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EXHIBIT 10.12
Lease Agreement by and between Regional Industrial Development Corporation
of Southwestern Pennsylvania and Steel City Products, Inc.
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INDUSTRIAL CENTER OF MCKEESPORT
L E A S E
THIS LEASE is made this 11 day of November 1997, between REGIONAL
INDUSTRIAL DEVELOPMENT CORPORATION OF SOUTHWESTERN PENNSYLVANIA, a Pennsylvania
nonprofit corporation, hereinafter called "Lessor", and STEEL CITY PRODUCTS,
INC., a Delaware corporation, hereinafter called the "Lessee".
NOW, THEREFORE, intending to be legally bound hereby, the parties hereto
agree as follows:
SECTION 1
PREMISES AND TERM
The Lessor does hereby lease and demise unto the Lessee 66,722 square feet
in the McKeesport Industrial Manor building and the five (5) acre parcel of land
on which said building is located, situate at 000 Xxxxxx Xxxxxx (the "Premises")
in the RIDC Riverplace/Industrial Center of McKeesport property, in the City of
McKeesport, Allegheny County, Pennsylvania, as identified in Exhibit "A",
together with certain outdoor parking areas, and the non-exclusive right to use
in common with other tenants, all passageways, roadways, and similar facilities
serving other areas of the Industrial Center of McKeesport.
The term of this Lease shall commence and possession shall be given as of
12:01 AM on October 15, 1997, (the "Commencement Date"). The term of this Lease
shall expire at 11:59 PM on December 31, 2002. (the "Expiration Date").
SECTION 2
EXTENSION BY MUTUAL CONSENT
If Lessee lawfully occupies the Premises after the end of the term after
having obtained Lessor's written consent to do so, this Lease and all its terms,
provisions, conditions, covenants, waivers, remedies and any and all of Lessor's
rights herein specifically given and agreed to, shall be in force for one month
thereafter and thereafter from month to month until either party gives the other
thirty (30) days written notice of its desire to terminate this Lease.
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SECTION 3
BASE RENT AND ADDITIONAL RENT
A. BASE RENT
As rental ("Base Rent") for the Premises, Lessee shall pay to the Lessor at
its office in Pittsburgh beginning January 2, 1998 and on the first business day
of each successive calendar month, in advance and without demand, deduction, or
setoff, together with any escalations of rent provided in the Lease, the sum of
TWENTY THOUSAND FIVE HUNDRED SEVENTY-THREE AND 00/100 DOLLARS ($20,573.00).
B. ADDITIONAL RENT - REAL ESTATE TAXES
In the event the real estate taxes payable by Lessor on the Premises for the
fiscal year ending August 31, 1998 or any subsequent fiscal year of the term
hereof, shall exceed the amount payable by Lessor for such taxes for the fiscal
year ending August 31, 1997, then Lessee shall pay, as Additional Rent, that
excess amount.
In the event that Additional Rent is payable due to an increase in real
estate taxes, then Lessor shall furnish Lessee a written statement, with copies
of bills from the respective taxing authorities, which statement shall show the
computation of such excess. Such Additional Rent shall be paid within thirty
(30) calendar days following Lessee's receipt of Lessor's written statement.
If at any time during the term hereof the methods of taxation prevailing at
the commencement of the term hereof shall be altered so that in lieu of, or as a
supplement to, or a substitute for the whole or any part of the real estate
taxes or assessments now levied, assessed, or imposed upon the Premises, there
shall be levied, assessed, or imposed any form of assessment, tax, license fee,
license tax, business license fee, business license tax, excise tax, commercial
rental tax, levy, charge, penalty, or other imposition by the federal or state
government, any political subdivision, municipality, school district, or other
taxing body, then Lessee shall pay, as the case may be, all such taxes,
assessments, levies, impositions and the charges or the part thereof so measured
or based, which are in lieu of or a substitute for the whole or any part of the
real estate taxes or assessments now levied, assessed or imposed on the Premises
that are in excess of the taxes payable with
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respect to the fiscal year ending August 31, 1997 (the "Excess Taxes"). Upon
failure of the Lessee to pay the same when due, Lessor shall have the right to
pay same and to collect the amount thereof from Lessee in the same manner as
Rent in arrears as hereinafter provided. Lessor shall promptly submit to Lessee
all real estate or other applicable tax notices when they are received from the
taxing bodies. Lessee shall pay all Excess Taxes on or before the due payment
date, and shall provide the Lessor with evidence of payments ten (10) days prior
to the date on which they would become delinquent. Lessee shall also pay any
taxes that may be assessed against its own real or personal property.
C. ADDITIONAL RENT - MAINTENANCE AND OPERATIONS
If the expenses for maintaining and operating the Premises during the fiscal
year ending August 31, 1998 or during any fiscal year thereafter exceed the
expenses for maintaining and operating the Premises during the fiscal year
ending August 31, 1997, then the Lessee shall pay to the Lessor as Additional
Rent the portion of such excess attributable to the Premises, such Additional
Rent to be paid in twelve equal monthly installments with each regular monthly
Base Rent payment, commencing January 1 of the calendar year immediately
succeeding the fiscal year in which such excess occurs; provided, however, that
any such Additional Rent shall not be due and payable beyond the term of this
Lease. On or before December 15, 1998, and on or before December 15 of each
calendar year thereafter, the Lessor shall furnish to the Lessee a written
statement showing the computation of such excess, if any, for the preceding
fiscal year and showing the amount of Additional Rent for which the Lessee shall
be obligated under this paragraph.
