Exhibit 10.17
THIS
LEASE AGREEMENT (the “Lease”) made as of the 1st day of May, 2004, by
and between Sterling Realty Trust, a trust made under a Declaration of Trust dated
November 24, 1950, and recorded in Hampden County Registry of Deeds as Document No. 26882,
in Book 2088, Page 123 (the “Landlord”), and Mestek, Inc., and its successors
and assigns (the “Tenant”) a Pennsylvania corporation, with offices at 000 Xxxxx
Xxx Xxxxxx, Xxxxxxxxx, XX 00000.
RECITAL
A.
Landlord and Tenant have entered into that certain Lease Agreement dated July 1,
1999, as amended, for the lease on a month-to-month basis of approximately 3,392
square feet on the 3rd and 4th floors of the Torrington
Building for use by Tenant’s Mestek Technology group (“MTI
Lease”); and
B.
Tenant wishes to rent an additional 13,172 square feet on the 2nd and
3rd floors of the Torrington Building for use by Tenant’s Gas
Products group;
WITNESSETH
THAT
FOR AND IN CONSIDERATION of the mutual covenants and agreements herein contained, and
intending to be legally bound, the parties hereto do hereby covenant and agree as follows:
1.
Lease of Premises. Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord all of the 2nd floor, and a portion of the 3rd
Floor, and a portion of the 4th floor of the premises commonly known
as 000 Xxxxx Xxx Xxxxxx (“Torrington Building”), Xxxxxxxxx,
Xxxxxxxxxxxxx, 00000, representing 16,564 square feet, as indicated by the
drawings attached as Exhibit A to this Lease (the “Premises”),
which Premises is situated on that certain parcel of land described in
Exhibit B to this Lease (the “Property”), together with the
right and license to use the halls, lobbies, elevators, sidewalks, parking areas
and all other common areas of the Property, including the right to enter and use
the adjacent property located on the corner of Xxxxx Xxx Xxxxxx xxx Xxxxxxxxxxx
Xxxxxx as described in Exhibit C to this Lease, for the purposes of
automobile parking for Tenant, its officers, employees, agents and invitees.
This Lease supersedes the MTI Lease and incorporates the space previously leased
thereunder, and the MTI Lease is hereby terminated.
2. Term
| 2.1 |
Term.
The term of the Lease shall be for a period of sixty (60) months beginning on May 1, 2004
(the “Commencement Date”) and ending at 5:00 p.m. on April 30, 2009 (the “Termination
Date”). Tenant may in its sole and absolute discretion elect to renew this Lease for
an additional sixty (60) month period upon three (3) months advance notice to Landlord,
at an annual rent set forth in Section 3.3 below (the “Term”). |
2.2 Termination
| 2.2.1 |
This
Lease shall terminate at the end of the Term, as it may be extended, pursuant to Section
2.1, without the necessity of any notice from either Landlord or Tenant to terminate the
same. |
| 2.2.2 |
This
Lease may terminate at the election of Landlord in the event of any default of Tenant as
described in Article 11 below. |
| 2.2.3 |
Upon
the expiration or sooner termination of the Term, Tenant shall quietly and peacefully
surrender the Premises in good condition, reasonable wear and tear excepted, to Landlord.
All appurtenances, fixtures and leasehold improvements installed in the Premises, whether
by Landlord or Tenant, and whether at Landlord’s expense or Tenant’s expense
shall be and remain the property of Landlord. All non-fixture personal property owned by
Tenant and/or placed in the Premises shall remain the property of Tenant and shall be
removed prior to the end of the Term or such other time as Tenant may lose the right of
possession of the Premises. Any property of Tenant remaining in the Premises at the
expiration or other termination of the Term, or at such other time as Tenant may lose the
right of possession of the Premises, shall be deemed abandoned by Tenant and, at Landlord’s
option, shall become the property of Landlord. Landlord may remove such property and sell
or otherwise dispose of the same in any manner without liability or obligation to account
to Tenant therefor. Tenant shall pay Landlord on demand for all costs of Landlord in
removing, storing and disposing of any such property. |
3. Rent
| 3.1 |
Annual
Rent. Tenant shall pay to the Landlord at its offices in Xxxxxxxxx, XX 00000 or such
other address as Landlord may designate, at a rate of Twelve Dollars ($12.00) per square
foot of floor area, an annual rent (the “Annual Rent”) of One Hundred Ninety
Eight Thousand Seven Hundred Sixty-Eight Dollars and No/100 ($198,768.00), payable in
monthly installments of Sixteen Thousand Five Hundred Sixty-Four Dollars and No/100
($16,564.00), in advance of the first day of each month of the Term, without any
deduction, counterclaim, abatement or set-off whatsoever (except as may be expressly
authorized by the terms of this Lease). The Annual Rent to be paid by Tenant includes all
Operating Costs (as defined below) incurred by the Landlord for the Property as of the
