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EXHIBIT 10.4
ALLIANCE, OHIO
A G R E E M E N T
F O R
B U I L D I N G L E A S E
DATED AUGUST 1, 1996
BY AND BETWEEN
CP ALLIANCE, INC.,
A MICHIGAN CORPORATION
LANDLORD,
AND
UNITED STATES CAN COMPANY,
A DELAWARE CORPORATION
TENANT
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A G R E E M E N T
F O R
B U I L D I N G L E A S E
CP ALLIANCE, INC., a Michigan corporation ("Landlord"), hereby
leases to UNITED STATES CAN COMPANY, a Delaware Corporation ("Tenant"), and
Tenant hereby accepts, subject to the terms and conditions of this Lease, those
certain buildings containing approximately 52,000 square feet (the "Building")
located at 00000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, and the surrounding land
containing approximately 10.5 acres and legally described on Exhibit A which is
attached hereto and made a part hereof (the Building and the surrounding
property used as the parking areas and driveway shall be referred to as the
"Premises" and the said property and Building and Landlord's interest therein
shall be referred to as the "Property"), for an initial term (the "Term") of
five (5) years commencing on August 1, 1996 (the "Commencement Date"), and
ending on July 31, 2001 or such other date as the Term is extended pursuant to
Article IX hereof (the "Termination Date").
RECITALS
WHEREAS, Tenant has entered into a certain Stock Purchase
Agreement dated August 2, 1996 with Xxxxxx X. Xxxxx, Xxxxxx Xxxxxxx et al. (the
"Stock Purchase Agreement") pursuant to which Tenant has agreed to purchase all
of the stock of CPI Plastics, Inc., CP Ohio, Inc. and CP Illinois, Inc.
WHEREAS, in connection therewith, Landlord and Tenant have
agreed to enter into this Lease;
WHEREAS, if requested by either party to this Lease, a
memorandum of this Lease in recordable form duly executed and acknowledged
shall be entered into and recorded by the parties hereto;
NOW, THEREFORE, IN CONSIDERATION of the above demise, and the
acceptance of the mutual covenants herein contained, Landlord and Tenant
covenant and agree as follows:
ARTICLE I
RENTAL
1.1. Rental. Tenant shall pay to Landlord, at such place
as Landlord may designate to Tenant in writing, the rent and other payments
reserved and required under this Article I, which rent and other payments,
together with all other amounts becoming due from
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Tenant to Landlord hereunder, are herein collectively referred to as the "Rent"
or "Rental." Except as set forth in Section 10.4 of the Stock Purchase
Agreement, all Rental shall be paid without notice or demand, and without
abatement, deduction, counterclaim or set-off. In the event Tenant does not
make Rental payments within ten (10) days of receipt of notice that such amount
is unpaid, Tenant shall pay to Landlord Three Hundred Dollars ($300.00) as a
late fee.
1.2. Base Rent. Subject to rent adjustments in accordance
with Section 1.3 hereof, Tenant shall pay to Landlord an annual Base Rent (the
"Base Rent") set forth on Exhibit B attached hereto and made a part hereof.
Base Rent shall be paid in advance on the first day of each and every calendar
month during the Term.
1.3. Additional Payments. In addition to Base Rent,
Tenant shall pay all of the Expenses (as hereafter defined) assessed or
incurred in connection with the Premises on or before the respective due dates
thereof. Tenant's obligation to pay the Expenses shall survive the expiration
of the Term. For purposes of this Section 1.3, Expenses shall mean, for any
calendar year, all reasonable and customary expenses, costs and disbursements
which Landlord shall pay or become obligated to pay because of or in connection
with the operation, maintenance, repair and replacement, of the Premises (other
than the items which are Landlord's responsibility pursuant to Section 2.2 of
this Lease) and of the personal property, fixtures, machinery, equipment,
systems and apparatus located therein or used in connection therewith,
including, but not limited to, the cost of utilities to the Premises.
Notwithstanding the foregoing, payments made or incurred by Landlord or Tenant
prior to the Commencement Date shall not be included in Expenses.
1.4. Triple Net Lease. Except for Landlord's obligations
delineated in Section 2.2 hereof, the parties hereto intend that the Rental
payable hereunder shall be an absolute net return to Landlord and that, except
as expressly provided to the contrary herein or the Stock Purchase Agreement,
all costs, expenses and obligations of whatever kind, whether foreseen or
unforeseen, general or special, ordinary or extraordinary, that may arise in
connection with the use, occupancy, maintenance or operation of the Premises
shall be paid or performed by Tenant. Tenant shall not be obligated to pay any
income or franchise taxes which may be levied against Landlord.
1.5. Taxes. (a) Tenant shall pay, as Additional Rent and
prior to delinquency, all ad valorem real estate taxes, special assessments and
personal property taxes (including any rental or similar taxes and license,
building, occupancy or similar fees levied or imposed in lieu of or in addition
to general real or personal property taxes) which may be levied or imposed
during the Term against the Premises or any part thereof. Tenant shall pay
before delinquency all taxes, assessments, license fees and other public
charges levied, assessed or imposed upon its business operations and its
leasehold improvements, merchandise and other personal property in or about the
Premises (collectively, the "Taxes"). Tenant shall deliver to Landlord copies
of receipts showing payment of said real estate taxes within thirty (30) days
after request by Landlord.
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(b) Tenant shall have the right to contest at Tenant's
expense, all Taxes levied against the Premises by legal proceedings provided
that such proceedings have the effect of preventing the forfeiture of the
Premises or any part thereof to satisfy the same. All contest proceedings
shall be conducted in good faith and with due diligence by Tenant. Tenant
shall give Landlord such security as Landlord may reasonably require to insure
the payment of the Taxes so contested, and all interest and penalties thereon.
Landlord shall cooperate in any such proceedings.
(c) Taxes with respect to the years in which the Term
commences and expires shall be prorated between Landlord and Tenant, and
together with the first installment of Rental hereunder, Tenant shall pay to
Landlord the portion of Taxes, if any, which have been paid by Landlord and
which are attributable to the Term of this Lease and upon expiration of the
term (except in the event Tenant purchases the property pursuant to the Option
Agreement as hereinafter defined), Landlord shall pay to Tenant the portion of
any Taxes, if any, which have been paid by Tenant and which are attributable
after the Term of this Lease.
ARTICLE II
TENANT'S ACCEPTANCE AND USE OF PROPERTY
2.1. Use. Subject to the Permitted Exceptions (as
hereafter defined), Tenant shall have the exclusive right to and shall occupy
and use the Property for its business operations and any other use reasonably
related thereto. Tenant shall not occupy or use the Premises or permit the
Premises to be occupied or used for any purpose, act, or thing which is in
violation of any public law, ordinance, or governmental regulation.
2.2. Maintenance and Repair and Replacement. Except for
damage caused by Tenant, Landlord shall, in full compliance with all applicable
laws and ordinances, maintain and make all necessary structural repairs,
replacements and alterations to the Building, including but not limited to
foundations, roofs, exterior and load bearing walls, structural columns and
structural beams. Landlord shall proceed promptly with such maintenance,
repairs and replacements.
Tenant shall, at its own cost and expense subject to the
provisions of Section 2.3, (i) keep the interior of the Premises in a clean and
tenantable condition during the Term and (ii) maintain in good operating
condition and repair, ordinary wear and tear excepted, all electrical,
mechanical and plumbing fixtures located within the Premises, all system and
fixtures serving the Premises, and the ventilating, heating and air
conditioning, if any, systems serving the Premises the floors, the parking lot
and the parking area during the Term; provided however, Tenant shall have no
responsibility with respect to the maintenance of the tin outbuilding
containing less than 1000 square feet and shall have the right to tear down
such building at Tenant's option. Tenant shall also repair any damage to the
Premises caused by Tenant, or its agents or employees, ordinary wear and tear
excepted.
