EXHIBIT 10.12
LEASE AGREEMENT
Part One of a Two Part Agreement
1. Parties
This Agreement, MADE THE 22nd day of July one thousand nine hundred and
ninety-four (1994) by and between PMP Whitemarsh Associates, a Pennsylvania
limited partnership, with offices at 000 Xxxxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxxxx
00000 (hereinafter called Lessor), of the one part, and Hope Technologies, Inc.,
a Nevada Corporation with offices at 0000 Xxxxx Xxxx, Xxxxxx Xxxxx, Xxxxxxxxxxxx
00000 (hereinafter called Lessee), of the other part.
2. Premises
3. Term [See Rider Paragraph 35 & 36]
4. Minimum Rent
WITNESSETH THAT: Lessor does hereby demise and let unto Lessee all that
certain lot or piece of ground containing approximately 2.74 acres, together
with the buildings and improvements located thereon containing approximately
12,240 square feet located in Whitemarsh Business Campus and known as 0000
Xxxxxx Xxxxx, Xxxxxxxx Meeting, in the County of Xxxxxxxxxx State of
Pennsylvania, to be used and occupied as for the purpose described in Rider
Paragraph 34 and for no other purpose, for the term of five (5) years beginning
the 1st day of November, one thousand nine hundred and ninety-four (1994), and
ending the 31st day of October, one thousand nine hundred and ninety-nine
(1999), for the minimum aggregate rental of Six Hundred Twelve Thousand & 00/100
Dollars ($612,000) lawful money of the United States of America, payable in
monthly installments in advance during the said term of this lease, or any
renewal hereof, in sums of Ten Thousand Two Hundred & 00/100 Dollars ($10,200)
on the first day of each month, rent to begin from the first day of November
1994, the first installment to be paid at the time of occupancy by Lessee. The
first rental payment 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.
5. Place of Payment
All rent shall be payable without prior notice or demand at the office of
Lessor, or at such other place as Lessor may from time to time designate by
notice in writing.
6. Agency
(b) It is hereby expressly agreed and understood that the said Xxxxxxxx
Realty Corp. is acting as agent only and shall not in any event be held liable
to the owner or to the Lessee for the fulfillment or non-fulfillment of any of
the terms or conditions of this lease, or for any action or proceedings that may
be taken by the owner against Lessee, or by Lessee against the owner.
7. Termination of Lease [See Rider Paragraph 37]
8. Security Deposit [See Rider Paragraph 38]
Lessee shall deposit with Lessor the sum of Twenty Thousand Four Hundred &
00/100 Dollars to be held as security for the full and faithful performance by
Lessee of Lessee's obligations under this Lease and for the payment of damages
to the demised premises. If the demised premises is residential property, said
security deposit is to be held by Lessor in an Escrow Fund pursuant to the terms
and provisions of the Penna Act of Assembly approved December 29, 1972, Act No.
363. Except for such sum as shall be lawfully applied by Lessor to satisfy valid
claims against Lessee arising from defaults under this lease or by reason of
damages to the demised premises, the Security Deposit or Escrow Fund shall be
returned to Lessee at the expiration of the term of this lease or any removal or
extension thereof. It is understood that no part of any security deposit or
Escrow Fund is to be considered as the last rental due under the terms of this
lease.
9. Special Clauses
See attached Rider for Special Clauses 34 through 62. Exhibit "A" (Description
of Landlord Finish Work) and Exhibit "B" (Plan of Premises) and Exhibit "C"
Architect's Plans are also attached hereto and made part hereof.
10. Addendum
The Lessor and Lessee agree for themselves, their respective heirs and
successors and assigns to the herein described terms and also to those set forth
in the addendum attached hereto, entitled "TERMS AND CONDITIONS,"(PART TWO) all
of which are to be regarded as binding and as strict legal conditions.
11. Special Clauses
See Rider Paragraph 39 or modifications to Lease Paragraphs 12 through 33.
12. Inability to give Possession
If Lessor is unable to give Lessee possession of the demised premises, as
herein provided, 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 therfor, and during the period that the Lessor
is unable to give possession, all rights and remedies of both parties hereunder
shall be suspended, and if Lessor is unable for any reason to give possession of
the demised premises within 5 days of Lessee's demand therefor following
commencement of the term hereof Lessee shall have the option, by notice to
Lessor, to cancel this lease agreement and receive return of any prepaid rents
and security deposit in full and final settlement of any and all claims against
Lessor.
13. Additional Rent
(a) Damages for Default
Lessee agrees to pay as rent in addition to the minimum rental herein
reserved 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
herein reserved all taxes assessed or imposed upon the demised premises and/or
the building of which the demised premises is 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 hereof.
(c) Fire Insurance Premiums
Lessee further agrees to pay to Lessor as additional rent all fire
insurance premiums upon the demised premises and/or the building of which the
demised premises is a part.
(d) Water Rent
Lessee further agrees to pay as additional rent, all charges for water
consumed upon the demised premises 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.
(e) Lessee further agrees to pay as additional rent all sewer rental or
charges for use of sewers, sewage system, and sewage treatment works servicing
the demised premises immediately when the same become due.
14. Affirmative Covenants of Lessee
Lessee covenants and agrees that he will without demand:
(a) Payment of Rent
Pay the rent and all other charges herein reserved as rent at the time and
at the place that the same are payable, without fail; and if Lessor shall at any
time or times accept said rent or rent charges at the same shall have become
delinquent, 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 herein reserved, included or agreed to be treated or
collected as rent and/or any other charges, expenses or costs herein agreed to
be paid by Lessee may be proceeded for and recovered by Lessor by legal 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 glass windows, doors, etc., broken; 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 are now, reasonable wear
and tear and damage by accidental fire or other insured casualty alone excepted.
The Lessee agrees to surrender the demised premises in the same condition in
which Lessee has herein 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 save Lessor harmless from penalties, fines, costs or damages
resulting from failure to do so.
(d) Fire
Use every reasonable precaution against fire.
(d) Rules and Regulations
Comply with rules and regulations of Lessor promulgated as hereinafter
provided.
(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 his 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 in the pavement during the term of this
lease; shall keep the pavement free from snow and ice; and shall be and hereby
agrees that Lessee is solely liable for any accidents due or alleged to be due
to their defective condition, or to any accumulations of snow and ice.
(i) Agency on Removal [Deleted]
(j) Indemnification
Indemnify and save Lessor harmless from any and all loss occasioned by
Lessee's breach of any of the covenants, terms and conditions of this lease, or
caused by his family, guests, visitors, agents and employees.
15. Negative-Covenants of Lessee
Lessee covenants and agrees that he will do none of the following things
without first obtaining the consent, in writing of Lessor, which consent Lessor
shall not unreasonably withhold, and without providing
Lessor with reimbursement for any expenses incurred or incidental to Lessee's
proposed action.
(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 under-let or sub-lease the demised
premises, or any part thereof, or permit any other person, firm or corporation
to occupy the demised premises, or any part thereof, nor shall any assignee or
sub-lessee assign, mortgage or pledge this lease or such sub-lease, without an
additional written consent by the Lessor and without such consent no such
assignment, mortgage or pledge shall be valid. If the Lessee becomes embarrassed
or 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 xxxx in equity or
other proceeding for the appointment of a receiver for the Lessee is filed, 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 any stand, booth, sign or show case upon the
doorsteps, vestibules or outside walls or pavements of said 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 said stand,
booth, sign, show case, projection or device, and restoring said 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 alteration, 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 the lease, have given written notice to Lessee to remove the same, in which
event Lessee will 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 so to do, Lessor may do so, collecting, at Lessor's option,
the cost and expense thereof 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 thereof.
