EXHIBIT 10.19
ASSIGNMENT OF LEASE
ASSIGNMENT made this 25th day of Septmeber, 1997 by and among XXXXXXX
X. XXXX and JDA, INC., a Pennsylvania corporation (collectively "Landlord"),
XXXXX CO., a Pennsylvania corporation ("Tenant") and NEW XXXXX CO., INC., a
Delaware corporation ("New Xxxxx").
BACKGROUND
Landlord and Tenant are parties to a lease dated January 10, 1980 as
amended by Amendments to Lease dated August 1, 1988, May 21, 1991 and extended
through July 31, 1999 by Addendum to Lease dated June 1, 1991 (the "Lease")
covering the demised premises located in Xxxxxxx Township, Allegheny County,
Pennsylvania as defined in the Lease (the "Premises"). Pursuant to the sale of
certain of its assets to New Xxxxx, Tenant desires to assign all of its rights
and obligations under the Lease: to New Xxxxx and New Xxxxx desires to accept
such assignment and Landlord has consented to such assignment.
NOW THEREFORE in consideration of the foregoing premises and intending
to be legally bound hereby, Landlord, Tenant and New Xxxxx hereby represent and
agree as follows:
1. Representations of Landlord and Tenant. Landlord and Tenant hereby
represent, with the intent that New Xxxxx should rely on this representation in
connection with this Assignment, the following:
(a) The Lease is in full force and effect and has not been
amended or supplemented. The Lease represents the entire agreement between
Landlord and Tenant with respect to the Premises.
(b) No "default" or "event of default" under the Iease has
occurred or is continuing and no event which with notice or lapse of time or
both would be a "default" or "event of default" under the Lease has occurred.
(c) All rent and additional rent under the Lease has been paid
through September 30, 1997.
(d) The interest in and to the leasehold estate retained by
Xxxxxxx X. Roughs expires on July 31, 1999.
Landlord and Tenant agree that they shall be estopped from any
future assertion of facts contrary to the foregoing representations.
2. Assignment.
(a) Tenant hereby assigns to New Xxxxx all of the right, title
and interest of Tenant in and to the Lease as of the Effective Date (as
hereinafter defined).
(b) New Xxxxx hereby assumes and agrees, as of the Effective
Date, to make all payments and to keep all covenants and agreements of Tenant
under the Lease with the same force and effect as if New Xxxxx had executed the
Lease originally as tenant therein.
(c) Landlord hereby consents to the assignment of the Lease
contained herein. Furthermore, pursuant to Article 18 of the Lease, Tenant shall
remain liable to Landlord under all terms and conditions of the Lease.
(d) Tenant hereby agrees to indemnify and hold New Xxxxx harmless
from and against any and all losses or damages (including without limitation,
the cost of defending the same) relating to a default under the Lease or
otherwise with respect to the Lease accruing prior to the Effective Date of this
Assignment.
(e) New Xxxxx hereby agrees to indemnify and hold Tenant harmless
from and against any and all losses or damages (including without limitation,
the cost of defending the same) relating to a default under the Lease or
otherwise with respect to the Lease accruing from and after the Effective Date
of this Assignment.
3. Amendments to Lease. Landlord and New Xxxxx hereby agree
that on the Effective Date, the Lease shall be amended and supplemented as
follows (capitalized terms used in the following subparagraphs (a) through (d)
but not defined herein, shall have the meanings given to them in the Lease):
(a) The term of the Lease shall be extended to July 31, 2002.
The period from August 1, 1999 through July 31, 2002 is hereinafter referred to
as the "Extension Tenn."
(b) Prior to August 1, 1999, Annual Net Basic Rental of $103,200
and additional rent in the amount of $2,509.00 per month shall be paid by Tenant
as provided in the Lease. During the Extension Term, in lieu of the foregoing
payments, Tenant shall pay Annual Net Basic Rental as set forth in subsection
(c) below:
(c) Annual Net Basic Rental during the first year of the
Extension Term (commencing August 1, 1999) shall be equal to the lesser of (a)
$133,308, increased by the percentage increase in the CPI (as hereinafter
defined) from June 1998 to June 1999 or (b) the Fair Market Rental Value of the
Premises (as hereinafter defined). The Annual Net Basic Rental during the second
and third years of the Extension Term shall be the Annual Net Basic Rental for
the prior year increased by the percentage increase in the CPI. Notwithstanding
the foregoing, the percentage increase in any given year shall not exceed four
(4%) percent. Such Annual Net Basic
Rental shall be payable in monthly installments, each of which installment shall
be an amount equal to one-twelfth (1/12th) of the applicable Annual Net Basic
Rental, and shall be paid in advance on or before the tenth business day of each
month during the Extension Term, without demand, to the Lessor at JDA, Inc., 000
Xx. Xxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000 or such other place as the
Landlord may designate in writing from time to time.
