<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
--------------------
FORM 10-Q
Quarterly Report Pursuant to section 13 or 15(d) of
the Securities and Exchange Act of 1934
--------------------
For the Quarter ended Commission File Number
September 30, 1998 0-14903
Baldwin Piano & Organ Company
(Exact name of registrant as specified in its charter)
Delaware 31-1091812
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
4680 Parkway Drive, Suite 200
Mason, Ohio 45040-5301
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (513) 754-4500
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 of the Common Stock outstanding of Baldwin Piano &
Organ Company, as of November 1, 1998 is 3,455,110
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BALDWIN PIANO & ORGAN COMPANY
INDEX
Page
Number
------
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Unaudited Condensed Consolidated Balance Sheets as of
September 30, 1998 and December 31, 1997 .................. 3
Unaudited Condensed Consolidated Statements of Earnings
for the three months and nine months ended
September 30, 1998 and 1997 ......................... 4
Unaudited Condensed Consolidated Statements of Cash
Flows for the nine months ended
September 30, 1998 and 1997 ......................... 5
Notes to Unaudited Condensed Consolidated Financial
Statements, September 30, 1998 ............................ 6
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations .............. 8
Item 3. Quantitative and Qualitative Disclosures About
Market Risk ......................................13
PART II. OTHER INFORMATION
Item 1. Legal Proceedings .........................................14
Item 2. Changes in Securities and Use of Proceeds .................14
Item 3. Defaults upon Senior Securities ...........................14
Item 4. Submission of Matters to a Vote
of Security Holders ............................14
Item 5. Other Information .........................................14
Item 6. Exhibits and Reports on Form 8-K ..........................15
Signatures ..........................................................16
Exhibit Index .......................................................17
2
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BALDWIN PIANO & ORGAN COMPANY AND SUBSIDIARIES
UNAUDITED CONDENSED CONSOLIDATED BALANCE SHEETS
(in thousands of dollars)
<TABLE>
<CAPTION>
Sept. 30, December 31,
ASSETS 1998 1997
--------- ---------
<S> <C> <C>
Current assets:
Cash ................................. $ 380 $ 680
Receivables, net ..................... 24,649 23,201
Inventories .......................... 51,925 36,649
Deferred income taxes ................ 2,460 2,460
Other current assets ................. 4,541 4,423
--------- ---------
Total current assets ....... 83,955 67,413
--------- ---------
Installment receivables,
less current portion ................. 13,329 16,502
Property, plant and equipment, net ......... 24,754 18,262
Other assets ............................... 14,235 12,183
--------- ---------
Total assets ............... $ 136,273 $ 114,360
========= =========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Current portion of long-term debt .... $ 1,000 $ 900
Accounts payable ..................... 12,687 10,812
Income taxes payable ................. 122 575
Accrued liabilities .................. 6,139 7,221
--------- ---------
Total current liabilities .. 19,948 19,508
--------- ---------
Long-term debt, less current portion ....... 49,199 27,650
Deferred income taxes ...................... 237 237
Other liabilities .......................... 6,038 6,142
--------- ---------
Total liabilities .......... 75,422 53,537
--------- ---------
Shareholders' equity:
Common stock ......................... 42 42
Additional paid-in capital ........... 12,581 12,381
Retained earnings .................... 54,723 54,783
--------- ---------
67,346 67,206
Less cost of treasury shares ......... (6,495) (6,383)
--------- ---------
Total shareholders' equity . 60,851 60,823
--------- ---------
Total liabilities and
shareholders' equity .... $ 136,273 $ 114,360
========= =========
</TABLE>
See accompanying Notes to Unaudited Condensed Consolidated Financial Statements.
3
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BALDWIN PIANO & ORGAN COMPANY AND SUBSIDIARIES
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF EARNINGS
(in thousands, except net earnings per share)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
Sept. 30 Sept. 30
------------------------ -----------------------
1998 1997 1998 1997
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Net sales ...................................... $ 34,277 $ 33,915 $ 98,072 $103,629
Cost of goods sold ............................. 28,884 26,539 81,953 83,324
-------- -------- -------- --------
Gross profit ............................. 5,393 7,376 16,119 20,305
Income on the sale of
installment receivables .................. 1,983 1,790 5,483 5,461
Interest income on
installment receivables ..................... 388 300 1,196 854
Other operating income, net .................... 223 386 966 1,807
-------- -------- -------- --------
7,987 9,852 23,764 28,427
Operating expenses:
Selling, general and
administrative ........................ 6,608 7,179 19,563 20,451
Provision for doubtful
accounts ............................ 343 377 1,001 1,002
-------- -------- -------- --------
Operating profit .................... 1,036 2,296 3,200 6,974
Interest expense ............................... 885 592 2,170 2,248
-------- -------- -------- --------
Earnings before
income taxes ................... 151 1,704 1,030 4,726
Income taxes ................................... 58 645 396 1,779
-------- -------- -------- --------
Net earnings ........................ $ 93 $ 1,059 $ 634 $ 2,947
======== ======== ======== ========
Basic earnings per share ....................... $ 0.03 $ 0.31 $ 0.18 $ 0.86
======== ======== ======== ========
Diluted earnings per share ..................... $ 0.03 $ 0.30 $ 0.18 $ 0.85
======== ======== ======== ========
Weighted average number
of common shares ......................... 3,453 3,442 3,450 3,432
======== ======== ======== ========
Weighted average number of
common and common
equivalent shares ................... 3,465 3,489 3,502 3,479
======== ======== ======== ========
</TABLE>
See accompanying Notes to Unaudited Condensed Consolidated Financial Statements.
4
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BALDWIN PIANO & ORGAN COMPANY AND SUBSIDIARIES
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands of dollars)
<TABLE>
<CAPTION>
Nine months ended Sept. 30
--------------------------
INCREASE (DECREASE) IN CASH 1998 1997
- - ---------------------------------------------------- -------- --------
<S> <C> <C>
Cash flows from operating activities
Net earnings ................................. $ 634 $ 2,947
Reconciliations of net earnings
to net cash provided by (used in)
operating activities
Depreciation and amortization ...... 2,303 2,733
Provision for doubtful accounts .... 1,002 1,002
Changes in working capital ......... (20,423) 1,986
-------- --------
Net cash (used in) provided by
operating activities .................... (16,484) 8,668
-------- --------
Cash flows from investing activities
Additions to property, plant and
equipment ............................... (8,573) (1,743)
-------- --------
Net cash used in investing activities ........ (8,573) (1,743)
-------- --------
Cash flows from financing activities:
Installment receivables written .............. (70,655) (59,367)
Installment receivables liquidated ........... 8,067 6,441
Proceeds from sale of installment
receivables ............................. 65,796 49,583
Borrowing(repayment)on long-term debt ........ 21,505 (3,768)
Proceeds from exercise of stock options ...... 44 35
-------- --------
Net cash provided by (used in)
financing activities .................... 24,757 (7,076)
-------- --------
Net decrease in cash ............................... (300) (151)
Cash at beginning of period ........................ 680 774
-------- --------
Cash at end of period .............................. $ 380 $ 623
======== ========
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION
- - ------------------------------------------------
Cash paid during the period for:
Interest ..................................... $ 1,975 $ 2,295
======== ========
Income taxes ................................. $ 311 $ 286
======== ========
</TABLE>
See accompanying Notes to Unaudited Condensed Consolidated Financial Statements.
5
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BALDWIN PIANO & ORGAN COMPANY AND SUBSIDIARIES
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Sept. 30, 1998
(in thousands of dollars)
(1) BASIS OF REPORTING FOR CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
The unaudited condensed consolidated financial statements included herein
have been prepared by Baldwin Piano & Organ Company ("Baldwin" or "Company")
pursuant to the rules and regulations of the Securities and Exchange Commission.
Certain information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting principles
have been omitted pursuant to such rules and regulations, although the Company
believes that the disclosures are adequate to make the information presented not
misleading. These financial statements should be read in conjunction with the
financial statements and notes thereto included in the Company's Annual Report
and Form 10-K for the year ended December 31, 1997.
The financial statements presented herewith reflect all adjustments
(consisting of normal recurring adjustments) which are, in the opinion of
management, necessary to a fair statement of the results for the nine month
periods ended September 30, 1998 and 1997. Results of operations for interim
periods are not necessarily indicative of results to be expected for an entire
year.
In June 1997, the Financial Accounting Standards Board issued SFAS No.
130, "Reporting Comprehensive Income" and SFAS No. 131, "Disclosures about
Segments of an Enterprise and Related Information". SFAS No. 130 was adopted
during the first quarter of 1998, however, management believes that the
disclosure provisions of SFAS No. 130 are not material to its interim
consolidated financial statements. Baldwin will apply SFAS No. 131 to its 1998
annual financial statements. Adoption of SFAS No. 131 will not impact the
reported results of operations or financial position of Baldwin. However, the
adoption may require additional disclosure of information related to certain
segments of Baldwin's operations when SFAS No. 131 is implemented. During 1998
two additional standards have been issued, SFAS No. 132, "Employers' Disclosures
about Pensions and Other Postretirement Benefits" and SFAS No. 133, "Accounting
for Derivative Instruments and Hedging Activities". Baldwin will be required to
adopt SFAS No. 132 during 1998. Adoption of this Standard will not impact the
reported results of operations or financial position, but additional disclosures
may be required. Baldwin will be required to adopt SFAS No. 133 no later than
January 1, 2000. Management has not yet analyzed the impact of SFAS No. 133 on
its consolidated financial statements.
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(2) INVENTORIES
Inventories consist of the following (in thousands of dollars):
<TABLE>
<CAPTION>
Sept. 30, December 31,
1998 1997
-------- --------
<S> <C> <C>
FIFO cost:
Raw material ......................... $ 22,503 $ 18,406
Work-in-process ...................... 12,021 8,865
Finished goods ....................... 27,985 19,306
-------- --------
62,509 46,577
Less revaluation to LIFO ................... (10,584) (9,928)
-------- --------
Net inventories ............ $ 51,925 $ 36,649
======== ========
</TABLE>
(3) EARNINGS PER SHARE
A reconciliation of the numerator and denominator of basic earnings per
share to diluted earnings per share is as follows (in thousands, except
per share amounts):
<TABLE>
<CAPTION>
Three Months Ended September 30:
1998 1997
--------------------------- ----------------------
Per Per
Income Shares Share Income Shares Share
------ ------ ----- ------ ------ -----
<S> <C> <C> <C> <C> <C> <C>
Earnings per share $93 3,453 $.03 $1,059 3,442 $.31
Dilutive effect of
Options 12 47
---- ----- ---- ------ ----- ----
Earnings per share-
Assuming dilution $93 3,465 $.03 $1,059 3,489 $.30
<CAPTION>
Nine Months Ended September 30:
1998 1997
--------------------------- ----------------------
Per Per
Income Shares Share Income Shares Share
------ ------ ----- ------ ------ -----
<S> <C> <C> <C> <C> <C> <C>
Earnings per share $634 3,450 $.18 $2,947 3,432 $.86
Dilutive effect of
Options 52 47
---- ----- ---- ------ ----- ----
Earnings per share-
Assuming dilution $634 3,502 $.18 $2,947 3,479 $.85
==== ===== ==== ====== ===== ====
</TABLE>
7
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BALDWIN PIANO & ORGAN COMPANY AND SUBSIDIARIES
Management's Discussion and Analysis of
---------------------------------------
Financial Condition and Results of Operations
---------------------------------------------
RESULTS OF OPERATIONS
THIRD QUARTER AND NINE MONTHS OF 1998 COMPARED
TO THE THIRD QUARTER AND NINE MONTHS OF 1997
Net sales for the third quarter rose 1 percent to $34.3 million,
compared with $33.9 million for the third quarter of 1997. A year ago, the
Company reported third quarter non-recurring sales of $2.3 million related to
the phase-out of its consignment sales program. Excluding the impact of last
year's non-recurring sales, third quarter sales grew 8 percent over prior year.
The increase in third quarter net sales was significantly driven by continued
gains in Contract Electronics and strong unit gains in piano sales.
Net earnings for the third quarter were $93,000 or 3 cents per diluted
share, compared with $1.1 million, or 30 cents per diluted share, in 1997.
Excluding the net impact of last year's non-recurring items from the phase-out
of dealer consignment sales, third quarter net earnings per diluted share would
have been 3 cents for 1998, versus 29 cents in 1997.
Net sales for the first nine months declined 5 percent to $98.1
million, compared with $103.6 million for the first nine months of 1997. A year
ago, the Company reported non-recurring sales of $15.0 million for the first
nine months related to the phase-out of dealer consignment sales. Excluding the
impact of last year's non-recurring sales, net sales for the first nine months
of 1998 grew 11 percent over prior year.
Net earnings for the first nine months were $634,000, or 18 cents per
diluted share, compared with net earnings of $2.9 million, or 85 cents per
diluted share in 1997. Excluding the impact of non-recurring items, last year's
net earnings were $1.9 million, or 54 cents per diluted share, for the first
nine months of 1997.
Excluding the impact of last year's one-time sales, third quarter sales
for the Company's Music business grew 8 percent to $23.8 million, versus
comparable sales of $22.0 million for the third quarter a year ago. Excluding
the impact of last year's one-time sales, Music sales for the first nine months
of 1998 have grown 6 percent to $64.8 million. Third quarter unit increases
across each of the segment's product lines were more than offset by pricing
pressures as the Company aggressively defended its market share against Asian
imports. This resulted in lower third quarter earnings compared with 1997.
Third quarter sales for the Company's Contract Electronics business
grew 10 percent to $10.0 million, versus sales of $9.0 million for the third
quarter a year ago. Through the first nine months of 1998, Contract Electronics
sales have grown 22 percent to $31.6 million, compared with $26 million for the
first nine months of 1997. New contracts continue to account for much of this
growth.
Retail financing revenues for the third quarter rose 14 percent to $2.4
million versus $2.1 million a year ago. For the first nine months of 1998,
financing revenues were $6.7 million compared to $6.3 million in
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1997, a 6 percent increase. In 1997, the Company adopted the mandatory
accounting treatment of Statement of Financial Accounting Standards No. 125
(SFAS), "Accounting for Transfers and Servicing of Financial Assets and
Extinguishments of Liabilities." Continued growth in the SFAS eligible portfolio
and a change in recourse estimates allowed the third quarter impact to be
neutral versus prior year. Without the impact of SFAS 125, revenues for the
first nine months of 1998 would have been 12 percent higher than 1997.
Other net operating income in the third quarter of 1998 was $223,000, a
$163,000 decrease compared with $386,000 during the third quarter of 1997. Other
net operating income for the first nine months of 1998 was $1.0 million versus
$1.8 million in 1997. This decrease from prior year is primarily due to the loss
of display income on consigned pianos resulting from the Company's decision to
phase-out its consignment inventory program in 1997. The one-time cash infusion
from this phase-out was applied to then-existing debt, resulting in reduced
interest expense.
Selling, general and administrative expenses in the third quarter of
1998 were $7.0 million, a $600,000 decrease compared with $7.6 million a year
ago. Selling, general and administrative expenses for the first nine months of
1998 were $20.6 million, a $900,000 decrease compared with $21.5 million for the
first nine months of 1997. Excluding the cost of one-time events, selling,
general and administrative expense for the first nine months of 1998 is equal to
a year ago. As a percent of sales, selling, general and administrative expense
has declined from 23.3 percent in 1997 to 21.0 percent in 1998.
Interest expense in the third quarter rose $293,000 to $885,000
compared with $592,000 in 1997. Interest expense for the first nine months of
1998 was $2.2 million, a $78,000 decrease versus 1997. The interest expense
reducing impact of the Company's phase-out of its consignment inventory program
has been offset by other investments: the financing costs on increases in
Company-owned installment receivables as a result of strong Retail Financing
activity, significant investments in machinery and equipment, and inventories of
new products to support seasonally high fourth quarter piano sales.
INFLATION, OPERATIONS AND INTEREST RATES
Cost inflation can affect the Company's results. However, the Company
has generally been able to offset the impact of higher employment costs per hour
and higher raw material unit costs by improved efficiency and higher sales
prices.
The operations of the Company and its predecessors are subject to
Federal, state and local laws regulating the discharge of materials into the
environment. The Company does not anticipate that any environmental matters
currently known to the Company will result in any material liability.
The Company and its subsidiaries' operating results are sensitive to
changes in interest rates primarily because of fixed interest rates on
installment receivables contracts and floating interest rates on a substantial
portion of indebtedness. Additionally, the buyer of the
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installment receivables earns interest on the outstanding principal balance of
the contracts based upon a floating interest rate provision.
The Company can partially offset the effect of interest rate changes by
increasing interest rates on its new installment receivable contracts. In
November 1997 and December 1996, the Company entered into two-year interest rate
cap agreements in order to reduce the potential impact of increases in interest
rates on $20 million and $44 million, respectively of floating-rate long-term
debt. The agreements entitle the Company to receive from the counterparty, on a
monthly basis, interest income to the extent the one-month commercial paper rate
exceeds 12 percent. The Company is exposed to credit losses in the event of
nonperformance by the counterparty to its interest rate caps, but has no
off-balance sheet credit risk of accounting loss. The Company anticipates,
however, that the counterparty will be able to satisfy their obligations under
the contracts. The Company does not obtain collateral or other security to
support financial instruments subject to credit risk, but monitors the credit
standing of the counterparty.
The annual rate of interest under the Company's revolving Credit
Facility is equal to 1.5 percentage points above LIBOR, or under certain
specified circumstances, 0.5 percentage points per annum above the Prime Rate.
LIQUIDITY AND CAPITAL RESOURCES
The Company requires significant working capital to support its
operations. Under Baldwin's traditional consignment inventory program, inventory
levels would increase during each year to support its high fourth quarter
seasonal sales demand. During 1997 the Company phased out its consignment
inventory program. This phase-out accounted for a large portion of the decrease
in inventory and the increase in receivables that occurred in 1997. Also during
1997 and 1998, installment receivables increased as a result of a larger
portfolio of installment contracts.
On October 17, 1997 the Company replaced its short-term $50 million
revolving line of credit with a long-term, secured $40 million revolving Credit
Facility expiring on October 1, 2000; however the Company can terminate the
agreement at any time with sixty days' notice. Under the Credit Facility, the
lenders have made available a line of credit based upon certain percentages of
the carrying value of the company's inventories and accounts receivable. At
September 30, 1998, the rate under the Credit Facility was 7.2% and the Company
has approximately $3.0 million of additional borrowing available under this
Credit Facility.
On July 29, 1998 the Company opened a $6.0 million open ended lease
facility for the acquisition of future capital assets. As of September 30, 1998,
the Company had $0.5 million funded against this credit facility.
On May 15, 1998 the Company amended its existing term loan from $5
million to $10 million. The term loan is payable in quarterly principal
installments of $250,000 beginning July 1, 1998 with a final payment of $5
million on May 1, 2003. The quarterly rate of interest on the amended term loan
is LIBOR plus 175 basis points. There was no change in interest rates.
Concurrent with the amending of the term loan, the
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Credit Facility borrowing capacity was increased from $43.8 to $44.0 million.
The additional term loan funds were all applied to the Company's
working capital revolving loan which was used as a funding source for the
Company's 1998 capital investments. Future investments will be funded through
operating cash flows and a mix of leases and borrowings. The Company anticipates
that its capital investments will enhance future competitiveness and
profitability. Capital expenditures amounted to $8.6 million in the first nine
months of 1998 and $1.7 million in the comparable period of 1997. At September
30, 1998, the Company has outstanding capital commitments of $432,000.
The Company's debt agreements contain covenants that require the
Company to maintain certain financial ratios and tangible net worth within
defined amounts. As of September 30, 1998, the Company was in compliance with
such terms.
In July, 1998, the Company entered into an inventory purchase and
consignment agreement with a financial institution to finance the sale of pianos
to the Company's institutional customers such as colleges and universities at an
interest rate of 9.0%. This new financing arrangement allows the Company to
increase the amount of funding available in relation to its inventories and to
reduce borrowings under its revolving line of credit. As of September 30, 1998,
the Company had borrowed approximately $3.3 million pursuant to this arrangement
and had additional availability of approximately $1.7 million. This agreement
was amended in October 1998 to permit similar financing of pianos with dealers
for use by artists and for concert halls.
In October, 1997, the Company's finance subsidiary (Finance) amended
its agreements with an independent entity to sell substantially all of its
installment receivable contracts up to a maximum outstanding principal amount of
$150 million. Certain installment receivables are not eligible for sale and are
retained by Finance. Finance continues to service all installment receivables
sold. At the time of each installment receivable sale, Finance receives cash
equal to the unpaid principal balance of the contracts, less a purchase discount
applied to the principal balance of the contacts sold. The purchase discount is
adjusted at each receivable sale using the loss experience and effective yield
of the portfolio.
The buyer of the installment receivables earns interest on the
outstanding principal balance of the contracts based upon a floating interest
rate provision. Over the duration of the contracts, the difference between the
actual yield on the installment contracts sold and the amount retained by the
buyer under the floating interest rate provisions is remitted to Finance as a
service fee. In February 1994, Finance entered into a five year interest rate
swap agreement in order to reduce the potential impact of an increase in
interest rates on $20 million of installment contracts.
Proceeds from the sale of installment receivables amounted to $65.8
million for the nine months ended September 30, 1998 and $49.6 million for the
comparable period in 1997. This increase in 1998 compared to 1997 is largely the
result of an increase in the volume of new
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installment contracts written at traditional keyboard dealers and at Company
sponsored "event sales".
Under the sale agreements, Finance is required to repurchase accounts
that become more than 120 days past due or accounts that are deemed
uncollectible from the independent entity. The repurchase price is equal to the
remaining unpaid principal balance of the contract on the date repurchased, less
the related purchase discount. Finance is responsible for all credit losses
associated with the sold receivables. Finance remains contingently liable on
approximately $99.3 million of installment receivables. The Company believes an
adequate allowance has been provided for any uncollectible receivables.
On June 30, 1998 the Company's retail leasing subsidiary sold $890,000
of leasing receivables to a third party. The amount will be paid through 84
successive monthly installments at an interest rate of 8.5% per annum. On August
6, 1998 the Company's retail leasing sold an additional $469,000 of leasing
receivables to be paid in 84 successive monthly installments at an interest rate
of 7.75% per annum.
YEAR 2000
IMPACT IF THE YEAR 2000 ISSUE
The year 2000 issue is the result of using only the last two digits to indicate
the year in computer hardware, in software programs, and in embedded technology
such as micro-controllers. As a result, this hardware and software may not
properly recognize a year that begins with "20" instead of the familiar "19". If
uncorrected, such programs may be unable to interpret dates beyond the year
1999, which could cause computer system failure or other errors which disrupt
operations.
Recognizing in 1994 the importance of the Year 2000 issue and other management
information system needs, the Company replaced its then-existing computer
software with new third-party (MRPII and Human Resources) software. Upon
continued payment of a maintenance fee to the software vendor, the Company was
entitled to subsequent upgrades and new releases, including the programs
necessary to avoid potential Year 2000 issues. The latest versions are expected
to avoid Year 2000 problems, and have been implemented in September 1998. The
Company has also installed and implemented a new computer network system at its
headquarters which will, among other things, avoid much of the embedded
technology risk. On an allocation of resources basis, the implementation has
cost approximately $350,000 through the third quarter. The Company estimates
incurring an additional $80,000 to fully complete the upgrade implementation.
In addition, the Company is in the process of asking its vendors about their
progress in identifying and addressing problems that their computer systems may
encounter in correctly processing date information related to the Year 2000. The
Company intends to continue its efforts to seek reassurance regarding the Year
2000 compliance of vendors. In the event any third parties cannot timely provide
the Company with products or services that meet the Year 2000 requirements, the
Company's ability to offer products and services and the ability to process
sales could be materially affected.
The costs incurred by the Company for the nine months ended September 30, 1998,
have been approximately $350,000. The Company estimates it will incur an
additional $80,000 in costs during the remainder of 1998 to support its
compliance initiatives. Although the Company expects its operating software to
be Year 2000 compliant on or before December 31, 1998, it cannot predict the
outcome or the success of its Year 2000 program, or that third party systems
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are or will be Year 2000 compliant, or the costs required to address the Year
2000 issue, or whether a failure to achieve substantial Year 2000 compliance
will have a material adverse effect on the Company's business, financial
condition or results of operations. The Company is in the progress of developing
a contingency plan to address possible risks to its systems. It is the Company's
intention to implement its contingency plan no later than July 1999.
QUANTITATIVE AND QUALITATIVE DISCLOSURES
----------------------------------------
ABOUT MARKET RISK
-----------------
Not applicable
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BALDWIN PIANO & ORGAN COMPANY AND SUBSIDIARIES
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The Company is involved in legal proceedings arising in its normal
course of business. The Company does not believe that any existing claim or suit
will have a material adverse effect on the business or financial condition of
the Company.
The operations of the Company and its predecessors are subject to
federal, state and local laws regulating the discharge of pollutants into the
environment. The Company does not anticipate that any environmental matters
currently known to the Company will result in proceedings against the Company or
in any material liability.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
No changes have been made to the instruments defining the right of the
holders of the Company's common stock or to the rights of such shareholders.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
The Company is not in default nor has it defaulted on any indebtedness.
The Company is not obligated to pay any dividends or other payment to any of its
shareholders.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
There were no matters submitted to security holders for vote during the
quarter.
ITEM 5. OTHER INFORMATION
The next regularly scheduled Annual Meeting for the Company will be May
4, 1999.
On October 12, 1998, the Company's Board of Directors adopted a Shareholder
Rights Plan and declared a shareholder dividend of one stock purchase right for
each share of common stock owned on October 22, 1998, the record date for the
dividend. The rights plan was adopted to protect shareholders against partial
tender offers and other abusive takeover tactics that might be used to gain
control of the Company without paying all shareholders a full and fair price.
The Company's plan permits a qualified offer (as defined in the plan) to go
forward without board approval. Additional details regarding the Rights are
incorporated herein by reference from the Company's Form 8-K filed with the
Securities and Exchange Commission on October 13, 1998.
During November 1998, the Company relocated its principal executive offices
to 4680 Parkway Drive, Suite 200, Mason, Ohio 45040-5301. Its new telephone
number is (513)754-4500.
14
<PAGE> 15
BALDWIN PIANO & ORGAN COMPANY AND SUBSIDIARIES
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
--------
10.1 Fourth Amendment to Credit Agreement, between Baldwin
Piano & Organ Company and The Fifth Third Bank and
NBD Bank, N.A., dated September 21, 1998.
10.2 Office lease between Baldwin Piano & Organ Company
and Duke Realty Limited Partnership, dated July 2,
1998.
10.3 Amended and Restated Inventory Purchase and
Consignment Agreement, between Baldwin Piano & Organ
Company and Deutsche Financial Services Corporation,
dated October 28,1998.
19. 1998 Third Quarter Report to Shareholders of the
Company.
99.1 Press Release, dated August 14, 1998, announcing the
Company's headquarters re-location from Loveland to
near- by Deerfield Township, Ohio.
99.2 Press Release, dated September 17, 1998, announcing
the Company's ConcertMaster player piano system
earning top honors for technological excellence at
the Custom Electronic Design and Installation
Association's (CEDIA) EXPO '98.
99.3 Press Release, dated September 21, 1998, announcing
the Company's introduction of a new durable, super
high-gloss polyester finish. 99.4 Press Release,
dated October 22, 1998 announcing the Company's
financial results for the third quarter of 1998.
27 Financial Data Schedule.
------------------------------
Index to Exhibits appears on sequentially numbered page 17.
(b) Reports on Form 8-K
-------------------
On September 17, 1998, the Company filed a report on Form 8-K
announcing the dismissal of KPMG Peat Marwick as independent auditors and
appointing Deloitte & Touche LLP as independent auditors of the Company for the
year ending December 31, 1998.