(f) Weights
Place any weights in any portion of the demised premises beyond the safe
carrying capacity of the structure.
(g) Fire Insurance
Do or suffer to be done, any act, matter or thing objectionable to the fire
insurance companies whereby the fire insurance or any other insurance now in
force or hereafter to be placed on the demised premises, or any part thereof, 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 benzine 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 or 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
thereof, 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 which may become due during the entire term of this lease.
(i) Vacate Premises
Vacate or desert said premises during the term of this lease, or permit the
same to be empty and unoccupied.
16. 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 by himself or his duly authorized agents to go upon
and inspect the demised premises and every part thereof, and/or at his 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 make such reasonable rules and
regulations as may be necessary or desirable for the safety, care, and
cleanliness of the demised premises and/or of the building of which the demised
premises is a part and of real and personal property contained therein and for
the preservation of good order. Such rules and regulations shall, when
communicated in writing 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 determine 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 said signs shall be placed upon such part
of the premises as Lessor may elect and may contain such matter as Lessor shall
require. Persons authorized by Lessor may inspect the premises at reasonable
hours during the said periods.
(d) Discontinue Facilities and Service
Lessor may discontinue at any time, any or all facilities being 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 of this lease.
17. Responsibility of Lessee
(a) Lessee agrees to relieve and hereby relieves the Lessor from all
liability by reason of 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 building of which the
demised premises is a part or from water, rain or snow that may leak into, 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, unless such breakage, leakage, injury or
damage be caused by or result from the negligence of Lessor or its servants or
agents.
(b) Lessee also agrees to relieve and hereby relieves Lessor from all
liability by reason of any damage or injury to any property or to Lessee or
Lessee's guests, servants or employees 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 whatsoever which may exist or hereafter be
erected or constructed on the said premises or the sidewalks surrounding the
building of which may arise from defective construction, failure of water
supply, light, power, electric wiring, plumbing or machinery, wind, lightning,
storm or other cause whatsoever on the said premises or the building of which
the demised premises is a part, unless such damage, injury, use, misuse or abuse
be caused by or result from the negligence of Lessor, its servants or agents.
18. Responsibility of Lessor
(a) Total Destruction of Premises
In the event the demised premises are totally destroyed or so damaged by
fire or other casualty that, in the opinion of a licensed architect retained by
Lessor, the same cannot be repaired and restored within ninety days from the
happening of such injury this lease shall absolutely cease and determine, and
the rent shall xxxxx for the balance of the term.
(b) Partial Destruction of the Premises
If the damage be only partial and such that the premises can be restored,
in the opinion of a licensed architect retained by Lessor, to approximately
their former condition within ninety days from the date of the casualty loss
Lessor may, at Lessor's option, restore the same with reasonable promptness,
reserving the right to enter upon the demised premises for that purpose. 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 be to render the demised premises or
a part thereof untenantable. In either event, the rent shall be apportioned and
suspended during the time Lessor is in possession, taking into account the
proportion of the demised premises rendered untenantable and the duration of
Lessor's possession. If a dispute arises as to the amount of rent due under this
clause, Lessee agrees to pay the full amount claimed by Lessor, but Lessee shall
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 thereof 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
Except to the extent hereinbefore provided, Lessor shall not be liable for
any damage, compensation, or claim by reason of the necessity of repairing any
portion of the building, the interruption in 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 to or destruction of the
premises.
(e) Representation of Condition of Premises
Lessor has let the demised premises in their present "as is" condition and
without any representations, other than those specifically endorsed hereon by
Lessor, through its officers, employees, servants and/or agents. It is
understood and agreed that Lessor is under no duty to make repairs, alterations,
or decorations at the inception of this lease or at any time thereafter unless
such duty of Lessor shall be set forth in writing endorsed herein.
(f) Zoning
It is understood and agreed that the Lessor hereof 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 contained shall obligate the Lessor to
assist Lessee in obtaining said 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.
19. Miscellaneous Agreements and Conditions
(a) Effects of Repairs of 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 shall in any way affect the payment of the rent or other said charges at
the time specified in this lease, except to the extent and in the manner
hereinbefore provided.
(b) Waiver of Custom
It is hereby covenanted and agreed, any law, usage or custom to the
contrary notwithstanding, the Lessor shall have the right at all times to
enforce the covenants and provisions of this lease in strict accordance with the
terms hereof, notwithstanding any conduct or custom on the part of the Lessor in
refraining from doing so at any time or times; and further, that the failure of
Lessor at any time or times to enforce his rights under said covenants and
provisions strictly in accordance with the same shall not be construed as having
created a custom in any way or manner 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 is improper or objectionable, and if at any time during the term of this
lease or any extension or continuation thereof Lessee or any occupier of the
said premises shall have conducted himself in a manner which is improper or
objectionable, Lessee shall be taken to have broken 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 14(b) hereof, Lessor may go upon the demised premises and perform such
covenants, the cost thereof, at the sole option of Lessor, to be charged to
Lessee as additional and delinquent rent.
(e) Waiver of Subrogation
Lessor and Lessee hereby agree that all insurance policies which each of
them shall carry to insure the demised premises and the contents therein against
casualty loss, and all liability policies which they shall carry pertaining to
the use and occupancy of the demised premises shall contain waivers of the right
of subrogation against Lessor and Lessee herein, their heirs, administrators,
successors, and assigns.
(f) Security Interest
Lessee hereby grants to Lessor a security interest under the Uniform
Commercial Code in all of Lessee's goods and property in, on, or about the
demised premises. Said security interest shall secure unto Lessor the payment of
all rent (and charges collectible or reserved as rent) hereunder which shall
become due under the provisions of this lease. Lessee hereby agrees to execute,
upon request of Lessor, such financing statements as required under the
provisions of the said Uniform Commercial Code to perfect a security interest in
Lessee's said goods and property.
20. Remedies of Lessor
If the Lessee
(a) Does not pay in full when due any and all installments of rent and/or
any other charge or payment herein reserved, included, or agreed to be treated
or collected as rent and/or any other charge, expense, or cost herein agreed to
be paid by the Lessee; or
(b) Violates or fails to perform or otherwise breaks any covenant or
agreement herein contained; 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 embarrassed or insolvent, or makes an assignment for the
benefit of creditors, or if a petition in bankruptcy is filed by or against
Lessee or a complaint in equity or other proceedings for the appointment of a
receiver for Lessee is filed, or if proceedings for reorganization or for
composition with creditors under any State or Federal law be instituted by or
against Lessee, or if the real or personal property of Lessee shall be levied
upon or sold, or if for any
other reason Lessor shall, in good faith, believe that Lessee's ability to
comply with the covenants of this lease, including the prompt payment of rent
hereunder, is or may become impaired;
thereupon:
(1) The whole balance of rent and other charges, payments, costs and
expenses herein agreed to be paid by Lessee, or any part thereof, and also all
costs and officers' commissions including watchmen's wages shall be taken to be
due and payable and in arrears as if by the terms and provisions of this lease
said balance of rent and other charges, payment, taxes, costs and expenses were
on that date, payable in advance. Further, if this lease or any part thereof is
assigned, or if the premises, or any part thereof is sub-let, Lessee hereby
irrevocably constitutes and appoints Lessor as Lessee's agent to collect the
rents due from such assignee or sub-lessee and apply the same to the rent due
hereunder without any way affecting Lessee's obligation to pay any unpaid
balance of rent due hereunder; or
(2) At the option of Lessor, this lease and the terms hereby created shall
determine and become absolutely void without any right on the part of Lessee to
reinstate this lease 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 said demised premises for the remainder of the lease term.
