LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") made as of the 1st day of January,
2000, by and between Sterling Realty Trust, a Trust made under a Declaration of
Trust dated November 24, 1950, and recorded in Hampden County Registry of Deeds
as Document No. 26882, in Book 2088, Page 123 (the "Landlord"), and Mestek,
Inc., and its successors and assigns (the "Tenant") a Pennsylvania corporation,
with offices at 000 Xxxxx Xxx Xxxxxx, Xxxxxxxxx, XX 00000.
WITNESSETH
THAT FOR AND IN CONSIDERATION of the mutual covenants and agreements
herein contained, and intending to be legally bound, the parties hereto do
hereby covenant and agree as follows:
1. Lease of Premises. Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord the premises commonly known as 000 Xxxxx Xxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx, 00000, consisting of offices in a two story structure and a
manufacturing plant totaling 113,027 square feet, and 000 Xxxxx Xxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx, 00000, consisting of a storage building and parking
lot, together with all buildings, structures, and other improvements thereon and
all rights, easements, rights-of-way, and appurtenances thereto (collectively,
the "Premises"), which is situated on those certain parcels of land described as
Parcel 1 and Parcel 2 respectively in Exhibit A to this Lease (the "Property").
2. Term
2.1 Term. The term of the Lease shall be for a period of five (5) years
(the "Initial Term") beginning on January 1, 2000 (the "Commencement Date") and
ending on December 31, 2005 (the "Termination Date") at 12:00 a.m., subject to
(a) earlier termination as provided in this Lease; or (b) the renewal of this
Lease at the option of the Tenant for an additional five (5) year period
("Extended Term") upon three (3) months advance notice to Landlord, at an annual
rent equal to the amounts provided for in Section 3 hereof. The Initial Term and
the Extended Term shall be collectively referred to as the "Term".
2.2 Termination.
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2.2.1 This Lease shall terminate at the end of the Term
without the necessity of any notice from either Landlord or Tenant to terminate
the same.
2.2.2 This Lease may terminate at the election of Landlord in
the event of any default of Tenant as described in Article 11 below.
2.2.3 Upon the expiration or sooner termination of the Term,
Tenant shall quietly and peacefully surrender the Premises in good condition,
reasonable wear and tear excepted, to Landlord. All appurtenances, fixtures and
leasehold improvements installed in the Premises, whether by Landlord or Tenant,
and whether at Landlord's expense or Tenant's expense shall be and remain the
property of Landlord. All non-fixture personal property owned by Tenant and/or
placed in the Premises shall remain the property of Tenant and shall be removed
prior to the end of the Term or such other time as Tenant may lose the right of
possession of the Premises. Any property of Tenant remaining in the Premises at
the expiration or other termination of the Term, or at such other time as Tenant
may lose the right of possession of the Premises, shall be deemed abandoned by
Tenant and, at Landlord's option, shall become the property of Landlord.
Landlord may remove such property and sell or otherwise dispose of the same in
any manner without liability or obligation to account to Tenant therefore.
Tenant shall pay Landlord on demand for all costs of Landlord in removing,
storing and disposing of any such property.
3. Rent. Tenant shall pay to the Landlord at 00 Xxxxx Xxxxxxx, Xxxxxxxxx, XX
00000 or such other address as Landlord may designate, an annual rent (the
"Annual Rent") of Two Hundred Eight-Two Thousand Dollars and No/100
($282,000.00), payable in monthly installments of Twenty-Three Thousand Dollars
and No/100 ($23,500.00), in advance of the first day of each month of the Term,
without any deduction, counterclaim, abatement or set-off whatsoever (except as
may be expressly authorized by the terms of this Lease).
3.1 If Tenant shall elect to extend the term of this Lease, as provided in
Section 2.1(b) hereof, then the Annual Rent payable during the Extended Term
shall be adjusted (the "Adjusted Annual Rent") as follows:
3.1.1 The Consumer Price Index for All Urban Consumers (CPI-U) as published on
the Commencement Date (the "Base Index") shall be compared to such index as
published on the Termination Date (the "Current Index") and the change in the
Consumer Price Index shall be expressed as a percentage where a number equal to
the Current Index minus the Base Index shall be the numerator, and the Base
Index shall be the denominator (the "Percentage Increase"); provided however
that the Percentage Increase shall not be less than zero.