The Company also filed a report on Form 8-K during the fourth
quarter of 1998. The report on Form 8-K related to the Company's adoption of the
shareholder rights plan described in Item 5 above.
15
<PAGE> 16
BALDWIN PIANO & ORGAN COMPANY AND SUBSIDIARIES
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.
BALDWIN PIANO & ORGAN COMPANY
DATE: November 13, 1998 BY: /S/ KAREN L. HENDRICKS
-------------------------- ---------------------------------
Karen L. Hendricks, Chairman,
Chief Executive Officer and
President
DATE: November 13, 1998 BY: /S/ PERRY H. SCHWARTZ
-------------------------- ---------------------------------
Perry H. Schwartz, Executive
Vice President and Chief
Financial Officer
16
<PAGE> 17
BALDWIN PIANO & ORGAN COMPANY AND SUBSIDIARIES
INDEX TO EXHIBITS
Exhibit
Number Exhibit
- - ------ -------
10.1 Fourth Amendment to Credit Agreement, between Baldwin
Piano & Organ Company and The Fifth Third Bank and
NBD Bank, N.A., dated September 21, 1998.
10.2 Office lease between Baldwin Piano & Organ Company
and Duke Realty Limited Partnership, dated July 2,
1998.
10.3 Amended and Restated Inventory Purchase and
Consignment Agreement, between Baldwin Piano & Organ
Company and Deutsche Financial Services Corporation,
dated October 28, 1998.
19 1998 Third Quarter Report to Shareholders of the
Company.
99.1 Press Release, dated August 14, 1998, announcing the
Company's headquarters re-location from Loveland to
near-by Deerfield Township, Ohio.
99.2 Press Release, dated September 17, 1998, announcing
the Company's ConcertMaster player piano system
earning top honors for technological excellence at
the Custom Electronic Design and Installation
Association's (CEDIA) EXPO '98.
99.3 Press Release, dated September 21, 1998, announcing
the Company's introduction of a new durable, super
high-gloss polyester finish.
99.4 Press Release, dated October 22, 1998 announcing the
Company's financial results for the third quarter of
1998.
27 Financial Data Schedule
-----------------------------------
17
<PAGE> 1
Exhibit 10.1
FOURTH AMENDMENT TO
CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT ("Fourth Amendment") dated as
of September 21, 1998 is by and among BALDWIN PIANO & ORGAN COMPANY, a Delaware
corporation, (hereinafter, together with its successors in title and assigns
called "Borrower" or "Baldwin"), THE FIFTH THIRD BANK, an Ohio banking
corporation, as Agent (in such capacity, the "Agent"), THE FIFTH THIRD BANK
("Fifth Third"), as a Lender, and NBD BANK, N.A., a national banking
association, ("NBD") as a Lender, (Fifth Third and NBD are hereinafter
collectively the "Lenders" and each individually a "Lender").
PRELIMINARY STATEMENT
WHEREAS, Borrower, Agent and Lenders have entered into a Credit
Agreement dated as of October 16, 1997, as amended by a First Amendment dated as
of October 16, 1997, a Second Amendment dated as of April 27, 1998, and a Third
Amendment dated June 19, 1998 (the "Credit Agreement"); and
WHEREAS, Borrower have requested Agent and Lenders to amend the Credit
Agreement as set forth herein; and
WHEREAS, Borrower, Agent and Lenders now wish to amend the Credit
Agreement in accordance with the terms and provisions hereof;
NOW, THEREFORE, the parties hereto agree to supplement and amend the
Credit Agreement upon such terms and conditions as follows:
1. CAPITALIZED TERMS. All capitalized terms used herein shall have the
meanings assigned to them in the Credit Agreement unless the context hereof
requires otherwise. Any definitions as capitalized terms set forth herein shall
be deemed incorporated into the Credit Agreement as amended by this Fourth
Amendment.
2. BORROWING BASE CERTIFICATE. During the period from the Fourth
Amendment Closing Date until December 15, 1998, Lenders hereby approve the 1998
Borrowing Base Certificate, attached as an Exhibit to this Fourth Amendment, as
the form of Borrowering Base Certificate in lieu of the form attached as Exhibit
C to the Credit Agreement.
3. ELIGIBLE ACCOUNTS AND ELIGIBLE INVENTORY. Section 3.2(a)(ii) of the
Credit Agreement is hereby amended to in its entirety to read as follows:
"(ii) ELIGIBLE INVENTORY. On receipt of each Borrowing Base
Certificate, Agent will credit Baldwin with the lesser of: (i)
seventy-five percent (75%) of the
<PAGE> 2
-2-
Value of Eligible Inventory which is, absent error or other
discrepancy, listed in such Borrowing Base Certificate, and (ii) Thirty
Five Million and 00/100 Dollars ($35,000,000.00) from the Fourth
Amendment Closing Date through December 15, 1998, and Thirty Million
Dollars and 00/100 Dollars ($30,000,000.00) after December 15, 1998.
4. REAFFIRMATION OF COVENANTS, WARRANTIES AND REPRESENTATIONS. Borrower
hereby agrees and covenants that all representations and warranties in the
Credit Agreement, including without limitation all of those warranties and
representations set forth in Article 9, are true and accurate as of the date
hereof. Borrower further reaffirms all covenants in the Credit Agreement, and
reaffirms each of the affirmative covenants set forth in Section 10.1, the
negative covenants set forth in Section 10.2 and the financial covenants set
forth in Section 10.3 thereof, as if fully set forth herein, except to the
extent modified by this Fourth Amendment.
5. CONDITIONS PRECEDENT TO CLOSING OF FOURTH AMENDMENT. On or prior to
the closing of the Fourth Amendment (hereinafter the "Fourth Amendment Closing
Date"), each of the following conditions precedent shall have been satisfied:
(a) LEGALITY OF TRANSACTIONS. No change in applicable law
shall have occurred as a consequence of which it shall have become and
continue to be unlawful (i) for Agent and each Lender to perform any of
its agreements or obligations under any of the Loan Documents, or (ii)
for Borrower to perform any of its agreements or obligations under any
of the Loan Documents.
(b) PERFORMANCE, ETC. Except as set forth herein, Borrower
shall have duly and properly performed, complied with and observed each
of its covenants, agreements and obligations contained in each of the
Loan Documents. Except as set forth herein, no event shall have
occurred on or prior to the Fourth Amendment Closing Date, and no
condition shall exist on the Fourth Amendment Closing Date, which
constitutes a Default or an Event of Default.
(c) CHANGES; NONE ADVERSE. Since the date of the most recent
balance sheets of Borrower delivered to Provident, no changes shall
have occurred in the assets, liabilities, financial condition,
business, operations or prospects of Borrower which, individually or in
the aggregate, are material to Borrower, and Provident shall have
completed such review of the status of all current and pending legal
issues as Agent shall deem necessary or appropriate.
6. MISCELLANEOUS. (a) Borrower shall reimburse Agent for all fees and
disbursements of legal counsel to Agent which shall have been incurred by Agent
in connection with the preparation, negotiation, review, execution and delivery
of this Fourth Amendment and the handling of any other matters incidental
hereto.
(b) All of the terms, conditions and provisions of the
Agreement not herein modified shall remain in full force and effect. In the
event a term, condition or provision of the
<PAGE> 3
-3-
Agreement conflicts with a term, condition or provision of this Fourth
Amendment, the latter shall govern.
(c) This Fourth Amendment shall be governed by and shall be
construed and interpreted in accordance with the laws of the State of Ohio.
(d) This Fourth Amendment shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
successors and assigns.
(e) This Fourth Amendment may be executed in several
counterparts, each of which shall constitute an original, but all which together
shall constitute one and the same agreement.
[Remainder of page intentionally left blank. Signature page follows.]
<PAGE> 4
-4-
IN WITNESS WHEREOF, this Fourth Amendment has been duly
executed and delivered by or on behalf of each of the parties as of the day and
in the year first above written.
BALDWIN PIANO & ORGAN
COMPANY, Borrower
By: /s/ Perry H. Schwartz
--------------------------------
Name: Perry H. Schwartz
-------------------------------
Title: EVP and CFO
------------------------------
THE FIFTH THIRD BANK, Agent
By: /s/ Robert C. Ries
--------------------------------
Name: Robert C. Ries
-------------------------------
Title: Vice President
------------------------------
THE FIFTH THIRD BANK, Lender
By: /s/ Robert C. Ries
--------------------------------
Name: Robert C. Ries
-------------------------------
Title: Vice President
------------------------------
NBD BANK, N. A., Lender
By: /s/ Edward C. Hathaway
--------------------------------
Name: Edward C. Hathaway
-------------------------------
Title: First Vice President
------------------------------
<PAGE> 5
-5-
FORM OF 1998 BORROWING BASE CERTIFICATE
---------------------------------------
<TABLE>
<CAPTION>
BALDWIN PIANO & ORGAN COMPANY Report #____________ Today's date_____
Accounts Reported as of ___
Inventory Reported as of ___
<S> <C> <C>
- - --------------------------------------------------------------------------------------------------------------------
I. ELIGIBLE ACCOUNT AVAILABILITY
- - --------------------------------------------------------------------------------------------------------------------
A. ELIGIBLE ACCOUNT AVAILABILITY
1. Accounts $______________
LESS:
2. Due greater than 60 Days from date of sale _____________
3. Contract Electronics unpaid greater than 90 Days
and others greater than 120 days
4. Entire Account, if 50% or more unpaid greater than
90 Days _____________
5. Affiliate Accounts _____________
6. Consignment Receivables greater than 120 Days _____________
7. Conditional _____________
8. Non U.S./Canada _____________
9. Non Reps & Warr. (per sec. 9.18 of Credit Agreement) _____________
10. Demonstration/Loan _____________
11. Progress/Barter/Contra _____________
12. Personal/family/household _____________
13. Agent Designated Accounts _____________
14. TOTAL INELIGIBLE (sum lines 2 through 13) (______________)
15. SUBTOTAL
16. LESS: ELIGIBLE ACCOUNT NET AVAILABILITY (______________)
(15% times Line 15)
17. TOTAL ELIGIBLE ACCOUNT $
AVAILABILITY ==============
(Line 15, Less Line 16)
18. TOTAL CREDIT FOR ELIGIBLE ACCOUNTS $_______________
(Lesser of Line 17, or $15,000,000)
- - --------------------------------------------------------------------------------------------------------------------
II. ELIGIBLE INVENTORY AVAILABILITY
- - --------------------------------------------------------------------------------------------------------------------
A.ELIGIBLE INVENTORY AVAILABILITY
19. INVENTORY (Wholesale Dealer Cost) ______________
LESS:
20. Work in Progress (______________)
21. Spare Parts/Shipping and Packaging Materials (______________)
22. Defective Inventory (______________)
23. Returned or repossessed (______________)
24. Non U.S./Canada (______________)
25. TOTAL INELIGIBLE INVENTORY: (______________)
(Sum of Lines 20 through 24)
26. SUBTOTAL
27. LESS: NET ELIGIBLE INVENTORY
(25% times Line 26) (______________)
28. TOTAL ELIGIBLE INVENTORY AVAILABILITY
(Line 26 minus Line 27)
29. TOTAL CREDIT FOR ELIGIBLE INVENTORY
(The Lesser of Line 28, or $35,000,000)
$_______________
- - --------------------------------------------------------------------------------------------------------------------
III. ELIGIBLE RAW MATERIALS AVAILABILITY
- - --------------------------------------------------------------------------------------------------------------------
The Sum of:
30. Value of Raw Materials/electronic (Baldwin's Cost)
31. Times 10% X .10 = $ ___________
32. PLUS: The Value of all other Raw Materials
(Baldwin's Cost)
33. Times 50% X .50 = + ___________
34. TOTAL
</TABLE>
<PAGE> 6
<TABLE>
<CAPTION>
-6-
35. Raw Materials Availability _________________
(Lesser of Line 34 or $5,000,000)
====================================================================================================================
36. TOTAL BORROWING BASE AVAILABILITY
(Sum of lines 18, 29 and 35) $_________________
====================================================================================================================
<S> <C> <C>
37. Lesser of Line 36 and 40,000,000.00 (or $44,000,000.00 _________________
as determined by the Credit Agreement)
38. LESS: Outstanding Standby Letters of Credit (_______________)
39. LESS: Outstanding Revolving Credit Balance (_______________)
====================================================================================================================
TOTAL AVAILABILITY TO BORROWERS
(Sum of Lines 37, 38 and 39) $_________________
====================================================================================================================
We certify that the foregoing report is true and correct.
BALDWIN PIANO & ORGAN COMPANY
-----------------------------
Name:
------------------------
Title:
-----------------------
</TABLE>
<PAGE> 1
Exhibit 10.2
OFFICE LEASE
THIS LEASE, made this 2nd day of July 1998, by and between DUKE REALTY LIMITED
PARTNERSHIP, an Indiana limited partnership ("Landlord"), and BALDWIN PIANO AND
ORGAN COMPANY, a Delaware corporation ("Tenant").
W I T N E S S E T H:
ARTICLE 1 - LEASE OF PREMISES
- - -----------------------------
SECTION 1.01. LEASE OF PREMISES. Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord, subject to all of the terms and conditions
hereinafter set forth, office space in the office building to be built described
below which is commonly known as 4680 Governor's Pointe in Warren County, Ohio
(the "Building") for the term hereinafter specified. The Building shall be a
class A office building containing approximately 125,919 rentable square feet
with a two-story atrium lobby. A rendering of the Building is set forth on
attached EXHIBIT A-1. The space in the Building hereby leased to Tenant is set
forth in Item A of the Basic Lease Provisions and is cross- hatched on EXHIBIT A
attached hereto (the "Leased Premises"). Landlord reserves the right to alter
any portion of the Building not included within the Leased Premises; provided,
however, Tenant's access to the Leased Premises shall not be materially
impaired. Elevators shall not be leased to Tenant and shall remain under
Landlord's control.
SECTION 1.02. BASIC LEASE PROVISIONS.
A. Building Address: 4680 Parkway Drive, Mason, Ohio 45040; Floor: 2nd;
Suite: 200;
B. Rentable Area: approximately 28,239 rentable square feet, which is
based upon 25,101 usable square feet;
Landlord shall use standards promulgated by the Building Owners and
Managers Association, consistently applied, in determining the usable
area of the Leased Premises and the rentable area of the Building. The
Rentable Area of the Leased Premises shall include the usable area
within the Leased Premises plus a pro rata portion of the area covered
by the Common Areas (as defined in Section 18.03 herein) within the
Building, which common area factor shall be 12.5%. Prior to the
Commencement Date, Tenant may have an architect verify the usable area
of the Leased Premises.
C. Building Expense Percentage: 22.43% (based upon 28,239 rentable square
feet in a Building containing 125,919 rentable square feet);
D. Minimum Annual Rent:
Year 1 $317,688.75 per year
Year 2 $325,595.64 per year
Year 3 $333,785.04 per year
Year 4 $342,256.68 per year
Year 5 $350,728.32 per year
Year 6 $359,482.44 per year
Year 7 $368,518.92 per year
Year 8 $377,837.76 per year
Year 9 $387,156.72 per year
Year 10 $395,910.72 per year;
<PAGE> 2
E. Monthly Rental Installments:
Months 1-12 $26,474.06 per month
Months 13-24 $27,132.97 per month
Months 25-36 $27,815.42 per month
Months 37-48 $28,521.39 per month
Months 49-60 $29,227.36 per month
Months 61-72 $29,956.87 per month
Months 73-84 $30,709.91 per month
Months 85-96 $31,486.48 per month
Months 97-108 $32,263.06 per month
Months 109-120 $32,992.56 per month;
F. Lease Term: Ten (10) years and zero (0) months;
G. Target Commencement Date: January 1, 1999;
H. Security Deposit: None;
I. Broker(s): Duke Realty Services Limited Partnership, representing
Landlord and Cincinnati Commercial Realtors representing Tenant;
J. Permitted Use: Display and demonstration and play of pianos, organs and
other musical instruments (subject to Section 5.02), general office
purposes and for no other purpose whatsoever;
K. Address for payments and notices as follows:
Landlord: Duke Realty Limited Partnership
4555 Lake Forest Drive, Suite 400
Cincinnati, OH 45242
With Rental
Payments to: Duke Realty Limited Partnership
P.O. Box 960664
Cincinnati, OH 45296-0664
Tenant
Prior to
the Commencement
Date: Baldwin Piano and Organ Company
422 Wards Corner Road
Loveland, OH 45140
After the
Commencement
Date: Baldwin Piano and Organ Company
4680 Parkway Drive, Suite 200
Mason, OH 45040
ARTICLE 2 - TERM AND POSSESSION
- - -------------------------------
SECTION 2.01. LEASE TERM. The term of this Lease shall be the period of time
specified in Item F of the Basic Lease Provisions ("Lease Term") and shall
commence on the earlier of sixty (60) days after (i) the date upon which
Landlord shall provide Tenant notice that the "Tenant Finish Improvements' as
defined in Section 2.02 are substantially completed, Landlord has obtained a
temporary occupancy permit permitting Tenant's occupancy of the Leased Premises
provided, however, that such date shall not be extended as a result of any
Tenant caused delays or change
- 2 -
<PAGE> 3
orders; or (ii) the date Tenant takes possession or commences use of the Leased
Premises. The date of commencement as defined above, hereinafter called the
"Commencement Date," and the "Expiration Date" shall be confirmed by Tenant as
provided in Section 2.03.
SECTION 2.02. CONSTRUCTION OF TENANT FINISH IMPROVEMENTS AND POSSESSION. Tenant
shall personally inspect the Leased Premises when completed and accept the same
"as-is' without representation or warranty by Landlord of any kind except as
specifically provided herein and with the understanding that Landlord shall have
no responsibility with respect thereto, except to construct in a good and
workmanlike manner using new materials, the base building improvements as set
forth on EXHIBIT B and the tenant finish improvements to be determined by Tenant
below a finished ceiling ("Tenant Finish Improvements") so the Leased Premises
will be available for Tenant's occupancy by the Early Occupancy Date as defined
in Section 20.14 hereof, unless prevented by force majeure events, as defined
below or Tenant caused delays ("Excusable Delays"). Landlord shall prepare the
base building improvements at its sole cost and expense. Landlord shall provide
an allowance for the direct costs of the Tenant Finish Improvements to the
Leased Premises in an amount up to Fifteen Dollars ($15.00) per rentable square
foot of the Leased Premises (the "Allowance"). The Allowance shall be used
exclusively to construct and pay for the Tenant Finish Improvements that are
directly related to the construction of the Leased Premises. Tenant shall
reimburse Landlord for any cost or expense attributable to the Tenant Finish
Improvements which exceed the Allowance, no later than thirty (30) days after
receipt of an invoice from Landlord for such costs or expenses or at Tenant's
request, Landlord shall amortize such increased costs over the term of the Lease
as set forth below. Landlord shall contract with Duke Construction Management,
Inc. ("Duke') to complete the Tenant Finish Improvements. As the general
contractor, Duke will competitively bid the sub-contractors who will be working
in the Leased Premises and obtain at least three (3) bids. Tenant shall have the
right to review and approve all bids for the Tenant Finish Improvements. Duke
shall receive a construction management fee equal to seven percent (7%) of the
sum of the subcontractor's contract prices and the general conditions,
representing the total construction cost, which amount shall be deducted from
the Allowance. The Tenant Finish Improvements may, at Tenant's option, include
the installation of a raised computer room floor from Tenant's current facility
or new floor, security systems, UPS system, Liebert systems, back-up generator,
design services and built-in reception area, as well as other tenant finishes.
From and after receipt of notice from Landlord or earlier with the consent of
Landlord and for a minimum of two (2) weeks prior to the Early occupancy Date,
Tenant shall have the right and privilege of going onto the Leased Premises to
complete interior decoration work and to prepare the Leased Premises for its
occupancy, provided, however, that its schedule in so doing shall be
communicated to Landlord and the approval of Landlord secured so as not to
interfere with other work of Landlord being carried on at the time; and provided
further that Landlord shall have no responsibility or liability whatsoever for
any loss or damage to any of Tenant's leasehold improvements, fixtures,
equipment or any other materials installed or left in the Leased Premises prior
to the Early Occupancy Date unless such damage shall be the result of the gross
negligence or willful misconduct of Landlord.
Landlord, at its sole cost and expense, shall pay for preliminary and final
space plans and final construction drawings for the Leased Premises, the costs
of such shall not be deducted from the Allowance.
Landlord shall also provide Tenant with up to One Dollar ($1.00) per rentable
square foot of the Leased Premises for moving expenses ("Moving Allowance"). The
Moving Allowance shall be paid by Landlord to Tenant within thirty (30) days
after the Early Occupancy Date.
Landlord shall further provide Tenant with One Dollar and Fifty Cents ($1.50)
per rentable square foot of the Leased Premises for voice/data cabling ("Cabling
Allowance"). The Cabling Allowance shall be paid by Landlord to Tenant within
thirty (30) days after the Early Occupancy Date.
Upon request of Tenant, Landlord shall amortize up to an additional $2.00 per
rentable square foot of the Leased Premises in the Minimum Annual Rent with a
nine percent (9%) amortization
-3-
<PAGE> 4
factor to accommodate any additional costs for tenant finish improvements and
moving. Tenant and Landlord shall enter into an amendment of this Lease to
adjust the Minimum Annual Rent and Monthly Rental Installments to reflect the
additional allowance amount.
Notwithstanding the above, provided Tenant approves in writing the final floor
plan by July 1, 1998, and Tenant approves in writing all costs for the Tenant
Finish Improvements on or before August 15, 1998, and Landlord receives all long
lead Tenant Finish Improvements specifically required by Tenant's designer and
architect, and the Leased Premises have not been delivered to Tenant on or
before November 1, 1998, completed with the Tenant Finish Improvements, subject
to punch list items and Excusable Delays, then Landlord shall provide Tenant one
(1) day's minimum annual rental abatement for each day of delay after November
1, 1998 to be credited to Tenant's rental obligation which will otherwise begin
to accrue after the actual Commencement Date. Such abatement shall be Tenant's
sole remedy for Landlord's failure to deliver the Leased Premises as set forth
above, and Tenant shall not be entitled to damages (consequential or otherwise)
as a result thereof.
Force majeure shall be any failure to perform or delay caused by fire,
earthquake, explosion, flood, hurricane, the elements, unusual weather
conditions, acts of God or the public enemy, action, restrictions, limitations,
or interference of governmental authorities or agents, war, invasion,
insurrection, rebellion, riots, strikes or lockouts shortages of labor or
materials or any other cause whether similar or dissimilar to the foregoing
which is beyond the reasonable control of Landlord and any such failure or delay
due to said causes or any of them shall not be deemed a breach of or default in
the performance of this Lease.
SECTION 2.03. TENANT'S ACCEPTANCE OF THE LEASED PREMISES. Upon delivery of
possession of the Leased Premises to Tenant as hereinbefore provided, Tenant and
Landlord shall execute a letter of understanding acknowledging (i) the
Commencement Date and Expiration Date of this Lease, and (ii) that Tenant has
accepted the Leased Premises for occupancy and that the condition of the Leased
Premises, including the Tenant Finish Improvements and the Building was at the
time satisfactory and in conformity with the provisions of this Lease in all
respects, except for any defects as to which Tenant shall give written notice to
Landlord within thirty (30) days after such delivery or latent defects. Landlord
shall promptly thereafter correct all such defects. Such letter of understanding
shall become a part of this Lease. If Tenant takes possession of and occupies
the Leased Premises, Tenant shall be deemed to have accepted the Leased Premises
in the manner described in this Section 2.03, even though the letter of
understanding provided for herein may not have been executed by Tenant.
SECTION 2.04. SURRENDER OF THE PREMISES. Upon the expiration or earlier
termination of this Lease, or upon the exercise by Landlord of its right to
re-enter the Leased Premises without terminating this Lease, Tenant shall
immediately surrender the Leased Premises to Landlord, together with all
alterations, improvements and other property as provided elsewhere herein, in
broom-clean condition and in good order, condition and repair (except for
ordinary wear and tear and damage which Tenant is not obligated to repair),
failing which Landlord may restore the Leased Premises to such condition at
Tenant's expense. Upon such expiration or termination, Tenant shall remove its
personal property, trade fixtures, voice data wiring and cabling and any of
Tenant's alterations designated to be removed by Landlord at the time of
Landlord's approval of such alterations. Any property remaining in the Leased
Premises after the expiration or termination of this Lease shall be deemed
abandoned and Landlord shall have the right to remove and dispose of such
property at Tenant's sole cost and expense. Tenant shall, at its expense,
promptly repair any damage caused by any such removal, and shall restore the
Leased Premises to the condition existing prior to the installation of the items
so removed.
SECTION 2.05. HOLDING OVER. If Tenant retains possession of the Leased Premises
after the expiration or earlier termination of this Lease, Tenant shall become a
tenant from month-to-month at one hundred twenty-five percent (125%) of the then
Minimum Annual Rent for the Leased Premises in effect upon the date of such
expiration or earlier termination (subject to adjustment as provided in Article
3 hereof and prorated on a daily basis), and otherwise upon the terms, covenants
and conditions herein specified, so far as applicable. Acceptance by Landlord
-4-
<PAGE> 5
of rent after such expiration or earlier termination shall not result in a
renewal of this Lease. Notwithstanding the foregoing provision, no holding over
by Tenant shall operate to extend this Lease, and Tenant shall vacate and
surrender the Leased Premises to Landlord upon Tenant being given thirty (30)
days prior written notice from Landlord to vacate. The foregoing , provisions of
this Section 2.05 are in addition to and do not affect Landlord's right of
re-entry or any other rights of Landlord hereunder or as otherwise provided by
law.
ARTICLE 3 - RENT
- - ----------------
SECTION 3.01. MINIMUM ANNUAL RENT. Tenant shall pay to Landlord as Minimum
Annual Rent for the Leased Premises the sum specified in Item D of the Basic
Lease Provisions, payable in equal consecutive Monthly Rental Installments as
specified in Item E of the Basic Lease Provisions, in advance, without deduction
or offset, on or before the first day of each and every calendar month during
the Lease Term; provided, however, that if the Commencement Date shall be a day
other than the first day of a calendar month or the Expiration Date shall be a
day other than the last day of a calendar month, the Monthly Rental Installment
for such first or last fractional month shall be prorated on the basis of the
number of days during the month this Lease was in effect in relation to the
total number of days in such month.
SECTION 3.02. ANNUAL RENTAL ADJUSTMENT.
A. DEFINITIONS. For purposes of this Section 3.02, the following
definitions shall apply:
1. "ANNUAL RENTAL ADJUSTMENT" - shall mean the amount of Tenant's
Proportionate Share of Operating Expenses for a particular
calendar year.
