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Exhibit 10.4
LEASE AGREEMENT
BETWEEN
UCAR CARBON COMPANY INC.
"LANDLORD"
AND
UCAR GRAPH-TECH INC.
"TENANT"
January 1, 2000
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TABLE OF CONTENTS
Page No.
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Lease Agreement 3
Article 1 Leased Premises 4
Article 2 Term of Lease 4
Article 3 Rent and Additional Rent 5
Article 4 Use 6
Article 5 Repairs and Maintenance 6
Article 6 Alterations 7
Article 7 Utilities, Services and Taxes 7
Article 8 Termination of Lease 9
Article 9 Signs and Property Loss 10
Article 10 Inspection by Landlord 10
Article 11 Assignment and Sub-Letting 11
Article 12 Indemnification and Insurance 11
Article 13 Default 13
Article 14 Fire and Casualty 15
Article 15 Condemnation 16
Article 16 Relationship of Parties 17
Article 17 Notices 17
Article 18 Covenant Against Liens; Subordination 18
Article 19 Condition of Premises 18
Article 20 Tenant's Certificate 18
Article 21 Force Majeure 20
Article 22 Quiet Enjoyment 21
Article 23 Waiver 21
Article 24 Memorandum of Lease 21
Article 25 Brokerage Fees 21
Article 26 Governing Law 21
Article 27 Holdover Tenancy 22
Article 28 Successor Landlord 22
Article 29 Entire Agreement 23
Article 30 Notice of Additional Space 23
Article 31 Waiver of Lien 23
Article 32 Definition of Certain Terms 23
Article 33 Satellite Dish 23
Article 34 FASB 13 24
Article 35 Disputes 24
Exhibit "A" Premises 26
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LEASE AGREEMENT
THIS AGREEMENT, made as of the 1st day of January, 2000, between UCAR
CARBON COMPANY INC., a Delaware corporation having offices at 0000 Xxxx Xxx
Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxxx, 00000 (hereinafter called "Landlord"),
and UCAR Graph-Tech Inc., a Delaware corporation having offices at 00000 Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxxx, 00000 (hereinafter called "Tenant"),
WITNESSETH
WHEREAS, Landlord owns certain land, together with the buildings and
improvements located thereon, situated at West 000xx Xxxxxx xxx Xxxxxxx Xxxxxx,
Xxxx xx Xxxxxxxx, Xxxxxx of Cuyahoga and State of Ohio (hereinafter called the
"Plant Site"); and
WHEREAS, part of the Plant Site comprising approximately 207,000 square
feet as more particularly described and shown in Exhibit A attached hereto
(hereinafter called the "Premises") is used in conjunction with Tenant's
natural, acid-treated and flexible graphite business; and
WHEREAS, Tenant wishes to lease the Premises in order to produce,
manufacture, store, transport and distribute natural, acid treated and flexible
graphite and related products;
NOW, THEREFORE, in consideration of the rents reserved hereunder and
the mutual undertakings hereinafter set forth, Landlord and Tenant hereby
covenant and agree as follows:
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ARTICLE 1 - LEASED PREMISES
1.1 Landlord hereby leases to Tenant and Tenant hereby takes and
hires from Landlord, upon and subject to the terms, covenants,
conditions and provisions of this Agreement, for the Initial
Term (as defined below), the Premises, together with: (i)
access to the Premises by Tenant's employees, agents,
contractors and invitees through the use of access roads,
parking areas, common hallways, loading docks and other
designated areas of the Plant Site adjoining the Premises;
(ii) use of the conference rooms, restrooms, lunchrooms and
locker rooms located upon the Plant Site by Tenant's
employees, agents, contractors and invitees; and (iii)
exclusive parking rights for up to 200 personal vehicles in
the various parking areas at the Plant Site.
1.2 Landlord shall have reasonable access and other rights as
necessary or appropriate to install and maintain utility and
other systems serving the Plant Site, whether now existing or
hereafter installed upon the Premises, including without
limitation the right to inspect, maintain, repair, replace,
change the size of and remove the systems so long as it does
not unreasonably interrupt Tenant's use of the Premises.
ARTICLE 2 - TERM OF LEASE
2.1 Unless sooner terminated as provided herein, the initial term
of this Agreement shall commence on January 1, 2000 and shall
expire on December 31, 2009 (the "Initial Term"). Tenant shall
have the exclusive option to extend the term of this Agreement
for one additional period of five (5) years (the extension
period commencing January 1, 2010 and expiring December 31,
2014; referred to as the "Extended Term"), provided that
Tenant delivers to Landlord, at least 24 months in advance of
the last day of the Initial Term, written notice of its
intention to so extend the term. Any such extension shall be
upon the same terms and conditions as set forth herein, except
as to the Rent payable for the Extended Term. References to
the "term hereof" or the "term of this Agreement" shall mean
the Initial Term and the Extended Term, together. Upon
exercise of any such option, Landlord shall be obligated to
lease to Tenant, and Tenant shall be obligated to take and
hire from Landlord upon and subject to the terms, covenants,
conditions and provisions of this Agreement, for such Extended
Term, the Premises, together with the access, use and rights
mentioned in Article 1.
2.2 Landlord may revoke the Tenant's option to extend the term of
the Agreement upon providing Tenant with written notice at
least thirty-six (36) months prior to the end of the Initial
Term. Should Tenant be unable, after using reasonable efforts,
to vacate the Premises within that time
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period, Tenant may extend the Agreement on a month to month
basis for a maximum of six (6) months. In that case, the Rent
shall be calculated pursuant to Article 27, Holdover Tenancy.
ARTICLE 3 - RENT AND ADDITIONAL RENT
3.1 During the first five (5) years of the Initial Term, Tenant
shall pay to Landlord Rent equal to $213,210.00 per year
payable at the rate of $53,302.50 per quarter.
