LEASE BETWEEN 3D3E LTD. LANDLORD AND TENANT AND GUARANTY OF MISCOR GROUP, LTD.
Exhibit
10.3
LEASE
BETWEEN
3D3E
LTD.
LANDLORD
AND
3-D
SERVICE, LTD.
TENANT
AND
GUARANTY
OF
1
LEASE
THIS
LEASE, made and entered into at
Massillon, Ohio, this 30th day of
November
2007, by and between the 3D3E LTD., an Ohio Limited Liability Company,
("Landlord") and 3-D SERVICE, LTD, an Ohio Corporation ("Tenant").
ARTICLE
1
DEMISED
PREMISES
In
consideration of the rents and
covenants herein stipulated to be paid and performed, Landlord hereby lets
and
leases unto Tenant, subject to the terms, covenants and conditions hereinafter
specified, a certain 9.727 acre tract of real estate with an approximately
65,000 sq/ft. facility and an approximately a 20,000 sq/ft warehouse located
thereon, situated in the City of Massillon, County of Xxxxx and State of Ohio
and having a street address of 000 Xxxx Xxxx XX, Xxxxxxxxx, Xxxx, 00000, as
further described in Exhibit "A" attached hereto together with all improvements
located thereon (the “Premises”).
ARTICLE
2
CONDITION
OF PREMISES AND LANDLORD'S WORK
The
Premises are leased and let subject
to any state of facts which a physical inspection thereof might disclose and
subject to all zoning regulations, restrictions, rules and ordinances, building
restrictions and other Federal, State, or local laws and regulations, now or
hereafter in effect, and, with respect to all structures and improvements
located on or constituting part of the Premises, in their condition as of the
date of this Agreement and without representation or warranty of any
kind.
ARTICLE
3
TERM
3.1 The
term of this lease shall be for a period of Ten (10) years commencing on the
date of the Execution of this Agreement and continuing until the 30th day of
November,
2017, at which date this Lease shall terminate, subject to the conditions and
requirements set forth herein.
2
ARTICLE
4
RENT
AND
ADDITIONAL PAYMENTS
4.1 Tenant
shall pay Fixed Rent to Landlord without any demand therefore and without any
deduction or setoff whatsoever, in the manner, at the times and in accordance
with the following provisions of this Article 4.
4.2 Tenant
shall pay to Landlord as Fixed Rent, for that portion of the term of this Lease
commencing upon the execution of this Agreement and continuing for three (3)
years thereafter, the amount of $45,000.00 per month, payable on the first
day
of each month, commencing on the execution of this Agreement and continuing
on
the same day of each calendar month thereafter. Commencing on the
30th day of
November, 2010, and on each third anniversary thereafter while the lease
continues to be in effect (a “Rent Reset Date”), including any renewal terms
hereof, the Fixed Rent shall be increased for the ensuing three (3) year period
by the percentage increase of the CPI as of the Rent Reset Date over the CPI
as
of the next most recent preceding Rent Reset Date. For purposes
hereof, September 1, 2007, shall be considered the initial Rent Reset
Date. As used herein, the letters CPI mean United States Department
of Labor, Bureau of Labor Statistics, Revised Consumer Price Index, all urban
consumers, U.S. city average, all items (1982–1984 equals 100), or, in the event
such index is not published at a time when its publication is called for hereto,
then the most nearly equivalent index then being published by the Federal
Government or other authoritative compiler of such statistics, and in general
use in northeastern Ohio. Notwithstanding anything herein to the
contrary, in no event shall Fixed Rent decrease at the time Fixed Rent is
adjusted on the Rent Reset Date pursuant to a change in the CPI.
The
monthly installments of Fixed Rent
shall be paid on or before the tenth (10) day of each calendar month during
the
term hereof in advance (except that the monthly installment for the first full
calendar month shall be paid upon the execution hereof.) A pro rata
monthly installment of Fixed Rent shall be due upon the execution of this
Agreement if the first month of the Term is a day other than the first day
of a
calendar month. A pro rata monthly installment of Fixed Rate shall
also be due on the first day of the last calendar month of the Term to cover
rent for the last month of the term if the Term for any reason terminates on
a
day other than the last day of a calendar month. The pro rata Fixed
Rent calculation shall be based on a thirty (30) day month.
4.3 In
addition to the Fixed Rent, Tenant shall pay to Landlord interest at the rate
of
twelve percent (12%) per annum (or such lesser rate of interest as may be the
maximum permitted by applicable law) on all overdue installments of Fixed
Rent.
4.4 In
addition to the Fixed Rent, Tenant shall pay to Landlord additional payments
(the "Additional Payments") payable upon demand from Landlord and consisting
of
all other sums, liabilities and obligations which Tenant has agreed or is
required to pay or discharge pursuant to this Lease including, but not by way
of
limitation, interest at the rate of twelve percent (12%) per annum (or such
lesser rate of interest as may be the maximum permitted by applicable law)
on
all overdue amounts of Additional Payments.
3
4.5 The
term "Lease Year" as used in this Lease means each successive twelve (12) month
period during the term hereof, with the first Lease Year beginning on the first
day of the first full calendar month of the term hereof and ending on the last
day of the twelfth (12th) month thereafter.
4.6 All
Fixed Rent and Additional Payments due Landlord hereunder shall be paid in
lawful money of the United States of America at Landlord's address as set forth
below or at such other place or to such other person as Landlord from time
to
time may designate in writing.
ARTICLE
5
SECURITY
DEPOSIT
5. Upon
execution of this Lease, Tenant shall furnish Landlord the sum of Forty-Five
Thousand and 00/100 Dollars ($45,000) to be held as a security deposit (the
“Security Deposit”) to insure the faithful performance of Tenant’s obligations
stated herein. The Security Deposit shall be deposited in an
interest-bearing account held for the benefit of Tenant to the extent not
forfeited by Tenant under the terms of this Lease. In the event that
Tenant is in default for failure to make timely payments of Fixed Rent under
this Lease more than two (2) times within any twelve-month period, irrespective
of whether or not such defaults are cured, then, without limiting Landlord's
other rights and remedies provided for in this Lease or at law or in equity,
the
Security Deposit shall automatically be increased by an amount equal to the
greater of (i) two (2) times the original Security Deposit, or
(ii) two (2) months' Minimum Rent, which shall be paid by Tenant to
Landlord within fifteen (15) business days of Tenant’s receipt of a written
demand from Landlord for the same.