The phrase "expenses for maintaining and operating the Premises" shall be
deemed to mean those expenses incurred during such operating year in respect of
the operation and maintenance of the Premises in accordance with accepted
principles of sound management and accounting practices as applied to the
operation and maintenance of industrial buildings, including premiums for
insurance carried by the Lessor. The term "insurance" shall include: fire and
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extended coverage insurance; vandalism and malicious mischief insurance, boiler
insurance; rent insurance; public liability insurance. Such expenses shall not
include (i) expenses for any capital improvement made to the land or building;
(ii) expenses for painting, redecorating or other work which the Lessor
performs; (iii) expenses for repairs or other work occasioned by fire, windstorm
or other insurable casualty; (iv) expenses incurred in leasing or procuring new
lessees, including lease commissions, advertising expenses and expenses of
renovating space for new lessees; (v) legal expenses in enforcing the terms of
any lease; (vi) interest or amortization payments on any mortgage; (vii) wages,
salaries or other compensation paid to any employees above the grade of building
superintendent; or (viii) wages, salaries or other compensation paid for clerks
or attendants in concessions operated by the Lessor.
D. PAYMENT PROVISIONS
Lessee hereby covenants and agrees to pay the Base Rent hereby reserved as
and when due , and also all sums of money, charges or other amounts required to
be paid by the Lessee to the Lessor which shall be "rent" in addition to the
Base Rent provided for herein. Nonpayment of Additional Rent when due shall
constitute a default under this Lease, unless being disputed in good faith, to
the same extent, and shall entitle the Lessor to the same remedies, as
nonpayment of Base Rent.
Rent payments shall be made by check, payable to the Lessor, which shall be
delivered or mailed, postage prepaid, to:
Regional Industrial Development Corporation
Post Office box 360146M
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
SECTION 4
UTILITIES
Lessee agrees to pay to respective utility companies utility charges for
water, electricity, gas and sewerage, associated with the Premises and
separately metered to Lessee.
In the event Lessee fails to pay the same when due,
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Lessor shall have the right to pay the same and collect the amount thereof from
Lessee in the same manner as Additional Rent.
SECTION 5
USE
Lessee will not engage nor will Lessee permit any person or corporation to
engage upon the Premises in any trade or occupation which is in violation of
law. Lessee shall use the Premises only for its corporate purpose and pursuant
to Exhibit "C" entitled RIDC Protective Standards and Controls.
Anything in this Lease contained to the contrary notwithstanding, Lessor
covenants and represents that the Premises conform to the requirements of all
governments and governmental bodies having jurisdiction; and that the Premises
may lawfully be used for the purposes herein permitted.
SECTION 6
ALTERATIONS
Lessee acknowledges and agrees that possession of the Premises is to be
delivered to it in "as is" condition. The Lessor will address and correct the
items, with the exception of any work associated with the loading docks,
outlined in Exhibit "D" entitled Major Items Needing Attention which was
developed by Lessee. Exhibit "B" which is attached hereto and made a part hereof
is a "Floor Plan" of the Premises.
Any and all additions, alterations and improvements made by the Lessee
("Lessee's Improvements") shall be done in a good and workmanlike manner.
Prior to the commencement of construction of Lessee's Improvements, Lessee
shall furnish to Lessor the plans and specifications of the construction work to
be undertaken, shall furnish information as to the equipment to be installed,
and shall obtain Lessor's written approval of said plans and specifications,
which approval shall not be unreasonably withheld or delayed. Lessee shall
obtain all necessary permits required by governmental authorities having
jurisdiction prior to the commencement of construction of Lessee's Improvements.
Lessee's Improvements shall become the property of the
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Lessor and shall remain upon and be surrendered with the Premises at the
expiration or earlier termination of this Lease.
It is not intended to include in the expression, Lessee's Improvements, any
mechanical equipment and trade fixtures installed by the Lessee, all of which
may be removed by Lessee on the expiration or earlier termination of this Lease
if (i) Lessee is not in default hereunder, (ii) such removal does not damage the
Premises, and (iii) any damage that may be occasioned by any such removal shall
be repaired by Lessee in a good and workmanlike manner.
If Lessor so directs by written notice to Lessee, prior to the expiration of
this Lease, or within fifteen (15) days thereafter, the Lessee shall promptly
remove all of Lessee's Improvements plus any and all trade fixtures or
mechanical equipment which were placed in the Premises by Lessee and which are
designated in said notice and that were not previously agreed upon by both
Lessee and Lessor that they could remain as fixed realty. Lessee shall repair
any physical damage occasioned by such removal, and in default, thereof, Lessor
may effect said removals and repairs at Lessee's expense.
Lessee may bring such equipment, furniture, trade fixtures or other
personal property into the Premises as may be necessary for its business;
provided, however, that Lessee shall first notify Lessor of the type and nature
of such personal property to be brought onto the Premises. Should such personal
property be of an unusual size, type, or weight, so as to affect the Premises,
then Lessor reserves the right to restrict the use of same in the Premises.
