EXHIBIT 10.16
LEASE AGREEMENT
BETWEEN
XXXXXXX XXXXXX
AND
LAKELAND INDUSTRIES, INC.
DATED AS OF JULY 18, 2005
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00 XXXXX XXXXXXX XXXXXX
XXXXXXX XX XXXXXXXXXXX
XXXXXX OF BERKS
COMMONWEALTH OF PENNSYLVANIA
TABLE OF CONTENTS
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ARTICLE 1. DEMISE, DESCRIPTION, USE AND TERM 2
ARTICLE 2. RENT 3
ARTICLE 3. INSURANCE/INDEMNIFICATION 4
ARTICLE 4. WASTE AND NUISANCE 5
ARTICLE 5. REPAIRS AND MAINTENANCE 5
ARTICLE 6. LESSEE'S COMPLIANCE 6
ARTICLE 7. UTILITIES 6
ARTICLE 8. RULES AND REGULATIONS 6
ARTICLE 9. ALTERATIONS, IMPROVEMENTS AND FIXTURES 6
ARTICLE 10. QUIET POSSESSION 7
ARTICLE 11. DELIVERY OF POSSESSION 7
ARTICLE 12. SURRENDER OF PREMISES 8
ARTICLE 13. DEFAULT 8
ARTICLE 14. INSPECTION BY LESSOR 10
ARTICLE 15. ASSIGNMENT AND SUBLEASE 11
ARTICLE 16. SECURITY DEPOSIT 11
ARTICLE 17. ESTOPPEL CERTIFICATE 12
ARTICLE 18. ENVIRONMENTAL MATTERS 12
ARTICLE 19 LIMITATION OF LIABILITY OF LESSOR 13
ARTICLE 20. MISCELLANEOUS 13
EXHIBIT "A" RULES AND REGULATIONS
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LEASE AGREEMENT
---------------
THIS LEASE AGREEMENT ("Lease") is made as of the 18th day of July, 2005,
by XXXXXXX XXXXXX ("Lessor"), an adult individual and citizen of the
Commonwealth of Pennsylvania, and
A N D
LAKELAND INDUSTRIES, INC., ("Lessee"), a Delaware corporation.
Background
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The Lessor is the owner of certain real property ("Property") situate at
00 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxxxx. A five (5)
story industrial building ("Building") is located on the Property. The Property
and all improvements thereon owned by the Lessor, including the Building, are
hereinafter referred to as the "Leased Premises".
Concurrently with the execution of this Lease, the Lessor, Mifflin Valley,
Inc., a Pennsylvania corporation, the Lessee, and Mifflin Valley, Inc., a
Delaware corporation, have executed an Asset Purchase Agreement ("Asset Purchase
Agreement").
The Lessor and Lessee now seek to perpetuate in writing their present
understanding and agreement.
NOW, THEREFORE, INTENDING TO BE LEGALLY BOUND HEREBY, the Lessor and
Lessee hereby agree as follows:
ARTICLE 1. DEMISE, DESCRIPTION, USE AND TERM
--------------------------------------------
1.1 The duties and obligations of both the Lessor and the Lessee pursuant
to this Lease are subject to and contingent upon closing occurring under the
Asset Purchase Agreement; provided, however, that any default by the Lessor or
Mifflin Valley, Inc., a Delaware corporation, under the Asset Purchase Agreement
shall constitute a default by the Lessor under this Lease and any default by the
Lessee or Mifflin Valley, Inc., a Delaware corporation, under the Asset Purchase
Agreement shall constitute a Default (as hereinafter defined) by the Lessee
under this Lease.
1.2 The Lessor hereby leases to the Lessee in accordance with the
provisions of this Lease, and the Lessee hereby leases from the Lessor in
accordance with the provisions of this Lease, the Leased Premises.
1.3 The Leased Premises shall be used for the manufacturing of protective
clothing.
1.4 The initial term ("Initial Term") of this Lease shall be five (5)
years and shall begin on August 1, 2005, ("Commencement Date") and shall
terminate on July 31, 2010 ("Termination Date").
1.5 Provided that no Default shall have occurred during the Initial Term,
the Lessee shall have the option ("Renewal Option") to extend this Lease for a
period of five (5) years ("Renewal Term"), which Renewal Term shall commence on
August 1, 2010, and terminate on July 31, 2015.
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1.6 The exclusive method of exercising the Renewal Option shall be by the
giving by the Lessee of notice of such exercise to the Lessor as provided in
Section 20.6 of this Lease, at least two hundred seventy (270) days prior to the
end of the Initial Term.
1.7 In the event that the Lessee shall exercise its Renewal Option: (a)
The Lessee shall pay to the Lessor Rent (as hereinafter defined) in accordance
with the provisions of Section 2.1 of this Lease; and
(b) All other terms and conditions contained in this Lease shall be
applicable throughout the Renewal Term and binding upon the Lessee to the
same extent that such terms and conditions were applicable and binding
during the Initial Term.
1.8 Each twelve (12) month period of the Initial Term commencing on the
anniversary of the Commencement Date and each twelve (12) month period of the
Renewal Term, if applicable, commencing on the anniversary of the Commencement
Date is hereinafter referred to as "Lease Year". As hereinafter used, "Term"
shall mean the Initial Term and, if applicable, the Renewal Term.
ARTICLE 2. RENT
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2.1 The Lessee shall pay to the Lessor at its offices set forth in Section
20.6 of this Lease or at such other place as the Lessor shall designate to the
Lessee from time to time in writing, as rent ("Rent"), payable without prior
notice or demand and without setoff or deduction of any nature, as follows:
(a) During the first Lease Year of the Term hereof, twelve (12)
equal, consecutive monthly installments in the amount of Four Thousand Six
Hundred Thirty and 00/100 Dollars ($4,630.00) each, in advance, the first
such payment becoming due and payable on the Commencement Date and each
successive monthly payment becoming due and payable on the same day of
each of the next eleven (11) months thereafter.
(b) For each Lease Year of the Initial Term hereof following the
first Lease Year, and for each Lease Year of the Renewal Term, if
applicable, there shall be an increase in Rent ("Rent Increase"), which
Rent Increase shall be three and one half percent (3.5%) of the Rent
applicable to the immediately preceding Lease Year.
