Exhibit 10.15
CAROLINA CENTRAL INDUSTRIAL CENTER
LEASE
THIS AGREEMENT OF LEASE is made as of this 5th day of February, 1998,
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by and between INDUSTRIAL DEVELOPMENT ASSOCIATES, a Maryland limited
partnership, having a place of business c/o Heritage Properties, Inc. at 000
Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000 ("Landlord"), as landlord, and
STONERIDGE, ALPHABET DIVISION, an Ohio Corporation;
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ARTICLE I
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Premises and Construction
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1.1 Premises. The Landlord hereby leases to Tenant, and Tenant hereby leases
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from Landlord, land and improvements constituting a portion of Lot No. 4 as
shown on the Consolidated Map of the Property of Industrial Development
Associates known as the Carolina Industrial Center, Phase 1, by Alley, Xxxxxxxx,
Xxxxxx & Xxxx, Inc., Engineers, dated February 11, 1991, and recorded in Plat
Book 43, at page 51, Alamance County N.C. Registry, and also shown on drawing
recorded in Plat Book 31, at page 30, Alamance County Registry, the same being
shown on as 36,427 square feet of space in the building constructed on said lot,
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known as Building No. 4 (the "Building") as shown on plans by Alley, Williams,
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Xxxxxx & King dated 2-19-90, Exhibit "A," duplicate copies of which showing the
boundaries of the demised portion of the building, have been highlighted and
initialled on behalf of each of the parties, with each party retaining one
highlighted and initialled copy each of even date herewith, this building being
known as 0000 X. Xxxxx Xxxxxx Extension, in the City of Mebane, Alamance
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County, North Carolina. The Landlord may, now or hereafter in its discretion,
cause the portion of the building leased hereunder and that not so leased to be
assigned separate street numbers. Except for Section 7.2 hereof, the phrase
"Tenant's pro rata" share and the like references shall mean 59.71%, which has
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been determined by dividing the total rentable square feet in the Building into
the rentable square feet in the Building leased to Tenant. The rentable square
feet has been determined as the area within dimensions measured from the center
of any interior demising wall to the outside of any exterior wall constituting a
wall of the demised portion of the building.
1.2 Work to be Performed by Landlord at Landlord's Expense.
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Landlord, at its cost and expense, shall perform and complete such work on the
interior of Leased Premises as set forth in the plans and specifications
("Landlord's Plans") attached as Exhibit "B" to this Lease. During the period
Landlord is performing work on the Leased Premises pursuant to this section,
Tenant shall have the right to enter upon the Leased Premises to install its
fixtures, equipment, and other property so long as Tenant does not unreasonably
interfere with Landlord in the performance of Landlord's work.
Landlord shall notify Tenant in writing as soon as the Leased Premises
are substantially completed in accordance with Plans and ready for Tenant to
take occupancy. Taking of possession by Tenant shall be subject to punch list
items for the Leased Premises specified by the parties at the time Tenant takes
possession and faulty materials or workmanship warranted by the Landlord.
Landlord hereby warrants the
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materials and workmanship for the work performed by Landlord for a period of one
year commencing on the date Tenant takes possession of the Leased Premises or,
in the case of any dividing wall(s) erected by the Landlord, commencing on the
date the Landlord completes such dividing wall(s), provided that Tenant gives
Landlord written notice of any defect promptly as it is discovered and within
such one-year period.
1.3 Work to be Performed by Tenant at its Expense with Landlord's Approval.
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Tenant, at its own cost and expense, shall perform and complete such work on the
interior of Leased Premises as set forth on the plans and specifications
("Tenant's Plans") attached as Exhibit "C" to this Lease, which Plans and
Specifications are hereby approved by the Landlord.
ARTICLE II
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Lease Term
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2.1 Term. The term of this Lease shall begin on March 1, 1998, and shall
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end on March 31, 2001, unless sooner terminated as herein provided, this
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period being called the "Term."
ARTICLE III
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Rent
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3.1 Annual Rent. Beginning on the later of March 1, 1998 or the date
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Landlord completes the work described in Section 1.2 above, Tenant shall pay to
Landlord annual rent in accordance with the following schedule, without demand
or set-off, in legal tender, and in advance on the first day of each and every
month in each year during the Term. The annual rent shall be:
Period Area (SF) Rent/SF Annual Rent Monthly Rent
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3/1/98 - 4/1/98 36,427 Free Free Free
4/1/98 - 3/31/99 36,427 $2.85 $103,816.95 $8,651.41
4/1/99 - 3/31/2000 36,427 $2.96 $107,969.63 $8,997.47
4/1/2000 - 3/31/2001 36,427 $3.08 $112,288.41 $9,357.37
Tenant shall make all rent payments to Landlord, Industrial Development
Associates, c/o Heritage Properties, Inc., 000 Xxxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000, or at such other address designated by Landlord in a
written notice to Tenant.
3.2 Impositions. The annual real estate or other taxes and special
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assessments imposed on or with respect to the land and improvements on the
assessed unit of which Leased Premises are a part, including, without
limitation, front foot or benefit assessments for sewerage, water or paving and
any rent or occupancy tax which may be imposed (collectively the "Impositions")
for any tax year during the term of this lease shall be paid by the Tenant
within thirty (30) days following receipt of a xxxx therefor from the Landlord
after such tax or assessment is due as part of additional rent for the Leased
Premises. Tenant shall not be obligated to pay any installment of any special
assessment levied or assessed during the Term but not due until after
termination of this Lease. Impositions shall be based on a square foot
proportional basis as to any assessed unit of which the Leased Premises are a
part.
