1
Exhibit 10.28
LEASE
BETWEEN
UNITED BUILDING & LEASING CORPORATION
AND
XXXXX ELECTRONICS, INC.
THIS LEASE, made this 25th day of September 1997, between UNITED
BUILDING & LEASING CORPORATION with a principal office located at 0000 Xxxxx
Xxxxxx, X.X. Xxx 0000, Xxxxxxxxxx, XX 00000 (hereinafter called "Lessor"), and
XXXXX ELECTRONICS, INC., an Indiana business corporation with an address at
00000 Xxxxx Xxxx, Xxxxx Xxxx, XX, 00000 (hereinafter called "Lessee").
WITNESSETH:
1. PREMISES. Lessor hereby leases to Lessee:
SEVEN THOUSAND (7,000) SQUARE FEET OF OFFICE SPACE AND SHOP AREA
WITH LOADING DOCK, LOCATED AT THE SOUTH END OF 421 AMITY ROAD,
IN SPACES #7, #8, #9, AND REAR HALF OF SPACE #6 SWATARA
TOWNSHIP, DAUPHIN COUNTY, PENNSYLVANIA, AS SET FORTH ON THE
DRAWING, DESIGNATING SUCH AREA, AS WELL AS THE COMMON AREAS,
ATTACHED HERETO AS EXHIBIT "A." TENNABLE SPACE OCCUPIED BY XXXXX
CONSTITUTES 39% OF THE TOTAL AREA.
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Lease
September 25, 1997
2. TERM. (a) The term of this lease shall commence on.
OCTOBER 1, 1997, OR SUCH SUBSEQUENT DATE AS THE PREMISES ARE
READY FOR OCCUPANCY AND APPROVED BY THE LESSOR AND SHALL EXPIRE
IN FIVE (5) YEARS FROM DATE OF COMMENCEMENT.
(b) Lessee shall have the right and option to renew
this Lease on the same terms and conditions, except for redetermination of the
amount of rental at the time of renewal, for a period of two (2) years.
(c) Such right and option shall be exercisable by
Lessee giving written notice to Lessor not later than four (4) months prior to
the expiration of the present term of the Lease. Thereafter, Lessor and Lessee
shall negotiate the consideration for such renewal term, and shall reduce to
writing both the term and consideration which shall become a part of the term of
this Lease.
3. RENT. Lessee, in consideration and respect of this
Lease, shall pay to Lessor, as rental for the premises that is the subject of
this Lease:
AN ANNUAL RENT EQUAL TO ($46,200.00) DOLLARS, TO BE PAID IN
TWELVE EQUAL MONTHLY PAYMENTS OF $3,850.00 ON THE FIRST DAY OF
EACH MONTH FOR THAT MONTH.
4. LICENSE FEES AND USE OF PREMISES. The premises shall be
used and occupied for Lessee's business and related purposes and shall be used
for no other purpose without the written consent of Lessor, which shall not be
unreasonably withheld,
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September 25, 1997
and Lessee will not, to the detriment of the premises of Lessor, use (nor suffer
or permit be used) the premises or any part thereof for any purpose or in any
manner in violation of any valid and applicable law, regulation or ordinance of
any Federal, State or Local governmental body without first obtaining an
effective waiver or consent with respect thereto. Lessee shall pay all license
fees, inspection charges and any other expenses which may be imposed upon Lessor
applicable to Lessee's business operations on or use of the premises. Lessor
certifies that Lessee's intended use of the premises are supported and permitted
under local zoning ordinances.
5. REPAIRS AND ALTERATIONS. With respect to repairs,
alterations and the like, it is agreed:
(a) Lessor, after receiving written notice from
Lessee and having reasonable opportunity thereafter to obtain the necessary
materials and workmen, agrees to keep in good order and repair the parking lot,
underground sewers and pipes and other outside facilities (except as described
in Section 5 (d) below) and also the roof and all outer walls of the building on
the premises. Lessor shall not be liable to Lessee for any loss or damage caused
by stoppage or failure of all or part of the mechanical plant or equipment upon
or about the premises, nor by leakage from the plumbing, heating, air
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September 25, 1997
conditioning or drainage facilities, nor by stoppage or failure in heat, light,
air conditioning or electric, gas or compressed air supply. Lessee shall be
responsible for its telephone jacks and wiring, computer wiring, alarm systems,
shop wiring, machine connections, any work on Lessee's equipment, collector,
ducting and wiring, and special HVAC systems, if required by Lessee (exclusive
of HVAC systems for shop and office areas, to be installed by Lessor and
maintained by Lessee). Lessee agrees to keep in good working condition: interior
plumbing, heating and air conditioning. Lessor agrees to keep in good condition:
Landscape, snow removal and area lighting.
