EXHIBIT 10.14
LEASE AGREEMENT
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THIS LEASE AGREEMENT ("Lease"), made at Cleveland, Ohio as of the 2nd day
of July, 1996, by and between FIGGIE PROPERTIES, INC., a Delaware corporation
("Landlord"), and COMMUNICATIONS INSTRUMENTS, INC. dba HARTMAN DIVISION OF CII
TECHNOLOGIES, INC., a North Carolina corporation ("Tenant").
W I T N E S S E T H:
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ARTICLE 1
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DEMISED PREMISES
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Landlord hereby leases and lets to Tenant, and Tenant hereby takes and
hires from Landlord upon and subject to the terms, conditions, covenants and
provisions hereof, the building containing approximately 53,092 square feet of
floor space located at the northeast corner of North Main Street and Fifth
Street situated in the City of Mansfield, County of Richland and State of Ohio,
together with approximately 2.5 acres of land, and more particularly described
on Exhibit "A" annexed hereto and made a part hereof, together with any and all
improvements, appurtenances, rights, privileges and easements benefiting,
belonging or pertaining thereto, and any right, title and interest of Landlord
in and to: (i) any public park or the like adjoining said tract, piece or
parcel of land; (ii) any land lying in the bed of any street, road or highway
(open, proposed, vacated or abandoned), in front of, beside or adjoining said
tract, piece or parcel of land; and (iii) the fixtures and items of personal
property listed on Exhibit "B" annexed hereto and made a part hereof which are
part of the real estate and will remain as the property of Landlord upon the
termination of this Lease; subject to easements, conditions, reservations,
restrictions and other matters of record listed on Exhibit "C" annexed hereto
and made a part hereof (the "Approved Title Exceptions") (all of the foregoing
being hereinafter referred to as the "Demised Premises").
ARTICLE 2
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TERM
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2.1. The term of this Lease shall commence on July 2, 1996
("Commencement Date") and shall continue through June 30, 2006 unless sooner
terminated as herein provided (the "Term").
2.2. The term "Lease Year" as used herein shall mean for (i) the first
Lease Year, the period from July 2, 1996 to June 30, 2006 and (ii) for any
subsequent Lease Year, the one (1) year period commencing on the date following
the expiration of the preceding Lease Year and ending on the anniversary of the
last day of the preceding Lease Year.
ARTICLE 3
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RENT
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3.1. During the Term Tenant shall pay Base Annual Rent to Landlord
without previous notice or demand which shall be payable in equal monthly
installments. Each installment shall be due and payable in advance on the first
(1st) day of each month during the Term.
3.2. There shall be no Base Annual Rent for the first Lease Year.
3.3. The Base Annual Rent for each of the Lease Years two through five
shall be in the amount of One Hundred Six Thousand One Hundred Eighty-four
Dollars ($106,184.00) and shall be due and payable in equal monthly installments
of Eight Thousand Eight Hundred Forty-eight Dollars and Sixty-six Cents
($8,848.66) each.
3.4. The Base Annual Rent for each of the Lease Years six through ten
shall be in the amount of One Hundred Fifty-nine Thousand Two Hundred Seventy-
six Dollars ($159,276.00) and shall be due and payable in equal monthly
installments of Thirteen Thousand Two Hundred Seventy-three Dollars ($13,273.00)
each.
3.5. All Base Annual Rent payable hereunder shall be paid without notice,
demand, counterclaim, offset, reduction or abatement and shall be payable at
Landlord's address as set forth in Article 25 hereof or at such other address as
Landlord may designate. The parties specifically agree that this Lease is a
"triple net lease", so that except as may be otherwise specifically provided
herein, all costs, expenses and obligations of every kind and nature whatsoever
relating to the Demised Premises, including without limitation, all repair,
replacement, maintenance, taxes, utilities and insurance, shall be paid by
Tenant, without any cost or expense to Landlord, in addition to the Base Annual
Rent.
ARTICLE 4
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SECURITY DEPOSIT
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As security for the full and faithful performance of Tenant hereunder,
Tenant shall deposit with Landlord, upon the execution hereof the sum of
$40,000. Landlord shall have the right, but not the obligation, to use all or
any part of such deposit to satisfy any default by Tenant hereunder, and in the
event Landlord uses such deposit as aforesaid, Tenant agrees to deliver to
Landlord, on demand, an amount equal to the amount so expended by Landlord plus
such additional amount (if any) as may be necessary to restore such deposit to
its full amount. Tenant shall not be entitled to any interest on the security
deposit. Upon the termination of the Term of this Lease (other than by reason of
default of Tenant not timely cured) the amount of such deposit remaining shall
be returned to the Tenant. In the event of termination of this Lease by reason
of default by Tenant, not timely cured, Landlord may apply the security deposit
to any damages which Landlord may be entitled pursuant to law and/or the terms
of this Lease.
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ARTICLE 5
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USE OF DEMISED PREMISES
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5.1. Tenant shall use and occupy the Demised Premises for manufacturing,
merchandising and warehousing activities as well as for offices incidental
thereto and for no other purpose. Landlord represents that the Demised Premises
can be used as of the Commencement Date for substantially the same purposes for
which the Demised Premises are now being used by Hartman Electrical
Manufacturing Co. ("Hartman").
5.2. Tenant shall not do or suffer to occur upon the Demised Premises any
act or omission which violates the provision of any easement, condition,
limitation, deed or other restriction of record affecting the Demised Premises
affecting the Demised Premises.
ARTICLE 6
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TAXES AND UTILITY EXPENSES
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6.1. (a) Except as provided in 6.1(b), Tenant shall, during the Term of
this Lease, as additional rent, pay and discharge punctually as and when
the same shall become due and payable, any and all special and general
taxes, special and general assessments, and any and all other governmental
impositions and charges of every kind and nature whatsoever, extraordinary
as well as ordinary, including taxes on the rental hereunder ("Taxes"), and
each and every installment thereof which shall or may during the Term of
this Lease be charged, levied, laid, assessed, imposed, become due and
payable, or liens upon or for or with respect to the Demised Premises or
any part hereof, or any buildings, appurtenances, personal property or
equipment thereon or therein or any part thereof, together with all
interest and penalties thereon, under or by virtue of all present or future
laws, ordinances, requirements, orders, directives, rules or regulations of
the Federal, State, County and City Governments and of all other
governmental authorities whatsoever and all sewer rents and charges for
water, steam, heat, gas, hot water, electricity, light and power, and any
and all other service or services, furnished to the Demised Premises during
the Term of this Lease ("Utility Expenses"). All Utility Expenses being
charged to Landlord shall be transferred to Tenant on the Commencement Date
and Landlord will cooperate with Tenant to effect same.
(b) Tenant shall pay, in advance, to Landlord, each month as
additional rent, a portion of the Taxes which amount shall be determined by
the following formula:
Monthly payment = 1.1 X (Most current annual real estate tax
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bill)
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12
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For example, if the most current annual tax bill was $1,000.00, the monthly
real estate tax payment would be (1.1 X $1,000.00) divided by 12, which
equals monthly real estate payments of $91.70. To the extent funds have
been received by Landlord from Tenant for Taxes, the Landlord shall cause
the semi-annual tax payments to be paid. The amount paid by Tenant will be
credited against the actual amount of the real estate taxes paid upon
receipt by Landlord of the annual real estate tax bill. If the amount of
the actual tax bill exceeds the amount paid by Tenant, Tenant shall
immediately upon demand by Landlord, pay to Landlord an amount equal to the
difference between the actual tax bill and the amount paid by Tenant. If
the amount paid by Tenant exceeds the amount of the actual tax bill, the
amount of the overpayment paid by Tenant to Landlord will be credited
against the next monthly real estate tax payment due from Tenant.
(c) To the extent that the same may be permitted by law, Tenant
shall have the right to apply for the conversion of any assessment for
local improvements assessed during the Term of this Lease in order to cause
the same to be payable in lawful installments, and upon such conversion
Tenant shall punctually pay and discharge said installments as they shall
become due and payable during the Term of this Lease. Landlord agrees to
permit the application for the foregoing conversion to be filed in
Landlord' name, if necessary, and, without cost to Landlord, Landlord shall
execute any and all documents reasonably requested by Tenant to accomplish
the foregoing result.
(d) Landlord shall pay the Taxes levied or assessed, laid and
imposed payable for the second half of 1995 as and when the same are due
and payable and Tenant shall pay any and all Taxes due and payable
thereafter.
(e) Tenant shall be deemed to have complied with the covenants of
this Article if payment of such Taxes shall have been made either within
any period allowed by law or by the governmental authority imposing the
same during which payment is permitted without penalty or interest or
before the same shall become a lien upon the Demised Premises, whichever is
later, and Tenant shall produce and exhibit to Landlord evidence of such
payment, if Landlord shall demand the same in writing, and Tenant shall
defend, indemnify and hold harmless Landlord from and against any and all
Taxes, penalties and/or interest.