3.1.2 The Adjusted Annual Rent shall equal the Annual Rent plus the product of
the Annual Rent multiplied by one-half of the Percentage Increase; provided
however that if the Percentage Increase is equal to zero percent (0.00%), then
the Adjusted Annual Rent shall equal $282,000.00. For purposes of illustration
only; if the Base Index is equal to 166.7, and assuming the Current Index is 200
as of December 31, 2005, then the Percentage Increase would equal 19.97% (200 -
166.7 /166.7), and the Adjusted Annual Rent would equal $310,157.70 ($282,000 +
($282,000 * (19.97%) 2). All Annual Rent and Adjusted Annual Rent may be
collectively referred to herein as the "Rent".
4. Additional Rent. In addition to the Rent payable pursuant to Section 3
of this Lease, Tenant shall pay as additional rent (the "Additional Rent")
the following:
4.1 Real Estate Taxes. Tenant shall pay in each calendar year of the
Lease (the "Lease Year"), as Additional Rent, all taxes, assessments and charges
whatsoever, ordinary or extraordinary, general or special, foreseen or
unforeseen, levied upon or with respect to the Premises and the Property or any
improvements, fixtures and equipment of Landlord or Tenant used in the use,
occupation or operation thereof (the "Real Estate Taxes"). Real Estate Taxes
shall not include transfer, inheritance or capital stock taxes or income taxes
measured by the net income of Landlord from all sources, unless any of such
taxes is levied or assessed against Landlord as a substitute in whole or in part
for or as an addition to, in whole or in part, any other tax that would
otherwise constitute a Real Estate Tax. Real Estate Taxes shall also include
reasonable legal fees, costs and disbursements incurred in connection with
proceedings and activities to contest, determine, reduce or negotiate the amount
or payment of Real Estate Taxes. If Tenant is in possession of the Premises for
a portion of any calendar year during the Term hereof, Tenant shall pay a pro
rata share of the Real Estate Taxes for such calendar year.
4.2 Insurance. At all times during the Term of this Lease, Tenant shall
secure, keep in force and pay for directly as Additional Rent, at Tenant's sole
expense, the following insurance:
4.2.1 Property Insurance. Tenant shall, at Tenant's sole
expense, obtain and keep in force during the Term of this Lease a policy of fire
and extended coverage insurance with respect to the Premises insuring Tenant,
and as additional insured, Landlord, against any property damage or casualty
loss thereto, up to the fair market value of the Premises, which is deemed for
the first Lease Year to be an amount of not less than One Million Seven Hundred
Thousand Dollars ($1,700,000.00). All such policies shall be written as primary
policies not contributing with and not only in excess of any coverage which
Landlord may carry.
4.2.2 Liability Insurance. Tenant shall, at Tenant's sole
expense, obtain and keep in force during the term of this Lease a policy of
comprehensive public liability insurance in the amount of not less than One
Million Dollars ($1,000,000.00) insuring Tenant and, as additional insured,
Landlord against any liability arising out of the ownership, use, occupancy, or
maintenance of the Premises and all areas appurtenant thereto. All such policies
shall be written as primary policies not contributing with and not only in
excess of any coverage which Landlord may carry.
4.2.3 Landlord's Approval. The company or companies writing
any insurance which Tenant is required to take out and maintain pursuant to this
Lease, as well as the form of such insurance, shall at all times be subject to
the Landlord's approval, and any such company or companies shall be licensed to
do business in Massachusetts. Each policy evidencing such insurance shall (a)
name Landlord and any other of its designees as additional insured (except with
respect to Tenant's own personal property), (b) shall contain a provision by
which the insured agrees that such policy shall not be canceled except after
thirty (30) days written notice to Landlord and its designee, and (c) shall
provide that coverage shall not be limited or denied by reason of the provisions
in this Lease, including those relating to limitations of liability and waivers
of subrogation and other rights. For all insurance policies procured by Tenant,
a certificate of such insurance shall at all times be deposited with Landlord.
If Tenant shall fail to perform any of its obligations under this Article 4,
then in addition to any other remedies it may have, Landlord may, but is not
required to, perform the same, and the cost thereof, together with interest
thereon at the then current Fleet Bank prime interest rate, shall be deemed
Additional Rent and shall be payable upon Landlord's demand.
