NET COMMERCIAL LEASE CONTRACT
THIS LEASE, made this 30th day of January, 1996, by and between KNOXVILLE
INDUSTRIAL GROUP, LTD., A TENNESSEE LIMITED PARTNERSHIP (hereinafter called
"Landlord); BETHLEHEM ADVANCED MATERIALS CORPORATION, A PENNSYLVANIA CORPORATION
(hereinafter called "Tenant"); THE STANFIELD YORK COMPANY, (hereinafter called
"Agent"); and THE BETHLEHEM CORPORATION, A PENNSYLVANIA CORPORATION (hereinafter
called "Guarantor").
WITNESSETH:
1. PREMISES: The Landlord, for and in consideration of the rents, covenants and
stipulations hereinafter mentioned, provided for and contained, to be paid, dept
and performed by the Tenant, has leased and rented, and by these presents leases
and rents, unto the said Tenant, and said Tenant hereby leases and takes upon
the terms and conditions which hereinafter appear, the following described
property (hereinafter called "Premises), to wit:
A 33,600 square foot office/warehouse situated on approximately 2.36 acres and
being known as 10536 Lexington Drive, Knoxville, Tennessee 37932, and more
particularly shown on collective Exhibit "A" marked "Legal Description" and
"Plat".
No easement for light or air is included in the Premises. This Lease is
conditioned on and subject to the termination of the existing Net Commercial
Lease dated July 21, 1993, from Landlord to Third Millennium Technologies, Inc.,
as assigned on March 17, 1995, to AlliedSignal, Inc., Aircraft Landing Systems
("Prior Lease").
2. TERM: The Tenant shall have and hold the Premises for an initial term of
sixty (60) months beginning as of October 1, 1995, and ending on September 30,
2000, at midnight, unless sooner terminated as hereinafter provided. Tenant
shall further have two (2) option terms of three (3) years each. Said option
terms shall be upon the terms and conditions hereof, including the annual rent
increase hereafter specified. Tenant shall give Landlord written notice of the
exercise of any option term at least ninety (90) days prior to the expiration of
the then applicable term, with time being of the essence. "Term," as used
herein, shall refer to said initial term and, to the extent properly exercised,
any option terms.
3. RENTAL: Tenant agrees to pay Landlord, by payments to The Stanfield York
Company, Agent of Landlord, who negotiated this lease, at office of Agent in
Atlanta, Georgia, an annual rental of $99,809.52, payable in monthly payments of
$8,317.46, promptly on the first day of each month, in advance, without demand,
during the term of this lease. The parties acknowledge that the October,
November, and December, 1995, and January, 1996, rents have been paid prior to
the execution hereof; the first payment shall therefore be due and payable on
February 1, 1996. Said annual rent shall increase each year by three percent
(3%) over the prior year's rent hereunder. All other amounts and payments
required to be made by Tenant hereunder, whether to Landlord or a third party,
shall also be deemed rent due hereunder.
4. SECURITY DEPOSIT: Tenant agrees to deposit the sum of SEVEN THOUSAND EIGHT
HUNDRED FORTY AND No/100 DOLLARS ($7,840.00) with Landlord, which sum shall be
retained by Landlord as security for the payment by Tenant of the rents and
other expenses herein agreed to be paid by Tenant and for the faithful
performance by Tenant of Tenant's other obligations under this Lease. It is
agreed that Landlord, at Landlord's option, may at any time apply said sum or
only part thereof towards the payment of the rents and all other sums payable by
Tenant under this Lease, and towards the performance of each and every of
Tenant's obligations under this Lease, but such obligations and Tenant's
liability shall be
discharged only to that extent, and T Tenant shall remain liable for any amounts
that such sum shall be insufficient to pay; that Landlord may exhaust any and
all rights and remedies against Tenant bet`ore resorting to said sum, but
nothing herein contained shall be deemed to require Landlord so to do That, in
the event this deposit shall not be utilized for any such purposes, then such
deposit shall be returned by Landlord to Tenant within 30 days after the
expiration of the term of this Lease, or when Tenant vacates the Premises,
whichever shall later occur
5. AGENT'S COMMISSION: Agent has rendered Landlord a valuable service by
assisting in the creation of the Landlord-Tenant relationship hereunder For this
reason, Agent is made a party to this Lease and is given a special lien on the
interest of the Landlord in the Premises in order to enable Agent to enforce its
commission rights against the Premises The commission to be paid in conjunction
with the creation of the aforesaid Landlord-Tenant relationship by this Lease
has been negotiated between Landlord and Agent, and Landlord hereby agrees to
pay Agent, as compensation t`or Agent's services in procuring this L,case and
creating the aforesaid Landlord-Tenant relationship, as follows five percent
(5%) of rents as collected
If the Tenant becomes a tenant at will or at sufferance pursuant to Paragraph 26
hereof, or if the term of the Lease is extended or if this Lease is renewed or
if a new lease is entered into between Landlord and Tenant covering either the
Premises or any part thereof, or covering any other premises as an expansion of,
addition to, or substitution for the Premises, regardless of whether such
Premises are located adjacent to, or in the vicinity of, the Premises, Landlord,
in consideration of Agent's having assisted in the creation of the
Landlord-Tenant relationship, agrees to pay Agent Additional Commissions, as set
forth below; it being the intention of the parties that Agent shall continue to
be compensated so long as the parties hereto, their successors and/or assigns
continue the relationship of Landlord and Tenant which initially resulted from
the efforts of Agent, whether relative to the Premises or any expansion thereof,
or addition thereto or substitution therefore, or relative to any other premises
leased by Landlord to Tenant from time to time, whether the rental therefore is
paid under this Lease or otherwise five percent (5%) of rents collected
Landlord, with the consent of Tenant, hereby authorizes Agent to deduct its
commission from each rental payment it collects from Tenant.