6.2. All Taxes, including assessments which have been converted into
installments as set forth in the preceding paragraph 6.1, which shall become
payable during each of the calendar or fiscal tax years, as the case may be, in
which the Term of this Lease terminates, shall be apportioned pro rata between
Landlord and Tenant in accordance with the respective portions of such year
during which the Term hereof shall terminate so that, for example, if the Lease
terminates on June 30, 2006 then Tenant shall bear the Taxes payable for the
last half of 2005 and the first half of 2006 and upon said termination, Tenant
shall be entitled to a credit and Landlord shall be charged an amount equal to
the amount of real estate taxes and assessments, both general and special, paid
by Tenant for the first half of 1996.
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6.3. (a) Tenant shall have the right to contest or review all Taxes by
legal proceedings, or in such other manner as it may deem suitable (which,
if instituted, Tenant shall conduct promptly at its own cost and expense,
and free of any expense to Landlord, and, if necessary, in the name of and
with the cooperation of Landlord; and Landlord shall execute all documents
necessary to accomplish the foregoing). Notwithstanding the foregoing,
Tenant shall promptly pay all Taxes if at any time the Demised Premises or
any part thereof shall then be immediately subject to forfeiture, or if
Landlord shall be subject to any criminal penalty or liability, arising out
of the nonpayment thereof.
(b) The legal proceedings referred to in the preceding subparagraph
6.3(a) shall include appropriate administrative and court proceedings and
appeals from orders therein and appeals from any judgments, decrees or
orders. In the event of any reduction, cancellation or discharge, Tenant
shall pay the amount finally levied or assessed against the Demised
Premises or adjudicated to be due and payable on any such contested Taxes.
6.4. Landlord covenants and agrees that if there shall be any refunds or
rebates on account of the Taxes paid by Tenant under the provisions of this
Lease, such refund or rebate shall belong to Tenant. Any such refunds received
by Landlord shall be deemed trust funds and as such are to be received by
Landlord in trust and paid to Tenant forthwith. If there shall be any refunds
or rebates on account of the Taxes paid by Landlord under paragraph 6.1(c) of
this Lease, or otherwise, such refund or rebate shall belong to Landlord and any
such refunds received by Tenant shall be deemed trust funds and as such are to
be received by Tenant in trust and paid to Landlord forthwith.
6.5. Nothing herein or in this Lease otherwise contained shall be
construed to require Tenant to pay any inheritance, estate, succession,
transfer, gift, franchise, income, sales, profit or other taxes that are or may
be imposed upon Landlord, its successors or assigns, provided that if and to the
extent any such taxes shall be imposed upon Tenant in reduction of or in
substitution for any other taxes payable by Tenant under this Lease, Tenant
shall also pay such substituted taxes as herein provided.
ARTICLE 7
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OPTION TO PURCHASE
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7.1. Provided Tenant is not in default of performance under this Lease
beyond any applicable grace period, if any, at the time when Tenant elects to
exercise the option to purchase the Demised Premises, herein granted, Tenant
shall have the exclusive right, privilege and option to purchase ("option") the
Demised Premises at the purchase price and during those parts of the Term herein
set forth.
7.2. The option shall be exercisable at any time during the Term, but in
any event no later than 90 days prior to the expiration of the Term hereof. The
option shall be exercisable only by written notice from Tenant, to be delivered
personally, or by certified or registered mail,
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to Landlord. If delivery is by certified mail, the option shall be deemed to
have been timely exercised if the notice thereof is posted no later than
midnight of the last day on which the option is exercisable. If the last day of
the option period shall fall on a Saturday, Sunday, or legal holiday, then the
option period shall be extended to the next day which is not a Saturday, Sunday
or legal holiday.
7.3. The purchase price ("Purchase Price") for the Demised Premises shall
be the sum of Five Hundred Thousand Dollars ($500,000.00) if the option is
exercised prior to the end of the third Lease Year. If the option is exercised
after the end of the third Lease Year, the Purchase Price shall be the Fair
Market Value of the Demised Premises, determined by appraisal, as hereinafter
provided.
7.4. In the event the option is appropriately and timely exercised, all
documents pertaining to the purchase of the Demised Premises shall be deposited
in escrow with Chicago Title Insurance Company, Cleveland, Ohio or such other
bank or title company in Cleveland, Ohio as Tenant may designate, as escrow
agent, ("Escrow Agent"), on or before the Closing hereinafter defined. All
funds pertaining to the purchase of the Demised Premises shall be deposited in
escrow by Closing. Closing of said transaction shall take place, provided all
the terms and conditions of this Article 7 have been completed as provided for
in this Article 7, sixty (60) days after the date of the exercise of the option
or on such earlier or later date as Tenant and Landlord may mutually agree. The
term "Closing" means the date upon which the Purchase Price shall be paid to
Landlord and the deed conveying title to the Demised Premises recorded.
7.5. The Purchase Price shall be payable either in cash or, by wire
transfer of good funds.
7.6. This Article shall serve as escrow instructions, subject to the
Escrow Agent's usual conditions of acceptance where not contrary to any of the
terms hereof. The Escrow Agent is hereby authorized to close the transaction and
make all prorations and allocations which, in accordance with this Article, are
to be made between the parties hereto.
7.7. On or before the Closing, Landlord shall deposit with the Escrow
Agent (i) a limited warranty deed which when recorded will convey to Tenant fee
simple ownership of the Demised Premises (as the same may then be subject to
Articles 15 and/or 16 hereof), free and clear of all liens and encumbrances
whatsoever, except: zoning ordinances then in effect; the Approved Title
Exceptions; all real estate taxes and assessments, both general and special,
levied on and/or assessed against the Demised Premises; any encroachments,
boundary line disputes, overlaps and any other matters whether or not of record
as would be disclosed by an accurate survey and inspection; any liens or
encumbrances created by Tenant and/or asserted against the Demised Premises by,
through, or under Tenant; and any mortgage or related liens placed upon the
Demised Premises by Landlord and assumed by Tenant in accordance with Article 17
hereof; and (ii) a good and sufficient bill of sale conveying to Tenant the
ownership of any personal property included within the definition of the Demised
Premises, free and clear of all liens and encumbrances whatsoever, except as
aforesaid. Landlord shall execute any further deeds, bills
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of sale or other instruments of conveyance reasonably required in order to
convey title to the Demised Premises to Tenant in accordance herewith.
7.8. Landlord shall cause Chicago Title Insurance Company or other title
company selected by Tenant to issue an ALTA Owner's Policy of Title Insurance
(the "Title Policy") in the amount of the Purchase Price insuring that title to
the Demised Premises as required to be conveyed hereunder is good in Tenant.
Landlord and Tenant shall deliver to the Escrow Agent such affidavits as the
Escrow Agent may require in order for the Escrow Agent to cause all mechanics
lien exceptions to be deleted from the Policy of Title Insurance.
7.9. There shall be no proration of taxes and assessments at Closing,
provided, however, that Tenant shall be entitled to a credit and Landlord shall
be charged an amount equal to the amount of real estate taxes and assessments,
both general and special, paid by Tenant for the first half of 1995.
7.10. If after Tenant has exercised the option to purchase granted it
under Article 7 hereof, but prior to the date of transfer of title, the Demised
Premises or any portion thereof are damaged or destroyed by fire or other cause,
or title to or temporary use of the Demised Premises or any portion thereof is
taken by exercise of condemnation or eminent domain or by amicable acquisition
in lieu thereof, then, in such event, Tenant shall complete the purchase without
any reduction in the Purchase Price and the entire Purchase Price shall be paid
in a lump sum, in cash. In such event, the entire insurance proceeds payable on
account of such damage or destruction or the Net Proceeds payable for such
taking (as hereinafter defined) shell be paid over to Landlord to the extent of
the full Purchase Price for the Demised Premises with any balance to be paid to
Tenant.
7.11. Escrow Agent shall charge Tenant with: all recording fees and one-
half (1/2) of the escrow fee. Landlord shall be charged with: one-half (1/2)
of the escrow fee; the conveyance fee required by law to be paid at the time of
the filing of the deed, provided, however, that if such conveyance fee shall be
payable more than thirty-six (36) months after the date hereof, then such fee
shall be limited to the amount thereof that would be payable as of the date of
execution of this Lease; the cost of the Title Policy; and the cost of
cancelling of record any mortgage or related liens of Landlord not assumed or
taken subject to by Tenant in the manner provided in Article 17 hereof.
7.12. This Lease shall terminate as of the Closing, and both parties
hereto shall be released of all further obligations hereunder except for all
obligations which may have accrued prior thereto. Base Annual Rent payable
hereunder shall be prorated as of the Closing. At the request of Tenant,
Landlord and Tenant shall execute a mutual termination of Lease in recordable
form, effective as of the Closing Date, and deliver same to the Escrow Agent for
recording on the Closing Date.
