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Exhibit 10.10
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.
Lease Agreement 3
Article 1 Leased Premises 4
Article 2 Term of Lease 4
Article 3 Rent and Additional Rent 4
Article 4 Use 5
Article 5 Repairs and Maintenance 6
Article 6 Alterations 6
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 14
Article 13 Default 15
Article 14 Fire and Casualty 17
Article 15 Condemnation 17
Article 16 Relationship of Parties 18
Article 17 Notices 19
Article 18 Covenant Against Liens; Subordination 19
Article 19 Condition of Premises 19
Article 20 Tenant's Certificate 20
Article 21 Force Majeure 22
Article 22 Quiet Enjoyment 23
Article 23 Waiver 23
Article 24 Memorandum of Lease 23
Article 25 Brokerage Fees 23
Article 26 Governing Law 24
Article 27 Holdover 24
Article 28 Successor Landlord 24
Article 29 Entire Agreement 25
Article 30 Option for Additional Space 25
Article 31 Right of First Refusal on Sale of the Property 26
Article 32 Landlord's Title 27
Article 33 Waiver of Lien 28
Article 34 Definition of Certain Terms 28
Article 35 Satellite Dish Lease 29
Article 36 FASB 13 29
Article 37 Disputes 30
Exhibit "A" 32
Exhibit "B" Services 36
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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, the Premises,
together with (i) access to the Premises 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. Any use or
exercise of the aforesaid access, use and parking rights shall
be subject to the indemnification and insurance obligations of
this Agreement.
1.2 Tenant's rights to the possession, occupation and use of the
Premises shall be subject to Landlord's exception and
reservation from the Premises of easement, access and other
necessary rights for any utility systems servicing the Plant
Site, whether now existing or hereafter installed upon the
Premises, including without limitation the right to maintain,
repair, replace, change the size of and remove.
ARTICLE 2 - TERM OF LEASE
2.1 The term of this Agreement shall commence on January 1, 2000,
and shall expire on December 31, 2010 unless extended or
sooner terminated as otherwise provided herein.
2.2 Tenant shall have the exclusive and irrevocable option to
extend the terms hereof for five additional periods of five
(5) years (the first extension commencing January 1, 2011 and
expiring December 31, 2015; the second extension commencing
January 1, 2016 and expiring December 31, 2020; the third
extension commencing January 1, 2021 and expiring December 31,
2025; the fourth extension commencing January 1, 2026 and
expiring December 31, 2030; the fifth extension commencing
January 1, 2031 and expiring December 31, 2035; each
individually referred to as the "Extended Term"), provided
that Tenant delivers to Landlord on or before the last day of
the then current 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
extension option.
ARTICLE 3 - RENT AND ADDITIONAL RENT
3.1 During the term hereof, Tenant shall pay to Landlord rent
equal to:
Initial Term 1/1/2000 - 12/31/2010 $213,210.00 per year
payable at the rate of $53,302.50 per quarter
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1st Extension 1/1/2011-12/31/2015 $228,870.00 per year
payable at the rate of $55,965.00 per quarter
2nd Extension 1/1/2016-12/31/2020 $235,064.00 per year
payable at the rate of $58,766.00 per quarter
3rd Extension 1/1/2021-12/31/2025 $246,817.00 per year
payable at the rate of $61,704.25 per quarter
4th Extension 1/1/2026-12/31/2030 $259,158.00 per year
payable at the rate of $64,789.00 per quarter
5th Extension 1/1/2031-12/31/2035 $272,116.00 per year
payable at the rate of $68,029.00 per quarter
Without notice or demand, in advance on the first day of each
calendar quarter during the term hereof, without any setoff,
counterclaim or deduction for any reason whatsoever. The rent
for any partial period at the commencement or termination of
the term hereof shall be apportioned and payable on a per diem
basis.
3.2 During the term hereof, Tenant shall pay to Landlord as
Additional Rent, within ten (10) days after receipt of an
invoice, those charges for the respective Services (as defined
in Article 7.1) as shown on Exhibit B attached hereto.
Landlord reserves the right to adjust the charges from time to
time to reflect the actual fully absorbed costs for any
Services due to increased costs or Tenant's use thereof in
excess of 2000 annual budget projections. Upon written notice
from Landlord to Tenant, such revised additional rent shall
become due and payable in accordance with the provisions of
this Section.
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 graphite, fuel cell, automotive, heat management, fire
protection and fluid sealing products and related products and
for any other lawful purpose incidental thereto, but for no
other purpose unless approved by Landlord. Tenant shall not
cause or permit any hazardous condition or nuisance to arise
or be maintained in, at or on the Premises.
