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FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended July 5, 1997
OR
[] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Commission File Number 1-9843
MORGAN PRODUCTS LTD.
(Exact name of registrant as specified in its charter)
DELAWARE 06-1095650
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
469 McLaws Circle, Williamsburg, Virginia 23185
(Address of principal executive offices, including zip code)
(757) 564-1700
(Registrant's telephone number, including area code)
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Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes (X) No ( )
The number of shares outstanding of registrant's Common Stock, par value $.10
per share, at August 1, 1997 was 10,351,694 ; 2,386 shares are held in treasury.
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PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
MORGAN PRODUCTS LTD.
Consolidated Balance Sheets
($000 Except Shares Outstanding)
July 5, June 29, December 31,
1997 1996 1996
--------------- --------------- ------------------
(Unaudited) (Unaudited)
ASSETS
<S> <C> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents $ 1,512 $ 2,105 $ 1,467
Accounts receivable, net 40,582 32,906 32,559
Inventories 69,765 52,924 73,683
Other current assets 1,378 804 632
------- ------- -------
Total current assets 113,237 88,739 108,341
------- ------- -------
OTHER ASSETS 11,020 4,211 10,638
PROPERTY, PLANT & EQUIPMENT, net 23,566 19,490 23,137
------- ------- -------
TOTAL ASSETS $147,823 $112,440 $142,116
------- ------- -------
LIABILITIES & STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Short-term debt $ 247 $ 221 $ 0
Current maturities of long-term debt 1,296 928 1,136
Accounts payable 15,138 16,060 19,449
Accrued compensation and employee benefits 4,373 6,231 6,219
Income tax payable 0 123 0
Other current liabilities 3,652 3,857 4,449
------- ------- -------
Total current liabilities 24,706 27,420 31,253
------- ------- -------
LONG-TERM DEBT 63,720 32,057 48,880
STOCKHOLDERS' EQUITY:
Common Stock, $.10 par value, 10,351,508, 8,648,822, 1,035 865 1,015
and 10,149,816 shares outstanding, respectively
Paid-in capital 43,376 33,779 42,237
Retained earnings 15,066 18,632 18,927
------- ------- -------
59,477 53,276 62,179
Treasury stock, 2,386 shares, at cost (48) (48) (48)
Unamortized value of restricted stock (32) (265) (148)
------- ------- -------
TOTAL STOCKHOLDERS' EQUITY 59,397 52,963 61,983
------- ------ -------
TOTAL LIABILITIES & STOCKHOLDERS' EQUITY $147,823 $112,440 $142,116
======= ======= =======
The accompanying notes are an integral part of the financial statements.
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MORGAN PRODUCTS LTD.
Consolidated Income Statements
($000, except earnings per share amounts
and weighted average shares outstanding)
For the Three Months Ended For the Six Months Ended
------------------------------ ----------------------------
July 5 June 29, July 5, June 29,
1997 1996 1997 1996
-------------- -------------- -------------- ----------
(Unaudited) (Unaudited) (Unaudited) (Unaudited)
<S> <C> <C> <C> <C>
Net sales $ 106,801 $ 95,208 $ 202,606 $ 169,744
Cost of goods sold 91,759 80,829 170,140 144,867
------------ ---------- ----------- ----------
Gross profit 15,042 14,379 32,466 24,877
------------ ---------- ----------- ----------
Operating expenses:
Sales & marketing 10,364 8,553 20,999 16,641
General & administrative 3,065 3,634 6,959 6,071
Restructuring 2,203 881 4,713 881
Reorganization 17 0 1,117 0
------------ ---------- ----------- ----------
Total 15,649 13,068 33,788 23,593
------------ ---------- ----------- ----------
Operating income (loss) (607) 1,311 (1,322) 1,284
------------ ---------- ----------- ----------
Other income (expense):
Interest (1,335) (776) (2,571) (1,369)
Other 43 57 92 137
------------ ---------- ----------- ----------
Total (1,292) (719) (2,479) (1,232)
------------ ---------- ----------- ----------
Income (loss) before income taxes (1,899) 592 (3,801) 52
Provision for income taxes 30 30 60 49
------------ ---------- ----------- ----------
Net income (loss) $ (1,929) 562 $ (3,861) $ 3
============ ========== =========== ==========
Income (loss) per share $ (0.19) 0.06 $ (0.38) $ 0.00
============ ========== =========== ==========
Weighted average common and
common equivalent shares outstanding 10,267,367 8,697,176 10,208,501 8,684,274
============ ========== =========== ==========
The accompanying notes are an integral part of the financial statements.
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MORGAN PRODUCTS LTD.
Consolidated Statements of Cash Flows
( $ 000 ' s )
For the Six Months Ended
------------------------
July 5, June 29,
1997 1996
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(Unaudited) (Unaudited)
<S> <C> <C>
CASH GENERATED (USED) BY OPERATING ACTIVITIES:
Net income (loss) $ (3,861) $ 3
Add noncash items included in income:
Depreciation and amortization 2,108 1,842
Provision for doubtful accounts 71 57
(Gain) loss on sale of property, plant, & equipment 7 (17)
Provision for restructuring 0 881
Other 116 117
Cash (used) generated by changes in components of working capital, net of
effects of acquisition of business:
Accounts receivable (8,094) (12,162)
Inventories 3,918 431
Accounts payable (2,407) 4,939
Other working capital (3,389) 869
--------- ------
NET CASH GENERATED (USED) BY OPERATING ACTIVITIES (11,531) (3,040)
--------- ------
CASH GENERATED (USED) BY INVESTING ACTIVITIES:
Acquisition of property, plant, & equipment (2,233) (1,518)
Acquisition of Tennessee Building Products (2,160) 0
Proceeds from disposal of property, plant, & equipment 4 4,127
Other (441) 715
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NET CASH GENERATED (USED) BY INVESTING ACTIVITIES (4,830) 3,324
--------- ------
CASH GENERATED (USED) BY FINANCING ACTIVITIES:
Net change in short-term debt 247 221
Proceeds from long-term debt 15,598 27
Repayments of long-term debt (598) (3,540)
Common stock issued for cash 1,159 8
Other 0 (30)
--------- ------
NET CASH GENERATED BY FINANCING ACTIVITIES 16,406 (3,314)
--------- ------
NET DECREASE IN CASH AND CASH EQUIVALENTS 45 (3,030)
CASH AND CASH EQUIVALENTS:
Beginning of period 1,467 5,135
--------- ------
End of period $ 1,512 $ 2,105
========== =======
Supplemental Disclosures of Cash Flow Information:
Cash paid during the year for:
Interest $ 2,852 $ 1,702
Income taxes 96 37
The accompanying notes are an integral part of the financial statements.
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MORGAN PRODUCTS LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE PERIOD ENDED JULY 5, 1997
NOTE 1 - SIGNIFICANT ACCOUNTING POLICIES
- ----------------------------------------
DESCRIPTION OF BUSINESS - Morgan Products Ltd. (the "Company") manufactures and
distributes products (virtually all of which are considered to be millwork)
which are sold to the residential and light commercial building materials
industry and are used for both new construction and improvements, maintenance
and repairs. In view of the nature of its products and the method of
distribution, management believes that the Company's business constitutes a
single industry segment.
DISCLOSURES ABOUT SEGMENTS OF AN ENTERPRISE AND RELATED INFORMATION - The
Financial Accounting Standards Board ("FASB") issued statement of Financial
Accounting Standards ("SFAS") No. 131, "Disclosures about Segments of an
Enterprise and Related Information," which establishes standards for reporting
information about operating segments in annual financial statements and interim
financial reports. It also establishes standards for related disclosures about
products and services, geographic areas and major customers. SFAS 131 is
effective for fiscal years beginning after December 15, 1997 and requires
presentation of prior period financial statements for comparability purposes.
The Company is currently evaluating its required disclosures under SFAS No. 131
and expects to adopt this standard during the year ended December 31, 1998.
CONSOLIDATION - The consolidated financial statements include the accounts of
all business units of Morgan Products Ltd. All intercompany transactions,
profits and balances are eliminated.
BASIS OF PRESENTATION - The financial statements at July 5, 1997 and June 29,
1996, and for the three and six months then ended, are unaudited; however, in
the opinion of management, all adjustments (consisting only of normal recurring
accruals) necessary for a fair presentation of the financial position at these
dates and the results of operations and cash flows for these periods have been
included. The results for the three and six months ended July 5, 1997 are not
necessarily indicative of the results that may be expected for the full year or
any other interim period.
EARNINGS PER SHARE - The FASB has issued SFAS No.128, "Earnings per Share." SFAS
128 replaces primary EPS with basic EPS, which excludes dilution and requires
presentation of both basic and diluted EPS on the face of the income statement.
Diluted EPS is computed similarly to the current fully diluted EPS. SFAS 128 is
effective for financial statements issued for periods ending after December 15,
1997, and requires restatement of all prior-period EPS data presented. The
adoption of this statement is not expected to materially affect either future or
prior-period EPS.
REPORTING COMPREHENSIVE INCOME - The FASB issued SFAS No. 130, "Reporting
Comprehensive Income," which will require the Company to disclose, in financial
statement format, all non-owner changes in equity. Such changes include
cumulative foreign currency translation adjustments and certain minimum pension
liabilities. SFAS 130 is effective for fiscal years beginning after December 15,
1997 and requires presentation of prior period financial statements for
comparability purposes. The Company is currently evaluating its disclosures
under SFAS No. 131 and expects to adopt this standard during the year ended
December 31, 1998.
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NOTE 2 - INVENTORIES
- --------------------
Inventories consisted of the following at (in thousands of dollars):
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<CAPTION>
July 5, 1997 June 29, 1996 December 31, 1996
------------ ------------- -----------------
(unaudited) (unaudited)
<S> <C> <C> <C>
Raw material $ 12,096 $ 8,756 $ 14,139
Work-in-process 9,196 7,222 9,899
Finished goods 48,473 36,946 49,645
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$ 69,765 $ 52,924 $ 73,683
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Inventories are valued at the lower of cost or market. Cost is determined on the first-in, first-out (FIFO) method.
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NOTE 3 - PROVISION FOR RESTRUCTURING AND REORGANIZATION
- -------------------------------------------------------
In conjunction with the closing of two plants and to provide for other cost
reductions and consolidations within the Company an $11.3 million restructuring
charge was recorded in 1994. At such time, a multi-year plan involving necessary
management structure changes, a new management information system, and future
facility requirements was developed.
In the second quarter of 1996, the Company sold its Lexington, North Carolina
door manufacturing facility and consolidated it with the Company's Oshkosh,
Wisconsin door manufacturing facility. The Company recorded an additional
restructuring charge in the second quarter of 1996 of $881,000, of which
$356,000, related to the sale of the Lexington facility and the consolidation of
door manufacturing operations into the Oshkosh facility, and the balance of
which was used to cover incremental costs related to the Springfield and Weed
plant closings and the reorganization of the management structure at Morgan
Manufacturing. Additional aggregate restructuring expenses of $3.8 million were
recorded in the third and fourth quarters of 1996. These restructuring expenses,
which included Lexington operating costs after cessation of production and
incremental hiring, training, and relocation costs associated with the transfer
of Lexington production to Oshkosh were expensed as incurred.
In the first six months of 1997, the Company recorded an additional
restructuring charge of $4.7 million for excessive costs incurred as a
consequence of the consolidation of manufacturing operations and a delay in the
start-up of the new high-speed door assembly line. The equipment has been
installed and management believes that the line should be functioning at a
normal capacity by September 1997. At July 5, 1997, the restructuring reserve
balance was $.6 million as compared to $1.1 million at December 31, 1996.
Additionally, the Company recorded a $1.1 million reorganization charge in the
first quarter of 1997 in connection with the termination of the employment of
the Chief Financial Officer and Senior Vice President-Human Resources and
Administration of the Company. At July 5, 1997, the reorganization reserve
balance was $.4 million.
NOTE 4 - CREDIT AGREEMENT
- -------------------------
The Company maintains a credit agreement with a group of banks, which provides
for a revolving credit facility of up to $75 million through July 14, 2000,
including a letter of credit facility of up to $9 million. On July 25, 1997, the
Company and the bank group entered into an amendment, which altered the
restrictive covenants, increased the credit line to the current $75 million and
extended the line for an additional two years. The amendments have terms similar
to those previously in effect or more favorable to the Company. The amendment
also put into place an acquisition line of up to $15 million through July 14,
2000. The acquisition line consists of a term loan of up to $10 million and a
revolving credit facility of up to $5 million. At July 5, 1997, the Company had
borrowings of $55.9 million under the revolving credit facility. The credit
agreement requires the Company, among other things, to maintain minimum interest
coverage and fixed charge coverage ratios, minimum levels of tangible net worth
and a maximum leverage ratio.
NOTE 5 - SUBSEQUENT EVENTS
- --------------------------
On July 25, 1997, pursuant to an asset purchase agreement dated July 15, 1997,
the Company acquired certain assets of Wahlfeld Manufacturing Company
(`Wahlfeld") for approximately $4.6 million, subject to certain purchase price
adjustments. The Wahlfeld Acquisition, which was financed through borrowings on
the Company's revolving credit agreement, will be accounted for as a purchase.
Wahlfeld, which had annual sales of approximately $22.7 million for the year
ended December 31, 1996, is a distributor of windows, doors, and other millwork
products to residential builders and other customers.
<PAGE>
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations
Forward Looking Statements
Various statements made within this Management's Discussion and Analysis of
Financial Condition and Results of Operations and elsewhere in this Quarterly
Report on Form 10-Q constitute "forward looking statements" for purposes of the
Securities and Exchange Commission's "safe harbor" provisions under the Private
Securities Litigation Reform Act of 1995 and Rule 3b-6 under the Securities
Exchange Act of 1934, as amended. Investors are cautioned that all forward
looking statements involve risks and uncertainties, including those detailed in
the Company's filings with the Securities and Exchange Commission. There can be
no assurance that actual results will not differ from the Company's
expectations. Factors which could cause materially different results include,
among others, the success of consolidation of manufacturing operations; changes
in relationships with important suppliers and key customers; the pace of
acquisitions; fluctuations in the price of raw materials; and competitive and
general economic conditions, such as housing starts.
Results of Operations
Three Months Ended July 5, 1997 vs.
Three Months Ended June 29, 1996
The Company's net sales for the second quarter of 1997 were $106.8 million,
representing a 12.2% increase over the same period in 1996, when sales were
$95.2 million. The increase is attributable to the acquisition of Tennessee
Building Products ("TBP") and a 3.9% quarter-over-quarter improvement in the
sales of distributed products, which management believes is primarily the result
of an increase in marketing efforts of the Company in partnership with key
suppliers. External sales of manufactured products for the second quarter of
1997 were lower compared to the same period in 1996 by 21.2% or $4.6 million
primarily as a consequence of the disruption caused by the consolidation of the
Lexington, North Carolina facility and the delay in start-up of the new
high-speed door assembly line.
For the second quarter of 1997, the Company reported net income before
restructuring and reorganization charges of $291,000 or $0.03 per share compared
to net income before restructuring and reorganization charges of $1.4 million or
$0.17 per share for the same period in 1996, on average shares outstanding of
10,267,367 and 8,697,176, respectively. Including restructuring charges of $2.2
million, the Company reported a net loss of $1.9 million or $0.19 per share. The
lower income, exclusive of the restructuring charges, was primarily the result
of lower volume of manufactured product, higher cost of raw material, and
interest costs.
The gross profit increase of $.7 million from the second quarter of 1996 to the
corresponding period of 1997 was primarily the result of the TBP acquisition
offset by Manufacturing losses, which were due to the restructuring of
manufacturing operations and the higher costs of raw materials.
Operating expenses for the second quarter of 1997, excluding the restructuring
charges, were $13.4 million or 12.6% of net sales, compared to 1996 second
quarter operating expenses of $12.2 million, or 12.8% of net sales.
The provision for income taxes in both second quarters 1997 and 1996 relates to
the recording of state taxes. The provisions for federal taxes in each period
are offset by the Company's net operating loss position.
Six Months Ended July 5, 1997 vs.
Six Months Ended June 29, 1996
The Company's net sales for the 1997 six-month period were $202.6 million,
representing a 19.4% increase over the same period in 1996, when sales were
$169.7 million. The increase is attributable to the acquisition of TBP and a
10.1%
<PAGE>
year-to-date improvement in the sales of distributed products, which management
believes is primarily the result of an increase in marketing efforts of the
Company in partnership with key suppliers. External sales of manufactured
products for the 1997 six-month period were down from the same period in 1996 by
14.0% or $6 million primarily as a consequence of the disruption caused by the
consolidation of the Lexington, North Carolina operations into the Oshkosh,
Wisconsin facility and the delay in start-up of the new high-speed door assembly
line.
The Company reported year-to-date net income before restructuring and
reorganization charges of $2.0 million or $0.19 per share compared to net income
before restructuring and reorganization charges of $884,000 or $0.10 per share
for the same period in 1996, on average shares outstanding of 10,208,501 and
8,684,274, respectively. Including restructuring and reorganization charges of
$5.8 million, the Company reported a year-to-date net loss of $3.9 million or
$0.38 per share versus net income of $3,000 or $0.0 per share for the same
period in 1996. The increase in income, exclusive of the restructuring and
reorganization charges, was primarily the result of the acquisition of TBP, the
higher sales volume of distributed products, and a volume incentive reward from
a supplier partnership program.
The gross profit increase of $7.6 million from the first half of 1996 to the
corresponding period of 1997 was primarily the result of the TBP acquisition and
the sales volume gains in distributed products. Manufacturing losses, which were
due to the restructuring of manufacturing operations and the rising costs of raw
materials, offset these gains.
Operating expenses for the first six months of 1997, excluding the restructuring
and reorganization charges, were $28.0 million or 13.8% of net sales, compared
to the similar period in 1996 with operating expenses of $22.7 million, or 13.4%
of net sales. The increases in operating expenses were primarily related to the
TBP acquisition.
Year-to-date interest expense was $1.2 million higher. This Increase is due to
average debt rising from $36 million in the first six months of 1996 to $61.5
million in the similar period in 1997 which was needed to maintain higher
working capital levels due to operating inefficiencies in manufacturing and the
TBP acquisition.
The provision for income taxes in both years relates to the recording of state
taxes. The provisions for federal taxes in each period are offset by the
Company's net operating loss position
Significant Business Trends/Uncertainties
Management believes that housing starts have a significant influence on the
Company's level of business activity. "Housing Economics" reported that sales of
new homes for the first five months of 1997 were 9.4% above those for the same
period in 1996. No assurances can be given, however, that for 1997 there will be
any continued improvement in the level of housing starts, or that single family
housing starts will not decline in the future.
Management also believes that the Company's ability to continue to penetrate the
residential repair and remodeling markets through sales to home center chains
may have a significant influence on the Company's level of business activity.
Management believes this market will continue to grow in importance to the
Company. Management further believes that in certain areas of the United States,
sales by distributors directly to the end-user may over time replace, as the
primary channel of distribution, the distribution method of selling to the
retail dealer, who then sells to the end user. The Company intends to respond
aggressively to such changes in distribution methods, including, where
opportunities permit, through the acquisition of distribution businesses that
sell directly to the end-user.
In the past, raw material prices have fluctuated substantially for pine and fir
lumber. Fir prices reached a high in the first quarter of 1995 and remained
within 5% of that level until the fourth quarter of 1996. For the first six
months of 1997, average fir and oak prices were at their highest levels in a
year and increased from the fourth quarter of 1996 by 5.2% and 1.0%,
respectively. In the second quarter, pine prices did not experience their normal
historical decline as expected. Such increases in the price of raw materials
have resulted in reduced profit margins. As a result, the Company continues its
efforts to expand the utilization, where appropriate, of engineered materials in
wood door components and to switch to alternate wood species. In addition, the
Company has established new offshore sources of raw material. Management
believes that these actions, together with aggressive price increases where
competitive factors allow, will partially offset the impact of the high cost of
raw material.
<PAGE>
In order to expand its capacity, meet anticipated demand and reduce its cost of
production, the Company has installed a new high-speed door assembly line at its
Oshkosh facility. Delivery and installation of the new line was completed during
the first quarter of 1997. The new high-speed door assembly line is operational;
however, the new line is not yet operating at normal capacity. Management
currently believes that the line should be functioning at a normal capacity by
September 1997. A performance shortfall could have a detrimental impact, both on
the short-term profitability of the Company and on its long-term ability to
service and retain key customers. Management believes that the efficient
operation of the new high-speed door assembly line is critical to reducing
lead-times to acceptable levels and satisfying customers.
An important part of the Company's strategic plan is to expand its distribution
capabilities, particularly in the Southeast and Southwest, as well as other
areas, if attractive opportunities are presented. In August 1996, the Company
acquired substantially all of the business and assets of Tennessee Building
Products, a regional millwork and specialty building products distributor and
light manufacturer headquartered in Nashville, Tennessee. With the TBP
acquisition, the Company expanded its operations to include Nashville and
Chattanooga, Tennessee; Charlotte, North Carolina; Greenville, South Carolina;
and Huntsville, Alabama. On July 25, 1997 the Company acquired certain assets of
Wahlfeld Manufacturing Company ("Wahlfeld"). Wahlfeld, which had annual sales of
approximately $22.7 million for the year ended December 31, 1996, is a
distributor of windows, doors, and other millwork products. The Company plans to
consolidate Wahlfeld's operations into the Company's existing facilities in West
Chicago and Decatur, Illinois.
Recently, Andersen Corporation ("Andersen") determined to market and to sell its
FibrexO replacement window systems through retail stores which are aimed at the
replacement window buyer. These retail stores, called Renewal by AndersenO
stores, will be devoted exclusively to the promotion and sale of FibrexO window
systems, with the stores being established in various areas of the country and
principally owned and operated by independent distributors. Andersen has entered
into an agreement with the Company to open one of the first such stores in
Overland Park, Kansas. Such store is owned and operated by the Company. FibrexO
is a proprietary material developed by Andersen that is made of a composite of
wood fibers and vinyl and is considered to be superior in certain
characteristics to pure vinyl core window systems. In the event that the Kansas
location is successful, the Company and Andersen may consider establishing
additional stores.
As the final major element of its strategic initiatives, the Company is
committed to improving its management information systems. A new Company-wide
integrated management information system has been selected and is in the process
of implementation. The Company has approved a total capital expenditure of $3.4
million for the new management information system project, which will be
financed through a combination of capital leases and borrowings under the
Company's revolving line of credit. Upon completion of this project, the Company
will have achieved significant progress in meeting its goal of being the
industry leader in customer-friendly order processing and fulfillment systems.
Liquidity and Capital Resources
The Company's working capital requirements are related to its sales level,
which, because of its dependency on housing starts and the repair and remodeling
market, are seasonal and, to a degree, weather dependent. This seasonality
affects the need for working capital inasmuch as it is necessary to carry larger
inventories and receivables during certain months of the year.
Working capital at July 5, 1997 was $88.5 million, with a ratio of current
assets to current liabilities of 4.6 to 1.0, while at December 31, 1996 working
capital was $77.1 million with a ratio of current assets to current liabilities
of 3.5 to 1.0. The increase in working capital reflects seasonality, with
accounts receivable increasing $8.0 million. Accounts payable and other working
capital decreased in the first half of 1997 by an aggregate $5.8 million,
primarily as a consequence of the payment of accrued bonuses and commissions and
a large decrease in the amount of checks issued and outstanding. Increases in
working capital were offset by a $3.9 million decrease in inventories.
<PAGE>
Long-term debt, net of cash, increased to $62.2 million at July 5, 1997, from
$47.4 million at December 31, 1996. The Company's ratio of long-term debt, net
of cash, to total capitalization increased from 43.3% at December 31, 1996 to
51.2% at July 5, 1997. The $14.8 million increase is attributable to the
aforementioned $9.9 million change in working capital, a final payment of $2.2
million related to the acquisition of TBP, and $2.2 million of capital spending.
Cash used by operating activities totaled $11.5 million for the six months ended
July 5, 1997, as compared to a $3.0 million cash generation for the six months
ended June 29, 1996. The difference between periods is due to lower operating
results and higher working capital as discussed above. Investing activities in
the first six months of 1997 used $4.8 million, compared to the corresponding
period in 1996, when investing activities generated $3.3 million. 1997
activities included $2.2 million expended to acquire new equipment, the final
payment for the purchase of TBP of $2.2 million and $.4 million used in other
investing activities, while 1996 activities consisted of $1.5 million used for
asset acquisitions, $4.1 million generated by asset disposals, $.9 million
provided by the surrender of life insurance policies, and $.2 million used in
other investing activities. Financing activities generated $16.4 million through
July 5, 1997, with $14.7 million provided by net increases in the revolving line
of credit, $1.2 million generated by stock option being exercised by former
employees and $.2 million by short-term financing. During the same period in
1996, financing activities used $3.3 million to repay debt. The $19.7 million
difference in the financing requirements for the six months ended July 5, 1997
and the comparable period in 1996 reflects the need to finance the $11.5 million
cash used by operating activities and the aforementioned investing activities.
