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EXHIBIT 10.84
THIS LEASE effective as of the 12th day of January, 1999
(the "Lease") between XXXXXXXX INVESTORS, an Ohio general
partnership (the "Lessor"), having and address in care of Xxxxxxx
Xxxxxxxx, General Partner, at 0000 Xxxxxxxx, Xxxxxx, Xxxx 00000
and TPSS ACQUISITION CORPORATION, an Ohio corporation (the
"Lessee"), having an address at 00000 Xx. Xxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000.
1. Premises; Title and Condition.
In consideration of the rents and covenants herein
stipulated to be paid and performed by Lessee and upon the terms
and conditions herein specified, Lessor hereby leases to Lessee,
and Lessee hereby leases from Lessor, the premises (the
"Premises") consisting of the land (the "Land") described on
Schedule A, all buildings and other improvements now or hereafter
located or under construction on the Land (the "Improvements"),
the equipment described on Schedule B (the "Equipment") and the
respective easements, rights and appurtenances relating to the
Land and the Improvements. Subject to the terms and conditions
of this Lease, the Premises are leased to Lessee in their "AS IS"
present condition without representation or warranty by Lessor,
and subject to the rights of parties in possession and to the
existing state of title.
2. Use.
Lessee may use the Premises for the operation of a steel
service center and shall not use the same for any other purpose
absent the prior written consent of Lessor.
3. Quiet Enjoyment.
So long as no event of default has occurred and is
continuing hereunder, Lessor warrants that neither Lessor nor
anyone claiming by, through, or under Lessor shall interfere with
the peaceful and quiet occupation and enjoyment of the Premises
by Lessee. However, Lessor and its agents may, upon twenty-four
(24) hours prior notice to Lessee, enter upon and examine the
Premises, and may show the Premises to prospective purchasers,
mortgagees or tenants so long as such examination or showing
shall not unreasonably interfere with the business operations of
Lessee or subtenants on the Premises.
4. Term.
Subject to the terms of this Lease, Lessee shall hold the
Premises for:
A. An initial term (the "Initial Term") beginning on
the date hereof, and ending at midnight on December 31, 2003.
B. Thereafter, if Lessee shall not be in default
hereunder, Lessee shall have the option to extend the term of
this Lease for two consecutive option terms of five years each
(the "Option Terms"). Lessee shall exercise each option to
extend by giving written notice to Lessor at least one hundred
eighty (180) days prior to the end of the term then in effect.
If Lessee shall fail to give such notice, or if an Event of
Default exists at the time of the giving of such notice or at the
time an Option Term would otherwise begin, then this Lease shall
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automatically terminate at the end of the term (Initial or
Option) then in effect, and Lessee shall have no further option
to extend this Lease.
5. Rent; Additional Rent.
A. For the Initial Term Lessee shall pay to Lessor as
base rent ("Base Rent") for the Premises the sum of One Million
Nine Hundred Forty-Four Thousand Dollars ($1,944,000.00) which
shall be due and payable as follows: (i) for the first two years
of the Initial Term, the sum of Seven Hundred Twenty Thousand
Dollars ($720,000.00) payable in twenty-four (24) consecutive
equal monthly installments in the amount of Thirty Thousand
Dollars ($30,000.00) each due in advance on the first day of each
month commencing on the date hereof; (ii) for years three, four
and five of the Initial Term, the sum of One Million Two Hundred
Twenty-Four Thousand Dollars ($1,224,000.00) payable in thirty-
six (36) consecutive equal monthly installments in the amount of
Thirty-Four Thousand Dollars ($34,000.00) each due in advance on
the first day of each month commencing on the first day of the
twenty-fifth (25th) month of the Initial Term. Notwithstanding
the foregoing, the first rent payment shall be due and payable on
the date hereof in an amount which shall be prorated on the basis
of the number of days remaining in December, 1998.
B. Base Rent for the first Option Term shall be
adjusted for the first year of such Option Term by (i) dividing
the annual rental for the prior lease year (i.e. $408,000.00) by
the index number in the line for "All items" in the Table
entitled d-1, Consumer Price Index - All-city average; all items
groups, subgroups and special groups of items, published monthly
in the "Monthly Labor Review" as part of the Labor Statistics of
the United States Department of Labor for the latest date noted
in the issue of said "Monthly Labor Review" published for the
month next preceding the month during which the Initial Term of
this Lease commenced, and (ii) subsequently multiplying that
amount by the index for the month next preceding the first month
of the Option Term. Thereafter upon each anniversary of the
commencement of the Option Term (including, if applicable, upon
exercise of the second five year option and on each anniversary
thereof) the Base Rent for the next lease year shall be adjusted
as follows: The annual rental for the prior lease year shall be
divided by the index number in the line for "All items" in the
Table entitled d-1, Consumer Price Index - All-city average; all
items groups, subgroups and special groups of items, published
monthly in the "Monthly Labor Review" as part of the Labor
Statistics of the United States Department of Labor for the
latest date noted in the issue of said "Monthly Labor Review"
published for the month next preceding the month during which the
prior lease year commenced and subsequently multiplying that
amount by the index for the month next preceding the first month
of the lease year for which the computation is being made. In
the event that the Bureau of Labor shall change the base period
(1957-59=100), the new index shall be substituted for the old
index. In no event shall rent decrease at any time.
C. All amounts (other than Base Rent) which Lessee is
required to pay pursuant to this Lease shall constitute
additional rent. If Lessee shall fail to pay any such additional
rent or any other sum due hereunder when due, Lessor shall have
all the rights, powers, and remedies with respect thereto as are
provided herein or by law in the case of non-payment of Base
Rent. Lessee shall pay to Lessor on demand interest at the rate
of twelve percent (12%) per annum, or at the highest rate
permitted by law, whichever is less, on all overdue Base Rent or
additional rent from the due date thereof until paid. Lessee
shall perform all of its obligations under this Lease at its sole
cost and expense, and shall pay all Base Rent and additional rent
and other sums due hereunder when due and payable, without
notice, setoff or demand, unless mutually agreed to the contrary.
D. In addition, Lessee agrees to pay the sum of
Thirty Thousand Dollars ($30,000.00) to Lessor, as a security
deposit for the faithful performance of the commitments contained
in this Lease. It is agreed that the security deposit may be
applied, at the discretion of the Lessor to cure any default of
the terms or covenants of this Lease. If the damages shall
exceed the security deposit, the Lessee agrees to reimburse
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Lessor for the same upon billing thereof. In the event Lessor
applies the security deposit in whole or part and elects not to
terminate this Lease by reason of default, the Lessee shall
restore the security deposit to its full amount within ten (10)
days after written notice from Lessor. No application of the
security deposit to cure any default of the terms and covenants
of this Lease shall constitute a waiver of such default. The
remedies hereunder are cumulative and in addition to all others
allowable at law or equity. The security deposit shall be
returned to Lessee upon the termination of this Lease.
6. Net Lease.
A. This lease is a net net net lease and except as
expressly provided otherwise in this Lease, Lessee shall be
responsible for (i) all maintenance, repair and replacements,
both structural (subject to the provisions of Section 10 hereof)
and non-structural; (ii) all real estate taxes and assessments
(general and special) and any similar impositions; (iii)
insurance with such coverages and limits as are provided for in
this Lease; and (iv) each and every other cost or expense arising
in connection with the Premises.
B. Any present or further law to the contrary
notwithstanding, this Lease shall not terminate except as
specifically provided herein. The parties intend that the
obligations of Lessee hereunder shall be separate and independent
covenants and agreements and shall continue unaffected unless its
obligations shall have been modified or terminated pursuant to an
express provision of this Lease.
C. Lessee shall remain obligated under this Lease in
accordance with its terms, and shall not take any action to
terminate, rescind or avoid this Lease, notwithstanding any
bankruptcy, insolvency, reorganization, liquidation, dissolution
or other proceeding affecting Lessor, or any assignee or Lessor,
or any action with respect to this Lease which may be taken by
any trustee, receiver or liquidator or by any court.
7. Taxes and Assessments; Compliance With Law.
A. Lessee shall pay, prior to delinquency: (i) all
taxes, assessments, levies, fees, and other governmental charges
which are at any time imposed or levied upon or assessed against
the Premises, any Base Rent, additional rent or other sum payable
hereunder, or against the Lease, or the leasehold estate hereby
created or which arises in respect of the operation, possession
or use of the Premises; (ii) all gross receipts or similar taxes
imposed or levied upon, assessed against or measured by any Base
Rent, or any additional rent or other sum payable hereunder;
(iii) all sales, value added, use and similar taxes at any time
levied, assessed or payable on account of the leasing or use of
the Premises; and (iv) all charges of utilities and
communications services serving the Premises; provided however,
that Lessee shall not in any event be responsible for any of the
foregoing amounts accruing but not payable prior to the date of
this Lease or for any taxes or other amounts owing by Lessor
unrelated to the Premises, and Lessee will furnish to Lessor
promptly after demand therefor, proof of payment of all items
referred to above which are payable by Lessee. Notwithstanding
the foregoing, Lessee shall pay all the items referred to in
subsections A(i) through (iii) above relative to the Premises
that are billed after the date hereof and payable prior to the
termination (but in any event prorated in the event of any
termination or expiration hereof other than by reason of Lessee's
default); provided, however, it is intended that Lessee shall not
be responsible for payment of an amount in the aggregate which
exceeds the product obtained by multiplying 1/12th of the annual
amount of such items times the number of months during the term
hereof prorated for any partial month. Lessor shall provide all
bills and statements related to the real estate taxes and items
to be paid by Lessee to the Lessee within five (5) days of
Lessor's receipt of same and Lessee shall not be responsible for
any late charges or penalties caused by Lessor's failure to
provide such bills and statements in a timely fashion. In the
event of an early termination or expiration of this Lease (other
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than by reason of Lessee's default) Lessee may deduct from the
final month's (or two months', if necessary) base rents and other
amounts due to Lessor hereunder, any proration due Lessee by
reason of application of the foregoing provisions.
B. Lessee shall comply with and cause the Premises to
comply with (i) all laws, ordinances and regulations, and other
governmental rules, orders and determinations now or hereafter
enacted, applicable to the Premises or the use thereof, and (ii)
all contracts, agreements, covenants, conditions and restrictions
applicable to the Premises or the ownership, occupancy or use
thereof. However, Lessee shall not be required to comply with
any such contracts, agreements, covenants, conditions or
restrictions affecting the Premises if entered into on or after
the commencement date of this Lease unless Lessee has consented
thereto. Lessor shall indemnify, defend, and hold harmless
Lessee, its officers, directors, beneficiaries, shareholders,
partners, and agents from all fines, suits, procedures, claims,
and actions of every kind and all costs associated therewith
(including reasonable attorneys' and consultants' fees) arising
out of or in any way connected with (i) any deposit, spill,
discharge, or other release of Hazardous Substances by Lessor
that occurs during the term of the Lease and as extended (other
than fines, suits, procedures, claims, and actions for which
Lessee is liable under Section 17 hereof), and (ii) any other
actions of Lessor which are in violation of laws, ordinances or
regulations.
8. Liens.
Subject to the terms and provisions of Section 16 hereof,
Lessee shall, within thirty (30) days after notice from Lessor,
remove and discharge any charge, lien, security interest or
encumbrance upon the Premises or Base Rent, or any additional
rent or other sum payable hereunder which arises during the term
of this Lease, except for (i) those charges, liens, security
interests and encumbrances existing on the date of this Lease or
arising as a result of events or circumstances existing prior to
the date hereof, and (ii) charges by Lessor and any mortgage,
charge, lien, security interest or encumbrance created as a
result of actions by Lessor after the date of this Lease without
the consent of Lessee. Lessor warrants and represents to Lessee
that Lessor as of the date hereof is not in default under any of
its obligations under any mortgage on the premises as of the date
hereof.
9. Indemnification.
Lessee shall defend all actions accruing after the date of
this Lease, against Lessor and any officer, director or
shareholder of Lessor, and shall pay, protect, indemnify and save
harmless Lessor, and any officer, director or shareholder of any
of Lessor from and against any and all liabilities, losses,
damages, costs, expenses (including reasonable attorney fees and
expenses), causes of action, suits, claims, demands or judgments
of any nature to which Lessor, or any officer, director of
shareholder of Lessor is subject because of Lessor's estate in
the Premises, or arising from (i) injury to or death of any
person, or damage to or loss of property on the Premises or on
adjoining sidewalks, streets or ways, or connected with the use,
condition or occupancy of any thereof, (ii) violation of this
Lease by Lessee, and (iii) any act or omission of Lessee or its
agents, contractors, licensees, sublessees or invitees.
10. Maintenance and Repair.
Throughout the term of this Lease, Lessee at its expense
will maintain, repair and replace all portions and components
(whether structural or non-structural) of the Premises and keep
the same in good repair and condition; provided, however, that
Lessee shall have no responsibility for any structural repair
arising as the result of any action or non-action prior to the
date hereof, including conditions existing on the date hereof.
11. Alterations; Lessee's Equipment.
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Lessee may, at its expense, make non-structural alterations
and Improvements provided that (i) the market value of the
Premises shall not be lessened thereby, (ii) such work shall be
expeditiously completed in a good and workmanlike manner and in
compliance with all applicable legal requirements and the
requirements of all insurance policies required to be maintained
by Lessee hereunder, and (iii) the character and use of the
Premises shall not be materially changed as a consequence
thereof. Lessee shall make no structural alterations or
construct any additions to the Improvements without first having
obtained the written consent of Lessor. Lessor may engage an
architect or other professional to assist in evaluating any
request by Lessee for approval of structural alteration or
addition, in which case Lessor shall pay the fees of such
architect or professional as additional rent. All additions and
alterations shall be and remain part of the realty and the
property of Lessor, and shall be subject to this Lease.
Lessee may place upon the Premises any trade fixtures,
machinery, equipment, materials, inventory, furniture, computers
and/or other personal property belonging to Lessee or third
parties, whether or not the same shall be affixed to the
Premises, which are used in connection with any of Lessee's
business operations on the Premises, and may remove the same at
any time during the term of this Lease provided such removal does
not cause any irreparable harm. Lessee shall repair any damage
to the Premises caused by such removal. It is understood and
agreed that the Equipment will not be removed from the Premises
by Lessee without the consent of the Lessor, which consent shall
not be unreasonably withheld.
12. Condemnation and Casualty.
A. Lessee hereby irrevocably assigns to Lessor any
award, compensation or insurance payment to which Lessee may
become entitled by reason of Lessee's interest in the Premises
(i) if the use, occupancy or title of the Premises or any part
thereof is taken, requisitioned or sold in, by or on account of
any actual or threatened eminent domain proceeding or the action
by any person having the power of eminent domain, or (ii) if the
Premises or any part thereof are damaged or destroyed by fire,
flood or other casualty. Lessee shall, promptly upon obtaining
knowledge of such damage or destruction, or of any such
proceeding or action for the taking or the Premises or any part
thereof, notify Lessor of the pendency thereof. Lessor may
appear at any proceeding or action to negotiate, prosecute and
adjust any claim for any award, compensation or insurance payment
on account of any such damage, destruction, taking, requisition
or sale, and Lessor shall collect any such award, compensation or
insurance payment. All amounts paid in connection with any such
damage, destruction, taking, requisition or sale shall be applied
pursuant to this paragraph, and all such amounts (minus the
expense of collecting such amounts) are herein called the Net
Proceeds. Lessor shall pay all reasonable costs and expenses in
connection with each such proceeding, action, negotiation,
prosecution and adjustment, for which costs and expenses Lessor
shall be reimbursed out of any award, compensation or insurance
payment received. Lessee shall be entitled to participate in any
such proceeding, action, negotiation, prosecution or adjustment.
The foregoing notwithstanding, nothing in this Lease shall impair
Lessee's right to any award or payment on account of Lessee's
trade fixtures, equipment and other tangible personal property,
moving expenses and loss of business, if available, to the extent
Lessee shall have a right to make a claim, therefor against the
person having the power of eminent domain, but in no event shall
any such claim be based upon the value of Lessee's leasehold
interest.
B. In the event of any occurrence described in clause
(i) above which does not render the Improvements and Equipment
unsuitable for restoration for continued use and occupancy, or in
the event of any occurrence of the character referred to in
clause (ii) above, Lessee shall, out of and to the extent of the
Net Proceeds collected by Lessor, rebuild, replace or repair any
damage to the Premises caused by such event so as to restore the
Premises (in the case of condemnation, as nearly practicable) to
the condition and market value thereof immediately prior to any
such occurrence. Prior to any such rebuilding, Lessor and Lessee
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shall agree on the maximum cost of such rebuilding (the
"Restoration Cost"). The Restoration Cost shall be paid out of
the Net Proceeds available in connection with such occurrence.
In the event Net Proceeds are insufficient by reason of Lessee's
failure to procure required insurance with adequate limits,
Lessee shall be responsible for any insufficiency. Lessee shall
deliver certificates to Lessor, from time to time as such work of
rebuilding, replacement and repair progresses, each such
certificate describing the work for which payment is requested.
Any portion of the Net Proceeds remaining after final payment has
been made for any such work and after Lessee has been reimbursed
for any portions it contributed to the Restoration Cost, shall be
retained by Lessor in the case of an occurrence of the character
referred to in clause (i), and shall be paid to or at the
discretion of Lessee in the event of an occurrence of the
character referred to in clause (ii). In the event of any
temporary requisition, this Lease shall remain in full effect and
Lessee shall be entitled to receive the Net Proceeds allocable to
the period after the termination of the term of this Lease shall
be paid to Lessor. If the cost of any repairs required to be
made by Lessee pursuant to this paragraph shall exceed the amount
of the Net Proceeds, the deficiency shall be paid by Lessee.
C. In the event an occurrence of the character
referred to in clause (i) above shall affect all or a substantial
portion of the Land and Improvements and shall render the
Improvements unsuitable for restoration for continued use and
occupancy for the purpose set forth in this Lease, Lessee shall
have the option to terminate this Lease, in which event Lessor
shall retain all awards or compensation granted for the
occurrence of such event, except for those awards or
compensations which are payable to Lessee and/or any subtenant as
set forth above.
