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LEASE AGREEMENT
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THIS LEASE AGREEMENT (this "Lease") is made this 12th day of April,
2004, by and between, JAD ASSOCIATES, LLC, a Pennsylvania limited liability
company ("Landlord"), and X.X. XXXX CO., INC. d/b/a WHALING CITY IRON CO., a New
Jersey corporation ("Tenant").
BACKGROUND
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As more fully set forth herein, Landlord desires to lease the Premises
(as defined below) to Tenant, and Tenant desires to lease the Premises (as
defined below) from Landlord.
AGREEMENT
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Intending to be legally bound, Landlord and Tenant hereby agree as
follows:
1. PREMISES; TERM; RENEWAL
(a) Landlord hereby lets and demises to Tenant, and Tenant does
hereby hire and lease from Landlord for the term and upon the terms, conditions
and covenants set forth herein, all that certain piece or parcel of land and the
buildings and other improvements thereon, known as 00 Xxxxx Xxxxxx, Xxx Xxxxxxx,
Xxxxxxxxxxxxx 00000 (referred to hereinafter as the "Premises"), as more fully
described in Exhibit "A" hereto.
(b) Subject to the Extension Options described in subsection (c) of
this Section 1, the term of this Lease shall commence on the date hereof (the
"Commencement Date") and expire at midnight on April 12, 2009 (the "Termination
Date").
(c) Tenant shall have the option, in its sole discretion, to extend
the term of this Lease for up to three additional terms of five (5) years each
("Extension Option"). The first Extension Option shall commence on April 12,
2009 and extend through April 12, 2014, the second Extension Option shall
commence on April 12, 2014 and extend through April 12, 2019, and the third
Extension Option shall commence on April 12, 2019 and extend through April 12,
2024. Tenant shall exercise any such Extension Option, in writing, no later than
ninety (90) days prior to the end of the initial term hereof or the end of any
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particular Extension Option hereof, as the case may be. If Tenant exercises any
such Extension Option, then the Termination Date of this Lease shall be extended
until the end of any such five year Extension Option. All of the terms,
covenants and conditions of this Lease shall equally pertain in all respects to
any extension or extensions of the term of this Lease.
(d) Subject to the representations, covenants and warranties of
Landlord herein, Tenant is accepting the Premises in the condition as it exists
on the date of this Lease.
2. RENT.
(a) The annual rent due hereunder shall be at the rate as described
on Schedule 1 attached hereto. Commencing on the Commencement Date and on the
first day of each month thereafter during the term hereof, Tenant shall pay to
Landlord, in advance, monthly installments of the rent described on Schedule 1.
Every installment of rent shall be payable at 000 Xx. Xxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxxx 00000, or to any other party at such other address as Landlord
shall specify.
(b) If the term does not begin on the first day and/or end on the
last day of a month, the rent for that partial month shall be prorated by
multiplying the monthly rent by a fraction, the numerator of which is the number
of days of the partial month included in the term and the denominator of which
is the total number of days in the month.
3. REAL ESTATE TAXES/UTILITIES.
(a) Tenant shall remit prior to delinquency all real estate taxes
assessed or levied against the Premises during the term of this Lease and shall
promptly send Landlord proof of payment thereof. Landlord shall provide Tenant
with a statement of real estate taxes, notices and assessments with respect to
the Premises.
(b) Tenant shall pay all charges for gas, electricity, water and
sewer rents and service charges, telephone and communication services and other
utility services used, rendered or consumed by Tenant upon the Premises. All
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such utilities shall be in the name of Tenant.
4. TENANT'S USE. The Premises may be used for operating a metal
manufacturing and fabrication business or for any other lawful business use.
5. COMPLIANCE WITH LAWS; GOVERNMENTAL REGULATIONS.
(a) As of the Commencement Date, Landlord has received no notice of
violation any applicable laws, ordinances, rules and regulations of governmental
authorities, or if any such notice has been delivered to Landlord, Landlord has
corrected such violation.
(b) Tenant shall through-out the term of this Lease, at Tenant's
sole cost and expense, promptly comply with all laws, ordinances, notices,
orders, rules, regulations and requirements of all federal, state and municipal
governments, and notices, orders, rules and regulations of the National Board of
Fire Underwriters, or any other body now or hereafter constituted exercising
similar functions, relating to all or any part of the Premises, or to the use or
manner of use of the Premises or to the sidewalks, parking areas, curbs and
access ways adjoining the Premises; provided, however, the Tenant's obligations
hereunder shall be limited to those applicable to the manner in which it
conducts its business on the Premises generally.
(c) Notwithstanding the provisions of Section 5.b above, Landlord,
and not Tenant shall be responsible to make all repairs necessary to maintain
the structural stability of the buildings on the Premises and to the roof of the
buildings on the Premises, or which are required to effect compliance of the
roof and structural portions of the buildings with any laws or ordinances, and
any notices, orders, rules, regulations and requirements of all federal, state
and municipal governments, and notices, orders, rules and regulations of the
National Board of Fire Underwriters (or any other body now or hereafter
constituted exercising similar functions).
(d) Unless such observance or compliance shall be an express
obligation of Tenant hereunder, Landlord shall throughout the term of this
Lease, at Landlord's sole cost and expense, promptly observe and comply with all
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present and future laws, ordinances, requirements, orders, directions, rules and
regulations of any federal, state, county and municipal government and of all
other governmental authorities having or claiming jurisdiction over the
Premises.
6. INSURANCE
(a) Tenant shall maintain at Tenant's own cost and expense
throughout the term of this Lease insurance against claims for personal injury
(including death) and property damage arising from occurrences on, in or about
the Premises, with broad form contractual liability coverage, under a policy or
policies of comprehensive liability coverage or commercial general liability
insurance, with reasonable and customary limits for the Premises.
(b) Landlord, at Landlord's sole cost and expense, shall maintain
and keep in effect throughout the term of the Lease insurance against loss or
damage to the buildings and all other improvements now or hereafter located in
the Premises by fire and all other casualties as may be included in forms of all
risk insurance from time to time commonly available in the Commonwealth of
Massachusetts, in an amount equal to the full insurance replacement value
(without depreciation) of the Premises. Tenant shall reimburse Landlord for this
cost and expense.