ARTICLE
6
OPTION
TO
RENEW
6.1 Tenant
shall have the right and option to renew the term of this Lease for Three (3)
consecutive periods of Five (5) years each (the "First Option"), (the “Second
Option”), and (the “Third Option”) from the date of the expiration of the
original term of this Lease or the First Option or the Second Option whichever
the case may be, provided that this Lease shall not have been sooner terminated
pursuant to the terms hereof. To be effective, the option to renew
must be exercised by Tenant by notice delivered to Landlord or mailed to
Landlord by certified mail, postage prepaid and return receipt requested at
least six (6) months prior to the expiration of the original term or the First
Option or the Second Option, whichever the case may be of Tenant’s decision to
renew this Lease. During the First Option, the Second Option, or the
Third Option of this Lease the rights and obligations of Landlord and Tenant
shall be governed by the same terms, covenants and conditions applicable to
the
original term except only that (i) no further option to renew shall apply after
the Third Option, (ii) the Fixed Rent during the First Option, the Second
Option, and the Third Option shall be increased in accordance with the schedule
above in Section 4.2.
4
6.2 The
right of Tenant to renew the term of this Lease shall be subject to the
condition that, both at the time of exercise of the right and at the
commencement of the First Option, the Second Option, and the Third Option,
whichever the case may be, Tenant shall not remain in material default of any
of
its obligations under this Lease after receipt of written notice and time to
cure, if any, as required herein. In the event that Tenant does not
exercise its right to renew the term of this Lease as provided in this Article,
then Landlord shall have the right during the remainder of the original term
of
this lease or respective option periods, which ever the case may be, to
advertise the availability of the Premises for reletting, to erect upon the
Premises signs indicating such availability, and to enter upon and show the
Premises to prospective tenants at reasonable times and after twenty-four (24)
hours’ notice to Tenant of such showing.
ARTICLE
7
TAXES
AND
INSURANCE PREMIUMS
7.1 Tenant
shall pay (i) the real estate taxes levied against the land and building of
which the Premises are a part for the period of time constituting the Lease
Term
and any options exercised by Tenant thereafter, (ii) the insurance premiums
for
fire and extended coverage insurance relating to the Premises, and (iii) the
public liability insurance premiums relating to the Premises.
DEFINITIONS
7.2 As
used herein, the term "real estate taxes" shall include any tax excise or
assessment (other than an income or franchise tax) levied, assessed or imposed
upon or against the rentals or other charges payable by Tenant hereunder, either
as substitution for or in addition to any existing taxes on land and building
or
otherwise resulting from Tenant's use and occupancy of the Premises for the
Period of time constituting the Lease Term and any option periods exercised
by
Tenant thereafter.
PAYMENT
7.3 The
Additional Payments due under Sections 7.1 and 7.2 shall be paid, in each case,
without any deduction or setoff whatsoever, within thirty (30) days after being
billed therefore.
PARTIAL
YEARS
7.4 All
payments due hereunder shall be pro-rated with respect to any partial years
at
the commencement, expiration or termination of the term of this
Lease.
5
ARTICLE
8
REPAIR
AND MAINTENANCE TO THE PREMISES
8.1 Landlord
shall, at its expense, perform any necessary maintenance, repair or replacement
of the roof and structure of the building on the Leased
Premises. “Structure” shall mean that portion of the building which
is integral to the integrity of the building as an existing enclosed unit and
shall, in any event, include footings, foundation, outside walls (except
tuckpointing, which shall be the responsibility of Tenant), skeleton, bearing
columns and interior bearing walls, roof and roofing system. Tenant
shall promptly notify Landlord of any necessary maintenance, repair or
replacement of the roof and structure of the building on the Leased Premises
of
which Tenant becomes aware. Notwithstanding the foregoing, if any
damage to the roof or structural members of the Building is caused by or results
from any act or omission or negligence of Tenant, its agents, employees,
contractors, customers and invitees, then Tenant shall reimburse Landlord for
Landlord’s costs and expenses incurred for repairs or replacements made pursuant
to this Article, within fifteen (15) days after Landlord bills Tenant for such
charges.
8.2 Except
as provided in Article 8.1, Tenant shall, at its sole expense, keep and maintain
the entire Premises and all improvements therein (including, without limitation,
all glass, windows, doors, permitted exterior signs and lights, parking lot,
entranceways, driveways, the exterior canopy lights, foundations, roof, walls,
plumbing, electrical, heating, ventilating, air conditioning and sewage
equipment and facilities, interior non-load bearing walls, floors and ceiling
tiles and all items installed by Tenant) in good condition and repair, including
replacements if necessary. If Tenant refuses or neglects to repair
and maintain the Premises as provided herein, then Landlord may (but shall
not
be obligated to), fifteen (15) or more days after Landlord shall have delivered
to Tenant notice of such failure, make such repairs without liability to Tenant
for any loss or damage that may be incurred to Tenant's merchandise, fixtures
or
other property or to Tenant's business by reason thereof, and the cost of such
repairs shall constitute Additional Payment hereunder and shall be immediately
due and payable.
8.2
Tenant shall keep the Premises, including equipment, facilities and fixtures
therein, at Tenant's expense, clean, neat and in good order, repair and
condition (including all necessary painting and decorating), and, at Tenant's
expense, shall keep all glass, including that in windows, doors and skylights,
clean and in good condition and shall replace any glass which may be damaged
or
broken with glass of the same quality.
ARTICLE
9
PURPOSE
AND MANNER OF USE
9.1 Tenant
shall use and occupy the Premises in a careful, safe and proper manner and
shall
comply with all governmental statutes, laws, rules, orders, regulations and
ordinances arising from Tenant’s use thereof. Tenant shall
obtain, maintain in full force and effect and pay all fees and charges levied,
assessed or charged by any governmental authority in connection with any
licenses, permits or consents of any kind required with respect to Tenant’ use
or occupancy of the Premises.
6
ARTICLE
10
UTILITIES
10.1 Tenant
shall pay promptly when due charges for all utility and communication services
furnished to the Premises during the term hereof including, but not by way
of
limitation, heat, gas, electricity, water and sewer charges and
telephone.
