EXHIBIT 10.27
FIRST LEASE AMENDMENT
---------------------
THIS FIRST LEASE AMENDMENT (the "Amendment") is executed this 31st day
----
of JULY, 1996, by and between DUKE REALTY LIMITED PARTNERSHIP, an Indiana
----
limited partnership ("Landlord"), and PRESTOLITE ELECTRIC INCORPORATED, a
Delaware corporation ("Tenant").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Landlord and Tenant entered into a certain Lease dated June 28,
1996 (the "Lease"), whereby Tenant leased from Landlord certain premises
consisting of approximately 85,000 square feet of space (the "Original
Premises") located at 0000 Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000; and
WHEREAS, Landlord and Tenant desire to expand the Original premises by
5,365 square feet (the "Additional Space"). Collectively, the Original Premises
and Additional Space shall hereinafter be referred to as the "Leased Premises";
and
WHEREAS, Landlord and Tenant desire to amend certain provisions of the
Lease to reflect such expansion;
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants herein contained and each act performed hereunder by the parties,
Landlord and Tenant hereby enter into this Amendment.
1. Amendment of Paragraph 1.
------------------------
Paragraph 1 of the Lease is hereby amended as follows:
B. Rentable Area: approximately 90,365 square feet;
C. Building Expense Percentage: 60.9%;
D. Minimum Annual Rent:
Years 1-5 $296,595.00 per year;
E. Monthly Rental installments:
Months 1-60 $24,716.25 per month;
2. Amendment of paragraph 2
------------------------
Paragraph 2 of the Lease is hereby amended by substituting Amended
-------
Exhibit A, attached hereto and incorporated herein by reference, on which the
---------
original Premises are striped and the Additional Space is cross-hatched, in lieu
of Exhibit A attached to the Lease.
---------
3. Tenant's Representations and Warranties. The undersigned represents
---------------------------------------
and warrants to Landlord that (i) Tenant is duly organized, validly existing and
in good standing in accordance with the laws of the state under which it was
organized; (ii) all action necessary to authorize the execution of this
Amendment has been taken by Tenant; and (iii) the individual executing and
delivering this Amendment on behalf of Tenant has been authorized to do so, and
such execution and delivery shall bind Tenant. Tenant, at Landlord's request,
shall provide Landlord with evidence of such authority.
4. Examination of Amendment. Submission of this instrument for
------------------------
examination or signature to Tenant does not constitute a reservation or option,
and it is not effective until execution by and delivery to both Landlord and
Tenant.
5. Definitions. Except as otherwise provided herein, the capitalized
-----------
terms used in this Amendment shall have the definitions set forth in the Lease.
6. Incorporation. This Amendment shall be incorporated into and made a
-------------
part of the Lease, and all provisions of the Lease not expressly modified or
amended hereby shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed on the day and year first written above.
LANDLORD:
WITNESSES: DUKE REALTY LIMITED PARTNERSHIP,
an Indiana limited partnership
/s/ Xxx Xxxxxxx
__________________________ By: Duke Realty Investments, Inc.,
XXX XXXXXXX Its general partner
__________________________
(Printed) /S/ Xxxxxxx X. Xxxxxxx
By: _______________________
/s/ Xxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxx
__________________________ Vice President
XXXXXX X. XXXXXXX Cincinnati Group
__________________________
(Printed)
TENANT:
WITNESSES: PRESTOLITE ELECTRIC INCORPORATED,
a Delaware corporation
/s/ Xxxxxxx X. York
__________________________ /s/ Xxxxxx X. Xxxxxxx
XXXXXXX X. YORK By: _________________________
__________________________
(Printed) XXXXXX X. XXXXXXX
Printed: _____________________
/s/ Xxxxxxx X. Xxxxxxx
__________________________ DIV. PRESIDENT
XXXXXXX X. XXXXXXX Title: ______________________
__________________________
(Printed)
WITNESSES: /s/ X. Xxxxxxxxx
By: _________________________
/s/ Xxxx X. Xxxxx
__________________________ X. XXXXXXXXX
XXXX X. XXXXX Printed: _____________________
__________________________
(Printed) Vice President
Title: ______________________
/S/ Xxxxx X. Xxxxxx
__________________________
XXXXX X. XXXXXX
__________________________
(Printed)
-2-
STATE OF OHIO )
) SS:
COUNTY OF XXXXXXXX )
Before me, a Notary Public in and for said County and State, personally
appeared Xxxxxxx X. Xxxxxxx, by me known and by me known to be the Vice
President, Cincinnati Group of Duke Realty Investments, Inc., an Indiana
corporation, the general partner of Duke Realty Limited partnership, an Indiana
limited partnership, who acknowledged the execution of the foregoing "First
Lease Amendment" on behalf of said partnership.
WITNESS my hand and Notarial Seal this 31 day of July, 1996.
-- ----
[NOTARIAL SEAL APPEARS HERE] /s/ Xxxxxx X. Xxxxxxx
____________________________
Notary Public
XXXXXX X. XXXXXXX
____________________________
(Printed Signature)
My Commission Expires: 10/31/00
--------------
My County of Residence: Xxxxxxxx
-------------
STATE OF MICHIGAN )
) SS:
COUNTY OF MONROE )
Before me, a Notary Public in and for said County and State, personally
appeared Xxxxxxx X. Xxxxxxxxx, by me known and by me known to be the Vice
-------------------- ----
President of Prestolite Electric Incorporated, a Delaware corporation, who
---------
acknowledged the execution of the foregoing "First Lease Amendment" on behalf of
said corporation.
WITNESS my hand and Notarial Seal this 15th day of July, 1996.
---- ----
[NOTARIAL SEAL APPEARS HERE] /s/ Xxxxx X Xxxxxx
____________________________
Notary Public
XXXXX X. XXXXXX
____________________________
(Printed Signature)
My Commission Expires: 7/10/98
---------
My County of Residence: Monroe
---------
-4-
STATE OF KENTUCKY )
)
COUNTY OF XXXXX )
Before me, a Notary Public in and for said County and State, personally
appeared Xxxxxx X. Xxxxxxx, by me known and by me known to be the Division
President of Prestolite Electric Incorporated, a Delaware corporation, who being
first duly sworn, acknowledged the execution of the foregoing "Lease Agreement"
for and on behalf of said corporation.
WITNESS my hand and Notarial Seal this 24 day of July, 1996.
-- ----
/s/ Xxxxxxx X. York
____________________________
Notary Public
My Commission Expires: January 29, 2000 [NOTARIAL SEAL APPEARS HERE]
--------------------
My County of Residence: Xxxxxxxxx
--------------------
[MAP PRESTOLITE APPEARS HERE]
0000 Xxxxxx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxx
LEASE AGREEMENT
THIS LEASE AGREEMENT. executed this 28th day of June 1996, by and between
DUKE REALTY LIMITED PARTNERSHIP, an Indiana limited partnership ("Lessor"), and
PRESTOLITE ELECTRIC INCORPORATED, an Delaware corporation ("Lessee").
WITNESSETH
1. Basic Lease Provisions. The following constitute the "Basic Lease
----------------------
Provisions" and definitions:
A. Building Name/Number. Prestolite Building;
Address: 0000 Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx;
B. Rentable Area: approximately 85,000 square feet;
C. Building Expense Percentage: 57.3%;
D. Minimum Annual Rent:
Years 1-5 $280,500.00 per year;
E. Monthly Rental Installments:
Months 1-60 $23,375.00 per month;
F. Term: Five (5) years and zero (0) months;
G. Commencement Date: July 1, 1996;
H. Base Amount: $0.00;
I. Security Deposit: $0.00;
J. Brokers: Duke Realty Limited Partnership and Xxxxxxxxx Xxxxxx;
K. Address for payments and notices as follows:
Lessor: Duke Realty Limited Partnership
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxx 00000
Lessee: Prestolite Electric Incorporated
0000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Address for rental
and other payments: Duke Realty Limited Partnership
X.X. Xxx 000000
Xxxxxxxxxx, Xxxx 00000-0000
2. The Leased Premises. Lessor hereby leases and demises to Lessee and
-------------------
Lessee agrees to lease from Lessor a portion of the certain building described
in Item A of the Basic Lease Provisions (the "Building"). The portion of the
Building hereby leased to Lessee has a gross area of approximately the square
footage shown in Item B of the Basic Lease Provisions, and is cross-hatched on
the floor plan attached hereto as Exhibit A which is incorporated herein by
---------
reference (the "Leased Premises").
Lessor also grants to Lessee, together with and subject to the same rights
granted from time to time by Lessor to other lessees and occupants of the
Building, the non-exclusive right to use the common parking area adjoining the
Building, access roads, ingress-egress and any other facilities intended for
common use by all lessees within the Building.
Notwithstanding anything contained herein to the contrary, Lessee agrees to
the non-exclusive use of two (2) dock doors while Lessor constructs two (2)
additional dock doors in the Building.
3. Term.
----
(A) The term of this Lease shall be for the period shown in Item F of the
Basic Lease Provisions (the "Lease Term") commencing on the Commencement Date
shown in Item G of the Basic Lease Provisions. See page 2A attached hereto.
(B) Lessee has personally inspected the Leased Premises and accepts the
same "as is" without representation or warranty by Lessor of any kind and with
the understanding that Lessor shall have no responsibility with respect thereto
except to construct in a good and workmanlike manner the improvements, if any,
designated as Lessor's obligations in the attached Exhibit B, so that the Leased
---------
Premises will be available for Lessee's occupancy by the Commencement Date,
unless prevented by causes beyond Lessor's reasonable control. Such improvements
shall be in accordance with and at the expense of the party indicated on
Exhibit B.
---------
(C) Lessee agrees that if Lessor is unable to deliver possession of the
Leased Premises on the Commencement Date, then Lessor shall not be liable to
Lessee for any loss or damage therefrom, nor shall this Lease be void or
voidable; but in such event the Commencement Date, termination date and all of
the dates of the Lease Term shall be extended to conform to the time of Lessor's
tendered possession of the Leased Premises to Lessee, and Lessee shall not be
obligated to pay Minimum Annual Rent or other sums due Lessor until possession
of the Leased Premises is tendered to Lessee.
4. Minimum Rent.
------------
(A) Lessee agrees to pay as minimum rent for the Leased Premises the sum
of the Minimum Annual Rent as set forth in Item D of the Basic Lease Provisions
payable in Monthly Rental installments as set forth in Item E of the Basic Lease
Provisions without deduction or set-off. The Monthly Rental installments shall
be paid in advance beginning on the Commencement Date and on the first day of
each month thereafter for the term of this Lease (the "Minimum Rent"). The
Monthly Rental installments for partial months shall be prorated based on the
number of the days in such month which are included within the Lease Term
divided by thirty (30).
(B) Lessee acknowledges that Lessor shall incur certain additional
unanticipated costs and expenses, including administrative costs and attorneys'
fees, if Lessee fails to timely pay any payment required hereunder. Therefore,
as compensation for such additional expenses, and in addition to the other
remedies available to Lessor hereunder, if any payment of Minimum Rent or any
other sum or charge required to be paid by Lessee to Lessor hereunder shall
become overdue for a period of five (5) days, a late charge of ten percent (10%)
of the payment so due shall be paid by Lessee as additional rent. In addition,
if Lessee fails to pay within thirty (30) days after the same is due and payable
any sum or charge required to be paid by Lessee to Lessor, such unpaid amount
shall bear interest from the due date thereof to the date of payment at the rate
of twenty-one percent (21%) per annum.
5. Additional Rent, Lessee agrees to pay as "Additional Rent" its
---------------
proportionate share of the amount paid or incurred by Lessor during the Lease
Term for real estate taxes, insurance premiums and common area expenses for the
Building and appurtenant common areas (collectively "Operating Expenses") to the
extent any such amount exceeds the Base Amount per square foot of the Building
area per year as set forth in Item H of the Basic Lease Provisions. Operating
Expenses shall include all Lessor's expenses for operation, repair and
maintenance as necessary to keep the Building and appurtenant common areas in
good order, condition and repair, including but not limited to, utilities (to
the extent such are not separately
2
Option to Extend.
----------------
X. Xxxxx and Exercise of Option. Provided (i) Lessee is not in default
----------------------------
hereunder, and (ii) Lessee originally named herein remains in possession of and
has continuously operated its business in the Leased Premises, Lessee shall have
the option to extend the Term of this Lease (the "Original Term") for two (2)
additional periods of five (5) years each (the "Extension Term(s)"). The
Extension Term shall be upon the same terms and conditions contained in the
Lease for the Original Term except (i) this provision giving two (2) extension
options shall be amended to reflect the remaining options to extend, if any and
(ii) the Minimum Annual Rent shall be adjusted as set forth below (the "Rent
Adjustment"). Lessee shall exercise such option by (i) delivering to Lessor no
later than one hundred twenty (120) days prior to the expiration of such Term,
written notice of Lessee's desire to extend the Term of the Lease and (ii)
delivering to Lessor within ten (10) business days of receipt of the Rent
Adjustment, written notice of its acceptance thereof or withdrawal of its
exercise of such option. Unless Lessor otherwise agrees in writing, Lessee's
failure to timely exercise such option shall waive it and any succeeding option.
Lessor shall notify Lessee of the amount of the Rent Adjustment no later than
ninety (90) days prior to the commencement of the Extension Term. If Lessee
properly exercises its option to extend, Lessor and Lessee shall execute an
amendment to the Lease reflecting the terms and conditions of the Extension
Term.
B. Market Rent Adjustment. The Minimum Annual Rent for the applicable
----------------------
Extension Term shall be an amount equal to the Minimum Annual Rent then being
quoted by Lessor to prospective tenants of the Building for space of comparable
size and quality and with similar or equivalent improvements as are found in the
Building, and if none, then in similar buildings in the vicinity; provided,
however, that in no event shall the Minimum Annual Rent during any Extension
Term be less than the highest Minimum Annual Rent payable during the immediately
preceding Term. The Minimum Monthly Rent shall be an amount equal to one-twelfth
(1/12) of the Minimum Annual Rent for the Extension Term and shall be paid at
the same time and in the same manner as provided in the Lease.
2A
metered), expenses associated with the fire suppression system, driveways,
access roads and parking areas (including resealing, repatching of the parking
lot and snow, trash and ice removal), security systems, lighting facilities,
landscaped areas, walkways, directional signage, curbs, drainage strips, sewer
lines, roof, painting, inspection fees, and all charges assessed against the
Building pursuant to any applicable easements, covenants or development
standards, and management fees (equal annually to fifteen percent (15%) of the
total Operating Expenses for the Building for such year). Operating Expenses
shall not include the costs for capital improvements unless such costs result in
a decrease in the Operating Expenses of the Building, are required by any
governmental authority. The proportionate share to be paid by Lessee shall be a
percentage based upon the proportion that the square footage of the Leased
Premises bears to the total square footage of the Building, which proportion
shall be the amount set forth as the Building Expense Percentage in Item C of
the Basic Lease Provisions. Lessor shall be entitled to estimate the total
amount of Additional Rent to be paid by Lessee during each calendar year and,
upon notice to Lessee of such estimate, to collect such estimate in twelve (12)
equal installments, each such installment due with thc Monthly Rental
Installment payable under this Lease. Within a reasonable-time after the end of
such calendar year, Lessor shall submit to Lessee a statement of the actual
amount of Operating Expenses and the Additional Rent due from Lessee hereunder,
and within thirty (30) days after receipt or such statement, Lessee shall pay
any deficiency between the actual amount owed and the estimates paid during such
calendar year, or in the event of overpayment, Lessor shall credit the amount of
such overpayment toward the next Monthly Rental Installments of Minimum Rent. It
is not intended, however, that Lessee be required to pay its share of any
increased tax assessments resulting from additional improvements constructed for
other lessees in the Building after the Building has been fully completed and
assessed. Operating Expenses shall not include any costs for the initial repairs
and replacements made as part of the improvements to the Building and common
areas as set forth in the second sentence of Section 9B and on Exhibit B-1
attached hereto. -----------
As used herein, the term "real estate taxes" shall include any form of real
estate tax or assessment, general, special, ordinary or extraordinary, and any
license fee, commercial rental tax, improvement bond or bonds, levy or tax
(other than inheritance, personal income or estate taxes) imposed upon the
Leased 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, or
against Lessor's business of leasing the Leased Premises. If the Leased Premises
are not separately assessed, then Lessee's liability shall be an equitable
proportion of the real estate taxes for all of the land and improvements
included within the tax parcel assessed, such proportion to be determined by
Lessor from the respective valuations assigned in Assessor's worksheets or such
other information as may be reasonably available. Lessor's reasonable
determination thereof, in good faith shall be conclusive.
Lessee shall pay, prior to delinquency, all taxes assessed against and levied
upon trade fixtures, furnishings, equipment and all other personal property of
Lessee contained in the Leased Premises or elsewhere. Lessee shall cause such
trade fixtures, furniture, equipment and all other personal property to be
assessed and billed separately from the Leased Premises.
6. Utilities. Lessee shall pay the costs of all utilities serving the Leased
---------
Premises which are separately metered and its proportionate share of any
utilities not separately metered. Lessor does not warrant the uninterrupted
availability of such utilities and any interruption shall not be deemed an
eviction or disturbance of Lessee's right to possession, occupancy and use of
the Leased Premises or any part thereof or render Lessor liable to Lessee for
damages by abatement of rent or otherwise or relieve Lessee from the obligation
to perform its covenants under this Lease. Notwithstanding paragraph 5 and 6
above, Lessee agrees to pay during the Term and any renewals all costs for heat
to the Building so long as the use of the non Leased Premises of the Building is
limited to warehouse uses with minimal associated office space.
7. Security Deposit. Lessee hereby deposits with Lessor the sum set forth in
----------------
Item I of the Basic Lease Provisions as security for the full and faithful
performance by Lessee of all of the terms, conditions and covenants contained in
this Lease on the part of Lessee to be performed, including but not limited to
the payment of the rent. In the event of a default by Lease of any term,
condition or covenant herein contained, Lessor may apply all or part of
3
such security deposit to curing all or any part of such default; and Lessee
agrees to promptly, upon demand, deposit such additional sum with Lessor as may
be required to maintain the full amount of the security deposit. All sums held
by Lessor pursuant to this section shall be without interest. At the end of the
Lease Term, provided that there is then no uncured default, Lessor shall return
the security deposit to Lessee.
8. Use of Leased Premises. The Leased Premises are to be used by Lessee for
----------------------
office use, warehousing, storage and related purposes, and for no other purpose
without the prior written consent of Lessor. Lessee shall not use the Leased
Premises or fail to maintain them in any manner, constituting a violation of the
covenants or any ordinance, statute, regulation or order of any governmental
authority, including but not limited to those governing zoning, health, safety
and occupational hazards, and pollution and environmental control. Lessee shall
not maintain or permit any nuisance to occur on the Leased Premises; nor shall
Lessee's use of the Leased Premises interfere with the reasonable use of the
Building or the common parking areas associated therewith by other lessees.
Lessee shall comply with and obey all reasonable directions of Lessor including
the Rules and Regulations attached to this Lease as Exhibit C and those that may
be adopted by Lessor from time to time.
Lessee covenants and agrees that Lessee will use, maintain and occupy the
Leased Premises in a careful, safe and proper manner and will not commit waste
thereon.
9. Maintenance and Repairs. During the term of this Lease:
-----------------------
(A) Lessee shall, at its own cost and expense, maintain in good
condition and repair the interior of the Leased Premises, including but not
limited to the electrical systems, heating, air conditioning and ventilation
systems, plate glass, windows and doors, sprinkler and plumbing systems.
Lessee's obligations to repair and maintain the Leased Premises shall include
without limitation all plumbing and sewage facilities within the Leased
Premises; fixtures; interior walls; floors; ceilings; windows in the storefront;
doors; plate glass; show cases; skylights; all electrical facilities and
equipment including without limitation lighting fixtures, lamps, fans and any
exhaust equipment and systems; electrical motors; and all other appliances and
equipment of every kind and nature located in, upon or about the Leased Premises
except as to such maintenance and repair as is the obligation of Lessor pursuant
to Subparagraph 9(B) herein. All glass, both interior and exterior, is at the
sole risk of Lessee; and any broken glass shall be promptly replaced at Lessee's
expense by glass in kind, size and quality. Lessee shall obtain a preventative
maintenance contract on the heating, ventilating and air conditioning systems
which shall be subject to the reasonable approval of Lessor and paid for by
Lessee. Notwithstanding anything contained herein to the contrary, Lessee agrees
to maintain at its sole cost and expense, the boiler and heating system and
replace at its sole cost and expense air conditioning and ventilation system
units servicing the Leased Premises. See page 4A attached hereto.
(B) Lessor shall maintain in good condition and repair the exterior
walls, roof, foundation and structural frame of the Building, the fire
suppression system and the parking and landscaped areas and provide the services
which make up the Operating Expenses, the costs of which shall be included in
Operating Expenses provided, to the extent any of the foregoing items require
repair because of the negligence, misuse or default of Lessee, its employees or
invitees, Lessor shall make such repairs at Lessee's expense. Lessor shall at
its own cost and expense, replace the roof, parking lot, the boiler and heating
systems and make other replacements to the Building and Building systems as
Lessor deems necessary.