4.3 Utilities. At all times during the Term of this Lease, Tenant shall
pay for directly as Additional Rent all utilities, including, but without
limitation, water, gas, heat, light, power, electricity, fuel, sewer charges,
telephone service, and any and all other services and utilities supplied to the
Premises together with any taxes thereon (collectively the "Utilities"). Tenant
shall notify the utility companies that the Utilities are to be placed in the
name of Tenant and all bills therefore are to be sent directly to Tenant. In
addition, Tenant shall pay the costs of all deposits required by utility
companies for the Utilities.
5. Improvements and Alterations.
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5.1 Improvements by Tenant. Tenant shall not make any alterations,
renovations or improvements or cause to be installed any fixtures, exterior
signs, floor covering, interior or exterior lighting or plumbing fixtures,
shades or awnings or any other installations in, on, or to the Premises or any
part thereof (including, without limitation, any structural alterations, or any
cutting or drilling into any part of the Premises or any securing of any
fixture, apparatus or equipment of any kind to any part of the Premises)
("Tenant Improvements") unless and until Tenant shall have caused plans and
specifications therefore to have been prepared, at Tenant's expense, by an
architect or other duly qualified person and shall have obtained Landlord's
written approval thereof.
5.2 Mechanic's Liens. Tenant shall keep the Premises free from any
liens arising out of any work or service performed or material furnished by or
for Tenant or any person or entity claiming through or under Tenant whether for
the Tenant Improvements or otherwise. Notwithstanding the foregoing, if any
mechanic's or other lien shall be filed against the Premises, purporting to be
for labor, services or material furnished or to be furnished at the request of
Tenant, then Tenant 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 Tenant shall fail to cause such lien to be discharged of record
within such ten (10) day period, Landlord, in addition to any other remedies it
may have, 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 Tenant shall, upon demand, reimburse Landlord for all
amounts paid and costs incurred, including attorneys' fees, in having such lien
discharged of record.
5.3 Contractor's Insurance. Prior to engaging any contractor, Tenant
shall require any contractor performing work on the Premises at Tenant's request
or on Tenant's behalf to carry and maintain such insurance in such amounts of
coverage as Landlord may require from time to time, including contractor's
liability coverage and workers' compensation insurance and to name Landlord as
an additional insured upon the contractor's insurance policy for the terms and
purpose of the work upon the Premises.
6. Use of Premises. Tenant's use and occupancy of the Premises shall be
for the purpose of office work and engineering, testing, manufacturing and
shipment of HVAC equipment and all uses related thereto. Tenant shall not use
or permit the Premises to be used for any other purpose without the prior
written consent of Landlord.
6.1 Prohibited Uses. Tenant shall not use or allow the Premises to be
used for any improper, immoral, unlawful or objectionable purpose, nor shall
Tenant cause, maintain or permit any nuisance in, on or about the Premises.
Tenant shall not commit or allow to be committed any material waste in or upon
the Premises. Tenant shall not cause or permit any hazardous or toxic substance,
material or waste including without limitation any oil, pollutant, contaminant,
hazardous waste, asbestos, or other hazardous substance, as such term or similar
terms are now defined, used or understood in or under any federal, state, local
or other governmental statute, rule, regulation, ordinance or order which
relates in any way to the protection of the environment (the "Environmental
Laws") to be used, stored, released, dumped or disposed of upon the Premises
except in full compliance with and as otherwise allowed by the Environmental
Laws.
6.2 Compliance with Law. Tenant shall not use or permit the use of the
Premises in any way in conflict with any law or governmental rule, regulation,
order or ordinance. Tenant shall, at Tenant's sole cost, promptly comply in all
material respects with all such laws and governmental rules, regulations, orders
and ordinances and with the requirements of any board of underwriters or other
similar bodies now or hereafter constituted relating to the condition, use or
occupancy of the Premises whether or not expressly ordered to do so by the
applicable governmental authority.
7. Maintenance and Repairs. Responsibility for maintenance and repairs
shall be allocated between Landlord and Tenant as follows:
7.1 Tenant's Obligations. By taking possession of the Premises, Tenant
shall be deemed to have accepted the Premises "as is", in good condition and
repair. Tenant shall, at Tenant's sole cost and expense, keep the Premises and
the Property and each and every part thereof in an orderly and sanitary
condition, well-maintained and in good repair and appearance (except as
hereinafter provided with respect to Landlord's obligations), including without
limitation, the maintenance, replacement, painting and repair of any doors, door
frames, windows, window casements, floors and floor coverings, walls and wall
surfaces and coverings, plumbing, pipes, electrical service, including panels,
boxes, wiring and conduits, the heating and air conditioning systems, and all
other mechanical equipment parts and systems whether interior or exterior.