10.2 If
Tenant shall fail to promptly pay any utility or communication charge for
service (whether or not such charge is billed directly by the utility), Landlord
may, but shall not be obligated to pay such charge, and the sums so paid and
any
expenses incurred by Landlord in connection therewith shall be deemed to be
an
Additional Payment immediately due and payable by Tenant.
10.3 If
Tenant shall fail to promptly pay any utility service charge for which Landlord
has billed Tenant or fails to pay within ten (10) days after the due date
thereof any Fixed Rent, Landlord shall have the right, in addition to any other
remedies available to Landlord by the terms of this Lease or at law, to cut
off
and disconnect any and all utilities billed by Landlord during the period for
which such rent or utility bills remain unpaid.
10.4 Landlord
shall not be liable for damages nor shall the rent hereinabove stipulated be
abated on account of any failure of utility service when such failure is not
due
to the negligence of Landlord.
ARTICLE
11
ACCESS
TO
PREMISES BY LANDLORD
11.1 Landlord
shall have free access to the Premises at all reasonable times, during normal
business hours unless an emergency exists, for the purpose of examining the
Premises or making any alterations, repairs or improvements thereto which
Landlord may deem necessary for their safety or preservation, or for the purpose
of examining or making any alterations, repairs or improvements to items passing
over, under, along or through the Premises. No action taken by Landlord in
or
upon the Premises in connection with the foregoing shall constitute an eviction
of Tenant in whole or in part, and the rent reserved by this Lease shall not
xxxxx while any such repairs, alterations or improvements are being made,
notwithstanding any loss or interruption of the business of
Tenant. Nothing contained herein, however, shall be deemed or
construed to impose upon Landlord any obligation, responsibility or liability
whatsoever for the care, maintenance or repair of the Premises or any part
thereof. During the last six (6) months of this term hereof, Landlord
and Landlord's agents and invitees may enter the Premises at any reasonable
time
after twenty-four (24) hours’ notice to Tenant for the purpose of exhibiting the
Premises to prospective tenants.
7
ARTICLE
12
INSURANCE
12.1 Tenant
shall at all times maintain, at its sole cost and expense, insurance on the
Premises of the following character:
A. Tenant, at
its own cost and expense agrees to secure (i) commercial general liability
insurance with no less than Two Million Dollars ($2,000,000.00) combined single
limit for bodily injury and property damage per occurrence, Five Million Dollars
($5,000,000.00) policy aggregate and Five Million Dollars ($5,000,000.00) per
location limit including personal injury, broad form contractual liability,
products liability, and in the amount of Five Million dollars ($5,000,000.00);
(ii) umbrella liability insurance with limits no less than Two Million Dollars
($2,000,000.00) over the commercial general liability policy and Two million
Dollars ($2,000,000.00) in the aggregate; and (iii) all-risk property insurance
in an amount adequate to cover the full replacement value of all fixtures,
equipment and other items of personal property of Tenant located within the
premises.
B. Tenant
also agrees that it will pay to Landlord as an Additional Payment with respect
to the Premises and any improvements located thereon at all times during the
Term, the cost of Landlord’s all risk property insurance. Said insurance shall
be in an amount equal to one hundred percent (100%) of the replacement value
of
the Premises. The policies shall provide that losses payable shall be
payable notwithstanding any act or negligence of any named insured if such
clause is obtainable from the insurance company. Said insurance shall
be written by responsible insurance companies authorized to do business in
the
State of Ohio. Landlord shall deliver to Tenant a copy of the
invoices it receives for such insurance coverage and Tenant shall pay such
sum
to Landlord within thirty (30) days of receiving such invoices.
C. Workmen's
compensation insurance covering all persons employed in connection with any
work
done on or about the Premises with respect to which claims for death or bodily
injury could be asserted against Landlord, Tenant or the Premises, or in lieu
of
such Workmen's Compensation insurance, a program of self-insurance complying
with the rules, regulations and requirements of the Ohio Industrial
Commission. Such insurance shall be written by companies of
recognized financial standing, which are authorized to conduct insurance
business in the State of Ohio, and such insurance shall name as the insured
parties there under Landlord and Tenant, as their interests may
appear.
12.2 Tenant
shall deliver to Landlord promptly after the execution and delivery of this
Lease the original or duplicate policies or certificates of the insurers,
satisfactory to Landlord, evidencing the insurance which is required to be
maintained by Lessee hereunder, and Tenant shall, within thirty (30) days prior
to the expiration of any such insurance, deliver other original or duplicate
policies or other certificates of the insurers evidencing the renewal of such
insurance. Should tenant fail to effect, maintain or renew any
insurance provided for in this Article, or to pay the premiums therefore, or
to
deliver to Landlord any of such policies or certificates, then and in any said
events Landlord, at Landlord's option, but without obligation so to do, may
upon
five (5) days' notice to Tenant, procure such insurance, and any sums expended
by Landlord to procure such insurance shall be deemed to be an Additional
Payment immediately due and payable by Tenant.
8
12.3 Each
of the policies of insurance required hereunder must expressly provide that
the
policy shall not be altered or cancelled without first providing at least 30
days prior written notice to Landlord.
ARTICLE
13
WAIVER
OF
SUBROGATION
13.1 Provided
the following provisions of this Article do not result in the invalidation
of
the policies of fire and/or extended coverage or other insurance covering the
Premises or the contents thereof, Landlord and Tenant agree that in the event
the Premises or its contents are damaged or destroyed by any of the perils
covered by fire and/or extended coverage insurance or other insurance policies
of the parties, the rights, if any, of any party against the other, their
officers, agents, servants and employees, with respect to such damage or
destruction, are hereby waived to the extent of any proceeds received under
any
such policies, notwithstanding the fact that such damage or destruction shall
be
due to the negligence of any or all of the parties in whose favor this provision
operates.
ARTICLE
14
CASUALTY
14.1 Tenant
shall promptly notify Landlord in writing of any damage to or destruction of
the
Premises for any cause whatsoever.
14.2 If
the Premises shall be damaged or injured by any cause covered by Landlord’s
insurance, Landlord shall either (i) to the extent sufficient insurance proceeds
have been received by Landlord, effect the repair thereof as promptly as
reasonably possible, delays beyond Landlord's control excepted, and this Lease
shall remain in full force and effect or (ii) notify Tenant that Landlord elects
to terminate this Lease no later than 180 days after the date of damage or
injury to the Premises. Under no circumstances shall Landlord be
required to replace or repair Tenant's stock in trade, fixtures, furniture,
furnishings, equipment, leasehold improvements or other such items.