4.2 In its occupation and use of the Premises, Tenant shall comply
fully with all applicable local, State and Federal laws,
ordinances, orders, directives, 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 laws, ordinances, orders, directives or rules or
regulations of any local, State or Federal authorities having
jurisdiction over the Plant Site and the reasonable rules and
regulations of the carriers insuring the Premises, or the
Board of Fire Underwriters or their equivalent, and such
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compliance and observation shall be at Tenant's sole cost and
expense. Tenant shall indemnify and hold harmless Landlord
from any claims, damages, loss, liability and obligation due
to any violation of this Section.
4.3 Tenant shall not, without Landlord's consent, produce,
generate, emit, treat, recycle, store, bury or dispose of any
hazardous or toxic materials, substance or wastes upon the
Premises other than those normally generated in the Tenant's
business. If Federal, State or local regulations reduce the
amount of waste, which may be accumulated at the initial point
of generation, then Tenant shall comply with such
requirements.
4.4 In its occupation and use of the Premises, Tenant shall comply
at a minimum with any health, safety or operating regulations
imposed by law with respect to the various areas and buildings
comprising the Plant in order to facilitate the safe
occupation and use of the Plant.
4.5 There shall be no obligation to occupy or operate within the
Premises at any time.
ARTICLE 5 - REPAIRS AND MAINTENANCE
5.1 Tenant shall take good care of the Premises and, at its sole
cost and expense, shall 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 any waste (other than reasonable wear and
tear), damage or disfigurement to the Premises, or any
overloading of the floors of the Premises.
ARTICLE 6 - ALTERATIONS; IMPROVEMENTS
6.1 The Tenant shall have the right to make alterations and
improvements from time to time without the written consent of
the Landlord, both structural and non-structural, including
additions thereto and demolition thereof, upon the conditions,
however, that following such alterations or improvements there
shall be no decrease of rental space or value of any building
upon the Premises or change in the general character of the
Plant Site and that such alterations or improvements shall
comply with all applicable zoning ordinances, building
regulations, relevant statutes, ordinances and requirements of
all federal, state and municipal departments, and the local
Board of Fire Underwriters.
6.2 Any alterations or improvements made under this Article 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.
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6.3 Tenant shall be entitled to any investment tax credit and for
depreciation on any equipment or other property placed by
Tenant in the Premises, or additions or replacements to the
building or 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 Article 7.3:
(a) Landlord shall provide, or cause to be
provided, to the Premises those services in
the respective quantities and subject to the
specifications and limitations as set forth
in Exhibit B attached hereto (hereinafter
individually and collectively called the
"Services"). Pursuant to Article 3.2, Tenant
shall reimburse Landlord for the
fully-absorbed costs of providing the
Services based upon the charges as set forth
in Exhibit B.
(b) Landlord will provide, or cause to be
provided, the Services solely in conjunction
with the demise of the Premises and as
necessary in order to permit Tenant to enjoy
the full use and occupation thereof. Tenant
shall not make available or resell any
Services delivered hereunder to any other
party. The Services provided by Landlord, or
caused to be provided, shall not be deemed
evidence that Landlord is operating or
holding itself out as a public utility or
that it will make available the Services to
any other party.
(c) Landlord shall not be liable to Tenant for
any claims, damages, loss or liability due
to (i) Landlord's inability or failure to
furnish, or cause to be furnished, any of
the Services pursuant to the provisions of
Exhibit B on account of any force majeure
occurrence as described in Article 21.1,
(ii) any failure of Landlord's utility
suppliers to provide adequate and reliable
service which affects Landlord's ability to
provide, or cause to be provided, any of the
Services, or (iii) any failure, interruption
or curtailment of any of the Services due to
equipment, labor or other problems which do
not arise out of the gross negligence or
willful misconduct of Landlord, 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, interruption or
curtailment of any of the Services.
(d) In the event of any force majeure occurrence
as to any of the Services or any other
failure, interruption or curtailment
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of such Services which prevents Landlord
from having adequate capacity to supply its
own needs and those of Tenant, Landlord
shall have the right to allocate the
available quantity of any such Service on a
fair and reasonable basis according to the
respective prior usage demands of Landlord,
Tenant and other tenants of the Plant Site.
7.2 In the event that Landlord cannot lawfully provide, or cause
to be provided, any of the Services without qualifying as a
public utility or without violation of applicable utility
tariffs, then (i) Landlord shall have no further liability or
obligation to provide, or cause to be provided, any of such
Services, (ii) Landlord's failure to provide, or cause to be
provided, such Services for any of the reasons specified in
this Section shall not be deemed a partial or constructive
eviction, and (iii) Landlord and Tenant shall cooperate in
good faith in order to permit Tenant's receipt of any of such
Services directly from a third-party utility supplier;
provided, however, that all costs and expenses arising out of
such changeover shall be shared equally by Tenant and
Landlord, subject to Landlord's prior written approval of any
such proposed work. In the event that Landlord ceases to
provide, or cause to be provided, any of the Services pursuant
to the immediately preceding sentence, then the applicable
additional rent payable pursuant to Section 3.2 shall be
eliminated.