(c) Landlord and Tenant hereby release each other and the other's
partners, agents, and employees, to the extent of each party's insurance
coverage, from any and all liability or responsibility to the other or anyone
claiming through or under it or them by way of subrogation or otherwise, for any
loss or damage occasioned to the Landlord or the Tenant, as the case may be, or
to their respective property, as a result of fire or other casualty, even if
such loss or damage shall have been caused by default or negligence of the other
party or anyone for whom such party may be responsible. The foregoing release
shall be effective only with respect to loss or damage occurring during such
time as the appropriate policy of insurance shall contain a clause to the effect
that this release shall not affect said policy or the right of the insured to
recover thereunder. If any policy does not permit such a waiver, and if the
party to benefit therefrom requests that such a waiver be obtained, the other
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party agrees to obtain an endorsement to its insurance policies permitting such
waiver of subrogation if it is available. If an additional premium is charged
for such waiver, the appropriate insured party obtaining such waiver agrees to
pay the amount of such additional premium.
(d) Tenant may carry any insurance required by this Section 6 under
a blanket policy applicable to the Premises for the risks and in the amounts
required pursuant to this Section 6.
7. ENVIRONMENTAL WARRANTIES AND REPRESENTATIONS OF LANDLORD.
(a) REPRESENTATIONS AS TO ENVIRONMENTAL ISSUES. Landlord represents
and warrants to Tenant that at all times prior to and up to and including the
date of execution of this Lease, that all activities of Landlord and, to
Landlord's knowledge, all predecessors in interest, have occupied the Premises
and conducted activities upon such Premises in compliance with federal, state
and local statutes, ordinances, regulation and orders relating to the protection
of the environment or public health and safety, including without limitation,
those concerning (a) those activities, (b) operation, maintenance, report or
construction of any improvements or equipment or other personal property, (c)
discharges, emissions, releases or threatened releases of any kind to the air,
soil, surface water, or groundwater, and (d) storage, transportation, treatment,
disposal or handling of any materials, including waste water or Hazardous
Substances (as hereinafter defined), at or connected with any activity at the
Property ("Environmental Laws"). For purposes of this Lease, "Hazardous
Substances" includes materials that are or contain "hazardous substances",
"hazardous waste", "hazardous materials", "toxic substances" or "regulated
substances", as defined pursuant to any Environmental Law.
(b) Landlord represents and warrants that to the best of its
knowledge, after due investigation, there is no asbestos in the Premises. If any
asbestos shall be discovered or revealed at any time during the term, Landlord
shall at its sole cost and expense either remove, safely encapsulate, or
implement an operations and maintenance program for such asbestos, in compliance
with (il) all applicable laws, and (ii) recommendations of an expert retained by
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Landlord at its expense, reasonably acceptable to Tenant.
(c) SITE CONTAMINATION. Neither Landlord nor, to Landlord's
knowledge, any other party, has discharged, released, leaked, spilled, emitted
or disposed of any Hazardous Substance in, or over, or under, the Premises. No
Hazardous Substance is present on, in, over, or under, or is migrating from such
real property in such a manner as may require remediation under any
Environmental Law or, to Landlord's knowledge, is present on, over or under any
premises adjacent to the Premises.
(d) NPL AND CERCLIS. Neither the Premises nor, to Landlord's
knowledge, any adjacent premises is listed or proposed for listing on the
National Priorities List ("NPL") or the Comprehensive Environmental Response
Compensation and Liability Information System ("CERCLIS") list established
pursuant to the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. ss. 9601 ET SEQ ("CERCLA"), or any other hazardous site list
promulgated by any federal, state or local governmental authority.
(e) LIENS. There is no lien imposed or, to Landlord's knowledge, any
circumstance that is reasonably likely to lead to the imposition of a lien upon
the Premises pursuant to any Environmental Law.
(f) OTHER HAZARDOUS OR TOXIC MATERIALS. No polychlorinated biphenyls
or substances containing polychlorinated, biphenyls, no asbestos or materials
containing asbestos, and no storage tanks are present under, over, or on the
Premises.
(g) GOVERNMENTAL NOTICES AND PERMITS.
(1)Landlord has not been notified by any governmental authority
of any violation by Landlord of or any investigation under any Environmental Law
of or any investigation under any Environmental Law or of any potential
liability of any person of entity regarding the Premises or activities thereon
relating to the presence of Hazardous Substances or waste of any kind on, over,
under, migrating from or affecting such Premises.
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(2)Landlord has obtained all registrations with, licenses from,
and permits or approvals, including amendments thereto, issued by governmental
agencies pursuant to Environmental Laws which are required in connection with
the Premises (collectively "Permits"). All such Permits are in full force and
effect. Landlord will assist Tenant in giving notice to applicable governmental
authorities and in transferring or reissuing to Tenant any new Permits necessary
to continue operations at the Premises, or in obtaining for Tenant any new
Permits required of tenant under any Environmental Law.
(h) WASTE DISPOSAL SITES. There are no facilities to which Hazardous
Substances or waste of any kind have been sent by or on behalf of Landlord for
handling, treatment, storage or disposal of any kind or use, or to which any
third party under contract or other arrangement with Landlord has sent Hazardous
Substances or waste of any kind received from Landlord for handling, treatment,
storage or disposal.
(i) INDEMNIFICATION. Landlord hereby agrees to indemnify and to hold
harmless Tenant, as well as Tenant's officers, directors, shareholders,
employees, attorneys, or agents, of, from and against any and all expense, loss
or liability suffered or incurred by any of them by reason of Landlord's breach
of any of the representations and warranties set forth in this Section 7, and,
in addition thereto, of, from and against (i) any and all expenses that any of
them may incur in complying with any Environmental Laws, or (ii) any and all
costs that any of them may incur in studying, assessing, containing, removing,
remedying, mitigating, or otherwise responding to, the release of any Hazardous
Substance or waste at or from the Premises, or (iii) any and all costs for which
any of them may be liable to any governmental agency for studying, assessing,
containing, removing, remedying, mitigating, or otherwise responding to, the
release of a Hazardous Substance or waste water at or from the Premises, or (iv)
any and all legal fees and costs incurred by any of them in connection with any
of the foregoing. This subsection (i) shall not apply, however, to any such
expenses, losses, or liabilities that are solely a result of Tenant's violation
of any Environmental Laws in connection with its operation and activities on the
Premises. The indemnification obligations of Landlord set forth in this
subsection (i) shall survive the termination or expiration of this Lease for any
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reason whatsoever, and shall be fully enforceable and binding against and upon
Landlord following any such expiration or termination.
