LEASE AGREEMENT
THIS LEASE, is made as of this 1ST day JULY , 1999, by and between PRH
PROPERTIES, LP, a Pennsylvania limited partnership (hereinafter "Landlord"), and
X.X. XXXXXXX MACHINE PRODUCTS, INC., an Arizona corporation (hereinafter
"Tenant").
1. PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord that certain real property containing approximately 2.35 acres
(hereinafter "Premises"), together with all improvements located thereon and
appurtenances thereunto belonging, located on Commerce Drive, South Middleton
Township, Cumberland County, Pennsylvania.
2. TERM. The initial term of this Lease shall be for a period of five (5)
years and shall commence on the 1st day of July 1999 (hereinafter "Commencement
Date") and ending June 30, 2004, unless sooner terminated in accordance with
this Lease. Tenant shall have the right and option to renew the term for five
(5) successive, additional periods of one (1) year each; provided however, that
Tenant shall have no right or option to renew the term of this Lease if an event
of default exists upon the date of giving the notice to renew or at any time
thereafter through and including the expiration date of the then-existing term
of this Lease. In order to exercise its right to renew the, Tenant must provide
Landlord written notice of its exercise thereof at least ninety (90) days prior
to the expiration of the then-existing term of this Lease. The maxim term of
this Lease and all renewal terms is ten (10) years from the Commencement Date.
3. USE. The Premises shall be used by Tenant as an office, manufacturing
and warehouse facility and for no other purpose.
4. RENTAL. (a) Tenant shall pay to Landlord during the initial term of this
Lease monthly rent in accordance with the table below. All rent shall be payable
in advance, punctually and without demand, deduction or set off, payable on the
1st day of each month during the term of this Lease at such place as Landlord
may from time to time designate in writing. The amount of
ANNUAL AND MONTHLY RENTAL TABLE FOR INITIAL TERM:
COMMENCING ON: ANNUAL RENT MONTHLY RENT
-------------- ----------- ------------
7/1/1999 $118,200 $ 9,860
7/1/2000 $123,600 $10,300
7/1/2001 $128,400 $10,700
7/1/2002 $129,720 $10,810
7/1/2003 $130,320 $10,860
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(b) If notice of renewal has been given in accordance with Section 2 of this
Lease, then at the beginning of each year following the expiration of the
initial and each renewal term (a "Renewal Year"), the monthly 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 monthly rent shall be exactly equal
to the change is cost of living as determined by the CPI; PROVIDED, however,
that in no event shall the CPI adjustment to the monthly rent exceed five
percent (5%) for any Renewal Year. To compute such CPI adjustment, the
prevailing CPI will be used. Each such CPI adjustment to the monthly rent shall
be accomplished by multiplying the monthly rent for the lease year terminating
immediately prior to the Renewal Year, for which the adjustment is being
calculated, by a fraction, the numerator of which shall be the most recently
published CPI prior to the first day of the Renewal Year in question and the
denominator of which shall be the CPI used as the numerator in calculation of
the rent adjustment in the previous Renewal Year (but in no event shall the
monthly rent be reduced as a result of such adjustment below the monthly rent
payable immediately prior thereto), and the increased monthly rent resulting
from the CPI adjustment to the monthly rent thereby established shall continue
in effect as the monthly rent until again adjusted as provided herein. In
computing the monthly rent for the first Renewal Year, the denominator of the
fraction described above shall be the most recently published CPI prior to July
1, 2003.
5. LATE CHARGE. If Tenant 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.
6. COMPLIANCE WITH LAWS AND CONDITION OF PREMISE. Tenant shall comply with
all laws, ordinances, orders, permits, licenses, regulations of all governmental
authorities (whether federal, state, local or otherwise) and insurance
requirements concerning the Premises and any fixtures, machinery or equipment
therein, and Tenant's use of the Premises, including, without limitation, all
laws regarding public health and welfare, environmental protection, water and
air pollution, composition of products, underground storage tanks, toxic
substances, hazardous wastes, hazardous substances, hazardous materials, waste
or used oil, occupational health and safety and/.or nuisance, trespass and
negligence. Tenant 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 Landlord or its agents prior to or at the
execution of this Lease 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; provided, however, that in no event shall
this Section 6 be construed to contradict Landlord's indemnification obligations
with respect to environmental matters set forth in Section 30 hereof or
Landlord's representations and warranties and indemnification obligations set
forth in that certain Asset Purchase Agreement dated July 1, 1997.