2. "OPERATING EXPENSES" - shall mean the amount of all of
Landlord's direct costs and expenses paid or incurred in
operating and maintaining the Building (including the Common
Areas as defined in Section 18.03) for a particular calendar
year as reasonably determined by Landlord in accordance with
generally accepted accounting principles, including all
reasonable additional direct costs and expenses of operation
and maintenance of the Building which Landlord reasonably
determines that it would have paid or incurred during such
year if the Building had been ninety- five percent (95%)
occupied, including by way of illustration and not limitation:
all general real estate taxes and all special assessments
levied against the Building or service payments made in lieu
thereof (hereinafter called "real estate taxes"), other than
penalties for late payment; costs and expenses of contesting
the validity or amount of real estate taxes; or service
payments made in lieu thereof; insurance premiums; water,
sewer, electrical and other utility charges other than the
separately billed electrical and other charges paid by Tenant
as provided in this Lease; elevators, the plumbing systems,
the electrical systems, and the heating, ventilation and air-
conditioning systems; cleaning and other janitorial services;
tools and supplies; repair costs; landscape maintenance costs;
access control services; license, permit and inspection fees;
management fees and/or administrative fees not to exceed four
percent (4%) of gross revenues; wages and related employee
benefits payable for the management, maintenance and operation
of the Building; amortization of capital improvements or
replacements for the Building amortized over the useful life
of such capital improvement that benefit the health and safety
of the tenants of the Building, produce a reduction in
operating costs or are required under any applicable
governmental law, ordinance, resolution, order or regulation,
together with interest at the rate of ten percent (10%) per
annum on the unamortized balance thereof; an annual addition,
equal to Ten Cents ($0.10) per square foot of the Building, to
a reserve for other capital improvements or replacements for
the Building; maintenance and repair costs, dues, fees and
assessments incurred under any documents of record or owner
association as described in those certain covenants filed in
Deed Book 1045, Page 276 of the Warren County Recorder's
Office (the "Covenants"); and in general all other costs and
expenses which would
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be regarded as operating and maintenance costs and expenses.
The foregoing list of Operating Expenses is for definitional
purposes only and shall not impose any obligations upon
Landlord to incur such expenses or provide such services.
Notwithstanding the foregoing, operating Expenses shall not
include the following:
a. Leasing commissions.
b. The cost of tenant finish improvements provided
solely for the benefit of other tenants or proposed
tenants in the Building.
c. Costs of correcting building code violations or the
payment of fines or citations in connection
therewith, which violations were in existence on the
Commencement Date.
d. Depreciation on the Building.
e. The cost of services separately charged to another
tenant in the Building.
f. Interest payments and financing costs associated with
Building financing.
g. Legal fees and other costs and expenses associated
with the preparation, interpretation and/or
enforcement of leases or other obligations of tenants
in the Building.
h. Except as otherwise expressly provided herein, the
cost of any repairs or replacements which under
generally accepted accounting principles are properly
classified as capital expenditures.
i. Repairs and replacements for which and to the extent
that Landlord has been reimbursed by insurance and/or
paid pursuant to warranties.
j. Advertising and promotional expenses.
k. Net recoveries from insurance policies taken out by
Landlord, to the extent that the proceeds reimburse
Landlord for expenses which have previously been
included or which would otherwise be included in
common area costs or expenses.
1. The cost of the land or the construction of the
Building, whether initially or in connection with any
replacement or expansion thereof, whether mandated by
law or otherwise, including, without limitation,
costs of correcting defective conditions in the
Building resulting from defects in or inadequacy of
the initial design or construction of the same.
m. The initial cost of the installation of the parking
areas, landscaping and/or other facilities or the
amortization or depreciation of that initial cost.
n. Any bad debt loss, rent loss, or reserves for bad
debt or rent loss.
o. The cost of providing or performing improvements,
work, repairs to or within any portion of the leased
premises of any other tenants or occupants in the
Building or to any other building which is not part
of the Common Areas to the extent such amounts are
directly billed to tenants.
p. Art work in the Building excluding the panels in the
lobby of the Building.
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q. Taxes on net income, stock, capital transfers or
successions unless such taxes replace real estate
taxes.
r. The costs incurred in connection with the clean-up or
removal of hazardous materials in the Building or
Common Areas prior to the Commencement Date.
s. The costs of repairing or restoring any portion of
the Building damaged or destroyed by any casualty or
peril whether insured or uninsurable above the amount
of any reasonable deductible.
3. "BUILDING EXPENSE PERCENTAGE" shall mean the percentage
specified in Item C of the Basic Lease Provisions. This
percentage was determined by dividing the Rentable Area in the
Leased Premises by the total rentable area in the Building.
Rentable Area excludes the elevators and elevator shafts,
which are reserved to Landlord.
4. "TENANT'S PROPORTIONATE SHARE OF OPERATING EXPENSES" shall be
an amount equal to the product of Tenant's Building Expense
Percentage as provided in Item C of the Basic Lease Provisions
times the Operating Expenses.
B. Payment Obligation. In addition to the Minimum Annual Rent specified in
this Lease, Tenant shall pay to Landlord as additional rent for the
Leased Premises the Annual Rental Adjustment for such calendar year.
1. Payment of Estimated Annual Rental Adjustment - The Annual
Rental Adjustment shall be estimated annually by Landlord, and
written notice thereof shall be given to Tenant at least
thirty (30) days prior to the beginning of each calendar year.
In the case of the calendar year in which the Lease Term
commences, written notice of the estimated Operating Expenses
shall be given Tenant prior to the Commencement Date. Tenant
shall pay to Landlord each month, at the same time the Monthly
Rental Installment is due, an amount equal to one-twelfth
(1/12) of the estimated Annual Rental Adjustment.
2. Increases in Estimated Annual Rental Adjustment - If real
estate taxes or the cost of utility or janitorial services
increase during a calendar year, Landlord may increase the
estimated Annual Rental Adjustment during such year by giving
Tenant written notice to that effect, and thereafter Tenant
shall pay to Landlord, in each of the remaining months of such
year, an amount equal to the amount of such increase in the
estimated Annual Rental Adjustment divided by the number of
months remaining in such year.
3. Adjustment to Actual Annual Rental Adjustment - Within ninety
(90) days after the end of each calendar year, Landlord shall
prepare and deliver to Tenant a statement showing the actual
Annual Rental Adjustment. Within thirty (30) days after
receipt of the aforementioned statement, Tenant shall pay to
Landlord, or Landlord shall credit against the next rent
payment or payments due from Tenant, as the case may be, the
difference between the actual Annual Rental Adjustment for the
preceding calendar year and the estimated amount paid by
Tenant during such year. If this Lease shall commence, expire
or be terminated on any date other than the last day of a
calendar year, then the Annual Rental Adjustment for such
partial calendar year shall be prorated on the basis of the
number of days during the year this Lease was in effect in
relation to the total number of days in such year.
4. Tenant Verification - Tenant or its designated certified
public accountant shall have the right to inspect, at
reasonable times and in a reasonable manner, during the one
hundred eighty (180) day period following the delivery of
Landlord's
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<PAGE> 8
statement of the actual amount of the Annual Rental
Adjustment, such of Landlord's books of account and records as
pertain to and contain information concerning such costs and
expenses in order to verify the amounts thereof. Tenant's
failure to exercise its rights hereunder within said one
hundred eighty (180) day period shall be deemed a waiver of
its right to inspect or contest the method, accuracy or amount
of the Annual Rental Adjustment.
In the event of any undisputed error, Landlord shall make a
correcting payment in full to Tenant within thirty (30) days
after the determination of the amount of such error. In the
event of any errors on the part of Landlord which Landlord
agrees were errors in excess of five percent (5%) of Tenant's
actual operating expense liability for any calendar year,
Landlord will also reimburse Tenant for all costs of an audit
reasonably incurred by Tenant within the above thirty (30) day
period. If within the period aforesaid, Tenant provides
Landlord with its notice disputing the correctness of the
statement, and if such dispute shall have not been settled by
agreement, Tenant may submit the dispute to a reputable firm
of independent certified public accountants selected by Tenant
and approved by Landlord, such approval shall not be
unreasonably withheld or delayed, and the decision of such
accountants shall be conclusive and binding upon the parties.
If such accountant decides that there was an error, Landlord
will make correcting payment. The fees and expenses involved
in such decision shall be borne by the unsuccessful party.
C. Net Lease. This Lease is what is commonly called a "net lease," it
being understood that Tenant shall be responsible for, and shall bear
its proportionate share of all costs associated with, the operation and
maintenance of the Building and the Leased Premises.
D. Maximum Increase in Operating Expenses. Notwithstanding anything in
this Lease to the contrary, Tenant's Proportionate Share of Operating
Expenses for calendar year 1999 shall not exceed Six Dollars and
Twenty-five Cents ($6.25) per rentable square foot per year. Tenant's
Proportionate Share of Operating Expenses for calendar year 2000 shall
not exceed Six Dollars and Fifty Cents ($6.50) per rentable square foot
per year. Thereafter, Tenant will be responsible for Tenant's
Proportionate Share of real estate taxes, including the reasonable
costs and expenses of contesting the validity or amount of real estate
taxes; services payments in lieu of real estate taxes, insurance
premiums; utilities, snow removal and management or administrative fees
applicable to such expenses ("Uncontrollable Expenses'), without regard
to the level of increase in any or all of the above in any year or
other period of time. Tenant shall receive its proportionate share of
the benefit of any abatement or the failure to assess the Building for
real estate tax purposes. Tenant's obligation to pay all other Building
Operating Expenses which are not Uncontrollable Expenses (herein
'Controllable Expenses") shall be limited each year to a five percent
(5%) per annum increase over the amount the Controllable Expenses for
the immediately preceding calendar year would have been had the
Controllable Expenses increased at the rate of five percent (5%) in all
previous calendar years beginning with the actual Controllable Expenses
for the year ending December 31, 2000.
ARTICLE 4 - SECURITY DEPOSIT [Intentionally Omitted]
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ARTICLE 5 - OCCUPANCY AND USE
- - -----------------------------
SECTION 5.01. OCCUPANCY. Tenant shall use and occupy the Leased Premises for the
purposes set forth in Item J of the Basic Lease Provisions and shall not use the
Leased Premises for any other purpose whatsoever. Landlord acknowledges that
Tenant's use shall require the moving of pianos in and out of the Building which
may be accomplished by removing the roof of an elevator, removing railing and
panels, as well as having a lift in and out of the lobby of the Building. Tenant
agrees to coordinate such movement of pianos with Landlord, to pay the
reasonable costs associated with moving such pianos and to be responsible for
any damage
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caused by the moving of such pianos, and Landlord agrees to cooperate with and
facilitate such moves.
SECTION 5.02. COVENANTS OF TENANT REGARDING USE. In connection with its use of
the Leased Premises, Tenant agrees to do the following:
A. Tenant shall (i) use and maintain the Leased Premises and conduct its
business thereon in a safe, careful, reputable and lawful manner, (ii)
comply with the Covenants, if any, and all laws, rules, regulations,
orders, ordinances, directions and requirements of any governmental
authority or agency, now in force or which may hereafter be in force,
including without limitation those which shall impose upon Landlord or
Tenant any duty with respect to or triggered by a change in the use or
occupation of, or any improvement or alteration to, the Leased
Premises, (iii) comply with and obey all reasonable directions of the
Landlord, including the Building Rules and Regulations attached hereto
as EXHIBIT C and as may be modified from time to time by Landlord on
reasonable notice to Tenant, and (iv) shall not do or permit anything
to be done in or about the Leased Premises which will in any way
obstruct or interfere with the rights of other tenants or occupants of
the Building or injure or annoy them. Tenant and Landlord acknowledge
that Tenant's use of the Leased Premises includes the demonstration and
playing of pianos, organs and other musical instruments. Tenant agrees
to demonstrate and play such pianos, organs and musical instruments at
volumes which will not unreasonably interfere with other tenants in the
Building. If Landlord reasonably determines based upon reasonable
complaints by other tenants that such use does disturb such tenants,
Tenant shall cease such use or shall have Landlord construct at
Tenant's sole cost and expense a sound-proof room where such pianos,
organs and musical instruments may be played. Landlord shall not be
responsible to Tenant for the non-performance by any other tenant or
occupant of the Building of any of the Building Rules and Regulations,
but agrees to take reasonable measures to assure such other tenant's
compliance. The terms of this Lease shall govern any inconsistencies
between this Lease and the Rules and Regulations.
B. Tenant shall not overload the floors of the Leased Premises beyond
their designed weight- bearing capacity of eighty (80) pounds per
square foot live load and twenty (20) pounds per square foot partition
load. Landlord reserves the right to direct the positioning of all
heavy equipment, furniture and fixtures which Tenant desires to place
in the Leased Premises so as to distribute properly the weight thereof,
and to require the removal of any equipment or furniture which exceeds
the weight limit specified herein.
C. Tenant shall not use the Leased Premises, or allow the Leased Premises
to be used, for any purpose or in any manner which would, in Landlord's
opinion, invalidate any policy of insurance now or hereafter carried on
the Building or increase the rate of premiums payable on any such
insurance policy. Should Tenant fail to comply with this covenant,
Landlord may, at its option, require Tenant to stop engaging in such
activity or to reimburse Landlord as additional rent for any increase
in premiums charged on the insurance carried by Landlord on the Leased
Premises and attributable to the use being made of the Leased Premises
by Tenant.
D. Tenant shall not inscribe, paint, affix or display any signs,
advertisements or notices on the Building, except for such tenant
identification information as Landlord permits to be included or shown
on the directory board in the main lobby and on or adjacent to the
access door or doors to the Leased Premises and except for Building
signage otherwise permitted hereunder.
SECTION 5.03. LANDLORD'S RIGHTS REGARDING USE. In addition to the rights
specified elsewhere in this Lease, Landlord shall have the following rights
regarding the use of the Leased Premises or the Common Areas by Tenant, its
employees, agents, customers and invitees, each of which may be exercised
without notice or liability to Tenant:
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<PAGE> 10
A. Landlord may install such signs, advertisements or notices or tenant
identification information on the directory board or tenant access
doors as it shall deem necessary or proper.
B. Landlord shall approve or disapprove, prior to installation, all types
of drapes, shades and other window coverings used in the Leased
Premises, and may control all internal lighting that may be visible
from outside the Leased Premises.
C. Landlord shall approve or disapprove, not to be unreasonably withheld,
all sign painting and lettering for signage and vending machine vendors
used or consumed on the Leased Premises and the Building, including the
suppliers thereof. Tenant may decorate the Leased Premises during
holiday periods, including holiday lighting which is not visible from
the exterior of the Leased Premises, provided all such decorations are
in compliance with all governmental codes and ordinances.
D. Landlord may control the Common Areas in such manner as it deems
necessary or proper, including by way of illustration and not
limitation, requiring all persons entering or leaving the Building to
identify themselves and their business in the Building to a security
guard; excluding or expelling any peddler, solicitor or loud or unruly
person from the Building; and closing or limiting access to the
Building or any part thereof, including entrances, corridors, doors,
and elevators, during times of emergency, repairs or after regular
business hours.
SECTION 5.04. ACCESS TO AND INSPECTION OF THE LEASED PREMISES. Tenant shall have
twenty-four (24) hours a day access to the Leased Premises. Landlord, its
employees and agents and any mortgagee of the Building shall have the right to
enter any part of the Leased Premises at reasonable times with reasonable prior
notice, except in the event of an emergency where no notice shall be required,
for the purposes of examining or inspecting the same, showing the same to
prospective purchasers, mortgagees or tenants and making such repairs,
alterations or improvements to the Leased Premises or the Building as Landlord
may deem necessary or desirable. If representatives of Tenant shall not be
present to open and permit such entry into the Leased Premises at any time when
such entry is necessary or permitted hereunder, Landlord and its employees and
agents may enter the Leased Premises by means of a master or pass key or
otherwise. Landlord shall incur no liability to Tenant except for Landlord's
gross negligence or willful misconduct for such entry, nor shall such entry
constitute an eviction of Tenant or a termination of this Lease, or entitle
Tenant to any abatement of rent therefor.
ARTICLE 6 - UTILITIES AND OTHER BUILDING SERVICES
- - -------------------------------------------------
SECTION 6.01. SERVICES TO BE PROVIDED. Provided Tenant is not in default,
Landlord shall furnish to Tenant, except as noted below, the following utilities
and other building services to the extent reasonably necessary for Tenant's
comfortable use and occupancy of the Leased Premises for general office use or
as may be required by law or directed by governmental authority:
A. Heating, ventilation and air-conditioning twenty-four (24) hours a day
except for shut downs due to normal maintenance and repairs which are
not frequent, repetitive or excessive;
B. At all times Tenant's use of electric current shall never exceed the
capacity of the feeders to the Building or the risers or wiring
installation, which shall be 2.5 volt-amps per square foot for
fluorescent lighting, 0.5 volt-amps for incandescent lighting and 3.0
volt-amps per square foot for receptacles and miscellaneous electric;
C. Water in the Common Areas for lavatory and drinking purposes;
D. Automatic elevator service;
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<PAGE> 11
E. Cleaning and janitorial service, including the supplying and installing
of paper towels, toilet tissue and soap in the Common Areas and Leased
Premises on Monday through Friday of each week except legal holidays in
accordance with the specifications set forth on EXHIBIT G attached
hereto and incorporated herein; provided, however, Tenant shall be
responsible for carpet cleaning other than routine vacuuming;
F. Washing of windows at intervals reasonably established by Landlord with
a minimum of two (2) times per year for exterior windows and two (2)
times per year for interior windows;
G. Replacement of all lamps, bulbs, starters and ballasts in Building
standard lighting (Landlord's standard tenant finish improvements being
described in EXHIBIT B) as required from time to time as a result of
normal usage;
H. Cleaning and maintenance of the Common Areas, including the removal of
rubbish and snow;
I. Repair and maintenance to the extent specified elsewhere in this Lease;
and
J. Card key security system in the Building.
SECTION 6.02. ADDITIONAL SERVICES. If Tenant requests any other utilities or
building services in addition to those identified above or any of the above
utilities or building services in frequency, scope, quality or quantity
substantially greater than those which are normally provided in Class A office
buildings for general office use, then Landlord shall use reasonable efforts to
attempt to furnish Tenant with such additional utilities or building services.
In the event Landlord is able to and does furnish such additional utilities or
building services, the costs thereof shall be borne by Tenant, who shall
reimburse Landlord monthly for the same as additional rent at the same time
Monthly Rental Installments and other additional rent is due.
If any lights, machines, changes in density of staff or equipment (including but
not limited to computers) used by Tenant in the Leased Premises materially
affect the temperature otherwise maintained by the Building's air-conditioning
system or generate substantially more heat in the Leased Premises than that
which would normally be generated by the lights and business machines typically
used by other tenants in the Building or by tenants in comparable office
buildings, then Landlord shall have the right to install any machinery or
equipment which Landlord considers reasonably necessary in order to restore the
temperature balance between the Leased Premises and the rest of the Building,
including equipment which modifies the Building's air-conditioning system. All
costs expended by Landlord to install any such machinery and equipment and any
additional costs of operation and maintenance occasioned thereby shall be borne
by Tenant, who shall reimburse Landlord for the same as provided in this Section
6.02.
Tenant shall not install or connect any electrical equipment other than the
business machines and equipment typically used for general office purposes by
tenants in office buildings comparable to the Building (including personal
computers and a main frame computer) without Landlord's prior written consent.
Tenant shall be responsible for the costs to install any HVAC above the base
Building standard HVAC to accommodate Tenant's computer room. If Landlord
determines that the electricity used by the equipment to be so installed or
connected exceeds the designed load capacity of the Building's electrical system
or is in any way incompatible therewith, then Landlord shall have the right, as
a condition to granting its consent, to make such modifications to the
electrical system or other parts of the Building or Leased Premises, or to
require Tenant to make such modifications to the equipment to be installed or
connected, as Landlord considers to be reasonably necessary before such
equipment may be so installed or connected. The cost of any such modifications
shall be borne by Tenant, who shall reimburse Landlord for the same (or any
portion thereof paid by Landlord) as provided in this Section 6.02.
SECTION 6.03. INTERRUPTION OF SERVICES. Tenant understands, acknowledges and
agrees that any one or more of the utilities or other building services
identified in Section 6.01 may be
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interrupted by reason of accident, emergency or other causes beyond Landlord's
control, or may be discontinued or diminished temporarily by Landlord or other
persons until certain repairs, alterations or improvements can be made; that
Landlord does not represent or warrant the uninterrupted availability of such
utilities or building services, and that any such interruption shall not be
deemed an eviction or disturbance of Tenant's right to possession, occupancy and
use of the Leased Premises or any part thereof, or render Landlord liable to
Tenant for damages by abatement of rent or otherwise, or relieve Tenant or
Landlord from the obligation to perform its covenants under this Lease.
Notwithstanding the foregoing, if (i) the restoration of service is entirely
within Landlord's control, (ii) Landlord negligently fails to restore such
service within a reasonable time, and (iii) the Leased Premises are therefore
untenantable (meaning that Tenant is unable to use such space in the normal
course of its business for the use permitted under this Lease for more than
seven (7) consecutive business days, then Tenant shall notify Landlord (and
Landlord's lender, if any) in writing that Tenant intends to abate rent. If
service has not been restored within five (5) business days of Landlord's
receipt of Tenant's notice, then Minimum Annual Rent shall abate on a per diem
basis for each day after such seven (7) day period during which the Leased
Premises remain untenantable. Such abatement shall be Tenant's sole remedy
(excluding Tenant's right to sue for constructive eviction) for Landlord's
failure to restore service as set forth above, and Tenant shall not be entitled
to damages (consequential or otherwise) as a result thereof.
ARTICLE 7 - REPAIRS, MAINTENANCE, ALTERATIONS, IMPROVEMENTS AND
- - ---------------------------------------------------------------
FIXTURES
- - --------
SECTION 7.01. REPAIR AND MAINTENANCE OF BUILDING. Subject to Section 7.02 and
except for any repairs made necessary by the negligence, misuse, or default of
Tenant, its employees, agents, customers and invitees, Landlord shall make all
necessary repairs to the roof (to be kept free of leaks), foundations,
structure, exterior walls, exterior doors, windows, corridors and other Common
Areas of the Building, and Landlord shall keep the Building in a safe, clean and
neat condition and use reasonable efforts to keep all equipment used in common
with, other tenants, such as elevators, plumbing, heating, air conditioning and
similar equipment, in good condition and repair. Except as provided in Article
6, Article 8 and Article 10 hereof, there shall be no abatement of rent and no
liability of Landlord by reason of any injury to or interference with Tenant's
business arising from the making of any repairs, alterations or improvements in
or to any portion of the Building or the Leased Premises or in or to any
fixtures, appurtenances and equipment therein or thereon.
SECTION 7.02. REPAIR AND MAINTENANCE OF LEASED PREMISES. Landlord shall keep and
maintain the Leased Premises in good order, condition and repair. Except for
ordinary wear and tear, damage caused by Landlord, its agents or contractors and
damage which Tenant is not obligated to repair as provided elsewhere in this
Lease, the cost of all repairs and maintenance to the Leased Premises shall be
borne by Tenant, who shall be separately billed and shall reimburse Landlord for
the same as additional rent, or as a part of Operating Expenses. Tenant shall be
allowed to make minor repairs and maintenance to the Leased Premises, provided
such maintenance and repairs do not exceed Two Thousand Dollars ($2,000.00),
they do not affect the structure of the Building or the Building systems, Tenant
has provided Landlord with prior notice of such repairs and maintenance and such
repairs and maintenance are done in a good and workmanlike manner.
SECTION 7.03. ALTERATIONS OR IMPROVEMENTS. Tenant shall not make or permit
alterations of or upon any part of the Leased Premises or additions to the
Leased Premises without first obtaining the written consent of Landlord, which
consent shall not be unreasonably withheld. Landlord's consent shall not be
required for non-structural alterations costing less than Fifteen Thousand
Dollars ($15,000.00), so long as the alterations do not affect the Building
systems, Tenant uses contractors approved by Landlord, which approval shall not
be unreasonably withheld, Tenant provides Landlord with "as-built" drawings for
any modifications and Tenant notifies Landlord prior to making such alterations.
As a condition of such approval, Landlord may require Tenant
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to remove the alterations and restore the Leased Premises upon termination of
this Lease, Tenant shall at its sole expense and cost, ensure that all permitted
alterations and additions which are made or necessitated thereby (whether inside
or outside the Leased Premises) shall be made in accordance with all applicable
laws, rules, codes, ordinances and regulations in a good and workmanlike manner
and in quality equal to or better than the original construction of the Leased
Premises or Building, and Tenant shall comply with such requirements as Landlord
considers necessary or desirable. Landlord's consent to any such alterations or
additions shall create no responsibility or liability on the part of Landlord
for the completeness, design, sufficiency, or compliance with laws, rules,
codes, ordinances, or regulations of such alterations or additions or the plans,
specifications or working drawings therefor. Tenant shall promptly pay all costs
attributable to such alterations and additions and shall promptly repair any
damage to the Leased Premises, Building or Common Areas caused by or resulting
from such alterations and additions. only such alterations and additions paid
for by Landlord or out of the Allowance shall remain for the benefit of
Landlord, provided, however, that Landlord may elect by written notice to Tenant
to require that Tenant, at its expense, remove at the expiration or earlier
termination of this Lease all or a portion of the alterations or additions made
by Tenant and repair any damage caused by such removal. Tenant's obligations
under this Section shall survive the expiration or earlier termination of this
Lease.
Tenant shall indemnify and save harmless Landlord from all costs, loss or
expense in connection with any construction or installation. No person shall be
entitled to any lien directly or indirectly derived through or under Tenant or
through or by virtue of any act or omission of Tenant upon the Leased Premises
for any improvements or fixtures made thereon or installed therein or for or on
account of any labor or material furnished to the Leased Premises or for or on
account of any matter or thing whatsoever; and nothing in this Lease contained
shall be construed to constitute a consent by Landlord to the creation of any
lien. In the event any lien is filed against the Leased Premises, or any part
thereof, for work claimed to have been done for or material claimed to have been
furnished to Tenant, Tenant shall cause such lien to be bonded over or
discharged of record within thirty (30) days after filing in accordance with the
provisions of Article 11 hereof. Tenant shall indemnify and save harmless
Landlord from all costs, losses, expenses, and attorneys' fees in connection
with any such lien.
SECTION 7.04. TRADE FIXTURES. Any trade fixtures installed on the Leased
Premises by Tenant at its own expense, such as movable partitions, counters,
shelving, showcases, mirrors and the like, may, and, at the request of Landlord,
shall be removed on the expiration or earlier termination of this Lease,
provided that Tenant is not then in default, that Tenant bears the cost of such
removal, and further that Tenant repairs at its own expense any and all damage
to the Leased Premises resulting from such removal. If Tenant fails to remove
any and all such trade fixtures from the Leased Premises on the expiration or
earlier termination of this Lease, all such trade fixtures shall become the
property of Landlord unless Landlord elects to require their removal, in which
case Tenant shall, at its expense, promptly remove the same and restore the
Leased Premises to their prior condition.
ARTICLE 8 - FIRE OR OTHER CASUALTY; CASUALTY INSURANCE
- - ------------------------------------------------------
SECTION 8.01. SUBSTANTIAL DESTRUCTION OF THE BUILDING OR THE LEASED PREMISES. If
either the Building or the Leased Premises should be substantially destroyed or
damaged (which as used herein, means destruction or material damage to at least
50% of the Building or the Leased Premises) by fire or other casualty insured
under the fire and extended coverage insurance provided by Landlord in
accordance with Section 8.03 hereof, then Landlord or Tenant may, at its option,
terminate this Lease by giving written notice of such termination to the other
party within thirty (30) days after the date of such casualty. In such event,
rent shall be apportioned to and shall cease as of the date of such casualty. if
neither party exercises this option, then the Leased Premises shall be
reconstructed and restored, at Landlord's expense, to substantially the same
condition as they were prior to the casualty; provided however, that Landlord's
obligation hereunder shall be limited to the reconstruction of the base building
improvements in accordance with EXHIBIT B and such of the Tenant Finish
Improvements as were originally required to be made by Landlord at Landlord's
cost; and further provided that if Tenant has made any
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additional improvements pursuant to Section 7.03, Tenant shall reimburse
Landlord for the cost of reconstructing the same. In the event of such
reconstruction, rent shall be abated from the date of the casualty until
substantial completion of the reconstruction repairs; and this Lease shall
continue in full force and effect for the balance of the Lease Term.
