SECOND LEASE RENEWAL AGREEMENT
______________________________
SECOND LEASE RENEWAL AGREEMENT made as of the last date endorsed hereon
between NAPPEN & ASSOCIATES, a Pennsylvania limited partnership t/a 309
DEVELOPMENT COMPANY ("Lessor")
A N D
DATARAM CORPORATION, a New Jersey corporation, duly registered to do
business in the Commonwealth of Pennsylvania ("Lessee").
Basis of Agreement
__________________
A. By Lease Agreement dated December 31, 2000, as amended by Lease
Renewal Agreement dated February 13, 2006 (together with this Second Lease
Renewal Agreement on and after April 1, 2011, the "Lease"), Lessor demised
and let to Lessee's Assignor, who subsequently assigned its interest to
Lessee under an Assignment, Amendment and Assumption Agreement with an
effective date of April 1, 2009 (the "Assignment"), who hired from Lessor
that certain portion of building situate Xxx Xx. 00, Xxxxxxxxxxxxxxx
Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx Xxxxxxxx, Xxxxxxxxxx Xxxxxx, Pennsylvania,
consisting of 17,500 sq. ft., more or less, known and numbered 000 Xxxxxxxxx
Xxxxx, Xxxxxxxxxxxxxxx, Xxxxxxxxxxxx 00000 (the "Premises") for a term
expiring March 31, 2011.
B. The parties desire to extend the term of the Lease for an
additional term of five (5) years, commencing April 1, 2011, and ending
Xxxxx 00, 0000 ("Xxxxxx Xxxxxxx Xxxx").
C. The parties desire to set forth herein their agreement regarding
the terms of the Lease during the Second Renewal Term.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. The term of the Lease is hereby extended for a Second Renewal Term
of five (5) years, commencing April 1, 2011, and terminating March 31, 2016,
at 11:59 p.m., unless further extended, renewed or previously terminated, as
set forth in the Lease.
2. During the Second Renewal Term, Article 3 of the Lease, entitled
"Minimum Annual Rent" shall be amended and supplemented to read as follows:
"3. Minimum Annual Rent. The minimum annual rent ("Minimum
Annual Rent") payable by Lessee to Lessor during the Second Renewal
Term shall be Ninety Six Thousand Two Hundred Fifty and 00/100 Dollars
($96,250.00) per year, lawful money of the United States of America,
payable in monthly installments in advance during the Second Renewal
Term in sums of Eight Thousand Twenty and 83/100 Dollars ($8,020.83) on
the first day of each month during the Second Renewal Term, commencing
April 1, 2011."
3. Article 25 of the Lease is hereby deleted in its entirety and the
following substituted therefor:
"25. Extensions and Renewals.
A. Extensions. It is hereby mutually agreed that in the event
Lessee has not given the "Preliminary Renewal Notice" as defined in
subparagraph 25(B), or has given the Preliminary Renewal Notice but has
withdrawn the same, Lessee may terminate this Lease at the end of the
Second Renewal Term and any subsequent renewal term or extension term,
by giving to Lessor written notice at least six (6) months prior
thereto, and Lessor may terminate this Lease at the end of the Second
Renewal Term and any subsequent renewal or extension thereof by giving
to Lessee written notice at least five (5) months prior thereto (each
an "Expiration Notice"); but in default of an Expiration Notice given
by either party in the manner provided herein, this Lease shall
continue for an extension term of one (1) year, commencing the day
after the expiration of the then current renewal term or extension
term, as the case may be, upon the terms and conditions in force
immediately prior to the expiration of the then-current renewal term
or extension term, as the case may be (except for the Minimum Annual
Rent, which shall be as computed in subparagraph 25(C)(iii)), and so
on from year to year, unless terminated by the giving of an Expiration
Notice within the times and in the manner aforesaid. In the event that
Lessee or Lessor shall have given an Expiration Notice and Lessee shall
fail or refuse to completely vacate the Premises and restore the same
to the condition required in this Lease on or before the date
designated in the Expiration Notice (the "Expiration Date"), then it is
expressly agreed that Lessor, by notice to Lessee given no later than
forty-five (45) days after the Expiration Date, shall have the option
either:
(i) to disregard the Expiration Notice as having no force and
effect, whereupon the Expiration Notice shall be null and void, ab
initio, as if never given; or
(ii) treat Lessee as Holding Over, in accordance with
paragraph 2(B) of the Lease.