The Company maintains a credit agreement with a group of banks, which provides
for a revolving credit facility of up to $75 million through July 14, 2000,
including a letter of credit facility of up to $9 million. On July 25, 1997, the
Company and the bank group entered into an amendment, which altered the
restrictive covenants, increased the credit line to the current $75 million and
extended the line for an additional two years. The covenant alterations are
generally favorable to the Company. The amendment also put into place an
acquisition line of up to $15 million through July 14, 2000. The acquisition
line consists of a term loan of up to $ 10 million and a revolving credit
facility of up to $5 million. At July 5, 1997, the Company had borrowings of
$55.9 million under the revolving credit facility. The credit agreement requires
the Company, among other things, to maintain minimum interest coverage and fixed
charge coverage ratios, minimum levels of tangible net worth and a maximum
leverage ratio. The Company is in compliance with the financial covenants under
the credit agreement.
The Company believes that it may require additional financing to pursue
attractive acquisition candidates, depending upon the size of the acquisitions.
Restructuring of Operations
Since 1994 the Company has adopted a comprehensive strategic plan to restore
profitability and regain industry leadership by providing customers with quality
products and optimum service at the best price/value relationship. The Company
has taken a series of major initiatives to implement this plan and respond to
continuing challenges in the industry. At Morgan Manufacturing, the Company has
consolidated all of its door manufacturing operations into its Oshkosh facility
and has committed approximately $6 million in capital expenditures for a new
high-speed door assembly line. In addition, management is committed to
controlling manufacturing costs, achieving a substantial savings through
innovative raw material purchasing and manufacturing practices, and developing a
more customer-focused business approach. The Company believes that its
relationship with Andersen has improved in recent years. At Morgan Distribution,
the Company has strengthened its business through a broad series of operating
initiatives and plans to achieve additional growth both through its existing
operations and by acquisition, as opportunities permit. Primarily as the result
of the implementation of its strategic plan, the Company has incurred
substantial restructuring charges. In 1994 and 1995, the Company incurred $11.3
million and $51,000 in restructuring charges, respectively, to cover the costs
of closing the Company's Springfield, Oregon door and Weed, California veneer
plants, the downsizing of Morgan Manufacturing, Company-wide management
structure changes (including terminations and the elimination of certain
positions), the restructuring of the Morgan Distribution operations, the
relocation of the Company's corporate headquarters, and other cost reduction and
consolidation actions.
In the second quarter of 1996, the Company sold its Lexington, North Carolina
door manufacturing facility. The entire line of doors previously manufactured in
Lexington was shifted to the Company's Oshkosh, Wisconsin door manufacturing
facility. The Company recorded restructuring charges in 1996 of $4.7 million,
primarily related to the sale of the Lexington and the consolidation of door
manufacturing operations into the Oshkosh facility.
<PAGE>
Management believes that with the installation and start-up of the new
high-speed door assembly line at the Oshkosh facility, which occurred in the
first quarter of 1997, lead time increases experienced due to increased
production requirements and related inefficiencies encountered during the
consolidation process may be reversed and, in fact, may be reduced by up to two
weeks. The new high-speed door assembly line is not yet operating at normal
capacity; however, management believes that the line should be functioning at a
normal capacity by September 1997. When the new high-speed door assembly line is
fully operational, management believes that the Oshkosh facility will be
operating at approximately 70% of capacity, based upon current production
levels. It is believed that the consolidation of all door manufacturing
facilities at a single facility will offer the Company significant cost savings
as well as provide customers with the advantage of purchasing the full range of
solid wood door products and wood species from a single manufacturing facility.
In the first six months of 1997, the Company recorded an additional
restructuring charge of $4.7 million for excessive costs incurred as a
consequence of the consolidation of manufacturing operations and the delayed
start-up of the new high-speed door assembly line. The Company does not
currently expect to incur any additional restructuring charges for the remainder
of 1997. At July 5, 1997, the restructuring reserve balance was $.6 million as
compared to $1.1 million at December 31, 1996, primarily due to costs incurred
in connection with severance and other employee benefit related payments.
Additionally, the Company recorded a $1.1 million reorganization charge in the
first quarter of 1997 in connection with the termination of the employment of
the Chief Financial Officer and Senior Vice President-Human Resources and
Administration of the Company. Such provision is to cover severance and related
payments to such officers. At July 5, 1997, the reorganization reserve balance
was $.4 million.
<PAGE>
PART II. OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITIES HOLDERS
At the Company's Annual Meeting of Stockholders on May 14, 1997, a vote was
taken for the election of directors for a one-year term. All directors were
re-elected by the following common stock vote:
For Withhold Authority
--- ------------------
F.J. Hawley, Jr. 8,777,069 136,495
L.R. Robinette 8,777,168 136,396
J.S. Crowley 8,775,766 137,798
H.G. Haas 8,775,767 137,797
W.R. Holland 8,770,968 142,596
E.T. Tokar 8,777,168 136,396
P.J. McDonough, Jr. 8,777,170 136,394
The second item on the ballot was the ratification of the selection of Price
Waterhouse LLP as independent accountants for the Company for the 1997 fiscal
year. The ratification passed by a common stock vote as follows: For --
8,830,368; Against -- 68,070; Abstain -- 15,126.
The third item on the ballot was the ratification of the 1997 Incentive
Compensation Plan. The ratification passed by a common stock vote as follows:
For -- 7,080,872; Against -- 1,809,065; Abstain -- 23,627.
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
10.1 Employment agreement between the Company and Mitchell J. Lahr
dated March 11, 1997.
10.2 Employment agreement between the Company and Darrell J. Olson
dated March 21, 1997.
10.3 Form of Indemnification Agreement, dated April 7, 1997, between
the Company and Mitchell J. Lahr.
10.4 Form of Indemnification Agreement, dated April 14, 1997, between
the Company and Darrell J. Olson.
10.5 Employment termination agreement between the Company and Dennis C.
Hood dated March 31, 1997.
10.6 Employment termination agreement between the Company and Douglas
H. MacMillan dated March 31, 1997.
10.7 Lease, dated May 7, 1997, between the Company and BR/NO LA.
Properties, LLC for warehousing for a five year term in Baton
Rouge, Louisiana.
27 Financial Data Schedule
(b) A Current Report on Form 8-K was filed by the Company on August 8, 1997
with respect to the acquisition by the Company of certain assets of
Wahlfeld Manufacturing Company.
<PAGE>
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
MORGAN PRODUCTS LTD.
Date: August 19, 1997 By: /s/ Mitchell J. Lahr
-----------------------
Mitchell J. Lahr
Vice President, Secretary and
Chief Financial Officer
(For the Registrant and as
Principal Financial Officer)
<PAGE>
INDEX OF EXHIBITS
10.1 Employment agreement between the Company and Mitchell J. Lahr
dated March 11, 1997.
10.2 Employment agreement between the Company and Darrell J. Olson
dated March 21, 1997.
10.3 Form of Indemnification Agreement, dated April 7, 1997, between
the Company and Mitchell J. Lahr.
10.4 Form of Indemnification Agreement, dated April 14, 1997, between
the Company and Darrell J. Olson.
10.5 Employment termination agreement between the Company and Dennis C.
Hood dated March 31, 1997.
10.6 Employment termination agreement between the Company and Douglas
H. MacMillan dated March 31, 1997.
10.7 Lease, dated May 7, 1997, between the Company and BR/NO LA.
Properties, LLC for warehousing for a five year term in Baton
Rouge, Louisiana.
27 Financial Data Schedule
<PAGE>
Exhibit 10
05/14/97-1
<PAGE>
EXHIBIT 10.1
March 11, 1997
Revised March 13, 1997
Mitchell J. Lahr
26425 Pheasant Run Drive
Mundelein, IL 60060
Dear Mitch:
I am excited about your accepting the challenge to join the Morgan team as Chief
Administrative Officer as we gear up our efforts to accelerate our turnaround
program and move forward with our acquisition strategy. I know that your
strengths and energy level are a good match for what needs to be addressed. I am
looking forward to having a hard charging team that can have some fun as we work
together to increase value for our shareholders.
I have contacted Doug Calvin who is the managing partner for Price Waterhouse,
our auditing firm. He is prepared to meet with you in Chicago and brief you on
our business from his perspective. In addition, he has assured me that he and
his firm can assist you with those functions that are related to reporting
requirements. I feel very comfortable with managing investor relations and
getting you involved in that effort. In addition, I will be having Frode Jensen,
our chief legal counsel, contacting you to review the legal aspects relative to
the responsibilities that you will have from a public company perspective. Both
of these individuals who will contact you have been involved with the business
for several years and are "straight shooters" that you can trust.
The following is a summary of your employment offer that we have previously
discussed:
Base salary--$225,000
o.1997 bonus guarantee--50% of base ($112,500)
o. Standard bonus program is 50% target, 75% maximum
o. Stock options 100,000 at market price; 50% vested in 12 months, 50% vested in
24 months
o. Employment contract for two years with a minimum severance of one year
o. Company car per our program, or equivalent allowance, grossed up for personal
use
o. Country club membership, or equivalent
<PAGE>
Mitchell J. Lahr
March 11, 1997
Page 2
o You are eligible to participate in the newly created long-term incentive
plan for the executive group. For the CFO position, the annualized goal is
$85,000. I am recommending your goal at $100,000. This is a three year
rolling plan with full payout at the end of three years, i.e. in February
2000 and every year thereafter.
o Standard moving policy covering moving expenses associated with sale of
home, purchase of home, temporary living expenses, and a moving allowance
of no less than one months salary. We will also guarantee no loss on the
sale of your existing residence.
o A benefits package comparable to the other executives including life
insurance of 4x base, executive disability insurance of approximately 70%
of base, 401K with executive deferral, health insurance, etc.
o Change of control will be between 1.5x and 2.0x of base plus average bonus
plus benefits.
Mitch, I believe this covers what we have discussed. If you have any question,
please give me a call. Pam and I look forward to seeing you and your family and
giving you whatever help we can as you relocate to a WARMER CLIMATE.
Best regards,
/s/ Larry R. Robinette
Larry R. Robinette
President and Chief Executive Officer
<PAGE>
EXHIBIT 10.2
March 21, 1997
Mr. Darrell J. Olson
5123 Ravenswood Lane
Racine, WI 53402
RE: Employment Offer for Darrell J. Olson
Dear Darrell:
I am looking forward to having you as a key member of the Morgan Products, Ltd.
management team. You and I had the opportunity to be a part of a truly unique
management team at Mirro/Foley that created a synergistic environment where 2 +
2 = 5. The critical components of that environment were: team members with
outstanding skills sets in the key core competency areas, a common business
philosophy, the maturity to allow a problem solving process without
organizational boundaries, and the confidence in ourselves and the trust in our
team members that allowed us to focus all of our energies on increasing
shareholder value. We are ready to take that step at Morgan, and I know you can
help me create the bond that will enable us to work hard, get outstanding
results, and have a lot of fun while we are doing it!
I am in the process of finalizing a start date which will be predicated both on
your availability and the finalization of some legal issues relative to the
incumbent. However my target is around the week of April 7, 1997. I would also
like you to meet Frank Hawley, the Chairman of the Board, at your earliest
convenience. Your meeting with Frank is not a prerequisite to your employment
offer. It just gives you the opportunity to meet Frank and discuss his level of
support for me and his vision for our business.
As we have discussed, your position has dual responsibilities for both corporate
activities and divisional activities. You will report to me for corporate
responsibilities related to policy and HR strategy and to Dave Braun for Morgan
Distribution responsibilities. The Director of HR at Morgan Manufacturing will
have dotted line responsibility to you. It goes without saying that you and I
together will have the final say on all HR issues. In an effort to develop the
optimum mix of cost and service for HR activities , we will evaluate out
sourcing applicable HR activities.
<PAGE>
Darrell J. Olson
March 21, 1997
Page 2
The following is a general summary of you employment offer:
o Position: Vice President of Human Resources, Morgan Products Ltd. & Morgan
Distribution
o Base Salary: $140,000.
o 1997 bonus guarantee: $50,000.
o Normal bonus plan: 50% target, 75% max.
o Stock Options: 50,000. (50% vest in 12 months, 50% vest in 24 months)
o Severance: 24 months starting with date of hire reducing to a 12 month
minimum.
o Company car per our program ( Grossed up for personal use)
o Club membership per our plan, or equivalent to help offset any loss on sale of
home.
o Participation in our newly created long term incentive plan. (max. potential
approx. $50,000/yr)
o Standard move policy covering expenses associated with the sale of home,
purchase of home, temporary living expenses, moving allowance equal to one
month base pay. We will provide some protection on a loss associated with the
sale of your home.
o A benefits package comparable to the other senior executives including life
insurance of 4x base with some co-pay, exec. Disability of approximately 70%
of base, 401K with executive deferral, health insurance (waive pre-existing
conditions), four weeks vacation.
o Change of control: approx. 1.5x base and average bonus.
Darrell, I think this covers what we have discussed, but if you have any
questions do not hesitate to call me. I have also included a copy of our
strategies which are in the process of being reviewed and a benefits package. I
confident that we will all have a lot of fun as we work together to increase
value for the Morgan shareholders. I look forward to seeing you and Jan this
week-end.
Best regards,
/s/ Larry R. Robinette
Larry R. Robinette
President and Chief Executive Officer
<PAGE>
EXHIBIT 10.3
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT dated April 7, 1997 (the "Agreement"),
between MORGAN PRODUCTS LTD., a Delaware corporation (the "Corporation"), and
Mitchell J. Lahr an officer of the Corporation (the "Indemnitee").
WHEREAS, the ability to attract and retain competent and experienced
persons to serve as directors and officers of the Corporation is in the best
interests of the Corporation and its stockholders, and the Corporation's ability
to attract and retain such persons will be enhanced by providing both its
current and prospective directors and officers with indemnification agreements
as permitted by Delaware law so that such persons will be willing to serve or
continue to serve the Corporation;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. GENERAL INDEMNIFICATION. It is the intention of the parties
hereto that the Corporation shall be required to indemnify the Indemnitee to the
fullest extent permitted by the law (both statutory and common) of the State of
Delaware as now or hereafter in effect. Therefore, in addition to the
indemnification and advancement of expenses specifically provided elsewhere
herein, the Corporation shall indemnify and hold the Indemnitee harmless in
connection with any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, and including any
action brought by or in the right of the Corporation, to which the Indemnitee
is, was or at any time becomes a party, or is threatened to be made a party, by
reason of the fact that he is or was or has agreed to become a director,
officer, employee or agent of the Corporation, or is or was serving or has
agreed to serve at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to have been taken or
omitted in any such capacity, against all costs, charges, expenses (including
attorneys' fees and costs), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him or on his behalf in connection with such
action, suit or proceeding and any appeal therefrom, to the fullest extent then
permitted by the law (both statutory and common) of the State of Delaware as now
or hereafter in effect, notwithstanding that such indemnification is not
specifically mandated or authorized by the other provisions of this Agreement,
the Corporation's By-Laws or Certificate of Incorporation or otherwise and
notwithstanding that the legal basis for such indemnification may have arisen
subsequent to the act, occurrence or omission with respect to which
indemnification is being sought.
<PAGE>
Section 2. THIRD PARTY ACTIONS. The Corporation shall indemnify and
hold the Indemnitee harmless in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation and
covered by Section 3 hereof) to which the Indemnitee is, was or at any time
becomes a party, or is threatened to be made a party, by reason of the fact that
he is or was or has agreed to become a director, officer, employee or agent of
the Corporation, or is or was serving or has agreed to serve at the request of
the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, or by reason
of any action alleged to have been taken or omitted in any such capacity,
against all costs, charges, expenses (including attorneys' fees and costs),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him or on his behalf in connection with such action, suit or proceeding and
any appeal therefrom, if the Indemnitee acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that his conduct was unlawful.
Section 3. ACTIONS IN RIGHT OF CORPORATION. The Corporation shall
indemnify and hold the Indemnitee harmless in connection with any threatened,
pending or completed action, suit or proceeding, brought by or in the right of
the Corporation to procure a judgment in the Corporation's favor, to which the
Indemnitee is, was or at any time becomes a party, or is threatened to be made a
party, by reason of the fact that he is or was or has agreed to become a
director, officer, employee or agent of the Corporation, or is or was serving or
has agreed to serve at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to have been taken or
omitted in any such capacity, against all costs, charges and expenses (including
attorneys' fees and costs) actually and reasonably incurred by him or on his
behalf in connection with such action, suit or proceeding and any appeal
therefrom, if the Indemnitee acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation,
except that no indemnification shall be made in respect of any claim, issue or
matter as to which the Indemnitee shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery of the
State of Delaware or the court in which such action, suit or proceeding was
brought shall determine upon application that, despite the adjudication of such
liability but in view of all the circumstances of the case, the Indemnitee is
fairly and reasonably entitled to indemnity for such costs, charges and expenses
which the Court of Chancery or such other court shall deem proper.
<PAGE>
Section 4. PREVAILING PARTY. Notwithstanding anything herein to the
extent that the Indemnitee has been successful, on the merits or otherwise,
including, without limitation, the dismissal of an action without prejudice, in
defense of any action, suit or proceeding referred to in Sections 2 or 3 hereof,
he shall be indemnified against all costs, charges and expenses (including
attorneys' fees and costs) actually and reasonably incurred by him or on his
behalf in connection therewith. In addition, to the extent that the Indemnitee
has been partially successful, on the merits or otherwise, including, without
limitation, the dismissal without prejudice, as to one or more but less than all
claims, issues or matters in any action, suit or proceeding referred to in
Sections 2 or 3 hereof, he shall be indemnified against all costs, charges and
expenses (including attorneys' fees and costs) actually and reasonably incurred
by him or on his behalf in connection with each successfully resolved claim,
issue or matter.
Section 5. NO PRESUMPTIONS. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the Indemnitee did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
Section 6. ADVANCES; EXPENSES AS WITNESS.
(a) Costs, charges and expenses (including attorneys' fees and costs)
incurred by the Indemnitee in connection with any civil or criminal action, suit
or proceeding (including one brought by or in the right of the Corporation)
which might give rise to a right of indemnification hereunder shall be paid by
the Corporation in advance of the final disposition of such action, suit or
proceeding, provided, however, that the payment of such costs, charges and
expenses (including attorneys, fees and costs) incurred by the Indemnitee in his
capacity as a director or officer (and not in any other capacity) in advance of
the final disposition of such action, suit or proceeding shall be made only upon
receipt of an undertaking by or on behalf of the Indemnitee to repay all amounts
so advanced in the event that it shall ultimately be determined that the
Indemnitee is not entitled to be indemnified by the Corporation as authorized in
this Agreement. Any advancement of expenses pursuant to this Agreement shall be
made promptly and in any event within 15 days after receipt of written request
therefor from the Indemnitee, accompanied by any required undertaking.
(b) Notwithstanding any other provision of this Agreement, to the
extent that the Indemnitee is a witness in any action, suit or proceeding
referred to in Sections 2 or 3 and any appeal therefrom to which the Indemnitee
is not a party, the Corporation shall indemnify the Indemnitee against all
costs, charges and expenses (including attorneys' fees and costs) actually or
reasonably incurred by him or on his behalf in connection therewith.
Section 7. PROCEDURE.
(a) Any indemnification pursuant to this Agreement (unless ordered by a
court) shall be made by the Corporation promptly and in any event within 45 days
after receipt of a written request therefor from the Indemnitee, unless a
determination is made within such 45 day period (i)
<PAGE>
by the Board of Directors of the Corporation by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or proceeding,
or (ii) if such quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (iii) by the vote of the holders of a majority of the issued and
outstanding shares of Common Stock of the Company, that indemnification of the
Indemnitee is not proper in the circumstances because he has not met the
applicable standard of conduct.
(b) The right to indemnification or advancement of expenses shall be
enforceable by the Indemnitee in any court of competent jurisdiction if the
Corporation denies such request, in whole or in part (including by failure to
act thereon) within 45 days after receipt of such written request (or, in the
case of advancements, within 15 days), it being the parties' intention that if
the Corporation denies the Indemnitee's request for indemnification, the
question of the Indemnitee's right thereto shall be for the court to decide. The
Indemnitee's costs and expenses incurred in connection with successfully
establishing his right to indemnification and advancements, in whole or in part,
in any such action shall also be indemnified by the Corporation. It shall be a
defense to any such action (other than an action brought to enforce a claim for
advancements where the required undertaking, if any, has been received by the
Corporation) that the Indemnitee has not met the applicable standard of conduct.
The burden of proving such defense shall be on the Corporation, and there shall
be a rebuttable presumption that the Indemnitee did not fail to meet such
applicable standard. Neither the failure of the Corporation (including its Board
of Directors, its independent legal counsel and its shareholders) to have made a
determination prior to the commencement of such action that indemnification of
the Indemnitee is proper in the circumstances because he has met the applicable
standard of conduct, nor the fact that there has been an actual determination by
the Corporation (including its Board of Directors, its independent legal counsel
and its shareholders) that the Indemnitee has not met such applicable standard
of conduct, shall be a defense or sufficient to rebut such presumption that the
Indemnitee has met the applicable standard of conduct.
Section 8. NON-EXCLUSIVITY, ETC. The indemnification and advancement of
expenses provided by this Agreement shall not be deemed exclusive of any other
rights to which the Indemnitee may now or hereafter he entitled under any
present or future law (whether statutory or common), agreement, By-law,
provision of the Certificate of Incorporation, vote of shareholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in any other capacity while holding office or while employed by
or acting as agent of the Corporation. No amendment or repeal of any present or
future provision in the Corporation's Certificate of Incorporation or By-Laws
authorizing or requiring the indemnification of or advancements to the
Indemnitee in any such capacity, and which amendment or repeal would diminish
the Indemnitee's right of indemnification or to advancements in any respect
under such provision, shall be effective against the Indemnitee unless he shall
consent to such amendment or repeal in a signed writing or by the Indemnitee's
vote as a director or shareholder.
Section 9. SURVIVAL.
(a) The indemnification and advancement of expenses provisions hereof
shall continue after the Indemnitee has ceased to be a director, officer,
employee or agent of the Corporation and shall inure to the benefit of the
Indemnitee's estate, heirs, executors and administrators.
<PAGE>
(b) This Agreement shall be binding on the successors and assigns of
the Corporation including, without limitation, any transferee of all or
substantially all of its assets and any successor by merger, consolidation,
operation of law or otherwise.
Section 10. PARTIAL INDEMNIFICATION. If the Indemnitee is entitled
pursuant hereto to Indemnification for some or a portion of the expenses,
judgments, fines, penalties or amounts paid in settlement, actually and
reasonably incurred by the Indemnitee but not for the total amount thereof, the
Corporation shall indemnify the Indemnitee for such portion thereof to which the
Indemnitee is entitled.
Section 11. EXCEPTIONS. Any other provisions herein to the contrary
notwithstanding, the Corporation shall not be obligated pursuant to the terms of
this Agreement:
(a) To indemnify or advance expenses to the Indemnitee with respect to
proceedings or claims initiated or brought voluntarily by the Indemnitee and not
by way of defense, except with respect to proceedings brought to establish or
enforce a right to indemnification under this Agreement or any other statute or
law or otherwise as required under Section 145 of the Delaware General
Corporation Law, but such indemnification or advancement of expenses may be
provided by the Corporation in specific cases if the Board of Directors finds it
to be appropriate
(b) To indemnify the Indemnitee for expenses or liabilities of any type
whatsoever (including, but not limited to, judgments, fines or penalties, and
amounts paid in settlement) to the extent that such expenses or liabilities have
been paid directly to the Indemnitee by an insurance carrier under a policy of
officers' and directors' liability insurance maintained by the Corporation.
(c) To indemnify the Indemnitee in connection with a suit or judgment
rendered for an accounting of profits arising from the purchase and sale by the
Indemnitee of securities pursuant to Section 16(b) of the Securities Exchange
Act of 1934, as amended, or any similar successor statute.
Section 12. SEVERABILITY. If this Agreement or any provision hereof
shall be invalidated or held illegal or unenforceable for any reason whatsoever:
(a) the validity, legality and enforceability of the remaining
provisions of this Agreement (including, without limitation, each portion of any
section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and
(b) to the fullest extent possible, the provisions of this Agreement
(including, without limitation, each portion of any section of this Agreement
containing any such provision held to be invalid, illegal or unenforceable, that
is not itself invalid, illegal or unenforceable) shall be construed so as to
give effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
<PAGE>
Section 13. MISCELLANEOUS.
(a) This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and together which shall constitute one and
the same agreement.
(b) Any headings used herein are used solely for convenience and shall
not be deemed to constitute part of this Agreement or to affect the construction
hereof.
(c) All notices, demands, and other communications hereunder must be in
writing and shall be deemed to have been received if delivered by hand or mailed
by certified or registered mail, postage prepaid, or sent by overnight or
express courier, postage prepaid to the following persons and addresses:
If to the Corporation:
MORGAN PRODUCTS LTD.
469 McLaws Circle
Williamsburg, VA 23185
Attention: President
If to the Indemnitee: Mitchell J. Lahr
26425 Pheasant Run Drive
Mundelein, IL 60060
or to such other name and address as to which notice shall duly be given in
accordance with the terms hereof.
(d) this Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware.
(e) The Indemnitee agrees to promptly notify the Corporation upon being
served with any citation, complaint, indictment or other document that might
reasonably result in indemnification or advancement of expenses hereunder.
However, no failure to provide such notice shall result in the Indemnitee losing
any of his rights hereunder or impose any liability whatsoever on the
Indemnitee.
