COMMERCIAL LEASE AGREEMENT - 12/16/96
Intending to be legally bound, this Agreement made the sixteenth (16th) day
of December, 1996, by and between DEVEREUX PROPERTIES, INC. (hereinafter called
"Landlord") and CFM TECHNOLOGIES, INC. (hereinafter called "Tenant").
1. TERM, MINIMUM RENTAL. Landlord hereby demises and lets unto Tenant all
that certain office space comprised of approximately 13,941 square feet, on the
first (1st) floor of the building known as 1380 Enterprise Drive, Goshen
Corporate Park, Xxxx Xxxxxx Xxxxxxxx, Xxxx Xxxxxxx, XX 00000 to be used and
occupied only as a lawful and proper office for Tenant's business for the term
of five (5) years commencing on the eighteenth (18th) day of December, 1996 and
terminating on the seventeenth (17th) day of December, 2001 unless terminated
earlier as provided hereunder. The initial annual minimum rental shall be in the
amount of one hundred twenty one thousand nine hundred eighty three and 72/100
Dollars ($121,983.72) which the Tenant covenants to pay, without any previous
demand therefore, in equal monthly payments of ten thousand one hundred sixty
five and 31/100 Dollars ($10,165.31) on the first day of each month commencing
the first (1st) day of January, 1997, payable at the offices of Landlord as
specified in this Lease, or as may be designated by the Landlord. The first
month's rental obligation shall be tendered upon the signing of the lease.
Tenant is also responsible for any other obligation that may be due under this
lease or as specified in the Addendum attached hereto as Exhibit "A".
Rent for the month of December, 1996 shall be due and payable upon lease
execution and shall be computed on a per diem rate of three hundred thirty eight
and 84/100 Dollars ($338.84).
Subject to Landlord's and Tenant's right to terminate this lease as provided
under paragraph 25 herein, the minimum rent during the term of the lease shall
be as follows:
Year Minimum Annual Rent Minimum Monthly Rent
---- ------------------- --------------------
12/18/96-12/17/97 $121,983.72 $10,165.31
12/18/97-12/17/98 $121,983.72 $10,165.31
12/18/98-12/17/99 $126,863.10 $10,571.93
12/18/99-12/17/00 $131,742.45 $10,978.54
12/18/00-12/17/01 $136,621.80 $11,385.15
2. LICENSES, PERMITS, ETC. Tenant shall be solely responsible for obtaining
all licenses or permits, which may be required by any governmental agency or
authority in order for Tenant to lawfully conduct its business, which Tenant
shall obtain at its sole cost and expense.
3. INABILITY TO GIVE POSSESSION. If Landlord is unable to give Tenant
possession of the demised premises as herein provided, by reason of the holding
over of a previous occupant or by any other reasonable cause, Landlord shall not
be liable in damages to Tenant therefor, and during the period that Landlord is
unable to give possession, all rights and remedies of both parties hereunder
shall be suspended.
4. AFFIRMATIVE COVENANTS OF TENANT. Tenant covenants and agrees that it
will without demand:
(A) Pay the rent and all other charges herein reserved as rent on the
days and times that the same are made payable without fail, and without setoff,
deduction or counter-claim. Tenant shall pay a late charge at the rate of five
percent (5%) on each dollar of rent, or any other sum collectible as rent under
this lease, not paid within ten (10) days after the same is due. If Landlord
shall at any time or times accept said rent or rent charges after the same shall
have become due and payable, such acceptance shall not excuse delay, upon
subsequent occasions, or constitute, or be construed as a waiver of any of the
Landlord's rights. Tenant agrees that any charge or payment herein reserved,
included or agreed to be treated or collected as rent may be proceeded for and
recovered by Landlord in the same manner as rent due and in arrears.
(B) Comply with all 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 Tenant on its use of the demised premises,
and save Landlord harmless from all penalties, fines, costs or damages resulting
from Tenant's failure to do so.
(C) Comply with the rules and regulations from time to time made by
Landlord for the safety, care, upkeep and cleanliness of the demised premises
and the building and appurtenances of which it is a part. Tenant agrees that
such rules and regulations shall, when written notice thereof is given to
Tenant, form a part of this lease.
(D) Keep the demised premises in good order and condition, ordinary wear
and tear and damage by accidental fire or other casualty not occurring through
the action or negligence of Tenant or its agents, employees and invitees alone
excepted and upon termination of this lease to deliver up to Landlord the
demised premises in the same condition as Tenant has herein agreed to keep them.
(E) Give to Landlord prompt written notice of any accident, fire or
damage occurring on or to the demised premises within twenty-four (24) hours of
occurrence thereof.
(F) Peaceably deliver up and surrender possession of the demised
premises to Landlord at the expiration or sooner termination of this lease and
promptly deliver to Landlord at its office all keys for the demised premises.