Tenant shall, upon the expiration or sooner termination of this Lease, surrender
the Premises to Landlord in good condition, broom clean, ordinary wear and tear
excepted. Any damage to property or injury sustained by any person because of
mechanical, electrical, plumbing or any other equipment or installations, whose
maintenance and repair shall be the responsibility of Tenant, shall be the
obligation of and paid for by Tenant. Tenant shall indemnify and hold Landlord
harmless from and against all claims, actions, damages and liability in
connection with Tenant's obligations under this Article 7, including, but not
limited to, attorneys' and other professional fees, and any other costs and
expenses which Landlord might reasonably incur. Any damage to adjacent premises
caused by Tenant's use of the Premises shall be repaired at the sole cost and
expense of Tenant.
7.2 Landlord's Obligations. Upon receipt of written notice of the need
for the same, Landlord shall, at Landlord's expense, repair and maintain the
structural portions of the Premises, which include the foundation, exterior
walls, structural members and roof. In the event such maintenance and repairs
are necessitated in whole or in part by the acts, neglect, fault, or omission of
any duty by Tenant, Tenant's agents, servants, employees, or invitees, or any
damage caused by breaking and entering, Tenant shall pay to Landlord the entire
cost of such maintenance and repairs. Except as otherwise provided in this
Section 7.2, there shall be no abatement of rent and no liability of Landlord by
reason of any injury to or interference with Tenant's business arising from the
making of any repairs, alterations, or improvements in or to any portion of the
Premises or in or to fixtures, appurtenances, and equipment. Tenant waives the
right to make repairs that are Landlord's obligation under this Lease at
Landlord's expense under any law, statute, or ordinance now or hereafter in
effect. Landlord shall have no responsibility for the maintenance, repair or
replacement of anything which is Tenant's obligation as set forth in Section
7.1.
8. Hold Harmless. To the extent permitted by law, and except to the extent of
Landlord's acts or omissions for which Landlord is solely negligent, Tenant
shall indemnify and hold Landlord harmless from and against any and all claims
arising from, in connection with or related to (a) Tenant's use of the Premises,
(b) the conduct of Tenant's business, (c) any activity, work, or other things,
done, permitted, or suffered by Tenant in or about the Premises, (d) any breach
or default in the performance of any obligation on Tenant's part to be performed
under the terms of this Lease, (e) any act or negligence of Tenant or any
officer, agent, employee, guest, or invitee of Tenant and (f) all costs
(including attorneys' fees) and liabilities incurred in or about the defense of
any such claim or any action or proceeding brought thereon. In any action or
proceeding brought against Landlord by reason of any such claim described
herein, Tenant, upon notice from Landlord, shall defend the same at Tenant's
sole expense conferring from time to time with Landlord. To the extent permitted
by law, Tenant hereby assumes all risk of damage to property or injury to
persons of whatever status in, upon, or about the Premises from any cause other
than the sole negligence of Landlord. Landlord or Landlord's agents shall not be
liable for any loss or damage to persons or property resulting from fire,
explosion, falling plaster, steam, gas, electricity, water, or rain which may
leak from any part of the building, upon the Premises or from the pipes,
appliances, heating and air conditioning system or plumbing works therein or
from the road, street, or subsurface, or from any other place resulting from
dampness, or from any other cause whatsoever, unless caused by or due to the
sole negligence of Landlord or Landlord's agents. Tenant shall give prompt
notice to Landlord in case of casualty or accidents upon the Premises.
9. Entry by Landlord. At any and all reasonable times during regular business
hours, upon one days' prior notice to Tenant, Landlord reserves and shall have
the right to enter the Premises to inspect the same a reasonable number of
times, to submit the Premises to prospective purchasers or tenants, to repair
the Premises and any portion of the building that Landlord may deem necessary or
desirable, without abatement of rent, and may for that purpose erect scaffolding
and other necessary structures where reasonably required by the character of the
work to be performed, using best efforts to avoid blocking the entrance to the
Premises and providing that the business of Tenant shall not be interfered with
unreasonably. Tenant hereby waives any claim for damages or for any injury or
inconvenience to or interference with Tenant's business, and any loss of
occupancy to quiet enjoyment of the Premises.