date of this Lease. |
| 3.2 |
Additional
Rent. Tenant shall pay to Landlord as additional rent (the “Additional Rent”)
any increases or decreases in the Lessor’s actual costs of operating and maintaining
the Property (“Operating Costs”). |
| 3.2.1 |
Lessor
shall furnish to Lessee a written statement of the Operating Costs as of June 30, 2004
(the end of Lessor’s fiscal year) for the prior twelve (12) months, and this amount
shall be the base amount (“Base Amount”) to compare any increases or decreases
in the Operating Costs in subsequent years during the Term. Beginning on July 1, 2005,
and for each succeeding twelve month period during the Term, Landlord shall promptly
furnish to Tenant a written statement of the Operating Costs for the preceding year. The
amount by which the Operating Costs shall have increased or decreased over the Base
Amount shall be divided by the total rentable area in the building (which is acknowledged
by the parties as being 34,075 square feet) (“Increase per Square Foot,” or
“ISF”). Tenant shall pay as Additional Rent an amount equal to the ISF
multiplied by the area of the Premises as set forth in Section 1 of this Lease. The
Additional Rent shall be paid in full within ten (10) days of receipt of Landlord’s
written statement of the Operating Costs for the prior year. In no event shall the
Additional Rent be less that $0.00. |
| 3.2.2 |
For
purposes of this Section 3.2, the Operating Costs shall include any and all expenses
incurred by Lessor in connection with the operation, maintenance and repair of the
Property including, but not limited to, the following: charges or fees for, and taxes on,
the furnishing of electricity, fuel, water, sewer, natural gas, oil and other utilities;
any and all taxes, ad valorem taxes, assessments, impositions and charges whatsoever,
ordinary or extraordinary, general or special, foreseen or unforeseen, levied by any
governmental or public agency or department upon or with respect to the Premises, the
Property, or any improvements or fixtures thereon; any casualty and liability insurance
issued with respect to the Torrington Building and the Property; security (at Lessor’s
sole discretion); pest control; cleaning of windows and exterior curtain walls;
janitorial services; trash and snow removal; landscaping and repair and maintenance of
grounds; license fees and governmental permits; cleaning supplies; legal fees and costs
relating to the operation, repair or maintenance of the Property or incurred in order to
reduce operating expenses; services or management contracts with independent contractors
and general overhead; and the costs of any other items which, under generally accepted
accounting principles consistently applies from year to year with respect to the
Property. Operating Costs shall not include any of the following: cost of capital
improvements, except as mentioned above; expenses for painting, redecorating, or other
work which Lessor performs for any other tenant in the Property; interest, amortization,
or other payments on loans to Lessor, whether secured or unsecured; depreciation of the
Property or other said improvements; ground rent; leasing commissions; salaries, wages or
other compensation paid to officers or employees of Lessor; and any income, excess
profits, or franchise taxes or other such taxes imposed on or measured by the income of
Lessor from the operation of the Property. |
| 3.3 |
Adjusted
Annual Rent. If Tenant shall elect to extend the term of this Lease, as provided in
Section 2.1(b), then the Annual Rent shall be adjusted (the “Adjusted Annual Rent”)
as follows: |
| 3.3.1 |
The
Consumer Price Index for All Urban Consumers (CPI-U) using the years 1982-1984 as the
base period as published for the month on which the Commencement Date occurs (the “Base
Index”) shall be compared to such index as published for the month on which the
initial Termination Date occurs (the “Current Index”), and the change in the
Consumer Price Index shall be expressed as a percentage where a number equal to the
Current Index minus the Base Index shall be the numerator, and the Base Index shall be
the denominator (the “Percentage Increase”); provided however that the
Percentage Increase shall not be less than zero. |
| 3.3.2 |
The
Adjusted Annual Rent shall equal the Annual Rent plus the product of the Annual Rent
multiplied by one-half of the Percentage Increase; provided however that if the
Percentage Increase is equal to or less than zero percent (0.00%), then the Adjusted
Annual Rent shall equal $12 per square foot. For purposes of illustration only; the Base
Index as of March 2004 is equal to 187.4, and assuming the Current Index is 200 as of
April 30, 2009, then the Percentage Increase would equal 6.72% ((200 — 187.4) /
187.4), and the Adjusted Annual Rent would equal $12.40 per square foot ($12 + ($12*
(6.72% * ½ ))). |
4.