(G) Conduct its business in the premises during normal business hours.
(H) Park its cars and cause its employees to park their cars only in
those portions of the parking area as may be designated for that purpose by
Landlord.
5. OCCUPANCY AND ASSIGNMENT. Tenant shall not occupy or permit to be
occupied the demised premises or any part thereof, other than as hereinbefore
specified. Tenant may assign or sublet the demised premises, or any part
thereof, with the written consent of Landlord, which shall not be unreasonably
withheld. If Tenant assigns or sublets all or a portion of the demised premises
after consent of the Landlord, Tenant shall remain liable for the faithful
performance of all terms and
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covenants of this lease. No such assignment to sublet shall relieve the Tenant
of any obligations hereunder.
6. NEGATIVE COVENANTS OF TENANT. Tenant covenants and agrees that it will
do none of the following without the consent of Landlord:
(A) Place or allow to be placed upon the demised premises or on the
inside or outside of the building of which the demised premises are a part any
sign, projection or device. In case of the breach of this covenant (in addition
to all other remedies given to Landlord hereunder), Landlord shall have the
right of removing such sign, projection or device and restoring the premises to
their former condition and Tenant shall be liable to Landlord for any and all
expenses including costs and attorney's fees so incurred by Landlord which at
the option of Landlord may be recovered in the same manner as rent. Landlord
agrees that Tenant may place a corporate identification sign on the face of the
building so long as Tenant secures a sign permit from East Goshen Township.
Landlord will place Tenant's identification on the building signboard at the
front of the property.
(B) 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 termination of this lease and become the
property of Landlord, unless Landlord shall, prior to the termination of this
lease, have given written notice to Tenant to remove the same, in which event
Tenant shall remove such alterations, improvements and additions or fixtures,
and restore the premises to the same good order and condition in which they were
upon initial occupancy. Should Tenant fail to do so, Landlord may do so
collecting, at Landlord's option, the complete cost, expense and attorney's fees
thereof from Tenant as additional rent.
(C) Use, operate or maintain any machinery, equipment or fixture that,
in Landlord's reasonable opinion, is harmful to the building and appurtenances
of which the demised premises is a part or is disturbing to the other tenants
occupying any other part thereof.
(D) Place any weights in any portion of the demised premises beyond the
safe carrying capacity of the building of which the demised premises is a part.
(E) Do, cause or suffer to be done, any act, maker 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. In case of a
breach of this covenant (in addition to all other remedies herein given to
Landlord) Tenant agrees to pay Landlord as additional rent any and all increase
or increases of premiums on insurance reasonably carried by Landlord on the
demised premises, or on the building and appurtenant land of which the demised
premises may be a part, caused in any way by the occupancy of Tenant.
(F) Remove, attempt to remove or manifest an intention to remove
Tenant'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 Landlord for all rent, costs and attorney's fees which
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may become due during the entire term of this lease, in addition to all sums
denominated as additional rent under this lease. Tenant hereby grants to
Landlord a security interest in Tenant's inventory, equipment and fixtures as
same is defined in the Pennsylvania Uniform Commercial Code as codified in 13 PA
C.S.A. et. seq.
(G) Shall not permit the demised premises to be used or occupied in a
congested manner. The number of people that shall use or occupy the demised
premises shall be reasonable for the size of the demised premises taking into
consideration the safety of the occupants, the burden that an unreasonable
number of occupants will place upon the electricity, heating and air
conditioning equipment, the congestion that would result in the common
facilities of said building and its appurtenances such as hallways, washrooms,
parking lot, etc. If in Landlord's opinion the demised premises are being used
or occupied by more people than is reasonable, Tenant agrees to reduce the
number thereof upon written demand of Landlord to the number that Landlord
determines to be reasonable for the demised premises.
7. LANDLORD'S RIGHT TO ENTER. Tenant shall permit Landlord, Landlord's
agents, cleaners, or employees or any other person or persons authorized by
Landlord, to inspect the demised premises at any time, and to enter the demised
premises for the purposes of cleaning and if Landlord shall so elect, for making
reasonable alterations, improvements or repairs to the building of which the
demised premises are a part, or for any reasonable purpose in connection with
the operation and maintenance of the building.
8. RELEASE OF LANDLORD. Tenant shall be responsible for and hereby relieves
Landlord from any and all liability by reason of any injury, loss, damage to any
person or property in the demised premises, whether the same be due to fire,
breakage, leakage, water flow, gas, use, misuse, or defects therein, or
condition anywhere in the demised premises, failure to water supply or light or
power or electricity, wind, lightning, storm, or any other cause whatsoever,
whether the loss, injury or damage be to the person or property of Tenant or any
other persons.