7.13. (a) The Fair Market Value of the Demised Premises shall be the fair
market value of the Demised Premises, as mutually agreed upon by Landlord
and Tenant within 30 days after the option is exercised. In the event that
within said 30 day period,
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Landlord and Tenant fail to so agree to such value, then the amount of the
Fair Market Value shall be determined by an appraiser chosen by Landlord
and Tenant who shall render his decision within 60 days after the option is
exercised such decision shall be final binding and conclusive on both
Landlord and Tenant and judgment thereon may be entered in any court of
competent jurisdiction in the State of Ohio. In the event Landlord and
Tenant fail to designate an appraiser within 30 days after the option is
exercised, then the determination of Fair Market Value shall be submitted
to arbitration to, and in accordance with the rules of, the American
Arbitration Association. In the event of such arbitration, Tenant shall
select one (1) arbitrator from a list of arbitrators to be submitted by the
American Arbitration Association, Landlord shall select one (1) arbitrator
from said list, and the two arbitrators so selected shall select the third
(3rd) arbitrator from such list as hereinafter provided. The three (3)
arbitrators shall then determine the fair market value of the Demised
Premises and such determination shall be binding upon Landlord and Tenant.
(b) As used in this Lease, the phrases "fair market value for the
Demised Premises" or "Fair Market Value" shall mean the fair market value
of the Demised Premises as if the same were unencumbered by this Lease and
at the highest and best use of the Demised Premises.
(c) The arbitration shall be conducted as follows:
(i) The arbitration hearings shall be held in Cleveland, Ohio.
(ii) The arbitrators shall be persons who have had at least ten
(10) years of experience as a real estate broker, appraiser or the
like in the Mansfield State of Ohio area. In the event that either
Tenant or Landlord fails to appoint an arbitrator within sixty (60)
days after the expiration of the 30 day period provided for the Tenant
and the Landlord to reach agreement on the Fair Market Value or to
select a single appraiser, then the arbitrator of the Tenant or the
Landlord, or both, as the case may be, shall be appointed by the
American Arbitration Association from its qualified panel of
arbitrators who meet the qualifications required of such arbitrators
provided in this Subsection 7.13(c)(ii).
(iii) In the event that the two arbitrators selected by Tenant
and Landlord or by the American Arbitration Association in accordance
with the provisions hereof shall fail to appoint a third arbitrator
within twenty (20) days after their appointment, then such third
arbitrator shall be appointed by the American Arbitration Association
from its qualified panel of arbitrators who meet the requirements for
qualification provided under Subsection 7.13(c)(ii) hereof. The third
arbitrator shall act as chairman of the arbitration panel for purposes
of conducting the arbitration hearing.
(iv) The hearing to be held by the arbitrators shall be held
within seventy (70) days after their appointment and their decision
shall be rendered
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within thirty (30) days after the conclusion of such hearings. Such
decision shall be in writing and in duplicate, one counterpart thereof
to be delivered to each of the parties hereto. The award of the
arbitrators shall be binding, final and conclusive on the parties and
judgment thereon may be entered in any court of competent jurisdiction
in the State of Ohio.
(v) The fees of the arbitrators and the expenses incident to
the proceedings shall be borne equally by Landlord and Tenant. The
fees of respective counsel engaged by the parties and the fees of
expert witnesses and other witnesses called for by the parties shall
be paid by the respective party engaging such counsel or calling or
engaging such witnesses.
ARTICLE 8
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IMPROVEMENTS, REPAIRS, ADDITIONS & REPLACEMENTS
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8.1. Tenant acknowledges that it takes and accepts the Demised Premises
under this Lease in its "as is" condition provided, however, that Landlord shall
pay the sum of Forty Thousand Dollars ($40,000.00) to Tenant for repairs to the
roof of the West Building to be promptly undertaken and completed by Tenant even
if the cost thereof is more or less than Forty Thousand Dollars ($40,000.00).
Landlord will pay such Forty Thousand Dollars ($40,000.00) to Tenant upon
completion of such work and payment to the roof contractor. Tenant acknowledges
that it has not relied upon any representation or statement of Landlord (or any
person acting for Landlord), oral or written, as to the physical condition of
the Premises or the suitability thereof for the operation permitted on the
Demised Premises by this Lease except any representations or statements of
Landlord expressly set forth in this Lease. Tenant, prior to the execution of
this Lease, has thoroughly examined the Demised Premises and has found them to
be suitable for Tenant's operations hereunder.
8.2. Tenant shall, at all times during the Term of this Lease, and at its
own cost and expense, keep and maintain or cause to be kept and maintained in
repair and good condition, including making all replacements to keep in good
condition, the Demised Premises and shall repair any waste, damage or injury to
all buildings and improvements on the Demised Premises.
8.3. Tenant shall have the right, at its own cost and expense, at any
time and from time to time, to make such alterations, changes, replacements and
improvements in, to or on any part or all of the Demised Premises, as it may
deem desirable after first obtaining Landlord's written consent thereto, for
those which cost more than Twenty-five Thousand Dollars ($25,000.00) each,
except for emergencies. Landlord's consent or approval under this paragraph 8.3
shall not be unreasonably withheld.
8.4. Tenant covenants and agrees to yield and deliver peaceably to
Landlord possession of the Demised Premises on the date of any termination
and/or expiration of this Lease, promptly and in good operating condition, and
all of the Demised Premises and all personal property used
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in connection therewith and all buildings, structures, improvements and fixtures
shall then be free and clear of all liens, encumbrances and security interests
whatsoever, except any created solely by Landlord.
ARTICLE 9
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REQUIREMENTS OF PUBLIC AUTHORITY
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9.1. During the Term of this Lease, Tenant shall, at its own cost and
expense, observe and comply with all present and future laws, ordinances,
requirements, orders, directives, rules and regulations of the Federal, State,
County, and City Governments and of all other governmental authorities affecting
the Demised Premises or appurtenances thereto or any part thereof whether the
same are in force at the commencement of the Term of this Lease or may in the
future be passed, enacted or directed. The Demised Premises are currently being
operated by Hartman for the purpose Landlord expects Tenant to operate the
Demised Premises. Landlord represents to Tenant that it has no knowledge of any
material matter, except as set forth in Article 26 hereof, which would prevent
Tenant from operating the Demised Premises in substantially the same manner as
same are being operated by Hartman at the date hereof.
9.2. Tenant shall have the right, at Tenant's sole cost and expense, to
contest by appropriate legal proceedings diligently conducted in good faith, in
the name of the Tenant, or Landlord (if legally required), or both (if legally
required), the validity or application of any law, ordinance, rule, regulation
or requirement of the nature referred to in paragraph 9.1, and Landlord shall
execute and deliver any appropriate documents, consents or other instruments,
prepared by Tenant at Tenant's sole cost and expense, which may be reasonably
necessary and proper to contest the same, and, if by the terms of any such law,
ordinance, order, rule, regulation or requirement, compliance therewith may
legally be delayed pending the prosecution of any such proceedings, Tenant may
delay compliance therewith until the final determination of such proceeding,
provided, however, that Tenant shall defend, indemnify and hold harmless
Landlord from and against any and all loss, cost, expense, liability, penalty or
judgments, including attorney fees, arising from Tenant's exercise of any
aforesaid right.
ARTICLE 10
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COVENANT AGAINST LIENS
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10.1. If any mechanic's lien or other lien, charge or order for the
payment of money shall be filed against all or any portion of the Demised
Premises, Tenant shall, at its own cost and expense, cause the same to be
discharged of record, by bonding or otherwise, within ninety (90) days after
written notice from Landlord or other notice to Tenant of the filing thereof,
and Tenant shall defend, indemnify and hold harmless Landlord and the Demised
Premises against and from any and all claims, demands, suits, liabilities,
penalties, costs and expenses, including attorney fees and court costs on
account thereof.
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10.2. If Tenant shall fail to satisfy and discharge of record the liens
described in Section 10.1 within the aforesaid ninety (90) day period, then
Landlord shall, in addition to any other rights and/or remedies, available to
Landlord under Article 19 hereof, have the right to cause the same to be
discharged of record, by bonding or otherwise. All amounts paid by Landlord to
cause such liens to be discharged shall constitute additional rent payable by
Tenant to Landlord on the date of the next monthly installment of Base Annual
Rent due hereunder.
10.3. If, because of any act or omission of Landlord, any mechanic's lien
or other lien, charge or order for the payment of money shall be filed against
all or any portion of the Demised Premises, Landlord shall, at its own cost and
expense, cause the same to be discharged of record, by bonding or otherwise,
within ninety (90) days after written notice from Tenant or other notice to
Landlord of the filing thereof, and Landlord shall defend, indemnify and hold
harmless Tenant and the Demised Premises against and from any and all claims,
demands, suits, liabilities, penalties, costs and expenses, including attorney
fees and court costs on account thereof.
10.4. If Landlord shall fail to cause the liens described in Section 10.3
to be discharged or bonded within the aforesaid ninety (90) day period, then
Tenant shall have the right to cause the same to be discharged. All amounts
paid by Tenant to cause such liens to be discharged may be deducted by Tenant
from the next subsequent installment of Base Annual Rent payable hereunder.
