SUBLEASE AGREEMENT
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THIS SUBLEASE AGREEMENT, dated as of July 1, 1997 is made by and
between XXXX X. XXXXXXX, an adult individual, as sublessor ("Xxxxxxx") and X. X.
XXXXXXX MACHINE PRODUCTS, INC., an Arizona corporation, as sublessee
("Xxxxxxx").
W I T N E S S E T H:
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WHEREAS, by Lease Agreement dated as of July 12, 1994 (the "Lease
Agreement"), by and between PRH Properties, a Pennsylvania general partnership,
as landlord (the "Partnership"), and X.X. Xxxxxxx Machine Products Corporation,
a Delaware corporation, as tenant (the "Company"), the Company leased from the
Partnership that certain real property containing approximately 2.35 acres,
together with all improvements located thereon and appurtenances thereunto
belonging, located on Commerce Drive, South Middleton Township, Cumberland
County, Pennsylvania (the "Premises"); and
WHEREAS, Paragraph 21 of the Lease Agreement provides that the Company
shall not have the right to assign or sublet the Premises without the written
consent of the Partnership, which consent shall not be unreasonably withheld;
and
WHEREAS, pursuant to a certain Assignment and Assumption Agreement
dated as of July 1, 1997 (the "Assignment Agreement"), the Company assigned to
Xxxxxxx, and Xxxxxxx accepted and assumed from the Company, all of the Company's
rights, obligations, title and interest in, to and under the Lease Agreement;
and
WHEREAS, Xxxxxxx desires to sublease the Premises to Xxxxxxx, and
Xxxxxxx desires to sublease the Premises from Xxxxxxx; and
WHEREAS, the consent of the Partnership to the Assignment Agreement has
been obtained by the Company; and
WHEREAS, the consent of the Partnership to this Sublease Agreement has
been obtained by Xxxxxxx.
NOW, THEREFORE, in consideration of the premises, the mutual terms,
covenants and conditions herein contained, and the rent reserved to be paid by
Xxxxxxx to Xxxxxxx, the parties hereto, intending to be legally bound, do hereby
agree and covenant as follows:
1. Sublease of the Premises. Xxxxxxx hereby subleases to Xxxxxxx, and
Xxxxxxx hereby subleases from Xxxxxxx, the Premises.
2. Term. This Sublease Agreement shall be for an initial term of two
(2) years beginning July 1, 1997 (the "Commencement Date"), and ending June 30,
1999, unless sooner terminated in accordance with the terms of this Sublease
Agreement. Xxxxxxx shall have the right and option to renew the term for two (2)
successive, additional periods of one (1) year
each; provided, however, that Xxxxxxx shall have no right or option to renew the
term of this Sublease if an Event of Default (as defined herein) has occurred
under this Sublease upon the date of giving of the notice to renew or at any
time thereafter through and including the expiration date of the then-existing
term of this Sublease. Xxxxxxx shall exercise its right to renew the term only
by providing Xxxxxxx with written notice thereof at least ninety days (90) days
prior to the expiration of the then-existing term. The maximum term of this
Sublease and all renewal terms is four (4) years from the Commencement Date.
3. Rent.
(a) Commencing on the Commencement Date, Xxxxxxx shall pay to
Xxxxxxx during the term of this Sublease Agreement, as annual minimum
rental, the sum of One Hundred Twenty-Six Thousand Nine Hundred Dollars
($126,900), payable in equal monthly installments of Ten Thousand Five
Hundred Seventy-Five Dollars ($10,575).
(b) At the expiration of every anniversary date following the
Commencement Date during the term of this Sublease (each a "Sublease
Year"), the minimum rent shall be adjusted by the index known as the
U.S. City Average Consumer Price Index for Urban Wage Earners and
Clerical Workers (revised series; 1982-84=100) issued from time to time
by the Federal Bureau of Labor Statistics, or any successor agency that
shall issue the index, or any other measure hereafter employed by the
Federal Bureau of Labor Statistics or any successor agency in lieu of
such index (the "CPI"). The CPI adjustment to the minimum rent shall be
exactly equal to the change in the cost of living as determined by the
CPI; provided, however, that in no event shall the CPI adjustment to
the minimum rent exceed five percent (5%) for any Sublease Year. To
compute such CPI adjustment, the prevailing CPI will be used. Each such
CPI adjustment shall be accomplished by multiplying the minimum rent
established for the Sublease Year terminating just prior to each date
of adjustment aforesaid by a fraction, the numerator of which shall be
the most recently published CPI prior to the current date of adjustment
in question, and the denominator of which shall be the CPI published
closest to, and used as the numerator in calculations under this
Subparagraph 3(b) for, the date of adjustment occurring just prior to
the current date of adjustment (but in no event shall the minimum rent
be reduced as a result of such adjustment below the minimum rent
payable immediately prior thereto), and the increased minimum rent
resulting from the CPI adjustment to minimum rent thereby established
shall continue in effect as a minimum rent until again adjusted as
herein provided.