Unless otherwise required by Landlord, Tenant shall pay its share of
Impositions directly to the Landlord. Upon the request of Tenant, the Landlord
shall deliver copies of Imposition bills and notices to Tenant following their
receipt by Landlord.
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3.3 Utilities. Beginning on January 1, 1998, Tenant shall pay when due, as
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part of additional rent, all charges for gas, electricity, water, sewer,
telephone, and all other utilities used or consumed at the I-eased Premises,
Landlord shall provide that gas, electricity, and water be separately metered
for the Leased Premises. Tenant shall pay all such bills directly to the billing
entity, and, upon request of Landlord, shall forward to Landlord a receipt or
other appropriate evidence that all such bills are paid.
3.4 Expenses. Unless expressly or otherwise provided in this Lease, Tenant
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shall pay all costs, expeases and obligations of every kind relating to the
Leased Premises which may arise during the term except (a) municipal, state. or
federal incorne taxes or estate, succession, inheritance or gift taxes or
corporation franchise taxes assessed against Landlord: (b) costs, expenses, and
obligations incurred by Landlord in connection with the sale or mortgaging of
the Leased Promises; and (c) costs of maintenance and repairs for which Landlord
is responsible under the terms of the Lease.
3.5 Security Deposit. N/A
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3.6 Rights of First Offer. N/A
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ARTICLE IV
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Occupancy
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4.1 Quiet Enjoyment. Upon payment of the rent as required under this Lease
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and performance by Tenant of all of the covenants and provisions of this lease
to be performed by Tenant, Tenant shall have during the Lease Term peaceful and
quiet use and possession of the Leased Premises without hindrance on the part of
Landlord or others holding through or under the Landlord.
4.2 Use of Premises. Tenant may use the Leased Premises only for the
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purpose of product research and development, warehousing, distribution, light
manufacturing and office use.
4.3 Compliance with Law. Tenant shall at all times during the Term, at its
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own expense, conform to and comply with all laws, regulations, orders and other
governmental requirements, or requirements of the Board of Fire Underwriters,
now or hereunder in force, affecting Tenant's use or occupancy of all or any
part of the Leased Premises. Landlord represents and warrants to Tenant that on
the date of delivery of the Leased Premises to Tenant, the Leased Premises and
the Building will be in compliance with all laws, ordinances, orders, rules,
regulations of any governmental body having jurisdiction over the use,
condition, and occupancy of the Leased Premises. Landlord has at all times in
the past conducted its activities at the Building and the land and improvements
shown on Consolidated Map of Property of Industrial Development Associates
referred to in Section 1.1. hereof, and shall operate and perform all work of
Landlord for the Building and the lot at which the Building is located, in
accordance with all governmental requirements relating to Environmental Matters.
Landlord shall indemnify Tenant from all claims and liability of any kind caused
by Landlord with respect to any violation of any governmental requirement
regarding construction and operation of the Building or the land and
improvements shown on Consolidated Map of Property of Industrial Development
Associates referred to in Section 1.1 hereof relating to Environmental Matters.
Landlord also agrees to indemnify Tenant from all claims and liabilities of any
kind with respect to any violation of any governmental requirements relating to
Environmental Matters by any prior owner of lessee of the land and improvements
shown on the Consolidated Map of Property of Industrial Development Associates
refereed to in Section 1.1 hereof, if such violation occurred prior to the date
hereof and is known to Landlord.
Tenant shall operate and maintain the Leased Premises in accordance with all
governmental requirements relating to Environmental Matters. Tenant shall
indemnify Landlord from all claims and liability of any kind caused by Tenant
with respect to any violation of any governmental requirement regarding
occupancy and operation of the Leased Premises relating to Environmental
Matters.
"Environmental Matters" shall mean all governmental requirements governing
the discharge, release, emission, or disposal of any hazardous substance, and
prescribing methods for or other limitations on sorting, handling, or otherwise
managing hazardous substances including, but not limited to, the then current
versions of the following federal statutes, their state analogs, and the
regulations implementing them: the Resource Conservation and Recovery Act (42
U.S.C. SS6901, et.seq.); the Comprehensive Environmental Response, Compensation
and Liability Act (42 U.S.C. SS9601, et.seq.); the Clean Water Act (33 U.S.C.
SS1251, et.seq.); the Clean Air Act (42 U.S.C. SS7401, et.seq.) and the Toxic
substances Control Act (15 U.S.C. SS2601, et.seq.).
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4.4. Restrictive Covenants. At all times during the Term, Tenant shall
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comply with, perform, and be bound by, all the terms, provisions, conditions,
restrictions, and covenants imposed on "Occupants/Tenants" set forth in the
covenants with respect to the Leased Premises as set forth on attached Exhibit
"D" entitled "Restrictive Covenants." The Landlord, having caused the Building
and other improvements on the Leased Premises to be constructed, acknowledges
that the Leased Premises comply with the said Restrictive Covenants and that the
Tenant's intended use of the Leased Premises (product research and development,
warehousing, distribution, light manufacturing and office use) is not a
violation thereof.
