EXHIBIT 10.43
LEASE AGREEMENT
This Lease Agreement, made and entered into as of the 18th day of
March, 1999, by and between Xxxxxxx Properties, LLC, hereinafter called
ALandlord@, and KAT, Inc., an Indiana corporation, hereinafter called ATenant@.
ARTICLE 1
REPRESENTATIONS OF TENANT
Tenant makes the following representations and warranties as of the
execution date for the benefit of and reliance on by Landlord:
A. Tenant is a corporation duly organized and validly existing in good
standing under the laws of the State of Indiana and is authorized to transact
business in the state of Indiana.
B. The execution, delivery and performance of this Lease are within
the corporate powers of Tenant, have been duly authorized, and are not in
contravention of law or the terms of the Tenant=s Articles of Incorporation or
Bylaws, or any undertaking to which Tenant is a party or by which it is bound.
C. This Lease is a valid and binding obligation of Tenant in
accordance with its terms.
D. The Tenant intends to use and occupy the Property in its
over-the-road trucking at all times during the Lease Term and does not know of
any reason why the Property will not be so used by it in the absence of
supervening circumstances not now anticipated by it or beyond its control
except as provided herein. Tenant will not use, or suffer or permit any person
to use, the Property or any part thereof for any purpose in violation of the
Laws of the United States or of the State of Indiana, or of the ordinances or
rules of any governing power which shall have the right to make laws, rules, or
regulations, or for any purpose not authorized.
ARTICLE 2
LANDLORD=S COVENANTS OF WARRANTY
Landlord makes the following covenants and warrants as of the
execution date for the benefit of and reliance on by Tenant:
A. There are no existing or unexpired leases, conveyances,
agreements, options, mortgages or liens of any kind or description affecting
Landlord=s interest in the Property;
B. Landlord has full right and power to enter this Lease;
C. There are no restrictions or stipulations or planning or zoning
ordinances, laws, regulations, or restrictions now in effect with respect to
the Property that would interfere with or restrict Tenant=s intended use of the
Property; and
D. At all times prior to expiration or other termination of this Lease
when Tenant is not in default hereunder, its peaceable and quiet possession and
enjoyment of the Property shall not be disturbed.
ARTICLE 3
LEASE OF PREMISES AND LEASE PAYMENTS
Section 3.1. Lease of Premises. Landlord, of and in consideration of the rents,
covenants and agreements hereinafter set forth, does hereby lease to Tenant,
and Tenant does hereby take and rent from the Landlord, the real property
located at 000 Xxxx, 0000 Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000, and more
particularly described in Exhibit AA@, attached hereto and made a part hereof,
to have and to hold the same, together with the buildings and other
improvements now or hereafter located thereon and all rights, privileges,
powers, easements, tenements, and appurtenances to the same belonging or in
anywise appertaining thereto, (all the aforesaid being herein referred to
collectively as the AProperty@ or ALeased Premises@) for and during the term
hereinafter provided.
Section 3.2. Use of Premises. The Leased Premises shall be used and occupied by
Tenant, subject to the conditions herein contained, in connection with its
over-the-road trucking operations. In no event shall the Leased Premises be
used or occupied by the Tenant in any manner contrary to law, zoning
regulations, or recorded restrictions, if any. Tenant shall not leave the
Leased Premises vacant or unoccupied at any time during the Term of this Lease
without the prior written permission of the Landlord.
Section 3.3. Lease Term. The term of this Lease shall commence on March 12,
1999, and end on April 30, 2014, both dates inclusive unless earlier terminated
in accordance herewith (the ATerm@). Either party may, however, terminate this
Lease upon six (6) months written notice to the other after March 1, 2001;
provided that, in the event of such termination by Tenant, Landlord shall be
entitled to the continuation of the payment of Rents as if such termination had
occurred effective on the third (3rd) anniversary of the date of this Lease
Agreement. If by mutual consent of the parties, Tenant takes possession of the
Leased Premises after the commencement date, then during such post term period
Tenant shall on the first day of such possession pay the rent as herein
established on a pro-rata per diem basis and such occupancy shall be under all
the terms and conditions of this Lease, but such post term occupancy shall not
affect the lease Term as herein otherwise established. Subject to the
availability of the Leased Premises, Tenant shall have the right prior to the
commencement date to enter upon the Leased Premises at reasonable times for the
purpose of preparing the Leased Premises for their intended use and inspecting
and testing the same.
