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EXHIBIT 10.54
L E A S E
This Lease is made and entered into as of this 11th day of
September, 1996, by and between XXXXXX X. XXXXXXX, having an address at 00000
Xxxxx Xxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000 ("Landlord") and TRIO ACQUISITION,
INC., a Delaware corporation, having an address at 000 Xxx-Xxxxx Xxxxx, Xxxxx
000, Xxxxxxxxxxxx, Xxxxxxxx 00000 ("Tenant"). Landlord and Tenant mutually
covenant and agree as follows:
ARTICLE I
GRANT AND TERM
1.1 Landlord, for and in consideration of the rents herein reserved
and of the covenants and agreements herein contained which are to be performed
by Tenant, hereby leases to Tenant, and Tenant hereby leases from Landlord, the
real estate and improvements thereon commonly known as 000 Xxxxxx Xxxxxx,
Xxxxxx, Xxxx 00000 (the "Real Estate"), together with the easement created by
that certain Easement granted by Xxxxxx Xxxxxx, Inc. in favor of Landlord,
dated December 18, 1963, recorded in Lorain County on January 6, 1964, in Deed
Volume 864, Page 513, and known as Recorder's File No. 644175 (the "Easement"),
a legal description of the Real Estate and the Easement are attached hereto as
Exhibit A and made a part hereof by this reference, together with all rights,
privileges and appurtenances thereto (together with the Real Estate and the
Easement, collectively hereinafter called the "Demised Premises").
1.2 Subject to the terms and provisions of Section 1.3 hereof, this
Lease shall commence on September 11, 1996 (the "Commencement Date") and
terminating on September 30, 2001 (the "Termination Date"), unless sooner
terminated or extended as hereinafter provided.
1.3 This Lease is contingent upon Tenant acquiring the assets of
Trio Products, Inc. ("Trio"), and the term hereof shall commence on the date of
the closing (the "Closing") of the transaction between Tenant and Trio pursuant
to that certain Asset Purchase Agreement dated as of September 11, 1996, by and
between Trio, as seller, and Tenant, as buyer (the "Asset Purchase Agreement").
Landlord shall be required to deliver possession of the Demised Premises to
Tenant at the Closing.
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1.4 So long as Tenant is not in default under the covenants and
agreements of this Lease, Tenant's quiet and peaceable enjoyment of the Demised
Premises shall not be disturbed or interfered with by Landlord or by any person
claiming by, through or under Landlord.
1.5 So long as Tenant is not in default under the covenants and
agreements of this Lease, Tenant shall have the right to renew this Lease for
an additional term of five (5) years, upon the same terms and conditions
contained herein (except Rent and this renewal option). Rent during such
renewal period shall be calculated by multiplying the Rent (as hereinafter
defined) by an escalation factor, which escalation factor shall be calculated
by subtracting the Revised Consumers Price Index for Urban Wage Earners and
Clerical Workers indicated in the column for the City of Cleveland entitled
"all items" published by the Bureau of Labor Statistics of the United States
Department of Labor for July, 1996 from the same Consumer Price Index for June,
2001. The difference shall be added to or subtracted from, as the case may be,
the number one (1), which sum shall be the escalation factor. The new Rent so
calculated shall be payable in sixty (60) equal monthly installments. Tenant
shall give Landlord notice of its intent to renew at least one hundred and
twenty (120) days prior to the expiration of the original term.
ARTICLE II
RENT
2.1 Tenant shall pay to or upon the order of Landlord as base rent
("Rent") for the term the sum of ONE MILLION TWO HUNDRED EIGHTY-NINE THOUSAND
SIX HUNDRED AND NO/100 DOLLARS ($1,289,600.00) (subject to adjustments as
provided herein), payable in sixty (60) monthly installments as follows:
(a) for the period beginning on the Commencement Date and
ending on September 30, 1998, the Rent shall be payable in monthly installments
of EIGHTEEN THOUSAND SEVEN HUNDRED THIRTY-THREE AND 33/100 DOLLARS
($18,733.33); and
(b) for the period beginning on October 1, 1998 and ending on
September 30, 2001, the Rent shall be payable in monthly installments of
TWENTY-THREE THOUSAND THREE HUNDRED THIRTY-THREE AND 33/100 DOLLARS
($23,333.33).
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The first monthly installment, or a prorated portion thereof in the event the
Commencement Date is not on the first of the month, shall be paid to Landlord
on the Commencement Date. Thereafter, each monthly installment shall be due
and payable on the first day of each successive month during the term.
2.2 All sums due Landlord hereunder (including Rent and additional
rent as herein provided) shall be paid at Landlord's address as first above
written, or at such other place as Landlord may designate in writing from time
to time. All sums due Landlord shall be paid without deduction, set-off,
discount or abatement, except as otherwise provided herein and as permitted
pursuant to Section 12.5 of the Asset Purchase Agreement, in lawful money of
the United States. Each payment of sums due Landlord which shall not be paid
when due shall bear interest, at the rate of twelve percent (12%) per annum,
from the due date until the same shall be paid.
2.3 It is the purpose and intent of the Landlord and Tenant that the
Rent (as may be adjusted as provided herein) to be paid to the Landlord by the
Tenant be absolutely net to Landlord, so that this Lease shall yield net to
Landlord such rent as hereinabove provided, and that all costs, expenses and
obligations of every kind or nature whatsoever, relating to the Demised
Premises (except as otherwise specifically provided herein), which may arise or
become due during the term of this Lease, shall be paid by the Tenant, and that
the Landlord shall be indemnified and saved harmless by the Tenant from and
against the same. Nothing herein contained shall be deemed to require the
Tenant to pay or discharge any liens or mortgages of any character whatever
which may be placed upon the Demised Premises by the affirmative act of the
Landlord.
2.4 No security deposit shall be required of Tenant.
ARTICLE III
IMPROVEMENTS; EQUIPMENT
3.1 Landlord hereby acknowledges that Tenant has title to all
machinery, equipment and trade fixtures on the Demised Premises and Tenant
shall have the right to remove such items prior to the expiration of the term
of this Lease or any renewal thereof, or within one month after an early
termination of the Lease resulting from Tenant's default or a condemnation of
the Demised Premises. The period of removal shall be extended for delays
caused without fault or neglect on the part of Tenant such as acts of God,
strikes, lockouts or
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other conditions beyond the control of Tenant. In the event Tenant does not
remove such items as aforesaid, the machinery, equipment and trade fixtures
shall become the property of Landlord without payment of any consideration to
Tenant.
3.2 Tenant shall retain title to all machinery, equipment and trade
fixtures which it places on the Demised Premises and shall have the right to
remove such items on the basis indicated in Section 3.1 hereof.
3.3 Landlord and Tenant acknowledge that Tenant will install
additional manufacturing equipment in the Demised Premises during the term, and
that the present electrical supply to the Demised Premises may be inadequate to
meet Tenant's needs. Landlord shall arrange for the provision of electrical
service to the Demised Premises in the amount of 4,500 amps. Tenant shall be
responsible for the cost of the acquisition and installation of all wiring and
other equipment to carry the electricity from the output transformers to the
plant on the Demised Premises and connecting it with Tenant's equipment. In
the event the installation of the new transformer(s) enables Landlord to remove
and sell old transformers presently on the Demised Premises, Landlord shall
have the right to do so, with no claim to the proceeds by Tenant. Landlord and
Tenant acknowledge that it may take several months to obtain and install the
equipment described in this Section 3.3, and that the equipment will not be
available for Tenant's use at the commencement of the term of this Lease.
Notwithstanding the foregoing, Landlord shall endeavor to provide such
equipment with reasonable diligence, and in any event shall ensure such
equipment is fully installed by no later than January 11, 1997.