7.3 Upon written notice to Tenant, Landlord shall have no further
obligation to provide the Services and Tenant shall operate
the Facilities for the benefit of the Plant Site and any
tenants of Landlord, as may exist from time to time, subject
to their equitable contribution of any costs related to
Services furnished for their benefit. Upon assuming
responsibility for operation of the Facilities, Tenant shall
have no further payment obligations under Section 3.2 and
Tenant shall have and enjoy all protections granted to
Landlord under Sections 7.1 and 7.2 as though Tenant were
Landlord for such purposes.
7.4 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.
7.5 Tenant's proportionate share of ad valorem taxes and
assessments applicable to the Premises which shall be payable
pursuant to Section 7.4 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 and determine a suitable ratio.
7.6 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
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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 monthly rent.
7.7 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 liability for such taxes, levies,
impositions and contributions.
7.8 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.
7.9 All payments required to be made by Tenant to Landlord under
this Section 7 shall be payable as additional rent within ten
(10) days after written demand therefor and shall be payable
even though the term hereof (including and extensions) has
expired, provided that they are applicable to any tax period
falling within said term (including any extensions).
ARTICLE 8 - TERMINATION OF LEASE
8.1 At the expiration or earlier termination of the term, 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 termination 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 the Premises or
any fixtures or equipment belonging to Tenant which it is
permitted to remove pursuant to Section 6.2; provided,
however, that in performing such work Tenant shall not impair
the structural integrity or the utility 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 the expiration or termination of this Agreement
shall be deemed abandoned and may be removed or otherwise
disposed of by Landlord without any notice of liability or
obligation to Tenant, but
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Tenant shall remain liable to reimburse Landlord for the cost
of performing any such work.
8.3 Anything to the contrary contained herein notwithstanding,
upon the expiration or other termination of this Agreement,
Tenant shall remain liable at its sole expense: (i) to make
any repairs to the Premises as required in Article 8, (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. In the event the Tenant
does not promptly perform any such work 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 the
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 other termination
of the term hereof and repair any damage caused by such
removal. Tenant shall fully comply with all requirements of
law pertaining to installation and use of such signs. Tenant
may, in compliance with law, 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 of any bodily injury, death,
sickness or disease of any employees, agents, contractors or
invitees of Tenant from any cause whatsoever, 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 show 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 and
liability on account of such matters.
ARTICLE 10 - INSPECTION BY LANDLORD
10.1 No more than once per year 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, (ii) during the final year of the
term showing the Premises to any prospective tenants or
purchasers, or (iii) performing any work as provided under
Article 10.2.
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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
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, SUBLETTING AND MORTGAGES BY TENANT
11.1 Landlord hereby consents that the Tenant may sublet the
Premises or any portion thereof, or license or enter into
concession agreements covering departments therein and may
assign this Lease in writing, 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 the
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
Lease 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 said date;
(c) No further or additional assignment of the Lease
shall be made except upon compliance with and subject
to the provisions of this Article; and
(d) Any subletting shall be subject to all the terms,
conditions and covenants of this Lease.
11.2 Tenant shall have the right to mortgage Tenant's interest in
this Lease, or to assign, pledge or hypothecate the same as
security for any leasehold mortgage. No leasehold mortgage
shall be binding upon Landlord in the enforcement of its
rights and remedies herein and by law provided, unless and
until an executed counterpart thereof, together with the
address of the leasehold mortgagee thereunder, shall have been
delivered to Landlord.