10. Assignment and Subletting. Tenant shall not either voluntarily or by
operation of law assign, transfer, mortgage, pledge, hypothecate, or encumber
this Lease or any interest therein and shall not sublet the Premises or any part
thereof or any right or privilege appurtenant thereto or allow any person (the
employees, agents, servants, and invitees of Tenant excepted) to occupy or use
the Premises or any portion thereof without the prior written consent of
Landlord which shall not be unreasonably withheld. Any such assignment or
subletting without such consent shall be voidable by Landlord and may constitute
a default under the terms of this Lease. It is understood and agreed that
Landlord may fully assign or encumber Landlord's interest in this Lease as
Landlord may determine in its sole and absolute discretion. Landlord may assign
or encumber the Rent herein provided to any person, partnership, corporation, or
bank, and Tenant agrees when notified in writing by the assignee of such
assignment to make the rental payments to assignee under the terms of said
assignment.
11. Tenant's Default. The occurrence of any one or more of the following
events shall constitute an event of default and breach of this Lease by Tenant:
11.1 Abandonment. Tenant vacates or abandons the Premises for a continuous
period in excess of five (5) business days.
11.2 Failure to Pay Obligations. Tenant fails to make any payment of the Rent,
the Additional Rent or any other payment required to be made by Tenant
hereunder, as and when due, where such failure shall continue for a period of
ten (10) business days after written notice thereof by Landlord to Tenant.
11.3 Failure to Observe Other Covenants. Tenant fails to observe or perform any
of the covenants, conditions, or provisions of this Lease to be observed or
performed by Tenant, other than described in Section 11.2 herein, where such
failure shall continue for a period of thirty (30) days after written notice
thereof by Landlord to Tenant; provided, however, that if the nature of Tenant's
default is such that more than thirty (30) days are reasonably required for cure
of such condition, then Tenant shall not be deemed to be in default if Tenant
commences such cure within said thirty (30) days and thereafter diligently
prosecutes such cure to completion.
12. Remedies on Default. In the event of any default or breach by Tenant,
Landlord may, at any time thereafter with or without notice or demand and
without limiting Landlord in the exercise of a right or remedy which Landlord
may have by reason of such default or breach, exercise any of the following
remedies:
12.1 Termination of Possession. Landlord may terminate Tenant's right to
possession of the Premises by written notice to Tenant or any other lawful
means, terminate this Lease by written notice to Tenant, revoke Tenant's right
to any free rent or other lease concessions and recover the value of any such
concessions made, re-enter and take possession of the Premises and Tenant shall
immediately surrender possession of the Premises to Landlord. In such event,
Landlord shall be entitled to recover from Tenant all damages incurred by
Landlord by reason of Tenant's default, including without limitation, all unpaid
Rent, Additional Rent and other obligations of Tenant under this Lease including
without limitation, accrued interest at the then current Fleet Bank prime
interest rate, and late charges thereon, the cost of recovering possession of
the Premises, the expenses of reletting, and any other costs or damages arising
out of Tenant's default, including without limitation the costs of removing
persons and property from the Premises, the costs of repairing or altering the
Premises for reletting, brokers' commissions, and legal costs including
attorneys' fees whether suit is brought or not. Notwithstanding any termination
of this Lease, re-entry or reletting of the Premises, the liability of Tenant
for the Rent, the Additional Rent and other charges and adjustments for the
balance of the Term shall not be extinguished and Tenant shall pay and Landlord
may recover from Tenant at the time of termination, re-entry, or reletting, the
amount of such rents reserved in this Lease for the balance of the Term (even if
in excess of the then reasonable rental value of the Premises or any part
thereof) without first terminating Tenant's right to possession pursuant to this
Lease. Landlord reserves the right, at any time thereafter, to elect to
terminate Tenant's right to possession to the Premises for the default that
originally resulted in the reletting.
12.2 Enforcement of Lease. Landlord may maintain Tenant's right to possession,
in which case this Lease shall continue in effect whether or not Tenant shall
have abandoned the Premises. In such event, Landlord shall be entitled to
enforce all of Landlord's rights and remedies under this Lease, including the
right to recover the Rent, the Additional Rent, other obligations of Tenant
under this Lease, and any other charges, interest and adjustments as may become
due hereunder. Landlord's failure or inability to relet the Premises or any part
thereof shall not reduce or restrict or in any way affect Landlord's right to
recover from Tenant all such rent and other sums as the same become due, and,
despite such failure or inability to so relet the Premises or any part thereof.
