EXHIBIT 10.9
LEASE AGREEMENT
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THIS LEASE AGREEMENT ("Lease") made as of the 1st day of March, 2002 by and
between XXXXXXX REALTY, a Division of Xxxxxxx Art, Inc., ("Landlord"), with
mailing address at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx Xxxxxx,
Xxxxxxxxxxxx, 00000
A N D
Armitec Inc. (owner) and Xxxx Xxxxx Inc., ("Tenant"), with mailing address at
0000 Xxxx Xxxxxx Xx., XX, Xxxxxxx, Xxxxxxx 00000.
WITNESSETH:
THAT FOR THE CONSIDERATION of the mutual covenants and agreements herein
contained, the parties hereto do hereby covenant and agree as follows:
ARTICLE 1
DEFINITIONS AND ATTACHMENTS
Section 1.1. Certain Defined Terms.
As used herein, the terms:
A. "Landlord's Building" means the industrial building of the Landlord
located at East Diamond Avenue and Cedar Streets, Hazleton, Luzerne County,
Pennsylvania.
B. "Tenant's Premises" means all that 58,000 square foot portion of the
industrial building outlined on "Exhibit "A" attached hereto.
C. "Permitted Use" means operation of a manufacturing facility.
Section 1.2. Attachments.
The following document is attached hereto, and such documents shall be
deemed to be a part hereof.
"Exhibit "A" - Tenant's Premises.
ARTICLE II.
PREMISES
Section 2.1. Length of Term.
Landlord hereby leases to Tenant, and Tenant hereby takes from Landlord,
the Premises for the Term and at the Rent hereinafter described.
The Term of this Lease shall be for twenty-two (22) months following the
commencement date.
Section 2.2. Renewal.
At the expiration of the Term hereof, with this Lease then being in full
force and effect, and the Tenant having fully performed all of its Terms and
conditions, the Tenant shall have the option to extend this Lease upon the same
Terms and conditions for a further Term of three (3) years from the termination
date of the original Lease period, with an increase of see page 20 percent for
each additional year of the three (3) year renewal term.
ARTICLE III.
RENT
Section 3.1. Rent Payable.
The Rent shall be $107,300.04 payable monthly in the amount of $8,941.67
per month on or before the first day of each month, at the office of the
Landlord or such other address as shall be designated in writing by Landlord
from time to time, without any prior demand therefor and without any deduction
or offset whatsoever, except as may specifically be permitted herein.
Tenant shall pay all Rent when due and payable, without any offset,
deduction or prior demand thereof whatsoever. Any payment by Tenant or
acceptance by Landlord of a lesser amount than shall be due from Tenant to
Landlord shall be treated as payment on account. The acceptance by Landlord of a
check for a lesser amount with an endorsement or statement thereon, or upon any
letter accompanying such check, that such lesser amount is payment in full,
shall be given no effect, and Landlord may accept such check without prejudice
or any other rights or remedies which Landlord may have against Tenant.
Section 3.2. Additional Rent.
Tenant shall pay as Additional Rent any money required to be paid as such
pursuant to the provisions of this lease, as well as all other sums of money or
charges required to be paid by Tenant under this Lease, whether or not the same
shall be designated "Additional Rent." If such amounts or charges are not paid
at the time provided in this Lease, they shall nevertheless, if not paid when
due, be collectible as Additional Rent with the next installment of Rent
thereafter falling due hereunder, but nothing herein contained shall be deemed
to suspend or delay the payment of any amount of money or charge at the time the
same becomes due and payable hereunder, or limit any remedy of Landlord.
ARTICLE IV.
PERSONAL GUARANTY & SECURITY DEPOSIT
Section 4.1. Personal Guaranty.
Tenant agrees to provide the written personal guaranty of ____________, ,
its __________ in the amount of $ _______ Dollars, upon execution of this Lease
Agreement, said guaranty to be in full force and effect during the term of the
Lease. Said guaranty shall be returned by Landlord upon the termination of the
Lease, after payment of all sums due Landlord.
Section 4.2. Security Deposit.
Tenant hereby deposits with Landlord the sum of $__________ to be held as
security for the full and faithful performance by Tenant of Tenant's obligations
under this Lease and for the payment of damages to the demised Premises. The
security deposit shall be returned by Landlord to Tenant at the termination of
the Lease, after payment of all sums due Landlord.
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ARTICLE V.
IMPROVEMENTS; ALTERATIONS; RELOCATION; AND RENOVATION
Section 5.1. Mechanic's Lien.
No work which Landlord permits Tenant to do pursuant to this Lease, whether
in the nature of erection, construction, alteration or repair, shall be deemed
to be for the immediate use and benefit of the Landlord so that no mechanic's or
other lien shall be allowed against the estate of Landlord by reason of any
consent given by Landlord to Tenant to improve the Premises Tenant shall pay
promptly all persons furnishing labor or materials with respect to any work
performed by Tenant or its contractor on or about the Premises. In the event any
mechanic's or other lien shall at any time be filed against the Premises by
reason of work, labor, services or materials performed furnished, or alleged to
be performed or furnished, to Tenant or to anyone holding the Premises through
or under Tenant, Tenant shall forthwith cause the same to be discharged of
record or bonded to the satisfaction of Landlord. If Tenant shall fail to cause
such lien forthwith to be so discharged or bonded after being notified of the
filing thereof, then, in addition to any other right or remedy of Landlord,
Landlord may discharge the same by paying the amount claimed to be due, and the
amount so paid by Landlord including reasonable attorney's fees incurred by
Landlord in procuring the discharge of such lien, together with interest thereon
at the Default Rate, shall be due and payable by Tenant to Landlord as
Additional Rent.
Section 5.2. Tenant's Trade Fixtures.
All trade fixtures and apparatus (as distinguished from leasehold
improvements) owned by Tenant and installed in the Premises shall remain the
property of Tenant, and shall be removable at any time, including upon the
expiration of the Term; provided Tenant shall not at such time be in default of
any terms or covenants of this Lease; and provided further that Tenant shall
repair any damage to the Premises caused by the removal of said fixtures. If
Tenant is ill default, Landlord shall have the benefit of any applicable lien on
Tenant's property located in or on the Premises as may be permitted under the
laws of Pennsylvania, and in the event such lien is asserted by Landlord in any
manner or by operation of law, Tenant shall not remove or permit the removal of
said property until the lien has been removed and all defaults have been cured.