For the remainder of the Initial Term (5 years) and for the
Extended Term, the Rent shall equal the fair market rent of
the Premises as of the commencement of the second five (5)
years of the Initial Term and the Extended Term as mutually
agreed by the parties at least 6 months before each such
commencement or, if the parties are unable to so agree,
determined as follows: within 20 days after the beginning of
such 6 month period, each party shall employ, at its expense,
a qualified MAI real estate appraiser to determine the fair
market rent of the Premises for the second five (5) years of
the Initial Term or the Extended Term and require such
appraiser to make such determination within 30 days
thereafter. If the appraisers' fair market rents vary by less
than 10% of the higher rent, the average of the two rents
shall become the Rent for the second five (5) years of the
Initial Term or the Extended Term, as applicable. If the rents
vary by greater than 10%, the parties shall appoint a third
appraiser to determine the fair market rent and the two
closest appraised rents shall be averaged to determine the
Rent for the second five (5) years of the Initial Term or the
Extended Term. The costs of such third appraiser shall be
borne equally by the parties.
The Rent, payable in advance for each quarter, shall become
due and payable, without notice or demand, on the first day of
each calendar quarter during the term hereof, without any
setoff, counterclaim or deduction for any reason whatsoever.
3.2 During the term hereof, Tenant shall pay to Landlord as
Additional Rent, within thirty (30) days after receipt of an
invoice, the charges for a pro-rata share of insurance
premiums as set out in Article 12 and taxes and assessments as
defined in Article 7.
3.3 The Rent and Additional Rent shall be apportioned and adjusted
on a per diem basis for any monthly period at the commencement
or termination of this Agreement and shall be payable as of
such dates.
ARTICLE 4 - USE
4.1 Tenant may use and occupy the Premises for the production,
storage, transportation, sale and distribution of carbon
and/or natural graphite
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based and related products, as well as, fuel cell, automotive,
thermal management, heat management, fire protection,
electrical and fluid sealing products and for any other lawful
purpose incidental thereto, but for no other purpose unless
approved in writing by Landlord.
4.2 In its occupation and use of the Premises, Tenant shall comply
fully with all applicable regulatory, governmental and court
orders and all applicable local, State and Federal laws,
ordinances, rules and regulations. Tenant shall not by reason
of its use of the Premises at any time throughout the term of
this Agreement violate or cause to be violated any such laws,
ordinances, orders, rules or regulations or the reasonable
rules and regulations of the carriers insuring the Premises,
or the Board of Fire Underwriters or its equivalent, and such
compliance and observation shall be at Tenant's sole cost and
expense.
4.3 Landlord shall have the right to impose restrictions and
obligations on Tenant's use and maintenance of the Premises
which are no more restrictive than those imposed on other
tenants within the Plant Site.
4.4 Tenant shall indemnify and hold harmless Landlord from any
claim, damage, loss, liability and obligation due to any
violation of this Article 4.
4.5 Tenant shall not, without Landlord's written consent, produce,
generate, emit, treat, recycle, store, bury or dispose of any
hazardous or toxic materials, substances or wastes upon the
Premises other than the production, generation, emission and
storage of those of types and in amounts normally generated in
the Tenant's business over the 3-year period prior to the date
hereof. If such laws, rules, orders, ordinances or regulations
reduce the amount of waste which may be accumulated at the
initial point of generation, then Tenant shall comply
therewith.
4.6 In its occupation and use of the Premises, Tenant shall comply
at a minimum with all health, safety or operating conditions,
restrictions, obligations and standards imposed by such laws,
rules, orders and ordinances or regulations with respect to
the various areas and buildings comprising the Plant in order
to facilitate the safe occupation and use of the Plant.
4.7 There shall be no obligation to occupy or operate within the
Premises at any time.
ARTICLE 5 - REPAIRS AND MAINTENANCE
5.1 Tenant shall, at its sole cost and expense, keep and maintain
the Premises in a clean and orderly condition and perform all
necessary or required maintenance, repairs and replacements.
Tenant shall not cause or permit
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any waste, damage or disfigurement to the Premises (other than
reasonable wear and tear) or any overloading of the floors of
the Premises.
5.2 Landlord shall, at its sole cost and expense (or require its
other tenants within the Plant Site to), keep and maintain the
Plant Site, excluding the Premises, in a clean and orderly
condition and perform all necessary or required maintenance,
repairs and replacements. Landlord shall (or shall require
such other tenants to) not cause or permit any waste, damage
or disfigurement to the Plant Site, excluding the Premises,
other than for reasonable wear and tear.
ARTICLE 6 - ALTERATIONS; IMPROVEMENTS; TAXES
6.1 The Tenant shall not make any structural alterations or
additions to the Premises without the written consent of the
Landlord, which consent shall not be unreasonable withheld or
delayed. Landlord's consent shall not be required for (a)
minor changes not exceeding $100,000 in total cost and which
will not reduce the value of the building, affect its basic
design, or impair its structural strength and integrity, or
(b) addition of fixtures and equipment which do not damage the
Premises.
6.2 Any alterations or improvements made under this Article 6
shall be made at the Tenant's sole cost and expense and Tenant
shall be entitled to any and all salvage. Landlord shall
cooperate with Tenant in any governmental applications or
otherwise in making said alterations and improvements,
provided, however, such cooperation shall be without cost or
expense to Landlord.
6.3 Tenant shall be entitled to any investment tax credit and any
depreciation on any equipment or other property placed by
Tenant in the Premises, on any alterations or improvements to
the Premises made by Tenant or on any additions or
replacements to the Premises made by Tenant. Landlord agrees
to execute any and all documents necessary to pass through to
Tenant the investment tax credit involved.
ARTICLE 7 - UTILITIES, SERVICES AND TAXES
7.1 Subject to and except as otherwise provided in this Article:
(a) Landlord shall maintain the Tenant's access to all
utilities and systems necessary for the Tenant's use
of the Premises, including, but not limited to,
necessary power, gas, water and sewer lines. Tenant
shall provide and pay for all utilities used in or in
connection with the Premises during the term of this
Agreement.