If either party fails to make or commence to make such repairs
after written notice thereof from the other party and applicable grace periods,
the notifying party may, in its sole
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discretion, do so and the defaulting party shall pay to the notifying party the
reasonable cost thereof within thirty (30) days of being billed therefor. In
the event the defaulting party does not reimburse the notifying party within
the aforesaid thirty (30) day period, such failing shall be deemed to be a
further default hereunder and such amount shall bear interest from the date of
the statement at the rate set forth in Section 13.3(b). Landlord may enter the
Premises at reasonable times to inspect or show the Property to prospective
tenants during the last six (6) months of the Term or the extended Term if
applicable (so long as the option to extend set forth in Section 9.1 has not
been exercised) or to make such repairs to the Premises as Landlord shall
reasonably deem necessary, or as required in order to comply with its
obligations hereunder or as required by any governmental authority or judicial
order. In making such entry, Landlord shall use its best efforts not to
unreasonably interfere with Tenant's use and occupancy of the Premises, and,
except in the event of an emergency, shall enter only upon reasonable prior
notice to Tenant explaining the reasons therefor.
2.3. Alterations. Tenant shall not, without Landlord's
prior written consent, alter or remodel the Premises, which consent shall not
be unreasonably withheld or delayed; provided, however, that Tenant may make
non-structural alterations at a cost of less than $25,000 without Landlord's
prior written consent. In the event that Landlord consents to any proposed
alteration or remodeling of the Premises, Tenant shall not have the obligation
to restore such proposed alteration or remodelling unless such consent
specifies that Landlord will require Tenant to remove the same upon expiration
of the Term. All work performed by or on behalf of Tenant shall be in
accordance with good construction practices, all applicable laws, insurance
requirements, and Landlord's reasonable rules and regulations.
Prior to the commencement of any work by Tenant, Tenant shall
(i) obtain or cause to be obtained public liability and workmen's compensation
insurance to cover every contractor to be employed by Tenant and such
contractor's subcontractors, and shall deliver duplicate originals of all
certificates of such insurance to Landlord for approval; (ii) furnish Landlord
with all necessary permits, licenses, approvals, certificates and
authorizations for prosecution and completion of such work; and (iii) furnish
Landlord with such other documents as may be reasonably requested by Landlord.
Tenant shall have the right to install signage on the Premises provided that
Tenant also pay the cost of all signage and the installation thereof. Landlord
shall have the right, but not the duty, to inspect construction operations in
connection with any work completed or being completed on the Premises.
Tenant shall indemnify and hold Landlord harmless from and
against any and all loss, cost or expense incurred by Landlord as a result of
such alterations or remodelling. In the event any construction or other lien
is filed against the Premises as a result of such alteration or remodelling,
Tenant shall either pay such lien claim or if Tenant elects to contest such
claim, provide a bond, title indemnity or other security reasonably
satisfactory to Landlord protecting Landlord's interest in the Premises.
Nothing herein shall give Landlord any interest in Tenant's
personal property, machinery, equipment, inventory, raw materials, office
furniture, office equipment, trade
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fixtures, cables, data processing equipment or appliances, which shall remain
the property of Tenant.
ARTICLE III
LANDLORD'S RIGHTS
Landlord reserves and shall have the following rights,
exercisable, unless otherwise herein provided, without notice, without
liability to Tenant for damage or injury to person, property or business,
without being deemed an eviction or disturbance in any manner of Tenant's use
or possession of the Premises and without relieving Tenant from its obligation
to pay Rental when due or from any other obligation hereunder:
(a) To display the Premises to prospective tenants upon prior
notice at reasonable hours during the last three (3) months of
the Term or the extended term if the Option to Extend set
forth in Article IX is exercised, to display the Premises to
prospective purchasers, mortgagees or investors upon prior
notice and at reasonable hours at any time during the Term,
and, if the Premises are abandoned during the Term, to
decorate, remodel, repair or otherwise prepare the Premises
for reoccupancy, provided it will not unreasonably disrupt
Tenant's normal business activities;
(b) To have and retain paramount title to the Premises free and
clear of any act of Tenant purporting to burden or encumber it
(excluding Permitted Liens, as hereafter defined); and
(c) To take any and all reasonable measures, including
inspections, repairs and alterations to the Premises as may be
reasonably necessary for the safety, protection or
preservation thereof or Landlord's interest therein.
ARTICLE IV
DAMAGE - CONDEMNATION
4.1. Fire or Casualty. If the Premises or the Building is
damaged by fire or other casualty (regardless of whether the Premises are made
substantially untenantable), then Landlord shall proceed with due diligence,
but subject to the remainder of this Section 4.1, to repair and restore the
Building or the Premises, as the case may be with the insurance proceeds from
the policy referred in Section 6.2 below. In the event the insurance proceeds
are insufficient to restore such damage, Landlord shall have no obligation to
expend sums in excess of such proceeds. Notwithstanding the foregoing, if such
damage renders the Premises untenantable and it is estimated by Landlord in its
reasonable judgment that the time to repair and restore the Premises will
exceed one hundred eighty (180) days or if such damage occurs during the last
twelve (12) months of the Term of this Lease (or, if the Term of this Lease has
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been extended pursuant to Article IX hereof, during the last twelve (12) months
of the Term of this Lease as extended), both Tenant and Landlord shall have the
right to terminate this Lease by delivery to the other of written notice of
such termination within thirty (30) days following the damage, and all Rental
and other charges hereunder for the remainder of the Term shall xxxxx. If
neither Tenant nor Landlord elects to terminate the Lease as hereinabove
provided then the insurance proceeds, if any, shall be utilized by Landlord to
commence repairing the damage and Landlord shall repair the damage so that the
Premises are in substantially the same condition as they were prior to being
damaged. All Rental and other charges shall xxxxx from the date of casualty
until such restoration is completed.
4.2. Condemnation. In the event that the whole of the
Premises shall be taken in any proceeding by any public authority by
condemnation or otherwise, or be acquired for public or quasi-public purposes
(all of which are hereinafter collectively referred to as "Condemnation"), this
Lease shall terminate as of the date of the taking of possession by the
condemning authority and the Rental and other charges payable by Tenant shall
cease as of the date possession of the Premises is delivered to such condemning
authority. In the event any part of the Premises shall be so taken and such
taking substantially interferes with the Tenant's continued use of the Premises
as reasonably determined by Tenant, Tenant may, at Tenant's option terminate
this Lease as of the date of the taking of possession by the condemning
authority and the Rental and other charges payable by Tenant shall cease as of
the date possession of the Premises is delivered to such condemning authority.
If Tenant, pursuant to the preceding sentence, desires to
exercise its option of terminating the Term of this Lease, such termination
shall be effective (without any payment by Landlord to Tenant therefor) by
Tenant giving notice to Landlord provided that such notice shall be given not
more than thirty (30) days subsequent to the date on which Tenant shall have
been deprived of possession of the part so taken as determined as an equitable
basis. If this Lease is not so terminated, then Rental shall xxxxx as to the
portion of the Premises so taken. If the Lease is terminated pursuant to this
paragraph, Rental and other charges payable by Tenant shall cease as of the
date of such taking.