21. Further Remedies of Lessor
In the event of any default as above set forth in Section 20, Lessor, or
anyone acting on Lessor's behalf, at Lessor's option:
(a) May let said premises or any part or parts thereof to such person or
persons as may, in Lessor's discretion, be best; and Lessee shall be liable for
any loss of rent for the balance of the then current term. Any such re-entry or
re-letting by Lessor under the terms hereof shall be without prejudice to
Lessor's claim for actual damages, and shall under no circumstances, release
Lessee from liability for such damages arising out of the breach of any of the
covenants, terms and conditions of this lease.
(b) May proceed as a secured party under the provisions of the Uniform
Commercial Code against the goods in which Lessor has been granted a security
interest pursuant to Section 19(f) hereof; and
(c) May have and exercise any and all other rights and/or remedies, granted
or allowed landlords by any existing or future Statute, Act of Assembly, or
other law of this state in cases where a landlord seeks to enforce rights
arising under a lease agreement against a tenant who has defaulted or otherwise
breached the terms of such lease agreement; subject, however, to all of the
rights granted or created by any such Statute, Act of Assembly, or other law of
this state existing for the protection and benefit of tenants; and
(d) May have and exercise any and all other rights and remedies contained
in this lease agreement, including the rights and remedies provided by Section
22 and 23 hereof.
22. Confession of Judgment for Money
Lessee covenants and agrees that if the rent and/or any charges reserved in
this lease as rent (including all accelerations of rent permissible under the
provisions of this lease) shall remain unpaid five (5) days after the same is
required to be paid, then and in that event, Lessor may cause Judgment to be
entered against Lessee, and for that purpose Lessee hereby authorizes and
empowers Lessor or any Prothonotary, Clerk of Court or Attorney of any Court of
Record to appear for and confess judgment against Lessee and agrees that Lessor
may commence an action pursuant to Pennsylvania Rules of Civil Procedure No.
2950 et seq. for the recovery from Lessee of all rent hereunder (including all
accelerations of rent permissible under the provisions of this lease) and/or for
all charges reserved hereunder as rent, as well as for interest and costs and
Attorney's commission, for which authorization to confess judgment, this lease
or a true and correct copy thereof, shall be sufficient warrant. Such Judgment
may be confessed against Lessee for the amount of rent in arrears (including all
accelerations of rent permissible under the provisions of this lease) and/or for
all charges reserved hereunder as rent, as well as rent for interest and costs;
together with an attorney's commission of five percent (5%) of the full amount
of Lessor's claim against Lessee. Neither the right to institute an action
pursuant to Pennsylvania Rules of Civil Procedure No. 2950 et seq. nor the
authority to confess judgment granted herein shall be exhausted by one or more
exercises thereof, but successive complaints may be filed and successive
judgments may be entered for the aforedescribed sums five days or more after
they become due as well as after the expiration of the original term and/or
during or after expiration of any extension or renewal of this lease.
23. Confession of Judgment for Possession of Real Property
Lessee covenants and agrees that if this lease shall be terminated (either
because of condition broken during the term of this lease or any
renewal or extension thereof and/or when the term hereby created or any
extension shall have expired) then, and in that event, Lessor may cause a
judgment in ejectment to be entered against Lessee for possession of the demised
premises, and for that purpose Lessee hereby authorizes and empowers any
Prothonotary, Clerk of Court or Attorney of any Court of Record to appear for
Lessee and to confess judgment against Lessee in Ejectment for possession of the
herein demised premises, and agrees that Lessor may commence an action pursuant
to Pennsylvania Rules of Procedure No. 2970 et seq. for the entry of an order in
Ejectment for the possession of real property and Lessee further agrees that a
Writ of Possession pursuant thereto may issue forthwith, for which authorization
to confess judgment and for the issuance of a writ or writs of possession
pursuant thereto, this lease, or a true and correct copy thereof, shall be
sufficient warrant. Lessee further covenants and agrees, that if for any reason
whatsoever, after said action shall have commenced the action shall be
terminated and the possession of the premises demised hereunder shall remain in
or be restored to Lessee, Lessor shall have the right upon any subsequent
default or defaults, or upon the termination of this lease as above set forth to
commence successive actions for possession of real property and to cause the
entry of successive judgments by confession in Ejectment for possession of the
premises demised hereunder.
24. Affidavit of Default
In any procedure or action to enter Judgment by Confession for Money
pursuant to Section 22 hereof, or to enter Judgment by Confession in Ejectment
for possession of real property pursuant to Section 23 hereof, if Lessor shall
first cause to be filed in such action an affidavit or averment of the facts
constituting the default or occurrence of the condition precedent, or event, the
happening of which default, occurrence, or event authorizes and empowers Lessor
to cause the entry of judgment by confession, such affidavit or averment shall
be conclusive evidence of such facts, defaults, occurrences, conditions
precedent, or events; and if a true copy of this lease (and of the truth of
which such affidavit or averment shall be sufficient evidence) be filed in such
procedure or action, it shall not be necessary to file the original as a Warrant
of Attorney, any rule of court, custom, or practice to the contrary
notwithstanding.
25. Waivers by Lessee of Errors, Right of Appeal, Stay, Exemption, Inquisition
Lessee hereby releases to Lessor and to any and all attorneys who may
appear for Lessee all errors in any procedure or action to enter Judgment by
Confession by virtue of the warrants of attorney contained in this lease, and
all liability therefor. Lessee further authorizes
the Prothonotary or any Clerk of Record to issue a Writ of Execution or other
process, and further agrees that real estate may be sold on Writ of Execution or
other process. If proceedings shall be commenced to recover possession of the
demised premises either at the end of the term or sooner termination of this
lease, or for non-payment of rent or for any other reason, Lessee specifically
waives the right to the three (3) months notice to quit and/or the fifteen (15)
days notice to quit required by the Act of April 6, 1951, P.L. 69, as amended,
and agrees that five (5) days notice shall be sufficient in either or any such
case.
26. Right of Assignee of Lessor
The right to enter judgment against Lessee by confession and to enforce all
of the other provisions of this lease herein provided for 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, any statute,
rule of court, custom, or practice to the contrary notwithstanding.
27. Remedies Cumulative
All of the remedies hereinbefore given to Lessor and all rights and
remedies given to it by law and equity shall be cumulative and concurrent. No
determination of this lease or the taking or recovering possession 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 the terms hereof would in the
future become due as if there had been no determination, nor shall the bringing
of any action for rent or breach of covenant, or the resort to any other remedy
herein provided for the recovery of rent be construed as a waiver of the right
to obtain possession of the premises.
28. Condemnation
In the event that the premises demised herein, or any part thereof, is
taken or condemned for a public or quasi-public use, this lease shall as to the
part so taken, terminate as of the date title shall vest in the condemnor, and
rent shall xxxxx 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.
29. 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 as
aforesaid.
30. Notices
All notices must be given by certified mail, return receipt requested.
31. Lease Contains all Agreements
It is expressly understood and agreed by and between the parties hereto
that this lease and the riders attached hereto and forming a part hereof set
forth all the promises, agreements, conditions and understandings between Lessor
or his Agent and Lessee relative to the demised premises, and that there are no
promises, agreements, conditions or understanding, either oral or written,
between them other than herein set forth. It is further understood and agree
that, except as herein 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.
32. Heirs and Assignees
All rights and liabilities herein given to, or imposed upon, the respective
parties hereto shall extend to and bind the several and respective heirs,
executors, administrators, successors and assigns of said parties; and if there
shall be more than one Lessee, they shall be all bound jointly and severally by
the terms, covenants and agreements herein, and the word "Lessee" shall be
deemed and taken to mean each and every person or party mentioned as a Lessee
herein, 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 thereof, and shall have the same force and effect as if given by or to
all thereof. The words "his" and "him" wherever stated herein, shall be deemed
to refer to the "Lessor" or "Lessee" whether such Lessor or Lessee be singular
or plural and irrespective of gender. 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 as aforesaid.
