, additions
or fixtures, whether installed before or after the execution of this lease,
shall remain upon the premises at the expiration or sooner determination of
this lease and become the property of Lessor, unless Lessor shall, prior to
the determination of this lease, have given written notice to Lessee to
remove such alterations, improvements and additions and restore the premises
to the same good order and condition in which they now are. Should Lessee
fail to do so, Lessor may do so, collecting, at Lessor's option, the cost and
expense from Lessee as additional rent.
(e) Machinery. Use or operate any machinery that, in Lessor's
opinion, is harmful to the building or disturbing to other tenants occupying
other parts of it.
(f) Weights. Place any weights in any portion of the demised premises
beyond the safe carrying capacity of the structure.
4
(g) Fire Insurance. Do or allow to be done, any act, matter or thing
objectionable to the fire insurance companies so that the fire insurance or
any other insurance now in force or hereafter to be placed on the demised
premises, or any part of it, or on the building of which the demised premises
may be a part, shall become void or suspended, or whereby the same shall be
rated as a more hazardous risk than at the date of execution of this lease,
or employ any person or persons objectionable to the fire insurance companies
or carry or have any benzene or explosive matter of any kind in and about the
demised premises. In case of a breach of this covenant (in addition to all
other remedies given to Lessor in case of the breach of any of the conditions
or covenants of this lease) Lessee agrees to pay to Lessor as additional rent
any and all increase or increases of premiums on insurance carried by Lessor
on the demised premises, or any part of it, or on the building of which the
demised premises may be a part, caused in any way by the occupancy of Lessee.
(h) Removal of Goods. Remove, attempt to remove or manifest an
intention to remove Lessee's goods or property from or out of the demised
premises otherwise than in the ordinary and usual course of business, without
having first paid and satisfied Lessor for all rent when due.
(i) Vacate Premises. Vacate or desert the premises during the term of
this lease, or permit the same to be empty and unoccupied.
6. Lessor's Rights. Lessee covenants and agrees that Lessor shall have
the right to do the following things and matters in and about the demised
premises:
(a) Inspection of Premises. At all reasonable times upon 24 hour
notice, unless in case of an emergency when no such notice shall be required,
by itself or its duly authorized agents to go upon and inspect the demised
premises and every part of it, and/or at its option to make repairs,
alterations and additions to the demised premises or the building of which
the demised premises is a part.
(b) Rules and Regulations. At any time or times and from time to time
to make such rules and regulations as may from time to time be necessary for
the safety, care and cleanliness of the premises, and for the preservation of
good order. Such rules and regulations shall, when notice is given to Lessee,
form a part of this lease.
(c) Sale or Rent Sign-Prospective Purchasers or Tenants. To display a
''For Sale'' sign at any time, and also, after notice from either party of
intention to terminate this lease, or at any time within three months prior
to the expiration of this lease, a ''For Rent'' sign, or both ''For Rent''
and ''For Sale'' signs; and all of the signs shall be placed upon such part
of the premises as Lessor shall require. Prospective purchasers or tenants
authorized by Lessor may inspect the premises at reasonable hours at any
time, upon 24 hours notice.
7. Responsibility of Lessee. Lessee agrees to be responsible for and to
relieve and hereby relieves the Lessor from all liability by reason of any
injury or damage to any person or property in the demised premises, whether
belonging to the Lessee or any other person, caused by any fire, breakage or
leakage in any part or portion of the demised premises, or any part or
portion of the building of which the demised premises is a part, or from
water, rain or snow that may leak into,
5
issue or flow from any part of the said premises, or of the building of which
the demised premises is a part, from the drains, pipes, or plumbing work of
the same, or from any place or quarter, whether such breakage, leakage,
injury or damage be caused by or result from the negligence of Lessor or its
servants or agents or any person or person.