14.3 If
during the period following any damage to or destruction of the Premises, Tenant
shall be deprived of the occupancy of any portion of the Premises, the Fixed
Rent payable hereunder shall proportionately adjusted corresponding to the
time
during which and to the portion of the Premises of which Tenant shall be
deprived.
14.4 In
the event of any termination of this Lease pursuant to the provisions of this
Article, Landlord an Tenant shall thereupon be released from any further
liability hereunder, except Tenant shall remain liable for all obligations
and
liabilities under this Lease, actual or contingent, which have arisen on or
prior to such date of termination, including, but not by way of limitation,
Tenant's liability for the payment of the Fixed Rent and Additional
Payments.
9
ARTICLE
15
CONDEMNATION
15.1 If
the whole of the Premises, or any part of the improvements located thereon
as to
render the balance completely unusable by Tenant, shall be taken under power
of
eminent domain, this Lease shall automatically terminate as of the date of
such
condemnation, together with any and all rights and obligations of Landlord
and
Tenant existing or arising in or to the same or any part thereof. In
the event of a partial taking which does not result in a termination of this
Lease, the Fixed Rent shall be apportioned according to the part of the Premises
remaining useable by Tenant. Landlord may, without any obligation or
liability to Tenant other than reasonable notice, stipulate with any condemning
authority for a judgment of condemnation with the necessity of a formal suit
or
judgment of condemnation, and the date of the taking shall be deemed the date
the agreed to under the terms of said agreement or stipulation.
15.2 In
the event the Premises or any of the improvements located thereon, whether
in
whole or in part, shall be taken or condemned either permanently or temporarily
for any public or quasi public use or purpose as set forth above, whether this
Lease is terminated thereby or otherwise continues to be in force and effect,
the entire compensation award thereof, including, but not limited to, all
damages as compensation for diminution in value of the leasehold, reversion
and
fee, will belong to Landlord, without any deduction therefrom for any present
or
future estate of Tenant, and Tenant hereby assigns to Landlord all its right,
title, and interest to any such award to Landlord. However, Tenant
shall have the right to recover from the condemning authority, but not the
Landlord, any such compensation as may be separately awarded to Tenant on
account of interruption of Tenant’s business, for moving and relocation
expenses.
15.3 In
the event of any termination of this Lease pursuant to the provisions of this
Article, Landlord an Tenant shall thereupon be released from any further
liability hereunder, except Tenant shall remain liable for all obligations
and
liabilities under this Lease, actual or contingent, which have arisen on or
prior to such date of termination, including, but not by way of limitation,
Tenant's liability for the payment of the Fixed Rent and Additional
Payments.
ARTICLE
16
ALTERATIONS
AND IMPROVEMENTS
16.1 Tenant
shall make no alterations or improvements in or to the Premises without the
prior written consent of Landlord, which consent shall not be unreasonably
withheld, and Tenant shall not be deemed to be the agent of Landlord with
respect to any contracts entered into or work done regardless of such
consent. Tenant shall indemnify Landlord against any and all
mechanics' liens or other liens or claims in connection with the making of
any
permitted alterations or improvements by Tenant and shall pay when due all
costs, expenses and charges therefore.
10
16.2 All
alterations or improvements, including, but not by way of limitation, heating,
air conditioning and similar equipment (whether or not made or installed with
the prior written consent of Landlord), shall be and remain part of the Premises
and the property of Landlord and subject to this Lease; but personal property
and removable trade fixtures of tenant shall not be deemed to become a part
of
the Premises and the property of Landlord unless so affixed to the Premises
that
their removal will substantially damage the Premises.
16.3 All
personal property and fixtures placed in or about the Premises shall be at
Tenant's own risk. Tenant shall be responsible for and shall pay when
due and payable all municipal, county, state or other taxes assessed during
the
term of this Lease against any improvements or alterations made by Tenant to
the
Premises or against any personal property or fixtures placed by Tenant in,
upon
or about the Premises.
16.4 Provided
Tenant shall have fully performed all of Tenant’s obligations under this Lease,
Tenant may, at the expiration or other termination of this Lease, remove all
of
its personal property and trade fixtures permitted to be removed, but any and
all damage to the Premises resulting from or caused by such removal shall be
promptly repaired by Tenant at Tenant's expense. If at the expiration or other
termination of this Lease, Tenant fails to remove any personal property, trade
fixtures or other property herein permitted to be removed, such property and
fixtures shall be deemed abandoned by Tenant and shall become the property
of
Landlord, and Landlord may thereafter cause such property to be removed from
the
Premises and disposed of, with the costs of any such removal being borne by
Tenant.
ARTICLE
17
SIGNS
17.1 Tenant
shall not place any signs, lettering, awnings or advertising material of any
kind on the exterior walls of the Premises without the prior written consent
of
Landlord. Tenant, at Tenant’s sole cost, shall (i) obtain required
governmental permits for, and maintain in good condition and repair at all
times, any such sign, lettering, awning or advertising matter, and (ii) remove
any such item at the expiration or termination of the term hereof and repair
any
damage to the Premises resulting there from.
11
ARTICLE
18
ASSIGNMENT,
ETC.
18.1 If
Tenant intends to assign its interest in this Lease or to sublet all or a
substantial part of the Premises, Tenant shall give Landlord sixty (60) days
notice prior to the intended assigning or subletting, specifying therein the
date of such intended assigning or subletting and the name of the intended
assignee or sub lessee. No assignment shall be effective unless (i)
Landlord consents in writing to such Assignment, (ii) such assignee or sub
lessee shall not change the use of the demised premises and shall be bound
by
all of the terms and provisions of this Lease, and (iii) Tenant shall not be
released from any of its obligations hereunder. Any transfer by
operation of law (in connection with a merger, consolidation, reorganization,
bankruptcy or otherwise) shall be deemed included in the terms "assign" and
"sublet" for the purposes of this provision.
18.2 It
is the express understanding of the parties that this lease may not be assigned
by Tenant without first obtaining the prior written consent of Landlord, which
consent shall not be unreasonably withheld.