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(b) Landlord shall not be liable to Tenant for any claim,
damage, loss, obligation or liability due to (i)
Landlord's inability or failure to maintain Tenant's
access to the utilities or systems on account of any
force majeure occurrence, (ii) any failure of
Tenant's utility suppliers to provide adequate and
reliable service which affects Landlord's ability to
maintain access to the utility lines, (iii) any
failure, to maintain, improper maintenance,
interruption or curtailment of any of the utilities
or systems due to equipment, labor or other problems
which do not arise out of the gross negligence or
willful misconduct of Landlord or its employees,
agents or contractors. In no event shall Landlord be
liable to Tenant for any special, incidental or
consequential damages due to any failure to maintain,
improper maintenance, interruption or curtailment of
any of the utility lines.
7.2 Tenant shall reimburse Landlord, as they become due, for: (i)
Tenant's proportionate share of ad valorem taxes and
assessments levied, assessed or imposed upon the Premises and
apportioned to the term hereof; and (ii) any taxes, excises or
other governmental impositions payable by Landlord (other than
those as measured by net income) which arise due to any
payments of Rent, Additional Rent or other amounts made
hereunder.
7.3 Tenant's proportionate share of ad valorem taxes and
assessments applicable to the Premises which shall be payable
pursuant to this Article shall be determined based upon the
ratio which the valuation of the Premises for tax purposes
represents to the total valuation of the Plant Site for tax
purposes. Representatives of Landlord and Tenant shall meet
annually to review this matter.
7.4 Landlord shall pay when due all ad valorem taxes and
assessments levied, assessed or imposed upon the Premises
during the term hereof. If at any time Landlord defaults in
the payment of any ad valorem taxes and assessments due upon
the Premises, including any taxes and assessments due upon
adjoining property comprising part of the same tax parcel,
then, upon ten (10) day's prior written notice to Landlord,
Tenant shall have the right to pay the same and deduct such
payment from its quarterly Rent.
7.5 Tenant shall pay and discharge when due all personal property
taxes applicable to its property located upon the Premises and
all income, business, Social Security and other taxes, levies,
impositions and contributions required by any Federal, State
or local authority applicable to Tenant's business conducted
upon the Premises. Tenant shall indemnify and hold harmless
Landlord from any claim, loss, damage, obligation or liability
for such taxes, levies, impositions and contributions.
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7.6 If at any time during the term of this Agreement, (i) a tax,
excise or other imposition is levied, assessed or imposed upon
or measured by the Rent, Additional Rent or other charges
payable by Tenant hereunder, other than a tax, excise or
imposition as measured by net income, or (ii) a capital levy
or other imposition is made based on the value of the Premises
or Tenant's property within the Premises, or (iii) some other
form of assessment based in whole or in part on some other
valuation of the property then comprising the Premises is
imposed, then, and in any such event, Tenant shall reimburse
Landlord for any such tax, excise, levy or imposition paid by
it.
7.7 All payments required to be made by Tenant to Landlord under
this Article 7 shall be payable as Additional Rent within ten
(10) days after written demand therefor and shall be payable
even though the term hereof has expired, provided that they
are applicable to any tax period falling within the term
hereof.
ARTICLE 8 - TERMINATION OF LEASE
8.1 At the expiration or earlier termination of the term hereof,
Tenant shall promptly vacate and yield up the Premises, broom
clean and in the same condition or order and repair in which
they are required to be kept throughout the term hereof,
reasonable wear and tear excepted.
8.2 Upon the expiration or earlier termination of the term of this
Agreement, Tenant shall have the right to remove all of
Tenant's property which has been affixed, attached or
otherwise made part of this Premises (and all salvage as
provided in Article 6.2); provided, however, that in
performing such work Tenant shall not impair the structural
integrity or the utility or other systems of the buildings
comprising the Plant Site and that in each instance Tenant
repairs any damages to the Premises due to the installation or
removal of such property. Any fixtures, equipment or other
property of Tenant remaining upon the Premises at such
expiration or termination shall be deemed abandoned and may be
removed or otherwise disposed of by Landlord without any
notice, liability or obligation to Tenant, but Tenant shall
remain liable to reimburse Landlord for the cost of performing
any such removal or disposition.
8.3 Anything to the contrary contained herein notwithstanding,
upon such expiration or termination, Tenant shall remain
liable at its sole expense: (i) to make any repairs to the
Premises as required in Article 5, (ii) to remove and dispose
of properly any garbage, waste or other debris, (iii) to
remove and dispose of any other property abandoned upon the
Premises, and (iv) to eliminate any nuisances or hazardous
conditions arising solely from Tenant's use or occupation of
the Premises. In the event Tenant does not
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promptly do so as requested by Landlord, Tenant shall be
liable to reimburse Landlord the cost of so doing.
ARTICLE 9 - SIGNS AND PROPERTY LOSS
9.1 Tenant may, subject to the prior written consent of Landlord,
which consent shall not be unreasonable withheld or delayed,
cause the installation, at Tenant's cost and expense, of such
signs as it may require to identify Tenant's occupancy of the
Premises. Tenant shall be responsible to repair any damage to
the Premises caused by such installation, and Tenant shall
remove such signs at the expiration or termination of the term
hereof and repair any damage caused by such removal. Tenant
shall fully comply with all requirements of applicable laws,
rules, regulations, orders and ordinances pertaining to
installation and use of such signs. Tenant may, in compliance
therewith, install directional signs in the parking areas, or
at or near the street, directing traffic from the street to
the parking or loading areas of the Premises.
9.2 Tenant shall be solely liable for the security of any of its
property located upon the Premises. In no event shall Landlord
be liable for any loss, theft, or destruction of any property
located upon the Premises or any bodily injury, death,
sickness or disease of any employees, agents, contractors or
invitees of Tenant from any cause whatsoever other than as the
result of the gross negligence or willful misconduct of
Landlord, including, without limitation, the leakage or escape
of any steam, electricity, gas, water, sewage, compressed air
or other utility service, the existence of any ice or snow
upon any sidewalks, driveways or parking areas adjoining the
Premises, the state of repair of the Plant Site or the
Premises or any latent defect therein; and Tenant shall
indemnify and hold harmless Landlord from all claims, damages,
losses, obligations and liabilities on account of such matters
with the exception of those resulting from the gross
negligence or willful misconduct of Landlord.