Lessee will not file, nor will it permit or suffer any contractor or
subcontractor, materialman or mechanic or other person under it to file, nor
shall any contractor, subcontractor, materialman or mechanic file any mechanics'
lien or other liens or claims for work done or materials furnished in or about
the Premises against the Premises or the structure of which it is a part. Unless
Lessor otherwise agrees, in writing, prior to the commencement of any work on
the Premises, Lessee shall file in the office of the Prothonotary of Allegheny
County a waiver of the right
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to file liens which shall be in the usual form for such waivers, such form to be
approved by the Lessor.
Notwithstanding the foregoing, if any mechanics' or other lien shall be
filed against the Premises or the Complex purporting to be for labor or material
furnished or to be furnished at the request of Lessee, then Lessee shall, at its
expense, cause such lien to be discharged of record by payment, bond or
otherwise, within ten (10) days after the filing thereof. If Lessee shall fail
to cause such lien to be discharged of record within such ten-day period, or, if
such lien is contested by Lessee and Lessee fails to provide adequate security
for Lessor's protection, then Lessor may cause such lien to be discharged by
payment, bond or otherwise, without investigation as to the validity thereof or
as to any offsets or defenses thereto, and Lessee shall, upon demand, reimburse
Lessor for all reasonable amounts paid and costs incurred including attorneys'
fees, in having such lien discharged of record.
Lessee acknowledges and agrees that, except as expressly set forth in this
Lease, there have been no representations or warranties made by or on behalf of
Lessor with respect to the Premises. The taking of possession of the Premises by
Lessee shall establish that the Premises were at such time in satisfactory
condition, order and repair except with respect to latent defects.
SECTION 7
SIGNAGE
Lessee hereby agrees that it will not install or post any exterior signs on
or over the Premises except those approved in writing in advance by Lessor which
approval shall not be unreasonably withheld or delayed; and that any such signs
will conform to the requirements set forth under Exhibit "C".
SECTION 8
MAINTENANCE
Lessee covenants as follows:
a. That Lessee will, at its own expense, replace any glass broken on the
Premises and repair, restore, or replace all partitions and fixtures that may be
installed by it which are damaged or destroyed by any cause.
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b. That Lessee shall make all nonstructural repairs to the interior of the
Premises, including, but not limited to, repairs to the air conditioners and
heating units with a maintenance contract that is reasonably satisfactory to
Lessor, the plumbing and electrical fixtures, and the doors and locks.
c. That Lessee shall make all repairs and, if necessary the replacement, of
any nature to any part of the Premises necessitated by the act or neglect of the
Lessee or its agents, employees or invites other than those resulting from fire,
casualty or other insurable cause.
d. That Lessee shall make no modifications to any parts of the structure of
the Premises without written approval of Lessor. This shall be deemed to include
the floor slabs, perimeter walls and the roof of the Premises as well as any
suspensions from the roof structure. A violation of this covenant shall be
deemed a default under this Lease entitling Lessor to exercise any of the
remedies provided for herein.
e. That Lessee will keep the entire Premises, including adjoining sidewalks
free of rubbish, debris, and also in such condition as the Board of Health and
Board of Fire Underwriters having authority in such matters may lawfully require
with the exception of damage caused by fire, casualty or other insurable cause.
Lessee further agrees at its sole cost and expense, to perform, fully obey and
comply with all ordinances, rules regulations and laws of all public
authorities, boards and officers, relating to the maintenance of and occupancy
of said Premises.
f. That Lessee shall remove no additions, improvements and alterations made
by Lessor or by Lessee except as herein provided, and shall not alter the
Premises or any part thereof, without in each case the consent of Lessor in
writing. Lessee shall, however, have the right, during the term of this Lease,
to remove its trade fixtures and mechanical equipment however affixed to the
realty, and Lessee covenants promptly to repair any damage caused by any such
removal; provided, however, that any such trade fixtures and mechanical
equipment, not required to be removed by Lessor pursuant to this Lease, which
shall not have been removed by Lessee on the expiration or sooner
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termination of the term of this Lease or any extended term hereof, shall be
deemed abandoned by Lessee and shall thereupon become the absolute property of
Lessor without compensation to Lessee.
Anything herein contained to the contrary notwithstanding, however, it is
agreed that the Lessor's consent shall be required for installation of
improvements, alterations, or repairs, whether or not such involve alteration to
the building structure, and that Lessor will not unreasonably withhold or delay
its consent as to the making of other installations, alterations, additions or
improvements which are reasonably required for the conduct of Lessee's business
on the Premises, provided that such installations, alterations, additions or
improvements do not adversely affect the structures upon, or the overall visual
environment of the Industrial Center of McKeesport.
g. That Lessee shall make, at its sole cost and expense, all repairs
necessary to maintain the Premises, pursuant to subparagraphs "a" through "f"
hereinabove written, and shall keep the Premises and the fixtures therein in
neat and orderly condition. If Lessee refuses or neglects to make such repairs,
or fails to diligently prosecute the same to completion, after written notice
from Lessor of the need therefore, and after a reasonable time thereafter in
which to make the same, Lessor may make such repairs at the expense of Lessee
and such expense shall be collectible as Additional Rent.
h. That a violation by Lessee, its employees or its agents of any of the
covenants above written in subparagraphs "a" through "g" shall be deemed a
default under this Lease entitling Lessor to exercise any of the remedies
provided for herein.
i. That Lessor shall not be obligated for any of such repairs to the Premises
until the expiration of a reasonable period of time after written notice from
Lessee that such repair is needed. In no event shall Lessor be obligated under
this section to repair any damage caused by any act, omission or negligence of
the Lessee or its employees, agents, invites, licensees, sub-tenants or
contractors.
j. That Lessor shall not be liable by reason of any injury to or interference
with Lessee's business arising
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from the making of any repairs, alterations, additions or improvements that are
reasonably required in or to the Premises or to any appurtenances or equipment
therein unless such inconvenience, injury, or interference shall be occasioned
by the sole negligence of Lessor, its agents, servants, and/or employees. There
shall be no abatement of rent because of such repairs, alterations, additions or
improvements, except as provided in Section 16 hereof. Lessor shall use its best
efforts with respect to repairs, alterations, additions and improvements to
avoid depriving Lessee of the use of the Premises except in case of damage by
fire or other casualty covered by Section 16.