ARTICLE VI.
USE AND OCCUPANCY BY TENANT
Section 6.1. Prompt Occupancy and Use.
Tenant shall occupy the Premises upon the commencement of the Term and
thereafter will continuously use the Premises for the Permitted Use and for no
other purpose whatsoever; and Tenant further agrees to conduct its business in
the Premises under Tenant's professional name or professional name except such
as may be first approved by Landlord in writing; and Tenant further agrees that
the use is to be for commercial purposes only and may never be used at any time
for residential or other purposes.
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ARTICLE VII.
REPAIRS AND ALTERATIONS
Section 7.1. Repairs To Be Made By Landlord.
Landlord agrees that it will make or cause to be made during the term, all
structural repairs and replacements to exterior walls, columns and roof of the
Premises.
Section 7.2. Repairs To Be Made By Tenant.
After commencement of the Term, all repairs to the Premises and/or any
installations, equipment or facilities therein, shall be made by Tenant at its
expense. Without limiting the generality of the foregoing, Tenant will keep the
interior of the Premises, together with all electrical, plumbing and other
mechanical installations therein in good order and repair and will make all
replacements from time to time required thereto at its own expense; and will
surrender the Premises at the expiration of the Term or at such other time as it
may vacate the Premises in as good condition as at Commencement Date, excepting
depreciation caused by ordinary wear and tear, damage by Casualty (other than
such damage by casualty which is caused by the negligence of Tenant, its agents,
concessionaires, officers, employees, contractors, licensees or invitees, and
which is not wholly covered by Landlord's hazard insurance policy), unavoidable
accident or Act of God. Tenant will not overload the electrical wiring servicing
the Premises, and will install at its expense any additional electrical wiring
which may be required in connection with Tenant's apparatus. Any damage 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 paid for by Tenant and. Tenant shall indemnify
and hold Landlord harmless from and against all claims, actions, damages and
liability in connection therewith, including, but not limited to attorney's and
other professional fees, and any other cost which Landlord might reasonably
incur.
Section 7.3. Damage to Premises.
Tenant will repair promptly at its expense any damage to the Premises, and,
upon demand, shall reimburse Landlord (as Additional Rent) for the cost of the
repair of any damage of property of Landlord caused by bringing into the
Premises any property for Tenant's use, or by the installation or removal of
such property, regardless of fault or by whom such damage shall be caused
(unless caused by Landlord, its agents, employees or contractors); and in
default of such repairs by Tenant, at the expiration of thirty (30) days after
notice to Tenant, Landlord may make or cause the same to be made and Tenant
agrees to pay to Landlord promptly upon Landlord's demand, as Additional Rent
the cost thereof with interest thereon at the Default Rate until paid.
Section 7.4. Alterations by Tenant.
Tenant may make such alterations, renovations or improvements or cause to
be installed such trade fixtures, floor covering, interior lighting, plumbing
fixtures, or any other installations in, on or to the Premises or any part
thereof as are reasonably necessary for the proper, efficient, and attractive
operation of its business. Tenant agrees not to make any structural alterations,
or to allow anything other than incidental cutting or drilling into any part of
the Premises without Landlord's approval, which approval shall not be
unreasonably withheld.
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Section 7.5. Roof and Walls.
Landlord shall have the exclusive right to use all or any part of the roof
of the Premises for any reasonable purpose; to erect additional stories or other
structures over all or any part of the Premises; to erect in connection with the
construction thereof temporary scaffolds and other aids to construction on the
exterior of the Premises, provided that access to the Premises shall not be
denied; and to install, maintain, use, repair and replace within the Premises
pipes, ducts, conduits, wires and all other mechanical equipment, the same to be
in location within the Premises as will not unreasonably deny Tenant's use
thereof Landlord may make any use it desires of the side or rear walls of the
Premises, provided that such use shall not encroach on the interior of the
Premises.
ARTICLE VIII.
OPERATIONS AND MAINTENANCE OF PREMISES
Section 8.1. Operations and Maintenance by Tenant.
In regard to the use and occupancy of the Premises, Tenant will at its
expense:
(a) Keep the inside and outside of all glass in the doors and windows of
the Premises clean;
(b) Keep all exterior surfaces of the Premises clean and in good
condition;
(c) Replace promptly any cracked or broken glass of the Premises with
glass of like kind and quality;
(d) Keep any garbage, trash, rubbish or other refuse in rat-proof
containers within the interior of the Premises until removed;
(e) Have such garbage, trash, rubbish and refuse removed on a weekly
basis;
(f) Keep all mechanical apparatus free of vibration and notice which may
be transmitted beyond the Premises;
(g) Remove all waste in accordance with accepted procedures pertaining to
such waste.
Section 8.2. Surrender of Premises.
At the expiration of the tenancy hereby created, Tenant shall surrender the
in the same condition as the Premises were upon delivery of possession thereto
under this Lease, reasonable wear and tear and damage by unavoidable casualty
excepted, and shall surrender all keys for the Premises to Landlord at the place
then fixed for the payment of Rent and shall inform Landlord of all combinations
of locks, safes and vaults, if any, in the Premises. Tenant shall, if requested
by Landlord, remove all of its trade fixtures and shall repair any damage to the
Premises caused thereby. Tenant's obligation to observe or perform this covenant
shall survive the expiration or other termination of the term of this Lease.
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ARTICLE IX.
INSURANCE AND INDEMNITY
Section 9.1. Indemnification of Landlord.
Tenant shall indemnify Landlord and save it harmless from and against any
and all claims, actions, damages, liability and expense, including but not
limited to attorney's and other professional fees, in connection with the loss
of life, personal injury and/or damage to property arising from or out of any
occurrence in, upon or at the Premises, or the occupancy or use by Tenant of the
Premises or any part thereof, or occasioned wholly or in part by any act or
omission of Tenant, its agents, contractors, employees, servants, lessees or
concessionaires. In case Landlord shall, without fault on its part, be made a
party to any litigation commenced by or against Tenant, the Tenant shall protect
or hold Landlord harmless and shall pay all costs, expenses and reasonable
attorney's fees incurred or paid by Landlord in connection with such litigation.
