<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-Q
(Mark One)
[ x ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended January 31, 2000
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ______ to ______
Commission file Number: 33-93302
AM General Corporation
(Exact name of registrant as specified in its charter)
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<TABLE>
<S> <C>
Delaware 35-1852615
(State or other jurisdiction of incorporation (IRS Employer Identification No.)
or organization )
105 North Niles Avenue
South Bend, Indiana 46617
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (219) 284-2907
</TABLE>
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
Nine hundred shares of the registrant's common stock, par value $.01 per share,
is outstanding as of March 16, 2000.
<PAGE>
AM General Corporation
Form 10-Q
Quarter Ended January 31, 2000
<TABLE>
<S> <C>
PART I - FINANCIAL INFORMATION 3
ITEM 1. FINANCIAL STATEMENTS 3
Consolidated Balance Sheets 3
Consolidated Statements of Operations 4
Consolidated Statements of Cash Flows 5
Notes to Consolidated Financial Statements 6
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS. 7
GENERAL 7
HUMVEE/HUMMER Segment 7
Medium Truck Segment 8
SPLO Segment 8
STS/Other Segment 8
Engine Segment 8
Results of Operations 9
Liquidity and Capital Resources 12
Year 2000 Business Matters 12
Forward-Looking Statements 13
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK 13
PART II - OTHER INFORMATION 14
ITEM 1. LEGAL PROCEEDINGS 14
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K 15
SIGNATURES 16
</TABLE>
2
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PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
AM GENERAL CORPORATION AND SUBSIDIARIES
Consolidated Balance Sheets
(Dollar amounts in thousands, except share information)
<TABLE>
<CAPTION>
January 31, October 31,
Assets 2000 1999
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(unaudited)
<S> <C> <C>
Current assets:
Cash $ 718 1,081
Accounts receivable, net 71,525 77,081
Inventories 87,842 84,589
Prepaid expenses 1,605 984
Deferred income taxes 6,210 6,210
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Total current assets 167,900 169,945
Income taxes receivable 4,752 4,752
Property, plant, and equipment, net 43,928 43,858
Deferred income taxes 26,388 26,388
Goodwill, net 73,940 75,012
Other assets 4,322 5,838
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$ 321,230 325,793
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Liabilities and Stockholder's Deficit
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Current liabilities:
Accounts payable $ 41,582 37,425
Accrued expenses 70,379 71,163
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Total current liabilities 111,961 108,588
Long-term debt 89,363 92,805
Postretirement benefits other than pensions, noncurrent portion 161,583 160,403
Other long-term liabilities 7,105 8,064
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Total liabilities $ 370,012 369,860
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Stockholder's deficit:
8% cumulative preferred stock, $1,000 par value. Authorized 10,000
shares; issued and outstanding 5,000 shares. $ 5,000 5,000
Common stock, $.01 par value. Authorized, issued and
outstanding 900 shares. 0 0
Paid-in capital 1,000 1,000
Accumulated deficit (54,782) (50,067)
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Total stockholder's deficit (48,782) (44,067)
Commitments and contingencies
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$ 321,230 325,793
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</TABLE>
See accompanying notes to consolidated financial statements
3
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AM GENERAL CORPORATION AND SUBSIDIARIES
Consolidated Statements of Operations
(Dollar amounts in thousands)
(unaudited)
<TABLE>
<CAPTION>
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Three Months Ended
January 31,
-----------------------------------------------
2000 1999
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<S> <C> <C>
Net sales $ 91,391 87,637
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Cost and expenses:
Cost of sales 79,837 76,699
Depreciation and amortization 3,223 2,741
Selling, general, and administrative expenses 7,933 7,868
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Earnings before interest and income taxes 398 329
Interest income 85 74
Interest expense (4,128) (3,017)
- ------------------------------------------------------------------------------------------------------------------
Loss before income taxes and cumulative effect of accounting (3,645) (2,614)
change
Income tax benefit - (459)
- ------------------------------------------------------------------------------------------------------------------
Loss before cumulative effect of accounting change (3,645) (2,155)
Cumulative effect of accounting change (1,070) -
- ------------------------------------------------------------------------------------------------------------------
Net loss $ (4,715) (2,155)
- ------------------------------------------------------------------------------------------------------------------
</TABLE>
See accompanying notes to consolidated financial statements
4
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AM GENERAL CORPORATION AND SUBSIDIARIES
Consolidated Statements of Cash Flows
(Dollar amounts in thousands)
(unaudited)
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------
Three Months
Ended
January 31,
---------------------------------------
2000 1999
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Cash flows from operating activities:
Net loss $ (4,715) (2,155)
Adjustments to reconcile net loss to
net cash provided by operating activities:
Restructuring payments - (91)
Depreciation and amortization of plant and equipment 1,890 1,408
Other amortization 1,528 1,618
Increase (decrease) in inventory reserve 115 (297)
Deferred income taxes - (210)
Noncash other postretirement cost 1,180 1,678
Cumulative effect of change in accounting principle 1,071 -
Gain on sale of equipment (6) -
Change in assets and liabilities:
Accounts receivable 5,556 12,680
Inventories (3,368) (2,504)
Prepaid expenses (620) (151)
Other assets - (91)
Accounts payable 4,157 (1,314)
Accrued expenses (785) (2,965)
Income taxes - (305)
Other liabilities (957) (172)
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Net cash provided by operating activities 5,046 7,129
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Cash flows from investing activities:
Proceeds from sale of equipment 6 -
Capital expenditures (1,960) (1,149)
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Net cash used in investing activities (1,954) (1,149)
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Cash flows from financing activities:
Net repayments under line-of-credit agreement (3,455) (7,854)
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Net cash used in financing activities (3,455) (7,854)
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Net change in cash (363) (1,874)
Cash and cash equivalents at beginning of period 1,081 2,687
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Cash and cash equivalents at end of period $ 718 813
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Supplemental disclosure of cash items
Interest paid $ 6,127 5,129
Taxes paid - 56
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</TABLE>
See accompanying notes to consolidated financial statements
5
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AM General Corporation and Subsidiaries
Notes to Consolidated Financial Statements
(Dollar amounts in thousands)
Note 1. Basis of Presentation
The accompanying unaudited consolidated financial statements have been prepared
in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Article 10 of
Regulation S-X. Accordingly, they do not include all of the information and
notes to consolidated financial statements required by generally accepted
accounting principles for complete financial statement presentation.
In the opinion of management, all adjustments (consisting of normal recurring
accruals) considered necessary for a fair presentation have been included.
Operating results for the three-month period ended January 31, 2000 are not
necessarily indicative of the results that may be expected for the year ending
October 31, 2000.
For further information, refer to the consolidated financial statements and
footnotes thereto included in the Registrant's Form 10-K.
Note 2. Inventories
Inventories consisted of the following:
<TABLE>
<CAPTION>
January 31,
2000 October 31,
(Unaudited) 1999
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<S> <C> <C>
Finished Goods $ 23,297 30,010
Service Parts 21,931 20,850
Raw Materials, supplies and work in progress 49,181 40,181
------------------ -----------------
94,409 91,041
Less allowance for inventory obsolescence (6,567) (6,452)
------------------ -----------------
Total $ 87,842 84,589
================== =================
</TABLE>
Note 3. Change in Accounting Principle
In April 1998, the AICPA Accounting Standards Executive Committee issued
Statement of Position 98-5, Reporting on the Costs of Start-up Activities (SOP
98-5). SOP 98-5 is applicable to all non-governmental entities and requires
that costs of start-up activities, including organization costs, be expensed as
incurred. All start-up costs previously capitalized are required to be fully
amortized effective with adoption of SOP 98-5. Except for certain investment
companies, SOP 98-5 is effective for financial statements for fiscal years
beginning after December 15, 1998. Restatement of previously issued financial
statements is not permitted. Except for certain specified investment companies,
initial application of the SOP should be as of the beginning of the fiscal year
in which the SOP is first adopted and should be reported as the cumulative
effect of a change in accounting principle as described in APB Opinion No. 20,
Accounting Changes. The Company adopted SOP 98-5 in the first quarter of fiscal
2000 and incurred a cumulative effect expense of $1.1 million.
6
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
GENERAL
AM General Corporation ("AM General" or the "Company") is the largest supplier
of light tactical wheeled vehicles for the Department of Defense ("DoD"). The
Company is the original designer and sole manufacturer of the High Mobility
Multipurpose Wheeled Vehicle ("HMMWV" or "HUMVEE"(R). The Company also sells
HUMVEEs to foreign military services through the DoD's Foreign Military Sales
("FMS") program and on a direct sale basis. In 1993, the Company began selling a
commercial version of the HUMVEE under the registered trademark HUMMER(R) to
industrial and retail users through its commercial dealer network. In December
1999, the Company entered into a series of agreements discussed below, with
General Motors Corporation ("GM") pursuant to which, among other things, it
transferred the HUMMER trademark to GM.
The Company classifies its operations into five business segments: (i)
HUMMER/HUMVEEs, (ii) Medium Trucks, (iii) Spare Parts Logistics Operations
("SPLO"), (iv) Systems Technical Support ("STS")/Other, and (v) Engines. In
accordance with Statement of Financial Accounting Standards ("SFAS") No. 131,
"Disclosures about Segments of an Enterprise and Related Information," the
Company is providing management discussion on net sales, unit sales and gross
margin for these business segments. Prior year financial information has been
restated to provide discussion on comparative data. Management discussion
relevant to other financial data will be presented on a consolidated basis only.
HUMVEE/HUMMER Segment
HUMVEE
The Company began producing the latest generation of military HUMVEEs, the A2
Series, in August 1995. On December 23, 1995, the Company entered into a multi-
year annual requirements contract for A2 Series HUMVEEs known as the X001
Contract which provided a mechanism for the US Army to procure at least 2,350
HUMVEEs annually through fiscal year 2000. The contract, however, does not
require the Army to purchase the vehicles as funding for each of the respective
years must be appropriated pursuant to the annual Defense Budget. Through
January 31, 2000, a total of 14,396 vehicles have been ordered on the X001
Contract. The FY00 Defense Bill contains the necessary funding for the expected
fiscal year 2000 production.
The X001 contract expires at the end of the current fiscal year. The US Army's
long-term acquisition plan for its Light Tactical Vehicle fleet includes
developing an upgraded version of the HUMVEE which will be known as the A4
Series HUMVEEs. The plan further calls for the continuation of the current
production contract to allow sufficient time to develop the A4 Series and award
a production contract. The Company anticipates that negotiations on the follow-
on contract will conclude by September 2000.
In the second quarter of fiscal year 2000, the Company expects to finalize
negotiations with an international customer who is seeking to acquire 896
vehicles to be produced and delivered in fiscal 2000. In anticipation of this
order, along with heightened demand for HUMMERs, the Company is increasing the
production rate of HUMMER/HUMVEEs from the current rate of 18 units per day to
24 in mid-March, 2000.
In fiscal 1997, the Company manufactured 231 HUMVEEs for a foreign customer
seeking to acquire HUMVEEs under the FMS program ("the FMS Customer"). Due to
negotiation related difficulties in obtaining the order, these units remained in
finished goods inventory at January 31, 2000. As a result, the Company's
finished goods inventory was increased beyond normal operating levels.
Moreover, such delay resulted in a higher than expected level of borrowing by
the Company under its revolving credit facility. Twenty-four (24) of these
units were sold to another foreign customer in February 2000. The FMS Customer
has indicated its intention to purchase the remaining units by formally
requesting from the US Government an offer to begin negotiations. The order
received US Congressional approval and the contract has been forwarded to the
FMS Customer for execution. All signatures required by the customer's
procurement office have been obtained and the order has been sent to the Defense
Security Assistance Agency for further processing. It is anticipated that a
contract for the order will be signed and the units delivered by the end of the
current fiscal year.
HUMMER
On December 21, 1999, the Company concluded a series of agreements with GM ("the
GM Transaction") through which the Company intends to more fully utilize the
widespread recognition of the HUMMER name to generate incremental cash flow.
Pursuant to the terms of the GM Transaction, GM will design, engineer, certify
and release a new generation vehicle (the "New Vehicle") bearing the HUMMER
trademark (the "Trademark") and retain the Company to assemble New Vehicles
7
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over a seven and one half year period. As part of the GM Transaction, the
Company assigned the Trademark to GM. Reference is hereby made to the GM
Agreements filed as exhibits to the Company's Form 10-K filed with the
Securities and Exchange Commission on January 31, 2000. The Company expects to
begin assembling the New Vehicle for GM in approximately April 2002.
In response to higher demand for new model year HUMMERs from its dealer network,
and to the international customer order referred to above, the Company is
increasing the production of HUMMERs in March 2000 from 5.5 to 6 vehicles per
day resulting in a new production rate of 24 HUMMER/HUMVEE vehicles per day.
Medium Truck Segment
On April 19, 1999, the Company completed production of 2-1/2 ton trucks under
the Extended Service Program ("ESP") contract. The results of operations for
the first quarter of 1999 include unit sales of 354 vehicles under this
contract.
The Army/DoD is developing, at Congressional direction, an acquisition
strategy/program to facilitate full and open competition for a new Family of
Medium Tactical Trucks ("FMTV") multi-year production contract that will be
awarded to a single contractor. Phase I (Prototype and test) contract award
(for up to three contractors) is projected for November 2000 with a subsequent
Phase II (Production) award to a single contractor in 2002. The Company has and
will continue to actively and aggressively participate in all phases of the FMTV
program.
SPLO Segment
The Company's SPLO operation sells after-market parts and support-services for
vehicles manufactured by the Company and for non-AM General manufactured
vehicles, including HUMMER/HUMVEEs, 2-1/2 and 5-ton trucks and others.
STS/Other Segment
The Company's STS operation provides technical support and engineers to the
Army's Tank, Automotive and Armaments Command ("TACOM"). Services include
engineering, design and drafting, configuration and data management,
translation, and integrated logistics support. During the first three months of
fiscal 2000, the Company's STS engineering group completed work on the Army's
Second Source FMTV Phase I contract. This contract has since been replaced by a
new acquisition strategy. See "Medium Truck Segment".
Engine Segment
The Company acquired its 6.5 liter diesel engine business from GM Powertrain, a
division of GM on June 11, 1999. Under terms of the agreement, the Company has
a license to produce and sell the 6.5 liter engine for a period of ten (10)
years. The agreement further provides that GM's internal parts distributor,
Service Parts Operation, will purchase all service requirements for this engine
from AM General for the term of the agreement. The Company anticipates
beginning low-rate production in July 2000 and full production by the first
quarter of 2001 at a new, leased facility in Franklin, Ohio.