Tenant shall have the right to make a claim to the condemning
authority for relocation expenses, its leasehold value and the unamortized
value of any improvements, alterations or additions to the Premises paid for by
Tenant. Except for any claim awarded to Tenant in accordance with the
preceding sentence, Tenant hereby assigns to Landlord, Tenant's interest in any
condemnation award.
ARTICLE V
LANDLORD'S AND TENANT'S REMEDIES
5.1. Events of Default. Each of the following shall be an "Event of
Default."
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(a) If Tenant fails to pay any installment of Rental, or any other
payment or money to be paid by Tenant under this Lease within
ten (10) days after receipt of notice that the Rental is
unpaid; or
(b) If Tenant fails to observe or perform one or more of the other
terms, conditions, covenants or agreements of this Lease and
such failure shall continue for a period of thirty (30) days
after written notice from Landlord specifying such failure
(unless such failure requires work to be performed, acts to be
done, or conditions to be removed which cannot by their nature
reasonably be performed, done or removed, as the case may be,
within such thirty (30) day period, in which case, no Event of
Default shall be deemed to exist so long as Tenant shall have
commenced the same within such thirty (30) day period and
shall diligently and continuously prosecute the same to
completion); or
(c) If Tenant makes an assignment for the benefit of creditors,
admits its inability to pay its debts or takes any action
towards a general compromise of its debts or a composition
with its creditors; or
(d) If all or any substantial part of the assets of Tenant,
including the leasehold interest hereunder of Tenant, are
attached, seized or become subject to a writ or distress
warrant, are levied upon or come within the possession of any
receiver, trustee, custodian or assignee for the benefit of
creditors and such attachment, seizure, writ, warrant or levy
is not withdrawn or removed within ninety (90) days after
becoming effective; or
(e) If a notice of lien or levy is filed with respect to all or
substantially all of Tenant's assets located on the Premises
by any federal, state, county or municipal body, department,
agency or instrumentality for taxes or debts then owing by
Tenant and such notice is not released or withdrawn within
ninety (90) days of its filing (unless such lien is a
"Permitted Lien" (as hereafter defined)); or
(f) If any involuntary petition or similar pleading is filed in
any court under any section of the Federal Bankruptcy Code
seeking to declare Tenant bankrupt, or seeking a plan of
reorganization for Tenant under Chapter 11 of the Bankruptcy
Code, or a similar proceeding under state law and such
petition or pleading is not withdrawn or denied within ninety
(90) days after its filing, or if any voluntary petition or
similar pleading is filed in any court under any section of
the Federal Bankruptcy Code; or
(g) If Tenant fails to comply with any single obligation under
this Lease more than three (3) times during a calendar year
after having received notice of the previous defaults, such
event shall be deemed to be a default without a cure period;
provided, however, that any such event must be a separate
incident such as the failure to pay Base Rent when due.
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5.2. Termination. Upon the occurrence of an Event of
Default under Section 5.1, Landlord may, at its option, at any time thereafter,
without notice (i) terminate this Lease, or (ii) without terminating this
Lease, forthwith terminate the Tenant's right to possession of the Premises, or
(iii) pursue any other remedy now or hereafter available to Landlord under the
laws of the State of Ohio.
(a) Upon Landlord's termination of this Lease as a result
of the occurrence of an Event of Default, Landlord shall be entitled to recover
from Tenant all damages incurred by Landlord by reason of Tenant's default,
including (i) the unpaid Rental discounted to present value at the rate of
eight percent (8%) per annum, and other charges which had been earned as of the
date of termination; and (ii) any other amount necessary to compensate Landlord
for all the detriment proximately caused by Tenant's failure to perform its
obligations under this Lease, including, but not limited to, any reasonable
costs or expenses incurred by Landlord in maintaining or preserving the
Premises after the occurrence of such Event of Default, the reasonable cost of
recovering possession of the Premises, expenses of reletting, including
necessary renovation or alteration of the Premises, Landlord's reasonable
attorneys' fees incurred in connection therewith, and any reasonable real
estate commission paid or payable.
(b) Upon and after Landlord's termination of this Lease
or Tenant's right to possession of the Premises, Landlord shall make reasonable
efforts to relet the Premises or any part thereof to any person, firm or
corporation other than Tenant for such rent, for such term and upon such
conditions as Landlord shall determine, in Landlord's reasonable discretion,
and Landlord shall not be required to accept any tenant offered by Tenant
(provided that such acceptance shall not be unreasonably refused) or to observe
any instructions given by Tenant covering such reletting. In any such case,
Landlord may incur reasonable expenses for repairs, alterations, improvements,
additions and decoration of or to the Premises to the extent reasonably deemed
necessary or desirable by Landlord for the purpose of reletting the Premises.
All such reasonable expenses, plus all reasonable brokers' commissions and
reasonable attorneys' fees incurred by Landlord in connection with any
reletting of the Premises, shall be paid by Tenant to Landlord upon demand. In
addition, Tenant shall, for the remainder of the Term, reimburse Landlord, on
demand, for any deficiency between Rental and other charges reserved hereunder
and the rent received by Landlord upon reletting the Premises. In the event
Tenant does not pay such sums when due, such sums shall accrue interest as set
forth in Section 13.3(b) below.
5.3. Surrender of Possession. Upon termination of this
Lease, whether by lapse of time or otherwise, or upon any termination of
Tenant's right to possession of the Premises without termination of the Lease,
Tenant shall surrender and vacate the Premises immediately and deliver
possession thereof to Landlord in clean, good and tenantable condition,
ordinary wear and damage by fire or other casualty excepted. Upon any
termination for a thirty (30) day period, Tenant shall be entitled to remove
from the Premises any machinery, equipment, inventory, raw materials, built-in
furniture, computers, data or word processing or duplicating equipment, trade
fixtures, cables or appliances, provided that Tenant shall repair all damage
resulting from such removal and shall restore the Premises to a tenantable
condition.
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5.4. Holding Over. If Tenant retains possession of the
Premises or any part thereof after the termination of this Lease by lapse of
time or otherwise Tenant shall pay to Landlord, Rental at one and one half
times the per diem rate payable for the month immediately preceding said
holding over, computed on a per diem basis, for each day or part thereof that
Tenant thus remains in possession. The provisions of this Section 5.4 shall
not be deemed to limit or exclude any of Landlord's rights of re-entry or any
other right granted to Landlord hereunder or under law.
5.5. Payment of Expenses in Enforcing Obligations. In the
event of any dispute between Landlord and Tenant to enforce any of the
provisions and/or rights hereunder, the unsuccessful party covenants and agrees
to pay to the successful party all costs and expenses, including reasonable
attorneys' fees, incurred therein by the successful party, which costs and
expenses shall be included in and as a part of a judgment if litigation is
involved. If Landlord, without fault on its part, shall be made a party to any
litigation instituted by or against the Tenant by reason of this Lease, then
Landlord shall be entitled to receive from the Tenant upon demand all costs,
expenses and reasonable attorneys' fees incurred by Landlord in or in
connection with such litigation. If Tenant, without fault on its part, shall
be made a party to any litigation instituted by or against Landlord by reason
of this Lease, then Tenant shall be entitled to receive from the Landlord upon
demand all costs, expenses and reasonable attorneys' fees incurred by Tenant in
or in connection with such litigation.
5.6. Landlord's Performance of Tenant's Obligations. If
Tenant shall default in the performance of any of its obligations hereunder and
such default shall continue after the expiration of any notice or grace period
herein provided, Landlord may perform such obligation for the account and
expense of Tenant upon thirty (30) days written notice except in cases of
emergency, and Tenant shall reimburse Landlord therefor upon demand plus
Landlord's reasonable costs and expenses, including attorneys' fees.