ARTICLE 4
RENTAL
Section 4.1. Base Annual Rental. Tenant shall, without deduction, abatement or
set off of any nature whatsoever, pay to Landlord as fixed rent (hereinafter
referred to as the ABase Annual Rental@) for the Leased Premises the sum of One
Hundred Sixty-Six Thousand Dollars ($166,000.00) per annum payable in equal
monthly installments of Thirteen Thousand Eight Hundred Thirty-Three and 33/100
Dollars ($13,833.33) on the first of each month during the first year of the
Term.
Said rental payments shall be made without demand on the first day of
each and every month throughout the Term, if exercised, of this Lease. Rent for
any partial month of the term of this Lease shall be prorated. The rent shall
be payable at 000 Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx 00000 , or at such other
place as Landlord may from time to time designate in writing.
Section 4.2. CPI Adjustments. The Base Annual Rent paid by Tenant shall be
adjusted upward, but never downward, effective as of March 1, 2000, and on the
same day of each year thereafter during the Term to reflect the increase, if
any, in the Consumer Price index ( All Cities, All Urban Consumers, All Items,
1982-1984=100) (subsequently referred to as ACPI-U@) or its successor price
index , as published by the United States Bureau of Labor Statistics. This
adjustment shall computed by adding to the Base Annual Rent an amount
determined as follows: i) the CPI-U index number for the second month preceding
March of 1999 (AInitial Index Number@) shall be subtracted from the CPI-U index
number for the second month immediately preceding the effective date of the
increase; ii) the resulting amount shall be divided by the Initial Index Number
and reduced to a decimal equivalent; iii) the resulting decimal shall be
multiplied by the Base Annual Rent. The Base Annual Rent, as adjusted, shall be
paid in equal monthly installments as provided in Paragraph 4.1, above.
Section 4.3. Late Payment Charges. Rent is due on the first day of
the month and shall be delinquent if not paid by the fifth calendar day of
the month. A five percent (5%) late charge shall be added to the rent due
for each delinquent rent payment.
ARTICLE 5
OBLIGATIONS OF TENANT
Section 5.1. Taxes. Tenant shall pay as additional rent, any and all amounts
expended by Landlord for real estate taxes, assessments, and charges, as well
as all sewer charges levied, assessed or payable with respect to the land,
buildings and improvements comprising the Leased Premises. Such additional rent
by reason of said taxes and sewer charges shall be payable by Tenant upon
presentation to Tenant of copies of tax and sewer charges.
Section 5.2. Utilities. Tenant shall pay for all utility services to the Leased
Premises including, but not limited to, electricity service for lighting,
business machines and business equipment, and utility service to provide
heating, ventilating and air conditioning. Tenant shall supply all replacement
light bulbs. If any such utility service shall not be separately metered to
Tenant, Tenant shall pay its proportionate part of such utility service, based
upon square footage of any buildings occupied by Tenant and a pro rata portion
of common areas, upon presentation of a xxxx therefor by the Landlord, and the
amount thereof shall be deemed additional rent hereunder. Landlord represents
and warrants that all utilities, including but not limited to, water, gas,
sewer, telephone and electricity are provided to the Leased Premises in the
quantities required by Tenant without any additional action or payment by
Tenant.
ARTICLE 6
MAINTENANCE AND ADDITIONS
Section 6.1. Maintenance and Repairs. Landlord shall at its cost and expense,
except as provided below, keep in good repair the foundation, structural
members, exterior of the outside walls, roof, gutters and down spouts of the
buildings comprising a part of the Leased Premises, and shall also at its cost
and expense maintain and keep in good repair the outside lighting, and all
mechanical equipment serving the Leased Premises (including maintaining,
keeping in repair and replacing, when necessary, all HVAC and hot water heating
equipment).
Tenant shall be responsible for all interior cleaning and all interior
and exterior window washing. Tenant covenants and agrees not to do or suffer
any waste to the Leased Premises and at its cost and expense to maintain and
keep in good repair all parts of the Leased Premises even though not
specifically enumerated above, including but not limited to, all of the
interior of the Leased Premises, all glass and exterior doors, all landscaping,
and the parking lot (including sweeping, snow removal and striping)
If Tenant does not make the necessary repairs, replacements, or
maintenance as herein provided, Landlord at its option, and after giving Tenant
thirty (30) days written notice, shall have the right to do the same and all
amounts so expended by the Landlord shall be deemed additional rent, to be due
and owing at the time the next rental payment is due following the date that
such repairs, replacements, or maintenance have been done by the Landlord.