(f) This Agreement may not be modified or amended except in a writing
signed by both parties hereto. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provisions
hereof nor shall such waiver constitute a continuing waiver.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
MORGAN PRODUCTS LTD.
By /s/ Larry R. Robinette
---------------------------------
Name: Larry R. Robinette
Title: President and Chief Executive Officer
/s/ Mitchell J. Lahr
---------------------------------
Mitchell J. Lahr
<PAGE>
EXHIBIT 10.4
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT dated April 14, 1997 (the "Agreement"),
between MORGAN PRODUCTS LTD., a Delaware corporation (the "Corporation"), and
Darrell J. Olson an officer of the Corporation (the "Indemnitee").
WHEREAS, the ability to attract and retain competent and experienced
persons to serve as directors and officers of the Corporation is in the best
interests of the Corporation and its stockholders, and the Corporation's ability
to attract and retain such persons will be enhanced by providing both its
current and prospective directors and officers with indemnification agreements
as permitted by Delaware law so that such persons will be willing to serve or
continue to serve the Corporation;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. GENERAL INDEMNIFICATION. It is the intention of the parties
hereto that the Corporation shall be required to indemnify the Indemnitee to the
fullest extent permitted by the law (both statutory and common) of the State of
Delaware as now or hereafter in effect. Therefore, in addition to the
indemnification and advancement of expenses specifically provided elsewhere
herein, the Corporation shall indemnify and hold the Indemnitee harmless in
connection with any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, and including any
action brought by or in the right of the Corporation, to which the Indemnitee
is, was or at any time becomes a party, or is threatened to be made a party, by
reason of the fact that he is or was or has agreed to become a director,
officer, employee or agent of the Corporation, or is or was serving or has
agreed to serve at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to have been taken or
omitted in any such capacity, against all costs, charges, expenses (including
attorneys' fees and costs), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him or on his behalf in connection with such
action, suit or proceeding and any appeal therefrom, to the fullest extent then
permitted by the law (both statutory and common) of the State of Delaware as now
or hereafter in effect, notwithstanding that such indemnification is not
specifically mandated or authorized by the other provisions of this Agreement,
the Corporation's By-Laws or Certificate of Incorporation or otherwise and
notwithstanding that the legal basis for such indemnification may have arisen
subsequent to the act, occurrence or omission with respect to which
indemnification is being sought.
<PAGE>
Section 2. THIRD PARTY ACTIONS. The Corporation shall indemnify and
hold the Indemnitee harmless in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation and
covered by Section 3 hereof) to which the Indemnitee is, was or at any time
becomes a party, or is threatened to be made a party, by reason of the fact that
he is or was or has agreed to become a director, officer, employee or agent of
the Corporation, or is or was serving or has agreed to serve at the request of
the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, or by reason
of any action alleged to have been taken or omitted in any such capacity,
against all costs, charges, expenses (including attorneys' fees and costs),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him or on his behalf in connection with such action, suit or proceeding and
any appeal therefrom, if the Indemnitee acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that his conduct was unlawful.
Section 3. ACTIONS IN RIGHT OF CORPORATION. The Corporation shall
indemnify and hold the Indemnitee harmless in connection with any threatened,
pending or completed action, suit or proceeding, brought by or in the right of
the Corporation to procure a judgment in the Corporation's favor, to which the
Indemnitee is, was or at any time becomes a party, or is threatened to be made a
party, by reason of the fact that he is or was or has agreed to become a
director, officer, employee or agent of the Corporation, or is or was serving or
has agreed to serve at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to have been taken or
omitted in any such capacity, against all costs, charges and expenses (including
attorneys' fees and costs) actually and reasonably incurred by him or on his
behalf in connection with such action, suit or proceeding and any appeal
therefrom, if the Indemnitee acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation,
except that no indemnification shall be made in respect of any claim, issue or
matter as to which the Indemnitee shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery of the
State of Delaware or the court in which such action, suit or proceeding was
brought shall determine upon application that, despite the adjudication of such
liability but in view of all the circumstances of the case, the Indemnitee is
fairly and reasonably entitled to indemnity for such costs, charges and expenses
which the Court of Chancery or such other court shall deem proper.
<PAGE>
Section 4. PREVAILING PARTY. Notwithstanding anything herein to the
extent that the Indemnitee has been successful, on the merits or otherwise,
including, without limitation, the dismissal of an action without prejudice, in
defense of any action, suit or proceeding referred to in Sections 2 or 3 hereof,
he shall be indemnified against all costs, charges and expenses (including
attorneys' fees and costs) actually and reasonably incurred by him or on his
behalf in connection therewith. In addition, to the extent that the Indemnitee
has been partially successful, on the merits or otherwise, including, without
limitation, the dismissal without prejudice, as to one or more but less than all
claims, issues or matters in any action, suit or proceeding referred to in
Sections 2 or 3 hereof, he shall be indemnified against all costs, charges and
expenses (including attorneys' fees and costs) actually and reasonably incurred
by him or on his behalf in connection with each successfully resolved claim,
issue or matter.
Section 5. NO PRESUMPTIONS. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the Indemnitee did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
Section 6. ADVANCES; EXPENSES AS WITNESS.
(a) Costs, charges and expenses (including attorneys' fees and costs)
incurred by the Indemnitee in connection with any civil or criminal action, suit
or proceeding (including one brought by or in the right of the Corporation)
which might give rise to a right of indemnification hereunder shall be paid by
the Corporation in advance of the final disposition of such action, suit or
proceeding, provided, however, that the payment of such costs, charges and
expenses (including attorneys, fees and costs) incurred by the Indemnitee in his
capacity as a director or officer (and not in any other capacity) in advance of
the final disposition of such action, suit or proceeding shall be made only upon
receipt of an undertaking by or on behalf of the Indemnitee to repay all amounts
so advanced in the event that it shall ultimately be determined that the
Indemnitee is not entitled to be indemnified by the Corporation as authorized in
this Agreement. Any advancement of expenses pursuant to this Agreement shall be
made promptly and in any event within 15 days after receipt of written request
therefor from the Indemnitee, accompanied by any required undertaking.
(b) Notwithstanding any other provision of this Agreement, to the
extent that the Indemnitee is a witness in any action, suit or proceeding
referred to in Sections 2 or 3 and any appeal therefrom to which the Indemnitee
is not a party, the Corporation shall indemnify the Indemnitee against all
costs, charges and expenses (including attorneys' fees and costs) actually or
reasonably incurred by him or on his behalf in connection therewith.
Section 7. PROCEDURE.
(a) Any indemnification pursuant to this Agreement (unless ordered by a
court) shall be made by the Corporation promptly and in any event within 45 days
after receipt of a written
<PAGE>
request therefor from the Indemnitee, unless a determination is made within such
45 day period (i) by the Board of Directors of the Corporation by a majority
vote of a quorum consisting of directors who were not parties to such action,
suit or proceeding, or (ii) if such quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (iii) by the vote of the holders of a majority
of the issued and outstanding shares of Common Stock of the Company, that
indemnification of the Indemnitee is not proper in the circumstances because he
has not met the applicable standard of conduct.
(b) The right to indemnification or advancement of expenses shall be
enforceable by the Indemnitee in any court of competent jurisdiction if the
Corporation denies such request, in whole or in part (including by failure to
act thereon) within 45 days after receipt of such written request (or, in the
case of advancements, within 15 days), it being the parties' intention that if
the Corporation denies the Indemnitee's request for indemnification, the
question of the Indemnitee's right thereto shall be for the court to decide. The
Indemnitee's costs and expenses incurred in connection with successfully
establishing his right to indemnification and advancements, in whole or in part,
in any such action shall also be indemnified by the Corporation. It shall be a
defense to any such action (other than an action brought to enforce a claim for
advancements where the required undertaking, if any, has been received by the
Corporation) that the Indemnitee has not met the applicable standard of conduct.
The burden of proving such defense shall be on the Corporation, and there shall
be a rebuttable presumption that the Indemnitee did not fail to meet such
applicable standard. Neither the failure of the Corporation (including its Board
of Directors, its independent legal counsel and its shareholders) to have made a
determination prior to the commencement of such action that indemnification of
the Indemnitee is proper in the circumstances because he has met the applicable
standard of conduct, nor the fact that there has been an actual determination by
the Corporation (including its Board of Directors, its independent legal counsel
and its shareholders) that the Indemnitee has not met such applicable standard
of conduct, shall be a defense or sufficient to rebut such presumption that the
Indemnitee has met the applicable standard of conduct.
Section 8. NON-EXCLUSIVITY, ETC. The indemnification and advancement of
expenses provided by this Agreement shall not be deemed exclusive of any other
rights to which the Indemnitee may now or hereafter he entitled under any
present or future law (whether statutory or common), agreement, By-law,
provision of the Certificate of Incorporation, vote of shareholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in any other capacity while holding office or while employed by
or acting as agent of the Corporation. No amendment or repeal of any present or
future provision in the Corporation's Certificate of Incorporation or By-Laws
authorizing or requiring the indemnification of or advancements to the
Indemnitee in any such capacity, and which amendment or repeal would diminish
the Indemnitee's right of indemnification or to advancements in any respect
under such provision, shall be effective against the Indemnitee unless he shall
consent to such amendment or repeal in a signed writing or by the Indemnitee's
vote as a director or shareholder.
Section 9. SURVIVAL.
(a) The indemnification and advancement of expenses provisions hereof
shall continue
<PAGE>
after the Indemnitee has ceased to be a director, officer, employee or agent of
the Corporation and shall inure to the benefit of the Indemnitee's estate,
heirs, executors and administrators.
(b) This Agreement shall be binding on the successors and assigns of
the Corporation including, without limitation, any transferee of all or
substantially all of its assets and any successor by merger, consolidation,
operation of law or otherwise.
Section 10. PARTIAL INDEMNIFICATION. If the Indemnitee is entitled
pursuant hereto to Indemnification for some or a portion of the expenses,
judgments, fines, penalties or amounts paid in settlement, actually and
reasonably incurred by the Indemnitee but not for the total amount thereof, the
Corporation shall indemnify the Indemnitee for such portion thereof to which the
Indemnitee is entitled.
Section 11. EXCEPTIONS. Any other provisions herein to the contrary
notwithstanding, the Corporation shall not be obligated pursuant to the terms of
this Agreement:
(a) To indemnify or advance expenses to the Indemnitee with respect to
proceedings or claims initiated or brought voluntarily by the Indemnitee and not
by way of defense, except with respect to proceedings brought to establish or
enforce a right to indemnification under this Agreement or any other statute or
law or otherwise as required under Section 145 of the Delaware General
Corporation Law, but such indemnification or advancement of expenses may be
provided by the Corporation in specific cases if the Board of Directors finds it
to be appropriate
(b) To indemnify the Indemnitee for expenses or liabilities of any type
whatsoever (including, but not limited to, judgments, fines or penalties, and
amounts paid in settlement) to the extent that such expenses or liabilities have
been paid directly to the Indemnitee by an insurance carrier under a policy of
officers' and directors' liability insurance maintained by the Corporation.
(c) To indemnify the Indemnitee in connection with a suit or judgment
rendered for an accounting of profits arising from the purchase and sale by the
Indemnitee of securities pursuant to Section 16(b) of the Securities Exchange
Act of 1934, as amended, or any similar successor statute.
Section 12. SEVERABILITY. If this Agreement or any provision hereof
shall be invalidated or held illegal or unenforceable for any reason whatsoever:
(a) the validity, legality and enforceability of the remaining
provisions of this Agreement (including, without limitation, each portion of any
section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and
(b) to the fullest extent possible, the provisions of this Agreement
(including, without limitation, each portion of any section of this Agreement
containing any such provision held to be invalid, illegal or unenforceable, that
is not itself invalid, illegal or unenforceable) shall be construed so as to
give effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
<PAGE>
Section 13. MISCELLANEOUS.
(a) This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and together which shall constitute one and
the same agreement.
(b) Any headings used herein are used solely for convenience and shall
not be deemed to constitute part of this Agreement or to affect the construction
hereof.
(c) All notices, demands, and other communications hereunder must be in
writing and shall be deemed to have been received if delivered by hand or mailed
by certified or registered mail, postage prepaid, or sent by overnight or
express courier, postage prepaid to the following persons and addresses:
If to the Corporation:
MORGAN PRODUCTS LTD.
469 McLaws Circle
Williamsburg, VA 23185
Attention: President
If to the Indemnitee: Darrell J. Olson
5123 Ravenswood Lane
Racine, WI 53402
or to such other name and address as to which notice shall duly be given in
accordance with the terms hereof.
(d) this Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware.
(e) The Indemnitee agrees to promptly notify the Corporation upon being
served with any citation, complaint, indictment or other document that might
reasonably result in indemnification or advancement of expenses hereunder.
However, no failure to provide such notice shall result in the Indemnitee losing
any of his rights hereunder or impose any liability whatsoever on the
Indemnitee.
(f) This Agreement may not be modified or amended except in a writing
signed by both parties hereto. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provisions
hereof nor shall such waiver constitute a continuing waiver.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
MORGAN PRODUCTS LTD.
By /s/ Larry R. Robinette
------------------------------
Name: Larry R. Robinette
Title: President and Chief Executive Officer
/s/ Darrell J. Olson
------------------------------
Darrell J. Olson
<PAGE>
EXHIBIT 10.5
March 31, 1997
Dennis C. Hood
Morgan Products Ltd.
469 McLaws Circle
Williamsburg, VA 23185
Dear Dennis:
This letter sets forth our discussions regarding your separation of
employment from Morgan Products Ltd. and its subsidiaries (collectively, the
"Company") and represents the entire agreement between you and the Company with
respect to any and all severance benefits to which you are entitled from the
Company. This agreement incorporates the terms and provisions of the Special
Severance/Retention Plan for Executive officers, dated March 30, 1994 (the
"Plan"), including the modifications/enhancements dated April 13, 1994, which
shall be incorporated herein by reference.
1. In consideration of the benefits set forth herein, you agree to
forfeit your right to any and all payments and benefits under the terms of the
Plan. Notwithstanding the preceding sentence, except as specifically provided
herein to the contrary, you shall be entitled to the benefits set forth in
Section 3.3(c) (including the modifications/enhancements to the Plan dated April
13, 1994) and Article 5 of the Plan (except that the cap under Article 5 of the
Plan shall be 12.5% of your base salary). In addition, the terms and provisions
of Articles 4, 6, 7, 8, and 9 (with the exception of sections 9.4 and 9.8) of
the Plan shall apply for the purposes of this Agreement.
2. Monday, March 31, 1997 shall serve as your date of notice under the
Plan. The effective date of your termination will be Friday, May 30, 1997.
3. Effective March 31, 1997 you are being placed on paid leave at your
current bi-weekly rate of pay. During such leave, you will have no authority to
act for or on behalf of the Company. Notwithstanding the foregoing, you agree to
make yourself available to consult with the Company as needed. Outplacement
services are being made available to you effective immediately, and you are free
to begin to seek new employment or to pursue other self interests.
4. In addition to the Company's obligations in respect of Article 5 of
the Plan, as referred to in the second sentence of paragraph 1 above, the
Company agrees to reimburse you, in an amount not to exceed $15,000, for your
reasonable travel and lodging expenses incurred in connection with outplacement
services provided by the Thompson Group in Milwaukee, Wisconsin.
<PAGE>
Dennis C. Hood
March 31, 1997
Page 2
5. The Company will continue to pay you on a bi-weekly basis through
May 30, 1997. You will receive your final regular paycheck on June 6, 1997. The
total balance of your Deferred Compensation Account will be paid to you on June
20, 1997.
6. On May 30, 1997 you will become eligible for certain severance
payouts which shall be determined according to section 3.3(a) of the Plan
(including the modification/enhancement to the Plan dated April 13, 1994). You
and the Company agree that the amount payable to you hereunder is $428,278,
which amount shall be aid to you in two equal installments of $214,139 on each
of June 30, 1997 and January 3, 1998. This amount is inclusive of the amount of
vacation payable to you in respect of Section 3.3 (c) of the Plan and referred
to in the second sentence of paragraph 1 above.
7. Short-term and long-term disability coverage, and participation in
the Company's 401(k) plan and Deferred Compensation plan, will terminate on
Friday, May 30, 1997.
8. The Company also agrees to provide you with an additional lump sum
payment of $51,090, which will be paid to you in two equal installments of
$25,545 on each of June 30, 1997 and January 3, 1998.
9. You agree to be available at such reasonable times as may be
requested by the Company over the next six months to provide the Company with
general consulting services, to include, without limitation, consulting in
connection with upcoming labor negotiations. The Company agrees to pay you
$25,000 for such consulting services, which amount shall be paid to you in two
equal installments of $12,500 on each of June 30, 1997 and January 3, 1998.
10. In consideration of 3, 4, and 8 above you agree as follows:
(a) You will not directly or indirectly use, attempt to use, disclose,
or otherwise make known to any person or entity any knowledge or
information, including without limitation, lists of customers or
suppliers, trade secrets, know-how, inventions, discoveries, and
processes, as well as any data and records pertaining thereto, which
you may have acquired in the course of your employment; or any
knowledge or information of a confidential nature (including all
unpublished matters) relating to, without limitation, the business,
properties, accounting, books and records, trade
<PAGE>
Dennis C. Hood
March 31, 1997
Page 3
secrets, or memoranda of the Company or its affiliates, unless the Company
agrees in advance in writing to allow you to do so.
(b) You agree that you will not disparage, either orally or in writing,
the company or its Officers, Directors and employees, and that you will
not in any way assist, aid or participate in the pursuit of any
investigations, claims or charges brought against or with respect to
the Company or its Officers, Directors and employees, except in
response to a lawfully issued subpoena.
(c) With the exception of obligations set forth in this letter and the
fulfillment of same by the Company, you hereby waive and release the
Company, its successors and assigns, their Officers, Directors, and
employees from all liabilities, obligations, damages, claims, causes of
action and demands, whatsoever, and agree not to sue or file any claim
against the Company or the Company's successors or assigns, their
Officers, Directors, and employees which you now have or hereafter can,
shall or may have, including but not limited to any claims or rights
under federal, state or local laws prohibiting age (including but not
limited to all claims or rights arising under any statutes, including
but not limited to the Age Discrimination in Employment Act), race,
sex, national origin, religion, or other forms of discrimination, any
common law contract, tort or other claims. In the waiver of your rights
arising under the Age Discrimination in Employment Act, it is
understood that you are not waiving any right that arises after this
agreement is executed.
11. In the event of inquiry from prospective employers, the Company
will respond to such reference inquiries and will refrain from making negative
comments about you or your performance.
12. It is understood that the terms of my letter to you dated November
2, 1994 in regard to relocation to the Midwest will be honored at any time
during the twenty-four month period following your termination.
13. It is understood that, upon expiration of the fringe benefit
continuation period set forth in Section 3.3 (c) of the Plan (including the
modifications/enhancements to the Plan dated April 13, 1994), and referred to in
the second sentence of paragraph 1 above, you will, to the extent you are
eligible under the terms of relevant benefit plans, be considered to have
retired.
<PAGE>
Dennis C. Hood
March 31, 1997
Page 4
14. You agree that you have read this agreement carefully, and that you
were given a period of at least 21 days from its date of issuance in which to
execute this agreement, and that you understand you also may revoke this
agreement at any time during a seven-day period following the date of execution
in which case this agreement will have no force and effect.
15. You are advised to consult with an attorney prior to executing
this agreement, and you acknowledge you have been given a reasonable opportunity
to do so.
MORGAN PRODUCTS LTD.
By: /s/ Larry R. Robinette
---------------------------
Larry R. Robinette
President and Chief Executive Officer
ACCEPTED AND AGREED:
/s/ Dennis Hood March 31, 1997
--------------------------- --------------------
Dennis C. Hood Date
<PAGE>
EXHIBIT 10.6
March 31, 1997
Douglas H. MacMillan
Morgan Products Ltd.
469 McLaws Circle
Williamsburg, VA 23185
Dear Doug:
This letter sets forth our discussions regarding your separation of
employment from Morgan Products Ltd. and its subsidiaries (collectively, the
"Company") and represents the entire agreement between you and the Company with
respect to any and all severance benefits to which you are entitled from the
Company. This agreement incorporates the terms and provisions of the Special
Severance/Retention Plan for Executive officers, dated March 30, 1994 (the
"Plan"), including the modifications/enhancements dated April 13, 1994, which
shall be incorporated herein by reference.
1. In consideration of the benefits set forth herein, you agree to
forfeit your right to any and all payments and benefits under the terms of the
Plan. Notwithstanding the preceding sentence, except as specifically provided
herein to the contrary, you shall be entitled to the benefits set forth in
Section 3.3(c) (including the modifications/enhancements to the Plan dated April
13, 1994) and Article 5 of the Plan. In addition, the terms and provisions of
Articles 4, 6, 7, 8, and 9 (with the exception of sections 9.4 and 9.8) of the
Plan shall apply for the purposes of this Agreement. In lieu of the payment to
which you would be entitled under Article 5 of the Plan, the Company will make
to you a cash payment of $19,750 in two equal installments of $9,875 on each of
June 30, 1997 and January 3, 1998.
2. Monday, March 31, 1997 shall serve as your date of notice under the
Plan. The effective date of your termination will be Friday, May 30, 1997.
3. Effective March 31, 1997 you are being placed on paid leave at your
current bi-weekly rate of pay. During such leave, you will have no authority to
act for or on behalf of the Company. Notwithstanding the foregoing, you agree to
make yourself available to consult with the Company as needed. Outplacement
services are being made available to you effective immediately, and you are free
to begin to seek new employment or to pursue other self interests.
<PAGE>
Douglas H. MacMillan
March 31, 1997
Page 2
4. The Company will continue to pay you on a bi-weekly basis through
May 30, 1997. You will receive your final regular paycheck on June 6, 1997. The
total balance of your Deferred Compensation Account will be paid to you on June
20, 1997.
5. On May 30, 1997 you will become eligible for certain severance
payouts which shall be determined according to section 3.3(a) of the Plan
(including the modification/enhancement to the Plan dated April 13, 1994). You
and the Company agree that the amount payable to you hereunder is $543,043,
which amount shall be paid to you in two equal installments of $271,521.50 on
each of June 30, 1997 and January 3, 1998. This amount is inclusive of the
amount of vacation payable to you in respect of Section 3.3(c) of the Plan and
referred to in the second sentence of paragraph 1 above.
6. Short-term and long-term disability coverage, and participation if
any in the Company's 401(k) plan, and Deferred Compensation plan, will terminate
on Friday, May 30, 1997.
7. The Company also agrees to provide you with an additional lump sum
payment of $68,658.00, which will be paid to you in two equal installments of
$34,329 on each of June 30, 1997 and January 3, 1998.
8. In consideration of the agreements contained in paragraphs 1, 3 and
7 above you agree as follows:
(a) You will not directly or indirectly use, attempt to use, disclose,
or otherwise make known to any person or entity any knowledge or
information, including without limitation, lists of customers or
suppliers, trade secrets, know-how, inventions, discoveries, and
processes, as well as any data and records pertaining thereto, which you
may have acquired in the course of your employment; or any knowledge or
information of a confidential nature (including all unpublished matters)
relating to, without limitation, the business, properties, accounting,
books and records, trade secrets, or memoranda of the Company or its
affiliates, unless the Company agrees in advance in writing to allow you
to do so.
(b) You agree that you will not disparage, either orally or in writing,
the company or its Officers, Directors and employees, and that you will
not in any way assist, aid or participate in the pursuit of any
investigations, claims or charges brought against or with respect to the
Company or its Officers, Directors and employees, except in response to
a lawfully issued subpoena.
<PAGE>
Douglas H. MacMillan
March 31, 1997
Page 3
(c) With the exception of obligations set forth in this letter and the
fulfillment of same by the Company, you hereby waive and release the
Company, its successors and assigns, their Officers, Directors, and
employees from all liabilities, obligations, damages, claims, causes of
action and demands, whatsoever, and agree not to sue or file any claim
against the Company or the Company's successors or assigns, their
Officers, Directors, and employees which you now have or hereafter can,
shall or may have, including but not limited to any claims or rights
under federal, state or local laws prohibiting age (including but not
limited to all claims or rights arising under any statutes, including
but not limited to the Age Discrimination in Employment Act), race, sex,
national origin, religion, or other forms of discrimination, any common
law contract, tort or other claims. In the waiver of your rights arising
under the Age Discrimination in Employment Act, it is understood that
you are not waiving any right that arises after this agreement is
executed.
9. In the event of inquiry from prospective employers, the Company will
respond to such reference inquiries and will refrain from making negative
comments about you or your performance.
10. You agree that you have read this agreement carefully, and that you
were given a period of at least 21 days from its date of issuance in which to
execute this agreement, and that you understand you also may revoke this
agreement at any time during a seven-day period following the date of execution
in which case this agreement will have no force and effect.
11. You are advised to consult with an attorney prior to executing this
agreement, and you acknowledge you have been given a reasonable opportunity to
do so.
MORGAN PRODUCTS LTD.
By: /s/ Larry R. Robinette
--------------------------
Larry R. Robinette
President and Chief Executive Officer
ACCEPTED AND AGREED:
/s/ Douglas H. MacMillan March 31, 1997
-------------------------- ---------------------
Douglas H. MacMillan Date
<PAGE>
EXHIBIT 10.7
INDUSTRIAL LEASE
between
BR/NO LA. PROPERTIES, LLC
(Landlord)
and
MORGAN PRODUCTS, LTD.,
doing business in Louisiana as
MORGAN DISTRIBUTION
(Tenant)
<PAGE>
TABLE OF CONTENTS
INDUSTRIAL LEASE
Article Title Page
1 Definitions 1
2 Premises 2
3 Term 2
4 Rental; Adjustments 2
5 Security Deposit 4
6 Use of Premises 5
7 Utilities and Services 6
8 Maintenance and Repairs 6
9 Alterations, Additions and Improvements 7
10 Indemnification and Insurance 8
11 Damage or Destruction 10
12 Condemnation 10
13 Relocation 10
14 Assignment and Subletting 10
15 Default and Remedies 11
16 Attorneys' Fees; Costs of Suit 13
17 Subordination and Attornment 13
18 Quiet Enjoyment 14
19 Parking 14
20 Rules and Regulations 14
21 Estoppel Certificates 14
22 Entry by Landlord 14
23 INTENTIONALL OMITTED 15
24 Holdover Tenancy 15
25 Notices 15
26 Brokers 15
27 Miscellaneous 16
28 Floor Load Limits 17
29 Landlord's Lien 17
30 Uniform Commercial Code 17
31 Renewal Option 19
32 First Right of Refusal 20
EXHIBITS
Exhibit A Floor Plan of the Premises
Exhibit B Work Letter Agreement
Exhibit C Suite Acceptance Letter
Exhibit D Tenant Operations Inquiry
Schedule 1 List of Permissible Hazardous Materials and
to Exhibit D Quantities for Tenant
Exhibit E List of Additional Insureds
Exhibit F Rules and Regulations
Exhibit G Guaranty
Exhibit H Building Plans
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INDUSTRIAL LEASE
[FORM NET LEASE/MULTI-TENANT]
THIS LEASE ("Lease"), dated May 7, 1997, is made and entered into by
and between BR/NO LA. Properties, LLC ("Landlord") and Morgan Products, Ltd.,
doing business in Louisiana as Morgan Distribution ("Tenant") upon the following
terms and conditions:
ARTICLE I - DEFINITIONS
Unless the context otherwise specifies or requires, the following terms
shall have the meanings specified herein:
1.01 Building. The term "Building" shall mean that certain
office/warehouse building located at 11401 Industriplex Boulevard, Baton Rouge,
Louisiana 70809 together with all related site land, improvements, parking
facilities, common areas, driveways, sidewalks and landscaping.
1.02.01 Temporary Premises. Tenant will have the use of Suite 170 at
11441 Industriplex Boulevard rent free from May 1, 1997 up to the time Tenant
accepts occupancy of the Premises as hereinbleow defined subject to the same
terms and conditions of this Lease.
1.02 Premises. The term "Premises" shall mean Space No.1 in the
Building, as more particularly outlined on the drawing attached hereto as
Exhibit A and incorporated herein by reference.
1.03 Rentable Area of the Premises. The term " Rentable Area of the
Premises" shall mean 22,596 square feet, which Landlord and Tenant have
stipulated as the Rentable Area of the Premises.
1.04 Lease Term. The terms "Lease Term" or "Term" shall mean the
period between the Commencement Date and the Expiration Date (as such terms are
hereinafter defined), unless sooner terminated or renewed as otherwise provided
in this Lease.
1.05 Commencement Date. Subject to adjustment as provided in
Article 3, the term "Commencement Date" shall mean August 1, 1997.
1.06 Expiration Date. Subject to adjustment as provided in Article
3, the term "Expiration Date" shall mean July 31, 2002.
1.07 Base Rent. Subject to adjustment as provided in Article 4, the
term "Base Rent" shall mean seven thousand one hundred fifty five and 40/100
Dollars ($7,155.40) per month in year one (1), seven thousand five hundred
thirty two and 00/100 Dollars ($7,532.00) per month in year two (2), eight
thousand two and 75/100 Dollars ($8,002.75) per month in year three (3) and
eight thousand four hundred seventy three and 50/100 Dollars ($8,473.50) per
month in years four (4) and five (5).
1.08 Tenant's Percentage Share. The term "Tenant's Percentage
Share" shall mean fifty three and 32/100 percent (53.32%) with respect to
Operating Expenses (as hereinafter defined), mean fifty three and 32/100 percent
(53.32%) with respect to Property Taxes (as hereinafter defined), mean fifty
three and 32/100 percent (53.32%) with respect to Insurance Expenses (as
hereinafter defined) and mean fifty three and 32/100 percent (53.32%) with
respect to Tenant's law compliance obligations under Section 6.02(C) of this
Lease and for all other purposes under this Lease.
1.09 Security Deposit. The term "Security Deposit" shall mean five
thousand and 00/100 Dollars ($5,000.00).
1.10 Tenant's Permitted Use. The term "Tenant's Permitted Use"
shall mean general office and warehouse facility for storage and distribution of
supplies and products and no other use.
1.11 Landlord's Address For Notices. The term "Landlord's Address
for Notices" shall mean Sealy & Company, Inc. 110 James Drive West, Suite 218,
St. Rose, Louisiana 70087, with a copy to The Sealy Companies, 333 Texas, Suite
1450, Shreveport, Louisiana 71101: Attn: Mark P. Sealy.
1.12 Tenant's Address For Notices. The term "Tenant's Address for
Notices" shall mean Morgan Distribution 303 Mulberry Drive Mechanicsburg, PA
17055 Attn: President with copy to Ed Miller Nisen & Elliott 200 West Adams
Street, Chicago, IL 60606.
1.13 Brokers. The term "Brokers" shall mean Sealy & Company, Inc.
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1.14 [Paragraph intentionally deleted]
ARTICLE II- PREMISES
2.01 Lease of Premises. Landlord hereby leases the Premises to
Tenant, and Tenant hereby leases the Premises from Landlord, upon all of the
terms, covenants and conditions contained in this Lease. On the Commencement
Date described herein, Landlord shall deliver the Premises to Tenant in
substantial conformance with the Work Letter Agreement attached hereto as
Exhibit B.
2.02 Acceptance of Premises. Tenant acknowledges that except as
specifically set forth herein Landlord has not made any representation or
warranty with respect to the condition of the Premises or the Building or with
respect to the suitability or fitness of either for the conduct of Tenant's
Permitted Use or for any other purpose. Prior to Tenant's taking possession of
the Premises, Landlord or its designee and Tenant will walk the Premises for the
purpose of reviewing the condition of the Premises (and the condition of
completion and workmanship of any tenant improvements which Landlord is required
to construct in the Premises pursuant to this Lease); after such review, Tenant
shall execute a Suite Acceptance Letter in the form and content of Exhibit C,
accepting the Premises.
ARTICLE III - TERM
3.01 Except as otherwise provided in this Lease, the Lease Term
shall be for the period described in Section 1.04 of this Lease, commencing on
the Commencement Date described in Section 1.05 of this Lease and ending on the
Expiration Date described in Section 1.06 of this Lease; provided, however,
that, if, for any reason, Landlord is unable to deliver possession of the
Premises on the date described in Section 1.05 of this Lease, Landlord shall not
be liable for any damage caused thereby, nor shall the Lease be void or
voidable, but, rather, the Lease Term shall commence upon, and the Commencement
Date shall be, the date that possession of the Premises is so tendered to Tenant
(except for Tenant-caused delays which shall not be deemed to delay commencement
of the Lease Term), and the Expiration Date described in Section 1.06 of this
Lease shall be extended by an equal number of days. Landlord will provide Tenant
with fifteen (15) days advance notice of the revised commencement date.
ARTICLE IV - RENTAL; ADJUSTMENTS
4.01 Definitions. As used herein,
(A) "Property Taxes" shall mean the aggregate amount
of all real estate taxes, assessments (whether they be general or
special), sewer rents and charges, transit taxes, taxes based upon the
receipt of rent and any other federal, state or local governmental
charge, general, special, ordinary or extraordinary (but not including
income or franchise taxes, capital stock, inheritance, estate, gift, or
any other taxes imposed upon or measured by Landlord's gross income or
profits, unless the same shall be imposed in lieu of real estate taxes
or other ad valorem taxes), which Landlord shall pay or become
obligated to pay in connection with the Building, or any part thereof.
Taxes shall include all fees and costs, including attorneys' fees,
appraisals and consultants' fees, incurred by Landlord in seeking to
obtain a reduction of, or a limit on the increase in, any Taxes,
regardless of whether any reduction or limitation is obtained. Taxes
for any calendar year shall be Taxes which are due for payment [words
intentionally deleted] during such year. If at any time during the
Lease Term the method of taxation then prevailing shall be altered so
that any new tax, assessment, levy, imposition or charge shall be
imposed upon Landlord in place or partly in place of any such Taxes, or
contemplated increase in any such Taxes, and shall be measured by or be
based in whole or in part upon the Building or the rents or other
income from the Building, then all such new taxes, assessments, levies,
impositions or charges, to the extent that they are so measured or
based, shall be included in Taxes to the extent that such items would
be payable if the Building was the only property of Landlord subject to
same and the income received by Landlord from the Building was the only
income of Landlord. Taxes shall also include any personal property
taxes imposed upon the furniture, fixtures, machinery, equipment,
apparatus, systems and appurtenances of Landlord used in connection
with the Building.
(B) "Operating Expenses" shall mean all costs, fees,
disbursements and expenses paid or incurred by or on behalf of Landlord
in the operation, ownership, maintenance, insurance, management,
replacement and repair of the Building (excluding Property Taxes).
Operating Expenses shall not include costs of alteration of the
premises of tenants of the Building, depreciation charges, interest and
principal payments on mortgages, ground rental payments, real estate brokerage
and leasing commissions, expenses incurred in enforcing obligations of tenants
of the Building, salaries and other compensation of executive officers of the
managing agent of the Building senior to the Building manager, costs of any
special service provided to any one tenant of the Building but not to tenants of
the Building generally, and costs of marketing or advertising the Building.
(C) "Insurance Expenses" shall mean all costs, fees,
disbursements and expenses paid or incurred by or on behalf of Landlord
for premiums for hazard, "all risk", casualty, rent interruption and
liability insurance and all other insurance, obtained by Landlord in
connection with or relating to the Building.
[Paragraph intentionally deleted]
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4.02 Base Rent. During the Lease Term, Tenant shall pay to Landlord
as rental for the Premises the Base Rent described in Section 1.07 above,
subject to the following adjustments (herein collectively called the "Rent
Adjustments"):
(A) [Paragraph intentionally deleted]
(B) During each calendar year during the Lease Term, the Base
Rent payable by Tenant to Landlord, as adjusted pursuant to Section 4.02(A)
above, shall be increased by Tenant's Percentage Share of the Property Taxes for
such year (the "Tax Adjustment").
(C) During each calendar year during the Lease Term, the Base
Rent payable by Tenant to Landlord, as adjusted pursuant to Section 4.02(A)
above, also shall be increased by Tenant's Percentage Share of the Operating
Expenses paid or incurred by Landlord during such year (the "Operating Expense
Adjustment").
(D) During each calendar year during the Lease Term, the Base
Rent payable by Tenant to Landlord, as adjusted pursuant to Section 4.02(A)
above, also shall be increased by Tenant's Percentage Share of the Insurance
Expenses for such year (the "Insurance Adjustment").
(E) The Tax Adjustment, the Operating Expense Adjustment and
the Insurance Adjustment are hereinafter referred to collectively as the "Tax,
Operating Expense and Insurance Adjustments".)
4.03 Adjustment Procedure; Estimates. The Tax, Operating Expense
and Insurance Adjustments specified in Sections 4.02(B), 4.02(C) and 4.02(D)
shall be determined and paid as follows:
(A) During each calendar year during the Lease Term, Landlord
shall give Tenant written notice of Landlord's reasonable estimate of
amounts payable under Sections 4.02(A), 4.02(B) and 4.02(C) for that
calendar year. On or before the first day of each calendar month during
the calendar year, Tenant shall pay to Landlord one-twelfth (1/12th) of
such estimated amounts; provided, however, that, not more often than
quarterly, Landlord may, by written notice to Tenant, revise its
estimate for such year, and subsequent payments by Tenant for such year
shall be based upon such revised estimate.
(B) Within ninety (90) days after the close of each calendar
year in which any Rent Adjustment is made or as soon thereafter as is
practicable, Landlord shall deliver to Tenant a statement of that
year's Property Taxes, Operating Expenses and Insurance Expenses, and
the actual Tax, Operating Expense and Insurance Expense Adjustments to
be made pursuant to Sections 4.02(B), 4.02(C) and 4.02(D) for such
calendar year, as determined and certified by Landlord (the "Landlord's
Statement") and such Landlord's Statement shall be binding upon
Landlord and Tenant, except as provided in Section 4.04 below. If the
amount of the actual Tax Adjustment, Insurance Adjustment or Operating
Expense Adjustment is more than the estimated payments for the Tax
Adjustment, Insurance Adjustment or Operating Expense Adjustment for
such calendar year made by Tenant, Tenant shall pay the deficiency to
Landlord upon receipt of Landlord's Statement. If the amount of the
actual Tax Adjustment, Insurance Adjustment or Operating Expense
Adjustment is less than the estimated payments for such calendar year
made by Tenant, any excess shall be credited against Rent (as
hereinafter defined) next payable by Tenant under this Lease or, if the
Lease Term has expired, any excess thereof shall be paid to Tenant
within ninety (90) days. No delay in providing the statements described
in this Section 4.03(B) shall act as a waiver of Landlord's right to
payment under Sections 4.02(B), 4.02(C) or 4.02(D) above.
Notwithstanding the foregoing, Tenant's right to receive any credit or
payment pursuant to the preceding sentences of this Section 4.03(B) is
conditioned on this Lease being in full force and effect and Tenant not
being in default under this Lease on the date such credit or payment is
due.
(C) If this Lease shall terminate on a day other than the end
of a calendar year, the amount of the Tax, Operating Expense and Insurance
Adjustments to be paid pursuant to Sections 4.02(B), 4.02(C) and 4.02(D) that is
applicable to calendar year in which such termination occurs shall be prorated
on the basis of the number of days from the commencement date January 1 of the
calendar year to the termination bears to 365. If this Lease shall commence on a
day other than the beginning of a calendar year, the amount of the Tax,
Operating Expense and Insurance Adjustments to be paid pursuant to Section
4.02(B), 4.02(C) and 4.02(D) that is applicable to the calandar year in which
the Lease commences shall be prorated on the basis of the number of days from
the commencement date bears to 365. The termination of this Lease shall not
affect the obligations of Landlord and Tenant pursuant to Sections 4.03(B) and
4.03(C) to be performed after such termination.
4.04 Review of Landlord's Statement. Provided this Lease is in full
force and effect and that Tenant is not then in default under this Lease
Landlord's books and records shall be available to Tenant for inspection at
Landlord's office in Shreveport, Louisiana, at reasonable times. Tenant shall
have the right, at its cost and expense, to examine and audit Landlord's books
and records relative to such Operating Expenses, provided such examination or
audit shall be conducted so as not to disrupt or interfere with Landlord's
operations. [Remainder of sentence intentionally deleted]
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(A) [Paragraph intentionally deleted]
(B) [Paragraph intentionally deleted]
(C) [Paragraph intentionally deleted]
4.05 Payment. Concurrently with the execution hereof, Tenant shall
pay Landlord Base Rent for the first calendar month of the Lease Term.
Thereafter the Base Rent described in Section 1.07, as adjusted in accordance
with Section 4.02, shall be payable in advance on the first day of each calendar
month. If the Commencement Date is other than the first day of a calendar month,
the prepaid Base Rent for such partial month shall be prorated in the proportion
that the number of days this Lease is in effect during such partial month bears
to the total number of days in the calendar month. All Rent, and all other
amounts payable to Landlord by Tenant pursuant to the provisions of this Lease,
shall be paid to Landlord, without notice, demand, abatement, deduction or
offset, in lawful money of the United States at Landlord's office in the
Building or to such other person or at such other place as Landlord may
designate from time to time by written notice given to Tenant. No payment by
Tenant or receipt by Landlord of a lesser amount than the correct Rent due
hereunder shall be deemed to be other than a payment on account; nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment be deemed to effect or evidence an accord and satisfaction; and Landlord
may accept such check or payment without prejudice to Landlord's right to
recover the balance or pursue any other remedy in this Lease or at law or in
equity provided.
4.06 Late Charge; Interest. Tenant acknowledges that the late
payment of Base Rent or any other amounts payable by Tenant to Landlord
hereunder (all of which shall constitute additional rent to the same extent as
Base Rent) will cause Landlord to incur administrative costs and other damages,
the exact amount of which would be impracticable or extremely difficult to
ascertain. Landlord and Tenant agree that if Landlord does not receive any such
payment on or before five (5) business days after the date the payment is due,
and 24 hours after written notice Tenant shall to Landlord, as additional
rental, (a) a late charge equal to five percent (5%) of the overdue amount to
cover such additional administrative costs; and (b) interest on the delinquent
amounts at the lesser of the maximum rate permitted by law if any or twelve
percent (12%) per annum from the date due to the date paid. The provision for
written notice hereinabove shall expire if on one or more occasions during the
same calendar year Tenant's payment of Base Rent is late.
4.07 Additional Rental. For purposes of this Lease, all amounts
payable by Tenant to Landlord pursuant to this Lease, whether or not denominated
as such, shall constitute additional rental hereunder. Such additional rental,
together with the Base Rent and Rent Adjustments, shall sometimes be referred to
in this Lease as "Rent".
4.08 Additional Taxes. In addition to the Rent and other charges to
be paid by Tenant hereunder, Tenant shall reimburse Landlord upon demand for all
taxes payable by or imposed upon Landlord upon or with respect to: any fixtures
or personal property located in the Premises; any leasehold improvements made in
or to the Premises by or for Tenant; the Rent payable hereunder, including,
without limitation, any gross receipts tax, license fee or excise tax levied by
any governmental authority; the possession, leasing, operation, management,
maintenance, alteration, repair, use or occupancy of any portion of the Premises
(including, without limitation, any applicable possession interest taxes); or
this transaction or any document to which Tenant is a party creating or
transferring an interest or an estate in the Premises.
ARTICLE V - SECURITY DEPOSIT
5.01 Upon the execution of this Lease, Tenant shall deposit with
Landlord the Security Deposit described in Section 1.09 above. The Security
Deposit is made by Tenant to secure the faithful performance of all the terms,
covenants and conditions of this Lease to be performed by Tenant. If Tenant
shall default with respect to any covenant or provision hereof, Landlord may
use, apply or retain all or any portion of the Security Deposit to cure such
default or to compensate Landlord for any loss or damage which Landlord may
suffer thereby. If Landlord so uses or applies all or any portion of the
Security Deposit, Tenant shall
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immediately upon written demand deposit cash with Landlord in an amount
sufficient to restore the Security Deposit to the full amount hereinabove
stated. Landlord shall not be required to keep the Security Deposit separate
from its general accounts and Tenant shall not be entitled to interest on the
Security Deposit. Within thirty (30) days after the expiration of the Lease Term
and the vacation of the Premises by Tenant, the Security Deposit, or such part
as has not been applied to cure the default, shall be returned to Tenant. In the
event of any bankruptcy or other proceeding initiated by or against Tenant, it
is agreed that all such Security Deposit held hereunder shall be deemed to be
applied by Landlord to rent, sales tax and all other charges due from Tenant to
Landlord for the last month of the Term and each preceding month until such
Security Deposit is fully applied.
ARTICLE VI - USE OF PREMISES
6.01 Tenant's Permitted Use. Tenant shall use the Premises only for
Tenant's Permitted Use as set forth in Section 1 .10 above and shall not use or
permit the Premises to be used for any other purpose without the prior written
consent of Landlord. Tenant shall, at its sole cost and expense, obtain all
governmental licenses and permits required to allow Tenant to conduct Tenant's
Permitted Use. Landlord disclaims any warranty that the Premises are suitable
for Tenant's use and Tenant acknowledges that it has had a full opportunity to
make its own determination in this regard.
6.02 Compliance With Laws and Other Requirements.
(A) Tenant shall cause the Premises to comply in all material
respects with all laws, ordinances, regulations and directives of any
governmental authority having jurisdiction including without limitation
any certificate of occupancy and any law, ordinance, regulation,
covenant, condition or restriction affecting the Building or the
Premises which in the future may become applicable to the Premises
(collectively "Applicable Laws").
Landlord represents and warrants that at the time of
tender of possession of the Premises to Tenant, the Premises and the
Building shall comply with all federal, state, municipal and other
laws, ordinances, rules and regulations applicable to the Premises, and
Building and improvements thereon and zoned for general office and the
storage and distrubution of building products.
(B) Tenant shall not use the Premises, or permit the Premises
to be used, in any manner which: (a) violates any Applicable Law; (b)
causes or is reasonably likely to cause damage to the Building or the
Premises; (c) violates a requirement or condition of any fire and
extended insurance policy covering the Building and/or the Premises, or
increases the cost of such policy; (d) constitutes or is reasonably
likely to constitute a nuisance, annoyance or inconvenience to other
tenants or occupants of the Building or its equipment, facilities or
systems; (e) interferes with, or is reasonably likely to interfere
with, the transmission or reception of microwave, television, radio,
telephone or other communication signals by antennae or other
facilities located in the Building; or (f) violates the Rules and
Regulations described in Article XX.
(C) In addition to any other amounts payable by Tenant to
Landlord hereunder, Tenant shall pay to Landlord, as and when billed to
Tenant and as additional rental, Tenant's Percentage Share of the cost
of any improvements, capital expenditures, repairs or replacements to
the Building, or any equipment or machinery used in connection with the
Building, if any such item is required under any Applicable Law which
was not applicable to the Building at the time the Building was
constructed; provided, however, that any such costs which are properly
charged to a capital account shall not be payable in a single year but
shall instead be amortized over their useful lives, as determined by
the Landlord in accordance with generally acceptable accounting
principles, and only the annual amortization amount (prorated based on
the number of days of the Lease term in the calendar year) shall be
payable by the Tenant with respect to any calendar year subject to
Landlord's requirements in Section 8.01 herein.
6.03 Hazardous Materials.
(A) No Hazardous Materials (as defined herein) shall be
Handled (as defined herein) upon, about, above or beneath the Premises
or any portion of the Building by or on behalf of a Responsible Party
(as defined herein), unless the Hazardous Materials are listed in
Exhibit D hereto and then only in the quantities listed in the exhibit.
Any such Hazardous Materials so Handled, or the presence of which is a
result of the act or omission of a Responsible Party, shall be known as
Tenant's Hazardous Materials. Notwithstanding the foregoing, normal
quantities of those Hazardous Materials customarily used in the conduct
of general administrative and executive office activities (e.g., copier
fluids and cleaning supplies) may be Handled at the Premises without
Landlord's prior written consent. Tenant's Hazardous Materials shall be
Handled at all times in compliance with all applicable Environmental
Laws (as defined herein).
(B) Notwithstanding the obligation of Tenant to indemnify
Landlord pursuant to this Lease, Tenant shall, at its sole cost and
expense, promptly take all actions required by any federal, state or
local governmental agency or political subdivision, or necessary for
Landlord to make full economic use of the Premises or any portion of
the Building, which requirements or necessity arises from the Handling
of Tenant's Hazardous Materials upon, about, above or beneath the
Premises or any portion of the Building. Such actions shall include,
but not be limited to, the investigation of the environmental condition
of the Premises or any portion of the Building, the preparation of any
feasibility studies or reports and the performance of any cleanup,
remedial, removal or restoration work. Tenant shall take all actions
necessary to restore the Premises or any portion of the Building to the
condition existing prior to the introduction of Tenant's Hazardous
Materials, notwithstanding any less stringent standards or remediation
allowable under applicable Environmental Laws. Tenant shall
nevertheless obtain Landlord's written approval prior to undertaking
any actions required by this Section, which approval shall not be
unreasonably withheld so long as such actions would not potentially
have a material adverse long-term or short-term effect on the Premises
or any portion of the Building.
(C) "Environmental Laws" means and includes all now and
hereafter existing statutes, laws, ordinances, codes, regulations,
rules, rulings, orders, decrees, directives, policies and requirements
by any federal, state or local governmental authority regulating,
relating to, or imposing liability or standards of conduct concerning
public health and safety or the environment.
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(D) "Hazardous Materials" means: (a) any material or
substance: (i) which is defined or becomes defined as a "hazardous
substance", Hazardous waste," Infectious waste," "chemical mixture or
substance," or "air pollutant" under Environmental Laws; (ii)
containing petroleum, crude oil or any fraction thereof; (iii)
containing polychlorinated biphenyls (PCB's); (iv) containing asbestos;
(v) which is radioactive; (b) any other material or substance
displaying toxic, reactive, ignitable or corrosive characteristics, as
all such terms are used in their broadest sense, and are defined or
become defined by Environmental Laws, or (c) materials which cause a
nuisance upon or waste to the Premises or any portion of the Building.
(E) "Handle," "handle," "Handled," "handled," "Handling" or
"handling" shall mean any installation, handling, generation, storage,
treatment, use, disposal, discharge, release, manufacture, refinement,
presence, migration, emission, abatement, removal, transportation or
any other activity of any type in connection with or involving
Hazardous Materials.
(F) "Responsible Party" shall mean Tenant, its subtenants and
its assignees, and their respective contractors, clients, officers,
directors, employees, agents, and invitees, or any of them, as the case
may be.
(G) Tenant agrees to maintain only the Hazardous Materials
listed in Schedule 1 to Exhibit D in the Premises and in or at the
Building and only in the quantities listed in Schedule 1 to Exhibit D.
Tenant also agrees that changes to the type and quantities of such
Tenant's Hazardous Materials may be done only with the prior written
consent of the Landlord, which consent shall not be unreasonably
withheld. Tenant further agrees that Landlord shall have the right to
inspect the Premises to verify the types and quantities of the
materials stored therein.
(H) Tenant agrees to execute affidavits, representations and
the like from time to time at Landlord's request conveying Tenant's
best knowledge and belief regarding the presence of Hazardous Materials
in the Premises or in or at the Building.
INSERT 6.04 on Page 6-A attached hereto is incorporated herof by this
reference.
ARTICLE VII - UTILITIES AND SERVICES
7.01 Services. Landlord shall provide the normal utility service
connection into the Premises and Tenant, at its sole expense, shall arrange with
the appropriate utility company to install all necessary connections and without
fail to maintain in continuous operation during the entire term of the Lease,
all such utility service, whether or not Tenant is in actual possession of the
Premises. Tenant shall pay for all water, gas, heat, light, power, sweeping and
other janitorial services, rubbish and trash disposal, sewer and any other
utilities and services supplied in, about or related to the Premises, together
with any taxes thereon, connection charges and deposits, and also shall pay for
all electrical light bulbs, lamps and tubes in connection therewith. If any such
utilities and services are not separately metered to Tenant, Tenant shall pay a
reasonable portion to be determined by Landlord of all charges jointly metered
with other premises. Landlord reserves the right during the Term of this Lease
to grant easements or public utility purposes on, over, or below the Premises
without any abatement in rent, provided that said easements do not unreasonably
interfere with the normal operation of the business conducted by Tenant in the
Premises. Landlord shall not be required to pay for any service, supplies or
upkeep in connection with the Premises. Tenant shall arrange for and pay for all
telephone service and equipment, including any additions or alterations to the
existing telephone service boards and conduit, which shall be completed without
interference to the service and/or equipment of other tenants in the Building
and which shall be appropriately labeled upon the termination of this Lease.
Any amounts which Tenant is required to pay to Landlord pursuant to
this Section 7.01 shall be payable upon demand by Landlord and shall constitute
additional rent or Rent under this Lease.
7.02 Interruption of Services. Landlord shall not be liable for any
failure to furnish, stoppage of, or interruption in furnishing any of the
services or utilities described in Section 7.01, when such failure is caused by
accident, breakage, repairs, strikes, lockouts, labor disputes, labor
disturbances, governmental regulation, civil disturbances, acts of war,
moratorium or other governmental action, or any other cause beyond Landlord's
reasonable control, and, in such event, Tenant shall not be entitled to any
damages nor shall any failure or interruption abate or suspend Tenant's
obligation to pay Base Rent and additional rental required under this Lease or
constitute or be construed as a constructive or other eviction of Tenant.
Further, in the event any governmental authority or public utility promulgates
or revises any law, ordinance, rule or regulation, or issues mandatory controls
or voluntary controls relating to the use or conservation of energy, water, gas,
light or electricity, the reduction of automobile or other emissions, or the
provision of any other utility or service, Landlord may take any reasonably
appropriate action to comply with such law, ordinance, rule, regulation,
mandatory control or voluntary guideline without affecting Tenant's obligations
hereunder. Tenant recognizes that any security services provided by Landlord at
the Building are for the protection of Landlord's property and under no
circumstances shall Landlord be responsible for, and Tenant waives any rights
with respect to, providing security or other protection for Tenant or its
employees, invitees or property in or about the Premises or the Building.
ARTICLE VIII - MAINTENANCE AND REPAIRS
8.01 Landlord's Obligations.
(A) During the Lease Term, Landlord shall, at its expense,
maintain only the roof, foundation and the structural soundness of the
exterior walls (excluding all windows, plate glass, doors and pest
control and extermination) of the portion of the Building containing
the Premises in good repair and condition except for reasonable wear
and tear. Landlord also shall maintain, at its expense, subject to
reimbursement as part of Operating Expenses, the downspouts and fire
safety sprinkler system of the Building. If Tenant determines that any
such repair or maintenance by Landlord is required, Tenant shall
promptly give written notice to Landlord of the need for such repair or
maintenance and unless Landlord in good faith disagrees with such
determination by Tenant, Landlord shall proceed with reasonable
promptness to perform such maintenance. Except as otherwise expressly
provided in this Lease, there shall be no abatement or reduction of
Rent, nor shall there be any liability of Landlord, by reason of any
damage, injury or inconvenience to, or interference with, Tenant or
Tenant's business or operations arising from the making of, or failure
to make, any maintenance, repairs, alteration or additions in or to any
portion of the Building.
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<PAGE>
INSERT 6.04
Notwithstanding anything to the contrary contained in this Lease, including
Article VI and Exhibit D, Tenant shall have no liability of any kind to Landlord
as to Hazardous Materials on the Premises or the Building caused or permitted by
any other tenants in the Building, their agents, employees, contractors,
subtenants or invitees or otherwise existing prior to the execution of the
Lease.
- 6-A -
<PAGE>
(B) Tenant shall, at its sole cost, pay for any damage to the
roof, foundation and/or external walls caused by any act, omission,
negligence or fault of Tenant or any employee, agent or contractor of
Tenant.
8.02 Tenant's Obligations. During the Lease Term, Tenant shall, at
its risk and at its own sole cost and expense, maintain all other parts of the
Building and other improvements in or on the Premises in good repair and
condition (including all necessary replacements), including, but not limited to,
heating, ventilation and air conditioning systems, all glass elements, doors
(including dock doors), dock bumpers, regular mowing of any grass, trimming,
weed removal, regular removal of debris and, if applicable, Tenant shall pay
Tenant's Percentage Share with respect to Operating Expenses of maintenance
expense for any spur railroad track serving the Premises, and Tenant agrees to
sign a joint maintenance agreement with the railroad company servicing the
Premises, if requested by such railroad company. Landlord Tenant shall repaint
at Tenant's expense the exterior doors or other exposed parts of the Building
which reasonably require periodic repainting to prevent deterioration. However,
in a multi-occupancy Building, Landlord reserves the right to perform lawn and
other common area maintenance (including, without limitation, exterior painting)
and in such instance Tenant agrees to pay Landlord for lawn and other common
area maintenance (including, without limitation, exterior painting) based on
Tenant's Percentage Share with respect to Operating Expenses. Tenant shall take
good care of all property and its fixtures, including all landscaping, and
suffer no waste. Tenant shall engage a certified pest control firm to perform
regular (not less frequent than monthly but more frequent if Landlord determines
the need therefor) extermination for pests including, but not limited to,
roaches rodents and termites. Should Tenant neglect to keep and maintain the
Premises as required herein, the Landlord shall have the right, but not the
obligation, to have the work done and any reasonable costs plus a ten percent
(10%) overhead charge therefor shall be charged to Tenant as additional rental
and shall become payable by Tenant with the payment of the rental next due under
this Lease. In connection with Tenant's maintenance and repair of the heating,
ventilation and air conditioning systems, Tenant shall provide Landlord during
the Term of this Lease and any renewal hereof with a duplicate original of a
maintenance contract, in form and substance acceptable to Landlord, with an HVAC
maintenance firm acceptable to Landlord. Further, Tenant shall be responsible
for, and upon demand by Landlord shall promptly reimburse Landlord for, any
damage to any portion of the Building or the Premises caused by (a) Tenant's
activities in the Building or the Premises; (b) the performance or existence of
any alterations, additions or improvements made by Tenant in or to the Premises;
(c) the installation, use, operation or movement of Tenant's property in or
about the Building or the Premises; or (d) any act or omission by Tenant or its
officers, partners, employees, agents, contractors or invitees. Landlord
represents that there will be a five (5) year manufacturers warranty on the HVAC
compressors that will be assigned to Tenant upon execution of this Lease.
8.03 Tenant shall, at its own cost and expense, repair or replace
any damage or injury to all or any part of the Premises and Building, caused by
Tenant or Tenant's agents, employees, invitees, licensees or visitors; provided,
however, if Tenant fails to make such repairs or replacements promptly, Landlord
may, at its option, make sure repairs or replacements and Tenant shall reimburse
the cost, plus a ten percent (10%) overhead charge therefor, to Landlord on
demand.
8.04 Tenant shall not commit or allow any waste or damage to be
committed on any portion of the Premises, and at the termination of this Lease,
by lapse of time or otherwise, Tenant shall deliver the Premises to Landlord,
broom clean with all debris removed, in as good condition as at the date of
first possession of Tenant, ordinary wear and tear excepted. Tenant understands
the "ordinary wear and tear" does not mean Tenant shall be relieved of
performing its obligations under this Lease relating to maintenance, repairs and
replacements as provided for in the Lease. The cost and expense or any repairs
necessary to restore the condition of the Premises shall be borne by Tenant, and
if Landlord undertakes to restore the Premises, it shall have a right of
reimbursement against Tenant.
8.05 Landlord's Rights. Landlord and its contractors shall have the
right, at all reasonable times, to enter upon the Premises to make any repairs
to the Premises or the building reasonably required or deemed reasonably
necessary by Landlord and to erect such equipment, including scaffolding, as is
reasonably necessary to effect such reparis. During the pendency of such
repairs, Landlord shall use resonable efforts to minimize any material
interruption of Tenant's business; provided, that if such repairs by Landlord
are required to remedy an emergency situation or to cure a breach or default by
Tenant under this Lease, Landlord shall not be obligated to minimize such
interruption.
ARTICLE IX - ALTERATIONS, ADDITIONS AND IMPROVEMENTS
9.01 Landlord's Consent; Conditions. Tenant shall not make or
permit to be made any alterations, additions, or improvements in or to the
Premises ("Alterations") without the prior written consent of Landlord. Landlord
may impose as a condition to such consent such requirements as Landlord in its
sole discretion deems necessary or desirable including without limitation:
Tenant's submission to Landlord, for Landlord's prior written approval, of all
plans and specifications relating to the Alterations; Landlord's prior written
approval of the time or times when the Alterations are to be performed;
Landlord's prior written approval of the contractors and subcontractors
performing work in connection with the Alterations; Tenant's receipt of all
necessary permits and approvals from all governmental authorities having
jurisdiction over the Premises prior to the construction of the Alterations;
Tenant's written notice of whether the Alterations include the Handling of any
Hazardous Materials, pursuant to Section 6.03; Tenant's delivery to Landlord of
such bonds and insurance as Landlord shall reasonably require; and Tenant's
payment to Landlord of all costs and expenses incurred by Landlord because of
Tenant's Alterations, including but not limited to costs incurred in reviewing
the plans and specifications for , and the progress of, the Alterations.
9.02 Performance of Alterations Work. All work relating to the
Alterations shall be performed in compliance with the plans and specifications
approved by Landlord, all applicable laws, ordinances, rules, regulations and
directives of all governmental authorities having jurisdiction and the
requirements of all carriers of insurance on the Premises and the Building, the
Board of Underwriters, Fire Rating Bureau, or similar organization. All work
shall be performed in a diligent, first class manner and so as not to
unreasonably interfere with any other tenants or occupants of the Building. All
costs incurred by Landlord relating to the Alterations shall be payable to
Landlord by Tenant as additional rent upon demand.
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<PAGE>
9.03 Liens. Tenant shall pay when due all costs for work performed
and materials supplied to the Premises. Tenant shall keep Landlord, the Premises
and the Building free from all liens, stop notices and violation notices
relating to the Alterations or any other work performed for, materials furnished
to or obligations incurred by Tenant and Tenant shall protect, indemnify, hold
harmless and defend Landlord, the Premises and the Building of and from any and
all loss, cost, damage, liability and expense, including attorneys' fees,
arising out of or related to any such liens or notices. Further, Tenant shall
give Landlord not less than seven (7) business days prior written notice before
commencing any Alterations in or about the Premises to permit Landlord to post
appropriate notices of non-responsibility. Tenant shall also secure, prior to
commencing any Alterations, at Tenant's sole expense, a completion and lien
indemnity bond satisfactory to Landlord for such work. During the progress of
such work, Tenant shall, upon Landlord's request, furnish Landlord with sworn
contractor's statements and lien waivers covering all work theretofore
performed. Tenant shall satisfy or otherwise discharge all liens, stop notices
or other claims or encumbrances within ten (10) days after Landlord notifies
Tenant in writing that any such lien, stop notice, claim or encumbrance has been
filed. If Tenant fails to pay and remove such lien, claim or encumbrance within
such ten (10) days, Landlord, at its election, may pay and satisfy the same and
in such event the sums so paid by Landlord, with interest from the date of
payment at the rate set forth in Section 4.06 hereof for amounts owed Landlord
by Tenant shall be deemed to be additional rent due and payable by Tenant at
once without notice or demand.
9.04 Lease Termination. Except as provided in this Section 9.04,
upon expiration or earlier termination of this Lease Tenant shall surrender the
Premises to Landlord in the same condition as when received, subject to
reasonable wear and tear. All Alterations shall become a part of the Premises
and shall become the property of Landlord upon the expiration or earlier
termination of this Lease, unless Landlord shall, by written notice given to
Tenant, require Tenant to remove some or all of Tenant's Alterations, in which
event Tenant shall promptly remove the designated Alterations and shall promptly
repair any resulting damage, all at Tenant's sole expense. All business and
trade fixtures, machinery and equipment, furniture, movable partitions and items
of personal property owned by Tenant or installed by Tenant at its expense in
the Premises shall be and remain the property of Tenant; upon the expiration or
earlier termination of this Lease, Tenant shall, at its sole expense, remove all
such items and repair any damage to the Premises or the Building caused by such
removal. If Tenant fails to remove any such items or repair such damage promptly
after the expiration or earlier termination of the Lease, Landlord may, but need
not, do so with no liability to Tenant, and Tenant shall pay Landlord the cost
thereof upon demand.
ARTICLE X - INDEMNIFICATION AND INSURANCE
10.01 Indemnification. Tenant [text intentionally omitted] agrees to
protect, indemnify, hold harmless and defend Landlord and any mortgagee or
ground lessor, and each of their respective partners, directors, officers,
agents and employees, successors and assigns, with respect to any liability
arising out of Tenant's occupancy of said Premises including without limitation
the following [text intentionally omitted]:
(A) any and all loss, cost, damage, liability or expense as
incurred (including but not limited to actual attorneys' fees and legal
costs) arising out of or related to any claim, suit or judgment brought
by or in favor of any person or persons for damage, loss or expense due
to, but not limited to, bodily injury, including death, or property
damage sustained by such person or persons which arises out of, is
occasioned by or is in any way attributable to the use or occupancy of
the Premises or any portion of the Building by Tenant or the acts or
omissions of Tenant or its agents, employees, contractors, clients,
invitees or subtenants except that caused by the sole active negligence
of Landlord or its agents or employees. Such loss or damage shall
include, but not be limited to, any injury or damage to, or death of,
Landlord's employees or agents or damage to the Premises or any portion
of the Building.
(B) any and all environmental damages which arise from: (i)
the Handling of any Tenant's Hazardous Materials, as defined in Section
6.03 or (ii) the breach of any of the provisions of this Lease. For the
purpose of this Lease, "environmental damages" shall mean (a) all
claims, judgments, damages, penalties, fines, costs, liabilities, and
losses (including without limitation, diminution in the value of the
Premises or any portion of the Building, damages for the loss of or
restriction on the use of rentable or usable space or of any amenity of
the Premises or any portion of the Building, and from any adverse
impact of Landlord's marketing of space); (b) all reasonable sums paid
for settlement of claims, attorneys' fees, consultants' fees and
experts' fees; and (c) all costs incurred by Landlord in connection
with investigation or remediation relating to the Handling of Tenant's
Hazardous Materials, whether or not required by Environmental Laws,
necessary for Landlord to make full economic use of the Premises or any
portion of the Building, or otherwise required under this Lease. To the
extent that Landlord is strictly liable under any Environmental Laws,
Tenant's obligation to Landlord and the other indemnities under the
foregoing indemnification shall likewise be without regard to fault on
Tenant's part with respect to the violation of any Environmental Law
which results in liability to the indemnitee. Tenant's obligations and
liabilities pursuant to this Section 10.01 shall survive the expiration
or earlier termination of this Lease.
(C) any and all testing or investigation as may be requested
by any governmental agency or lender for the purpose of investigating
the presence of Tenant's Hazardous Materials that may not be in
compliance with Environmental Laws.
(D) Notwithstanding anything to the contrary contained herein,
nothing shall be interpreted or used to in any way affect, limit,
reduce or abrogate any insurance coverage provided by any insurers to
either Tenant or Landlord.
Notwithstanding anything to the contrary contained in this Lease, nothing herein
shall be construed to infer or imply that Tenant is a partner, joint venturer,
agent, employee, or otherwise acting by or at the direction of Landlord.
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<PAGE>
10.02 Property Insurance.
(A) At all times during the Lease Term, Tenant shall procure
and maintain, at its sole expense, "all-risk" property insurance, in an amount
not less than one hundred percent (100%) of the replacement cost covering (a)
all leasehold improvements in and to the Premises which are made at the expense
of Tenant; and (b) Tenant's trade fixtures, equipment and other personal
property from time to time situated in the Premises, including, without
limitation, all floor and wall coverings. The proceeds of such insurance shall
be used for the repair or replacement of the property so insured, except that if
not so applied or if this Lease is terminated following a casualty, the proceeds
applicable to the leasehold improvements shall be paid to Landlord and the
proceeds applicable to Tenant's personal property shall be paid to Tenant.
(B) At all times during the Lease Term, Tenant shall procure
and maintain business interruption insurance in such amount as will reimburse
Tenant for direct or indirect loss of earnings attributable to all perils
insured against in Section 10.02(A).
(C) Landlord shall, at all times during the Lease Term,
procure and maintain "all-risk" property insurance in the amount not less than
one hundred percent (100%) of the replacement cost covering the Premises, but
not the contents thereof, and the Building in which the Premises are located.
10.03 Liability Insurance.
(A) At all times during the Lease Term, Tenant shall procure
and maintain, at its sole expense, general liability insurance applying to the
use and occupancy of the Premises and the business operated by Tenant. Such
insurance shall have a minimum combined single limit of liability of at least
$2,000,000 per occurrence and a general aggregate limit of at least $3,000,000.
All such policies shall be written to apply to all bodily injury, property
damage, personal injury losses and shall be endorsed to include Landlord and its
agents, beneficiaries, partners, employees, and any deed of trust holder or
mortgagee of Landlord or any ground lessor as additional insureds. (A list of
the current persons and entities to be named as additional insureds is attached
hereto as Exhibit E.) Such liability insurance shall be written as primary
policies, not excess or contributing with or secondary to any other insurance as
may be available to the Landlord or additional insureds.
(B) Prior to the sale, storage, use or giving away of
alcoholic beverages on or from the Premises by Tenant or another person, Tenant,
at its own expense, shall obtain a policy or policies of insurance issued by a
responsible insurance company and in a form acceptable to Landlord saving
harmless and protecting Landlord and the Premises against any and all damages,
claims, liens, judgments, expenses and costs, including actual attorney's fees,
arising under any present or future law, statute, or ordinance of the State of
Louisiana or other governmental authority having jurisdiction of the Premises,
by reason of any storage, sale, use or giving away of alcoholic beverages on or
from the Premises. Such policy or policies of insurance shall have a minimum
combined single limit of $1,000,000 per occurrence and shall apply to bodily
injury, fatal or nonfatal; injury to means of supports and injury to property of
any person. Such policy or policies of insurance shall name the Landlord and its
agents, beneficiaries, partners, employees and any mortgagee of Landlord or any
ground lessor of Landlord as additional insureds. (A list of the current persons
and entities to be named as additional insureds is attached hereto as Exhibit
E.)
(C) Landlord shall, at all times during the Lease Term,
procure and maintain general liability insurance for the Building in which the
Premises are located. Such insurance shall have minimum combined single limit of
liability of at least Two Million Dollars ($2,000,000.00) per occurrence, and a
general aggregate limit of at least Three Million Dollars ($3,000,000.00). Such
policy shall be written to apply to all bodily injury, property damage, personal
injury losses and shall be endorsed to include Landlord, its agents,
beneficiaries, partners, employees and any deed of trust holder or mortgagee of
Landlord as insured parties as their interest may appear.
10.04 Workers' Compensation Insurance. At all times during the Lease
Term, Tenant shall procure and maintain Workers' Compensation Insurance in
accordance with the laws of the State of Louisiana, and Employers' Liability
insurance with a limit not less than $1,000,000 Bodily Injury Each Accident;
$1,000,000 Bodily Injury By Disease - Each Person; and $1,000,000 Bodily Injury
by Disease - Policy Limit.
10.05 Automobile Liability Insurance. At all times during the Lease
Term, Tenant shall provide and maintain, at its sole expense, commercial
automobile liability insurance including owned, non-owned and hired vehicles,
applying to the use of any vehicles arising out of the operations of Tenant.
Such insurance shall apply to bodily injury and property damage in a combined
single limit of not less than $1,000,000 per accident.
10.06 Policy Requirements. All insurance required to be maintained
by Tenant shall be issued by insurance companies authorized to do insurance
business in the State of Louisiana and rated not less than A-VII in Best's
Insurance Guide and a Standard and Poor's claims paying ability rating of not
less than AA. A certificate of insurance (or, at Landlord's option, copies of
the applicable policies) evidencing the insurance required under this Article X
shall be delivered to Landlord not less than thirty (30) days prior to the
Commencement Date. No such policy shall be subject to cancellation or
modification without thirty (30) days prior written notice to Landlord and to
any deed of trust holder, mortgagee or ground lessor designated by Landlord to
Tenant. Tenant shall furnish Landlord with a replacement certificate with
respect to any insurance not less than thirty (30) days prior to the expiration
of the current policy. Tenant shall have the right to provide the insurance
required by this Article X pursuant to blanket policies, but only if such
blanket policies expressly provide coverage to the Premises and the Landlord as
required by this Lease.
10.07 Waiver of Subrogation. Each party hereby waives any right of
recovery against the other for injury or loss covered by insurance, to the
extent of the injury or loss covered thereby. Any policy of insurance to be
provided by Tenant pursuant to this Article X shall contain a clause denying the
insurer any right of subrogation against Landlord.
10.08 Failure to Insure. If Tenant fails to maintain any insurance
which Tenant is required to maintain pursuant to this Article X, Tenant shall be
liable to Landlord for any loss or cost resulting from such failure to maintain.
Tenant may not self-insure against any risks required to be covered by insurance
without Landlord's prior written consent.
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<PAGE>
ARTICLE XI - DAMAGE OR DESTRUCTION
11.01 Total Destruction. Except as provided in Section 11.03 below,
this Lease shall automatically terminate if the Premises are totally destroyed.
11.02 Partial Destruction of Premises. If the Premises are damaged
by any casualty and, in Landlord's opinion, the Premises (exclusive of any
Alterations made to the Premises by Tenant) can be restored to its preexisting
condition within one hundred eighty (180) days after the date of the damage or
destruction, Landlord shall, upon written notice from Tenant to Landlord of such
damage, except as provided in Section 11.03, promptly and with due diligence
repair the damage to the Premises (exclusive of any Alterations to the Premises
made by Tenant, which shall be promptly repaired by Tenant at its sole expense)
and, until such repairs are completed, the Rent shall be abated from the date of
damage or destruction in the same proportion that the rentable area of the
portion of the Premises which is unusable by Tenant in the conduct of its
business bears to the total rentable area of the Premises. If such repairs
cannot, in Landlord's opinion, be made within said one hundred eighty (180) day
period, then Landlord shall allow Tenant [part of sentence intentionally
omitted] the right, by written notice given to the other within sixty (60) days
after the date of the damage or destruction, to terminate this Lease as of the
date of the damage or destruction.
11.03 Exceptions to Landlord's Obligations. Notwithstanding anything
to the contrary contained in this Article XI, Landlord shall have no obligation
to repair the Premises if either: (a) the Building in which the Premises are
located is so damaged as to require repairs to the Building exceeding twenty
percent (20%) of the full insurable value of the Building; or (b) Landlord
elects to demolish the Building in which the Premises are located; or (c) the
damage or destruction occurs less than two (2) years prior to the Termination
Date, exclusive of option periods. Further, Tenant's Rent shall not be abated if
either (i) the damage or destruction is repaired within five (5) business days
after Landlord receives written notice from Tenant of the casualty, or (ii)
tenant, or any officers, partners, employees, agents or invitees of Tenant, or
any assignee or subtenant of Tenant, is, in whole or in part, responsible for
the damage or destruction.
11.04 Waiver. The provisions contained in this Lease shall supersede
any contrary laws now or hereafter in effect relating to damage or destruction.
<PAGE>
ARTICLE XII - CONDEMNATION
12.01 Taking. If the entire Premises or so much of the Premises as
to render the balance unusable by Tenant shall be taken by condemnation, sale in
lieu of condemnation or in any other manner for any public or quasi-public
purpose (collectively "Condemnation"), this Lease shall terminate on the date
that title or possession to the Premises is taken by the condemning authority,
whichever is earlier.
12.02 Award. In the event of any Condemnation, the entire award for
such taking shall belong to Landlord. Tenant shall have no claim against
Landlord or the award for the value of any unexpired term of this Lease or
otherwise. Tenant shall be entitled to independently pursue a separate award in
a separate proceeding for Tenant's relocation costs directly associated with the
taking, provided such separate award does not diminish Landlord's award.
12.03 Temporary Taking. No temporary taking of the Premises shall
terminate this Lease or entitle Tenant to any abatement of the Rent payable to
Landlord under this Lease; provided, further, that any award for such temporary
taking shall belong to Tenant to the extent that the award applies to any time
period during the Lease Term and to Landlord to the extent that the award
applies to any time period outside the Lease Term.
ARTICLE XIII - RELOCATION
13.01 Paragraph intentionally omitted] Relocation. Landlord shall
have the right, at its option upon not less than thirty (30) days prior written
notice to Tenant, to relocate Tenant and to substitute for the Premises
described above other space in the Building of approximately the same dimensions
and size as the Premises described in Section 1.02 above. If Tenant is already
in occupancy o the Premises, then Landlord shall also reimburse Tenant for
Tenant's reasonable moving and telephone relocation expenses and for reasonable
quantities of new stationery upon submission to Landlord of receipts for such
expenditures incurred by Tenant.
ARTICLE XIV - ASSIGNMENT AND SUBLETTING
14.01 Restriction. Without the prior written consent of Landlord,
Tenant shall not, either voluntarily or by operation of law, assign, encumber,
or otherwise transfer this Lease or any interest herein, or sublet the Premises
or any part thereof, or permit the Premises to be occupied by anyone other than
Tenant or Tenant's employees. An assignment, subletting or other action in
violation of the foregoing shall be void and, at Landlord's option, shall
constitute a material breach of this Lease. For purposes of this Section 14.01,
an assignment shall include any transfer of any interest in this Lease or the
Premises by Tenant pursuant to a merger, division, consolidation or liquidation,
or pursuant to a change in ownership of Tenant involving a transfer of voting
control in Tenant (whether by transfer of partnership interests, corporate stock
or otherwise). Notwithstanding anything contained in this Article XIV to the
contrary, Tenant expressly covenants and agrees not to enter into any lease,
sublease, license, concession or other agreement for use, occupancy or
utilization of the Premises which provides for rental or other payment for such
use, occupancy or utilization based in whole or in part on the net income or
profits derived by any person from the property leased, used, occupied or
utilized (other than an amount based on a fixed percentage or percentages of
receipts or sales), and that any such purported lease, sublease, license,
concession or other agreement for use, occupancy or utilization of the Premises
which provides for rental or other payment for such use, occupancy or
utilization based in whole or in part on the net income or profits derived by
any person from the property leased, used, occupied or utilized (other than an
amount based on a fixed percentage or percentages of receipts or sales), and
that any
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<PAGE>
such purported lease, sublease, license, concession or other agreement shall be
absolutely void and ineffective as a conveyance of any right or interest in the
possession, use, occupancy or utilization of any part of the Premises.
Notwithstanding the foregoing, Tenant shall have the right to assign or sublease
all or part of the Premises to its parent, any of its parent's wholly-owned
subsidiaries or purchaser without the consent of Landlord, provided, however,
that proper notice per paragraph 14.02 be provided to Landlord but such
assignment or subletting shall never release Tenant from any and all
obligations, covenants, and conditions set forth in this Lease.
14.02 Notice to Landlord. If Tenant desires to assign this Lease or
any interest herein, or to sublet all or any part of the Premises, then at least
twenty (20) business days prior to the effective date of the proposed assignment
or subletting, Tenant shall submit to Landlord in connection with Tenant's
request for Landlord's consent:
(A) A statement containing (i) the name and address of the
proposed assignee or subtenant; (ii) such financial information with
respect to the proposed assignee or subtenant as Landlord shall
reasonably require; (iii) the type of use proposed for the Premises;
and (iv) all of the principal terms of the proposed assignment or
subletting; and
(B) Four (4) originals of the assignment or sublease on a form
approved by Landlord and four (4) originals of the Landlord's Consent
to Sublease or Assignment and Assumption of Lease and Consent.
14.03 Landlord's Recapture Rights. At any time within twenty (20)
business days after Landlord's receipt of all (but not less than all) of the
information and documents described in Section 14.02 above, Landlord may, at its
option by written notice to Tenant, elect to: (a) sublease the Premises or the
portion thereof proposed to be sublet by Tenant upon the same terms as those
offered to the proposed subtenant; (b) take an assignment of the Lease upon the
same terms as those offered to the proposed assignee; or (c) terminate the Lease
in its entirety or as to the portion of the Premises proposed to be assigned or
sublet, with a proportionate adjustment in the Rent payable hereunder if the
Lease is terminated as to less than all of the Premises. If Landlord does not
exercise any of the options described in the preceding sentence, then, during
the above-described twenty (20) business day period, Landlord shall either
consent or deny its consent to the proposed assignment or subletting.
14.04 Landlord's Consent; Standards. Landlord's consent shall not be
unreasonably withheld; but, in addition to any other grounds for denial,
Landlord's consent shall be deemed reasonably withheld if, in Landlord's good
faith judgment: (i) the proposed assignee or subtenant does not have the
financial strength to perform its obligations under this Lease or any proposed
sublease; (ii) the business and operations of the proposed assignee or subtenant
are not of comparable quality to the business and operations being conducted by
other tenants in the Building; (iii) the proposed assignee or subtenant intends
to use any part of the Premises for a purpose not permitted under this Lease;
(iv) either the proposed assignee or subtenant, or any person which directly or
indirectly controls, is controlled by, or is under common control with the
proposed assignee or subtenant occupies space in the Building, or is negotiating
with Landlord to lease space in the Building; (v) the proposed assignee or
subtenant is disreputable; or (vi) the use of the Premises or the Building by
the proposed assignee or subtenant would, in Landlord's reasonable judgment,
significantly increase the pedestrian traffic in and out of the Building or
vehicular traffic in or to the Building or would require any alterations to the
Building to comply with applicable laws unless paid for by Tenant.
14.05 Additional Rent. If Landlord consents to any such assignment
or subletting, fifty percent (50%) of all sums or other economic consideration
received by Tenant in connection with such assignment or subletting, whether
denominated as rental or otherwise, which exceeds, in the aggregate, the total
sum which Tenant is obligated to pay Landlord under this Lease (prorated to
reflect obligations allocable to less than all of the Premises under a sublease)
shall be paid to Landlord as additional rent under the Lease without affecting
or reducing any other obligation of Tenant hereunder.
14.06 Landlord's Costs. If Tenant shall assign this Lease or shall
sublet all or any part of the Premises or shall request the consent of Landlord
to any assignment, subletting or other act, Tenant shall pay to Landlord as
additional rent Landlord's costs related thereto, including Landlord's
reasonable attorneys' fees and a minimum maximum fee to Landlord of Five Hundred
Dollars ($500.00).
14.07 Continuing Liability of Tenant. Notwithstanding any assignment
or sublease, Tenant shall remain as fully and primarily liable for the payment
of Rent and for the performance of all other obligations of Tenant contained in
this Lease to the same extent as if the assignment or sublease had not occurred;
provided, however, that any act or omission of any assignee or subtenant, other
than Landlord, that violates the terms of this Lease shall be deemed a violation
of this Lease by Tenant.
14.08 Non-Waiver. The consent by Landlord to any assignment or
subletting shall not relieve Tenant, or any person claiming through or by
Tenant, of the obligation to obtain the consent of Landlord, pursuant to this
Article XIV, to any further assignment or subletting. In the event of an
assignment or subletting, Landlord may collect rent from the assignee or the
subtenant without waiving any rights hereunder and collection of the rent from a
person other than Tenant shall not be deemed a waiver of any of Landlord's
rights under this Article XIV, an acceptance of assignee or subtenant as Tenant,
or a release of Tenant from the performance of Tenant's obligations under this
Lease.
ARTICLE XV - DEFAULT AND REMEDIES
15.01 Events of Default By Tenant. The occurrence of any of the
following shall constitute a material default and breach of this Lease by
Tenant:
(A) The failure by Tenant to pay Base Rent or make any other
payment required to be made by Tenant hereunder as and when due and the
continuation of such failure for five (5) days after written notice
thereof by Landlord to Tenant.
(B) The abandonment of the Premises by Tenant or the vacation
of the Premises by Tenant for fourteen (14) consecutive days (with or
without the payment of Rent).
(C) The making by Tenant of any assignment of this Lease or
any sublease of all or part of the Premises, except as expressly
permitted under Article XIV of this Lease.
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(D) The failure by Tenant to observe or perform any other
provision of this Lease to be observed or performed by Tenant, other
than those described in Sections 15.01(A), 15.01(B) or 15.01(C) above,
if such failure continues for thirty (30) days after written notice
thereof by Landlord to Tenant provided, however, that if the nature of
the default is such that it cannot be cured within the thirty (30) day
period, no default shall be deemed to exist if Tenant commences the
curing of the default promptly within such thirty (30) day period and
thereafter diligently prosecutes the same to completion and achieves
the same within sixty (60) days after the occurrence of such default.
Landlord may provide additional time as necessary if in Landlord's
reasonable opinion Tenant is in fact diligently working to cure such
default. The thirty (30) day notice described herein shall be in lieu
of, and not in addition to, any notice required under law now or
hereafter in effect requiring that notice of default be given prior to
the commencement of an unlawful detainer or other legal proceeding.
(E) The making by Tenant of any general assignment for the
benefit of creditors, the filing by or against Tenant of a petition
under any federal or state bankruptcy or insolvency laws (unless, in
the case of a petition filed against Tenant, the same is dismissed
within thirty (30) days after filing); the appointment of a trustee or
receiver to take possession of substantially all of Tenant's assets at
the Premises or Tenant's interest in this Lease or the Premises, when
possession is not restored to Tenant within thirty (30) days; or the
attachment, execution or other seizure of substantially all of Tenant's
assets located at the Premises or Tenant's interest in this Lease or
the Premises, if such seizure is not discharged within thirty (30)
days.
15.02 Landlord's Right To Terminate Upon Tenant Default. In the
event of any default by Tenant as provided in Section 15.01 above, Landlord
shall have the right without notice or demand to Tenant (Tenant hereby
irrevocably waiving all notices and demands, statutory or otherwise, including
without limitation, any notice otherwise required in connection with any
forcible entry and detainer action), to terminate this Lease or Tenant's right
to possession of the Premises without terminating this Lease, in which event
Landlord shall be entitled to receive from Tenant:
(A) The worth at the time of award of any unpaid Rent which
had been earned at the time of such termination; plus
(B) The worth at the time of award of the amount by which the
unpaid Rent which would have been earned after termination until the
time of award exceeds the amount of such rental loss Tenant proves
could have been reasonably avoided; plus
(C) The worth at the time of award of the amount by which the
unpaid Rent for the balance of the term after the time of award exceeds
the amount of such rental loss that Tenant proves could be reasonably
avoided; plus
(D) Any other amount necessary to compensate Landlord for all
the detriment proximately caused by Tenant's failure to perform its
obligations under this Lease or which in the ordinary course of things
would be likely to result therefrom; and
(E) At Landlord's election, such other amounts in addition to
or in lieu of the foregoing as may be permitted from time to time by
applicable law.
As used in subparagraphs (A) and (B) above, "worth at the time of
award" shall be computed by discounting such amounts at the then highest lawful
rate of interest, but in no event to exceed one percent (1%) per annum plus the
rate established by the Federal Reserve Bank of Chicago on advances made to
member banks under Sections 13 and 13a of the Federal Reserve Act ("discount
rate") prevailing on the date of execution of this Lease by Landlord. As used in
paragraph (C) above, "worth at the time of award" shall be computed by
discounting such amount at the discount rate of the Federal Reserve Bank of
Chicago at the time of award plus one percent (1%).
15.03 Landlord's Right To Continue Lease Upon Tenant Default. In the
event of a default of this Lease and abandonment of the Premises by Tenant, if
Landlord does not elect to terminate this Lease as provided in Section 15.02
above, Landlord may from time to time, without terminating this Lease, enforce
all of its rights and remedies under this Lease. Without limiting the foregoing,
Landlord may continue this Lease in effect after Tenant's breach and abandonment
and recover Rent as it becomes due. Landlord may, but shall have no obligation
to re-let all or any part of the Premises. In the event Landlord at its sole
discretion elects to re-let the Premises to the fullest extent permitted by law,
the proceeds of any reletting shall be applied first to pay to Landlord all
costs and expenses of such reletting (including without limitation, costs and
expenses of retaking or repossessing the Premises, removing persons and property
therefrom, securing new tenants, including expenses for redecoration,
alterations and other costs in connection with preparing the Premises for the
new tenant, and if Landlord shall maintain and operate the Premises, the costs
thereof) and receivers' fees incurred in connection with the appointment of and
performance by a receiver to protect the Premises and Landlord's interest under
this Lease and any necessary or reasonable alterations; second, to the payment
of any indebtedness of Tenant to Landlord other than Rent due and unpaid
hereunder; third, to the payment of Rent due and unpaid hereunder; and the
residue, if any, shall be held by Landlord and applied in payment of other or
future obligations of Tenant to Landlord as the same may become due and payable,
and Tenant shall not be entitled to receive any portion of such revenue.
15.04 Right of Landlord to Perform. All covenants and agreements to
be performed by Tenant under this Lease shall be performed by Tenant at Tenant's
sole cost and expense. If Tenant shall fail to pay any sum of money, other than
Rent, required to be paid by it hereunder or shall fail to perform any other act
on its part to be performed hereunder, Landlord may, but shall not be obligated
to, make any payment or perform any such other act on Tenant's part to be made
or performed, without waiving or releasing Tenant of its obligations under this
Lease. Any sums so paid by Landlord and all necessary incidental costs, together
with interest thereon at the lesser of the maximum rate permitted by law if any
or twelve percent (12%) per annum from the date of such payment shall be payable
to Landlord as additional rent on demand and Landlord shall have the same rights
and remedies in the event of nonpayment as in the case of default by Tenant in
the payment of Rent.
15.05 Default Under Other Leases. If the term of any lease, other
than this Lease, heretofore or hereafter made by Tenant for any space in the
Building shall be terminated or terminable after the making of this Lease
because of any default by Tenant under such other lease, such fact shall empower
Landlord at Landlord's sole option, to terminate this Lease by notice to Tenant
or to exercise any of the rights or remedies set forth in Section 15.02.
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15.06 Non-Waiver. Nothing in this Article shall be deemed to affect
Landlord's rights to indemnification for liability or liabilities arising prior
to termination of this Lease for personal injury or property damages under the
indemnification clause or clauses contained in this Lease. No acceptance by
Landlord of a lesser sum than the Rent then due shall be deemed to be other than
on account of the earliest installment of such Rent due, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment as rent be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such instatement or pursue any other remedy in the Lease provided.
The delivery of keys to any employee of Landlord or to Landlord's agent or any
employee thereof shall not operate as a termination of this Lease or a surrender
of the Premises.
15.07 Cumulative Remedies. The specific remedies to which Landlord
may resort under the terms of the Lease are cumulative and are not intended to
be exclusive of any other remedies or means of redress to which it may be
lawfully entitled in case of any breach or threatened breach by Tenant of any
provisions of the Lease. In addition to the other remedies provided in the
Lease, including the right to terminate Tenant's right of possession of the
Premises and reenter and repossess the Premises and remove all persons and
property from the Premises without terminating this Lease as provided in Section
15.02, Landlord shall be entitled to a restraint by injunction of the violation
or attempted or threatened violation of any of the covenants, conditions or
provisions of the Lease or to a decree compelling specific performance of any
such covenants, conditions or provisions.
15.08 Default by Landlord. Landlord's failure to perform or observe
any of its obligations under this Lease shall constitute a default by Landlord
under this Lease only if such failure shall continue for a period of thirty (30)
days (or the additional time, if any, that is reasonably necessary to promptly
and diligently to cure the failure) after Landlord receives written notice from
Tenant specifying the default. The notice shall give in reasonable detail the
nature and extent of the failure and shall identify the Lease provision(s)
containing the obligation(s). If Landlord shall default in the performance of
any of its obligations under this Lease (after notice and opportunity to cure as
provided herein), Tenant may pursue any remedies available to it under the law
and this Lease.
<PAGE>
ARTICLE XVI - ATTORNEYS FEES: COSTS OF SUIT
16.01 Attorneys' Fees. If either Landlord or Tenant shall commence
any action or other proceeding against the other arising out of, or relating to,
this Lease or the Premises, the prevailing party shall be entitled to recover
from the losing party, in addition to any other relief, its actual attorneys
fees irrespective of whether or not the action or other proceeding is prosecuted
to judgment and irrespective of any court schedule of reasonable attorneys'
fees. In addition, Tenant shall reimburse Landlord, upon demand, for all
reasonable attorneys' fees incurred in collecting Rent or otherwise seeking
enforcement against Tenant, its sublessees and assigns, of Tenant's obligations
under this Lease.
16.02 Indemnification. Should Landlord be made a party to any
litigation instituted by Tenant against a party other than Landlord, or by a
third party against Tenant, Tenant shall indemnify, hold harmless and defend
Landlord from any and all loss, cost, liability, damage or expense incurred by
Landlord, including attorneys' fees, in connection with the litigation. Should
Tenant be made a party to any litigation instituted by Landlord against a party
other than Tenant, or by a third party against Landlord, Landlord shall
indemnify, hold harmless and defend Tenant from any and all loss, cost,
liability, damage or expense incurred by Tenant, including attorney's fees, in
connection with the litigation.
ARTICLE XVII - SUBORDINATION AND ATTORNMENT
17.01 Subordination. This Lease, and the rights of Tenant hereunder,
are and shall be subordinate to the interests of (i) all present and future
ground leases and master leases of all or any part of the Building; (ii) present
and future mortgages and deeds of trust encumbering all or any part of the
Building or the underlying real estate; (iii) all past and future advances made
under any such mortgages or deeds of trust; and (iv) all renewals,
modifications, replacements and extensions of any such ground leases, master
leases, mortgages and deeds of trust; provided, however, that any lessor under
any such ground lease or master lease or any mortgagee or beneficiary under any
such mortgage or deed of trust shall have the right to elect, by written notice
given to Tenant, to have this Lease made superior in whole or in part to any
such ground lease, master lease, mortgage or deed of trust. Upon demand, Tenant
shall execute, acknowledge and deliver any instruments reasonably requested by
Landlord or any such lessor, mortgagee or beneficiary to effect the purposes of
this Section 17.01. Such instruments may contain, among other things, provisions
to the effect that such lessor, mortgagee or beneficiary (hereafter, for the
purposes of this Section 17.01, a "Successor Landlord") shall (i) not be liable
for any act or omission of Landlord or its predecessors, if any, prior to the
date of such Successor Landlord's succession to Landlord's interest under this
Lease; (ii) not be subject to any offsets or defenses which Tenant might have
been able to assert against Landlord or its predecessors, if any, prior to the
date of such Successor Landlord's succession to Landlord's interest under this
Lease; (iii) not be liable for the return of any security deposit under the
Lease unless the same shall have actually been deposited with such Successor
Landlord; and (iv) be entitled to receive notice of any Landlord default under
this Lease plus a reasonable opportunity to cure such default prior to Tenant
having any right or ability to terminate this Lease as a result of such Landlord
default.
Within thirty (30) days after the execution of this Lease,
Landlord will obtain a Subordination Non-Distrubance Agreement from the lender
in favor of the Lessee in a form that is acceptable to the current lender.
17.02 Attornment. If requested to do so, Tenant shall attorn to and
recognize as Tenant's landlord under this Lease any superior lessor, superior
mortgagee or other purchaser or person taking title to the Building by reason of
the termination of any superior lease or the foreclosure of any superior
mortgage or deed of trust, and Tenant shall, upon demand, execute any documents
reasonably requested by any such person to evidence the attornment described in
this Section 17.02.
17.03 Mortgage and Ground Lessor Protection. Tenant agrees to give
any holder of any mortgage and any ground lessor, by registered or certified
mail, a copy of any notice of default served upon the Landlord by Tenant,
provided that prior to such notice Tenant has been notified in writing (by way
of service on Tenant of a copy of Assignment of Rents and Leases, or otherwise)
of the address of such mortgage holder or ground lessor (hereafter the "Notified
Party"). Tenant further agrees that if Landlord shall have failed to cure such
default within twenty (20) days after such notice to Landlord (or if such
default cannot be cured or corrected within that time, then such additional time
as may be necessary if Landlord has commenced within such twenty
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(20) days and is diligently pursuing the remedies or steps necessary to cure or
correct such default), then the Notified Party shall have an additional thirty
(30) days within which to cure or correct such default (or if such default
cannot be cured or corrected within that time, then such additional time as may
be necessary if the Notified Party has commenced within such thirty (30) days
and is diligently pursuing the remedies or steps necessary to cure or correct
such default). Until the time allowed, as aforesaid, for the Notified Party to
cure such default has expired without cure, Tenant shall have no right to, and
shall not, terminate this Lease on account of Landlord's default.
ARTICLE XVIII - QUIET ENJOYMENT
18.01 Provided that Tenant performs all of its obligations
hereunder, Tenant shall have and peaceably enjoy the Premises during the Lease
Term, subject to all of the terms and conditions contained in this Lease.
ARTICLE XIX - PARKING
19.01 Tenant, its employees and invitees, are hereby granted the
non-exclusive privilege to use parking spaces at the Building. Tenant shall
abide by all rules and regulations regarding the use of the parking area as may
now exist or as may hereinafter be promulgated by Landlord. Landlord reserves
the right to modify, restripe and otherwise change the location of drives,
parking spaces and parking area at the Building. Landlord may, but shall have no
obligation to, designate certain parking spaces for trucks, handicapped persons
or designated tenants as Landlord, in its sole discretion, may deem necessary
for the professional and efficient operation of the parking area and the
Building. Landlord shall have the right to reasonably restrict the number and
location of truck/tractor trailers for the overall benefit of all tenants, it
being agreed by Tenant that it is not the intent of this Lease to provide
unrestricted parking for truck/tractor trailers. Tenant agrees not to overburden
the parking facilities and agrees to cooperate with Landlord and other tenants
in the use of parking facilities. Tenant will reimburse Landlord upon demand for
any damage caused to the parking surfaces or facilities caused by Tenant's or
any of its employees', agents' or invitees' trucks/tractor trailers or any other
vehicles. Landlord reserves the right in its absolute discretion to determine
whether parking facilities are becoming crowded and, in such event, to allocate
parking spaces among Tenant and other tenants. At no time shall the parking of
any vehicle be permitted in the fire lanes or handicapped parking areas
servicing the Building.
ARTICLE XX - RULES AND REGULATIONS
20.01 The Rules and Regulations attached hereto as Exhibit F are
hereby incorporated by reference herein and made a part hereof. Tenant shall
abide by, and faithfully observe and comply with the Rules and Regulations and
any reasonable and non-discriminatory amendments, modifications and/or additions
thereto as may hereafter be adopted and published by written notice to tenants
by Landlord for the safety, care, security, good order and/or cleanliness of the
Premises and/or the Building. Landlord shall not be liable to Tenant for any
violation of such rules and regulations by any other tenant or occupant of the
Building.
ARTICLE XXI - ESTOPPEL CERTIFICATES
21.01 Tenant agrees at any time and from time to time upon not less
than ten (10) days prior written notice from Landlord to execute, acknowledge
and deliver to Landlord a statement in writing addressed and certifying to
Landlord, or to the holder or assignee of any existing or prospective mortgage
encumbering the Building or any part thereof (hereafter a "Mortgagee"), or to
the lessor, or existing or prospective assignee of the lessor's position, under
any existing or prospective ground lease of the land underlying the Building
(hereafter a "Ground Lessor"), or to any prospective purchaser of the land,
improvements or both comprising the Building, that this Lease is unmodified and
in full force and effect (or if there have been modifications, that the same is
in full force and effect as modified and stating the modifications); that Tenant
has accepted possession of the Premises, which are acceptable in all respects,
and that any improvements required by the terms of this Lease to be made by
Landlord have been completed to the satisfaction of Tenant; that Tenant is in
full occupancy of the Premises; that no rent has been paid more than thirty (30)
days in advance; that the first month's Base Rent has been paid; that Tenant is
entitled to no free Rent or other concessions except as stated in this Lease;
that Tenant has not been notified of any previous assignment of Landlord's or
any predecessor landlord's interest under this Lease; the dates to which Base
Rent, additional rental and other charges have been paid; that Tenant, as of the
date of such certificate, has no charge, lien or claim of setoff under this
Lease or otherwise against Base Rent, additional rental or other charges due or
to become due under this Lease; and that Landlord is not in default in
performance of any covenant, agreement or condition contained in this Lease or
any other matter relating to this Lease or the Premises or, if so, specifying
each such default. In addition, in the event that such certificate is being
given to any Mortgagee or Ground Lessor, such statement may contain any other
provisions customarily required by such Mortgagee or Ground Lessor including,
without limitation, an agreement on the part of Tenant to furnish to such
Mortgagee or Ground Lessor, as applicable, written notice of any Landlord
default and a reasonable opportunity for such Mortgagee or Ground Lessor to cure
such default prior to Tenant being able to terminate this Lease. Any such
statement delivered pursuant to this Section may be relied upon by Landlord or
any Mortgagee, Ground Lessor or prospective purchaser to whom it is addressed
and such statement, if required by its addressee, may so specifically state. If
Tenant does not execute, acknowledge and deliver to Landlord the statement as
and when required herein, it shall be considered a material breach of the Lease.
[Sentence intentionally omitted.]
ARTICLE XXII -ENTRY BY LANDLORD
22.01 Landlord may enter the Premises at all reasonable times to:
inspect the same; exhibit the same to prospective purchasers, lenders or
tenants; determine whether Tenant is complying with all of its obligations under
this Lease; supply janitorial and other services to be provided by Landlord to
Tenant under this Lease; post notices of non-responsibility; and make repairs or
improvements in or to the Building or the Premises; provided, however that all
such work shall be done as promptly as reasonably possible and so as to cause as
little interference to Tenant as reasonably possible. Tenant hereby waives any
claim for damages for any injury or inconvenience to, or interference with,
Tenant's business, any loss of occupancy or quiet enjoyment of the Premises or
any other loss occasioned by such entry . As provided for in clause (xiii) of
Section 27.19 of this Lease, Landlord shall at all times have the right, but not
the obligation, to obtain from Tenant and retain a key with which to unlock all
of the doors in, on or about
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the Premises (excluding Tenant's vaults, safes and similar areas designated by
Tenant in writing in advance), and Landlord shall have the right to use any and
all means by which Landlord may deem proper to open such doors to obtain entry
to the Premises, and any entry to the Premises obtained by Landlord by any such
means, or otherwise, shall not under any circumstances be deemed or construed to
be a forcible or unlawful entry into or a detainer of the Premises or an
eviction, actual or constructive, of Tenant from any part of the Premises. Such
entry by Landlord shall not act as a termination of this Lease. If Landlord
shall be required to obtain entry by means other than a key provided by Tenant,
the cost of such entry shall be payable by Tenant to Landlord as additional
rent.
ARTICLE XXIII
23.01 ARTICLE XXIII WAS INTENTIONALLY OMITTED
23.02 Transfer of Landlord's Interest. Landlord and each successor
to Landlord shall be fully released from the performance of Landlord's
obligations for any matters arising subsequent to their transfer of Landlord's
interest in the Building. Landlord shall not be liable for any obligation
hereunder arising after a transfer of its interest in the Building.
ARTICLE XXIV - HOLDOVER TENANCY
24.01 If Tenant holds possession of the Premises after the
expiration or termination of the Lease Term, by lapse of time or otherwise,
Tenant shall become a tenant at sufferance upon all of the terms contained
herein, except as to Lease Term and Rent. During such holdover period, Tenant
shall pay to Landlord a monthly rental equivalent to one hundred fifty percent
(150%) of the Rent payable by Tenant to Landlord with respect to the last month
of the Lease Term. The monthly rent payable for such holdover period shall in no
event be construed as a penalty or as liquidated damages for such retention of
possession. Without limiting the foregoing, Tenant hereby agrees to indemnify,
defend and hold harmless Landlord, its beneficiary, and their respective agents,
contractors and employees, from and against any and all claims, liabilities,
actions, losses, damages (including without limitation, direct, indirect,
incidental and consequential) and expenses (including, without limitation, court
costs and reasonable attorneys' fees) asserted against or sustained by any such
party and arising from or by reason of such retention of possession, which
obligations shall survive the expiration or termination of the Lease Term.
ARTICLE XXV - NOTICES
25.01 All notices which Landlord or Tenant may be required, or may
desire, to serve on the other may be served, as an alternative to personal
service, by mailing the same by registered or certified mail, postage prepaid,
or may be sent by overnight courier, addressed to the Landlord at the address
for Landlord set forth in Section 1.11 above and to Tenant at the address for
Tenant set forth in Section 1.12 above, or, from and after the Commencement
Date, to the Tenant at the Premises whether or not Tenant has departed from,
abandoned or vacated the Premises, or addressed to such other address or
addresses as either Landlord or Tenant may from time to time designate to the
other in writing. Any notice shall be deemed to have been given by overnight
courier shall be deemed given on the first business day following the date such
notice is delivered by such courier provided such courier verifies delivery
thereof.
ARTICLE XXVI - BROKERS
26.01 Tenant and Landlord each warrants to the other that it has had
no dealings with any broker or agent in connection with this Lease other than
Sealy & Company, Inc. and covenants to pay, hold harmless and indemnify each
other from and against any and all costs, expenses or liability for any
compensation, commissions, and charges claimed by any other broker or agent
(other than the broker named above) with respect to this Lease or the
negotiation thereof with whom such indemnifying party had dealings.
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ARTICLE XXVII - MISCELLANEOUS
27.01 Entire Agreement. This Lease contains all of the agreements
and understandings relating to the leasing of the Premises and the obligations
of Landlord and Tenant in Connection with such leasing. Landlord has not made,
and Tenant is not relying upon, any warranties, or representations, promises or
statements made by Landlord or any agent of Landlord, except as expressly set
forth herein. This Lease supersedes any and all prior agreements and
understandings between Landlord and Tenant and alone expresses the agreement of
the parties.
27.02 Amendments. This Lease shall not be amended, changed or
modified in any way unless in writing executed by Landlord and Tenant. Landlord
shall not have waived or released any of its rights hereunder unless in writing
and executed by the Landlord.
27.03 Successors. Except as expressly provided herein, this Lease
and the obligations of Landlord and Tenant contained herein shall bind and
benefit the successors and assigns of the parties hereto.
27.04 Force Majeure. Landlord shall incur no liability to Tenant
with respect to, and shall not be responsible for any failure to perform, any of
Landlord's obligations hereunder if such failure is caused by any reason beyond
the control of Landlord including, but not limited to strike, labor trouble,
governmental rule, regulations, ordinance, statute or interpretation, fire,
earthquake, civil commotion, or failure or disruption of utility services. The
amount of time for Landlord to perform any of Landlord's obligations shall be
extended by the amount of time Landlord is delayed in performing such obligation
by reason of any force majeure occurrence whether similar to or different from
the foregoing types of occurrences.
27.05 Survival of Obligations. Any obligations of Landlord or Tenant
accruing prior to the expiration of the Lease shall survive the termination of
the Lease, and Landlord or Tenant shall promptly perform all such obligations
whether or not this Lease has expired.
27.06 Light and Air. No diminution or shutting off of any light, air
or view by any structure now or hereafter erected shall in any manner affect
this Lease or the obligations of Tenant hereunder, or increase any of the
obligations of Landlord hereunder.
27.07 Governing Law. This Lease shall be governed by, and construed
in accordance with, the laws of the State of Louisiana.
27.08 Severability. In the event any provision of this Lease is
found to be unenforceable, the remainder of this Lease shall not be affected,
and any provision found to be invalid shall be enforceable to the extent
permitted by law. The parties agree that in the event two different
interpretations may be given to any provision hereunder, one of which will
render the provision unenforceable, and one of which will render the provision
enforceable, the interpretation rendering the provision enforceable shall be
adopted.
27.09 Captions. All captions, headings, titles, numerical references
and computer highlighting are for convenience only and shall have no effect on
the interpretation of this Lease.
27.10 Interpretation. Tenant acknowledges that it has read and
reviewed this Lease and that it has had the opportunity to confer with counsel
in the negotiation of this Lease. Accordingly, this Lease shall be construed
neither for nor against Landlord or Tenant, but shall be given a fair and
reasonable interpretation in accordance with the meaning of its terms and the
intent of the parties.
27.11 Independent Covenants. Each covenant, agreement, obligation or
other provision of this Lease to be performed by Tenant are separate and
independent covenants of Tenant, and not dependent on any other provision of the
Lease.
27.12 Number and Gender. All terms and words used in this Lease,
regardless of the number or gender in which they are used, shall be deemed to
include the appropriate number and gender, as the context may require.
27.13 Time is of the Essence. Time is of the essence of this Lease
and the performance of all obligations hereunder.
27.14 Joint and Several Liability. If Tenant comprises more than one
person or entity, or if this Lease is guaranteed by any party, all such persons
shall be jointly and severally liable for payment of rents and the performance
of Tenant's obligations hereunder.
27.15 Exhibits and Schedules. Exhibits A (Outline of Premises), B
(Work Letter Agreement), C (Suite Acceptance Letter), D (Tenant Operations
Inquiry), E (List of Additional Insureds), F (Rules and Regulations), G
(Guaranty) and H (Building Plans), and Schedule 1 to Exhibit D (List of
Permissible Hazardous Materials and Quantities) are incorporated into this Lease
by reference and made a part hereof.
27.16 Offer to Lease. The submission of this Lease to Tenant or its
broker or other agent, does not constitute an offer to Tenant to lease the
Premises. This Lease shall have no force and effect until (a) it is executed and
delivered by Tenant to Landlord and (b) it is fully reviewed and executed by
Landlord; provided, however, that, upon execution of this Lease by Tenant and
delivery to Landlord, such execution and delivery by Tenant shall, in
consideration of the time and expense incurred by Landlord in reviewing the
Lease and Tenant's credit, constitute an offer by Tenant to Lease the Premises
upon the terms and conditions set forth herein (which offer to Lease shall be
irrevocable for twenty (20) business days following the date of delivery).
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<PAGE>
27.17 Waiver; No Counterclaim; Choice of Laws. To the extent
permitted by applicable law, Tenant hereby waives the right to a jury trial in
any action or proceeding regarding this Lease and the tenancy created by this
Lease. [Sentence intentionally omitted.] In addition, Tenant hereby submits to
local jurisdiction in the State of Louisiana and agrees that any action by
Tenant against Landlord shall be instituted in the State of Louisiana and that
Landlord shall have personal jurisdiction over Tenant for any action brought by
Landlord against Tenant in the State of Louisiana. To the extent permitted by
applicable law, Tenant hereby waives any and all rights of redemption granted by
any present or future laws.
27.18 Electrical Service to the Premises. Anything set forth in
Section 7.01 or elsewhere in this Lease to the contrary notwithstanding,
electricity to the Premises shall not be furnished by Landlord, but shall be
furnished by the approved electric utility company serving the Building.
Landlord shall permit Tenant to receive such service directly from such utility
company at Tenant's cost (except as otherwise provided herein) and shall permit
Landlord's wire and conduits, to the extent available, suitable and safely
capable, to be used for such purposes.
27.19 Rights Reserved by Landlord. Provided Landlord uses its best
efforts to minimize interference with the business of the Tenant, Landlord
reserves the following rights exercisable without notice (except as otherwise
expressly provided to the contrary in this Lease) and without being deemed an
eviction or disturbance of Tenant's use or possession of the Premises or giving
rise to any claim for set-off or abatement of Rent: (i) to change the name or
street address of the Building; (ii) to install, affix and maintain all signs on
the exterior and/or interior of the Building; (iii) to designate and/or approve
prior to installation, all types of signs, window shades, blinds, drapes,
awnings or other similar items, and all internal lighting that may be visible
from the exterior of the Premises; (iv) to display the Premises and/or the
Building to mortgagees, prospective mortgagees, prospective purchasers and
ground lessors at reasonable hours upon reasonable advance notice to Tenant; (v)
to change the arrangement of entrances, doors, corridors, elevators and/or
stairs in the Building, provided no such change shall materially adversely
affect access to the Premises; (vi) to grant any party the exclusive right to
conduct any business or render any service in the Building, provided such
exclusive right shall not operate to prohibit Tenant from using the Premises for
the purposes permitted under this Lease; (vii) to prohibit the placement of
vending or dispensing machines of any kind in or about the Premises other than
for use by Tenant's employees; (viii) to prohibit the placement of video or
other electronic games in the Premises; (ix) to have access for Landlord and
other tenants of the Building to any mail chutes and boxes located in or on the
Premises according to the rules of the United States Post Office; (x) to close
the Building after normal business hours, except that Tenant and its employees
and invitees shall be entitled to admission at all times under such rules and
regulations as Landlord prescribes for security purposes; (xi) to install,
operate and maintain security systems which monitor, by close circuit television
or otherwise, all persons entering or leaving the Building; (xii) to install and
maintain pipes, ducts, conduits, wires and structural elements located in the
Premises which serve other parts or other tenants of the Building; and (xiii) to
retain at all times master keys or pass keys to the Premises.
27.20 Tenant Operations Inquiry. As a material inducement to
Landlord to enter into this Lease (i) Tenant has completed Exhibit D hereto, and
(ii) Tenant represents and warrants to Landlord that Exhibit D is true and
correct in all material respects and is not misleading.
27.21 Guaranty. Simultaneously with execution and delivery of this
Lease, the Guarantors shall execute and deliver to Landlord the Guaranty in the
form and content of Exhibit G hereto.
27.22 Consent. Whether Landlord's consent is required under the
terms of the Lease such consent shall not be unreasonably withheld.
ARTICLE XXVIII - FLOOR LOAD LIMITS
28.01 Floor Load Limits. Tenant shall not place a load upon any
floor of the Premises exceeding the floor load per square foot area which it was
designed to carry and which is allowed by law. Landlord reserves the right to
prescribe the weight and position of all safes, business machines and mechanical
equipment in the Building. Such installations shall be placed and maintained by
Tenant, at Tenant's expense, in settings sufficient, in Landlord's judgment, to
absorb and prevent vibration, noise and annoyance to occupants of the complex of
adjacent property.
ARTICLE XXIX - LANDLORD'S LIEN
29.01 [Paragraph intentionally omitted.]
ARTICLE XXX - UNIFORM COMMERCIAL CODE
30.01 [Paragraph intentionally omitted.]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this lease as of
the date first above written.
TENANT: LANDLORD:
MORGAN PRODUCTS, LTD.,
doing business in Louisiana as
MORGAN DISTRIBUTION BR/NO LA. PROPERTIES, LLC
By: _________________________ By: SPM Industrial, LLC
Its: _________________________ Its: Administrative Member
______________________________
Mark P. Sealy
Member
ATTEST:
______________________________
______________________________
WITNESSES: WITNESSES:
______________________________ ______________________________
______________________________ ______________________________
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<PAGE>
RIDER TO LEASE dated May 7, 1997 between BR/NO LA. Properties, LLC (hereinafter
referred to as "Landlord") and Morgan Products, Ltd., doing business in
Louisiana as Morgan Distribution (hereinafter referred to as "Tenant").
ARTICLE XXXII - RENEWAL OPTIONS
31.01 Landlord and Tenant agree that the lease shall include the following
renewal option:
(A) Renewal Option: Subject to credit approval by Landlord and
if Tenant is not in default of the Lease at the time
delivery of notice is required to exercise this option,
and if at any time thereafter through and including the
time the subject renewal term is to commence, Tenant has
not been in default with respect to any terms and
conditions contained herein, the Tenant, but not any
assignee or sublessee, shall have one (1) option to renew
this lease for one (1) additional term ("Renewal Term") of
five (5) years which shall commence on August 1, 2002 and
expire on July 31, 2007, on the same terms and conditions
as set forth herein, provided that Tenant gives Landlord
written notice no earlier than twelve (12) months and no
later than six (6) months prior to the expiration of the
then current term, except that the rental for the Renewal
Term shall be based on the then prevailing rental rate for
this property.
For purposes of the preceding sentence, "prevailing rental
rate" shall mean the total rental rate being quoted by
Landlord to third party tenants and accepted by such third
party tenants at the time of the relevant renewal for
similar space, including all fixed and/or indexed rental
adjustments and all rental adjustments for taxes and
expenses for the leased premises, within the Building and
taking into account lease buildouts and other concessions.
(B) In the event Tenant exercises the Renewal Option, Landlord
and Tenant shall execute and deliver an amendment to this
lease reflecting the renewal of the Term of this lease on
the terms herein provided, which amendment shall be
executed and delivered promptly after the determination of
the rental rate.
(C) Tenant agrees to accept the Premises in an "as-is"
physical condition on the commencement date of the Renewal
Term and Tenant shall not be entitled to any credit or
allowance from Landlord for the improvement thereof or
otherwise.
(D) The Renewal Option herein granted shall automatically
terminate upon the earlier to occur of (i) expiration or
termination of this lease, (ii) the termination of
Tenant's right to possession of the leased premises, (iii)
the failure of Tenant to timely or properly exercise the
renewal option.
31.02 Landlord and Tenant agree that the lease shall include the following
second renewal option:_PRIVATE __
(A) Second Renewal Option: Subject to credit approval by
Landlord and if Tenant is not in default of the Lease at
the time delivery of notice is required to exercise this
option, and if at any time thereafter through and
including the time the subject renewal term is to
commence, Tenant has not been in default with respect to
any terms and conditions contained herein, the Tenant, but
not any assignee or sublessee, shall have one (1)
additional option to renew this lease for a second (2nd)
additional term ("Second Renewal Term") of five (5) years
which shall commence on August 1, 2002 and expire on July
31, 2007, on the same terms and conditions as set forth
herein, provided that Tenant gives Landlord written notice
no earlier than twelve (12) months and no later than six
(6) months prior to the expiration of the then current
term, except that the rental for the Second Renewal Term
shall be based on the then prevailing rental rate for this
property.
For purposes of the preceding sentence, "prevailing rental
rate" shall mean the total rental rate being quoted by
Landlord to third party tenants and accepted by such third
party tenants at the time of the relevant renewal for
similar space, including all fixed and/or indexed rental
adjustments and all rental adjustments for taxes and
expenses for the leased premises, within the Building and
taking into account lease buildouts and other concessions.
(B) In the event Tenant exercises the Second Renewal Option,
Landlord and Tenant shall execute and deliver an amendment
to this lease reflecting the renewal of the Term of this
lease on the terms herein provided, which amendment shall
be executed and delivered promptly after the determination
of the rental rate.
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<PAGE>
(C) Tenant agrees to accept the Premises in an "as-is"
physical condition on the commencement date of the Second
Renewal Term and Tenant shall not be entitled to any
credit or allowance from Landlord for the improvement
thereof or otherwise.
(D) The Second Renewal Option herein granted shall
automatically terminate upon the earlier to occur of (i)
expiration or termination of this lease, (ii) the
termination of Tenant's right to possession of the leased
premises, (iii) the failure of Tenant to timely or
properly exercise the Second Renewal Option.
ARTICLE XXXII - RIGHT OF FIRST REFUSAL
32.01 (A) During the term of this Lease and after initial
occupancy by prospective tenants for Suites 4 and 5, and
subject to credit approval by Landlord, the Tenant shall
have the first right of refusal ("Refusal Right") to
lease, either singly or collectively, all of the adjacent
Suites #4 and #5, located at 11401 Industriplex Boulevard,
Baton Rouge, Louisiana consisting of approximately 7,706
and 12,076 square feet respectively cross hatched in
Section 32.02 below (hereinafter called "Expansion
Premises").
(B) In the event that the Landlord, or the Landlord's
successor in interest, has knowledge of the upcoming
availability of either Expansion Premises and shall
propose to lease either Expansion Premises, or otherwise
grant any occupancy rights therein, the Landlord shall
first give written notice ("Landlord's Notice") of such
availability or proposed transaction to the Tenant, which
notice shall include the rent, terms and conditions of
such proposed transaction. The Tenant shall have fifteen
(15) business days after such Landlord's Notice during
which the Tenant may elect, by written notice to the
Landlord, sent certified mail, return receipt requested or
delivered by an overnight courier service or in hand, to
exercise its Refusal Right in accordance herewith, and in
the event the Tenant shall fail to exercise its Refusal
Right, the space may be offered to another party or such
proposed transaction may be consummated by the Landlord
and the third party. In the event Tenant shall fail to
exercise its Refusal Right on either Expansion Premises at
any time after notice as aforesaid, Tenant's Refusal Right
with respect thereto shall thereafter cease and become
null and void regardless of whether such space again
becomes available during the Term of this Lease. In the
event that Tenant does elect to exercise its Refusal
Right, the Tenant shall promptly execute a lease for
either Expansion Premises on the same base rent, terms and
conditions as those specified in the Landlord's Notice but
in no event shall the base rent be less than the rent then
being paid by Tenant under this Lease.
(C) Termination: The Refusal Right shall automatically
terminate upon the earlier to occur of (1) the expiration
or termination of this Lease, (2) the termination of
Tenant's right to possession of the Premises, (3) the
assignment of this Lease by Tenant, (4) the sublease by
Tenant of the Premises, or any portion thereof, (5)
Tenant's decision to decline the Refusal Right when
offered, or (6) the failure of Tenant to timely or
properly exercise such Refusal Right.
32.02
[Diagram of the property indicating the Expansion
Premises, Suites 4 and 5, for which the Tenant has first
right of refusal as explained in Section 32.01 (A) above.]
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<PAGE>
EXHIBIT A
Floor Plan or Layout of Premises
(Approximately 22,596 Sq. Ft.)
(Office 2,502 Sq. Ft.)
Warehouse 20,094 Sq. Ft
Tenant: Morgan Products, Ltd., doing business in Louisiana as Morgan
Distribution
[Diagram of floor plan of premises]
<PAGE>
EXHIBIT B
WORK LETTER AGREEMENT
[Landlord Performs Work]
[Allowance]
This Work Letter Agreement ("Work Letter") is executed simultaneously
with that certain Lease (the "Lease") between Morgan Products, Ltd., doing
business in Louisiana as Morgan Distribution, as "Tenant", and BR/NO LA.
Properties, LLC as "Landlord", relating to demised premises ("Premises") at the
building commonly known as 11401 Industriplex Boulevard, Baton Rouge, Louisiana
70809 (the "Building"), which Premises are more fully identified in the Lease
and the building plans dated 8/30/96 by Tilt-Up Concrete Construction Co. drawn
by Tina Konczol attached as Exhibit H. Capitalized terms used herein, unless
otherwise defined in this Work Letter, shall have the respective meanings
ascribed to them in the Lease.
For and in consideration of the agreement to lease the Premises and the
mutual covenants contained herein and in the Lease, Landlord and Tenant hereby
agree as follows:
1. Tenant's Initial Plans; the Work. Tenant desires Landlord to perform
certain leasehold improvement work in the Premises in substantial accordance
with the preliminary cost estimate dated April 23, 1997 and the plan or plans
prepared by Tilt-Up Concrete Construction Company dated April 17, 1997 and last
revised April 23, 1997 (collectively, the "Initial Plan"), a copy or copies of
which is/are attached hereto as Schedule 1. Such work, as shown in the Initial
Plan and as more fully detailed in the Working Drawings (as defined and
described in Paragraph 2 below), shall be hereinafter referred to as the "Work".
Not later than May 15, 1997, Tenant shall furnish to Landlord such additional
plans drawings, specifications and finish details as Landlord may reasonably
request to enable Landlord's architects and engineers to prepare mechanical,
electrical and plumbing plans and to prepare the Working Drawings, including a
final telephone layout and special electrical connection requirements, if any.
All plans, drawings, specifications and other details describing the Work which
have been or are hereafter furnished by or on behalf of Tenant shall be subject
to Landlord's approval, which Landlord agrees shall not be unreasonably
withheld. Landlord shall not be deemed to have acted unreasonably if it
withholds its approval of any plans, specifications, drawings or other details
or of any Additional Work (as defined in Paragraph 7 below) because, in
Landlord's reasonable opinion, the work, as described in any such item, or the
Additional Work, as the case may be: (a) is likely to adversely affect Building
systems, the structure of the Building or the safety of the Building and/ or its
occupants; (b) might impair Landlord's ability to furnish services to Tenant or
other tenants in the Building; (c) would increase the cost of operating the
Building; (d) would violate any governmental laws, rules or ordinance (or
interpretations thereof); (e) contains or uses hazardous or toxic materials or
substances; (f) would adversely affect the appearance of the Building; (g) might
adversely affect another tenant's premises; (h) is prohibited by any ground
lease affecting the Building or any mortgage, trust deed or other instrument
encumbering the Building; or (i) is likely to be substantially delayed because
of unavailability or shortage of labor or materials necessary to perform such
work or the difficulties or unusual nature of such work. The foregoing reasons,
however, shall not be the only reasons for which Landlord may withhold its
approval, whether or not such other reasons are similar or dissimilar to the
foregoing. Neither the approval by Landlord of the Work or the Initial Plan or
any other plans, drawings specifications or other items associated with the Work
nor Landlord's performance, supervision or monitoring of the Work shall
constitute any warranty by Landlord to Tenant of the adequacy of the design for
Tenant's intended use of the Premises.
2. Working Drawings. If necessary for the performance of the Work and
not included as part of the Initial Plan attached hereto, Landlord shall prepare
or cause to be prepared final working drawings and specifications for the Work
(the "Working Drawings") based on and consistent with the Initial Plan and the
other plans, drawings, specifications, finish details and other information
furnished by Tenant to Landlord and approved by Landlord pursuant to Paragraph 1
above. So long as the Working Drawings are consistent with the Initial Plan,
Tenant shall approve the Working Drawings within three (3) days after receipt of
same from Landlord by initiating and returning to Landlord each sheet of the
Working Drawings or by executing Landlord's approval form then in. use,
whichever method of approval Landlord may designate.