5.7. Non-Waiver. No waiver of any agreement or condition
expressed in this Lease shall be implied by any neglect of Landlord or Tenant
to enforce any remedy on account of the violation of such agreement or
condition if such violation be continued or repeated subsequently, and no
express waiver shall affect any agreement or condition other than the one
specified in such waiver and that one only for the time and in the manner
specifically stated. No receipt of monies by Landlord from Tenant after the
termination in any way of the Term or of Tenant's right of possession
hereunder, or after the giving of any notice, shall reinstate, continue or
extend the Term or affect any notice given to Tenant prior to the receipt of
such monies, it being agreed that after the service or notice or the
commencement of a suit or after final judgment for possession of the Premises
Landlord may receive and collect any Rental due, and the payment of said Rental
shall not waive or affect said notice, suit or judgment.
5.8. Rights and Remedies Cumulative. All rights and
remedies of Landlord and Tenant under this Article and elsewhere in this Lease
shall be distinct, separate and cumulative and none shall exclude any other
right or remedy of Landlord or Tenant as set forth in this
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Lease or allowed by law. Landlord's and Tenant's obligations under this
Article shall survive the expiration of the Term.
5.9. Tenant's Performance of Landlord's Obligations. If
Landlord shall default in the performance of any of its obligations hereunder
and such default shall continue after the expiration of any notice or grace
period herein provided, Tenant may perform such obligation for the account and
expense of Landlord upon thirty (30) days written notice except in cases of
emergency, and Landlord shall reimburse Tenant therefor upon demand, plus
Tenant's reasonable costs and expenses, including attorneys' fees.
ARTICLE VI
WAIVER OF CLAIMS AND INDEMNIFICATION
AND RIGHTS OF RECOVERY ON INSURANCE
6.1. Waiver of Claims and Indemnity. Tenant hereby
releases and waives all claims against Landlord, agents, employees and servants
for injury or damage to person, property or business sustained in or about the
Property by Tenant, its agents, employees or servants, which injury or damage
results from any act, neglect, occurrence or conditions in or about the
Property, except to the extent that such injury or damage is caused by the
negligence or willful or wanton act or omission by Landlord, or its agents,
employees or servants. To the extent any of the foregoing is covered by
insurance, Landlord or Tenant, as the case may be, shall have but one (1)
recovery, but any such recovery shall not be limited to the amount of such
insurance.
Tenant hereby agrees to indemnify and hold Landlord, its
agents, employees and servants harmless against any and all claims, damage,
demands, costs and expenses of every kind and nature, including reasonable
attorneys' fees for the defense thereof, arising from Tenant's occupancy of the
Property or from any breach or default on the part of Tenant in the performance
of any agreement of Tenant to be performed pursuant to the terms of this Lease,
or from any act, omission or negligence of the Tenant, its employees, servants
and agents, subtenants and/or assignees in or about the Property during the
term of the Lease. To the extent any of the foregoing is covered by insurance,
Landlord shall have but one (1) recovery. In case any such proceeding is
brought against Landlord, its agents, employees or servants, Tenant covenants
to defend such proceeding at its sole cost and expense by legal counsel
reasonably satisfactory to Landlord.
Landlord hereby agrees to indemnify and hold Tenant, its
agents, employees and servants harmless against any and all claims, damage,
demands, costs and expenses of every kind and nature, including reasonable
attorneys' fees for the defense thereof, arising from any breach or default on
the part of Landlord in the performance of any agreement of Landlord to be
performed pursuant to the terms of this Lease, or from any act, omission or
negligence of Landlord, its employees, servants and agents in or about the
Property. To the extent any of the foregoing is covered by insurance, Tenant
shall have but one (1) recovery. In case any such
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proceeding is brought against Tenant, its agents, employees or servants,
Landlord covenants to defend such proceeding at its sole cost and expense by
legal counsel reasonably satisfactory to Tenant.
In the event of any conflict or inconsistency between the
indemnification provisions hereof and those contained in the Stock Purchase
Agreement, those contained in the Stock Purchase Agreement shall govern.
6.2. Insurance Coverage. Tenant, at Tenant's sole cost
and expense, shall obtain and maintain, for the Term of this Lease, as
extended, insurance policies in form and content, and issued by an insurer,
reasonably acceptable to Landlord, providing the following coverage: (i) all
perils included in the classification "fire and extended coverage" under
insurance industry practices in effect from time to time in the jurisdiction in
which the Building is located covering the Building and all fixtures and
property located therein, including without limitation, Tenant's fixtures,
machinery, equipment, furnishings, merchandise, alterations, improvements and
other contents in the Premises, for 100% of the full replacement value of said
Building and items; and (ii) comprehensive generally liability insurance
(including contractual liability) naming Landlord, and any mortgagee, as
additional insureds, which policy is to be in the minimum amount of Two Million
Dollars ($2,000,000.00) with respect to any one person, in the minimum amount
of Three Million Dollars ($3,000,000.00) with respect to any one accident, and
in the minimum amount of Five Hundred Thousand Dollars ($500,000.00) with
respect to personal property damage. Each policy described in this Section 6.2
shall name Landlord and any mortgagee of the Premises as additional insureds
and as loss payees and shall contain a provision that it shall (i) not be
cancelable and that it shall continue in full force and effect unless Landlord
has received at least thirty (30) days prior written notice of such
cancellation or termination, and (ii) not be materially changed without thirty
(30) days prior notice to Landlord. Insurance coverage under umbrella policies
shall be acceptable. Landlord shall be named as loss payee on the casualty
policy with respect to the Building.
6.3. Rights of Recovery on Insurance. Landlord and Tenant
agree to have all fire and extended coverage and material damage insurance
which may be carried with respect to the Building, the Premises or to the
property located therein endorsed with a clause substantially as follows: "This
insurance shall not be invalidated should the insured waive in writing prior to
a loss any or all rights of recovery against any party for loss occurring to
the property described herein." Landlord and Tenant hereby waive all claims
for recovery from each other for any loss or damage to them or to any of their
property insured under valid and collectible insurance policies to the extent
of the proceeds collected under such insurance policies.
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ARTICLE VII
TITLE MATTERS
7.1. Subordination of Lease. This Lease and the rights of
Tenant hereunder shall become subject and subordinate at all times to the lien
of the mortgage or deed of trust existing against the Property referred to on
Exhibit C attached hereto and made a part hereof, and to all advances made or
hereafter to be made upon the security thereof, and to all future mortgages or
deeds of trust made to an institutional lender such as a bank, savings and
loan, or insurance company; provided that the mortgagee or trustee under any
such existing and future mortgage or deed of trust provides a non-disturbance
agreement reasonably satisfactory to Tenant and which provides that such
mortgagee or trustee recognizes all of Tenant's rights hereunder, including but
not limited to Tenant's options to expand, purchase and extend the Term of this
Lease. In the event any proceedings are brought to foreclose any mortgage or
deed of trust, Tenant will attorn to the purchaser upon any foreclosure sale
and recognize such purchaser as the landlord under this Lease. Tenant agrees
to execute and deliver at any time any instrument to further evidence such
attornment as may be reasonably requested in writing by any holder of such
mortgage, or the trustee under any such deed of trust.