(b) All movable furniture and trade fixtures placed
or installed in or about the premises by the Lessee shall be and remain the
property of Lessee and may be removed by it at any time, free from any claim of
Lessor, except that Lessee shall promptly remedy any damages to the premises
caused by such removal. All built-in or otherwise permanently attached interior
decorations, shelving and other alterations, additions or improvements made by
Lessee upon the premises shall be only with written approval of Lessor and shall
become the property of Lessor and shall remain upon and be surrendered with the
premises upon the termination of this Lease, without molestation or injury,
except as Lessor shall otherwise in writing agree. For purposes of this
subparagraph, trade fixtures shall be deemed to include, but not by way of
limitation, grinding machines and compressors attached to the premises.
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September 25, 1997
(c) If after notice, Lessee has not repaired or is
not diligently pursuing repair, and Lessee fails or refuses to commence promptly
any of the repairs or other obligations required by subparagraph (b) above and
to complete the same with reasonable dispatch, Lessor may make or cause repairs
to be made or other obligations to be performed, and shall not be responsible to
Lessee for any loss or damage that may be caused to its supplies or business by
reason thereof.
(d) Lessor shall permit Lessee to install grinder
exhaust and compressor connections through existing wall at Lessee's expense.
Lessee shall also be permitted to install an approximately 10 foot by 10 foot
fenced or shelled area outside this wall to house such equipment at Lessee's
expense.
6. SIGNS. No signs shall be constructed, erected or
maintained in violation of any applicable law, regulation or ordinance. Paper or
temporary signs may be used for a maximum of 30 days only.
7. UTILITIES. Lessee shall pay all separately metered
charges for electric and gas (heat) used in and upon the leased premises during
the term of this Lease. Lessor shall pay utilities in general common area as
depicted in the site plan drawing attached hereto as Exhibit "A."
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Lease
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8. TAXES AND COMMON AREA MAINTENANCE. Lessee shall pay
Lessee's pro- rata share, being 39% at the execution of this Lease, as defined
below, of the actual real estate taxes assessed and billed by the local taxing
authority to Lessor. Lessee shall not be responsible for payment of any late
charges hereunder unless such late charges are occasioned by the bad faith
failure of the Lessee to timely pay when timely invoiced. Lessor shall provide
copies of the tax invoices and calculation of Lessee's pro-rata share to Lessee
when Lessor requests payment.
Lessee shall pay Lessee's pro-rata share of common area
maintenance charges, being 39% at the execution of this Lease, such figure being
the actual costs allocated among the several tenants of said building based upon
a fraction the numerator of which is the amount of floor area occupied by Lessee
and the denominator is the amount of net leasable area of said building,
excluding common areas, multiplied by the total of the actual common area
maintenance (CAM) charges as paid by the Lessor. Such amount shall be estimated
for the initial year estimated at $2.25 per square foot, inclusive of real
estate taxes, insurance and CAM's and, thereafter, based upon the actual
previous year's payments. Any excess paid by the Lessee shall be credited
against the following year's CAM charges and any deficit shall be assessed
separately to Lessee for payment
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within forty-five (45) days. Lessor shall provide a yearly report of actual
charges to yearly report of actual charges to Lessee within forty-five (45) days
of the anniversary date of this Lease.
9. INSURANCE. With respect to insurance it is agreed:
(a) Lessee covenants and agrees that it shall
protect and save and keep Lessor forever harmless and indemnified against and
from any penalty or damage or charges imposed for any violation of any law or
ordinance applicable to the premises, whether occasioned by the neglect of
Lessee or those holding under Lessee, and that Lessee will at all times protect,
indemnify and save and keep harmless Lessor against and from all claims, losses,
costs, damages or expenses arising out of or from any accident or other
occurrence on or about the Demised Premises causing injury to any person or
property whomsoever or whatsoever, provided such is not brought about or
occasioned in any way by the negligent or willful act or omission of the Lessor
for which Lessor agrees to indemnify and hold Lessee harmless and shall protect,
indemnify, save and keep harmless Lessor against and from any and all claims and
against and from any and all loss, cost, damage or expense, including reasonable
attorneys' fees, arising out of any failure of Lessee in any respect to comply
with and perform all the requirements and
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September 25, 1997
provisions of this Lease or to comply with any government law, rule, or
regulation, unless such compliance is made impossible by the acts or omission of
Lessor.