Notwithstanding anything contained herein to the contrary, in the event Landlord
does not elect to terminate the Lease hereunder, Landlord shall use commercially
reasonable efforts to complete such restoration within two hundred forty (240)
days from the date of casualty and, if the Leased Premises remain untenantable
for the use permitted hereunder after such two hundred forty (240) day period,
Tenant shall have the right to terminate this Lease upon ten (10) days prior
written notice to Landlord given by Tenant within ten (10) days after the
expiration of the two hundred forty (240) day period.
SECTION 8.02. PARTIAL DESTRUCTION OF THE LEASED PREMISES. If the Leased Premises
should be damaged by fire or other casualty insured under the fire and extended
coverage insurance provided by Landlord in accordance with Section 8.03 hereof,
but not substantially destroyed or damaged to the extent provided in Section
8.01, then such damaged part of the Leased Premises shall be reconstructed and
restored, at Landlord's expense, to substantially the same condition as it was
prior to the casualty; provided however, that Landlord's obligation hereunder
shall be limited to the reconstruction of the base building improvements in
accordance with EXHIBIT B and such of the Tenant Finish Improvements as were
originally required to be made by Landlord at Landlord's cost; and further
provided that if Tenant has made any additional improvements pursuant to Section
7.03, Tenant shall reimburse Landlord for the cost of reconstructing the same.
In such event, if the damage is expected to prevent Tenant from carrying on its
business in the Leased Premises, rent shall be abated in the proportion which
the approximate area of the damaged part bears to the total area in the Leased
Premises from the date of the casualty until substantial completion of the
reconstruction repairs; and this Lease shall continue in full force and effect
for the balance of the Lease Term. Landlord shall use reasonable diligence in
completing such reconstruction repairs, but in the event Landlord fails to
complete the same within one hundred eighty (180) days from the date of the
casualty, Tenant may, at its option, terminate this Lease by giving Landlord
written notice of such termination, whereupon both parties shall be released
from all further obligations and liability hereunder.
SECTION 8.03. CASUALTY INSURANCE. Landlord shall at all times during the Lease
Term carry at its own expense, a policy of insurance which insures the Building,
including the Leased Premises, against loss or damage by fire or other casualty
(namely, the perils against which insurance is afforded by a standard fire
insurance policy and extended coverage endorsement); provided, however, that
Landlord shall not be responsible for, and shall not be obligated to insure
against, any loss of or damage to any personal property of Tenant or which
Tenant may have in the Building or the Leased Premises or any trade fixtures
installed by or paid for by Tenant on the Leased Premises or any additional
improvements which Tenant may construct on the Leased Premises, and Landlord
shall not be liable for any loss or damage to such property, regardless of
cause, including the negligence of Landlord or its employees, agents, customers
and invitees. If the Tenant Finish Improvements installed by Landlord or Tenant
which are in excess of the Building standard tenant finish improvements or any
alterations or improvements made by Tenant pursuant to Section 7.03 result in an
increase in the premiums charged during the Lease Term on the casualty insurance
carried by Landlord on the Building, then the cost of such increase in insurance
premiums shall be borne by Tenant, who shall reimburse Landlord for the same as
additional rent after being separately billed therefor.
SECTION 8.04. WAIVER OF CLAIMS AND SUBROGATION. Landlord and Tenant hereby
release each other's employees, agents, customers and invitees from any and all
liability for any loss of or damage or injury to person or property occurring
in, on or about or to the Leased Premises, the Building or personal property
within the Building by reason of fire or other casualty or any other risk which
is or which is required to be insured against under this Lease, regardless of
cause, including the negligence of Landlord or Tenant and their respective
employees, agents, customers and invitees, and agree that all insurance carried
by either of them shall contain a clause whereby the insurer waives its right of
subrogation against the other party. Because the provisions of this Section 8.04
are intended to preclude the assignment of any claim mentioned
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<PAGE> 15
herein by way of subrogation or otherwise to an insurer or any other person,
each party to this Lease shall give to each insurance company which has issued
to it one or more policies of fire and extended coverage insurance notice of the
provisions of this Section 8.04 and have such insurance policies properly
endorsed, if necessary, to prevent the invalidation of such insurance by reason
of the provisions of this Section 8.04.
ARTICLE 9 - GENERAL PUBLIC LIABILITY, INDEMNIFICATION AND
- - ---------------------------------------------------------
INSURANCE
- - ---------
SECTION 9.01. TENANT'S RESPONSIBILITY. Tenant shall assume the risk of, be
responsible for, have the obligation to insure against, and indemnify Landlord
and hold it harmless from any and all liability for any loss of or damage or
injury to any person (including death resulting therefrom) or property occurring
in, on or about the Leased Premises, regardless of cause, except for any loss or
damage from fire or other casualty as provided in Section 8.03 and except for
that caused by the negligence of Landlord or its employees, agents, customers
and invitees; and Tenant hereby releases Landlord from any and all liability for
the same. Tenant's obligation to indemnify Landlord hereunder shall include the
duty to defend against any claims asserted by reason of such loss, damage or
injury and to pay any judgments, settlements, costs, fees and expenses,
including attorneys' fees, incurred in connection therewith. Notwithstanding
anything herein to the contrary, Tenant shall bear the risk of any loss or
damage to its property as provided in Section 8.03.
SECTION 9.02. TENANT'S INSURANCE. Tenant, in order to enable it to meet its
obligation to insure against the liabilities specified in this Lease, shall at
all times during the Lease Term carry, at its own expense, one or more policies
of general public liability and property damage insurance, issued by one or more
insurance companies acceptable to Landlord, with the following minimum
coverages:
A. Worker's Compensation - minimum statutory coverage
B. Comprehensive General - Not less than $2,000,000
Liability Insurance, Combined Single Limit
including Blanket, Con- for both bodily injury
tractual Liability, and property damage.
Broad Form Property
Damage, Personal Injury,
Completed Operations,
Products Liability,
Fire Damage.
C. Fire and Extended Coverage, Vandalism and Malicious Mischief, and
Sprinkler Leakage insurance, for the full cost of replacement of
Tenant's property.
Such insurance policy or policies shall protect Tenant and Landlord as their
interests may appear, naming Landlord and Landlord's managing agent and
mortgagee (to the extent Landlord has provided in writing Tenant with the names
and addresses of such) as additional insureds and shall provide that they may
not be cancelled on less than thirty (30) days prior written notice to Landlord.
Tenant shall furnish Landlord with Certificates of Insurance evidencing such
coverage. Should Tenant fail to carry such insurance and furnish Landlord with
such Certificates of Insurance after a request to do so, Landlord shall have the
right to obtain such insurance and collect the cost thereof from Tenant as
additional rent.
SECTION 9.03. LANDLORD'S RESPONSIBILITY. Landlord shall assume the risk of, be
responsible for, have the obligation to insure against, and indemnify Tenant and
hold it harmless from, any and all liability for any loss of or damage or injury
to person (including death resulting therefrom) or property (other than Tenant's
property as provided in Section 8.03) occurring in, on or about the Common
Areas, regardless of cause, except for that caused by the negligence of Tenant
or its employees, agents, customers and invitees; and Landlord hereby releases
Tenant from any and all
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liability for the same. Landlord's obligation to indemnify Tenant hereunder
shall include the duty to defend against any claims asserted by reason of such
loss, damage or injury and to pay any judgments, settlements, costs, fees and
expenses, including attorneys' fees, incurred in connection therewith.
ARTICLE 10 - EMINENT DOMAIN
- - ---------------------------
If the whole or any part of the Leased Premises shall be taken for public or
quasi-public use by a governmental or other authority having the power of
eminent domain or shall be conveyed to such authority in lieu of such taking,
and if such taking or conveyance shall cause the remaining part of the Leased
Premises to be untenantable and inadequate for use by Tenant for the purpose for
which they were leased, then either Landlord or Tenant may, at their respective
option, terminate this Lease as of the date Tenant is required to surrender
possession of the Leased Premises by giving written notice of such termination
to the other party. If a part of the Leased Premises shall be taken or conveyed
but the remaining part is tenantable and adequate for Tenant's use, then this
Lease shall be terminated as to the part taken or conveyed as of the date Tenant
surrenders possession; Landlord shall make such repairs, alterations and
improvements as may be necessary to render the part not taken or conveyed
tenantable to the extent the condemnation award proceeds received by Landlord
are sufficient therefor; and the rent shall be reduced in proportion to the part
of the Leased Premises so taken or conveyed. All compensation awarded for such
taking or conveyance shall be the property of Landlord without any deduction
therefrom for any present or future estate of Tenant, and Tenant hereby assigns
to Landlord all its right, title and interest in and to any such award. However,
Tenant shall have the right to recover from such authority, but not from
Landlord, such compensation as may be awarded to Tenant on account of moving and
relocation expenses and depreciation to and removal of Tenant's property or
compensation for any improvements paid by Tenant.
ARTICLE 11 - LIENS
- - ------------------
If, because of any act or omission of Tenant or any person claiming by, through,
or under Tenant, any mechanic's lien or other lien shall be filed against the
Leased Premises or the Building or against other property of Landlord (whether
or not such lien is valid or enforceable as such), Tenant shall, at its own
expense, cause the same to be discharged of record within thirty (30) days after
the date of filing thereof, and shall also indemnify Landlord and hold it
harmless from any and all claims, losses, damages, judgments, settlements, costs
and expenses, including attorneys' fees, resulting therefrom or by reason
thereof. Landlord may, but shall not be obligated to, pay the claim upon which
such lien is based so as to have such lien released of record; and, if Landlord
does so, then Tenant shall pay to Landlord, as additional rent, upon demand, the
amount of such claim, plus all other costs and expenses incurred in connection
therewith, plus interest thereon at the rate of ten percent (10%) per annum
until paid.
ARTICLE 12 - RENTAL, PERSONAL PROPERTY AND OTHER TAXES
- - ------------------------------------------------------
Tenant shall pay before delinquency any and all taxes, assessments, fees or
charges, including any sales, gross income, rental, business occupation or other
taxes, levied or imposed upon Tenant's business operations in the Leased
Premises and any personal property or similar taxes levied or imposed upon
Tenant's trade fixtures, leasehold improvements or personal property located
within the Leased Premises. In the event any such taxes, assessments, fees or
charges are charged to the account of, or are levied or imposed upon the
property of Landlord, Tenant shall reimburse Landlord for the same as additional
rent. Notwithstanding the foregoing, Tenant shall have the right to contest in
good faith any such item and to defer payment until after Tenant's liability
therefor is finally determined.
If any tenant finish improvements, trade fixtures, alterations or improvements
or business machines and equipment located in, on or about the Leased Premises,
regardless of whether they are installed or paid for by Landlord or Tenant and
whether or not they are affixed to and become a part of the realty and the
property of Landlord, are assessed for real property tax purposes at a valuation
higher than that at which other such property in other leased space in the
Building is
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assessed, then Tenant shall reimburse Landlord as additional rent for the amount
of real property taxes shown on the appropriate county official's records as
having been levied upon the Building or other property of Landlord by reason of
such excess assessed valuation.
ARTICLE 13 - ASSIGNMENT AND SUBLETTING
- - --------------------------------------
Tenant may not assign this Lease or sublet the Leased Premises or any part
thereof, without the prior written consent of Landlord, which consent shall not
be unreasonably withheld or delayed; and any attempted assignment or subletting
without such consent shall be invalid. in the event of a permitted assignment or
subletting, Tenant shall nevertheless at all times remain fully responsible and
liable for the payment of rent and the performance and observance of all of
Tenant's other obligations under the terms, conditions and covenants of this
Lease. No assignment or subletting of the Leased Premises or any part thereof
shall be binding upon Landlord unless such assignee or subtenant shall deliver
to Landlord an instrument (in recordable form, if requested) containing an
agreement of assumption of all of Tenant's obligations under this Lease. Upon
the occurrence of an event of default, if all or any part of the Leased Premises
are then assigned or sublet, Landlord, in addition to any other remedies
provided by this Lease or by law, may, at its option, collect directly from the
assignee or subtenant all rent becoming due to Landlord by reason of the
assignment or subletting. Any collection by Landlord from the assignee or
subtenant shall not be construed to constitute a waiver or release of Tenant
from the further performance of its obligations under this Lease or the making
of a new lease with such assignee or subtenant.
Landlord may, in its reasonable discretion, refuse to give its consent to any
proposed assignment or subletting for any reasonable reason, including, but not
limited to Landlord's determination that its interest in the Lease or the Leased
Premises would be adversely affected by (i) the financial condition or
creditworthiness of the proposed assignee or subtenant or (ii) the proposed use
of the Leased Premises by, or business of, the proposed assignee or subtenant.
If Landlord refuses to give its consent to any proposed assignment, Landlord
may, at its option, within thirty (30) days after receiving notice of the
proposal, terminate this Lease by giving Tenant thirty (30) days prior written
notice of such termination, whereupon each party shall be released from all
further obligations and liability hereunder. Landlord shall have thirty (30)
days after receipt from Tenant of (i) a request for Landlord's consent to an
assignment or subletting; (ii) financial statements of such proposed subtenant
or assignee; (iii) a description of the business of the proposed subtenant or
assignee and (iv) the form of the proposed sublease or assignment document. If
Landlord has not provided its consent to such sublease or assignment to Tenant
within such thirty (30) days, then the requested sublease or assignment shall be
deemed not approved by Landlord.
Notwithstanding the foregoing, Tenant may assign the Lease or sublease all or
any portion of the Leased Premises without Landlord's consent to any of the
following (a "Permitted Transferee"): (i) any successor corporation or other
entity resulting from a merger or consolidation of Tenant; (ii) any purchaser of
all or substantially all of Tenant's assets; or (iii) any entity which controls,
is controlled by, or is under common control with Tenant. Tenant shall give
Landlord thirty (30) days prior written notice of such assignment or sublease.
Any Permitted Transferee shall assume in writing all of Tenant's obligations
under this Lease. Tenant shall nevertheless at all times remain fully
responsible and liable for the payment of rent and the performance and
observance of all of Tenant's other obligations under this Lease. Nothing in
this paragraph is intended to nor shall permit Tenant to transfer its interest
under this Lease as part of a fraud or subterfuge to intentionally avoid its
obligations under this Lease (for example, transferring its interest to a shell
corporation that subsequently files a bankruptcy), and any such transfer shall
constitute an Event of Default hereunder.
ARTICLE 14 - TRANSFERS BY LANDLORD
- - ----------------------------------
SECTION 14.01. SALE AND CONVEYANCE OF THE BUILDING. Landlord shall have the
right to sell and convey the Building at any time during the Lease Term, subject
only to the rights of Tenant hereunder; and such sale and conveyance shall
operate to release Landlord from liability
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<PAGE> 18
hereunder after the date of such conveyance as provided in Section 15.04
provided, that any transferee assumes all of Landlord's obligations hereunder.
SECTION 14.02. SUBORDINATION. Tenant's rights under this Lease are and shall
always be subordinate to the operation and effect of any mortgage, deed of
Trust, ground lease or master lease now or hereafter placed upon or governing
the Building or any part or parts thereof by Landlord. This clause shall be
self-operative, and no further instrument of subordination shall be required. in
confirmation thereof, Tenant shall execute such further assurance as may be
reasonably required and reasonably acceptable to Tenant without however changing
or amending the terms of this Lease, so long as Tenant receives a
non-disturbance agreement from such lender in form reasonably acceptable to
Tenant. Any mortgagee, ground lessor or trustee under any such mortgage, deed of
trust, ground lease or master lease may elect that this Lease shall have
priority over its mortgage, deed of trust, ground lease or master lease; and
upon notification to Tenant of such election by such mortgagee, ground lessor or
trustee, this Lease shall be deemed to have priority over said mortgage, deed of
trust, ground lease or master lease whether this Lease is dated prior to or
subsequent to the date of such mortgage, deed of trust, ground lease or master
lease. Notwithstanding the foregoing, no default by Landlord under any such
mortgage, deed of trust, ground lease or master lease shall affect Tenant's
rights hereunder so long as Tenant is not in default under this Lease. Tenant
hereby attorns to any successor to Landlord's interest in this Lease and shall
recognize such successor as Landlord hereunder. Tenant agrees to execute, within
ten (10) business days after Landlord's request, all instruments as may be
reasonably required and reasonably acceptable to Tenant by such successor to
confirm such attornment.
ARTICLE 15 - DEFAULTS AND REMEDIES
- - ----------------------------------
SECTION 15.01. DEFAULTS BY TENANT. The occurrence of any one or more of the
following events shall be an "Event of Default" under and breach of this Lease
by Tenant:
A. Tenant shall fail to pay any Monthly Rental Installment of Minimum
Annual Rent or the Annual Rental Adjustment within five (5) days after
the same shall be due and payable, or any other amounts due Landlord
from Tenant as additional rent or otherwise including any amounts owed
by Tenant hereunder (hereinafter referred to together as "Rent").
Landlord shall provide Tenant with a written courtesy notice of such
failure to pay and Tenant shall have an additional five (5) days to
cure such failure to pay before Tenant is in default and Landlord
exercises its default remedies; provided, however, that Landlord shall
not be required to give such courtesy notice more than one (1) time
with respect to any particular failure to pay, nor more than two (2)
times in any consecutive twelve (12) month period with respect to any
failure to pay in the aggregate.
B. Tenant shall fail to perform or observe any term, condition, covenant
or obligation required to be performed or observed by it under this
Lease (other than the payment of Rent) for a period of thirty (30) days
after notice thereof from Landlord; provided, however, that if the
term, condition, covenant or obligation to be performed by Tenant is of
such nature that the same cannot reasonably be performed within such
thirty-day period, such default shall be deemed to have been cured if
Tenant commences such performance within said thirty-day period and
thereafter diligently undertakes to complete the same and does so
complete the required action within a reasonable time.
C. A trustee or receiver shall be appointed to take possession of
substantially all of Tenant's assets in, on or about the Leased
Premises or of Tenant's interest in this Lease (and Tenant does not
regain possession within sixty (60) days after such appointment);
Tenant makes an assignment for the benefit of creditors; or
substantially all of Tenant's assets in, on or about the Leased
Premises or Tenant's interest in this Lease are attached or levied
under execution (and Tenant does not discharge the same within sixty
(60) days thereafter).
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<PAGE> 19
D. A petition in bankruptcy, insolvency, or for reorganization or
arrangement is filed by or against Tenant pursuant to any federal or
state statute (and, with respect to any such petition filed against it,
Tenant fails to secure a stay or discharge thereof within sixty (60)
days after the filing of the same).
SECTION 15.02. LANDLORD'S RIGHTS AND REMEDIES UPON AN EVENT OF DEFAULT. If an
Event of Default occurs, Landlord shall have the rights and remedies hereinafter
set forth, which rights and remedies shall survive the termination of this
Lease, and shall be distinct, separate and cumulative with and in addition to
any other right or remedy allowed under any applicable law or other provisions
of this Lease:
A. TERMINATION OF LEASE. Upon the occurrence of an Event of Default,
Landlord may terminate this Lease by giving written notice of such
termination to Tenant, which termination shall be effective as of the
date of such notice or any later date therefor specified by Landlord in
such notice (and on the effective date of such termination, all
obligations and liabilities of Landlord hereunder shall terminate) and,
without further notice and without liability, Landlord shall have the
right to repossess the Leased Premises, expel or remove Tenant and any
other person or entity who may be occupying the Leased Premises, remove
any and all of their property from the Leased Premises, and change the
locks. Landlord shall be entitled to recover all loss and damage
Landlord may suffer by reason of such termination, whether through
inability to relet the Leased Premises on satisfactory terms or
otherwise, including without limitation, the following (without
duplication by any element of damages):
(1) accrued Rent to the effective date of termination together
with late charges and interest thereon at the Default Rate
from the date through the date paid; plus
(2) the unamortized cost of the Tenant Finish Improvements,
brokers' fees and commissions, attorneys' fees; allowances for
moving or tenant finish expenses and any other costs incurred
by Landlord in connection with making or executing this Lease
to the extent such amounts have not already been recovered by
Landlord from Tenant in its damages for loss of rent (such
amortized costs being the total of all such costs, times a
fraction, the denominator of which shall be the total number
of months of the stated Lease Term, and the numerator of which
shall be the number of months from the Commencement Date to
the effective date of termination); plus
(3) the cost of recovering the Leased Premises, including without
limitation, attorneys' fees; plus
(4) all costs of enforcing this Lease, including, without
limitation, the provisions of this subparagraph A against
Tenant and any Guarantor; plus
(5) all reasonable costs and expenses incurred by Landlord for any
repairs, maintenance, changes, alterations and improvements to
the Leased Premises (whether to prevent damage or to prepare
the Leased Premises for reletting), brokerage commissions,
advertising costs, attorneys' fees, any economic incentives
given to replacement tenants, and costs of collecting rent
from replacement tenants (collectively, "Reletting Costs");
plus
(6) the present value of the Rent (discounted at a rate of
interest equal to twelve percent [12%] per annum [the
"Discount Rate") that would have accrued under this Lease for
the balance of the Lease Term but for such termination,
reduced by the reasonable fair market rental value of the
Leased Premises for such balance of the Lease Term (determined
from the present value of the actual minimum or base rents and
operating Expenses, discounted at the Discount Rate, received
and to be received from Landlord's reletting of the Leased
Premises or, if the Leased Premises have not been relet, the
minimum or base rents, discounted at the
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<PAGE> 20
Discount Rate, that would be received from a comparable lease
and comparable tenant for a comparable term and taking into
account, among other things, the condition of the Leased
Premises, market conditions and the period of time the Leased
Premises may reasonably remain vacant before Landlord is able
to release the same to a suitable replacement tenant, it being
agreed, however, that Landlord's obligation to relet or
attempt to relet the Leased Premises is subject to the
provisions of subparagraph J below). For purposes of computing
the amount of Rent that would have accrued after the effective
date of termination, obligations for real estate taxes,
insurance costs and Operating Expenses shall be projected,
based upon the rate of increase, if any, in such items from
the Commencement Date through the termination date; plus
(7) any other costs or amounts necessary to compensate Landlord
for all damages caused by Tenant's failure to perform its
obligations hereunder.
B. REPOSSESSION AND RE-ENTRY. Upon the occurrence of an Event of Default,
Landlord may immediately terminate Tenant's right of possession of the
Leased Premises (whereupon all obligations and liability of Landlord
hereunder shall terminate), but not terminate this Lease, and, without
notice, demand or liability, enter upon the Leased Premises or any part
thereof, take absolute possession of the same, expel or remove Tenant
and any other person or entity who may be occupying the Leased
Premises, remove any and all of their property from the Leased
Premises, and change the locks. If Landlord terminates Tenant's
possession of the Leased Premises under this subparagraph B, Landlord
may, at it sole option, relet the Leased Premises, rent received by
Landlord from such reletting shall be applied first to Reletting Costs,
second, to the payment of any indebtedness other than Rent due
hereunder from Tenant to Landlord (in such order as Landlord shall
determine), third, to the payment of Rent due and unpaid hereunder (in
such order as Landlord shall determine), and the residue, if any, shall
be held by Landlord and applied to the payment of other obligations of
Tenant to Landlord as the same become due; and Tenant shall satisfy and
pay to Landlord any deficiency upon demand therefor from time to time.
No such re-entry or taking of possession of the Leased Premises by
Landlord shall be construed as an election on Landlord's part to
terminate this Lease unless a written notice of such termination is
given to Tenant pursuant to subparagraph A above. If Landlord relets
the Leased Premises, either before or after the termination of this
Lease, all such rentals received from such lease shall be and remain
the exclusive property of Landlord, and Tenant shall not, at any time,
be entitled to recover any such rental. Landlord may at any time,
whether before or after a reletting, elect to terminate this Lease
pursuant to subparagraph A above.
C. CONTINUING OBLIGATIONS. No repossession of or re-entering upon the
Leased Premises or any part thereof pursuant to subparagraph B above or
otherwise shall relieve Tenant or any Guarantor of its liabilities and
obligations hereunder, all of which shall survive such repossession or
re-entering. In the event of any such repossession of or re-entering
upon the Leased Premises or any part thereof by reason of the
occurrence of an Event of Default, Tenant will continue to pay to
Landlord all Rent required to be paid by Tenant under this Lease.
D. NEW LOCKS; DISPOSITION OF PROPERTY. If Landlord terminates the Lease
pursuant to subparagraph A above or terminates Tenant's possession
under subparagraph B above, (1) Landlord shall have no obligation
whatsoever to tender to Tenant a key for new locks installed at the
Leased Premises, and (2) any and all property which Landlord has the
right to remove from the Leased Premises pursuant to subparagraph A or
subparagraph B above, shall at Tenant's sole cost and expense, be (a)
stored, and/or (b) sold at private or public sale for such price as
Landlord may obtain, with the proceeds of any such sale being applied
to amounts due from Tenant to Landlord under this Lease (including
Landlord's attorneys' fees and other costs incurred in the removal,
storage and/or sale of such items), with any remainder to be paid to
Tenant.
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<PAGE> 21
E. CUMULATIVE REMEDIES. No right or remedy herein conferred upon or
reserved to Landlord is intended to be exclusive of any other right or
remedy, and each and every right and remedy shall be cumulative and in
addition to any other right or remedy given hereunder or now or
hereafter existing at law or in equity or by statute. In addition to
the other remedies provided in this Lease, Landlord shall be entitled,
to the extent permitted by applicable law, to injunctive relief in case
of the violation, or attempted or threatened violation, of any of the
covenants, agreements, conditions or provisions of this Lease, or to a
decree compelling performance of any of the covenants, agreements,
conditions or provisions of this Lease.
F. LATE CHARGES AND INTEREST. Tenant shall pay Landlord a late charge
equal to seven percent (7%) of the amount of Rent not paid when due to
compensate Landlord for the extra costs Landlord will incur as a result
of such late payment. The parties agree that (1) it would be
impractical and extremely difficult to fix the actual damage that
Landlord will suffer on account of Tenant's late payment, (2) such
interest and late charges represent a fair and reasonable estimate of
the detriment that Landlord will suffer by reason of late payment by
Tenant, and (3) the payment of interest and late charges are distinct
and separate in that the payment of interest is to compensate Landlord
for the use of Landlord's money by Tenant, while the payment of late
charge is to compensate Landlord for Landlord's processing,
administrative and other costs incurred by Landlord as a, result of
Tenant's delinquent payments. Acceptance of such late charges and
interest payments shall not be deemed consent by Landlord to late
payments, nor a waiver of Landlord's right to insist upon timely
payments at any time, nor a waiver of any remedies to which Landlord is
entitled as a result of the late payment of Rent. In addition, in the
event Tenant fails to pay within thirty (30) days after the same is due
and payable any installment of Minimum Annual Rent or any other sum or
charge required to be paid by Tenant to Landlord under this Lease, such
unpaid amount shall bear interest from the due date thereof to the date
of payment at the rate of eighteen percent (18%) per annum until paid
('Default Rate").
Notwithstanding the above, Landlord shall provide Tenant with a written
notice of such failure to pay prior to assessing the late charge and
Tenant shall have an additional five (5) days to cure such failure to
pay before Landlord assesses any late charges or Tenant shall be in
default for its failure to pay; provided, however, that Landlord shall
not be required to give such notice more than one (1) time with respect
to any particular failure to pay, nor more than two (2) times in the
consecutive twelve (12) month period with respect to any failure to pay
in the aggregate.
G. LANDLORD'S CURE OF TENANT DEFAULTS. If Tenant fails to perform any
obligation under this Lease for thirty (30) days after written notice
thereof by Landlord (except that no notice shall be required in
emergencies or for monetary defaults except as specifically provided
herein), Landlord shall have the right (but not the duty), to perform
such obligation on behalf and for the account of Tenant. In such event,
Tenant shall reimburse Landlord upon demand, as additional rent, for
all expenses incurred by Landlord in performing such obligation
together with an amount equal to twelve percent (12%) thereof for
Landlord's overhead, and interest thereon at the Default Rate from the
date such expenses were incurred. Landlord's performance of Tenant's
obligations hereunder shall not be deemed a waiver or release of Tenant
therefrom, or a waiver of any remedies to which Landlord is entitled to
as a result of Tenant's failure to perform.