All powers granted to Lessor by this Lease shall be exercised and
all obligations imposed upon Lessee by this Lease shall be performed by
Lessee during the Second Renewal Term, as well as during any subsequent
extension or renewal terms of this Lease.
Notwithstanding anything set forth in subparagraph 25(A) to the
contrary, if the term of this Lease is not previously terminated, the
term of this Lease shall end absolutely, without further notice, at
11:59 p.m. on the day previous to the 29th anniversary of the Lease
Commencement Date set forth in the Lease.
B. Option to Renew.
(i) Provided Lessor has not previously given Lessee a notice
under paragraph 23(P) hereof, and Lessee is not in default under the
terms of this Lease at the end of the term of the Second Renewal Term,
Lessee shall have the right and privilege, at its election, to renew
the term of this Lease for an additional period of five (5) years
commencing upon the day after the expiration of the term of the Second
Renewal Term and terminating five (5) years thereafter without further
notice. Such five-year period is hereinafter referred to as the "Third
Renewal Term".
In order to exercise said option, Lessee must give
Lessor written notice of its election to renew ("Preliminary Renewal
Notice") at least six (6) months prior to the expiration of the term of
the Second Renewal Term. Said Third Renewal Term shall be on the same
terms and conditions as herein provided for the Second Renewal Term
except that the Minimum Annual Rent shall be calculated as set forth in
the following paragraph. In the event Lessee does not exercise its
option to renew within the time set forth, the provisions of
subparagraph 25(A) shall apply.
C. Computation of Minimum Annual Rent in the event of
Extension/Renewal.
In the event of exercise of the option to renew this Lease by
Lessee in accordance with the terms of subparagraph B, commencing with
the rental payment due on the first day of the Third Renewal Term, the
Minimum Annual Rent shall be the greater of the Minimum Annual Rent set
forth in this Lease for the Second Renewal Term, or the fair market
rental. The fair market rental shall be determined as follows:
(i) Within fifteen (15) days from receipt of the Preliminary
Renewal Notice, Lessor shall advise Lessee of the fair market rental of
the Premises as of the commencement of the Third Renewal Term, by
notice hereunder. In the event Lessee is dissatisfied with the fair
market rental as specified by Lessor, it may withdraw the Preliminary
Renewal Notice, by notice to Lessor, given at least five (5) months one
(1) day prior to the end of the Second Renewal Term.
(ii) The new Minimum Annual Rent, effective on or after the
first day of the Third Renewal Term and for the balance of the Third
Renewal Term shall be the greater of the fair market rental set forth
in Lessor's notice or the Minimum Annual Rent as set forth in this
Lease for the Second Renewal Term. This Minimum Annual Rent shall be
payable in equal monthly installments commencing on the first day of
the Third Renewal Term and on the first day of each month thereafter
during the Third Renewal Term.
(iii) For extensions of this Lease under subparagraph 25(A),
the Minimum Annual Rent during a one-year extension term shall be the
greater of the Minimum Annual Rent for the previous Lease Year or the
fair market rental for the Premises as of the commencement of the
extension term, as determined by Lessor, payable in monthly
installments on the first day of each month during the extension term."