Section 6.2. Additions - Mechanic=s Liens. Any alteration, addition or
improvement made by Tenant and any fixtures installed by Tenant (including
wall-to-wall carpeting and wall paneling) shall become the property of Landlord
upon the expiration or other sooner termination of this Lease unless removed
pursuant to Section 11.1 of this Lease. No structural alterations shall be made
without first obtaining the written consent and approval of Landlord as to the
proposed plans and specifications, which consent and approval Landlord agrees
will not be unreasonably withheld and further provided that any alterations or
improvements shall be done expeditiously and in good and workmanlike manner. If
Landlord refuses to consent to such alterations, and the failure to make an
alteration would impact or impair Tenant=s use of the Leased Premises in any
manner, Tenant may terminate the Lease without further liability.
Tenant shall not permit any mechanic=s lien to be filed against the
fee of the Leased Premises or against the Tenant=s leasehold interest in the
Leased Premises by reason of work, labor, services or materials supplied or
claimed to have been supplied to the Tenant or anyone holding the Leased
Premises through or under the Tenant, whether prior to, during, or subsequent
to the Term hereof. If any such mechanic=s lien shall at any time be filed
against the Leased Premises and Tenant shall fail to remove same within thirty
(30) days thereafter, it shall constitute a default under the provisions of
Article 12 of this Lease.
ARTICLE 7
DAMAGE TO PREMISES
Section 7.1. Destruction to Premises. If the Leased Premises are at any time
during the Term of this Lease damaged or destroyed in whole or in part by fire
or any other peril so as to render the Leased Premises untenable for sixty (60)
days, the Landlord or Tenant may, at the option of either, terminate this
Lease. Notwithstanding anything herein to the contrary, if the amount of
insurance proceeds collected by Landlord as a result of such whole or partial
damage of destruction are not sufficient to complete any restoration or
rebuilding of the Leased Premises, Landlord may, at its option, terminate this
Lease. Notice of termination by either party to this Lease shall be served upon
the other party pursuant to Section 14.1 hereof.
Landlord shall notify Tenant in writing of its opinion as to the
number of days the Leased Premises will be wholly untenable within ten (10)
days after such damage or destruction. If the Tenant does not agree with the
opinion of the Landlord as to the number of days the Leased Premises will be
wholly untenable, Tenant may demand within three (3) days after such
notification that the fact be determined by arbitration. Landlord and Tenant
shall each choose an arbitrator within five (5) days after such demand by
Tenant. The two arbitrators so chosen, before entering on the discharge of
their duties, shall elect a third, and the decision of any two of such
arbitrators shall be conclusive and binding upon both parties hereto.
If it is determined by arbitration or by agreement between the
Landlord and the Tenant that the Leased Premises are not wholly untenable for
sixty (60) days, then the Landlord shall repair or restore the Leased Premises
to substantially the same condition as existed prior to such damage or
destruction, at Landlord=s own expense, with all reasonable speed and
promptness, and in such case as just and proportionate part of the rental shall
be abated until the Leased Premises have been repaired or restored. In
determining what constitutes reasonable speed and promptness, consideration
shall be given to delays caused by strike, adjustment of insurance, and other
causes beyond the Landlord=s control, and this Lease shall not be terminable by
Tenant if the Leased Premises are not made tenable sixty (60) days after such
damage or destructions provided Landlord has been repairing or restoring, and
continues to repair or restore, the Leased Premises with such reasonable speed
and promptness. If neither party so elects to terminate the Lease, then
Landlord will be obligated to repair and reconstruct the Leased Premises within
the time and in the manner as stated above. If Landlord does not repair and
replace the Leased Premises within one hundred eighty (180) days of the
casualty for any reason, notwithstanding anything to the contrary, Tenant may
terminate this Lease without further liability.
