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EXHIBIT (10.4)
REAL ESTATE LEASE AGREEMENT
THIS REAL ESTATE LEASE AGREEMENT, dated the 25th day of September, 1998 by and
between XXXXXX X. XXXXX and XXXXX X. XXXXX t/d/b/a St. Clair Leasing Co., a
Pennsylvania partnership (together "Lessor") and INTERFORM CORPORATION, a
Pennsylvania Corporation t/d/b/a INTERFORM SOLUTIONS , a Subsidiary of Champion
Industries, Inc., ("Lessee").
WITNESSETH:
That in consideration of the rents hereinafter agreed to be paid by Lessee to
Lessor, and in consideration of the covenants of the respective parties hereto
to be performed at the time and in the manner hereinafter provided, Lessor does
hereby lease and demise unto Lessee, and Lessee does hereby hire and take from
Lessor, that certain lot, piece or parcel of land situated, lying and being in
the Township of South Fayette, Allegheny County, Pennsylvania, as set forth on
the drawing marked Exhibit "A" hereby attached and made a part hereof with two
one (1) story metal buildings containing approximately 103,000 square feet (the
Premises"). Lessee is herein granted ingress and egress to and from the premises
and the crosshatched area indicated on Exhibit A".
TO HAVE AND TO HOLD the Premises, together with the tenements, hereditaments,
appurtenances, improvements, buildings and assessments thereunto belonging or in
any
Exhibit (10.4)-p 1
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wise appertaining, subject to the terms and conditions herein stated, for a term
of sixty months commencing on the first day of October, 1998 and terminating on
the last day of September 2003 (the "Term").
AND IN CONSIDERATION OF THE LETTING AND HIRING OF SAID PREMISES, AS HEREINABOVE
PROVIDED, THE PARTIES HERETO HEREBY COVENANT AND AGREE AS FOLLOWS:
1. Lessee does hereby agree to pay to Lessor as rent for the said leased
premises the sum of TWO HUNDRED SIXTY-SIX THOUSAND TWO HUNDRED FORTY DOLLARS
($266,240.00) during each and every year, payable in equal monthly installments
of TWENTY-TWO THOUSAND ONE HUNDRED EIGHTY-SIX DOLLARS and 66/100 ($22,186.66) in
advance, without further demand, on the 1st day of every month during the Term
("the Rent").
It s understood and agreed that except as explicitly provided herein the monthly
Rent provided for herein shall be absolutely net to Lessor through the term of
this Lease, free of any and all Taxes, costs, expenses, liabilities, charges or
other deductions whatsoever with respect to the Premises and or the ownership,
leasing, operation, maintenance, repair, rebuilding, use or occupation thereof,
or with respect to any interest of Lessor therein, it being the intention of the
parties hereto that Lessee hereby assumes during the term of this Lease every
obligation relating to the Premises that the ownership thereof
Exhibit (10.4)-p 2
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would entail and which, but for this Lease, would be borne by Lessor. This Lease
is a net lease and, notwithstanding any law, all rentals and other amounts
payable under this Lease by Lessee shall be paid without offset, counterclaim,
abatement or defense, except as otherwise explicitly provided herein.
2. During the Term, Lessee agrees to pay, when due, all charges for
electricity, gas, heat, telephone, water, sewerage, or for setting and repairing
meters, or other utility services and costs related to the Premises or any part
thereof, which shall during the Term be levied, assessed or imposed or become
due and payable.
3. Lessee will pay when due and payable all Real Estate Taxes and
municipal assessments and payments on the entire Premises which shall during the
Term be levied, assessed, or imposed upon the Premises, or any structure erected
thereon.