Tenant shall also pay all costs, expenses and reasonable attorney's fees that
may be incurred or paid by Landlord in enforcing the covenants and agreements in
this Lease.
Section 9.2. Indemnification of Tenant.
Landlord shall indemnify Tenant and save it harmless from and against any
and all claims, actions, damages, liability and expense, including but not
limited to, attorney's fees and other professional fees in conjunction with the
loss of life, personal injury and./or damage to property arising from out of any
occurrence in, upon, or at the Premises, or the occupancy or use by Tenant of
the Premises or any part thereof, or occasioned wholly or in part by any act or
omission of Landlord, its agents, contractors, employees, servants, lessees, and
concessionaires. In case Tenant shall, without fault on its part, be made a
party to any litigation commenced by or against Landlord, the Landlord shall
protect and hold Tenant harmless and shall pay all costs, expenses and
reasonable attorney's fees incurred or paid by Landlord in connection with such
litigation. Landlord shall also pay all costs, expenses and reasonable
attorney's fees that may be incurred or paid by Tenant in enforcing the
covenants and agreements in this Lease.
Section 9.3. Landlord Not Responsible for Acts of Others.
Landlord shall not be responsible or liable to Tenant, or to those claiming
by, through or under Tenant, for any loss or damage which may be occasioned by
or through the acts or omissions of persons occupying space adjoining the
Premises or any part of the Premises adjacent to or connecting with the Premises
or otherwise, or for any loss or damage resulting by Tenant, or those claiming
by, through or under Tenant, or its or their property, from the breaking
bursting, stoppage or leaking of electrical cable and wires, and water, gas,
sewer, or steam pipes. To the maximum extent permitted by law, Tenant agrees to
use and occupy the Premises, at Tenant's own risk.
Section 9.4. Tenant's Insurance.
At all times after the execution of this Lease, Tenant will take out and
keep in force, at its expense:
(a) all-risk casualty insurance, written at replacement cost value and
with replacement cost endorsement, covering all of Tenant's personal
property in the Premises (including, without limitation, inventory,
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trade fixtures, floor covering, furniture and other property removable
by Tenant under the provisions of this Lease) and all leasehold
improvements installed in the Premises by Tenant; and
(b) if and to the extent required by law, workmen's compensation or
similar insurance in form and amounts required by law.
ARTICLE X.
UTILITIES
Section 10.1. Water, Electricity, Telephone and Sanitary Sewer.
Landlord will provide at points in or near the Premises the facilities
necessary to enable Tenant to obtain for the premises, water, electricity,
telephone and sanitary sewer service. With regard to sewer charges, Tenant
agrees to pay the sum of One and 85/100 ($1.85) per one thousand (1,000) gallons
per month as presently metered with automatic increases charged from time to
time by the Greater Hazleton Joint Sewer Authority. Tenant agrees to pay any and
all water charges that may be imposed or assessed by the Hazleton City
Authority-Water Department for water either for manufacturing or otherwise at
rates in effect at the time this Lease is executed, or as thereafter metered
with automatic increases charged from time to time by the Hazleton City
Authority-Water Department. Tenant shall pay annually fire alarm inspection and
water standby charges of Two ($.02) cents per foot, with automatic increase
charges when rates at increased by the Fire Alarm System Company retained from
time to time by the Landlord, or when rates for water standby charges are
increased by the Hazleton City Authority-Water Department. When fuel used to
heat the building during the heating season (October 15 through April 15)
exceeds twenty percent (20%), based on a combined fuel cost xxxx at the
beginning of each heating season and available to Tenant upon Tenant's request,
Tenant shall pay Tenant's prorata share of that increase based upon ____________
square feet of gross leasable space in the building. Landlord, in its sole
discretion, may alter from time to time the method and source of supply of
electricity to the Premises and Tenant shall execute and deliver such documents
or instruments as Landlord shall deem to be necessary or desirable in order to
effect such alteration, so long as the business of Tenant is not materially
disturbed., Tenant shall pay all charges for electricity as billed by Landlord
as additional rent.
ARTICLE XI.
FINANCING REQUIREMENTS OF THE PARTIES
Section 11.1. Subordination.
To the extent that Tenant requires mortgage financing for its construction
of leasehold improvements on the Premises at any time during the Term of this
Lease, and Tenant is not otherwise in violation of any Term or provision of this
Lease, Landlord agrees to subordinate its rights in and to said leasehold
improvements to and in favor of the mortgage of Tenant. Tenant agrees that, in
consideration of Landlord's agreement to subordinate, that it will. secure in
any such financing, an affirmative covenant from its Lender allowing Landlord
the opportunity to cure any default of Tenant and thereafter, pursue such
remedies against Tenant under the terms of this Lease.
To the extent that any mortgagee of Landlord elects, such mortgagee upon
notice to Tenant of the default of Landlord shall be entitled to receive from
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Tenant all future rent in the performance of all of Tenant's obligations
hereunder, whether to cure any default of Landlord of its obligation under the
mortgage or in exercise of its reversionary rights under any such mortgage
instrument.
Section 11.2. Attornment.
If any person shall succeed to all or part of Landlord's interest in the
Premises, whether by purchase, foreclosure, deed in lieu of foreclosure, power
of sale, termination of Lease, or otherwise, and if so requested or required by
such successor in interest, Tenant shall attorn to such successor in interest
and shall execute such agreement in confirmation of such attornment as such
successor in interest shall reasonably request.
Section 11.3. Execution of Estoppel Certificate.