ARTICLE V
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Transfers
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5.1 Assigning and Subletting. Tenant shall not have the right to sublet the
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Leased Premises, or any portion thereof, or to assign Tenant's interest in this
Lease, or any portion thereof, without the prior consent of Landlord, which
consent shall not be unreasonably withheld or delayed. For purposes of this
Section 5.1, consent shall be considered unreasonably withheld when Landlord
rejects a proposed sublessee whose intended use of the Leased Premises is not
inconsistent with a use described in Section 4.2 and who is financially
responsible in terms of being able to pay its debts when they become due in the
usual course of business. For purposes of this Section 5.1, consent shall be
considered unreasonably delayed when Landlord does not respond to Tenant's
proposed assignment or sublease within ten (10) days, if Tenant so specifies
that required response time in Tenant's inquiry notice. Subletting or assignment
shall not relieve Tenant of its obligations to Landlord under this Lease. In the
event that the amount of the rent to be paid to the Tenant by any assignee or
sublessee is greater than the rent required to be paid by the Tenant to the
Landlord pursuant to this Lease, Tenant shall pay to Landlord any such excess as
is received by Tenant from such assignee or sublessee. Tenant shall not have
the right to sublet the Leased Premises at a rental rate less than the rate
stated in this Lease.
5.2 Assignments to Tenant's Lenders. Notwithstanding the foregoing
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provisions of Section 5.1, Landlord acknowledges that Tenant shall be
permitted, without Landlord's consent, to assign its interest in the Lease and
the Leased Premises in favor of a national banking association as collateral in
connection with funds loaned to Tenant for Tenant's work and/or establishment
and operation of its business in the Leased Premises.
ARTICLE VI
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Parking
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6.1 Parking. Subject to the rules, regulations, and conditions set forth on
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Exhibit D, Rider #3, Tenant shall be entitled to the use of automobile parking
areas, driveways, access roads, footways, and loading facilities as shown on
the site plan attached as Exhibit "E".
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ARTICLE VII
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Maintenance and Alterations
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7.1 Maintenance and Repair. Tenant at its sole cost and expense, and
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except as provided below, shall perform all maintenance of an ordinary and
recurring nature necessary to maintain and keep in an orderly condition and in
a good state of repair the interior of the Leased Premises from ceiling to
floor, including, but not by way of limitation, all non-capital repairs to
interior walls, windows, plumbing and sewerage facilities, air-conditioning
system, heating system, electrical facility and equipment, exterior lighting on
the building, and all other fixtures, equipment and appliances of every nature
between the ceiling and the floor on the interior of the Building, reasonable
use and wear and fire and other casualty excepted. Landlord shall assign to
Tenant during the Term all warranties applicable to the heating, ventilating and
air-conditioning systems and equipment serving the Leased Premises to the extent
of the Tenant's interest therein during the Term. The cost of maintenance and
repairs shall include all costs allocable to such maintenance and repair in
accordance with generally accepted accounting principals and the terms hereof.
Landlord shall maintain in good and presentable repair and condition the roof,
structural parts of the Building, and all parts of the Building not to be
maintained by Tenant as provided above, and cause to be maintained the Common
Areas of the Industrial Center of which the Leased Premises are a part as
referred to in Section 7.2 of this Lease. Tenant may repair and credit upon rent
any repairs to the Leased Premises which are a responsibility of the Landlord
which have not been made within thirty (30) days after written notice by the
Tenant to the Landlord calling attention to the need for such repairs, or within
twenty-four (24) hours after actual notice to the Landlord by the Tenant in the
event of an emergency. Except as expressly provided in this Lease, Landlord
shall not be called upon or obligated to make or pay any repairs, replacements,
restorations, improvements, alterations or additions whatsoever in or about the
Leased Premises.
7.2 Common Area Maintenance. For the purpose of this Lease and in
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particular of this Section thereof, the term "common area maintenance" shall be
deemed to refer to that maintenance which may be provided by the Landlord, to
Carolina Central Industrial Center under the terms of the recorded Restrictive
Covenants referred to in Section 4.4 hereof and, in particular as set forth in
paragraph 26 of said recorded Restrictive Covenants, as well a such maintenance
rights of enforcement and powers as may be assigned by the Landlord herein
(referred to in the said restrictive Covenants as the "Declarant") to an entity
formed pursuant to paragraph 27 by a majority of the Lots covered thereby, it
being understood that the term "common area" as herein used does not imply that
there is real property owned within said Carolina Central Industrial Center as a
common area.
During the free rent period, and for each year during the Term and all
renewal periods, Tenant shall pay monthly as additional rent upon receipt of a
xxxx therefor from Landlord, a common area maintenance charge representing
Tenant's proportionate share of the cost to Landlord of operating, maintaining,
repairing and replacing the roads and parking areas, street lighting and
exterior grounds in and around Carolina Central Industrial Center of which the
Leased Premises are a part. Such charge shall be for repair of the parking areas
and for keeping them clear of snow, debris and other rubbish, and for
maintenance of all exterior grounds, grass, landscaping and related areas.
Tenant's proportionate share shall be the amount determined by multiplying
the total annual expense to the Landlord for so maintaining the parking areas
and exterior grounds by a fraction, the numerator of which is 36,427
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representing the number of square feet of
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floor area of the Leased Premises, and the denominator of which shall be the
floor area of the other buildings in the Industrial Park (i.e., 239,569 square
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feet) of which the Leased Premises are a part. Tenant's proportionate share of
the common area charges presently is 15.21%.
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7.3 Alterations by Tenant. Tenant, without the prior written consent
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of Landlord, which consent shall not be unreasonably withheld or delayed after
submission of plans for such, shall not make any interior alterations,
structural alterations, changes to the exterior appearance of the Leased
Premises, additions or other improvements to the Leased Premises, except for
maintenance and repair required of Tenant.
ARTICLE VIII
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Surrender of Leased Premises
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8.1 Surrender. Upon the end of the Term or any earlier termination of
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this Lease, Tenant shall surrender to Landlord the Leased Premises, including
(except as otherwise provided in Section 8.2 below) all alterations,
improvements and other additions, in good order and repair, reasonable wear and
tear and damage by fire or other casualty excepted.