Insurance.
| 4.1 |
Property
Insurance. Landlord shall obtain and keep in force during the Term of this Lease a
policy of fire and extended coverage insurance with respect to the Premises. |
| 4.2 |
Liability
Insurance. Tenant shall obtain and keep in force during the term of this Lease a
policy of comprehensive public liability insurance in the amount of One Million Dollars
and No/100 ($1,000,000.00), insuring Tenant and, as additional insured, Landlord, against
any liability arising out of the use, occupancy, or maintenance of the Premises and all
areas appurtenant thereto. All such policies shall be written as primary policies not
contributing with and not only in excess of any coverage which Landlord may carry. |
| 4.3 |
Personal
Property Insurance. Tenant shall, at Tenant’s own expense, obtain and keep in
force during the term of this Lease a policy of personal property insurance in an amount
necessary to cover Tenants personal property on the Premises. The company or companies
writing any insurance which Tenant is required to take out and maintain pursuant to this
Lease, as well as the form of such insurance, shall at all times be subject to the
Landlord’s approval, and any such company or companies shall be licensed to do
business in Massachusetts. Each policy evidencing such insurance shall (a) shall contain
a provision by which the insured agrees that such policy shall not be canceled except
after thirty (30) days written notice to Landlord and its designee, and (b) shall provide
that coverage shall not be limited or denied by reason of the provisions in this Lease,
including those relating to limitations of liability and waivers of subrogation and other
rights. For all insurance policies procured by Tenant, a certificate of such insurance
shall at all times be deposited with Landlord. If Tenant shall fail to perform any of its
obligations under this Article 4, then in addition to any other remedies it may have,
Landlord may, but is not required to, perform the same, and the cost thereof, together
with interest thereon at the current prime rate of Fleet Bank, N.A., or any successor
thereto, shall be deemed Additional Rent and shall be payable upon Landlord’s
demand. |
5.
Improvements and Alterations.
| 5.1 |
Improvements
by Tenant. Tenant shall not make any alterations, renovations or improvements or
cause to be installed any fixtures, exterior signs, floor covering, interior or exterior
lighting or plumbing fixtures, shades or awnings or any other installations in, on, or to
the Premises or any part thereof (including, without limitation, any structural
alterations, or any cutting or drilling into any part of the Premises or any securing of
any fixture, apparatus or equipment of any kind to any part of the Premises) unless and
until Tenant shall have caused plans and specifications therefor to have been prepared,
at Tenant’s expense, by an architect or other duly qualified person and shall have
obtained Landlord’s written approval thereof. |
| 5.2 |
Mechanic’s
Liens. Tenant shall keep the Premises free from any liens arising out of any work or
service performed or material furnished by or for Tenant or any person or entity claiming
through or under Tenant. Notwithstanding the foregoing, if any mechanic’s or other
lien shall be filed against the Premises, purporting to be for labor, services or
material furnished or to be furnished at the request of Tenant, then Tenant shall at its
expense cause such lien to be discharged of record by payment, bond or otherwise, within
ninety (90) days after the filing thereof. If Tenant shall fail to cause such lien to be
discharged of record within such ninety (90) day period, Landlord, in addition to any
other remedies it may have, may cause such lien to be discharged by payment, bond or
otherwise, without investigation as to the validity thereof or as to any offsets or
defenses thereto, and Tenant shall, upon demand, reimburse Landlord for all amounts paid
and costs incurred, including attorneys’ fees, in having such lien discharged of
record. |
| 5.3 |
Contractor’s
Insurance. Prior to engaging any contractor, Tenant shall require any contractor
performing work on the Premises at Tenant’s request or on Tenant’s behalf to
carry and maintain such insurance in such amounts of coverage as Landlord may require
from time to time, including contractor’s liability coverage and workers’compensation
insurance and to name Landlord as an additional insured upon the contractor’s
insurance policy for the terms and purpose of the work upon the Premises. |
6.
Use of Premises. Tenant’s use and occupancy of the Premises shall be
for general office work and all other ancillary uses relating thereto. Tenant
shall not use or permit the Premises to be used for any significantly different
purposes without the prior written consent of Landlord.
| 6.1 |
Prohibited
Uses. Tenant shall not use or allow the Premises to be used for any improper,
immoral, unlawful or objectionable purpose, nor shall Tenant cause, maintain or permit
any nuisance in, on or about the Premises. Tenant shall not commit or allow to be
committed any material waste in or upon the Premises, reasonable wear and tear excepted.
Tenant shall not cause or permit any hazardous or toxic substance, material or waste
including without limitation any oil, pollutant, contaminant, hazardous waste, asbestos,
or other hazardous substance, as such term or similar terms are now defined, used or
understood in or under any federal, state, local or other governmental statute, rule,
regulation, ordinance or order which relates in any way to the protection of the
environment (the “Environmental Laws”) to be used, stored, released, dumped or
disposed of upon the Premises except in full compliance with and as otherwise allowed by
the Environmental Laws. 6.2 Compliance with Law. Tenant shall not use or permit
the use of the Premises in any way in conflict with any law or governmental rule. Tenant
shall, at Tenant’s sole cost, promptly comply in all material respects with all such
laws and governmental rules and regulations and with the requirements of any board of
underwriters or other similar bodies now or hereafter constituted relating to the
condition, use or occupancy of the Premises whether or not expressly ordered to do so by
the applicable governmental authority. |
7.