X. Xxxxxx covenants as follows:
a. That Lessor shall make all structural repairs in, to and about the
Premises needed to keep the Premises in good and tenantable condition.
b. That Lessor shall be responsible for the removal of snow from the
driveways and parking areas of the Industrial Center of McKeesport and will salt
areas where necessary.
c. That Lessor shall be responsible for the management of all landscaped
areas comprising a part of the Industrial Center of McKeesport.
d. That Lessor will certify that the Heating and Air Conditioning has been
inspected and in good operating condition prior to Lessee's occupancy.
SECTION 9
ASSIGNMENT AND SUBLETTING
Lessee may assign this Lease or sublet all or any part of the Premises
with the prior written consent of Lessor, which consent shall not be withheld or
delayed unreasonably; provided, however, that Lessee shall remain liable for the
payment of rent hereunder and the performance of the covenants and conditions
contained herein. No consent will be required for any assignment: (1) to any
present or future wholly-owned subsidiary or parent of Steel City Products, Inc.
or (2) to any successor in interest of the entire business of Steel City
Products, Inc. as a result of merger, consolidation, purchase, assignment, or
operation of law.
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SECTION 10
RIGHT OF ENTRY
Lessor, its employees and agents, shall have the right to enter the
Premises at all reasonable business hours for the purpose of examining or
inspecting the same, showing the same to prospective purchasers, mortgagees or
tenants of the Industrial Center of McKeesport, and making such alternations,
repairs, improvements or additions to the Premises or to the Industrial Center
of McKeesport as Lessor may deem necessary or desirable. Prior to Lessor or its
employees and agents entering the Premises, Lessor shall make its best effort to
provide reasonable notice to Lessee except in the event of an emergency.
Nevertheless, if representatives of Lessee shall not be present to open and
permit entry into the Premises at any time when such entry by Lessor is
necessary or permitted hereunder, then Lessor may enter by means of a master key
(or forcibly in the event of an emergency) without liability to Lessee and
without such entry constituting an eviction of Lessee or termination of this
Lease.
SECTION 11
SURRENDER
At the expiration of this Lease or sooner termination of the term of this
Lease or any extended term hereof, Lessee shall surrender the Premises to
Lessor, together with all additions, alterations and improvements thereto, in
broom clean condition and in the same condition it was in on the date of this
Lease except for ordinary wear and tear and damage by fire, casualty or other
insurable cause for which Lessee is not obligated to make repairs under this
Lease. Lessee, however, shall remove all of its trade fixtures.
Lessee expressly waives to Lessor the benefit of Act No. 20, approved April
6, 1951, entitled "The Landlord and Tenant Act of 1951" requiring three months'
notice to vacate the Premises at the end of the term or upon forfeiture of this
Lease for breach of its conditions, and covenants and agrees to give up quiet
and peaceable possession without further notice from the Lessor or its agent.
SECTION 12
INDEMNIFICATION
Lessee hereby assumes all risk and liability, and
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covenants and agrees to indemnify and save harmless Lessor and its respective
officers, agents and employees from and against any and all liability, claims,
damages, loss and expense arising from injury to or death of persons whomsoever,
unless caused solely by the act or negligence of Lessor or any of the other
persons or entities aforesaid, on the Premises, curbs, sidewalks, entrances or
passageways adjacent to or included in the Premises or in connection with the
occupation or use thereof.
Unless caused by Lessor's sole act or sole neglect, Lessor shall not be
liable for any injury or damage to any person or to any personal property of any
such person at any time on said Premises or structure or on or in the streets,
curbs, sidewalks, entrances or passageways adjacent thereto or included therein
by reason of any action of the elements or from any cause whatsoever, including
fire, wind, explosion or electrical current and those which may arise from the
use or condition of said Premises or structure or from ice thereon, or from
steam, gases, vapor, water, rain, snow or electrical current which may leak
into, issue or flow from any part of said structure, or from the pipes, ducts,
plumbing or wiring of the same, or from any other place or quarter, or from any
other cause, during said term of this Lease.
Lessor shall indemnify and save harmless Lessee against any and all
liability, claims, damages, loss and expense sustained by Lessee, caused solely
by the act or negligence of Lessor, its officers, agents or employees.
SECTION 13
LIABILITY INSURANCE
Lessee shall keep in effect at Lessee's expense during the term of this
Lease, comprehensive general liability insurance with minimum combined single
limits of $1,000,000 for bodily injury liability and property damage liability,
and Lessor shall be named as an additional insured. Certificates of such
insurance policies shall be furnished to Lessor and such policies shall be
subject to Lessor's reasonable approval.