Agent agrees that, in the event Landlord sells the Premises, and upon Landlord's
furnishing Agent with an agreement signed by Purchaser assuring Landlord's
obligations to Agent under this Lease, Agent will release original Landlord from
any further obligations to Agent hereunder. Tenant agrees that if this Lease is
assigned by him, he will secure from assignee an agreement in writing
recognizing the assignment of the commissions owed to Agent and agreeing to pay
rental to Agent during the continuation of the Landlord-Tenant relationship
between or among said assignee, its successors and/or assigns, and Landlord, its
successors and/or assigns, whether relative to the Premises or any expansion
thereof or substitution therefore, or relative to any other property leased by
Landlord to Tenant from time to time, whether rental therefore is paid under
this Lease or otherwise. In the event that the Premises are condemned, or sold
under threat of and in lieu of condemnation, Agent shall, on the dale of receipt
by Landlord of the condemnation award or sale proceeds, be paid Agent's
commission, reduced to its present cash value at the then existing legal rate of
interest, which would otherwise be due to the end of the term contracted for
under Paragraph 2 above. Nothing in this paragraph shall be deemed to create a
direct obligation from Tenant to Agent nor shall Tenant have any liability or
responsibility whatsoever to Agent for payment of commissions or otherwise,
other than to pay the monthly rent (to which Agent is entitled to a share
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or portion), with said rent to be paid pursuant to Paragraph 3 of this Lease
Agreement.
6. PURCHASE OF PROPERTY BY TENANT: In the event that Tenant acquires title to
the Premises or any part thereof, or any other premises as an expansion of,
addition to, or substitution for the Premises, at any time during the term of
this Lease or any extension or renewal thereof, or within six months after the
expiration of the term hereof or the extended term hereof, the Landlord shall
pay Agent a commission on the sale of the Premises in lieu of any further
commissions which otherwise would have been due under this l ease. Such
commission, as negotiated between parties, is to be six percent (6%) of the
purchase price. Nothing in this paragraph shall be deemed to create a direct
obligation from Tenant to Agent nor shall Tenant have any liability or
responsibility whatsoever to Agent for payment of commissions or otherwise,
other than to pay the monthly rent (to which Agent is entitled to a share or
portion), with said rent to be paid pursuant to Paragraph 3 of this Lease
Agreement.
7. UTILITY BILLS: Tenant shall pay all utility bills, including, but not limited
to, water, sewer, gas, electricity, fuel, light, and heat bills, for the
Premises, and Tenant shall pay all charges for garbage collection services or
other sanitary services rendered to the Premises or used by Tenant in connection
therewith. If Tenant fails to pay any of said utility bills or charges for
garbage collection or other sanitary services, Landlord may pay the same, and
such payment shall be added to and become part of the next rental payment due
under this Lease.