33. Headings no part of lease
Any headings preceding the text of the several paragraphs and
sub-paragraphs hereof 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.
In Witness Whereof, the parties hereto have executed these presents the day
and year first above written, and intend to be legally bound thereby.
[Seal of Hope Technologies]
SEALED AND DELIVERED IN THE Hope Technologies, Inc.
PRESCENCE OF:
/s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxxx
-------------------------- -----------------------------------
Name: Xxxxx X. Xxxxxx
Title: President & CEO
PMP Whitemarsh Associates
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Partner
[Letterhead of
XXXX X. XXXXX,
Architect & Planner]
[EXHIBIT "A"]
Page 1 of 2
1. Remove existing computer room partitions, flooring, and ceiling.
Remove HVAC systems as required and prep. Interior for new
drywall and partitions.
2. Install new partitions and doors as indicated on floor plans.
Install new drywall, finish spackle, sand, and paint all walls,
one color.
3. Install new drop ceiling, 2x4 fissured minaboard, as indicated on
plan. 2x2 "Shadowline" ceiling installed in specific areas as
noted.
4. Install 2x2 and 2x4 layin fixtures as indicated on Electrical
Plan. Install duplex outlets as indicated on plans. Install back
boxes, only, for telephone and computer connections, wiring
provided by tenant, as located on plans by tenant. Install new
emergency lighting as required. Install 480/150 KVA booster and
disconnects as shown on plans for tenant's equipment, tenant to
provide equipment wiring.
5. Install HVAC system as required to provide five adequate zones as
shown on plans.
6. Revise existing plumbing as shown on plans. Install two
fiberglass slop sinks in dry areas as noted. Install three
stainless steel kitchen type sinks on Formica counters and base
cabinets, $1000.00 top and base cabinet allowance. Cap unused
drain and feed lines below floor level and patch floor.
7. Install commercial grade carpet in areas indicated on finish
schedule, upgrade for executive office and conference area.
Install commercial grade vinyl tile in areas indicated, and
provide epoxy painted floor as noted on finish schedule.
8. Install new rubber roof, coping, and HVAC curbs as required.
9. Modify sprinkler system for code compliance and for dry room
clearance as per plan.
10. Provide new paving wear course in all existing parking areas, and
re-stripe both upper parking lots as per local code.
11. Remove and replaced damaged front concrete steps, provide
handicapped access as required.
12. Provide general cleaning of both the exterior and interior of the
building. Landscaping to be re-done as required for appearance.
EXCLUSIONS
1. Additional wiring and or connections to be tenants
responsibility.
2. Additional plumbing and or connections to be tenants
responsibility.
3. Security systems and related hardware are to be tenants
responsibility.
4. Window treatments above and beyond existing shall be tenants
responsibility.
5. Tenant shall be responsible for patching floor slab or walls
disturbed by installations of his equipment.
6. Any installations not included on plans or in the scope of work
shall be tenant responsibility.
Exhibit B
[Floor Plan]
ADDENDUM to Lease Agreement dated July 22, 1994, by and between PMP
Whitemarsh Associates, a Pennsylvania limited partnership ("Lessor"), and Hope
Technologies, Inc., a Nevada corporation ("Lessee"), for that certain premises
located at 0000 Xxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxx 00000.
In the event of any conflict between the provisions of this Addendum and
the printed provisions of the Lease, the provisions of this Addendum shall
control and shall be given full force and effect without regard to any
conflicting or contrary printed provisions.
34. Lessee shall be permitted to use the demised premises as administrative and
executive offices, as a laboratory for industrial research and development, as a
pilot production facility for advanced rechargeable batteries and for all other
lawful uses and purposes permitted under the Zoning Code of Whitemarsh Township
and all other applicable laws and regulations and subject to the restrictions,
if any, imposed by the Whitemarsh Business Campus.
35. Lessee shall have the right and option to terminate the Lease effective as
of October 31, 1997. Such termination right shall be exercised by Lessee giving
written notice of termination to Lessor on or before April 30, 1997, which
notice must be accompanied by a termination payment equal to One Hundred Fifty
Thousand & 00/100 Dollars ($150,000.00) for the notice to be effective. In the
event that Lessee shall be in default in the payment of rent or any other charge
or payment herein reserved at the time of Lessee's exercise of the termination
right, Lessee's notice of termination also must be accompanied by payment of all
amounts then in arrears for the notice to be effective. Lessee also shall pay to
Lessor as and when due all installments of rent and other charges or payments
herein reserved until the effective date of termination of the Lease. Should
Lessee properly exercise its termination right, Lessee and Lessor agree to
execute a Termination of Lease Agreement setting forth the terms and conditions
of said termination.
36. Lessee shall have the right and option to renew the term of the Lease for a
period of five (5) years commencing on November l, 1999, and ending on October
31, 2004, on the same terms and conditions as are in effect immediately prior to
the expiration of said initial term, except for adjustment of the minimum annual
rent, which will increase during the option period as follows:
OPTION ANNUAL MONTHLY
PERIOD RENTAL RENTAL
--------- ----------- ----------
6th Year $126,072.00 $10,506.00
7th Year $129,852.00 $10,821.00
8th Year $133,752.00 $11,146.00
9th Year $137,760.00 $11,480.00
10th Year $141,900.00 $11,825.00
In order to exercise said renewal option, Lessee must:
(a) Give Lessor written notice on or before April 30, 1999, of
Lessee's election to renew for the renewal term; and
(b) Not have received more than five written notices of default
from Lessor prior to the time of Lessee's exercise of its renewal option; not be
in default at the time said option is exercised; and not be in default between
the time said option is exercised and the start of the renewal term.
It is further agreed and understood that in the event that Lessee properly
exercises its renewal right, Paragraph 35 of this Rider automatically shall
become null and void and of no further effect.
37. The Lease shall expire absolutely and without notice on the last day of the
term, unless renewed pursuant to Paragraph 36 of this Rider, provided that if
Lessee, with the prior written consent of Lessor, retains possession of the
demised premises or any part thereof after the termination of the Lease by
expiration of the term or otherwise, a month-to-month tenancy shall be deemed to
exist, and Lessee shall continue to pay the minimum rent and other charges or
payments herein reserved. If such holding over exists without Lessor's prior
written consent, Lessee shall pay Lessor, as partial compensation for such
unlawful retention, an amount calculated on a per diem basis for each day of
such continued unlawful retention, equal to two (2) times the minimum rent for
the time Lessee thus remains in possession. Such payments for unlawful retention
shall not limit any rights or remedies of Lessor resulting by reason of the
wrongful holding over by Lessee or create any right in Lessee to continue in
possession of the demised premises.
38. Lessee shall deposit with Lessor upon execution of this Lease by Lessor the
sum of Ten Thousand Two Hundred & 00/100 ($10,200.00) to be held by Lessor as
security as provided in Paragraph 8 of the Lease. Lessee shall deposit with
Lessor upon commencement of Lessee's occupancy of the demised premises the
further sum of Ten Thousand Two Hundred & 00/100 ($10,200.00) to be held by
Lessor as additional security. All such sums shall be deposited by Lessor in an
interest bearing account, with all accrued interest to follow principal. Upon
execution of the Lease, Lessee shall deliver to Lessor or Lessor's Agent a Form
W-9 as required by the Internal Review Service. If Lessee fails to provide
Lessor with a Form W-9, Lessor shall be permitted to deposit Lessee's security
deposit in a non-interest bearing account.
39. Lease Paragraphs 12 through 33 shall be modified as follows: 13(a): Add at
the end of Paragraph 13(a): ", except for reasonable wear and tear and damage by
fire and other insured casualty."