ARTICLE 10 - INSPECTION BY LANDLORD
10.1 At reasonable times during normal business hours and at any
time in the event of emergency, Tenant shall upon reasonable
notice permit Landlord and the agents and contractors of
Landlord to enter the Premises for the purpose (i) inspecting
the same and (ii) during the final year of the term hereof
showing the Premises to any prospective tenants or purchasers.
10.2 Landlord reserves the right at any time to enter upon the
Premises and to make any necessary repairs thereto, including
without limitation any repairs to steam or utility lines, to
maintain a fire watch for insurance purposes or to take any
other actions as may be necessary or appropriate to eliminate
any nuisances or any dangerous, harmful or unhealthful
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condition existing thereon. The reservation of such rights
shall not be deemed to be an acknowledgement of or imply any
duty or obligation on the part of Landlord to perform any such
actions, except where the obligation to do so is otherwise
specifically set forth herein. Tenant shall be solely liable
for the condition and upkeep of the Premises.
ARTICLE 11 - ASSIGNMENT AND SUBLETTING BY TENANT
11.1 Tenant may sublet the Premises or any portion thereof, license
or enter into concession agreements covering departments
therein or assign this Agreement (any such sublet, license,
agreement or assignment being called an assignment, with
corrective words to have corresponding meanings), provided
that:
(a) No such assignment nor the acceptance of rent by
the Landlord from such assignee shall relieve,
release or in any manner affect the liability of
Tenant;
(b) Any such assignee shall, in writing, assume and
agree to keep, observe and perform all of the
agreements, conditions, covenants and terms of this
Agreement on the part of the Tenant to be kept,
observed and performed and shall be, and become
jointly and severally liable with the Tenant for, the
non-performance thereof accruing from the date of
such assignment;
(c) No further or additional assignment of this
Agreement shall be made except upon compliance with
and subject to the provisions of this Article; and
(d) Any such assignment shall be subject to all the
other terms, conditions and covenants of this
Agreement.
ARTICLE 12 - INDEMNIFICATION AND INSURANCE
12.1 Tenant hereby releases Landlord from, and shall indemnify
Landlord and hold Landlord harmless from, all claims, damages,
losses, obligations and liabilities, including reasonable
attorneys' fees, on account of any bodily injury, sickness,
disease, death, property damage, contamination, pollution or
environmental damage or condition arising out of possession,
operation or use of the Plant Site, the Premises, the
adjoining streets, alleys, parking areas, passageways and
loading docks by Tenant, its employees, agents, contractors,
customers or invitees, except where caused by the willful
misconduct or gross negligence of Landlord, its employees,
agents, contractors or invitees or other tenants.
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12.2 Landlord hereby releases Tenant from, and shall indemnify
Tenant and hold Tenant harmless from, all claims, damages,
losses, obligations and liabilities, including reasonable
attorneys' fees, on account of any bodily injury, sickness,
disease, death, property damage, contamination, pollution or
environmental damage or condition arising out of Landlord's
ownership, possession, operation or use of the Plant Site, the
Premises, the adjoining streets, alleys, parking areas,
passageways and loading docks by Landlord or its other
tenants, and their employees, agents, contractors, customers
or invitees, except where caused by the willful misconduct or
gross negligence of Tenant, its employees, agents, contractors
or invitees or other tenants.
12.3 Tenant shall be responsible, at its sole cost and expense, for
obtaining and maintaining insurance coverage for any of
Tenant's personal property or fixtures maintained upon the
Premises, other than coverage for claims, damages, losses or
liabilities arising as a result of the gross negligence or
willful misconduct of Landlord. Tenant hereby releases
Landlord from, and shall indemnify Landlord for and hold
Landlord harmless from, any claim, damage, loss, obligation or
liability arising as a result of damage or destruction to such
property or fixtures in the event of a fire or other
occurrence or due to any other condition now existing or
hereafter arising upon the Premises other than any such claim,
damage, loss, obligation or liability arising as a result of
the gross negligence or willful misconduct of Landlord. Tenant
shall obtain from its insurance carriers a waiver of the right
of subrogation against Landlord for any loss or damage by fire
or any other cause within the scope of its fire and extended
coverage insurance policies.
12.4 At its sole cost and expense, Tenant shall maintain and keep
in effect throughout the term of this Agreement insurance
against claims for bodily injury (including sickness, disease
and death) and property damage occurring upon, in or about the
Premises under policies of general liability insurance,
including broad form contractual liability and automobile
insurance, with limits of not less than one million dollars
($1,000,000) per occurrence for one (1) person, five million
dollars ($5,000,000) per occurrence for two (2) or more
persons, and one million ($1,000,000) for property damage. The
aforesaid minimum insurance limits shall in no way limit or
diminish Tenant's liability to Landlord pursuant to Article
12.1
12.5 At its sole cost and expense, Tenant shall maintain and keep
in effect during the term hereof worker's compensation and
employer's liability insurance in the minimum amounts as
required by law.
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12.6 Upon the execution hereof, Tenant shall furnish to Landlord
certificates of insurance as evidence of the insurance
coverage required under Articles 12.3, 12.4 and 12.5, and each
such policy of insurance shall name Landlord as an additional
insured and provide that it shall not be amended, modified or
cancelled, except upon thirty (30) days' prior written notice
to Landlord.
12.7 At its sole cost and expense, Landlord shall maintain and keep
in effect throughout the term of this Agreement insurance
against claims for bodily injury (including sickness, disease
and death) and property damage occurring upon, in or about the
Plant Site (excluding the Premises) under policies of general
liability insurance, including broad form contractual
liability and automobile insurance, with limits of not less
than one million dollars ($1,000,000) per occurrence for one
(1) person, five million dollars ($5,000,000) per occurrence
for two (2) or more persons, and one million ($1,000,000) for
property damage. The aforesaid minimum insurance limits shall
in no way limit or diminish Landlord's liability to Tenant
pursuant to Article 12.2
12.8 To the extent that the insurance described in Articles 12.4
and 12.7 are provided by a policy or policies obtained by
Landlord, Landlord may charge Tenant with a pro-rata share of
the premiums for insurance required in Sections 12. The
pro-rata share shall be based on Tenant's leased space within
the Premises divided by the total space within the entire
Plant Site.