Lessee also agrees to be responsible for and to relieve and hereby
relieves Lessor from all liability by reason of any damage or injury to any
person or thing which may arise from or be due to the use, misuse or abuse of
all or any of the elevators, hatches, openings, stairways, hallways of any
kind which may exist or hereafter be erected or constructed on the premises,
or from any kind of injury which may be caused on the premises or of which
the demised premises is a part, whether such damage, injury, use, misuse or
abuse be caused by or result from the negligence of Lessor, its servants or
agents or any other person or persons.
8. Responsibility of Lessor.
(a) Total Destruction of Premises. In the event that the demised
premises is totally destroyed or so damaged by fire or other casualty not
occurring through fault or negligence of the Lessee or those employed by or
acting for him, that the same cannot be repaired or restored within a
reasonable time, this lease shall absolutely cease and determine, and the
rent shall ▇▇▇▇▇ for the balance of the term.
(b) Partial Destruction of Premises. If the damage caused as above is
only partial and such that the premises can be restored to their original
condition within a reasonable time, the Lessor may, at its option, restore
the same with reasonable promptness, reserving the right to enter upon the
demised premises for that purpose. The Lessor also reserves the right to
enter upon the demised premises whenever necessary to repair damage caused by
fire or other casualty to the building of which the demised premises is a
part, even though the effect of such entry is to render the demised premises
or a part of it untenantable. In either event the rent shall be apportioned
and suspended during the time the Lessor is in possession, taking into
account the proportion of the demised premises rendered untenantable and the
duration of the Lessor's possession. If a dispute arises regarding the amount
of rent due under this clause, Lessee agrees to pay the full amount claimed
by Lessor. Lessee shall, however, have the right to proceed by law to recover
the excess payment, if any.
(c) Repairs by Lessor. Lessor shall make such election to repair the
premises or terminate this lease by giving notice to Lessee at the leased
premises within thirty days from the day Lessor received notice that the
demised premises had been destroyed or damaged by fire or other casualty.
(d) Damage for Interruption of Use. Lessor shall not be liable for
any damage, compensation or claim by reason of inconvenience or annoyance
arising from the necessity of repairing any portion of the building, the
interruption in the use of the premises, or the termination of this lease by
reason of the destruction of the premises.
(e) Representation of Condition of Premises. The Lessor has let the
demised premises in their present condition and without any representations
on the part of the lessor, its officers, employees, servants and/or agents.
It is understood and agreed that Lessor is
6
under no duty to make repairs or alterations at the time of letting or at any
time thereafter.
(f) Zoning. It is understood and agreed that the Lessor does not
warrant or undertake that the Lessee shall be able to obtain a permit under
any zoning ordinance or regulation for such use as Lessee intends to make of
the said premises, and nothing in this lease shall obligate the Lessor to
assist Lessee in obtaining this permit; the Lessee further agrees that in the
event a permit cannot be obtained by Lessee under any zoning ordinance, or
regulation, this lease shall not terminate without Lessor's consent, and the
Lessee shall use the premises only in a manner permitted under such zoning
ordinance or regulation.
9. Miscellaneous Agreements and Conditions.
(a) Effect of Repairs on Rental. No contract entered into or that may
be subsequently entered into by Lessor with Lessee, relative to any
alterations, additions, improvements or repairs, nor the failure of Lessor to
make such alterations, additions, improvements or repairs as required by any
such contract, nor the making by Lessor or its agents or contractors of such
alterations, additions, improvements or repairs shall in any way affect the
payment of the rent or other charges at the time specified in this lease.
(b) Waiver of Custom. It is hereby covenanted and agreed that
notwithstanding any law, usage or custom, Lessor shall have the right at all
times to enforce the covenants and provisions of this lease in strict
accordance with its terms, notwithstanding any conduct or custom on the part
of the Lessor in refraining from so doing at any time or times; and, further,
that the failure of Lessor at any time or times to enforce its rights under
these covenants and provisions strictly in accordance with the same shall not
be construed as having created a custom in any way or manner contrary to the
specific terms, provisions and covenants of this lease or as having in any
way or manner modified the same.