12.3 Other Remedies. Landlord may pursue any other remedy now or hereafter
available to Landlord under the laws or judicial decisions of the Commonwealth
of Massachusetts, in addition to the foregoing. It is understood and agreed that
Landlord's remedies hereunder are cumulative, and the exercise of any right or
remedy shall not constitute a waiver, merger or extinguishment of any other
right or remedy.
12.4 Removal of Personal Property. In the event of a retaking of possession of
the Premises by Landlord, Tenant shall remove all personal property located
thereon and, upon failure to do so upon demand of Landlord, Landlord may remove
and store the same in any place selected by Landlord, including without
limitation a public warehouse, at the expense and risk of Tenant. If Tenant
shall fail to pay the cost of storing any such property after it has been stored
for a period of thirty (30) days of more, Landlord may sell any or all of such
personal property at a public or private sale or auction and shall apply the
proceeds of such sale first to the cost of such sale, secondly to the payment of
the charges for storage, if any, and thirdly to the payment of any other sums of
money which may be due from Tenant to Landlord under the terms of this Lease,
and the balance, if any, to Tenant. Tenant hereby waives all claims for damages
that may be caused by Landlord's lawfully re-entering and taking possession of
the Premises or lawfully removing and storing the personal property of Tenant as
herein provided and will hold Landlord harmless from loss or damages occasioned
by Landlord thereby, and no such lawful re-entry shall be considered or
construed to be a forcible or unlawful entry or detainer.
13. Damage and Reconstruction. Should the Premises be damaged during the
term of this Lease, Tenant shall immediately notify Landlord, and the rights and
responsibilities of Landlord and Tenant shall then be as follows:
13.1 Insured Damage. In the event the Premises are damaged by fire or other
perils covered by Tenant's or Landlord's casualty or property insurance,
Landlord agrees forthwith to commence repair of the same to the extent of
insurance proceeds available and this Lease shall remain in full force and
effect, except that Tenant shall be entitled to a proportionate reduction of the
Rent (but not other obligations hereunder) from the date of damage and while
such repairs are being made, such proportionate reduction to be based upon the
extent to which the damage and making of such repairs shall cause undue
interference with the business carried on by Tenant in the Premises. In the
event the Premises are damaged by fire or other perils covered by Tenant's or
Landlord's casualty or property insurance, Tenant shall continue to be liable
for all payments of Additional Rent pursuant to Article 4 of this Lease. If the
damage is due to the fault or neglect of Tenant or Tenant's employees, there
shall be no abatement of the Rent.
13.2 Other Damage. In the event the Premises are damaged as the result of any
cause other than the perils covered by Tenant's or Landlord's casualty insurance
or for which insurance proceeds are insufficient fully to cover, then Landlord
agrees forthwith to commence repair of the same, only in the case that the
extent of the destruction of the Premises is less than twenty-five percent (25%)
of the then full replacement cost of the Premises. In the event the destruction
of the Premises is to an extent of twenty-five percent (25%) or more of the full
replacement cost of the Premises, then Landlord shall have the option (a) to
repair or restore such damage, this Lease continuing in full force and effect,
but the Rent to be proportionately reduced as provided above in Section 13.1; or
(b) to give notice to Tenant at any time within sixty (60) days after such
damage, terminating this Lease as of the date specified in the notice, which
date shall be no more than thirty (30) days after the giving of such notice. In
the event of giving such notice, this Lease shall expire and all interest of
Tenant in the Premises shall terminate on the date so specified in such notice
and the Rent, reduced by a proportionate reduction based upon the extent, if any
to which such damage unduly interferes with the business carried on by Tenant in
the Premises, the Additional Rent and all other obligations of Tenant under this
Lease shall be paid up to the date of such termination. At Tenant's sole option,
it may, upon notice to Landlord and in accordance with Article 5 of this Lease,
effect all necessary repairs and reinstate this Lease. Tenant's obligation to
pay the Rent, but not the other obligations hereunder, during any period of
repair shall be abated, so long as such period does not exceed one hundred
eighty (180) days.
13.3 Damage to Tenant's Property. Landlord shall not be required to repair or
make whole any injury or damage by fire or other cause or peril or to make any
repairs or replacements of any fixtures or other personal property of Tenant.
Tenant shall maintain hazard insurance to cover hazards to its personal
property.