8. USE OF PREMISES: The Premises shall be used to design, manufacture,
demonstrate, and distribute high temperature industrial furnaces or other
products/services of Tenant purposes and no other. The Premises shall not be
used for any illegal purposes, nor in any manner to create any nuisance or
trespass, nor in any manner to vitiate the insurance or increase the rate of
insurance on Premises. Tenant further agrees that its use and occupancy of the
Premises will be in full conformity with all applicable federal, state and local
laws, regulations and ordinances. Tenant expressly covenants and agrees not to
manufacture, store, use, sell or dispose of any hazardous or toxic substances on
the Premises, into any septic tank, sanitary sewer, or storm drain which serves
the Premises, or into any swale or drainage ditch on or bordering the Premises,
except that materials (i) for which Tenant has all applicable and required
governmental permits and approvals and (ii) which are consistent with and
normally used in the business of Tenant described above, may be stored and used
on the Premises by Tenant in the ordinary course of its business; copies of such
permits and approvals shall be provided to Landlord prior to any storage or use
thereof. Tenant further expressly covenants that all of its activities will be
in strict conformity with all environmental laws. "Environmental laws" shall
mean any and all laws, statutes, ordinances, rules, regulations, orders, or
determinations of any governmental authority pertaining to health or the
environment in effect for the Premises, including, without limitation, the Clean
Air Act, the Comprehensive Environment Response Compensation and Liability Act
of 1980 ("CERCLA"), the Federal Water Pollution Control Act of 1970, the
Resource Conservation and Recovery Act of 1976 ("RCRA"), the Sat`e Drinking
Water Act, the Toxic Substances Control Act, and the Reauthorization Act of
1986, all as amended. Tenant agrees to indemnify and hold Landlord harmless from
any notice, claim, demand, or suit seeking remediation of any claimed
environmental damage, or seeking any form of damages or penalty, arising out of
or resulting from or in any way relating to Tenant's use of the Premises,
including the cost, expenses and attorney's tees which Landlord may incur in the
investigation and defense of any such claim. The Indemnity Agreement set forth
in this Paragraph shall survive the expiration, termination, or cancellation of
this Lease. Tenant expressly waives any statute of limitations which might
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otherwise be applicable to any claim for indemnification arising under this
Paragraph.
9. ABANDONMENT OF THE PREMISES: Tenant agrees not to abandon or vacate the
Premises during the period of this Lease and agrees to use the Premises for the
purposes herein leased until the expiration hereof.
10. LANDLORD'S RESPONSIBILITY FOR MAINTENANCE AND REPAIRS: Tenant acknowledges
that Landlord replaced the roof to the building portion of the Premises. It
shall be Landlord's responsibility to maintain the exterior roof, the structural
integrity of the exterior walls, and the structural foundation of said building,
except that any maintenance or corrective work caused by any modification or
alteration performed by Tenant shall be Tenant's responsibility. Landlord agrees
pursuant to the Americans with Disabilities Act of 1990 ("ADA") to eliminate on
an as needed basis architectural and communications barriers that are structural
in nature in the said building where such removal is readily achievable.
Landlord further agrees at its expense to perform any structural work to the
roof, exterior walls and/or foundation that is required by any federal, state or
local governmental agency or authority and which does not result from the
actions of the tenants under the Prior Lease or the actions of Tenant or
Tenants' business and the conduct thereof. Landlord shall not be liable for any
damages or loss resulting from any failure to comply with the provisions of this
paragraph until after written notice to Landlord of any breach hereof and a
reasonable period of time for Landlord to cure any such breach.
11. TENANT'S RESPONSIBILITIES FOR REPAIR, ALTERATION, AND MAINTENANCE: The
parties acknowledge that Tenant's predecessor made certain alterations to the
Premises, including the construction of a high temperature industrial electric
furnace on the Premises, which required elevating the roof above one bay some 20
feet above the existing roof of the building, and removing a portion of the
flooring in the building and constructed a basement or pit for the furnace.
Tenant agrees to obtain all permits and to fully comply with all federal, state,
and local governmental requirements relating to the operation and use of the
Premises, including OSHA regulations, and all applicable environmental laws and
regulations. Tenant accepts responsibility for complying with ADA standards
applicable as a result of any government funds used by Tenant, or as a result of
any sales made by Tenant to the government (whether directly or indirectly), or
as a result of Tenant or Sub-Tenant using the Premises, or any part subject to
ADA or in a manner which causes it to be deemed thereof, in a manner which
causes it to be deemed a public accommodation within the meaning of ADA. Tenant
will make no alterations, additions or improvements in or to the Premises
without the written consent of Landlord. At the expiration of the term of this
Lease, and any extension thereto, or Upon the termination of this Lease, Tenant
agrees to remove the high temperature industrial furnace and restore the
Premises to their condition as of July, 1993, including the removal of the pit,
and the restoration of the roof, floor, walls, ceiling, fixtures, and utilities.
Tenant shall have no authority, express or implied, to create or place any lien
or encumbrance of any kind or nature whatsoever upon the Premises, or to bind in
any manner, the interest of Landlord in the Premises and the Tenant covenants
and agrees that it will pay or cause to be paid all sums legally due and payable
by it on account of any labor performed or materials furnished in connection
with any work performed on the Premises for which any lien is or can be validly
and legally asserted, and that it will save and hold Landlord harmless from any
and all loss, cost or expense, including attorney's fees and court costs, based
upon or arising out of asserted claims or liens against the rights, title and
interest of the Landlord in the Premises or under the terms of this Lease.