8.2 Tenant Equipment Excepted. Tenant shall be entitled to (or, at
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Landlord's request, must) remove from the Leased Premises Tenant's office, trade
and manufacturing fixtures, furniture, equipment and signs which Tenant has
installed on the Leased Premises prior to or during the Term at the cost of
Tenant and which are not an integral part or necessary to the operation of the
Leased Premises as are plumbing, heating ventilation, air-conditioning, and
other similar equipment. Tenant shall at its own cost and expense repair any and
all damage to the Leased Premises resulting from or caused by such removal, and
shall restore the Leased Premises to good order and condition, reasonable wear
and tear excepted. Tenant shall have thirty (30) days after termination of this
Lease as provided herein to effect such removal, repair and restoration.
ARTICLE IX
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Mechanic's Liens
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9.1 Mechanic's Liens. Prior to approving any construction on the Leased
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Premises by Tenant, Landlord shall have the right to require Tenant, or Tenant's
contractor for such construction, to furnish a bond in an amount equal to the
estimated cost of such construction with corporate surety approved by Landlord
for (a) completion of such construction and (b) indemnifying Landlord and
Tenant, as their interests may appear, against liens for labor and materials,
which bond shall be furnished before any work is begun or any materials
delivered. Landlord shall also have the right at any time before, during or
after such construction to require Tenant to furnish such other assurances
against mechanics' liens as may be reasonable including, but not limited to,
releases of liens signed by all contractors, subcontractors, and suppliers, and
affidavits executed by Tenant and by Tenant's contractor or architect that all
labor and material theretofore furnished have been paid in full and provide a
bond in order to obtain release of any lien filed against the Building.
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ARTICLE X
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Insurance and Indemnity
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10.1 Casualty Insurance. Beginning on the commencement of the Term hereof
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of this Lease and continuing during the entire Term, Landlord, at its expense,
shall keep the Building on the Leased Premises insured against loss or damage by
fire, vandalism and other casualty to the extent now or hereafter covered under
standard extended coverage. Such insurance shall be in the amount of the full
replacement value of the Building (including leasehold improvements) as the same
may increase from time to time. Landlord shall furnish Tenant with a copy of
such policy or with a certificate of the insurer that the same is in effect. The
Tenant shall pay Landlord as additional rent upon receipt of a xxxx therefor
from Landlord the annual premium for such insurance coverage. Such payment by
Tenant shall be based on a square foot proportional basis as to the total area
of any building of which the Leased Premises are a part.
Tenant shall at all times during the Term maintain at its own cost and
expense such casualty insurance against loss, damage, or destruction to all
signs, trade fixtures, improvements, equipment, furniture and other
installations and property installed by Tenant on the Leased Premises, and
shall, upon Landlord's request, provide Landlord with certificates of insurance
evidencing that such policies are in force or copies of such policies.
Both Landlord and Tenant hereby agree to procure and maintain such property
and business interruption insurance as they deem appropriate for protecting
their respective interests.
10.2 Indemnity. At all times after Tenant takes possession of the Leased
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Premises and for any period that Tenant enters the Leased Premises prior to the
Commencement Date to make its installations, Tenant shall protect, indemnify,
and save the Landlord harmless of, from and against any and all liabilities,
damages, costs expenses, fees, demands, or claims of any nature whatsoever
arising from (a) any work or thing done in or about the Leased Premises, and the
improvements now or hereafter constructed thereon, or any part thereof, by
Tenant or its agents or employees or independent contractors hired by Tenant,
(b) injury to or death of persons or damage to property on the Leased Premises
or the improvements now or hereafter constructed thereon, and (c) any negligent
act or omission on the part of the Tenant, or its employees or invitees or
independent contractors arising out of the occupancy or use of the Leased
Premises and the improvements now or hereafter constructed thereon, except that
Tenant shall not be required to save and hold Landlord harmless or to indemnify
Landlord if the injury or loss is due to a willful or negligent act or omission
of the Landlord or its agents or employees.
10.3 Public Liability Insurance. During all periods of construction or
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reconstruction work performed by Tenant on the Leased Premises, Tenant, at its
own expense, shall keep in force, by advance payments of premiums, workmen's
compensation and builder's risk insurance reasonably acceptable to Landlord.
Beginning on the date of commencement of Tenant's entry upon the Leased
Premises and continuing during the entire Term, Tenant, at Tenant's expense,
shall keep in force, by advance payments of premiums, public liability insurance
in an amount of not less than Two Million Dollars ($2,000,000.00), this being a
single limit policy for one or more claims thereunder because of any one
occurrence for personal injury or death and for damage to property, insuring
against any liability that may accrue on account of any
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occurrences in or about the Leased Premises or in consequence of Tenant's
occupancy of the Leased Premises. Such insurance shall protect and indemnify not
only against any and all such liability, but also against all loss, expense and
damage of any and every sort and kind, including costs of investigation and
attorney's fees and other costs of defense. All such insurance shall be with
insurers approved by Landlord (which approval shall not be unreasonably withheld
or delayed), and all policies shall name Landlord and Tenant as beneficiaries
as their respective interests may appear. All policies required pursuant to
Article X shall provide that, notwithstanding any act or negligence of Tenant
which might otherwise result in a forfeiture, such policies shall not be
canceled without at least ten (10) days' prior written notice to each insured.
Tenant shall furnish Landlord with a copy of all such polices or a certificate
that such policies are in effect.
