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Exhibit 10(f)
SHARED FACILITIES AGREEMENT
THIS SHARED FACILITIES AGREEMENT is entered into as of ______________,
1997 (this "Agreement"), by and between Kennametal Inc., a Pennsylvania
corporation ("Sublessor"), and J&L America, Inc., a Michigan corporation
("Sublessee").
RECITALS
A. Sublessor is a tenant under each of the lease agreements
described on Schedule 1 attached hereto and made a part
hereof.
B. Sublessee has occupied, and desires to continue to occupy,
all or a portion of the premises leased by Sublessor under
such lease agreements.
C. Sublessor and Sublessee desire to evidence their agreement
relating to such shared occupancy upon the terms and
conditions set forth below.
NOW, THEREFORE, in consideration of the covenants and agreements set
forth herein, and intending to be legally bound hereby, the parties covenant
and agree as follows:
1. DEFINITIONS. In addition to the definitions set forth in the
Preamble, the following are the defined terms used in this Agreement:
"AFFILIATE" means a corporation, partnership or other business entity
which directly, or indirectly, controls, is controlled by, or is under
common control with another corporation, partnership or other business
entity; provided, however, that for purposes of this Agreement,
Sublessee and its subsidiaries (other than Sublessor and its
subsidiaries) shall not be Affiliates of Sublessor nor shall Sublessor
and its subsidiaries be Affiliates of Sublessee. If more than 50% of
the voting stock of a corporation shall be owned by another
corporation or by a partnership or other business entity, the
corporation whose stock is so owned shall be deemed to be controlled
by the corporation, partnership or business.
"LEASE TERM" means the initial term of a Prime Lease as it may be
extended by Sublessor pursuant to a renewal or extension option
therein.
"LEASED PREMISES" means the premises in which Sublessor has a
leasehold interest under a Prime Lease or all such premises,
collectively, as the context may require.
"LESSOR" means the landlord under a Prime Lease.
"PRIME LEASE" means each of the leases described on Schedule 1; all
such leases are collectively referred to as the "Prime Leases." The
parties may, after the date hereof, designate any other lease as a
Prime Lease subject to the terms of this Agreement, by replacing
Schedule 1 with a new Schedule 1, which describes such other lease and
which is initialed by both parties.
"SPACE SIZE RATIOS" means, (i) withrespect to any Subleased Premises,
the ratio that the size of the Subleased Premises bears to the size of
the entire Leased Premises; and (ii) with respect to any Leased
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Premises, the ratio that the size of the Leased Premises, exclusive of
the Subleased Premises, bears to the size of the entire Leased
Premises, with all such sizes being as reflected on Schedule 1.
"SUBLEASED PREMISES" means the portion of the Leased Premises occupied
by Sublessee as described on Schedule 1, individually or collectively,
as the context may require.
"TRANSFER" shall have the meaning ascribed to it in Section 10(a).
2. SUBLEASE. Sublessor does hereby sublease, demise and let unto
Sublessee, and Sublessee does hereby sublease from Sublessor, each of the
Subleased Premises upon the terms and conditions set forth below.
3. PRIORITY OF PRIME LEASE. This Agreement, as it relates to the
Subleased Premises, is expressly subject and subordinate to the applicable
Prime Lease and, subject to the modifications set forth in this Agreement, all
the terms, conditions and covenants therein contained. Except to the extent
otherwise expressly set forth in this Agreement, in which event the terms of
this Agreement shall prevail, all the terms, covenants and conditions of a
Prime Lease shall be applicable to this Agreement with respect to the
corresponding Subleased Premises with the same force and effect as if Sublessor
were the landlord under the Prime Lease and Sublessee were the tenant
thereunder, and the provisions of the Prime Lease are incorporated herein by
reference with the same force and effect as if they were fully set forth herein
(except to the extent that they are modified by the terms of this Agreement).
Sublessee shall assume and fully perform and discharge, with regard to the
Subleased Premises, all the obligations of Sublessor as tenant under the Prime
Lease during the Lease Term. In the event of any breach by Sublessee of any
term, covenant or condition of this Agreement, Sublessor shall have all the
rights against Sublessee as would be available to the Lessor against the
Sublessor as tenant under the applicable Prime Lease if such breach were by
Sublessor thereunder.
4. TERM. The term of the sublease granted herein shall be coextensive
with the Lease Term of the applicable Prime Lease, unless sooner terminated as
provided herein. Sublessee acknowledges that the Lease Term may include renewal
or extension options exercisable by Sublessor and that the exercise of any such
option shall be mutually determined by Sublessor and Sublessee. Sublessor will
notify Sublessee in the event Sublessor has determined not to exercise any
renewal or extension option and will offer to assign the Prime Lease, to the
extent permitted under such Prime Lease or by the Lessor, or otherwise to
cooperate with Sublessee to allow Sublessee, in its discretion, to exercise any
such option with respect to the Leased Premises, so long as Sublessor has no
responsibility or liability under the Prime Lease after expiration of the Lease
Term.