2.2 As used herein, "Expenses" shall mean any and all assessments, costs,
premiums, taxes, utility charges and all other expenses of any and every nature
pertaining or related to the Leased Premises or the maintenance, occupation,
repair or operation of the Leased Premises other than (a) principal, interest
and other amounts owing with respect to loans to Lessor secured in whole or in
part by the Leased Premises, and (b) all Capital Expenditures (as hereinafter
defined) except those Capital Expenditures which are caused, in whole or in
part, (i) by any act or omission of the Lessee or any of its shareholders,
directors, officers, employees, agents, contractors or representatives or (ii)
by any Default by Lessee. As used herein, "Capital Expenditures" means any
expenditures which, under generally accepted accounting principals and
practices, would be characterized as Capital Expenditures.
2.3 The Lease shall be considered a "triple net lease". Upon demand
therefore, the Lessee shall pay all Expenses billed directly to the Lessee and
reimburse the Lessor for all Expenses paid by the Lessor during the Term,
except, however, that Lessor shall make every effort to have such invoices
billed directly to Lessee and paid directly by Lessee where appropriate.
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2.4 Any amounts owing by the Lessee under this Lease other than Rent are
hereinafter referred to as "Additional Rent".
2.5 In the absence of manifest error, all determinations made by the
Lessor under or pursuant to this Article shall be final and conclusive.
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ARTICLE 3. INSURANCE/INDEMNIFICATION
------------------------------------
3.1 Throughout the Term hereof, the Lessee shall maintain with a good and
responsible company or companies doing insurance business in the Commonwealth of
Pennsylvania and reasonably acceptable to the Lessor public liability insurance
in the minimum amount per occurrence of One Million Dollars ($1,000,000.00)
combined single limit coverage for loss from an accident resulting in bodily
injury to or death of persons and Five Hundred Thousand Dollars ($500,000.00)
for loss from an accident resulting in damage to or destruction of property,
naming the Lessor as an additional named insured.
3.2 At the beginning of each Lease Year the Lessee shall provide the
Lessor with a certificate or certificates of insurance evidencing the
maintenance of the insurance coverages referred to in Section 3.1 hereof.
3.3 With respect to the insurance referred to in Section 3.1 hereof, all
policies pertaining thereto shall expressly provide that the same may not be
cancelled or altered without thirty (30) days' prior written notice to the
Lessor.
3.4 If the Lessee shall fail to secure or maintain the insurance referred
to in Section 3.1 hereof, the Lessor shall be permitted, but shall have no duty,
to obtain such insurance in the Lessee's name or as the agent for the Lessee and
shall be compensated by the Lessee as Additional Rent for the cost of the
insurance premiums therefore immediately upon demand made by the Lessor without
setoff or deduction, and all such amounts so paid by the Lessor shall become
Additional Rent until paid to the Lessor by the Lessee.
3.5 If the Leased Premises or the Building in which the same is located
should be totally destroyed by fire, flood or other casualty, or if either
should be so damaged that rebuilding or repair cannot reasonably be completed so
as to allow the Lessee to reasonably occupy the Leased Premises for the purposes
provided in Section 1.2 hereof within ninety (90) working days from the date of
the occurrence of said damage, and such destruction or damage has not been
caused by or resulted from any act or omission of the Lessee, this Lease shall
terminate and the Rent and Additional Rent shall be abated for the unexpired
portion of this Lease, effective as of the date of such destruction or damage.
Other than for the termination and abatement of Rent and Additional Rent as
hereinabove set forth, the Lessee shall have no other rights or remedies against
the Lessor on account of the Lessee's inability to use and occupy the Leased
Premises.
3.6 If the Leased Premises or the Building in which the same is situate
should be damaged by fire, flood or other casualty but such damage has not been
caused by or resulted from any act or omission of the Lessee, and such damage is
not to such an extent that rebuilding or repair cannot reasonably be completed
within ninety (90) working days from the date of such damage, this Lease shall
not terminate, but the Lessor at its sole cost and expense, shall proceed
forthwith to rebuild or repair the Leased Premises or the Building in which the
same is situate to substantially the condition in which the same existed prior
to such damage. In the event of such damage to the Leased Premises or the
Building as aforesaid, Rent and Additional Rent shall be abated for that period
of time during which the Lessee shall not be able to reasonably occupy the
Leased Premises for the purposes provided in Section 1.2 hereof. In the event
that Lessor should fail to complete such rebuilding or repair within ninety (90)
working days from the date of the occurrence of said damage, the Lessee may, at
its option, by giving written notice thereof to the Lessor, terminate this
Lease, in which case the Rent and Additional Rent shall be abated for the
unexpired portion of this Lease, effective as of the date of such damage. Other
than for the termination and abatement of Rent and Additional Rent as
hereinabove set forth, the Lessee shall have no other rights or remedies against
the Lessor for
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the failure by the Lessor to complete such rebuilding or repair as aforesaid
within ninety (90) working days of the date of the occurrence of said damage or
on account of the Lessee's inability to use and occupy the Leased Premises.
3.7 The Lessee shall indemnify and save the Lessor harmless of and from
any and all loss, damage, cost and expense, including reasonable attorneys'
fees, suffered or incurred by the Lessor arising out of or pertaining to any act
or omission of any nature of the Lessee or any of its shareholders, directors,
officers, agents, employees, invitees, contractors or representatives resulting
in damage to or destruction of the Leased Premises or the Property.
3.8 Notwithstanding anything to the contrary contained in this Lease or
otherwise, the Lessee shall not be entitled to any abatement of Rent or
Additional Rent or termination of this Lease in the event that any destruction
or damage to the Leased Premises or the Building shall be caused by or result
from any act or omission of the Lessee or any of its shareholders, directors,
officers, agents, employees, invitees, contractors or representatives.
3.9 Notwithstanding anything to the contrary contained in this Lease,
nothing contained in this Lease shall be deemed to limit, negate or otherwise
diminish any rights or remedies which the Lessor shall have against the Lessee
on account of any or omission by the Lessee which results in damage or
destruction to the Leased Premises or the Building in which the same is situate.