11.3 Whenever any leasehold mortgage shall be in effect, the
following provisions shall apply:
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(a) When giving notice to Tenant with respect to any
default under the provisions of this Lease, Landlord
will also serve a copy of such notice upon the
leasehold mortgagee and no such notice to Tenant
shall be effective unless a copy of such notice is so
served upon the leasehold mortgagee; a copy of such
notice shall be deemed served upon the leasehold
mortgagee if sent by Landlord, by registered or
certified mail, to the address of the leasehold
mortgagee as shown on the executed counterpart of the
leasehold mortgage delivered to Landlord pursuant to
Section 11.2;
(b) The leasehold mortgagee will have the same period
after the serving of any notice as aforesaid upon it
for curing a default in the payment of fixed rent or
additional rent or causing the same to be cured as is
given Tenant after notice to Tenant;
(c) In case Tenant shall default under any of the
provisions of this Lease, the leasehold mortgagee
shall have the right to cure such default whether the
same consists of the failure to pay fixed rent or
additional rent or the failure to perform any other
act which Tenant is hereby required to do or perform
and Landlord shall accept such performance on the
part of the leasehold mortgagee as though the same
had been done or performed by Tenant;
(d) In case Tenant shall default under any of the
provisions of this Lease, other than in the payment
of the fixed rent or additional rent, Landlord will
take no action to effect a termination of this Lease
without first giving notice to the leasehold
mortgagee; and
(i) The leasehold mortgagee shall have a
period of twenty (20) days within which
either to obtain possession of the Premises
or to institute foreclosure proceedings or
obtain the appointment of a receiver, or
otherwise acquire Tenant's interest under
this Lease, and an additional period of
thirty (30) days thereafter within which to
cure such default (except that in the case
of a default which cannot be cured with due
diligence within such period of thirty (30)
days whether due to unavoidable delays or
otherwise, such period shall be extended for
such time as may be necessary to cure the
default except as prevented by unavoidable
delays); or
(ii) In case of a default which is not
susceptible of being cured by the leasehold
mortgagee as provided in subdivision (i)
above, the Landlord will further extend the
periods referred to in such subdivision (i)
to permit the leasehold mortgagee to
complete diligent foreclosure
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proceedings and thereafter to cure
diligently such default provided, however,
that the leasehold mortgagee shall not be
required to continue such possession or
continue such foreclosure proceedings or
receivership if the default shall be cured;
and provided further that during any such
time there shall be no default in the
payment of the fixed rent or additional
rent;
(e) Any leasehold mortgagee may become the legal
owner and holder of this Lease by foreclosure of its
leasehold mortgage or as a result of the assignment
of this Lease in lieu of foreclosure, and in such
event, the leasehold mortgagee shall assume due
performance of the obligations on Tenant's part to be
performed under this Lease;
(f) If, by reason of any default by Tenant, this
Lease shall be terminated by Landlord prior to the
expiration of the term of this Lease, Landlord will
enter into a new lease of the Premises with the
leasehold mortgagee for the remainder of the term
commencing as of the effective date of such
termination, at the fixed rent and additional rent
and upon the covenants, agreements, terms,
provisions, conditions and limitations herein
contained, provided that:
(i) Such leasehold mortgagee makes written
request upon Landlord for such new lease
within thirty (30) days from the date of
such termination; and
(ii) At the time of the execution and
delivery of such new lease such leasehold
mortgagee shall have paid to Landlord any
and all fixed rent and additional rent which
would at the time of the execution and
delivery thereof be due under this Lease for
such termination and pays any and all
expenses, including reasonable counsel fees,
court costs and disbursements incurred in
connection with any such default and
termination as well as in connection with
the execution and delivery of such new
lease, less the net income collected by
Landlord subsequent to the date of
termination of this Lease and prior to the
execution and delivery of the new lease (any
excess of such net income over the aforesaid
sums and expenses to be applied in the
payment of the fixed rent thereafter
becoming due under such lease); and
(iii) Such new lease to the leasehold
mortgagee shall require that all defaults
existing under this lease, other than
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in the payment of fixed rent and additional
rent, be cured with due diligence.
11.4 Landlord agrees to execute such further modifications or
amendments of this Lease (except with respect to the
provisions for payment of fixed rent and additional rent and
the term hereunder) as such leasehold mortgagee may reasonably
require, so long as such modifications or amendments shall not
decrease Tenant's obligations hereunder or increase Landlord's
obligations hereunder, and provided that such modifications or
amendments shall be approved by the holder of the
Institutional First Mortgage.
11.5 The Tenant shall always, and notwithstanding any such
assignment, mortgage or subletting or subleasing and/or
granting concession, and notwithstanding the acceptance of
rent by the Landlord from any such assignee, mortgagee or
subtenant, remain liable for the payment of rent hereunder and
for the performance of the agreements, conditions, covenants
and terms herein contained, on the part of the Tenant herein
to be kept, observed or performed.
ARTICLE 12 - INDEMNIFICATION AND INSURANCE
12.1 Tenant hereby releases and shall indemnify and hold harmless
Landlord from all claims, damages, loss and liability,
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 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 act
or gross negligence of Landlord its employees, agents,
contractors or invitees or other tenants.
12.2 It is understood that Tenant shall be responsible for
obtaining or maintaining insurance coverage for any of
Tenant's personal property or fixtures maintained upon the
Premises. Tenant shall release and indemnify and hold harmless
Landlord from any claims, damages, loss 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 any
other condition now existing or hereafter arising upon the
Premises. 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
said fire and extended coverage insurance policies.
12.3 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 and the adjoining streets, alleys, parking areas and
passageways, under policies of general liability insurance,
including broad form contractual liability and automobile
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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 Section
12.1
12.4 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.
12.5 Upon the execution hereof, Tenant shall furnish to Landlord
certificates of insurance as evidence of the insurance
coverage required under Sections 12.2, 12.3, and 12.4, 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.