9. FIRE OR OTHER CASUALTY.
(A) If during the term of this lease or any renewal or extension
thereof, the demised premises or the building of which the demised premises is a
part is totally destroyed or is so damaged by fire or other casualty not
occurring through the fault or negligence of Tenant or those employed by or
acting for Tenant (whether or not the demised premises are damaged) that the
same cannot be repaired or restored within one hundred twenty (120) regular
working days from the date of the happening of such damage, or if such damage or
casualty is not included in the risks covered by Landlord's fire insurance with
the usual extended coverage, then this lease shall absolutely cease and
terminate and the rent shall xxxxx for the balance of the term. In such case,
Tenant shall pay the rent apportioned to the date of damage and Landlord may
enter upon and repossess the demised premises without further notice and with
the right to break in and take possession.
(B) If the damage caused as above can be repaired or restored within one
hundred twenty (120) regular working days and said damage and the cost of
repairs and restoration are fully covered by the Landlord's insurance, Landlord
may exercise either of the following options:
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(i) Landlord shall have the option to restore the premises for that
purpose and the rent shall be apportioned during the time Landlord is in
possession, taking into account the proportion of the demised premises rendered
untenantable and the duration of Landlord's possession; if a dispute arises as
to the amount of rent due under this clause, Tenant agrees to pay the full
amount claimed by Landlord and Tenant shall have the right to proceed by law to
recover the excess payment, if any.
(ii) Landlord shall have the option to terminate this lease by
giving written notice of such termination to Tenant within sixty (60) days after
said partial destruction; and upon the giving of such notice, the lease shall
expire by lapse of time after thirty (30) days and the Tenant shall vacate the
demised premises.
(C) If the damage caused as above is only slight, Landlord shall repair
whatever portion, if any, of the demised premises that may have been damaged by
fire or other casualty insured as aforesaid, and the rent accrued or accruing
shall not be apportioned or suspended.
(D) If said damage by fire or other casualty was caused by the action or
negligence of Tenant or his agent, employees or invitees, Tenant shall not be
entitled to any abatement or apportionment of the rent.
10. SERVICES. The following services and facilities shall be supplied by
Landlord to Tenant in connection with Tenant's use of the demised premises, in
common with other tenants of the building of which the demised premises are a
part:
(A) Heat and air conditioning equipment and facilities.
(B) Landlord shall supply the demised premises with electric and gas
service for heat, air conditioning, lighting and power to operate business
machines and equipment. Landlord shall furnish and install a meter for measuring
Tenant's electric and gas usage and Tenant shall pay utility company direct for
such usage. Landlord shall, at its expense, repair and maintain all building
equipment used to furnish lighting and power to the demised premises. Tenant
shall, at its expense, contract for regular maintenance of heating and air
conditioning equipment servicing the demised premises.
(C) Landlord shall have no responsibility or liability to Tenant, nor
shall there be any abatement in the said rent for any failure to supply and of
said services and facilities that Landlord has agreed to supply hereunder during
such period as the services and facilities are out of order, undergoing repair
or if prevented by labor disorders, strikes, accidents or other causes beyond
Landlord's control. If, in its sole discretion, Landlord deems it advisable or
convenient to interrupt any of said services in order to make repairs,
alterations or improvements or because of labor disturbances, strikes, accidents
or causes beyond Landlord's control, Landlord may do so for the period that
Landlord deems expedient and advisable without any abatement in rent or other
liability to Tenant.
11. REPAIRS. At the expiration or other determination of this lease or upon
abandoning the demised premises, Tenant shall lease the same, and during the
term shall keep the same in good order and condition, ordinary wear and tear and
damage by accidental fire or other casualty which fire or
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other casualty has not occurred through the negligence of Tenant or those
claiming under Tenant or their employees or invitees respectively, alone
excepted; and for that purpose Tenant shall make all necessary repairs and
replacements. Tenant shall also remove all dirt, rubbish, waste and refuse from
the demised premises and all its property therefrom, to the end that Landlord
may again have and repossess the same not later than noon on the day upon which
this lease or any renewal thereof or extension ends. Tenant shall not knowingly
do or commit or suffer or cause to be done or committed upon the demised
premises any act or thing contrary to the laws, rules, regulations or ordinances
prescribed from time to time by Landlord for the safety, care, upkeep,
maintenance and cleanliness of the demised premises.
12. ADDITIONAL RENT. Tenant shall 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 Tenant to comply with any and covenants of this lease and to pay any
and all damages, costs and expenses, including, but not limited to reasonable
attorney's fees which Landlord may suffer or incur by reason of any default or
failure on Tenant's part to comply with any and all the covenants of this lease.
13. LANDLORD'S REMEDIES. If Tenant:
(A) Does not pay in full when due any and all installments of rent and
or any other charges 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 the Tenant; 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 Landlord in full for all rent and other charges, expenses and costs
and attorney's fees then due or that may thereafter become due until the
expiration of the term, above mentioned; or
(D) Makes an assignment for the benefit of creditors; or whenever
Tenant seeks or consents to or acquiesces in the appointment of any trustee,
receiver or liquidator of Tenant or of all or any substantial part of its
properties; or whenever a permanent or temporary receiver of Tenant for
substantially all of the assets of Tenant shall be appointed; or an order,
judgment or an order, judgment or decree shall be entered by any court of
competent jurisdiction on the application of a creditor.
In any of the events hereinabove set forth there shall be deemed to be
a breach of this lease and thereupon ipso facto and without written notice or
other action by Landlord, at the sole option of Landlord;
(1) In addition to any rent and other charges already due and
payable, the rent for the entire unexpired balance of the term of this lease, as
well as all other charges, costs, expenses and attorney's fees herein to be paid
by Tenant or at the option of Landlord or anyone acting on Landlord's behalf at
Landlord's option, or any part thereof, shall be taken to be due and payable and
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in arrears, as if by the terms of this lease said rent, charges, costs and
expenses were on that day due and payable; and/or
(2) Landlord, or anyone acting on Landlord's behalf may, without
written notice or demand, enter the demised premises and:
(a) take possession of and immediately sell all goods and
chattels therein; or
(b) may remove from the demised premises all goods and chattels
found therein to any other place or location as Landlord may desire and any
costs incurred for said removal and any charges made for storage of said goods
and chattels at the location to which they are removed Tenant agrees to pay; or
(c) take immediate possession and may lease the demised premises
or any part to such person, company, firm or corporation as may in Landlord's
sole discretion seem best and Tenant shall be liable for any loss of rent for
the then current term.
The Tenant hereby releases and discharges Landlord, and its agent, from
all claims, actions, suits, damages and penalties, for or by reason or on
account of any entry, distraint, levy, appraisement, removal of said goods and
chattels or sale.
(3) This lease and the term hereby created shall determine and
become absolutely void without any right on the part of Tenant to save the
forfeiture by payment of any sum due or by other performance of any condition,
term or covenant broken; whereupon, Landlord shall be entitled to recover
damages and attorney's fees for such breach, in addition to all sums actually
due and in arrears hereunder as of the date of such breach as above provided in
an amount equal to the amount of rent reserved for the balance of the term of
this lease.
14. RIGHT OF ASSIGNEE OF LANDLORD. The right to enforce all of the
provisions of this lease may be exercised by any assignee of the Landlord's
right, title and interest in this lease in its, his, her or their own name, and
Tenant hereby expressly waives the requirements of any and all laws regulating
the manner and/or form in which such assignments shall be executed and
witnessed.
15. REMEDIES CUMULATIVE. All of the remedies hereinbefore given to Landlord
and all rights and remedies given to Landlord by law and equity shall be
cumulative and concurrent. No determination of this lease or the taking or
recovering of the premises shall deprive Landlord of any of its remedies or
actions against Tenant for any and all sums due at the time or which, under the
terms hereof would in the future become due, 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.
16. ATTORNMENT. In the event of the sale or assignment of Landlord's
interest in the building of which the demised premises is a part or in the event
of exercise of the power of sale under any mortgage made by Landlord covering
the building of which the demised premises is a part, Tenant shall attorn to the
purchaser and recognize such purchaser as Landlord under this lease.
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17. SUBORDINATION, ETC. At the option of Landlord or Landlord's permanent
lender, or both of them, this lease and the Tenant's interest hereunder shall be
subject and subordinate at all times to any mortgage or mortgages, deed or deeds
of trust, or such other security instrument or instruments, including all
renewals, extension, consolidations, assignments and refinances of the same, as
well as all advances made upon the security thereof, which now or hereafter
become liens upon the Landlord's fee and/or leasehold interest in the demised
premises, and/or any and all of the buildings now or hereafter erected or to be
erected and/or any and all of the land comprising the office building, provided,
however, that in each such case, the holder of such other security, the trustee
of such deed of trust or holder of such other security instrument shall agree
that this lease shall not be divested or in any way affected by foreclosure or
other default proceedings under said mortgage, deed of trust, or other
instrument or other obligations secured thereby, so long as the Tenant shall not
be in default under the terms of this lease; and Tenant agrees that this lease
shall remain in full force and effect notwithstanding any such default
proceedings.
18. EXECUTION OF DOCUMENTS. The above subordination shall be self executing,
but Tenant agrees upon demand to execute such other document or documents as may
be required by a mortgagee, trustee under any deed of trust, or holder of a
similar security interest, or any part to the types of documents enumerated
herein for the purpose of subordinating this lease in accordance with the
foregoing. Upon the expiration of ten (10) days after a formal written notice,
Tenant shall be deemed to have appointed Landlord and Landlord may execute and
deliver the required documents for and on behalf of Tenant.