(c) Conduct of Lessee. This lease is granted upon the express
condition that Lessee and/or the occupants of the premises herein leased,
shall not conduct themselves in a manner which the Lessor in its reasonable
opinion may deem improper or objectionable, and that if at any time during
the term of this lease or any extension or continuation, Lessee or any
occupier of the premises shall have conducted himself, herself or themselves
in a manner which Lessor in its reasonable opinion deems improper or
objectionable, Lessee shall be taken to have broken the covenants and
conditions of this lease, and Lessor will be entitled to all the rights and
remedies granted and reserved in this Agreement, for the Lessee's failure to
observe any of the covenants and conditions of this lease.
(d) Failure of Lessee to Repair. In the event of the failure of
Lessee promptly to perform the covenants of Section 4(b), Lessor may go upon
the demised premises and perform such covenants, the costs, at the sole
option of Lessor, to be charged to Lessee as additional and delinquent rent.
(e) Representation and Condition of Premises. The Lessor has let the
demised premises in their present condition and without any representations
on the part of the
7
Lessor, its officers, employees, servants and/or agents. It is understood
and agreed that Lessor is under no duty to make repairs or alterations at the
time of letting or at any time thereafter except as in herein specifically
provided.
10. Remedies of Lessor. If the Lessee:
(a) Does not pay in full within fifteen (15) days when due any and
all installments of rent and/or any other charge or payment reserved,
included, or agreed to be treated or collected, as rent and/or any other
charge, expense, or cost agreed to be paid by the Lessee; or
(b) Violates or fails to perform or otherwise breaks any covenant or
agreement herein contained and fails to cure any such default within fifteen
(15) days of notice by Lessor; or
(c) Vacates the demised premises or removes or attempts to remove or
manifests an intention to remove any goods or property therefrom otherwise
than in the ordinary and usual course of business without having first paid
and satisfied the Lessor in full for all rent and other charges then due or
that may thereafter become due until the expiration of the then current term,
above mentioned; or
(d) Becomes insolvent, or makes an assignment for the benefit of
creditors, or if a petition in bankruptcy is filed by or against the Lessee
or a ▇▇▇▇ in equity or other proceeding for the appointment of a receiver for
the Lessee is filed, or if proceedings for reorganization or for composition
with creditors under any state or federal law are instituted by or against
Lessee and is not dismissed within sixty (60) days after filing, or if the
real or personal property of the Lessee shall be sold or levied upon by any
sheriff, marshal or constable, then and in any or either of these events,
there shall be deemed to be a breach of this lease, and ipso facto and
without entry or other action by Lessor;
(1) The rent for the entire unexpired balance of the term of this
lease, as well as all other charges, payments, costs and expenses agreed to
be paid by the Lessee, or at the option of Lessor any part of it, and also
costs and officer's commissions including watchman's wages and further
including the five percent chargeable by Act of Assembly to the Lessor,
shall, in addition to any and all installments of rent already due and
payment herein reserved, included or agreed to be treated or collected as
rent, and/or any other charge, expense or cost agreed to be paid by the
Lessee which may be due and payable and in arrears, be taken to be due and
payable in arrears as if by the terms and provisions of this lease, the whole
balance of unpaid rent and other charges, payments, taxes, costs and expenses
were on that date payable in advance; and if this lease or any part is
assigned, or if the premises or any part is sublet, Lessee hereby irrevocably
constitutes and appoints Lessor Lessee's agent to collect the rents due by
such assignee or sublessee and apply the same to the rent due without in any
way affecting Lessee's obligation to pay any unpaid balance of rent due
hereunder or in the event of any of the foregoing at any time at the option
8
of Lessor. Lessor shall make a reasonable effort to re-rent the premises in
the event of a default by Lessee or termination of the Lease;
(2) This lease and the term hereby created shall terminate and
become absolutely void without any right on the part of the Lessee to save
the forfeiture by payment of any sum due or by other performance of any
condition, term or covenant broken; whereupon, Lessor shall be entitled to
recover damages for such breach in an amount equal to the amount of rent
reserved for the balance of the term of this lease, less the fair rental
value of the demised premises, for the residue of the term.