At any time and from time to time upon the written request of Landlord or
any mortgagee, Tenant within ten (10) days of the date of such written request,
agrees to execute and deliver to the Landlord and/or such mortgagee, without
charge and in a form satisfactory to Landlord and/or such mortgagee, a written
statement: (a) ratifying this Lease; (b) confirming the commencement and
expiration dates of the term of the Lease; (c) certifying that Tenant is in
occupancy of the demised premises, and that Lease is in full force and effect
and has not been modified, assigned, supplemented or amended except by such
writings as shall be stated; (d) certifying that all conditions and agreements
under this Lease to be satisfied or performed by Landlord have been satisfied or
performed except as shall be stated; (e) certifying that Landlord is not in
default under the Lease and there are no defenses or offsets against the
enforcement of this Lease by Landlord, or stating the defaults and/or defenses
claimed by Tenant; (f) reciting the amounts of rent, if any, paid by Tenant and
the date that such rent has been paid; (g) reciting the amount of security
deposited with Landlord, if any, and (h) any other information which Landlord or
the mortgagee shall require.
ARTICLE XII.
ASSIGNMENT AND SUBLETTING
Section 12.1. Landlord's Consent Required.
Tenant shall not assign this Lease, in whole or in part, nor sublet all or
any part of the Premises, nor license concessions or lease departments therein,
without first obtaining the consent of Landlord. This prohibition includes any
subletting or assignment which would otherwise occur by operation of law,
merger, consolidation, reorganization, transfer or other change of Tenant's
corporation or proprietary structure, or an assignment or subletting to or by a
receiver or trustee in any Federal or state bankruptcy insolvency, or other
proceedings. Consent by Landlord to any assignment of subletting shall not
constitute a waiver of the requirement for such consent to any subsequent
assignment of subletting.
Section 12.2. Acceptance of Rent from Transferee.
The acceptance by Landlord of the payment of Rent following any assignment
or other transfer prohibited by this Article shall not be deemed to be a consent
by Landlord to any such assignment or such assignment or other transfer nor
shall the same be deemed to be a waiver of any right or remedy of Landlord
hereunder.
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ARTICLE XIII.
DAMAGE AND DESTRUCTION
Section 13.1. Landlord's Obligation to Repair and Reconstruct.
If the Premises shall be damaged by fire, the elements, accident or other
casualty (any of such causes being referred to herein as "a Casualty"), but the
Premises shall not be thereby rendered wholly or partially untenantable,
Landlord shall promptly cause such damage to be repaired and there shall be no
abatement of Rent. If, as a result of Casualty, the Premises shall be rendered
wholly or partially untenantable, then, subject to the provisions of Section
16.2 Landlord shall cause such damage to be repaired and all Rent (other than
any Additional Rent due Landlord by reason of Tenant's failure to perform any of
its obligations hereunder) shall be abated proportionately as to the portion of
the Premises rendered untenantable during the period of such untenantability.
Landlord's obligation to repair shall be limited to the construction of the
structure, demising walls, roof, slab and utility services as originally
provided. Landlord shall not be liable for interruption to Tenant's business or
for damage to or replacement or repair of Tenant's personal property (including,
without limitation, inventory, trade fixtures, floor covering, furniture and
other property removable by Tenant under the provisions of this Lease or to any
leasehold improvements installed in the Premises by Tenant all of Which damage,
replacement or repair shall be undertaken and completed by Tenant promptly.
Section 13.2. Landlord's Option to Terminate Lease.
If the Premises are (a) rendered wholly untenantable, or (b) damaged as a
result of arty cause which is not covered by Landlord's insurance or (c) damaged
or destroyed in whole or in part during the last one (1) year of the Term, or if
Landlord's Building is damaged to the extent of twenty-five percent (25%) or
more of the Gross Leasable Area thereof, then in any of such events, Landlord
may elect to terminate this Lease by giving to Tenant notice of such election
within thirty (30) days after the occurrence of such event. If such notice is
given, the rights and obligations of the parties shall cease as of the date of
such notice, and Rent (other than any Additional Rent due Landlord by reason of
Tenant's failure to perform any of its obligations hereunder) shall be adjusted
as of the date of such termination.
Section 13.3. Demolition of Landlord's Building.
If Landlord's Building shall be so substantially damaged that it is
reasonably necessary, in Landlord's judgment, to demolish such Building for the
purpose of reconstruction, Landlord may demolish the same in which event the
Rent shall be abated to the same extent as if the Premises were rendered
untenantable by a Casualty.
ARTICLE XIV.
DEFAULT OF TENANT
Section 14.1. Events of Default.
Any one or more of the following events shall constitute an "Event of
Default":
(1) if Tenant fails to pay any Rent, Additional Rent or any other sum of
money due hereunder within thirty (30) days after the same shall be
due; or
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(2) if Tenant fails fully and faithfully to perform any of the other
covenants of this Lease on Tenant's part to be performed hereunder and
such failure shall continue for the period within which performance is
required to be made by specific provision of this Lease or, if no such
period is so provided, for twenty (20) days after the date of notice
from Landlord to Tenant specifying the nature of said default, or, if
the default so specified shall be of such a nature that the same
cannot be reasonably cured for remedied within said twenty (20) day
period, if Tenant shall not in good faith have commenced the curing or
remedying of such default within such twenty (20) day period and shall
not thereafter diligently proceed therewith to completion; or
(3) if by order of court of competent jurisdiction, a receiver or
liquidator or trustee of Tenant or any guarantor of this Lease, or of
any of its property, shall be appointed and shall not have been
discharged within ninety (90) days, provided Tenant is in compliance
with the other Terms and provisions of this Lease Agreement, or if by
decree of a court of competent jurisdiction Tenant or any such grantor
shall be adjudicated bankrupt or insolvent, or any of its property
shall have been sequestered, and such decree shall have continued
undischarged and unstayed for thirty (30) days after the entry
thereof, or if any proceedings under the Federal Bankruptcy Act or any
similar statute applicable to Tenant or any such guarantor, as nor or
hereafter in effect, shall be instituted by or against it and shall
not be dismissed within thirty (30) days after such filing, or if
Tenant or any such guarantor shall institute any such proceeding or
shall consent to the institution of any such proceeding against it
under any such law, or if Tenant or any such guarantor shall consent
to the appointment of a receiver or liquidator or trustee of it or of
all or any part of its property, or
(4) if Tenant shall admit in writing its inability to pay debts when due;
or
(5) if Tenant shall have abandoned the Premises or suffers this Lease to
be taken under any writ of execution or similar legal process; or
(6) if Tenant shall fail to continuously use and occupy the Premises as
required by this Lease; or
(7) if there shall be recorded against Tenant a lien by any taxing
authority (including by way of example and/or by way of limitation,
the Internal Revenue Service Pennsylvania Department of Revenue,
Pennsylvania Unemployment Compensation Fund or any municipal or
township authority) in a slim in excess of One Hundred and no/100
($100.00) Dollars, or a judgment by any party in an amount greater
than One Thousand and no/100 ($1,000.00) Dollars and such lien or
judgment shall not have been satisfied, discharged, appealed or bonded
over within ninety (90) days following entry of said lien or judgment.