ARTICLE 11
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ASSIGNMENT AND SUBLETTING
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11.1 Tenant shall not hypothecate this Lease. Tenant shall not assign
this Lease nor sublet nor otherwise transfer its interest in all or any part of
the Premises by merger or other operation of law, or otherwise, without the
prior written consent of Landlord, which consent may be withheld or delayed by
Landlord in its sole discretion. If Tenant wishes to assign this Lease or sublet
or otherwise transfer all or any part of the Demised Premises, it shall give
notice in writing (by certified mail or by personal delivery) of such desire to
Landlord for Landlord's approval or disapproval, as the case may be. If
assignment or subletting is so approved and the rents under the sublease are
greater than the rents provided for herein, then Landlord shall have the further
option either:
(a) to accept such sublease as a prime lease or to accept such
assignee as a direct tenant of Landlord, and receive all of the rents, in
which case Tenant will be relieved of further liability hereunder,
(b) to require Tenant to remain liable under this Lease, and Tenant
shall be entitled only to that portion of the amount of rent received from
the sublessee or assignee which is not in excess of the amount of rent
payable under the terms of this Lease, the balance of rent to be paid to
Landlord or to
-11-
(c) terminate this Lease in which case Tenant shall be relieved of
further liability hereunder.
Except, as provided in Article 11.2, in the event Tenant is a corporation
or other entity the transfer or the sale or sales, during the term hereof,
aggregating fifty (50) percent or more of the outstanding shares of stock or
other interests of Tenant or any other change in control of management of
Tenant, shall be deemed to be an assignment of this Lease within the meaning of
this Article.
11.2 Notwithstanding the provisions of Article 11 above, so long as the
Demised Premises continue to be used for substantially the same purposes as same
are now used by Hartman, the Tenant may assign this Lease to a successor
("Successor") which acquires all of the assets of Tenant, into which Tenant
merges (or which merges into Tenant) or to which the stock of Tenant is sold on
and subject to the following conditions:
(a) Tenant shall first have delivered to Landlord at least thirty
(30) days prior to such assignment the name, address, business experience
and complete financial statements of said Successor;
(b) In the event of the sale of the assets of Tenant or merger, the
Successor shall have a net worth at least as great as the net worth of
Tenant prior to such sale or merger, and
(c) In any such event, Tenant shall remain fully liable under all
of the terms, covenants and conditions of this Lease unless Landlord
consents to release Tenant which Landlord shall be required to do only if
Landlord is reasonably satisfied that the obligations hereunder can be
performed by the Successor in the future.
ARTICLE 12
----------
INDEMNITY
---------
12.1. In addition to the indemnification obligations provided in Section
26.6, Tenant shall defend, indemnify and hold harmless Landlord, its property,
its successors and assigns from and against any loss, damage and liabilities,
including attorney fees and court costs, from any suit or claim, demand of third
persons including, but not limited to, those for death, for personal injuries,
property damage, loss of income or moving expenses arising out of any default of
Tenant in performing or observing any term or provision of this Lease, or
arising out of the use or occupancy of the Demised Premises by Tenant, or others
with or without its consent, or out of the acts or omissions of Tenant, its
employees, agents, contractors, customers, guests, invitees and other persons
who are doing business with Tenant or who are at the Demised Premises with or
without their consent where such acts or omissions are on the Demised Premises,
or arising out of any acts or omissions of Tenant, its partners, employees,
agents and independent contractors. The foregoing indemnity shall include
claims made against Landlord by reason of
-12-
any contracts, agreements, dealings or Tenant Leases to which Tenant is a party,
by assignment or otherwise, arising out of events occurring after the
Commencement Date or covered by insurance to be maintained by Tenant under this
Lease.
12.2. In addition to the indemnification obligations provided in Section
26.2, Landlord shall indemnify and save harmless Tenant from and against any and
all liability, damage, penalties or judgments rendered against Tenant arising
from injury to person or property sustained by third persons at the Demised
Premises prior to the Commencement Date, resulting from any act or acts or
omission or omissions of Landlord or Landlord's officers, agents, servants or
employees, and not covered by insurance to be maintained by Tenant under this
Lease.
ARTICLE 13
----------
INSURANCE
---------
13.1. Tenant shall provide or cause to be provided at its expense, and
keep in force during the Term of this Lease, comprehensive general liability
insurance in an insurance company or companies licensed to do business in the
State of Ohio, selected by Tenant, and shall name Tenant and Landlord (and
Landlord's mortgagee, if any) as insured parties thereunder, in the amount of at
least Three Million Dollars ($3,000,000.00) with respect to injury or death in
any one accident or other occurrence and up to but in no event and under any
circumstances less than full insurable replacement value with respect to damage
to property. Tenant agrees to deliver certificates of such insurance to
Landlord as of the Commencement Date and thereafter not less than 30 days prior
to the expiration of any such policy. Such insurance shall be noncancelable
without 30 days written notice to Landlord.
13.2. Tenant shall provide or cause to be provided at its expense, and
keep in force during the Term of this Lease, for the benefit of Tenant and
Landlord (and Landlord's mortgagee, if any) all risk fire and extended coverage
insurance, including coverage for vandalism and malicious mischief, covering the
full replacement cost of all buildings and improvements (including boilers and
related machinery) located on or being a part of the Demised Premises, with an
agreed value endorsement, in such amounts as will avoid the coinsurance
provisions of any such insurance and rental loss insurance to cover the rental
due hereunder for a 12 month period following the first lease year. Tenant
agrees to deliver certificates of such insurance to Landlord as of the
Commencement Date and thereafter not less than 30 days prior to the expiration
of any such policy. Such insurance shall be noncancelable without 30 days
written notice to Landlord.
13.3. All insurance proceeds from or under the aforesaid insurance
policies provided by Tenant, except as to such policy of insurance required
under paragraph 13.1, shall be payable to Tenant and/or Landlord as the case may
be pursuant to the provisions of Article 15 hereof.
-13-
ARTICLE 14
----------
WAIVER OF SUBROGATION
---------------------
14.1. All insurance policies required to be carried by Tenant hereunder or
otherwise covering the Demised Premises, including, but not limited to contents,
fire and casualty insurance, shall expressly waive any right on the part of the
insurer against the Landlord. Tenant agrees that its policies will include such
waiver clause or endorsement and if extra cost shall be charged therefor, Tenant
shall pay such extra cost.
14.2. Both Landlord and Tenant waive any and all right of recovery, claim,
action or cause of action, against the other, their agents, officers and
employees for any loss or damage that may occur to the Demised Premises, the
contents thereof, or any improvements thereof, by reason of fire, the elements
or any other cause which is insured against under the terms of the all risk fire
and extended coverage insurance policy or policies required to be maintained
hereunder, regardless of cause or origin, including the negligence of the Tenant
or Landlord as the case may be, their agents, officers and employees.
ARTICLE 15
----------
REPAIR AND RESTORATION; DAMAGE OR DESTRUCTION
---------------------------------------------
15.1. In the event that, at any time during the Term of this Lease, the
buildings and improvements on the Demised Premises shall be destroyed or damaged
by fire or other cause, either in whole or in part, then, except as hereinafter
provided, Tenant shall restore, repair, replace and rebuild the improvements on
the Demised Premises to an architectural whole unit. In such event, the
insurance proceeds shall be paid to and held in trust by Landlord for the
benefit of Tenant and Landlord, as their respective interests may appear, and
shall be paid over to Tenant during the course of said restoration and repair to
the extent necessary to pay the cost of said restoration and repair. Any
balance remaining after payment of such cost of restoration and repair shall
belong to Tenant. If there are less than two years remaining under the Term of
this Lease and the cost to restore, repair, replace and rebuild the same is One
Hundred Thousand Dollars ($100,000.00) or more, then this Lease shall terminate
and all proceeds of insurance shall be paid to and shall be the sole property of
Landlord.
15.2. In the event that the buildings and improvements on the Demised
Premises shall be destroyed or damaged in whole or paid by fire or other cause,
Tenant shall have the immediate right to exercise the option to purchase the
Demised Premises granted in Article 7 hereof. In the event Tenant exercises
such option, the entire insurance proceeds payable with respect to such damage
or destruction shall be paid over to Landlord to the extent of the full Purchase
Price for the Demised Premises (Tenant to be liable for the shortfall, if any)
with any balance to be paid to Tenant. In the event Tenant does not exercise
such option, then the provisions of paragraph 15.1 above shall apply.
-14-
ARTICLE 16
----------
EMINENT DOMAIN
--------------
16.1. If at any time during the Term of this Lease, title to the whole or
substantially all of the Demised Premises shall be taken by exercise of the
right of condemnation or eminent domain or by amicable acquisition in lieu
thereof (all such proceedings being collectively referred to herein as "taking"
or "a taking in condemnation"), this Lease shall terminate and expire on the
date when the condemning authority acquires actual possession of the Demised
Premises to be taken (the "Condemnation Date"), and the Base Annual Rent and any
and all additional rents or charges hereunder shall be apportioned and paid to
the Condemnation Date. A taking of sixty percent (60%) or more of the ground
floor area of the buildings on the Demised Premises at the time of the taking
shall be deemed a taking of "substantially all of the Demised Premises". In the
event of the taking of the whole or substantially all of the Demised Premises
during the Term of this Lease, the net proceeds of any award after deducting all
expenses and costs, including attorney's fees, incurred in connection therewith
("Net Proceeds") upon any such taking shall be distributed as follows:
(a) First, the Net Proceeds shall be paid to the holder or holders
of any Landlord's Mortgage(s) and to discharge any other lien created by
Landlord on the Demised Premises to the extent of the then unpaid amount
thereof but in no event shall the amounts due under this subparagraph (a)
exceed Five Hundred Thousand Dollars ($500,000.00).
(b) Second, the Net Proceeds remaining shall be paid to the
Landlord to the extent of Five Hundred Thousand Dollars ($500,000.00), less
any amounts paid under subparagraph 16.1(a).
(c) Third, the balance of the Net Proceeds remaining shall be paid
to the Tenant.
16.2. As an alternative to the foregoing, in the event title to the whole
or substantially all of the Demised Premises shall be taken as aforesaid,
Tenant, at its option, shall have the immediate right to exercise the option to
purchase the Demised Premises granted in Article 7 hereof. In the event Tenant
exercises such option, the entire Net Proceeds shall be paid over to Landlord to
the extent of the full Purchase Price for the Demised Premises with any balance
to be paid to Tenant. In the event Tenant does not exercise such option, then
the provisions of paragraph 16.1 above shall apply.
16.3. If at any time during the Term of this Lease, title to less than the
whole or substantially all of the Demised Premises shall be taken in
condemnation, Tenant shall repair or restore the Demised Premises, as nearly as
may be reasonably possible to the condition in which the Demised Premises was at
the time of such taking. In such event, the Net Proceeds shall be paid to and
held in trust by Landlord for the benefit of Tenant and shall be paid over to
Tenant upon the completion of said restoration and repair to the extent
necessary to pay the cost of said
-15-
restoration and repair. Any balance remaining after payment of such cost of
restoration shall belong to Landlord. However, following such taking there
shall be an equitable decrease in the Base Annual Rent in proportion to the
portion and use of the Demised Premises so taken.
16.4. If at any time during the Term of this Lease, the temporary use of
the whole or substantially all of the Demised Premises shall be taken in
condemnation, then Tenant shall continue to pay in full the Base Annual Rent and
any and all additional rents and/or charges to be paid by the Tenant hereunder,
and Tenant shall be entitled to the Net Proceeds for such taking (whether paid
by way of damages, rent, or otherwise) unless the period of occupation and use
by the condemning authority shall extend beyond the date of expiration of this
Lease, in which case the net proceeds for such taking shall be apportioned
between Landlord and Tenant as of the date of such expiration, provided,
however, that if Tenant appropriately and timely exercises the option to
purchase granted in Article 7 hereof during the period of such temporary use,
the provisions of Article 7, paragraph 7.9 and not the provisions of this
paragraph, shall apply. At the termination of any such use or occupation of the
Demised Premises, if the same occurs during the Term of this Lease, Tenant shall
repair or restore the buildings and improvements then upon the Demised Premises
to the condition, as nearly as may be reasonably possible, in which such
buildings and improvements were at the time of such taking. In such event, the
Net Proceeds shall be paid to and held in trust by Landlord for the benefit of
Tenant and shall be paid over to Tenant upon the completion of said restoration
and repair to the extent necessary to pay the cost of said restoration and
repair. Any balance remaining after payment of such cost of restoration and
repair shall belong to Landlord.
16.5. Nothing contained in this Article shall be construed to preclude
Landlord or Tenant from making any claim for a taking in condemnation for its
interest as Landlord or Tenant and for removal, moving and relocation; provided,
however, that such claim does not diminish any award to Landlord provided for in
subparagraph (1) of this Article 16.
ARTICLE 17
----------
MORTGAGES
---------
17.1. Landlord shall have the right to mortgage its fee interest or any
other interest in the Demised Premises or buildings, improvements, fixtures,
equipment or other property thereon to the extent owned by Landlord, to a
maximum of Five Hundred Thousand Dollars ($500,000.00), or any part thereof,
provided, however, that any such mortgage shall be subject to this Lease and
that if the term of such mortgage shall extend beyond Tenant's exercise of the
option granted in Article 7 hereof, then at Tenant's election, any such mortgage
shall either be satisfied and discharged by Landlord in full on or before the
date of Closing or, if the terms of such mortgage so allow, any such mortgage
may be assumed by Tenant as a condition of Closing. Any such Mortgage shall
provide that the holder thereof will release the lien of such Mortgage against
the Demised Premises upon receipt of the payment of no more than $500,000
notwithstanding that the balance due on such Mortgage shall be in excess of
$500,000.
-16-
17.2. Landlord reserves the right to demand and obtain from Tenant a
waiver of priority of Tenant's lien arising by virtue of the within leasehold
estate, thereby subordinating Tenant's lien in favor of any first mortgage loan,
any first mortgage lien, or any refinancing or replacing of a first mortgage
loan that complies with Section 17.1 hereof. Tenant, upon demand by Landlord
for the same, agrees to execute at any and all times, such instruments as may be
required by any lending institution or prospective first mortgagee in order to
effectuate such waiver of priority and subordination of Tenant's lien. If
Tenant, within five (5) days after submission of such instrument, fails to
execute the same, Landlord is hereby authorized to execute the same as attorney-
in-fact for Tenant. In the event any proceedings are brought for foreclosure,
or in the event of the exercise of the power of sale under any mortgagee or deed
of trust, Tenant shall attorn to the purchaser in any such foreclosure or sale
and recognize such purchaser as Landlord under this Lease. Tenant agrees, upon
request of Landlord and/or Landlord's mortgagee, to execute and deliver to
Landlord and/or Landlord's mortgagee, a Subordination, Non-Disturbance and
Attornment Agreement. Tenant further agrees, upon request of Landlord and/or
Landlord's mortgagee, to execute and deliver to Landlord and/or Landlord's
mortgagee from time to time, an Estoppel Certificate in such form as either may
require.
17.3. As a condition to Tenant executing the Subordination, Non-
Disturbance and Attornment Agreement referred to in Section 17.2, Landlord shall
procure from such lending institution or mortgagee of Landlord an agreement in
writing, which shall be delivered to Tenant, providing in substance that so long
as Tenant shall faithfully discharge the obligations on its part to be kept and
performed under the terms of this Lease, Tenant's tenancy will not be disturbed
nor this Lease affected by any default under such mortgage, and Tenant agrees
that this Lease shall remain in full force and effect even though default in the
mortgage may occur.
ARTICLE 18
----------
QUIET ENJOYMENT
---------------
18.1. Tenant, upon paying the Base Annual Rent and additional rent and/or
any and all other sums and charges to be paid by it as herein provided, and upon
observing and keeping all covenants, warranties, agreements and conditions of
this Lease on its part to be kept, shall quietly have and enjoy the Demised
Premises during the Term of this Lease.
18.2. Landlord represents and warrants to Tenant that:
(a) As of the date hereof and as of the Commencement Date, it is
the owner of the fee simple title to the Demised Premises, free and clear
of all liens and encumbrances, except for the Approved Title Exceptions.
(b) It has the power and authority to execute and deliver this
Lease and to carry out and perform all covenants to be performed by it
hereunder, and such power and authority shall be confirmed on or before the
Commencement Date by the delivery to
-17-
Tenant of a duly executed corporate resolution as to the same adopted by
the Shareholders and the Directors of Landlord.
18.3. Tenant represents and warrants to Landlord that:
(a) It is a corporation duly organized and existing under the laws
of the State of North Carolina.
(b) It has the power and authority to execute and deliver this
Lease and to carry out and perform all covenants to be performed by it
hereunder.
ARTICLE 19
----------
TERMINATION AND DEFAULT
-----------------------
19.1. In the event that (a) Tenant shall fail to pay any installment of
Base Annual Rent and/or additional rent and/or any other sums or charges to be
paid by Tenant under this Lease when the same shall be due and payable and such
failure shall continue for a period of ten (10) days after receipt by Tenant of
notice in writing from Landlord specifying in detail the nature of such failure;
or (b) Tenant shall fail to perform any of the other covenants, conditions and
agreements herein contained on Tenant's part to be kept or performed and such
failure shall continue without the curing of same for a period of thirty (30)
days (or such additional period of time as may reasonably be required to cure
such default if it cannot be cured within thirty (30) days, so long as Tenant is
making diligent effort to cure same) after receipt by Tenant of notice in
writing from Landlord specifying in detail the nature of such failure; or (c)
Tenant shall voluntarily or involuntarily abandon, desert or vacate the Demised
Premises or discontinue its operations therein regardless of the fault of
Tenant; or (d) Tenant shall become insolvent, or shall take the benefit of any
present or future insolvency statute, or shall make a general assignment for the
benefit of its creditors, or shall file a voluntary petition in bankruptcy or a
petition or answer seeking an arrangement or its reorganization or the
readjustment of its indebtedness under the federal bankruptcy laws or under any
other law or statute of the United States or of any State thereof, or consent to
the appointment of a receiver, trustee or liquidator of all or substantially all
its property; or (e) a petition under any part of the federal bankruptcy laws or
an action under any present or future insolvency law or statute shall be filed
by or against Tenant or against any guarantor of Tenant's obligations hereunder;
or (f) by order or decree of a court, Tenant shall be adjudged bankrupt or an
order shall be made approving a petition filed by any of the creditors of or by
any of the partners of Tenant, seeking its reorganization or the readjustment of
its indebtedness under the federal bankruptcy laws or under any law or statute
of the United States or of any State thereof now or hereafter in effect; or (g)
by or pursuant to any order or decree of any court or governmental board, agency
or officer, a receiver, trustee or liquidator shall take possession or control
of all or substantially all the property of Tenant, or any execution or
attachment shall be issued against Tenant or any of its property whereupon
possession or control of the Premises or of the income therefrom shall be taken
by someone other than Tenant, and any such possession or control shall continue
in effect for a period of thirty (30) days; or (h) the
-18-
interest or estate of Tenant under this Lease be sold, transferred, assigned,
mortgaged, pledged, hypothecated, encumbered, conveyed or shall pass to or
devolve upon (by operation of law, by statute or otherwise) any person or entity
other than Tenant, except as provided in this Lease and provided further that
for purposes of this Lease, a transfer of a controlling interest in Tenant or
the sale to third parties of controlling interests in Tenant shall, for purposes
of this paragraph, be considered a transfer of Tenant's interest under this
subdivision; or (i) any mechanic's lien or other lien shall be filed against all
or any portion of the Demised Premises or against Tenant's interest under this
Lease and are not removed or discharged of record within ninety (90) days, as
provided in Article 10 hereof; then in any such event, Landlord may, in addition
to any other rights or remedies available to Landlord at law or in equity, elect
to terminate this Lease, in which event Landlord shall give to Tenant, a notice
of election to end the Term of this Lease upon a date specified in such notice,
which date shall be not less than ten (10) business days (Saturdays, Sundays and
legal holidays excluded) after the date of receipt by Tenant of such notice from
Landlord, and upon the date specified in said notice, the Term and the estate
hereby vested in Tenant shall cease and any and all other right, title and
interest of Tenant hereunder shall likewise cease without further notice or
lapse of time, as fully and with like effect as if the entire Term of this Lease
had elapsed.
19.2. In the event that Landlord shall elect to terminate this Lease in
accordance with the provisions of this Article then Tenant, in addition to any
and all other liability as the result of same, shall be and remain liable for:
(a) All payments of Base Annual Rent and/or other additional rents
and/or sums due to be paid by Tenant under the Lease in arrears and/or in
default on the date of termination and/or which would be due and payable
for the balance of the Term; and
(b) Any and all costs or expenses incurred by Landlord as the
result of Tenant's default, including but not limited to the cost and
expense of the termination of this Lease and of reletting the Demised
Premises. Any such costs and expenses shall be paid in monthly installments
by Tenant on the first (1st) day of the month succeeding the month in which
the same arose and Landlord shall be entitled to recover from Tenant any
such additional costs and expenses each month as the same shall arise.
19.3. Landlord shall, upon giving of notice of termination as provided in
this Article, have the right to re-enter the Demised Premises and every part
thereof upon the effective date of termination without further notice of any
kind, and may regain and resume possession either with or without the
institution of summary or any other legal proceedings or otherwise. Such re-
entry or regaining of possession, however, shall not in any manner affect, alter
or diminish any of the obligations of Tenant under this Lease, and shall in no
event and under no circumstances constitute an acceptance of surrender. Upon
such re-entry Landlord shall have, and is hereby expressly given, all rights to
collect all rental and other amounts due from Tenants. Landlord's affidavit
that such re-entry has occurred shall conclusively authorize all Tenants to pay
all future rentals theretofore collected by Tenant, directly to Landlord. Upon
such re-entry, Tenant shall immediately pay over to Landlord all security
deposits in its possession or control.
-19-
ARTICLE 20
----------
SURVIVAL OF THE OBLIGATIONS OF TENANT
-------------------------------------
In the event that this Lease shall have been terminated in accordance with
a notice of termination as provided in Article 19 of this Lease, or the interest
of Tenant is cancelled pursuant thereto, or in the event that Landlord has re-
entered or regained possession of the Premises in accordance with the provisions
of Article 19 of this Lease, all the obligations of Tenant under this Lease
shall survive such termination or cancellation, re-entry or regaining of
possession and shall remain in full force and effect for the full Term of this
Lease, and the amount or amounts of damages or any and all other payments for
which Tenant is thereby made liable under paragraph 19.2 of Article 19, or
otherwise, shall become due and payable to Landlord with interest at fourteen
percent (14%) per annum.
ARTICLE 21
----------
WAIVERS
-------
Failure of Landlord or Tenant to complain of or notify the other with
respect to any act or omission on the part of the other party, no matter how
long the same may continue, shall not be deemed to be a waiver by such party of
any of its rights hereunder. No waiver by Landlord or Tenant at any time,
express or implied, of any breach of any other provision of this Lease shall be
deemed a consent to any subsequent breach of the same or any other provision.
ARTICLE 22
----------
BROKER
------
Both Landlord and Tenant confirm and acknowledge that this Lease has been
entered into and the transaction herein contemplated has been arrived at by
direct negotiations between them and that no broker or finder has initiated,
been the procuring cause of, or otherwise brought about this Lease and/or this
transaction.
-20-
ARTICLE 23
----------
FORCE MAJEURE
-------------
In the event that Landlord or Tenant shall be delayed, hindered in or
prevented from the performance of any act required hereunder, except for the
payment by lessee of the Base Annual Rent and any and all additional rent or
other charges as and when due and payable hereunder, by reason of strikes,
inability to procure materials, failure of power, riots, insurrection, the act,
failure to act or default of the other party, war or other reason or cause
beyond their control, then performance of such act (except as aforesaid) shall
be excused for the period of the delay and the period for the performance of any
such act shall be extended for a period equivalent to the period of such delay.
ARTICLE 24
----------
HOLDING OVER
------------
Without giving or recognizing any right of Tenant to do so and without
limiting any and all rights and remedies of Landlord with respect thereto,
including without limitation, any and all damages or losses sustained by
Landlord in connection therewith, if Tenant shall remain in possession of the
Premises after the expiration of the Term of this Lease, then Tenant shall be
deemed Tenant from month to month only. Any holding over by Tenant shall be
upon and subject to all of the terms and conditions of this Lease except as to
the Term of this Lease, and except that the option to purchase shall not be
exercisable during such holdover, and the monthly rental payment then due and
payable shall be an amount double the amount thereof in force at the end of the
Term.
ARTICLE 25
----------
NOTICES
-------
Every notice, approval, consent or other communication authorized or
required by this Lease shall not be effective unless same shall be in writing
and sent postage prepaid by United States registered or certified mail, return
receipt requested, directed to the other party at its address set forth below,
or such other address as either party may designate by notice to the other given
from time to time in accordance with this Article 25. The Base Annual Rent
and/or any
-21-
other additional rent and/or other charges which Tenant is required hereunder to
pay to Landlord shall be so paid at the same place where notice to Landlord is
herein required to be directed.
To Tenant: 1396 Charlotte Hwy. To Landlord: 4420 Sherwin Road
(US 74 East) Willoughby, Ohio 44094
Fairview, NC 28730-0520 FAX: (216) 951-1724
FAX: 704-628-1439
Copy to: Benesch, Friedlander,
Coplan & Aronoff P.L.L.
Attn: Chairperson, Real
Estate Dept.
2300 BP America Bldg.
200 Public Square
Cleveland, Ohio 44114
ARTICLE 26
----------
ENVIRONMENTAL MATTERS
---------------------
26.1. For purposes of this Agreement, the terms defined below have the
following meanings:
(a) "Contaminants" means those substances which are regulated by or
form the basis of liability under any Environmental Laws, including, but
not limited to, hazardous waste, hazardous substances, petroleum and any
byproducts or fractions thereof, asbestos, and polychlorinated biphenyls
("PCBs").
(b) "Escrow Agreement" means the Environmental Remediation and
Escrow Agreement, between Landlord and Tenant dated as of the date hereof.
(c) "Environmental Laws" means all applicable Federal, state, and
local laws, regulations and ordinances relative to air quality, water
quality, solid waste management, hazardous waste management, hazardous or
toxic substances or the protection of human health or the environment,
including, but not limited to, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. Sec. 9601 et seq.), the
-- ---
Hazardous Material Transportation Act (49 U.S.C. Sec. 1801 et seq.), the
-- ---
Federal Water Pollution Control Act (33 U.S.C. Sec. 1251 et seq.), the
-- ---
Resource Conservation and Recovery Act of 1976 (42 U.S.C. Sec. 6901 et
--
seq.), the Clean Air Act (42 U.S.C. Sec. 7401 et seq.), the Toxic
--- -- ---
Substances Control Act (15 U.S.C. Sec. 2601 et seq.), and the Federal
-- ---
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.), as
-- ---
each of these laws may have been amended through the date of this Lease,
and any analogous state or local statutes and the regulations promulgated
pursuant thereto.