12.9 In no event shall either party be liable to the other party
for any special, indirect, incidental or consequential damages
on account of any default by a party under this Agreement or
any claims, damages or losses of a party arising out of its
ownership, possession, occupation or use of the Plant Site and
the Premises.
ARTICLE 13 - DEFAULT
13.1 Each of the following shall be deemed a default by Tenant and
a breach of this Agreement:
(a) the filing with respect to Tenant of a petition for
adjudication as a bankrupt, or for reorganization or
a similar arrangement, under any Federal or State
statute;
(b) the dissolution or liquidation of Tenant, without the
transfer to and assumption by a financially
responsible third-party of this Agreement as
determined by Landlord;
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(c) the appointment of a permanent or temporary receiver
or a permanent or temporary trustee of all or
substantially all the property of Tenant;
(d) the taking of possession of the property of Tenant by
a governmental officer or agency pursuant to
statutory authority for dissolution, rehabilitation,
reorganization or liquidation;
(e) the making by Tenant of an assignment for the benefit
of creditors;
(f) default in the payment of Rent or Additional Rent
herein reserved or any part thereof for a period of
thirty (30) days; or
(g) default in the performance of any other covenant,
term or condition of this Agreement on the part of
Tenant to be performed for a period of thirty (30)
days after written notice from Landlord specifying
the nature of such default (and, for purposes of this
subdivision (g), no default on the part of Tenant in
such performance shall be deemed to exist if after
receipt of the aforesaid notice Tenant diligently
takes action to rectify the same and prosecutes such
action to completion with reasonable diligence,
subject, however, to unavoidable delays).
13.3 If any event mentioned in Article 13.1(a) through 13.1(e)
shall occur, Landlord may thereupon or at any time thereafter
elect to cancel this Agreement upon thirty (30) days' prior
written notice to Tenant and this Agreement shall terminate on
the day in such notice specified with the same force and
effect as if that date were the date herein fixed for the
expiration of the term of this Agreement. In case of any such
default under Article 13.1(f) or 13.1(g) and at any time
thereafter following the expiration of the respective grace
periods above-mentioned, Landlord may serve a notice upon the
Tenant electing to terminate this Agreement upon a specified
date not less than ten (10) days after the date of serving
such notice and this Agreement shall expire on the date so
specified as if that date had been originally fixed as the
expiration date of the term hereof and all Rent and Additional
Rent applicable to the balance of the term hereof shall
thereupon become due and payable. However, a default under
Article 13.1(f) or (g) shall be deemed waived if such default
is cured before the date specified for termination in the
notice of termination served on Tenant pursuant to this
Article.
13.4 In the event this Agreement shall be terminated pursuant to
this Article or by summary proceedings or otherwise, Landlord
shall use reasonable efforts to mitigate its damages and
Landlord may, in its own name and in its own behalf, relet the
whole or any portion of the Premises, for any period equal to
or greater or less than the remainder of the term hereof for
any sum which it may deem reasonable, to any tenant which it
may find suitable and satisfactory, and for any use and
purpose which it may deem appropriate, and in connection with
any such reletting Landlord may make such changes in the
character of the improvements on the Premises as
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Landlord may determine to be appropriate or helpful in
effecting such reletting. However, in no event shall Landlord
be under any obligation to pay or credit Tenant with any
surplus of any sums received by Landlord on a reletting of the
Premises in excess of the Rent reserved in this Agreement.
13.5 All remedies specified in this Article 13 shall be
non-exclusive and Landlord's reliance upon such remedies shall
not preclude it from availing itself of any other rights or
remedies, which it may have at law or in equity.
ARTICLE 14 - FIRE AND CASUALTY
14.1 In the event of any damage to or destruction of the Premises
by fire or other occurrence so that twenty percent (20%) or
more of the building floor area comprising the Premises
becomes untenable or unfit for occupancy, then within thirty
(30) days after the date of such occurrence, either Landlord
or Tenant shall have the right to elect by written notice to
the other to cancel this Agreement as of the date of such
damage or destruction, in which event the Rent and Additional
Rent shall be apportioned to such date. If neither party duly
elects to cancel this Agreement pursuant to the immediately
preceding sentence, then Landlord shall repair and restore the
Premises to substantially their same condition prior to such
occurrence using reasonable speed and dispatch and the Rent
and Additional Rent shall be equitably abated as set forth in
the following Article from the date of such occurrence until
the date when repairs are completed.
14.2 In the event of any fire or other occurrence which damages or
destroys less than twenty (20%) of the building floor area
comprising the Premises, Landlord shall repair and restore the
Premises with reasonable speed and dispatch, and the rent and
additional rent shall be equitably abated in the same
proportion that the area of the Premises which shall be
untenable or unfit for occupancy by Tenant in the conduct of
its business represents to the total area of the Premises,
from the date of such destruction until the completion of such
repairs.
14.3 In the event that a fire or other occurrence as provided in
Article 14.2 happens during the final 180 days of the term
hereof, Landlord shall not be obligated to repair and restore
the Premises, and this Agreement shall remain in full force
and effect, subject to an equitable abatement of Rent, and
Additional Rent, until the expiration of the term hereof.
14.4 In no event shall Landlord have any liability or obligation to
Tenant with respect to the repair or restoration of any
property of Tenant located upon
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the Premises due to any fire or other occurrence. In the event
this Agreement is cancelled pursuant to Article 14.1, then
Tenant shall remain obligated promptly to remove or eliminate
any nuisance or dangerous, harmful or unhealthful condition
then existing on or about the Premises due to its use or
occupancy thereof.
ARTICLE 15 - CONDEMNATION
15.1 If, due to any condemnation or taking by any public or
quasi-public authority or other party having the right of
eminent domain, (i) twenty percent (20%) or more of the
building floor area comprising the Premises is taken or (ii)
access to the Premises is permanently denied, then and in any
of the aforesaid events the term of this Agreement shall, at
the option of Landlord or Tenant, be cancelled from the date
when such authority or party actually takes the Premises or
denies access thereto. Rent and Additional Rent shall be
apportioned to the time of cancellation.