SECTION 14
FIRE AND CASUALTY INSURANCE
That Lessee shall not do or suffer to be done any act,
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matter or thing whereby the fire and casualty insurance carried by Lessor on the
building of which the Premises are a part shall be suspended or rated as more
hazardous than at the commencement of this Lease. In case of breach of this
covenant, Lessee agrees to pay as Additional Rent any and all increase of
premium for insurance carried by Lessor caused in any way by the actions or
occupancy of Lessee.
SECTION 15
WAIVER OF SUBROGATION
The parties hereto for themselves and their insurers hereby waive any right
of subrogation against the other party.
SECTION 16
DAMAGE OR DESTRUCTION OF LEASED PREMISES
In case the Premises shall be structurally damaged by fire or other cause
insofar that the Premises can not be reasonably used for the purposes required
by Lessee, then, at the option of the Lessor and Lessee, to be exercised by a
notice in writing sent no later than thirty (30) days after such damage, this
Lease shall cease and come to an end as of the date of such damage, and any
fixed rent for the unexpired period paid in advance beyond the date of such
damage, shall be refunded by Lessor to Lessee.
If the said structure shall be damaged to an extent as stated in the prior
paragraph, neither Lessor nor Lessee shall exercise its aforesaid option, the
Lessor, with due diligence, shall restore the structure to a condition equal to
its condition before the damage, which will permit the full enjoyment and use of
the Premises. A proportion of the fixed rent herein reserved, according to the
extent that such damage and its repair shall interfere with the full enjoyment
and use of the Premises, shall be suspended and abated from the date of such
damage until said structure shall have been so restored.
The Lessee shall be obligated to repair, restore or replace and trade
fixtures and equipment installed by Lessee which may be damaged or destroyed by
any cause.
SECTION 17
DEFAULT; REMEDIES OF LESSOR
If Lessee shall fail to pay rent or additional rent to Lessor when the same
is due and payable under the terms of
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this Lease and such default shall continue for a period of ten (10) days after
written notice thereof has been given to Lessee by Lessor, or if the Lessee
shall abandon or vacate or fail to perform any other duty or obligation imposed
upon it by this Lease and such default shall continue for a period of thirty
(30) days after written notice thereof has been given to Lessee by Lessor, or if
the Lessee shall be adjudged bankrupt, or shall make a general assignment for
the benefit of its creditors, or if a receiver of any property of Lessee in or
upon the Premises be appointed in any action, suit, or proceeding by or against
Lessee and such appointment shall not be vacated or annulled within sixty (60)
days, or if the interest of Lessee in the Premises shall be sold under execution
or other legal process, then and in any such event Lessor shall have the right
to enter upon the Premises and again have, repossess, and enjoy the same as if
this Lease had not been made, and thereupon, at Lessor's option, this Lease
shall terminate without prejudice, however, to the right of Lessor to recover
from Lessee all rent due and unpaid up to the time of such reentry.
In the event of any such default and reentry, if Lessor does not elect to
terminate this Lease, Lessor shall have the right to: relet the Premises for the
remainder of the term, for the highest rent then obtainable and to recover from
Lessee the difference between the rent reserved by this Lease and the amount
obtained through such reletting plus the costs and expenses reasonably incurred
by Lessor in such reletting.
In the event any installment of Base Rent of Additional Rent shall become
overdue after notice to Lessee for a period in excess of five (5) days, a "late
charge" in the amount of five percent (5%) per month of such overdue installment
may be charged to Lessee by Lessor for the purpose of defraying the expenses
incident to handling such delinquent payments, which late charge shall be
payable monthly on the same day of the month as installments of Base Rent and
Additional Rent, until such overdue installment is paid. This charge shall be in
addition to, and not in lieu of, any other remedy Lessor may have and is in
addition to any reasonable fees and charges of any agents or attorneys
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which Lessor is entitled to employ on any default hereunder, whether authorized
herein, or by law.
In addition to the above described late charge, at Lessor's option, any
payment required to be made by Lessee under the provisions of this Lease and not
made by Lessee when and as due shall thereupon be deemed to be due and payable
by Lessee to Lessor with interest thereon from the date when the particular
amount became due to the date of payment thereof to Lessor. The aforesaid
interest shall be equal to the fluctuating rate per annum, announced from time
to time by Mellon Bank, N.A. as its "prime rate"; said rate to change
automatically effective as of the effective date of each change in the "prime
rate".
Notwithstanding any other provisions herein contained, in the event of any
such default, Lessor, at its option, may declare the unpaid rent for the
unexpired portion of the term of this Lease to be immediately due and payable,
and Lessor may exercise any one or more of the remedies herein provided or as
otherwise may be provided by law, all of such remedies being cumulative and not
exclusive.
SECTION 18
CONFESSION OF JUDGMENT
For value received and forthwith on every default of payment of rent by
Lessee under this Lease, or on any and every breach of covenant or agreement by
Lessee under the terms of this Lease, Lessee does hereby empower any attorney of
any court of record, within the United States or elsewhere, to appear for Lessee
and, with or without declaration filed, confess judgement against Lessee, and in
favor of Lessor, its successors or assigns, as of any term, for the sum due by
reason of said default, including unpaid rent for the balance of the term, with
costs of suit and attorney's commission of 10% for collection. Said attorney, so
empowered, shall also forthwith issue writ or writs of execution hereon, with
release of all errors and without stay of execution. Exemption of any and all
property from levy and sale by virtue of any exemption law now in force or which
may be hereafter passed is also expressly waived by Lessee.