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7. UTILITIES. The Premises shall be served by electricity, water, sewer,
telephone and other utilities presently available to the Premises. Tenant shall
pay for all such services consumed on the Premises. Landlord shall not be
responsible for any suspension in such services resulting from causes beyond its
control or for temporary periods during which repairs are being made to the
Premises.
8. REAL ESTATE TAXES AND ASSESSMENTS. Landlord shall provide to Tenant,
within ten (10) business days after receipt, all notices of real estate taxes,
and general and special assessments (including sewer and water rentals and
charges, trash, street lights, and the like) assessed against the Premises.
Tenant agrees to pay, within the applicable discount period, all said real
estate taxes and assessments.
If the Tenant fails to pay such real estate taxes or assessments and other
charges which it is obligated to pay pursuant to this paragraph within the
aforesaid period of ten (10) business days after receipt, the Landlord may, but
shall not be obligated to, pay such real estate taxes, assessments and charges,
as the case may be, together with the interest and penalties thereon, and the
amount so paid shall be considered additional rent due and in arrears.
9. PERSONAL PROPERTY TAXES. Tenant shall pay before delinquency, all taxes,
assessments, license fees, and other charges that are levied and assessed
against personal property or fixtures installed or located in or on the
Premises, and that are payable during the term of this Lease.
10. MAINTENANCE AND REPAIRS. Tenant, at its own cost, shall maintain the
Premises (including the roof, structural and mechanical components of the
improvements located on the Premises, and the adjoining walks and grounds) and
any fixtures, machinery or equipment thereon in good condition. Tenant shall be
responsible for the cost of any janitorial services needed for the Premises.
Landlord shall not have any responsibility to maintain the Premises. Upon
expiration or termination of the term, Tenant shall return the Premises to the
Landlord in as good condition and repair as existed on the commencement date of
the term, ordinary wear and tear along excepted.
11. GROUND MAINTENANCE. Tenant, at its own cost, shall maintain the grounds
of the Premises, including but not limited to snow and ice removal, landscaping,
mowing and any other maintenance necessary to preserve the ground of the
Premises in the condition as of the Commencement Date. Upon expiration or
termination of the term of this Lease, Tenant shall return the grounds of the
Premises to Landlord in as good condition as existed on the Commencement Date.
12. STRUCTURAL ALTERATIONS. Tenant shall not make any structural or
exterior alterations to the Premises without Landlord's prior written consent,
which consent shall not be unreasonably withheld or delayed.
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13. NONSTRUCTURAL ALTERATIONS AND FIXTURES. Tenant, at its cost, after
obtaining Landlord's prior written consent, which consent may not be
unreasonably withheld or delayed, may make nonstructural alterations to the
interior of improvements located on the Premises and may place and attach such
equipment, machinery and fixtures therein as Tenant requires in order to conduct
its business on the Premises. In making any alterations, etc., Tenant shall
comply with the following:
(a). Unless waived in writing by Landlord, Tenant shall submit
reasonably detailed plans and specifications of the proposed
alterations or placing of fixtures, machinery or equipment to Landlord
at least fifteen (15) days prior to the date it intends to commence
the alterations or fixturing.
(b). The alterations and fixturing, etc., shall be approved by
all appropriate government agencies, and all applicable permits and
authorizations shall be obtained before commencement of the work.
Any alterations made shall remain on and be surrendered with the
Premises on expiration or termination of the term, except that Landlord may
elect to require Tenant, at Tenant's cost, to remove any nonstructural
alterations and fixtures that Tenant has made to the Premises, and Tenant
shall restore the Premises to as good condition as existed at the
commencement of the term, normal wear and tear excepted.
If Tenant is not then in default of any provision of the Lease, Tenant
shall have the right to remove from the Premises immediately prior to the
expiration of the term any and all equipment, machinery and fixtures which
Tenant has placed or attached in or to the Premises (and at Landlord's
option, Landlord may require Tenant to remove same), and such removal shall
be done in a manner that will not cause any structural damage to the
Premises, and Tenant shall promptly restore any damage caused by such
removal.
14. MECHANICS' LIENS. Tenant will not permit any mechanics' claim or lien
to be placed upon the Premises or any building or improvement constituting a
part thereof during the term of this Lease, and in case of the filing of any
such claim or lien, Tenant will promptly discharge same or procure a lien
release bond by a good and sufficient surety corporation in an amount equal to
one and one-half times the amount of the claim or lien. If a default in the
discharge thereof or procuring of a bond shall continue for thirty (30) days
after written notice from Landlord to the Tenant, the Landlord shall have the
right and privilege at Landlord's option of paying the same or any portion
thereof without inquiry as to the validity thereof, and any amounts so paid,
including expenses and interest shall be deemed additional rental due and
payable by Tenant to Landlord.