Section 14.2. Additional Remedies of Landlord.
(a) Upon the occurrence of any Event of Default, and whether or not
Landlord elects to re-enter, as herein provided, or to take possession
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pursuant to legal proceedings or to any notice provided for by law,
Landlord may either terminate this Lease or it may from time to time
without terminating this Lease, make such alterations and repairs as
may be necessary in order to relet the Premises, and relet said
Premises or any part thereof upon such term or terms (which may be for
a term extending beyond the term of this Lease) and at such rental or
rentals and upon such other terms and conditions as Landlord in its
sole discretion may deem advisable; upon each such reletting all
rentals received by Landlord from such reletting shall be applied,
first, to the payment of any indebtedness other than Rent due
hereunder from Tenant to Landlord; second, to the payment of any costs
and expenses of such reletting, including brokerage fees and
attorney's fees and costs of such alterations and repairs; third, to
the payment of Rent due and unpaid hereunder, and the balance, if any,
shall be held by Landlord and applied in payment of future Rent as the
same may become due and payable hereunder. If such rental received
from such reletting during any month be less than that to be paid
during that month by Tenant hereunder, Tenant shall pay any such
deficiency to Landlord. Such deficiency shall be calculated and paid
monthly. No such reentry or taking possession of said Premises by
Landlord shall be construed as an election on its part to terminate
this Lease unless a written notice of such intention be given to
Tenant or unless the termination thereof be decreed by a court of
competent jurisdiction. Notwithstanding any such reletting without
termination., Landlord may at any time thereafter elect to terminate
this Lease for such previous breach.
Should Landlord at any time terminate this Lease for any breach,
in addition to any other remedies it may have, it may recover from
Tenant all damages it may incur by reason of such breach, including
the cost of recovering the Premises, reasonable attorney's fees, and
the worth at the time of such termination of the excess, if any, of
the amount of Rent for the remainder of the stated term over the then
reasonable rental value of the Premises for the remainder of the
stated term, all of which amounts shall be immediately due and payable
from Tenant to Landlord. In determining the Rent which would be
payable by Tenant hereunder, subsequent to default, the annual Rent
for each year of the unexpired terms shall be equal to the average
Rent paid by Tenant from the Commencement Date to the time of default,
or during the proceeding three (3) full calendar years, whichever
period is shorter.
(b) In the event of a breach or a threatened breach by Tenant of any of
the covenants or provisions hereof, Landlord shall have the right of
injunction and the right to invoke any remedy allowed at law or in
equity as if re-entry, summary proceedings and other remedies were not
herein provided for. Mention in this Lease of any particular remedy
shall not preclude Landlord from any other remedies under this Lease,
now or hereafter existing at law or in equity or by statute.
(c) Tenant hereby expressly waives the service of notice of intention to
re-enter or to institute legal proceedings to that end and any and all
rights of redemption granted by or under any present or future laws in
the event of Tenant being evicted or dispossessed for any cause, or in
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the event of Landlord obtaining possession of the Premises by reason
of the violation by Tenant of any of the covenants and conditions of
this Lease or otherwise. The words "re-enter" and "re-entry" as used
in this Lease are not restricted to other technical legal meaning.
Section 14.3. Confessions of Judgment.
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME, A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO
COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE SELLER.
(a) Upon the occurrence of any Event of Default which is not cured by
Tenant within the period of time provided herein, Tenant hereby
empowers any Prothonotary or any attorney of any court of record
within the United States or elsewhere to appear for Tenant, with
declaration filed, and confess judgment against Tenant in favor of
Landlord, its successors and assigns, as of any term, for any
determined amount to which Landlord would be entitled as damages,
under any of the provisions herein including also an attorney's fee
for collection of the same of five percent (5%) of the total amount of
such damages, together with costs of suit, and Tenant hereby waives
all errors, defects and imperfections in entering said judgment or in
any writ, process of proceeding thereon or thereto or in any wise
touching or concerning the same; and for the confession and entry of
such judgment, this Lease or a true and correct copy thereof shall be
sufficient warrant and authority. The authority and power contained
herein shall not be exhausted by one exercise thereof, but judgment
may be confessed as aforesaid time to time and as often there is an
occurrence of any Event of Default which is not cured by Tenant as
provided herein; and furthermore such authority and power may be
exercised during the original term and any extension or renewal
thereof, or after the expiration or earlier termination of the term
hereof.
(b) When this Lease shall be terminated or canceled by reason of the
breach of any provision hereof, either during the original term of
this Lease, any renewal thereof, and also as soon as the term hereby
created or any renewal thereof shall have expired, it shall be lawful
for any attorney for Tenant to file an agreement for entering in any
court of competent jurisdiction an amicable action and confession of
judgment in ejectment against Tenant and all persons claiming under
Tenant for the recovery by Landlord of possession of the Premises for
which this Lease or a true or correct copy thereof shall be sufficient
warrant whereupon, if Landlord so desires, a writ of possession may
issue forthwith, without any prior writ or proceeding whatsoever and
provided that if for arty reason after such action shall have been
commenced the same shall be terminated and possession remain in and be
restored to Tenant, Landlord shall have the right upon any subsequent
default or defaults, or upon the termination or cancellation of this
Lease as hereinbefore set forth, to bring one or more amicable action
or actions as hereinbefore set forth to recover possession as
aforesaid.
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Section 14.4. Waiver of Trial by Jury and Counterclaims.