ARTICLE 8
INDEMNIFICATION AND RELEASE
Section 8.1. Indemnification. Except for claims arising out of acts or
omissions caused by the intentional, reckless or negligent acts or omissions of
Landlord or its representatives, employees or agents, Tenant shall indemnify
and hold Landlord harmless against all claims, demands, actions, causes of
actions, settlements, expenses and any other liabilities, including reasonable
attorneys= fees, arising from or related to (a) failure of Tenant to perform
any covenant, promise or term to be performed by Tenant under this Lease; (b)
any accident, injury or damage which shall happen on or about the Leased
Premises during the Term caused in whole or in part by Tenant=s intentional,
reckless or negligent act or omission or resulting from the condition,
maintenance or operation by Tenant of the Leased Premises; (c) failure to
comply with the valid and enforceable requirements of any government authority
for which Tenant can be held liable and for which Landlord is not responsible
under this Lease; (d) any mechanic=s lien or security agreement filed against
the Leased Premises or any equipment or material therein; and (e) any
intentional, reckless or negligent act or omission of Tenant or its
representatives, employees, or agents. Except for claims arising out of acts or
omissions caused by the intentional, reckless or negligent acts or omissions of
Tenant or its representatives, employees or agents, Landlord shall indemnify
and hold Tenant harmless against all claims, demands, actions, causes of
action, settlements, expenses and any other liabilities, including reasonable
attorneys= fees arising from or related to (a) failure of Landlord to perform
any covenant, promise or term to be performed by Landlord under this Lease; (b)
failure to comply with the valid and enforceable requirements of any
governmental authority for which Landlord is liable under the Lease; and (c)
any intentional, reckless or negligent act or omission of Landlord or its
representatives, employees or agents.
Section 8.2. Mutual Release. Notwithstanding anything herein to the contrary,
Landlord and Tenant and all parties claiming under them hereby mutually release
and discharge the other from all claims and liabilities arising from or caused
by any hazard covered by insurance on the Leased Premises, or covered by
insurance in connection with property on or activities conducted at the
building or Leased Premises, regardless of the cause of the damage or loss.
This release shall apply only to the extent that such loss or damage is covered
by insurance and only so long as the applicable insurance policies contain a
clause to the effect that this release shall not affect the right of the
insured to recover under such policies.
ARTICLE 9
CONDEMNATION, ACCESS, USAGE
Section 9.1. Condemnation. (a) If the entire Leased Premises ( or so much
thereof so as to leave the remaining portion unfit for use by Tenant in its
sole discretion) shall be taken for any public or any quasi-public use under
any statute or by right of eminent domain, or by purchase under threat of
condemnation, then the Lease shall automatically terminate as of the date that
Leased Premises shall be so taken.
(b) If any part of the Leased Premises shall be so taken and this
Lease shall not be terminated under the provisions of subparagraph (a) above,
then Landlord or Tenant shall have the option to terminate this Lease upon
thirty (30) days notice to the other if continued operation of the remaining
Leased Premises is, in either=s opinion, no longer economical or feasible.
(c) In any event, all compensation awarded or paid upon such total or
partial taking shall belong to and be the property of the Landlord (or Tenant
if it has exercised the option described in Section 3.4 above and the parties
later actually close on the sale) without any participation by the Tenant
unless any structures, improvements or other property constructed by Tenant is
taken, in which case Tenant shall be entitled to that portion of the
compensation attributable to such structures, improvements or property;
provided, however, that nothing contained herein shall be construed to preclude
Tenant from prosecuting any claim directly against the condemning authority in
such condemnation proceeding for depreciation of, damage to, or the value or
cost of removal of trade fixtures, furniture, and other personal property
belonging to Tenant; provided, however, that no such claim shall diminish or
otherwise adversely affect Landlord=s award.
Section 9.2. Access. Landlord, and its duly authorized agents, employees and
contractors shall have access to the Leased Premises at all reasonable times
for the purpose of inspecting the same, or for exhibiting the same for sale,
lease or financing during the last year of the Term.
Section 9.3. Usage. Tenant shall take reasonable efforts to minimize any noise,
smoke or odor escaping from the Leased Premises, and shall endeavor to occupy
the same in such manner so as not to constitute a public or private nuisance.
No signs, fixture, advertisement or notice shall be displayed, inscribed,
painted or affixed by Tenant on any part of the outside of any building
comprising a part of the Leased Premises without the prior written consent of
Landlord.
ARTICLE 10
ASSIGNMENT
Section 10.1. Tenant. Tenant may assign or sublet the Leased Premises or any
part thereof subject to prior written consent of Landlord of said subletting or
assignment, which consent shall not be unreasonably withheld, but such
assignment or subletting shall not release the Tenant from the further
performance by the Tenant of the covenants in this Lease unless Landlord
expressly releases Tenant in writing. In any event, Tenant shall remain
primarily liable on this Lease for the entire Term thereof and shall in no wise
be released from the full and complete performance of all the terms,
conditions, covenants and agreements herein contained unless Landlord expressly
releases Tenant in writing.