5. UTILITIES/OTHER SERVICES.
(a) Except as otherwise specified herein, the only services,
utilities or rights to which Sublessee is entitled under this
Agreement with respect to the Subleased Premises are those to which
Sublessor is entitled from the Lessor under the applicable Prime
Lease, and Sublessor shall have no liability to Sublessee for the
failure to provide such services, utilities or rights unless such
failure to provide same is the result of some act or omission of
Sublessor under the Prime Lease. In addition, Sublessee shall not be
entitled to utility services greater than that which it was receiving
(if Sublessee was in possession) prior to the date hereof.
(b) If any utility services to the Leased Premises are not
separately metered as between the Subleased Premises and the remainder
of the Leased Premises, the accounts shall be in the name of
Sublessor, or the Lessor if required by the Prime Lease, and the
payments to the utility companies or the Lessor, as the case may be,
shall be shared prorata by Sublessee and Sublessor based on the Space
Size Ratios and without regard to consumption. Sublessee shall pay its
share of same to Sublessor on or before the later of: (i) five (5)
business days after Sublessee receives an invoice (including a copy of
the
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Lessor's invoice, if any) for same (if the obligation is a recurring
one, only one notice that specifies the due dates shall be required);
or (ii) the date such payment is due and payable to the utility
company or the Lessor, as the case may be.
6. MONETARY OBLIGATIONS.
(a) All monetary obligations of Sublessor under a Prime Lease
shall be shared prorata by Sublessee and Sublessor based on the Space
Size Ratios.
(b) Sublessee shall pay its prorata share of such monetary
obligations to Sublessor on or before the later of: (i) five (5)
business days after Sublessee's receipt of written notice of such
obligation and a copy of the Lessor's invoice, if any (if the
obligation is a recurring one, only one notice that specifies the due
dates shall be required); or (ii) the date Sublessor is required to
pay such monetary obligations to the Lessor.
7. NON-MONETARY OBLIGATIONS. In the event any non-monetary obligation
of the tenant under a Prime Lease, other than those for which specific
provision is made in this Agreement, is not attributable to the Subleased
Premises exclusively or the remainder of the Leased Premises exclusively, such
obligation shall be performed by Sublessor and the cost of performing same
shall be shared prorata by Sublessee and Sublessor based on the Space Size
Ratios.
8. TERMINATION RIGHTS. All rights of the tenant to terminate a Prime
Lease shall belong exclusively to Sublessor and may be exercised by Sublessor
in its sole and absolute discretion without liability to Sublessee; provided,
however, Sublessor will notify Sublessee of its intent to terminate a Prime
Lease and will offer to assign the Prime Lease to Sublessee, to the extent
permitted under such Prime Lease or by the Lessor, so long as Sublessor has no
responsibility or liability under the Prime Lease after such assignment.
Sublessee acknowledges that in the event of any such termination, this
Agreement shall terminate with respect to such Prime Lease.
9. ACCESS/ALTERATIONS.
(a) The parties acknowledge that certain of the Leased Premises
may be configured such that Sublessor may need access to the Subleased
Premises and Sublessee may need access to the remainder of the Leased
Premises for purposes of maintaining or making adjustments or repairs
to facilities serving such party's premises or for purposes of using
rest room facilities or stock or storage rooms or for such other
reasonable purposes. The parties hereby grant each other access
through their respective premises for such purposes, provided that the
party exercising such right does not unreasonably interfere with the
business of the other party.
(b) No party may make any alterations to its premises that would
adversely affect the other party's business or use or occupancy of its
premises.
10. ASSIGNMENT AND SUBLETTING.
(a) Sublessee may not assign this Agreement, or allow it to be
assigned, in whole or in part, by operation of law or otherwise or
mortgage or pledge the same, or sublet the Subleased Premises, or any
part thereof (any of the foregoing transactions is herein referred to
as a "Transfer"), without the prior written consent of Sublessor,
which consent may be withheld by Sublessor in its sole and absolute
discretion without regard to standards of reasonableness.
Notwithstanding the foregoing, but subject to the terms of the Prime
Lease, Sublessee may effect a Transfer, without the consent of
Sublessor, to an
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Affiliate of Sublessee or Sublessor, provided that if at any time
after such permitted Transfer the transferee is no longer an Affiliate
of either Sublessor or Sublessee, the event terminating such
affiliation shall be deemed a Transfer subject to Sublessor's consent
pursuant to the preceding sentence.
(b) In the event of any Transfer, whether or not Sublessor grants
its consent to such Transfer or has the right to withhold its consent
to such Transfer, Sublessee shall remain fully liable to perform its
duties under this Agreement following a Transfer.
(c) Any proposed Transfer shall also be subject to the
restrictions and requirements set forth in the Prime Lease. Any
purported Transfer consummated in violation of the provisions of this
Section 10 shall be null and void and of no force or effect.