11. Further Remedies of Lessor. In the event of any default as above set
forth in Section 10, the Lessor, or anyone acting on Lessor's behalf, at
Lessor's option:
(a) may without notice or demand enter the demised premises, breaking
open locked doors if necessary to effect entrance, without liability to
action for prosecution or damages for such entry or for its manner, for the
purpose of distraining or levying and for any other purposes, and take
possession of and sell all goods and chattels at auction, on ten (10) days'
notice served in person on the Lessee, or left on the premises, and pay the
Lessor out of the proceeds, and even if the rent is not due and unpaid,
should the Lessee at any time remove or attempt to remove goods and chattels
from the premises without leaving enough thereon to meet the next periodical
payment, Lessee authorizes the Lessor to follow for a period of ninety days
after such removal, take possession of and sell at auction, upon like notice,
sufficient of such goods to meet the proportion of rent accrued at the time
of such removal; and the Lessee hereby releases and discharges the Lessor,
and his agents from all claims, actions, suits, damages and penalties, for or
by reason or on account of any entry, distraint, levy, appraisement or sale;
and/or
(b) may enter the premises, and without demand proceed by distress
and sale of the goods there found to levy the rent and/or other charges
payable as rent, and all costs and officers' commissions, included watchmen's
wages and sums chargeable to Lessor, and further including a sum equal to
five percent of the amount of the levy as commissions to the constable or
other person making the levy, shall be paid by the Lessee, and in such case
all costs, officers' commission and other charges shall immediately attach
and become part of the claim of Lessor for rent, and any tender of rent
without the costs, commission and charges made after the issue of a warrant
of distress shall not be sufficient to satisfy the claim of the Lessor.
Lessee hereby expressly waives in favor of Lessor the benefit of all laws now
made or which may hereafter be made regarding any limitation on the goods
upon which, or the time within which, distress is to be made after removal of
goods, and further relieves the Lessor of the obligations of proving or
identifying such goods, it being the purpose and intent of this provision
that all goods of Lessee, whether upon the demised premises or not, shall be
liable to distress for rent.
(c) Lessee waives in favor of Lessor all rights under the
Pennsylvania Landlord and Tenant Act of 1951, as amended, and all supplements
and amendments that have been or may hereafter be passed, and authorizes the
sale of any goods distrained for rent at any time after ten (10) days from
distraint without any appraisement.
9
(d) May lease the premises or any part or parts of it to such person
or persons as may in Lessor's discretion seem best and the Lessee shall be
liable for any loss of rent for the balance of the then current term.
13. Affidavit of Default. In any amicable action of ejectment and/or for
rent in arrears, 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, of which facts such affidavit
shall be conclusive evidence, and if a true copy of this lease (and of the
truth of the copy such affidavit shall be sufficient evidence) be filed in
such action, it shall not be necessary to file the original as a warrant of
attorney, any rule of Court, custom or practice to the contrary.
14. Right of Assignee of Lessor. The right to enter judgment against
Lessee and to enforce all of the other provisions of this lease may, at the
option of any assignee of this lease, be exercised by any assignee of the
Lessor's right, title and interest in this lease in his, her or their own
name, notwithstanding the fact that any or all assignments of the right,
title and interest may not be executed and/or witnessed in accordance with
the Act of Assembly of May 28, 1715, 1 Sm. L. 94, and all supplements and
amendments that have been or may hereafter be passed and Lessee hereby
expressly waives the requirements of said Act of Assembly and any and all
laws regulating manner and/or form in which such assignments shall be
executed and witnessed.