12.6 In no event shall Landlord be liable to Tenant for any
special, indirect, incidental or consequential damages on
account of any default by Landlord under this Agreement or any
claims, damages or losses of Tenant arising out of its
possession, occupation or use of the Premises.
12.7 With respect to any fire and extended coverage insurance
policy carried by Landlord upon the Plant Site, Landlord
shall, to the extent available, obtain a waiver of subrogation
by its insurer against Tenant, except to the extent of any
deductible amount under such coverage.
ARTICLE 13 - DEFAULT
13.1 Each of the following shall be deemed a default by Tenant and
a breach of this agreement:
(a) filing of a petition for adjudication as a bankrupt,
or for reorganization, or for an arrangement under
any Federal or State statute;
(b) dissolution or liquidation of Tenant, without the
transfer to and assumption by a financially
responsible third-party of this Agreement;
(c) appointment of a permanent or temporary receiver or a
permanent or temporary trustee of all or
substantially all the property of Tenant;
(d) taking possession of the property of Tenant by a
governmental officer or agency pursuant to statutory
authority for dissolution, rehabilitation,
reorganization or liquidation; and
(e) making by Tenant of an assignment for the benefit of
creditors.
If any event mentioned in this subdivisions (a-e) shall occur,
Landlord may thereupon or at any time thereafter elect to
cancel this Agreement upon ten (10) days' prior written notice
to Tenant and this Agreement
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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 terms of this Agreement.
(f) Default in the payment of the rent or additional rent
herein reserved or any party thereof for a period of
fifteen (15) days after receipt of written notice
concerning such default.
(g) Default in the performance of any other covenant 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. For purposes of this subdivision, no
default on the part of Tenant in performance of work
required to be performed on acts to be done 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 In case of any such default under Article 13.1(f) or (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 herein granted and
all rent and additional rent applicable to the balance of the
term hereof or any then existing extension term shall
thereupon become due and payable. However, a default under
Section 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
Section.
13.4 In the event this Agreement shall be terminated pursuant to
this Article or by summary proceedings or otherwise, Landlord
shall 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 of less than the
remainder of the then current term for any sum which it may
deem reasonable, to any Tenant which it may suitable and
satisfactory, and for any use and purpose which it may deem
appropriate, and in connection with any such lease Landlord
may make such changes in the character of the improvements on
the Premises as Landlord may determine to be appropriate or
helpful in effecting such lease. 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 Section 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.
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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 Plant or 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 Section 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 of 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
Section 14.2 happens during the final 180 days of the term
hereof, or any extension periods, 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, fees 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 the Premises due to any fire
or other occurrence. In the event this Agreement is cancelled
pursuant to Section 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 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 Tenant, cease and become null and void from the
date when the party
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exercising the power of eminent domain actually takes or
interfered with the use of the Premises or denies access
thereto. Rent and additional rent shall be apportioned to the
time of surrender of the Premises.
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', licensees' and fixtures, furniture and
furnishings, partitions, operating equipment,
inventory and personal property, whether or not the
same are permanently attached to the realty and
whether or not they can be easily removed without
substantial injury to the freehold, and for the value
of this Lease;
(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 Section 15.1, then
the rent and additional rent shall xxxxx in an amount mutually
acceptable to 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 Section
15.1 and 15.2, Landlord shall, at its sole cost and expense,
to the extent permitted by applicable law and as the same may
be practicable on the Plant Site, promptly make such repairs
and alterations in 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 The execution of 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 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.
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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
0000 Xxxx Xxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
if to Tenant:
UCAR Graph-Tech
00000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: President
Either party may change the persons or addressed 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 thereof by any lien,
charge or encumbrance, and Tenant shall have the authority to
mortgage or hypothecate this Agreement in any way whatsoever.
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 of state of repair
of the Premises.
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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
(OTHER THAN THE WARRANTY OF TITLE AS PROVIDED 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 Lease shall be subordinate at
all times to the lien of any institutional first mortgage
(meaning a first mortgage or a deed of trust held by a bank,
savings and loan association, insurance company or pension
fund) as security for any note, debenture, bond or otherwise
in any amount which may hereafter be placed on the Premises or
the Plant Site (hereinafter the "Institutional First
Mortgage") and to all renewals, modifications, replacements,
consolidations and extensions thereof, provided and upon the
condition that the holder of the Institutional First Mortgage
(the holder of the Institutional First Mortgage is herein
sometimes called the "Institutional First Mortgagee") shall
agree that:
(i) As long as no default exists beyond applicable
notice and cure periods, nor any event has occurred
which has continued to exist for such period of time
after notice, if any, required by this Lease, which
entitles Landlord to terminate this Lease or which
cause, without any action of Landlord, the
termination of this Lease, or which entitled Landlord
to dispossess Tenant then:
(a) The right of possession of Tenant to the
Premises, and Tenant's rights arising out of
this Lease, including, but not limited to,
the renewal options, privileges, rights,
remedies and causes of actions hereunder,
shall not be affected or disturbed by either
the holder of such mortgage in the exercise
of any of such holder's rights under its
mortgage, or the notes, debentures, bonds or
debt secured thereby, 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 Section.