Maintenance and Repairs. Responsibility for maintenance and repairs shall
be allocated between Landlord and Tenant as follows:
| 7.1 |
Tenant’s
Obligations. By taking possession of the Premises, Tenant shall be deemed to have
accepted the Premises “as is”, in good condition and repair. Tenant shall, at
Tenant’s sole cost and expense, keep the Premises and each and every part thereof in
an orderly and sanitary condition, well-maintained and in good repair and appearance
(except as hereinafter provided with respect to Landlord’s obligations), including
without limitation, the maintenance, replacement, painting and repair of any doors, door
frames, windows, window casements, glass, floors and floor coverings, walls and wall
surfaces and coverings, and all plumbing, pipes, electrical service, including panels,
boxes, wiring and conduits and all heating, ventilating and air-conditioning systems
servicing the premises. Tenant shall, upon the expiration or sooner termination of this
Lease, surrender the Premises to Landlord in good condition, broom clean, ordinary wear
and tear excepted. Any damage to property or injury sustained by any person because of
mechanical, electrical, plumbing or any other equipment or installations, whose
maintenance and repair shall be the responsibility of Tenant, shall be the obligation of
and paid for by Tenant. Tenant shall indemnify and hold Landlord harmless from and
against all claims, actions, damages and liability in connection with Tenant’s
obligations under this Article 7, including, but not limited to, attorneys’ and
other professional fees, and any other costs and expenses which Landlord might reasonably
incur. Any damage to adjacent premises caused by Tenant’s use of the Premises shall
be repaired at the sole cost and expense of Tenant. |
| 7.2 |
Landlord’s
Obligations. Upon receipt of written notice of the need for the same, Landlord shall,
at Landlord’s expense, repair and maintain the structural portions of the Premises,
which include the foundation, exterior and load-bearing walls, structural members and
roof, and shall maintain (without the requirement of notice) the exterior grounds, common
areas, parking lots, sidewalks and walkways of the Property, including removal of snow
and ice as required. In the event such maintenance and repairs are necessitated in whole
or in part by the acts, neglect, fault, or omission of any duty by Tenant, Tenant’s
agents, servants, employees, or invitees, or any damage caused by breaking and entering,
Tenant shall pay to Landlord the entire cost of such maintenance and repairs. Except as
otherwise provided in this Section 7.2, there shall be no abatement of rent and no
liability of Landlord by reason of any injury to or interference with Tenant’s
business arising from the making of any repairs, alterations, or improvements in or to
any portion of the Premises or in or to fixtures, appurtenances, and equipment. Tenant
waives the right to make repairs that are Landlord’s obligation under this Lease at
Landlord’s expense under any law, statute, or ordinance now or hereafter in effect.
Landlord shall have no responsibility for the maintenance, repair or replacement of
anything which is Tenant’s obligation as set forth in Section 7.1. |
8.
Hold Harmless. To the extent permitted by law, and except to the extent
of Landlord’s acts or omissions for which Landlord is solely negligent,
Tenant shall indemnify and hold Landlord harmless from and against any and all
claims arising from, in connection with or related to (a) Tenant’s use of
the Premises, (b) the conduct of Tenant’s business, (c) any activity, work,
or other things, done, permitted, or suffered by Tenant in or about the
Premises, (d) any breach or default in the performance of any obligation on
Tenant’s part to be performed under the terms of this Lease, (e) any act or
negligence of Tenant or any officer, agent, employee, guest, or invitee of
Tenant and (f) all costs (including attorneys’ fees) and liabilities
incurred in or about the defense of any such claim or any action or proceeding
brought thereon. In any action or proceeding brought against Landlord by reason
of any such claim described herein, Tenant, upon notice from Landlord, shall
defend the same at Tenant’s sole expense conferring from time to time with
Landlord. To the extent permitted by law, Tenant hereby assumes all risk of
damage to property or injury to persons of whatever status in, upon, or about
the Premises from any cause other than the sole negligence of Landlord. Landlord
or Landlord’s agents shall not be liable for any loss or damage to persons
or property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water, or rain which may leak from any part of the Torrington
Building, upon the Premises or from the pipes, appliances, heating and air
conditioning system or plumbing works therein or from the road, street, or
subsurface, or from any other place resulting from dampness, or from any other
cause whatsoever, unless caused by or due to the sole negligence of Landlord or
Landlord’s agents. Tenant shall give prompt notice to Landlord in case of
casualty or accidents upon the Premises.
9.
Entry by Landlord. At any and all reasonable times during regular
business hours, upon one days’ prior notice to Tenant, Landlord reserves
and shall have the right to enter the Premises to inspect the same a reasonable
number of times, to submit the Premises to prospective purchasers or tenants, to
repair the Premises and any portion of the Torrington Building that Landlord may
deem necessary or desirable, without abatement of rent, and may for that purpose
erect scaffolding and other necessary structures where reasonably required by
the character of the work to be performed, using best efforts to avoid blocking
the entrance to the Premises or the Property and providing that the business of
Tenant shall not be interfered with unreasonably. Tenant hereby waives any claim
for damages or for any injury or inconvenience to or interference with
Tenant’s business, and any loss of occupancy to quiet enjoyment of the
Premises.