Tenant further agrees to bond or pay every such lien asserted against the
Premises, or Landlord's interest therein, within 30
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days of the date said lien attaches to the premises and/or Landlord's property.
Within sixty (60) days of the date hereof, Tenant agrees to paint the exterior
of the building, replace the carpet in the interior office space with new
carpet, tile or linoleum, and pump the septic tank which serves the building.
The color, design, and quality of the materials to be approved by Landlord.
Tenant agrees to maintain the HVAC system and all other systems and portions of
the building including windows, screens, awnings, doors, walls, pipes, plumbing,
electrical wiring and systems, fixtures, appurtenances, and grounds around the
building including the grass, shrubs and landscaping. All glass, both interior
and exterior, is at the sole risk of Tenant and Tenant agrees to replace, at
Tenant's own expense, any glass broken during the teem of this Lease. Provided,
however, that Tenant shall not be obligated to bond or to pay any lien asserted
against it, unless said lien constitutes a cloud on the title to and/or
encumbrance against the Premises. Any general lien against tenant, whether
consensual or otherwise, shall not constitute a violation of this Paragraph 11,
and Tenant shall be free to place liens, or permit liens to be placed, against
its personal property, furnaces, machinery, equipment and other personal
property located at the Premises, and Tenant shall not, in connection with any
such liens, be required to bond off any such lien or satisfy it, as Tenant would
otherwise be required under Paragraph 11 in connection with any lien or
encumbrance created by Tenant against the Premises.
12. PROPERTY TAXES: Tenant shall pay upon demand as additional rental during the
term of this Lease or any extension or renewal thereof, all taxes (including,
but not limited to, ad valorem taxes, special assessments and any other
governmental charges) on the Premises for each tax year. In the event the
Premises are less than the entire property assessed for such taxes for any such
tax year, then the tax for any such year applicable to the Premises shall be
determined by proration on an equitable basis according to the ratio the value
the leased property and improvements bears to the total value of the assessed
tax parcel or parcels of which the Premises are a part. If the final year of the
lease term fails to coincide with the tax year, then any taxes for the tax year
during which the term ends shall be reduced by the prorata part of such tax year
beyond the lease term. If such taxes for the year in which the Lease terminates
are not ascertainable before payment of the last month's rental, then the amount
of such taxes assessed against the property for the previous tax year shall be
used as a basis of determining the prorata share to be paid by Tenant for that
portion of the last lease year. Tenant's portion of taxes, as provided herein,
shall be payable within fifteen (15) days after receipt of notice from Landlord
or Agent as to the amount due, plus copies of the pertinent tax bills. The
Agent's commission shall not apply to any such additional rental resulting from
the provisions of this Paragraph unless billing and collection thereof is
handled by Agent at the request of the Landlord.
13. PROPERTY INSURANCE: Tenant covenants and agrees that it will at all times
during the term of this Lease and at its own cost and expense keep, or cause to
be kept, the Premises insured by good and responsible insurance companies, which
companies shall be acceptable to Landlord and to the holder to any mortgage or
deed of trust affecting the Premises to which Landlord is a party, for
protection against damage or destruction by fire and other perils embraced
within the term "extended coverage" in an amount not less than the full
insurable value for the improvements, but in no event less than Seven Hundred
Fifty Thousand and No/100 Dollars ($750,000.00) with replacement cost
endorsement. The Tenant will promptly pay or cause to be paid the premiums on
all such insurance on or before the due date thereof; and Tenant shall provide
Landlord with paid receipts or such other proof of payment as Tenant shall
require. Certificates representing all policies and renewals and replacements
thereof shall be deposited with and held by Landlord. Each such policy shall
name Landlord, Landlord's mortgagee, or Landlord's agent, if any, as an
additional insured
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party as their respective interests may appear, and shall contain an agreement
by the issuer thereof providing that such policy shall not be modified, amended
or canceled without at least thirty (30) days prior written notice to Landlord.
Said policy of insurance may be in the form of general coverage or floater
policy covering these and other premises provided that Landlord or Landlord's
mortgagee, if any, is therein specifically covered. Landlord shall not be liable
for any damage to fixtures or merchandise of Tenant caused by fire or other
insurable hazards, and Tenant does hereby expressly release Landlord of and from
all liability for such damages unless caused by Landlord's negligence or willful
conduct. In the event Tenant fails to maintain the insurance in full force and
effect, Landlord, at its option, may obtain insurance coverage in which event
Tenant agrees to promptly reimburse the cost of said coverage as additional
rent.