(d) In the event Sublessor intends to assign a Prime Lease or
further sublet the Leased Premises exclusive of the Subleased Premises
to a person or entity that is not an Affiliate of Sublessor, Sublessor
shall give Sublessee written notice of such proposed assignment or
sublease at least sixty (60) days prior to the effective date of such
assignment or sublease, and Sublessee shall have the right to
terminate this Agreement with respect to such Prime Lease by giving
written notice thereof to Sublessor prior to such effective date.
Sublessee's termination notice shall specify the termination's
effective date, which shall be no later than sixty (60) days after the
effective date of the Sublessor's assignment or sublease. If Sublessee
does not elect to terminate this Agreement with respect to such Prime
Lease or such assignment or sublease is to an Affiliate of Sublessor,
the following shall be conditions precedent to the effectiveness of
such assignment or sublease: (i) in the case of an assignment,
Sublessor shall cause the assignee to assume and be bound by the terms
of this Agreement, but only to the extent such terms apply to such
Prime Lease, and, notwithstanding such assignment, Sublessor shall not
be released from and shall remain fully liable under the terms of this
Agreement with respect to such Prime Lease; and (ii) in the case of a
sublease, Sublessor shall cause the sublessee to acknowledge the
rights of Sublessee under this Agreement with respect to the Subleased
Premises and the remainder of the Leased Premises and agree that its
possession is subject to such rights of Sublessee.
11. NO DEFAULT UNDER PRIME LEASE.
(a) Sublessee shall do nothing nor permit anything to be done
that would cause the Prime Lease to be terminated or forfeited because
of any right of termination or forfeiture reserved or vested in the
Lessor under the Prime Lease or that would cause Sublessor to be in
default under the Prime Lease or to pay damages or any penalty (e.g.,
late charges). Except as may be due to the default by Sublessor under
the Prime Lease or except as may be due to the negligence or willful
misconduct of Sublessor, Sublessee will defend, indemnify and hold
harmless Sublessor from and against all claims, damages, losses,
liabilities, obligations and costs (including, without limitation,
reasonable attorney's fees) of any kind arising from any breach or
default on the part of Sublessee by reason of which the Prime Lease
may be terminated or forfeited or Sublessor found to be in default
thereunder or the Lessor may be entitled to damages or a penalty.
(b) Sublessor shall do nothing nor permit anything to be done
that would cause the Prime Lease to be terminated or forfeited because
of any right of termination or forfeiture reserved or vested in the
Lessor under the Prime Lease or that would cause Sublessor to be in
default under the Prime Lease or to pay damages or any penalty (e.g.,
late charges). Except as may be due to the default by Sublessee under
this Agreement or except as may be due to the negligence or willful
misconduct of Sublessee, Sublessor will defend, indemnify and hold
harmless Sublessee from and against all claims, damages, losses,
liabilities, obligations and costs (including, without limitation,
reasonable attorney's fees) of any
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kind arising from any breach or default on the part of Sublessor by
reason of which the Prime Lease may be terminated or forfeited or the
Lessor may be entitled to damages or a penalty.
12. FAMILIARITY WITH PRIME LEASE. Sublessee represents and
acknowledges that it is familiar with the terms of the Prime Leases, copies of
which have been given by Sublessor to Sublessee.
13. CONSENT/APPROVALS. In the event Sublessee seeks a consent or
approval from Sublessor with respect to any matter to which such consent or
approval is required under this Agreement or the Prime Lease, then: (i) the
time period, if any, in which Sublessor shall be required to respond to
Sublessee shall be extended by ten (10) days after the expiration of any time
period in which the Lessor has to respond under the Prime Lease; and (ii) the
denial of such consent or approval by the Lessor shall be conclusive and
binding on Sublessee; provided, however, that where consent or approval of the
Lessor under a Prime Lease is required, Sublessor shall use good faith efforts,
unless a different standard is specified herein with respect to a particular
matter, to obtain such consent or approval from the Lessor, except that nothing
herein shall require Sublessor to make any payment, or to amend any terms of
such Prime Lease in a way that would have an adverse effect on Sublessor, in
respect of such consent or approval.
14. DEFAULT NOTICE FROM LESSOR.
(a) In the event Sublessor receives a notice of default from the
Lessor with respect to any matter pertaining to the Subleased Premises
or any obligation of Sublessee under this Agreement, Sublessor shall
immediately notify Sublessee of same in writing, and if Sublessee
fails to promptly commence the cure of such default or fails to cure
such default as of a date that is at least 15 days prior to the
expiration of the applicable cure period under the Prime Lease,
Sublessor shall have the right, but no obligation, to immediately cure
such default, and Sublessee shall reimburse Sublessor for the costs
incurred in connection with curing such default within thirty (30)
days after receipt of an invoice therefor from Sublessor.