18.3 In
the absence of compliance with this provision, no attempted assigning or
subletting or other transfer shall be of any force or effect
whatsoever.
ARTICLE
19
SUBORDINATION
19.1 Tenant
hereby waives the priority of Tenant's interest in the Premises arising by
virtue of this Lease and subordinates its interest to any mortgage lien or
lien
resulting from any method of financing or refinancing which may become necessary
or desirable to Landlord from time to time, and Tenant, upon demand of Landlord,
shall execute at any and all times such instruments as may be required by any
prospective mortgagee or lien holder in order further to effectuate this waiver
of priority and subordination of Tenant's interest. If Tenant fails
to execute any such instruments within five (5) days after submission to Tenant,
Landlord is hereby authorized to execute such instruments as attorney-in-fact
for Tenant.
ARTICLE
20
DEFAULT
20.1 Any
one of the following occurrences or acts shall constitute an Event of Default
under this Lease: (a) Tenant, at any time during the continuance of
this Lease (and regardless of the pendency of any bankruptcy, reorganization,
receivership, insolvency or other proceedings, in law, in equity or before
an
administrative tribunal, which have or might have the effect of preventing
Tenant from complying with the terms of this Lease) (i) fails to make any
payment of Fixed Rent and such failure shall continue for fifteen (15) days
after any such payment has become due, (ii) fails to make any payment of
Additional Payments or other sum herein required to be paid by tenant, or fails
to observe or perform any other provision hereof, within fifteen (15) days
after
Landlord shall have delivered to Tenant notice of such failure, (iii) receives
two or more notices within any twelve (12) month period of an Event of Default
for failure to make timely payment of Fixed Rent under this Lease (irrespective
of whether or not the defaults have been cured and irrespective of whether
the
notices pertained to the same or different defaults), or (iv) receives four
(4)or more notices within any twelve (12) month period of any other Event of
Default under this Lease (irrespective of whether or not the defaults have
been
cured and irrespective of whether the notices pertained to the same or different
defaults); (b) Tenant or any guarantor of this Lease files a petition in
bankruptcy or for reorganization or for an arrangement pursuant to any present
or future federal or state bankruptcy law or under any similar federal or state
law, or is adjudicated a bankrupt or insolvent or makes an assignment for the
benefit of its creditors or admits in writing its inability to pay its debts
generally as they become due, or a petition or answer proposing the adjudication
of Tenant as a bankrupt or its reorganization under any present or future
federal or state bankruptcy law or any similar federal or state law is filed
in
any court; (c) a receiver, trustee or liquidator of Tenant or of all or
substantially all of the assets of Tenant or of the Premises is appointed in
any
proceeding brought by Tenant, or any such receiver, trustee or liquidator is
appointed in any proceeding brought against Tenant, or Tenant consents to or
acquiesces in such appointment; (d) Tenant's interest in the Premises by virtue
of this Lease or any of Tenant's assets is seized under a levy of execution
or
attachment; (e) it is disclosed that Tenant made material misrepresentations
to
Landlord in connection with its entering into this Lease; or (f) Tenant’s
subsidiary, 3-D Service, Ltd (“3-D”) fails to perform its obligations or
defaults under either Commercial Security Agreement entered into between 3-D
and
BDeWees, Inc or X GEN III, Ltd. on or about November 30, 2007.
12
20.2 This
Lease and the term and estate hereby granted are subject to the limitation
that
whenever an Event of Default shall have occurred, Landlord may, at Landlord's
election and without notice or resort to legal process, with or without
declaring the term of this Lease ended, re-enter and take possession of the
Premises immediately and remove all persons and their property therefrom and
store such property in a public warehouse or elsewhere at the cost of and for
the account of Tenant, and do such further acts as may be necessary and
advisable to recover immediate possession of the Premises, without being deemed
guilty in any manner of trespass and without releasing Tenant from its
obligation to pay the Fixed Rent and Additional Payments reserved hereunder,
and
Tenant shall indemnify Landlord against and shall reimburse Landlord for, all
loss of rent and other damages and expenses which Landlord may incur by reason
of Tenant's default. Landlord may also re-enter as herein provided,
or take possession pursuant to law, and may, from time to time, without
terminating this Lease, make such alterations and repairs as may be necessary
in
order to relet the Premises, and Landlord may relet the Premises or any part
thereof for such term or terms (which may be for a term extending beyond the
term of this Lease) and at such rental or rentals and upon such other terms,
covenants and conditions as Landlord in Landlord's sole discretion may deem
advisable without in any manner releasing Tenant from the obligations of this
Lease or entitling Tenant to any setoff whatsoever against any monies due
Landlord from Tenant for any reason. Notwithstanding any such
reletting without termination, Landlord may at any time elect to terminate
this
Lease for such previous default. Any steps taken by Landlord pursuant
to the foregoing shall be without prejudice to, and shall not be exclusive
of,
any other remedies or damage, which may be available to Landlord.
13
20.3 Tenant
hereby waives and surrenders for itself and all those claiming under it,
including creditors of all kinds, (a) any right and privilege which it or any
of
them may have under any present or future constitution, statute or rule of
law
to redeem the Premises or to have a continuance of this Lease after its
termination by order or judgment of any court, by any legal process or writ
or
under the terms of this Lease, and (b) the benefits of any present or future
constitution, statute or rule of law which exempts property from liability
for
debt or for distress of rent.
20.4 In
the event Tenant shall be in default in the performance of any of its
obligations under this Lease, and an action shall be brought for the enforcement
thereof in which it shall be determined that Tenant was in default, Tenant
shall
pay to Landlord all the expenses incurred in connection therewith including
reasonable attorneys' fees. In the event Landlord shall, without
fault on Landlord's part, be made a party to any litigation commenced against
Tenant, and if Tenant, at its expense, shall fail to provide Landlord with
counsel approved by Landlord, Tenant shall pay all costs and reasonable
attorneys' fees incurred or paid by Landlord in connection with such
litigation.
ARTICLE
21
REIMBURSEMENT
OF LANDLORD
21.1 Landlord
shall have the right (but shall not be obligated) to pay any sums of money
or do
any acts or incur any expenses, including reasonable attorneys’ fees, by reason
of the failure of Tenant to perform or observe any of Tenant’s obligations under
this Lease, and the sums so paid and expenses so incurred by Landlord, together
with all interest, costs and damages, shall be deemed to be Additional Payments
immediately due and payable by Tenant to Landlord without any deduction or
setoff whatsoever.