14. DESTRUCTION OF OR DAMAGE TO PREMISES: If the Premises are totally destroyed
by storm, fire, lightning, earthquake or other casualty, this Lease shall
terminate as of the date of such destruction, and rental shall, unless the loss
is caused by Tenant, terminate as of that date. If the Premises are damaged but
not wholly destroyed by any such casualties, rent shall abate in such proportion
as use of the Premises has been destroyed, and, provided sufficient insurance
proceeds are available, Landlord shall restore the Premises to substantially the
same condition as before damage as speedily as is practicable, whereupon full
rental shall recommence, provided, however, that within thirty (30) days of the
occurrence of any such casualty, Landlord shall provide Tenant with written
notification of its intent to either restore the Premises, or to not do so (due
to insufficiency of insurance proceeds) whereupon Tenant shall have the right,
to be exercised at its option and discretion, to terminate the Lease on written
notice to the Landlord.
15. INDEMNITY: Tenant agrees to indemnify and hold Landlord and Landlord's agent
harmless from all claims for damages to persons or property (including claims
for wrongful death, and including claims by Tenant's employees and invitees) by
reason of Tenant's use or occupancy of the Premises and all expenses incurred by
Landlord arising out of or resulting therefrom, including attorney's fees and
court costs. Supplementing the foregoing and in addition thereto, Tenant shall,
during the term of this Lease and any extension or renewal thereof, and at
Tenant's expense, maintain in full force and effect comprehensive general
liability insurance with limits of $1,000,000.00 per person and $2,000,000.00
per accident, and property damage limits of $500,000.00 which insurance policy
shall name Landlord and agent as additional insureds under the policy, and shall
contain a clause expressly waiving any right of the insurer to subrogate against
Landlord. Prior to the commencement of the term of this Lease, and at each
insurance policy anniversary, Tenant agrees to furnish Landlord with a
certificate of insurance which shall show the waiver of subrogation and the
endorsement required hereby. Such certificate shall provide that Landlord will
be given thirty (30) days written notice prior to cancellation or expiration of
the insurance evidenced thereby. In the event Tenant fails to maintain the
insurance in full force and effect, Landlord, at its option, may obtain
insurance coverage in which event Tenant agrees to promptly reimburse the cost
of said coverage as additional rent.
Landlord shall indemnify and hold Tenant harmless from any claims for damage to
person or property resulting from Landlord's negligent or willful misconduct in
connection with the Premises. Landlord shall carry liability insurance with
regard to the Premises and shall provide certificates thereof t`rom the
insurance company to Tenant upon the execution hereof and upon each renewal
thereof; such certificates shall reflect waiver of subrogation and provide for
thirty (30) days written notice prior to cancellation.
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16. CONDEMNATION: If the whole of the Premises, or such portion thereof as will
make the Premises unusable for the purposes herein leased, be condemned by any
legally constituted authority for any public use or purpose, then in either of
said events, the term hereby granted shall cease from the date when possession
thereof is taken by public authorities, and rental shall terminate as of said
date. Otherwise, in the event of such condemnation, rent hereunder shall abate
in such proportion as the use of the Premises has been destroyed. Such
termination, however, shall be without prejudice to the rights of either
Landlord or Tenant to recover compensation and damage caused by condemnation
from the condemner. It is further understood and agreed that neither the Tenant
nor Landlord shall have any rights in any award made to the other by any
condemnation authority notwithstanding the termination of the Lease as herein
provided. Landlord agrees to pay to Agent, from the award made to Landlord under
condemnation, the balance of lease commissions, reduced to then present cash
value, as provided in Paragraph 5 hereof, and Agent may become a party to the
condemnation proceeding for the purpose of enforcing its rights under this
Paragraph. In the event eminent domain or condemnation proceedings take place as
a result of which all of the Premises is taken by public body or authority, or
such that Tenant can no longer utilize the Premises to reasonably conduct its
business activities, then Tenant shall have the right to terminate the Lease on
ninety (90) days' prior written notice to Landlord, so Tenant can vacate the
Premises and move to another location without substantially disrupting its
business. Provided further, Tenant's obligation to pay Rent shall only continue
up until the point in time when the Lease terminates pursuant to this written
notification, and not up until the point in time when the condemning public
authority/agency actually takes possession of the Premises.