(b) In the event that the holder of the
Institutional First Mortgage comes into
possession of, or ownership of the title to
the Premises by foreclosure of its mortgage,
or by
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proceedings on the said notes, debentures,
bonds or debt or otherwise, this Lease shall
not be terminated or affected by said
foreclosure or any of said proceedings; and
this Lease shall continue in full force and
effect as a direct lease between Tenant and
such mortgagee upon all the terms,
covenants, conditions and agreements set
forth in this Lease;
(c) In the event that the Premises are sold
or otherwise disposed of pursuant to any
right or any power contained in the
Institutional First Mortgage or bond or
other instrument in connection with such
mortgage or bond as a result of proceedings
thereon, or as otherwise authorized by law,
this Lease 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
Lease and any prior and future rights of
Tenant herein; and this Lease 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 Lease.
(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 Lease.
20.2 In the event that this Lease shall subsequently become
subordinate to an Institutional First Mortgage, Landlord shall
immediately provide Tenant with a Recognition and
Non-Disturbance Agreement satisfactory to Tenant from such
Mortgagee. If Landlord fails to timely provide such
agreement(s) in accordance with this paragraph, then Tenant
may terminate this Lease at any time thereafter.
After such time as Landlord furnishes Tenant with the above
referenced Recognition and Non-Disturbance Agreement, 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 Lease is unmodified, and in full force
and effect, if such be the case, or if there have
been any modifications, that the
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same are in full force and effect, if such be the
case, as modified and stating the modifications and
the dates thereof; and
(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 Lease and any
modifications of this Lease 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
Lease, provided, however, that such purchaser or other
successor in interest to the Landlord recognize Tenant and
assume Landlord's obligations hereunder, including without
limitation obligations for prior and future defaults or
offsets provided for herein. Any such purchaser or successor
shall also furnish proper legal evidence of its rights to the
Premises and this Lease, and shall furnish its address for
notices. Tenant shall not be obligated to change the place it
sends rents and other charges hereunder until Tenant receives
all such documentation and information provided for in this
paragraph.
20.4 Landlord shall, within ten (10) days after requested to do so
by the Tenant herein, deliver an estoppel certificate,
certified by written instrument duly executed and acknowledged
containing information regarding this Lease substantially as
set forth in Section 20.2. Such certificate shall run in favor
of any prospective mortgage holder of Tenant's interests
herein or any prospective assignee or subtenant of Tenant.
20.5 Upon the request of a prospective Institutional First
Mortgagee, Tenant agrees to give due consideration to any
reasonable modifications or amendments of this Lease (except
with respect to the provisions for payment of fixed rent and
additional rent and the term hereunder) as such Institutional
First Mortgagee may reasonably request so long as such
modifications or amendments shall not increase Tenant's
obligations, decrease Tenant's rights or decrease Landlord's
obligations hereunder. Unless acceptable to Tenant, Tenant
shall have no obligation to accede to such requests.
ARTICLE 21 - FORCE MAJEURE
21.1 Except for the obligations of Tenant to pay rent, additional
rent and other charges as in this Agreement provided, the
period of time during which Landlord or Tenant is prevented
from performing any act required to be
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performed under this Agreement by reason of fire, flood,
hurricanes, strikes, lock-outs or other industrial
disturbances, explosions, civil commotion, acts of God of the
public enemy, governmental prohibitions or preemptions,
embargoes, inability to obtain material or labor the act of
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.
ARTICLE 23 - WAIVER
23.1 No consent or waiver, express or implied, by a party to or of
any breach or default in the performance by the other party of
it's 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 or 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,
loss or liability 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, loss or liability of
Tenant for any brokerage fee, commission or other compensation
owing to any party claiming to represent Landlord.
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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 agreement made and to be performed entirely in
that state.
ARTICLE 27 - HOLDOVER
27.1 If Lessee 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 Landlord may terminate such tenancy upon ten (10) days'
written notice to Tenant.
ARTICLE 28 - SUCCESSOR LANDLORD
28.1 In the event that Landlord's interest in this Lease 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 Lease, 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 Lease 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
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under this Lease, 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.
ARTICLE 29 - ENTIRE AGREEMENT
29.1 This Agreement contains all the promises, agreements,
conditions and understanding between Landlord and Tenant with
respect to the leasing of the Premises, and there are no
promises, agreements, conditions or understandings, either
written or oral, between them other than as set forth herein.