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15. INDEMNITY. Tenant shall indemnity and hold Landlord harmless from all
claims and liability, including reasonable attorneys' fees and related costs and
expenses, arising out of any damage or injury to or death of any person or
property occurring in, on or about the Premises, or resulting from any act or
omission of Tenant, unless such liability arises from the negligence of
Landlord.
16. INSURANCE. Tenant shall, at its sole cost and expense, maintain fire
insurance coverage with all-risk endorsements on the improvements located on the
Premises in an amount equal to the full replacement cost of the said
improvements. In addition, Tenant shall maintain casualty insurance on its
personal property, but in any event, all personal property of any kind or
description of Tenant on the Premises shall be at tenant's sole risk, and
Landlord shall not be liable for any damage done to or loss of such personal
property or damage or loss suffered by the business of Tenant arising out of any
act or neglect of other occupants of the building located on the Premises, or
other parties, or from bursting, overflowing or leaking of water, sewer or steam
pipes or from heating or plumbing fixtures or from electric wires of equipment,
or from gas or odors, or caused in any manner whatsoever except in the case of
the intentional neglect of Landlord.
Tenant shall procure and maintain, throughout the term of this Lease
Agreement, general liability insurance, insuring against injury or death to
persons occurring in or about the Premises and the improvements located thereon.
Tenant agrees to release, indemnify and hold harmless Landlord from and
against any and all costs, losses, damages, claims and liabilities, including
reasonable attorneys' fees, arising out of or attributable to the condition,
use, operation or maintenance of the Premises and any improvements or buildings
located thereon, or arising out of or based upon any injury (including death) to
any person, or damage to any property, occurring in, on or about the Premises,
and any improvements or buildings thereon, or resulting from any act or
admission of the Tenant. The aforesaid general liability insurance, shall, in
addition, insure performance by the Tenant of the indemnity provisions provided
above.
Tenant shall name Landlord and Landlord's mortgagee, if any, on all
policies of insurance obtained regarding the Premises, each as their interest
may appear. Each of the policies shall contain an endorsement that it shall not
be cancelled without at least ten (10) days prior written notice to Landlord and
any such mortgagee. Landlord and its mortgagee, if any, shall be entitled to a
duplicate original of all such insurance policies no later than ten (10) days
prior to the expiration date of the then existing polices, together with
evidence that the premiums have been prepaid for the full term of the policy.
If the Tenant fails to pay the premium for any of the policies of insurance
listed above which it is obligated to pay pursuant to this paragraph, the
Landlord may, but will not be obligated to, pay such insurance premiums for
tenants, and the amount so paid shall be considered rent due and in arrears.
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17. MUTUAL RELEASE. Notwithstanding anything in this Lease to the contrary,
Landlord and Tenant hereby waive and release each other of and from any and all
rights of recovery, claims, actions or causes of action against each other,
their agents, officers, representatives, employees, servants, contractors and
invitees for any loss or damage that may occur to the Premises, the building,
improvements or fixtures therein or thereon, or any personal property within the
building from any cause whatsoever which could be insured against under the
terms of an all-risk fire, and extended coverage insurance policy, regardless of
cause or origin, including the negligence of Landlord or Tenant or their agents,
officers, representatives, servants, employees, contractors or invitees.
18. PARTIAL DESTRUCTION OF THE PREMISES. If the Premises are partially
damaged by fire or other cause not in excess of 50% of the area or value of the
Premises, the damage thereto (exclusive of Tenant's property) shall be repaired
or restored promptly by Landlord, at no expense to Tenant. If the damages are
such as to render all or a part of the Premises untenable, the rent shall be
abated to an extent corresponding with the period during which and the extent to
which the Premises have become untenantable. More specifically, until the
Premises are satisfactorily repaired or restored by Landlord as described above,
Tenant's obligation to pay rent apportionable to such period of nonuse shall be
reduced based on a fraction, the numerator of which is the number of square feet
no longer used or usable by Tenant, and the denominator of which shall be the
total square footage leased by Tenant hereunder.