ARTICLE 4. WASTE AND NUISANCE
-----------------------------
4.1 The Lessee shall not commit, or suffer to be committed, any waste on
the Leased Premises, nor shall the Lessee maintain, commit or permit the
maintenance or commission of any nuisance on the Leased Premises or the use of
the Leased Premises for any unlawful purpose.
ARTICLE 5. REPAIRS AND MAINTENANCE
----------------------------------
5.1 Lessee acknowledges that the Lessee has carefully inspected the Leased
Premises and accepts the Leased Premises AS IS.
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5.2 The Lessee shall keep the Leased Premises in good order and repair,
reasonable wear and tear excepted. The Lessee shall repair or replace all broken
or damaged doors, windows, fixtures and other portions of the Leased Premises.
Notwithstanding the foregoing, the Lessee shall have no duty to make structural
repairs to the Leased Premises unless the damage thereto has been caused by the
act or omission of the Lessee or any failure by the Lessee to observe or perform
any of its duties or obligations under this Lease.
5.3 The Lessee shall not overload the floors nor install any heavy
machinery or other heavy equipment of any kind without first obtaining the prior
written consent of the Lessor, which, if granted, may be conditioned upon the
moving of such machinery and equipment by skilled, licensed handlers and
installation and maintenance, at Lessee's sole cost and expense, of special
reinforcing and settings adequate to absorb and prevent noise and vibration.
5.4 The Lessor shall repair and maintain the Leased Premises at Lessor's
expense, except for any damage thereto caused by any act or omission of the
Lessee or any failure by the Lessee to observe or perform any of its duties and
obligations under this Lease, in which event such damage shall be promptly
repaired to the Lessor's satisfaction at the sole cost and expense of the
Lessee, so that the Leased Premises shall have:
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(a) effective waterproofing and weather protection of roof and
exterior walls;
(b) plumbing facilities that substantially conform to applicable law
in effect at the time of installation;
(c) heating facilities which substantially conform with applicable
law at the time of installation;
(d) electrical lighting, with wiring and electrical equipment, which
substantially conform with applicable law at the time of installation; and
(e) floors, stairways and railings maintained in good repair;
provided, however, that notwithstanding the foregoing the Lessor shall have no
duty to make any repairs otherwise required by this Section unless and until the
Lessor shall have received notice of the need therefore from the Lessee.
ARTICLE 6. LESSEE'S COMPLIANCE
------------------------------
6.1 The Lessee shall not at any time use or occupy the Leased Premises nor
permit nor suffer the same to be used or occupied in violation of any statute,
ordinance or other requirement of any local, state or federal government or any
authority, agency or department thereof, and in the event that any local, state
or federal government or any authority, agency or department thereof shall
hereafter at any time contend or declare by notice, citation, order or in any
other manner whatsoever that the Leased Premises is used for a purpose which is
in violation of any statute, ordinance or other requirement, the Lessee shall
discontinue immediately such use of the Leased Premises.
ARTICLE 7. UTILITIES
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7.1 As of the date of this Lease, the Leased Premises is served by the
following utilities ("Utilities"): electric, natural gas, public water, public
sewer and telephone.
7.2 Notwithstanding anything to the contrary, the Lessor does not make any
representations or warranties of any nature to the Lessee with respect to the
existence, continued existence, quantity or quality of any Utilities and shall
have no liability or responsibility for any diminution in, suspension of or
termination of any Utilities.
7.3 The Lessee shall pay when due, directly to the suppliers thereof, the
cost of all Utilities now or hereafter serving the Leased Premises which are
metered and billed directly to the Lessee.
7.4 Immediately upon demand, the Lessee shall reimburse the Lessor for the
cost of all Utilities now or hereafter serving the Leased Premises which are not
separately metered and for which the Lessee is not separately billed by a
supplier of such Utilities. In the absence of manifest error, the reasonable
determination by the Lessor as to the cost of Utilities subject to reimbursement
by the Lessee shall be final and conclusive.
ARTICLE 8. RULES AND REGULATIONS
--------------------------------
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8.1 The rules and regulations set forth on Exhibit "A" which is attached
hereto and made a part hereof are part of this Lease with the same effect as
though contained herein in their entirety, and the Lessee covenants that said
rules and regulations shall be fully observed by the Lessee throughout the Term
hereof and fully observed by each and every employee of the Lessee and each and
every person on the Leased Premises by permission or consent of the Lessee.
ARTICLE 9. ALTERATIONS, IMPROVEMENTS AND FIXTURES
-------------------------------------------------
9.1 The Lessee shall make no alterations, additions or improvements in or
to the Leased Premises without obtaining the prior written consent of the
Lessor, which shall not be unreasonably withheld. In no event shall the Lessee
be permitted to make any alterations, additions or improvements in or to the
Leased Premises which would diminish the value of the Leased Premises.
9.2 All alterations, additions and improvements to the Leased Premises
shall be of first quality, shall be free of all liens and encumbrances except
for a lien on all assets of Lessee held by Lessee's bank (except, however, that
in no event shall Lessee's bank have any lien, right, title or interest in any
alteration, addition or improvement to the Leased Premises which constitutes a
fixture or otherwise is affixed to the Leased Premises or any part thereof),
shall be completed in a good and workmanlike manner, shall be made in accordance
with all applicable laws and governmental rules and regulations and shall be in
form satisfactory to the Lessor. In no event shall the Lessee cause or permit
any mechanic's lien or claim ("Mechanic's Lien") to attach to the Leased
Premises or any part thereof by reason of the construction of any alterations,
additions or improvements to the Leased Premises or any work related thereto.
9.3 At the Lessor's option, upon incorporation into the Leased Premises,
all alterations, additions and improvements shall become the property of the
Lessor and shall remain upon and be surrendered by the Lessee with the Leased
Premises. The Lessee shall indemnify and hold the Lessor harmless of and from
any and all loss, damage, cost and expense, including all fines, penalties,
reasonable attorneys' fees and court costs, incurred by the Lessor arising out
of or resulting from the construction of the alterations, additions and
improvements or any repairs to the Leased Premises occasioned thereby.
