Exhibit 10.8
Execution Copy
LEASE
DATED: As of July 8, 1988
LANDLORD: WESTINGHOUSE CREDIT CORPORATION
TENANT: ALLOY RODS CORPORATION
PREMISES: Hanover, Pennsylvania
TABLE OF CONTENTS
Section Page
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1. DEMISE; TITLE; CONDITION 1
2. TERM 2
3. RENT 2
4. USE 3
5. NET LEASE; NONTERMINABILITY 3
6. TAXES AND OTHER CHARGES; LAW AND AGREEMENTS 4
7A. LEASEHOLD MORTGAGES 6
7B. LIENS 10
8. INDEMNIFICATION; FEES AND EXPENSES 10
9. HAZARDOUS WASTE 11
10. MAINTENANCE AND REPAIR 12
11. ALTERATIONS AND ADDITIONS AND CONSTRUCTION
OF NEW BUILDINGS BY TENANT 13
12. CONDEMNATION AND CASUALTY 17
13. INSURANCE 21
14. FINANCIAL COVENANTS AND CERTIFICATES 23
15. OPTION TO PURCHASE LEASED PROPERTY 24
16. PURCHASE PROCEDURE 25
17. INVESTMENT CREDIT 26
18. QUIET ENJOYMENT 26
19. SURVIVAL 27
20. ASSIGNMENT AND SUBLETTING 27
21. ADVANCES BY LANDLORD; LATE PAYMENTS 28
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LEASE dated as of July 8, 1988, between WESTINGHOUSE CREDIT CORPORATION
("Landlord"), a Delaware corporation having an office at One Oxford Centre, 000
Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, and ALLOY RODS CORPORATION
("Tenant"), a Delaware corporation having an xxxxxx xx Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxx 00000.
Landlord and Tenant agree as follows (capitalized terms not otherwise
defined when they first appear are defined in Article 30 hereof):
1. DEMISE; TITLE; CONDITION
In consideration of the agreements and provisions of this Lease
hereinafter stipulated to be observed and performed by Tenant, Landlord hereby
demises and lets to Tenant, and Tenant hereby leases from Landlord, subject to
the terms and conditions hereinafter set forth, for the term described in
Article 2 hereof, the parcels of land described in Schedule A annexed hereto
(together with all buildings and improvements located thereon and all easements
and appurtenances thereto, individually the "Parcel"; collectively, the "Leased
Property").
The Leased Property is demised and let in its present condition without
representation or warranty by Landlord, subject to (a) the rights of any parties
in possession thereof, (b) the state of the title thereto existing at the time
Landlord acquired title to the Leased Property, (c) any state of facts which an
accurate survey or physical inspection might show, (d) all applicable laws,
rules, regulations, ordinances and restrictions now in effect, and (e) any
violations of such laws, rules, regulations, ordinances and restrictions which
may exist at the commencement of the Term of this Lease. Tenant has examined the
Leased Property, and Landlord's title thereto, and has found the same to be
satisfactory.
Landlord has not made an inspection of the Leased Property and makes no
representation or warranty, express or implied, with respect to same or the
location, use description, design, merchantability, fitness for use for a
particular purpose, condition or durability thereof, or as to quality of the
material or workmanship therein; and all risks incidental to the Leased Property
shall be borne by Tenant. In the event of any defect or deficiency of any nature
in the Leased Property or any fixture or other item constituting a portion
thereof, whether patent or latent, neither Landlord nor Landlord's mortgagee
shall have any responsibility or liability with respect thereto. THE PROVISIONS
OF THIS PARAGRAPH HAVE BEEN NEGOTIATED AND ARE INTENDED TO BE A COMPLETE
EXCLUSION AND NEGATION BY LANDLORD OF, AND LANDLORD DOES HEREBY DISCLAIM ANY AND
ALL WARRANTIES BY LANDLORD EXPRESS OR IMPLIED, WITH RESPECT
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TO THE LEASED PROPERTY OR ANY FIXTURE OR OTHER ITEM CONSTITUTING A PORTION
THEREOF, WHETHER ARISING PURSUANT TO THE UNIFORM COMMERCIAL CODE OR ANY OTHER
LAW NOW OR HEREAFTER IN EFFECT OR OTHERWISE.
This Lease is and shall be superior to all mortgages, which now or
hereafter affect the Leased Property, and to all renewals, modifications,
consolidations, replacements, and extensions thereof. This clause shall be
self-operative and no further instrument of superiority shall be required.
2. TERM
(a) Subject to the provisions hereof, Tenant shall have and hold the
Leased Property for a term which shall begin on the Commencement Date set forth
in Schedule B annexed hereto, and end on the Termination Date set forth in
Schedule B annexed hereto (the "Basic Term"), unless sooner terminated or
extended as hereinafter provided.
(b) Tenant may elect to extend the Term of this Lease for two
additional successive terms of five (5) years each as set forth on Schedule B
annexed hereto ("Extended Terms"). Tenant shall exercise its option to extend
the Term for the first five year renewal term (the "First Extended Term") by
giving notice of such election to Landlord not less than one (1) year prior to
the expiration of the Basic Term. Tenant shall exercise its option to extend the
Term for the second five year renewal term (the "Second Extended Term") by
giving notice of such election to Landlord not less than one (1) year prior to
the expiration of the First Extended Term. Each notice of election to extend
given in accordance with the provisions of this Article 2 shall automatically
extend the Term of this Lease for one Extended Term without further writing.
However, either party, upon request of the other, will execute and acknowledge,
in form suitable for recording, an instrument confirming any such extension.
3. RENT
(a) Tenant shall pay to Landlord, in lawful money of the United States,
the rent provided for in Schedule B annexed hereto ("Basic Rent") by wire
transfer of immediately available funds to an account designated by Landlord.
Basic Rent shall be payable by Tenant in installments in the amounts set forth
in Schedule B and shall be due and payable on the dates ("Installment Payment
Dates") set forth in Schedule B. If any Installment Payment Date falls on a day
which is not a Business Day, Basic Rent shall be due and payable on the next
succeeding Business Day without interest or penalty if paid on such Business
Day.
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(b) All amounts which Tenant is required to pay or discharge pursuant
to this Lease in addition to Basic Rent (including any amount payable as the
purchase price for the Leased Property pursuant to any provision hereof and any
amount payable as liquidated damages pursuant to paragraph (c) of Article 22
hereof) together with any interest or penalty which may be added for late
payment thereof, shall constitute additional rent hereunder ("Additional Rent").
In the event of any failure by Tenant to pay or discharge any such amount, or in
the event of any failure by Tenant to pay any amount payable as the purchase
price for the Leased Property pursuant to any provision hereof or as liquidated
damages pursuant to paragraph (c of Article 22 hereof, Landlord shall have all
rights, powers and remedies provided for herein or by law or otherwise in the
case of nonpayment of Basic Rent. Tenant may pay Additional Rent directly to the
person entitled thereto.
(c) In the event that this Lease terminates with respect to one parcel,
but not the entire Leased Property, under the provisions of section (c) of
Article 12 of this Lease, Basic Rent shall be reduced in a manner so as to
preserve Landlord's Yield (as defined in Article 30 hereof).
4. USE
Tenant may use each of the parcels comprising the Leased Property as an
office, lab or manufacturing facility.
5. NET LEASE; NONTERMINABILITY
(a) This Lease is a "net lease" and Tenant shall pay all Basic Rent,
Additional Rent, and all other payments hereunder required to be made by Tenant
without notice, demand, counterclaim, set-off, deduction, or defense, and
without abatement, suspension, deferment, diminution or reduction, free from any
charges, assessments, impositions, expenses or deductions of any and every kind
or nature whatsoever. All costs, expenses and obligations of every kind and
nature whatsoever relating to the Leased Property and the appurtenances thereto
and the use and occupancy thereof which may arise or become due during or with
respect to the period constituting the term hereof shall be paid by Tenant, and
Landlord shall be indemnified and saved harmless by Tenant from and against the
same. Tenant assumes the sole responsibility for the condition, use, operation,
maintenance, underletting and management of the Leased Property, and Tenant
shall indemnify and hold Landlord harmless from and against any and all
liability, costs, damages, losses and claims (including reasonable attorneys'
fees) in respect thereof, and Landlord shall have no responsibility in respect
thereof and shall have no liability for damage to the property of Tenant or any
subtenant of Tenant on any account or
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for any reason whatsoever. Without limiting the generality of the foregoing,
during the Term of this Lease Tenant shall perform all of the obligations of the
sublandlord under any subleases affecting all or any part of the Leased Property
which Tenant may hereafter enter into as sublandlord.
(b) Except as otherwise expressly provided in paragraph (c) of Article
12 and clause (ii) of paragraph (b) of Article 22 hereof, this Lease shall not
terminate, nor shall Tenant have any right to terminate this Lease or to be
released or discharged from any obligations or liabilities hereunder for any
reason, including without limitation, any damage to or destruction of the Leased
Property; any restriction, deprivation (including eviction) or prevention of, or
any interference with, any use or the occupancy of the Leased Property (whether
due to any defect in or failure of Landlord's title to the Leased Property or
otherwise); any condemnation, requisition or other taking or sale of the use,
occupancy or title to the Leased Property; any action, omission or breach on the
part of Landlord under this Lease or under any other agreement between Landlord
and Tenant; the inadequacy or failure of the description of the Leased Property
to demise and let to Tenant the property intended to be leased hereby; Tenant's
acquisition of ownership of the Leased Property or any sale or other disposition
of the Leased Property; the impossibility or illegality of performance by
Landlord or Tenant or both; any action of any court, administrative agency or
other governmental authority; or any other cause, whether similar or dissimilar
to the foregoing, any present or future law notwithstanding.
(c) Tenant will remain obligated under this Lease in accordance with
its terms, and will not take any action to terminate (except in accordance with
the provisions of paragraph (c) of Article 12), rescind or avoid this Lease for
any reason, notwithstanding any bankruptcy, insolvency, reorganization,
liquidation, dissolution or other proceeding affecting Landlord or any assignee
of Landlord, or any action with respect to this Lease which may be taken by any
receiver, trustee or liquidator or by any court. Tenant waives all rights at any
time conferred by statute or otherwise to quit, terminate or surrender this
Lease or the Leased Property, or to any abatement or deferment of any amount
payable by Tenant hereunder, or for damage, loss or expense suffered by Tenant
on account of any cause referred to in this Article 5 or otherwise.
6. TAXES AND OTHER CHARGES; LAW AND AGREEMENTS
(a) Tenant shall pay and discharge, on or before the last day upon
which the same may be paid without interest or penalty, all taxes, including any
transaction privilege tax based upon or measured by gross rentals or receipts
from the Leased Property, assessments, levies, fees, water and sewer
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rents and other governmental and similar charges, general and special, ordinary
or extraordinary, and any interest and penalties thereon, which are levied or
assessed during the Term of this Lease (including all of the taxes, assessments,
fees, water and sewer rents and other governmental charges for the year in which
this Lease is executed which are now a lien but not yet delinquent) against (i)
Landlord and which relate to Landlord's ownership of the Leased Property, the
use and occupancy of the Leased Property or the transactions contemplated by
this Lease, (ii) Landlord's mortgagee and which relate to Landlord's mortgagee's
interest in the Leased Property, the use and occupancy of the Leased Property or
the transactions contemplated by this Lease, (iii) the Leased Property or the
interest of Tenant or Landlord therein, (iv) Basic Rent, Additional Rent or any
other amount payable by Tenant hereunder, (v) this Lease or the interest of
Tenant or Landlord hereunder, (vi) the use, occupancy, construction, repair or
rebuilding of the Leased Property or any portion thereof, or (vii) gross
receipts from the Leased Property. If any tax or assessment levied or assessed
against the Leased Property may legally be paid in installments, Tenant shall
have the option to pay such tax or assessment in installments. Nothing in this
Lease shall require payment by Tenant of any franchise, estate, inheritance,
succession, transfer, net income or profits taxes of Landlord, unless such tax
is in lieu of or a substitute for any other tax or assessment upon or with
respect to the Leased Property, which, if such other tax or assessment were in
effect, would be payable by Tenant hereunder. Tenant shall furnish to Landlord,
within sixty (60) days of the final due date of such tax or assessment for each
of the Parcels, proof of the payment of any such tax, assessment, fee, rent or
charge which is payable by Tenant. Such taxes, assessments, fees, water and
sewer rents and other governmental charges shall be apportioned between Landlord
and Tenant as of the date on which this Lease terminates or expires.
(b) Tenant shall pay all charges for utility, communication and other
services rendered or used during the Term of this Lease on or about the Leased
Property, whether or not payment therefor shall become due after the Term of
this Lease.
(c) Tenant shall at all times during the Term of this Lease, at
Tenant's own cost and expense, perform and comply with all laws, rules, orders,
ordinances, regulations and requirements now or hereafter enacted or
promulgated, of every government and municipality having jurisdiction over the
Leased Property and of any agency thereof, relating to the Leased Property, or
the improvements thereon, or the facilities or equipment thereon or therein, or
the streets, sidewalks, vaults, vault spaces, curbs and gutters adjoining the
Leased Property, or the appurtenances to the Leased Property, or the franchises
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and privileges connected therewith, whether or not such laws, rules, orders,
ordinances, regulations or requirements so involved shall necessitate structural
changes, improvements, interference with use and enjoyment of the Leased
Property, replacements or repairs, extraordinary as well as ordinary, and Tenant
shall so perform and comply, whether or not such laws, rules, orders,
ordinances, regulations or requirements shall now exist or shall hereafter be
enacted or promulgated, and whether or not such laws, rules, orders, ordinances,
regulations or requirements can be said to be within the present contemplation
of the parties hereto.