15.2 Tenant shall have a separate and independent claim for the
following:
(i) For the taking of or damage to its and its
subtenants' and licensees' fixtures, furniture and
furnishings, partitions, operating equipment,
inventory and personal property, whether or not the
same are permanently attached to the Premises and
whether or not they can be easily removed without
substantial injury to the Premises, and for the value
of this Agreement;
(ii) Any claim now or hereafter permitted by law for
costs of removal from the condemned premises or
relocation;
(iii) Any claim now or hereafter permitted by law for
loss or interruption of Tenant's business;
(iv) Any claim for a temporary taking of all or any
part of the Premises.
15.3 In the event of any partial taking which does not cause a
termination of this Agreement pursuant to Article 15.1, then
the rent and additional rent shall xxxxx in an amount mutually
equitable to both Landlord and Tenant based on the effect the
taking shall have on Tenant's operation and the relationship
that the area of the Premises taken bears to the area of the
Premises prior to such condemnation.
15.4 After any condemnation or other taking as specified in Article
15.1 and 15.2, Landlord shall, to the extent of proceeds
received as a result of the condemnation and to the extent
permitted by applicable law and practicable on the Plant Site,
promptly make such repairs and alterations in
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order to restore the remainder of the Premises to their same
condition existing prior to the condemnation or taking.
ARTICLE 16 - RELATIONSHIP OF PARTIES
16.1 This Agreement shall not be deemed to create a partnership,
agency or other business relationship between Landlord and
Tenant, other than the tenancy created hereunder, and, except
as otherwise expressly provided in any other agreement to
which Tenant and Landlord are parties, Tenant shall be solely
and exclusively liable for all claims, damages, losses,
liabilities and obligations arising out of the conduct of its
business upon the Premises, including the payment of all taxes
with respect thereto.
ARTICLE 17 - NOTICES
17.1 Any notices or communications required or permitted hereunder
shall be deemed sufficiently given if sent by commercial
courier service or United States Postal Service, certified
mail, postage prepaid, return receipt requested, to the
respective parties at the following addresses:
if to Landlord:
UCAR Carbon Company Inc.
0000 Xxxx Xxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
if to Tenant:
UCAR Graph-Tech Inc.
00000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: President
Either party may change the persons or addresses to which
notice or other communications are to be sent to it by giving
written notice of any such changes in the manner provided
herein for giving notice. Notices shall be deemed given on the
date of delivery or the date of refusal to accept delivery by
the addressee (either as confirmed by the United States Postal
Service or commercial courier service, as the case may be).
ARTICLE 18 - COVENANT AGAINST LIENS; SUBORDINATION
18.1 Tenant shall not encumber, or suffer or permit to be
encumbered, the Premises or the fee ownership thereof by any
lien, charge or encumbrance.
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The violation of this Article shall be considered a breach of
this Agreement. Within thirty (30) days after notice thereof,
Tenant shall satisfy or otherwise cause to be removed of
record any mechanic's, materialmen's or other lien or
encumbrance filed against the Premises arising out of its
occupancy and use of the Premises.
ARTICLE 19 - CONDITION OF PREMISES
19.1 Tenant has inspected the Premises and accepts the same "as
is", without any reliance whatsoever upon any representation,
warranty or guarantee, either express or implied, by Landlord,
its employees or agents as to the condition or state of repair
of the Premises.
19.2 LANDLORD MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES,
EITHER EXPRESS OR IMPLIED, AS TO THE PREMISES OR ANY FIXTURES
COMPRISING ANY PART THEREOF. NO WARRANTY OR GUARANTEE SHALL BE
IMPLIED OR OTHERWISE CREATED UNDER THE UNIFORM COMMERCIAL CODE
OR OTHERWISE AS TO ANY SUCH PROPERTY OR FIXTURES, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR
WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE 20 - SUBORDINATION AND ESTOPPEL
20.1 At the option of Landlord, this Agreement shall be subordinate
at all times to all liens of any kind of any institutional
mortgages (meaning a mortgage, a deed of trust or similar
collateral security agreement or arrangement held by a bank,
savings and loan association, insurance company, pension fund
or other institutional investor or financial institution) as
security for any credit facility, note, debenture, bond or
other debt or obligation (the "Debt") in any amount which may
hereafter be placed on the Premises or the Plant Site (the
"Institutional Mortgage") and to all renewals, modifications,
replacements, consolidations and extensions thereof. Landlord
shall use reasonable efforts to require that the holder or
holders of the Institutional Mortgage (the "Institutional
Mortgagee") agree that:
(i) As long as no default exists beyond applicable
notice and cure periods, which entitles Landlord to
terminate this Agreement or which cause, without any
action of Landlord, the termination of this Lease, or
which entitle Landlord to dispossess Tenant, then:
(a) The right of possession of Tenant to the
Premises, and Tenant's rights arising out of
this Agreement, including, but not limited
to, the renewal options,
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privileges, rights, remedies and causes of
actions hereunder, shall not be affected or
disturbed by either the Institutional
Mortgagee in the exercise of any of its
rights under the Institutional Mortgage or
the Debt, or otherwise by law provided, or
by any purchaser of the Premises or by any
person acquiring title thereof, as referred
to in subsection (c) of this Article 20.1.
(b) In the event that the Institutional
Mortgagee comes into possession or ownership
of the Premises by foreclosure of the
Institutional Mortgage, or by proceedings on
the Debt, or otherwise, this Agreement shall
not be terminated or affected thereby; and
this Agreement shall continue in full force
and effect as a direct lease between Tenant
and the Institutional Mortgagee upon all the
terms, covenants, conditions and agreements
set forth in this Agreement;
(c) In the event that the Premises are sold
or otherwise disposed of pursuant to any
right or any power contained in the
Institutional Mortgage or the Debt as a
result of proceedings thereon, or as
otherwise authorized by law, this Agreement
shall not be terminated or affected thereby,
and the purchaser of the Premises or any
person acquiring title thereto through or by
virtue of said sale or other disposition
shall take subject to this Agreement and any
prior and future rights of Tenant herein;
and this Agreement shall continue in full
force and effect as a direct lease between
Tenant and any party acquiring title to the
Premises, as aforesaid, upon all the terms,
covenants, conditions and agreements set
forth in this Agreement.