The parties hereto shall and they do hereby waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other on any matters whatsoever arising out of or in any way
connected with this lease, the relationship of Landlord and Tenant, Tenant's use
or occupancy of the Premises, and/or proceedings for the non-payment of Rent,
Tenant will not interpose any counterclaim of whatever nature or description in
any such proceedings. This shall not, however, be construed as a waiver of
Tenant's right to assert such claims in any separate action or actions brought
by Tenant.
Section 14.5. Waiver of Right of Redemption.
Tenant hereby expressly waives any and all rights of redemption granted
by or under arty present or future laws in the event of Tenant being evicted or
dispossessed for any cause, or in the event of Landlord obtaining possession of
the Premises, by reason of the violation by Tenant of any of the covenants or
conditions of this lease, or otherwise.
Section 14.6. Additional Waivers.
Tenant expressly waives:
(a) The benefit of all laws, now or hereinafter in force, exempting any
goods on the Premises, or elsewhere, from distraint, levy or sale in
any legal proceedings taken by Landlord to enforce any rights under
this Lease;
(b) The benefit of all laws now made or which may hereafter be made
regarding any limitation as to the goods upon which, or the time
within which, distress is to tie made after the removal of goods, and
further relieves Landlord of the obligation of proving or identifying
such goods, it being the purpose and. intent of this provision that
all goods of Tenant, whether upon the Premises or not, shall tie
liable to distress for Rent;
(c) The right to issue a writ of replevin for the recovery of any goods
seized under a distress for Rent or levy upon an execution for Rent,
damages or otherwise;
(d) The right to delay execution on any real estate that may be levied
upon to collect any amount which may become due under the terms and
conditions of this Lease and any right to have the same appraised, and
Tenant authorizes any Prothonotary or clerk to enter a writ of
execution or other process upon Tenant's voluntary waiver and further
agrees that said real estate may be sold on a writ of execution or
other process;
(e) All rights under the Landlord and Tenant Act of 1951, and all
supplements and amendments thereto, hereby authorizing the sale of any
goods distrained for Rent at any time after ten (10) days from said
distraint without any appraisement and condemnation thereof, and
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Section 14.7. Rights and Obligations under the Bankruptcy Code.
The following shall be in addition to and not in abrogation of any other
legal or equitable right or remedy which Landlord may have;
(a) Upon the filing of a petition by or against Tenant under the
Bankruptcy Code, Tenant, as debtor and as debtor in possession, and
any trustee who may be appointed agree as follows: (i) to perform each
and every obligation of Tenant under this Lease until such time as
this Lease is either rejected or assumed by order of the United States
Bankruptcy Court; and (ii) to pay monthly in advance on the first
(1st) day of each month as reasonable compensation for use and
occupancy of the Premises an amount equal to all Rent; and (iii) to
reject or assume this Lease within ninety (90) days of the filing of
such petition under the Bankruptcy Code; and (iv) to give Landlord at
least sixty (60) days prior written notice of any proceeding relating
to any assumption of this Lease; and (v) to give at least sixty (60)
days prior written notice of any abandonment of the Premises and such
abandonment to be deemed a rejection of this Lease; and (vi) to do all
other things of benefit to Landlord otherwise required under the
Bankruptcy Code; and (vii) to be deemed to have rejected this Lease in
the event of the failure to comply with any of the above; and (viii)
to have consented to the entry of an order by an appropriate United
States Bankruptcy Court providing all of the above, waiving notice and
hearing of the entry of same.
(b) No default of this Lease by Tenant, either prior to or subsequent to
the filing :)f such a petition, shall be deemed to have been waived
unless expressly done so in writing by Landlord.
(c) It is understood and agreed that this is a Lease of non-residential
real property as such a Lease is described or referred to in the
Bankruptcy Code.
(d) Included within and in addition to any other conditions or obligations
imposed upon Tenant or its successor in the event of assumption and/or
assignment are the following: (i) the cure of any monetary defaults
and the reimbursement of pecuniary loss within not more than thirty
(30) days of assumption and/or assignment; and (ii) the deposit of an
additional sum equal to three (3) months' Rent; and (iii) the use of
the Premises as set forth in this Lease; and (iv) the prior written
consent of any mortgagee to which this Lease has been assigned as
collateral security; and (v) the Premises, at all times, remain a
single store and no physical changes of any kind may be made to the
Premises unless in compliance with the applicable provisions of this
Lease.
ARTICLE XV.
ACCESS BY LANDLORD
Section 15.1. Right of Entry.
Landlord or Landlord's agents shall have the right to enter the Premises at
all times to examine the same and to show them to prospective purchasers or
tenants of the building, and to make such repairs, alterations, improvements or
additions as Landlord may deem necessary or desirable, and Landlord shall be
14
allowed to take all material into and upon said Premises that may be required
therefor without the same constituting an eviction of Tenant, in whole or in
part, and the Rent reserved shall be in no wise abated while said repairs,
alternations, improvements or additions are being made, by reason of loss or
interruption of business of Tenant, or otherwise. During the three (3) months
prior to the expiration of the term of this Lease or any renewal term thereof,
Landlord may exhibit the Premises to prospective tenants or purchasers, and
place upon the Premises the usual notices "To Let," "For Rent" or "For Sale,"
which notices Tenant shall permit to remain thereon without molestation or
protest. If Tenant shall not be personally present to open and permit an entry
into said Premises at any time when, for any reason, including notice from
Police or Fire of the necessity of access, entry therein shall be necessary or
permissible, by Landlord or Landlord's agents may be made by any means,
including forcibly entering the same, without rendering Landlord or such agents
liable therefor, and without in any manner affecting the obligations and
covenants of this Lease. This emergency access shall be available
notwithstanding the violation of any security system that has been installed by
Tenant. Nothing herein contained, however, shall be deemed or construed to
impose upon landlord any obligation, responsibility or liability whatsoever for
the care, maintenance or repair of the building or any part thereof, except as
otherwise herein specifically provided.
Section 15.2. Excavation.
If an excavation shall be made upon land adjacent to the Premises, or shall
be authorized to be made, Tenant shall afford to the person causing or
authorized to cause such excavation license to enter upon the Premises for the
purpose of doing such work as Landlord shall deem necessary to preserve the wall
or the building of which the Premises form a part from injury or damage and to
support the same by proper foundations, without any claim for damages or
indemnification against Landlord or diminution or abatement of Rent.