(b) In the event: (i) Sublessor receives a notice of any monetary
default from the Lessor with respect to any matter pertaining to the
Leased Premises that does not pertain to any obligation of Sublessee
under this Agreement; (ii) Sublessor is not contesting or undertaking
to cure the alleged default; and (iii) the Prime Lease permits a
sublessee to cure such a default, then Sublessor shall immediately
notify Sublessee of same in writing, and Sublessee shall have the
right, but no obligation to immediately cure such default but shall
not be entitled to reimbursement from Sublessor for the costs incurred
in connection with such cure.
15. SIGNAGE. Sublessee shall have the right to maintain any existing
signage it may have in respect of any Subleased Premises. If Sublessee does not
have a sign in respect of any Subleased Premises, Sublessee shall have the
right to install a sign on such Subleased Premises provided it conforms to the
sign criteria set forth in the Prime Lease and does not impair the rights of
Sublessor to maintain its signage.
16. REQUIRED NOTICE UNDER PRIME LEASE. Sublessee shall promptly give
written notice to Sublessor of: (i) all claims, demands or controversies by or
with the Lessor under the Prime Lease; or (ii) any injury, death or property
damage arising on or about the Subleased Premises. Sublessor shall promptly
give written notice to Sublessee of: (a) all claims, demands or controversies
by or with the Lessor under the Prime Lease; or (b) any injury, death or
property damage arising on or about the Leased Premises.
17. ACCEPTING SUBLEASED PREMISES "AS IS". Sublessee acknowledges that
it is familiar with the Subleased Premises and has operated therein prior to
the date hereof. Sublessee accepts and has accepted possession of the Subleased
Premises "AS IS." Sublessee acknowledges that, notwithstanding anything
contrary
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in the Prime Lease, Sublessor has made no representations or warranties with
respect to the Subleased Premises or to the condition thereof.
18. NO WAIVER. No waiver or modification by a party of any covenant,
agreement, term, provision or condition of this Agreement shall be deemed to
have been made unless expressed in writing and signed by such party. No
surrender by Sublessee of possession of the Subleased Premises or of any part
thereof or of any remainder of the term of this Agreement shall release
Sublessee from any of its obligations hereunder.
19. NOTICES. Any notice or demand which either party may or must give
to the other under this Agreement shall be given in the same manner for giving
notices under the Prime Lease, but addressed as follows:
IF TO SUBLESSOR: Kennametal Inc.
Xxxxx Xxxxx 000 Xxxxx
P. O. Xxx 000
Xxxxxxx, XX 00000
Attn: Corporate Real Estate Department
Fax No.:_________________
IF TO SUBLESSEE: J&L America, Inc.
Livonia Execuive Park
0000 Xxxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: ___________________
Fax No.:_________________
Either party may, by notice in writing, direct that future notices or demands
be sent to a different address.
20. SUCCESSORS. The covenants and agreements herein contained shall
bind and inure to the benefit of Sublessor and Sublessee and their respective
permitted successors and assigns.
21. SEVERABILITY. If any provisions of this Agreement shall be held to
be invalid or unenforceable, the validity and enforceability of the remaining
provisions of this Agreement shall not be affected thereby.
22. GOVERNING LAW. This Agreement shall be construed in accordance
with, and governed by, the laws of the State of Pennsylvania without regard to
the conflicts of laws provisions of any jurisdiction.
23. FURTHER ASSURANCES. Sublessor and Sublessee shall execute,
acknowledge and deliver such instruments and take such other action as may be
necessary or advisable to carry out their rights and obligations under this
Agreement, including the execution of any agreement or instrument required by
the Lessor under the Prime Lease. In addition, if Sublessee or Sublessor
desires to enter into a direct and separate lease with a Lessor for the
Subleased Premises or the remainder of the Leased Premises, respectively, the
other party shall cooperate in good faith and likewise agree to enter into a
direct and separate lease for its premises provided that such other party's new
lease is on terms at least as favorable as the terms of this Agreement, in the
case of Sublessee, or the terms of the Prime Lease, in the case of Sublessor.
24. AMENDMENT TO PRIME LEASE Sublessor may not make any amendment to a
Prime Lease that would impair or reduce the rights or increase the obligations
of Sublessee under this Agreement, without the written consent of Sublessee.
Sublessor shall furnish Sublessee with a copy of any amendment to the Prime
Lease.
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25. ARBITRATION. Except for the non-payment of rental or other charges
due by Sublessee under this Agreement (unless Sublessee first pays under
protest as provided for below), or in the event that any action or inaction
taken by Sublessee would cause Sublessor to be in default under a Prime Lease,
all disputes and disagreements between Sublessor and Sublessee shall be
resolved pursuant to an arbitration proceeding pursuant to the rules of the
American Arbitration Association. The provisions of this Agreement contain the
sole and exclusive method, means and procedure to resolve, as between Sublessor
and Sublessee, any and all disputes or disagreements.
IN WITNESS WHEREOF, the parties hereto have caused these presents to
be executed the day and year first written above.
SUBLESSOR: SUBLESSEE:
KENNAMETAL INC. J&L AMERICA, INC.