17. ASSIGNMENT AND SUBLETTING: Tenant may sublease portions of the Premises to
others provided such sublessee's operation is a part of the general operation of
Tenant and is under the supervision and control of Tenant, and provided such
operation is within the purposes under Paragraph 8 hereof. Except as provided in
the preceding sentence, Tenant shall not, without the prior written consent of
Landlord endorsed hereon, assign this Lease or any interest hereunder, or sublet
the Premises or any part thereof, or permit the use of the Premises by any party
other than Tenant. Said consent shall not be unreasonably withheld. Consent to
any assignment or sublease shall not impair this provision, and all later
assignments or subleases shall be made likewise only on the prior written
consent to Landlord. Assignee of Tenant, at option of Landlord, shall become
directly liable to Landlord for all obligations of Tenant hereunder, but no
sublease or assignment by Tenant shall relieve Tenant of any liability
hereunder.
18. REMOVAL OF FIXTURES: Tenant may, prior to the expiration of this Lease or
any extension or renewal thereof; remove all fixtures and equipment which he has
placed in the Premises, provided Tenant is not in default hereunder and provided
Tenant repairs all damage to the Premises caused by such removal.
19. EVENTS OF DEFAULT: The happening of any one or more of the following events
(hereinafter any one of which may be referred to as an "Event of Default")
during the term of this Lease or any extension or renewal thereof, shall
constitute a breach of this Lease on the part of the Tenant: (a) Tenant fails to
pay the rent as provided for herein; (b) Tenant abandons or vacates the
Premises; (c) Tenant fails to comply with or abide by and perform any other
obligation imposed upon Tenant under this Lease; (d) Tenant is adjudicated
bankrupt; (e) a permanent receiver is appointed for Tenant's property and such
receiver is not removed within sixty (60) days after written notice from
Landlord to Tenant to obtain such removal; (f) Tenant, either voluntarily or
involuntarily, takes advantage of any debtor relief proceedings under any
present or future law, whereby the rent or any part
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thereof is, or is proposed to be, reduced or payment thereof deferred; (g)
Tenant makes an assignment for benefit of creditors; or (h) Tenant's effects are
levied upon or attached under process against Tenant, which is not satisfied or
dissolved within thirty (30) days after written notice from Landlord to Tenant
to obtain satisfaction thereof.
20. REMEDIES UPON DEFAULT: Upon the occurrence of any Event of Default, Landlord
may pursue any one or more of the following remedies, separately or
concurrently, with any notice (except as specifically provided hereinafter) and
without prejudice to any other remedy herein provided or provided by law;
(a) If the Event of Default involves nonpayment of rental, and Tenant fails to
cure such default within ten (10) days after receipt of written notice thereof
from Landlord, or (b) if the Event of Default involves a default in performing
any of the terms or provisions of the Lease other than the payment of rental,
and Tenant fails to cure such default within thirty (30) days after the receipt
of written notice thereof from Landlord, or (c) if the Event of Default involves
any matter other than those set forth in items (a) and (b) of this Paragraph 20,
and Tenant fails to cure such default within thirty (30) days after the receipt
of written notice thereof from Landlord, the upon the happening of (a), (b), or
(c) the Landlord may immediately terminate this Lease by giving written notice
to Tenant, and upon such termination, shall be entitled to recover from the
Tenant damages in an amount equal to all rental which is then due and which
would otherwise have become due throughout the remaining term of this Lease, or
any renewal or extension thereof (as if this Lease had not been terminated); or
(d) Upon any Event of Default, Landlord may give to Tenant written notice of
such default and advise Tenant that unless such default is cured within thirty
(30) days after receipt of such notice, the entire amount of the rental for the
reminder of the term of this Lease, or any renewal or extension thereof, shall
immediately become due and payable upon the expiration of the thirty (30) day
period, and thereafter, unless such default is cured within said thirty (30) day
period, the entire amount of said rental shall thereupon become immediately due
and payable without further notice to Tenant; or (e) Upon any Event of Default,
Landlord, as Tenant's agent, without terminating this Lease may enter upon and
rent the Premises, in whole or in part at the best price obtainable by
reasonable effort, without advertisement and by private negotiations and for any
term Landlord deems proper, with Tenant being liable to Landlord for the
deficiency, if any, between tenant's rent hereunder and the price obtained by
Landlord on reletting; provided, however, that Landlord shall not be considered
to be under any duty by reason of this provision to take any action to mitigate
damages by reason of Tenant's default.
21. EXTERIOR SIGNS: Tenant shall place no Signs upon the outside walls or roof
of the Premises except with the written consent of the Landlord. Said consent
shall not be unreasonably withheld. Any and all signs placed on the Premises by
Tenant shall be maintained in compliance with rules and regulations governing
such Signs, and the Tenant shall be responsible to Landlord for any damage
caused by installation, use, or maintenance of said signs. Tenant, Upon the
expiration of this l,ease or any extension or renewal thereof, shall remove said
signs and agrees upon removal of said signs to repair all damage incident to
such removal.