14. Eminent Domain.
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14.1 Taking. If fifty percent (50%) or more of the Premises or the improvements
thereon shall be taken or appropriated by any public or quasi-public authority
under the power of eminent domain, Tenant shall have the right at its option
within sixty (60) days after said taking to terminate this Lease upon thirty
(30) days' written notice.
14.2 Partial Taking. If less than fifty (50%) percent of the Premises or the
improvements thereon are taken, or fifty percent (50%) or more of the Premises
or the improvements thereon are taken and Tenant elects not to terminate as
herein provided, the Rent thereafter to be paid shall be equitably reduced.
14.3 Award. In the event of any taking or appropriation whatsoever, Landlord
shall be entitled to any and all awards, payments or settlements which may be
given, made or ordered and Tenant shall have no claim against the condemning
authority or Landlord for the value of any unexpired term of this Lease, and
Tenant hereby assigns to Landlord any and all claims to any award, payments or
settlement. Nothing contained herein shall be deemed to give Landlord any
interest in or to require Tenant to assign to Landlord any award made to Tenant
for the taking of personal property or fixtures belonging to Tenant, for the
interruption of or damage to Tenant's business, or for Tenant's moving expenses.
15. Signs.
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15.1 Tenant Signs. Tenant may, at Tenant's sole expense, place external signs on
the Premises, provided such signs have been approved in advance by Landlord, and
provided such signs do not violate any statute or regulation existing during the
term of this Lease. Tenant shall pay the costs of removal of such signs upon
termination of the Lease, and such signs shall be the property of Tenant.
15.2 "For Lease" Signs. At any time within One Hundred Eighty (180) days
prior to the expiration of this Lease, Landlord may place upon the Premises
"for lease" signs.
16. Subordination. Tenant agrees that this Lease shall be subordinate to any
mortgage or deed of trust that is now or may hereafter be placed upon the
Premises and to any and all advances to be made thereunder, to the interest
thereon, and all renewals, replacements, and extensions thereof; provided, the
lender secured by and named in such mortgage or deed of trust shall agree in
writing to recognize this Lease of Tenant in the event of foreclosure, if Tenant
is not in default. Tenant agrees to take all actions and to execute and deliver
all certificates, instruments, documents and agreements, including, without
limitation, agreements of subordination, waiver and attornment, necessary or
proper to effect the foregoing.
17. Tenant's Statement. Tenant shall at any time and from time to time upon not
less than ten (10) days' prior written notice from Landlord, execute,
acknowledge, and deliver to Landlord a statement in writing (a) certifying that
this Lease is unmodified and in full force and effect (or, if modified, stating
the nature of such modification and certifying that this Lease, as so modified,
is in full force and effect) and the date to which the rental and other charges
are paid in advance, if any; (b) acknowledging that there are not, to Tenant's
knowledge, any uncured defaults on the part of Landlord hereunder, or specifying
such defaults if any are claimed; and (c) setting forth the date of commencement
of the Rent and expiration of the Term hereof. Any such statement may be relied
upon by any prospective purchaser or encumbrancer of the Premises. Failure to
provide such statement within ten (10) days shall be deemed confirmation of the
statement of Landlord regarding each of the foregoing items.
18. Authority of Parties. Each of Tenant and Landlord represents and warrants
that it is duly organized and in good standing and that the execution, delivery
and performance of this Lease has been duly authorized by all requisite action.
Each individual executing this Lease on behalf of the organization that is a
party hereto represents and warrants that he or she is duly authorized to
execute, deliver and perform this Lease for, in the name of and on behalf of the
respective party, in accordance with the charter documents of such organization,
and that this Lease is legally binding upon and enforceable against such entity
in accordance with its terms. Upon request, each of Tenant and Landlord agrees
to provide a Certificate of Officer verifying the authority and position of each
signatory.
19. General Provisions. Landlord and Tenant agree to the following general
provisions:
19.1 Waiver. A waiver by Landlord of any term, covenant, or condition herein
contained shall not be deemed to be a future waiver of such term, covenant, or
condition, nor the waiver of any other term, covenant or condition herein
contained. The subsequent acceptance of any payment hereunder by Landlord shall
not be deemed to be a waiver of any preceding default by Tenant of any term,
covenant, or condition of this Lease, other than the failure of Tenant to pay a
particular rental so accepted, regardless of Landlord's knowledge of such
preceding default at the time of the acceptance of any such rent.
19.2 Time. Time is of the essence of this Lease and each and all its
provisions in which performance is a factor.