-22-
(d) "Pre-Closing Substances" means any Contaminants which were
present, or Released in, on, under or from the Demised Premises prior to
the date of this Lease.
(e) "Release" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, leaching, or migration into the
environment, including the movement of any Contaminant or other substance
through or in the air, soil, surface water, groundwater, or property.
(f) "Remedial Action" means any action required under any
Environmental Laws to (i) clean up, remove, treat, or in any other way
address any Contaminant in the environment, (ii) prevent the Release or
threatened Release, or minimize the further Release of any Contaminant so
it does not migrate or endanger or threaten to endanger public health or
welfare or the environment, or (iii) perform pre-remedial studies and
investigations and post-remedial monitoring and care.
26.2. (a) Landlord shall indemnify, defend and hold harmless Tenant and
any person claiming by or through Tenant (collectively the "Environmental
Indemnitees") from and against any and all expense (including, without
limitation, reasonable attorney fees and consultant fees), loss, judgment
or other liability suffered or incurred in connection with any claims,
suits, fines, governmental inquiries, requirements (including legally
required Remedial Action), or orders by reason of or in connection with the
presence, Release or threatened Release of any Pre-Closing Substance on,
in, under or from the Demised Premises, or of any Contaminants from offsite
sources onto or under the Demised Premises after the date of this Lease;
provided, however, that this indemnity shall not cover any expense, loss,
judgment or other liability which arises from the Release or threatened
Release of any Contaminants caused by the activities of Environmental
Indemnitees on, in, under or from the Demised Premises on or after the date
of this Lease.
(b) The indemnification rights and obligations set forth in Section
26.2(a) shall survive the expiration of this Lease; provided, however, that
any indemnification by Landlord contained in Section 26.2(a) with respect
to the presence, Release or threatened Release of Contaminants from offsite
sources shall cease in the event Tenant purchases the Demised Premises.
(c) The maximum aggregate amount of indemnification for which
Landlord shall be liable under this Article 26, (including the amount of
the Escrow Fund (as defined in the Escrow Agreement)), shall not exceed
Twelve Million Dollars ($12,000,000).
26.3. The liabilities and obligations of Landlord with respect to the
environmental indemnity provisions set forth in Section 26.2 shall be subject to
the following:
(a) If an Environmental Indemnitee obtains any knowledge of, or
receives any notice with respect to, the occurrence of any event or the
existence of any action by any person, including any formal or informal
inquiry by any person or governmental agency,
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which the Environmental Indemnitee is aware, in the exercise of reasonable
discretion, could form the basis for a claim for indemnification under
Section 26.2 ("Indemnification Event"), the Environmental Indemnitee shall
promptly notify the Landlord in writing.
(b) Unless it reasonably believes that it is required to do so by
applicable law or regulation, none of the Environmental Indemnitees shall
give notice to any governmental authority of any Indemnification Event
unless the Landlord shall have given its prior written consent to the
giving of such notice; provided, however, that Landlord's consent shall not
be unreasonably withheld. The Environmental Indemnitees shall give
Landlord prior written notice and a description of any proposed discussions
between Tenant, its representatives and advisors and any governmental
authority relating to an Indemnification Event, and Landlord shall be
entitled to participate in such discussions.
(c) Except to the extent that an Environmental Indemnitee
reasonably believes that it is required to do so by applicable law, no
Environmental Indemnitee shall undertake any Remedial Action in respect of
any Pre-Closing Substances, without the prior written consent of Landlord.
(d) If the Environmental Indemnitee and Landlord agree or the
Landlord determines in its sole judgment that any Remedial Action is
legally required in respect of any Pre-Closing Substances or if any
judicial or governmental authority, including but not limited to, the U.S.
Environmental Protection Agency and the Ohio Environmental Protection
Agency, requires any such Remedial Action, or with respect to remedial
activities required by the Escrow Agreement, Landlord shall undertake and
have the right to control the performance of all aspects of any such
Remedial Action.
(e) The Environmental Indemnitees will cooperate with Landlord's
exercise of its right to visit, inspect and enter upon any property
concerning which a claim for indemnification is sought hereunder, to
conduct any environmental tests as Landlord may require in respect of any
Indemnification Event and to conduct any required Remedial Action in
connection with the Pre-Closing Substances, provided Landlord exercises
reasonable care not to interfere with the normal business operations of
Tenant, and the Environmental Indemnitees will promptly deliver to Landlord
copies of any environmental reports, studies, surveys, test data,
assessments, cost estimates and similar information available to the
Environmental Indemnitees relating to any Indemnification Event.
(f) In connection with any claim asserted by any person against any
Environmental Indemnitee with respect to which such Environmental
Indemnitee is entitled to indemnification under Section 26.2, Landlord
shall: (1) promptly assume the defense of such claim and give notice to the
Environmental Indemnitees of its assumption of such defense; (2) promptly
retain legal counsel of its choosing in connection with such defense; and
(3) keep all Environmental Indemnitees informed and consult with each
Environmental Indemnitee in connection with the defense of any such claim.
Each Environmental Indemnitee retains the right, but not the obligation, to
employ its own counsel and to participate in the defense of any such claim,
the cost of which shall be the
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sole responsibility of such Environmental Indemnitee unless Landlord has
not promptly provided a defense in which case Section 26.3(g) applies.
Landlord shall have the authority to settle or compromise any action or
proceeding pending or threatened against any Environmental Indemnitee
without the prior consent of such Environmental Indemnitee, unless as a
result of such settlement or compromise: (i) injunctive or other equitable
relief would be imposed against such Environmental Indemnitee; (ii)
monetary damages would be awarded against any Environmental Indemnitee
which Landlord will not pay in full contemporaneously with the execution of
the settlement or compromise; or (iii) any Environmental Indemnitee would
be deemed thereby to admit to any wrongdoing.
(g) If Landlord fails or refuses promptly to assume the defense of
any claim relating to an Indemnification Event and promptly to retain
counsel therefor, then the Environmental Indemnitees may, but shall not be
required to, participate in the defense of such claim with counsel and
other experts of their own choice, and the Environmental Indemnitees' costs
in connection with such defense shall be borne by Landlord if it is
determined that Landlord is liable for indemnification hereunder in respect
of such claim.
26.4. If requested by Landlord, any Environmental Indemnitee shall
cooperate with the Landlord and its counsel in contesting any claim which the
Landlord elects to contest or, if appropriate, in making any well grounded
counterclaim against the person asserting the claim, or any well grounded cross-
claim against any person, and further agrees to take such other actions as
reasonably may be requested by an indemnifying party to reduce or eliminate any
loss or expense for which the Landlord would have responsibility. The Landlord
will reimburse the Environmental Indemnitee for any expenses including
reasonable attorney fees in reviewing the propriety of any proposed counterclaim
or cross claim incurred by it in so cooperating or acting at the request of the
Landlord.
26.5. (a) Except in compliance with all applicable Environmental Laws and
as otherwise specifically set forth in this Article 26, Tenant warrants
that Tenant shall not cause or permit any Contaminant to be used, treated,
stored, generated, handled or Released on, in, under or from the Demised
Premises by Tenant, Tenant's officers, directors, agents, subagents,
employees, contractors, subcontractors, licensees, invitees, successors or
assigns (collectively the "Tenant Group"). Tenant shall indemnify, defend
and hold harmless Landlord and any person claiming by or through Landlord
from and against any and all expense (including, without limitation,
reasonable attorney fees and consultant fees), loss, judgment or other
liability suffered or incurred in connection with any claims, suits, fines,
governmental inquiries, requirements (including legally required Remedial
Action), or orders by reason of or in connection with Tenant Group causing
the presence, Release or threatened Release on or after the date of this
Lease of any Contaminants on, in, under or from the Demised Premises,
provided, however, that this indemnity shall not cover any expense, loss,
judgment or other liability which arises from the presence, Release or
threatened Release of any Contaminants on, in, under or from the Demised
Premises prior to the date of this Lease.
-25-
(b) If Tenant becomes obligated pursuant to this Section 26.5 to
indemnify Landlord or any person claiming by or through Landlord for Tenant
Environmental Damages, Tenant shall promptly, at its sole expense, take any
and all necessary actions, including but not limited to any Remedial
Actions, to return the Premises to the condition existing before the
occurrence of any Tenant Environmental Damages caused by Tenant or the
Tenant Group. The indemnification rights and obligations set forth in this
Section 26.5 shall survive the expiration of this Lease.
26.6 Except for any claim, damage or liability which has been proximately
caused by Tenant Group, Landlord releases the Tenant Group from any claims,
whether for contribution or otherwise, it may have during the term of this Lease
or thereafter in the future arising under 42 U.S.C. Sections 9607 & 9613 or any
other Environmental Laws with respect to Pre-Closing Substances or with respect
to other Contaminants migrating from offsite sources onto or under the Premises
after the date of this Lease; provided, however, that the provisions of this
Section 26.6 shall have no effect in the event Tenant purchases the Demised
Premises.
26.7 Tenant hereby grants entry and access to the Site to Landlord and/or
Landlord's agents, employees, representatives and contractors, as necessary, to
conduct the Remediation (as defined in the Escrow Agreement). Tenant shall not
materially interfere with Landlord's conduct of the Remediation and Landlord
shall use reasonable care in its conduct of the Remediation to not materially
interfere with Tenant's normal business operations at the Demised Premises.
Landlord shall have no liability to Tenant for any loss, damage, expense or
other liability arising as a result of interference with Tenant's normal
business operations at the Demised Premises in the conduct on the Remediation by
Landlord if Landlord has used reasonable best efforts to minimize disturbance of
Tenant's ability to conduct business at the Demised Premises.
ARTICLE 27
----------
CERTIFICATES
------------
Either party shall, without expense to the other, at any time and from time
to time hereafter, within ten (10) days after written request of the other,
certify by written instrument duly executed and acknowledged to any mortgagee or
purchaser, or proposed mortgagee or proposed purchaser, or any other person,
firm, partnership or corporation specified in such request: (a) as to whether
this Lease has been supplemented or amended, and if so, the substance and manner
of such supplement or amendment; (b) as to the validity and force and effect of
this Lease, in accordance with its tenor as then constituted; (c) as to the
existence of any default hereunder; (d) as to the commencement and expiration
dates of the Term of this Lease; and (e) as to any other matters as may
reasonably be so requested. Any such certificate may be relied upon by the
party requesting it and any other person, firm, partnership or corporation to
whom the same may be exhibited or delivered, and the contents of such
certificate be binding on the party executing same.
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ARTICLE 28
----------
GOVERNING LAW
-------------
This Lease and the performance hereof shall be governed, interpreted,
construed and regulated by the substantive laws of the State of Ohio.
ARTICLE 29
----------
PARTIAL INVALIDITY
------------------
If any term, covenant, condition or provision of this Lease or the
application thereof to any person or circumstance shall, at any time or to any
extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term, covenant, condition and provision of this Lease shall be
valid and be enforced to the fullest extent permitted by law.
ARTICLE 30
----------
SHORT FORM LEASE
----------------
The parties agree that this Lease shall not be recorded, provided, however,
that the parties will, at any time, at the request of either one, promptly
execute duplicate originals of an instrument, in recordable form, which will
constitute a short form of Lease, setting forth a description of the Demised
Premises, the Term of this Lease and Tenant's option to purchase the Demised
Premises, except that the rental, purchase price and/or terms of the option to
purchase and any other economic terms or provisions hereof, shall not be set
forth therein.
ARTICLE 31
----------
ARBITRATION
-----------
Except as provided in Section 7.13, claims, disputes or other matters in
question between the parties to this Lease arising out of or relating to this
Lease or breach thereof shall be subject to and decided by arbitration in
accordance with the rules of the American Arbitration Association currently in
effect, unless the parties mutually agree otherwise, and in accordance with the
following:
-27-
(a) Demand for arbitration shall be filed in writing with the other
party to this Lease and with the American Arbitration Association. A
demand for arbitration shall be made within a reasonable time after the
claim, dispute or other matter in question has arisen. In no event shall
the demand for arbitration be made after the date when institution of legal
or equitable proceedings based on such claim, dispute or other matter in
question would be barred by the applicable statutes of limitations.
(b) Any arbitration arising out of or relating to this Lease shall
include, by consolidation, joinder or joint filing, any additional persons
or entities not parties to this Lease to the extent reasonably necessary to
the final resolution of the matter in controversy.
(c) All arbitration proceedings shall be heard and decided by three
(3) arbitrators, one selected by each party and the third selected by the
first two arbitrators who shall experienced in matters similar to the
subject of the arbitration. Each party shall be responsible for payment of
its own arbitrator's fees and each party shall pay one-half (1/2) of the
fee for the third arbitrator.
(d) Each party shall be responsible for its own costs and expenses
incurred in connection with the arbitration including, without limitation,
attorney's fees.
(e) Unless the parties otherwise agree, pre-hearing discovery shall
be limited to production of documents and other things, as contemplated by
Rule 34(a) of the Federal Rules of Civil Procedure.
(f) In all arbitration proceedings, the award of the arbitrators
shall not be limited to a single dollar amount, but (i) shall indicate the
arbitrators' decision respect to the various claims, disputes or other
matters in question presented by each party and (ii) shall contain a brief
statement of the reasons supporting the arbitrator's decision.
(g) The award rendered by the arbitrator or arbitrators shall be
final and binding upon all parties, judgment may be entered upon it in
accordance with applicable law in any court having jurisdiction thereof.
(h) The location for arbitration of any and all claims,
controversies or disputes arising out of or relating to this Lease or any
breach thereof shall be Cleveland, Ohio.
ARTICLE 32
----------
INTERPRETATION
--------------
30.1. Wherever herein the singular number is used, the same shall include
the plural, and the masculine gender shall include the feminine and neuter
genders, and vice versa, as the context shall require. The section headings
used herein are for reference and convenience only, and shall
-28-
not enter into the interpretation hereof. This Lease may be executed in
counterparts, each of which shall be an original, but all of which shall
constitute one and the same instrument.
30.2. Whenever this Lease provides that one party hereto agrees to perform
any act upon the request of and "at no expense" to the other party, or similar
words to that effect, such term shall be interpreted to mean that the party
performing such act at the request of the other shall not demand or receive from
the other party any compensation for performing such act.
30.3. Time is of the essence as to any and all times and/or time periods
provided for in this Lease.
ARTICLE 33
----------
ENTIRE AGREEMENT
----------------
The Lease contains the entire agreement of the parties. This Agreement
shall not be modified except by an instrument in writing subscribed to by all
parties.
ARTICLE 34
----------
FURTHER ASSURANCES
------------------
The parties agree to cooperate with each other and to execute and deliver,
without expense to the other, such further documents and assurances as may be
necessary to carry out the purposes of this Lease.
ARTICLE 35
----------
PARTIES
-------
Except as herein otherwise expressly provided, the covenants, conditions
and agreements contained in this Lease shall be binding upon and inure to the
benefit of Tenant and Landlord, Landlord's successors and assigns and Tenant's
permitted successors and assigns.
-29-
ARTICLE 36
----------
COUNTERPARTS
------------
This Lease may be executed in multiple counterparts, all of which shall be
deemed to be an original copy thereof.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands as of
the date first hereinabove written.
WITNESSES: LANDLORD:
Figgie Properties, Inc.
____________________________________ By:________________________________
____________________________________
As to Landlord
TENANT:
Communications Instruments,
Inc. dba Hartman Division of
CII Technologies, Inc.
____________________________________ By:________________________________
____________________________________ And:_______________________________
As to Tenant
-30-
The undersigned hereby assumes and agrees to perform each of Landlord's
obligations under Article 26 hereof as a co-obligor with Landlord. Notices to
the undersigned shall be sent to Landlord's address set forth in Article 25
hereof and the undersigned shall be entitled to the same number of days of
notice to which Landlord is entitled in order to require the undersigned to
perform any obligations under Article 26.
FIGGIE INTERNATIONAL, INC.
By:________________________________
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
BEFORE ME, a Notary Public, in and for said County and State, personally
appeared the above-named Figgie Properties, Inc., a Delaware corporation, by
_________________________, its ___________________, who acknowledged that he did
sign the foregoing instrument and that the same is the free act and deed of said
corporation, duly authorized by appropriate resolutions adopted by the Board of
Directors of said corporation, and his free act and deed personally and as such
officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal on this
_____ day of _______________, 1996.
____________________________________
Notary Public
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STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
BEFORE ME, a Notary Public, in and for said County and State, personally
appeared the above-named Communications Instruments, Inc. dba Hartman Division
of CII Technologies, Inc., a corporation, by its Chairman and its Secretary, who
acknowledged that they did sign the foregoing instrument and that the same is
the free act and deed of said corporation, duly authorized by appropriate
resolutions adopted by the Board of Directors of said corporation, and their
free act and deed personally and as such officers.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal on this
_____ day of _______________, 1996.
____________________________________
Notary Public
This instrument prepared by:
Bernard D. Goodman, Esq.
Attorney at Law
Benesch, Friedlander, Coplan & Aronoff P.L.L.
2300 BP Building
200 Public Square
Cleveland, Ohio 44114-2378
Telephone: (216) 363-4500
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EXHIBIT C
The Approved Title Exceptions shall not prevent the use of the Demised Premises
for substantially the same purposes for which the Demised Premises are now being
used by Hartman.
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