(d) Tenant shall have the right to contest, by appropriate legal
proceedings, any tax, charge, levy, assessment, lien or other encumbrance,
and/or any law, rule, order, ordinance, regulation or other governmental
requirement affecting the Leased Property, and to postpone payment of or
compliance with the same during the pendency of such contest, provided that (i)
Tenant shall immediately furnish a bond, deposit (to be deposited in an
interest-bearing account) or such similar security as Landlord or Landlord's
mortgagee may reasonably require in an amount sufficient to assure such payment
and/or compliance in full; (ii) Tenant shall not postpone the payment of any
such tax, charge, levy, assessment, lien or other encumbrance for such length of
time as shall permit the Leased Property, or any lien thereon created by such
item being contested, to be sold by federal, state, county or municipal
authority for the non-payment thereof; and (iii) Tenant shall not postpone
compliance with any such law, rule, order, ordinance, regulation or other
governmental requirement if Landlord will thereby be subject to civil liability
or criminal prosecution, or if any municipal or other governmental authority
shall commence a process according to applicable law to carry out any work to
comply with the same or to foreclose or sell any lien affecting all or part of
the Leased Property which shall have arisen by reason of such postponement or
failure of compliance.
(e) Tenant will pay and discharge, and indemnify and reimburse Landlord
for its payment or discharge of, all taxes and other charges required to be paid
and discharged by Landlord under any mortgage of Landlord's interest in the
Leased Property.
7A. LEASEHOLD MORTGAGES
(a) Tenant may not grant a mortgage of its leasehold interest
hereunder, except that Landlord will permit Tenant to grant to Pittsburgh
National Bank (hereinafter referred to as "Leasehold Mortgagee") one leasehold
mortgage encumbering Tenant's leasehold estate hereunder (the "PNB Leasehold
Mortgage") on terms and conditions reasonably satisfactory to Landlord. If
Tenant shall mortgage its leasehold interest
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hereunder to Leasehold Mortgagee, and if Leasehold Mortgagee shall forward to
Landlord an executed counterpart of the PNB Leasehold Mortgage in force proper
for record, then, until the time, if any, that the PNB Leasehold Mortgage shall
be satisfied of record or Leasehold Mortgagee shall give to Landlord written
notice that the PNB Leasehold Mortgage has been satisfied:
(i) No action or agreement hereafter taken or entered into by Tenant to
cancel, surrender, or modify this Lease shall be binding upon Leasehold
Mortgagee or affect the lien of the PNB Leasehold Mortgage, without the prior
written consent of Leasehold Mortgagee.
(ii) If Landlord shall give any notice of default (hereinafter referred
to as a "Notice") to Tenant pursuant to Article 22 and 23 hereof, Landlord shall
at the same time give a copy of each such Notice to Leasehold Mortgagee at the
address theretofore designated by Leasehold Mortgagee. Such copies of Notices
shall be sent by registered or certified mail, and shall be deemed given at
the time such copy is deposited in a United States Post Office with postage
charges prepaid, enclosed in a securely sealed envelope addressed to Leasehold
Mortgagee. No Notice given by Landlord to Tenant shall be binding upon or affect
Leasehold Mortgagee unless a copy of said Notice shall be given to Leasehold
Mortgagee pursuant to this subdivision (ii). In the case of an assignment of the
PNB Leasehold Mortgage or change in address of Leasehold Mortgagee, said
assignee or Leasehold Mortgagee, by written notice to Landlord, may change the
address to which such copies of Notices are to be sent. Landlord shall not be
bound to recognize any assignment of the PNB Leasehold Mortgage unless and until
Landlord shall be given written notice of such assignment and the name and
address of the assignee, and thereafter such assignee shall be deemed to be
"Leasehold Mortgagee" under this Article 7A. If the PNB Leasehold Mortgage is
held by more than one person, corporation or other entity, no provision of this
Lease requiring Landlord to give a Notice or copy of a Notice to Leasehold
Mortgagee shall be binding upon Landlord unless and until all of said holders
shall designate in writing one of their number to receive all such Notices and
copies of Notices and shall have given to Landlord an original executed
counterpart of such designation in form proper for record.
(iii) Subject to subdivision (iv) of this Article 7A, Leasehold
Mortgagee shall have the right to perform any term, covenant, condition or
agreement and to remedy any default by Tenant hereunder, and Landlord shall
accept such performance by Leasehold Mortgagee with the same force and effect as
if furnished by Tenant; provided, however, that Leasehold Mortgagee shall not
thereby or hereby be subrogated to the rights of Landlord.
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(iv) If Tenant shall fail to make any payment of Basic Rent, Additional
Rent or other sums due hereunder when due (a "Payment Default"), and provided
that Landlord shall give notice of such default to Tenant, then Landlord shall
also give notice of such default to Leasehold Mortgagee, as set forth above, and
Leasehold Mortgagee shall have thirty (30) days after the date of such notice to
cure such Payment Default, provided, however, that Leasehold Mortgagee shall not
be permitted to cure any such Payment Default if it shall have previously cured
six (6) consecutive or eight (8) total such Payment Defaults, unless Leasehold
Mortgagee has initiated a foreclosure proceeding with respect to the PNB
Leasehold Mortgage.
(v) In the case of a default by Tenant in the performance or observance
of any term, covenant, condition or agreement on Tenant's part to be performed
under this Lease, other than a Payment Default, and provided that Landlord shall
have given notice of such default to Tenant, then Landlord shall also give
notice of such default to Leasehold Mortgagee, as set forth above, and if such
default is of such a nature that the same cannot practicably be cured by
Leasehold Mortgagee without taking possession of the Leased Property, or if such
default is of such a nature that the same in not susceptible of being cured by
Leasehold. Mortgagee, then Landlord shall not serve a notice of election to
terminate this Lease pursuant to Article 22 hereof, or otherwise terminate the
leasehold estate of Tenant hereunder by reason of such default, if and so long
as:
(1) in the case of a default which cannot practicably be cured
by Leasehold Mortgagee without taking possession of the Leased
Property, Leasehold Mortgagee shall deliver to Landlord, prior to the
date which is thirty (30) days after the date on which Landlord shall
otherwise be entitled to give notice of election to terminate this
Lease, a written instrument wherein Leasehold Mortgagee gives to
Landlord its unconditional, undertaking that it will cure such default
and that, if this Lease thereafter is terminated prior to the curing of
such default, Leasehold Mortgagee shall pay to Landlord the cost of
curing such default, if Leasehold Mortgagee be other than a life
insurance company, bank or trust company having a net worth in excess
of $25,000,000 such undertaking shall be accompanied by security,
reasonably satisfactory to Landlord, sufficient to insure payment of
the cost of curing of such default, and thereafter- Leasehold Mortgagee
shall proceed diligently to obtain possession of the Leased Property as
mortgagee (including possession by a receiver), and, upon obtaining
such possession, shall proceed
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diligently to cure such default in accordance with the guaranty set
forth in this clause 1; and
(2) in the case of a default which is not susceptible of being
cured by Leasehold Mortgagee, Leasehold Mortgagee shall institute
foreclosure proceedings and diligently prosecute the same to completion
(unless in the meantime Leasehold Mortgagee shall acquire Tenant's
estate hereunder, either in its own name or through a nominee, by
assignment in lieu of foreclosure).
Leasehold Mortgagee shall not be required to continue to proceed to
obtain possession, or to continue in possession as mortgagee, of the Leased
Property pursuant to clause (1) above, or to continue to prosecute foreclosure
proceedings pursuant to clause (2) above, if and when such default shall be
cured. Nothing herein shall preclude Landlord from exercising any of its rights
or remedies with respect to any other default by Tenant during any period of
such forbearance, but in such event Leasehold Mortgagee shall have all of the
rights and protections hereinabove provided for. If Leasehold Mortgagee, or its
nominee, or a purchaser at a foreclosure sale, shall acquire title to Tenant's
leasehold estate hereunder, and shall cure all defaults of Tenant hereunder
which are susceptible of being cured by Leasehold Mortgagee, or by said
purchaser, as the case may be, then the defaults of Tenant or of any prior
holder of Tenant's leasehold estate hereunder which are not susceptible of being
cured by Leasehold Mortgagee (or by said purchaser) shall no longer be deemed to
be defaults hereunder.
(vi) During any period that Landlord is forebearing from exercising its
right to terminate the Lease as herein provided for the benefit of the Leasehold
Mortgagee (or earlier if a bankruptcy, insolvency, reorganization, receivership,
moratorium or similar proceeding is voluntarily or involuntarily instituted by
or against Tenant), Landlord and Leasehold Mortgagee shall consult with one
another to determine (a) what action to take to maximize the value of (i) the
equipment, fixtures, inventory and other tangible assets in which Leasehold
Mortgagee has a security interest (the "PNB Collateral"), and (ii) the Leased
Property, and (b) the appropriate division of any proceeds resulting from the
sale of the Leased Property and/or the PNB Collateral. Notwithstanding the
foregoing, Landlord, Tenant and Leasehold Mortgagee acknowledge and agree that
no duty is imposed hereby on Landlord or Leasehold Mortgagee to agree to any
joint disposition of the Leased Property or the PUB Collateral and that any
agreement that ultimately may be reached in connection with the disposition of
the Leased Property and/or the PNB Collateral is for the sole benefit of
Landlord and Leasehold Mortgagee. Neither Landlord
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nor Leasehold Mortgagee shall have any liability to Tenant for failure to agree
upon a joint disposition of the Leased Property or the PNB Collateral.
In the event that Leasehold Mortgagee shall acquire the interest of
Tenant pursuant to a foreclosure of the PNB Leasehold Mortgage (or by assignment
of Lease consented to be Landlord in lieu of foreclosure), Leasehold Mortgagee
shall promptly undertake to obtain an assignee of its interest in the Lease,
which assignee must (i) agree to pay as rent hereunder the greater of (a) the
then fair market rent 'for industrially zoned property of like size and
condition in the County of York, Commonwealth of Pennsylvania and (b) the rent
set forth on Schedule B hereto, (ii) have a financial strength acceptable to
Landlord, and (iii) be otherwise acceptable to Landlord. Landlord shall have the
right (but not the obligations) to participate in the selection of any such
assignee.
7B. LIENS
Except for a lien permitted pursuant to Article 7A hereof, Tenant will
promptly, but no later than 30 days after the filing thereof, remove and
discharge of record, by bond or otherwise, any charge, lien, security interest
or encumbrance upon the Leased Property, which arises for any reason, including
ail liens which arise out of the possession, use, occupancy, construction,
repair or rebuilding of the Leased Property or by reason of labor or materials
furnished or claimed to have been furnished to Tenant for the Leased Property.
Nothing contained in this Lease shall be construed as constituting the consent
or request of Landlord, express or implied, to or for the performance by any
contractor, laborer, materialman, or vendor of any labor or services or for the
furnishing of any materials for any construction, alteration, addition, repair
or demolition of or to the Leased Property or any part thereof. Notice is hereby
given that Landlord will not be liable for any labor, services or materials
furnished or to be furnished to Tenant, or to anyone holding an interest in the
Leased Property or any part thereof through or under Tenant, and that no
mechanic's or other liens for any such labor, services or materials shall attach
to or affect the interest of Landlord in and to the Leased Property. In the
event of the failure of Tenant to discharge any charge, lien, security interest
or encumbrance as aforesaid, Landlord or Landlord's mortgagee may discharge such
items by payment or bond or both, and Tenant will repay to Landlord or
Landlord's mortgagee as the case may be, upon demand, any and all amounts paid
therefor, or by reason of any liability on such bond, and also any and all
incidental expenses, including reasonable attorneys' fees, incurred by Landlord
or Landlord's mortgagee, as the case may be, in connection therewith.
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8. INDEMNIFICATION; FEES AND EXPENSES
Tenant shall pay, and shall protect, defend, indemnify and hold
Landlord and Landlord's mortgagee harmless from and against all liabilities,
losses, damages, costs, expenses (including reasonable attorneys' fees and
expenses), claims, demands or judgments of any nature arising or alleged to
arise from or in connection with the following events: (i) any injury to, or the
death of, any person or any damage to or loss of property on the Leased Property
or growing out of or directly or indirectly connected with, or alleged to grow
out of or be directly or indirectly connected with, the ownership, use, nonuse,
occupancy, construction, repair or rebuilding of the Leased Property or
adjoining property, or resulting, or alleged to result, from the condition of
any thereof, other than any injury, death, damage or loss arising out of
Landlord's willful misconduct or gross negligence; (ii) violation, or alleged
violation, by Tenant of any provision of this Lease whether or not such
violation or alleged violation results in a violation of any provision of any
mortgage affecting Landlord's interest in the Leased Property, or of any law,
rule, regulation, ordinance or restriction as of the date hereof or hereafter in
effect and affecting the Leased Property, or of any lease or other agreement
relating to the Leased Property as of the date hereof or hereafter in effect to
which Tenant is a party or by which Tenant is bound, or of any agreement of
which Tenant has actual or constructive notice as of the date hereof, and which
is in effect as of the date hereof, affecting the Leased Property or the
ownership, use, nonuse, occupancy, construction, repair or rebuilding thereof or
of adjoining property; (iii) any tax (other than income taxes), assessment,
charge or levy assessed against Landlord or Landlord's mortgagee relating to the
Leased Property; (iv) any contest permitted by paragraph (d) of Article 6; or
(v) Tenant's failure to pay any Additional Rent or purchase price for the Leased
Property pursuant to any provision hereof or liquidated damages pursuant to
paragraph (c) of Article 22 hereof in accordance with the terms and provisions
hereof.