15. Remedies Cumulative. All of the remedies herein given to Lessor and
all rights and remedies given to it by law and equity shall be cumulative and
concurrent. No termination of this lease or the taking or recovering of the
premises shall deprive Lessor of any of its remedies or actions against the
Lessee for rent due at the time or which, under its terms, would in the
future become due as if there had been no termination, or for sums due at the
time or which, under its terms, would in the future become due as if there
had been no termination, nor shall the bringing of any action for rent or
breach of covenant, or the resort to any other remedy herein for the recovery
of rent be construed as a waiver of the right to obtain possession of the
premises.
16. Condemnation. In the event that the premises demised or any part of
it is taken or condemned for a public or quasi-public use, this lease shall,
regarding the part so taken, terminate as of the date title shall vest in the
condemnor, and rent shall ▇▇▇▇▇ in proportion to the square feet of leased
space taken or condemned or shall cease if the entire premises be so taken.
In either event the Lessee waives all claims against the Lessor by reason of
the complete or partial taking of the demised premises, and it is agreed that
the Lessee shall not be entitled to any notice whatsoever of the partial or
complete termination of this lease for this reason. Notwithstanding the
foregoing, tenant shall retain all claims it has under law to file a separate
claim for its expenses for removing its personal property.
17. Subordination. This Agreement of Lease and all its terms, covenants
and provisions are and each of them is subject and subordinate to any lease
or other arrangement or right to possession, under which the Lessor is in
control of the demised premises, to the rights of the owner or owners of the
demised premises and of the land or buildings of which the demised premises
are a part, to all rights of the Lessor's landlord and to any and all
mortgages and other encumbrances now or hereafter placed upon the demised
premises or upon the land and/or the buildings containing the same; and
Lessee expressly agrees that if Lessor's tenancy, control, or right to
possession shall terminate either by expiration, forfeiture or otherwise,
then this lease shall thereupon immediately terminate and the Lessee shall,
thereupon, give immediate possession; and Lessee hereby waives any and all
claims for damages or otherwise by reason of such termination.
10
18. Termination of Lease. It is hereby mutually agreed that either party
may terminate this lease at the end of its term by giving to the other party
written notice at least ninety days prior thereto, but in default of such
notice, this lease shall continue upon the same terms and conditions in force
immediately prior to the expiration of its term as for a further period of
one year and so on from year to year unless or until terminated by either
party hereto, giving the other ninety days written notice for removal
previous to expiration of the then current term; PROVIDED, however, that
should this lease be continued for a further period under the terms herein
above-mentioned, any allowances given Lessee on the rent during the original
term shall not extend beyond such original term, and further provided,
however, that if Lessor shall have given such written notice prior to the
expiration of any term of its intention to change the terms and conditions of
this lease, and Lessee shall not within fifteen (15) days from such notice
notify Lessor of Lessee's intention to vacate the demised premises at the end
of the current term, Lessee shall be considered as Lessee under the terms and
conditions mentioned in such notice for a further term as above provided, or
for such further term as may be stated in such notice. In the event that
Lessee shall give notice, as stipulated in this lease, of intention to vacate
the demised premises at the end of the present term, or any renewal of
extension of it, and shall fail or refuse to vacate on the date designated by
notice, then it is expressly agreed that Lessor shall have the option either
(a) to disregard the notice so given as having no effect, in which case all
the terms and conditions of this lease shall continue thereafter with full
force precisely as if such notice had not been given, or (b) Lessor may, at
any time within thirty days after the present term or any renewal or
extension, give the said Lessee ten days' written notice of its intention to
terminate the lease; whereupon the Lessee expressly agrees to vacate the
premises at the expiration of the period of ten days specified in the notice.
All powers granted to Lessor by this lease may be exercised and all
obligations imposed upon Lessee by this lease shall be performed by Lessee as
well during any extension of the original term of this lease as during the
original term itself.
19. Notice. All notices required to be given by Lessor to Lessee shall
be sufficiently given by leaving the same upon the demised premises, but
notices given by Lessee to Lessor must be given by registered mail, and as
against Lessor the only admissible evidence that notice has been given by
Lessee shall be a registry return receipt signed by Lessor or its agent.
