EXHIBIT 10.4
LEASE AGREEMENT
---------------
THIS LEASE AGREEMENT ("Lease") is entered into this 30th day of December,
1994, by and between Mecon MFG, a Maine corporation ("Lessor") and CONTROL
DEVICES, INC., an Indiana corporation ("Lessee").
RECITAL:
Lessor is the owner of a manufacturing facility consisting of approximately
33,000 square feet of space in the building of Lessor, situated in Caribou,
Maine, the legal description of which is attached hereto as Exhibit A (the
"Premises"). Lessor desires to lease the Premises to Lessee, and Lessee desires
to lease the Premises from Lessor, on the terms set forth in this Lease.
NOW, THEREFORE, in consideration of these premises and the mutual
agreements and covenants set forth in this lease and for the good and valuable
consideration, Lessor and Lessee agree as follows:
Section 1. Grant. Lessor hereby demises and leases all of the Premises to
---------- ------
Lessee for the term of this Lease.
Section 2. Term. The term of this Lease shall commence on January 1, 1995
---------- -----
and continue in effect until terminated in accordance with Section 9 of this
---------
Lease.
Section 3. Lease Payments; Late Fees. On or before September 1, 1995,
---------- ---------------------------
and the first day of each subsequent calendar month until this Lease is
terminated in accordance with Section 9 of this Lease, Lessee shall pay to
---------
Lessor a monthly lease payment of $10,000 per month. No payment shall be due
under the terms of this Lease prior to September 1, 1995. In the event Lessee
does not make any lease payment within fifteen days after written notice from
the Lessor, Lessee shall pay to Lessor a late fee equal to five percent of the
past due amount. All lease payments shall be mailed to Lessor's address set
forth in Section 10 of this Lease of such writing.
----------
Section 4. Maintenance. During the term of this Lease, Lessee shall be
---------- ------------
responsible for, and bear the expense of, maintaining the Premises in reasonable
condition and repair, normal wear and tear expected. Notwithstanding the above,
in the event that all or part of the Premises are destroyed, damaged or
impaired, the Lessee shall have no obligation to repair or rebuild the Premises
provided the Lessee agrees to pay to Lessor an amount equal to the decrease in
the fair market value of the Premises resulting from the destruction, damage or
impairment to the premises.
Section 5. Utilities. Lessee shall pay all costs and expenses for any and
---------- ----------
all utilities used upon the Premises during the term of this Lease.
Section 6. Taxes. Lessee shall pay all real estate taxes on the premises
---------- ------
which initially become due and payable during the term of this Lease, but such
taxes will be prorated for any period occurring before this Lease commences or
after this Lease ends.
Section 7. Insurance. During the term of this Lease, Lessee shall
---------- ----------
maintain at the Lessee's own expense the following insurance:
(a) Comprehensive liability insurance in an amount not less than
$1,000,000.
(b) Fire insurance with standard extended coverage to the extent of not
less than 80% of the replacement value of the Premises.
Section 8. Alterations. During the term of this Lease, Lessee shall have
---------- ------------
the right to make alterations, additions and improvements to the Premises at its
own expense so long as such alterations, additions and improvements to the
Premises do not have a material adverse effect on the value of the Premises.
Section 9. Termination. This Lease shall be terminated (a) upon the
---------- ------------
written agreement of Lessor and Lessee, or (b) by either party by giving at
least one year prior written notice to the other party specifying the date of
such termination, which termination may in no event be prior to December 31,
1997 or (c) the destruction of, damage or impairment to, the Premises if Lessee
elects not to repair the Premises but pays to Lessor the amount of the decrease
in the fair market value of the Premises as provided by Section 4 of this Lease.
---------
Following the termination of this Lease, Lessee shall have the right to remove
all of the property and equipment, including any property, equipment and trade
fixtures acquired or installed by Lessee with which have become affixed to the
Premises.
Section 10. Notices. All notices, requests, consents and other
----------- --------
communications hereunder shall be in writing and may be delivered personally
(including by courier) or by first class registered or certified mail, postage
prepaid, addressed to the following address or to other such addresses as may be
furnished in writing by one party to the other.
If to Lessee: If to Lessor:
Mecon Mfg. Control Devices, Inc.
Attn: Frank S. Kostis, Director Attn: Bruce D. Atkinson, President
238 River Street 228 Northeast Rd.
Springvale, ME 04083 Standish, ME 04084
with copy to:
Titcomb Marass Flaherty & Knight Hammond, Kennedy, Whitney & Company,
Attn: Len Knight Inc.