No amendment, modification or addition 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 - OPTION FOR ADDITIONAL SPACE
30.1 Should the remainder of the Plant Site not included within the
Premises composed of approximately 204,000 feet ever be
vacated by its current tenant (Advanced Ceramics Corporation)
or any future tenant, Tenant shall have the first right and
option to lease that additional space on similar terms and
conditions as may be in effect under this Lease during that
then current term. Rent shall be determined based on a
breakdown of the tenant's then current rent divided by 207,000
square feet to arrive at a per square foot rental rate. Tenant
may then rent such additional space within the Plant Site at
that rate and this Lease shall be amended to include that
additional space. For example, should the current tenant
vacate the property on the fifth (5th) year of Tenant's first
term, the rent for the additional space should be calculated
as follows:
(a) $213,210.00/207,000 sq. feet = $1.03 per
square foot.
That rental rate shall be in effect until the termination of
Tenant's first term or in five (5) years as provided in this
example.
(b) Should Tenant elect not to immediately lease
the additional space within the Plant Site,
Tenant shall retain a right of
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first refusal against any other Tenant
Landlord may desire. Landlord shall notify
the tenant within ten (10) days of receiving
an offer for lease of the space. Tenant then
may either exercise its right to lease all
or any part of the Plant Site or inform the
Landlord that it waives its right of first
refusal, solely as to the space to be rented
to the prospective tenant.
ARTICLE 31 - RIGHT OF FIRST REFUSAL ON SALE OF THE PROPERTY
31.1 Without affecting or limiting any of the rights, privileges,
options or estates granted to Tenant under this Lease, it is
agreed that if the Landlord at any time during the term of
this Lease receives one or more bona fide offers from third
parties to purchase the Premises and/or all or any part of the
Plant Site and if any such offer is acceptable to Landlord,
then Landlord agrees to notify Tenant in writing, giving the
name and address of the offeror, and the price, terms and
conditions of such offer, and Tenant shall have thirty (30)
days from and after the receipt of such notice from Landlord
in which to elect to purchase the same property for the
consideration contained in the bona fide offer. If Tenant does
not elect to purchase said property and Landlord thereafter
sells the property, the purchaser shall take the property,
subject to and burdened with all the terms, provisions and
conditions of this Lease, including this Article and the
rights of Tenant under this Lease as against the new owner
shall not be lessened or diminished by reason of the change of
ownership. Tenant's failure at any time to exercise its option
under this Article shall not affect this Lease or the
continuance of Tenant's rights and options under this Article
or any other Article.
31.2 In the event Tenant elects to purchase the same property as
provided in this Lease, then Landlord shall, within thirty
(30) days after receipt of such notice of election by Tenant,
deliver to Tenant a title insurance policy in the amount of
the consideration set forth in such offer, issued by a
responsible title guarantee company, showing a good and
marketable title in Landlord. If Landlord fails or refuses to
furnish the title policy, then Tenant may, at its election,
procure the same at Landlord's expense, and in the amount of
the purchase price, and deduct the cost thereof from the cash
consideration to be paid for the property. Tenant shall have
thirty (30) days after receipt of the title policy in which to
examine the title and notify the Landlord whether or not the
title is acceptable to Tenant. If Tenant is willing to accept
Landlord's title and consummate the purchase, then Landlord
shall, within ten (10) days after written notice thereof from
Tenant, convey the premises to Tenant by general warranty
deed, free and clear of all liens and encumbrances except
highway easements, private road easements and restrictions of
record which were of record as of the
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date of Tenant's acceptance of the premises hereunder or
incorporated in an amendment to this Lease, if any, and
deliver such deed to Tenant upon tender of the consideration.
31.3 Notwithstanding any other provisions of this Lease, the
provisions of this Article will not apply to any sale of the
Premises or any property of which the Premises are a part at
foreclosure, and shall not be binding upon any purchaser at
foreclosure, any mortgagee in possession, or any holder of a
deed in lieu of foreclosure or the successors or assigns of
any of the foregoing, or to any sale of the Premises by
Landlord in connection with sale and leaseback financing.
31.4 If Tenant is not willing to accept Landlord's title, Tenant
shall make any objections thereto in writing to Landlord and
Landlord shall be allowed sixty (60) days to utilize its best
efforts to make such title acceptable to Tenant. If such title
is not rendered marketable within sixty (60) days from the
date of said written objections thereto, Tenant may, at its
election, take such action, including instigation of legal
process (in which the Landlord agrees to participate) to
remedy any such defect in title making such acceptable to
Tenant, and to deduct all costs thereof from the cash
consideration to be paid for the property. If the Tenant is
unable to correct such defects in title or elects not to
attempt such remedy, neither party shall be held liable for
damages to the other party and both parties shall be released
of all liabilities and obligations under this Article.