9.4 In the event that the Lessee shall make any alterations, additions or
improvements to the Leased Premises, the Lessee shall promptly pay when due all
contractors and materialmen who shall have supplied labor, work or materials to
the Lessee with respect to the Leased Premises. In addition, the Lessee shall
take all other steps, including the timely filing of a waiver against liens, as
permitted by applicable law, in form and substance satisfactory to the Lessor
("Waiver Against Liens"), in order to avoid the imposition of any Mechanic's
Lien upon or against the Leased Premises. At least ten (10) business days prior
to the initiation of any labor or work with respect to the alterations,
additions or improvements or the delivery of any materials to the Leased
Premises with respect thereto, the Lessee shall deliver to the Lessor a Waiver
Against Liens, executed by the Lessee and by each of its contractors. In the
event that any Mechanic's Lien shall be filed with respect to the Leased
Premises for labor or work performed or materials supplied by or on behalf of
the Lessee with respect to the Leased Premises, the Lessee shall cause the same
to be discharged within thirty (30) days after the Mechanic's Lien has been
filed or formal notice of said lien has been issued, whichever shall first
occur, regardless of the validity or invalidity of such Mechanic's Lien. Nothing
contained in this Lease or otherwise is intended to authorize the Lessee to do
or cause any work or labor to be done or any materials to be supplied for the
account of the Lessor, all of the same being solely for the Lessee's account and
at the Lessee's sole risk, cost and expense.
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ARTICLE 10. QUIET POSSESSION
----------------------------
10.1 This Lease and the tenancy of the Lessee hereunder shall be
subordinate to the mortgage liens of record as of the date of this Lease and to
all amendments, consolidations, extensions, modifications and renewals thereof
or pertaining thereto and to the mortgage liens of record arising out of or
pertaining to any refinancing with respect to any of the foregoing, and all
amendments, consolidations, extensions, modifications and renewals thereof or
pertaining thereto, and to all advances hereafter made from time to time upon
the security thereof. Upon demand by the Lessor, the Lessee shall execute and
deliver to the Lessor such instruments and assurances as the Lessor shall
reasonably require in order to evidence such subordination.
10.2 Provided that no Default (as hereinafter defined) shall have
occurred, and subject to the other provisions of this Lease, the Lessee shall
peaceably and quietly hold and enjoy the Leased Premises for the Term hereof
without hindrance or interruption, and such quiet enjoyment shall be defended by
the Lessor.
ARTICLE 11. DELIVERY OF POSSESSION
----------------------------------
11.1 If the Lessor shall be unable for any reason whatsoever to deliver
possession of the Leased Premises on the Commencement Date, the Lessor shall not
be liable to the Lessee for any damage caused thereby, nor shall this Lease
thereby become void or voidable, nor shall the Term hereof in any way be
extended. In any such event as aforesaid, the Lessee shall not be liable for any
Rent or Additional Rent as herein provided until such time as the Lessor
delivers possession of the Leased Premises.
ARTICLE 12. SURRENDER OF PREMISES
---------------------------------
12.1 Without demand therefore and at the Lessee's own cost and expense,
the Lessee shall remove all personal property belonging to the Lessee and all
alterations, additions and improvements (other than permanent partitions and
installations and those alterations, additions and improvements with respect to
which the Lessor has exercised its option under Section 9.3 hereof) to the
Leased Premises which the Lessee has installed or caused to be installed as of
the date of the termination of this Lease or the sooner termination of the
Lessee's tenancy hereunder. In addition, the Lessee shall repair all damage to
the Leased Premises caused by such removal as aforesaid and restore the Leased
Premises to the condition in which the same existed prior to the installation of
such alterations, additions and improvements so removed. Without limiting any
other rights or remedies of which the Lessor may be possessed, any alterations,
additions and improvements which are not removed as required by this Section
shall be deemed to have been abandoned by the Lessee and may be retained or
disposed of by the Lessor without accounting therefore to the Lessee of any
nature. In the event that the Lessor shall dispose of any property deemed to
have been abandoned by the Lessee, immediately upon demand therefore the Lessee
shall reimburse the Lessor for all costs and expenses incurred by the Lessor
with respect to such disposition.
12.2 The Lessee shall, on expiration of the Term hereof or the sooner
termination of the Lessee's tenancy hereunder, promptly surrender and deliver
the Leased Premises to the Lessor without demand therefore in good condition,
ordinary wear and tear excepted.
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12.3 If during the Term of this Lease the Leased Premises, or any part
thereof, should be taken for any public or quasi-public use under any law,
ordinance or regulation, or by right of eminent domain, or should be sold to any
condemning authority under threat of condemnation, the Lessor shall have the
right to terminate this Lease, and in such event the Rent and Additional Rent
shall be abated for the unexpired portion of this Lease, effective as of the
date of the taking by or conveyance to the condemning authority. No such
condemnation or conveyance shall entitle the Lessee to any part of any damage
award or purchase price paid on account of such condemnation or conveyance, all
of which rights are hereby expressly waived by the Lessee. Notwithstanding the
foregoing, in the event that the condemning authority shall award moving or
business interruption damages which do not in any way diminish the recovery
available to the Lessor, the Lessee shall not be deemed to have waived any right
to the same by reason of the provisions of this Section and shall have the right
to seek a recovery of such moving damages from the condemning authority.