9. HAZARDOUS WASTE
Tenant warrants and represents to Landlord and Landlord's mortgagee
that (a) to the best of Tenant's knowledge, the Leased Property complies with
all existing federal, state and local environmental laws, rules and regulations
("Environmental Laws"), (b) except for violations referred to in that certain
letter agreement dated February 24, 1986 between
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the Commonwealth of Pennsylvania Department of Environment Resources Bureau of
Waste Management and Tenant, neither Tenant, nor to the best of Tenant's
knowledge, any prior owner of the Leased Property has used the Leased Property
in violation of any Environmental Laws, (c) except for violations referred to in
that certain letter agreement dated February 24, 1986 between the Commonwealth
of Pennsylvania Department of Environment Resources Bureau of Waste Management
and Tenant, no proceedings have been commenced, or orders of violation,
non-compliance or notice received, concerning any alleged violation of
Environmental Laws relating to the Leased Property, (d) except as disclosed in
that certain preliminary environmental evaluation and facility evaluation dated
May, 1988 prepared for Westinghouse Credit Corporation by S&ME Environmental
Services (the "Environmental Report"), to the best of Tenant's knowledge, the
Leased Property is free of hazardous waste, asbestos, contaminants, oil,
radioactive or other materials ("Hazardous Waste"), (e) except as disclosed in
the Environmental Report, Tenant has not used and, to the best of Tenant's
knowledge, the Leased Property has not been used to generate, manufacture,
refine, produce, store, handle, transfer, process or transport any Hazardous
Waste, (f) except as disclosed in the Environmental Report, Tenant shall not use
and shall prohibit the use of the Leased Property for the generation,
manufacture, refinement, production, storage, handling, transfer, processing or
transportation of Hazardous Waste, and (g) except as disclosed in the
Environmental Report, Tenant shall not permit any Hazardous Waste to be brought
onto the Leased Property, or if so brought or found or located thereon, shall
cause the same to be immediately removed in full compliance with all applicable
laws, ordinances, rules, codes or regulations, and Tenant's obligation to so
remove shall survive the Term of this Lease.
Tenant agrees to indemnify and hold harmless Landlord and each and all
of Landlord's shareholders, officers, directors, employees, attorneys and agents
and Landlord's mortgagee (collectively called the "Indemnitees") from and
against any and all losses, liability, suits, obligations, fines, damages,
judgments, penalties, claims, charges, costs and expenses (including, without
limitation, all fees and disbursements of counsel and consultants), which may be
suffered or incurred by, or asserted against, an Indemnitee and which arises
directly or indirectly out of or in connection with a violation of this Article
9.
The warranties and obligations of Tenant and the rights and remedies of
Landlord and each Indemnitee under this Article 9 are in addition to and not in
limitation of any other
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warranties, obligations, rights and remedies of Landlord provided in any other
agreement between Landlord and Tenant or otherwise at law or in equity.
10. MAINTENANCE AND REPAIR
Tenant will, at its cost and expense, keep and maintain the Leased
Property in good repair and condition and will make all structural and
non-structural, and ordinary and extraordinary changes, repairs and
replacements, foreseen or unforeseen, which may be required, whether or not
caused by its act or omission, to be made upon or in connection with the
improvements to the Leased Property in order to keep the same in good repair and
condition, including taking or causing to be taken action necessary to maintain
the Leased Property in compliance with any applicable laws or regulations,
including environmental laws or regulations. Landlord shall not be required to
maintain, alter, repair, rebuild or replace any improvements on the Leased
Property or to maintain the Leased Property, and Tenant expressly waives the
right to make repairs at the expense of Landlord pursuant to any law at any
time in effect.
11. ALTERATIONS AND ADDITIONS AND
CONSTRUCTION OF NEW BUILDINGS BY TENANT
(a) If Tenant complies with the requirements of paragraph (a) of this
Article 11, Tenant may, at its own cost and expense, make additions or
improvements to or alterations of the buildings and improvements now or
hereafter erected on the Leased Property ("Additional Improvements"), and may
also, at its own cost and expense, construct new buildings and improvements
("New Buildings") on any portion of the Leased Property which is not then
improved with a building or improvement. Notwithstanding the foregoing, Tenant
shall not make (i) any Additional Improvements or construct New Buildings in
violation of the terms of any restriction, easement, condition or covenant or
other matter affecting title to the Leased Property; or (ii) demolish any
building on the Leased Property without the prior written consent of Landlord.
The making of Additional Improvements and the construction of New Buildings
shall be subject to the following conditions:
(i) Title to any such Additional Improvements and New
Buildings (other than Additional Improvements which are removable
without material damage to the Leased Property and are not operational
components of the Leased Property) shall immediately vest in Landlord
and shall be a part of the Leased Property and subject to the terms,
covenants and conditions of this Lease;
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(ii) No Additional Improvements or New Buildings shall be undertaken
until Tenant shall have procured and paid for, so far as the same may be
required from time to time, all permits and authorizations of all municipal
and other governmental authorities having jurisdiction of the Leased
Property. Landlord shall join in the application for any such permit or
authorization whenever such joinder is necessary at Tenant's expense.
(iii) The making of the Additional Improvements and the construction
of the New Buildings shall be expeditiously completed in a good and
workmanlike manner and in compliance with all applicable laws, rules,
regulations, ordinances and covenants and restrictions then in effect;
(iv) The making of any Additional Improvements involving structural
changes estimated to have a cost (as defined in paragraph (d) of Article 11
hereof) in excess of $250,000, and the construction of any New Buildings,
shall be conducted under the supervision of an architect or engineer
employed or engaged and paid by Tenant and approved in writing by Landlord;
and neither shall be undertaken except in accordance with detailed plans
and specifications and cost estimates prepared by Tenant and approved by
Landlord. Landlord agrees that it will not unreasonably withhold or delay
its approval of said architect or engineer, or of said plans and
specifications and cost estimates;
(v) In the case of the making of Additional Improvements or the
construction of New Buildings, in either case having a cost in excess of
$250,000, or the total or material demolition of an existing building or
improvement, Tenant shall, prior to the commencement thereof, notify
Landlord and, upon request of Landlord furnish Landlord with a surety bond
in such amount and with such surety as shall be satisfactory to Landlord or
other security satisfactory to Landlord to assure the completion of such
Additional Improvements or the construction of such New Buildings as the
case may be;
(vi) The cost of any Additional Improvements or New Buildings shall be
paid by Tenant when due so that the Leased Property shall at all times be
free of liens; for labor and materials supplied or claimed to have been
supplied to the Leased Property;
(vii) No Additional Improvements shall, when completed, be of such a
character as to make any change
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in or diminish the character of the then existing buildings or improvements
erected upon the Leased Property, capable of being operated independently
of any other buildings or improvements; and, when completed, such buildings
and improvements shall have a fair market value at least equal to the fair
market value of the then existing buildings prior to the commencement of
construction of such Additional Improvements;
(viii) During the period when any Additional Improvements or New
Buildings are being made or constructed, Tenant shall maintain the
following insurance (in addition to the insurance required to be maintained
by Tenant pursuant to the provisions of Article 13 hereof): (A) completed
value builders risk insurance for the Leased Property, including all
building materials thereon, covering loss or damage from fire, lightning,
extended coverage perils, sprinkler leakage, vandalism, malicious mischief
and perils insured under a difference in conditions policy in an amount not
less than the cost, as estimated by Tenant, of the construction of the
Additional Improvements or New Buildings, as the case may be, and (B)
worker's compensation insurance covering the full statutory liability as an
employer of the contractor performing the work of making such Additional
Improvements or constructing said New Buildings;
(ix) Upon completion of the making of the Additional Improvements or
the construction of the New Buildings, if the cost thereof shall be in
excess of $250,000, Tenant shall furnish Landlord and Landlord's mortgagee
with (A) a new title insurance policy or an endorsement to the policy or
policies of title insurance which shall have been issued to Landlord and
Landlord's mortgagee insuring title to the Leased Property, increasing the
amount of the liability of the title company or title companies under said
policy or policies of title insurance by the amount of the cost of such
Additional Improvements or New Buildings, as the case may be, and (B) all
Certificates of Occupancy or other certificates required by applicable
laws;
(x) In the case of any Additional Improvement constituting or
including a change in the exterior walls of a building, and in the case of
the construction of New Buildings, Tenant shall furnish Landlord and
Landlord's mortgagee with an "as-built" survey showing the location of said
Additional Improvements or New Buildings, as the case may be,
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prepared by a licensed surveyor reasonably acceptable to Landlord,
certified to Landlord, Landlord's mortgagee, and the title insurance
company or companies issuing a policy or an endorsement pursuant to clause
(ix) of paragraph (a) of this Article 11; and
(xi) The making of Additional Improvements and the construction of New
Buildings shall not constitute gross income to Landlord for Federal Income
Tax purposes.
(b) Tenant may, at its own cost and expense, install or place or
reinstall or replace upon or remove from the Leased Property any trade fixtures,
machinery and equipment. Any such trade fixtures, machinery and equipment shall
not become the property of Landlord (other than replacements of fixtures,
machinery and equipment which are the property of Landlord, which replacement
shall also be the property of Landlord). Replacements of fixtures, machinery and
equipment which are property of the Landlord shall be of at least equal quality
to the replaced fixtures, machinery and equipment when the replaced items were
new.
(c) If the estimated costs and expenses for construction of Additional
Improvements on the Leased Property exceed $250,000, Tenant may request Landlord
to construct such Additional Improvements for Tenant and to finance such
construction itself or to arrange for the financing of such construction on
terms and conditions which shall be satisfactory to Landlord and Tenant. If
Tenant makes any such request, Landlord and Tenant shall negotiate in good faith
concerning the financing of construction of such Additional Improvements and any
amendment of this Lease appropriate in connection therewith including, but not
limited to, increasing the Basic Rent hereunder to cover said costs, having
regard to then existing economic, financial and market conditions and the terms
and conditions of Tenant's request. Tenant shall pay all costs and expenses
associated with the arrangement of any such financing, provided that Tenant may
request that such costs and expenses be included as part of the cost of such
Additional Improvements to be financed under this paragraph (c) of Article 11.
The parties hereto recognize that such amendment to this Lease, including
increases in Basic Rent adequate to amortize fully any additional indebtedness
incurred by Landlord and to provide a reasonable return (typical of similar
transactions) to Landlord with respect to its additional equity contribution, if
any, must be of such nature as to permit Landlord to sell such notes or other
debt obligations as may be necessary to accomplish such financing. Landlord
agrees to act in good faith as provided above, but Landlord shall incur no
liability by reason of Landlord's inability or failure to arrange for such
financing or
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to agree with Tenant as to the terms thereof, and this Lease shall continue in
full force and effect notwithstanding such failure.
(d) For the purposes of this Article 11 the term "cost" shall
include without limitation (i) all costs properly charged or chargeable, in
accordance with generally accepted accounting principles, as capital
expenditures in connection with the making of the Additional Improvements or the
construction of the New Buildings, as the case may be including, without
limitation attorneys', architects' and engineers' fees, interest charges during
construction and the fees and charges for the preparation of the plans and
specifications relating to such Additional Improvements or New Buildings, (ii)
survey charges and title insurance premiums in connection with the issuance of
endorsements or policies, if any, to owner's and mortgagee's title insurance
policies pursuant to the provisions of clause (ix) of paragraph (a) of this
Article 11, (iii) recording charges and any mortgage or transfer or other taxes
(if any), and (iv) accounting, printing, duplicating and other expenses incurred
in connection with the financing referred to in paragraph (c) of this Article
11.
12. CONDEMNATION AND CASUALTY
(a) Tenant hereby assigns to Landlord any award, compensation,
insurance proceeds or other payment to which Tenant may become entitled by
reason of its interest in the Leased Property, other than any award,
compensation or insurance payment made to Tenant for interruption of business,
for moving expenses or for any inventory, fixtures, machinery, equipment or
other personal property belonging to Tenant, (hereinafter referred to as
"Tenant's Loss") (i) if the Leased Property, or any portion thereof, is damaged
or destroyed by fire or other casualty or cause, or (ii) by reason of any
condemnation, requisition or other taking or sale of the use, occupancy or title
to the Leased Property or any portion thereof in, by or on account of any actual
or threatened eminent domain proceeding or other action by any governmental
authority or other person having the power of eminent domain. Subject to the
consent of Landlord, which consent shall not be unreasonably withheld, Tenant is
hereby authorized and empowered, at its cost and expense, in the name and behalf
of Landlord, Tenant or otherwise, to appear in any such proceeding or other
action, to negotiate, accept and prosecute any claim for any award,
compensation, insurance proceeds or other payment on account of any such loss,
damage, destruction, condemnation, requisition or other taking or sale, and to
cause any such award, compensation, insurance proceeds or other payment to
be paid to Landlord, except that Tenant shall be entitled to submit a claim for
Tenant's Loss and retain any award applicable thereto. All
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amounts so paid or payable to Landlord or Tenant shall be retained or paid over
to the party entitled thereto in accordance with the provisions of this Article
12. Tenant shall take all appropriate action in connection with each such
claim, proceeding or other action, and shall pay all costs and expenses in
connection therewith. Notwithstanding the foregoing, Landlord may participate in
all such proceedings in all respects.