10.4 Waiver of Subrogation. Landlord and Tenant each waive and release
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any and all rights to recover against the other or against the officers,
directors, shareholders, partners, employees or agents of the other party for
any loss or damage to such waiving party arising from any cause covered by any
insurance required to be carried by such party pursuant to this article or by
any other insurance actually carried by such party to the extent that such loss
or damage is covered by valid and collectable insurance in effect at the time of
such loss or damage. Landlord and Tenant shall each have included in all
policies or fire, extended coverage, business interruption and other casualty
insurance respectively obtained by them covering the Leased Premises, the
Building and contents therein, a waiver by the insurer of all rights of
subrogation or otherwise against the other party hereto in connection with any
loss or damage thereby insured against. Any additional premium for such waiver
shall be paid by the primary insured.
ARTICLE XI
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Eminent Domain
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11.1 Total Taking. If the entire Leased Premises be taken under the power
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of eminent domain or purchased by a governmental entity in lieu thereof (herein
together called "Eminent Domain"), this Lease shall terminate as of the date
possession is taken.
11.2 Partial Taking. If any portion of the Leased Premises shall be taken
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under the power of Eminent Domain, and the portion not so taken would not, in
the reasonable judgment of Tenant, be adequate for the continued operation of
Tenant's business, either unrestored or restored, notice of which judgment shall
be communicated in writing to Landlord stating the reasons therefor within sixty
(60) days following the date on which Tenant receives notice of the condemning
authority's intention to take such property as hereinafter set forth, or if
Landlord deems such restoration to be impractical, this Lease shall be deemed
to have terminated as of the date of the taking of possession by the condemnor.
If this Lease is not terminated pursuant to this Section 11.2, Landlord,
immediately following the taking, to the extent of condemnation proceeds made
available to Landlord, shall proceed to restore such part of the Leased Premises
as is not taken to or near the former condition of the original Leased Premises,
less all signs, trade fixtures, improvements, furniture, and other installations
and property installed by Tenant, as the circumstances will permit. During the
period of such restoration and thereafter rent shall be abated in a just and
proportionate amount.
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11.3 Damages. All damages awarded for any such taking under the power of
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Eminent Domain shall be paid to the Landlord, except for damages awarded for
Tenant's fixtures and equipment used in operation of the Leased Premises and its
reasonable relocation expenses.
11.4 Rent. If this Lease is terminated as provided in this Article XI, all
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rent shall be paid up to the date that possession is taken by the condemning
authority, and Landlord shall make a proportional refund to Tenant of any rent
or other amounts paid by Tenant which are applicable to any period after that
date and not yet earned.
ARTICLE XII
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Damage and Destruction
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12.1 Restoration of Damaged or Destroyed Leased Premises. In the event
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that the Building on the Leased Premises shall be damaged by fire or other
casualty covered by extended coverage insurance during the term of this Lease,
the Tenant shall give immediate notice thereof in writing to the Landlord. If
the Building is not damaged to such an extent as to render it practicably
untenable rental payments shall proportionately xxxxx during such interruption
of its use as may be caused by such casualty. In the event of such casualty the
Landlord shall, upon such notice thereof, proceed to cause such damages to be
repaired, and such repairs shall be pursued with due and reasonable diligence
and be completed within a reasonable time, subject to any delays resulting from
any force majeure.
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If the damage to the Building by such casualty shall render it practicably
untenable, rental payments shall xxxxx from the date of the casualty damage
until such time as the Building shall have been rendered tenable, and Landlord
shall promptly cause an evaluation of such damage to be made and, within thirty
days of its receipt of notice of such casualty, shall determine if it: (a) is
unwilling to proceed to restore said premises, in which case it will give
written notice of such determination within such thirty day period to the
Tenant, and the Lease shall thereupon be terminated and rental payments
thereunder shall cease (or be refunded) as of the date of the casualty; or (b)
is willing to proceed to restore same, which notice shall be given to the Tenant
in writing within such thirty day period and shall contain an estimate of the
time required to render the Building tenable once more. If the estimated time
required for completion shall exceed sixty (60) days from the time of
commencement thereof, or if less than six months remain in the Term of the Lease
as of the date of the casualty, with rental and other payments hereunder to
cease or be refunded as of the date of the casualty, the Tenant shall have the
option to terminate the Lease as of the date of the casualty, such option to be
exercised or affirmatively waived in writing within 15 days after Tenant's
receipt of notice of the estimated time required to render the Building
tenantable, with restoration to commence within ten days of receipt by the
Landlord of written notice by the Tenant of its election hereunder. Should
restoration of the Building be commenced pursuant to (b) of this paragraph, the
Landlord shall cause such repairs to be pursued with due and reasonable
diligence and to be completed within the estimated time, subject to any delays
resulting from any force majeure.