By _____________________________ By ___________________________
Name ___________________________ Name _________________________
Title __________________________ Title ________________________
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SCHEDULE 1
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SHARED FACILITIES AGREEMENT
THIS SHARED FACILITIES AGREEMENT is entered into as of ______________,
1997 (this "Agreement"), by and between J&L America, Inc., a Michigan
corporation ("Sublessor"), and Kennametal Inc., a Pennsylvania corporation
("Sublessee").
RECITALS
A. Sublessor is a tenant under each of the lease agreements
described on Schedule 1 attached hereto and made a part
hereof.
B. Sublessee has occupied, and desires to continue to occupy,
all or a portion of the premises leased by Sublessor under
such lease agreements.
C. Sublessor and Sublessee desire to evidence their agreement
relating to such shared occupancy upon the terms and
conditions set forth below.
NOW, THEREFORE, in consideration of the covenants and agreements set
forth herein, and intending to be legally bound hereby, the parties covenant
and agree as follows:
1. DEFINITIONS. In addition to the definitions set forth in the
Preamble, the following are the defined terms used in this Agreement:
"AFFILIATE" means a corporation, partnership or other business entity
which directly, or indirectly, controls, is controlled by, or is under
common control with another corporation, partnership or other business
entity; provided, however, that for purposes of this Agreement,
Sublessee and its subsidiaries (other than Sublessor and its
subsidiaries) shall not be Affiliates of Sublessor nor shall Sublessor
and its subsidiaries be Affiliates of Sublessee. If more than 50% of
the voting stock of a corporation shall be owned by another
corporation or by a partnership or other business entity, the
corporation whose stock is so owned shall be deemed to be controlled
by the corporation, partnership or business.
"LEASE TERM" means the initial term of a Prime Lease as it may be
extended by Sublessor pursuant to a renewal or extension option
therein.
"LEASED PREMISES" means the premises in which Sublessor has a
leasehold interest under a Prime Lease or all such premises,
collectively, as the context may require.
"LESSOR" means the landlord under a Prime Lease.
"PRIME LEASE" means each of the leases described on Schedule 1; all
such leases are collectively referred to as the "Prime Leases." The
parties may, after the date hereof, designate any other lease as a
Prime Lease subject to the terms of this Agreement, by replacing
Schedule 1 with a new Schedule 1, which describes such other lease and
which is initialed by both parties.
"SPACE SIZE RATIOS" means (i) with respect to any Subleased Premises,
the ratio that the size of any Subleased Premises bears to the size of
the entire Leased Premises; and (ii) with respect to any Leased
Premises, the ratio that the size of the Leased Premises, exclusive of
the Subleased Premises, bears to the size of the entire Leased
Premises, with all such sizes being as reflected on Schedule 1.
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"SUBLEASED PREMISES" means the portion of the Leased Premises occupied
by Sublessee as described on Schedule 1, individually or collectively,
as the context may require.
"TRANSFER" shall have the meaning ascribed to it in Section 10(a).
2. SUBLEASE. Sublessor does hereby sublease, demise and let unto
Sublessee, and Sublessee does hereby sublease from Sublessor, each of the
Subleased Premises upon the terms and conditions set forth below.
3. PRIORITY OF PRIME LEASE. This Agreement, as it relates to the
Subleased Premises, is expressly subject and subordinate to the applicable
Prime Lease and, subject to the modifications set forth in this Agreement, all
the terms, conditions and covenants therein contained. Except to the extent
otherwise expressly set forth in this Agreement, in which event the terms of
this Agreement shall prevail, all the terms, covenants and conditions of a
Prime Lease shall be applicable to this Agreement with respect to the
corresponding Subleased Premises with the same force and effect as if Sublessor
were the landlord under the Prime Lease and Sublessee were the tenant
thereunder, and the provisions of the Prime Lease are incorporated herein by
reference with the same force and effect as if they were fully set forth herein
(except to the extent that they are modified by the terms of this Agreement).
Sublessee shall assume and fully perform and discharge, with regard to the
Subleased Premises, all the obligations of Sublessor as tenant under the Prime
Lease during the Lease Term. In the event of any breach by Sublessee of any
term, covenant or condition of this Agreement, Sublessor shall have all the
rights against Sublessee as would be available to the Lessor against the
Sublessor as tenant under the applicable Prime Lease if such breach were by
Sublessor thereunder.
4. TERM. The term of the sublease granted herein shall be coextensive
with the Lease Term of the applicable Prime Lease, unless sooner terminated as
provided herein. Sublessee acknowledges that the Lease Term may include renewal
or extension options exercisable by Sublessor and that the exercise of any such
option shall be mutually determined by Sublessor and Sublessee. Sublessor will
notify Sublessee in the event Sublessor has determined not to exercise any
renewal or extension option and will offer to assign the Prime Lease, to the
extent permitted under such Prime Lease or by the Lessor, or otherwise to
cooperate with Sublessee to allow Sublessee, in its discretion, to exercise any
such option with respect to the Leased Premises, so long as Sublessor has no
responsibility or liability under the Prime Lease after expiration of the Lease
Term.