19(c): Delete from Paragraph 19(c) the words "improper or objectionable" and
substitute the words "in conformity with the uses permitted under Paragraph 34
of the Rider" in lieu thereof.
19(e): Add at the beginning of Paragraph 19(e): "Lessor and Lessee hereby
release the other from any and all liability or responsibility to the other or
any one claiming through or under them by way of subrogation or otherwise for
any loss or damage to property covered by any insurance then in force, even if
such fire or other casualty shall have been caused by default or neglect of the
other party or anyone for whom such party may be responsible; provided, however,
that this release shall be applicable and in force and effect only to the extent
of and with respect to any loss or damage occurring during such time as such
policy or policies of insurance covering said loss shall contain a clause or
endorsement to the effect that this release shall not adversely impair said
insurance or prejudice the right of the insured to recover thereunder." In
addition, delete from Paragraph 19(e) the words "and all liability policies."
19(f): Add at the end of Paragraph 19(f): "Notwithstanding the foregoing, the
security interest granted to Lessor shall be subject and subordinate to any
security interest now or hereafter granted by Lessee in Lessee's goods and
property in, on or about the demised premises to the extent that such security
interest is granted by Lessee either to (a) a person financing (by purchase or
lease) any furniture, fixtures, equipment or other personal property of Lessee
within the demised premises or (b) any commercial banking institution or other
person who provides to Lessee a primary credit facility in connection with
Lessee's business activities. In addition, Lessor shall, from time to time upon
request of Lessee, execute and deliver to the persons described in clauses (a)
and (b) above, a Subordination of Landlord's Lien Agreement in such form as
reasonably shall be requested by such persons."
20(a): Add at the end of Paragraph 20(a): "and such failure continues for more
than five (5) days following written notice from Lessor to Lessee."
20(b): Add at the end of Paragraph 20(b): "and such violation or failure
continues for more than fifteen (15) days following written notice from
Lessor to Lessee or such longer period as may reasonably be required if the
violation or failure is not capable of cure within said fifteen (15) day
period and within said fifteen (15) day period Lessee commences and
diligently prosecutes to completion a cure of the violation or failure."
20(1) & (2): Modify Paragraph 20, clauses (1) and (2) to provide that
Lessor shall only be entitled to recover from Lessee all rents and other
charges or payments herein reserved that become due prior to the date of
termination of Lessee's right of possession under the Lease, together with
the net present value of (a) all rent and (b) other charges and payments
reserved under the Lease (as reasonably estimated by Lessor) for the
balance and remainder of the term thereof.
25: Delete the words "five (5) days' notice" and substitute the words
"notice periods specified in the Lease" in lieu thereof.
29: Add at the end of Paragraph 29: "Notwithstanding the foregoing, Lessor
shall use commercially reasonable efforts to obtain from all persons now
holding a mortgage or other encumbrance upon the demised premises a
Non-Disturbance Agreement in form reasonably acceptable to such persons.
Lessee's agreement to subordinate its rights under the Lease to persons
hereafter acquiring a mortgage or other encumbrance upon the demised
premises is conditioned upon Lessee receiving a Non-Disturbance Agreement
from such persons in form reasonably acceptable to such persons."
40. Lessee agrees to pay immediately to Lessor a late charge of four (4%)
percent of the gross monthly rental for rents not received by Lessor within ten
(10) days of the due date. All rents are due on the first business day of each
month. A charge of $50.00 is applicable for any checks returned from the bank,
for whatever reason.
If Lessee shall fail to pay when the same is due and payable any rent or
any additional rent or amounts or charges, then such unpaid amounts shall bear
interest from the due date thereof to the date of payment at the prime rate
announced from time to time by CoreStates Bank, N.A. plus 3% ("Lease Interest
Rate").
41. It is understood and agreed that Lessee is not responsible for any
commission payable to Xxxxxxxx Realty Corp. or EBI Commercial. Lessee represents
and warrants that it has not dealt with any broker or agent in negotiations for
or the obtaining of the Lease, other than Xxxxxxxx Realty Corp. and EBI
Commercial, and agrees to indemnify, defend and hold Lessor harmless from any
and all cost or liability for compensation claimed by any such broker or agent,
other then Xxxxxxxx Realty Corp. and EBI Commercial employed by it or claiming
to have been engaged by it.
42. Lessee agrees to pay as additional rent, in addition to the minimum rental
hereon reserved, all taxes due and payable, assessed or imposed
upon the demised premises during the term of the Lease, renewals or extensions
thereof.
Lessor shall submit to Lessee a copy of the tax xxxx authorized and
prepared by the tax authorities, as well as a xxxx prepared by Lessor as to
Lessee's amount of taxes due. Lessee shall at all times 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, as well as all rent, occupancy,
transportation, utility, use, amusement or vending machine taxes, now or
hereafter imposed. Said taxes shall be paid by Lessee to Lessor at least one (1)
month before the expiration of the net payment period of said taxes and before
penalties are assessed. The amount due hereunder on account of such taxes shall
be apportioned for that part of the first and last fiscal years covered by the
term hereof of the county, township, and school real estate taxes. Lessee shall
reimburse Lessor for Lessee's proportionate share of any prepaid taxes for the
first fiscal tax year covered by the term hereof upon occupancy of the demised
premises by Lessee. Lessor shall reimburse Lessee for Lessor's proportionate
share of any prepaid taxes for the last fiscal tax year covered by the term
hereof upon expiration of the term of the Lease.
In the event Lessee desires to take advantage of any early payment
discount, then said tax payment shall be paid by Lessee to Lessor at least
thirty (30) days before the expiration of any discount period. A xxxx submitted
by Lessor to Lessee shall be conclusive evidence of the amount of taxes due and
payable, assessed or levied, as well as the items taxed.
43. Lessor shall maintain during the entire term hereof, at Lessee's cost and
expense, a fire and extended coverage insurance policy with respect to the
demised premises. Such insurance shall be an All Risk Replacement Cost Policy
which shall include as a minimum eighty (80%) percent of the replacement cost of
the building, including any remodelization work, and cover as a minimum Fire,
Extended Coverage, Vandalism and Malicious Mischief, Sprinkler, Rent, Sign and
Boiler. Lessee agrees to pay as additional rent, in addition to the minimum
rental hereon reserved, the cost of such fire and extended coverage policy
maintained by Lessor. Lessor shall submit to Lessee a copy of the insurance
premium invoice, as well as a xxxx prepared by Lessor as to Lessee's amount of
payment due, and Lessee shall at all times be responsible for and pay before
delinquency such amounts. The amount due hereunder on account of such insurance
premiums shall be apportioned for that part of the first and last fiscal years
covered by the term hereof. Lessee shall reimburse Lessor for Lessee's
proportionate share of any prepaid insurance premiums for the first fiscal year
covered by the term hereof upon occupancy of the demised premises by Lessee.
Lessor shall reimburse Lessee for Lessor's proportionate share of any prepaid
insurance premiums for the last fiscal year covered by the term hereof upon
expiration of the term of the Lease.
Lessee shall maintain at Lessee's sole cost and expense (a) a commercial
general liability policy with respect to the operations of
Lessee in the demised premises and (b) such additional fire and extended
coverage insurance with respect to Lessee's property as Lessee shall deem
necessary. The liability policy maintained by Lessee shall contain limits of not
less than $1,000,000.00 per occurrence. The policy shall name Lessee as the
insured party, name Lessor and any persons, firms or corporations designated by
Lessor as additional insured parties, and shall contain a clause that the
insurer will not cancel or change the insurance without first giving Lessor
thirty (30) days prior written notice, sent by U.S. Certified Mail, Return
Receipt Requested. The insurance carrier and the form and substance of the
liability policy shall be to the satisfaction of Lessor and a Certificate of
Insurance shall be delivered to Lessor. The insurance carrier shall be a
responsible insurance carrier authorized to do business in the State of
Pennsylvania. It shall have a policy holders rating of no less than "A" in the
most current edition of Best's Insurance Report.