Section 10.2. Landlord. The term ALandlord@ as used in this Lease means only
the owner for the time being in fee of the Leased Premises, or the owner of the
leasehold estate created by an underlying lease, or the mortgagee of the fee or
of such underlying lease in possession for the time being of the Leased
Premises, so that in the event of any sale of the Leased Premises or of any
transfer or assignment or other conveyance of such underlying lease and the
leasehold estate thereby created, the seller, transferor, or assignor shall be
entirely relieved of all further obligations of the Landlord herein. It shall
be deemed without further agreement between the parties or their successors in
interest, or between the parties and any such purchaser, transferee, or
assignee, that such purchaser, transferee, or assignee has agreed to carry out
all obligations of the Landlord hereunder. Tenant shall not be released from
liability under this lease unless their successors, assigns or transferees, or
personal representatives agree to be fully liable under this lease.
Section 10.3. Permitted Subleases and Assignments. Notwithstanding the
provisions of Section 10.1 or any other Section of this Lease, Tenant may
sublet any or all of the Leased Premises to any affiliate of Tenant without
Landlord=s consent or other restriction. Tenant shall remain primarily liable
under this Lease notwithstanding any subletting authorized by this Section.
ARTICLE 11
EXPIRATION
Section 11.1 Expiration. At the expiration of the Term, Tenant shall surrender
the Leased Premises in as good condition as they were at the beginning of the
term reasonable wear and tear excepted and subject to any improvement or
additions constructed by Tenant. Notwithstanding any provision of law or any
judicial decision to the contrary, no notice shall be required to terminate by
limitation the Term of this Lease as herein provided, and the Term of this
Lease shall expire on the termination date herein mentioned without notice
being required from either party. In the event that Tenant or any party holding
under Tenant shall hold over the Leased Premises beyond the expiration of the
Term of this Lease, whether by limitation or forfeiture, Tenant or such other
party shall pay one hundred twenty (120) percent of the rent hereunder during
such hold over period; provided, however, that if Tenant or such other party
shall remain in possession of the Leased Premises beyond the expiration of the
Term of this Lease with the express consent of the Landlord, then such
possession shall be as a month-to-month tenancy at the same rent as the last
month of the Term and the provisions of this Lease other than those in regard
to the term hereof shall be applicable. At the time of termination of this
Lease, or any extension thereof, if Tenant is not in default on any obligation
or covenant under this Lease, Tenant may remove its office supplies, office
furniture, fixtures, equipment, and all other personal property from the Leased
Premises, and shall promptly repair any damage caused by such removal, but all
items shall be removed and all repairs completed on or before the last day of
said Term or extension thereof. In any event, the obligation of Tenant to
repair the Leased Premises and pay all amounts owing to Landlord shall survive
the termination of this Lease.
ARTICLE 12
DEFAULT
Section 12.1. Events of Default. The occurrence of any of the following
events shall constitute an AEvent of Default:@
A. Failure by Tenant to pay the lease payments in the amounts and at
the times provided in this Lease for a period of ten (10) days after written
notice specifying such failure and requesting that it be remedied, given to
Tenant by Landlord.
B. Any material breach by Tenant of any representation, warranty, or
covenant made in this Lease or failure by Tenant to perform any obligation or
observe any covenant or condition on its part to be performed or observed
pursuant to this Lease for a period of thirty (30) days after written notice
specifying such failure and requesting that it be remedied, given to Tenant by
Landlord; provided, however, that if said Default shall be such that it cannot
be corrected within such period, it shall not constitute an Event of Default,
if the Default is correctable without material adverse effect to the Leased
Premises and corrective action is instituted by Tenant within such period and
diligently pursued until the Default is corrected.
C. The dissolution or liquidation of Tenant; or failure by Tenant
promptly to lift any execution, garnishment, or attachment of such consequence
as will impair its respective ability to carry out its obligations under this
Lease; or the filing by Tenant of a petition in bankruptcy; or if Tenant makes
an assignment for the benefit of creditors, or consents to the appointment of a
trustee or receiver for the Tenant or for the greater part of its properties;
or a trustee or receiver is appointed for the Tenant or for a greater part of
its properties without its consent and is not discharged within thirty (30)
days; or bankruptcy, reorganization, or liquidation proceedings are commenced
by or against the Tenant, and if commenced against the Tenant is consented to
by it and if Tenant fails to move to dismiss the action within thirty (30) days
and diligently pursues dismissal.