20. Lease Contains All Agreements. It is expressly understood and agreed
by and between the parties that this lease and the riders attached to it and
forming a part of it set forth all the promises, agreements, conditions and
understandings between Lessor or its Agent and Lessee relative to the demised
premises, and that there are no promises, agreements, conditions or
understandings, either oral or written, between them other than are set
forth. It is further understood and agreed that, except as otherwise
provided, no subsequent alteration, amendment, change or addition to this
lease shall be binding upon Lessor or Lessee unless reduced to writing and
signed by them.
21. Heirs and Assignees. All rights and liabilities given to, or imposed
upon, the respective parties shall extend to and bind the several and
respective heirs, executors, administrators, successors and assigns of the
parties; and if there shall be more than one Lessee, they shall all be bound
jointly and severally by the terms, covenants and agreements of this
Agreement, and the word ''Lessee'' shall be deemed and taken to mean each and
every person or party mentioned as a Lessee, be the same one or more; and if
there shall be more than one Lessee, any notice required or permitted by the
terms of this lease may be given by or to any one of them, and shall have the
same force and effect as if given by or to all. No rights, however, shall
inure to the benefit of any assignee of Lessee unless the assignment to such
assignee has been approved by Lessor in writing.
11
22. Headings Part of Lease. Any headings preceding the text of the
paragraphs and subparagraphs of this Agreement are inserted solely for
convenience or reference and shall not constitute a part of this lease, nor
shall they affect its meaning, construction, or effect.
23. Hazardous Materials. Tenant and its employees, agents and
contractors shall not store, handle, treat, dispose of, discharge, or produce
Waste in the Building. ''Waste'' is defined as (a) any ''hazardous waste'' as
defined by the Resource Conservation and Recovery Act of 1976, as amended
from time to time, and regulations promulgated thereunder; (b) any
''hazardous substance'' as defined by the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time to
time, and regulations promulgated thereunder; (c) any oil, petroleum
products, and their derivatives and by-products; (d) any substance that is
toxic, ignitable, reactive or corrosive; and (e) any waste, substance,
product or material which is either regulated or monitored by any federal,
state, or local law, ordinance, or governmental authority, or whose use,
storage, handling, treatment, disposal, discharge, or production is likewise
regulated or monitored. Notwithstanding anything to the contrary contained in
this subsection, Landlord acknowledges that Tenant will, from time to time,
keep upon the Premises certain products and materials used in the lawful
conduct of Tenant's business therein which would technically constitute a
violation of the terms of this subsection, and Landlord agrees that, with
regard to such products and materials, Tenant shall not be in violation
hereof so long as such products and materials are (i) used at all times for
the purposes for which and in the manner in which they are intended to be
used by their respective manufacturers and in accordance with all federal,
state and local laws or regulations applicable thereto, (ii) not kept upon
the Premises in any greater quantities than necessary for the normal conduct
of Tenant's business or than permitted by applicable laws and regulations and
(iii) used and disposed of by Tenant's employees and agents in a lawful
manner evidencing reasonable care under the circumstances, given the toxicity
thereof. Notwithstanding the foregoing, Lessee shall be entitled to maintain
hazardous materials on the premises provided they are being used in the
lawful conduct of Lessee's business in accordance with all applicable
federal, state or municipal laws or regulations and not kept in greater
quantities than reasonably necessary.