The results of operations for the first quarter of fiscal year 2000 include
start-up costs associated with launching the plant and validating the assembly
process.
8
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Results of Operations
Three Months Ended January 31, 2000 ("first quarter of 2000") compared to Three
Months Ended January 31, 1999 ("first quarter of 1999")
Analysis of Net Sales and Unit Sales Information
- ------------------------------------------------
(in millions, except unit information)
<TABLE>
<CAPTION>
Three months ended
January 31, %
--------------------
2000 1999 Change Change
------- ------- ------ ------
<S> <C> <C> <C> <C>
Net Sales
HUMMER/HUMVEEs $ 75.9 $ 49.4 $ 26.5 53.6%
Medium Trucks - 22.8 (22.8) (100.0)
SPLO 12.6 12.7 (0.1) (0.8)
STS/Other 2.9 2.7 .2 7.4
------- ------- ------ ------
$ 91.4 $ 87.6 $ 3.8 4.3%
------- ------- ------ ------
HUMVEE/HUMMER Unit Sales 1,226 846 380 44.9%
HUMVEE/HUMMER Average Unit Selling Prices $61,909 $58,392 $3,517 6.0%
</TABLE>
Consolidated net sales increased $3.8 million, or 4.3% to $91.4 million in the
first quarter of fiscal 2000 compared to fiscal 1999. The increase in net sales
was due primarily to higher HUMMER/HUMVEE sales partially offset by lower sales
in connection with the completion of the ESP contract in fiscal year 1999.
HUMMER/HUMVEE segment net sales increased $26.5 million, or 53.6% to $75.9
million in the first quarter of fiscal 2000 compared to fiscal 1999. The
increase in net sales is primarily due to higher US Armed Forces requirements
and increased demand for International HUMVEEs and Commercial HUMMERs. Higher
average unit selling prices also contributed to the increase in net sales.
HUMMER/HUMVEE average unit selling prices in the first quarter of fiscal 2000
increased 6.0% over fiscal 1999 levels. The increase is attributable to a
negotiated price escalation on US Military HUMVEEs, a general price increase on
model year 2000 HUMMERs, and a proportionate increase in sales of more expensive
HUMMER models.
There were no Medium Truck segment net sales in the first quarter of fiscal 2000
due to the completion of the ESP contract in fiscal 1999. Segment net sales for
the first quarter of fiscal 1999 included $22.8 million of ESP contract revenue.
SPLO segment net sales decreased $.1 million, or .8% to $12.6 million in the
first quarter of fiscal 2000 compared to fiscal 1999. The decrease in net sales
is primarily attributable to lower demand for HUMMER parts.
STS/Other segment net sales increased $.2 million, or 7.4% to $2.9 million in
the first quarter of fiscal 2000 compared to fiscal 1999. The increase in net
sales is primarily due to a final billing on the closing out of the FMTV Second
Source Phase I contract.
9
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Analysis of Consolidated Gross Profit
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(in millions, except unit information)
<TABLE>
<CAPTION>
Three months ended
January 31, %
----------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
2000% % 1999% % Change Change
----- - ----- - ------------ ----------
Gross Profit
HUMMER/HUMVEEs $ 9.3 12.3% $ 5.3 10.7% $ 4.0 75.5%
Medium Trucks - - 4.1 18.0 (4.1) (100.0)
SPLO 1.4 11.1 1.1 8.7 0.3 27.3
STS/Other 1.2 41.4 0.4 14.8 0.8 200.0
Engine (0.3) - - - (0.3) (100.0)
---------------------------------------------------- ------------ ----------
$11.6 12.7% $10.9 12.5% $ 0.7 6.4%
</TABLE>
Consolidated gross profit increased $0.7 million, or 6.4% to $11.6 million in
the first quarter of fiscal 2000 compared to fiscal 1999. The Company's
consolidated gross profit margin for the first quarter of fiscal 2000 was 12.7%
compared to 12.5% in fiscal 1999. The decrease is primarily attributable to
reduced gross margin in the Medium Truck segment due to the completion of the
ESP program partially offset by improved gross profit in the HUMMER/HUMVEE and
STS/Other segments.
HUMMER/HUMVEE segment gross profit increased $4.0 million, or 75.5% to $9.3
million in the first quarter of fiscal 2000 compared to fiscal 1999. The
segment gross profit margin was 12.3% in the first quarter of fiscal 2000
compared to 10.7% in fiscal 1999. The increase in gross profit is primarily
attributable to higher sales volumes in connection with increased military
requirements and stronger commercial market demands.
There was no Medium Truck segment gross profit in the first quarter of fiscal
2000 due to the completion of the ESP contract in fiscal 1999. The results of
operations for the first quarter of fiscal 1999 included $4.1 million of gross
profit from the ESP contract. The segment gross profit margin was 18.2% in the
first quarter of 1999.
SPLO segment gross profit increased $0.3 million, or 27.3% to $1.4 million in
the first quarter of fiscal 2000 compared to fiscal 1999. The segment gross
profit margin for the first quarter of 2000 was 11.1% compared to 8.7% in fiscal
1999. The increase in gross profit margin is directly related to selling a
higher concentration of more profitable HUMVEE spare parts, partially offset by
reduced sales and higher warehousing expense.
STS/Other segment gross profit increased $0.8 million, or 200.0% to $1.2 million
in the first quarter of fiscal 2000 compared to fiscal 1999. The segment gross
profit margin for the first quarter of 2000 was 41.4% compared to 14.1% in
fiscal 1999. The increase is primarily due to the Company's FMTV Phase I
contract.
Engine segment gross profit was ($0.3) million in the first quarter of fiscal
2000 primarily due to start-up costs in connection with the new Franklin, Ohio
manufacturing facility.
Analysis and Management Discussions on Non-Segment Information
- --------------------------------------------------------------
Depreciation and Amortization
Depreciation and amortization expense was $3.2 million for the first quarter of
2000, an increase of $.5 million or 18.5% from $2.7 million for the first
quarter of 1999. The increase is primarily attributable to higher tooling
amortization costs directly related to increased production volumes in fiscal
2000 and the amortization of costs incurred in fiscal 1999 in connection with
the implementation of a new Enterprise Resource Planning system ("ERP").
10
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Selling, General and Administrative
Selling, general and administrative ("SG&A") expenses remained unchanged at $7.9
million for the first quarters of fiscal 2000 and 1999. SG&A for the first
quarter of fiscal 2000 includes $0.3 million related to the start-up of the 6.5
liter engine plant.
Earnings before Interest and Income Taxes
The Company recorded earnings before interest and income taxes for the first
quarter of fiscal 2000 of $0.4 million, an increase of $0.1 million from income
before interest and income taxes of $.3 million in fiscal 1999. The increase in
earnings before interest and income taxes is primarily attributable to higher
gross margin partially offset by higher depreciation and amortization expense.
Interest Income and Expense
Interest expense for the first quarter of 2000 was $4.1 million, an increase of
$1.1 million or 36.7% from $3.0 million for the first quarter of 1999. Average
debt outstanding during the first quarter of 2000 was $97.1 million at a
weighted average interest rate of 11.8%. Average debt outstanding during the
first quarter of fiscal 1999 was $88.0 million at a weighted average interest
rate of 12.4%. The increase in average debt outstanding is primarily due to
higher borrowings under the Company's revolving credit facility primarily due to
the increase in raw material inventory levels, partially offset by the $6.4
million reduction in the Company's 12 7/8 Senior Notes in connection with the
excess cash flow buy-back in fiscal 1999. The increase in interest expense was
due primarily to a fee paid to the Holders of the 12 7/8% Senior Notes for their
consent to the GM Transaction and interest expense paid to TACOM in connection
with a contract modification. Interest income remained unchanged at $0.1
million.
Income Tax Benefit
As of October 31, 1999 the Company had utilized all of its available loss
carryback and therefore there was no income tax benefit recorded for the first
quarter of fiscal 2000. The income tax benefit was $0.5 million for the first
quarter of fiscal 1999 and was recorded at the statutory rate adjusted for
permanent differences primarily resulting from the amortization of goodwill.
Cumulative Effect of Accounting Change
The Company incurred a charge of $1.1 million for the cumulative effect of
adopting AICPA Statement of Position 98-5 related to start-up activities and
organization costs. See Note 3 to Consolidated Financial Statements for
additional information.
Net Loss
The net loss for the first quarter of fiscal 2000 was $4.7 million, an increase
of $2.5 million from a net loss of $2.2 million in the first quarter of fiscal
1999. As discussed above, the increase in net loss was primarily due to the
one-time charge in connection with a change in accounting principle, higher
interest expense in the first quarter of fiscal 2000 and the unavailability of a
loss carryback in fiscal 2000.
11
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Liquidity and Capital Resources
The Company's liquidity requirements result from capital investments, working
capital requirements, debt service obligations, postretirement health care and
pension funding, interest expense, and, to a lesser extent, principal payments
on its indebtedness. The Company has met these requirements in each fiscal year
since 1992 from cash provided by operating activities and borrowings under its
revolving credit facility.
Cash provided by operating activities was $5.0 million for the three months
ended January 31, 2000 compared to $7.1 million for the three months ended
January 31, 1999. The key factors affecting cash flow from operating activities
during the first three months of 2000 were reductions in accounts receivable and
other assets and an increase in accounts payable partially offset by the net
loss, an increase in inventory, and reductions in accrued expenses. Other
factors include non-cash charges to operating income including depreciation,
amortization and non-cash postretirement expenses.
Accounts receivable levels at January 31, 2000 were $6.3 million lower than
levels at the end of the prior fiscal year primarily due to higher than normal
receivables at the end of fiscal 1999 in connection with military vehicles sold
at the end of the year.
Net inventory levels at January 31, 2000 were $3.3 million higher than levels at
the end of the prior fiscal year due to higher raw material and SPLO inventory
partially offset by lower finished goods inventory. Raw material inventory
levels were intentionally increased beyond normal operating levels during the
conversion to a new ERP system to assure uninterrupted production, and to a
lesser extent to mitigate the effects of any vendor related Year 2000 problems.
The parts will be consumed in the second quarter of fiscal 2000 and raw material
will return to normal levels.
During the first three months of fiscal 2000, the Company spent $1.9 million on
capital expenditures primarily on data equipment, leasehold improvements, vendor
tooling, and expenditures in connection with the 6.5 liter diesel engine
project, as compared to $1.1 million during the three months ended January 31,
1999. The Company anticipates additional capital expenditures in fiscal 2000 of
approximately $99.4 million of which $84.0 million is in connection with the
construction of the New Vehicle assembly facility and will be funded with the
proceeds of a GM loan. The Company anticipates it will incur additional capital
expenditures of approximately $10.3 million on vendor tooling, machinery and
equipment, vehicles and other capital requirements. These capital requirements
will be funded from operating cash flow and availability under the revolving
credit facility, and other permitted financing sources. The Company anticipates
it will spend approximately $5.1 million on the acquisition of the HUMMER/HUMVEE
manufacturing facility for which it has a financing commitment from a local
bank.
To repay the GM Loan, the Company will pay to GM a pre-agreed portion of the
assembly fee received for assembling each New Vehicle. If New Vehicles are
ordered and assemble at the forecasted rate, the GM Loan would be repaid within
seven and one half years after the release of the New Vehicle
The Company's revolving credit facility has a maximum borrowing limit of $60
million, is secured by a first lien on all of the Company's accounts receivable,
inventories and certain other assets, as defined therein, and expires on October
30, 2001. As of January 31, 2000, the Company had borrowings outstanding of
$21.5 million and approximately $6.2 million of availability under this
facility.
The Revolving Credit Agreement contains numerous covenants and prohibitions that
impose limitations on the liquidity of the Company, including requirements that
the Company satisfy certain financial ratios and limitations on the incurrence
of additional indebtedness. The indenture governing the outstanding 12-7/8%
Senior Notes also imposes limitations on the incurrence of additional
indebtedness. The Revolving Credit Agreement and Indenture were amended in
December to permit the GM Transaction. The ability of the Company to meet its
debt service requirements and to comply with such covenants will be dependent
upon future operating performance and financial results of the Company, which
will be subject to financial, economic, political, competitive and other factors
affecting the Company, many of which are beyond its control.
Year 2000 Business Matters
To date, the Company has not experienced any significant Year 2000 related
computer problems. The Company continues to monitor its computer applications
but does not anticipate any problems will arise relevant to the Year 2000 issue.
12
<PAGE>
Forward-Looking Statements
This report includes "forward-looking statements," within the meaning of the
Private Securities Litigation Reform Act of 1955, which involve known and
unknown risks, uncertainties and other important factors that could cause the
actual results, performance or achievements of the Company to differ materially
from any future results, performance or achievements expressed or implied by
such forward-looking statements. Such risks, uncertainties and other important
factors include, among others: general economic and business conditions; funding
for US Military HUMVEE orders; volume of US Government, international and
commercial orders for HUMMER/HUMVEEs and other products; volume of orders for
6.5 liter diesel engines; volume of orders for the New Vehicle in connection
with the GM Transaction; the ability to complete the New Facility within the
limits of the GM Loan; the outcome of the FMTV competition; the outcome of
pending litigation; the loss of any significant customers; the loss of any major
supplier; and the availability of qualified personnel. These forward-looking
statements speak only as of the date of this report. The Company expressly
disclaims any obligation or undertaking to disseminate any updates or revisions
to any forward-looking statement contained herein to reflect any change in the
Company's expectations with regard thereto or any change in events, conditions
or circumstance on which any forward-looking statement is based.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Market risk represents the risk of loss that may impact the financial position,
results of operations or cash flows of the Company due to adverse changes in
market prices and rates. The Company is exposed to market risk from interest
rate changes primarily due to its revolving credit facility used for maintaining
liquidity, funding capital expenditures and expanding operations. The Company's
revolving credit facility bears interest at prime plus a negotiated margin,
therefore any borrowings outstanding will approximate fair market value at all
times. The Company believes fluctuations in interest rates will not have a
material adverse impact on its results of operations over the next year.
13
<PAGE>
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
Nevada Product Liability Case
In February 2000, the Company settled the previously reported product liability
case, instituted in Clark County, Nevada in 1995, based on an accident
involving an M35 Truck (a two-and-a-half ton military truck). The settlement
amount will be paid by the Company's liability insurance carriers.
Castellon v AM General
On December 13, 1999, former employee Oscar Castellon filed a complaint in US
District Court in South Bend, Indiana. The complaint alleges that, after
Castellon was discharged for theft, the Company refused to reinstate him
because of his race (Hispanic) and national origin. The Company has retained
counsel. Counsel has filed a motion to dismiss Castellon's complaint.