7.2. Estoppel Certificate. Landlord and Tenant agree that
from time to time upon not less than fifteen (15) business days prior request
by the other, the non-requesting party, or its duly authorized representative
having knowledge of the following facts, will deliver to the requesting party,
or to such person as the requesting party may designate, a statement in writing
certifying (i) that this Lease is unmodified and in full force and effect, or,
if there have been modifications, that the Lease as modified is in full force
and effect; (ii) the dates to which the Rental and other charges have been
paid; (iii) that to the best of the non-requesting party's knowledge, the
requesting party is not in default under any provision of this Lease, or, if in
default, the nature thereof in detail; and (iv) such other provisions
reasonably requested by the requesting party.
7.3. Assignment and Subletting. Except as otherwise
permitted in Section 7.4 and this Section 7.3, Tenant shall not without
Landlord's prior written consent, which consent shall not be unreasonably
withheld or delayed, (i) assign or convey this Lease or any interest under this
Lease, provided, however, Tenant may provide a leasehold mortgage to an
institutional lender with assets in excess of $500,000,000; (ii) sublease all
or any portion of the Premises; or (iii) permit the use or occupancy of the
Premises by any party other than Tenant, its agents, employees, guests,
invitees and licensees.
Notwithstanding the limitations set forth above, Tenant may
assign this Lease or sublet all or any portion of the Tenant Premises without
Landlord's consent:
(a) To a corporation controlling, controlled by or under common
control with Tenant, (hereinafter an "Affiliated
Corporation"); provided that any such assignment or sublease
shall be subject to the terms and conditions of this Lease.
For purposes hereof, "control" shall mean the ownership,
either directly or
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indirectly, of fifty percent (50%) or more of all shares
entitled to vote of such other corporation; and
(b) To the surviving corporation in a merger, reorganization or
consolidation or other corporate action involving Tenant
provided that any such assignment or sublease shall be subject
to the terms and conditions of this Lease.
No assignment of this Lease or sublease of the Premises
pursuant to the provisions of this Section 7.3 shall be effective unless and
until the assignee or sublessee shall have executed an appropriate instrument,
in form reasonably satisfactory to Landlord, assuming all of the obligations of
Tenant hereunder to the extent of the Premises assigned or subleased, and shall
have delivered a copy thereof, or an executed counterpart thereof, to Landlord.
In the event of any permitted assignment of this Lease or subletting of the
Premises, Tenant shall remain fully liable for all of the obligations of Tenant
under this Lease, except for additional obligations entered into as a result of
a lease amendment between Landlord and any assignee.
7.4. Covenant Against Mechanic's Liens. Tenant covenants
and agrees not to suffer or permit any lien of mechanics or materialmen to be
placed against the Property or any part thereof arising from work done by or on
behalf of Tenant. If any such lien shall attach to the Property or any part
thereof, Tenant shall either (i) pay off and remove the same or (ii) if Tenant
desires to contest such lien in a court of competent jurisdiction, Tenant shall
either (1) file with Landlord a bond or other security in an amount and with an
independent surety, reasonably satisfactory to Landlord or (2) maintain a title
indemnity with appropriate security to protect against an exception to title
with a title insurance company reasonably designated by Landlord and in such
amount and on such terms as are reasonably satisfactory to Landlord and such
title insurance company, in which event such a lien shall be a "Permitted
Lien". Other than a Permitted Lien, Tenant has no authority or power to cause
or permit any lien or encumbrance of any kind whatsoever, whether created by
act of Tenant, operation of law or otherwise, to attach to or be placed upon
the Property or any part thereof. Any and all liens and encumbrances created
by Tenant shall attach only to Tenant's interest in the Premises.
7.5. Covenant of Quiet Enjoyment. Landlord covenants,
represents and warrants that it has full power and proper authority to execute
this Lease and to grant the rights provided to Tenant hereunder and further
covenants that, upon paying the Rental and keeping the agreements of this Lease
on its part to be kept and performed, Tenant shall have peaceful and quiet
possession of the Premises and full enjoyment of all of its rights herein
granted for the Term of this Lease (or, if the Term of this Lease has been
extended pursuant to Article IX hereof, for the Term of this Lease as
extended).
7.6. Permitted Title Exceptions. The leasehold interest
conveyed hereby shall be subject to the following exceptions (the "Permitted
Exceptions"):
a. Taxes for the year 1996 and subsequent years, not yet
due and payable;
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b. Acts done or suffered by Tenant, pursuant to this
Lease or otherwise;
c. Zoning laws and ordinances, provided that Tenant's
use of the Premises complies with such laws and ordinances;
d. Mortgage or deed of trust described in Section 7.1
above; and
e. Easements for public utilities which do not or will
not underlie the improvements as built, provided same are recorded in the
public records of Xxxxx County, Ohio.
Landlord agrees that Landlord shall not further encumber the
Property without Tenant's prior written consent except with respect to
Landlord's right to mortgage the Property so long as such financing complies
with the requirements set forth in Section 7.1 above. Tenant shall not be
responsible for correcting any violation of the above Permitted Exceptions if
such violation was not caused by Tenant or if it existed on or before the
Commencement Date. Landlord shall not further encumber title to the Property.
ARTICLE VIII
TRANSFER OF LANDLORD'S INTEREST IN BUILDING AND LEASE
In the event of any sale or other transfer of the Property
effective after the Commencement Date of this Lease, Landlord and the seller or
transferor shall be entirely freed and relieved of all agreements and
obligations of Landlord hereunder accruing after the date of such sale or
transfer, provided, such purchaser or transferee shall have assumed and agreed
to perform all agreements and obligations of the Landlord hereunder accruing
from and after the date of such sale or transfer and shall take title subject
to this Lease. Subject to the provisions of the preceding sentence, Tenant
hereby consents to any future assignment by Landlord of any part or all of its
rights under this Lease.
ARTICLE IX
TENANT'S OPTION TO EXTEND LEASE
9.1. Option. Tenant shall have the right and option to
extend the Term of this Lease for two additional consecutive five (5) year
periods (the "Option Periods") commencing immediately following the Termination
Date provided that (i) Tenant sends notice of its election to extend the Term
of the Lease to Landlord not less than one hundred eighty (180) days prior to
the end of the Term of the Lease or the extended Term; (ii) at the time Tenant
sends such notice, Tenant is not then in default in the performance of any
term, condition, covenant or agreement of this Lease as to which notice of
default has been given to Tenant unless such default cannot, with due
diligence, be cured, prior to the last date on which Tenant is entitled to
exercise such option and Tenant has proceeded promptly and with due diligence
after service of the notice of default to cure such default; and (iii) at the
date of commencement of the Option
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Period, or the Second Option Period Tenant is not in default in the performance
of any term, condition, covenant or agreement of this Lease as to which notice
of default has been given to Tenant or, if notice of default has been given,
Tenant has proceeded promptly and with due diligence after service of the
notice of default to cure such default, and no event is occurring which, with
the passage of time or the giving of notice, or both, would constitute a
default hereunder.
9.2. Rent During Option Years.
(a) The Base Rent due and payable during the Option Periods
shall be agreed to by the parties within thirty (30) days of Tenant's notice to
Landlord, or if the parties cannot agree within the aforesaid thirty (30) day
period, in accordance with Section 9.2(b). All the terms and conditions of
this Lease shall be applicable to such extended terms except (i) for those
matters that have expired by their own terms or have been performed and (ii)
the Base Rent for such extended terms shall be as set forth below. Such Lease
shall be deemed extended without any further lease or instrument.