10.
Assignment and Subletting. Tenant shall not either voluntarily or by
operation of law assign, transfer, mortgage, pledge, hypothecate, or encumber
this Lease or any interest therein and shall not sublet the Premises or any part
thereof or any right or privilege appurtenant thereto or allow any person (the
employees, agents, servants, and invitees of Tenant excepted) to occupy or use
the Premises or any portion thereof without the prior written consent of
Landlord; provided, however, that Tenant may assign this Lease or sublet
the Premises to an affiliate of Tenant upon thirty (30) days prior written
notice to Landlord. Any such assignment or subletting without such required
consent shall be voidable by Landlord and may constitute a default under the
terms of this Lease. It is understood and agreed that Landlord may fully assign
or encumber Landlord’s interest in this Lease as Landlord. Landlord may
assign or encumber the Annual Rent and/or the Adjusted Annual Rent herein
provided to any person, partnership, corporation, or bank, and Tenant agrees
when notified in writing by the assignee of such assignment to make the rental
payments to assignee under the terms of said assignment.
11.
Tenant’s Default. The occurrence of any one or more of the following
events shall constitute an event of default and breach of this Lease by Tenant:
| 11.1 |
Abandonment.
Tenant vacates or abandons the Premises for a continuous period in excess of five (5)
business days. |
| 11.2 |
Failure
to Pay Obligations. Tenant fails to make any payment of Annual Rent or the Adjusted
Annual Rent, or any other payment required to be made by Tenant hereunder, as and when
due, where such failure shall continue for a period of ten (10) business days after
written notice thereof by Landlord to Tenant. |
| 11.3 |
Failure
to Observe Other Covenants. Tenant fails to observe or perform any of the covenants,
conditions, or provisions of this Lease to be observed or performed by Tenant, other than
described in Section 11.2 herein, where such failure shall continue for a period of
thirty (30) days after written notice thereof by Landlord to Tenant; provided, however,
that if the nature of Tenant’s default is such that more than thirty (30) days are
reasonably required for cure of such condition, then Tenant shall not be deemed to be in
default if Tenant commences such cure within said thirty (30) days and thereafter
diligently prosecutes such cure to completion. |
12.
Remedies on Default. In the event of any default or breach by Tenant,
Landlord may, at any time thereafter with or without notice or demand and
without limiting Landlord in the exercise of a right or remedy which Landlord
may have by reason of such default or breach, exercise any of the following
remedies:
| 12.1 |
Termination
of Possession. Landlord may terminate Tenant’s right to possession of the
Premises by written notice to Tenant or any other lawful means, terminate this Lease by
written notice to Tenant, revoke Tenant’s right to any free rent or other lease
concessions and recover the value of any such concessions made, re-enter and take
possession of the Premises and Tenant shall immediately surrender possession of the
Premises to Landlord. In such event, Landlord shall be entitled to recover from Tenant
all damages incurred by Landlord by reason of Tenant’s default, including without
limitation, all unpaid Annual Rent or the Adjusted Annual Rent and other obligations of
Tenant under this Lease including without limitation, accrued interest, the cost of
recovering possession of the Premises, the expenses of reletting, the costs of removing
persons and property from the Premises, the costs of repairing or altering the Premises
for reletting, brokers’commissions, and legal costs including attorneys’ fees
whether suit is brought or not, and any other costs or damages arising out of Tenant’s
default. Notwithstanding any termination of this Lease, re-entry or reletting of the
Premises, the liability of Tenant for the Annual Rent or the Adjusted Annual Rent and
other charges and adjustments for the balance of the Term shall not be extinguished and
Tenant shall pay and Landlord may recover from Tenant at the time of termination,
re-entry, or reletting, the amount of such rents reserved in this Lease for the balance
of the Term (even if in excess of the then reasonable rental value of the Premises or any
part thereof) without first terminating Tenant’s right to possession pursuant to
this Lease. Landlord reserves the right, at any time thereafter, to elect to terminate
Tenant’s right to possession to the Premises for the default that originally
resulted in the reletting. |
| 12.2 |
Enforcement
of Lease. Landlord may maintain Tenant’s right to possession, in which case this
Lease shall continue in effect whether or not Tenant shall have abandoned the Premises.