(C) Unless the same is caused solely by the negligence or willful
misconduct of Lessor, Lessor shall not be liable to Lessee or to any other
person for any damage occasioned by failure in any utility system or by the
bursting or leaking of any vessel or pipe in or about the Lead Premises; or for
any damage occasioned by water coming into the Leased Premises or arising from
the acts or neglects of occupants of adjacent property or the public.
10. Alterations. Lessee shall not permit alterations of or upon any part
-----------
of the Leased Premises or additions to the Leased Premises without first
obtaining the written consent of Lessor. As a condition of such consent, Lessor
may require Lessee to remove the alterations and restore the Leased Premises
upon termination of this Lease.
4
Lessor agrees to contribute toward the cost of any repairs or replacements of
the air conditioning and ventilation system units servicing the Leased Premises
in the maximum amount of Six Thousand Dollars ($6,000.00) in the aggregate for
such repairs or replacements made during the fourth (4th) and fifth (5th) years
of the term of the Lease.
4A
Any alterations, improvements or utility installations in, on or about the
Leased Premises that Lessee shall desire to make which require the consent of
Lessor shall be presented to Lessor in written form with proposed detailed
plans. If Lessor shall give its consent, such consent shall be deemed
conditioned upon (i) Lessee's acquiring a permit to do so from appropriate
governmental agencies, (ii) the furnishing of a copy thereof to Lessor prior to
the commencement of the work and (iii) the compliance by Lessee of all
conditions of said permit in a prompt and expeditious manner. All alterations
and additions to the Leased Premises shall be made in accordance with all
applicable laws and Lessee shall indemnify and save harmless Lessor from all
costs, loss or expense in connection with any construction or installation. All
alterations, additions or improvements shall be installed at Lessee's sole
expense in compliance with all applicable laws and by a licensed contractor
approved in writing by Lessor. Lessor may require Lessee to provide Lessor, at
Lessee's sole cost and expense, a lien and completion bond in an amount equal to
one and one-half (1-1/2) times the estimated cost of such improvements to insure
against any liability for mechanic's and materialmen's liens and to insure
completion of the work. No person shall be entitled to any lien directly or
indirectly derived through or under Lessee or through or by virtue of any act or
omission of Lessee upon the Leased Premises for any improvements or fixtures
made thereon or installed therein or for or on account of any labor or material
furnished to the Leased Premises or for or on account of any matter or thing
whatsoever; and nothing in this Lease contained shall be construed to constitute
a consent by Lessor to the creation of any lien. In the event any lien is filed
against the Leased Premises, or any part thereof, for work claimed to have been
done for or material claimed to have been furnished to Lessee, Lessee shall
cause such lien to be discharged of record within thirty (30) days after filing
by bonding or as provided or required by law or in any other lawful manner.
Lessee shall indemnify and save harmless Lessor from all costs, losses,
expenses, and attorneys' fees in connection with any such lien.
11. Inspection. Lessor or Lessor's agent shall be permitted to inspect or
----------
examine the Leased Premises at any reasonable time, and Lessor shall have the
right to make any repairs to the Leased Premises which are necessary for its
preservation; provided, however, that any repairs made by Lessor shall be at
Lessee's expense, except as provided in Section 9(b) hereof. In addition, during
the last ninety (90) days of the Lease Term, Lessor shall have the right to show
the Leased Premises to prospective lessees; provided, however, that Lessor shall
use good faith efforts to minimize any disruption to Lessee's business. Lessor
shall incur no liability to Lessee for such entry, nor shall such entry
constitute an eviction of Lessee or termination of this Lease, or entitle Lessee
to any abatement of rent.
12. Assignment and Sublease. Lessee shall not assign or sublet this Lease
-----------------------
in whole or in part without the prior written consent of Lessor. In the event
Lessor consent to such assignment or subletting, Lessee shall remain primarily
liable to perform all of the covenants and conditions contained in this Lease,
including but not limited to payment of Minimum Rent and Additional Rent as
provided herein. The acceptance of rent from any other person shall not be
deemed to be a waiver of any of the provisions of this Lease or to be a consent
to the assignment of this Lease or the subletting of the Leased Premises.
Without in any way limiting Lessor's right to refuse to give consent to any
assignment or subletting of this Lease, Lessor reserves the right to refuse to
give consent if in Lessor's discretion and opinion (i) the use of the Leased
Premises is or may be in any way adversely affected; (ii) the business
reputation of the proposed assignee or sublessee is deemed unacceptable; or
(iii) the financial worth of the proposed assignee or sublessee is less than
that of Lessee. Lessor further expressly reserves the right to refuse to give
its consent to any subletting if the proposed rent is to be less than the then
current rent for similar premises in the development of which the Building is a
part (the "Development"). Lessee agrees to reimburse Lessor for reasonable
accounting and attorneys' fees incurred in conjunction with the processing and
documentation of any such requested transfer, assignment, subletting or any
other hypothecation of this Lease or Lessee's interest in and to the Leased
Premises.
If Lessee, having obtained Lessor's consent, shall assign this Lease or
sublet the Leased Premises or any part thereof at a rental or for other
consideration in excess of the Minimum Rent or pro rata portion thereof due and
payable by Lessee under this Lease, then Lessee shall pay to Lessor as
additional rent all such excess rent or other monetary consideration immediately
upon receipt thereof from said assignee or sublessee. If only a portion of the
5
Leased Premises is being sublet, the Minimum Rent due under the terms of this
Lease shall be allocated on a square foot basis to the portion so sublet, and
all excess rent or other consideration due from the sublessee for such month
over the portion of the Minimum Rent so allocated shall be paid to Lessor
immediately upon receipt thereof. It is agreed, however, that Lessor shall not
be responsible for any deficiency if Lessee shall assign this Lease or sublet
the Leased Premises or any part thereof at a rental less than provided for
herein.
13. Fire and Extended Coverage Insurance. During the term of this Lease,
------------------------------------
Lessor shall maintain fire and extended coverage insurance on the Building (the
premiums for which shall be included in Operating Expenses), but shall not
protect Lessee's property on the Leased Premises; and, Lessor shall not be
liable for any damage to Lessee's property, however, caused. Lessee agrees to
maintain insurance on all of its property in the Leased Premises. Lessee hereby
expressly waives any right of recovery against Lessor for damage to any property
of Lessee located in or about the Leased Premises, unless due to the gross
negligence of Lessor; and, Lessor hereby expressly waives any rights of recovery
against Lessee for damage to the Leased Premises or the Building resulting from
the perils insured against under Lessor's fire and extended coverage insurance.
All insurance policies maintained by Lessor or Lessee as provided in this
Section shall contain an agreement by the insurer waiving the insurer's right of
subrogation against the other party to this Lease or agreeing not to acquire any
rights of recovery which the insured has expressly waived prior to loss.
Lessee shall not use the Leased Premises in any manner or store anything in or
upon the Leased Premises which would result in an increase in the premiums for
the fire and extended coverage insurance.
14. Fire and Other Casualty. In the event of total or partial destruction of
-----------------------
the Leased Premises by fire or other casualty insured under the fire and
extended coverage insurance provided pursuant to the terms of this Lease, and in
the event that the insurance proceeds are released by any mortgagee entitled to
such proceeds, Lessor agrees to promptly restore and repair the Leased Premises
at Lessor's expense; provided, however, that in the event the Leased Premises
are (i) so destroyed that they cannot be repaired or rebuilt within one hundred
twenty (120) days after the date of the damage or destruction; or (ii) destroyed
by a casualty which is not covered by the insurance required hereunder, then, in
the case of a clause (i) casualty, either Lessor or Lessee may, or, in the case
of a clause (ii) casualty, then Lessor may, upon thirty (30) days written notice
to the other party, terminate and cancel this Lease; and all further obligations
hereunder shall thereupon cease and terminate. Lessor shall determine whether or
not it is going to repair or rebuild within fifteen days after Lessor receives a
determination from the insurance carrier regarding the availability and amount
of insurance proceeds for rebuilding under clause (i) or within thirty (30) days
after a casualty in the event of a casualty under clause (ii). In the event of a
clause, (i) damage or destruction as described above, Lessee shall have thirty
(30) days after Lessor determines to repair or rebuild the Leased Premises to
terminate this Lease. Any proceeds from the fire and extended coverage insurance
policies not utilized by Lessor in restoring or repairing the Leased Premises
shall become the sole property of Lessor. Rent shall proportionately xxxxx
during the time that the Leased Premises or part thereof are unusable by reason
of any such damage thereto.
15. Liability Insurance. Lessor shall not be liable to Lessee or to any other
-------------------
person for (i) damage to property or injury or death to persons due to the
condition of the Leased Premises, the Building or the appurtenant common areas,
or (ii) the occurrence of any accident in or about the Leased Premises or the
appurtenant common areas, or (iii) any act or neglect of Lessee or any other
tenant or occupant of the Building or of any other person, unless such damage,
injury or death is the result of Lessor's gross negligence; and Lessee hereby
releases Lessor from any and all liability for the same. Lessee shall be liable
for, and shall indemnify and defend Lessor and hold it harmless from, any and
all liability for (i) any act or neglect of Lessee and any person coming on the
Leased Premises or appurtenant common areas by the license of Lessee, express or
implied, (ii) any damage to the Leased Premises, and (iii) any loss of or damage
or injury to any person (including death resulting therefrom) or property
occurring in, on or about the Leased Premises, regardless of cause, except for
any loss or damage from fire or casualty insured as provided herein and except
for that caused by Lessor's gross negligence. Notwithstanding the foregoing,
Lessee shall bear the risk of any loss or damage to its property.
6
Lessee, in order to insure against the liabilities specified in this Lease,
shall at all times during the term of this Lease carry, at its own expense, one
or more policies of general public liability and property damage insurance,
issued by one or more insurance companies holding a general policyholder's
rating of at least A+ as set forth in the most current issue of "Best's
Insurance Guide," and acceptable to Lessor, with the following minimum
coverages:
A. Worker's Compensation: minimum statutory amount.
B. Comprehensive General Liability Insurance, including blanket, contractual
liability, broad form property damage, personal injury, completed
operations, products liability, and fire damage: Not less than $1,000,000
Combined Single Limit for both bodily injury and property damage.
C. Fire and Extended Coverage, Vandalism and Malicious Mischief, and Sprinkler
Leakage insurance, if applicable, for the full cost of replacement of
Lessee's property.
D. Business interruption insurance.
The insurance policy or policies shall protect Lessee and Lessor as their
interests may appear, naming Lessor and Lessor's managing agent and mortgagee as
additional insureds, and shall provide that they may not be cancelled on less
than thirty (30) days prior written notice to Lessor. Lessee shall furnish
Lessor with Certificates of Insurance evidencing all required coverage. Should
Lessee fail to carry such insurance and furnish Lessor with such Certificates of
Insurance after a request to do so, Lessor shall have the right to obtain such
insurance and collect the cost thereof from Lessee as additional rent.
16. Waiver of Subrogation. Lessor and Lessee each hereby release and
---------------------
relieve the other and waive their entire right of recovery against the other for
loss or damage arising out of or incident to the perils insured against or which
are required to be insured against pursuant to the terms of this Lease, which
perils occur in, on or about the Leased Premises.
17. Eminent Domain. If all or any substantial part of the Building or
--------------
appurtenant common areas shall be acquired by the exercise of eminent domain,
Lessor may terminate this Lease by giving written notice to Lessee thirty (30)
days prior to possession thereof is so taken. If all or any part of the Leased
Premises shall be acquired by the exercise of eminent domain in such a manner
that the Leased Premises shall become unusable by Lessee for the purpose for
which it is then being used, Lessee may terminate this Lease by giving written
notice to Lessor within fifteen (15) days after notice of condemnation and this
Lease shall terminate upon the date the Leased Premises or part thereof is so
taken. Lessee shall have no claim against Lessor on account of any such
acquisition for the value of any unexpired lease term remaining after possession
of the Leased Premises is taken. All damages awarded shall belong to and be the
sole property of Lessor; provided, however, that Lessee shall be entitled to any
award expressly made to Lessee by any governmental authority for the cost of or
the removal of Lessee's stock, equipment and fixtures and other moving expenses.
18. Lessor's Right to Mortgage. Lessee agrees at any time, and from time
--------------------------
to time. to execute a consent to the assignment of this Lease by Lessor to its
mortgagee. Lessee's rights shall be subject and subordinate to any bona fide
mortgage now existing upon or hereafter placed upon the Leased Premises by
Lessor; provided, however, that if the mortgagee shall take title to the Leased
Premises through foreclosure or deed in lieu of foreclosure, Lessee shall be
allowed to continue in possession of the Leased Premises as provided for in this
Lease so long as Lessee shall not be in default. Within ten (10) days following
receipt of a written request from Lesser, Lessee shall execute and deliver to
Lessor without cost any instrument confirming the subordination and non-
disturbance of this Lease.
19. Default and Remedy.
------------------
A. The occurrence of any of the following shall be deemed an "Event of
Default":
(1) Lessee shall fail to pay any Monthly Rental installment or Additional
Rent within five (5) days after the same shall be due and payable, or Lessee
shall fail to pay any other amounts due Lessor from Lessee within ten (10) days
after the same shall be due and payable.
(2) Lessee shall fail to perform or observe any term, condition, covenant
or obligation as required under this Lease for a period of thirty (30) days
after notice thereof from Lessor; provided, however, that if the nature of
Lessee's default is such that more than thirty (30) days are reasonably required
to cure, then such default shall be deemed to have been cured if Lessee
commences such performance within said thirty-day period and thereafter
diligently completes the required action within a reasonable time.
(3) Lessee shall vacate or abandon the Leased Premises for any period, or
fail to occupy the Leased Premises or any substantial portion thereof for a
period of thirty (30) days.
(4) All or substantially all of Lessee's assets in the Leased Premises or
Lessee's interest in this Lease are attached or levied under execution (and
Lessee does not discharge the same within sixty (60) days thereafter); a
petition in bankruptcy, insolvency or for reorganization or arrangement is filed
by or against Lessee (and Lessee fails to secure a stay or discharge thereof
within sixty (60) days thereafter); Lessee shall be insolvent and unable to pay
its debts as they become due; Lessee makes a general assignment for the benefit
of creditors; Lessee takes the benefit of any insolvency action or law; the
appointment of a receiver or trustee in bankruptcy for Lessee or its assets if
such receivership has not been vacated or set aside within thirty (30) days
thereafter; dissolution or other termination of Lessee's corporate charter if
Lessee is a corporation.
B. Upon the occurrence of any Event of Default, Lessor shall have the
following rights and remedies, in addition to those allowed by law, any one or
more of which may be exercised without further notice to or demand upon Lessor:
(1) Lessor may apply the security deposit or re-enter the Leased Premises
and cure any default of Lessee and Lessor shall reimburse Lessee as additional
rent for any costs and expenses which Lessor thereby incurs; and Lessor shall
not be liable to Lessor for any loss or damage which Lessor may sustain by
reason of Lessee's action, regardless of whether caused by Lessor's negligence
or otherwise.
(2) Lessor may terminate this Lease or, without terminating this Lease,
terminate Lessee's right to possession of the Leased Premises as of the date of
such default, and thereafter (i) neither Lessee nor any person claiming under or
through Lessee shall be entitled to possession of the Leased Premises, and
Lessee shall immediately surrender the Leased Premises to Lessee; and (ii)
Lessor may re-enter the Leased Premises and dispossess Lessee and any other
occupants of the Leased Premises by any lawful means and may remove their
effects, without prejudice to any other remedy which Lessor may have. Upon the
termination of this Lease, Lessor may declare the present value (as determined
by Lessor) of all rent which would have been due under this Lease for the
balance of the Lease Term to be immediately due and payable, whereupon Lessee
shall be obligated to pay the same to Lessor, together with all loss or damage
which Lessor may sustain by reason of Lessee's default ("Default Damages"),
which shall include without limitation expenses of preparing the Leased Premises
for re-letting, demolition, repairs, tenant finish improvements, and brokers'
and attorneys' fees, it being expressly understood and agreed that the
liabilities and remedies specified in this subsection (b) shall survive the
termination of this Lease.
(3) Lessor may, without terminating this Lease, re-enter the Leased
Premises and re-let all or any part thereof for a term different from that which
would otherwise have constituted the balance of the Lease Term and for rent and
on terms and conditions different from those contained herein, whereupon Lessee
shall be immediately obligated to pay to Lessor as liquidated damages the
difference between the rent provided for herein and that provided for in any
lease covering a subsequent re-letting of the Leased Premises, for the period
which would otherwise have constituted the balance of the Lease Term, together
with all of Lessor's Default Damages.
(4) Lessor may xxx for injunctive relief or to recover damages for any loss
resulting from the breach.
(5) in addition to the defaults and remedies described above, the parties
hereto agree that if Lessee defaults in the performance of any (but not
necessarily the same) term or condition of this Lease three (3) or more times
during any twelve (12) month period, regardless of whether such defaults are
ultimately cured, then such conduct shall, at Lessor's option, represent a
separate Event of Default. Lessee acknowledges that (i) Lessor will incur
additional unanticipated costs as a result of such repetitive defaults,
including but not limited to administrative costs and legal fees, and (ii) the
purpose of this provision is to adequately compensate Lessor for those costs,
which would be difficult to determine with certainty. Therefore, Lessee agrees
to pay to Lessor upon a default under this habitual default provision the amount
of One Thousand Dollars ($1,000.00) as liquidated damages to cure such default,
payable within ten (10) days after written demand therefor to Lessee by Lessor.
C. Neither party's failure or delay in exercising any of its rights or
remedies or other provisions of this Lease shall be construed to be a waiver
thereof or affect its right thereafter to exercise or enforce each and every
such right or remedy or other provision. No waiver of any default shall be
deemed to be a waiver of any other default. Lessor's receipt of less than the
full rent due shall not be construed to be other than a payment on account of
rent then due, nor shall any statement on Lessee's check or any letter
accompanying Lessee's check be deemed an accord and satisfaction, and Lessor may
accept such payment without prejudice to Lessor's right to recover the balance
of the rent due or to pursue any other remedies provided in this Lease. No act
or omission by Lessor or its employees or agents during the term of this Lease
shall be deemed an acceptance or a surrender of the Leased Premises, and no
agreement to accept such a surrender shall be valid unless in writing and signed
by Lessor.
20. Waiver. No waiver of any covenant or condition or the breach of any
------
covenant or condition of this Lease shall be taken to constitute a waiver of any
subsequent breach of such covenant or condition nor justify or authorize a non-
observance on any other occasion of such covenant or condition or any other
covenant or condition; nor shall the acceptance of rent by Lessor at any time
when Lessee is in default of any covenant or condition hereof be construed as a
waiver of such default or of Lessor's right to terminate this Lease on account
of such default.
21. Right to Relocate. INTENTIONALLY OMITTED.
-----------------
22. Surrender and Holdover. Upon the expiration or other termination of
----------------------
this Lease. Lessee shall quit and surrender to Lessor the Leased Premises,
together with all other property affixed to the Leased Premises, broom clean,
and in good order and condition, ordinary wear and tear, fire and similar
casualty excepted. Any damage caused to the Leased Premises by removal of any
property shall be promptly repaired by Lessee. Lessee shall remove all property
of Lessee as directed by Lessor; and failing to do so, Lessor may cause all of
said property to be removed at the expense of Lessee, and Lessee hereby agrees
to pay all the costs and expenses thereby reasonably incurred. Lessee's
obligation to observe or perform this covenant shall survive the expiration or
other termination of this Lease.
Lessee shall, prior to the expiration of the Lease Term, remove all of
Lessee's trade fixtures and equipment, and any damage to the Leased Premises
shall be promptly repaired; provided, however, that all alterations or additions
to the Leased Premises shall, at the option of Lessor, become a part of the
Building and the property of Lessor. Lessee shall give written notice to Lessor
at least thirty (30) days prior to vacating the Leased Premises and shall
arrange to meet with Lessor for a joint inspection of the Leased Premises prior
to vacating. In the event of Lessee's failure to give such notice or arrange
such joint inspection, Lessor's inspection at or after Lessee's vacating the
Leased Premises shall be conclusively deemed correct for purposes of determining
Lessee's responsibility for repairs and restoration.
If Lessee shall remain in possession of all or any part of the Leased
Premises after the expiration of the Lease Term, then Lease shall be deemed a
lessee of the Leased Premises from month to month with the Minimum Rent being
increased to an amount equal to 150% of the Minimum Rent in effect at the end of
the Lease Term and the term of the Lease shall be
9
month-to-month. All other terms and conditions of this Lease shall remain in
full force and effect during such time Lessee remains in possession of all or
any part of the Leased Premises. Acceptance by Lessor of rent after such
expiration or earlier termination shall not result in a renewal of this Lease
and Lessee shall vacate and surrender the Leased Premises to Lessor upon Lessee
being given thirty (30) days' prior written notice from Lessor to vacate.
23. Covenant of Quiet Enjoyment. Lessor agrees that if Lessee shall
---------------------------
perform all of the covenants and agreements herein provided to be performed on
Lessee's part, Lessee shall, at all times during the Lease Term, have the
peaceable and quiet enjoyment of possession of the Leased Premises without any
manner of hindrance from Lessor or any persons lawfully claiming under Lessor,
except as may be provided in this Lease.