(b) If Landlord and Tenant shall fail to agree upon the rent
within thirty (30) days of the exercise of Tenant's option to extend the Lease
term, then the Base Rent for the option periods shall be adjusted by 50% of the
increase in the Index now known as "United States Bureau of Labor Statistics,
Consumer Price Index, for all Urban Consumers (the "CPU-U"), All Items for
Atlanta Average (1967 = 100)" hereinafter referred to as the "Index", provided,
that the amount payable by Tenant under this Lease as Base Rent shall not be
less than the annual Base Rent payable for the preceding lease year. Such
adjustment shall be accomplished by multiplying the aforementioned Base Rent by
one half of the increase in the Index from the most recently published monthly
Index preceding the first day of the Option Period for which the adjustment is
made over the corresponding monthly Index for the month of the Commencement
Date of this Lease. If such Index shall be discontinued with no successor or
comparable successor Index, the parties shall attempt to agree upon a
substitute or comparable successor Index, but if the parties are unable to
agree upon a substitute formula, then the manner in which the Base Rent shall
be adjusted to take into account changes in the cost of living shall be
determined by arbitration in accordance with the rules of the American
Arbitration Association then prevailing.
ARTICLE X
ENVIRONMENTAL MATTERS
10.1. Environmental Matters. Except as described in the
environmental reports all delivered by Landlord to Tenant and referred to on
Exhibit D attached hereto and made a part hereof, prior to the Commencement
Date, (i) no Hazardous Materials have been located on the Property or have been
released in the environment, or discharged, placed or disposed of at, on or
under the Property; (ii) no underground storage tanks have been located on the
Property; (iii)
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the Property has never been used as a dump for waste material; and (iv) the
Property and its prior uses comply with and at all times have complied with,
all applicable governmental laws, regulations or requirements relating to
environmental and occupational, health and safety matters and Hazardous
Materials.
The term "Hazardous Materials" shall mean any substance,
material, waste, gas or particulate matter which is regulated by any
local governmental authority, the State of Ohio, or the United States
Government, including, but not limited to, any material or substance which is
(i) defined as a "hazardous waste," "hazardous material," "hazardous
substance," "extremely hazardous waste," or "restricted hazardous waste" under
any provision of Ohio law, (ii) petroleum, (iii) asbestos, (iv) polychlorinated
biphenyl, (v) radioactive material, (vi) designated as a "hazardous substance"
pursuant to Section 311 of the Clean Water Act, 33 U.S.C. Section 1251 et seq.
(33 U.S.C. Section 1317), (vii) defined as a "hazardous waste" pursuant to
Section 1004 of the Resource Conservation and Recovery Act 42 U.S.C. Section
6901 et seq. (42 U.S.C. Section 6903), or (viii) defined as a "hazardous
substance" pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. Section 9601 et seq. (42 U.S.C
Section 9601). The term "Environmental Laws" shall mean all statutes
specifically described in the foregoing sentence and all federal, state and
local environmental health and safety statutes, ordinances, codes, rules,
regulations, orders and decrees regulating, relating to or imposing liability
or standards concerning or in connection with Hazardous Materials.
Additionally, but not in lieu of Landlord's affirmative
undertakings set forth herein, Landlord agrees to indemnify, defend and hold
harmless Tenant and its successors and assigns hereunder in accordance with the
environmental indemnities set forth in Section 10.2 of the Stock Purchase
Agreement for the full term of this Lease.
ARTICLE XI
OPTION TO PURCHASE
11.1. Option. (a) Tenant shall have the right and option
to purchase the Property (the "Purchase Option") at a purchase price equal to
Fair Market Value, disregarding the fact that the Property is encumbered with
this Lease (as hereinafter defined), which Purchase Option shall be exercisable
on the earlier of (i) the last day of the fifth year of the Term hereof, and
(ii) the date on which the environmental condition of the Property is
acceptable to Tenant, and which Purchase Option shall be exercisable at any
time during each year thereafter during the Term hereof on any extended Term,
if applicable. In the event Tenant elects to exercise its Purchase Option,
Tenant shall so notify Landlord of its election on or before the date which is
ninety (90) days prior to the date on which such purchase is to occur (the
"Closing Date"). The terms of the sale by Landlord and the purchase by Tenant
of the Property shall be in accordance with the provisions of Exhibit E
attached hereto and made a part hereof.
(b) Determination of Fair Market Value. "Fair Market Value"
as used herein shall be determined as follows: If Landlord and Tenant shall
fail to agree upon the Fair Market Value within thirty (30) days of the
exercise of Tenant's option to purchase the Property, then
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Landlord and Tenant each shall give notice to the other setting forth the name
and address of an arbitrator designated by the party giving such notice. If
either party shall fail to give notice of such designation within forty-five
(45) days after such thirty (30) day period, then the arbitrator chosen shall
make the determination alone. If two arbitrators shall have been designated,
such two arbitrators shall, within thirty (30) days, make their determination
of Fair Market Value in writing and given notice thereof to each other and to
Landlord and Tenant. Such two arbitrators shall have thirty (30) days after
the receipt of notice of each other's determination to confer with each other
and attempt to reach a determination as to Fair Market Value. If such two
arbitrators shall concur as to the determination of the Fair Market Value, such
concurrence shall be final and binding upon Landlord and Tenant. If the Fair
Market Value of such two arbitrators are within ten percent (10%) of each
other, the Fair Market Value during the option period shall be the average of
the two arbitrators' Fair Market Values. If such two arbitrators shall fail to
concur and their respective Fair Market Value are more than ten percent (10%)
different, then such two arbitrators shall immediately designate a third
arbitrator, who shall satisfy the requirements set forth herein for an
arbitrator and shall also be an American Arbitration Association arbitrator.
If the two arbitrators shall fail to agree upon the designation of such third
arbitrator within ten (10) days of such notice, then either party may apply to
the American Arbitration Association or any successor thereto having
jurisdiction for the designation of such arbitrator. All arbitrators shall be
non-affiliated industrial real estate appraisers, who shall have at least ten
(10) years experience in the business of appraising industrial real estate in
the State of Ohio and who shall have not worked for either party hereto or for
an affiliate or owner of either party hereto for ten (10) years. The third
arbitrator shall conduct such hearings and investigations as he may deem
appropriate, and shall, within thirty (30) days of the designation of the third
arbitrator, choose one of the determinations of the two arbitrators originally
selected by the parties and that choice by the third arbitrator shall be
binding upon Landlord and Tenant. Each party shall pay its own counsel fees
and expenses, if any, in connection with any arbitration under this Section 11
including the expenses and fees of any arbitrator selected by it and the
parties shall share equally all other expenses and fees of any such
arbitration.
ARTICLE XII
OPTION TO EXPAND
12.1. Expansion Option. Tenant shall have the option
to be exercised at any time during the Term to require Landlord to finance the
expansion of the improvements on the Property. Upon exercise of such option an
officer of Tenant and Xxxxxx Xxxxx, Xxxxxx Xxxxxxx, or their successors and
assigns, shall negotiate in good faith and on a reasonable basis for a period
of thirty (30) days, an amendment to this Lease which provides for a lease term
and rental sufficient to allow financing of such expansion. In the event
Landlord and Tenant are unable to agree upon a lease amendment after such
thirty (30) day period, either party shall have the right to submit the matter
to arbitration which arbitration shall be conducted in accordance with the
arbitration provisions of the Stock Purchase Agreement.