19.3 Headings. The heading and section titles of this Lease are not a part of
this Lease and shall have no effect upon the construction or interpretation of
any part hereof.
19.4 Successors and Assigns. The covenants and conditions herein contained
subject to the provisions as to assignment, apply to and bind the heirs,
successors, executors, administrators, and assigns of the parties hereto.
19.5 Quiet Possession. Upon Tenant paying all of the obligations hereunder and
performing all of the covenants, conditions, and provisions on Tenant's part to
be observed and performed hereunder, Tenant shall have quiet possession of the
Premises for the entire term hereof, subject to all the provisions of this
Lease. The Premises are leased subject to any and all existing encumbrances,
conditions, rights, covenants, easements, restrictions, rights-of-way, and any
matters of record, applicable zoning and building laws, and such matters as may
be disclosed by inspection or survey.
19.6 Prior Agreements. This Lease contains all of the agreements of the parties
hereto with respect to any matter covered or mentioned in this Lease, and no
prior agreements or understandings pertaining to any such matters shall be
effective or binding upon any party until fully executed by both parties hereto.
19.7 Partial Invalidity. Any provisions of this Lease which shall prove to be
invalid, void, or illegal shall in no way affect, impair, or invalidate any
other provision hereof, and such other provision shall remain in full force and
effect.
19.8 Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive, but shall whenever possible be cumulative with all other remedies at
law or in equity.
19.9 Governing Law. This Lease shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts, excluding
its conflict of laws.
19.10 Real Estate Commission. There are no brokers eligible to receive
commissions.
19.11 Notice. Any notices or other communications required or permitted
hereunder or otherwise in connection herewith shall be in writing and shall be
deemed to have been duly given when delivered in person or transmitted by
facsimile transmission or on receipt after dispatch by express, registered or
certified mail, postage prepaid, addressed, as follows:
If to Landlord:
Sterling Realty Trust
00 Xxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxx, Trustee
If to Tenant:
Mestek, Inc.
000 Xxxxx Xxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, Xx. Vice President-Finance
19.12 Survival. All agreements, covenants, warranties, representations and
indemnification contained herein or made in writing pursuant to the terms of
this Lease by or on behalf of Tenant shall be deemed material and shall survive
the expiration or sooner termination of this Lease.
DATED as of the date first set forth above.
LANDLORD:
STERLING REALTY TRUST
-----/S/ XXXX X. XXXX--------
By: Xxxx X. Xxxx
Its: Trustee
TENANT:
MESTEK, INC.
-----/S/ XXXXXXX X. XXXX------
By: Xxxxxxx X. Xxxx
Its: Sr. Vice President-Finance
EXHIBIT A
This is Exhibit A to that certain Lease Agreement made as of the 1st day of
January, 2000, by and between Sterling Realty Trust, a Trust made under a
Declaration of Trust dated November 24, 1950, and recorded in Hampden County
Registry of Deeds as Document No. 26882, in Book 2088, Page 123 (the
"Landlord"), and Mestek, Inc., and its successors and assigns (the "Tenant") a
Pennsylvania corporation, with offices at 000 Xxxxx Xxx Xxxxxx, Xxxxxxxxx, XX
00000.
The Premises leased by Tenant from Landlord is situated on the following real
property:
Parcel 1 - Land owned by the Lessor on the westerly side of Xxxxx Xxx
Xxxxxx in said Westfield, with buildings thereon, being described
generally as bounded on the easterly side by North Elm Street; on the
southerly side by Notre Dame Street; on the westerly side by other land
of the Lessor and formerly of Dirats; and on the northerly side by
Powdermill Brook.
Parcel 2 - Land with building thereon on the easterly side of North Elm
Street in said Westfield, more particularly described as follows:
Commencing at a stake one hundred fifty (150) feet northerly from Notre
Dame Street, on the easterly side on Xxxxx Xxx Xxxxxx; thence running
southeasterly two hundred fifteen (215) feet to Xxxxxx Street, this
bound being parallel with Notre Dame Street; thence running
northeasterly along Xxxxxx Street, and also the westerly boundary of
land nor or formerly of Sigmond and Xxxx Aleskevity, seven hundred
twenty-six (726) feet to so-called Powdermill Brook; thence running
westerly along said Powdermill Brook to said Xxxxx Xxx Xxxxxx; thence
running southerly on Xxxxx Xxx Xxxxxx two hundred sixty-five (265) feet
more or less to the point of beginning.