24. Notice. Any notice required or permitted to be given or served by
------
either party to this Lease shall be deemed to have been given or served by
either party if it is written and delivered in person or delivered by overnight
courier or mailed, by certified or registered mail, addressed to the addresses
set forth in Item K of the Basic Lease Provisions. All rental payments shall be
made to Lessor at the above address. The addresses may be changed from time to
time by either party by serving notice as above provided.
25. Benefit of Lessor and Lessee. This Lease and all of the terms and
----------------------------
provisions hereof shall inure to the benefit of and be binding upon Lessor and
Lessee and their respective heirs, successors, assigns and legal
representatives.
26. Governing Law. This Lease shall be governed in accordance with the
-------------
laws of the State of Kentucky.
27. Attorneys' Fees. The defaulting party shall be liable for and hereby
---------------
agree to pay any and all expenses, including reasonable attorneys' fees,
incurred by the other party in connection with any default under the terms,
covenants and conditions contained in this Lease.
28. Signs. Lessee may, at its own expense, erect a sign concerning the
-----
business of Lessee which shall be in keeping with the decor and other signs on
the Building. All signage (including the signage described in the preceding
sentence) in or about the Leased Premises shall be first approved by Lessor and
shall be in compliance with the applicable codes and any recorded restrictions
applicable to the Building. Lessee agrees to maintain any sign in good state of
repair, and upon expiration of the Lease Term, Lessee agrees to promptly remove
such signs and repair any resulting damage to the Leased Premises.
29. Estoppel Certificate. Lessee shall, within fifteen (15) days following
--------------------
receipt of a request from Lessor, execute, acknowledge and deliver to Lessor, or
to any lender, holder of any mortgage, purchaser or prospective lender or
purchaser designated by Lessor, a written statement in such form as Lessor may
reasonably request certifying (i) that this Lease is in full force and effect
and unmodified (or, if modified, stating the nature of such modification); (ii)
the date to which the Minimum Rent, Additional Rent, and other charges have been
paid; and (iii) that there are not, to Lessee's knowledge, any uncured defaults
(or specifying such defaults if any are claimed). Any such statement may be
relied upon by any prospective purchaser or mortgagee. Lessee's failure to
deliver such statement within such period shall be conclusive upon Lessee that
this Lease is in full force and effect and unmodified and that there are no
uncured defaults in Lessor's performance hereunder.
30. Broker. Lessee has engaged no brokers who would be entitled to any
------
commission or fee based on the execution of this Lease. Lessee acknowledges that
it has worked with Xxxxxxxxx Xxxxxx in connection with this transaction but that
no commission or fee is due to such broker. Lessor acknowledges that Lessee
shall have no obligation to pay a broker's commission to Lessor or its
affiliates on this Lease.
31. Limitation of Lessor's Liability. If Lessor shall fail to perform or
--------------------------------
observe any term, condition, covenant or obligation required to be performed or
observed by it under this Lease and if Lessee shall, as a consequence thereof,
recover a money judgment against Lessor, Lessee agrees that it shall look solely
to Lessor's right, title and interest in and to the Building for the collection
of such judgment, that being the sole asset to which Lessee may look for payment
of
10
any such judgment; and Lessee further agrees that no other assets of Lessor,
wherever situate, shall be subject to levy, execution or other process for the
satisfaction of Lessee's judgment and that Lessor shall not be liable for any
deficiency.
The references to "Lessor" in this Lease shall be limited to mean and
include only the owner or owners, at the time, of the fee simple interest in the
Building. In the event of a sale or transfer of such interest (except a mortgage
or other transfer as security for a debt), the "Lessor" named herein, or, in the
case of a subsequent transfer, the transferor, shall, after the date of such
transfer, be automatically released from all personal liability for the
performance or observance of any term, condition, covenant or obligation
required to be performed or observed by Lessor hereunder; and the transferee
shall be deemed to have assumed all of such terms, conditions, covenants and
obligations.
32. Hazardous Materials. Lessee shall not in any manner use, maintain or
-------------------
allow the use or maintenance of the Leased Premises in violation of any law,
ordinance, statute, regulation, rule or order of any governmental authority
(collectively "Laws"), including but not limited to laws governing zoning,
health, safety (including fire safety), occupational hazards, pollution and the
environment. Lessee shall not use, maintain or allow the use or maintenance of
the Leased Premises or any part thereof to treat, store, dispose of, transfer,
release, convey or recover hazardous, toxic or infectious waste nor shall Lessee
otherwise, in any manner, possess or allow the possession of any hazardous,
toxic infectious waste on or about the Leased Premises; provided, however, any
toxic material lawfully permitted and generally recognized as necessary and
appropriate for general office use may be stored and used on the Leased Premises
so long as (i) such storage and use is in the ordinary course of Lessee's
business permitted under this Lease; (ii) such storage and use is performed in
compliance with all applicable laws and in compliance with the highest standards
prevailing in the industry for the storage and use of such materials; (iii)
Lessee delivers prior written notice to Lessor of the identity of and
information regarding such materials as Lessor may require; and (iv) Lessor
consents thereto. Hazardous, toxic or infectious waste shall mean any solid,
liquid or gaseous waste, substance or emission or any combination thereof which
may (i) cause or significantly contribute to an increase in mortality or in
serious illness, or (ii) pose the risk of a substantial present or potential
hazard to human health, to the environment or otherwise to animal or plant life,
and shall include without limitation hazardous substances and materials
described in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended; the Resource Conservation and Recovery Act,
as amended; and any other applicable federal, state or local laws. Lessee shall
immediately notify Lessor of the presence or suspected presence of any
hazardous, toxic or infectious waste on or about the Leased Premises and shall
deliver to Lessor any notice received by Lessee relating thereto.
Lessor and its agents shall have the right, but not the duty, to inspect
the Leased Premises and conduct tests thereon at any time to determine whether
or the extent to which there is hazardous, toxic or infectious waste on the
Leased Premises. Lessor shall have the right to immediately enter upon the
Leased Premises to remedy any contamination found thereon, in exercising its
rights herein, Lessor shall use reasonable efforts to minimize interference with
Lessee's business but such entry shall not constitute an eviction of Lessee in
whole or in part, and Lessor shall not be liable for any interference, loss or
damage to Lessee's property or business caused thereby. If any lender or
governmental agency shall ever require testing to ascertain whether there has
been a release of hazardous materials, then the reasonable costs thereof shall
be reimbursed by Lessee to Lessor upon demand as Additional Rent if such
requirement arose in whole or in part because of Lessee's use of the Leased
Premises. Lessee shall execute affidavits, representations and the like from
time to time, at Lessor's request, concerning Lessee's best knowledge and belief
regarding the presence of any hazardous, toxic or infectious waste on the Leased
Premises or Lessee's intent to store or use toxic materials on the Leased
Premises. Lessee shall indemnify and hold harmless Lessor from any and all
claims, loss, liability, costs, expenses or damage, including attorneys' fees
and costs of remediation, incurred by Lessor in connection with any breach by
Lessee of its obligations under this section. The covenants and obligations of
Lessee hereunder shall survive the expiration or earlier termination of this
Lease.
11
33. Miscellaneous.
-------------
(A) Lessee acknowledges having reviewed and signed the attached Agency
Disclosure Statement and Lessee acknowledges that said Statement is signed and
attached. Duke Realty Services Limited Partnership, its agent and employees,
have represented only the Lessor, and have not in any way represented the
Lessee, in the marketing, negotiation, and completion of this Lease transaction.
(B) During the Lease Term and any extensions thereof, Lessee shall provide
to Lessor on an annual basis, within ninety (90) days following the end of
Lessee's fiscal year, a copy of Lessee's most recent certified and audited
financial statements prepared as of the end of Lessee's fiscal year. Such
financial statements shall be prepared in conformity with generally accepted
accounting principles, consistently applied.
(C) The undersigned represents and warrants to Lessor that (i) Lessee is a
Delaware corporation that is duly organized, validly existing and in good
standing in accordance with the laws of the state under which it was organized;
(ii) all action necessary to authorize the execution of this Lease has been
taken by Lessee; and (iii) the individual executing and delivering this Lease on
behalf of Lessee has been authorized to do so, and such execution and delivery
shall bind Lessee. Lessee, at Lessor's request, shall provide Lessor with
evidence of such authority.
(D) Lessee acknowledges that the Building contains asbestos materials and
that Lessor is in the process of complying with OSHA regulations regarding such
asbestos.
(E) Additional provisions, if any, are attached hereto as an Addendum, the
provisions of which are incorporated herein by reference, in the event of any
inconsistencies between the provisions of this Lease and of the Addendum, the
provisions of the Addendum shall control.
(F) Provided Lessee is not in default hereunder, Lessee shall have the
option to terminate this Lease at the end of the thirty-sixth (36th) month of
the Lease Term. Such option shall be exercised by (i) Lessee's giving written
notice to Lessor of its intention to terminate at least six (6) months prior to
the effective date of such termination, and (ii) Xxx'x payment to Lessor of an
amount equal to One Hundred Forty Thousand Two Hundred Fifty Dollars
($140,250.00), which shall accompany the notice provided in (i) above. Such
payment is made in consideration for Lessor's grant of this option to terminate,
to compensate Lessor for rental and other concessions given to Lessee, and for
other good and valuable consideration. Such payment shall not in any manner
affect Lessee's obligations to pay Minimum Annual Rent and Additional Rent or to
perform its obligations under the Lease up to and including the date of
termination. Failure to timely and properly exercise this option shall forever
waive and extinguish it. If such option is validly exercised, then upon such
termination, Lessee shall surrender the Leased Premises to Lessor in accordance
with the terms of this Lease and each party shall be released from further
liability hereunder; provided, however, that such termination shall not affect
any right or obligation arising prior to termination.
EXECUTED BY LESSOR, this 28th day of June, 1996.
---- ----
DUKE REALTY LIMITED PARTNERSHIP,
an Indiana limited partnership
WITNESSES: By: Duke Realty Investments, Inc.,
/s/ Xxxxxxx X. Xxxxxxx General Partner
_________________________
Xxxxxxx X. Xxxxxxx
_________________________
(Printed) By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
/s/ Xxxx X. Xxxxxx Xxxxxx X. Xxxxxxx,
________________________ Vice President
Xxxx X. Xxxxxx
________________________
(Printed)
EXECUTED BY LESSEE, this 28th day of June, 1996
PRESTOLITE ELECTRIC INCORPORATED,
WITNESSES: a Delaware corporation
/s/ Xxxxx X. Xxxxxxxxx, Xx. By:/s/ Xxxxxxx X. Xxxxxxxxx
____________________________ _____________________________
Xxxxx X. Xxxxxxxxx, Xx. Printed: Xxxxxxx X. Xxxxxxxxx
____________________________ ________________________
(Printed) Title: Senior Vice President
__________________________
/s/ Xxxxxx X. Xxxxx
____________________________
Xxxxxx X. Xxxxx
____________________________
(Printed)
WITNESSES:
/s/ Xxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
_________________________________ ______________________________
Xxx X. Xxxxxxx
_________________________________ Printed: Xxxxxx X. Xxxxxxx
(Printed) _________________________
/s/ Xxxx X. Xxxxxx Title: Vice President
_________________________________ ___________________________
Xxxx X. Xxxxxx
_________________________________
(Printed)
STATE OF OHIO )
)SS:
COUNTY OF XXXXXXXX )
Before me, a Notary Public in and for said County and State, personally
appeared Xxxxxx X. Xxxxxxx, by me known to be the Vice President of Duke Realty
Investments, Inc., an Indiana corporation, the general partner of Duke Realty
Limited Partnership, an Indiana limited partnership, who acknowledged the
execution of the foregoing "Lease" on behalf of said partnership.
WITNESS my hand and Notarial Seal this 28th day of June, 1996.
---- ----
/s/ Xxxx X. Xxxxxx
_______________________________
Notary Public
Xxxx X. Xxxxxx
_______________________________
(Printed Signature)
My Commission Expires: _______________________
[SEAL OF NOTARY PUBLIC]
My County of Residence: ______________________
13
STATE OF MICHIGAN )
)SS:
COUNTY OF WASHTENAW )
Before me, a Notary Public in and for said County and State, personally
appeared Xxxxxxx X. Xxxxxxxxx, by me known and by me known to be the Senior Vice
-------------------- -----------
President of Prestolite Electric Incorporated, a Delaware corporation, who
---------
acknowledged the execution of the foregoing "Lease" on behalf of said
corporation.
WITNESS my hand and Notarial Seal this 28th day of June, 1996.
[Notary Stamp /s/ Xxxxx X. Xxxxxxxxx, Xx.
appears here] _______________________________
Notary Public
_______________________________
(Printed Signature)
My Commission Expires: _____________________
My County of Residence: __________________
STATE OF )
)SS:
COUNTY OF )
Before me, a Notary Public in and for said County and State, personally
appeared Xxxxxx X. Xxxxxxx, by me known and by me known to be the Vice President
----------------- --------------
of Prestolite Electric Incorporated, a Delaware corporation, who acknowledged
the execution of the foregoing "Lease" on behalf of said corporation.
The foregoing instrument was acknowledged before me this 28th day of June, 1996.
WITNESS my hand and Notarial Seal this 28th day of June, 1996.
Xxxx X. Xxxxxx
_______________________________
Notary Public
_______________________________
(Printed Signature)
[Notary Stamp
My Commission Expires: _______________________ appears here]
My County of Residence: ___________________
EXHIBIT A
---------
[MAP OF 7585 EMPIRE DRIVE]
EXHIBIT B
---------
Lessee accepts the Leased Premises "As Is" except Lessor shall construct a
demising wall to divide the Building.
EXHIBIT X-x
-----------
To be included in this Exhibit.
1. Lessor to install two (2) additional dock high doors 9 x 10 with edge of
dock plates, dock seals and dock lights.
2. Lessor to install demising wall separating the Leased Premises from the
rest of the space in the Building.
EXHIBIT C
---------
RULES AND REGULATIONS
(These Rules and Regulations have been adopted for the purpose of insuring
order and safety in the Building and of maintaining the rights of Lessee and of
the Lessor.)
1. The sidewalks, entrances, driveways and roadways serving and adjacent to
the Leased Premises, are the property of the Lessor, and shall not be obstructed
or used for any purpose other than ingress and egress. The Lessor shall in all
cases retain the right to control and prevent access to the Property, of all
persons whose presence, in the judgment of the Lessor or its employees, shall be
prejudicial to the safety, character, reputation or interests of the property or
neighboring buildings.
2. No awnings or other projections shall be attached to the outside walls of
the Building. Neither the interior nor the exterior of any windows shall be
coated or otherwise sunscreened without written consent of Lessor.
3. The water and wash closets and other plumbing fixtures shall not be used
for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags or other substances shall be thrown herein. All damages
resulting from any misuse of the fixtures shall be borne by the Lessee who, or
whose sublessees, assignees or any of their servants, employees, agents,
visitors or licensees shall have caused the same.
4. No Lessee shall xxxx, paint, drill into or in any way deface any part of
the exterior Leased Premises or in the Building. No boring, cutting or stringing
of wires shall be permitted, except with the prior written consent of the Lessor
and Lessor may direct.
5. No birds or animals of any kind shall be brought onto or kept in or about
the Property, and no cooking shall be done or permitted by any Lessee on the
Leased Premises, except that the preparation of coffee, tea, hot chocolate and
similar items for Lessees and their employees shall be permitted provided power
shall not exceed that amount which can be provided by a 30-amp circuit. No
Lessee shall cause or permit any unusual or objectionable odors to be produced
or permeate outside the Leased Premises.
6. The Leased Premises shall not be used for manufacturing, unless the use
conforms to the zoning applicable to the area and the Lessor provides written
consent. No Lessee shall operate a business or an office in the Leased Premises
for the manufacture or sale of liquor, narcotics, or tobacco in any form, or as
a retail or wholesale store or general office, in contradiction to the permitted
use in this Lease, without the express written consent of Lessor, not to be
unreasonably withheld. The Leased Premises shall not be used for lodging or
sleeping or for any immoral or illegal purpose.
7. No Lessee shall make, or permit to be made, any noise which may disturb or
interfere with occupants of neighboring buildings whether by the use of any
musical instrument, radio, phonograph, unusual noise or in any other way.
8. No Lessee, sublessee or assignees nor any of its servants, employees,
agents, visitors or licensees shall at any time bring or keep upon the Leased
Premises any flammable, combustible or explosive fluid, chemical or substance,
other than that which is ordinary and necessary for the Lessee's use of the
Leased Premises, as contemplated herein.
9. Each Lessee must upon the termination of its tenancy, deliver to the
Lessor all keys to the offices, storage rooms, toilet rooms, either furnished
to, or otherwise procured by, such Lessee.
10. All persons employed by any Lessee to do work upon the Leased Premises,
while in the Building and outside of the Leased Premises, shall be subject to
and under the control and direction of the Lessee, and Lessee shall be
responsible for all acts of such persons.
11. Canvassing, soliciting and peddling in the adjacent buildings are
prohibited, and each Lessee shall report and otherwise cooperate to prevent the
same.
12. Lessee agrees that it shall not discriminate upon the basis of race,
color, religion, sex or national origin in the use and occupancy or in, any
sublease or subletting of the Leased Premises.
13. No outside storage is permitted including without limitation the storage
of trucks and other vehicles.
14. The Lessor reserves the right to reasonably rescind, modify or supplement
any of these rules and to make such other and further reasonable rules and
regulations which, in the Lessor's judgment may from time to time be necessary
for the safety and cleanliness of the Leased Premises, and for the assurance of
good order therein. Lessor agrees to provide Lessee with a copy of said rules
which shall be deemed a part of this Lease.
Anything contained in these Rules and Regulations which is contrary to or
inconsistent with any express provision of the Lease shall be void and of no
force and effect.
COMERICA LESSOR'S ACKNOWLEDGEMENT AND SUBORDINATION
[For Use Without Assignment Lease]
-------
The undersigned, Duke Realty Limited Partnership, an Indiana limited
partnership, LESSOR, under the terms of a Lease, a copy of which is attached
hereto ("Lease"), acknowledges that Prestolite Electric Incorporated, LESSEE,
has or will receive from Comerica Bank ("Bank"), 000 Xxxxxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, Attention: Loan Documentation Review, certain credit
accommodations.
Notice LESSOR agrees to notify Bank in writing (at the address specified above)
not less than thirty (30) days before commencing any proceedings or otherwise
taking any action to terminate the Lease or to enforce its remedies thereunder.
Subordination LESSOR agrees that Lessee's machinery, equipment, inventory,
fixtures or other property ("Lessee's Property") which may be located on the
leased premises shall remain the personal property of the Lessee and shall not
become a fixture or part of the realty notwithstanding anything that may be
implied by law from the mode of attachment, installation or otherwise. LESSOR
further agrees that any lien or security interest it may claim against any of
Lessee's Property, is hereby subordinated to any lien or security interest now
or subsequently held by Bank in any of such property.
Limited Right of Entry LESSOR acknowledges that, notwithstanding any
noncompliance with or default by LESSEE under the Lease, the Bank shall have the
limited right to enter into and remain in possession of the leased premises for
a period of up to thirty (30) consecutive days for the purpose of enforcing its
liens and security interests in Lessee's Property, including the sale and/or
detachment and/or removal from the leased premises of such property. For the
initial ten (10) days Bank is in possession under this paragraph, Bank shall
have no obligation for rent or other occupancy charges. For the remaining twenty
(20) days (or any portion thereof) Bank is in possession under this paragraph,
Bank shall pay to LESSOR, on a weekly basis in arrears (pro rata, depending on
the number of says Bank is in possession), the current monthly rent accruing
under the Lease during the period while Bank is in possession of the leased
premises, net of any obligations of LESSEE for taxes, insurance or other sums.
Bank shall have no responsibility whatsoever for any back rent or other
obligations which have accrued under the Lease prior to Bank's entry into
possession under this paragraph.
Acknowledgement LESSOR further acknowledges that Bank's rights have been given
for security purposes only, and that unless and until Bank agrees expressly and
in writing to do so, Bank shall have no obligations whatsoever under the Lease.
Date: June 28, 1996
ADDRESS OF LEASED PREMISES: LESSOR(S):
0000 Xxxxxx Xxxxx DUKE REALTY LIMITED PARTNERSHIP,an
----------------- ----------------------------------
Indiana limited partnership
Xxxxxxxx, XX 00000 By: Duke Realty Investments, Inc.
------------------ its general partner
By: /s/ Xxxxxx X. Xxxxxxx
_____________________
Xxxxxx X. Xxxxxxx
Vice President
Acknowledged by LESSEE:
PRESTOLITE ELECTRIC INCORPORATED
BY: /s/ Xxxxxx Xxxxxxx,
-------------------
SIGNATURE OF
ITS: Xxxxxx Xxxxxxx, Vice President
------------------------------
TITLE (if applicable)
Date: June 28 1996
THIRD AMENDMENT TO AGREEMENT FOR PURCHASE
AND SALE OF PROPERTY
This Third Amendment to Agreement for Purchase and Sale of Property is
executed as of the 14th day of June, 1996, by and between DUKE REALTY LIMITED
PARTNERSHIP, an Indiana limited partnership ("Duke"), and PRESTOLITE ELECTRIC
INCORPORATED, a Delaware corporation ("Prestolite").
R E C I T A L S:
- - - - - - - -
X. Xxxx and Prestolite have entered into an Agreement for Purchase and
Sale of Property dated March 29, 1996, as amended by amendments thereto dated
May 13, 1996 and May 31, 1996 (collectively, the "Agreement").
B. The Inspection Date (as defined in the Agreement) is June 14, 1996.
C. Under Section 6.3 of the Agreement, Duke has until the Inspection
Date to exercise its rights to terminate the Agreement and have the Xxxxxxx
Money (as defined in the Agreement) returned to it.
X. Xxxx and Prestolite continue to negotiate acceptable terms of
purchase of the Property (as defined in the Agreement).
X. Xxxx and Prestolite desire to extend the Inspection Date until June
28, 1996 and change the purchase price for the Property.
NOW, THEREFORE, in consideration of the recitals, the mutual convenants
and agreements herein contained and contained in the Agreement and other good
and valuable consideration, the receipt and sufficiency which are hereby
mutually acknowledged, and intending to be legally bound, Prestolite and Duke
hereby agree to amend the Agreement as follows:
1. The first sentence of Section 4.1 is hereby deleted and the following
sentence is substituted in lieu thereof:
The purchase price (the "Purchase Price") for the Property shall be
Three Million Two Hundred Thousand Dollars ($3,200,000.00). Buyer and
Seller acknowledge that the Purchase Price is reduced from the original
Purchase Price agreed to by the parties in the Agreement to account for
the failure to obtain a third party tenant for a portion of the Property
and the condition of the roof. Notwithstanding anything to the contrary
in the Agreement, buyer accepts the roof, AS IS.
2. The second sentence of Section 6.3 is hereby deleted and the
following sentence is substituted in its place:
Buyer shall have until June 28,1996 (the "Inspection Date") in which to
make such investigations and studies with respect to the Property as
Buyer deems appropriate, and to terminate this Agreement, by written
notice to Seller, to be received on or before the Inspection Date, if
Buyer is not, for any reason satisfied with the Property.
3. This amendment may be executed in one or more counterparts, each of
which shall be deemed to be an original, all of which taken together shall
constitute one and the same instrument.
"DUKE"
DUKE REALTY LIMITED PARTNERSHIP,
an Indiana limited partnership
By: Duke Realty Investments, Inc.,
its General Partner
/s/ Xxxxxx X. Xxxxxxx
By: ____________________________
Xxxxxx X. Xxxxxxx
Vice President
"PRESTOLITE"
PRESTOLITE ELECTRIC INCORPORATED,
a Delaware corporation,
/s/ Xxxxxx X. Xxxxxxx
By: _________________________________
Xxxxxx X. Xxxxxxx
Vice President
/s/ Xxxxxxx X. Xxxxxxxxx
By: _________________________________
Xxxxxxx X. Xxxxxxxxx
Xx. Vice President
SECOND AMENDMENT TO AGREEMENT FOR PURCHASE
AND SALE OF PROPERTY
This Second Amendment to Agreement for Purchase and Sale of Property dated
this 31st day of May, 1996, between DUKE REALTY LIMITED PARTNERSHIP, an Indiana
limited partnership ("Duke"), and PRESTOLITE ELECTRIC INCORPORATED, a Delaware
corporation ("Prestolite").
R E C I T A L S:
- - - - - - - -
X. Xxxx and Prestolite have entered into an Agreement for Purchase and
Sale of Property dated March 29, 1996, as amended by an amendment thereto dated
May 13, 1996 (collectively, the "Agreement").
B. The Inspection Date (as defined in the Agreement) is May 31, 1996.
C. Under Section 6.3 of the Agreement, Duke has until the Inspection Date
to exercise its rights to terminate the Agreement and have the Xxxxxxx Money (as
defined in the Agreement) returned to it.
X. Xxxx and Prestolite continue to negotiate acceptable terms of purchase
of the Property (as defined in the Agreement).
X. Xxxx and Prestolite desire to extend the Inspection Date until June 14,
1996.
NOW, THEREFORE, in consideration of the recitals, the mutual convenants and
agreements herein contained and contained in the Agreement and other good and
valuable consideration, the receipt and sufficiency which are hereby mutually
acknowledged, and intending to be legally bound, Prestolite and Duke hereby
agree to amend the Agreement as follows:
1. The second sentence of Section 6.3 is hereby deleted and the following
sentence is substituted in its place:
Buyer shall have until June 14,1996 (the "Inspection Date") in which to
make such investigations and studies with respect to the Property as Buyer
deems appropriate, and to terminate this Agreement, by written notice to
Seller, to be received on or before the Inspection Date, if Buyer is not,
for any reason satisfied with the Property.
2. This amendment may be executed in one or more counterparts, each of
which shall be deemed to be an original, all of which taken together shall
constitute one and the same instrument.
Dated May 31, 1996.
"DUKE"
DUKE REALTY LIMITED PARTNERSHIP,
an Indiana limited partnership
By: Duke Realty Investments, Inc.,
its General Partner
By: /s/ Xxxxxxx X. Xxxx
----------------------------
Xxxxxxx X. Xxxx
Vice President Acquisitions
"PRESTOLITE"
PRESTOLITE ELECTRIC INCORPORATED,
a Delaware corporation
By: Xxxxxx X. Xxxxxxx
---------------------------
Xxxxxx X. Xxxxxxx
Vice President
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------
Printed: Xxxxxxx X. Xxxxxxxxx
-----------------------------
Title: Vice President
-------------------------------
2
AMENDMENT TO AGREEMENT FOR PURCHASE
AND SALE OF PROPERTY
This Amendment to Agreement for Purchase and Sale of Property dated this
13th day of May, 1996, between DUKE REALTY LIMITED PARTNERSHIP, an Indiana
limited partnership ("Duke"), and PRESTOLITE ELECTRIC INCORPORATED, a Delaware
corporation ("Prestolite").
R E C I T A L S:
- - - - - - - -
X. Xxxx and Prestolite have entered into an Agreement for Purchase and
Sale of Property dated March 29, 1996 (the "Agreement").
B. The Inspection Date (as defined in the Agreement) is May 13, 1996.
C. Under Section 6.3 of the Agreement, Duke has until the Inspection Date
to exercise its rights to terminate the Agreement and have the Xxxxxxx Money (as
defined in the Agreement) returned to it.
X. Xxxx and Prestolite continue to negotiate acceptable terms of purchase
of the Property (as defined in the Agreement).
X. Xxxx and Prestolite desire to extend the Inspection Date until May 31,
1996.
NOW, THEREFORE, in consideration of the recitals, the mutual convenants and
agreements herein contained and contained in the Agreement and other good and
valuable consideration, the receipt and sufficiency which are hereby mutually
acknowledged, and intending to be legally bound, Prestolite and Duke hereby
agree to amend the Agreement as follows:
1. The second sentence of Section 6.3 is hereby deleted and the following
sentence is substituted in its place:
Buyer shall have until May 31,1996 (the "Inspection Date") in which to make
such investigations and studies with respect to the Property as Buyer deems
appropriate, and to terminate this Agreement, by written notice to Seller,
to be received on or before the Inspection Date, if Buyer is not, for any
reason satisfied with the Property.
2. This amendment may be executed in one or more counterparts, each of
which shall be deemed to be an original, all of which taken together shall
constitute one and the same instrument.
Dated May 13, 1996.
"DUKE"
DUKE REALTY LIMITED PARTNERSHIP,
an Indiana limited partnership
By: Duke Realty Investments, Inc.,
its General Partner
By: /s/ Xxxxxxx X. Xxxx
------------------------------
Xxxxxxx X. Xxxx
Vice President Acquisitions
"PRESTOLITE"
PRESTOLITE ELECTRIC INCORPORATED,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxx
Vice President
By: ________________________________
Printed: _____________________________
Title: _______________________________
2
Dated May 13, 1996.
"DUKE"
DUKE REALTY LIMITED PARTNERSHIP,
an Indiana limited partnership
By: Duke Realty Investments, Inc., its
General Partner
By: Xxxxxxx X. Xxxx
-------------------------
Xxxxxxx X. Xxxx
Vice President Acquisitions
"PRESTOLITE"
PRESTOLITE ELECTRIC INCORPORATED,
a Delaware corporation
By: _________________________________
Xxxxxx X. Xxxxxxx
Vice President
/s/ Xxxxxxx X. Xxxxxxxxx
By: _________________________________
Xxxxxxx X. Xxxxxxxxx
Printed: ____________________________
Sr. Vice President
Title: _____________________________
2
AGREEMENT FOR PURCHASE
----------------------
AND SALE OF PROPERTY
--------------------
THIS AGREEMENT is made and entered into as of this 29th day of March.
----
1996, by and between PRESTOLITE ELECTRIC INCORPORATED, an Delaware corporation
("Seller"), and DUKE REALTY LIMITED PARTNERSHIP, an Indiana limited partnership
("Buyer").
W I T N E S S E T H T H A T:
- - - - - - - - - - - - - -
WHEREAS, Buyer wishes to purchase, and Seller wishes to sell, the
Property (as hereinafter defined), but only upon the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of Ten Dollars ($10.00), the Xxxxxxx
Money, the mutual covenants and agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, do hereby agree
as follows:
Section 1. Definitions and Exhibits.
--------- -------------------------
1.1 Definitions. For purposes of this Agreement. each of the following
-----------
terms, when used herein with an initial capital letter, shall have the meaning
ascribed to it as follows:
1.1.1 Agreement. This Agreement for Purchase and Sale of Property.
---------
1.1.2 BOMA Standards. The American National Standard adopted and
--------------
approved by the Building Owners and Managers Association International on July
31, 1980, as amended from time to time.
1.1.3 Broker. The broker described in Section 16.1 hereof.
------
1.1.4 Building. The Prestolite Electric Building (148,445 square
--------
feet) located at 0000 Xxxxxx Xxxxx in Florence, Kentucky.
1.1.5 Closing. The closing and consummation of the purchase and
-------
sale of the Property pursuant hereto.
1.1.6 Closing Date. The date on which the Closing occurs as
------------
provided in Section 11.1 hereof.
1.1.7 Confidential Information. The confidential information
------------------------
described in Section 6.1 hereof.
1.1.8 Contract Date. The date upon which this Agreement shall be
-------------
deemed effective, which shall be the date first above written.
1.1.9 Deed. The Warranty Deed to be executed by Seller in the form
----
attached hereto as Exhibit J.
---------
1.1.10 Disclosures. The disclosures described in Section 8.9 hereof
-----------
1.1.11 Environmental Laws. Any applicable statute, code, enactment,
------------------
ordinance, rule, regulation, permit, consent, approval, authorization, license,
judgment, order, writ, common law rule (including without limitation the common
law respecting nuisance and tortious liability), decree, injunction, or other
requirement having the force and effect of law, whether local, state,
territorial or national, at any time in force or effect relating to:
(i) Emissions, discharges, spills, releases or threatened releases of
Hazardous Substances into ambient air, surface water, ground water,
watercourses, publicly or privately owned treatment works, drains, sewer
systems, wetlands, septic systems or onto land;
(ii) The use, treatment, storage, disposal, handling, manufacturing,
transportation or shipment of Hazardous Substances:
(iii) The regulation of storage tanks; or
(iv) Otherwise relating to pollution or the protection of human health
or the environment..
1.1.12 Xxxxxxx Money. The amount deposited by Buyer in escrow with
-------------
Escrow Agent as xxxxxxx money pursuant to the terms and conditions of Section 3
hereof, together with any interest earned thereon (which shall follow
principal).
1.1.13 Escrow Agent. The Title Insurer or such other mutually
------------
acceptable escrow agent acting as Escrow Agent pursuant to the terms and
conditions of the Escrow Agreement and Section 3 hereof.
1.1.14 Escrow Agreement. That certain Escrow Agreement of even date
----------------
herewith among Seller, Buyer and Escrow Agent referred to in Section 3 hereof
and attached hereto as Exhibit A and by this reference made a part hereof.
---------
1.1.15 Hazardous Substances. All substances, wastes, pollutants,
--------------------
contaminants and materials regulated, or defined or designated as hazardous,
extremely or imminently hazardous, dangerous, or toxic, under the following
federal statues and
2
their state counterparts, as well as these statutes' implementing regulations:
the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. (S)(S)9601 et seq., the Federal Insecticide, Fungicide, and Xxxxxxxxxxx
Xxx, 0 X.X.X. (X)(X)000 et seq., the Atomic Energy Act, 42 U.S.C. (S)(S)201 1 et
seq, and the Hazardous Materials Transportation Act, 42 U.S.C. (S)(S)l801 et
seq.;
(ii) Petroleum and petroleum products including crude oil and any
fractions thereof;
(iii) Asbestos: and
(iv) Natural gas, synthetic gas, and any mixtures thereof.
1.1.16 Guarantor or Guarantors. Each guarantor of any of a Tenant's
-----------------------
duties and obligations under such Tenant's Lease (collectively, the
"Guarantors").
1.1.17 Guaranty or Guaranties. Each guaranty presently in effect of
----------------------
all or any of a Tenant's duties and obligations under a Lease (collectively, the
"Guaranties").
1.1.18 Improvements. The Building and any other buildings,
------------
structures and improvements located upon the Land.
1.1.19 Inspection Date. The Inspection Date set forth in Section
---------------
6.3 hereof.
1.1.20 Land. All those tracts or parcels of land described in
----
Exhibit B attached hereto and by this reference made a part hereof.
---------
1.1.21 Lease: Leases. Each lease of space or property within the
-------------
Property in force and effect as of the date hereof (collectively, the "Leases")
within the Property, the Leases being listed in Exhibit C attached hereto and by
---------
this reference made a part hereof.
1.1.22 Permitted Title Exceptions. Those matters identified on
--------------------------
Exhibit D attached hereto and by this reference made a part hereof.
---------
1.1.23 Property. All of Seller's right, title and interest in, to
--------
and under the following property:
(i) The Leases;
(ii) The Land;
(iii) The Improvements;
3
(iv) The personal property (collectively, the "Personal Property")
listed on Exhibit E attached hereto and by this reference made a part
---------
hereof:
(v) The Guaranties;
(vi) The Security Deposits;
(vii) The Surviving Service Contracts; and
(viii) All rights of way or use, licenses, tenements, hereditaments,
appurtenances and easements now or hereafter belonging or pertaining to any
of the foregoing, except those, if any, hereinafter reserved to Seller.
1.1.24 Proration Date. The effective date of the prorations provided
--------------
in Section 4.2 hereof, which is midnight on the eve of the Closing Date.
1.1.25 Purchase Price. The purchase price for the Property described
--------------
in Section 4.1 hereof.
1.1.26 Rent Roll. The rent roll attached hereto as Exhibit F and by
--------- ---------
this reference made a part hereof, or any updated version thereof.
1.1.27 Rents. The rents and other charges under the Leases described
-----
in Section 4.2.1 hereof.
1.1.28 Security Deposits. Any and all security deposits made
-----------------
pursuant to the Leases.
1.1.29 Service Contracts. All of the service or management
-----------------
contracts, equipment, labor or material contracts, maintenance or repair
contracts or other agreements (other than the Leases) that are in force and
effect and affect the Property or the operation, repair or maintenance thereof,
a complete list of such contracts or agreements being contained in Exhibit G
---------
attached hereto and by this reference made a part hereof.
1.1.30 Survey. The survey of the Land described in Section 6.4
------
hereof.
1.1.31 Surviving Service Contracts. Those Service Contracts which
---------------------------
Buyer may elect in writing to assume, with Seller's consent, pursuant to Section
7 below and which shall be assigned to Buyer at the Closing.
1.1.32 Tenant or Tenants. Each Tenant who has executed a Lease
-----------------
(collectively, the "Tenants").
4
1.1.33 Tenant Estoppel Certificates. The estoppel certificates which
----------------------------
Seller shall devote its good faith efforts to obtain from the Tenants, as
provided in Section 10 hereof, such certificates to be substantially in the form
of Exhibit H attached hereto and by this reference made a part hereof.
---------
1.1.34 Title Insurer. Chicago Title Insurance Company or such other
-------------
title insurer acceptable to Buyer and Seller.
1.2 Exhibits and Schedules. Attached hereto and forming an integral part
----------------------
of this Agreement are the following exhibits and schedules, all of which are
incorporated into this Agreement as fully as if the contents thereof were set
out in full herein at each point of reference thereto:
Exhibit A - Escrow Agreement
Exhibit B - Description of Land
Exhibit C - List of Leases
Exhibit D - Permitted Title Exceptions
Exhibit E - List of Personal Property
Exhibit F - Rent Roll
Exhibit 0 - Service Contracts
Exhibit H - Form of Tenant Estoppel Certificate
Exhibit I - Description of Litigation Affecting Seller
or the Property
Exhibit J - Form of Deed
Exhibit K - Assignment and Assumption of Leases and
Guaranties
Exhibit L - Non-Foreign Certificate
Exhibit M - Xxxx of Sale
Exhibit N - Assignment and Assumption of Surviving
Service Contracts
Exhibit O - Uncompleted Tenant Improvements
5
Exhibit P - Notice to Tenants
Schedule 1-
Form of
Lease for Prestolite Electric Incorporated
Schedule 2-
Form of Lease
for Continental PET
Section 2. Purchase and Sale Agreement.
--------- ---------------------------
Subject to and in accordance with the terms and provisions hereof,
Seller agrees to sell and Buyer agrees to purchase the Property.
Section 3. Xxxxxxx Money.
--------- -------------
3.1 Xxxxxxx Money. Simultaneously herewith, Buyer has deposited with
-------------
Escrow Agent the sum of Twenty-five Thousand Dollars ($25,000.00) as the xxxxxxx
money deposit under this Agreement On the Inspection Date, in the event Buyer
completes its due diligence inspections and elects to close on and acquire the
Property, Buyer shall deposit with the Escrow Agent the additional sum of
Twenty-five Thousand Dollars ($25,000.00) as an additional xxxxxxx money deposit
under this Agreement. Such deposits, together with any interest or other income
earned thereon (collectively, the "Xxxxxxx Money"), shall be held, invested and
disbursed pursuant to the respective terms and provisions hereof and of the
Escrow Agreement.
3.2 Disbursement. Whenever the Xxxxxxx Money is by the terms hereof to
------------
be disbursed by Escrow Agent, Seller and Buyer agree promptly to execute and
deliver such notice or notices as shall be necessary or, in the opinion of
Escrow Agent, appropriate to authorize Escrow Agent to make such disbursement.
Section 4. Purchase Price.
--------- --------------
4.1 Purchase Price. The purchase price (the "Purchase Price") for the
--------------
Property shall be Three Million Four Hundred Thousand Dollars ($3,400,000.00).
The Purchase Price, as adjusted by the prorations provided in Section 4.2 hereof
and as reduced by the Xxxxxxx Money, which, unless otherwise disbursed
hereunder, shall be disbursed by Escrow Agent at the Closing to Seller as a
portion of the Purchase Price, shall be paid by Buyer to Seller at the Closing
in United States dollars, by Federal Reserve System wire transfer or other
immediately available funds acceptable to Seller.
4.2 Prorations. The following items shall be prorated between Seller and
----------
Buyer as of the Proration Date, and prorations favoring Buyer, to the extent
determinable as of the Proration Date, shall reduce the Purchase Price payable
by Buyer
6
at the Closing, and such prorations favoring Seller, to the extent determinable
as of the Proration Date, shall increase the Purchase Price payable by Buyer at
the Closing:
4.2.1 Rents, additional rents, common area maintenance charges,
charges for taxes and insurance premiums or for escalations thereof, if any, and
other charges under the Leases (hereinafter collectively referred to as the
"Rents"). If on the Proration Date, any Tenant is delinquent in the payment of
any Rents, then Buyer shall refund to Seller an amount, up to the full amount of
such receivable, at the time of Buyer's receipt of any Rents from such Tenant,
to the extent of any portion of such payment remaining after Buyer deducts all
Rents due Buyer from such Tenant after the Proration Date and after Buyer
deducts any costs of collecting such Rents. Any adjustments for common area
maintenance, taxes or utility charges collected after the Proration Date which
are attributable to any period prior to the Proration Date shall be refunded to
Seller, if, as and when received, after Buyer deducts any costs of collecting
such Rents.
4.2.2 The state and county ad valorem property taxes becoming a lien
on the Property during the calendar year of Closing. If the actual tax bills
have not been issued, then such proration shall be based on 105% of such taxes
for the prior year or tax period, unless Buyer and Seller agree that such taxes
may be more accurately estimated. After the tax bills for the year or tax period
of Closing are received by either Buyer or Seller, Buyer and Seller shall adjust
such proration, and any amount then owing shall be paid within twenty (20) days
of demand by the party entitled thereto. All assessments with regard to the
Property, whether due and payable currently or in future periods, shall be paid
in full by Seller prior to the Closing Date or credited against the Purchase
Price in favor of Buyer.
4.2.3 Sanitary sewer taxes, assessments and utility charges, if any,
to the extent, and only to the extent, such taxes and charges are not required
to be paid by any Tenant.
4.2.4 Operating expenses of the Property, including, without
limitation, charges under the Surviving Service Contracts.
4.2.5 In assuming Seller's obligations under the Leases at the
Closing, Buyer shall specifically assume and agree to pay any and all leasing
commissions, tenant improvement allowances and rent concessions that may become
due and owing or may be required to be credited under any of the Leases after
the Closing, subject, however, to Section 8.3 hereof. Buyer shall not be
entitled to, and shall not receive, a credit against the Purchase Price for any
such future payments. In particular, at Closing Buyer shall pay leasing
commissions of six percent (6%) of the base annual rent payable in the first
three (3) years of the Continental PET lease, and, in addition, Buyer shall
assume responsibility and/or reimburse Seller for the cost of tenant finish
improvements and related construction as required by the Continental PET lease;
provided, however, that Seller shall contract with Buyer or an affiliate of
Buyer for such construction and tenant finish.