4. Lessee shall also pay, directly to the authority charged with
collection therof, before any penalty, interest or cost may be impose: (a) all
taxes upon or measured by rents, personal property taxes, assessments, levies,
fees, and all other government levies and charges of every kinds whatsoever,
whether or not now customary or within the contemplation of the parties hereto
and regardless of whether the same shall be general or special, ordinary or
extraordinary, foreseen or unforeseen, which are, at any time prior to or during
the Term, imposed or levied upon or assessed against (i) the Premises, (ii) any
Rent or other sum payable hereunder, or (iii) this Lease or the leasehold estate
hereby
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created, or which arise in respect of the operation,
possession or use of the Premises; (b) all gross receipts, or similar taxes
imposed or levied upon, assessed against or measured in whole or in part by any
Rent or other sum payable hereunder; (c) all sales, value added, use and similar
taxes at any time levied, assessed or payable on account of the leasing or use
of the Premises by Lessee ("Taxes"). Notwithstanding anything to the contrary
contained in this Lease, Lessee shall not be required to pay any single business
or similar taxes imposed, levied or assessed against Lessor. If any
Tax may legally be paid in installments, Lessee may elect to pay such Tax in
installments. Lessee shall furnish Lessor proof of payment of all Taxes on or
before the due date thereof. Nothing contained in this Lease, however, shall
require Lessee to pay any income, profits or revenue tax or charge upon the rent
payable by Lessee under this Lease. At the expiration or earlier termination of
the Term: (a) Lessee shall pay to Lessor, as additional rent, an amount equal to
the portion of any Tax payment which is allocable to any period included within
the Term but which is not yet due and payable, and (b) Lessee shall be allowed a
credit equal to the portion of any Tax payment paid by Lessee which is
allocable' to any period not included within the Term, provided that no such
credit shall be made to Lessee if a default then exists. Subject to the
reimbursement of taxes described in Section 5, Lessee shall pay all real estate
taxes on Building No.3, which building is shown on "Exhibit A" attached hereto.
5. Lessor agrees to reimburse Lessee for the taxes actually paid by
Lessee
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associated with the Premises described on "Exhibit A" as Building No. 3 at an
amount equal to the square foot rate paid for the Premises and such Buildings
times the square footage of the third building. (Example: Total tax cost divided
by the total square footage of all structures equals the tax cost per square
foot times the square footage of Building No. 3 equals the reimbursement
factor.) Lessor agrees to pay Lessee within fourteen (14) days of proof of tax
payment or Lessee may deduct Lessor's portion from the subsequent lease payment.
6. Lessee covenants and agrees to maintain, at its sole cost and
expense, at all times during the Term, public liability insurance for the
Premises, including broad form property damage, blanket contractual and personal
injuries coverage in an amount not less than $1,000,000.00 per occurrence and
$3,000,000.00 in the aggregate for injury or death to persons, and not less that
$500,000.00 for property damage.
7. Lessee shall keep the Premises insured against the loss or damage by
fire, with extended coverage, and against loss from such other hazards as may be
required by Lessor, and in no event will property insurance be in an amount less
than the full replacement cost of all buildings or other improvements now or
hereafter erected on the Premises. The Lessee shall take out and maintain such
boiler insurance as may be reasonably required by the Lessor. Lessee shall make
Lessor an additional insured under Lessee's
Exhibit (10.4)-p 5
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comprehensive general liability insurance policies applicable to the Premises by
means of an additional insured endorsement, a copy of which shall be furnished
to Lessor, so that to the extent of said insurance coverage, Lessor is defended
from and insured against any and all claims, suits;, losses, liabilities, costs
and expenses, resulting from injury (including death) to the person or damage to
or loss of the property of anyone (including employees of Lessee) arising out of
or in connection with occupancy or use by Lessee, its employees, agents,
contractors or business guests of the Premises, any adjacent areas and any other
property of Lessor. Said additional insured endorsement shall provide that the
insurance afforded for Lessor is primary and any other valid and collectible
insurance available Lessor shall be excess. Lessee shall furnish Lessor with a
certificate or certificates of insurance covering said insurance so maintained
by Lessee, stipulating that such insurance shall not be canceled without at
least thirty (30) days' prior written notice to Lessor.
8. If the Premises or any portion thereof shall be damaged by fire or
any other casualty, such Premises or portion thereof shall, as soon as possible,
be repaired and/or rebuilt in good workmanlike manner, so that the restored
Premises are substantially similar to the construction of the Premises
immediately prior to such fire or other casualty, by and at the expense of the
Lessor. Until the repairs and/or rebuilding shall have been completed, the Rent
shall be proportionately abated according to the part of the demised premises
which shall be rendered untenantable by reason of fire. However, if the Premises
shall be substantially or completely destroyed by fire or any other
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casualty, then either party may, within thirty (30) days after the occurrence of
the damage, cancel and terminate this Lease by giving notice to the other party
and, if such notice shall be given, the term of this Lease shall expire on the
tenth day after such notice shall be given, with the same effect as if that day
were the date herein specified for the expiration of the Term, and Lessee shall
vacate the Premises and surrender the same to the lessor. If a dispute arises as
to the amount of rent due under this clause, the dispute shall be submitted to
arbitration. Lessor and Lessee shall both designate one arbitrator , and these
two arbitrators shall designate a third arbitrator. In the event that they shall
fail to agree on an arbitrator within ten days after their designation, the
third arbitrator shall be designated by the American Arbitration Association.