Lessor agrees that it will not confess judgement against Lessee if such
default or breach is cured within the
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applicable cure periods set forth in Section 17.
In case of violation of any of the covenants or agreements in this Lease by
Lessee, the Lessee's failure to cure the same within the grace periods herein
provided, shall authorize and empower the aforementioned attorney, either in
addition to or without such judgement for the amount due according to the terms
of this Lease, to appear for Lessee and confess judgment forthwith against
Lessee, and in favor of Lessor, in an amicable action of ejectment for the
Premises above described, with all the conditions, fees, releases, waivers of
stay of execution and waiver of exemption to accompany said confession of
judgment for said sum or sums due. Lessee further, at option of Lessor,
authorizes the entry of such action, confession of judgment therein, and
immediate issuing of a writ of possession without leave of court. Lessor may
then, without notice, re-enter and expel Lessee from the Premises, and also any
person holding under it, and in each case, this Lease, or a true copy thereof
shall be a sufficient warrant of any person.
Such authority shall not be exhausted by one exercise thereof, but judgment
may be confessed as aforesaid from time to time as often as any of said rent or
other charges reserved as rent shall fall due or be in arrears beyond any
applicable grace periods, or so long as Lessee is in violation of any of the
other terms of this Lease beyond any applicable grace periods, and such powers
may be exercised as well after the expiration of the original term and/or during
any extension or renewal of this Lease.
SECTION 19
EMINENT DOMAIN
In the event any material part of the building which forms a part of the
Premises is taken by paramount authority or in any way appropriated by the
exercise of the right of eminent domain, the rent herein set forth shall be
abated and liability therefore cease as of the date of such taking or
appropriation. This Lease shall terminate as of said date, and any prepaid rent
shall be returned to Lessee. The entire award for the Premises shall be payable
to Lessor, and Lessee shall not be entitled to any damages for the value of the
unexpired Lease term. However, Lessee shall be
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entitled to claim damages for its trade fixtures and relocation expenses.
SECTION 20
SUBORDINATION OF LEASE
This Lease is and shall remain subordinate and subject to any mortgage or
mortgages which are now or at any time shall be placed upon the freehold
interest of Lessor or any part thereof or to any assignment of the interest of
Lessor in this Lease. Lessee agrees to execute and deliver to Lessor, without
cost, any instrument which may be deemed necessary by Lessor to further effect
the subordination of this Lease to any such mortgage, mortgages or assignments,
except that such instrument shall provide that, so long as Lessee is not in
default hereunder, its possession will not be disturbed nor will its leasehold
interest be divested.
In the event of a foreclosure of any such mortgage, Lessee hereby agrees
that this Lease shall not terminate by reason thereof, and Lessee further agrees
to attorn to and to recognize as Lessor hereunder the mortgagee, or any
purchaser at a foreclosure sale or any purchaser of the Industrial Center of
McKeesport and improvements in lieu thereof, for the balance of the term of this
Lease, subject to all the terms and provisions hereof provided, however, any
such mortgagee or purchaser, which shall become the Lessor hereunder shall not
be:
(a) liable for any act or omission of Lessor,
(b) subject to any offsets or defenses which Lessee might have against
Lessor,
(c) bound by any rent or additional rent which Lessee may have paid to
Lessor for more than the current month, or
(d) bound by any amendment or modifications of this Lease without its
consent.
SECTION 21
ESTOPPEL CERTIFICATE
Lessee shall, at any time and from time to time, within twenty (20) days
following written request from Lessor, execute, acknowledge and deliver to
Lessor a written statement certifying that this Lease is in full force and
effect and unmodified (or, if modified, stating the nature of such
modification), certifying the date to which the rent
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reserved hereunder has been paid, and certifying that there are not, to Lessee's
knowledge, any uncured defaults on the part of Lessor hereunder, or specifying
such defaults if any are claimed. Any such statement may be relied upon by any
prospective purchaser or mortgagee of all or any part of the Industrial Center
of McKeesport or the real property on which the Industrial Center of McKeesport
is located. Lessee's failure to deliver such statement within said twenty-day
period shall be conclusive upon Lessee that this Lease is in full force and
effect and unmodified, and that there are no uncured defaults in Lessor's
performance hereunder.
SECTION 22
FORCE MAJEURE
In the event that either party shall be delayed or hindered in, or
prevented from, the performance of any work, service or other acts required
under this Lease to be performed by the party and such delay or hindrance is due
to strikes, lockouts, acts of God, governmental restrictions, enemy act, civil
commotion, fire or other casualty, or other causes of a like nature beyond the
control of the party so delayed or hindered, then performance of such work,
service or other act shall be excused for a period of such delay and the period
for the performance of such work, service or other act shall be extended for a
period equivalent to the period of such delay. In no event shall such delay
constitute a termination of this Lease. The provisions of this paragraph shall
not operate to excuse Lessee from the prompt payment of rent, including such pro
rata payments of rent as may be due under Section 3 hereof, after the
commencement of the term. Written notice of any such delays, other than
temporary or emergency interruptions, shall be given to the other party as well
as written notice of the cessation of the same.
SECTION 23
RULES AND REGULATIONS
Lessee will comply with the following rules and regulations covering the
use of the Premises and will at all times observe, perform and abide by all
reasonable rules and regulations from time to time promulgated by Lessor for the
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common use of the Industrial Center of McKeesport and the safety, care and
cleanliness of the Premises:
(i) That it will not obstruct the use of the common areas including the
sidewalks and roadways.