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ARTICLE XIII
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Default by Tenant
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13.1 Tenant's Default. If Tenant (a) shall fail to pay any rent or other
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sum of money due hereunder within ten (10) days after receipt or receipt of
refusal by the Landlord of notice of such failure or if Tenant shall fail to pay
any rent or other sum of money due hereunder within five days after the same
shall be due (provided however that the Landlord agrees to give written notice
to Tenant of any such failure of payment and such failure will not constitute an
event of default unless Tenant fails to make such payment on or before the tenth
day from and after receipt or refusal of such notice, and provided further that
such notice and grace period shall be required to be provided by the Landlord
and shall be accorded the Tenant, if necessary, only twice during any
consecutive twelve month period of the term, with an event of default to be
deemed to have immediately occurred upon the third failure to make a timely
payment as aforesaid within any consecutive twelve month period of the term) or
(b) shall fail to perform any other terms, conditions, or covenants of this
Lease to be observed or performed by Tenant for more than thirty (30) days after
written notice of such default shall have been mailed to Tenant, unless such
default is of a nature that it cannot practically be cured within such thirty
(30) day period and Tenant is proceeding with due diligence to cure xxxxx
default, or (c) shall abandon the Leased Premises, then at Landlord's option and
without limiting Landlord in the exercise of any other right or remedy Landlord
may have in law or equity on account of such default, and without any further
demand or notice, Landlord may
(i) Re-enter the Leased Premises take possession of all Improvements,
additions, alterations, equipment and fixtures thereon, eject all parties
in possession thereof therefrom, and, without terminating this Lease, at
any time and from time to time relet the Leased Premises or any part or
parts thereof for the account of Tenant or otherwise, receive and collect
the rents therefor, applying the rents first to the payment of such
reasonable expenses as Landlord may have paid, assumed or incurred in
recovering possession of the Leased Premises, including costs, expenses and
reasonable attorney's fees, and for placing the Leased Premises in good
order and condition or preparing or altering the same for reletting and all
other expenses, commissions and charges paid, assumed or incurred by
Landlord in or in connection with reletting the Leased Premises, and then
to the fulfillment of the covenants of Tenant. Any such reletting may be
for the remainder of the Term of this Lease or for a longer or shorter
period. Landlord may execute any lease made pursuant to the terms hereof
either in Landlord's name or in the name of Tenant, as Landlord may see
fit, and the subtenant therein shall be under no obligation whatsoever for
the application by Landlord of any rent collected by Landlord from such
subtenant to any and all sums, due and owing or which may become due and
owing under the provisions of this Lease. Tenant shall not have any right
or authority to collect any rent from subtenant. In any case and whether or
not the Leased Premises or any part thereof be relet, Tenant shall pay to
Landlord all sums required to be paid by Tenant up to the time of re-entry
by Landlord. Thereafter Tenant, if required by Landlord, shall pay to
Landlord until the end of the Term of this Lease the equivalent of the
amount of all rent and other charges required to be paid by Tenant under
the terms of this Lease, less the proceeds of such reletting during the
Term of this Lease, if any, after payment of the expenses of Landlord. Such
rent shall be due and
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payable on the several rent days herein specified, and Landlord need
not wait until the termination of this Lease to recover any rent by legal
action or otherwise. Re-entry by Landlord shall not constitute an election
to terminate this Lease unless Landlord gives Tenant notice of Landlord's
election to terminate.
(ii) Declare this Lease at an end, re-enter the Leased Premises eject
all parties in possession thereof therefrom and repossess and enjoy the
Leased Premises together with all Improvements thereto, and Landlord shall
thereupon be entitled to recover from Tenant any rent due from Tenant to
Landlord as of the date of such re-entry and, subject to the Landlord's duty
to mitigate damages, the amount of rent and charges equivalent to rent
reserved in this Lease for the balance of the Term. For the purpose of this
subparagraph (ii) all Impositions and contributions to expenses and other
items paid by Tenant shall be projected over the term of the Lease at an
average increase of such items as may have occurred since the date of this
Lease to the date of default.
13.2 Remedies Not Exclusive; No Waiver. The remedies of Landlord set forth
----------------------------------
in this Lease are cumulative and are in addition to and not exclusive of any
other remedy of Landlord herein given or which may be permitted by law, and if
any breach or threatened breach by Tenant of this Lease occurs, Landlord shall
be entitled to enjoin such breach or threatened breach and shall have the right
to invoke any right and remedy allowed by law or in equity or by statute or
otherwise in addition to rights set forth in this Lease. Tenant shall permit any
re-entry as provided for in this Article without hindrance to Landlord, and
Landlord shall not be liable in damages or guilty of trespass because of such
re-entry. The failure of Landlord to insist, in any one or more instances, upon
a strict performance of any of the covenants of this Lease or to exercise any
option contained herein, shall not be construed as a waiver or a relinquishment
for the future as to such covenant or option. A receipt by Landlord of rent with
knowledge of the breach of any covenants of this Lease shall not be deemed a
waiver of such breach. No waiver by Landlord of any provision of this Lease
shall be deemed to have been made unless expressed in writing and signed by
Landlord.
13.3 Cure by Landlord. Section Intentionally deleted.
-----------------
13.4 Cure by Tenant. Section Intentionally deleted.
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ARTICLE XIV
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Bankruptcy
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14.1 Effect of Bankruptcy or Other Proceedings. If at any time any
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bankruptcy or any reorganization proceeding is instituted by or against Tenant
either in the State or Federal Courts, or if a receiver is appointed under the
Bankruptcy Act, for its business or property on or in the Leased Premises, or if
the Tenant should suffer the taking of this lease by execution or by foreclosure
of any lien against its leasehold interest, or if Tenant shall make an
assignment for the benefit of creditors or voluntarily or involuntarily take
advantage of any debtor relief proceedings under present or future law,
Landlord, in addition to any other remedies provided it in the event of Tenant's
default as set forth in this Lease or under any applicable law, shall have the
option, to be exercised by written notice given to Tenant, to declare this
12
Lease terminated at any time after the expiration of twenty (20) days following
the commencement of such proceeding or the execution or attempted execution or
foreclosure or attempted foreclosure upon its leasehold interest, unless the
proceeding is dismissed or the judgment or lien pursuant to which execution or
foreclosure was made or attempted is paid and unless all payments of rent and
other payments required by this Lease to be made by Tenant to Landlord are paid
promptly during such period of twenty (20) days. Landlord shall under no
circumstances be required to permit a receiver or any person claiming through or
under Tenant to retain possession of the Leased Premises. Landlord need not
lease the Leased Premises to such receiver or person, and Landlord shall be
entitled to immediate possession of the Leased Premises. Any repossession or
termination hereunder shall not operate in any way to prejudice or affect the
right of Landlord for recovery of rent or other charges theretofore accrued,
thereafter accruing or any damages, nor shall any such termination or
repossession ever be construed as a waiver of or an election not to claim future
damages on account of such breach, but all such damages including all future
rentals shall be fully recoverable by the Landlord.