(ii) If any building upon the Premises is damaged or
destroyed by fire or other casualty, or if any
portion of the Premises shall be taken by eminent
domain, the insurance proceeds and/or such
condemnation awards will be applied in accordance
with the provisions of this Agreement.
20.2 Tenant shall, without charge, within twenty (20) days after
request by Landlord, but not more than twice in any one
calendar year, certify by written instrument, duly executed
and delivered to Landlord, or any other person, firm or
corporation specified by Landlord:
(a) That this Agreement is unmodified, and in full
force and effect, if such be the case, or if there
have been any modifications, that the same are in
full force and effect, if such be the case, as
modified and stating the modifications and the dates
thereof; and
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(b) Whether or not to the best knowledge of Tenant
there are then existing any set-offs or defenses
against the enforcement of any of the agreements,
terms, covenants or conditions of this Agreement and
any modifications of this Agreement upon the part of
Tenant to be performed or complied with, and if so,
specifying the same.
20.3 Tenant shall, in the event of the sale or assignment of
Landlord's interest in the Premises, or in the event of any
proceedings brought for the foreclosure of or in the event of
exercise of the power of sale under any mortgage made by
Landlord covering the Premises, upon written notice, to the
purchaser and recognize such purchaser as Landlord under this
Agreement.
20.4 Upon the request of a prospective Institutional Mortgagee,
Tenant agrees to give due consideration to any reasonable
modifications or amendments of this Agreement (except with
respect to the provisions for payment of Rent and Additional
Rent and the term hereof) as such Institutional Mortgagee may
reasonably request so long as such modifications or amendments
shall not materially increase Tenant's obligations, materially
decrease Tenant's rights or materially decrease Landlord's
obligations hereunder.
ARTICLE 21 - FORCE MAJEURE
21.1 Except for the obligations of Tenant to pay Rent, Additional
Rent and other amounts as in this Agreement provided, the
period of time during which Landlord or Tenant is prevented
from performing any act required to be performed under this
Agreement by reason of fire, flood, hurricanes, strikes,
lock-outs or other industrial disturbances, explosions, civil
commotion, acts of God or the public enemy, governmental
prohibitions or preemptions, embargoes, inability to obtain
material or labor, the act or default of the other party, or
other events beyond the reasonable control of Landlord or
Tenant, as the case may be, and which event makes performance
hereunder commercially impracticable, shall be added to the
time for performance of such act.
ARTICLE 22 - QUIET ENJOYMENT
22.1 If and so long as Tenant shall pay the Rent and Additional
Rent reserved hereunder and shall perform and observe all the
terms, covenants and conditions on the part of Tenant to be
performed and observed, Landlord covenants that Tenant shall
lawfully and quietly, hold occupy and enjoy the Premises,
subject, however, to the provisions of this Agreement.
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ARTICLE 23 - WAIVER
23.1 No consent or waiver by a party of any breach or default in
the performance by the other party of its obligations
hereunder shall be deemed or construed to be a consent or
waiver of any other breach or default in the performance by
the other party of its obligations. Failure on the part of the
non-breaching party to complain of any act or failure to act
of the breaching party or to declare the breaching party in
default, irrespective of how long such act or failure
continues, shall not constitute a waiver by the non-breaching
party of its rights hereunder.
ARTICLE 24 - MEMORANDUM OF LEASE
24.1 This Agreement shall not be recorded. At the request of either
party, the parties shall execute and acknowledge a memorandum
of lease suitable for recording purposes.
ARTICLE 25 - BROKERAGE FEES
25.1 Landlord and Tenant acknowledge that no real estate broker or
agent or other party is entitled to any brokerage fee,
commission or other compensation on account of this Agreement
or any transaction contemplated hereunder. Tenant shall
indemnify and hold harmless Landlord from all claims, damages,
losses and liabilities of Landlord for any brokerage fee,
commission or other compensation owing to any party claiming
to represent Tenant. Landlord shall indemnify and hold
harmless Tenant from all claims, damages, losses and
liabilities of Tenant for any brokerage fee, commission or
other compensation owing to any party claiming to represent
Landlord.
ARTICLE 26 - GOVERNING LAW
26.1 The validity, interpretation and performance of this Agreement
shall be governed according to the laws of the State of Ohio
applicable to agreements made and to be performed entirely in
that State.
ARTICLE 27 - HOLDOVER TENANCY
27.1 If Tenant continues to occupy the Premises after the
termination of this Agreement, such holding over shall not be
deemed to extend or renew the term hereof, but the tenancy
thereafter shall continue as a tenancy from month-to-month
upon the same terms and conditions as provided herein, except
that the rent shall be increased to 110% of the then current
Rent and Landlord may terminate such tenancy upon ten (10)
days' written notice to Tenant.
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ARTICLE 28 - SUCCESSOR LANDLORD
28.1 In the event that Landlord's interest in this Agreement shall
pass to or devolve upon another, or in the event that the rent
accrued or to accrue hereunder shall be assigned, or in the
event that one other than Landlord shall become entitled to
collect the rent accrued or to accrue hereunder, then and in
any such event, notice of the fact shall be given to Tenant by
Landlord in writing, duly executed and acknowledged by
Landlord and, until such notice and proof shall be given to
Tenant, Tenant may continue to pay the rent accrued or to
accrue hereunder to the one to whom, and in the manner in
which, the last preceding installment of rent hereunder was
paid and each such installment shall, to the extent thereof,
fully exonerate and discharge Tenant. In the event that Tenant
shall pay rent or other charges hereunder to any person other
than Landlord in accord with any notice purporting to be
executed by or on behalf of Landlord, or by or on behalf of
the person who, under the terms of this Agreement, shall give
the notice, and, which is believed in good faith by Tenant to
be genuine, such payment shall constitute payment and
discharge of the obligation of Tenant thus paid. In the event
that Tenant shall be advised of any dispute as to the person
to whom the rent under this Agreement shall be payable, or
shall receive notice of any claim to the payment of rent or
other charges hereunder due or to accrue hereunder from a
person other than Landlord, Tenant shall promptly advise
Landlord in writing of the existence and nature of such claim
and, unless Landlord shall, within twenty (20) days of such
advice by Tenant, either advise the Tenant to pay the rent in
accord with such claim, or shall supply Tenant with a duly
executed release of such claim by the claimant or a direction
from such claimant to pay the rent to Landlord, Tenant shall
be entitled to pay any installment of rent or other charges
hereunder so claimed then due or thereafter to accrue under
this Agreement, into a bank or trust company in the County in
which the Premises are located for deposit to the account of
Landlord and such claimant, and the making of such payment to
such bank or trust company, shall discharge Tenant of any
further obligation for the payment of the rent or other
charges hereunder so paid. Tenant shall be under no obligation
to recognize any agent for the collection of rent accrued or
to accrue hereunder or otherwise authorized to act with
respect to the Premises until written notice of the
appointment and the extent of the authority of such agent
shall be explicitly given by the one appointing such agent.