(ii) That it will use the parking areas on the Premises only for visitor,
executive and employee parking;
(iii) That nothing shall be placed by the Lessee or its employees on the
outside of the Building or on the windows, window xxxxx or projections; and
(iv) That Lessee for itself, its successors, assigns, employees and agents,
hereby agrees that it will refrain from going onto the roof of the building for
any purpose other than maintenance with the prior approval of Lessor, which the
Premises are a part or from making any modifications including penetration to
the roof surface and placing material or installations on the roof without the
prior written consent of Lessor.
Should any difficulties develop with respect to the roof, Lessor shall be
promptly notified.
SECTION 24
QUIET ENJOYMENT
If Lessee shall pay the rent and perform all its other obligations
hereunder, Lessor covenants that Lessee shall, during the term hereof, enjoy
quiet and peaceable possession of the Premises.
SECTION 25
ABANDONMENT OF PREMISES
If the Building at any time be abandoned, Lessor may enter by force, without
liability or prosecution or action therefor, and may distrain for rent and also
relet the Premises as agent of Lessee for any unexpired portion of the term and
receive the rent therefor and apply it on this Lease.
SECTION 26
NON-WAIVER BY LESSOR
A determining of the term, or the receipt of rent after default, or after
judgment or after execution, shall not
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deprive Lessor of other actions against Lessee for possession, or for rent, or
for damages to which it is entitled.
SECTION 27
NOTICES
Any notice or demand required by the provisions of this Lease to be given to
Lessor shall be deemed to have been given adequately if sent by Certified Mail
to Lessor at the following address: 0xx Xxxxx - 000 Xxxx Xxxxxx, Xxxxxxxxxx, XX
00000-0000.
Any notice or demand required by the provisions of this Lease to be given to
Lessee shall be deemed to have been given adequately if sent by Certified Mail
to Lessee at the following addresses: Steel City Products, Inc., 000 Xxxxxx
Xxxxxx, XxXxxxxxxx, XX 00000, and Oakhurst Company Inc., 0000 Xxxxxxxx Xxxxx,
Xxxxx Xxxxxxx, Xxxxx, 00000, attn:
President.
Either party shall have the right to change its address by giving to the
other party fifteen (15) days' advance written notice of its intention to make
such change and of the substituted address at which any notice or demand may be
directed to it.
SECTION 28
SUCCESSORS AND ASSIGNS
The respective rights and obligations provided in this Lease shall bind and
shall inure to the benefit of the parties hereto, their legal representative,
heirs, successors and assigns; provided, however that no rights shall inure to
the benefit of any successor of Lessee, unless Lessor's written consent for the
transfer to such successor has first been obtained as provided in Section 9.
SECTION 29
ENVIRONMENTAL MATTERS
(A) For purposes of this Lease:
(i) As used herein, the term "Environmental Laws" shall mean any and all
federal, state, or local laws, statutes, rules, regulations, ordinances,
interstate compacts, or judicial or administrative decrees, orders, decisions,
or permits relating to emissions, discharges, releases or threatened releases of
pollutants, contaminants or Hazardous Substances into the environment
(including, without
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limitation, ambient air, surface water, ground water or subsurface strata); or
otherwise relating to the use, storage, treatment, transportation, manufacture,
refinement, handling, production or disposal of such pollutants, contaminants or
Hazardous Substances, including, without limitation, the following statutes, as
amended and judicially and administratively interpreted through the date hereof,
and all regulations promulgated thereunder as of such date, including without
limitation all comparable statutes, regulations, and interpretations by the
Commonwealth of Pennsylvania: the Comprehensive Environmental Response,
Compensation and Liability Act, 42 USC Section 9601 et seq. ("CERCLA"); the
Clean Air Act, 42 USC Section 7401 et seq.; the Resource Conservation and
Recovery Act, 42 USC Section 4901 et seq. ("RCRA"); the Safe Drinking Water Act,
42 USC Section 300f et seq.; the Toxic Substance Control Act, 15 USC Section
2601 et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et seq.; the National
Environmental Policy Act 42 U.S.C. Section 4321 et seq.; the Hazardous
Substances Cleanup Act, 35 Pa. C.S.A. Section 6020.101 et seq. ("HSCA"); the
Clean Streams Law, 35 Pa. C.S.A. Section 691.1 et seq.; the Solid Waste
Management Act, 35 Pa. C.S.A. Section 6018.101 et seq.; and the Pennsylvania
Storage Tank and Spill Prevention Act, 35 PS Section 6021.101 et seq; and
(ii) As used herein, the term "Hazardous Substance" shall mean any and all
elements, compounds, chemical mixtures, contaminants, pollutants, or other
substances identified as "Hazardous Substances" under CERCLA or HSCA and all
comparable statutes and regulations, and any used or unused petroleum products.