D. The term ADefault@ shall mean default or failure by the Tenant in
the performance or observance of any of the covenants, conditions, or
agreements on its part contained in this Lease, exclusive of any period of
grace required to constitute an Event of Default.
Section 12.2. Remedies Upon Event of Default. Whenever any Event of Default
shall have occurred and be continuing, the Landlord shall have the right to (i)
take immediate possession of the Leased Premises, and the possession of and
estate of the Tenant under this Lease shall terminate forthwith, or (ii)
re-enter and take possession of the Leased Premises without terminating this
Lease and relet the Leased Premises for the account of the Tenant, holding
Tenant liable for the difference between the rent and other amounts payable by
any sublessee in such subleasing and the lease payments and other amounts
payable by Tenant under this Lease; provided, however, that until Landlord has
entered into a firm agreement for the subleasing of the Property, Tenant may at
any time pay all accrued lease payments (except accelerated lease payments) and
fully cure all defaults, whereupon Tenant shall be restored to its use,
occupancy, and possession of the Leased Premises as if no default had occurred;
or (iii) take whatever action at law or in equity as may be necessary to
collect the lease payments then due and thereafter to become due or to enforce
performance and observance of any obligation, agreement, or covenant of Tenant
under this Lease. Landlord shall act reasonably in exercising its remedies upon
an Event of Default and shall have the duty to mitigate its damages.
Notwithstanding the foregoing, if an Event of Default shall occur prior to the
third anniversary of the date of this Lease Agreement, Tenant shall be
responsible for lease payments as provided above through such third
anniversary. If an Event of Default occurs after such third anniversary, Tenant
shall be responsible for lease payments hereunder for a six (6) month period
following such Event of Default.
Section 12.3. Payment of Attorneys= Fees and Other Expenses. Upon an Event of
Default by Tenant, Tenant shall pay to Landlord upon demand therefor all costs
and expenses, including reasonable attorneys= fees, lawfully incurred in
obtaining possession of the Leased Premises, or in enforcing the performance or
observance of any obligation or condition by Tenant under this Lease.
Section 12.4. Waivers and Limitation on Waivers. In the event any Default by
Tenant under this Lease should be waived by Landlord, such waiver shall be
limited to the particular Default so waived and shall not be deemed to waive
any other Default hereunder nor be deemed a waiver of the same Default on
another occasion.
No delay or omission to exercise any right occurring upon any Event of
Default shall impair any such right or shall be construed to be a waiver
thereof, but any such right may be exercised from time to time as often as may
be deemed expedient. In order to exercise any remedy reserved to Landlord in
this Lease, it shall not be necessary to give any notice other than such notice
as may be herein expressly required or required by law.
Section 12.5. Landlord=s Reimbursement. It is mutually covenanted and agreed by
and between the parties hereto that in case Landlord or its successors shall,
without fault upon their part, be made a party to any litigation commenced by
or against Tenant, arising out of the use or occupancy of the Leased Premises,
Tenant shall pay all costs and attorneys= fees necessarily incurred by the
Landlord in connection with such litigation.
Section 12.6. Surrender of Property. In the event of the forfeiture of this
Lease and the termination of the tenancy under this Lease by reason of any
Event of Default upon the part of Tenant, then and in such event, upon such
termination, the Tenant hereby covenants and agrees to peaceably give
possession of the Leased Premises and relinquish any and all rights thereto.
Section 12.7. Accelerated Rent. Upon an Event of Default, in addition to all
other rights and remedies available to Landlord, Landlord may accelerate all
rent payments due hereunder and the same shall be due immediately. In the event
that such Event of Default shall occur prior to the third anniversary of the
date of this Lease Agreement, Landlord may only accelerate and demand those
payments due hereunder through March I, 2001.
Section 12.8. Remedies Cumulative. It is mutually covenanted and agreed that
the various rights, powers, privileges, elections, and remedies of the Landlord
contained in this Lease shall be construed as cumulative, and the exercise of
any one of them shall not preclude the exercise by the Landlord of any other
rights or privileges that may be allowed by law.
Section 12.9. Tenant=s Remedies. Upon breach or default of Landlord of any of
its promises, covenants, representations or warranties, Tenant, in addition to
all other rights and remedies available to it by law, may terminate this Lease
without further liability. Additionally, Landlord shall pay to Tenant upon
demand therefor all costs and expenses, including reasonable attorneys= fees,
incurred by Tenant in enforcing its rights under this Lease.