ARTICLE 13. DEFAULT
-------------------
13.1 Any of the following events shall constitute an event of default by
the Lessee ("Default") under the provisions of this Lease:
(a) the failure or refusal by the Lessee to pay when due and without
notice or demand and without setoff or deduction to the Lessor any Rent,
Additional Rent or any other amount owing under this Lease, and the
continuance of such failure or refusal by the Lessee for a period of ten
(10) days following the due date; provided, however, that the Lessee shall
not be entitled to such grace period more than two (2) times during any
consecutive twelve (12) month period;
(b) the failure or refusal by the Lessee to carry the insurances
required by Article 3 hereof or to provide the Lessor with evidence of
such coverage as therein required;
(c) the failure or refusal by the Lessee to make full and timely
performance and observance of the provisions of this Lease (excluding the
provisions to which Subsections (a) and (b) of this Section pertain) which
the Lessee is required to perform or observe, and the continuance of such
failure or refusal by the Lessee for a period of thirty (30) days
following the giving of notice by the Lessor with respect thereto;
provided, however, that the Lessor shall not be required to give such
notice nor shall the Lessee be entitled to such grace period more than two
(2) times during any consecutive twelve (12) month period;
(d) [INTENTIONALLY DELETED];
(e) if the Lessee shall suffer or incur any lien, charge,
encumbrance or security interest to be imposed upon the Leased Premises,
the Lessee's interest in this Lease or the tenancy of the Lessee arising
therefrom, and such lien, charge, encumbrance or security interest shall
not be satisfied, discharged or terminated, as applicable, within thirty
(30) days of the imposition thereof;
(f) the attachment, garnishment, levy or seizure of any of the
assets of the Lessee or the taking of possession thereof by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or other similar
official, and such attachment, garnishment, seizure or levy is not
released within thirty (30) days of the imposition thereof, or possession
relinquished within thirty (30) days of the taking thereof;
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(g) the making by the Lessee or the attempt by the Lessee to make
any common law composition of debts with the creditors of Lessee or the
making by the Lessee to make an assignment for the benefit of the
creditors of the Lessee or any attempt by the Lessee to otherwise take
advantage of any insolvency law;
(h) the entry of a decree or order for relief by a court having
jurisdiction in respect of the Lessee in an involuntary case under the
federal bankruptcy laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or similar law, or for
the appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator or other similar official with respect to the Lessee or any
of its assets, and such appointment is not terminated within thirty (30)
days of the date of the making thereof;
(i) the commencement by the Lessee of a voluntary case under the
federal bankruptcy laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or other similar law,
or the consent of the Lessee to the appointment of or taking possession by
a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official for the Lessee or any of the assets of Lessee.
13.2 In the event of a Default, the Lessor shall have any and all of the
following rights and remedies:
(a) to declare the Rent, Additional Rent and all other amounts owing
by the Lessee to the Lessor pursuant to this Lease for the balance of the
Term to be immediately due and payable by the Lessee;
(b) to terminate this Lease and be entitled to unpaid accrued Rent,
Additional Rent and other amounts owing pursuant to this Lease and
damages, including damages equal to the difference between the balance of
the Rent, Additional Rent and other amounts owing pursuant to this Lease
for the Term and the then fair rental value of the Leased Premises for the
remainder of the Term;
(c) without terminating this Lease, to re-enter and re-let to
another tenant, the Lessee remaining liable for the loss of Rent for the
balance of the Term, the Lessor being released from any and all liability
for such re-entry;
(d) to apply the Security Deposit against all losses, damages, costs
and expenses suffered or incurred by the Lessor by reason of such Default;
(e) To be indemnified of and from any and all losses, damages, costs
and expenses, including reasonable attorneys' fees, suffered or incurred
by the Lessor by reason of such Default;
(f) to exercise any and all other rights and remedies set forth or
referred to in this Lease and all other rights and remedies at law, in
equity or by statute permitted.
13.3 [INTENTIONALLY DELETED].
13.4 All rights and remedies of the Lessor hereunder or at law in, equity
or by statute permitted or provided are cumulative, and may, to the extent
permitted by law, be exercised concurrently or separately. The exercise of any
one right or remedy shall not be deemed to be an exclusive election of such
right
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or remedy or to preclude the exercise of any other right or remedy. No failure
on the part of Lessor to exercise, and no delay in exercising, any right or
remedy hereunder, shall operate as a waiver thereof, nor shall any single or
partial exercise by Lessor of any right or remedy hereunder preclude any other
or future exercise thereof or the exercise of any other right or remedy.
13.5 In the event of a Default hereunder, Lessee shall pay, in addition to
any and all other amounts owing hereunder, and without setoff or deduction, upon
demand therefore all costs and expenses, including reasonable attorneys' fees,
incurred by the Lessor in enforcing any of its rights or remedies hereunder or
by law, equity or statute permitted or provided.
13.6 (a) In the event that the Lessor shall fail to perform or observe any
provision of this Lease to be performed or observed by the Lessor, the
Lessee shall provide the Lessor with written notice thereof specifying the
nature of such failure ("Default Notice"). In the event that the Lessor
shall failure to cure such failure within the cure period ("Cure Period")
provided in Subsection (b) hereof, the Lessor shall be in default
hereunder and the Lessee shall have any and all rights and remedies at
law, in equity or by statute permitted.
(b) The Cure Period referred to in Subsection (a) hereof shall:
(1) Consist of thirty (30)days beginning as of the date of
receipt by the Lessor of the Default Notice; or
(2) In the event that the Lessor's failure to perform or
observe any provision of this Lease to be performed or
observed by the Lessor is of such nature that it cannot
reasonably be cured within thirty (30) days, the Cure Period
shall consist of a reasonably greater period of time under the
circumstances not to exceed ninety (90) days, beginning as of
the date of receipt by the Lessor of the Default Notice.
ARTICLE 14. INSPECTION BY LESSOR
--------------------------------
14.1 The Lessee shall permit the Lessor and its agents and representatives
to enter into and upon the Leased Premises at all reasonable times and upon
reasonable notice for the purposes of inspecting the same and for the purpose of
maintaining or making repairs or alterations to the Leased Premises.
Notwithstanding the foregoing, in the event that an emergency shall occur with
respect to the Leased Premises or any part thereof, the Lessor shall not be
required to give any notice whatsoever to the Lessee.
14.2 The Lessor shall have the right at any and all times during the Term
to erect one (1) or more "For Sale" signs on the Leased Premises and within the
one hundred eighty (180) day period prior to the end of the Term to erect one
(1) or more "For Lease" signs on the Leased Premises.
14.3 The Lessor shall have the right at all reasonable times during the
Term, and during the one hundred eighty (180) day period prior to the end of the
Term to allow one (1) or more real estate agents and potential purchasers and
lessees, as applicable, to inspect the Leased Premises.