(c) All rent shall be payable in advance, punctually and
without demand, deduction or set off, payable on the first day of each
month during the term of this Sublease at such place as Xxxxxxx may
designate in writing. If Xxxxxxx fails to make any rental or other
payment within ten (10) days of the date it is due hereunder, a late
charge equal to five percent (5%) of the amount of the payment due
shall be assessed and shall be immediately due and collectible as
additional rent hereunder.
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4. Utilities, Taxes, Insurance. Xxxxxxx shall pay for all utility
services, including without limitation intended, electricity, water, sewer, and
telephone services, consumed by Xxxxxxx on the Premises. In addition, Xxxxxxx
shall immediately, upon demand by Xxxxxxx, reimburse Xxxxxxx for any and all
payments required to be made by Xxxxxxx under the Lease Agreement (other than
late fees or penalties), including, without limitation intended, payments for
taxes or insurance for the Premises. Xxxxxxx agrees, subject to reimbursement as
provided above, to maintain all insurance required under the Lease Agreement
during the term of this Sublease Agreement.
5. Compliance with Terms and Conditions of the Lease Agreement. Except
as otherwise provided in this Sublease Agreement, the parties hereto shall be
subject to all of the terms and conditions of the Lease Agreement, and Xxxxxxx
agrees to comply with each and every provision of the Lease Agreement and to
perform all the covenants applicable to Xxxxxxx contained therein, including,
without limitation intended, the maintenance obligations set forth in Paragraphs
10 and 11 of the Lease Agreement. Xxxxxxx acknowledges receipt of a copy of the
Lease Agreement, which is attached hereto as Exhibit "A" and made a part hereof.
6. Compliance with Law, Condition of the Premises. Xxxxxxx shall comply
with all laws, ordinances and regulations concerning the Premises (and any
fixtures, machinery or equipment therein) and Xxxxxxx'x use of the Premises.
Xxxxxxx has examined and knows the condition of the Premises and equipment, and
acknowledges that no representations as to the condition and repair thereof have
been made by Xxxxxxx or its agents prior to or at the execution of this Sublease
Agreement that are not herein expressed, and accepts the Premises and equipment
in an "as is" condition without warranty as to suitability for any particular
use.
7. Default by Xxxxxxx.
(a) If Xxxxxxx shall default in making any payment of rent or
other sums required to be paid by Xxxxxxx in accordance with the terms of this
Sublease, or shall default in the observance or performance of any other
provision of this Sublease, and such default shall continue uncured for a period
of ten (10) days with respect to a monetary default or thirty (30) days with
respect to a non-monetary default, an Event of Default shall have occurred;
provided however, that if the nature of Xxxxxxx'x default is such that it is not
capable of being cured within such thirty day period, the Event of Default shall
not be deemed to have occurred if Xxxxxxx commences such cure within a thirty
day period and thereafter diligently prosecutes such cure to completion, as
determined by Xxxxxxx in Xxxxxxx'x sole and reasonable discretion.
(b) If an Event of Default has occurred, Xxxxxxx may declare
this Sublease Agreement and Xxxxxxx'x right to possession of the Premises ended,
whereupon Xxxxxxx shall have all such remedies as the Partnership has upon an
Event of Default under the Lease Agreement, together with any other rights or
remedies available at law or equity.
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8. Default by Xxxxxxx.
(a) In the event Xxxxxxx shall default in keeping, observing
or performing any of the terms, provisions, covenants and conditions
contained in the Lease Agreement, and such default is not cured (or
proper corrective measures to cure such default commenced) by Xxxxxxx
within the period specified in the Lease Agreement for the curing of
such defaults, Xxxxxxx shall have the right, but not the obligation, to
remedy such default after giving written notice thereof to Xxxxxxx.
Xxxxxxx agrees to promptly send to Xxxxxxx a copy of any notice of
default received from the Partnership.
(b) In the event Xxxxxxx shall default in keeping, observing
or performing any of the terms, provisions, covenants and conditions
contained in this Sublease Agreement, and such default is not cured (or
proper corrective measures to cure such default commenced) by Xxxxxxx
within ten (10) days of such default, Xxxxxxx, at any time thereafter
upon ten (10) days' written notice to Xxxxxxx, may declare this
Sublease Agreement ended, whereupon Xxxxxxx shall have the remedies
provided at law or in equity.