19. TOTAL DESTRUCTION OF THE PREMISES. In the event of total destruction of
the Premises (i.e., greater than or equal to 50% of the area or value of the
Premises), Landlord shall have the option to rebuild, and rent shall xxxxx until
such time as the Premises are available to Tenant (except that Landlord shall
not be responsible for restoring any of Tenant's fixtures or other property of
Tenant), at which time rent shall again commence. In the event, however,
Landlord elects not to rebuild or does not within sixty (60)days after the
destruction commence to rebuild or repair, or does not within one hundred eighty
(180) days make available to Tenant the Premises, this Lease shall thereupon
terminate.
20. CONDEMNATION. In the event the Premises or a portion thereof are taken
or sold pursuant to the exercise of the right of eminent domain, rent shall be
proportionately abated and reduced (in the case of a partial taking) or this
Lease shall be terminated (in the case of a taking of the whole), as the case
may be, but in no event shall Tenant be entitled to receive any part of the
award paid to Landlord in connection therewith, and Tenant hereby assigns to
Landlord all such awards and compensation, except that Tenant shall have the
right to claim any separate award for the value of Tenant's fixtures,
improvements and relocation expenses. If the useable square footage of the
building is reduced by ten percent (10%) or more as a result of such
condemnation, Tenant shall have the right to terminate this lease.
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21. ASSIGNMENT AND SUBLETTING. Tenant shall not assign or sublet the
Premises or any part thereof without the written consent of Landlord, which
consent shall not be unreasonably withheld or delayed.
22. LANDLORD'S MORTGAGES. This Lease is expressly subject to all present
and future mortgages or other security instruments of Landlord encumbering the
Building. Tenant covenants to execute such documents as requested by Landlord to
confirm such subordination, and upon failure to do so, hereby irrevocably
appoints Landlord its agent and attorney-in-fact to execute the same on its
behalf.
23. QUIET ENJOYMENT. Landlord covenants to allow Tenant quietly and
peaceably to enjoy possession of the Premises free from interference or
interruption of Landlord or any other person claiming under or through Landlord,
and Landlord represents to Tenant that it has a sufficient ownership interest in
the Premises to enter into and carry out the provisions of this Lease.
24. SURRENDER. At the expiration or earlier termination of this Lease,
Tenant shall quit and surrender the Premises in the same condition as they were
delivered to Tenant at the Commencement Date, normal wear and tear excepted. All
fixtures, improvements and appurtenances attached to or built into the Premises
by Tenant in such a manner as to become part of the freehold, shall become and
remain a part of and be surrendered with the Premises, except that Landlord may
elect to require Tenant, at Tenant's expense, to remove any or all of such
fixtures, nonstructural improvements and appurtenances, and Tenant shall repair
any damage caused by such removal; provided, however, that in no event shall
this Section 24 be construed to contradict any provisions of Section .13 hereof.
Time is of the essence of each provision of this Lease. Tenant 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 Lease.
25. SIGNS. Tenant shall provide and maintain, at its expense, a sign on or
about the building located on the Premises, which sign shall be approved by
Landlord prior to it being affixed to the building.
26. ACCESS. Landlord and Landlord's authorized agents shall have the right
from time to time after reasonable prior notice or in the case of an emergency,
no notice, to Tenant to enter the Premises for the purposes of making repairs,
of inspecting the Premises, and of showing the Premises to prospective
purchasers or tenants.
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27. DEFAULT BY TENANT.
(a) If Tenant shall default (i) in making any payment of rent or other sums
required to be paid by Tenant in accordance with the terms of this Lease, or
(ii) shall default in the observance or performance of any other provision of
this Lease, or (iii) there shall occur an assignment by Tenant for the benefit
of creditors; an appointment of a receiver of the assets of Tenant; or the
filing for, by or against Tenant of any action under Chapter 7 of the Federal
Bankruptcy Act or comparable federal, state or local legislation that
establishes a plan for the liquidation of the Tenant 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 after
Landlord notifies Tenant, an Event of Default shall have occurred; provided,
however, that if the nature of Tenant" default is such that it is not capable of
being cured within such thirty (30) day period, the Event of Default shall not
be deemed to have occurred if Tenant commences such cure within a thirty (30)
day period and thereafter diligently prosecutes such cure to completion, as
determined by Landlord in Landlord's sole and reasonable discretion.
(b) If an Event of Default has occurred, Landlord may declare this Lease
Agreement and Tenant's right to possession of the Premises ended, whereupon
Landlord shall, without this exposition limiting its rights in law or in equity,
have the following remedies:
(i) Landlord may declare the entire rent and other sums reserved
hereunder for the full term of this Lease remaining unpaid
immediately due and payable in full;
(ii) Landlord may terminate this Lease and annul the unexpired
portion of this Lease;
(iii) Landlord may enter upon and repossess the Premises and at
Landlord's option, may relet the Premises, in which case all
expenses of such reletting shall be deemed additional rent
immediately due and payable hereunder, and all rent when
received from the new tenant shall be credited against Tenant's
liability hereunder;
(iv) Landlord may institute legal proceedings to collect all rent and
sums due and payable hereunder and to recover possession of the
Premises.