(b) If any one or more of the Parcels or any part thereof shall be
damaged or destroyed by fire or other casualty, and Tenant may not or does not
elect to terminate the Lease with respect to all or a portion of said Parcel(s)
pursuant to paragraph (c) of this Article 12, then Tenant shall give prompt
written notice thereof to Landlord, and shall, at Tenant's own cost and expense
and in conformity with the requirements set forth in paragraph (a) of Article
11 hereof, proceed with reasonable diligence and promptness to carry out any
necessary demolition and to restore, repair, replace, and/or rebuild the
Parcel(s) in order to restore the Parcel(s), as nearly as practicable, to the
condition and fair market value thereof immediately prior to such damage or
destruction.
Basic and Additional Rent shall not xxxxx hereunder by reason of any
such damage to or destruction of the Leased Property, and Tenant shall continue
to perform and fulfill all of Tenant's obligations, covenants and agreements
hereunder notwithstanding such damage or destruction.
If the Net Award (as defined in paragraph (c) of this Article 12) does
not exceed $250,000 and provided Tenant is not in default under this Lease, then
the Net Award shall be paid to Tenant to be applied to the repair and rebuilding
work required by this paragraph (b). If the Net Award exceeds $50,000, the
proceeds shall be disbursed in accordance with clauses (i)-(iii) of paragraph
(d) of this Article 12.
(c) If, at any time during the Term of this Lease all or substantially
all of any one or more of the Parcels shall be condemned or taken in the
exercise of the power of eminent domain by any sovereign, municipality, or other
public or private authority or shall be destroyed by fire or other casualty or,
after any condemnation, taking or casualty of a Parcel(s), if the Parcel(s)
is unsuitable for continued use in Tenant's business, or if any condemnation,
taking or casualty of any portion of the Parcel(s) shall take place during the
last two years of the Basic Term hereof or during the last two years of any
Extended Term, then Tenant may give notice to Landlord of Tenant's intention to
terminate this Lease with respect to such Parcel(s). Substantially all of a
Parcel shall be deemed to have been taken if the remaining portion of the Parcel
shall not be of sufficient size or character to permit the operation by
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Tenant of its business thereon and therein on an economically feasible basis,
assuming that such remaining portion had been repaired and restored to the
fullest extent possible. If Landlord and Tenant do not agree on whether all or
substantially all of a Parcel shall have been taken or destroyed then their
dispute shall be settled by arbitration in accordance with Article 33 hereof.
Tenant shall give notice to Landlord of Tenant's intention to terminate this
Lease with respect to a Parcel not later than 180 days after the occurrence of
such condemnation or casualty. Tenant's notice to Landlord shall (i) contain a
description of the relevant condemnation, taking or casualty, (ii) specify the
date on which this Lease shall terminate with respect to such Parcel, which
shall be the Installment Payment Date first occurring at least 180 days after
such notice is given (the "Termination Date"), (iii) if such notice of
termination shall be based on a determination by Landlord and Tenant that a
Parcel is no longer suitable for use in Tenant's business as aforesaid, contain
a certification by Tenant that the Board of Directors of Tenant has made such
determination, and that, on or before such Termination Date, Tenant will
discontinue the use of the Parcel in Tenant's ordinary course of business, (iv)
if such Termination Date shall occur during the Basic Term, contain the
irrevocable offer of Tenant to purchase Landlord's interest in the Parcel (and
the Net Award hereinafter referred to), on such Termination Date at the
Termination Value with respect to such Parcel (defined as the amount
corresponding to the applicable Termination Date on Schedule C annexed hereto),
and (v) contain a commitment by Tenant to deposit with a Depository not later
than one year after the date of the condemnation or casualty as security for
payment of the purchase price for the Parcel the applicable Termination Value
with respect to such Parcel less the amount of any insurance proceeds or
condemnation award previously paid with respect to such casualty or taking and
held by Landlord or Landlord's designee pursuant to paragraph (a) of this
Article 12. If Landlord shall reject any such offer to purchase by notice given
to Tenant not later than 10 days prior to such Termination Date, or if such
Termination Date shall occur during an Extended Term, then this Lease shall
terminate on such Termination Date with respect to such Parcel and the Net Award
shall be paid and belong to Landlord. Unless Landlord shall reject such offer to
purchase as provided in the preceding sentence, Landlord shall be conclusively
deemed to have accepted such offer, and on such Termination Date Landlord shall
transfer, and Tenant shall purchase, Landlord's interest in the Parcel (and the
Net Award) in accordance with the provisions of Article 16 hereof. Upon
completion of such purchase, and payment of the Termination Value by Tenant, the
entire award, compensation or other payment, if any, on account of any such
taking or casualty, less any expenses incurred by Landlord in
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collecting such award, compensation, insurance proceeds or other payment and not
paid (or reimbursed to Landlord) by Tenant pursuant to the last sentence of
paragraph (a) of Article 12, shall be paid and belong to Tenant (such award,
compensation, insurance proceeds or other payment, less such expenses, being
herein called the "Net Award"). The additional amount, if any, deposited by
Tenant pursuant to clause (v) of paragraph (c) of this Article 12 shall be paid
to Tenant on the Termination Date if Tenant is not in default under this Lease.
(d) If Tenant shall not give, and shall not be required to give,
notice of its intention to terminate this Lease with respect to a Parcel in
accordance with paragraph (c) of this Article 12, then this Lease shall continue
in full force and effect, and Tenant shall, at its own cost and expense and in
conformity with all of the requirements of paragraph (a) of Article 11 hereof,
repair and rebuild the Parcel to the extent necessary to restore the Parcel as
nearly as practicable to the condition and fair market value thereof immediately
prior to such taking. Tenant shall commence such repair and rebuilding promptly
after such taking, and shall thereafter proceed with due diligence to complete
such repair and rebuilding. Provided Tenant is not in default under this
Lease, if the Net Award shall not exceed $250,000 then such Net Award shall be
paid to Tenant to be applied to the repair and rebuilding work required by this
paragraph (d). If the Net Award shall exceed $250,000, or if Tenant is in
default under this Lease, then:
(i) the full amount thereof shall be paid to a depositary (the
"Depositary") to be selected as hereinafter provided. The Depositary shall
be a bank or trust company selected by Landlord which is authorized to do
business in the state in which the Parcel is located, and which has a net
worth of $100,000,000 or more. The Depositary shall have no affirmative
obligation to prosecute a determination of the amount of, or to effect the
collection of, any insurance proceeds or condemnation award or awards,
unless the Depositary shall have given an express written undertaking to do
so. Moneys received by the Depositary pursuant to the provisions of this
Lease shall not be mingled with the Depositary's own funds and shall be
held by the Depositary in trust separately for the uses and purposes
provided in this Lease. The Depositary shall place any moneys held by it
into an interest bearing account; any interest paid or received by the
Depositary on the moneys so held in trust shall be added to the moneys so
held in trust by the Depositary. In disbursing monies pursuant to clause
(ii) of this paragraph (d), the Depositary may rely
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conclusively on the information contained in any notice given to the
Depositary by Tenant in accordance with the provisions of said clause (ii),
unless Landlord shall notify the Depositary in writing within five (5) days
after the giving of any such notice that Landlord intends to dispute such
information, in which case the disputed amount shall not be disbursed but
shall continue to be held by the Depositary until such dispute shall have
been resolved.
(ii) From time to time, but not more often than once in any 30-day
period, Tenant may request reimbursement out of the Net Award for the
actual costs and expenses incurred by Tenant in connection with such repair
and rebuilding. Such requests shall be made by written notice to the
Depositary, with a copy to Landlord, setting forth in reasonable detail all
of such costs and expenses incurred by Tenant. The Depositary shall
promptly disburse to Tenant out of the Net Award the amount of such costs
and expenses. If Landlord shall in good faith desire to dispute the
information contained in any notice given by Tenant pursuant to this clause
(ii), Landlord shall so notify Tenant and the Depositary in writing within
five (5) business days after the giving of such notice, specifying the
amount intended to be disputed and the nature of the dispute.
(iii) Upon the completion of such repair and rebuilding, any remaining
Net Award shall be paid to and belong to Landlord, and each payment of
Basic Rent payable during the remaining Basic Term to occur following the
payment of such remaining Net Award to Landlord shall be reduced by an
amount so as to preserve Landlord's Yield; provided that in no event will
Basic Rent be reduced to an amount which is less than the debt service
payable with respect to any mortgage of Landlord's interest in the Leased
Property.
(e) Notwithstanding any other provision to the contrary contained in
this Article 12, in the event of a temporary condemnation, this Lease shall
remain in full force and effect and Tenant shall be entitled to the Net Award
allowable to such temporary condemnation; except that such portion of the Net
Award allocable to the time period after the expiration or termination of the
Term of this Lease shall be paid to Landlord
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13. INSURANCE
(a) Tenant shall during the term hereof, at its cost and expense,
maintain valid and enforceable insurance of the following character:
(i) "all risks" insurance covering the Leased Property and all
replacements and additions thereto, and all building materials,
equipment, machinery, appliances, furniture, furnishings and other
property which constitute part of the Leased Property. Coverage shall
be in an amount not less than the full insurable value on a
replacement cost basis of the Leased Property. The term "full
insurable value" as used herein means the actual replacement cost,
including the costs of debris removal, but excluding the cost of the
land, the foundation and the footings.
(ii) comprehensive general public liability insurance on an
occurrence basis, covering the legal liability of Landlord and Tenant
against claims for bodily injury, death or property damage, occurring
on, in or about any of the Parcels and the adjoining land or occurring
as a result of ownership of facilities located on any of the Parcels
or as a result of the use of products or materials manufactured,
processed, constructed or sold, or services rendered, on any of the
Parcels, in the minimum amount of $5,000,000 with respect to any one
occurrence, accident or disaster or incidence of negligence. Coverage
should include "premises/operations", "independent contractors", and
"blanket contractual" liabilities.
(iii) such other insurance, in such amounts and against such
risks, as is customarily maintained by operators of properties
similar to the Leased Property in the areas where the Parcels are
located (including, but not limited to, "flood", "earthquake", and
"boiler and machinery" if such insurance is customarily maintained
by operators of such similar properties).
Such insurance shall be written by companies of recognized financial
standing which are rated at least A+XV by national rating organizations and are
legally qualified to issue such insurance, and are reasonably acceptable to
Landlord, and shall name as the insured parties Landlord and Tenant, and
Landlord's mortgagee, if any, as their interests may appear. Such insurance may
provide for such reasonable deductible amounts as are customarily provided for
in insurance maintained by operators of like facilities (but in no event in
excess of
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$50,000) and may be obtained by Tenant by endorsement on its blanket insurance
policies provided that each such endorsement on the blanket insurance policy
shall provide for a reserved amount thereunder with respect to each of the
Parcels so as to assure that the amount of insurance required by clause (i) of
paragraph (a) of this Article 13 will be available notwithstanding any losses
with respect to other property covered by such blanket policy. Tenant may, at
its cost and expense, prosecute any claim against any insurer or contest any
settlement proposed by any insurer, and Tenant may bring any such prosecution or
contest in the name of Landlord, Tenant or both, and Landlord will join therein
at Tenant's request, provided that Tenant shall indemnify Landlord against any
costs or expenses which Landlord may incur in connection with such prosecution
or contest.
(b) Insurance claims by reason of damage or destruction to any portion
of the Leased Property shall be adjusted by Tenant, subject to the approval of
Landlord, which approval Landlord agrees not to unreasonably withhold or delay.
(c) In addition to the foregoing, every insurance policy maintained
pursuant to clause (viii) of paragraph (a) of Article 11 hereof, or paragraph
(a) of this Article 13 shall: (i) name Landlord as an insured; (ii) contain a
standard first mortgage endorsement naming any mortgagee of Landlord's interest
in the Leased Property; (iii) provide that in any instance where the total loss
proceeds payable by reason of a single occurrence shall exceed $50,000, all of
such proceeds shall be paid as provided in paragraph (d) of Article 12 hereof;
(iv) provide that the issuer waives all rights of subrogation against Landlord,
any successor to Landlord's interest in the Leased Property, and any mortgagee
of Landlord's interest in the Leased Property; (v) provide that 30 days advance
written notice of cancellation, modification, termination or lapse of coverage
shall be given to Landlord and any mortgagee of Landlord's interest in the
Leased Property and that such insurance, as to the interest of Landlord and such
mortgagee, shall not be invalidated by any act or neglect of Tenant or any
party, nor by any foreclosure or any other proceedings relating to the Leased
Property, nor by any change in the title ownership of the Leased Property, nor
by use or occupation of the Leased Property for purposes more hazardous than are
permitted by such policy; (vi) be primary and without right or provision of
contribution as to any other insurance carried by Landlord or any other
interested party; and (vii) and otherwise be satisfactory in form, substance,
limits, deductibles, and retentions to Landlord and Landlord's mortgagee.
(d) Tenant shall not obtain or carry separate insurance concurrent in
form or contributing in the event of
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loss with that required in this Article 13 to be furnished by Tenant, unless
Landlord and Landlord's mortgagee are included therein as named insureds, with
loss payable as provided in this Lease. Tenant shall immediately notify Landlord
whenever any such separate insurance is obtained and shall deliver to Landlord
and Landlord's mortgagee the policy or policies.
(e) Tenant shall deliver to Landlord, prior to the execution of this
Lease and 30 days before the expiration date of each policy as evidence of the
renewal of such policies, a complete certified copy of each policy received
pursuant to this Article 13 (including policy jacket, all forms, all
endorsements, declaration pages, etc.) signed by an authorized insurance company
representative.