THE FOLLOWING PARAGRAPH 4 SETS FORTH AN ACKNOWLEDGEMENT AND
CONFIRMATION OF WARRANT OF AUTHORITY FOR ANY PROTHONOTARY OR ATTORNEY OF
COURT OF RECORD TO CONFESS JUDGMENT AGAINST THE LESSEE. IN GRANTING THIS
WARRANT OF ATTORNEY TO CONFESS JUDGMENT AGAINST THE LESSEE, THE LESSEE,
FOLLOWING CONSULTATION WITH (OR DECISION NOT TO CONSULT) SEPARATE COUNSEL
FOR THE LESSEE AND WITH KNOWLEDGE OF THE LEGAL EFFECT THEREOF, HEREBY
KNOWINGLY, INTENTIONALLY, VOLUNTARILY AND UNCONDITIONALLY WAIVES ANY AND
ALL RIGHTS THE LESSEE HAS OR MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY
FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED
STATES OF AMERICA, THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE. IT IS
SPECIFICALLY ACKNOWLEDGED BY THE LESSEE THAT THE LESSOR HAS RELIED ON THIS
WARRANT OF ATTORNEY IN EXECUTING THIS SECOND LEASE RENEWAL AGREEMENT AND AS
AN INDUCEMENT TO GRANT FINANCIAL ACCOMMODATIONS HEREUNDER TO THE LESSEE.
LESSEE EXPRESSLY WARRANTS AND REPRESENTS THAT THE FOLLOWING WARRANT OF
ATTORNEY TO CONFESS JUDGMENT HAS BEEN AUTHORIZED EXPRESSLY BY PROPER ACTION
OF THE BOARD OF DIRECTORS OF LESSEE.
LESSEE AND LESSOR HEREBY CONSENT TO THE JURISDICTION OF THE COURT OF
COMMON PLEAS OF XXXXXXXXXX COUNTY PENNSYLVANIA OR THE FEDERAL DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA FOR ANY PROCEEDING IN CONNECTION
WITH THE LEASE, AND HEREBY WAIVE OBJECTIONS AS TO VENUE AND CONVENIENCE OF
FORUM IF VENUE IS IN XXXXXXXXXX COUNTY, PENNSYLVANIA OR IN THE FEDERAL
DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. IN ANY ACTION OR
SUIT UNDER THE LEASE, SERVICE OF PROCESS MAY BE MADE UPON LESSOR OR ANY
LESSEE BY MAILING A COPY OF THE PROCESS BY FIRST CLASS MAIL TO THE RECIPIENT
AT THE RESPECTIVE ADDRESS SET FORTH IN PARAGRAPH 26 OF THE LEASE. LESSOR
AND LESSEE HEREBY WAIVE ANY AND ALL OBJECTIONS TO SUFFICIENCY OF SERVICE OF
PROCESS IF DULY SERVED IN THIS MANNER
4. Lessee and Lessor, jointly and severally, acknowledge and confirm
that the Lease contains paragraph 23(M) (specifically ratified and assumed
by Lessee in the Assignment), which permits the Lessor to CONFESS JUDGMENT
AGAINST LESSEE FOR THE RECOVERY BY LESSOR OF POSSESSION OF THE PREMISES upon
the expiration of the then current term of the Lease. The parties hereto
further acknowledge and agree that nothing contained herein can be
construed to impair in any manner whatsoever Lessor's ability to confess
judgment against Lessee for the recovery by Lessor of possession of the
Premises pursuant to the terms of the Lease.
5. Effectiveness. The furnishing of the form of this agreement shall
not constitute an offer and this agreement shall become effective upon and
only upon its execution by and delivery to each party hereto.
6. In all other respects, the terms and conditions of the Lease not
inconsistent with the terms hereof are hereby ratified and confirmed and
shall remain in full force and effect during the Second Renewal Term.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
intending to be legally bound, as of the day and year last below written.
NAPPEN & ASSOCIATES,
a Pennsylvania limited partnership
t/a 309 DEVELOPMENT COMPANY
Dated: 2/10/11
By: /s/ Xxxxxx X. Xxxxxx
____________________________________
Xxxxxx X. Xxxxxx,
Managing General Partner
DATARAM CORPORATION, A New Jersey
corporation,
By: /s/ Xxxx Xxxxxxxx
____________________________________
Title: Vice-President, Finance
_________________________________
Dated: 2/2/2011
Attest: Xxxxxxx Xxxxxx
_________________________________
Title: Controller
_________________________________
(CORPORATE SEAL)