(b) Lessee agrees that, at its own cost and expense,
it shall procure and continue in force general liability insurance covering any
and all claims for injuries to persons occurring in, upon or about the Demised
Premises, including all damage from signs, glass, awnings, fixtures or other
appurtenances now or hereafter erected on the Demised Premises during the term
of this Lease, such insurance at all times to be in an amount of not less than
One Million Dollars ($1,000,000) for injury to any one person, and not less than
One Million Dollars ($1,000,000) for injuries to more than one person in one
accident, and Two Hundred Fifty Thousand Dollars ($250,000) property damage.
Such insurance shall be written with a company or companies authorized to engage
in the business of general liability and property insurance in the Commonwealth
of Pennsylvania, Lessor shall be named as an additional insured in said policy,
such insurance shall provide not less than thirty (30) days prior written notice
of cancellation to Lessor unless the insurance company mandates a shorter
period, and there shall be delivered to Lessor a copy of insurance contract
evidencing such coverage. In the event Lessee fails to procure such policies, or
continue the same in full force and
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September 25, 1997
effect, as provided herein, Lessor may obtain such insurance and the premiums on
such insurance shall be deemed additional rent to be paid by Lessee unto Lessor
upon demand.
(c) The cost of all insurance to be procured by
Lessor for the Demised Premises, including but not limited to general liability
insurance for the common areas and hazard and extended coverage insurance for
the building of which the Demised Premises are a part, shall be reimbursed by
Lessee. Such costs shall be allocated among the several tenants of said building
based upon a fraction the numerator of which is the amount of floor area
occupied by Lessee and the denominator is the amount of net leasable area of
said building (excluding common areas) multiplied by the total of such insurance
costs. At the execution hereof, such fraction represents a pro-rata share of
39%. Such insurance may be purchased by Lessor on a full replacement cost basis,
and the premium for the same shall be paid by Lessee as additional rent within
twenty (20) days after billing for same. Lessor shall provide to Lessee a copy
of the invoice for such insurance when Lessor requests payment along with the
calculation showing Lessee's pro-rata share.
10. DAMAGE OR DESTRUCTION OF PREMISES. If the building upon
the premises shall be damaged or destroyed in whole or in part by fire or other
cause during the term
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September 25, 1997
of this Lease, Lessor will repair and restore the same to a good tenable
condition with reasonable dispatch, and the rental herein provided for shall
xxxxx entirely in case the entire building is untenable and pro rata for the
portion rendered untenable, in case a part only is untenable, until the same
shall be restored to a tenable condition; provided however, that:
(a) There shall be no abatement of rental if such
fire or other cause shall result from the willful act of Lessee, its agents or
employees, as determined by a court of competent jurisdiction.
(b) In case the premises shall be damaged or
destroyed to the extent of more than one-half of the value thereof, Lessor or
Lessee may at its option terminate this Lease forthwith by written notice to the
other party, in which event any unabsorbed advance rental shall be forthwith
repaid to Lessee.
(c) If Lessee shall use any part of the building for
storage or other business during the period of repair, a reasonable charge shall
be made therefor against Lessee unless such damage and repair is the result of
the wilful or negligent act or omission of Lessor.
(d) In any event, if the damaged premises are not
restored to mutually acceptable temporary working order and condition within 60
days and mutually acceptable final working order and condition within 90 days,
then Lessee may terminate
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September 25, 1997
this Lease forthwith by written notice to the other party, in which event any
unabsorbed advance rentals shall be forthwith repaid to Lessee.
11. MORTGAGES. Lessor reserves the right in good faith to
subject and subordinate this Lease to the lien of any mortgage or mortgages now
or hereafter placed upon Lessor's interest in the premises or any part thereof,
and Lessee shall execute and deliver any instrument which shall be reasonably
demanded to that end by Lessor, or by any mortgagee, and in the event Lessee
fails to deliver any such instrument after two written requests from Lessor or
any mortgagee, then in that event Lessee hereby irrevocably appoints Lessor its
attorney-in-fact for Lessee to execute and deliver any such instrument for and
in the name of Lessee; provided, however, that:
(a) So long as Lessee is not in default under the
terms of this Lease, it shall not be disturbed or dispossessed by any mortgagee.
(b) Such mortgage shall not cover equipment and
other property belonging to Lessee, but Lessee shall have full power to mortgage
such equipment, property and/or its leasehold interest under this Lease.