44. In compliance with Paragraph 15(c) of the Lease, and any other applicable
provisions contained herein, it is understood and agreed that Lessee will not
install any signs without having first received written permission from Lessor,
and will be solely responsible for any cost and effort as may be required for
the installation of signs on the building or within the demised premises. Lessor
agrees that it will not unreasonably withhold its consent to Lessee's request to
install such signs and that such consent shall be deemed given if Lessee's
proposed signage plan is in conformity with the requirements of Whitemarsh
Township Zoning Ordinance and other applicable laws and regulations. Lessee's
responsibility includes the purchase, installation, maintenance, upkeep, and
removal if requested by Lessor (and repair after removal of any damage caused by
signs), of any such sign(s). Further, Lessee is responsible to obtain any pay
for any governmental licenses and/or permits, as may be required for any such
sign(s). All signs of Lessee shall be maintained by Lessee, and kept in proper
order including lighting, repairs and/or repainting. Lessor makes no
representation as to whether or not signage, or the type or size of signage is
permitted by governmental authorities at the demised premises or the building.
45. Except as otherwise expressly provided herein, Lessee, at Lessee's expense,
shall comply with all laws, rules, orders, ordinances, directions, regulations,
and requirements of federal, state, county and municipal authorities, now in
force or which may hereafter be in force, which shall impose any duty upon
Lessor or Lessee with respect to the use, occupation or alteration of the
demised premises. This shall include, but will not be limited to, obtaining
whatever permits and/or licenses which may be required by Lessee to operate from
this location, any permits and/or licenses which may be required for the
location, any permits and/or license which may be required for the installation
of signs, and compliance with the Americans with Disabilities Act relating to
Lessee's use and occupancy of the demised premises. Notwithstanding the
foregoing or any contrary provision of Paragraph 14(c) of the Lease, Lessor and
not Lessee, at Lessor's sole cost and expense shall be responsible for the cost
of complying with the requirements of all applicable governmental laws and
regulations in effect on the date of commencement of the Lease applicable to the
demised premises generally
and not occasioned by any particular use or occupation of the demised premises
by Lessee. Lessor also shall be responsible, at Lessor's sole cost and expense,
for all capital expenditures required to retrofit any portion or all of the
demised premises to comply with a change in existing governmental laws and
regulations or interpretation of existing laws and regulations or required by
future governmental laws and regulations during the term of the Lease, provided
that Lessee shall pay to Lessor as additional rent hereunder in the year the
cost is incurred and in subsequent years during the term hereof the amortized
portion (on a straight line basis over the anticipated useful life of the
improvement using the Lease Interest Rate) of the cost of capital expenditures
incurred by Lessor as required by future governmental laws and regulations.
46. Lessee will indemnify Lessor and save it harmless from and against any and
all claims, actions, damages, liability, and expense in connection with loss of
life, personal injury, and/or damage to the property arising from or out of any
occurrence in, upon, or at the demised premises or the occupancy or use by
Lessee of the demised premises or any part thereof, or occasioned wholly or in
part by any act or omission of Lessee, its agents, contractors, employees,
servants, or concessionaires. In case Lessor shall, without fault on its part,
be made a party to any litigation commenced by or against Lessee, Lessee shall
protect and hold Lessor harmless and shall pay all costs, expenses, and
reasonable attorney's fees incurred or paid by Lessor in connection with such
litigations. Lessee shall also pay all costs, expenses, and reasonable
attorney's fees that may be incurred or paid by Lessor in enforcing the
covenants and agreements in the Lease.
47. Lessor's responsibility under the Lease shall be limited to its interest in
the building, and no members of Lessor's partnership shall be personally liable
hereunder. Lessee agrees to look solely to Lessor's interest in the demised
premises and in the building for the collection of any judgment, and in entering
any such judgment, the person entering same shall request the prothonotary to
xxxx the judgment index accordingly. If the demised premises or the building is
transferred or conveyed, Lessor shall be relieved of all covenants and
obligations under the Lease thereafter, provided that notice of said transfer or
conveyance is given to Lessee by Lessor.
48. Except as previously disclosed by Lessor to Lessee with respect to certain
underground fuel and waste storage tanks that have been removed by Lessor,
Lessor represents and warrants to Lessee that to the best of Lessor's knowledge
that no hazardous waste or hazardous substances, or other substances contrary to
the Department Of Environmental Resources (DER), the Environmental Protection
Agency (EPA), or any other federal, state, or local authority having
jurisdiction, have been previously buried or dumped on the demised premises.
Lessor shall be responsible for remediating, and shall indemnify and hold Lessee
harmless from and against any environmental condition existing at or on the
demised premises at the commencement of the term of the Lease. At Lessee's
election, Lessee may prior to the commencement of the term of the Lease, at
Lessee's sole cost and expense, obtain an environmental report of the
condition of the demised premises. If so obtained by Lessee, Lessee shall
deliver to Lessor a copy of the environmental report.
Prior to the commencement of the term of the Lease, Lessee shall supply
Lessor with the MSDS (Material Safety Data Sheet) for all chemicals and
materials to be used in the research, development manufacturing or processing of
Lessee's product. From time to time during the term hereof, Lessee shall deliver
to Lessor the MSDS for any new or additional chemicals and materials used by
Lessee in the demised premises.
At or prior to the expiration of the term of the Lease, Lessor may, at
Lessor's election and expense, obtain an environmental report to determine
whether or not there has been any contamination of the demised premises by
Lessee during the term of the Lease. In the event that it is determined that
during the term of the Lease any hazardous materials have been introduced to the
property by Lessee, its agents, servants, workmen, employees, invitees, and/or
third party independent contractors or levels have increased on the property,
then Lessee agrees to clean up or remove said items at Lessee's sole cost. In
the event that clean-up or removal cannot be accomplished by the end of the term
of the Lease, then the term shall be automatically extended for such period as
it takes to remove or clean up the items found. During this extended term, all
terms and conditions of the Lease shall remain in full force and effect with the
exception that the rental shall be increased by the sum of ten (10) percent over
the rental in effect immediately prior to the end of the original term of the
Lease. After removal or clean-up of the items in question, the final report
shall be prepared demonstrating that the demised premises are in the same
condition as existed prior to Lessee's. use of the demised premises.
During the term of the Lease, Lessee shall comply with all present and
future federal, state and local laws, codes, ordinances, regulations and permits
and licenses conditions governing the discharge, emission or disposal of any
pollutant in, to or from the premises, other premises or the environment and
prescribing methods for storing, handling or otherwise managing hazardous
substances and wastes including, but not limited to the then-current versions of
following statutes, their state analogs, and the regulations implementing them:
The Resource Conservation and Recovery Act (42 U.S.C. 1251 et seq.); the Clean
Air Act (42 U.S.C. et seq.); and the Toxic Substances Control Act (15 U.S.C.
2601 et seq.). Lessee shall obtain all permits, licenses and approvals required
under federal, state and local laws, codes, ordinances and regulations. Lessee
shall give prompt written notice to Lessor of any violation of any such law,
code, ordinance, or regulation by Lessee, its subtenants, licensees or
concessionaires, whether or not a citation or other notice of violation has been
issued by a governmental authority, and shall take all steps necessary to remedy
such violation.
Lessee, upon expiration or termination of the Lease, shall render to Lessor
the Premises in clean condition and free from the presence and
contamination of any hazardous substances or wastes, excepting any contamination
as may have existed at the commencement of the term of the Lease.