5. UTILITIES/OTHER SERVICES.
(a) Except as otherwise specified herein, the only services,
utilities or rights to which Sublessee is entitled under this
Agreement with respect to the Subleased Premises are those to which
Sublessor is entitled from the Lessor under the applicable Prime
Lease, and Sublessor shall have no liability to Sublessee for the
failure to provide such services, utilities or rights unless such
failure to provide same is the result of some act or omission of
Sublessor under the Prime Lease. In addition, Sublessee shall not be
entitled to utility services greater than that which it was receiving
(if Sublessee was in possession) prior to the date hereof.
(b) If any utility services to the Leased Premises are not
separately metered as between the Subleased Premises and the remainder
of the Leased Premises, the accounts shall be in the name of
Sublessor, or the Lessor if required by the Prime Lease, and the
payments to the utility companies or the Lessor, as the case may be,
shall be shared prorata by Sublessee and Sublessor based on the Space
Size Ratios and without regard to consumption. Sublessee shall pay its
share of same to Sublessor on or before the later of: (i) five (5)
business days after Sublessee receives an invoice (including a copy of
the Lessor's invoice, if any) for same (if the obligation is a
recurring one, only one notice that specifies the due dates shall be
required); or (ii) the date such payment is due and payable to the
utility company or the Lessor, as the case may be.
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6. MONETARY OBLIGATIONS.
(a) All monetary obligations of Sublessor under a Prime Lease
shall be shared prorata by Sublessee and Sublessor based on the Space
Size Ratios.
(b) Sublessee shall pay its prorata share of such monetary
obligations to Sublessor on or before the later of: (i) five (5)
business days after Sublessee's receipt of written notice of such
obligation and a copy of the Lessor's invoice, if any (if the
obligation is a recurring one, only one notice that specifies the due
dates shall be required); or (ii) the date Sublessor is required to
pay such monetary obligations to the Lessor.
7. NON-MONETARY OBLIGATIONS. In the event any non-monetary obligation
of the tenant under a Prime Lease, other than those for which specific
provision is made in this Agreement, is not attributable to the Subleased
Premises exclusively or the remainder of the Leased Premises exclusively, such
obligation shall be performed by Sublessor and the cost of performing same
shall be shared prorata by Sublessee and Sublessor based on the Space Size
Ratios.
8. TERMINATION RIGHTS. All rights of the tenant to terminate a Prime
Lease shall belong exclusively to Sublessor and may be exercised by Sublessor
in its sole and absolute discretion without liability to Sublessee; provided,
however, Sublessor will notify Sublessee of its intent to terminate a Prime
Lease and will offer to assign the Prime Lease to Sublessee, to the extent
permitted under such Prime Lease or by the Lessor, so long as Sublessor has no
responsibility or liability under the Prime Lease after such assignment.
Sublessee acknowledges that in the event of any such termination, this
Agreement shall terminate with respect to such Prime Lease.
9. ACCESS/ALTERATIONS.
(a) The parties acknowledge that certain of the Leased Premises
may be configured such that Sublessor may need access to the Subleased
Premises and Sublessee may need access to the remainder of the Leased
Premises for purposes of maintaining or making adjustments or repairs
to facilities serving such party's premises or for purposes of using
rest room facilities or stock or storage rooms or for such other
reasonable purposes. The parties hereby grant each other access
through their respective premises for such purposes, provided that the
party exercising such right does not unreasonably interfere with the
business of the other party.
(b) No party may make any alterations to its premises that would
adversely affect the other party's business or use or occupancy of its
premises.
10. ASSIGNMENT AND SUBLETTING.
(a) Sublessee may not assign this Agreement, or allow it to be
assigned, in whole or in part, by operation of law or otherwise or
mortgage or pledge the same, or sublet the Subleased Premises, or any
part thereof (any of the foregoing transactions is herein referred to
as a "Transfer"), without the prior written consent of Sublessor,
which consent may be withheld by Sublessor in its sole and absolute
discretion without regard to standards of reasonableness.
Notwithstanding the foregoing, but subject to the terms of the Prime
Lease, Sublessee may effect a Transfer, without the consent of
Sublessor, to an Affiliate of Sublessee or Sublessor, provided that if
at any time after such permitted Transfer the transferee is no longer
an Affiliate of either Sublessor or Sublessee, the event terminating
such affiliation shall be deemed a Transfer subject to Sublessor's
consent pursuant to the preceding sentence.
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(b) In the event of any Transfer, whether or not Sublessor grants
its consent to such Transfer or has the right to withhold its consent
to such Transfer, Sublessee shall remain fully liable to perform its
duties under this Agreement following a Transfer.
(c) Any proposed Transfer shall also be subject to the
restrictions and requirements set forth in the Prime Lease. Any
purported Transfer consummated in violation of the provisions of this
Section 10 shall be null and void and of no force or effect.