ARTICLE IV
PAYMENT OF TAXES
4.1 Tenant shall pay, before any fine, penalty, interest or cost may
be added thereto, or become due or be imposed by operation of law for the
nonpayment thereof, all taxes, assessments, water and sewer rents, rates and
charges, transit taxes, charges for public utilities, excises, levies, licenses
and permit fees and other governmental charges applicable to the Demised
Premises during the term hereof (all of which are sometimes collectively
referred to herein as the "Impositions"), which, for any time during the term
of this Lease may be assessed, levied, confirmed, imposed upon, or become due
and payable out of, or in respect of, or become a lien on, the Demised Premises
or any improvements thereon, or any part thereof or any appurtenance thereto.
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4.2 If any Impositions paid by Tenant shall cover any period of time
prior to or after the expiration of the term hereof, Tenant's share of such
Impositions shall be equitably prorated to cover only the period of time within
the tax fiscal year during which this Lease shall be in effect, and Landlord
shall reimburse Tenant to the extent required. Landlord and Tenant agree to
divide ratably any special assessments or installments of special assessments
paid by Tenant, which division shall reflect the unexpired term of the Lease
and the period during which any improvement or item for which a special
assessment is imposed may be expected to benefit the Demised Premises. In
addition, nothing herein contained shall require Tenant to pay municipal, state
or federal income taxes assessed against Land- lord, municipal, state or
federal capital levy, estate, succession, inheritance or transfer taxes of
Landlord, or corporation or other franchise taxes imposed upon any owner of the
fee of the Demised Premises; provided, however, that, if at any time during the
term of this Lease, the methods of taxation prevailing at the commencement of
the term hereof shall be altered so as to cause the whole or any part of taxes,
assessments, levies, impositions or charges now levied, assessed or imposed on
real estate and the improvements thereon to be levied, assessed and imposed,
wholly or partially as a capital levy, or otherwise, on the rents received
therefrom, or if any tax, corporation franchise tax, assessment, levy
(including, but not limited to any municipal, state or federal levy),
imposition or charge, or any part there- of, shall be measured by or based in
whole or in part upon the Demised Premises and shall be imposed upon Landlord,
then all such taxes, assessments, levies or charges, or the part thereof so
measured or based, shall be paid and discharged by Tenant.
4.3 The parties understand and agree that the Tenant shall pay the
taxes and other charges as enumerated in this Article IV of the Lease at the
place at which tax payments are required to be made, each such payment of taxes
to be made at least ten days before the said tax itself would become delinquent
in accordance with the law then in force governing the payment of such tax or
taxes, and shall, upon request, promptly deliver official receipts evidencing
payments to Landlord.
4.4 Tenant shall have the right at its own expense to contest the
amount or validity of any tax or tax claim by appropriate proceedings
diligently conducted in good faith, but only after payment of such tax unless
such payment would operate as a bar to such contest or interfere materially
with the prosecution thereof, in which event payment of such tax shall be
postponed if and only so long as:
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(a) neither the Demised Premises nor any part thereof would
by reason of such postponement be, in Landlord's reasonable judgment, in danger
of being forfeited or lost; and
(b) Landlord shall not in its reasonable judgment be in
danger of being subject to criminal liability or penalty by reason of such
postponement.
Any such contest may be made in the name of Landlord or Tenant or both as
Tenant shall determine, and Landlord agrees to cooperate reasonably with Tenant
in any such contest but without expense to Landlord. If, during the pendency
of such contest, Landlord in the exercise of its reasonable judgment shall
determine and shall notify Tenant of its determination that either condition
(a) or (b) of this Section 4.4 is no longer satisfied, Tenant shall immediately
terminate such contest and pay such tax and any costs, fees (including
attorneys' fees) and other liabilities accruing in such proceedings. If no
default exists upon conclusion of any contested proceedings, Tenant shall be
authorized to collect any refund obtained in such contest.
4.5 In the event Tenant shall fail, refuse or neglect to make any of
the payments in this Article IV required, then Landlord may, at its option,
pay the same, and the amount or amounts of money so paid shall be repaid by
Tenant to Landlord, upon demand of Landlord, and the payment thereof may be
collected or enforced by Landlord in the same manner as though said amount were
an installment of Rent specifically required by the terms of the Lease to be
paid by Tenant to Landlord.
ARTICLE V
PURPOSE AND USE
5.1 Tenant may use and occupy the Demised Premises for the conduct
of its business, including, without limitation, the following:
(a) Manufacturing, assembling, testing and selling its
plastic and related products;
(b) Warehousing and shipping; and
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(c) Offices.
5.2 Tenant shall not use or occupy the Demised Premises, or permit
the Demised Premises to be used or occupied, contrary in any material respects
to any statute, rule, order, ordinance, requirement or regulation applicable
thereto, or in any manner which would materially violate any certificate of
occupancy affecting the same, or which would cause structural injury to the
buildings, structures and improvements, or cause the value or usefulness of the
Demised Premises, or any part thereof, to diminish, or would constitute a
public or private nuisance or waste.
ARTICLE VI
MAINTENANCE AND REPAIR
6.1 Except as set forth in Section 6.2 hereof, Tenant shall take
good care of the Demised Premises and shall keep them in the same condition and
state of repair, ordinary wear and tear excepted, as existed at the time Tenant
received possession. All repairs made by the Tenant shall be equal in quality
and class to the original work.
6.2 Landlord shall repair and maintain and, where appropriate,
replace, at Landlord's sole cost and expense, all structural elements,
including without limitation the roof, of the Demised Premises in good
condition and repair, except if any such maintenance, repair or replacement is
due to damage caused by Tenant.
6.3 The necessity for and adequacy of repairs to any structures and
improvements pursuant to this Article VI shall be measured by the standard
which is appropriate for buildings, structures and improvements of similar
construction and class.
6.4 Although Landlord shall have no obligation by reason of this
Lease to make repairs of any kind other than as set forth in Section 6.2
hereof, Landlord may elect to make necessary repairs which Tenant fails to make
and the cost of such repairs shall be additional rent which shall be
immediately due and owing under this Lease.
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6.5 Landlord and Tenant acknowledge that a new roof is required for
the Demised Premises, the approximate cost of which is Two Hundred Nineteen
Thousand Dollars ($219,000), the replacement of which Landlord has committed.
Notwithstanding the provisions contained in Section 6.2 hereof, Tenant shall
participate in the cost of such replacement by paying Landlord the sum of One
Hundred Nine Thousand Five Hundred Dollars ($109,500) at the Closing by wire
transfer of immediately available funds. Landlord shall obtain a 10 year
warranty on such replacement roof, assignable to any subsequent owner of the
Demised Premises, and shall cooperate with Tenant in pursuing any claim under
such warranty or, if required, making a claim under such warranty on Tenant's
behalf.
ARTICLE VII
TITLE; MECHANICS' LIENS
7.1 Tenant shall not permit or suffer to be filed or claimed against
the interest of Landlord in the Demised Premises during the term of this Lease
any lien or claim of any kind for services or materials furnished in connection
with any improvement of the Demised Premises, and if such lien be claimed or
filed it shall be the duty of Tenant, within thirty (30) days after Tenant
receives notice that a claim has been filed, or within thirty (30) days after
Landlord has been given written notice of such claim and has transmitted
written notice of the receipt of such claim to Tenant (whichever thirty-day
period expires earlier) to cause the Demised Premises to be released from such
claim, either by payment or by the posting of bond or by the payment into court
of the amount necessary to relieve and release the Demised Premises from such
claim or in any other manner which, as a matter of law, will result within the
said period of thirty (30) days, in releasing Landlord and the title of
Landlord from such claim.
7.2 In consideration of Tenant's option to purchase and right of
first refusal hereunder, Landlord shall not enter into any agreements,
easements, covenants, conditions or other restrictions that might affect title
to the Demised Premises without Tenant's prior written approval.
Notwithstanding the foregoing, Landlord shall have the right after the
Commencement Date and prior to Tenant's election to purchase the Demised
Premises pursuant to Section 14.2 hereof or to exercise its right of first
refusal pursuant to Article XV hereof, to grant a mortgage on Landlord's fee
interest in the Demised Premises. In the event Tenant purchase the Demised
Premises in accordance with either Article
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XIV or XV, Landlord shall be required to pay or discharge any liens or
mortgages of any character whatever which may be placed upon the Demised
Premises by the affirmative act of the Landlord.