ARTICLE 15. ASSIGNMENT AND SUBLEASE
-----------------------------------
15.1 The Lessee shall not voluntarily, involuntarily or by operation of
law, assign, transfer, mortgage, pledge or otherwise encumber this Lease or all
or any part of the Lessee's interest in this Lease or in the Leased Premises, in
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whole or in part, or sublet the whole or any part of the Leased Premises, or
permit the use of the whole or any part of the Leased Premises by any other
person or other entity of any nature ("Person") without the prior written
consent of the Lessor; such consent, however, shall not be unreasonably
withheld. No assignment or sublease, if consented to in the manner aforesaid,
shall in any way relieve or release Lessee from liability upon any of the
covenants under the terms of this Lease, and notwithstanding any such assignment
or sublease, the responsibility and liability of Lessee hereunder shall continue
in full force and effect until the expiration of the Term hereby created and any
renewals thereof. No assignment or sublease shall be valid unless the assignee
or subtenant shall assent to and agree in writing to be bound by all of the
covenants and conditions herein contained, including the provisions of Section
13.3 hereof, such assent and agreement to be in form reasonably satisfactory to
the Lessor.
15.2 The Lessor shall have the right to assign and transfer, in whole or
in part, this Lease and any and all rights thereunder, the Leased Premises or
any part of the foregoing without the consent of the Lessee. Such assignment and
transfer shall relieve the Lessor of any and all liability under this Lease;
provided, however, that the liability of the Lessor hereunder shall be fully
enforceable against such assignee or transferee. The Lessee shall, within
fifteen (15) days from receipt of a written demand by the Lessor, execute a
consent in form reasonably satisfactory to the Lessor to such assignment or
transfer as aforesaid.
ARTICLE 16. SECURITY DEPOSIT
----------------------------
16.1 Concurrently with the execution of this Lease, the Lessee shall
deposit with Lessor the security deposit ("Security Deposit") in the amount of
Four Thousand Six Hundred Thirty and 00/100 Dollars ($4,630.00) as security for
the full, timely and faithful performance and observance by the Lessee of the
provisions of this Lease on the part of the Lessee to be performed or observed
and for the cost of any trash removal, house cleaning, repair or correction of
damage to the Leased Premises in excess of normal wear and tear.
16.2 The Security Deposit referred to in Section 16.1 hereof shall be held
by the Lessor, and the Lessee shall not be entitled to interest thereon.
16.3 If at any time during the Term hereof a Default shall occur by reason
of the failure of the Lessee to make prompt payment when due of Rent or
Additional Rent, or any portion thereof, or any other sum owing by the Lessee to
the Lessor pursuant to the provisions of this Lease, the Lessor may appropriate
and apply any portion of the Security Deposit as may be necessary to the payment
of the overdue Rent, Additional Rent or any other sum owing by the Lessee to the
Lessor pursuant to the provisions of this Lease.
16.4 If at any time during the Term hereof the Lessee shall fail to repair
any damage to the Leased Premises or the Building in which the same is situate
that the Lessee is required to repair pursuant to the provisions of this Lease,
the Lessor may appropriate and apply any portion of the Security Deposit as may
be reasonably necessary to make such repairs.
16.5 If on the termination of the tenancy of the Lessee for any reason,
the Lessee does not leave the Leased Premises in reasonably clean condition,
then the Lessor may appropriate and apply any portion of the Security Deposit as
may be reasonably necessary to put the Leased Premises in such clean condition.
16.6 Should the Lessor transfer the Lessor's interest under this Lease or
in the Leased Premises in any manner at the Lessor's option, the Lessor shall do
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one of the following acts, either of which shall relieve the Lessor of further
liability with respect to such Security Deposit:
(a) transfer the portion of such Security Deposit remaining after
all lawful deductions have been made to the Lessor's successor in interest
and thereafter notify the Lessee of such transfer, and of the transferee's
name and address. On receipt of such remaining Security Deposit, the
successor in interest to the Lessor shall have all of the rights, remedies
and obligations of the Lessor with respect to such Security Deposit and
the Lessor shall be relieved and released of all further liability, duty
and obligation to the Lessee with respect to the Security Deposit or its
return; or
(b) return to the Lessee the portion of the Security Deposit
remaining after any lawful deductions have been made.
16.7 Except as otherwise provided herein, the Lessor shall return the
Security Deposit, or the balance thereof after all lawful deductions have been
made therefrom, to the Lessee as soon as possible following the vacation of the
Leased Premises by the Lessee in accordance with the provisions of this Lease
and the surrender to the Lessor of all keys to the Leased Premises; provided,
however, that nothing herein contained shall be deemed to require the Lessor to
return the Security Deposit or any portion thereof to the Lessee until all
charges against the Security Deposit shall have been determined by the Lessor.
In the event that the Lessor determines that any loss, damage or injury
chargeable to the Lessee hereunder exceeds the Security Deposit, the Lessor, in
addition to any and all other rights and remedies of which the Lessor may be
possessed, may retain the Security Deposit as liquidated damages or may apply
said sum against any actual loss, damage or injury and the balance thereof shall
be the responsibility of the Lessee.
16.8 Except as provided in this Article, the parties hereto acknowledge
that the Security Deposit is not to be considered as the last monthly payment of
Rent under this Lease.
16.9 In the event that the Security Deposit or any portion thereof shall
be used or applied by the Lessor pursuant to the provisions of this Lease, the
Lessor shall give notice to the Lessee of such use or application and the
reasons therefore within thirty (30) days of such use or application.
16.10 In the event that the Lessor shall use or apply the Security Deposit
or any portion thereof but shall not elect to exercise the other rights and
remedies granted to the Lessor under this Lease, then, immediately upon demand
therefore by the Lessor, the Lessee shall pay over to the Lessor such sums of
money as are necessary to reconstitute the Security Deposit in the amount set
forth in Section 16.1.
ARTICLE 17. ESTOPPEL CERTIFICATE
--------------------------------
17.1 The Lessee shall, at any time within ten (10) days of the Lessor's
written request, execute, acknowledge and deliver to the Lessor a statement
certifying that this Lease is unamended, unmodified and in full force and effect
(or, if there have been amendments or modifications, that the same is in full
force and effect as amended or modified and stating the amendments and
modifications), the dates to which the Rent, Additional Rent and other amounts
owing hereunder have been paid in advance, if any, and such other information as
the Lessor shall reasonably require. It is intended that any such statement
delivered pursuant hereto shall be relied upon by any prospective purchaser or
mortgagee of the Leased Premises.