(f) Tenant shall comply with all of the terms and conditions of each
insurance policy maintained pursuant to the terms of this Lease.
14. FINANCIAL STATEMENTS AND CERTIFICATES
(a) Tenant shall furnish the following statements to Landlord (i) as
soon as practicable, and in any event within 90 days after the end of each
fiscal year of Tenant, audited consolidated and consolidating financial
statements of Tenant, as of the end of and for such year, including a
consolidated and consolidating balance sheet, a consolidated and consolidating
statement of income and a consolidated and consolidating statement of changes in
financial position as of the end of and for such fiscal year; (ii) as soon as
practicable, and in any event not later than fifteen (15) days after the close
of each calendar quarter, an internally prepared consolidated and consolidating
balance sheet of Tenant, a consolidated and consolidating statement of profit
and loss reconciliation and a consolidated and consolidating statement of
changes in financial position for the period from the beginning of the fiscal
year to the date of such statement; (iii) as soon as practicable, and in any
event within 90 days after the end of the calendar year, a copy of Tenant's
Corporate Federal Income Tax Return; and (iv) as soon as practicable, copies of
all such financial statements and reports as Tenant shall send to its
stockholders; the foregoing (i) and (ii) to be in reasonable detail and
satisfactory in scope to Landlord and the foregoing (i) to be certified by a
firm of independent certified public accountants, whose certificate shall be
based upon an examination conducted in accordance with generally accepted
auditing standards and the application of such tests as said accountants deem
necessary in the circumstances.
Together with each delivery of financial statements required by
subdivision (a) above, Tenant will deliver or cause to be delivered to Landlord
a certificate of Tenant's President,
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any Vice President, or Treasurer stating to the best of such officer's knowledge
based on reasonable inquiry that there exists no Event of Default, or, if any
such Event of Default exists, specifying the nature thereof, the period of
existence thereof and what action Tenant proposes to take with respect thereto.
Together with each delivery of financial statements required by subdivision (a)
above, Tenant will deliver or cause to be delivered to Landlord a certificate of
said accountants stating that, in making the audit necessary to the
certification of such financial statements, they have obtained no knowledge of
any Event of Default or, if any such Event of Default exists, specifying the
nature and period of existence thereof. Such accountants, however, shall not be
liable to anyone by reason of their failure to obtain knowledge of any such
Event of Default.
15. OPTION TO PURCHASE LEASED PROPERTY
(a) If at the time no Event of Default shall have occurred and be
continuing, Tenant shall have the option to purchase all of Landlord's interest
in the Leased Property, which purchase must include both Parcels then subject to
this Lease, on the last day of the Basic Term or the last day of any Extended
Term, at a price determined as set forth below and in accordance with the
provisions of Article 16 of this Lease. Unless exercised, Tenant's options
hereunder shall expire upon the expiration of the Basic Term or exercised
Extended Term or earlier termination of this Lease and shall thereafter be of no
further force and effect.
(b) Tenant shall have the right to exercise the option to purchase
Landlord's interest in the Leased Property by giving notice of exercise ("Option
Notice") to Landlord (i) at least one (1) year before the expiration of the
Basic Term or (ii) at least one (1) year before the expiration of the applicable
Extended Term.
(c) The purchase price of Landlord's interest in the Leased Property
shall be the then fair market value of the Leased Property. For purposes of this
Article 15, the fair market value of the Leased Property shall be determined as
encumbered by this Lease. If Landlord and Tenant are unable to agree on the fair
market value of the Leased Property within sixty (60) days after the date of the
Option Notice, then the fair market value shall be determined by appraisal as
provided below.
(d) Upon failure of Landlord and Tenant to agree on the fair market
value of the Leased Property within the 60-day period provided for above, the
fair market value shall be determined by appraisers selected in the following
manner: on
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or before the expiration of the 60-day period provided for above, Landlord and
Tenant shall each appoint an appraiser. Within forty-five (45) days after the
appointment, if the two appraisers so appointed are unable to agree, the fair
market value of the Leased Property shall be the average of the amounts
determined by the appraisers, if the greater of such amounts is no more than
110% of the lesser of such amounts. If the greater of such amounts exceeds 110%
of the lesser of such amounts, a determination of the fair market value shall be
made by a third appraiser appointed by the other two appraisers, which
appointment shall be made on or before the expiration of the 45-day period
referred to in the immediately preceding sentence. Such determination shall be
made by the third appraiser within forty-five (45) days after his appointment.
In such event, the fair market value shall be the average of the two closest
appraised amounts. Tenant agrees that it shall bear the costs of all such
appraisals. Landlord shall convey the Leased Property to Tenant or its designee
pursuant to and in compliance with Article 16 of this Lease. All appraisers
shall be M.A.I. appraisers having at least ten (10) years experience appraising
commercial properties in the geographic area where the Leased Property is
located of a nature and type similar to that of the Leased Property.
16. PURCHASE PROCEDURE
(a) In the event of the purchase of Landlord's interest in the Leased
Property, or either Parcel, by Tenant pursuant to any provision of this Lease,
the terms and conditions of this Article 16 shall apply.
(b) On the closing date fixed for the purchase of Landlord's interest
in the Leased Property or either Parcel:
(i) Tenant shall pay to Landlord, in lawful money of the United
States, at Landlord's address hereinabove stated or at any other place
in the United States which Landlord may designate, the purchase price;
and
(ii) Landlord shall execute and deliver to Tenant a good and
sufficient deed, assignment and/or such other instrument or
instruments as may be appropriate, which shall transfer Landlord's
interest in the Leased Property or Parcel, subject to (A) any
encumbrances existing on the Commencement Date hereof, (B) all liens,
encumbrances, charges, exceptions and restrictions attaching to the
Leased Property or Parcel after the Commencement Date which shall not
have been created or caused by Landlord unless consented to by
Landlord, and (C) all applicable laws, rules,
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regulations, ordinances and governmental restrictions then in effect.
In the case of a purchase of Landlord's interest in the Leased
Property or Parcel by Tenant pursuant to paragraph (b) of Article 12
hereof, Landlord shall also pay to Tenant the Net Award, if any.
(c) Tenant shall pay all charges incident to such transfer, including
but not limited to all transfer taxes, recording fees, attorneys' fees and
expenses, including, but not limited to, Landlord's attorney's fees and
expenses, title insurance premiums and federal, state and local taxes, except
for any net income or profit taxes of Landlord.
(d) Tenant shall pay to Landlord all Basic Rent and Additional Rent
due and payable on the date Tenant purchases Landlord's interest in the Leased
Property or Parcel.
17. INVESTMENT CREDIT
Landlord hereby elects under the provisions of the Internal Revenue
Code of 1986, as amended (the "Code"), to pass through to Tenant all investment
tax credits which may be applied from time to time in respect of the Leased
Property or any part thereof under Section 38 of the Code (or under the
corresponding section of any U.S. income tax law at any time in effect during
the Term of this Lease). Landlord agrees, at Tenant's expense, to execute timely
all documents prepared by Tenant and delivered to Landlord in advance and
required by the Code and regulations issued thereunder to enable Tenant to
obtain such investment tax credits.
18. QUIET ENJOYMENT
Upon due performance of the covenants and agreements to be performed
by Tenant under this Lease, Landlord covenants that Tenant shall and may at all
times peaceably and quietly have, hold and enjoy the Leased Property during the
Term of this Lease. Notwithstanding the preceding sentence, Landlord or its
agents may enter into and inspect the Leased Property at any reasonable time,
upon the giving of reasonable notice, if they take precautions not to
unreasonably inconvenience Tenant or any persons occupying the Leased Property
in accordance with this Lease and are accompanied by an employee or other
representative of Tenant at all times during such entry and inspection, or at
any time in the event of an emergency.
19. SURVIVAL
In the event of the termination of this Lease as herein provided, the
obligations and liabilities of Tenant, actual or
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contingent, under this Lease which arose at or prior to such termination shall
survive such termination.
20. ASSIGNMENT AND SUBLETTING
(a) Neither this Lease, nor the term and estate hereby granted, nor
any part hereof or thereof, nor the interest of Tenant in any permitted sublease
or the rentals thereunder, shall be assigned, mortgaged, pledged, encumbered, or
transferred by operation of law or otherwise, and neither the Leased Property,
nor any part thereof, shall be encumbered in any manner by reason of any act or
omission on the part of Tenant or anyone claiming under or through Tenant, or
shall be sublet, used or occupied, or permitted to be used or occupied other
than by Tenant except as expressly provided in this Article 20. For the purposes
hereof, the transfer of the stock of Tenant or the sale or disposition of all or
substantially all of the assets of Tenant shall be deemed to be a "transfer"
which is expressly prohibited hereby without the prior written consent of
Landlord. Notwithstanding the foregoing and subject to subparagraphs (b), (c),
(d) and (e) hereof, Tenant may sublet the Leased Property or any portion or
portions thereof, provided that each sublease shall expressly be made subject to
the provisions of this Lease.
(b) Tenant shall not sublease the Leased Property or a portion thereof
if the effect of such sublease would be to cause the Leased Property or any
portion thereof to be considered as used by a tax-exempt or foreign entity with
the result that some or all of the federal, state or local income tax deductions
which Landlord otherwise would be permitted to report with respect to the Leased
Property or the Lease would be deferred or denied.
(c) No such sublease shall affect or reduce any obligations of Tenant
or rights of Landlord hereunder, and all obligations of Tenant hereunder shall
continue in full effect as the obligations of a principal and not of a guarantor
or surety, as though no subletting had been made.
(d) Tenant shall, within 10 days after the execution of any such
sublease, deliver to Landlord a conformed copy thereof (with acknowledgments)
and a conformed copy of any short form lease or memorandum of lease suitable for
recording.
(e) Except for the lien of a mortgage permitted pursuant to Article 7A
hereof, Tenant shall not mortgage this lease or the Term of this Lease, nor
shall Tenant mortgage or pledge the interest of Tenant in and to any sublease of
the Leased Property or any portion thereof or the rental payable
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thereunder. Any such mortgage or pledge and any sublease not permitted by this
Article 20, shall be void.
(g) Subject to Article 15 of this Lease, Landlord may syndicate,
assign, convey or otherwise transfer its estate, right, title and interest
hereunder or in the Leased Property, and upon execution and delivery of any such
assignment, conveyance or other transfer, Landlord shall be released from its
obligations hereunder; provided, however, that if any such assignment is made as
collateral security, the execution and delivery thereof shall not impair or
diminish any obligations of Landlord hereunder. Any such assignment, conveyance
or other transfer shall be subject to this Lease. Landlord shall, within 30 days
after the execution of any such instrument of mortgage, assignment, conveyance
or transfer, deliver written notice thereof to Tenant. Any failure of Landlord
so to deliver a notice of such instrument shall not however, in any way impair
or affect the validity thereof. Notwithstanding the foregoing, provided that
Tenant is not in default of any of its obligations hereunder, Landlord shall not
sell, convey, or otherwise transfer its state, right, title and interest in this
Lease or the Leased Property to Teledyne, Inc., Lincoln Electric or Hobart
Brothers.
21. ADVANCES BY LANDLORD; LATE PAYMENTS
If Tenant shall fail to make or perform any payment or act required by
this Lease, then, upon fifteen (15) days' notice to Tenant (or upon shorter
notice, or with no notice at all, to the extent necessary to meet an emergency
or a governmental or municipal time limitation or to prevent an event of default
under any mortgage affecting the Leased Property) Landlord or Landlord's
mortgagee as the case may be may at its option make such payment or perform such
act for the account of Tenant, and Landlord shall not thereby be deemed to have
waived any default or released Tenant from any obligation hereunder. All amounts
so paid by Landlord or Landlord's mortgagee, as the case may be, and all
incidental costs and expenses (including attorneys' fees and expenses) incurred
in connection with such payment or performance, together with interest at the
annual rate equal to the greater of (i) fourteen (14%) percent, and (ii) three
(3%) percent above the "Base Rate" as announced from time to time in New York,
New York by Citibank, N.A. (or at the highest rate not prohibited by applicable
law, whichever is less) (the "Overdue Rate") from the date of the making of such
payment or of the incurring of such costs and expenses, shall be paid by Tenant
to Landlord, or Landlord's mortgagee, as the case may be, on demand.
If Tenant shall fail to make any payment of Basic or Additional Rent
or purchase price for the Leased Property pursuant to any provision hereof or as
liquidated damages,
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pursuant to paragraph (c) of Article 22 hereof in the amount and on the date
provided for herein, Tenant shall be liable for interest on such late payment at
the Overdue Rate from the date such payment was due to the date such payment was
received.