Tenant hereby agrees that it shall be fully liable for all costs and
expenses related to the use, storage and disposal of all Waste stored,
handled, treated, disposed of, discharged or produced on the Premises or
anywhere on the Property by the Tenant or its employees, agents or
contractors, and Tenant shall give immediate notice to Landlord of any
violation or potential violation of the provisions of this Section of which
Tenant has knowledge. Tenant shall defend, indemnify and hold harmless
Landlord and its agents, partners, officers and employees from and against
any and all claims, demands, penalties, fines, liabilities, settlements,
damages, costs or expenses (including, without limitation, reasonable
attorney's and consultants' fees, court costs and litigation expenses) of
whatever kind or nature, known or unknown, contingent or otherwise, allegedly
or actually arising out of or in any way related to (a) the presence,
disposal, handling, release or threatened release of any Waste by Tenant or
its employees, agents or contractors, anywhere upon the Property affecting
soil, water, vegetation, buildings, personal property, persons, animals, or
otherwise; (b) any personal injury (including wrongful death) or property
damage (real or personal) arising out of or relating to that Waste; (c) any
lawsuit brought or threatened, settlement reached or government order
relating to that Waste; or (d) any violation of any laws applicable thereto
or arising therefrom. This indemnification includes, without limitation, any
and all costs incurred because of any investigation of the Property or any
portion therof, or any clean-up, removal or restoration required
13
by Landlord due to a breach of the subsection above, or mandated by a
federal, state or local agency or political subdivision as a result of such
breach. Without limitation of the forgoing, if Tenant causes or permits the
presence of Waste on the Premises under any circumstances, whether or not
such presence constitutes a breach of the subsection above, and that presence
results in contamination anywhere, Tenant shall promptly, at its sole
expense, take any and all necessary actions to return the Premises, the
Property and any other contaminated property to the condition existing prior
to the presence of such Waste; provided, however, that Tenant shall first
obtain Landlord's written approval of any such remedial action, the
contractors retained in connection therewith and the form of contract (and
all subcontracts) entered into to effect such remediation. The provisions of
this subsection shall be in addition to any other obligations and liabilities
that Tenant may have to Landlord at law or equity and shall survive the
transactions contemplated herein and shall survive the expiration or earlier
termination of the Term of this Lease.
24. Utilities. Lessee shall be responsible for the payment of all
utilities.
25. Security Deposit. Lessee upon execution hereof shall deposit with
the Lessor as security for the performance of all the terms, covenants and
conditions of this lease the sum of Fifty Two Thousand ($52,000.00) Dollars.
This deposit is to be retained by the Lessor until the expiration of this
lease and shall be returnable to the Lessee provided that (1) premises have
been vacated; (2) Lessor shall have inspected the premises after such
vacation; and (3) Lessee shall have complied with all the terms, covenants
and conditions of this lease, in which event the deposit so paid hereunder
shall be returned to Lessee. It is understood that the said deposit is not
to be considered as the last rental due under the lease.
26. Late Charges. In the event that any monthly rental payment or any
other amounts due hereunder shall become overdue for period of seven (7)
days, Lessee shall pay to Lessor a "late charge" of five (5c) cents for each
dollar overdue to cover the extra expense involved in collecting the
delinquent payment.
27. Notwithstanding anything herein before to the contrary that for and
consideration of the Lessor permitting the Lessee to install air conditioning
or other equipment on the roof the leased premises, Lessee shall be
responsible for any and all costs of maintaining or repairing the roof of the
demised premises. Lessor shall be responsible for maintaining or repairing
the exterior structural walls provided the same have not been damaged by the
Lessee's carelessness or negligence.
28. In the event of a breach of any of the terms or conditions of this
Lease or in the event Lessee fails to pay any amounts due hereunder, Lessee
shall pay any and all reasonable attorneys fees and costs incurred to enforce
any of the terms and conditions of this Lease.
29. This Lease shall be construed and interpreted in accordance with
the laws of the Commonwealth of Pennsylvania.
30. In the event Lessor enters into a bona fide agreement of sale for
the demised premises, Lessor shall have the right to terminate this Lease
upon two (2) years written notice to Lessee.
14
IN WITNESS WHEREOF, the parties have executed these presents the day and
year first above written, and intend to be legally bound.
Sealed and delivered in the presence of:
G. S. DEVELOPERS
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
_______________________ (Witness) By: ____________________ (Lessor)
DATARAM CORPORATION
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
_______________________ (Witness) By: ___________________ (Lessee)