9. Casualty. In the event of a casualty which would give Xxxxxxx the
right to terminate the Lease Agreement, as determined by Xxxxxxx in its sole
discretion, either Xxxxxxx or Xxxxxxx may terminate this Sublease Agreement upon
thirty (30) days' written notice to the other party.
10. Surrender of the Premises, Holding Over, Notice to Quit.
(a) Upon the expiration or earlier termination of this
Sublease for any reason, Xxxxxxx shall surrender the Premises to
Xxxxxxx in as good condition as existed on the Commencement Date,
ordinary wear and tear excepted.
(b) If Xxxxxxx, with Xxxxxxx'x consent, remains in possession
of the Premises after expiration or termination of the term, or after
the date in any notice given by Xxxxxxx to Xxxxxxx terminating this
Sublease, such possession by Xxxxxxx shall be deemed to be a
month-to-month tenancy terminable on thirty (30) days' notice given at
any time by either party. All provisions of this Sublease except those
pertaining to term, shall apply to the month-to-month tenancy.
(c) Time is of the essence of each provision of this Sublease.
Xxxxxxx hereby waives the Notice to Quit requirements of the
Pennsylvania Landlord and Tenant Act of 1951, as amended, 68 P.S.
ss.250.101 et seq., or any other applicable law, and agrees to
surrender the Premises without the need for notice at the expiration of
the term, including any renewal or extension thereof, or upon sooner
termination of this Sublease.
11. Assignment and Subletting. Xxxxxxx shall not assign or sublet the
Premises or any part thereof without the written consent of Xxxxxxx, which
consent may be withheld in Xxxxxxx'x sole discretion.
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12. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given when delivered by hand or by certified or
registered mail, return receipt requested, first-class postage prepaid, properly
addressed to the party to whom such notice is directed, at the address
hereinafter specified, or at such other address as the party receiving notice
designates to the other party in writing and by complying with the terms of this
paragraph.
If to Xxxxxxx:
Xxxx X. Xxxxxxx
0 Xxxx Xxxxx
Xxxxxxxxx, XX 00000
with a copy to:
XxXxxx, Xxxxxxx & Xxxxxx
000 Xxxx Xxxxxx
Post Office Box 1166
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Att'n: W. Xxxxxx Xxxxxxxxx, Esquire
If to Xxxxxxx:
Amtech Systems, Inc.
000 Xxxxx Xxxxx Xxxxx
Xxxxx, XX 00000
Att'n: X.X. Xxxxx, President
with a copy to:
Squire, Xxxxxxx & Xxxxxxx
00 X. Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Att'n: Xxxxxxxxxxx X. Xxxxxxx, Esquire
13. Toxic Materials.
(a) As used in this Sublease,
(i) The term "Hazardous Material[s]" means any oil,
flammable items, explosives, radioactive materials, hazardous
or toxic substances, material or waste or related materials
including, without limitation, any substances that pose a
hazard to the Premises or to persons on or about the Premises
and any substances defined as or included in the definition of
"hazardous substance," "hazardous waste," "hazardous
material," "toxic substance," "extremely hazardous waste,"
"restricted hazardous waste" or words of similar import, now
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or subsequently regulated in any way under applicable federal,
state or local laws or regulations, including without
limitation, petroleum-based products, paints, solvents, lead,
cyanide, DDT, printing inks, acids, pesticides, ammonia
compounds and other chemical products, asbestos, PCB's, urea
formaldehyde foam insulation, transformers or other equipment
containing dielectric fluid, levels of polychlorinated
biphenyls, or radon gas, and similar compounds, and including
any different products and materials which are subsequently
found have adverse effects on the environment or the health
and safety of persons.
(ii) The term "Environmental Law[s]" means any one or
all of the following: the Comprehensive Environmental
Response, Compensation and Liability Act, as amended by the
Superfund Amendments and Reauthorization Act of 1986 (42
U.S.C. xx.xx. 9601 et seq.); the Resource Conservation and
Recovery Act as amended (42 U.S.C. xx.xx. 300f et seq); the
Clean Water Act as amended (33 U.S.C. xx.xx. 1251 et seq.);
the Clean Air Act as amended (42 U.S.C. xx.xx. 7401 et seq.)
the Toxic Substance Control Act as amended (15 U.S.C. xx.xx.
136 et seq.) the Solid Waste Disposal Act as Amended (42
U.S.C. xx.xx. 3251 et seq.) the Hazardous Materials
Transportation Act (49 U.S.C. xx.xx. 1801 et seq.); the
regulations promulgated under any of the foregoing: and all
other laws, regulations, ordinances, standards, policies, and
guidelines now in effect or hereinafter enacted by any
governmental entity (whether local, state or federal) having
jurisdiction or regulatory authority over the Premises or over
activities conducted therein and which deal with the
regulation or protection of human health, industrial hygiene
or the environment, including the soil, subsurface soil,
ambient air, groundwater, surface water, and land use.
