LEASE
Exhibit 10.100
BETWEEN XXXX FAMILY TRUST
LESSOR
AND
THE KINETIC CO., INC. & PRECISION INDUSTRIES, INC. LESSEE
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THIS LEASE AGREEMENT (this "Lease") is dated as of the 28th day of June, 2022 (the “Effective date”) by and between The Kinetic Co., Inc. a Wisconsin corporation & Precision Industries, Inc., d/b/a Precision Xxxxxxxx Steel Company, a Pennsylvania corporation (“Lessee”), and Xxxx Family Trust, a California Trust ("Lessor").
WITNESSETH:
WHEREAS, Lessee desires to lease the entire property, including the building(s) thereon, consisting of approximately 74,295 square feet, located at 0000 X Xxxxxx Xxxx, Xxxxxxxxx, XX 00000 (the “Demised Premises”) and Lessor agrees to lease the Demised Premises to Lessee.
NOW, THEREFORE, in consideration of the Demised Premises, mutual covenants contained in this Lease, and each act to be performed hereunder by the parties, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Lessor and Lessee covenant and agree as follows:
ARTICLE I. DEMISED PREMISES
Section 1.1 Lessor leases to Lessee, and Lessee leases and accepts from Lessor, the Demised Premises (designated as Milwaukee County tax parcels 710-9996-000), which Demised Premises include the structure, buildings, and improvements located thereon (the structures, buildings, and improvements on the Demised Premises are hereinafter called the “Improvements”).
Section 1.2 Acceptance of Demised Premises In As-Is Condition. LESSEE ACKNOWLEDGES THAT IT IS FAMILIAR WITH THE DEMISED PREMISES AND THE LEGALLY PERMISSIBLE USES THEREON. ACCORDINGLY, LESSEE ACCEPTS POSSESSION OF THE DEMISED PREMISES IN ITS "AS IS" CONDITION AS OF THE LEASE COMMENCEMENT DATE (as defined in Section 2.1). LESSOR MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO THE DEMISED PREMISES, EITHER AS TO ITS FITNESS FOR USE, ITS DESIGN OR CONDITION, OR ANY PARTICULAR USE OR PURPOSE TO WHICH THE DEMISED PREMISES MAY BE PUT, OR OTHERWISE, OR THE EXISTENCE OF ANY DEFECTS, LATENT OR PATENT, IT BEING AGREED THAT ALL SUCH RISKS ARE BORNE BY LESSEE.
ARTICLE II. TERM AND RENT
Section 2.1 Term. Lessee’s obligation to pay rent and occupy the Demised Premises in accordance with this Lease shall be for a term of twenty (20) years (the “Term”), commencing on the Effective Date (“Lease Commencement Date”) and ending on the last day of the month twenty (20) years following the Commencement Date, unless terminated at an earlier date for any reason set forth in this Lease.
Section 2.2 Renewal Periods. Lessee shall have and is hereby granted two (2) successive separate options to renew and extend the Term of this Lease from the date or dates upon which it would otherwise expire, for each separate successive renewal period, which shall
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be for a period of five (5) years each (each such period being called a “Renewal Period”). Each such Renewal Period shall follow consecutively upon the expiration of the initial term as or upon the expiration of the prior Renewal Period, as the case may be, and each such Renewal Period shall, upon commencement thereof, be deemed included in references to “the term of this Lease” and “the full term of this Lease”. Lessee’s option with respect to each Renewal Period shall be exercised by Lessee by giving written notice to Lessor of Lessee’s exercise of same not later than one hundred and eighty (180) days prior to the expiration date of the initial term or the then current Renewal Period, as the case may be. No option shall be deemed validly exercised unless the option affecting the preceding Renewal Period shall have been validly exercised. If Lessee elects to exercise any one or more of such options, the full term of this Lease shall be automatically extended for the Renewal Period or Periods covered by the option or options so exercised without execution of an extension or renewal lease. Each Renewal Period shall be on all of the same terms and conditions as are in effect hereunder immediately preceding the commencement date of such Renewal Period, except that the Basic Annual Rent during the Renewal Periods shall be fair market value. Lessee shall have no further right or option to renew after expiration of the final Renewal Period.
Section 2.3 Holdover. If Lessee (or anyone claiming through Lessee) does not immediately surrender the Demised Premises or any portion thereof upon the expiration or earlier termination of the Term, then the Basic Rent (as hereinafter defined) payable by Lessee hereunder shall be increased to equal one hundred fifty percent (150%) of the Basic Rent in addition to all other sums that would have been payable pursuant to the provisions of this Lease if the Term had continued during such holdover period. During such holding over period, Lessee’s tenancy shall be from month to month in accordance with all the terms and conditions of this Lease.
Section 2.4 Statement of Commencement Date. The parties hereto shall, at the request of either party after the Lease Commencement Date has occurred, execute an instrument stating the Lease Commencement Date.
Section 2.5 Memorandum of Lease. As soon as practicable after execution of this Lease, upon request by either party, Lessor and Lessee shall execute, in recordable form, a Memorandum of Lease in the form annexed to this Lease as Exhibit A, and Lessee shall have the right to record the Memorandum of Lease in the appropriate recording office at Lessee’s cost.
Section 2.6 Rent. Commencing on the Lease Commencement Date, and during the initial lease year of the Term the annual rent payable by Lessee shall be Six Hundred Thousand dollars ($600,000), payable in monthly installments of Fifty Thousand Dollars ($50,000) per month (the “Basic Rent”). Thereafter, on each anniversary of the Lease Commencement Date, including during each Renewal Period, Basic Rent shall increase by two percent (2.0%). If this Lease shall commence on a date other than the first day of the month, then on the Lease Commencement Date the Lessee shall pay that portion of the Basic Rent which represent the amount due for the balance of the month together with the first full monthly payment of Basic Rent. Thereafter, all payments of Basic Rent shall be due and payable on the first (1st) day of each month during the Term.
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Section 2.7 Payments. Rent shall be made payable to Lessor and mailed to the address (if by check) or delivered by wire or ACH transfer, as directed in writing by Lessor. Lessor may, from time to time, change the method or address for delivery of rent in a written notice delivered to Lessee at least ten (10) days prior to the effective date of such change.
Section 2.8 Late Payment. Notwithstanding anything to the contrary contained herein, in the event that payment of rent is not received by Lessor within five (5) days of the due date, then Lessee shall pay, as additional rent, a sum equal to five (5%) percent of the unpaid rent as the late payment. In addition, Lessee shall be obligated to pay five percent (5%) of the unpaid rent from the date that such rent is due until paid in full.
Section 2.9 Net Lease. This Lease shall be an absolute net lease, so that this Lease shall yield all Basic Rent payable hereunder as an absolutely net return to Lessor. Accordingly, with the exception of Lessor's Income Taxes and as otherwise expressly set forth in this Lease, Lessee shall pay all taxes, insurance, assessments, and other costs, expenses and obligations of every kind and nature whatsoever relating to the ownership, including a management fee, with annual increases matching the lease term, and operation of the Demised Premises, such as taxes, assessments, insurance premiums and maintenance, repair and compliance costs, which accrue with respect to the Demised Premises prior to, on and after the Lease Commencement Date and prior to the expiration of the Term. Lessee's obligation to pay all amounts described in this Section 2.9 shall survive the expiration or earlier termination of this Lease. Lessee will pay property taxes directly to taxing authority.
Section 2.10 Impositions.
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Lessee's use thereof. Impositions shall not include any federal, state, or local tax imposed on Lessor that is based upon Lessor's income or profits ("Lessor’s Income Taxes").
Section 2.11 Security Deposit. As security for performance of its obligations hereunder, upon execution of this Lease, Lessee shall pay to Lessor on even date hereof a security deposit in the amount of Fifty Thousand Dollars ($50,000.00)
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(the “Security Deposit”). Upon the occurrence of any Event of Default (as hereinafter defined) by Lessee, Lessor may from time to time and without prejudice to any other remedy, use the Security Deposit to the extent necessary to make good any arrears of Basic Rent or any other amount payable hereunder, or any other damage, injury, expense or liability caused to the Lessor by such Event of Default. The remaining balance of such Security Deposit shall be returned by Lessor to Lessee promptly (within thirty (30) days) after termination of this Lease; provided, however, Lessor shall not be obligated to return the remaining balance of such Security Deposit until all payments due from Lessee to Lessor pursuant to this Lease shall have been made in full. The Security Deposit shall not be considered an advance payment of rent or measure of the Lessor’s damages in case of default by Lessee. Lessor may commingle such Security Deposit with other monies of the Lessor. Lessee shall receive no interest on such Security Deposit. Lessee shall be obligated to deposit with Lessor the amount necessary to restore the Security Deposit to its original amount within five (5) business days of Lessor’s notice to Lessee of any depletion of the Security Deposit. In the event of the sale or transfer of Lessor’s interest in the Premises, Lessor shall have the right to transfer the Security Deposit to the purchaser or transferee and upon such transfer Lessee shall look only to the new Lessor for the return of the Security Deposit and the Lessor shall thereupon be released from all liability to Lessee for the return of or accounting for such Security Deposit.
ARTICLE III. USE OF IMPROVEMENTS, ALTERATIONS, BUSINESS CONDUCT.
Section 3.1 Use. Lessee shall use and occupy the Demised Premises for no purpose except (a) purposes related to those for which the Demised Premises is being used as of the Effective Date and/or (b) other lawful purposes consistent with the industrial nature of the Demised Premises. Lessee shall not use or occupy the Demised Premises for any unlawful purpose, or in any manner that will violate the certificate of occupancy for the Demised Premises. Lessee shall, at Lessee's expense, comply with all present and future laws (including, without limitation, the Americans with Disabilities Act), ordinances (including without limitation, zoning ordinances and land use requirements), regulations, orders, recommendations, decisions, and decrees now or hereafter promulgated (including, without limitation, those made by any public or private agency), as any of the same may be amended from time to time (collectively, "Laws", and individually, ''Law") applicable to Lessee, the use, occupancy and condition of the Demised Premises and the business being conducted thereon, and all machinery, equipment, furnishings, fixtures and improvements on or used in connection with the Demised Premises. If any Law requires any occupancy or use permit or license for the Demised Premises or the operation of the business conducted therein, then Lessee shall obtain and keep current all such permits or licenses at Lessee's expense. Lessee shall deliver to Lessor, promptly upon request, copies of all such licenses and permits. If any Law requires any modification to the Demised Premises, Lessee shall perform such alterations, at its sole cost and expense, in accordance with the applicable terms and conditions of Section 3.2 below. Use of the Demised Premises is subject to all covenants, conditions, easements and restrictions of record, and Lessee shall comply with the same (but not with any of Lessor's obligations for and relating to borrowed money except as provided in this Lease or agreed by Lessee with Lessor’s lender). Lessee shall conduct its business in the Demised Premises in a reputable manner. Lessee shall have the right to erect and maintain directional or Lessee identification signs (but no third party signage such as, by
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way of example and not limitation, advertisements, political advocacy, or position statements) in or on the Demised Premises at such place or places as Lessee may choose, subject to all applicable Laws and ordinances.
Section 3.2 Alterations by Lessee. Except as otherwise provided in this Lease, any alterations and additions to the Demised Premises that Lessee may deem desirable during the Term may be made by Lessee, at Lessee’s sole cost and expense, but Lessor’s prior written consent (not to be unreasonably withheld, conditioned, or delayed) shall be required for any exterior alterations in excess of $200,000 at any one time, reductions or increase in size of the Demised Premises. Lessor shall promptly sign and execute such documents or otherwise evidence its approval, consent or grant of authority, as required by any public authorities having jurisdiction, to facilitate issuance to Lessee of necessary licenses or to permit Lessee to make or perform any permissible alteration or addition.
Section 3.3 Conduct of Business. Lessee shall not cause injury or waste to the Demised Premises, reasonable wear and tear excepted. Lessee shall keep the Demised Premises clean and free from rubbish, trash and garbage, and, at Lessee own expense, arrange for removal of same. Lessee shall store all such rubbish, trash and garbage within the Demised Premises.
Section 3.4 Hazardous Materials.
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would adversely affect or impair the value or marketability of the Demised Premises. "Environmental Law" means any present and future Laws, and other requirements or guidelines of governmental authorities applicable to the Demised Premises and relating to the environment and environmental conditions, industrial hygiene, public health or safety, or to any Hazardous Material (including, without limitation, CERCLA 42 U.S.C. § 9601 et seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C, § 6901 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et seq., the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., the Clean Air Act, 33 U,S.C. § 7401 et seq., the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq,, the Safe Drinking Water Act, 42 U.S,C. § 300f et seq., the Emergency Planning and Community Right-To-Know Act, 42 U,S.C. § 1101 et seq., the Occupational Safety and Health Act, 29 U.S,C. § 651 et seq., and any so-called "Super Fund" or "Super Lien" law, any Law requiring the filing of reports and notices relating to Hazardous Materials, environmental laws administered by the Environmental Protection Agency, and any similar state and local Laws).
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for (a) purposes related to those for which the Premises is being used as of the Effective Date and/or (b) other lawful purposes consistent with the industrial nature of the Premises.
(ii) to cure the same, at Lessee's sole cost and expense, in which event Lessee shall pay the reasonable costs thereof to Lessor as additional rent. Lessor shall use commercially reasonable efforts to ensure that any audit conducted pursuant to this Section 3.4(c) does not unreasonably interfere with Lessee's operations at the Demised Premises.
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Hazardous Materials at the Demised Premises.
ARTICLE IV. MAINTENANCE.
Section 4.1 Maintenance of Demised Premises. Except with respect to damage caused by the negligence or other acts of Lessor and/or Lessor’s agents, vendors, contractors, members, officers, directors, shareholders and employees (collectively, “Lessor’s Agents”) Lessee, at Lessee’s sole cost and expense, shall keep the Demised Premises, including all portions of the building, landscaping and equipment, in good condition and repair throughout the Term, reasonable wear and tear and the effects of time excepted; provided, however, that Lessee’s liability for any item of maintenance, repair or replacement shall be limited as set forth in Article VIII of this Lease. Lessor, at Lessor’s sole cost and expense, shall be responsible to repair or remedy damage caused by the negligence or other acts of Lessor and Lessor’s agents, contractors, vendors, invitees, and employees. In the event Lessor fails to remedy such damage as required above within twenty (20) days’ after receipt of notice form Lessee or in the event of an emergency, Lessee may make such repairs and Lessor will reimburse Lessee for such costs within thirty (30) days’ after receipt of the xxxx and if Lessor fails to reimburse Lessee, Lessee within such thirty (30) days, Lessee may deduct the cost from the next due Basic Rent payment. Notwithstanding anything in this Lease to the contrary, Lessor shall have the right, but not the obligation, to take such actions as are reasonably necessary to prevent or mitigate damages or injury to persons or property arising out of the need for Lessee to make repairs or maintain the Demised Premises but only where (a) an emergency exists, or (b) any delay or further delay in taking action would likely result in irreparable harm and/or cause, increase or compound damages or injury to persons or property. Lessor shall promptly give notice to the Lessee of its exercise of the foregoing right. Lessee shall reimburse Lessor the actual costs and expenses incurred in taking such actions within thirty (30) days after receipt of a statement therefore. Any such amounts due will be deemed additional rent. Lessee further agrees to replace (with systems of equal usable years remaining from lease commencement) all systems, after the termination of this Lease, including the roof, HVAC, parking lot and exterior of the building.
Lessee also agrees, within twenty-four (24) months after the Lease Commencement Date, to make necessary repairs using contractors selected by Lessee presented to Lessee as “Immediate Repairs & Deferred Maintenance Cost Opinion” on April 13, 2020.
ARTICLE V. LAWS AND GOVERNMENTAL REGULATIONS.
Section 5.1 Compliance with Laws. Lessee shall promptly comply with all laws and ordinance, and all orders, rules, regulations, and requirements of federal, state, and municipal governments and appropriate departments, commissions, boards, and officers of these governments (“Legal Requirements”) applicable to the Demised Premises and the business conducted by Lessee thereon throughout the term of this Lease at the Demised Premises, and without cost to Lessor. Lessee shall promptly comply with these Legal Requirements whether they are foreseen or unforeseen, or ordinary or extraordinary. Lessor shall promptly comply with
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any Legal Requirements affecting any common areas or any portion of the Demised Premises under Lessor’s control, if any.
ARTICLE VI. LIENS AND ENCUMBRANCES.
Section 6.1 Liens. Lessee shall not create, permit, or suffer any mechanic’s or other lien or encumbrance on or affecting the Demised Premises or the leasehold interest of Lessor or the fee estate or reversion of the Lessor except as specifically permitted in this Lease.
Section 6.2 Construction Liens. Lessee shall not permit the creation of any lien against the Demised Premises on account of labor or materials furnished in connection with any construction, maintenance, repairs, or alterations Lessee shall undertake. If any such lien is filed against the Demised Premises, Lessee, as the party contracting for such work, shall cause such lien to be released within sixty (60) days after actual notice of the filing thereof or shall furnish to Lessor a bond or other security reasonably satisfactory to Lessor, conditioned to indemnify Lessor against the foreclosure of such lien. Lessee shall have the right, after notice to Lessor, to contest in good faith and with all due diligence any such lien and shall not be required to pay any claim secured by such lien; provided that (a) such lien would not impair the rights or be satisfied out of the interest of Lessor in the Demised Premises by reason of such delay, and (b) Lessee will, at its expense, defend Lessor pay all cost reasonably incurred by the other relating to the contest if Lessor is joined in any suit pertaining thereto or if any such lien is placed upon the Lessor’s interest in the Demised Premises.
Section 6.3 No Lessor Liability. Lessor shall not be liable for any labor, services, or materials furnished or to be furnished to Lessee or to any sublessee in connection with any work performed on or at the Demised Premises, and no mechanic's lien or other lien or encumbrance for any labor, services or materials shall attach to or affect the Lessor’s leasehold interest or the Lessor’s fee estate or reversion in the Demised Premises.
Section 6.4 Lessee’s Furniture, Fixtures and Equipment. Any and all movable or removable fixtures, equipment and personally purchased by, belonging to or leased from third parties by Lessee and installed on the Demised Premises (whether or not affixed), including, without limitation, Lessee lamps, decor items, fans, office and business equipment, software, signs and other personal property are hereinafter referred to as Lessee’s “Furniture, Fixtures and Equipment.” Lessee shall own all Lessee’s Furniture, Fixtures and Equipment to the exclusion of Lessor. Lessee shall have the right to remove all of Lessee’s Furniture, Fixtures and Equipment from the Demised Premises. Lessee’s Furniture, Fixtures and Equipment not so removed by the termination of this Lease within ten (10) days following the termination hereof shall be deemed abandoned by Lessee and the property of Lessor.
Section 6.5 Lessee’s Equipment Financing; Subordination of Lessor’s Lien. Lessee may, from time to time, enter into equipment leases covering Lessee’s Furniture, Fixtures and Equipment or secure financing or general credit lines and grant the lessors or lenders as security therefore a security interest in Lessee’s Furniture, Fixtures and Equipment. Provided Lessee notifies Lessor in writing of the name and address off any such lessor or lender, Lessor agrees that it will grant a lender the same rights to notice and cure with respect to any default of Lessee
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as are given to Lessee hereunder. Any Lessor’s lien covering Lessee’s Furniture, Fixtures and Equipment shall be and hereby is made subordinate to the rights of any and all of Lessee’s lender(s), including, without limitation, any equipment lease or security interest and Lessor shall, within ten (10) days of a request by Lessee, execute and deliver to Lessee any documents that may reasonably be required in order to effect such subordination.
ARTICLE VII. INSURANCE AND INDEMNITY.
Section 7.1 Casualty Insurance. At all times during the Term of this Lease, Lessee shall maintain, at its sole cost and expense, insurance covering the Demised Premises and the Improvements, and including, without limitation, all Improvements now located on the Demised Premises or that may be erected on the Demised Premises, against loss or damage by fire, vandalism, malicious mischief, windstorm, hail, smoke, explosion, riot, civil commotion, vehicles, aircraft, flood or earthquake (if required due to the location of the Demised Premises), together with such other insurance as Lessor may reasonably require from time to time. This insurance shall be carried by insurance companies authorized to transact business in the Commonwealth of Pennsylvania and, selected by Lessee. In addition, the following conditions shall be met:
Section 7.2 Liability Insurance. At all times during the term of this Lease, Lessee shall maintain, at its sole cost and expense, comprehensive broad-form general public liability
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insurance against claims and liability for personal injury, death, and property damage in an amount not less than $2,000,000.00. The insurance shall be carried by insurance companies authorized to transact business in the Commonwealth of Pennsylvania, selected by Lessee. In addition, the following conditions shall be met:
Section 7.3 Certificate of Insurance. Lessee shall furnish Lessor with certificates of all insurance required by this Article VII. Lessee agrees that if Lessee does not keep this insurance in full force and effect, Lessor may notify Lessee of this failure, and if Lessee does not deliver to Lessor certificates showing all such insurance to be in full force and effect with no gap in coverage, within ten (10) days after this notice, Lessor may, at its option, take out and/or pay the premiums on the insurance needed to fulfill Lessee’s obligations under the provisions of this Article VII. On demand from Lessor, Lessee shall reimburse Lessor the full amount of any insurance premiums paid by Lessor, with interest equal to the prime rate charged by Bank of America, plus three (3) percent, from the date of Lessor’s demand until reimbursement by Lessee.
Section 7.4 Lessee Waiver of Claims. Lessor shall not be liable for any loss, damage, or injury of any kind or character to any person or property arising from any use of the Demised Premises or Improvements, or caused by any defect in any building, structure, equipment, facility or other improvement on the Demised Premises, or caused by or arising from any act or omission of Lessee, or any of its agents, employees, licensees or invitees, or by or from any accident, fire or other casualty on the land, or occasioned by the failure of Lessee to maintain the Demised Premises in safe condition. Lessee waives all claims and demands on Lessee’s behalf against Lessor for any loss, damage, or injury, and agrees to indemnify and hold Lessor entirely free and harmless from all liability for any loss, damage, costs or injury of other persons, and from all costs and expenses arising from any claims or demands of other persons concerning any loss, damage or injury, caused on or about the Demised Premises.
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Section 7.5 Mutual Waiver of Subrogation. Lessor and Lessee and their successors in interest hereby waive any legal rights each may later acquire against the other party during the Term for the loss of or damage to their respective property or to property in which they may have an interest, which loss or damage is caused by an insured hazard arising out of or in connection with the Demised Premises.
ARTICLE VIII. DAMAGE OR DESTRUCTION OF IMPROVEMENTS.
Section 8.1 Damage to Demised Premises.
ARTICLE IX. EMINENT DOMAIN.
Section 9.1 Condemnation. If the Demised Premises and Improvements or any part thereof is taken for public or quasi-public purposes by condemnation in any action or proceeding in eminent domain, or are transferred in lieu of condemnation to any authority entitled to exercise the power of eminent domain, the interests of Lessor and Lessee in the award or consideration for the taking or transfer and the effect of the taking or transfer on this Lease shall be governed by this Article IX.
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Section 9.2 Taking
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Section 9.3 Temporary Taking. If the period of taking shall be less than three (3) months, this Lease shall continue in full force and effect, the Basic Rent and other charges shall xxxxx during such period of taking, and all awards for damages shall belong solely to Lessee.
Section 9.4 More Than One Taking. If more than one taking occurs during the Term, the right of the parties, as provided in this Article, shall be determined as if all such takings had all occurred at the time of the last taking, and the effect of all such takings shall be considered cumulatively.
ARTICLE X. Intentionally Omitted
ARTICLE XI. DEFAULT.
Section 11.1 Lessee’s Default.
Section 11.2 Lessor Rights.
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Section 11.3 Lessor’s Obligation to Mitigate.
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DocuSign Envelope ID: 835310B7-7674-411C-8F32-7ED0C1E168B5
Section 11.4 Confession of Judgment. In addition to, and not in lieu of any of the foregoing rights granted to Lessor:
THE FOLLOWING PARAGRAPHS SET FORTH WARRANTS OF AUTHORITY FOR AN ATTORNEY TO CONFESS JUDGMENTS AGAINST LESSEE. IN GRANTING THESE WARRANTS OF ATTORNEY TO CONFESS JUDGMENTS AGAINST LESSEE, LESSEE HEREBY KNOWINGLY, INTENTIONALLY, VOLUNTARILY, AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS LESSEE HAS OR MAY HAVE WITH RESPECT TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES OF AMERICA AND THE COMMONWEALTH OF PENNSYLVANIA. WITHOUT LIMITATION OF THE FOREGOING, LESSEE HEREBY SPECIFICALLY WAIVES ALL RIGHTS LESSEE HAS OR MAY HAVE TO NOTICE AND AN OPPORTUNITY FOR A HEARING PRIOR TO EXECUTION UPON ANY JUDGMENT ENTERED AGAINST LESSEE PURSUANT TO THE TERMS HEREOF.
UPON THE OCCURRENCE OF ANY EVENT OF DEFAULT BY LESSEE UNDER THIS LEASE, IT SHALL BE LAWFUL FOR ANY PROTHONOTARY OR ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR LESSEE AS WELL AS FOR ALL PERSONS CLAIMING BY, THROUGH OR UNDER LESSEE, AND, WITH OR WITHOUT ONE OR MORE COMPLAINTS FILED, CONFESS A JUDGMENT OR JUDGMENTS AGAINST LESSEE FOR BASIC RENT IN ARREARS OR TREATED AS IF IN ARREARS (INCLUDING THE EXTENSION TERM IF SO EXERCISED AS OF THE DATE OF THE EVENT OF DEFAULT) AND CHARGES, WHETHER OR NOT PAYABLE AS RENT AND FOR INTEREST AT THE LEASE INTEREST RATE AND COSTS, TOGETHER WITH AN ATTORNEYS’ COMMISSION OF FIVE PERCENT (5.00%) OF THE BALANCE OF RENT AND OTHER CHARGES DUE THROUGH THE END OF THE TERM OF THE LEASE, (INCLUDING THE EXTENSION TERM IF SO EXERCISED AS OF THE DATE OF THE EVENT OF DEFAULT) AS THE SAME MAY BE MODIFIED, AMENDED OR RENEWED AS IF SUCH RENT AND CHARGES HAD BEEN ACCELERATED, BUT IN NO EVENT LESS THAN TEN THOUSAND DOLLARS ($10,000) WITHOUT ANY LIABILITY ON THE PART OF SAID ATTORNEY, AND FOR WHICH THIS LEASE AS THE SAME MAY BE MODIFIED, AMENDED OR RENEWED, OR A TRUE AND CORRECT COPY THEREOF SHALL BE A SUFFICIENT WARRANT. SUCH AUTHORITY SHALL NOT BE EXHAUSTED BY ONE EXERCISE THEREOF, BUT JUDGMENT MAY BE CONFESSED FROM TIME TO TIME AS OFTEN AS ANY RENT OR CHARGES IN ARREARS OR RENT OR CHARGES TREATED AS IF IN ARREARS OR CHARGES BECOME DUE AND ARE NOT PAID. SUCH POWERS MAY BE EXERCISED DURING, AS WELL AS AFTER, THE EXPIRATION OR TERMINATION OF THE ORIGINAL TERM AND DURING, AND AT ANY TIME, AFTER ANY EXTENSION OR RENEWAL OF THE TERM.
LESSEE SIGNATURE By: , its CEO
CEO
UPON THE OCCURRENCE OF ANY EVENT OF DEFAULT OR UPON THE TERMINATION OF THIS LEASE, THE ORIGINAL TERM HEREOF OR ANY RENEWAL OR EXTENSION THEREOF ON ACCOUNT OF ANY EVENT OF DEFAULT BY LESSEE HEREUNDER, OR UPON THE EXPIRATION OF THE TERM
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DocuSign Envelope ID: 835310B7-7674-411C-8F32-7ED0C1E168B5
OF THIS LEASE OR ANY RENEWAL OR EXTENSION THEREOF, AS THE SAME MAY BE MODIFIED OR AMENDED, IT SHALL BE LAWFUL FOR ANY PROTHONOTARY OR ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR LESSEE AS WELL AS FOR ALL PERSONS CLAIMING BY, THROUGH OR UNDER LESSEE, AND, WITH OR WITHOUT ONE OR MORE COMPLAINTS FILED, CONFESS A JUDGMENT OR JUDGMENTS FOR THE RECOVERY OF POSSESSION OF THE DEMISED PREMISES, TOGETHER WITH AN ATTORNEYS' COMMISSION OF FIVE PERCENT (5.00%) OF THE BALANCE OF RENT AND OTHER CHARGES DUE THROUGH THE END OF THE TERM OF THE LEASE (INCLUDING THE EXTENSION TERM IF SO EXERCISED AS OF THE DATE OF THE EVENT OF DEFAULT), AS THE SAME MAY BE MODIFIED, AMENDED OR RENEWED, AS IF SUCH RENT AND CHARGES HAD BEEN ACCELERATED, BUT IN NO EVENT LESS THAN TEN THOUSAND DOLLARS ($10,000.00), WITHOUT ANY LIABILITY ON THE PART OF THE SAID ATTORNEY, AND FOR WHICH THIS LEASE, AS THE SAME MAY BE MODIFIED, AMENDED OR RENEWED, OR A TRUE AND CORRECT COPY THEREOF SHALL BE A SUFFICIENT WARRANT; WHEREUPON, IF LESSOR SO DESIRES, A WRIT OF POSSESSION MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR WRIT OR PROCEEDINGS WHATSOEVER. IF FOR ANY REASON AFTER SUCH ACTION HAS BEEN COMMENCED, THE SAME SHALL BE DETERMINED AND THE POSSESSION OF THE DEMISED PREMISES REMAIN IN OR BE RESTORED TO LESSEE, LESSOR SHALL HAVE THE RIGHT UPON ANY SUBSEQUENT DEFAULT, OR UPON THE TERMINATION OR EXPIRATION OF THIS LEASE, AS THE SAME MAY BE MODIFIED, AMENDED OR RENEWED, OR OF LESSEE’S RIGHT OF POSSESSION, TO BRING ONE OR MORE FURTHER ACTIONS IN THE MANNER AND FORM HEREIN SET FORTH TO RECOVER POSSESSION OF THE DEMISED PREMISES. NO SUCH DETERMINATION OF THIS LEASE, AS THE SAME MAY BE MODIFIED, AMENDED OR RENEWED, NO TAKING, NOR RECOVERING POSSESSION OF THE DEMISED PREMISES SHALL DEPRIVE LESSOR OF ANY REMEDIES OR ACTION AGAINST LESSEE FOR RENT OR FOR DAMAGES DUE OR TO BECOME DUE FOR AN EVENT OF DEFAULT UNDER THIS LEASE, AS THE SAME MAY BE MODIFIED, AMENDED OR RENEWED, NOR SHALL THE BRINGING OF ANY SUCH ACTION FOR RENT OR BREACH OF COVENANT OR CONDITION, NOR THE RESORT TO ANY OTHER REMEDY HEREIN PROVIDED FOR THE RECOVERY OF RENT OR DAMAGES FOR SUCH BREACH, BE CONSTRUED AS A WAIVER OF THE RIGHT TO INSIST UPON THE FORFEITURE AND TO OBTAIN POSSESSION IN THE MANNER HEREIN PROVIDED.
IN ANY ACTION TO CONFESS JUDGMENT FOR POSSESSION OF THE DEMISED PREMISES, LESSOR SHALL FIRST CAUSE TO BE FILED IN SUCH ACTION AN AFFIDAVIT MADE BY IT OR SOMEONE ACTING FOR IT SETTING FORTH THE FACTS NECESSARY TO AUTHORIZE THE ENTRY OF JUDGMENT, OF WHICH FACTS SUCH AFFIDAVIT SHALL BE CONCLUSIVE EVIDENCE, AND IF A TRUE COPY OF THIS LEASE (AND OF THE TRUTH OF THE COPY SUCH AFFIDAVIT SHALL BE SUFFICIENT EVIDENCE) BE FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL AS A WARRANT OF ATTORNEY, ANY RULE OF COURT, CUSTOM OR PRACTICE TO THE CONTRARY NOTWITHSTANDING.
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DocuSign Envelope ID: 835310B7-7674-411C-8F32-7ED0C1E168B5
LESSEE ACKNOWLEDGES AND AGREES THAT (A) THE WARRANT OF ATTORNEY TO CONFESS JUDGMENTS CONTAINED ABOVE IS BEING EXECUTED IN CONNECTION WITH A COMMERCIAL TRANSACTION, (B) LESSOR’S CONFESSION OF JUDGMENT FOLLOWING AN EVENT OF DEFAULT OR EXPIRATION OF THE LEASE AND IN ACCORDANCE WITH THE FOREGOING WARRANTS OF ATTORNEY WOULD BE IN ACCORDANCE WITH LESSEE’S REASONABLE EXPECTATIONS, (C) IN VIEW OF THE COMMERCIAL NATURE OF THE RELATIONSHIP BETWEEN THE PARTIES HERETO THERE IS NO EXPECTATION THAT LESSOR SHALL HAVE ANY DUTY UNDER ANY PROVISION OF § 5601.3 OF CHAPTER 56 OF THE PENNSYLVANIA PROBATE, ESTATES AND FIDUCIARIES CODE (20 PA.C.S.A. §5601.3) TO ACT IN THE BEST INTEREST OF ANY PRINCIPAL THEREUNDER AND IT IS AGREED THAT LESSOR SHALL HAVE NO SUCH DUTY, AND (D) LESSOR DOES NOT AND, IN REGARD TO THIS LEASE, SHALL NOT HAVE ANY OF THE DUTIES TO LESSEE SET FORTH IN 20 PA.C.S.A. §5601.3(B), AND THE SAME ARE HEREBY IRREVOCABLY WAIVED BY LESSEE.
LESSEE ACKNOWLEDGES THAT IT HAS HAD THE ASSISTANCE OF LEGAL COUNSEL IN THE REVIEW AND EXECUTION OF THIS LEASE (OR WAIVED SUCH LEGAL ASSISTANCE), AS THE SAME MAY BE MODIFIED, AMENDED OR RENEWED, AND FURTHER ACKNOWLEDGES THAT THE MEANING AND EFFECT OF THE FOREGOING PROVISIONS CONCERNING CONFESSIONS OF JUDGMENTS HAVE BEEN FULLY EXPLAINED TO LESSEE BY SUCH COUNSEL, AND AS EVIDENCE OF SUCH FACT AN AUTHORIZED OFFICER OF LESSEE SIGNS HIS INITIALS BELOW.
CEO
LESSEE SIGNATURE By: , its
CEO
Section 11.5 Remedies Cumulative. All remedies available to Lessor hereunder and otherwise available at law or in equity shall be cumulative and concurrent. No determination of this Lease nor taking or recovering possession of the Demised Premises shall deprive Lessor of any remedies or actions against Lessee for rent, for charges, or for damages for the breach of any term, covenant or condition herein contained, nor shall the bringing of any such action for rent, charges or breach of term, covenant or condition, nor the resort to any other remedy or right for the recovery of rent, charges or damages for such breach be construed as a waiver or release of the right to insist upon the forfeiture and to obtain possession. The failure of Lessor to insist upon strict and/or prompt performance of the terms, agreements, covenants and conditions of this Lease or any of them, and/or the acceptance of such performance thereafter shall not constitute or be construed as a waiver of Lessor’s right to thereafter enforce the same strictly according to the tenor thereof in the event of a continuing or subsequent Event of Default.
Section 11.6 Method of Calculation. In determining the amount of any future payments due Lessor due to increases in Taxes, Insurance, Basic Rent, additional rent or other charges due hereunder, Lessor may make such determination based upon the amount of such Taxes, Insurance, Basic Rent, additional rent and other charges due by Lessee for the calendar year immediately prior to such Event of Default.
Section 11.7 Expenses of Enforcement. Lessee shall pay to Lessor upon demand all of Lessor’s documented costs, charges and expenses, including the fees and out-of-pocket expenses
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of counsel, agents and others retained by Lessor incurred in enforcing Lessee’s obligations hereunder or incurred by Lessor in any litigation, negotiation or transaction in which the Lessee causes the Lessor to become involved or concerned.
ARTICLE XII. EXPIRATION OF TERM.
Section 12.1 Expiration of Term. On the expiration date of this Lease as set forth in Article 2, or the termination of the Lessee’s possession under this Lease pursuant to Article XI, or any entry or possession of the Demised Premises and Improvements by Lessor pursuant to Section 11.4 (collectively referred to as the “Expiration Date”), Lessee shall promptly quit and surrender the Demised Premises and Improvements, and deliver to Lessor actual possession and ownership of the Demised Premises and Improvements in good order, condition, and repair.
Section 12.2 Removal of Equipment. Lessee shall have the right to remove from the Demised Premises and Improvements all of Lessee’s Furniture, Fixtures and Equipment used or procured for use in connection with the operation of its business on or before the Expiration Date, provided that Lessee shall promptly repair, or cause to be repaired, any damage resulting to the Demised Premises or Improvements by reason of this removal. Any of Lessee’s Furniture, Fixtures and Equipment that remain at or on the Demised Premises after the Expiration Date shall be deemed to have been abandoned by Lessee, and may either be retained by Lessor as its property or disposed of by the Lessor without accountability to Lessee for the value of such Furniture, Fixtures and Equipment, or any proceeds derived from the sale of these items, (subject to the rights of any equipment lenders).
ARTICLE XIII. GENERAL PROVISIONS.
Section 13.1 Non-enforcement. The failure of Lessor to seek redress for violation of, or to insist on the strict performance of any covenant, agreement, term, provision, or condition of this Lease shall not constitute a waiver of the covenant, agreement, term, provision, or condition. The receipt by Lessor of rent with knowledge of the breach of any covenant, agreement, term, provision, or condition of this Lease shall not be deemed a waiver of that breach.
Section 13.2 Waivers. No provision of this Lease shall be deemed to have been waived unless the waiver is in writing and signed by the party against whom enforcement is sought. No payment by Lessee or receipt by Lessor of a lesser amount than the rent stipulated in this Lease shall be deemed to be other than for the payment of rent or other charge owing by Lessee, as Lessor shall elect. No endorsement or statement on any check or any letter accompanying any check or payment as rent shall be deemed binding on Lessor or deemed on accord and satisfaction, and Lessor may accept a check or payment from Lessee without prejudice to Lessor’s right to recover the balance of the rent or other charges owing by Lessee, and without limitation on Lessor’s right to pursue each and every remedy in this Lease or provided by law. Each right and remedy of Lessor provided for in this Lease shall be cumulative and in addition to every other right or remedy provided for in this Lease, or now or later existing at law, in equity, by statute, or otherwise.
Section 13.3 Exhibits. This Lease and the Exhibits annexed to this Lease contain the entire agreement between Lessor and Lessee, and any agreement made after the execution of this
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Lease between Lessor and Lessee shall be ineffective to change, modify, waive, release, discharge, terminate, or effect a surrender or abandonment of this Lease, in whole or in part, unless that agreement is in writing and signed by the party against whom enforcement is sought.
Section 13.4 Notices. All notices, requests, demands and other communications required or permitted hereunder shall be in writing addressed to the parties as provided below (or at such other address as may hereafter be substituted by notice in writing thereof) and shall be deemed to have been duly given upon delivery by hand (including by a nationally recognized overnight carrier), by confirmed facsimile transmission, or if sent by email, on the business day sent so long as such email notice is sent within business hours and in such event, such email shall be followed by written notice sent by certified or registered mail postmarked no later than the following business
day.
Section 13.6 Invalidity. If any term, covenant or condition of this Lease shall be invalid or unenforceable to any extent, the remainder of the terms, covenants and conditions of this Lease shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
Section 13.7 Terms. The term “Lessor”, as used in this Lease in relation to the Lessor’s covenants and agreements under this Lease, shall be limited to mean and include only the owner or owners of fee estate to the Demised Premises at the time in question. In the event of any conveyance of this fee estate, Lessor named in this Lease and each subsequent grantor shall be automatically relieved, at the date of conveyance, of all liability in respect to the performance of any of Lessor’s covenants and agreements remaining to be performed after the date of conveyance, and each grantee shall be bound by all of the covenants and agreements remaining to be performed under the Lease during the time of grantee’s ownership of the leasehold interest.
Section 13.8 Non-Recourse. Anything contained in this Lease to the contrary notwithstanding, Lessee agrees to look solely to the Demised Premises and Lessor’s interest in the Demised Premises for the collection and satisfaction of any judgment that Lessee may obtain against Lessor because of the Lessor’s failure to observe or perform any of its covenants or obligations under this Lease, including, but not limited to, the breach of the covenant of quiet enjoyment, whether express or implied. If Lessee receives any judgment resulting from the Lessor’s failure to observe or perform any of its covenants or obligations under this Lease, Lessee further agrees not to collect or execute, or attempt to collect or execute, that judgment out of or against any other assets or properties of Lessor.
Section 13.9 Successors and Assigns. This Lease shall inure to the benefit of and be binding on Lessor and Lessee and their respective distributees, personal representatives, executors, successors, and assigns except as otherwise provided in this Lease. Any references in this Lease to Lessor and Lessee shall be deemed to include their respective successors and assigns.
Section 13.10 Quiet Enjoyment. Lessor covenants and agrees that Lessee, on payment of rent and other charges provided for in this Lease and fulfillment of the obligations under the covenants, agreements and conditions of this Lease, shall lawfully and quietly hold, occupy and
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enjoy the Demised Premises during the term of this Lease without any interference from anyone claiming through or under Lessor.
Section 13.11 Relationship of Parties. Nothing contained herein shall be deemed or construed by the parties hereto, nor by any third party, as creating the relationship of principal and agent, partnership, joint venture, or any relationship between the parties hereto other than that of Lessor and Lessee.
Section 13.12 Consent. Whenever it is necessary under the terms of this Lease for either party to obtain the consent or approval of the other party, such consent or approval shall, unless otherwise specified in this Lease, not be unreasonably withheld or delayed.
Section 13.13 Governing Law. This Lease shall be construed and enforced in accordance with the laws of the Commonwealth in which the Demised Premises is located.
Section 13.14 Disputes. If at any time a dispute shall arise as to any amount or sum of money to be paid by one party to the other or any work to be performed by either of them under the provisions hereof, the party against whom the obligation to pay or to perform is asserted shall have the right, but not the obligation, to make payment or perform such work and pay the cost thereof “under protest,” and such payment or performance shall not be regarded as a voluntary payment or performance and the right of such party to institute suit to recover the amount paid “under protest” shall survive. If it shall be adjudged or mutually agreed by Lessor and Lessee that there was no legal obligation on the part of such party to pay such sum or any part thereof or that such party was not legally obligated to perform, such party shall be entitled to recover the amount paid “under protest” or so much thereof as it was not legally required to pay under the provisions of this Lease, plus interest thereon at the Interest Rate specified in Section 16.13 hereof, from the date on which such payment was made until the date on which reimbursement is received.
Section 13.15 Counterparts. This Lease may be executed in several counterparts, including counterparts transmitted by facsimile or electronic mail, each of which shall be deemed an original, but all of which together shall constitute one and the same Lease. Signatures to this Agreement transmitted by facsimile, sent by email (including “.pdf”), or delivered by other electronic means shall be valid and effective to bind the Party so signing. Each Party agrees to promptly deliver an execution original to this Agreement with its actual signature to the other Party upon request, but a failure to do so shall not affect the enforceability of this Agreement, it being expressly agreed that each Party to this Agreement shall be bound by its own facsimile or other electronic signature and shall likewise accept the facsimile or other electronic signature of the other Party.
Section 13.16 Modification. This Lease may not be modified except by a written agreement signed by both Lessor and Lessee.
Section 13.17 Brokers. Lessor and Lessee represent and warrant that they have not dealt with any real estate agent or broker in connection with this transaction other than Institutional Property Advisors/ Marcus & Millichap and Ben Tashakorian. Lessor and Lessee shall each
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indemnify and save other harmless from and against all liability, damage, loss, cost and expense incurred by reason of the indemnitor’s breach of such representation and warranty.
ARTICLE XIV. ESTOPPEL CERTIFICATE; DOCUMENTATION AND RECORDING OF LEASE.
Section 14.1 Estoppel Certificates. Lessor or Lessee shall have the right to request the other party to provide an estoppel certificate, as described below, without charge, at any time on or after ten (10) days after the requesting party sends written notice. This estoppel certificate shall consist of a written statement certifying the following information to the requesting party or to any person specified by that party:
ARTICLE XV. ASSIGNMENT AND SUBLETTING
Section 15.1 Assignment. Except as provided otherwise herein, Lessee covenants and agrees not to assign this Lease or to sublease the whole or any part of the Demised Premises or to permit any other persons to occupy same without the prior written consent of Lessor, which consent shall not be unreasonably withheld or delayed. Lessee may assign this Lease or sublease the Demised Premises, without Lessor’s consent, to (a) any parent, subsidiary or affiliate entity of Lessee; or (b) an entity resulting from the consolidation or merger of Lessee into or with any other entity; or (c) the sale of all or substantially all of the assets of the Lessee in the state in which the Demised Premises is located;. As used herein, the phrase “affiliate entity” means a person or business entity, corporate or otherwise, that, through one or more intermediaries, controls or is controlled by, or is under common control with Lessee.
Lessor’s consent to any assignment or subletting shall not constitute a waiver of the necessity for such consent to any subsequent assignment or subletting. The acceptance of rent from any other person shall not be deemed to be a waiver of any of the provisions of this Lease or to be consent to the assignment of this Lease or subletting of the Demised Premises.
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Any transfer of an ownership interest in Lessee by merger, consolidation, sale of stock, membership interests, other capital reorganization or liquidation shall constitute an assignment or sublet for the purpose of this Lease and shall therefore require the consent of Lessor. In such event, if consent is given, the surviving entity specifically shall assume in writing Lessee’s obligations under this Lease.
Section 15.2 Lessor’s Right to Assign. Lessor shall have the right to assign this Lease to any third party other than a competitor of Lessee, provided that Lessor gives notice to Lessee of such assignment.
ARTICLE XVI. SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT OF FEE MORTGAGES.
Section 16.1 Non-Disturbance Agreement. If Lessee is not in default hereunder, Lessor shall cause:
Section 16.2 Subordination. If Lessor is not in default under the terms of this Lease, Lessee shall subordinate this Lease to an existing or future first deed of trust or mortgage covering the Demised Premises by executing and delivering an agreement in the form attached hereto as Exhibit C within thirty (30) days of Lessee’s receipt of a copy of such agreement duly executed and acknowledged by Lessor and Lessor’s lender with respect to the mortgage or deed of trust to which this Lease is to be subordinate. Except as set forth in this Section, this Lease shall at all times be and remain prior and paramount to the lien and charge of all leases and deeds of trust or mortgages.
Section 16.3 Attornment. Lessee agrees that if the mortgagee, beneficiary or any other person claiming under a mortgage or deed of trust to which Lessee has subordinated shall succeed to Lessor’s interest in this Lease, Lessee will recognize such mortgagee, beneficiary or person as its Lessor under the provisions of this Lease, provided that such mortgagee, beneficiary or other person, during the period in which it shall be in possession of the Demised Premises, and thereafter its successor in interest, shall assume all of the obligations of Lessor hereunder and shall have executed and delivered the non-disturbance, subordination and attornment agreement referred to in Section 16.2 above. Any purchaser taking title to the property by reason of such foreclosure or sale shall take title subject to this provision and shall be bound by any approvals or consents made or given by Lessor pursuant to this Lease prior to the date on which title to the Demised Premises was transferred.
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Section 16.4 Mortgage Protection. Lessee shall give any mortgagees of the Demised Premises by registered or certified mail, return receipt requested, or overnight delivery service, requiring a signed delivery receipt, a copy of any notice of default sent to Lessor by Lessee, provided that, prior to such notice, Lessee has been notified, in writing (by way or notice of assignment of rents and lease or otherwise), of the address of such mortgagees. If Lessor shall have failed to cure such default within the time provided for in this Lease, then the mortgagees shall have thirty (30) days within which to cure such default or, if such default cannot be cured within that time, then such additional time as may be necessary if, within such thirty (30) days, any mortgagee has commenced and is diligently pursuing the remedies necessary to cure such default (including, but not limited to, commencement of foreclosure proceedings, if necessary to effect such cure).
ARTICLE XVII. TENANT FINANCIAL INFORMATION
Section 17.1 Tenant Financial Information. Tenant agrees to provide Landlord with company specific financials annually. Currently, Precision is reported a separate line item on the financials of the parent company, Live Industries. If Live Industries does not report the individual financials, than Precision shall produce financials to Landlord.
ARTICLE XVIII GUARANTY
Section 18.1 Guaranty. Both Kinetic and Precision agree to guarantee the lease for either
party.
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DocuSign Envelope ID: 2FDA8057-C729-40FE-A57D-9297E7EF6E27
IN WITNESS WHEREOF, Lessor and Lessee, intending to be legally bound hereby, have executed this Lease under seal as of the Effective Date.
Lessee:
Precision Industries, Inc.
By:
Xxx Xxxxxx
Lessee:
The Kinetic Co., Inc.
Xxx Xxxxxx By:
Lessor:
Xxxx Family Trust
By:
Xxxxx Xxxx
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EXHIBIT A
MEMORANDUM OF LEASE
Prepared by:
MEMORANDUM OF LEASE
Notice is hereby given of the following Lease:
Live Ventures Incorporated
000 X. Xxxx Xxxxxxx Xxxx, Xxxxx 000 Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxx Xxxxxxx, Esq., General Counsel Facsimile: (000) 000-0000
Email: xxxxxxxx@xxxxxxxxxxxx.xxx
This instrument, being a Memorandum of Lease, is intended by the parties hereto to give constructive notice of such Lease. It is not intended to affect, in any way, the rights and obligations of the parties to such Lease. All capitalized terms used in this Memorandum are as defined in the Lease unless otherwise defined herein.
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IN WITNESS WHEREOF, the parties hereto, and to such Lease, have either set, or caused to be set, their respective hands and seals, and, if a corporation or limited liability company, such is done by a duly authorized officer or member thereof, all as of the day of 2020.
Attest: LESSOR:
By:
Witness: LESSEE:
By:
STATE OF )
) SS.
COUNTY OF )
Before me, the undersigned, a Notary Public in and for the State and County aforesaid, an officer duly authorized to take acknowledgements, personally appeared
known to me to be the person described in and who executed the foregoing instrument; and who acknowledged before me that he or she executed this instrument for the purposes stated therein and of his or her own free will.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, this
day of , 2020, in this State and County.
My commission expires: Notary Public
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EXHIBIT B
ESTOPPEL AND CONSENT AGREEMENT
ESTOPPEL CERTIFICATE AND CONSENT
RE: Demised Premises: Lease:
Lessor:
Lessee:
The undersigned Lessor/Sub Lessor under the Lease/Sublease described above certifies to
a , in connection with the placing of a leasehold mortgage the following:
All above rental amounts under the Lease have been paid in full by Lessee through , 2020. The amount of rent prepaid, if any, is $0, and the security deposit made, if any, is $50,000.00.
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LESSOR:
By: Date: , 2019
Name: Title:
STATE OF )
) SS.
COUNTY OF )
Before me, the undersigned, a Notary Public in and for the State and County aforesaid, an officer duly authorized to take acknowledgements, personally appeared
known to me to be the person described in and who executed the foregoing instrument; and who acknowledged before me that he or she executed this instrument for the purposes stated therein and of his or her own free will.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, this
day of , 2020, in this State and County.
My commission expires: Notary Public
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EXHIBIT C
SUBORDINATION, NON-DISTURBANCE AND ATTONMENT AGREEMENT
SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
This SUBORDINATION, NONDISTURBANCE AND ATTORNMENT
AGREEMENT (this “Agreement”), is made as of the day of , 20 , among
, a , and its successors and
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assigns (“Lender”), , a
(“Lessee”).
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(“Lessor”), and
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WHEREAS, Lender has made a loan to Lessor which was secured by a Deed of Trust, Security Agreement and Assignment of Leases and Rents (the “Deed of Trust”)
recorded with the Office of the Register of Deeds of County,
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in Book
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, page
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and covered Lessor’s interest in
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certain real property located at and more particularly described in Exhibit A attached hereto (the “Property”); and
WHEREAS, Lessee has entered into a certain , as the same may have
been amended, modified or supplemented (the “Lease”) dated , ,
with Lessor, covering a certain portion of the Property (the “Demised Premises”); and
WHEREAS, a notice or memorandum of the Lease was recorded with the Office of the Register of Deeds of County, in Deed Book , at Page ; and
WHEREAS, Lender, Lessor and Lessee desire to confirm their understanding, with respect to the Lease and the Deed of Trust;
NOW, THEREFORE, in consideration of the promises set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
Subordination. Subject to the provisions hereof, Lessee agrees that the Lease shall in all respects be, and is hereby expressly made, subject and subordinate at all times to the lien of the Deed of Trust and to all of the terms, conditions and provisions thereof and to all advances and/or payments made or to be made thereunder, as the same may hereafter be amended from time to time. Nothing contained in this Agreement shall in any way impair or affect the lien created by the Deed of Trust. Notwithstanding the foregoing, Lender agrees that all proceeds of property insurance maintained under the Lease and all eminent domain damages will be disbursed in accordance with the provisions of the Lease and will be made available to Lessor or Lessee for restoration of the building and other improvements on the Property to the extent required by the Lease, subject only to reasonable regulation regarding the disbursement thereof.
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Attornment.
In the event that Lender acquires or succeeds to the interests of Lessor under the Lease by reason of a foreclosure of the Deed of Trust, deed in lieu of foreclosure or otherwise (collectively, a “Foreclosure”), Lessee shall be bound to Lender under all of the terms, covenants and conditions of the Lease, except as provided in this Agreement, for the balance of the term thereof remaining, with the same force and effect as if Lender were Lessor. Lessee hereby agrees in such event to (i) attorn to Lender as its Lessor on such terms, (ii) affirm its obligations under the Lease, and (iii) make payments of all sums thereafter becoming due under the Lease to Lender. Said attornment, affirmation and agreement is to be effective and self-operative without the execution of any further instruments upon Lender succeeding to the interests of Lessor under the Lease.
Lessee agrees to execute and deliver at any time and from time to time, upon the request of Lessor or Lender, any instrument or certificate deemed to be necessary or appropriate to evidence such attornment.
From and after such attornment, Lender shall be bound to Lessee under all the terms, covenants and conditions of the Lease with the same force and effect as if originally entered between said parties; provided, however, Lender shall not be:
except as provided in Section 2(d) below, obligated to cure any defaults under the Lease of any prior Lessor which occurred prior to the date Lender obtained title to or possession of the Property, provided, however, that the foregoing shall not limit Lender’s obligation to correct any conditions that existed as of the date of attornment which violate Lender’s obligations as Lessor under the Lease;
except as provided in Section 2(d) below, subject to any offsets or defenses which Lessee might have against any prior Lessor (including Lessor), provided, however, that the foregoing shall not limit Lessee’s right to exercise against Lender any right of Lessee to any offset or defense otherwise available to Lessee because of events occurring after the date of attornment;
bound by any payment of fixed rent, percentage rent or additional rent that Lessee may have made to any prior Lessor (including Lessor) more than thirty (30) days in advance of the date such rent was first due and payable under the Lease;
bound by any modification or amendment of the Lease which increases the obligations or responsibilities of Lessor thereunder or changes the rent or the term thereof and is made without Lender’s written consent; or
bound by any consensual or negotiated surrender of the Demised Demised Premises or termination of the Lease, in whole or in part, agreed upon between any prior Lessor (including Lessor) and Lessee, unless effected unilaterally by Lessee pursuant to the express terms of the Lease.
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Notwithstanding anything to the contrary contained in Paragraph 2(c) above, if the Lessor under the Lease commits an act or omission which, with the giving of notice and/or the passage of time, would constitute a default in the performance of Lessor's obligations under the Lease, Lender or any purchaser or grantee pursuant to a Foreclosure shall be subject to any and all claims, offsets or defenses of Lessee arising from such act or omission, provided that Lender received notice of such act or omission and an opportunity to cure same as required by the Lease or this Agreement.
Non-Disturbance. Provided Lessee is not in default under the terms of the Lease and complies with this Agreement, Lender agrees that in the event Lender takes possession of the Property pursuant to any provision of the Deed of Trust or Lender acquires title to the Property by reason of a Foreclosure, Lessee’s possession and occupancy of the Demised Premises and Lessee’s rights and privileges under the Lease during the term thereof (including any renewal term) shall not be disturbed or affected in any manner, and Lender shall recognize the Lease and Lessee’s rights thereunder. If Lessee is not in default in the payment of rent or additional rent or in the performance of the terms, covenants and conditions of the Lease on Lessee’s part to be performed, Lender will not join Lessee as a party defendant in any action or proceeding for the purpose of terminating Lessee’s interest and estate under the Lease, except to terminate an option to purchase, if any, because of any default under the Deed of Trust. Subject to the limitations and conditions contained herein, Lender upon Foreclosure shall be deemed to be Lessor and shall assume the obligations of Lessor under the Lease thereafter arising or accruing.
Payment of Rent to Lender. From and after Lessee’s receipt of written notice from Lender (“Rent Payment Notice”), Lessee shall pay all rent to Lender or as Lender shall direct in writing, until such time as Lender directs otherwise in writing. Lessee shall comply with any Rent Payment Notice notwithstanding any contrary instruction, direction or assertion from Lessor. Lender’s delivery to Lessee of a Rent Payment Notice, or Lessee’s compliance therewith, shall not be deemed to: (a) cause Lender to succeed to or to assume any obligations or responsibilities as Lessor under the Lease, all of which shall continue to be performed and discharged solely by Lessor unless and until any attornment has occurred pursuant to this Agreement; or (b) relieve Lessor of any obligations under the Lease. Lessor irrevocably directs Lessee to comply with any Rent Payment Notice, notwithstanding any contrary direction, instruction, or assertion by Lessor. Lessee shall be entitled to rely on any Rent Payment Notice. Lessee shall be under no duty to controvert or challenge any Rent Payment Notice. Lessee’s compliance with a Rent Payment Notice shall not be deemed to violate the Lease. Lessor hereby releases Lessee from, and shall indemnify and hold Lessee harmless from and against, any and all loss, claim, damage, liability, cost or expense (including payment of reasonable attorneys’ fees and disbursements) arising from any claim based upon Lessee’s compliance with any Rent Payment Notice. Lessor shall look solely to Lender with respect to any claims Lessor may have on account of an incorrect or wrongful Rent Payment Notice. Lessee shall be entitled to full credit under the Lease for any rent paid to Lender pursuant to a Rent Payment Notice to the same extent as if such rent were paid directly to Lessor.
Notices.
All notices, demands and requests (collectively the “Notices”) required or permitted to be given under this Agreement must be in writing and shall be deemed to have been given if personally delivered or delivered by reliable overnight courier or mailed, first class postage
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prepaid and shall be deemed delivered as of the date of such Notice if (i) delivered to the party intended; (ii) delivered to the then current address of the party intended, or (iii) rejected at the then current address of the party intended, provided such Notice was sent prepaid. The addresses of the parties are:
If to Lender:
If to Lessee:
If to Lessor:
Upon at least ten (10) days prior written Notice, each party shall have the right to change its address to any other address within the United States of America.
Miscellaneous. This Agreement (i) contains the entire agreement with respect to the subject matter hereof; (ii) may not be modified or terminated, nor may any provision hereof be waived, orally or in any manner other than by an agreement in writing signed by the parties hereto or their respective successors, administrators and assigns; and (iii) shall inure to the benefit of, and be binding upon, the parties hereto, and their successors and assigns (including, without limitation, (a) Lessee’s permitted assignees, (b) any subsequent holder of the Deed of Trust, and (c) any purchaser or grantee of the Property pursuant to a Foreclosure).
Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the state in which the Property is located.
IN WITNESS WHEREOF, Lender, Lessor and Lessee have executed this Agreement under seal effective as of the day and year first above written.
LENDER
[ ] By: Name:
Title:
LESSEE LESSOR
By: By:
Title:
00
XXXXX XX XXXXXX XX
00
Xx this
44
day of
45
, 2020, before me, the undersigned notary public,
46
personally appeared proved to me through satisfactory evidence of
identification, which was , to be the person whose name is signed on the preceding or attached document, and acknowledged to me that (he/she) signed it voluntarily as for , a for its stated purpose.
Notary Public
My Commission Expires:
STATE OF COUNTY OF
On this day of , 2020, before me, the undersigned notary public,
personally appeared proved to me through satisfactory evidence of
identification, which was , to be the person whose name is signed on the preceding or attached document, and acknowledged to me that (he/she) signed it voluntarily as for , a for its stated purpose.
Notary Public
My Commission Expires:
STATE OF COUNTY OF
47
On this
48
day of
49
, 2020, before me, the undersigned notary public,
50
personally appeared proved to me through satisfactory evidence of
identification, which was , to be the person whose name is signed on the preceding or attached document, and acknowledged to me that (he/she) signed it voluntarily as for , a for its stated purpose.
Notary Public
My Commission Expires:
51