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ARTICLE 18. ENVIRONMENTAL MATTERS
---------------------------------
18.1
(a) The term "Applicable Environmental Laws" shall mean without
limitation all present and future laws, statutes, codes, ordinances,
orders, judgments, decrees, injunctions, rules, regulations, restrictions
and requirements ("Legal Requirements") of the United States of America,
the Commonwealth of Pennsylvania, the Borough of Shillington and any
agency, department, bureau, board, commission or instrumentality of either
of the foregoing now existing or hereafter created ("Governmental
Authority") pertaining to the preservation or enhancement of the quality
of the environment or regulating or restricting the use, transfer, storage
or remediation of Hazardous Materials (as hereinafter defined), including
the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended (42 U.S.C. Section 9601, et seq.), the Hazardous
Materials Transportation Act, as amended (49 U.S.C. Section 1801, et
seq.), the Resource Conservation and Recovery Act, as amended (42 U.S.C.
Section 6901, et seq.), the Pennsylvania Hazardous Sites Cleanup Act (35
P.S. 6020.101, et seq.) and all rules and regulations adopted and
publications promulgated pursuant thereto at any time.
(b) The term "Hazardous Materials" shall mean, without limitation,
any flammable explosives, radioactive materials, hazardous materials,
hazardous wastes, hazardous or toxic substances or related materials,
asbestos or any material containing asbestos, or any other substance or
material regulated under any Applicable Environmental Laws.
18.2 The Lessee shall not use the Leased Premises, nor allow it to be
used, to generate, manufacture, refine, transport, treat, store, handle,
dispose, transfer, produce or process Hazardous Materials.
18.3 The Lessee shall not cause or permit, as a result of any intentional
or unintentional act or omission on the part of the Lessee or any other Person,
a release of Hazardous Materials onto, from or affecting the Leased Premises or
any other use, installation or disposition of Hazardous Materials in violation
of Applicable Environmental Laws.
18.4 The Lessee shall comply, and enforce compliance by all of its agents,
servants, employees, invitees, permitted assigns, sublessees, representatives
and all other persons coming on the Leased Premises with the permission of the
Lessee, with all Applicable Environmental Laws.
ARTICLE 19 LIMITATION OF LIABILITY OF LESSOR
--------------------------------------------
19.1 Notwithstanding anything to the contrary, the liability of the Lessor
(and any assignee thereof) under this Lease shall be limited to its interest in
the Leased Premises and the Lessor (and any assignee thereof) shall have no
liability to the Lessee beyond its interest in this Lease.
ARTICLE 20. MISCELLANEOUS
-------------------------
20.1 In the event of any assignment, conveyance or other transfer by the
Lessor of its interest in the Lease or the Leased Premises to any Person
assuming the Lessor's obligations under this Lease, then in such event the
Lessor shall be released and relieved of and from any and all further liability,
duties and
15
obligations under this Lease and to the Lessee and the Lessee shall look solely
to such successor in interest of the Lessor for the observance and performance
of the Lessor's obligations under this Lease.
20.2 The Lessee shall comply with all Legal Requirements of all
Governmental Authorities to the extent that the same affect the Leased Premises,
and the Lessee shall save the Lessor harmless from any and all fines and
penalties and costs assessed against the Lessor as a result of the failure by
the Lessee to comply with such statutes, laws, ordinances, rules, regulations,
orders, directives and requirements.
20.3 All property on the Leased Premises shall be and remain on the Leased
Premises at the sole risk of the Lessee, and the Lessor shall not be liable for
any damage to nor loss of such property arising from (a) any acts, omissions or
negligence of others, (b) the leaking of the roof of the Building, (c) the
bursting, leaking or overflowing of water, sewer or other pipes, (d) the
bursting, leaking or overflowing of heating or plumbing fixtures, (e) electrical
wires or fixtures, (f) damage by fire, casualty or any other disaster, (g) any
other cause whatsoever; and the Lessee shall indemnify and hold Lessor harmless
in all such cases.
20.4 It is expressly understood that the Lessor shall not be construed or
held to be a partner or associate of the Lessee in the conduct of the Lessee's
business, it being expressly understood that the relationship between the
parties hereto is and shall remain at all times that of landlord and tenant.
20.5 Time shall be of the essence of this Lease.
20.6 All notices, requests, demands and other communications given or made
pursuant to this Lease shall be in writing and delivered in person, or sent by
certified mail, return receipt requested, postage prepaid, or sent by nationally
recognized overnight courier to the address set forth in Paragraph 14 of the
Addendum or to such other address as the receiving party shall have last
designated by written notice to the other party hereto:
If to Lessor: Xxxxxxx Xxxxxx
000 Xxxxxxxxxx Xxxx
Xxxxxxx, XX 00000
If to Lessee: Lakeland Industries, Inc.
c/o Mifflin Valley, Inc.
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
With a copy to: Lakeland Industries, Inc.
000-0 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
ATTN: Xxxxxxxxxxx Xxxx and Xxxx Xxxxxxxx
20.7 Whenever a period of time is to be computed from the date of receipt
of a notice, request, demand or other communication and actual receipt thereof
is refused by the party to whom it is directed, receipt shall be deemed to have
been received for all purposes as follows:
(a) if the refused item was delivered in person, such item shall be
deemed to have been received on the date refused;
(b) if the refused item was sent by certified mail, return receipt
requested, such item shall be deemed to have been received on the third
(3rd) day following mailing thereof;
16
(c) if the refused item was sent by nationally recognized courier,
such item shall be deemed to have been received on the day following
delivery to such nationally recognized courier.
20.8 When the sense so requires, words of any gender used in this Lease
shall be held to include any other gender and words in the singular number shall
be held to include the plural and vice versa. All pronouns and adjectives and
any variations thereof used herein shall be deemed to refer to the masculine,
feminine, neuter, single and plural as the identity of the person or persons may
require.
20.9 Immediately upon demand therefore made by the Lessor, the Lessee
shall execute and deliver to the Lessor such additional documentation as is
reasonably necessary to effectuate the intent of this Lease.