(d) In the event Sublessor intends to assign a Prime Lease or
further sublet the Leased Premises exclusive of the Subleased Premises
to a person or entity that is not an Affiliate of Sublessor, Sublessor
shall give Sublessee written notice of such proposed assignment or
sublease at least sixty (60) days prior to the effective date of such
assignment or sublease, and Sublessee shall have the right to
terminate this Agreement with respect to such Prime Lease by giving
written notice thereof to Sublessor prior to such effective date.
Sublessee's termination notice shall specify the termination's
effective date, which shall be no later than sixty (60) days after the
effective date of the Sublessor's assignment or sublease. If Sublessee
does not elect to terminate this Agreement with respect to such Prime
Lease or such assignment or sublease is to an Affiliate of Sublessor,
the following shall be conditions precedent to the effectiveness of
such assignment or sublease: (i) in the case of an assignment,
Sublessor shall cause the assignee to assume and be bound by the terms
of this Agreement, but only to the extent such terms apply to such
Prime Lease, and, notwithstanding such assignment, Sublessor shall not
be released from and shall remain fully liable under the terms of this
Agreement with respect to such Prime Lease; and (ii) in the case of a
sublease, Sublessor shall cause the sublessee to acknowledge the
rights of Sublessee under this Agreement with respect to the Subleased
Premises and the remainder of the Leased Premises and agree that its
possession is subject to such rights of Sublessee.
11. NO DEFAULT UNDER PRIME LEASE.
(a) Sublessee shall do nothing nor permit anything to be done
that would cause the Prime Lease to be terminated or forfeited because
of any right of termination or forfeiture reserved or vested in the
Lessor under the Prime Lease or that would cause Sublessor to be in
default under the Prime Lease or to pay damages or any penalty (e.g.,
late charges). Except as may be due to the default by Sublessor under
the Prime Lease or except as may be due to the negligence or willful
misconduct of Sublessor, Sublessee will defend, indemnify and hold
harmless Sublessor from and against all claims, damages, losses,
liabilities, obligations and costs (including, without limitation,
reasonable attorney's fees) of any kind arising from any breach or
default on the part of Sublessee by reason of which the Prime Lease
may be terminated or forfeited or Sublessor found to be in default
thereunder or the Lessor may be entitled to damages or a penalty.
(b) Sublessor shall do nothing nor permit anything to be done
that would cause the Prime Lease to be terminated or forfeited because
of any right of termination or forfeiture reserved or vested in the
Lessor under the Prime Lease or that would cause Sublessor to be in
default under the Prime Lease or to pay damages or any penalty (e.g.,
late charges). Except as may be due to the default by Sublessee under
this Agreement or except as may be due to the negligence or willful
misconduct of Sublessee, Sublessor will defend, indemnify and hold
harmless Sublessee from and against all claims, damages, losses,
liabilities, obligations and costs (including, without limitation,
reasonable attorney's fees) of any kind arising from any breach or
default on the part of Sublessor by reason of which the Prime Lease
may be terminated or forfeited or the Lessor may be entitled to
damages or a penalty.
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12. FAMILIARITY WITH PRIME LEASE. Sublessee represents and
acknowledges that it is familiar with the terms of the Prime Leases, copies of
which have been given by Sublessor to Sublessee.
13. CONSENT/APPROVALS. In the event Sublessee seeks a consent or
approval from Sublessor with respect to any matter to which such consent or
approval is required under this Agreement or the Prime Lease, then: (i) the
time period, if any, in which Sublessor shall be required to respond to
Sublessee shall be extended by ten (10) days after the expiration of any time
period in which the Lessor has to respond under the Prime Lease; and (ii) the
denial of such consent or approval by the Lessor shall be conclusive and
binding on Sublessee; provided, however, that where consent or approval of the
Lessor under a Prime Lease is required, Sublessor shall use good faith efforts,
unless a different standard is specified herein with respect to a particular
matter, to obtain such consent or approval from the Lessor, except that nothing
herein shall require Sublessor to make any payment, or to amend any terms of
such Prime Lease in a way that would have an adverse effect on Sublessor, in
respect of such consent or approval.
14. DEFAULT NOTICE FROM LESSOR.
(a) In the event Sublessor receives a notice of default from the
Lessor with respect to any matter pertaining to the Subleased Premises
or any obligation of Sublessee under this Agreement, Sublessor shall
immediately notify Sublessee of same in writing, and if Sublessee
fails to promptly commence the cure of such default or fails to cure
such default as of a date that is at least 15 days prior to the
expiration of the applicable cure period under the Prime Lease,
Sublessor shall have the right, but no obligation, to immediately cure
such default, and Sublessee shall reimburse Sublessor for the costs
incurred in connection with curing such default within thirty (30)
days after receipt of an invoice therefor from Sublessor.
(b) In the event: (i) Sublessor receives a notice of any monetary
default from the Lessor with respect to any matter pertaining to the
Leased Premises that does not pertain to any obligation of Sublessee
under this Agreement; (ii) Sublessor is not contesting or undertaking
to cure the alleged default; and (iii) the Prime Lease permits a
sublessee to cure such a default, then Sublessor shall immediately
notify Sublessee of same in writing, and Sublessee shall have the
right, but no obligation to immediately cure such default but shall
not be entitled to reimbursement from Sublessor for the costs incurred
in connection with such cure.