(iii) The term "Environmental Activity[ies]" means
any generation, manufacture, production, pumping,, bringing
upon, use, storage, treatment, release, discharge, escaping,
emitting, leaching, disposal or transportation of Hazardous
Materials.
(b) Xxxxxxx shall protect, indemnify, defend (with counsel
satisfactory to Xxxxxxx) and hold harmless Xxxxxxx, his heirs,
representatives, employees, agents, lenders, and ground lessees, if
any, and their respective successors and assigns for, from and against
any and all losses, damages, claims, costs, expenses, penalties,
response costs, fines and liabilities of any kind (including, without
limitation, the cost of any investigation, remediation and cleanup, and
reasonable attorneys' fees) which are determined to be attributable to
(i) any Environmental Activity on the Premises undertaken or committed
by Xxxxxxx or Xxxxxxx'x agents or caused by the negligence of such
persons during the Term of this Sublease. This indemnity shall survive
the termination of this Sublease. Xxxxxxx shall have no liability or
obligation arising out of any violation of any Environmental Law or
contamination or pollution of, or from, the Premises caused by (i)
conduct or conditions occurring prior to, or after, Xxxxxxx'x occupancy
of the Premises or (ii) Xxxxxxx'x or Xxxxxxx'x agents use of, or acts
or omissions on, the Premises.
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(c) Xxxxxxx shall protect, indemnify, defend (with counsel
satisfactory to Xxxxxxx) and hold harmless Xxxxxxx and its directors,
officers, partners, employees, agents, lenders, and ground lessees, if
any, and their respective successor and assigns for, from and against
any and all losses, damages, claims, costs, expenses, penalties,
response costs, fines and liabilities of any kind (including, without
limitation, the cost of any investigation, remediation and cleanup, and
reasonable attorneys' fees) which are determined to be attributable to
(i) any Environmental Activity on the Premises undertaken or committed
by Xxxxxxx or Xxxxxxx'x agents or caused by the negligence of such
persons at any time prior to, during or after the Term of this
Sublease. The indemnity shall survive the termination of this Sublease.
Xxxxxxx shall have no liability or obligation arising out of any
violation of any Environmental Law or contamination or pollution of, or
from, the Premises caused by (i) conduct or conditions occurring during
Xxxxxxx'x occupancy of the Premises, or (ii) Xxxxxxx'x or Xxxxxxx'x
agents use of, or acts or omissions on, the Premises.
14. Xxxxxxx'x Representations and Warranties. Xxxxxxx represents,
warrants and covenants to and with Xxxxxxx that Xxxxxxx has the full right and
power to execute and perform this Sublease and to grant the estate defined
herein and Xxxxxxx, on payment of the rent and performance of the covenants and
agreements hereof, shall peaceably and quietly have, hold and enjoy the Premises
and all rights, easements, appurtenances and privileges belonging or in any way
appertaining thereto without molestation or hindrance of any person claiming by,
through or under Xxxxxxx, subject, however, to the terms of this Sublease.
15. Miscellaneous.
(a) This Sublease Agreement constitutes the entire agreement
between the parties hereto as to the sublease of the Premises and
supersedes all prior discussions, understandings or agreements between
the parties hereto. No modification, amendment, change or addition to
this Sublease Agreement shall be binding on the parties unless reduced
to writing and signed by their authorized representatives.
(b) Except as herein otherwise specified, this Sublease
Agreement shall legally benefit and bind the parties hereto and their
respective successors and assigns. Xxxxxxx may not record this Sublease
Agreement without the prior written consent of Xxxxxxx.
(c) This Sublease Agreement shall be governed by the laws of
the Commonwealth of Pennsylvania, without regard to choice-of-law
provisions, and jurisdiction and venue for all disputes hereunder shall
lie only in the Court of Common Pleas for Cumberland County,
Pennsylvania and/or in the United States District Court for the Middle
District of Pennsylvania.
(d) If any term or provision or portion thereof of this
Sublease Agreement, or application thereof to any person or
circumstance, be held invalid, the remainder of said term or provision
and/or of this Sublease Agreement shall not be affected thereby; and,
to this end, the parties hereto agree that the terms and provisions of
this Sublease Agreement are severable.
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(e) This Sublease Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute but one and same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Sublease
Agreement to be duly executed by their duly authorized representatives.
ATTEST: Xxxxxxx:
XXXX X. XXXXXXX
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Xxxx X. Xxxxxxx
ATTEST: Xxxxxxx:
X.X. XXXXXXX MACHINE PRODUCTS, INC.,
an Arizona corporation
By
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X.X. Xxxxx, its President
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EXHIBIT "A"
[LEASE AGREEMENT]
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