P.O. Box 311 Attn: Glenn Scolnik
Sanford, ME 04073 8800 Keystone Crossing, Suite 1048
Indianapolis, IN 46240
Section 11. Governing Law. This Lease will be governed by, and construed
----------- --------------
in accordance with, the laws of the State of Maine, without regard to such
jurisdiction's conflicts of laws principles.
Section 12. Entire Agreement. This Lease constitutes the entire agreement
----------- -----------------
of the parties hereto with respect to the matters contemplated hereby and
supersedes all previous written or oral negotiations, commitments,
representations and agreements.
Section 13. Assignment; Successors and Assigns. This Lease may be
----------- ------------------------------------
assigned by Lessee or Lessor without the prior written consent of the other
party. All covenants, representations, warranties and agreements of the
parties contained herein shall be binding upon and inure to the benefit of their
respective successors and assigns.
Section 14. Execution in Counterpart. This Lease may be executed in one
----------- -------------------------
or more counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
day and year first written above.
"LESSEE" "LESSOR"
MECON MFG. CONTROL DEVICES, INC.
By: /s/ Frank S. Kostis By: /s/ Bruce D. Atkinson
------------------------------- ------------------------------
Frank S. Kostis, Director Bruce D. Atkinson, President
------------------------------- ------------------------------
Printed Name and Title Printed Name and Title
NOTICE OF LEASE
THIS NOTICE OF LEASE is made this 30th day of December, 1994, for the
purpose of making a public record of the following described Lease Agreement.
DATE OF LEASE: December 30, 1994
NAME OF LESSOR: MECON MFG., having a mailing address of
NAME OF LESSEE: CONTROL DEVICES, INC., having a mailing address of 228
Northeast Rd., Standish, Maine.
DESCRIPTION OF
DEMISED PREMISES: Approximately thirty three thousand (33,000) square feet of
space in the building of Lessee, situated in Caribou, Maine,
the legal description of which is attached hereto as Exhibit
A (the "Premises").
TERM OF LEASE: The original term of the Lease shall commence on January 1,
1995 and shall continue until terminated in accordance with
Section 9 of the Lease. Section 9 of the Lease provides that
the Lease shall (a) upon the written agreement of Lessor or
Lessee, or (b) terminated by either party by giving at least
one year prior written notice to the other party the date of
such termination which termination may in no event be prior
to December 31, 1997, or (c) the destruction of, or damage or
impairment to, the Premises if the Lessee elects not to
repair the Premises but pays to Lessor the amount of the
decrease in the fair market value of the Premises as provided
in Section 4 of the Lease.
RENEWAL OR
EXTENSION TERMS: None.
THIS NOTICE OF LEASE is prepared for recording and for the purpose of making
a public record of the Lease, and it is intended that the parties shall be
subject to all of the provisions of the Lease and that nothing herein shall be
construed or deemed to alter or change any of the terms and provisions of the
Lease.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Notice of Lease as of
the day and year above written.
WITNESSETH: MECON MFG.
/s/ Frank S. Kostis
- ------------------------------------ ------------------------------------
By: Frank S. Kostis
------------------------------
Its: Director
------------------------------
CONTROL DEVICES, INC
- ------------------------------------
/s/ Bruce D. Atkinson
-----------------------------------
By:
--------------------------------
Its: President
--------------------------------
STATE OF MAINE )
) SS:
COUNTY OF CUMBERLAND )
December 30, 1994
The personally appeared the above-named Frank S. Kostis, of MECON
MFG., and acknowledged the foregoing to be his free act and deed of said Mecon
Mfg.
/s/ Beverly A. Miner
------------------------------------------
Before me, Notary Public
Beverly A. Miner Printed Name: Beverly A. Miner
Notary Public, State of Indiana My Commission Expires:
My Commission Expires Sept. 02, 2001
STATE OF MAINE )
) SS:
COUNTY OF CUMBERLAND )
December 30, 1994
The personally appeared the above-named Bruce D. Atkinson of CONTROL
DEVICES, INC., and acknowledge the foregoing to be his free act and deed of
said Control Devices, Inc.
/s/ Beverly A. Miner
-------------------------------------------
Before me, Notary Public
Beverly A. Miner Printed Name: Beverly A. Miner
Notary Public, State of Indiana My Commission Expires:
My Commission Expires Sept. 02, 2001
RECOGNITION AGREEMENT
---------------------
This agreement is made this 30th day of December, 1994 by and between
Control Devices, Inc., having its principal place of business in Standish, Maine
(hereinafter called "Tenant") and Mecon, hereafter called ("Mortgagee").
W I T N E S S E T H
WHEREAS, Mortgagee is the holder of a mortgage (the "Mortgage") on
property owned by Mecon Mfg. ("Landlord") situated at __________________,
___________________, Maine (the "Mortgaged Premises"), said mortgage being
--------- --------
dated ______ and recorded in the ___ County Registry of Deeds in Book ___,
Page ___; and
WHEREAS, the Tenant is about to enter into a lease agreement (the
"Lease") with Landlord pursuant to which Tenant will lease and occupy certain
premises (the "Demised Premises") which constitute a part of the Mortgaged
Premises; and
WHEREAS, Tenant wishes to be assured of continued peaceful occupancy
of the Demised Premises under the terms of the Lease and subject to the terms of
the Mortgagee as landlord under the Lease in the event of foreclosure of the
Mortgage,
NOW, THEREFORE, in consideration of the premises and of the sum of One
Dollar ($1.00) by each party in hand paid to the other, the receipt of which is
hereby acknowledged, it is hereby agreed as follows:
1. Mortgagee agrees that it will not name Tenant in any foreclosure
action involving the Mortgaged Premises, and in the event of a foreclosure,
foreclosure sale, deed in lieu of claiming by, through or under Mortgagee,
under the Mortgage, neither the Lease, nor the rights of Tenant under the Lease,
nor the rights of any subtenant or other party claiming under Tenant, shall be
disturbed but shall continue in full force and effect, subject, however, to the
provisions of the Lease concerning Tenant's default.
2. In the event that Mortgagee shall succeed to the interest of
Landlord in the Lease through foreclosure or otherwise, Tenant will attorn to
and recognize Mortgagee, its Mortgagee shall accept such attornment.
3. In the event Mortgagee shall, in accordance with the foregoing,
succeed to the interest of Landlord under the Lease, Mortgagee agrees, during
such time as it shall own the Mortgaged Premises or Landlord's interest in the
Lease, to be bound to Tenant under all of the terms, covenants and conditions of
the Lease, and Tenant shall, from and after such event, have the same remedies
against Mortgagee for the breach of any agreement contained in the Lease that
Tenant might have had under the Lease against Landlord if Mortgagee had not
succeeded to the interest of Landlord; provided, however, that the Mortgagee
--------
shall not be:
(a) liable for any act of omission of any prior or subsequent landlord
(including Landlord); or
(b) bound by any rent or additional rent which Tenant might have paid
for more than the current month to any prior landlord (including Landlord); or
(c) bound by any material amendment or modification of the Lease made
without its written consent.
4. Except as otherwise provided herein, neither the rights of Tenant
under the Lease, nor the rights of any subtenant or other party claiming under
Tenant, shall be diminished or affected hereby.
5. This Agreement shall be binding upon and inure to the benefit of
Mortgagee and Tenant and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have duly caused these presents
to be executed as of the day and year first above mentioned.
WITNESSETH: CONTROL DEVICES, INC.
- ------------------------------------ By: /s/ Bruce D. Atkinson
-------------------------------
Its: President
-------------------------------
Printed Name: Bruce D. Atkinson
-----------------------
"Tenant"
- ------------------------------------
By: /s/ Frank S. Kostis
-------------------------------
Its: Director
-------------------------------
Printed Name: Frank S. Kostis
-----------------------
"Mortgagee"
STATE OF MAINE )
) SS:
COUNTY OF CUMBERLAND ) December 30, 1994
-----------------
The personally appeared the above-named Bruce D. Atkinson of said Control
Devices, Inc. and acknowledged the foregoing to be his free act and deed and
the free act and deed of said Control Devices, Inc.
/s/ Beverly A. Miner
--------------------
Before me, Notary Public
Beverly A. Miner Printed Name: Beverly A. Miner
Notary Public, State of Indiana My Commission Expires:
My Commission Expires Sept. 02, 2001
STATE OF MAINE )
) SS:
COUNTY OF CUMBERLAND ) December 30, 1994
-----------------
The personally appeared the above-named Frank S. Kostis of said
__________________, and in his said capacity, and the free act and deed of said
corporation.
/s/ Beverly A. Miner
-----------------------
Before me, Notary Public
Beverly A. Miner Printed Name: Beverly A. Miner
Notary Public, State of Indiana My Commission Expires:
My Commission Expires Sept. 02, 2001