ARTICLE VIII
INDEMNIFICATION OF LANDLORD
8.1 Tenant will protect, indemnify and save Landlord harmless from
and against all liabilities, obliga- tions, claims, damages, penalties, causes
of action, costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses) imposed upon or incurred by or asserted against
Landlord by reason of (a) any accident, injury to or death of persons or loss
of or damage to property occurring on or about the Demised Premises or any part
thereof or the adjoining properties, sidewalks, curbs, streets or ways, (b) any
failure on the part of Tenant to perform or comply with any of the terms of
this Lease, or (c) performance of any labor or services or the furnishing of
any materials or other property in respect of the Demised Premises or any part
thereof. In case any action, suit or proceeding is brought against Landlord by
reason of any such occurrence, Tenant shall, at Tenant's expense, resist and
defend such action, suit or proceeding. This indemnity shall not apply to any
liabilities, obligations, claims, damages, penalties, causes of action, costs
and expenses resulting from the actions or omissions of Landlord, its employees
or agents.
ARTICLE IX
INSURANCE
9.1 During the term of this Lease, as additional rent for the
Demised Premises, Tenant shall procure and maintain insurance, at its own cost
and expense, insuring:
(a) The buildings, structures and improvements at any time
situated upon the Demised Premises against loss or damage by fire, explosion,
sprinkler leakage, windstorm, malicious mischief, vandalism, and all other
normally insurable casualties insured by a full and complete extended coverage
endorsement of not less than 100% of the full replacement value of such build-
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ings, structures and improvements, with all proceeds of insurance to be payable
to Landlord and Tenant; and
(b) Landlord and Tenant from all claims, demands or actions
for injury to or death of any person in an amount of not less than $1,000,000;
for injury to or death of more than one person in any one accident to the limit
of $1,000,000; and for damage to property in an amount of not less than
$1,000,000 made by, or on behalf of, any person or persons, firm or
corporation, arising from, related to or connected with the Demised Premises.
9.2 The aforesaid insurance shall be in companies satisfactory to
Landlord and Tenant. The aforesaid insurance shall not be subject to
cancellation except after at least thirty (30) days' prior written notice to
Landlord, and Landlord shall be named as an additional insured. The original
insurance policies (or certificates thereof satisfactory to Landlord), together
with satisfactory evidence of payment of the premiums thereon, shall upon
written request be deposited with Landlord at the commencement of the Lease.
If Tenant fails to obtain the aforesaid insurance, Landlord may obtain such
insurance and keep the same in effect, and Tenant shall pay to Landlord the
premium cost thereof upon demand as additional rent hereunder.
9.3 Whenever any loss, cost, damage or expense resulting from fire,
explosion or any other casualty or occurrence is incurred by either of the
parties to this Lease in connection with the Demised Premises, and such party
is then covered in whole or in part by insurance with respect to such loss,
cost, damage or expense, then the party so insured hereby releases the other
party from any liability it may have on account of such loss, cost, damage or
expense to the extent of any amount recovered by reason of such insurance and
waives any right of subrogation which might otherwise exist in or accrue to any
person on account thereof; provided that such release of liability and waiver
of the right of subrogation shall not be operative in any case where the effect
thereof is to invalidate such insurance coverage or increase the cost thereof
(however, in the case of increased cost the other party shall have the right,
within thirty (30) days following written notice, to pay the increased cost
thereupon keeping such release and waiver in full force and effect).
9.4 In the event of damage to or destruction of an immaterial part
of the buildings, structures or improvements located on the Demised Premises by
fire, windstorm, or other casualty, Landlord shall cause the Demised Premises
to be repaired, restored or rebuilt will all reasonable dispatch. Any
insurance pro-
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ceeds covering such casualty shall be made available to Landlord for such
repair or restoration.
9.5 In the event of damage to or destruction of a material part, as
determined by Tenant in its reasonable discretion, or all of the buildings,
structures or improvements located on the Demised Premises by fire, windstorm,
or other casualty, Tenant shall have the option to either (i) terminate the
Lease, in which event insurance proceeds covering such casualty (excluding
insurance proceeds covering Tenant's machinery, equipment, trade fixtures and
personal property or as part of the recovery under a general casualty policy
where a specific portion of such proceeds is allocable to such property of
Tenant) shall be paid to Landlord, or (ii) elect to have the sum of insurance
proceeds covering such casualty made available for the reconstruction or repair
of any building, structure or improvement so damaged or destroyed, and for the
repair or replacement of any machinery, equipment, and trade fixtures owned by
Tenant; provided, however, that if the amount of proceeds shall be insufficient
for the reconstruction or repair and refurnishing of any building or structure
damaged or destroyed, as aforesaid, then Tenant shall not be responsible for
the amount of the deficiency.
ARTICLE X
ASSIGNMENT;
LEASEHOLD MORTGAGES
10.1 Except as otherwise permitted in this Article X, this Lease
shall not be assigned by Tenant unless Landlord shall have consented thereto in
writing, which consent shall not be unreasonably withheld.
10.2 At any time and from time to time, Tenant may, without
Landlord's consent, assign this Lease to a direct or indirect wholly-owned
subsidiary of IPC, Inc.
10.3 At any time and from time to time, Tenant may freely mortgage,
pledge or otherwise encumber its interest in the Demised Premises. Any such
mortgage, pledge or other encumbrance shall be referred to as a "Leasehold
Mortgage," which Leasehold Mortgage shall at no time be a lien on the
Landlord's interest in the Demised Premises.
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10.4 The holder of any Leasehold Mortgage may give written notice to
Landlord, specifying the name and address of the mortgagee under such Leasehold
Mortgage (the "Leasehold Mortgagee") and attaching thereto a true and complete
copy of such Leasehold Mortgage, and if such notice shall be given, thereafter
Landlord shall give to such Leasehold Mortgagee notice of any and all defaults
and nonperformance hereunder not later than the first to occur of (i) the time
such notice is given to Tenant and (ii) the time of the declaration of any
default, or the exercise of any remedy hereunder, addressed to such Leasehold
Mortgagee at its address last furnished to Landlord in writing. No such notice
by Landlord to Tenant hereunder shall be deemed to have been duly given unless
and until a copy thereof has been delivered to such Leasehold Mortgagee of
which Landlord has been notified in accordance with the provisions of this
Section 10.4 in accordance with the terms of Section 18.2 hereof. Such
Leasehold Mortgagee, after service of a further notice from Landlord to
Leasehold Mortgagee that Tenant's applicable cure period has expired (the
"Landlord's Notice"), shall thereupon have a period of forty-five (45) days
from Leasehold Mortgagee's receipt of the Landlord's Notice for remedying the
default or causing the same to be remedied. Such Leasehold Mortgagee, in case
Tenant shall be in default hereunder, shall within the period and otherwise as
herein provided, have the right to remedy such default, or cause the same to be
remedied. Landlord will accept performance by any such Leasehold Mortgagee
within the aforesaid period of any covenant, condition, or agreement on
Tenant's part to be performed hereunder with the same force and effect as
though performed by Tenant. Landlord will not exercise any right or remedy
with respect to any default in respect of the performance of work required to
be performed, or acts to be done, or conditions to be remedied so long as such
Leasehold Mortgagee shall, in good faith, have commenced promptly to rectify
the same and shall thereafter prosecute the same to completion with diligence
and continuity; provided, however, that all such defaults are cured within
forty-five (45) days from the date of Landlord's Notice or, if such
non-monetary default is not reasonably curable within such forty-five day
period, the Leasehold Mortgagee commences a cure within forty-five (45) days of
the date of Landlord's Notice and the Leasehold Mortgagee completes such cure
within one hundred eighty (180) days after such date. Notwithstanding the
foregoing, the period of time given to the Leasehold Mortgagee to cure any
default by Tenant which reasonably requires that said Leasehold Mortgagee be in
possession of the Demised Premises to do so, shall be deemed extended to
include the period of time reasonably required by said Leasehold Mortgagee to
obtain such possession (by foreclosure or otherwise) with due diligence. No
Leasehold Mortgagee shall become liable under the provisions of this Lease
unless and until such time as it becomes the owner of the leasehold
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estate covered by its mortgage, and then only for obligations arising during
the time it is the owner of such leasehold estate; provided, however, that, the
preceding portion of this sentence shall not limit or restrict in any way
Landlord's authority to terminate this Lease, as against any Leasehold
Mortgagee (subject to the provisions of this Section 10.4) if any default
hereunder (including, without limitation, any default in the payment of Rent)
has not been completely cured. From and after receiving notice from Tenant or
any Leasehold Mortgagee as to the existence of a Leasehold Mortgage as provided
for in the first sentence of this Section 10.4, and if the Leasehold Mortgage
expressly so requires that Landlord so agree, Landlord will not cancel,
surrender, modify or amend the terms, covenants and conditions of this Lease
without the prior written consent of the Leasehold Mortgagee, such consent not
to be unreasonably withheld.
10.5 In case of termination of this Lease by reason of an event of
default hereunder, Landlord shall give notice thereof simultaneously to each
Leasehold Mortgagee who shall be entitled to receive notices of default as
provided in Section 10.4 hereof, which notice shall be addressed to each
Leasehold Mortgagee at the address last furnished to Landlord in writing as
above provided. Provided that the Lease was terminated as the result of an
event of default which was personal to Tenant and therefore not curable by the
Leasehold Mortgagee, if any of such Leasehold Mortgagees notifies Landlord in
writing, within thirty (30) days after the giving of such notice of termination
by Landlord as aforesaid, that it desires to enter into a new lease, Landlord
shall execute and deliver such new lease to the holder or holders of the First
Leasehold Mortgagee (as hereinafter defined) who timely requested such a new
lease in respect of the Demised Premises or leasehold estate which shall have
been covered by the lien of the mortgage held by such Leasehold Mortgagee, for
the remainder of the term of this Lease, at the Rent and other charges herein
reserved and upon the covenants, conditions, limitations and agreements herein
contained, provided that such Leasehold Mortgagee shall have paid to Landlord
all Rent and other charges due under this Lease and shall have paid to the
appropriate authority any other charges to be paid by Tenant hereunder, up to
and including the date of the commencement of the term of such new lease. The
term "First Leasehold Mortgagee" as used in this Lease shall mean that
Leasehold Mortgagee or Leasehold Mortgagees holding the most senior lien on the
interest of Tenant under this Lease or any portion thereof, as consolidated,
renewed, extended, modified or replaced from time to time. In the event the
First Leasehold Mortgagee fails to notify Landlord of its election to enter
into a lease within such thirty-day period, Landlord shall enter into such
lease with any other Leasehold Mortgagee who so elects by written notice
delivered within such thirty-day period to Landlord to
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enter into a new lease with Landlord, in the order of priority of the Leasehold
Mortgagees, or as the other Leasehold Mortgagees may agree. Nothing herein
contained shall be deemed to impose any obligation on the part of Landlord to
deliver physical possession of the Demised Premises or any part thereof to such
Leasehold Mortgagee, provided, however, that Landlord shall cooperate with such
Leasehold Mortgagee (by joining as a party in any appropriate action or
proceeding, or otherwise) at the sole cost and expense of such Leasehold
Mortgagee, and at no cost, expense or liability to Landlord, for the purpose of
enabling such Leasehold Mortgagee to obtain such possession of the Demised
Premises. The Leasehold Mortgagee shall not be required to cure any event of
default which is exclusively personal to Tenant and which therefore no
Leasehold Mortgagee has the power to cure (such as, for example, the bankruptcy
of the Tenant), as a prerequisite to the exercise of the rights granted to such
Leasehold Mortgagee by the provisions of this Section 10.5. Except as
aforesaid, such Leasehold Mortgagee shall remedy all other events of default
hereunder. Any such new lease and the leasehold estate thereby created shall
continue to maintain the same priority as the within Lease with regard to any
mortgage on the Demised Premises or any part thereof or any other lien, charge
or encumbrance thereon caused or made by Landlord whether or not the same shall
then be in existence. The provisions of the preceding sentence are intended to
be self-executing, and Landlord shall not be obligated to expend any funds or
take any other action (other than to execute any documents reasonably required
by any title company, at no expense to Landlord) to accomplish or obtain such
priority for any such new lease or leasehold estate.
10.6 Landlord agrees to enter into any amendments of this Lease as
may be reasonably required at any time by any Leasehold Mortgagee, except any
amendment which in Landlord's reasonable judgment diminishes in any respect any
rights of, increases any obligations of or adversely affects Landlord
hereunder; any costs incurred in connection with such an amendment shall be
borne by Tenant.
10.7 Notwithstanding the provisions of this Article X, any Leasehold
Mortgagee may foreclose on its mortgage or accept a deed in lieu of foreclosure
without the necessity of complying with the provisions of Sections 10.1 and
10.2, provided, however, that, following any such foreclosure or acceptance of
a deed in lieu of foreclosure, the Demised Premises may be used only for the
use and purposes set forth in Section 5.1 hereof, and for no other purpose
without the written consent of the Landlord.
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10.8 Each party hereby covenants and agrees with the other that it
shall, within fifteen (15) days after written notice shall have been given by
the other requiring a statement of the status of the Lease, give such statement
in writing indicating whether the Lease is in good standing, and if it is not,
the particulars in which it is not, and failure within said period of fifteen
(15) days to give such written reply shall constitute a representation that the
Lease is in good standing, upon which representation any person, after the
expiration of said fifteen (15) days, may rely as being true and correct.
10.9 If Tenant's interest in and to this Lease is assigned with
Landlord's consent, Tenant's liability for the performance of the covenants and
agreements contained herein to be performed by Tenant shall cease and determine
simultaneously with such an assignment, provided that the successor tenant, in
each instance, assumes in writing all of the covenants and agreements to be
kept and performed by Tenant and an executed copy of such assumption is
delivered to Landlord and provided further that, at the time of such an
assignment of Tenant's interest, all of the covenants and agreements to be kept
and performed by Tenant were as of that date kept and performed.
10.10 Upon the written consent of Landlord, which consent shall not
be unreasonably withheld, Tenant shall have the right to sublet all or any
portion of the Demised Premises for any lawful purpose and for purposes not in
contravention of zoning regulations or of any conditions, covenants, easements,
or reservations of record affecting the Demised Premises. Tenant shall at all
times, notwithstanding any such subletting, remain directly and primarily
liable to Landlord for the full and faithful performance of all of the terms
and provisions thereof.
ARTICLE XI
CONDEMNATION
11.1 If the whole of the Demised Premises, or so much thereof,
including however, a portion of the build- ings, structures and improvements,
shall be taken or condemned for a public or quasi-public use or purpose by any
competent authority, and as a result thereof the balance of the Demised
Premises cannot in the judgment of Tenant be used for the same purpose as
expressed in Section 5.1 hereof, then, and in either of such events, the term
of this Lease shall terminate when possession of the Demised Premises shall be
so taken and surrendered,
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and any award, compensation or damages shall be paid to and be the sole
property of Landlord (except for that portion allocable to Tenant's machinery,
equipment, trade fixtures and personalty).
11.2 If a material part of the Demised Premises shall be so taken or
condemned, as determined by Tenant in its reasonable discretion, Tenant shall
have the option to terminate this Lease. If as a result of such partial
condemnation, Tenant determines, in its reasonable discretion, that the balance
of the Demised Premises can be used by Tenant for the same purpose as expressed
in Section 5.1 hereof, then Tenant shall be entitled to have the Rent adjusted
to reflect limitations in space available for Tenant's use and Landlord shall
be entitled to retain the entire award; provided, however, that Landlord shall
repair and restore the Demised Premises and all buildings, structures and
improvements thereon to a complete architectural unit.
ARTICLE XII
DEFAULT AND REMEDIES
12.1 Tenant agrees that any one or more of the following events
shall be considered events of default as said term is used herein:
(a) Tenant shall fail to make any payment of rent required
to be made by Tenant hereunder when due as herein provided, and such failure
shall continue for ten (10) days after notice thereof in writing to Tenant; or
(b) Tenant shall fail to comply with any of the other
covenants and agreements herein contained to be kept, observed and performed by
Tenant, and such failure shall continue for thirty (30) days after notice
thereof in writing to Tenant; or
(c) The filing or execution or occurrence of:
(i) a petition in bankruptcy by or against Tenant;
(ii) a petition or answer by or against Tenant
seeking a reorganization, arrangement, composition, readjustment,
liquidation, dissolution or other relief of the same or different kind
under any provision of any bankruptcy act;
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(iii) adjudication of Tenant as a bankrupt or
insolvent, either in the bankruptcy or equity sense;
(iv) an assignment by Tenant for the benefit of
creditors;
(v) a petition or other proceeding by or against
Tenant for, or the appointment of, a trustee, receiver, guardian,
conservator or liquidator of Tenant with respect to the Demised Premises or
with respect to all or substantially all of Tenant's property; or
(vi) a petition or other proceeding by or against
Tenant for its dissolution or liquidation, or the taking of Tenant's
property by any governmental authority in connection with dissolution or
liquidation;
and in the case of petitions filed against Tenant under (i), (ii), (v) or (vi),
the nondismissal of such petition within forty-five (45) days after the filing
thereof; or
(d) the entry of any order, judgment or decree by any court
of competent jurisdiction granting any prayer or demand contained in any
petition under Sections 12.1(d) (i), (ii), (v) or (vi); or
(e) the taking by any person of Tenant's interest in this
Lease upon execution, attachment or other process of law or equity.
Upon the occurrence of any one or more of such events of default, it shall be
lawful for Landlord, at its election, to declare the said term ended, and
either with or without process of law, to re-enter and to expel, remove and put
out Tenant and all persons occupying the Demised Premises under Tenant, using
such force as may be necessary in so doing. If default shall be made in any
covenant and agreement herein contained to be kept, observed and performed by
Tenant, other than the payment of rent as herein provided, which cannot with
due diligence be cured within a period of thirty (30) days, and if notice
thereof in writing shall have been given to Tenant, and if Tenant, prior to the
expiration of thirty (30) days from and after the giving of such notice,
commences to eliminate the cause of such default, proceeds diligently and with
reasonable dispatch to take all steps and do all work required to cure such
default and does so cure such
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default, then Landlord shall not have the right to declare the said term ended
and enforce all of its rights and remedies hereunder for any default not so
cured.
12.2 The foregoing provisions for the termination of this Lease for
any default in any of its covenants shall not operate to exclude or suspend any
other remedy of Landlord for breach of any of said covenants or for the
recovery of rent or any advance of Landlord made thereon, and, in the event of
the termination of this Lease as aforesaid, Tenant agrees to indemnify and save
harmless Landlord from any loss arising from such termination and reentry.
12.3 No remedy herein or otherwise conferred upon or reserved to
Landlord shall be considered exclusive of any other remedy. No delay or
omission of Landlord to exercise any right or power arising from any default
shall impair any such right or power or shall be construed to be a waiver of
any such default or an acquiescence therein.
12.4 No waiver of any breach of any of the covenants of this Lease
shall be construed, taken or held to be a waiver of any other breach or waiver,
acquiescence in or consent to any further or succeeding breach of the same
covenant.
12.5 Neither the rights herein given to receive, collect, xxx for or
distrain for any rent or rents, monies or payments, or to enforce the covenants
and agreements of this Lease, or to prevent the breach or non-observance
thereof, or the exercise of any such right or of any other right or remedy
hereunder or otherwise granted or arising, shall in any way affect or impair or
toll the right or power of Landlord to declare the term of this Lease hereby
granted ended, and to terminate this Lease as provided for herein because of
any default in or breach of the covenants and agreements of this Lease.
12.6 Nothing contained in this Article XII shall limit or restrict
the right of Tenant under Article III to remove its improvements from the
Demised Premises.
ARTICLE XIII
MODIFICATIONS; SIGNS
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13.1 Tenant, at its own expense, may make, without Landlord's
consent, any alteration, modification or rearrangement (collectively referred
to below as "modifications"), of the Demised Premises, not affecting the
structural integrity of the building. Upon termination or expiration of this
Lease, the Demised Premises, as regards nonstructural modifications, shall be
returned to its original condition, less ordinary wear and tear.
13.2 Modifications affecting the structural integrity of the
building may not be made by Tenant without the prior written consent of
Landlord, which consent shall not be unreasonably withheld. If Tenant desires
to make such a modification, notice of this type of proposed action shall be
delivered to the Landlord at least sixty (60) days prior to the contemplated
commencement of such action. Within forty-five (45) days of receipt by
Landlord of the aforesaid notice from Tenant, Landlord shall by written notice
to Tenant state whether Landlord desires that the Demised Premises, in regard
to the contemplated structural modification, be returned to its original
condition, less ordinary wear and tear, upon termination or expiration of the
Lease. If such notice from Landlord is received by Tenant within the time
prescribed, Tenant shall, at the termination or expiration of the Lease, return
the Demised Premises, in regard to that particular modification, to the
original condition, less ordinary wear and tear. In all events, Tenant shall
have the right to remove any structural modification as it sees fit, always
returning the Demised Premises to the condition prior to installation of such
modification.
13.3 Tenant shall keep the Demised Premises free from any liens
arising out of any work performed, materials furnished or obligations incurred
by Tenant.
13.4 In addition to the possible installation of modifications and
removal thereof by Tenant, it is agreed that all personal property, mechanical
tools, trade fixtures and like items may be installed and removed as Tenant
sees fit, always returning the Demised Premises to the condition prior to
installation of such property, tools, trade fixtures or like items.
13.5 Tenant, at its sole cost, may place signs on the Demised
Premises, provided, however, that such signs shall be of a size and in such
design as shall be approved by Landlord whose consent shall not be unreasonably
withheld or delayed. Tenant, at its sole cost, shall obtain such permits and
approvals as may be necessary from any governmental bodies.
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ARTICLE XIV
OPTION TO PURCHASE
14.1 Upon written notice from Tenant to Landlord at any time during
the term of this Lease (including any renewal period) and so long as Tenant is
not in default hereunder, Landlord shall enter into a Purchase Agreement with
Tenant, substantially in the form of Exhibit B attached hereto and made a part
hereof, for the sale of the Demised Premises to Tenant at a price to be
determined in accordance with this Article XIV.
14.2 Upon delivery of notice by Tenant to Landlord of its election
to purchase the Demised Premises in accordance with Section 14.1 hereof,
Landlord and Tenant shall attempt in good faith to agree upon a fair market
value for the Demised Premises. If agreement is not reached within thirty (30)
days, the parties shall proceed with the following appraisal process to
determined the purchase price of the Demised Premises. Landlord and Tenant
shall jointly obtain an appraisal of the Demised Premises (the "Appraisal") in
the manner set forth below and which shall be delivered to both Landlord and
Tenant on a date (the "Appraisal Delivery Date") no later than two months after
Tenant's delivery of its notice to Landlord pursuant to Section 14.1 hereof:
(a) The fair market value of the Demised Premises as of the
Appraisal Delivery Date shall be determined by a board (the "Board") of three
disinterested licensed real estate appraisers, who are members of the American
Institute of Real Estate Appraisers, each with at least ten (10) years'
experience in the valuation of similar properties in the metropolitan area of
Lorain County, Ohio. Landlord and Tenant shall each select an appraiser and
those two appraisers shall jointly select the third appraiser. The Board shall
make an independent investigation and shall hold a hearing at which both
Landlord and Tenant shall have a right to be heard. The Board shall
then submit to the parties its determination of the fair market value of the
Demised Premises which shall be a final, unappealable decision.
(b) The fees of the individual members of the Board shall be
shared equally by Landlord and Tenant, and all costs incurred in connection
with the determination of the fair market value of the Demised Premises shall
be divided equally between Landlord and Tenant.
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14.3 Any transferee of Landlord shall take any interest in the
Demised Premises subject to this purchase option; and Tenant shall not be
required to obtain the appointment of any guardian or other type of personal
representative to protect the interest of any owner in the proceedings before
the Board, it being agreed that the function of the Board is to make an
independent and impartial investigation and determination after hearing any
party in interest that desires to present testimony before it. The Board shall
not be bound by rules of evidence in conducting its hearings and, except for
abuse of discretion or irregularity of proceedings, its decision shall not be
appealable.
ARTICLE XV
RIGHT OF FIRST REFUSAL
15.1 If Landlord receives a bona fide offer to purchase all or any
portion of the fee title of the Demised Premises from an unaffiliated third
party, any contract that may be entered into between Landlord and such bona
fide purchaser shall provide that the sale of the fee shall be subject to
Tenant's right of first refusal as set forth hereafter; such sale shall be
subject to this Lease and shall be so affirmed by the purchaser. In the event
that Landlord receives a written offer or executes a contract as above set
forth, Tenant shall have the option, to be exercised within sixty (60) days
after receipt by Tenant of written notice of the terms of such offer, to enter
into a contract with Landlord, and Landlord agrees to enter into such contract
with Tenant, on the same terms and conditions as said offer to purchase.
Notwithstanding anything in this Lease to the contrary, Landlord shall not
entertain or consider any offers from any other party to purchase the Demised
Premises during the last year of the term hereof.
15.2 Landlord shall submit a duplicate original of the executed
contract embodying all of the terms and conditions of said executed contract to
Tenant for such purpose. If, after the receipt of such notice, Tenant fails to
exercise its option by signing and returning within the sixty-day period a copy
of said contract to Landlord together with the down payment therein provided,
Landlord shall have the right to conclude the proposed sale on the same terms,
and no other, as in the offer or contract originally forwarded to Tenant.
Notwithstanding Tenant's failure to exercise such option, Tenant's option shall
remain in force and be binding on any subsequent owner of owners of the Demised
Premises, in connection with any subsequent sale to the same extent as if said
subsequent owner or owners were Landlord herein, and said subsequent
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owner or owners shall be required to do all of the things required of Landlord
in this Lease prior to any such sale of the Demised Premises.
ARTICLE XVI
SURRENDER
16.1 Upon the termination of this Lease, whether by forfeiture,
lapse of time or otherwise, or upon the termination of Tenant's right to
possession of the Demised Premises, Tenant will at once surrender and deliver
up the Demised Premises, together with all improvements thereon which are the
property of Landlord, to Landlord in good condition and repair, ordinary wear
and tear excepted, subject, however, to the provisions of Article IX hereof.
16.2 Upon the termination of the Lease by lapse of time, Tenant may
remove Tenant's trade fixtures and all of Tenant's personal property and
equipment; provided, however, that Tenant shall repair any injury or damage
which may result from such removals.
16.3 Any holding over by Tenant of the Demised Premises after the
expiration of this Lease shall operate and be construed to be a tenancy from
month to month only at a monthly rental of One Hundred Fifty percent (150%) of
the rate of rent (as adjusted pursuant to Article II hereof) payable hereunder
for the Lease term.
ARTICLE XVII
COMPLIANCE WITH LAW;
ENVIRONMENTAL CONCERNS
17.1 Tenant shall comply in all material respects with all laws,
ordinances, and regulations of duly constituted public authorities now or
hereafter in any manner materially affecting the Demised Premises and the use
and occupation thereof. Tenant shall have the right in its name or (wherever
necessary) Landlord's name, to contest the validity or enforcement of any law,
ordinance, order, regulation, or requirement affecting the Demised Premises or
the operation thereof and may defer compliance therewith provided that: (i)
Tenant shall diligently prosecute such contest to binding settlement, or final
determination by,
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the court department, or governmental authority or body having jurisdiction in
the matter; and (ii) Tenant shall save and hold Landlord harmless against
violation by Tenant of any such law, order, ordinance, rule, or regulation.
17.2 Landlord shall cooperate with Tenant and execute any documents
or pleadings required for such purpose, and Tenant agrees to save and hold
Landlord harmless against any liability, claim, or expense in connection
therewith.
17.3 As used herein, the term "Hazardous Material" means any
hazardous, toxic or dangerous waste, sub- stance or material defined as such in
(or for purposes of) the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, any so-called "Superfund" or "Superlien"
law, or any other federal, state or local statute, law, ordinance, code, rule,
regulation, order or decree regulating, relating to or imposing liability or
standards on conduct concerning any hazardous, toxic or dangerous waste,
substance or material, as now or at any time hereafter in effect.
17.4 Tenant shall pay, protect, indemnify and save harmless Landlord
from and against any and all liabilities, losses, damages, costs, expenses
(including without limitation reasonable attorneys' fees and expenses), causes
of action, suits, claims, demands, fines or judgments of any and every nature
whatsoever (collectively, "Indemnifiable Damages") arising from or in any way
relating to Tenant's use of the Demised Premises (or use by any person claiming
under Tenant) from and after the commencement of the term hereof through the
expiration or earlier termination of this Lease. Without limiting the
foregoing, Tenant agrees, to the maximum extent permitted by law, to indemnify,
defend and save Landlord harmless from and against any and all Indemnifiable
Damages which (i) are asserted against Landlord by any person or entity or
incurred by Landlord by reason of the application to the Demised Premises of
statutes imposing liability or standards of conduct concerning Hazardous
Materials, provided that the Indemnifiable Damages result during the term
hereof from any act or failure to act of Tenant or of any person claiming under
Tenant or of any customer, employee, agent or invitee of Tenant or any such
person, or (ii) result from the presence upon the Demised Premises of or the
release from the Demised Premises, during the term hereof, of any Hazardous
Materials, or (iii) result from the failure of Tenant to obtain all necessary
permits, registrations or authorizations for the use or operation of the
Demised Premises as required under the provisions of any such statute. The
foregoing indemnification shall apply regardless of whether such Indemnifiable
Damages are founded upon municipal,
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state or federal common, regulatory, statutory or equitable laws, rules or
principles and the term "statute" as used herein shall be deemed to include all
such laws, rules and principles. Indemnifiable Damages shall exclude any and
all and all liabilities, losses, damages, costs, expenses (including without
limitation attorneys' fees and expenses), causes of action, suits, claims,
demands, fines or judgments of any and every nature whatsoever arising out of
or relating to violations, alleged violations, matters or circumstances
existing prior to the commencement of this Lease, or arising out of or relating
to violations, alleged violations, matters or circumstances arising after the
term hereof.
17.5 The obligations of Tenant under Section 17.4 shall survive any
termination of this Lease for all events described in Section 17.4 which are
proven to occur after the commencement of and prior to the termination of this
Lease.
ARTICLE XVIII
MISCELLANEOUS
18.1 None of the covenants and agreements of this Lease to be kept
and performed by either party shall in any manner be altered, waived, modified,
changed or abandoned except by a written instrument, duly signed, acknowledged
and delivered by the other party; and no act or acts, omission or omissions or
series of acts or omissions, or waiver, acquiescence or forgiveness of Landlord
as to any default in or failure of performance, either in whole or in part, by
Tenant, or any of the covenants and agreements of this Lease, shall be deemed
or construed to be a waiver by Landlord of the right at all times thereafter to
insist upon the prompt, full and complete performance by Tenant of each and all
the covenants and agreements hereof thereafter to be performed in the same
manner and to the same extent as the same are herein covenanted to be performed
by Tenant.
18.2 All notices to or demands upon Landlord or Tenant desired or
required to be given under any of the provisions hereof shall be in writing.