ARTICLE XV
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Miscellaneous
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15.1 Recording. Tenant shall not record this lease without the written
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consent of the Landlord, however upon the request of either party the other
shall join in the execution of a memorandum or "short form" lease for the
purpose of recordation, describing the parties, premises, and the term hereof
and incorporating this lease by reference therein.
15.2 Subordination, Non-disturbance and Attornment Agreement. This Lease
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shall be subject to and subordinate at all times to the lien of any mortgages or
deeds of trust now or hereafter made by the Landlord on the Leased Premises, and
to all advances made or hereafter to be made thereunder. Although this
subordination provision shall be self-operative and no further instrument of
subordination shall be required, Tenant will, nevertheless, upon request of the
Landlord, enter into a subordination, non disturbance and attornment agreement
with reference to any present or future lender whose loan is secured by a deed
of trust secured in whole or in part upon all or a portion of the Leased
Premises, providing in terms reasonably and customarily required by said lender
and deemed appropriate by its legal counsel for such purposes, for the
subordination of this lease to said deed of trust and any modifications or
extensions thereof, with the Tenant's use, possession or enjoyment of the
premises hereunder to be assured so long as there is no default hereunder, with
the Tenant agreeing to attorn to any transfer of the Landlord's title in said
premises by reason of foreclosure or other proceedings instituted in connection
with the deed of trust, including the Lender if it be the purchaser.
15.3 Estoppel Certificates. Each party agrees at reasonable intervals and
----------------------
from time to time upon not less than ten (10) days' prior written notice by the
other to execute, acknowledge and deliver a statement in writing certifying (i)
that this Lease is unmodified and in full force and effect (or if there have
been modifications, that the Lease is in full force and effect as modified and
stating the modifications), (ii) the dates to which the rent and other charges
have been paid in advance, if any, and (iii) stating whether or not to the best
knowledge of the signer of such certificate the signing party is in default in
performance of any covenant, agreement or condition contained in this Lease and,
if so, specifying each such default of which the signer may have knowledge. Each
party acknowledges that any such statement delivered under this Lease may be
relied upon by third parties not a party to this Lease.
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15.4 Right to Enter. Landlord and its agents shall have the right to enter
---------------
the Leased Premises at reasonable hours upon twenty-four hours notice to Tenant,
and at any time without notice if any emergency exists, to examine the Leased
Premises, or to make such repairs and alterations as shall be reasonably
necessary for the safety and preservation of the Leased Premises, or during the
last three (3) months of the Term to show both the interior and exterior of the
Leased Premises to prospective tenants or purchasers and to place "For Rent" or
"For Sale" signs thereon.
15.5 Laws of North Carolina. This Lease shall be construed and applied in
-----------------------
accordance with the laws of the State of North Carolina.
15.6 Severability. Any provision or provisions of this Lease which shall
-------------
prove to be invalid, void, or illegal shall in no way affect or impair or
invalidate any other provisions, and the remaining provisions shall remain in
full force and effect.
15.7 Headings. The headings of the various Articles and Sections of this
---------
Lease are inserted for reference only and shall not to any extent have the
effect of modifying, amending or changing the express terms and provisions of
this Lease.
15.8 Notices. Any notice or other communication required or permitted
--------
hereunder shall be in writing and shall be delivered personally, telegraphed,
telexed, sent by facsimile transmission or sent by certified, registered or
express mail, or by overnight courier, postage or other charges prepaid. Any
such notice shall be deemed given when so delivered personally, telegraphed,
telexed or sent by facsimile transmission or, if mailed, seven (7) days after
the date of deposit in the United States mail, or, if sent by overnight courier,
the day after delivery to the overnight courier, at the addresses set forth in
the first paragraph of this Lease or so mailed or delivered to the Tenant or a
responsible employee thereof at the address at the address of the Leased
Premises, with a copy sent as follows if to the Tenant:
Xx. Xxxxx Xxxxxx
Alphabet, Inc. - MCR Division
0000 Xxxxxxx Xxx
Xxxxxx, XX 00000
Any party may, by notice given in accordance with this Section to the other
party, designated other addresses or persons for receipt of notices hereunder.
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15.9 Force Majeure. In no event shall Landlord be liable for, nor shall
--------------
Tenant have the right to terminate this Lease for delays in the prosecution of
Landlord's share of construction beyond Landlord's control ("Force Majeure"),
---------------
including (but not limited to) delays caused directly or indirectly by strikes,
lockouts, the unavailability of labor or materials, Acts of God, acts of any
Federal, State, or Local governmental agency or authority, war, insurrection,
rebellion, riot, civil disorder, fire, explosion, windstorm, hail, snow, extreme
cold, rain, flood, damage from aircraft, vehicles, or smoke, or by any other
casualty of a substantial enough nature to cause delay.
