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Exhibit 10.14
LEASE
BETWEEN: MCRI, INC.
9300 Shelbyville Road
Suite 500
Louisville, Kentucky 40222 ("Landlord")
AND: Norcross Safety Products L.L.C.
1136 2nd Street
Rock Island, Illinois 61201 ("Tenant")
FOR PREMISES IN: LAND AND BUILDINGS
1136 2nd Street
Rock Island, Illinois 61201
DATE: June 7, 1995
LANDLORD AND TENANT, in consideration of the covenants herein contained,
hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS. In this Lease:
A. "Annual Rent" means the amount payable by Tenant to Landlord
in respect of each year of the Term under Article 4.1 or 4.2.
B. "Article" means an article of this Lease.
C. "Commencement Date" means the first day of the Term.
D. "Index" means the Consumer Price Index for the Midwest as
published by the Bureau of Labor Statistics (1967-100) or such successor
index as may then be published by the Bureau of Labor Statistics or a
successor governmental agency.
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E. "Lease" means this Lease, Exhibit A to this Lease, and every
properly executed instrument which by its terms amends, modifies or
supplements this Lease.
F. "Other Charges" means amounts payable to Landlord under
Article 4.3.
G. "Premises" means the tract of real property and the
improvements located thereon as described on Exhibit A hereto, consisting
of approximately 260,994 square feet.
H. "Rent" means the aggregate of all amounts payable by Tenant
to Landlord under Articles 4.1, 4.2 and 4.3.
I. "Term" means the period of time set out in Article 3.1.
ARTICLE 2
GRANT OF LEASE
2.1 GRANT. Landlord hereby demises and leases the Premises to Tenant,
and Tenant hereby leases and accepts the Premises from Landlord, to have and to
hold during the Term, subject to the terms and conditions of this Lease.
2.2 QUIET ENJOYMENT. Landlord shall warrant and defend Tenant in the
quiet enjoyment and possession of the Premises during the Term, subject to the
terms and conditions of this Lease.
2.3 COVENANTS OF LANDLORD AND TENANT. Landlord covenants to observe and
perform all of the terms and conditions to be observed and performed by Landlord
under this Lease. Tenant covenants to pay the Rent when due under this Lease,
and to observe and perform all of the terms and conditions to be observed and
performed by Tenant under this Lease.
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ARTICLE 3
TERM AND POSSESSION
3.1 TERM. The term of this Lease shall begin on the __ day of June, 1995
and end on the __ day of May, 2000.
3.2 OPTION TO RENEW. Provided that this lease is in full force and
effect and Tenant is not in default hereunder, Tenant shall have the right and
option to extend this lease for two (2) successive terms of five (5) years. The
payment of rent shall be as provided under Article 4.5 while the same
contractual terms and conditions, as established for the original term of this
lease, shall be in effect for the successive terms of the lease. Tenant shall
have no further extension option at the expiration of the second successive
lease term. Any extension option to be effective must be exercised by Tenant by
written notice received by Landlord at least six (6) months prior to the
commencement date of the extension term.
3.3 ACCEPTANCE OF PREMISES. Taking possession of all or any portion of
the Premises by Tenant shall be conclusive evidence as against Tenant that the
Premises or such portion thereof are in satisfactory condition on the date of
taking possession, subject only to latent defects and deficiencies (if any)
listed in writing in a notice delivered by Tenant to Landlord not more than
thirty (30) days after the later of the date of taking possession and the
Commencement Date.
ARTICLE 4
RENT
4.1 ANNUAL RENT. Tenant shall pay to Landlord, beginning upon the
Commencement Date, as Rent, the sum of $240,000 per year payable monthly in
advance and without notice, in monthly installments of $20,000 each on the
Commencement Date (or prorated as provided for in Section 4.5) and the first day
of each calendar month thereafter during the Term of the Lease. The Rent shall
be computed on a triple net basis as provided under subsequent Articles of this
Lease.
4.2 OTHER CHARGES. Tenant shall pay to Landlord, at the times and in the
manner provided in this Lease or if not so provided, as reasonably required by
Landlord, all amounts (other than those payable under Article 4.1) which are
payable by Tenant to Landlord under this Lease.
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4.3 PAYMENT OF RENT - GENERAL. All amounts payable by Tenant to Landlord
under this Lease shall be deemed as Rent and shall be payable and recoverable as
Rent in this manner herein provided, and Landlord shall have all rights against
Tenant for default in any such payment as in the case of arrears of rent. Rent
shall be paid to Landlord, without deduction or set-off, in legal tender, at the
address of the Landlord as set forth in the beginning of this Lease, or to such
other person or at such other address as Landlord may from time to time
designate in writing. Tenant's obligation to pay Rent shall survive the
expiration or earlier termination of this Lease.
4.4 RENT - RENEWAL PERIOD.
A. FIRST RENEWAL PERIOD. If Tenant decides to exercise the first
renewal option described in Article 3.2, the Rent payable by Tenant
hereunder shall be the Annual Rent as set forth in Article 4.1 multiplied
by a fraction the numerator of which is the Index for June 1, 2000 less the
Index for June 1, 1995, and the denominator of which is the Index for June
1, 1995.
B. SECOND RENEWAL PERIOD. If Tenant decides to exercise the
second renewal option described in Article 3.2, the Rent payable by Tenant
hereunder shall be an annual sum equal to the previous year's rent
increased in accordance with the following formula: The previous year's
rent shall be multiplied by a fraction, the numerator of which is the Index
for June 1, 2005 less the Index for June 1, 2000, and the denominator of
which is the Index for June 1, 2000.
C. NOTIFICATION. Upon Tenant's exercising the renewal option,
Landlord will determine the renewal rate and notify Tenant of that rate
(and Landlord's computation thereof) and the amount of the monthly
installments to be paid during such Renewal Term within 30 days of the day
Tenant exercises the option to renew the lease.
4.5 RENT - PRORATIONS. In the event the Commencement Date under Article
4.1 is not on the first day of a month, Rent payable by the Tenant to the
Landlord, at the rates specified in such Article, shall be prorated, on a daily
basis.
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ARTICLE 5
USE OF PREMISES
5.1 USE. The Premises shall be used and occupied for manufacturing,
warehouse and offices or for such other purposes as Landlord may specifically
authorize in writing.
5.2 COMPLIANCE WITH LAWS. The Premises shall be used and occupied in a
safe, careful and proper manner so as not to contravene any present or future
governmental or quasi-governmental laws in force or regulations or orders. If,
due solely to Tenant's use of the Premises, improvements are necessary to comply
with any of the foregoing or with the requirements of insurance carriers, Tenant
shall pay the entire cost thereof.
5.3 ABANDONMENT. Tenant shall not vacate or abandon the Premises at any
time during the Term without Landlord's written consent.
5.4 NUISANCE. Tenant shall not cause or maintain any nuisance in or
about the Premises.
ARTICLE 6
SERVICES, MAINTENANCE, REPAIR AND ALTERATIONS
6.1 OPERATIONS OF PREMISES. During the Term Landlord shall operate and
maintain the Premises in accordance with all applicable laws and regulations and
with standards from time to time prevailing for manufacturing facilities, office
buildings and warehouses in the area in which the Premises are located.
6.2 ACCESS BY LANDLORD. Tenant shall permit Landlord to enter the
Premises outside normal business hours, and during normal business hours where
such entry will not unreasonably disturb or interfere, in the judgment of
Tenant, with Tenant's use of the Premises and operation of its business.
Landlord shall whenever possible (except in an emergency) consult with or give
reasonable notice to Tenant prior to such entry, but no such entry shall
constitute an eviction or entitle Tenant to any abatement of Rent.
6.3 MAINTENANCE BY TENANT. Tenant shall be responsible for any and all
maintenance and repair of the Premises and all improvements therein and shall
maintain
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the name, at Tenant's sole expense, in substantially the same order and
condition as at the beginning of the Term, reasonable wear and tear excepted.
6.4 FAILURE TO MAINTAIN PREMISES. If Tenant fails to keep the Premises
in good order or repair or permits nuisances then, on not less than ten (10)
days notice to Tenant, Landlord may enter the Premises and perform such repairs,
replacement and alternations as needed without liability to Tenant for any loss
or damage to Tenant thereby incurred, and Tenant shall pay Landlord for the cost
thereof within ten (10) days of receipt of Landlord's invoice therefor.
6.5 ALTERATIONS BY TENANT. Tenant may from time to time at its own
expense make changes, additions and improvements in the Premises to better adapt
the same to its business, provided that any such change, addition or improvement
shall
A. comply with the requirements of any governmental or quasi-
governmental authority having jurisdiction;
B. be made only with the prior written consent of Landlord; and
C. be carried out only by persons selected by Tenant and
approved in writing by Landlord, which approval shall not be unreasonably
withheld or delayed, who shall if required by Landlord deliver to Landlord,
before commencement of the work, performance and payment bonds as well as
proof of worker's compensation and public liability and property damage
insurance coverage, with Landlord named as an additional insured, in
amounts, with companies, and in form reasonably satisfactory to Landlord,
which shall remain in effect during the entire period in which the work
will be carried out.
Any increase in property taxes on or fire or casualty insurance
premiums for the Premises attributable to such change, addition or
improvement shall be borne by Tenant.
6.6 TRADE FIXTURES AND PERSONAL PROPERTY. Tenant may install in the
Premises its usual trade fixtures and personal property in a proper manner,
provided that no such installation shall interfere with or damage the mechanical
or electrical systems or the structure of the Premises. If Tenant is not then in
default hereunder, trade fixtures and personal property installed in the
Premises by Tenant may be removed from the Premises:
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A. from time to time in the ordinary course of Tenant's business
or in the course of reconstruction, renovation or alteration of the
Premises by Tenant; and
B. during a reasonable period prior to the expiration of the
Term, provided that Tenant promptly repairs at its own expense any damage
to the Premises resulting from such installation and removal.
6.7 MECHANIC LIENS. Tenant shall pay before delinquency all costs for
work done or caused to be done by Tenant in the Premises which could result in
any lien or encumbrance on Landlord's interest in the Premises or any part
thereof and shall keep the title to the Premises and every part thereof free and
clear of any lien or encumbrance in respect of such work. Tenant shall
immediately notify Landlord of any such lien, claim of lien or other action of
which it has or reasonably should have knowledge and which affects the title to
the Premises or any part thereof, and shall cause the same to be removed (or
bonded) within thirty (30) days (or such additional time as Landlord may consent
to in writing), failing which Landlord may take such action as Landlord deems
necessary to remove the same. Landlord may take all such action permitted by the
laws of the State of Illinois to recover any funds advanced by Landlord to
remove said lien.
ARTICLE 7
TAXES
7.1 TENANT'S TAXES. Tenant shall pay before delinquency every real
estate tax, assessment, license fee, excise and other charge, however described,
from which it is not exempted, which is imposed, levied, assessed or charged by
any governmental or quasi-governmental authority having jurisdiction and which
is payable in respect of the Premises, including the Improvements, or which is
payable upon or on account of
A. operations at, occupancy of or conduct of business in or from
the Premises by or with the permission of Tenant;
B. fixtures or personal property in the Premises which do not
belong to the Landlord; and
C. the Rent paid or payable by Tenant to Landlord for the
Premises or for the use and occupancy of all or any part thereof.
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7.2 RIGHT TO CONTEST. Landlord and Tenant shall each have the right to
contest in good faith the validity or amount of any tax, assessment, license
fee, excise fee and other charge which it is responsible to pay under this
Article 7, provided that no contest by Tenant may involve the possibility of
forfeiture, sale or disturbance of Landlord's interest in the Premises, that
Tenant provides to Landlord security for the taxes contested by Tenant adequate
in the reasonable opinion of the Landlord, and that upon the final determination
of any contest by Tenant, Tenant shall immediately pay and satisfy the amount
found to be due, together with any costs, penalties and interest.
ARTICLE 8
INSURANCE
8.1 TENANT'S INSURANCE. During the Term, Tenant shall maintain at its
own expense general liability insurance, fire insurance with extended coverage,
boiler and pressure vessel insurance, water damage insurance for water-related
losses and other insurance on the Premises and Tenant's improvements and
property with coverage and in amounts reasonably deemed sufficient by Landlord.
Certificates evidencing the insurance coverage required hereunder shall be
delivered to Landlord with evidence of payment of premiums in full and such
coverage must be approved by Landlord. All policies of insurance shall name
Landlord as an additional insured and shall require thirty (30) days prior
notice to Landlord in the event of cancellation or material modification.
ARTICLE 9
INJURY TO PERSON OR PROPERTY
9.1 INDEMNITY BY TENANT. To the extent that the laws of the State of
Illinois, whether statutory or judicial, permit recovery, Tenant shall indemnify
and hold harmless Landlord from and against every demand, claim, cause of
action, judgment and expense, and all loss and damage arising from
A. any injury or damage to the person or property of Tenant, any
other tenant in or on the Premises or to any other person rightfully in or
on the Premises, where the injury or damage is caused by negligence or
misconduct of Tenant, its agents, servants or employees, or of any other
person entering upon the Premises under express or implied invitation of
Tenant, or results from the
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violation of laws or ordinances, governmental orders of any kind or of the
provisions of this Lease by any of the foregoing;
B. any injury or damage not specified above to the person or
property of Tenant, its agents, servants or employees, or any other person
entering upon the Premises under express or implied invitation of Tenant,
where the injury or damage is caused by any reason other than the
negligence or misconduct of Landlord, its agents, servants or employees.
ARTICLE 10
ASSIGNMENT AND SUBLETTING
10.1 NO ASSIGNMENT. Tenant shall not assign, sublease, or transfer this
Lease or any interest there in or in any way part with possession of all or any
part of the Premises, or permit all or any part of the Premises to be used or
occupied by any other person without Landlord's written consent. Any such
assignment, transfer or subletting shall be null and void and of no force and
effect. The rights and interests of Tenant under this Lease shall not be
assignable by operation of law without Landlord's written consent. Upon consent
of the Landlord and the full assumption of the Lease liability by the assignee,
the Tenant shall be released from its obligations under the Lease so long as
Tenant is not in default thereunder.
10.2 SUBSEQUENT ASSIGNMENTS. Landlord's consent to an assignment,
transfer or subletting (or use or occupation of the Premises by any other
person) shall not be deemed to be a consent to any subsequent assignment,
transfer, subletting, use or occupation.
ARTICLE 11
SURRENDER
11.1 POSSESSION. Upon the expiration or other termination of the Term,
Tenant shall immediately quit and surrender possession of the Premises in
substantially the same condition in which Tenant is required to maintain the
Premises excepting only reasonable wear and tear. Upon such surrender, all
right, title and interest of Tenant in the Premises shall cease.
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11.2 TRADE FIXTURES, PERSONAL PROPERTY AND IMPROVEMENTS. Subject to
Tenant's rights under Article 6.6, after the expiration or other termination of
the Term, all of the Tenant's trade fixtures, personal property and improvements
remaining in the Premises shall be deemed conclusively to have been abandoned by
Tenant and may be appropriated, sold, destroyed or otherwise disposed of by
Landlord without notice or obligation to compensate Tenant or to account
therefor, and Tenant shall pay to Landlord on written demand all costs incurred
by Landlord in connection therewith.
11.3 MERGER. The voluntary or other surrender of this Lease by Tenant or
the cancellation of this Lease by mutual agreement of Tenant and Landlord shall
not work a merger, and shall at Landlord's option terminate all or any subleases
and subtenancies or operate as an assignment to Landlord of all or any subleases
or subtenancies. Landlord's option hereunder shall be exercised by notice to
Tenant and all known sublessees or subtenants in the Premises or any part
thereof.
11.4 PAYMENTS AFTER TERMINATION. No payments of money by Tenant to
Landlord after the expiration or other termination of the Term or after the
giving of any notice (other than a demand for payment of money) by Landlord to
Tenant, shall reinstate, continue or extend the Term or make ineffective any
notice given to Tenant prior to the payment of such money. After the service of
notice of the commencement of a suit, or after final judgment granting Landlord
possess of the Premises, Landlord may receive and collect any sums of Rent due
under the Lease, and the payment thereof shall not make ineffective any notice,
or in any manner affect any pending suit or any judgment theretofore obtained.
ARTICLE 12
HOLDING OVER
12.1 MONTH-TO-MONTH TENANCY. If with Landlord's written consent Tenant
remains in possession of the Premises after the expiration or other termination
of the Term, Tenant shall be deemed to be occupying the Premises on a
month-to-month tenancy only, at a monthly rental equal to the Rent as determined
in accordance with Article 4 or such other rental as is stated in such written
consent, and such month-to-month tenancy may be terminated by Landlord or
Tenant on the last day of any calendar month by delivery of at least thirty (30)
days' advance notice of termination to the other.
12.2 TENANCY AT SUFFERANCE. If without Landlord's written consent Tenant
remains in possession of the Premises after the expiration or other termination
of the
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Term, Tenant shall be deemed to be occupying the Premises upon a tenancy at
sufferance only, at a monthly rental equal to two times the Rent determined in
accordance with Article 4. Such tenancy at sufferance may be terminated by
Landlord at any time by notice of termination to Tenant, and by Tenant on the
last day of any calendar month by at least thirty (30) days' advance notice to
termination to Landlord.
12.3 GENERAL. Any month-to-month tenancy or tenancy at sufferance
hereunder shall be subject to all other terms and conditions of this Lease
except any right of renewal, and nothing contained in this Article 12 shall be
construed to limit or impair any of Landlord's rights of re-entry or eviction or
constitute waiver thereof.
ARTICLE 13
EMINENT DOMAIN
13.1 TAKING OF PREMISES. If during the Term all of the Premises shall be
taken for any public or quasi-public use under any statute or by right of
eminent domain, or purchased under threat of such taking, this Lease shall
automatically terminate on the date on which the condemning authority takes
possession of the Premises (hereinafter called the "date of such taking").
13.2 PARTIAL TAKING. If during the Term only part of the Premises is
taken or purchased as set out in Article 13.1, then if in the reasonable opinion
of the Landlord substantial alteration or reconstruction of the Premises is
necessary or desirable as a result thereof, Landlord shall have the right to
terminate this Lease by giving the Tenant at least thirty (30) days' written
notice of such termination, and if Landlord exercises its right to termination
hereunder, this Lease shall terminate on the date stated in the notice,
provided, however, that no termination pursuant to notice hereunder may occur
later than sixty (60) days after the date of such taking.
13.3 SURRENDER. On any such date of termination under Article 13.1 or
13.2, Tenant shall immediately surrender to Landlord the Premises and all
interests therein under this Lease. Rent shall no longer accrue from the date of
termination, except that if the date of such taking differs from the date of
termination, Rent shall abate on the former date in respect of the portion
taken. After such termination, and on notice from Landlord stating the Rent then
owing, Tenant shall forthwith pay Landlord such Rent.
13.4 PARTIAL TAKING OF PREMISES. If any portion of the Premises (but less
than the whole thereof) is so taken, and no rights of termination herein
conferred are timely
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exercised, the Term of this Lease shall expire with respect to the portion so
taken on the date of such taking. In such event the Rent payable hereunder with
respect to such portion so taken shall no longer accrue from such date, and the
Rent thereafter payable with respect to the remainder not so taken shall be
adjusted pro rata by Landlord in order to account for the resulting reduction in
the number of square feet in the Premises.
13.5 AWARDS. Upon any such taking or purchase, Landlord shall be entitled
to receive and retain the entire award or consideration for the affected lands
and improvements, and Tenant shall not have nor advance any claim against
Landlord for the value of its property or its leasehold estate or the unexpired
Term of the Lease, or for costs or removal or relocation, or business
interruption expense or any other damages arising out of such taking or
purchase. Nothing herein shall give Landlord any interest in or preclude Tenant
from seeking and recovering on its own account from the condemning authority any
award or compensation attributable to the taking or purchase of Tenant's
chattels or trade fixtures. If any such award made or compensation paid to
either party specifically includes an award or amount for the other, the party
first receiving the same shall promptly account therefor to the other.
ARTICLE 14
DAMAGE BY FIRE OR OTHER CASUALTY
14.1 LIMITED DAMAGE TO PREMISES. If all or part of the Premises are
rendered untenantable by damage from fire or other casualty which, in the
reasonable opinion of an architect reasonably acceptable to Landlord and Tenant,
can be substantially repaired under applicable laws and governmental regulations
within one hundred eighty (180) days from the date of such casualty (employing
normal construction methods without overtime or other premium), Tenant shall
forthwith, with all insurance proceeds, repair such damage.
14.2 MAJOR DAMAGE TO PREMISES. If all or part of the Premises are
rendered untenantable by damage from fire or other casualty which, in the
reasonable opinion of an architect reasonably acceptable to Landlord and Tenant,
cannot be substantially repaired under applicable laws and governmental
regulations within one hundred eighty (180) days from the date of such casualty
(employing normal construction methods without overtime or other premium), then
either Landlord or Tenant may elect to terminate this Lease as of the date of
such casualty by written notice delivered to the other not more than thirty (30)
days after receipt of such architect's opinion, failing which Tenant shall
forthwith, with all insurance proceeds, repair such damage other than
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damage to improvements, furniture, chattels or trade fixtures which do not
belong to Landlord.
14.3 ABATEMENT. If Tenant is required to repair damage to all or part of
the Premises under Articles 14.1 or 14.2, the Rent payable by Tenant hereunder
shall be proportionately reduced to the extent that the Premises are thereby
rendered untenantable from the date of such casualty until five (5) days after
completion by Landlord of the repairs to the Premises (or the part thereof
rendered untenantable) or until Tenant again uses the Premises (or the part
thereof rendered untenantable) in its business, whichever first occurs.
14.4 LIMITATION ON LANDLORD'S LIABILITY. Except as specifically provided
in this Article 14, there shall be no reduction of Rent and Landlord shall have
no liability to Tenant by reason of any injury to or interference with Tenant's
business or property arising from fire or other casualty, or from the making of
any repairs resulting therefrom in or to any portion of the Premises.
Notwithstanding anything contained herein, Rent payable by Tenant hereunder
shall not be abated if the damage is caused by the gross negligence or willfull
misconduct of Tenant, its agents, servants, employees or any other person
entering upon the Premises under express or implied invitation of Tenant.
ARTICLE 15
INDEMNIFICATION OF LANDLORD: MUTUAL WAIVER OF SUBROGATION
15.1 Tenant agrees to indemnify and save harmless Landlord from and
against all claims, demands, liabilities, penalties, expenses and judgments
(including without limitation reasonable attorney's fees) based on damages or
bodily injuries to persons or property occasioned by acts or omissions,
including negligence of Tenant, its officers, agents, employees,
representatives, customers, guests and invitees in the conduct and operation of
Tenant's business on the land, building, and improvements, of which the Demised
Premises form a part or arising out of the use by Tenant or condition of the
Demised Premises (except if such condition is a direct result of Landlord's
failure to meet its obligations under this Lease) and upon notice from Landlord,
Tenant shall, at Tenant's cost and expense, defend any and all actions and
proceedings relating thereto.
15.2 Landlord agrees to indemnify and save harmless Tenant from and
against all claims, demands, liabilities, penalties, expenses and judgments
(including without limitation reasonable attorney's fees) based on damages or
bodily injuries to persons or property occasioned by acts or omissions,
including negligence of Landlord, its officers,
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agents, employees, representatives, customers, guests and invitees in the
conduct and operation of Landlord's business on the land, building, and
improvements, of which the Demised Premises form a part or arising out of the
use by Landlord or condition of the Demised Premises (except if such condition
is a direct result of Tenant's failure to meet its obligations under this Lease)
and upon notice from Tenant, Landlord shall, at Landlord's cost and expense,
defend any and all actions and proceedings relating thereto.
15.3 Subject to the following, neither the Tenant nor the Landlord, nor
their respective agents, servants, employees or invitees, shall be liable to the
other for loss or damage covered by any insurance policy. The liability of the
Tenant to indemnify the Landlord as set forth in subparagraph 5.1 hereof shall
not extend to any matter against which the Landlord shall be protected by
insurance; provided, however, that if any such liability shall exceed the amount
of the effective and collectable insurance in question, the Tenant shall be
liable for such excess. This Paragraph 5 shall survive the expiration or sooner
termination of this Lease.
ARTICLE 16
EXCULPATION
Notwithstanding anything to the contrary set forth in this Lease, it is
specifically understood and agreed by Tenant that there shall be absolutely no
personal liability on the part of the Landlord with respect to any of the terms,
covenants and conditions of this Lease, and Tenant shall look solely to the
equity, if any, of Landlord in the Demised Premises for the satisfaction of each
and every remedy of Tenant in the event of any breach by Landlord of any of the
terms, covenants and conditions of this Lease to be performed by Landlord; such
exculpation of personal liability to be absolute and without any exception
whatsoever.
ARTICLE 17
TRANSFERS BY LANDLORD
17.1 SALE, CONVEYANCE AND ASSIGNMENT. Nothing in the Lease shall restrict
the right of Landlord to deal with the Premises, subject only to the rights of
Tenant under this Lease.
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17.2 SUBORDINATION. This Lease is and shall be subject and subordinate in
all respects to any first mortgage now or hereafter encumbering the Premises and
to all renewals, modifications, supplements, consolidations and replacements
thereof (herein called the "First Mortgage"). Tenant agrees upon request by and
without cost to the Landlord or any successor in interest to execute promptly
and deliver to Landlord or the holder of the First Mortgage, a subordination and
attornment instrument(s) requested by the holder of the First Mortgage.
17.3 EXECUTION OF INSTRUMENTS. The subordination provisions of this
Article 15 shall be self-operating and no further instrument shall be necessary.
Nevertheless Tenant, on request by and without cost to Landlord or any successor
in interest, shall execute and deliver any and all instruments reasonably
requested by Landlord further evidencing such subordination.
ARTICLE 18
LENDING INSTITUTIONS
18.1 LENDER. Lessor has borrowed monies from the Rock Island Bank, an
Illinois banking institution ("Lender"), pursuant to the terms of a certain
promissory note made and entered into the 16th day of March, 1993 (the "Note");
and Lessor has executed and delivered to Lender a certain Mortgage, assignment
of lease and assignment of rents (the "Loan Documents") also dated the 16th day
of March, 1993 respecting the Premium leased to Lessee, to secure, in part, all
advances made or to be made to Lessor pursuant to the Note.
18.2 CONSENT. Lessee hereby acknowledges and consents to the prior
execution and recordation of the Loan Documents and to the right of Lender under
the Loan Documents to foreclose its Mortgage and to acquire the Premises at
foreclosure sale or be acceptance of a grant or assignment of the Premises in
lieu of foreclosure, and Lessee hereby consents to the sale or assignment of the
Premises by any person acquiring the Premises at the foreclosure sale or by
grant or assignment in lieu of foreclosure, and to any sale or assignment of the
Premises by any subsequent purchaser or assignee. Lessee's consent hereunder is
conditioned upon Lessor, Lessee and Lender entering into a Nondisturbance and
Attornment Agreement in the form attached hereto, marked Exhibit "C" and by this
reference made a part hereof.
18.3 NOTICES AND DEMANDS. No notice, demand, election, or other
communication required or permitted to be given under this Lease (all of the
foregoing
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hereinafter in this Section collectively being referred to as "notices," and
each of them, as a "notice") which shall be given by Lessee to Lessor shall be
binding upon or affect Lender, unless a copy of said notice shall be given to
Lender within the time when such notice shall be required or permitted to be
given to Lessor. In the case of an assignment of the Loan Documents or change in
address of Lender, the assignee thereof or Lender, by written notice to Lessee,
may change the address to which copies of notices are to be sent as herein
provided. Lessee shall not be bound to recognize any assignment of the Loan
Documents unless and until Lessee shall be given written notice of such
assignment, including a copy thereof in form proper for record, together with
the name and address of the assignee and, thereafter, until a further
assignment, the assignee named in such assignment shall be deemed to be Lender
hereunder. All notices and copies of notices to be given to Lender as provided
in this Section shall be given in the same manner as is provided in this Lease
in respect of notices to be given by Lessor or Lessee and shall be addressed as
follows:
The Rock Island Bank
230 18th Street
Rock Island, IL 61201
18.4 PERFORMANCE OF LEASE BY LENDER. Lender shall have the right to
perform any term, covenant, condition or agreement and to remedy any default by
Lessor hereunder, and Lessee shall accept such performance by Lender with the
same force and effect as if furnished by Lessor. Notwithstanding the above,
Lender's exercise of rights to perform actions on behalf of Lessor hereunder
shall not obligate Lender to continue all obligations of Lessor under the terms
of the Lease nor shall Lender be personally obligated to Lessee for any failure
or omission of Lessor hereunder the terms of this Lease.
18.5 NOTICE OF ELECTION TO TERMINATE LEASE. If Lessee shall give a notice
of default to Lessor pursuant to the provisions of this Lease, and if such
default shall not be remedied within the applicable grace period provided for in
this Lease, and Lessee shall thereby, or otherwise, become entitled to give a
notice of election to terminate this Lease, then, before giving any such notice
of election to terminate this Lease, Lessee shall allow Lender an additional
twenty (20) days within which to cure the default. The rights of Lender under
this Section 18 are in addition to such rights as are given to said Lender under
the previous paragraph.
18.6 DELEGATION OF LESSOR'S RIGHTS. Lessor may delegate to Lender the
authority to exercise any or all of Lessor's rights under this Lease, but no
such delegation shall be binding upon Lessee unless and until either Lessor or
Lender shall
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deliver to Lessee a signed counterpart, in form proper for record, of a written
instrument effecting such delegation. Such delegation of authority may be
effected by the terms of the Loan Documents themselves, in which case the
service upon Lessee of an executed counterpart of any of said Loan Documents in
accordance with this Section 18, together with a written notice specifying the
provisions therein which delegate such authority to said Lender, shall be
sufficient to give Lessee notice of such delegation. Any provision of this Lease
which gives to Lender the privilege of exercising a particular right of Lessor
hereunder on condition that Lessor shall have failed to exercise such right
shall not be deemed to diminish any privilege which Lender may have, by virtue
of a delegation of authority from Lessor, to exercise such right without regard
to whether or not Lessor shall have failed to exercise such right.
18.7 NONCURABLE DEFAULTS. In the case of a default by Lessor in the
performance or observance of any term, covenant, condition, or agreement on
Lessor's part to be performed under this Lease, if such default is of such a
nature that the same cannot practicably be cured by Lender, and provided Lessee
shall not be subjected to any criminal liability, then Lessee shall not serve a
notice of election to terminate this Lease pursuant to the terms thereof, or
otherwise terminate the leasehold estate of Lessor hereunder by reason of such
default, if and so long as Lender shall promptly institute and diligently
prosecute to completion foreclosure proceedings, unless, in the meantime, Lender
shall acquire Lessor's estate hereunder, either in its own name or through a
nominee, by assignment in lieu of foreclosure.
Lender shall not be required to continue to prosecute foreclosure
proceedings if and when such default shall be cured. Nothing herein shall
preclude Lessee from exercising any rights or remedies with respect to any other
default by Lessor during any period when Lessee shall be forbearing termination
of this Lease as above provided, but in such event Lender shall have all of the
rights and protections hereinabove provided. If Lender, or its nominee, or a
purchaser at a foreclosure sale, shall acquire title to the Premises, and shall
cure all defaults of Lessor hereunder, which, given the nature of such default,
can be cured by Lender, or by said purchaser, as the case may be, then the
defaults of any prior holder of the Premises hereunder which, due to the nature
of such default, cannot be cured by Lender (or by said purchaser) shall no
longer be deemed to be defaults hereunder.
18.8 TERMINATION OF LEASE: NEW LEASE TO LENDER. If this Lease shall
terminate by reason of a default of Lessor hereunder, and if within the
additional twenty (20) day grace period provided to Lender in this Section 18,
Lender, by written notice to Lessee, shall request Lessee to enter into a new
lease of the Premises on the same terms set forth herein, then Lessee shall
enter into a new lease (with Lender or its nominee), within
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thirty (30) days after the giving of said written notice by Lender.
Simultaneously with a giving of a notice pursuant to this Section 18, Lender
shall deliver to Lessee a written instrument unconditionally guaranteeing the
curing of all defaults of the Lessor under this Lease (other than defaults which
cannot be cured by Lender) and all defaults of the landlord under the new lease
which shall exist on the actual date of delivery of said new lease. Said new
lease shall commence, and rent and all obligations under the new lease shall
accrue, as of the date of termination of this Lease. The term of said new lease
shall continue for the period which would have constituted the remainder of the
term of this Lease had this Lease not been terminated, and shall be upon all of
the terms, covenants, conditions, conditional limitations, and agreements
contained herein which were in force and effect immediately prior to the
termination of this Lease. Said new lease, and this covenant, shall be superior
to all rights, liens, and interests, other than those to which this lease shall
have been subject immediately prior to termination and those matters to which
this Lease may, by its terms, become subject. The provisions of the immediately
preceding sentence shall be self-executing, and Lessee shall have no obligation
to do anything, other than to execute said new lease as herein provided. Each
subtenant of space in the Premises whose sublease was in force and effect
immediately prior to the delivery of said new lease shall attorn to the Lender,
or its nominee, under the new lease. Each subtenant who hereafter subleases
space within the Premises shall be deemed to have agreed to the provisions of
this paragraph. The foregoing shall not be deemed to obligate Lessee to keep any
sublease in force and effect after the termination of this Lease, nor shall
Lessee have any obligation to terminate any sublease or to dispossess any
subtenant. Simultaneously therewith, Lessee shall pay over to Lender any
rentals, less costs and expenses of collection, received by Lessee between the
date of termination of this Lease and the date of execution of said new lease,
from subtenants or other occupants of the Premises which shall not theretofore
have been applied by Lessee towards the payment of rent or any other sum of
money payable to Lessor hereunder or towards the cost of performing the
obligations of Lessor hereunder.
If Lender shall exercise its right to obtain a new lease pursuant to this
Section 18, but shall fail to execute such a new lease when tendered by Lessee,
or shall fail to comply timely with the other provisions of this Section 18,
then said Lender shall have no further rights to a new lease or any other rights
under this Section 18.
If Lender shall acquire title to Lessor's interest in this Lease, by
foreclosure of a mortgage thereon or by assignment in lieu of foreclosure or by
an assignment from a designee or wholly owned subsidiary corporation of such
Lender, or under a new lease pursuant to this section, such Lender may assign
such lease and shall thereupon be released from all liability for the
performance or observance of the covenants and
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conditions in such lease contained on landlord's part to be performed and
observed from and after the date of such assignment, provided that such Assignee
shall have assumed such lease in accordance with this Lease.
ARTICLE 19
NOTICES, ACKNOWLEDGMENTS, AUTHORITIES FOR ACTION
19.1 NOTICES. All notices from Landlord to Tenant hereunder shall be
sufficient if actually delivered in writing or sent by registered or certified
United States mail to the following address:
Norcross Safety Products L.L.C.
1136 2nd Street
Rock Island, Illinois 61201
Attention: Robert A. Peterson, President
All notices from Tenant to Landlord hereunder shall be sufficient if actually
delivered in writing or sent by registered or certified United States mail to
the following address:
MCRI, INC.
c/o MLC Companies
9300 Shelbyville Road, Suite 500
Louisville, Kentucky 40222
Attention: Michael L. Cappy
A notice mailed in accordance with the provision of this Section shall be deemed
to have been given when mailed. Either party may change its address for the
purpose of this Section by giving notice in writing to the other party of such
change in accordance with this Section.
19.2 ACKNOWLEDGMENTS. Each of the parties hereto shall at any time and
from time to time upon not less than twenty (20) days prior notice from the
other execute, acknowledge and deliver a written statement certifying:
A. that this Lease is in full force and effect, subject only to
such modifications (if any) as may be set out therein;
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B. that Tenant is in possession of the Premises and paying Rent
as provided in this Lease;
C. the dates (if any) to which Rent is paid in advance;
D. that there are not, to such party's knowledge, any uncured
defaults on the part of the other party hereunder, or specifying such
defaults if any are claimed; and
E. as true and accurate such other information concerning this
Lease or tenancy as may be reasonably required by any First Mortgage
lender.
Any such statement may be relied upon by any prospective transferee of
encumbrances of all or any portion of the Premises, or any assignee of any such
persons. If Tenant fails to timely deliver such statement, Tenant shall be
deemed to have acknowledged that this Lease is in full force and effect, without
modification except as may be represented by Landlord, and that there are no
uncured defaults in Landlord's performance.
ARTICLE 20
DEFAULT
20.1 INTEREST AND COSTS. Tenant shall pay monthly to Landlord interest at
a rate equal to the lesser of 15% per annum, or the maximum rate permitted by
applicable law, on all Rent required to be paid hereunder from the due date for
payment thereof until the same is fully paid and satisfied. Landlord may make
claim against Tenant to the extent provided by the laws of the State of Illinois
for all costs and charges (including reasonable legal fees) lawfully and
reasonably incurred in enforcing payment thereof, and in obtaining possession of
the Premises after default of Tenant or upon expiration or earlier termination
of the Term of this Lease, or in enforcing any covenant, provision or agreement
of Tenant herein contained.
20.2 RIGHT OF LANDLORD TO PERFORM COVENANTS. All covenants and agreements
to be performed by Tenant under any of the terms of this Lease shall be
performed by Tenant, at Tenant's sole cost and expense without any abatement of
Rent. If Tenant shall fail to perform any act on its part to be performed
hereunder, and such failure shall continue for thirty (30) days after written
notice thereof from Landlord, Landlord may (but shall not be obligated to)
perform such act without waiving or releasing Tenant from any
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-21-
of its obligations relative thereof. All sums paid or costs incurred by Landlord
in so performing such acts under this Article 17.2, together with interest
thereon at the rate set out in Article 17.1 from the date each such payment was
made or each such cost incurred by Landlord, shall be payable by Tenant to
Landlord on demand.
20.3 EVENTS OF DEFAULT. If and whenever:
A. part or all of the Rent hereby reserved is not paid when due,
and such default continues for seven (7) days after the due date thereof
and after five (5) days written notice thereof given by Landlord to Tenant;
or
B. Tenant's right to the Premises or any goods, chattels or
equipment of Tenant is taken or eligible in execution or in attachment or
if a writ of execution is issued against Tenant; or
C. Tenant becomes insolvent or commits an act of bankruptcy or
becomes bankrupt or takes the benefit of any statute that may be in force
for bankrupt or insolvent debtors or becomes involved in voluntary or
involuntary winding-up proceedings or if a receiver shall be appointed for
the business, property, affairs or revenues of Tenant; or
D. Tenant fails to observe, perform and keep each and every of
its covenants, agreements, provisions, stipulations and conditions herein
contained to be observed, performed and kept by Tenant and persists in such
failure after thirty (30) days written notice by Landlord requiring that
Tenant remedy, correct, desist or comply (or if any such breach would
reasonably require more than thirty (30) days to rectify, unless Tenant
commences rectification within the thirty (30) day notice period and
thereafter promptly and effectively and continuously proceeds with the
rectification of the breach), then and in any of such cases, Landlord
shall, at its option, have each, any or all of the following remedies in
addition to all other remedies available to it by law, statutory or
judicial, or in equity:
1. Terminate the Lease and take possession of the Leased
Premises.
2. Terminate the Lease and recover damages to the extent
permitted by statutory or case law in an amount equal to the unpaid
future rent less the fair rental value of the Leased Premises for
such residue of the term of the Lease or in any greater amount
permitted by law.
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3. Terminate Tenant's right to possession without
terminating the Lease or obligation to pay rent, whereupon Tenant
shall pay Landlord all unpaid rent for the entire term of the Lease
and the Landlord shall endeavor to lease the Leased Premises for the
account of Tenant. Any reasonable expense of remodeling or repair
shall be a charge against the rent received on reletting.
4. Any remedy permitted by Federal or State law.
5. The remedies granted to Landlord shall be cumulative
and the exhaustion of one shall not preclude Landlord resorting to
others.
6. In the event the default by Tenant consists of failure
to pay rental when due, Tenant shall have five (5) days after notice
to remedy the same and Landlord shall not enforce any of said
remedies during said five-day period.
7. The exercise of any remedy granted Landlord shall not
be considered an unlawful eviction or trespass.
20.4 SURRENDER. If and whenever Landlord is entitled to or does re-enter,
Landlord may terminate this Lease by giving notice thereof, and in such event,
Tenant shall forthwith vacate and surrender the Premises.
20.5 PAYMENTS. If Landlord shall re-enter or if this Lease shall be
terminated hereunder, Tenant shall pay to Landlord on demand:
A. rent up to the time of re-entry or termination, whichever
shall be the later;
B. all reasonable expenses incurred by Landlord in performing
any of Tenant's obligations under this Lease, re-entering or terminating
and re-letting, collecting sums due or payable by Tenant, realizing upon
assets seized (including brokerage, legal fees and disbursements), and the
expense of keeping the Premises in good order, repairing the same and
preparing them for re-letting; and
C. As damages for the loss of income of Landlord expected to be
derived from the Premises, the amount (if any) by which the Rent would have
been payable under this Lease exceeds the payments (if any) received by
Landlord from other tenants in the Premises, payable on the first day of
each
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month during the period which would have constituted the unexpired portion
of the Term had it not been terminated, or if elected by Landlord by notice
to Tenant at or after re-entry or termination, a lump sum amount equal to
the Rent which would have been payable under this Lease from the date of
such election during the period which would have constituted the unexpired
portion of the Term had it not been terminated, reduced by the rental value
of the Premises for the same period, established by reference to the terms
and conditions upon which Landlord re-lets then if such re-letting is
accomplished within a reasonable period after termination, and otherwise
established by references to all market and other relevant circumstances;
Rent and rental value being reduced to present worth at an assumed interest
rate of 10% on the basis for Landlord's estimates and assumptions of fact
which shall govern unless shown to be erroneous or unreasonable.
20.6 REMEDIES CUMULATIVE. No reference to nor exercise of any specific
right or remedy by Landlord shall prejudice or preclude Landlord from exercising
or invoking any other remedy in respect thereof, whether allowed at law or in
equity or expressly provided for herein. No such remedy shall be exclusive or
dependent upon any other such remedy, but Landlord may from time to time
exercise any one or more of such remedies independently or in combination.
ARTICLE 21
MISCELLANEOUS
21.1 RELATIONSHIP OF PARTIES. Nothing contained in this Lease shall
create any relationship between the parties hereto other than that of Landlord
and Tenant, and it is acknowledged and agreed that Landlord does not in any way
or for any purpose become a partner of Tenant in the conduct of its business, or
a joint venture or a member of a joint or common enterprise with Tenant.
21.2 CONSENT NOT UNREASONABLY WITHHELD. Except as otherwise specifically
provided, whenever consent or approval of Landlord or Tenant is required under
the terms of this Lease, such consent or approval shall not be unreasonably
withheld or delayed. Tenant's sole remedy if Landlord unreasonably withholds or
delays consent or approval shall be an action for specific performance, and
Landlord shall not be liable for damages. If either party withholds any consent
or approval, such party shall on written request deliver to the other party a
written statement giving the reasons therefor.
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21.3 NAME OF BUILDING. Landlord shall have the right, after thirty (30)
days notice to Tenant, to change the name, number or designation of the
Premises, during the Term without liability to Tenant.
21.4 APPLICABLE LAW AND CONSTRUCTION. The rights and remedies contained
in this Lease with respect to the Premises shall be governed by and construed
under the laws of the State of Illinois. The provisions contained herein shall
be construed as a whole according to their common meaning and not strictly for
or against Landlord or Tenant. The words Landlord and Tenant shall include the
plural as well as the singular. Time is of the essence of this Lease and each of
its provisions. The captions of the Articles are included for convenience only,
and shall have no effect upon the construction or interpretation of this Lease.
21.5 AMENDMENT OR MODIFICATION. Unless otherwise specifically provided in
this Lease, no amendment, modification or supplement to this Lease shall be
valid or binding unless set out in writing and executed by the parties hereto in
the same manner as the execution of this Lease.
21.6 CONSTRUED COVENANTS AND SEVERABILITY. All of the provisions of this
Lease are to be construed as covenants and agreements as though the words
importing such covenants and agreements were used in each separate Article
hereof. Should any provision of this Lease be or become invalid, void, illegal
or not enforceable, it shall be considered separate and severable from the Lease
and the remaining provisions shall remain in force and be binding upon the
parties hereto as though such provision had not been included.
21.7 NO IMPLIED SURRENDER OR WAIVER. No provisions of this Lease shall be
deemed to have been waived by Landlord unless such waiver is in writing signed
by Landlord. Landlord's waiver of a breach of any term or condition of this
Lease shall not prevent a subsequent act, which would have originally
constituted a breach, from having all the force and effect of any original
breach. Landlord's receipt of Rent with knowledge of a breach by Tenant of any
term or condition of this Lease shall not be deemed a waiver of such breach. No
act or thing done by Landlord, its agents or employees during the Term shall be
deemed an acceptance of a surrender of the premises, and no agreement to accept
a surrender of the Premises shall be valid, unless in writing signed by
Landlord. The delivery of keys to any of Landlord's agents or employees shall
not operate as a termination of this Lease or a surrender of the Premises. No
payment by Tenant, or receipt by Landlord, of a lesser amount that the Rent due
hereunder shall be deemed to be other than on account of the earliest stipulated
Rent, nor shall any endorsement or statement on any check or any letter
accompanying any check, or
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payment as Rent, be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such Rent or pursue any other remedy available to Landlord.
21.8 SUCCESSORS BOUND. Except as otherwise specifically provided, the
covenants, terms, and conditions contained in this Lease shall apply to and bind
the heirs, successors, executors, administrators and assigns of the parties
hereto.
21.9 SEVERABILITY. It is agreed by the parties hereto that if any one of
the provisions of this Lease shall contravene or be invalid under applicable
law, such contravention shall not be deemed to invalidate the whole Lease but it
shall be construed as if not containing that particular provision or provisions
and the rights and obligations of the parties shall be construed accordingly.
21.10 FORCE MAJEURE. Whenever a period of time is herein prescribed for
action to be taken by Landlord or Tenant, such party shall not be liable or
responsible for any delays due to strikes, lockouts or other labor or industrial
disturbance (whether or not on the part of the employees of either party
hereto), civil disturbance, order of any government, court or regulatory body
claiming jurisdiction, act of any public enemy, war, riot, failure or inability
to secure materials, supplies or labor through ordinary sources by reason of
shortages or priority or similar regulation or order of any government or
regulatory body, lightning, earthquake, fire, storm, hurricane, tornado, flood,
washout, explosion or any cause whatsoever beyond the reasonable control of the
party from whom such performance is required, or any of its contractors or other
representatives, whether or not similar to any of the causes hereinabove stated;
PROVIDED, HOWEVER, such delay shall be deemed to exist only so long as the party
obligated to perform promptly and in any event within 30 days after the initial
cause of the delay notifies the other party in writing of such delay and
exercises due diligence to remove or overcome it.
IN WITNESS OF THIS LEASE, Landlord and Tenant have properly executed it as
of the date set out on page one.
"Landlord"
MCRI, INC.
By:
-----------------------------------
Michael L. Cappy, Chairman
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<Page>
IN WITNESS OF THIS LEASE, Landlord and Tenant have properly executed it as
of the date set out on page one.
"Landlord"
MCRI, INC.
By: /s/ Michael L. Cappy
-----------------------------------
Michael L. Cappy, Chairman
"Tenant"
NORCROSS SAFETY PRODUCTS L.L.C.
By: /s/ Robert A. Peterson
-----------------------------------
Title: President and Chief Executive Officer
--------------------------------------