ARTICLE 13
ENVIRONMENTAL ISSUES
Section 13.1. Environmental Liability. Tenant shall be responsible for and
indemnify and hold Landlord, its directors, officers, employees and agents
harmless from all claims, demands, actions, causes of action, settlements,
expenses and any other liabilities, including, reasonable attorneys= fees,
arising from or related to the Release of a Hazardous Substance by Tenant , or
any of its employees, agents, contractors or invitees on, near or affecting the
Leases Premises or other environmental defect or injury on, near or affecting
the Leased Premises which is caused by Tenant or any of its employees, agents,
contractors, or invitees during the Term.
Landlord shall be responsible for and indemnify Tenant , its
directors, officers, employees, and agents harmless from all claims, demands,
actions, causes of action, settlements, expenses and any other liabilities,
including reasonable attorneys= fees, arising from or related to the Release of
a Hazardous Substance on, near or affecting the Leased Premises or other
environmental defect or injury on, near or affecting the Leased Premises prior
to the Term.
Section 13.2. Tenant=s Obligations. Tenant shall not cause or permit any
Hazardous Substances to be used, stored, generated, or disposed of on or in the
Leased Premises by Tenant, its agents, employees, contractors, licensees or
invitees without first obtaining Landlord=s written consent; provided that,
Tenant may use, store, handle, and transport Hazardous Substances in the normal
course of Tenant's operations, if Tenant uses, stores, handles and transports
such Hazardous Substances in compliance with all federal, state and local laws,
rules and regulations.
Section 13.3. Hazardous Substances. As used herein, AHazardous Substances@
means any substance which is toxic, ignitable, reactive, or corrosive and which
is regulated by any local government, the State of Indiana, or United States
Government. AHazardous Substance@ also includes any and all material or
substances that are deemed as Ahazardous waste@, Aextremely hazardous waste@ or
a Ahazardous substance@ pursuant to state, federal or local governmental law.
AHazardous Substance@ also includes asbestos, polychlorobiphonyls (APCB=s@) and
petroleum.
Section 13.4. Release. As used herein, ARelease@ means any spilling, leaking,
pumping, pouring emitting, emptying, discharging, injecting, escaping, leaving,
dumping or disposing of Hazardous Substance (x) into the environment or (y)
into or on the soil, subsoil, air, groundwater, surface water, or sediment.
ARTICLE 14
MISCELLANEOUS
Section 14.1. Notice. Any notice under this Lease shall be in writing and shall
be deemed to be duly given if delivered personally or mailed by registered or
certified mail, addressed to Landlord at the address at which it receives rent
and addressed to Tenant at the Leased Premises, or such other address as may be
provided by one party to the other.
Section 14.2. Headings. (a) It is agreed that the headings as to the
contents of particular paragraphs of this Lease are inserted only as a
matter of convenience and for reference, and in no way are or are intended
to be part of this Lease, or any way to define, limit or describe the
scope or intent of the particular paragraph to which they refer.
(b) Where in this instrument pronouns or words indicating the singular
number appear, such words shall be considered as masculine, feminine or neuter
pronouns or words indicating the plural number where the context indicates the
propriety of such use.
Section 14.3. Entire Agreement. Landlord and Tenant agree that this Lease and
its Exhibits contain the entire agreement between them and shall not be
modified in any matter except by an instrument in writing signed by each of
them.
Section 14.4. Binding Effect. This Lease shall inure to the benefit of and be
binding upon Landlord and Tenant and their respective heirs, executors,
administrators, successors and such assigns and sublessee as may be permitted
hereunder. Each individual executing this Lease on behalf of a corporation
represents and warrants that (I) he or she has been authorized to do so by the
Board of Directors of such corporation and (ii) that the corporation has been
duly authorized by the Board of Directors to enter this Lease.
Section 14.5. Tenant Insurance. Tenant shall maintain during the Term , at its
sole cost and expense and as additional rent, insurance for fire, casualty,
hazard and extended coverage with responsible companies acceptable to Landlord
on the Leased Premises in an amount representing the full replacement value of
the improvements on the Leased Premises and in sufficient amounts to prevent
Landlord or Tenant from becoming a co-insurer within the terms of the
applicable policies; and in any event in an amount equal to the amount
currently maintained on the Leased Premises.
Said fire, casualty, hazard and extended coverage policies shall be
issued in the name of Tenant, with Landlord as a named insured, with the loss,
if any, payable to Landlord=s mortgagee, or if none, to Landlord and Tenant.
The proceeds of any insurance shall be used to rebuild, repair and restore the
Leased Premises as provided in this Lease unless prohibited by any mortgage.
Tenant shall also, at its sole cost and expense, as additional rental,
during the full term of this Lease maintain comprehensive general liability
insurance with responsible companies acceptable to Landlord protecting both
Landlord (as an additional insured) and Tenant against any and all claims for
personal injury, loss of life or damage to property sustained or claimed to
have been sustained in, on or about the Leased Premises or the adjoining
sidewalks, streets or alleyways. Tenant shall maintain all such insurance in
current coverage amounts through the current policy term. Following the
expiration or earlier termination of the current policies, any renewal or
replacement policies shall afford protection to the limit of not less than Five
Hundred Thousand Dollars ($500,000) in respect to the injury or death of a
single person, and to the limit of not less than One Million Dollars
($1,000,000) in respect to any one accident, and to the limit in respect to
property damage of Three Million Dollars ($3,000,000) .
Tenant shall furnish Landlord with duplicate originals or copies
certified by the insurance companies, or certificates of all insurance policies
required to be maintained under this paragraph and shall procure renewals of
all such insurance policies at least ten (10) days before the expiration
thereof. Such policies shall provide the Tenant and Landlord shall receive at
least ten (10) days prior written notice of the cancellation of the policy or
policies. In the event Tenant does not acquire the insurance policies required
herein, Landlord shall have the right to acquire said policies and charge the
costs therefor as additional rent.
Section 14.6. Confirmation. Tenant shall, at any time and from time to time, on
ten (10) days prior written notice by Landlord, execute, acknowledge, and
deliver to Landlord a written statement certifying that this Lease continues
unmodified and in full force and effect (or if there have been modifications,
that this Lease continues in full force and effect as modified and stating the
modifications), and the dates to which the minimum and the additional rent have
been paid, and stating whether Landlord is in default in performing any
covenant to this Lease, and, should Landlord be in default, specifying each and
every such default and any other matters relating to this Lease, it being
intended that any such statement delivered pursuant to this paragraph may be
relied on by Landlord or any prospective purchaser or mortgagee of the fee or
any assignee of any mortgagee on the fee of the Leased Premises.
Section 14.7. Survival. If any term, covenant, condition or provision of this
Lease is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the provisions hereof shall remain in full
force and effect and shall in no way be affected, impaired or invalidated
hereby.
Section 14.8. Memorandum. Landlord and Tenant agree if Landlord
so desires to execute, deliver and record with the Xxxxxxxx County
Recorder a memorandum of lease reflecting the terms and conditions of this
Lease and the option contained herein.
Section 14.9 Attornment. Tenant leases the Leased Premises subject to any
mortgages now or hereafter placed upon the real estate of which the Leased
Premises are a part and agrees to cooperate with Landlord in any attempts
Landlord may make from time to time to obtain financing secured by the real
estate and improvements thereon of which the Premises are a part. Tenant shall
attorn to and subject and subordinate its interest in the Lease and Leased
Premises to any of Landlord=s mortgagees, transferees, successors or assigns.
Section 14.10. Applicable Law. This Lease shall be deemed to have been
made in the State of Indiana and shall be construed according to the laws of
Indiana, without reference to its choice of law rules.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
the day and year first above mentioned.
ALANDLORD@
Xxxxxxx Properties, LLC
/s/ XxxxX. Ameling___________________
Xxxx X. Xxxxxxx, Member
ATENANT@
KAT, Inc.
By:/s/ XxxxX. Ameling_______________
President ,
GUARANTY
FOR VALUABLE CONSIDERATION, the undersigned hereby guarantees to
Xxxxxxx Properties, LLC, (the ALandlord@) the full and prompt payment and
performance by KAT, Inc., (the ATenant@) of each and every obligation as set
forth in the attached Lease dated March 18, 1999 between Tenant and Landlord
including, without limitation, the payment of all costs and expenses (including
attorneys fees) reasonably incurred by Landlord in the enforcement of its
rights under the Lease and/or this Guaranty. The undersigned waives notice of
default and consents to such extensions and other modifications of the Lease as
may be agreed upon from time to time between Landlord and Tenant.
Dated: March 21, 1999
TRANSIT GROUP, INC.
By:/s/ Xxxxxx X. Belyew_________
Xxxxxx X. Xxxxxx, President
Attest:
By:___________________________
Title:__________________________