ARTICLE XVI.
TENANT'S PROPERTY
Section 16.1. Taxes on Leasehold.
Tenant shall be responsible for and shall pay before delinquency all city,
county or state taxes assessed during the term of this Lease against any
leasehold interest or personal property of any kind, owned by or placed in, upon
or about the Premises by Tenant.
Section 16.2. Loss and Damage.
Landlord shall not be responsible for any damage to the property of Tenant
or of others located on the Premises, nor for the loss of or damage to any
property of Tenant or of other by theft or otherwise, unless caused by acts or
omissions of Landlord. Landlord shall not be liable for any injury or damage to
persons or property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water, rain or snow or leaks from any part of the Premises or from
the pipes, appliances or plumbing works or from the roof, street or sub-surface
or from any other place or by dampness or by any other cause or nature
whatsoever. Landlord shill not be liable for any such damage caused by other
persons in the Premises, occupants of adjacent property, or the public, or
caused by operations in construction of any private, public or quasi-public
work.
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Section 16.3. Notice by Tenant.
Tenant shall give immediate notice to Landlord in case of fire or accident
in the Premises or in the building of which the Premises are a part, or of
defects therein or in any fixtures or equipment.
ARTICLE XVII.
NOTICES
Section 17.1. Sending of Notices.
Any notice, request, demand, approval or consent given or required to be
given under this Lease shall be in writing and shall be deemed to have been
given on the third (3rd) day following the day on which the same shall have been
mailed by United States registered or certified mail, return receipt requested,
with all postal charges prepaid, addressed, if intended for Landlord, to
Landlord, I 00 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxx, XX 00000 or, if intended for
Tenant, to Tenant, Armitec Inc. (owner) and Xxxx Xxxxx Inc. Either party may, at
any time, change its address for the above purposes by sending a notice to the
other party stating the change and setting forth the new address.
Section 17.2. Notice to Mortgagees.
If any Mortgagee shall notify Tenant that it is the holder of a Mortgage
affecting the Premises, no notice, request or demand thereafter sent by Tenant
to Landlord shall be effective unless and until a copy of the same shall also be
sent to such Mortgagee to such address as such Mortgagee shall designate.
ARTICLE XVIII.
MISCELLANEOUS
Section 18.1. Excuse of Landlord's Performance.
Anything in this Agreement to the contrary notwithstanding, providing such
cause is not due to the willful act or gross neglect of Landlord, Landlord shall
not deem in default with respect to the performance of any of the terms,
covenants and conditions of this Lease if the same shall be due to any strike,
lock-out, civil commotion, war-like operation, invasion, rebellion, hostilities,
military or usurped power, sabotage, governmental regulations or controls,
inability to obtain any material, service or financing, through act of God or
other cause beyond the control of Landlord.
Section 18.2. Excuse of Tenant's Performance.
Anything in this Agreement to the contract notwithstanding, providing such
cause is not due to the willful act or gross neglect of Tenant, Tenant shall not
be deemed in default with respect to the performance of any of the terms,
covenants and conditions of this Lease if the same shall be due in any strike,
lock-out, civil commotion, war-like operation, invasion, rebellion, hostilities,
military or usurped power, sabotage, governmental regulations; or controls,
inability to obtain any material, service or financing, through act of God or
other cause beyond the control of Tenant.
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Section 18.3. Recording.
Tenant shall not record this Lease without the written consent of Landlord,
and any attempt on Tenant's part to do so without Landlord's consent first
obtained in writing shall constitute an immediate Event of Default by Tenant
hereunder, entitling Landlord to pursue any and all the remedies available to
Landlord in such event.
Section 18.4. Memorandum of Lease.
The parties hereby agree that, upon the request of either party, each will
execute, acknowledge and deliver a short form or memorandum of this Lease in
recordable form. Recording, filing and like charges and any stamp, charge for
recording, transfer or other tax shall be paid by the party requesting execution
of the same.
Section 18.5. Remedies Cumulative.
No reference to any specific right or remedy shall preclude Landlord from
exercising any other right or from having any other remedy or from maintaining
any action to which it ma, otherwise be entitled at law or in equity. No failure
by Landlord to insist upon the strict performance of any agreement, term,
covenant or condition hereof, or to exercise any right or remedy consequent upon
a breach thereof, and no acceptance of full or partial rent during the
continuance of any such breach, shall constitute a waiver of any such breach,
agreement, term, covenant or condition. No waiver by Landlord of any breach by
Tenant under this Lease shall affect or alter this Lease in any way whatsoever.
Section 18.6. Successors and Assigns.
This Lease and the covenants and conditions herein contained shall inure to
the benefit of and be binding upon Landlord, its successors and assigns, and
shall be binding upon Tenant, its successors and assigns and shall insure to the
benefit of Tenant and only such assigns of Tenant to whom the assignment of this
Lease by Tenant has been consented to by Landlord. Upon ally sale or other
transfer by Landlord of its interest in the Premises, Landlord shall be relived
of any obligation under this Lease occurring thereafter.
Section 18.7. Compliance with Laws and Regulations.
Tenant, at its sole cost and expense, shall comply with and shall cause the
Premises to comply with (a) all federal, state, county, municipal and other
governmental statutes, laws, rules, orders, regulations and ordinances affecting
the Premises or any part thereof, or the use thereof, including those which
require the making of any structural, unforeseen or extraordinary changes,
whether or not any such statutes, laws, rules, orders, regulations or ordinances
which may be hereafter enacted involve a change of policy on the part of the
governmental body enacting the same, and (b) all rules, orders and regulations
of the National Board of Fire Underwriters of Landlord's fire insurance rating
organization or other bodies exercising similar functions in connection with the
prevention of fire or the correction of hazardous condition, which apply to the
Premises.
Section 18.8. Broker's Commission.
Each of the parties represents and warrants that there are no claims for
brokerage commissions or finder's fees in connection with the execution of this
Lease, and agrees to indemnify the other against, and hold it harmless from, all
liability arising from an, such claim including, without limitation, the cost of
counsel fees in connection therewith.