Any notices or demands from Tenant to Landlord shall be deemed to have been
duly and sufficiently given if a copy thereof has been mailed by United States
registered or certified mail in an envelope properly stamped and addressed to
Landlord, at 00000 Xxxxx Xxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000, Attention:
Xxxxxx X. Xxxxxxx, or to such other address as Landlord may theretofore have
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furnished by written notice to Tenant, and any notices or demands from Landlord
to Tenant shall be deemed to have been duly and sufficiently given if mailed by
United States registered mail or certified mail in an envelope properly stamped
and addressed to Tenant c/o Ivex Packaging Corporation, 000 Xxx-Xxxxx Xxxxx,
Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxx 00000, Attention: G. Xxxxxxx Xxxxxxxxx, Vice
President & General Counsel, or at such other address as Tenant may theretofore
have furnished by written notice to Landlord.
18.3 Landlord may enter the Demised Premises at any time for the
purpose of inspecting same, or if making repairs which Tenant may neglect or
refuse to make in accordance with the covenants and agreements of this Lease,
and also for the purpose of showing the Demised Premises to persons wishing to
purchase the same or at any time within one (1) year prior to the expiration of
the Lease term, to persons wishing to rent the Demised Premises. Tenant shall,
within one (1) year prior to the expiration of the Lease term, permit the usual
notice of "To Let" or "For Sale" to be placed on the Demised Premises and to
remain thereon without molestation.
18.4 This Lease shall not be recorded, but Landlord and Tenant agree
to execute a Memorandum of Lease in the form of Exhibit C attached hereto upon
the execution of this Lease, and such memorandum may be recorded with the
County Recorder, Lorain County, Ohio, at Tenant's sole cost and expense.
18.5 Time is of the essence of this Lease, and all provisions herein
relating thereto shall be strictly construed.
18.6 The parties warrant and represent that there are no real estate
brokers involved and that there are no commissions due to anyone arising out of
this transaction.
18.7 Landlord acknowledges that Trio has made certain
representations and warranties to and covenants with Tenant under the Asset
Purchase Agreement and other agreements executed in connection therewith,
including the retention of certain liabilities, the violation or breach of
which, or failure to comply with, shall entitle Tenant to set-off payments due
Landlord hereunder.
18.8 Nothing contained herein shall be deemed or construed by the
parties hereto, nor by any third party, as creating the relationship of
principal and agent, of partnership or of joint venture between or among the
parties hereto,
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it being understood and agreed that no provision contained in this Lease, nor
any acts of the parties hereto, shall be deemed to create any relationship
other than the relationship of Landlord and Tenant.
18.9 The captions of this Lease are for convenience only and are not
to be construed as part of this Lease or as defining or limiting in any way the
scope or intent of the provisions hereof.
18.10 If any term or provision of this Lease shall to any extent be
held invalid or unenforceable, the remaining terms and provisions of this Lease
shall not be affected thereby, but each term and provision of this Lease shall
be valid and be enforced to the fullest extent permitted by law.
18.11 This Lease shall be construed and enforced in accordance with
the laws of the State of Ohio.
18.12 All of the covenants and agreements contained in this Lease
shall extend, inure to and be binding upon the successors and assigns of the
respective parties hereto, the same as if they were in every case specifically
named, and wherever in this Lease reference is made to either of the parties
hereto, it shall be held to include and apply to, wherever applicable, the
successors and assigns of such party. Nothing herein contained shall be
construed to grant or confer upon any person or persons, firm, corporation or
governmental authority other than the parties hereto, their successors and
assigns, any right, claim or privilege by virtue of any covenant and agreement
in this Lease contained.
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IN WITNESS WHEREOF, the parties have executed this Lease in duplicate
the day and year first above written.
Signed in the LANDLORD:
presence of:
_________________________________
Print Name: Xxxxxx X. Xxxxxxx
_________________________
Print Name:
Signed in the TENANT:
presence of:
_________________________ TRIO ACQUISITION, INC.,
Print Name: a Delaware corporation
_________________________ By:______________________________
Print Name: Its:__________ President
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This instrument prepared by:
Xxxxxxx Xxxxx, Esq.
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
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STATE OF ___________________
COUNTY OF __________________
Before me, a Notary Public in and for said County and State,
personally appeared the above-named XXXXXX X. XXXXXXX, who acknowledged that he
did sign the foregoing instrument on his behalf, and that the same is his free
act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official
seal on this ____ day of September, 1996.
_____________________________________
Notary Public
STATE OF ___________________
COUNTY OF __________________
Before me, a Notary Public in and for said County and State,
personally appeared the above-named TRIO ACQUISITION, INC., by
________________________, who acknowledged that he did sign the foregoing
instrument for and on behalf of said corporation, and that the same is the free
act and deed of said corporation and his free act and deed individually and as
such officer.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official
seal on this ____ day of September, 1996.
_____________________________________
Notary Public
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EXHIBIT A
Legal Description
PARCEL NO. 1
Situated in the City of Elyria, County of Lorain and State of Ohio and
further described as follows:
Beginning at an iron pin on the Northeasterly corner of Warden Avenue
and Xxxxx Street as recorded in Volume 9, Page 27 of the Lorain County Record
of Plats; thence Easterly along the Northerly line of Warden Avenue a distance
of 23 feet to an iron pin which is the principal place of beginning of lands
described herein; thence Northerly** a distance of 591.00 feet to an iron pin
located on the old City of Elyria Corporation Line, vacated and extended in
1958; thence along the old corporation line in a Westerly direction, a distance
of 365 feet to an iron pin on said line; thence*** in a Southerly direction a
distance of 591.00 feet to an iron pin on the Northerly line of Warden Avenue;
thence along the Northerly line of Warden Avenue a distance of 365 feet to the
principal place of beginning, said parcel containing 5.380 acres of land, more
or less, and is part of Original Lot 34 West of Black River and part of Garden
Acres Allotment as recorded in Volume 9, Page 27 in the Lorain County Record of
Plats.*
* The 5.380 Acres of land described herein includes Sublots 1 through 6
in Block 8 & the Westerly 23 feet of Sublot 1 in Block 9 of the Garden
Acres Allotment as shown in Vol. 9, Page 27, Lorain County Records of
Plats, & 4.22 Acres of Elyria Twp. Orig. Xxx 00 Xxxx xx Xxxxx Xxxxx.
** Parallel to the Easterly line of Xxxxx Street extended Northerly.
*** Parallel to the Easterly line of premises described herein.
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PARCEL NO. 2
All of the Grantor's right, title and interest in and to a perpetual
easement across, on and within the premises described below for the purpose of
constructing, using, maintaining and keeping in repair a railroad siding from
B. & O. Railroad line to the above-described Parcel Number 1:
Being a twenty-five (25) foot wide easement across lands now or
formerly owned by Xxxxxx Xxxxxx, situated in part of Outlot 34 West of Black
River, of the Original Elyria Township, now a part of the Northern area of the
City of Elyria, bounded on the South by Warden Avenue, on the West by the
Baltimore & Ohio Railroad Company's CL & W Branch line railroad, on the North
by the Old Corporation Line of the City of Elyria, and on the East by property
granted to Xxxxxx X. Xxxxxxx in Deed recorded in Volume 864, Page 511 of Lorain
County Deed Records.
Beginning at a point on the center line of the side track easement in
the East property line of the said railroad and measured S 14 degrees
32' 30" E three hundred thirty-two and ninety-three hundredths (332.93) feet
from the intersection on the Old Corporation Line (being the North line of
Xxxxxx Xxxxxx) with the East property line of the said railroad, thence the
easement curves to te right with a center line radius of three hundred
fifty-nine and twenty-six hundredths (359.26) feet (a 16 degree railroad
calculation curve) for a distance of the five hundred thirteen and forty-three
hundredths (513.43) feet to the end of the curve, said curve having a chord
bearing of N 48 degrees 48' 32" for a length of four hundred seventy-two and
one-tenth (472.10) feet, thence by a line tangent to the curve, parallel and
twelve and five-tenths (12.5) feet South of the Old Corporation Line (Xxxxxx'x
North line) N 89 degrees 53' E for a distance of three hundred four and fifteen
hundredths (304.15) feet to Xxxxxx X. Xxxxxxx'x and Xxxxxx Xxxxxx'x property
division line, above describing the center line of a twenty-five (25) foot wide
easement for a railroad siding containing an area of twenty thousand four
hundred forty square feet more or less.
32
EXHIBIT B
Purchase Agreement
33
EXHIBIT C
Memorandum of Lease
34
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE is made and entered into as of the 11th day of
September, 1996, by and between XXXXXX X. XXXXXXX ("Landlord"), and TRIO
ACQUISITION, INC., a Delaware corporation ("Tenant").
BACKGROUND
A. Landlord and Tenant have heretofore entered into that certain
Lease, dated as of September __, 1996 (the "Lease"), whereby Landlord leased to
Tenant certain real property and improvements thereon commonly known as 000
Xxxxxx Xxxxxx, Xxxxxx, Xxxx 00000, together with a certain easement, and all
rights, privileges and appurtenances thereto as hereinafter described.
B. Landlord and Tenant desire to record a Memorandum of Lease as
herein set forth for purposes of giving notice of the Lease and certain of its
terms and conditions.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, for and in consideration of the sum of Ten Dollars ($10.00) and for
other good and valuable consideration, the receipt and legal sufficiency of
which are hereby acknowledged, do hereby covenant and agree as follows:
1. Landlord: The Landlord under the Lease is: XXXXXX X.
XXXXXXX.
2. Tenant: The Tenant under the Lease is: TRIO ACQUISITION,
INC., a Delaware corporation.
3. Landlord's Address: Landlord's address is: 00000 Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000.
4. Tenant's Address: Tenant's address is: c/o Ivex Packaging
Corporation, 000 Xxx-Xxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxx 00000,
Attention: G. Xxxxxxx Xxxxxxxxx, Vice President & General Counsel.
35
5. Demised Premises: Landlord has demised and leased to Tenant
certain real property and improvements thereon commonly known as 000 Xxxxxx
Xxxxxx, Xxxxxx, Xxxx 00000 (the "Real Estate"), together with the easement
created by that certain Easement granted by Xxxxxx Xxxxxx, Inc. in favor of
Landlord, dated December 18, 1963, recorded in Lorain County on January 6,
1964, in Deed Volume 864 Page 513, and known as Recorders's File No. 644175
(the "Easement"), a legal description of the Real Estate and the Easement are
attached hereto as Exhibit A and made a part hereof, together with all rights,
privileges and appurtenances thereto (together with the Real Estate and the
Easement, collectively hereinafter called the "Demised Premises").
6. Term: The initial term of the Lease commenced on September
11, 1996 and shall continue until September 30, 2001, subject to Tenant's right
to renew the term of the Lease for an additional five (5) years.
7. Purchase Option: Tenant has the right to purchase the Demised
Premises at any time during the term of the Lease, as the same may be renewed.
8. Right of First Refusal: Tenant has the right of first refusal
if Landlord receives a bona fide offer to purchase all or any portion of the
Demised Premises at any time during the term of the Lease, as the same may be
renewed.
9. Notice: This Memorandum of Lease does not set forth all of
the material terms or conditions of the Lease. This Memorandum of Lease is not
intended to, and does not and shall not, amend, modify, diminish or affect in
any way the Lease or the construction or interpretation thereof or any rights
or obligations of any of the parties thereto. The sole purpose of this
Memorandum of Lease is to give notice of the Lease and of certain of its terms,
covenants and conditions.
10. Miscellaneous: This Memorandum of Lease shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
2
36
IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease
in duplicate the day and year first above written.E
Signed in the LANDLORD:
presence of:
_________________________ ____________________________
Print Name: Xxxxxx X. Xxxxxxx
_________________________
Print Name:
Signed in the TENANT:
presence of:
_________________________ TRIO ACQUISITION, INC.,
Print Name: a Delaware corporation
_________________________ By: ____________________
Print Name: Its: _____ President
3
37
This instrument prepared by:
Xxxxxxx Xxxxx, Esq.
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
38
STATE OF ___________________
COUNTY OF __________________
Before me, a Notary Public in and for said County and State, personally
appeared the above-named XXXXXX X. XXXXXXX, who acknowledged that he did sign
the foregoing instrument on his behalf, and that the same is his free act and
deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal on
this ____ day of September, 1996.
______________________________
Notary Public
STATE OF ___________________
COUNTY OF __________________
Before me, a Notary Public in and for said County and State, personally
appeared the above-named TRIO ACQUISITION, INC., by ________________________,
who acknowledged that he did sign the foregoing instrument for and on behalf of
said corporation, and that the same is the free act and deed of said
corporation and his free act and deed individually and as such officer.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal on
this ____ day of September, 1996.
______________________________
Notary Public
39
EXHIBIT A
Legal Description
PARCEL NO. 1
Situated in the City of Elyria, County of Lorain and State of Ohio and
further described as follows:
Beginning at an iron pin on the Northeasterly corner of Warden Avenue
and Xxxxx Street as recorded in Volume 9, Page 27 of the Lorain County Record
of Plats; thence Easterly along the Northerly line of Warden Avenue a distance
of 23 feet to an iron pin which is the principal place of beginning of lands
described herein; thence Northerly** a distance of 591.00 feet to an iron pin
located on the old City of Elyria Corporation Line, vacated and extended in
1958; thence along the old corporation line in a Westerly direction, a distance
of 365 feet to an iron pin on said line; thence*** in a Southerly direction a
distance of 591.00 feet to an iron pin on the Northerly line of Warden Avenue;
thence along the Northerly line of Warden Avenue a distance of 365 feet to the
principal place of beginning, said parcel containing 5.380 acres of land, more
or less, and is part of Original Lot 34 West of Black River and part of Garden
Acres Allotment as recorded in Volume 9, Page 27 in the Lorain County Record of
Plats.*
* The 5.380 Acres of land described herein includes Sublots 1 through 6
in Block 8 & the Westerly 23 feet of Sublot 1 in Block 9 of the Garden
Acres Allotment as shown in Vol. 9, Page 27, Lorain County Records of
Plats, & 4.22 Acres of Elyria Twp. Orig. Xxx 00 Xxxx xx Xxxxx Xxxxx.
** Parallel to the Easterly line of Xxxxx Street extended Northerly.
*** Parallel to the Easterly line of premises described herein.
40
PARCEL NO. 2
All of the Grantor's right, title and interest in and to a perpetual
easement across, on and within the premises described below for the purpose of
constructing, using, maintaining and keeping in repair a railroad siding from
B. & O. Railroad line to the above-described Parcel Number 1:
Being a twenty-five (25) foot wide easement across lands now or
formerly owned by Xxxxxx Xxxxxx, situated in part of Outlot 34 West of Black
River, of the Original Elyria Township, now a part of the Northern area of the
City of Elyria, bounded on the South by Warden Avenue, on the West by the
Baltimore & Ohio Railroad Company's CL & W Branch line railroad, on the North
by the Old Corporation Line of the City of Elyria, and on the East by property
granted to Xxxxxx X. Xxxxxxx in Deed recorded in Volume 864, Page 511 of Lorain
County Deed Records.
Beginning at a point on the center line of the side track easement in
the East property line of the said railroad and measured S 14 degrees
32' 30" E three hundred thirty-two and ninety-three hundredths (332.93) feet
from the intersection on the Old Corporation Line (being the North line of
Xxxxxx Xxxxxx) with the East property line of the said railroad, thence the
easement curves to te right with a center line radius of three hundred
fifty-nine and twenty-six hundredths (359.26) feet (a 16 degree railroad
calculation curve) for a distance of the five hundred thirteen and forty-three
hundredths (513.43) feet to the end of the curve, said curve having a chord
bearing of N 48 degrees 48' 32" for a length of four hundred seventy-two and
one-tenth (472.10) feet, thence by a line tangent to the curve, parallel and
twelve and five-tenths (12.5) feet South of the Old Corporation Line (Xxxxxx'x
North line) N 89 degrees 53' E for a distance of three hundred four and fifteen
hundredths (304.15) feet to Xxxxxx X. Xxxxxxx'x and Xxxxxx Xxxxxx'x property
division line, above describing the center line of a twenty-five (25) foot wide
easement for a railroad siding containing an area of twenty thousand four
hundred forty square feet more or less.