7
4.2.6 If the parties make any errors in the closing prorations or if
they subsequently determine that any dollar amount prorated to be incorrect,
each agrees, upon notice from the other within one (1) year after the Closing,
to make any adjustment necessary to correct the error, including payment of any
amount to the other then determined to be owing.
Buyer shall cooperate with Seller and use its best efforts to collect any
payment required to be prorated under this Section 4.2 after the Closing;
provided, however, that Buyer shall have no obligation to bring any legal action
to collect such payment, although Seller shall have the right to xxx delinquent
Tenants for delinquent rent so long as Seller does not cause a termination of
any Lease. Seller shall have the right, at any time for one (1) year after the
Closing upon prior notice to Buyer, to review, inspect and audit any and all
books; records and other information of Buyer relating to any proration required
under this Section 4.2. Buyer and Seller shall promptly pay to the other party
any amount due to the other party as a result of any proration required under
this Section 4.2. All amounts due hereunder shall be payable no later than
twenty (20) days after demand by the payee, and, if such payments duly owing are
not then timely paid, then all such amounts shall bear interest at a rate equal
to fifteen percent (15%) per annum until such time as all such amounts are paid
in full. The terms and conditions set forth in this Section 4.2 shall expressly
survive the Closing hereunder only for the period of time necessary to achieve
final prorations of all amounts due and owing hereunder.
Section 5. Title to the Property. Seller shall convey merchantible and
--------- --------------------
marketable fee simple title to the Land and the Improvements to Buyer in the
form of the Deed, which shall expressly be made subject to the Permitted Title
Exceptions. Buyer shall have until thirty (30) days after the Contract Date by
which to examine title to the Property, obtain any title commitments from the
Title Insurer, and to give written notice to Seller of any objections which
Buyer may have. If Buyer falls to give any notice to Seller by such date, Buyer
shall be deemed to have waived such right to object to any title exceptions or
defects. If Buyer does give Seller timely notice of objection to any other title
exceptions or defects, Seller shall use commercially reasonable efforts to cure
or satisfy such objection by the Closing. If such objection is not so timely and
reasonably cured or satisfied or undertaken to be reasonably cured or satisfied
by Seller, then Buyer shall, within five (5) days thereafter, elect by written
notice to be received by Seller on or before such fifth (5th) day, either to (a)
terminate this Agreement, in which case the Xxxxxxx Money shall be returned to
Buyer by Escrow Agent, and the parties shall have no further rights or
obligations hereunder, except for those which expressly survive any such
termination, or (b) waive its objections hereunder and proceed with the
transaction pursuant to the remaining terms and conditions of this Agreement. If
Buyer fails to give Seller notice of its election by such time, it shall be
deemed to have elected the option contained in subparagraph (a) above. If Seller
does so reasonably cure or satisfy, or undertake to reasonably cure or satisfy,
such objection to the satisfaction of Buyer, as determined in its sole
discretion, then this Agreement shall continue in full force and effect. Buyer
shall have the right at any time to waive any objections that it may have made
and, thereby, to preserve this Agreement in full force and effect. Seller
8
agrees nor to further voluntarily alter or encumber in any way Seller's title to
the Property after the Contract Date (except to the extent provided in Section 9
below) without Buyer's written consent. Notwithstanding anything to the contrary
contained herein, Seller shall be obligated to remove as a title exception (i)
all mortgages, security deeds or other security instruments encumbering the
Property, and (ii) all past due ad valorem taxes and assessments, owners
association, roadway or other easement fees, dues or assessments of any kind,
whether or not of record, which constitute, or may constitute, a lien against
the Property. In addition, Seller shall be obligated to remove (or bond over)
any judgments against the Seller (which do not result from acts or omissions on
the part of Buyer) which have attached to and become a lien against the
Property.
Section 6. Buyer's Inspection.
--------- ------------------
6.1 Document Inspection. Buyer and Seller acknowledge that Buyer shall
-------------------
inspect the Property and shall examine, review and inspect the books and records
relating to the ownership and operation of the Property pursuant to the terms
hereof. Within ten (10) days after the date hereof, Seller shall make available
to Buyer each of the following documents related to the Property that it has in
its possession as of that date:
(a) The Leases:
(b) A rent roll for the Property, outlining the terms of all Leases and
dated not more than thirty (30) days prior to the Contract Date. Seller
shall update such rent roll to a date which is not more than thirty (30)
days prior to the Closing Date;
(c) List of all security deposits, prepaid rent or other sums currently
held by Landlord under the Leases;
(d) All material tenant correspondence, and all financial statements for
tenants which are not subject to a confidentiality agreement. Further,
Buyer shall have the right to visit Seller's offices to inspect and review
tenants' files located at Seller's offices:
(e) Copies of all service, management, leasing or brokerage contracts,
personal property leases and other executory contracts respecting the
Property. Seller shall update such list to a date which is not more than
thirty (30) days prior to the Closing Date;
(f) Copies of real estate tax bills and assessments for the Property for
the current year and for the past three (3) years;
(g) All engineering and architectural plans and specifications,
drawings, site plans, surveys, soil boring test results, other test
results, studies
9
and as-built plans and specifications of the Property, traffic studies, and
other construction and zoning materials for the Property;
(h) Operating statements and related documents and records for the
Property for the current year and for the three (3) years immediately
preceding the current year;
(i) Copies of all certificates of occupancy for the building shell and
for all occupied tenant spaces, licenses, permits, authorizations and
approvals required by law or by any governmental authority having
jurisdiction over the Property, relating to the construction, occupancy,
operation or present use of the Property;
(j) The most recent budget for the Property, including income, operating
expenses, property taxes and assessments and capital expenditures;
(k) A list of all personal property located on the Property and owned by
Seller;
(l) Copies of all warranties and guaranties issued in connection with
the Property;
(m) Copies of all environmental reports of the Property;
(n) Copies of any prior surveys of the Property;
(o) Copies of insurance policies, insurance certificates delivered by
tenants, and claims documentation for the current year and for the past
three (3) years respecting the insurance maintained on the Property or any
portion thereof;
(p) Any other information or documentation relating to the design,
construction, layout, structure, mechanical, electrical and plumbing
systems, fire protection systems and subsurface conditions relating to the
Property; and
(q) Copies of all books, records, bills, invoices, lease files, credit
reports, and other documentation related to the ownership, construction,
operation and leasing of the Property.
6.2 Physical Inspection. Subject to the rights of the Tenants under the
-------------------
Leases and any rights or restrictions under any of the Permitted Title
Exceptions, Buyer and its agents shall have the right, from time to time prior
to the Closing, to enter upon the Property to examine the same and the condition
thereof, and to conduct such surveys and to make such engineering and other
inspections, tests and studies as Buyer shall determine to be reasonably
necessary, all at Buyer's sole cost and expense. Buyer agrees to give Seller
advance notice of such examinations or surveys and to conduct such examinations
or surveys during normal business hours to the extent practicable. Buyer
10
agrees to conduct all examinations and surveys of the Property in a manner that
will not harm or damage the Property or cause any claim adverse to Seller or
default under any Lease, and agrees to restore the Property to its condition
prior to any such examinations or surveys immediately after conducting the same.
6.3 Formal Inspection Period. Notwithstanding Buyer's right of
------------------------
inspection contained in Section 6.2 above, with respect to the condition of the
Property, Buyer's obligation to close under this Agreement is subject to and
conditioned upon Buyer's investigation and study of and satisfaction with the
Property. Buyer shall have until the forty-fifth (45th) day after the date Buyer
has received the Survey, the documents listed in Section 6.1 and a title
commitment and exception documents from the Title Insurer (the "Inspection
Date") in which to make such investigations and studies with respect to the
Property as Buyer deems appropriate, and to terminate this Agreement, by written
notice to Seller, to be received on or before the Inspection Date, if Buyer is
not, for any reason satisfied with the Property. If Buyer fails to give notice
of such termination, to be received by Seller on or before the Inspection Date,
then Buyer's rights under this Section 6.3 shall be deemed to have been
exercised by Buyer and this Agreement shall terminate and the Xxxxxxx Money
shall be refunded to Buyer by Escrow Agent, and the parties shall have no
further rights or obligations hereunder, except for those which expressly
survive any such termination.
6.4 Survey. Within thirty (30) days after the Contract Date, Buyer, at
------
Seller's expense shall obtain a current, ALTA/ACSM as-built survey of the
Property in the form acceptable to Buyer (the "Survey"). The Survey shall (a) be
completed in accordance with the minimum standard detail requirements for the
XXXX Xxxxx survey and certified to Seller. Buyer, Buyer's lender and the Title
Company by such surveyor; (b) have one perimeter description of the Property;
(c) show all easements, right-of-way, setback lines, encroachments and other
matters affecting the use or development of the Property; (d) show the number
and location of all parking spaces; (e) show the address, dimensions and
location of the Improvements and the height and square footage thereof; (f) show
the acreage of the Property; (g) certify the zoning of the Property; and (h)
certify that no portion of the Property lies within a flood plain or wetlands
area. The Deed to be delivered by Seller to Buyer at the Closing shall contain
the legal description of the Property as shown on the Survey.
6.5 Environmental Assessment. Within thirty (30) days after the Contract
------------------------
Date, Buyer shall obtain, at Buyer's expense, a current ASTM Phase I
environmental site assessment for the Property, performed by an environmental
consultant acceptable to Buyer. If the Phase I environmental site assessment
recommends that Phase II environmental site assessment be prepared, Buyer shall
immediately notify Seller. Seller shall have five (5) days after receiving such
notice to either pay for the cost of such Phase II environmental site assessment
and extend the Inspection Date until a reasonable period following completion of
that assessment, or terminate this Agreement. In the event Seller elects to
terminate this Agreement, the Xxxxxxx Money shall be promptly returned to Buyer.
11
6.6 Leases. On or before the Inspection Date, Seller and Continental PET
------
shall have entered into valid and binding leases in the forms attached hereto as
Schedule 1 and Schedule 2 respectively, with such changes as are acceptable to
---------- ----------
Buyer.
6.7 Roof Condition. On or before the Inspection Date, Buyer shall have
--------------
confirmed its expectations and assumption that the roof of the Building is in
good condition with an extended useful life of seven (7) years or more.
Section 7. Service Contracts. Seller shall, at or prior to the Closing,
--------- -----------------
terminate all Service Contracts, except those Service Contracts, designated by
Buyer within ten (10) days of the Closing Date to be Surviving Service
Contracts, which Buyer elects to assume with Seller's consent. Seller shall pay
any cost, penalty or fee of terminating the Service Contracts not designated as
Surviving Service Contracts.
Section 8. Representations and Warranties.
--------- ------------------------------
As of the Contract Date, Seller hereby warrants and represents to Buyer
as follows:
8.1 Rent Roll. The Rent Roll attached hereto as Exhibit F is complete
--------- ---------
and accurate in all material respects, and Seller shall provide an updated
version of the Rent Roll to Buyer at the Closing.
8.2 Leases - Complete Copies. The Leases listed on Exhibit C hereto,
------------------------ ---------
made available to Buyer pursuant to Section 6.1 hereof, are complete and
accurate copies of all of the agreements affecting the use or occupation of the
Property between third parties and Seller, and there are no written or oral
promises, understandings or commitments with any Tenant other than as set forth
in such Leases or described in the Rent Roll, any addendums thereto or Exhibit C
---------
hereto.
8.3 Leases - Default. All of the Leases are in full force and effect.
----------------
Seller has not notified any Tenant that such Tenant is in default, Seller has
not received any notice from any Tenant that Seller is in default under any of
the Leases, Seller has no knowledge of any existing or uncured default, or any
claim of default, under any of the Leases, and no Tenant has asserted or has any
defense, set-off or counterclaim with respect to its tenancy or its obligation
to pay rent, additional rent and other charges pursuant to its Lease. There are
and shall be, from and after the Closing Date, no rental, lease or other
commissions now or hereafter payable to any person or entity with respect to the
Leases. Seller has completed and paid for all tenant improvements required by
the Leases, except as revealed on Exhibit O attached hereto; and, except as may
---------
be revealed in the Leases and on Exhibit O, Landlord has no further obligations
---------
with respect thereto.
8.4 Guaranties - Complete Copies. The Guaranties made available to Buyer
----------------------------
pursuant to Section 6.1 hereof are complete and accurate copies of all of the
Guaranties, all of which are in full force and effect.
12
8.5 Service Contracts. A complete and accurate list and description of
-----------------
all of the Service Contracts is set forth in Exhibit G hereto. To Seller's
---------
knowledge, all such Service Contracts are in full force and effect in accordance
with their respective terms. Seller has not given or received any notice of
default under the Service Contracts, and Seller has no knowledge of any event
which, with the passage of time or the giving of notice, would constitute a
default thereunder. All of the Service Contracts are cancelable without penalty
or premium on thirty (30) days notice by the owner of the Property.
8.6 No Litigation. Except as described in Exhibit I attached hereto and
------------- ---------
by this reference made a part hereof, Seller has no knowledge nor has Seller
received notice, of (a) any actual or pending litigation or proceeding by any
organization, person, individual or governmental agency against Seller with
respect to the Property or against the Property, (b) any violation of the
Property's compliance with applicable fire safety laws, building code
ordinances, zoning ordinances or any similar statutes, ordinances, laws, rules
or regulations, (c) any condition, direct or inadequacy which, if not corrected.
would result in the termination of, or increase in the cost of, insurance
coverage, (d) any proceedings which could cause the change, redefinition or
other modification of the zoning classifications or of other legal requirements
applicable to the Property or any part thereof, or (e) pending or threatened
condemnation proceeding that would affect the Property. Except as revealed in
the information delivered by Seller to Buyer hereunder, Seller has no knowledge
of any material defects in the structural or mechanical components of the
Buildings.
8.7 Boundary Lines of Land. There is no pending litigation or dispute,
----------------------
and Seller has no knowledge nor has Seller received notice, of any dispute,
concerning the location of the lines and corners of the Land, and Seller has not
been served with any legal action concerning the location of the lines and
corners of the Land.
8.8 Authority. Seller is a duly organized and validly formed corporation
---------
under the laws of the State of Delaware, is in good standing in the State of
Kentucky, is qualified to do business in the State in which the Land is located,
is not subject to any involuntary proceeding for dissolution or liquidation
thereof, and has obtained all requisite authorizations to enter into this
Agreement with Buyer and to consummate and close the purchase and sale of the
Property pursuant hereto. Seller's execution, delivery and performance of its
obligations under this Agreement will not conflict with or result in a breach
of, or constitute a default under, any of the provisions of Seller's
organizational documents or of any contract, instrument, law, governmental rule,
regulation, judgment, decree or order to which Seller is a party or by which
Seller is bound.
8.9 No Rights to Purchase. Seller is the sole owner of the Property and,
---------------------
no Person, other than Buyer, has any right, agreement, commitment, option, right
of first refusal or any other agreement, whether oral or written, with respect
to the purchase, assignment or transfer of all or any portion of the Property
(other than the rights of Tenants to lease portions of the Property, as tenants
only, pursuant to the Leases). No
13
party other than Seller and Tenants has or claims any unrecorded or undisclosed
legal or equitable interest in the Property.
8.10 Taxes and Assessments. Except as may be revealed in the public
---------------------
records where the Land is located, the Land is not subject to or affected by any
special assessment for public improvements or otherwise, whether or not
presently a lien upon the Land. Seller has made no commitment to any
governmental authority, utility company, school board, church or other religious
body, homeowner or homeowner's association or any other organization, group or
individual relating to the Property which would impose an obligation upon Seller
or its successors or assigns to make any contributions or dedications of money
or land, or to construct, install or maintain any improvements of a public or
private nature as part of the Property or upon separate lands. No governmental
authority has imposed any requirement that Seller pay, directly or indirectly,
any special fees or contributions or incur any expenses or obligations in
connection with the development of the Property or any portion thereof, other
than any regular and nondiscriminatory local real estate or school taxes
assessed against the Property. No federal, state or local taxing authority has
asserted any tax deficiency, lien, interest or penalty, special assessment or
other assessment against the Property or Seller which has not been paid; and
there is no pending audit or inquiry form any federal, state or local tax
authority or other matter relating to the Property or Seller of which Seller has
notice or knowledge which reasonably may be expected to result in a tax
deficiency, lien, interest, penalty, special assessment or other assessment
against the Property or Seller.
8.11 Environmental Matters. To Seller's knowledge, and except as may be
---------------------
revealed in any environmental report delivered to Buyer pursuant to Section 6.1
hereof:
(a) Hazardous Substances have not been used, generated, transported,
treated, stored, released, discharged or disposed of in, onto, under or
from the Property in violation of any Environmental Laws by Seller or by
any predecessor-in-title or agent of Seller, by any Tenant or by any other
Person at any time;
(b) no notification of release of a Hazardous Substance has been filed
as to the Property, nor is the Property listed on the National Priority
List promulgated pursuant to CERCLA or on any other Federal or state list
of Hazardous Substance sites requiring investigation or cleanup;
(c) there are no above-ground or underground tanks or any other
underground storage facilities located on the Property, and there have
never been such tanks or facilities on the Property.
(d) the Property does not contain any PCBs, asbestos or urea
formaldehyde; and
(e) the Property does not lie within or contain, in whole or in any
part, any wetlands.
14
Seller has received no written or oral notice or other communication of pending
or threatened claims, actions, suits, proceedings or investigations against
Seller or any Tenant or occupant of the Property related to (i) the disposal or
release of solid, liquid or gaseous waste into the environment from the
Property, (ii) the use, generation, transportation, treatment, storage, release,
discharge, disposal or other handling of any Hazardous Substance on the
Property, or (ii) any alleged violation of any Environmental Laws in relation to
the Property.
8.12 Non-Foreign Status. Seller is not a "foreign person" as that term
------------------
is defined in the Internal Revenue Code of 1986, as amended and the Regulations
promulgated pursuant thereto.
8.13 Utilities. All water, sewer, electric, natural gas, telephone and
---------
drainage facilities, and all other utilities required for the intended operation
of the Property, are installed to the Property and are connected with valid
permits. To the best of Seller's knowledge, all utility lines serving the
Property are located within the boundaries of the Property, within lands
dedicated to public use, or within recorded easements for such purpose.
8.14 Warranties. The warranties and guaranties made available to Buyer
----------
pursuant to Section 6.1 hereof are complete and accurate. All such warranties
and guaranties are in full force and effect in accordance with their respective
terms.
8.15 Compliance. To the best of Seller's knowledge, after due inquiry
----------
(i) all governmental approvals necessary for the construction and operation of
the Property have been obtained and are in full force and effect, and (ii) the
Property is in compliance with all zoning, building, health, traffic,
environmental, flood control, fire safety and all other applicable rules,
regulations, ordinances and statutes of all governmental entities having
jurisdiction over the Property.
8.16 Condition. To the best of Seller's knowledge, after due inquiry,
---------
all improvements (including without limitation all pavement; elevators; roofs;
mechanical, plumbing, drainage, structural, heating, ventilating and air-
conditioning systems; or other systems at or servicing the Property and all
other facilities and equipment relating thereto) are in good order and operating
condition, free from physical or mechanical defects (whether latent or patent),
and fully usable for their intended purpose.
8.17 Seller's Knowledge. Whenever a representation and warranty made by
------------------
Seller in this Section 8 is limited to Seller's knowledge, the phrase "Seller's
knowledge" or any derivation thereof shall mean that Seller has made due inquiry
as to the accuracy of the representations and warranties to those of its
officers and supervising employees who are currently employed by Seller and who
are or were responsible on behalf of Seller for the acquisition, development,
leasing, management operation and disposition of the Property and construction
of the Improvements.
15
8.18 Miscellaneous. It shall be a condition of Closing that the
-------------
representations and warranties contained in this Section 8 are true and correct
at Closing and Seller shall be deemed to have reaffirmed these representations
and warranties at Closing. In the event that Seller or Buyer learns that any of
said representations or warranties becomes inaccurate between the Contract Date
and the Closing Date, Seller or Buyer shall immediately notify the other party
in writing of such change. Seller shall then use its good faith efforts to cure
such change after giving or receiving notice thereof as require herein. The
Closing Date shall be automatically extended in order to allow Seller to cure
such change. In the event Seller so cures such change, this Agreement shall
remain in full force and effect. If Seller is unable to cure such change, Buyer
may either (a) terminate this Agreement by written notice to Seller, in which
case the Xxxxxxx Money shall be returned to Buyer and the parties shall have no
further rights or obligations hereunder, except for those which expressly
survive such termination, or (b) waive such right to terminate and proceed with
the transaction pursuant to the remaining terms and conditions of this
Agreement. In the event Buyer elects option (b) in the preceding sentence or in
the event Buyer elects to Close with the knowledge that a representation or
warranty of Seller herein is untrue or incorrect, the representations and
warranties shall be deemed to be automatically amended to reflect said change.
The representations and warranties contained in this Section 8 shall survive
Closing but shall terminate one (1) year after the Closing Date, unless a suit
is filed thereupon in a court of competent jurisdiction on or before the
expiration of said one (1) year period.
Section 9. Preservation of Leases, Surviving Service Contracts and
--------- -------------------------------------------------------
Guaranties. Without Buyer's prior written consent, which shall not be
----------
unreasonably withheld or delayed, Seller shall not enter into any new leases or
amend or modify the Leases or the Surviving Service Contracts after the Contract
Date. After the Contract Date, Seller shall not, without Buyer's prior written
consent, cancel any Lease, Surviving Service Contract or Guaranty, consent to
any surrender or release of any Lease or Guaranty or consent to any assignment
or sublease under any Lease. Seller shall give Buyer notice of any such
contemplated action, and Buyer shall give Seller either its written consent or
objection, giving its reasons for any objection, to be received by Seller on or
before the fifth (5th) day after Buyer's receipt of such notice. If Buyer fails
to give notice of its election within said time period, it shall be deemed to
have not given its consent to said request. Seller shall, from and after the
date of this Agreement to the Closing Date, perform and discharge its duties and
obligations and otherwise comply with every material covenant and agreement of
the landlord or lessor under the Leases and the Surviving Service Contracts, in
its ordinary manner of business and within the time limits required thereunder.
Section 10. Conditions to Closing. Buyer's obligation to proceed to
---------- ---------------------
Closing under this Agreement is subject to the following conditions precedent:
(a) Seller shall have performed and satisfied each and all of Seller's
obligations under this Agreement:
16
(b) Each and all of Seller's representations and warranties set forth in
this Agreement shall be true and correct at the Contract Date and at the
Closing Date;
(c) Buyer shall have received not less than ten (10) days prior to the
Closing Date a Tenant Estoppel Certificate substantially in the form
attached hereto as Exhibit H and in the form acceptable to Buyer, from all
---------
tenants or occupants under each Lease.
(d) There shall be no material change between the Contract Date and the
Closing Date in the physical or financial condition or profitability of the
Property or Improvements or in Seller's obligations with respect thereto;
(e) Seller shall have addressed to the satisfaction of Buyer any
obligations to tenants identified in Exhibit 0;
---------
(f) Buyer shall have received all corporate approvals to complete this
transaction on or before the Closing Date; and
In the event any of the foregoing conditions are not satisfied on the Closing
Date, Buyer shall have no obligation to proceed to Closing and, unless Buyer
shall deliver written notice to Seller that Buyer has waived any unsatisfied
condition and will proceed to Closing, this Agreement shall cease and terminate,
the Xxxxxxx Money shall be returned and paid to Buyer, and neither party shall
have any further obligation hereunder. Notwithstanding the foregoing, nothing
contained herein shall waive or diminish any right or remedy Buyer may have for
Seller's default or breach of this Agreement.
Section 11. Closing.
---------- -------
11.1 Time and Place. Provided that all of the conditions set forth in
--------------
this Agreement are theretofore fully satisfied or performed, the Closing shall
be held at the offices of the Escrow Agent on a date selected by Buyer and
reasonably acceptable to Seller, which shall be on or before fifteen (15) days
after the Inspection Date, unless the Closing Date is postponed pursuant to the
express terms of this Agreement or as otherwise agreed by Seller and Buyer in
writing.
11.2 Closing Documents. For and in consideration of, and as a condition
-----------------
precedent to Buyer's delivery to Seller of the Purchase Price, Seller shall
obtain and deliver to Buyer at the Closing the following documents (all of which
shall be duly executed and witnessed, which documents Buyer agrees to execute
where required):
11.2.1 A Deed. in the form attached as Exhibit J hereto and by this
---------
reference made a part hereof, conveying to Buyer all of Seller's right, title
and interest in and to the Property, subject to the Permitted Title Exceptions
and such other exceptions as are permitted by Section 5 hereof.
17
11.2.2 An Assignment and Assumption of Leases and Guaranties,
including but not limited to an assignment and assumption of all commissions due
under the Leases, in the form attached as Exhibit K hereto and by this reference
made a part hereof; ---------
11.2.3 A Non-Foreign Certificate, in the form attached as Exhibit L
hereto and by this reference made a part hereof; ---------
11.2.4 Such evidence as the Title Insurer shall reasonably require
as to the authority of the parties acting on behalf of Seller and Buyer to enter
into this Agreement and to discharge the obligations of Seller and Buyer
pursuant hereto;
11.2.5 An original executed counterpart or certified copy of each
Lease, Guaranty and Surviving Service Contract,
11.2.6 An updated Rent Roll;
11.2.7 All original Tenant files in possession of Seller;
11.2.8 A Xxxx of Sale for all Personal Property, in the form
attached as Exhibit M hereto and by this reference made a part hereof;
---------
11.2.9 An Assignment and Assumption of Surviving Service Contracts
and Warranties, in the form attached hereto as Exhibit N and by this reference
made a part hereof; ---------
11.2.10 Notice from Seller to each Tenant and Guarantor of the sale
of the Property to Buyer, in the form attached hereto as Exhibit P and by this
reference made a part hereof; ---------
11.2.11 The Tenant Estoppel Certificates (and certificate of Seller,
if applicable) as required by Section 9 hereof;
11.2.12 A properly-completed property transfer tax return, in form
and substance appropriate to the jurisdiction in which the Property is located;
11.2.13 A Closing Statement;
11.2.14 An affidavit of title or other affidavit customarily
required of sellers by the Title Insurer to remove the standard exceptions from
an owner's title insurance policy which are capable of being removed by such an
affidavit; and
11.2.15 Such further instructions, documents and information,
including, but not limited to a Form 1099, as Buyer, Seller or Title Insurer may
18
reasonably request as necessary to consummate the purchase and sale contemplated
by this Agreement.
11.3 Costs. At the Closing, Seller and Buyer shall pay their own
-----
respective costs incurred with respect to the consummation of the purchase and
sale of the Property as contemplated herein, including, without limitation,
attorneys' fees. Notwithstanding the foregoing, it is expressly agreed that
Seller shall pay any city, county or state transfer taxes related to this
sale, one-half of any escrow fees charged by Escrow Agent for the Closing, the
cost of the Survey, the premium for Buyer's title insurance policy (including
the cost of extended coverage and any endorsements, as determined by Buyer in
its sole discretion). Buyer shall pay the cost of recording the Deed, the
costs of any governmental filings required of Buyer, the cost of the Phase I
environmental assessment, one-half of any escrow fees charged by Escrow Agent
for the Closing, any mortgage recording or intangibles tax and all other
taxes, costs, fees or expenses relating to Buyer's financing of the Property,
together with any due diligence costs of Buyer not expressly addressed above.
11.4 Security Deposits and Prepaid Rent. Seller shall pay over and
----------------------------------
assign and transfer to Buyer at the Closing a sum equal to the aggregate of the
Security Deposits, other deposits under the Leases and any Rents prepaid for
months after the month of the Closing Date, and Buyer shall indemnify Seller
against any liability with respect thereto.
Section 12. Default and Remedies.
---------- --------------------
12.1 Buyer's Default. In the event of a default by Buyer under the terms
---------------
of this Agreement, Escrow Agent shall disburse the Xxxxxxx Money to Seller, and
Seller shall be entitled, as its sole and exclusive remedy hereunder, to retain
the Xxxxxxx Money as full liquidated damages for such default of Buyer,
whereupon this Agreement shall terminate and the parties shall have no further
rights or obligations hereunder, except for those which expressly survive any
such termination. It is hereby agreed that Seller's damages in the event of a
default by Buyer hereunder are uncertain and difficult to ascertain, and that
the Xxxxxxx Money constitutes a reasonable liquidation of such damages and is
intended not as a penalty, but as full liquidated damages. Buyer covenants not
to bring any action or suit challenging the amount of liquidated damages
provided hereunder in the event of such default. This provision shall expressly
survive the termination of this Agreement.
12.2 Seller's Default. In the event of a default by Seller under the
----------------
terms of this Agreement which is first discovered by Buyer prior to the Closing
and is not cured by Seller as provided hereunder, Buyer's sole and exclusive
remedies hereunder shall be to either terminate this Agreement and receive a
refund of the Xxxxxxx Money from Escrow Agent, or to seek specific performance
of Seller's obligations under this Agreement, together with any damages caused
by Seller's default hereunder.
19
Section 13. Condemnation or Destruction.
---------- ---------------------------
13.1 Condemnation. Seller hereby represents and warrants that Seller has
------------
no knowledge of any action or proceeding pending, instituted or threatened for
condemnation or other taking of all or any part of the Property by friendly
acquisition or statutory proceeding. Seller agrees to give Buyer immediate
written notice of such actions or proceedings that may result in the taking of
all or a part of the Property. If, prior to the Closing, all or any material
part of the Property is subject to a bona fide threat of condemnation by a body
having the power of eminent domain, or is taken by eminent domain or
condemnation, or sale in lieu thereof, then Buyer, by written notice to Seller,
to be received within thirty (30) calendar days of Buyer's receiving Seller's
notice of such threat, condemnation or taking, or by the Closing Date, whichever
is earlier, may elect to terminate this Agreement.
13.2 Damage or Destruction. If, prior to the Closing, all or any
---------------------
material part of the Property is damaged or destroyed by any cause, Seller
agrees to give Buyer immediate written notice of such occurrence and the nature
and extent of such damage and destruction, and Buyer, by written notice to
Seller, to be received within thirty (30) calendar days of Buyer's receipt of
Seller's notice of such damage or destruction, or by the Closing Date, whichever
is earlier, may elect to terminate this Agreement.
13.3 Termination. If this Agreement is terminated as a result of the
-----------
provisions of either Section 13.1 or Section 13.2 hereof, Buyer shall be
entitled to receive a refund of the Xxxxxxx Money from Escrow Agent, whereupon
the parties shall have no further rights or obligations hereunder, except for
those which expressly survive any such termination.
13.4 Awards and Proceeds. If Buyer does not elect to terminate this
-------------------
Agreement following any notice of a threat of taking or taking by condemnation
or notice of damage or destruction to the Property, as provided above, this
Agreement shall remain in full force and effect and the conveyance of the
Property contemplated herein, less any interest taken by eminent domain or
condemnation, or sale in lieu thereof, shall be effected with no further
adjustments. At the Closing, Seller shall assign, transfer and set over to Buyer
all of Seller's right, title and interest in and to any awards, payments or
insurance proceeds for the actual value of the property lost or destroyed, up to
but not in excess of the Purchase Price, that have been or may thereafter be
made for any such taking, sale in lieu thereof or damage or destruction, to the
extent such awards, payments or proceeds shall not have theretofore been used
for restoration of the Property pursuant to a plan of restoration approved in
writing by Buyer. In addition there shall be credited to Buyer against the
Purchase Price the amount of any insurance deductible or other limitation on
insurance proceeds.
20
Section 14. Assignment.
---------- ----------
14.1 Assignment by Buyer. Except as herein expressly provided, Buyer
-------------------
shall not, without the prior written consent of Seller, which Seller may
withhold in its sole and absolute discretion, assign any of Buyer's rights
hereunder or any part thereof to any person, firm, partnership, corporation or
other entity. If any assignment is made with the consent of Seller, then the
sale contemplated by this Agreement shall be consummated in the name of, and by
and through the authorized officials of, any such assignee. Notwithstanding
anything to the contrary contained herein, Buyer may assign this Agreement and
all of its interests herein to an entity related to Buyer without the consent
of, but with notice to, Seller. Upon such assignment or nomination, the assignee
or nominee shall have and be subject to all the rights, benefits, duties and
obligations of Buyer hereunder, but Buyer shall not be released from any
liability or obligation of Buyer hereunder.
14.2 Assignment by Seller. From and after the Contract Date, Seller
--------------------
shall not, without the prior written consent of Buyer, which consent Buyer may
withhold in its sole discretion, assign, transfer, convey, hypothecate or
otherwise dispose of all or any part of its right, title and interest in the
Property.
Section 15. Buyer's Representation and Warranty.
---------- -----------------------------------
Buyer does hereby represent and warrant to Seller as of the Contract
Date and the Closing Date that it is a validly formed limited partnership under
the laws of the State of Indiana; that it is in good standing in the state of
its organization and qualified to do business in the State in which the Land is
located; that it is not subject to any involuntary proceeding for the
dissolution or liquidation thereof; that it has all requisite authorizations to
enter into this Agreement; and that the parties executing this Agreement on
behalf of Buyer are duly authorized to so do. If Buyer does not terminate this
Agreement on or before the Inspection Date, Buyer shall be deemed to have
represented and warranted to Seller as of the Inspection Date and the Closing
Date that Buyer has all requisite authorization to consummate the transactions
contemplated hereby.
Section 16. Broker and Broker's Commission. Seller retained Xxxxxxxxxx
---------- ------------------------------
Xxxxxx and will pay a commission of One Hundred Thirty Two Thousand Dollars
($132,000.00) to Xxxxxxxxxx Xxxxxx with regard to the sale of the Property.
Except as provided in the preceding sentence, Buyer and Seller each warrant
and represent to the other that such party has not employed a real estate
broker or agent in connection with the transaction contemplated hereby. Each
party agrees to indemnify and hold the other harmless from any loss or cost
suffered or incurred by it as a result of the other's representation herein
being untrue. This Section 16 shall expressly survive the Closing hereunder.
21
Section 17. Notices.
---------- -------
Wherever any notice or other communication is required or permitted
hereunder, such notice or other communication shall be in writing and shall be
delivered by hand, by nationally-recognized overnight express delivery service,
by U.S. registered or certified mail, return receipt requested, postage prepaid,
or by electronic transfer with prompt telephone confirmation to the addresses
set out below or at such other addresses as are specified by written notice
delivered in accordance herewith:
SELLER: Prestolite Electric Incorporated
0000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Fax: (000) 000-0000
With a copy to: Hooper, Hathaway, Price, Beuche & Xxxxxxx
000 X. Xxxx Xxxxxx
Xxx Xxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxxxx. Jr.
Fax: (000) 000-0000
BUYER: Duke Realty Limited Partnership
0000 Xxxxxxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
Fax: (000) 000-0000
With a copy to: Duke Realty Limited Partnership
0000 Xxxxxxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx
Fax: (000) 000-0000
Any notice or other communication mailed as hereinabove provided shall be deemed
effectively given (a) on the date of delivery, if delivered by hand; (b) on the
date mailed if sent by overnight express delivery or if sent by U.S. mail; or
(c) on the date of transmission, if sent by electronic transfer device with a
follow-up by regular mail. Such notices shall be deemed received (a) on the date
of delivery, if delivered by hand or overnight express delivery service; (b) on
the date indicated on the return receipt if mailed; or (c) on the date of
transmission, if sent by electronic transfer device. If any notice mailed is
properly addressed but returned for any reason, such notice shall be deemed to
be effective notice and to be given on the date of mailing.
22
Section 18. Miscellaneous.
---------- -------------
18.1 Governing Law; Headings; Rules of Construction. This Agreement
----------------------------------------------
shall be governed by and construed in accordance with the internal laws of the
State of Indiana, without reference to the conflicts of laws or choice of law
provisions thereof. The titles of sections and subsections herein have been
inserted as a matter of convenience of reference only and shall not control or
affect the meaning or construction of any of the terms or provisions herein. All
references herein to the singular shall include the plural, and vice versa. The
parties agree that this Agreement is the result of negotiation by the parties,
each of whom was represented by counsel, and thus, this Agreement shall not be
construed against the maker thereof.
18.2 No Waiver. Neither the failure of either party to exercise any
---------
power given such party hereunder or to insist upon strict compliance by the
other party with its obligations hereunder, nor any custom or practice of the
parties at variance with the terms hereof shall constitute a waiver of either
party's right to demand exact compliance with the terms hereof.
18.3 Entire Agreement. This Agreement contains the entire agreement of
----------------
the parties hereto with respect to the Property, and no representations,
inducements, promises or agreements, oral or otherwise, between the parties not
embodied herein or incorporated herein by reference shall be of any force or
effect
18.4 Binding Effect. This Agreement shall be binding upon and shall
--------------
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, legal representatives, successors and assigns
(subject to Section 14 above).
18.5 Amendments. No amendment to this Agreement shall be binding on any
----------
of the parties hereto unless such amendment is in writing and is executed by the
party against whom enforcement of such amendment is sought.
18.6 Possession. Possession of the Property shall be granted by Seller
----------
to Buyer no later than the Closing Date, subject to the Permitted Title
Exceptions and other tide matters allowed under Section 5.1 hereof.
18.7 Date For Performance. If the time period by which any right, option
--------------------
or election provided under this Agreement must be exercised, or by which any act
required hereunder must be performed, or by which the Closing must be held,
expires on a Saturday, Sunday or legal or bank holiday, then such time period
shall be automatically extended through the close of business on the next
regularly scheduled business day.
18.8 Recording. Seller and Buyer agree that they will not record this
---------
Agreement and that they will not record a short form of this Agreement.
23
18.9 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original, but all of which,
when taken together, shall constitute but one and the same instrument.
18.10 Time of the Essence. Time shall be of the essence of this
-------------------
Agreement and each and every term and condition hereof.
18.11 Severability. This Agreement is intended to be performed in
------------
accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules and regulations, and is intended, and shall for all purposes
be deemed to be, a single, integrated document setting forth all of the
agreements and understandings of the parties hereto, and superseding all prior
negotiations, understandings and agreements of such parties. If any term or
provision of this Agreement or the application thereof to any person or
circumstance shall for any reason and to any extent be held to be invalid or
unenforceable, then such term or provision shall be ignored, and to the maximum
extent possible, this Agreement shall continue in full force and effect, but
without giving effect to such term or provision.
18.12 Confidentiality. Buyer covenants and agrees that the terms of this
---------------
Agreement, as well as the identity of the parties to the transactions
contemplated thereby and hereby, and all information concerning the Property
(including, without limitation, all information obtained by Buyer prior to the
Closing Date) shall be kept in strictest confidence by Buyer prior to the
Closing, and thereafter, if the Closing fails to occur for any reason. After the
occurrence of the Closing, Buyer may disclose that the transactions contemplated
hereby have occurred and that the Property has been sold, but shall not disclose
the Purchase Price, except to actual or prospective lenders, investors,
shareholders and governmental agencies. Notwithstanding the foregoing, nothing
contained herein shall be construed so as to prohibit Buyer from making (a) a
disclosure to officers, employees and those agents, contractors or vendors which
need to know in order to assist Buyer in its purchase of the Property, (b) any
disclosure required by law, including any such disclosure required by any
Federal, state or local governmental agency or court of competent jurisdiction,
or (c) any disclosure which is reasonably necessary to protect any such party's
interest in any action, suit or proceeding brought by or against such party and
relating to the Properties or the subject matter of this Agreement.
18.13 Attorneys' Fees. In the event that either party shall bring an
---------------
action or legal proceeding for an alleged breach of any provision of this
Agreement or any representation, warranty, covenant or agreement herein set
forth, or to enforce, protect, determine or establish any term, covenant or
provision of this Agreement or the rights hereunder of either party, the
prevailing party shall be entitled to recover from the nonprevailing party, as a
part of such action or proceedings, or in a separate action brought for that
purpose, reasonable attorneys' fees and costs, expert witness fees and court
costs as may be fixed by the court or jury.
24
18.14 Like-Kind Exchange. Buyer shall have the right to acquire the
------------------
Property as part of a transaction that Buyer intends to qualify as a tax-
deferred exchange under Section 1031 of the Internal Revenue Code. Seller shall
make all reasonable efforts to cooperate with Buyer, provided, however, that the
date of Closing hereunder shall not thereby be delayed, Seller shall not be
obligated to incur any additional expenses and Buyer shall defend, indemnify and
hold harmless Seller against any and all losses, costs, expenses and liabilities
which may arise out of such tax-deferred exchange. To facilitate such exchange,
Buyer shall have the right to assign all of its right, title and interest in
this Agreement to a qualified intermediary and to require Seller to convey the
Property to that intermediary pursuant to the terms of this Agreement.
18.15 Financial Representations. At Buyer's request, Seller agrees to
-------------------------
make available to Buyer or Buyer's designated representative all financial books
and records for the Property being sold, and to provide such assistance so as to
permit preparation, at Buyer's expense, of audited or unaudited financial
statements for all periods required to be prepared by the Rules and Regulations
of the Securities and Exchange Commission relating to the purchase of the
Property. Seller also agrees to make such reasonable representations to Buyer's
independent accountants as may be required by such independent accountants in
order to enable them to render an opinion on the financial statements of the
Property for the periods.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed and sealed by its duly authorized signatory, effective as of the
day and year first above written.
SELLER:
------
PRESTOLITE ELECTRIC INCORPORATED
/s/ Xxxxxx X. Xxxxxxxx
By: __________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
/s/ Xxxxx X. Xxxxxxxxxx
By: __________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: Senior Vice President
[CORPORATE SEAL]
25
BUYER:
-----
DUKE REALTY LIMITED PARTNERSHIP,
an Indiana limited partnership
By: Duke Realty Investments, Inc., an
Indiana corporation, as general
partner
/s/ Xxxxxxx X. Xxxx
By: __________________________
Xxxxxxx X. Xxxx
Vice President Acquisitions
/s/ Xxxxx X. Xxxxxxxx
Attest: __________________________
Xxxxx X. Xxxxxxxx
Corporate Attorney
26
EXHIBIT A
---------
ESCROW AGREEMENT
----------------
THIS AGREEMENT is made and entered into this ____ day of ______________
1995, by and among _____________________________________ a(n)
_______________________ ("Seller"), and DUKE REALTY LIMITED PARTNERSHIP, an
Indiana limited partnership ("Buyer"), and _____________________________________
("Escrow Agent").
WHEREAS, Seller and Buyer have entered into that certain Agreement for
Purchase and Sale of Property (the "Purchase Agreement") dated as of __________,
1995, for the sale and purchase of that certain real property described therein;
the Purchase Agreement is attached hereto as Exhibit A and by this reference
---------
made a part hereof, and all terms used but not defined herein shall have the
meanings given to such terms in the Purchase Agreement; and
WHEREAS, Buyer and Seller desire to have Escrow Agent hold the Xxxxxxx
Money in escrow, as required by the Purchase Agreement and pursuant to the terms
hereof.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency whereof are hereby
acknowledged, the parties hereto hereby covenant and agree as follows:
1. Buyer and Seller appoint _______________________ as Escrow Agent
hereunder.
2. Buyer will deliver and deposit with Escrow Agent the amount of
$________, representing the Xxxxxxx Money required by Section 3 of the Purchase
Agreement. The Escrow Agent agrees to immediately deposit the Xxxxxxx Money in
an interest-bearing account in a national banking association and to hold and
disburse the same, together with any interest earned thereon, as required by the
Purchase Agreement.
3. Upon the Closing Date, Escrow Agent shall apply the Xxxxxxx Money,
together with any accrued interest thereon, to the Purchase Price as required by
the Purchase Agreement.
4. Within fifteen (15) days after written notification from both Buyer
and Seller that the sale contemplated by the Purchase Agreement shall not take
place, Escrow Agent shall deliver the Xxxxxxx Money as required by the Purchase
Agreement.
A-1
5. Buyer and Seller hereby covenant and agree that Escrow Agent shall
not be liable for any loss, cost or damage which it may incur as a result of
serving as Escrow Agent hereunder, except for any loss, cost or damage arising
out of Escrow Agent's gross negligence or willful misconduct. Accordingly,
Escrow Agent shall not incur any liability with respect to (a) any action taken
or omitted to be taken in good faith upon advice of its counsel, given with
respect to any questions relating to its duties and responsibilities hereunder,
or (b) any action taken or omitted to be taken in reliance upon any document,
including any written notice of instruction provided for herein or in the
Purchase Agreement, not only as to the due execution and the validity and
effectiveness thereof, but also as to the truth and accuracy of any information
contained therein, which Escrow Agent shall in good faith believe to be genuine
and to have been signed or presented by proper person or persons in conformity
with the provisions of this Agreement. Buyer and Seller hereby agree to
indemnify and hold harmless Escrow Agent against any and all losses, claims,
damages, liabilities and expenses, including, without limitation, reasonable
costs of investigation and reasonable attorneys' fees and disbursements actually
incurred, which may be imposed upon and incurred by Escrow Agent in connection
with its serving as Escrow Agent hereunder. In the event of a dispute between
Buyer and Seller, Escrow Agent shall be entitled to tender unto the registry or
custody of any court of competent jurisdiction in Xxxxxx County, Indiana all
money or property in Escrow Agent's hands held under the terms of this Agreement
and the Purchase Agreement, together with such legal pleadings as it deems
appropriate, and thereupon shall be discharged of its obligations hereunder and
under the Purchase Agreement.
6. Any notice required hereunder shall be delivered to the parties and
in the manner as required by the Purchase Agreement. Escrow Agent's address for
notice purposes is as follows:
_______________________________
_______________________________
_______________________________
Attn:__________________________
Telephone:_____________________
Facsimile: ____________________
7. This Agreement shall be governed by and construed in accordance with
the internal laws of the State of ___________________, without reference to the
conflicts of laws or choice of law provisions thereof.
8. This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective heirs, executors, administrators,
legal representatives, successors and assigns.
A-2
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed and sealed as of the date first written above.
SELLER:
------
By: __________________________
Name: ________________________
Title: _______________________
Attest: ______________________
Name: ________________________
Title: _______________________
[CORPORATE SEAL]
BUYER:
-----
DUKE REALTY LIMITED PARTNERSHIP,
an Indiana limited partnership
By: Duke Realty Investments, Inc.,
an Indiana corporation, as general
partner
By: ________________________
Xxxxxxx X. Xxxx
Vice President Acquisitions
Attest: ________________________
Name: __________________
Title: _________________
[CORPORATE SEAL]
A-3
ESCROW AGENT:
------ -----
By: __________________________
Name: ________________________
Title: _______________________
A-4
EXHIBIT A TO ESCROW AGREEMENT
-----------------------------
[THE PURCHASE AGREEMENT]
A-5
EXHIBIT B
---------
DESCRIPTION OF LAND
-------------------
B-1
EXHIBIT C
---------
LIST OF LEASES
--------------
C-1
EXHIBIT D
---------
PERMITTED TITLE EXCEPTIONS
--------------------------
1. Taxes and assessments becoming a lien in the calendar year in which the
Closing occurs but which are not, as of the date of Closing, due and payable.
2. Written leases with tenants and any new written leases entered into between
the Contract Date and the Closing Date in accordance with this Agreement.
3. Matters shown on the Survey.
4. Other title exceptions listed in Buyer's Title Commitment and acceptable to
Buyer.
D-1
EXHIBIT E
---------
LIST OF PERSONAL PROPERTY
-------------------------
NONE
----
E-1
EXHIBIT F
---------
RENT ROLL
---------
F-1
EXHIBIT G
---------
SERVICE CONTRACTS
-----------------
G-1
EXHIBIT H
---------
TENANT ESTOPPEL CERTIFICATE
---------------------------
Tenant: _____________________________________ ("Tenant")
Landlord: _____________________________________ ("Landlord")
Buyer: ______________________________________ and its successors and
assigns ("Buyer")
Regarding: Lease by and between ________________________ and
______________
____________________dated ___________,19___, as amended by amendments
dated ___________________ (collectively the "Lease")
Leased Premises: __________________________________ ("Premises")
In connection with Buyer's purchase of the Premises, Tenant certifies to
Buyer as follows:
1. Attached hereto as Exhibit A is a true, correct and complete copy of
---------
the Lease, as the same may have been modified or amended, together with any and
all guaranties of the Lease that may have been delivered to Landlord or any
predecessor to Landlord thereunder.
2. The Lease is in full force and effect and has not been modified,
supplemented or amended in any way except as indicated above; and the Lease
represents the entire agreement between the parties as to this leasing and/or
Tenant's rights to the Premises. There are no oral agreements or understandings
between Landlord (and its predecessors and/or successors if applicable) and
Tenant with respect to the Lease or any obligations of any party thereunder. The
Lease contains no options to purchase, rights of refusal, rights of first offer
or rights of negotiation in favor of Tenant with respect to the purchase of the
property of Landlord (or its predecessors, if applicable).
3. The term of the Lease commenced on ______________ and expires on
___________________. Tenant has given Landlord a security deposit of
$________________.
H-1
4. Rent under the Lease of $___________ per month has been paid through
the date of ___________________. No rent due has been paid more than one (1)
month in advance. Tenant has no defenses or offsets which could be alleged in
any action brought for rent accruing subsequent to the date of this Certificate.
On ____________ 19__ rent under the Lease increases to $________ per month.
5. Tenant currently pays Landlord $________ per month for charges other
than rent, including operating expense pass throughs, which are due and payable
under the Lease. Such payments have not been made for any period more than one
(1) month in advance of such payment. For the latest fiscal, calendar or lease
year commencing 199 , to date, Tenant has paid to Landlord $_________ for such
costs. Tenant does not dispute the amount or method of calculating such charges.
6. Tenant has not executed any lease or sublease with respect to the
Premises except the Lease, and Tenant has not assigned or encumbered its
interest in the Lease.
7. Landlord has satisfied all conditions under the Lease in the nature of
inducements to Tenant's occupancy, including without limitation all co-tenancy
requirements thereunder; and all improvements required by the terms of the Lease
to be made by Landlord have been satisfactorily completed.
8. Landlord has paid in full all amounts required by the Lease to be paid
by Landlord to Tenant on account of Tenant's improvements or as otherwise
required by the Lease.
9. Landlord has no present or future obligation to Tenant for upfitting,
decorating or improvements in connection with or arising out of the Lease,
whether the same relates to space which Tenant currently occupies, space upon
which Tenant may have an option, or otherwise.
10. Tenant has not defaulted and is not currently in default in its
obligations under the Lease and, to the best of Tenant's knowledge, Landlord has
not defaulted and is not currently in default in any of its obligations under
the Lease. Neither Tenant nor, to the best of Tenant's knowledge, Landlord has
committed any breach under the Lease which, alone or with the passage of time,
the giving of notice, or both, would constitute a default thereunder Tenant has
not received from or given to Landlord any notice of default or breach under the
Lease. To the best of Tenant's knowledge, on this date Tenant has no defenses,
offsets or counterclaims against Landlord's enforcement of the Lease or Tenant's
payment of rent and other charges thereunder.
H-2
11. Tenant's operation and use of the Premises do not involve the
generation, treatment, storage, disposal or release of a hazardous substance or
material or a solid waste. To the best of Tenant's knowledge, the Premises do
not contain any hazardous substances or materials except (i) those lawfully
permitted and generally recognized as necessary and appropriate for Tenant's
permitted use. And (ii) Tenant is operating the Premises in accordance with all
applicable laws. Tenant has received no notice of noncompliance with any
applicable law.
In the event the Lease is assigned to Buyer, or in the event Buyer
purchases and acquires the land and improvements in or on which is located the
space demised by the Lease, Tenant agrees that from and after the date of such
acquisition, and until otherwise notified by Buyer, Tenant shall make its
payments of rent and other charges due under the Lease to Buyer at the following
address:
__________________________
__________________________
__________________________
Tenant agrees that, upon Buyer's purchase of the Premises, Tenant will
attorn to and recognize Buyer as the Landlord under the Lease, with the same
force and effect as if there were a direct lease between Tenant and Buyer.
Tenant further agrees that Buyer shall not be liable for any defaults or other
acts or omissions of Buyer's predecessors in interest in the Premises
(including, but not limited to, Landlord).
Tenant acknowledges that Buyer has relied on the information contained in
this Tenant Estoppel Certificate in determining whether to acquire the land and
improvements in or on which is located the space demised by the Lease. The
statements contained herein may be relied upon by Landlord, Buyer, and Buyer's
Lender, if any, in connection with Buyer's purchase of the Premises.
Executed this _____ day of ___________, 1995.
TENANT:
By:_____________________________
Printed:________________________
Title:___________________________
H-3
EXHIBIT I
---------
DESCRIPTION OF LITIGATION AFFECTING SELLER OR THE PROPERTY
----------------------------------------------------------
NONE
----
I-1
EXHIBIT J
---------
LIMITED WARRANTY DEED
THIS INDENTURE WITNESSETH, that ______________________________ a(n)
corporation ("Grantor"), CONVEYS AND SPECIALLY WARRANTS to
________________________________ a(n) corporation for the sum of Ten Dollars
($10.00) and other good and valuable consideration, the receipt of which is
hereby acknowledged, certain real estate and all improvements located thereon
located in _____________________, ___________, as more specifically described in
the attached Exhibit A, subject to those matters more specifically described on
---------
Exhibit B, which is attached hereto and incorporated herein by reference.
---------
The warranty of title by Grantor is limited to a warranty against the acts
of Grantor and those claiming by, through or under Grantor, and not otherwise.
IN WITNESS WHEREOF, Grantor has caused this Limited Warranty Deed to be
executed this ___ day of ________________, 199___.
______________________________
a(n) _____________ corporation
WITNESSES
By: ___________________________
______________________
(printed) Printed:________________________
______________________ Title:_____________________________
(printed)
J-1
STATE OF __________)
) SS:
COUNTY OF __________)
Before me, a Notary Public in and for said County and State, personally
appeared _____________, by me known and by me known to be the _______________ of
____________________, a(n) corporation, who acknowledged the execution of the
foregoing on behalf of said ____________________________.
WITNESS my hand and Notarial Seal this ___th day of ______________,
199__.
_____________________________
Notary Public
_____________________________
(Printed Signature)
My Commission Expires:_______________
My County of Residence:_______________
This instrument was prepared by: ______________, Attorney at Law,
____________________________
After recording return to: _______________________________
_______________________________
_______________________________
Sent tax bills to: _______________________________
_______________________________
_______________________________
J-2
EXHIBIT K
---------
STATE OF__________
COUNTY OF________
ASSIGNMENT AND ASSUMPTION OF
----------------------------
LEASES AND GUARANTIES
---------------------
THIS ASSIGNMENT is made and entered into as of this ____ day of
_____________, 19___, by and between ________________________________., a
______________________ corporation (hereinafter referred to as "Assignor") and
DUKE REALTY LIMITED PARTNERSHIP, an Indiana limited partnership (hereinafter
referred to as "Assignee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, contemporaneously with the execution and delivery of this
Assignment, Assignor has sold and conveyed to Assignee all that tract or parcel
of land more particularly described in Exhibit A attached hereto and
---------
incorporated herein by reference, together with all improvements thereon and all
rights, easements and appurtenances thereto (hereinafter collectively referred
to as the "Property");
WHEREAS, in connection with such conveyance of the Property, Assignor
and Assignee have agreed that Assignor shall transfer and assign to Assignee all
right, title and interest of Assignor in and to all leases, subleases and other
occupancy agreements (hereinafter collectively referred to as the "Leases") in
force and effect at the date hereof, whether or not of record, for the use or
occupancy of any portion of the Property, as described in Exhibit B attached
---------
hereto and incorporated herein by reference, all guaranties (hereinafter
collectively referred to as the "Guaranties") of the obligations of the tenants
under the Leases as described in Exhibit C attached hereto, and all security
---------
deposits (hereinafter collectively referred to as the "Security Deposits") as
described in Exhibit D attached hereto, the receipt of which is hereby
---------
acknowledged by Assignee;
WHEREAS, Assignor and Assignee have further agreed that Assignee shall
expressly assume all of the obligations of Assignor arising under each of the
Leases from and after (but not before) the date of this Assignment, including,
without limitation, all obligations under the Leases with respect to Security
Deposits:
NOW, THEREFORE, for and in consideration of Ten Dollars ($10.00), the
mutual covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by each party hereto.
Assignor and Assignee hereby agree as follows:
K-1
1. Transfer and Assignment. Assignor hereby sells, transfers,
-----------------------
assigns, delivers and conveys to Assignee, its successors and assigns, subject
to the permitted title exceptions set forth in Exhibit E attached hereto and
made a part hereof, all right, title and interest of Assignor in, to and under
the Leases, the Guaranties and the Security Deposits.
2. Assumption of Obligations. Assignee hereby assumes and agrees to
-------------------------
observe and perform all of the obligations and duties of Assignor under each of
the Leases for that period of time from and after, but not before, the date of
this Assignment, including without limitation, all covenants and obligations of
Assignor with respect to the Security Deposits.
3. Indemnity. Assignor hereby indemnifies and holds Assignee harmless
---------
from and against all claims, demands, losses, damages, expenses and costs
including, but not limited to, reasonable attorneys' fees and expenses actually
incurred, arising out of or in connection with Assignor's failure, prior to the
date of this Assignment, to observe, perform and discharge each and every one of
the covenants, obligations and liabilities of the lessor or landlord under the
Leases to he observed, performed or discharged on, or relating to, or accruing
with respect to the period prior the date of this Assignment. Assignee, jointly
and severally, hereby indemnifies and holds Assignor harmless from and against
all claims, demands, losses, damages, expenses and costs including, but not
limited to, reasonable attorneys' fees and expenses actually incurred, arising
out of or in connection with Assignee's failure, from and after the date of this
Assignment, to observe, perform and discharge each and every one of the
covenants, obligations and liabilities assumed by Assignee with respect to the
Leases and relating to, or accruing with respect to, the period from and after,
but not before, the date of this Assignment, including, without limitation, any
liability for any application of the Security Deposits by Assignee from and
after the date of this Assignment.
4. Governing Law. This instrument shall be governed by and construed
-------------
in accordance with the internal laws of the State of _________________, without
reference to the conflicts of laws or choice of law provisions thereof.
5. Binding Effect. This instrument shall be binding upon and shall
--------------
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, legal representatives, successors and assigns.
K-2
IN WITNESS WHEREOF, Assignor and Assignee has each caused this
Assignment to be executed and sealed by its duly authorized signatory as of the
day and year first above written.
ASSIGNOR:
By: __________________________
Name: ____________________
Title: ___________________
Attest: ________________________
Name: __________________
Title: _________________
[CORPORATE SEAL]
ASSIGNEE:
DUKE REALTY LIMITED PARTNERSHIP,
an Indiana limited partnership
By: Duke Realty Investments, Inc., an
Indiana corporation, as general partner
By: ________________________
Xxxxxxx X. Xxxx
Vice President Acquisitions
Attest: ________________________
Name: __________________
Title: _________________
[CORPORATE SEAL]
K-3
EXHIBIT A TO ASSIGNMENT AND ASSUMPTION OF LEASES AND
----------------------------------------------------
GUARANTIES
----------
[LEGAL DESCRIPTION OF PROPERTY]
EXHIBIT B TO ASSIGNMENT AND ASSUMPTION OF LEASES AND
----------------------------------------------------
GUARANTIES
----------
[LEASES]
EXHIBIT C TO ASSIGNMENT AND ASSUMPTION OF LEASES AND
----------------------------------------------------
GUARANTIES
----------
[GUARANTIES]
EXHIBIT D TO ASSIGNMENT AND ASSUMPTION OF LEASES AND
----------------------------------------------------
GUARANTIES
----------
[SECURITY DEPOSITS]
K-4
EXHIBIT L
---------
STATE OF ____________
COUNTY OF__________
CERTIFICATE AND AFFIDAVIT OF NON-FOREIGN STATUS
-----------------------------------------------
The undersigned, being duly sworn, hereby deposes, certifies and states on
oath as follows:
1. The undersigned is currently the _______________________ of
______________________________________, a(n)_______________ organized and
existing under the laws of the State of _______________ (the "Corporation"), and
that the address of the Corporation is _________________________________, Suite
______ _________________.
2. The Corporation is not a "non-resident alien" for purposes of United
States income taxation or otherwise a "foreign person," as defined in Section
1445 of the United States Internal Revenue Code of 1986 (as amended, the
"Code").
3. The Corporation's United States taxpayer identification number or, if
applicable, Social Security Number is 00-0000000.
4. The undersigned is making this Certificate and Affidavit pursuant to
the provisions of the Code in connection with the sale of the real property
described on Exhibit A, attached hereto and incorporated herein by reference, by
---------
the Corporation to Duke Realty Limited Partnership (the "Transferee"), which
sale constitutes the disposition by the Corporation/Partnership of a United
States real property interest, for the purposes of establishing that the
Transferee is not required to withhold tax pursuant to Section 1445 of the Code
in connection with such disposition.
5. The undersigned acknowledges that this Certificate and Affidavit may be
disclosed to the Internal Revenue Service by the Transferee, that this
Certificate and Affidavit is made under penalty of perjury, and that any false
statement made herein could be punished by fine, imprisonment or both.
6. Under penalty of perjury, I declare that I have examined the foregoing
Certificate and Affidavit and hereby certify that it is true, correct and
complete.
L-1
Certified, sworn to and subscribed before me
this _____ day of _________, 19__.
____________________ _____________________ (SEAL)
Notary Public
My Commission Expires:
_____________________
(NOTARIAL SEAL)
L-2
EXHIBIT M
---------
STATE OF __________
COUNTY OF ________
XXXX OF SALE
------------
THIS XXXX OF SALE is executed and delivered as of the ___ day of
_____________, 19___, by _____________________________________ a(n)
_______________________ (hereinafter referred to as "Seller"), and DUKE REALTY
LIMITED PARTNERSHIP, an Indiana limited partnership (hereinafter referred to as
"Purchaser").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, contemporaneously with the execution and delivery of this Xxxx of
Sale, Seller has sold and conveyed to Purchaser the improved real property (the
"Property") described on Exhibit A attached hereto and incorporated herein by
---------
reference; and
WHEREAS, in connection wit such conveyance of the Property, Seller has
agreed to sell to Purchaser and Purchaser has agreed to purchase from Seller all
right, title and interest of Seller in and to the personal property, if any,
owned by Seller and located on the Property (hereinafter referred to as the
"Personal Property");
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) in hand paid at or before the execution, sealing and delivery
hereof, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by Seller. Seller hereby agrees as follows:
1. Sale and Conveyance. Seller hereby sells, transfers and conveys unto
-------------------
Purchaser, its successors and assigns, without warranties, express or implied,
all right, tide and interest of Seller in and to the Personal Property.
2. Governing Law. This Xxxx of Sale shall be governed by and construed in
-------------
accordance with the internal laws of the State of ___________________, without
reference to the conflicts of laws or choice of law provisions thereof.
3. Binding Effect. This Xxxx of Sale shall be binding upon and shall inure
--------------
to the benefit of the parties hereto and their respective heirs, executors,
administrators legal representatives, successors and assigns.
M-1
IN WITNESS WHEREOF, Seller has caused this Xxxx of Sale to be executed and
sealed by its duly authorized signatory as of the day and year first above
written.
SELLER:
By: __________________________
Name: ____________________
Title: _____________________
Attest: ________________________
Name: ____________________
Title: _____________________
[CORPORATE SEAL]
M-2
EXHIBIT A TO XXXX OF SALE
-------------------------
[LEGAL DESCRIPTION OF PROPERTY]
X-0
XXXXXXX X
---------
XXXXX XX___________
XXXXXX OF_________
ASSIGNMENT AND ASSUMPTION OF
----------------------------
SURVIVING SERVICE CONTRACTS AND WARRANTIES
------------------------------------------
THIS ASSIGNMENT is made and entered into as of this ___ day of
___________, 19 , by and between ________________________________,
a(n)_______________________ (hereinafter referred to as "Assignor"), and DUKE
REALTY LIMITED PARTNERSHIP, an Indiana limited partnership (hereinafter referred
to as "Assignee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, contemporaneously with the execution and delivery hereof,
Assignor has sold and conveyed to Assignee all that tract or parcel of land more
particularly described in Exhibit A attached hereto and incorporated herein by
---------
reference, together with all improvements thereon and all rights, easements and
appurtenances thereto (hereinafter collectively referred to as the "Property");
and
WHEREAS, in connection with such conveyance of the Property, Assignor
and Assignee have agreed that Assignor shall transfer and assign to Assignee all
right, tide and interest of Assignor in and to all service, management,
equipment, labor, material, maintenance, repair, lease commission and other
contracts relating to the maintenance, repair or operation of the Property which
have not been terminated by Assignor as of the date hereof and continue in force
and effect (hereinafter collectively referred to as the "Surviving Service
Contracts"); and
WHEREAS, Assignor and Assignee have further agreed that Assignee shall
expressly assume all of the obligations of Assignor arising under the Surviving
Service Contracts from and after the date of this Assignment;
NOW, THEREFORE, for and in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each party hereto, Assignor and
Assignee hereby agree as follows:
N-1
1. Transfer and Assignment. Assignor hereby sells, transfers and
-----------------------
assigns to Assignee, its successors and assigns, all right, title and interest
of Assignor in, to and under the Surviving Service Contracts together with all
warranties and guaranties (collectively, the "Warranties") in favor of Assignor
on equipment and improvements on the Property (to the extent said Warranties are
assignable by Assignor), all of which are more particularly described on Exhibit
-------
B attached hereto and incorporated herein by reference. If any of the Warranties
-
are not assignable by Assignor, Assignor agrees to folly cooperate with
Assignee, but without cost or expense to Assignor, to enforce such Warranties
for the benefit of Assignee.
2. Assumption of Obligations. Assignee hereby assumes and agrees to
-------------------------
observe and perform all of the obligations and duties of Assignor under each of
the Surviving Service Contracts and the Warranties arising from and after, but
not before, the date of this Assignment.
3. Indemnity. Assignor hereby indemnifies and holds Assignee
---------
harmless from and against all claims, demands, losses, damages, expenses and
costs including, but not limited to, reasonable attorneys' fees and expenses
actually incurred, arising out of or in connection with Assignor's failure,
prior to the date hereof, to observe, perform and discharge each and every one
of the covenants, obligations and liabilities of the Assignor under the
Surviving Service Contracts and the Warranties to be observed, performed or
discharged with respect to the period prior to the date of this Assignment.
Assignee hereby indemnifies and holds Assignor harmless from and against all
claims, demands, losses, damages, expenses and costs including, but not limited
to, reasonable attorneys' fees and expenses actually incurred, arising out of or
in connection with Assignee's failure, from and after the delivery of this
Assignment, to observe, perform and discharge all covenants, obligations and
liabilities with respect to the period on and after, but not before, the date of
this Assignment.
4. Governing Law. This Assignment shall be governed by and construed
-------------
in accordance with the internal laws of the State of ________________ without
reference to the conflicts of laws or choice of law provisions thereof.
5. Binding Effect. This Assignment shall be binding upon and shall
--------------
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, legal representatives, successors and assigns.
N-2
IN WITNESS WHEREOF, Assignor and Assignee have each caused this
Assignment to be executed and sealed by its duly authorized signatory as of the
day and year first above written.
ASSIGNOR:
By: __________________________
Name: ____________________
Title: _____________________
Attest: ________________________
Name: ____________________
Title: _____________________
[CORPORATE SEAL]
ASSIGNEE:
DUKE REALTY LIMITED PARTNERSHIP,
an Indiana limited partnership
By: Duke Realty Investments, Inc., an
Indiana corporation, as general partner
By: ________________________
Xxxxxxx X. Xxxx
Vice President Acquisitions
Attest: ________________________
Name: _____________________
Title: _____________________
[CORPORATE SEAL]
N-3
EXHIBIT A TO ASSIGNMENT AND ASSUMPTION OF SURVIVING SERVICE
-----------------------------------------------------------
CONTRACTS AND WARRANTIES
------------------------
[LEGAL DESCRIPTION OF PROPERTY]
N-4
EXHIBIT B TO ASSIGNMENT AND ASSUMPTION OF SURVIVING SERVICE
-----------------------------------------------------------
CONTRACTS AND WARRANTIES
------------------------
[LIST OF WARRANTIES AND SURVIVING SERVICE CONTRACTS, INCLUDING
--------------
LEASE COMMISSION AGREEMENTS]
N-5
EXHIBIT O
---------
UNCOMPLETED TENANT IMPROVEMENTS
[TO BE ADDED]
O-1
Prior Deed Reference: Recorded in Deed Book 465, Pg. 235, Group No. 2049A
Xxxxx County, Kentucky Clerk's Records
SPECIAL WARRANTY DEED
---------------------
KNOW ALL MEN BY THESE PRESENTS:
That PRESTOLITE ELECTRIC INCORPORATED (f/k/a PEI 1991 Acquisition, Inc.), a
Delaware corporation ("Grantor"), whose mailing address is 0000 Xxxxxx Xx.,
Xxxxxxxx, Xxxxxxxx 00000, for and in consideration of Three Million Two Hundred
Fifty Thousand Dollars ($3,250,000.00), to it paid by the Grantee herein, the
receipt of which is acknowledged, does bargain, sell, and convey to DUKE REALTY
LIMITED PARTNERSHIP, an Indiana limited partnership ("Grantee"), whose mailing
address is 0000 Xxxxxxxx Xxxxxxxx, Xxxxx 0000, Xxxxxxxxxxxx, Xxxxxxx 00000
certain real estate and all improvements located thereon in Florence, Xxxxx
County, Kentucky, as more specifically described in the attached Exhibit A,
---------
subject to those matters more specifically described on Exhibit B, attached
hereto and incorporated herein by reference. ---------
Present Street Address: 0000 Xxxxxx Xx., Xxxxxxxx, Xxxxxxxx 00000
Being the same premises conveyed to the Grantor herein by deed recorded in Deed
Book 465, Pg. 235 of the Xxxxx County, Kentucky Clerk's Records.
Together with all the PRIVILEGES AND APPURTENANCES to the same belonging. TO
HAVE AND TO HOLD the same to the said DUKE REALTY LIMITED PARTNERSHIP, the
Grantor hereby covenanting with the Grantee, that title so conveyed is clear,
free and unencumbered, and that Grantor specially warrants and defends such
title against the acts of Grantor and those claiming by, through or under
Grantor, and not otherwise.
IN WITNESS WHEREOF, the said Grantor, having resolved by consent resolution of
its Board of Directors to so convey this real property and further authorized
Xxxxxxx X. Xxxxxxxxx, Senior Vice President and Xxxxxx X. Xxxxxxx, Vice
President to execute this deed and any other documents necessary to effect this
transfer hereunto set their hand as of this 28th day of June, 1996.
PRESTOLITE ELECTRIC INCORPORATED.
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Xxxxxxx X. Xxxxxxxxx
Senior Vice President
By: /s/ Xxxxxx X. Xxxxxxx
------------------------
Xxxxxx X. Xxxxxxx
Vice President
STATE OF MICHIGAN )
)SS:
COUNTY OF WASHTENAW )
Before me, a Notary Public in and for said County and State, personally appeared
Xxxxxxx X. Xxxxxxxxx, by me known to be the Senior Vice President of Prestolite
Electric Incorporated, a Delaware corporation, who acknowledged the execution of
the foregoing "Special Warranty Deed" on behalf of said corporation.
The foregoing instrument was acknowledged before me this 28th day of June, 1996.
/s/ Xxxxx X. Conybeure Jr.
_______________________________
Notary Public
Xxxxx X. Conybeure Jr.
_______________________________
Printed Signature
Commission Expires: 8/4/97
------------------------------
[NOTARY STAMP]
My County of Residence: Washtenaw County, Michigan
--------------------------
STATE OF OHIO )
)SS:
COUNTY OF XXXXXXXX )
Before me, a Notary Public in and for said County and State, personally appeared
Xxxxxx X. Xxxxxxx, by me known to be the Vice President of Prestolite Electric
Incorporated, a Delaware corporation, who acknowledged the execution of the
foregoing "Special Warranty Deed" on behalf of said corporation.
The foregoing instrument was acknowledged before me this 28th day of June, 1996.
/s/ Xxxx X. Xxxxxxx
_______________________________
Notary Public
_______________________________
Printed Signature
Commission Expires: _______________________
My County of Residence: ___________________
[NOTARY SEAL]
CERTIFICATE OF CONSIDERATION
Grantor and Grantee both certify, under oath pursuant to KRS Chapter 382, that
the consideration reflected in this deed is the true, correct and full
consideration paid for the real property herein conveyed. We further certify and
understand that falsification of the stated consideration or rate price of real
property is a class D felony, subject to one to five years imprisonment and
fines up to Ten Thousand Dollars ($10,000.00). Grantee joins in this deed for
the sole purpose of making this certificate about the consideration.
Sworn to on this 28th day of June, 1996.
Grantor's mailing address: 0000 Xxxxxx Xx., Xxxxxxxx, Xxxxxxxx 00000
Grantee's mailing address: 0000 Xxxxxxxx Xxxxxxxx, Xxxxx 0000, Xxxxxxxxxxxx,
XX 00000
GRANTOR: GRANTEE:
PRESTOLITE ELECTRIC INCORPORATED, DUKE REALTY LIMITED PARTNERSHIP,
a Delaware corporation an Indiana limited partnership
By: /s/ Xxxxxxx X. Xxxxxxxxx By: Duke Realty Investments, Inc.,
------------------------ its General Partner
Xxxxxxx X. Xxxxxxxxx
Senior Vice President
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Xxxxxx X. Xxxxxxx
Vice President
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Xxxxxx X. Xxxxxxx
Vice President
STATE OF MICHIGAN )
)SS:
COUNTY OF WASHTENAW)
Before me, a Notary Public in and for said County and State, personally appeared
Xxxxxxx X. Xxxxxxxxx, by me known to be the Senior Vice President of Prestolite
Electric Incorporated, a Delaware corporation, who acknowledged the execution of
the foregoing "Certificate of Consideration" on behalf of said corporation.
The foregoing instrument was acknowledged before me this 28th day of June, 1996.
/s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------
Notary Public
Xxxxx X. Xxxxxxxxx, Xx.
---------------------------
Printed Signature
Commission Expires: 8/4/97
---------------------------- [Notary Seal appears here]
My County of Residence: Washtown County, Michigan
-------------------------
STATE OF OHIO )
)SS:
COUNTY OF XXXXXXXX)
Before me, a Notary Public in and for said County and State, personally appeared
Xxxxxx X. Xxxxxxx, by me known to be the Vice President of Prestolite Electric
Incorporated, a Delaware corporation, who acknowledged the execution of the
foregoing "Certificate of Consideration" on behalf of said corporation.
The foregoing instrument was acknowledged before me this 28th day of June, 1996.
/s/ Xxxx X. Xxxxxxx
-------------------
Notary Public
___________________
Printed Signature
Commission Expires: _______________________ [NOTARY SEAL APPEARS
HERE]
My County of Residence: ___________________
STATE OF OHIO )
)SS:
COUNTY OF XXXXXXXX)
Before me, a Notary Public in and for said County and State, personally appeared
Xxxxxx X. Xxxxxxx, by me known to be the Vice President of Duke Realty
Investments, Inc., an Indiana corporation, the general partner of Duke Realty
Limited Partnership, an Indiana limited partnership, who acknowledged the
execution of the foregoing "Certificate of Consideration" on behalf of said
corporation.
WITNESS my hand and Notarial Seal this 28th day of June, 1996.
/s/ Xxxx X. Xxxxxxx
-------------------
Notary Public
__________________
Printed Signature
[NOTARY SEAL APPEARS
HERE]
Commission Expires: _______________________
My County of Residence: ___________________
This instrument was prepared by: /s/ Xxx X. Xxxxxxx
-------------------------------
Xxx X. Xxxxxxx, Attorney at Law
Duke Realty Investments, Inc.
0000 Xxxxxxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
EXHIBIT A
---------
GROUP No. 2049 A
PIDN N. 73-35 B
Situated in the city of Xxxxxxxx, Xxxxx County, Kentucky and more particularly
described follows:
Beginning at a point in the center line of Empire Drive at Highway Station
18+13.0; said point being a common corner to Grantor and Xxxxxx Education
Publishing Company; said point shall hereinafter be referred to as Reference
Point "A"; thence along the center line of Empire Drive on a curve to the left
(radius equals 851.25 feet) an arc distance of 18l.8 feet to a point of tangency
(formerly called (radius equals 818.60 feet) an arc distance 174.33 feet) ;
thence S. 22 deg. 26' 35" S. along the center line of Empire Drive a distance of
176.04 feet to a point in the northern right of way line of the lead track to
serve Globe Union and others (formerly called S. 22 deg. 26' 45" E. a distance
of 166.44 feet) said point shall hereinafter be referred to as Reference Point
"B"; thence S. 89 deg. 14' 45" W. along said northern right of way line a
distance of 185.15 feet to a point; (formerly called S. 89 deg. 14' 45" W. a
distance of 164.42 feet); thence S. 45 deg. 14' 45" W. along said northern right
of way line a distance of 1105.76 feet to a common cor to Grantor and Globe
Union, Inc.; (formerly called S. 45 deg. 14' 45" W. a distance of 1126.09 feet;
said point shall hereinafter be referred to as Reference Point "C"; thence 44
deg. 45' 14" W. along the dividing line between Grantor and Globe Union, Inc, a
distance of 336.10 feet to a common corner to Grantor, Xxxxxx Educational
Publishing Company and Globe Union, Inc.; said point shall hereinafter by
referred to as Reference Point "D"; thence N. 35 deg. 45' 15" E. along the
dividing line between Grantor and Xxxxxx Education Publishing Company, a
distance of 786.12 feet to a common corner to Grantor and Xxxxxx Educational
Publishing Company; thence continuing along said dividing line N. 69 deg. O5 30"
E. a distance of 673.00 feet to the place of beginning.
Excluding from the above described tract is all that land which lies 25 feet to
the west right side of the lines connecting aforementioned Reference Point "A"
and Reference Point "B".
Said parcel contains 11.638 acres more or less.
LESS AND EXCEPT that portion of the above real estate conveyed by City of
Florence, Kentucky and Prestolite Electric Incorporated to the Commonwealth of
Kentucky by deed dated October 27, 1987 and recorded January 6, 1988 in Highway
Deed Book 15, page 51 of the Bo County, Kentucky Clerk's Records.
The foregoing real estate is also described as follows, based upon a survey
dated August 23, 1991 by Xxxxxx X. Xxxxxxx, KY. PLS NO. 2761, of Xxxxxx X. Xxxxx
Company:
Located in the City of Xxxxxxxx, Xxxxx County, Kentucky, described as follows:
(Continued)
Commencing at the intersection of the westerly line of Empire Drive with the
northwestern line of Bluegrass Drive, thence S. 45 deg. 14' 45" W. along the
northwesterly line of Bluegrass Drive, 1019.12 feet, thence N. 44 deg. 45' 15"
W. 598.00 feet to the True Place of Beginning; thence N, 44 deg. 45' 15" W.,
336.10 feet; thence N, 35 deg. 45' 15" E. 786.69 feet; thence N. 69 deg. O5' 30"
E., 645.77 feet to the westerly line of Empire Drive; thence southwardly along
the westerly line of Empire Drive, on a curve to the le for 182.46 feet, said
curve having a radius of 876.25 feet, and a long chord bearing S. deg. 28' 40"
E., 182.13 feet; thence continuing with said westerly line, S. 22 deg. 26' 35"
E., 166.10 feet; thence leaving said westerly line of Empire Drive, S. 89 deg.
14' W., 157.34 feet; thence S. 45 deg. 14' 45" W., 1104.04 feet to the true
place of beginning, containing 11.6177 acres.
Being the same property conveyed to the Grantor by a deed recorded in Deed Book
465, Pa 235 of the Xxxxx County, Kentucky records at Burlington.
EXHIBIT B
---------
1. Right of way and easement for general utility purposes as set forth in a
grant from Northern Kentucky Industrial Foundation, Inc., to The Union
Light, Heat and Power Company dated February 7, 1964 in Miscellaneous Book
28, page 396 of the Xxxxx County, Kentucky Clerk's Records, and as shown on
the survey prepared by JMA Consultants, Inc. Job No. 948, dated February
26, 1996.
2. Right of way and easement for general utility purposes as set forth in a
grant from Northern Kentucky Industrial Foundation, Inc. to The Union
Light, Heat and Power Company dated October 10, 1967 and recorded October
25, 1967 in Miscellaneous Book 43, page 34 of the Xxxxx County, Kentucky
Clerk's Records and as shown on the survey prepared by JMA Consultants,
Inc. Job No. 948, dated February 26, 1996.
3. Right of way and easement for general utility purposes as set forth in a
grant from American Can Company to The Union Light, Heat and Power Company
dated January 3, 1974 and recorded February 16, 1974 in Easement Book 1,
page 395 of the Xxxxx County, Kentucky Clerk's Records and as shown on the
survey prepared by JMA Consultants, Inc. Job No. 948, dated February 26,
1996.
4. Right of way and easement for general utility purposes as set forth in a
grant from City of Florence, Kentucky, to The Union Light, Heat and Power
Company dated October 13, 1981 and recorded November 12, 1981 in Easement
Book 9, page 121 of the Xxxxx County, Kentucky Clerk's Records and as shown
on the survey prepared by JMA Consultants, Inc. Job No. 948, dated February
26, 1996.
5. Easements as set forth in the deed from City of Florence, Kentucky to Eltra
Corporation dated June 1, 1979, recorded June 1, 1979 in Deed Book 260,
page 247 and in the deed from Eltra Corporation to City of Florence,
Kentucky dated as of January 29, 1980, recorded January 29, 1980 in Deed
Book 271, page 205; said easements depicted in Deed Book 202, at page 449
and Plat Book 8, page 47, of the Xxxxx County, Kentucky Clerk's Records and
as shown on the survey prepared by JMA Consultants, Inc. Job No. 948, dated
February 26, 1996.
6. Minimum Building Lines noted of the survey by JMA & Associates, dated
October 4, 1994 and updated February 26, 1996.
7. The Xxxxx County 1995 General Tax Duplicate, Xxxx no. 72361, PIDN NO> 73-
35B, Valuation: $4,000,000.00.
Taxes: $ 37,136.00, Paid.
Taxes and assessments for the year 1996 and thereafter are a lien, not yet
due and payable.
DISCHARGE OF MORTGAGE
---------------------
Know all men by these presents that the undersigned, COMERICA BANK, does
hereby release and discharge the real estate described on Exhibit "A" attached
hereto from the operation of that certain mortgage from Prestolite Electric
Incorporated to Comerica Bank, executed October 25, 1994, filed for record
October 28, 1994 in Mortgage Book 1043, page 266 of the Xxxxx County, Kentucky
Clerk's Records.
In witness whereof the said COMERICA BANK, by Xxxxxx X. Xxxxxxxxx, its Vice
President, being thereunto duly authorized, has executed this instrument as of
the ________ day of ____________________, 1996. to be effective June 28,
1996.
Witnesses: COMERICA BANK
/s/ Xxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------- -----------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxx X. Xxxxxxxxx
---------------------- Its: Vice President
State of Michigan
County of Xxxxx (S)(S)
Be it remembered, that on this 3rd day of June, 1996, before me, the
subscribed, a Notary Public in and for said County and State, personally
appeared and proved to me to be Xxxxxx X. Xxxxxxxxx of COMERICA BANK, the
corporation which executed the foregoing instrument, who acknowledged that he
did sign the foregoing instrument as such Vice President on behalf of said
corporation and by authority of its Board of Directors; and that said instrument
is his free act and deed individually and as such Vice President and the free
and corporate act and deed of said COMERICA BANK.
In testimony whereof, I hereunto set my hand and affix my seal on the day
and year last aforesaid.
/s/ Xxxxxxx
[NOTARY STAMP] ------------------------------
Notary Public
My Commission Expires: 8-27-99
This instrument prepared by: /s/ Xxxxxxxx X. Xxxxxxx (signature)
-----------------------
Xxxxxxxx X. Xxxxxxx, Xx., Esq. (typed name)
Xxxxxx, Xxxxxxx & Xxxxxxx LLP (Company)
000 Xxxxxxxxxxx Xxxxxx (Xxxxxxx)
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