H. BAD RENT CHECKS. If during the Lease Term, Landlord receives two (2) or
more checks from Tenant which are returned by Tenant's bank for
insufficient funds, Landlord may require that all checks thereafter be
bank certified or cashier's checks (without limiting Landlord's other
remedies). All bank service charges resulting from any bad checks shall
be paid by Tenant.
I. OTHER MATTERS. No re-entry or repossession, repairs, changes,
alterations, additions, reletting, acceptance of keys from Tenant, or
any other action or omission by Landlord
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shall be construed as an election by Landlord to terminate this Lease
or Tenant's right to possession, or to accept a surrender of the Leased
Premises, nor shall the same operate to release the Tenant in whole or
in part from any of Tenant's obligations hereunder, unless express
written notice of such intention is sent by Landlord to Tenant.
Landlord may bring suits for amounts owed by Tenant hereunder or any
portions thereof, as the same accrue or after the same have accrued,
and no suit or recovery of any portion due hereunder shall be deemed a
waiver of Landlord's right to collect all amounts to which Landlord is
entitled hereunder, nor shall the same serve as any defense to any
subsequent suit brought for any amount not theretofore I reduced to
judgment. Landlord shall be under no obligation to observe or perform
any provision of this lease on its part to be observed or performed
which accrues after the date of any Event of Default by Tenant. The
times set forth herein for the curing of violations by Tenant or
Landlord are of the essence of this Lease.
J. MITIGATION OF DAMAGES. If Landlord terminates this Lease or Tenant's
right to possession, Landlord shall mitigate Landlord's damages to the
extent required by applicable law. If Landlord has not terminated this
Lease or Tenant's right to possession, Landlord shall have no
obligation to mitigate under any circumstances except to the extent
required by applicable law and may permit the Leased Premises to remain
vacant or abandoned. If Landlord is required by applicable law to
mitigate damages under this Lease: (1) Landlord shall be required only
to use reasonable efforts to mitigate, which shall not exceed such
efforts as Landlord generally uses to lease other space in comparable
Cincinnati office buildings, (2) Landlord will not be deemed to have
failed to mitigate if Landlord leases any other portions of the
Building before reletting all or any portion of the Leased Premises,
and (3) Landlord shall not be deemed to have failed to mitigate if it
incurs Reletting Costs. In recognition that the value of the Building
depends on the rental rates and terms of leases therein, Landlord's
rejection of a prospective replacement tenant based on an offer of
rentals below Landlord's reasonable published rates for new leases of
comparable space at the Building at the time in question, or at
Landlord's option, below the rates provided in this Lease, or
containing terms less favorable than those contained herein, shall not
give rise to a claim by Tenant that Landlord failed to mitigate
Landlord's damages.
SECTION 15.03. DEFAULT BY LANDLORD AND REMEDIES OF TENANT. It shall be a default
under and breach of this Lease by Landlord if it shall fail to perform or
observe any term, condition, covenant or obligation required to be performed or
observed by it under this Lease for a period of thirty (30) days after notice
thereof from Tenant; provided, however, that if the term, condition,- covenant
or obligation to be performed by Landlord is of such nature that the same cannot
reasonably be performed within such thirty-day period, such default shall be
deemed to have been cured if Landlord commences such performance within said
thirty-day period and thereafter diligently undertakes to complete the same.
Upon the occurrence of any such default, Tenant may sue for injunctive relief or
to recover damages for any loss resulting from the breach or pursue any other
damages or remedies available to Tenant in law or equity.
SECTION 15.04. LIMITATION OF LANDLORD'S LIABILITY. If Landlord shall fail to
perform or observe any term, condition, covenant or obligation required to be
performed or observed by it under this Lease as provided in Section 15.03 and if
Tenant shall, as a consequence thereof, recover a money judgment against
Landlord, Tenant agrees that it shall look solely to Landlord's right, title and
interest in and to the Building for the collection of such judgment; and Tenant
further agrees that no other assets of Landlord shall be subject to levy,
execution or other process for the satisfaction of Tenant's judgment and that
Landlord shall not be liable for any deficiency.
The references to "Landlord" in this Lease shall be limited to mean and include
only the owner or owners, at the time, of the fee simple interest in the
Building. In the event of a sale or transfer of such interest (except a mortgage
or other transfer as security for a debt), the "Landlord" named herein, or, in
the case of a subsequent transfer, the transferor, shall, after the date of such
transfer, be automatically released from all personal liability for the
performance or observance of any term, condition, covenant or obligation
required to be performed or observed by Landlord
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hereunder; and the transferee shall be deemed to have assumed all of such terms,
conditions, covenants and obligations accruing after the date of transfer.
SECTION 15.05. NON-WAIVER OF DEFAULTS. The failure or delay by either party
hereto to exercise or enforce at any time any of the rights or remedies or other
provisions of this Lease shall not be construed to be a waiver thereof, nor
affect the validity of any part of this Lease or the right of either party
thereafter to exercise or enforce each and every such right or remedy or other
provision. No waiver of any default and breach of the Lease shall be deemed to
be a waiver of any other default and breach. The receipt by Landlord of less
than the full rent due shall not be construed to be other than a payment on
account of rent then due, nor shall any statement on Tenant's check or any
letter accompanying Tenant's check be deemed an accord and satisfaction, and
Landlord may accept such payment without prejudice to Landlord's right to
recover the balance of the rent due or to pursue any other remedies provided in
this Lease. No act or omission by Landlord or its employees or agents during the
Lease Term shall be deemed an acceptance of a surrender of the Leased Premises,
and no agreement to accept such a surrender shall be valid unless in writing and
signed by Landlord.
SECTION 15.06. ATTORNEYS' FEES. In the event either party defaults in the
performance or observance of any of the terms, conditions, covenants or
obligations contained in this Lease and either party employs attorneys to
enforce all or any part of this Lease, collect any rent due or to become due or
recover possession of the Leased Premises, the non-prevailing party agrees to
reimburse the prevailing party for the attorneys' fees reasonably incurred
thereby, whether or not suit is actually filed.
ARTICLE 16 - LANDLORD'S RIGHT TO RELOCATE TENANT [Intentionally omitted]
- - ------------------------------------------------
ARTICLE 17 - NOTICE AND PLACE OF PAYMENT
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SECTION 17.01. NOTICES. Any notice required or permitted to be given under this
Lease or by law shall be deemed to have been given if it is written and
delivered in person or mailed by Registered or Certified mail, postage prepaid,
or by delivery by a nationally recognized overnight courier service to the party
who is to receive such notice at the addresses specified in Item K of the Basic
Lease Provisions. When so mailed, the notice shall be deemed to have been given
as of the date it was mailed. The address specified in Item K of the Basic Lease
Provisions may be changed by giving written notice thereof to the other party.
SECTION 17.02. PLACE OF PAYMENT. All rent and other payments required to be made
by Tenant to Landlord shall be delivered or mailed to Landlord's management
agent at the address specified in Item K of the Basic Lease Provisions or any
other address Landlord may specify from time to time by written notice given to
Tenant.
ARTICLE 18 - MISCELLANEOUS GENERAL PROVISIONS
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SECTION 18.01. CONDITION OF PREMISES. Tenant acknowledges that neither Landlord
nor any agent of Landlord has made any representation or warranty with respect
to the Leased Premises or the Building or with respect to the suitability or
condition of any part of the Building for the conduct of Tenant's business
except as provided in this Lease.
SECTION 18.02. INSOLVENCY OR BANKRUPTCY. In no event shall this Lease be
assigned or assignable by operation of law, and in no event shall this Lease be
an asset of Tenant in any receivership, bankruptcy, insolvency, or
reorganization proceeding.
SECTION 18.03. COMMON AREAS. The term "Common Areas," as used in this Lease,
refers to the areas of the Building and surrounding land which are designed for
use in common by all tenants of the Building and their respective employees,
agents, customers, invitees and others, and includes, by way of illustration and
not limitation, entrances and exits, hallways and stairwells, elevators,
restrooms, sidewalks, driveways, parking areas, landscaped areas and other areas
as may be designated by Landlord as part of the Common Areas of the Building.
Tenant shall have
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the non-exclusive right, in common with others, to the use of the Common Areas,
subject to such nondiscriminatory rules and regulations as may be adopted by
Landlord including those set forth in Section 5.02 and EXHIBIT C of this Lease.
SECTION 18.04. CHOICE OF LAW. This Lease shall be governed by and construed
pursuant to the laws of the State of Ohio.
SECTION 18.05. SUCCESSORS AND ASSIGNS. Except as otherwise provided in this
Lease, all of the covenants, conditions and provisions of this Lease shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns.
SECTION 18.06. NAME. Tenant shall not, without the written consent of Landlord,
use the name of the Building for any purpose other than as the address of the
business to be conducted by Tenant in the Leased Premises, and in no event shall
Tenant acquire any rights in or to such names.
SECTION 18.07. EXAMINATION OF LEASE. Submission of this instrument for
examination or signature to Tenant does not constitute a reservation of or
option for Lease, and it is not effective as a Lease or otherwise until
execution by and delivery to both Landlord and Tenant.
SECTION 18.08. TIME. Time is of the essence of this Lease and each and all of
its provisions.
SECTION 18.09. DEFINED TERMS AND MARGINAL HEADINGS. The words "Landlord" and
"Tenant" as used herein shall include the plural as well as the singular. If
more than one person is named as Tenant, the obligations of such persons are
joint and several. The marginal headings and titles to the articles of this
Lease are not a part of this Lease and shall have no effect upon the
construction or interpretation of any part hereof.
SECTION 18.10. PRIOR AGREEMENTS. This Lease and the letter of understanding
executed pursuant to Section 2.03 hereof contain all of the agreements of the
parties hereto with respect to any matter covered or mentioned in this Lease,
and no prior agreement, understanding or representation pertaining to any such
matter shall be effective for any purpose. No provision of this Lease may be
amended or added to except by an agreement in writing signed by the parties
hereto or their respective successors in interest.
SECTION 18.11. PAYMENT OF AND INDEMNIFICATION FOR LEASING COMMISSIONS. The
parties hereby acknowledge, represent and warrant that the only real estate
broker or brokers involved in the negotiation and execution of this Lease is
that, or are those named in Item I of the Basic Lease Provisions and that such
brokers represent the parties as set forth in Item I of the Basic Lease
Provisions; that Landlord is obligated to pay to it or them or for their benefit
a leasing commission under its Leasing Agreement with Duke Realty Limited
Partnership; and that no other broker or person is entitled to any leasing
commission or compensation as a result of the negotiation or execution of this
Lease. Each party shall indemnify the other party and hold it harmless from any
and all liability for the breach of any such representation and warranty on its
part and shall pay any compensation to any other broker or person who may be
deemed or held to be entitled thereto.
SECTION 18.12. SEVERABILITY OF INVALID PROVISIONS. If any provision of this
Lease shall be held to be invalid, void or unenforceable, the remaining
provisions hereof shall not be affected or impaired, and such remaining
provisions shall remain in full force and effect.
SECTION 18.13. DEFINITION OF THE RELATIONSHIP BETWEEN THE PARTIES. Landlord
shall not, by virtue of the execution of this Lease or the leasing of the Leased
Premises to Tenant, become or be deemed a partner of or joint venturer with
Tenant in the conduct of Tenant's business on the Leased Premises or otherwise.
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<PAGE> 25
SECTION 18.14. ESTOPPEL CERTIFICATE. Tenant shall, within fifteen (15) days
following receipt of a written request from Landlord, execute, acknowledge and
deliver to Landlord or to any lender, purchaser or prospective lender or
purchaser designated by Landlord a written statement, in the form as Landlord
may reasonably request, certifying (i) that this Lease is in full force and
effect and unmodified (or, if modified, stating the nature of such
modification), (ii) the date to which rent has been paid, (iii) that there are
not, to Tenant's knowledge, any uncured defaults (or specifying such defaults if
any are claimed), and (iv) any other state of facts reasonably required
respecting the Lease or Tenant's occupancy of the Leased Premises. Any such
statement may be relied upon by any prospective purchaser or mortgagee of all or
any part of the Building. Tenant's failure to deliver such statement within such
period shall be conclusive upon Tenant that this Lease is in full force and
effect and unmodified, and that there are no uncured defaults in Landlord's
performance hereunder.
SECTION 18.15. DECLARATION. This Lease shall be subject in all respects to the
Covenants.
SECTION 18.16. AGENCY DISCLOSURE. Tenant acknowledges having previously received
the Agency Disclosure Statement attached. The broker as provided in Item I of
the Basic Lease Provisions, its agent and employees, have represented only the
Landlord, and have not in any way represented the Tenant, in the marketing,
negotiation, and completion of this lease transaction.
ARTICLE 19. TENANT'S RESPONSIBILITY REGARDING ENVIRONMENTAL
- - -----------------------------------------------------------
LAWS AND HAZARDOUS SUBSTANCES.
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SECTION 19.01. DEFINITIONS.
A. "Environmental Laws" - All federal, state and municipal laws,
ordinances, rules and regulations applicable to the environmental and
ecological condition of the Leased Premises, including, without
limitation, the Federal Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended; the Federal
Resource Conservation and Recovery Act; the Federal Toxic Substance
Control Act; the Clean Air Act; the Clean Water Act; the rules and
regulations of the Federal Environmental Protection Agency, or any
other federal, state or municipal agency or governmental board or
entity having jurisdiction over the Leased Premises.
B. "Hazardous Substances" - Includes:
(i) Those substances included within the definitions of "hazardous
substances,' "hazardous materials," "hazardous wastes," "toxic
substances," "solid waste" or "infectious waste" in any of the
Environmental Laws; and
(ii) Such other substances, materials and wastes which are or
become regulated under applicable local, state or federal law,
or which are classified as hazardous, toxic or infectious
under present or future Environmental Laws or other federal,
state, or local laws or regulations.
SECTION 19.02. COMPLIANCE. Tenant, at its sole cost and expense, shall promptly
comply with the Environmental Laws which shall impose any duty upon Tenant with
respect to the use, occupancy, maintenance or alteration of the Leased Premises.
Tenant shall promptly comply with any notice from any source issued pursuant to
the Environmental Laws or with any notice from any insurance company pertaining
to Tenant's use, occupancy, maintenance or alteration of the Leased Premises,
whether such notice shall be served upon Landlord or Tenant.
SECTION 19.03. RESTRICTIONS ON TENANT. Tenant shall not cause or permit to
occur:
A. Any violation of the Environmental Laws related to environmental
conditions on, under, or about the Leased Premises, or arising from
Tenant's use or occupancy of the Leased Premises, including, but not
limited to, soil and ground water conditions.
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<PAGE> 26
B. The use, generation, release, manufacture, refining, production,
processing, storage or disposal of any Hazardous Substances on, under,
or about the Leased Premises, or the transportation to or from the
Leased Premises of any Hazardous Substances, except as necessary and
appropriate for general office use in which case the use, storage or
disposal of such Hazardous Substances shall be performed in compliance
with the Environmental Laws and standards prevailing in the industry.
SECTION 19.04. NOTICES, AFFIDAVITS, ETC.
- - -------------- -------------------------
A. Tenant shall immediately notify Landlord of (i) any violation by
Tenant, its employees, agents, representatives, customers, invitees or
contractors of the Environmental Laws on, under or about the Leased
Premises, or (ii) the presence or suspected presence of any Hazardous
Substances on, under or about the Leased Premises and shall immediately
deliver to Landlord any notice received by Tenant relating to (i) and
(ii) above from any source.
B. Tenant shall execute affidavits, representations and the like from time
to time, within five (5) days of Landlord's request therefor,
concerning Tenant's best knowledge and belief regarding the presence of
any Hazardous Substances on, under or about the Leased Premises.
SECTION 19.05. LANDLORD'S RIGHTS.
- - -------------- ------------------
A. Landlord and its agent shall have the right, but not the duty, upon
advance notice (except in the case of emergency when no notice shall be
required) to inspect the Leased Premises and conduct tests thereon at
any time to determine whether or the extent to which there has been a
violation of Environmental Laws by Tenant or whether there are
Hazardous Substances on, under or about the Leased Premises. In
exercising its rights herein, Landlord shall use reasonable efforts to
minimize interference with Tenant's business but such entry shall not
constitute an eviction of Tenant, in whole or in part, and Landlord
shall not be liable for any interference, loss, or damage to Tenant's
property or business caused thereby.
B. If Landlord, any lender or governmental agency shall ever require
testing to ascertain whether there has been a release of Hazardous
Substances on, under or about the Leased Premises or a violation of the
Environmental Laws, and such requirement arose in whole or in part
because of an act or omission on the part of Tenant, then the
reasonable costs thereof shall be reimbursed by Tenant to Landlord upon
demand as Additional Rent.
SECTION 19.06. TENANT'S INDEMNIFICATION. Tenant shall indemnify and hold
harmless Landlord and Landlord's managing agent from any and all claims, loss,
liability, costs, expenses or damage, including attorneys' fees and costs of
remediation, incurred by Landlord in connection with any breach by Tenant of its
obligations under this Article 19. The covenants and obligations of Tenant under
this Article 19 shall survive the expiration or earlier termination of this
Lease.
SECTION 19.07. LANDLORD'S REPRESENTATION. Notwithstanding anything contained in
this Article 19 to the contrary, Tenant shall not have any liability under this
Article 19 resulting from any conditions existing, or events occurring, or any
Hazardous Substances existing or generated, at, in, on, under or in connection
with the Leased Premises prior to the Commencement Date of this Lease except to
the extent Tenant exacerbates the same. Landlord represents to Tenant, to the
best of its knowledge, that prior to the date of this Lease, no spill, disposal
or other release of any Hazardous Substances at, on, in, or from the Leased
Premises, the Building or the Common Areas has occurred and that Landlord is in
compliance with all Environmental Laws.
ARTICLE 20 - ADDITIONAL PROVISIONS
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SECTION 20.01. FINANCIAL STATEMENTS. During the Lease Term and any extensions
thereof, Tenant shall provide to Landlord within twenty (20) days following
Landlord's request, a copy of Tenant's most recent annual report prepared as of
the end of Tenant's most recent fiscal year.
SECTION 20.02. REPRESENTATIONS AND INDEMNIFICATIONS. Any representations and
indemnifications of Landlord contained in the Lease shall not be binding upon
(i) any mortgagee having a mortgage presently existing or hereafter placed on
the Building, or (ii) a successor to Landlord which has obtained or is in the
process of obtaining fee title interest to the Building as a result of a
foreclosure of any mortgage or a deed in lieu thereof.
SECTION 20.03. TENANT'S AND LANDLORD'S REPRESENTATIONS AND WARRANTIES.
A. The undersigned Tenant represents and warrants to Landlord that (i)
Tenant is a corporation duly organized, validly existing and in good
standing in accordance with the laws of the state under which it was
organized; (ii) all action necessary to authorize the execution of this
Lease has been taken by Tenant; and (iii) the individual executing and
delivering this Lease on behalf of Tenant has been authorized to do so,
and such execution and delivery shall bind Tenant. Tenant, at
Landlord's request, shall provide Landlord with evidence of such
authority.
B. The undersigned Landlord represents and warrants to Tenant that (i)
Landlord is a partnership duly organized, validly existing and in good
standing in accordance with the laws of the state under which it was
organized; (ii) all action necessary to authorize the execution of this
Lease has been taken by Landlord; and (iii) the individual executing
and delivering this Lease on behalf of Landlord has been authorized to
do so, and such execution and delivery shall bind Landlord. Landlord,
at Tenant's request, shall provide Tenant with evidence of such
authority.
SECTION 20.04. PARKING. During the Lease Term, Tenant shall be entitled to five
(5) non-exclusive parking space for every 1,000 rentable square feet of the
Leased Premises in the parking areas established for the Building, which parking
spaces shall include six (6) reserved parking spaces in the area depicted on
Exhibit H attached hereto and incorporated herein, all at no cost to Tenant. In
addition, Tenant agrees that its employees and agents will not park in spaces
designated "visitor parking."
SECTION 20.05. SATELLITE DISH.
A. Provided Tenant is not in default under the Lease, and provided further
that Tenant complies with all zoning and other municipal and county
rules and regulations, Tenant shall have the right, at its own cost and
expense and subject to the terms of this Agreement, to install, operate
and maintain on the roof of the Building for Tenant's use only, a
satellite dish or antennae ("Dish'). Tenant shall be solely responsible
for obtaining any necessary permits and licenses required to install
and operate the Dish. Copies of such permits and licensees shall be
provided to Landlord.
B. The size, location, design and manner of installation of the Dish and
all related wiring shall be designated and approved by Landlord, which
approval shall not be unreasonably withheld. After obtaining written
approval of Landlord, Tenant shall have reasonable access to the roof
for installation and maintenance of the Dish and shall have the right
to install all reasonable wiring related thereto. However, unless
otherwise approved by Landlord in writing, which approval shall not be
unreasonably withheld, in no event shall Tenant be permitted to
penetrate the roof membrane in connection with the installation or
maintenance of the Dish.
C. Tenant represents and warrants that the installation and maintenance of
the Dish will not cause any damage to the structural portions of the
Building. Tenant shall be responsible for repairing any such damages to
the structure.
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D. Tenant shall install, operate and maintain the Dish in accordance with
all federal, state and local laws and regulations. Prior to
installation of the Dish, Tenant shall, on behalf of the installer,
provide Landlord with a certificate of insurance reasonably
satisfactory to Landlord.
E. Tenant reserves the right to discontinue its use of the Dish at any
time prior to the termination of the Lease or any renewal or extension
thereof for any reason whatsoever, provided that Tenant gives thirty
(30) days prior written notice thereof to Landlord. Tenant shall be
responsible for all costs of removal and for restoring the Building to
its original condition after such removal. Notwithstanding the
foregoing, Landlord reserves the right at any time during the Lease
Term if Tenant discontinues use of the Dish or upon the expiration of
the Lease Term to demand by written notice to Tenant that Tenant remove
the Dish within ten (10) days from Tenant's receipt of notice thereof.
Such removal shall be in accordance with all of the terms and
conditions set forth herein. If Tenant elects not to remove the Dish
from the Building, upon expiration or earlier termination of this
Lease, or after expiration of the ten (10) day notice period provided
herein, the Dish shall be deemed abandoned by Tenant and shall become
the property of the Landlord.
F. Any language in the Lease notwithstanding, Landlord shall not be liable
and Tenant shall indemnify, defend and hold Landlord harmless from and
against any and all liability, damages (including but not limited to
personal injury, death, or property damages), costs, expenses, and
attorneys' fees incurred by Landlord arising from any Dish related
cause whatsoever, including those arising from the installation, use,
maintenance and removal thereof, except for that caused by the sole and
direct gross negligence of Landlord.
G. If Tenant fails to comply with the terms stated herein, or if removal
of the Dish is required by any governmental authority having
jurisdiction thereof, this provision may be terminated by Landlord upon
thirty (30) days prior written notice to Tenant specifying the reason
for such termination unless such shorter time is required by such
governmental authority.
H. Tenant's right to install, maintain and use such Dish shall be subject
to the rights of any and all existing Tenants in the Building that have
previously been granted the right to install and maintain their Dish by
the Landlord on the roof of the Building. Such rights granted other
tenants in the Building prior to this right shall not serve to prohibit
Tenant from installing a Dish on the roof of the Building.
SECTION 20.06. AMERICANS WITH DISABILITIES ACT. The parties agree that the
liabilities and obligations of Landlord and Tenant under that certain federal
statute commonly known as the Americans With Disabilities Act (42 U.S.C. 12101
et seq.) as well as the regulations and accessibility guidelines promulgated
thereunder as each of the foregoing is supplemented or amended from time to time
(collectively, the "Act") shall be apportioned as follows:
(a) Tenant shall be responsible for all future alterations, additions
or improvements to the Leased Premises after the Early Occupancy Date, excluding
structural, in order to bring the Leased Premises in compliance with the Act
during the term of the Lease. In the event that at any time during the term of
the Lease, Tenant is required by the Act to make any alterations or
modifications within the Leased Premises in order to accommodate any employee or
customers of Tenant or any applicant for employment with Tenant, Landlord agrees
that Tenant shall have the right, at Tenant's sole expense, to alter or modify
the Leased Premises so as to comply with the Act, so long as such alteration or
modification does not affect the structural integrity of the Building. Such
alterations are subject to the terms and conditions of Section 7.03 of the
Lease, and prior written approval by Landlord of the plans and specifications
therefor, which approval shall not be unreasonably withheld.
(b) Landlord represents and warrants that on the Commencement Date, the
Leased Premises, Building and Common Areas shall be in compliance with the Act.
Landlord shall be
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responsible for the compliance of all modifications to the Building structure
and Common Areas within and associated with the Building (specifically including
any parking areas, driveways or other outdoor common areas associated with the
Building) required in order to bring said Common Areas in compliance with the
provisions of the Act. Any such modifications by Landlord shall be such as
Landlord deems necessary in its sole discretion. All costs incurred by Landlord
hereunder shall be included in Operating Expenses in accordance with the terms
of Section 3.02 of the Lease; provided, however, that if such modifications are
required because of a change in Tenant's use of the Leased Premises or any
future alterations to the Leased Premises, then Tenant shall reimburse Landlord
for all costs Landlord incurs to bring the Common Areas into compliance, which
costs may be part of Operating Expenses.
(c) All construction, alterations and modifications required or
permitted hereunder shall be done in a good and workmanlike manner.
(d) Landlord and Tenant agree to indemnify and hold harmless each other
from and against any and all fines, suits, demands, losses and actions
(including attorneys, fees and costs and court costs) arising out of or related
to the other party's failure to perform any of its obligations under this
section.
SECTION 20.07. SIGNAGE. Provided Tenant is not in default hereunder and the law
allows a sign on the Building, Tenant shall have the non-exclusive right to
install a sign on the front of the Building facing I-71. Landlord agrees to
allow only two (2) signs on the exterior of the Building. If a monument sign
servicing the Building is installed which identifies the names of tenants in the
Building, Tenant shall have the right to install a sign on such monument sign at
its sole cost and expense and Tenant shall pay its proportionate share of the
maintenance costs of such sign which is paid for by the tenants who are
identified on such monument sign, and Landlord shall pay for such monument sign.
All signs shall be installed, maintained and repaired by Tenant at its sole cost
and expense and shall comply with all laws. Landlord shall have the right to
approve the signs, including the location, size, color and style, which approval
shall not be unreasonably withheld. Upon the expiration or early termination of
this Lease, Tenant shall remove the signs and repair any damage caused by such
removal at Tenant's sole cost and expense.
SECTION 20.08. EXCLUSIVE. Provided Tenant is not in default hereunder and Tenant
leases a minimum of 25,000 rentable square feet in the Building, Landlord agrees
not to lease any other space in the Building to any of the entities listed on
EXHIBIT D whose business conducted in the Building competes with Tenant's
business as conducted by Tenant in the Building as of the Commencement Date.
SECTION 20.09. RIGHT OF FIRST REFUSAL.