PREVAILING
PARTY FEES
21.2 Reasonable
attorneys’ fees and costs shall be awarded to the prevailing party in the event
of litigation involving the enforcement or interpretation of this
Lease.
ARTICLE
22
LIENS
22.1 Tenant
shall not, directly or indirectly, create or permit to be created or to remain
and will promptly discharge, at its expense, any mortgage, lien, encumbrance
or
charge on, pledge of, or conditional sale or other title retention agreement
with respect to the Premises or any part thereof or Tenant's interest therein
or
the Fixed Rent or Additional Payments payable under this Lease, other than
any
mortgage, lien, encumbrance or other charge created by or resulting from any
act
of Landlord. Nothing contained in this Lease shall be construed as
constituting the consent or request of Landlord, expressed or implied, of any
contractor, subcontractor, laborer, material man or vendor to or for the
performance of any labor or services or the furnishing of any materials for
any
construction, alteration, addition, repair or demolition of or to the Premises
or any part thereof. Notice is hereby given that Landlord will not be
liable for any labor, services or materials furnished or to be furnished to
Tenant, or to anyone holding the Premises or any part thereof through or under
Tenant, and no mechanics' or other liens for any such labor, services or
materials shall attach to or affect the interest of Landlord in and to the
Premises.
14
ARTICLE
23
INDEMNIFICATION
23.1 Tenant
agrees to protect, indemnify and save harmless Landlord from and against any
and
all liabilities, losses, damages, costs, expenses (including all reasonable
attorneys' fees and expenses of Lessor’s), causes of action, suits, claims,
demands or judgments of any nature whatsoever arising from (a) any injury to
or
the death of any person or any damage to property on the Premises or upon
adjoining sidewalks or in any manner growing out of or connected with the use,
non-use, condition or occupancy of the Premises or any part thereof or resulting
from the condition thereof or of the adjoining sidewalks, except in the event
that such injury, death, or damage is caused by Landlord’s action or inaction in
connection with Landlord’s obligations under Section 8.1 of this Lease; and (b)
any violation by Tenant of any term, covenant or condition of this lease, of
any
contracts or agreements to which Tenant is a party and of any restrictions,
statutes, laws, ordinances or regulations affecting the premises or any part
thereof or the ownership, occupancy or use thereof.
ARTICLE
24
NON-LIABILITY
24.1 Landlord
shall not be liable for any loss, injury or damage to any persons or to Tenant's
business or property, or property of others, nor shall Landlord be considered
to
be in default hereunder on account of any such loss or damage resulting from
any
cause whatsoever, including, but not by way of limitation, fire, explosions,
falling plaster, electrical shorts, rain, snow, steam or gas leaks from any
pipes, appliances, plumbing or from the roof, street or
sub-surface.
ARTICLE
25
ATTORNMENT
25.1 Tenant
shall, in the event any proceedings are brought for the foreclosure of (whether
by judicial sale or otherwise), or in the event of the exercise of the power
of
sale under, any mortgage made by Landlord covering the Premises, attorn to
the
purchaser upon any such foreclosure or sale and recognize any such purchaser
as
Landlord under this Lease. However, Tenant's obligation to attorn to
the purchaser will be conditioned on Tenant's receipt of a non-disturbance
agreement.
15
ARTICLE
26
OFFSET
26.1 Within
fifteen (15) days after Tenant has received a request therefore by Landlord,
Tenant shall deliver to any proposed mortgagee or purchaser, or to Landlord,
in
recordable form, a certificate certifying that this Lease is in full force
and
effect and there are no defenses or offsets thereto, or stating any claims
by
Tenant.
ARTICLE
27
ACCORD
AND SATISFACTION
27.1 No
payment by Tenant or receipt by Landlord of a lesser amount than the Fixed
Rent
or Additional Payments herein stipulated shall be deemed to be other than
on
account of the earliest rent due, and no endorsement or statement on any
check
or any letter accompanying a check for payment of rent shall be deemed an
accord
and satisfaction, and Landlord's right to recover the balance of such rent
or to
pursue any other remedy available to Landlord shall remain.
ARTICLE
28
NO
PARTNERSHIP
28.1 Landlord
is not in any way, at any time or for any purpose a partner of Tenant in
the
conduct of Tenant's business, or otherwise, or a joint venturer or member
of a
joint enterprise with Tenant in regards to Tenant's business, and the provisions
of this Lease relating to the Percentage Rent payable hereunder are included
solely for the purpose of providing a method whereby the rent is to be measured
and ascertained.
ARTICLE
29
HOLDOVER
29.1 If
Tenant shall remain in possession of the Premises after the expiration of
the
term of this Lease, no action by Landlord, by accepting rent or otherwise,
shall
be construed as recognition by Landlord of a continuing tenancy or as creating
a
renewal term of the same duration as the term of this Lease or a tenancy
from
year to year or month to month, but any continuing occupancy shall be deemed
to
be a tenancy from day to day only, governed in all things, except as to the
term, by the provisions of this Lease with the exception of rent. The
rental amount during any holdover period shall be an amount equal to the
rent
paid during the period of time immediately preceding the holdover times One
Hundred and Fifty percent (150%).
16
ARTICLE
30
RELEASE
30.1 In
the event of any sale of, or other transfer of title to, the Premises, Landlord
(and in case of any further sale or transfer, and then seller or transferor)
shall be automatically released from any and all further obligations to Tenant
under this Lease, though such release shall in no way affect any rights,
claims
or causes of action which Landlord may have against Tenant. Tenant
shall, in the event of any such sale or other transfer of title, recognize
any
purchaser or transferee as the new Landlord under this
Lease. Tenant’s obligations under this section are expressly
conditioned upon written assumption of the Lease by the purchaser of or
transferee of title to the Premises
ARTICLE
31
QUIET
ENJOYMENT
31.1 If
and so long as Tenant shall observe and perform all the terms, covenants
and
obligations required by it to be observed and performed hereunder, Landlord
warrants peaceful and quiet occupation and enjoyment of the Premises by Tenant;
provided, that Landlord and Landlord's agents may enter upon and examine
the
Premises as provided elsewhere in this Lease.