8. MAINTENANCE AND REPAIR.
(a) Except at otherwise provided herein, Tenant, at its own cost and
expense, shall keep the interior of the Premises and all improvements made by
Tenant in good order and shall be responsible for the full cost of the repair to
any such item, unless the repair is necessitated by damage for which Landlord is
responsible under (b) below.
(b) Landlord shall keep in good order, condition and repair, and
shall replace when necessary the structural portions of the Premises, the roof
and roof membrane, foundations, appurtenances, heating, ventilation and air
conditioning equipment, electrical systems, plumbing systems, lighting, storm
drainage and other mechanical systems of the Premises, exterior walls and
windows of the Premises and utility and sewer pipes serving the Premises.
Landlord shall be responsible for repairing any damage to the Premises caused by
leaks in the roof, bursting pipes (by freezing or otherwise) or by defects in
the Premises. Tenant shall keep all adjoining sidewalks in a neat and clean
condition and promptly remove all dirt, trash, snow and ice therefrom. Tenant
shall keep all common areas of the Premises neat and clean and in good order and
repair.
(c) Landlord, Landlord's agents and employees, shall have the right
to enter the Premises at any reasonable times for the purpose of making repairs
necessary for the preservation of the Premises or otherwise perform Landlord's
obligations under this Lease. Landlord shall make a reasonable effort to effect
such repairs and perform such obligations with a minimum of interference to the
Premises and the business conducted therein, and, when practicable, all work
shall be done after Tenant's business hours unless Tenant shall otherwise
direct.
9. FIRE OR OTHER CASUALTY. Tenant shall give Landlord prompt notice of
any material fire or casualty occurring on or to the Premises. If any part of
the Premises is damaged or destroyed by fire or other casualty, the rent shall
be apportioned and suspended until the Premises are restored, taking into
account the proportion of the Premises rendered untenantable. Promptly following
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such damage or destruction, (a) if the damage or destruction is total or
constitutes a major structural injury to the building or the Premises, then
either party may, at its option, terminate this Lease by giving written notice
to the other, in which event this Lease shall terminate on the date of such
damage or destruction with the same effect as if the full term had expired on
that date; (b) if the damage or destruction is not total or does not constitute
a major structural injury to the building or Landlord does not elect to
terminate as permitted in this Section 9, Landlord shall, as soon as
practicable, undertake restoration and repair work necessary to restore the
Premises to the same condition as existed prior to the damage or destruction as
nearly as reasonable. Notwithstanding anything to the contrary contained herein,
but without limitation to Tenant's rights, if such restoration or repair is not
complete within fifteen(15) days after the casualty occurs, Tenant shall have
the right, upon written notice to Landlord, to terminate this Lease, in which
event, this Lease shall terminate on the date of such damage or destruction with
the same effect as if the full Term had expired on that date.
10. ALTERATIONS AND ADDITIONS; TENANT'S EQUIPMENT AND FIXTURES.
(a) Tenant shall not make any interior or exterior structural
alterations or additions to the Premises other than minor non-structural
alterations or improvements or install, rearrange or add to any electric, gas,
water or other similar utility lines without first securing Landlord's prior
written approval, which consent shall not be unreasonably withheld, delayed or
conditioned. In requesting approval for any structural alterations, Tenant shall
furnish Landlord with plans and specifications, in reasonable detail for such
work, and any work approved by Landlord shall be done in accordance with such
plans and specifications. Any improvements, alterations and additions shall be
executed by Tenant in a good and workmanlike manner. Notwithstanding the
foregoing, Tenant shall have the right to make non-structural alterations to the
Premises without first obtaining Landlord's prior written consent, provided that
the cost of each such alteration shall not exceed $50,000. All alterations
additions and improvements to the realty shall be a part of the Premises and
become the property of the Landlord.
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(b) All items of Tenant's equipment, machinery and personal property
not affixed to the Premises shall remain the property of Tenant. Tenant shall
have the right to install trade fixtures required by Tenant, to remove any and
all such trade fixtures from time to time, and Tenant shall remove all such
trade fixtures (whether installed during or before the term of this Lease)
before expiration or termination of this Lease. Tenant shall repair and restore
any damage or injury to the Premises caused by the installation and/or removal
of any such trade fixtures.
11. LIENS. Landlord warrants and represents to Tenant that the Premises
are not affected by any liens, encumbrances or restrictions that would interfere
with Tenant's use of the Premises. Tenant shall not suffer or permit any
mechanics liens to be filed against the fee of the Premises or Tenant's
leasehold interest therein because of work, services or materials supplied or
claimed to have been supplied to Tenant or anyone through or under Tenant.
Tenant shall not suffer or permit any lien for services furnished thereto or any
public improvements benefiting the Premises. Tenant agrees to indemnify and save
Landlord harmless from nay liability, claim, demand, judgment, lien, violation,
suits, costs and expenses, including reasonable attorney's fees, arising in any
manner from work performed in the Premises by or at the discretion of Tenant or
anyone holding all or part of the Premises through or under Tenant.
12. CONDEMNATION.
(a) If the entire Premises are taken by eminent domain, or purchased
in lieu thereof(hereafter called "condemnation"), this Lease will terminate on
the date that possession of the Premises is taken by the condemning authority.
(b) If a portion of the Premises less than the whole is condemned,
provided the remainder continues in Tenant's judgment to be suitable for the
business of Tenant, this Lease shall terminate only for the part taken, and
otherwise shall continue in full force and effect for the remaining portion of
the Premises with an abatement of rent in the same proportion as to the square
feet of leased space so taken or condemned.
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(c) In the event of either a partial or entire taking, Landlord
reserves to itself the full amount of any award or compensation attributable in
whole or in part to the fair market value of the Premises, or to the value of
Tenant's Leasehold interest in the Premises. Notwithstanding the foregoing,
however, Landlord does not reserve, and Tenant does not waive in favor of
Landlord, and may make a claim and receive from the condemning authority any
compensation attributable to Tenant's own machinery and equipment or for any
moving expenses for which Tenant may be entitled to compensation under law.