In such event, Landlord shall be entitled to enforce all of Landlord’s rights and
remedies under this Lease, including the right to recover the Annual Rent or the Adjusted
Annual Rent other obligations of Tenant under this Lease, and any other charges, interest
and adjustments as may become due hereunder. Landlord’s failure or inability to
relet the Premises or any part thereof shall not reduce or restrict or in any way affect
Landlord’s right to recover from Tenant all such rent and other sums as the same
become due, and, despite such failure or inability to so relet the Premises or any part
thereof. |
| 12.3 |
Other
Remedies. Landlord may pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decisions of the Commonwealth of Massachusetts, in addition to
the foregoing. It is understood and agreed that Landlord’s remedies hereunder are
cumulative, and the exercise of any right or remedy shall not constitute a waiver, merger
or extinguishment of any other right or remedy. |
| 12.4 |
Removal
of Personal Property. In the event of a retaking of possession of the Premises by
Landlord, Tenant shall remove all personal property located thereon and, upon failure to
do so upon demand of Landlord, Landlord may remove and store the same in any place
selected by Landlord, including without limitation a public warehouse, at the expense and
risk of Tenant. If Tenant shall fail to pay the cost of storing any such property after
it has been stored for a period of thirty (30) days of more, Landlord may sell any or all
of such personal property at a public or private sale or auction and shall apply the
proceeds of such sale first to the cost of such sale, secondly to the payment of the
charges for storage, if any, and thirdly to the payment of any other sums of money which
may be due from Tenant to Landlord under the terms of this Lease, and the balance, if
any, to Tenant. Tenant hereby waives all claims for damages that may be caused by Landlord’s
lawfully re-entering and taking possession of the Premises or lawfully removing and
storing the personal property of Tenant as herein provided and will hold Landlord
harmless from loss or damages occasioned by Landlord thereby, and no such lawful re-entry
shall be considered or construed to be a forcible or unlawful entry or detainer. |
13.
Damage and Reconstruction. Should the Premises be damaged during the term
of this Lease, Tenant shall immediately notify Landlord, and the rights and
responsibilities of Landlord and Tenant shall then be as follows:
| 13.1 |
Insured
Damage. In the event the Premises are damaged by fire or other perils covered by
Landlord’s casualty or property insurance, Landlord agrees forthwith to commence
repair of the same to the extent of insurance proceeds available and this Lease shall
remain in full force and effect, except that Tenant shall be entitled to a proportionate
reduction of the Annual Rent and/or the Adjusted Annual Rent (but not other obligations
hereunder) from the date of damage and while such repairs are being made, such
proportionate reduction to be based upon the extent to which the damage and making of
such repairs shall cause undue interference with the business carried on by Tenant in the
Premises. If the damage is due to the fault or neglect of Tenant or Tenant’s
employees, there shall be no abatement of the Annual Rent. |
| 13.2 |
Other
Damage. In the event the Premises are damaged as the result of any cause other than
the perils covered by Landlord’s casualty insurance or for which insurance proceeds
are insufficient fully to cover, then Landlord agrees forthwith to commence repair of the
same, only in the case that the extent of the destruction of the Premises is less than
ten percent (10%) of the then full replacement cost of the Premises. In the event the
destruction of the Premises is to an extent of ten percent (10%) or more of the full
replacement cost of the Premises, then Landlord shall have the option (a) to repair or
restore such damage, this Lease continuing in full force and effect, but the Annual Rent
and/or the Adjusted Annual Rent shall be proportionately reduced as provided above in
Section 13.1; or (b) to give notice to Tenant at any time within sixty (60) days after
such damage, terminating this Lease as of the date specified in the notice, which date
shall be no more than thirty (30) days after the giving of such notice. In the event of
giving such notice, this Lease shall expire and all interest of Tenant in the Premises
shall terminate on the date so specified in such notice and the Annual Rent and/or the
Adjusted Annual Rent shall be fully abated, and all other obligations of Tenant under
this Lease shall be deemed fully performed as of the date of such termination. At Tenant’s
sole option, it may, upon notice to Landlord and in accordance with Article 5 of this
Lease, effect all necessary repairs and reinstate this Lease. Tenant’s obligation to
pay Annual Rent and/or the Adjusted Annual Rent, but not the other obligations hereunder,
during any period of repair shall be abated, so long as such period does not exceed one
hundred eighty (180) days. |
| 13.3 |
Damage
to Tenant’s Property. Landlord shall not be required to repair or make whole any
injury or damage by fire or other cause or peril or to make any repairs or replacements
of any fixtures or other personal property of Tenant. Tenant shall maintain hazard
insurance to cover hazards to its personal property. |
14. Eminent
Domain.
| 14.1 |
Taking.
If fifty percent (50%) or more of the Premises or the improvements thereon shall be taken
or appropriated by any public or quasi-public authority under the power of eminent
domain, Tenant shall have the right at its option within sixty (60) days after said
taking to terminate this Lease upon thirty (30) days’ written notice. |
| 14.2 |
Partial
Taking. If less than fifty (50%) percent of the Premises or the improvements thereon
are taken, or fifty percent (50%) or more of the Premises or the improvements thereon are
taken and Tenant elects not to terminate as herein provided, the Annual Rent thereafter
to be paid shall be equitably reduced. |
| 14.3 |
Award.