Provided that (i) Tenant is not in default hereunder and (ii) Tenant originally
named herein or a Permitted Transferee remains in possession of and has been
operating in the Leased Premises throughout the Lease Term. Tenant shall have
the right of first refusal ("Refusal Option") to lease additional space in the
Building crosshatched on the attached EXHIBIT E ("Refusal Space") as such space
becomes available for leasing during the Lease Term. If Tenant exercises this
Refusal Option prior to the Commencement Date, the terms for the Refusal Space
shall be on the same terms and conditions as this Lease and this Lease shall be
amended to reflect the increase in the Leased Premises, Rent and Building
Expense Percentage. If Tenant exercises this Refusal Option after the
Commencement Date, the Refusal Space shall be offered to Tenant at the rental
rate and upon such other terms and conditions, as are then being offered by
Landlord to a specific third party prospective tenant for such space. In the
event that the Refusal Space is not leased to the initial third party
prospective tenant, then this Refusal option shall remain in effect in the event
of a re-offer to such original prospective tenant or an offer to any other
specific third party prospective tenant and the Refusal Space shall again be
offered to Tenant in accordance herewith.
- 29 -
<PAGE> 30
Upon notification in writing by Landlord that Landlord is in negotiations with a
prospective tenant and written notice of the terms of such lease for the Refusal
Space as given to the prospect are also given to Tenant in writing, Tenant shall
have seven (7) business days in which to notify Landlord in writing of its
election to lease the Refusal Space at such rental rates described in such
notice, in which event this Lease shall be amended to incorporate such Refusal
Space.
It is understood and agreed that this Refusal Option shall not be construed to
prevent any tenant in the Building from extending or renewing its lease.
SECTION 20.10. OPTION TO TERMINATE.
Provided Tenant is not in default hereunder, Tenant shall have the option to
terminate this Lease for all or part of the Leased Premises at the end of the
sixtieth (60th) month of the Lease Term. Such option shall be exercised by (i)
Tenant's giving written notice to Landlord of its intention to terminate at
least twelve (12) months prior to the effective date of such termination, and
(ii) Tenant's payment to Landlord of a termination fee in the amount outlined on
EXHIBIT F which represents the unamortized costs of the Tenant Finish
Improvements, commissions and all allowances, which payment shall accompany the
notice provided in (i) above. Such payment is made in consideration for
Landlord's grant of this option to terminate, to compensate Landlord for rental
and other concessions given to Tenant, and for other good and valuable
consideration. Such payment shall not in any manner affect Tenant's obligations
to pay Minimum Annual Rent and Annual Rental Adjustment or to perform its
obligations under the Lease up to and including the date of termination. Failure
to timely and properly exercise this option shall forever waive and extinguish
it. If such option is validly exercised, then upon such termination, Tenant
shall surrender the Leased Premises to Landlord in accordance with the terms of
this Lease and each party shall be released from further liability hereunder;
provided, however, that such termination shall not affect any right or
obligation arising prior to termination.
SECTION 20.11. OPTION TO EXTEND.
A. Grant and Exercise of Option. Provided (i) Tenant is not in default
hereunder and (ii) Tenant originally named herein or a Permitted
Transferee remains in possession of and has been operating in the
Leased Premises for the Term immediately preceding the Extension Term
(defined below), Tenant shall have the option to extend the Term of
this Lease ("Original Term") for seventy-five percent (75%) or more of
the Leased Premises for two (2) additional periods of five (5) years
each (the "Extension Term(s)"). The Extension Term shall be upon the
same terms and conditions contained in the Lease for the original Term
except (i) this provision giving two (2) extension options shall be
amended to reflect the remaining options to extend, if any and (ii) the
Minimum Annual Rent shall be adjusted as set forth below (the 'Rent
Adjustment'). Tenant shall exercise such options by (i) delivering to
Landlord, no later than nine (9) months prior to the expiration of the
Original Term or first extension term, as applicable, written notice of
Tenant's desire to extend the Term of the Lease and designate the
location and amount of the part of the Leased Premises to which such
option applies (if less than the entire Leased Premises is being
renewed as specifically provided herein). Unless Landlord otherwise
agrees in writing, Tenant's failure to timely exercise such option
shall waive it and any succeeding option. If Tenant properly exercises
its option to extend, Landlord and Tenant shall execute an amendment to
the Lease reflecting the terms and conditions of the Extension Term.
B. Rent Adjustment. The Minimum Annual Rent for the applicable Extension
Term shall be an amount equal to the rate per rentable square foot as
follows:
- 30 -
<PAGE> 31
First Renewal Option
--------------------
Year 11 $14.40 per rentable square foot per year
Year 12 $14.76 per rentable square foot per year
Year 13 $15.13 per rentable square foot per year
Year 14 $15.51 per rentable square foot per year
Year 15 $15.90 per rentable square foot per year
Second Renewal Option
---------------------
Year 16 $16.30 per rentable square foot per year
Year 17 $16.70 per rentable square foot per year
Year 18 $17.12 per rentable square foot per year
Year 19 $17.55 per rentable square foot per year
Year 20 $17.99 per rentable square foot per year
SECTION 20.12. FIRST OPTION TO EXPAND. Provided Tenant is not in default
hereunder, Tenant shall have the option to expand the Leased Premises by any
portion of the second floor of the Building ("First Expansion Option"). Tenant
shall exercise its First Expansion by providing Landlord with written notice of
its exercise of the First Expansion Option on or before August 1, 1998. If
Tenant properly exercises its expansion option, the terms of such expansion
shall be upon the same terms and conditions as contained in this Lease except
the amount of the square footage for the Leased Premises, the Building Expense
Percentage, the Minimum Annual Rent, Monthly Rental Installments, the allowances
and Termination Payment shall be increased pro rata to reflect such expansion of
rentable square feet. Landlord and Tenant shall execute an amendment to the
Lease reflecting the terms and conditions of such expansion. Tenant shall
provide final space plans to Landlord on or before October 1, 1998 and agree
upon final pricing of the tenant finish improvements for the First Expansion
Space by November 1, 1998. Rent shall commence when Landlord delivers the First
Expansion Option Space to Tenant substantially complete but no later than
January 1, 1999 unless such delay is due to the acts of Landlord.
SECTION 20.13. SECOND OPTION TO EXPAND. Provided Tenant is not in default
hereunder, Tenant shall have the option after the thirty-sixth (36th) month of
the Lease Term to expand the Leased Premises by all or part of the remaining
space on the second floor of the Building ("Second Expansion Option"). Tenant
shall exercise its Second Expansion Option with ten (10) months prior written
notice to Landlord given at any time, except that Landlord shall not be required
to deliver the Second Expansion Space to Tenant substantially complete on or
before the 38th month of the Lease Term. If Tenant exercises this option on or
before the 26th month of the Lease Term, Tenant shall provide Landlord with
final space plans for the Second Expansion Space on or before the 32nd month of
the Lease Term and Tenant shall provide its agreement to the final pricing for
any tenant finish improvements for the Second Expansion Space on or before the
34th month of the Lease Term. For every subsequent month after the 26th month of
the Lease Term in which Tenant exercises this option, provided that Tenant
provides Landlord with final space plans for the Second Expansion Space and its
agreement to the final pricing for any tenant finish improvements for the Second
Expansion Space, Landlord shall deliver the Second Expansion Space to Tenant
substantially complete within four (4) months after the date Landlord receives
the plans and agreement to the final pricing but Landlord shall not be required
to deliver the Second Expansion Space any sooner than ten (10) months following
receipt of Tenant's written notice of exercise of this Second Expansion Option.
Landlord shall not be required to deliver the Second Expansion Space to Tenant
substantially complete on or before the 38th month of the Lease Term. The
Minimum Annual Rent and the Annual Rental Adjustment for the Second Expansion
Space shall commence on the date that Landlord delivers the Second Expansion
Space to Tenant substantially complete. The terms of such second expansion shall
be upon the same terms and conditions as contained in this Lease except the
amount of the square footage for the Leased Premises, the Building Expense
Percentage, the Minimum Annual Rent and Monthly Rental Installments shall be
increased pro rata to reflect such expansion, the length of term for the Second
Expansion Option shall be the greater of five (5) years or coterminous with the
original Term and Landlord shall provide Tenant an allowance for the tenant
finish
- 31 -
<PAGE> 32
improvements as outlined below. If the Second Expansion Option space is first
generation space, Landlord shall provide Tenant in addition to base building
improvements as set forth in EXHIBIT B an allowance for tenant finish
improvements below the finished ceiling for the Second Expansion Option space in
an amount equal to $15.00 per rentable square foot of the Second Expansion
option space ("Second Expansion Allowance") decreased to an amount determined by
multiplying the Second Expansion Allowance by a fraction, the numerator of which
is equal to the number of months of the initial term remaining after Tenant
commences use of the Second Expansion Option space and the denominator of which
is 120 (the number of months in the Lease Term). If the Second Expansion Option
space is second generation space, Landlord shall provided Tenant an allowance
for tenant finish improvements equal to One Dollar ($1.00) per rentable square
foot of the Second Expansion Option space per year of the term of the Lease for
the Second Expansion Option space. Tenant shall be required to lease the Second
Expansion Option space in increments equal to the same rentable square footage
of the space of the tenants Landlord must relocate. Tenant shall pay for all of
the incremental costs incurred by Landlord to relocate any tenants to
accommodate Tenant's Second Expansion option. Incremental costs shall be the
actual relocation costs which include, but is not limited to, the cost of
telephone installation, moving of equipment and furniture, data wiring and
installation, printing of stationery with new address, and the portion of the
tenant improvement costs not amortized over an extended term for the relocated
tenant. All leases with tenants on the second floor of the Building shall
provide for Landlord to relocate such tenant. Landlord shall use commercially
reasonable efforts to obtain a new five (5) year term for the relocating
tenants.
SECTION 20.14. EARLY OCCUPANCY. Subject to Excusable Delays, Landlord shall
deliver possession of the Leased Premises to Tenant on November 1, 1998 ("Early
Occupancy Date"). The Early Occupancy Date shall be extended for any Excusable
Delays. All terms and conditions of this Lease will become effective upon Tenant
taking possession of the Leased Premises, except for the payment of Minimum
Annual Rent and the Annual Rental Adjustment, which will commence on the earlier
of (i) sixty (60) days after the Early Occupancy Date or (ii) sixty (60) days
after the date the Leased Premises would have been ready for Tenant's occupancy
but for Tenant caused delays.
SECTION 20.15. MEMORANDUM OF LEASE. The parties agree that this Lease may not be
recorded but that either party may request that the other execute a Memorandum
of Lease which may be recorded. The Memorandum of Lease may be amended to
reflect the addition of additional land to the Leased Premises. The parties
agree to remove the Memorandum of Lease of record upon the expiration or earlier
termination of this Lease.
SECTION 20.16. RESTRICTION ON ANNOUNCEMENT. Landlord and Tenant agree that
neither shall make any public announcement regarding this Lease until both
parties have mutually reviewed and approved any press releases.
SECTION 20.17. CONTINGENCY. Landlord and Tenant's obligations hereunder are
specifically contingent upon both parties entering into a lease for leased
premises at 4900 Duke Drive and 9370 Mason-Montgomery Road.
- 32 -
<PAGE> 33
IN WITNESS WHEREOF, the parties hereto have fully executed this Lease as of the
day and year first above written.
LANDLORD:
DUKE REALTY LIMITED PARTNERSHIP,
WITNESSES: an Indiana limited partnership
/s/ Naomi Gump
- - ------------------------
Naomi Gump By: Duke Realty Investments, Inc.,
- - ------------------------- its general partner
(Printed)
/s/ Ricena A. Watson
- - ------------------------
Ricena A. Watson By: /s/ James W. Gray
- - ------------------------ -----------------------------------------
(Printed) James W. Gray
Vice President and
General Manager
TENANT:
WITNESSES: BALDWIN PIANO AND ORGAN COMPANY, a
Delaware corporation
/s/ Linda L. Ketteler By: /s/ Karen L. Hendricks
- - ------------------------ ----------------------------------------
Linda L. Ketteler
- - -----------------------
(Printed) Printed: Karen L. Hendricks
-----------------------------------
/s/ Margaret E. Schneider Title: Chairman, Ceo & President
- - ----------------------- -------------------------------------
Margaret E. Schneider
- - -----------------------
(Printed)
STATE OF OHIO )
) SS:
COUNTY OF HAMILTON )
Before me, a Notary Public in and for said County and State, personally
appeared James W. Gray, by me known and by me known to be the Vice President and
General Manager of Duke Realty Investments, Inc., an Indiana corporation, the
general partner of Duke Realty Limited Partnership, an Indiana limited
Partnership, who acknowledged the execution of the foregoing "Office Lease" on
behalf of said partnership.
WITNESS my hand and Notarial Seal this 2 day of July , 1998.
----- ------------
/s/ Ricena A. Watson (Mckee)
----------------------------
Notary Public
------------------------------
(Printed Signature)
My Commission Expires: June 29, 2001
--------------------
My County of Residence: Clermont
--------------------
- 33 -
<PAGE> 34
STATE OF OHIO )
-------------- ) SS:
COUNTY OF CLERMONT )
--------------
Before me, a Notary Public in and for said County and State, personally appeared
KAREN L. HENDRICKS, by me known and by me known to be the CHAIRMAN, CEO &
PRESIDENT of Baldwin Piano and Organ Company, a Delaware corporation, who
acknowledged the execution of the foregoing "Office Lease" on behalf of said
corporation.
WITNESS my hand and Notarial Seal this 30th day of June , 1998.
------ -----------
/s/ Dorothy L. Girkin
------------------------------
Notary Public
------------------------------
(Printed Signature)
My Commission Expires:
--------------------
My County of Residence: Butler
--------------------
- 34 -
<PAGE> 35
EXHIBIT "A-1"
[PHOTOGRAPH OF BUILDING LOCATED AT 4680 GOVERNOR'S POINTE]
<PAGE> 36
EXHIBIT "A"
[FLOOR PLAN - 4680 GOVERNORS HILL SECOND FLOOR]
<PAGE> 37
EXHIBIT "B"
BASE BUILDING IMPROVEMENTS
- - - Building HVAC system installed to Tenant's approved plans in sufficient
capacity to meet all standard office use HVAC requirements; Tenant shall
be responsible for the costs to install HVAC above standard office use to
accommodate tenants computer room.
- - - Building fire alarm, smoke detector and exit lights installed per code.
- - - Electrical distribution modified to Tenant's approved plans.
- - - Building standard horizontal window blinds installed.
- - - 2'x4' 4-tube, energy-efficient fluorescent light fixtures with parabolic
lenses installed and wired per Tenant's approved plans.
- - - 2'x2' revealed edge ceiling tiles and grid installed, 8.5' minimum
ceiling height.
- - - Fire sprinkler system installed and modified to Tenant's approved plans.
- - - All floors shall be smooth finished concrete.
- - - All building exterior columns, curtain walls and core and stairwell walls
shall be insulated as necessary and drywalled, taped and bedded.
<PAGE> 38
EXHIBIT C
---------
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or used for any purpose
other than ingress and egress.
2. No awnings or other projections shall be attached to the outside
walls of the Building. No curtains, blinds, shades or screens shall be attached
to or hung in, or used in connection with, any window or door of the Leased
Premises other than Landlord standard drapes without Landlord's prior written
approval. All electric ceiling fixtures hung in offices or spaces along the
perimeter of the Building must be fluorescent, of a quality, type, design and
bulb color approved by Landlord. Neither the interior nor the exterior of any
windows shall be coated or otherwise sunscreened without written consent of
Landlord.
3. No sign, advertisement, notice or handbill shall be exhibited,
distributed, painted or affixed by any tenant on, about or from any part of the
Leased Premises or the Building without the prior written consent of Landlord.
In the event of the violation of the foregoing by any tenant, Landlord may
remove or stop same without any liability, and may charge the expense incurred
in such removal or stopping to Tenant. Standard interior signs on doors and
directory tablet shall be inscribed, painted or affixed for each Tenant by the
Landlord, and shall be of a size, color and style acceptable to Landlord. The
directory tablet will be provided exclusively for the display of the name and
location of Tenants only, and Landlord reserves the right to exclude any other
names therefrom. Nothing may be placed on the exterior of corridor walls or
corridor doors other than Landlord's standard lettering.
4. The sashes, sash doors, windows, and doors that reflect or admit
light and air into halls, passageways or other public places in the Building
shall not be covered or obstructed by Tenant.
5. The water and wash closets and other plumbing fixtures shall not be
used for any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown therein. All
damages resulting from any misuse of the fixtures shall be borne by the Tenant
who, or whose subtenants, assignees or any of their servants, employees, agents,
visitors or licensees shall have caused the same.
6. No Tenant shall mark, paint, drill into, or in any way deface any
part of the Leased Premises or the Building. No boring, cutting or stringing of
wires or laying of linoleum or other similar floor coverings shall be permitted,
except with the prior written consent of the Landlord and as the Landlord may
direct. Landlord shall direct electricians as to where and how telephone or
telegraph wires are to be introduced. No boring or cutting for wires or
stringing of wires will be allowed without written consent of Landlord. The
location of telephones, call boxes and other office equipment affixed to the
Leased Premises shall be subject to the approval of Landlord.
7. No bicycles, vehicles, birds or animals of any kind (except seeing
eye dogs) shall be brought into or kept in or about the Leased Premises, and no
cooking shall be done or permitted by any Tenant on the Leased Premises, except
microwave cooking, and the preparation of coffee, tea, hot chocolate and similar
items for Tenants and their employees which shall be permitted provided power
shall not exceed that amount which can be provided by a 30 amp circuit. No
Tenant shall cause or permit any unusual or objectionable odors to be produced
or permeate the Leased Premises.
8. The Leased Premises shall not be used for manufacturing or for the
storage of merchandise except as such storage may be incidental to the permitted
use of the Leased Premises. No Tenant shall occupy or permit any portion of the
Leased Premises to be occupied
Exhibit "C"
Page 1 of 3
<PAGE> 39
as an office for the manufacture or sale of liquor, narcotics, or tobacco in any
form, or as a medical office, or as a barber or manicure shop, or an employment
bureau without the express written consent of Landlord. The Leased Premises
shall not be used for lodging or sleeping or for any immoral or illegal purpose.
9. No Tenant shall make, or permit to be made any unseemly or
disturbing noises or disturb or interfere with occupants of this or neighboring
buildings or premises or those having business with them, whether by the use of
any musical instrument, radio, phonograph, unusual noise, or in any other way.
No Tenant shall throw anything out of doors, windows or down the passageways.
10. No Tenant, subtenant or assignee nor any of its servants,
employees, agents, visitors or licensees, shall at any time bring or keep upon
the Leased Premises any inflammable, combustible or explosive fluid, chemical or
substance.
11. No additional locks or bolts of any kind shall be placed upon any
of the doors or windows by any Tenant, nor shall any changes be made in existing
locks or the mechanism thereof. Each Tenant must upon the termination of his
tenancy, restore to the Landlord all keys of stores, offices, and toilet rooms,
either furnished to, or otherwise procured by, such Tenant and in the event of
the loss of keys so furnished, such Tenant shall pay to the Landlord the cost of
replacing the same or of changing the lock or locks opened by such lost key if
Landlord shall deem it necessary to make such changes.
12. All removals or the carrying in or out of any safes, freight,
furniture, or bulky matter of any description must take place during the hours
which Landlord shall reasonably determine from time to time. The moving of safes
or other fixtures or bulky matter of any kind must be done upon previous notice
to the superintendent of the Building and under his supervision, and the persons
employed by any Tenant for such work must be acceptable to Landlord. Landlord
reserves the right to inspect all safes, freight or other bulky articles to be
brought into the Building and to exclude from the Building all safes, freight or
other bulky articles which violate any of these Rules and Regulations or the
Lease of which these Rules and Regulations are a part. The Landlord reserves the
right to prescribe the weight and position of all safes, which must be placed
upon supports approved by Landlord to distribute the weight.
13. No Tenant shall purchase janitorial services from any person or
persons not approved by Landlord.
14. Landlord shall have the right to prohibit any advertising by any
Tenant which, in Landlord's opinion tends to impair the reputation of the
Building or its desirability as an office location, and upon written notice from
Landlord any Tenant shall refrain from or discontinue such advertising.
15. Landlord reserves the right to require all persons entering the
Building between the hours of 6 p.m. and 8 a.m. and at all hours on Sunday and
legal holidays to register with Landlord's security personnel. Each Tenant shall
be responsible for all persons entering the Building at Tenant's invitation,
express or implied. Landlord shall in no case be liable for damages for any
error with regard to the admission to or exclusion from the Building of any
person. In case of an invasion, mob riot, public excitement or other
circumstances rendering such action advisable in Landlord's opinion, Landlord
reserves the right without any abatement of rent to require all persons to
vacate the Building and to prevent access to the Building during the continuance
of the same for the safety of the Tenants and the protection of the Building and
the property in the Building.
16. Any persons employed by any Tenant to do janitorial work or other
work in the Leased Premises shall, while in the Building and outside of the
Leased Premises, be subject to and under the control and direction of the
superintendent of the Building (but not as an agent or
Exhibit "C"
Page 2 of 3
<PAGE> 40
servant of said superintendent or of the Landlord), and Tenant shall be
responsible for all acts of such persons.
17. All doors opening onto public corridors shall be kept closed,
except when in use for ingress and egress.
18. The requirements of Tenant will be attended to only upon
application to the Office of the Building.
19. Canvassing, soliciting and peddling in the Building are prohibited,
and each Tenant shall report and otherwise cooperate to prevent the same.
20. All office equipment of any electrical or mechanical nature shall
be placed by Tenant in the Leased Premises in settings which will, to the
maximum extent possible, absorb or prevent any vibration, noise and annoyance.
21. No air-conditioning unit or other similar apparatus shall be
installed or used by any Tenant without the written consent of Landlord.
22. There shall not be used in any space, or in the public halls of the
Building, either by any Tenant or others, any hand trucks except those equipped
with rubber tires and rubber side guards.
23. No vending machine or machines of any description shall be
installed, maintained or operated upon the Leased Premises without the written
consent of Landlord.
24. The scheduling of Tenant move-ins shall be subject to the
reasonable discretion of Landlord.
25. The Building is a smoke-free Building. Smoking is strictly
prohibited within the Building. Smoking shall only be allowed in areas
designated as a smoking area by Landlord. Tenant and its employees,
representatives, contractors or invitees shall not smoke within the Building or
throw cigar or cigarette butts or other substances or litter of any kind in or
about the Building, except in receptacles placed in it for that purpose.
Landlord may, at its sole discretion, impose a charge against monthly rent of
$50.00 per violation by Tenant or any of its employees, representatives,
contractors or invitees, of this smoking policy.
26. Tenants will see that all doors are securely locked, water faucets,
electric lights and electric machinery are turned off before leaving the
Building.
27. Parking spaces associated with the Building are intended for the
exclusive use of passenger automobiles. Except for intermittent deliveries, no
vehicles other than passenger automobiles may be parked in a parking space
without the express written permission of Landlord.
28. Tenant shall be responsible for and cause the proper disposal of
medical waste, including hypodermic needles, created by its employees.
It is Landlord's desire to maintain in the Building the highest standard of
dignity and good taste consistent with comfort and convenience for tenants. Any
action or condition not meeting this high standard should be reported directly
to Landlord. Your cooperation will be mutually beneficial and sincerely
appreciated. The Landlord reserves the right to make such other and further
rules and regulations as in its judgment may from time to time be needful for
the safety, care and cleanliness of the lease premises, and for the preservation
of good order therein.
Exhibit "C"
Page 3 of 3
<PAGE> 41
EXHIBIT "D"
LIST OF BALDWIN COMPETITORS
Greentree Financial Services or its parent Conseco Financial
Any company whose primary business is the manufacture, sale or marketing of
musical keyboard instruments (including but not limited to Steinway, Yamaha,
Bosendofer, Kawai, Young Chang, Roland, Technics, Karzweil and Korg)
- D-1 -
<PAGE> 42
EXHIBIT "E"
[FLOOR PLAN - 4680 GOVERNORS POINTE SECOND FLOOR]
- D-2 -
<PAGE> 43
EXHIBIT "F"
SCHEDULE OF UNAMORTIZED TENANT FINISH
IMPROVEMENT COSTS & ALLOWANCES, AND
UNAMORTIZED LEASING COMMISSIONS AT THE END OF
YEAR FIVE
4680 PREMISES UNAMORTIZED PORTION
COMPONENT ORIGINAL COST AFTER YEAR FIVE
TI Costs &
Allowances: $494,270.00 $307,422.25
Leasing
Commissions: $164,501.61 $102,315.45
-----------
Total Unamortized
Costs: $409,737.70
===========
OFFICE
ASSUMPTIONS: 1) RENTABLE SQUARE FEET = 28,239 RSF
2) AMORTIZATION FACTOR = 10%
- F-1 -
<PAGE> 44
EXHIBIT "G"
Page 1 of 3
CLEANING SPECIFICATIONS
FIVE (5) NIGHTS PER WEEK
RESTROOMS
- - ---------
A. DAILY
Spot clean all doors, partitions and walls.
Empty waste paper and sanitary napkins receptacles.
Restock or refill towel, tissue and soap dispensers.
Clean and sanitize all commodes, urinals and wash basins inside and
out, top and bottom.
Clean and polish mirrors and other brightwork.
Clean and polish all chrome fixtures including faucets, flushers and
wash basin traps and piping.
Clean and sanitize sink counters.
Dust mop and damp mop floors using a quality germicidal detergent.
Vacuum any carpeted areas.
Dust partition tops.
B. WEEKLY
Dust entry door, ventilating louvers and tops of doors.
Dust door frames, hinges and partition fasteners.
Clean baseboard grouting to eliminate any mop water residue.
Clean entry door kickplates.
Floor mop. restroom floors using a quality germicidal detergent.
Spray buff vat floor covering.
Wet mop all janitor closets.
C. MONTHLY
Dust and clean all exhaust fan belts.
Damp dust door frames, hinges and partition fasteners.
D. BI-MONTHLY
Wash all ceramic tile walls.
Machine scrub all ceramic tile floors.
Machine scrub and refinish all vat floor covering.
TENANT OFFICE AREAS
- - -------------------
A. DAILY
Vacuum sweep all rugs and carpeting, under moveable furniture and open
areas.
Dust and damp mop all hard surface flooring.
Spot clean all doors, door frames and walls.
Remove waste paper and normal office refuse through facilities provided
by building.
Dust all desk tops, lamps and other office furniture.
Damp wipe and sanitize telephones.
Damp wipe all ashtrays.
Clean and polish all drinking fountains and water coolers.
Spot clean interior glass.
B. TWICE WEEKLY
High dustings; all wall hangings, clocks, decorations, partition
tops, chalkboard top, file cabinets and book shelves.
Dust and wipe clean all air handling converters and window sills.
<PAGE> 45
EXHIBIT "G"
Page 2 of 3
Spot clean all file cabinets and desks.
Low dusting; all desks, chairs and other office furniture, as well
as dust and wipe clean all baseboards.
C. WEEKLY
Dust all chairs, vacuum all cloth office furniture.
Vacuum hard to reach areas, under desks, between desks and walls,
behind file cabinets, etc.
Vacuum all carpet at the base of the wall.
Clean all coat racks and closets.
Dust all door frames and binges.
D. MONTHLY
Clean the outside of all wastebaskets.
Damp wipe all door frames and hinges.
Machine scrub and refinish hard surface flooring.
Dust and clean all overhead vents and air diffusers.
E. QUARTERLY
Dust all vertical surfaces and walls, partitions and other surfaces not
previously mentioned.
Dust window blinds.
F. SEMI-ANNUALLY
Strip and refinish all hard surface flooring.
G. ANNUALLY
Clean all standard building lighting fixtures.
COMMON AREAS
- - ------------
A. DAILY
Vacuum sweep all rugs and carpeting.
Check stairwells for debris and dust mop if necessary.
Dust mop and damp mop any hard surface flooring.
Dust baseboards.
Spot clean stairwell doors.
Spot clean all walls.
Wipe clean all elevator call panels.
Vacuum all carpeted stairwells.
B. WEEKLY
Vacuum all carpet at the base of the wall.
Dust and damp dust fire equipment boxes, fire extinguishers, fire bells
and exit lights.
Damp dust fire stand pipes and valves.
Spot clean stairwell walls and door kickplates.
Damp dust stairwell railings, door frames and lighting fixtures.
Damp mop landings and steps of stairwells.
C. QUARTERLY
Shampoo carpeting in halls and elevator lobbies.
MAIN LOBBY
- - ----------
<PAGE> 46
EXHIBIT "G"
Page 3 of 3
A. DAILY
Vacuum elevator cabs and thresholds.
Clean and polish elevators cabs and the inside and outside of elevator
doors.
Clean ashtrays inside and out.
Clean and polish entry glass, door frames and handles inside an out.
Spot clean retail glass.
Damp mop and spray buff lobby floor.
B. WEEKLY
Clean walls where required.
C. MONTHLY
Recoat lobby floor.
D. SEMI-ANNUALLY
Strip and refinish lobby floor.
<PAGE> 47
EXHIBIT "H"
[PLAN FOR PARKING LOT FOR 4680 BUILDING GOVERNOR'S POINTE]
<PAGE> 1
Exhibit 10.3
AMENDED AND RESTATED
INVENTORY PURCHASE AND CONSIGNMENT AGREEMENT
This AMENDED AND RESTATED INVENTORY PURCHASE AND CONSIGNMENT AGREEMENT
("Agreement") is executed with an effective date of June 30, 1998, by and
between BALDWIN PIANO & ORGAN COMPANY, a Delaware corporation, located at 422
Wards Corner Road, Loveland, OH 45140 ("Baldwin"), and DEUTSCHE FINANCIAL
SERVICES CORPORATION, a Nevada corporation, with its principal place of business
located at 655 Maryville Centre Drive, St. Louis, Missouri 63141 ("DFS").
RECITALS
Baldwin wishes to supply certain colleges and universities with Baldwin
manufactured pianos for use by the colleges and universities ("University Demo
Program"). Baldwin also wishes maintain a stock of pianos for use in concert
halls by musical artists ("Concert Demo Program"). At the request of Baldwin,
DFS is willing to purchase the pianos which Baldwin has loaned or in the future
intends to loan to the colleges and universities (each a "University") under the
University Demo Program ("University Consigned Goods") and concert halls and/or
musical artists under the Concert Demo Program ("Concert Consigned Goods") and
consign such goods back to Baldwin (University Consigned Goods and Concert
Consigned Goods being collectively referred to as "Consigned Goods").
NOW, THEREFORE, in consideration of the premises, of the promises
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Baldwin and DFS agree as follows:
1. PURCHASE OF GOODS.
1.1 GENERAL TERMS. Subject to the terms of this Agreement, DFS will
purchase from Baldwin: (a) University Consigned Goods for the wholesale
price at which Baldwin sells similar goods to its retail dealers in the
ordinary course of business; and (b) Concert Consigned Goods for sixty
percent (60%) of the wholesale price at which Baldwin sells similar
goods to its retail dealers in the ordinary course of business ((a) and
(b) each the "Invoice Price") after receipt of an invoice to DFS listing
the Consigned Goods that Baldwin is selling to DFS ("Invoice"), and
consign such Consigned Goods back to Baldwin; provided, however, that
the aggregate Invoice Price of all Consigned Goods for which DFS has not
received payment from Baldwin pursuant to SECTION 10 will at no time
exceed the sum of Eleven Million Dollars ($11,000,000.00) ("Consignment
Limit"). Title to any particular item of Consigned Goods will transfer
from Baldwin to DFS and thereafter remain in DFS and will not pass back
to Baldwin, unless Baldwin purchases such Consigned Goods from DFS as
provided in SECTION 10. DFS may, at any time, elect not to purchase
Consigned Goods from Baldwin and consign such Consigned Goods back to
Baldwin if Baldwin is in default of its obligations to DFS. Baldwin
acknowledges that neither the execution of this Agreement nor the
consignment of any goods by DFS to Baldwin hereunder will in any way
bind or obligate DFS to purchase or consign further goods to Baldwin,
and it will be in DFS' sole discretion whether or not to purchase or
consign any goods to Baldwin.
1.2 CONDITIONS PRECEDENT. Prior to DFS funding the purchase of any
goods from Baldwin, DFS must obtain, to the satisfaction of DFS, the
following:
(a) a fully executed Uniform Commercial Code financing
statement(s) for all appropriate jurisdictions evidencing a
security interest granted by Baldwin to DFS in the Consigned
Goods pursuant to SECTION 9;
(b) a fully executed Intercreditor Agreement with Fifth Third
Bank and its participants or co-lenders under loan documents
with Baldwin;
(c) a fully executed original of this Agreement;
(d) a fully executed terms letter setting forth such other terms
as are deemed appropriate by DFS;
(e) such other and further documentation as deemed necessary by
DFS.
<PAGE> 2
1.3 Representations and Warranties. In addition to all other
representations, warranties and covenants whatsoever, express or
implied, which Baldwin gives to DFS in connection with the Consigned
Goods and their sale to DFS or any third party, by sending DFS an
Invoice, Baldwin further expressly represents and warrants to DFS that:
(a) it has full right, title and power to sell the Consigned
Goods to DFS;
(b) upon payment of the full purchase price for the Consigned
Goods, DFS will be vested with absolute legal and beneficial
title to the Goods free and clear of all liens, encumbrances
or claims of whatsoever kind in respect of the Consigned
Goods;
(c) on the date of DFS' purchase, the Consigned Goods will be
free from defects, of merchantable quality and fit for any
purpose held out by Baldwin or made known to Baldwin by a
University, concert hall or musical artist;
(d) the Consigned Goods will be the subject of a bona fide letter
agreement regarding the University Demo Program between
Baldwin and a University substantially similar to EXHIBIT B
attached hereto;
(e) Baldwin's Invoice to DFS for the Consigned Goods will include
DFS' approval number for such Consigned Goods, the name and
address of the University to which University Consigned Goods
were shipped, the name and address of the concert hall or
retail dealer to which Concert Consigned Goods were shipped
and (except with respect to University Consigned Goods placed
with a University prior to the date of this Agreement and
identified on EXHIBIT A attached hereto and Concert Consigned
Goods placed with a concert hall or retail dealer under the
Concert Demo Program prior to October 31, 1998 and identified
on Exhibit A-1 attached hereto) the date on which the
Consigned Goods were delivered. Baldwin will deliver such
Invoice to DFS within ten (10) days of the date of the
delivery of the Consigned Goods to a University, concert hall
or retail dealer.
2. BALDWIN AS AGENT FOR DFS. Subject to DFS' right, at any time by
notice to Baldwin, to limit, vary or revoke the appointment under this Section
with immediate effect, and provided that Baldwin is not in default under the
terms of this Agreement, DFS appoints Baldwin as its agent and on its behalf to:
(a) sell such Consigned Goods to any third party, including any retail dealer,
in accordance with the terms set forth in SECTION 5 herein; and, (b) bill and
collect all amounts due from the purchaser of such Consigned Goods and remit the
Invoice Price to DFS in accordance with SECTION 10. This appointment will not be
deemed to allow Baldwin to incur any liability or obligation on behalf of DFS.
Title to such Consigned Goods will pass directly from Baldwin to DFS and from
DFS to a subsequent purchaser for value. Baldwin will be responsible for all
costs of handling, storage, selling and delivering the Consigned Goods to a
University, concert hall, retailer and any purchaser.
3. CONDITION OF CONSIGNED GOODS. Baldwin agrees that: (a) DFS will not
be liable if, with or without cause, Baldwin fails to deliver any Consigned
Goods at the time or in a condition acceptable to a University, concert hall or
musical artist; (b) DFS will not be liable to Baldwin, any University, concert
hall, musical artist, any retail dealer or any other party for the costs and
expenses of reconditioning any Consigned Goods or for any parts, equipment or
accessories placed upon or attached to any of the Consigned Goods.
4. NO WARRANTIES BY DFS. DFS AND ITS AGENTS MAKE NO WARRANTIES,
REPRESENTATIONS, COVENANTS, UNDERTAKINGS OR GUARANTEES OF ANY KIND REGARDING THE
CONSIGNED GOODS INCLUDING: (a) THE VALUE, QUALITY, CONDITION, OPERATION,
DESCRIPTION, MERCHANTABILITY OR FITNESS FOR USE OR PURPOSE OF THE CONSIGNED
GOODS OR ANY PART THEREOF; (b) LATENT, INHERENT OR OTHER DEFECTS (WHETHER OR NOT
DISCOVERABLE); or (c) ANY INFRINGEMENT OF ANY PATENT, COPYRIGHT, DESIGN, OR
OTHER PROPRIETARY RIGHTS.
5. TITLE TO CONSIGNED GOODS. Title to the Consigned Goods will always be
vested in DFS, except as otherwise provided in this Agreement. Title to the
Consigned Goods will pass directly from DFS to such persons or entities
<PAGE> 3
who purchase the Consigned Goods from Baldwin. Nothing contained in this
Agreement will, in any sense, be considered as constituting a sale of the
Consigned Goods to Baldwin, or as giving Baldwin an interest of any kind
whatsoever in the Consigned Goods, unless Baldwin purchases the Consigned Goods
from DFS as provided in SECTION 10. Baldwin will not lend, rent, mortgage,
pledge as security, or encumber the Consigned Goods. Baldwin will take all
actions necessary for DFS to obtain from all of Baldwin's secured creditors a
Subordination Agreement, Intercreditor Agreement or Uniform Commercial Code
partial release satisfactory to DFS so that DFS has clear title and first
priority security interest in the Consigned Goods within one hundred eighty
(180) days after execution of this Agreement. If within one hundred eighty (180)
days after execution of this Agreement DFS has not obtained from all of
Baldwin's secured creditors a Subordination Agreement, Intercreditor Agreement
or Uniform Commercial Code partial release satisfactory to DFS so that DFS has
clear title and first priority security interest in the Consigned Goods, Baldwin
will pay DFS in full the aggregate amount of the Invoice Price for all Consigned
Goods.
6. RISK OF LOSS. Baldwin will be responsible for all risks of loss,
destruction, damage and diminution in value to the Consigned Goods by theft,
fire or otherwise, whether or not covered by insurance from and after the date
on which the Consigned Goods are delivered to a University, concert hall,
musical artist or retail dealer, and for all defects in the Consigned Goods,
whether for parts, workmanship or otherwise.
7. RIGHT OF SALE. Baldwin is hereby authorized to sell the University
Consigned Goods on behalf of DFS, subject to the terms of the specific
University Demo Program with each University, subject to the terms of any
Concert Demo Program with any concert hall or retail dealer, and subject to
SECTION 10, for any amount. Baldwin will sell such Consigned Goods in Baldwin's
name and at Baldwin's cost and expense. Baldwin is not authorized or empowered
to assume or create any obligation whatsoever, express or implied, on behalf or
in the name of DFS, or to bind DFS in any manner, or make any representation,
warranty, or commitment on behalf of DFS. Baldwin will: (a) bill and collect all
amounts due from the purchaser of such Consigned Goods; (b) keep the a portion
of the sale proceeds equal to the Invoice Price as the property of DFS; (c) make
entries in its books showing that the Consigned Goods are held for the account
of DFS; and, (d) on or before the tenth (10th) day of each month, deliver to DFS
a true and complete report, in the form attached to this Agreement as EXHIBIT C,
of Baldwin's sales of Consigned Goods for the previous month.
8. STATEMENTS OF TRANSACTION. After DFS receives the invoice for the
Consigned Goods which DFS purchases from Baldwin, DFS will send Baldwin a
Statement of Transaction, which will: (a) identify such Consigned Goods; (b)
state the Invoice Price to DFS for the Consigned Goods; and (c) disclose the
date of Baldwin's shipment of Consigned Goods to a University ("Invoice Date")
and the date by which the Invoice Price for the Consigned Goods must be remitted
to DFS. Unless Baldwin notifies DFS in writing of any objection within fifteen
(15) days after a Statement of Transaction is mailed to Baldwin: (i) Baldwin
will have agreed that the Consigned Goods referenced in such Statement of
Transaction are being from Baldwin and consigned back to Baldwin at Baldwin's
request; (ii) the amount shown on such Statement of Transaction will be: (A) an
account stated, and (B) paid to DFS pursuant to SECTION 10; (iii) Baldwin will
have agreed to the terms shown on such Statement of Transaction; and, (iv) such
Statement of Transaction will be incorporated herein by reference, will be made
a part hereof as if originally set forth herein, and will constitute an addendum
hereto.
9. GRANT OF SECURITY INTEREST. Baldwin and DFS agree that this Agreement
reflects a sale and consignment of inventory between Baldwin and DFS.
Nevertheless, in order to protect DFS' interests in the Consigned Goods in the
event that any court of competent jurisdiction determines that this Agreement
and the relationship between Baldwin and DFS constitutes a loan to Baldwin from
DFS, Baldwin hereby grants DFS a security interest in all of Baldwin's current
and future inventory of musical instruments, including, without limitation,
acoustic pianos and grand pianos, now or hereafter purchased from, and consigned
to, Baldwin from DFS, and all returns, repossessions, exchanges, substitutions,
replacements, attachments, parts, accessories, and accessions thereto, and all
accounts, contract rights, chattel paper, security agreements, instruments,
deposit accounts, reserves, documents, general intangibles arising out of or
related thereto.
10. PAYMENT TO DFS. Baldwin will immediately pay DFS the Invoice Price
owed to DFS for each item of Consigned Goods after Baldwin sells the Consigned
Goods and collects the purchase price from the purchaser of such Consigned Goods
(other than a retail dealer who purchases the Consigned Goods with financing
from DFS); provided, however, that if Baldwin does not sell the Consigned Goods
and collect the purchase price from the purchaser within three hundred ninety
five (395) days after the earlier of (i) the date such Consigned Goods were
first loaned to a University under the
<PAGE> 4
University Demo Program, or to a concert hall, musical artist or retail dealer
under the Concert Demo Program, and (ii) the Invoice Date for such Consigned
Goods ("Consignment Period"), Baldwin will, on the last day of the Consignment
Period, purchase such Consigned Goods from DFS for an amount equal to the
Invoice Price. Baldwin will also immediately pay DFS the Invoice Price for any
Consigned Goods which are lost, stolen, damaged, destroyed or for which the
purchase price payable by a purchaser is less than the Invoice Price. Baldwin
will make all payments to DFS at DFS' address stated above, unless Baldwin is
otherwise notified in writing by DFS. Any checks or other instruments delivered
to DFS under this Agreement will constitute conditional payment until the funds
represented by such instruments are actually received by DFS.
11. TAXES. Baldwin will remain liable for, pay and administer all
sales, use and property tax compliance with respect to the purchase, sale,
resale and use, storage and possession of the Consigned Goods.
11.1 COLLECTIONS/REMITTANCES. Baldwin will: (a) collect and remit to the
appropriate taxing jurisdiction when due the applicable sales and use
taxes; (b) remit to each appropriate taxing jurisdiction on behalf of
DFS when due, but out of Baldwin's own funds and incorporated in
Baldwin's normal payments, all personal property and ad valorem taxes
and all other fees, charges and licenses, in each case arising out of or
related to the purchase, sale, resale, use, storage or possession of the
Consigned Goods or from the adding of value to the Consigned Goods
(individually a "Tax" and collectively "Taxes"); and (c) maintain
documentation relating to the Taxes for the Consigned Goods separate
from that other goods or services provided by Baldwin to its customers.
11.2 FRANCHISE TAXES. Baldwin will indemnify DFS for an amount equal to
the franchise liabilities incurred by DFS in each taxing jurisdiction
arising from ownership of the inventory under this agreement at year-end
on DFS' books and records. DFS acknowledges its responsibilities of
supporting this tax due in a reasonable format and time frame for
approval by Baldwin.
11.3 INTEREST/PENALTIES. If any interest, penalty, or late fee is
assessed or becomes due by DFS as a result of a late payment of any
sales, use, or property taxes as a direct result of Baldwin' failure to
timely comply, Baldwin will indemnify DFS for any such charges. Both
parties shall have the right to dispute any such charges on a
jurisdictional basis providing that there is reasonable legal basis to
dispute.
11.4 RECORDS. Baldwin will maintain sufficiently detailed records to
readily ascertain and advise DFS in writing of all purchases and sales
of Consigned Goods and all associated Taxes for each state and for each
political subdivision thereof. The disclosures are limited to the
wholesale price pertaining to the Consigned Goods and not Baldwin' sale
price to its customers. Baldwin will, (a) within forty-five (45) days
following the end of each calendar quarter, and (b) within forty-five
(45) days after each request by DFS, provide DFS with information
reasonably required and relating to all purchase and sales of Consigned
Goods and each Tax paid or payable, if then known, or if not then known
a good faith estimate thereof, ("Tax Information"). Baldwin will provide
all Tax Information for both the then current or just completed calendar
quarter and calendar year-to-date basis.
11.5 AUDITS. Baldwin and DFS each reserve the right to dispute any
assessments relating to the Consigned Goods imposed on either Baldwin or
DFS. Both parties agree that audits for sales, use, or property taxes
relating to the Consigned Goods will be conducted and defended by
Baldwin as agent of DFS since Baldwin is the party remitting the taxes
to the taxing authorities. Baldwin shall pay, from its own funds, any
such agreed upon tax, interest or penalties, whether assessed upon
Baldwin or DFS, as a result of any sales, use, property or franchise tax
audits relating to the Consigned Goods. DFS will cooperate with Baldwin
regarding any such audit to the extent DFS reasonably believes the
specific information or action(s) requested by Baldwin are necessary.
12. DEFAULT AND REMEDIES.
12.1 EVENTS OF DEFAULT. Any of the following events will constitute a
default under this Agreement: (a) Baldwin or DFS breaches any of the
terms, warranties or representations contained in this Agreement or in
any other agreement executed between
<PAGE> 5
DFS and Baldwin; (b) any representation, statement, report or
certificate made or delivered by Baldwin or DFS or any of their
representatives, employees, agents is not true and correct; (c) Baldwin
fails to pay any of the liabilities or indebtedness owed to DFS under
this Agreement or any other agreement between DFS and Baldwin when due
and payable; (d) DFS does not obtain from all of Baldwin's secured
creditors a Subordination Agreement, Intercreditor Agreement or Uniform
Commercial Code partial release satisfactory to DFS so that DFS has
clear title and first priority security interest in the Consigned Goods
within one hundred eighty (180) days after execution of this Agreement;
(e) Baldwin becomes in default in the payment of any liability or
performance of any obligation owed to any third party; (f) a judgment
issues on any money demand against Baldwin; (g) an attachment, sale or
seizure is issued on any money demand against Baldwin; (h) Baldwin
ceases or suspends its business; (i) Baldwin makes a general assignment
for the benefit of creditors; (j) Baldwin becomes insolvent or
voluntarily or involuntarily becomes subject to the Federal Bankruptcy
Code, state insolvency laws or any act for the benefit of creditors; (k)
any receiver is appointed for any of the assets of Baldwin; (l) Baldwin
materially misrepresents its financial condition; (m) Baldwin is
hereafter acquired by a corporation, dissolved, merged into another
corporation, consolidated into another corporation or otherwise changes
its legal entity; (n) DFS determines, in its sole reasonable discretion,
that the net worth of Baldwin has materially decreased, and Baldwin has
been unable, within the time period prescribed by DFS, to either provide
DFS with collateral in a form and substance satisfactory to DFS or to
reduce Baldwin's total indebtedness owed to DFS under this Agreement; or
(o) DFS reasonably determines that it is insecure with respect to the
payment of Baldwin's obligations owed to DFS under this Agreement.
12.2 REMEDIES. In the event of a default, DFS may, at any time at its
election without notice or demand to Baldwin, do any one or more of the
following: (a) declare immediately due and payable all or any part of
the aggregate Invoice Price of all Consigned Goods for which DFS has not
received payment (whether or not then due); (b) take possession of the
Consigned Goods in Baldwin's possession (and Baldwin agrees, upon demand
of DFS, to assemble the Consigned Goods and make them available to DFS
at a place reasonably convenient to both parties); and/or (c)
discontinue the purchase and consignment of any Consigned Goods to
Baldwin under this Agreement. If DFS takes any legal action to recover
possession of the Consigned Goods or any proceeds from the sales
thereof, or to recover any sums due DFS hereunder, Baldwin will bear all
DFS' attorneys' fees and costs in connection therewith. Baldwin hereby
waives any right to notice and hearing under Chapter 903a of the
Connecticut General Statutes, or as otherwise allowed by any state or
federal law, with respect to any prejudgment remedy which DFS may elect
to pursue in the event of Baldwin's default under this Agreement.
13. INDEMNIFICATION Baldwin does, for itself, its successors and
assigns, covenant and agree that it shall and does indemnify, defend and hold
harmless DFS, and all of its present and future parent, subsidiary and
affiliated companies, and their officers, directors, employees and agents, as
well as their heirs, administrators, executors, successors and assigns, and all
other persons, partnerships and corporations now or hereafter having any
relationship with DFS (other than Baldwin) directly or indirectly relating to
DFS' financing operations, from and against all losses, costs, fees, actions,
causes of action, suits, claims, demands, judgments, liens and expenses
(including without limitation, all attorneys' fees, court costs and fees) of
whatever kind or nature, whether arising under law or in equity, whether for
personal injury, loss of use or service, lost profits, interruption of business,
property loss or otherwise, in any manner relating directly to, or arising from
or as a result of: (a) DFS' business or financing relationship with Baldwin
under this Agreement or any subsequent or substituted agreement; (b) any taxes
which DFS owes with respect to the Consigned Goods (whether in regard to
personal property or ad valorem taxes, sales or use taxes, franchise taxes or
otherwise other than income taxes); (c) any defect, deficiency or inadequacy
whatsoever in the Consigned Goods or in their use or performance, including any
claim for economic or consequential loss or products liability claims relating
to the Consigned Goods or any enhancements thereto (whether due to manufacturing
or installation defects, failure to warn of potential hazards, design defects,
claims or defenses asserted by any buyer of the Consigned Goods, or otherwise);
(d) intellectual property claims (whether for patent, copyright or trademark
infringement or unauthorized use or sale or otherwise); (e) consumer protection
or deceptive trade practice claims; (f) antitrust claims; (g) any claims,
demands or actions made or brought by any third party for any injury or damage
occurring as a result of the use or presence of the Consigned Goods; (h) the
breach of any warranty or representation contained in this Agreement or given by
Baldwin to any person or entity in relation to the Consigned Goods; (i) any act,
omission or delay of Baldwin or its employees, agents or contractors in
shipping, supplying, delivering, repairing or replacing any Consigned Goods to
any third party; or (j) any other claims relating to the Consigned Goods,
Baldwin's act or failure to act with respect to the Consigned Goods or DFS'
performance of its obligations under this Agreement; whether hereafter known or
unknown, suspected or unsuspected, except and to the extent that the same arise
from the willful and wanton misconduct of DFS.
<PAGE> 6
14. TERMINATION AND SURVIVAL. DFS or Baldwin may at any time terminate
this Agreement upon ninety (90) days prior written notice to the other party
(except that this Agreement may be terminated immediately by DFS in the exercise
of its rights and remedies in the event of a default by Baldwin), but
termination will not affect any rights or obligations with respect to any
Consigned Goods purchased or committed to be purchased by DFS prior to the
termination, even though such purchases will not be completed until after the
date of termination.
15. AMENDMENTS, WAIVERS. This Agreement may not be altered or amended
except by an agreement in writing signed by Baldwin and DFS. If DFS at any time
dispenses with any requirements specified in this Agreement, such dispensation
may be revoked by DFS at any time and will not be deemed to constitute a waiver
of any such requirement subsequent thereto. DFS' failure to require strict
performance by Baldwin of any undertakings, agreements, covenants, warranties
and representations will not waive, affect or diminish any right of DFS
thereafter to demand strict compliance and performance. Any waiver by DFS of any
default will not waive or affect any other default by Baldwin under this
Agreement, whether such default is prior or subsequent to such other default and
whether of the same or a different type. None of the undertakings, agreements,
warranties and representations of Baldwin contained in this Agreement and no
default will be deemed waived by DFS unless such waiver is by a written
instrument specifying such waiver signed by an officer of DFS and directed to
Baldwin.
16. NO ORAL AGREEMENTS. There are no oral or unwritten agreements
between DFS and Baldwin regarding the subject matter hereof. Baldwin and DFS
acknowledge and agree that all agreements and understandings between them
regarding the subject matter hereof are set forth in this Agreement and any
terms letters executed in connection herewith (as the same may be revised from
time to time without necessitating an amendment of this Agreement) or in any
other writing between the parties relating hereto.
17. SEVERABILITY. If any provision of this Agreement or the application
thereof is held invalid or unenforceable, the remainder of this Agreement will
not be affected thereby, the provisions of this Agreement being severable in any
such instance.
18. BINDING EFFECT. This Agreement will be binding upon and inure to the
benefit of DFS and Baldwin and their respective successors and assigns but
neither party will have the right to assign this Agreement without the prior
written consent of the other.
19. SECTION TITLES. The Section titles used in this Agreement are for
convenience only and do not define or limit the contents of any Section.
20. BINDING ARBITRATION. Any controversy or claim arising out of or
relating to this Agreement, the relationship resulting in or from this
Agreement, the breach of any duties hereunder or any other relationship,
transaction or dealing between the parties (collectively "Disputes") will be
settled by binding arbitration in accordance with the Commercial Arbitration
Rules of The American Arbitration Association, 140 West 51st Street, New York,
New York 10020-1203. Except as otherwise stated herein, all notices, arbitration
claims, responses, requests and documents will be sufficiently given or served
if mailed or delivered: (a) to DFS at 655 Maryville Centre Drive, St. Louis,
Missouri 63141-5832, Attention: General Counsel; and (b) to any other party at
the address specified herein; or such other address as the parties may specify
from time to time in writing. The parties agree that all arbitrators selected
will be attorneys with at least five (5) years secured transactions experience.
Any award rendered by the arbitrator(s) may be entered as a judgment or order
and confirmed or enforced by either party in any state or federal court having
competent jurisdiction thereof. If either party brings or appeals any judicial
action to vacate or modify any award rendered pursuant to arbitration or opposes
the confirmation of such award and the party bringing or appealing such action
or opposing confirmation of such award does not prevail, such party will pay all
of the costs and expenses (including, without limitation, court costs,
arbitrators fees and expenses and attorneys' fees) incurred by the other party
in defending such action. Additionally, if either party brings any action for
judicial relief in the first instance without pursuing arbitration prior
thereto, the party bringing such action for judicial relief will be liable for
and will immediately pay to the other party all of the other party's costs and
expenses (including, without limitation, court costs and attorneys' fees) to
stay or dismiss such judicial action and/or remove it to arbitration. The
failure of either party to exercise any rights granted hereunder shall not
operate as a waiver of any of those rights. THE LAWS OF THE STATE OF OHIO WILL
GOVERN THIS AGREEMENT AND ALL TRANSACTIONS HEREUNDER AS TO INTERPRETATION,
<PAGE> 7
ENFORCEMENT, VALIDITY, CONSTRUCTION, EFFECT AND IN ALL OTHER RESPECTS; PROVIDED,
HOWEVER, THAT THE FEDERAL ARBITRATION ACT ("FAA"), TO THE EXTENT INCONSISTENT,
WILL SUPERSEDE THE LAWS OF SUCH STATE AND GOVERN. This Agreement concerns
transactions involving commerce among the several states. The arbitrators will
not be empowered to award punitive damages. The agreement to arbitrate will
survive termination of this Agreement. IF THIS AGREEMENT IS FOUND TO BE NOT
SUBJECT TO ARBITRATION, EACH PARTY IRREVOCABLY SUBMITS TO THE JURISDICTION OF
THE COURTS LOCATED WITHIN SUCH STATE AND AGREE THAT ALL LEGAL PROCEEDINGS WILL
BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE WITHOUT A JURY. BALDWIN
AND DFS WAIVE ANY RIGHT TO A JURY TRIAL IN ANY SUCH PROCEEDING.