15.10 Successors. This Lease shall be binding upon and insure to the
-----------
benefit, as the case may require, of the parties hereto and their respective
heirs, executors, administrators, successors and assigns.
15.11 Subordination. This Lease shall be subject to and subordinate at all
--------------
times to the Restrictive Covenants covering Carolina Central Industrial Center
recorded in Book 716 at page 613, Alamance County Registry, which are attached
hereto, and the Tenant agrees that it will not by any act or omission on its
part, cause the same to be violated as more particularly set forth in Section
4.4. hereof.
This Lease shall be further subject to and subordinate at all times to the
lien of any mortgage, mortgages or deeds of trust now or hereafter made by
Landlord on the Leased Premises and to all advances made or hereafter to be made
thereunder. This subordination provision is self-operative and shall be
applicable during the period prior to the execution of the agreement provided
for by paragraph 15.2, and shall further be operative and applicable if the
agreement referred to in paragraph 15.2 is for any reason never executed, the
Landlord agreeing that it will make all reasonable efforts to procure the
execution of that agreement so referred to in Section 15.2. In addition to the
foregoing provisions and notwithstanding any non-execution of the agreement
provided for in paragraph 15.2, the Tenant will, during the continuance of its
occupancy hereunder, nevertheless execute and deliver such further instruments
confirming such subordination or status of this Lease as may be required by the
Landlord for financing or refinancing the Leased Premises.
15.12 Assignment of Landlord's Interest. If Landlord should ever assign
----------------------------------
this Lease or the rents hereunder to a creditor as security for a debt, Tenant
shall, after notice of such assignment and upon demand by Landlord or the
assignee, pay all sums thereafter becoming due Landlord hereunder to the
assignee and give all notices required to be given Landlord hereunder both to
Landlord and the assignee.
15.13 Transfer by Landlord. If Landlord sells, leases or in any manner
---------------------
transfers title to the Leased Premises, including foreclosure sale by judicial
proceeding or otherwise, the Landlord shall be relieved of all covenants and
obligations arising hereunder, provided the Landlord is not then in default
hereunder and that such transferee shall agree to assume all covenants and
obligations of the Landlord hereunder. Tenant agrees that it will attorn to such
transferee, provided such transferee has assumed Landlord's covenants and
obligations hereunder, and Tenant shall continue to perform all of the terms,
covenants, and conditions and obligations of this Lease.
15
15.14 Limitation of Execution against Landlord. If Tenant obtains a money
-----------------------------------------
judgment against Landlord, any of its partners or its successors or assigns
under any provision of, or with respect to this Lease or on account of any
matter, condition or circumstance arising out of the relationship of the parties
under this Lease, or of Tenant's occupancy of the Property, Tenant shall be
entitled to have execution upon such judgment only upon Landlord's estate in the
Leased Premises, and not out of any other assets of Landlord, any of its
partners, or its successors or assigns; and Landlord shall be entitled to have
any such judgment so qualified as to constitute a lien only on the fee simple
estate subject to any liens antedating any such judgment except that this
limitation shall not apply to the extent that any such judgment against Landlord
is covered by insurance. Nothwithstanding the foregoing, in the event Tenant
obtains a money judgment against Landlord, any of its partners, successors or
assigns by reason of any breach of Landlord's representation regarding
Environmental Matters in Section 4.3 hereof or the indemnification obligations
of Landlord contained therein, Tenant shall be entitled to satisfy such judgment
and recover from the party or parties against which the judgment is entered up
to the greater of (i) the value of Landlord's estate in the Leased Premises, or
(ii) $100,000.
15.15 Time of Essence. Time is of the essence in this Lease.
----------------
IN WITNESS WHEREOF, the parties have executed two identical counterpart
originals of this instrument, the Landlord retaining one thereof, and the Tenant
retaining the other, the day and year first above written.
WITNESS: LANDLORD: Industrial Development Associates
By: /s/ Xxxxx X. Xxxxxx, Pres.
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Heritage Properties, Inc.
Authorized Agent
WITNESS: TENANT: Stoneridge, Alphabet Division
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxx
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16
STATE OF MARYLAND
COUNTY OF Baltimore
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I, Xxxxxx X. Xxxxx, a Notary Public of said County and State, do hereby
certify that Xxxxx X. Xxxxxx personally came before me this day and acknowledged
---------------
that he is the President of Heritage Properties, Inc., agent for Industrial
--------- ------------------------- ---------
Development Associates, a Maryland limited partnership, and that, by authority
duly given and as the act of said corporation as agent for said limited
partnership acting in its behalf, the foregoing instrument was signed in the n e
of Heritage Properties, Inc., as agent by its president. Witness my hand and
official seal this 5th day of February, 1998.
--- --------------
/s/ Xxxxxx X. Xxxxx
Notary Public
My Commission Expires: 8/1/98
STATE OF
---------------
COUNTY OF
---------------
I, , a Notary Public of said County, do hereby certify that
----------
personally came before me, this day and acknowledged that he is
------------
manager of Stoneridge, Alphabet Division, the company, and that, by authority
-----------------------------
duly given and as the act of said company the foregoing instrument was signed in
the name of Stoneridge, Alphabet Division, by a manager. Witness my hand and
-----------------------------
official seal, this day of , .
--- -------- ----
Notary Public
My Commission Expires:
17
Schedule of Exhibits to
Lease between Industrial Development Associates
and
Stoneridge, Alphabet Division
Exhibit A Description of Leased Premises
B Landlord's Plans
C Tenant's Plans
D Restrictive Covenants
H Site Plan
F Rider
18