3. Performance of the Work; Allowance. Except as hereinafter provided
to the contrary, Landlord shall cause the performance of the Work using (except
as may be stated or shown otherwise in the Working Drawings) building standard
materials, quantities and procedures then in use by Landlord ("Building
Standards"). Landlord shall pay for a portion of the "Cost of the Work" (as
defined below) in an amount not to exceed $97,152.00 (such amount being $4.30
per rentable square foot of the Premises which is to be improved, as described
in the Working Drawings) (the "Allowance"), and Tenant shall pay for the entire
Cost of the Work in excess of the Allowance. Tenant shall not be entitled to any
credit, abatement or payment from Landlord in the event that the amount of the
Allowance specified above exceeds the Cost of the Work. For purposes of this
Agreement, the term "Cost of the Work" shall mean and include any and all costs
and expenses of the Work, including, without limitation, the cost of the Working
Drawings and of all labor (including overtime) and materials constituting the
Work.
In addition, Landlord will install one edge of dock leveler, the
cost of which will not exceed $800.00.
4. Payment. Prior to commencing the Work, Landlord shall submit to
Tenant a written statement of the total Cost of the Work (which shall include
the amount of any overtime projected as necessary to substantially complete the
Work by the Commencement Date specified in the Lease) as then known by Landlord,
and such statement shall indicate the amount, if any, by which the total Cost of
the Work exceeds the Allowance (the "Excess Costs"). Tenant agrees, within three
(3) days after submission to it of such statement, to execute and deliver to
Landlord, in the form then in use by Landlord, an authorization to proceed with
the Work, and Tenant shall also then pay to Landlord an amount equal to the
Excess Costs. No Work shall be commenced until Tenant has fully complied with
the preceding provisions of this Paragraph 4. In the event, and each time, that
any change order by Tenant, unknown field condition, delay caused by acts beyond
Landlord's control or other event or circumstance causes the Cost of the Work to
be increased after the time that Landlord delivers to Tenant the aforesaid
initial statement of the Cost of the Work, Landlord shall deliver to Tenant a
revised statement of the total Cost of the Work, indicating the revised
calculation of the Excess Costs, if any. Within three (3) days after submission
to Tenant of any such revised statement, Tenant shall pay to Landlord an amount
equal to the Excess Costs, as shown in such revised statement, less the amounts
previously paid by Tenant to Landlord on account of the Excess Costs, and
Landlord shall not be required to proceed further with the Work until Tenant has
paid such amount. Delays in the performance of the Work resulting from the
failure of Tenant to comply with the provisions of this Paragraph 4 shall be
deemed to be delays caused by Tenant.
EXHIBIT B
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<PAGE>
5. Substantial Completion. Landlord shall cause the Work to be
"substantially completed" on or before the scheduled date of commencement of the
term of the Lease as specified in Section 1.05 of the Lease, subject to delays
caused by strikes, lockouts, boycotts or other labor problems, casualties,
discontinuance of any utility or other service required for performance of the
Work, unavailability or shortages of materials or other problems in obtaining
materials necessary for performance of the Work or any other matter beyond the
control of Landlord (or beyond the control of Landlord's contractors or
subcontractors performing the Work) and also subject to "Tenant Delays" (as
defined and described in Paragraph 6 of this Work Letter). The Work shall be
deemed to be "substantially completed" for all purposes under this Work Letter
and the Lease if and when Landlord's architect issues a written certificate to
Landlord and Tenant, certifying that the Work has been substantially completed
(i.e., completed except for "punchlist" items listed in such architect's
certificate) in substantial compliance with the Working Drawings, or when Tenant
first takes occupancy of the Premises, whichever first occurs. If the Work is
not deemed to be substantially completed on or before the scheduled date of the
commencement of the term of the Lease as specified in Section 1.05 of the Lease,
(a) Landlord agrees to use reasonable efforts to complete the Work as soon as
practicable thereafter, (b) the Lease shall remain in full force and effect, (c)
Landlord shall not be deemed to be in breach or default of the Lease or this
Work Letter as a result thereof and Landlord shall have no liability to Tenant
as a result of any delay in occupancy (whether for damages, abatement of Rent or
otherwise), and (d) except in the event of Tenant Delays, and notwithstanding
anything contained in the Lease to the contrary the Commencement Date of the
Lease Term as specified in Section 1.05 of the Lease shall be extended to the
date on which the Work is deemed to be substantially completed and the
Expiration Date of the Lease Term as specified in Section 1.06 of the Lease
shall be extended by an equal number of days. At the request of either Landlord
or Tenant in the event of such extensions in the commencement and expiration
dates of the term of the Lease, Tenant and Landlord shall execute and deliver an
amendment to the Lease reflecting such extensions. Landlord agrees to use
reasonable diligence to complete all punchlist work listed in the aforesaid
architect's certificate promptly after substantial completion.
6. Tenant Delays. There shall be no extension of the scheduled
commencement or expiration date of the term of the Lease (as otherwise
permissibly extended under Paragraph 5 above) if the Work has not been
substantially completed on said scheduled commencement date by reason of any
delay attributable to Tenant ("Tenant Delays"), including without limitation:
(i) the failure of Tenant to furnish all or any plans,
drawings, specifications, finish details or the other information
required under Paragraph 1 above on or before the date stated in
Paragraph l;
(ii) the failure of Tenant to grant approval of the Working
Drawings within the time required under Paragraph 2 above;
(iii) the failure of Tenant to comply with the requirements of
Paragraph 4 above;
(iv) Tenant's requirements for special work or materials,
finishes, or installations other than the Building Standards or
Tenant's requirements for special construction staging or phasing;
(v) the performance of any Additional Work (as defined in
Paragraph 7 below) requested by Tenant or the performance of any work
in the Premises by any person, firm or corporation employed by or on
behalf of Tenant, or any failure to complete or delay in completion of
such work; or
(vi) any other act or omission of Tenant.
7. Additional Work. Upon Tenant's request and submission by Tenant (at
Tenant's sole cost and expense) of the necessary information and/or plans and
specifications for work other than the Work described in the Working Drawings
("Additional Work") and the approval by Landlord of such Additional Work, which
approval Landlord agrees shall not be unreasonably withheld, Landlord shall
perform such Additional Work, at Tenant's sole cost and expense, subject,
however, to the following provisions of this Paragraph 7. Prior to. commencing
any Additional Work requested by Tenant, Landlord shall submit to Tenant a
written statement of the cost of such Additional Work, which cost shall include
a fee payable to Landlord in the amount of 15% of the total cost of such
Additional Work as compensation to Landlord for monitoring the Additional Work
and for administration, overhead and field supervision associated with the
Additional Work and an additional charge payable to Landlord in the amount of 5%
of the total Cost of the Work as compensation for Landlord's general conditions
(such fee and additional charge being hereinafter referred to collectively as
"Landlord's Additional Compensation"), and, concurrently with such statement of
cost, Landlord shall also submit to Tenant a proposed tenant extra order (the
"TEO") for the Additional Work in the standard form then in use by Landlord.
Tenant shall execute and deliver to Landlord such TEO and shall pay to Landlord
the entire cost of the Additional Work, including Landlord's Additional
Compensation (as reflected in Landlord's statement of such cost), within five
(5) days after Landlord's submission of such statement and TEO to Tenant. If
Tenant fails to execute or deliver such TEO or pay the entire cost of such
Additional Work within such 5-day period, then Landlord shall not be obligated
to do any of the Additional Work and may proceed to do only the Work, as
specified in the Working Drawings.
8. Tenant Access. Landlord, in Landlord's reasonable discretion and
upon request by Tenant, may grant to Tenant a license to have access to the
Premises prior to the date designated in the Lease for the commencement of the
term of the Lease to allow Tenant to do other work required by Tenant to make
the Premises ready for Tenant's use and occupancy (the "Tenant's Pre-Occupancy
Work"). It shall be a condition to the grant by Landlord and continued
effectiveness of such license that:
(a) Tenant shall give to Landlord a written request to have such access
to the Premises not less than five (5) days prior to the date on which such
access will commence, which written request shall contain or shall be
accompanied by each of the following items, all in form and substance reasonably
acceptable to Landlord: (i) a detailed description of and schedule for Tenant's
Pre-Occupancy Work; (ii) the names and addresses of all contractors,
subcontractors and material suppliers and all other representatives of Tenant
who or which will be entering the Premises on behalf of Tenant to perform
Tenant's Pre-Occupancy Work or will be supplying materials for such work, and
the approximate number of individuals, itemized by trade, who will be present in
EXHIBIT B
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<PAGE>
the Premises; (iii) copies of all contracts, subcontracts and material purchase
orders pertaining to Tenant's Pre-Occupancy Work (iv) copies of all plans and
specifications pertaining to Tenant's Pre-Occupancy Work; (v) copies of all
licenses and permits required in connection with the performance of Tenant's
Pre-Occupancy Work; (vi) certificates of insurance (in amounts satisfactory to
Landlord and with the parties identified in, or required by, the Lease named as
additional insureds) and instruments of indemnification against all claims,
costs, expenses, damages and liabilities which may arise in connection with
Tenant's Pre-occupancy Work; and (vii) assurances of the ability of Tenant to
pay for ail of Tenant's Pre-occupancy Work and/or a letter of credit or other
security deemed appropriate by Landlord securing Tenant's lien-free completion
of Tenant's Pre-occupancy Work.
(b) Such pre-term access by Tenant and its representatives shall be
subject to scheduling by Landlord.
(c) Tenant's employees, agents, contractors, workmen, mechanics,
suppliers and invitees shall work in harmony and not interfere with Landlord or
Landlord's agents in performing the Work and any Additional Work in the
Premises, Landlord's work in other premises and in common areas of the Building,
or the general operation of the Building. If at any time any such person
representing Tenant shall cause or threaten to cause such disharmony or
interference, including labor disharmony, and Tenant fails to immediately
institute and maintain such corrective actions as directed by Landlord, then
Landlord may withdraw such license upon twenty-four (24) hours' prior written
notice to Tenant.
(d) Any such entry into and occupancy of the Premises by Tenant or any
person or entity working for or on behalf of Tenant shall be deemed to be
subject to all of the terms, covenants, conditions and provisions of the Lease,
specifically including the provisions of Article IX thereof (regarding Tenant's
improvements and alterations to the Premises), and excluding only the covenant
to pay Rent. Landlord shall not be liable for any injury, loss or damage which
may occur to any of Tenant's Pre-occupancy Work made in or about the Premises or
to property placed therein prior to the commencement of the term of the Lease,
the same being at Tenant's sole risk and liability. Tenant shall be liable to
Landlord for any damage to the Premises or to any portion of the Work or
Additional Work caused by Tenant or any of Tenant's employees, agents,
contractors, workmen or suppliers. In the event that the performance of Tenant's
Pre-occupancy Work causes extra costs to Landlord or requires the use of other
Building services, Tenant shall reimburse Landlord for such extra cost and/or
shall pay Landlord for such elevator service or other Building services at
Landlord's standard rates then in effect.
9. Lease Provisions. The terms and provisions of the Lease, insofar as
they are applicable to this Work Letter, are hereby incorporated herein by
reference. All amounts payable by Tenant to Landlord hereunder shall be deemed
to be additional Rent under the Lease and, upon any default in the payment of
same, Landlord shall have all of the rights and remedies provided for in the
Lease.
10. Miscellaneous.
(a) This Work Letter shall be governed by the laws of the state in
which the Premises are located.
(b) This Work Letter may not be amended except by a written instrument
signed by the party or parties to be bound thereby.
(c) Any person signing this Work Letter on behalf of Tenant warrants
and represents he/she has authority to sign and deliver this Work Letter and
bind Tenant.
(d) Notices under this Work Letter shall be given in the same manner as
under the Lease.
(e) The headings set forth herein are for convenience only.
(f) This Work Letter sets forth the entire agreement of Tenant and
Landlord regarding the Work.
(g) In the event that the final working drawings and specifications are
included as part of the Initial Plan attached hereto, or in the event Landlord
performs the Work without the necessity of preparing working drawings and
specifications, then whenever the term "Working Drawings" is used in this
Agreement, such term shall be deemed to refer to the Initial Plan and all
supplemental plans and specifications approved by Landlord.
11. Exculpation of Landlord and Sealy. Notwithstanding anything to the
contrary contained in this Work Letter, it is expressly understood and agreed by
and between the parties hereto that:
(a) The recourse of Tenant or its successors or assigns against
Landlord with respect to the alleged breach by or on the part of Landlord of any
representation, warranty, covenant, undertaking or agreement contained in this
Work Letter (collectively, "Landlord's Work Letter Undertakings") shall extend
only to Landlord's interest in the real estate of which the Premises demised
under the Lease are a part (hereinafter, "Landlord's Real Estate") and not to
any other assets of Landlord or its beneficiaries; and
(b) Except to the extent of Landlord's interest in Landlord's Real
Estate, no personal liability or personal responsibility of any sort with
respect to any of Landlord's Work Letter Undertakings or any alleged breach
thereof is assumed by, or shall at any time be asserted or enforceable against,
Landlord, its beneficiaries, the Sealy Companies or Sealy & Company, Inc.; or
against any of their respective directors, officers, employees, agents,
constituent partners, beneficiaries, trustees or representatives.
EXHIBIT B
- 3 -
<PAGE>
IN WITNESS WHEREOF, this Work Letter Agreement is executed as of the 7th day of
May, 1997.
TENANT: LANDLORD:
MORGAN PRODUCTS, LTD.
doing business in Louisiana as
MORGAN DISTRIBUTION BR/NO LA. PROPERTIES, LLC
By: _________________________ By: SPM Industrial, LLC
Its: _________________________ Its: Administrative Member
______________________________
Mark P. Sealy
Member
EXHIBIT B
- 4 -
<PAGE>
SCHEDULE I
COPIES OF INITIAL PLAN & COST ESTIMATE
[Diagram of floor plan of premises]
EXHIBIT B
- 5 -
<PAGE>
EXHIBIT C
SUITE ACCEPTANCE AGREEMENT
DATE: ___________________
Building Name/Address: ______________________________
______________________________
______________________________
Tenant Name: ______________________________
Suite #: _________________
Management's Tenant Contact:______________ Phone #:______________
To Whom It May Concern:
As a representative of the above referenced tenant, I/we have physically
inspected the suite noted above and its improvements with
______________________, a representative of Sealy & Company, Inc. I/we accept
the suite improvements as to compliance with all the requirements indicated in
our lease, also including the following verified information below:
Lease Commencement Date:____________ Occupancy Date:____________
Lease Rent Start Date*: ____________ Actual Rent Start*_________
Lease Expiration Date: ____________ Actual Expiration Date:____
Date Keys Delivered: ____________
Items requiring attention:_______________________________________
______________________________________________________________________
*If these dates are not the same, attach documentation.
Very truly yours,
By:________________________________
Its:_______________________________ Distribution
Tenant
Date:______________________________ Tenant Lease File
<PAGE>
EXHIBIT D
Tenant Operations
Inquiry Form
<PAGE>
SCHEDULE 1 TO EXHIBIT D
List of Permissible
Hazardous Materials and Quantities
Exterior Grille Primer 10 Bottles
Vinyl to Vinyl Adhesive 20 Tubes
Silicone Sealant 20 Tubes
White Glue 10 One Gallon Bottles
White Aerosol Paint 24 Cans
<PAGE>
EXHIBIT E
Additional Insureds
Additional insureds pursuant to the requirements outlined in Article X of the
Lease:
BR/NO LA. Properties, LLC, all successors thereof and beneficiaries thereunder:
Sealy & Company, Inc.; and their respective agents and employees
The Insurance Certificate should be sent to:
Sealy & Company, Inc.
110 James Drive West
Suite 218
St. Rose, Louisiana 70087
Attention: Property Manager
<PAGE>
EXHIBIT F
Rules and Regulations
1. Tenant, its officers, agents, servants and employees shall not block
or obstruct any of the entries, passages, doors, hallways or stairways of the
Building or garage, or place, empty or throw any rubbish, litter, trash or
material of any nature into such areas, or permit such areas to be used at any
time except for ingress or egress of Tenant, its officers, agents, servants,
employees, patrons, licensees, customers, visitors or invitees.
2. The movement of furniture, equipment, machines, merchandise or
materials within, into or out of the Premises or the Building not in the
ordinary course of Tenant's business as permitted herein, shall be restricted to
time, method and routing of movement as determined by Landlord upon request from
Tenant and Tenant shall assume all liability and risk to property, the Premises
and the Building in such movement. The movement of furniture, equipment,
machines, merchandise or materials within, into or out of the Premises in the
ordinary course of Tenant's permitted business shall also be at Tenant's sole
risk and responsibility and shall be conducted in such a fashion as not to cause
damage or injury to the Premises or the Building or to disturb other occupants
thereof. Tenant shall not move furniture, machines, equipment, merchandise or
materials within, into or out of the Premises or the Building not in the
ordinary course of Tenant's permitted business without having first obtained a
written permit from Landlord twenty-four (24) hours in advance. Safes and other
heavy fixtures, equipment or machines intended to be kept permanently in the
Premises shall be moved into the Premises or the Building only with Landlord's
written consent and placed where directed by Landlord.
3. Landlord will not be responsible for lost or stolen personal
property, equipment, money or any article taken from Premises, regardless of how
or when loss occurs.
4. Tenant, its officers, agents, servants and employees shall not
install or operate any refrigerating, heating or air conditioning apparatus or
carry on any mechanical operation or bring into the Premises any inflammable
fluids or explosives without written permission of Landlord.
5. Tenant, its officers, agents, servants or employees shall not use
the Premises for housing, lodging or sleeping purposes or for the cooking or
preparation of food without written permission of Landlord (the preparation of
coffee, tea, or the like is specifically excluded from this limitation).
6. Tenant, its officers, agents, servants, employees, patrons,
licensees, customers, visitors or invitees shall not bring into the Premises or
keep on Premises any fish, fowl, reptile, insect or animal without the prior
written consent of the Landlord.
7. No additional locks shall be placed on any door in the Building
without the prior written consent of Landlord. Landlord will furnish two keys to
each lock on doors in the Premises and Landlord, upon request of Tenant, shall
provide additional duplicate keys at Tenant's expense. Landlord may at all times
keep a pass key to the Premises. All keys shall be returned to Landlord promptly
upon termination of this Lease.
8. Tenant, its officers, agents, servants or employees shall do no
painting or decorating in the Premises; or mark, paint or cut into, drive nails
or screw into nor in any way deface any part of the Premises or the Building
without the prior written consent of Landlord. If Tenant desires signal,
communication, alarm or other utility or service connection installed or
changed, such work shall be done at expense of Tenant, with the approval and
under the direction of Landlord.
9. Tenant, its officers, agents, servants and employees shall not
permit the operation of any musical or sound-producing instruments or device
which may be heard outside the Premises, or which may emanate electrical waves
or x-rays or other emissions which will impair radio or television broadcasting
or reception from or in the Building, or be hazardous to health, well-being or
condition of persons or property.
10. Tenant, its officers, agents, servants and employees shall, before
leaving the Premises unattended, close and lock all doors and shut off all
lights, business equipment and machinery. Damage resulting from failure to do so
shall be paid by Tenant. Each Tenant, before closing for the day and leaving the
Premises, shall see that all doors are locked.
11. All plate and other glass now in the Premises or Building which is
broken through cause attributable to Tenant, its officers, agents, servants,
employees, patrons, licensees, customers, visitors or invitees shall be replaced
by and at expense of Tenant under the direction of Landlord.
12. Tenant shall give Landlord prompt notice of all accidents to or
defects in air conditioning equipment, plumbing, electric facilities or any part
of appurtenance of the Premises.
13. The plumbing facilities shall not be used for any other purpose
than that for which they are constructed, and no foreign substance of any kind
shall be thrown therein, and the expense of any breakage, stoppage or damage
resulting from a violation of this provision shall be borne by Tenant, who
shall, or whose officers, employees, agents, servants, patrons, customers,
licensees, visitors or invitees shall, have caused it. Landlord shall not be
responsible for any damage due to stoppage, backup or overflow of the drains or
other plumbing fixtures.
14. All contractors and/or technicians performing work for Tenant
within the Premises, Building or garage facilities shall be referred to Landlord
for approval before performing such work. This shall apply to all work
including, but not limited to, installation of telephones, telegraph equipment,
electrical devices and attachments, and all installations affecting floors,
walls, windows, doors, ceilings, equipment or any other physical feature of the
Building, the Premises or garage facilities. None of this work shall be done by
Tenant without Landlord's prior written approval.
<PAGE>
15. No showcases or other articles shall be put in front of or affixed
to any part of the exterior of the Building, without the prior written consent
of Landlord.
16. Neither Tenant nor any officer, agent employee, servant, patron,
customer, visitor, licensee or invitee of any Tenant shall go upon the roof of
the Building, without the written consent of the Landlord.
17. In the event Tenant must dispose of crates, boxes, etc. which will
not fit into wastepaper baskets, it will be the responsibility of Tenant to
dispose of same properly.
18. If the Premises shall become infested with vermin, roaches, or
other undesirable creatures, Tenant at its sole cost and expense, shall cause
the Premises to be professionally treated from time to time to the satisfaction
of Landlord and shall employ such exterminators for this purpose as shall be
approved by Landlord.
19. Tenant shall not install any antenna or aerial wires, radio or
television equipment of any other type of equipment inside or outside of the
Building without Landlord's prior approval in writing and upon such terms and
conditions as may be specified by Landlord in each and every instance.
20. Tenant shall not make or permit any use of the Premises, the
Building or garage facilities which, directly or indirectly, is forbidden by
law, ordinance or governmental or municipal regulation, code or order or which
may be disreputable or dangerous to life, limb or property.
21. Tenant shall not advertise the business, profession or activities
of Tenant in any manner which violates the letter or spirit of any code of
ethics adopted by any recognized association or organization pertaining thereto,
use the name of the Building for any purpose other than that of the business
address of Tenant or use any picture or likeness of the Building or the complex
name in any letterheads, envelopes, circulars, notices, advertisements,
containers or wrapping material without Landlord's express consent in writing.
22. Tenant shall not conduct its business and/or control its officers,
agents, employees, servants, patrons, customers, licensees and visitors in such
a manner as to create any nuisance or interfere with, annoy or disturb any other
tenant or Landlord in its operation of the Building or commit waste or suffer or
permit waste to be committed in Premises.
23. The Tenant shall not install in the Premises any equipment which
uses a substantial amount of electricity without the advance written consent of
the Landlord. The Tenant shall ascertain from the Landlord the maximum amount of
electrical current which can safely be used in the Premises, taking into account
the capacity of the electric wiring in the Building and the Premises and the
needs of other tenants in the Building and the complex and shall not use more
than such safe capacity. The Landlord's consent to the installation of electric
equipment shall not relieve the Tenant from the obligation not to use more
electricity than such safe capacity.
24. The Tenant, without the prior written consent of Landlord, shall
not lay linoleum or other similar floor covering within the Premises.
25. No outside storage of any material, pallets, disabled vehicles,
etc., will be permitted including but not limited to trash, except in approved
containers.
26. Tenant shall not allow a fire or bankruptcy sale or any auction to
be held on the Premises, or allow the Premises to be used for the storage of
merchandise held for sale to the general public.
27. Canvasing, soliciting, distribution of hand-bills or any other
written material peddling in the Building and the complex are prohibited, and
each Tenant shall cooperate to prevent the same.
28. Tenant agrees to park in only those parking stalls designated as
tenant parking. Tenant shall hold Landlord harmless for the removal and charges
related thereto when Tenant, or its employees, park in space designated as
visitor, handicapped parking, red or yellow curb areas. Tenant shall not park or
allow to be kept any vehicle on the Premises, either company or personnel, which
is not being used on a daily basis.
29. Tenant shall not maintain armed security in or about the Premises
nor possess any weapons, explosives, combustibles or other hazardous devises in
or about the Building and/or Premises.
30. Landlord may waive any one more of these Rules and Regulations for
the benefit of any particular tenant or landlords, but no such waiver by
Landlord shall be construed as a waiver of such Rules and Regulations if favor
of any other tenant or landlords, nor prevent Landlord from thereafter enforcing
any such Rules and Regulations against any or all of the tenants of the complex.
31. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of any Lease on premises in the complex.
<PAGE>
EXHIBIT G
PERSONAL GUARANTY
[THIS PAGE WAS INTENTIONALLY OMITTED.]
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from Morgan
Products Form 10-Q as of July 5, 1997 and is qualified in its entirety by
reference to such Form 10-Q filing.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<PERIOD-END> JUL-5-1997
<FISCAL-YEAR-END> DEC-31-1997
<CASH> 1,512
<SECURITIES> 0
<RECEIVABLES> 41,786
<ALLOWANCES> 1,204
<INVENTORY> 69,765
<CURRENT-ASSETS> 113,237
<PP&E> 51,996
<DEPRECIATION> 28,430
<TOTAL-ASSETS> 147,823
<CURRENT-LIABILITIES> 24,706
<BONDS> 63,720
0
0
<COMMON> 44,331
<OTHER-SE> 15,066
<TOTAL-LIABILITY-AND-EQUITY> 147,823
<SALES> 202,606
<TOTAL-REVENUES> 202,606
<CGS> 170,140
<TOTAL-COSTS> 203,928
<OTHER-EXPENSES> (92)
<LOSS-PROVISION> 71
<INTEREST-EXPENSE> 2,571
<INCOME-PRETAX> (3,801)
<INCOME-TAX> 60
<INCOME-CONTINUING> (3,861)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (3,861)
<EPS-PRIMARY> (.38)
<EPS-DILUTED> (.38)
<PAGE>
</TABLE>