19. ESTOPPEL AGREEMENTS. Tenant shall execute an estoppel agreement in favor
of any mortgagee or purchaser of Landlord's interest herein, if requested to do
so by any mortgagee. Such estoppel agreement shall be in the form requested by
such mortgagee or purchaser.
20. NO IMPLIED EVICTION. Notwithstanding any inference to the contrary herein
contained, it is understood that the exercise by Landlord of any of its rights
hereunder shall never be deemed an eviction (constructive or otherwise) of
Tenant, or a disturbance of its use of the demised premises, and shall in no
event render Landlord liable to Tenant or any other person, so long as such
exercise of rights is in accordance with the foregoing terms and conditions.
21. TIME TO REMEDY DEFAULT. Tenant shall have ten (10) days to cure any
default after written notification from Landlord.
22. LITIGATION INVOLVING LANDLORD AND AGENT. In the event that Landlord or
its Agent shall without fault on its part be made a party to any litigation
commenced by or against Tenant, then, and to such extent Tenant shall protect
and hold Landlord and Agent harmless from and against any liability arising
therefrom, and shall pay all of Landlord's costs, expenses and attorney's fees.
23. CONDEMNATION. If the whole of the premises shall be acquired or condemned
by eminent domain, then the term of this Lease shall cease and terminate as of
the date on which possession of the premises is required to be surrendered to
the condemning authority. All rent shall be paid up to the date of termination.
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24. NOTICES. All notices required to be given by either party to the other
shall be in writing. All such notices shall be deemed to have been properly
given if served personally or if sent by United States certified mail, postage
prepaid, addressed to Landlord at President, Devereux Properties, Inc., 00 X.
Xxxxxxxx Xxxx, X.X. Xxx 000, Xxxxx, XX 00000 and addressed to Tenant at Chief
Financial Officer, CFM Technologies, Inc., 0000 Xxxxxxxxxx Xxxxx, Xxxx Xxxxxxx,
XX 00000 or to such other address which either party may hereafter designate in
writing by notice given in a like manner.
25. TERMINATION OF LEASE. Either party hereto may determine the lease at the
expiration of the original term or any renewal or extension thereof by
delivering to the other party written notice of same no later than one hundred
twenty (120) days prior to the expiration of the then current term. In the
absence of such notice the lease shall then automatically continue for an
additional period of one (1) year under the same terms and conditions in force
immediately prior to the expiration of the then current term, and so on from
year to year until terminated by either party as herein provided. Any rental
allowance or other benefit granted Tenant by Landlord intended to apply only to
the original lease term shall not automatically carry over into any renewal or
extension thereof.
If Landlord shall have given Tenant written notice prior to the expiration
of any term hereby created of Landlord's intention to change the terms and
conditions of the lease and the Tenant shall not within thirty (30) days from
such notice notify Landlord of Tenant's intention to vacate the demised premises
at the expiration of the then current term, then Tenant shall be bound under the
terms and conditions set forth in such notice for a further term as above
provided, or for such further term as may be stated in said notice. In the event
that Tenant shall give notice, as stipulated in the Lease, of intention to
vacate the demised premises at the end of the then current term, and shall fail
or refuse to do so on the date stipulated in said notice then it is expressly
agreed that Landlord 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 the Lease as set forth in Landlord's most recent
notice shall continue thereafter with full force precisely as if Tenant had not
given notice; or
(B) Landlord may, at any time within thirty (30) days after the then
current term, as aforesaid, give the Tenant ten (10) days written notice of
intention to terminate the Lease; whereupon the Tenant shall vacate the demised
premises at the expiration of said ten (10) day period. All powers granted to
Landlord by the Lease may be exercised and all obligations imposed upon Tenant
must be fulfilled as well during any extension of the original term of the lease
as during the original term itself.
Notwithstanding the foregoing to the contrary and in addition to other rights
described above, the parties hereto agree that either Landlord or Tenant may
terminate this lease at any time after June 18, 1998, such termination to be
effective June 18, 1998 or any time thereafter, upon six (6) months prior
written notice to the other party of its election to terminate this lease. Upon
either party's election to terminate this lease, neither Landlord nor Tenant
shall have any further obligations under this lease after the effective date of
the termination.