(c) Should Lessor default in payment of any
installments due on any mortgage encumbering the premises, Lessee at its
election may pay the amount
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September 25, 1997
thereof after five (5) days prior notice in writing to Lessor if its intention
so to do, and any amount so paid by Lessee shall be credited against the rentals
thereafter payable by Lessee to Lessor.
12. PEACEFUL POSSESSION. Lessor warrants and covenants that
is has full authority to execute and be a party to this Lease. Lessor further
covenants that Lessee, upon paying the aforesaid rental and performing the
covenants and agreements under this Lease by it to be performed, shall have at
all times during the term hereof peaceful and quiet enjoyment and possession of
the premises without any manner of hindrance from Lessor or any persons lawfully
claiming through Lessor.
13. ASSIGNMENT, Sublease and Transfer. Lessee shall not
assign this Lease in whole or part, nor sublet all or any part of the premises,
without first obtaining in each and every instance Lessor's written consent
thereto, which consent shall not be unreasonably withheld. No assignment or
subletting shall operate to relieve or discharge Lessee from its obligations
under this Lease unless Lessor shall otherwise expressly agree in writing. Any
buyer or other transferee of the premises from or through Lessor
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September 25, 1997
shall take and hold the same subject to this Lease and shall stand in the place
and stead of Lessor.
14. INSPECTION. Except in emergency situations, Lessor or
its authorized agents shall have the right upon 48 hours advance notice to enter
upon the premises at all reasonable times for the purpose of inspecting the
same. If any repairs or other obligations under Paragraph 5 hereof shall be
necessary for which Lessee is responsible, Lessor may demand that Lessee make
the same, and if Lessee refuses or neglects forthwith to commence such repairs
or other obligations and complete the same with reasonable dispatch, Lessor may
make or cause to be made such repairs, or other obligations to be performed, and
shall not be responsible to Lessee for any loss or damage that may occur to its
machines or business by reason thereof. If Lessor makes or causes to be made
such repairs, or other obligations to be performed, Lessee agrees that it will
forthwith on demand pay to Lessor the cost thereof.
15. TERMINATION. This Lease may be terminated at any time,
and the premises thereupon repossessed, upon written notice specifying the date
of termination, only in the following events:
(a) Lessor may terminate it upon not less than
fifteen (15) days' written notice to Lessee for non-payment of any rental which
may be at least
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September 25, 1997
thirty (30) days overdue; provided, however, that this Lease shall not for such
reason terminate if, prior to the date of termination specified in the aforesaid
notice, Lessee shall have paid such overdue rental in full.
(b) Either party may terminate it upon not less than
sixty (60) days' written notice to the other party (specifying the defaults
giving rise to such notice) if the latter shall fail or refuse to perform any of
its covenants or agreements under this Lease; provided, however, that this Lease
shall not for such reason terminate if, prior to the date of termination
specified in the aforesaid notice, the defaulting party shall have cured all its
defaults which are so specified.
(c) Either party may terminate it upon written
notice of any duration if the other party shall be adjudicated a bankrupt or if
the other party shall file a petition in bankruptcy, or for a receiver or other
custodian of all or any substantial portion of its property, or to effect a
composition or other arrangement with creditors; or if such a petition shall be
filed against it and not dismissed or discharged within sixty (60) days of its
filing; or if such other party shall admit the material allegations of any such
petition; or if the other party shall make a general assignment for the benefit
of creditors.
16. SURVIVAL OF OBLIGATIONS. Notwithstanding its
termination, this Lease
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September 25, 1997
shall continue in full force and effect to the extent necessary to permit the
carrying out of any provisions which contemplate or require performance by
either party subsequent to such termination; nor shall such termination alter or
affect the enforceability by or against either party of any right or obligation
which shall have accrued prior to such termination (including, but not limited
to, any rental owing and any liability for loss or damage on account of
default). In the event of termination of this Lease, all unabsorbed advance
rentals shall be forthwith repaid to Lessee.
17. RE-ENTRY. Upon termination of this Lease, or if the
premises shall be deserted or vacated, Lessee shall yield up the premises
peacefully, and it shall be lawful for Lessor, its agents, attorneys, heirs,
personal representatives and assigns to re-enter and repossess the premises and
Lessee and each and every occupant thereof to remove and put out. If Lessee
shall fail to yield up the premises peacefully, Lessee shall be liable to Lessor
for all expenses of obtaining possession, including but not limited to court
costs and actual attorney fees.
18. HOLDING OVER. In the event of Lessee holding over after
termination of this Lease, a tenancy from year to year shall thereafter exist in
the absence of a written agreement to the contrary.