In the event of any taking or appropriation whatsoever, Landlord shall be entitled to any
and all awards, payments or settlements which may be given, made or ordered and Tenant
shall have no claim against the condemning authority or Landlord for the value of any
unexpired term of this Lease, and Tenant hereby assigns to Landlord any and all claims to
any award, payments or settlement. Nothing contained herein shall be deemed to give
Landlord any interest in or to require Tenant to assign to Landlord any award made to
Tenant for the taking of personal property or fixtures belonging to Tenant, for the
interruption of or damage to Tenant’s business, or for Tenant’s moving
expenses. |
15.
Signs.
| 15.1 |
Tenant
Signs. Tenant may, at Tenant’s sole expense, place external signs on the
Premises, provided such signs have been approved in advance by Landlord, and provided
such signs do not violate any statute or regulation existing during the term of this
Lease. Tenant shall pay the costs of removal of such signs upon termination of the Lease,
and such signs shall be the property of Tenant. |
| 15.2 |
“For
Lease”Signs. At any time within One Hundred Eighty (180) days prior to the
expiration of this Lease, Landlord may place upon the Premises “for lease” signs. |
16.
Subordination. Tenant agrees that this Lease shall be subordinate to any
mortgage or deed of trust that is now or may hereafter be placed upon the
Premises and to any and all advances to be made thereunder, to the interest
thereon, and all renewals, replacements, and extensions thereof; provided, the
lender secured by and named in such mortgage or deed of trust shall agree in
writing to recognize this Lease of Tenant in the event of foreclosure, if Tenant
is not in default. Tenant agrees to take all actions and to execute and deliver
all certificates, instruments, documents and agreements, including, without
limitation, agreements of subordination, waiver and attornment, necessary or
proper to effect the foregoing.
17.
Tenant’s Statement. Tenant shall at any time and from time to time
upon not less than ten (10) days’ prior written notice from Landlord,
execute, acknowledge, and deliver to Landlord a statement in writing (a)
certifying that this Lease is unmodified and in full force and effect (or, if
modified, stating the nature of such modification and certifying that this
Lease, as so modified, is in full force and effect) and the date to which the
rental and other charges are paid in advance, if any; (b) acknowledging that
there are not, to Tenant’s knowledge, any uncured defaults on the part of
Landlord hereunder, or specifying such defaults if any are claimed; and (c)
setting forth the date of commencement of Annual Rent and expiration of the Term
hereof. Any such statement may be relied upon by any prospective purchaser or
encumbrance of the Premises. Failure to provide such statement within ten (10)
days shall be deemed confirmation of the statement of Landlord regarding each of
the foregoing items.
18.
Authority of Parties. Each of Tenant and Landlord represents and warrants
that it is a duly organized and in good standing and that the execution,
delivery and performance of this Lease has been duly authorized by all requisite
corporate action. Each individual executing this Lease on behalf of Tenant and
Landlord represents and warrants that he or she is duly authorized to execute,
deliver and perform this Lease for, in the name of and on behalf of the
respective party, in accordance with the bylaws of such organization, and that
this Lease is legally binding upon and enforceable against such entity in
accordance with its terms. Upon request, each of Tenant and Landlord agrees to
provide a Certificate of Officer verifying the authority and position of each
signatory.
19.
General Provisions. Landlord and Tenant agree to the following general
provisions:
| 19.1 |
Waiver.
A waiver by Landlord of any term, covenant, or condition herein contained shall not be
deemed to be a future waiver of such term, covenant, or condition, nor the waiver of any
other term, covenant or condition herein contained. The subsequent acceptance of any
payment hereunder by Landlord shall not be deemed to be a waiver of any preceding default
by Tenant of any term, covenant, or condition of this Lease, other than the failure of
Tenant to pay a particular rental so accepted, regardless of Landlord’s knowledge of
such preceding default at the time of the acceptance of any such rent. |
| 19.2 |
Time.
Time is of the essence of this Lease and each and all its provisions in which performance
is a factor. |
| 19.3 |
Headings.
The heading and section titles of this Lease are not a part of this Lease and shall have
no effect upon the construction or interpretation of any part hereof. |
| 19.4 |
Successors
and Assigns.The covenants and conditions herein contained subject to the provisions
as to assignment, apply to and bind the heirs, successors, executors, administrators, and
assigns of the parties hereto. |
| 19.5 |
Quiet
Possession. Upon Tenant paying all of the obligations hereunder and performing all of
the covenants, conditions, and provisions on Tenant’s part to be observed and
performed hereunder, Tenant shall have quiet possession of the Premises for the entire
term hereof, subject to all the provisions of this Lease. The Premises are leased subject
to any and all existing encumbrances, conditions, rights, covenants, easements,
restrictions, rights-of-way, and any matters of record, applicable zoning and building
laws, and such matters as may be disclosed by inspection or survey. |
| 19.6 |
Prior
Agreements. This Lease contains all of the agreements of the parties hereto with
respect to any matter covered or mentioned in this Lease, and no prior agreements or
understandings pertaining to any such matters shall be effective or binding upon any
party until fully executed by both parties hereto. |
| 19.7 |
Partial
Invalidity. Any provisions of this Lease which shall prove to be invalid, void, or
illegal shall in no way affect, impair, or invalidate any other provision hereof, and
such other provision shall remain in full force and effect. |
| 19.8 |
Cumulative
Remedies. No remedy or election hereunder shall be deemed exclusive, but shall
whenever possible be cumulative with all other remedies at law or in equity. |
| 19.9 |
Governing
Law. This Lease shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts, excluding its conflict of laws. |
| 19.10 |
Real
Estate Commission. There are no brokers eligible to receive commissions. |
| 19.11 |
Notice.