(B) Lessee shall:
(i) Not cause or permit any Hazardous Substance to be placed, held,
located, released, spilled, transported or disposed of on, under, at or from the
Premises or any real estate contiguous thereto in contravention of any
Environmental Laws;
(ii) Except with respect to matters existing prior to the Commencement Date
or occuring after Lessee no longer occupies the Premises, contain at or remove
from the Premises or perform any other remedial action regarding any Hazardous
Substance, at Lessee's sole cost and expense, if, as and when such containment,
removal or other remedial
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action is required under any Legal Requirement and, whether or not so required,
perform any containment removal or remediation of any kind of any Hazardous
Substance in compliance with all Legal Requirements;
(iii) Not permit any subtenant or occupant of the Premises to engage in any
activity that could result in any liability, cost or expense to any such
subtenant, or occupant, lessee, Lessor or any other owner of the Premises or any
portion thereof or the creation of a lien on the Premises under any
Environmental Laws or under any similar applicable law or regulation;
(iv) Provide Lessor with written notice (and a copy as may be applicable)
of any of the following within ten (10) days thereof; (a) Lessee's obtaining
actual knowledge or notice of any kind of the presence, or any actual or
threatened release, of any Hazardous Substance on, under, at or from the
Premises not authorized or permitted under Environmental Laws; (b) Lessee's
receipt or submission, or Lessee's obtaining actual knowledge or notice of any
kind, of any report, citation, notice or other communication from or to any
federal, state or local government or quasigovernmental authority regarding any
Hazardous Substance in any way materially adversely affecting the Premises; or
(c) Lessee's obtaining actual knowledge or notice of any kind of the incurrence
of any cost or expense by any federal, state or local governmental or
quasigovernmental authority or any private party in connection with the
assessment, monitoring, containment, removal or remediation of any kind of any
Hazardous Substance on, under, at or from the Premises, or of the recording of
any lien on the Premises in connection with any such action or Hazardous
Substance on, under or at the Premises; and
(v) Defend all actions against the Lessor and pay, protect, indemnify and
save harmless the Lessor from and against any and all liabilities, losses,
damages, costs, expenses (including, without limitation, reasonable attorneys'
fees and expenses), causes of action, suits, claims, demands or judgments of any
nature arising from Lessee's failure to comply with this Section 29. The
indemnity contained in this Section 29 shall survive the
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expiration or earlier termination of this Lease with respect to the obligations
and liabilities of Lessee hereunder, actual or contingent, which have arisen on
or prior to such expiration or earlier termination.
(vi) Pursuant to the Commonwealth of Pennsylvania Department of
Environmental Resources, ("PA DER"), industrial and commercial complexes and
individual businesses are required to develop preventative plans in conformance
with Chapter 75 of the PA DER regulations for intervention in the event of
accidental pollution of air, land or water. Said plans are referred to as
Preparedness, Prevention and Contingency Plans (PPC).
In the event that Lessee is required to submit to and obtain approval from
PA DER for Lessee's PPC, Lessee shall also submit to Lessor a copy of both its
PPC (and any revisions to same) and the PA DER written notice to Lessee of PA
DER's approval of said PPC.
By receipt of Lessee's PPC, Lessor assumes no responsibility as to its
accuracy, correctness, nor implementation.
SECTION 30
GOVERNING LAW
This Lease shall be construed, governed and enforced in accordance with
the laws of the Commonwealth of Pennsylvania.
SECTION 31
SEVERABILITY
If any provisions of this Lease shall be held to be invalid, void or
unenforceable, the remaining provisions hereof shall in no way be affected or
impaired and such remaining provisions shall remain in full force and effect.
SECTION 32
GENDER
As used in this Lease, the word "person" shall mean and include, where
appropriate, an individual, corporation, partnership or other entity; the plural
shall be substituted for the singular, and the singular for the plural, where
appropriate;and words of any gender shall mean to include any other gender.
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SECTION 33
OPTION TO RENEW
Lessee shall have the right and option to renew this Lease for one (1)
additional term of five(5) years following the termination of the term hereof,
provided: (i) that this Lease is in full force and effect immediately prior to
the date of the commencement of such renewal term; (ii) that the Lessee is not
in default under any of the provisions herein; and (iii) that the Lessee is in
full occupancy of the Premises for its own use and intends to continue such
occupancy. The term of the option term shall commence January 1, 2003 and expire
on December 31, 2008. The option term shall be exercised by Lessee serving on
Lessor written notice to that effect not later than June 30, 2002. Said renewal
shall be upon the same terms, covenants, conditions and limitations as in this
Lease provided, except that during the option term, the monthly rental shall be
the amount of the last month's rent due in the initial term plus five (5%)
percent. The notice of election to take the renewal term shall be irrevocable
and shall constitute an agreement between parties for a renewal of this Lease as
herein stated.
SECTION 34
ENTIRE AGREEMENT
There are no agreements, representations or understanding between the
parties other than those expressed herein. No modification of the terms hereof
shall be binding unless set forth in a writing signed by both parties hereto. A
one-time real estate brokerage commission in the amount of $66,719.00 is payable
by Lessor to Xxxx-Xxxxxx and Associates. No further real estate commissions will
be payable for any lease extensions.
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WITNESS the due execution hereof as of the day and year first above
written.
Attest: REGIONAL INDUSTRIAL DEVELOPMENT
/s/ Xxxxxxx Poreniski CORPORATION OF SOUTHWESTERN
---------------------------------- PENNSYLVANIA
Secretary
(Corporate Seal)
BY /s/ Xxxxx Xxxxxx Xxxxxxxx
--------------------------------
President
Attest: STEEL CITY PRODUCTS, INC.
/s/ Xxxxxxx Xxxxx BY: /s/ Xxxxxxxx X. Xxxxx
---------------------------------- -------------------------------
(Corporate Seal) President, C.O.O.
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