22. ENTRY FOR CARDING, ETC.: Landlord may card the Premises "For Rent" or "For
Sale" ninety (90) days before the termination of this lease. Landlord may enter
the Premises at reasonable hours to exhibit same to prospective purchasers or
tenants and to make repairs to Landlord's adjoining property, if any.
23. EFFECT OF TERMINATION OF LEASE: No termination of this Lease prior to the
normal ending thereof, by lapse of time or otherwise,
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shall affect Landlord's right to collect rent for the period prior to
termination thereof.
24. MORTGAGEE'S RIGHTS: Tenant's rights shall be subject to any bona fide
mortgage or deed to secure debt which is now, or may hereafter be, placed upon
the Premises by Landlord. Tenant shall, if requested by Landlord, execute a
separate agreement reflecting such subordination and shall execute, upon
request, estoppel certificates in form reasonably satisfactory to such
mortgages. Landlord shall use its best efforts, upon request by Tenant, to
obtain a nondisturbance and attornment agreement between Tenant and any such
mortgagee in form reasonably satisfactory to Tenant. Landlord has undertaken
efforts to attempt to obtain such a subordination/attornment agreement and will
continue those efforts with due diligence.
25. NO ESTATE IN LAND: This Lease shall create the relationship of Landlord and
Tenant between the parties hereto; no estate shall pass out of Landlord. Tenant
has only a usufruct, not subject to levy and sale, and not assignable by Tenant
except by Landlord's consent.
26. HOLDING OVER: If Tenant remains in possession of the Premises after
expiration of the term hereof, with Landlord's acquiescence and without any
express agreement of parties, Tenant shall be a tenant at will at the rental
rate which is in effect at the end of the Lease; and there shall be no renewal
of the Lease by operation of law. If Tenant remains in possession of the
Premises after expiration of the term hereof without Landlord's acquiescence,
then Tenant shall be a tenant at sufferance and commencing on the date following
the date of such expiration, for each month or fraction thereof during which
Tenant so remains in possession, the monthly rental payable shall be twice the
monthly rental otherwise payable under Paragraph 3 hereof.
27. ATTORNEY'S FEES: If an Event of Default occurs under this Lease Agreement,
and it is not remedied within any of the applicable cure periods, Tenant and
Guarantor agree to pay any reasonable attorneys' fees incurred by Landlord in
connection with any such uncured default.
28. RIGHTS CUMULATIVE: All rights, powers and privileges conferred hereunder
upon parties hereto shall be cumulative and not restrictive of those given by
law.
29. SERVICE OF NOTICE: All notices required to be given to Landlord hereunder
shall, until contrary instructions are given to the other parties in writing, be
effectively given to Landlord if mailed, by registered or certified mail, return
receipt requested, or delivered or forwarded by nationally recognized overnight
courier service, to Landlord at the following address:
KNOXVILLE INDUSTRIAL GROUP, LTD.
C/O THE STANFIELD YORK COMPANY
5784 LAKE FORREST DRIVE, NW
SUITE 195
ATLANTA, GEORGIA 30328
All notices required to be given to Tenant hereunder shall, until contrary
instructions are given to the other parties in writing, be effectively given to
Tenant if mailed, by registered or certified mail, return receipt requested, or
delivered or forwarded by nationally recognized overnight courier service, to
Tenant at the following address:
BETHLEHEM ADVANCED MATERIALS CORPORATION
25TH AND LENNOX STREETS
EASTON, PENNSYLVANIA 18085
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All notices required to be given to Agent hereunder shall until contrary
instructions are given to the other parties in writing, be effectively given to
Agent if mailed, by registered or certified mail, return receipt requested, or
delivered or forwarded by nationally recognized overnight courier service, to
Agent at the following address:
THE STANFIELD YORK COMPANY
5784 LAKE FORREST DRIVE, NW
SUITE 195
ATLANTA, GEORGIA 30328
All notices required to be given to Guarantor hereunder shall, until contrary
instructions are given to the other parties in writing, be effectively given to
Guarantor if mailed by registered or certified mail, return receipt requested,
or delivered or forwarded by nationally recognized overnight courier service to
Guarantor to the following address:
THE BETHLEHEM CORPORATION
25TH AND LENNOX STREETS
EASTON, PENNSYLVANIA 18085
In the event of any notice hereunder to Landlord or Guarantor, copies thereof
shall also be given to the following:
KEVIN T. FOGERTY, ATTORNEY
1620 RED POND ROAD, SUITE 102
ALLENTOWN, PA 18104
30. WAIVER OF RIGHTS: No failure of Landlord to exercise any power given
Landlord hereunder, or to insist upon strict compliance by Tenant of his
obligations hereunder, and no custom or practice of the parties at variance with
the terms hereof shall constitute a waiver of Landlord's right to demand exact
compliance with the terms hereof.