To the extent permissible by law, Lessee shall accept full responsibility
for and protect, defend, indemnify an[d] save harmless Lessor, its officers,
agents and employees from and against any and all claims, actions, suits,
losses, damages, liability and expenses of any character including, but not
limited to, costs of investigation, remediation, consequential damages,
including loss of rent with respect to the demised premises, fines or penalties,
and legal fees in connection with (but not limited to): loss of life, personal
or bodily injury, disease, sickness, mental distress and/or damage to any
property (including the loss of use resulting therefrom) or to the environment
arising or resulting during or subsequent to the lease term from or out of any
conduct, activity, act, omission or operation by Lessee involving the use,
handling, generation, treatment, storage, disposal, other management or release
of any hazardous substance or waste at or from the demised premises.
49. During the term of the Lease, and any extensions or renewals thereof, Lessor
shall, at Lessor's sole cost and expense, make any and all necessary capital
repairs and replacements to the interior and exterior structural elements of the
demised premises, the surface of the roof and the HVAC System, electrical
transformer and the water and sewer laterals servicing the demised premises.
Lessor's obligation to make such repairs or replacements if necessary shall not
extend to any damage caused by Lessee, it's agents, employees, and/or invitees
or caused by Lessee's failure to provide routine servicing of the equipment or
systems as required by the manufacturers or service companies thereof or
suggested considering the intended and actual use of the premises or caused by
any excessive or abusive use of the equipment or systems. In this event, any
such intended repairs or replacements, if necessary, shall be borne exclusively
by Lessee. To the extent that alterations or improvements to the demised
premises desired by Lessee require penetration of the use of the roof surface or
the structural elements of the demised premises, all such work shall be
coordinated and performed, at Lessee's cost and expense, by Lessor or by a
contractor selected or approved by Lessor.
50. Prior to the commencement of the term of the Lease, Lessor shall provide at
Lessor's cost and expense all labor, materials and expertise necessary for the
renovation and improvement of the interior and exterior of the demised premises
as described on Exhibit "A" attached hereto and made a part hereof and Lessor
shall construct those interior walls indicated in red on Exhibit "B" attached
hereto and made a part hereof. All such work shall be done by Lessor in a
timely, good and xxxxxxx like manner. In connection therewith, Lessor shall
obtain at Lessor's cost and expense all necessary governmental permits and
approvals required to perform such work. Lessee shall at Lessee's cost and
expense perform whatever additional renovation and improvement of the demised
premises as may be necessary for Lessee's occupancy and use of the demised
premises.
Lessee shall coordinate with Lessor the construction of Lessee's renovation and
improvement work and the installation of Lessee's furniture, fixtures and
equipment in the demised premises. Lessee shall be solely responsible for
transportation, safekeeping and storage of materials and equipment used in the
performance of the work by Lessee's separate contractors and for any damage
caused by Lessee's separate contractors to the work performed by Lessor.
Lessor shall have the right of approval of all plans and materials before
construction, and before any work shall commence, which approval shall not be
unreasonabl[y] withheld. Lessor's approval of any plans, specifications and/or
working drawings for Lessee's alterations or improvements shall create no
responsibility or liability on the part of Lessor for their completeness, design
sufficiency, or compliance with all laws, rules and regulations now in force, or
which may hereafter be in force of governmental agencies or authorities. Lessee
shall also submit completed As-Built plans to Lessor upon completion of any
remodeling.
It is agreed and understood that Lessee shall be solely responsible for all
costs incurred in connection with the alterations and improvements to the
demised premises performed by Lessee, including, but not limited to, plans,
engineering work, construction, remodeling, architectural fees, building
permits, sewer permits, licenses, use and occupancy permits, and all incidentals
thereto, which may be required by the Whitemarsh Township, or any governmental
authority.
51. Inasmuch as the demised premises contains a wet sprinkler system and to the
extent that the demised premises is sprinkled, Lessee agrees to provide any
periodic maintenance of said sprinkler system as required from time to time.
Further, any damages resulting from the activation of the sprinkler system
within the demised premises or any failure of the sprinkler system to adequately
function shall be at the absolute risk of Lessee, with no obligation to Lessor
resulting thereof. Lessee shall pay for all maintenance, including any fire
service charge, water company charge, and any monitoring for the sprinkler
system. Also, Lessee shall maintain heat in the demised premises so as to
prevent the sprinkler system from freezing.
It is further [a]greed and understood that said sprinkler system is
designed for a Class 2 type of building use, and should Lessee desire or should
Lessee need other than the Class 2 system, then (a) Lessee must receive
permission from Lessor and (b) said sprinkler system will be changed and
maintained at Lessee's sole cost and expense to satisfy Lessor and all
governmental and local Fire Xxxxxxxx regulations concerning same.
52. Lessee shall be solely responsible for, agrees to contract with, and
promptly pay all charges for heat, water, gas, sewer, electricity, trash,
telephone, or any other utility or other service rendered, used or consumed in
the demised premises, and service inspections made thereof, whether called
charge, tax, assessment, fee or otherwise.
Lessee shall also pay any "fire company charge" imposed with respect to the
premises.
Should Lessor elect to supply the water, gas, heat, electricity, trash,
sewer or any other utility used or consumed in the demised premises, Lessee
agrees to purchase and pay for the same as additional rent at rates which will
not exceed those rates filed by the proper regulatory authorities. In no event
shall Lessor be liable for an interruption or failure in the supply of any such
utilities to the demised premises. Should Lessee fail to make these payments
when due, Lessor shall have the right to settle therefore such sums to be
considered additional rent and collectible from Lessee as such by distress or
other process, and to have all the priorities given by law to claims for rent.
Lessee further covenants and agrees throughout the term of the Lease, any
extensions or renewals thereof, that, except as otherwise provided in the Lease
as to repairs and replacements that are the responsibility of Lessor, Lessee
will be responsible to maintain the demised premises in good repair, order and
condition, at its sole cost and expense, including all floors, interior walls,
ceilings, doors of all types, locks, closures, and hinges, all lighting
(including the replacement of light bulbs) and all glass including windows,
making all routine repairs and/or replacements thereto as may be required or
necessary, with materials of like quality.
In addition, Lessee herein shall be responsible to have the heating system
serviced a minimum of once a year and the air conditioning system/units serviced
at least four (4) times per year or at such more frequent intervals as may be
required or suggested considering the intended and actual use of the premises by
the manufacturers or service companies thereof or suggested considering the
intended and actual use of the premises. Said servicing shall be at the sole
cost and expenses of Lessee, shall be performed by a reputable heating and/or
air conditioning contractor, and copies of said contract shall be submitted to
Lessor by Lessee annually. Should Lessee fail to service said systems, then this
work may be done by Lessor, and immediate payment as well as a service charge of
ten (10%) percent shall be due from Lessee for such work and/or repairs.
Further, Lessee shall be responsible for the cleanliness of the demised
premises and shall be responsible, at Lessee's sole cost and expense, for the
separation, recycling, and removal of Lessee's waste materials to conform with
any and all governmental rules and regulations thereto. Lessor shall have the
right to designate the location of all dumpsters, and Lessee agrees to comply
with all Board of Health rules and regulations.
Lessee covenants throughout the term hereof at its sole cost and expense to
keep the entire demised premises clean and free from snow, ice, dirt, weeds,
graffiti, rubbish and maintain the landscaping and parking lots.
53. Lessee shall have exclusive use of all driveways and parking areas as may
exist or as may be installed by Lessor during the term of the Lease. Lessee
shall be responsible to maintain the parking lot after Lessor has repaired and
sealed said parking lot as described on Exhibit "A" attached hereto and Lessee
agrees to be responsible and maintain the common areas during the term of the
Lease, extensions, renewals or additions. The responsibility includes repairs or
replacements as a result of normal wear and tear.