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19. REIMBURSEMENT. In the event that either party pays
expenses, costs or obligations of the other party under any provision of this
Lease the payor shall upon making written demand have a right of immediate
reimbursement and/or at its option may treat the amount so paid (owing to
Lessor/Lessee, as the case may be) as equivalent to rent.
20. CUMULATIVE REMEDIES. All rights, remedies and benefits
under this Lease shall be cumulative and shall not be exclusive of any other
rights, remedies and benefits conferred by law or by this Lease; provided,
however, that this Lease shall not by virtue of any law be terminated, nor the
premises repossessed, earlier than permitted by this Lease.
21. WAIVER. No waiver of any provision of this Lease, or of
the breach thereof, shall be construed as a continuing waiver or shall
constitute a waiver of such provision or breach or of any provision or breach.
22. MODIFICATION. Any modification or amendment of this
Lease must be in writing and signed by the parties.
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September 25, 1997
23. INTERPRETATION. The paragraph headings herein are
included solely for convenience and shall in no event affect, or be used in
connection with, the interpretation of this Lease. Each separately numbered
paragraph of this Lease shall be treated as severable to the end that, if any
one or more such paragraphs shall be adjudged or declared illegal, invalid or
unenforceable, this Lease shall interpreted, and shall remain in full force and
effect, as though such paragraph or paragraphs had never been contained in this
Lease. Whenever reasonably necessary in the interpretation of this Lease,
pronouns of any gender shall be deemed synonymous, as shall singular and plural
pronouns. This Agreement shall be construed under the Law of the Commonwealth of
Pennsylvania.
24. SUCCESSORS AND ASSIGNS. This Lease shall be binding upon
the heirs, personal representatives, successors and assigns of the parties,
respectively
25. NOTICES. Any notice, demand or other writing to be given
pursuant to this Lease shall be deemed to have been given and received, and to
be effective for all purposes, when sent by registered or certified mail,
postage prepaid and return receipt requested, to the following address,
respectively (or such other address as the recipient shall previously designate
in writing):
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September 25, 1997
LESSOR: Xxxx X. Xxxxxx, President
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
LESSEE: Xxxxx Electronics, Inc.
00000 Xxxxx Xxxx
Xxxxx Xxxx, XX 00000
Attention: President
26. JANITORIAL SERVICES. Lessee agrees to keep the demised
premises in a clean, neat and orderly manner, and in this respect, will provide
janitorial services at its own expense and Lessor shall have no liability for
such services.
27. INTEREST. Any rental or other amount owing by either
party pursuant to this Lease shall bear interest at a rate of six percent (6%)
per annum from the due date to the date of payment.
28. PAYMENTS AND RECEIPTS. Rentals and other amounts owing
by either party pursuant to this Lease shall be paid at the same address
specified for notices unless a different address shall be designated in writing.
Each party shall be entitled to receive from the other party upon request a
written receipt for any rentals or other such amounts which may be paid.
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September 25, 1997
29. Lessor agrees to indemnify and hold Lessee harmless from
and, if requested by Lessee, defend against all costs, expenses, damages, and
liability, including without limitation court costs, costs of appeals, fees of
consultants and/or experts, fines, levies, penalties, costs of correction
abatement, and clean up, and attorneys' fees, resulting from, relating to, or
asserted by virtue of:
(a) Any latent or structural defects in the Demised
Premises or any improvements located in or about them, or
(b) Any waste or hazardous material now located in
or about the Demised Premises, or hereafter brought upon or about or permitted
to be brought upon or about the Demises Premises by Lessor or any of its
officers, agents, employees, or contractors, or
(c) Violations of any law, ordinance, regulation, or
the like, whether now or hereafter in effect, related to waste or hazardous
material at any time located in or about the Demises Premises, by Lessor or any
of its officers, agents, employees, or contractors. Lessor covenants with Lessee
that Lessor during the term of this Lease will not cause or permit any such
waste or hazardous material to be brought upon the Demised Premises. The
foregoing indemnities shall survive the expiration or earlier termination of the
terms of this Lease.
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IN WITNESS WHEREOF, the parties hereto have hereunto affixed
their hands and seals, all the day and year first above written.
ATTEST:
/s/ Mara Shall By: /s/ Xxxx X. Xxxxxx
----------------------- ---------------------------------------
Witness Xxxx X. Xxxxxx, President of UBL/Lessor
Lessee
XXXXX ELECTRONICS, INC.
By: /s/ Xxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxx
----------------------- ---------------------------------------
Secretary President
SEAL
CJN/ms