Castellon's counsel has requested an indefinite continuance because of his
(counsel's) ongoing treatment for heart problems. The Company expects to
eventually prevail in this case.
14
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits.
<TABLE>
<CAPTION>
Exhibit No. Description
- ------------------- -----------------------------------------------------------------------
<S> <C>
10.34 Lease dated October 6, 1999 between Dayton Sunrise Partners, L.P.
and AM General Corporation
27 Financial Data Schedule
</TABLE>
(b) Reports on Form 8-K. Registrant did not file any reports on Form 8-K during
the quarter for which this report is filed.
15
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: March 16, 1999 AM GENERAL CORPORATION
Registrant
By /s/ Paul J. Cafiero
--------------------------------
Paul J. Cafiero
Vice President and
Chief Financial Officer
Duly authorized officer and
principal financial and accounting
officer
EXHIBIT INDEX
16
<PAGE>
<TABLE>
<CAPTION>
Exhibit No. Description
- ------------------- -----------------------------------------------------------------------
<S> <C>
10.34 Lease dated October 6, 1999 between Dayton Sunrise
Partners, L.P. and AM General Corporation.
27 Financial Data Schedule
</TABLE>
17
<PAGE>
Exhibit 10.34
LEASE (MULTI-OCCUPANCY NET)
by and between
Dayton Sunrise Partners L.P.
("Landlord")
and
AM General Corporation
("Tenant")
Dated as of: October 6, 1999
1
<PAGE>
INDUSTRIAL LEASE (Single Occupancy, Absolute Net Lease)
Dated as of October 6, 1999
A. DEFINED TERMS, TABLE OF CONTENTS, EXHIBITS
PREMISES AND LANDLORD'S RESERVED RIGHTS
A-1. Defined Terms
-------------
Landlord: Dayton Sunrise Partners L.P.,
an Indiana limited partnership
Landlord's Address: 227 S. Main, Ste. 300
P.O. Box 1331
South Bend, IN 46624
Tenant: AM General Corporation
Tenant's Address: 105 North Niles Avenue
South Bend, Indiana 46634
Guarantor: None
Building: New 90,000 sq. ft. manufacturing/office and warehouse
facility
Premises: Lot and building and related improvements to be
constructed by Landlord
Premises Address: 2000 Watkins Glen Drive,
Franklin, Ohio
Term: Ten (10) Year Lease Term
Commencement Date: The latter of January 1, 2000 or the date the Premises
are substantially completed (as further defined)
Initial Fixed Rent: Not less than $431,700 per year - as subject to
Per Year: adjustment pursuant to Article D-1
Per Month:
Rental Adjustment: Not applicable
Per Year:
Per Month:
Lease Year: Each 365 day period beginning on the Commencement Date
Tenant Share of
Real Property
Taxes: 100%
Tenant's Share of
Operating Expenses: 100%
Permitted Uses: Manufacturing, office and warehouse and any other
lawful use reasonably acceptable to the Landlord
2
<PAGE>
<TABLE>
<CAPTION>
A-2 TABLE OF CONTENTS
<S> <C>
A. DEFINED TERMS, TABLE OF CONTENTS, EXHIBITS,
PREMISES AND LANDLORD'S RESERVED RIGHTS........................................................................ 2
B. LANDLORD'S IMPROVEMENTS........................................................................................ 6
C. TERM........................................................................................................... 11
D. RENT........................................................................................................... 12
E. REAL PROPERTY TAXES............................................................................................ 14
F. INSURANCE...................................................................................................... 16
G. OPERATING EXPENSES, REPAIR AND MAINTENANCE..................................................................... 21
H. ALTERATIONS.................................................................................................... 26
I. UTILITIES AND EASEMENTS........................................................................................ 28
J. USE OF PREMISES................................................................................................ 29
K. DAMAGE AND DESTRUCTION......................................................................................... 33
L. EMINENT DOMAIN................................................................................................. 36
M. DEFAULT........................................................................................................ 38
N. ASSIGNMENT AND SUBLETTING...................................................................................... 43
O. ESTOPPEL CERTIFICATE, ATTORNMENT AND
SUBORDINATION.................................................................................................. 47
P. MISCELLANEOUS.................................................................................................. 50
Q. TENANT'S PURCHASE OPTION....................................................................................... 56
</TABLE>
A-3 Exhibits:
A - Site Plan
B - Lot Legal Description
C - Floor Plan
D - Landlord Work Letter
E - Form of Estoppel Certificate
F - form of Subordination, Non-Disturbance and Attornment Agreement
3
<PAGE>
A-4. Premises
Landlord leases to the Tenant and Tenant leases from Landlord pursuant to
the terms of this Lease those Premises consisting of that approximately 18-acre
tract of land and that Building and related parking lots, driveways and dock
doors serving the Premises, all as depicted on the Site Plan attached as Exhibit
A hereto, to be constructed by Landlord on that parcel of land commonly known as
Watkins Glen Drive, Franklin, Ohio and described in Exhibit B hereto (the "Lot")
pursuant to those approved plans and specifications as further described herein
and that floor plan attached hereto as Exhibit C containing 90,000 square feet
of leaseable space. The parties agree that upon either party's request within
sixty (60) days following the Commencement Date, the Premises shall be
remeasured. If the total leaseable area of the Premises is found to be less
that or greater than the area as set forth above, the Landlord and Tenant shall
execute an amendment to the Lease to correct the discrepancy in the total
leaseable area of the Premises, for all purposes of this Lease. If either party
does not request said remeasuring within the aforesaid 60 day period, the square
footage set forth above shall be deemed accepted by the parties hereto for all
purposes of this Lease.
A-5. Common Area. - Intentionally Deleted
A-6. Landlord's Reserved Rights
Provided Landlord does not unreasonably interfere with Tenant's use of the
Premises and its operations thereon, Landlord reserves the right to enter the
Premises to perform Landlord's obligations, and enforce Landlord's rights under
this Lease. Without limiting the foregoing, Landlord shall have the right to
enter into Premises at any time, in the case of an emergency, and otherwise at
reasonable times and on advance notice to Tenant, for the purpose of showing the
4
<PAGE>
Premises to prospective purchasers, tenants and lenders, inspecting the
condition of the Premises and for verifying compliance by Tenant with this Lease
and all Regulations (as hereinafter defined). In connection with such
inspections or verifications, Landlord may employ experts and/or consultants to
advise Landlord with respect to Tenant's activities, including but not limited
to the operation, use, monitoring, maintenance, or removal of any Hazardous
Materials. The costs and expenses of any such inspections shall be paid by
Landlord, unless a violation of any Regulation, or a contamination, caused or
materially contributed to by Tenant, is found to exist or be imminent, or unless
the inspection is requested or ordered by a governmental authority as the result
of any such existing or imminent violation or contamination. In any such case,
Tenant shall upon request reimburse Landlord for the reasonable costs and
expenses of such inspections. Landlord may at any time place on the Lot or
Building any ordinary "For Sale" signs and Landlord may at any time during the
last three hundred sixty five (365) days of the term hereof place on or about
the Premises any ordinary "For Lease" or "For Sale" signs. All such activities
of Landlord shall be without abatement of rent or liability to Tenant.
Notwithstanding anything to the contrary contained herein, if Landlord
enters the Premises for the purpose of performing work permitted under the terms
of this Lease, including the rights reserved to Landlord under this Article A-6
and elsewhere under this Lease, Landlord agrees to the following:
1. To indemnify Tenant from any and all damages or injures arising out of
the activities of the Landlord, Landlord's agents, employees or
contractors;
2. To schedule work at a time which is mutually convenient for Landlord
and Tenant; and
3. To use its best efforts to minimize interference with Tenant's conduct
of business.
5
<PAGE>
Any time Landlord shall enter upon the Premises to perform repairs or other
work, or any time Landlord is above or below the Premises to perform such
work, Landlord shall indemnify and hold Tenant harmless from any damage to
person or property as a result of such activity.
A-7. Acceptance of Premises - Intentionally Deleted
B. LANDLORD'S IMPROVEMENTS
B- 1. Landlord's Work, Preparation of the Premises and Completion and
--------------- ----------------------------------------------
Delivery
- --------
On or before the term of this Lease of the Premises commences, the
Landlord shall cause the Premises to be completed in accordance with the terms
and conditions of the "Landlord Work Letter" including those plans and
specifications as approved by Tenant attached to this Agreement as Exhibit D
("Landlord's Work"). Except as otherwise provided herein, the Landlord will not
be liable to the Tenant for damages nor will the Tenant be relieved from any
obligations under this Agreement if the Landlord is prevented from completing
the Premises for the Tenant's occupancy by the date the term commences because
of strikes, lockouts, labor controversies, accidents, delays by Tenant,
inability to obtain fuel or supplies, or any other cause beyond the reasonable
control of the Landlord (each a "Force Majeure" event). In such event, however,
the Rent under this Agreement shall abate on a per diem basis until the Premises
are completed, unless the cause for the delay is the result of the Tenant's
request for materials, finishes, or installation other than those set forth in
Exhibit D, the Tenant's changes in the work to be performed by the Landlord and
not approved by the Landlord, the performance by the Tenant or any person
employed by the Tenant of any work on the Premises, or any other cause within
the reasonable control of the Tenant.
6
<PAGE>
Landlord has commenced construction of the Premises and will substantially
complete the Premises and the building of which the same form a part (the
"Building") by January 15, 2000 (the "Delivery Date"). If the Landlord's Work
in the Premises and the Building has not been substantially completed in
accordance with Exhibit D attached hereto by the Delivery Date, except as caused
by a Force Majeure event, including the items set forth in the above paragraph,
Tenant shall receive two (2) days free Rent for each 24-hour period beyond the
Delivery Date until the Premises are substantially complete (as further defined
herein). As used in this Lease, the terms "substantial completion" and
"substantially complete" or words of similar import shall mean Tenant's sole
possession of the Premises, and that (a) Landlord's Work has been completed with
the exception of minor items which can be completed without material
interference with Tenant's use and occupancy of the Premises (b) a Certificate
of Occupancy has been issued for Landlord's work and (c) Landlord's architect
has delivered to Tenant a statement certifying that Landlord's work has been
substantially completed and in compliance with all applicable laws, codes,
regulations and ordinances.
Landlord agrees (unless otherwise provided in Exhibit D), at Landlord's
expense, to perform "Landlord's Work" in a good and workmanlike manner in the
construction of the Premises substantially in accordance with those plans and
specifications attached hereto and made a part hereof as Exhibit D. Landlord
shall construct the Premises using first-quality new materials and performed by
reputable and competent contractors for projects of this sort in compliance with
all applicable laws, ordinances, rules and statutes.
7
<PAGE>
Landlord agrees, at landlord's expense, to obtain and maintain public
liability insurance and workers' compensation insurance adequate to fully
protect Tenant as well as Landlord from and against any and all liability for
death or injury to person or damage to property by reason of construction of
Landlord's Work.
Excepting Force Majeure events but otherwise notwithstanding anything
contained in this Lease to the contrary, if Landlord fails to materially
complete any of the Landlord's Work described on Exhibit D which would prevent
Tenant use and occupancy of the Premises, including the parking lot, and after
sixty (60) days notice to Tenant's Primary Mortgagee (as further defined
herein), if any, and Tenant's Primary Mortgagee has failed to commence the
completion of the Landlord's Work and to have diligently pursued the completion
thereof and as a result thereof Tenant is unable to obtain a certificate of
occupancy, Tenant shall have the right, but not the obligation, to perform such
work and deduct the amounts incurred against the next enduing Rent payments, and
there shall be an abatement of all Rent and other charges payable as Rent or a
continuation of the Free Rent Period, if applicable, until such time as such
work is completed.
Tenant shall have a period of sixty (60) days from the date of substantial
completion of Landlord's Work to provide the Landlord with a list (the "Punch
List") of any defects or incomplete or unsatisfactory items with respect to the
Landlord's Work which are or would be apparent by a visual inspection (the
"Punch List Period"). Landlord shall be obligated within a reasonable amount of
time, not to exceed sixty (60) days from the date of the Punch List, to cure any
such defects, or incomplete or unsatisfactory items, including any Latent
Defects reported by Tenant to Landlord as described below. The Punch List
Period shall not apply to latent defects or those defects which are not or would
not be apparent by a visual inspection and which are otherwise not caused by the
Tenant (hereafter referred to as "Latent Defects") and which solely by way of
8
<PAGE>
example and by no means limiting, include defects to any structural, mechanical
and HVAC electrical, sewerage or plumbing system or component of the Building
which is visible or manifested only underground, within the walls or above the
ceiling or below the floor, and Tenant shall, at any time during the Term of
this Lease, have the right to report to Landlord any Latent Defects which are in
need of repair based upon the obligation of Landlord to do work to the Premises.
Ion connection therewith, the provisions set forth above shall otherwise apply
with respect to Landlord's obligation to cure said Latent Defects. Tenant shall
promptly notify Landlord of its acceptance or nonacceptance of Landlord's Work
setting for the grounds, if applicable, for nonacceptance.
Landlord warrants that upon completion of Landlord's Work the utilities,
including without limitation the HVAC (as hereinafter defined), interior and
exterior of the Premises, will meet with all present laws, codes, regulations
and ordinances at the time the Premises are delivered by Landlord to Tenant. If
at any time the Premises or such utilities do not meet with such laws, codes,
regulations and ordinances as required by regulations of the applicable
governing authorities and which are enforced against Tenant by the applicable
governing authority, then, except for work that is specifically required as a
result of the particular type of operation being conducted by Tenant, the
Premises will be brought current to the proper standards at landlord's expense.
If Landlord fails to prosecute such repairs diligently and continuously until
completion, Tenant may prosecute such repairs itself and apply the cost of same
against the next Rent obligations due hereunder. Landlord shall also be
responsible for paying any and all fines or penalties assessed by any
governmental authority fi the Premises fails to meet codes and regulations of
governmental authorities during the Term of the Lease with respect to items for
which the Landlord is responsible as set forth in Exhibit D under Landlord's
Work.
9
<PAGE>
Moreover, Landlord warrants and guarantees Landlord's Work to have been
accomplished in a first-class manner with good workmanship and quality, new
materials for the longer of the period of twelve (12) months from the Delivery
Date or the length of any warranty or guarantee provided to Landlord from its
general contractor. After expiration of said twelve (12) month or longer
warranty period, Landlord shall assign to Tenant any and all warranties and
guarantees of third parties held by Landlord, except in the event same are
unassignable, and Landlord shall enforce same for the benefit of Tenant.