The decision of a majority of this board shall be final and binding on all
parties. Lessor shall, not be liable for any consequential damages in connection
with such fire or other casualty , including but not limited to damage,
compensation or reason of inconvenience or annoyance arising from the necessity
of repairing any portion of the building, the interruption in the use of the
Premises, or the termination of this Lease by reason of the destruction of the
Premises.
9. If the Premises or any necessary or substantial part thereof is taken
by eminent domain, this Lease shall terminate on the date of such taking and the
rent shall be apportioned as of that date. In any taking or condemnation
proceedings, Lessee shall have the right to be a party an to lodge a claim
against the condemning authority for any award it may be allowed by law,
including, without limitation, an award for its trade fixtures, business and
personal property and moving and relocation expenses; provided, however,
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that nothing herein shall entitle Lessee to any share in the award which Lessor
would be entitled to receive if the Premises had never been subject to this
Lease, except for Lessee's interest in its personal property, trade fixtures and
equipment and its interest in the products being stored on the Premises and its
leasehold interests in the Premises subject to reduction for the termination of
its liability for rent as stated above. Lessor shall promptly notify Lessee of
any actual or contemplated taking of which it has knowledge.
10. Except as provided in Article 7, Lessee agrees that it will during
the term of this Lease keep and maintain all buildings and improvements erected
upon the demised premises, both outside and inside, in good order and repair, at
Lessee's sole cost and expense, making all repairs and replacements, which are
necessary to so maintain said buildings and improvements , so that at all times
the said buildings and improvements shall be in good order, condition and
repair, reasonable wear and tear excepted. Lessee will provide for snow removal
from the sidewalks, parking areas, loading dock areas and roadways assigned
under this lease.
11. Lessee agrees that it will, during the Term, or any extension or
renewal thereof, at its own expense, observe and comply with all valid laws,
orders, regulations, rules, ordinances and requirements of the Federal, State,
County and other municipal governments, or any subdivision thereof, having
jurisdiction over the Premises and of the Board of Fire Underwriters or any
other body exercising similar functions. Lessee agrees
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to pay all costs, expenses, claims, fines, penalties and other losses that may
arise out of or be imposed because of the failure of Lessee to comply therewith.
Lessee may in good faith contest in its own name, or when necessary, in Lessor's
name, but at Lessee's expense (and Lessor agrees in the latter case to sign any
necessary or appropriate papers) the validity of any law, order, regulation,
rules, ordinance or other requirement, or the applicability thereof to the
Premises, and may postpone compliance therewith until after the end of such
contest.
12. Lessee agrees to comply with all present and future statutes, laws,
ordinances, enactments, rules, regulations, orders, decrees, directives,
mandates, standards, interpretations, or other similar requirements of any
federal, state or local government, court or public authority prohibiting,
regulating or otherwise relating to environmental pollution and environmental
control of any kind, including, but not limited to, air pollution, water
pollution, land pollution, groundwater pollution, noise pollution, solid waste
pollution, toxic substance control and pollution from the release of oil into
the environment ("Environmental Requirements"), including but not limited ,
Environmental Requirements under the Federal Water Pollution Control Act; the
Federal Clean Air Act; the Federal Resource Conservation & Recovery Act; the
Federal Noise Control Act; the Federal Safe Drinking Water Act; the Federal
Toxic Substances Control Act, the Comprehensive Environmental Response
Compensation Liability Act; including any amendments to the foregoing statutes,
and the state
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counterparts of such statutes and regulations, which are applicable to or arise
out of or are in connection with or relate to Lessee's use or occupancy of the
Premises. Lessee further agreed to establish or continue a program to assure
that all present and future applicable Environmental Requirements shall be
monitored and met in connection with its performance under this Lease. Lessee
will comply with said Environmental Requirements at its sole expense and will
hold harmless, indemnify and defend Lessor from and against any claims, suits,
damages, losses, costs and expenses, including reasonable attorneys' fees, made
against or sustained by Lessor as a result of Lessee's failure to comply with
any Environmental Requirements.
Lessor and Lessee are entering into this Lease on the understanding that
Lessee's planned use and occupancy of the Premises will not require a permit
under the Federal Resource Conservation and Recovery Act (RCRA) or state program
authorized under that Act. Lessee is prohibited from engaging in activities on
the Premises for which a permit under RCRA or the state counterpart is required.