22. CONDITIONAL LIMITATIONS; EVENTS OF
DEFAULT AND REMEDIES
(a) Any of the following occurrences or acts shall constitute
an "Event of Default" under this Lease:
(i) if Tenant shall default in making payment when due of any
installment of Basic Rent or Additional Rent, and such default shall
continue for five (5) days after the same is due; or
(ii) if Tenant shall default in the due observance or
performance of any covenant, agreement or obligation contained in this
Lease, or if there shall be a material misrepresentation by Tenant
(which misrepresentation is hereinafter referred to as a "default") in
any covenant, representation or warranty contained in this Lease, the
Agreement of Sale and Purchase (the "Agreement of Sale and Purchase")
dated as of even date hereof between Landlord and Tenant, any of the
Closing Documents (as defined in the Agreement of Sale and Purchase) or
any other documents necessary to or in connection with the transactions
contemplated thereby) other than as set forth in clause (i) of this
paragraph (a), and if such default shall continue for 30 days after
Landlord shall have given to Tenant notice specifying such default and
demanding that the same be cured (or, if by reason of the nature
thereof such default cannot be cured by the payment of money and cannot
with due diligence be wholly cured within such period of 30 days, if
Tenant shall fail to proceed promptly to cure the same and thereafter
prosecute the curing of such default with all due diligence, or if
Tenant shall fail to advise Landlord from time to time, promptly after
Landlord's request therefore, as to any action which Tenant is taking
to cure such default and as to the progress with respect to such cure,
it being intended in connection with a default not susceptible of being
wholly cured with due diligence within such period that the time within
which to cure the same shall be extended for such period up to 90 days
as may be necessary to complete the curing of same with all due
diligence, subject to delays as a result of force majeure) (for
purposes of this subparagraph (ii), a
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delay shall be deemed to be a result of force majeure if it results from: an act
of God; an act of war; an act of public enemies; any casualty or condemnation
(as such terms are defined in this Lease); all applicable present or future
laws, ordinances, codes, rules, orders or regulations or compliance therewith;
requests or directives of any public authority or compliance therewith; strikes,
lockouts, stoppages or restraint of labor; riot or civil commotion; shortages of
material; or other causes outside of the reasonable control of Tenant, whether
similar or dissimilar to the foregoing, provided, however, that Tenant notifies
Landlord of any such event in writing immediately after Tenant acquires
knowledge thereof); or
(iii) if Tenant, or any corporation succeeding to Tenant by
merger, consolidation or acquisition of all or substantially all of its
assets, shall file a petition in bankruptcy or for reorganization or
for an arrangement pursuant to the Bankruptcy Act, or shall be
adjudicated a bankrupt or become insolvent or shall make an assignment
for the benefit of its creditors, or shall admit in writing its
inability to pay its debts generally as they become due, or shall be
dissolved, or shall suspend payment of its obligations, or shall take
any corporate action in furtherance of any of the foregoing; or
(iv) if a petition or answer shall be filed proposing the
adjudication of Tenant or any corporation succeeding to Tenant by
merger, consolidation or acquisition of all or substantially all of its
assets as a bankrupt or its reorganization pursuant to the Bankruptcy
Act, and (A) Tenant or its successor corporation shall consent to the
filing thereof, or (B) such petition or answer shall not be discharged
or denied within sixty (60) days after the filing thereof; or
(v) if a receiver, trustee or liquidator (or other similar
official) shall be appointed for or take possession or charge of Tenant
or any corporation succeeding to Tenant by merger, consolidation or
acquisition of all or substantially all of its assets, or of all or
substantially all of the business or assets of Tenant or its successor
corporation or of Tenant's or its successor corporation's estate or
interest in the Leased Property, and shall not be discharged within
sixty (60) days thereafter or if Tenant or its successor corporation
shall consent to or acquiesce in such appointment; or
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(vi) if the estate or interest of Tenant in the Leased
Property or any sublease thereof shall be levied upon or attached in
any proceeding and such process shall not be vacated or discharged
within sixty (60y days after such levy or attachment, unless Tenant
shall be contesting such levy or attachment in accordance with the
requirements of paragraph (d) of Article 6 hereof; or
(vii) if Tenant shall be in default in the payment or
performance of any obligation, beyond any applicable grace period,
under any agreement or instrument to which Tenant is a party relating
to the payment or guaranty of any obligation, note or other evidence of
indebtedness, or loan agreement, in excess of $100,000 (each of the
foregoing is hereinafter individually referred to as an
"Indebtedness"), or any other event shall occur, if the effect of such
failure or other event is to accelerate, or permit the holder of such
Indebtedness or any other person to accelerate the maturity of such
Indebtedness, or any such Indebtedness shall be required to be prepaid
(other than by a regularly scheduled required payment) in whole or in
part prior to its stated maturity; or
(viii) if Tenant fails to pay Landlord the purchase price of
the Leased Property pursuant to Articles 12, 15 and 16 of this Lease;
or
(ix) if Tenant fails to maintain the required insurance
coverage as set forth in Article 13 hereof; or
(x) if Tenant transfers the Leased Property except as provided
in Article 15 hereof.
(b) This Lease and the term and estate hereby granted are
subject to the limitation that whenever an Event of Default shall have occurred
and be continuing, Landlord may, at Landlord's option, elect to (i) re-enter the
Leased Property, without notice, and remove all persons and property therefrom,
either by summary proceedings or by any suitable action or proceeding at law, or
otherwise, without being liable to indictment, prosecution or damages therefor,
and may have, hold and enjoy the Leased Property, together with the
appurtenances thereto and the improvements thereon; and/or (ii) terminate this
Lease at any time by giving ten (10) days' notice in writing to Tenant, electing
to terminate this Lease, and the Term of this Lease shall expire by limitation
at the expiration of said last mentioned ten (l0) days' notice as fully and
completely as if
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said date were the date herein originally fixed for the expiration of the term
hereby granted, and Tenant shall thereupon quit and peacefully surrender the
Leased Property to Landlord, without any payment therefor by Landlord, and
Landlord, upon the expiration of said last mentioned ten (10) days' notice, or
at any time thereafter, may re-enter the Leased Property as provided in the
preceding clause (i).
(c) In case of any such re-entry, termination and/or
dispossess by summary proceedings or otherwise as provided in the immediately
preceding paragraph, (i) the Basic Rent and Additional Rent shall become due
thereupon and be paid up to the time of such re-entry, dispossess and/or
expiration, together with such expenses, including attorneys' fees, as Landlord
shall incur in connection with such re-entry, termination and/or dispossess by
summary proceedings or otherwise; (ii) Landlord may in good faith relet the
Leased Property or any part or parts thereof, either in the name of Landlord or
otherwise, for a term or terms which may, at Landlord's option, be equal to or
less than or exceed the period which would otherwise have constituted the
balance of the Term of this Lease; (iii) Tenant shall also pay to Landlord all
other damages and expenses which Landlord shall have sustained by reason of the
breach of any provision of this Lease, including without limitation legal
expenses, attorneys' fees, brokerage commissions and expenses incurred in
altering, repairing and putting the Leased Property and any buildings and
improvements thereon in good order and condition and in preparing the same for
reletting, which expenses shall be paid by Tenant as they are incurred by
Landlord; (iv) Tenant shall also pay to Landlord the amount by which the Basic
Rent reserved in this Lease exceeds the net amount, if any, of the rents
collected on account of the leases of the Leased Property for each month of the
period which would otherwise have constituted the Term of this Lease (excluding
unexercised extension options), which amounts shall be paid in quarterly
installments by Tenant on the respective Installment Payment Dates specified
therefor, and any suit brought to collect said amounts for any month or months
shall not prejudice in any way the rights of Landlord to collect the deficiency
in any subsequent period by a similar action or proceeding; and/or (v) at the
option of Landlord exercised at any time, Landlord forthwith shall be entitled
to recover from Tenant as liquidated damages, in addition to any other proper
claims but in lieu of and not in addition to any amount which would thereafter
have become payable under the preceding clause (iv), whichever of the following
sums Landlord shall elect:
(A) an amount equal to the Basic Rent and Additional
Rent reserved in this Lease and/or covenanted to be paid for
the remainder of the Term of
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this Lease (excluding unexercised extension periods),
discounted at the rate of six (6%) percent per year to present
worth; provided that, if Tenant shall so request, Landlord
shall at the time of such payment assign and convey the Leased
Property to Tenant, without further consideration, in
accordance with the terms and provisions of Article 16 hereof;
or
(B) an amount equal to the then outstanding principal
balance, plus accrued interest and premiums, if any, under any
mortgage, if any, affecting Landlord's interest in the Leased
Property; or
(C) the Termination Value, plus any penalty imposed
upon Landlord pursuant to any mortgage affecting Landlord's
interest in the Leased Property due to Landlord's prepayment
of the debt secured by said mortgage.
Landlord, at Landlord's option, may make such alterations and/or decorations in
the Leased Property as Landlord, in Landlord's sole judgment, considers
advisable and necessary for the purpose of reletting the Leased Property; and
the making of such alterations and/or decorations shall not operate or be
construed to release Tenant from liability hereunder as aforesaid.
(d) No receipts of moneys by Landlord from Tenant after a
termination of this Lease by Landlord shall reinstate, continue or
extend the Term of this Lease or affect any notice theretofore given to
Tenant, or operate as a waiver of the right of Landlord to enforce the
payment of Basic Rent and Additional Rent, and any purchase price to be
paid by Tenant to Landlord for the purchase of the Leased Property then
due or thereafter falling due, it being agreed that after the
commencement of suit for possession of the Leased Property, or after
final order or judgment for the possession of the Leased Property,
Landlord may demand, receive and collect any moneys due or thereafter
falling due without in any manner affecting such suit, order or
judgment, all such moneys collected being deemed payments on account of
the use and occupation of the Leased Property or, at the election of
Landlord, on account of Tenant's liability hereunder. Tenant hereby
waives any and all rights of redemption provided by any law, statute or
ordinance now in effect or which may hereafter be enacted. Landlord
shall have, receive and enjoy as Landlord's sole and absolute property,
without right or duty to account therefor to Tenant, any and all sums
collected by Landlord as rent or otherwise upon reletting the Leased
Property after Landlord shall resume possession thereof as hereinbefore
provided, including, without limitation upon the
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generality of the foregoing, any amounts by which the sum or sums so
collected shall exceed the continuing liability of Tenant hereunder.
(e) The word "re-enter", as used in this Lease, is not and
shall not be restricted to its technical legal meaning, but is used in
the broadest sense. No such taking of possession of the Leased Property
by Landlord shall constitute an election to terminate the Term of this
Lease unless notice of such intention be given to Tenant or unless such
termination be decreed by a court having jurisdiction.
(f) If an action shall be brought for the enforcement of any
provision of this Lease, in which it shall be determined that Tenant
was in default, Tenant shall pay to Landlord all costs and other
expenses which may become payable as a result thereof, including
reasonable attorneys' fees and expenses. If Landlord shall, without
fault on its part, be made a party to any litigation commenced against
Tenant, Tenant shall pay all costs and reasonable attorneys' fees
incurred or paid by Landlord in connection with such litigation.
(g) No right or remedy herein conferred upon or reserved to
Landlord is intended to be exclusive of any other right or remedy, and
every right and remedy shall be cumulative and in addition to any other
legal or equitable right or remedy given hereunder, or at any time
existing. The failure of Landlord to insist upon the strict performance
of any provision or to exercise any option, right, power or remedy
contained in this Lease shall not be construed as a waiver or a
relinquishment thereof for the future. Receipt by Landlord of any Basic
Rent or Additional Rent payable hereunder with knowledge of the breach
of any provision contained in this Lease shall not constitute a waiver
of such breach (other than the prior failure to pay such Basic Rent or
Additional Rent), and no waiver by Landlord of any provision of this
Lease shall be deemed to have been made unless made under signature of
an officer of Landlord.
23. NOTICES
All notices and other instruments given or delivered pursuant
to this Lease shall be sent by prepaid United States registered or
certified mail, return receipt requested, and the giving of such notice
or other communication shall be deemed complete on the actual date of
receipt by the addressee (as evidenced by the return receipt). Landlord
and Tenant shall each have the right to specify, from time to time, as
its address for purposes of this Lease, any address and any addressee,
in the continental United States, upon giving 15
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days' written notice thereof to the other party. The addresses of
Landlord and Tenant for purposes of this Lease, until notice has been
given as above provided, shall be as follows:
Landlord: Westinghouse Credit Corporation
One Oxford Centre
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Vice President Real Estate
Lease Financing
with a copy to: Xxxxxx Xxxx & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxx, Xx., Esq.
Tenant: Alloy Rods Corporation
Xxxxxx Avenue
Hanover, Pennsylvania 17331
Attn: Chief Executive Officer
with a copy to: Xxxxxxxxxxx & Xxxxxxxx
0000 Xxxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, III
24. ESTOPPEL CERTIFICATES
Each party hereto agrees that at any time and from time to
time during the term of this Lease, it will promptly, but in no event later than
fifteen (15) days after request by the other party hereto, execute, acknowledge
and deliver to such other party or to any prospective purchaser, assignee or
mortgagee designated by such other party, a certificate stating, to the best of
such party's knowledge, (a) that this Lease is unmodified and in force and
effect (or if there have been modifications, that this Lease is in force and
effect as modified, and identifying the modification agreements); (b) the date
to which rent has been paid; (c) whether or not there is an existing default by
Tenant in the payment of Basic Rent or any other sum of money hereunder, and
whether or not there is any other existing default by either party hereto with
respect to which a notice of default has been served, and, if there is any such
default, specifying the nature and extent thereof; and (d) whether or not there
are any setoffs, defenses or counterclaims against enforcement of the
obligations to be performed hereunder existing in favor of the party executing
such certificate.
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25. NO MERGER
There shall be no merger of this Lease or of any leasehold or
subleasehold estate hereby or thereby created with the fee or any other estate
or ownership interest in the Leased Property or any part thereof by reason of
the fact that the same person, firm, corporation or other entity may acquire or
own or hold, directly or indirectly, (a) this Lease or any leasehold or
subleasehold estate created hereby or thereby or any interest in this Lease or
in any such leasehold or subleasehold estate and (b) the fee estate or other
estate or ownership interest in the Leased Property or any part thereof, and
this Lease shall not be terminated for any cause except as expressly provided
herein and any instrument of transfer shall so provide.