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26. HAZARDOUS MATERIALS. Tenant agrees not to cause or permit any hazardous
material to be discharged or brought upon, kept or used in or about the demised
premises or building or the land on which the demised premises are located, by
Tenant or Tenant's employees, agents, contractors or invitees. As used herein,
the term "hazardous material" shall mean any hazardous or toxic substance,
material or waste, including but not limited to, those substances, materials or
wastes now or hereinafter listed in the United States Department of
Transportation Hazardous Materials Table or by the Environmental Protection
Agency as hazardous substances, or such substances, materials or wastes that are
now or may become under any applicable federal, state or local law. If Tenant
permits any hazardous material to be brought upon, kept or used in or about the
demised premises, the building or the land on which the building is located that
the demised premises are a part, that results in contamination of the demised
premises or the building or the land on which the building is located that the
demised premises are a part, then the Tenant shall indemnify, defend and hold
Landlord harmless from any and all claims, judgements, penalties, or losses,
including but not limited to, damages or diminution in value of the demised
premises, the building or the land on which the building is located that the
demised premises are a part. This indemnification of Landlord by Tenant includes
but is not limited to costs incurred in connection with any investigation of
site conditions or clean-up, remedial removal or restoration work required by
any federal, state or local governmental agency or political subdivision because
of hazardous materials present in the demised premises, the building or the land
on which the building is located that the demised premises are a part, or the
soil thereon or ground water thereunder. Any failure by Tenant to promptly take
all actions at the request of Landlord or any governmental authority to cease
the storage, use or discharge of hazardous materials shall constitute a default
under the terms of this Lease. Notwithstanding the foregoing to the contrary,
Landlord agrees that Tenant may at any time store and use up to ten (10) gallons
of isopropyl alcohol in connection with Tenant's operations. Tenant shall remain
obligated for any liability associated therewith and shall use the same in a
careful and cautious manner.
27. RIGHT OF FIRST REFUSAL. Landlord hereby grants to Tenant a right of first
refusal for any unleased, contiguous space adjacent to the demised premises. In
the event that Landlord receives a bona fide offer to lease any portion of the
then unleased, contiguous space, then Landlord shall first offer this space to
lease to Tenant in writing together with a copy of the bona fide offer. Tenant
shall have five (5) working days from receipt of written notice from Landlord of
the bona fide offer in which to exercise its right of first refusal for the
additional space. If Tenant exercises its right of first refusal, the additional
space shall be leased to Tenant at the annual minimum rental rate per square
foot equal to the rate per square foot that Tenant is paying for the demised
premises. Tenant shall then also pay additional operating expenses in accordance
with the Operating Expense Addendum (Exhibit "A") adjusted for the new square
footage leased to Tenant.
28. PARKING RULES AND REGULATIONS. Landlord agrees to promulgate Rules and
Regulations concerning the use of on-site parking spaces such that each tenant
occupying space in the building of which the demised premises are a part shall
have equitable access to such parking in proportion to the rentable area each
tenant leases in the building. It is understood and agreed that there will be
no specific dedicated or marked spaces for each tenant. All such parking spaces
shall be enjoyed by all tenants on a non-exclusive basis even though usage of
the parking spaces shall be controlled as indicated above.
10
29. FINANCIAL INFORMATION OF TENANT. Tenant shall at any time and from time
to time during the term of this Lease, within fifteen (15) days of written
request by Landlord, deliver to Landlord the most recent audited and unaudited
financial statements concerning Tenant and Tenant's business operations (and the
Guarantor of this Lease, if the Lease be guaranteed) as may be reasonably
requested by any mortgagee or prospective mortgagee or purchaser. If Tenant
fails to provide such statements promptly then, without limiting any other
remedy which Landlord may have for such failure, Landlord may thereupon
terminate this Lease on not less than ten (10) days' written notice.
30. INSURANCE-INDEMNITY. During the term of this Lease, Tenant, its assignees
and sublessees shall protect, defend, indemnify and save Landlord harmless from
any and all claims, penalties, or demands, including Court costs and attorneys'
fees, whatsoever arising, directly or indirectly, out of or from Tenant's use or
occupancy of the Premises.
Tenant shall keep in force, during the full term of this Lease or any renewal or
extension thereof, workmen's compensation insurance and public liability
insurance issued by a nationally recognized insurance company rated Best A+,
with such limits as may be reasonably requested by landlord from time to time,
but with minimum public liability limits not less than $1,000,000.00 for each
occurrence. Said policy shall name Landlord as an additional insured and
provide that it shall not be cancelled for any reason unless and until Landlord
is given fifteen (15) days' notice in writing by the insurance company. The
insurance policy or other evidence of coverage satisfactory to Landlord shall be
deposited with Landlord upon occupancy of Premises by Tenant.
Landlord and Tenant hereby release the other from any and all liability or
responsibility to the other or anyone claiming through or under them by way of
subrogation or otherwise for any loss or damage to property caused by fire or
any other perils insured in policies of insurance covering such property, even
if such loss or damage shall have been caused by the fault or negligence of the
other party, or anyone for whom such party may be responsible.
All of Tenant's policies of insurance shall contain waiver of subrogation
endorsements in favor of Landlord and copies of same shall be delivered to
Landlord upon request.
31. BINDING EFFECT. 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.
32. SEVERABLE TERMS. Each term, remedy, provision, condition, obligation
and/or waiver contained in this lease, or any amendment or supplement hereto, is
a separate and distinct covenant and, if any such term, remedy, provision,
condition, obligation and/or waiver is declared unenforceable or
unconstitutional, or invalid by any court of competent jurisdiction or by an
action of congress or by any other governmental authority, such decision,
statute, ordinance or regulation will not affect in any manner the
enforceability or validity of any other term, remedy, provision condition,
obligation and/or waiver contained herein, and they will remain in full force,
virtue and effect.
33. ENTIRE AGREEMENT. This lease and any riders that may be attached hereto
set forth all the promises, agreements, conditions and understandings between
Landlord or its agents and
11
Tenant relative to the demised premises, and there are no promises, agreements,
conditions or understandings, either oral or written, between them other than
are herein set forth. Except as herein otherwise provided, no subsequent
alteration, amendment, change or addition to this lease shall be binding upon
Landlord or Tenant unless reduced to writing and signed by them.
IN WITNESS THEREOF, the parties hereto, intending to be legally bound to the
terms of this Lease, have caused this lease to be executed the day and year
first above written.
CFM TECHNOLOGIES, INC. DEVEREUX PROPERTIES, INC.
(Tenant) (Landlord)
BY:/s/ Xxxxx X. Xxxxxxx BY:/s/ Xxxx Xxxxxx
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ATTEST:/s/ Xxxxx X. Xxxx ATTEST:/s/ Xxxxxx Xxxxxx
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12
EXHIBIT "A"
OPERATING EXPENSE ADDENDUM
ATTACHED TO and made a part of the Commercial Lease Agreement made the
sixteenth (16th) day of December, 1996, by and between DEVEREUX PROPERTIES, INC.
(Landlord) and CFM TECHNOLOGIES, INC. (Tenant).
1. PAYMENT. Tenant shall pay to Landlord an Operating Expense Allowance of
thirty three thousand three hundred eighteen and 99/100 Dollars ($33,318.99) per
year in equal monthly installments of two thousand seven hundred seventy six and
58/100 Dollars ($2,776.58), the first of which shall be payable upon execution
of this Lease. If the term of this Lease commences other than on the first day
of a calendar month, then the Operating Expense Allowance for the first calendar
month of the term of this Lease shall be adjusted proportionately, and the
aforesaid first installment paid by Tenant upon the execution of this Lease
shall be initially applied to the first partial month and the balance to the
succeeding month.
If Landlord's Operating Expense for any Operating Year shall be greater than
the total Operating Expense Allowance for such year, Tenant shall pay to
Landlord as additional rent an amount equal to Tenant's Proportionate Share of
the difference (the amount of Tenant's Proportionate Share of such difference is
hereinafter referred to as the "Operating Expense Adjustment"). If Tenant
occupies the demised premises or a portion thereof for less than a full
Operating Year, the Operating Expense Adjustment will be calculated in
proportion to the amount of time in such Operating Year that Tenant occupied the
demised premises.
Such Operating Expense Adjustment shall be paid in the following manner within
one hundred twenty (120) days following the end of the first and each succeeding
Operating Year, Landlord shall furnish to Tenant an Operating Expense Statement
setting forth (a) the Operating Expense for the preceding Operating Year; (b)
the Operating Expense Allowance; and (c) Tenant's Operating Expense Adjustment
for such Operating Year. Within fifteen (15) days following receipt of such
Operating Expense Statement (the "Expense Adjustment Date"), Tenant shall pay to
Landlord as additional rent the Operating Expense Adjustment for such Operating
Year.
Commencing with the first month of the second Operating Year, Tenant shall pay
to Landlord, in addition to the Operating Expense Allowance, on account of the
Operating Expense Adjustment for such Operating Year, monthly installments in
advance equal to one-twelfth (1/12) of the estimated Operating Expense
Adjustment for such Operating Year. On the next succeeding Expense Adjustment
Date, Tenant shall pay to Landlord (or Landlord shall credit to Tenant) any
deficiency (or excess) between the installments paid on account of the preceding
year's Operating Expense Adjustment and the actual Operating Expense Adjustment
for such Operating Year.
As used in this Addendum, the following words and terms shall be defined as
hereinafter set forth:
A. "Operating Year" shall mean each calendar year, or other period of twelve
(12) months as hereinafter may be adopted by Landlord as its fiscal year,
occurring during the term of the Lease.
B. "Operating Expense Allowance" shall mean and equal the monthly amount
hereinabove set forth.
C. "Operating Expense Statement" shall mean a statement in writing signed by
Landlord, setting forth in reasonable detail (i) the Operating Expense for the
preceding Operating Year; (ii) the Operating Expense Allowance; and (iii) the
Tenant's Operating Expense Adjustment for such Operating Year or portion
thereof. The Operating Expense Statement for each Operating Year shall be
available for inspection by Tenant at Landlord's office during normal business
hours.
D. "Operating Expense" shall mean the following expenses incurred by the
Landlord in connection with the operation, repair and maintenance of the demised
premises, the building of which it is a part and the land on which it is
located: (i) Real Estate taxes and other taxes or charges levied in lieu of such
taxes, general and special public assessments, charges imposed by any
governmental authority pursuant to anti-pollution or environmental legislation,
taxes on the rentals of the building in which the demised premises are located
or the use, occupancy or renting of space therein; (ii) premiums and fees for
fire and extended coverage insurance, insurance against loss of rentals for
space in the building of which the demised premises are a part and public
liability insurance, all in amounts and coverages (with additional policies
against additional risks) as may be required by landlord or the holder of any
mortgage; (iii) water and sewer service charges, electricity, heat and other
utility charges not separately metered to tenants in the building of which the
demised premises are a part; (iv) all maintenance and repair costs to all areas
of the building in which the demised premises are located, including repairs and
replacements of supplies and equipment, snow and trash removal and paving, lawn
and general grounds upkeep, maintenance and repair of all mechanical equipment
such as HVAC, elevators, electrical and plumbing equipment, and the costs of all
labor, materials and supplies incidental thereto; (v) the cost of providing
janitorial service and supplies for the entire building of which the demised
premises are a part, including all leasable areas and common areas such as
hallways, rest rooms, elevators, supply closets, etc.; (vi) wages, salaries,
fees and other compensation and payments and payroll taxes and contributions to
any social security, unemployment insurance, welfare, pension or similar fund
and payments for other fringe benefits required by law, union agreement or
otherwise made to or on behalf of all employees of landlord performing services
rendered in connection with the operation and maintenance of the building and/or
land within which the demised premises are locate, including, without
limitation, payments made directly to or through independent contractors for
performance of such services or for servicing or maintenance contracts; (vii)
management fees payable to the managing agent for the demised premises, if any,
and if there shall be no managing agent or if the managing agent is a company
affiliated with the landlord, the management fees that would customarily be
charged for the management of the building in which the demised premises are
located by an independent first class managing agent in the Philadelphia
suburban area; (viii) any and all other expenditures of Landlord incurred in
connection with the operation, repair or maintenance of the demised premises and
the building or land within which they are located which are property expensed
in accordance with generally accepted accounting principles consistently applied
in the operation, maintenance and repair of a first class office/industrial
building facility.
The term "Operating Expense" shall not include depreciation on the building or
equipment therein, interest, net income, franchise or capital stock taxes
payable by landlord, executive salaries, real estate broker's commissions or the
cost of services provided especially for any particular tenant at such tenant's
expense and not uniformly available to all tenants within the building of which
the demised premises are a part.
E. "Tenant's Proportionate Share" shall be thirty-six and 18/100 percent
(36.18%) which is equivalent to a fraction, the numerator of which shall be the
square feet of floor area of the demised premises and the denominator of which
shall be 38,528 square feet of all leasable floor area in the building of which
the demised premises are a part.
2. FINAL YEAR OF LEASE TERM. During the calendar year in which the term of
this Lease ends, Landlord shall have the right to submit to Tenant a statement
of Landlord's reasonable estimate of the Operating Expense Adjustment during the
period (the "Final Period") beginning on the first day of the final Operating
Year of the term or, if later, the date of the immediately preceding Operating
Expense Adjustment, and ending on the final day of the term of this Lease. Upon
the earlier to occur of the thirtieth (30th) day following Tenant's receipt of
such statement or the final day of the term of this Lease, Tenant shall pay to
Landlord said estimated Operating Expense Adjustment minus the total amount of
payments previously made by Tenant pursuant to Section 1 above during the final
period. If requested by Tenant, landlord shall submit to Tenant a statement
setting forth the actual amount of said Operating Expense Adjustment after
Landlord's final calculation of same, and within fifteen (15) days after
Tenant's receipt of such statement, Tenant shall pay to landlord any deficiency,
or, as the case may be, landlord shall refund to Tenant any overpayment
occasioned by Tenant's payment of the aforesaid estimate.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be
executed the day and year first above written.
CFM TECHNOLOGIES, INC. DEVEREUX PROPERTIES, INC.
(Tenant) (Landlord)
BY:/s/ Xxxxx X. Xxxxxxx BY:/s/ Xxxx Xxxxxx
-------------------------- --------------------------
ATTEST:/s/ Xxxxx X. Xxxx ATTEST:/s/ Xxxxxx Xxxxxx
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