(d) If the condemnor should take only the right to possession for
the duration of any emergency or other temporary condition, then,
notwithstanding anything hereinabove provided, this Lease shall continue in full
force and effect without any abatement of rent, but the amounts payable by the
condemnor with respect to any period of time prior to the expiration of sooner
termination of this Lease shall be paid by the condemnor to Landlord and the
condemnor shall be considered a subtenant of Tenant. If the amounts payable
hereunder by the condemnor are paid in monthly installments, Landlord shall
apply the amount of such installments, or as much thereof as may be necessary
for the purpose, toward the amount of rent due from Tenant as rent for that
period, and Tenant shall pay to Landlord any deficiency between the monthly
amount thus paid by the condemnor and the amount of rent.
13. INDEMNIFICATION OF LANDLORD. Subject to Section 6(c), Tenant hereby
indemnifies, and shall pay, protect and hold Landlord harmless from and against
all liabilities, loses, claims, demands, costs, expenses (including reasonable
attorneys' fees and expenses) and judgments of any nature arising, or alleged to
arise, from or in connection with (a) any injury to, or the death of, any person
or loss or damage to property on or about the Premises arising from or connected
with the possession, use, condition, occupancy, maintenance or repair of the
Premises but only to the extent caused by the negligence of Tenant or its
agents, or (b) any violation, or alleged violation by Tenant of this Lease or of
any legal requirements.
14. INDEMNIFICATION OF TENANT. Subject to Section 6(c), Landlord hereby
indemnifies, and shall pay, protect and hold Tenant harmless from and against
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all liabilities, losses, claims, demands, costs, expenses (including reasonable
attorney's fees and expenses) and judgments of any nature arising, or alleged to
arise, from or in connection with (a) any injury to, or the death of, any person
or loss or damage to property on or about the Premises or any adjoining property
arising from or connected with the ownership, possession, use, condition,
design, occupancy, constructions, maintenance, repair or rebuilding of the
Premises or any adjoining property, unless such injury or damage is caused by
the negligence of Tenant or its agents, or (b) any violation, or alleged
violation, by Landlord of this Lease or of any legal requirements.
15. DEFAULT BY TENANT. The occurrence of any one of the following shall
constitute an event of default ("Event of Default") by Tenant:
(a) The abandonment of the Premises by Tenant.
(b) The failure by Tenant to make any payment of Rent or any other
payment required to be made by Tenant hereunder within seven (7) days after
receipt of written notice from Landlord that the same is due, except that such
notice need not be given in more than two (2) instances in any twelve (12) month
period.
(c) The failure by Tenant to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed by
Tenant within thirty (30) days after written notice thereof from Landlord;
provided, however, that if the nature of such failure is such that it cannot
reasonably be cured within such thirty (30) day period, Tenant shall not be
deemed to be in default if Tenant shall within such period commence to cure the
failure and, thereafter, diligently prosecute the same to completion. As a
condition of its effectiveness, notice by Landlord shall state with specifically
the provisions of this Lease alleged to be breached and the act or acts of
Tenant acceptable o Landlord as a cure thereof.
(d) The making by Tenant of any general assignment, or general
arrangement for the benefit of creditors; the filing by or against Tenant of a
petition to have Tenant adjudged a bankrupt or a petition for reorganization or
arrangement under any law relating to bankruptcy (unless, in the case of a
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petition filed against Tenant, the same is dismissed within ninety (90) days);
the appointment of a trustee or receiver to take possession of substantially all
of Tenant's assets located at the Premises or of Tenant's interest in this
Lease, where possession is not restored to Tenant within thirty(30) days; or the
attachment, levy, execution or other judicial seizure of substantially all of
Tenant's assets locate at the Premises or of Tenant's interest in this Lease,
where such seizure is not discharged within thirty (30) days.
16. LANDLORD'S REMEDIES. Upon the occurrence of an Event of Default by
Tenant, at anytime thereafter, with or without notice or demand and without
limiting the Landlord in the exercise of any right or remedy which Landlord may
have by reason of such default or breach:
(a) Accelerate the whole or any part of the Rent and other charges,
payments, costs and expenses herein agreed to be paid by Tenant for the entire
unexpired balance of the Term. Such amount if so accelerated shall, in addition
to any Rent already due and payable, be deemed due and payable as if, by the
terms and provisions of this Lease, such accelerate Rent and other charges,
payments, costs and expenses were on that date payable in advance.
(b) Reenter the Premises and remove all persons and all or any
property therefrom, either by summary disposes proceedings or by any suitable
action or proceeding at law, or by force or otherwise, without being liable to
indictment, prosecution or damages therefor, and reposses and enjoy the
Premises, together with all other installations of Tenant. Upon recovering
possession of the Premises by reason of or based upon or arising out of a
Default on the part of the Tenant, Landlord may, at Landlord's option, either
terminate this Lease or make such alterations and repairs as may be necessary in
order to relet the Premises; and relet the Premises or any part or parts
thereof, either in Landlord's name or otherwise, for a term or terms which may
at Landlord's option be less than or exceed the period which would otherwise
have constituted the balance of the Term and at such rent or rents and upon such
other terms and conditions as in Landlord's sole discretion may seem advisable
and to such person or persons as may in Landlord's discretion seem best. Upon
each such reletting all rents received by Landlord from such reletting shall be
applied: first, to the payment of any amounts other than Rent due hereunder from
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Tenant to Landlord; second, to the payment of any costs and expenses of
obtaining possession of and reletting the Premises, including brokerage fees and
attorney's fees and all costs of such alterations and repairs; third, to the
payment of Rent due and unpaid hereunder; and the residue, if any, shall be held
by landlord and applied in payment of future Rent as it may become due and
payable hereunder. If such rentals received rom such relating during any month
shall be less than that paid during that month by Tenant hereunder, Tenant shall
pay any such deficiency to Landlord. Such deficiency shall be calculated and
paid monthly. No such reentry or taking possession of the Premises or the making
of alterations and/or improvements thereto or the reletting thereof shall be
construed as an election on the part of Landlord to terminate this Lease unless
written notice of such election be given to Tenant. Notwithstanding any such
reletting without termination, Landlord may at any time thereafter elect to
terminate this Lease for such previous Default. Tenant, for Tenant and Tenant's
successors and assigns, hereby irrevocably constitutes and appoints Landlord as
Tenant's and Tenant's successors and assigns, hereby irrevocably constitutes and
appoints Landlord as Tenant's and Tenant's successors' and assigns' agent to
collect the rents due and to become due under all subleases of the Premises or
any parts thereof without in any way affecting Tenant's obligation to pay any
unpaid balance of Rent due or to become due hereunder.