References in this Article to rent mean Rent, Additional Rent
and other amounts payable to Landlord hereunder.
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ARTICLE 29 - ENTIRE AGREEMENT
29.1 This Agreement together with the Transfer Agreement dated as
of January 1, 2000 between the parties and the agreements,
documents and instruments delivered pursuant hereto contains
all the promises, agreements, conditions and understandings
between Landlord and Tenant with respect to the leasing of the
Premises. No consent, waiver, approval, amendment,
modification or addition with respect to this Agreement shall
be effective unless it is contained in a written agreement
executed by authorized representatives of both parties.
29.2 The covenants, conditions and agreements contained in this
Agreement shall being and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
ARTICLE 30 - NOTICE OF ADDITIONAL SPACE
30.1 If the remainder of the Plant Site not included within the
Premises is vacated by its current tenant (Advanced Ceramics
Corporation) Landlord shall so notify Tenant and afford Tenant
an opportunity, deemed reasonable by Landlord, for Tenant to
lease such remainder.
ARTICLE 31 - WAIVER OF LIEN
31.1 Landlord agrees, upon Tenant's request, to execute any
reasonable waiver of lien and/or waiver of ownership rights,
which may be reasonably requested by any vendor, lessor or
chattel mortgagee, in regard to any of Tenant's furniture,
fixtures, equipment or other article of personal property; and
to use all reasonable efforts to obtain similar releases or
waivers from any mortgagee of the Premises.
ARTICLE 32 - DEFINITION OF CERTAIN TERMS
32.1 For purposes of this Agreement, unless the context requires
otherwise, "Unavoidable delays" shall mean delays due to
strikes, weather, lockouts, inability to obtain labor or
materials (except due to lack of cash or credit), governmental
restrictions, enemy action, civil commotion, fire, casualty or
other causes beyond the reasonable control of Landlord or
Tenant.
ARTICLE 33 - SATELLITE DISH
33.1 Tenant is hereby granted the right, from time to time during
the term of this Agreement, to install, maintain, repair and
replace antennae and satellite dishes and other transmitters
and receivers on the roof or the exterior side or rear walls
of the building located on the Premises or in a secured
location acceptable to Tenant on the ground in close proximity
to
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the Premises. All such installations by Tenant shall be in
accordance with all ordinances, orders, regulations, rules and
laws. Tenant shall have the right to remove any of such
equipment on or before the expiration of the term hereof.
ARTICLE 34 - FASB 13
34.1 Landlord shall supply to Tenant within thirty (30) days after
full execution of this Agreement and within 30 days after the
commencement of each Extended Term (and at other reasonable
times at Tenant's request) information in writing required by
Tenant to comply with its obligations as set forth in
Financial Accounting Standards Board (FASB) Statement of
Financial Accounting Standards No. 13 (accounting principles
for leases, to determine if this Agreement is a capital lease
or an operating lease) or any similar requirements in lieu
thereof imposed by generally accepted accounting principles
which Tenant may deem appropriate to follow, such information
to contain (a) the date of acquisition of the Premises by
Landlord, (b) estimated useful life of Premises at
acquisition, (c) remaining useful life as of commencement of
Initial Term or Extended Term, (d) the fair market value of
the land, the building, and any other appurtenances comprising
the Premises, and (e) such other information as may be
reasonably requested by Tenant.
ARTICLE 35 - DISPUTES
35.1 If at any time hereafter a dispute shall arise between
Landlord and Tenant with respect to any financial obligation
under any of the provisions of this Agreement, the party
against whom the obligation shall be asserted shall have the
right to make payment "under protest" and if such party shall
exercise such right such payment shall not be deemed a
voluntary payment but shall be deemed to reserve to such party
the right to institute appropriate actions or proceedings
against the other for recovery of the whole or such part of
said payment as such party shall claim it was not obligated to
pay hereunder. If at any time a dispute shall arise between
Landlord and Tenant as to any act to be done or work to be
performed by either of them or in or about the Premises under
any of the provisions of this Agreement, the party against
whom the obligation to do such act or perform such work shall
be asserted, may do such act or perform such work and pay the
cost thereof "under protest" and if such party shall do so the
performance of such act or work and payment of such cost shall
not be deemed a voluntary performance of voluntary payment,
but shall be deemed to reserve to such party the right to
institute appropriate actions or proceedings against the other
for recovery of the whole of such cost or such part thereof as
shall represent the cost of performing the act or
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work which such party shall claim it was not obligated to
perform hereunder.
35.2 In no event shall Tenant be obligated to pay Rent or
Additional Rent to more than one entity at any one time.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
UCAR Carbon Company Inc.
/s/
By:______________________________________
Title: __________________________________
UCAR Graph-Tech Inc.
/s/
By:______________________________________
Title: __________________________________
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EXHIBIT "A"
PREMISES
Premises include buildings 3,4, 4A, 5, 5A, 6A, 6D, 25, 25A, 25B, 25C, 25D, 69,
73, 20A as seen on the attached site plan for the Plant Site.
PLANT SITE
See attached Legal Description.