(V) REMEDIES CUMULATIVE: It is understood and agreed that the
remedies herein given to Landlord shall be cumulative, and the
exercise of any one remedy by Landlord shall not be to the
exclusion of any other remedy. Each and all of said remedies
shall be exercisable repeatedly and as often as may be
necessary.
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(VI) NO WAIVER: No delay or omission in the exercise of any right or
remedy of Landlord on any default by Tenant shall impair such a
right or remedy or be construed as a waiver. Any waiver by
Landlord of any default must be in writing and shall not be a
waiver of any other default concerning the same or any other
provision of this Lease unless and only to the extent such
additional waiver(s) are specifically provided for in such
written waiver.
28. DEFAULT BY LANDLORD.
(a) In the event Landlord shall default in keeping, observing or performing
any of the terms, provisions, covenants and conditions contained in this Lease,
and such default is not cured (or proper corrective measures to cure such
default commenced) by Landlord within the period specified herein for the curing
of such defaults, Tenant shall have the right, but not the obligation, to remedy
such default after giving written notice thereof to Landlord. Landlord agrees to
promptly send to Tenant a copy of any notice of default received from the
holders of present or future mortgages or other security instruments encumbering
the building.
(b) In the event Landlord shall default in keeping, observing or performing
any of the terms, provisions, covenants and conditions contained in this Lease,
and such default is not cured (or proper corrective measures to cure such
default commenced) by Landlord within ten (10) days of such default, Tenant, at
any time thereafter upon ten (10) days' written notice to Landlord, may declare
this Lease ended, whereupon Tenant shall have the remedies provided at law or in
equity.
29. HOLDOVER. If Tenant holds possession of the Premises after the term of
this Lease and any exercised renewal options Tenant shall become a tenant from
month-to-month upon the terms herein specified, but at a monthly base rent equal
to the monthly base rent payable during the last month of the term multiplied by
110%, which shall be payable monthly in advance, and such tenancy shall continue
on a month-to-month basis until terminated by Landlord or Tenant upon at least
one month's prior written notice to terminate such monthly tenancy.
30. TOXIC MATERIALS.
(a) As used in this Lease.
(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 or subsequently
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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.ss.ss.9601
et seq.); the Resource Conservation and Recovery Act as amended
(42 U.S.C.ss.ss.300f et seq); the Clean Water Act as amended (33
U.S.C.ss.ss.1251 et seq.); the Clean Air Act as amended (42
U.S.C.ss.ss.7401 et seq.) the Toxic Substance Control Act as
amended (15 U.S.C.ss.ss.136 et seq.) the Solid Waste Disposal
Act as Amended (42 U.S.C.ss.ss.3251 et seq.) the Hazardous
Materials Transportation Act (49 U.S.C.ss.ss.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) Tenant shall protect, indemnify, defend (with counsel satisfactory to
Landlord) and hold harmless Landlord, 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
Tenant or Tenant's agents or caused by the negligence of such persons during the
Term of this Lease. This indemnity shall survive the termination of this Lease.
Tenant shall have no liability or obligation arising out of any violation of any
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Environmental Law or contamination or pollution of, or from, the Premises caused
by (i) conduct or conditions occurring prior to July 1, 1997, or after, Tenant's
occupancy of the Premises or (ii) Landlord's or Landlord's agents use of, or
acts or omissions on, the Premises.
(c) Landlord shall protect, indemnify, defend (with counsel satisfactory to
Tenant) and hold harmless Tenant 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
Landlord or Landlord's agents or caused by the negligence of such persons at any
time prior to, during or after the Term of this Lease. The indemnity shall
survive the termination of this Lease. Landlord 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 Tenant's or
Tenant's agents use of, or acts or omissions on, the Premises.
31. LANDLORD'S LIABILITY. The maximum combined liability of the Landlord
and the principals of Landlord shall limited to the greater of their combined
equity in the leased premises on (i) July 1, 1999 or (ii) the day immediately
preceding that on which the Landlord or one of its principal's receives
notification from the lessee of a claim under this lease against the Landlord or
one of its principals. The interest of the Landlord herein may be assigned, in
which case the Landlord shall advise Tenant of the name of the assignee and
Landlord shall have no liability hereunder from and after the effective date of
any such assignment, except for obligations which may have theretofore accrued.