20.10 The titles contained in this Lease do not constitute a part of this
Lease, but are for informational purposes only.
20.11 The word "including" shall be a word of enlargement rather than a
word of limitation and shall be deemed to mean "including but not limited to"
rather than "including only".
20.12 If any provisions of this Lease or the application thereof be held
invalid or unenforceable, the remainder of this Lease and the application
thereof to other parties or circumstances shall not be affected thereby, unless
such holding substantially and materially deprives Lessee of the use of the
Leased Premises or Lessor of the Rent, Additional Rent or any other amount under
this Lease, in which event this Lease shall forthwith terminate as if by
expiration of the Term hereof.
20.13 Neither this Lease nor any memorandum thereof shall be recorded.
20.14 This Lease, together with the Exhibit attached hereto, contains the
entire understanding between the parties hereto with respect to the subject
matter hereof and such understanding may not be amended, modified or terminated
except in writing and duly executed by the parties hereto.
20.15 This Lease shall not be more strictly construed against one party
than the other.
20.16 This Lease shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators, legal
representatives, successors and, where permitted by this Lease, assigns.
20.17 The Lessor and the Lessee each hereby consent to the jurisdiction of
all state and federal courts having their situs in the Commonwealth of
Pennsylvania.
20.18 This Lease and all interpretations hereof and controversies
hereunder shall be construed in accordance with the laws of the Commonwealth of
Pennsylvania.
IN WITNESS WHEREOF, AND INTENDING TO BE LEGALLY BOUND HEREBY, the parties
hereto have caused this Lease to be executed as of the day and year first above
written.
LESSOR:
17
/s/Xxxxxxx Xxxxxx
---------------------------------------
Xxxxxxx Xxxxxx
LESSEE: LAKELAND INDUSTRIES,INC.
By: /s/Xxxxxxxxxxx X. Xxxx
------------------------------------
President:
Attest:
--------------------------------
Secretary:
18
EXHIBIT "A"
RULES AND REGULATIONS
---------------------
The following are the rules and regulations pertaining to the Leased
Premises. These rules and regulations form an integral part of the Lease to
which they are attached ("Lease") and shall be fully binding upon the Lessee
therein named as if contained in the Lease in their entirety. Unless the context
clearly requires otherwise, each term used herein shall have the meaning
ascribed to it in the Lease.
1. No smoking shall be permitted at any time in the Building
2. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors and halls shall not be obstructed or encumbered by any
Lessee or used for any purpose other than ingress and egress to and from the
Leased Premises.
3. No awnings or other projections shall be attached to the outside walls
of the Building without the prior written consent of the Lessor. No curtains,
blinds, shades or screens shall be attached to or hung in or used in connection
with any window or door of the Leased Premises without obtaining the prior
written consent of the Lessor. In the event that such consent is given, such
awnings, projections, curtains, blinds, shades, screens and other fixtures must
be of a quality, type, design and color and attached in a manner approved by the
Lessor and shall be removed by the Lessee at the Lessee's sole cost and expense
immediately upon subsequent demand by the Lessor.
4. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by the Lessee on any part of the outside of the
Leased Premises or the Building without obtaining the prior written consent of
the Lessor.
5. Interior signs on doors and any directory tablet shall be inscribed and
painted or affixed at the sole cost and expense of the Lessee and shall be of a
size, color and style approved by the Lessor.
6. The sashes, sash doors, skylights, windows and doors that reflect or
admit light and air into the vestibules, stairways, corridors, halls or other
public places in the Building shall not be covered or obstructed by the Lessee,
nor shall any bottles, parcels or other articles be placed on any window xxxxx
in the Building.
7. No utility sinks or other plumbing fixtures shall be used for any
purpose other than those for which they were constructed, and no sweepings,
rubbish, rags or other substances shall be thrown therein. All damages resulting
from any misuse of the fixtures shall be borne by the Lessee.
8. The Lessee shall not in any way deface any part of the Leased Premises
or the Building. No boring, cutting or stringing of wire shall be permitted,
except with the prior written consent of the Lessor, and, in such event as the
Lessor shall direct.
9. No bicycles, vehicles or animals of any kind shall be brought into or
kept in the Building.
10. No cooking shall be done or permitted in the Building other than by
means of a standard microwave oven. In no event shall any unusual or
objectionable odors be produced upon or allowed to permeate the Leased Premises.
11. The Lessee shall not make, or permit to be made, any unseemly or
disturbing noises or disturb or interfere with occupants of the Building.
12. No additional locks or bolts of any kind shall be placed upon any
doors or windows in the Building by the Lessee nor shall any change be made in
existing locks or the mechanisms thereof. The Lessee must, upon the termination
of his tenancy, restore to the Lessor all keys. In the event of the loss of any
keys so furnished, the Lessee shall pay to the Lessor the cost of changing all
applicable locks.
13. All removals or the carrying in or out of any safes, freight,
furniture or bulky matter of any description must take place during the hours
which the Lessor may determine from time to time.
14. Canvassing, soliciting and peddling in the Building are prohibited and
the Lessee shall cooperate to prevent the same.
15. In the event that the Lessee shall use or occupy the Leased Premises
or admit any person to the Building other than on normal business days during
normal business hours, the Lessee shall be responsible for the locking of all
exterior doors of the Building which the Lessee uses and shall otherwise
cooperate fully with the Lessor to maintain security within the Building at all
times.
16. The Lessee shall not at any time bring or allow to be brought into the
building any flammable, combustible or explosive chemical, fluid, material or
substance of any nature; provided, however, that the foregoing prohibition shall
not be interpreted to preclude supplies customarily used for office purposes in
customary amounts.
17. The Lessor reserves the right to make such other and further
reasonable rules and regulations as in the Lessor's judgment may from time to
time be needed for the safety, care and cleanliness of the Building and for the
preservation of good order therein and any such other or further rules and
regulations shall be binding upon the Lessee with the same force and effect as
if they had been inserted herein at the time of the execution hereof. No such
additional rules and regulations shall become effective as against the Lessee
until the Lessor shall have given the Lessee written notice thereof, and unless
such additional rules and regulations shall be of general applicability with
respect to all other tenants in the Building.