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ARTICLE XIII
GENERAL
13.1. Notices. All notices, waivers, demands, requests or
other communications required or permitted hereunder shall, unless otherwise
expressly provided, be in writing and be deemed to have been properly given,
served and received (i) if delivered by messenger, when delivered, (ii) if
mailed, on the third (3rd) business day after deposit in the United States
Mail, certified or registered, postage prepaid, return receipt requested, (iii)
if telexed, telegraphed or telecopied, three (3) hours after being dispatched
by telex, telegram or telecopy, if such third (3rd) hour falls on a business
day within the hours of 8:00 a.m. through 5:00 p.m. of the time in effect at
the place of receipt, or at 8:00 a.m. on the next business day thereafter if
such third (3rd) hour is later than 5:00 p.m., or (iv) if delivered by
reputable overnight express courier, freight prepaid, the next business day
after delivery to such courier; in every case addressed to the party to be
notified as follows:
If to Landlord:
CP Alliance, Inc.
00000 Xxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx
and to:
Xxxxxx Xxxxxxx
000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
With a copy to:
Maddin, Hauses, Wartell, Roth, Xxxxxx & Xxxxxx, P.C.
28400 Northwestern Highway
Third Floor - Essex Centre
Southfield, Michigan 48034-8004
Attention: Xxxxxxx Xxxx
If to Tenant:
United States Can Company
000 Xxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attn: Vice President of Materials & Logistics
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With a copy to:
Xxxx & Xxxxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
(000) 000-0000
Attn: Xxxxxxx X. Xxxxx
or at such other address as the party to receive said notice may theretofore
have furnished by written notice as set forth above.
13.2. Brokers. Tenant and Landlord represent and warrant to
each other that they have not dealt with any broker or finder in connection
with this Lease, and to their knowledge, no other broker or finder initiated or
participated in the negotiation of this Lease, submitted or showed the Premises
to Tenant or is entitled to any commission in connection with this Lease.
Tenant and Landlord hereby indemnify and hold each other harmless from and
against any and all claims, damages and expenses based upon or arising out of
any claim by any person with whom it is ultimately determined that Landlord or
Tenant has dealt in violation of the foregoing representations and warranties
of any other real estate broker for commissions resulting from a breach of the
foregoing representations and warranties.
13.3. General.
(a) All rights and remedies of Landlord or Tenant, as the
case may be, under this Lease shall be cumulative and none shall exclude any
other rights and remedies allowed by laws.
(b) All installments of Rental and any other sums which
are unpaid when due and remain unpaid for ten (10) days after notice, shall
bear interest at a rate of ten percent (10%) per annum from the date due until
paid.
(c) Each of the provisions of this Lease shall extend to
and shall, as the case may require, bind or inure to the benefit, not only of
Landlord and of Tenant, but also of their respective heirs, legal
representatives, successors and assigns, subject to Section 7.4. hereof.
(d) All of the representations, agreements and
obligations of Landlord and Tenant are contained herein, and no modification,
waiver or amendment of this Lease or of any of its conditions or provisions
shall be binding upon the Landlord or Tenant unless in writing signed by such
party.
(e) No receipt of money by Landlord from Tenant after the
termination of this Lease or after the service of any notice or after the
commencement of any suit, or after final
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judgment for possession of the Premises shall reinstate, continue or extend the
Term of this Lease or affect any such notice, demand or suit.
(f) The officers of Tenant and Landlord executing this
Lease each represent that he has been duly authorized by his respective Boards
of Directors to execute this Lease in this form and containing the aforesaid
covenants.
(g) The headings or captions of Sections are for
convenience only, are not part of this Lease, and shall not affect the
interpretation of this Lease.
(h) This lease may be executed in any number of
counterparts, all of which when put together shall be deemed an original.
(i) This Lease shall be governed by and construed in
accordance with the laws of the State of Ohio. If any provision or part of
this Lease or the application thereof to any persons or circumstances shall, to
any extent, be invalid, illegal or unenforceable, the remainder of this Lease,
or the application of such provision or part to persons or circumstances other
than those as to which it is held invalid, illegal or unenforceable, shall not
be affected thereby, and each term and provision of this Lease shall be valid
and enforced to the fullest extent permitted by law.
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IN WITNESS WHEREOF, Landlord and Tenant have caused this Agreement for
Building Lease to be executed as of the first day written above.
LANDLORD:
CP ALLIANCE, INC., a Michigan corporation
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman & CEO
TENANT:
UNITED STATES CAN COMPANY, a Delaware
corporation
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President
Chief Financial Officer
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EXHIBIT A
LEGAL DESCRIPTION
24
EXHIBIT B
BASE RENT
Tenant shall pay the monthly installments of Base Rent in advance on
the first day of each calendar month during the Term subject to the following
schedule:
Time Period Monthly Rent
----------- ------------
August 1, 1996 through July 31, 2001 $5,400.00
25
EXHIBIT C
LANDLORD'S EXISTING MORTGAGE
None.
26
EXHIBIT D
ENVIRONMENTAL REPORTS
Environmental Report dated July 26, 1996, prepared by Environmental Resources
Management, Inc.
27
EXHIBIT E
TERMS OF AGREEMENT OF SALE
Upon Tenant's exercise of the Option to Purchase in conformity with
Article XI of the attached Lease, without further action of the Landlord or
Tenant, there shall be a Binding Agreement of Sale for the Property between
Landlord, as Seller, and Tenant, as Buyer, upon the following terms and
conditions:
PROPERTY AND TERMS
1. Seller hereby agrees to sell and convey to Buyer, who hereby
agrees to purchase ALL THAT CERTAIN lot or piece of ground, more particularly
described in Exhibit "A" to the Lease attached hereto and made a part hereof
and known by street address of 00000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxx, together
with all improvements thereon, including ______ (__) building(s) with
approximately 52,000 square feet of interior area, together with all fixtures
owned by Seller and located therein ("Property"), for the Purchase Price set
forth in Article XI of the attached Lease in cash, wire transfer on other
immediately available funds.
TITLE
2. At Closing, title to the Property shall convey by general
warranty deed good and marketable and such as will be insured in the amount of
the purchase price by title insurance company selected by Buyer (the "Title
Company") and reasonably acceptable to the Seller, at Seller's expense, free
and clear of all mortgages, liens, encumbrances and easements, excepting only
those listed on Exhibit 1 of this Agreement.
In the event the Seller is unable to give a good and marketable title
and such as will be insured by the Title Company, subject as aforesaid, Buyer
shall have the option of taking such title as the Seller can give by deducting
from the Purchase Price liens of a definite or ascertainable amount or of
terminating this Agreement of Sale upon written notice to Seller; and in the
latter event there shall be no further liability or obligation on either of the
parties hereto and this Agreement of Sale shall become null and void.
Within thirty (30) days of exercise of this option, Purchaser shall
obtain a then current survey of the Property certified to Buyer, the Title
Company and Buyer's lender, as having been made in accordance with the Minimum
Land Survey Standard Detail Requirements for Land Title Surveys jointly
established and adopted by ALTA and ACSM (the "Survey"). The Survey shall show
that the Property is not in a flood plain. Within thirty (30) days following
receipt of the Survey, Buyer shall notify Seller of any discrepancies or
conflicts in boundary lines, shortages in area, and encroachments as may be
shown by the Survey. Seller shall have twenty-five (25) days following receipt
of Buyer's notice to advise Buyer if Seller can remove or clear the discrepancy
or conflict. If Seller is unable to remove or clear such discrepancies in
title, Buyer shall have the option of either taking such title as Seller can
give without abatement of
28
price or of terminating this Agreement of Sale upon written notice to Seller.
In the latter event, there shall be no further liability or obligation on
either of the parties hereto and this Agreement of Sale shall become null and
void. Notwithstanding anything to the contrary contained herein, Seller shall
not further encumber title to the Property without Buyer's consent.
Seller shall provide Buyer with a title insurance policy at closing
insuring Buyer's interest as the owner of the Property from a title insurance
company designated by Buyer (the "Title Insurer") in the amount of the Purchase
Price with extended coverage over the general exceptions, a 3.1 zoning
endorsement, amended to include parking and approving Buyer's current use of
the Property and such other endorsements reasonably requested by Buyer. The
cost of the extended coverage shall be paid for by Buyer. Within fifteen (15)
days of the exercise of the option to purchase, Buyer shall order a title
commitment. At closing, Purchaser shall deduct from the proceeds of sale the
cost for all survey, title charges and title insurance.
CONDITION OF PROPERTY
3. Except for the provisions of Section 7, Buyer shall accept the
Property in their "as-is" condition on the date of Closing, provided that if
Buyer determines at any time prior to Closing that the Property or the lands in
the vicinity of the Property are not free of toxic and hazardous substances and
materials, Buyer shall have the option of terminating this Agreement upon
notice to Seller.
ASSESSMENT
4. Excepting notices previously delivered by Seller to Buyer
during the term of the Lease, Seller covenants and represents as of the
Exercise Date that no notice by any governmental agency or body regarding the
Property, including, without limitation, notices pertaining to Environmental
Laws and other governmental statutes, rules, regulations or directives
affecting the Property, have been served upon Seller or anyone on the Seller's
behalf.
POSSESSION
5. Possession is to be delivered and physical possession at day
and time of Closing.
TAXES AND ADJUSTMENTS
6. All apportionable debits and credits, including assessments,
taxes (subject to Buyer's obligation to pay taxes pursuant to the Lease) and
sewer rent (if any) for the current term shall be calculated as levied and
pro-rated as of the date of Closing. All real estate transfer taxes imposed by
a governmental authority shall be paid for by Seller.
ENVIRONMENTAL INDEMNITY
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7. Except as described in the environmental reports all delivered
by Seller to Buyer and referred to on Exhibit D to the Lease and made a part
thereof, prior to the Commencement Date (as defined in the Lease), (i) no
Hazardous Materials have been located on the Property or have been released in
the environment, or discharged, placed or disposed of at, on or under the
Property; (ii) no underground storage tanks have been located on the Property;
(iii) the Property has never been used as a dump for waste material; and (iv)
the Property and its prior uses comply with and at all times have complied
with, all applicable governmental laws, regulations or requirements relating to
environmental and occupational, health and safety matters and Hazardous
Materials.
The term "Hazardous Materials" shall mean any substance,
material, waste, gas or particulate matter which is regulated by any
local governmental authority, the State of Ohio, or the United States
Government, including, but not limited to, any material or substance
which is (i) defined as a "hazardous waste," "hazardous material,"
"hazardous substance," "extremely hazardous waste," or "restricted
hazardous waste" under any provision of Ohio law, (ii) petroleum,
(iii) asbestos, (iv) polychlorinated biphenyl, (v) radioactive
material, (vi) designated as a "hazardous substance" pursuant to
Section 311 of the Clean Water Act, 33 U.S.C. Section 1251 et seq. (33
U.S.C. Section 1317), (vii) defined as a "hazardous waste" pursuant
to Section 1004 of the Resource Conservation and Recovery Act 42
U.S.C. Section 6901 et seq. (42 U.S.C. Section 6903), or (viii)
defined as a "hazardous substance" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation, and Liability Act,
42 U.S.C. Section 9601 et seq. (42 U.S.C Section 9601). The term
"Environmental Laws" shall mean all statutes specifically described in
the foregoing sentence and all federal, state and local environmental
health and safety statutes, ordinances, codes, rules, regulations,
orders and decrees regulating, relating to or imposing liability or
standards concerning or in connection with Hazardous Materials.
Additionally, but not in lieu of Seller's affirmative
undertakings set forth herein, Seller agrees to indemnity, defend and hold
harmless Buyer and its grantees in accordance with the environmental
indemnities set forth in Section 10.2 of the Stock Purchase Agreement. The
indemnity and the obligation to defend and hold Buyer harmless set forth herein
shall survive for a period of four years from the closing date of the Stock
Purchase Agreement.
RISK OF LOSS
8. Any loss or damage to the Property caused by fire, or loss
commonly covered by the extended coverage endorsement of a reputable insurance
companies between the Exercise Date and the date of Closing shall not in any
way void or impair the conditions and obligations thereof, except that should
the Property suffer loss or damage due to fire or other casualties, not
repaired or replaced prior to Closing, Buyer shall have the option of
terminating this Agreement upon notice to Seller; provided, however, that
Seller shall have the right to reconstruct improvements so long as such
reconstruction is completed within one hundred eighty (180) days of the date of
casualty. In such event, there shall be no further liability or obligation on
either of the parties hereto and this Agreement shall become null and void.
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WHOLE AGREEMENT
9. This Agreement contains the whole Agreement between the Seller
and the Buyer and there are no other terms, obligations, covenants,
representations, statements or conditions, oral or otherwise of any kind
whatsoever concerning this sale. Any changes or additions to this Agreement
must be made in writing and executed by the parties hereto.
ASSIGNMENT
10. This Agreement shall be binding upon the respective successors
and, to the extent assignable on the assigns of the parties hereto. This
Agreement is to be construed and interpreted in accordance with the laws of the
State of Ohio.
BROKERS
11. Buyer and Seller each represent and warrant to the other that
the transactions contemplated hereby have been carried out by Buyer directly
with Seller in such manner as not to give rise to any valid claims against any
of the parties hereto for a brokerage commission, finders fee, or other like
payment. Buyer and Seller each shall indemnify and hold the other harmless
from any breach of the above stated representation and warranty.
TIME OF ESSENCE
12. The date for Closing and all other dates referred to for the
performance of any of the obligations of this Agreement are hereby agreed to be
of the essence of this Agreement.
DESCRIPTIVE HEADING
13. The descriptive headings used here are for convenience only
and they are not intended to indicate the matter in the sections which follow
them. Accordingly, they shall have no effect whatsoever in determining the
rights or obligations of the parties.
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31
EXHIBIT 1
LIST OF ENCUMBRANCE
Real Estate taxes not yet due and payable.
32
AGREEMENT
FOR
BUILDING LEASE
Dated as of August 1, 1996
By and Between
CP ALLIANCE, INC.,
a Delaware corporation
Landlord,
and
UNITED STATES CAN COMPANY,
a Delaware corporation
Tenant
================================================================================
TABLE OF CONTENTS
ARTICLE NO. PAGE NO.
---------- -------
ARTICLE I RENTAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II TENANT'S ACCEPTANCE AND USE OF PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE III LANDLORD'S RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE IV DAMAGE - CONDEMNATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE V LANDLORD'S AND TENANT'S REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE VI WAIVER OF CLAIMS AND INDEMNIFICATION AND RIGHTS OF RECOVERY ON INSURANCE . . . . . . . 10
ARTICLE VII TITLE MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
33
ARTICLE VIII TRANSFER OF LANDLORD'S INTEREST IN BUILDING AND LEASE . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE IX TENANT'S OPTION TO EXTEND LEASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE X ENVIRONMENTAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE XI OPTION TO PURCHASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE XII OPTION TO EXPAND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE XIII GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SCHEDULE OF EXHIBITS
Exhibit A Legal Description
Exhibit B Base Rent
Exhibit C Landlord's Existing Mortgage
Exhibit D Environmental Report
Exhibit E Terms of Agreement of Sale