B-2. Early Entry
-----------
With the prior written consent of Landlord, Tenant may prior to the date
the Premises are Ready for Occupancy and by December 20, 1999, at Tenant's sole
risk, enter the Premises for the sole purpose of installing trade fixtures and
equipment in the Building and preparing the Premises for the operation of
Tenant's business so long as (a) Tenant's early entry shall not interfere with
construction of Landlord's Work, cause any delay in completion of Landlord's
Work, or cause labor difficulties; (b) Tenant shall pay for and provide evidence
of insurance reasonably satisfactory to Landlord; (c) Tenant shall pay utility
charges reasonably allocated by Landlord to Tenant Any such early possession
shall not affect nor advance the expiration date of the Lease Term.
B-3. Delivery Conditions
-------------------
Tenant's acceptance of the Premises shall be further conditioned upon the
following:
(a) Landlord's title to the premises and Lot will be good and marketable
as of the Commencement Date, and there will be no restrictive covenants,
easements, or other agreements, zoning laws or other ordinances or regulations
which will prevent the Tenant from occupying or
10
<PAGE>
using the Premises for the purposes herein provided, or prevent the full use of
the parking areas or otherwise prevent the Lot from being developed in
accordance with the general layout shown on Exhibit A or otherwise conflict with
any of the provision of this Lease.
(b) Landlord represents and warrants to Tenant that Tenant shall be
permitted by authorities having jurisdiction thereover to occupy the Premises
for the uses and purposes herein provided. Landlord further represents and
warrants that the Premises shall be free from any and all materials, substances,
devices or equipment defined as hazardous or otherwise controlled under any
governmental law, rule or regulation, including any asbestos or asbestos-
containing material.
(c) Notwithstanding anything in this Lease to the contrary, landlord shall
be responsible for configuring the Building such that the Building complies with
all current, applicable provisions of the Americans with Disabilities Act (the
"ADA").
C. TERM
C-1. Commencement Date
-----------------
The Term shall commence the latter of January 1, 2000 or the date by which
the Premisees have been determined to be substantially completed and ready for
Tenant's occupancy pursuant to the provisions of Article B-1 or upon receipt of
certificate of occupancy ("Commencement Date") and end one hundred-twenty (120)
months thereafter.
C-2. Option to Extend
----------------
Landlord hereby grants to Tenant one (1) option ("Extension Option") to
extend the Term for a period of five (5) years ("Option Term"). The Extension
Option must be exercised, if at all, by written notice ("Option Notice")
delivered by Tenant to Landlord no later than One Hundred Eighty
11
<PAGE>
(180) days prior to expiration of the lease term as described in Article C-1.
Further, the Extension Option shall, at Landlord's election, become null and
void and of no further force and effect if Tenant is subject to an Event of
Default under this Lease at the time Tenant attempts to exercise the Extension
Option or, following such exercise, prior to the commencement of the Option
Term. The Extension Option is personal to Tenant and may not be exercised by any
person or entity other than Tenant or an assignee permitted under Article N
below. Provided Tenant has properly and timely exercised the Extension Option,
the Term shall be extended for the period specified above, and all terms,
covenants and conditions of the Lease shall remain unmodified and in full force
and effect except that Fixed Rent payable by Tenant during the Option Term shall
be adjusted to the then existing market rate for comparable properties in terms
of use and quality in Warren County, Ohio, but in no event shall the Fixed Rent
for the Option Term be less than that for the Original Term.
D. RENT
D-1. Fixed Rent
----------
Tenant shall cause payment of the Fixed Rent, which shall be determined
upon compoletion of the Building pursuant to the following computation: (total
facility cost / 10,000)x .01246=total annual rent per leaseable building square
foot as based on the applicable financing rate but no less than $431,700 per
year (and $35,975 per month), to be received by Landlord in lawful money of the
United States on or before the first day of each calendar month of the Term at
Landlord's Address, or at such other place designated by Landlord, without
demand, deduction, setoff or counterclaim. All payments of Fixed Rent shall be
made in advance. If the Term commences or ends on a day other than the first day
of a calendar month, Tenant shall pay on the Commencement Date and the first day
of the last partial calendar month Fixed Rent prorated on a per diem basis with
respect to
12
<PAGE>
the portion of the fractional calendar month included in the Term. The parties
agree to prepare and sign an addendum to this Lease setting forth the exact
amount of the Fixed Rent once that amount is capable of being computed pursuant
to the above formula.
D-2. Additional Rent
---------------
All monies required to be paid by Tenant hereunder other than Fixed Rent
including, without limitation, payments for real property taxes (as defined
below) and Operating Expenses (as defined below), if any, shall be considered
additional rent ("Additional Rent"). Tenant shall pay Additional Rent within
twenty (20) days after written notice from Landlord or such earlier or later
date as may be specified elsewhere in this Lease. "Rent" shall mean Fixed Rent
and Additional Rent. All obligations to pay Rent hereunder shall survive the
expiration or earlier termination of this Lease.
D-3. Interest and Late Charge
------------------------
If any installment of Rent is not paid within five (5) business days after
the due date, such amount shall bear interest (the "Interest Rate") at the
lesser of twelve percent per annum (12%) or maximum rate permitted by law from
the date on which said payment shall be due until the date on which Landlord
shall receive said payment regardless of whether or not a notice of default or
notice of termination has been given by Landlord. In addition, if the Rent is
not paid within five (5) business days after the due date, Tenant shall pay
Landlord a late charge of five percent (5%) of the amount delinquent. Landlord
and Tenant recognize that the damage which Landlord shall suffer as a result of
Tenant's failure to pay Rent is difficult to ascertain, said late charge being
the best estimate of the damage which Landlord shall suffer in the event of
Tenant's late payment. This provision shall not relieve Tenant of Tenant's
obligation to pay Rent at the time and in the manner herein specified.
13
<PAGE>
D-4. Security Deposit - Intentionally Deleted
----------------------------------------
D-5. Prepaid Rent - Intentionally Deleted
------------------------------------
E. REAL PROPERTY TAXES
E-1. Tenant's Obligations
--------------------
a. Tenant agrees to pay the Real Property Taxes, as defined below,
which accrue with respect to the Property (including the Lot and the Building)
during the Term of the Lease, and Tenant shall pay to Landlord the Real
Property Taxes within thirty (30) days after receipt from Landlord of the
applicable tax bill and, in any event, not later than the date on which such
Real Property Taxes are due. As used herein, the term "Real Property Taxes"
shall include any form of real estate tax or assessment, general, special,
ordinary or extraordinary, and any license fee, rental tax, parking surcharge,
improvement bond or bonds, levy\\ or tax (other than inheritance, income or
estate taxes) imposed on or with respect to the Premises by any authority having
the direct or indirect power to tax, including any city, state or federal
government, or any school, agricultural, sanitary, fire, street, drainage or
other improvement district thereof, as against any legal or equitable interest
of Landlord in the Premises or in the real property of which the Premises are a
part, as against Landlord's right to Rent or other income therefrom, or as
against Landlord's business of leasing the Premises. The term "Real Property
Taxes" shall also include any tax, fee, levy,
14
<PAGE>
assessment or charge (i) in substitution of, partially or totally, any tax, fee,
levy, assessment or charge herein above included within the definition of "Real
Property Taxes" or (ii) the nature of which was hereinabove included within the
definition of "Real Property Taxes," or (iii) which is imposed as a result of a
transfer, either partial or total, of Landlord's interest in the Premises or
which is added to a tax or charge herein before included within the definition
of Real Property Taxes by reason of such transfer (but not any documentary
transfer tax payable in connection with such transfer), or (iv) which is imposed
by reason of this transaction, any modifications or changes hereto or any
transfers hereof (but not any documentary transfer tax payable in connection
with such transfer) or (v) which is measured by or reasonably attributable to
the cost or value of Tenant's equipment, fixtures or other property located on
the Premises or Tenant's leasehold improvements made in or to the Premises,
regardless of whether title to such improvements shall be in Landlord or Tenant,
or (vi) upon or measured by the rent payable hereunder, (vii) upon or with
respect to the possession, leasing, operation, maintenance, management, repair,
use or occupancy of the Premises or any portion thereof.
b. Any Real Property Taxes shall be prorated between Landlord and Tenant
so Tenant shall pay that proportion which the part of such period within the
Term bears to the entire period; and
c. Any sum payable by Tenant, which would not otherwise be due until
after the date of the termination of this Lease, shall be paid by Tenant to
Landlord upon such termination.
E-2. Limitations
-----------
Nothing contained in this Lease shall require Tenant to pay any franchise,
corporate, estate, inheritance, successions or transfer tax of Landlord, or any
income, profits or revenue tax or charge, upon the net income of Landlord;
provided, however, that if under the laws of the United States
15
<PAGE>
Government or the state in which the Premises are located, or any political
subdivision thereof, a tax or excise on rent, or any other tax however
described, is levied or assessed by any such political body against Landlord on
account of Rent, Tenant shall pay such tax or excise on Rent.
E-3. Personal Property Taxes
-----------------------
Prior to delinquency, Tenant shall pay all taxes and assessments levied
upon trade fixtures, inventories and other personal property located on the
Premises and, on request, Tenant shall provide Landlord copies of receipts for
payment of all such taxes and assessments.
F. INSURANCE
F-1. Property
--------
Landlord shall procure and maintain with respect to the Building (exclusive
of any Tenant improvements, alterations, or installations in the nature of
fixtures other than those constituting Landlord's Work hereunder) a policy or
policies of All Risk of Physical Loss insurance with extended coverage
endorsement attached, including vandalism, malicious mischief, earthquake and
flood coverage, and any other endorsements required by the holder of any fee or
leasehold mortgage in an amount equal to the full replacement value of the
Building at the time of loss, which shall include replacement cost new, debris
removal and demolition thereof. Said policy or policies shall also contain an
agreed valuation provision in lieu of any coinsurance clause, waiver of
subrogation, and inflation guard protection causing an increase in the annual
property insurance coverage amount by a factor of not less than the adjusted
U.S. Department of Labor Consumer Price Index for All Urban Consumers for the
city nearest to where the Premises are located. If such insurance coverage
16
<PAGE>
has a deductible clause, the deductible amount shall not exceed $10,000.00 per
occurrence, and Tenant shall be liable for Tenant's Share of such deductible
amount in the event of an insured loss.
F-2. Liability
---------
Tenant shall, at Tenant's sole expense, maintain in full force a policy or
policies of Commercial General Liability Insurance or Comprehensive General
Liability Insurance (on an occurrence form) insuring bodily injury, personal
injury and property damage including the following divisions and extensions of
coverage: Premises and Operations; blanket contractual liability (including
coverage for Tenant's indemnity obligations under this Lease). Such insurance
must have the following minimum limits of liability: bodily injury, personal
injury and property damage - $5,000,000 each occurrence, and further, such
minimum limits of liability may be reasonably adjusted from year to year to
reflect increases in coverages as recommended by Landlord's insurance carrier as
being prudent and commercially reasonable for similarly situated tenants.
If Tenant has in full force and effect a blanket policy of liability
insurance with the same coverage for the Premises as described above, as well as
coverage of other premises and properties of Tenant, or in which Tenant has some
interest, such blanket insurance shall satisfy the requirements hereof. Tenant
shall also maintain at Tenant's expense (i) Worker's Compensation or similar
insurance in such amounts and coverage as required by the laws of the state in
which the Premises are located, with at least the following minimums limits of
liability: Coverage A - statutory benefits; Coverage B -$1,000,000 per accident
and disease, (ii) insurance coverage on all of Tenant's personal property,
Tenant's alterations and installations in the nature of tenant improvements or
fixtures in, on, or about the Premises similar in coverage to that carried by
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Landlord, and (iii) any other form or forms of insurance as Tenant or Landlord
or any mortgagees of Landlord may reasonably require from time to time in form,
in amounts, and for insurance risks against which, a prudent tenant would
protect itself, but only to the extent coverage for such risks and amounts are
available in the insurance market at commercially reasonable rates and said
coverage is customarily covered by Tenants in similar buildings in Warren
County, Ohio. Landlord makes no representation that the limits of liability
required to be carried by Tenant under the terms of this Lease are adequate to
protect Tenant's interests and Tenant should obtain such additional insurance or
increased liability limits as Tenant deems appropriate.
F-3. Rental Abatement Insurance
--------------------------
Landlord shall maintain in full force and effect rental abatement insurance
against abatement or loss of Rent in case of fire or other casualty, in an
amount at least equal to the amount of the Rent (including all Real Estate
Taxes, insurance costs, and scheduled Rent increases) payable by Tenant over the
current full Lease Year. Said insurance shall provide that in the event the
Lease is terminated by reason of an insured loss, the period of indemnity for
such coverage shall be extended beyond the date of the completion of repairs or
replacement of the Premises, to provide for one full year's loss of rental
revenues from the date of any such loss. Said insurance shall contain an agreed
valuation provision in lieu of any coinsurance clause, and the amount of
coverage shall be adjusted annually to reflect the projected rental income,
property taxes, insurance premium costs and other expenses, if any, otherwise
payable by Tenant, for the next twelve (12) month period.
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F-4. Supplemental Tenant Insurance Requirements
------------------------------------------
All policies must be in a form reasonably satisfactory to Landlord and
issued by an insurer admitted to do business in the state in which the Premises
are located. All policies must be issued by insurers with a policyholder rating
of at least "A" and a financial rating of at least "X" in the most recent
version of Best's Key Rating Guide. If any initial or replacement policies or
certificates are not furnished within the time(s) specified herein, Tenant will
be deemed to be in material default under this Lease, and Landlord will have the
right, but not the obligation, to procure such insurance as Landlord deems
necessary to protect Landlord's interests at Tenant's expense. If Landlord
obtains any insurance that is the responsibility of Tenant under this Article F,
Landlord agrees to deliver to Tenant a written statement setting forth the cost
of any such insurance and showing in reasonable detail the manner in which it
has been computed and Tenant agrees to promptly reimburse Landlord for such
costs as Additional Rent.
Landlord shall be named as additional insureds under each policy of
insurance maintained by Tenant. Tenant shall furnish to Landlord on the
Commencement Date, and thereafter with advanced notice prior to the expiration
of each such policy, certificates of insurance issued by the insurance carrier
of each policy of insurance carried by Tenant pursuant hereto. Each certificate
shall expressly provide that such policies shall not be cancelable or subject to
reduction of coverage or otherwise be subject to modification except after prior
written notice to the parties named as insureds in this Article F-4.