ARTICLE
32
NOTICES
32.1 All
notices, demands, requests, consents, approvals and other instruments required
or permitted to be given pursuant to the terms of this Lease shall be in
writing
and shall be deemed to have been properly given if (a) with respect to Tenant,
sent by registered or certified mail, postage prepaid, addressed to Tenant
at
3-D Service, Ltd., Attention: ____________________, at
________________________________, and (b) with respect to Landlord, sent
by
registered or certified mail, postage prepaid, addressed to: 3D3E, Ltd.,
Attention: Xxxxxxx X. XxXxxx, President, at 0000 Xxxxxx Xxxxxx, X.X.,
Xxxxxx, Xxxx 00000, with copies to Xxxxx X. Xxxxxxxx, Second
Generation Place, 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000 and Xxx Xxxxxxx,
Esq., Day Xxxxxxxx Ltd., X.X. Xxx 00000, Xxxxxx, Xxxx 00000-0000, and with
respect to Guarantor, sent by registered or certified mail, postage prepaid,
addressed to MISCOR Group, Ltd., 0000 X. Xxxxxx Xx. Xxxxx Xxxx,
Xxxxxxx 00000. Landlord, Tenant, and Guarantor shall
each have the right from time to time to specify as their or its address
for
purposes of this Lease any other address upon giving written notice thereof
to
the other party in the manner set forth in this Article.
17
ARTICLE
33
SURRENDER
33.1 Upon
the expiration or earlier termination of this Lease, Tenant shall peaceably
leave and surrender the Premises to Landlord in the same good order and
condition in which the Premises were originally received from Landlord at
the
commencement of this Lease, excepting reasonable wear and tear or as repaired
or
altered as provided in or required by an provision of this
Lease. Tenant shall remove from the Premises on or prior to such
expiration or earlier termination all property situated thereon which is
not
owned by Landlord, and, at its expense, shall, on or prior to such expiration
or
earlier termination, repair any damage caused by or resulting from such
removal. Property not so removed shall become the property of
Landlord, and Landlord may thereafter cause such property to be removed from
the
Premises and disposed of, but the cost of any such removal and resulting
damage
shall be borne by Tenant.
ARTICLE
34
BROKER
34.1 Tenant
and Landlord represent and warrant to each other that there are no claims
for
real estate brokerage commissions or finder’s fees in connection to this
transaction and that each party hereto agrees to indemnify and defend the
other
party and hold it harmless from all liabilities arising from any such brokerage
claim or commission arising from its actions.
ARTICLE
35
SEVERABILITY
35.1 Each
and every covenant and agreement contained in this Lease is, and shall be
construed to be, a separate and independent covenant and agreement, and the
breach of any such covenant or agreement by Landlord shall not discharge
or
relieve Tenant from its obligations to perform each and every covenant binding
upon Tenant. If any term or provision of this Lease or the
application thereof to any person or circumstances shall to any extent be
invalid and unenforceable, the remainder of this Lease, or the application
of
such term or provision to persons or circumstances other than those as to
which
it is invalid or unenforceable, shall not be affected thereby, and each term
and
provision of this Lease shall be enforced to the extent permitted by
law.
18
ARTICLE
36
BINDING
EFFECT
36.1 All
of the terms, covenants and conditions contained in this Lease shall be binding
upon the respective heirs, personal representatives, successors and assigns
of
Landlord and Tenant and shall inure to the benefit of the successors and
assigns
of Landlord and the permitted heirs and assigns of Tenant to the same extent
as
if each such person or entity were in each case named as a party to this
Lease;
provided, however, that this Lease shall not be binding on Landlord or its
successors if Landlord has been released from its obligations under this
Lease.
ARTICLE
37
MISCELLANEOUS
37.1 The
individuals signing this Lease on behalf of Tenant represent and warrant
that
they have the requisite power and authority to bind Tenant.
37.2 This
Lease may not be changed, modified or discharged except by a writing signed
by
Landlord and Tenant.
37.3 This
Lease shall not be recorded, but a memorandum thereof may be recorded by
either
party.
37.4 The
representations set forth herein shall survive the termination of this
lease.
ARTICLE
38
TITLES
38.1 The
titles to the various provisions of this Lease have been inserted for convenient
reference only and shall not to any extent have the effect of modifying,
amending or changing the expressed terms and provisions of this
Lease.
ARTICLE
39
GOVERNING
LAW
39.1 The
Lease shall be governed by and interpreted under the laws of the State of
Ohio.
19
ARTICLE
40
ENVIRONMENTAL
40.1 Hazardous
Materials. Landlord and Tenant agree as follows with respect to
the existence of use of Wastes, Solid Wastes, Hazardous Wastes, or Hazardous
Substances (as defined in Section 40.3) on the Property:
A. Tenant
shall (i) not cause or permit any Wastes, Solid Wastes, Hazardous Wastes,
or
Hazardous Substances to be brought upon, kept or used in or about the Premises
by Tenant, its agents, employees, contractors or invitees, except to the
extent
consistent with the activities of Xxxxxxx’x immediate predecessor in interest to
the Premises, without the prior written consent of Landlord (which Landlord
shall not unreasonably withhold as long as Tenant demonstrates to Landlord’s
reasonable satisfaction that such Wastes, Solid Wastes, Hazardous Wastes,
or
Hazardous Substances are necessary or useful to Tenant’s business and will be
used, kept and stored in a manner that complies with all Laws relating to
any
such Wastes, Solid Wastes, Hazardous Wastes, or Hazardous Substances so brought
upon or used or kept in or about the Premises). If Tenant breaches
the obligations stated in the preceding sentence, or if the presence of Wastes,
Solid Wastes, Hazardous Wastes, or Hazardous Substances on the Premises results
in contamination of the Premises, or if contamination of the Premises by
Wastes,
Solid Wastes, Hazardous Wastes, or Hazardous Substances otherwise occurs
for
damage resulting therefrom, then Tenant shall indemnify, defend and hold
Landlord harmless from any and all claims, judgments, damages, penalties,
fines,
costs, liabilities or losses (including, without limitation, diminution in
value
of the Premises, damages for the loss or restriction on use of rentable or
usable space or of any amenity of the Premises, damages arising from any
adverse
impact on marketing of the Premises, and sums paid in settlement of claims,
attorneys’ fees, consultant fees and expert fees) which arise during or after
the Lease Term as a result of such contamination. This
indemnification of Landlord by Tenant includes, without limitation, costs
incurred in connection with any investigation, of site conditions or any
cleanup; remedial, removal or restoration work required by any federal, state
or
local governmental agency or political subdivision because of Wastes, Solid
Wastes, Hazardous Wastes, or Hazardous Substances present in the soil or
ground
water on or under the Premises. Without limiting the foregoing, if
the presence of any Wastes, Solid Wastes, Hazardous Wastes, or Hazardous
Substances on the Premises caused or permitted by Tenant results in any
contamination of the Premises, Tenant shall promptly take all actions at
its
sole expense as are necessary to return the Premises to the condition existing
prior to the introduction of any such Wastes, Solid Wastes, Hazardous Wastes,
or
Hazardous Substances to the Premises; provided that Landlord’s approval of such
actions shall first be obtained, which approval shall not be unreasonably
withheld so long as such actions would not potentially have any material
adverse
long-term or short-term effect on the Premises.