ARTICLE 32 - LANDLORD'S TITLE
32.1 Landlord warrants and represents that as of the date hereof:
(a) Landlord is the owner of a fee simple estate in
the Premises and the Plant Site and has the right and
power to enter into this Lease and to perform same
and by this instrument conveys a good leasehold
interest to Tenant in accordance with the terms,
conditions and provisions hereof.
(b) There are no liens, encumbrances, mortgages,
easements, restrictions, leases or other agreements
affecting the Premises or the Easements prior in lien
to this Lease other than (i) an Institutional First
Mortgage which complies with the provisions of
Article 20 hereof; (ii) reservations, restrictions or
agreements which do not prohibit, restrict or
otherwise affect the right of Landlord or Tenant to
make the alterations described in Article 6 hereof or
the right of Tenant to use the Premises for the
purposes set forth in Article 4 hereof. In the event
that the Tenant shall ever determine that there are
any liens or encumbrances on the Premises or the
Easements prior in lien to this Lease other than (i)
the
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Institutional First Mortgage; (ii) reservations,
restrictions or other agreements which do not
prohibit, restrict or otherwise affect the right of
Landlord or Tenant to make the alterations described
in Article 6 hereof or the right of Tenant to use the
Premises for the purposes set forth in Article 4
hereof, and if Landlord shall fail to cause such
liens or encumbrances to be removed within thirty
(30) days after notice thereof from Tenant, Tenant
may, within thirty (30) days after said thirty (30)
day period, in addition to any rights it may have at
law or equity, cancel this Lease by notice to
Landlord (or waive any such liens or encumbrances) in
which event Tenant shall thereupon be relieved of any
and all liability under this Lease.
32.2 Landlord warrants the non-existence of any zoning or other
restrictions of any nature preventing or restricting use of
the Premises for the conduct of Tenant's business or use of
common areas for parking purposes, and that should such zoning
or other restriction be in effect or adopted at any time
during the term of this Lease, preventing or restricting
Tenant from conducting Tenant's business or using the common
areas in conjunction therewith, Tenant may, at its option,
terminate this Lease and shall be released of and from all
further liability hereunder.
ARTICLE 33 - WAIVER OF LIEN
33.1 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 its best efforts to obtain similar releases or waivers,
from any mortgagee of the Premises.
ARTICLE 34 - DEFINITION OF CERTAIN TERMS
34.1 For purposes of this Lease, unless the context requires
otherwise:
(a) "Gross Area" shall mean the floor area of an
entire building structure or structures and all
component parts thereof, measured to and from the
centerline of demising walls and the outside of
exterior walls. In computing Gross Area there shall
be no exclusion by reason of stairs, elevators,
escalators, interior partitions or other interior
construction or equipment.
(b) "Lease Year" shall mean a calendar year.
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(c) "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.
(d) "Term of this Lease" or "term hereof" shall mean
the original term specified in Article 2 hereof and
any extension term of this Lease, unless the context
otherwise requires.
(e) "Other charges hereunder" shall mean tax charges,
insurance charges, common area maintenance charges,
and any other charges, payments and additional rent
(except for fixed rent) due or payable by Tenant
under this Lease.
ARTICLE 35 - SATELLITE DISH LEASE
35.1 Tenant is hereby granted the right, from time to time during
the term of this Lease, 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 the Premises. All such installations by Tenant shall be in
accordance with all codes and laws. Tenant shall have the
right to remove any of such equipment on or before the
expiration of the lease term.
ARTICLE 36 - FASB 13
36.1 Landlord shall supply to Tenant within thirty (30) days after
full execution of this Lease and within 30 days after the
commencement of each extension term hereof exercised by Tenant
(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 Lease 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 date of Lease or beginning of option, (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.
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ARTICLE 37 - DISPUTES
37.1 If at any time hereafter a dispute shall arise between
Landlord and Tenant with respect to any amount of money to be
paid by either of them to the other under any of the
provisions of this Lease, 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
there shall be deemed reserved to such party the right to
institute appropriate action or proceeding against the other
for recovery of the whole or such part of said sum 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 Lease, 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 there shall be
deemed reserved to such party the right to institute
appropriate action 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 work which
such party shall claim it was not obligated to perform
hereunder.
In no event shall Tenant be obligated to pay rent to more than one entity at any
one time.
IN WITNESS WHEREOF, the parties have caused this Lease Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
UCAR Carbon Company Inc.
By: /s/ Xxxxx X. Xxxxxxx
Title: Vice President
UCAR Graph-Tech Inc.
By: /s/ Xxxx X. Xxxxxx
Title: President
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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.
PLANT SITE
See attached Legal Description.
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EXHIBIT B
SERVICES
Services Quantity Specifications Charges
-------- -------- -------------- -------
1. Telephone/Mail Local and Unicom, Ohio actual charges
Long Distance Xxxx, AT & T, for any and all
Service all mailroom use related calls
Costs and Unicom actual charges
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