54. Outside storage of any kind is not permitted on any portion of the property,
except as permitted by applicable Whitemarsh Township laws and regulations.
55. Any improvements which Lessee may require within the demised premises other
than stated in the Lease may not be accomplished without the advanced written
permission of Lessor, which permission shall not be unreasonably withheld.
Lessor's approval/permission of any improvements, alterations, plans and/or
working drawing shall create no responsibility or liability on the part of
Lessor for the completeness, design sufficiency, or compliance with laws, rules
or regulations now in force, or which may hereafter be in force of governmental
agencies or authorities. This includes any installation of any electronic
devised (security systems, fire or intercommunications systems) as well as any
decorative furnishings.
Should Lessee install a security system of any type in Lessee's demised
premises, then said security system shall remain a part of the real estate and
be turned over to Lessor at the termination of the Lease, including any keys
and/or combinations, without any cost to Lessor, for his use or for use by
subsequent tenants. Should Lessee remove said security system or be given
permission to remove said security system by Lessor, then it shall be Lessee's
obligation at their sole cost and expense to replace any and all moldings on
windows, doors and walls which have been penetrated by the installation of the
security system to their original condition.
At the termination of the Lease, any such improvements or additions
installed at the sole cost and expense of Lessee (but not including any of the
alterations and improvements set forth on Exhibit "A" attached hereto) may, at
the option of Lessor, be removed from the demised premises leaving said demised
premises in its original condition, less normal wear and tear and damage by fire
or other insured casualty, or said improvements and/or addition[al] may be left
within the demised premises for the beneficial use of the following occupant, at
no cost or expense to Lessor or to the following occupant.
56. Either party shall, at any time and from time to time, within twenty (20)
days following the written request from the other, execute, acknowledge, and
deliver to the requesting party a written statement certifying that the Lease is
in full force and effect and unmodified (or, if modified, stating that nature of
such modification), certifying the date to which the rent reserved hereunder has
been paid, and
certifying that there are not, to the certifying party's knowledge, any uncured
defaults or unpaid charges on the part of the other party, or specifying such
defaults or unpaid charges if any are claimed, and certifying such other
information as the requesting party shall reasonably request. Any such statement
may be relied upon by any lending institution or by any prospective purchaser or
mortgagee on all or any part of the building or land on which the building is
situated. The failure to deliver such statement within said twenty (20) day
period shall be conclusive that the Lease is in full force and effect and
unmodified, and that there are no uncured defaults in requesting party's
performance hereunder.
57. Lessor and Lessee anticipate that construction of the alterations and
improvements described on Exhibit "A" attached hereto will be completed on or
before November 1, 1994. If Lessor shall be unable to give possession of the
demised premises on the date of the commencement of the term hereof by reason of
the fact that the building has not been sufficiently completed (subject to
normal punch list items) to make the demised premises ready for occupancy, or
for any other reason, Lessor shall not be subject to any liability for the
failure to give possession on said date; provided that if the demised premises
are not ready for Lessee's occupancy (subject to normal punch list items) by
November 30, 1994 (for reasons other than the fault or neglect of Lessee),
Lessee may by written notice to Lessor terminate the Lease. Under such
circumstances the rent reserved and covenanted to be paid herein shall not
commence until the possession of demised premises is given or the premises are
available for occupancy by Lessee, and no such failure to give possession on the
date of commencement of the term shall in any other respect affect the validity
of the Lease or the obligation of Lessee hereunder, nor shall same be construed
in any way to extend the term of this Lease, which, subject to Lessee's rights
of early termination and renewal as expressed in Paragraphs 35 and 36 of this
Rider, shall expire on October 31, 1999. In the event that Lessor completes its
renovation of the demised premises and Lessee takes possession and uses the
demised premises prior to November 1, 1994, Lessee's obligation to pay rent and
the other charges and payments reserved herein shall commence on the date on
which Lessee takes possession of and commences using the demised premises.
Notwithstanding the foregoing, Lessee shall be permitted to occupy the demised
premises prior to November 1, 1994, for the purpose of performing Lessee's
alterations and improvements to the demised premises in the manner set forth in
Paragraph 50 of this Rider, without obligation to pay rent or other charges to
Lessor other than a fair apportionment of charges for electricity, water and
other utilities used by Lessee in connection with such alterations and
improvements.
58. Notwithstanding any other provisions in the Lease contained, any notices
required to be given to either party under the terms of the Lease shall be in
writing and shall be sent by Registered or Certified Mail, Return Receipt
Requested, or by a nationally recognized overnight courier services as follows:
to Lessor: Xx. Xxxxxxx X. Xxxxxx
000 Xxxxxx Xxxx
Xxxx Xxxx, XX 00000
with a copy sent to: Xxxxxx X. Xxxxxxxxxxx
Xxxxxxxx Realty Corp.
000 Xxxx Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
or such other address as Owner shall designate in writing, to Lessee prior to
commencement date:
Xx. Xxxxx X. Xxxxxx
0000 Xxxxx Xxxx
Xxxxxx Xxxxx, XX
00000
to Lessee following the commencement date:
Xx. Xxxxx X. Xxxxxx
Hope Technologies, Inc.
0000 Xxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
59. Lessee shall have the right of first refusal on the sale of the demised
premises. Should Lessor during said period receive an acceptable offer to sell
the demised premises, then Lessor shall submit a copy of said offer in writing
to Lessee, who shall have a period of twenty (20) days to meet the same
conditions and terms of said offer, and notify Lessor that Lessee wishes to
exercise said right of first refusal by signing a similar Agreement under the
same terms and conditions as set forth in Lessor's offer to sell. If Lessee does
not sign said Agreement within said twenty (20) day period, then Lessor may sell
said premises. In addition, Lessee shall have the right and option to purchase
the demised premises upon six (6) months prior written notice to Lessor at any
time following the expiration of the fourth year of the term of the Lease or at
any time during the renewal term, if any upon terms and conditions agreeable to
both parties which is expressed in an agreement of sale executed by the parties
within 60 days of Lessee's notice to exercise the option. Both parties shall
negotiate in good faith in this respect. If written agreement is not executed
within said period, this option shall terminate with no further liability to
either party.
60. It is agreed and understood that Lessee may, at Lessee's election, install a
security system in the demised premises at Lessee's sole cost and expense.
61. Lessor/Lessee hereby certifies that Lessor/Lessee is not a non-resident
alien, or foreign corporation, a foreign partnership, a foreign trust, or a
foreign estate (as these terms are defined in the Internal Revenue Code and
Income Tax Regulations); that Lessor's/Lessee's home or office address are as
shown in Part I of the Lease Agreement. Lessor/Lessee acknowledges that this
certification may be disclosed to the Internal Revenue Service pursuant to
federal law.
62. Lessor and Lessee acknowledge that during the term of the Lease, Lessee may
require an expansion of the demised premises to accommodate a growth of Lessee's
future business operations. In such event, Lessee may request that Lessor
construct an addition to the demised premises to the
extent permitted by applicable zoning and other laws and regulations and
assuming that Lessor can obtain acceptable financing for the cost of such
addition. Lessor and Lessee shall meet and discuss in good faith the feasibility
of Lessor's constructing the addition to the demised premises and the rent and
other charges to be paid by Lessee in connection therewith.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement this July
22, 1994.
Witness: Hope Technologies, Inc.
/s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxxx
------------------------ -------------------------------
Name: Xxxxx X. Xxxxxx
Title: President & CEO
Witness: PMP Whitemarsh Associates
By: /s/ Xxxxxxx X. Xxxxxx
------------------------ -------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Partner