(d) For the purpose of the foregoing:
(i) "Fair Market Rental Value of the Premises" shall be
the annual rent agreed to by Landlord and Tenant or, if they do not reach
agreement, the annual rent equal to the fair market rental value of the
Premises, taking into consideration all of the other terms and conditions of the
Lease, as determined by an MAI appraiser selected by Landlord and Tenant. In the
event Landlord and Tenant cannot agree on an MAI appraiser, each shall select
one MAI appraiser and that appraiser shall appoint a third MAI appraiser whose
determination of Fair Market Rental Value shall control. The cost of any
appraisal shall be divided equally between Landlord and Tenant. Landlord and
Tenant shall negotiate in good faith, beginning no later than April 1, 1999 in
order to determine annual rental value of the Premises. If they have not reached
agreement on annual rent prior to May 1, 1999, they shall attempt to agree on an
MAI appraiser by May 15, 1999. If they have not agreed on such appraiser by May
15, 1999, they shall each appoint one MAI appraiser by May 30, 1999. Such
appraiser shall select the third MAI appraiser by June 15, 1999. The single MAI
appraisers appointed by the MAI appraisers appointed by the MAI appraisers
appointed by each of the parties shall have thirty (30) days to determine Fair
Market Rental Value of the Premises.
(ii) "CPI" shall mean the Consumer Price Index for
Urban Wage Earners and Clerical Workers in the Pittsburgh area published by the
Bureau of Labor Statistics of the U.S. Department of Labor (1982-84 equals 100)
(All Items). In the event that the CP1 ceases to use 1982-84 average of 100 as
the basis of calculation, or if a substantial change is made in the terms or
number of items contained in the CP1, then the CPL shall be adjusted to the
figure that would have been arrived at had the change in the a manner of
computing the CPI in effect on the date of this amendment to lease not been
altered. In the event such CPI (or a successor or, substitute index) is not
available, a reliable governmental or non-partisan publication evaluating the
information thereto fore used in determining the CPI shall be used. In the event
no CPI shall be published for the month in question, the CPI published on the
date nearest thereto shall be used.
(iii) "Percentage Increase" shall be calculated as
follows: first calculate the sum which is the difference between the CPI for
June of the then current year and June of the immediately preceding year.
Second, divide that difference by the CPI for June of the immediately preceding
year. Third, multiply the quotient just derived by 100 to obtain the "percentage
increase." (For an example of the calculation see Exhibit A") on such appraiser
by May 15, 1999, they shall each appoint one MAI appraiser by May 30, 1999. Such
appraiser shall select the third MAI appraiser by June 15, 1999. The single MAI
appraiser appointed by the
parties or the single MAI appraiser appointed by the MAI appraisers appointed by
each of the parties shall have thirty (30) days to determine Fair Market Rental
Value of the Premises.
(ii) "CPI" shall mean the Consumer Price Index for Urban
Wage Earners and Clerical Workers in the Pittsburgh area published by the Bureau
of Labor Statistics of the U.S. Department of Labor (1982-84 equals 100) (All
Items). In the event that the CP1 ceases to use 1982-84 average of 100 as the
basis of calculation, or if a substantial change is made in the terms or number
of items contained in the CPI, then the CPI shall be adjusted to the figure that
would have been arrived at had the change in the a manner of computing the CPI
in effect on the date of this amendment to lease not been altered. In the event
such CPI (or a successor or, substitute index) is not available, a reliable
governmental or non-partisan publication evaluating the information thereto fore
used in determining the CPI shall be used. In the event no CPI shall be
published for the month in question, the CPI published on the date nearest
thereto shall be used.
(iii) "Percentage Increase" shall be calculated as
follows: first calculate the sum which is the difference between the CPI for
June of the then current year and June of the immediately preceding year.
Second, divide that difference by the CPI for June of the immediately preceding
year. Third, multiply the quotient just derived by 100 to obtain the "percentage
increase." (For an example of the calculation see Exhibit "A").
4. Additional Covenants.
(a) Landlord agrees to execute such waiver of liens as may be
requested from time to time by Tenant's bank or other financial institution.
(b) Landlord, Tenant and New Xxxxx hereby represent and warrant
to each other, that they have dealt with no broker in connection with this
Assignment and there are no brokerage commissions or finder's fees payable in
connection therewith. Each party hereby agrees to hold the other party harmless
from and against any and all damage (including without limitation, the cost of
defending the same) arising from any claim by a broker claiming to have dealt
with such party in connection with this Assignment.
(c) This Assignment shall be binding and inure to the benefit of
the parties hereto and their respective successors and assigns.
(d) This Assignment shall be effective beginning July 1, 1997
(the "Effective Date").
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
as of the day and year first above written.
/Xxxxxxx X. Roughs/
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Xxxxxxx X. Roughs
JDA, INC.
By: /Xxxxxx X. Xxxxxxx/
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Xxxxxx X. Xxxxxxx
President
XXXXX CO.
By: /AndrewM.Xxxxxxx/
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Xxxxxx X. Xxxxxxx
President
NEW XXXXX CO., INC.
By: /Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
Chairman