15. SIGNAGE. Sublessee shall have the right to maintain any existing
signage it may have in respect of any Subleased Premises. If Sublessee does not
have a sign in respect of any Subleased Premises, Sublessee shall have the
right to install a sign on such Subleased Premises provided it conforms to the
sign criteria set forth in the Prime Lease and does not impair the rights of
Sublessor to maintain its signage.
16. REQUIRED NOTICE UNDER PRIME LEASE. Sublessee shall promptly give
written notice to Sublessor of: (i) all claims, demands or controversies by or
with the Lessor under the Prime Lease; or (ii) any injury, death or property
damage arising on or about the Subleased Premises. Sublessor shall promptly
give written notice to Sublessee of: (a) all claims, demands or controversies
by or with the Lessor under the Prime Lease; or (b) any injury, death or
property damage arising on or about the Leased Premises.
17. ACCEPTING SUBLEASED PREMISES "AS IS". Sublessee acknowledges that
it is familiar with the Subleased Premises and has operated therein prior to
the date hereof. Sublessee accepts and has accepted possession of the Subleased
Premises "AS IS." Sublessee acknowledges that, notwithstanding anything
contrary in the Prime Lease, Sublessor has made no representations or
warranties with respect to the Subleased Premises or to the condition thereof.
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18. NO WAIVER. No waiver or modification by a party of any covenant,
agreement, term, provision or condition of this Agreement shall be deemed to
have been made unless expressed in writing and signed by such party. No
surrender by Sublessee of possession of the Subleased Premises or of any part
thereof or of any remainder of the term of this Agreement shall release
Sublessee from any of its obligations hereunder.
19. NOTICES. Any notice or demand which either party may or must give
to the other under this Agreement shall be given in the same manner for giving
notices under the Prime Lease, but addressed as follows:
IF TO SUBLESSOR: J&L America, Inc.
Livonia Executive Park
0000 Xxxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attn:
Fax No.:_________________
IF TO SUBLESSEE: Kennametal Inc.
State Xxxxx 000 Xxxxx
X. X. Xxx 000
Xxxxxxx, XX 00000
Attn: Corporate Real Estate Department
Fax No.:_________________
Either party may, by notice in writing, direct that future notices or demands
be sent to a different address.
20. SUCCESSORS. The covenants and agreements herein contained shall
bind and inure to the benefit of Sublessor and Sublessee and their respective
permitted successors and assigns.
21. SEVERABILITY. If any provisions of this Agreement shall be held to
be invalid or unenforceable, the validity and enforceability of the remaining
provisions of this Agreement shall not be affected thereby.
22. GOVERNING LAW. This Agreement shall be construed in accordance
with, and governed by, the laws of the State of Pennsylvania without regard to
the conflicts of laws provisions of any jurisdiction.
23. FURTHER ASSURANCES. Sublessor and Sublessee shall execute,
acknowledge and deliver such instruments and take such other action as may be
necessary or advisable to carry out their rights and obligations under this
Agreement, including the execution of any agreement or instrument required by
the Lessor under the Prime Lease. In addition, if Sublessee or Sublessor
desires to enter into a direct and separate lease with a Lessor for the
Subleased Premises or the remainder of the Leased Premises, respectively, the
other party shall cooperate in good faith and likewise agree to enter into a
direct and separate lease for its premises provided that such other party's new
lease is on terms at least as favorable as the terms of this Agreement, in the
case of Sublessee, or the terms of the Prime Lease, in the case of Sublessor.
24. AMENDMENT TO PRIME LEASE Sublessor may not make any amendment to a
Prime Lease that would impair or reduce the rights or increase the obligations
of Sublessee under this Agreement, without the written consent of Sublessee.
Sublessor shall furnish Sublessee with a copy of any amendment to the Prime
Lease.
25. ARBITRATION. Except for the non-payment of rental or other charges
due by Sublessee under this Agreement (unless Sublessee first pays under
protest as provided for below), or in the event that any action or inaction
taken by Sublessee would cause Sublessor to be in default under a Prime Lease,
all disputes and disagreements between Sublessor and Sublessee shall be
resolved pursuant to an arbitration proceeding pursuant to the rules of the
American Arbitration Association. The provisions of this Agreement contain the
sole and
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exclusive method, means and procedure to resolve, as between Sublessor and
Sublessee, any and all disputes or disagreements.
IN WITNESS WHEREOF, the parties hereto have caused these presents to
be executed the day and year first written above.
SUBLESSOR: SUBLESSEE:
J&L AMERICA, INC. KENNAMETAL INC.
By ________________________________ By _______________________________
Name ______________________________ Name _____________________________
Title _____________________________ Title ____________________________
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SCHEDULE 1