(c) To terminate this Lease and the Term hereby created without any
right on the part of Tenant to waive 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, in addition to any and all sums and
damages for violation of Tenant's obligations hereunder in existence at the time
of such termination, damaged with respect to the unexpired portion of the Term
in an amount equal to the amount of the Rent reserved for the balance of the
Term, as well as all other charges, payments, costs and expenses herein agreed
to paid by Tenant for such period, all discounted at the rate of six percent(6%)
per annum to their then present worth, less the fair rental value of the
Premises for the balance of the Term, also discounted at the rate of six
percent(6%) per annum to its them present worth, all of which amount shall be
immediately due and payable from Tenant to Landlord.
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(d) In the event of a breach of threatened breach by Tenant of any
of the covenants or provisions hereof, Landlord shall have the right of
injunction and the right to invoke any remedy allowed at law or in equity as if
reentry, summary proceedings and other remedies were not herein provided for.
(e) No right or remedy herein conferred upon or reserved to Landlord
is intended to be exclusive of any other right or remedy herein or by law
provided but each shall be cumulative and in addition to every other night or
remedy given herein or now or Hereafter existing at law or in equity or by
statute, subject however, to legal and equitable principles limiting the
exercise of duplicative remedies.
(f) If permitted by applicable law, Tenant expressly waives:
(i) The benefit of all laws, now or hereafter in force,
exempting any goods on the Premises or elsewhere from levy or sale in any legal
proceeding taking by Landlord to enforce any rights under this Lease;
(ii) The right to delay execution on any real estate that may
be levied upon to collect any amount that may become due under the terms and
conditions of this Lease and any right to have the same appraised; and
(iii) The right to three (3) months' notice and/or fifteen (15)
or thirty (30) days' notice required under certain circumstances by the Landlord
and Tenant Act of 1951, and Tenant hereby agrees that five (5) days' notice
shall be sufficient in either or any such case.
(g) For the purpose of calculating the "accelerated Rent" payable
under paragraph (a) of this Section and the "Rent reserved for the balance of
the Term" for the purposes of paragraph (c) of this Section of this Lease (but
without discounting as provided therein), the amount payable by Tenant for real
property taxes for the balance of the Term shall be equal to the sum of the
highest amount paid or payable by Tenant in any calendar year for real property
taxes multiplied by the number of calendar years (including any fractional
calendar year) remaining in the Term.
15
(h) ATTORNEYS' FEES. In the event of any default by Tenant of any of
its obligations under this Lease, Tenant shall immediately pay to Landlord, upon
demand, an amount equal to all reasonable attorneys' fees and court costs
incurred by Landlord in enforcing its rights and remedies under this Lease,
whether or not an administrative and/or judicial action is commenced by Landlord
against Tenant by reason of such default.
(i) CURING TENANT'S DEFAULTS. If Tenant shall be in default of any
of its obligations under this Lease, Landlord may (but shall not be obligated to
do so), in addition to any other rights it may have in law or equity or under
this Lease, cure such default on behalf of Tenant, and Tenant shall reimburse
Landlord upon demand for any reasonable sums paid or cost incurred by Landlord
in curing such default, together with interest at the Interest Rate from the
respective dates of Landlord's making of the payments and incurring of the
costs, on all sums advanced by Landlord as aforesaid, which sums and costs
together with interest thereon shall be deemed Additional Rent payable under
this Lease.
(j) WAIVER OF BREACH. The waiver by Landlord or Tenant of any breach
of any term, covenant or conditions contained in this Lease, shall not be deemed
to be a waiver of any subsequent breach of the same or any other term, covenant
or condition contained in this Lease.
(k) EFFECT OF DEFAULT ON PURCHASE OPTIONS. In the event of an Event
of Default by Tenant under this Lease, the Right of First Refusal shall
immediately terminate upon the occurrence of such Event of Default and
thereafter shall be of no further force and effect, and the parties hereto shall
thereafter have no further rights or obligations under Section 28 of this Lease.
17. SUBORDINATION.
(a) This Lease and all of the terms, covenants and conditions hereof
is and shall be subject and subordinate to any existing mortgage or mortgages
affecting the Premises. The foregoing notwithstanding, Landlord shall cooperate
in obtaining a nondisturbance agreement, in form reasonably satisfactory to
Tenant, from any existing mortgagee in favor of Tenant. Landlord agrees that the
subordination of this Lease to any future mortgage and Tenant's obligation to
16
attorn to any future mortgage shall be conditioned upon any such mortgagee
agreeing not to disturb Tenant's use and occupancy of the Premises and to
recognize Tenant's rights under this Lease, so long as Tenant is not in default
hereunder.
(b) As a condition of the subordination set forth in (a) above, such
mortgage shall contain a covenant binding upon the holder thereof, or a separate
agreement which shall be entered into with Tenant and the holders of the
mortgage to be recorded with such mortgage or other security agreement, to the
effect that:
(i) So long as Tenant observes the terms of this Lease, its
rights of possession to the Premises under the terms and provisions of the Lease
will not be affected or disturbed by the mortgage or other security agreement
for the bond or note or debt secured thereby:
(ii) If the mortgagee or owner comes into possession of the
Premises by foreclosure or otherwise, this Lease shall continue in effect and
shall not be terminated by any such proceeding;
(iii) If the Premises are sold or otherwise disposed of
pursuant to any right or power contained in the mortgage or other security
agreement or the bond or note secured thereby, or as a result of proceedings
thereon, the purchaser shall take title subject to this Lease and all the rights
of Tenant hereunder;
(iv) In the event the buildings and improvements on the
Premises are damaged by fire or other casualty, for which loss the proceeds
payable under the insurance policy or policies are payable to the mortgagee,
such insurance funds when paid, shall be made available for the purpose of
repair and restoration as provided in this Lease; and
(v) The agreement shall be binding upon the Landlord's
mortgagee and its prospective heirs, executors, administrators, personal
representatives, successors and assigns. Notwithstanding the foregoing, to the
extent the Premises are on the date of this Lease subject to a mortgage which
does not meet the above requirements, Landlord shall only be required to use its
best efforts to obtain an appropriate separate agreement of the mortgagee.