To the extent required by law, Lessee agrees to comply with all applicable
federal, state, and local requirements with respect to communication of hazards
in the workplace to employees and the provision of information regarding
hazardous substances to the community. Such requirements include, but not
limited to, the Hazard Communication Standard adopted pursuant to the Federal
Occupational Safety and Health Act and all applicable requirements of the
Federal Emergency Planning and Community Right-to Know Act of 1986 (Title III of
Superfund Amendments and Reauthorization Act of 1986), and any regulations
adopted thereunder.
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If, due to statutory or regulatory changes, some or all of the activities
conducted by Lessee on the Premises must be permitted under RCRA, or state
counterpart, Lessee shall notify Lessor, in writing, of the change and shall
indicate whether it desires to seek a permit to continue conducting the affected
activities. Lessee shall not apply for a permit prior to obtaining Lessor's
written consent, which consent Lessor shall have the absolute right to withhold
for any reason or no reason. Lessor shall respond in writing to indicate whether
or not it will consent to Lessee's filing an application for such a permit. If
Lessor withholds its consent, Lessee shall cease using the Premises for those
activities requiring a RCRA permit.
Lessee understands that as between Lessor and Lessee, Lessee shall be solely
liable, regardless of fault, for any and all damages, including death, personal
injury, property damage or damage to natural resources, resulting from any
release into the environment of any of the substances it manages on the Premises
during the term of this Lease and any extensions thereof. Accordingly, in
addition to the indemnity obligations of Lessee set forth in this Lease,
including Article 13 below, Lessee will indemnify, defend and hold harmless
Lessor from and against any claims, suits, damages, losses, costs and expenses,
including reasonable attorneys' fees made against or sustained by Lessor as a
result of any such release into the environment.
13. Lessee will indemnify, defend and hold harmless Lessor from and
against any and all claims, suits, losses, liabilities, costs and expenses,
including reasonable attorneys' fees, resulting from injury (including death) to
the person or damage to or loss of the property of anyone (including Lessor and
Lessee and Employees of Lessor and Lessee)
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arising out of or in connection with occupancy or use by Lessee, its employees,
agents, contractors or business guests of the Premises, any adjacent areas and
any other property of Lessor, except to the extent that such claims, suits,
damages, losses and liabilities result from the gross negligence or willful
misconduct of Lessor, its employees or agents.
14. In the event that Lessee shall be in default in the performance of
any of the terms, covenants or provisions herein contained, Lessor may
immediately or at any times thereafter perform the same for the account of
Lessee and any amount paid or expense or liability incurred by Lessor in the
performance of the same shall be deemed to be additional rent payable by Lessee
for the Premises and the same may, at the option of Lessor, be added to any Rent
then due or thereafter falling due hereunder.
15. (a) Lessee may at any time or times during the Term, at its own cost
and expense, make any alterations, rebuilding replacement changes, additions and
improvements to the Premises and to the buildings thereon provided that:
(i) the same shall be performed in a workmanlike manner and
shall not weaken or impair the structural strength nor
lessen the value of the buildings thereon or any other
portion of the Premises as they are at the commencement
of the term hereof;
(ii) before the commencement of any such work, Lessee shall
certify to Lessor in writing, the nature of the
alteration to be made, as well as the cost thereof as
estimated by Lessee;
(iii) before the commencement of such work, said plans and/or
specifications shall be filed with or approved by all municipal
or other
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governmental departments or authorities having jurisdiction
thereof, and all work shall be done subject to and in accordance
with the requirements of law and local regulations;
(iv) the same shall be made according to plans and
specifications which shall have first been approved in writing
by Lessor; and
(v) Lessee shall pay the increased premium, if any changed by
the insurance companies carrying insurance policies on said
buildings to cover additional risk during the course of such
work.
(b) All such alterations, rebuilding, replacements, changes, additions
and improvements made by Lessee shall be and become part of the realty,
and upon the expiration, forfeiture or termination of this Lease or any
extension or renewal thereof, for any reason whatsoever, shall become
the sole and absolute property of Lessor, unless Lessor and Lessee
otherwise agree in writing at the time that such alteration, rebuilding
replacement, change addition or improvement is made.