13. Insurance.
A. Lessee will maintain or cause to be maintained
insurance on the Premises of the following character:
1. Insurance against loss by fire, flood,
lightning, vandalism, malicious mischief or other risks which at
the time are included under "all-risk" policies, in amounts
sufficient to prevent Lessor or Lessee from becoming a co-insurer
of any loss, but in any event in amounts not less than one
hundred percent (100%) of the actual replacement value of the
Improvements, exclusive of foundations and excavation, and the
Equipment.
2. Comprehensive public liability insurance
against claims for bodily injury, death or property damage
occurring on, in or about the Premises and adjoining streets and
sidewalks, in the minimum amounts of Three Million Dollars
($3,000,000.00) for bodily injury or death in any one occurrence,
Three Million Dollars ($3,000,000.00) in the aggregate, and Three
Million Dollars ($3,000,000.00) for property damage, or in such
greater amounts as are then customary for property similar in use
to the Premises.
3. Workers' compensation insurance to the extent
required by the law of the State of Ohio, and to the extent
necessary to protect Lessor and the Premises against workers'
compensation claims.
4. Explosion insurance in respect of any boilers
and similar apparatus located on the Premises in the minimum
amount of Two Hundred Fifty Thousand Dollars ($250,000.00), or in
such greater amounts as are then customary for property similar
in use to the Premises.
5. At any time when construction is being
performed, completed value builder's risk insurance for the
Premises, including building materials on the Premises, covering
loss or damage for fire, lightning, extended coverage perils,
sprinkler leakage, vandalism and malicious mischief and perils
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covered under a difference in conditions policy and in any amount
not less than the final cost, as estimated by Lessee, of such
construction.
6. Such other insurance, in such amounts and
against such risks, as is commonly obtained in the case of
property similar in use to the Premises and located in the State
of Ohio, including war risk insurance when and to the extent
obtainable from the United States government or any agency
thereof.
B. All of the above described insurance shall be
written by companies of nationally recognized financial standing
and legally qualified to issue such insurance, and shall name
Lessor as an additional insured party and shall include any
mortgagee of the Premises, and Lessee, as their interests may
appear. Further, Lessor and/or Lessor's mortgagee shall be made
the loss payee upon all casualty insurance.
Every policy referred to above shall provide that it will
not be canceled or materially modified except after thirty (30)
days written notice to Lessor and all mortgagees of the Premises,
and that it shall not be invalidated by any act or negligence of
Lessor, Lessee or any person or entity having an interest in the
property, nor by occupancy or use of the Premises for purposes
more hazardous than permitted by such policy, nor by any
foreclosure or other proceedings relating to the Premises, nor by
change in title to or ownership of the Premises or Lessor's
interest therein.
C. Lessee shall deliver to Lessor and all mortgagees
of the Premises original or duplicate certificates of insurance
evidencing the existence of all insurance which is required to be
maintained by Lessee hereunder, such delivery to be made (i)
promptly after the execution and delivery hereof, and (ii) at
least thirty (30) days prior to the expiration of any such
insurance. Lessee shall not obtain or carry separate insurance
concurrent in form or contributing in the event of loss with that
required by this section unless Lessor and all mortgagees of the
Premises are named insureds therein, with loss payable as
provided herein.
Lessee shall at all times comply with and cause the Premises
to comply with all insurance policies to the extent necessary to
prevent cancellation thereof and to insure full payment of any
claims made under such policies.
14. Assignment and Subletting.
Lessee may not assign this Lease or sublet any portion of
the Premises, except ot its affiliates, without the prior written
consent of Lessor, which consent shall not be unreasonably
withheld. Any assignee or subtenant shall be bound by all of the
terms and conditions of this Lease, and shall agree to assume
Lessee's responsibilities hereunder. Any assignment or
subletting shall not relieve Lessee from liability for payment of
rent or other sums herein provided or from the obligation to keep
and be bound by the terms, conditions and covenants of this
Lease. The acceptance of rent from any other person shall not be
deemed to be a waiver of any of the provisions of this Lease or
to be a consent to the assignment of this Lease or subletting of
the Premises.
15. Holding Over.
If Lessee shall remain in possession of all or any part of
the Premises after the expiration of the term of this Lease or
any rental thereof, then Lessee shall be deemed a tenant of the
Premises from month to month at Base Rent equal to 110% of the
prior Base Rent and subject to all of the terms and provisions
hereof, except only as to the term of this Lease.
16. Permitted Contests.
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Lessee shall not be required to pay, discharge or remove any
tax, assessment, levy, fee, charge, lien or encumbrance
referenced in Section 8 hereof, or to comply with any legal
requirement applicable to the Premises or the use thereof, so
long as Lessee shall contest or cause to be contested the
existence, amount of validity thereof by appropriate proceedings
which shall prevent the collection of or other realization upon
the tax, assessment, levy, fee, charge or encumbrance so
contested, and which also shall prevent the sale, forfeiture or
loss of the Premises or any Base Rent, any additional rent or any
other sum required to be paid by Lessee hereunder to satisfy the
same or legal requirements, and which shall not affect the
payment of any Base Rent, any additional rent or any other sum
required to be paid by Lessee hereunder. However, such contest
shall not subject Lessor to the risk of any criminal liability or
any material civil liability. Lessee shall give such reasonable
security as may be demanded by Lessor or any mortgagee of the
Premises to ensure ultimate payment of such tax, assessment,
levy, fee, charge, lien or encumbrance and compliance with legal
requirements and to prevent any sale or forfeiture of the
Premises, any Base Rent, any additional rent or any other sum
required to be paid by Lessee hereunder by reason of such non-
payment or non-compliance.
17. Environmental.
A. The term "Hazardous Substance" as used in this
section shall mean any hazardous substance, pollutant,
contaminant or waste regulated under the Comprehensive
Environmental Response, Compensation and Liability Act, as
amended (42 U.S.C. 9601 et. seq.); asbestos and asbestos-
containing materials; oil and petroleum products and natural gas,
natural gas liquids, liquefied natural gas, and synthetic gas
usable for fuel; pesticides regulated under the Federal
Insecticide, Fungicide and Rodenticide Act, as amended (7 U.S.C.
136 et. seq.); PCB's and other substances regulated under Toxic
Substances Control Act, as amended (7 U.S.C. 136 et. seq.);
source material, special nuclear material, byproduct materials,
and any other radioactive materials or radioactive wastes however
produced, regulated under the Atomic Energy Act or the Nuclear
Waste Policy Act; Chemicals subject to the Occupational Safety
and Health Act Hazard Communication Standard (29 U.S.C.
1910.1200 et. seq.); industrial process and pollution control
wastes whether or not hazardous within the meaning of the
Resource Conservation and Recovery Act, as amended (42 U.S.C.
6901 et. seq.); and other substances and materials regulated
under Laws (as defined below) relating to environmental quality,
health, safety, contamination and clean-up. For purposes of this
section, Laws shall mean all laws, statutes, codes, acts,
ordinances, orders, judgments, decrees, injunctions, rules,
regulations, permits, licenses, authorizations, directions and
requirements of all governments, departments, commissions,
boards, courts, authorities, agencies, officials and officers,
foreseen and unforeseen, ordinary and extraordinary, which now or
at any later time may be applicable to the Building or any part
thereof.
B. Lessee, its employees, agents and representatives
shall not cause: (i) any violation of any law related to
environmental conditions on, under, or about the Premises, or
arising from Lessee's use or occupancy of the Premises,
including, but not limited to, soil and ground water conditions;
or (ii) the use, generation, release, manufacture, refining,
production, processing, storage or disposal of any Hazardous
Substances on, under, or about the Premises, or the
transportation to or from the Premises of any Hazardous
Substances other than customary quantities of such Hazardous
Substances customarily used in the operation of Lessee's business
and then only in accordance with all laws.
C. Lessee shall, at Lessee's expense, comply with all
Laws regulating the use, generation, storage, transportation, or
disposal of Hazardous Substances.
D. During the term of this Lease, Lessee shall, at
Lessee's expense, make all submissions to, provide all
information required by, and comply with all requirements of, all
governmental authorities (the "Authorities"); provided, however,
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that Lessee shall not have any responsibility under this
subsection D for information required to be provided which is not
in Lessee's possession or control unless specifically required
due to Lessee's operations.
E. If any Authority of any court demands that a clean-
up plan be prepared and that a clean-up be undertaken because of
any deposit, spill, discharge, or other release of Hazardous
Substances that occurs during the term of this Lease, including
any portion of the term as hereby extended, and which results
from Lessee's use or occupancy of the Premises, then Lessee
shall, at Lessee's expense, prepare and submit the required plans
and all related bonds and other financial assurances; and Lessee
shall carry out all work required by such clean-up plans.
F. Lessee shall promptly provide all information
regarding Lessee's use, generation, storage, transportation or
disposal of Hazardous Substances that is requested by Lessor. If
Lessee fails to fulfill any duty imposed under this section,
within a reasonable time, Lessor may do so; and in such case,
Lessee shall cooperate with Lessor in order to prepare all
documents deemed reasonably necessary or appropriate to determine
the applicability of the Laws to the Leased Premises and Lessee's
use thereof, and for compliance therewith, and Lessee shall
execute all documents promptly upon Lessor's request. No such
action by Lessor and no attempt made by Lessor to mitigate
damages under any Law shall constitute a waiver of any of
Lessee's obligations under this section.
G. Lessee shall indemnify, defend, and hold harmless
Lessor, its officers, directors, beneficiaries, shareholders,
partners, and agents from all fines, suits, procedures, claims,
and actions of every kind and all costs associated therewith
(including reasonable attorneys' and consultants' fees) arising
out of or in any way connected with any deposit, spill,
discharge, or other release of Hazardous Substances that occurs
during the term of the Lease and as extended, and which results
from Lessee's use or occupancy of the Premises, including,
without limitation, from Lessee's failure to provide all
information, make all submissions, and take all actions required
by all Authorities under the Laws, pursuant to subsection D
hereof.
H. Lessee's obligations and liabilities under this
section shall survive the expiration or termination of this
Lease.
18. Option to Purchase.
A. During the Initial Term and any Option Term then
in effect, provided the Lessee is not then in default under this
Lease, Lessee shall have the option to purchase ("Option to
Purchase") the Premises for its fair market value at the date of
the exercise of this Option to Purchase.
B. The Option to Purchase shall be exercised by
Lessee providing written notice of election to exercise which
notice shall be accompanied by a copy of an appraisal of the
Premises obtained by Lessee from an MAI appraiser doing business
in the County of Xxxxx, State of Ohio, and an offer to purchase
from Lessee at no less than the appraised value set forth in such
appraisal. Lessor shall notify Lessee in writing whether the
proposed value is acceptable to Lessor. If the proposed value is
acceptable, then such value shall be the purchase price of the
Premises and sale shall be concluded as provided in this section.
If the proposed value is not acceptable to Lessor, then Lessor
shall notify Lessee and shall within ninety (90) days obtain an
appraisal of the Premises from an MAI appraiser doing business in
the County of Xxxxx, State of Ohio. If the appraisal obtained by
Lessor is equal to or less than the proposed value set forth by
Lessee in its original notice, then such proposed value shall be
the purchase price. If the appraisal obtained by Lessor is
within 10% higher of the proposed value set forth in Lessee's
notice, then the purchase price shall be the average of the
proposed value and the value in Lessor's appraisal. If the
10
appraisal obtained by Lessor is more than 10% higher than the
proposed value in Lessee's notice, then the two appraisers shall
select a third MAI appraiser doing business in the County of
Xxxxx, State of Ohio. The purchase price shall then be the
greater of (i) the proposed value in the Lessee's notice or (ii)
the average of the third appraisal and the next closest appraisal
in terms of dollar value to the third appraisal, but if the two
appraisals are equally close in terms of dollar value then the
value in the third appraisal shall be the purchase price. Lessee
shall pay for its appraisal. Lessor shall pay for its appraisal.
Lessor and Lessee shall share the expense of the third appraisal.
The purchase price determined above is referred to as the
Purchase Price.
C. The closing of a sale under the Option to Purchase
shall take place within sixty (60) days after determination of
the Purchase Price. Base Rent and additional rent shall be
prorated in escrow to the date of closing. A nationally
recognized title company with offices in Cleveland, Ohio shall be
designated by the Lessor to act as escrow agent and to issue the
title policy required herein.
D. At closing, Lessor shall convey title to the
Premises to Lessee by statutory form Limited Warranty Deed, free
and clear of all liens and encumbrances except (i) real estate
taxes and assessments, not then due and payable (assessments then
being paid in installments shall not be considered as due and
payable), (ii) legal highways, (iii) building and zoning
ordinances, (iv) any encumbrance suffered or permitted by Lessee,
(v) this Lease, and (vii) such other matters of record as do not
materially adversely affect the use of the Premises as permitted
under this Lease.
X. Xxxxxx shall pay the following closing costs: (i)
the transfer tax; (ii) the cost of a title search; (iii) one-half
the base premium for an Owner's Policy of Title Insurance; (iv)
the deed preparation costs; and (v) one-half the escrow agent's
fee. Lessee shall pay the following closing costs: (i) one-half
the base premium for an Owner's Policy of Title Insurance and the
full cost of any endorsements desired by Lessee; (ii) the cost to
record the deed; and (iii) one-half the escrow agent's fee. In
addition, Lessor shall credit against the purchase price an
amount equal to all unpaid real estate taxes and assessments
(whether or not billed) prorated to the date of closing (to the
extent the same were not payable by Lessee under this Lease).
19. Default.
A Any of the following occurrences or acts shall
constitute an event of default ("Event of Default") under this
Lease:
(i) if Lessee shall fail to pay any Base Rent, additional rent
or other sum, as and when required to be paid by Lessee
hereunder, and such failure shall continue for five (5) days
after notice by Lessor to Lessee of such failure;
(ii) if Lessee shall fail to observe or perform any other
provision hereof and such failure shall continue for thirty (30)
days after notice by Lessor to Lessee of such failure (provided,
that in the case of any such default which cannot be cured by the
payment of money and cannot with diligence be cured within such
thirty (30) day period, if Lessee shall commence promptly to cure
the same and thereafter prosecute the curing thereof with
diligence, the time within such default may be cured shall be
extended for such period as is necessary to complete the curing
thereof with diligence);
(iii) if Lessee shall file a petition in bankruptcy or for an
arrangement pursuant to any federal or state bankruptcy law or
any similar federal or state law;
(iv) if Lessee shall be adjudicated a bankrupt;
11
(v) if Lessee shall become insolvent;
(vi) if Lessee shall make an assignment for the benefit of
creditors;
(vii) if Lessee shall admit in writing its inability to pay
its debts generally as they become due;
(viii) if a petition or answer proposing the adjudication of
Lessee as a bankrupt pursuant to any federal or state bankruptcy
law or any similar federal or state law shall be filed in any
court and Lessee shall consent to or acquiesce in the filing
thereof or such petition or answer shall not be discharged or
denied within sixty (60) days after the filing thereof; or
(ix) if the Premises shall have been left unoccupied and
unattended for a period of sixty (60) days.
B. If an Event of Default shall have happened and be
continuing, Lessor shall have the right to give Lessee notice of
Lessor's termination of the term of this Lease. Upon the giving
of such notice, the term of this Lease and the estate hereby
granted shall expire and terminate on the date set forth in such
notice, and all rights of Lessee hereunder shall expire and
terminate, but Lessee shall remain liable as hereinafter
provided.
C. If an Event of Default shall have happened and be
continuing, Lessor shall have the immediate right, whether or not
the term of this Lease shall have been terminated pursuant to
this section, to re-enter and repossess the Premises by summary
proceedings, ejectment, or any other legal action as is available
by law or in any lawful manner Lessor determines to be necessary
or desirable, and shall have the right to remove all persons and
property therefrom. No such re-entry or repossession of the
Premises shall be construed as an election by Lessor to terminate
the term of this Lease unless a notice of such termination is
given to Lessee pursuant to this section.
D. At any time or from time to time after the re-
entry or repossession of the Premises pursuant to this section,
whether or not the term of this Lease shall have been terminated
pursuant to this section, Lessor shall be obligated to mitigate
damages, and may re-let the Premises for the account of Lessee,
in the name of Lessee or Lessor or otherwise, without notice to
Lessee, for such term or terms and on such conditions and for
such uses as Lessor, in its absolute discretion, may determine.
Lessor may collect and receive any rents payable by reason of
such re-letting. Except as otherwise provided by law, Lessor
shall not be liable for any failure to re-let the Premises or for
any failure to collect any rent due upon any such re-letting.
E. No expiration or termination of the term of this
Lease pursuant to this section, by operation of law or otherwise,
and no re-entry or repossession of the Premises pursuant to this
section or otherwise, shall relieve Lessee of its liabilities and
obligations hereunder, all of which shall survive such
expiration, termination, re-entry, or repossession except as
provided in subsection F below.
F. In the event of any expiration or termination of
the term of this Lease, or re-entry or repossession of the
Premises by reason of the occurrence of an Event of Default,
Lessee will pay to Lessor all Base Rent, additional rent and
other sums required to be paid by Lessee to and including the
date of such expiration, termination, re-entry or repossession;
and thereafter, Lessee shall, until the end of what would have
been the term of this Lease in the absence of such expiration,
termination, re-entry or repossession, be liable to Lessor for,
and shall pay to Lessor, as liquidated and agreed current
damages: (i) all Base Rent, additional rent and other sums which
would be payable under this Lease by Lessee in the absence of
such expiration, termination, re-entry or repossession, less (ii)
the net proceeds, if any, of re-letting effected for the account
of Lessee pursuant to this section, after deducting from such Net
Proceeds all expenses of Lessor in connection with such re-
letting. Lessee will pay such current damages on the days on
which Base Rent would be payable under this Lease in the absence
12
of such expiration termination, re-entry or repossession, and
Lessor shall be entitled to recover the same from Lessee on such
day.
20. Additional Rights of Lessor.
A. Except as expressly provided in Section 19 hereof,
no right or remedy hereunder shall be exclusive of any other
right or remedy, but shall be cumulative and in addition to any
other right or remedy hereunder or now or hereafter existing.
Failure to insist upon the strict performance of any provision
hereof or to exercise any option, right, power or remedy
contained herein shall not constitute a waiver or relinquishment
for the future. Receipt by Lessor of any Base Rent, additional
rent or other sum payable hereunder with knowledge of the breach
of any provision hereof shall not constitute waiver of such
breach, and no waiver by Lessor of any provision hereof shall be
deemed to have been made unless made in writing.
B. If Lessee shall be in default in the performance
of any of its obligations hereunder, Lessee shall pay to Lessor,
on demand, all out of pocket expenses incurred by Lessor as a
direct result thereof. If Lessor shall be made a party to any
litigation commenced against Lessee, and Lessee shall fail to
provide Lessor with counsel approved by Lessor and pay the
expense thereof, Lessee shall pay all costs and reasonable
attorney fees in connection with such litigation.
21. Notices.
All given pursuant to this Lease shall be in writing and
shall be validly given when (i) deposited in the United States
Mail and posted for certified or registered mail, return receipt
requested, (ii) deposited with a nationally-recognized overnight
delivery service for next day delivery and confirmation of such
delivery is received by the sender or (iii) by confirmed
telephone facsimile transmission, as follows:
(a) if to Lessor: c/o Xxxxxxx Xxxxxxxx, General Partner, 2504
Xxxxxxxx, Xxxxxx, Xxxx 00000, and
(b) if to Lessee: x/x Xxxxxxxxxxxx Xxxxxxx xx Xxxxx Xxxxxxx,
Inc., 00000 Xx. Xxxxxxx Xxxxxx, Xxxxxxxx, XX 00000, facsimile:
(000) 000-0000.
Notwithstanding the foregoing, notice to Lessee may be made by
posting a copy of such notice upon the Premises, provided a copy
is also sent by each of the foregoing methods to the Lessee's
last known address as shown by the Lessor's records.
22. Estoppel Certificates.
Lessee will, upon five (5) days notice at the request of
Lessor, execute, acknowledge and deliver to Lessor a certificate
of Lessee stating that this Lease is unmodified and in full
effect (or, if there have been modifications, that this Lease is
in full effect as modified, and setting forth such modifications)
and the dates to which Base Rent, additional rent and other sums
payable hereunder or any payments payable under such sublease, as
the case may be, have been paid, and either stating that to the
knowledge of the signer of such certificate no default exists
hereunder or specifying each such default of which the signer has
knowledge and whether or not the Premises are still being
occupied or operated. Any such certificate may be relied upon by
any prospective mortgagee or purchase or the Premises.
23. Surrender.
13
Upon the expiration or termination of the term of this
Lease, Lessee shall surrender the Premises and the Equipment to
Lessor in the condition in which the Premises and the Equipment
were at the commencement of the term, except for ordinary wear
and tear, and except for a termination of this Lease as provided
in Section 12 hereof. Lessee shall remove from the Premises on
or prior to such expiration or termination all property situated
thereon which is not owned by Lessor, and shall repair any damage
caused by such removal. The property not so removed shall become
the property of Lessor, and Lessor may cause such property to be
removed from the Premises and disposed of, but the cost of any
such removal and disposition and of repairing any damage caused
by such removal shall be borne by Lessee. It is understood and
agreed that the Equipment is owned by the Lessor and will not be
removed by Lessee without the consent of the Lessor.
24. Subordination; Attornment.
Lessee agrees that this Lease shall, at the request of the
Lessor, be subordinate to any mortgages or deeds of trust that
may be placed upon the Premises. Lessee agrees that, upon the
request of Lessor, Lessee shall execute whatever instruments may
be required to carry out such subordination. Lessor shall use
its good faith efforts to obtain the lender's standard form of
non-disturbance agreement in connection with such subordination.
In the event any proceedings are brought for the foreclosure
of, or in the event of the conveyance by deed in lieu of
foreclosure of, or in the event of exercising the sale of power
under, any mortgage made by Lessor covering the Premises, Lessee
shall attorn to, and agrees to execute an instrument reasonably
satisfactory to the new owner whereby Lessee attorns such
successor in interest and recognizes such successors as the
Lessor under this Lease.
25. Separability; Binding Effect.
Each provision hereof shall be separate and independent and
the breach of any such provision by Lessor shall not discharge or
relieve Lessee from its obligations to perform each and every
covenant to be performed by Lessee hereunder. If any provision
hereof or the application thereof to any person or circumstance
shall to any extent be invalid or unenforceable, the remaining
provisions hereof, or the application of such provision to
persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and each
provision hereof shall be valid and shall be enforceable to the
extent permitted by law. All provisions contained in this Lease
shall be binding upon, and inure to the benefit of, and be
enforceable by, the respective successors and assigns of Lessor
and Lessee to the same extent as if each such successor and
assign were names as a party hereto. This Lease may not be
changed, modified or discharged except by a writing signed by
Lessor and Lessee. This Lease shall be governed by the laws of
the State of Ohio.
26. Headings.
The headings of the various sections and schedules of this
Lease have been inserted for reference only and shall not to any
extent have the effect of modifying, amending or changing the
expressed terms and provisions of this Lease.
27. Memorandum of Lease.
This Lease shall not be recorded but at the request of
Lessee, Lessor shall execute a Memorandum of Lease for recording
in accordance with Ohio law.
14
IN WITNESS WHEREOF, the undersigned have executed this Lease on
the date above written.
Witnesses: XXXXXXXX INVESTORS
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxxx Xxxxxxxx
-------------------- ----------------------
First Witness
Xxxxxx Xxxxxxx Xxxxxxx Xxxxxxxx
-------------------- ------------------
(Print or Type Name) (Print or Type Name)
/s/ Xxxxxx Xxxxx
--------------------
Second Witness
Xxxxxx Xxxxx
--------------------
(Print or Type Name)
Witnesses: TPSS ACQUISITION CORPORATION
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
---------------------- ---------------------
First Witness
Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxx
---------------------- ---------------------
(Print or Type Name) (Print or Type Name)
/s/ Xxxxxx X. Many
----------------------
Second Witness
Xxxxxx X. Many
----------------------
(Print or Type Name)
15
STATE OF OHIO )
)ss:
COUNTY OF CUYAHOGA )
BEFORE ME, a Notary Public in and for said county and
state, personally appeared Xxxxxxx Xxxxxxxx, as Partner of
XXXXXXXX INVESTORS, an Ohio general partnership, who acknowledged
that he/she did execute the foregoing instrument for and on
behalf of said general partnership.
IN TESTIMONY WHEREOF, I have hereunto set my hand and seal
as of this 12th day of January, 1999.
/s/ Xxxxx X. Xxxxxxx
--------------------
Notary Public
Xxxxx X. Xxxxxxx
--------------------
Print Name
Xxxxx x. Xxxxxxx, Notary Public
Resident of Portage County
State wide Jurisdiction, Ohio
My Commission Expires
October 3, 1999
STATE OF OHIO )
)ss:
COUNTY OF CUYAHOGA )
BEFORE ME, a Notary Public in and for said county and
state, personally appeared Xxxxxxx X. Xxxxxx, as President of
TPSS ACQUISITION CORPORATION, an Ohio corporation, who
acknowledged that he/she did execute the foregoing instrument for
and on behalf of said general corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and seal
as of this 12th day of January 1999.
/s/ Xxxxx X. Xxxxxxx
--------------------
Notary Public
Xxxxx X. Xxxxxxx
--------------------
Print Name
Xxxxx x. Xxxxxxx, Notary Public
Resident of Portage County
State wide Jurisdiction, Ohio
My Commission Expires
October 3, 1999
16
SCHEDULE A
DESCRIPTION OF LAND
PARCEL 1: That part of the Southeast quarter (1/4) of Section
three (3), Township three (3), in the United States Reserve of
Twelve (12) miles square at the foot of the Rapids of the Miami
of Lake Erie, in the City of Toledo, Lucas County, Ohio, and
being part of the land as described in the deed from Xxxxxxx
Xxxxxxx to Northern Indiana Railroad Company dated June 15, 1853
and recorded in Volume 23, Page 1, of the Deed records of said
County being bounded and described as follows:
Beginning at the point of intersection of the South line of
Xxxxxxxx Street, Sixty (60) feet wide, and the West line of
Xxxxxxx and Xxxxxxxx Addition, as recorded in Volume 17, Page 25
of Plat in Register of Deeds Office of said County. Course 1 -
thence due south along said West line of said addition in the
prolongation thereof a distance of eight hundred fourteen and
fifty three hundredths (814.53) feet to a point marked by an iron
pipe; Course 2 - thence North eighty one (81) degrees twenty five
(25) minutes zero (00) seconds west a distance of seven hundred
sixty six and eighty hundredths (766.80) feet to a point marked
by an iron pipe; Course 3 - thence North one (1) degree fifty
(50) minutes thirty (30) seconds east a distance of seven hundred
and forty five hundredths (700.45) feet to a point marked by an
iron pipe in the South line of the aforesaid Xxxxxxxx Street;
Course 4 - thence due East along the South line of Xxxxxxxx
Street a distance of seven hundred thirty five and sixty eight
hundredths (735.68) feet to the place of beginning, according to
the survey made April 23 and 24, 1957 by Lewendowski Engineers,
per Xxxxx Xxxxxxxxxxx, Ohio Registered Surveyor No. 838.
PARCEL 2: A parcel of land being part of the Southeast quarter
1/4 of the Southeast quarter (1/4) of Section three (3); Town
three (3), United States Reserve, in the City of Toledo, Lucas
County, Ohio, said parcel of land being bounded and described as
follows:
Commencing at the intersection of the centerline of Klondike
Street (sixty (60) feet wide) with the East line of said section
three (3) as shown on the Plat of "Xxxxxxx & Xxxxxxxx Addition"
recorded in Volume 17, Page 26, Xxxxx County Plat Records, said
section line along being the centerline of Xxxxxx Street, thence
in a southerly direction along said east line of Section 3 having
an assumed bearing of south one (1) degree twenty three (23)
minutes thirty one (31) seconds East a distance of one hundred
forty eight and forty three hundredths (148.43) feet to the
intersection of the southerly line of said Xxxxxxx and Xxxxxxxx
addition. Said intersection also being the true point of
beginning; thence continuing south one (1) degree twenty three
(23) minutes thirty one (31) seconds east along said east line of
section 3 a distance of two hundred eighty eight and seventy
eight hundredths (288.78) feet to a point. Thence North eighty
one (81) degrees six (6) minutes forty seven (47) seconds west a
distance of thirty and forty nine hundredths (30.49) feet to a
point on the westerly line of Xxxxxx Street a distance of thirty
and zero hundredths (30.00) feet westerly of by perpendicular
measurement from the said East line of Section 3 and being also
distance one hundred and zero hundredths (100.00) feet
Northeasterly of by perpendicular measurement from the center
line of the West bound main track of the railroad formerly of the
Penn Central Transportation Company. Thence continuing North
eighty one (81) degrees six (6) minutes forty seven (47) seconds
West a distance of eight hundred seventy seven and sixty two
hundredths (877.62) feet to the point on the Westerly line of
said Xxxxxxx and Xxxxxxxx addition (extended in the southerly
direction) thirty three and zero hundredths (33.00) northeasterly
of by perpendicular measurement from the said center line of the
west bound main track of Railroad Formerly of the Penn Central
Transportation Company thence north one (1) degree twenty three
(23) minutes thirty one (31) seconds west along said westerly
line of Xxxxxxx and Xxxxxxxx addition extended in a southerly
direction a distance of one hundred ninteen and ninety eight
hundredths (119.98) feet to the intersection of said southerly
line of Xxxxxxx and Xxxxxxxx addition thence North eighty eight
(88) degrees ten (10) minutes twenty nine (29) seconds east along
17
said southerly line of Xxxxxxx & Xxxxxxxx addition a distance of
eight hundred ninety three and fifty six hundredths (893.56) feet
to the true point of beginning.
Containing 182,621 square feet or 4.392 acres of land more or
less.
Subject to legal highways.
18
SCHEDULE B
EQUIPMENT
1. Bay 1 - Overhead Crane and Related Equipment
2. Bay 3* - Overhead Crane and Related Equipment
3. Bay 4 - Overhead Crane and Related Equipment
4. Bay 5 - Overhead Crane and Related Equipment
5. Outside Building - Overhead Crane and Related Equipment
* In Bay 3 on the floor, there is a Gantry Crane - Floor Unit,
which is Lessee's.