31. TIME OF ESSENCE: Time is of the essence of this Lease.
32. DEFINITIONS: "Landlord", as used in this Lease, shall include first party,
his heirs, representatives, assigns and successors in title to the Premises.
"Tenant" shall include second party, his heirs and representatives, and if this
Lease shall be validly assigned or sublet, shall include also Tenant's assignees
or sublessees, as to the Premises covered by such assignment or sublease.
"Agent" shall include third party, his successors, assigns, heirs and
representatives. "Landlord", "Tenant", and "Agent" include male and female,
singular and plural, corporation, partnership or individual, as may fit the
particular parties.
33. LATE RENTAL PAYMENTS: Any rental payments received after the 10th day of
each month will accrue a five percent (5%) late charge. Said late fee will be
divided equally between Landlord and Agent.
34. QUIET POSSESSION: Landlord covenants that Tenant, upon performing and
observing the covenants to be observed and performed by Tenant under this lease,
shall peaceably hold, occupy and enjoy the Premises during the term of this
lease without interference by Landlord or by any other person claiming by,
through and under Landlord.
35. WAIVER OF LANDLORD'S LIEN: Landlord hereby waives its landlord's lien
against any of the personal property of Tenant located on the Premises.
Furthermore, Landlord agrees to promptly execute any such waiver of lien in a
form attached hereto as Exhibit A as reasonably requested by any of Tenant's
lenders or financiers.
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36. WAIVER OF SUBROGATION: Landlord and Tenant hereby release the other from any
and all liability or responsibility to the other or anyone claiming through or
under them by way of subrogation or otherwise for any loss or damage to property
caused by fire or any extended coverage or supplementary contract casualties,
even if such fire or other casualties shall have been caused by default or
negligence of the other party, or anyone for whom such party may be responsible,
provided, however, that this release shall be applicable and enforced and effect
only with respect to loss or damage fully covered by insurance and occurring
during such time as the releasor's insurance policy shall contain a clause or
endorsement to the effect that any such release shall not adversely affect or
impair said policies or prejudice the right of the releasor to recovery
thereunder.
37. CONDITION ON PREMISES: Landlord accepts this lease of the Premises and the
Premises as is and further agrees that, in executing this lease, Tenant is
governed by its own inspection of the Premises and its own judgment of their
desirability for its purposes, and has not been governed or influenced by any
representation of Landlord as to the condition or character of the Premises.
38. APPLICABLE LAW: This lease and the provisions hereof shall be governed by
Tennessee law.
39. ENTIRE AGREEMENT: This Lease contains the entire agreement of the parties
hereto and no representations, inducements, promises or agreements, oral or
otherwise, between the parties, not embodied herein, shall be of any force or
effect.
40. GUARANTY: Guarantor hereby guarantees the payment of all amounts due to be
paid by Tenant hereunder and the performance of all obligations to be performed
by Tenant hereunder provided, however, that in the event both of the hereafter
specified conditions are then satisfied, said guaranty and all requirements and
agreements of Guarantor herein shall cease and terminate thirty-six (36) months
from the date hereof ("Termination Date"). Otherwise, said guaranty shall remain
in effect. Said conditions are as follows:
(a) All payments due from or by Tenant hereunder prior to the Termination Date
have been made on a timely basis on or before the same become delinquent; and
(b) No uncured Event of Default, as to which Landlord has provided Tenant with
written notice, is existing at the conclusion of the third year of the initial
five-year term.
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IN WITNESS WHEREOF, the parties herein have hereunto set their hands and
seals, in triplicate, the date and year first above written.
LANDLORD: KNOXVILLE INDUSTRIAL
GROUP, LTD.
WITNESS:
/s/ /s/
- ------------------------------------ By:-------------------------
General Partner
TENANT: BETHLEHEM ADVANCED
MATERIALS CORPORATION
WITNESS:
/s/ /s/
- ------------------------------------ By:------------------------------
Printed Name:--------------------
Title:---------------------------
AGENT: THE STANFIELD YORK
COMPANY
WITNESS:
/s/ /s/
- ------------------------------------ By:------------------------------
Printed Name:--------------------
Title:---------------------------
GUARANTOR: THE BETHLEHEM
CORPORATION
WITNESS:
/s/ /s/
- ------------------------------------ By:------------------------------
Printed Name:--------------------
Title:---------------------------
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