(c) Lessee shall not remove, damage or destroy the buildings,
improvements, equipment, fixtures or appurtenances and /or any part of
any
Exhibit (10.4)-p 13
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of them in or upon the demised premises at the commencement of the term
hereof or which hereafter by put in or upon the Premises without the
consent of the Lessor.
16. Lessee may, with the prior approval of the Lessor first had and
obtained, assign this Lease or sublet all or part of the Premises for a term or
terms which will expire not later than the date of expiration of the Term or
other termination of this Lease, provided however, that such sublease or
assignment shall be subject to the covenants and conditions contained in this
Lease and the following further conditions:
(a) Neither the assignment or sublease nor acceptance of rent by
Lessor from any assignee or sublessee shall relieve, release or in any manner
affect the liability of Lessee hereunder;
(b) Any assignee or sublessee shall assume and agree to perform
all of the terms, conditions and agreements of this Lease on the part of the
Lessee to be performed, and shall be and become jointly and severally liable
with Lessee for the performance thereof, including payment of Rent and any
additional rent hereunder.
(c) A duplicate original of the sublease and /or the instrument
of assignment and assumption, duly executed and acknowledged by Lessor promptly
after the making of the assignment of sublease;
(d) Any assignment or sublease under this Article shall be to a
financially responsible corporation, firm or partnership as determined by Lessor
in its sole discretion; and
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(e) Any assignment of, or attempt to assign this Lease contrary
to the provisions herein, shall give Lessor, at its option, the right to
terminate this Lease, and it shall be entitled to all rights and remedies of
repossession under the laws of Pennsylvania, free from any rights or claims of
the Lessee.
(f) Lessor's consent to such sublease or assignment may not be
unreasonably withheld or denied. Lessor reserves the right to evaluate the
financial strength of the subtenant..
17. This Lease and all its terms, covenants and conditions are, and each
of them is, subject and subordinate to any and all mortgages and to mortgage
bonds and judgments, entered thereon, now or hereafter placed upon the Premises
and /or upon the land, and /or buildings erected thereon to the same effect as
if any such mortgage and /or accompanying bond and judgment thereon had been
fully executed and recorded before the execution of said Lease. It being the
intent of this paragraph that any such mortgage, whether a first or second
mortgage, placed upon the aforesaid dernised premises, and /or upon the land,
and/or buildings erected thereon, shall be valid lien upon both and legal and
equitable title to the aforesaid premises, and or buildings, as if the said
Lease were not in existence.
18. If, during the term of this Lease, Lessee shall neglect or refuse to
pay any installment of Rent due for the period of five (5) days after notice of
such default sent to Lessee by certified mail; or should an execution issue
against Lessee and a levy be made against the personal property of Lessee and
the same be not bonded, stayed, satisfied, or remedied within (10) days of the
said execution and levy, or before the said property is sold, whichever is
sooner, either at public or private sale, pursuant to said execution; or should
Lessee file in any court pursuant to
Exhibit (10.4)-p 15
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any statue either of the United States or any state, a petition in bankruptcy or
insolvency or for reorganization or for the appointment of a receiver or trustee
of all or a portion of Lessee's property; or should such a petition be so filed
against Lessee and not be dismissed within a period of ninety (90) days after
the date of filing thereof; or should Lessee make an assignment for the benefit
of creditors, or a xxxx in equity or other proceeding for the appointment of a
receiver for Lessee is granted; or if proceeding for reorganization or for
composition with creditors under any state or federal law be instituted by or
against Lessee, and if instituted against Lessee shall be connected to by it or
remain undismissed for a period of ninety (90) days after the date of filing
thereof; then, and in each case, at the option of Lessor, exercisable by notice
to Lessee, the rent for the expired balance of the Term shall at once become due
and collectible, by distress or otherwise, and all personal property owned by
Lessee removed from the Premises shall, for six months after such removal, be
liable to distress and may be distrained and sold or Lessor may in each of said
cases, without notice or demand, enter into and upon the Premises or any part
thereof in the name of the whole, and repossess the same as of their former
estate, and expel Lessee and those claiming under them and remove their effects,
forcibly, if necessary, without being taken or deemed to be guilty of any manner
of trespass, and thereupon this Lease shall absolutely determine without
prejudice to any remedies which may otherwise be used by Lessor for arrears of
Rent or breach of Lessee's covenants herein contained.
It is understood and agreed, however, that if Lessee shall be required
to pay the entire Rent for any unexpired balance of the Term, or any renewal
thereof, and if Lessor shall dispossess Lessee and take possession of the
Premises, as set forth in Article 19 of this Lease,
Exhibit (10.4)-p 16
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that, in such an event, if Lessor shall relent the Premises, or any part of the
same, for the unexpired balance of the Term for which it has already received
Rent payment in full from Lessee, the Rent received by Lessor from such releting
(less any costs expended in securing said rentals) shall be turned over to
Lessee.
19. If Lessee shall fail to pay Rent due hereunder for a period of five
(5) days after notice of default sent to Lessee by certified mail, or if Lessee
fails to cure within thirty (30) days after written notice shall have been given
to Lessee by Lessor, except as otherwise set forth in Article 18 hereof, then
Lessee shall, at the option of Lessor exerciseable by notice to Lessee, be
nontenant, subject to dispossession by Lessor without further notice or process
of law, with release of errors and damages, and Lessor may re-enter the Premises
and dispossess Lessee without thereby becoming a trespasser.
20. Lessee hereby accepts notice to quit, remove from and surrender up
possession of Premises to Lessor, its successors or assigns, at the end of the
Term, whenever it may be determined, whether by forfeiture or otherwise, without
any further notice to that effect, all further notices being hereby waived. This
waiver of notice to quit is to apply either at the end of the original Term of
the Lease, or any renewal thereof, or at the end of any subsequent year or month
in case Lessee holds over, and at the time the Term is ended by forfeiture.
21. At the end of the Term, whether the same shall be determined by an
amicable action of ejectment may be entered in the Court of Common Pleas of
Allegheny County (after fifteen (15) days prior written notice given Lessee), in
which Lessor, its successors or assigns, shall be plaintiff, and Lessee, its
successors or assigns and all who come into
Exhibit (10.4)-p 17
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possession during the Term or forfeiture or expiration of the Term, as in the
Lease provided, it is agreed that continuance of this Lease, or under Lessee,
shall be defendants, and that judgment may be entered thereupon in favor of the
plaintiff, without leave of court, for the Premises, to have the same force and
effect as if a summons in ejectment had been regularly issued, legally served
and returned, and that a writ of possession for all costs may be issued
forthwith, waiving all errors and defects whatsoever in entering said judgment,
also waiving right of appeal, writ of error, or stay upon any writs of habere
facias possession which may issue upon these same. Lessee hereby empowers any
attorney to appear
for it in said amicable action in ejectment for the demised premises in any
court having jurisdiction.
22. LESSEE, TO THE EXTENT PERMITTED BY LAW UPON RECEIPT OF SEVEN (7) DAYS PRIOR
NOTICE FROM LESSOR OF ITS INTENT TO ENTER JUDGMENT OF CONFESSION, HEREBY
IRREVOCABLY AND UNCONDITIONALLY AUTHORIZES THE PROTHONOTARY, CLERK OF COURT, OR
ANY ATTORNEY OF ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA, OR ANY
OTHER JURISDICTION, AS ATTORNEY FOR LESSEE TO APPEAR FOR LESSEE IN SUCH COURT
AND, WITH OR WITHOUT ONE OR MORE COMPLAINTS FILED, CONFESS JUDGMENT OR JUDGMENTS
AGAINST LESSEE IN FAVOR OF LESSOR, AND ITS SUCCESSORS AND ASSIGNS, AT ANY TIME
FOLLOWING THE OCCURRENCE OF AN EVENT OF DEFAULT HEREUNDER, TOGETHER WITH COSTS
OF SUIT AND ATTORNEYS COMMISSION OF TEN PERCENT (10%) OF THE UNPAID AMOUNT
Exhibit (10.4)-p 18
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HEREUNDER, WITH RELEASE OF ALL ERRORS AND WAIVER OF ANY RIGHT TO A STAY OF
EXECUTION, FOR WHICH THIS LEASE OR VERIFIED COPY HEREOF SHALL BE SUFFICIENT
WARRANT, AND INQUISITION AND EXTENSION UPON ANY LEVY ON REAL ESTATE IS HEREBY
WAIVED AND CONDEMNATION AGREED TO. THE AUTHORITY TO ENTER JUDGMENT SHALL NOT BE
EXHAUSTED BY ONE EXCUSE HEREOF, BUT TO THE EXTENT PERMITTED BY LAW, SHALL
CONTINUE FROM TIME TO TIME UNTIL FULL PAYMENT OF ALL AMOUNTS HEREUNDER. THE
FOREGOING RIGHT AND REMEDY IS IN ADDITION TO AND NOT IN LIEU OF ANY OTHER RIGHT
OR REMEDY IS IN ADDITION TO LESSOR UNDER THIS LEASE OR OTHERWISE. LESSEE FURTHER
AGREES TO THE IMMEDIATE ISSUING OF A WRIT OF EXECUTION FOR THE AMOUNT OF SUCH
JUDGMENT AND COSTS, WITHOUT LEAVE OF COURT.
LESSEE EXPRESSLY ACKNOWLEDGES THAT THIS IS A COMMERCIAL TRANSACTION, THAT IT
UNDERSTANDS AND VOLUNTARILY AGREES TO THIS PROVISION FOR CONFESSION OF JUDGMENT,
AND THAT LESSEE IS WAIVING IMPORTANT LEGAL RIGHTS INCLUDING ANY RIGHT TO NOTICE
OR A HEARING WHICH MIGHT OTHERWISE BE REQUIRED BEFORE ENTRY OF JUDGMENT
HEREUNDER.
LESSEE ACKNOWLEDGES THAT IT HAS HAD ASSISTANCE OF COUNSEL IN THE REVIEW AND
EXECUTION OF THIS CONFESSION OF JUDGMENT AND THAT ITS MEANING AND EFFECT HAS
BEEN FULLY EXPLAINED TO THEM BY SUCH COUNSEL.
Exhibit (10.4)-p 19
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INITIALS
23. Lessor agrees that any and all equipment and fixtures which may be
placed or installed in the Premises by Lessee and which shall be designed for,
or used in, the conduct of Lessee's business in the Premises, shall at all times
-be and remain the property of the Lessee. Lessee hereby undertakes and agrees
to remove all such equipment and fixtures prior to the expiration or other
termination of this Lease or any renewal thereof, and, at its sole expense, to
repair any and all damage to the Premises which shall have been occasioned
either by the installation or removal thereof. Any and all such equipment and
fixtures which shall remain in the Premises more than sixty (60) days after
termination of this Lease, shall be deemed abandoned by Lessee and shall become
the sole property of Lessor. Lessee agrees to pay a pro-rated daily storage fee
for any and all equipment remaining after the termination date of this Lease.
24. In case there shall at any time be filed against the Premises any
mechanic's or materialman's lien (with the exception of any lien filed for work
done or for materials supplied at the request of the Lessor) (in which case
Lessor shall promptly cause such lien to be discharged), Lessee will, within ten
(10) days after it shall have been received notice thereof, cause said lien to
be discharged either by paying the amount claimed or by bonding or otherwise;
provided however, that such discharge or bonding of record must be sufficient
(a) to permit Lessor to obtain title insurance with no exception for such lien;
and (b) to prevent the holder of the lien from causing a sale, foreclosure or
other title divestiture with respect to the Premises or any portion thereof. If
Lessee shall fail so to discharge or bond any such lien within such thirty
Exhibit (10.4)-p 20
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(30) day period, then in addition to any other right or remedy of Lessor, Lessor
may, but shall not be obligated to, procure the discharge of the same either by
paying the amount claimed to be due by pay the amount of the judgment, if any,
in favor of the lienor, with interest, costs and allowances. Any amount paid or
deposited by Lessor, including reasonable counsel fees, in defending such action
or in procuring the discharge of such lien, with all necessary disbursements in
connection therewith, together with the late charge from the date of payment or
deposit by Lessor, shall be payable by Lessee to Lessor as additional rent
within five (5) days of demand therefor.
25. At the expiration or other termination of the term hereof, Lessee
shall vacate and surrender to Lessor full and actual possession of the Premises
in a good state of repair, damage by the elements, and ordinary wear and tear
excepted.
26. Lessor hereby covenants that Lessee, upon payment of the Rent as
herein reserved and performing all the covenants and agreements herein contained
on the part of Lessee, shall and may peaceably and quietly have, hold and enjoy
the Premises hereby demised.
27. Subject to the security regulations of any government authority,
Lessee agrees that it will permit Lessor to have free access to the Premises, on
reasonable notice to Lessee for the purpose of inspecting the same or making
repairs that Lessee may neglect or refuse to make in accordance with the
provisions of this Lease, and also for the purpose of showing the Premises to
deposit or bonding, or Lessor shall be entitled, if it so elects, to compel the
prosecution of an action for the foreclosure of such lien by the lienor and to
persons considering purchase of the property or concerned with the placement of
a mortgage thereon.
Exhibit (10.4)-p 21
22
28. In any case where, pursuant to the terms of this Lease, one party's
approval is required by the other, such approval shall not be unreasonably
withheld.
29. It is agreed by and between the parties that the premises leased
shall be used only to manufacture, store, market and sell printed materials and
other related products.
30. All notices required or desired to be given hereunder shall be in
writing and shall for the purpose of the Lease be deemed to have been duly
given.
(a) To Lessor if a copy thereof by certified mail, postage prepaid,
addressed to Lessor at 0000 Xx. Xxxxxxx Xxxxx, Xxxxxxxxxxx, XX 00000 or to such
other address as Lessor may from time to time designate in writing to Lessee.
(b) To Lessee if a copy thereof be mailed by certified mail, postage
prepaid, addressed to Box A, Mayview & Xxxxx Roads, Bridgeville, PA 15017,
Attn.: President.
All notices served by prepaid registered mail as aforesaid shall be
effective on the date they are so mailed.
31. The covenants, agreements and conditions contained in this Lease
shall run with the land and the Premises hereby leased and shall be binding upon
and insure to the benefit of the parties hereto and their respective successors
and assigns.
32. This Lease contains the entire agreement of the parties hereto with
respect to the letting and hiring of the Premises and such Lease may not be
amended, modified, released, surrendered or discharged, in whole or in part,
except by an instrument in writing signed by both of the parties hereto, their
successors or assigns.
33. Lessee may renew this Lease for an additional term of five (5)
years, at an annual
Exhibit (10.4)-p 22
23
rental of Two hundred seventy-six thousand eight hundred eighty-nine and 60/100
dollars ($276,889.60) payable in advance in equal consecutive monthly
installments of TWENTY-THREE THOUSAND SEVENTY-FOUR AND 12/100 DOLLARS
($23,074.12) and an additional term of five (5) years thereafter at an annual
rental of TWO HUNDRED EIGHTYSEVEN THOUSAND NINE HUNDRED SIXTY-FIVE AND 20/ 100
DOLLARS ($287,965.20) payable in advance in equal monthly installments of
TWENTYTHREE THOUSAND NINE HUNDRED NINETY-SEVEN AND 10/100 DOLLARS ($23,997.10)
beginning on the first day of the month of such renewal term(s) and subject to
all the terms, covenants and conditions hereof provided that Lessee, in writing,
notifies Lessor of its intention to renew not later than one hundred eighty
(180) days prior to the termination date of the initial five year term, and
further provided that Lessee is not in default of any of the terms, covenants
and conditions of this Lease.
34. This Lease sets forth the entire agreement and understanding between
the parties as to the subject matter of this Lease and any and all prior or
contemporaneous proposals, negotiations, agreements, commitments and
representations, oral or written, are merged herein. This Lease may not be
modified or amended except by means of a writing duly executed by the parties
subsequent to the date hereof which states that it is intended to amend this
Lease.
35. Each provision hereof shall be separate and independent and if any
provision hereof or the application thereof to any person or circumstances shall
to any extent be invalid or unenforceable, the remaining provisions hereof, or
the application of such provision to persons or circumstances other than those
as to which it is invalid or unenforceable, as the case may be,
Exhibit (10.4)-p 23
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shall not be affected thereby, and each provision hereof shall be valid and
shall be enforced to the extent permitted by law. All provisions contained in
this Lease shall be binding upon, inure to the benefit of and be enforceable by,
the respective successors and assigns of Lessor and Lessee to the same extent as
if each such successor and assign were named as a party hereto. No waiver of any
provision hereof shall be deemed waiver of any other provision hereof or of any
subsequent breach of the same or any other provision.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound by
this Agreement, and Lessor has executed this Agreement by his Agent, thereunto
duly authorized, and Lessee has executed this Agreement on the day and year
above written.
Witness: ST. CLAIR LEASING CO.
[SIG] By /s/ XXXXXX X. XXXXX
-------------------------- --------------------------
Xxxxxx X. Xxxxx, Partner
By /s/ XXXXX X. XXXXX
--------------------------
XXXXX X. XXXXX, PARTNER
Attest: INTERFORM CORPORATION
By [SIG] By [SIG]
------------------------------ ------------------------------
Title: Accounting Supervisor Xxx Xxxxxx, President
--------------------------
Exhibit (10.4)-p 24
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EXHIBIT A
[SITE PLAN]
Exhibit (10.4)-p 25