F-5. Tenant's Failure
----------------
If Tenant fails to maintain any insurance required by the terms of this
Lease to be maintained by Tenant, Tenant shall be liable for all losses and
costs resulting from said failure.
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Nothing herein shall be a waiver of any of Landlord's rights and remedies under
any other article of this Lease or at law or equity.
F-6. Waiver of Subrogation
---------------------
Landlord and Tenant and all parties claiming under them mutually release
and discharge each other and any partner, director, officer, agent or employee
thereof from all claims and liabilities arising from or caused by any occurrence
covered by the property insurance required to be carried under Article F-1 of
this Lease, regardless of the cause of the damage or loss, to the extent of such
insurance coverage. Any policies of insurance to be maintained hereunder shall,
unless prohibited by law, contain provisions in which the rights of subrogation
against Landlord and Tenant are waived by the insurance carrier.
F-7. Indemnification of Landlord and Tenant
--------------------------------------
Tenant shall indemnify and hold Landlord and the Premises harmless from and
against (a) all liabilities, penalties, losses, damages, costs and expenses,
demands, causes of action, claims or judgments in connection with any injury to
persons or damage to property as a result of any accident or other occurrence
occasioned by any act or omission of Tenant, Tenant's officers, employees,
agents, servants, subtenants, concessionaires, contractors, or visitors
(collectively, the "Tenant Parties" or individually "Tenant Party") or arising
from the use, maintenance, occupation or operation of the Premises; and all
legal costs and charges, including actual attorneys' fees, in connection with
such matters and the defense of any action arising out of the same or in
discharging the Premises from any and all liens, charges or judgments which may
accrue or be placed thereon by reason of any act or omission of any Tenant
party; provided, however, that Tenant shall not
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indemnify Landlord or any injury or damage arising as the result of Landlord's
or Landlord's agents, employees or contractors negligence or willful misconduct.
Landlord shall indemnify and hold Tenant harmless from and against any and all
liabilities, penalties, losses, damages, costs and expenses, demands, causes of
action, claims or judgments in connection with (I) any injury to persons or
damage to property as a result of any accident or occurrence caused by any act
or omission of Landlord or landlord's agents, employees or contractors, or (ii)
result from any default, breach, violation or non-performance of this Lease or
any provision hereof by Landlord, including actual attorney fees in connection
with such matters and defense of any action arising out of the same.
F-8. Landlord Liability
------------------
Except due to Landlord's or Landlord's agents, employees or contractors
negligence or willful misconduct, Landlord shall not be liable for injury or
damage to the person or goods, wares, merchandise or other property of any
Tenant Party, whether such damage or injury is caused by or results from fire,
steam, electricity, gas, water or rain, or from the breakage, leakage,
obstruction or other defects of pipes, fire sprinklers, wires, appliances,
plumbing, air conditioning or lighting fixtures, or from any other cause, and
regardless of whether the said injury or damage results from conditions arising
upon the Premises, or from other sources or places. Unless caused by Landlord's
gross negligence or willful misconduct, Landlord shall under no circumstances be
liable for any consequential damages (including any loss of income or profit to
Tenant's business).
G. EXPENSES, REPAIR AND MAINTENANCE
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G-1. Operating Expenses
------------------
Tenant shall pay to Landlord the following costs and expenses (hereinafter
collectively referred to as "Expenses"): (i) insurance premiums for the
insurance obtained by Landlord pursuant to Article F and (ii) Real Property
Taxes accruing with respect to the Property pursuant to Article E.
G-2. Tenant Repairs and Maintenance
------------------------------
Subject to Article G-3, Tenant shall, at Tenant's sole cost and expense,
keep and maintain the entire Premises, and every part thereof, including the
HVAC system serving the Premises, interior plumbing, loading dock and doors,
electrical wiring, signage, floor coverings, and fixtures and equipment in good
repair and in a clean, safe and good operating condition, and shall repair
and/or replace any and all of the foregoing in a good and workmanlike manner as
needed. Tenant shall, at Tenant's sole expense, immediately replace all broken
glass in the Premises with glass equal to the specification and quality of the
original glass. Tenant shall, at Tenant's sole expense, enter a regularly
scheduled preventive maintenance/service contract with a maintenance contractor
for servicing all hot water, heating and air conditioning systems and equipment
serving the Premises and shall provide evidence of the same to Landlord at
Landlord's request. Tenant shall, at Tenant's sole expense, repair any area
damaged by any Tenant Party provided that Tenant obtains Landlord's prior
approval with respect to the method and quality of such repair. Notwithstanding
anything in Article G-1 or G-2 to the contrary, if the cost of replacement of
any item is Tenant's responsibility is a Capital Major Replacement (as defined
below) than Tenant shall be liable for only a fraction of such cost ("Tenant's
Share"), which is the product of multiplying the actual cost of the Capital
Major Replacement times a fraction, the numerator of which fraction shall be the
number of months remaining in the Lease term following completion of such
Capital Major
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Replacement, (excluding any unexercised option term), and the denominator of
which fraction shall be the number of months in the expected useful life of such
Capital Major Replacement, and Landlord shall be liable for the remainder of
such cost up to an amount not to exceed $100,000.00 ("Landlord's Share");
provided, that upon Tenant's exercise of any option to extend the Term of this
Lease, Tenant shall pay to Landlord, within thirty (30) days after Landlord's
written request, an amount equal to that portion of Landlord's Share, if any,
which relates to the option term so exercised. If Landlord performs a Capital
Major Replacement, Tenant shall reimburse Landlord for Tenant's Share of the
cost of such Capital Major Replacement, within thirty (30) days following
completion of the same.
As used herein, "Capital Major Replacement" means an expenditure the cost
of which exceeds $25,000.00 and is required to be treated as a capital expense
under Generally Accepted Accounting Principles. Notwithstanding the foregoing,
there shall be excluded from the definition of "Capital Major Replacement" any
maintenance, repair or replacement required as a result of the negligent acts or
omissions of Tenant or its agents, employees or contractors, or resulting from
the failure of Tenant to perform in a timely manner its obligations under this
Lease.
G-3. Landlord Repairs and Maintenance
--------------------------------
Except for defects occurring solely as a result of Tenant's actions for
which Tenant shall bear sole responsibility and cost, and in addition to the
Landlord's obligations set forth in Article B-1 concerning Latent Defects,
Landlord covenants and agrees, at its expense without reimbursement or
contribution by Tenant, to keep, maintain and replace, if necessary, the
underground plumbing on site or sewage systems and all structural systems
including, without limitation, the roof, roof membrane, rood covering (including
interior ceiling if damaged by leakage but excluding any damage or repairs which
are caused by the acts of the Tenant which result in the breach, avoidance
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or non-applicability of any warranty with respect thereto), and load-bearing
walls and floor slabs and foundations necessary to preserve or maintain the
useful life of any such component or system. Tenant agrees to provide normal and
customary maintenance of the roof and Landlord will provide annual inspections
of the rood, accompanied by a representative of Tenant. In the event the
Premises become or are out of repair and not in normal operating condition due
to either the failure of Landlord to comply with the terms of this Article G-3
or which constitute a Latent Defect, excepting however a Force Majeure event,
then Landlord shall perform or cause to be performed any and all repairs
necessary to restore the Premises to a state of normal operating condition and
repair. If such repairs are not completed within ten (10) days after Landlord
has received written notice from Tenant of such state of disrepair or if such
repairs cannot reasonably be completed within such ten (10) day period and
Landlord shall fail to commence such repairs within ten (10) days after notice
and proceed diligently thereafter, then Tenant may prosecute such repairs itself
and apply the cost of such repairs against the next maturing monthly installment
or installments of Rent due hereunder. Notwithstanding the foregoing in the case
of an emergency (such as, without limitation, a leaking roof) Tenant shall have
the right to prosecute immediately any and all necessary repairs and shall
deliver contemporaneous notification to Landlord of the emergency and related
repairs and offset the cost of such repairs against the next maturing monthly
installment or installments of Rent due hereunder; provided further that if
contemporaneous notice is not practicable, as determined by Tenant in its sole
judgment, then Tenant shall provide such notice as soon thereafter as reasonably
practicable.
Notwithstanding anything contained in this Lease to the contrary, in the
event that Tenant is prevented from using the Premises, or any portion thereof,
for two (2) consecutive business days ("Eligibility Period"), as a result of any
failure of Landlord to provide access to the Premises or
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essential utilities or services to the Premises, and Tenant has not used the
Premises as a result, then Rent shall be abated or reduced, as the case may be,
during the period after the Eligibility Period for such time that Tenant
continues to be so prevented from using the Premises or a portion thereof, in
the proportion that the square footage of the portion of the Premises that
Tenant is prevented from using bears the total square footage of the Premises.
However, in the event that Tenant is prevented from conducting its business in
any portion of the Premises for a period in excess of the Eligibility Period as
a result of the foregoing failure to provide access or essential utilities or
services to the Premises, and the remaining portion of the Premises is not
sufficient to allow Tenant to effectively conduct its business therein, and if
Tenant does not conduct its business from such remaining portion, then for such
time after the Eligibility Period during which Tenant is so prevented from
effectively conducting its business therein, Rent for the entire Premises shall
be abated; provided, however, if Tenant reoccupies and conducts its business
from any portion of Premises during such period, the Rent allocable to such
reoccupied portion, based on the proportion that the square footage of the
reoccupied portion of the Premises bears to the total square footage of the
Premises, shall be payable by Tenant from the date such business operations
commenced. Except as provided in this Article G or in Articles K or L below, it
is intended by the parties hereto that Landlord have no obligation, in any
manner whatsoever, to repair and maintain the Premises, the improvements located
thereon, or the equipment therein, all of which obligations are intended to be
that of the Tenant under Article G-2 hereof. It is the intention of the Parties
that the terms of this Lease govern the respective obligations of the Parties as
to maintenance and repair of the Premises. Tenant and Landlord expressly waive
the benefit of any statute now or hereafter in effect to the extent it is
inconsistent with the terms of this Lease with respect to, or which affords
Tenant the right to make repairs at the expense of Landlord or to terminate this
Lease by reason of any needed repairs.
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G-4. Liens
-----
Tenant shall promptly pay and discharge all claims for labor performed,
supplies furnished and services rendered at the request of Tenant and shall keep
the Premises free of all mechanics' and materialmen's liens in connection
therewith. Landlord shall have the right to post on the Premises, or in the
immediate vicinity thereof, notices of non-responsibility for any construction,
alteration or repair by Tenant on the Premises to the extent provided for in
Articles G-2 and H. If any such lien is filed, Landlord may, but shall not be
required to, take such action as may be necessary to remove such lien, and
Tenant shall pay Landlord such amounts expended by Landlord together with
interest thereon at the Interest Rate from the date of expenditure.
H. ALTERATIONS
Tenant, at Tenant's sole expense, may install necessary trade fixtures,
equipment and furniture in the Premises provided that such items are installed
and are removable without structural damage to the Building. Said trade
fixtures, equipment and furniture shall remain Tenant's property and shall be
removed by Tenant prior to expiration of the Term or upon earlier termination of
this Lease. Landlord reserves the fight to approve or disapprove of any
alterations to the exterior appearance of the Building and any interior
improvements visible from outside the Premises on wholly aesthetic grounds. Such
improvements must be submitted for Landlord's written approval prior to
installation or Landlord may remove or replace such items at Tenant's sole
expense. Upon Landlord's prior written approval, which shall not be unreasonably
withheld, delayed or conditioned. Tenant may make non-structural alterations to
the Premises and may also install
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temporary improvements in the interior of the Premises, provided that such
improvements are installed and are removable without structural damage to the
Building and excepting minor, non-structural alterations such as painting or re-
carpeting which do not cost in excess of $25,000 which Tenant may perform
without Landlord's consent. All approvals given by Landlord pursuant to this
Article H shall be deemed conditioned upon (i) Tenant's acquiring all applicable
permits required by governmental authorities, (ii) furnishing of copies of such
permits together with a copy of the plans and specifications to Landlord prior
to commencement of the work thereon, and (iii) the compliance by Tenant with all
conditions of said permits in a prompt and expeditious manner. Any alterations
or installations by Tenant during the term of this Lease shall be done in a good
and workmanlike manner, with good and sufficient materials, and in compliance
with all Regulations. If a notice of completion is required for such work,
Tenant shall file it and provide Landlord with a copy. Tenant shall, at Tenant's
cost, provide Landlord with a set of "as-built" drawings for any work which
Tenant undertakes. Tenant shall repair, at Tenant's sole expense, all damage to
the Premises and/or Building caused by the installation or removal of trade
fixtures, equipment, furniture or temporary improvements. If Tenant fails to
remove the foregoing items on termination of this Lease, Landlord shall, be the
owner of such items. The parties agree that although Tenant's storage racks will
be bolted to the floor of the Premises, they will remain the personal property
of Tenant, and will be removed by Tenant on or prior to at the expiration or
earlier termination of the Lease and Tenant shall promptly repair any damage
caused by such removal.
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I. UTILITIES AND EASEMENTS
I-1. Utilities
---------
Tenant agrees to contract directly for and shall promptly pay all charges
for heat, water, gas, electricity and any other utilities used or consumed on
the Premises, all of which shall be separately metered, except water. If any of
such utilities are not separately metered, Tenant shall pay a prorata share,
based on use, as reasonably determined by Landlord. Notwithstanding anything to
the contrary above, in the event any utility service furnished to the Premises
shall be interrupted by reason of negligent or willful act of Landlord, then in
addition to any other rights and remedies available to Tenant under this Lease
or under law and provided further that such service is not restored within
forty-eight (48) hours following such failure or inability (which period shall
not be extended by Force Majeure), Tenant shall be entitled to an abatement of
rent for each day thereafter that such service is not furnished until the date
that such service is restored.
I-2. Easements
---------
Landlord hereby reserves the right and authority to grant easements on the
Lot and dedicate for public use portions of the Lot without Tenant's consent;
provided that no such grant or dedication shall materially interfere with
Tenant's use of the Premises. Upon Landlord's demand, Tenant shall execute,
acknowledge and deliver to Landlord documents, instruments, maps and plans
necessary to effectuate Landlord's reservation hereunder.