40.2 Tenant
shall at all times comply with all applicable local, state, and federal laws,
rules, and regulations relating to the storage, use, transport and disposal
of
Wastes, Solid Wastes, Hazardous Wastes, or Hazardous Substances.
40.3 As
used herein, the terms Wastes, Solid Wastes, Hazardous Wastes, and Hazardous
Substances shall have the same meaning as such terms are defined the
Comprehensive Environmental Response, Compensation, and Liability Act of
1980
and Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §9601 et
seq., as amended (collectively referred to as “CERCLA”), the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. §6901 et seq., as
amended (“RCRA”), or any other similar federal, state, or local laws or
regulations now or hereinafter promulgated pursuant thereto, including but
not
limited to, any laws related to sewage or mixture of sewage or other waste
material that passes through a sewer system to a treatment facility, any
industrial waste--water discharge that is subject to regulation under the
Federal Water Pollution Control Act, 33 U.S.C. §1251 et seq., as
amended, or the Clean Air Act, 42 U.S.C. §7401 et seq., as amended, and
any source material, special nuclear material, or byproduct material as defined
by the Atomic Energy Act of 1954, 42 U.S.C. §3011 et seq., as
amended.
20
The
parties hereto have caused this
instrument to be signed at the place and on the day and year first above
written.
3D3E,
LTD.
By
/s/
Xxxxxxx X.
XxXxxx
Xxxxxxx
X. XxXxxx, President
3-D
SERVICE, LTD.
By /s/
Xxxx X.
Xxxxxxx
Xxxx
X. Xxxxxxx, Chairman of the Board
STATE
OF
OHIO )
)
SS:
COUNTY
OF
XXXXX )
Before
me, a Notary Public in and for
said State and County, personally appeared the above-named 3D3E, LTD., an
Ohio
Limited Liability Company, by Xxxxxxx X. XxXxxx, its President, who acknowledged
that he did sign the foregoing instrument on behalf of said limited liability
company and that the same is the free act and deed of said limited liability
company and his free act and deed personally and as such President.
IN
TESTIMONY WHEREOF, I have hereunto
subscribed my name and affixed my official seal at Canton, Ohio, this 30th
day
of November, 2007.
/s/
Xxxxxx X.
Xxxxxx
Notary
Public
21
STATE
OF
INDIANA )
) SS:
COUNTY
OF
ST. XXXXXX )
Before
me, a Notary Public in and for
said State and County, personally appeared the above-named 3-D SERVICE, LTD.,
an
Ohio Corporation, by Xxxx X. Xxxxxxx, its Chairman of the Board who acknowledged
that he did sign the foregoing instrument and the same is his free act and
deed
and the free act and deed of the corporation.
IN
TESTIMONY WHEREOF, I have hereunto
subscribed my name and affixed my official seal at South Bend, Indiana,
this 30th day of November, 2007.
/s/
Xxxxx X.
Xxxxx
Notary
Public
22
GUARANTY
Now,
therefore, in consideration of the
execution of the lease by Landlord, the undersigned jointly and severally
unconditionally guarantee the full performance of all of the terms, covenants,
and conditions of the lease on the part of Tenant, including the payment
of all
rents and other charges to accrue under the lease. The undersigned
further agrees as follows:
1. This
guaranty shall continue in favor of Landlord, notwithstanding any extension,
modification, or alteration of the lease between the parties, their successors,
or assigns, and notwithstanding any assignment of the lease, with or without
the
consent of Landlord. No extension, modification, alteration or
assignment of the lease shall in any manner release or discharge the
undersigned.
2. This
guaranty shall continue unchanged by any bankruptcy, reorganization, or
insolvency of Tenant or any successor or assignee of Tenant, or by any
disaffirmance or abandonment by a trustee of Tenant.
3. Landlord
may, without notice, assign the lease in whole or in part, and no assignment
or
transfer of the lease by Landlord shall operate to extinguish or diminish
the
liability of the undersigned.
4. The
liability of the undersigned under this guaranty shall be primary in any
right
of action which shall accrue to Landlord under the lease. Landlord
may, at its option, proceed against the undersigned without having commenced
any
action or having obtained any judgment against Tenant.
5. Reasonable
attorneys’ fees and costs shall be awarded to the prevailing party in the event
of litigation involving the enforcement or interpretation of this
Guaranty.
6. The
undersigned waive notice of any demand by Landlord, as well as any notice
of
default in the payment of rent or any other amounts contained or reserved
in the
lease.
23
7. The
terms and provisions of this guaranty are binding on and inure to the benefit
of
the respective successors and assigns of the parties named in the
lease.
| MISCOR GROUP, LTD., an Indiana corporation | |||
| /s/ Xxxx X. Xxxxxxx | |||
|
By:
|
Xxxx X. Xxxxxxx | ||
|
Its:
|
President
and CEO
|
||
| Dated: | November 30, 2007 | ||
| MAGNETECH INDUSTRIAL SERVICES, INC., an Indiana corporation | |||
| /s/ Xxxx X. Xxxxxxx | |||
|
By:
|
Xxxx X. Xxxxxxx | ||
|
Its:
|
CEO
|
||
| Dated: | November 30, 2007 | ||
24