Any notices or other communications required or permitted hereunder or otherwise in
connection herewith shall be in writing and shall be deemed to have been duly given when
delivered in person or transmitted by facsimile transmission or on receipt after dispatch
by express, registered or certified mail, postage prepaid, addressed, as follows: |
If
to Landlord:
Sterling Realty Trust
00 Xxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxx, Trustee
If
to Tenant:
Mestek, Inc.
000 Xxxxx Xxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention:
Xxxxxxx X. Xxxx, Xx. Vice President-Finance
| 19.12 |
Survival.
All agreements, covenants, warranties, representations and indemnification contained
herein or made in writing pursuant to the terms of this Lease by or on behalf of Tenant
shall be deemed material and shall survive the expiration or sooner termination of this
Lease. |
IN
WITNESS WHEREOF, the parties have executed this Lease Agreement as of the date first set
forth above.
|
|
|
LANDLORD:
STERLING REALTY TRUST |
|
|
By: Xxxx X. Xxxx |
|
Its: Trustee |
|
|
|
TENANT:
MESTEK, INC. |
|
|
By: Xxxxxxx X. Xxxx |
|
Its: Sr. Vice President-Finance |
EXHIBIT A
DESCRIPTION OF PREMISES
This is Exhibit A to that certain
Lease Agreement made as of the 1st day of May, 2004, by and between Sterling
Realty Trust, a trust made under a Declaration of Trust dated November 24, 1950, and
recorded in Hampden County Registry of Deeds as Document No. 26882, in Book 2088, Page 123
(the “Landlord”), and Mestek, Inc., and its successors and assigns (the
“Tenant”) a Pennsylvania corporation, with offices at 000 Xxxxx Xxx Xxxxxx,
Xxxxxxxxx, XX 00000.
1.
See attached.
EXHIBIT B
LEGAL DESCRIPTION OF
PROPERTY
This is Exhibit B to that certain
Lease Agreement made as of the 1st day of May, 2004, by and between Sterling
Realty Trust, a trust made under a Declaration of Trust dated November 24, 1950, and
recorded in Hampden County Registry of Deeds as Document No. 26882, in Book 2088, Page 123
(the “Landlord”), and Mestek, Inc., and its successors and assigns (the
“Tenant”) a Pennsylvania corporation, with offices at 000 Xxxxx Xxx Xxxxxx,
Xxxxxxxxx, XX 00000.
1.
The Premises leased by Tenant from Landlord is situated on the following real
property:
| |
Commencing
at a stone monument on the Easterly side of North Elm Street; thence running Easterly at
right angles to said street and on the Northerly line of Westminster Street sixteen (16)
rods to a stone monument; thence running Northerly in a line parallel with said Xxxxx Xxx
Xxxxxx sixteen (16) rods to a stone monument; thence running Westerly on the Southerly
line of Harvard Street sixteen (16) rods to a stone monument on the East side of said
Xxxxx Xxx Xxxxxx; thence running Southerly along the East line of said Xxxxx Xxx Xxxxxx
sixteen (16) rods to the point of beginning. |
EXHIBIT C
LEGAL DESCRIPTION OF
ADJACENT PARKING AREA
This is Exhibit C to that certain
Lease Agreement made as of the 1st day of May, 2004, by and between Sterling
Realty Trust, a trust made under a Declaration of Trust dated November 24, 1950, and
recorded in Hampden County Registry of Deeds as Document No. 26882, in Book 2088, Page 123
(the “Landlord”), and Mestek, Inc., and its successors and assigns (the
“Tenant”) a Pennsylvania corporation, with offices at 000 Xxxxx Xxx Xxxxxx,
Xxxxxxxxx, XX 00000.
1.
The parking area included with the lease of the Premises is situated on the
following real property:
| |
Beginning
at a stone monument at the intersection of the southerly line of Xxxxxxxxxxx Xxxxxx and
the easterly line of North Elm street, thence running easterly on said southerly line of
Westminster street two hundred fourteen and fifty-four one-hundredths (214.54) feet to a
stone monument; thence southerly in a straight line one hundred (100) feet to an iron pin;
thence westerly on other land of grantor about two hundred fourteen and fifty-four
one-hundredths (214.54) feet to the easterly line of said North Elm street to an iron pin;
thence northerly on said North Elm street one hundred (100) feet to the point of
beginning. |