26. SURRENDER
(a) Upon the expiration or earlier termination of the Term of
this Lease, Tenant shall surrender the Leased Property to Landlord in the same
condition and suitable for the same use in which the Leased Property was
originally received from Landlord except as repaired, rebuilt or altered as
required or permitted by this Lease (and/or except for such casualty damage as
Tenant shall not be required to repair or restore hereunder), and except for
ordinary wear and tear. Tenant shall remove from the Leased Property on or prior
to such expiration or earlier termination all property belonging to Tenant
except such property as agreed upon by Landlord and Tenant in writing, which
agreement shall be entered into at least thirty (30) days prior to the
expiration or earlier termination of the Term of this Lease, and shall repair
any damage caused by such removal. Property not so removed shall become the
property of Landlord, which may cause such property to be removed from the
Leased Property and disposed of, but the cost of any such removal and
disposition and of repairing any damage caused by such removal shall be borne by
Tenant.
(b) Except for surrender upon the expiration or earlier
termination of the term hereof, no surrender to Landlord of this Lease or of
the Leased Property shall be valid or effective unless agreed to and accepted in
writing by Landlord.
27. SEPARABILITY
Each provision contained in this Lease shall be separate and
independent and the breach of any such provision by Landlord shall not discharge
or relieve Tenant from its obligation to perform each obligation of this Lease
to be performed by Tenant. If any provision of this Lease or the application
thereof to any person or circumstance shall to any
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extent be invalid and unenforceable, the remainder of this Lease, or the
application of such provision to persons or circumstances other than those as to
which it is invalid or unenforceable, shall not be affected thereby, and each
provision of this Lease shall be valid and shall be enforceable to the extent
permitted by law.
28. BINDING EFFECT; ENTIRE AGREEMENT; MODIFICATIONS
All provisions contained in this Lease shall be binding upon,
inure to the benefit of and be enforceable by the respective successors and
permitted assigns of Landlord and Tenant to the same extent as if each such
successor or assign were named as a party hereto. This Lease embodies the entire
agreement between Landlord and Tenant relating to the subject matter hereof and
supersedes all prior agreements and understandings relating to such subject
matter. Neither this Lease nor any provision hereof may be amended, modified,
waived, discharged or terminated orally, but only as expressly provided herein
or by an instrument signed by Landlord and Tenant.
29. SIGNS; SHOWING
During the one year period preceding the date on which the
Term of this Lease (as the same may be extended from time to time) shall
terminate or fully expire, Landlord may, subject to all applicable governmental
laws, rules and regulations, (a) place signs in reasonable locations on the
Leased Property advertising that the same will be available for rental or
purchase, and (b) show the Leased Property to prospective tenants or purchasers
at such reasonable times during normal business hours as Landlord may select. In
no other event may Landlord place any sign whatsoever on the Leased Property.
30. CERTAIN DEFINITIONS
As used in this Lease the following terms have the meanings
set forth below:
"Bankruptcy Act" shall mean Title 11 of the United States Code
or any other Federal or state bankruptcy, insolvency or similar law, now or
hereafter in effect.
"Board of Directors of Tenant" shall mean either the board of
directors of Tenant or an executive committee thereof.
"Business Day" shall mean any day except Saturdays, Sundays
and the days observed by the Federal or the Pennsylvania governments as public
holidays.
-38-
"Event of Default" shall have the meaning given that term in
paragraph (a) of Article 21.
"Landlord's Yield" means Landlord's after-tax rate of return
and total after-tax cash flow per dollar of equity, on the basis of the same
assumptions originally used by Landlord in computing Landlord's Yield. In the
event that Landlord and Tenant are unable to agree to the amount of any
adjustment of Basic Rent necessary to preserve Landlord's Yield hereunder, the
matter will be submitted for resolution by a nationally recognized firm of
certified public accountants selected by Landlord and reasonably approved by
Tenant.
"Parcel(s)" shall have the meaning set forth in Article 1
hereof.
"Term of this Lease" shall mean the Basic Term, plus any
Extended Term or Terms which may be effected pursuant to Article 2 hereof.
31. NATURE OF LANDLORD'S OBLIGATIONS
Anything in this Lease to the contrary notwithstanding, no
recourse or relief shall be had under any rule of law or equity, statute or
constitution or by any enforcement of any assessments or penalties, or otherwise
or based on or in respect of this Lease (whether by breach of any obligation,
monetary or non-monetary), against Landlord (or any officer or partner of
Landlord or any predecessor or successor corporation (or other entity) of
Landlord), it being expressly understood that any obligations of Landlord under
or relating to this Lease are solely obligations payable out of the Leased
Property and are compensable solely therefrom. It is expressly understood that
all such liability is being expressly waived and released as a condition for the
execution of this Lease, and Tenant expressly waives and releases all such
liability as a condition of, and as consideration for, the execution of this
Lease; provided, however, that nothing herein contained is to be taken to
prevent recourse to and enforcement against Tenant of this Lease and of all
liabilities, obligations and undertakings binding upon it and contained herein.
32. WAIVER OF TRIAL BY JURY
To the extent permitted by law Landlord and Tenant hereby
waive trial by jury in any litigation brought by either of the parties hereto
against the other on any matter arising out of or in any way connected with this
Lease or the Leased Property.
-39-
33. ARBITRATION
Any arbitration for which provision is made herein shall be
conducted in accordance with the then prevailing rules of the American
Arbitration Association, or the successor party thereto from time to time in
existence. The fees and expenses of the arbitrator(s) shall be paid by Tenant.
Landlord and Tenant shall each bear their own expenses (including, but not
limited to, attorney's fees and expenses of witnesses) in any arbitration
proceedings. The arbitration proceeding shall be held in the County of
Allegheny, Commonwealth of Pennsylvania.
34. GRANTING OF EASEMENTS, ETC.
If no Event of Default hereunder has occurred and is
continuing, Landlord will join with Tenant, from time to time at the request of
Tenant (and at Tenant's sole cost and expense), with respect to their interests
in the Leased Property to (i) grant, in the ordinary course of business,
easements, licenses, rights of way and other rights and privileges in the nature
of easements, (ii) release, in the ordinary course of business, existing
easements and appurtenances which benefit the Leased Property, and (iii) execute
and deliver any instrument, in form and substance reasonably acceptable to
Landlord, necessary or appropriate to make or confirm such grants or releases to
any person, with or without consideration, but only if Landlord shall have
received (x) a certificate of an authorized officer of Tenant stating that such
grant or release was granted in the ordinary course of Tenant's business, does
not interfere with and is not detrimental to the conduct of business on the
Leased Property and does not materially impair the usefulness of the Leased
Property or materially impair the fair market value of the Leased Property or
materially impair Landlord's interests in the Leased Property, and (y) a duly
authorized and binding undertaking of Tenant, in form and substance satisfactory
to Landlord, to remain obligated under this Lease and under any instrument
executed by Tenant consenting to the assignment of Landlord's interest in this
Lease as security for indebtedness, as though such easement, license,
right-of-way or other right or privilege has not been granted or released, and
to perform all obligations of the grantor or releasor under such instrument of
grant or release during the Term of this Lease.
35. RECORDING
Landlord and Tenant will execute, acknowledge, deliver and
cause to be recorded or filed in the manner and place required by any present or
future law this Lease or a memorandum thereof, and all other instruments,
including, without limitation, financing statements, continuation statements and
-40-
instruments of similar character, which shall be reasonably requested by
Landlord as being necessary or appropriate in order to protect the Landlord's
interest in the Leased Property or to publish notice of or to create, maintain
and protect the lien and security interest intended to be created by any
mortgage upon, and the interest of Landlord's mortgagee in, the Leased Property.
If Tenant shall fail to comply with this paragraph, Landlord shall be and is
hereby irrevocably appointed the agent and attorney in fact of Tenant to comply
therewith, but this sentence shall not prevent any default in the observance of
this Article from constituting an Event of Default.
36. MISCELLANEOUS
This Lease shall be binding upon and shall inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns. No term or provision hereof may be amended, changed,
waived, discharged or terminated orally, but only by an instrument signed by the
party against whom enforcement thereof is sought. No failure, delay, forbearance
or indulgence on the part of any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, or as an acquiescence in
any breach, nor shall any single or partial exercise of any right, power or
remedy hereunder preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. Any provision of this Lease which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. This Lease and the
rights and obligations in respect hereof shall be governed by, and construed and
interpreted in accordance with, the laws of the Commonwealth of Pennsylvania,
including matters of internal law, conflicts of law, and arbitration. All
headings are for reference only and shall not be considered as part of this
Lease. This Lease may be executed in any number of counterparts, each of which
shall be an original, and such counterparts together shall constitute but one
and the same instrument.
The dating of this Lease "as of July 8, 1988" is for
convenience of reference only, and this Lease shall become
-41-
effective only upon its execution and delivery by Landlord and Tenant.
IN WITNESS WHEREOF, Landlord and Tenant hereto have each
caused this Lease to be duly executed and delivered in their respective names
and behalf, as of the day and year first above written.
WESTINGHOUSE CREDIT CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
--------------------------
Title: Senior Vice President
--------------------------
ALLOY RODS CORPORATION
By: /s/ Xxxxxx X. Xxxx
-----------------------------
Name: Xxxxxx X. Xxxx
--------------------------
Title: Chief Executive Officer
--------------------------
-42-
SCHEDULE A
PARCEL I
ALL THE FOLLOWING described two (2) tracts of land situate in the Township
of Penn, County of York and Commonwealth of Pennsylvania, more particularly
bounded and described according to a Plan of Survey made by Xxxx Engineering,
Inc., dated May, 1988, as follows, to wit:
TRACT A: BEGINNING at a Re-Bar on the eastern legal right-of-way line of
Xxxxxx Avenue (Township Road T-338) (50 feet wide) 25 feet southeastwardly from
the center of the Pennsylvania Railroad; thence parallel with and 25 feet
southeastwardly from the center of said Pennsylvania Railroad, North 57 degrees
43 minutes 21 seconds East, 944.18 feet to a Re-Bar; thence along same by a
curve to the right, having a radius of 10,980.99 feet and a chord of North 59
degrees 04 minutes 02 seconds East, 515.40 feet, an arc distance of 515.45 feet
to a Re-Bar; thence along same, North 60 degrees 24 minutes 43 seconds East,
145.79 feet to a Re-Bar at lands now or formerly of Xxxxxx X. and Xxxxx X.
Xxxx; thence along said Xxxx lands, South 45 degrees 46 minutes 13 seconds
East, 555.01 feet to a Re-Bar on the northern legal right-of-way line Xxxxx
Xxxx (Township Road T-341); thence along said legal right-of-way line of Xxxxx
Xxxx, South 26 degrees 23 minutes 50 seconds West, 76.87 feet to a point; thence
along same by a curve to the right, having a radius of 562.51 feet and a chord
of South 41 degrees 52 minutes 39 seconds West, 300.27 feet, an arc distance of
303.96 feet to a Re-Bar; thence along same, South 57 degrees 21 minutes 27
seconds West, 1,364.56 feet to a Re-Bar on the eastern legal right-of-way line
of Xxxxxx Avenue; thence along said eastern legal right-of-way line North 33
degrees 34 minutes 00 seconds West, 689.44 feet to the first mentioned point
and place of BEGINNING.
TRACT B: BEGINNING from a corner on the southern legal right-of-way line
of 50 feet wide Xxxxx Xxxx at lands now or formerly of Xxxxxx X. and Xxxxx X.
Xxxx; thence along lands of Xxxxxx X. Xxxx and Xxxxx X. Xxxx, South 45 degrees
16 minutes 12 seconds East, 817.81 feet to a corner at a post set in concrete
at lands of Hanover Canning Co.; thence along said Canning Co. lands, South 49
degrees 42 minutes 17 seconds West, 441.62 feet to a point at a concrete
monument; thence South 70 degrees 10 minutes 47 seconds West, 451.96 feet to a
railroad rail; thence South 51 degrees 38 minutes 51 seconds West, 41.52 feet
to an iron pipe at lands now or formerly of Ger-Mar Associates; thence along
said lands of Ger-Mar Associates, North 32 degrees 38 minutes 33 seconds West,
642.38 feet to a Re-Bar on the southern legal right-of-way line of aforesaid
Xxxxx Xxxx; thence along said legal right-of-way line, North 57 degrees 21
minutes 27
-43-
seconds East, 374.10 feet to a point; thence along the same by a curve to the
left, having a radius of 612.51 feet and a chord of North 41 degrees 52 minutes
39 seconds East, 326.96 feet, an arc distance of 330.97 feet to a point; thence
North 26 degrees 23 minutes 50 seconds East, 60.30 feet to a corner, the place
of BEGINNING.
PARCEL II
ALL THE FOLLOWING described tract of land situate in the Township of Penn,
County of York and Commonwealth of Pennsylvania, more particularly bounded and
described according to a Plan of Survey made by Xxxx Engineering, Inc., dated
May, 1988, as follows, to wit:
BEGINNING at a Re-Bar on the western legal right-of-way line of Xxxxxx
Avenue (Township Road T-338) (50 feet wide), 25 feet southeastwardly from the
center of the Pennsylvania Railroad; thence along the western legal
right-of-way line of Xxxxxx Avenue, South 33 degrees 34 minutes 00 seconds
East, 689.76 feet to a Re-Bar at line of lands of Ger-Mar Associates; thence
along said Ger-Mar Associates lands, South 57 degrees 21 minutes 27 seconds
West, 545.73 feet to an iron pin in line of land of Doubleday Company; thence
along said lands of Doubleday Company, North 36 degrees 43 minutes 08 seconds
West, 695.15 feet to a Re-Bar 25 feet southeastwardly from the center of the
Pennsylvania Railroad; thence parallel with and 25 feet southeastwardly from
the center of said Pennsylvania Railroad, North 57 degrees 43 minutes 21
seconds East, 584.03 feet to the first mentioned point and place of BEGINNING.
