LEASE AGREEMENT
Dated: ________________, 1997
By and Between
XXXX XXXXXXX ("Lessor")
and
AJAX MANUFACTURING COMPANY ("Lessee")
Premises: 00 Xxxxxx Xxxx
Xxxxxxxxxxxx, Xxx Xxxxxx
TABLE OF CONTENTS
Page
----
1. Term................................................................... 2
2. Rental................................................................. 2
3. Taxes and Assessments.................................................. 4
4. Fire Insurance......................................................... 7
5. Indemnity: Public Liability Insurance:
Environmental Matters.................................................. 8
6. Destruction of Improvements............................................ 17
7. Condition of Premises and Repairs...................................... 18
8. Utilities.............................................................. 21
9. Mechanics' and Other Liens............................................. 21
10. Personal Property and Trade Fixtures................................... 22
11. Peaceful Possession and Use of Premises................................ 23
12. Default................................................................ 23
13. Condemnation........................................................... 27
14. Notices and Demands.................................................... 29
15. Subordination.......................................................... 30
16. Binding Effect: Assignment and Subletting............................. 31
17. Surrender on Expiration of Term and Holding Over....................... 32
18. Representations, Warranties and Covenants.............................. 33
19. Transfer of Lessor's Interest.......................................... 34
20. Option to Purchase..................................................... 34
21. General................................................................ 37
22. Disposal of Lessee's Property.......................................... 40
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EXHIBITS
Exhibit "A" Legal Description
Exhibit "B" Permitted Exceptions
ii
LEASE AGREEMENT
THIS AGREEMENT is dated as of the _____ day of ________, 1997, by and
between XXXX XXXXXXX (hereinafter called "Lessor"), having an address at 0000
Xxxxx Xxx Xxxxx, Xxxxx Xxxxx, Xxxxxxx 00000 and AJAX MANUFACTURING COMPANY, a
New Jersey corporation (hereinafter called "Lessee"), having an address at 000
Xxxxxx Xxxx, Xxxxxxxxxxxx Xxxxxxxx, Xxx Xxxxxx 00000-0000.
W I T N E S S E T H:
Lessee desires to lease from Lessor and Lessor desired to lease to
Lessee, subject to the terms, provisions and conditions hereinafter set forth,
the property described on Exhibit "A" attached hereto, together with all
buildings, structures, facilities and other improvements located thereon, and
all appurtenances thereto, said premises, improvements, facilities and
appurtenances being hereinafter collectively referred to as the "Leased
Premises", more commonly known as 00 Xxxxxx Xxxx, Xxxxxxxxxxxx, Xxx Xxxxxx. This
Lease is the Lease referred to in Section 14.15 of the Stock Purchase Agreement
dated __________, 1997 to which, Lessor and Lessee are parties (the "Purchase
Agreement").
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
promises contained herein, and other good and valuable consideration, the
receipt and sufficiency of which hereby acknowledged, and in consideration of
the covenants of payment and performance stipulated herein, the parties hereto
agree as follows:
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1. Term.
(a) Lessee hereby leases from Lessor and Lessor hereby leases
to Lessee the Leased Premises, for a term commencing as of the ___ day of
________, 1997 (the "Effective Date"), and continuing in effect for a period of
five (5) years, provided that if the term commences on a day other than the
first day of a month, then the term shall extend for such fractional month (the
"Initial Term"), upon which date this Lease shall terminate unless extended as
provided in Section 1(b), unless sooner terminated under the provisions hereof.
(b) Provided this Lease is then in effect and Lessee is not
then in default hereunder, Lessee may extend the term of this Lease for four (4)
additional five-year periods (each, a "Renewal Term") on the same terms and
conditions as are then in effect (except that the rent shall be increased in
accordance with Section 2(b)), by giving Lessor written notice of Lessee's
exercise of each option at least six (6) months before the expiration of the
then current term.
2. Rental.
(a) In consideration of the use and possession of the Leased
Premises, Lessee agrees to pay to Lessor base rent ("Base Rent") in the amount
of $50,000.00 per month commencing on the Effective Date, and in advance on the
first day of each succeeding month thereafter through the end of the Initial
Term, without any deduction or offset and without any previous demand therefor.
Any installment of Base Rent or additional payments due by Lessee
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hereunder that are not paid within five (5) days after the due date, shall bear
a late charge equal to five percent (5%) of the amount due, and such amount
shall be payable without demand simultaneously with the rent arrearage or other
payment. Any amount owed Lessor by Lessee which is not paid when due shall bear
interest from the due date of such amount until paid at a annum rate equal to
three percent (3%) in excess of the Prime Rate of interest as set forth from
time to time in the Money Rates Section of the Wall Street Journal. Should the
term of this Lease commence on a day other than the first day of a calendar
month, Lessee shall only pay Lessor, for such initial month, proportion of said
monthly rental based on the number of days from the Effective Date to the end of
such month. All rental payments shall be due and payable at the address
specified below to which notices are to be given to Lessor or at such other
place as Lessor may, from time to time, designate by notice to Lessee.
(b) If Lessee elects to extend this Lease pursuant to Section
1(b), the them Base Rent for each Renewal Term shall be subject to adjustment at
the commencement of each Renewal Term by adding to the Base Rent for the
immediately preceding month (the "Preadjustment Base Rent"), an amount
determined by multiplying the Preadjustment Base Rent by the percentage increase
in the Consumer Price Index ("CPI") during the preceding five (5) year term (the
"Term"), measured by reference to the index for the first month of the
applicable Term and the index in effect for the last month of such Term. For
purposes of this Section, the term CPI shall be
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defined as the Consumer Price Index for Urban Wage Earners (1982-84 = 100) as
published in the United States Bureau of Labor Statistics (or successor index)
for the smallest statistical subdivision containing the Leased Premises.
Notwithstanding the foregoing, in no event shall the Base Rent be adjusted
downwards.
3. Taxes and Assessments.
(a) In addition to the rental payments specified above, Lessee
agrees to pay, as additional rent, all Real Estates Taxes (as hereafter defined)
which may be levied or assessed against, upon or with respect to the Leased
Premises by any state, county, city or any other governmental agency or taxing
authority at any time or times, throughout the term of this Lease, and all such
taxes and assessments for the years in which the term of this Lease begins or
terminates shall be apportioned and adjusted between Lessor and Lessee on the
basis of the number of days in such year during which this Lease was effective.
Assessments shall be payable in installments, as permitted by the applicable
governmental taxing authority, and Lessee shall be responsible only for such
installments, or portions thereof, allocable for periods falling during the term
of this Lease. Lessor shall furnish to Lessee all bills for Real Estate Taxes
promptly upon receipt from the applicable governmental taxing authority, along
with Lessor's computations of the amount due if the taxes and assessments on the
xxxx relate to both the Leased Premises and other property. Lessee shall remit
to Lessor for payment the amount of the Real Estate Taxes then due as per the
xxxx and/or the computation provided by
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Lessor. Lessor shall promptly provide Lessee with copies of receipts for tax
payments or other satisfactory evidence of payment of the Real Estate Taxes,
provided that the Lessee has paid Lessor the Real Estate Taxes for which
receipts or other evidence of payment have been requested. Upon failure of
Lessee to make such payments to Lessor in the amount of the Real Estate Taxes,
Lessor may (but shall not be obligated to) make payment thereof and charge the
same to Lessee as additional rent.
(b) Lessee shall likewise pay to the applicable governmental
taxing authority all taxes and assessments which may be lawfully charged,
assessed or levied upon or with respect to any trade fixtures, equipment or
other property of Lessee situated in or upon the Leased Premises at any time or
times, and all license fees, sales and use taxes which may be lawfully imposed
upon or with respect to the business or operations of Lessee in or upon the
Leased Premises at any time or times.
(c) All such Real Estate Taxes as are to be paid by Lessee,
whether such payment is to be made to Lessor pursuant to Section 3(a) or
directly to the applicable governmental taxing authority pursuant to Section
3(b), shall be paid prior to the time when the same become delinquent, provided
only that if Lessee considers any such tax or assessment to be excessive,
invalid or illegal (in whole or in part), Lessee may defer payment thereof or
compliance therewith to the extent permitted by the laws or regulations of the
applicable governmental taxing authority, so long as the validity or amount
thereof is contested by Lessee in
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good faith and Lessee's occupancy of the Leased Premises is not disturbed
thereby and no tax lien or liens will be placed against the Leased Premises on
account thereof and no tax lien foreclosure sale of any part of, or interest in,
the Leased Premises is permitted to be held or conducted on account thereof. Any
such contest shall be at Lessee's sole cost and expense, and upon conclusion or
abandonment of any such contest, Lessee shall promptly make payment of such
taxes and assessments to the extent the same shall then be due and payable.
(d) The term "Real Estate Taxes" shall mean all real property
taxes and assessments, special or otherwise, without discounts and personal
property taxes, charges and assessments, which are levied, assessed upon or
imposed by any governmental authority during any calendar year of the term
hereof with respect to the Leased Premises and any improvements, fixtures and
equipment and all other property of Lessor, real or personal, located on the
Leased Premises or any building thereon and used in connection with the
operation of the Leased Premises or any buildings, and any tax which shall be
levied or assessed in addition to or in lieu of such real or personal property
taxes, and any license fees, tax measured by or imposed upon rents, or other tax
or charge upon Lessor's business of leasing the Leased Premises, but shall not
include any federal, state or municipal income franchise, estate or transfer
taxes. Should the State of New Jersey, or any political subdivision thereof, or
any governmental authority having jurisdiction over the Leased Premises, impose
a tax assessment or
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charge a fee which Lessor shall be required to pay wholly or partially in
substitution for (or in addition) any of the above Real Estate Taxes, all such
taxes, assessments, fees or changes shall be deemed to constitute Real Estate
Taxes hereunder. In the event that Real Estate Taxes are assessed by a
governmental authority on property which includes both the Leased Premises and
other property (collectively the "Assessment Parcel"), the Real Estate Taxes
shall be an amount equal to (i) the taxes, assessments and charges specifically
identifiable with the improvements, fixtures, equipment and other property on
the Leased Premises, or in the absence of specific identification of the taxes,
assessments and charges attributable to said property, an amount which Lessor
reasonably determines to be attributable thereto, plus (ii) Lessee's
Proportionate Share of the excess of the total taxes, assessments and charges of
the Assessment Parcel over said amount determined in clause (i). For purposes of
this Section 3, Lessee's Proportionate Share shall be the same ratio as the
acreage of the Leased Premises bears to the total acreage of the Assessment
Parcel.
4. Fire Insurance.
(a) Lessee agrees, at Lessee's sole cost and expense, to
obtain and maintain in force during the term of this Lease, fire and extended
coverage insurance with respect to the buildings and improvements constituting a
portion of the Leased Premises, in an amount not less than the full insurable
value thereof, upon terms and conditions reasonably acceptable to the Lessor.
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(b) Such insurance shall be secured and maintained through
solvent, responsible insurance companies, authorized to do business in the State
of New Jersey, approved by Lessor, in Lessor's reasonable discretion, with all
losses under such insurance to be payable to Lessor for application as
hereinafter provided. Prior to entering into possession of the Leased Premises,
Lessee agrees to furnish and thereafter maintain with Lessor certificates of
such insurance stating that the above insurance is in force and that the same
will not be materially amended, canceled or not renewed without thirty (30)
days' advance written notice to Lessor and to any mortgagee named in an
endorsement thereto, and Lessee shall furnish to Lessor renewals thereof at
least fifteen (15) days prior to expiration.
5. Indemnity: Public Liability Insurance:
Environmental Matters.
(a) Lessee covenants and agrees to indemnify and save Lessor
harmless from each and every loss, cost, damage, liability, penalty, claim,
charge and expense, including reasonable attorneys' fees ("Loss"), which may be
imposed upon or incurred by or asserted against Lessor and/or Lessor's agents,
servants or employees by reason of any of the following which shall occur during
the term of this Lease:
(i) Lessee's use of the Leased Premises;
(ii) the conduct of Lessee's business;
(iii) any work or act done in, on or about the Leased
Premises or any part thereof at the direction of Lessee, its
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agents, contractors, subcontractors, servants, employees, licensees or invitees;
(iv) any negligence or other wrongful act or omission
on the part of Lessee or any of its agents, contractors, subcontractors,
servants, employees, licensees or invitees;
(v) any accident, injury or damage to any person or
property incurring in, on or about the Leased Premises or any part thereof,
unless caused by the gross negligence or willful misconduct of Lessor, Lessor's
agents, contractors, subcontractors, licensees, invitees, servants, or
employees; and
(vi) any misrepresentation by Lessee under this Lease
or any failure on the part of Lessee to perform or comply with any of the
covenants, agreements, terms, provisions, conditions or limitations contained in
this Lease on its part to be performed or complied with.
(b) During the term of this Lease, Lessee agrees to secure and
maintain in full force, with respect to the Leased Premises and Lessee's use
thereof, commercial general liability insurance with limits of not less than
$2,000,000 with respect to bodily injury or death of any one person; nor less
than $5,000,000 with respect to bodily injury or death of any number of persons
in any one accident; nor less than $2,000,000 with respect to property damage in
any one accident with limits, terms and conditions substantially the same as
those applicable to such insurance in effect immediately prior to the Effective
Date. In addition to the foregoing, Lessee shall also be responsible, at
9
Lessee's own cost, to keep and maintain (i) insurance in respect of and covering
Lessee's own furniture, furnishings, equipment and other personal property, all
insured for the replacement cost thereof, against all risks and hazards,
including but not limited to sprinkler and leakage and theft and other perils
which Lessor deems reasonably necessary, and (ii) workers' compensation
insurance with respect to and covering all employees of Lessee at the statutory
limits.
(c) Such insurance shall be secured and maintained through
solvent, responsible insurance companies, authorized to do business in the State
of New Jersey, and approved by Lessor, in Lessor's reasonable discretion. Each
such insurance policy shall name Lessor as an additional insured and, prior to
entry into possession of the Leased Premises, Lessee agrees to furnish and
thereafter maintain with Lessor certificates of insurance stating that the above
insurance is in force and that same will not be materially amended, canceled or
not renewed without thirty (30) days' advance written notice to Lessor, and to
any mortgagee named in an endorsement thereto, and Lessee shall furnish to
Lessor renewals thereof at least fifteen (15) days prior to expiration. The
liability insurance obtained by Lessee hereunder shall be primary and
non-contributory, contain cross-liability endorsements and insure Lessor against
Lessee's performance under Section 5(a) hereof.
(d) As material part of the consideration to Lessor, Lessee
assumes all risk of damage to property or injury to persons
10
in or about the Leased Premises arising from any cause and Lessee hereby waives
all claims in respect thereof against Lessor, except for any claim arising out
of Lessor's gross negligence or willful misconduct.
(e) (i) Lessor shall not be liable to, and shall not be
obligated to indemnify Lessee for any liability, loss, claim, damage or expense,
including, but not limited to, reasonable attorneys' and experts' fees, clean-up
or other remediation costs and fees, and governmental fines ("Costs"), arising
out of or in connection with the existence of any toxic or hazardous materials,
pollutants, contaminants or hazardous wastes ("Hazardous Materials") existing on
the Leased Premises in violation of any Environmental Law, as defined
hereinafter, as of the Effective Date, except as otherwise provided in, and
limited by, the terms of the Purchase Agreement. Lessee hereby indemnifies,
agrees to defend and shall hold Lessor harmless from and against all Costs which
arise during or after the term arising out of or in connection with the
existence of any Hazardous Materials introduced to the Leased Premises or any
Release (as defined below) of any Hazardous Materials by Lessee or its agents,
contractors, employees or from sources within Lessee's reasonable control in
violation of any Environmental Law. As used herein, the term "Release" means any
releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping or disposing into the environment of any
Hazardous Material in contravention of any Environmental Law.
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(ii) The term "Environmental Law" shall mean any
federal, state or Environmental, local, statute, act, law, ordinance, rule,
regulation or order pertaining to the environment whether now or hereafter
enacted and whether or not listed in this definition, including but not limited,
to the following:
(A) The Comprehensive Environmental Response
Compensation and Liability Act ("CERCLA"), 42 U.S.C. Section 9601 as amended by
the Superfund Amendments and Reauthorization Act of 1986 (Pub. L. 99-499, 100
Stat 1613 1986)("XXXX");
(B) The Resource Conservation and Recovery
Act, 42 U.S.C. Section 6901 et seq. ("RCPA");
(C) Toxic Substances Control Act, 15 U.S.C.
Section 2601 ("TSCA");
(D) The Clean Water Act, 33 U.S.C. Section
407, et seq. ("CWA");
(E) The Clean Air Act, 42 U.S.C. Section
7901, et seq. ("CAA");
(F) The New Jersey Industrial Site Recovery
Act, N.J.S.A. 13:1K-6, et seq. ("ISRA"); and
(G) Any similar statute, law, ordinance,
rule, regulation or order adopted in the jurisdiction in which the Leased
Premises is located at any time whether before or after the execution of this
Lease.
(iii) All alterations made in the Leased Premises by
Lessor, Lessee or any other tenant of the Leased Premises shall
12
be in accordance with and shall comply with all Environmental Laws and the
requirements of the Environmental Protection Agency ("EPA") and any state,
county, municipal or other agency having authority to enforce any Environmental
Law ("Enforcement Agency").
(iv) If any statues, laws, ordinances, rules or
regulations are promulgated at any time after the date of execution of this
Lease for the removal, abatement or containment of Hazardous Materials in the
Leased Premises or any portion of the Leased Premises and, in the reasonable
judgment of Lessor, it is hazardous for the Lessee to remain in the Leased
Premises during such removal, abatement or containment of the Hazardous
Materials, Lessee shall vacate the Leased Premises or that portion of the Leased
Premises that is hazardous and, provided that such condition did not result from
Lessee's acts, omissions or operations, the Base Rent shall be abated
proportionately for the period of time in which Lessee's use of such portion of
the Leased Premises has been interrupted.
(v) Lessee shall not intentionally or unintentionally
use, store, handle, spill, discharge or cause or permit any Release of any
Hazardous Materials at or in the vicinity of the Leased Premises, other than in
compliance with all Environmental Laws.
(vi) Lessee represents that its SIC number is ____.
At any time during the term of this Lease, Lessee shall supply to Lessor
affidavits of an officer of Lessee setting forth Lessee's SIC number and
describing in detail the operations and
13
processes undertaken by Lessee at the Leased Premises. Such affidavits shall
include a certification that no Hazardous Materials are generated, used, stored,
handled or disposed of at the Leased Premises or shall state the nature of any
such substance and the methods used in handling the same in reasonable detail,
including a demonstration (accompanied by reasonable documentary evidence, e.g.,
copies of any permits or licenses issued by any Enforcement Agency) that such
use and handling complies with Environmental Laws. Such affidavits shall be
delivered to Lessor within ten (10) days after request therefor.
(vii) Within ten (10) business days after request
therefor, Lessee shall provide all information requested from time to time by
Lessor, or by any Enforcement Agency for the preparation of notices, submissions
or affidavits (including, without limitation, Non-applicability Affidavit, de
Minimis Quantity Exemption Application, Limited Conveyance Application or
Administrative Consent Order). Within ten (10) days after request therefor,
Lessee shall execute and deliver any document reasonably required in order to
comply with any Environmental Law.
(viii) Each of Lessor and Lessee shall promptly
deliver to the other copies of all notices made by it to, or received by it,
from any Enforcement Agency or from the United States Occupational Safety and
Health Administration concerning environmental matters or Hazardous Materials at
the Leased Premises. Lessee shall notify Lessor in advance of all meetings
(including telephone conferences) scheduled between Lessee or
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Lessee's representative and any Enforcement Agency, and Lessor and Lessor's
representative shall have the right, without the obligation, to attend and
participate in all such meetings.
(ix) At any time throughout the term of this Lease
and any extension thereof, Lessor may during normal business hours cause an
inspection to be made of the Leased Premises and its surrounding area for the
purpose of determining whether any Hazardous Materials are present thereon or on
the surrounding area.
(x) Notwithstanding any provision hereof to the
contrary, Lessee shall, at Lessee's expense, comply with ISRA and all other
Environmental Laws; provided however, that Lessor shall be responsible for the
cost of any compliance caused by or arising out of or in connection with any
breach of Lessor's warranties and representations herein, Lessor's use and
occupancy of the Leased Premises (provided, however, that Lessee's use of the
same premises prior to the commencement of this Lease shall not be imputed to
Lessor), and any acts which are at Lessor's discretion required to be performed
by Lessee. Without limiting the generality of the foregoing, Lessee shall, at
Lessee's own expense, make all submissions to, provide all information to, and
comply with all requirements of, the New Jersey Department of Environmental
Protection ("DEP"), including any notifications and other filings required as a
result of any closing, terminating or transferring of operations of an
industrial establishment at the Leased Premises pursuant to ISRA, or any other
event requiring notification to the DEP pursuant to N.J.A.C. 7:26B-1.6 (or any
successor regulation),
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whether triggered by Lessor or Lessee (except as otherwise provided or limited
by this paragraph). Should the DEP or any Enforcement Agency determine that a
cleanup plan be prepared and that a cleanup be undertaken because of any spills
or discharges or other Release of Hazardous Materials at or from the Leased
Premises, or otherwise arising from Lessee's occupancy of the Leased Premises or
the conduct of its business, which occur during the term of this Lease, then
Lessee shall at Lessee's own expense, prepare and submit the required plans and
financial assurances, and carry out the approved plans. If the Leased Premises
are not an industrial establishment within the meaning of ISRA, then prior to
the termination of the Lease, Lessee shall, at its own expense, obtain and
provide to Lessor a letter of non-applicability or de minimis quantity exemption
from the DEP. Lessee shall provide Lessor with copies of all notifications,
cleanup plans, financial assurances and other submissions to the DEP or any
Enforcement Agency prior to submitting them and such submissions shall be
subject to Lessor's approval.
(xi) Lessee further covenants that, without Lessor's
prior written consent, Lessee shall not install or use any underground storage
tank on the Leased Premises if such installation or use would be subject to
regulation under the Underground Storage of Hazardous Substances Act (N.J.S.A.
58:10A-21 et seq.).
(xii) Lessee's obligations under this section shall
survive the expiration or earlier termination of this lease.
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In addition to any other remedies available to Lessor as a result of Lessee's
failure to abide by the terms of this section, Lessor shall be entitled to a
temporary or permanent injunction.
6. Destruction of Improvements.
If the improvements which constitute a portion of the Leased
Premises shall be damaged by fire or other casualty, then Lessee shall
immediately notify Lessor. Within 10 days of its receipt of such notice, Lessor
shall give a notice to Lessee ("Lessor's Damage Notice") stating whether, in
Lessor's reasonable opinion, such damage can be repaired from the insurance
proceeds alone within 180 days after receipt of all necessary permits for repair
of the damaged improvements (the "Repair Permits"). If Lessor's Damage Notice
states that such damage cannot be so substantially repaired from the insurance
proceeds within said 180 day period, then Lessee alone during the Initial Term
or any Renewal Term may terminate this Lease by written notice to the Lessor
within thirty (30) days of the date of Lessor's Damage Notice. If this Lease is
not terminated as provided herein, then: (i) Lessor shall diligently endeavor to
obtain the Repair Permits; and (ii) from the insurance proceeds paid to Lessor
under the insurance policies provided herein, then; (i) Lessor shall diligently
endeavor to obtain the Repair Permits; and (ii) from the insurance proceeds paid
to Lessor under the insurance policies provided herein to be carried by Lessee,
and, to the extent such insurance proceeds are not sufficient to complete such
repair and reconstruction, from additional funds supplied by Lessee (and not
17
by Lessor), Lessee shall diligently endeavor to substantially complete the
repair and reconstruction of the Leased Premises to substantially the same
condition existing immediately prior to such damage or destruction within 180
days after the later of receipt of the Repair Permits or receipt of such
insurance proceeds. If this Lease is not terminated by Lessee as provided
herein, then until the repair and reconstruction of the Leased Premises is
substantially complete, Lessee shall be required to pay the Base Rent and other
amounts payable by Lessee hereunder only for the portion of the Leased Premises
that is usable while such repairs and reconstruction are being made.
7. Condition of Premises and Repairs.
(a) Lessee shall not make any structural alterations to the
improvements constituting a portion of the Leased Premises without the prior
written consent of Lessor which consent shall not be unreasonably withheld,
conditioned or delayed. Lessee is authorized to make such changes and additions
which are not structural alterations provided Lessee first obtains Lessor's
consent, which consent shall not be unreasonably withheld, conditioned or
delayed. Such alterations, changes or additions as may be made by Lessee shall
be at Lessee's expense, shall be completed in a good and workmanlike manner,
shall be constructed in accordance with all applicable laws and building codes
and in a manner so as not to structurally impair the improvements comprising any
portion of the Leased Premises. All permanent improvements and
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fixtures (except trade fixtures) installed by Lessee shall become and remain the
property of Lessor, except as hereinafter provided.
(b) Lessee shall, at its own cost, keep and maintain the
Leased Premises (including but not limited to the landscaping, the parking area,
the roof and all heating, air-conditioning, plumbing, electrical and mechanical
system) in good order and repair during the term of this Lease; provided, that
Lessee shall not be responsible for such repairs which are the responsibility of
Lessor as provided in Section 7(c). Lessee shall maintain the Leased Premises at
its own expense in a clean, orderly and sanitary condition free of insects,
rodents, vermin and other pests and shall not permit undue accumulation of
garbage, trash, rubbage and other refuse, but shall remove the same at its own
expense, and shall keep such refuse in proper containers prepared for
collection. Lessee further covenants that Lessee will:
(i) promptly replace at its own expense with glass or
like, kind and quality any plate glass, door or window glass on or in the Leased
Premises which may become cracked or broken;
(ii) not cause or permit objectionable odors to
emanate or be dispelled from the Leased Premises;
(iii) keep the improvements which constitute a
portion of the Leased Premises at a temperature sufficiently high to prevent the
freezing of water and pipes and fixtures;
(iv) not burn any trash or garbage of any kind in or
about the Leased Premised;
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(v) keep the Leased Premises free of snow and ice and
maintain all landscaping and outdoor areas; and
(vi) comply with all laws and ordinances and all
rules and regulations of governmental authorities and all recommendations of the
Association of Fire Underwriters with respect to the use or occupancy of the
Leased Premises by Lessee; and supply, maintain, repair and replace for the
Leased Premises at the Lessee's own cost and expense, and fire extinguishers or
other fire prevention equipment and safety equipment required by the
aforementioned rules and regulations throughout the Initial Term and any Renewal
Term; provided, however, that Lessee shall not be required to make any repairs,
alterations or improvements to the Leased Premises or install or replace any
fire extinguishers or other fire prevention and safety equipment unless such
items are necessitated by Lessee's use of the Leased Premises.
(c) Lessor shall, at its own cost and expense, keep and
maintain in good order and repair all exterior and load-bearing walls and
building foundations, and shall make all necessary structural repairs to said
walls and foundations and Lessee shall, at its own cost and expense keep and
maintain in good order and repair all structural alterations made by Lessee in
accordance with Section 7(a), including but not limited to such repairs,
required by any governmental authority having jurisdiction, any order of a
court, or any insurance policy covering the Leased Premises. All requests for
repairs or maintenance that are the responsibility of Lessor pursuant to any
provision of this Lease must be in writing
20
to Lessor at the address set forth in Section 14. Notwithstanding the foregoing,
in no event shall Lessor be responsible to make any repair or replacement
necessitated by Lessee's negligence, which repair and replacement shall be
promptly made by Lessee at its sole cost and expense.
8. Utilities.
Lessee agrees to pay when due all proper charges for all
utility services furnished to the Leased Premises during the term hereof. Lessee
shall pay all utility bills directly to the appropriate utility companies.
Lessee shall arrange for all utilities supplied to the Leased Premises to be
billed directly to Lessee. Lessor, at its own cost, shall provide for all
utility services to be available to the Leased Premises.
9. Mechanics' and Other Liens.
No work performed by Lessee pursuant to this Lease, whether in
the nature of erection, construction, alteration or repair, shall be deemed to
be for the immediate use and benefit of Lessor so that no mechanics' or other
liens shall be allowed against the estate of Lessor by reason of any consent
given by Lessor to Lessee to improve the Leased Premises. Lessee shall place
such contractual provisions as Lessor may reasonably request in all contracts
and subcontracts for any work contracted by Lessee, assuring Lessor that no
mechanics' liens will be asserted against Lessor's interest in the Leased
Premises. If any mechanics or other liens shall at any time be filed against the
Leased Premises by reason of work, labor, services or materials performed
21
or furnished, or alleged to have been performed or furnished, to Lessee or to
anyone holding the Leased Premises through or under Lessee, and regardless of
whether any such lien is asserted against the interest of Lessor or Lessee,
Lessee shall within 30 days cause the same to be discharged of record, or bonded
to the reasonable satisfaction of Lessor. If Lessee shall fail to cause such
lien forthwith to be so discharged or bonded after being notified of the filing
thereof, then in addition to any other right or remedy of Lessor, Lessor may
bond or discharge the same by paying the amount claimed to be due, and the
amount so paid by Lessor, including reasonable attorneys' fees incurred by
Lessor either in defending against such lien or in procuring the bonding or
discharge of such lien, shall be due and payable by Lessee and Lessor as
additional rent hereunder.
10. Personal Property and Trade Fixtures.
Provided the Lessee is not then in default hereunder, upon the
expiration of the term of this Lease or earlier termination thereof for any
cause, Lessee shall have the right to remove from the Leased Premises any and
all of Lessee's personal property, including, but not limited to, all equipment
and any and all trade fixtures used in the conduct of business on the Leased
Premises theretofore placed thereon, whether or not such property be attached to
the Leased Premises. In the event Lessee removes any such equipment and/or trade
fixtures, Lessee agrees to repair any resulting damage to the Leased Premises.
22
11. Peaceful Possession and Use of Premises.
(a) Subject to the terms and provision hereof, Lessor agrees
that Lessee, having paid the rent and duly performed all of its obligations
contained herein, shall and may peaceably and quietly have, hold and enjoy the
Leased Premises during the full term of this Lease. During the term of this
Lease, Lessee may use the Leased Premises for any type of lawful business
operation. Lessee warrants and covenants, however, that no business will be
conducted on the Leased Premises which will violate any law or ordinance now or
hereafter in force or which will violate the provisions of any insurance policy
on the Leased Premises.
(b) Lessor, upon reasonable prior notice to Lessee, shall have
free access to the Leased Premises during normal business hours for the purpose
of making inspections or repairs or showing the Leased Premises to any
prospective buyer or tenant.
12. Default.
(a) Each of the following shall constitute an "Event of
Default":
(i) The Base Rent or any money payments due
hereunder, including but not limited to taxes, or any part thereof, shall remain
unpaid after the same becomes due for a period of ten (10) days after notice
from Lessor to Lessee; or
(ii) The entry of an order for relief by a court
having jurisdiction in a case under the Bankruptcy Code in which Lessee is a
debtor, or any other similar order is entered under applicable state law, if
such decree or order shall have remained
23
undischarged for a period of sixty (60) days; or a decree or order of court
shall have been entered for the appointment of a receiver or liquidator or a
trustee or assignee in bankruptcy or insolvency of the Lessee or its property or
for the winding up or liquidation of its affairs; or Lessee shall file a
petition under the Bankruptcy Code seeking an order for relief or shall make an
assignment for the benefit of Lessee's creditors or admit in writing Lessee's
inability to pay the debts of Lessee generally as they become due; or the sale
of Lessee's interest in the Leased Premises under attachment, execution or
similar legal process; or
(iii) Lessee shall fail to fulfill or perform, in
whole or in part, any of its non-monetary obligations under this Lease and such
failure or nonperformance shall continue for a period of thirty (30) days after
notice from Lessor to Lessee; provided that if Lessee commences to correct any
such failure or nonperformance within such thirty (30) day period and thereafter
diligently endeavors to correct same to completion, such thirty (30) day period
shall be automatically extended by the amount of time reasonably necessary to so
complete the correction.
(b) Upon the occurrence of any Event of Default, Lessor shall
have the right (in addition to all other rights and remedies at law and in
equity) to do any one or more of the following:
(i) Termination of Lease. Lessor may terminate this
Lease, by written notice to Lessee, without any right by Lessee to reinstate its
rights by payment of rent due or other performance of the terms and conditions
hereof. Upon such
24
termination, Lessee shall immediately surrender possession of the Leased
Premises to Lessor, and Lessor shall immediately become entitled to receive from
Lessee an amount equal to the aggregate of all Base Rent and other payments
which then remain due to Lessor but unpaid by Lessee.
(ii) Reletting. With or without terminating this
Lease, as Lessor may elect, Lessor may re-enter and repossess the Leased
Premises, or any part thereof, and lease them to any other person upon such
terms as Lessor shall deem reasonable, for term within or beyond the Term;
provided, that any such reletting prior to termination shall be for the account
of Lessee, and Lessee shall remain liable for (i) Base Rent and other sums which
would be payable under this Lease by Lessee in the absence of such expiration,
termination or repossession, less (ii) the net proceeds, if any, of any
reletting effected for the account of Lessee after deducting from such proceeds
all of Lessor's expenses, including reasonable attorneys' fees and expenses,
employees' expenses, alteration costs, expenses of preparation for such
reletting and all costs and expenses, direct or indirect, incurred as a result
of Lessee's breach of this Lease, other than expenses for which Lessor is
responsible hereunder. If the Leased Premises are, at the time of default,
sublet or leased by Lessee to others, Lessor may, as Lessee's agent, collect
rents due from any subtenant or other tenant and apply such rents to the Base
Rent and other amounts due hereunder without in any way affecting Lessee's
25
obligation to Lessor hereunder. Such agency, being given for security, is hereby
declared to be irrevocable.
(iii) Acceleration of Rent. Lessor may declare the
net present value (at the rate of 7% per year) of the Base Rent and all other
charges, payments, costs, and expenses payable by Lessee for the entire balance
of the then current Term immediately due and payable, as though such amounts
were payable in advance on the date the Event of Default occurred.
(iv) Removal of Contents by Lessor. With respect to
any portion of the Leased Premises which is vacant or which is physically
occupied by Lessee, Lessor may remove all persons and property therefrom, and
store such property in a public warehouse or elsewhere at the cost of and for
the account of Lessee, without service of notice or resort to legal process (all
of which Lessee expressly waives) and without being deemed guilty of trespass or
becoming liable for any loss or damage which may be occasioned thereby.
(v) Survival of Lessee's Obligations. No expiration
or termination of this Lease and no repossession of the Leased Premises or any
part thereof pursuant to this Section 12(b) of this Lease shall relieve Lessee
of its liabilities and obligations hereunder, all of which shall survive such
expiration, termination or repossession, and Lessor may, at its option, xxx for
and collect all Base Rent and other charges due hereunder at any time as when
such charges accrue.
26
(vi) Not Exclusive Right. No right or remedy herein
conferred upon or reserved to Lessor is intended to be exclusive of any other
right or remedy herein or by law provided, but each shall be cumulative and in
addition to every other right or remedy given herein or now or hereafter
existing at law or in equity or by statute.
(vii) Lessor shall use its good faith efforts to
relet the Leased Premises and mitigate damages arising from an Event of Default.
(viii) Expenses. In the event that Lessor commences
suit for the repossession of the Leased Premises, for the recovery of Base Rent
or any other amount due under the provisions of this Lease, or Lessor or Lessee
commences suit because of the breach of any covenant herein contained on the
part of the other to be kept or performed, and a breach shall be established, by
final court order or decree after exhaustion of all rights of appeal, or by
settlement agreement entered with such court, the breaching party shall pay to
the other all reasonable expenses incurred in connection therewith, including
reasonable attorneys' fees.
13. Condemnation.
(a) If the whole of the Leased Premises shall be taken by
condemnation or right of eminent domain, then the term of this Lease shall cease
as of the day possession shall be so taken as if such date were the date
originally fixed herein for termination of this Lease, and any unaccrued,
prepaid rent or other charges paid
27
by Lessee attributable to a period after such date shall be refunded to Lessee.
(b) If less than all but so much of the Leased Premises as to
render the balance unsuitable for use by Lessee for the purposes for which the
Leased Premises are being used by Lessee, as determined by Lessee in its
reasonable discretion, shall be taken by condemnation or right of eminent
domain, then the term of this Lease shall likewise cease as of the day
possession shall be so taken with the same consequences specified in Section
13(a).
(c) If only a portion of the Leased Premises shall be taken by
condemnation or right of eminent domain and this Lease is not terminated under
the provisions of Section 13(b), this Lease shall continue in effect
notwithstanding such taking in accordance with and subject to the other terms
and provisions hereof, in which even the Base Rent and other amounts payable by
Lessee for each month of the term of this Lease ensuing after the date of such
taking shall be reduced according to the nature, extent and effect of such
taking upon the operations of Lessee.
(d) All damages and amounts awarded for taking by condemnation
or right of eminent domain, whether for the whole or a part of the Leased
Premises, shall belong to and be the sole property of Lessor (whether such
damages or amounts shall be awarded as compensation for taking of or diminution
in value of the leasehold or the fee of the Leased Premises); provided, however,
that Lessee shall be entitled to receive and retain any amount which may be
specifically awarded to it in such proceedings for
28
business interruption and/or relocation costs or loss of its trade fixtures or
other personal property belonging to Lessee on the Leased Premises, provided,
further, that in the event Lessee is able and does recover in such condemnation
proceedings an award of damages to Lessee for the value of Lessee's leasehold
estate under this Lease over and above the full value of the land, building and
fixtures and all other improvements and property belonging to Lessor which may
be so taken (all of which is to be paid to Lessor) and without in any way
reducing the amount of the award which would have been recovered by Lessor if
this Lease were not in existence, then Lessee shall be entitled to receive and
retain such additional award of damages.
14. Notices and Demands.
Any and all notices or demands which shall be required or
permitted by law or any of the provisions of this Lease must be in writing to be
effective and, if the same are to be served upon Lessor, shall be either
personally delivered to Lessor or mailed by first class registered mail, postage
and fees prepaid and return receipt requested or by a nationally recognized
overnight courier service providing proof of delivery, addressed to Lessor at:
Xxxx Xxxxxxx
0000 Xxxxx Xxx Xxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
with a copy to its counsel:
XxXxxxxxxx, Keen & Xxxxxxx
Radnor Court, Suite 160
000 Xxxxxx-Xxxxxxx Xxxx
Xxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxx, Esquire
Fax No.: (000) 000-0000
29
or at such other address as Lessor may from time to time designate by notice in
writing to Lessee.
If such notices or demands are to be served on Lessee, such notices or
demands shall be delivered to Lessee by facsimile with a hard copy to be sent
out the same day by a nationally recognized overnight courier service providing
proof of delivery, addressed to Lessee at:
Ajax Manufacturing Company
000 Xxxxxx Xxxx
Xxxxxxxxxxxx Xxxxxxxx, XX 00000-0000
Attention: President & Secretary
Fax No. (000) 000-0000
with a copy to its counsel:
Xxxxxxxx Xxxxx Xxxxxxxx Xxxx & Ballon, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. XxXxxx, Esquire
Fax No.: (000) 000-0000
or at such other address as Lessee may from time to time designate by notice in
writing to Lessor.
Notices and demands shall be deemed given upon the actual date
and delivery, whether or not delivery is refused.
15. Subordination.
It is expressly stipulated and agreed that this Lease is and
shall be at all times subject and subordinate to the lien of any and all
Mortgages (as defined below) now or hereafter encumbering the Leased Premises
given to secure existing or future indebtedness of Lessor, and to all renewals,
modifications, replacements and extensions of such Mortgages, provided, however,
that the subordination herein contained shall not be effective with
30
respect to any future Mortgage unless the holder of such Mortgage ("Mortgagee")
shall execute and deliver a subordination, non-disturbance and attornment
agreement, in Mortgagee's customary form, providing that, in the event the
Mortgage shall be foreclosed or the Mortgage shall accept a deed in lieu thereof
(either of which event shall be a "Foreclosure"), then so long as Lessee shall
not then be in Default beyond any cure period provided herein and so long as
Lessee shall attorn to the Mortgagee or purchaser upon Foreclosure, (a) this
Lease shall not terminate, nor shall any of Lessee's rights hereunder (including
but not limited to Lessee's rights under Section 20 hereof) be abrogated,
reduced or otherwise adversely affected, by reason of such Foreclosure, (b)
Lessee's possession of the Leased Premises shall not be disturbed, and (c) the
Mortgagee or its successors or its assigns shall agree to perform the
obligations of Lessor which accrue subsequent to the passage of title thereto.
Lessee agrees, at any time, and from time to time, upon request of Lessor to
execute and deliver proper recordable agreements submitted by Lessor confirming
the foregoing subordination and non-disturbance agreement with respect to any
such Mortgage. As used in this section, the term "Mortgage" shall mean any
mortgage, deed to secure debt, deed of trust, trust deed, ground lease or other
collateral conveyance of, or lien or encumbrance against this Lease and/or the
Leased Premises.
16. Binding Effect: Assignment and Subletting.
This Lease shall inure to the benefit of and be binding upon
the parties hereto and their respective heirs, legal
31
representatives, successors and assigns. In this connection, however, it is
understood that Lessee does not have the right (without the advance written
consent of Lessor) to assign this Lease or sublease the Leased Premises, in
whole or in part, and any attempted assignment or sublease without such consent
of Lessor is and shall be prohibited and void; provided, that Lessor's consent
shall not be required respecting an assignment by Lessee to any entity
controlling, controlled by or under common control with Leasee. If Lessee
hereafter assigns or subleases its rights hereunder as permitted herein, Lessee
shall, nevertheless, be and remain fully responsible and liable for the full
performance of Lessee's obligations hereunder, including without limitation the
payment of all Base Rent and other sums payable hereunder. Consent by Lessor to
any assignment or sublease shall not waive the necessity for Lessor's consent to
any subsequent assignment or sublease.
17. Surrender on Expiration of Term and Holding Over.
(a) Lessee agrees that at the expiration of the term of this
Lease, or the earlier termination thereof, unless Lessee shall have purchased
the Leased Premises under Section 20, possession of the Leased Premises will be
surrendered to Lessor in good condition and repair, with all of Lessee's
personal property removed, ordinary wear and tear and damage by fire or other
casualty excepted.
(b) In case of holding over by Lessee after the termination of
this Lease, however such termination shall be
32
brought about, Lessee shall pay rent for each calendar month or portion thereof
after the termination of this Lease at 150% of the rate provided herein for the
month prior to such termination. No holding over by Lessee after the term of
this Lease, either with or without the acquiescence of Lessor, shall operate to
extend this Lease for a period or periods longer than from month to month.
18. Representations, Warranties and Covenants.
(a) Lessor has the right, power and authority to enter into
this Lease and to perform Lessor's obligations hereunder, and no joinder by any
other party and no approvals or consents of any other persons, entities or
governmental authorities are necessary or required in order for this Lease to be
valid and binding upon Lessor in accordance with its terms. Lessor further
represents, warrants and agrees that from the date hereof through the expiration
of the Purchase Option contained herein, Lessor shall not suffer or permit the
imposition of any lien or encumbrance on the Leased Premises without Lessee's
prior written consent other than a Mortgage (as defined in Section 15) or any
lien or encumbrance which may attach by reason of a breach by Lessee of any term
hereunder.
(b) Lessee represents, warrants and agrees that: (i) Lessee
has the right, power and authority to enter into this Lease and to perform
Lessee's obligations hereunder, and no joinder by any other party and no
approvals or consents of any other persons are necessary in order for this Lease
to be valid and binding upon Lessee in accordance with its terms; (ii) Lessee
shall, at
33
Lessee's sole cost and expense, comply with the lawful requirements of all
applicable governmental authorities having jurisdiction over the Lease Premises;
and (iii) Lessee shall, at its sole cost and expense, be responsible for
obtaining all necessary permits, licenses, use registration permits and zoning
approvals necessary for Lessee's use and operation of the Leased Premises.
19. Transfer of Lessor's Interest. In the event of any transfer of
Lessor's interest in the Leased Premises, the transferor shall be automatically
relieved of any and all obligations and liabilities on the part of the Lessor
accruing from and after the date of such transfer.
20. Option to Purchase. Provided that (i) this Lease is then in effect,
(ii) Lessee is not in default hereunder and (iii) the Maker of that certain
promissory note and security agreement delivered by Lessee (as Maker and Debtor)
to Lessor pursuant to Section __ of the Purchase Agreement, is not then in
default as to any monetary or nonmonetary obligations thereunder, Lessee may
elect to purchase the Leased Premises from Lessor during the Initial Term, upon
the following terms, covenants and conditions:
(a) Notice of Election to Purchase. If Lessee elects to
exercise its option to purchase the Leased Premises, Lessee shall so notify (a
"Purchase Notice") at least ninety (90) days prior to the last day of the
Initial Term. The Purchase Notice shall contain a settlement date, which date
shall be no later than ninety (90) days following the date of the Purchase
Notice (the "Closing Date"). Lessee's failure to deliver the Purchase Notice
within the
34
time period specified herein shall be deemed a relinquishment of Lessee's option
to purchase the Leased Premises.
(b) Purchase Price. The purchase price of the Leased Premises
shall be $6,500,000.00 and shall be payable in cash at Closing by wire transfer.
(c) Closing. Closing shall take place in accordance with this
Section 20 on the Closing Date at a time and place reasonably agreeable to the
parties. Time shall be of the essence. The Leased Premises shall be conveyed by
warranty deed. All documentary stamps, recording charges and/or transfer taxes
imposed by any governmental body shall be borne equally by Lessor and Lessee.
All title, survey and customary buyer's closing costs shall be borne by Lessee.
(d) Title. The Leased Premises shall be conveyed free and
clear of all liens, restrictions, encumbrances, and easements, except for
building and zoning ordinances, taxes not then due and payable, governmental
regulations affecting the Leased Premises, liens and encumbrances caused soley
by Lessee's use and occupancy of the Leased Premises and restrictions and
easements of record that are shown on the List of Permitted Exceptions attached
hereto as Exhibit "B" and that do not materially interfere with the use of the
Leased Premises in the manner in which the Leased Premises are then being used
by Lessee. Title to the Leased Premises shall be good, marketable and insurable
as such by a reputable title insurance company licensed to do business in the
State of New Jersey at Lessee's expense. If Lessor is unable to give good and
35
marketable title on the Closing Date as required in this Section 20, Lessee may
elect to terminate its commitment to purchase the Leased Premises (provided
Lessee has given Lessor notice of all title objections on or before the date
which is thirty (30) days after the date of the Purchase Notice), or may
purchase the Leased Premises with such title as Lessor is able to give with no
reduction in the purchase price, unless Lessor's inability to give title as
required in this Section 20(d) is due to liens or other title objections
reasonably ascertainable in amount. In this event, Lessee shall have the option
of taking such defective title with a deduction from the purchase price equal to
the cost of satisfying said liens or other objections. In the event that Lessee
elects to terminate its commitment to purchase the Leased Premises as the result
of Lessor's inability to convey title in accordance with this Section 20(d),
neither party shall have any further liability or obligation to the other under
this Section 20. From and after the date of Lessee's Purchase Notice, Lessor
shall not further encumber or impair title to the Leased Premises.
(e) Condition of Property. In the event all or a portion of
the Leased Premises shall be damaged by fire or other casualty or all or a
portion of the Leased Premises shall be condemned after the date of Lessee's
Purchase Notice Lessee may, within thirty (30) days after receipt of notice
thereof and by notice to Lessor, either revoke its Purchase Notice or proceed to
purchase the Leased Premises with no reduction in the purchase price, in which
latter event all casualty insurance proceeds and
36
claims thereto and any condemnation awards shall be paid and/or assigned to
Lessee at closing.
(f) Termination of Lease Agreement. Upon the completion of the
purchase and sale of the Leased Premises in accordance with this Section 20,
this Lease shall terminate.
(g) Recording of Lease Agreement. Lessee may record a notice
or memorandum of this Lease in the appropriate recording office in the County of
Somerset, New Jersey.
21. General.
(a) This Lease is to be governed by the laws of the State of
New Jersey. No waiver by either party of its rights to enforce any provision
hereof after any default on the part of the other party shall be deemed a waiver
of its rights to enforce each and all of the provisions hereof upon any further
or other defaults on the part of such other party.
(b) This Lease and the covenants and agreements set forth
herein and therein are and shall constitute the entire agreement between the
parties with respect to the subject matter hereof. Each party to this Lease
hereby acknowledges and agrees that the other party has made no warranties,
representations, covenants or agreements, express or implied, to such party
other than those expressly set forth herein and that each party, in entering
into and executing this Lease, has relied upon no warranties, representations,
covenants and agreements other than those expressly set forth herein.
37
(c) The captions of the various paragraphs of this Lease are
inserted only as a matter of convenience and for reference and in no way define,
limit or describe the scope or intent of this Lease nor in any way affect this
Lease.
(d) In the event any covenant, condition or provision herein
contained is held to be invalid or unenforceable in whole or in part or as to
any person or circumstance by final judgment of any court of competent
jurisdiction, the extent of such invalidity or unenforceability shall not in any
way affect the balance of such covenant, condition or provision, the application
of such covenant, condition or provision to persons or circumstances as to which
it is not invalid or unenforceable, or any other covenants, conditions or
provisions herein contained.
(e) Each of the parties represents and warrants that there are
no rights or claims for brokerage commissions or finder's fees in connection
with the execution of this Lease (including any purchase of the Leased Premises
by Lessee), and each of the parties agrees to indemnify the other against, and
hold the other harmless from, all liabilities arising from any such rights or
claims asserted through it, such obligation to survive the termination of this
Lease and/or any such purchase.
(f) This Lease may not be altered, waived, amended or extend
except by an instrument in writing signed by Lessor and Lessee.
38
(g) The time for the performance of all of the covenants,
conditions and agreements of this Lease is of the essence of this Lease.
(h) Neither party shall be required to perform any covenant or
obligation in this Lease, or be liable in damages to the other, so long as the
performance or nonperformance of the covenant or obligation is delayed, caused
or prevented by force majeure (as hereinafter defined). "Force majeure" is
defined for purposes of this Section as strikes, lock-outs, sit downs, material
or labor restrictions or any delay caused by any governmental authority, unusual
transportation delays, riots, floods, wash-outs, explosions, earthquakes, fire
storms, weather (including wet ground or inclement weather which prevents
construction) acts of the public enemy, war, insurrection, and/or any other
cause not reasonably within the control of such party.
(i) If Lessor shall fail to perform any covenant, term or
condition of this Lease upon Lessor's part to perform and, as the consequences
such default, Lessee shall recover a money judgment against Lessor, such
judgment shall be satisfied only out of the right, title and interest of Lessor
in the Leased Premises or out of rents or other income from the Leased Premises
receivable by Lessor or out of the consideration received by Lessor from the
sale or other disposition of all or any part of the Lessor's right, title and
interest in the Leased Premises, and Lessor shall not be personally liable for
any deficiency. The covenants in this Lease shall run with the Leased Premises
and all personal liability of
39
the present Lessor shall cease in the event of sale or transfer of his interest.
(j) Accord and Satisfaction. No payment by Lessee or receipt
by Lessor of a lesser amount than the rents herein stipulated shall be deemed to
be other than on account of the earliest stipulated rent, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment as rent be deemed an accord and satisfaction and Lessor may accept such
check or payment without prejudice to Lessor's right to recover the balance of
such rent or pursue any other remedy in this Lease provided.
22. Disposal of Lessee's Property. Notwithstanding any agreement,
understanding or acknowledgment contained in this Lease or in any other document
to the contrary, including a certain management letter delivered by Lessee to
BDO Xxxxxxx & Co. ("BDO"), dated June 3, 1997, as updated by letter from Lessee
to BDO dated August __, 1997, Lessee shall be and remain solely responsible for
the disposal of any of its property.
IN WITNESS WHEREOF, this instrument is executed in duplicate originals
as of the ______ day of _____________, 1997.
AJAX MANUFACTURING COMPANY
By: ________________________
Name
Title
______________________________
XXXX XXXXXXX
40
Guaranty
For good and value consideration, the receipt of which is acknowledged
by the undersigned, and intending to be legally bound hereby, the undersigned
agrees under seal that payment of any amounts due and owing hereunder by Lessee
shall be guaranteed by the undersigned in the event that Lessee fails to pay any
such amount when due under the terms of this Lease.
STANDARD AUTOMOTIVE CORPORATION
BY: ____________________________
Name
Title
41
EXHIBIT "A"
Description of Leased Premises
[MUST BE SUPPLIED PRIOR TO CLOSING]
42
EXHIBIT "B"
Permitted Exceptions
[MUST BE SUPPLIED PRIOR TO CLOSING]
43