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J. USE OF PREMISES
J-1. General
-------
Tenant shall use and occupy the Premises only for the Permitted Uses in
compliance with all Regulations applicable to the Premises or Tenant's use of
the Premises. Subject to Articles B-1 and G-3, by taking occupancy of the
Premises, Tenant accepts the Premises in the condition existing as of the
Commencement Date, subject to all applicable municipal, county, state and
federal statutes, laws and ordinances, including zoning ordinances and
regulations governing and relating to the use, occupancy and possession of the
Premises (collectively "Regulations"). Tenant shall, at Tenant's sole expense,
comply with all Regulations now in force or which may hereafter be in force
relating to the Premises or the use of the Premises including, but not limited
to, any obligation to modify or alter the Premises or Building by reason of any
regulation imposed after the date of this Lease and required and enforced by the
applicable governmental authority. Tenant shall not commit waste, overload the
floors or structure of the Building, subject the Premises to any use which would
damage the Premises, use the Premises in any manner to create a nuisance or
disturb the occupants of neighboring premises or properties, or raise or violate
any insurance coverage required by this Lease or take any action that would
impair parking or alter parking spaces.
J-2. Signs
-----
Any sign placed by Tenant on the Premises, except in the interior portions
of the Building not visible from the outside, shall contain only Tenant's name
and no advertising material. No sign shall be placed on the Premises without
Landlord's written approval of the location, material, size,
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design and content thereof which shall not be unreasonably withheld, delayed or
conditioned nor without Tenant's obtaining any necessary permit therefor. No
signs shall be placed on the roof of the Premises. If Landlord installs a sign
for Tenant, Tenant shall reimburse Landlord for any costs incurred by Landlord
within thirty (30) days of demand by Landlord. Tenant shall remove any sign
installed by or on behalf of Tenant upon termination or expiration of this Lease
and shall return the Premises to their condition prior to the placement of said
sign.
J-3. Parking Access - Intentionally Deleted
--------------------------------------
J-4. Environmental Liabilities
-------------------------
a. Hazardous Materials. Except as set forth herein, Tenant shall not
-------------------
cause or permit any Hazardous Materials (as defined below) to be used,
generated, stored, released, handled or disposed of on, under or about, or
transported to or from, the Property (collectively "Hazardous Materials
Activities") by any Tenant Party without first receiving Landlord's written
consent, which may be withheld for any reason whatsoever and which may be
revoked at any time, and then only in compliance (which shall be at Tenant's
sole cost and expense) with all applicable laws and regulations and using all
necessary and appropriate precautions. Landlord acknowledges, however, that
Tenant will maintain products in the Premises which are incidental to the
maintenance of its Premises or for Tenant's manufacturing operations and general
office use, which products contain chemicals and other substances which are
categorized as Hazardous Materials. Landlord agrees that the use of such
products in the Premises in material compliance with all applicable laws and
regulations and in the manner which such products are designated to be used
shall not be a violation of this Article J-4. Landlord may (but without any
obligation to do so) condition its consent to any
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Hazardous Materials Activity by Tenant upon Tenant's giving Landlord such
additional assurances as Landlord, in its discretion, deems necessary to protect
itself, the public, the Property and the environment against damage,
contamination or injury and/or liability therefrom or therefor, including, but
not limited to, the installation (and removal on or before Lease expiration or
earlier termination) of reasonably necessary protective modifications to the
Property (such as concrete encasements) and/or the deposit of a security
deposit. Landlord shall not be liable to Tenant for any Hazardous Materials
Activities by Tenant, Tenant's employees, agents, contractors, licensees or
invitees. Tenant shall indemnify, defend with counsel acceptable to Landlord and
hold Landlord harmless from any against any claims, damages, costs and
liabilities arising out of Tenant's Hazardous Materials Activities on, under or
about the Property. This indemnity shall survive the expiration or earlier
termination of this Lease. Landlord shall not be liable to Tenant regardless of
whether or not Landlord has approved Tenant's Hazardous Materials Activities.
"Hazardous Materials" shall include but not be limited to any material or
substance which is (a) defined as a "hazardous waste," "extremely hazardous
waste," or "restricted hazardous waste" pursuant to Ohio Law.
Landlord represents to the best of its knowledge that (a) the Premises are
not in violation of any federal, state or local law, rule or ordinance relating
to pollution or protection of the environment (collectively, as the same exist
at the date hereof, the "Environmental Laws"), including, without limitation,
laws relating to emissions, discharges, spills, releases or threatened releases
of pollutants, contaminants, chemicals or industrial, toxic or hazardous
substances or wastes into the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface stata) and
(b) pollutant, contaminant, chemical or industrial, toxic or hazardous substance
or waste has (I) been buried, stored, manufactured, used,
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treated or disposed of in or about the Premises in a manner not in compliance
with the Environmental Laws or (ii) spilled, leaked, discharged, emitted or
released on the Lot.
Landlord has furnished to Tenant a copy of an environmental audit
undertaken by Landlord with respect to its acquisition of the Property, (the
"Environmental Audit"). The information produced in connection with the
Environmental Audit shall constitute baseline data which is intended to assist
the parties hereto in making any future determination as to whether any
Environmental Laws have been breached or violated as of or prior to the
Commencement Date; provided, however that such baseline data shall not be deemed
to be conclusive with respect to such issue. Except that which is disclosed in
the Environmental Audit, Landlord agrees to indemnify, defend and hold the
Tenant and its officer, directors, employees and agents harmless from any and
all claims, judgments, damages, penalties, fines, costs, liabilities or losses,
including, but not limited to, attorneys' and legal assistants' fees,
consultants fees and experts fees which arise during or after the Lease Term as
a result of any violation by Landlord of this provision. This indemnification
shall survive the termination of this Lease.
b. Duty to Inform Landlord. If Tenant knows, or has reasonable cause to
------------------------
believe, that a Hazardous Material, or a condition involving or resulting from
same, has come to be located in, on, under or about the Premises, other than as
previously consented to by Landlord, Tenant shall immediately give written
notice of such fact to Landlord, Tenant shall also immediately give Landlord a
copy of any statement, report, notice, claim, action or proceeding given to, or
received from, any governmental authority or private party, concerning the
presence, spill, release, discharge of, or exposure to, any Hazardous Material
or contamination in, on, or about the Property.
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K. DAMAGE AND DESTRUCTION
K-1. Reconstruction
--------------
If the Building is damaged or destroyed by casualty, Landlord shall, except
as hereinafter provided, diligently repair or rebuild the Building to
substantially the condition in which the Building existed immediately prior to
such damage or destruction, excluding, unless Landlord causes such damage.
Tenant shall repair any damage to the Premises which is estimated in good faith
by Landlord to be less than the deductible amount under any applicable insurance
policy of Landlord; provided, however, that such deductible amount shall not
exceed Ten Thousand Dollars ($10,000.00). Landlord shall reimburse Tenant upon
written demand for expenses incurred by Tenant in such repair work which are not
covered by insurance carried by Tenant or required by this Lease to be carried
by Tenant to the extent of any proceeds received by Landlord from the insurance
described in Article F. Landlord shall not be obligated to repair or replace
any improvements made by or for Tenant, and Tenant trade fixtures or
installations, except Landlord's Work under Exhibit "C".
K-2. Rent Abatement
--------------
Rent shall be abated proportionately during any period when, by reason of
such damage or destruction, there is substantial interference with Tenant's use
of the Building, having regard to the extent to which Tenant may be required to
discontinue Tenant's use of the Building. Such abatement
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shall commence upon such damage or destruction and end upon substantial
completion by Landlord of the repair or reconstruction which Landlord is
obligated or undertakes to do. If continuation of Tenant's business is not
practical pending reconstruction, Rent shall abate until reconstruction is
substantially completed or until business is totally or partially resumed,
whichever occurs earlier.
K-3. Option to Terminate
-------------------
If the Building is damaged or destroyed to such extent that Landlord
reasonably determines that the Building cannot, with reasonable diligence, be
fully repaired or restored by Landlord within one hundred eighty (180) days
after the date of the damage or destruction, the sole right of both Landlord and
Tenant shall be the option to terminate this Lease within thirty (30) days after
the date of Landlord's determination. Landlord shall notify Tenant of Landlord's
determination, in writing, within thirty (30) days after the date of the damage
or destruction. If Landlord fails to timely notify Tenant that such repairs
cannot be completed within said one hundred eighty (180) day period, Landlord
shall be deemed to have acknowledged that it believes such repairs can be
completed within one hundred eighty (180) days and shall be required to make
such repairs. If Landlord reasonably determines that the Building can be fully
repaired or restored within the one hundred eighty (180) day period, or if
Landlord determines that such repair or restoration cannot be made within said
period but neither party elects to terminate within thirty (30) days from the
date of said determination, this Lease shall remain in full force and effect and
Landlord shall diligently repair and restore the damage as soon as reasonably
possible. Landlord and Tenant shall also each have the fight to terminate this
Lease if any damage to the Premises or the Building occurs during the last
twelve (12) months of the Term of this Lease if Landlord's contractor estimates
in a writing delivered to Landlord and Tenant that the repair, reconstruction or
restoration of such damage
34
<PAGE>
cannot be completed within sixty (60) days after the date of such casualty. If
either party desires to terminate this Lease under the preceding sentence, it
shall provide written notice to the other party of such election within thirty
(30) days after receipt of Landlord's contractor's repair estimates. Upon any
termination of this Lease under any of the provisions of this Article, the
parties will be released without further obligation to the other from the date
possession of the Premises is surrendered to Landlord except for items which
have accrued and are unpaid as of the date of termination and matters which are
to survive any term/nation of this Lease as provided in this Lease.
Notwithstanding anything herein in this Article K-3 to the contrary, in the
event the Premises remain untenantable for a period in excess of 180 days from
the date the Landlord notifies the Tenant of its intentions or repair,
reconstruct or restore the Building or is deemed to have made that determination
pursuant to the above paragraph, Tenant shall have the right to terminate this
Lease upon thirty (30) days written notice given no later than thirty (30) days
after the expiration of the 180 day period. If Tenant elects not to terminate
this Lease in such event, Rent shall abate at double the amount of the daily
rate for each day following the 180 day period the Premises are not ready for
Tenant's occupancy excepting where such delay is the fault of the Tenant.
K-4. Uninsured Casualty
------------------
In the event the Building is damaged or destroyed by any casualty not
covered by the insurance policy required to be carried by Landlord under Article
F or if Landlord's lender does not permit such insurance proceeds to be used for
restoration of the Building, Landlord, subject however to Tenant's rights under
Article Q, may terminate this Lease by written notice to Tenant given within
thirty (30) days after the uninsured casualty or the date Landlord's lender
notifies Landlord that the insurance proceeds shall not be made available. If
Landlord does not elect to
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terminate this Lease, the Lease shall remain in full force and effect, and the
Building shall be repaired and rebuilt in accordance with the provisions for
repair set forth in Article K-1.
L. EMINENT DOMAIN
L-1. Total Condemnation
------------------
If all of the Premises is condemned by eminent domain, inversely condemned
or sold in lieu of condemnation, for any public or quasi-public use or purpose
("condemned"), this Lease shall terminate as of the date of title vesting in
such proceeding, and Rent shall be adjusted to the date of termination.
Landlord shall immediately notify Tenant of any such occurrence.
L-2. Partial Condemnation
--------------------
If any portion of the Premises is condemned, and such partial condemnation
renders the Premises unusable for Tenant's business, as reasonably determined by
Tenant, this Lease shall terminate as of the date of title vesting in such
proceeding and Rent shall be adjusted to the date of termination. If such
partial condemnation does not render the Premises unusable for the business of
Tenant, Landlord shall promptly restore the Premises to the extent of any
condemnation proceeds recovered by Landlord, less the portion thereof lost in
such condemnation, and this Lease shall continue in full force and effect except
that after the date of such title vesting the Rent shall be adjusted thereafter
based on the remaining useable square footage of the Premises, as reasonably
determined by Landlord and rent shall be abated on such basis to the extent and
during such time as the Premises are rendered unusable.
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L-3. Landlord's Award
----------------
If the Premises are wholly or partially condemned, Landlord shall be
entitled to the entire award paid for such condemnation, subject to the
provisions of Article L-4, and Tenant waives any claim to any part of the award
from Landlord or the condemning authority.
L-4. Tenant's Award
--------------
Tenant shall have the right to recover from the condemning authority, but
not from Landlord, such compensation as may be separately awarded to Tenant in
connection with costs in removing Tenant's merchandise, furniture, fixtures,
leasehold improvements and equipment to a new location and any other awards to
which the Tenant is eligible or entitled to receive.
L-5. Temporary- Condemnation
-----------------------
In the event of a temporary condemnation of the Premises, as reasonably
determined by Landlord, this Lease shall remain in effect and Tenant shall
receive any award made for such condemnation. Tenant's obligations with respect
to the extension and purchase options provided under Articles C-2 and Q shall be
suspended during the period of any temporary condemnation unless Tenant notifies
Landlord in writing that it waives such suspension.
L-6. Delivery of Documents
---------------------
From time to time upon Landlord's written request, Tenant shall immediately
execute and deliver to Landlord all instruments reasonably required to
effectuate the provisions of this Article L.
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M. DEFAULT
M-1. Events of Defaults
------------------
The occurrence of any of the following events shall constitute an "Event of
Default" by Tenant without notice (except as otherwise provided) from Landlord:
a. Abandonment. The abandonment of the Premises;
-------------
b. Payment. Failure to pay Rent due hereunder on the date when due,
--------
the failure continuing for a period of five (5) business days after written
notice thereof by or on behalf of Landlord to Tenant;
c. Performance. Default in the performance of Tenant's covenants,
-------------
agreements and obligations hereunder, except default in the payment of Rent, the
default continuing for thirty (30) days after written notice thereof from
Landlord. If the nature of Tenant's default is such that more than thirty (30)
days are reasonably required for its cure, then Tenant will not be deemed to be
in default if Tenant commences such cure within such thirty (30) day period and
thereafter diligently prosecutes such cure to completion; or
d. Insolvency Events. The making by Tenant of any general assignment
-------------------
for the benefit of creditors; the filing by or against Tenant of a petition to
have Tenant adjudged a bankrupt or a petition for reorganization or arrangement
under any law relating to bankruptcy (unless, in the case of a petition filed
against Tenant, the same is dismissed within sixty (60) days); the appointment
of a trustee or receiver to take possession of substantially all of Tenant's
assets located at the Premises or of Tenant's interest in this Lease, where
possession is not restored to Tenant within thirty (30) days; or the attachment,
execution or other judicial seizure of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease where such seizure
is not discharged
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within thirty (30) days.