-44-
SCHEDULE B
I. LEASE TERM
The Basic Term shall commence on July 8, 1988 and shall terminate on July
8, 2003.
The Term of the Lease may be extended for up to two (2) consecutive
Extended Terms of five years each, each such Extended Term to commence on the
date immediately following the last day of the previous Extended Term (or the
Basic Term, in the case of the First Extended Term).
II. BASIC RENT
Installment Payment Date Installment Payment
------------------------ -------------------
10/8/1988 287286.11
1/8/1989 287286.11
4/8/1989 287286.11
7/8/1989 287286.11
10/8/1989 287286.11
1/8/1990 287286.11
4/8/1990 287286.11
7/8/1990 287286.11
10/8/1990 287286.11
1/8/1991 287286.11
4/8/1991 287286.11
7/8/1991 287286.11
10/8/1991 297705.85
1/8/1992 297705.85
4/8/1992 297705.85
7/8/1992 297705.85
10/8/1992 297705.85
1/8/1993 297705.85
4/8/1993 297705.85
7/8/1993 297705.85
10/8/1993 297705.85
1/8/1994 297705.85
4/8/1994 297705.85
7/8/1994 297705.85
10/8/1994 316228.89
1/8/1995 316228.89
4/8/1995 316228.89
7/8/1995 316228.89
10/8/1995 316228.89
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1/8/1996 316228.89
4/8/1996 316228.89
7/8/1996 316228.89
10/8/1996 316228.89
1/8/1997 316228.89
4/8/1997 316228.89
7/8/1997 316228.89
10/8/1997 335765.92
1/8/1998 335765.92
4/8/1998 335765.92
7/8/1998 335765.92
10/8/1998 335765.92
1/8/1999 335765.92
4/8/1999 335765.92
7/8/1999 335765.92
10/8/1999 335765.92
1/8/2000 335765.92
4/8/2000 335765.92
7/8/2000 335765.92
10/8/2000 350355.31
1/8/2001 350355.31
4/8/2001 350355.31
7/8/2001 350355.31
10/8/2001 350355.31
1/8/2002 350355.31
4/8/2002 350355.31
7/8/2002 350355.31
10/8/2002 350355.31
1/8/2003 350355.31
4/8/2003 350355.31
7/8/2003 350355.31
Rent Per Quarter
(Payable Oct. 8, Jan. 8, Apr. 8)
and July 8 of each Year)
-----------------------
First Renewal Term 350,355.31
Second Renewal Term 385,390.84
-45-a-
SCHEDULE C
The Termination Values for each Parcel shall be the total Termination
Value set forth below multiplied by the following percentages:
Parcel Percentage
------ ----------
Office Lab 28%
Hanover Plant 72%
Termination Values
------------------
Date Termination Value
------------- -----------------
8 OCT 1988 8819235
8 JAN 1989 8883252
8 APR 1989 8784790
8 JUL 1989 8757493
8 OCT 1989 8748138
8 JAN 1990 8727457
8 APR 1990 8704577
8 JUL 1990 8682951
8 OCT 1990 8659182
8 JAN 1991 8534000
8 APR 1991 8606928
8 JUL 1991 8580322
8 OCT 1991 8541496
8 JAN 1992 8500782
8 APR 1992 8457385
8 JUL 1992 8414938
8 OCT 1992 8369886
8 JAN 1993 8322988
8 APR 1993 8273319
8 JUL 1993 8224483
8 OCT 1993 8172915
8 JAN 1994 8119373
8 APR 1994 8062927
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8 JUL 1994 8007352
8 OCT 1994 7930458
8 JAN 1995 7850785
8 APR 1995 7767527
8 JUL 1995 7584517
8 OCT 1995 7598216
8 JAN 1996 7509127
8 APR 1996 7416340
8 JUL 1996 7323726
8 OCT 1996 7227429
8 JAN 1997 7128247
8 APR 1997 7025166
8 JUL 1997 6922247
8 OCT 1997 6795965
8 JAN 1998 6665874
8 APR 1998 6531111
8 JUL 1998 6395880
8 OCT 1998 6256030
8 JAN 1999 6112411
8 APR 1999 5963915
8 JUL 1999 5814695
8 OCT 1999 5660578
8 JAN 2000 5502409
8 APR 2000 5339675
8 JUL 2000 5174964
8 OCT 2000 4990018
8 JAN 2001 4802381
8 APR 2001 4607352
8 JUL 2001 4411122
8 OCT 2001 4288998
8 JAN 2002 4001851
8 APR 2002 3788498
8 JUL 2002 3573288
8 OCT 2002 3351803
8 JAN 2003 3124915
8 APR 2003 2891227
8 JUL 2003 2640171
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (this "Amendment") is made and entered
into this 19th day of December, 1989, by and between WESTINGHOUSE CREDIT
CORPORATION, a Delaware corporation ("WCC"), and ALLOY RODS CORPORATION, a
Delaware corporation ("ARC");
W I T N E S S E T H, That:
WHEREAS, WCC, as "landlord," and ARC, as "tenant," entered into that
certain Lease dated as of July 8, 1988 (the "Lease"); and
WHEREAS, WCC and ARC now desire to amend the Lease in certain respects;
NOW, THEREFORE, incorporating the foregoing recital of facts and in
consideration of the mutual covenants hereinafter set forth, WCC and ARC,
intending to be legally bound, hereby agree as follows:
1. Recitals. The foregoing recitals are true and correct and are
incorporated herein.
2. Lease Amendments. The Lease is hereby amended to provide that,
notwithstanding any other provision thereof to the contrary, from and after the
date hereof:
2.1. Insurance Deductible. The parenthetical appearing at the bottom of
Page 23 which states "(but in no event in excess of $50,000)" shall be deleted
in its entirety and the following inserted in lieu thereof: "(but in no event in
excess of $150,000)."
2.2. Delivery of Financial Statements. The provision appearing in
Paragraph 14 (a) clause (ii) which states "as soon as practicable, and in any
event not later than fifteen (15) days after the close of each calendar quarter
.. . ." shall be deleted in its entirety and the following inserted in lieu
thereof: "as soon as practicable, and in any event not later than thirty (30)
days after the close of each calendar quarter . . . ."
2.3. Additional Reports. The provision appearing in Paragraph 14 (a)
clause (iv) which states "as soon as practicable, copies of all such financial
statements and reports as Tenant shall send to its stockholders;" shall be
deleted in its entirety.
3. Limitation on Modification. Except as specifically modified herein,
the terms and conditions of the Lease shall remain in full force and effect as
executed. This Amendment is a modification of terms only as set out herein,
leaving in effect all features of the Lease except as specifically or
necessarily modified hereby.
-2-
4. Estoppel. ARC hereby acknowledges, warrants, and confirms to WCC
that there exist no defenses, set-offs, or counterclaims to its obligations
under the Lease and that WCC is under no obligation further to amend or modify
the Lease. WCC hereby acknowledges, warrants, and confirms to ARC that there
exist no defenses, setoffs, or counterclaims to its obligations under the Lease
and that to its knowledge ARC is not in default thereunder.
5. Parties Bound. This Amendment shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, successors, and
assigns.
6. Governing Law. All questions with respect to the construction of
this Amendment and the rights and liabilities of the parties hereto shall be
determined in accordance with the applicable provisions of the internal laws of
the Commonwealth of Pennsylvania without regard to the principles of conflicts
of laws.
7. No Further Amendment. The Lease cannot be further amended except by
an instrument in writing and signed by the party against whom such amendment is
asserted.
IN WITNESS WHEREOF, WCC and ARC have executed this Amendment as of the day and
year first above written.
WCC:
WESTINGHOUSE CREDIT CORPORATION, a
Delaware corporation
By: /s/
-------------------------------
ARC:
ALLOY RODS CORPORATION, a Delaware
corporation
By: /s/ Xxxxxx X. Xxxx
-------------------------------
ASSIGNMENT OF SELLER'S INTEREST IN LEASES AND ASSUMPTION
AGREEMENT
THIS ASSIGNMENT OF SELLER'S INTEREST IN LEASES AND ASSUMPTION AGREEMENT
(the "Assignment"), dated as of the 11 day of April, 2000, is made by and
between GRIPHON STEELERS INVESTORS L.P., a Delaware limited partnership
("Assignor"), and OLP HANOVER I, L.L.C., a Pennsylvania limited liability
company ("Assignee").
WHEREAS, Assignor and Assignee entered into that certain Contract of Sale
dated as of January 28, 2000 (the "Sales Contract") for the purchase and sale
of certain property, consisting of certain real property, as more particularly
described in Exhibit A, (the "Property"), attached hereto and made a part
hereof.
WHEREAS, Assignor desires to assign, transfer, set over and deliver to
Assignee all of Assignor's right, title and interest in and to the leases as
hereinafter provided; and
WHEREAS, Assignee desires to assume the duties and obligations of Assignor
with respect to the leases from and after the date hereof.
NOW, THEREFORE, in accordance with the Sales Contract and in consideration
of the sum of TEN AND NO/100 DOLLARS ($10.00), the receipt and sufficiency of
which are hereby acknowledged, the parties do hereby covenant and agree as
follows and take the following actions:
1. Assignor does hereby assign, transfer, set over and deliver unto Assignee
all of the Assignor's right, title and interest in and to the leases,
tenancies, licenses and other rights of occupancy or use of or for any
portion of the Property by third parties, including all amendments,
renewals and extensions thereof, in effect as of the date of this
Assignment, a schedule of which is attached as Exhibit B (collectively, the
"Leases"). Assignor shall defend, indemnify and hold harmless Assignee from
and against any and all loss and claims asserted against or incurred by
Assignee as a result of any acts or omissions occurring prior to the date
of this Assignment in connection with the Leases.
2. EXCEPT AS EXPRESSLY SET FORTH HEREIN AND/OR IN THE SALES CONTRACT AND/OR IN
THE SELLER'S CERTIFICATE OF EVEN DATE HEREWITH, THE LEASES ARE BEING
ASSIGNED "AS IS", "WHERE IS", AND "WITH ALL FAULTS" AS OF THE DATE OF THIS
ASSIGNMENT, WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER AS TO THEIR
ENFORCEABILITY, STATUS, CONDITION, FITNESS FOR ANY PARTICULAR PURPOSE,
MERCHANTABILITY OR ANY OTHER WARRANTY, EXPRESSED OR IMPLIED AND ASSIGNEE IS
HEREBY ACQUIRING THE LEASES BASED SOLELY UPON ASSIGNEE'S OWN INDEPENDENT
INVESTIGATIONS AND INSPECTIONS AND NOT IN
RELIANCE ON ANY INFORMATION PROVIDED BY ASSIGNOR OR ASSIGNOR'S AGENTS OR
CONTRACTORS. EXCEPT AS EXPRESSLY SET FORTH HEREIN AND/OR IN THE SALES
CONTRACT AND/OR IN THE SELLER'S CERTIFICATE OF EVEN DATE HEREWITH, ASSIGNOR
SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR
WRITTEN, PAST OR PRESENT, EXPRESSED OR IMPLIED, CONCERNING THE LEASES OR
ASSIGNOR'S TITLE THERETO.
3. Assignee hereby accepts the foregoing assignment of the Leases and hereby
assumes all duties and obligations of Assignor under the Leases, arising on
and after the date hereof. Assignee shall defend, indemnify and hold
harmless Assignor from and against any and all "Claims" asserted against or
incurred by Assignor as a result of any acts or omissions occurring on or
after the date of this Assignment in connection with the Leases.
4. This Assignment shall be (a) binding upon, and inure to the benefit of, the
parties to this Assignment and their respective heirs, legal
representatives, successors and assigns and (b) construed in accordance
with the laws of the jurisdiction in which the Property is located, without
regard to the application of choice of law principles, except to the extent
such laws are superseded by federal law.
5. This Assignment shall be construed in accordance with the laws of the State
of Pennsylvania and may not be amended except by written agreement executed
by Assignor and Assignee.
6. Assignor represents and warrants to Assignee that (a) Assignor is the owner
of the landlord's interest in the Leases, (b) Assignor has full right and
title to the Leases and the authority to transfer and convey the Leases and
(c) the Leases are free and clear of all liens and encumbrances (except the
Permitted Exceptions, as such term is defined in the Sales Contract).
IN WITNESS whereof, this Assignment has been signed, sealed and delivered
by the parties as of the date first above written.
ASSIGNOR:
--------
GRIPHON STEELERS INVESTORS, L.P., a Delaware
limited partnership
By: Griphon Steelers, LLC, a Delaware limited
liability company, its General Partner
By: Xxxxxx Street Capital, LLC, a Delaware
limited liability company, its Sole
Member
By: Xxxxxx Street Partners, LLC, a
Delaware limited liability
company, its Managing Member
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------
Name: Xxxxxx Xxxxxxxxx
Title: Member
ASSIGNEE:
--------
OLP HANOVER I, L.L.C., a Pennsylvania limited
liability company
By: OLP Hanover PA, Inc., a Pennsylvania
corporation, its Member
By: /s/
---------------------
Name:
Title:
