EXHIBIT 10.4
LEASE AGREEMENT
INDUSTRIAL/WAREHOUSE
BY AND BETWEEN
WESTON PROPERTY INVESTMENTS XV, LTD. ("Landlord")
and
ERICO PRODUCTS, INC.("Tenant")
Dated this 13th day of September, 2000
LEASE AGREEMENT
INDUSTRIAL/WAREHOUSE
INDEX
ARTICLE PAGE
I PREMISES
Section 1.1 Leased Premises.................................................. 1
Section 1.2 Parking.......................................................... 1
Section 1.3 Construction and Condition of Premises........................... 1
II TERM
Section 2.1 Term of Lease.................................................... 1
Section 2.2 Delayed Occupancy................................................ 1
Section 2.3 Early Occupancy.................................................. 2
Section 2.4 Surrender of Possession.......................................... 2
Section 2.5 Holding Over..................................................... 2
III RENT
Section 3.1 Base Rent........................................................ 2
Section 3.2 Late Charges (Graduated)......................................... 2
IV UTILITIES
Section 4.1 Utilities........................................................ 2
Section 4.2 Interruption of Services......................................... 2
V USE OF PREMISES
Section 5.1 Permitted Use.................................................... 3
Section 5.2 Covenants Regarding Use.......................................... 3
Section 5.3 Access to and Inspection of the Premises......................... 3
Section 5.4 Compliance with Laws............................................. 3
Section 5.5 Compliance with Building Rules and Regulations................... 3
Section 5.6 Environmental Matters............................................ 3-6
VI MAINTENANCE, REPAIRS AND ALTERATIONS
Section 6.1 Landlord's Obligations........................................... 6
Section 6.2 Tenant's Obligations............................................. 6
Section 6.3 Landlord's Right................................................. 6
Section 6.4 Alterations or Improvements...................................... 6-7
Section 6.5 Trade Fixtures................................................... 7
Section 6.6 Liens............................................................ 7
VII LIABILITY AND INSURANCE
Section 7.1 Liability and Insurance.......................................... 7-8
Section 7.2 Waiver of Subrogation............................................ 8
Section 7.3 Loss or Damage to Property....................................... 8
VIII DESTRUCTION
Section 8.1 Casualty Damage and Restoration.................................. 8
IX DEFAULTS; REMEDIES
Section 9.1 Default.......................................................... 8-9
Section 9.2 Remedies......................................................... 9
Section 9.3 Repeated Default................................................. 9
Section 9.4 Remedies Cumulative.............................................. 9
Section 9.5 Rent Demand/Accord and Satisfaction.............................. 9
Section 9.6 Mitigation of Damages............................................ 9
X ASSIGNMENT AND SUBLETTING
Section 10.1 Assignment and Subletting........................................ 10
XI NOTICE AND PLACE OF PAYMENT
Section 11.1 Notices.......................................................... 10
Section 11.2 Place of Payment................................................. 10
XII SUBORDINATION, ATTORNMENT, NON-DISTURBANCE AND ESTOPPEL
Section 12.1 Subordination.................................................... 10
Section 12.2 Attornment....................................................... 10
Section 12.3 Non-Disturbance.................................................. 10
Section 12.4 Estoppel Certificate............................................. 10-11
XIII SIGNAGE
Section 13.1 Signage.......................................................... 11
XIV FINANCING
Section 14.1 Landlord Financing............................................... 11
Section 14.2 Annual Financial Statements...................................... 11
XV LANDLORD'S RIGHT TO RELOCATE TENANT
Section 15.1 Relocation....................................................... 11
XVI WAIVERS
Section 16.1 No Waiver By Landlord............................................ 11
Section 16.2 Waiver of Jury................................................... 11
XVII EMINENT DOMAIN/CONDEMNATION
Section 17.1 Eminent Domain/Condemnation...................................... 11
XVIII MISCELLANEOUS
Section 18.1 Entire Agreement/Exhibits........................................ 12
Section 18.2 Memorandum of Lease.............................................. 12
Section 18.3 Successors and Assigns........................................... 12
Section 18.4 Severability of Invalid Provisions............................... 12
Section 18.5 Choice of Law.................................................... 12
Section 18.6 Duplicates....................................................... 12
Section 18.7 Brokers/Leasing Fees............................................. 12
Section 18.8 Authority of Tenant.............................................. 12
Section 18.9 Certain Words, Gender and Headings............................... 12
Section 18.10 Landlord Liability............................................... 12
Section 18.11 Attorneys' Fees................................................. 13
Section 18.12 Force Majeure.................................................... 13
Section 18.13 Exhibiting the Premises.......................................... 13
Section 18.14 Examination of Lease............................................. 13
Section 18.15 No Presumption Against Drafter................................... 13
Section 18.16 Guarantee........................................................ 13
EXHIBITS
A LEASE/TENANT DATA
B LAYOUT
C IMPROVEMENTS
D LEASE RIDER
E RULES & REGULATIONS
F GUARANTEE
G OPTION TO PURCHASE
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STANDARD INDUSTRIAL LEASE
ARTICLE I - PREMISES
SECTION 1.1 - LEASED PREMISES
For and in consideration of the rents and covenants herein contained,
Landlord does hereby demise and lease to Tenant and Tenant does hereby lease and
hire from Landlord, for the purposes hereinafter set forth, the Landlord=s
property, including the land, building(s) and improvements located thereon
(hereinafter referred to as the "Premises"), which Premises is more fully
described in Section 2 of "Exhibit A" and outlined in red on the site plan
attached hereto as Exhibit "B". On October 31, 2004, that portion of the
premises labeled "B-1" shall constitute the Premises for the remaining Term of
this Lease, including any Renewal Options which may be subsequently exercised by
the Tenant.
SECTION 1.2 - PARKING
Except as otherwise expressly provided herein, Tenant, its employees,
agents, customers and invitees, shall have the exclusive right to use existing
vehicle parking areas serving the Premises. The Landlord shall have no
responsibility or liability for the security or patrolling of such parking
areas, or for the unauthorized use of such parking spaces by other persons; nor
for any damage or loss of any vehicle while parked on the Premises.
SECTION 1.3 - CONSTRUCTION AND CONDITION OF PREMISES
Landlord shall make no improvements to the Premises except as expressly
set forth in Exhibit "C", hereof. Tenant acknowledges that neither Landlord nor
any broker, agent or employee of Landlord has made any representation or promise
with respect to the Premises except as herein expressly set forth, and no right,
privilege, easement or license is acquired by Tenant except as herein expressly
set forth. Tenant, by taking possession of the Premises, hereby accepts the
Premises as defined and described in Section 2 of Exhibit "A" and further
accepts the Premises "as is", and such taking of possession shall be conclusive
evidence that the Premises (i) are as described in Section 2 of Exhibit "A" and
(ii) are in good and satisfactory condition at the time of such taking of
possession, minor punch list items excepted. Landlord shall deliver the Premises
as shown on Exhibit "B" complete and ready for construction of Tenant's
improvements or occupancy. All Tenant Improvements shall be and remain
Landlord's Property. By execution of this Lease, Tenant hereby acknowledges
receipt of Landlord's Phase I Report for the Premises and further acknowledges
that the Landlord has not made or given any warranties or representations as to
the accuracy of the materials or any statements contained in said Phase I
Report.
ARTICLE II - TERM
SECTION 2.1 - TERM OF LEASE
Except as hereinafter provided, the Commencement Date, Term and
Expiration Date of this Lease shall be as follows:
(a) Commencement Date: September 10, 2000
(b) Term: Five (5) Years, 52 Days
(c) Termination Date: October 31, 2005
(d) Option to Renew: So long as Tenant is not then in
default under the terms of this
Lease beyond any applicable grace
periods, Tenant shall be granted two
(2), five (5) year options to renew
this Lease by providing the Landlord
with twelve (12) months advance
written notice (due by October 31,
2004 and October 31, 2009,
respectively). The monthly rental
rate for each successive five (5)
year renewal period shall be at an
increase of fifteen percent (15%)
over the annual rent for the
respective prior term of this Lease;
specifically:
First option term monthly rent:
November 1, 2005 to October 31,
2010, $55,392.35;
Second option term monthly rent:
November 1, 2010 to October 31,
2015, $63,639.35.
(e) Option to Terminate: So long as Tenant is not then in
default under the terms of this
Lease beyond any applicable grace
periods, Tenant shall have the right
to terminate this Lease at the end
of the forty-second (42nd) Lease
month (April 30,2004) by providing
the Landlord with nine (9) months
advance written notice due by July
30, 2003. Along with said notice,
the Tenant shall remit to the
Landlord a Lease buy-out payment of
$250,000 by bank check or certified
check made payable to Landlord. If
the Tenant does not exercise this
option by the date specified (July
31, 203), this Lease shall remain in
full force and effect through the
fifth (5th) lease year, ending on
October 31, 2005.
(f) Option to Purchase: So long as Tenant is not then in
default under the terms of this
Lease beyond any applicable grace
periods, Tenant shall, on November
1, 2005, have the option to purchase
the Premises on an "AS IS, WHERE IS,
WITH ALL FAULTS" basis for the net
sum to Landlord of $5,938,432.00,
the business terms of such Option to
Purchase are outlined on Exhibit "G"
hereof (which is attached hereto and
made a part hereof) and by providing
the Landlord with twelve (12) months
advance written due October 31,
2004) of Tenant's intent to exercise
this purchase option.
SECTION 2.2 - DELAYED OCCUPANCY (INTENTIONALLY OMITTED)
SECTION 2.3 - EARLY OCCUPANCY
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If, at the Tenant's request, Landlord shall make the Premises available
to Tenant prior to the Commencement Date for the purpose of installing fixtures
and equipment or moving inventory into the Premises, then all of the terms and
provisions of this Lease shall be in full force and effect from and after the
date that Tenant shall first occupy said Premises or any part thereof, except
that Tenant shall not be required to pay "Base Rent" but will be required to pay
all operating expenses therefor. .
SECTION 2.4 - SURRENDER OF POSSESSION
Upon the expiration of the term or earlier termination of this Lease,
Tenant shall surrender and deliver possession of the Premises to Landlord
together with all additions, alterations, improvements and replacements thereto
(whether made by Tenant or Landlord and without any compensation or credit to
Tenant) in broom-clean condition and in good condition and repair, excepting
only ordinary wear and tear and loss by insured casualty. Upon the expiration of
the Term of this Lease, all signs must be removed from the Premises and the
Premises returned to its condition at the time of the affixing of the signs to
the Premises. If any of Tenant's fixtures, equipment or other personal property
kept in or about the Premises shall not have been removed therefrom prior to the
surrender of the Premises hereunder, such personal property, at the option of
Landlord, shall be deemed abandoned by Tenant and title thereto shall pass to
Landlord without payment, notice or credit by Landlord to Tenant, and Landlord
may store and/or dispose of same as it deems fit without any liability to Tenant
or any other person.
SECTION 2.5 - HOLDING OVER
If Tenant shall remain in possession of all or any part of the Premises
after the expiration of the term of this Lease, Tenant shall be deemed a tenant
of the Premises from month-to-month, at a monthly rental equal to twice the
monthly rental then being paid by Tenant and subject to all the other terms and
conditions of the within Lease which are not inconsistent with such
month-to-month tenancy. Nothing herein contained shall be deemed a consent to or
approval of, or to excuse, any holding over by Tenant without Landlord's prior
written consent or without a new written agreement between the parties.
Negotiations shall not be construed as an agreement to renew or enter into a new
lease agreement. Upon any such holding over Tenant shall hold harmless and
indemnify Landlord from and against any and all damages, costs and expenses
sustained by Landlord as a result of Tenant's retention of possession of the
Premises or any portion thereof. Tenant's occupancy shall be extended hereunder
for the period, if any, during which environmental remediation is taking place
due to the activities of Tenant during the term of the Lease.
ARTICLE III - RENT
SECTION 3.1 - BASE RENT AND ADDITIONAL RENT
Tenant shall pay, (i) as base rent for the Premises, the sum of
$48,107.50 per month (the "Base Rent") which sum(s) shall be paid in equal
consecutive monthly installments, and (ii) the sums when due for all utilities,
operating expenses, taxes, insurance, and any and all increase thereof as well
as all other sums designated as "additional rent" under this lease. Within
thirty (30) days of payment of taxes, Tenant shall provide Landlord with
evidence, reasonably satisfactory to Landlord, of proof of payment thereof.
Landlord shall not be required to accept any such sums paid if Tenant is in
default hereunder. The monthly installments are payable in advance, without
demand, deduction or offset, on or before the first day of each and every
calendar month during the term of this Lease. Any such amount payable with
respect to a period of time beginning prior to the commencement or ending after
the expiration of the term hereof shall be prorated. Upon execution of this
Lease by Tenant, Tenant shall pay one for the first month's Base Rent due
hereunder to Landlord. The monthly Lease payments as provided for herein, shall
commence on December 1, 2000 and continue thereafter to be paid on the first day
of each month of this Lease until termination thereof. Notwithstanding anything
to the contrary provided for herein, the Tenant shall be responsible for all
operating expenses under this Lease commencing on the Commencement Date of this
Lease and shall continue until termination of this Lease.
SECTION 3.2 - LATE CHARGES (GRADUATED)
All rent and other charges payable under this Lease which are not paid
when due shall be subject to a ten percent (10%) late fee per month commencing
on the third day of the month and thereafter, until paid in full, computed upon
the amount which is in default; not, however, to the exclusion of any other
remedy for breach or default available to Landlord. In the event Landlord is
required to process a check from Tenant that has been returned by the bank due
to any act or omission of Tenant, Landlord shall be entitled to immediate
payment of a handling charge of $50.00 in addition to any late payment charges
and arrearages.
ARTICLE IV - UTILITIES
SECTION 4.1 - UTILITIES
Tenant shall promptly arrange to have put in its name and pay for all
utilities furnished to the Premises from the Commencement Date (September 10,
2000) of the Premises and continuing throughout the term of this Lease and any
extension or holdover periods, including but not limited to, electric, gas,
telephone, antennae, satellite receivers, exterior lighting provided by the
local utility company, water, and sewer charges. Tenant shall also replace, as
necessary, all electric light lamps, bulbs and/or tubes and ballasts serving the
Premises.
SECTION 4.2 - INTERRUPTION OF SERVICES
Tenant understands and acknowledges that any one or more utilities or
other building services may be interrupted by reason of accident, failure of
equipment, emergency or other causes beyond Landlord's control, or may be
discontinued or diminished temporarily by Landlord or other persons until
certain repairs, alterations or improvements can be made; that Landlord does not
represent or warrant the uninterrupted availability of such utilities or
building services and that any such interruption shall not be deemed an eviction
or disturbance of Tenant's right to possession, occupancy and use of the Premise
or any part thereof, or render Landlord liable to Tenant for damages by
abatement of rent or otherwise, or relieve Tenant from obligations to perform
its covenants under this Lease.
ARTICLE V - USE OF PREMISES
SECTION 5.1 - PERMITTED USE
The Premises shall be used solely for the purposes specified in Section
3 of Exhibit "A" in the normal course of business in Tenant's trade or industry
and in accordance with the terms and conditions set forth in this Lease and the
reasonable recommendations of Landlord's insurance underwriters and for no other
purpose or use whatsoever without the prior written consent of Landlord, which
consent may, in Landlord's sole and absolute discretion, be withheld. Tenant
shall not use or occupy, or permit the use or occupancy of the Premises, in any
manner as might constitute a nuisance; or violate the terms and conditions of
this Lease; or any applicable laws,
3
codes, ordinances, rules and regulations; or of any certificate of occupancy
applicable to the Premises; or for any purpose or in any manner liable to cause
damage to the Premises or Building.
SECTION 5.2 - COVENANTS REGARDING USE
In connection with its use of the Premises, Tenant agrees to the
following:
(a) Tenant shall not use the Premises or allow the Premises to be
used in any manner deemed hazardous because of fire risk or otherwise. No
hazardous substance or equipment shall be brought or kept on the Premises or
adjacent areas, or stored or used therein, without prior written consent of
Landlord, except as used in the ordinary course of Tenant's business and at all
times used in accordance with applicable laws. If any of Tenant's operations
produce gases, vapors, odors, smoke, residuary material or noise in violation of
applicable law. Tenant will, on Landlord's written request, forthwith cease such
operation or install ventilating or other apparatus to eliminate such
disturbances. If Tenant installs equipment that unbalances or overloads
electrical equipment or wiring in or about the Premises, it shall correct such
unbalanced or overloaded condition and replace any equipment or wiring thereby
damaged at its own expense. Tenant shall not deposit oil, grease, solvents or
other substances in sewers or drains serving the Premises. In the event of a
spill or release, Tenant shall have such sewers and drains cleaned at its
expense.
(b) Tenant shall not use the Premises, or allow the Premises to be
used, for any purpose or in any manner that would invalidate any policy of
insurance now or hereafter carried on the Building or increase the rate of
premiums payable on any such insurance policy. Tenant, at its sole expense,
shall comply with any and all requirements of any insurance organization or
company necessary for the maintenance of fire and public liability insurance
covering the Premises and the Building at a reasonable cost. Should Tenant fail
to comply with this covenant, Landlord may, at its option, require Tenant to
stop engaging in such activity or to reimburse Landlord as additional rent for
any increase in premiums charged during the term of this Lease on the insurance
carried by Landlord on the Premises and attributable to the use being made of
the Premises by Tenant.
SECTION 5.3 - ACCESS TO AND INSPECTION OF THE PREMISES
Landlord reserves the right to enter the Premises or any part thereof,
at any time in the event of an emergency, and otherwise at reasonable times,
after reasonable notice, to take any and all measures, including inspections,
repairs, alterations, additions and improvements to the Premises or to the
Building, as may be necessary or desirable for the safety, protection or
preservation of the Premises or the Building or the Landlord's interests, or as
may be necessary in order to comply with all laws, orders and requirements of
any governmental authority; or for the purpose of exhibiting same to prospective
tenants, purchasers, lenders, or existing mortgagees.
In the event of an environmental related release, discharge, spill or
other type of contamination, Landlord shall have the unqualified right (but not
the obligation) and without limiting Landlord's other rights under the Lease,
with and after consultation with Tenant, to take immediate responsive action,
including entering the Premises for testing purposes and implementing such
remedial action as it deems necessary or advisable without interference from
Tenant. All reasonable costs and expenses incurred by Landlord in the exercise
of any such rights shall be payable by Tenant upon demand.
SECTION 5.4 - COMPLIANCE WITH LAWS
Tenant shall at its sole cost and expense, comply with all laws,
ordinances, orders, rules and regulations of state, federal, municipal or other
agencies or bodies having jurisdiction relating to the use, conditions and
occupancy of the Premises, provided, however, Tenant shall have no obligation to
make any alteration or improvement to the Premises, or to the building of which
the Premises forms a part, which would constitute a capital improvement, to the
extent that said capital improvements are not necessitated as a result of
Tenant's actions or conduct or Tenant's use and/or operations within or about
the Premises. Notwithstanding the foregoing, if the cost of any capital
improvement(s) exceeds $100,000 Landlord shall have the right to terminate the
Lease upon one hundred eighty (180) days notice unless Tenant agrees in writing
to make such capital improvements at its sole cost and expense.
Tenant shall secure all necessary governmental permits for its use and
occupancy of the Premises as are required from time to time and shall provide
copies of the same to Landlord upon request or whenever a new permit is required
to be obtained.
SECTION 5.5 - COMPLIANCE WITH BUILDING RULES AND REGULATIONS
Rules and regulations governing the use and occupancy of the Building
have been adopted by Landlord for the mutual benefit and protection of the
Building and/or Complex. Tenant shall comply with and conform to the rules and
regulations currently in effect, which are set forth in a schedule attached
hereto, made a part hereof and marked Exhibit "E". Landlord shall have the right
to amend such rules and regulations or to adopt new rules and regulations from
time to time in any manner that it deems necessary or desirable in order to
insure the safety, care, proper maintenance and cleanliness of the Premises and
the preservation of order therein.
SECTION 5.6 - ENVIRONMENTAL MATTERS.
5.6.1 DEFINITIONS
5.6.1.1 HAZARDOUS MATERIAL. Hazardous Material means any substance:
(a) the presence of which requires investigation, notice or
Remediation under any federal, state, or local statute, regulation, ordinance,
order, action, policy or common law; or
(b) which is or becomes defined as a "hazardous material,"
"hazardous waste," "hazardous substance," " regulated substance," "pollutant" or
"contaminant" under any federal, state, or local statute, regulation, rule, or
ordinance or amendments thereto including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. Sections 9601
et seq.), Toxic Substances Control Act (15 U.S.C. Sections 2601 et seq.) and/or
any subsequent or successor laws or regulations and any amendments thereto
and/or the Resource Conservation and Recovery Act (42 U.S.C. Sections 6901 et
seq.); or
(c) which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic, or otherwise hazardous and is or becomes
regulated by any governmental authority, agency, department, commission, board,
agency, or instrumentality of the United States, the State of Ohio or any
political subdivision thereof; or
(d) the presence of which on the Premises causes or threatens to
cause a nuisance upon the Premises or to adjacent properties or poses or
threatens to pose a hazard to the health or safety of persons on or about the
Premises; or
(e) which contains gasoline, diesel fuel, or other petroleum
hydrocarbons; or
(f) which contains Polychlorinated biphenyls (PCBs), asbestos or
urea formaldehyde foam insulation.
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5.6.1.2 ENVIRONMENTAL REQUIREMENTS. Environmental Requirements means
all applicable present and future statutes, regulations, rules, ordinances,
codes, licenses, permits, orders, approvals, plans, authorizations, concessions,
commissions, boards, bureaus, or instrumentalities of the United States, states,
regulatory decrees, judgments, and orders relating to the protection of human
health or the environment, including, without limitation:
(a) All requirements, including but not limited to those
pertaining to reporting, licensing, permitting, investigation, and remediation
of emissions, discharges, pollutants, contaminates, or hazardous or toxic
substances, materials or wastes whether solid, liquid, or gaseous in nature,
into the air, surface water, groundwater, or land, or relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling of chemical substances, pollutants, contaminants, or
hazardous or toxic substances, materials, or wastes, whether solid, liquid, or
gaseous in nature; and
(b) All requirements pertaining to the protection of the health
and safety of employees or the public.
5.6.1.3 ENVIRONMENTAL DAMAGES. Environmental Damages means all claims,
judgments, damages, losses, penalties, fines, liabilities (including strict
liability), encumbrances, liens, costs, and expenses of investigation and
defense of any settlement or judgment, of whatever kind or nature, contingent or
otherwise, matured or un-matured, foreseeable or unforeseeable, including,
without limitation, reasonable attorneys' fees and disbursements and
consultants' and witnesses' fees, any of which are incurred at any time as a
result of the existence of Hazardous Material upon, about, or beneath the
Premises or migrating or threatening to migrate to or from the Premises, or the
existence of a violation of Environmental Requirements pertaining to the
Premises, including without limitation:
(a) Damages for personal injury, or injury to property or natural
resources occurring upon or off the Premises, foreseeable or unforeseeable,
including, without limitation, lost profits, consequential damages, the cost of
demolition and rebuilding of any improvements on real property, interest, and
penalties including, but not limited to, claims brought by or on behalf of
employees of Tenant;
(b) Fees incurred for the services of attorneys, consultants,
contractors, experts, and laboratories and all other costs incurred in
connection with the investigation or remediation of such Hazardous Materials or
violation of Environmental Requirements including, but not limited to, the
preparation of any feasibility studies or reports or the performance of any
cleanup, remediation, removal, response, abatement, containment, closure,
restoration, or monitoring work required by any federal, state, or local
governmental agency or political subdivision or court, or reasonably necessary
to make full economic use of the Premises and any other property in the manner
consistent with its current use or otherwise expended in connection with such
conditions, and including, without limitation, any attorneys' fees, costs, and
expenses incurred in enforcing this agreement or collecting any sums due
hereunder;
(c) Liability to any third person or governmental agency to
indemnify such person or agency for costs expended in connection with the items
referenced herein; and
(d) Diminution in the value of the Premises and adjoining
property, and damages for the loss of business and restriction on the use of or
adverse impact on the marketing of rent-able or usable space or of any amenity
of the Premises and adjoining property.
5.6.2 TENANT'S OBLIGATION TO INDEMNIFY, DEFEND, AND HOLD HARMLESS.
Tenant, its successors, assigns and guarantors agree to indemnify, defend, and
hold harmless the following persons from and against any and all Environmental
Damages arising from activities of Tenant or its employees, agents, contractors,
subcontractors, or guests, licensees, or invitees which (1) result in the
presence of Hazardous Materials upon, about, or beneath the Premises or
migrating to or from the Premises, or (2) result in the violation of any
Environmental Requirements pertaining to the Premises and the activities
thereon, except any Environmental Damages arising from any Hazardous Materials
which existed upon the Premises prior to the Commencement date.
(a) Landlord;
(b) any person who acquires an interest in the Premises in any
manner, including, but not limited to, purchase at a foreclosure sale or
otherwise; and
(c) the directors, officers, shareholders, employees, members,
partners, agents contractors, subcontractors, experts, licensees, affiliates,
lessees, mortgagees, trustees, heirs, devisees, successors, assigns, guests, and
invitees of such persons.
This obligation shall include, but not be limited to, the burden and
expense of the indemnified parties in defending all claims, suits, and
administrative proceedings, including attorneys' fees and expert witness and
consulting fees, even if such claims, suits, or proceedings are groundless,
false, or fraudulent, and conducting all negotiations of any description, and
paying and discharging, when and as the same become due, any and all judgments,
penalties or other sums due against such indemnified persons, and all such
expenses incurred in enforcing the obligation to indemnify. Tenant, at its sole
expense, may employ additional counsel of its choice to associate with counsel
representing the indemnified parties.
5.6.3 TENANT'S OBLIGATION TO REMEDIATE. Notwithstanding the obligation
of Tenant to indemnify Landlord pursuant to this agreement, Tenant shall, upon
demand of Landlord, and at its sole cost and expense, promptly take all actions
to remediate the Premises which are reasonably necessary to mitigate
Environmental Damages of Tenant or its employees, agents, contractors,
subcontractors, or guests, licensees, or invitees or to allow full economic use
of the Premises, or are required by Environmental Requirements, which
remediation is necessitated by the (1) introduction of a Hazardous Material
upon, about, or beneath the Premises or (2) a violation of Environmental
Requirements, either of which is caused by the actions of tenant, its employees,
agents, contractors, subcontractors, guests, invitees, or licensees. Such
actions shall include, but not be limited to, the investigation of the
environmental condition of the Premises, the preparation of any feasibility
studies, reports, or remedial plans, and the performance of any cleanup,
remediation, containment, operation, maintenance, monitoring, or restoration
work, whether on or off the Premises. Tenant shall take all actions necessary to
restore the Premises to the condition existing prior to the introduction of
Hazardous Material upon, about, or beneath the Premises, notwithstanding any
lesser standard of remediation allowable under applicable law or governmental
policies. All such work shall be performed by one or more contractors, selected
by Tenant and approved in advance and in writing by Landlord. Tenant shall
proceed continuously and diligently with such investigatory and remedial
actions, provided that in all cases such actions shall be in accordance with all
applicable requirements of governmental entities. Any such actions shall be
performed in a good, safe, and workmanlike manner and shall minimize any impact
on the business conducted at the Premises. Tenant shall pay all costs in
connection with such investigatory and remedial activities, including, but not
limited to, all power and utility costs, and any and all taxes or fees that may
be applicable to such activities. Tenant shall promptly provide to Landlord
copies of testing results and reports that are generated in connection with the
above activities, and copies of any correspondence with any governmental entity
related to such activities. Promptly upon completion of such investigation and
remediation, Tenant shall permanently seal or cap all monitoring wells and test
holes to industrial standards in compliance with applicable federal, state, and
local laws and regulations, remove all associated equipment, and restore the
Premises to the maximum extent possible, which shall include, without
limitation, the repair of any surface damage, including paving, caused by such
investigation or remediation hereunder. Provided, however, that Tenant shall not
be obligated to remediate
5
environmental damages which result from seepage of Hazardous Materials onto the
Premises from adjacent property unless the presence on the adjacent property was
caused by Tenant or its employees, agents, contractors, subcontractors, guests,
invitees, or licensees.
5.6.4 NOTIFICATION. If Tenant shall become aware of or receive notice
or other communication concerning any actual, alleged, suspected, or threatened
violation of Environmental Requirements, or liability of Tenant for
Environmental Damages in connection with the Premises or past or present
activities of any person thereon, or that any representation set forth in this
agreement is not or is no longer accurate, including but not limited to notice
or other communication concerning any actual or threatened investigation,
inquiry, lawsuit, claim, citation, directive, summons, proceeding, complaint,
notice, order, writ, or injunction, relating to same, then Tenant shall deliver
to Landlord, within ten days of the receipt of such notice or communication by
Tenant, a written description of said violation, liability, correcting
information, or actual or threatened event or condition, together with copies of
any such notice or communication. Receipt of such notice shall not be deemed to
create any obligation on the part of Landlord to defend or otherwise respond to
any such notification or communication.
5.6.5 NEGATIVE COVENANTS.
5.6.5.1 NO HAZARDOUS MATERIAL ON PREMISES. Except in strict compliance
with all Environmental Requirements, , Tenant shall not cause, permit, or suffer
any Hazardous Material to be brought upon, treated, kept, stored, disposed of,
discharged, released, produced, manufactured, generated, refined, or used upon,
about, or beneath the Premises by Tenant, its agents, employees, contractors,
subcontractors, guests, licensees, or invitees, or any other person. Tenant
shall deliver to Landlord copies of all documents that Tenant provides to any
governmental body in connection with compliance with Environmental Requirements
with respect to the Premises, such delivery to be contemporaneous with provision
of the documents to the governmental agency.
5.6.5.2 NO VIOLATIONS OF ENVIRONMENTAL REQUIREMENTS. Tenant shall not
cause, permit, or suffer the existence or the commission by Tenant, its agents,
employees, contractors, subcontractors, guests, licensees, or invitees, or any
other person of a violation of any Environmental Requirements upon, about or
beneath the Premises or any portion thereof.
5.6.5.3 NO ENVIRONMENTAL OR OTHER LIENS. Tenant shall not create or
suffer or permit to exist with respect to the Premises, any lien, security
interest, or other charge or encumbrance of any kind, including without
limitation, any lien imposed pursuant to section 107(f) of the Superfund
Amendments and Reauthorization Act of 1986 (42 U.S.C. Sections 9607(1)) or any
similar state statue to the extent that such lien arises out of the actions of
Tenant, its agents, employees, contractors, subcontractors, guests, licensees,
or invitees.
5.6.6 LANDLORD'S RIGHT TO INSPECT AND TO AUDIT TENANT'S RECORDS.
Landlord shall have the right in its sole and absolute discretion, but not the
duty, to enter and conduct an inspection of the Premises and to inspect and
audit Tenant's records concerning Hazardous Materials at any reasonable time to
determine whether Tenant is complying with the terms of the lease, including but
not limited to the compliance of the Premises and the activities thereon with
Environmental Requirements and the existence of Environmental Damages as a
result of the condition of the Premises or surrounding properties and activities
thereon. If Landlord has reasonable cause to believe Tenant is in default with
respect to any of the provisions of this lease related to Hazardous Materials,
Environmental Requirements, or Environmental Damages, the Landlord shall have
the right, but not the duty, to retain at the sole expense of Tenant an
independent professional consultant to enter the Premises to conduct such an
inspection and to inspect and audit any records or reports prepared by or for
Tenant concerning such compliance. Tenant hereby grants to Landlord the right to
enter the Premises and to perform such test on the Premises as are reasonably
necessary in the opinion of Landlord to assist in such audits and
investigations. Landlord shall use reasonable efforts to minimize interference
with the business of Tenant by such tests, inspections, and audits, but Landlord
shall not be liable for any interference caused thereby.
5.6.7 LANDLORD'S RIGHT TO REMEDIATE. Should Tenant fail to perform or
observe any of its obligations or agreements pertaining to Hazardous Materials
or Environmental Requirements, then Landlord shall have the right, but not the
duty, without limitation upon any of the rights of Landlord pursuant to this
agreement, to enter the Premises personally or through its agents, consultants,
or contractors and perform the same. Tenant agrees to indemnify Landlord for the
costs thereof and liabilities therefrom as set forth in Paragraph 5.6.2.
5.6.8 LANDLORD'S OBLIGATION TO REMEDIATE. Landlord agrees to remediate
all Environmental Damages (1) caused by Landlord, its agents, employees,
contractors, subcontractors, guests, licensees, or invitees, or (2) not so
caused but arising prior to Commencement Date hereof and not caused by Tenant,
its agents, employees, contractors, subcontractors, guests, licensees, or
invitees.
5.6.9 LANDLORD'S OBLIGATION TO INDEMNIFY, DEFEND, AND HOLD HARMLESS
CONCERNING ENVIRONMENTAL MATTERS. Landlord, its successors, assigns, and
guarantors, agree to indemnify, defend, reimburse, and hold harmless the
following persons from and against any and all Environmental Damages arising
from activities of Landlord or its employees, agents, contractors,
subcontractors, guests, licensees, or invitees; or which occurred prior to the
Commencement Date (and were not caused by Tenant, its agents, employees,
contractors, subcontractors, guests, licensees, or invitees) which (1) result in
the presence of Hazardous Materials upon, about, or beneath the Premises or
migrating to or from the Premises, or (2) result in the violation of any
Environmental Requirements pertaining to the Premises and the activities
thereon:
(a) Tenant;
(b) the directors, officers, shareholders, employees, partners,
agents contractors, subcontractors, experts, licensees, affiliates, lessees,
mortgagees, trustees, heirs, devisees, successors, assigns, and invitees of
Tenant.
This obligation shall include, but not be limited to, the burden and
expense of the indemnified parties in defending all claims, suits, and
administrative proceedings, including attorneys' fees and expert witness and
consulting fees, even if such claims, suits, or proceedings are groundless,
false, or fraudulent, and conducting all negotiations of any description, and
paying and discharging, when and as the same become due, any and all judgments,
penalties or other sums due against such indemnified persons, and all such
expenses incurred in enforcing the obligation to indemnify. Landlord, at its
sole expense, may employ additional counsel of its choice to associate with
counsel representing Tenant.
5.6.10 NO STORAGE TANKS WITHOUT WRITTEN APPROVAL. Tenant agrees that it
will not install any Aboveground Storage Tanks (ASTs) or Underground Storage
Tanks (USTs) or waste water treatment facilities or other similar facilities
upon, about or beneath the Premises which contain materials which, if known to
be present in soil or groundwater, would require cleanup, remediation,
containment, operation, maintenance, monitoring, or restoration work, whether
upon, about or beneath the Premises or adjacent properties, without prior
written approval of Landlord. Approval shall be granted or denied at Landlord's
sole discretion.
5.6.11 SURVIVAL OF ENVIRONMENTAL OBLIGATIONS. The obligations of
Landlord and Tenant as set forth in Paragraph 5.6 and all of its subparagraphs
shall survive termination of this lease and the expiration of the term.
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ARTICLE VI - MAINTENANCE, REPAIRS AND ALTERATIONS
SECTION 6.1 - LANDLORD'S OBLIGATIONS.
(a) Except as otherwise expressly provided in this Lease, Landlord
shall, at Landlord's sole cost and expense, maintain and make all necessary
repairs and replacements to the exterior structure of the Building (including
the exterior walls, metal roof deck and the attached exterior roofing system,
gutters, downspouts and foundations) and interior structural supports, so as to
keep same in compliance with building, zoning and fire codes, and all other
applicable laws and otherwise in good order and repair.
(b) Any and all loss, injury, breakage or damage to the Premises
or the Building of which they are a part, caused, directly or indirectly, by
Tenant or its agents, contractors, employees and invitees, including individuals
and persons making deliveries to or from the Premises, except to the extent that
the foregoing is inconsistent with the provisions of the "Waiver of Subrogation"
set forth in Section 7.2 of this Lease, shall be repaired by Landlord at the
sole expense of Tenant. Payment of the cost of such repairs by Tenant shall be
immediately due and payable as additional rent. This provision shall not be in
limitation of any other rights and remedies which Landlord has or may have in
such circumstances.
SECTION 6.2 - TENANT'S OBLIGATIONS.
(a) Except as otherwise expressly provided in this Lease, Tenant
shall, at Tenant's sole cost and expense, keep and maintain the interior of the
Premises and all non-common fixtures and equipment therein, including, but not
limited to, all plumbing, HVAC equipment and ducts attached thereto, (including
any such equipment which may be mounted outside the Premises and which serves
Tenant exclusively); exposed electrical, gas, water and sewer pipes, lines and
connections within the Premises; fire extinguishers; interior wall, ceiling and
floor surfaces and coverings; dock bumpers, dock lift and seals; cranes; all
exterior lighting and components thereof, including, without limitation, all
bulbs, poles and their bases, globes and wiring; window frames and glass; all
doors (including overhead and sliding); and all signs of Tenant erected on the
Building or outside of the Premises in good repair, order and condition, making
all repairs and replacements thereto as may be required; make all necessary
repairs and replacements and perform all necessary maintenance and custodial
service with regard to the Premises, including, without limitation, parking
lots, driveways and sidewalks, water, sewer, and sprinkler lines and fixture
related thereto located in, on or about the Premises ; remove any snow and ice;
landscaping and all ground maintenance, (i.e., lawn mowing, weed control, etc.)
which may be required. All repairs and replacements shall be in quality equal to
or better than the original equipment, materials or work. Tenant shall at all
times maintain sufficient heat in the Premises to prevent freezing of sprinkler
and water lines. If Tenant installs or moves partitions or walls within the
Premises, Tenant shall make, at its own expense but subject to Landlord's
approval, all additions to or changes in location of heating, plumbing,
sprinkler or electrical lines and equipment made necessary by those
installations. Tenant shall be responsible for weed control and snow removal
over any sidewalks, stairways, ramps, driveways or dock areas contiguous to the
Premises and over which Tenant has exclusive use or control. Tenant shall
provide and contract for a preventative maintenance program for the HVAC system,
sprinkler systems and all cranes located on the Premises; and further provide
Landlord with a quarterly report thereof.
(b) In the event the HVAC must be replaced during the Term of this
Lease, Landlord and Tenant shall be responsible for the cost of the replacement
of the HVAC based upon the following formula:
1. The portion of the cost for the Tenant shall be the
total cost of the unit times the years remaining for
the initial Term on this Lease (or if exercised, any
extensions thereof) divided by the useful life of the
unit;
2. The portion of the cost for the Landlord shall be the
balance remaining after deducting Tenant's portion
from the total cost of the unit.
(c) If there now is or shall be installed in the Premises or
Building a "sprinkler system", and if any governmental authority or Landlord's
fire insurance carrier require or recommend that any changes, modifications,
alterations or additional sprinkler heads or other equipment be made or supplied
by reason of the Tenant's business or operations, or the location of partitions,
trade fixtures, or other contents of the Premises, or for any other reason, or
if any such changes, modifications, alterations or additional equipment become
necessary to prevent the imposition of a penalty or charge against the full
allowance for a sprinkler system in Landlord's fire insurance premium or rate,
Tenant shall, at the Tenant's expense, promptly make and supply such changes,
modifications, alterations, additional sprinkler heads or other equipment.
SECTION 6.3 - LANDLORD'S RIGHT
If Tenant fails to perform Tenant's obligations under this Lease,
Landlord may (but shall not be required to) enter upon the Premises, after ten
(10) days' prior written notice to Tenant (except for cases of emergency or
imminent threat of damage to person or property where such notice will not be
required) and put the Premises in good order, condition and repair, which shall
include the right to cause the Premises to comply with all requirements set
forth in any applicable building codes and ordinances and the cost thereof,
together with the sum of fifteen percent (15%) of said costs for overhead and
supervision by Landlord, shall become due and payable to Landlord upon demand;
provided, however, if Tenant commences to perform such obligations within such
ten (10) day period and diligently pursues such performance to completion within
a reasonable time and to Landlord's reasonable satisfaction, Landlord shall not
have the right to perform such obligations.
SECTION 6.4 - ALTERATIONS OR IMPROVEMENTS
Provided that any additions, improvements or alterations of
non-structural components of the Premises permitted under this Section 6.4 does
exceed $10,000 on a per project basis. Tenant may make such additions,
improvements or alterations of non-structural components of the Premises without
the advance written approval of the Landlord. With regard to all other
improvements and alterations of non-structural components of the Premises in
excess of $10,000, Tenant hereby agrees to make no additions, improvements or
alterations, nor attach or affix any equipment or fixtures to the Premises or
Building without, in each instance, having obtained the prior written consent of
Landlord to Tenant's plans and specifications, (which response shall not be
unreasonably, withheld or delayed) and also obtaining prior to the commencement
of any work, any building permit(s) and approvals which may be required by any
governmental authority. Tenant shall make said improvements or alterations in
accordance with all applicable laws, insurance regulations and building codes,
in a good and workmanlike manner and in quality equal to or better than the
original construction of the Premises and shall comply with such requirements as
Landlord considers reasonably necessary or desirable, including, without
limitation, requirements as to the manner in which and the times at which such
work shall be done. No material modifications or additions to any previously
approved plans and specifications shall be made without Landlord's prior written
consent, which response shall not be unreasonably withheld or delayed. Tenant
further agrees to promptly deliver to Landlord "as built" plans and
specifications subsequent to the completion of any such alterations or
improvements.
Tenant shall promptly pay all costs attributable to any alterations and
improvements performed by or on behalf of Tenant, and shall indemnify Landlord
against claims asserted as a result thereof, and against any costs or expense
which may be incurred as a result of building code violations attributable to
such work.
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All additions, decorations, fixtures and equipment (except Tenant's
trade fixtures) and improvements in or upon the Premises, shall, unless Landlord
elects to require their removal, become the property of Landlord and shall
remain upon the Premises at the termination of this Lease, without compensation,
allowance or credit to Tenant. If, upon Landlord's demand, Tenant does not
remove said improvements, Landlord may remove the same at Tenant's expense,
including the cost of restoring the Premises to its original condition.
SECTION 6.5 - TRADE FIXTURES
All trade fixtures and equipment, signs, movable partitions, shelving
and like property installed on the Premises by Tenant and all inventory and
other personal property of Tenant, shall be removed by Tenant on the expiration
or earlier termination of this Lease and Tenant shall repair, at its own
expense, any and all damage to the Premises resulting from such removal. If
Tenant fails to remove any and all such trade fixtures, furnishings and other
property from the Premises, then Landlord may remove or otherwise dispose of
same at Tenant's expense, including the cost of restoring the Premises to its
original condition.
SECTION 6.6 - LIENS
Tenant shall not suffer or permit to remain upon all or any part of the
Premises or the Building or Tenant's interest in this Lease any lien for work
performed or materials supplied to or for Tenant and/or to or for the Premises,
or any other lien or encumbrance thereon arising by reason of Tenant's use and
occupancy thereof. Tenant, at its own cost and expense, shall defend Landlord
against any action, suit or proceeding which may be brought on any such lien or
for the enforcement thereof; shall cause any such lien or encumbrance to be
removed and satisfied of record within thirty (30) days after notice of the
filing thereof, and shall indemnify and hold harmless the Premises, the Building
and Landlord against any and all loss, damage, cost, expense or liability by
reason of or in connection with any claims, demands, suits, actions or other
proceedings for the enforcement thereof. In the event such lien cannot be
released and removed through appropriate proceedings within such thirty (30) day
period, Tenant shall cause such lien to be bonded or insured over by a reputable
title insurer or surety reasonably satisfactory to Landlord, or provide Landlord
with a letter of credit, certificate of deposit or other comparable security in
the amount of 125% of the amount of such lien. Tenant thereafter shall be
entitled to contest such lien as long as Tenant shall contest such lien
diligently by appropriate proceedings (provided such contest shall not cause any
sale, foreclosure or forfeiture of the Premises by reason of such nonpayment)
and cause the same to be removed or discharged prior to entry of any order
foreclosing the same. In the event that any such lien is not so released and
removed, bonded over or secured against, or in the event Tenant shall fail to
contest such lien as herein required, Landlord may, upon at least five (5) days'
notice to Tenant, take all action necessary to release and remove such lien and
avail itself of any security provided by Tenant (without any duty to investigate
the validity thereof), and Tenant shall promptly, upon demand, reimburse
Landlord for all sums, costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) incurred by Landlord in connection with
the release and removal of such lien.
ARTICLE VII - LIABILITY AND INSURANCE
SECTION 7.1 - LIABILITY AND INSURANCE
Tenant hereby agrees to indemnify and hold Landlord harmless from and
against any cost, damage, claim, liability or expense (including attorneys'
fees) incurred by or claimed against Landlord, directly or indirectly, as a
result of or in any way arising from Tenant's use and occupancy of the Premises
or in any other manner which relates to the business of Tenant, including the
acts or omissions of Tenant and Tenant's employees, agents, contractors and
invitees. Notwithstanding the foregoing, Tenant shall not be responsible for nor
indemnify Landlord against any cost, damage, claim, liability or expense
(including attorney's fees) arising, directly or indirectly, as a result of the
negligence or misconduct of Landlord or Landlord's agents, employees,
contractors or invitees. Tenant further covenants and agrees that at all times
during the term of this Lease or any renewals or extensions hereof, it shall
maintain in full force and effect, with a financially responsible insurance
carrier licensed to transact business in the jurisdiction in which the Premises
is located and reasonably approved by Landlord, at Tenant's sole cost and
expense, the following policies of insurance:
(a) Comprehensive All Risk General Liability Insurance (including
automobile), against claims for personal injury, wrongful death and property
damage occurring upon or about the Premises, with limits of liability not less
than $2,000,000.00 general aggregate, and with limits of liability not less than
$1,000,000 per occurrence combined single limit for both bodily injury and
wrongful death, including $500,000.00 for property damage per occurrence, with
endorsements naming both Landlord and Landlord's mortgagee(s) as additional
insureds as their respective interests may appear and that such policy shall
remain in full force and effect notwithstanding that the insured has waived its
right of action against Landlord prior to the occurrence of a loss. Upon written
request by Landlord, Tenant shall, within thirty (30) days of such written
request, provide Landlord with true and exact copies of all insurance policies
required under this Lease. Landlord and Tenant agree that any conflict between
any insurance certificates and actual policies shall be resolved in favor of the
policy. Failure to supply the policies within said thirty (30) day period may be
considered an act of default by Landlord.
(b) An all-risk policy of Fire and Extended Coverage insurance on
Tenant's trade fixtures, merchandise, equipment, improvements and all other
personal property located in or comprising a part of the Premises and either
belonging to Tenant or in the care, custody and control of Tenant, and providing
insurance against damage caused by fire, lightning, flood and all other risks
typically included within the coverage provided by an all risk policy. Said
policy of insurance shall be in an amount not less than the replacement value of
Tenant's trade fixtures, merchandise, improvements and other personal property.
(c) Tenant's Contractor's Insurance. Tenant shall require any
contractor of Tenant performing work on the Premises to carry and maintain, at
no expense to Landlord:
(i) Comprehensive general liability insurance, including
contractor's liability coverage, contractual liability coverage, completed
operations coverage, broad form property damage endorsement and contractor's
protective liability coverage, to afford protection with limits, for each
occurrence, of not less than One Million Dollars ($1,000,000.00) and not less
than Two Million Dollars ($2,000,000.00) general aggregate with respect to
personal injury or death, and Five Hundred Thousand Dollars ($500,000.00) per
occurrence with respect to property damage; and
(ii) worker's compensation or similar insurance in form
and amounts required by law.
(d) Tenant's insurance will be written by companies having an A.M.
Best Company rating of A-VII or better (or if an insurer is not rated by A.M.
Best Company, then the insurer must have a financial standing comparable to that
of Industrial Risk Insurance as of the date of this Lease). All forms of
Tenant's liability insurance will name Landlord and its first mortgagee as
additional insureds, this includes, but is not limited to, Pollution and
Remediation Legal Liability; Stop Loss Policies and any other special liability
policy providing coverage for liabilities upon, about or beneath the Premises or
adjacent properties.
8
(e) Tenant shall deliver to Landlord as a condition precedent to
its taking occupancy of the Premises a certificate(s) evidencing the
above-mentioned insurance coverage. Each policy shall contain an endorsement
that will prohibit its cancellation prior to the expiration of thirty (30) days
after written notice of such proposed cancellation has been furnished to
Landlord. Tenant shall deliver to Landlord at least fifteen (15) days prior to
the expiration of any of the policies required to be maintained hereunder, a
certificate(s) evidencing renewal or replacement of same.
(f) In addition to the receipt of a certificate of insurance as
provided in Paragraph 7.1 (e), Landlord reserves the right to request a complete
copy of any and all liability policies providing coverage for liabilities upon,
about or beneath the Premises or adjacent properties. Tenant agrees to provide
Landlord with a complete copy of any and all requested policies within five (5)
business days of such a request.
Landlord makes no representation that the minimum coverages specified
above are adequate to protect Tenant against Tenant's obligations under the
terms of this Lease, and it is Tenant's responsibility to provide additional
coverage as it deems necessary.
SECTION 7.2 - WAIVER OF SUBROGATION
Landlord and Tenant hereby waive all causes of action and rights of
recovery which either has or may have or which may hereafter arise, and on
behalf of any person or entity claiming through or under them by way of
subrogation or otherwise, for any loss or damage to the Building or any portion
thereof, property or operations therein, by reason of fire or any peril insured
against by standard fire and extended coverage insurance, regardless of cause or
origin, including any act of negligence by either party, but only to the extent
of any recovery under any such policy of insurance then in effect, and only if
such waiver shall not invalidate or impair the coverage of any such policy of
insurance. Each party to this Lease shall give to each insurance company which
has issued to it one or more policies of fire and extended coverage insurance,
notice of the terms of the mutual releases contained in this Section 7.2 and
have such insurance policies properly endorsed, if necessary, to prevent the
invalidation of such insurance by reason of the provisions of this Section 7.2.
Landlord and Tenant hereby indemnify the other against any loss or expense,
including reasonable attorney fees, resulting from the failure to obtain such
waiver.
SECTION 7.3 - LOSS OR DAMAGE TO PROPERTY
Tenant hereby agrees that all personal property of every kind or
description which may at any time be kept in or about the Premises including,
but not limited to, motor vehicles, merchandise, fixtures and equipment, shall
be there at the sole risk of Tenant, or at the risk of those claiming under
Tenant, and Landlord shall not be liable for the care, safety or theft of said
property, nor for any damage or injury thereto. In addition, Landlord shall have
no liability for any damage to said property or loss suffered by Tenant arising
directly or indirectly from the bursting, overflowing or leaking of water, sewer
or steam pipes, heating and plumbing fixtures, and roof leaks; electrical wiring
and equipment; heat or cold; gas or odors; any act of any other tenant or
occupant of the Premises; and any other manner whatsoever, unless caused by
Landlord's negligence, but only to the extent not waived by the Waiver of
Subrogation/Waiver of Claims contained in Section 7.2 hereof.
ARTICLE VIII - DESTRUCTION
SECTION 8.1 - CASUALTY DAMAGE AND RESTORATION
In the event of damage to or destruction of the Premises, then the
following provisions shall apply:
(a) If the Premises shall be destroyed or damaged by any cause as
to be unfit in whole or in part for occupancy, and in Landlord's reasonable
judgment, such destruction or damage could reasonably be repaired within ninety
(90) days from the date of said destruction or damage, then Tenant shall not be
entitled to surrender possession of the Premises, nor shall Tenant's liability
to pay rent under this Lease cease without the mutual consent of the parties
hereto; but in the case of any such destruction or damage, Landlord shall repair
the same with all reasonable speed and shall use all reasonable efforts to
complete such repairs within ninety (90) days from the date of said destruction
or damage, and if, during such period, Tenant shall be unable to use all or any
portion of the Premises, a proportionate allowance shall be made to Tenant from
the rent and other charges due from Tenant corresponding to the time during
which and to the portion of the Premises of which Tenant shall be so deprived of
the use on account thereof.
(b) If, in Landlord's reasonable judgment, such destruction or
damage cannot be repaired within ninety (90) days from the date of said
destruction or damage, Landlord shall notify Tenant within thirty (30) days
after the happening of such destruction or damage, and Tenant shall have the
option, within thirty (30) days after the receipt of such notice, to elect
either to terminate this Lease and any further liability hereunder or to extend
the term of the Lease by a period of time equivalent to the time from the
happening of such destruction or damage until the Premises are restored to their
former condition. In the event Tenant elects to extend the term of the Lease,
Landlord shall restore the Premises to their former condition within the time
specified in the notice, and Tenant shall not be liable to pay rent for the
period from the time of such destruction or injury until the Premises are so
restored to their former condition.
(c) In addition to all rights to cancel or terminate this Lease given to
the Tenant in the two (2) preceding paragraphs, if the Premises are destroyed or
damaged during the last twelve (12) months of the term of the Lease or any
extension thereof to the extent of fifty percent (50%) or more of the then value
of the Premises or the Building of which the Premises are a part, then Landlord
shall have the right to cancel and terminate this Lease as of the date of such
damage or destruction by giving notice thereof within thirty (30) days after the
date of said damage or destruction.
ARTICLE IX - DEFAULTS; REMEDIES
SECTION 9.1 - DEFAULTS
The occurrence of any one or more of the following events shall
constitute a default hereunder by Tenant:
(a) Failure by Tenant to pay the rents reserved, charges for
operating expenses or any other charges payable by Tenant hereunder, as and when
due, and such failure shall continue for a period of three (3) business days
after written notice thereof by Landlord to Tenant; or
(b) Failure by Tenant to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by Tenant,
other than the payment of money and such failure shall continue for a period of
thirty (30) days after written notice thereof from Landlord to Tenant; provided,
however, that if the nature of Tenant's default is such that more than thirty
(30) days are reasonably required for its cure, then Tenant shall not be deemed
to be in default if Tenant has commenced such cure within said thirty-day period
and thereafter diligently pursues such cure to completion within a period of not
more than thirty (30) additional days; or
9
(c) (i) The making by Tenant of any general assignment for the
benefit of creditors; (ii) the filing by or against Tenant of a petition to have
Tenant adjudged a bankrupt or a petition for reorganization under any
bankruptcy, insolvency or other laws relating to the readjustment of
indebtedness generally; (iii) the appointment of a trustee or receiver to take
possession of substantially all of Tenant's assets located at the Premises or of
Tenant's interest in this Lease; or (iv) the attachment, execution or other
judicial seizure of substantially all of Tenant's assets located at the Premises
or of Tenant's interest in this Lease; or (v) the Tenant shall violate or fail
to comply with any environmental law, rule or regulation; and, for purposes of
this clause (c), "Tenant" shall include any parent company of Tenant or any
guarantor of some or all of Tenant's obligations under this Lease; or
(d) Tenant shall vacate or abandon the Premises. Tenant's failure
to occupy the Premises for a period of thirty (30) consecutive days shall be
deemed conclusive evidence of abandonment
(e) An assignment or subletting, which requires Landlord's consent
or approval hereunder, of this Lease or any portion of the Premises without
Landlord's prior written consent.
SECTION 9.2 - REMEDIES
In the event of Tenant's default hereunder, Landlord, at Landlord's
option, may terminate this Lease, or without terminating this Lease, re-enter
and retake possession of the Premises by any means permitted by law and in
either event may dispossess Tenant therefrom and neither Tenant nor any person
claiming under or through Tenant shall thereafter be entitled to possession of
the Premises. If Landlord elects to terminate this Lease, or if this Lease is
otherwise terminated pursuant to law by reason of any default on the part of
Tenant, then Tenant shall pay to Landlord, as damages, and Landlord shall be
entitled to recover, the then present value of the rents reserved hereunder for
the entire remainder of the stated term hereof as if this Lease had not been
terminated. No re-entry or retaking of possession of the Premises by Landlord
shall be deemed to be an election by Landlord to terminate this Lease, which
election may be made only by written notice thereof given to Tenant. If Landlord
elects to re-enter and retake possession of the Premises without terminating
this Lease, Tenant shall not be deemed released from its obligations to pay the
rents reserved, charges for operating expenses and taxes and additional and
other charges payable by Tenant hereunder and otherwise to perform the
provisions of this Lease on Tenant's part to be performed hereunder, and all
rents reserved for the entire remainder of the stated term hereof shall, at
Landlord's option, be accelerated and become immediately due and payable.
In no event shall Landlord be required to postpone or delay suit for
such damages or accelerated rents until the date when the term of this Lease
would have expired, or until such rents would have become payable, had not the
within Lease been so terminated or the rents accelerated. If Landlord shall
dispossess Tenant from the Premises as aforesaid, or if Tenant shall abandon or
vacate the Premises, Landlord may, but shall not be obligated to, re-let all or
any part of the Premises for such rents (including any reasonable rent
concessions) and upon such other terms and conditions as Landlord, in Landlord's
sole discretion, deems suitable and acceptable and for any use and purpose which
Landlord deems appropriate. In the event of any such re-letting without the
termination of this Lease, any rents received by Landlord for the Premises shall
be applied first to the costs and expenses incurred by Landlord by reason of
said repossession, retaking and re-letting, including, without limitation,
brokerage costs and reasonable attorneys' fees and the cost of any repairs or
restoration or alterations of said Premises, and then to the amount of rents and
other charges payable by Tenant hereunder. The failure of Landlord to re-let or,
if re-let, to collect the rent under such re-letting, shall not release or
affect Tenant's liability hereunder for all such costs and expenses.
SECTION 9.3 - REPEATED DEFAULT
Notwithstanding anything to the contrary set forth in this Lease, if
Tenant shall be in default in the timely payment of any rent due Landlord
pursuant to this Lease, and if any such default after written notice shall occur
two (2) times in any period of twelve (12) consecutive months, then,
notwithstanding that such default shall have been cured within the period after
notice, as provided in Section 9.1 above, any further similar default within
said twelve (12) month period shall be deemed to be a Repeated Default. In the
event of a Repeated Default, Tenant shall not have the right to cure same and
Landlord, without giving Tenant any further notice and without affording Tenant
any opportunity to cure such default, may exercise any rights or remedies
available to Landlord pursuant to Section 9.2 hereof, including, without
limitation, the right to terminate this Lease or to require Tenant to increase
its security deposit to an amount satisfactory to Landlord, at Landlord's sole
discretion.
SECTION 9.4 - REMEDIES CUMULATIVE
Exercise of any of the remedies of Landlord under this Lease shall not
prevent the concurrent or subsequent exercise of any other remedy provided for
in this Lease or otherwise available to Landlord at law or in equity.
SECTION 9.5 - RENT DEMAND/ACCORD AND SATISFACTION
(a) No payment by Tenant or receipt by Landlord of a lesser amount
than the Rent herein stipulated shall be deemed to be other than on account of
the stipulated Rent nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction. Landlord may accept such check or any partial payment without
prejudice to Landlord's right to recover the balance of such Rent or pursue any
other remedy provided for in this Lease or available at law or in equity to
collect the balance of such Rent.
(b) After the service of any notice or commencement of any suit or
final judgment therein, Landlord may receive and collect any Rent due and such
collection or receipt shall not operate as a waiver of nor affect such notice,
suit or judgment.
SECTION 9.6 - MITIGATION OF DAMAGES
In the event of Tenant's default, the parties hereby agree and
stipulate that once Tenant has completely vacated the Premises and relinquished
possession and control thereof to Landlord, Landlord's efforts to mitigate its
damages need not exceed the following: (a) include availability of space in
regular broker informational mailings; (b) contact adjoining tenants, if any;
and (c) place appropriate signage on the property advertising availability of
space.
ARTICLE X - ASSIGNMENT AND SUBLETTING
SECTION 10.1 - ASSIGNMENT AND SUBLETTING
Tenant hereby agrees not to (i) assign this Lease, or any interest
therein; (ii) sublet the Premises, or any part thereof; (iii) permit the use or
occupancy of the Premises or any part thereof by any person or entity other than
Tenant; and (iv) not to permit any change to be made to the controlling interest
in the business entity which is the Tenant, without first obtaining the written
consent of Landlord, which shall not be unreasonably withheld. Any such transfer
by Tenant without Landlord's written consent shall be void and shall constitute
a default under
10
this Lease. However, no consent shall be required in the case of an assignment
of this Lease or a subletting of all or any part of the Premises to a person or
entity controlling, controlled by or under common control with Guarantor.
If Landlord consents to an assignment or subletting, Tenant and
Guarantor shall nevertheless remain fully and primarily responsible and liable
for the payment of rent and the performance of all of Tenant's obligations under
this Lease; provided, however, that in the event of a default under this Lease,
Landlord may, at its option, collect rent directly from the assignee or
subtenant and such action shall not be construed as a novation or release of
Tenant and Guarantor, nor shall the acceptance of rent by Landlord or
performance of any other obligation under this Lease from or by any person other
than Tenant or Guarantor be deemed to be a waiver by Landlord of any provision
of this Lease nor shall it be deemed to be a consent to an assignment of this
Lease or the subletting of the Premises.
In the event Landlord consents to any assignment or subletting by
Tenant, any option to renew this Lease or right to extend the lease term or any
right of first refusal to which Tenant may be entitled shall automatically
terminate unless otherwise agreed to in writing by Landlord.
If any sublease or assignment is at a rental rate that exceeds the Rent
payable hereunder, such excess rental shall be paid to Landlord when received by
Tenant and Guarantor as additional rent hereunder.
It shall be a condition to any consent by Landlord that Tenant and
Guarantor shall reimburse Landlord upon demand for any and all cost and expense,
including, but not limited to, reasonable attorney fees for the review and
preparation of documents, which may be received by Landlord in connection with
any request for consent to an assignment or subletting, whether or not such
consent is granted. Tenant and Guarantor further agrees that a minimum fee of
$100.00 shall be payable to Landlord for each and every request to consent to an
assignment or sublease, which fee shall be paid simultaneously with such
request.
ARTICLE XI - NOTICE AND PLACE OF PAYMENT
SECTION 11.1 - NOTICES
Any notice or demand which is or may be required by this Lease or by
law shall be in writing and shall be deemed to have been given if delivered in
person or mailed by a nationally recognized overnight courier service or
Registered or Certified Mail, postage prepaid, or sent via facsimile
transmission to the party who is to receive such notice at the address specified
in Section 7 of Exhibit "A", or at such other address as either party may
hereinafter designate by written notice to the other. Notice given by facsimile
will be deemed to be received only upon the sender's receipt of a transmission
report, generated by the sender's facsimile machine, which confirms that the
facsimile was successfully transmitted in its entirety. If Landlord's or
Tenant's telephone number where facsimile transmissions may be received shall
change from the telephone number listed in Section 7 of Exhibit "A", it shall
notify the other party of the new telephone number within three (3) business
days of the change.
SECTION 11.2 - PLACE OF PAYMENT
All rent and other payments required to be made by Tenant to Landlord
shall be delivered or mailed to Landlord's manager at the address specified in
Section 7(f) of Exhibit "A" or any other address Landlord may specify from time
to time by written notice given to Tenant.
ARTICLE XII - SUBORDINATION, ATTORNMENT, NON-DISTURBANCE AND ESTOPPEL
SECTION 12.1 - SUBORDINATION
Landlord shall have the right, at any time, and from time to time, to
mortgage the Premises, the Building, the land upon which the Building is
situated and any underlying leasehold estate, and this Lease and Tenant's
interest hereunder shall be subject and subordinate, in all respects, to any and
all such mortgage(s) which may now or hereafter affect the Premises. Tenant
shall, and hereby agrees to, execute and deliver within ten (10) days after
written request from Landlord or any such mortgagee any instrument or release so
requested by Landlord or any such mortgagee subordinating the within Lease in
favor of any such mortgage(s) or any renewals, extensions, modifications or
replacements thereof, provided that such instrument acknowledges the rights of
Tenant to "non-disturbance" so long as Tenant is not in Default under the terms
of this Lease and in the event that Tenant shall fail or neglect to execute,
acknowledge and deliver any such instrument or release, Landlord may, as
attorney-in-fact of Tenant, execute, acknowledge and deliver the same and Tenant
hereby irrevocably nominates and appoints Landlord as Tenant's attorney-in-fact
for such purpose. In addition, Landlord may assign this Lease, or the rents
reserved hereunder, or both, in Landlord's sole discretion, as additional
security for any such mortgage or otherwise.
SECTION 12.2 - ATTORNMENT
Should any party acquire title to the Premises pursuant to the exercise
of any rights conferred by any mortgage(s) or security interest(s), this Lease
shall not be terminated or affected due to a foreclosure or sale, or similar
proceedings, rather any such party shall be vested with the rights and
obligations conferred upon the Landlord pursuant to this Lease. Tenant hereby
agrees to attorn to any such mortgagee, owner or other person or entity as its
new landlord, and this Lease shall continue in full force and effect as a direct
lease between Tenant and any new landlord, or such other person or entity, upon
all agreements, conditions, covenants and terms herein set forth.
SECTION 12.3 - NON-DISTURBANCE
If and so long as Tenant performs or observes all to the terms,
conditions, covenants and obligations of this Lease required to be performed or
observed by Tenant hereunder, Tenant shall, at all times during the Term hereof,
have the peaceable quiet enjoyment and possession of the Premises without any
interference from Landlord or any person or persons claiming the Premises by,
through or under Landlord. Landlord will use reasonable business efforts to
obtain a Non-Disturbance Agreement from Landlord's existing Mortgage Lender. The
obtaining of such Non-Disturbance Agreement shall not be a condition to the
enforceability of this Lease.
SECTION 12.4 - ESTOPPEL CERTIFICATE
At any time upon request of either party, the other agrees to execute
and deliver within ten (10) days after request, a statement in writing
certifying to any party specified (including, without limitation, any holder or
prospective holder of any mortgage on the Premises or any purchaser or
prospective purchaser of the Premises or any interest therein) to the signing
party=s knowledge (i) that this Lease is unmodified and in full force and effect
(or if there have been modifications, a description thereof), (ii) the date to
which rent, charges for operating expenses and taxes and additional or other
charges have been paid, (iii) that neither party is not in default under any
provision of this Lease (or if in default, the nature thereof in detail), and
(iv) such other matters reasonably requested, and in the event such party shall
fail or neglect to execute and deliver any such certificate, the requesting
party, in addition to any other rights or remedies, may, as
11
attorney-in-fact, execute and deliver such certificate on behalf of the other
party and the other party hereby irrevocably nominates and appoints such party
as its as Tenant's proper and legal attorney-in-fact for such purpose.
ARTICLE XIII - SIGNAGE
SECTION 13.1 - SIGNAGE
Tenant may erect, at its sole cost, appropriate signage advertising
Tenant's business. The size, number, design and location of all signs shall
require Landlord's written approval, which shall not be unreasonably withheld,
prior to installation. All signs shall comply with all requirements of
appropriate governmental authorities and all necessary permits or licenses shall
be obtained by Tenant. Tenant shall maintain all signs in good condition and
repair at all times, and shall save the Landlord harmless from injury to person
or property arising from the erection and maintenance of said signs. Upon
vacating the Premises, Tenant shall remove all signs and repair all damages
caused by such installation and removal.
ARTICLE XIV - FINANCING
SECTION 14.1 - LANDLORD FINANCING
Landlord shall have the right at any time to obtain financing secured
in whole or in part by its interest in the Premises or under this Lease, and in
connection therewith to mortgage or otherwise collaterally transfer its interest
in the Premises or collaterally assign its interest under this Lease.
SECTION 14.2 - ANNUAL FINANCIAL STATEMENTS
Tenant hereby agrees to cooperate with Landlord's existing or potential
mortgagees and/or assignees and to comply with reasonable requests for financial
information.
ARTICLE XV - LANDLORD'S RIGHT TO RELOCATE TENANT
SECTION 15.1 - RELOCATION (INTENTIONALLY OMITTED)
ARTICLE XVI - WAIVERS
SECTION 16.1 - NO WAIVER BY LANDLORD
No waiver of any of the terms, covenants, provisions, conditions, rules
and regulations required by this Lease, and no waiver of any legal or equitable
relief or remedy shall be implied by the failure of Landlord to assert any
rights, or to declare any forfeiture, or for any other reason. No waiver of any
of said terms, provisions, covenants, rules and regulations shall be valid
unless it shall be in writing signed by Landlord. No waiver by Landlord or
forgiveness of performance by Landlord with respect to Tenant or one or more
other tenants of the Building or Complex shall constitute a waiver or
forgiveness of performance in favor of Tenant herein, or any other tenant, or
may be claimed or pleaded by Tenant to excuse a subsequent failure of
performance of any of the terms, provisions, conditions, covenants, rules and
regulations of this Lease.
SECTION 16.2 - WAIVER OF JURY
Landlord and Tenant agree, that to the extent permitted by law and by
applicable policies of insurance, each shall and hereby does waive trial by jury
in any action, proceeding or counterclaim brought by either against the other or
on any matter arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant hereunder, Tenant's use or occupancy of the
Premises and/or any claim of injury or damage.
ARTICLE XVII - EMINENT DOMAIN/CONDEMNATION
SECTION 17.1 - EMINENT DOMAIN/CONDEMNATION
In the event that the Premises, the Building, the Complex or any part
thereof shall at any time after the execution of this Lease be taken for public
or quasi-public use or condemned under eminent domain or conveyed under threat
of such a taking or condemnation, Tenant shall not be entitled to claim, or have
paid to the Tenant, any compensation or damages whatsoever for or on account of
any loss, injury, damage, taking or conveyance of any right, interest or estate
of the Tenant and the Tenant hereby relinquishes and hereby assigns to Landlord
any rights to any such damages. Landlord shall be entitled to claim and have
paid to it for the use and benefit of Landlord all compensation and damages for
and on account of any right, title, interest or estate of Tenant in or to said
Premises, Building and Complex. Tenant upon request of Landlord will execute any
and all releases, transfers or other documents as shall be required by such
public or quasi-public authority to effect and give further evidence and
assurances of the foregoing. Notwithstanding the above, Tenant shall have the
right to make a claim against the condemning authority but not against Landlord
on account of interruption of Tenant's business, moving and relocation expenses
and for depreciation to and removal of Tenant's trade fixtures, provided that
such claim shall not reduce the amount of such claim by the Landlord.
ARTICLE XVIII - MISCELLANEOUS
12
SECTION 18.1 - ENTIRE AGREEMENT/EXHIBITS
This Lease, including all exhibits, riders and addenda, constitute the
entire agreement between the parties; it supersedes all previous understandings
and agreements between the parties, if any, and no oral or implied
representation or understandings shall vary its terms; and it may not be amended
except by a written instrument executed by both parties hereto. All exhibits
referred to in, and attached to, this Lease are hereby made a part of this
Lease.
SECTION 18.2 - MEMORANDUM OF LEASE
This Lease shall not be recorded, but, if requested by either party, a
Memorandum of Lease, setting forth a description of the Premises, the term and
any renewal rights hereof, and such other provisions hereof as may be required
or appropriate for such purposes, excluding any reference to the rent payable
hereunder may be recorded. The cost of preparation and recording shall be borne
by the party requesting same.
13
SECTION 18.3 - SUCCESSORS AND ASSIGNS
This Lease and the respective rights and obligations of the parties
hereto shall inure to the benefit of and be binding upon the successors and
assigns of the parties hereto; provided, however, that an assignment, sublease
or transfer of an interest in the Premises or in Tenant by Tenant in violation
of the provisions of this Lease shall not vest any right, title or interest in
the assigns.
SECTION 18.4 - SEVERABILITY OF INVALID PROVISIONS
If any provision of this Lease shall be held to be invalid, void or
unenforceable, the remaining provisions hereof shall not be affected or
impaired, and such remaining provisions shall remain in full force and effect.
SECTION 18.5 - CHOICE OF LAW
The parties hereto agree that neither of them shall commence any action
whatsoever, at law or in equity, for any matter or assert any claims relating to
or arising from this Lease or the relationship of the parties, in any court
other than those located in the County of Cuyahoga, State of Ohio. The parties
hereto hereby consent to the jurisdiction of the state and federal courts
located in Cuyahoga County, State of Ohio, for the litigation of any claims that
exist or arise between them now or in the future. The parties hereby stipulate
that venue, as well as jurisdiction, is proper only in Cuyahoga County, State of
Ohio.
Notwithstanding the foregoing, any action in forcible entry and
detainer shall be filed in the Court having jurisdiction where the Premises are
located.
SECTION 18.6 - DUPLICATES
This Lease may be executed in several duplicates, all of which shall be
deemed to be but one (1) original Lease.
SECTION 18.7 - BROKERS/LEASING FEES
Tenant represents and warrants to Landlord that no broker procured,
negotiated or was instrumental in procuring, negotiating or consummating this
Lease except as set forth in Section 6 of Exhibit "A" and Tenant further
represents and warrants to Landlord that unless otherwise agreed between
Landlord and the broker(s) aforesaid prior to the date hereof, Landlord shall
not be liable to any broker or other party for any commission or fee or other
compensation in respect of the renewal of this Lease or extension of the term
hereof. Tenant agrees to indemnify and hold harmless Landlord from any claims,
demands, actions, losses, damages, costs, expenses and liabilities that may be
based upon or alleged to be based upon any broker's or other party's commission
or fee or other compensation in respect of this Lease, other than aforesaid,
arising out of or alleged to arise out of any act or omission of Tenant.
Landlord agrees that Tenant is not responsible for any payments due to brokers
listed on Section 6 of Exhibit A.
SECTION 18.8 - AUTHORITY OF TENANT
If Tenant is a corporation or partnership, each individual executing
this Lease on behalf of said corporation or partnership represents and warrants
that (s)he is duly authorized to execute and deliver this Lease on behalf of
said corporation or partnership, in accordance with the bylaws of said
corporation or the provisions of a valid partnership agreement and that this
Lease is binding upon said corporation or partnership.
SECTION 18.9 - CERTAIN WORDS, GENDER AND HEADINGS
As used in this Lease, the word "person" shall mean and include, where
appropriate, an individual, corporation, partnership or other entity; the plural
shall be substituted for the singular and the singular for the plural, where
appropriate; and words of any gender shall include any other gender. The topical
headings of the several paragraphs of this Lease are inserted only as a matter
of convenience and reference, and do not affect, define, limit or describe the
scope or intent of this Lease.
SECTION 18.10 - LANDLORD LIABILITY
It is expressly understood and agreed by Tenant that nothing contained
in this Lease shall be construed as creating any recourse against Landlord or
its agents and employees, personally, for any breach by Landlord of any
covenant, representation, agreement or condition, either expressed or implied,
contained in this Lease, or with regard to any warranty contained in this Lease,
and that so far as Landlord personally is concerned, Tenant and every person now
or hereafter claiming any right under this Lease shall look solely to Landlord's
interest in the Premises for the payment or other satisfaction thereof in the
manner provided in this Lease, but subject to the foregoing, this shall not be
construed in any way so as to affect or impair the legal enforceability of this
Lease.
SECTION 18.11 - ATTORNEYS' FEES
In the event Tenant or Landlord defaults in the performance or
observance of any of the terms, conditions, covenants or obligations of this
Lease, the defaulting party shall reimburse the other party for all reasonable
attorneys' fees and expenses incurred by the defaulting party in securing
compliance with the Lease, terminating the Lease, evicting Tenant (if
applicable) and/or recovering damages. The parties agree that reasonable
attorneys' fees shall be an amount equal to that actually incurred by the
defaulting party, or if such attorney fees were on a contingency fee basis, then
the amount retained by such party's attorney as the fee plus expenses.
SECTION 18.12 - FORCE MAJEURE
In the event that Tenant or Landlord shall be delayed or hindered in or
prevented from doing or performing any act or thing required hereunder by reason
of strikes, lock-outs, casualties, Acts of God, labor troubles, inability to
procure materials, failure of power, governmental laws or regulations, riots,
insurrection, war or other causes beyond the reasonable control of Tenant or
Landlord, as the case may be, then such party shall not be liable or responsible
for any such delays and the doing or performing of such act or thing shall be
excused for the period of delay and the period for the performance of any such
act shall be extended for a period equivalent to the period of such delay.
14
SECTION 18.13 - EXHIBITING THE PREMISES
During the last six (6) months of the term of this Lease, or an
extension thereof or while Tenant is in default of any of its obligations under
this Lease, Landlord may enter the Premises for the purpose of exhibiting said
Premises to prospective tenants (or at any time during the Lease term or any
extension thereof, Landlord may enter the Premises for the purpose of exhibiting
said Premises to prospective purchasers) and putting up the usual "For Rent" and
"For Sale" notices, which shall not be removed, obliterated or hidden by Tenant.
SECTION 18.14 - EXAMINATION OF LEASE
The submission of this Lease for examination does not constitute a
reservation of or option for the Premises, and shall vest no right in either
party. This Lease becomes effective as a Lease only upon execution and delivery
thereof by both parties hereto.
SECTION 18.15 - NO PRESUMPTION AGAINST DRAFTER
Landlord and Tenant understand, agree and acknowledge that this Lease
has been freely negotiated by both parties and that, in any controversy,
dispute, or contest over the meaning, interpretation, validity, or
enforceability of this Lease or any of its terms or conditions, there shall be
no inference, presumption or conclusion drawn whatsoever against either party by
virtue of that party having drafted this Lease or any portion thereof.
SECTION 18.16 - GUARANTEE
This Lease Agreement and the covenants and obligations thereof of the
Tenant are hereby guaranteed by the entity identified in Exhibit "F" attached
hereto and made a part hereof.
IN WITNESS WHEREOF, the Landlord and Tenant have executed this Lease as
of September 13, 2000.
WITNESSES: WESTON, INC., MANAGING AGENT FOR
WESTON PROPERTY INVESTMENTS XV,
LTD., OWNER
/s/ Anna E. Porrini By: /s/ James A. Asher
- ----------------------------------- -------------------------------
James A. Asher, Vice President
/s/ Peter B. Korte
- -----------------------------------
"LANDLORD"
ERICO PRODUCTS, INC.
AN OHIO CORPORATION
/s/ Susan M. Cherni By: /s/ Peter B. Korte
- ----------------------------------- -------------------------------
Peter B. Korte, General Counsel &
Treasurer
/s/ James A. Asher
- -----------------------------------
"TENANT"
STATE OF OHIO :
: SS
COUNTY OF CUYAHOGA :
BEFORE ME, a Notary Public, in and for said county and state,
personally appeared the above-named Weston Inc., managing agent for Weston
Property Investments XV, Ltd., by James A. Asher, its Vice President, who
acknowledged that he did sign the foregoing instrument and that the same is the
free act and deed of said corporation and his free act and deed as such officer.
IN WITNESS WHEREOF, I have hereunder set my hand and official seal at
Cleveland, Ohio, this 13th day of September, 2000.
/s/ Anna E. Porrini
------------------------------------
NOTARY PUBLIC
STATE OF OHIO :
: SS
COUNTY OF CUYAHOGA :
BEFORE ME, a Notary Public, in and for said county and state,
personally appeared the above-named ERICO Products, Inc., by Peter B. Korte, its
General Counsel & Treasurer, who acknowledged that he did sign the foregoing
instrument and that the same is the free act and deed of said corporation and
his free act and deed as such officer.
IN WITNESS WHEREOF, I have hereunder set my hand and official seal at
Cleveland, Ohio this 13th day of September, 2000.
/s/ Susan M. Cherni
------------------------------------
NOTARY PUBLIC
EXHIBIT "A"
Section
1. Parties:
(a) Landlord: Weston Property Investments XV,
Ltd. an Ohio limited liability
company
(b) Tenant: ERICO Products, Inc. an Ohio
corporation federal ident.#
34-0961012
(d) Property Manager: Weston Inc.
29300 Aurora Road, 2nd Fl.
Solon, OH 44139
2. Premises:
(a) Building/ Complex: a portion of the land and improvements
thereon, located at Address: 31700 Solon Road, Solon, Ohio
44139, all as more particularly described on Exhibit B.
YES NO
(b) Leas-able Area: Office (X) ( )
in Premises Industrial ( ) (X)
Warehouse (X) ( )
164,940 square feet Commercial ( ) (X)
Outdoor ( ) (X)
(c) Tenant's Proportionate Share:
Complex 100%
3. Permitted Use of Premises: General manufacturing and/or
distribution
4. Address for Notices:
(a) Landlord: Weston Property Investments XV,
Ltd.
29300 Aurora Road, 2nd Fl.
Solon, OH 44139
Attn: General Counsel
(b) Copy to Management Office: Weston Inc.
29300 Aurora Road, 2nd Fl.
Solon, OH 44139
Attn: Solon
Road Property Manager
Fax No.: (440) 349-9001
(c) Tenant: ERICO Products, Inc.
30575 Bainbridge Road
Suite 300
Solon, Ohio 44139
Attn: General Counsel
(d) Billing Address: Same as (c)
(e) Remittance Address: Same as (a); attn: Accounts
Receivable
6. Broker (1) Colliers International (2) Grubb & Ellis
1100 Superior Avenue 1350 Euclid Ave.
Cleveland, Ohio 44114 Cleveland, OH 44115
7. Tenant's Insurance: PLEASE NOTE THAT, PURSUANT TO SECTION 7.1 (a) OF
THIS LEASE, TENANT IS REQUIRED TO MAINTAIN COMMERCIAL GENERAL
LIABILITY INSURANCE IN AN AMOUNT NOT LESS THAN TWO MILLION DOLLARS
($2,000,000.00) AND PROPERTY DAMAGE INSURANCE IN AN AMOUNT NOT LESS
THAN FIVE HUNDRED THOUSAND DOLLARS (($500,000.00) PER OCCURRENCE.
WESTON INC., AS AGENT FOR THE LANDLORD, ALSO MUST BE NAMED ON THE
INSURANCE CERTIFICATE AS AN ADDITIONAL INSURED FOR THE PREMISES AT
THE ADDRESS LISTED IN SECTION 2 (a) OF THIS EXHIBIT.
EXHIBIT "B"
LAYOUT OF PREMISES
OMITTED
EXHIBIT "C"
IMPROVEMENTS TO BE COMPLETED
BY LANDLORD: Landlord shall provide Tenant with a $50,000 improvement allowance
for leasehold improvements to the Premises. Upon Tenant's submission of paid
invoices to Landlord, Landlord shall pay said invoices to Tenant up to an amount
not to exceed said $50,000. Landlord shall also:
1. Ensure all HVAC, plumbing, electrical, dock doors and dock equipment
is in good working order upon occupancy;
2. Replace any burned out light bulbs or ballasts in the manufacturing
plant light fixture;
3. Broom clean warehouse floor; and
4. General clean-up.
BY TENANT: NONE
EXHIBIT "D"
OMITTED
RIDER TO LEASE
EXHIBIT "E"
RULES AND REGULATIONS
(1) OBSTRUCTIONS: The sidewalks, driveways, parking areas, entrances,
vestibules, elevators, hallways, stairways, loading docks, and passages shall
not be obstructed by Tenant or used for storage of materials or equipment,
(temporary or otherwise), display of merchandise, or any purpose other than
unimpeded access to and from the Premises.
(2) WINDOWS AND PROJECTIONS: Nothing shall be affixed to or projected
beyond the outside of the building by Tenant without the prior written consent
of Landlord, including, but not limited to awnings and air-conditioning units,
and no curtains, blinds, shades or screens shall be used in connection with any
window of the Premises without the prior written consent of Landlord.
(3) ADVERTISING: Tenant shall not in any manner use the name of the
Premises or the Building for any purpose other than that of the business address
of Tenant, or use any picture or likeness of the Premises or the Building in any
letterheads, envelopes, circulars, notices, advertisements, containers or
similar items without Landlord's prior written consent.
(4) ANIMALS: Unless expressly permitted by Landlord, no animals or birds
shall be brought or permitted to be in the Building or any part thereof.
(5) LOCKS: Unless expressly permitted by Landlord, no additional locks or
similar devices shall be attached to any door or window and no keys other than
those provided by the Landlord shall be made for any door. If more than two keys
for one lock are desired by Tenant, Landlord may provide the same upon payment
by Tenant. Upon termination of this Lease or of Tenant's possession, Tenant
shall surrender all keys of the Premises to Landlord and shall provide Landlord
with the then current combination for any combination locks on safes, cabinets
and vaults situated on the Premises.
(6) LEDGES AND WINDOWS: Tenant shall not place or permit to be placed any
article of any kind on the window ledges or elsewhere on the exterior walls, and
shall not throw or drop or permit to be thrown or dropped any article from any
window of the Building.
(7) LODGING: The Premises shall not be used for lodging or sleeping
purposes.
(8) ELECTRICAL EQUIPMENT: If Tenant desires signal, communication, alarm or
other utility or similar service connections installed or changed, Tenant shall
not install or change the same without the prior written approval of Landlord,
which approval shall not be unreasonably withheld, and then only under
Landlord's direction, at Tenant's expense and otherwise in accordance with the
terms of this Lease.
(9) REST ROOM USE: The toilet rooms, urinals, wash bowls and other such
apparatus shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be thrown
therein and the expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the Tenant who, or whose employees or
invitees, shall have caused it.
(10) SAFETY PROGRAMS: Tenant shall cooperate and comply with any reasonable
safety or security programs, including fire drills and the appointment of "fire
wardens" developed by Landlord for the Building.
(11) DEFACEMENT: Tenant shall not drive nails or screws into the woodwork or
walls, or paint, mark or in any way deface the Building or any part thereof. Any
damage or injury resulting from a violation of this rule shall be remedied at
the expense of the violator.
(12) ELEVATORS: Tenant shall use elevators to transport people and goods in
the normal course of Tenant's business and hereby agrees that it will not permit
elevators to be overloaded beyond their posted weight capacity. Any damage or
injury resulting from a violation of this rule shall be remedied at the expense
of the violator.
(13) STORAGE OF MATERIALS: Tenant shall not stack or store materials,
inventory, equipment, pallets and similar items in a manner which obstructs
access to fire exit signs, fire exits, utility meters, unit heaters, gas and
water lines and air-conditioning equipment.
(14) PARKING: Except for short-term loading and unloading, all vehicles are
to be parked in areas designed for vehicle parking. Tenant shall not use the
designated parking areas in any manner for storage of materials, parts,
supplies, trailers, equipment, or machinery, without the prior written consent
of Landlord in each instance, nor shall Tenant use the parking areas in any
manner that could obstruct or interfere with the rights and safety of other
Tenants or Persons. Landlord reserves the right to designate and/or assign all
parking, including the right to designate or assign parking spaces for the
exclusive use by other tenants. Tenant shall not permit its employees to park in
areas designated as "Visitor Parking".
(15) SALES ON PREMISES: The Tenant shall not exhibit, sell or offer for sale
on the Premises or in the Building any article or thing except those articles
and things essentially connected with the stated use of the Premises by the
Tenant without the prior written consent of the Landlord.
(16) WASTE MANAGEMENT: All rubbish, trash or debris generated by Tenant
shall be contained within the Premises, in containers reasonably approved by
Landlord, until removed from the Premises. No such waste material or refuse
shall at any time be stored or kept outside the Premises without the prior
consent of Landlord and further provided (a) such storage complies with all
applicable governmental regulations, (b) all containers are kept covered at all
times, and (c) such storage does not interfere with the use of the Common Areas
of Landlord's Property by Landlord or other tenants of Landlord's property.
Tenant shall dispose of its own rubbish and not permit the accumulation thereof
in and around the Premises, and, in the event Tenant fails to remove any
accumulation of rubbish within three (3) days after notice to remove the same,
Landlord shall have the right to remove same, in which event the reasonable cost
thereof shall be charged to Tenant as additional rent.
(17) HAND TRUCKS: Hand trucks may not be used in the Building or the
Premises unless they are equipped with rubber tires and bumper guards.
(18) WAIVER: Landlord may waive any one or more of these rules and
regulations for the benefit of any particular tenant or tenants, but such waiver
by Landlord shall not be construed as a waiver of such rules and regulations in
favor of any other tenant or tenants, nor prevent Landlord from thereafter
enforcing any such rules and regulations against any or all of the tenants of
the Building.
(19) CONSTRUCTION OF RULES AND REGULATIONS: These rules and regulations are
in addition to, and shall not be construed to in any way modify, alter or amend,
in whole or in part, the terms, covenants, agreements and conditions of the
Lease by and between the parties hereto.
EXHIBIT "F"
GUARANTEE OF LEASE
IN CONSIDERATION FOR and as an inducement to Landlord to enter into the
within Lease, the undersigned, on behalf of himself/herself/themselves, hereby
absolutely and unconditionally guaranty the prompt and punctual payment when
due, by acceleration or otherwise, of all rents reserved, charges for operating
expenses and taxes and additional and other charges payable by Tenant under the
Lease, and the full and complete performance of all the covenants, terms and
provisions to be performed by Tenant thereunder, and agree(s) to be bound
jointly with Tenant as if the undersigned had been an original party to the
Lease. The undersigned hereby waive(s) notice of nonpayment and nonperformance
by Tenant, and waive(s) demand for payment and protest relative to the
obligations guaranteed herein. It shall not be necessary for Landlord to resort
to or exhaust its remedies against Tenant or against any other party or parties
liable under the Lease, or to resort to any of the remedies provided for
therein, prior to calling upon the undersigned for payment or performance of the
obligations of Tenant under the Lease. It is hereby further agreed that no
modification, extension, amendment, renewal, indulgence, forbearance or revision
granted to Tenant shall release the undersigned guarantor(s) from the
obligations hereof. All guarantors hereunder agree that they shall be held
jointly and severally liable. This Agreement shall be binding upon the
undersigned, his/her/their heirs, executors, successors and assigns.
IN WITNESS WHEREOF, ERICO International Corporation, an Ohio
corporation, has hereunto set its hand this 13th day of September, 2000.
WITNESSES: GUARANTOR:
ERICO International Corporation
/s/ Susan M. Cherni BY: /s/Peter B. Korte
- ---------------------------------- -----------------------------------
Peter B. Korte
/s/ James A. Asher ITS: General Counsel & Treasurer
- ----------------------------------
Employer I. D. No. 34-02014600
EXHIBIT G
OPTION TO PURCHASE
The following business terms shall be the basis for a sale of the
Premises by Landlord to Tenant in the event Tenant exercises its option as set
forth in Section 2.1 (f) of the Lease to which this Exhibit is attached (the
"Agreement"). For purposes hereof, Landlord shall be referred to as "Seller" and
Tenant shall be referred to as "Buyer". Unless otherwise defined herein,
capitalized terms used herein shall have the meanings ascribed to them in the
Agreement.
1. Purchase Price. The purchase price shall be as set forth in
Section 2.1 (f) of the Agreement (the "Purchase Price"), payable as follows: (a)
a non-refundable earnest money of $20,000.00 to be deposited in escrow with a
title company to be designated by Buyer ("Escrow Agent") within forty-eight (48)
hours of Buyer's exercise of the option, and (b) the balance to be deposited
with Escrow Agent not later than the Closing Date, as hereinafter defined.
2. Title to be Conveyed. Seller agrees to convey to Buyer good,
marketable, indefeasible, fee simple title to the Premises, free and clear of
all liens and the possibilities of liens (including possible mechanics' and
materialmen's liens), restriction and encumbrances (including encroachments)
whatsoever except (a) current real estate taxes and assessments, both general
and special, which are a lien but not due and payable at the time the Deed is
filed for record (the "Closing"), (b) zoning ordinances, (c) any matters arising
out of the action or inaction of the Buyer during its tenancy of the Premises
after the date of the Lease, and (d) such easements and restrictions of record
as Buyer may approve in writing prior to the Closing Date.
3. Instruments of Conveyance. Conveyance of title to the Premises
shall be by limited warranty deed (the "Deed") conveying title as provided in
Section 2 hereof. Seller shall deliver a copy of the Deed to Buyer, for its
approval, prior to depositing it in escrow.
4. Representations of the Seller. the Seller represents that
Seller, to its actual knowledge, without further inquiry or investigation, and
covenants and agrees with the Buyer as follows:
a. There are no violations of environmental laws, rules or
regulations on or at the Premises;
b. The performance of the obligations of the Seller under this
Agreement shall not violate any contract, indenture, statute,
ordinance, judicial or administrative order or judgment known
to the Seller;
c. There is no litigation or proceeding pending or threatened
against or involving the Premises or the Seller which could
have an adverse impact on the Buyer or the Buyer's interests
under this Agreement;
d. Except for tenant leases, the Seller has not granted to any
party any rights of occupancy in or to the Premises;
f. The Seller has the full right and authority to convey the
Premises to the Buyer pursuant to this Agreement.
5. Representatives of the Buyer. Except as otherwise provided or
acknowledged in this Agreement, the Buyer represents, to its actual knowledge,
to the Seller as follows:
a. The Buyer has the full right and authority to purchase the
Premises pursuant to this Agreement;
b. The performance of the obligations of the Buyer under this
Agreement shall not violate any contract, indenture, statute,
ordinance, judicial or administrative order or judgement known
to the Buyer;
c. There is no litigation or proceeding pending or threatened
against or involving the Buyer which could have an adverse
impact on the Seller or the Seller's interests under this
Agreement; and
d. In taking title to the Premises, the Buyer acknowledges that
it has not relied upon any written or oral representations
made by the Seller or any representative of the Seller,
including any real estate salesperson, regarding the Premises
or any aspect of this transaction, which is not expressly set
forth in this Agreement.
6. Title Evidence. Buyer shall, at its sole cost and expense,
obtain a standard ALTA owner's policy of title insurance, without standard
exceptions, (the "Title Evidence") issued by Chicago Title Insurance Company
(the "Title Company") in an amount equal to the Purchase Price showing title to
be good in Buyer as required in Section 2. Seller shall furnish the Title
Company with such affidavits as it may require in order for it to delete its
standard exception relating to mechanics' and materialmen's liens (except those
arising as a result of Buyer's actions or inactions).
7. Closing. The Deed shall be deposited in escrow with the Escrow
Agent at least 1 day prior to the Closing Date. The Closing Date shall be the
first business day after the tenth (10th) business day after the exercise of the
option or such other date as Buyer and Seller may agree upon in writing. In the
event the Title Company cannot issue the Title Evidence, notice shall be given
to Seller and Buyer by Escrow Agent and Seller shall have 30 days after notice
to remove any defect in title and if such defect is not cured within such time,
Buyer may, at its option, (i) accept such title as Seller is able to furnish
without reduction in the Purchase Price or (ii) terminate this option, provided,
however that in either event, Buyer shall not be precluded for bringing an
action at law or equity for damages or specific performance for Seller's failure
to deliver title as required hereby. Provided the Deed and Purchase Price have
been deposited in escrow as required herein, Escrow Agent shall file the Deed
for record on the Closing Date if the Title Company can and will thereafter
furnish the Title Evidence. Escrow Agent is authorized to pay in full all liens
and encumbrances for money on the Premises from the funds deposited in escrow if
the Title Company can and will thereafter furnish the Title Evidence. If for any
reason Seller does not deliver to Escrow Agent on or before the Closing a
so-called "non-foreign Seller's Affidavit", then the Escrow Agent shall withhold
all amounts required by the Internal Revenue Code as in effect on the Closing
Date and shall file all such reports and deliver such amount as set forth in
such Code. After making the prorations and charges herein provided, Escrow Agent
shall deliver to Seller the balance of the Purchase Price and its escrow
statement and deliver to Buyer the Title Evidence, the recorded Deed, its escrow
statement and any amounts due Buyer.
8. Costs. From the funds deposited in escrow by Buyer, Seller
shall pay for (a) all costs and expenses for discharging any mortgages and other
liens on the Premises; and (b) the amount, if any, due Buyer by reason of rental
prorations (which shall be made by the Escrow Agent as of the Closing). Buyer
shall pay for (a) the cost of all applicable state and county transfer taxes and
fees; (b) the cost of the Title Evidence (including the cost of any commitment
and title searches, and title insurance premiums); (c) the escrow fee; (d) the
cost to record the deed; and all costs and expenses for any and all due
diligence information obtained by Buyer.
9. Confidential Information. In the event Buyer obtains
environmental reports, building condition reports, appraisals or any other
information regarding the Premises, it shall be considered by both Buyer and
Seller as "Confidential Information". For a period of one (1) year after receipt
by Buyer of any Confidential Information, Buyer will keep such Confidential
Information in strict secrecy and confidence and will not disclose any
Confidential Information to persons other than the employees and officers of
Buyer or Seller ("Permitted Persons"). Buyer shall ensure that all Permitted
Persons given access to any of the Confidential Information shall be made
familiar with and bound by the requirements of this Exhibit "G", and Buyer shall
instruct each such person not to further disclose any of the Confidential
Information, except to other Permitted Persons. Confidential Information shall
be used only for the purpose of
16
evaluating the purchase of the Premises, and shall not be utilized in any other
manner for the direct or indirect benefit of Buyer, or its employees or
officers.
10. Possession. Seller shall deliver full and complete possession
of the Premises to Buyer at the Closing and both Buyer and Seller shall execute
and deliver for recording counterpart terminations of the Lease which shall be
effective as of the Closing Date. Time for delivery of possession herein
specified is of the essence.
11 Escrow Instructions. This Exhibit shall be used as escrow
instructions and Escrow Agent may attach its standard conditions of escrow
hereto, provided, however, that in the event of an inconsistency between said
standard conditions and these instructions, these instructions shall control. In
addition, Escrow Agent shall file all informational reports required by the
Internal Revenue Code as in effect on the Closing Date, including but not
limited to Form 1099-B.
12. Binding Effect. Upon exercise of the option by Buyer, these
instructions shall become an agreement for the sale of the Premises, binding
upon and accruing to the benefit of Buyer and Seller and their respective
representatives, heirs, administrators and assigns and may not be modified
unless by a subsequent agreement in writing executed by both Buyer and Seller.
The singular shall include the plural and the plural the singular. The gender
used herein shall be deemed to include each other gender as appropriate.
13. Real Estate Brokers. Each of the parties hereto represents and
warrants to the other that such party has not dealt with any real estate broker,
real estate agent or finder in connection with this transaction other than the
brokers involved and described in the Lease, and each of the parties hereto
agrees to indemnify and save the other party harmless from any and all loss,
cost and expense incurred in connection with any claim for any real estate
commission or fee which arises by reason of the actions of such party. Any
commission arising herefrom due to the brokers referred to in the Lease shall be
paid by the Seller
14. Conditions to Closing. Other than the representations of
Seller made in Paragraph 4 hereof, Buyer acknowledges that Seller has made no
representations or warranties of any kind or nature, either oral or written,
directly or indirectly, express, implied, statutory or otherwise, with respect
to the Premises, and that Buyer is purchasing the Premises from Seller "AS IS,
WHERE IS, WITH ALL FAULTS" condition. All payments made hereunder shall be in
cash, or by wire transfer or in readily available funds.