21. ENTIRE AGREEMENT. This Agreement, together with (a) original,
facsimile or electronically transmitted invoices from Baldwin, (b) Statements of
Transaction (or similar statements from DFS to Baldwin from time to time
regarding the description of Consigned Goods), (c) monthly or other billing
statements from DFS to Baldwin, and (c) credit memos on the Consigned Good,
constitutes the entire Agreement between the Baldwin and DFS pertaining to the
subject matter hereof and supercedes all prior agreements, understandings,
negotiations and discussions, whether oral or written, with respect to the
subject matter hereof.
THIS CONTRACT CONTAINS BINDING ARBITRATION AND JURY WAIVER PROVISIONS.
----------------------------------------------------------------------
BALDWIN PIANO & ORGAN COMPANY
ATTEST:
/s/ Ronald W. Kruse By: /s/ Perry H. Schwartz
- - --------------------------------- --------------------------------
Secretary Its: EVP and CFO
-------------------------------
Print Name: Ronald W. Kruse Print Name: Perry H. Schwartz
--------------------- -----------------------
Accepted October 28, 1998.
-----------------
DEUTSCHE FINANCIAL SERVICES CORPORATION
By: /s/ Richard Endicott
------------------------------
Its: Regional Vice President
-----------------------------
Print Name: Richard Endicott
---------------------
<PAGE> 8
EXHIBIT A
---------
The University Consigned Goods on loan under the University Demo Program
between Baldwin and Universities are as follows:
CONSIGNED GOODS DATE LOANED NAME OF UNIVERSITY
SERIAL NUMBER TO UNIVERSITY AND ADDRESS
- - -----------------------------------------------------------
<PAGE> 9
EXHIBIT A-1
-----------
The Consigned Goods on loan under the Concert Demo Program between
Baldwin and concert halls, musical artists and retial dealers are as follows:
CONCERT CONSIGNED GOODS NAME OF AND ADDRESS OF
SERIAL NUMBER DATE LOANED CONCERT HALL OR RETAIL DEALER
- - ----------------------------- ----------------------------------------
<PAGE> 10
EXHIBIT B
---------
Standard Form of Letter For University Demo Program
[To Be Supplied by Baldwin]
<PAGE> 11
EXHIBIT C
---------
Form of Monthly Report of Sales of Consigned Goods
[To Be Supplied by DFS]
<PAGE> 1
Exhibit 19
TO OUR SHAREHOLDERS
November 6, 1998
Third-quarter net sales rose 8 percent to $34.3 million, up from $31.6
million last year before the impact of a $2.3 million non-recurring item.
Including last year's non-recurring item, related to the phase-out of the
Company's dealer consignment sales program, third-quarter 1997 sales were $33.9
million.
Net earnings for the third quarter were $93,000, or 3 cents per diluted
share, compared with $1.1 million, or 30 cents per diluted share, a year
earlier. Last year's third-quarter earnings included non-recurring income of
$79,000, or 2 cents per diluted share.
For the first nine months of 1998, the Company reported net income of
$634,000, or 18 cents per diluted share, on sales of $98.1 million. A year ago,
the Company earned $2.9 million, or 85 cents per diluted share, on sales of
$103.6 million. Results for the first nine months of 1997 include non-recurring
income of $1.1 million, or 30 cents per diluted share. Excluding last year's $15
million of non-recurring sales, sales for the nine-month period rose 11 percent.
As previously disclosed, the financial crisis in Asia has prompted our
competitors to step up imports of low-end pianos in a very major way. This has
put significant downward pressure on retail prices and profitability in the
high-volume vertical piano segment of our business.
In the face of this competitive threat, we adopted a strategy designed to
preserve the market share and showroom visibility that is essential to the
Company's long-term success. That strategy appears to be working so far. While
low-priced competing pianos have pared margins considerably, unit volume in
vertical pianos is up sharply from second-quarter levels. We suspect burgeoning
inventories of Asian pianos will continue to exert pressure on margins and sales
in the fourth quarter.
Sales of our high-end grand pianos, the largest share of our revenues,
remained strong, a tribute to the great success of our ConcertMaster electronic
player system, which has been very well received by our high-end customers.
Late in the third quarter, we began dealer shipments of a new line of grand
pianos featuring super high-gloss polyester finishes, an alternative to the
traditional lacquer finish. Early indications are that demand for this new
finish is strong, and we see an excellent opportunity here to dramatically
expand the Company's share of the high margin grand piano market.
Third-quarter Contract Electronics sales grew 10 percent to $10 million, up
from $9 million a year ago. New contracts represented 85 percent of this growth.
However, Contract Electronics' rapid growth also triggered supply constraints
and additional costs required to fulfill existing customer demand on a timely
basis. Beyond 1998, new growth will be more strictly managed with a focus on
profitability and our ability to meet existing
<PAGE> 2
customer commitments. By successfully targeting specific market niches that are
less closely tied to changing economic conditions, this business should continue
to grow at a healthy pace.
Third-quarter revenues for KAC, our retail financing unit, grew 14 percent
to $2.4 million, up from $2.1 million a year ago. FAS-125, which we adopted in
1997, increased revenues by 2 percent this quarter.
During the period, we continued to improve capacity utilization at our
various plants. Steady progress on this front has been most encouraging.
However, with the threat posed by Asian imports, the Company is actively
exploring ways to address capacity issues even more aggressively.
Karen L. Hendricks
Chairman, Chief Executive Officer and President
<PAGE> 3
Music Products Division
Grand pianos, vertical pianos, computerized auto-player piano systems and
digital pianos.
Company owned retail outlets in Atlanta, Georgia; Cincinnati, Ohio; Indianapolis
and Fort Wayne, Indiana; Lexington and Louisville, Kentucky.
Independent keyboard dealers (400).
Retail Financing Division
Point-of-sale consumer financing for new and used pianos, and special promotion
programs.
Piano leasing programs.
Contract Electronics Division
Printed circuit board assemblies, design, engineering, testing,
electro-mechanical and mechanical assemblies, post-production repair and order
fulfillment.
Home Office
4680 Parkway Drive, Suite 200, Mason, OH 45040-5301, (513)754-4500 e-mail:
[email protected] web sites: www.baldwinpiano.com or www. pianovelle.com
Manufacturing Locations
Conway, Fayetteville and Trumann, Arkansas; Greenwood, Mississippi; Juarez,
Mexico
Registrar and Transfer Agent
The Provident Bank, One East Fourth Street,
Cincinnati, OH 45202
Baldwin Piano & Organ Company common stock is traded on The Nasdaq National
Market; Symbol: BPAO
<PAGE> 4
Consolidated Summary of Earnings (unaudited)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
(in thousands, except earnings per share) 1998 1997 1998 1997
- - ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Net sales $ 34,277 $ 33,915 $ 98,072 $ 103,629
Cost of goods sold 28,884 26,539 81,953 83,324
- - ---------------------------------------------------------------------------------------------------------------------------
Gross profit 5,393 7,376 16,119 20,305
Income on the sale of installment receivables 1,983 1,790 5,483 5,461
Interest income on installment receivables 388 300 1,196 854
Other operating income 223 386 966 1,807
Selling, general and administrative expenses (6,951) (7,556) (20,564) (21,453)
Interest expense (885) (592) (2,170) (2,248)
- - ---------------------------------------------------------------------------------------------------------------------------
Earnings before income taxes 151 1,704 1,030 4,726
Income taxes (58) (645) (396) (1,779)
- - ---------------------------------------------------------------------------------------------------------------------------
Net earnings $ 93 $ 1,059 $ 634 $ 2,947
Net earnings excluding one time events $ 93 $ 980 $ 634 $ 1,887
===========================================================================================================================
Basic earnings per share $ 0.03 $ 0.31 $ 0.18 $ 0.86
- - ---------------------------------------------------------------------------------------------------------------------------
Basic earnings per share excluding one time events $ 0.03 $ 0.28 $ 0.18 $ 0.55
Diluted earnings per share $ 0.03 $ 0.30 $ 0.18 $ 0.85
- - ---------------------------------------------------------------------------------------------------------------------------
Basic number of shares outstanding (000) 3,453 3,442 3,450 3,432
- - ---------------------------------------------------------------------------------------------------------------------------
Diluted number of shares outstanding (000) 3,465 3,489 3,502 3,479
- - ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 5
Consolidated Summary Balance Sheets (unaudited)
<TABLE>
<CAPTION>
September 30,
-------------
(in thousands) 1998 1997
- - --------------------------------------------------------------------------------------------------------
<S> <C> <C>
Assets
Receivables, net $ 24,649 $ 23,756
Inventories 51,925 39,158
Other current assets 7,381 8,482
- - --------------------------------------------------------------------------------------------------------
Total current assets 83,955 71,396
Installment receivables, less current portion 13,329 13,381
Property, plant and equipment, net 24,754 15,650
Other assets 14,235 11,789
- - --------------------------------------------------------------------------------------------------------
Total assets $136,273 $112,216
========================================================================================================
Liabilities and Shareholders' Equity
Current portion of long-term debt $ 1,000 $ 27,808
Other current liabilities 18,948 15,359
- - --------------------------------------------------------------------------------------------------------
Total current liabilities 19,948 43,167
Long-term debt, less current portion 49,199 2,675
Other liabilities 6,275 7,069
Shareholders' equity 60,851 59,305
- - --------------------------------------------------------------------------------------------------------
Total liabilities and shareholders' equity $136,273 $112,216
- - --------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM CONSOLIDATED
BALANCE SHEET STATEMENT OF EARNINGS AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> SEP-30-1998
<CASH> 380
<SECURITIES> 0
<RECEIVABLES> 25,705
<ALLOWANCES> 1,056
<INVENTORY> 51,925
<CURRENT-ASSETS> 83,955
<PP&E> 43,242
<DEPRECIATION> 18,488
<TOTAL-ASSETS> 136,273
<CURRENT-LIABILITIES> 19,948
<BONDS> 49,199
0
0
<COMMON> 42
<OTHER-SE> 60,809
<TOTAL-LIABILITY-AND-EQUITY> 136,273
<SALES> 98,072
<TOTAL-REVENUES> 105,717
<CGS> 81,953
<TOTAL-COSTS> 81,953
<OTHER-EXPENSES> 19,563
<LOSS-PROVISION> 1,001
<INTEREST-EXPENSE> 2,170
<INCOME-PRETAX> 1,030
<INCOME-TAX> 396
<INCOME-CONTINUING> 634
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 634
<EPS-PRIMARY> .18
<EPS-DILUTED> .18
</TABLE>
<PAGE> 1
Exhibit 99.1
FOR IMMEDIATE RELEASE
Contacts: Perry Schwartz - CFO Ken DiPaola or Joel Pomerantz
Baldwin Piano The Dilenschneider Group, Inc.
(513) 576 - 4518 (212) 922 -0900
BALDWIN PIANO WILL RE-LOCATE WITHIN CINCINNATI AREA
LOVELAND, OHIO, August 14, 1998 -- The Baldwin Piano & Organ Company
(NASDAQ: BPAO) today announced it has signed a lease with Cincinnati's Duke
Realty Investments, Inc. (NYSE:DRE) to re-locate Baldwin's headquarters from
Loveland to near-by Deerfield Township, Ohio. The move is scheduled for November
of this year.
Commenting on the re-location, Baldwin Chairman and CEO Karen Hendricks
said: "We have secured separate sites in the Governors Pointe Office Park
complex for our corporate staff, our R & D people, and our wholly-owned retail
operation. The three sites are close enough so that all Baldwin employees can
easily attend joint staff meetings and work together.
"The move to Deerfield Township will also enable the company to reduce
its overall square footage requirements by some 30 percent through more
efficient utilization of space."
Baldwin Piano & Organ Company has marketed keyboard musical instruments
for 136 years and has been providing consumer financing for the keyboard
industry for nearly a century. Baldwin, maker of America's best selling pianos,
also manufactures electronic and electro-mechanical components for Original
Equipment Manufacturers.
# # # #
<PAGE> 1
Exhibit 99.2
CONTACT: Frank Seta, Vice President
Baldwin Piano & Organ Company
(513) 576-4500
BALDWIN PIANO'S CONCERTMASTER PLAYER PIANO SYSTEM
WINS TOP AWARD FOR TECHNOLOGICAL INNOVATION,
EXCELLENCE AT CEDIA'S EXPO '98
CUSTOM ELECTRONIC DESIGN AND INSTALLATION TRADE GROUP CITES
COMPUTERIZED PLAYER PIANO'S BEAUTY, FLEXIBILITY, VERSATILITY
NEW ORLEANS, September 17 -- The Baldwin Piano & Organ Company's
ConcertMaster(R), an innovative computerized version of the historic player
piano, earned top honors for technological excellence at the Custom Electronic
Design and Installation Association's (CEDIA) EXPO '98, held here earlier this
week.
Baldwin's newest ConcertMaster system, introduced at EXPO '98, took
first place honors in CEDIA's "Electronic Lifestyles" product category,
competing against a large field of other technologically innovative consumer
electronics products. Concert- Master, which has become an increasingly popular
option on Baldwin's high-end grand pianos, combines a powerful computer-driven
home entertainment system with the visual appeal and traditional craftsmanship
of the grand piano.
CEDIA cited ConcertMaster for its appearance, flexibility,
functionality, and ease of use. The product was specifically designed by Baldwin
to appeal to the large segment of the population that does not play the piano,
but still wants to own the stately instrument for its prestige value and as an
elegant addition to home decor.
CEDIA, founded in 1989, is a leading international association of home
electronics designers and installers with over 1300 member companies promoting
Electronic LifestylesJ. Member companies specialize in designing electronic
systems -- typically, media rooms, multi-room entertainment systems, home
automation, communications systems, and integrated whole-house subsystems for
lighting and
-more-
<PAGE> 2
-2-
security. The winner of CEDIA's prestigious "Best Product Technology Award" was
named following a thorough review of all new home electronics products by a
panel of CEDIA judges.
Commenting on the award, Frank Seta, Baldwin vice president who oversaw
development of the ConcertMaster, said: "We are most grateful to CEDIA for
recognizing the superior technological achievement this product represents. The
ConcertMaster's unmatched versatility and multi-media capabilities are, we
believe, without equal in any competing system. It is compatible with in-home
entertainment systems and, most importantly, very simple to use."
In addition to a stationary controller fitted under the keyboard, the
new, award-winning 900 MHz version of the ConcertMaster features a hand-held
wireless RF remote control that allows operation of the system from any room in
a house. An easy-to-read LCD display guides the user through ConcertMaster's
many musical and operational options.
ConcertMaster's range of playback sources is more versatile than any
other product of its kind. It can accept musical selections on a 3.5-inch floppy
disk, compact disc (CD), and an internal hard drive library which comes
pre-loaded with 20 hours of music selections. Using an Internet connection and
web browser, users can even download additional selections from the world wide
web.
Owners can create up to 99 custom library categories to store
additional music. With up to 99 songs in each category, nearly 10,000 selections
can be played on the ConcertMaster without having to insert a disc or CD. Users
can also mine an extensive CD library featuring famous keyboard artists both
past and present. The ConcertMaster system also enables owners to watch video of
a performance on a TV monitor while the piano plays "live" in their living
rooms. In playback, ConcertMaster's sophisticated computerized solenoid system
translates the MIDI information into an accurate musical reproduction with all
the presence and subtlety of the original performance.
-more-
<PAGE> 3
-3-
For the pianist, ConcertMaster's Quick RecordJ and Multi-Track
recording features capture every nuance of the performance for playback. One can
even print out the music score of the recording.
The Baldwin Piano & Organ Company has marketed piano products for over
136 years and has been providing consumer financing for the keyboard industry
for nearly a century. Maker of America's best-selling pianos under the Baldwin,
Chickering, and Wurlitzer brand names, the company also manufactures electronic
and electro-mechanical components for original equipment manufacturers. Revenues
in 1997 exceeded $143 million.
# # #
EDITOR'S NOTE: Photo available. Please call Mark Hunter of Baldwin Piano at
(513) 576-4500
<PAGE> 1
Exhibit 99.3
CONTACT: Stephen Brock, Executive V.P.
Baldwin Piano & Organ Company
(513) 576-4500
BALDWIN PIANO INTRODUCES NEW DURABLE,
SUPER HIGH-GLOSS POLYESTER FINISHES
COMPANY EXPECTS POLYESTER TO DRIVE MAJOR INCREASE IN GRAND PIANO SALES
LOVELAND, Ohio, September 21, 1998 -- The Baldwin Piano & Organ Company
(NASDAQ: BPAO) announced today it has begun dealer shipments of a new line of
grand pianos featuring super high-gloss polyester finishes, replacing
traditional lacquer finishes on the company's top-of-the-line pianos. Baldwin is
the only American piano manufacturer now offering these extremely durable
polyester finishes.
The introduction of these mirror-like finishes should Adramatically
expand the company's share of the growing grand piano market," according to the
latest issue of "Music Trades," the authoritative music industry trade monthly.
The publication notes that polyester-finished units, all formerly made by
non-U.S. companies, accounted for 85 percent of the grand pianos sold in this
country last year.
Stephen Brock, Baldwin executive vice president and general manager,
commented: "This is truly a formidable manufacturing achievement for Baldwin,
representing the culmination of years of planning and a multi-million-dollar
capital investment. In terms of quality and appearance these new pianos are the
equal of any piano manufactured anywhere in the world.
"The new polyester-finish will vastly improve the 'eye appeal' of our
pianos on the showroom floor," he added, "and by year's end we expect demand to
drive production to levels that are nearly double that of 1997."
Baldwin's premier product, the top-of-the-line "Artist Grand," will be
the first unit marketed with the new mirror-like polyester finishes. Produced at
a dedicated
-more-
<PAGE> 2
-2-
facility in Conway, Arkansas, Baldwin's newest generation of "Artist Grands"
will be available, initially, in ebony and, later, in a clear finish that allows
the natural beauty of the wood grain to shine through. The new finishes are also
extremely hard, durable, resistant to chemicals, scratches, or abrasions and
easily repaired if damaged.
Mr. Brock also noted that Baldwin's Chickering line of mid-priced grand
pianos and several vertical models will eventually be available with the new
eye-catching finishes.
"Polyester finishes," he said,"are one of Baldwin's most
eagerly-awaited product innovations. Buyers of grand pianos now demand this kind
of visually-dazzling finish, and its superior strength and durability will also
add substantial economic value to the Baldwin product line."
The technically superior finish, which was developed by Baldwin over a
period of many months, required a new management and technical team, along with
the latest state-of-the-art polyester finishing equipment acquired from around
the world. Baldwin also recruited finishing experts from all over the U.S. to
lead a training program designed to help its craftspeople acquire the special
skills needed to apply the new polyester finishes.
The Baldwin Piano & Organ Company has marketed piano products for over
136 years and has been providing consumer financing for the keyboard industry
for nearly a century. Maker of America's best-selling pianos under the Baldwin,
Chickering, and Wurlitzer brand names, the company also manufactures electronic
and electro-mechanical components for original equipment manufacturers. Revenues
in 1997 exceeded $143 million.
# # #
"Safe Harbor" statement under the Private Securities Litigation Reform Act of
1995: This release contains forward looking statements that are subject to risks
and uncertainties, including, but not limited to, the impact of competitive
products and pricing, product demand and market acceptance, reliance on key
strategic alliances, fluctuations in operating results and other risks detailed
from time to time in the company's filings with the Securities and Exchange
Commission.
<PAGE> 1
Exhibit 99.4
[Baldwin Piano & Organ Company Letterhead]
CONTACTS: Perry Schwartz - CFO Ken DiPaola or Joel Pomerantz
Baldwin Piano The Dilenschneider Group, Inc.
(513) 576-4518 (212) 922-0900
BALDWIN PIANO REPORTS THIRD QUARTER RESULTS
SALES UP 8%, EXCLUDING LAST YEAR'S NON-RECURRING ITEM;
MARKET SHARE MAINTENANCE STRATEGY APPEARS ON TARGET
LOVELAND, OH, October 22, 1998 -- Baldwin Piano & Organ Company
(NASDAQ:BPAO) today announced results for the third quarter and nine months
ended September 30, 1998.
Third-quarter net sales rose 8 percent to $34.3 million, up from $31.6
million last year before the impact of a $2.3 million non-recurring item.
Including last year's non-recurring item, related to the phase-out of the
company's dealer consignment sales program, third-quarter 1997 net sales were
$33.9 million.
Net earnings for the third quarter were $93,000, or 3 cents per diluted
share, compared with $1.1 million, or 30 cents per diluted share, a year
earlier. Last year's third- quarter earnings included non-recurring income of
$79,000, or 2 cents per diluted share.
For the first nine months of 1998, Baldwin reported net income of
$634,000, or 18 cents per diluted share, on sales of $98.1 million. A year ago,
the company earned $2.9 million, or 85 cents per diluted share, on sales of
$103.6 million. Results for the first nine months of 1997 include non-recurring
income of $1.1 million, or 30 cents per diluted share. Excluding last year's $15
million of non-recurring sales, sales for the nine-month period rose 11 percent.
Commenting on the results, Karen L. Hendricks, president, chairman and
chief executive officer of Baldwin said, "As previously disclosed, the financial
crisis in Asia has prompted our competitors to step up imports of low-end pianos
in a very major way. This has put significant downward pressure on retail prices
and profitability in the high-volume vertical piano segment of our business.
(more)
<PAGE> 2
-2-
"In the face of this competitive threat, we adopted a strategy designed
to preserve the market share and showroom visibility that is essential to
Baldwin's long-term success. That strategy appears to be working so far. While
low-priced competing pianos have pared margins considerably, unit volume in
vertical pianos is up sharply from second- quarter levels. We suspect burgeoning
inventories of Asian pianos will continue to exert pressure on margins and sales
in the fourth quarter.
"Sales of Baldwin's high-end grand pianos, the largest share of our
revenues, remained strong, a tribute to the great success of our Concert Master
electronic player system, which has been very well received by our high-end
customers.
"Late in the third quarter, we began dealer shipments of a new line of
grand pianos featuring super high-gloss polyester finishes, an alternative to
the traditional lacquer finish. Early indications are that demand for this new
finish is strong, and we see an excellent opportunity here to dramatically
expand Baldwin's share of the high margin grand piano market.
"Baldwin's third-quarter contract electronics sales grew 10 percent to
$10 million, up from $9 million a year ago. New contracts represented 85 percent
of this growth. However, contract electronic's rapid growth also triggered
supply constraints and additional costs required to fulfill existing customer
demand on a timely basis. Beyond 1998, new growth will be more strictly managed
with a focus on profitability and our ability to meet existing customer
commitments. By successfully targeting specific market niches that are less
closely tied to changing economic conditions, this business should continue to
grow at a healthy pace.
"Third-quarter revenues for KAC, Baldwin's retail financing unit, grew
14 percent to $2.4 million, up from $2.1 million a year ago. FAS-125, which we
adopted in 1997, increased revenues by 2 percent this quarter."
Ms. Hendricks added, "During the period, Baldwin continued to improve
capacity utilization at its various plants. Steady progress on this front has
been most encouraging. However, with the threat posed by Asian imports, Baldwin
is actively exploring ways to address capacity issues even more aggressively."
(more)
<PAGE> 3
-3-
Baldwin Piano & Organ Company has marketed keyboard musical products
for over 136 years and has been providing consumer financing for the keyboard
industry for nearly a century. Baldwin, maker of America's best selling pianos,
also manufactures electronic and electro-mechanical components for Original
Equipment Manufacturers.
# # #
"Safe Harbor" statement under the Private Securities Litigation Reform Act of
1995: This release contains forward looking statements that are subject to
risks and uncertainties, including, but not limited to, the impact of
competitive products and pricing, product demand and market acceptance,
reliance on key strategic alliances, fluctuations in operating results and
other risks detailed from time to time in the company's filings with the
Securities and Exchange Commission.
(Condensed Earnings Statement and Balance Sheet Attached)
<PAGE> 4
BALDWIN PIANO & ORGAN COMPANY AND SUBSIDIARIES
CONSOLIDATED SUMMARY OF EARNINGS
(In Thousands, except net earnings per share)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
------------------------ ------------------------
1998 1997 1998 1997
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Net sales(1) $ 34,277 $ 33,915 $ 98,072 $ 103,629
Cost of goods sold(1) 28,884 26,539 81,953 83,324
--------- --------- --------- ---------
Gross profit 5,393 7,376 16,119 20,305
Interest income on installment receivables 2,371 2,090 6,679 6,315
Other operating income, net 223 386 966 1,807
Selling, general and administrative(2,3) (6,951) (7,556) (20,564) (21,453)
Interest expense (885) (592) (2,170) (2,248)
--------- --------- --------- ---------
Earnings before income taxes 151 1,704 1,030 4,726
Income taxes(1,2,3) 58 645 396 1,779
========= ========= ========= =========
Net earnings $ 93 $ 1,059 $ 634 $ 2,947
========= ========= ========= =========
Net earnings excluding one time events $ 93 $ 980 $ 634 $ 1,887
========= ========= ========= =========
Basic earnings per share $ 0.03 $ 0.31 $ 0.18 $ 0.86
========= ========= ========= =========
Basic earnings per share excluding one time events $ 0.03 $ 0.28 $ 0.18 $ 0.55
========= ========= ========= =========
Diluted earnings per share $ 0.03 $ 0.30 $ 0.18 $ 0.85
========= ========= ========= =========
Average number of shares outstanding 3,453 3,442 3,450 3,432
========= ========= ========= =========
Diluted number of shares outstanding 3,465 3,489 3,502 3,479
========= ========= ========= =========
</TABLE>
CONSOLIDATED SUMMARY BALANCE SHEETS
(In Thousands)
<TABLE>
<CAPTION>
September 30,
-----------------------
1998 1997
-------- --------
<S> <C> <C>
Assets
Receivables, net $ 24,649 $ 23,756
Inventories 51,925 39,158
Other current assets 7,381 8,482
-------- --------
Total current assets 83,955 71,396
Installment receivables, less current portion 13,329 13,381
Property, plant and equipment, net 24,754 15,650
Other assets 14,235 11,789
======== ========
Total assets $136,273 $112,216
======== ========
Liabilities and Shareholders' Equity
Current portion of long-term debt $ 1,000 $ 27,808
Other liabilities 18,948 15,359
-------- --------
Total current liabilities 19,948 43,167
Long-term debt, less current portion 49,199 2,675
Other liabilities 6,275 7,069
Shareholders' equity 60,851 59,305
======== ========
Total liabilities and shareholders' equity $136,273 $112,216
======== ========
</TABLE>
1) 1997 year-to-date Sales and Cost of Sales included one time sales of $15.0
million and associated cost of sales related to the Company's decision to phase
out of its Consignment inventory program. The sales (and associated LIFO impact)
increased reported net income by 4 cents per share in the third quarter of 1997
and by 71 cents per share for the first nine months of 1997. This increase was
offset by one-time expenses detailed in footnotes #2 and #3 to account for a
one-time gain of 31 cents per share for the first nine months of 1997.
(2) Prior year Cost of Sales and S,G&A included one time expenses associated
with the Company's decision to phase out its Church Organ business. The expense
reduced reported net income by 30 cents per share for the first nine months
1997.
(3) Prior year S,G&A expense included one time expenses for a proxy defense. The
expense reduced reported net income by 1 cent per share for the third quarter of
1997 and 10 cents per share for the first six months of 1997.