M-2. Landlord's Remedies
-------------------
a. Landlord's Remedies; Termination. Upon the occurrence of any Event of
---------------------------------
Default by Tenant, in addition to any other remedies available to Landlord at
law or in equity under applicable law, Landlord will have the immediate fight
and option to terminate this Lease and all rights of Tenant hereunder. If
Landlord elects to terminate this Lease then, to the extent permitted under
applicable law, Landlord may recover from Tenant: (i) the amount of any unpaid
rent which had been earned at the time of such termination; plus (ii) the worth
at the time of award of the amount by which the unpaid rent for the balance of
the Term exceeds the amount of such rent loss that Tenant proves is or could be
reasonably avoided; plus (iii) any other amount necessary to compensate Landlord
for all the detriment proximately caused by Tenant's failure to perform its
obligations under this Lease or which, in the ordinary course of things, results
therefrom including, but not limited to: attorneys' fees and costs; brokers'
commissions; the costs of refurbishment, renovation and repair of the Premises,
and removal (including the repair of any damage caused by such removal) and
storage (or disposal) of Tenant's personal property, equipment, fixtures.
As used in (a)(i) and (ii) above, the "worth at the time of award" is
computed by discounting such amount at the discount rate of the Federal Reserve
Bank of Chicago at the time of award plus one percent (1%).
b. Landlord's Remedies; Re-Entry Rights. Upon an Event of Default by
-------------------------------------
Tenant, in addition to any other remedies available to Landlord under this
Lease, at law or in equity, Landlord will also have the right, with or without
terminating this Lease, to re-enter the Premises and remove all persons and
property from the Premises; such property may be removed and stored in a public
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warehouse or elsewhere and/or disposed of at the sole cost and expense of and
for the account of Tenant in accordance with the provisions of this Lease or any
other procedures permitted by and to the extent of applicable law. No re-entry
or taking possession of the Premises by Landlord pursuant to this Article M-2
will be construed as an election to terminate this Lease unless a written notice
of such intention is given to Tenant or unless the term/nation thereof is
decreed by a court of competent jurisdiction.
c. Landlord's Remedies; Re-Letting. In the event of the vacation or
--------------------------------
abandonment of the Premises by Tenant or in the event that Landlord elects to
re-enter the Premises or takes possession of the Premises pursuant to legal
proceeding or pursuant to any notice provided by law, then if Landlord does not
elect to terminate this Lease, Landlord may from time to time, without
terminating this Lease, either recover all rent as it becomes due or relet the
Premises or any part thereof on terms and conditions as Landlord in its sole and
absolute discretion may deem advisable with the fight to make alterations and
repairs to the Premises in connection with such reletting. If Landlord elects to
relet the Premises, then rents received by Landlord from such reletting will be
applied: first, to the payment of any indebtedness other than rent due hereunder
from Tenant to Landlord; second, to the payment of any cost of such reletting;
third, to the payment of the cost of any alterations and repairs to the Premises
incurred in connection with such reletting; fourth, to the payment of rent due
and unpaid hereunder and the residue, if any, will be held by Landlord and
applied to payment of future rent as the same may become due and payable
hereunder. Should that portion of such rents received from such reletting during
any month, which is applied to the payment of rent hereunder, be less than the
rent payable during that month by Tenant hereunder, then Tenant agrees to pay
such deficiency to Landlord immediately upon demand therefor by Landlord. Such
deficiency will be calculated and paid monthly.
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d. Landlord's Remedies; Performance for Tenant. All covenants and
-------------------------------------------
agreements to be performed by Tenant under any of the terms of this Lease are to
be performed by Tenant at Tenant's sole cost and expense and without any
abatement of rent. If Tenant fails to pay any sum of money owed to any party
other than Landlord, for which it is liable under this Lease, or if Tenant fails
to perform any other act on its part to be performed hereunder, and such failure
continues for ten (10) days after notice thereof by Landlord, Landlord may,
without waiving or releasing Tenant from its obligations, but shall not be
obligated to, make any such payment or perform any such other act to be made or
performed by Tenant. Tenant agrees to reimburse Landlord upon demand for all
sums so paid by Landlord and all necessary incidental costs, together with
interest thereon at the Interest Rate, from the date of such payment by Landlord
until reimbursed by Tenant. This remedy shall be in addition to any other right
or remedy of Landlord set forth in this Article M-2.
e. Cumulative. Each right and remedy of Landlord provided for in this
----------
Lease or now or hereafter existing at law, in equity, by statute or otherwise
shall be cumulative and shall not preclude Landlord from exercising any other
rights or remedies provided for in this Lease or now or hereafter existing at
law or equity, by statute or otherwise.
f. Indemnification. Nothing in this Article M affects the right of
---------------
Landlord to indemnification by Tenant in accordance with Article F-7 for
liability arising from personal injuries or property damage prior to the
termination of this Lease.
M-3. Inducement Recapture In Event Of Breach - Intentionally Deleted
---------------------------------------------------------------
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M-4. Landlord Default
----------------
Landlord shall not be in default hereunder unless Landlord fails to perform
the obligations required of Landlord within a reasonable time, but in no event
later that thirty (30) days after notice by Tenant to Landlord and to the holder
of any first mortgage or deed of trust covering the Premises, whose name and
address shall have theretofore been furnished to Tenant specifying wherein
Landlord has failed to perform such obligation; provided, however, that if the
nature of Landlord's obligation is such that more than thirty (30) days are
required for performance, then Landlord shall not be in default if Landlord
commences performance within such 30-day period and thereafter diligently
prosecutes the same to completion. Notwithstanding the foregoing, if Tenant
provides notice to Landlord of the need for repairs and/or maintenance which are
Landlord's obligations under the Lease and Landlord fails to commence to
undertake such action as required by the terms of this Lease within said thirty
(30) day period, then Tenant may proceed to take the required action upon
delivery of an additional five (5) day notice to Landlord (except with respect
to emergency repairs as provided below) specifying that Tenant is taking such
required action, and if such action was required under the terms of this Lease
to be taken by Landlord, then Landlord shall reimburse Tenant for Tenant's
reasonable costs and expenses in taking such action or Tenant may deduct the
incurred costs from the next installments of Rent until fully recouped. In the
event Tenant undertakes such repairs and/or maintenance, and such work will
affect the Project's or Premises' life safety systems or HVAC systems, Tenant
shall use only those contractors used by Landlord in the Project for work on
such systems except in the case of emergency repairs where such contractor is
not readily available in which instance Tenant may use contractors of its
choosing. If, however, by reason of an emergency repairs or replacements become
necessary and by the provisions of this Lease are the responsibility of
Landlord, then Tenant may make such repairs
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<PAGE>
which, in the reasonable opinion of Tenant, are necessary for the preservation
of the Premises or of the security, safety or health of Tenant or Tenant's
employees or customers; provided, however, that Tenant shall first use diligent
efforts to inform Landlord and obtain assistance in coordination with Landlord
before making such emergency repairs. In no event shall Tenant have the right to
terminate this Lease as a result of Landlord's default, and Tenant's remedies
shall be limited to monetary damages and/or specific performance. Nothing herein
contained shall be interpreted to mean that Tenant is excused from paying Rent
due hereunder as a result of any default by Landlord.
N. ASSIGNMENT AND SUBLETTING
N-1. Approval
--------
Tenant shall not assign, mortgage, pledge or otherwise transfer this Lease,
in whole or in part, nor sublet or permit occupancy by any party other than
Tenant of all or any part of the Premises, without the prior written consent of
Landlord in each instance; provided, however, that Tenant shall have the right
to assign or sublet this Lease to any parent, subsidiary or affiliated entity of
Tenant provided that such transfer does not result in material reduction in the
net worth of Tenant and is not made as a subterfuge by Tenant to avoid its
obligations under this Lease. Landlord may withhold Landlord's consent to any
assignment or subletting, provided the withholding is not unreasonable. Each
request for consent to an assignment or subletting shall be in writing,
accompanied by information relevant to Landlord's determination as to the
financial and operational responsibility and appropriateness of the proposed
assignee or sublessee. Factors which Landlord and Tenant agree may be a basis
for Landlord's reasonable refusal to consent to a proposed
43
<PAGE>
assignment or sublease include but are not limited to (i) the proposed
assignee's or sublessee's net worth, general business reputation or credit
history, particularly its history relative to its past lease obligations taking
into account however, Tenant's continuing liability hereunder, and (ii) the
increased wear and tear to the Premises, disturbance to neighboring occupants,
and any risk of Hazardous Materials contamination that may be incident to the
assignee's or sublessee's use relative to the use of Tenant. It shall also be
reasonable for Landlord to withhold consent on the basis that the proposed
assignee or sublessee has requested that this Lease be amended in connection
with the assignment or sublease. Tenant agrees to provide Landlord with such
other or additional information and/or documentation as may be reasonably
requested by Landlord.
This Lease may not be assigned by operation of law. Any purported
assignment or subletting contrary to the provisions hereof without Landlord's
prior written consent shall be void. The consent by Landlord to any assignment
or subletting shall not constitute a waiver of the necessity for such consent to
any subsequent assignment or subletting.
N-2. Landlord Option - Intentionally Deleted
---------------------------------------
N-3. Bonus Rental
------------
If Tenant receives rent or other consideration for any assignment or
sublease in excess of the Rent, or in case of the sublease of a portion of the
Premises, in excess of such Rent and costs of sublease that is fairly allocable
to such portion, as reasonably determined by Landlord, after appropriate
adjustments to assure that all other payments required hereunder are
appropriately taken into account, Tenant shall pay Landlord fifty percent (50%)
of the difference between each such payment of rent or other consideration and
the Rent required hereunder.
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N-4. Scope
-----
If (a) the underlying beneficial interest of Tenant is transferred or (b)
the Premises or any part thereof is sublet or occupied by anyone other than
Tenant, Landlord may collect rent from the assignee or occupant and apply the
net amount collected to the Kent herein reserved and apportion any excess rent
so collected in accordance with the terms of Article N-3; provided that no such
subletting, occupancy or collection shall be deemed a waiver of this covenant,
or the acceptance of the subtenant or occupant as tenant, or a release of Tenant
from the further performance by Tenant of covenants on the part of Tenant herein
contained. Regardless of Landlord's consent, any assignment or subletting shall
not (i) be effective without the express written assumption by such assignee or
sublessee of the obligations of Tenant under this Lease, (ii) release Tenant of
any obligations hereunder, except in the case of assignment where Tenant shall
be relieved of all obligations excepting liability for the payment of Rent, or
(iii) alter the primary liability of Tenant for the payment of Rent and other
sums due Landlord hereunder or for the performance of any other obligations to
be performed by Tenant under this Lease.
N-5. Release
-------
Whenever Landlord conveys any interest in the Premises, Landlord shall be
automatically released from further performance of the covenants of this Lease,
and from all further liabilities, obligations, costs, expenses, demands, causes
of action, claims and judgments connected with this Lease which accrue after
such conveyance. The effective date of Landlord's release shall be the date the
assignee executes an assumption of such assignment. If requested, Tenant shall
execute a reasonable form of release and such other documentation as may be
required to further effect the
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provisions of this Article N-5. This Lease and each of the Lease's covenants and
conditions shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, successors, assignees and legal
representatives, subject to the provisions hereof. Any successor or assignee of
Tenant who accepts an assignment of this Lease or enters into possession
hereunder shall thereby be bound by the covenants and conditions hereof. Nothing
herein contained shall be deemed to give a right of assignment to Tenant without
the prior written consent of Landlord except as provided in Article N-1.
N-6. Holding Over
------------
Tenant will not be permitted to hold over possession of the Premises after
the expiration or earlier termination of the Term without the express written
consent of Landlord, which consent Landlord may withhold in its sole and
absolute discretion. If Tenant holds over after the expiration or earlier
termination of the Term without such consent, Landlord may, at its option, treat
Tenant as a tenant at sufferance only, and such continued occupancy by Tenant
shall be subject to all of the terms, covenants and conditions of this Lease, so
far as applicable, except that the Fixed Rent for any such holdover period shall
be equal to one hundred twenty-five percent (125%) for the first six (6) months
of any such holdover, and therefore equal to one hundred fifty percent (150%) of
the Fixed Rent in effect under this Lease immediately prior to such holdover,
prorated on a daily basis. Acceptance by Landlord of rent after such expiration
or earlier termination will not result in a renewal of this Lease. If Tenant
fails to surrender the Premises upon the expiration of this Lease in accordance
with the terms of this Article despite demand to do so by Landlord, Tenant
agrees to promptly indemnify, protect, defend and hold Landlord harmless from
all claims, damages, judgments, suits, causes of action, losses, liabilities,
penalties, fines, expenses and costs (including
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<PAGE>
attorneys' fees and costs), including, without limitation, costs and expenses
incurred by Landlord in returning the Premises to the condition in which Tenant
was to surrender it and claims made by any succeeding tenant founded on or
resulting from Tenant's failure to surrender the Premises. The provisions of
this Article will survive the expiration or earlier termination of this Lease.
N-7. Waiver
------
Tenant agrees that Landlord may, at Landlord's option, proceed against
Tenant without having taken action against or joined such assignee or sublessee,
except that Tenant shall have the benefit of any indulgences, waivers and
extensions of time granted to any such assignee or sublessee.
O. ESTOPPEL CERTIFICATE, ATTORNMENT AND SUBORDINATION
O-1. Estoppel Certificate
--------------------
Within twenty (20)days following any written request which Landlord may
make from time to time, Tenant agrees to execute and deliver to Landlord a
statement, in a form similar to the form of Exhibit E as may reasonably be
required by Landlord's lender, certifying: (i) the date of commencement of this
Lease; (ii) the fact that this Lease is unmodified and in full force and effect
(or, if there have been modifications, that this Lease is in full force and
effect, and stating the date and nature of such modifications); (iii) the date
to which the Rent and other sums payable under this Lease have been paid; (iv)
that there are no current defaults under this Lease by either Landlord or Tenant
except as specified in Tenant's statement; and (v) such other matters reasonably
requested by
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<PAGE>
Landlord. Landlord and Tenant intend that any statement delivered pursuant to
this Article O-1 may be relied upon by any mortgagee, beneficiary, purchaser or
prospective purchaser of the Premises or any interest therein. Tenant's failure
to deliver such statement within such time will be conclusive upon Tenant (i)
that this Lease is in full force and effect, without modification except as may
be represented by Landlord, (ii) that there are no uncured defaults in
Landlord's performance, and (iii) that not more than one (1) month's rent has
been paid in advance. Without limiting the foregoing, if Tenant fails to deliver
any such statement within such ten (10) day period, Landlord may deliver to
Tenant an additional request for such statement and Tenant's failure to deliver
such statement to Landlord within ten (10) days after delivery of such
additional request will constitute a default under this Lease.