17
18. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not assign this Lease or sublet any portion of the
Premises without first obtaining Landlord's prior written consent thereto, which
consent shall not be unreasonably withheld, delayed or conditioned. Tenant's
entering into an assignment or sublease shall not release Tenant from its
obligations hereunder and no consent to an assignment or subletting shall be
deemed to be a consent to any further subletting or assignment. In addition,
Tenant shall not convey, mortgage, pledge, encumber or otherwise transfer
(collectively, "Pledge"), whether voluntarily or otherwise, this Lease or any
interest in or under this Lease. Any attempt by Tenant to assign or Pledge this
Lease or sublet the Premises in contravention of the terms of this Lease shall
constitute an event of default hereunder.
(b) If Landlord consents to an assignment of this Lease, each
assignee hereunder shall assume and be deemed to have assumed this Lease and
should be and remain liable jointly and separately with Tenant for all payments
and for the due performance of the terms, covenants, conditions and provisions
herein contained on Tenant's part to be observed. No assignment shall be binding
upon Landlord, unless the Assignee shall deliver to Landlord an instrument
containing a covenant of assumption by the assignee. The failure or refusal of
an assignee to execute the same shall not release the assignee from its
liability as set forth herein.
(c) Any consent by Landlord to an assignment or subletting shall not
constitute a waiver of strict future compliance by Tenant with the provisions of
this Section 18, nor shall it be deemed to release Tenant from the full
performance by Tenant of the terms, covenants, provisions or conditions
contained in this Lease.
(d) Notwithstanding the foregoing, Tenant shall have the right,
without Landlord's consent, to assign or sublease all or a portion of the
Premises, or the leasehold hereunder, to an Affiliate (or a combination of
Affiliates) or a Successor of Tenant. For purposes hereof, an "Affiliate" or
"Successor" of Tenant is an entity controlling, under common control with or
controlled by Tenant, including an entity resulting from a merger or
18
consolidation by Tenant. Any such Affiliate of Successor of Tenant must
expressly assume in writing a pro rata share of Tenant's obligations hereunder
in the proportion that the number of square feet of rentable area of the
Premises subleased or assigned to such Affiliate or Successor of Tenant bears to
the total number of square feet of rentable area in the Premises, without
relieving Tenant of any liability hereunder.
19. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) To induce Landlord to enter into this Lease, Tenant represents,
warrants and covenants to Landlord as follows:
i. VALID ORGANIZATION, GOOD STANDING AND QUALIFICATION. Tenant
is a corporation duly formed, validly existing and in good standing under the
laws of the State of New Jersey and is authorized to do business in the
Commonwealth of Massachusetts, has full power and authority to execute, deliver
and comply with Lease, and to carry on its business as it is now being
conducted.
ii. DUE AUTHORIZATION; NO LEGAL RESTRICTIONS. The execution and
delivery by Tenant of this Lease, the consummation of the transactions
contemplated by this Lease and the fulfillment and compliance with the
respective terms, conditions and provisions of this Lease have been duly
authorized by all requisite governance action of Tenant.
iii. PAYMENT OF OBLIGATIONS. Tenant will pay when due all
amounts due hereunder without set off, deduction or counterclaim.
iv. PAYMENT OF CHARGES. Tenant shall pay all charges incident
to this Lease, including, without limitation, all of the Landlord's legal fees
in connection with any amendment, assignment of this Lease, any subletting of
the Premises and with the enforcement of this Lease.
(b) LANDLORD'S REPRESENTATIONS, WARRANTIES AND COVENANTS. To induce
Tenant to enter into this Lease, Landlord represents, warrants and covenants to
Tenant as follows:
19
i. VALID ORGANIZATION, GOOD STANDING AND QUALIFICATION.
Landlord is a limited liability company, existing under the laws of the
Commonwealth of Pennsylvania, has full power and authority to execute, deliver
and comply with the lease, and to carry on its business as it is now being
conducted.
ii. DUE AUTHORIZATION; NO LEGAL RESTRICTIONS. The execution and
delivery by Landlord of this Lease, the consummation of the transactions
contemplated by this Lease and the fulfillment and compliance with the
respective terms, conditions and provisions of this Lease have been duly
authorized by all requisite governance action of Landlord.
iii. NO UNCURED NOTICES OF VIOLATIONS. As of the Commencement
Date, Landlord has received no notice of violation of any applicable laws,
ordinances, rules and regulations of governmental authorities, or if any such
notice has been delivered to Landlord, Landlord has corrected such violation.
iv. NO INTERFERENCE WITH USE. Landlord warrants and represents
to Tenant that to Landlord's knowledge the Premises are not affected by any
liens, encumbrances or private restrictions that would interfere with Tenant's
use of the Premises as described in Section 4 of this Lease.
v. TITLE TO PREMISES. Except for any mortgages, liens,
encumbrances, restrictions, obligations and exceptions granted to by Landlord to
Sovereign Bank in connection with Landlord's acquisition of the Premises on the
date hereof, Landlord is the owner of Premises, free and clear of any and all
liens, encumbrances, restrictions, obligations, and exceptions which would not
permit or limit Tenant's use of the Premises for the purpose set forth herein or
Tenant's other rights hereunder.
vi. STRUCTURAL COMPONENTS OF PREMISES. The structural
components of the Premises, including but not limited to the roof, heating
systems, air circulation system, wiring, ventilating systems, electrical system,
plumbing system, and lighting system are, as to their major components, in good
working order and condition.
20
20. TENANT'S CERTIFICATE. Tenant shall, from time to time within thirty
days of any request by Landlord, execute and deliver to Landlord a certificate
stating that this Lease is in full force and effect, has not been modified (or,
if it has been modified, identifying the modifications), that to Tenant's
knowledge no default exists on the part of either Landlord or Tenant (or, if
such a default does exist, specifying the default) and specifying the date to
which rent and other charges have been paid by Tenant hereunder.
21. SURRENDER. At the expiration or earlier termination of the term of
this Lease, Tenant shall surrender and deliver possession of the Premises and
all improvements and alterations thereto in good condition and repair, in a
clean condition, subjection to (a) reasonable wear and tear, (b) damage caused
by fire or other casualty and/or (c) damage caused by Landlord.