17
Section 18.9. Accord and Satisfaction.
No payment by Tenant or receipt by Landlord of a lesser amount that the
monthly Rent herein stipulated shall be deemed to be other than on account of
the earliest stipulated Rent, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as Rent be deemed an
accord and satisfaction, and Landlord's right to recover the balance of such
Rent or pursue any other remedy in this Lease provided.
Section 18.10. No Joint Venture.
Any intention to create a joint venture or partnership relation between the
parties hereto is hereby expressly disclaimed.
Section 18.11. No Modification.
This writing is intended by the Parties as a final expression of their
agreement and as a complete and exclusive statement of the terms thereof, all
negotiations, considerations, and representations between the parties having
been incorporated herein. No course of prior dealings between the parties or
their officers, employees, agents and affiliates shall be relevant or admissible
to supplement, explain or vary any of the terms of this Lease. Acceptance of, or
acquiescence in, a course of performance rendered under this or any prior
agreement between the parties or their affiliates shall not be relevant or
admissible to determine the meaning of any of the terms of this Lease. No
representations, understandings or agreements have been made or relied upon in
the making of this Lease other than those specifically set forth herein. This
Lease can be modified only by a writing signed by the party against whom the
modification is enforceable.
Section 18.12. Severability.
If any term or provision, or any portion thereof, of this Lease, or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term, covenant or condition to person or circumstances other than those as
to which it is held invalid or unenforceable shall not be affected and each term
covenant and condition of this Lease shall be valid and enforced to the fullest
extent permitted by law. Furthermore, each covenant, agreement, obligation and
other provision contained in this Lease is, and shall be deemed and construed a
separate and independent covenant of the party bound by, undertaking or making
the same, and not dependent on any other provisions of this Lease unless
expressly so provided.
Section 18.13. Third Party Beneficiary.
Nothing contained in this Lease shall be construed so as to confer upon any
other party the rights of a third party beneficiary except rights contained
herein for the benefit of the Mortgagee.
Section 18.14. Corporate Tenants.
The persons executing this Lease on behalf of Tenant hereby covenant and
warrant that: Tenant is duly constituted corporation qualified to do business in
Pennsylvania; all Tenant's franchise and corporate taxes have been paid to date;
all future forms, reports, fees and other documents necessary for Tenant to
comply with applicable laws will be filed by `Tenant when due; and such persons
are duly authorized by the Board of Directors of such of such corporation to
execute and deliver this Lease on behalf of the corporation.
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Section 18.15. Applicable Law.
This Lease and the rights and obligations of the parties hereunder shall be
construed in accordance with the laws of the state of Pennsylvania.
Section 18.16. Performance of Landlord's Obligations by Mortgagee.
Tenant shall accept performance of any of Landlord's obligations hereunder
by any Mortgagee.
Section 18.17. Limitation of Liability.
Anything contained in any provision of the Lease to the contrary
notwithstanding, if Landlord defaults in any covenant or undertaking to be
performed by Landlord hereunder, neither Tenant nor any person claiming under,
by or through Tenant shall be entitled to take any action to procure a money
judgment in personam against (a) any person or entity who is a shareholder,
officer or employee in Landlord, or (b) any of the respective successors and
assigns, heirs or personal representatives of such person or entity; provided,
that nothing in the provisions of this Section 18.17 shall be deemed to alter or
impair the enforceability of rights and remedies of the Tenant and any person
claiming under, by or through Tenant hereunder or under any such provisions
against the Landlord itself, except that any such money judgment obtained
against Landlord may be executed only against the Landlord and Landlord's equity
interest in the Premises or Landlord's Building and not against (a) any general
partner in Landlord, (b) any of the respective heirs, personal representatives,
successors and assigns of any such general partner, or (c) any of the assets of
any such general partner or of their respective heirs, personal representatives,
successors and assigns.
IN WITNESS WHEREAS, the parties have hereto intending to be legally bound
hereby having executed this Lease as of the day and year first above written.
Section 2.2. Renewal
--------------------
1/l/2004 - 12/31/2004 $112,520.04 $9,376.67/mo. $1.94/sq. ft.
1/l/2005 - 12/31/2005 $114,840.00 $9,570.00/mo. $1.98/sq. ft.
1/l/2006 - 12/31/2006 $118,320.00 $9,860.00/mo. $2.04/sq. ft,
Section 3.1 Rent Payable
------------------------
Tenant agrees to pay $40,000 in back rent at date of lease commencement and in
addition to monthly rent of $8,941.67, will pay $5,740.93 per month toward back
rent for a total of $14,682.60/month. Payments of $14,682.60 will continue
monthly until the total of $177,782.33 in back rent is paid in full. If at any
time during the term of this lease a payment is missed, unless agreed upon
between landlord and tenant, eviction procedures will be started.
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ACKNOWLEDGMENT OF LANDLORD
COMMONWEALTH OF PENNSYLVANIA :
: ss.
COUNTY OF LUZERNE :
ON THIS, the ____ day of ____________, ____, before me, a Notary Public in
and for said county, personally appeared ________________________, who
acknowledged himself to be the ____________ of Xxxxxxx Realty, a division of
Xxxxxxx Art, Inc., and that he as such ____________ being authorized to do so,
executed the foregoing instrument for the purposes therein contained by signing
the name of Xxxxxxx Realty, a division of Xxxxxxx Art, Inc. by himself as
____________. WITNESS my hand and official seal the day and year aforesaid.
____________________________
Notary Public
(Seal)
My Commission Expires:
ACKNOWLEDGMENT OF TENANT
COMMONWEALTH OF PENNSYLVANIA :
: ss.
COUNTY OF LUZERNE :
ON THIS, the ____ day of ____________, ____, before me, a Notary Public in
and for said county, personally appeared ________________________, who
acknowledged himself to be the ____________ of ________________________ and that
he as such ____________, being authorized to do so, executed the foregoing
instrument for the purposes therein contained by signing the name of
________________________ by himself as. WITNESS my hand and official seal the
day and year aforesaid.
_____________________________
Notary Public
(Seal)
My Commission Expires:
