EXHIBIT 10.20
LEASE
THIS LEASE, dated for reference purposes as October 15, 1997, together with
Addendum No. 1 of same date, (collectively, "Lease") is made and entered into by
and between LPR PARTNERSHIP, a Nebraska general partnership, hereinafter called
"Lessor", and TECHNICAL PRODUCTS GROUP, INC., a Delaware corporation qualified
to do business in Nebraska, by and through its division, LINCOLN COMPOSITES,
hereinafter called "Lessee", WITNESSETH:
1. PREMISES LEASED: Subject to the terms and conditions herein
contained, the Lessor hereby leases to the Lessee the following described
premises, hereinafter called the "premises", to wit;
All that south portion (shown as all that portion which is not
cross-hatched on Exhibit A, attached hereto and incorporated herein by
this reference) of the building ("Building") known as C-3 at 0000
Xxxxxxxx Xx., Xxxxxxx, Xxxxxxxx 00000,
comprising an area of 27,396 square feet. And being a part of a building
containing a total of 45,000 square feet. The "premises" may be enlarged, as set
forth in Addendum No. 1.
2. TERM: This lease shall become effective on December 1, 1997 and shall
continue, subject to the option set forth in Addendum No. 1 to extend the term,
for an initial term of seven months ending June 30, 1998, but automatically
renewing for successive six month terms thereafter until December 31, 2002,
unless: (i) Lessee has terminated the Lease by giving at least 60 days written
notice prior to the end of any term, which, in the case of the initial term,
shall be on or before May 1, 1998, or (ii) Lessor has terminated this Lease by
giving at least 60 days written notice prior to the end of any term and by
offering substantially similar space at a different location, but at the same
rental rate, or (iii) the term has been superseded by conversion to a full
Building lease, as contemplated by Section 1.1 B and C in Addendum No. 1, or
(iv) this Lease is sooner terminated as hereinafter provided. "Term", as used in
this Lease, shall refer to the initial term and to all extensions and renewals,
unless the specific context clearly has another meaning.
3. USE: The Lessee shall use and occupy the premises for a warehouse and
related activities and manufacturing and related activities and for no other
purpose. The Lessee shall not use the premises nor permit them to be used for
any unlawful business or purpose whatsoever.
4. RENTAL: The Lessee shall pay to the Lessor rent, computed as set
forth below, in monthly installments in advance on the first day of each month
throughout the term of this Lease. Rents shall be computed based on the square
footage comprising the premises. The following chart reflects the per square
foot rents payable for all terms, including initial term, renewal, and the
option terms (as described in Addendum No. 1):
RENT/SG. FT. # OF MONTHS DATES MONTHLY RENT FOR 27,396 SG. FT.
------------ ----------- ----- -------------------------------
$3.65 1 - 31 12/1/97 - 6/30/2000 $8,332.95
$3.90 32-61 7/1/2000 - 12/31/2002 $8,903.70
$4.15 OPTION 1/L/2003 - 6/30/2005 ONLY APPLIES TO 45,000 SQ. FT.
62 - 91
$4.40 OPTION 7/L/2005 - 12/31/2007 ONLY APPLIES TO 45,000 SQ. FT.
92 - 121
In the event Lessee shall take possession of the premises, or the term should
otherwise begin, on a day other than the first day of the month, then rent shall
be immediately paid for such fractional month prorated on the basis of a thirty
(30) day month and the term of the Lease shall commence on the 1st day of the
month next succeeding. PAYMENT OF RENT IN THE AMOUNT OF $8,332.95 FOR THE MONTH
OF DECEMBER, 1997, IS HEREBY ACKNOWLEDGED. If the monthly rental as established
herein is not received by Lessor on or before the 5th day of each calendar
month, Lessee agrees to pay the Lessor a late charge of five percent (5%), or
such amount as applicable law may allow, on each monthly rental received after
the 5th day of the month. In the event that the beginning of
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the term of the Lease shall be subsequent to the effective date as set forth in
Paragraph 2, the term of this Lease shall not extend beyond the ending date
provided in Paragraph 2.
SECURITY DEPOSIT: No Security Deposit shall be paid in connection with
this Lease.
5. UTILITIES AND OTHER SERVICES: The Lessor shall not be required to
furnish to the Lessee any utilities or services of any kind.
6. REPAIR AND MAINTENANCE: The Lessee shall, at his sole expense, keep
the interior of the premises, including all windows, doors and glass, in as good
order and repair as it was upon the commencement of this lease, reasonable wear
and tear and damage by fire excepted. Lessee shall also maintain the premises in
a clean and orderly condition, and shall not cause the exterior of the building
or any part of the real property upon which the premises are situated to become
littered, disorderly or unsightly in any manner. The Lessor shall keep the
structural supports, exterior walls and roof of the building in good order and
repair and shall be responsible for the operation and maintenance of all common
areas and facilities as hereinafter provided. The Lessee shall also maintain in
good order and repair all equipment installed and used for the purpose of
heating and air conditioning of the leased premises wherever such equipment may
be located. On default of Lessee in making such repairs, replacements or
maintaining a clean and orderly condition, Lessor may, but shall not be required
to, make such repairs, replacements or cleaning or shall take other necessary
action for Lessee's account, and the expense thereof shall be payable by Lessee
to Lessor within ten days after written notice thereof. Any damage caused or
repairs necessitated with respect to the leased premises or the building and
real property of which the leased premises are a part, by excessive wear and
tear resulting from the operation of the business of Lessee, or from willful or
negligent acts on the part of Lessee, its employees, agents, invitees or
contractors, shall be the responsibility of Lessee and Lessee shall reimburse
Lessor for any expense incurred in connection therewith.
7. LESSEE'S PROPORTIONATE SHARE OF COSTS OF COMMON AREAS AND FACILITIES:
In addition to the rental payable pursuant to Paragraph 4 hereof, the Lessee
shall pay to the Lessor upon demand a proportionate share of the cost of
operating and maintaining all common areas and facilities, including without
limitation all parking areas, access roads, sidewalks, landscaped space and
other space used in common or available for use in common by the Lessee or his
customers, employees, agents or other invitees. Operating and maintaining such
areas and facilities shall include without limitation exterior and parking area
lighting, cleaning, snow removal, line painting, care of grass, shrubs and
plants, payment of water and sewerage charges, maintenance, repair and
replacement of utility systems, and general maintenance of all areas and
facilities provided by the Lessor for the common use of the occupants of the
building. The term "proportionate share" as used in this paragraph or elsewhere
in this lease shall mean such proportionate part of the total costs to which
said share applies as the total square feet of floor area occupied by the Lessee
bears to the total square feet of rentable floor area in the building or
buildings associated with said common areas. Tenant's percentage share of
operating expenses is 60.88%, based upon 27,396 square feet of rented space
divided by 45,000, the total net rental space in the Building.
8. ADDITIONAL RENT: Lessee hereby covenants and agrees to pay the basic
rent hereby reserved as and when due, and also all sums of money, charges or
other amounts required to be paid by Lessee to Lessor or to another person under
this lease which charges or amounts shall be considered "rent" in addition to
the rent provided for herein.
9. USE OF PARKING FACILITIES: The Lessee and its employees and customers
shall have the nonexclusive right, in common with the Lessor and other tenants
of said building, to park automobiles in the parking area provided by the
Lessor, subject to such reasonable rules and regulations as the Lessor may from
time to time impose, including the designation of specific areas in which
automobiles of the Lessee and his employees must be parked.
10. CHARGES FOR UTILITIES: The Lessee shall pay all charges for gas,
electricity, light, heat, power, water and telephone used or supplied upon or in
connection with the premises and shall indemnify the Lessor against any
liability on account thereof. It is the intention that Lessee pay for all
utilities for the premises of any kind and, accordingly, Lessee shall pay its
proportionate share of any utility charge relating to or used in or at the
premises, but which is not separately metered thereto. For the initial three
months of the term, Acton Ltd., the tenant in the adjacent space in the
Building, shall pay utilities for the Building and xxxx Lessee herein for its
proportionate share.
11. CONDITION OF PREMISES: Except with respect to environmental
conditions that may exist on the premises including, but not limited to, soil
and groundwater contamination, the Lessee has examined the premises and is
satisfied with the "AS IS" physical condition thereof, including all equipment
and appurtenances, and his taking possession thereof shall be conclusive
evidence of his receipt thereof in good and satisfactory order and repair,
unless otherwise specified therein. Lessee acknowledges that no representation
as to the condition or repair of the premises has been made by or on behalf of
the Lessor, except as herein
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expressed, and likewise acknowledges that no representation as to the condition
or repair of the premises has been made by or on behalf of the Lessor, except as
herein expressed, and likewise acknowledges that no agreement or promise to
decorate, alter, repair or improve the premises including all equipment and
appurtenances, either before or after the execution hereof, has been made by or
on behalf of the Lessor, except as stated herein. Except with respect to
environmental conditions that may exist on the premises including, but not
limited to, soil and groundwater contamination, the occupancy by Lessee of the
leased premises shall constitute an acknowledgment by Lessee that the leased
premises are in the condition called for by this Lease and that Lessor has
performed all of the Lessor's work with respect thereto and that all
construction and/or remodeling required in accordance with the terms of this
Lease have been fully and satisfactorily completed in accordance with the terms
hereof Lessee shall have the right, but not the obligation, to conduct
environmental investigations on the premises including, but not limited to, soil
arid/or groundwater sampling at any time during the initial term or extension of
the Lease.
12. RESTRICTIONS ON ASSIGNMENT, SUBLETTING AND USE:
12.1 ASSIGNMENT AND SUBLETTING. Lessee agrees not to assign or in
any manner transfer this Lease or any estate or interest therein without the
previous written consent of Lessor which consent should not be unreasonably
withheld; and, not to sublet the premises or any part or parts thereof or allow
anyone to come in with, through or under him without like consent. Any change in
control of Lessee shall be deemed a transfer, which will require prior written
consent of Lessor. Consent by the Lessor to one assignment of this Lease or to
one subletting or to any other occupancy of said premises shall not operate to
exhaust the Lessor's right hereunder.
12.2 USE. Lessee shall not use or permit the premises to be used
for any purpose other than as above stated, nor keep or store in or about the
premises anything which will increase the rate of insurance on the building, nor
permit any change in occupancy or any transfer of this Lease by operation of law
or otherwise, nor make any alterations, additions or improvements, without the
written consent of the Lessor first obtained. Lessee will not invalidate any
policies of insurance now or hereafter in force with respect to said building
and will pay all extra insurance premiums if any, required on account of extra
risk caused by the Lessee's use of the premises. Any construction, remodeling,
additions, improvements or fixtures, except movable office furniture and trade
fixtures, shall be made or installed by the Lessee upon the premises only after
the Lessor has given written consent hereto, and shall become the property of
the Lessor, and shall remain and be surrendered in good condition with the
premises as a part thereof at the termination of this Lease, by lapse of time or
otherwise. If Lessor is required in its sole discretion to make alterations or
improvements to the premises as a result of the nature of Lessee's business,
whether to comply with the provisions of Paragraph 12 or otherwise, Lessee shall
bear the cost thereof. Lessee agrees to pay promptly for any work done or
material furnished in or about the premises and not to suffer or permit any lien
to attach to the premises and Lessee further agrees to cause any such lien or
any claims therefor to be released promptly; provided, however, that in the
event Lessee contests any such claim, Lessee agrees to indemnify and secure
Lessor to Lessor's satisfaction. Notice is hereby given that no mechanic's or
materialmen's or other liens sought to be taken or vested on the premises or the
building of which the premises is a part shall in any manner affect the right,
title or interest of the Lessor therein, and that Lessee shall have no authority
from Lessor to permit or create any such lien. No Items of any kind shall be
stored or left for any period of time outside of the confines of the leased
premises without the prior written consent of Lessor. Lessee shall maintain a
constant temperature of no less than 35 degrees Fahrenheit in the leased
premises.
13. COMPLIANCE WITH LAW: The Lessee shall accomplish any construction or
remodeling with respect to the leased premises (including any plans relating
thereto), and shall keep the premises and operate his business therein, in a
manner which shall be in material compliance with all applicable laws,
ordinances, rules and regulations of the city, county, state and federal
government and any department thereof, will not permit the premises to be used
for any unlawful purpose, and will protect the Lessor and save Lessor and the
premises harmless from any and all fines and penalties that may result from or
be due to any infractions of or non-compliance with such laws, ordinances, rules
and regulations, except where such fines or penalties relate to conditions
existing on the premises prior to the effective date of this Lease.
13.1 USE OF HAZARDOUS MATERIALS. Lessee shall not allow
non-controlled release of hazardous materials as defined by the Environmental
Protection Agencies of the State or Federal Governments. Lessee shall keep the
premises in material compliance with any and all federal, state and local laws,
ordinances and regulations relating to industrial hygiene or to environmental
conditions on the premises.
13.2 INDEMNIFICATION. Lessee hereby agrees to indemnify and hold
harmless Lessor and any successors to Lessor's interest, from and against any
and all claims, damages and liabilities arising in connection with the Lessee's
presence, use, storage, disposal or transport of any hazardous materials on,
from or about the premises or the property on which the premises are located,
from and after the date of this Lease. Lessor hereby agrees to indemnify and
hold harmless Lessee from and against
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any and all claims, damages and liabilities arising in connection with the use,
storage, disposal or transport of any hazardous materials on, from or about the
premises or the property on which the premises are located prior to the date of
this Lease or after the date of this Lease if unrelated to Lessee's use,
storage, disposal or transport of any hazardous materials. The indemnification
obligations set forth in this paragraph shall survive the termination or
expiration of this Lease.
13.3 NOTICE. Should Lessor or Lessee, during the term of this
Lease, become aware of any material non-compliance with any federal, state or
local laws, ordinances or regulations relating to industrial hygiene or to
environmental conditions on the premises, it shall immediately notify the other
party. The responsible party shall promptly take steps necessary to achieve
material compliance with such laws, ordinances or regulation.
14. TERMINATION PRIVILEGES UPON DAMAGE BY FIRE OR OTHER CASUALTY: In
case the premises, or any part thereof, "I at any time be destroyed or damaged
by fire or other casualty, without the fault of the Lessee, so that the same
shall be unfit for use or occupancy, then the rent hereby reserved, or a fair
and just proportion thereof, according to the nature and extent of the damage
sustained in loss of use or occupancy, shall be suspended, cease to be payable
and so continue until the premises shall be rebuilt or made fit for use and
occupancy. If such damage to the premises or to the building in which the
premises are situated is to the extent of fifty percent (50%) or more, or, if
the premises have been damaged to the extent that they can no longer be utilized
as an integrated whole, then this Lease may be terminated at the election of the
Lessee or Lessor, notice of which election, if exercised, shall be given in
writing within forty-five (45) days from the date of casualty. In the event that
the building containing the premises is totally destroyed or work to put the
premises in tenant able condition is not commenced within forty-five (45) days
from the time of such damage and continued thereafter, with reasonable
diligence, all things being considered, then this Lease may be terminated at the
election of the Lessee, notice of which election, if exercised, must be given in
writing within sixty (60) days from the date of casualty or at any time
thereafter during the period of repair if the work to put the premises in tenant
able condition is not being pursued with reasonable diligence.
15. PERSONAL PROPERTY AT RISK OF LESSEE: Except as provided in
paragraphs 13.2 and 30, all personal property in the premises shall be at the
risk of the Lessee only. Except as provided in paragraphs 13.2 and 30, the
Lessor shall not be or become liable for any damage to such personal property,
to the premises or to Lessee or any other persons or property as a result of
water leakage, sewerage, electric failure, gas or odors or for any damage
whatsoever done or occasioned by or from any plumbing, gas, water or other pipes
or any fixtures, equipment, wiring or appurtenances whatsoever, or for any
damage caused by water, snow or ice being or coming upon the premises, or for
any damage arising from any act or neglect of other tenants, occupants or
employees of the building in which the premises are situated or arising by
reason of the use of, or any defect in, said building or any of the fixtures,
equipment, wiring or appurtenances therein, or by the act or neglect of any
other person or caused in any other manner whatsoever.
16. INSURANCE PROVIDED BY LESSEE: During the term of this lease, the
Lessee shall, at his own expense and with a company satisfactory to Lessor,
provide and maintain in full force and effect an insurance policy or policies
protecting the Lessor and Lessee and their officers and employees against any
loss, liability or expense from personal injury, death, property damage or
otherwise arising or occurring upon or in connection with the premises or by
reason of the Lessee's operations upon or occupancy of the premises. The Lessor
shall be an additional insured under such policy or policies. Such insurance
shall be written by responsible insurance companies satisfactory to Lessor and
shall be in an amount not less than $500,000 for injuries to any one person, not
less than $1,000,000 for injuries to more than one person arising out of any one
accident or occurrence, and not less than $100,000 for damage to property. All
such policies shall contain endorsements waiving the insurer's rights of
subrogation against Lessor for any reason. Certificates of insurance showing
compliance with the foregoing requirements shall be furnished by the Lessee to
the Lessor. Such certificates shall state that policies will not be canceled nor
altered without at least ten (10) days prior written notice to the Lessor.
17. [Intentionally left blank.]
18. CONDEMNATION OF PREMISES: In the event that the whole of the demised
premises shall be condemned or taken in anymanner for any public or any
quasi-public use, this lease shall terminate as of the date of vesting of title.
In the event that either a portion of the premises or the building of which the
premises are a part is condemned or taken by eminent domain proceedings so as to
render the premises substantially unusable, then in such event, Lessee shall
have the right to cancel and terminate this agreement as of the date of such
taking upon giving to Lessor notice in writing of such election within thirty
(30) days after the receipt by Lessee from Lessor of written notice of such
appropriation or taking. In the event that only a part of the premises shall be
so condemned or taken and such taking shall not render the premises
substantially unusable, then, effective as of the date of vesting of title, the
rent hereunder for such part shall be equitably abated and this lease shall
continue as to such part not so taken. In the event that only a part of the
building shall be so condemned or taken, then if substantial structural
alteration
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or reconstruction of the building shall, in the reasonable opinion of Lessor, be
necessary or appropriate as a result of such condemnation or taking (whether or
not the premises be affected), Lessor may, at its option, terminate this lease
and the term herein granted as of the date of such vesting of title by notifying
Lessee in writing within sixty (60) days following the vesting of title. Any
termination hereunder shall be without prejudice to the rights of either the
Lessor or the Lessee to recover compensation from such public authority for any
loss or damages caused by such taking. Neither Lessor nor Lessee shall have any
right in or to any award made to the other by such public authority; provided,
however, to the extent that Lessee is not allowed by local law to make a
recovery against such public authority, Lessor shall receive such condemnation
award and Lessee hereby expressly assigns to Lessor any and all right, title and
interest in and to such award.
19. LESSEE'S PAYMENT OF PORTION OF INCREASE IN TAXES AND INSURANCE:
During the term of this Lease and any extension or renewal thereof, the Lessee
shall annually pay, as an additional obligation hereunder, its proportionate
share (as hereinbefore defined) of any increase in the amount of the regular
real estate taxes becoming due and payable during each year with respect to the
land and building of which the premises form a part over and above the amount of
such taxes due and payable in the annual period from JANUARY 1, 1997 TO DECEMBER
31, 1997. Such additional payment shall be made within ten (10) working days
after notice of payment by the Lessor. A tax xxxx shall be sufficient evidence
of the amount of any such taxes. If this Lease or any extension or renewal
thereof shall terminate on a date other than the last day of the calendar year,
then such tax payment shall be computed as above provided on a prorate basis for
that portion of the calendar year which shall have elapsed up to and including
such termination date.
Lessor shall maintain at all times during the term of this Lease, fire
and extended coverage insurance on the building and improvements of which the
premises are a part in an amount adequate to cover the cost of replacement in
the event of loss. Lessee shall pay its proportionate share, as defined herein,
of any increases in the premium for such insurance over the premium presently
being paid FOR 1997, THE BASE YEAR; provided, however, that said increase is not
occasioned by some act or emission on the part of Lessor or by some act or
emission of one or more of the other tenants in the building. Such additional
payment shall be made within ten (10) days after demand therefor by Lessor. A
copy of an invoice from the insurance company shall be sufficient evidence of
the amount of any such increase.
20. LESSEE'S DEFAULT, BANKRUPTCY, ETC: Should a petition in bankruptcy
be filed by the Lessee, whether for reorganization, rehabilitation or otherwise,
or should the Lessee be adjudged bankrupt or insolvent by any court, or should a
trustee or receiver in bankruptcy or a receiver of any property of the Lessee by
appointed in any suit or preceding by or against the Lessee, this Lease shall
automatically terminate unless the lessor shall waive such termination provision
in writing delivered to the Lessee within fifteen days after the date when
Lessor has received notice of such occurrence. Should default be made by the
Lessee in the payment of rental herein reserved, or any part thereof or any
other payments provided herein to be made, when and as herein provided; or
should Lessee make default in performing, fulfilling, keeping or observing any
of the Lessee's other covenants, conditions, provisions or agreements herein
contained after 30 days notice from the Lessor, or should the premises become
vacant or abandoned, or should this Lease by operation of law pass to any person
other than the Lessee, or should the leasehold interest be levied upon under
execution, then and in any of such events, the Lessor may, if the Lessor so
desires without demand or notice to the Lessee or any other person, at once
declare this Lease terminated and reenter the premises without a formal notice
or demand and hold and enjoy the same thence forth as if this Lease had riot
been made, without prejudice, however, to any right of action or remedy of the
Lessor in respect to any breach by the Lessee of any of the covenants herein
contained, including, but not limited to, all of those remedies set forth
hereinafter. Should any of the events hereinbefore specified occur, whether or
not Lessor has elected to terminate this Lease as provided herein, the Lessor
shall nevertheless have and is hereby given the right to reenter the premises,
with legal process, and to remove the Lessee's signs and all property and
effects of the Lessee or other occupants of said premises, and if the Lessor so
desires, to relet the premises or any part thereof upon such terms, to such
person or persons and for such period or periods as may seem proper to the
Lessor. In case of such reletting, the Lessee shall be liable to the Lessor for
the difference between the rents and payments herein reserved and agreed upon
for the residue of the entire stipulated term of this Lease and the net rent for
such residue of the term realized by the Lessor by such reletting, such net rent
to be determined by deducting from the entire rent received by Lessor from such
reletting the expenses of recovering possession, reletting, altering and
repairing the premises and collecting rent therefrom; and the Lessee hereby
agrees to pay such deficiency each month as the same may accrue, the Lessee to
pay to the Lessor, within five (5) days after the expiration of each month
during such residue of the term, the difference between the rent and payment for
said month as fixed by this Least and the net amount realized by the Lessor from
the premises during said month. At Lessor's option, and at any time after the
occurrence of an event of default as hereinbefore specified, whether or not the
Lessor has collected any additional rentals or monthly deficiencies after the
occurrence of such event of default, and whether or not the Lessor has elected
to terminate this Lease, the Lessor shall be entitled to recover from the
Lessee, and the Lessee shall pay to the Lessor, on demand, as and for liquidated
and agreed to final damages for the Lessee's default, an amount equal to the
difference between the rent and additional rent reserved hereunder for the
unexpired portion of the Lease term and the then fair and reasonable rental
value of the leased property for the same period.
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In the computation of such damages, the difference between any installment of
rent becoming due hereunder after the date of termination and the fair and
reasonable rental value of the leased property for the period for which such
installment was payable shall be discounted to the date of termination at the
rate of four percent (4%) per annum. If the premises or any part thereof is
relet by the Lessor for the unexpired term of this Lease, or any part thereof,
before presentation of proof of such liquidated damages to any court,
commission, or tribunal, the amount of rent reserved upon such reletting shall
be deemed prima facie to be the fair and reasonable rental value for the part of
the whole of the leased premises so relet during the term of the reletting
period.
21. ADDITIONAL PAYMENTS: All taxes, insurance premiums, costs and
expenses which the Lessee assumes or agrees to pay hereunder shall constitute
contractual obligations of Lessee hereunder, and in the event of nonpayment the
Lessor shall have all of the rights and remedies herein provided for in the case
of nonpayment of rent or breach of condition, and may consolidate such
obligations or pursue remedies individually.
22. RULES AND REGULATIONS: The Lessee shall materially comply with all
such reasonable rules and regulations as do not conflict with the provisions of
the lease and as Lessor may establish uniformly through the building from time
to time provided that Lessee is notified in writing thereof.
23. SIGNS AND OTHER IDENTIFICATION: Except as required by federal, state
or local laws, regulations or ordinances, Lessee shall not place or erect any
signs or identifying marks, insignia or advertising on or about the leased
premises or the building or real property of which the leased premises are a
part except in conformity with rules and regulations established in that regard
under Paragraph 22, or in the absence of such rules and regulations, in
conformity with the sign or identification currently being provided by Lessor
for other tenants in the subject building. Any sign or identification provided
by Lessor shall be at Lessee's expense. In the event Lessee shall place or
caused to be placed any sign, identifying marks, trade xxxx, insignia or
advertising on or about the leased premises or the building or real property of
which the leased premises are a part, and if the same do not comply with the
terms and provisions of this Paragraph, Lessor shall have the right and power to
remove the same at Lessee's expense. Any damage caused to the leased premises or
the building as a result of the installation of such non-conforming item, or the
subsequent removal thereof by Lessor, shall be the responsibility and obligation
of Lessee and Lessee shall immediately reimburse Lessor in an amount sufficient
to repair such damage. In the event Lessee shall desire to use any sign or
identification other than the sign or identification currently being provided by
the Lessor or not in conform with said rules and regulations, Lessee shall first
receive written consent from Lessor before placing or erecting any signs or
other identification or advertising and the same shall be purchased from and
installed by Lessor at Lessee's expense.
24. SUBORDINATION OF LEASE TO MORTGAGES: This lease shall be subject and
subordinate at all times to the lien of existing mortgages and of mortgages
which hereafter may be made a lien on the premises. Although no instrument or
act on the part of the Lessee shall be necessary to effectuate such
subordination, the Lessee will nevertheless execute and deliver such further
instruments subordinating this lease to the lien of any such mortgages as may be
desired by the mortgagee. The Lessee hereby irrevocably appoints the Lessor his
attorney-in-fact to execute and deliver any such instrument for the Lessee.
Provided, however, and notwithstanding the foregoing provisions hereof, upon
foreclosure of the mortgage with the mortgagee succeeding to the rights of the
Lessor, the Lessee shall, at the option of said mortgagee, attorn to the
mortgagee as follows:
(a) Lessee shall be bound to the mortgagee under all of the terms of the
lease for the balance of the term hereof remaining with the same force and
effect as if the mortgagee were the Lessor under the lease, and Lessee hereby
attorn to the mortgagee as its Landlord, such adornment to be effective and
self-operative, without the execution of further instrument on the part of
either of the parties hereto, and immediately upon the mortgagee succeeding to
the interest of Lessor under this lease and having given written notice of the
same to Lessee. The respective rights and obligations of Lessee and of the
mortgagee upon such adornment shall to the extent of the remaining term of the
lease be the same as now set.
(b) The mortgagee shall be bound to the Lessee under all of the terms of
this lease, and the Lessee shall, from and after such event, have the same
remedies against the mortgagee for the breach of an agreement contained in this
lease that the Lessee might have had under lease against, the Lessor hereunder.
In no event, however, shall the mortgagee be liable for any act or omission of
any prior Lessor, be subject to any offsets or defenses which Lessee might have
against any prior Lessor, or be bound by any rent or additional rent which the
Lessee might have paid to any prior Lessor for more than the current month.
25. SURRENDER INVALID UNLESS WRITTEN: No surrender of the premises for
the remainder of the term hereunder shall be binding upon the Lessor unless
accepted by the Lessor in writing. Without limiting the generality of the
foregoing, it is agreed that the receipt or acceptance of the keys to the
premises by the Lessor shall not constitute an acceptance of a surrender of the
premises.
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26. HOLDING OVER: If the Lessee shall remain in possession of the
premises after the expiration of either the original term of this lease or any
extended term, such possession shall be as a month-to-month tenant only. During
such month-to-month tenancy, unless otherwise agreed in writing by Lessor, rent
shall be payable at one and one-half times the rate as that in effect during the
last month of the preceding term, and the provisions of this Lease shall
otherwise be applicable.
27. WAIVER: One or more waivers of any provision of this lease by the
Lessor shall not be construed as a waiver of a subsequent breach of the same
provision, and the Lessor's consent or approval to or of any act by the Lessee
requiring such consent or approval shall not be deemed to waive or render
unnecessary the Lessor's consent or approval to or of any subsequent similar act
by the Lessee.
28. NOTICES: Any and all notices or demands required or permitted to be
given hereunder shall be deemed to be properly served if sent by registered or
certified mail, postage prepaid, or by facsimile, with transmission confirmed,
addressed to the Lessor at
LPR PARTNERSHIP
0000 Xxxxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Phone 000-000-0000
FAX 000-000-0 101
or addressed to the Lessee at TECHNICAL PRODUCTS GROUP, INC.
LINCOLN COMPOSITES DIVISION
0000 Xxxxxxxxxx Xxx.
Xxxxxxx, Xxxxxxxx 00000
Phone 000-000-0000
FAX 000-000-0000
or at such other address or addresses as either party may hereafter designate in
writing to the other. Any notice or demand so mailed shall be effective for all
purposes at the time of deposit thereof in the United States mail.
Lessee is hereby notified that certain partners of LPR Partnership,
the Lessor herein, hold Nebraska Real Estate licenses.
29. NO OTHER AGREEMENTS: This Lease contains the entire understanding
and agreement of the parties, supersedes all prior understandings and agreements
and cannot be revised, adjusted or modified unless in writing signed by the
party against whom the same is to be enforced.
30. INDEMNIFICATION: Except for claims arising out of acts caused by
the affirmative negligence of Lessor or its representatives, Lessee shall
indemnify and defend Lessor and the leased property, at Lessee's expense,
against all claims, expenses and liabilities, including but not limited to
reasonable attorneys' fees incurred in successfully pursuing any of Lessor's
legal remedies hereunder or in defending itself in legal proceedings of any
kind, arising from (a) failure of Lessee to perform any covenant required to be
performed by Lessee hereunder; (b) any accident, injury or damage which shall
happen in or about the leased premises, or resulting from the condition,
maintenance or operation of the leased premises; (c) failure to comply with any
requirements of any governmental authority; (d) any construction lien or
security agreement filed against the leased premises or any equipment or
material therein; and (e) any act or negligence of Lessee, or its agents,
contractors, employees or licensees.