22. SIGNS. Tenant may to the extent and manner allowed by law or public
regulation place, erect, maintain or paint signs upon the Premises provided that
they are maintained by Tenant in good condition during the term hereof, and
Tenant shall remove all signs at the termination of this Lease, repairing any
damage caused by the installation and/and or removal thereof. Tenant shall also
have the right to install and place an appropriate sign or signs at or near the
entrance to the Premises.
23. LENDER'S REQUIREMENTS. Upon request of Tenant or Tenant's assignees
or any subtenant, Landlord shall execute and deliver any real estate consent or
waiver forms submitted by any vendors, lessors, chattel mortgages, or holders or
owners of any trade fixtures, signs, equipment, furniture or other personal
property of any kind and description kept on or installed on the Premises
setting forth the fact that Landlord waives, in favor of said vendor, lessor,
chattel mortgagee, owner or holder any lien, claim, interest or other right
therein superior to that of such vendor, lessor, chattel mortgagee, owner or
holder. Landlord shall further acknowledge that the property covered by such
consent or wavier forms is personal property (if in fact such is the case) and
not to become a part of the realty no matter how affixed thereto and that such
property may be removed from the Premises by the vendor, lessor, chattel
mortgagee, owner or holder at any time upon default in the terms of such chattel
21
mortgage or other similar documents, free and clear of any claim or lien of
Landlord.
24. NOTICES. All notices to be given to Landlord shall be sent by
certified U.S. mail, return receipt requested, or by overnight mail to the
following address:
JAD ASSOCIATES, LLC
000 Xx. Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Member
Notice to Tenant shall be sent by certified U.S. mail, return receipt requested
or by overnight mail to:
X.X. XXXX CO., INC. d/b/a
WHALING CITY IRON CO.
00 Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxxxxx 00000
The party to whom notice is to be given may change the address for the giving of
notices by delivering notice of such change to the other party. Notices are to
deemed delivered on the date received.
25. HOLDING OVER. Should Tenant continue to occupy the Premises after
expiration of the Term of this Lease, such tenancy shall be one at sufferance
from month to month at the terms and conditions otherwise set forth in this
Lease.
26. BROKER. Landlord and Tenant each represents and warrants to the
other that it has not dealt with any broker or finder, and that each party shall
indemnify and hold the other harmless if its representation is untrue.
27. RECORDATION. This Lease (or an appropriate memorandum thereof)
shall be recorded in the appropriate Recorder of Deeds Office by Landlord, at
Landlord's sole cost and expense, promptly after the date of the execution and
delivery hereof.
28. RIGHT OF FIRST REFUSAL. Landlord grants to Tenant the right of
first refusal to purchase the Premises from Landlord as follows:
22
a. In the event Landlord desires to sell the Premises, Landlord
shall provide prompt written notice (such notice shall be referred to in this
Section 28 as the "Notice") of that desire to Tenant prior to soliciting any
offers for purchase. Tenant shall have the right, but not the obligation, within
thirty (30) days after receipt of the Notice, to purchase the Premises on the
terms and conditions contained in this Section 28 ("Purchase Option").
In the event Tenant desires to purchase the Premises, it must provide
written notice of that election to Landlord within said thirty (30) day period
after the receipt of the Notice. Non-delivery of written acceptance by Tenant
within the thirty (30) day period shall be conclusive of the fact that Tenant
chooses not to purchase the Premises.
The written notice shall specify a closing date which shall be no more
than one hundred and eighty (180) days after the date of the written notice.
Upon the timely exercise of the Purchase Option by Tenant, this Lease, together
with the notice from Tenant exercising the Purchase Option, shall also be deemed
to be an agreement of sale and purchase between Landlord and Tenant with respect
to the Premises without the necessity of any further act or agreement; provided,
however, that, pending the consummation of closing for such purchase and sale,
this Lease will nevertheless also remain in full force and effect, as a lease,
and Tenant will remain obligated to perform all of its obligations under this
Lease, including without limitation the obligation to pay rent. Closing on the
sale and purchase of the Premises pursuant to this Section 28 shall be held at
the offices of the Tenant's counsel. If this Lease shall have been terminated or
shall have expired prior to the closing of the sale or prior to the delivery of
the Notice by Landlord to Tenant, then the parties shall enter into a customary
and reasonable agreement of sale for the Premises incorporating the terms and
conditions set forth in this Section 28.
b. The purchase price ("Purchase Price") for the Premises shall be
the fair market value as of the date of the written notice of the exercise of
the Purchase Option and shall be paid at closing by wire transfer of immediately
available funds to an account designated by Landlord.
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If Landlord and Tenant are unable to agree between themselves on the
fair market value of the Premises within twenty (20) days following the exercise
of the Purchase Option, then Landlord and Tenant shall agree upon the selection
of a qualified appraiser who shall determine the fair market value. The
determination of the appraiser shall be binding on the parties. If Landlord and
Tenant are unable to agree upon the selection of an appraiser within ten (10)
days after the expiration of such twenty day period, then the fair market value
shall be determined by two appraisers, one to be chosen by each of the Landlord
and Tenant. If either party fails to select an appraiser as required within five
(5) days, the appraiser chosen by the other party shall determine the fair
market value. The fair market value as determined by the sole appraiser, or the
average of the fair market values as determined by each of the two appraisers,
as the case may be, shall be final and binding on the parties. The costs and
expenses of the appraiser(s), shall be borne equally by each of Landlord and
Tenant.
c. Title to the Premises shall be conveyed by special warranty
deed and shall be insurable as good and marketable by a reputable title
insurance company authorized to transact business in the Commonwealth of
Massachusetts pursuant to an ALTA (or successor organization's) standard form of
Owner's Policy of Title Insurance then in use in Massachusetts, subject to the
standard exceptions thereof. If Landlord is unable to convey title to the
Premises to Tenant at the closing in accordance with the requirements of this
Section 28.c, Tenant shall have the option (i) of taking such title as Landlord
is able to convey with abatement of the Purchase Price in the amount of any
fixed or ascertainable liens upon the Premises which are not otherwise the
obligation of Tenant to discharge under this Lease, or (ii) of terminating
Tenant's obligations under this Section 28 only and upon exercise of such
termination right, this Section 28 shall be null and void and neither party
shall have any obligations under this Section 28, although the remaining terms
and conditions of this Lease shall remain in full force and effect as if the
Purchase Option had not been exercised.
d. At closing and as part thereof, rents and other sums payable
by Tenant under this Lease shall be apportioned between the parties on a per
diem
24
basis as of the date of closing. All rents and other sums which have accrued
through the date of closing shall also be paid at closing. All rent and other
sums which have been prepaid for periods after closing shall also be so
apportioned and credited on the account of the Purchase Price. All real estate
transfer taxes payable in connection with the sale and purchase of the Premises
shall be paid by Landlord.
e. The sale and purchase of the Premises shall be made on an "as
is", "where is" basis and without any representations or warranties whatsoever
being made by Landlord, except as specifically set forth in this Section 28.
f. If at any time following the exercise by Tenant of the
Purchase Option and before closing thereunder any portion of the Premises is
destroyed or damaged as a result of fire or other casualty, the rights and
obligations of the parties under this Section 28 shall not be affected thereby;
provided, however, that if Tenant would otherwise have the right under this
Lease to terminate this Lease as a result thereof, Tenant shall also have the
right, upon exercise of its right to terminate this Lease, to terminate the
Purchase Option.
g. Landlord states to Tenant that the current zoning
classification of the Premises under the zoning code of the jurisdiction in
which the Premises are located is Industrial A, and that the use of the Premises
for the conduct of a metal fabrication business as conducted by Tenant prior to
the date hereof is permitted under such zoning classification, and that Landlord
has received no written notices from any governmental authority having
jurisdiction of any uncorrected violation of applicable housing, building,
safety or fire ordinances with respect to the Premises.
h. The parties represent and warrant to each other that neither
has dealt with any broker, finder or other intermediary in connection with the
sale contemplated by this Section 28, and each agrees to indemnify, defend and
hold the other harmless from all claims, demands, causes of action, liabilities
and expenses (including attorneys fees) arising from any claims for commissions
made by any broker, finder or other intermediary claiming through the
indemnifying party. The provisions of this subsection shall survive closing on
the purchase
25
and sale of the Premises.
i. Tenant shall have the right, without Landlord's consent, to
assign all or a portion of the Purchase Option to an Affiliate (or a combination
of Affiliates) or a Successor of Tenant. For purposes hereof, an "Affiliate" or
"Successor" of Tenant is an entity controlling, under common control with or
controlled by Tenant, including an entity resulting from a merger or
consolidation by Tenant.
j. The rights of first refusal granted to Tenant in this
Section 28 shall be effective during the initial term hereof as well as during
any five year Extension Option thereof and shall remain effective for a two year
period following the expiration or termination of this Lease for any reason
whatsoever.
29. QUIET ENJOYMENT.
Tenant shall peaceably and quietly hold and enjoy the Premises for the
term, without hindrance or molestation from Landlord, or anyone claiming by
through or under Landlord, under and subject to the terms and conditions of this
Lease.
30. MISCELLANEOUS.
(a) The headings preceding each section of this Lease are for
convenience of reference only and shall not affect the construction or meaning
of the provisions hereof.
(b) If any of the provisions of this Lease, or the application
thereof to any person or circumstance, shall be determined to be invalid or
unenforceable, the parties shall execute an amendment to this Lease
incorporating a lawful clause with similar economic consequences so that the
respective rights and obligations of the parties shall be maintained. Further,
the remainder of this Lease, or the application of any such provision to persons
or circumstances other than those to whom or for which such provision was
determined to be invalid or unenforceable, shall not be affected by such
amendment, and shall be valid and enforceable to the fullest extent permitted by
law.
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(c) No payment by Tenant or receipt by Landlord of a lesser amount
than the correct rent or additional rent due hereunder shall be deemed to be
other than a payment on account, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment be deemed to effect or
evidence an accord an satisfaction, and Landlord may accept such check for
payment without prejudice to Landlord's right to recover the balance or pursue
any other remedy in this Lease or at law provided.
(d) This Lease shall be governed in all respects by the Commonwealth
of Massachusetts.
(e) This Lease shall inure to and be binding on the parties hereto,
and their respective heirs, successors and assigns (but no rights shall inure to
the benefit of any assignee of Tenant, except a Successor or Affiliate, unless
Landlord has consented to the assignment, as required under Section 18).
(f) This Lease may be executed in any number of counterparts, each
of which shall be deemed to be an original as against any party whose signature
appears thereon, and all of which shall together constitute one and the same
instrument. This Lease shall become binding when one or more counterparts
hereof, individually or taken together, shall bear the signatures of all the
parties reflected herein as the signatories.
27
IN WITNESS WHEREOF, Landlord and Tenant have caused their duly
authorized representatives to execute this Lease the day and year first above
written.
LANDLORD:
JAD ASSOCIATES, LLC, a
Pennsylvania limited liability company
By: /S/ XXXXX X. XXXXXX
------------------------
Xxxxx X. Xxxxxx, Member
By: /S/ XXXXXXXXXX X. XXXXXX
------------------------
Xxxxxxxxxx X. Xxxxxx,
Member
TENANT:
X.X. XXXX CO., INC. d/b/a
WHALING CITY IRON, CO.
By: /S/ XXXXX X. XXXXXX
------------------------
Xxxxx X. Xxxxxx, Chairman
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SCHEDULE 1
Rent
Initial Term: For each year of the initial term, at the rate
of $45,000.00 per year.
Extension Period: For each year of any extension term, at an
annual rate equal to (i) $45,000.00, times
(ii) a fraction, the numerator of which is the
"Index" (hereinafter defined) for the calendar
month immediately preceding the commencement
of the extension term, and the denominator of
which in the Index for the calendar month
immediately preceding the Commencement Date of
the initial term. On or before the
commencement of any extension term, Landlord
shall compute and shall give Tenant written
notice of the annual rent therefor.
As used herein, the "Index" shall mean the Consumer Price Index published by the
United States Department of Labor Bureau of Labor Statistics, All Urban Consumer
(CPI-U), U.S. City Average, All Items (1982-1984 = 100), or such successor index
as most closely thereto reflects changes in the cost of living.
29
EXHIBIT "A"
-----------
LEGAL DESCRIPTION OF THE PREMISES
---------------------------------
30