0-2. Subordination, Attornment; Non-Disturbance
------------------------------------------
Subject to Tenant's receipt of a fully executed Non-Disturbance Agreement
as provided below, this Lease and any option granted hereby shall be subject and
subordinate to any ground lease, mortgage, deed of trust, or other hypothecation
or security device (collectively, "Security Device"), now or hereafter placed by
Landlord upon the Property of which the Premises are a part, to any and all
advances made on the security thereof, and to all renewals, modifications,
consolidations, replacements and extensions thereof. Tenant agrees that the
lenders holding any such Security Device shall have no duty, liability or
obligation to perform any of the obligations of Landlord under this Lease, but
that in the event of Landlord's default with respect to any such obligation,
Tenant will give any lender whose name and address have been furnished Tenant in
writing for such purpose notice of Landlord's default and allow such lender
thirty (30) days following receipt of such notice for the cure of said default
before invoking any remedies Tenant
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<PAGE>
may have by reason thereof. If, in connection with Landlord's obtaining or
entering into any financing or ground lease affecting the Premises, the lender
or ground lessor requests modifications to this Lease, Tenant, within ten (10)
days after request therefor, agrees to execute an amendment to this Lease
incorporating such modifications, provided such modifications are reasonable and
do not increase the obligations of Tenant under this Lease or adversely affect
the leasehold estate created by this Lease. If any lender shall elect to have
this Lease and/or any option granted hereby superior to the lien of its Security
Device and shall give written notice thereof to Tenant, this Lease and such
options shall be deemed prior to such Security Device, notwithstanding the
relative dates of the documentation or recordation thereof. Subject to Tenant's
receipt of a fully executed Non-Disturbance Agreement as provided below, Tenant
agrees to attorn to a Lender or any other party who acquires ownership of the
Premises by reason of a foreclosure of a Security Device, and that in the event
of such foreclosure, such new owner shall not: (i) be liable for any act or
omission of any prior lessor or with respect to events occurring prior to
acquisition of ownership; (ii) be subject to any defenses which Tenant might
have against any prior lessor, or (iii) be bound by prepayment of more than one
(1) month's rent. Any lender which relies on the foregoing subordination shall
be deemed to have agreed that Tenant's possession and this Lease, including any
options to extend the term hereof, will not be disturbed so long as Tenant is
not in breach hereof and attorns to the record owner of the Premises. Although
the provisions of this Article 0-2 are effective without the execution of any
further documents, upon written request from Landlord or a lender, Tenant and
Landlord shall execute such further writings as may be reasonably required to
separately document any such subordination or non-subordination, attornment
and/or non-disturbance agreement as is provided for herein. Landlord shall
obtain from any such mortgagee or beneficiary a commercially reasonable non-
disturbance agreement executed by such mortgagee or beneficiary providing that,
as
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<PAGE>
long as Tenant is not in default hereunder, this Lease shall remain in effect
for the full Lease Term (a "Non-Disturbance Agreement") and Tenant's use,
occupancy and possession of the Premises shall not be disturbed or interfered
with. Notwithstanding the foregoing, the initial Non-Disturbance Agreement shall
be substantially in the form attached hereto as Exhibit F, Non-Disturbance
Agreement Form.
P. MISCELLANEOUS
P-1. Waiver
------
No waiver by either party of any default or breach of any covenant by the
other party hereunder shall be implied from any omission by the non-defaulting
party to take action on account of such default if such default persists or is
repeated, and no express waiver shall affect any default other than the default
specified in the waiver and then said waiver shall be operative only for the
time and to the extent therein stated. Waivers of any covenant, term or
condition contained herein by a party shall not be construed as a waiver of any
subsequent breach of the same covenant, term or condition. The consent or
approval by Landlord to any act of Tenant requiring further consent or approval
by Landlord shall not be deemed to waive or render unnecessary Landlord's
consent or approval to any subsequent similar acts. No waiver by a party of any
provision under this Lease shall be effective unless in writing and signed by
such party. Landlord's acceptance of full or partial payment of Rent during the
continuance of any breach of this Lease shall not constitute a waiver of any
such breach of this Lease. Efforts by Landlord to mitigate damages caused by
Tenant's breach of this Lease shall not be construed as a waiver of Landlord's
right to recover damages under Article M.
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P-2. Financial Statements
--------------------
In the event Landlord's lender reasonably requests in writing to review
financial information of Tenant not otherwise available in the public realm for
purposes of financing the Building and so designates the information sought and
specifies the reason(s) the information is sought and subject to Tenant's
consent thereto which consent Tenant may refuse based on its reasonable business
judgment or because Tenant is precluded from making such disclosures, Landlord's
lender shall be entitled to inspect, but not copy or otherwise reproduce, such
specifically designated financial information.
P-3. Accord and Satisfaction
-----------------------
No payment by Tenant of a lesser amount than the Rent nor any endorsement
on any check or letter accompanying any check or payment as Rent shall be deemed
an accord and satisfaction of full payment of Rent, and Landlord may accept such
payment without prejudice to Landlord's fight to recover the balance of such
Rent or to pursue other remedies.
P-4. Limitation of Landlord's Liability
----------------------------------
The obligations of Landlord under this Lease are not personal obligations
of the individual partners, directors, officers and shareholders of Landlord,
and Tenant shall look solely to the Property and the proceeds thereof, for
satisfaction of any liability and shall not look to other assets of Landlord nor
seek recourse against the assets of the individual partners, directors, officers
and shareholders of Landlord.
P-5. Entire Agreement
----------------
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This Lease and the exhibits and any side letter of even date herewith
attached hereto set forth all the covenants, agreements, conditions and
understandings between Landlord and Tenant concerning the Premises, and there
are no covenants, agreements, conditions or understandings, either oral or
written, between Landlord and Tenant other than as set forth herein. No
alteration, amendment, change or addition to this Lease shall be binding upon
Landlord and Tenant unless in writing and signed by both Landlord and Tenant.
P-6. Time
----
Time is of the essence of this Lease.
P-7. Professional Fees and Costs
---------------------------
If either Landlord or Tenant should initiate litigation or other
enforcement activity against the other with respect to this Lease, then all
costs and expenses of such activity, including without limitation, actual
professional fees and costs such as appraisers, accountants and reasonable
attorneys' fees and costs, incurred by the party which prevails in such action,
whether by final judgment or out of court settlement, shall be paid by the other
party, which obligation on the part of the other party shall be deemed to have
accrued on the date of the commencement of such action and shall be enforceable
whether or not the action is prosecuted to judgment. As used herein, attorneys'
fees and costs shall include, without limitation, reasonable attorneys' fees,
costs and expenses incurred in connection with any (i) post judgment motions;
(ii) contempt proceedings; (iii) garnishment, levy, and debtor and third party
examination; (iv) discovery; and (v) bankruptcy litigation.
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P-8. Captions and Article Letters
----------------------------
The captions, article letters and table of contents appearing in this Lease
are inserted as a matter of convenience and in no way define or limit the
provisions of this Lease.
P-9. Severability
------------
If any provision of this Lease or the application of any such provision,
shall be held by a court of competent jurisdiction to be invalid, void or
unenforceable to any extent, the remaining provisions of this Lease and the
application thereof shall remain in full force and effect and shall not be
affected, impaired or invalidated.
P-10. Applicable Law
--------------
This Lease shall be construed and enforced in accordance with Indiana law.
P-11. Examination of Lease
--------------------
Submission of this Lease to Tenant does not constitute an option to lease,
and this Lease is not effective otherwise until execution and delivery by both
Landlord and Tenant.
P-12. Notices
-------
All notices to be given hereunder shall be in writing and mailed postage
prepaid by certified or registered mail, return receipt requested, or delivered
by personal delivery, to Landlord's Address and Tenant's Address, or to such
other place as Landlord or Tenant may designate in a written notice given to the
other party. Notices shall be deemed served three (3) days after the date of
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mailing. Any notice by Tenant of Landlord's default shall be delivered
concurrently to Landlord's lender pursuant to any current Non-Disturbance
Agreement.
P-13. 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.
P-14. Brokers
-------
Each party represents and warrants to the other, that, to its knowledge, no
other broker, agent or finder (a) negotiated or was instrumental in negotiating
or consummating this Lease on its behalf, and (b) is or might be entitled to a
commission or compensation in connection with this Lease. Landlord and Tenant
each agree to promptly indemnify, protect, defend and hold harmless the other
from and against any and all claims, damages, judgments, suits, causes of
action, losses, liabilities, penalties, fines, expenses and costs (including
attorneys' fees and court costs) resulting from any breach by the indemnifying
party of the foregoing representation, including, without limitation, any claims
that may be asserted by any broker, agent or finder undisclosed by the
indemnifying party. The foregoing mutual indemnity shall survive the expiration
or earlier termination of this Lease.
P-15. Recording
---------
Neither Landlord nor Tenant shall record this Lease. However, at the
request of either Landlord or Tenant following the Commencement Date, Landlord
and Tenant shall enter into and
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record a short form memorandum of this Lease which requesting party may cause to
be recorded at the sole cost and expense of the party requesting such
recordation. Such memorandum shall be in a form reasonably acceptable to both
Landlord and Tenant but in any event, meeting the minimum requirements of the
recording statute.
P-16. Counterparts
------------
This Lease may be executed in one or more counterparts, each of which shall
constitute an original and all of which shall be one and the same agreement.
P-17. Guaranty - Intentionally Deleted
--------------------------------
P-18. Quiet Possession
----------------
Upon payment by Tenant of the Rent for the Premises and the observance and
performance of all of the covenants, conditions and provisions on Tenant's part
to be observed and performed under this Lease, Tenant shall have quiet
possession of the Premises for the entire term hereof subject to all of the
provisions of this Lease.
P-19. Joint and Several Liability
---------------------------
The obligations of the individuals currently comprising Landlord shall be
joint and several.
P-20. Authority.
----------
Landlord and Tenant covenant to the other that each has full right and
authority to make this Lease.
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P-21. Conditions Precedent.
This Lease and the Tenant's obligations under this Lease are
conditioned upon and expressly subject to: (I) Landlord acquiring good and
marketable title to the Real Estate no later than the date this Lease is
executed and (ii) completion and attachment to the Lease of (a) the site plan
to be attached as Exhibit A depicting the layout of the Building, the interior
of the Premises and the Building exterior and all parking areas and driveways,
all as satisfactory to Tenant, (b) completion and attachment to the Lease of
the floor plan of the Building satisfactory to Tenant as Exhibit C, (c)
completion and attachment to the Lease of the Landlord Work Letter as Exhibit D
to include those specifications which are satisfactory to Tenant, and (d)
attachment to the Lease of the Estoppel Certificate and the Subordination, Non-
Disturbance and Attornment Agreement, respectively as Exhibits E and F, in form
and content satisfactory to Tenant.
P. TENANT'S PURCHASE OPTION
Landlord hereby grants to Tenant and any assignee under Article N-1 of this
Lease, but not to any subtenant, the non-assignable right and option to purchase
the Premises from Landlord subject to and upon the following terms provisions,
and conditions:
(a) At any time within the first six (6) months of the fifth (5/th/) Lease
Year, Tenant may give to Landlord written notice (I) that Tenant desires to
purchase the Premises pursuant to the provisions hereof and (ii) of a closing
date (the "Closing"), which date shall not in any event be later than the last
business day of the fifth (5/th/) Lease Year upon such other terms and
conditions as are customary in commercial real estate purchase transactions of
this sort.
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(b) The purchase price for the Premises shall be the total facility cost
as that phrase is used and determined in connection with the computation of the
Fixed Rent pursuant to the provisions of Article D-1 times (x) one hundred
twenty-five percent (125%) payable in cash at the Closing in immediate available
funds. The parties agree to prepare and sign an addendum to this Lease setting
forth the exact amount of the total facility cost and the purchase price based
thereon once such amounts are determined.
(c) Upon Tenant's exercise of such option, Tenant shall, at the Closing
specified in (a) above, pay to Landlord in cash the purchase price of the
Premises.
(d) At the Closing Landlord will execute, have acknowledged and deliver to
Tenant a warranty deed and bill of sale conveying to Tenant marketable title to
the Premises free and clear of all liens and encumbrances other than (I) any
liens or encumbrances approved in writing by Tenant (ii) taxes for the year in
which the Closing is to occur and subsequent years, (iii) zoning ordinances and
utility easements which do not adversely affect the use of the Property, and
(iv) any discrepancies, conflicts or shortages in area or boundary lines, or any
encroachments, or overlapping of improvements which would be shown on a current
survey.
(e) Taxes for the then current year shall be prorated at the Closing
effective as of the Closing
If Tenant shall fail to consummate the purchase of the Premises upon due
exercise of the option herein contained by Tenant, Landlord may enforce specific
performance of this Article Q or may bring suit for damages against Tenant or
may exercise any other remedy provided elsewhere in the Lease or at law in
equity.
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The provisions of this Article Q shall apply and be binding on any
purchaser or transferee of Landlord's interest in the Premises or Building or
in this lease.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date and
year first above written.
"LANDLORD"
By:_______________________________________
John T. Phair, President
Holladay Partners Midwest, Inc.,
Its General Partner
"TENANT"
By_____________________
Name: Edmond L. Peters
----------------
Title: Sr. VP, Procurement & Business Dev.
-----------------------------------
58
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<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> 3-MOS 3-MOS
<FISCAL-YEAR-END> OCT-31-2000 OCT-31-1999
<PERIOD-START> NOV-01-1999 NOV-01-1998
<PERIOD-END> JAN-31-2000 JAN-31-1999
<CASH> 718 813
<SECURITIES> 0 0
<RECEIVABLES> 71,875 61,881
<ALLOWANCES> (350) (350)
<INVENTORY> 87,842 74,419
<CURRENT-ASSETS> 167,900 144,771
<PP&E> 109,119 101,346
<DEPRECIATION> 65,191 59,926
<TOTAL-ASSETS> 321,230 301,895
<CURRENT-LIABILITIES> 111,961 95,983
<BONDS> 67,871 74,316
0 0
5,000 5,000
<COMMON> 0 0
<OTHER-SE> (54,782) (42,201)
<TOTAL-LIABILITY-AND-EQUITY> 321,230 301,895
<SALES> 91,391 87,637
<TOTAL-REVENUES> 91,391 87,637
<CGS> 79,837 76,699
<TOTAL-COSTS> 90,993 87,308
<OTHER-EXPENSES> 0 0
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 4,134 2,943
<INCOME-PRETAX> (3,645) (2,614)
<INCOME-TAX> 0 (459)
<INCOME-CONTINUING> 0 0
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> (1,070) 0
<NET-INCOME> (4,715) (2,155)
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