Except for claims arising out of acts caused by the affirmative
negligence of Lessee or its representatives, Lessor shall indemnify and defend
Lessee and the leased property, at Lessor's expense, against all claims,
expenses and liabilities, including but not limited to reasonable attorneys'
fees incurred in successfully pursuing any of Lessee's legal remedies hereunder
or in defending itself in legal proceedings of any kind, arising from (a)
failure of Lessor to perform any covenant required to be performed by Lessor
hereunder; (b) any accident, injury or damage which shall happen in or about the
leased premises, or resulting from the condition, maintenance or operation of
the leased premises; (c) failure to comply with any requirements of any
governmental authority; (d) any construction lien or security agreement filed
against the leased premises or any equipment or material therein; and (e) any
act or negligence of Lessor, or its agents, contractors, employees or licensees.
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31. EXPLANATORY PROVISIONS: The provisions of this lease shall be
binding upon, inure to the benefit of and apply to the respective heirs,
executors, administrators, successors and assigns of the parties hereto. The
masculine pronoun, wherever used, shall include the feminine and neuter, and the
singular shall include the plural. Headings are given to the paragraphs of this
lease solely as a convenience to facilitate reference and shall not be deemed
material or relevant to the construction of the lease or any provision thereof.
32. ADDITIONAL PROVISIONS:
See Addendum No. 1, attached hereto, and incorporated herein.
IN WITNESS WHEREOF, the parties hereto have executed this lease on the dates set
forth below.
LESSOR
LPR PARTNERSHIP
________________________________________ By:________________________________
Witness Xxxxxx X. Xxxxxxxx, Managing
Partner
Date:______________
LESSEE
TECHNICAL PRODUCTS GROUP, INC.
By: LINCOLN COMPOSITES DIVISION
________________________________________ By:________________________________
Witness Xxxxx X. Xxxxxx, President
Date:______________
APPROVED:
________________________________________ By:_______________________________
Witness Xxxxxx Xxxx
Date:___________________
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ADDENDUM NO. 1 TO LEASE
THIS ADDENDUM NO. 1 TO LEASE, dated October 15, 1997 for reference purposes,
forms a part of that certain Lease of same date, made and entered by and between
LPR PARTNERSHIP, a Nebraska general partnership, hereinafter called "Lessor",
and TECHNICAL PRODUCTS GROUP, INC., a Delaware corporation qualified to do
business in Nebraska, by and through its division, LINCOLN COMPOSITES,
hereinafter called "Lessee". All defined terms in the Lease shall have the same
meanings in this Addendum. Except as modified by this Addendum, all terms and
conditions of the Lease shall remain the same. The Lease is hereby amended as
follows.
1. OPTIONS TO ENLARGE THE PREMISES:
1.1 OPTIONS. Lessee shall have the following mutually exclusive
options, providing they are timely exercised:
A. RIGHT OF FIRST REFUSAL. For so long as Lessee continues
to lease the initial premises, Lessee shall have the right
of first refusal to lease the balance of the Building,
shown as the cross-hatched portions of Exhibit "A" and
comprising a total of 17,604 sq. ft., exercisable for a
period of 48 hours following Lessor's presentation to
Lessee of a bona fide third party offer to Lease the
balance of the Building or portion thereof, on the same
terms and conditions as such third party offer. This right
shall apply to terms beginning on or after March 1, 1998.
B. BUILDING LEASE. Lessee may lease the entire balance,
comprising 17,604 sq. ft., of the Building, for a total of
45,000 sq. ft., for a term commencing April 1, 1998, and
expiring December 31, 1998 unless Lessee has provided
Lessor written notice, on or before November 1, 1998, of
Lessee's renewal of the term for an additional six months
through June 30, 1999. Except with respect to
environmental conditions that may exist on the premises,
including but not limited to, soil and groundwater
contamination, Lessee shall accept the premises "AS IS",
with no duty on the part of the Lessor to make
modifications. With 90 days prior written notice to
Lessor, Lessee may convert this "Building Lease" to a
long-term manufacturing lease, as described in C, below.
C. MANUFACTURING LEASE. Lessee may convert the Lease to a
long-term manufacturing lease of the entire 45,000 sq. ft.
Building, for a term of five years from the effective date
of the converted lease following exercise of this option.
Lessor shall agree to make modifications (as specified by
Lessee and approved by Lessor) at a cost not to exceed
$200,000, which shall be completed by the beginning of the
term. The cost of modifications shall be payable as set
forth in Section 3, below. The beginning of the term shall
be April 1, 1998, unless Lessee is converting this Lease
from a Building Lease, as described in B above. in which
event, the commencement of the term shall be 90 days from
the date Lessor has received notice of such conversion. If
Lessee exercises this option, Lessee may, at its
discretion request Lessor to perform a Phase I and/or
Phase II environmental site assessment of the leased
premises. Upon such request, Lessor shall engage a
mutually agreeable third-party consulting firm, Lessee's
approval of such consulting firm not to be unreasonable
withheld, to conduct the Phase I and/or Phase II
environmental site assessments. The consulting firm shall
perform all investigations of the premises in compliance
with applicable federal, state or local laws.
1.2 EXERCISE DEADLINE. If exercised by notice received by Lessor
ON OR BEFORE JANUARY 15, 1998, Lessee shall have the absolute
right to elect any of the three options set forth in 1.1 above.
Thereafter, Lessee shall have the rights set forth in 1.1 above
only in the sole option and discretion of the Lessor.
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1.3 COVENANT OF FURTHER ASSURANCES. In the event any of the
Section 1.1 options are exercised, the parties agree to take such
further actions and sign such further documents as are necessary
and appropriate in order to effectuate the changes.
2. TERM.
2.1 OPTION TO EXTEND TERM. Lessee shall have the option to extend
the term of the Lease for an additional five year term beyond
expiration of the converted term contemplated by Section 1.1 C.,
above, exercisable by written notice to Lessor at least one
hundred twenty (120) days prior to the expiration of the existing
term. Such extension shall be on all the terms and conditions as
are contained in the Lease, and on the further condition that the
premises shall comprise the entire Building for the extension
term. The rents payable for such extension term shall be at those
rates set forth in Section 4 of the Lease, for the applicable
time periods.
2.2 LIMITATION ON LESSOR'S RIGHT TO REQUIRE LESSEE TO MOVE.
Lessor may not require Lessee to move, as contemplated in Section
2 (ii) of the Lease, prior to January 1, 1999.
3. LONG TERM LEASE MODIFICATIONS TO BUILDING. In the event Lessee
exercises its option to convert the Lease to a long-tem manufacturing Lease as
described in 1.1 C, above, Lessor agrees to make modifications to the Building
at a cost not to exceed $200,000. The modifications shall be in the nature of
new electrical, new air conditioning, additional lighting, and the like, shall
be to Lessee's specifications, and shall comply with all applicable laws,
regulations, and building codes. Lessee acknowledges that Lessor will, if
requested by Lessee, finance such modifications with a commercial lending
institution (probably Havelock Bank) ("Lender") under commercially reasonable
terms. Lessor shall arrange, on behalf of Lessee, to borrow funds to cover the
modifications, in exchange for Lessee's agreement, as set forth herein, to
provide for Lessee's repayment to Lessor of the borrowed funds and to provide
for Lessee's guarantee of the Note evidencing such loan ("Note"). The Note shall
be nonrecourse against the Lessor, and shall be repayable by Lessor to Lender
over the term of the Lease. Although Lessee has agreed to guarantee the Note,
this Addendum is for the purpose of clarifying the intent of the parties that
the Note be repaid by Lessee paying additional rent in amounts equivalent to the
Note payments, and Lessor applying such additional rent payments to Note
payments.
3.1 ADDITIONAL RENT. Lessee hereby agrees to pay to Lessor, as
additional rent, the entire sum represented by the Note described
above, together with interest thereon. Such sum shall be payable
in equal monthly installments sufficient to amortize the entire
Note over the remaining term of the Lease, each month at the same
time as base rent, during the term of the Lease, commencing the
same date as conversion to a manufacturing lease, as described in
Section 1.1 C above. The monody payments shall be at a level
amount, identical to the monthly payments under the Note,
determined in accordance with the interest rate adjustments
described in the Note.
3.2. LESSOR TO PAY NOTE. Lessor hereby agrees that it shall, upon
receipt from Lessee of the installments of the Additional Rent
amount described in paragraph 3.1 above, pay the Note in
accordance with its terms.
3.3. ACCELERATION. Notwithstanding anything in the Lease to the
contrary, in the event: (i) of early termination of the Lease
prior to the expiration of the initial term contemplated by the
Note, (ii) Lessee vacates the premises, (iii) Lessee assigns the
Lease or subleases the premises, or (iv) of Lessee's default
under the Lease, then Lessor may, at its option, declare the
entire unpaid balance of Additional Rent described above, to be
due and payable immediately.
4. MODIFICATIONS TO PREMISES.
4.1 MODIFICATIONS BY LESSEE. Lessee may, at Lessee's expense,
make such further modifications to the premises as are approved
in advance by Lessor. In seeking such approval, which shall not
be unreasonably withheld, Lessee shall provide Lessor with copies
of all plans and specifications for such modifications.
4.2 OVERHEAD DOORS. Lessee may, at Lessee's expense, modify (to
enlarge) the overhead doors on the west side of the Building, as
shown on Exhibit "A".
2
4.3 Locks separating north from south portions of the Building.
The Building is presently used by a single user. Lessor will, at
Lessor's expense, provide locks to separate appropriately the
premises from the northern portion of the Building, which is
presently leased to Acton, Ltd. through February, 1998.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum No. 1 to
Lease on the dates set forth below.
LESSOR
LPR PARTNERSHIP
________________________________________ By:________________________________
Witness Xxxxxx X. Xxxxxxxx, Managing
Partner
Date:_____________________
LESSEE
TECHNICAL PRODUCTS GROUP, INC.
By: LINCOLN COMPOSITES DIVISION
________________________________________ By:_______________________________
Witness Xxxxx X. Xxxxxx, President
Date:____________________________
3