32. 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 Landlord: PRH Properties, LP
00000 X. Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
With a copy to: XxXxxx, Xxxxxxx & Xxxxxx
000 Xxxx Xxxxxx
Post Office Box 1166
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: W. Xxxxxx Xxxxxxxxx, Esquire
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If to Tenant:
Amtech Systems, Inc.
000 Xxxxx Xxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxx, Vice President-Finance, CFO
With a copy to:
Squire, Xxxxxxx & Xxxxxxx
00 X. Xxxxxxx Xxxxxx, Xxxxx #0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxx, Esquire
33. ENTIRE AGREEMENT. This Lease constitutes the entire agreement between
the parties hereto as to the Lease of the Premises and supersedes all prior
discussions, understandings or agreements between the parties hereto. No
modification, amendment, change or addition to this Lease Agreement shall be
binding on the parties unless reduced to writing and signed by their authorized
representatives.
34. MECHANICS' LIENS. The interest of Landlord in the Premises shall not be
subject to liens for materials, services or improvements which have been
furnished by any person at the request of Tenant, and Tenant shall not have the
authority to in any way encumber the interest of Landlord.
35. GOVERNING LAW. This Lease 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.
36. LEGALLY BINDING. Except as herein otherwise specified, this Lease
Agreement shall legally benefit and bind the parties hereto and their respective
successors and assigns. Tenant may not record this Lease Agreement without the
prior written consent of Landlord.
37. LANDLORD'S REPRESENTATIONS AND WARRANTIES. Landlord represents,
warrants and covenants to and with Tenant that Landlord has the full right and
power to execute and perform this Lease and to grant the estate defined herein
and Tenant, on payment of the rent and performance of a 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 Landlord, subject, however, to the terms of this Lease.
38. MISCELLANEOUS.
(a) If any term or provision or portion thereof of this Lease Agreement,
or application thereof to any person or circumstance, be held invalid,
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the remainder of said term or provision and/or of this Lease Agreement
shall not be affected thereby; and, to this end, the parties hereto
agree that the terms and provisions of this Lease Agreement are
severable.
(b) In no event shall this Lease Agreement or anything contained herein be
construed to contradict Xxxxxxx'x indemnification obligations with
respect to environmental matters set forth in Section 13 of the
Sublease between Xxxx X. Xxxxxxx, as an individual, and X.X. Xxxxxxx
Machine Products, Inc. dated as of July 1, 1997, as amended by
Amendment #1, or in anyway limit the duration of said indemnification
obligations.
IN WITNESS WHEREOF, the undersigned have caused this Lease to be duly
authorized and executed as of the day and year first above written.
ATTEST: LANDLORD:
PRH PROPERTIES, LP
By: /s/ Xxxx X. Xxxxxxx
--------------------------- ------------------------------------
Xxxx X. Xxxxxxx, Partner
ATTEST TENTANT:
X.X. XXXXXXX MACHINE PRODUCTS, INC.
By: /s/ Xxxxxx X. Xxxx
--------------------------- ------------------------------------
Xxxxxx X. Xxxx, its Vice President
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AMENDMENT #1
TO
SUBLEASE AGREEMENT
Amendment #1 to that certain Sublease dated July 1, 1997, 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").
WITNESSETH:
In consideration of the mutual covenants set forth in the Sublease and in
Section 38(b) of the lease dated July 1, 1999 and herein e parties hereto agree
to amend the Sublease as follows:
In Sub-section 13(c) on page 7 of the Sublease, the words "Xxxxxxx or
Xxxxxxx'x" in line eight (8) thereof are to be and hereby are replaced with the
words "Xxxxxxx or Xxxxxxx'x" in order to reflect the original intent that said
line would mirror, rather than copy, line 8 of Sub-section 13(b) thereof.
Except for the change noted above, all terms of the Sublease remain in
effect and unchanged.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment #1 as
of the 1ST day of July 1997.
ATTEST: XXXXXXX:
XXXX X. XXXXXXX
By: /s/ Xxxx X. Xxxxxxx
--------------------------- ------------------------------------
Xxxx X. Xxxxxxx
ATTEST TENTANT:
X.X. XXXXXXX MACHINE PRODUCTS, INC.
By: /s/ Xxxxxx X. Xxxx
--------------------------- ------------------------------------
Xxxxxx X. Xxxx, its Vice President
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